People v. Dworak

IN THE SUPREME COURT OF
CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
v.
DOUGLAS EDWARD DWORAK,
Defendant and Appellant.

S135272

Ventura County Superior Court
2004016721

July 15, 2021

Justice Liu authored the opinion of the Court, in which Chief
Justice Cantil-Sakauye and Justices Corrigan, Cuéllar,
Kruger, Groban, and Jenkins concurred.
 PEOPLE v. DWORAK
S135272

Opinion of the Court by Liu, J.

Defendant Douglas Edward Dworak was sentenced to
death in 2005 for the rape and murder of Crystal Hamilton. The
jury found Dworak guilty of one count each of murder and rape
(Pen. Code, §§ 187, subd. (a), 261, subd. (a)(2); all undesignated
statutory references are to the Penal Code) and found true the
special circumstance that the murder was committed while
Dworak was engaged in the commission of rape (§ 190.2, subd.
(a)(17)(C)). Dworak waived his right to jury trial on two prior
felony conviction allegations and admitted to prior convictions
for rape (§ 261, subd. (a)(2)) and sexual penetration with a
foreign object while using a weapon (§ 289, subd. (a)(1)). This
appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment
in its entirety.
I. FACTS
A. Guilt Phase
1. Prosecution Case
The prosecutor’s theory at trial was that Dworak, who had
previously been convicted of rape and who admitted to a history
of consensual sexual encounters with prostitutes during times
of stress in his marriage, sought out nonconsensual sex the
evening of April 20, 2001, after he and his wife had an argument,
and while his wife was out of town. The prosecutor speculated
that the victim, Crystal Hamilton, may have mistaken Dworak’s
white pickup truck for that of her father, who was on his way to

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pick her up from a shopping plaza sometime around midnight.
During the course of their encounter, the prosecutor argued,
Dworak raped Hamilton and then murdered her in order to
avoid a return to prison, leaving her body in the water at a
deserted point of Mussel Shoals Beach in Ventura.
The prosecutor opened her case with testimony from
Cynthia W. concerning Dworak’s prior convictions. In October
1986, Cynthia was returning home from a shopping trip when
Dworak approached her in her driveway. Dworak grabbed her
from behind and put a large hunting knife to her throat. They
struggled; Cynthia’s glasses fell off and she sustained a cut on
her thumb. Dworak took Cynthia to the back of her car, put his
finger in her vagina, and raped her. He then told her to “stay
put” or else he would come back and hurt her. After Dworak
left, Cynthia ran inside her home and called her husband and
then 911. She provided a statement to the police and identified
Dworak as the perpetrator. Dworak was 20 years old at the
time. He was convicted of rape and sexual penetration with a
foreign object while using a weapon and was sentenced to 18
years in state prison.
Dworak was paroled to Ventura County in 1996. In 1999,
he married Susannah Dworak. They fought frequently, and
Dworak described Susannah as a “raging bitch” who “got on [his]
case about everything,” including his fishing trips with friends
to Mussel Shoals, among other places. Dworak told detectives
that he was “sexually frustrated” and sought to have sex with
prostitutes in Ventura because there “just wasn’t any sex
happening.”
Susannah worked for an oral surgery group. On the
weekend of April 21, 2001, Susannah was scheduled to attend a

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certification course in Irvine to become an oral surgery
assistant. The day before the training, Susannah called the
office to explain she would not come in that day. Susannah was
crying and upset but confirmed she would attend the weekend
training. Susannah attended the conference; a coworker who
shared a room with Susannah described her as “very upset, very
emotional” that weekend because she had “a rough day Friday.”
Dworak was employed at a general contracting company.
He was “on-call” the weekend of April 21 but did not work either
day. A neighbor testified that Dworak stopped by to talk that
weekend; Dworak told the neighbor that his wife was away and
that he was “out living it up and playing pool and — at the local
bars and going down to Ventura and staying out late.” The
neighbor testified that Dworak seemed to be in good spirits and
told her, “ ‘[W]hen the cat’s away, the mouse will play.’ ”
Crystal Hamilton was 18 years old in April 2001. She
lived in Oxnard with her father, Air Force Lieutenant Colonel
Michael Hamilton and two siblings. She frequently wore small
jewelry items; Hamilton’s sister recalled that she was wearing a
bracelet when she left home the day before her death to attend
a small gathering at the home of Matt Zeober, a friend and
former classmate. Zeober lived with his mother, Robyn Jones,
in Ventura. During that gathering, which took place on Friday,
April 20, Zeober, Hamilton, and some friends smoked marijuana
and used methamphetamines. Hamilton spent the night at
Zeober’s home.
Hamilton remained at Zeober’s house the next day. In the
afternoon, Hamilton called her father asking for a ride home.
Lieutenant Colonel Hamilton was in Corona and told Crystal he
could pick her up that evening. Hamilton made other calls

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seeking a ride home but ultimately made plans to meet her
father in the parking lot at a nearby Ralphs grocery store around
midnight. That evening, Zeober fell asleep but then woke up
between 8:00 p.m. and 10:00 p.m. Hamilton was drawing a
picture and told Zeober she would be leaving soon, and he fell
back asleep. It was the last time he saw Hamilton. When
Zeober next woke up, the evening news was on and Hamilton
was gone.
Lieutenant Colonel Hamilton arrived at the grocery store
around midnight, driving a white pickup truck with no toolbox,
but Hamilton was not there. He drove around looking for her in
the parking lot, then drove to Zeober’s home. The lights were
off, and he did not knock on the door. Hamilton occasionally
failed to appear when she made arrangements to meet her
father, so he was not overly concerned at that point and did not
call the police.
Jorge Valdez was fishing at Mussel Shoals Beach around
dawn on Sunday, April 22, when he saw what looked like a body.
The beach was approximately an 18-minute drive from the
Ralphs store where Hamilton had planned to meet her father.
Valdez went to a nearby fire station to report what he saw.
Firefighters found Hamilton’s body lying naked in the surf.
The firefighters recovered Hamilton’s body and observed
signs of lividity and rigor mortis, a cut over her left eye, and
bruising around her hips. There was no clothing or jewelry on
the body. Police searched the area but found no clothing,
jewelry, or other evidence connected to Hamilton.
The autopsy revealed numerous injuries on Hamilton’s
body, including blunt-force trauma to the head; abrasions on her
left breast, right shoulder, ribs, and hips; bruising on her left

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upper bicep; abrasions and bruising to her left wrist and hand;
and abrasions on her neck. Examination of the body and
biopsies of some of the injuries confirmed that some of
Hamilton’s injuries, including the injuries to her right forehead
area, breast, bicep, knee, and wrist, occurred before death. The
medical examiner, Dr. Ronald O’Halloran, testified that marks
on her left wrist could have been a pressure mark caused when
an object like a bracelet was pressed into her skin before or after
death. Dr. O’Halloran further testified that the injury just
above the bridge of her nose was caused by an impact against a
hard, blunt object that hit Hamilton in the head, such as a car
or rock, but because no biopsy was performed of this injury, he
could not testify as to whether it occurred before or after death.
Dr. O’Halloran described abrasions on a “relatively
protected” area of Hamilton’s neck that is not usually injured
when a person falls down, explaining that “in manual
strangulations, fingernails often leave” such marks. Hamilton
had petechial hemorrhages in her eyes, which Dr. O’Halloran
described as “a very common finding in manual strangulations.”
He acknowledged these can also occur as a result of CPR or
violent vomiting but added there was no evidence that either
had occurred here. There was sand and water in Hamilton’s
lungs. The toxicology report was positive for
methamphetamine, amphetamine, and marijuana in amounts
sufficient to affect Hamilton’s “brain function, that is, she
probably got high on it,” but “not a level that generally is
accepted to cause death.”
Dr. O’Halloran determined that the cause of death was a
homicide, and he opined that she likely died from drowning,
though the evidence strongly indicated she was also manually
strangled, perhaps while in the water. Based on the paramedics’

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observations of lividity, rigor mortis, and body temperature, as
well as contemporaneous measurements of the air and water
temperatures in the area, Dr. O’Halloran estimated that
Hamilton died between midnight and 3:30 a.m.
Dr. O’Halloran did not observe any injuries in the vaginal
area. Seminal fluid, sand, and seaweed were present inside
Hamilton’s vagina. A forensic scientist at the Ventura County
Sheriff’s Department who later examined the vaginal swabs
described the amount of sperm as “off the charts,” indicating
that it was deposited within one hour and 15 minutes of her
death or much less, assuming she was ambulatory after
intercourse. If she was not ambulatory (i.e., had laid down
before intercourse and never got back up), the sperm could have
been deposited 11 to 12 hours before her death. He
acknowledged that this was the first examination he had
conducted on sperm found in someone floating in cold water and
that colder temperatures could have slowed degradation and
prolonged sperm life. He also acknowledged that he did not
prepare his sample using the same method as the studies he
relied on.
An analysis of the vaginal swabs confirmed the presence
of both sperm and nonsperm cellular material. A DNA profile
from the sperm portion was submitted to the California
Department of Justice’s convicted offender DNA data bank . In
March 2002, the Department of Justice notified the Ventura
County Sheriff that the DNA profile from the sperm portion of
the vaginal swabs matched the DNA profile on file for Dworak.
The detective assigned to the case determined that Dworak was
a sex offender and asked to be notified when Dworak next
reported for mandatory registration.

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When Dworak reported on May 12, 2003, he agreed to
speak with detectives. (The record does not explain the lapse of
time between the DNA hit and this encounter.) When asked,
Dworak stated that he had been with three different prostitutes
whom he picked up in Ventura over “a year and a half or so,
maybe two” years earlier. He explained that these encounters
occurred during the afternoon when he got off work and that he
used a condom each time. He described one of the prostitutes as
African American, one as “Mexican,” and one as White. He
described the White prostitute as approximately 5 feet 4 inches
tall, no tattoos, wearing make-up, and having wavy, shoulder-
length hair that was “dirty brown, dirty blonde” in color. She
was “[m]iddle aged, . . . maybe 20’s, hard 20’s” and looked “kind
of hard — rode hard.” He denied recognizing either a
photograph of Hamilton or her name. The interview was tape-
recorded and played for the jury.
Detectives interviewed Dworak again on June 11; a
videotape of this interview was played for the jury. This time,
Dworak described the White prostitute as “mid-twenty
something” with short “bleach blonde” hair. Again, he described
her as looking “kind of ragged, kind of rough,” but this time he
said she was not wearing makeup. Dworak was again shown a
picture of Hamilton, and he again denied recognizing her.
On July 22, detectives executed a search warrant on
Dworak’s home and place of business. During the search,
Dworak spoke with detectives; an audiotape of this interview
was played for the jury. Again, he was shown a photograph of
Hamilton and said he did not recognize her. Dworak was told
that physical evidence implicated him in a sexual assault, to
which he responded, “I don’t mess with little kids,” and again
stated he did not recognize Hamilton. He reiterated that outside

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of his marriage he had only been with the three prostitutes he
had already described and that he did not think Hamilton could
be one of them. Dworak was arrested at the conclusion of the
interview.
At the time of Hamilton’s death, Dworak drove a white
pickup truck similar in style to that driven by Hamilton’s father.
Following his arrest in 2003, Dworak’s truck was searched. A
stain on the driver’s seat reacted to a screening test, indicating
it may have been human blood, but the sample was too small to
confirm. No DNA was found in the stain.
The jury was taken to view four locations relevant to the
prosecutor’s case: the outside of Zeober’s home; the location of
the Ralphs store; the south end of Mussel Shoals Beach, where
Hamilton’s body was found; and the north end of the beach,
where a patrol officer from the Ventura Port District opined that
Hamilton might have drowned based on the tides and currents
at the time of her death. Dworak was known to fish and picnic
at Mussel Shoals Beach, and he once told a friend of his that “if
they went there early enough, nobody else would be there.”
2. Defense Case
Scott Osler, one of Dworak’s best friends, was with
Dworak from 11:00 a.m. to 3:00 p.m. on April 21, shooting pool
at the Hilltop Bar in Oak View. He testified that Dworak picked
him up that day in his white pickup truck, which had a toolbox
in the bed (in contrast to a similar truck driven at the time by
Hamilton’s father).
Dr. Robert Bux was an associate coroner and medical
examiner for EI Paso County, Colorado. Before testifying, Dr.
Bux reviewed the autopsy photographs, the death investigation
report, autopsy report, and Dr. O’Halloran’s trial testimony. Dr.

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Bux testified that he could not form an opinion to a medical
certainty that Hamilton’s death was a homicide instead of an
accident. In his opinion, Hamilton was not manually strangled
because she lacked “congestion” above the level of strangulation,
bruising around her neck, fractures to her thyroid cartilage, or
petechiae on her lungs. In his opinion, the fact that the
abrasions on her neck were horizontal rather than vertical was
inconsistent with manual strangulation. He also could not form
an opinion to a medical or scientific certainty that Hamilton had
been raped, in the absence of injury to the vaginal region or
inner thighs. Based on the toxicology report, Dr. Bux opined
that Hamilton would not have been a “passive individual”
during a sexual assault and would have defended herself.
Finally, he opined that her postmortem injuries were consistent
with being dragged on the ocean floor and against the rocks, and
that her premortem injuries could have occurred during the act
of drowning. He agreed that the evidence showed that Dworak’s
sperm had been deposited “recently” before death but said he
was not aware of anything that could determine whether it had
been deposited within minutes or a few hours.
B. Penalty Phase
The prosecution’s case in aggravation primarily relied on
evidence from the guilt phase trial concerning the circumstances
of the charged crime and Dworak’s prior felony conviction for
rape and sexual penetration with a foreign object (and related
criminal activity involving force or violence). The following
additional evidence was presented at the penalty phase:
Hamilton’s father and grandfather testified about how
Hamilton’s death affected them and their families, including
descriptions of her unique qualities as a person such as her

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artistic and musical abilities. The court also permitted the
introduction of one photograph of Hamilton playing the piano
and two pieces of her artwork. Recalling his last phone call with
Hamilton (about picking her up at the grocery store parking lot
around midnight), her father blamed himself in part for what
happened and said he felt he had let her down.
Rather than recalling Cynthia W. to the stand, the
prosecutor called Allen Brambrink, a Napa County Sheriff’s
Department employee, to testify about the impact of the crime
on Cynthia W. Brambrink testified that he knew Cynthia W. as
a fellow county employee. When he saw her on the day of the
crime, her hand was covered with a large bandage. He put his
arm around her and could feel her tremble as she hugged him.
He explained that there was “[s]omething about her demeanor,”
adding, “She needed something, and I — I just responded to my
instincts.”
Dworak called nine witnesses at the penalty phase: eight
members of his family and a corrections expert. His niece
testified to their close relationship; Dworak never acted
inappropriately with her, and she did not believe he raped
Cynthia W. or raped and killed Hamilton. Dworak’s older
brother and his sister-in-law described him as a good and
helpful person; Dworak’s older sister and his brother-in-law
offered similar testimony. His sister testified that she did not
believe Dworak raped Cynthia W. and acknowledged that she
sent a card to Cynthia W. on the anniversary of the crime that
read in part, “Happy Anniversary and many, many more. Just
a little something for you to remember your RAPE. May you get
AIDS, bitch. Having your son lie to cover up your blindness of
being able to see your true rapist!” (Double underscoring
omitted).

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Dworak’s mother described him as “a loving, outgoing
young man.” She did not want to see him executed because he
had “too much to offer.” His mother-in-law described him as
helpful. She had never seen him act inappropriately with
anyone. She was not aware before the trial that he had been
convicted of rape.
Dworak’s wife, Susannah, testified that she loved him
deeply and that he was very close with his family. Dworak had
told Susannah that he was wrongly convicted of raping Cynthia
W. She acknowledged that they would argue about money and
went through marriage counseling at the end of 2001. She said
their marriage was getting better and they were thinking of
starting a family before his arrest.
James Esten, an expert on the California prison system,
opined that Dworak would be an “above average” inmate with
useful skills as a teacher’s aide based on his prior incarceration
record. He acknowledged that Dworak obtained early release
on his prior conviction for good behavior and would not have the
same incentives while serving a sentence of life without the
possibility of parole.
II. GUILT PHASE ISSUES
A. Exclusion of Defense Evidence
Before trial, and over the opposition of defense counsel,
the prosecution moved to exclude defense evidence relating to
third party culpability and victim character. Dworak contends
the trial court erred in granting these motions. We hold that
the trial court did not abuse its discretion in excluding this
evidence.

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1. Third Party Culpability
(a) Facts
The day after Hamilton’s body was found, police searched
Robyn Jones’s home, the last place Hamilton was seen before
her murder, with Jones’s consent. Among other items,
detectives found a bucket in the carport that contained a pair of
wet, sandy jeans. Jones told the detectives she did not know
where they had come from. One year later, Jones told detectives
that she remembered two of her friends, Jay Campbell and
Cindy Kinnaird, had gone to the beach on a date “ ‘the night
Crystal was killed.’ ” Jones assumed they had come to her house
to change clothes, an assumption confirmed by both Campbell
and Kinnaird in separate statements to detectives. DNA
evidence obtained from the jeans was later matched to a sample
provided by Campbell. The prosecutor moved to exclude any
testimony or evidence regarding the jeans, arguing “there was
never anything connecting” the jeans to the crime.
Around the same time Jones told officers about Campbell
and Kinnaird, she also told friends and detectives that her
friend Danny Carroll may have been involved in Hamilton’s
rape and murder. Moving to exclude any evidence regarding
Carroll, the prosecutor described him as “a long time drug user,
low-level dealer, and occasional boyfriend” of Jones, adding that
Dworak’s “[m]arginal evidence” linking Carroll to the crime was
insufficient to satisfy the admissibility standard set in People v.
Hall (1986) 41 Cal.3d 826 (Hall).
Opposing the prosecutor’s motion to exclude this evidence,
Dworak pointed to statements from Jones that Carroll shaved
his mustache and pubic hair shortly after the time of the crime;
statements from Zeober that Carroll had stolen Jones’s car on

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the night that Hamilton was last seen and that it had a broken
window and was full of sand when recovered; and statements
from Zeober that Carroll commented on his desire to have a
relationship with Hamilton. Zeober later admitted he did not
actually hear this latter comment but was only speculating as to
what “could have happened.” Dworak also pointed to evidence
that a computerized voice stress analysis conducted by
detectives indicated that Carroll was deceptive, though the
prosecutor countered that the test was administered poorly.
Dworak also sought to introduce letters from Carroll to Jones
offering his own speculations and musings as to what might
have happened to Hamilton. As the trial court observed, these
letters did not contain any suggestion that Carroll was involved
in the crime. Collectively, Dworak argued, these facts “support
an inference that Danny Carroll was involved, in some way, with
the death of Crystal Hamilton.”
The court granted both of the prosecutor’s motions. As to
Campbell’s jeans, the court found no evidence connecting either
the jeans or Campbell himself to Hamilton. Regarding Carroll,
the court found there was no evidence “that actually puts
[Carroll] in proximity” to Hamilton or linking any of the
proffered evidence to the crime here. The court described the
evidence proffered by Dworak as “weak[]” and found it would
“not meet[] the threshold requirement that would reasonably
create a doubt” as to Dworak’s guilt.
(b) Discussion
We review the trial court’s decision to admit or exclude
evidence for abuse of discretion. (People v. Vieira (2005) 35
Cal.4th 264, 292.) We have rejected any special rule governing
evidence of third party culpability, explaining that “courts

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should simply treat third-party culpability evidence like any
other evidence: if relevant it is admissible ([Evid. Code, ]§ 350)
unless its probative value is substantially outweighed by the
risk of undue delay, prejudice, or confusion ([id., ]§ 352).” (Hall,
supra, 41 Cal.3d at p. 834.) In making this assessment, courts
should be mindful that third party evidence “need not show
‘substantial proof of a probability’ that the third person
committed the act; it need only be capable of raising a
reasonable doubt of defendant’s guilt.” (Hall, at p. 833.) Hall
explained that, in general, “evidence of mere motive or
opportunity to commit the crime in another person, without
more, will not suffice to raise a reasonable doubt about a
defendant’s guilt: there must be direct or circumstantial
evidence linking the third person to the actual perpetration of
the crime.” (Ibid.; see People v. Prince (2007) 40 Cal.4th 1179,
1242.)
We see no abuse of discretion in the trial court’s decision
to exclude evidence or testimony relating to Carroll or to the
jeans linked to Campbell found in Jones’s carport. As the trial
court explained, there was no evidence placing Carroll in
proximity to Hamilton at the time of her death, and any link
between the jeans found in Jones’s garage and Hamilton’s death
rested on speculation. Although the jeans could be seen as
circumstantial evidence that Campbell was involved in
Hamilton’s death, such an inference requires speculation that
the sand and water on the jeans were from the beach on which
Hamilton’s body was found, combined with additional
speculation that this was the result of Campbell’s presence at
Hamilton’s murder and not, as Campbell stated, a separate visit
to the beach that same weekend. The trial court reasonably
concluded that the probative value of this evidence related to

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Carroll and Campbell, which produced only speculative
inferences, was substantially outweighed by the risk that it
would cause undue delay, prejudice, or confusion.
For the same reasons, we reject Dworak’s further
contentions that the trial court’s exclusion of the evidence
deprived him of his rights to present a defense, to compulsory
process, and to confrontation, and thereby also violated his right
to a reliable penalty determination under the Eighth
Amendment to the federal Constitution. (People v. Prince,
supra, 40 Cal.4th at p. 1243.)
2. Victim Character Evidence
Rachel Daniels had been one of Hamilton’s closest friends.
According to the prosecutor’s motion in limine, Daniels was “a
regular drug-user, and frequently had relationships with men to
exchange for dope and/or money.” Through Daniels, Hamilton
met John Figueroa. A few months before Hamilton’s death,
Figueroa rented a motel room where Daniels, Hamilton, Zeober,
and others “smoked drugs and partied.” Hamilton called
Figueroa the night of her death while looking for a ride home,
but no witness placed Hamilton with Daniels or Figueroa on the
weekend of her death. In a statement to police given two months
after Hamilton’s death, while in custody for being under the
influence, Daniels stated that Hamilton was not engaged in
prostitution but had been sexually active.
The prosecutor successfully moved to exclude any evidence
regarding Hamilton’s use of drugs and activities in the week
before her death, including any evidence relating to Daniels and
Figueroa. Dworak argued the evidence was relevant to explain
“to the jury the possible actions taken by . . . Hamilton at the
time this occurred,” actions “other than just going to Ralphs

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supermarket and waiting there for her father.” Specifically,
Dworak suggests, Hamilton may have contacted another person,
who “offered to give her a ride, or perhaps such things as going
to a party at a hotel room became more — another possibility of
an action for her to take.”
We find no abuse of discretion. The trial court reasonably
found such evidence to be irrelevant, as it rested solely on
speculation as to what might have occurred after Hamilton left
Jones’s home. (See People v. Morrison (2004) 34 Cal.4th 698,
711.) Nor was Dworak precluded from presenting evidence that
Hamilton may have gone somewhere other than Ralphs that
evening, as the court permitted him to cross-examine Zeober
about whether Hamilton was attempting to call older men whom
she “associated with” for a ride home that night.
B. Exclusion of Victim Photograph
Dworak next claims the trial court prejudicially erred by
admitting three photographs of Hamilton proffered by the
prosecutor while excluding a booking photograph of Hamilton
proffered by Dworak. Hamilton argues that the booking
photograph would have provided a more accurate view of
Hamilton at the time of her death and would therefore explain
why he did not recognize her from the photographs shown to him
by detectives. We find no error.
The prosecutor moved to admit three photographs of
Hamilton while she was alive. The first photograph, taken
weeks or months before Hamilton’s death, was shown to Dworak
during his first interview with detectives on May 12, 2003, and
again during his third interview on July 22, 2003. The second
photograph, taken several months earlier, was shown to Dworak
during his second interview on July 11, 2003. Each time

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detectives asked if he recognized the woman in the photograph,
and each time he denied recognizing Hamilton. Over Dworak’s
objection, the trial court found these two photographs were
“clearly admissible since they were photographs shown [to
Dworak] during the course of this investigation, and he denied
knowing the person depicted in those photographs.”
The third photograph was taken approximately two years
before Hamilton’s death. It depicted Hamilton holding a cat
while standing in front of a fireplace with family photographs
behind her. In the picture, Hamilton was wearing the type of
jewelry she normally wore, including a bracelet the prosecutor
argued would have created the type of bruising observed on her
wrist during the autopsy. Again over Dworak’s objection, the
trial court found the photograph to be admissible but ordered
that it be cropped and blurred to depict only the articles of
jewelry and not the cat or family photographs.
Dworak does not renew his objection to the three admitted
photographs. Instead, he limits his argument to the trial court’s
purported error in denying his own motion to admit a booking
photograph of Hamilton taken at the time of one of her juvenile
arrests. According to defense counsel, the prosecutor’s
photographs would “presumably reflect what . . . [Hamilton]
looked like when she was not using drugs” and so were
irrelevant to show what she would have looked like “when she
was using drugs and ‘on the street.’ ” By contrast, defense
counsel argued, the booking photograph would “more accurately
reflect[] how she appeared when she was using drugs and how
she may have appeared to [Dworak] when he came into contact
with her.”

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The court denied Dworak’s motion to admit Hamilton’s
booking photograph, explaining there was no showing that
Hamilton was under the influence of drugs in the photograph,
which was the sole basis proffered by Dworak to admit the
photograph. “[W]ithout that additional link,” the court
explained, the photograph would not be admitted.
As presented by Dworak in his motion to admit the
photograph, the relevance and thus admissibility of the booking
photograph depends on the existence of the foundational fact
that it more accurately depicted Hamilton on the night at issue
because it showed her under the influence of narcotics. “The
determination regarding the sufficiency of the foundational
evidence is a matter left to the court’s discretion.” (People v.
Brooks (2017) 3 Cal.5th 1, 47, citing People v. Lucas (1995) 12
Cal.4th 415, 466.) The trial court reasonably concluded that
Dworak had not laid a sufficient foundation for this evidence,
and we find no abuse of discretion in its decision to exclude the
evidence.
C. Exclusion of Newspaper Articles
During Dworak’s first interview with the detectives in this
matter, Detective Debbie Rubright told Dworak that they were
investigating a crime that occurred two years ago involving a
vehicle that matched a description of his car. She emphasized
it was “still an ongoing investigation” so they would “only
release a little bit of information as possible” during the
interview. One of the detectives then showed Dworak a picture
of Hamilton and asked whether he recognized her or had seen
her in April 2001. Dworak asked, “How old is she?” Detective
Melissa Smith replied, “I think she’s 19. She would have been.”
Dworak then stated, “She would have been.” Shortly thereafter,

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 PEOPLE v. DWORAK
Opinion of the Court by Liu, J.

Detective Rubright stated that they were going to continue
investigating the crime, to which Dworak replied, “Well, yes it
is if you have a deceased victim. Yeah, it something you guys
are gonna [sic] continue as long as it takes.” The transcript of
the interview does not include any prior statement by the
detectives that they were investigating a homicide. The
prosecutor relied on this statement in her closing argument,
referring to it as a “one of the absolutely best pieces of evidence
in this case” and “an admission” of guilt because the detectives
had not yet told Dworak that the victim was dead.
After the close of evidence from both parties, Dworak
moved to introduce into evidence three newspaper articles from
April 2001 concerning Hamilton’s death. Dworak argued the
articles were relevant to explain his statement to the detectives
that the victim was deceased because it was a “matter of
common knowledge throughout the county of Ventura” that
Hamilton had died, and that the coroner had concluded her
death was a homicide. The trial court denied the motion,
agreeing with the prosecutor that Dworak had not laid a proper
foundation for the evidence.
We agree with the trial court that Dworak made no offer
of proof that he had read the articles before he was interviewed
by the detectives. Without this foundation, the trial court did
not abuse its discretion in excluding evidence that had not been
shown to have any probative value. (Evid. Code, §§ 403, 352; cf.
People v. Curl (2009) 46 Cal.4th 339, 360 [affirming exclusion of
newspaper articles offered to show that a witness contrived his
testimony based on news reports when there was no evidence
the witness had seen the articles].) As we have previously
explained, application of the ordinary rules of evidence — here,
the requirement to lay a proper foundation — does not

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 PEOPLE v. DWORAK
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“impermissibly infringe on defendant’s right to present a
defense.” (People v. Morrison, supra, 34 Cal.4th at p. 725, citing
People v. Ramos (1997) 15 Cal.4th 1133, 1178.)
D. Evidence of Other Crimes
As noted, the trial court admitted evidence of Dworak’s
prior convictions for sexual offenses under Evidence Code
section 1108, a ruling we review for abuse of discretion. (People
v. Daveggio and Michaud (2018) 4 Cal.5th 790, 824.) Dworak
challenged the admissibility of this evidence below, and he
renews those arguments on appeal. He also contends for the
first time on appeal that the jury was improperly instructed on
the relevance of this evidence. We reject these claims.
1. Admissibility
As a general rule, “propensity evidence is not admissible
to prove a defendant’s conduct on a specific occasion.” (People v.
Jackson (2016) 1 Cal.5th 269, 299; see Evid. Code, § 1101, subd.
(a).) But Evidence Code section 1108, subdivision (a) provides
an exception to this rule: “In a criminal action in which the
defendant is accused of a sexual offense, evidence of the
defendant’s commission of another sexual offense or offenses is
not made inadmissible by Section 1101, if the evidence is not
inadmissible pursuant to Section 352.” Evidence Code section
352, in turn, provides that “[t]he court in its discretion may
exclude evidence if its probative value is substantially
outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial
danger of undue prejudice, of confusing the issues, or of
misleading the jury.” “In short, if evidence satisfies section
1108, and is not excluded under section 352, admission of that
evidence to prove propensity is permitted.” (People v. Molano

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 PEOPLE v. DWORAK
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(2019) 7 Cal.5th 620, 664, citing People v. Daveggio and
Michaud, supra, 4 Cal.5th at p. 823.) As a reviewing court, we
accord deference to a trial court’s determination that the
probative value of a particular piece of evidence outweighs any
danger of prejudice. (See People v. Miles (2020) 9 Cal.5th 513,
587, 587–588 [“ ‘[T]he court has broad discretion under Evidence
Code section 352’ ” and reviewing courts “ ‘ “will not disturb a
trial court’s exercise of discretion under Evidence Code section
352 ‘ “except on a showing that the court exercised its discretion
in an arbitrary, capricious or patently absurd manner that
resulted in a manifest miscarriage of justice” ’ ” ’ ”].)
Dworak was accused of the sexual offense of rape and with
the special circumstance of murder in the commission of rape.
Under Evidence Code section 1108, evidence of his prior sexual
offenses was not inadmissible under Evidence Code section 1101
to show Dworak’s propensity to commit the sexual offense of
which he was charged and upon which the murder charge and
the special circumstance allegations were based, so long as the
evidence was not inadmissible under Evidence Code section 352.
We have previously rejected the argument raised here by
Dworak that admission of prior crimes under Evidence Code
section 1108 violates the constitutional right to due process and
a fair trial. (See, e.g., People v. Rhoades (2019) 8 Cal.5th 393,
415.)
“By reason of [Evidence Code] section 1108, trial courts
may no longer deem ‘propensity’ evidence unduly prejudicial per
se,” but trial courts “must engage in a careful weighing process
under [Evidence Code] section 352.” (People v. Falsetta (1999)
21 Cal.4th 903, 916, 917 (Falsetta).) It is this discretion to
exclude propensity evidence under Evidence Code section 352
that “saves section 1108 from defendant’s due process

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challenge.” (Falsetta, at p. 917.) The admissibility of such
evidence “ ‘is entrusted to the sound discretion of the trial judge
who is in the best position to evaluate the evidence.’ ” (Id. at
pp. 917–918.) We have instructed that the trial court’s
determination should be guided by such factors as the “nature,
relevance, and possible remoteness” of the evidence, “the degree
of certainty of its commission and the likelihood of confusing,
misleading, or distracting the jurors from their main inquiry, its
similarity to the charged offense, its likely prejudicial impact on
the jurors, the burden on the defendant in defending against the
uncharged offense, and the availability of less prejudicial
alternatives to its outright admission, such as admitting some
but not all of the defendant’s other sex offenses, or excluding
irrelevant though inflammatory details surrounding the
offense.” (Id. at p. 917.)
As Dworak acknowledges, the prior offenses at issue were
proven beyond a reasonable doubt in a criminal trial, and the
trial court’s inquiry appropriately emphasized that the degree
of certainty that Dworak committed the prior crime was high,
given that he was convicted of that crime. Nor is there any
serious contention that the evidence was not probative on the
question of whether he committed a sexual offense in this
instance. The trial court accordingly concluded that the
evidence was not likely to “mislead or in any way confuse this
jury in terms of what it’s being admitted for.” In fact, the trial
court declined to admit evidence of a different prior sexual
offense — an alleged attempted rape — due to lack of certainty
that Dworak committed that crime, noting that such evidence
would distract jurors from the main inquiry by turning the trial
into a mini-trial on the alleged prior offense.

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Instead, Dworak contends the trial court erred in its
assessment of other factors set forth in Falsetta, including the
remoteness of the crimes, the degree of similarity, the
prejudicial impact of the evidence on the jurors, and potential
for confusing or misleading the jury, and thereby abused its
discretion in allowing the evidence.
In assessing the remoteness of the crimes, the trial court
said Dworak “spent nine years in prison following his conviction
for that rape offense and had been released on parole for just a
matter of is it three or four years in this particular case before
the offense occurred?” to which the district attorney confirmed
“not quite four.” Dworak argues the trial court overlooked the
two years he had been off probation before the charged offense
was committed. It is possible that the trial court misunderstood
the timeline and failed to note that some time had passed during
which Dworak was neither incarcerated nor on probation. It is
also possible that this level of nuance was lost in the court’s
explanation of its tentative ruling. In either case, we find no
error on the basis of the court’s remoteness inquiry. In People
v. Harris (1998) 60 Cal.App.4th 727, the court found a gap of 23
years to be “a long time” and therefore to weigh in favor of
exclusion. (Id. at p. 739.) But Harris observed that the
“ ‘staleness’ of an offense is generally relevant if and only if the
defendant has led a blameless life in the interim.” (Ibid.)
Dworak was incarcerated or on parole for the prior offenses for
the bulk of the time between the two incidents. (See People v.
Loy (2011) 52 Cal.4th 46, 62 [crimes committed 15 and 21 years
before the charged offense were not so remote as to require
exclusion where defendant had been in prison for much of the
intervening time]; People v. Pierce (2002) 104 Cal.App.4th 893,
900 [finding no error in admitting a 23-year-old rape conviction

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where the defendant had been incarcerated for 12 of those
years].)
Dworak contends that the two incidents were similar only
if the jury were to agree with the prosecutor that Hamilton was
raped. In addition, he notes a number of factual differences
between the two acts: Cynthia W. was older than Dworak, and
the incident took place outside her home and involved the use of
a knife. By contrast, Hamilton was younger than Dworak, and
there is no specific evidence as to where the crime took place or
whether a knife or other weapon was used. The proper focus of
the trial court’s inquiry is on the type of sex offense at issue
(here, forcible rape), and differences in the manner in which the
acts were committed or in the characteristics of the victims,
while potentially relevant, are not dispositive. (See People v.
Loy, supra, 52 Cal.4th at p. 63 [“ ‘[T]he charged and uncharged
crimes need not be sufficiently similar that evidence of the latter
would be admissible under Evidence Code section 1101,
otherwise Evidence Code section 1108 would serve no purpose.
It is enough the charged and uncharged offenses are sex offenses
as defined in section 1108.’ ”]; People v. Earle (2009) 172
Cal.App.4th 372, 397 [propensity evidence must tend to show
“that the defendant is predisposed to engage in conduct of the
type charged” (italics omitted)].) The points raised by Dworak
are relevant to the trial court’s exercise of discretion, but they
are not enough to show that the trial court abused its discretion.
As to the potential for undue prejudice and the likelihood
of confusion, the trial court observed that “the evidence of the
rape of Cynthia W. is certainly less inflammatory than the
evidence that’s to be received in this case concerning the alleged
rape and murder of Crystal Hamilton.” Dworak contends that
Cynthia W.’s testimony was itself prejudicial — more so than

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the fact of the convictions — as it required the jury to “hear
Cynthia W. relive her assault when she thought it was all over
and done with and had put it in the back of her mind.” But the
trial court considered this argument and took care to limit the
scope of her testimony. Dworak makes the related contention
that the trial court erred by failing to consider the availability
of less prejudicial alternatives. Defense counsel asked the court
to use the fact of the prior convictions and prison sentence to
prove the offenses rather than allow Cynthia W. to testify. But
the trial court addressed this consideration by excluding
medical evidence about the extent of Cynthia W.’s injuries and
by carefully managing the extent of the prosecution’s
questioning. The potential for undue prejudice was also likely
diminished by the trial court’s provision of CALJIC No. 2.50.01
to the jury both directly before and directly after the former
victim’s testimony. (See post, at pp. 26–28.)
Finally, Dworak argues the jury may have been confused
or distracted by a motivation to further punish him for his
crimes against Cynthia W. because the jury knew he had served
only nine years of his 18-year sentence for those crimes, a point
emphasized by the prosecutor during her closing argument.
Dworak did not raise this concern in the trial court; in fact, while
arguing about the type of evidence that should be permitted
regarding the crimes against Cynthia W., defense counsel
acknowledged, “The fact that Mr. Dworak spent time in prison
for that conviction is appropriate.” In Falsetta, we explained
that “the prejudicial impact of the evidence is reduced if the
uncharged offenses resulted in actual convictions and a prison
term, ensuring that the jury would not be tempted to convict the
defendant simply to punish him for the other offenses, and that
the jury’s attention would not be diverted by having to make a

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separate determination whether defendant committed the other
offenses.” (Falsetta, supra, 21 Cal.4th at p. 917, italics omitted.)
The fact of Dworak’s release on parole might have been relevant
to the Evidence Code section 352 inquiry if Dworak had raised
it at the time. But it would not have precluded the trial court
from finding the prior crimes evidence more probative than
prejudicial.
In sum, we cannot say that the trial court’s approach, even
if not the only approach available, was an abuse of discretion.
2. Instructional Claim
Dworak also contends that the trial court erred when it
instructed the jury with CALJIC No. 2.50.01 before and after
Cynthia W.’s testimony. As given, CALJIC No. 2.50.01 provided
in relevant part: “If you find that the defendant committed a
prior sexual offense, you may, but are not required to, infer that
the defendant had a disposition to commit sexual offenses. If
you find that the defendant had this disposition, you may, but
are not required to, infer that he was likely to commit and did
commit the crimes of which he is accused. [¶] However, if you
find beyond a reasonable doubt that the defendant committed
prior sexual offenses, that is not sufficient by itself to prove
beyond a reasonable doubt that he committed the charged
crimes. If you determine an inference properly can be drawn
from this evidence, this inference is simply one item for you to
consider, along with all other evidence ultimately received in
this trial, in determining whether the defendant has been
proved guilty beyond a reasonable doubt of the charged crimes.
[¶] Unless you are otherwise instructed, you must not consider
this evidence for any other purpose.”

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 PEOPLE v. DWORAK
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Dworak objects to the reference to “charged crimes,” in the
plural, because the prosecutor offered two theories of first
degree murder — felony-murder in the commission of rape and
malice murder — and the evidence could not permissibly be
considered for the latter offense. As explained in People v.
Walker (2006) 139 Cal.App.4th 782, “murder, standing alone
(Pen. Code, § 187, subd. (a)), is not one of the offenses
enumerated in [Evidence Code] section 1108” for which prior
sexual offenses may be admitted, and first degree murder under
a malice murder theory does not “involve as one of its necessary
adjudicated elements deriving sexual pleasure or gratification
from inflicting death, bodily injury or physical pain on his
victim.” (Id. at pp. 798, 802.) In other words, while propensity
evidence of prior sexual offenses can be considered in
determining whether a defendant has committed felony murder
where the underlying felony was a sexual offense (People v.
Story (2009) 45 Cal.4th 1282, 1294), such evidence cannot be
used to infer that a defendant has committed a murder without
an underlying sexual offense (Walker, at p. 798). On this basis,
Dworak argues the trial court erred in instructing the jury that
evidence of his prior sexual offenses may be used to find that he
“was likely to commit and did commit the crimes of which he is
accused [which includes malice murder].” (CALJIC No.
2.50.01.)
Assuming Dworak did not forfeit this claim by failing to
object at trial and thereby provide the trial court an opportunity
to consider whether a modification to the instruction might be
appropriate (see People v. Riggs (2008) 44 Cal.4th 248, 309;
People v. Hudson (2006) 38 Cal.4th 1002, 1011–1012), he still
cannot show prejudice. The jury found Dworak guilty of rape
and found the rape-murder special circumstance to be true.

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Thus, the jury necessarily found him guilty of felony-murder —
an offense for which the proffered evidence could properly be
considered.
E. Testimony Regarding Susannah Dworak
Over Dworak’s objection, the court permitted two
witnesses to testify to the demeanor of Dworak’s wife,
Susannah, around the time of Hamilton’s death, from which the
prosecutor argued it could be inferred that Dworak and his wife
had fought and that Dworak was angry and sexually frustrated
the weekend Hamilton died, leading him to seek nonconsensual
sex.
The office administrator for the oral surgery group where
Susannah worked testified that Susannah did not work on
Friday, April 20. She further testified that Susannah called in
that day to say she was taking a vacation day and would not be
in to work, and that Susannah was “upset” and “crying” during
that call. A second coworker testified that she, Susannah, and
two other employees attended a job certification conference that
weekend in Irvine. This coworker testified that Susannah was
“quite upset,” adding that “[Susannah] had a rough day Friday,
evidently, and she was, you know, very upset, very emotional,
and she showed signs of that.”
The testimony from Susannah’s coworkers linked the
prosecutor’s theory that Dworak sought nonconsensual sex the
night of Hamilton’s murder with his own statements to
investigators that when he and Susannah were not getting
along, he would become sexually frustrated and would seek out
sexual encounters. The prosecutor relied on this testimony
during closing argument to characterize Dworak as “angry,”
adding that “you know that he and his wife got in a huge fight

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Opinion of the Court by Liu, J.

that weekend” and that Susannah “called in to work, crying and
upset,” and was upset the whole weekend. The prosecutor
continued, “And suddenly, [Dworak’s] anger at his wife, his
complaints about how he doesn’t get to do anything and his glee
about his wife being out of town, talking . . . about how when
the cat’s away, the mouse can play, suddenly, that all makes
much more sense. He’s got the motive. He’s got the desire. And
now he’s got the opportunity to do what he did to Crystal
Hamilton.” The prosecutor returned to the same point
repeatedly in her argument.
Dworak objected to this testimony on the grounds that it
was irrelevant and more prejudicial than probative.
Specifically, Dworak argues there was no evidence as to the
reason why Susannah was upset. But Dworak’s own statements
to investigators that he and Susannah were having marital
problems around the time of Hamilton’s death, that Susannah
was “just a raging bitch basically,” and that they were fighting
“all the time,” as well as his neighbor’s testimony that Dworak
regularly complained that Susannah nagged him and was
“riding his case,” provided a basis from which the jury could
rationally infer that Susannah was upset because she and
Dworak had been fighting and that Dworak therefore had a
motive to seek nonconsensual sex on the weekend of Hamilton’s
death. In light of this other evidence and the prosecutor’s case
as a whole, we cannot say that the trial court erred in finding
this testimony — consisting of five lines of testimony from two
minor witnesses — more probative than prejudicial.
F. Testimony from Victim’s Father
Dworak contends the trial court erred in permitting the
prosecutor to elicit testimony from the victim’s father,

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 PEOPLE v. DWORAK
Opinion of the Court by Liu, J.

Lieutenant Colonel Hamilton, about her future plans in
violation of state evidentiary rules and his confrontation right
under the federal Constitution. We conclude that the trial court
properly admitted the evidence under the exception to the
hearsay rule set forth in Evidence Code section 1250.
During Lieutenant Colonel Hamilton’s testimony, the
prosecutor asked whether Crystal had spoken to him about her
future. Dworak objected, and a hearing was held at sidebar.
The prosecutor explained that based on Dworak’s opening
statement that Hamilton was neither raped nor murdered, “it
appears as though there will be an implication that this could
have been either a suicide or an accidental death wherein
Crystal wandered off out into the ocean or did something to —
that amounts to taking her own life.” The trial court overruled
Dworak’s hearsay objection, explaining that such testimony
“would certainly be probative if in fact she is discussing with her
dad future plans to either continue her education or other
career-related activities, things of that nature which would
suggest that she would not be a person, as far as [Lieutenant]
Colonel Hamilton might know, that might be inclined to do
something to hurt herself.” Defense counsel then clarified that
it was “never the intent of the defense in this matter to raise any
kind of issue that this young lady committed suicide, never.”
The trial court responded that it expected any testimony
regarding Crystal’s future plans to be very brief, and the
prosecutor agreed.
In front of the jury, Lieutenant Colonel Hamilton was
again asked whether, in April 2001, Hamilton spoke of her
intentions in the “near future.” He answered, “There were a
couple of things she was looking at. One longer range was
college. A shorter range, something in the medical field, and she

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Opinion of the Court by Liu, J.

thought perhaps the Air Force, air evacuation, flight nurse
basically.” Dworak never raised any suggestion Hamilton’s
death may have been the result of suicide, but the prosecutor
nevertheless returned to that point in her closing argument:
“This girl had been talking about going to college. She had been
talking about joining the Air Force, maybe becoming a nurse in
the Air Force, who spent all Saturday trying to call her dad to
come get her and who does get in touch with her dad to come get
her. She tells Matt she’s going to be leaving soon. She wants to
go home. Suddenly she decides to end it all?”
There is some ambiguity in the record as to the basis upon
which the trial court admitted this evidence. After defendant
objected on relevance and hearsay grounds, the prosecutor
argued that Dworak was “going to attempt to prove this was no
murder” and that the prosecution was “entitled to present
evidence [in response] that this is not a girl who’s planning on
taking her own life. She made plans about going to college,
getting a job, joining the military. She was a normal, happy
kid.” Defense counsel responded, “It’s hearsay,” and the
prosecutor replied, “Statement of intention.” These comments
indicate that the prosecutor sought admission of the statements
under the Evidence Code section 1250 hearsay exception, which
applies to “a statement of the declarant’s then existing state of
mind . . . including a statement of intent,” (id., subd. (a)) in order
to prove the truth of the matter asserted, i.e., Hamilton “made
plans about going to college, getting a job, joining the military.”
The trial court overruled the objection, explaining that the
evidence “would certainly be probative if in fact she is discussing
with her dad future plans to either continue her education or
other career-related activities, things of that nature which
would suggest that she would not be a person, as far as

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[Lieutenant] Colonel Hamilton might know, that might be
inclined to do something to hurt herself.” The prosecutor during
closing argument relied twice on the truth of Hamilton’s
statements, describing Hamilton as “[a] young girl with her
whole life ahead of her who’s thinking about joining the Air
Force, going off to college.” Other statements in her closing
argument adhere more closely to the limited view of the
evidence; for example, the prosecutor argued against any idea
that Hamilton’s death was an accident or suicide, asserting
“[t]his girl had been talking about going to college [and] about
joining the Air Force, maybe becoming a nurse in the Air Force.”
Evidence Code section 1250, subdivision (a) provides in
relevant part that “evidence of a statement of the declarant’s
then existing state of mind, emotion, or physical sensation
(including a statement of intent, plan . . . ) is not made
inadmissible by the hearsay rule when: [¶] (1) The evidence is
offered to prove the declarant’s state of mind, emotion, or
physical sensation at that time or at any other time when it is
itself an issue in the action; or [¶] (2) The evidence is offered to
prove or explain acts or conduct of the declarant.” “If offered to
prove the declarant’s state of mind, the statement may be
introduced without limitation, subject only to [Evidence Code]
section 352.” (People v. Ortiz (1995) 38 Cal.App.4th 377, citing
People v. Noguera (1992) 4 Cal.4th 599, 622.)
Although the record is not as clear as it might be, it
appears the trial court admitted the evidence under the hearsay
exception set forth in Evidence Code section 1250. There is no
error here, as Hamilton’s state of mind was fairly at issue to the
extent there may have been some question as to whether she
committed suicide. Her statements to her father regarding
future plans, to the extent they were true, were probative of her

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disinclination to commit suicide. Under the hearsay exception
set forth in Evidence Code section 1250, the statements were
admissible as to their truth, and the prosecutor was entitled to
rely on the truth of the statements in his closing argument.
Evidence admitted under Evidence Code section 1250 is
subject to the limitation set forth in section 1252, which
provides: “Evidence of a statement is inadmissible under this
article if the statement was made under circumstances such as
to indicate its lack of trustworthiness.” “A statement is
trustworthy within the meaning of section 1252 of the Evidence
Code when it is ‘ “made in a natural manner, and not under
circumstances of suspicion.” ’ ” (People v. Harris (2013) 57
Cal.4th 804, 844, quoting People v. Ervine (2009) 47 Cal.4th 745,
778–779.) As in Harris, there is no indication that the
statements at issue were made under coercion or “with an intent
to deceive.” (Harris, at p. 844.) We find no abuse of the court’s
discretion in allowing this brief testimony regarding Hamilton’s
statements of her future plans.
In addition to his state law evidentiary claim, Dworak
contends that the trial court’s erroneous admission of this
hearsay testimony violated his right to confrontation and due
process under the federal Constitution. (U.S. Const., 5th, 6th,
14th Amends.) Because the statements were admitted for their
truth, the confrontation clause right as articulated in Crawford
v. Washington (2004) 541 U.S. 36, 53–54, is implicated. As
Crawford explained, “admission of testimonial statements of a
witness who did not appear at trial” is not permitted unless the
witness “was unavailable to testify, and the defendant had had
a prior opportunity for cross-examination.” (Ibid.) The issue
was not litigated below; however, there is no evidence indicating
that the statements were “testimonial” hearsay as the United

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States Supreme Court has delineated that term. Hamilton’s
statements “were not made to law enforcement officers, nor were
they otherwise made under circumstances suggesting a primary
purpose of creating evidence for defendant’s prosecution.”
(People v. Rangel (2016) 62 Cal.4th 1192, 1217.) The statements
were therefore not testimonial and do not implicate the
confrontation right.
Even if we were to assume error, it would be harmless
beyond a reasonable doubt. The testimony at issue comprised
just 13 lines of testimony. Dworak notes only two instances in
which the prosecutor referred to this evidence during her closing
argument; in each case, it was coupled with other evidence
suggesting Hamilton did not intend to harm herself, including
her repeated telephone calls to her father to secure a ride home.
Moreover, the pathology evidence showing evidence of
premortem wounds, coupled with expert testimony that
Hamilton’s death followed shortly from intercourse with
Dworak, belies any notion that her death was self-inflicted. We
see no reasonable possibility that the jury would have returned
a verdict more favorable to Dworak without this brief testimony.
G. Alleged Instructional Error
Dworak contends that the trial court erroneously
instructed the jury on consciousness of guilt evidenced by
willfully false statements. We reject the claim.
The court instructed the jury with the language of CALJIC
No. 2.03: “If you find that before this trial the defendant made
a willfully false or deliberately misleading statement concerning
the crimes for which he is now being tried, you may consider
that statement as a circumstance tending to prove a
consciousness of guilt. However, that conduct is not sufficient

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by itself to prove guilt, and its weight and significance, if any,
are for you to decide.” Although Dworak lodged a blanket
objection to all instructions as given, he made no specific
objection to this instruction.
Dworak contends that this instruction improperly
duplicated more general circumstantial evidence instructions,
was unfairly partisan and argumentative, permitted the jury to
draw an irrational inference about his guilt, and intruded upon
the jury’s factfinding function. Dworak acknowledges that we
have rejected substantially similar challenges. (See, e.g., People
v. Beck and Cruz (2019) 8 Cal.5th 548, 653 [collecting cases].)
Even assuming the argument is not forfeited, Dworak offers no
persuasive reason for us to reconsider these conclusions.
H. Prosecutorial Misconduct
Dworak contends the prosecutor committed misconduct by
denigrating defense counsel and witnesses. We reject this claim.
During her closing argument, the prosecutor addressed
the opinion from the defense expert, Dr. Bux, that Hamilton was
not raped. She described Dr. Bux as a “hired mouthpiece, really,
who would say what they pay him to say,” characterized his
opinion as one “bought by the defense,” and added that “[f]or
$3,600, defendant bought an outrageous, antiquated and
preposterous opinion about rape.” Further, in mentioning the
fact that Dr. Bux agreed Hamilton suffered injuries premortem
yet said he did not see evidence of a violent struggle, the
prosecutor said: “Well, I guess for $3,600, people will say
contradictory things.” Dworak’s counsel objected to the first and
third of these statements, but the trial court overruled both
objections on the ground that counsel has wide latitude in
argument.

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 PEOPLE v. DWORAK
Opinion of the Court by Liu, J.

In response to the prosecutor’s statements, Dworak’s
counsel declared in his closing argument: “I know that the
prosecution did not mean to imply that Mr. Farley, Ms. Duffy,
or I committed a grade one felony when we called Dr. Bux on the
phone and said, ‘Dr. Bux, for $3,600, would you please come out
from Colorado to Ventura to spoon-feed perjury to a jury?’
Ladies and gentlemen, that’s a serious felony, suborning
perjury. And we don’t do that.”
“ ‘ “To preserve a misconduct claim for review on appeal, a
defendant must make a timely objection and ask the trial court
to admonish the jury to disregard the prosecutor’s improper
remarks or conduct, unless an admonition would not have cured
the harm.” ’ ” (People v. Sattiewhite (2014) 59 Cal.4th 446, 480.)
Although Dworak made timely objections to two of the
statements at issue, he did not request an admonition of the
jury. Dworak argues that requesting an admonition would have
been futile and therefore was unnecessary to preserve this issue
for review. The “general rule” requiring objection and request
for admonition to preserve a misconduct claim does not “apply
when the trial court promptly overrules an objection and the
defendant has no opportunity to request an admonition.”
(People v. McDermott (2002) 28 Cal.4th 946, 1001.) This
exception applies to both the “hired mouthpiece” and
“outrageous, antiquated and preposterous opinion” statements
made by the prosecutor about Dr. Brux set forth above. Dworak
did not object to the prosecutor’s use of the phrase “bought by
the defense” or “contradictory statements,” both of which
occurred close in time to the statements Dworak did object to.
For that reason, we will assume for the sake of argument that
the entirety of this claim is properly presented. Even so, we

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 PEOPLE v. DWORAK
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conclude that the statements at issue do not amount to
prosecutorial misconduct.
“ ‘ “Under the federal Constitution, a prosecutor commits
reversible misconduct only if the conduct infects the trial with
such ‘ “unfairness as to make the resulting conviction a denial
of due process.” ’ ” ’ ” (People v. Sattiewhite, supra, 59 Cal.4th at
p. 480.) Misconduct that falls short of a federal due process
violation may nevertheless violate state law if it “involves the
use of deceptive or reprehensible methods to persuade the court
or jury.” (People v. Watkins (2012) 55 Cal.4th 999, 1031.) In
evaluating such a claim, we are cognizant that “ ‘[a] prosecutor
is given wide latitude to vigorously argue his or her case and to
make fair comment upon the evidence, including reasonable
inferences or deductions that may be drawn from the evidence.’ ”
(People v. Dykes (2009) 46 Cal.4th 731, 768.) We review claims
of prosecutorial misconduct under an abuse of discretion
standard (People v. Alvarez (1996) 14 Cal.4th 155, 213), asking
whether there is a reasonable likelihood the jury construed the
remarks in an objectionable fashion (People v. Edwards (2013)
57 Cal.4th 658, 734).
Dworak contends that the prosecutor’s statements
amounted to prosecutorial misconduct because “she suggested
to the jury it should in effect disregard Dr. Bux’s testimony
because defense counsel had paid him to say what counsel
wanted him to say.” We rejected a similar claim in People v.
Cook (2006) 39 Cal.4th 566, 614. In Cook, the prosecutor
commented on the fees paid to a defense expert witness, stating
“ ‘for 124 hours at $225 per hour, Dr. Wilkinson comes up with
something that excuses this man’s responsibility.’ ” (Id. at
p. 613.) The defendant argued that this statement “impugn[ed]
defense counsel’s integrity for having, in effect, bought the

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expert’s testimony.” (Id. at pp. 613–614.) Although the claim
was forfeited by the defendant’s failure to object at trial, we went
on to explain that “although counsel may not denigrate the
integrity of opposing counsel, an attorney is free to argue that
the opinions of paid expert witnesses may be biased.” (Id. at p.
614; see also People v. Parson (2008) 44 Cal.4th 332, 360 [“a
prosecutor ‘is free to remind the jurors that a paid witness may
accordingly be biased and is also allowed to argue, from the
evidence, that a witness’s testimony is unbelievable, unsound,
or even a patent “lie” ’ ”].) Similarly here, it is not likely that the
jury took the prosecutor’s statements regarding the expert
witness’s payment to mean defense counsel lacks integrity
because he paid an expert to say anything he wanted.
Dworak relies on People v. McLain (1988) 46 Cal.3d 97 for
the proposition that it is impermissible for a prosecutor to argue
that defense counsel fabricated a defense and procured a
witness’s perjury. But the prosecutor’s actions here stopped
short of the actions in McLain, where the prosecutor outright
stated defense counsel shopped around and found somebody
willing to come in and lie. (McLain, at p. 112.) The prosecutor
did use hyperbolic language in calling the expert a “hired
mouthpiece,” but we have said that using colorful or hyperbolic
language generally will not by itself establish prosecutorial
misconduct. (See People v. Peoples (2016) 62 Cal.4th 718, 793.)
I. Review of Sealed Material
Before and during trial, the court denied Dworak access to
a witness’s medical records following an in camera review.
Dworak now asks this court to review those records to determine
whether the trial court abused its discretion in denying him

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 PEOPLE v. DWORAK
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discovery of the records. We find no error in the trial court’s
ruling.
1. Background
As discussed, Dworak’s neighbor testified about her
interactions with Dworak in April 2001. Before trial, the
prosecutor moved to exclude evidence relating to the witness’s
treatment for Vicodin addiction at a treatment hospital in
November 2004. Dworak subpoenaed all of the witness’s
psychological and psychiatric records from the hospital in order
to determine whether the severity of her addiction would have
affected her ability to perceive and recollect events from that
time period. The court agreed that such evidence would be
relevant and ordered the hospital to deliver the records under
seal to the court.
After reviewing the records, the trial court ruled that
Dworak was not entitled to pretrial discovery of the records.
Citing People v. Hammon (1997) 15 Cal.4th 1117 (Hammon), the
court balanced Dworak’s right to cross-examination against the
privacy interest in those medical records and concluded that
disclosure was not warranted at that time, saying that while
“there may be a very slight bit of information that would be of
assistance to [Dworak] in this matter[,] . . . I can’t
overemphasize how slight that information is.” The court added
that it would revisit the issue depending on the scope of
Dworak’s opening statement and his cross-examination of the
witness.
During the cross-examination of this witness, defense
counsel asked, “With regard to the Vicodin that you were taking
at the time that you had this conversation with Mr. Dworak in
which he stated that he had been out in Ventura in 2001, with

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regard to the strength of the Vicodin, do you recall what the
strength was, the milligrams?” She replied, “Five milligrams,
between five and 7.5.” Based on this testimony, Dworak renewed
his request for access to the records. The court denied the
request, explaining that “having heard the testimony of the
witness now and also the opening statements of both sides, the
Court’s view is that the material that is contained in the records
themselves is of such slight value to the defense in terms of
cross-examination of the witness that it is not — that in
balancing the right of the defense to her right of privacy, it is
not something that would be discoverable under the facts of this
case since it is apparently the stipulation between the parties
that there was, in fact, sexual intercourse between Mr. Dworak
and the decedent in this matter.” The trial court later held an
in camera hearing outside the presence of the jury and counsel
regarding these records, the transcript of which was ordered
sealed.
2. Discussion
Dworak does not contest the trial court’s decision to review
the psychological and psychiatric records at issue in camera,
acknowledging that Evidence Code section 1014 generally
privileges confidential communication between a patient and
his or her psychotherapist. (Cf. Hammon, supra, 15 Cal.4th at
pp. 1127–1128 [psychiatric material is not generally
discoverable prior to trial]; People v. Gurule (2002) 28 Cal.4th
557, 592 [same].) Instead, Dworak contends that this court
should independently review the records to determine whether
the trial court abused its discretion when it did not provide him
with access to these records. The Attorney General does not
object to this request, although both parties request an

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Opinion of the Court by Liu, J.

opportunity to provide supplemental briefing if the court finds
any error.
“Parties who challenge on appeal trial court orders
withholding information as privileged or otherwise
nondiscoverable ‘must do the best they can with the information
they have, and the appellate court will fill the gap by objectively
reviewing the whole record.’ ” (People v. Price (1991) 1 Cal.4th
324, 493; see People v. Landry (2016) 2 Cal.5th 52, 74.) We have
reviewed the records and agree with the trial court’s assessment
that they contain little of any plausible value to the defense. The
trial court did not abuse its discretion in rejecting disclosure of
the materials.
J. Guilt Phase Cumulative Error
Dworak asserts that the combined errors during the guilt
phase warrant reversal of his conviction. With respect to the
guilt phase, we have assumed for sake of argument that the trial
court’s instruction pursuant to CALJIC No. 2.50.01 erroneously
permitted the jury to consider the evidence of Dworak’s prior
sexual assault conviction as propensity evidence as to the
nonsexual offense of malice murder. Having found no prejudice
from this assumed error, we reject Dworak’s cumulative error
claim.
III. PENALTY PHASE CLAIMS
A. Evidence and Argument Regarding Lack of
Remorse
Dworak claims the trial court erred by allowing evidence
and argument suggesting Dworak lacked remorse for the
crimes. The prosecutor arguably crossed the line by briefly
arguing that evidence of lack of remorse constituted aggravating

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evidence in this matter. But we need not resolve the latter
question because any error was harmless.
Before the penalty phase, Dworak moved to exclude any
evidence suggesting he lacked remorse. The trial court
tentatively denied the motion with respect to “acts or conduct at
the immediate scene of the crime . . . versus post-crime evidence”
but cautioned the prosecutor that “argument in this area can
become a mine field.”
During the prosecutor’s case in aggravation, she solicited
testimony from Dworak’s mother-in-law (over Dworak’s
objection on the ground of relevance) that she saw Dworak
“laugh and joke and be happy between April of 2001 [when
Hamilton was killed] and July 2003 [when Dworak was
arrested].” In a similar vein, the prosecutor asked Dworak’s
wife, “Did you ever in between April 22nd of 2001 and July of
2003 see any sign of what you would call remorse in your
husband.” The trial court sustained Dworak’s objection on the
ground of speculation. The prosecutor repeatedly referred to
this evidence during her closing argument to suggest Dworak
lacked remorse for the crimes.
We have routinely held that evidence of lack of remorse is
admissible so long as it does not amount to a direct or indirect
comment on the defendant’s invocation of the right to silence.
(People v. Lewis (2001) 25 Cal.4th 610, 674; People v. Bemore
(2000) 22 Cal.4th 809, 855; People v. Stansbury (1993) 4 Cal.4th
1017, 1067–1068, revd. on another ground sub nom. Stansbury
v. California (1994) 511 U.S. 318.) Dworak asks us to reconsider
those decisions but provides no reasoned basis for us to do so.
We adhere to our prior decisions and find no error in admitting

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the testimony elicited by the prosecutor during cross
examination of Dworak’s wife and mother-in-law.
But Dworak also claims the prosecutor overstepped by
relying on evidence during closing argument as an aggravating
factor. Lack of remorse is not a statutory aggravating factor. (§
190.3; see People v. Ochoa (2001) 26 Cal. 4th 398, 449, overruled
on another point in People v. Prieto (2003) 30 Cal.4th 226, 263,
fn. 14.) As a result, a prosecutor may not argue lack of remorse
as an aggravating factor at the penalty phase. (People v. Dalton
(2019) 7 Cal.5th 166, 264.) The prosecutor may, however, point
to a defendant’s lack of remorse for the purpose of
demonstrating the absence of a mitigating factor. (See People v.
Ghent (1987) 43 Cal.3d 739, 771.)
Some of the prosecutor’s comments suggesting a lack of
remorse were offered in the appropriate context of negating the
existence of certain mitigating factors. For example, the
prosecutor permissibly referred to the testimony of Dworak’s
wife and mother-in-law on how “wonderful and happy-go-lucky
the defendant was” to demonstrate a lack of mitigating section
190.3, factor (d) evidence, i.e., whether the defendant
committed the crime while under the influence of extreme
mental or emotional disturbance.
Although prosecutors can argue lack of remorse and point
to facts in the record that show the defendant was not
remorseful, they must take care not to suggest that lack of
remorse can be considered in aggravation. Other comments
from the prosecutor appeared to argue a lack of remorse as
evidence in aggravation. For example, after explaining to the
jury that she was transitioning to evidence in aggravation, the
prosecutor returned to the point that “while Crystal Hamilton’s

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Opinion of the Court by Liu, J.

father is making that awful phone call to her grandparents
telling them what had happened to her, the defendant is in Oak
View playing checkers with his mother-in-law telling jokes.”
More troubling, the prosecutor alluded to defendant’s lack
of remorse during his interview with detectives two years after
the crime as part of her argument regarding her case in
aggravation: “Two years later when the police talk to him about
his crime, when they show him a picture of her, what does he
do? Does he break down sobbing and apologizing for what he’s
done? For what happened that night? Does he admit everything
that we know he did to her but explain it in some way, give some
explanation that mitigates what he did to her? No, no, no, no.
He lies and lies. Turns on the manipulation, turns on the charm,
’cause that’s his character.” Dworak did not raise any objections
to the statements made by the prosecutor when discussing
evidence in aggravation.
In the absence of prejudice to the fairness of a trial, a
prosecutor’s errant remarks do not require reversal. (People v.
Bolton (1979) 23 Cal.3d 208, 214.) “[B]efore a federal
constitutional error can be held harmless, the court must be able
to declare a belief that it was harmless beyond a reasonable
doubt.” (Chapman v. California (1967) 386 U.S. 18, 24.) Here,
we need not resolve whether the prosecutor’s statements rise to
the level of prosecutorial misconduct because we find no
reasonable possibility that the error affected the jury’s death
verdict. The bulk of the prosecutor’s case in aggravation
concerned other evidence in support of a death verdict, including
the circumstances of the crime and Dworak’s prior instances of
violent criminal conduct including rape and forcible sexual
penetration with use of a knife. In the context of the prosecutor’s
argument as a whole, the passing comments about the

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defendant’s conduct and demeanor in the time period following
the crime did not compromise the fairness of the trial. (See
People v. Brown (2003) 31 Cal.4th 518, 554 [harmless
misconduct where prosecutor’s remarks “were brief and fleeting,
asserting nothing the evidence did not already suggest”].) We
conclude that any error in this line of argument was harmless
beyond a reasonable doubt.
B. Victim Impact Evidence
As noted, the prosecutor presented victim impact
testimony about the effect of Hamilton’s death on her family as
evidence of the circumstances of the capital crime (§ 190.3,
factor (a)) and about the effect of Dworak’s acts on Cynthia W.
as evidence of use of force and violence and prior felony
conviction (id., factors (b), (c)). Dworak does not contend that
the evidence offered here was especially inflammatory or beyond
the bounds of what we have generally recognized is permissible
penalty phase evidence. Instead, he presents three general
challenges to the admission of victim impact evidence at the
penalty phase of the trial, asking us to reconsider our prior
rejection of those claims in order to preserve the issues for later
federal review. (See People v. Schmeck (2005) 37 Cal.4th 240,
303.)
First, Dworak argues that victim impact testimony must
be limited to witnesses who were present at the crime. Second,
he argues that victim impact testimony must be limited to
characteristics of the victim known to the defendant at the time
of the crime or those that reasonably should be known. And
third, he argues that victim impact testimony must be restricted
to testimony relating to the victim of the capital crime. We have
repeatedly rejected each of these claims. (See, e.g., People v.

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Opinion of the Court by Liu, J.

Duong (2020) 10 Cal.5th 36, 73 [questioning whether evidence
of the circumstances of a noncapital crime and its direct
aftermath on the victim of that crime constitutes victim impact
evidence as it is traditionally understood and, in any event,
finding no error]; see also People v. Tully (2012) 54 Cal.4th 952,
1031 [collecting cases].) Dworak provides no persuasive reason
to depart from these precedents, and we decline to do so.
C. Cumulative Error
As noted, Dworak asserts that the combined errors during
the guilt and penalty phase warrant reversal of his conviction,
his death sentence, or both. Reviewing both the guilt and
penalty phase claims, we have assumed for sake of argument
that the trial court’s guilt phase instruction pursuant to CALJIC
No. 2.50.01 erroneously permitted the jury to consider the
evidence of Dworak’s prior sexual assault conviction as
propensity evidence as to the nonsexual offense of malice
murder; and we have assumed that the prosecutor erred in her
penalty phase argument by referring to evidence suggesting a
lack of remorse as a factor in aggravation. We conclude that
their cumulative effect does not rise to the level of prejudice
necessary to reverse Dworak’s conviction or his sentence.
D. Constitutional Challenges to the California
Death Penalty
Dworak raises myriad challenges to the constitutionality
of California’s death penalty regime. While he acknowledges we
have consistently found similar claims to be meritless, he
nevertheless asks us to reconsider our precedent. We decline to
do so.
Dworak contends that California’s capital punishment
scheme violates the Eighth Amendment because it “fails to

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provide a meaningful and principled way to distinguish the few
defendants who are sentenced to death from the vast majority
who are not.” We decline to revisit our precedent holding that
section 190.2 as construed by this court “adequately performs
the constitutionally mandated narrowing function” (People v.
D’Arcy (2010) 48 Cal.4th 257, 308) and that our state death
penalty statute is not unconstitutional for “failing to require
intercase proportionality review or disparate sentence review”
(People v. Eubanks (2011) 53 Cal.4th 110, 154).
Both this court and the high court have held that the
current application of section 190.3, factor (a), is constitutional.
(Tuilaepa v. California (1994) 512 U.S. 967, 976; People v.
Erskine (2019) 7 Cal.5th 279, 303–304; People v. Johnson (2016)
62 Cal.4th 600, 655; People v. Rountree (2013) 56 Cal.4th 823,
860.) “Nor is the death penalty statute unconstitutional for not
requiring ‘findings beyond a reasonable doubt that an
aggravating circumstance (other than Pen. Code, § 190.3, factor
(b) or (c) evidence) has been proved, that the aggravating factors
outweighed the mitigating factors, or that death is the
appropriate sentence.’ ” (People v. Suarez (2020) 10 Cal.5th 116,
190, quoting People v. Rangel (2016) 62 Cal.4th 1192, 1235.)
Though he did not object below, Dworak now argues that
CALJIC No. 8.85 was constitutionally deficient because it failed
to delete inapplicable sentencing factors, failed to delineate
between aggravating and mitigating factors, contained vague
and ill-defined factors, and limited some mitigating factors with
adjectives such as “extreme” and “substantial.” We have
previously rejected each of Dworak’s arguments regarding
CALJIC No. 8.85, and he offers no reasoned basis to reconsider
our prior decisions. (See People v. Mickel (2016) 2 Cal.5th 181,
220.)

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 PEOPLE v. DWORAK
Opinion of the Court by Liu, J.

Finally, we decline to reconsider our holding that
“California’s use of the death penalty does not violate
international law, the federal Constitution, or the Eighth
Amendment’s prohibition against cruel and unusual
punishment in light of ‘evolving standards of decency.’ ” (People
v. Mitchell (2019) 7 Cal.5th 561, 590.)
CONCLUSION
We affirm the judgment.

LIU, J.

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

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

Name of Opinion People v. Dworak
__________________________________________________________________

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

Opinion No. S135272
Date Filed: July 15, 2021
__________________________________________________________________

Court: Superior
County: Ventura
Judge: Kevin J. McGee
__________________________________________________________________

Counsel:

Diane Nichols, under appointment by the Supreme Court, for
Defendant and Appellant.

Kamala D. Harris and Rob Bonta, Attorneys General, Lance E.
Winters, Assistant Attorney General, Jaime L. Fuster and Viet H.
Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):

Diane Nichols
Attorney at Law
P.O. Box 2194
Grass Valley, CA 95945
(530) 477-7462

Viet H. Nguyen
Deputy Attorney General
300 South Spring St., 5th Floor
Los Angeles, CA 90013
(213) 269-6125