THE PEOPLE, Plaintiff and Respondent, v. KEITH THOMAS LOKER, Defendant and Appellant, 44 Cal. 4th 691

Opinion CORRIGAN, J. Defendant Keith Thomas Loker was convicted of four counts of robbery, two counts of first degree murder, and one count each of attempted murder, assault with a deadly weapon, and second degree commercial burglary. The jury also found true allegations of robbery-murder, burglary-murder, and multiple-murder as special circumstances, along with personal use of a firearm and infliction of great bodily injury. It returned a judgment of death; we affirm. I. Factual Background A. Guilt Phase 1. Prosecution Evidence Defendant did not contest the facts of the crimes.

His postarrest statements were consistent with the prosecution’s evidence. On November 23, 1991, at approximately 1:00 a.m., defendant entered an adult bookstore in Fontana. He was armed with a handgun and began firing rapidly. He shot customer Jose Lopez several times, but Lopez “played dead” and survived. A bullet struck Jennifer Widmer in the head, but did not penetrate her skull. The cashier, Randall Paul, pulled Widmer to the floor. Defendant shot Paul five times. When Paul reached for a gun, defendant fired again. Paul died from his wounds.

Defendant went to the back of the store and killed Richard Bodine by shooting him five times. He took the wallets of Lopez and Bodine. At defendant’s order, Widmer gave him the contents of the cash register. Other than when she had trouble turning off a radio, defendant was calm. He did not stumble, slur his speech, or otherwise appear intoxicated. Defendant asked Widmer to describe him. When she said he was 23 years old, he told her “16.” Defendant told Widmer to wait 10 minutes and call 911. He said he would be watching and would kill her if she left. Defendant took some merchandise on his way out of the store.

Four days later, defendant was arrested in Arizona after a high-speed chase. He was driving a white Chevrolet pickup truck. The murder weapon and items taken from the bookstore were later found in a Toyota Camry in Arizona. The victims’ wallets were recovered from a different Arizona location. Defendant described the murders and robberies to the police. He had selected the store because of its isolated location. He had gone into the store earlier in the evening, but did not have his gun. When asked what “possessed” him to commit the crimes, he responded, “Strictly drinking, you know.

It wasn’t me.” He had consumed three beers before his first visit to the store, and three more before returning. He had been drinking a six-pack a day for three months. 2. Defense Defendant conceded responsibility and presented no evidence. During closing argument, defense counsel contended his client was guilty of second degree murder or involuntary manslaughter, but not first degree murder, because he had acted on impulse without premeditation.

He argued that the killings occurred during a commercial burglary, making them second degree murders, rather than during a robbery, which would elevate them to first degree murder. Counsel told the jury that if defendant’s intoxication prevented him from forming the mental states required for robbery, burglary, or murder, he was guilty only of involuntary manslaughter. Counsel also claimed the jury could find that the robbery and burglary were incidental to the murders, and thus did not support the robbery and burglary special circumstances. B. Penalty Phase 1.

Prosecution Evidence The prosecution presented evidence of crimes committed by defendant before and after the bookstore offenses. The day before the murders, defendant robbed Frank Kim, an Arcadia store owner. Defendant put a gun to Kim’s back, covered his mouth, and threatened to shoot him if he did not “shut up.” He took Kim’s keys, Toyota Canary, and cash. After the bookstore crimes, defendant drove Kim’s Canary to Arizona. On the evening after the killings, he left a note for his mother that said, “Pray for me. I am in a lot of trouble.

I’ll call later.” The next day, he met with his cousin Tim Daulton and described the bookstore crimes. Daulton contacted the police. The day after the murders, defendant robbed a convenience store in Flagstaff, Arizona. Julie H. was the cashier. Barry H., her husband, was in the back of the store. At gunpoint, defendant forced Julie to open the cash register. He removed approximately $300. Defendant was calm, steady of speech and gait, and did not smell of alcohol. When a customer entered the store, he had Julie hide until the customer left. Defendant took a handgun from under the register.

He then went to the back of the store, where he encountered Barry H., forced him to kneel down, and shot him in the back of the head. Barry survived, but was legally blind for six months. His hearing was still impaired at the time of trial. Defendant calmly told Julie, “You’ll go with me or you’ll die here,” calling her “bitch.” He handcuffed her with plastic ties and put her in Kim’s stolen car. Julie begged for her life, telling defendant she had three young children who needed their parents, and assuring him she would not tell anyone. Defendant said that if she did not keep quiet he would shoot her.

He drove to a remote location, blindfolded Julie, and walked her to the back of the car. He undressed her, threatened to shoot her, then raped her. Defendant dressed Julie, put her back in the car, and started driving. At some point, the blindfold came off. When a police car passed in the opposite direction, defendant said, “They’re onto me.” Julie began talking about her children again, and started to pray. Defendant said, “I can’t let you go because you can identify me now,” and admitted shooting her husband.

When Julie said defendant had ruined his whole life, defendant responded that the world was going to end in eight years anyway. They passed more police cars going in the opposite direction. Ultimately, defendant pulled over and ordered Julie out of the car, saying, “I think there’s going to be a shoot-out.” After he drove away, Julie was rescued by passersby. She reported the Camry’s license number to the police. Defendant abandoned the car at a gas station. Three days later, one of defendant’s cousins saw him driving a pickup truck and contacted the police.

Defendant led a number of officers on a high-speed chase for about 40 minutes. At times he swerved at police cars, but did not hit any. He waved to news media filming the chase, which ended in a collision. Defendant told the police about the Kim robbery and the crimes against Julie and Barry H. Julie visited defendant in jail, not “for him,” but to ask him about HIV and to face her own fear. Defendant wrote Julie one or two letters of apology while incarcerated.

On one envelope he wrote something like, “You have to have a few clouds in your life to enjoy the rainbows.” The parties stipulated that defendant pled guilty in Arizona to sexual intercourse while using or exhibiting a deadly or dangerous instrument, premeditated attempted murder, armed robbery, and five counts of aggravated assault. 2. Defense Evidence Defendant called 36 witnesses. Their testimony focused primarily on his upbringing in a religious cult, exposure to his parents’ volatile relationship, rejection by his father, unrecognized emotional needs and hyperactivity, and remorse for his crimes.

Defendant was bom in 1971 in Prescott, Arizona, and lived with his family in a trailer park. The park residents were members of the Branham Prophecy or Message Church, followers of Brother Branham, whom they believed to be a prophet. Defendant’s mother was from the Daulton family; his father was a Loker. The two families constituted a significant portion of the approximately 120 residents of the park. Leo Mercer, a self-proclaimed minister, ran the park. After Brother Branham’s death in 1965, Mercer gradually became more authoritative, employing various forms of punishment.

He would ostracize people from the community and separate families. Children were beaten for minor infractions like talking during a march or not tying their shoes. Mercer would punish girls by cutting their hair, and force boys to wear girls’ clothing. There was also evidence that Mercer sexually abused children. Marietta Loker, defendant’s mother, moved to the park in 1962 with her husband Jerry Johnson and sons Danny and Mark. Mercer did not like Jerry and set out to destroy the marriage. The next year Jerry divorced Marietta, and she eventually married Roger Loker, defendant’s father.

Mercer forced Danny and Mark to live with different families for about three years. Shortly before defendant’s birth, the elder boys left the park to live with their father. Roger Loker was perceived as homosexual by church members. He was beaten so that he would have marital relations with Marietta, leading to the conception of defendant and his older sister Hannah. When defendant was between 18 and 30 months old, Marietta would leave him at home alone for an hour at a time to run errands for Mercer. Defendant did not speak, except perhaps to say “mama,” until he was three years old.

Mercer ordered Marietta to whip and slap him because “he was being stubborn.” She did so once for several hours, but could not bring herself to do it again. Other than this incident, there was no specific testimony that defendant was physically abused while in the park. Education was not valued in the church, and many children dropped out of school. Boys were expected to marry and have children at age 18. Children were taught they would either go to heaven or bum forever. People outside the church were considered “atomic fodder” who would die, while believers would be saved.

The park broke up at the end of 1974 or the beginning of 1975, when defendant was nearly four years old. Defendant’s mother was strict and physically abusive with defendant’s half brothers Danny and Mark, but after she left the park she went “to the other extreme.” Defendant had “no limitations.” Danny did not believe his mother should have had children. She allowed defendant to do things for which Danny would have been severely punished. When defendant was about four his father left the family, taking their motor home. The rest of the family moved in with defendant’s grandmother.

Defendant began bedwetting, a problem that continued into his early teens. His parents reconciled after 27 months and the family moved to Indiana, where they attended another Branham church. When defendant was about 10, he and another boy were found fondling each other. Defendant was beaten by his father, who showed him little affection or attention and favored his sister Hannah. Defendant’s father worked long hours and was away frequently. Growing up, defendant had few friends, was overweight, and did not fit in at church. He was deemed not tough enough for the Daultons, and too wild for the Lokers.

He felt worthless and disliked. Defendant was hyperactive but also, according to several witnesses, “happy-go-lucky.” As he got older he suffered from extreme mood swings, sometimes associated with alcohol or diet. Roger and Marietta had a volatile relationship. Marietta would scream and throw things; the two of them would slap each other until exhausted. Their children witnessed these confrontations, and the house was filled with tension. When defendant was in the third grade, Roger fired a gun after one fight; the children initially thought at least one parent had been shot.

Roger divorced Marietta in 1989 when defendant was about 17, blaming defendant for the breakup. He obtained a restraining order against his wife and son, and forced them to move from the house. When defendant was approximately 13, he was involved in a Peeping Tom incident. He was interested in pornography and obsessed with violent movies, repeatedly watching one in particular. In the summer of 1991, defendant said he had a gun and was “going out for” a woman who had ended a relationship with him. He was arrested for drunk driving before he could carry out the assault.

Defendant suffered no other criminal convictions before the California crimes. Marietta testified that when defendant was in an early grade in Arizona, the school told her he was “emotionally handicapped.” She did not seek help for this condition or for his hyperactivity. Defendant’s standardized test scores in Indiana showed him to be a typical sixth grader. His sixth grade science teacher characterized him as an average student with poor reading and writing skills, who wanted a lot of attention. Defendant would kick or punch other students, and the teacher was afraid to leave him unattended in the room.

In the eighth grade, he cruelly antagonized other students and had a high rate of absenteeism. School representatives testified that defendant’s parents were usually unresponsive to requests for meetings. According to Marietta, she visited the Indiana school several times. The teachers told her she was not strict enough with defendant, that he was not behaving and would not learn. She thought defendant was “very intelligent in some ways” but the teachers “just didn’t know how to work with him.” Several teachers testified that defendant’s academic and social problems were not addressed.

Under current standards, he would have been identified as an at-risk student and given special help. On the other hand, his guidance counselor believed he did not lack capability but simply chose not to do well in school. His art teacher of several years never felt defendant needed testing or additional help. His seventh grade physical and driver’s education teacher noted no emotional or psychological concerns, although defendant did have academic problems. Defendant repeated seventh grade and failed the eighth.

Ridiculed by his classmates when he repeated eighth grade, he dropped out of school sometime that year, when he was about 16 years old. On the morning of November 24, 1991, before committing the Arizona crimes, defendant described the bookstore offenses to his cousin Tim Daulton. He was crying and remorseful, and said it was like being in a dream. He was also worried about Widmer, the surviving witness, because she could identify him. The parties stipulated that after his arrest defendant expressed sorrow to his cellmate Randall Huddleston.

He seemed most remorseful for raping Julie H., acknowledging that she would always suffer emotionally. Defendant never bragged about his crimes, and engaged Huddleston in long religious discussions. Hannah testified that her brother’s execution would “absolutely devastate” her. II. Discussion A. Guilt Phase Issues 1. Admission of Photographic Evidence Defendant contends the trial court erroneously admitted an autopsy photograph of murder victim Bodine that was irrelevant, unduly prejudicial, and served only to inflame the jury.

Taken before any incisions were made, the photograph shows the left side of Bodine’s body from the head to just above the knees. Contrary to defendant’s assertion, the photograph was relevant to the prosecution’s case. The first degree murder charges were tried under the theories of premeditation and felony murder. The photograph was pertinent because it showed the “nature and placement of the fatal wounds.” (People v. Pride (1992) 3 Cal.4th 195, 243 [10 Cal.Rptr.2d 636, 833 P.2d 643].) It supported the prosecution’s theory of how the murders were committed (People v.

Crittenden (1994) 9 Cal.4th 83, 133 [36 Cal.Rptr.2d 474, 885 P.2d 887]), and illustrated the testimony of the coroner and percipient witnesses (People v. Box (2000) 23 Cal.4th 1153, 1199 [99 Cal.Rptr.2d 69, 5 P.3d 130]). The prosecution was not obligated to “accept antiseptic stipulations in lieu of photographic evidence.” (Pride, at p. 243.) Defendant’s reliance on People v.

Turner (1984) 37 Cal.3d 302, 320-321 [208 Cal.Rptr. 196, 690 P.2d 669], which held that certain crime scene photographs admitted at trial were irrelevant, is misplaced. “Turner does not purport to create a broad rule rejecting or limiting the admissibility of crime scene photographs in all felony-murder cases. Rather, the usual principles of relevance . . . apply to such evidence.” (People v. Scheid (1997) 16 Cal.4th 1, 18 [65 Cal.Rptr.2d 348, 939 P.2d 748].) The photograph was not unduly prejudicial.

While photographs of murder victims are always unpleasant, this one was not “so gruesome as to have impermissibly swayed the jury.” (People v. Smithey (1999) 20 Cal.4th 936, 974 [86 Cal.Rptr.2d 243, 978 P.2d 1171].) Moreover, when the trial court overruled his objection to the photograph, defense counsel asked for and received a cautionary instruction that the Bodine autopsy photographs were not intended to be “upsetting or inflammatory,” but only to illustrate the coroner’s testimony. Defendant claims the photograph was particularly prejudicial at the penalty phase.

However, evidence that illustrates the precise nature of the crime is admissible under

section 190.3, factor (a). (People v. Box, supra, 23 Cal.4th at p. 1200.) Moreover, a photograph that was not unduly prejudicial at the guilt phase could not be so at the penalty phase, where the “trial court’s discretion to exclude circumstances-of-the-crime evidence as unduly prejudicial is more circumscribed.” (Id. at p. 1201.) 2. Alleged Instructional Error Defendant contends the trial court committed several instructional errors. These claims are meritless. a.

Flight Instruction The court gave the jury the standard language of CALJIC No. 2.52: “The flight of a person immediately after the commission of a crime or after he is accused of a crime is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all the other proved facts in deciding the question of his guilt or innocence.

The weight to which such circumstance is entitled is ... a matter for you the jury to determine.” However, earlier the court had stated it would modify the final sentence of the instruction to say, “Whether or not evidence of flight shows a consciousness of guilt and the significance to be attached to such a circumstance are matters for your determination.” Defendant did not object when the court failed to implement this modification, thus forfeiting his claims of error. (People v. Cole (2004) 33 Cal.4th 1158, 1211 [17 Cal.Rptr.3d 532, 95 P.3d 811].) They are also meritless.

Defendant first argues that the unmodified instruction was impermissibly argumentative. However, we have held that this instruction “properly advise[s] the jury of inferences that c[an] rationally be drawn from the evidence.” (People v. Bacigalupo (1991) 1 Cal.4th 103, 128 [2 Cal.Rptr.2d 335, 820 P.2d 559]; see also People v. Mendoza (2000) 24 Cal.4th 130, 180-181 [99 Cal.Rptr.2d 485, 6 P.3d 150].) Defendant next claims the instruction incorrectly required the jury to give at least some weight to the evidence of flight, creating a mandatory presumption.

To the contrary, the jury was told only that the evidence “may be considered by you in the light of all the other proved facts.” Defendant also contends the instruction permitted the jury to draw impermissible inferences of guilt. We have rejected such arguments. (See, e.g., People v. Mendoza, supra, 24 Cal.4th at pp. 179-181; People v. Smithey, supra, 20 Cal.4th at p. 983.) Defendant asserts that his flight in Arizona did not necessarily show guilt about crimes in California, since he committed other serious crimes in Arizona.

However, defendant left California shortly, in a stolen car, after the bookstore crimes. The jury could reasonably find that this departure, as well as the chase in Arizona, constituted flight from the California crimes. The fact that the chase may have occurred partly because of the Arizona crimes does not preclude the inference that defendant also fled to escape capture for his even more serious crimes in California. “Common sense . . . suggests that a guilty person does not lose the desire to avoid apprehension for offenses as grave as multiple murder[] after only a few” days. (People v.

Mason (1991) 52 Cal.3d 909, 941 [277 Cal.Rptr. 166, 802 P.2d 950] [flight four weeks after murder].) Defendant complains that the instruction allowed the jury to use the flight evidence to infer not only that he had killed the victims, but also that his state of mind was not affected by his use of alcohol or any other factor that would have lowered the degree of the homicides. “We have explained that the flight instruction, as the jury would understand it, does not address the defendant’s specific mental state at the time of the offenses, or his guilt of a particular crime, but advises of circumstances suggesting his consciousness that he has committed some wrongdoing.” (People v.

Zambrano (2007) 41 Cal.4th 1082, 1160 [63 Cal.Rptr.3d 297, 163 P.3d 4], italics omitted.) We have repeatedly rejected the claim that the flight instruction “permit[s] the jury to draw impermissible inferences about the defendant’s mental state, or [is] otherwise inappropriate where mental state, not identity, is the principal disputed issue. [Citations.] As we have said, even where the defendant concedes some aspect of a criminal charge, the prosecution is entitled to bolster its case, which requires proof of the defendant’s guilt beyond a reasonable doubt, by presenting evidence of the defendant’s consciousness of guilt.” (Ibid.) b.

Motive Instruction The jury was also given CALJIC 2.51: “Motive is not an element of the crime charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. Presence of motive may tend to establish guilt. Absence of motive may tend to establish innocence.

You will therefore give its presence or absence, as the case may be, the weight to which you find it to be entitled.” Defendant argues that this instruction improperly allowed the jury to find guilt based on motive alone, reduced the prosecutor’s burden of proof, and required defendant to show an absence of motive to establish his innocence, violating his rights to a fair jury trial, due process, and a reliable verdict in a capital case. We have rejected these challenges to the instruction. (People v. Kelly (2007) 42 Cal.4th 763, 792 [68 Cal.Rptr.3d 531, 171 P.3d 548]; People v.

Cleveland (2004) 32 Cal.4th 704, 750 [11 Cal.Rptr.3d 236, 86 P.3d 302].) c. Murder Instructions Defendant contends the trial court improperly failed to require the jury to unanimously determine whether its murder verdict was based on a theory of premeditation or felony murder. We have “ ‘repeatedly rejected this contention, holding that the jurors need not unanimously agree on a theory of first degree murder as either felony murder or murder with premeditation and deliberation. [Citations.]’ (People v.

Nakahara (2003) 30 Cal.4th 705, 712 [134 Cal.Rptr.2d 223, 68 P.3d 1190] (Nakahara).) Here, as in Nakahara, we ‘are not persuaded otherwise by Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435, 120 S.Ct. 2348].

There, the United States Supreme Court found a constitutional requirement that any fact that increases the maximum penalty for a crime, other than a prior conviction, must be formally charged, submitted to the fact finder, treated as a criminal element, and proved beyond a reasonable doubt. [Citation.] We see nothing in Apprendi that would require a unanimous jury verdict as to the particular theory justifying a finding of first degree murder. [Citation.]’ (Nakahara, supra, 30 Cal.4th at pp. 712-713.)” (People v.

Morgan (2007) 42 Cal.4th 593, 617 [67 Cal.Rptr.3d 753, 170 P.3d 129].) Nor, contrary to defendant’s contention, are felony murder and premeditated murder separate crimes. (Ibid.) B. Penalty Phase Issues 1. The Gaughan Report Defendant claims it was reversible error to allow the prosecutor to cross-examine defense witnesses about a psychiatric report, over his counsel’s objections. The six-page report was prepared by defense psychiatrist Thomas Gaughan in connection with defendant’s Arizona crimes, and was included in the Arizona probation file. Dr.

Gaughan recorded defendant’s descriptions of an increasing level of criminal behavior, beginning in his early teens and culminating with the California and Arizona crimes. As discussed below, the prosecutor originally intended to call Dr. Gaughan to relate the statements defendant made to him. However, the trial court delayed ruling on the permissible scope of Dr. Gaughan’s testimony. After a number of defense witnesses had testified, the court decided that certain portions of the doctor’s report, characterized by the prosecutor as “all the really good stuff,” would be inadmissible if he were called to testify.

The prosecutor ultimately decided not to call Dr. Gaughan, and his report was not admitted into evidence. Nevertheless, many witnesses were cross-examined with reference to the Gaughan report. Some of the questioning was proper, and the court made efforts to minimize undue prejudice and to inform the jury of the limited relevance of the report.

However, by delaying its ruling on specific parts of the report, and also by directing the prosecutor to cross-examine the witnesses about its contents only in general terms, the court permitted an approach that drew the jury’s attention to aspects of defendant’s personal history that were never testified to. This inevitably invited the jury to speculate about matters that were not in evidence, although under the circumstances of this case, we conclude the impropriety was not prejudicial.

Often, when rebutting evidence of good character, a prosecutor will ask witnesses if they have heard about particular incidents involving the defendant. Here, however, over defendant’s objections, the prosecutor used the report in a different manner. When witnesses testified favorably about defendant’s character, or when they testified about his emotional or behavioral problems, the prosecutor would ask them to read the report, and then inquire whether they were aware of the incidents described there.

When a defendant places his character at issue during the penalty phase, the prosecution is entitled to respond with character evidence of its own. “The theory for permitting such rebuttal evidence and argument is not that it proves a statutory aggravating factor, but that it undermines defendant’s claim that his good character weighs in favor of mercy.” (People v.

Rodriguez (1986) 42 Cal.3d 730, 791 [230 Cal.Rptr. 667, 726 P.2d 113] (Rodriguez).) Once the defendant’s “general character [is] in issue, the prosecutor [is] entitled to rebut with evidence or argument suggesting a more balanced picture of his personality.” (Ibid.) The prosecution need only have a good faith belief that the conduct or incidents about which it inquires actually took place. (People v. Barnett (1998) 17 Cal.4th 1044, 1170-1171 [74 Cal.Rptr.2d 121, 954 P.2d 384]; see also People v. Ramos (1997) 15 Cal.4th 1133, 1173 [64 Cal.Rptr.2d 892, 938 P.2d 950]; People v.

Clair (1992) 2 Cal.4th 629, 684-685 [7 Cal.Rptr.2d 564, 828 P.2d 705].) The scope of proper rebuttal is determined by the breadth and generality of the direct evidence. If the testimony is “not limited to any singular incident, personality trait, or aspect of [the defendant’s] background,” but “paint[s] an overall picture of an honest, intelligent, well-behaved, and sociable person incompatible with a violent or antisocial character,” rebuttal evidence of similarly broad scope is warranted. (People v.

Mitcham (1992) 1 Cal.4th 1027, 1072 [5 Cal.Rptr.2d 230, 824 P.2d 1277]; see also In re Ross (1995) 10 Cal.4th 184, 207-208 [40 Cal.Rptr.2d 544, 892 P.2d 1287]; People v. Clark (1993) 5 Cal.4th 950, 1027 [22 Cal.Rptr.2d 689, 857 P.2d 1099].) On the other hand, we have firmly rejected the notion that “any evidence introduced by defendant of his ‘good character’ will open the door to any and all ‘bad character’ evidence the prosecution can dredge up.

As in other cases, the scope of rebuttal must be specific, and evidence presented or argued as rebuttal must relate directly to a particular incident or character trait defendant offers in his own behalf.” (Rodriguez, supra, 42 Cal.3d at p. 792, fn. 24.) In particular, “[e]vidence that a defendant suffered abuse in childhood generally does not open the door to evidence of defendant’s prior crimes or other misconduct.” (In re Lucas (2004) 33 Cal.4th 682, 733 [16 Cal.Rptr.3d 331, 94 P.3d 477].) When a witness does “not testify generally to defendant’s good character or to his general reputation for lawful behaviors, but instead testified] only to a number of adverse circumstances that defendant experienced in his early childhood,” it is error to “permit[] the prosecution to go beyond these aspects of defendant’s background and to introduce evidence of a course of misconduct that defendant had engaged in throughout his teenage years that did not relate to the mitigating evidence presented on direct examination.” (People v.

Ramirez (1990) 50 Cal.3d 1158, 1193 [270 Cal.Rptr. 286, 791 P.2d 965]; see also In re Jackson (1992) 3 Cal.4th 578, 613-614 [11 Cal.Rptr.2d 531, 835 P.2d 371], disapproved on another point by In re Sassounian (1995) 9 Cal.4th 535, 545, fn. 6 [37 Cal.Rptr.2d 446, 887 P.2d 527].) Here, defendant contends the prosecutor improperly introduced vague suggestions about “bad things” the witnesses did not know about, instead of presenting them with specific instances described in the report that were relevant to incidents or opinions described by the witnesses.

Defendant also claims the court erred by permitting the prosecutor to refer broadly to the incidents in the report no matter how limited and specific the testimony of the defense witnesses was, in violation of the Rodriguez rule prohibiting the introduction of “any and all ‘bad character’ evidence” on rebuttal. (Rodriguez, supra, 42 Cal.3d at p. 792, fn. 24.) These arguments have substantial merit. A number of defense witnesses were improperly cross-examined as to their knowledge of irrelevant incidents, and the prosecutor’s references to the contents of the report were sometimes unduly suggestive.

Nevertheless, after reviewing the prosecutor’s use of the Gaughan report, and the court’s related rulings and admonishments to the jury, we conclude the impropriety was not so egregious as to prejudice the outcome of the penalty phase. a. The Testimony and Related Proceedings i. Marietta Loker The prosecutor first asked to use the Gaughan report after the testimony of defendant’s mother, Marietta Loker. Defense counsel asked about a time when defendant “was shooting at bottles.” Marietta explained that this happened in the backyard during her divorce from defendant’s father.

Defendant told her, “If I don’t do this I’m liable to shoot my dad.” Marietta also said that defendant had “totally changed” when he came back from a visit to Tulsa a few months before the California murders. In Tulsa, defendant could not “meet the Daulton image” of being “rough and tough” and ready to “fight in a minute.” A couple of months before the murders, he was drinking six to 12 cans of beer a night. He “totally changed when he drank,” becoming irritable and depressed.

At a bench conference, the prosecutor sought permission to counter the testimony that defendant became a “totally changed person” shortly before the crimes with defendant’s statements in the Gaughan report, which described a pattern of criminal behavior and ideation that began much earlier. It was agreed that the issue would be addressed later.

On redirect, defense counsel asked Marietta if “as a teenager [defendant] would ... get involved in bad things or violence.” She responded, “That’s the reason why I was so shocked when this happened, because [defendant] was kind of—he was tender; his sister could kind of beat him up.” Defense counsel then asked a series of questions establishing that “things went downhill” after the Lokers’ divorce when defendant was 17. Defendant became violent and talked about killing. However, even before then he had chronic emotional problems. At a hearing out of the jury’s presence, the prosecutor renewed his argument.

He noted Marietta’s testimony that defendant was “tender,” and asked to use the Gaughan report to show that defendant’s criminal behavior began when he was around 13 and escalated thereafter. The prosecutor asked the court how much detail he could go into, and whether he would be allowed to call Dr. Gaughan as a witness. Defense counsel argued that Marietta’s testimony was consistent with the Gaughan report, because the serious incidents reflected in the report occurred after defendant was 17, and the most serious were within six months of the charged offenses.

The court decided that Marietta’s testimony about defendant’s tenderness and minor incidents of shooting at bottles had created an impression the prosecutor was entitled to counter with some of the material in the report. The court ruled that the prosecutor could not mention an incident in which defendant described shooting at someone in a vehicle. However, defendant’s preoccupation with violence and pornography, his desire to be a criminal, and his stalking activity, were permissible areas of examination.

The court told the prosecutor to ask about these matters “very generally,” “without going into a lot of specific details.” Defense counsel said, “I’ll stipulate to that,” and the prosecutor agreed. The court suggested that the better way to discuss specific incidents would be to put Dr. Gaughan himself on the stand.

On cross-examination, Marietta reaffirmed that she had been shocked about defendant’s crimes, saying, “I never dreamed my son could ever be capable of doing what he did.” The prosecutor asked her to read the Gaughan report, “without saying anything out loud to the jury.” She was given time to read the report while another witness testified.

Before her cross-examination resumed, another hearing was held out of the presence of the jury, at which it was established that Marietta knew only about a shoplifting incident and the Peeping Tom incident, and that the prosecutor would not question her on things she did not know about.

He explained that he did not want to ask Marietta about things that would be painful to her, and the court agreed, noting that the incidents might come in later and “you could tie that together in argument, that there were these other things going on that she didn’t know about.” Defense counsel made a continuing objection “to bringing in Dr. Gaughan’s report in bits, pieces, or any other way.” The court noted this broad objection, adding that counsel could raise further objections “in any particular instance or context.” The court also opened up a further area for the prosecutor to explore.

Because there was testimony that defendant’s father had a reputation as a thief, the court said the prosecutor could ask Marietta if she was aware of the incidents of theft defendant had related to Dr. Gaughan. In front of the jury, Marietta confirmed that she was aware of a window-peeking incident and a petty theft six months before the crimes in this case, but not any of the other material in the Gaughan report. She said, “I did not know that, the seriousness of all of that at all.” The cross-examination of Marietta was proper.

Because defense counsel stipulated to presenting her with no specific instances of misconduct, defendant cannot now complain about that aspect of the cross-examination. Moreover, Marietta’s portrayal of defendant as a tender child who changed dramatically shortly before committing his crimes permitted the prosecutor to bring up conflicting aspects of his character.

The prosecutor did not characterize the contents of the report in his questioning; Marietta spontaneously mentioned “the seriousness of all of that.” Defendant complains that her testimony about his father’s reputation for stealing should not have opened the door to questions about his own shoplifting. However, defense counsel established that Roger Loker’s skill as a thief became a family story that was passed along to defendant. In any event, the shoplifting incident was not emphasized, but merely presented as one part of defendant’s history that Marietta knew about. ii.

Hannah Lunsford Defendant’s sister Hannah testified at length about defendant’s troubled childhood and adolescence. She described his problems in the trailer park, in church, in school, with the family, with friends, with girls, and with alcohol. On cross-examination, the prosecutor asked Hannah if she knew “all of the things that he was doing since early adolescence until the crimes that he committed in this case.” Hannah said she did not. When asked specifically about other criminal activity, Hannah said she was “aware of other crimes.” The prosecutor then asked if she had seen the Gaughan report.

Defense counsel requested a bench conference, at which he strongly objected to the prosecutor’s use of the Gaughan report as “irrelevant, prejudicial, [and] beyond the scope.” He complained that the questioning was “very suggestive,” and not responsive to Hannah’s testimony that defendant was an increasingly disturbed young man. The prosecutor responded that he did not intend to identify specific incidents in the report, but only to question Hannah generally about what she knew, as he had done with Marietta.

The court ruled that once defense counsel presented a particular portrait of defendant’s personality or background, the prosecutor was entitled to bring out other aspects of his character. The court told the prosecutor he could ask about specific instances, but advised him to avoid general statements about “criminal activity.” The court asked defense counsel if he would like an instruction telling the jury to disregard that reference by the prosecutor. Counsel accepted this offer.

The court told the jury, “there was a question asked where the witness made a statement something to the effect of I was aware of other, quote, criminal activity, end quote. You’re directed to disregard that. If there is any specific instances of conduct, the attorneys will [be] talking about that—those specific instances. But when someone uses a broad general term such as criminal conduct or crimes or something of that nature, different people may mean different things. And it might well be very misleading. On the other hand, it may be very accurate.

But rather than just talk about a general label, if there are any specific instances of specific conduct that are relevant to the testimony that’s been given, the attorneys will discuss that specific conduct, and it will be up to you then to evaluate the conduct. So you are instructed to disregard the question and answer that related to other criminal activity. Not consider it for any purpose.” The prosecutor gave Hannah a copy of the Gaughan report to read during a break, asking her specifically to examine those pages where the doctor described the things defendant said he had done.

The prosecutor said he would be asking her whether she was personally aware of any of those incidents. After the recess, before the jury returned, the prosecutor advised the court that Hannah knew about only a few things in the report, including an incident in which defendant felt rejected by a woman, the Peeping Tom incident, and his interest in pornography and violent movies. Defense counsel again objected, arguing that the prosecutor’s line of questioning was unduly prejudicial and not probative under Evidence Code

section 352, and an infringement on defendant’s constitutional rights to an effective penalty phase defense. The prosecutor explained that he intended to call Dr. Gaughan to bring in the specifics of those parts of the report the court deemed admissible, but he was not going to be specific with Hannah, asking her only “which areas are you aware of.” The court approved of this approach, noting it would be improper to question the witness about incidents she did not know about, although those might be brought in directly through Dr. Gaughan.

Defense counsel argued that the court’s original ruling was that if he elicited testimony that defendant was “just a fine angelic kid until the day before this incident, that of course in rebuttal to that, . . . other instances could come out.” However, now the court was permitting the report to be used with every witness, whatever the nature of their testimony.

The court responded that if the defense put on witnesses to testify to “various aspects of the defendant’s character, . . . various things in his background,” the prosecution was entitled to bring out “other aspects that have not been discussed by the witness,” whether or not the witness was aware of them.

When Hannah returned, the prosecutor described the report as including “three types of areas.” The court overruled defense counsel’s objection that the prosecutor was “in effect testifying.” The prosecutor identified the three areas as “certain incidents” in defendant’s life from the time he was an adolescent, “certain fantasies he had,” and “the kind of person he wanted to be.” Hannah agreed with this “as far as I can tell.” The court sustained an objection to a question whether Hannah was aware of the kind of person defendant wanted to be, telling the prosecutor not to go into specifics of which Hannah was unaware.

The court sustained another objection to a general question whether Hannah was aware of defendant’s fantasies. Asked about actual incidents she knew of, Hannah said she had heard about the Peeping Tom episode. The court sustained a hearsay objection, instructing Hannah to testify only about what she saw herself or heard from defendant. The only such matters were defendant’s rejection by a woman, his interest in “women’s magazines,” and his enjoyment of violent movies. The court erroneously overruled defense counsel’s objections to the use of the Gaughan report during Hannah’s cross-examination.

Unlike Marietta, Hannah did not present a generally favorable picture of defendant’s character. Her testimony about his troubled childhood did not open the door to evidence of defendant’s criminal misconduct, fantasies, or aspirations. (People v. Ramirez, supra, 50 Cal.3d at p. 1193.) The fact that Hannah was unaware of some of the incidents in the Gaughan report did not contradict her testimony about the problems defendant had as a youth. Moreover, the prosecutor improperly characterized the contents of the report, rather than confining his questions to particular matters pertaining to Hannah’s direct testimony.

Although the court properly admonished the jury not to consider the prosecutor’s description of the “criminal activity” in the report, the prosecutor’s use of the report with this witness was overbroad and improperly suggestive. iii. Robert Anthony Daulton Defendant’s uncle Robert Anthony Daulton refused to answer questions about the Gaughan report. During a recess, the prosecutor proposed asking Daulton if he knew about the incidents in the report. The court commented that Daulton had had only limited contact with defendant, and had said he was not aware of anything except the things he testified about.

Daulton stated he would rather not read the report or know what was in it. The court told the prosecutor he could request, but not demand, that Daulton read the report. During cross-examination, the prosecutor brought up the report, and Daulton said, “I don’t care to see it” because it “brings more shame to the kid.” The prosecutor did not pursue the matter. The prosecutor’s reference to the report in this instance was irrelevant, but brief, and the potential for undue prejudice was minimal. iv.

Shari Johnson Johnson, defendant’s sister-in-law, testified that she was aware of defendant’s “deep-seated problems.” She mentioned his attraction to pornography, his mood swings, and his insecurities about finding a girlfriend. She had told Marietta that he needed counseling, but Marietta rejected the idea. Defense counsel objected when the prosecutor said he wanted Johnson to look at the Gaughan report. While the jury was excused for a break, counsel argued again that the report was irrelevant and improper for use in rebuttal.

He noted that Johnson’s testimony about defendant’s problems created “no distortion or inaccuracy.” The court, however, ruled that the direct testimony regarding “various aspects of [defendant’s] personality and character” allowed the prosecution to “inquire as to the extent of the witness’s knowledge in those areas.” The court stated that, as before, the prosecutor could ask if the witness was aware of the incidents described in the report, and she would “relate those” she was personally aware of, but not others, nor could the prosecutor explore those other areas.

At defense counsel’s request, the court told Johnson she did not have to read the report. Johnson did read the report, and said she was not personally aware of any of the incidents. She had learned about some of them from family members. When the prosecutor asked about what she had learned, the court sustained a hearsay objection. The prosecutor asked if he could have Johnson indicate on the report which incidents she had heard about. The court said that could be done after she completed her testimony. Again, the court erred by overruling defense counsel’s objection.

Counsel correctly noted that the report did not serve to rebut Johnson’s testimony about defendant’s problems. The court failed to perceive the distinction pointed out in Rodriguez', that any character evidence offered by the defense does not permit the prosecution to introduce any character evidence in rebuttal. “[T]he scope of rebuttal must be specific, and evidence presented or argued as rebuttal must relate directly to a particular incident or character trait defendant offers in his own behalf.” (Rodriguez, supra, 42 Cal.3d at p. 792, fn. 24.) v.

Tom Dillard Dillard was pastor of the church in Indiana that defendant and his family attended. He testified about the Lokers’ troubled family life, but thought defendant was “basically like a normal hyperactive child.” On cross-examination, the prosecutor referred to this statement and asked the following questions: “Q. I assume that you don’t know anything about what he may have been doing behind your back, correct? “A. No, sir, very, very little. “Q. And I take it the reverend or the pastor is the last guy you come to— “A. Usually the last one to hear. “Q. And I attempted to show Dr.

Gaughan’s report to you over the recess, correct? “A. Yes. “Q. And [defense counsel] wouldn’t let me do that, correct? “A. Right. “Q. And that’s fine because you wouldn’t know the kinds of things [defendant] was doing through his teenage years if they were bad unless he told you or they were brought to your attention, right? “A. Yes, sir. “Q. Okay. So—so even if you read a report which included a lot of bad things, that’d be news to you, wouldn’t it? “A. It would be news to me, yes, sir. “Q. So your opinions about [defendant] are based on some limited information, are they not? “A.

Yes, sir.” On redirect, defense counsel questioned Dillard further on defendant’s problems with church and with his family. The prosecutor then asked: “Would you like to know what was going on in [defendant’s] mind all the time he was growing up as a teenager and the kinds of things he was doing behind people’s backs?” Dillard answered: “At this point in my life, no.” The prosecutor said he understood, and asked no further questions.

While Dillard’s testimony that defendant was a “normal hyperactive child” could properly have been rebutted with material from the Gaughan report contemporaneous with his observations of defendant, the prosecutor’s references to the “bad things” in the report were improper. Defense counsel, however, did not object or ask for an admonishment to the jury. vi. Elisabeth Jones Jones was defendant’s cousin and called herself a “very good friend” of his. She testified about child abuse in the trailer park, and its effects on her.

She also testified about defendant’s personality, his feelings of worthlessness, and his problems with his parents.

The prosecutor asked Jones if she knew “what kind of things he may have been doing without the family’s knowledge or the kind of person that he wanted to be without the family’s knowledge.” Jones said she thought defendant “wanted to be a good person.” The prosecutor asked if she would “like to take a look at a report in which he made statements about what he was doing from early adolescence on, and the kind of person he wanted to be, and see whether or not he told you any of those things?” Defense counsel objected that the question was “inappropriate.” The court sustained the objection.

Jones agreed with the prosecutor that she did not know “what kind of things he may have been doing behind [her] back.” The court sustained another objection when the prosecutor asked “if he were involved in some bad things, whether they were criminal or anything else, you wouldn’t have any knowledge of that, would you?” In this instance, the court properly sustained counsel’s objections. vii. Hugh Scott Defendant’s cousin Hugh Scott testified about growing up in the trailer park with defendant. He discussed the problems of the Daulton family and the abusive treatment of children in the park.

He also spoke about defendant’s insecurities and desire to have a family. Scott declined to read the report. On recross-examination, the prosecutor asked him whether defense counsel had shown him the Gaughan report. Scott said no. The court sustained an objection when the prosecutor asked, “why do you suppose he hasn’t shown you the report from Doctor Gaughan?” The prosecutor then asked if Scott would like to see it.

Scott answered, “I’d rather not,” explaining that he had “talked to a psychologist.” The prosecutor said, “I’m not asking for evaluations, I’m asking would you like to see the things [defendant] told the psychologist about what he’s been doing since he’s been a teenager.” Scott said, “I think I’ve heard just about as much as I want to hear.” No error appears with regard to this witness. viii. The Court’s Ruling Limiting Use of the Report After Scott testified, the court took up the admissibility of the Gaughan report in detail.

Defendant does not challenge the court’s rulings on this occasion, but they are a central part of the relevant proceedings. The court noted that the defense had presented aspects of defendant’s personality, character, and state of mind that opened the door to other such aspects “that might be inconsistent with or in addition to” the witnesses’ testimony. The court said it would admonish the jury to consider the report only for assessing these character and mental state issues, and not for the truth of the matters stated or as evidence in aggravation.

Defense counsel renewed his objection to the use of the report in rebuttal, arguing that he had not put on psychiatric evidence, but merely evidence of defendant’s troubled youth. Counsel contended the Gaughan report was improper rebuttal and unduly prejudicial. He said the report was intended to be confidential, had erroneously become part of the court file in Arizona, and provided a distorted picture of defendant based only on two interviews. He insisted that rebutting the testimony of family members with a psychiatric report was “simply not proper,” and violated defendant’s due process rights.

The prosecutor responded that the Gaughan report was relevant to show that defendant’s problems stemmed not just from his family life and experiences in the trailer park and church, but also from that fact that “he was leading this secret life.” The prosecutor intended to use only the statements defendant made to Dr. Gaughan, not the psychiatric aspects of the report.

The court reiterated its finding that in light of the defense witnesses’ testimony, the report was admissible both to show the extent of those witnesses’ knowledge of defendant and to “give a more complete picture by showing at least additional areas of his personality and character and intent that were not touched upon” in direct testimony. Dr. Gaughan’s conclusions about defendant would not be admissible, unless the defense introduced its own psychiatric evidence. The court then considered the various incidents defendant described to Dr. Gaughan.

It ruled that the following incidents were admissible for purposes of rebuttal; defendant’s “involve[ment] in window peeking”; his interest in pornography; his success with minor shoplifting and resulting feelings of control and self-esteem; his fantasies of a lifestyle as a successful outlaw; his attraction to movies with violent themes including sexual coercion; his fantasies about violent relationships with women and rapes; his plans for “more expensive burglaries” and initial steps he took toward them, which gave him a sense of power and a thrill; his statement that success at thievery became one of the few things he was able to feel capable and proud about; his increased drinking and sexual compulsions; his stealing of trivial items to feel a sense of revenge and control over merchants he felt had wronged him; and an incident in which he had planned to rape a woman who refused to have a relationship with him.

The court deemed the following statements in the report inadmissible as irrelevant or unduly prejudicial: defendant’s feeling over the year before his arrest that he was “a master thief educated with information that he obtained through the movies”; a statement that he began to do things to see if he could get away with them; the increasing frequency of his thefts; his growing belief that he could lead the lifestyle of a master outlaw modeled after figures in the movies; an incident involving two prostitutes that did not develop as he had envisioned, after which he went looking for them with a loaded shotgun; an incident in which he shot at someone in a vehicle; detailed discussions of his mental state with regard to the charged offenses; and a statement that when he left Arizona he felt he had “crossed the line” and started hunting for a rape victim when he arrived in Los Angeles.

The court also denied the prosecutor’s request to confirm with Dr. Gaughan that the movie that influenced defendant the most was Henry: Portrait of a Serial Killer (Maljack Productions 1986). ix. Ted Schwartz Ted Schwartz, defendant’s art teacher in grades six through eight, gave generally positive testimony about him as a student.

On cross-examination, the court sustained an objection when the prosecutor asked, “do you know anything at all about the kind of life he was leading behind your back?” Without specifically mentioning the Gaughan report, the prosecutor established that Schwartz would not know about “whatever he may have been doing outside of school, whatever bad things he may have been doing.” Schwartz mentioned that defendant had told him about driving without a license. The prosecutor said, “I’m talking about other kinds of things which are far more serious.

Did he ever tell you anything about things he was doing outside of school?” Schwartz answered, “no, he did not.” Again, although the court correctly sustained a defense objection, the prosecutor’s reference to the “bad things” defendant was “doing outside of school,” which the jury would understand as a reference to the Gaughan report, was unduly suggestive and an improper cross-examination technique. x. Pauline Borders Borders, who taught defendant in seventh grade, testified about defendant’s academic difficulties and the school’s failure to meet his needs.

The prosecutor asked if she would “like to see a psychiatric report by Dr. Gaughan who talks about all the things [defendant] said he was doing while he was in school?” Borders said she would, and read the report during a break. When she returned, the prosecutor asked if she was “personally aware of any of the things that [defendant] reported doing from his early adolescence?” Borders said she was not. In the absence of an objection, the court had no occasion to rule on this use of the Gaughan report.

However, the fact that Borders was unaware of anything in the report was clearly irrelevant to her testimony regarding his problems in school. xi. Gershom Salisbury Salisbury was defendant’s second cousin, and a good friend. He had grown up with defendant in the trailer park and later in Indiana. Salisbury testified about the difficulties defendant had with the Indiana church community. On a number of occasions defendant had discussed suicide, feeling worthless and disliked. Salisbury said defendant was “the last one . . . that I would have ever imagined I’d be sitting right here now” testifying for.

Defendant was “just such a happy-go-lucky guy,” although he was “kind of hyper.” Salisbury said that looking back, he could see signs that he did not notice at the time, and now realized that defendant kept a lot of things bottled up inside.

But “if you knew [defendant] very well, you just never would have dreamed there was ever anything like this.” His “whole life was about . . . trying to please everybody and be accepted.” The prosecutor asked Salisbury, “if I were to show you a report from a psychiatrist to whom Keith said a bunch of things which may be inconsistent with your image of him, that would surprise you?” Salisbury said, “at this point, no.” He explained that everyone has things they do not reveal, and that he knew defendant as well as anyone and that defendant “talked to me about everything.” Defendant had told him about stealing tires from a car dealer not long before the charged offenses, and they had a long conversation about that.

However, that was the first time Salisbury learned about criminal behavior by defendant. The prosecutor asked the court if he could show Salisbury the Gaughan report. Defense counsel requested that Salisbury be allowed to decline. The court ruled that he could be asked to read the report during the testimony of the next witness “to see if he’s aware of any of the matters in there.” Salisbury said his sister, who testified earlier, had told him some of what was in the report. He did not want to read the report unless defendant wanted him to.

The prosecutor said he was certain defendant did not want it to be read, “but I want you to have the opportunity, since you’ve told us that his whole purpose in life was to please everyone and that he was just a happy-go-lucky good guy, I’d like you to see this other side of him and tell us whether or not you were aware of that other side of him.” Salisbury responded that he was not aware of it. The prosecutor said he would still like Salisbury to read the report. At this point, the court gave the following advisement to the jury: “Ladies and gentlemen, let me explain.

There’s been a couple of references to this report. And I don’t know if you’re going to hear any information about what was—what’s actually in the report or not. If you don’t, then obviously you cannot speculate as to the contents of the report or whether anything in the report is true or not true. “Again, you’re reminded that you must base your decision solely on the evidence that you do hear.

And anything that—there has been a few things that have been mentioned during . . . cross-examination of some of the defense witnesses as to some specific instances of the defendant’s background, whether it’s an incident with an ex-girlfriend or taking tires from someplace or anything of that nature, all of that kind of evidence is being admitted for a very limited purpose. It is not to show that the defendant has committed other bad acts and, therefore, he’s a bad person.

Or the death penalty is more appropriate because if—he stole some tires or he got mad at someone or anything of that nature. “The only purpose of all of that testimony regarding any prior acts of the defendant is that many of the witnesses have testified to various aspects of the defendant’s personality or his character or his state of mind at various times.

And when a witness does that, that, so to speak, opens up the door for the other side to then say, well, there are other aspects of his personality or his character or his state of mind that we would also like you to be aware of. “And the only purpose of it is so you can get as complete a picture as possible as to the personality and the character and the state of mind of the individual.

And all of that evidence is limited to that purpose, and you cannot consider it for any other purpose. “For example, there was mention at the beginning of this phase of the trial and at the beginning of the trial, and you’ll be instructed again at the end of the trial that one of the things you’re going to be asked to do in this phase of the trial when you go out to deliberate is to weigh what we call aggravating circumstances against mitigating circumstances. And we’ll be defining what those are for you.

And we’ll be giving you a list of ... all the things that constitute aggravating factors, and we’ll give you a list of some of the things that constitute mitigating factors. “This kind of evidence about other things that the defendant may have done is not and cannot be considered by you as aggravating evidence. . . . [][]... [N]one of that is a circumstance in aggravation and cannot be considered in that regard. [It] can only be considered as giving some light or balance to issues of personality, issues of character and issues of state of mind. “And of course, if someone testifies to knowing a person and you say, well, there were other things I didn’t know about, you can also consider that as far as the extent of their knowledge in giving you evidence about the person’s character or personality or state of mind.

All of that evidence is limited to that area and cannot be considered for any other purpose.” Salisbury asked if he had to read the report; the court said that he did. Defense counsel objected to having him read the portions the court had ruled inadmissible. The court overruled the objection. Subsequently, the parties stipulated that if called to testify, Salisbury would say that his opinions of defendant were based on his knowledge before the California crimes, and that he had not been aware of anything in the Gaughan report.

Salisbury’s broad statements about defendant’s good character could properly have been rebutted with similarly broad aspects of his bad character, based on specific incidents drawn from the Gaughan report. However, simply establishing that Salisbury did not know about the unspecified incidents that showed “this other side” of defendant’s character did not provide the jury with any useful means of evaluating his testimony.

Although the court’s lengthy admonition was a valuable corrective measure, the problems it addressed could have been avoided by barring the prosecutor from making general statements about the nature and contents of the report, and requiring his cross-examination to focus on specific incidents relevant to Salisbury’s testimony. xii. Leland Loker Leland Loker was another second cousin who had known defendant all his life.

He testified that defendant lacked self-confidence and was not accepted by some people in his family and church, but was “pretty much . . . happy-go-lucky.” He dealt with rejection by pretending it never happened. Leland said that on one occasion, defendant was extremely upset when he ran over a cat on the way to work.

He described defendant as neat and orderly, and said “he’s always been a perfect gentleman.” On cross-examination, the prosecutor said he did not intend to cause Leland or any other family member pain, “but I have to ask you to take a look at these things to see whether or not it’s a different Keith Loker than you know. Whether you’re aware of that side of him.” Defense counsel objected that the prosecutor was improperly characterizing the report.

The court sustained the objection, and told the jury: “Again, ladies and gentlemen, you’re reminded that the statements of counsel, including their questions, are not evidence . . . the only thing that you can consider as evidence is the actual testimony of witnesses. [j[] And as I indicated to you ... if there are matters in this report that [the prosecutor] has referred to that are relevant, then I would assume that there will be some testimony from a witness about those areas.

If there is not any testimony from a witness as to the statements [defendant] is alleged to have made in this report, then again you’re instructed not to speculate as to what it was that might have been in there or why it wasn’t presented to you. [][] And not to consider it for any purpose except if witnesses indicate that they are aware of certain things or not aware of certain things.

Then, of course, you can consider the witness’ testimony in that regard as demonstrating either the extent or lack of extent of their knowledge of certain items.” The prosecutor requested a bench conference, and objected that the court had excluded portions of the report it deemed overly prejudicial, so he would be unable to present all the relevant matters to the jury.

The court said, “[t]he problem is when the question directly states that here’s a report that shows a very different side of the defendant, read it and tell me if you were aware of this side of the defendant, and then there’s no evidence put on as to what was in the report, it clearly communicates to the jury that there’s all this other evidence that shows a very different side of the defendant but we’re not going to tell you what it is.” The court advised the prosecutor to simply ask the witness to read the report and see whether he was familiar with the information in it, but not “to embellish and state as a fact that it shows a completely different side of the defendant.” The prosecutor also objected that the defense witnesses were testifying broadly about defendant’s good character, and asked the court to reconsider its ruling limiting the use of the report.

Defense counsel responded that the witnesses were volunteering those statements, and his attempts to restrain them had been unsuccessful. The court said it would be willing to reconsider its ruling, but not as to this witness. It denied the prosecutor’s request to modify the admonition it had just given the jury. The prosecutor asked Leland to look at the Gaughan report and see if he was aware of any of the things defendant said in it.

Leland said he would rather not, adding, “I’d just as soon remember [defendant] the way he was to me.” The prosecutor said he would “respect that.” Leland agreed that his opinions about defendant were based only on his personal observations. The court’s comments on this occasion demonstrate its awareness of the problems created by the prosecutor’s repeated references to the Gaughan report. The court properly sustained defense counsel’s objection and admonished the jury. Again, however, the impropriety of the prosecutor’s general approach is clear.

While Leland, like Salisbury, testified so generally about defendant’s good character that a broad scope of rebuttal was permissible, vague statements from the prosecutor about “another side” of defendant were not helpful to the jury. Similarly, the fact that Leland or any other witness was unaware of unspecified incidents in the report was simply irrelevant to the jury’s deliberations. xiii. The Court’s Ruling on Dr. Gaughan’s Testimony After the defense witnesses completed their testimony, the prosecutor asked the court to reconsider its ruling on the Gaughan report. He had scheduled Dr.

Gaughan to testify, but was concerned that the limitations the court had placed on the use of the report had so “watered down” the evidence that it might be preferable to not present it to the jury at all. He argued that the defense witnesses, particularly Gershom Salisbury, had testified so broadly regarding defendant’s good character that all the matters in the Gaughan report should be admitted. Defense counsel argued that Salisbury’s statement of his personal feelings did not justify bringing in the matters in the Gaughan report, of which Salisbury was unaware.

The court said it was not inclined to alter its ruling based on Salisbury’s testimony. However, it noted that Leland Loker’s testimony that defendant was upset over killing a cat, and another witness’s testimony that he was upset when someone shot a dog, had placed in issue defendant’s feelings on “issues of violence and taking human life.” Nevertheless, the court was concerned the jury would be unable to confine Dr. Gaughan’s testimony to considerations of character and mental state, without also improperly considering it as aggravating evidence of violent acts.

The court noted that Tim Daulton, another defense witness, had described defendant’s statements about the charged offenses. It decided the prosecutor could respond by questioning Dr. Gaughan about defendant’s statements discussing his mental state during the crimes. The court also ruled that defendant’s reference to going to Los Angeles and hunting for a rape victim would be admissible. Otherwise, it adhered to its previous ruling. The next day, the prosecutor informed the court that “all the really good stuff which would really balance the picture is not permitted.

And therefore in balance, as a tactical decision, I’ve decided not to call Dr. Gaughan.” Defendant, while he complains that the omission of the Gaughan report from evidence left the jury to speculate about its contents, does not raise any claim of error regarding the court’s rulings limiting the scope of Dr. Gaughan’s testimony. b. Prejudice As discussed above, the court erred in several ways in its handling of defense counsel’s objections to the prosecutor’s use of the Gaughan report.

With certain witnesses whose testimony was limited to defendant’s problems, and did not go to his good character, the court permitted the prosecutor to refer to “a course of misconduct that defendant had engaged in throughout his teenage years that did not relate to the mitigating evidence presented on direct examination,” a practice we disapproved in People v.

Ramirez, supra, 50 Cal.3d at page 1193. (See also In re Lucas, supra, 33 Cal.4th at p. 733.) The court also allowed the prosecutor to refrain from asking about specific incidents in the Gaughan report that would be relevant to the witnesses’ direct testimony, instead framing his questions in general terms that inevitably led to improper characterizations of evidence that never came before the jury, and created an unduly suggestive picture of the report that gave the jury no useful means of gauging the witnesses’ credibility.

This approach violated the fundamental rule that “the scope of rebuttal must be specific, and evidence presented or argued as rebuttal must relate directly to a particular incident or character trait defendant offers in his own behalf.” (Rodriguez, supra, 42 Cal.3d at p. 792, fn. 24.) Further, the prosecutor was permitted to repeatedly refer to a document that was not in evidence. No witness ever identified the report or laid a foundation for its admission. While the prosecutor could ask about particular incidents based on his good faith belief that the Gaughan report provided proof (People v.

Barnett, supra, 17 Cal.4th at pp. 1170-1171), his questions purporting to identify the document and characterizing its contents were improper. On the other hand, the court sustained a number of objections by defense counsel, and properly admonished the jury repeatedly and at length about the limited role the Gaughan report could play in its deliberations. At the end of the penalty phase, the trial court gave a similar limiting instruction. As is clear from our discussion of defendant’s new trial claims (see pt.

H.B.8.C., post), the jury heeded these admonitions and refrained from speculating about the Gaughan report during its deliberations. The prosecutor did not exacerbate the impropriety of his cross-examination during closing argument; he made no mention of the report. Two further considerations buttress our conclusion that the outcome of .the penalty phase was not altered by the prosecutor’s improper use of the report.

Defendant’s penalty jriiase defense was founded on an attempt to explain how his upbringing in the authoritarian, abusive environment of the religious community to which his family belonged, and the violent, dysfunctional atmosphere of his family itself, had caused a level of psychological trauma that explained his criminal behavior. His emotional and social problems in the community, the family, and school were explored at length by defense counsel. The prosecutor’s insinuations about the “bad things” in the Gaughan report did not tend to undercut the thrust of this evidence.

Instead, they were consistent with the portrait of defendant as an abused, confused, emotionally disturbed youth. Additionally, the jury had before it Undisputed evidence of defendant’s crime spree in two states, during which he killed two victims by shooting them at close range, wounded three others, kidnapped and raped a store clerk, and committed a string of robberies.

Given the strength of this evidence, the nature of the penalty defense, and the court’s repeated admonitions to the jury about its consideration of the Gaughan report, there is no reasonable possibility that the improper cross-examination affected the verdict. (People v. Jones (2003) 29 Cal.4th 1229, 1264, fn. 11 [131 Cal.Rptr.2d 468, 64 P.3d 762].) 2. Limitation of Mitigating Evidence Defendant contends the trial court prevented him from presenting mitigating evidence regarding the consequences of his upbringing and family life.

The Eighth Amendment to the United States Constitution requires that a capital jury be permitted to consider “ ‘as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.’ (Lockett v.

Ohio (1978) 438 U.S. 586, 604 [57 L.Ed.2d 973, 98 S.Ct. 2954], fn. & italics omitted.) Nonetheless, the trial court still ‘ “determines relevancy in the first instance and retains discretion to exclude evidence whose probative value is substantially outweighed by the probability that its admission will create substantial danger of confusing the issues or misleading the jury.” ’ ” (People v.

Williams (2006) 40 Cal.4th 287, 320 [52 Cal.Rptr.3d 268, 148 P.3d 47].) Defendant claims the court erred in excluding testimony by a number of witnesses that would have shown his problems were directly related to his upbringing in a religious cult. a. Deborah Chiba Deborah Chiba, defendant’s aunt, was an emergency room nurse. She was allowed to testify extensively about her own and others’ experiences growing up in the trailer park. When Chiba was six, she was called to the front of a prayer meeting, and asked to sit in Mercer’s lap to tell him her sins.

After she reported minor infractions, Mercer asked Chiba if she had ever improperly touched her private parts or those of her brothers. In particular, he inquired whether she had ever put her mouth on her brothers’ genitalia or they on hers. She repeatedly denied this had happened. Thereafter, Chiba was singled out for mistreatment, removed from her family, and placed in a different home. One day she was told she needed to be examined for worms. A nurse thoroughly examined her while Mercer watched. Her parents were not present.

A few days later Chiba was brought to the dining hall, where Mercer announced to everyone that the nurse’s examination had indicated Chiba was a “dirty little girl who liked to play with” herself. He called Chiba a whore and a lesbian. In second grade, Chiba suddenly and falsely accused the school janitor of pulling her panties down when she was on the playground. She maintained that story, and it solidified in everyone’s mind the idea that she really was a “nasty little girl.” She made the accusation because she felt violated by the nurse’s examination, and could not accuse the people she looked up to.

Chiba was sometimes whipped for minor infractions. Once her brother Johnny was beaten until he bled. In 1971, the year defendant was bom, Chiba was about 10 years old. Mercer ordered that her hair be cut off to punish her because he had had a vision from God that she was being sexually inappropriate with young children. Chiba was beaten and forced to wear masculine clothes that covered much of her body, hiding her braises. Her fingertips were burned so she would know what hell felt like. In 1973, Mercer moved Chiba to defendant’s family. She stayed there until the park dissolved in 1975.

Chiba also testified about the animosity between the Daultons and Lokers, and the cult’s emphasis on early marriage, derogation of education, and disdain for persons outside the church. Defendant contends the trial court erroneously sustained two objections. First, defense counsel asked Chiba whether as she was growing up she noticed the effect of their religion, as her father taught it, on her sister Marietta. The trial court sustained the prosecutor’s objection on Evidence Code

section 352 and relevance grounds, and because it called for speculation. Chiba also testified that years later she had cared for Mercer as a student nurse when he was dying. Defense counsel asked, “Had he been, to your knowledge, abusing drugs?” The trial court sustained a relevance objection. Both rulings were proper. They did not prevent defendant from presenting evidence regarding life in the park and its effect on extended family members. To the contrary, Chiba’s expansive testimony developed this aspect of defendant’s case in great detail. b.

Danny Johnson Danny Johnson, defendant’s half brother, related that he was physically abused by their mother while living in the park. He left the park before defendant was bom. Danny did not really know defendant until defendant was about 16 or 17 years old, when they began working together.

Danny had “a real problem with the park ever since [he] left,” and had spent “about twenty-six years trying to forget as much as [he] could.” He speculated that some family members opposed defense efforts to describe life in the park because it brought up events they had also been trying to forget, or for which they might face incarceration. Defendant contends the court erred by not allowing Danny to testify about how “he was affected by his experiences in the trailer park.” He did in fact testify to this effect.

The court excluded as irrelevant only testimony about Danny’s experiences with persons other than his mother at the park before defendant was bom. This limitation was well within its discretion. Defendant also argues that the court improperly sustained a hearsay objection to Danny’s testimony that one of defendant’s cousins, David Daulton, had drawn a gun on a police officer and “if the police officer hadn’t have known him and had to repeatedly tell him, ‘Put the gun down,’ he would have shot him.” Danny learned of the incident from David Daulton.

Defense counsel asserted without elaboration that the statement was against penal interest, and that even if it was hearsay, he was “simply offering it for the effect, the state of mind of my client and the effect of all of the family members on my client and what has happened to them.” The court properly mled that the testimony was hearsay, as an out-of-court statement offered to prove the incident occurred. (Evid.

Code, § 1200, subd. (a).) The court noted that if there was “evidence that the defendant was told of a particular incident, then of course that can come in, not for the tmth of the matter asserted, but simply to show what he was to

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