People v. Ramirez

IN THE SUPREME COURT OF
CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
v.
IRVING ALEXANDER RAMIREZ,
Defendant and Appellant.

S155160

Alameda County Superior Court
151080

January 28, 2021

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

________________________
*
Associate Justice of the Court of Appeal, Fourth Appellate
District, Division One, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
 PEOPLE v. RAMIREZ
S155160

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

A jury convicted defendant Irving Alexander Ramirez of
the first degree murder of San Leandro Police Officer Nels
Niemi. (Pen. Code §§ 187, subd. (a), 189; all subsequent
statutory references are to the Penal Code unless otherwise
specified.) The jury also found true the charged firearm
enhancements and special circumstance allegations.
Specifically, it found true the allegations that (1) defendant
murdered Niemi to prevent or avoid a lawful arrest (§ 190.2,
subd. (a)(5)), and (2) defendant intentionally killed Niemi, a
peace officer engaged in the lawful performance of his duties,
and defendant knew, or reasonably should have known, that
Niemi was such an officer (§ 190.2, subd. (a)(7)). The jury
returned a verdict of death.
The trial court sentenced defendant accordingly. In
conjunction with the death judgment, the court ordered
defendant to pay a restitution fine of $10,000. (§ 1202.4, subd.
(b).) This automatic appeal followed. We affirm the judgment
in its entirety.
I. BACKGROUND
A. Evidence at the Guilt Phase
Defendant did not contest that he shot and killed Niemi.
He did dispute, however, that he committed the killing with the
requisite mental state to be guilty of first degree murder.
Because of the thrust of defendant’s argument, both the
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Opinion of the Court by Cantil-Sakauye, C. J.

prosecution and defense introduced extensive evidence of
defendant’s activities preceding, immediately surrounding, and
following the murder.
1. Prosecution case
The prosecution’s theory of the crime was that defendant
killed Niemi to avoid arrest. To demonstrate that defendant had
reason to fear arrest, the prosecution introduced the testimony
of Mark Sheldon, a police officer with the City of Pleasanton.
Sheldon related that in December 2004 — about seven months
before defendant had the fatal interaction with Niemi —
Sheldon pulled over defendant’s vehicle. Sheldon asked
defendant for his identification, much like Niemi did seven
months later. Instead of producing his driver’s license,
defendant gave Sheldon his California identification card. This
caused Sheldon to suspect that defendant’s license was
suspended and defendant was on probation. Sheldon “did a
records check,” which confirmed that defendant “was on
probation with[] . . . a four-way search and seizure,” which gave
Sheldon the ability “to search [defendant’s] person, property,
vehicle and the home.” Sheldon searched defendant and
discovered suspected methamphetamine and cocaine in his front
pocket. Sheldon arrested defendant, who subsequently spent 45
days in jail. Relying in part on Sheldon’s testimony, the
prosecution argued that defendant shot Niemi after Niemi
requested his identification because defendant thought “[t]he
officer had my ID, he was going to run it. I was subject to search
and seizure, I was going to go to jail, so I killed him.”
To establish what transpired on the day of the murder, the
prosecution introduced testimony of the four individuals who
were with defendant when he shot Niemi. Those present at the

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crime scene were Vincente Heredia, Frank Gonzales, Miguel
Rangel, and Jose Luis Arteaga. Heredia testified that on the
day of the murder, he called defendant, requesting to borrow a
gun. Defendant dropped off a gun for Heredia at the home of
Heredia’s mother, which was located on Doolittle Drive in San
Leandro. Later that day, Heredia discharged the firearm, but
after firing once, the gun jammed. Heredia then called
defendant to inform him that the gun had jammed and
defendant should pick it up.
After receiving the call from Heredia about the jammed
gun, defendant drove to Doolittle Drive. Along the way, he
picked up a friend, Arteaga. Arteaga testified that because
defendant had been drinking “since earlier that day,” his driving
was “very erratic.” Arteaga asked defendant to pull over so he
could drive instead. Defendant complied and gave Arteaga turn-
by-turn directions to Heredia’s place. According to Arteaga,
defendant had multiple firearms in the car, including a shotgun,
a “dark color handgun,” and a box of ammunition for the
shotgun. A subsequent search of defendant’s vehicle confirmed
Arteaga’s report of the shotgun and ammunition.
When defendant and Arteaga arrived at Doolittle Drive,
they entered the home with Heredia. Heredia handed the gun
to defendant, who “took it apart,” “looked at it,” and explained
why the gun jammed. Defendant then put the gun away on his
person. The three men went back outside.
Once outdoors, Heredia, Arteaga, and defendant were
joined by Gonzales (Heredia’s half brother) and Rangel
(Gonzales’s cousin). Defendant had brought a bottle of
Hennessy cognac with him, and the group drank from the bottle.
As the men were standing about, a neighbor called the police

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about “a group of [juveniles] loitering and blocking [a]
driveway.” Officer Niemi was dispatched to the scene. This was
the second time that day that Niemi was called to the Doolittle
Drive location because of juveniles congregating in the area.
Niemi had earlier dispersed a group of individuals without
incident. Responding to the second call, Niemi arrived at the
scene at 10:57 p.m.
All four individuals with defendant — Heredia, Arteaga,
Gonzales, and Rangel — testified regarding the interaction
between the group and Niemi when Niemi arrived at Doolittle
Drive. After pulling up in his patrol vehicle, Niemi asked the
men if they were “the same . . . people he had kicked out of there
earlier.” Heredia told Niemi they were not. Niemi got out of the
car, asked the men if they had been drinking, and requested to
see their identification. Niemi collected an identification card
(ID) first from Heredia and then from defendant. Defendant
took some time to produce his ID, as he was “fumbling around”
with his wallet. He eventually handed his ID to Niemi, who
turned to Rangel and took his ID. Arteaga testified he thought
Niemi was “calling [the identification] in” because he saw the
officer reach for the radio located on his left shoulder.
As Niemi was handling the IDs, defendant pulled a
handgun and shot the officer in the head. The shooting
happened suddenly and unexpectedly.
After defendant shot Niemi, the group scattered. As they
ran, the group’s members heard more shots fired. Arteaga
stated he saw Niemi “on his back, on the ground” with defendant
standing over him before hearing additional shots. Through
eyewitness and expert testimony, the prosecution showed that

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defendant shot Niemi six times in total, emptying the clip in his
handgun.
The five men ran to their cars and divided into two
separate vehicles. Gonzales and Rangel entered Gonzales’s car,
while Heredia, Arteaga, and defendant used Heredia’s.
Although Gonzales and Rangel initially drove away from the
crime scene, they quickly returned. Rangel went to where Niemi
was lying. He “noticed that there was a bottle of Hennessy” and
an ID next to the officer. Rangel picked up both objects, saw
that the ID was neither his nor Heredia’s, and threw the bottle
and ID aside. As it turned out, the ID that Rangel found — later
recovered by the police — was defendant’s. Officers arrived on
the scene thereafter.
The three men in Heredia’s car fled the scene. Heredia
and Arteaga testified that they were panicked and worried.
Both Heredia and Arteaga pressed defendant about why he shot
the police officer. According to Heredia, defendant replied, “I
was gone. I was gone. I was gonna go.” Heredia explained the
expression means that “you were going to go to jail or was [sic]
going to be gone for a while.” Arteaga similarly testified that
defendant responded “I was done,” which means “I’m gonna get
caught.”
Defendant asked Heredia to drive over the Dumbarton
Bridge. Heredia refused because he wanted to go home. As
Heredia was driving on the road that was “the last exit before
the bridge,” defendant told him to stop. Defendant then got out
of the car, walked to the marsh, “threw something” away, and
“came back [to] the car” wearing nothing but boxer shorts.
Heredia dropped defendant off at defendant’s residence. Ashley
Ewert, defendant’s then-girlfriend, was there waiting for him.

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At trial, Ewert testified as follows. Defendant came
through the door wearing just his boxers. He started telling
Ewert “to get everything out.” He then grabbed a bottle of
bleach and went into the shower. When he came out of the
shower, defendant repeated that Ewert had to help him, “to get
everything out,” and that they “had to go.” Ewert left with
defendant in her car. When they were in the car, defendant
“started wiping his hands and his arms with alcohol swabs.”
Ewert asked defendant what was happening, and defendant
confessed that he “just shot a cop,” “just killed a cop.” Defendant
directed Ewert to drive to Arteaga’s house. Arteaga gave
defendant some money. Defendant and Ewert then drove away.
Back in the car, defendant recounted to Ewert more of
what happened. Defendant said that he was with Arteaga and
Heredia when a policer officer “pulled up and asked for their
I.D.s.” Defendant gave the officer his identification. “The police
officer went to reach for his radio, and [defendant] shot him once
in the face, and then four more times.” Defendant “rolled over
the police officer to try to find his I.D., and he grabbed what he
thought was his I.D. . . . and left.” Crucially, defendant told
Ewert why he shot Niemi, explaining that “he had a search and
seizure, and that if the police officer called in his name, he would
be arrested, because he had two guns and drugs on him.”
Ewert and defendant then went to a Safeway grocery
store. There, defendant — who had asthma — stole an inhaler.
The theft was captured on video, and the prosecution showed
the jury the video.
The pair left Safeway, at which point defendant told Ewert
that they had to go back to his residence. Defendant explained
that “he needed to get the gun and bullets that were at his

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house” because “they were the same bullets that were in the gun
that he used to kill the police officer.” Ewert drove defendant
back to his house. Defendant entered the house and returned
with a gun and a bag containing ammunition.
Defendant then told Ewert to drive to the Dumbarton
Bridge. As they were crossing the bridge, Ewert — as instructed
— “slowed down in the far right lane at the top of the bridge,”
and defendant threw away the gun and ammunition. The pair
then exited on to Thornton Avenue and drove by the area that
defendant had stopped with Heredia and Arteaga earlier.
Defendant pointed out the location where he had thrown away
the incriminating evidence. He said that he threw the items
there “because the salt water would get rid of the forensics.”
Ewert took note of the area.
Continuing on their drive, defendant and Ewert went to a
pay phone near a gas station. Ewert observed defendant dialing
but failing to complete a call. Eventually, Ewert and defendant
went to a motel. As defendant was washing up, Ewert observed
defendant “talking out loud, going over all of the things that he
had done to get rid of the evidence.” Defendant also remembered
that “there was a bullet in his room, in the wall from where he
tried to shoot his ex-girlfriend.” This was important to
defendant because “that bullet was the same bullet that was in
the gun that he used to kill the police officer.” However,
defendant and Ewert went to sleep without doing anything
about the lodged bullet.
The next morning, Ewert drove defendant around some
more. Eventually, the two parted. Ewert then went to an
attorney’s office and contacted the police. When police officers
arrived, Ewert directed them to the area of the marsh that

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defendant had pointed out to her the night before. The police
subsequently recovered from this location two handguns — one
of which was the murder weapon — Heredia and Rangel’s IDs,
various clothing articles, and an inhaler. The police arrested
defendant without incident shortly thereafter.
Niemi died from multiple gunshot wounds. He had been
shot in the head, close to his jaw, in the chest, in the abdomen,
and in the thigh.
2. Defense case
The defense focused on establishing that defendant was
heavily intoxicated by the time he arrived at Doolittle Drive.
The day of the shooting (July 25, 2005) was defendant’s twenty-
third birthday. Defendant spent much of that day with a friend,
Angel Miranda; Miranda’s sister, Alina Vallejo; and her
husband, Frank Vallejo.1
The defense called Miranda, Alina, and Frank to establish
how much defendant drank on July 25. Miranda testified that
he telephoned defendant at 2:30 or 3:30 p.m. on his birthday and
invited defendant to come to his house, where he was living with
Alina and Frank. Defendant arrived soon after receiving the
call, and Miranda could tell that defendant had been drinking
already because defendant was “slurring” and “walking kind of
funny.” Alina confirmed she “felt he had been drinking” when
he came to her house.
Frank arrived home at around 4:15 p.m. and joined
Miranda and defendant in drinking beer. Frank estimated that

1
To avoid confusion, we will refer to people who share a
surname — Alina and Frank, as well as members of Niemi’s
family — by their first names.

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defendant had about six beers. Some time around 7:00 or 8:00
p.m., defendant and Miranda left to obtain more liquor. The two
stopped at a bar, “drank a couple of beers, played pool, [and]
smoked a couple of joints.” They then bought a 12- or 18-pack
of beer from the liquor store next door. Upon their return to
Miranda’s residence, Frank saw that defendant had brought
bottles of Hennessy and Rémy Martin cognac. Frank and
defendant then had a couple of shots from each bottle and
“chas[ed] the shots with beer.”
At some point during that evening, defendant received a
phone call and departed. (This was the call from Heredia
concerning the jammed gun.) Frank, Miranda, and Alina were
concerned about defendant driving because defendant appeared
drunk to them, “slurring” his words and “stumbling around.”
The defense similarly elicited from Heredia, Arteaga,
Gonzales, Rangel, and Ewert the fact that defendant displayed
symptoms of intoxication. The defense queried whether the
witnesses thought defendant was drunk and obtained
affirmative answers.
Regarding the witnesses’ inculpatory testimony, the
defense impeached their credibility by confronting them with
their prior inconsistent statements. For instance, the defense
called attention to the fact that when Heredia talked to the
police two days after the shooting, he stated that defendant said,
“I don’t know, I don’t know” when Heredia asked why defendant
shot the officer. This was inconsistent with Heredia’s trial
testimony.
Finally, the defense called to the witness stand Dr. John
Treuting, a toxicologist. Treuting testified that based on the
information he reviewed, his opinion was that defendant “was

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intoxicated at the time of the incident.” Treuting also
volunteered that individuals who consumed the amount of
alcohol that defendant had on the day of the homicide could be
expected to experience “mental confusion and lack of critical
judgment.”
The prosecution sought to undermine Treuting’s
testimony. For instance, the prosecution ascertained that
alcohol affects memory and “[s]o if someone had a good ability to
recall[,] that would tend to indicate that the drinks weren’t
having a significant effect.” Treuting acknowledged the
prosecution’s conclusion “could be” true but cautioned that
“there’s individual variability.”
The prosecution also elicited from the witnesses the fact
that defendant still had control of his faculties. For example,
the prosecution confirmed that defendant was “walking OK,” did
not fall down, and was coherent, et cetera.
Based on evidence of defendant’s intoxication, the defense
argued to the jury that the prosecution had not proved first
degree murder because it failed to show that defendant
deliberated the crime. “Deliberation,” urged the defense, “is just
inconsistent with being so drunk that you can’t talk normally,
you can’t drive a car, you can’t stand without swaying.” The
defense stressed evidence of defendant’s lack of sobriety and
offered more benign explanations for some of defendant’s
actions. For example, regarding the fact that defendant took
some time to produce his identification, the defense
acknowledged that one possible inference is that defendant “was
stalling.” However, “an equally rational interpretation,”
according to the defense, “is that he was too drunk to manipulate
that thing.”

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By contrast, the prosecution emphasized that defendant’s
actions were “rational” and “coordinated,” thus demonstrating
that he deliberated the killing. The prosecution focused on the
fact that, before the shooting, “defendant didn’t have any
problem giving directions” to Arteaga and “was perfectly capable
of doing a fairly complex mechanical task of examining [the
jammed] gun, and determining why it didn’t work.” The
prosecution also highlighted events following the shooting,
including the fact that “after he murdered Dan Niemi,”
defendant did not “just panic and run.” Instead, relying on
Ewert’s and others’ testimony, the prosecutor said that
defendant “gathered up some I.D.s, thinking he got his own, so
he could avoid detection.” Defendant also made the rational
decision to discard incriminating evidence and to clean himself
with bleach and alcohol swabs. The prosecution referred to the
videotape the jury saw of defendant’s conduct at Safeway, which
showed that about an hour after the shooting, defendant was
“walking fine,” “making very precise movements,” and
“executing decisions.” The prosecution mentioned Treuting and
his testimony that alcohol affects memory. Yet, said the
prosecution, defendant’s “memory is superb,” as indicated by the
fact that he remembered the area where he discarded the guns
and the lodged bullet from the incident when he tried to shoot
his ex-girlfriend. Finally, the prosecution stressed defendant’s
motive for killing Niemi: to prevent the officer from discovering
his probationary search condition and arresting him. The
prosecution concluded from all this that defendant “thought it
through,” and after “weigh[ing] the choices in his mind,” chose
to “shoot[] a police officer.”
Having heard the evidence, the jury returned a guilty
verdict and found true the special circumstance allegations that

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rendered defendant death eligible. The case then proceeded to
the penalty phase.
B. Evidence at the Penalty Phase
1. Prosecution case
The prosecution introduced victim impact statements and
evidence that defendant had once threatened a policer officer
and the officer’s family. The victim impact evidence came from
Niemi’s wife, brother, mother, and three of his fellow police
officers. The witnesses testified generally concerning Niemi’s
good character and the grief they experienced when he died.
Niemi’s wife, Dionne Niemi, recounted that her husband
“was a prolific writer.” She authenticated a short story
subsequently admitted in evidence as something Niemi had
written.
The prosecution also introduced evidence of criminal
threats made by defendant. (See § 190.3, factor (b).) Karl Geser,
an officer with the Newark Police Department, testified that in
2001, he was called to a neighborhood disturbance. Responding
to the call, Geser encountered defendant. Defendant was
intoxicated, and Geser arrested him for being drunk in public.
When being transported to the police station, defendant
“became upset” and “made threats to kill [Geser] and [his]
family and [his] kids.” Geser did not bring charges against
defendant for making these threats.
2. Defense case
The defense sought to humanize defendant by introducing
details of his life. Defendant was born in El Salvador to teenage
parents during a time of civil unrest. When he was six or seven
years old, his parents immigrated to the United States, leaving
defendant in the care of his paternal grandparents. Although

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defendant rejoined his family after a few months’ time, his
parents eventually divorced. Defendant felt lonely, as his
parents “never were there for him, when he need[ed] them.”
Defendant developed problems with alcohol abuse in his
adolescence. Defendant’s mother testified that when he was not
drinking, defendant was “friendly and gentle and sweet.”
However, “when he’s drunk . . . he has a very bad temper.”
Defendant had strong relationships with his family
members, many of whom would maintain contact with him if he
were sentenced to life without the possibility of parole.
Emphasizing this evidence, the defense pleaded with the jury to
spare defendant’s life, arguing that defendant was “not an
individual that deserves the death penalty, even though he
committed this heinous crime.”
The jury returned a verdict of death.
II. DISCUSSION
A. Guilt Phase Issues
1. Modification of CALCRIM No. 521
a. Background
At the request of the prosecution, the trial court modified
the standard instruction on the degree of murder. Defendant
contends this was reversible error. He bases his argument not
only on the language of the instruction itself, but also the
prosecution’s remarks in closing argument. Accordingly, we
examine both in some detail.
The standard instruction, CALCRIM No. 521, defines first
degree murder. It specifies that “[t]he defendant is guilty of first
degree murder if the People have proved that he acted willfully,
deliberately, and with premeditation.” The court modified the

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instruction by incorporating verbatim the language of section
189, subdivision (d), which states that “[t]o prove the killing was
‘deliberate and premeditated,’ it is not necessary to prove the
defendant maturely and meaningfully reflected upon the gravity
of the defendant’s act.”2

2
As modified, the portion of the instructions regarding the
degree of murder reads:
“If you decide that the defendant has
committed murder, you must decide whether it is
murder of the first or second degree.
“The defendant is guilty of first degree murder
if the People have proved that he acted willfully,
deliberately, and with premeditation.
“The defendant acted ‘willfully’ if he intended
to kill — in other words, with express malice.
“The defendant acted ‘deliberately’ if he
carefully weighed the considerations for and against
his choice and, knowing the consequences, decided
to kill.
“The defendant acted with ‘premeditation’ if
he decided to kill before committing the act that
caused death.
“The length of time the person spends
considering whether to kill does not alone determine
whether the killing is deliberate and premeditated.
The amount of time required for deliberation and
premeditation may vary from person to person and
according to the circumstances. A decision to kill
made rashly, impulsively, or without careful
consideration is not deliberate and premeditated.
On the other hand, a cold, calculated decision to kill
can be reached quickly. The test, therefore, is not
the length of time, but rather the extent of the
reflection.

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Both the prosecution and defense expounded on the
“maturely and meaningfully reflected” language during closing
arguments. The prosecution’s comments came within the larger
context of an argument regarding the requirements of first
degree murder. The prosecution began by repeating the court’s
instruction that “first degree is willful, deliberate,
premeditated” and “the defendant acted deliberately when he
carefully weighed the considerations for and against his choice
and, knowing the consequences, decided to kill.” To illustrate
the concept of “willful, deliberate and premeditated decisions,”
the prosecution gave an example of a juror who was about to be
late to court and decided to run a traffic light. After stopping at
the intersection and before running the light, the juror “looks in
the rearview mirror, looks both ways, looks ahead, sees no police
cars, no cars coming, nobody in the intersection, [and then] hits
the accelerator.” The prosecution stressed that although the
juror’s actions were “done in a very short period of time,” the
juror nonetheless “thought about the consequences, being late,
getting a ticket, whatever . . . [and] weighed those
considerations and [had] gone ahead and done that.” Such a
juror — said the prosecution — has made a “willful, deliberate,

“To prove the killing was deliberate and
premeditated, it is not necessary to prove the
defendant maturely and meaningfully reflected
upon the gravity of his act.
“The People have the burden of proving beyond
a reasonable doubt that the killing was first degree
murder rather than a lesser crime. If the People
have not met this burden, you may not find the
defendant guilty of first degree murder.
“Any murder which is not proved to be the first
degree is murder of the second degree.”

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and premeditated decision.” The prosecution then analogized
the juror’s choice to run the light to defendant’s decision to kill
Niemi, stating that a variant of his example “is exactly what
[defendant] did when he was faced with being arrested and
going to jail and decided that wasn’t what he wanted to do and
shot and killed Officer Niemi to avoid that consequence, just like
the juror avoided being late.”
The prosecution acknowledged that “the consequences of
killing someone are so much greater than the consequences of
going through a red light.” The prosecution, however, reminded
the jury that “part of the instruction that the judge gives you is
that to find the killing was willful, deliberate, and premeditated,
it is not necessary to prove that the defendant maturely and
meaningfully reflected upon the gravity of his act.” Focusing on
the word “gravity,” the prosecution explained, “[G]ravity means
the seriousness of or the significance of.” Accordingly, “it’s not
necessary for deliberation and premeditation for the person to
reflect on the seriousness of the act meaningfully and maturely.
They just have to know what it is they’re doing, they don’t have
to reflect on how serious. So whether it’s as minor as going
through a red light or as serious as killing someone, both acts
are willful, deliberate, and premeditated.” (Italics added.)
The defense, on the other hand, argued to the jury that
“maturely and meaningful reflection . . . probably means that
youth and ignorance is not a defense.” In other words,
“youngsters and fools can engage in the weighing process as
much as smart and older people can. And the ultimate decision
doesn’t have to be a wise one.” The defense stressed that
whatever the instruction means, “it clearly doesn’t diminish
from the need for the . . . careful weighing and consideration
that deliberation requires.” The defense then reviewed the

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evidence and asked the jury to find that there was “a reasonable
possibility that [defendant] was too drunk” “to have
deliberated.”
Unsurprisingly, the prosecution took a different view. The
prosecution underscored how defendant’s various actions
showed that he thought “clearly” and “rationally” about killing
the officer — including his firing multiple shots at Niemi, his
efforts at avoiding detection, his coordinated movement and
decisionmaking as shown by video taken at Safeway, and his
statements to others that he killed Niemi because Niemi would
have discovered his “search and seizure” condition. The
prosecution concluded by stating that defendant had “more than
enough time to weigh the consequences, [to] make a cold,
calculated decision to kill. And that’s what this defendant did,
and that’s first-degree murder.”
b. Analysis
Defendant contends the court’s modification of CALCRIM
No. 521 amounts to reversible error under both statutory and
constitutional law. He argues that the modified instruction was
erroneous because “the added language, although contained in
section 189, does not set forth a principle of law applicable to
this case.” He further claims that the instruction “was
ambiguous and likely confused and misled the jury about the
mental state required for deliberate and premeditated murder.”
Finally, he asserts that the effect of the instruction “was to lower
the prosecutor’s burden of proof and violate [defendant’s] right
to a jury trial on the mental state elements of deliberate and
premeditated murder.”
As a preliminary matter, we note that defense counsel did
not lodge a specific objection to the court’s modification of

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CALCRIM No. 521. To the extent defendant argues that the
trial court erred in instructing the jury in a way that affected
his substantial rights, however, defendant’s argument may still
be heard on appeal. (See § 1259; People v. Johnson (2015) 60
Cal.4th 966, 993.)
On the merits, we cannot agree that CALCRIM No. 521
was erroneously modified. As defendant acknowledges, we have
previously confronted — and rejected — seemingly the same
claims as those he now raises. In People v. Smithey (1999)
20 Cal.4th 936, 955 (Smithey), we reviewed the first degree
murder conviction of an individual who did not dispute that he
killed the victim but contested that he deliberated and
premeditated the killing. As here, the trial court in Smithey
modified “the standard instruction regarding deliberate and
premeditated murder” by adding the statement, “ ‘To prove the
killing was deliberate and premeditated, it shall not be
necessary to prove the defendant maturely and meaningfully
reflected upon the gravity of his act.’ ” (Id. at p. 979.) On appeal
to the Supreme Court, Smithey argued that the modified
instruction “was reasonably likely to have confused the jury
regarding the mental state required for deliberate and
premeditated murder.” (Id. at p. 980.) Smithey also contended
that the instruction “lowered the prosecution’s burden of proof
and denied him the right to a jury determination on the mental
state elements . . . in violation of the [federal and state
Constitutions].” (Ibid.)
We rejected Smithey’s claims. (Smithey, supra, 20 Cal.4th
at pp. 981–982.) We began with the principle that the trial court
in this case cited, that “ ‘ “[t]he language of a statute defining a
crime or defense is generally an appropriate and desirable basis
for an instruction . . . .” ’ ” (Id. at p. 980, quoting People v.

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

Estrada (1995) 11 Cal.4th 568, 574; see also People v. Poggi
(1988) 45 Cal.3d 306, 327 [“If the jury would have no difficulty
in understanding the statute without guidance, the court need
do no more than instruct in statutory language”].) We reasoned
that this well-settled principle applies with regard to section
189, subdivision (d)’s “maturely and meaningfully reflected”
language because those words “are commonly understood
terms” and “[c]onsidering the instructions as a whole, [there
was] no reasonable likelihood that the jury misunderstood the
phrase ‘maturely and meaningfully reflected’ in the manner
suggested by defendant.” (Smithey, supra, 20 Cal.4th at p. 981.)
On this latter point, we stressed the fact that the trial court
instructed the jury on the definitions of “deliberate” and
“premeditated” and excluded “ ‘a mere unconsidered and rash
impulse’ from the definition of deliberation.” (Ibid.)
Defendant’s claims may be rejected on the same grounds.
The modification here was taken verbatim from statutory
language. Because the statute’s language was stated in
“commonly understood terms,” the presumption is that jury may
be instructed in those terms. (See Smithey, supra, 20 Cal.4th at
pp. 980–981.) Likewise, the trial judge in this case instructed
on the meaning of deliberation and premeditation, informing
jurors that “defendant acted ‘deliberately’ if he carefully
weighed the considerations for and against his choice and,
knowing the consequences, decided to kill” and that he “acted
with ‘premeditation’ if he decided to kill before committing the
act that caused death.” In addition, the court stated that “[a]
decision to kill made rashly, impulsively, or without careful
consideration is not deliberate and premeditated.”

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

When the instructions are considered as a whole,3 there is
no reasonable likelihood that the jury “misunderstood and
misapplied the mental state required for deliberate and
premeditated murder.” (Accord, e.g., Smithey, supra, 20 Cal.4th
at pp. 963–964 [“If a jury instruction is ambiguous, we inquire
whether there is a reasonable likelihood that the jury
misunderstood and misapplied the instruction. [Citations.]
‘ “ ‘[T]he correctness of jury instructions is to be determined
from the entire charge of the court, not from a consideration of
parts of an instruction or from a particular instruction.’ ” ’ ”].)
The jury knew that to convict defendant of first degree murder,
it must find that he deliberated and premeditated the killing.
The jury also knew that if defendant had made the decision to
kill “rashly, impulsively, or without careful consideration,” then
he had not deliberated and premeditated the killing. As such,
whatever meaning the jury ascribed to the phrase “maturely
and meaningfully reflected on the gravity of his act,” it
reasonably understood that the phrase was not synonymous
with a decision to kill that was “rash, impulsive and [with little
or no consideration of] the consequences.” (Accord, e.g., People
v. Gonzales (2011) 51 Cal.4th 894, 940 [“It is fundamental that
jurors are presumed to be intelligent and capable of
understanding and applying the court’s instructions”].)
Contrary to defendant’s assertion, therefore, the modification to
CALCRIM No. 521 did not dilute the requirement that

3
Indeed, the court directed the jury to do just that: examine
the instructions holistically. As the court stated, jurors are to
“[p]ay careful attention to all of these instructions and consider
them together.” The prosecution echoed the court’s charge,
urging jurors to “do as the judge told you, and look at the
instructions as a whole.”

20
 PEOPLE v. RAMIREZ
Opinion of the Court by Cantil-Sakauye, C. J.

defendant must have carefully considered the decision to kill.
By the same token, the modified instruction did not lower the
prosecution’s burden of proof regarding deliberation and
premeditation; nor did it deprive defendant of his right to a jury
determination on this issue. (See Smithey, supra, 20 Cal.4th at
p. 981.)
Defendant attempts to distinguish Smithey in several
ways. First, he asserts that the modified instruction was proper
in Smithey because the defendant in that case “presented a dual
defense of mental impairment and drug intoxication.” By
contrast, defendant presented “a simple intoxication defense.”
According to defendant, “there was not the slightest justification
for instructing in the ‘maturely and meaningfully reflected’
language” under such circumstances.
Defendant bases this argument on the history of section
189. The phrase “maturely and meaningfully reflected” in
section 189, subdivision (d) finds its genesis in People v. Wolff
(1964) 61 Cal.2d 795. (See Smithey, supra, 20 Cal.4th at p. 979;
People v. Dunkle (2005) 36 Cal.4th 861, 911–912 (Dunkle);
People v. Stress (1988) 205 Cal.App.3d 1259, 1269–1270.) In
Wolff, we held that “the true test [for deliberation and
premeditation] must include consideration of the somewhat
limited extent to which this defendant [a 15-year-old diagnosed
schizophrenic] could maturely and meaningfully reflect upon the
gravity of his contemplated act.” (Wolff, supra, 61 Cal.2d at
p. 821.) The decision in Wolff thus made mature and
meaningful reflection part of the deliberation and premeditation
analysis.
In 1981, the Legislature abrogated Wolff’s holding.
(Smithey, supra, 20 Cal.4th at p. 979.) At the same time, it

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

abolished the defense of diminished capacity. (Stats. 1981,
ch. 404, § 4, p. 1592 [enacting Pen. Code, § 28].) In eliminating
that defense, the Legislature provided that “evidence concerning
an accused person’s intoxication, trauma, mental illness,
disease, or defect shall not be admissible to show or negate
capacity to form the particular purpose, intent, motive, malice
aforethought, knowledge, or other mental state required for the
commission of the crime charged.” (§ 25, subd. (a); see also
§ 29.4, subds. (a), (b) [providing that “[e]vidence of voluntary
intoxication shall not be admitted to negate the capacity to form
any mental states for the crimes charged” and that such
evidence “is admissible solely on the issue of whether or not the
defendant actually formed a required specific intent, or, when
charged with murder, whether the defendant premeditated,
deliberated, or harbored express malice aforethought”]; § 28,
subd. (a) [similar provision regarding “[e]vidence of mental
disease, mental defect, or mental disorder”]; People v. Saille
(1991) 54 Cal.3d 1103, 1111–1112 [discussing the legislative
history behind the various provisions]; People v. Elmore (2014)
59 Cal.4th 121, 141–144 [discussing the case law leading to the
enactment of the above statutory provisions].)
From this history, defendant asks us to draw the
conclusion that the “maturely and meaningfully reflected”
language is not a proper basis for a jury instruction when a
defendant’s “mental capacity” is not at issue. Defendant
contends this is so even though he mounted an “intoxication
defense” at trial. Defendant thus distinguishes between mental
incapacity — a term that he uses to refer to mental disorders or
defects — and voluntary intoxication.
We disagree that such a distinction is appropriate for the
purposes here. The diminished capacity defense subsumed both

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

forms of diminishment, applying when “a defendant’s voluntary
intoxication or mental defect may have prevented him from
forming the mental state required for the charged offense.”
(Dunkle, supra, 36 Cal.4th at pp. 910–911, italics added.)
Because the law of diminished capacity applied both to
intoxication and mental defects, the Legislature’s abrogation of
the diminished capacity and Wolff’s requirement for mature and
meaningful reflection is properly understood to have eliminated
that defense in every factual context in which it could have been
raised. The history of the legislative changes in this area thus
lends no credence to the argument that a “maturely and
meaningfully reflected” instruction is appropriate when a
defendant claims some form of mental “incapacity” (as in
Smithey) but not when a defendant relies on a “simple
intoxication defense.”4
Defendant further attempts to distinguish Smithey by
focusing on the prosecution’s closing argument. According to
defendant, the prosecutor here, unlike the prosecutor in
Smithey, told the jury that an intent to kill was sufficient to
satisfy the deliberation and premeditation standard because he
said that individuals charged with first degree murder “just
have to know what it is they’re doing.” (Cf., e.g., People v.
Mendoza (2011) 52 Cal.4th 1056, 1069 [“ ‘ “A verdict of

4
Moreover, defendant is incorrect that the concept of
mature and meaningful reflection was outside the ambit of
proper jury instruction on the facts of this case. Because an
individual may fail to maturely and meaningfully reflect on the
gravity of an act due to intoxication and defendant argued he
was intoxicated at the time of the crimes, the prosecution was
entitled to seek an instruction clarifying it did not need to prove
that defendant engaged in such reflection to establish that he
premeditated and deliberated his act.

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

deliberate and premeditated first degree murder requires more
than a showing of intent to kill. [Citation.] ‘Deliberation’ refers
to careful weighing of considerations in forming a course of
action; ‘premeditation’ means thought over in advance” ’ ”].)

Defendant did not object to the statement when it was
made, instead choosing to rebut the prosecutor’s remarks in
closing argument. Even putting aside the failure to object, we
are not persuaded that the prosecutor misstated the law. The
challenged statement came in the middle of the prosecutor’s
attempt to explain the word “gravity” as that word is used in the
instruction that “[t]o prove the killing was ‘deliberate and
premeditated,’ it is not necessary to prove the defendant
maturely and meaningfully reflected upon the gravity of the
defendant’s act.” (§ 189, subd. (d).) The prosecutor equated “the
gravity of the defendant’s act” with the seriousness of the act.
(Ibid.) The prosecutor thus said that the instruction means “it’s
not necessary for deliberation and premeditation for the person
to reflect on the seriousness of the act meaningfully and
maturely.” Instead, “[t]hey just have to know what it is they’re
doing, they don’t have to reflect on how serious.” “[W]hether [an
act is] as minor as going through a red light or as serious as
killing someone,” the prosecutor added, “both acts [can meet the
standard of being] willful, deliberate, and premeditated.”
Hence, the thrust of the prosecutor’s remarks is not that
defendant did not need to think seriously about what it is he was
doing; instead, it is that defendant did not need to think
maturely and meaningfully about the seriousness of the act he
was performing. Properly understood, the prosecutor did not
suggest to the jury that the mental state required for first degree
murder is simply intent to kill.

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

Other portions of the prosecutor’s closing argument
bolster this conclusion. The prosecutor’s statement that
defendants “just have to know what it is they’re doing” was an
isolated comment within the context of a long argument in
which the prosecutor stressed that the defendant weighed the
consequences of his action and, as such, “deliberated” the
killing. For example, in analogizing the juror’s decision to run
a red light to defendant’s decision to kill Niemi, the prosecutor
emphasized that the juror had “thought about the consequences,
being late, getting a ticket . . . [and] weighed those
considerations and [had] gone ahead.” Elsewhere, the
prosecution focused on defendant’s “thought process,”
reminding the jury time and again that defendant thought that
he was going to get arrested after handing Niemi his
identification, and hence to avoid arrest and jail time, he killed
Niemi. Toward the end of his closing argument, the prosecutor
stressed once more that defendant “thought it through” and
“weighed the consequence of going to jail against killing a police
officer.” The prosecutor’s last comment was to impress upon the
jury that defendant had “more than enough time to weigh the
consequences, [and to] make a cold, calculated decision to kill.”
The overall content and tenor of the prosecutor’s remarks thus
could not reasonably be taken as conveying that a mere intent
to kill suffices for deliberate and premeditated first degree
murder.
Moreover, the phrasing defendant plucks from the context
of the prosecutor’s closing argument must also be considered
alongside the court’s instructions and the defense’s argument.
(Accord, Smithey, supra, 20 Cal.4th at p. 987; People v. Young
(2005) 34 Cal.4th 1149, 1202 (Young) [“The reviewing court also
must consider the arguments of counsel in assessing the

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

probable impact of the [challenged] instruction on the jury”].)
The court told the jurors that if they “believe that the attorney’s
comments on the law conflict with [the court’s] instructions,
[jurors] must follow [the] instructions.” The defense likewise
told the jury that “deliberate can’t be whatever [the prosecutor]
says”; nor can it be “whatever he wants you to believe.” The
defense subsequently explained to the jury the meaning of
“meaningfully and maturely reflect on the gravity of [one’s] act.”
Importantly, the defense maintained that whatever the
instruction means, “it clearly doesn’t diminish from the need for
the true reflect[ion], the careful weighing and consideration that
deliberation requires.” And as noted, the prosecutor never
disputed that he needed to show that defendant weighed the
consequences of his action. Against this backdrop, we do not
think the prosecutor’s isolated remark materially distinguishes
this case from Smithey.
Finally, in his reply brief, defendant highlights the fact
that the court in Smithey instructed the jury with CALJIC
language whereas the court here used CALCRIM language.
Defendant argues that this circumstance makes his case
different from Smithey because “[i]t cannot be assumed that a
modification of a CALJIC instruction can be made to the
replacement CALCRIM instruction.” Defendant cites no
authority to support the proposition that, as a doctrinal matter,
CALJIC instructions may be modified with statutory language
but CALCRIM instructions may not. Furthermore, we are not
persuaded that the modified instruction is inappropriate when
considered alongside the CALCRIM instructions the trial court
relied upon. If anything, the court’s other instructions served to
illustrate the meaning of deliberation and premeditation and so

26
 PEOPLE v. RAMIREZ
Opinion of the Court by Cantil-Sakauye, C. J.

alleviated any confusion that may have been caused by the
modification to CALCRIM No. 521. (See ante.)
For these reasons, we conclude that the trial court did not
err in modifying CALCRIM No. 521 by incorporating statutory
language from section 189.
2. Instruction on reasonable doubt concerning the
degree of murder
a. Background
At trial, defendant requested that the court instruct the
jury with CALJIC No. 8.71. At the time, the instruction stated,
“If you are convinced beyond a reasonable doubt and
unanimously agree that the crime of murder has been
committed by a defendant, but you unanimously agree that you
have a reasonable doubt whether the murder was of the first or
of the second degree, you must give defendant the benefit of that
doubt and return a verdict fixing the murder as of the second
degree.” (CALJIC No. 8.71 (6th ed. 1996).)
The court denied the request, reasoning that the
CALCRIM instructions that it was using to instruct the jury
already “adequately covered” the content of CALJIC No. 8.71.
The court subsequently instructed the jury with CALCRIM No.
521, which, in relevant part, provides: “If you decide that the
defendant has committed murder, you must decide whether it is
murder of the first or second degree. . . . The People have the
burden of proving beyond a reasonable doubt that the killing
was first degree murder rather than a lesser crime. If the People
have not met this burden, you may not find the defendant guilty
of first degree murder. Any murder which is not proved to be
the first degree is murder of the second degree.”

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

The court also gave the pattern instruction on reasonable
doubt, CALCRIM No. 220. The instruction specifies that “a
defendant in a criminal case is presumed to be innocent. This
presumption places upon the People the burden of proving him
guilty beyond a reasonable doubt. Whenever I tell you the
People must prove something, I mean they must prove it beyond
a reasonable doubt. . . . Unless the evidence proves the
defendant guilty beyond a reasonable doubt, he is entitled to an
acquittal and you must find him not guilty.”
In addition, the court referenced the concept of reasonable
doubt when it gave CALCRIM No. 225. The instruction covers
the use of circumstantial evidence to establish intent or mental
state. It states:
“The People must . . . prove not only that the
defendant did the acts charged, but also that he
acted with a particular intent or mental state. . . .
“Before you may rely on circumstantial evidence to
conclude that a fact necessary to find the defendant
guilty has been proved, you must be convinced that
the People have proved each fact essential to that
conclusion beyond a reasonable doubt.
“Also, before you may rely on circumstantial
evidence to conclude that the defendant had the
required intent or mental state, you must be
convinced that the only reasonable conclusion
supported by the circumstantial evidence is that the
defendant had the required intent or mental state.
If you can draw two or more reasonable conclusions
from the circumstantial evidence, and one of those
reasonable conclusions supports a finding that the

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

defendant did have the required intent or mental
state and another reasonable conclusion supports a
finding that the defendant did not, you must
conclude that the required intent or mental state
was not proved by the circumstantial evidence.”
Both the prosecution and defense expounded on the
meaning of reasonable doubt. The defense in particular stressed
that “the law requires [jurors to] give the benefit to [defendant]”
if they reasonably harbor doubt concerning whether defendant
committed first degree murder. The defense further conveyed
that the only true issue in the case was the degree of the murder.
That is, the defense did not contest that defendant murdered
Niemi, instead urging the jury to find he was guilty of only
second degree murder.
The jury found against defendant, convicting him of
murder in the first degree.
b. Analysis
On appeal, defendant argues the trial court’s refusal to
give CALJIC No. 8.71 warrants reversal of his convictions.
Defendant contends the instruction is required under section
1097 as well as our decision in People v. Dewberry (1959)
51 Cal.2d 548 (Dewberry). Section 1097 states: “When it
appears that the defendant has committed a public offense, or
attempted to commit a public offense, and there is reasonable
ground of doubt in which of two or more degrees of the crime or
attempted crime he is guilty, he can be convicted of the lowest
of such degrees only.” Dewberry likewise affirms that “when the
evidence is sufficient to support a finding of guilt of both the
offense charged and a lesser included offense, the [jurors] must
be instructed that if they entertain a reasonable doubt as to

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

which offense has been committed, they must find the defendant
guilty only of the lesser offense.” (Dewberry, supra, 51 Cal.2d at
p. 555.)
We conclude that the trial court’s instructions to the jury
in this case appropriately conveyed the principle embedded in
section 1097 and Dewberry. As noted, the court instructed the
jury with CALCRIM No. 521. The jury was thus told that if it
found defendant guilty of murder, it must determine “whether
it is murder of the first or second degree.” Because the defense
did not dispute that defendant murdered Niemi, the jury knew
it must decide whether defendant committed first or second
degree murder. On this issue, the jury was informed that “[t]he
People have the burden of proving beyond a reasonable doubt
that the killing was first degree murder rather than a lesser
crime.” It was also told “[i]f the People have not met this burden,
you may not find the defendant guilty of first degree murder”
and “[a]ny murder which is not proved to be the first degree is
murder of the second degree.” So instructed, reasonable jurors
would have grasped that if they harbored a reasonable doubt
“that the killing was first degree murder,” then the People had
not discharged their burden to prove such murder. When that
happens, jurors “may not find defendant guilty of first degree
murder” and must return a verdict of second degree murder. In
sum, reasonable jurors would have understood that if they have
reasonable doubt that the murder was of the first degree, they
must find defendant guilty “only of the lesser offense” of second
degree murder. (Dewberry, supra, 51 Cal.2d at p. 555; accord,
e.g., People v. Buenrostro (2018) 6 Cal.5th 367, 431 (Buenrostro)
[“We presume jurors understand and follow the instructions
they are given”].)

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

Defendant concedes that CALCRIM No. 521 at least
“implicit[ly]” delivers this message to the jury. He nonetheless
argues that an explicit instruction in the form of CALJIC
No. 8.71 was needed. We find no merit in defendant’s claim.
We begin by noting that the trial court instructed the jury
using CALCRIM instructions.5 The Judicial Council’s official
guide for using the CALCRIM instructions expressly cautions
against mixing CALCRIM and CALJIC instructions. As the
Judicial Council has stated, “The CALJIC and CALCRIM
instructions should never be used together. While the legal
principles are obviously the same, the organization of concepts
is approached differently. Mixing the two sets of instructions
into a unified whole cannot be done and may result in omissions
or confusion that could severely compromise clarity and
accuracy.” (Judicial Council of Cal., Crim. Jury Instns. (2020)
Guide for Using Judicial Council of Cal. Crim. Jury Instns.,
p. xxii; see also, e.g., People v. Leon (2020) 8 Cal.5th 831, 849,
fn. 9 [referencing this warning]; People v. Beltran (2013) 56
Cal.4th 935, 943, fn. 6 [same].)
We further agree with the court that because the content
of CALJIC No. 8.71 was “adequately covered” by another
instruction (CALCRIM No. 521), there was no need to also
instruct with the language of CALJIC No. 8.71. (See, e.g., People
v. San Nicolas (2004) 34 Cal.4th 614, 675 [“a judge need not
include a legally correct jury instruction when it is duplicative
of other instructions provided to the jury”]; People v. Barajas
(2004) 120 Cal.App.4th 787, 791 [“The court has no duty to give

5
These pattern instructions are “approved by the Judicial
Council” and “are the official instructions for use in the state of
California.” (Cal. Rules of Court, rule 2.1050(a).)

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

an instruction if it is repetitious of another instruction also
given”].) CALJIC No. 8.71 informs jurors that if they are
convinced that a defendant committed murder but
“unanimously agree that you have a reasonable doubt whether
the murder was of the first or of the second degree, you must
give defendant the benefit of that doubt and return a verdict
fixing the murder as of the second degree.” As we have
explained, CALCRIM No. 521 relates the same information,
advising jurors that if they are convinced that a defendant
committed murder but harbor a reasonable doubt regarding
whether he or she committed first degree murder, they must
return a verdict for second degree murder. In short, the
substance of CALJIC No. 8.71 is conveyed by CALCRIM
No. 521.6
Defendant resists this conclusion, attempting to liken his
case to Dewberry. In Dewberry, we reversed the defendant’s
conviction for second degree murder because the trial court did
not charge that “in the case of a reasonable doubt as between
second degree murder and manslaughter, defendant was to be
found guilty of manslaughter.” (Dewberry, supra, 51 Cal.2d at
pp. 558, 550, 555.) We acknowledged that the trial court had

6
Subsequent to defendant’s trial, we held that “the better
practice is not to use the 1996 revised versions of CALJIC Nos.
8.71 and 8.72, as the instructions carry at least some potential
for confusing jurors.” (People v. Moore (2011) 51 Cal.4th 386,
411.) The potential for confusion, however, comes from the
portion of the instructions concerning unanimous agreement
about reasonable doubt (“you unanimously agree that you have
a reasonable doubt” (CALJIC No. 8.71)) and does not affect
defendant’s argument here. (See Moore, at p. 411; Buenrostro,
supra, 6 Cal.5th at pp. 429–431; People v. Salazar (2016)
63 Cal.4th 214, 246–248.)

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

given other instructions regarding reasonable doubt, including:
(1) the “defendant was presumed innocent of any crime until the
contrary had been proved, and in case of reasonable doubt, was
entitled to an acquittal, and that the presumption of innocence
attaches at every stage of the case and to every fact essential to
a conviction;” (2) “if the jurors were convinced beyond a
reasonable doubt that defendant had committed the crime of
murder but entertained a reasonable doubt as to the degree,
they should give defendant the benefit of the doubt and find him
guilty of second degree murder;” and (3) “if [the jurors] were in
doubt as to whether the killing was manslaughter or justifiable
homicide, defendant was to be acquitted.” (Id. at p. 554.) We
found that these instructions were inadequate because “[t]he
failure of the trial court to instruct on the effect of a reasonable
doubt as between any of the included offenses, when it had
instructed as to the effect of such doubt as between the two
highest offenses, and as between the lowest offense and
justifiable homicide, left the instructions with the clearly
erroneous implication that the rule requiring a finding of guilt
of the lesser offense applied only as between first and second
degree murder.” (Id. at p. 557.)
No similar erroneous implication inheres in this case. As
the Attorney General correctly points out, “second degree
murder was the only lesser included offense available to
[defendant’s] jury.” Moreover, the jury was instructed with an
instruction which refers specifically to first and second degree
murder. Accordingly, there was no reasonable likelihood that
the jury misapprehended “that the rule requiring a finding of
guilt of the lesser offense applied only as between [some crimes
other than] first and second degree murder.” (Dewberry, supra,
51 Cal.2d at p. 557.)

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

Rather than being analogous to Dewberry, defendant’s
case is more like People v. Friend (2009) 47 Cal.4th 1 and People
v. Musselwhite (1998) 17 Cal.4th 1216. In Friend and
Musselwhite, we found that the omission of CALJIC No. 8.71 did
not amount to instructional error when the trial court instructed
on other relevant concepts of reasonable doubt. (Friend, supra,
47 Cal.4th at pp. 55–56; Musselwhite, supra, 17 Cal.4th at
pp. 1262–1963.) These cases make clear that CALJIC No. 8.71
is not the sine qua non of a murder trial, even in litigation in
which the degree of murder is in dispute.
Here, the jury was instructed with, inter alia, CALCRIM
No. 521 (definition of first degree murder), CALCRIM No. 220
(the standard instruction on reasonable doubt), and CALCRIM
No. 225 (the use of circumstantial evidence to establish mental
state). These instructions — stressed by the defense during
closing argument — are materially the same as the instructions
given in Friend and Musselwhite. In line with our precedent,
therefore, we find no error in the trial court’s refusal to instruct
with CALJIC No. 8.71.
3. Uniformed police officers present as spectators
a. Background
Before jury proceedings began, defendant filed a motion to
exclude uniformed police officers from the courtroom. Citing the
concern that “a police presence in jury proceedings would . . .
affect defendant’s right to a fair trial,” the defense requested
that “any police officer who attends as a spectator at any stage
of the trial when a juror or prospective juror is present be
ordered to wear civilian clothing.”
The court denied the motion, declining to “rule
prospectively that uniformed police officers can’t come in and

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

watch this trial.” The court explained that a “police officer . . .
who just gets off duty or is going to go on-duty, who wants to
come in and watch a little bit of the trial, may be wearing a
uniform for that reason.” The court thought it unnecessary to
force such persons “to go change clothes” before coming to the
courtroom. Nonetheless, the court reiterated that it understood
defendant’s concerns and would not “permit . . . any spectators
to simply stand in the courtroom” nor “allow the back wall to be
lined with uniformed officers.” The court also left open the
possibility of revisiting the issue if the presence of uniformed
police officers became “over done” at trial.
On the morning of jury instructions and closing
arguments, the defense once again brought up the issue of
uniformed officers in the courtroom. A motion was made and
considered off record. After jury instructions were delivered and
arguments had commenced, the court invited defense counsel to
memorialize the motion. Defense counsel then stated for the
record that the gallery “was full of people” and “there was some
17 or 18 uniformed San Leandro police officers in the gallery.”
Counsel further stated that there was “a juror who is unable to
use the stairs . . . and has to go through the gallery.” Counsel
explained that he felt the situation “should have been
controlled” and asked the court “earlier today to do something
. . . to limit the number of uniformed officers or somehow
ameliorate that effect.”
Before putting its ruling on the record, the court clarified
the argument it heard. The court asked if defense counsel’s
“position is basically that it’s unduly prejudicial to your client to
have so many unformed officers in the gallery at this time.”
Counsel confirmed that it was. The court thereafter explained
it denied counsel’s request because it did not “see any undue

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prejudice to the defendant.” The court supported its ruling by
pointing to several circumstances. First, “it’s not a secret that
this is a case involving the killing of a peace officer.” Second,
the court has rearranged the seating in a way that “tended to
reduce the [prejudicial] effect to which [defendant] referr[ed].”
In particular, the court had “put the defendant’s family in the
front row behind the bailiff” and “nonuniformed people in the
front row . . . behind the jurors.” Although there were still
uniformed officers in the front row on the defense side, the court
viewed this seating arrangement as achieving the benefit of
making uniformed officers less prominent. Third, the court has
“witnessed no conduct in the courtroom that [it] considered to be
in any way intimidating . . . or having an effect of drawing
attention to the uniforms in the courtroom.”
The defense subsequently addressed the jury regarding
the presence of uniformed police officers. Defense counsel told
the jury that “[t]o the extent you may feel some public pressure,
acknowledging that we have a gallery full of police officers,
that’s not appropriate.” Counsel alerted jurors that they were
“not here to send a message to anybody” and “to the extent that
you feel influenced by that, I would not only reject it, I would
resent it and ignore it.” Jurors “got a job to do and it has nothing
to do with anything other than the evidence and the law in this
case.”
Counsel’s remarks echoed the court’s instructions. As part
of its charge to the jury, the court stated: “You must decide what
the facts are. It is up to you alone to decide what happened,
based only on the evidence that has been presented to you in
this trial. Do not let bias, sympathy, prejudice, or public opinion
influence your decision.”

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b. Analysis
Defendant asserts that the trial court abused its discretion
in permitting 17 or 18 uniformed officers to attend trial as
spectators on the day of jury instructions and closing arguments
for the guilt phase. Defendant makes two related claims
regarding the court’s purported error.
Defendant first argues that the trial court abused its
discretion by failing to exercise it. The claim is without merit.
Nothing in the court’s exchange with counsel suggests that it did
not understand that it had the “ ‘broad power to maintain
courtroom security and orderly proceedings.’ ” (People v. Stevens
(2009) 47 Cal.4th 625, 632 (Stevens); see also § 1044 [“It shall be
the duty of the judge to control all proceedings during the
trial”].) When defense counsel first brought up the issue of
uniformed police officers attending courtroom proceedings, the
court indicated that it understood counsel’s concern and would
restrict the number of people in the courtroom so that “the back
wall [will not] be lined with uniformed officers.” The court
otherwise refused to “rule prospectively that uniformed police
officers can’t come in and watch this trial” because it thought
there were legitimate reasons why an officer might come to the
courtroom in his or her uniform. The court nonetheless
recognized that the presence of uniformed police officers may
become problematic or “over done” and expressly allowed
counsel to raise the issue again should that happen.
The court similarly engaged in a thoughtful and calibrated
response when the defense renewed the motion on the day of
closing argument. The court indicated that it understood
defendant was concerned about the prejudice that might result
from the officers’ visible presence. The court specifically

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mentioned the possibility that the officers’ attendance may be
perceived as “intimidating” but noted that it has not “witnessed
[any] conduct” tending to produce such an effect, or even “of
drawing attention to the uniforms in the courtroom.”
The court further explained why it did not think the
officers’ attendance as spectators prejudiced defendant. As the
court observed, the jurors were well aware that “this is a case
involving the killing of a peace officer.” We cannot agree with
defendant that this statement “was not responsive to [his]
motion.” “Any discretionary ruling must take into account the
particular circumstances of the individual case and will be
reviewed in that context.” (Stevens, supra, 47 Cal.4th at p. 637.)
Certainly, a “particular circumstance[]” of this case is that it
involved a killing of a peace officer. (Ibid.) Thus, one reasonable
interpretation of the court’s remark is that the court did not
think the officers’ presence would result in undue prejudice
because, knowing that “this is a case involving the killing of a
peace officer,” the jury expected officers to attend the
proceedings. As such, under the court’s view, jurors were not
likely to feel coerced or overly emotional when that expectation
was met.
Finally, the court took ameliorative action. The court
rearranged the seating so that the front row behind the bailiff
was occupied by defendant’s family members and the front row
closest to the jurors was cleared of uniformed police officers. The
court stated that the directed seating made the officers less
prominent. The court’s sensitivity to the officers’ location vis-à-
vis the jury indicates that the court exercised its reasoned
judgment — and discretion — when considering defendant’s
motion.

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Defendant next argues that the trial court abused its
discretion and thereby deprived him of a fair trial as guaranteed
by the Sixth and Fourteenth Amendments to the United States
Constitution in denying his motion to limit the number of
uniformed officers in the courtroom. Defendant bases his
argument on a line of cases from the United States Supreme
Court addressing “state-sponsored courtroom practices” that
have been challenged as “inherently prejudicial” to a
defendant’s constitutional right to a fair trial. (Carey v.
Musladin (2006) 549 U.S. 70, 76 (Musladin).) In Estelle v.
Williams (1976) 425 U.S. 501, 502, for instance, the high court
considered the custom whereby “an accused . . . is compelled to
wear identifiable prison clothing at his trial by a jury . . . .” The
court held that, even absent a showing of actual prejudice, “an
accused should not be compelled to go to trial in prison or jail
clothing because of the possible impairment of the presumption
[of innocence] so basic to the adversary system.” (Id. at p. 504.)
In other words, compelling a defendant to appear before a jury
in prison garb is inherently prejudicial, and unless justified by
an “essential state policy,” is deemed a violation of due process.
(Id. at p. 505; see also Estes v. Texas (1965) 381 U.S. 532, 542–
543 [“It is true that in most cases involving claims of due process
deprivations we require a showing of identifiable prejudice to
the accused. Nevertheless, at times a procedure employed by
the State involves such a probability that prejudice will result
that it is deemed inherently lacking in due process”].)
The court evaluated yet another state-sponsored
courtroom practice in Holbrook v. Flynn (1986) 475 U.S. 560, 569
(Flynn). There, the petitioner challenged as inherently
prejudicial the fact that at his trial, “the customary courtroom
security force was supplemented by four uniformed state

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troopers sitting in the first row of the spectators’ section.” (Id.
at p. 562.) The uniformed troopers were present because the
court marshals lacked the capacity to provide the preferred two-
officers-per-defendant ratio for the six defendants at trial and a
union contract prevented the troopers from working out of
uniform. (Id. at pp. 564–565.) Given that the six defendants
had been denied bail and thus arguably presented a flight risk,
the trial court had denied the petitioner’s motion to remove the
state troopers. (Id. at p. 565.)
In reviewing the decision, the high court held that “the
conspicuous, or at least noticeable, deployment of security
personnel in a courtroom during trial” (Flynn, supra, 475 U.S.
at p. 568) is not “the sort of inherently prejudicial practice that,
like shackling, should be permitted only where justified by an
essential state interest” (id. at pp. 568–569). This is because of
the “wide[] range of inferences that a juror might reasonably
draw from the officers’ presence.” (Id. at p. 569.) In particular,
the presence of the officers “need not be interpreted as a sign
that [the defendant] is particularly dangerous or culpable,”
because “[i]f they are placed at some distance from the accused,
security officers may well be perceived more as elements of an
impressive drama than as reminders of the defendant’s special
status.” (Ibid.)
The court thus proceeded to a case-specific analysis
addressing whether the precise courtroom arrangement that the
petitioner challenged as inherently prejudicial involved “ ‘an
unacceptable risk . . . of impermissible factors coming into
play.’ ” (Flynn, supra, 475 U.S. at p. 570.) The court cautioned
that “[w]e do not minimize the threat that a roomful of
uniformed and armed policemen might pose to a defendant’s
chances of receiving a fair trial.” (Id. at pp. 570–571.) But it

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

concluded that the mere four uniformed troopers in the context
of the six-defendant trial were “unlikely to have been taken as a
sign of anything other than a normal official concern for the
safety and order of the proceedings.” (Id. at p. 571.) And even
if the court were able to discern a “slight degree of prejudice,”
the presence of the troopers was justified by “the State’s need to
maintain custody over defendants who had been denied bail.”
(Ibid.)
Defendant asks us to find that the presence of 17 or 18
uniformed officers as spectators on the final day of his trial was
inherently prejudicial. As a threshold matter, we note the high
court’s position that “[i]n contrast to state-sponsored courtroom
practices, the effect on a defendant’s fair-trial rights of the
spectator conduct . . . is an open question . . . .” (Musladin,
supra, 549 U.S. at p. 76.) The high court itself “has never
addressed a claim that . . . private-actor courtroom conduct was
so inherently prejudicial that it deprived a defendant of a fair
trial” or applied the test for inherent prejudice in Williams and
Flynn to spectators’ conduct. (Ibid.)
Although the parties disagree about whether the presence
of uniformed police officers in the courtroom constitutes a state-
sponsored practice or private spectators’ conduct, the disposition
of defendant’s claim does not depend on this distinction.
Without directly addressing the question left open by the United
States Supreme Court, our case law appears to have treated
even private-actor courtroom conduct as implicating the
standard of inherent prejudice articulated in Williams and
Flynn. (See, e.g., People v. Myles (2012) 53 Cal.4th 1181, 1215–
1216.) And of particular relevance in this setting, we have said
that “[i]n determining whether the presence of uniformed
officers [as spectators] denies a defendant’s right to a fair trial,

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a reviewing court must look ‘at the scene presented to jurors and
determine whether what they saw was so inherently prejudicial
as to pose an unacceptable threat to defendant’s right to a fair
trial; if the challenged practice is not found inherently
prejudicial and if the defendant fails to show actual prejudice,
the inquiry is over.’ ” (People v. Woodruff (2018) 5 Cal.5th 697,
757 (Woodruff) [quoting Flynn]; but see People v. Cummings
(1993) 4 Cal.4th 1233, 1298–1299 [addressing the impact of
uniformed officers in the courtroom without considering
inherent prejudice or citing Williams or Flynn].) Because the
Attorney General maintains that defendant’s claim fails even
under the “inherent prejudice” test, we will assess defendant’s
claim under that standard.
We evaluate the level of prejudice attributable to a
particular courtroom scene based on the “ ‘totality of the
circumstances.’ ” (Woods v. Dugger (11th Cir. 1991) 923 F.2d
1454, 1457 (Woods), quoting Sheppard v. Maxwell (1966) 384
U.S. 333, 352.) As relevant here, those circumstances may
include the number of uniformed officers present, the location
and grouping of the officers in the gallery, the ratio of uniformed
officers to plainclothes spectators, the officers’ conduct, the
charged crime, the arguments of counsel, and the local
community’s relationship with law enforcement officers. Our
evaluation of all such circumstances must be informed by “our
own experience and common sense.” (Flynn, supra, 475 U.S. at
p. 571, fn. 4.) “[T]he question must be not whether jurors
actually articulated a consciousness of some prejudicial effect,
but rather whether ‘an unacceptable risk [was] presented of
impermissible factors coming into play.’ ” (Id. at p. 570.) At the
same time, we consider whether the discernible “degree of
prejudice” was justified by other interests, such as the officers’

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right to attend trial like any other member of the public. (Id. at
p. 571.) Ultimately, our review must be deferential to the trial
court, whose handling of the challenged scene we evaluate only
for abuse of discretion. (Woodruff, supra, 5 Cal.5th at p. 757.)
We conclude that the presence of uniformed police officers
at defendant’s trial was not inherently prejudicial because
defendant has not demonstrated on this record that there was
“ ‘an unacceptable risk . . . of impermissible factors coming into
play.’ ” (Flynn, supra, 475 U.S. at p. 570.) The record reveals
that there were 17 or 18 uniformed police officers in the
courtroom on the day of closing arguments. “We do not
minimize the threat that a roomful of uniformed and armed
policemen might pose to a defendant’s chances of receiving a fair
trial,” and we recognize that 17 or 18 officers may well have been
a palpable presence. (Id. at pp. 570–571; accord Phillips v. State
(Alaska Ct.App. 2003) 70 P.3d 1128, 1137–1138 [stating that the
“appearance of law enforcement officers en masse in the
spectator gallery posed a threat that the jurors would feel
implicit pressure to return a verdict favorable to law
enforcement interests or sentiment,” but finding no error where
trial court limited number of uniformed officers to five].)
Balanced against this raw number, however, is the fact that the
gallery was “full,” and there is no evidence concerning the ratio
of uniformed officers to nonuniformed spectators. (Accord,
Howard v. State (Tex.Crim.App. 1996) 941 S.W.2d 102, 118
(Howard) [“this Court cannot hold that the mute and distant
presence of twenty peace officers — comprising roughly one-fifth
of the spectator gallery — is prejudicial, per se, without some
other indication of prejudice”]; Davis v. State (Tex.App. 2006)
223 S.W.3d 466, 474 (Davis) [similar]; Lambert v. State (Ind.
2001) 743 N.E.2d 719, 731–732; Meadows v. State (Ind.Ct.App.

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

2003) 785 N.E.2d 1112, 1124 [“The trial court did not abuse its
discretion by allowing up to ten uniformed officers to be present
in the courtroom at one time”].) Accordingly, the record does not
indicate that the number of uniformed officers alone had an
outsized effect on “ ‘the scene presented to jurors.’ ” (Woodruff,
supra, 5 Cal.5th at p. 757.)
The record points to two additional circumstances that
possibly favor defendant’s claim of inherent prejudice: first,
defense counsel’s observation that there was “a juror who . . .
ha[d] to go through the gallery” and second, that some officers
sat in the front row behind the defense. Still, there is no
evidence concerning when the juror passed through the gallery
or that the officers reacted to the juror’s proximity. In fact, the
trial court’s remarks on the record suggest they did not. And
there were no uniformed officers sitting in the front row on the
jury side.
Cutting against a finding of inherent prejudice are the
trial court’s observations. As the trial court commented, it
“witnessed no conduct in the courtroom that [it] considered to be
in any way intimidating . . . or having an effect of drawing
attention to the uniforms in the courtroom.” To be sure, the
court’s remark is not dispositive. Jurors may have been
influenced by the mere presence of the officers even if they did
not believe that the officers were conducting themselves in such
a way as to intimidate them. Yet, the mere possibility of such
influence is not enough to render the officers’ attendance
inherently prejudicial. (See Flynn, supra, 475 U.S. at p. 569.)
And even though not dispositive, the court’s remark is relevant
in assessing “ ‘the scene presented to jurors and . . . whether
what they saw was so inherently prejudicial as to pose an
unacceptable threat to defendant’s right to a fair trial.’ ”

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(Woodruff, supra, 5 Cal.5th at p. 757.) Here, the fact that the
court did not observe any improper conduct — indeed any
conduct even to draw the jury’s attention to the officers — tends
to undermine the claim that defendant’s trial was
fundamentally unfair.
In addition, the court specifically rearranged the seating
so that uniformed officers would not sit the row closest to the
jury. (See, e.g., Davis, supra, 223 S.W.3d at p. 474; Lemley v.
State (1980) 245 Ga. 350, 353–354 [264 S.E.2d 881, 884] [finding
no abuse of discretion when the trial judge “require[d] the police
officers to vacate some of the rows in the front and middle
sections of the courtroom” and “did not allow anybody to sit in
the first three rows adjacent to the jury box” but otherwise
denied the defendant’s request to limit the number of law
enforcement officers attending as spectators].) The location and
conduct of the uniformed officers and the court’s attentiveness
and proactive efforts further cut against any conclusion that the
jury must have been improperly influenced by the officers’
presence.
Also leaning against a finding of inherent prejudice are
defense counsel’s arguments and the court’s instructions.
Counsel warned the jurors about the “public pressure” that they
may feel because of the presence of police officers in the
courtroom. Furthermore, the jury was expressly instructed to
decide the case “based only on the evidence that has been
presented” and to ignore any “bias, sympathy, prejudice, or
public opinion.” To the extent that jurors may have
subconsciously felt any such pressure, counsel’s admonition to
resist being “influenced” and the court’s instruction to ignore
“bias” — even if not sufficient on their own to ensure a fair trial
— can only have had a salutary effect, helping jurors to

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recognize and combat any subconscious pressure. Defendant
has offered us no basis to think the presumption that jurors
followed the court’s instruction was overcome in this case.
(Accord, e.g., People v. Bryant, Smith and Wheeler (2014)
60 Cal.4th 335, 447 [“As we have consistently stated in
numerous contexts we generally presume that jurors are
capable of following, and do follow, the trial court’s
instructions”].)
Finally, as in Flynn, there was a wide range of reasonable
inferences that the jury could have drawn from the officers’
presence. (See Flynn, supra, 475 U.S. at p. 569.) Instead of
inferring that the officers came to the courtroom to influence the
verdict, the jury reasonably could have attributed their presence
to a number of more benign reasons, e.g., to support the victim’s
family, as any friends of the deceased may have done; to show
camaraderie for one another, as members of any organization
with which the deceased was affiliated may have wished to do;
or to watch “an impressive drama” that is legal proceedings in a
capital case, as any curious persons may have done. (Ibid.)7
True, jurors may be affected by the presence of uniformed police
officers regardless of what they believe the officers’ intentions to
be. (See id. at p. 570.) But on the basis of “our own experience
and common sense,” we cannot say that the risk of undue
influence here was unacceptably high. (Id. at p. 571, fn. 4.)

7
Of course, these benign inferences would be all the more
easily drawn if the officers were out of uniform. The fact we find
no error in this case should not dissuade trial courts, upon a
motion and in appropriate circumstances, from ordering that
police officers observing trials do so in civilian garb.

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

In light of these circumstances, we are not persuaded that
the degree of any prejudice defendant suffered by virtue of the
presence of uniformed police officers rose to a level of
fundamental unfairness. Because defendant does not contend
that there was actual prejudice, we conclude that defendant has
not shown that he was denied a fair trial. (See Flynn, supra,
475 U.S. at p. 572; Woodruff, supra, 5 Cal.5th at p. 757.)
Defendant’s attempted reliance on out-of-state authorities
is not persuasive. He points us to two cases, Shootes v. State
(Fla.Dist.Ct.App. 2009) 20 So.3d 434 (Shootes) and Woods,
supra, 923 F.2d 1454, in which the appellate courts reversed the
defendants’ convictions upon a finding that the presence of
uniformed officers rendered the trial unfair. Both cases are
distinguishable from the matter at hand.
In Shootes, there were at least 25 and as many as 70
officers in the courtroom; at least half of the audience was
comprised of such officers; and “the officers sat together in the
front rows of the gallery, closest to the jury.” (Shootes, supra,
20 So.3d at p. 436.) Moreover, “unlike cases where clothing or
accessories worn by spectators might merely have shown
support for the victim or another party in general, in [Shootes]
the officers’ apparel was actually a feature of the trial, directly
related to [the defendant’s] theory of self-defense.” (Id. at
pp. 439–440 [discussing the defendant’s claim that he could not
recognize officers wearing official apparel as police officers until
after he fired upon them and concluding that within such a
context, “the display of various formal and informal . . . uniforms
[worn by the spectators] could easily have been seen by the jury
as a live demonstration of the appearance of the officers involved
in the altercation with [the defendant]”].) No such
circumstances are present in this case.

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

Woods is similarly far afield. The defendant in that case
was charged with murdering a correctional officer. His trial was
held in “a small rural county” with a population of just over ten
thousand people, one-third of whom were prisoners. (Woods,
supra, 923 F.2d at p. 1457.) The local economy was dominated
by prisons, and several jurors either worked in the prisons or
had relatives working in the prisons. (See id. at pp. 1457–1458.)
Adding to the charged atmosphere, the murder victim had given
an interview shortly before his death in which he said that the
correctional institution was “dangerously understaffed,” and “he
feared for his safety as a prison guard.” (Id. at p. 1458.) His
death then “became a focal point for the lobbying efforts . . . for
the government to hire more correctional officers.” (Ibid.)
There is little similarity between Woods and the present
case. As the Attorney General correctly notes, defendant was
tried in Alameda County, “not a ‘small rural county.’ ”
Furthermore, “no unusual economic circumstances related to
law enforcement appear in the record”; and “the record shows
no . . . political activity centered on Niemi’s death.” In contrast
to Woods, a case in which the jurors may have personally known
the officers in attendance, expected to continue being in contact
with them, or were disposed to be especially sympathetic to
peace officers, there was little possibility of such familiarity or
solidarity here. The result in Woods must be read in the context
of its facts. (See Brown v. State (2000) 132 Md.App. 250, 269–
270 [cabining Woods to its facts]; Howard, supra, 941 S.W.2d at
p. 118, fn. 15 [similar].) Those facts find no counterpart in this
matter.
In sum, although we acknowledge the risk of undue
influence when a large number of uniformed police officers
occupies the gallery, under the particular circumstances of this

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

case we find that the trial court did not abuse its discretion in
denying defendant’s motion to limit the number of uniformed
officers in the courtroom.
4. Asserted cumulative effect of alleged errors
Defendant contends that reversal of his convictions is
required because of the cumulative effects of asserted errors
occurring during the guilt phase. “Because we have found no
error, there is no cumulative prejudice to evaluate.” (People v.
Lopez (2018) 5 Cal.5th 339, 371.)
B. Penalty Phase Issues
1. Victim impact evidence
a. Background
At the penalty phase, the prosecution sought to introduce
as victim impact evidence the testimony of Niemi’s family
members and three of his fellow police officers. The defense filed
a motion to exclude any testimony from the officers, arguing
that the testimony would be prejudicial and that, as a
categorical matter, victim impact statements should be
restricted to family members. In response, the prosecution
made an offer of proof regarding the officers’ anticipated
testimony. After listening to the proffer, the court ruled that it
would permit the officers to testify. As the court explained, “the
occupation of the victim is so much a part of this trial,” and the
testimony by Niemi’s colleagues would show “not only what kind
of person he was, but what kind of cop he was.”
Niemi’s colleagues testified generally in accordance with
the prosecution’s offer of proof. In particular, Curt Bar, a San
Leandro police officer, related that he and Niemi went through
police training together and became “very close friends.” Bar
learned that he and Niemi had many things in common,

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including their “policing styles.” According to Bar, Niemi had a
“very comforting demeanor” when interacting with members of
the public “who had just had a traumatic experience” and was
not “disrespectful” while “dealing with people who committed
crimes.”
Bar further testified that he and Niemi grew close outside
of work. When Bar got married, Niemi was his best man. The
two men and their families knew each other well, so much so
that Bar’s children still talked about Niemi after he died.
On the night Niemi was murdered, Bar was notified and
went to the hospital where Niemi had been transported. After
other people left, Bar stood “over my friend” and “prayed over
him.” Bar continued to think of Niemi “a great deal.” He
testified that he could “count on my hand the good friends I’ve
had in my life” and “Niemi was a very, very good friend of mine.”
Mario Marez next testified that he was formerly an officer
for the San Leandro Police Department and that he had met
Niemi before Niemi became a police officer. He related that
Niemi had expressed much interest in Marez’s police work, and,
as the two became friends, Marez “realized [Niemi] would make
a great officer.”8 Marez subsequently encouraged Niemi to join
law enforcement. He also helped to allay Niemi’s wife’s concerns
“about the dangers of being a police officer,” telling her that San
Leandro was a relatively safe place.

8
Niemi’s mother testified that her son had wanted to
become a police officer since he was 19 but was dissuaded by his
parents. His wife likewise discouraged him from joining the
force because she thought “it was dangerous.” However, she
eventually changed her mind, and Niemi became a police officer
at a later age than most.

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

When Niemi was killed, Marez drove to the crime scene
“faster than [he] ever did in [his] entire police career.” He saw
Niemi and “knew he was gone.” After Niemi’s death, Marez
resigned from the San Leandro Police Department because he
“could no longer serve the public [in] the way I should . . . , and
the way Dan would want me to.” Marez still thought about
Niemi “every day,” and felt guilt and regret “for encouraging
[Niemi] to join the police department.”
After Marez’s testimony and outside of the presence of the
jury, defense counsel put on the record the witness’s demeanor
while on the stand. According to counsel, Marez “had collapsed,
basically, was just crying up there.” As Marez left the stand, he
and the next witness, Deborah Trujillo, “exchanged hugs and
were crying.” Counsel requested an admonition. The court
agreed and told the gallery that “everyone who may be
witnesses, or are involved in the case, [is asked] to refrain from
engaging in any kind of conduct which might potentially affect
jurors, and that includes physical contact between witnesses,
like hugs.”
Trujillo was then called as a witness. She testified that
she and Niemi started at the San Leandro Police Department
together. The two became “quick friends.” Trujillo got to know
Niemi’s family, and Niemi helped Trujillo through a failed
relationship. As one of four women police officers in San
Leandro, Trujillo experienced certain challenges; Niemi helped
her to deal with them, to “move forward, and not get hung up by
some of the challenges I had to face.” Trujillo explained Niemi’s
thinking about his colleagues, stating that “for Dan, if you were
a police officer . . . you weren’t the guy that came from here, or
the female that you weren’t sure could make it. . . . [Instead],
you were a cop, and he treated everyone like that.”

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Trujillo was on patrol when Niemi was killed. She drove
to the scene, saw Niemi “laying there,” and “knew that he was
dead.” Trujillo insisted that she would be one of the officers to
talk to Dionne Niemi, Niemi’s wife. Trujillo then proceeded with
Marez and another officer to break the news of Niemi’s death to
Dionne and Niemi’s parents. Trujillo continued to maintain
contact with the Niemis, stating that she was “lucky to call Dan
my friend, and even more honored that I could continue to tell
stories to his children.” Niemi’s death had a lasting impact on
Trujillo’s life. “Every day,” she lived with the fact that she did
not get to Niemi “fast enough.”
In addition to the live witness testimony, the prosecution
also introduced a short story written by Niemi. The defense had
objected, and the court held a hearing on the matter. The
prosecutor submitted that he would like to enter into evidence
two pieces of writing by Niemi, one of which was a longer story
titled, Cold Phrase, and the other an untitled shorter work. The
prosecutor explained that the stories “show the kind of person
[Niemi] was, [and] that directly affects the impact that his death
would have on his friends and relatives.” The defense, on the
other hand, expressed the concern that the stories would
“sidetrack [jurors] from the true issue at hand.”
After hearing the parties’ arguments, the court allowed
the prosecution to introduce only the untitled shorter story. The
court reasoned that “it would be cumulative to admit both.”
With regard the content of the writings, the court thought the
longer story — which was about “two burning children . . . in a
house on fire” — was too emotional and went “beyond the simple
purpose for which [it] is being offered.” The court did not express
the same reservations regarding the shorter story, which
concerned Niemi finding an abandoned, recently dead newborn

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in a garbage can. Nonetheless, the court stipulated that it would
not allow the story to be read to the jury “by a witness who had
an emotional connection with Officer Niemi” out of the concern
that such a reading “may invoke an emotional response that
would be inappropriate.”
Dionne Niemi authenticated the story as having been
authored by her husband. She also contextualized the writing,
explaining that Niemi “was a prolific writer” and that
“sometimes if he had a particularly hard call or something that
touched him he would write about it.” The prosecution then
offered the story as an exhibit. In his closing statement, the
prosecutor referred to the exhibit, urging the jury to take it “into
the jury room and read it” “in order to learn a little bit more
about what a man Dan Niemi was.”9

9
In its entirety, the story reads:
“Every day people touch our lives. Sometimes
they have a profound effect on us and sometimes the
effect is so small we never notice the change. Most
of the time, however, it lies somewhere in between.
This is one of those times, in between.
“When I first met the baby boy he was only
about a day old. His little hand, so small it would
probably not grasp completely around my thumb,
was curled into a tiny fist held tightly against his
cheek. His legs were tucked into his chest and the
hair on his head, so black and full, was still wet.
Lying on his side, his head was cocked back and I
couldn’t see his tiny face because it was pressed so
hard against the inside of the garbage can where we
found him. The plastic bag which served as his last
bed was pulled away and under the harsh light of
my flashlight I could see his skin was no longer the

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healthy pink of a newborn child; instead it was a
medium shade of gray as one might see on a pair of
gym sweats or one of those old metal folding chairs.
I stood there, waiting for a feeling, any feeling, but
none came. To my surprise and relief I felt nothing
save a dull anger, a muted frustration. My partner
said it best; he had been at the scene of a fatal
accident just the night before and stood by helplessly
as a woman died. We spoke later and he said, ‘We
have a job to do and this is part of it. We move on.’
And that was what I did. I moved on, did my job,
and left the feelings alone for a while.
“It started with a seventeen-year-old girl
arriving at the hospital with blood between her legs
and a severed umbilical cord still dangling, but no
baby. She denied ever being pregnant. We were
sent to her house for the obvious reason: to find the
infant. On the way in we passed the two garbage
cans set out on the curb for the morning’s pickup. I
saw them and, in hindsight, I think I already knew
where to look. But that’s not how it was done and
we started inside. I found the clothes hidden under
her bed, soaked in blood and wrapped in a plastic
bag not unlike the one holding the infant and tossed
in amongst the rotting food and old newspapers. We
found the bloodstained mattress where she had
probably brought the little boy into the world. We
found the bloody toilet bowl brush that had been
used to clean the mess in the bathroom.
“And then we found the baby. I will probably
never forget the feeling as I was looking in a
bedroom closet and I heard over the radio, ‘Have the
ambulance respond now.’ That was all. Just a
simple call for the ambulance waiting down the
street. Like a switch turned off, I stopped my search,
shut the door, turned and walked outside knowing
the hard part was over.

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b. Analysis
Defendant challenges the admission of certain victim
impact evidence — specifically, the police officers’ testimony and
the short story. As the United States Supreme Court has
instructed, “[v]ictim impact evidence is simply another form or

“I’ve often heard my friends complain about
their newborn baby’s crying into the night. I’ve
always told them enjoy it now, because having a
daughter of my own, I see how fast they grow and
soon those tiny cries are replaced with words like
‘Mommy’ and ‘Daddy’ and ‘I don’t want to go to bed
now!’ I try to tell my friends, enjoy those cries
because when they stop it means your child is
growing up.
“Now I’ve seen the other side of that dark coin.
I’ve seen what it’s like when those cries stop only to
be replaced by the silence and the stillness. He had
been born alive, wrapped in a plastic bag and put out
with the trash. In the cold, harsh light of my
flashlight, I saw the silence.
“We walk into the mess and the mire, we do
our job as best we know, and then we walk out again.
But we never leave without taking a little bit with
us; it’s called learning. We take a little piece of every
situation with us that help us deal with the next
time we are called on to walk back into the mess and
the mire.
“From this one I will take a little bit to carry
with me so that when I see my little girl I make sure
to give her an extra hug, or let her stay up just a
minute longer. I will use it as a reminder to make
sure and wave back when the children wave at me.
I will use it to appreciate the life I have.
“I only fear that this time I may have left a
little bit of me back there, in that mess and that
mire.”

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method of informing the sentencing authority about the specific
harm caused by the crime in question, evidence of a general type
long considered by sentencing authorities.” (Payne v. Tennessee
(1991) 501 U.S. 808, 825 (Payne).) Under the court’s
jurisprudence, “a State may properly conclude that for the jury
to assess meaningfully the defendant’s moral culpability and
blameworthiness, it should have before it at the sentencing
phase evidence of the specific harm caused by the defendant.”
(Ibid.) As such, “[t]he federal Constitution bars victim impact
evidence only if it is so unduly prejudicial as to render the trial
fundamentally unfair.” (People v. Brady (2010) 50 Cal.4th 547,
574 (Brady).) The same is true under California law: “Unless it
invites a purely irrational response, evidence of the effect of a
capital murder on the loved ones of the victim and the
community is relevant and admissible under section 190.3,
factor (a) as a circumstance of the crime.” (Ibid.)
i. Testimony of fellow police officers
Consistent with his trial argument, defendant contends
that Niemi’s fellow officers should not have been allowed to
testify because, under his reading of Payne, coworkers are not
authorized to give victim impact evidence. Defendant
acknowledges that we have “repeatedly rejected” such a claim.
We have. (See, e.g., Brady, supra, 50 Cal.4th at p. 578 [“Victim
impact evidence, however, is not limited to family members, but
may include the effects on the victim’s friends, coworkers, and
the community — including when the victim’s coworkers are law
enforcement personnel”]; People v. Henriquez (2017) 4 Cal.5th 1,
37–38 [relying on Brady to reject the defendant’s argument that
“the trial court erred by admitting victim impact testimony by
‘non-family members’ ”]; People v. Taylor (2010) 48 Cal.4th 574,
646 [rejecting the argument that “admitting victim impact

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testimony from a witness who was neither a family member nor
a close friend of the victim violated the Eighth Amendment”];
People v. Ervine (2009) 47 Cal.4th 745, 792–793 [similar,
collecting cases]; People v. Pollock (2004) 32 Cal.4th 1153, 1183
[“Defendant argues that only family members can give victim
impact testimony. [¶] Defendant is mistaken”]; People v. Marks
(2003) 31 Cal.4th 197, 235 (Marks) [“Defendant contends the
evidence should have been excluded because [the witness] was
not a relative of [the victim]. The United States Supreme Court
has not restricted the admissibility of victim impact evidence to
relatives, however”]; accord, e.g., People v. Scott (2011) 52
Cal.4th 452, 495 [“Victim impact evidence is commonly provided
by several family members, colleagues, or friends”].)
Defendant urges us to reconsider our precedent.10 He has
offered no persuasive reason to do so. Indeed, defendant’s
reading of Payne finds little support in the case itself. It is true
that the victim impact evidence at issue in Payne consisted of
the testimony of a murder victim’s mother, who said that her
grandson cried for his mother and sister, both of whom were
killed by the defendant. (Payne, supra, 501 U.S. at pp. 814–815.)
As we have noted, however, “[t]he Payne court . . . did not
restrict its holding to the circumstances there presented.”
(People v. Hartsch (2010) 49 Cal.4th 472, 508 (Hartsch).)
Instead, the court “stated its holding in broad terms” (id. at
p. 509), decreeing that “a State may properly conclude that for
the jury to assess meaningfully the defendant’s moral
culpability and blameworthiness, it should have before it at the
sentencing phase evidence of the specific harm caused by the

10
Alternatively, he “presents this claim for purposes of
exhausting his state court remedies.”

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defendant.” (Payne, supra, 501 U.S. at p. 825.) The court also
explained its holding in reference to non-family members,
maintaining that “ ‘[t]he State has a legitimate interest in . . .
reminding the sentencer that just as the murderer should be
considered as an individual, so too the victim is an individual
whose death represents a unique loss to society and in particular
to his family.’ ” (Ibid.; see also id. at p. 830 (conc. opn. of
O’Connor, J.) [“A State may decide that the jury, before
determining whether a convicted murderer should receive the
death penalty, should know the full extent of the harm caused
by the crime, including its impact on the victim’s family and
community”]; Marks, supra, 31 Cal.4th at pp. 235–236 [noting
that “the separate opinions in Payne recognized the broad scope
of victim impact evidence”].)
At core, the holding in Payne rests on the premise that
victim impact evidence is permissible because the evidence is
“designed to show . . . each victim’s ‘uniqueness as an individual
human being’ ” and, in so doing, demonstrate “the specific harm
caused by the crime in question.” (Payne, supra, 501 U.S. at
pp. 823, 825.) Given this rationale, it is difficult to discern why,
under Payne, a victim’s “ ‘uniqueness as an individual human
being’ ” may be attested to only by family members, and not —
as here — by a victim’s colleagues and close friends. (Id. at
p. 823.)
Of course, Payne does not prohibit a state from imposing
more stringent limits on the use of victim impact evidence than
the federal Constitution requires. (See Payne, supra, 501 U.S.
at p. 827 [“We thus hold that if the State chooses to permit the
admission of victim impact evidence and prosecutorial
argument on that subject, the Eighth Amendment erects no per
se bar” (first italics added)]; id. at p. 831 (conc. opn. of O’Connor,

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J.) [“We do not hold today that victim impact evidence must be
admitted, or even that it should be admitted”].) But the mere
fact that some states’ legislatures have adopted such limitations
has little bearing on whether we, the courts, should do so when
our Legislature has not. As such, defendant’s citations to out-
of-state authorities interpreting out-of-state statutes (see, e.g.,
State v. Muhammad (N.J. 1996) 678 A.2d 164; Lott v. State
(Okla.Crim.App. 2004) 98 P.3d 318) do not persuade us to
reconsider our precedent regarding the proper limits of victim
impact statement under Payne and section 190.3, factor (a).
Defendant also asserts that the officers’ testimony should
have been excluded under Evidence Code section 352 on the
ground that the testimony was unduly prejudicial. (See ibid.
[“The court in its discretion may exclude evidence if its probative
value is substantially outweighed by the probability that its
admission will . . . create substantial danger of undue
prejudice”].) As explained below, we find that the trial court did
not abuse its discretion in allowing Bar, Marez, and Trujillo to
testify.
The trial court in this case “carefully considered whether
the proposed testimony fell within appropriate limits.” (People
v. Dykes (2009) 46 Cal.4th 731, 782 (Dykes).) When the defense
challenged the prosecution’s anticipated use of the officers’
testimony, the court had the prosecutor make an offer of proof.
The court then noted that the evidence offered by Niemi’s fellow
police officers was highly probative. We agree. Defendant was
charged with murdering a peace officer, and both of the special
circumstances that rendered him eligible for the death penalty
— that he killed Niemi to avoid arrest, and that he killed Niemi
knowing that Niemi was a peace officer engaging in the
performance of his duties — related to the nature of Niemi’s

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work. Because “the occupation of the victim is so much a part of
this trial,” the testimony by Niemi’s colleagues had significant
probative value as it showed “not only what kind of person he
was, but what kind of cop he was.” (Accord, Marks, supra,
31 Cal.4th at pp. 210–211 [admitting the testimony of the
victim’s employee when the victim was killed at work].)
Consistent with the trial court’s expectation that the
officers would provide the jury with a glimpse of Niemi as a
police officer, Bar testified regarding Niemi’s “policing style[].”
Marez recounted that he had thought that Niemi “would make
a great officer,” and that he encouraged Niemi to join his own
police department. Trujillo explained how Niemi viewed his
colleagues, stating that for Niemi, it did not matter if an officer
was a person who “came from here” or a woman who might not
have proved her capabilities; instead, what mattered to Niemi
was that “you were a cop.”
To be sure, the officers also recounted the more personal
aspects of their relationship with Niemi. Their collective
statement, however, “was not unduly emotional or
inflammatory, and it was relatively brief.” (People v. Virgil
(2011) 51 Cal.4th 1210, 1275.) As to length, the three officers’
transcribed testimony totaled 22 pages of the reporter’s
transcript. By way of comparison, Officer Geser — who testified
regarding defendant’s threat of violence under section 190.3,
factor (b) — alone gave 10 pages of testimony, and Niemi’s
family members gave testimony totaling 32 pages. Concerning
substance, the officers gave “traditional victim impact
evidence,” “extoll[ing] Officer [Niemi’s] virtues and
demonstrat[ing] they missed him.” (Brady, supra, 50 Cal.4th at
p. 577.) “As in other cases, the witnesses here described the
‘immediate effects’ of the murders, as well as their ‘residual and

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lasting impact.’ ” (People v. Verdugo (2010) 50 Cal.4th 263, 298
(Verdugo).) Under similar circumstances, we have concluded
that “[n]either the type nor the amount of evidence warrants
reversal.” (Brady, supra, 50 Cal.4th at p. 577.)
This is not to say that the testimony was lacking in
emotive content. “Victim impact evidence is emotionally moving
by its very nature,” however, and “that fact alone does not make
it improper.” (Verdugo, supra, 50 Cal.4th at p. 299; see also, e.g.,
People v. Booker (2011) 51 Cal.4th 141, 193.) Niemi’s colleagues
testified about feeling guilt and regret over his death, and Marez
testified that he resigned from the police force because of
Niemi’s death. Although “emotionally moving,” such statements
are within the permissible scope of victim impact evidence.
(Verdugo, supra, 50 Cal.4th at p. 299; see People v. Ervine (2009)
47 Cal.4th 745, 793 [“Nor are victim impact witnesses limited to
expressions of grief, for our case law permits a showing of ‘the
specific harm caused by the defendant’ [citation], which
encompasses the spectrum of human responses, including anger
and aggressiveness [citation], fear [citation], and an inability to
work”]; People v. Blacksher (2011) 52 Cal.4th 769, 841.)
Likewise, the fact that Marez cried on the stand “does not render
that testimony inflammatory.” (Verdugo, supra, 50 Cal.4th at
p. 298.) Marez and Trujillo also hugged, but that contact —
followed promptly by the trial court’s admonishment for
witnesses to refrain from such behavior — did not turn the
admission of their otherwise appropriate testimony into an
abuse of discretion.
ii. Admission of short story
Defendant also argues the short story should have been
excluded under Evidence Code section 352. Based on an

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analysis similar to that conducted above, we find no merit in
defendant’s claim.
The trial court “carefully considered” the story, taking into
account both its length and subject matter. (Dykes, supra,
46 Cal.4th at p. 782.) The court exercised its discretion in
choosing to admit the short story but to exclude a longer story
that it determined to be too emotional. The court further limited
the risk of undue prejudice by not allowing a person close to
Niemi to read the story, thus avoiding “an emotional response
that would be inappropriate.”
Regarding the writing itself, we acknowledge the moving
nature of the essay. At the same time, we recognize the extent
to which the story is probative of Niemi’s character, showing
him as a police officer, a father to a young daughter, and a
person touched by the tragic incident described therein. In
short, the story was relevant to show Niemi’s “ ‘uniqueness as
an individual human being.’ ” (Payne, supra, 501 U.S. at p. 823.)
Nor can we say that the story was cumulative of the live
witnesses’ testimony; it was through the story only that the jury
heard directly from the victim himself, contrasted with hearing
about him. Ultimately, defendant has provided no cogent
ground to distinguish this story from other creative works that
we found admissible in the past. (See People v. Mendez (2019)
7 Cal.5th 680, 713–714 [finding no error when the victim’s
mother read to the jury a poem her daughter had written
“bemoan[ing] gang violence” before the daughter was killed in a
gang-related shooting]; Verdugo, supra, 50 Cal.4th at p. 299
[finding no error in the trial court’s decision to play for the jury
songs that the victim had recorded and given to her father
because the songs “simply illustrated the gift [a witness] had

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described in her testimony” and positing that “[h]ad [the victim]
instead created a collage of photographs of Mexico for her father,
taken by individuals unrelated to the family, the trial court
would have likewise acted properly in allowing the jury to view
it”].) Given the wide discretion afforded to trial courts regarding
the admissibility of such evidence, we cannot say that the court
here erred in allowing the short story to be admitted into
evidence.
Against this backdrop, defendant offers only speculation.
For instance, he contends that because the story involved the
“repugnant” death of a baby, “[t]he risk was high that the
outraged emotion of the story would spill over, and the jury
would judge [defendant] based on a distressing incident that had
nothing to do with him.” The record is bereft of any
circumstantial evidence indicating that the jury might have
used the story in this prejudicial manner. As the Attorney
General convincingly urges, the prosecution’s argument tended
to dispel the likelihood that the jury may have misdirected
toward defendant any outrage it might have felt concerning the
infant’s death. “The prosecutor directed the jury’s attention to
the short story in the context of arguing that Niemi ‘was a
unique individual.’ [Citation.] The prosecutor did not review
the story’s description of finding the dead infant, nor did he
connect the story to [defendant]. Instead, he recited the last
part of the story . . . and urged the jury to read the full story ‘to
learn more about what a unique individual’ Niemi was ‘from
Dan Niemi himself.’ ” In other words, the prosecution urged the
jury to use the story for its proper purpose. Finally, the length
of the jury’s deliberations — four days — “rather strongly
implies that, rather than rushing to judgment under the
influence of unbridled passion, the jurors arrived at their death

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verdict only after a full and careful review of the relevant
evidence and of the legitimate arguments for and against the
death penalty.” (People v. Jurado (2006) 38 Cal.4th 72, 134.)11
In sum, we find no error in the trial court’s admission of
the victim impact evidence challenged here.
2. Instruction on lingering doubt
a. Background
Prior to the commencement of the penalty phase, defense
counsel submitted a proposed special instruction on lingering
doubt, which read, in pertinent part, “In determining mitigating
factors, the jurors may also consider any lingering doubt they
may have concerning their verdict in the guilt phase.” The
prosecution opposed the motion, asserting that it was
unnecessary. The trial court agreed. The court nonetheless
made it clear that the defense could argue lingering doubt to the
jury directly.
In its charge to the jury, the court instructed on the
various aggravating and mitigating circumstances enumerated

11
Of course, the length of deliberations may also indicate
that “the question of penalty [was] a close and difficult one.”
Yet, although potentially relevant in prejudice analysis, the
closeness of the penalty determination does not render the
admission of victim impact evidence an error. (See, e.g., Dykes,
supra, 46 Cal.4th at p. 786 [“We have not restricted victim-
impact evidence to cases in which it would have little effect upon
the verdict. . . . The relevance of the evidence does not depend
upon the strength or weakness of the prosecution’s case in
aggravation. Although this type of evidence should not be
admitted if it is inflammatory, as long as it is otherwise
admissible, it properly may form a basis — along with the
prosecutor’s related argument — for the jury’s decision in favor
of the death penalty”].)

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in section 190.3. In particular, the court instructed the jury
regarding factors (a) and (k). Jurors were thus told that in
determining whether defendant should receive life or death,
they should consider “[t]he circumstances of the crime” (see
§ 190.3, factor (a)), as well as “[a]ny other circumstance, whether
related to these charges or not, that lessens the gravity of the
crime even though the circumstance is not a legal excuse or
justification” (see § 190.3, factor (k)) — and they were told that
“any other circumstance” included “sympathy or compassion for
a defendant or anything you consider to be a mitigating factor,
regardless of whether it is one of the factors listed [in section
190.3].”
The defense followed up on the instructions by urging the
jury to consider lingering doubt as a mitigating factor. As
counsel stated in closing argument, “if any of you still have
perhaps not a reasonable doubt but some residual, minor,
lingering doubt about [defendant’s] state of intoxication,” then
“that’s a mitigating factor for you to look at in order to support
a verdict of life in prison.”
b. Analysis
Defendant contends that the trial court was obligated to
specifically instruct the jury that it may consider lingering
doubt in its penalty determination. Not so. (E.g., People v.
Rivera (2019) 7 Cal.5th 306, 346 [“ ‘Although the jurors may
consider lingering doubt in reaching a penalty determination,
there is no requirement under state or federal law that the court
specifically instruct that they may do so’ ”]; People v. Anderson
(2018) 5 Cal.5th 372, 425 [“defendant argues the court should
have instructed on lingering doubt. It did not have to do so”];
People v. Boyce (2014) 59 Cal.4th 672, 708 (Boyce); People v.

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Jackson (2014) 58 Cal.4th 724, 769–770 (Jackson); People v.
Edwards (2013) 57 Cal.4th 658, 765; People v. Thomas (2012)
53 Cal.4th 771, 826 (Thomas); Hartsch, supra, 49 Cal.4th at
pp. 511–512.)
Moreover, no such instruction is necessary when — as
here — the court instructed the jury on section 190.3, factors (a)
and (k) and defense counsel urged the jury to consider residual
doubt in closing argument. (E.g., People v. Reed (2018) 4 Cal.5th
989, 1012–1013; People v. Brooks (2017) 3 Cal.5th 1, 104
(Brooks); Boyce, supra, 59 Cal.4th at pp. 708–709; Jackson,
supra, 58 Cal.4th at p. 770; Thomas, supra, 53 Cal.4th at pp.
826–827; People v. Edwards, supra, 57 Cal.4th at p. 765;
Hartsch, supra, 49 Cal.4th at p. 513; People v. Hines (1997) 15
Cal.4th 997, 1068; People v. Sanchez (1995) 12 Cal.4th 1, 77–78.)
Defendant asks us to reconsider our settled precedent on
these points. He has offered us no persuasive reason to do so.
3. Responses to jury questions
During deliberations, the jury sent the court a number of
questions. Defendant now challenges the court’s answers to four
of those questions.
a. Circumstances of the crime
The first challenge concerns the court’s response to an
inquiry about the circumstances of the crime. In the same
written note, the jury requested both “a definition of ‘an element
of a crime’ as included in the definition of an ‘aggravating
circumstance’ ” and “a definition of ‘circumstances of the crime’
as included in Factor A.” Defendant challenges only the court’s
response to the second question, which he objected to at trial.
The response reads, “ ‘Circumstances of the crime,’ means the
manner in which the crime was committed and the events

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immediately surrounding its commission, as well as those
leading up to and following the commission of the crime. This
includes the harmful impact of the crime on the victim’s family
and friends.”
Defendant contends that the court’s answer was error. In
particular, he argues that the answer was “incomplete” and
“necessarily favored the prosecution” because it “singl[ed] out an
aggravating aspect of the circumstances of the crime” — the
impact of the murder on Niemi’s family and friends. We
disagree.
Under our case law, trial courts are permitted to give
special instructions “pinpointing victim impact evidence as a
circumstance of the crime within the meaning of section 190.3,
factor (a).” (People v. Souza (2012) 54 Cal.4th 90, 138.) For
instance, we found no error regarding an instruction stating,
“ ‘As part of the circumstances of the offense under factor A, you
may also consider the testimony offered in this penalty phase
portion of the trial concerning the impact of the crimes on the
family and friends of the victims.’ ” (Ibid., italics omitted; see
also People v. Harris (2005) 37 Cal.4th 310, 358 [expressing no
disapproval of the instruction, “ ‘[if] supported by the evidence,
it is proper to consider the impact of the murder on the victim’s
family (including their pain and suffering) when determining
the appropriate penalty. You are further instructed that such
evidence is to be included within the meaning of factor (a), the
circumstances of the offenses, in the preceding instruction
(CALJIC No. 8.85) and is not a separate factor in
aggravation’ ”].)
In the context of this case, we do not find that the trial
court’s reference to “the harmful impact of the crime on the

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victim’s family and friends” was improper. To be sure, the
court’s response defining the “circumstances of the crime” may
have been stated in more neutral terms. Contrary to
defendant’s assertion, however, the court did not suggest that
all circumstances of the crime were aggravating. Although the
court told jurors that the circumstances of the crime “include[]
the harmful impact of the crime on the victim’s family and
friends” — an aggravating factor — it also said that the
circumstances of the crime “means the manner in which the
crime was committed and the events immediately surrounding
its commission, as well as those leading up to and following the
commission of the crime.” The response thus conveyed that the
“circumstances of the crime” were not limited to the aggravating
circumstance of “the harmful impact of the crime on the victim’s
family and friends.” More broadly, the court did not equate the
circumstances of the crime with aggravating circumstances.
The court also explained its rationale for mentioning the
effect of the crime on Niemi’s family and friends. The court was
concerned that although the instruction defining “aggravating
circumstance” made clear that an aggravating circumstance
includes “the harmful impact of the crime,”12 the instruction
regarding the various aggravating factors under section 190.3
did not mention such impact. Because the jury had asked both
about “aggravating circumstance” and “circumstances of the
crime,” the court believed that jurors were “specifically

12
See CALCRIM No. 763 [stating in relevant part that “[a]n
aggravating circumstance or factor is any fact, condition, or
event relating to the commission of a crime, above and beyond
the elements of the crime itself, that increases the wrongfulness
of the defendant’s conduct, the enormity of the offense, or the
harmful impact of the crime”].

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wondering” whether the circumstances of the crime “include
victim impact.” The court thus intended its answer regarding
the “harmful impact . . . on the victim’s family and friends” to be
responsive to the jury’s questions.
The court’s other instructions further undermine
defendant’s contention that its response to the jury’s question
prejudicially focused on a single aggravating factor. Using
CALCRIM No. 763, the court instructed jurors that “[u]nder the
law, you must consider, weigh, and be guided by specific factors,
some of which may be aggravating and some of which may be
mitigating.” (Italics added.) The court reiterated this directive
in another instruction, telling the jurors that in reaching a
decision on the appropriate penalty, they “must consider, take
into account, and be guided by the mitigating and aggravating
circumstances.” (CALCRIM No. 766.) Furthermore, each juror
was “free to assign whatever moral or sympathetic value you
find appropriate to each individual factor and to all of them
together.” (Ibid.)
“An appellate court applies the abuse of discretion
standard of review to any decision by a trial court to instruct, or
not to instruct, in its exercise of its supervision over a
deliberating jury.” (People v. Waidla (2000) 22 Cal.4th 690, 745–
746; see also, e.g., People v. Beardslee (1991) 53 Cal.3d 68, 97 [a
court has discretion “to determine what additional explanations
are sufficient to satisfy the jury’s request for information”].) In
light of the deferential standard of review and the complete
answers the court gave, we conclude the court did not abuse its
discretion here.

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b. Quality of the arguments of counsel
The jury next sent a question that reads, “From section
766 (weighing process) can the quality of ‘the arguments of
counsel’ be considered as a mitigating circumstance?” Defense
counsel argued that the answer should be yes because section
190.3 “factor (k) allows basically anything to be considered in
mitigation.” The court rejected the argument as misdirected.
The court ultimately answered the jury’s question as follows:
“In reaching your decision, you must consider and weigh the
aggravating and mitigating circumstance or factors shown by
the evidence. [¶] Statements of counsel are not evidence. [¶]
The answer is: no.” (See also CALCRIM No. 763 [“In reaching
your decision, you must consider and weigh the aggravating and
mitigating circumstances or factors shown by the evidence”];
CALCRIM No. 104 [“ ‘Evidence’ is the sworn testimony of
witnesses, the exhibits admitted into evidence, and anything
else I tell you to consider as evidence. . . . [¶] Nothing that the
attorneys say is evidence.”].)
Defendant appears to reprise the argument raised at trial,
interpreting the question as if the jury had asked whether it
may consider the arguments of counsel in determining penalty.
Yet, even if we treat the jury’s inquiry as having concerned the
content or substance of the arguments, still the court’s response
was unobjectionable. The court did not say that the jury could
not consider counsel’s arguments. Indeed, the court had earlier
instructed the jurors that they “must consider the arguments of
counsel and all the evidence presented during both phases of the
trial.” Counsel’s arguments thus were not irrelevant to the
jury’s penalty deliberations. But there is a difference between
“consider[ing] the arguments of counsel” and treating those
arguments as substantive evidence or viewing them as

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mitigating factors. If, as trial counsel posited, something that
counsel said led the jury “to feel some sympathy, or mercy for
[defendant],” then it is the sympathy or mercy that is mitigative
— not counsel’s skill in evoking those sentiments. The court
instructed the jury accordingly. The court, in its general charge,
told jurors they may “consider sympathy or compassion for a
defendant.” As the court’s subsequent response made clear,
however, statements of counsel are not evidence; nor are they
themselves mitigating factors; and “the quality of ‘the
arguments of counsel’ ” cannot be considered as a mitigating
circumstance.
Defendant’s remaining arguments on this issue are
somewhat elusive. On the one hand, defendant appears to
concede that the trial court was correct “in telling the jury that
arguments are not evidence and cannot be considered as a
mitigating circumstance.” On the other hand, he argues that
the trial court was obligated to supplement its response by
informing jurors that “although counsel argument is not a
mitigating circumstance or factor in and of itself, the jury must
consider counsel’s argument[] and [its] persuasiveness, in other
words, the quality of counsel’s argument[], in determining which
circumstances or factors were mitigating (or aggravating), the
relative weight to assign them in light of the evidence, and the
appropriate penalty.”
We do not find that the jury’s question necessitated this
response. The jury did not intimate — much less say — that
what it wanted to know was (as defendant puts it) whether it
must “consider counsel’s arguments and their persuasiveness
. . . in determining which circumstances or factors were
mitigating (or aggravating), the relative weight to assign them
in light of the evidence, and the appropriate penalty.” The jury

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simply asked whether it may consider the quality of counsel’s
arguments as a mitigating circumstance, and the court directly
answered that question.
Finally, by not offering this more fulsome proposed
response at trial, defendant has forfeited the claim. (See Dykes,
supra, 46 Cal.4th at p. 802 [“When the trial court responds to a
question from a deliberating jury with a generally correct and
pertinent statement of the law, a party who believes the court’s
response should be modified or clarified must make a
contemporaneous request to that effect; failure to object to the
trial court’s wording or to request clarification results in
forfeiture of the claim on appeal”].)
c. “Maturely and meaningfully reflected”
The jury subsequently asked, “From the definition of first
degree murder, what does ‘maturely and meaningfully reflected
upon the gravity of his act’ mean? [¶] What is the definition of
‘maturely,’ in the above? What is the definition of
‘meaningfully,’ in the above?” After an off-the-record
conversation with counsel, the court answered the jury’s
question as follows: “As I instructed you on Monday, you must
disregard all of the instructions I gave you in the earlier phase
of the trial, and follow only the new instructions given in this
phase of trial. [¶] The new instructions do not include the
instruction regarding ‘mature and meaningful reflection.’ ”
The court thereafter had an on-the-record discussion with
the parties regarding its answer. The court asked defense
counsel if counsel had “a position” on the answer it sent to the
jury. Counsel indicated she “concurred” with the court’s reply.
Defendant now contends that by giving the jury the
answer it did, the court led the jury to believe that it could not

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consider whether defendant maturely and meaningfully
deliberated on the gravity of his act in determining the
appropriate penalty. Specifically, defendant now claims that
the court’s answer precluded the jury from considering
defendant’s “ ‘culpable mental state’ ” under section 190.3,
factor (a); his intoxication under factor (h); his age under factor
(i); or any catchall extenuating circumstance under factor (k).
To the extent that the claim was not forfeited by failure to
object below (see Dykes, supra, 46 Cal.4th at p. 802), defendant
misreads the jury’s question and the court’s answer. The jury
did not inquire whether mature and meaningful deliberation
regarding the gravity of one’s act was relevant to the jury’s
decision to impose life or death. Nor did the court make any
suggestion on that score. Rather, the jury asked for the meaning
of “maturely and meaningfully reflected upon the gravity of his
act” — a phrase that was not part of the penalty phase
instructions. The court declined to give the jury the definitions
it requested, instead reminding jurors that the instructions did
not include this language.13 Defendant does not claim that the
penalty phase instructions were incomplete, and the court did
not abuse its discretion in answering the jury’s question as it
did. (Accord, Dykes, supra, 46 Cal.4th at p. 802 [“The court is
under a general obligation to ‘clear up any instructional
confusion expressed by the jury,’ but ‘[w]here . . . the original

13
If anything, the directive to disregard the guilt phase
instructions benefitted defendant because the particular
instruction at issue informed the jury that mature and
meaningful reflection was irrelevant to premeditation and
deliberation. (See § 189, subd. (d).) Omitting that instruction
at the penalty phase arguably broadened the scope of relevant
mitigating circumstances.

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instructions are themselves full and complete, the court has
discretion . . . to determine what additional explanations are
sufficient to satisfy the jury’s request for information’ ”].)
Defendant further argues that because the court had
“inserted the concept [of mature and meaningful reflection upon
the gravity of one’s act] into the guilt phase,” it had a duty to
define the meaning of that phrase “when the jury re-raised the
issue at penalty.” We fail to see the connection.
A “trial court bears the responsibility of instructing the
jury on all the general principles of law raised by the evidence
which are necessary for the jury’s proper understanding of the
case.” (People v. Murtishaw (1989) 48 Cal.3d 1001, 1022
(Murtishaw).) Yet the court’s instruction at the guilt phase did
not render the concept of mature and meaningful reflection any
more “necessary for the jury’s proper understanding of the case”
at the penalty phase. (Ibid.) As the Attorney General points
out, at the penalty phase, the jury was not required to determine
whether defendant’s conduct and the surrounding
circumstances “evinced mature and meaningful reflection.”
Rather, the jury was required to “consider and weigh the
aggravating and mitigating circumstances or factors shown by
the evidence” and to determine if “the aggravating
circumstances both outweigh the mitigating circumstances and
are so substantial in comparison to the mitigating
circumstances that a sentence of death is appropriate and
justified.” To the extent defendant’s mature and meaningful
reflection on the gravity of his act (or the lack thereof) was
relevant to the jury’s “proper understanding of the case,” it is
only because such reflection may have some bearing on the
aggravating and mitigating factors. (Murtishaw, supra,
48 Cal.3d at p. 1022.) Because the jury was properly instructed

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on those factors, however, the court was not required to define
“mature” and “meaningful” reflection.
The cases defendant cites do not assist him. In People v.
Miller (1981) 120 Cal.App.3d 233, 235–236, the defendant was
charged with assault by means of force likely to produce great
bodily injury, and the jury asked for a definition of “great bodily
injury.” In People v. Solis (2001) 90 Cal.App.4th 1002, 1012–
1013, the defendant was charged with making terrorist threats,
one of the elements of which was “ ‘ “[t]he threatening statement
caused the other person reasonably to be in sustained fear for
her own safety,” ’ ” and the jury requested an explanation on the
word “sustained.” These cases thus “involve situations where
the jury’s request for clarifying instructions was pertinent to an
issue the jury was directly required to decide.” (Murtishaw,
supra, 48 Cal.3d at p. 1024.) As such, they are “inapposite.”
(Ibid.)
Finally, if the jury was inclined to consider whether
defendant maturely and meaningfully reflected upon the gravity
of his act, it could do so at least under section 190.3, factor (k).
As noted, the court instructed the jury with this catchall factor,
which permitted jurors to take into account “[a]ny other
circumstance which extenuates the gravity of the crime.”
(§ 190.3, factor (k).) And within its response to the question at
hand, the court reminded the jury that it was to follow “the new
instructions given in this phase of trial,” which included the
factor (k) instruction. Insofar as defendant arguably lacked
mature and meaningful reflection and the absence of such
reflection “extenuates the gravity of the crime,” therefore, the
jury was free to consider that mitigating circumstance under the
court’s penalty phase instructions. (Ibid.)

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d. Lack of prior felony convictions
The last of defendant’s challenges regarding the court’s
answers to jurors concerned three questions that the jury
submitted on the same afternoon. The jury first asked, “Did the
People and defense stipulate no previous felony convictions?”
The court answered, “There is no evidence of prior felony
convictions. You must therefore assume there are none.” The
jury next queried, “Must we dismiss [section 190.3,] factor (c)
due to the lack of evidence of other felony convictions?” The
court responded, “You may attach whatever significance you
find appropriate to the lack of evidence of a prior felony
conviction under factor (c).” Lastly, the jury asked, “Must a
circumstance to be considered for ‘factor k’ (763 Factors to
Consider) be supported by evidence (222 Evidence)?” The court
eventually answered, in writing:
“Factor (k) includes two categories of things you may
consider in making your decision:
(1) Sympathy or compassion for the defendant;
and
(2) Anything you consider to be a mitigating
factor, regardless of whether it is one of the
other listed factors.
“I assume your question related to the second of
these two categories — mitigating circumstances or
factors.
“As I told you at the beginning of Instruction 763,
you must consider and weigh the aggravating and
mitigating circumstances or factors shown by the
evidence.”
Defendant argues that the court’s responses likely misled
the jury into believing that it could not consider defendant’s lack
of prior felony convictions as a mitigating factor. According to

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defendant, because the court (1) emphasized in the answer to
the third question (regarding factor (k)) that jurors “must
consider and weigh the aggravating and mitigating
circumstances or factors shown by the evidence” while
(2) simultaneously informing jurors (regarding factor (c)) that
“[t]here is no evidence of prior felony convictions,” the court
effectively told jurors that they could not consider defendant’s
“clean record,” in light of the fact that there was no affirmative
documentation about his lack of convictions. The court
compounded the problem, defendant asserts, by refusing trial
counsel’s proffer that “the lack of felony convictions is a
mitigating circumstance,” and instead telling the jury that it
“may attach whatever significance you find appropriate to the
lack of evidence of a prior felony conviction under factor (c).”
We reject defendant’s argument, finding no reasonable
likelihood that “the jury misunderstood and misapplied the
instruction[s]” in the manner suggested. (Smithey, supra,
20 Cal.4th at p. 963.) First, the trial court did not merely inform
the jurors that “[t]here is no evidence of prior felony
convictions.”14 The court instead told the jury the inference it
must draw from that dearth of evidence: Jurors “must . . .
assume there are no[]” felony convictions. Given the court’s
instruction, there is little reason to believe that the jury did
anything other than take it as given that defendant had no
felony convictions. Along the same lines, the court’s statement
that jurors were free to “attach whatever significance you find
appropriate to the lack of evidence of a prior felony conviction
under [section 190.3,] factor (c)” undermines the contention that

14
Defense counsel did not object to this answer.

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jurors thought they could not afford any weight to defendant’s
“clean record” due to the lack of supporting evidence.
Second, both the prosecution and defense addressed
defendant’s lack of felony convictions — and neither suggested
that the jury disregard such a circumstance because of the
absence of documentation. (Accord, Young, supra, 34 Cal.4th at
p. 1202.) The defense, predictably, urged the jury to consider
the fact that defendant had “no prior felonies, not one” as “a
mitigating factor.” But even the prosecutor admitted that
section 190.3, factor (c) was a mitigating circumstance in
defendant’s case, although he sought to minimize the impact of
the factor, calling it only “slightly mitigating.” According to the
prosecutor, the absence of prior felonies in defendant’s case was
“not a major factor” — not because it has not been proved — but
because defendant had not been “an adult for all that long” to
accumulate such convictions.
We conclude the trial court’s answer was not an abuse of
discretion.
e. Constitutional claims
Finally, defendant argues that the trial court’s responses
violated the federal Constitution. For the same reasons that we
have found no state law error, we perceive no constitutional
infirmity with the court’s answers. Considered singly or
collectively, there was no reasonable probability that, as
defendant claims, the court’s statements “hindered the jury
from considering and giving effect to [defendant’s] mitigation,”
“confer[ed] an unfair advantage on the prosecution,” or “denied
[defendant] representation by counsel at a critical state of the
sentencing trial.” (Accord, e.g., People v. Dalton (2019) 7 Cal.5th
166, 208 [“ ‘ “[n]o separate constitutional discussion is required,

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or provided, when rejection of a claim on the merits necessarily
leads to rejection of [the] constitutional theory” ’ ”].)
4. Constitutionality of California death penalty law
Defendant raises a series of challenges to the
constitutionality of California’s death penalty scheme. We have
consistently rejected such arguments and continue to do so here
because defendant has given us no new reason to revisit our
precedents.
“The special circumstances listed in section 190.2 that
render a murderer eligible for the death penalty . . . are not so
numerous and broadly interpreted that they fail to narrow the
class of death-eligible first degree murderers as required by the
Eighth and Fourteenth Amendments.” (Brooks, supra, 3 Cal.5th
at pp. 114–115.)
“Section 190.3, factor (a), which permits the jury to
consider the circumstances of the capital crime in its penalty
determination, does not license the jury to impose death in an
arbitrary and capricious manner in violation of the United
States Constitution.” (People v. Powell (2018) 5 Cal.5th 921, 963
(Powell).)
“The California death penalty scheme is not
constitutionally defective because it fails to require jury
unanimity on the existence of aggravating factors, or because it
fails to require proof beyond a reasonable doubt that death is
the appropriate penalty, that aggravating factors exist, or that
aggravating factors outweigh mitigating factors. (People v.
Lynch (2010) 50 Cal.4th 693, 766 [114 Cal.Rptr.3d 63, 237 P.3d
416].) The United States Supreme Court’s decisions
interpreting the right to a jury trial under the federal
Constitution (see Blakely v. Washington (2004) 542 U.S. 296

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[159 L.Ed.2d 403, 124 S.Ct. 2531]; Ring v. Arizona (2002) 536
U.S. 584 [153 L.Ed.2d 556, 122 S.Ct. 2428] do not change these
conclusions.” (Thomas, supra, 53 Cal.4th at p. 835, see also
People v. Rangel (2016) 62 Cal.4th 1192, 1235.)
“No burden of proof is constitutionally required, and the
jury need not be instructed that there is no burden of proof.”
(Thomas, supra, 53 Cal.4th at p. 836.)
“The jury’s reliance on unadjudicated criminal activity as
a factor in aggravation under section 190.3, factor (b), without
any requirement that the jury unanimously find that the
activity was proved beyond a reasonable doubt, does not deprive
a defendant of any federal constitutional rights, including the
Sixth Amendment right to trial by jury and the Fourteenth
Amendment right to due process.” (Brooks, supra, 3 Cal.5th at
p. 115.)
CALCRIM No. 766’s use of the phrase “so substantial,”
like CALJIC No. 8.88’s use of that same phrase, “ ‘is not
impermissibly vague or ambiguous.’ ” (People v. Potts (2019)
6 Cal.5th 1012, 1061 (Potts).)
There is no constitutional requirement “to instruct that if
the mitigating circumstances outweigh the aggravating
circumstances, the jury must impose a sentence of life without
parole.” (Boyce, supra, 59 Cal.4th at p. 724.)
“Defendant was not entitled to an instruction that there is
a presumption in favor of life without parole.” (Boyce, supra,
59 Cal.4th at p. 724.)
“The jury need not make written findings.” (Thomas,
supra, 53 Cal.4th at p. 836.)

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Section 190.3’s use of adjectives such as “extreme” and
“substantial” in factors (d) and (g) does not “act as a barrier to
the jury’s consideration of mitigating evidence, in violation of
constitutional commands.” (Powell, supra, 5 Cal.5th at p. 964.)
“A trial court is not required to delete inapplicable
mitigating factors, nor to identify whether factors are mitigating
or aggravating.” (Potts, supra, 6 Cal.5th at p. 1061.)
Neither is intercase proportionality review required.
(Thomas, supra, 53 Cal.4th at p. 836.)
“The failure to afford capital defendants at the penalty
phase the same procedural safeguards afforded to noncapital
defendants does not offend equal protection principles, because
the two groups are not similarly situated.” (Powell, supra,
5 Cal.5th at p. 964.)
“California does not regularly use the death penalty as a
form of punishment, and ‘its imposition does not violate
international norms of decency . . . .’ ” (Brooks, supra, 3 Cal.5th
at p. 116.)
5. Asserted cumulative effect of alleged errors
Defendant urges us to set aside the death judgment
because of the purported cumulative effect of alleged errors
occurring at the guilt and penalty phase. We find no cumulative
effect of any purported errors.
6. Imposition of restitution fine
a. Background
The judgment against defendant includes a $10,000
restitution fine imposed pursuant to section 1202.4. In levying
the fine, the trial court considered the probation report. The
report noted defendant’s employment history, the fact that he

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“denied owning any assets,” and the factors in aggravation and
mitigation. The report ultimately recommended that “[i]n
keeping with the very serious nature of the offense, . . .
defendant pay a restitution fine of $10,000.”
The probation report also recommended that defendant be
ordered to pay a $250 probation investigation fee. The report
expressly noted that “defendant has the ability to pay [this fee].”
Although trial counsel objected to the imposition of the
probation investigation fee as well as a $20 court security fee,
defendant does not challenge these fees before us.
Defendant does challenge the restitution fine. When the
trial court announced its intention to impose that fine in
accordance with the probation report’s recommendation,
defense counsel objected. “We would object to any fine,” said
counsel, “in view of Mr. Ramirez’s inability to work or have any
money from this point onward.” The court responded, “I
understand. Interestingly enough, the code expressly says that
inability to pay is not a ground for not making the order, and —
but I’m going to. I’m making the order.”
b. Analysis
At the time of defendant’s trial, the Penal Code provision
governing restitution — section 1202.4 — operated as follows.
Section 1202.4, subdivision (b) specified that in every case in
which a person is convicted of a felony, the court shall impose a
restitution fine “unless it finds compelling and extraordinary
reasons for not doing so.” (§ 1202.4, former subd. (b)(1).) In
addition, the amount of the fine “shall be set at the discretion of
the court and commensurate with the seriousness of the
offense,” although the fine cannot be less than $200 or more than
$10,000. (Ibid.) Former subdivision (c) then specified that “[a]

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defendant’s inability to pay shall not be considered a compelling
and extraordinary reason not to impose a restitution fine” and
“[i]nability to pay may be considered only in increasing the
amount of the restitution fine in excess of the two hundred-
dollar ($200) . . . minimum.” Former subdivision (d) further
focused on the amount of restitution and stated:
“In setting the amount of the fine pursuant to
subdivision (b) in excess of the two hundred-dollar
($200) . . . minimum, the court shall consider any
relevant factors including, but not limited to, the
defendant’s inability to pay, the seriousness and
gravity of the offense and the circumstances of its
commission, any economic gain derived by the
defendant as a result of the crime, the extent to
which any other person suffered any losses as a
result of the crime, and the number of victims
involved in the crime. Those losses may include
pecuniary losses to the victim or his or her
dependents as well as intangible losses, such as
psychological harm caused by the crime.
Consideration of a defendant’s inability to pay may
include his or her future earning capacity. A
defendant shall bear the burden of demonstrating
his or her inability to pay. Express findings by the
court as to the factors bearing on the amount of the
fine shall not be required.”
In other words, in setting the amount of a restitution fine, the
trial court must select an amount that reflects “the seriousness
of the offense,” and it must consider a host of factors — including
a defendant’s ability to pay — if it sets the fine above the
minimum of $200. (§ 1204.4, former subd. (b)(1); see id., former
subd. (d).) The mere inability to pay, however, is not a reason
to forgo a fine altogether. (§ 1204.4, former subd. (c).)

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Defendant asserts that the trial court’s restitution order
violated both section 1204.4 and his federal and state
constitutional rights. His premise is that the court did not
consider his inability to pay in setting the restitution fine at
$10,000.
We cannot say on this record that the trial court failed to
follow established law by refusing to consider defendant’s ability
to pay before imposing a fine above the minimum amount. As
discussed, section 1202.4 required judges to consider “the
defendant’s inability to pay” whenever they set a restitution fine
“in excess of the minimum fine.” (§ 1204.4, subd. (d).) Absent
evidence to the contrary, we presume that the trial court knew
the law and followed it. (See, e.g., People v. Thomas (2011)
52 Cal.4th 336, 361 [“In the absence of evidence to the contrary,
we presume that the court ‘knows and applies the correct
statutory and case law’ ”]; Ross v. Superior Court of Sacramento
County (1977) 19 Cal.3d 899, 913–914.)
In this case, there is affirmative evidence indicating that
the trial court knew that defendant’s ability to pay was a factor
in determining the fine to be imposed. First, the court
considered and referred to the probation report. Because the
report summarized defendant’s financial position, stated he had
the ability to pay a $250 probation investigation fee, and
recommended that he pay a $10,000 restitution fee, it at least
implicitly conveyed that defendant’s ability to pay was a
relevant consideration. Second, the court heard the defense
argument, which was that defendant should not have to pay
“any fine” “in view of [his] inability to work or have any money
from this point onward.” The court thereafter indicated that it
“underst[ood]” the argument. None of this suggests that the

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

court did not take into consideration defendant’s financial
wherewithal in deciding to impose a $10,000 fine.
Defendant asks us to disregard all the above and instead
focus on a single comment the court made. According to
defendant, the trial court “plainly stated that it would not
consider inability to pay” when it remarked, “[T]he code
expressly says that inability to pay is not a ground for not
making the order, and — but I’m going to. I’m making the
order.” As the Attorney General points out, however, the court’s
statement is a correct statement of law insofar as the court was
noting that a defendant’s inability to pay is not a legitimate
basis to forgo imposition of any fine. (See § 1202.4, former subd.
(c) [“A defendant’s inability to pay shall not be considered a
compelling and extraordinary reason not to impose a restitution
fine. Inability to pay may be considered only in increasing the
amount of the restitution fine in excess of the two hundred-
dollar . . . minimum”]; id., former subd. (d).) Because the court’s
comment immediately followed counsel’s objection to the
imposition of “any fine,” we find the Attorney General’s
interpretation plausible. Alternatively, the court might have
meant that although “the code expressly says that inability to
pay is not a ground for not making the order,” it was “going to”
consider that ground because it was “making the order” that
defendant pay more than the minimum. Either of these
interpretations would defeat defendant’s contention that the
court openly declared it was not going to consider ability to pay.
At the very least, defense counsel has not made a record
sufficient for us to conclude that the trial judge, which referred
to what “the code expressly says,” failed to heed the code’s plain
requirement to consider ability to pay.

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

In sum, the court’s comment — even if open-ended — does
not persuade us that the presumption has been overcome that
trial judges understand and follow established law. Beyond this
comment, defendant has not identified “anything in the record
indicating the trial court breached its duty to consider his ability
to pay.” (People v. Gamache (2010) 48 Cal.4th 347, 409.) “[A]s
the trial court was not obligated to make express findings
concerning his ability to pay, the absence of any findings does
not demonstrate it failed to consider this factor. Thus, we
cannot say on this record that the trial court abused its
discretion.” (Ibid.; see also People v. Miracle (2018) 6 Cal.5th
318, 356 [same]; People v. Nelson (2011) 51 Cal.4th 198, 227
[same].)
Because the factual premise underlying defendant’s
argument fails, we reject the claims that the trial court violated
either statutory or constitutional law in assertedly not
considering defendant’s ability to pay.15
III. DISPOSITION
For the preceding reasons, we affirm the judgment in its
entirety.

15
We recently granted review in People v. Kopp (review
granted Nov. 13, 2010, S257844) to decide certain issues
relating to a defendant’s ability to pay fines, fees, and
assessments. Defendant may seek any relief to which he may
be entitled after we decide People v. Kopp.

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

CANTIL-SAKAUYE, C. J.

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

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

87
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Ramirez
_________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________

Opinion No. S155160
Date Filed: January 28, 2021
__________________________________________________________________________________

Court: Superior
County: Alameda
Judge: Jon R. Rolefson

__________________________________________________________________________________

Counsel:

Michael J. Hersek and Mary K. McComb, State Public Defenders, under appointments by the Supreme
Court, and Maria Morga, Deputy State Public Defender, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler and Lance E. Winters, Chief
Assistant Attorneys General, Ronald S. Matthias, Assistant Attorney General, Glenn R. Pruden, Sarah J.
Farhat and Elizabeth W. Hereford, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Maria Morga
Deputy State Public Defender
1111 Broadway, 10th Floor
Oakland, CA 94607-4139
(510) 267-3300

Elizabeth W. Hereford
Deputy Attorney General
455 Golden Gate Ave., Suite 11000
San Francisco, CA 94102-7004
(415) 510-3801