People v. Phillips

Filed 2/28/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,

v. A156387

MICHAEL J. PHILLIPS,
(San Francisco County
Defendant and Appellant. Super. Ct. No. SCN228962)

Defendant Michael J. Phillips appeals from his conviction after a jury
found him guilty of special circumstances murder, aggravated mayhem,
robbery, burglary and several other offenses. He argues the trial court erred
by admitting evidence of prior misconduct, allowing an officer to opine that a
dark substance observed on Phillips’s cargo pants was blood, sustaining the
prosecutor’s objection to a part of defense counsel’s closing argument and
denying a motion for mistrial after witnesses testified to an inadmissible
hearsay statement. We reject Phillips’s claims of error as either
unmeritorious or harmless and therefore affirm.
BACKGROUND
James Sheahan, a 75-year-old man suffering from late-stage lung
cancer, was found dead in his apartment on Bush Street in San Francisco on
the morning of Monday August 14, 2017. A brother from out-of-state had

1
called Sheahan’s apartment manager after he was unable to reach Sheahan.
After the manager knocked on Sheahan’s door and received no response, she
called police, who entered the apartment.
Inside, police found Sheahan lying face down on the floor with large
pools of blood near his head and feet. He had cuts on his wrist and dried
blood in his hair, and there was blood and blood spatter on furniture, walls, a
cordless telephone receiver and other items in his combination living
room/bedroom. The police summoned paramedics, who arrived and
confirmed that Sheahan was dead. An autopsy indicated that the death was
a homicide, that Sheahan had suffered 12–13 blunt force injuries to the head
as well as cuts to his wrists, that the cause of death was multiple traumatic
injuries and that he had died sometime between the evening of Friday
August 11, 2017, and the morning of Monday August 14, 2017.
A post-it note found in Sheahan’s apartment bearing the name “Mike”
and a phone number led Sergeant Discenza, the lead officer investigating the
crime, to call Phillips on Thursday August 17, 2017, and to record the
conversation when Phillips returned the call the same day. In response to
Discenza’s questions, Phillips told the officer he first learned of Sheahan’s
death from Discenza’s voicemail message, he had last visited with Sheahan
the previous Friday evening, the visit had been brief, he and Sheahan had
been close friends, he knew Sheahan had lung cancer and he was trying to
arrange cheaper home care for Sheahan than he was currently getting.
Ultimately, the investigation, which will be described in the discussion of the
trial below, pointed to Phillips as the murderer.

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 I.
The Charges
In April 2018, the San Francisco District Attorney charged Phillips
with murder (Pen. Code, § 187, subd. (a)(1)1) with three special circumstance
allegations (financial gain (§ 190.2, subd. (a)(1)), robbery (§ 190.2,
subd. (a)(17)(A)) and burglary (§ 190.2, subd. (a)(17)(G)) [Count 1];
aggravated mayhem (§ 205) [Count 2]; inflicting injury on an elder or
dependent adult (§ 368, subd. (b)(1)) likely to cause great bodily injury (§ 368,
subd. (b)(2)) [Count 3]; first degree robbery (§ 211) with great bodily injury
(§ 12022.7, subd. (c)) [Count 4]; first degree residential burglary (§ 459) with
great bodily injury (§ 12022.7, subd. (c)) and in the presence of another
person, a violent felony (§ 667.5, subd. (c)(21)) [Count 5]; first degree
residential burglary (§ 459) in the presence of another person [Count 6]; theft,
embezzlement, forgery or fraud on an elder (§ 368, subd. (d)) in an amount
exceeding $950 [Count 7]; manufacture, possession or utterance of fraudulent
financial documents (§ 476) [Count 8]; misdemeanor theft of an access card
(§ 484e, subd. (c)) [Count 9]; and receiving stolen property (§ 496, subd. (a))
[Count 10].
II.
The Trial
Phillips’s trial commenced in August 2018 and concluded with a verdict
convicting him of first degree murder with special circumstances, mayhem,
abuse of an elder with great bodily injury, first degree robbery and burglary,
both with great bodily injury enhancements, fraud on an elder, possession of
fraudulent financial documents and theft of an access card.

1 Statutory references are to the Penal Code unless otherwise
indicated.

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 A. Prosecution Evidence
James Sheahan, a 75-year-old man suffering from stage 4 lung cancer,
was hospitalized in June and July 2017 to be treated for a severe diarrhea
condition caused by the chemotherapy he had been receiving. His condition
improved, and he returned home in July 2017.
Sheahan’s nurse from Sutter Health, Angelica Tumandao, testified that
she first saw him at his apartment on July 14, 2017. He was weak and pale
and his brother Tom was with him. She was concerned that he might fall
and thought he should be placed in a facility where he could be cared for. She
saw him at his apartment on Friday August 11, 2017. He was walking, was
not bedridden, had a caregiver he was happy with, and was not injured or
coughing up blood. She was no longer concerned that he needed to be moved
into a facility. He was smiling, happy with his caregiver and receptive to
what the nurse was teaching him.
On Monday August 14, 2017, a temporary manager of the building
where Sheahan lived, Vickie Chak, received a call from Sheahan’s brother
Tom asking her to check on Sheahan because Tom had been trying
unsuccessfully to reach him. At about 9:30 or 9:45 that morning, she knocked
on the door to Sheahan’s apartment and called his name and when nobody
answered called the police.
San Francisco Police Officers Scott Dumont and Kimberly Larkey
arrived at Sheahan’s apartment at about 10:30 a.m. Receiving no response
when they knocked on Sheahan’s door, they were assisted by Chak who used
a master key to open the door. They found Sheahan’s body lying face down
on the living room floor. He had blood on his head and in his hair and an
injury on his wrist and dried blood toward the base of his feet. There was
dried blood on him and throughout the apartment. He was not showing any
life symptoms and appeared to be dead. The blood in his hair, at his feet and

4
throughout the apartment was dry. There was an odor of body
decomposition. Sheahan’s wrists were slit but the officers looked and did not
immediately find a knife.
There was a large pool of blood on the floor close to Sheahan’s head and
another on the floor near his feet. There was also blood on the couch,
bookcases, books, walls, telephones, a fan, box, pillows, a bed, magazines and
papers. Near Sheahan’s feet were a towel and a tissue box, both of which
were bloody. Inside the box were a pair of bloody yellow rubber gloves, a pair
of bloody clear latex gloves and what appeared to be wadded up bloody tissue.
Two apartment windows were open, one in the living room facing Bush
Street and one in the kitchen facing an interior courtyard. The kitchen
window led to a fire escape that descended toward the courtyard.
After paramedics arrived, examined the body, pronounced Sheahan
dead and left the scene, two investigators from the Medical Examiner’s Office
arrived. Officer Larkey told them there was no sign of forced entry, a key
was used to open the locked door, the death did not appear to be from natural
causes and could have been self-inflicted or from an assault, and there was
possibly a knife missing from the butcher block in the kitchen. She also
noted that some picture frames appeared to be knocked off the wall and there
was blood spatter on the wall there. After searching for an object that could
have inflicted the injuries, the investigators bagged Sheahan’s body and
removed it.
Assistant Medical Examiner Ellen Moffat, who performed an autopsy
on Sheahan’s body, testified as an expert in forensic pathology. She had
examined the body, the toxicology report, and slides containing tissue
samples and conferred with other assistant medical examiners. Dr. Moffat
determined the manner of death was homicide. She did not believe the cuts

5
to the wrists caused Sheahan’s death (though they could have contributed to
it) because there was very little bleeding, as there would have been if a
person had cut his own wrists while he was alive and his heart was beating.
The cause of death, she opined, was multiple traumatic injuries caused by
someone else: specifically, 12 to 13 head injuries caused by an object or
objects, not heavy enough to fracture the skull, with smooth edges and
curves. The black phone found at the scene had curves and edges consistent
with the injuries and could have caused them. There was bleeding inside the
skull while Sheahan was alive, but not enough to have caused death by itself.
The stress of being attacked and hit in the head multiple times and the blood
loss from the head and wrist injuries, combined with Sheahan’s emphysema
and heart disease or bad heart rhythm, may have caused his heart to stop.
Dr. Moffat placed Sheahan’s cause of death a day or two before the
morning of Monday August 14, 2017, when his body was found. The
condition of the body was consistent with being struck on the head on the
morning of Saturday August 12, 2017, and dying sometime later. It was less
likely that he died on the morning of Monday August 14, 2017, because the
lividity was fixed, the body had no rigor and it had skin slippage.
A forensic toxicologist testified that blood and urine samples from
Sheahan’s body contained no alcohol or nicotine. Morphine, Valium, an
antidepressant, caffeine and drugs for sleep and nausea were found, all
within the normal therapeutic range.
San Francisco Police Department Criminalist, Amy Lee, testified about
DNA evidence. Phillips’s DNA was not found in or on the bloody rubber and
latex gloves found at the scene.2 Nor was it found on other objects found at

2 Only Sheahan’s DNA was positively identified on the latex gloves.
The yellow rubber gloves contained Sheahan’s DNA, Phillips was excluded as

6
the scene, such as lighters, a flashlight and a knife handle, which had
Sheahan’s DNA on them.3 Blood stains on the inside of the black and red
Trader Joe’s bag found in Phillips’s car tested positive for Sheahan’s DNA.
There was no DNA of Sheahan’s found elsewhere in Phillips’s car or on other
items found in the car. Dark gloves found in Phillips’s home and car
contained only his blood and non-blood DNA and no DNA of Sheahan’s. Two
of the three pairs of cargo pants seized from Phillips’s residence tested
negative for blood and were not tested for DNA.
Sergeant Lyn O’Connor was qualified as an expert in crime scene
investigations and bloodstain pattern analysis. She testified with the use of
video and photographs showing the uncontaminated crime scene to
supplement her observations. In her opinion, all the blood in Sheahan’s
apartment was from a singular event. The bloodstains on the bookshelf, fan,
wall, a basket and papers were from blood that was both impact and cast off
from multiple injuries to the back of Sheahan’s head. The black phone
handset could have caused the blood spatter from the blunt force trauma
injuries to Sheahan’s head. Sheahan could have been struck while upright
and received additional blows to the head while he was face down with his
head turned to the side. The body had been moved after the head injuries
were inflicted, and blood from the head had pooled as the bleeding continued.
Pooled blood came from the head (not the wrist) injuries, and the bleeding
may have occurred over a long time.
The assailant likely had at least some blood spatter on his or her
clothing. If someone stepped in or knelt on the pooled blood, that person

a major contributor and there were DNA alleles of a third person indicating
that person had worn the gloves at some point in time.
3 Non-blood DNA of an unidentified person was found on one of the
lighters.

7
could have gotten a transfer stain on his or her clothing. A video recording
showing Phillips with a stain on his left pant leg was consistent with blood
transfer staining. The lack of blood spatter visible on Phillips’s clothing did
not cause O’Connor to doubt that he could have been the person who inflicted
the injuries on Sheahan.
A computer expert determined that Sheahan’s computer was used on
August 11, 2017, and was last used on August 12, 2017, at 4:46 a.m.
Sheahan’s caregiver, Mary Adina, testified that she began working
with him for four hours each day from Monday through Friday after he got
out of the hospital. She last saw him on a Friday and was told the following
Monday that he had passed away. That Friday, he used his computer and
gave her his mailbox key to retrieve his mail. Adina returned the mailbox
key to him when she brought him his mail. Sheahan told Adina he was
happy that day because a friend or friends were coming over on the weekend
to take him out for a walk. That day, Adina cleaned Sheahan’s kitchen, made
the bed, organized his refrigerator and mopped the floors and left his
apartment at 4:00 p.m. Sheahan was alive and well when she left and was
not injured, although he had trouble breathing. There was no blood on the
carpets, broken knife in the kitchen, and the kitchen window was not open.
Adina had never used or seen yellow rubber gloves or white latex gloves in
Sheahan’s apartment. Nor did she ever see a flashlight, white hair pick,
detached knife blade or handle or cigarettes or lighters there. She had never
seen Sheahan smoke and she never smoked in his apartment. Neither she
nor Sheahan ever opened his kitchen windows.
Sheahan had told Adina earlier in August that he was not going to lend
money to a friend who wanted to borrow money to send to the Philippines.

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 A neighbor who lived in the apartment next door to Sheahan’s testified
that she was in that apartment over the weekend from Friday
August 11, 2017, to Monday August 14, 2017. At some point in the week or
on the weekend that Sheahan died, she noticed that Sheahan’s front window
was open. Over the five months she had been living next door to him, she
had never previously seen Sheahan’s window open.
Sheahan’s nurse Tumandao testified that she visited Sheahan’s
apartment once or twice a week to administer Morphine and Ativan and to
teach him symptom control. She never used yellow rubber gloves, white latex
gloves or towels at Sheahan’s apartment. Nor did she remember seeing a
white hair pick, detached knife blade or handle or lighter there. She last saw
Sheahan on Friday August 11, 2017, at around 4:00 or 5:00 p.m.
Sheahan’s friend Jacqueline Buckley testified that she had known him
since 1992, when they worked for the same city agency, and after he retired
in 2005 saw each other monthly for lunch and a movie or museum visit. They
were “[p]retty close.” Sheahan did not have a car, so Buckley drove him to
medical appointments, including for surgeries and, after he was diagnosed
with lung cancer in June 2017, for chemo treatment.
Buckley had met Sheahan’s brother, Tom,4 and his wife, Sherry, twice
when they visited from Minneapolis several years earlier. After Tom told her
Sheahan had suffered a bad reaction to chemotherapy and was in the
hospital, she visited him there and visited him weekly after he returned to
his apartment in July. She last saw Sheahan at his apartment on August 10,
2017. He seemed to be okay, meaning he was able to get up and walk around
and was in good spirits. The following Monday, Tom phoned and told her

4 We refer to Tom Sheahan by his first name for clarity and mean no
disrespect.

9
Sheahan had passed away over the weekend. Tom and Sherry came to San
Francisco for the funeral.
When Sheahan was in the hospital, he told Buckley he had a friend
named Mike and that Mike knew someone in the Philippines who could come
and be a caregiver for Sheahan after he went home. Mike wanted thousands
of dollars from Sheahan to bring that person from the Philippines to San
Francisco. Buckley advised against it, and Sheahan later told her he had
decided not to give Mike the money. Buckley heard Mike tell Sheahan on
speakerphone that he had found someone to give him the money and would
bring the person over from the Philippines so they could have a wedding in
October.
On Thursday, August 17, 2017, Sergeant Domenico Discenza, a
homicide investigator assigned to lead the Sheahan investigation, called and
left a message for Phillips, whose first name and phone number he had found
on a sticky note in Sheahan’s apartment attached to a resume for a caretaker
from the Philippines named Archie Fuscablo. Phillips returned the call early
that evening. The call was recorded. Phillips said he first learned about
Sheahan’s death from Discenza’s message. He told Discenza he had last
visited Sheahan on Friday August 11, 2017, after work at about 7:00 or
8:00 p.m. Phillips said he had a new job as a FedEx driver and did not stay
real long. He usually stayed from 30 to 45 minutes. Phillips said that when
he visited Sheahan, he would buzz Sheahan from the front door to the
building and Sheahan would open it. Sheahan could not go out by himself,
and he and Sheahan had talked about him coming over to take Sheahan
outside using the elevator.
Discenza later obtained video footage from several security cameras
placed around the apartment building in which Sheahan had lived for the

10
period from Friday August 11, 2017, at about 1:00 p.m., to Monday
August 14, 2017, at about 10:00 a.m. The recordings showed that, contrary to
what he had told Discenza, Phillips did not visit Sheahan on Friday
August 11, 2017. During that three-day period, the video first showed
Sheahan arriving at the apartment building on Saturday August 12, 2017, at
about 10:21 a.m. The video showed him arriving at the front door, going to
the call box, waiting for about 25 seconds, appearing to have been buzzed in
and entering the lobby of the apartment building. He was wearing dark
cotton gloves, light colored cargo pants, a red sweatshirt with a hood and a
Jurassic Park t-shirt, and he was carrying a black and red Trader Joe’s bag.
At 11:47 a.m. the same day, Phillips walked down the stairs in the building
holding the same bag. There was a stain on his left pants leg that had not
been there when he arrived.
Phillips reentered the building at 12:05 p.m. still carrying the red and
black bag. This time and all subsequent times, he let himself in with a key.
He left the building again at about 12:20 p.m. with the red and black Trader
Joe’s bag and a second, multicolored Trader Joe’s bag. He reentered around
12:42 p.m. carrying both bags and left about four hours later, at 4:44 p.m.
with both bags. There was now a second stain on his left pant leg, just above
the left knee.
Both stains remained on Phillips’s pants as he reentered the building
at around 5:20 p.m., left at 7:58 p.m., reentered again at 8:01 p.m. and left for
the day at 8:52 p.m. When he left the final time, he had both Trader Joe’s
bags and also a banker’s box without a lid. In some, but not all, of his exits
and reentries that Saturday, Phillips was wearing dark colored gloves like
the ones he first entered with that morning.

11
 Discenza opined that the first stain seen on Phillips’s pants was
consistent with blood, and that it was a blood stain. O’Connor, the expert on
bloodstain spatter analysis, testified she did not know what the stains seen
on Phillips’s pants in the videos were, but that they were consistent with
blood or any other dark liquid. A person who knelt in blood could transfer
blood onto his clothing.
Discenza obtained footage for Saturday August 12, 2017, from a
surveillance video camera at a Wells Fargo Bank branch about seven or eight
blocks away from Sheahan’s apartment. This footage was shown to the jury
while Discenza was testifying. It showed Phillips going to two different ATM
machines between 12:04 p.m. and 12:06 p.m. and attempting to use a PIN
number at one of them.
The apartment building security video footage showed that Phillips
returned to the building at 9:31 a.m. on Sunday August 13, 2017, carrying
the multicolored Trader Joe’s bag and entering with a key. The video from
that day showed Phillips open a mailbox using a key, take mail out of the box
and go upstairs with the mail. At 10:00 a.m., he left again carrying the
multicolored Trader Joe’s bag, a white banker’s box containing three rolls of
paper towels, and a framed picture. He was not wearing gloves. He left the
building and did not return.
Police never found the key to Sheahan’s apartment building or the key
to his apartment door. Nor did they find the red-hooded sweatshirt or
Jurassic Park t-shirt Phillips was wearing on August 12, 2017. At his
residence, they did find three pairs of light-colored cargo pants, one of which
had bleaching on it and numerous pairs of black and brown knit gloves. They
also found the framed print Phillips had carried out of Sheahan’s apartment
on Sunday August 13, 2017.

12
 In the trunk of Phillips’s car, they found more pairs of brown or black
cotton gloves like those he had been wearing in the video and two Trader
Joe’s bags that looked like those he had carried into and out of Sheahan’s
apartment on Saturday August 12, 2017. The red and black Trader Joe’s bag
had blood stains inside that were later determined to be Sheahan’s blood.
The age of the bloodstains could not be determined. A bloodstain expert
opined that the stains inside the bag could have been transferred from a
bloody object that was placed inside it. There was no way to determine when
the blood had been transferred to the bag.
Discenza did not find Sheahan’s current wallet, Wells Fargo credit card
or checkbook at the crime scene. He found new pads of checks inside a box at
Sheahan’s apartment one of which had checks removed. Discenza learned
from Wells Fargo Bank that one of Sheahan’s Wells Fargo cards had been
used at an ATM for two attempted transactions at about 12:04 p.m. on
August 12, 2017, and that two of his checks had been cashed, one on
August 14 and another on August 30, 2017. Video footage he obtained from
the bank showed Phillips at two of its ATMs on August 12, 2017, from
12:04 p.m. to 12:06 p.m., wearing the same clothes he had been wearing in
the apartment building video from the same date.
At Phillips’s home, Discenza found some of Sheahan’s checks. He found
one, payable to Phillips and ostensibly signed by Sheahan, pinned to a
bulletin board in Phillips’s home office. He also found loan documents,
records of people to whom Phillips owed money, references to “Archie
Fuscablo” and a framed marriage certificate for Phillips and Fuscablo dated
October 30, 2017. At one of Phillips’s storage units, Discenza found a
cardboard box containing Sheahan’s wallet, driver’s license, credit cards,
membership cards and a mailbox key.

13
 Sheahan’s checking account records showed that on or before Monday
August 14, 2017,5 Phillips cashed Sheahan’s check number 640, in the
amount of $7,500 purportedly written by Sheahan to Phillips on August 1,
2017. They further showed that on or before August 30, 2017, Phillips
attempted to cash Sheahan’s check number 648, which he had purportedly
written to Phillips for $3,500 on August 30, 2017, but the check was declined
for insufficient funds. On or before September 1, 2017, he tried to cash check
number 649 for $4,000, but that check was also declined because there were
insufficient funds in Sheahan’s account.6
A forensic document examiner, Miriam Angel, compared handwriting
exemplars from Sheahan’s records and Phillips’s records and examined the
checks purportedly written by Sheahan to Phillips in August and
September 2017. The check found on Phillips’s bulletin board, check No. 653,
was definitely a simulation rather than something Sheahan actually wrote,
she opined, because three different pens were used to write it, it did not have
fluency in the amount of pressure applied during writing, there were breaks
where there should not have been, connecting strokes and proportional
heights were different from the Sheahan exemplars, and a printed “A” rather
than a cursive one was used for “August.” Some of the differences between
the original check and the exemplar also applied to the three copied checks,
which she opined probably were not written by Sheahan either.
Sheahan’s sister-in-law, Sherry Sheahan (Sherry), testified that she
and her husband (Sheahan’s brother, Tom), travelled from Minneapolis to

5 The dates we refer to are the dates the funds were deposited in
Phillips’s accounts, not necessarily the dates he presented them.
6 Smaller checks from Sheahan to Phillips in July 2016 and July 2017,
including three for $50 each and one for $650 with the notation “housing in
San Diego,” lacked any indicia of fraud.

14
San Francisco in July 2017 to see Sheahan, while he was in the hospital
being treated for side effects from chemotherapy. Tom arranged for home
health care for Sheahan and resolved financial and estate issues. Tom and
Sheahan had discussed Sheahan lending money to Phillips. Sheahan was
feeling better and thought he would have some more months to live.
Sheahan’s will left half his estate to Tom and half to their other brother and
did not leave anything to Phillips. When Sherry and Tom went to San
Francisco again for Sheahan’s funeral, they dealt with Sheahan’s affairs and
did not give Phillips permission to take any of Sheahan’s possessions or his
money or to cash his checks. Phillips did not attend Sheahan’s funeral.
A journal belonging to Sheahan was found at his apartment.
Handwritten entries from it were admitted in evidence. They indicated
Sheahan had at times been skeptical of Phillips’s friendship. He wrote about
having been invited by Phillip to spend time with him in San Diego in
July 2016, only to be left mostly to himself for the week he spent there.
Phillips failed to pick him up at the airport and, when they met for dinner the
night Sheahan arrived, informed Sheahan that he owed Phillips $650 for his
share of the rental of a large Victorian where the two were staying. At the
end of that week, Sheahan wrote that he was “feeling . . . mostly victimized
by [Phillips],” and wondered if Phillips had invited him to San Diego “just to
chip in for the rent on that fancy Victorian.” He wrote, “I think I was used—
exploited—and mostly abandoned. And I vow never to let this happen again.”
On October 28 of that year, Sheahan wrote “about a certain person I’ve
considered a friend—Mike Fillips [sic]—who I haven’t heard from since that
disappointing trip to San Diego.”
In a March 20, 2017 entry, Sheahan wrote, “Surprisingly, Mike Filips
[sic] called for no particular reason, but he talked about his Filipino boyfriend

15
coming to America soon as his visa is in order.” He worried that Phillips was
“being taken for a sucker.” On April 23, 2017, he wrote that Phillips had
called “to check on my health and—perhaps more so—to see if I was willing
to come over to his place to monitor his sidewalk sale. I said I wasn’t up to it.
Mike is anxiously awaiting his friend’s arrival in S.F. to take up residence
here and partner with him. It looks like a shaky relationship—a big gamble
for Mike, who is not well fixed financially to take on a new relationship. I
wonder if his recent friendliness toward me is a prelude to hitting me up for
aid.”
On April 29, 2017, he wrote about a call he received from Phillips
“thinking he was sincere about my health & offering to give me a ride home
from doctors’ appointments; however, when the conversation turned to his
Philipino [sic] friend I wondered if I was being duped into a loan. Supposedly
Fredey [sic] was injured at the carwash in the Philipines [sic]. His finger got
slammed in a door & required hospitalization, but the government health
insurance wouldn’t pay for his bills and that could lead to imprisonment
under the Philipino law. In short, Freddy needs $1400 to cover his bills &
Mike doesn’t have it & can’t get it from anyone or anywhere. At that point, I
felt a bite being put on me. I explained that I was facing uncertain times &
couldn’t put out any money. Mike said he understood, but I don’t believe his
story, and I don’t give loans to anyone. Still, the idea of my being solicited for
money leaves me uneasy. [¶] I have the rest of this weekend to think about
my situation.”
Discenza obtained MoneyGram and Western Union reports revealing
that Phillips transferred about $62,000 to the Philippines between
July 19, 2016, and October 1, 2017. Of that, $55,390 was sent to Archie
Fuscablo and $3,650 to a Michael Francia Escara in Manila. Discenza

16
obtained financial records reflecting transactions between Phillips and
Fuscablo made through a PayPal subsidiary (Xoom), Western Union and
MoneyGram.
Telephone records showed that on August 12, 2017, Phillips made a 48-
second call to Sheahan’s land line at 10:03 a.m. and there also was an 11-
second call to Sheahan’s land line at 10:28 a.m. from the callbox in front of
his building, and that there were no further calls from Phillips’s cell phone to
Sheahan’s land line after that date.
On November 22, 2017, Discenza arrested Phillips and took his DNA
sample and cell phone. He recorded an interview of Phillips on the same day.
Phillips’s hair was gray, rather than the brown color it had been on the video
of him at Sheahan’s apartment. Asked about the checks he had cashed and
attempted to cash on Sheahan’s account after his death, Phillips told
Discenza that Sheahan was dying and had given him money because he knew
Phillips needed financial help. He explained that Sheahan had given him
three checks with different dates and would move money from one account to
another over the next few months so that Phillips could cash them. He first
said Sheahan had given him several hundred dollars on each check with the
intent that Phillips would receive a total of $20,000 by the time he died. He
then said the checks might have been for thousands, rather than hundreds,
to total $20,000. Sheahan post-dated the checks because he did not have
enough money in his account to give the funds to Phillips all at once. Phillips
did not ask Sheahan for the money; Sheahan volunteered. After Phillips got
a call saying Sheahan had died, he cashed the checks he hadn’t already
cashed. The last one bounced. Phillips denied having written any of the
checks himself. Phillips also said Sheahan gave him a picture that he liked,

17
which he then sold for $30 or $40 at an “estate sale” he was doing out of his
home.7
Phillips also told Discenza that his husband was coming over from the
Philippines and was going to be a caregiver for Sheahan, and that Sheahan
had liked the idea. Phillips said he had talked with Sheahan about taking
Sheahan out for a walk but he never did it because Sheahan was too weak,
and that Sheahan didn’t give him keys to Sheahan’s apartment but might
have let him use Sheahan’s spare keys. Phillips denied having Sheahan’s
ATM card.
Shown a photograph of himself entering Sheahan’s apartment building,
he agreed the photo was of himself and acknowledged that he used to color
his hair. The gloves he was wearing in the photo were ones he wore at work
and everywhere. He did not remember being at Sheahan’s apartment on a
Saturday for hours or going to the Wells Fargo ATM that day, but it might
have happened and Sheahan sometimes sent him to the ATM to get cash for
the caregiver. Phillips did not remember having a whole weekend off or
being at Sheahan’s apartment on a Sunday. But he might have been there if
Sheahan had called him. He thought he was changing light bulbs, wiping up,
cleaning out Sheahan’s refrigerator. Sheahan was embarrassed that his
apartment was so dirty and asked Phillips to clean it. Phillips also explained
the stain on his pants probably was from food resulting from cleaning
Sheahan’s refrigerator. It was not blood, because Phillips had not cut
himself. When Phillips left Sheahan’s apartment, Sheahan was alive and
had no injuries. Discenza pointed out that when he had spoken on the phone
with Phillips shortly after Sheahan’s death, Phillips had not remembered
spending the whole weekend with Sheahan, cleaning out his apartment, or

7 The picture was found in Phillips’s apartment building.

18
going to the ATM but had remembered only being there for about 20 minutes
on a Friday. Phillips told Discenza his fiancé’s life was in danger in the
Philippines and they needed money to bring him to the United States. This
was why his Facebook page had a June 15, 2017 post stating he was “in
desperate need of personal loans to save a life.”
Discenza discovered Facebook messenger communication between
Phillips and Archie Fuscablo. On Friday August 11, 2017, Phillips sent a text
to Fuscablo that said, “my old schedule at TJ’s had me off on wed and thur
but now i am off on Sat and Sun[.]” Later that day, Phillips wrote, “When i
wake up in morning i will start on process of sending soem [sic] money while
you sleep . . . .” On Saturday August 12, 2017, at 8:36 p.m., Fuscablo wrote
Phillips, “how was payment money, my live [sic]?” Phillips responded at 9:18.
p.m., “I fought hard all day and got money gram money to send you.”
Discenza also found a Go Fund Me social media account Phillips created
around September 25, 2017, seeking money for Fuscablo.
While searching Phillips’s home, Discenza found a box under Phillips’s
bed containing a vehicle registration card in the name of a Gene Levy and
medication with Levy’s name on it. He learned that Levy had lived in an
apartment on Sacramento Street during the time Phillips worked there as an
assistant resident manager. Levy had died of cancer and there had been a
police report in May 2014 of a burglary at Levy’s apartment.
The officer who investigated that burglary in May 2014, Sergeant Jim
Serna, testified. Levy had died in April 2014. The reporting party, Lois
Clark, called from out of state and gave the report over the phone. On
May 24, 2014, Serna met with a person named Michael Phillips who was the
property manager at the Sacramento Street apartment building where Levy
had lived. Serna identified Phillips at trial. Serna asked to go into Levy’s

19
apartment because he wanted to see if there were any signs of forced entry or
foul play. Phillips took him to the apartment and let him and a fellow officer
in with a key. Phillips had told Serna he thought the suspect gained entry
through an open window in the apartment’s bathroom that was next to a fire
escape. He told them the window had been open. The officers found no
evidence of forced entry or damage to the apartment door or to any window,
and the fire escape could not be reached from the ground level. Phillips
denied knowing what had been stolen. When Serna relayed to him what the
reporting party had said, Phillips responded that Lois Clark would not know
whether the window had been locked because it had been covered by a
curtain and she couldn’t have seen it.
Discenza searched a law enforcement database and determined that
Phillips did not own any firearms but had sold two firearms to a Mountain
View gun dealer, a 40-caliber Glock and a 9-mm. Beretta. The guns had
belonged to Gene Levy. The dealer, Gary Kolander, testified that on
March 1, 2017, he purchased two guns from Phillips for about $250 or $300
each, after Phillips said he owned them.
Discenza found in Phillips’s bank records deposits of two checks, one for
$3,000 and one for $4,500, from a Peter Schildhause. Schildhause testified
that he purchased six paintings from Phillips on E-Bay in two lots, for $3,000
and $4,500. Phillips had told him an uncle died and left him the paintings.
Phillips said he was selling the paintings to help a Filipino man with whom
he was in love. Months later, Phillips asked to see the paintings and, when
Schildhause got together with him, asked for money to help his boyfriend in
the Philippines pay his bills. Schildhause loaned him $1,000, which Phillips
had not repaid. Months later, police came and took the paintings.

20
 In the November 2017 interview with Discenza, Phillips said he had
been a manager at the building where Levy lived but had been fired for no
reason. He had keys to all the apartments when he worked there. He met
Levy’s family, who told him not to take anything from Levy’s apartment and
who later reported that some of Levy’s property, including the two guns
Phillips had sold, had been stolen. Phillips admitted receiving and selling a
gun or guns from a tenant who had been sick and died, but denied that he got
guns from Levy. Phillips did not remember where he got guns and denied
knowing they had been reported stolen. He said the paintings he sold to
Schildhause were given to him by his former boss at the apartment building,
Barbara Brooks. But he said Brooks did not give him anything from Levy’s
apartment, and he did not know the guns or paintings were reported stolen.
Brooks testified that she and her husband had owned the apartment
building on Sacramento Street where Phillips lived and served as resident
manager for several years. When tenants passed away, she never took any of
their possessions or gave any of their possessions to Phillips.
B. Defense Evidence
A defense private investigator, Keith McArthur, testified that when he
stood on the fire escape located outside Sheahan’s kitchen window, he could
touch the hotel building next door. He testified that someone from a platform
of the hotel could easily get to that fire escape. Prosecution police officer
witnesses acknowledged that fact on cross-examination, admitted there were
window screens lying on the platform of the hotel near the fire escape that
had not been taken into evidence and admitted that the kitchen window
opening was large enough for a person to fit through and a potential point of
entry to Sheahan’s apartment. The apartment manager for Sheahan’s
building testified on cross-examination that she saw a filled trash bag from
Sheahan’s apartment lying out of place in the middle of the courtyard to

21
which the fire escape led. The cameras that showed the inner courtyard did
not record Phillips ever appearing in or near it.
A woman who was housesitting in an apartment in Sheahan’s building,
Holly Howard, testified that on the night of Sunday August 13, 2017, or
Monday August 14, 2017, she was awakened in the late night or early
morning hours by the sound of yelling. She described the yelling as sounding
like people arguing after leaving a bar and said it could have come from
outside or inside the building.
Video footage from a surveillance camera on Sheahan’s apartment
building showed a lit object floating down from the front of the apartment
building to Bush Street at 2:29 a.m. on Monday August 14, 2017.
One of the medical examiners who came to the scene of Sheahan’s
apartment on Monday August 14, 2017, testified that Sheahan’s body was not
emitting odors and was slightly warm to the touch and that rigor mortis was
breaking with slight pressure and livor mortis was blanching. The other
medical examiner testified similarly about no odors outside the door and
testified that inside the apartment he smelled only the faint flatulence type
odor that emanates from any dead body and did not smell the odor of
decomposition. A paramedic who responded to the scene testified that she
did not smell anything outside Sheahan’s apartment door and that once
inside she did not recall smelling the powerful and distinctive odor of a
deceased body. Nor did she see any insects of the kind paramedics often see
around dead bodies.
A police officer who had testified about use of Sheahan’s computer,
testified that on the early morning of August 12, 2017, the user was looking
up on the Internet how to hang a picture on a wall.

22
 Sutter Health medical records pertaining to Sheahan’s hospitalization
in June and July 2017 contained nurse and social worker notes indicating
that Sheahan’s friend Mike was in the hospital room when they were
discussing assistance and support for Sheahan when he returned home and
later when Sheahan was being released and that the nurse spoke with Mike
about “discharge planning options in detail.” The notes also indicated that
Sheahan “said he was thinking of hiring a caregiver recommended by a
friend, but that person ‘still has to get a flight.’ ”
Entries in Sheahan’s 2017 journals indicated Phillips had called to
follow up on Sheahan’s “offer to turn over most of my giant porn video
collection” which Sheahan was “glad to get rid of” and “would not want my
relatives or whoever to discover.” An August 1, 2017 entry said it was
“gratifying to have people come & visit me,” that Phillips had come over that
morning and that Phillips had “retrieved a package awaiting me.” An entry
on August 4, 2017, indicated Phillips had called and come over and, “while
here, he fixed that kitchen light” and “also retrieved my mail, which
contained another caretaker bill. Hope all that changes; but, Mike has
turned out to be a very good friend. God bless him! Onward!” On
August 9, 2017, Sheahan wrote that Phillips had “called to see how I was
doing.”
Telephone records showed Phillips and Sheahan had called each other
22 times between July 6 and August 5, 2017.
III.
The Verdict and Post-Verdict Proceedings
The jury heard testimony of 37 witnesses, saw and heard video and
audio evidence along with telephone records, medical records, photographs
and other evidence. The evidence was presented over 14 trial days, followed

23
by instructions and closing arguments over a day and a half. The jury
deliberated for nine to ten hours over two days,8 before reaching a verdict.
The jury found Phillips guilty on nine counts, found true two special
circumstances and found true four special allegations. Specifically, it found
Phillips guilty of first degree murder with the special circumstances that the
murder was committed during a robbery or attempted robbery and during a
burglary or attempted burglary; it found him guilty of aggravated mayhem; it
found him guilty of inflicting injury on an elder or dependent adult and found
true the allegation that Sheahan suffered great bodily injury; it found
Phillips guilty of first degree robbery and found true the special allegation
that in committing the robbery he inflicted great bodily injury on a person
70 years old or older; it found him guilty of two counts of first degree
burglary, and as to one of those, found true the allegations that he inflicted
great bodily injury on a person 70 years old or older and committed the
burglary when another person was present in a residence; finally, it found
him guilty of theft, embezzlement, forgery or fraud on an elder and
dependent adult, manufacture, possession or utterance of fraudulent
documents, and theft of an access card. It failed to make a finding on a tenth
count for receiving stolen property, and that count was dismissed.
Phillips moved for a new trial on several grounds, including some he
has raised again on appeal. The trial court denied the motion. It sentenced
Phillips to life without parole on the murder with special circumstances
conviction and a consecutive determinate sentence of six years and eight
months for the second burglary conviction and the fraudulent financial

8 The deliberations began mid-afternoon on October 16, 2018,
continued for a full day on October 17, 2018, followed by a half day on
October 18.

24
documents convictions. It stayed the sentences on the other counts under
section 654.
DISCUSSION
I.
The Trial Court Did Not Err by Admitting the Levy Prior
Uncharged Crimes Evidence.
Phillips contends the trial court erred in admitting evidence of his
burglary and theft of paintings and guns from Levy and his staging of Levy’s
apartment to look like there had been a burglary by leaving windows,
including one leading to a fire escape, open in Levy’s apartment. He argues it
was error to admit the evidence under Evidence Code section 1109 to show a
propensity to commit elder abuse because Levy was not an “elder” within the
meaning of that section. He further contends the trial court erred in
admitting the evidence under Evidence Code section 1101, subdivision (b), to
show knowledge, intent and common plan or scheme.
The People contend the trial court did not admit the evidence under
Evidence Code section 1109, but only admitted it under Evidence Code
section 1101, subdivision (b) to show intent, common scheme or plan. The
court’s reference to Evidence Code section 1109, in their view, “appears to
have been a misstatement,” given its earlier statement that it was admitting
the Levy evidence only under Evidence Code section 1101, subdivision (b).
The People point out that the court instructed the jury this evidence could be
used only to show intent, knowledge and common plan or scheme and not for
any other purpose, precluding its consideration as showing a propensity to
commit the crimes charged. The People contend the trial court properly
admitted the Levy evidence under Evidence Code section 1101,
subdivision (b) to prove intent, knowledge and common plan or scheme.

25
 A. Evidence Code Provisions and Case Law
As a general rule, evidence of a person’s character, including his prior
conduct, is not admissible to prove his propensity to commit a crime with
which he is charged. Evidence Code section 1101, subdivision (a), states,
“Except as provided in this section and in [Evidence Code] Sections 1102,
1103, 1108, and 1109, evidence of a person’s character or a trait of his or her
character (whether in the form of an opinion, evidence of reputation, or
evidence of specific instances of his or her conduct) is inadmissible when
offered to prove his or her conduct on a specified occasion.”
The general rule against using evidence of prior misconduct to show
propensity does not preclude its use for other purposes. Evidence Code
section, 1101, subdivision (b) states, “Nothing in this section prohibits the
admission of evidence that a person committed a crime, civil wrong, or other
act when relevant to prove some fact (such as motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or accident, or
whether a defendant in a prosecution for an unlawful sexual act or attempted
unlawful sexual act did not reasonably and in good faith believe that the
victim consented) other than his or her disposition to commit such an act.”
The Legislature has also created exceptions to Evidence Code
section 1101, subdivision (a) for certain kinds of cases, allowing the use of
prior misconduct to show propensity. One of those, Evidence Code
section 1109, subdivision (a)(2), creates such an exception for “criminal
action[s] in which the defendant is accused of an offense involving abuse of an
elder or dependent person.” With exceptions not relevant here, in a criminal
action alleging elder or dependent abuse, “evidence of the defendant’s
commission of other abuse of an elder or dependent person is not made

26
inadmissible by Section 1101 if the evidence is not made inadmissible
pursuant to Section 352.” (Evid. Code, § 1109, subd. (a)(2).)
Evidence Code section 1109 defines “ ‘[a]buse of an elder or dependent
person’ ” as “physical or sexual abuse, neglect, financial abuse, abandonment,
isolation, abduction, or other treatment that results in physical harm, pain,
or mental suffering, the deprivation of care by a caregiver, or other
deprivation by a custodian or provider of goods or services that are necessary
to avoid physical harm or mental suffering.” An “elder” is defined in the elder
abuse statute as “a person who is 65 years of age or older.” (§ 368, subd. (g).)
We will focus first on Evidence Code section 1101, subdivision (b)
because, as we shall discuss, ultimately the jury was instructed it could use
the Levy evidence only in deciding whether Phillips (a) intended to deprive
Sheahan of his property, (b) knew he did not have Sheahan’s consent to take
that property and (c) had a plan or scheme to commit burglary and theft
against Sheahan. The jury was instructed, “Do not consider this evidence for
any other purpose.”
“Evidence of prior criminal acts is admissible ‘when relevant to prove
some fact (such as motive, opportunity, intent, preparation, plan,
knowledge . . .),’ but not to prove the defendant carried out the charged
crimes in conformity with a character trait. (Evid. Code, § 1101.) ‘To be
relevant on the issue of identity, the uncharged crimes must be highly similar
to the charged offenses. . . . [¶] . . . [¶] A lesser degree of similarity is required
to establish relevance on the issue of common design or plan. . . . [¶] The least
degree of similarity is required to establish relevance on the issue of intent.
[Citation.] For this purpose, the uncharged crimes need only be “sufficiently
similar [to the charged offenses] to support the inference that the defendant

27
‘ “probably harbored the same intent in each instance.” [Citations.]’ ” ’
[Citations.]” (People v. Lewis (2001) 25 Cal.4th 610, 636-637.)
“ ‘The presence of a design or plan to do or not to do a given act has
probative value to show that the act was in fact done or not done.’ [Citation.]
For example, a letter written by the defendant stating he planned to commit
a certain offense would be relevant evidence in a subsequent prosecution of
the defendant for committing that offense. [Citation.] The existence of such
a design or plan also may be proved circumstantially by evidence that the
defendant has performed acts having ‘such a concurrence of common features
that the various acts are naturally to be explained as caused by a general
plan of which they are individual manifestations.’ [Citation.]” (People v.
Ewoldt (1994) 7 Cal.4th 380, 393-394 (Ewoldt).)
In general, evidence of uncharged crimes is relevant to prove identity,
common design or plan, or intent if the charged and uncharged crimes are
sufficiently similar to support a rational inference of the ultimate fact or facts
for which the evidence is offered. (Ewoldt, supra, 7 Cal.4th at pp. 402-403.)
“On appeal, the trial court’s determination of this issue, being essentially a
determination of relevance, is reviewed for abuse of discretion.” (People v.
Kipp (1998) 18 Cal.4th 349, 369.)
Even if evidence of a defendant’s prior uncharged offenses is relevant,
it may not be admitted in contravention of “ ‘other policies limiting
admission, such as those contained in Evidence Code section 352.’ ” (Ewoldt,
supra, 7 Cal.4th at p. 404.) Under the latter section, even if relevant, other
crimes evidence must be excluded if its probative value is “ ‘substantially
outweighed by the probability that its admission [would] . . . create
substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.’ ” (Id. at p. 404, citing Evid. Code, § 352.)

28
 “ ‘ “The code speaks in terms of undue prejudice. . . . ‘ “The ‘prejudice’
referred to in Evidence Code section 352 applies to evidence which uniquely
tends to evoke an emotional bias against the defendant as an individual and
which has very little effect on the issues. In applying section 352,
‘prejudicial’ is not synonymous with ‘damaging.’ ” [Citation.]’ [ Citation.] [¶]
The prejudice that section 352 ‘ “is designed to avoid is not the prejudice or
damage to a defense that naturally flows from relevant, highly probative
evidence.” [Citations.] “Rather, the statute uses the word in its etymological
sense of ‘prejudging’ a person or cause on the basis of extraneous factors.
[Citation.]” [Citation.]’ [Citation.] In other words, evidence should be
excluded as unduly prejudicial when it is of such nature as to inflame the
emotions of the jury, motivating them to use the information, not to logically
evaluate the point upon which it is relevant, but to reward or punish one side
because of the jurors’ emotional reaction. In such a circumstance, the
evidence is unduly prejudicial because of the substantial likelihood the jury
will use it for an illegitimate purpose.” [Citation.]’ [Citation.]” (People v.
Scott (2011) 52 Cal.4th 452, 490-491.)
As with the issue of relevance, we review under the abuse of discretion
standard the trial court’s determination whether the undue prejudice
outweighs the probative value of the evidence. (See Ewoldt, supra, 7 Cal.4th
at p. 405.)
B. Relevant Proceedings
Prior to commencement of the trial, the People sought to introduce
evidence of prior uncharged misconduct by Phillips, including his alleged
theft from his former employer, Trader Joe’s, that led to the termination of
his employment there; his alleged theft of property from a deceased man
named Columbus George shortly before or after his death when Phillips was

29
a building manager for the Sacramento Street building where George lived;
his alleged theft from a man named Ramon Garcia; and his alleged theft of
property from a deceased man named Gene Levy, who had lived in the Bush
Street building managed by Phillips. The People sought to introduce this
evidence under Evidence Code section 1101, subdivision (b) to show Phillips’s
intent, motive, absence of mistake and common plan or scheme in robbing
Sheahan. The People also argued the evidence regarding George and Levy
was admissible as propensity evidence under the elder abuse exception
provided in Evidence Code section 1109, subdivision (a)(2).
Phillips sought to exclude all evidence of his prior bad acts in a motion
in limine.
The trial court requested that the People provide details regarding this
evidence. As to Levy, the People explained that Phillips had been an
assistant property manager of the building where Levy lived and had access
to his apartment. When Levy’s family members came to San Francisco to
take Levy back to Florida to die, Levy provided them with information about
items of value they should come and collect after his death. While there,
Levy’s family members met Phillips in his capacity as assistant property
manager for the building. After Levy died, his family returned to retrieve his
belongings and found the apartment had been burglarized. A window had
been left open and it looked like a break-in, but it seemed suspicious because
Phillips was aware of where Levy kept some items of value. The family
members provided information to the police. The items of value Levy had
told them about had been stolen, and were later found by police either in
Phillips’s possession or having been sold to third persons. The court asked
whether family members would testify about these events, and the People
initially responded that they would.

30
 The court initially indicated its intent to allow evidence of the thefts
from Levy to show intent and common scheme or plan under Evidence Code
section 1101, subdivision (b), observing that Levy’s apartment “appear[ed] as
if it had been burglarized in very much a similar manner to Mr. Sheahan’s
abode, so I think again it’s up to the jury to decide, one, if they believe this;
and two, if they do, it only goes to those two things [intent and common plan
or scheme] and nothing else.” The court expressed doubt about allowing it in
under Evidence Code section 1109 because the items “[were not] taken while
Mr. Levy was there. Mr. Levy was gone.” We infer the court meant that the
requirement of the elder abuse statute that the abuse cause the victim to
experience mental or physical suffering could not be established. The court
excluded some of the other evidence (the alleged thefts from Columbus
George and from Trader Joe’s), and the People withdrew their request
concerning evidence of the Ramon Garcia theft, with the caveat that the
George and Trader Joe’s evidence could be used on rebuttal if Phillips
testified at trial.
The court held multiple hearings to consider these issues, and
ultimately, after holding an Evidence Code section 402 hearing regarding the
witness pertaining to George, decided to exclude the evidence of the George
incident. It did so because George’s daughter, who had been estranged from
him, could only speculate that the allegedly stolen property (the $5,000 check
of George’s that Phillips had cashed after his death, and the valuable items
belonging to George that were found in Phillips’s possession) was not given
by George to Phillips. The court stated it would admit the evidence of the
Levy incident. At one point, it stated it was admitting the Levy evidence
under both Evidence Code section 1101, subdivision (b) and section 1109. It
ruled the Levy evidence could be discussed in the People’s opening statement

31
over the defense objection that the People had admitted they were unable to
bring Levy’s family members to California to testify, accepting the People’s
argument that there was circumstantial evidence showing Phillips had stolen
the paintings and guns belonging to Levy.
During opening statements, the prosecution described the evidence of
the manner of Sheahan’s death, the video evidence linking Phillips to the
murder, the police investigation, the scene of the crime, the evidence of
Phillips’s relationship with Fuscablo and desire to bring him here from the
Philippines, his various efforts to raise money for that purpose, his attempts
to withdraw money from Sheahan’s account on the day of the murder, his
cashing checks not actually made out by Sheahan after Sheahan’s death, and
his communications with Fuscablo stating he “fought hard all day” to get
money to send Fuscablo after spending most of Saturday at Sheahan’s
apartment.
Then the prosecutor discussed the Levy evidence. He said, “You’re
going to learn that Mr. Sheahan wasn’t the first older person that Mr.
Phillips took advantage of, having worked as a resident manager, assistant
manager in a building in Nob Hill, . . . Sacramento [Street]. Mr. Phillips
worked there for a number of years, where there were some folks in later
years, one person is Gene Levy, who had been sick, had gotten cancer as well,
and eventually died of cancer. [¶] Fortunately for Mr. Levy, he was able to
travel out of state in the last days of his life, be brought by family, his sister
and brother-in-law to Florida where he passed; but having established a
relationship and a rapport with him, Mr. Phillips seized upon an opportunity
to gain access, which he had as a resident manager, to his apartment and
take his valuables. He took guns. He took coins and collectables. He took
paintings of great value. [¶] He had met some of the family members, and

32
then reported a burglary. Again, a window open, some circumstantial points
that suggest the possibility of a burglary that was random, and all of these
items gone, and yet through police work, we found out where they went. We
found out who they were sold to, found out who got the money and what he
did with it. These are the paintings to the tune of many thousands of dollars,
checks made out to Mr. Phillips having sold these items.”
Later in the opening statement, describing Discenza’s conversation and
interview with Phillips, the prosecutor again mentioned Levy, stating, “He
denies ever being in possession of items he knew to belong to Mr. Levy as
well. And with those lies and the other evidence, you will be presented with
proof that not only did he commit this heinous act but that he has a
propensity to manipulate or form relationships with people who are older or
more vulnerable because of their health.”
The trial court instructed the jury on the Levy evidence with a version
of CALCRIM No. 375. The instruction stated:
“The People presented evidence that Mr. Phillips committed the
offenses of burglary as defined in instruction 1700 and theft by larceny,
which is defined in instruction 1800 of Gene Levy that were not charged in
this case. You may consider this evidence only if the People have proved by a
preponderance of the evidence that Mr. Phillips in fact committed the
uncharged offense.
“Proof by a preponderance of the evidence is a different burden than
proof beyond a reasonable doubt. A fact is proved by a preponderance of the
evidence if you conclude that it is more likely than not that the fact is true. If
the People have not met this burden, you must disregard this evidence
entirely.

33
 “If you decide that the defendant committed the uncharged offenses,
you may, but are not required to consider this evidence for a limited purpose
of deciding the following:
“First, if Mr. Phillips acted with the intent to deprive James Sheahan
of his property permanently or to remove it from James Sheahan’s possession
for so extended a period of time that he would be deprived of a major portion
of the value or enjoyment of the property in this case;
And/or, two, that Mr. Phillips knew that he did not have James
Sheahan’s consent to take the property when he allegedly acted in this case,
and that James Sheahan’s property was stolen;
And/or three, that Mr. Phillips had a plan or scheme to commit
burglary and theft by larceny as alleged in this case.
“In evaluating this evidence, consider the similarity or lack of
similarity between the uncharged offenses and the charged offenses. Do not
consider this evidence for any other purpose. If you conclude that Mr.
Phillips committed the uncharged offenses, that conclusion is only one factor
to consider along with all the other evidence. It is not sufficient by itself to
prove that the defendant is guilty of Counts 1 through 10, and the People
must still prove each charge and allegation beyond a reasonable doubt.”
C. Analysis
1. The Trial Court Did Not Abuse Its Discretion by Admitting
the Levy Evidence Under Evidence Code Section 1101,
Subdivision (b).
The trial court instructed the jury it could consider the Levy evidence
to show Phillips intended to deprive Sheahan of his property, knew he lacked
Sheahan’s consent to take the property and had a plan or scheme to commit
burglary or larceny. Phillips complains that the trial court did not initially
state the evidence would be admitted for knowledge although it ultimately

34
instructed the jury it could consider it for that purpose. He contends the
Levy evidence was not relevant to the issue whether Phillips knew he did not
have Sheahan’s permission to take his property because “even if appellant
knew in 2014 that he did not have Levy’s consent to have his property, that
knowledge would not have provided appellant with any relevant information
regarding the entirely separate question of whether or not he had Sheahan’s
consent to have his property several years later.”
The People contend that knowledge that Sheahan’s property was stolen
was relevant to prove Count 10, the receiving stolen property charge, for
which knowledge that property is stolen is an element. They also argue such
knowledge was relevant to negate Phillips’s defense that the money he
obtained from Sheahan’s bank account was a gift. The People point to the
evidence that Phillips claimed the paintings he stole from Levy were a gift
from the building owner, which the building owner testified was untrue.
Phillips also denied having obtained guns from Levy and suggested to police
that anything reported stolen was taken by a burglar, though evidence
showed Phillips had sold guns that were registered to Levy. The People
contend this evidence “was highly probative of [Phillips’s] intent, knowledge,
and common plan or scheme.”
While the People do not spell out how, precisely, the Levy evidence
shows knowledge, their point seems to be that Phillips’s knowledge that he
stole the property from Levy while claiming it was given to him gave lie to his
similar claim that the money he obtained from Sheahan’s bank accounts was
given to him freely by Sheahan. This argument is different from the kind of
knowledge argument in cases such as those cited by Phillips, in which a
defendant did something a second or third time after presumably having
learned from an earlier incident that repeating the same conduct would pose

35
a similar risk or result in a similar outcome.9 But that was not the People’s
argument here. Rather, it was that Phillips did not act innocently; he took
items he claimed had been given to him but knew he lacked consent to take
them. In other words, his intentional theft of the paintings and guns from
Levy tended to show that he acted with the same felonious intent in taking
money and property from Sheahan.
In People v. Lisenba (1939) 14 Cal.2d 403, our Supreme Court held that
evidence that the defendant’s former wife met an untimely death under
circumstances similar to those surrounding the death of the defendant’s
current wife shortly after the defendant had purchased a life insurance policy
covering her life was admissible in the defendant’s trial for the murder of his
wife for the purpose of collecting the proceeds of insurance policies on her life.
(Id. at pp. 424-427.) Both wives had been found having drowned but were
determined on further investigation to have been victims of foul play. (Id. at
p. 427.) The evidence was admissible “not to prejudice the defendant by proof
of the prior commission of another crime but as tending to establish that the
death of the deceased in the present action was not accidental, as it might at
first appear, and as claimed by the defendant, but was the result of a general
plan or scheme on the defendant’s part to insure, marry and murder his

9 E.g., People v. Morani (1925) 196 Cal. 154, 158-159 (evidence that
unlicensed physician previously performed procedure on another woman that
caused her to miscarry admitted to show defendant knew procedure he
performed on victim of illegal abortion would have same effect); People v.
Ghebretensae (2013) 222 Cal.App.4th 741, 752-754 (evidence of prior
uncharged offense in which defendant threw bindles of cocaine base into
fountain admitted to show defendant’s knowledge of presence of contraband
and its illegal character and intent to sell, required elements of charged drug
offense), disapproved on other grounds in People v. Bryant (2021) 11 Cal.5th
976, 986, fn. 5.

36
victims in order that he might thereby profit financially.” (Id. at pp. 427-
428.)
Quoting a Michigan case, our high court stated, “ ‘ “ ‘ “it is clear that
where a felonious intent is an essential ingredient of the crime charged, and
the act done is claimed to have been innocently or accidentally done, or by
mistake, or when the result is claimed to have followed an act lawfully done
for a legitimate purpose, or where there is room for such an inference, it is
proper to characterize the act by proof of other like acts producing the same
result as tending to show guilty knowledge, and the intent or purpose with
which the particular act was done and to rebut the presumption that might
otherwise obtain.” ’ ” ’ ” (People v. Lisenba, supra, at p. 428.) The court
quoted a federal case distinguishing the “ ‘ “myriad of cases where evidence of
other and collateral transactions has been admitted to prove the quo animo,
scienter, motive, or intent of the defendant in the doing of a particular act.” ’ ”
(Id. at p. 428.) It reasoned that many of those authorities “ ‘ “would be
inapplicable to the present case, for there the evidence was introduced to
show knowledge, while here its purpose is to negative the claim of accident
and the alleged innocent motive, injected into the case by the defendant
himself. It is sufficient to say that from the earliest times the propriety of
admitting evidence for the purpose here stated has been fully recognized.” ’ ”
(Id. at pp. 428-429) “ ‘ “In each case the question is, and of necessity must be,
whether the evidence tendered has probative effect, logically and under the
doctrine of chances.” ’ ” (Id. at p. 429.)
The rule that evidence of prior acts to negative the claim of accident or
innocent motive is sometimes described as “the doctrine of chances.” (People
v. Spector (2011) 194 Cal.App.4th 1335, 1378 (Spector).) The idea is that
“ ‘Innocent persons sometimes accidentally become enmeshed in suspicious

37
circumstances, but it is objectively unlikely that will happen over and over
again by random chance.’ (Imwinkelried, An Evidentiary Paradox:
Defending the Character Evidence Prohibition by Upholding a Non-Character
Theory of Logical Relevance, the Doctrine of Chances (2006) 40 U.Rich. L.Rev.
419, 423.) ‘The doctrine does not ask the jurors to utilize the defendant’s
propensity as the basis for a prediction of conduct on the alleged occasion.
Instead, the doctrine asks the jurors to consider the objective improbability of
a coincidence in assessing the plausibility of a defendant’s claim that a loss
was the product of an accident or that he or she was accidentally enmeshed in
suspicious circumstances.’ (Id. at p. 439.)” (Spector, at p. 1379.) “ ‘This type
of evidence is admitted under several of the familiar category labels—absence
of mistake or accident, modus operandi, or plan or scheme—but probability
based reasoning underlies its relevance.’ ” (Ibid., quoting Cammack, Using
the Doctrine of Chances to Prove Actus Reus in Child Abuse and Acquaintance
Rape: People v. Ewoldt Reconsidered (1996) 29 U.C. Davis L.Rev. 355, 386,
fn. omitted.) As the court explained in People v. Jones (2011) 51 Cal.4th 346
(Jones), “the recurrence of a similar result tends to negate an innocent
mental state and tends to establish the presence of the normal criminal
intent.” (Id. at p. 371.)
“Like evidence of uncharged offenses admitted to prove intent, evidence
of such offenses offered to negate accident or mistake requires the least
degree of similarity with the charged offense.” (M. Simons, California
Evidence Manual (2022 ed.) § 6:17, p. 572, citing People v. Burnett (2003)
110 Cal.App.4th 868, 881.) Burnett, at pages 879-881, is a good example.
There, the defendant was charged with animal cruelty for snatching a dog
from a car and throwing it onto a roadway. He claimed he had released the
dog accidentally after it bit him, and the court held evidence of an uncharged

38
incident in which the defendant beat a stray dog to death was properly
admitted to negate the claim of accident.
The Jones case bears a strong resemblance to the case before us.
There, the trial court admitted evidence of a prior robbery committed by a
defendant who was charged with first degree murders after stabbing a
husband and wife while committing an early morning burglary and robbery.
(See Jones, supra, 51 Cal.4th at pp. 351, 371-372.) To establish intent to
steal, the prosecution presented evidence of an incident eight years earlier in
which “defendant and a cohort robbed three men of their money at gunpoint”
as they were leaving a furniture store where they worked. (Id. at pp. 355,
371-372.) Our high court observed that the prior robbery and charged home
invasion murder “were not particularly similar, but they contained one
crucial point of similarity—the intent to steal from victims whom defendant
selected. Evidence that defendant intended to rob the [earlier] victims
tended to show that he intended to rob when he participated in the [currently
charged] crimes. This made the evidence relevant on that specific issue . . . .”
(Ibid.)
Here, the resemblance of the Sheahan burglary-murder to the prior
Levy burglary is considerably stronger than the similarity of the home-
invasion robbery murder to the prior street-side robbery in Jones. Both of
Phillips’s burglaries were from apartments. The victims, Levy and Sheahan,
both suffered from terminal cancer, a fact known to Phillips, who had
befriended them. Phillips had access to both of their apartments, albeit for
different reasons. He had been inside both men’s apartments. He took
valuable items from the apartments and staged random burglaries by
opening windows leading to fire escapes. In both instances, he denied the
thefts and claimed what he took had been gifts. He took money or valuables

39
he could readily sell. He also took items containing each victim’s personal
identifying information, storing them in his home or storage unit. The Levy
incident, which took place about three years before the Sheahan incident,
was sufficiently similar to support the inference that Phillips acted with the
same mental state at the time of the Sheahan incident: the intent to take
items of value that belonged to the victim or his family and the knowledge
that the takings were without consent. Stated otherwise, the Levy incident
tended to negate Phillips’s claim of innocent intent as to Sheahan—his claim
that Sheahan had given him the money and property. Indeed, his claims that
the owner of the building he managed gave him Levy’s paintings and some
other person gave him Levy’s guns were shown to be untrue, which tended to
prove his similar claim regarding the funds he took from Sheahan was
likewise untrue.
These similarities were also sufficient to support an inference that
Phillips was engaged in a common scheme of burglarizing the homes of
gravely ill people he had befriended, stealing money or items of value from
them and attempting to cover up his crimes by staging third-party burglaries.
“A greater degree of similarity is required in order to prove the existence of a
common design or plan[,]” but the “difference” is one “of degree rather than of
kind; for to be similar involves having common features, and to have common
features is merely to have a high degree of similarity.’ [Citations.] [¶] To
establish the existence of a common design or plan, the common features
must indicate the existence of a plan rather than a series of similar
spontaneous acts, but the plan thus revealed need not be distinctive or
unusual.” (Ewoldt, supra, 7 Cal.4th at pp. 402-403.)
That Phillips took Levy’s property after Levy’s family took him to
Florida to die does not undermine these inferences. Nor do the other

40
differences, which Phillips emphasizes, such as the fact that the burglaries
took place in different buildings, that Levy was 58 years old while Sheahan
was 75 or that Levy died from his illness whereas Sheahan was murdered.
In short, the trial court did not abuse its discretion in finding the Levy
evidence and the evidence regarding Sheahan were sufficiently similar to
support an inference that Phillips acted with intent, knowledge that he
lacked consent, and according to a common plan and scheme.
We next consider whether the court abused its discretion in
determining that the prejudice from the uncharged Levy incident
substantially outweighed its relevance. The in limine proceedings reflect
that the trial judge was both thorough and careful about admitting other
crimes evidence. She repeatedly expressed the need for caution because of
the prejudice such evidence can cause. She limited both what evidence she
admitted10 and, through her instruction to the jury, the purposes for which
she admitted it.
As we have stated, the “undue prejudice” with which Evidence Code
section 352 is concerned flows from evidence that “uniquely tends to evoke an
emotional bias against the defendant as an individual and . . . has very little
effect on the issues”—evidence “of such nature as to inflame the emotions of

10 As we have discussed, the court excluded evidence of another
incident involving a tenant at the Bush Street building (Columbus George)
from whom Phillips obtained and cashed a large check and whose guns
Phillips had sold. Other items belonging to George were found in Phillips’s
storage unit. Although the facts were quite similar to those in this case in
that Phillips cashed checks on the account of the deceased tenant after he
died, the court excluded the evidence for several reasons, including that the
evidence about whether George had given the money to Phillips was
speculative, and that admitting it would place a burden on Phillips possibly
forcing him to testify. The court held the probative value was thus slight and
was outweighed by the prejudice.

41
the jury, motivating them to use the information, not to logically evaluate the
point upon which it is relevant, but to reward or punish one side because of
the jurors’ emotional reaction.” (People v. Scott, supra, 52 Cal.4th at p. 491.)
It is “ ‘ “not the prejudice or damage to a defense that naturally flows from
relevant, highly probative evidence.” ’ ” (Ibid.) Evidence Code section 352
“requires the exclusion of evidence only when its probative value is
substantially outweighed by its prejudicial effect. ‘Evidence is substantially
more prejudicial than probative . . . [only] if, broadly stated, it poses an
intolerable “risk to the fairness of the proceedings or the reliability of the
outcome” [citation].’ [Citation.] ” (People v. Tran (2011) 51 Cal.4th 1040,
1047 (Tran).)
“[In Ewoldt, the court] identified several factors that might serve to
increase or decrease the probative value or the prejudicial effect of evidence
of uncharged misconduct and thus are relevant to the weighing process
required by Evidence Code section 352. [¶] The probative value of the
evidence is enhanced if it emanates from a source independent of evidence of
the charged offense because the risk that the witness’s account was
influenced by knowledge of the charged offense is thereby eliminated.” (Tran,
supra, 51 Cal.4th at p. 1047.) “On the other hand, the prejudicial effect of the
evidence is increased if the uncharged acts did not result in a criminal
conviction . . . because the jury might be inclined to punish the defendant for
the uncharged acts” and because the absence of a conviction increases the
likelihood of confusing the jurors, who will have to determine whether the
uncharged acts occurred. (Ibid.) “The potential for prejudice is decreased,
however, when testimony describing the defendant’s uncharged acts is no
stronger or more inflammatory than the testimony concerning the charged
offense.” (Ibid.)

42
 Here, the sources from which the Levy evidence emanated were
independent of the evidence of the charged offense. Levy’s family made a
police report of a burglary, which was investigated in 2014 well before the
charged offenses. Sergeant Serna—who investigated the Levy burglary,
spoke with Phillips and filed the report—did not investigate the charged
offenses. There was minimal, if any, risk that the accounts by Levy’s family
to Serna or the testimony of Serna about his 2014 investigation were
influenced by knowledge of the charged offenses. (See Ewoldt, supra,
7 Cal.4th at p. 404.)11
“On the other side of the scale, the prejudicial effect of [the Levy]
evidence is heightened by the circumstance that defendant’s uncharged acts
did not result in criminal convictions,” “increas[ing] the danger that the jury

11 Additional evidence was developed about the Levy incidents during
the investigation of this case, including in Phillips’s bank records, which
reflected the payments for the sale of guns and paintings; in searches of
Phillips’s property, which yielded Levy’s medications and vehicle registration
in Phillips’s storage locker; Phillips’s statements to Discenza about the guns
and paintings and his role as manager at the Sacramento Street building;
gun registration information Discenza obtained from a law enforcement data
base showing the guns Phillips sold had been registered to Levy. This
evidence, coupled with the Serna report, in turn, led to presentation of the
testimony of Brooks, Schildhause and Kolander. Brooks testified she did not
take or give Phillips any property of tenants who died. Schildhause testified
he bought six paintings from Phillips for $7,500. Kolander testified he
bought guns from Phillips, who said he owned them. Although the testimony
of these witnesses emanated in significant part from Discenza’s investigation
of this case, nothing about these witnesses’ brief testimony was
inflammatory, and there was corroborating evidence for their testimony, such
as the fact that Phillips had taken other items from Levy (his medications
and driver registration), that Kolander had documentation of the purchase,
including a copy of Phillips’s driver’s license, and that Phillips’s bank records
showed he had received payments totaling $7,500 from Schildhause, the
amount Schildhause testified he had paid for the paintings.

43
might have been inclined to punish [Phillips] for the uncharged offenses,
regardless whether it considered him guilty of the charged offenses.”
(Ewoldt, supra, 7 Cal.4th at p. 405.) However, that risk was not high in this
case because the evidence of the uncharged offenses was relatively anodyne,
especially as compared with the evidence of the charged offenses. It was
unlikely the jury’s passions would be inflamed by the Levy evidence, much
less that it would consider convicting Phillips of murder to punish him for
stealing paintings and guns from Levy. (See Tran, supra, 51 Cal.4th at
p. 1047 [potential for prejudice is decreased when testimony describing
defendant’s uncharged acts is no stronger or more inflammatory than
testimony about charged offense].)
The evidence was damaging, to be sure, as is the case whenever
evidence that a defendant committed an offense on a separate occasion tends
to show his intent was to steal from the current victim rather than innocently
accept money or property he believed he was lawfully entitled to take. But it
was not “unduly prejudicial” in the sense addressed by Evidence Code
section 352. The trial court acted well within its discretion in finding the
prejudicial effect of the Levy evidence did not substantially outweigh its
probative value.
2. Any Error in the Trial Court’s Reference to Evidence Code
Section 1109 Was Harmless.
The record is ambiguous, and the parties disagree, as to whether, prior
to commencement of the trial, the trial court ruled that the Levy evidence
was admissible only for limited purposes under Evidence Code section 1101,
subdivision (b), or also admitted the evidence under Evidence Code
section 1109, subdivision (a)(2) to show Phillips had a propensity to commit
crimes against elders. At one point, the court questioned whether Evidence
Code section 1109 applied because the items Phillips took from Levy were not

44
taken while he was present. The court’s point, we infer, was that Evidence
Code section 1109’s definition of “[a]buse of an elder,” while including
financial abuse, requires conduct that results in “physical harm, pain, or
mental suffering.” (Evid. Code, § 1109, subd. (d)(1).) Since the alleged theft
of Levy’s belongings occurred after he had been taken to Florida to be cared
for by family and was not discovered until after he died, the People could not
have shown Phillips’s theft caused Levy any physical or mental suffering.
Nothing changed in that respect between the court’s comment that Levy had
not been present when the theft occurred and its statement four days later
that “I have said that [the Levy evidence] can be used by the People for
[Evidence Code sections] 1101[, subdivision] (b) and 1109 purposes.” Nor
does the record reflect that the court had said previously that the Levy
evidence could be used for Evidence Code section 1109 purposes. On the
other hand, neither attorney questioned nor corrected the court’s reference to
Evidence Code section 1109 at the time it was made.
What is clear is that the court ultimately instructed the jury it could
only consider the evidence to show one or more of the following facts: Phillips
intended to deprive Sheahan of his property, Phillips knew he lacked
Sheahan’s consent to take that property, and Phillips had a plan or scheme to
commit burglary and larceny. The instruction further advised the jury, “Do
not consider this evidence for any other purpose.” The court also instructed
the jury, “You must follow the law as I explain it to you, even if you disagree
with it. If you believe that the attorneys’ comments on the law conflict with
my instructions, you must follow my instructions.” And that “Nothing that
the attorneys say is evidence. In their opening statements and closing
arguments, the attorneys discuss the case, but their remarks are not
evidence.” We presume the jury followed the court’s instructions.

45
 In light of the instruction on the limited purposes for which the jury
could consider the Levy evidence, the court’s reference to Evidence Code
section 1109 in admitting the evidence, whether mistaken or inadvertent, is
significant only insofar as it allowed the prosecutor, in opening statement, to
assert that the Levy evidence showed Phillips had a propensity to commit
burglary and theft.
Contrary to Phillips’s contention, the prosecutor’s comments about the
Levy evidence in his opening statement, which we have set out above, were
not propensity arguments. They focused on the commonalities between the
Levy and Sheahan incidents: that the victims were “older” and sick with
cancer and that Phillips had established a relationship and rapport with
them, taken money from one and valuables from the other, met with the
victim’s family members and, after stealing from the victims, suggested a
random burglary had taken place as evidenced by an open window in the
apartment. The prosecutor also pointed out that in both cases, Phillips
denied being in possession of property belonging to each victim, that these
were lies and that the lies together with other evidence would show that “not
only did he commit this heinous act but that he has a propensity to
manipulate or form relationships with people who are older or more
vulnerable because of their health.”
Use of the word “propensity” notwithstanding, these were proper
modus operandi arguments not improper propensity arguments. They did
not point to the Levy evidence as showing Phillips had a criminal propensity
generally and thus was inclined to commit crimes such as the ones charged.
Rather, the comments described “ ‘ “such a concurrence of common features
that the various acts are naturally to be explained as caused by a general
plan of which they are the individual manifestations.” ’ ” (People v. Sullivan

46
(2007) 151 Cal.App.4th 524, 558, quoting People v. Catlin (2001) 26 Cal.4th
81, 120.)
As the court stated in Ewoldt, “[e]vidence of a common design or plan is
admissible to establish that the defendant committed the act alleged. . . . For
example, in a prosecution for shoplifting in which it was conceded or assumed
that the defendant was present at the scene of the alleged theft, evidence
that the defendant had committed the uncharged acts of shoplifting in a
markedly similar manner to the charged offense might be admitted to
demonstrate that he or she took the merchandise in the manner alleged by
the prosecution.” (Ewoldt, supra, 7 Cal.4th at p. 394, fn.2.) Such evidence is
not admitted to show propensity—that because of his bad character the
defendant was “ ‘ “disposed to commit such acts.” ’ ” (See People v. Chhoun
(2021) 11 Cal.5th 1, 570.) Rather, it is admitted as “probative because of its
tendency to establish an intermediary fact from which the ultimate fact of
guilt of a charged crime may be inferred.” (Tran, supra, 51 Cal.4th at
p. 1048.)
As in the shoplifting example described in Ewoldt, here the evidence
showing Phillips was present at Sheahan’s apartment on the weekend
Sheahan was murdered was irrefutable. The question was what he did while
there. The prosecutor’s opening statement used the Levy evidence to show
that when he entered and exited Sheahan’s apartment Phillips took things of
value that belonged to Sheahan that he could use to obtain money (an ATM
card, blank checks, a wallet containing identifying information, a framed
print) acting in the same manner he had with Levy in staging the crime as a
random burglary to avoid apprehension. The Levy evidence undermined the
innocent “gift” scenario painted by Phillips and tended to show that he

47
entered Sheahan’s apartment for the purpose of stealing from him and
proceeded to do just that.
In short, Phillips’s argument that the trial court’s mistaken reference
to Evidence Code section 1109 as a basis for admitting the Levy evidence
resulted in an opening statement leading the jury to believe it could consider
that evidence to show propensity is not supported by the record. Nor are we
persuaded by Phillips’s argument that the trial court’s instruction on the
limited purposes for which it could consider the evidence was negated by the
People’s closing arguments, which he again contends were propensity
arguments. The prosecutor’s closing arguments, like his opening statement,
discussed the Levy evidence to suggest a common plan or scheme. 12

12 Describing the Levy incident, the prosecutor stated, “Mr. Phillips
went into his apartment, found what was valuable, and took it and then
staged it like a burglary. [¶] Not only did he leave an open window for family
members to find, but when the family members suggested to police that they
left everything closed up, Mr. Phillips debated, arguing, well, they might not
have seen. It was behind a curtain, but I think this is how they came in.
And we find ourselves with the very same circumstances in the staged
apartment of Mr. Sheahan.” (Italics added.) Later, referring to the scene at
Sheahan’s apartment, he said, “We know that things were out of place from
where they had been when Ms. Adina last saw them. And why you’ve got one
window open, and the other with things had been on the windowsill strewn
about, why other than to stage it as though someone came in one of those
windows? . . . [¶] And we do have a window that was left in the same way it
was in Mr. Levy’s apartment, and you are allowed to consider that this is a
plan, a scheme that [Phillips] has engaged in before, and to confuse, to delay,
to avoid responsibility. And then we have even more. [¶] When he thought
that might not be enough, we have an additional staging. We have the fact
that Mr. Phillips tried to make it look like Mr. Sheahan took his own life.”
Drawing another parallel between the two incidents, the prosecutor
referred to the fact that Phillips took and sold Levy’s guns and paintings for
hundreds and thousands of dollars and sold them, and kept Levy’s car
registration. He argued, “Mr. Phillips was keeping anything and everything
he could that might have some value, whether it came in the mail or whether

48
 The court’s reference to Evidence Code section 1109 in connection with
the in limine motions, which appears to have been inadvertent, was in any
event harmless error. The evidence was not used for propensity purposes,
and the jury was instructed in the limited purposes for which it could
properly be considered under Evidence Code section 1101, subdivision (b).
Thus, it is not reasonably probable that, absent the court’s reference to
Evidence Code section 1109, the jury would have returned a verdict more
favorable to Phillips.
3. Admission of the Levy Evidence Did Not Deny Him Due
Process.
For the same reasons we have concluded the Levy evidence was
properly admitted and that the trial court’s ruling that its probative value
was not substantially outweighed by its prejudicial effect, we reject Phillips’s
argument that its admission deprived him of a fair trial. (See People v. Foster
(2010) 50 Cal.4th 1301, 1335 [admission of evidence relevant to prove a fact
of consequence did not violate defendant’s due process rights]; People v. Byers

he could sell it later. [¶] This was Mr. Phillips’ business. That is one of his
ventures, one of his endeavors.” (Italics added.)
In rebuttal, he described another similarity. Observing that Phillips’s
statements to police that the checks drawn on Sheahan’s account were gifts
made because of their friendship, he contended, “And all that work, all that
time at the hospital, all the little odd jobs was all working towards a payoff,
just like he had tried to get a payoff from every other person he had interacted
with, Gene Levy, Mr. Schildhause, et cetera. It was a payoff. He was putting
in that work, either because Mr. Sheahan was going to die when it was pretty
dire at the hospital or shortly after, and Mr. Phillips wanted to be around and
as close as possible.”
The theme of these arguments was that Phillips’s acts with respect to
Sheahan were the manifestation of a plan or scheme he had engaged in with
Levy and others of gaining the trust of older and vulnerable men, taking
their money or things of value when they were unable to prevent him from
doing so, and then staging the scene to cover up his crimes.

49
(2021) 61 Cal.App.5th 447, 455 [where trial court weighed probative value of
evidence against its prejudicial effect, admitted it on relevant issues of motive
and intent, and gave limiting jury instructions, its admission did not violate
due process or render defendant’s trial fundamentally unfair].)
II.
Admission of Sergeant Discenza’s Testimony That He Thought the
Stains on Phillips’s Pants Were Blood Was Not an Abuse of Discretion
and Did Not Deprive Phillips of a Fair Trial.
A. The Motion in Limine
Phillips contends that the trial court erred prejudicially and violated
his constitutional rights by admitting, and indeed eliciting, Discenza’s
testimony that he thought stains that the video showed on Phillips’s pants as
he exited Sheahan’s apartment on Saturday August 12, were blood. In the
Evidence Code section 402 hearing, Discenza testified that one stain was not
present when Phillips first entered the apartment but was visible when he
first exited the apartment on that date.
By motion in limine, Phillips sought to exclude any opinion testimony
by prosecution witnesses about what the substance on Phillips’s pants in the
videotape was. The court heard arguments on the motion, concluded that
before deciding whether Discenza could testify on the subject she wanted to
hear what his testimony would be and conducted an Evidence Code
section 402 hearing at which Discenza testified. The court then stated that
based on Discenza’s 20 years in the police department and four in the
homicide detail, and having seen hundreds of scenes where there is blood and
taken courses with regard to blood spatter, he was “qualified to state that
something in his opinion is consistent with blood; but—I think that that’s
ultimately a question for the jury to ultimately decide if they agree with

50
Sergeant Discenza or not. [¶] So I will allow him to testify that he believes
that this bloodstain or this stain is consistent with a bloodstain and why.”
B. The Trial Testimony
At trial, Discenza testified briefly about his training and work history
for the San Francisco Police Department as a patrol officer, a field training
officer, a plainclothes, and doing investigations, first handling non-homicide
major crimes and then homicides. He testified that he was the lead
investigator in this case and detailed steps he took to investigate it. The
prosecutor did not seek to have Discenza qualified as an expert on blood or
blood stains or any other topic.
Discenza testified that he requested surveillance video from the
manager of Sheahan’s apartment building, and was provided surveillance
footage covering a period from 1:00 p.m. on Friday August 11, 2017, through
about 10:00 a.m. on Monday August 14. Clips of that video footage beginning
at about 10:21 a.m. on Saturday August 12 were played for the jury. During
pauses in the video, the prosecutor asked questions of Discenza who gave
responses. He identified Phillips as the person seen in the video. He testified
that he saw something on Phillips’s pants in the third clip at 11:47 a.m. that
he had not seen in the earlier clips showing Phillips entering the building,
namely, a stain beneath the knee on Phillips’s left pant leg. The prosecutor
then asked Discenza whether he had seen blood at hundreds of crime scenes
he had investigated and had formed an opinion about what the stain on
Phillips’s pants might be. Discenza stated that he had formed an opinion
based on the facts that there had been a lot of blood in the apartment when
Sheahan was found, that when Phillips had entered the building there was
no stain on his pants, that when he left the building there was a stain, and

51
that there was information he had learned from Tom Sheahan and from
phone records.
Before he could explain further, defense counsel objected on hearsay
grounds. The court then suggested that they go into his opinion first and
then follow up with further bases for the opinion and asked Discenza, “So did
you have an opinion as to what that depicted seeing no stain going in and a
stain going out[?]” Discenza responded, “Yes. I thought it was blood.”
Defense counsel objected that the opinion was “speculation,” and the court
overruled the objection. The prosecutor then asked, “Based on watching all of
the video, in color, size, shape, et cetera, did it appear consistent with blood
to you?,” to which Discenza responded “Yes.”
The prosecutor played three additional clips of the video showing
Phillips exiting and entering the same day, and Discenza testified that the
stain on Phillips’s pants could be seen in them and that an additional stain
on the pants appeared just above the knee in the third clip. He testified that
he formed an opinion based on his experience and on information he had from
this case that the second stain was “more blood transfer from the scene” and
appeared consistent with blood. Both stains on the left leg of Phillips’s pants
could be seen at all of Phillips’s subsequent entries and exits from Sheahan’s
apartment that day, the video clips of which were shown to the jury. The
stains were not present on Phillips’s pants during his single entrance and
exit to and from Sheahan’s apartment on Sunday August 13.
C. Analysis
“Opinion testimony is generally inadmissible at trial. [Citations.] Two
exceptions to this rule exist. First, a properly qualified expert, with ‘special
knowledge, skill, experience, training [or] education’ may provide an opinion.
(Evid. Code, § 801, subd. (b).) The subject matter of such an opinion is
limited to ‘a subject that is sufficiently beyond common experience that [it]

52
would assist the trier of fact.’ (Id., subd. (a).) ‘Expert opinion is not
admissible if it consists of inferences and conclusions which can be drawn as
easily and intelligently by the trier of fact as by the witness. [Citation.]’
[Citation.] ‘[T]he decisive consideration in determining the admissibility of
expert opinion evidence is whether the subject of inquiry is one of such
common knowledge that men of ordinary education could reach a conclusion
as intelligently as the witness or whether, on the other hand, the matter is
sufficiently beyond common experience that the opinion of an expert would
assist the trier of fact.’ [Citation.] Thus, the purpose of expert testimony, to
provide an opinion beyond common experience, dictates that the witness
possess uncommon, specialized knowledge.
“Lay opinion is also admissible, but it plays a very different role than
expert opinion and is subject to different rules of admissibility. ‘ “Lay opinion
testimony is admissible where no particular scientific knowledge is required,
or as ‘a matter of practical necessity when the matters . . . observed are too
complex or too subtle to enable [the witness] accurately to convey them to
court or jury in any other manner.’ [Citations.]” [Citation.]’ [Citation.] It
must be rationally based on the witness’s perception and helpful to a clear
understanding of the witness’s testimony. (Evid. Code,
§ 800; [citations].) For example, testimony that another person was
intoxicated [citation] or angry [citation] or driving a motor vehicle at an
excessive speed [citation] conveys information to the jury more conveniently
and more accurately than would a detailed recital of the underlying facts.
But unlike an expert opinion, the subject matter of lay opinion is ‘one of such
common knowledge that men of ordinary education could reach a conclusion
as intelligently as the witness,’ and requires no specialized background.
[Citation.]” (People v. Chapple (2006) 138 Cal.App.4th 540, 547.)

53
 Discenza’s testimony falls within the lay opinion parameters. He
testified about the video surveillance footage of Phillips’s entries and exits
from Sheahan’s apartment building and apartment on the Saturday on which
Sheahan appears to have been murdered. He explained that he had obtained
the surveillance video from the manager of the apartment building where
Sheahan lived and had reviewed the entire footage, which covered more than
two days. As the lead investigator, he testified about the video and about the
other steps he took in the investigation and the evidence he and other officers
uncovered.
Phillips argues that the trial court’s ruling admitting the testimony
was unclear regarding whether it was allowing him to testify about the blood
evidence as an expert or as a lay person. His point is well taken. In
explaining its ruling, the court referred to Discenza’s experience in the police
department and the homicide detail and exposure to “hundreds of . . . scenes
where there’s blood” and followed with, “I think he’s qualified to, as would
any type of similar expert, be qualified to state that something in his opinion
is consistent with blood . . . .” (Italics added.) However, at trial, the
prosecutor asked about Discenza’s experience but did not seek to qualify
Discenza as an expert on blood evidence or any similar subject before posing
questions about the stains. Defense counsel objected to the prosecutor’s
questions and to a question from the court as calling for speculation, but the
trial court overruled most of them. The court ultimately instructed the jury
on lay witness opinion testimony.
Phillips argues that the court’s ruling, insofar as it allowed Discenza to
testify about this evidence as a lay witness, was error. He cites the general
rule that lay witnesses “ ‘must ordinarily testify to facts, not opinions’ ” and
asserts that “ ‘[o]pinion testimony is generally inadmissible at trial.’ ” (Citing

54
1 Witkin, Cal. Evidence (3d ed. 1986) § 447, p. 421; 1 Witkin Cal. Evidence
(4th ed. 2000) Opinion Evidence, §1, p. 528; and People v. Torres (1995)
33 Cal.App.4th 37, 45.) These general principles are accurately stated but do
not cover the waterfront on the issue before us.
In Witkin’s current evidence treatise, section 1 is headed “Traditional
Rule of Exclusion” and contains the caveat, “But the rule has been subjected
to much criticism (see infra, § 2), and has undergone so much relaxation in
liberal jurisdictions that opinions are now received in a great many situations
in which they are necessary or useful. (See infra, § 3 et seq.)” (1 Witkin, Cal.
Evidence (5th ed. 2021) Opinion Evidence, §1). As section 2 goes on to
explain, the California Evidence Code established a new rule consistent with
the original Uniform Rules of Evidence, “loosening” the standard for lay
opinion testimony by allowing trial courts discretion to admit it. (1 Witkin,
Cal. Evidence (5th ed. 2021) Opinion Evidence, § 2.) Section 4 explains, “The
modern tendency of the courts is to relax the ‘necessity’ test and allow
opinions where they are ‘helpful’ in understanding testimony. This was the
approach of the Uniform Rules of Evidence, and it was substantially restated
in [Evidence Code section] 800.” (Id., § 4.)
Phillips further argues that lay opinion testimony must not address
“matters that go beyond common experience.” That is a correct statement of
the law. (People v. Chapple, supra, 138 Cal.App.4th at p. 547.) But Phillips’s
contention that identifying a substance on clothing as blood or possible blood
is “beyond common experience” is conclusory, unsupported by either
authority or analysis. Besides, the contention makes no practical sense.
People often cut themselves and have other accidents or observe others have
such accidents and blood frequently ends up on clothing, kitchen towels or
other items. The look of a bloodstain on fabric is not beyond common

55
experience, much less so far beyond that jurors cannot evaluate it without
expert testimony.
As one evidence treatise states, “Unfortunately, many violent crimes
may require witnesses to testify that substances they saw in connection with
the crime was blood. Technically, such substances probably cannot be
definitively identified as blood without scientific testing, but courts
nevertheless permit lay witnesses to give their opinion that what they
observed appeared to be or was blood. This approach is based on the
commonsensical conclusion that the ordinary person is exposed to blood in
the course of their life experiences and thus is quite capable of giving an
opinion that a particular substance was blood.” (3 Wharton’s Criminal
Evidence (15th ed. Nov. 2021 update) § 12:12, fn. omitted.)
While the parties have cited no California case, and we have found no
published California case specifically ruling on this issue, we can say with
some confidence that the identification of a substance on clothing or fabric as
blood is not a matter beyond common experience. (Cf. People v. Clark (1993)
5 Cal.4th 950, 1018 [noting in dicta, “it is a matter of common knowledge,
readily understood by the jury, that blood will be expelled from the human
body if it is hit with sufficient force and that inferences can be drawn from
the manner in which the expelled blood lands upon other objects”],
disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421,
fn. 22.)
Phillips also argues that a lay witness’s opinion must not go “ ‘beyond
the facts he personally observed’ ” and must be “helpful to a clear
understanding of the witness’s testimony.” He contends that what “Discenza
actually observed on the videotape” “was something he was entirely capable
of conveying without the need for an expression of opinion” and that “the

56
jurors were shown the videotape and thus could see and evaluate it on their
own without the need for any lay opinion testimony about what it portrayed.”
We disagree. First, Discenza’s testimony related his perceptions of
what he saw on the video surveillance camera, the appearance of the stains,
Phillips’s entries and exits from the apartment, and the timing of the
appearance of the stains. Second, the video contained significant subtleties
that Discenza’s testimony pointed out. We have reviewed the video
surveillance evidence about which Discenza testified. It is possible for a lay
person to see the stains on Phillips’s pants if she knows when and where to
look for them and slows or stops the video footage sufficiently to focus on
them. The video footage is in color and the stains are visible, but only with
that knowledge. Without Discenza’s testimony and the accompanying pauses
in the surveillance video, the stains on Phillips’s pants as he came down the
steps and moved along the hallway on his way from and to Sheahan’s
apartment would have been too subtle to notice. Discenza’s testimony aided
the jury (and this court) in reviewing the video clips by pointing out where
and when the stains appeared on the video footage.
Discenza theoretically could have pointed out the stains to draw the
jury’s attention to them without testifying he thought they were blood. But
the significance of the stains to the investigation would not have been evident
without Discenza’s opinion about what the stains were and his explanation of
the bases for that opinion. He testified that the clips showing Phillips coming
in and out included all of Phillips’s entries and exits from the building on the
surveillance video for August 12, 2017. Through his testimony coupled with
the video footage, he showed that Phillips first entered the apartment
without any stains on his pants but left the apartment with them. He did not
state that he could tell simply from looking at the stains that they were

57
blood. Rather, he testified that his belief was based on Phillips having
entered the apartment without stains and having exited with them and on
the large amount of blood and blood spatter observed in Sheahan’s
apartment. He further testified that the color, size and shape of the stains
appeared to him to be consistent with blood. His testimony was helpful to the
jury because it identified something subtle, the presence and significance of
which likely would not have been seen or understood by jurors watching the
videotape without it. Discenza’s testimony provided connections between
dots, that is, items of evidence, in a way that was helpful to the jury. Similar
testimony pointing out the stains without explaining why they were
potentially significant would have been confusing, not helpful, to the jury.
Phillips also contends that by eliciting the testimony that “what he saw
on appellant’s pants in the videotape was blood,” the trial court “violat[ed] its
own clearly stated ruling . . . that “no witness, could opine that it was blood
that was seen on the pants in the videotape.” Phillips overstates the trial
court’s in limine ruling. While the judge made clear that the issue of whether
the stains were blood was ultimately one for the jury, she concluded by
stating, “So I will allow him to testify that he believes that this bloodstain or
this stain is consistent with a bloodstain and why.” (Italics added.) Discenza
did not testify that what he saw on Phillips’s pants in the video was or is
blood. His testimony was couched in tentative terms: he “thought” it was
blood because, in part, of other evidence (the amount of blood at the scene
and the timing of its appearance), and he testified that its size, shape and
color “appeared consistent with blood.” (Italics added.)
Nor did Discenza’s opinion testimony usurp the jury’s responsibility to
make its own determination of the facts, including whether the stains were
blood. Indeed, Sergeant Lyn O’Connor, who was qualified as a blood spatter

58
expert, testified that the substance on the pants, as viewed on the videotape,
was consistent with blood but was also consistent with any dark liquid.
Further, Discenza made clear that the issue was simply his belief and
had not been confirmed by scientific testing. He testified that when he
searched Phillips’s residence and storage units, he found “a number of pairs”
of cargo pants at Phillips’s residence but they were clean and one had been
bleached. Two pairs of cargo pants were tested for blood and none was found.
Finally, as the People point out, the court instructed the jury with
CALCRIM No. 333, which told them, “Witnesses, who were not testifying as
experts, gave their opinions during the trial. You may but are not required to
accept those opinions as true or correct” and may give them “whatever weight
you think appropriate.” It directed them to consider “the extent of the
witness’s opportunity to perceive the matters on which his or her opinion is
based, the reasons the witness gave for any opinion, and the facts or
information on which the witness relied in forming that opinion” and to
“decide whether information on which the witness relied was true and
accurate.” The jury could “disregard all or any part of an opinion” it found
“unbelievable, unreasonable, or unsupported by the evidence.” In short, the
jurors were permitted to decide for themselves whether they thought the
stains on Phillips pants were blood, based on their appearance in the
videotape and on all the facts surrounding their appearance on Phillips’s
pants.
For these reasons, we conclude the trial court did not abuse its
discretion by admitting Discenza’s testimony that he thought the stains on
Phillips’s pants were blood. For the same reasons we find no state law error,
we also conclude the admission of Discenza’s testimony about did not deprive
Phillips of a fair trial.

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 III.
Phillips Fails to Show Error or Prejudice in the Trial Court’s Rulings
on Objections During Closing Arguments.
Phillips contends the trial court erred by sustaining objections to two
lines of defense counsel’s closing argument and by overruling an objection
defense counsel made to a related part of the prosecutor’s closing argument.
Specifically, pointing to the evidence that Phillips took a framed picture from
Sheahan’s apartment, defense counsel argued, “When Sergeant Discenza who
is here in court right now took the stand, he sat right here, and I asked
Sergeant Discenza where is that picture? He said, it’s downstairs in
evidence.” After the trial court sustained the prosecutor’s objection, defense
counsel persisted, “I asked Sergeant Discenza to bring that picture to court
this afternoon.” . . . “Have you seen that picture?” . . . “Have they brought
that picture into evidence?” The prosecutor continued to object and the trial
court sustained the objections. In regard to a second item of evidence,
defense counsel argued that he had asked the blood spatter expert, O’Connor,
to bring to court the bloody tissue or similar material that had been found at
the crime scene. “So I asked [O’Connor] to bring that to court. I’m still
waiting.” The court sustained the prosecutor’s objection to this question and
instructed the jury to disregard it.
Phillips contends the trial court’s ruling was error because “[i]t is
proper in closing argument for ‘the defense . . . to make arguments to the jury
based on the failure of the opposing party to present evidence.’ ” The cases he
cites support that general proposition. (People v. Alaniz (2017)
16 Cal.App.5th 1, 6 [“It is firmly established that in general both the defense
and, in appropriate circumstances, the prosecution may make arguments to
the jury based on the failure of the opposing party to present evidence”];
People v. Szeto (1981) 29 Cal.3d 20, 34 [prosecutor’s reference to defendant’s

60
failure to produce alibi witnesses for crucial period permissible as comment
on state of evidence or on failure of defense to introduce material evidence].)
Phillips is also correct in stating that counsel is afforded significant leeway in
closing argument. (People v. Centeno (2014) 60 Cal.4th 659, 666.)
Defense counsel’s arguments, however, went beyond a fair comment on
the absence of material evidence. Defense counsel’s arguments were not
simply that the prosecution did not present certain evidence at trial and that
the jury could therefore infer something from the absence of that evidence.
The arguments to which the court sustained objections implied that if a
defense attorney asks a witness during a trial to produce specified evidence
and the witness fails to do so, the witness is not credible or the prosecution is
improperly withholding material evidence. The argument could have misled
the jury if not corrected. Jurors are not necessarily familiar with the
discovery process. Nor are they likely to know a defendant has the power to
subpoena evidence. Jurors unschooled in these matters might have taken
defense counsel’s arguments to mean the prosecution wrongly withheld and
was hiding material evidence.
Defense could have avoided the problem (and was invited by the trial
court to phrase the arguments differently) by simply asserting—without
reference to the requests it had made at trial to the prosecution’s witnesses—
that the prosecution did not test the framed print for blood or offer it into
evidence and that the photographs of the print were inadequate. The same is
true for the tissue or other material defense counsel claimed should have
been produced at trial once he requested it.13 As framed, the defense

13 Some of the trial court’s comments can be construed as ruling that
defense counsel’s arguments conflicted with the jury instruction providing
that neither side has to produce all evidence, which the appellate courts have
rejected. However, they can also be read simply to accept the prosecutor’s

61
arguments were misleading and the trial court did not err in sustaining the
objections.
Even if there had been any error, moreover, it was harmless. Phillips
contends his theories at trial were that he left Sheahan uninjured on Sunday
and the framed print he took was a gift, and that the police failed to
investigate adequately and if they had scrutinized the evidence and collected
more evidence, they might have found the real perpetrator. But nothing
prevented defense counsel from making these arguments. He was able to and
did argue his theory of Phillips’s innocence in his closing. Specifically, he
argued that Phillips was “a very good friend” of Sheahan and that Sheahan
gave Phillips his old journals and the framed picture. He quoted from
Sheahan’s statements about their friendship in his journals and pointed to
the evidence that Sheahan was researching how to hang another picture in
place of the one he gave Phillips.
In his closing, defense counsel also argued various evidence was absent,
which he contended showed Phillips could not have been the killer. He
argued that Phillips could not have been the perpetrator because there was
no evidence of Sheahan’s blood or DNA on the framed print, on the carpet in
the hallway and stairs of Sheahan’s building, or on other items at Phillips’s
house and storage units or in his car. He argued that there was no evidence
of Phillips’s DNA on anything in Sheahan’s house, either. He argued that the
police did not investigate certain things or scrutinize the evidence they did

argument that counsel was in essence suggesting witnesses who do not
comply with a request by a defendant at trial for evidence that could have
been obtained in discovery or by subpoena are not credible. In any event, we
don’t review the stated basis for the ruling but decide if it is correct on any
ground.

62
find. Finally, as Phillips concedes, his counsel made many of these same
points during cross-examination of Discenza and other officers.
Phillips also contends it was error for the court not to sustain his
objection to the prosecutor’s statements in closing argument that the People
were “ ‘not required to call all witnesses, or present all evidence’ ” and that,
“ ‘[Defense counsel] was suggesting there [sic] not only that the credibility of
the witnesses is in question because he gave them a request or command that
they didn’t comply, but that there’s something being hidden from you,
because we didn’t bring these things to court. There is a process. The
process is not in front of you when questioning a witness, use that for
discovery purposes to say, hey, can you bring this to court. The judge will
decide when and if something is ordered to come to court. [Defense counsel]
has the subpoena power. He knows that.’ ” Defense counsel objected that
this argument improperly shifted the burden of proof to the defense. The
trial court overruled the objection. Phillips claims this “compounded the trial
court’s erroneous rulings” sustaining the prosecutor’s objections to the
statements in his closing argument that we have already discussed.
We are not persuaded. As we have already concluded, defense counsel’s
closing argument went beyond arguing the absence of evidence by suggesting
he could simply demand that a witness produce evidence while questioning
the witness at trial and, if the prosecution did not comply, the jury could infer
the witness was biased or the prosecution was hiding the ball. It was to this
aspect of defense counsel’s argument that the prosecutor was responding to in
the arguments quoted above. It is appropriate for a defense attorney to argue
the prosecution is withholding material evidence if the evidence exists, the
defense requested it the during the discovery process and it was not provided
or presented at trial. That is not the same as implying a witness has an

63
obligation to produce an item the defense did not subpoena and did not even
request until the middle of trial.
In short, the trial court did not err in overruling the defense objection
to this responsive argument by the prosecution. This ruling did not occur
until the prosecutor’s rebuttal and did not prevent the defense from arguing
that the People’s failures to investigate or to present certain evidence raised
reasonable doubt on essential elements of their case. Nor, contrary to
Phillips’s argument on appeal, did it “serve[] as an implicit endorsement of
the notion that the prosecution did not have the burden of proof.”
IV.
The Trial Court’s Denial of Phillips’s Mistrial and New Trial Motions
Was Not an Abuse of Discretion.
Phillips next argues the trial court erred in denying his motion for
mistrial and subsequent motion for new trial based on witnesses relating
hearsay the court had excluded in ruling on motions in limine. Specifically,
the trial court granted defense counsel’s motion to exclude hearsay
statements that Sheahan’s brother, Tom, made to the building manager,
Vicki Chak, that he was concerned about Sheahan because he had not heard
from him in three days.
The court reasoned, “Sounds to me like time of death is at issue.” It
directed the prosecutor to “instruct [Chak] or anyone else to just say there
was an inability to contact or reach [James] Sheahan versus a specific time
period.”
The trial court also granted a motion made by the prosecutor, ordering
both counsel to “advise all your witnesses of all the Court’s rulings.” In so
ruling, the court admonished counsel, “I have had situations where you pick
and choose what you think is going to apply to that witness, which is fine,
except for I’ve had situations where the witnesses said something the

64
attorney didn’t even anticipate they were going to say, which violates an in
limine. So best to advise them of all my in liminis [sic] so they’re very clear
about the parameters of what they can talk about.”
The prosecutor failed to adhere fully to the court’s in limine rulings.
The prosecutor advised Chak, the apartment manager, about the ruling
excluding testimony about Tom having said he had been unable to reach
Sheahan for any specific time period, and she testified only that she received
a phone call from him indicating he had been unable to reach his brother and
asking her to knock on Sheahan’s door. However, the prosecutor asked
Officer Larkey what steps she and the other first responder had taken once
they arrived at Sheahan’s apartment building on Monday August 14, 2017,
and Larkey responded that they had met with Chak, and that Chak had
informed them Sheahan’s brother, who lived out of state, was concerned
because “he hadn’t been able to reach [Sheahan] in about three days.” The
prosecutor immediately moved to strike the answer as hearsay, and the trial
court granted the motion, stating “The last part about the brother will be
stricken and cannot be considered.” Later, after Phillips moved for a
mistrial, the prosecutor told the court he had informed Chak about the in
limine ruling regarding Tom Sheahan but had not advised Larkey about it
because the court’s ruling had pertained to Chak and he had not been aware
that the officer knew about Tom Sheahan’s statement to Chak.
The prosecutor violated the court’s ruling on the Tom Sheahan
statement, which was not limited to Chak, but expressly covered her “or
anyone else.” (Italics added.) Further, he violated the order the court gave,
at his own request, requiring counsel to advise all witnesses about all in
limine rulings. Trial judges give admonitions like the one Judge Giorgi gave
in this case for good reasons, and the prosecutor’s failure to advise all

65
witnesses of all in limine orders rather than to assume witnesses are not
aware of the excluded information was negligent.
The same is true of the prosecutor’s failure to advise Dr. Moffat, the
medical examiner, of the in limine ruling about Tom’s statements, and it had
a similar result. Asked by the prosecutor how and under what circumstances
Sheahan’s body came to her, Dr. Moffat responded, “Our investigators were
called to his apartment. He had not—his brother hadn’t been able to get a
hold of him for a couple of days.” Defense counsel promptly objected, and the
trial court stated it was striking the “last part.”
The prosecutor’s failure to comply with respect to the medical examiner
was inexcusable. The danger the court had warned counsel about had
occurred once already with respect to Officer Larkey during the trial. In
addressing the defense motion for mistrial regarding Officer Larkey, the
court repeated its warning: “I go back to this is why it’s critical to tell all
witnesses whether you know what they know or not, all of them, of every
single motion in limine ruling, because they may know something you don’t
know they know that may affect a motion.” The prosecutor’s apparent failure
to comply with the court’s in limine order a second time is inexplicable. Law
enforcement witnesses logically must be assumed to communicate with
potential witnesses they encounter during an investigation and to
communicate with each other about what they learn during an investigation.
Although the prosecutor clearly erred, prosecutorial error does not
require a trial court to declare a mistrial in all circumstances. Only if “a
particular incident is incurably prejudicial” should the court grant a
mistrial.” (People v. Ledesma (2006) 39 Cal.4th 641, 683.) That
determination “ ‘is by its nature a speculative matter, and the trial court is
vested with considerable discretion in ruling on mistrial motions’ .” (Ibid.)

66
We review the trial court’s denial of a mistrial motion for abuse of discretion.
(See People v. Schultz (2020) 10 Cal.5th 623, 673.)
In this case, the court immediately instructed the jury in both instances
that the hearsay statements were stricken. The court also instructed the
jury, “If I ordered testimony stricken from the record you must disregard it
and must not consider that testimony for any purpose.” “We presume that a
jury follows the court’s admonishments.” (People v. Schultz, supra,
10 Cal.5th at p. 673.)
The trial court denied the mistrial motion based in part on the fact that
the court struck Larkey’s testimony from the record and in part on the
prosecutor’s representation that he would proffer other evidence showing
Tom did not talk to Sheahan for three days.
The prosecutor did in fact offer the evidence about Tom not being able
to reach his brother. Sherry Sheahan, Tom’s wife,14 testified that Tom
phoned Sheahan every few days, that she did not see Tom call Sheahan or
hear him talk with Sheahan on the Saturday of the weekend before she
learned of his death, that she saw Tom call James on Sunday August 13,
2017 “[a]bout, half a dozen times,” but didn’t hear Tom talk with him that
day. She did not hear Tom leave a voicemail for Sheahan on Sunday.
The prosecutor also introduced into evidence Sheahan’s phone records
from August 11 through August 17, 2017, which indicated Sheahan answered
no incoming calls after 10:28:26 a.m. on Saturday August 12.
The significance of the hearsay evidence, according to Phillips, and the
prejudice flowing from it, stem from the issue of when Sheahan died. As we
have discussed, Phillips sought to convince the jury that Sheahan was killed

14Tom was unavailable to testify because he was undergoing medical
treatment for a serious illness.

67
sometime after Phillips last visited the apartment on Sunday August 13,
whereas the People’s theory was that Phillips attacked Sheahan on Saturday
morning, and that he either died immediately or sometime later but well
before he was found on Monday morning. However, the excluded hearsay
was far less important than Phillips suggests. As even he concedes, “there
was other circumstantial evidence from which the prosecutor could argue its
theory that Sheahan was killed on the morning of Saturday [August] 12.”
Indeed, there was.
Besides the testimony of Sherry Sheahan and Sheahan’s telephone
record we have just described, the evidence that most strongly placed the
assault on the morning of Saturday August 12, 2017, was the surveillance
video footage showing Phillips entering Sheahan’s apartment that morning,
emerging with an apparent reddish brown stain on his pants, and continuing
to come and go throughout that day during which the first stain remained
and a second stain appeared on his pants. The evidence that Sheahan’s blood
was found inside the red and black Trader Joe’s bag that Phillips carried into
and out of Sheahan’s apartment that day is further circumstantial evidence
that he attacked Sheahan that day.
We therefore disagree with Phillips’s assertion that the hearsay
evidence that Sheahan’s brother Tom said he had been unable to contact him
for “about three days” or “a couple of days” was so “powerful” that it was
incurable by the judge’s orders striking it, coupled with its instruction to the
jury that stricken evidence could not be considered. We also agree with the
trial court that prosecutor’s proffer of other evidence that was admissible on
the same subject (which he did in fact provide) rendered the prosecutor’s
error non-prejudicial in any event. In short, the trial court’s denials of the

68
mistrial motion and the subsequent new trial motion were not arbitrary,
capricious or otherwise an abuse of discretion.
DISPOSITION
The judgment is affirmed.

69
 STEWART, Acting P.J.

We concur.

MILLER, J.

MAYFIELD, J.*

People v. Phillips (A156387)

* Judge of the Mendocino County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.

70
Trial Court: San Francisco County Superior Court

Trial Judge: Hon. Loretta M. Giorgi

Counsel:

Victor Blumenkrantz, under appointment by the Court of Appeal, for
Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Jeffrey M. Laurence, Assistant Attorney General, Catherine A.
Rivlin, Allen R. Crown, Deputy Attorneys General, for Plaintiff and
Respondent.

71