People v. Steskal

IN THE SUPREME COURT OF
CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
v.
MAURICE GERALD STESKAL,
Defendant and Appellant.

S122611

Orange County Superior Court
99ZF0023

April 29, 2021

Justice Kruger authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Corrigan, Liu,
Cuéllar, Groban, and Jenkins concurred.
 PEOPLE v. STESKAL
S122611

Opinion of the Court by Kruger, J.

A jury convicted defendant Maurice Gerald Steskal of the
first degree murder of Orange County Deputy Sheriff Bradley J.
Riches. (Pen. Code, § 187.) The jury found true a special
circumstance allegation that Steskal intentionally killed a peace
officer engaged in the performance of his duties (id., § 190.2,
subd. (a)(7)), as well as an allegation that Steskal personally
used a firearm in the commission of the offense (id., former
§§ 12022.5, subd. (a), 12022.53, subd. (d)). The trial court
declared a mistrial when the jury was unable to reach a penalty
verdict. After a penalty retrial, the jury returned a verdict of
death. This appeal is automatic. (Cal. Const., art. VI, § 11,
subd. (a); Pen. Code, § 1239, subd. (b).) We affirm the judgment.
I. BACKGROUND
A. Guilt Phase
1. Prosecution evidence
On the night of June 11, 1999, Steskal was seen near the
residence of his wife, Nannette Steskal, from whom he was then
separated.1 Close to midnight, a neighbor of Nannette’s heard
a commotion in their apartment complex. The neighbor then
saw Steskal outside smashing a piece of furniture against the

1
Given Nannette and Maurice Steskal’s identical
surnames, we will refer to Nannette by her first name for clarity.
No disrespect is intended.

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wall and heard him slam a gate while cursing at the world and
screaming that he hated everyone. The neighbor heard a
woman trying to calm him. Steskal responded, “Fuck that, I
have guns, I have ammunition.”
Shortly after midnight, Steskal went into a 7-Eleven
convenience store carrying a semiautomatic rifle. As he
purchased cigarettes, he asked the clerk if she was afraid of his
gun and told her it was to protect himself from the “fucking law.”
An Orange County Sheriff’s Department (OCSD) deputy,
Bradley Riches, drove by the 7-Eleven in his patrol car while
Steskal was inside. Apparently seeing Steskal’s rifle through
the glass front of the store, Deputy Riches doubled back while
issuing a radio alert for other deputies to stand by. As Steskal
completed his purchase, Deputy Riches pulled into the 7-Eleven
parking lot with his overhead lights flashing. The clerk watched
as Steskal walked out of the store and immediately began firing
his rifle. Steskal shot Deputy Riches at close range, firing 30
rounds in total, then returned to his car and drove away. When
first responders arrived on the scene, they found Deputy Riches
still seated in his car. It appeared he had unsnapped his holster
but had been unable to pull his revolver before succumbing to
his wounds.
A criminalist testified about the bullet casings and other
evidence found at the crime scene, identified photographs
showing damage to the patrol car, and explained her efforts to
determine the trajectory of the shots fired. The criminalist
identified a photograph of Deputy Riches’s body at the hospital
and a pathologist described Deputy Riches’s numerous injuries.
An OCSD sergeant testified that the 7-Eleven where Deputy
Riches had been killed was one of the few convenience stores
open 24 hours a day and was therefore a regular meeting place
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Opinion of the Court by Kruger, J.

for patrol deputies.
OCSD deputies apprehended Steskal a few hours after the
crime as he and Nannette drove away from her apartment. In
Steskal’s car, deputies found over one hundred rounds of
ammunition and a disassembled rifle later identified as the
weapon used in the shooting. A blood screen found no drugs or
alcohol in Steskal’s system.
Steskal had other encounters with law enforcement in the
months before Deputy Riches was killed. Approximately two
and one-half months before the crime, a different OCSD deputy,
Andre Spencer, stopped Steskal for a traffic violation and
arrested him for possession of a small amount of marijuana and
resisting an officer in the performance of official duties. During
the stop, Deputy Spencer saw Steskal pound his hands on his
steering wheel and became alarmed when Steskal exited his
vehicle. Deputy Spencer drew his gun on Steskal, summoned
additional deputies, and searched Steskal’s pants and shoes for
contraband. Deputy Spencer stopped Steskal for another traffic
violation one month later. Deputy Spencer reminded Steskal to
take care of his prior tickets and ended the stop without
incident.
2. Defense evidence
Steskal did not deny shooting Deputy Riches, but
presented evidence intended to show that he was acting under a
delusional fear when it occurred. Steskal’s sister and a variety
of acquaintances testified that Steskal had been paranoid for
many years and was particularly occupied by thoughts that law
enforcement and government actors were following him and
wished him harm. He had long kept an assault rifle that he
slept with and carried with him everywhere. For most of his

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adult life, Steskal lived apart from others — on the roof of a shop
where he worked, in a van, and in a small concrete bunker on
an abandoned mining site owned by his brother-in-law. Even
when living far from others, Steskal believed bad actors were
seeking him out: He worked on an escape route from his bunker,
wearing down a pickaxe as he tried to make a tunnel through
granite, and ran through the woods looking for pursuers with
blackberry juice rubbed on his skin to provide camouflage. In
the months before the crime, Steskal spent much of his time
living in a remote mountain camp. Although he was separated
from his wife, he sometimes stayed with her. He believed her
apartment was wiretapped and felt he was being monitored
through her television. He was depressed and often talked
about suicide.
The lay witnesses observed that Steskal’s mental health
deteriorated significantly after the two traffic stops conducted
by Deputy Spencer: Steskal became even more consumed with
thoughts that he was under surveillance and in danger; believed
OCSD deputies were going to kill him; and made serious
attempts at suicide. He also grew more distraught about his
failed marriage.
Four defense experts detailed Steskal’s family
dysfunction, physical abuse from his parents and siblings,
difficulties in school, drug use, and history of suicidal thinking,
suspiciousness, and peculiar ideas. The defense psychiatrist,
Dr. Roderick Pettis, concluded that Steskal suffered from
chronic paranoia that had progressed to full-blown psychosis
after the traffic stops by Deputy Spencer — Steskal went from
feeling the police were following him to fearing they would kill
him. Dr. Pettis testified that at the time of the crime, Steskal
was in a psychotic state and suffering from a delusional
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disorder.
B. Penalty Phase
The prosecution presented evidence of an incident that
occurred 19 years before the crime, in which Steskal
intentionally drove his motorcycle at high speed toward a police
officer who had stopped him for speeding. Steskal nearly hit the
officer. Deputy Riches’s parents, Bruce and Meriel Riches,
testified about their son’s hard work, his desire to help others,
and how they responded to his death.
The defense presented witnesses who described Steskal’s
kindness to others and an additional expert who summarized
Steskal’s background and testified that Steskal suffered from a
delusional disorder, chronic depression, and schizotypal
personality disorder, a personality disorder on a continuum with
schizophrenia.
The trial court declared a mistrial after the jury
deadlocked 11 to one in favor of life without the possibility of
parole.
C. Penalty Retrial
During the penalty retrial, the prosecution introduced
much of the same evidence that was presented at the guilt
phase. Witnesses described Steskal’s behavior just before the
crime, at the 7-Eleven, and during his arrest. The prosecution
presented new evidence to show that Steskal attempted to
destroy the T-shirt he was wearing during the crime, as well as
evidence that Steskal shaved his moustache immediately after
the shooting. In addition to the first responders and criminalists
from the sheriff’s department who had testified in the guilt
phase, a paramedic testified for the first time about his efforts
to save Deputy Riches’s life and the moment of his death. The

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pathologist described Deputy Riches’s injuries with the
assistance of a life-sized mannequin that was pierced with rods
to show the bullet wounds.
The prosecution again introduced as aggravating evidence
Steskal’s behavior during the motorcycle stop, as well as new
evidence of his attempted escape from jail before the penalty
retrial. The prosecution presented evidence that Steskal had
accumulated contraband metal clippers and scraped away a
portion of his cell wall that abutted a ventilation system leading
to the roof of the jail. Steskal had also hidden strips of bedsheets
in his mattress that were long enough to lower him from the roof
of the jail to the street.
The prosecution again introduced victim impact evidence
from Deputy Riches’s parents, as well as testimony from Deputy
Riches’s best friend and three colleagues from the sheriff’s
department who described his positive outlook and loyalty. The
witnesses conveyed the loss they and their families experienced
when Deputy Riches was murdered.
The defense also largely mirrored the guilt phase, with
identical evidence depicting Steskal’s background, his
deteriorating mental health, and expert opinions regarding his
condition. Steskal’s brother and sister testified in greater detail
about the physical and emotional abuse Steskal experienced in
childhood and his suicide attempt at age 13. Acquaintances
described his kindness; Steskal’s niece described him as a father
figure who provided regular encouragement and support
through correspondence from jail.
On rebuttal, the prosecution presented testimony from
three officers who interacted with Steskal while he was in jail
awaiting the penalty retrial and who found no indication he

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experienced mental health problems. The prosecution also
introduced evidence of an incident that took place 11 years
before the crime, in which Steskal was driving erratically and
dropping clear plastic bags out of his vehicle before an OCSD
deputy stopped him. During the stop, Steskal appeared to be
under the influence of drugs or alcohol, would not provide his
name, and repeatedly yelled that he wanted the deputy to shoot
him.
II. DISCUSSION
A. Guilt Phase Issues
1. Refusal to instruct the jury on voluntary
manslaughter
Steskal raises numerous claims of error. He first claims
the trial court erred by denying his request to instruct the jury
on voluntary manslaughter based on a theory of imperfect self-
defense — that is, a theory that Steskal actually, though
unreasonably, believed his life was in danger when he shot
Deputy Riches. The trial court denied the request because the
evidence did not support giving the instruction. We find no error
in the court’s ruling.
a. Background
At trial, Steskal called several witnesses who described
Steskal’s attitudes toward law enforcement and their causes,
including, primarily, Steskal’s experiences during the two traffic
stops conducted by Deputy Spencer. A retired Los Angeles
Police Department tactics officer testified that Deputy Spencer’s
arrest of Steskal after a traffic stop some months before the
crime was highly unprofessional. During the stop, Deputy
Spencer drew his gun on Steskal, cursed at and disparaged him,
called additional officers to the scene, unfastened Steskal’s

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pants, and searched inside his underwear. Deputies wrestled
Steskal to the ground when he began to protest the treatment.
The second stop by Deputy Spencer occurred when Steskal
allegedly failed to signal a turn, though there was some factual
dispute as to whether the stop was justified on that ground; one
witness claimed that Steskal had, in fact, signaled.
Three witnesses saw Steskal in April 1999, soon after the
second traffic stop. One testified that Steskal was nervous about
being stopped by the police again; another found Steskal was
very fearful of the police and convinced he was under
surveillance; and the third recounted Steskal’s belief the police
would kill him. A witness who saw Steskal in June, just before
the crime, testified that Steskal was distraught about his failing
marriage and continued to believe the police were following him.
Dr. Roderick Pettis, the defense psychiatrist, testified that
after the traffic stops, Steskal experienced psychotic delusions
about being killed by law enforcement officers and withdrew to
a camp in the mountains. Steskal was suicidal the day before
the crime, when he had to return to town for legal proceedings
related to his traffic stop. Dr. Pettis explained that Steskal’s
screaming and banging at the apartment complex was evidence
that his despair and stress had reached extreme levels. On
cross-examination, Dr. Pettis acknowledged a report of
statements from Steskal’s wife, who told investigators that
immediately after the crime, Steskal exclaimed to her, “ ‘Oh, my
God, what did I do, why did I do that?’ ” He confessed to shooting
Deputy Riches, saying, “ ‘I don’t know why I shot him.’ ”
Dr. Pettis testified that the report did not alter his opinion that
Steskal was experiencing significant fear and distress before the
shooting.

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A police psychologist described a “fight or flight” response,
an automatic and sometimes unconscious reaction to danger.
He explained such a response was more likely to occur in
individuals who experience paranoia and could account for
responses to fear that involved excessive violence.
Based on this evidence, defense counsel requested that the
trial court instruct the jury on voluntary manslaughter, as well
as imperfect self-defense, on a theory that Steskal actually but
unreasonably believed he had to shoot Deputy Riches in order
to defend himself. The trial court denied the request on the
ground that the evidence did not support giving the instruction.
The court concluded that Steskal’s outburst at the apartment
complex just before the shooting and his comments to the store
clerk reflected anger rather than fear. Although there was
evidence Steskal feared OCSD deputies generally, the court
found no evidence he harbored a specific belief, real or imagined,
that Deputy Riches posed an imminent threat at the time of the
shooting, as would be required to establish imperfect self-
defense. The court also found that by carrying a semiautomatic
weapon into the 7-Eleven, Steskal himself created the
circumstances of the shooting and was not entitled to invoke the
doctrine of imperfect self-defense in any event.
b. Discussion
“A trial court must instruct on all lesser included offenses
supported by substantial evidence.” (People v. Duff (2014) 58
Cal.4th 527, 561.) Although instruction on a lesser included
offense “is not required when the evidence supporting such an
instruction is weak” (People v. Vargas (2020) 9 Cal.5th 793, 827)
or based on speculation (People v. Westerfield (2019) 6 Cal.5th
632, 718), it is required when the lesser included offense is

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supported by “ ‘evidence that a reasonable jury could find
persuasive’ ” (People v. Lewis (2001) 25 Cal.4th 610, 645).
“ ‘Doubts as to the sufficiency of the evidence to warrant
instructions should be resolved in favor of the accused.’ ” (People
v. Flannel (1979) 25 Cal.3d 668, 685; see also People v. Turner
(1990) 50 Cal.3d 668, 690.) We review independently whether
the trial court erred in rejecting an instruction on a lesser
included offense. (People v. Booker (2011) 51 Cal.4th 141, 181.)
Voluntary manslaughter — an unlawful killing without
malice — is a lesser included offense of murder, an unlawful
killing with malice aforethought. (People v. Booker, supra, 51
Cal.4th at p. 181.) “Imperfect self-defense, which reduces
murder to voluntary manslaughter, arises when a defendant
acts in the actual but unreasonable belief that he is in imminent
danger of death or great bodily injury.” (People v. Duff, supra,
58 Cal.4th at p. 561.) “To satisfy the imminence requirement,
‘[f]ear of future harm — no matter how great the fear and no
matter how great the likelihood of the harm — will not suffice.
The defendant’s fear must be of imminent danger to life or great
bodily injury.’ ” (People v. Trujeque (2015) 61 Cal.4th 227, 270.)
Steskal argues that evidence of his delusional fear of
OCSD deputies supported an inference that he perceived
imminent danger when Deputy Riches arrived at the 7-Eleven.
The Attorney General asserts that this claim is precluded by
People v. Elmore (2014) 59 Cal.4th 121, in which we held that
“purely delusional perceptions of threats to personal safety
cannot be relied upon to claim unreasonable self-defense,” as
opposed to claiming legal insanity. (Id. at pp. 138–139; see id.
at p. 141.) Steskal counters that his perception was not “ ‘purely
delusional’ ” (id. at p. 138) because he did accurately perceive
that Deputy Riches was a law enforcement officer, though his
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reaction to that fact was distorted by mental illness. We need
not resolve this debate because, as the trial court correctly
concluded, the evidence provided no substantial support for a
claim that Steskal acted out of any fear of imminent peril,
whether delusional or not.
Steskal did present evidence of his ongoing fear of law
enforcement and the possibility he experienced a “fight or flight”
response to seeing Deputy Riches in his vehicle. But while the
jury could have inferred from this evidence that Steskal believed
he was in some danger at the time of the killing, this evidence
alone did not constitute substantial evidence that Steskal
opened fire on the officer because he perceived him as posing “a
risk of imminent peril” that could be met only through use of
deadly force. (People v. Simon (2016) 1 Cal.5th 98, 133; see
People v. Manriquez (2005) 37 Cal.4th 547, 582 [evidence that
the “defendant may have harbored some fear of future harm”
from the victim is insufficient to support an imperfect self-
defense theory].) While “[t]he testimony of a single witness,
including the defendant, can constitute substantial evidence” to
support a voluntary manslaughter instruction (People v. Lewis,
supra, 25 Cal.4th at p. 646), none of the evidence here lent
substantial support to a theory of imperfect self-defense; Steskal
himself “did not testify, and there is no evidence he ever told
anyone that he had acted out of fear” (Simon, at p. 134). His
remarks immediately after the shooting offered no indication
that he feared Deputy Riches at all, much less that he feared
imminent harm, and he did not present other evidence to show
what had motivated his actions.
The circumstances of the crime indicated that Steskal
“was the aggressor in the[] confrontation” with Deputy Riches,
not the other way around. (People v. Simon, supra, 1 Cal.5th at
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p. 133.) Shortly before Steskal shot Deputy Riches, a witness
heard him loudly cursing the world and, in response to an effort
to calm him, proclaiming, “Fuck that, I have guns, I have
ammunition.” Armed with a high-powered assault rifle, Steskal
went to a nearby 7-Eleven that was a regular meeting place for
OCSD deputies. Inside the store, Steskal flaunted the gun,
asking the store clerk if she was afraid of it, and told her he
carried it for protection against the “fucking law.” When Deputy
Riches arrived, the clerk watched as Steskal strode without
hesitation toward the patrol car and opened fire while Deputy
Riches was still seated and before he had the opportunity to
access his weapon. Steskal concedes there was no evidence
Deputy Riches threatened him in any way.
Without evidence that Steskal “possessed an actual but
unreasonable belief of imminent danger of death or great bodily
injury,” the trial court did not err as a matter of state law when
it refused to give voluntary manslaughter instructions. (People
v. Beck and Cruz (2019) 8 Cal.5th 548, 649.) Nor was there
federal constitutional error, since “the constitutional
requirement that capital juries be instructed on lesser included
offenses extends only to those lesser included offenses supported
by substantial evidence.” (People v. Duff, supra, 58 Cal.4th at
p. 562.)
2. Scope of expert testimony
Steskal claims the trial court abused its discretion and
violated his right to present a defense by sustaining the
prosecution’s objections to three questions defense counsel posed
to Dr. Pettis about events leading up to the crime. Steskal
argues that he was entitled to present the excluded testimony
as a basis for Dr. Pettis’s opinion under Evidence Code section

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802, which says a witness may provide “the reasons for his
opinion and the matter . . . upon which it is based, unless he is
precluded by law from using such reasons or matter as a basis
for his opinion.” Steskal’s claim lacks merit.
The first two questions defense counsel posed to Dr. Pettis
asked him to relate (1) what Steskal said about having a
“psychotic” reaction to messages on the radio the morning before
the crime and (2) how Steskal described his behavior that day.
The trial court sustained hearsay objections to both questions.
We find no error in the court’s ruling.
As we have recently explained, “[w]hen any expert relates
to the jury case-specific out-of-court statements, and treats the
content of those statements as true and accurate to support the
expert’s opinion, the statements are hearsay.” (People v.
Sanchez (2016) 63 Cal.4th 665, 686.) Dr. Pettis’s responses to
the questions were inadmissible unless Steskal’s statements
came within a hearsay exception. (Ibid.) Steskal did not invoke
any such exception in the trial court, nor does he now invoke
such an exception on appeal.
Steskal instead asserts that Sanchez is inapplicable
because the testimony concerned delusional beliefs rather than
statements offered as “true and accurate.” (People v. Sanchez,
supra, 63 Cal.4th at p. 686.) We reject this contention. The
hearsay in question was not the content of the messages Steskal
purportedly heard from the radio, but Steskal’s report that he
heard such messages at all and experienced a “psychotic”
reaction as a result. The defense sought to present this out-of-
court description of Steskal’s distorted thinking, on which
Dr. Pettis’s opinion had relied, as true and accurate. Such
reliance on out-of-court statements, introduced through the

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medium of expert testimony, is precisely what Sanchez
prohibits.
Steskal also claims the trial court erred in sustaining
objections to a third question: whether anything about Steskal’s
behavior at the apartment complex in the “early morning hours”
on the day of the crime caused Dr. Pettis to doubt that Steskal
was experiencing a mental breakdown. The prosecutor objected
that the question called for hearsay and referred to facts not in
evidence. The trial court sustained the objection without
comment.
The neighbor who testified about Steskal’s behavior
witnessed it at approximately midnight and the crime occurred
just before 1:00 a.m. The question about Steskal’s behavior in
the “early morning hours” therefore seemed to address behavior
after the crime that was not in evidence and the related
implication that Dr. Pettis had learned of it through out-of-court
statements, proper bases for excluding the testimony. In
subsequent questioning, it appeared that the defense simply
misstated the timing and had been referring to the commotion
Steskal caused at the apartment complex before the shooting.
Defense counsel could have, but did not, offer any clarification
in response to the prosecution’s objection.
We conclude that the trial court did not abuse its
discretion by sustaining prosecution objections to the three
questions — particularly when Steskal “made no offer of proof
at trial explaining why the witness should have been permitted
to answer” them (People v. Lightsey (2012) 54 Cal.4th 668, 727)
— and that the application of ordinary rules of evidence did not
impermissibly interfere with Steskal’s constitutional right to
present a defense (People v. O’Malley (2016) 62 Cal.4th 944,

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995). Furthermore, if there had been error, we would conclude
that it was harmless.
Although Dr. Pettis was not allowed to detail Steskal’s
description of having a “psychotic” reaction to the radio on the
day of the crime, based on numerous other sources and
anecdotes and Steskal’s lengthy history of mental illness
Dr. Pettis testified at length about what he regarded as
Steskal’s profound mental health crisis in the weeks, days,
hours, and minutes before the shooting. Among other
conclusions, Dr. Pettis testified that Steskal was extremely
paranoid and unable to process information properly; that he
was terrified that he was going to be killed; and that he acted on
bizarre delusions that he was being monitored. Although the
trial court sustained one objection to testimony about Steskal’s
behavior at the apartment complex, the defense was nonetheless
able to question Dr. Pettis about it, eliciting Dr. Pettis’s opinion
that it showed Steskal to be in “extreme despair,” delusional,
and “very decompensated” just before the shooting. Under these
circumstances, it is not reasonably probable that an outcome
more favorable to Steskal would have resulted had the jury
learned about one or two of Steskal’s postarrest statements that
Dr. Pettis considered (People v. Watson (1956) 46 Cal.2d 818,
836), and any federal constitutional error would have been
harmless beyond a reasonable doubt (Chapman v. California
(1967) 386 U.S. 18, 24).
3. Prosecutorial misconduct
Steskal contends the prosecutor committed misconduct
during his guilt phase closing argument by invoking sympathy
for the victim, inviting the jury to draw an adverse inference
from Steskal’s failure to call his wife as a witness, and arousing

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prejudice against Steskal. Steskal claims the argument violated
both state law and his federal constitutional right to a fair trial.
We conclude that no prejudicial misconduct occurred.
a. Background
During his guilt phase closing, the prosecutor argued that
Deputy Riches saw Steskal in the 7-Eleven with a gun and was
“a hero cop” for pulling up to the store with his lights flashing to
respond to a potentially dangerous situation. A visual aid also
listed “hero cop” in the overview of evidence for the jury. After
the defense objected, the prosecutor explained his theory:
Deputy Riches tried to draw Steskal out of the store by
announcing his arrival, thus risking his life to ensure Steskal
did not harm the store clerk. The trial court concluded the
“hero” reference was not improper but ordered the prosecutor to
explain that he was not seeking sympathy for Deputy Riches
and to remove the visual aid as soon as he finished his
presentation.
The prosecutor prefaced his remaining remarks about
Deputy Riches’s concern for the store clerk by stating: “This is
about whether the defendant committed this crime. We are not
talking about sympathy for Brad Riches. That’s not what this
is about.” Instructions to the jury included CALJIC No. 1.00,
which informed jurors they must not be influenced by sympathy,
a point the defense highlighted in closing.
The prosecutor also argued that Steskal drove off “like a
coward” after shooting Deputy Riches. The defense objected to
the characterization, arguing that the prosecutor had gone “over
the top” arguing that Deputy Riches was a hero and had “just
swung the pendulum down to the lower ends of the scale” by
calling Steskal a coward. The court admonished the jury to

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disregard the term “coward” but rejected counsel’s request to
advise the jury that the prosecutor had committed misconduct.
During his rebuttal, the prosecutor commented on
Steskal’s allegedly long history of paranoia and questioned why,
when he had carried an assault rifle for protection for over a
decade, he had not used it until the night he shot Deputy Riches.
The prosecutor observed that the defense had not explained “the
trigger of why that day, out of the 14 years, all of a sudden the
defendant decided to act out.” Addressing this evidentiary gap,
the prosecutor argued: “Now, the person that was perhaps the
best witness to talk about the defendant before the murder and
after the murder, who I can’t call because of the marital
privilege, they don’t call. They don’t call Nannette Steskal.”
Evidence established that Nannette and Steskal were
married but separated and that she was dating other men.
During the cross-examination of Dr. Pettis, the prosecutor
highlighted some of the records Dr. Pettis considered, including
those that showed Steskal confessed the crime to his wife, she
was driving him to the mountains when OCSD deputies stopped
them and arrested Steskal, and she later lied to investigating
officers when questioned about the circumstances surrounding
the crime.
The defense objected to the prosecutor’s comment as
“improper,” arguing that Nannette could assert a Fifth
Amendment privilege against self-incrimination to avoid
testifying. The prosecutor noted that Nannette was on Steskal’s
witness list and countered that, because the statute of
limitations on any charges against her had run, she had no
privilege to assert. The trial court observed that the question of
privilege could raise “other considerations,” notwithstanding

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any statute of limitations. The court explained: “I just don’t
want to go into all this explanation with the jury as to the
various possibilities, and I think that is fair because it is . . . a
give or take, and there is [sic] some legal considerations the
court is not prepared to make at this point in time.” The trial
court then sustained the defense objection to any further
comments about Nannette’s testimony but rejected a defense
motion to strike the prosecutor’s remarks about the defense’s
failure to call her as a witness.
b. Discussion
Under state law, “ ‘[a] prosecutor who uses deceptive or
reprehensible methods to persuade the jury commits
misconduct . . . .’ ” (People v. Friend (2009) 47 Cal.4th 1, 29.)
Prosecutorial misconduct violates the federal Constitution when
it results in a fundamentally unfair trial. (Ibid.) When a claim
of misconduct is based on remarks to the jury, we consider
whether there is a reasonable likelihood the jury construed the
remarks in an improper fashion. (People v. Gonzales (2012) 54
Cal.4th 1234, 1275.)
Steskal claims the prosecutor’s reference to Deputy Riches
as a “hero” was “a blatant appeal for sympathy” that constituted
misconduct. Our cases make clear that “[a]lthough a prosecutor
may vigorously argue the case, appeals to sympathy for the
victim during an objective determination of guilt fall outside the
bounds of vigorous argument.” (People v. Amezcua and Flores
(2019) 6 Cal.5th 886, 920.) The prosecutor’s argument did not
cross this line, however. The prosecutor’s description of Deputy
Riches was based on evidence of the conduct that led to his fatal
confrontation with Steskal; it was “fair comment on the evidence
and did not suggest ‘that emotion may reign over reason’ or

18
 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

invite ‘an irrational, purely subjective response.’ ” (People v.
Seumanu (2015) 61 Cal.4th 1293, 1343.) In any event, there is
no reasonable likelihood the characterization improperly
inflamed the jury when the reference was brief, the prosecution
and defense both informed the jury that sympathy for Deputy
Riches was not relevant, and the trial court instructed the jury
that sympathy was an inappropriate consideration. (People v.
Daveggio and Michaud (2018) 4 Cal.5th 790, 857.)
Steskal also contends the prosecutor committed
misconduct by commenting on the defense’s failure to call
Nannette as a witness. He asserts that any comment that
invites a jury to draw an adverse inference from the defendant’s
failure to call a witness violates federal due process protections
because it undermines the presumption of innocence and
ignores the variety of reasons a party may have for not calling a
witness despite his or her ability to provide favorable testimony.
He further claims that it was misconduct to comment on the
failure to call Nannette because she could have refused to testify
by invoking a marital communications privilege under Evidence
Code section 980. Steskal did not raise these arguments in the
trial court, and he has not established it would have been futile
to do so. He has therefore forfeited them. We find no grounds
for reversal in any event.
We have long held that a prosecutor may make
“ ‘comments based upon the state of the evidence or upon the
failure of the defense to introduce material evidence or to call
anticipated witnesses.’ ” (People v. Gomez (2018) 6 Cal.5th 243,
299; see, e.g., People v. Gonzales, supra, 54 Cal.4th at p. 1275
[“it is neither unusual nor improper to comment on the failure
to call logical witnesses”]; People v. Szeto (1981) 29 Cal.3d 20,
34.) Steskal acknowledges this authority but urges us to follow
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 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

what he characterizes as “the trend of the law . . . to
substantially narrow the circumstances under which a
prosecutor can comment on a defendant’s failure to call a
particular witness.”
Steskal points to various out-of-state cases, which he
argues stand for two primary propositions. First, a jury should
not be invited to draw an adverse inference from the defendant’s
failure to call particular witnesses when that inference “would
favor the State in a factual dispute over an element of the crime
on which the State clearly bears the burden of proof.” (State v.
Hill (2009) 199 N.J. 545, 565 [974 A.2d 403, 416] [prohibiting
jury instruction]; Jackson v. State (Fla. 1991) 575 So.2d 181, 188
[error to allow reference in closing argument].) Second, an
inference regarding the content of testimony that has not been
offered presents “dangers of speculation and conjecture” (State
v. Brewer (Me. 1985) 505 A.2d 774, 776), particularly
considering that “ ‘questions of demeanor and credibility,
hostility, and the like may influence the [party] not to produce a
witness whose testimony might be entirely harmful to the [other
party]’ ” (State v. Tahair (2001) 172 Vt. 101, 108 [772 A.2d 1079,
1085]).
Our cases have acknowledged the same concerns. We
have explained that “a rule permitting comment on a
defendant’s failure to call witnesses is subject to criticism if
applied when the reason for his failure to do so is ambiguous, or
if the defendant is simply standing on his right to have the state
prove his guilt,” and that a trial court may disallow such
comment for these reasons. (People v. Ford (1988) 45 Cal.3d 431,
447.) Our cases also recognize that “[a] distinction clearly exists
between the permissible comment that a defendant has not
produced any evidence, and . . . an improper statement that a
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 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

defendant has a duty or burden to produce evidence, or a duty
or burden to prove his or her innocence.” (People v. Bradford
(1997) 15 Cal.4th 1229, 1340; see People v. Bennett (2009) 45
Cal.4th 577, 596 [comments do not impermissibly shift the
burden of proof when the prosecutor does not “state or imply
that defendant had a duty to produce evidence”].)
To the extent Steskal asks us to further delineate the
bounds of proper comment on the defendant’s failure to present
certain witnesses, this case does not present an appropriate
occasion to do so. Steskal largely secured at trial the limitation
he now seeks on appeal. Once the prosecutor made reference to
Nannette’s absence from trial, the trial court sustained Steskal’s
objection and prevented the prosecutor from making any further
references. The court did so before the prosecutor could argue
that the omission of Nannette’s testimony justified an adverse
inference.
Furthermore, even if the prosecutor’s solitary reference to
Nannette’s absence from trial was improper — whether due to
general concerns about such comments or the possibility
Nannette could have invoked marital privilege to avoid
testifying — there is no reasonable likelihood the jury construed
the reference in an objectionable fashion. (People v. Gonzales,
supra, 54 Cal.4th at p. 1275.) We consider the remarks in the
context of the argument as a whole and “ ‘ “do not lightly infer”
that the jury drew the most damaging rather than the least
damaging meaning from the prosecutor’s statements.’ ” (People
v. Covarrubias (2016) 1 Cal.5th 838, 894.) Although the jury
could have understood the prosecutor’s comment to imply that
Nannette would undermine Steskal’s mental state defense, the
jury was aware of “equally plausible” reasons for her failure to
testify (People v. Ford, supra, 45 Cal.3d at p. 445): She had been
21
 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

separated from Steskal, involved in his efforts to evade law
enforcement after the shooting, and dishonest when questioned
about Steskal’s actions before and after the crime. Under these
circumstances, jurors could conclude that estrangement,
credibility issues, or Nannette’s own legal troubles explained
her absence from trial. “Despite the prosecutor’s brief remark,
the jury was capable of deciding, as a matter of common sense,
whether [she] was a logical or reliable witness.” (People v.
Gonzalez (1990) 51 Cal.3d 1179, 1216.)
Moreover, however the jury may have understood it, the
prosecutor’s reference to Nannette’s absence “was tangential in
any event.” (People v. Gonzalez, supra, 51 Cal.3d at p. 1216.)
The prosecution did not dispute the key elements of Steskal’s
defense — that he suffered from mental illness that caused him
to fear law enforcement officers. Instead, the prosecution
argued that any fear Steskal experienced did not negate
premeditation and deliberation: “[I]n fact, if you think about
someone who is fearing a situation and wants to prepare to meet
that fear, wants to protect themselves, if that’s truly what they
are feeling[,] . . . that person is going to premeditate and
deliberate more than anybody else.” The prosecution pointed to
evidence that Steskal was cursing and yelling just before leaving
for the 7-Eleven, took an assault rifle with him to the store, told
the store clerk seconds before the shooting that he intended to
use his gun to protect himself against the “fucking law,” and
launched an attack on Deputy Riches the moment he arrived.
As the prosecutor argued, fearful or not, Steskal appeared to be
“a man who has a plan to do something. To provoke, or if
provoked, to respond.” This evidence was far more damaging
than any inference the jury might have drawn about the
likelihood that Nannette’s testimony would be unhelpful to

22
 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

Steskal’s mental state defense. Thus, even if the prosecutor’s
observation about Nannette’s failure to testify were considered
misconduct, we would find no prejudice, particularly when the
comment was brief, “defendant’s objection was immediately
sustained . . . and the prosecutor did not return to the subject.”
(People v. Bennett, supra, 45 Cal.4th at p. 613; see People v.
Ghobrial (2018) 5 Cal.5th 250, 289.)
Finally, Steskal contends the prosecutor appealed to the
passion and prejudice of the jury when he referred to Steskal
driving off “like a coward.” Steskal asserts that this comment,
when combined with the description of Deputy Riches as a hero
and comment on Nannette’s failure to testify, established a
pattern of misconduct that violated his federal constitutional
rights and deprived him of a fair trial. We are not persuaded.
“[T]he use of derogatory epithets to describe a defendant is not
necessarily misconduct” where, as here, “[t]he prosecutor’s
remarks . . . were founded on evidence in the record and fell
within the permissible bounds of argument.” (People v. Friend,
supra, 47 Cal.4th at p. 32.) In any event, the trial court
admonished the jury to disregard the “coward” reference and we
“presume the jury heeded the admonition and that any error
was cured.” (People v. Dickey (2005) 35 Cal.4th 884, 914.) Given
this resolution, we find no prejudicial misconduct, nor do we
discern any pattern of misconduct that could have affected the
fairness of Steskal’s trial or otherwise violate his federal
constitutional rights.
4. Jury view of Deputy Riches’s patrol car
Steskal contends the trial court erred by allowing a jury
view of Deputy Riches’s patrol car and asserts the evidence was
so inflammatory it denied him a fair trial. We find no error.

23
 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

a. Background
Before trial, the prosecution moved to allow the jury to
view the patrol car and to have the car transported to the
courthouse for this purpose. The defense opposed the motion,
arguing that allowing the jury to view the patrol car, which was
riddled with bullet holes, was more prejudicial than probative
under Evidence Code section 352. Defense counsel stated, “I
can’t imagine anyone viewing that patrol car not gasping and
not being overwhelmed with a whole variety of emotions. It is
really a horrible sight.” Steskal did not dispute the facts a jury
view would highlight: He fired 30 rounds into the patrol car
from close range as Deputy Riches sat trapped inside. The
prosecution added that seeing the vehicle would allow the jury
to appreciate where the bullets struck in relation to Deputy
Riches’s position. Overruling the defense objection, the trial
court concluded that when defendant was the person who “blew
up the car,” there was no reason the jury should not see it; “[i]t
is not like looking at Deputy Riches’ body. We are keeping out
most of those photographs.”
Steskal moved for reconsideration. After viewing the
patrol car, the trial court denied the motion, stating: “I think it
is extremely probative. Certainly, probative value outweighs
any prejudicial effect. . . . I think [it does] nothing but assists
the trier of fact as far as the position of the defendant and the
position of the victim.”
At trial, after the prosecutor marked a number of
photographs of the patrol car he intended to introduce, the
defense renewed its objection to the jury view of the car as
cumulative of the photographs. The trial court again overruled
the objection, observing that most of the photographs only

24
 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

showed a portion of the vehicle and those showing the entire car
were from a higher angle than a person would get standing in
front of the car — “seeing the car is not only more probative than
cumulative, but very beneficial to the trier of fact, because it
gives you the perspective of the shooter and the victim that you
don’t get looking at the photographs.” The jury later viewed the
patrol car for six minutes on court premises.
The prosecution also introduced photographs of the patrol
car showing some of the bullet holes in the hood and windshield,
the shattered driver’s window, closeup images of damage to the
interior, and a view of the vehicle from a distance. In addition,
the prosecution played surveillance videotapes that recorded
events from inside the 7-Eleven, capturing the sound of
gunshots after Steskal left the store and a distant glimpse of the
shooting. The prosecution also presented the testimony of
witnesses including a 7-Eleven employee who saw Steskal
walking close to the patrol car as he fired his rifle; first
responders who described finding Deputy Riches; a criminalist
who collected evidence and attempted to determine the
trajectory of shots; and a pathologist who described Deputy
Riches’s wounds. A photograph showing Deputy Riches’s body
at the hospital further revealed the extent of some of his
injuries.
b. Discussion
“The trial court may allow the jury to ‘view the place in
which the offense is charged to have been committed, or in which
any other material fact occurred.’ ([Pen. Code, ]§ 1119.) We
review for abuse of discretion a trial court’s ruling on a party’s
motion for a jury view.” (People v. Davis (2009) 46 Cal.4th 539,
610.)

25
 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

Evidence Code section 352 “permits the court to exclude
otherwise relevant evidence if its probative value is
substantially outweighed by the probability that its admission
will create a substantial danger of undue prejudice.” (People v.
Powell (2018) 5 Cal.5th 921, 961.) “During the guilt phase, there
is a legitimate concern that crime scene [evidence] can produce
a visceral response that unfairly tempts jurors to find the
defendant guilty of the charged crimes.” (People v. Box (2000)
23 Cal.4th 1153, 1201, disapproved on another ground in People
v. Martinez (2010) 47 Cal.4th 911, 948, fn. 10.) However, “[s]o
long as the probative value of graphic or disturbing material is
not substantially outweighed by its prejudicial effects, a
prosecutor is entitled to use such evidence to ‘present a
persuasive and forceful case.’ ” (People v. Merriman (2014) 60
Cal.4th 1, 80; see People v. Fayed (2020) 9 Cal.5th 147, 196
[prosecution entitled to present “ ‘ “grim” ’ ” evidence of violent
crime]; People v. Booker, supra, 51 Cal.4th at p. 171 [prosecution
“is not required to sanitize its evidence”].)
Steskal claims the patrol car did not have substantial
probative value because it did not address disputed issues. A
defendant, however, “cannot prevent the admission of relevant
evidence by claiming not to dispute a fact the prosecution is
required to prove beyond a reasonable doubt. The jury was
entitled to learn that the physical evidence . . . supports the
prosecution’s theory of the case.” (People v. Rountree (2013) 56
Cal.4th 823, 852; see People v. Cowan (2010) 50 Cal.4th 401, 476
[“defendant’s not guilty plea put in issue all of the elements of
the charged offenses, including the elements he conceded”].)
As evidence of the volume and aim of shots directed at
Deputy Riches from close range, the patrol car was “highly
relevant to show the manner in which the [victim was] killed”
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 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

(People v. Ramirez (2006) 39 Cal.4th 398, 453; see People v.
Brasure (2008) 42 Cal.4th 1037, 1054), to “illustrate and
corroborate the testimony given by [witnesses] regarding the
circumstances of the crime” (People v. Scheid (1997) 16 Cal.4th
1, 18), and to support the conclusion that the killing was
deliberate (People v. Booker, supra, 51 Cal.4th at p. 171; People
v. Riggs (2008) 44 Cal.4th 248, 304; cf. People v. Salazar (2016)
63 Cal.4th 214, 245 [multiple gunshots at close range supported
theory of premeditation and deliberation]; People v. Gonzales
and Soliz (2011) 52 Cal.4th 254, 295 [same]).
Steskal contends the patrol car also lacked probative value
because it was cumulative of the photographs, videotapes, and
witness testimony before the jury. But as the trial court
observed, viewing the patrol car in person afforded a perspective
not evident in the photographs, which showed only portions of
the vehicle. The same is true of the videotapes and eyewitness
testimony. The prosecutor was not required to rely solely on
those pieces of evidence when viewing the vehicle “would
enhance the jury’s understanding of the issues.” (People v.
Cowan, supra, 50 Cal.4th at p. 476; see People v. Brasure, supra,
42 Cal.4th at p. 1054.)
Steskal claims the jury view was unduly prejudicial
because it had the emotional impact of “a death scene” strewn
with bullet holes, shattered glass, and torn, blood-soaked fabric.
The prejudice with which Evidence Code section 352 is
concerned, however, is not damage to a defense that is caused
by relevant, noncumulative, and highly probative evidence.
(People v. Doolin (2009) 45 Cal.4th 390, 439.) Graphic evidence
in a murder case is always disturbing (People v. Thomas (2012)
53 Cal.4th 771, 807) but it is not inadmissible simply because it
is unpleasant to view (see, e.g., People v. Fayed, supra, 9 Cal.5th
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 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

at p. 196 [victim’s blood-soaked shirt and pants]; Thomas, at
p. 805 [victims’ clothing stained with blood and tissue]; People v.
Riggs, supra, 44 Cal.4th at p. 303 [crime scene and autopsy
photographs of victim]; People v. Brasure, supra, 42 Cal.4th at
pp. 1053–1054 [photographs of victim’s decomposing and
tortured body]; People v. Lewis, supra, 25 Cal.4th at p. 642
[photographs and videotape showing victims in blood-splattered
surroundings]). “ ‘The jury can, and must, be shielded from
depictions that sensationalize an alleged crime, or are
unnecessarily gruesome, but the jury cannot be shielded from
an accurate depiction of the charged crimes that does not
unnecessarily play upon the emotions of the jurors.’ ” (People v.
Streeter (2012) 54 Cal.4th 205, 238.)
Steskal does not claim that viewing the patrol car exposed
the jury to any “sensationalized illustrations of a crime” (People
v. Zambrano (2007) 41 Cal.4th 1082, 1150) or “gratuitous
details” unrelated to his actions (People v. Caro (2019) 7 Cal.5th
463, 503). “ ‘We will not disturb a trial court’s exercise of
discretion under Evidence Code section 352 “ ‘except on a
showing that the court exercised its discretion in an arbitrary,
capricious or patently absurd manner that resulted in a
manifest miscarriage of justice.’ ” ’ ” (People v. Mora and Rangel
(2018) 5 Cal.5th 442, 480.) The trial court’s reasoned decision
to allow a jury view of the patrol car was not an abuse of this
discretion. (See People v. Spencer (2018) 5 Cal.5th 642, 681 [trial
court is better able to assess prejudice from the display of
physical evidence].)
Steskal also claims that the jury view of the patrol car
violated his federal due process rights, arguing that it was
inherently inflammatory and had no substantial,
noncumulative probative value. Although the Attorney General
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 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

argues that Steskal forfeited his due process argument by
failing to object on that basis at trial, we have reached an
asserted due process violation when it was based on the same
theory of exclusion set forth under Evidence Code section 352.
(People v. Partida (2005) 37 Cal.4th 428, 438–439.) But
Steskal’s claim fails on the merits. “ ‘The admission of relevant
evidence will not offend due process unless the evidence is so
prejudicial as to render the defendant’s trial fundamentally
unfair.’ ” (People v. Jablonski (2006) 37 Cal.4th 774, 805.) The
jury view of the patrol car did not have such an effect on
Steskal’s trial.
5. Cumulative error
Steskal argues that even if harmless in isolation, the guilt
phase errors he asserts were cumulatively prejudicial.
Discussing the prosecutor’s reference to Nannette’s absence
from trial, we explained that even if prosecutorial misconduct
occurred it was not prejudicial. As we have found no other
errors, there is no cumulative prejudice that could have denied
Steskal a fair trial.
B. Penalty Retrial Issues
1. Admission of impeachment testimony
Steskal contends the trial court abused its discretion when
it allowed the prosecution to reference the facts of other death
penalty cases during the cross-examination of defense
psychiatrist Dr. Pettis at the penalty retrial. We reject this
claim.
In cross-examining Dr. Pettis, the prosecutor asked him
about two prior death penalty cases in which he had testified for
the defense. Dr. Pettis testified that his role in the first case had
been to evaluate whether the defendant was competent to be

29
 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

executed. When the prosecutor referenced the fact that the
defendant in that case had been convicted of raping and
murdering two women, Dr. Pettis indicated that he did not
recall the crime but confirmed he had concluded the defendant
lacked mental competence to be executed. When the prosecutor
asked whether he was biased against the death penalty,
Dr. Pettis responded that he was not. The prosecutor then
observed that the defendant in the second case was convicted of
raping a woman and setting her on fire. Dr. Pettis testified
regarding his conclusion that the second defendant suffered
from mental illness at the time of his crimes.
The defense objected to the first exchange on relevance
grounds. Later, outside the presence of the jury, defense counsel
argued that allowing the jury to hear about the crimes in
Dr. Pettis’s prior cases served no purpose but to suggest that
“this guy will get on the stand in any horrific case and testify for
the defense.” The trial court overruled defense objections based
on relevance and Evidence Code section 352. But it advised the
prosecution to keep any similar questioning brief because “the
weighing process leans more towards prejudicial.” Steskal
contends it was error for the trial court to permit the questioning
at all.
“It is settled that the trial court is given wide discretion in
controlling the scope of relevant cross-examination.” (People v.
Farnam (2002) 28 Cal.4th 107, 187.) “ ‘[T]he scope of cross-
examination of an expert witness is especially broad . . . .’ ”
(People v. DeHoyos (2013) 57 Cal.4th 79, 123; see Evid. Code,
§ 721, subd. (a).) “The prosecutor may properly cross-examine a
witness to show bias, prejudice, interest, hostility or friendship
toward a party that would bear on the question of the credibility
of the witness. [Citations.] An expert’s testimony in prior cases
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 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

involving similar issues is a legitimate subject of cross-
examination when it is relevant to the bias of the witness.”
(DeHoyos, at p. 123.) A “witness’s personal philosophical
opposition to the death penalty is relevant to his credibility.”
(People v. Bennett, supra, 45 Cal.4th at p. 606.)
A prosecutor may refresh an expert’s recollection of prior
matters “by providing a brief recitation of their salient facts,” to
allow the expert an opportunity to defend past conclusions.
(People v. Shazier (2014) 60 Cal.4th 109, 137.) In Shazier, we
concluded that the prosecutor did not commit misconduct by
reciting potentially inflammatory facts from prior cases
involving sexually violent predators when it was an “effort to
attack the validity of [the expert’s] opinions in the other cases.”
(Id. at p. 139.) Similarly, in People v. Zambrano, supra, 41
Cal.4th 1082, we observed that it was permissible for the
prosecutor to challenge an expert on prison adjustment by
referencing the facts of a prior case in which the expert found
the defendant posed no safety risk in prison though convicted of
four murders and six attempted murders. (Id. at pp. 1164–
1165.) There, we noted that “[t]he prosecutor was entitled to
expose bias in the witness by showing his propensity to advocate
for criminal defendants even in extreme cases.” (Id. at p. 1165.)
Here, by contrast, the prosecution inquiry was limited to
showing that Dr. Pettis made mental health findings favorable
to the defense in two prior death penalty cases involving
particularly horrifying crimes. The facts of the prior cases were
relevant neither to the validity of Dr. Pettis’s conclusions in
those matters, as was the case in Shazier, nor to any potential
bias in his findings, as in Zambrano. Instead, the prosecutor’s
questioning tended to imply that Dr. Pettis’s willingness to
testify for the defense in cases involving such crimes, without
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 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

more, reflected a bias against the death penalty.
Assuming for the sake of argument that the questions
were improper, we conclude that they were harmless. The
prosecutor’s reference to other case facts was brief, Dr. Pettis
testified that he was not biased against the death penalty, and
the impact of the questioning was minimal given the
prosecutor’s extensive and detailed cross-examination of
Dr. Pettis’s findings, which spanned four days.
2. Prosecutorial misconduct
Steskal contends the prosecutor committed misconduct in
his closing argument at the penalty retrial, violating state law
and federal due process protections. We conclude that no
misconduct occurred.
Steskal first claims there were two instances in which the
prosecutor argued that Dr. Pettis’s testimony concerning
mitigating factors was in fact aggravating. Citing evidence
admitted under Penal Code section 190.3, factor (b), that Steskal
had a weapon in his jail cell, the prosecutor remarked on
Steskal’s dangerousness in custody: “Do you think for a moment
that the defendant wouldn’t use that? Look back at Dr. Pettis’[s]
testimony . . . . He said the defendant is very mild and meek . . .
except when he is into this delusion thing, and then he just goes
all out of control . . . . [¶] So if you tend to believe this . . . you
have a person right now that is capable and willing to kill
someone in authority.” Later, when discussing mitigating
factors, the prosecutor noted that “a lack of mitigation in those
factors does not mean aggravation. But there are things that
you can consider in mitigation that would reduce mitigation.”
The prosecutor argued that “if Dr. Pettis has some credibility
with you, you may want to look at this part of his testimony,

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 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

where he is saying that the defendant . . . when he gets
confronted with authority figures, you see what happens. [¶]
That would be less than mitigating, if that is in fact true.”
Preliminarily, the Attorney General asserts that Steskal
failed to preserve his claim. Defense counsel raised his
objections in a motion for mistrial the day after the prosecutor’s
argument and before the defense had completed its closing
remarks. “ ‘ “It is now well settled that an appellate court will
not consider a claim as to the misconduct of counsel in argument
unless objection is so made.” [Citation.] “The reason for this
rule, of course, is that ‘the trial court should be given an
opportunity to correct the abuse and thus, if possible, prevent by
suitable instructions the harmful effect upon the minds of the
jury.’ ” ’ ” (People v. Peoples (2016) 62 Cal.4th 718, 801.) We
have explained that when a defendant’s objections to
prosecution statements in a motion for mistrial are “specific
enough for the trial court to craft suitable corrective
instructions” and are made before the end of closing argument,
“thus providing the trial court with an opportunity to admonish
the jury prior to the start of deliberations,” the challenge may
be preserved. (Ibid.) Though the form and timing of Steskal’s
objection may not have been “ideal” (ibid.), Steskal’s motion for
mistrial was sufficient to preserve the claim.
Turning to the merits, we first consider Steskal’s claim
that the prosecutor improperly urged the jury to consider
mitigating evidence as aggravating when he discussed Steskal’s
possession of weapons in jail, saying that Dr. Pettis’s testimony,
if believed, tended to show Steskal would be “capable and willing
to kill someone” while incarcerated. In People v. Edelbacher
(1989) 47 Cal.3d 983, we held that evidence of a defendant’s
character and background is admissible under Penal Code
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 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

section 190.3, factor (k), “only to extenuate the gravity of the
crime; it cannot be used as a factor in aggravation.”
(Edelbacher, at p. 1033.) We later explained that a prosecutor
may present “evidence of mental illness” in aggravation if it
“relates to an aggravating factor listed in section 190.3”; that is
so “even if it also bears upon a mitigating factor listed in that
section.” (People v. Smith (2005) 35 Cal.4th 334, 356.) Thus,
although “general evidence regarding a defendant’s mental
state” may not be characterized as aggravating, mental state
evidence may be considered in aggravation if, for example, it
represents “specific evidence of the motivation behind the
killing” and therefore is “relevant as a circumstance of the
crime.” (Id. at p. 355; see People v. Nelson (2011) 51 Cal.4th 198,
224 [“ ‘[e]vidence that reflects directly on the defendant’s state
of mind contemporaneous with the capital murder is relevant
under section 190.3, factor (a)’ ”].) It is not improper for a jury
to consider evidence of the defendant’s mental disorder in
aggravation when it is not “strictly mitigating,” but instead
relates to the circumstances of the crime or another factor in
aggravation. (People v. Krebs (2019) 8 Cal.5th 265, 349.)
Here, the prosecutor highlighted a circumstance of the
crime — Steskal’s asserted reason for killing Deputy Riches —
as relevant to his future dangerousness toward correctional
staff. We have observed that state of mind evidence
“ ‘demonstrating [the defendant’s] attitude toward his victims
[is] highly probative’ on the issue of future dangerousness.”
(People v. Winbush (2017) 2 Cal.5th 402, 477; see People v. Rich
(1988) 45 Cal.3d 1036, 1123 [future dangerousness argument
may be based on circumstances of the crime].) And “ ‘[w]e have
repeatedly declined to find error or misconduct where argument
concerning a defendant’s future dangerousness in custody is

34
 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

based on evidence of his past violent crimes admitted under one
of the specific aggravating categories of [Penal Code] section
190.3.’ ” (People v. Tully (2012) 54 Cal.4th 952, 1046.) The
prosecutor did not commit misconduct by urging the jury to
consider the potential danger Steskal posed to correctional staff
in light of his possession of weapons admitted under Penal Code
section 190.3, factor (b) and the delusional mistrust of authority
he had asserted to explain the circumstances of his crime.
Steskal’s objection to the prosecutor’s argument that
Steskal’s asserted delusional overreaction to authority was “less
than mitigating” also lacks merit. This was not an argument
that the jury should consider mitigating defense evidence in
aggravation, but that Steskal’s mitigating evidence did not carry
weight. “ ‘ “ ‘A prosecutor does not mischaracterize such
evidence [offered in mitigation] by arguing it should not carry
any extenuating weight when evaluated in a broader factual
context. We have consistently declined to criticize advocacy of
this nature.’ ” ’ ” (People v. Weaver (2012) 53 Cal.4th 1056,
1087.)
Steskal also claims the prosecutor committed misconduct
in the course of arguing that the jury should discount defense
expert testimony. When cross-examining Dr. Pettis, the
prosecutor referenced a report in which Nannette claimed that
Steskal told her what to say if she were questioned by the police.
Dr. Pettis acknowledged that Nannette later lied when she was
interviewed by investigating officers. She falsely said that she
did not see Steskal take his gun to the 7-Eleven or come back
with it, gave an excuse for Steskal deciding to shave his
mustache immediately after the shooting, claimed that Steskal
did not tell her what had happened, and denied knowing that
Steskal put a gun in her car before she drove him away from the
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 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

apartment. Dr. Pettis testified that it was “conceivable” that
Steskal and his wife had made an agreement to lie to the police.
In closing, the prosecutor argued that defense expert
opinions were based on unreliable information. Overruling a
defense objection to one such characterization, the trial court
informed the jury: “[T]he lawyers are arguing what they
perceive to be the facts. They are probably also going to argue
inferences from these facts as they perceive them. You get to
decide the facts, not the lawyers. So if they say something that
may appear to be inconsistent with your recollection, it is your
recollection that, obviously, you rely on and is important.”
Moments later, the prosecutor argued that Dr. Pettis had relied
on Nannette’s OCSD interviews even though they were
“[r]eplete with lies” that she and Steskal had concocted to cover
up the crime. The defense objected on the ground that the
argument was based on a fact not in evidence, but the trial court
overruled the objection. Steskal now contends the prosecutor
committed misconduct by arguing that Nannette and Steskal
had entered an agreement to cover up the crime.
The Attorney General argues that Steskal forfeited his
claim by failing to specifically cite misconduct and request an
admonition. We will assume, for the sake of argument, that
Steskal’s objection was sufficient to preserve the issue for
appeal. (See People v. Pearson (2013) 56 Cal.4th 393, 434.) We
find no misconduct. “ ‘The prosecution is given wide latitude
during closing argument to make fair comment on the evidence,
including reasonable inferences or deductions to be drawn from
it.’ ” (People v. Seumanu, supra, 61 Cal.4th at p. 1363.) Given
Dr. Pettis’s testimony acknowledging the possibility of planned
deception, the prosecutor could ask the jury to infer that Steskal
and his wife agreed on her fabrications to the sheriff’s
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 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

department. “It was a matter for the jury to decide whether the
inference was faulty or illogical and . . . the court repeatedly
reminded the jurors that argument was not evidence.” (People
v. Tully, supra, 54 Cal.4th at p. 1044.)
3. Admission of evidence depicting the victim and
crime scene
Steskal contends that prosecution evidence illustrating
the circumstances of the crime — a mannequin depicting
Deputy Riches, photographs and a jury view of Deputy Riches’s
patrol car, and autopsy photographs — was unduly prejudicial,
and therefore should have been excluded under Evidence Code
section 352. He further contends that the admission of this
evidence violated his federal constitutional rights to due process
and a reliable penalty trial. We conclude that the trial court did
not abuse its discretion in admitting the evidence and that no
federal constitutional violation occurred.
Again, “ ‘[p]rejudice’ in the context of Evidence Code
section 352 is not synonymous with ‘damaging’: it refers to
evidence that poses an intolerable risk to the fairness of the
proceedings or reliability of the outcome.” (People v. Booker,
supra, 51 Cal.4th at p. 188.) “[T]he court’s discretion under
Evidence Code section 352 to exclude evidence showing
circumstances of the crime ‘is much narrower at the penalty
phase than at the guilt phase. This is so because the prosecution
has the right to establish the circumstances of the crime,
including its gruesome consequences ([Pen. Code, ]§ 190.3,
factor (a)), and because the risk of an improper guilt finding
based on visceral reactions is no longer present.’ [Citations.] At
the penalty phase, the jury ‘is expected to subjectively weigh the
evidence, and the prosecution is entitled to place the capital
offense and the offender in a morally bad light.’ ” (People v. Bell
37
 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

(2019) 7 Cal.5th 70, 105–106.) The trial court retains “its
traditional discretion to exclude ‘particular items of evidence’ by
which the prosecution seeks to demonstrate either the
circumstances of the crime (factor (a)), or violent criminal
activity (factor (b)), in a ‘manner’ that is misleading, cumulative,
or unduly inflammatory.” (People v. Box, supra, 23 Cal.4th at
p. 1201.)
a. Mannequin depicting Deputy Riches
At the penalty retrial, Steskal objected to the introduction
of a life-sized mannequin dressed in Deputy Riches’s bloody
uniform. There was vomit on the front shirt pocket and the
dried blood blended in with the color of the uniform, which was
dark green. Rods placed in the mannequin reflected the location
and trajectory of bullet wounds. Ruling that the mannequin was
admissible, the trial court observed that it was not going to
“shock anybody’s sensibilities.” The prosecutor referred to the
mannequin during the pathologist’s testimony to show the
location of each wound as he described them. During his closing
argument, the prosecutor brought the mannequin out to show
the concentration of shots directed to the upper left chest area,
highlighting the aggravated nature of the crime. When not in
use during the testimony and closing argument, the mannequin
was stored outside of the jury’s view and was not placed in the
jury room during deliberations.
Steskal asserts there was little probative value to the
mannequin, given that the circumstances of the crime were not
contested, and that the mannequin was prejudicial because it
was “startlingly life-like” and the condition of the uniform was
“shocking.” This argument is not persuasive; this court has
repeatedly held that otherwise relevant evidence is not

38
 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

inadmissible simply because it is graphic or because it depicts
uncontested facts. (People v. Thomas, supra, 53 Cal.4th at
p. 806.) In Thomas, for instance, although the cause and
circumstances of death were not in dispute, we upheld the guilt
phase introduction of life-sized mannequins representing slain
officers, as well as their blood- and tissue-stained clothing. (Id.
at pp. 805–806.) The trial court in this case did not err when it
admitted similar evidence in Steskal’s penalty retrial, a
juncture in the proceedings when the constraints on its
discretion to exclude the evidence were greater than they would
have been in the guilt phase. (People v. Bell, supra, 7 Cal.5th at
pp. 105–106.) We have long recognized that “[m]annequins may
be used as illustrative evidence to assist the jury in
understanding the testimony of witnesses or to clarify the
circumstances of a crime” (People v. Cummings (1993) 4 Cal.4th
1233, 1291) and have “rejected challenges to the prosecution’s
use of mannequins to represent victims during the presentation
of aggravating evidence” (People v. Peoples, supra, 62 Cal.4th at
p. 753). We have similarly upheld the admission of a victim’s
stained clothing to show the circumstances of the crime (People
v. Spencer, supra, 5 Cal.5th at p. 680), as well as the admission
of photographs and videotape portraying actual victims in death
(see, e.g., People v. Henriquez (2017) 4 Cal.5th 1, 40
[photographs]; People v. Cunningham (2015) 61 Cal.4th 609, 668
[photographs and videotape]). “[A]s unpleasant as these
[depictions] may be, they demonstrate the real-life consequences
of defendant’s actions. The prosecution was entitled to have the
penalty phase jury consider those consequences.”
(Cunningham, at p. 668.)
We also reject Steskal’s claim that the mannequin was
cumulative of other evidence such as the patrol car and

39
 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

testimony by the pathologist and first responders. When used
to illustrate the pathologist’s testimony, as the mannequin did
here, the “demonstrative evidence provides noncumulative
value over the testimony itself by encapsulating what may
otherwise be . . . confusing.” (People v. Caro, supra, 7 Cal.5th at
p. 510.) “[A] prosecutor is not required to rely solely on oral
testimony when a visual image would enhance the jury’s
understanding of the issues.” (People v. Cowan, supra, 50
Cal.4th at p. 476.)
We conclude the trial court acted within its discretion in
finding that the probative value of the mannequin was not
substantially outweighed by the risk of undue prejudice.
“Consistent with our holding in People v. Medina (1990) 51
Cal.3d 870, 898–899 [274 Cal.Rptr. 849, 799 P.2d 1282] — a case
where the prosecution entered into evidence a mannequin
wearing a victim’s bloodstained shirt — we find that ‘[t]he trial
court was in a far better position than we to assess the potential
prejudice arising from the display of such physical evidence.’
Upon the record before us, we see no basis to upset its decision”
(People v. Spencer, supra, 5 Cal.5th at p. 681) and conclude there
was no violation of Steskal’s federal constitutional rights (People
v. Henriquez, supra, 4 Cal.5th at p. 29).
b. Jury view of Deputy Riches’s patrol car
As in the guilt phase, during the penalty retrial the trial
court permitted the jury to view Deputy Riches’s patrol car, over
the defense’s renewed objections. Steskal contends this ruling
was error, asserting that the patrol car was inflammatory, was
not relevant to any contested issue, and was cumulative of other
evidence, including the mannequin, photographs of the patrol
car, and witness testimony. We find no abuse of discretion.

40
 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

Again, evidence may be admissible though undisputed
(People v. Thomas, supra, 53 Cal.4th at p. 806; People v. D’Arcy
(2010) 48 Cal.4th 257, 299), and it is not unduly prejudicial for
“ ‘accurately portray[ing] the shocking nature of the crime[]’ ”
(People v. Zambrano, supra, 41 Cal.4th at p. 1150).
Furthermore, in the penalty retrial, the prosecution was entitled
greater leeway “ ‘to establish the circumstances of the crime,
including its gruesome consequences,’ ” and “to demonstrate the
full extent of the suffering defendant inflicted on his victim.”
(People v. Bell, supra, 7 Cal.5th at p. 106.) “ ‘[T]he penalty phase
is an especially appropriate time to introduce [evidence]
showing exactly what the defendant did.’ ” (People v. Johnson
(2015) 61 Cal.4th 734, 767–768.)
We reject Steskal’s assertion that a jury view of the patrol
car was cumulative of other evidence in the penalty retrial. In
our review of Steskal’s similar guilt phase claim, we concluded
that the vehicle was not cumulative of photographs and
testimony. The same is true for the penalty retrial, where the
prosecution introduced nearly identical evidence. Although the
mannequin provided an additional depiction of the crime and
Deputy Riches’s wounds, the destruction of the patrol car
uniquely illustrated the firepower Steskal wielded, the number
and pattern of shots, and the vulnerability of Deputy Riches as
he sat defenseless in the driver’s seat — circumstances of the
crime the prosecutor highlighted in closing.
We therefore conclude that in the penalty retrial, the
patrol car evidence was “neither cumulative nor misleading and
[was] highly probative of the penalty issues, demonstrating the
deliberate and brutal nature of the crime.” (People v. Staten
(2000) 24 Cal.4th 434, 463.) The trial court’s decision to admit
the evidence was not an abuse of discretion or constitutional
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 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

error.
c. Admission of autopsy and patrol car
photographs
Steskal claims the trial court erred in admitting
photographs that were unduly prejudicial. At issue were three
autopsy photographs and 13 photographs of the patrol car and
other property damaged in the shooting. We find no error.
The pathologist described 30 major wounds Deputy Riches
sustained to his head, neck, chest, shoulder, and arms. Three
autopsy photos admitted into evidence showed severe wounds to
Deputy Riches’s right hand and forearm. The prosecution later
emphasized that Deputy Riches’s right hand and weapon were
struck by gunfire, leaving him defenseless.
A criminalist testified regarding her collection and
analysis of bullet casings and other evidence at the scene. She
explained how she attempted to recreate the position of the
shooter by examining gunshot damage to the patrol car and
nearby businesses. Photographs referenced during the
criminalist’s testimony and introduced into evidence depicted a
view of the patrol car from a distance as it was found at the
scene; bullet holes in the nearby businesses; the shattered
driver’s window taped in place to preserve bullet hole evidence;
the interior of the vehicle, including closeup views of damage
and Deputy Riches’s revolver and radio found on the driver’s
seat and floor; trajectory rods placed in some of the bullet holes;
and exterior views of bullet holes in the hood and windshield
without the trajectory rods.
Steskal asserts that the photographs lacked probative
value because they addressed matters that were not in dispute
and were cumulative of other evidence. We are not persuaded.

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 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

Photographs that depict the crime scene and the victim’s
wounds are relevant to the penalty determination as evidence of
the circumstances of the crime (People v. Booker, supra, 51
Cal.4th at p. 187) “ ‘ “and the prosecution is ‘not obliged to prove
these details solely from the testimony of live witnesses,’ ” even
in the absence of a defense challenge to particular aspects of the
prosecution’s case’ ” (People v. D’Arcy, supra, 48 Cal.4th at
p. 299). As we have explained, “[p]hotographs and other graphic
evidence are not rendered ‘irrelevant or inadmissible simply
because they duplicate testimony[ or] depict uncontested
facts . . . .’ ” (People v. Thomas, supra, 53 Cal.4th at p. 806.)
Furthermore, most of the photographs illustrated circumstances
of the crime that were not conveyed by the mannequin and an
external view of the patrol car: incapacitating injury to Deputy
Riches’s hand, damage to nearby businesses, the position of the
patrol car at the scene, items as they were found in the driver’s
seat area, and closeup details of damage viewed from the
interior of the vehicle.
Steskal points to empirical studies regarding the dramatic
effect gruesome photographs may have on jury decisionmaking
and contends the photographs admitted in his trial were likely
to have had an improper impact on the penalty verdict.
“Defendant did not raise that objection at trial, and the studies
in question are not part of the trial record. Thus, the trial court
was not provided an opportunity to consider the relevance of the
studies in weighing the potential for undue prejudice against
the probative value of the photographs.” (People v. Sattiewhite
(2014) 59 Cal.4th 446, 472.)
We have viewed the photographs and conclude the trial
court did not abuse its discretion in admitting them. “ ‘ “A trial
court’s decision to admit photographs under Evidence Code
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 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

section 352 will be upheld on appeal unless the prejudicial effect
of such photographs clearly outweighs their probative value.” ’ ”
(People v. Henriquez, supra, 4 Cal.5th at p. 40.) The autopsy
photographs were “tightly cropped” to show only Deputy
Riches’s hand and arm and photographs of the patrol car were
“neither gory nor particularly disturbing.” (People v. Jackson
(2014) 58 Cal.4th 724, 757.) The evidence was “ ‘neither unduly
gruesome nor inflammatory’ ” (ibid.), would not have interfered
with the jury’s rational decisionmaking, and did not represent
an abuse of discretion or a violation of Steskal’s constitutional
rights.
4. Admission of victim impact testimony
Steskal claims that victim impact testimony rendered his
penalty retrial fundamentally unfair because it was more
extensive and emotional than the federal Constitution allows.
We reject this claim.
a. Background
As previously indicated, Deputy Riches’s parents, best
friend, and three coworkers testified for part of an afternoon.
Their testimony spans 45 pages of transcript.
Deputy Riches’s father, Bruce Riches, testified only briefly
to describe his depression following the murder and visits to his
son’s gravesite. He identified a photograph of Deputy Riches
taken a few years before his death.
Deputy Riches’s mother, Meriel Riches, testified about
brain trauma at birth that caused Deputy Riches to have a
learning disability and problems with coordination. He
succeeded in school through “sheer determination.” He also
loved participating in the marching band, although he almost
quit out of concern his disability would hold the group back.

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 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

Even as a teenager, Deputy Riches helped others — building a
chicken coop for one elderly couple and a mountainside stairway
for another. She testified that he was “brimming over with love
and generosity.”
James Henery, a captain with the Santa Ana Fire
Department, testified that Deputy Riches had been his best
friend since high school. Recalling times when they were
volunteer firefighters together, Henery described arriving at the
scene of a man’s death and Deputy Riches’s compassion in
comforting the man’s wife. When they worked together at a
home for the disabled, Deputy Riches learned sign language so
that he could speak to a resident who was deaf. Deputy Riches
was close to Henery’s children and wanted a family of his own.
He was a loyal friend who would listen to Henery’s problems
without judgment and someone who was always willing to help
others. Henery identified photographs of Deputy Riches as a
teenager, of a trip they took together two years before his death,
and of Deputy Riches in uniform when he was staffing a booth
at the county fair.
Scott Vanover, an OCSD deputy, testified about the strong
friendship he developed with Deputy Riches even though they
worked together for less than a year. Vanover’s brother died
during their childhood and the impact of Deputy Riches’s death
was similar to the experience of losing his brother. Vanover
described a trip to London with Deputy Riches, and Deputy
Riches’s willingness to talk to strangers — Riches was positive
almost to the point of being naïve. Vanover identified a
photograph of Deputy Riches on their London trip.
Eric Hendry was an OCSD deputy and Deputy Riches’s
training officer. He described the bond of training officer to

45
 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

trainee — “almost like brothers” — and the profound effect of
Deputy Riches’s murder on his marriage, relationship with his
children, attitude about his job, and connection to God.
Joseph Hoskins met Deputy Riches when they were both
new OCSD deputies working in the jail. He described providing
aid to an inmate who was having a seizure and Deputy Riches’s
encouragement and support through the experience. He
testified that Deputy Riches was a “comforting force” and
someone on whom he could rely.
b. Discussion
Steskal argues that “highly emotional” testimony from
these six witnesses violated his constitutional rights.
“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 [Penal Code]
section 190.3, factor (a) as a circumstance of the crime.
[Citation.] The 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.) We have repeatedly held that “ ‘[a]dmission of testimony
presented by a few close friends or relatives of each victim, as
well as images of the victim while he or she was alive,’ ” is
constitutionally permissible. (People v. Murtishaw (2011) 51
Cal.4th 574, 595.)
In Brady, for example, where the victim was also a law
enforcement officer, we upheld testimony by a physician, three
law enforcement officers, and five family members who
discussed the victim’s “childhood hardships, his lifelong desire
to be a police officer, his achievements, his engagement and
future plans, his death, his funeral service, and the aftereffects

46
 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

of his death.” (People v. Brady, supra, 50 Cal.4th at p. 573; see
also People v. Spencer, supra, 5 Cal.5th at p. 678 [seven
witnesses for one victim]; People v. Simon, supra, 1 Cal.5th at
p. 140 [six witnesses and 59 pages of testimony].) We decline
Steskal’s invitation to overrule this precedent, which dictates
our conclusion that the nature and amount of victim impact
evidence in Steskal’s penalty retrial was constitutionally
acceptable.
Steskal does not point to specific testimony or evidence
when he claims that witnesses conveyed information in a
“highly emotional manner” that was particularly inflammatory
when considered in the context of other evidence, such as the
mannequin and patrol car. “The question is not simply whether
victim impact evidence was emotional or demonstrated the
devastating effect of the crime; rather, it is whether the
testimony invited an irrational response from the jury.” (People
v. Simon, supra, 1 Cal.5th at p. 140.) Here, Steskal “provides no
persuasive basis for us to conclude that the testimony presented
in this case triggered such a response. And our review of the
record indicates the testimony was not so emotional that the
trial court’s failure to exclude it amounted to an abuse of
discretion or rendered [defendant’s] trial fundamentally unfair.”
(Ibid.)
Finally, Steskal argues that testimony by nonfamily
members should have been excluded. This is an argument we
have previously rejected. “Neither the United States Supreme
Court nor this court has ever identified a constitutional or
statutory basis for so constraining the permissible scope of
victim impact testimony (see Payne v. Tennessee [(1991)] 501
U.S. [808,] 822–823 [prosecution may be permitted to show the
loss to the community as a whole]; id. at p. 830 (conc. opn. of
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 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

O’Connor, J.) [same]; People v. Pearson, supra, 56 Cal.4th at
pp. 466–467; People v. Thomas (2011) 51 Cal.4th 449, 507–508
[121 Cal.Rptr.3d 521, 247 P.3d 886]; People v. Ervine (2009) 47
Cal.4th 745, 792–793 [102 Cal.Rptr.3d 786, 220 P.3d 820]), and
because [defendant] offers no persuasive reasons that would
render these authorities inapposite, we again decline to do so
here.” (People v. Trinh (2014) 59 Cal.4th 216, 246.)
5. Admission of evidence and instruction on the
attempted jail escape
Steskal claims the trial court erred when it admitted
evidence of his attempted escape from jail and instructed the
jury to consider this incident as aggravating. We conclude no
error occurred.
a. Background
While Steskal was in jail awaiting the penalty retrial,
correctional staff discovered a small portion of his cell wall
scraped away, found strips of bed sheet hidden in his mattress,
and confiscated portions of metal blades and clippers in his
possession, some fashioned into hand-held instruments. The
defense conceded that the question of whether the metal
instruments were weapons or scraping tools was one for the jury
but argued there was insufficient evidence of a threat of force or
violence to support admission of the escape attempt. The trial
court found evidence of multiple crimes admissible pursuant to
Penal Code section 190.3, factor (b): attempted escape (Pen.
Code, §§ 4532, subd. (b), 664); possession of sharp instruments
(id., § 4502); and possession of at least two deadly weapons (id.,
§ 4574).
During the penalty retrial, the prosecution presented
evidence that Steskal possessed contraband metal items in jail:

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 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

a hair clipper blade attached to a paper handle; portions of nail
clippers; and a “shank,” a handheld weapon made with metal
from a large toenail clipper. A correctional expert testified that
the shank and hair clipper blade could be used to stab and slash
and were potentially dangerous weapons.
The prosecution also presented evidence that Steskal had
been chipping at the wall between his cell and an adjoining
mechanical room that contained a ventilator shaft. He had
managed to scrape away a patch in the 24-inch-thick concrete
wall that was a third of an inch deep. While the mechanical
room was locked from the outside, there was no barrier to
exiting it once inside; a person could also move through the
ventilation system to the roof of the jail, though access to the
roof was blocked by metal bars. The strips of bed sheets Steskal
saved were long enough to enable his descent from the roof of
the jail to the street. Because the jail was in a building that also
housed the city police department, correctional and other law
enforcement personnel were often present on the street on their
way to and from work.
b. Discussion
“Evidence of actual or threatened violent criminal activity
‘that would allow a rational trier of fact to find the existence of
such activity beyond a reasonable doubt’ is admissible under
[Penal Code section 190.3,] factor (b). [Citation.] Such evidence
must involve actual, attempted, or threatened force or violence
against a person, and not merely to property.” (People v. Wallace
(2008) 44 Cal.4th 1032, 1079.) Factor (b) encompasses
“attempted use of force or violence or the express or implied
threat to use force or violence.” (Pen. Code, § 190.3, factor (b).)
“A trial court’s decision to admit, at the penalty phase, evidence

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 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

of a defendant’s prior criminal activity is reviewed under the
abuse of discretion standard.” (People v. Bacon (2010) 50
Cal.4th 1082, 1127.)
When considering evidence of escape in the context of
Penal Code section 190.3, factor (b), “we must review the factual
setting of each particular escape to determine whether it
involved actual or threatened violence and not presume that the
escape was violent because of the possibility of violence in
reapprehension.” (People v. Jackson (1996) 13 Cal.4th 1164,
1257, fn. 2; see People v. Boyd (1985) 38 Cal.3d 762, 776–777.)
Thus, “[a]lthough evidence of attempted escape alone is not
admissible under section 190.3, factor (b),” we have found escape
evidence sufficient in a variety of circumstances indicating a
threat of violence: when the defendant possessed a weapon and
had a plan to use it (People v. Romero and Self (2015) 62 Cal.4th
1, 49); when the defendant attempted to obtain a shank as “ ‘a
ticket out’ ” and possessed torn mattress covers (People v.
Gallego (1990) 52 Cal.3d 115, 155; see id. at p. 196); when the
defendant planned to use a weapon if necessary but had not yet
obtained one (People v. Boyde (1988) 46 Cal.3d 212, 250); and
when the defendant did not possess a weapon, but the escape
plan would have required him to confront a guard (People v.
Mason (1991) 52 Cal.3d 909, 955–956). In contrast, we have
concluded that evidence of escape was not admissible when
there was “no evidence that violence was being planned or even
prepared for.” (Jackson, at p. 1256.)
Steskal argues on appeal, as he did at trial, that there was
insufficient evidence his attempted escape involved a threat of
force or violence. He claims the contraband metal clippers were
for digging out of his cell and no evidence established his intent
to use them as weapons. Our cases establish, however, that
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 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

“possession of a potentially dangerous weapon in custody ‘is
unlawful and involves an implied threat of violence even where
there is no evidence defendant used or displayed it in a
provocative or threatening manner.’ ” (People v. Delgado (2017)
2 Cal.5th 544, 586.) “ ‘The trier of fact is free to consider any
“innocent explanation” for defendant’s possession of the item,
but such inferences do not render the evidence inadmissible per
se.’ ” (People v. Jurado (2006) 38 Cal.4th 72, 139–140.)
The jury could infer from evidence presented that Steskal
planned to escape by scraping a hole in his cell wall and exiting
the jail with the aid of a rope made of bedsheets. Testimony that
a shank and other metal items in his possession could be used
as dangerous weapons supported an implied threat of violence.
The trial court’s decision that this was sufficient evidence of
attempted escape for admission pursuant to Penal Code section
190.3, factor (b) was not an abuse of discretion. (People v.
Gallego, supra, 52 Cal.3d at p. 196.)
Even if evidence of the attempted escape fell short of that
sufficient to establish threatened violent criminal activity
beyond a reasonable doubt, its admission was harmless. Steskal
does not challenge the trial court’s conclusion that his
possession of multiple sharp instruments (Pen. Code, § 4502)
and deadly weapons (id., § 4574) was admissible under Penal
Code section 190.3, factor (b). (People v. Landry (2016) 2 Cal.5th
52, 118; People v. Wallace, supra, 44 Cal.4th at p. 1082.)
Addressing the issue in closing argument, the prosecution
highlighted Steskal’s manufacture of weapons and argued that
he would pose a danger to correctional staff in any setting; this
argument did not depend on the conclusion that Steskal
specifically intended to use the weapons to commit violence in
an escape. And Steskal himself relied on evidence of the escape
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 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

to counter the suggestion he was dangerous, arguing that he did
not intend to use the contraband clippers and blades as weapons
but as tools to scrape the wall. Under these circumstances, we
conclude that excluding evidence of Steskal’s escape efforts —
scraping away a small patch of cell wall and concealing strips of
bedsheets — would not have affected the jury’s verdict.
Steskal contends the trial court’s error in admitting Penal
Code section 190.3, factor (b) evidence was exacerbated by
instructing the jury to consider it. Finding no error in the
admission of the evidence, we reject this claim.
6. Instructional error regarding unadjudicated
offenses
Steskal contends that a pattern instruction regarding
Penal Code section 190.3, factor (b) evidence, CALJIC No. 8.87,
improperly removed from the jury the task of determining
whether alleged criminal activities involved an actual or implied
threat of violence. He asserts the instruction also improperly
defined the requisite criminal acts as requiring the “implied use”
rather than “implied threat” of force or violence, and explains
that a threat involves an intention to use force or violence but
does not necessarily lead to violence. As we have observed,
“these claims are common objections, previously rejected.”
(People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335,
451.)
First, the question whether there was an actual or implied
threat of violence was not for the jury to decide. “Although the
question of whether the acts occurred is a factual matter for the
jury, the characterization of those acts as involving an express
or implied use of force or violence, or the threat thereof, is a legal
matter for the court to decide.” (People v. Manibusan (2013) 58

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 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

Cal.4th 40, 96.)
Steskal’s second assertion regarding improperly defined
terms is “neither the only nor most reasonable understanding of
the instruction.” (People v. Bryant, Smith and Wheeler, supra,
60 Cal.4th at p. 452.) “[E]ven if the instruction did not clearly
define the types of possible threats, it did not explicitly tell the
jury that a threat to use force or violence necessarily was an
actual threat, rather than an implied one. Defendant[] w[as] not
precluded from arguing that [his] offenses involved only implied
threats and that the jury should give less aggravating weight to
that evidence.” (Ibid.)
7. Constitutionality of the death penalty for mentally
ill defendants
Steskal claims the Eighth Amendment to the United
States Constitution categorically prohibits the death penalty for
individuals with severe mental illness. He further contends
that, given his delusional disorder, a death sentence is
constitutionally disproportionate to his personal culpability. We
have rejected similar claims on several occasions. (E.g., People
v. Ghobrial, supra, 5 Cal.5th at pp. 275–276; People v. Mendoza
(2016) 62 Cal.4th 856, 908–909.) Consistent with our precedent,
we reject Steskal’s claim as well.
The Eighth Amendment prohibition against cruel and
unusual punishments is interpreted by referring to “ ‘evolving
standards of decency . . .’ to determine which punishments are
so disproportionate as to be cruel and unusual.” (Roper v.
Simmons (2005) 543 U.S. 551, 561 (Roper).) This inquiry begins
with “a review of objective indicia of consensus, as expressed in
particular by the enactments of legislatures that have addressed
the question.” (Id. at p. 564; see Atkins v. Virginia (2002) 536

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 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

U.S. 304, 312 (Atkins).) We have observed that “while Atkins
and Roper had relied on the emergence of a national consensus
against the imposition of the death penalty in cases of
intellectual disability2 and in cases involving juvenile offenders,
there exists no similar evidence that a national consensus has
formed against the imposition of the death penalty against the
class of persons with mental illness.” (People v. Ghobrial, supra,
5 Cal.5th at p. 275; see also People v. Mendoza, supra, 62 Cal.4th
at p. 909; People v. Boyce (2014) 59 Cal.4th 672, 722.)
Steskal asks us to reexamine this conclusion, contending
that a national consensus is evident in a type of insanity defense
— “volitional incapacity” — available in seven states that
impose the death penalty and in decisions from states that have
prohibited capital punishment for particular mentally ill
offenders through individual proportionality review. The
insanity defense Steskal cites, however, is a traditional defense
to criminal liability that “surfaced over two centuries ago”
(Clark v. Arizona (2006) 548 U.S. 735, 749) and is unrelated to
sentencing. Furthermore, the most recent of the state laws
reflecting the defense have been in place for decades. Similarly,
of the handful of individual proportionality cases Steskal cites,
only one was decided in this century. Neither these historical
decisions nor the existence of an age-old insanity defense
reflects a “trend toward abolition” of the death penalty for
persons with mental illness. (Roper, supra, 543 U.S. at p. 566.)
Steskal and his amici curiae claim that additional sources
reflect community and international consensus in support of his

2
We use the term “intellectual disability” in accordance
with current terminology except when quoting from other
sources. (People v. Woodruff (2018) 5 Cal.5th 697, 737, fn. 5.)

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 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

claim, including opinion polls, positions taken by mental health
organizations and the American Bar Association (ABA), and
United Nations resolutions. (See, e.g., ABA Section on
Individual Rights and Responsibilities, Report of the Task Force
on Mental Disability and the Death Penalty (2005) (ABA Task
Force Report) [as of Apr. 29, 2021].) (All
Internet citations in this opinion are archived by year, docket
number, and case name at
.) These materials are,
however, identical or substantially similar to materials we have
already held “insufficient to demonstrate emerging standards
that warrant reexamination of our precedent.” (People v.
Ghobrial, supra, 5 Cal.5th at p. 276, citing People v. Mendoza,
supra, 62 Cal.4th at p. 910.)
As evidence of a national consensus, Steskal also
highlights legislation recently enacted in Ohio that allows
defendants to establish ineligibility for the death penalty if they
have been diagnosed with one of four serious mental illnesses,
including delusional disorder. But while our Legislature may
consider following Ohio’s lead in approaching this issue (People
v. Hajek and Vo (2014) 58 Cal.4th 1144, 1252; People v.
Mendoza, supra, 62 Cal.4th at p. 909), the recent Ohio
legislation is not, at this point, sufficient to establish a national
consensus for purposes of the Eighth Amendment analysis.
(Compare Atkins, supra, 536 U.S. at p. 314.)
In rejecting claims similar to Steskal’s, our cases have
emphasized the inherent difficulty of defining mental illness for
categorical Eighth Amendment exemption and explained that
the Legislature is in the best position to address the issue if it
so chooses: “ ‘There are a number of different conditions
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 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

recognized as mental illnesses, and the degree and manner of
impairment in a particular individual is often the subject of
expert dispute. Thus, while it may be that mentally ill offenders
who are utterly unable to control their behavior lack the
extreme culpability associated with capital punishment, there is
likely little consensus on which individuals fall within that
category or precisely where the line of impairment should be
drawn. . . . We leave it to the Legislature, if it chooses, to
determine exactly the type and level of mental impairment that
must be shown to warrant a categorical exemption from the
death penalty.’ ” (People v. Mendoza, supra, 62 Cal.4th at
p. 909.)
Steskal acknowledges this definitional difficulty but
argues it does not defeat his claim. Referencing
recommendations from the ABA Task Force Report, Steskal
proposes a definition of severe mental illness that includes
schizophrenia and other psychotic disorders, which, in their
acute state, are associated with significant disruptions in
thinking and perception. Because the effects of such conditions
may not be constant, however — for example, persons with a
delusional disorder may not experience such disruptions all or
most of the time — Steskal adds the consideration of case-
specific factors to his definition of severe mental illness,
explaining that it is intended to signify a “class of offenders who
are not just severely mentally ill, but whose severe mental
illness was causally related to the offense itself.”
By these descriptions it is apparent that Steskal’s is not a
categorical approach to defining a class of offenders with mental
illness; instead, it raises the question whether “the penalty was
unwarranted under the facts of [a] particular case,” an inquiry
into individual culpability that must be conducted on a case-by-
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 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

case basis. (People v. Mendoza, supra, 62 Cal.4th at p. 911.) The
ABA Task Force Report on which Steskal relies confirms the
point, explaining that although Atkins “dispensed with a case-
by-case assessment of responsibility” for a class defined by
intellectual disability, in matters involving severely mentally ill
offenders “preclusion of a death sentence based on diagnosis
alone would not be sensible, because the symptoms of these
disorders are much more variable than those associated with
retardation . . . .” (ABA Task Force Rep., supra, at p. 4; see also
Slobogin, What Atkins Could Mean for People with Mental
Illness (2003) 33 N.M. L.Rev. 293, 309 [defendants should
demonstrate their symptoms during the relevant time period to
account for variability associated with mental illness].) These
observations are consistent with our prior conclusion that there
is “ ‘likely little consensus’ ” on “ ‘where the line of impairment
should be drawn’ ” as a categorical matter or “ ‘which
individuals fall within that category.’ ” (Mendoza, at p. 909.)
Steskal argues that offenders with severe mental illness
are in pertinent respects similarly situated to intellectually
disabled and juvenile offenders, and therefore should also be
categorically exempt from capital punishment. He notes that in
reaching its holding in Atkins, the high court explained that
recognized justifications for the death penalty — retribution and
deterrence — did not apply to intellectually disabled offenders,
whose impairments render them both less morally culpable and
“make it less likely that they can . . . control their conduct based
upon” a threat of execution. (Atkins, supra, 536 U.S. at p. 320.)
In Roper, the high court reached similar conclusions with
respect to offenders under the age of 18. (Roper, supra, 543 U.S.
at p. 571.) Steskal argues that capital punishment similarly
fails to serve as a deterrent or proper retribution for those with

57
 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

severe mental illness. He also argues that, as with intellectually
disabled and juvenile offenders, individuals with severe mental
illness may have impairments that hinder their relationship
with counsel, limit their ability to competently navigate other
aspects of the criminal justice system, and enhance the
likelihood a jury would attribute future dangerousness to them.
(See Atkins, at p. 320.) Again, precedent forecloses Steskal’s
arguments. We have previously explained that the application
of the death penalty to individuals with mental illness presents
different considerations than its application to intellectually
disabled and juvenile offenders. As Steskal and amici curiae
acknowledge, mental illness affects different individuals
differently, may wax and wane in severity over time, and even
those with severe mental illness may have periods of functioning
adequately. Although some mentally ill offenders may “lack the
extreme culpability associated with capital punishment” (People
v. Mendoza, supra, 62 Cal.4th at p. 909), Steskal has not
demonstrated that such impairment “is so widespread among all
types of serious mental illnesses that all those so diagnosed
must be spared the death penalty” (id. at p. 911) because the
penalty “would not serve societal goals of retribution and
deterrence” (id. at p. 909).
As for Steskal’s argument regarding reduced capacity to
assist counsel, “to the extent that Atkins and Roper were
concerned with the risk of ‘unjustified or mistaken execution’ in
the case of persons with intellectual disabilities and juvenile
offenders, significant variations in the forms and nature of
mental illness make it difficult to say that impaired competence
is a feature common to the class.” (People v. Ghobrial, supra, 5
Cal.5th at p. 275.) That is to say, we are unable to attribute to
all severely mentally ill defendants a degree of impairment that

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 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

necessarily threatens the exercise of rights or undermines the
ability to present a compelling case in mitigation, though of
course “[a]ll defendants, including this one, have the
opportunity to establish that they are not competent to stand
trial.” (People v. Mendoza, supra, 62 Cal.4th at p. 911.) Nor
does the risk that mental illness may be wrongfully associated
with future dangerousness in some cases establish a categorical
basis for excluding all those who experience such a condition
from capital punishment — though we emphasize that in every
case a defendant is entitled to the benefit of established limits
on arguments and evidence concerning future dangerousness.
(See People v. Banks (2014) 59 Cal.4th 1113, 1185–1186.)
These acknowledged differences between the groups of
offenders answer Steskal’s argument that it violates equal
protection to treat individuals with mental illness differently
from intellectually disabled and juvenile offenders: Given the
variation among offenders affected by mental illness, we have
held that the class of persons with mental illness are not
similarly situated to those who are minors or intellectually
disabled for purposes of equal protection. (People v. Mendoza,
supra, 62 Cal.4th at p. 912; People v. Boyce, supra, 59 Cal.4th at
p. 723.) These conclusions do not prevent an individual from
arguing that “the penalty was unwarranted under the facts of
[a] particular case . . . .” (Mendoza, at p. 911.) But they do
foreclose the categorical approach Steskal urges us to adopt.
In the alternative, Steskal requests intracase
proportionality review, contending that his death sentence is
disproportionate to his individual culpability. The Eighth
Amendment to the federal Constitution prohibits the imposition
of a penalty that is disproportionate to the defendant’s “personal
responsibility and moral guilt.” (Enmund v. Florida (1982) 458
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 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

U.S. 782, 801.) California’s Constitution establishes the same
prohibition. (Cal. Const., art. I, § 17.) Thus, to determine
whether a sentence is cruel or unusual, we examine the
circumstances of the offense and consider the defendant’s
personal characteristics, including age, prior criminality, and
mental capabilities. (People v. Mendoza, supra, 62 Cal.4th at
p. 911; see also People v. Landry, supra, 2 Cal.5th at p. 125
[intracase proportionality review conducted upon request].) A
sentence is unconstitutional when the penalty is “grossly
disproportionate to the offense” (People v. Dillon (1983) 34
Cal.3d 441, 450) so that it “ ‘shocks the conscience and offends
fundamental notions of human dignity’ ” (People v. Frierson
(1979) 25 Cal.3d 142, 183; see Mendoza, at pp. 911–912).
Evidence at trial indicated that Steskal was extremely
agitated after leaving his remote camp and returning to town
for legal matters related to a prior traffic stop. Shortly before
the crime, he could be heard loudly slamming objects and
repeatedly yelling that he hated the world. When he went to a
7-Eleven for cigarettes, Steskal carried a semiautomatic rifle he
claimed was for protection against the “fucking law.” As Deputy
Riches arrived at the store, Steskal fired 30 rounds directly at
him from close range, with no provocation, and before Deputy
Riches could exit his patrol car or draw his gun. The prosecution
presented additional evidence that Steskal threatened a police
officer many years earlier by racing toward him on a motorcycle.
Before his penalty retrial, correctional staff found Steskal
preparing for an escape and accumulating contraband metal
blades and clippers to chip away at his wall and/or use as
weapons.
In his defense, Steskal presented considerable lay and
expert testimony regarding his difficult childhood and long-
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 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

standing mental health problems. As an adult, he was isolated,
tormented by irrational and severe paranoia, and frequently
suicidal. There was evidence that following a traffic stop in
which he was mistreated by sheriff’s deputies, Steskal’s mental
health deteriorated significantly — at the time of the crime, he
held the delusional belief that law enforcement officers wanted
to kill him. Despite this evidence, the jury rejected defense
arguments for lesser culpability. The jury reached its penalty
verdict after considering evidence of Steskal’s childhood abuse
and family dysfunction, chronic mental illness, persistent
developmental problems, lack of a criminal record, and kindness
toward others.
Much as in prior cases, we cannot say that evidence of
Steskal’s mental illness or other characteristics renders his
capital sentence grossly disproportionate to his crime. (See
People v. Mendoza, supra, 62 Cal.4th at p. 911; People v. Boyce,
supra, 59 Cal.4th at p. 721 [citing cases]; People v. Lawley (2002)
27 Cal.4th 102, 171.) Having given careful consideration to this
evidence, the jury determined both that Steskal’s murder of
Deputy Riches was premeditated and deliberate and that death
was the appropriate penalty. Given the circumstances of the
murder and “in light of the careful consideration already
accorded to defendant’s evidence of mental illness at the trial
level” (Mendoza, at p. 912), we cannot say the penalty is
unconstitutionally disproportionate.
8. Constitutionality of the death penalty statute
Steskal presents a number of challenges to California’s
death sentencing scheme, acknowledging that we have
previously rejected them. We decline to revisit our precedent
and hold as follows:

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 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

There is no merit to Steskal’s claim that the special
circumstances set forth in Penal Code section 190.2 fail to
perform their constitutionally required narrowing function, or
that Penal Code section 190.3, factor (a), which allows the jury
to consider the “circumstances of the crime” when making a
penalty determination, results in the arbitrary and capricious
imposition of the death penalty. (People v. Ghobrial, supra, 5
Cal.5th at p. 291; People v. Linton (2013) 56 Cal.4th 1146, 1214–
1215.)
We also reject Steskal’s claims that additional procedural
safeguards are required to ensure constitutionally reliable
sentencing. “[T]his court has repeatedly rejected arguments
that the federal Constitution requires the penalty phase jury to
make unanimous written findings beyond a reasonable doubt
that the aggravating factors exist, that they outweigh the
factors in mitigation, and that death is the appropriate penalty.”
(People v. Brooks (2017) 3 Cal.5th 1, 115; see People v. Johnson
(2016) 62 Cal.4th 600, 655–656.) “The United States Supreme
Court’s decisions interpreting the Sixth Amendment’s jury trial
guarantee [citations] do not call into question these
conclusions.” (Johnson, at p. 655.) There is likewise no violation
of due process or Sixth Amendment jury trial rights in allowing
the jury to consider prior unadjudicated crimes aggravating
under Penal Code section 190.3, factor (b), and to do so without
unanimously finding Steskal guilty of those crimes. (Johnson,
at p. 656.) Finally, “there is no Eighth Amendment requirement
that California’s death penalty scheme provide for intercase
proportionality review” (Johnson, at p. 656) and “the failure to
afford capital defendants at the penalty phase some of the
procedural safeguards guaranteed to noncapital defendants . . .
does not violate the equal protection clause” (id. at p. 657).

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 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

Contrary to Steskal’s claim, “ ‘the statutory instruction to
the jury to consider “whether or not” certain mitigating factors
were present [does] not unconstitutionally suggest that the
absence of such factors amounted to aggravation.’ ” (People v.
Jones (2012) 54 Cal.4th 1, 87.)
Steskal contends evolving standards of decency have
rendered the death penalty unconstitutional. He claims the
increasing number of states that have abolished the death
penalty and its declining use in states that retain it reflect a
national consensus against capital punishment. Steskal asserts
that additional factors — the rising number of exonerations,
race and gender disparities, and delay — further justify a
conclusion that the death penalty is unreliable, arbitrary, and
cruel and unusual in violation of Eighth Amendment
protections.
We are not prepared to say that the trends Steskal cites
reflect rejection of the death penalty “in the majority of States”
(Roper, supra, 543 U.S. at p. 567), or that the record before us
establishes arbitrariness violative of the Eighth Amendment
(see People v. Seumanu, supra, 61 Cal.4th at p. 1374). We thus
decline to revisit the conclusion we have repeatedly reached,
that “California’s use of the death penalty does not violate
international law, the federal Constitution, or the Eighth
Amendment’s prohibition against cruel and unusual
punishment in light of ‘evolving standards of decency.’ ” (People
v. Mitchell (2019) 7 Cal.5th 561, 590.)

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 PEOPLE v. STESKAL
Opinion of the Court by Kruger, J.

III. DISPOSITION
The judgment of the superior court is affirmed.
KRUGER, J.

We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
GROBAN, J.
JENKINS, J.

64
See next page for addresses and telephone numbers for counsel who
argued in the Supreme Court.

Name of Opinion People v. Steskal
__________________________________________________________________

Procedural Posture (see XX below)
Original Appeal XX
Original Proceeding
Review Granted (published)
Review Granted (unpublished)
Rehearing Granted
__________________________________________________________________

Opinion No. S122611
Date Filed: April 29, 2021
__________________________________________________________________

Court: Superior
County: Orange
Judge: Frank F. Fasel
__________________________________________________________________

Counsel:

Gilbert Gaynor, under appointment by the Supreme Court, for
Defendant and Appellant.

Crowell & Moring, Michelle Gillette, Mina Nasseri-Asghar, Nicole
Ambrosetti and Tiffanie McDowell for Mental Health America and
National Alliance on Mental Illness as Amici Curiae on behalf of
Defendant and Appellant.

Kamala Harris and Xavier Becerra, Attorneys General, Gerald A.
Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Ronald A. Jakob, Holly D. Wilkens, Robin Urbanski,
Christine Y. Friedman and Kelley Johnson, Deputy Attorneys
General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):

Gilbert Gaynor
Law Office of Gilbert Gaynor
8383 Wilshire Blvd., Suite 510
Beverly Hills, CA 90211
(805) 636-6209

Christine Y. Friedman
Deputy Attorney General
600 W. Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9050