People v. Schultz

IN THE SUPREME COURT OF
CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL JOSEPH SCHULTZ,
Defendant and Appellant.

S114671

Ventura County Superior Court
CR49517

November 23, 2020

Chief Justice Cantil-Sakauye authored the opinion of the
Court, in which Justices Corrigan, Liu, Cuéllar, Kruger,
Groban and Goethals* concurred.

________________________
*
Associate Justice of the Court of Appeal, Fourth Appellate District,
Division Three, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
 PEOPLE v. SCHULTZ
S114671

Opinion of the Court by Cantil-Sakauye, C. J.

A jury convicted defendant Michael Joseph Schultz of the
first degree murder of Cynthia Burger (Pen. Code, § 187,
subd. (a)),1 and found true the special circumstance allegations
that the murder was committed while defendant was engaged
in the commission of rape and burglary (§ 190.2,
subd. (a)(17)(C), (G)). After a penalty phase trial, the jury
returned a verdict of death. Defendant moved to modify his
sentence to life without the possibility of parole. (§ 190.4,
subd. (e).) The trial court denied the motion and sentenced him
to death. Defendant’s appeal is automatic. (§ 1239, subd. (b).)
We affirm the judgment in its entirety.
I. FACTS AND PROCEDURAL BACKGROUND
A. Guilt Phase Evidence
1. Prosecution evidence
Cynthia Burger lived in a condominium complex in Port
Hueneme, a city located in Ventura County. Around 3:30 a.m.
on August 5, 1993, her neighbor was preparing to leave for work
and was surprised to see that Burger’s garage door was open.
Finding that sight unsettling, the neighbor sat in his car in front
of Burger’s garage. After hearing and seeing nothing for several
minutes, he left for work.

1
All further statutory references are to the Penal Code
unless otherwise indicated.
 PEOPLE v. SCHULTZ
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About two hours later, another neighbor awoke to the
smell of smoke and saw that Burger’s condominium was on fire.
Police officers were first on the scene, but they were unable to
get far into the home because of the thick smoke. Firefighters
soon arrived and quickly extinguished the fire, which was
confined to an upstairs bedroom. When firefighters searched
the rest of the residence, they found Burger’s lifeless body
facedown in a half-filled bathtub located on the first floor. Her
matted hair was an unnatural yellow-orange color that was
coated with a foamy soap-like substance. Fire personnel pulled
her from the water and attempted to revive her, but they
abandoned their efforts when it was apparent she was dead.
Police officers collecting evidence from the scene found no
signs of forced entry. They discovered, however, that the
condominium’s smoke detectors had been removed or disabled.
Burger’s sister was called to the scene and informed officers that
Burger’s purse containing her wallet and credit cards was
missing.
Later that day, Ventura County’s Chief Medical
Examiner, Dr. Ronald O’Halloran, performed on autopsy on
Burger’s body. Dr. O’Halloran noted that Burger had petechial
hemorrhages on the skin of her face, her eyelids, and the whites
of her eyes. She also had abrasions under her chin, bruising on
her neck, and a fractured hyoid bone. He concluded based on
these observations that the cause of death was manual
strangulation. Dr. O’Halloran also concluded that Burger was
already dead when the fire started because there was no
evidence she had inhaled smoke and no evidence of carbon
monoxide in her bloodstream.

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Dr. O’Halloran examined Burger’s genital area and
discovered three lacerations in the pubic area and bruising in
the lower portion of the vagina. He concluded that Burger had
been forcibly penetrated. Dr. O’Halloran swabbed and
aspirated Burger’s vaginal canal to recover possible seminal
fluid. He then conducted a microscopic examination from one of
the swabs and observed sperm. He released the swabs and
vaginal aspirant to the Port Hueneme Police Department. The
material was preserved for future testing.
Two weeks after the fire, an expert in fire reconstruction
visited the condominium to determine the fire’s point of origin,
characteristics, and duration. According to the expert, the fire
started when an open flame was applied to synthetic bedclothes
at the foot of the bed, erupted quickly, and was rapidly
extinguished. The expert concluded the fire was set
intentionally.
The investigation into Burger’s death went unsolved for
several years. In March 1996, three years after the killing, the
assistant laboratory manager at the Ventura County Sheriff’s
Department crime lab contracted with Orchid Cellmark
Laboratories (Cellmark) to extract DNA from the vaginal
aspirant (also referred to as a vaginal wash) produced by
Dr. O’Halloran during the autopsy. Cellmark successfully
extracted DNA from the sperm cells present in the vaginal wash
and the evidence was returned to the crime lab.
Meanwhile, around the time of the killing, defendant
became romantically involved with Therresa Mooney. The two
broke up at one point but had resumed dating when defendant
was sentenced to prison in 1996 for other crimes. Mooney
visited defendant in prison regularly. Defendant’s mother,

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Bruni Loprieato, had previously been estranged from defendant
but often joined Mooney to visit defendant.
In 1999, three years into his prison sentence and six years
after Burger’s death, defendant was transferred to a low
security fire camp. By August of that year, defendant and
Mooney were engaged to be married and they expected,
incorrectly, that he would be released within six months.
Mooney was therefore incredulous when defendant asked her to
help him escape.
Mooney testified at trial about her conversations with
defendant. She stated that defendant explained to her that
prison authorities soon would be taking a DNA sample from
him, which might implicate him in a prior crime. Defendant told
Mooney that he and a companion were burglarizing a home
when the homeowner awoke and confronted them. Defendant
claimed the homeowner cut him on the forearm with a butcher
knife as defendant attempted to flee, and that his companion
then killed the homeowner.
Defendant feared he would be held responsible for the
homeowner’s death, and asked Mooney to bring a car and to
meet him outside the fire camp between bed counts. He
explained that he wanted Mooney to give him a ride to a bus
station or airport, and that he might flee to live with a relative
in Germany. Mooney refused defendant’s request to help him
escape, saying that he should not run from the situation because
“if that’s really the way it happened,” defendant would not be
charged.
Mooney testified that she visited defendant about one
week later, this time accompanied by Loprieato. On the drive to
the fire camp, Mooney told Loprieato about defendant’s request

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for help to escape. Both women were angry and hurt, and they
made clear to defendant they would not assist him in escaping.
At one point during the visit, Loprieato went to the bathroom
and Mooney told defendant that she loved him and was “there
for [him],” but that she was skeptical of his story. Mooney asked
defendant whether he had killed someone. Defendant said that
he had. Prompted by a “weird feeling,” Mooney asked whether
the victim was a woman and whether he had raped her.
Defendant again said yes. He then told Mooney that the victim’s
name was “Cindy Burger” and that the killing happened on
August 4 or 5, 1993. He suggested that Mooney search the local
newspapers for coverage of Burger’s death, saying that he had
set a fire during the incident and that it was covered in the news.
Loprieato then returned, and the group resumed talking about
defendant’s plan to escape. Neither Mooney nor defendant
mentioned Burger to Loprieato at that time.
Mooney stated that when she left the fire camp, she and
Loprieato agreed not to tell anyone about defendant’s plan to
escape. Mooney did not tell law enforcement about the plan or
defendant’s admission regarding Burger’s death because she
was afraid and “wanted it to all be not true.” She eventually
went to a library and located a newspaper article about the
killing. She brought the article with her when she visited
defendant the following weekend. Mooney gave defendant the
article to read. At one point, he stopped reading and said the
article was wrong in stating that Burger had been wearing a
nightshirt. Mooney read the rest of the article to defendant and
demanded that he tell her what happened. Defendant agreed
and answered Mooney’s questions regarding the circumstances
surrounding the rape and killing.

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Mooney also testified that defendant told her that he had
used a lot of methamphetamine earlier in the day and stumbled
upon Burger’s open garage between 2:30 and 3:00 a.m. He said
he entered the garage intending to steal something, but then
found a key that unlocked the door separating the garage from
the residence.2 He went inside, looked around the first floor,
went upstairs, found Burger nude on her bed, and raped her.
When Mooney asked defendant if Burger fought back, he said,
“No, actually she seemed to like it.” Defendant told Mooney that
at one point Burger scratched either his face or his chest.
Mooney recalled that sometime around August 1993 she had
seen marks on defendant’s face.
Defendant answered more of Mooney’s questions about
the killing. Defendant explained that he had smothered Burger
with a pillow and that he killed her because he was “too
identifiable.” He said that he placed Burger’s body in the
downstairs bathtub and filled it with water, bleach, and other
household chemicals to “kill any DNA.” Defendant told Mooney
that, fearing he could be identified by DNA from hair or sperm
on Burger’s bed, he went back upstairs and used a candle to light
the bed on fire. He also explained that before leaving the scene,
he took some items to make it appear that Burger’s residence
had been burglarized.
After defendant had answered Mooney’s questions, she
mentioned that her friend knew a City of Ventura Police
Department employee who, for a fee, could check to determine

2
Mooney admitted at trial she had testified during the
preliminary hearing that defendant told her he did not have a
plan concerning what he was going to do when he entered
Burger’s home.

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whether any DNA evidence had been recovered from the crime
scene. She asked defendant not to attempt an escape until she
could obtain that information. Defendant agreed, telling
Mooney to ask Loprieato for the money. Mooney later gave her
friend $100 for the information; the friend reported that the
DNA from the case “wasn’t legible,” and Mooney communicated
the “good news” to defendant by telephone. Defendant then
asked Mooney to tell Loprieato about the crime.
Mooney further testified that during a subsequent drive to
visit defendant she disclosed to Loprieato what defendant had
told her about killing Burger. When Loprieato arrived at the
fire camp, she tearfully asked defendant whether what Mooney
told her was true. Defendant said, “Yes, mama, it is.” Mooney
and Loprieato decided they would not tell anyone about the
crimes.
Loprieato also testified at trial. She admitted that
defendant had asked for her help escaping from the fire camp
but asserted that she repeatedly refused to help him. She
denied that defendant told her he wanted to escape because of
any concern regarding DNA, but she admitted he said that
something he had done in the past was going to “backfire” on
him. Loprieato also denied that defendant ever confessed to her
that he had raped and killed Burger. She did, however, admit
that Mooney had told her about defendant’s confession and the
possible DNA evidence during one trip to visit defendant, that
she believed Mooney, and that she had no reason to think
Mooney would lie about the confession. When Loprieato
approached defendant at the fire camp that day, she said to
defendant, “[W]hat have you done?” He proceeded to cry, put
his head down, and walk away.

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Loprieato agreed that she and Mooney made a pact not to
tell anyone about defendant’s confession. Loprieato testified
that although defendant never personally told her he had
committed the crime, he also never told her he had not killed
Burger. Similarly, Mooney testified that defendant continued
to write to her after he was implicated in Burger’s death and
leading up to his capital trial, but that he never denied killing
Burger.
In August 2000, one year after defendant had disclosed to
Mooney the details of Burger’s rape and killing and several
months before defendant’s expected release from the fire camp,
Mooney told her daughter about defendant’s confession.
Mooney’s daughter told Mooney to call the police, or she
(Mooney’s daughter) would. That day, Mooney placed an
anonymous call to the City of Ventura Police Department to
report that she had information regarding Burger’s death.
In October 2000, investigators contacted Loprieato and
asked her about Burger’s death. Loprieato denied knowing
anything about the incident. After she spoke with investigators,
Loprieato met with Mooney at a restaurant. Unbeknownst to
Loprieato, Mooney was wearing a recording device. Loprieato
told Mooney that she was “playing dumb” when she spoke with
investigators, and that she would deny knowing anything about
Burger’s death. She reported that she had talked to defendant
about Burger’s death, saying, “I said to [defendant] what in the
world possibly could have happened to him to murder
somebody?” And she told Mooney that telling the police
anything “is not helping you and it’s not helping him. And you
know something, I think to myself fuck the system. Do you
know how many people who have money would have gotten
away with it?” At trial, Loprieato admitted to making those

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statements, although she denied talking with defendant directly
about the killing, saying her statement was taken out of context.
She explained, too, that she was upset, trying to comfort a
“hysterical” Mooney, and attempting to protect her son.
Later in October 2000, Loprieato became extremely
distraught about Burger’s death. She talked with a family
friend, Alan Bice, about whether to be truthful with law
enforcement about what she knew. Bice told Loprieato she
should be honest with investigators. Bice also testified that
Loprieato told him that defendant had admitted to her that he
had killed a woman.3 Six days later, Bice spoke with
investigators regarding his conversation with Loprieato. Later
that day, Bice accompanied Loprieato to the prosecutor’s office
where she talked with investigators and related what she knew.
About one month later, investigators obtained blood
samples from defendant. The blood samples were sent to
Cellmark, where they were compared with the DNA collected
from sperm found during Burger’s autopsy. DNA testing
showed the likelihood that the sperm collected during Burger’s
autopsy came from a Caucasian other than defendant was one
in 24 times 10 to the 18th power. In other words, the DNA
evidence showed a match.

3
On cross-examination, defense counsel pointed to
statements Bice made to law enforcement in an attempt to cast
doubt on Bice’s testimony. Bice acknowledged that some of his
prior statements were ambiguous but maintained at trial that
Loprieato had told him that defendant personally confessed to
her.

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2. Defense evidence
The defense presented no affirmative evidence at the guilt
phase of trial.
B. Penalty Phase Evidence
1. Prosecution’s case in aggravation
The prosecution’s case in aggravation included testimony
and documentary evidence regarding defendant’s prior
convictions and various uncharged acts of violence or threats of
violence. In addition, three of Burger’s family members
described how Burger’s death had affected them.
a. Prior convictions
The jury learned that defendant had been convicted of
residential burglary in September 1992, that he was initially
sentenced to probation but eventually sent to prison in
December 1992, and that he was released on parole in June
1993.
The jury also learned that in 1996, three years after the
killing, defendant pleaded guilty to six charges, including
second degree burglary, felony battery resulting in serious
bodily injury to a police officer, being under the influence of a
controlled substance, and other misdemeanor offenses. These
convictions stemmed from an incident that occurred on the
Ventura campus of California State University, Northridge.
Two officers, Thomas Avery and Alex Marquez, discovered
defendant using tools to break into a vending machine coin box
in the student lounge. According to the officers, they drew their
guns and ordered defendant to put down his tools and lie on the
floor. Defendant dropped the tools, but then ran at full speed

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toward the officers and was able to slip between them.4 The
officers chased defendant down several hallways and a flight of
stairs, cornering him inside an underground parking garage.
During the pursuit, the officers unsuccessfully used pepper
spray and baton strikes to attempt to stop defendant. At one
point they held defendant down on the ground of the garage with
both officers on top of him. Defendant managed to hoist himself
up into a squatting position and move toward a door leading
outside the garage. Defendant opened the door, and he and the
officers tumbled onto the ground outside. Defendant continued
to struggle to get away while Avery and Marquez held him
down, striking him each time he attempted to get up. Defendant
was subdued and handcuffed only after five additional officers
arrived and assisted in the arrest. The parties stipulated at trial
that a sample of defendant’s blood that was taken on the day of
the incident tested positive for methamphetamine.
Officer Marquez testified that several times during the
incident defendant reached for or grabbed Marquez’s holstered
sidearm, leading Marquez to fear for his life. Officer Avery
testified that he never saw defendant reach for Marquez’s
firearm; he acknowledged that there were times when Officer
Marquez and defendant were out of his sight, and that he would
have been watching for defendant to reach for the firearm.
Officer Marquez, for his part, stated there was “no doubt in [his]
mind” that defendant was reaching for his firearm. He
described the incident as “the most violent confrontation I had
in my entire life.” As a result of the injuries he suffered during

4
Officer Marquez testified that defendant did not drop the
tools until he (Officer Marquez) struck him in the chest with a
police baton.

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the arrest, Officer Marquez had to undergo eight surgeries on
his knees and one on his back. Officer Avery said he had never
been involved in a struggle that was so violent; he dislocated a
finger while punching defendant to keep him subdued.
b. Uncharged crimes of violence
The prosecutor called several witnesses to testify about
prior uncharged incidents involving violence by defendant.
Michael Hecht testified that he met defendant in April or
May of 1989 when Hecht moved from Las Vegas to Redlands,
California. Hecht’s mother was dating defendant’s father at the
time, and Hecht and defendant worked at defendant’s father’s
refrigeration repair business; Hecht slept on a couch at the
business. That June, defendant’s father abruptly demanded
Hecht leave. As Hecht was gathering his possessions, he asked
his mother to leave with him because she and defendant’s father
had been fighting. Defendant and his father later attacked
Hecht and beat him, saying, “you’re dead.” Defendant grabbed
Hecht around the neck with one arm and punched him
repeatedly in the face with the other arm. At one point, after
Hecht had been wrestled to the ground, defendant banged
Hecht’s head against the pavement. Defendant’s father told
defendant that he was going to retrieve a firearm. Hecht
responded by slashing at his attackers with a pocketknife and
eventually was able to get away. He suffered a dislocated jaw,
a bloody nose, a concussion, and rib injuries.

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Defendant’s stepfather, Nick Loprieato,5 testified about
another incident that occurred in early 1991. He stated that he
was upstairs in the family home when he overheard defendant
and defendant’s mother arguing over defendant’s use of the
family’s washing machine. When Mr. Loprieato told defendant
that he “ought to respect [his] mother,” defendant grabbed him,
placed him in a chokehold, and said, “I could hurt you if I want
to.” Defendant’s mother called the police. A police officer
testified that Mr. Loprieato reported that defendant had
threatened to kill him, although at trial Mr. Loprieato said he
did not remember such a threat.
Therresa Mooney also testified about several incidents
involving defendant’s acts of violence. One incident occurred
around September 1993 at the beginning of their relationship
when defendant became angry with Mooney for socializing with
a male friend at a beach party. According to Mooney, she and
defendant argued, and defendant and the man got into a scuffle.
When defendant went to his car, Mooney’s friend picked up a
metal pipe that was part of a trampoline to defend himself.
Defendant then drove at Mooney’s friend, who “kind of hit the
front of the car . . . [and] jumped and rolled over the side of the
car . . . .” Mooney’s daughter gave a similar account of the
incident.
Mooney also described defendant’s assaults on her. On
one occasion in late 1994, defendant and Mooney were in a car
accident together and Mooney was in intensive care for two
weeks. After she was released from the hospital, she and

5
To avoid confusion, this opinion refers to Nick Loprieato
as “Mr. Loprieato” and refers to defendant’s mother, Bruni
Loprieato, as “Loprieato.”

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defendant argued over his drug use and he kicked or kneed her
in the buttocks. During a later argument over defendant’s drug
use, he kneed Mooney in the buttocks, hitting her tailbone. In
an incident that occurred after Mooney had broken off the
relationship due to defendant’s continued drug use, defendant
ingested methamphetamine, took Mooney’s house and car keys,
refused to return them to her, and twisted her hand backward
when she confronted him. Mooney’s daughter called the police.
Mooney also testified that on one occasion when defendant was
trying to convince Mooney not to end the relationship, he
threatened to smash her television. She was able to convince
him to leave her house, and she closed and locked the door.
Defendant then broke through the door, knocking her down in
the process.
Mooney also testified that in early 1995, after she and
defendant separated, she went on a date with a man named
Darryl Allen. When she returned home with Allen after the
date, defendant rushed at the car yelling at Allen and pulled
Allen from the vehicle. Allen retrieved a sledgehammer handle
from the back of his car, and he and defendant struggled.
Defendant put Allen in a chokehold and was able to take control
of the sledgehammer handle. Allen got back into his car to leave,
and defendant broke the car windshield with the handle.
Mooney’s daughter corroborated this account, including that
defendant broke Allen’s windshield. Allen testified and
provided a slightly different account of the events. Allen stated
that he drove to Mooney’s house alone and saw defendant and
Mooney arguing in the street. Allen exited his car, and
defendant started yelling at him, ripped Allen’s shirt from his
body, and punched Allen in the head. Allen then retrieved the
sledgehammer handle from his car, and defendant put him in a

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chokehold. Allen could not say how his car windshield had been
damaged; he believed it may have occurred when he was
retrieving the sledgehammer handle and defendant grabbed
him.
Richard Bowens described an incident from April 1995 in
which defendant became angry with Bowens’ girlfriend
concerning her failure to repay a $5 debt. Defendant grabbed
her shirt collar and shook her, prompting the woman to call out
for help. Bowens came between defendant and the woman and
told defendant that she would repay the debt when she could.
As defendant walked away, however, he turned and threw a
punch at Bowens that “grazed” his cheek. Police responded but
no charges were filed; Bowens said that he did not pursue the
matter after defendant begged him not to.
c. Victim impact evidence
The prosecution called Burger’s father, mother, and older
sister to testify regarding the effect Burger’s death had on them
individually and as a family. Burger’s father, Had, testified that
his daughter’s death left him with a feeling of emptiness.
Burger’s mother, Virgie, described the pain she felt after
learning of the killing. And Burger’s sister, Sandra, described
the bond she had with her sister and her reaction upon hearing
of her sister’s death.
2. Defense case in mitigation
The defense case in mitigation included testimony from
defendant’s family members, expert witnesses, and lay
witnesses. Defendant’s family members described defendant’s
upbringing in an environment of drug abuse and domestic
violence, the mental abuse inflicted on him and his siblings by
his father, and defendant’s use of drugs beginning at an early

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age. Other witnesses testified regarding defendant’s heavy drug
use and addiction to methamphetamine during his adult years
and the behaviors he exhibited in connection with that
addiction. The defense also presented testimony from an expert
in addictive medicine and expert testimony from a psychologist
regarding how an individual can be affected by witnessing and
experiencing domestic violence as a child. Finally, the defense
called several lay witnesses and a penology expert to testify
regarding defendant’s prospects for a successful adjustment to
life in prison without the possibility of parole.
a. Defendant’s upbringing and family background
Defendant’s half sister and brother described growing up
in a household beset by parental neglect, drug abuse, and
frightening domestic violence perpetrated by defendant’s father.
Defendant’s mother was the family’s primary income
earner and she spent long hours working as a hairdresser. From
a young age, defendant and his brother were generally left in
the care of their sister, who was five years older than defendant.
The children were often left alone at night.
Defendant’s father punished the children frequently, and
all three children were punished for the digressions of one. His
methods included beating them with a belt and forcing them to
kneel on the kitchen floor for lengthy periods of time.
Defendant’s father would belittle the children, often in an
interrogation-like setting that lasted for hours. According to
defendant’s sister, it was common practice for her and her
brothers to be awakened in the middle of the night for
punishment and then to be forced to stay awake. She described
their existence as akin to living in “a hostage situation” with a

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“sort of terrorist” because they had no idea what was going to
anger their father.
Defendant’s siblings testified that defendant’s father also
forced the three children to witness the physical abuse he
inflicted on their mother. For example, in the children’s
presence and while in a drunken rage, defendant’s father
pummeled their mother with his fists after she had mentioned
the possibility of a separation. Defendant’s sister remembered
another incident that occurred after their mother had fled the
home. After their mother had driven off, their father placed the
three children in his car to hunt her down, telling the terrified
children he would kill their mother when he found her.
Defendant’s brother described another occasion after their
mother had fled the house with their sister. Their father
grabbed his shotgun and put defendant’s brother and defendant
in the car, telling them that something bad would happen to the
boys if he could not find their mother.
Defendant’s siblings further testified that their father
used illegal drugs in the home, and would ingest “speed” and
cocaine in front of them. With his ever-increasing drug use,
their father became more paranoid and began threatening the
children with the firearms he kept at home.
According to defendant’s brother, beginning when
defendant was nine or 10 years old, he and defendant would
experiment with their father’s drugs, including “speed” and
marijuana. Around that time, they also started drinking hard
alcohol and beer. Defendant’s sister recalled that the drugs
made defendant agitated, and that he and his brother would hit
and burn each other with cigarettes when they were under the
influence.

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Defendant’s sister also testified that her father had
sexually molested her beginning when she was eight or nine
years old. To avoid him, she would often sleep in her brothers’
bedroom, sometimes under the bottom bunk bed. She kept the
molestations a secret. Defendant’s brother recalled that his
sister would occasionally sleep in the room he shared with
defendant. He remembered that on one of these nights their
father came into the room, drunk, around 2:00 or 3:00 in the
morning and lay down next to their sister. When their father
put his arm around her and said he loved her, defendant’s
brother stirred loudly, as if he had just woken up, and then got
out of bed to walk to the bathroom. As he walked out, he
overheard his sister say to their father something like, “It’s not
right.”
When defendant’s sister was about 17 years old, she heard
defendant’s father trying to enter the locked door to her
bedroom. When she saw that he had then gone outside the
house to try to break into her room through the window, she fled
to a bathroom and locked the door. Her father, who was clad
only in his underwear, began banging on the bathroom door
yelling for her to come out. The commotion brought defendant
and his mother and brother to the scene, and they observed
defendant’s father punch a hole through the bathroom door to
get inside. Defendant’s sister cowered in the corner, crying and
shaking. Defendant’s mother testified that when she angrily
asked her husband what was going on, he threatened her.
A short time after that incident, defendant’s sister
permanently left the home. Two or three weeks later, after
defendant’s father threatened to kill defendant’s mother if she
did not bring defendant’s sister back, defendant’s mother moved
out of the house and filed for divorce.

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Opinion of the Court by Cantil-Sakauye, C. J.

Defendant and his brother were 12 and 14 years old,
respectively, when their mother and sister departed. The boys
were left mostly in the care of their father, who provided them
with no structure, control, or stability. Defendant and his
brother moved from place to place with their father. During this
time, defendant used cocaine, methamphetamine, and other
drugs, sometimes with his father. By then, defendant had
stopped going to school and would often hang around at an
arcade.
After defendant’s parents divorced, defendant’s father
became romantically involved with Jacqueline White.
Defendant and his father lived with White when defendant was
about 15 years old. She testified that during the time defendant
and his brother resided in her home, defendant was quiet and
considerate, and very nurturing to her young son. White was
distressed by the abuse and punishment that defendant’s father
imposed on his sons, and she eventually became the target of his
wrath as well. On one occasion after defendant’s father and his
sons had moved to a different residence, they came to stay with
White for the weekend. During the evening, defendant’s father
became enraged and pushed White up against a wall.
Defendant stepped in, pulled his father off of White, and
managed to get him to stop the attack. White described another
similar incident when defendant stepped in to protect his
brother from their father’s abuse.
Defendant’s paternal aunt testified that her father
(defendant’s paternal grandfather) was abusive, controlling,
and unpredictable, and that she, defendant’s father, and their
mother had been subjected to the same type of abuse that
defendant’s father later meted out to his own wife and children.

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 PEOPLE v. SCHULTZ
Opinion of the Court by Cantil-Sakauye, C. J.

b. Defendant’s drug use as an adult
Defendant’s mother testified that when defendant was
about 18 years old he came to live with her and her new
husband. She asked defendant to leave, however, after his drug
use became more frequent and he had refused to attend the
airline mechanics school in which they had enrolled him.
Kenneth Ross testified that he first met defendant when
defendant was in his early twenties. At that time, Ross found
defendant to be a helpful and humble person who enjoyed down-
to-earth pleasures like walking on the beach and taking their
dogs out to play together. Several years later, Ross started
supplying defendant with methamphetamine. For the next
three or four years, they regularly used the drug together.
Ross explained that when he (Ross) was under the
influence he became a “totally different” person, doing things he
would never think of doing while sober. Ross also described the
changes he noticed in defendant’s personality after regular use
of methamphetamine. Specifically, Ross found defendant was
less likely to be helpful or generous. Instead, defendant grew
cold and self-absorbed. And when the effects of the drug were
wearing off, defendant could be intimidating and even
aggressive. Ross related that on one occasion, defendant
knocked him to the ground.
Defendant’s friend, Chad Hoffman, described similar
observations. Hoffman testified that he used
methamphetamine regularly with defendant, and that
defendant would often become quiet, grumpy, and even
aggressive when the effects of the drug were wearing off.
Other evidence regarding defendant’s drug use was
provided through the testimony of the probation officer who

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 PEOPLE v. SCHULTZ
Opinion of the Court by Cantil-Sakauye, C. J.

prepared a presentencing report in connection with defendant’s
1996 guilty plea. During the interview with the officer,
defendant blamed the incident on his use of methamphetamine.
In summarizing his lengthy history of drug addiction and abuse
for the officer, defendant indicated that beginning at 15 years
old he snorted cocaine on a monthly basis, and that between the
ages of 22 and 24 his use of this drug increased significantly
until he was incarcerated. Defendant also reported that
between the ages of 15 and 20 he smoked marijuana daily. And,
with regard to his use of methamphetamine, he told the officer
that in his early twenties he snorted or smoked one-quarter
gram of methamphetamine every day.
c. Defense expert testimony
i. Drug addiction
The defense called as a mitigation witness an addiction
medicine expert, Alex Stalcup, M.D., who provided the jury with
detailed information about drug addiction and its effects. He
explained that a “drug of abuse” is a chemical that
overstimulates the neurotransmitters of the brain’s pleasure
centers. Such overstimulation changes the brain’s physiology
by damaging the pleasure systems, which in turn interferes with
the drug addict’s ability to experience pleasure without the use
of drugs. For a drug addict, the overstimulation of the pleasure
center’s neurotransmitters leads to the need for a higher dose of
the drug to achieve the same high, and with that need comes the
inability to control or stop their drug use. And because drug
addiction renders an individual incapable of experiencing
pleasure without drugs, he or she avoids sobriety, which
becomes a state of emptiness and boredom that can become
intolerable.

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 PEOPLE v. SCHULTZ
Opinion of the Court by Cantil-Sakauye, C. J.

Dr. Stalcup further explained that factors such as genetic
makeup and life experiences can predispose an individual to
drug addiction. For example, when children use drugs during a
tumultuous time the drugs not only make them feel good but
also allow them to escape the turmoil. The social context of a
child’s first use of drugs is also significant to predisposition
because a home or peer group environment that supports drug
use enables the child to obtain enough drugs to damage his or
her brain’s ability to experience pleasure.
Dr. Stalcup also discussed the factors that can lead a
susceptible person to become an addict. According to
Dr. Stalcup, “early onset use” of a high potency drug before 15
years old, when the brain’s pleasure centers are still developing,
presents a dangerous factor for progression toward addiction.
Another significant factor, he explained, is childhood trauma, be
it physiological, physical, or sexual.
With regard to the use of methamphetamine specifically,
Dr. Stalcup characterized it as a “much too powerful” drug that
if used over any extended period of time, particularly if smoked
or injected, will demonstrably injure the user’s pleasure centers.
According to Dr. Stalcup, studies have shown that some
methamphetamine users exhibit aggressive behavior because
the drug simulates the fight-or-flight response caused by
adrenaline. A methamphetamine user may become
apprehensive and hypervigilant, seeing a threat that does not
exist. Dr. Stalcup also opined that methamphetamine users do
not exercise free will but that, when intoxicated, they do what
the drug tells them to do. He further asserted that, in the case
of someone who committed a rape-murder, the drug “created
conditions that [a rape-murder] would happen.”

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 PEOPLE v. SCHULTZ
Opinion of the Court by Cantil-Sakauye, C. J.

Based on his review of the transcripts of the guilt phase
and interviews with defendant’s family members, Dr. Stalcup
believed that defendant was addicted to methamphetamine and
probably addicted to marijuana at the time of his 1996 arrest.
In explaining that opinion, Dr. Stalcup reviewed the various risk
factors shown by this evidence. For example, he found that
defendant’s family history of drug use showed he had a “high
genetic load” for addiction. He also observed that defendant was
raised in a household where he, his siblings, and his mother
suffered psychological abuse and brutal physical assaults. In
Dr. Stalcup’s view, incidents such as those described by
defendant’s family members are associated with feelings of
hopelessness, which further served to predispose defendant to
addiction. Dr. Stalcup also supported his opinion with evidence
that defendant snorted speed when he was 10 or 11 years old, at
a time when his brain function was not fully matured. This
suggested to Dr. Stalcup that the effect of that drug would be
much more potent than had it been ingested when defendant
was older.
Dr. Stalcup also found significance in the prevalence and
casualness of drug use in the household, which further enabled
defendant’s ingestion of drugs. Dr. Stalcup believed that the
description of the events that unfolded in 1996, when he fought
back violently against the officers who were attempting to
apprehend him, was a classic example of the methamphetamine
fight-or-flight phenomenon. Finally, in Dr. Stalcup’s view, the
testimony by defendant’s friends regarding defendant’s dark
mood when coming off the effects of methamphetamine was like
that of the addict who believes the way he or she feels without
the drug to be intolerable.

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 PEOPLE v. SCHULTZ
Opinion of the Court by Cantil-Sakauye, C. J.

ii. Impact of child abuse
The defense also called Bruce Gladstone, Ph.D., to testify
regarding the destructive behaviors that can be set in motion as
a result of growing up in an abusive environment. According to
Dr. Gladstone, the formative years of childhood are important
to the development of an individual’s brain and adult
personality. Child abuse can result in dysfunction later in life,
including cognitive and psychiatric problems.
Dr. Gladstone characterized as child abuse many of the
incidents that occurred during defendant’s upbringing, such as
witnessing the repeated beating of a parent, being left alone and
unsupervised, being beaten with a belt for a minor infraction,
and being exposed to drugs left around the house in accessible
places. As Dr. Gladstone explained, without a mentor or
positive role model outside the household, many children
growing up in an abusive environment tend to model the
behaviors that they see in their adult caretakers. They can
develop low self-esteem, poor impulse control, and an increased
likelihood for drug addiction as a result of the abuse. The more
severe the abuse, the more severe the damage to the child’s
development.
iii. Prospects for a positive adjustment to life
in prison
The defense called Anthony Casas, a former associate
warden for the California Department of Corrections and
Rehabilitation, as a penology expert to offer his opinion
regarding whether defendant would make a positive adjustment
if sentenced to life without the possibility of parole. According
to Casas, the record of an individual’s behavior in prison prior
to a capital offense is the best indicator of that person’s future

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 PEOPLE v. SCHULTZ
Opinion of the Court by Cantil-Sakauye, C. J.

behavior in prison. Casas opined that neither defendant’s
conviction for Burger’s rape and murder nor his asking for help
to escape from fire camp would factor into the determination
concerning whether defendant would adjust well in prison.
After reviewing defendant’s prison and jail records,
including his work and disciplinary history, Casas expressed the
view that defendant would serve out a life sentence as an
obedient and peaceful inmate. He found it significant that
defendant worked and completed a vocational training program
while housed in a high security prison after his 1996 convictions.
Only one year later, defendant’s behavior allowed him to be
transferred to the Sierra Conservation Center to train as an
inmate firefighter. On his successful completion of that
program, Casas explained, defendant was assigned to the Mount
Gleason Fire Camp, which meant he was being housed in a
facility with the least secure level of custody. As Casas
described it, individuals selected for the fire camps “are
considered the A students of the prison population.” As for
defendant’s rules violations at the fire camp and while in
custody in county jail awaiting trial in this case, Casas noted
that the records showed only minor infractions (including
smoking cigarettes and being out of bounds), and that none
involved violence against staff or other inmates. Casas did note
one incident in 1998 when defendant caused a large boulder to
fall down a hill, leading the rest of the crew to take cover to avoid
being hit. Casas acknowledged that defendant was belligerent
and disrespectful when counseled about the incident.
Finally, the defense presented four witnesses who
supervised defendant when he worked at the fire camp.
Corrections Lieutenant Gregory Sims described defendant as an
“average” inmate, noting that defendant had earned prestigious

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 PEOPLE v. SCHULTZ
Opinion of the Court by Cantil-Sakauye, C. J.

positions on the fire crew but was also counseled several times
for incidents including smoking and failing to show up for count.
Charles Lovers, the firefighter foreperson at the fire camp,
testified that defendant earned the position of first sawyer on
the fire crew. Although defendant was once relieved of his
duties for not following Lovers’ directions and creating an
unsafe environment during a fire, Lovers believed defendant
worked well and had a good attitude. Fire Captain John Bailey
supervised defendant during 24-hour shifts fighting a fire on
Catalina Island. Bailey remembered defendant as having done
an outstanding job and found that he demonstrated leadership
abilities. Firefighter Michael Bernal also supervised inmates at
the fire camp. He testified that defendant served as a tool man
responsible for sharpening the firefighting tools. Bernal
explained that the position was a coveted one at the fire camp
that required the approval of all eight of the camp’s supervisors.
3. Prosecution rebuttal evidence
The prosecution called several rebuttal witnesses to
challenge the defense case in mitigation. Former police officer
Donald MacNeil, a narcotics expert, disagreed with
Dr. Stalcup’s assertion that methamphetamine use renders a
person unable to exercise free will. In MacNeil’s opinion,
defendant’s ability to think through and execute actions to cover
up the rape and murder, such as dismantling the smoke
detectors, filling the bathtub with chemicals, and setting the bed
on fire to destroy possible genetic material showed a
“remarkable” presence of mind.
The prosecution also presented evidence to rebut
testimony regarding defendant’s prospects for a positive
adjustment to prison life. Dennis Fitzgerald, an investigator

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 PEOPLE v. SCHULTZ
Opinion of the Court by Cantil-Sakauye, C. J.

with the Ventura County District Attorney’s Office, testified
that defendant got a “white pride” tattoo while in custody
sometime after his 1996 arrest. Fitzgerald also told the jury
that while awaiting trial in the present case defendant
corresponded with Justin Merriman, once a leader of the
Ventura-based Skinhead Dogs white supremacist gang. One
letter showed that defendant referred to Merriman as “homey,”
ended his correspondence with the phrase “Long respects,” and
asked Merriman to keep in touch. Letters from Merriman to
defendant showed that Merriman referred to defendant as
“homey,” “Big Mike,” and “brother.” Merriman ended his letters
with the phrase, “With respect.”
C. The Parties’ Theories of the Case
The prosecution argued during both the guilt and penalty
phases that defendant had intentionally targeted Burger’s
home, knowing that she was “an attractive woman who lived
alone.”
Defense counsel conceded during the guilt and penalty
phase that defendant had raped and killed Burger. Counsel
argued, however, that defendant did not target Burger
specifically, but entered her home looking for items to steal
when he saw her garage door open. Defense counsel asserted
that defendant was under the influence of methamphetamine at
the time of the crime and characterized the crime as “a random
act committed by a man high on methamphetamine.” The
prosecution contested that defendant was under the influence
when the crime occurred, calling the killing “well planned,
deliberate, [and] organized.”

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 PEOPLE v. SCHULTZ
Opinion of the Court by Cantil-Sakauye, C. J.

II. JURY SELECTION ISSUES
Excusal of Two Prospective Jurors for Cause
Defendant asserts that the trial court excused two
prospective jurors for cause in violation of the constitutional
standards set forth in Witherspoon v. Illinois (1968) 391 U.S. 510
(Witherspoon) and Wainwright v. Witt (1985) 469 U.S. 412
(Witt). We find substantial evidence supporting the excusals
and uphold the trial court’s rulings.
1. Governing principles
Under state and federal constitutional principles, a
criminal defendant has the right to be tried by an impartial jury.
(Cal. Const., art. I, § 16; U.S. Const., 6th & 14th Amends.) With
regard to jury selection in a capital case, decisions by this court
and the United States Supreme Court have made clear that
prospective jurors’ personal opposition to the death penalty is
not a sufficient basis on which to remove them from jury service
in a capital case, “ ‘so long as they clearly state that they are
willing to temporarily set aside their own beliefs in deference to
the rule of law.’ ” (People v. Stewart (2004) 33 Cal.4th 425, 446,
quoting Lockhart v. McCree (1986) 476 U.S. 162, 176; accord,
People v. Covarrubias (2016) 1 Cal.5th 838, 863.) Excusal for
cause is permissible, however, when the prospective juror’s
beliefs regarding the death penalty “would ‘prevent or
substantially impair the performance of his [or her] duties as a
juror in accordance with [the court’s] instructions and [the
juror’s] oath.’ ” (Witt, supra, 469 U.S. at p. 424, quoting Adams
v. Texas (1980) 448 U.S. 38, 45 (Adams); see also People v. Ghent
(1987) 43 Cal.3d 739, 767 [adopting the Witt standard].)
We review a trial court’s excusal of a prospective juror for
cause to determine “ ‘if it is fairly supported by the record.’ ”

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 PEOPLE v. SCHULTZ
Opinion of the Court by Cantil-Sakauye, C. J.

(People v. Thomas (2011) 51 Cal.4th 449, 462, quoting People v.
Mayfield (1997) 14 Cal.4th 668, 727.) “ ‘In many cases, a
prospective juror’s responses to questions on voir dire will be
halting, equivocal, or even conflicting.’ ” (Ibid., quoting People
v. Fudge (1994) 7 Cal.4th 1075, 1094.) In such cases, “the trial
court’s findings as to the prospective juror’s state of mind are
binding on appellate courts if supported by substantial
evidence.” (People v. Duenas (2012) 55 Cal.4th 1, 10, citing
People v. Wilson (2008) 44 Cal.4th 758, 779; see also Utrecht v.
Brown (2007) 551 U.S. 1, 9 [deference to the trial court’s ruling
on a challenge for cause is appropriate because that ruling is
based in part on the court’s ability to assess the prospective
juror’s demeanor].)
2. Jury selection process
The trial court began the jury selection process by
providing several groups of prospective jurors a brief
introduction to the case, including the nature of the charges, the
structure of a capital trial, and general principles of law. After
the court excused some of the prospective jurors for hardship, it
directed those who remained to complete a 93-item
questionnaire. About one week later, after the court and the
parties had reviewed the questionnaires, approximately
70 prospective jurors assembled in the courtroom. After the
first 12 prospective jurors were seated in the jury box, the court
described for the entire courtroom a juror’s duty in a capital
case. For example, the court explained that a juror “must accept
and follow the law as I state it to you regardless of whether you
agree with the law.”
The court began voir dire questioning by asking each of
the 12 individuals seated in the jury box whether he or she had

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 PEOPLE v. SCHULTZ
Opinion of the Court by Cantil-Sakauye, C. J.

any reason to believe he or she could not be fair and impartial
to both sides in the case. After excusing some of the 12
prospective jurors for cause on its own motion and replacing
them, the court permitted counsel for both sides to question the
prospective jurors about their questionnaire responses. Neither
party challenged any of the first group of prospective jurors for
cause. The parties were then given the opportunity to exercise
peremptory challenges. The prosecutor exercised one
peremptory challenge, and another prospective juror was called
to the jury box. The court asked the newly seated prospective
juror the same question it had asked the first group — whether
she could think of any reason why she could not be a fair and
impartial juror — and then permitted the parties to question the
prospective juror, to challenge for cause, and to exercise
peremptory challenges.
Jury selection proceeded in this manner for three days
until 12 jurors and two alternates were accepted by the parties
and empaneled. During this process, Prospective Juror A.A.
was excused for cause at the prosecutor’s request, and
Prospective Juror M.M. was excused for cause on the court’s own
motion.
3. Discussion
a. Prospective Juror A.A.
Prospective Juror A.A.’s questionnaire answers indicated
that his opinion regarding the death penalty vacillated between
strong and mild opposition. For example, A.A. stated that his
views on the death penalty were influenced by his Catholicism,
and he characterized the death penalty as “unbiblical.” When
asked to choose where he stood on a numerical scale of one to
10, with 10 being strongly in favor of having a death penalty and

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 PEOPLE v. SCHULTZ
Opinion of the Court by Cantil-Sakauye, C. J.

one being strongly opposed, A.A. circled the number three and
commented that he was “kind of against but [not] sure what
[I’m] gonna do.” But he also answered “Yes” to the question
whether he had strong feelings on the use of capital punishment,
and included a comment that he was “against [the] death
penalty.” When asked what purpose, if any, he believed was
served by the death penalty, he answered, “None.”
A.A.’s questionnaire answers also provided conflicting
responses to questions regarding his ability to serve as a juror.
When asked whether his religious or moral views would make it
difficult for him to be a fair juror in a death penalty case, he
checked “Yes.” He also checked “Yes” when asked whether his
feelings against the death penalty were so strong that he would
always vote against it. At the same time, however, A.A. marked
“Yes” when asked whether he believed he could be open minded
about the penalty and whether he was willing to weigh and
consider all of the aggravating and mitigating evidence before
deciding the appropriate punishment.
When A.A. was called to sit in the jury box, the court asked
him, “Do you believe you can be a fair and impartial juror to both
sides in the case?” A.A. responded that he was “pretty sure” he
“could be fair in the first phase. But the second phase — you
know, I kind of don’t believe in the death penalty.” During
questioning by the prosecutor, A.A. elaborated on some of his
questionnaire answers. He explained, for example, that he was
against the death penalty but that “inside this court, you know,
I will follow the instruction, you know,” and, “I think I can follow
it, yeah.” When asked about his comment that he would always
vote against the death penalty, he stated, “I think I could — you
know, I could — as I said, I could follow the instruction, you
know. I would — I will try, you know, to be fair, you know, and

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 PEOPLE v. SCHULTZ
Opinion of the Court by Cantil-Sakauye, C. J.

follow the judge[’s] instructions. That’s all I can do, you know.”
And when asked if he could actually sign a verdict form stating
defendant should be put to death, A.A. responded that after
considering other jurors’ views, “probably I could — I could do
that, yes” and, “Yes, I could sign.” The prosecutor ended his
questioning by asking A.A., “If you have a choice between life in
prison and the death penalty as the two punishments, would you
always pick life in prison?” A.A. replied, “Well, if I have a choice,
you know, I would always pick life in prison.”
The prosecutor challenged A.A. for cause, and the trial
court granted the challenge. Defense counsel objected, arguing
that A.A. stated repeatedly that he could consider death as well
as life without the possibility of parole. The court explained that
A.A. indicated on his questionnaire and during questioning that,
if given the choice, he would always choose life without the
possibility of parole over the death penalty. In the court’s view,
that answer, in combination with A.A.’s equivocal responses to
the prosecutor’s questions and his deeply held religious
convictions, rendered A.A. unable to consider imposition of the
death penalty “as any possibility.” Defense counsel offered a
different interpretation of A.A.’s statement, understanding A.A.
to have meant that he would choose life without the possibility
of parole if he had a choice, but that A.A. recognized that “he
didn’t have a choice. He had to follow [the court’s] instructions.”
The court rejected that interpretation of A.A.’s response,
observing that the jurors would, in fact, have a choice: “The
Court is not going to instruct the [jurors] they must vote for
death or must vote for life without the possibility of parole.”
While a prospective juror may not be excused for cause
based on “general objections” or “conscientious or religious
scruples” against the death penalty (Witherspoon, supra,

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 PEOPLE v. SCHULTZ
Opinion of the Court by Cantil-Sakauye, C. J.

391 U.S. at p. 522), excusal is proper when a prospective juror
cannot “consider and decide the facts impartially and
conscientiously apply the law as charged by the court” (Adams,
supra, 448 U.S. at p. 45). When a prospective juror’s views
“prevent or substantially impair the performance of his duties
as a juror in accordance with his instructions and his oath” the
juror may be excused for cause. (Ibid.)
The record supports the trial court’s determination that
A.A.’s responses reflected a substantial impairment in his
ability to perform his duties as a juror. His juror questionnaire
responses revealed conflicting views on his ability to impose the
death penalty. Although he stated that he was willing to
consider all aggravating and mitigating evidence before
deciding the appropriate punishment, he also stated that his
feelings against the death penalty were so strong that he would
always vote against it. During questioning by the court, A.A.
stated he was “pretty sure” he could be “fair” during the guilt
phase, “[b]ut the second phase — you know, I kind of don’t
believe in the death penalty.” This response suggests that A.A.
doubted his ability to be fair during the penalty phase; he felt he
could be fair during the guilt phase but during the penalty phase
his opposition to the death penalty could prevent him from being
fair. An inability to be “fair” during the penalty phase would
substantially impair the performance of A.A.’s duties as a juror.
(See Adams, supra, 448 U.S. at p. 45.) This conclusion is further
supported by A.A.’s cautious responses during additional
questioning: “I think I can follow [instructions],” “I think I could
[vote for the death penalty],” “I will try, you know, to be fair,”
“probably I could [sign a death penalty verdict form].”
Defendant acknowledges that deference to a trial court’s
determinations is owed when a prospective juror’s responses are

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 PEOPLE v. SCHULTZ
Opinion of the Court by Cantil-Sakauye, C. J.

conflicting or equivocal. He asserts, however, that deference is
not appropriate here because A.A. did not exhibit ambivalence
or confusion, but instead explicitly stated he would set aside his
personal beliefs and follow the court’s instructions. Defendant
further asserts that A.A.’s responses indicated he distinguished
between his personal views against the death penalty and his
willingness to follow the court’s instructions.
The record shows, however, that A.A.’s responses were
conflicting and equivocal. On the one hand, he stated that he
believed he could be open minded about the appropriate penalty,
that he would try to be fair and follow the judge’s instructions,
and that he was willing to consider all of the aggravating and
mitigating evidence. On the other hand, he stated that he
believed the death penalty was “unbiblical,” that it served no
purpose, and that his moral feelings against the death penalty
were so strong that he would always vote against it. Any
responses suggesting A.A. would follow the court’s instructions
notwithstanding his opposition to the death penalty were
contradicted when he indicated, several times, that he would
always choose life without parole over the death penalty when
given a choice between the two.
Given these conflicting statements, we defer to the trial
court’s determination regarding A.A.’s state of mind (see People
v. Duenas, supra, 55 Cal.4th at p. 10), and conclude the record
supports the trial court’s ruling. The trial court was able to hear
A.A.’s responses to the prosecutor’s questions and observe
firsthand his demeanor and tone. The trial court did not err in
concluding that A.A.’s assurances that he could follow the
court’s instructions notwithstanding his personal beliefs were
undermined by his conflicting responses, particularly his
statement that, if given a choice, he would always vote for life

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 PEOPLE v. SCHULTZ
Opinion of the Court by Cantil-Sakauye, C. J.

without the possibility of parole. Although defense counsel
understood A.A. to have been speaking abstractly, the court was
entitled to accept A.A.’s comment at face value particularly
given, as the trial court noted, that A.A. would have a choice
about whether to impose the death penalty or life without the
possibility of parole. The court’s assessment of A.A.’s conflicting
responses and its observation of A.A.’s demeanor and tone “could
give rise to a definite impression that [A.A.’s] views on the death
penalty would substantially impair the performance of his
duties.” (See People v. Lewis and Oliver (2006) 39 Cal.4th 970,
1007.) We therefore conclude the trial court did not err in
excusing A.A. for cause.
b. Prospective Juror M.M.
Prospective Juror M.M. indicated in her questionnaire
that she previously was opposed to capital punishment but that
when she completed her questionnaire she believed that life in
prison might be worse than death. When asked to pick a
number from one to 10, with the number 10 being strongly in
favor of having a death penalty and the number one being
strongly opposed, M.M. circled the number five, commenting
that the punishment “doesn’t really matter because, if convicted,
the defendant’s life is over anyway.” She checked “No” when
asked whether she had strong feelings on the subject of the use
of capital punishment. She checked “Yes” when asked whether
she believed she could be open minded about the penalty
decision and would consider all of the aggravating and
mitigating evidence before making that decision.
M.M.’s questionnaire responses suggested some confusion
regarding the meaning of special circumstance murder.
Specifically, when asked how she felt regarding the death

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 PEOPLE v. SCHULTZ
Opinion of the Court by Cantil-Sakauye, C. J.

penalty as punishment for a murder with a special
circumstance, M.M. wrote that it “depend[ed] on the special
circumstance, if someone can be treated or helped with their
‘special circumstance’ then I would not vote for the death
penalty.”
During voir dire, the court asked M.M. whether she could
think of any reason why she could not be a fair and impartial
juror in the case. M.M. responded that she believed she could
be fair during the guilt phase, “but when it came to penalty, I’ve
been thinking about it for the last week and I know that I can’t
put someone to death.” The court probed further, asking, “So
you’re saying that regardless of the evidence and regardless of
the weighing in aggravation and mitigation in the penalty
phase, because of certain principles you hold, you could never
impose the death penalty. Is that what you’re saying?” M.M.
replied, “That’s what I’m saying, yes.” The court then excused
M.M. for cause on its own motion, finding that she could not be
a fair and impartial juror to both sides in the penalty phase of
trial.6
The record fairly supports the court’s finding that M.M.’s
views on the death penalty would impair the performance of her
duties as a juror. M.M. indicated in her questionnaire that she
was neutral on the subject of capital punishment. During voir
dire questioning, however, she stated that her views had

6
Defense counsel did not object to M.M.’s excusal.
Defendant’s claim is not forfeited, however, because the trial
occurred before our decision in People v. McKinnon (2011)
52 Cal.4th 610 at page 636, holding that counsel would
prospectively be required to make a timely objection to preserve
a Witt issue for appeal. (See also People v. Buenrostro (2018)
6 Cal.5th 367, 413.)

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changed and that she knew she could not vote for death. In
response to the court’s subsequent question, she confirmed that
she could never vote for death, regardless of the evidence and
the aggravating and mitigating factors. M.M.’s responses
indicating she would be unable to impose death even in an
appropriate case, when coupled with the court’s firsthand
observations of M.M.’s demeanor and tone, “could give rise to a
definite impression that [M.M.’s] views on the death penalty
would substantially impair the performance of [her] duties.”
(People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1007.)
Defendant asserts the court’s questions to M.M. did not
amount to an adequate and effective inquiry. He emphasizes
that the court never asked M.M. directly whether her opposition
to the death penalty meant she was not willing or able to set
aside her views and to follow the court’s instructions to
determine the appropriate punishment. And he asserts that
additional questioning was especially important because it was
apparent from M.M.’s responses to the juror questionnaire that
she did not understand the meaning of aggravating and
mitigating factors.
Before excusing a juror for cause, “ ‘the court must have
sufficient information regarding the prospective juror’s state of
mind to permit a reliable determination’ ” concerning whether
the juror’s views on capital punishment would impair his or her
performance as a juror in a capital case. (People v. Leon (2015)
61 Cal.4th 569, 592, italics omitted (Leon), quoting People v.
Stewart, supra, 33 Cal.4th at p. 445.) To ensure that its ruling
excusing a prospective juror for cause is consistent with the
constitutional standard, the court must make “ ‘a conscientious
attempt to determine a prospective juror’s views . . . .’ ” (Leon,

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supra, 61 Cal.4th at p. 592, quoting People v. Wilson, supra,
44 Cal.4th at p. 779.)
In Leon, three prospective jurors stated in their juror
questionnaires that they were opposed to the death penalty but
could nonetheless set aside their personal feelings and follow the
law. (Leon, supra, 61 Cal.4th at pp. 590–591.) During voir dire,
the trial court asked those jurors questions related only to
whether they were so opposed to the death penalty that they
would automatically vote for life without the possibility of
parole, but not whether they could set aside their personal
feelings. (Id. at p. 591.) The court then excused those jurors for
cause. (Ibid.) We held the court’s approach was problematic
because when confronted with the jurors’ conflicting statements,
“the court did not inquire about the jurors’ willingness to set
aside their views and follow the law . . . .” (Id. at p. 593.)
The present case is distinguishable from Leon given
M.M.’s clear and unambiguous statements during voir dire
regarding her inability to impose the death penalty. Unlike the
prospective jurors in Leon, who stated affirmatively that they
could set aside their personal views, M.M. firmly and directly
stated that her views on the death penalty had changed between
when she completed the juror questionnaire (when she stated
she was neutral on the subject of capital punishment) and when
she was questioned on voir dire (when she stated that she could
never put someone to death). The court presumably assessed
those answers in light of M.M.’s tone and demeanor. Although
M.M. indicated on her questionnaire that she did not have
strong views regarding the death penalty and that she could
follow the court’s instructions, her statements during voir dire
effectively repudiated her questionnaire responses. And her
statements during voir dire were unequivocal and

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unambiguous. She stated, “I know that I can’t put someone to
death.” The court immediately summarized and clarified her
beliefs: “So you’re saying that regardless of the evidence and
regardless of the weighing in aggravation and mitigation in the
penalty phase, because of certain principles you hold, you could
never impose the death penalty. Is that what you’re saying?”
And M.M. replied, “That’s what I’m saying, yes.”
These responses were clear and unambiguous statements
from which the trial court could properly conclude that M.M.
would not be able to set aside her beliefs and follow the court’s
instructions. (See People v. Perez (2018) 4 Cal.5th 421, 446
[upholding removal of juror during trial, finding juror’s
statement that, upon reflection, he “ ‘could not ever’ ” impose
death penalty “ ‘no matter what the aggravating circumstance
is and no matter what the mitigating circumstance evidence
is,’ ” was a “clear indication that he would not be able to perform
his duty of choosing whether a death sentence was
appropriate”]; People v. Winbush (2017) 2 Cal.5th 402, 429–430
[upholding removal of prospective juror when oral questioning
revealed the prospective juror’s views would substantially
impair her ability to return a death sentence, despite juror’s
questionnaire responses expressing a willingness to consider the
death penalty].) Defense counsel’s failure to object to M.M.’s
removal did not forfeit the claim on appeal, as we have noted,
but it does suggest that counsel “ ‘concurred in the assessment
that the juror was excusable.’ ” (People v. Souza (2012)
54 Cal.4th 90, 127, quoting People v. Cleveland (2004) 32 Cal.4th
704, 735.)
Defendant further asserts that additional inquiry was
required by the trial court because it was apparent from M.M.’s
responses to the juror questionnaire that she did not understand

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the meaning of aggravating and mitigating factors. We
disagree. Although M.M.’s questionnaire response suggested
she did not understand what was meant by a murder “with a
special circumstance” when she completed the questionnaire, it
does not shed light on her understanding of aggravating and
mitigating factors at the time she told the court that regardless
of such factors she could never impose the death penalty. As
this court has observed, “When first called to the capital venire,
prospective jurors frequently know little about death penalty
law and procedure and have reflected little on their own
attitudes.” (People v. Brasure (2008) 42 Cal.4th 1037, 1053.) We
have also recognized, however, that the voir dire process, when
conducted in the presence of the entire venire, can serve to
educate a prospective juror and help clear up
misunderstandings regarding his or her duty as a juror in a
death penalty case. (Ibid.)
Contrary to defendant’s assertion, nothing in the record
suggests that M.M., after having listened to the voir dire
questioning of the other prospective jurors, would have
misunderstood the meaning of aggravating and mitigating
factors. When examining prospective jurors before M.M. was
called into the jury box on the second full day of jury selection,
the prosecutor and defense counsel repeatedly explained what
was meant by aggravating and mitigating factors and the
process by which those factors were weighed during the penalty
determination. There is no indication, then, that M.M.’s clear
statement that she could not impose the death penalty was the
result of confusion or misunderstanding. To the contrary, the
record supports the trial court’s determination that M.M.’s
views regarding the death penalty would impair her ability to
perform her duty as a juror in the case.

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 PEOPLE v. SCHULTZ
Opinion of the Court by Cantil-Sakauye, C. J.

III. GUILT PHASE ISSUES
A. Admission of Recording of Answering Machine
Message from Burger
Defendant argues that the trial court erred prejudicially
when it admitted the recording of a message that Burger left on
the telephone answering machine of her dance class partner on
the evening before Burger’s death. Although the relevance of
the message was not particularly strong and the evidence
arguably posed some risk of undue prejudice, any error in its
admission is harmless in light of the overwhelming evidence of
defendant’s guilt.
1. Background
In a trial brief submitted prior to jury selection, the
prosecution asked the court to permit admission of a recording
of a message that Burger had left for her dance class partner,
Larry Rodriguez. In the message, left the evening before her
death, Burger discussed plans for attending dance class the next
day. The message, which is less than 30 seconds long, was as
follows: “Hi Larry. This is Cindy. And it’s about 9:15 on
Wednesday night. Give me a call back if you can, uh, or at work
tomorrow. I’d like to meet a little early before class and go over
the step from last week. Um, I just hope I don’t get too lost
tomorrow. But anyway, I had a real good, uh, trip. Look forward
to seein’ ya, and give me a call when you get a chance. Bye-bye.”
The prosecutor argued that Burger’s message was
admissible for the nonhearsay purpose of showing that she
planned to stay at home that night rather than to go out. Such
evidence, he argued, precluded any inference that Burger met
defendant while she was out and invited him back to her home.
The prosecutor also argued that the message would corroborate

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Mooney’s anticipated testimony that defendant told her he
entered Burger’s open garage intending to steal something.
In a written response to the prosecutor’s trial brief, the
defense opposed admission of the recording on the grounds that
it was not relevant to any disputed issue, that the evidence did
not satisfy the “state of mind” exception to the hearsay rule and
was therefore inadmissible hearsay, and that the “voice from the
grave” evidence was more prejudicial than probative. Counsel
also argued that the recording amounted to improper victim
impact evidence because there was little doubt that Rodriguez
would become emotional while testifying regarding the tape’s
authenticity.
At a hearing on the in limine motion, defense counsel
again asserted the message was not relevant because whether
Burger had stayed home was not an issue in dispute. The
prosecutor asserted that the prosecution had the burden of
proving defendant’s intent on entering the house, no matter
what the defense intended to dispute. According to the
prosecutor, the prosecution had “to show that this isn’t some
pickup or date that went awry” and was therefore entitled to
show Burger was planning to be home the evening she was
killed. The trial court agreed with the prosecutor that the
message was admissible for both a hearsay and a nonhearsay
purpose, and found that the probative value of the evidence
outweighed its prejudicial impact.
The message was played for the jury three times. First,
during the prosecution’s opening statement at the guilt phase.
Second, during the testimony of Rodriguez (the prosecution’s
first witness in the guilt phase). And, finally, during the
prosecution’s closing at the penalty phase. Defendant now

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Opinion of the Court by Cantil-Sakauye, C. J.

asserts the admission of the message during the guilt phase (but
not during the penalty phase) was prejudicial error.
2. Discussion
Defendant argues that the answering machine message
was not relevant, constituted inadmissible hearsay, created an
“aura of sympathy and pathos” that harmed defendant’s case,
and should have been excluded as unduly prejudicial. We
conclude that, even assuming the trial court erred by refusing
to exclude or limit the recording, any error was undoubtedly
harmless under the standard articulated in either Chapman v.
California (1967) 386 U.S. 18, 36 (Chapman) (error is prejudicial
unless it appears beyond a reasonable doubt that the error did
not contribute to the verdict) or People v. Watson (1956) 46
Cal.2d 818, 836 (Watson) (error is prejudicial if it is reasonably
probable the defendant would have obtained a more favorable
result absent the error).
There was overwhelming evidence of defendant’s guilt.
Defendant admitted to Mooney that he raped and killed Burger,
and he asked for Mooney’s help escaping from custody to avoid
detection. Mooney provided compelling testimony describing
defendant’s detailed account of the crime. She described
defendant’s statements about gaining entry into Burger’s home
through an open garage, raping Burger in her bed, strangling
her to death, placing her body in a bathtub, pouring bleach into
the bathtub, and starting a fire in her bedroom. These are
details Mooney could not have known about the crime absent
defendant’s statements to her. He gave Mooney Burger’s name
and directed her to a newspaper article by providing the date of
the incident. This testimony was consistent with the crime
scene and the assault on Burger.

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Loprieato, defendant’s mother, confirmed that Mooney
had told her about the confession and said she had no reason to
doubt what Mooney had related to her. Although Loprieato
maintained that defendant never confessed to her personally,
her surreptitiously recorded statements to Mooney stating she
would lie to law enforcement about her knowledge would have
drawn her credibility on that point into doubt. And Loprieato’s
testimony on that point was further undermined by Bice, who
told the jury that Loprieato spoke with him about whether to be
candid with law enforcement. According to Bice, Loprieato
admitted that defendant told Loprieato directly that he had
killed a woman.
Finally, DNA from sperm collected during Burger’s
autopsy matched a DNA profile developed from defendant’s
blood.7 The DNA evidence directly linked defendant to Burger’s
death. All of this evidence taken together establishes beyond a
reasonable doubt that the jury would have reached the same
verdict absent any error regarding Burger’s message to
Rodriguez.
Defendant’s main assertion regarding prejudice is that the
message tainted the jury’s determination regarding
premeditation. He contends the message “led the [jurors] to feel
that they knew Burger” and “made it difficult for them to focus
dispassionately on the elements of murder and accept the
defense that Schultz’s perceptions were so altered by

7
As discussed below, although certain testimony regarding
the DNA evidence may have been improperly admitted, the
ultimate determination that the DNA profile developed from
defendant’s blood matched the DNA from sperm found during
Burger’s autopsy was properly admitted.

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Opinion of the Court by Cantil-Sakauye, C. J.

methamphetamine that it was impossible for him to
premeditate this crime or that the crime was not premeditated
but simply a random, albeit terrible, act.” There is no support
for defendant’s position. Defendant’s statements to Mooney —
that he killed Burger because he was afraid she would be able
to identify him and that he attempted to destroy any DNA
evidence by lighting a fire on her bed and placing Burger’s body
in a bathtub with bleach — amply support a finding of
premeditation. Further, the jury found true the felony-murder
special-circumstance allegations that defendant murdered
Burger during the commission of a rape and burglary.
Defendant could be convicted of first degree murder regardless
of the jury’s determination regarding premeditation. (See
People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 848.) As
defense counsel put it during closing argument, “in a lot of ways
[premeditation] doesn’t really matter because what happened is
a felony murder any way you slice it.” Although the jury was
exposed to a “voice from the grave,” any error in the court’s
admission of the message did not prejudice defendant.
B. Admission of the Results of DNA Testing
Defendant challenges the admission of expert testimony
establishing that defendant’s DNA profile matched the DNA
profile obtained from sperm recovered during Burger’s autopsy.
He puts forward three reasons the testimony should have been
excluded: first, that Magee related testimonial hearsay in
violation of defendant’s Sixth Amendment rights because Yates
did not testify; second, that it was not admissible as a business
record under Evidence Code section 1271; and third, that the
trial court erred by failing to adequately evaluate the proposed
testimony under People v. Kelly (1976) 17 Cal.3d 24 (Kelly). We

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conclude that any error in admitting this testimony was
harmless beyond a reasonable doubt.
1. Background
Prior to trial, the prosecution sought a ruling allowing a
supervisor at Cellmark to testify regarding the procedures,
results, and maintenance of the DNA testing records relevant to
the case. At a hearing, the court initially denied the motion,
agreeing with defense counsel that to properly present the DNA
evidence the prosecution was required to call the technicians
who performed the DNA testing to testify regarding the actual
procedures they employed. On the prosecution’s motion for
reconsideration, however, the court reversed its previous ruling
and, over defense counsel’s objection, permitted the prosecution
to call Wendy Magee, the Cellmark analyst who performed a
DNA comparison in 2000 (comparing DNA profiles she created
based on samples from defendant’s blood and from sperm found
in Burger’s vagina) but who did not perform the DNA extraction
in 1996 (extracting DNA from sperm found in Burger’s vagina).
At trial, the jury heard the following testimony. Dr.
O’Halloran conducted Burger’s autopsy, discovered trauma to
her genital area, swabbed and aspirated her vaginal canal, and
observed sperm cells during a microscopic examination from one
of the swabs. Ventura County Sheriff’s Department crime lab
assistant laboratory manager Michael Parigian testified that
the lab received the vaginal swabs and vaginal aspirant (which
he referred to as a “vaginal wash”). Several years later, in
March 1996, Parigian placed some of the vaginal wash into a
microcentrifugued tube and sent it to Cellmark for the purpose
of extracting DNA. Parigian also testified that Cellmark

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returned the vaginal wash to the crime lab with a report
indicating that DNA had been extracted.
Over a continuing defense objection, the prosecution called
Magee to testify. Magee testified that in 1996 Cellmark
employee Paula Yates performed a differential extraction to
isolate DNA from the sperm and nonsperm portions of the
vaginal wash. That procedure involved separating the
nonsperm cells from the sperm cells and extracting DNA from
both to be used for future testing. According to Magee, Yates
was trained and qualified to carry out a DNA extraction and the
methods she used were accepted within the scientific
community at the time of testing and at the time of trial.
Magee further explained that Yates recorded her lab notes
regarding the extraction procedure, and that any later evidence
could be compared with the DNA obtained during the extraction
that Yates had performed. Magee confirmed that at the time of
the DNA extraction in 1996 Cellmark had no blood or tissue
sample from defendant with which to conduct a DNA
comparison.
In November 2000, a blood sample was obtained from
defendant and sent to Cellmark. Magee explained to the jury
that she performed a DNA analysis of the blood sample. She
compared that analysis to the DNA profiles she obtained from
testing the sperm and nonsperm portions of the vaginal wash.
Her testing, using short tandem repeat (STR) amplification kits,
showed that the DNA profile she obtained from the nonsperm
cells did not match the DNA profile obtained from defendant’s
blood sample. The DNA profile she obtained from the sperm
cells, however, did match the DNA profile obtained from
defendant’s blood sample.

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Opinion of the Court by Cantil-Sakauye, C. J.

2. Discussion
Defendant asserts multiple errors occurred based on
Magee’s purported testimony that she compared the DNA
profile she created from defendant’s blood sample with a DNA
profile Yates created from sperm cells recovered during Burger’s
autopsy in 1996. The factual premise of these claims is that
Magee’s conclusions relied on a DNA profile that Yates had
created, and thus necessarily communicated Yates’s findings to
the jury. Specifically, defendant asserts that Magee’s testimony
regarding the DNA profile Yates created and the “process
involved to secure” that DNA profile constituted testimonial
hearsay admitted in violation of defendant’s confrontation
clause rights under Williams v. Illinois (2012) 567 U.S. 50.
Defendant further asserts the trial court abused its discretion
in allowing Magee’s testimony under the business records
exception to the Evidence Code because Yates used her personal
conclusions to develop the DNA profile and because Yates’s
records were created for use as evidence in a criminal trial.
Finally, defendant asserts the trial court was required to
conduct a Kelly hearing to test the reliability of the DNA profile
Yates created and the methods Yates used to develop that
profile.
The record belies the factual basis for defendant’s claims.
It is apparent from the record that Magee did not rely on any
DNA profile created by Yates. Rather, Magee’s testimony
indicates that Magee herself created a DNA profile using DNA
extracted from sperm cells, that Magee herself created a DNA
profile based on defendant’s blood sample, and that Magee
herself compared the two DNA profiles. Thus, to the extent

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Opinion of the Court by Cantil-Sakauye, C. J.

defendant’s claims hinge on the premise that Magee relied on a
DNA profile that Yates created, they necessarily fail.8
To be sure, some portions of the record suggest that Yates
may have created a DNA profile in 1996. At one point during
her testimony, Magee agreed with the prosecution’s
characterization that Yates both performed a DNA extraction
and created a DNA profile from the extracted DNA.9 And in
describing the proffered testimony before trial, the prosecution
stated that Cellmark had produced a DNA profile in 1996 based
on the vaginal wash. But other portions of the record make clear
that, even assuming Yates created a DNA profile, Magee relied
on — and confined her testimony to — DNA profiles that she
created herself. Magee’s testimony describing Yates’s actions

8
For this reason, the facts here are readily distinguishable
from Williams. There, a nontestifying expert created a DNA
profile based on semen found on vaginal swabs, and a testifying
expert relied on this DNA profile to conclude that it matched the
defendant’s DNA profile. (Williams, supra, 567 U.S. at p. 60
(plur. opn.).) In this case, as we have observed, Magee created
both the DNA profile from the sperm and the DNA profile from
defendant’s blood, she compared the two profiles herself, and
she testified at trial regarding her actions and her conclusion
that the DNA profiles matched. Magee did not rely on any DNA
profile created by a nontestifying expert. We therefore need not
delve further into the fractured opinion in Williams or the
“considerable flux” surrounding the high court’s Sixth
Amendment jurisprudence in this area. (People v. Bryant,
Smith, and Wheeler (2014) 60 Cal.4th 335, 395 (Bryant); see also
People v. Dungo (2012) 55 Cal.4th 608, 628 (conc. opn. of Chin,
J.).)
9
That testimony was as follows: “[The People]: And do your
records show that the vaginal wash pellet was separated into a
sperm and nonsperm fraction or portion and DNA was extracted
from each and a DNA profile was obtained for each? [¶]
[Magee]: Yes.”

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Opinion of the Court by Cantil-Sakauye, C. J.

related only to DNA extraction, not to profile creation. And
Magee testified that she “tested the extracts from 1996” to
compare with the DNA profile from defendant’s blood sample.
There is no indication, then, that Magee compared a DNA profile
she created with a DNA profile Yates created.
Defendant also broadly asserts that evidence of the DNA
extraction Yates conducted could be admitted only through
testimony from Yates herself, rather than through testimony
from Magee. At oral argument before this court, counsel further
asserted that Magee was not qualified to testify regarding the
DNA extraction carried out by Yates because there was no
ability for defendant to cross-examine Magee regarding the
DNA extraction in any meaningful way. And without Yates’s
DNA extraction, defendant asserts, Magee’s testimony
regarding her creation and comparison of the DNA profiles could
not be admitted.
Even assuming the trial court erred under the Sixth
Amendment, Evidence Code section 1271, or Kelly by admitting
Magee’s testimony describing the DNA extraction performed by
Yates any error was harmless beyond a reasonable doubt. (See
Bryant, supra, 60 Cal.4th at p. 395 [confrontation clause
violations are subject to federal harmless error analysis under
Chapman]; People v. Ayers (2005) 125 Cal.App.4th 988, 996
[applying Watson standard to evaluate prejudice when evidence
is improperly admitted as a business record under Evid. Code,
§ 1271]; People v. Venegas (1998) 18 Cal.4th 47, 93 [applying the
Watson standard for evaluating prejudice when evidence is
improperly admitted under Kelly].)
To determine prejudice, we examine the record as though
Magee’s testimony regarding the actions carried out by Yates

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Opinion of the Court by Cantil-Sakauye, C. J.

had not been admitted. But this analysis does not require us to
set aside Magee’s testimony in its entirety. As counsel
acknowledged at oral argument, Magee was qualified to testify
about the procedures she conducted herself, including the
creation of the DNA profiles. (See People v. Capistrano (2014)
59 Cal.4th 830, 872 [holding any error in allowing a testifying
analyst to describe results obtained by a nontestifying analyst
was harmless beyond a reasonable doubt in part because the
testifying analyst “personally” performed the STR test
implicating the defendant].)
Nor does setting aside the portion of Magee’s testimony
related to the DNA extraction fatally undermine the chain of
custody or foundation supporting Magee’s testimony regarding
the DNA profiles. The jury heard testimony from
Dr. O’Halloran that he recovered sperm cells after swabbing and
aspirating Burger’s vaginal canal. The swabs and aspirant were
sent to the county crime lab, and Parigian then sent the vaginal
wash sample to Cellmark. Parigian also testified that he
received the evidence back from Cellmark with a report
indicating that DNA had been extracted from the sample.10
Parigian further testified that in 2000 he again sent Cellmark
the vaginal wash sample along with a blood sample collected
from defendant. Magee related to the jury that she created a
DNA profile from defendant’s blood sample, that she “tested the
extracts from 1996,” and compared the resulting profiles herself.
This narrative sufficiently established that Magee created a
DNA profile based on sperm recovered from Burger’s autopsy,
and supported Magee’s ultimate conclusion that the DNA profile

10
Defendant does not challenge the admission of Parigian’s
testimony describing the Cellmark report.

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from defendant’s blood sample matched the DNA profile from
that sperm.
There is no indication that the chain of custody here was
compromised. The trial court stated it was “not particularly
worried about” any chain of custody related to the DNA
evidence, and defendant does not raise any claim of a chain of
custody error. The evidence connecting the DNA evidence
recovered from Burger’s autopsy to the DNA profile Magee
created “raise[s] no serious questions of tampering.” (See People
v. Caitlin (2001) 26 Cal.4th 81, 134.) In any event, any
presumed defect in the chain of custody would not have rendered
Magee’s testimony entirely inadmissible but would have gone to
the weight of her testimony. (See People v. Lucas (2014)
60 Cal.4th 153, 285 [“the trial court decides the admissibility of
physical evidence based on challenges to the chain of custody,
and, once admitted, any minor defects in the chain of custody go
to its weight”].)
We find that any error in admitting Magee’s testimony
regarding the actions Yates took is harmless beyond a
reasonable doubt. As we discussed above, there was
overwhelming evidence of defendant’s guilt presented during
trial. Magee’s conclusion that defendant’s DNA matched the
DNA from sperm found during Burger’s autopsy provided strong
support for the prosecution’s case. The presence of defendant’s
sperm also corroborated defendant’s asserted motive for killing
Burger (to prevent her from identifying him as her rapist). Even
without being able to point to the DNA extraction process,
Magee’s testimony established for the jury that DNA recovered
from sperm found in Burger’s body matched defendant’s DNA
profile.

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The DNA evidence was buttressed, too, by testimony from
Mooney, Loprieato, and Bice. Mooney provided compelling
testimony describing defendant’s detailed confession, and her
testimony was consistent with the crime scene and the assault
on Burger. Mooney’s testimony was corroborated by Loprieato,
and further supported by testimony from Bice. All of this
evidence taken together establishes beyond a reasonable doubt
that the jury would have reached the same verdict absent
Magee’s testimony describing the DNA extraction process
conducted by Yates.
Defendant maintains that the trial court’s decision to
allow Magee to testify as she did “forced defense counsel to
abandon an entire line of defense and to make concessions
during the guilt phase that would not have been made had he
had the opportunity to attack Yates’s DNA profile.” He asserts
that counsel would not have conceded defendant’s guilt and
would have attacked Mooney’s credibility regarding defendant’s
alleged confession because it was “easily impeached.” He alleges
that Mooney had previously and unsuccessfully tried to
implicate defendant in the death of a different woman, Jennifer
Vernals, and that Mooney’s credibility would have been
seriously undermined had the jury known she made more than
one accusation that defendant had killed a woman. He also
attacks Mooney’s account of defendant’s confession as being
based on her “weird feelings,” and he asserts that the details of
the crime came from the newspaper article Mooney read and not
from any confession from defendant.
We are not persuaded. To the extent that defendant’s
prejudice arguments are premised on the notion that Magee
relied on a DNA profile Yates created, we have already rejected
them. To the extent defendant’s assertions are based on

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Opinion of the Court by Cantil-Sakauye, C. J.

prejudice stemming from the introduction of Yates’s actions by
way of Magee’s testimony, they likewise fail.
Defendant focuses in part on how counsel allegedly would
have revealed serious flaws in Yates’s report if she had testified.
But he provides no support for this assertion and we have found
none in the record. Defendant’s attacks on Mooney’s credibility
are also unpersuasive. Mooney’s suspicion that defendant was
involved in Vernals’s death was raised during the preliminary
hearing. Mooney testified at the preliminary hearing that when
she first told Loprieato about defendant’s plan to escape from
the fire camp because of his concerns about a DNA test,
Loprieato produced a clipping of a newspaper article discussing
Vernals’s death and said, “This is what I think he did.”
Although it’s not clear from the record what was in the
newspaper article, Mooney testified that she (Mooney) was
named in the article (although defendant was not) and that the
article, “kind of said that I might have [implicated defendant]
on that Jennifer Vernals case. And I think [Loprieato] was going
to confront me with him about that.”
Mooney also testified at the preliminary hearing that
during the visit when defendant asked her and Loprieato for
help escaping, she and Loprieato confronted defendant about his
story that he had participated in a burglary and was cut with a
knife. Neither believed the story because “we both thought that
he had committed the Jennifer Vernals murder.” Mooney stated
that during the same visit when Loprieato went to the bathroom
and left Mooney alone with defendant, Mooney asked defendant
whether he killed Vernals. He said he did not. Mooney then
asked defendant if he had killed someone, and he said yes and
went on to tell Mooney about assaulting and killing Burger.

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Bringing this issue to the attention of the jury would not
have undermined Mooney’s credibility, as defendant suggests.
On the contrary, it would likely have been highly prejudicial to
defendant for defense counsel to alert the jury that defendant’s
girlfriend (and perhaps also his mother) believed he had killed
another woman besides Burger. Indeed, defense counsel filed a
motion in limine to exclude any references to Vernals’s death at
trial. The prosecution did not object, and the court granted the
motion and directed the prosecution to instruct the witnesses
not to mention Vernals during trial.
Nor is there any indication in the record that the details
of the crime that Mooney claimed defendant had described came
from Mooney herself or the newspaper article describing
Burger’s death.11 Further, the testimony from Loprieato and
Bice supported Mooney’s credibility, and the jury was able to
make its own determination as to each witness’s credibility
based on his or her testimony and demeanor. In short, we
conclude that any error in the portion of Magee’s testimony
relating the DNA extraction process conducted by Yates was
harmless beyond a reasonable doubt.
IV. PENALTY PHASE ISSUES
A. Defendant’s Correspondence with a White
Supremacist Gang Leader
Defendant raises two related claims concerning penalty
phase rebuttal evidence informing the jury that while awaiting
trial in the present matter defendant exchanged letters with
Justin Merriman, a prison inmate who had once been the leader

11
The newspaper article is not in the record before us.

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of a white supremacist gang.12 First, he asserts that the
rebuttal evidence violated due process as evidence of “guilt by
association,” infringed his constitutional right to freedom of
association, was improper hearsay, and was irrelevant and
unduly prejudicial. Second, defendant argues that the trial
court erred by not granting a mistrial after, contrary to the
court’s earlier ruling limiting the scope of the testimony
regarding the letters, the prosecutor inquired into the contents
of one of the letters. As we explain below, neither claim requires
reversal of the death judgment.
1. Admission of evidence regarding the
correspondence
a. Background
i. Prosecution’s cross-examination of Casas
As part of its penalty phase case in mitigation, the defense
called penology expert Anthony Casas, who expressed the view
that defendant would conduct himself in an obedient and
cooperative manner if sentenced to life in prison without the
possibility of parole. (See ante, pt. I.B.2.iii.) On cross-
examination, the prosecutor elicited from Casas that Casas
would predict a negative adjustment to prison for someone who
had joined a prison gang such as a white supremacist gang.
Casas explained that such gangs are dangerous “because when
you have a situation like that, if the individual is a validated
member of one of those gangs and gets an order to do something,
like kill an officer or kill an inmate, and he doesn’t do it, then
he’s signed his own death warrant because the punishment for

12
We upheld Merriman’s first degree murder conviction on
direct appeal in 2014. (People v. Merriman (2014) 60 Cal.4th 1.)

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failing to carry out a contract with these organizations, the
organized prison gangs, is death usually.”
The prosecutor then showed Casas photographs of
defendant’s tattoos that said “white” and “pride,” and asked
whether this indicated that defendant might join a white
supremacist gang. Casas replied, “Not at all.” The prosecutor
asked whether Casas’s answer would change if he knew
defendant had been corresponding with a former leader of a
Ventura County-based white supremacist gang called the
Skinhead Dogs. Defense counsel promptly objected on the
ground of undue prejudice and lack of foundation, pointing out
at a sidebar conference that there was no evidence defendant
was in a gang. The court sustained the objection for lack of
foundation. But the court allowed the prosecutor to attempt to
lay a foundation by probing Casas’s experience regarding the
topic of prison gang membership.
When questioning resumed, the prosecutor elicited from
Casas that a person who holds white supremacist beliefs might
be likely to join a white supremacist gang. But Casas strongly
disagreed with the prosecutor’s suggestion that a person with
“white pride” tattoos would be more likely to join a white
supremacist gang than a person without such tattoos. Nor did
Casas believe that any correspondence between defendant and
a one-time gang leader in which defendant referred to the gang
leader as “homey” and signed his letter “with respect” meant
that defendant was more likely to join a gang than someone not
engaged in such correspondence. Casas reiterated that an
exchange of letters in which an individual referred to the
recipient white supremacist gang member as “homey” or
“brother” would not be enough to conclude that the letter writer

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was more likely to join a gang. As Casas phrased it, “it could or
it couldn’t.”
ii. Prosecution’s rebuttal
One of the prosecution’s rebuttal witnesses was District
Attorney Investigator Dennis Fitzgerald. Anticipating that the
prosecution would seek to introduce the correspondence
between defendant and Merriman through Fitzgerald’s
testimony, the defense sought an offer of proof outside the jury’s
presence. In relevant part, the prosecutor indicated that
Fitzgerald would testify based on defendant’s booking record
that defendant likely obtained his “white pride” tattoos in
prison. Fitzgerald, who was the investigator in Merriman’s
capital case, would also testify that he had reviewed the two
letters Merriman wrote to defendant and the one letter
defendant wrote back to Merriman. Fitzgerald would testify
that defendant and Merriman addressed each other as “homey”
and “brother” and that defendant asked Merriman to “stay in
touch.” Fitzgerald would also inform the jury that Merriman
was a member of a skinhead gang that advances the doctrine of
white supremacy. After having laid that foundation, the
prosecutor explained, he intended to introduce the letters.
Defense counsel objected to the admission of the three
letters on the grounds that they constituted inadmissible
hearsay, were irrelevant to the argument that defendant was
likely to join a prison gang, were highly prejudicial, and would
violate defendant’s right to a fair trial if introduced. As counsel
pointed out, the letters disparaged counsel and the court system
by, for example, referring to “kangaroo courts” and unfair juries.
Notably, counsel observed, nothing in the letters referred to
gangs.

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The court ruled that the contents of the letters were not
admissible but that the fact of the correspondence was proper
rebuttal to the defense expert’s opinion that defendant would
adapt well to life in prison. The court also indicated it would
allow the prosecutor to elicit from Fitzgerald how defendant and
Merriman addressed each other, how they signed their letters,
and whether Merriman was a gang member. Defense counsel
renewed his objection to this limited line of questioning, but
indicated he understood the court’s ruling.
Fitzgerald then testified in front of the jury that he had
reviewed defendant’s booking records and concluded that he had
received his “white pride” tattoo sometime while in custody after
1996. Fitzgerald also testified that he was the lead investigator
in a criminal case involving Merriman, who was then a leader of
a white supremacist gang in Ventura County called the
Skinhead Dogs. Fitzgerald indicated that he was familiar with
Merriman’s writings and that he had reviewed an exchange of
letters between defendant and Merriman. He testified that in
the letter from defendant to Merriman, defendant twice referred
to Merriman as “homey” and signed off with the phrase “Long
respects, Michael J. Schultz.” In one of the two letters
Merriman wrote to defendant, Merriman referred to defendant
as “brother” and signed it “with respect, Justin James
Merriman.” The salutation in a second letter from Merriman to
defendant referred to defendant as “Big Mike” and later as
“brother” and “homey,” and again ended with the phrase “With
respect.”
Fitzgerald did not state any opinion regarding defendant’s
ability to adjust to life in prison. On cross-examination, defense
counsel elicited from Fitzgerald that he was aware of no

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evidence showing that defendant was ever a member of the
Skinhead Dogs.
iii. Jury instructions and closing argument
The jury was instructed by the trial court that it could not
consider the letters and salutations as factors in aggravation:
“Evidence received in the penalty phase of this trial regarding
Mr. Schultz’s correspondence with another inmate and his
tattoos may not be considered as a factor or factors in
aggravation.”
Toward the end of the prosecution’s closing argument at
the penalty phase, the prosecutor discussed the defense
evidence regarding defendant’s prospects for a positive
adjustment to life in prison. In the prosecutor’s view, evidence
of defendant’s positive behavior while previously in custody was
not a significant mitigating factor even if true. He nonetheless
argued to the jury that Casas’s testimony should not be credited.
In the course of that brief argument, the prosecutor pointed out
that Casas’s opinion was based in part on his belief that
defendant would not join a prison gang. Casas’s opinion was
refuted, the prosecutor argued, by evidence that defendant
received a “white pride” tattoo in prison and that he was in
contact with a member of a white supremacist gang. The
prosecutor clarified that he was not suggesting the evidence of
defendant’s correspondence with Merriman was a factor in
aggravation, or that Merriman endorsed Burger’s rape and
murder. Rather, he asserted, the use of the terms “homey” and
“brother” indicated a possibility that defendant would be
interested in joining the gang, thereby undermining the defense
argument that defendant would adapt well to life in prison.

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b. Discussion
i. Asserted First Amendment violation
Defendant argues that, assuming the rebuttal evidence
established that he shared Merriman’s white supremacist views
and wanted to associate with Merriman and his gang, the
admission of such evidence infringed his First Amendment
rights to freedom of association and belief.
As defendant acknowledges, he did not raise this First
Amendment claim in the trial court, but objected only on
relevance and prejudice grounds. Citing People v. Partida
(2005) 37 Cal.4th, 433–439 and People v. Boyer (2006) 38 Cal.4th
412, 441, defendant asserts that he has not forfeited the claim
notwithstanding the lack of a specific objection because the
arguments he now presents do not invoke facts or legal
standards different from those the trial court was asked to
apply. Neither case is availing because the legal standards
applicable to a claim under Evidence Code section 352 and a
First Amendment claim are different. Under Evidence Code
section 352, a court determines whether evidence (including
evidence of a defendant’s racist beliefs) is relevant and its
probative value is not substantially outweighed by the
probability of prejudice, undue consumption of time, confusing
the issues, or misleading the jury. (See People v. Young (2019)
7 Cal.5th 905, 930–931 (Young).) A First Amendment claim, on
the other hand, asks a court to exclude evidence not only because
it is irrelevant, but because it is irrelevant and therefore its only
possible purpose is to invite the jury to convict the defendant
based on protected speech or associational activity. (See id. at
p. 946.)

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In Young, this court held that a First Amendment claim
nearly identical to the one raised here was forfeited when that
defendant objected during the guilt phase of a capital trial to the
admission of his racist tattoos and beliefs only on relevance and
prejudice grounds. (Young, supra, 7 Cal.5th at pp. 931–932.)
Here, too, the claim is forfeited. Defendant’s general objections
on relevance and prejudice grounds did not preserve the more
specific First Amendment claim he now attempts to raise.
ii. Asserted due process claim
Defendant asserts that the testimony regarding the fact of
the correspondence between himself and Merriman and the
salutations in their letters was improper rebuttal evidence
because it was based on a “guilt by association” theory and thus
violated due process. To the extent this claim amounts to an
assertion that the evidence was irrelevant or unduly prejudicial,
we reject it below. To the extent the claim is related to
defendant’s First Amendment claim or raises a separate “guilt
by association” due process claim, it was not raised in the trial
court and is therefore forfeited. (See Young, supra, 7 Cal.5th at
pp. 931–932; People v. Fuiava (2012) 53 Cal.4th 622, 689.)
iii. Evidence Code section 352
Defendant argues that the evidence regarding his
correspondence with Merriman was more prejudicial than
probative and should have been excluded under Evidence Code
section 352. We examine the trial court’s decision to determine
whether the court “ ‘exercised its discretion in an arbitrary,
capricious or patently absurd manner that resulted in a
miscarriage of justice.’ ” (People v. Rodrigues (1994) 8 Cal.4th
1060, 1124, quoting People v. Jordan (1986) 42 Cal.3d 308, 316.)
We are not persuaded the trial court erred.

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The probative value of the evidence here related to the
defense expert’s opinion that defendant would adjust well to life
in prison. In light of this testimony, the prosecution was entitled
to explore the issue on cross-examination and rebuttal. (See
People v. Gates (1987) 43 Cal.3d 1168, 1211, disapproved on
another ground in People v. Williams (2010) 49 Cal.4th 405,
458–459; see also People v. Mattson (1990) 50 Cal.3d 826, 878
[“Evidence of future dangerousness may be introduced in
rebuttal when the defendant himself has raised the issue of
performance in prison and offered evidence that in a prison
environment he would be law-abiding”]; People v. Coleman
(1989) 48 Cal.3d 112, 150 [same].) In exploring the issue during
cross-examination, the prosecutor could properly ask the
witness whether his opinion would change if he was aware that
defendant was likely to join a white supremacist gang, and to
suggest several grounds from which such a possibility could be
inferred. (See People v. Winbush, supra, 2 Cal.5th at p. 479
[“Having chosen to raise this subject, the defense could not
reasonably insulate it from cross-examination”].) During
rebuttal, the prosecutor was likewise permitted to undermine
the defense expert’s opinion by presenting evidence suggesting
a likelihood of future gang membership. This evidence was
presented through the prosecution investigator’s testimony
regarding defendant’s “white pride” tattoos, the fact of
defendant’s correspondence with an incarcerated white
supremacist gang leader, and the friendly salutations in
defendant’s letter to Merriman.
Contrary to defendant’s assertion, the probative value of
this evidence was not based on an inference of “guilt by
association” or on defendant’s alleged racist views. Rather, the
evidence provided a foundation for questioning the defense

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expert’s opinion that defendant was likely to live out his days as
a peaceful and cooperative prison inmate. For the same reason,
there is no merit to defendant’s assertion that the trial court
should have excluded all evidence regarding the correspondence
because the court knew the letters did not mention gangs or
racist ideology. The trial court concluded the contents of the
letters were not admissible, but the fact of the correspondence
itself and some of the familiar salutations arguably indicated
defendant might join a white supremacist gang. The trial court
provided a limiting instruction to the jury on this point, stating
that evidence “regarding Mr. Schultz’s correspondence with
another inmate and his tattoos may not be considered as a factor
or factors in aggravation.” The prosecution, in closing
argument, similarly pointed out that the letters were not to be
considered as factors in aggravation, but to “refute the
contention that [defendant is] not so bad when he’s in
prison . . . .”
The defense expert disagreed with many of the
prosecutor’s assertions regarding the evidence during cross-
examination. But the fact defendant and a former leader of a
white supremacist gang had exchanged letters in which
defendant referred to the former gang leader as “homey” created
an inference that undermined the expert testimony that
defendant would make a positive adjustment to life in prison.
The trial court did not err in concluding that the probative
value of the evidence was not substantially outweighed by its
potential for prejudice. As defendant acknowledges, the
“prejudice” referred to in Evidence Code section 352 means
“ ‘evidence which uniquely tends to evoke an emotional bias
against the defendant as an individual and which has very little
effect on the issues. In applying section 352, “prejudicial” is not

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synonymous with “damaging” ’ ” (People v. Karis (1988) 46
Cal.3d 612, 638, quoting People v. Yu (1983) 143 Cal.App.3d 358,
377; accord, Bryant, supra, 60 Cal.4th at p. 408.) This court has
observed that gang evidence “may have a highly inflammatory
impact on the jury,” and that trial courts should “carefully
scrutinize such evidence before admitting it.” (People v.
Williams (1997) 16 Cal.4th 153, 193, citing People v. Champion
(1995) 9 Cal.4th 879, 922–923.) The trial court here did
scrutinize the evidence, limiting its admission to the fact of the
correspondence and some of the words used by defendant and
Merriman, excluding a second witness the prosecutor sought to
call, and providing a limiting instruction to the jury that
prohibited the use of the evidence as an aggravating factor. And
the limited evidence offered was not likely to evoke an
inflammatory emotional bias from the jurors. The testimony
was brief and limited in scope. The prosecutor’s argument,
likewise, did not inflame the juror’s emotions; it was limited to
a brief argument that defendant received a “white power” tattoo
while in prison and corresponded with Merriman, which
“refutes the contention that he’s not so bad when he’s in
prison . . . .” We find no error.
iv. Assertedly inadmissible hearsay
The trial court ruled that the contents of the
correspondence between defendant and Merriman were
inadmissible. However, the court did allow the prosecutor to
present evidence regarding the fact of the correspondence and
that defendant and Merriman referred to each other as “homey”
and “brother” and signed their letters using phrases such as
“with respect.” Defendant argues that the court erred in
admitting the salutations in the letters to him from Merriman

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because they constituted inadmissible hearsay that did not fall
within any exception to the hearsay rule.
As an initial matter, we disagree with the Attorney
General that defendant has forfeited his hearsay challenge to
this evidence by not raising it below. Defense counsel objected
to the admission of the letters on various grounds, including that
the letters were inadmissible hearsay. As mentioned above, the
court ruled the contents of the letters were generally
inadmissible with the exception of the salutations used by
defendant and Merriman. Defense counsel indicated to the
court that the defense still objected to the evidence but
understood the court’s ruling. Although the court did not
articulate the basis of its ruling excluding the letters but
permitting evidence of the salutations, we conclude on this
record that the court was aware that counsel’s hearsay objection
extended to the admission of the salutations. Defendant’s claim
is preserved for appeal.
The Attorney General further argues that the salutations
did not constitute inadmissible hearsay because they were not
admitted for their truth and because they fell within the scope
of the state of mind exception to the hearsay rule. (See Evid.
Code, § 1250.)
As noted, the trial court did not articulate the basis of its
ruling excluding the contents of the letters but allowing the
salutations. Even if we assume the salutations in Merriman’s
letters should have been excluded, any such error would not
entitle defendant to a new penalty trial because there is no
reasonable possibility that the admission of the challenged
evidence affected the penalty verdict. (See People v. Wilson
(2008) 43 Cal.4th 1, 28.)

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The purpose of introducing defendant’s correspondence
with Merriman was to rebut the defense expert’s opinion that
defendant would serve out his life in prison as a peaceful and
cooperative inmate. As noted above, the jury was instructed
that this was not to be considered as an aggravating factor. And
this was a minor component of the defense case in mitigation
and played an even smaller role in the prosecutor’s closing
argument. The focus of the prosecution’s argument was instead
on the callous and brutal nature of the capital crime, the
strength of the evidence of guilt, and defendant’s pattern of
violence both before and after the murder. By contrast, the
prosecutor’s references to evidence of defendant’s exchange of
correspondence with Merriman comprised only three
paragraphs in a closing argument transcript spanning 48 pages.
Any assumed hearsay violation at issue amounted to a further
subset of that minor component, and the salutations added
relatively little to the properly admitted fact of the
correspondence generally. Further, defendant does not
challenge the admission of the salutations in his letters to
Merriman, which were nearly identical to the salutations in
Merriman’s letters. On this record, there is no reasonable
possibility the admission of the salutations in the letters from
Merriman to defendant affected the jury’s penalty verdict.
2. Denial of motion for mistrial
In a related claim, defendant asserts that the trial court
erred in denying defense counsel’s motion for a mistrial during
the penalty phase. The prosecutor posed a leading question to,
and elicited an answer from, rebuttal witness Fitzgerald that
revealed the contents of Merriman’s letter to defendant, in
direct violation of the court’s recent ruling. The prosecutor’s
question constituted misconduct. Nonetheless, we conclude that

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the court did not abuse its discretion in denying the mistrial
motion.
a. Background
As observed above, immediately prior to the testimony of
prosecution rebuttal witness Fitzgerald the trial court ruled
inadmissible the contents of the exchange of letters between
defendant and Merriman except for their salutations. Despite
that ruling, which the prosecutor acknowledged he understood,
the prosecutor asked Fitzgerald whether Merriman “offer[ed] to
send [defendant] a manual from San Quentin?” Fitzgerald
responded, “Yes, he [did].” The court promptly sustained
defense counsel’s objection, ordered the answer stricken, and
admonished the jury to disregard it, telling the prosecutor,
“I ruled from the bench on that issue . . . .”
At a bench conference immediately after the conclusion of
Fitzgerald’s testimony, defense counsel moved for a mistrial
based on the prosecutor’s question regarding the San Quentin
manual, arguing that the inquiry was a violation of the court’s
order and highly prejudicial to defendant. Before ruling on the
motion, the court excused the jury for the day. In giving its
usual admonishments, the court added, “I want to admonish you
again the objection made to a question asked by the district
attorney in reference to an item allegedly contained in a letter
from a Mr. Merriman to defendant — objection made to it.
I sustained the objection. The answer was stricken. [¶] I want
to admonish you again you’re not to consider anything that you
heard in that answer for any purpose whatsoever in this case.”
The court heard from the parties on the motion. The
prosecutor apologized for eliciting testimony in violation of the
court’s earlier ruling but asserted that no prejudice resulted.

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The court responded, “I sure don’t like it, and I can understand
[defense counsel’s] concern completely.” The court nonetheless
denied defendant’s motion for mistrial, concluding that the
misconduct would not have inflamed the jurors against
defendant. The court explained, “it does seem to the Court the
jury’s already aware that at a minimum the defendant’s going
to spend the rest of his life in prison . . . . [¶] I think the reality
[is] that the jurors are not foolish, stupid idiots but do indeed
follow the law as the Court instructs and will do so in this
case.”13
Later, when instructing the jurors before their penalty
phase deliberations, the court read CALJIC No. 1.02, which, as
given, reminded the jurors not to consider “for any purpose . . .
any evidence that was stricken by the court” but to “treat it as
though you had never heard it.”
b. Discussion
We agree with defendant that the prosecutor committed
misconduct by eliciting testimony regarding the contents of one
of the letters Merriman wrote to defendant. (See People v. Tully
(2012) 54 Cal.4th 952, 1035.) The trial court had ruled clearly
that the contents of the letters were inadmissible. The
prosecutor nonetheless directly asked Fitzgerald a question
regarding the contents of one letter. Although the prosecutor
apologized for asking the question, he offered no excuse or
explanation for his conduct. This was clear misconduct, not a
situation in which a question led to “a witness’s nonresponsive

13
The prosecutor stated during this colloquy that he
believed the manual referred to in the letter was a document
published by prison officials “about what it’s like [in San
Quentin State Prison].”

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answer that the prosecutor neither solicited nor could have
anticipated.” (Ibid.) We take this opportunity to admonish
counsel regarding the importance of strictly adhering to a
court’s rulings concerning the scope of proper examination.
Such adherence is important in every case. It certainly is no less
vital in the context of a capital case.
Still, the prosecutor’s error did not require the court to
declare a mistrial. “ ‘Whether a particular incident is incurably
prejudicial is by its nature a speculative matter, and the trial
court is vested with considerable discretion in ruling on mistrial
motions.’ ” (People v. Williams (2006) 40 Cal.4th 287, 323,
quoting People v. Haskett (1982) 30 Cal.3d 841, 854.) As we have
explained, “[a] trial court should grant a mistrial only when a
party’s chances of receiving a fair trial have been irreparably
damaged . . . .” (People v. Bolden (2002) 29 Cal.4th 515, 555,
citing People v. Ayala (2000) 23 Cal.4th 225, 282; see People v.
Jenkins (2000) 22 Cal.4th 900, 986 [court should grant a mistrial
if it determines the prejudice “incurable by admonition or
instruction”].)
Reviewing the court’s denial of the mistrial motion for an
abuse of discretion (People v. Valdez (2004) 32 Cal.4th 73, 128,
citing People v. Ayala, supra, 23 Cal.4th at p. 283), we conclude
the court did not err. We presume that a jury follows the court’s
admonishments. (People v. Avila (2006) 38 Cal.4th 491, 574,
citing People v. Boyette (2002) 29 Cal.4th 381, 436.) Here, after
scolding the prosecutor in open court for violating its earlier
ruling, the court promptly and forcefully directed the jury to
disregard the improper question and response. The court did so
repeatedly, both at the time the court sustained the defense
objection and again, a short time later, when the court excused
the jury for the day. The jury was also instructed in more

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general terms prior to penalty phase deliberations that it was
not to consider for any purpose evidence stricken by the court.
The court acknowledged defense counsel’s concerns that
the improper question and response could lead the jury to
speculate regarding the contents of the San Quentin “manual”
in ways that could prejudice defendant. But the court also
reasonably concluded its admonishments would ensure that the
brief reference to an undescribed “manual” did not irreparably
damage defendant’s chance of receiving a fair penalty trial.
Citing empirical research suggesting generic instructions
are of limited value in curing prejudice, defendant asserts that
the three “anemic” admonitions did not effectively dispel the
prejudice. But nothing in the record provides any reason to
question the court’s belief that the prejudice resulting from the
improper evidence was cured by the court’s prompt and explicit
directives that the jury disregard it. Nor does the record disclose
any reason for this court to cast aside the presumption that the
jurors followed the court’s repeated admonishments. We
conclude the trial court did not abuse its discretion in denying
the motion for a mistrial.
B. Victim Impact Testimony
The prosecution called to the witness stand three
members of Cynthia Burger’s immediate family to testify
regarding how they were impacted by her death. Defendant
contends the testimony by two of the witnesses fell outside the
scope of constitutionally permissible victim impact evidence. He
further complains that the testimony was emotionally
overwrought and thereby diverted the jury from its proper role
at the penalty phase. As we explain, the admission of the
challenged testimony was proper.

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1. Background
Prior to trial, defense counsel filed a motion to limit any
victim impact testimony proffered by the prosecution. After a
brief hearing on the motion, the court rejected the defense
argument that such evidence should be limited to testimony by
only those family members who were actually present at the
crime scene. But the court agreed to limit the evidence to
testimony from three immediate family members — Burger’s
father (Had Burger), mother (Virgie Burger), and sister (Sandra
Woodward).
Mr. Burger testified briefly regarding how much his
daughter had meant to him, his deep sense of shock and grief
upon learning she had died, and the enduring feeling of
emptiness that could not be filled after her death.
Mrs. Burger testified next. In explaining what her
daughter meant to her, Mrs. Burger described the
circumstances surrounding Burger’s birth, including that Mr.
Burger drove 500 miles to the hospital and was there to hold
their newborn child. Mrs. Burger explained how that event
created a special bond between Burger and Mr. Burger because
he could not attend the birth of their first child, which occurred
during World War II when he was stationed at Guadalcanal.
She also mentioned that she was very ill following the birth and
that family members supported her.
Mrs. Burger mentioned her daughter’s dedication to
Jesus, saying, “Jesus Christ was her hero.” She talked about
Burger’s desire to be the best person she could be, and about her
graduation from Calvary Bible College. When asked to recount
how she learned her daughter had died, Mrs. Burger described
the news as “a horrendous story by a monster” and called the

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killing a “weird, horrible story.” According to Mrs. Burger, her
heart broke that day and has never healed. She also expressed
how much she missed Burger, who she described as a “wonderful
daughter, beautiful daughter, kind, considerate.” When
relating some of the hardest things for her after Burger’s death,
Mrs. Burger discussed having to walk through her daughter’s
home, including the bedroom where she had been strangled.
She also mentioned the loss of the family Bible in the fire. Mrs.
Burger found some solace in having a close and loving family.
After bringing Burger’s cats to live with her and her husband,
Mrs. Burger would “feel the [cats’] fur and I knew that I was
feeling Cindy’s hands stroking that little kitty.” After Burger’s
death, Mrs. Burger explained that she suffered poor health and
depression, and that she lived in fear at night when her husband
was not home.
Burger’s older sister, Sandra Woodward, explained that
she and Burger had “something magic” between them, even
when Burger was an infant. When she learned Burger was
dead, she was shocked and suffered intense, unrelenting pain.
Woodward said she knew everything about Burger and had
taken for granted that she and her sister would grow old
together. She recounted how difficult it was to answer police
investigators’ questions about Burger’s friends and
acquaintances, and to inventory Burger’s house to identify what
was missing. According to Woodward, it was hard to control her
suspicions about Burger’s friends during the long investigation.
In describing her experience at the mortuary, Woodward
recalled that her sister’s hair and features were unrecognizable
and that she struggled with how to tell her parents. She related
that her father did not want to see Burger’s body because he
“wanted to remember how Cindy was last week.” When

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Woodward returned to the mortuary with Mrs. Burger,
Woodward could see the grief washing over Mrs. Burger as she
(Mrs. Burger) rocked Burger in her arms.
Woodward testified that she had trouble sleeping after
Burger’s death, and that she would often wake around 3:00 a.m.
She said that when she later was told that defendant entered
Burger’s home “between 2:30 or 3:00, I just had a stab to my
heart. It all made sense to me. I knew why I was waking up at
3 o’clock. There was no doubt in my mind.”
Woodward also told the jury that although she finds joy in
her memories of her sister, she is saddened knowing they will
no longer have special times together. Woodward explained that
her sister’s death traumatized the family, each of whom dealt
with his or her grief differently. Specifically, her father became
angry and hard, while her mother cried all the time because she
“worried about the pain and the torture that Cindy went
through and she kept reliving it.” Woodward also described her
own physical pain, including difficulty breathing. She stated
that when another individual told her she was experiencing
heartache, she said, “I didn’t realize there was such physical
pain with death.”
2. Discussion
Defendant raises three challenges to the victim impact
testimony. First, he argues that the testimony by Mrs. Burger
and Ms. Woodward exceeded the limitations the high court
placed on victim impact evidence in Payne v. Tennessee (1991)
501 U.S. 808 (Payne). Payne departed from earlier precedent to
hold that the Eighth Amendment does not bar states from
allowing at a capital sentencing proceeding evidence regarding
the loss to the victim’s family that resulted from the murder, so

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long as the evidence is not “so unduly prejudicial” that it leads
to a “fundamentally unfair” trial. (Payne, supra, 501 U.S. at
p. 825; see also People v. Edwards (1991) 54 Cal.3d 787, 835
[holding that § 190.3, factor (a) authorized “evidence and
argument on the specific harm caused by the defendant,
including the impact on the family of the victim”].) Payne did
not disturb the high court’s earlier holding in Booth v. Maryland
(1987) 482 U.S. 496, however, that “admission of a victim’s
family members’ characterizations and opinions about the
crime, the defendant, and the appropriate sentence violates the
Eighth Amendment.” (Payne, supra, 501 U.S. at p. 830, fn. 2;
see also People v. Taylor (2010) 48 Cal.4th 574, 647–648.)
Defendant argues that the testimony by Burger’s mother
and sister exceeded the permissible scope of victim impact
evidence under Payne. He asserts that Burger’s mother and
sister offered improper opinions regarding the crime and
defendant. Specifically, defendant points to Mrs. Burger’s
characterization of the facts of Burger’s death as “a horrendous
story by a monster” and a “weird, horrible story.” He
emphasizes Mrs. Burger’s testimony that “[t]his girl was so
beautiful both inside and out and was murdered with great pain,
fear, and then set [on] fire, and then put in a tub of acid.”
Defendant also complains that Woodward’s testimony regarding
the police investigation invited the jury to speculate that
numerous individuals beyond the immediate family had been
adversely impacted by Burger’s death. Defendant further
asserts that the testimony from Burger’s mother and sister ran
afoul of Payne because it was distracting, emotional, and
irrelevant. He points to testimony from both women regarding
the circumstances of Burger’s birth, Burger’s religious
convictions, and the “psychic connections” described by the

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witnesses (Mrs. Burger’s testimony that she would pet Burger’s
cats and know “that I was feeling Cindy’s hands stroking that
little kitty,” and Woodward’s testimony that she would often
wake up at 3:00 a.m., around the time Burger was killed).
As an initial matter, defendant failed to object to these
statements during trial. Defendant moved before trial to limit
any victim impact testimony to those family members present
during or immediately after the crime, and to exclude any
prejudicially emotional victim impact testimony. The trial court
granted the motion to the extent that defendant sought to limit
testimony to impacted family members but stated those
witnesses need not have been present during the crime. Rather,
the court ruled that testimony from Burger’s mother, father, and
sister would be admissible to describe the impact of Burger’s
death on them. Defendant did not subsequently object that the
witnesses’ testimony exceeded the scope of the trial court’s order
or was otherwise improper. As the Attorney General asserts,
and defendant does not contest, defendant’s claims are therefore
forfeited. (People v. Romero and Self (2015) 62 Cal.4th 1, 46
[“denial of the motion in limine [to exclude all victim impact
testimony] did not make objection during testimony redundant,
but rather it was incumbent on defendants to object if they
believed the testimony actually presented was ‘excessive,
improper, inflammatory, and highly prejudicial’ ”].)
Even considering defendant’s claims on the merits,
however, the challenged statements did not run afoul of the
Eighth Amendment. Neither Mrs. Burger nor Ms. Woodward
improperly commented on the crime or defendant. When placed
in context, Mrs. Burger’s references to the horrendous nature of
the crimes against her daughter, and the suffering that she
imagined her daughter must have endured, reflected how those

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crimes had directly affected her (Mrs. Burger). (See People v.
Mendez (2019) 7 Cal.5th 680, 713 [permitting testimony of
family members describing how they imagined their loved ones’
final moments, and describing as “obvious” that a parent would
describe a child’s murder as a “ ‘tragic, sickening, evil,
disgusting death’ ”]; People v. Pollock (2004) 32 Cal.4th 1153,
1182 [rejecting the defendant’s challenge to testimony by the
victims’ son describing his parents’ murders as brutal and “ ‘a
savage act’ ”].) Likewise, Mrs. Burger’s characterization of her
daughter’s killer as a “monster” was a permissible expression of
the harm caused by the crimes. (See People v. Taylor, supra,
48 Cal.4th at p. 647 [one family member’s fleeting reference to
the defendant as “ ‘that idiot’ ” reflected how the murder had
devastated her and the victim’s large family and close friends].)
Mrs. Burger’s testimony was properly admitted to remind the
jury that Burger was “ ‘an individual whose death represents a
unique loss to society and in particular to [her] family.’ ” (Payne,
supra, 501 U.S. at p. 825, quoting Booth v. Maryland, supra,
482 U.S. at p. 517 (dis. opn. of White, J.).)
Further, defendant does not explain how Woodward’s
testimony regarding the investigation improperly broadened the
scope of testimony regarding those impacted by Burger’s death.
At most, her testimony stated what was obvious; Burger’s death
generally impacted those who knew her. Woodward’s general
testimony that officers investigating the crime questioned those
close to Burger was not so emotional as to invite an irrational
response from the jury. (See People v. Winbush, supra, 2 Cal.5th
at p. 465 [rejecting similar claim when victim’s sister and
mother described impact of murder on victim’s father, who was
“ ‘totally devastated’ ” and died six months after the murder].)

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Nor can the testimony here be characterized as irrelevant,
distracting, or unduly emotional. Contrary to defendant’s
assertion, Mrs. Burger could properly describe some of the
circumstances surrounding Burger’s birth because, by showing
the supportive and loving family environment in which Burger
was raised, the testimony provided the jury a glimpse of who
Burger was. (See People v. Dykes (2009) 46 Cal.4th 731, 786
[victim impact evidence offers the jury “an idea of who the victim
was”].) As we have repeated, “ ‘[t]he People are entitled to
present a “ ‘complete life histor[y] [of the murder victim] from
early childhood to death.’ ” ’ ” (People v. Williams (2015)
61 Cal.4th 1244, 1286, quoting People v. Garcia (2011)
52 Cal.4th 706, 751; accord, People v. Zamudio (2008) 43 Cal.4th
327, 365.)
For a similar reason, Mrs. Burger’s references to her
daughter’s trust in Jesus and graduation from a Christian
college were not improper. We denied a similar challenge to
testimony regarding a murder victim’s participation in Bible
study classes in People v. Pollock, supra, 32 Cal.4th at page
1181. Although we noted that the testimony there did not
include mention of the victim’s “specific religious beliefs” (ibid.),
the testimony here was brief and limited to a general description
of Burger as a devout Christian. And, like in Pollock, nothing
in the record supports defendant’s assertion that this testimony
would have suggested to the jury that its penalty decision should
be guided by religious doctrine, let alone his claim that these
references “cast a mantle of saintliness about [Burger] and
invited the jury to recall the Old Testament call to take
vengeance for the righteous.”
Further, we find untenable defendant’s contention that
the testimony by Mrs. Burger and Woodward relating their

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thoughts about Burger subsequent to her death (which
defendant characterizes as “psychic connections”) would have
invited jurors to believe Burger’s spirit would be watching over
their deliberations. We have previously rejected similar
challenges to “ ‘supernaturally tinged’ ” evidence such as a
murder victim’s mother describing a nightmare about being shot
just before learning her son had been shot (People v. Mendez,
supra, 7 Cal.5th at p. 713) and a witness describing that the
victim’s goddaughter reported seeing the victim’s ghost after the
victim was killed (People v. Verdugo (2010) 50 Cal.4th 263, 297–
299).
Defendant also urges us to revisit our holding in People v.
Edwards, supra, 54 Cal.3d 787, that section 190.3, factor (a)
allows victim impact evidence, and those decisions declining to
limit such evidence to the facts and circumstances that the
defendant knew or reasonably should have known at the time of
the crime. He cites to language in Justice Kennard’s concurring
and dissenting opinion in People v. Fierro (1991) 1 Cal.4th 173,
264. We have declined to adopt that language, and defendant
provides no persuasive reason to reopen our consideration of
these issues. (See, e.g., People v. Simon (2016) 1 Cal.5th 98,
140–141; People v. Jones (2012) 54 Cal.4th 1, 70; People v. Myles
(2012) 53 Cal.4th 1181, 1219; People v. McKinnon, supra,
52 Cal.4th at p. 690.)
Finally, defendant asserts that the victim impact
testimony was far more prejudicial than probative and that the
court should not have allowed the jury to consider it when
deciding the appropriate punishment. Again, the claim is
forfeited because defendant failed to object. And, again,
defendant’s claim fails on its merits. Testimony regarding grief
and loss is necessarily emotional, but that does not necessarily

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render it inadmissible. Here, the testimony of Burger’s father,
mother, and sister, which included their descriptions of the
shock and grief they experienced on learning of Burger’s death,
was the type of evidence typically permitted at the penalty
phase and “concerned the kinds of loss that loved ones commonly
express in capital cases.” (See People v. Lewis and Oliver, supra,
39 Cal.4th at p. 1057; see also People v. Myles, supra, 53 Cal.4th
at p. 1197 [victim’s father related to the jury that when he was
informed of his son’s death, he fell to his knees and dropped the
telephone in disbelief].) Nor was it error to allow Mrs. Burger’s
testimony describing the emotion she felt listening to trial
testimony or testifying herself. Testimony describing the
“ ‘residual and lasting impact’ ” of a murder on the victim’s
family is permissible. (People v. McKinnon, supra, 52 Cal.4th at
p. 691, quoting People v. Brown (2004) 33 Cal.4th 382, 398.)
Characterizing the victim impact testimony as
“duplicative and excessive,” defendant faults the court for not
attempting to lessen the prejudicial effect by, for example,
allowing only one of the three members of Burger’s immediate
family to testify. The record shows that the victim impact
testimony in this case was neither duplicative nor excessive.
Indeed, the testimony represented only 20 pages in a reporter’s
transcript of the prosecution’s case in aggravation that spanned
several hundred pages. (See, e.g., People v. Mendez, supra,
7 Cal.5th at p. 712 [stating that allowing three victim impact
witnesses per murder victim is comparable to what this court
has previously condoned]; People v. Williams, supra, 61 Cal.4th
at p. 1285 [rejecting challenge to amount of victim impact
testimony involving ten witnesses].) We discern no error in the
trial court’s decision to allow the testimony here.

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Nor did the testimony unduly prejudice defendant by
painting a contrasting picture for the jury, effectively asking the
jury to compare Burger’s life with defendant’s and to “base its
punishment decision on which life was more valuable to society.”
Nothing in the record supports this assertion, and we have
previously rejected similar unsupported claims. (See People v.
Winbush, supra, 2 Cal.5th at p. 465; People v. Kelly (2007)
42 Cal.4th 763, 799.)
C. Unadjudicated Criminal Activity
Defendant contends that section 190.3, factor (b), which
permits evidence 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 of violence,” violates the
Eighth Amendment to the federal Constitution.
The purpose of section 190.3, factor (b) is to “enable the jury
to make an individualized assessment of the character and
history of a defendant to determine the nature of the
punishment to be imposed.” (People v. Grant (1988) 45 Cal.3d
829, 851.) This court has long held that the admission of
evidence of unadjudicated crimes at the penalty phase is not a
violation of state or federal constitutional principles. (See, e.g.,
People v Jenkins, supra, 22 Cal.4th at p. 1054; People v.
Balderas (1985) 41 Cal.3d 144, 204–205.)
Defendant mischaracterizes section 190.3, factor (b) as
allowing evidence of irrelevant everyday “spats and quarrels.”
In fact, the statute allows the use of criminal activity related to
force or violence, or what we have described as “prior violent
conduct.” (People v. Davis (1995) 10 Cal.4th 463, 544.) The jury
is instructed that it may consider evidence of such prior conduct
only when the conduct has been proved beyond a reasonable

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doubt. (People v. Robertson (1982) 33 Cal.3d 21, 53.) As we have
explained, “[t]he penalty phase is unique, intended to place
before the sentencer all evidence properly bearing on its decision
under the Constitution and statutes. Prior violent criminality
is obviously relevant in this regard; the reasonable doubt
standard ensures reliability; and the evidence is thus not
improperly prejudicial or unfair.” (People v. Balderas, supra,
41 Cal.3d at p. 205, fn. 32.) Defendant was entitled to argue to
the jury that the incidents were mere minor spats and should be
given little weight. (See People v. Tully, supra, 54 Cal.4th at
p. 1030 [“Whether defendant’s use of force was legally justified
and the weight, if any, to be given to these incidents for purposes
of the individualized assessment of his character and history
were matters for the jury to decide in light of the instructions
given to it”].)
Defendant further asserts that the admission of
unadjudicated acts through anecdotal evidence violates the
Eighth Amendment’s requirement of heightened reliability in
capital cases because, as a general matter, only the victim’s
recollection is presented to the jury. We have repeatedly
rejected claims that the admission of section 190.3, factor (b)
evidence violates a defendant’s right to a reliable penalty
determination. (See, e.g., People v. Anderson (2001) 25 Cal.4th
543, 584–585.) Defendant’s complaint that only the victim’s
version of events is the one heard by the jury is remedied by his
Sixth Amendment right to confront the witnesses who testify
against him at the penalty phase. (See People v. Rogers (2006)
39 Cal.4th 826, 894.)
Defendant also asserts that the admission of evidence
under section 190.3, factor (b) violates the Eighth Amendment
because it is out of step with evolving standards of decency. We

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have not previously considered this particular challenge to
section 190.3, factor (b). We reject it now.
Defendant asserts that section 190.3, factor (b) is “the only
statute in the country to include a statutory aggravator that
allows a jury to impose the death penalty based upon
unadjudicated everyday spats and quarrels.” He acknowledges,
however, that other states allow consideration of unadjudicated
acts as a nonstatutory aggravating factor.
Indeed, at least seven other states allow the admission of
unadjudicated acts in a similar fashion as California. (See, e.g.,
Devier v. State (Ga. 1984) 323 S.E.2d 150, 163 [allowing as an
aggravating factor “[a]ny lawful evidence,” including prior
unadjudicated acts, that tend to show a defendant’s “general
moral character” or “predisposition to commit other crimes”];
State v. Johns (Mo. 2000) 34 S.W.3d 93, 113 [allowing
consideration of evidence of defendant’s “character and
conduct,” including unadjudicated criminal conduct that
occurred before or after the capital offense]; Paxton v. State
(Okla. 1993) 867 P.2d 1309, 1321–1323 [allowing unadjudicated
offenses to support aggravating circumstance of continuing
threat to society]; State v. Tucker (Or. 1993) 845 P.2d 904, 913
[allowing evidence of unadjudicated “bad acts” as an
aggravating factor related to defendant’s future dangerousness];
Powell v. State (Tex. 1994) 898 S.W.2d 821, 830 [allowing
unadjudicated “extraneous offenses” to show defendant poses a
future danger to society]; State v. Taylor (Utah 1991) 818 P.2d
1030, 1035 [allowing violent and nonviolent unadjudicated
crimes as an aggravating factor relevant to defendant’s
character]; Stockton v. Commonwealth (Va. 1991) 402 S.E.2d
196, 209–210 [construing applicable statute as allowing
evidence of unadjudicated misconduct, rejecting due process

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challenge to that practice, and noting split between states
allowing or prohibiting admission of such evidence].)
That California is among eight states allowing
consideration at the penalty phase of prior unadjudicated
criminal activity involving force or violence is not sufficient to
establish that California’s statutory scheme is out of step with
evolving standards of decency or otherwise violates the Eighth
Amendment. (See People v. Taylor, supra, 48 Cal.4th at p. 634;
cf. Miller v. Alabama (2012) 567 U.S. 460, 469–470, 479 [holding
that mandatory imposition of life without parole sentences for
juvenile offenders violated 8th Amend. evolving standards of
decency].)
D. Constitutionality of California’s Death Penalty
Law
Defendant presents several challenges to the
constitutionality of California’s death penalty law that, he
acknowledges, this court has previously considered and rejected.
We decline his request to reconsider our prior conclusions.
(People v. Schmeck (2005) 37 Cal.4th 240, 303.)
Section 190.2 provides a list of the special circumstances,
including felony murder, which render a defendant eligible for
the death penalty. These factors are not so numerous and
broadly interpreted that they fail to narrow the class of death-
eligible first degree murders as required by the Eighth and
Fourteenth Amendments. (People v. Brooks (2017) 3 Cal.5th 1,
114–115 (Brooks); People v. Johnson (2016) 62 Cal.4th 600, 654–
655 (Johnson).)
Section 190.3, factor (a), directs the jury to consider as
evidence in aggravation the circumstances of the capital crime.
This has not resulted in the wanton imposition of the death

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penalty in violation of the Fifth, Sixth, Eighth, and Fourteenth
Amendments by permitting prosecutors to argue that the
various features of the murder, even features that are the
converse of those in other cases, are aggravating factors.
(Johnson, supra, 62 Cal.4th at p. 655; People v. Brown, supra,
33 Cal.4th at p. 401.)
Defendant raises various challenges to the procedural
aspects of a penalty phase trial. This court has repeatedly
rejected those challenges. The federal Constitution does not
require “either unanimity as to the truth of aggravating
circumstances or findings beyond a reasonable doubt that an
aggravating circumstance (other than Penal Code section 190.3,
factor (b) or (c) evidence) has been proved, that the aggravating
factors outweighed the mitigating factors, or that death is the
appropriate sentence.” (People v. Rangel (2016) 62 Cal.4th 1192,
1235, citing People v. Whalen (2013) 56 Cal.4th 1, 90, People v.
Dykes, supra, 46 Cal.4th at p. 814, People v. Avila, supra,
38 Cal.4th at p. 724; see also Johnson, supra, 62 Cal.4th at
pp. 655–656; People v. Linton (2013) 56 Cal.4th 1146, 1215–
1216.) Neither the federal Constitution nor state law requires
the jury be instructed that the prosecution bears some burden
of proof as to the truth of the aggravating factors (other than
factor (b) or (c) evidence) or the appropriateness of a death
verdict. Nor is the court required to explicitly tell the jury that
neither party bears the burden of proof. (Linton, supra,
56 Cal.4th at p. 1215.) The high court’s decisions interpreting
the Sixth Amendment in Apprendi v. New Jersey (2000) 530 U.S.
466 and its progeny do not compel a different conclusion. (People
v. Merriman, supra, 60 Cal.4th at p. 106.)
There is no federal constitutional requirement, either under
the Fifth, Sixth, Eighth, or Fourteenth Amendments, that the

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jury make unanimous findings regarding the aggravating
factors or the truth of the unadjudicated criminal activity
admitted under section 190.3, factor (b). (People v. Clark (2011)
52 Cal.4th 856, 1007; People v. Balderas, supra, 41 Cal.3d at
pp. 204–205.)
The standard instructions governing the jury’s deliberative
process at the penalty phase are not constitutionally infirm.
Informing the jury that a death verdict is “ ‘warranted’ ” if the
aggravating factors are “ ‘so substantial’ ” in comparison with
the mitigating factors is not impermissibly broad or vague.
(People v. Arias (1996) 13 Cal.4th 92, 171; People v. Breaux
(1991) 1 Cal.4th 281, 315–316.) The jury need not be instructed
that it must return a verdict of life without the possibility of
parole if it finds the mitigating circumstances outweigh the
aggravating circumstances. (People v. Duncan (1991) 53 Cal.3d
955, 978.) There is no requirement that the jurors be instructed
that a defendant bears no burden of proving the facts in
mitigation, or that mitigating circumstances did not have to be
found unanimously. (People v. Brasure, supra, 42 Cal.4th at
pp. 1068–1069.) And the death penalty law does not require the
jury be instructed that there is a presumption that life without
possibility of parole is the appropriate sentence. (Arias, supra,
13 Cal.4th at p. 190.)
The penalty phase jury is not required to make written
findings regarding its penalty choice, and the absence of such
written findings does not preclude meaningful appellate review.
(People v. McKinzie (2012) 54 Cal.4th 1302, 1364, abrogated on
other grounds in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3;
People v. Fauber (1992) 2 Cal.4th 792, 859.)

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The court’s instructions regarding the various aggravating
and mitigating factors did not act as a barrier to the jury’s
consideration of defendant’s mitigating evidence or infringe
defendant’s constitutional rights. An instruction reflecting
section 190.3’s use of adjectives such as “extreme” and
“substantial” in factors (d) and (g) does not interfere with a
defendant’s right to present mitigating evidence. (Brooks,
supra, 3 Cal.5th at p. 115; People v. Adcox (1988) 47 Cal.3d 207,
270.) Nor must a court delete from the instructions any
inapplicable mitigating factors, or identify which factors are
aggravating and which are mitigating. (People v. Cook (2006)
39 Cal.4th 566, 618.) Directing the jury to consider “ ‘whether
or not’ ” certain mitigating factors were present does not invite
the jury to use the absence of such factors as a factor in
aggravation. (Johnson, supra, 62 Cal.4th at p. 656.)
The failure of California’s death penalty procedures to
provide for intercase proportionality review does not violate the
federal Constitution or principles of equal protection or due
process. (Brooks, supra, 3 Cal.5th at p. 115; People v. Verdugo,
supra, 50 Cal.4th at p. 305.)
The failure to afford capital defendants at the penalty
phase the same procedural safeguards provided to noncapital
defendants does not violate the equal protection clause pf the
federal Constitution. (People v. Whalen (2013) 56 Cal.4th 1, 91,
disapproved on another ground in People v. Romero and Self,
supra, 62 Cal.4th at p. 44, fn. 17.)
California does not regularly use the death penalty as a
form of punishment, and “its imposition does not violate
international norms of decency or the Eighth Amendment’s

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prohibition against cruel and unusual punishment.” (People v.
Clark, supra, 52 Cal.4th at p. 1008.)
Defendant acknowledges that this court has previously
rejected each of the challenges to California’s death penalty
scheme that he presents here. He asserts, however, that our
analysis of these issues is constitutionally defective because we
have failed to consider their cumulative impact or to address the
capital sentencing scheme as a whole. This court has considered
and rejected identical arguments before, and we do so again
here. (See, e.g., People v. Amezcua and Flores (2019) 6 Cal. 5th
886, 928; Johnson, supra, 62 Cal.4th at pp. 657–658.)
V. CUMULATIVE EFFECT OF ASSERTED ERRORS
Defendant argues that the asserted errors that occurred
during the guilt and penalty phases, when considered
cumulatively, deprived him of a fair trial. We have assumed for
purposes of argument that the recording of Burger’s last
telephone call and Magee’s testimony regarding the DNA
extraction conducted by Yates should not have been admitted,
but concluded that any error was harmless. (See ante, pts. III.A,
& III.B.) We have also assumed that the salutations in
correspondence from Merriman to defendant were inadmissible
hearsay, but likewise concluded that defendant was not
prejudiced by any error in the admission. (See ante,
pt. IV.A.1.b.iii.) And we have concluded that the prosecution
committed misconduct by eliciting statements from a rebuttal
witness during the penalty phase regarding the contents of one
of those letters, but that the trial court did not abuse its
discretion in denying the defendant’s related motion for a
mistrial. (See ante, pt. IV.A.2.) Considering these together, we

88
 PEOPLE v. SCHULTZ
Opinion of the Court by Cantil-Sakauye, C. J.

likewise conclude the cumulative effect of the asserted errors
was harmless.
VI. CONCLUSION
We affirm the judgment in its entirety.

CANTIL-SAKAUYE, C. J.

We Concur:
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.
GOETHALS, J.*

________________________
*
Associate Justice of the Court of Appeal, Fourth Appellate District,
Division Three, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.

89
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Schultz
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S114671
Date Filed: November 23, 2020
__________________________________________________________________________________

Court: Superior
County: Ventura
Judge: Donald D. Coleman

__________________________________________________________________________________

Counsel:

Jeralyn Keller, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Jaime L. Fuster, Joseph P. Lee and Ryan M.
Smith, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Jeralyn Keller
790 East Colorado Blvd., Suite 900
Pasadena, CA 91101-2113
(626) 683-1233

Ryan M. Smith
Deputy Attorney General
300 South Spring St., Suite 1702
Los Angeles, CA 90013
(213) 269-6108