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People v. Brooks

Supreme Court of California

March 20, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
DONALD LEWIS BROOKS, Defendant and Appellant.

         Superior Court Los Angeles County No. PA032918, Warren G. Greene Judge

          John L. Staley, under appointment by the Supreme Court, for Defendant and Appellant.

          Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Sharlene A. Honnaka and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.

          Cantil-Sakauye, C. J.

         A jury convicted Donald Lewis Brooks of the first degree murder of Lisa Kerr (Pen. Code, § 187, subd. (a)), [1] and found true two special-circumstance allegations - that the murder was committed while defendant was engaged in the commission of kidnapping (§ 190.2, subd. (a)(17)(B)), and that the murder was intentional and involved the infliction of torture (§ 190.2, subd. (a)(18)). The jury also convicted defendant of arson causing great bodily injury (§ 451, subd. (a)), and stalking (§ 646.9, subd. (a)). After a penalty phase, the jury returned a verdict of death. Defendant moved for modification of his sentence to life without the possibility of parole (§ 190.4, subd. (e)). The trial court denied the motion and sentenced him to death.[2] Defendant's appeal is automatic. (§ 1239, subd. (b).) For the reasons that follow, we affirm the judgment.

         I. FACTS

         A. Guilt Phase Evidence

         1. Prosecution evidence

         Defendant met the homicide victim, Lisa Kerr, in October 1997 at a dance sponsored by Alcoholics Anonymous (AA), an organization to which they both belonged. For about 10 months, defendant kept it a secret that he was having an affair with Kerr, who was married and the mother of a young son. In August 1998, however, defendant revealed the affair during a lengthy conversation with another AA member, Mark Harvey. Defendant told Harvey that he was in love with Kerr, that their relationship was perfect, and that his life was finally falling into place. But defendant also indicated that he was upset and frustrated because Kerr had recently decided to reconcile with her husband for the sake of their son. Defendant told Harvey that he did not want his relationship with Kerr to end, and that he wanted to stab Kerr's husband or “get him out of the picture.”

         Kerr soon began expressing to friends that she was afraid of defendant. One day in late September 1998, for example, she made a series of phone calls to Harvey's girlfriend, Lynda Farnand, who also knew defendant. According to Farnand, Kerr was talking very fast and sounded scared. After the last conversation that day, Farnand accompanied Kerr to the local police station. Kerr called Farnand again several days later, this time telling her she was concerned about three messages defendant had left on her home telephone answering machine. Farnand came to the house and listened to the messages. The first message was simply music. The second message began with music and ended with defendant calling Kerr a slut and a whore. In the final message, Farnand heard defendant say that “if he couldn't have her, nobody could have her.”

         Around the same time that Kerr was starting to confide in others that she feared defendant, defendant was talking to friends about the affair, saying he was frustrated with being “led on” by Kerr, and expressing open hostility toward Kerr's husband. One of the individuals with whom defendant spoke about the situation was Dwayne Kari, who also knew Kerr and was a good friend of Kerr's husband. Kari disapproved of the affair and repeatedly advised defendant to put an end to it. One morning in November 1998, Kari observed defendant driving his van toward Kerr's home. Kari gave chase and eventually caught up with defendant, accusing him of stalking Kerr and telling him it needed to stop. Kari also warned defendant that “it was going to get personal” after defendant admitted having previously told Kari that he planned to stab Kerr's husband. Defendant responded by saying Kerr was “screwing him around.” To prove his point, defendant retrieved some items from his van. The first item was a tape-recorded message that Kerr had left on defendant's answering machine that said, “All I can say about last night was ‘yummy.' ” The other item was a piece of paper on which Kerr had written “Lisa Brooks.” Defendant said he was going to show these items to Kerr's husband “if she doesn't leave him.”

         Defendant continued to follow Kerr. David Heiserman, who defendant had hired to assist him in his plumbing business, was in the van with defendant when they circled Kerr's home. Defendant explained to Heiserman that he wanted “to see what was going on, ” then parked the van one block away and was gone for 25 minutes. In December 1998, Kerr told her friend Cheryl Zornes that she feared defendant because “every time she turned around” he was outside her home or workplace watching her. Kerr also told her friend that she was going to inform her husband about the affair before defendant did, and that she and her husband were going to split up after Christmas. At some point during that conversation, Kerr mentioned that, for her birthday, defendant had arranged to have an airplane with a banner fly over her house, telling her friend, “Look what he's willing to do for me.” According to Kerr's friend, Kerr seemed scared and confused when she said that.

         Despite her expressions of fear, Kerr accepted defendant's offer of financial assistance after separating from her husband and moving to her own apartment in January 1999. Defendant signed the rental agreement, naming “Donald Brooks and Lisa Brooks” as the tenants. According to Kerr's close friend, Kimberlee Hyer, Kerr said the only reason that defendant was in her life was “for the money.” Hyer eventually helped Kerr pay her bills, telling Kerr that “she didn't ever have to ask [defendant] for money again.” According to defendant's plumbing assistant Heiserman, Kerr was sarcastic and rude to defendant and made fun of him in front of others.

         Meanwhile, defendant's obsession with Kerr intensified, and he stepped up his surveillance of her. He continued to follow Kerr to or from places he knew she would be, such as her workplace, her apartment, and certain bars. Defendant also showed Heiserman a package containing a mail-ordered listening device that he was going to use to bug Kerr's apartment. According to Heiserman, defendant was upset with Kerr because she wanted to go back to her husband and family and because he believed she was “running around on him” with fellow AA member Mark Harvey. In February or early March 1999, defendant told Heiserman that he was tormented by thoughts of Kerr, and said once or twice that he wanted to kill her by blowing up her car or being a sniper. According to Heiserman, defendant also talked about blowing up Kerr's car or setting it on fire in order to get her “off his mind.”

         In the days and weeks preceding Kerr's death, defendant appeared even more consumed by his thoughts of Kerr. According to Heiserman, defendant's appearance was uncharacteristically disheveled and he was so “out of control” that Heiserman quit working for him. Defendant told Heiserman that he wanted Kerr to leave her family and start a family with him. He also said that, were she to refuse, he “wouldn't be able to live with it or be able to see her, ” and again mentioned blowing up her car. Meanwhile, Kerr's fear of defendant became more acute. According to Kerr's friend Hyer, 10 days before Kerr's death she insisted Hyer promise that she would take care of Kerr's son in the event anything happened to her.

         On March 23, 1999, the day prior to Kerr's death, Kerr drove her car to Harvey's house around 7:00 p.m. to babysit one of his two young daughters so that he could attend an AA meeting. When Harvey returned to the residence around 10:00 p.m., he noticed the silhouette of someone and the glow of a cigarette at the edge of the fence and driveway, near some bushes. His back neighbor's dogs were barking, but he did not investigate. When Harvey entered the house, he saw Kerr asleep on the couch and his daughter asleep in her crib.

         Kerr awoke around 11:00 p.m., and went outside to smoke. When she came back inside, she was shaking and nervous, and Harvey asked what was wrong. Kerr told him it would not be a good idea for her to accept his earlier offer for her to rent a room in his home because defendant had threatened to kill Harvey and his children in order to get to her. Kerr started to leave, but then said to Harvey, “We need to talk.” Kerr and Harvey went back inside the house and sat in the living room on separate couches, one of which was located near an open heater vent, and they talked for the next two hours, until 1:15 a.m. Sometime during their conversation, Kerr became very upset and told Harvey she was afraid of defendant because he was following her to work and AA meetings, and had threatened to kill her. Kerr also indicated that she was frustrated by her relationships with her husband and defendant, who she described as “overwhelmingly emotional.” She told Harvey she “adored him” for being “the balance” between the two men. Kerr and Harvey talked about the possibility of becoming physically involved, but they agreed that they would not do so. At one point, however, Kerr sat on the floor while Harvey massaged her shoulders for a minute.

         When Kerr and Harvey had finished talking and walked outside, Harvey tried to give Kerr a hug goodbye. She warned, “Be careful, ‘Squirrel Boy' might be watching us.” Kerr previously had referred to defendant as “Squirrel Boy.” Before Kerr departed, Harvey asked her to call him when she arrived home. He never received a call.

         At 4:11 a.m., about three hours after Kerr and Harvey parted ways, firefighters responded to a report of a fire adjacent to the southbound Hollywood Freeway in the San Fernando Valley, at the Roscoe Boulevard exit ramp. An intense fire had engulfed a vehicle located near the bottom of a 30- or 40-foot embankment, and most of the flames were coming from the car's interior, not from the engine. Firefighters succeeded in extinguishing the fire in two to three minutes. An arson investigator was summoned when a body was discovered on the floorboard behind the front seats.

         Arson investigator Michael Camello arrived shortly after being called to the scene. His observations regarding the burn patterns and the amount, character, and location of damage to the car led him to conclude that the fire most probably had been intentionally set with a flammable liquid that was ignited with an open flame. For example, the car's windows and much of the floorboard carpeting had burned away. This showed that the fire burned fast and low and had generated an intense amount of heat, which is characteristic of fires started with the use of a flammable liquid, rather than fires that began accidentally. Camello noticed a piece of rolled-up paper on the driver's seat, which he believed may have been lit and then thrown into the car from a safe distance to ignite the flammable liquid. He also found, stuffed inside the filler neck of the gas tank, pieces of cloth that had been lit and burned, which suggested to him a failed attempt to set the car on fire. He explained that such a method is rarely successful, and that someone attempting to set a car on fire in this manner might “not [be] thinking clearly.”

         Camello further concluded, based on the position of the victim's body and the nature of her injuries, that the flammable liquid used to start the fire had also been poured over her. Specifically, the victim was on the floorboard between the front and back seats, lying on her right side with her head facing toward the rear of the car and her legs wedged in behind the front passenger seat. The body was over the differential tunnel, which created an “open space” under her. In Camello's opinion, the flammable liquid that had been poured on top of the victim drained into this open space, burning away the carpeting, her hands, and the lower portion of her legs and feet. Camello found it noteworthy that the side of the victim's face, neck, and shoulder covering her purse on the floor had not burned away, which suggested to him that when the fire was lit she had been in the same position in which firefighters had found her. He also saw no evidence that the victim had been restrained.

         Among the emergency personnel who responded to the scene of the car fire was California Highway Patrol Officer Raul Campos. His search of the area disclosed no evidence suggesting that the car had been involved in a traffic collision. For example, the car's “pop-up” headlights were closed, which would not occur if the car was involved in an accident. The position of Kerr's body and the location of the vehicle itself also were inconsistent with having been involved in a collision. Specifically, the car was at a 90-degree angle from the off-ramp. Had the vehicle gone over the edge of the off-ramp as a result of an accident, it would have come to rest at a 45-degree angle and possibly gone through the chain link fence that bordered the bottom of the embankment. Campos believed that foul play was involved and that the car had been either pushed or driven at a low speed down the embankment.

         Heiserman learned from a morning news report that Kerr had died in a car fire in the early morning hours, and he unsuccessfully tried to contact defendant. Around 11:30 a.m., defendant called Heiserman, ignoring Heiserman's question regarding his whereabouts and asking him, “[I]s she okay?” When Heiserman responded, “Is who okay?, ” defendant replied, “C'mon Smiley. Is she okay?” When Heiserman asked what was going on, defendant rephrased his question, this time asking, “Is she dead?” Heiserman said, “Yes.” Defendant started to cry and said he had to go. He called Heiserman again around 7:00 p.m., sounding scared and upset. Defendant asked him to tell defendant's daughter that he loved her, and he offered Heiserman his van and all of his plumbing tools.

         An autopsy performed the following day showed that Kerr died primarily as a result of smoke inhalation and thermal injuries. Other factors, for example, strangulation, also may have played some role in her death, but they could not be evaluated due to the extensive charring of her body. According to the medical examiner who conducted the autopsy, the presence of soot in Kerr's mouth, airway, larynx, trachea, and bronchi, which can occur only through active breathing, indicated that Kerr was alive at the beginning of the fire. He saw no evidence of intoxication or the use of restraints that would explain why Kerr made no attempt to escape the fire, and believed she was most likely unconscious when the fire started. From the extensive charring of Kerr's body and toxicology reports showing low levels of carbon monoxide in the bloodstream, the medical examiner further concluded that Kerr had been killed by a “flash fire” that likely involved the use of an accelerant.

         The investigation into Kerr's death involved further examination of the burned-out car, which had been transported from the scene of the fire to a towing yard. With the assistance of a dog trained to detect the odor of common liquid accelerants, an arson investigator concluded from his examination of the debris removed from the vehicle that an ignitable liquid had been distributed in the car and that the fire had been intentionally set. In contrast, a criminalist who used a gas chromatograph with mass selector detector and other methods to analyze the same debris examined by the arson investigator was unable to ascertain either the presence or absence of an ignitable liquid.

         The investigation also included a review of defendant's cellular telephone records, which showed the times and general locations from which he made or received calls. In the early evening the day before Kerr's death, defendant called her pager four times, with no further calls after 7:18 p.m. In the early morning hours of the next day, defendant made or received several calls close in time to the fire. One call was transmitted near the fire scene at 4:23 a.m., just minutes after the firefighters' arrival. Two calls were then transmitted at 5:00 and 5:01 a.m., in close proximity to Kerr's residence.

         In the course of the investigation, one of the detectives drove from Harvey's house to Kerr's residence and from Hervey's home and Kerr's residence to the scene of the fire so as to calculate how long it took to reach each of those locations. According to the officer, the trip from Harvey's home to Kerr's residence would have taken about 20 minutes in the early morning hours. The drive from Kerr's residence to the Roscoe Avenue off-ramp where the fire occurred would have taken between five and 10 minutes at that time of the day. The drive from Harvey's house to the off-ramp would have taken 15 to 20 minutes.

         As indicated by telephone records, defendant fled the day of Kerr's death, driving through Arizona and New Mexico until he reached Colorado about one week later. He drove a sedan that he had purchased “on the street” in California, leaving behind his work van and plumbing tools.

         Defendant took the name “Don Blanton, ” and lived with others in a house in Colorado Springs until his arrest four months later, in July 1999. He continued his trade as a plumber, sometimes working with David Jayne, one of his housemates. At some point, defendant told Jayne he was looking for new identification because he had gotten in trouble in California. About three weeks before his arrest, defendant disclosed to Jayne that he was in trouble because he had strangled his girlfriend Lisa. Defendant explained that he suspected his girlfriend was cheating on him, and that he had been shadowing her. He said he followed her to the man's home and went into the crawl space underneath the house to listen to their conversation. Defendant told Jayne he heard his girlfriend belittling defendant's father, which angered him. He also told Jayne he heard his girlfriend and the other man having sex. Defendant said he then followed his girlfriend to her apartment, where he strangled her, “like a spur-of-the-moment type thing.” Defendant illustrated the act for Jayne by holding his hands in a strangling motion and saying, “I'm going to go to jail for assault anyway, so I might as well kill her.” According to Jayne, defendant was calm when recounting the events.

         Defendant was arrested at the Colorado residence in late July 1999. The prosecutor presented evidence at trial that defendant told the arresting officer that at 1:30 a.m. on the day of the fire, he and Kerr had a brief argument at her apartment, and she was very angry when she left in her car. According to defendant's account, he returned to the home he shared with his father. Later, when defendant was driving on the freeway in the early morning hours, he saw Kerr's car in flames and firefighters at the scene. Defendant explained that he believed Kerr was having a sexual relationship with Harvey and that he felt angry and betrayed by Kerr, particularly because he was paying for her apartment. He also indicated that he had formed his suspicions and was feeling angry at Kerr well before the night of her death.

         While in custody after extradition to California, defendant again spoke with his former plumbing assistant Heiserman, this time describing the events leading to Kerr's death. Specifically, defendant explained that he had followed Kerr to Harvey's home, hid under the house, and heard them belittling him. Defendant then told Heiserman he “just couldn't take it, ” and that he confronted Kerr when she got to her car as she was leaving. He said he strangled Kerr and, when she “was out, ” put her in the backseat of her car.

         2. Defense evidence

         The defense did not dispute that defendant killed Kerr. Rather, the defense presented evidence to support the theory that defendant was guilty of heat of passion voluntary manslaughter, not murder. For example, the defense investigator testified that Heiserman told him defendant had admitted becoming incensed and fatally strangling Kerr after he overheard her calling him a “jerk.” The defense also called several witnesses in an attempt to show that Kerr was not fearful of defendant but rather happily involved with, or taking advantage of, him. One such witness was Jody Wheeler, a bartender at the Van Nuys bar where defendant often joined his father for lunch. She testified that defendant introduced her to Kerr sometime in 1999 when he recommended Kerr for a job at the bar. Wheeler trained Kerr as a bartender for one day but did not hire her because the bar had a policy against employees having their boyfriends at the bar. From that point in time, until her death, Kerr would call the bar sometimes 10 times a day asking for defendant.

         B. Penalty Phase Evidence

         1. Prosecution's case in aggravation

         The prosecution called Kerr's family members and a friend to testify regarding the impact of Kerr's death on themselves and other members of Kerr's family, including her young son and mother.

         The prosecutor also presented the testimony of defendant's former wife, Mary C., who described for the jury acts of domestic violence that occurred during a tumultuous three-year marriage replete with bitter arguments and mutual combat. According to Mary, when she was pregnant with the first of their two children, defendant entered the bathroom where she was running water into the bathtub, grabbed her by the hair, and pushed her into the hot water. She admitted during cross-examination that the night before that incident, she had punched defendant in the eye. Mary also related that when she was eight months pregnant with their second child, defendant pointed a loaded 12-gauge shotgun at her stomach during an argument, asking her, “Do you want to die?” She responded by saying, “Pull the fucking trigger. I'm tired of talking about it.” On another occasion some months later, according to Mary, she returned home to find defendant gone and a group of people she did not know in the house. Their daughter, who was now four months old, was sitting on one person's lap. The next day, when Mary angrily confronted defendant about leaving the child with strangers, defendant grabbed the arms of the wicker chair she was sitting in and jerked it toward a burning fireplace. She kicked him and took off running.

         Mary told the jury that she separated from defendant because of the violence, and that she had obtained a restraining order after commencing divorce proceedings. Mary also related that defendant left the state for a short period of time to “straighten out his life.” When he returned, however, he came over to the house, angry about the restraining order. According to Mary, defendant told her he should frame the order so that he could “always remember what you've put me through, ” to which Mary responded that defendant could “stick it up his ass.” A fight ensued in which defendant picked up their daughter, grabbed the keys, and said he was leaving with the children. Mary said, “No you're not, ” and tried to call 911, but defendant ripped the phone out of the wall. Mary smacked defendant and ran to a neighbor's house, with defendant in pursuit. Defendant climbed over the neighbor's fence, placed Mary in a headlock, and dragged her back toward their house. During cross-examination, Mary described defendant as a person with a good heart, but said that when he helped someone, he believed that person was indebted to him. She testified further that she never saw defendant seriously hurt anyone.

         2. Defense case in mitigation

         The defense called five witnesses to testify regarding defendant's background, his good character, and his love for, and dedication to, his three children.

         Defendant's older half sister and mother testified regarding defendant's upbringing in an environment of alcohol abuse and domestic violence. His sister first chronicled for the jury their mother's many marriages and divorces. She indicated that defendant was seven years old when his parents divorced, and that from an early age defendant had witnessed his mother and father arguing and fighting, which greatly upset him. Defendant's sister and his mother both testified that defendant's father was an alcoholic, as was his stepfather, Edwin Rawl. They also indicated that two years after defendant's mother married Rawl, the incidents of intoxication-fueled domestic violence in the household not only resumed, but increased in severity. Defendant saw Rawl beat his mother often, and defendant sometimes intervened. On one occasion, the children watched as Rawl chased their mother around the house with a rifle, which he eventually discharged over the refrigerator. In another incident, defendant dragged his mother away from her bed when Rawl tried to set it on fire. Defendant's attempt to intervene in the violent incidents continued for as long as he lived at the house, until he graduated from high school and left home for the Army.

         Defendant's sister and mother also recounted for the jury several incidents of extraordinary domestic violence. On one occasion, Rawl became enraged after receiving an exorbitant medical bill in connection with the premature birth of defendant's younger half brother. With defendant at home, Rawl poured gasoline around the house the day before defendant's mother and the infant were to be discharged from the hospital, although he ultimately did not set the house on fire. While in a drunken rage on another occasion, Rawl shot defendant's mother in the back with an M1 carbine. Defendant, who was 13 years old and home at the time of the shooting, was very upset. Although Rawl was arrested for the assault, defendant's mother eventually invited him back into the house and declined to press charges. The alcohol abuse and violence continued, however, until she and Rawl finally divorced years later.

         All of the defense witnesses testified regarding defendant's great kindness toward others. For example, the owner of a plumbing business who frequently gave defendant work as a subcontractor told the jury that defendant often hired assistants who had been released from jail or prison in order to give them a chance. The former wife of a general contractor who also regularly hired defendant as a plumbing subcontractor likewise indicated that defendant was a caring person who “would give anybody the shirt off his back.” According to defendant's mother, defendant would let people live with him until they could get back on their feet.

         Some of the witnesses testified furthermore regarding defendant's dedication to his children. The plumbing business owner related, for example, that defendant was adamant about declining work if it would have interfered with his every-other-weekend custody of his younger daughter.

         All of the witnesses asked the jury to spare defendant's life.

         II. DISCUSSION

         A. Pretrial and Guilt Phase Issues

         1. Striking of defendant's testimony at the suppression hearing

         The defense filed a pretrial motion to suppress defendant's statements to interrogating officers on the ground that the statements were obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436. Defendant testified at a hearing on the motion, but the trial court ordered defendant's testimony stricken in its entirety after he refused to answer one of the prosecutor's questions during cross-examination. The court ultimately granted the motion to suppress in part, ruling that some of the custodial statements were improperly obtained. Of those statements that the court found admissible, only one was presented to the jury in the prosecution's case-in-chief.

         Defendant asserts that his conviction and death sentence must be reversed because the ruling striking his testimony prevented the court from properly evaluating his motion to suppress in violation of various state and federal constitutional rights, including his due process rights to a fair trial and to present a defense. Alternatively, defendant urges that the judgment be vacated and the matter remanded to the trial judge to reconsider his suppression motion in light of defendant's testimony at the hearing. As we will explain, neither reversal nor vacation of the judgment is required. Even were this court to conclude that the trial court abused its discretion by striking defendant's testimony in its entirety, any error could not have prejudiced defendant because the custodial statement that was presented at trial was similar to, and less damaging than, defendant's other properly admitted statements implicating himself in the murder.

         a. Background

         Defendant was arrested on July 21, 1999. He was taken to the Colorado Springs police station, where Colorado Springs Detective Derek Graham conducted an unrecorded interview of defendant. The next day, while still detained in Colorado Springs, defendant spoke with Los Angeles Police Department Detective Lindy Gligorijevic and her partner Detective Rick Gonzalez in a videotaped interview. Four days later, on July 26, defendant made additional statements to Gligorijevic and Gonzalez, first, while they transported him to the airport and second, during the flight back to Los Angeles.

         Before trial, the defense moved to suppress all four of defendant's statements to the interrogating officers on the ground they were obtained in violation of Miranda v. Arizona, supra, 384 U.S. 436, arguing both that defendant had not waived his Miranda rights and that the officers failed to stop their questioning when defendant invoked his right to counsel. The court held a hearing over the course of two days.

         1. Testimony of Detective Graham

         Detective Graham of the Colorado Springs Police Department testified that he spoke with defendant for approximately three hours, during which time Graham mostly listened while defendant volunteered a substantial amount of information about the crimes. Graham indicated that he spent the first 30 minutes sitting with defendant while he and defendant ate hamburgers out on a patio, listening to his concerns and talking with him about his Miranda rights. When defendant was then formally advised of his rights and presented with a written waiver form, he signed the form and agreed to speak with Graham. According to Graham, defendant never asked for an attorney at any time, either before or after signing the waiver form or at any point during the three-hour interview.

         2. Testimony of Detective Gligorijevic

         A transcript of the interrogation conducted by Detectives Gligorijevic and Gonzales the day after defendant's arrest showed that Gligorijevic began her formal interview by confirming with defendant that he had been advised of and waived his Miranda rights before speaking with Detective Graham the previous day. Detective Gligorijevic testified at the hearing that she interrogated defendant for about two hours, stopping the interview at the point she believed defendant clearly was asking for counsel.

         Detective Gligorijevic testified further that defendant spoke to her and her partner four days later during the drive to the airport and the flight to Los Angeles. The conversation began in the car when defendant asked Gligorijevic if she and Detective Gonzalez were wearing wires or tape recording him. Gligorijevic assured him that they were not. Defendant then asked whether making a fuller statement could be used against him. Gligorijevic responded that whatever defendant said now would not be used against him because they were merely transporting him and he was “outside Miranda.” According to Gligorijevic, defendant then spoke with the officers nonstop for hours, providing detailed information regarding his relationship with Kerr and the events leading up to and including her death, which Gligorijevic related to the court.

         3. Defendant's testimony on direct examination

         Defendant testified on his own behalf at the hearing. With regard to his dealings with the arresting officers, defendant testified that at the time of his arrest in Colorado Springs, he asked how he could speak with a lawyer but the officer “blew it off.” According to defendant, he repeated that question about 30 minutes later, when Detective Graham and his partner took him into a coffee room at the police station. Defendant acknowledged at the hearing that he later signed a written waiver of his Miranda rights, but he explained that he did so because the officers had led him to believe they would help him.

         Defendant also described his interview with the detectives from Los Angeles. According to defendant, during that interrogation, he repeatedly asked why there was no one helping him, and told the detectives several times that he was uncomfortable and wanted to leave the room. Defendant explained at the hearing that he had not wanted to be in the interrogation room, both because he believed he was being secretly videotaped and because no one was there speaking for him or helping him.

         4. Cross-examination of defendant

         The prosecutor began his cross-examination of defendant by asking him several questions about his flight back to Los Angeles with Detectives Gligorijevic and Gonzalez. When the prosecutor then asked defendant whether he told the detectives during the flight that he had killed Kerr, defense counsel objected. Specifically, he argued that the question went beyond the scope of direct examination and was irrelevant to the issue before the court, which was whether defendant had been told by the detectives while driving to the airport that anything he said could not be used against him. Counsel acknowledged that he had not objected when the prosecutor elicited from Detective Gligorijevic the substance of defendant's incriminating statements during the ride to the airport and the flight to Los Angeles. Counsel pointed out, however, that he had not covered that subject with defendant during his testimony, and argued that the prosecutor's cross-examination had therefore exceeded the scope of direct examination.

         The court observed that the subject matter of all of the statements at issue in the suppression motion seemed “fair game” for questioning, and overruled the defense objection.

         5. Refusal to answer and striking of testimony

         When the proceedings resumed after a short recess, defense counsel moved the court for reconsideration of its prior ruling. Counsel explained that he did not question defendant about his statements en route to the airport and during the flight to Los Angeles because the defense position was that those statements must be suppressed on the ground defendant was told that anything he said would not be used against him. Counsel also informed the court that although he had advised defendant not to answer any questions about the flight, defendant was “more than willing” to answer all questions concerning the time period covered on direct examination.

         The court denied the motion for reconsideration and reaffirmed its prior ruling. The court emphasized that although defense counsel had questioned defendant regarding only two of the four statements that had been placed in issue by the suppression motion, Detective Gligorijevic had provided “significant testimony” regarding the other two statements, about which the prosecutor was entitled to cross-examine defendant. When the court subsequently ordered defendant to answer the prosecutor's question, defendant refused to do so. The court then granted the prosecutor's motion to strike all of defendant's direct examination testimony, observing that defendant was not permitted to “pick and choose” the questions he is willing to answer.

         6. Rulings on the motion to suppress defendant's statements to interrogating officers

         The court ruled that defendant's statements to Detective Graham during the 30-minute period prior to his signing the waiver form would be suppressed because he had not been properly advised of his Miranda rights, but that any statements he made thereafter were admissible.

         At trial, the prosecutor elicited defendant's postwaiver statements during Graham's testimony.

         The court also granted in part and denied in part the motion to suppress defendant's statements to Detectives Gligorijevic and Gonzalez. Relying primarily on the transcript of the July 22 interrogation in the police station, the court found that defendant had unequivocally and unambiguously invoked his right to counsel well before the detectives ceased their questioning, and ordered all statements after his request for a lawyer to be suppressed. Although the court declined to suppress the portion of defendant's July 22 statement that he made before invoking his right to counsel, the prosecution did not present that evidence during its guilt phase case.

         Finally, the court ordered that defendant's statements to the detectives during the ride to the airport and the flight to Los Angeles be suppressed in their entirety. As the court put it, “basic justice” demanded that all of these admissions be excluded from the prosecution's case-in-chief.

         b. Discussion

         Defendant argues that the court erred by striking his suppression hearing testimony in its entirety because the question he refused to answer was not relevant to the issue before the court. He further asserts that the order to strike prevented the court from accurately evaluating and determining whether all of his admissions were obtained in violation of Miranda v. Arizona, supra, 384 U.S. 436 and must be suppressed. We conclude that defendant is not entitled to relief, as explained below.

         A criminal defendant's due process right to defend against the state's accusations includes the right to testify in his or her own behalf. (Chambers v. Mississippi (1973) 410 U.S. 284, 294; People v. Robles (1970) 2 Cal.3d 205, 215; People v. Reynolds (1984) 152 Cal.App.3d 42, 45-46.) However, a defendant's right to take the witness stand to offer his or her account of the events in question coexists with the prosecutor's right to fairly test that testimony through cross-examination. (Fost v. Superior Court (2000) 80 Cal.App.4th 724, 733-734; People v. Reynolds, at p. 46; see generally Chambers v. Mississippi, at p. 295.) And it is well settled furthermore that “[a] defendant cannot, by testifying to a state of things contrary to and inconsistent with the evidence of the prosecution, thus indirectly denying the testimony against him, ... limit the cross-examination to the precise facts concerning which he testifies.” (People v. Cooper (1991) 53 Cal.3d 771, 822; accord, People v. Cornejo (1979) 92 Cal.App.3d 637, 655.) Courts have long recognized that when a defendant refuses to answer some or all of a prosecutor's relevant questions during cross-examination, the trial court has discretion to strike the defendant's direct testimony, either in part or in its entirety. (People v. Miller (1990) 50 Cal.3d 954, 999; People v. Reynolds, at p. 47; People v. McGowan (1926) 80 Cal.App. 293, 298-299.)

         In People v. Reynolds, supra, 152 Cal.App.3d 42, the Court of Appeal was mindful that the trial court's order striking all of the defendant's direct testimony in that case “prevented [the] defendant from exercising a fundamental right.” (Id. at p. 47.) Accordingly, the appellate court recommended that a court exercising its discretion to strike testimony consider first whether the witness has refused to submit to cross-examination altogether, rather than refused to answer only one or more questions. In the latter circumstance, the Court of Appeal suggested, the witness's direct testimony need not be stricken in its entirety in every case, and the court should consider both the motive for the refusal to answer and the materiality of the answer. The Court of Appeal also suggested that the court consider solutions short of striking a defendant's entire testimony, such as striking only a portion of the testimony, or instructing the jurors that they may take into account the refusal to answer when assessing the defendant's credibility. (Id. at pp. 47-48.)

         We find that the decision in People v. Reynolds provides a useful framework, not only for a trial court to follow in exercising its discretion in these circumstances, but also for a reviewing court to use when assessing an appellant's challenge to the trial court's ruling on a motion to strike his or her direct testimony. We follow the suggested approach here to consider defendant's claim that the court abused its discretion in striking his suppression hearing testimony in its entirety.

         Defendant's motive for refusing to answer the prosecutor's question appears to have been a matter of tactics. Defense counsel strongly disagreed with the trial court's ruling rejecting his arguments that the prosecutor's line of questioning went beyond the scope of direct examination and was irrelevant to the issue before the court, which was whether the detectives had assured defendant that nothing he said could be used against him. Counsel informed the court, moreover, that he had advised defendant not to answer any questions about the flight to Los Angeles, acknowledging that the court would likely strike defendant's testimony were defendant to refuse to respond to the prosecutor's question. By accepting counsel's advice and refusing to answer, defendant apparently decided that there was more utility in keeping out of the record his response to the prosecutor's question than there was in having the court consider his hearing testimony up to that point. Defendant's tactical decision did not exempt him from cross-examination. (Cf. People v. Reynolds, supra, 152 Cal.App.3d at p. 46 [defendant's fear of attack by prison inmates for being a “snitch” were he to answer the prosecutor's question, although not baseless, did not constitute a legal exemption from cross-examination].)

         Less clear is whether the prosecutor's question asking defendant whether he told the detectives that he had killed Kerr was material to the issues at the suppression hearing. We agree with the People that defendant's credibility was central to the outcome of the hearing, which largely pitted defendant's word regarding the timing of his invocation of the right to counsel and the possibility of an improper inducement to waiving his rights against that of the testifying officers. Although whether or not defendant admitted to the detectives that he killed Kerr did not bear directly on either of those disputed issues, it may have been relevant to his credibility. Were defendant to have said that he told the detectives he had killed Kerr, that response might have bolstered his credibility, generally speaking, in that such a statement would have been against his penal interest and could have been used to impeach him in the event he decided to testify on his own behalf at trial. (See People v. Seminoff (2008) 159 Cal.App.4th 518, 527 [using similar reasoning to conclude that the codefendant's responses to questions she refused to answer on 5th Amend. grounds were crucial to an assessment of her credibility in the suppression hearing].) By contrast, were defendant to deny having confessed to killing Kerr, his denial might have reflected poorly on his credibility generally, given Detective Gligorijevic's highly detailed testimony relating defendant's account of events leading up to and including the homicide.

         Defendant's credibility was not critical to whether the statements defendant made to detectives on the drive to the airport and on the flight to Los Angeles should be suppressed, however. As previously mentioned, defense counsel had successfully argued that those statements must be excluded because defendant had been assured by the detectives that anything he said to them at that time could not be used against him. And as defendant points out, counsel's effort to suppress those statements relied, not on defendant's own testimony, but on the testimony of Detective Gligorijevic.

         Even assuming for argument, however, that the court abused its discretion by declining to consider defendant's testimony when ruling on the motion to suppress and that, had it done so, the court would have suppressed all of the challenged statements, we conclude that any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Davis (2009) 46 Cal.4th 539, 598.) The court fully suppressed two of the four sets of challenged statements, and suppressed sizeable portions of the other two. Of those portions of the statements that the court found admissible, only one of them was presented to the jury during the prosecution's case-in-chief, when Detective Graham recounted what defendant had said regarding his relationship with Kerr and his activities around the time of her death.

         Specifically, Graham testified that defendant told him that at 1:30 a.m. on the day of the fire, he and Kerr had had a brief argument at her apartment and that she was angry when she left in her car. According to defendant, he was driving on the freeway in the early morning hours when he saw Kerr's car in flames and firefighters at the scene. Defendant explained to Graham that he believed Kerr was having a sexual relationship with Harvey and that he felt angry and betrayed by Kerr, particularly because he was paying for her apartment. He also indicated to the officer that he had formed his suspicions and was feeling angry at Kerr well before the night of her death.

         But what Detective Graham told the jury about defendant's relationship with Kerr and his activities around the time of her death was both cumulative of, and less damaging than, other testimony and evidence admitted at trial that established defendant's guilt. Like Graham, defendant's plumbing assistant Heiserman testified that defendant told him he was upset with Kerr because he suspected she was having a sexual relationship with Harvey, and that defendant had argued with Kerr on the night of her death. Both witnesses also indicated that defendant was angry with Kerr well before her death. But Heiserman also testified that defendant had expressed a desire to kill Kerr by blowing up her car or setting it on fire. And, Heiserman informed the jury that defendant admitted following Kerr to Harvey's house where he listened to their conversation, and then strangled her and put her in the back of her car. Defendant's Colorado Springs roommate David Jayne likewise testified that defendant admitted strangling his girlfriend after secretly listening to a conversation between her and a man with whom, he believed, she was sexually involved.

         The People point out that the defense did not challenge the evidence that defendant killed Kerr, but had argued instead that he killed her in the heat of passion and therefore was guilty of voluntary manslaughter, not murder. Defendant asserts, however, that defense counsel's theory was substantially impacted by the court's rulings striking defendant's testimony and refusing to suppress his admissions to Graham. Had the court suppressed those statements as well, he posits, it is likely the defense would not have conceded that defendant killed Kerr.

         We find defendant's assertion highly speculative, given that defendant made far more damaging admissions to other witnesses, as discussed above. For a similar reason, we reject defendant's further contention that defense counsel's concession was the only connection between defendant and Kerr's death. Defendant's statements to Detective Graham indeed placed defendant at the location where Kerr's burning vehicle had been found. But there was other, strong evidence connecting defendant to her death, such as defendant's call to Heiserman on the morning of Kerr's death asking, “Is she dead?” and the mobile telephone records showing his immediate flight from Southern California. We conclude that the court's striking of defendant's testimony at the suppression hearing and refusal to suppress defendant's statements to Graham, even if error, was harmless beyond a reasonable doubt.

         2. Failure to appoint a second attorney

         Section 987, subdivision (d), provides trial courts with discretion to appoint at public expense a second attorney in a capital case “upon a written request of the first attorney appointed.” Implicitly acknowledging that defense counsel did not make a request for the appointment of cocounsel, defendant contends that the court's failure, on its own motion, to appoint a second attorney to represent him violated his various rights under the state and federal Constitutions. We reject defendant's assertion that to protect those constitutional rights, the court had a duty to appoint cocounsel.

         Our decisions have long emphasized that “[t]he appointment of a second counsel in a capital case is not an absolute right protected by either the state or the federal Constitution.” (People v. Clark (1993) 5 Cal.4th 950, 997, fn. 22; accord, People v. Cunningham (2015) 61 Cal.4th 609, 667; People v. Lancaster (2007) 41 Cal.4th 50, 71.) From this it follows that the failure to appoint a second attorney does not, in itself, implicate any constitutional guarantees.

         Defendant asserts nonetheless that the constitutional requirements of effective representation, heightened reliability, and an individualized determination of guilt and penalty require capital defendants to be represented by two attorneys. For support, he points to the recommendation in the 1989 American Bar Association's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (1989) (ABA Guidelines) that “two qualified trial attorneys should be assigned to represent the defendant.” (ABA Guidelines, guideline 2.1.) According to the commentary to this guideline, the responsibilities of trial counsel in a capital case are “sufficiently onerous” to require the appointment of two attorneys “in order to ensure that the capital defendant receives the best possible representation.” (Id., comm. foll. guideline 2.1.)

         As defendant acknowledges, this court has long recognized that the appointment of a second attorney to represent a capital defendant is a decision left to the trial court's discretion, based on a proper showing by the defendant that an additional attorney is necessary. (Keenan v. Superior Court (1982) 31 Cal.3d 424, 430 (Keenan); People v. Jackson (1980) 28 Cal.3d 264, 287.) We decline defendant's invitation to overrule these decisions and to hold instead that representation of a capital defendant by a single attorney, because it violates ABA Guidelines, amounts to constitutionally inadequate performance as a matter of law. Defendant is correct that the United States Supreme Court has recognized the ABA Guidelines as “useful ‘guides' ” for assessing the reasonableness of counsel's performance in connection with a defendant's claim of ineffective assistance of counsel. (Bobby v. Van Hook (2009) 558 U.S. 4, 7; see Strickland v. Washington (1984) 466 U.S. 668, 688.) But the high court has also indicated that the ABA Guidelines are not controlling. (Bobby v. Van Hook, at p. 8.) This court likewise has observed that the ABA Guidelines are “far from binding precedent.” (People v. Brown (2014) 59 Cal.4th 86, 113.) Aside from his quotation of guideline 2.1 and its accompanying commentary, defendant fails to offer any persuasive basis on which to conclude that representation by a single attorney amounts to ineffective assistance in every capital case.

         Nor does defendant provide any support for his contention that the constitutional requirement of heightened reliability in a capital case is undermined when the judgment of only one attorney is involved. We note that Keenan emphasized Sixth Amendment concerns when explaining how a trial court should exercise its discretion under section 987, subdivision (d). For example, recognizing that “death is a different kind of punishment from any other, both in terms of severity and finality, ” Keenan directed trial courts to be “particularly sensitive to insure that every safeguard designed to guarantee defendant a full defense be observed.” (Keenan, supra, 31 Cal.3d at p. 430.) But Keenan also made clear that the decision to appoint a second attorney in a capital case is one left to the trial court's sound discretion, based on a showing that the additional attorney is necessary. (Ibid.)

         Defendant's claim that representation by a single attorney denied him equal protection under the law is likewise without merit. Section 987, subdivision (d), authorizes the appointment of a second attorney at public expense in a capital case. But not all capital defendants are similarly situated because not all capital cases present a “genuine need” for a second attorney to “lend important assistance in preparing for trial or presenting the case.” (Keenan, supra, 31 Cal.3d at p. 434.)

         We have expressly rejected in another case a capital defendant's claim that the trial court's failure to appoint, on its own motion, a second attorney to represent him infringed his federal constitutional rights under the Sixth and Eighth Amendments. (People v. Cunningham, supra, 61 Cal.4th at p. 667.) Defendant has presented no persuasive grounds for disturbing that prior conclusion.

         3. Admission of Kerr's statements regarding her fear of defendant

         Defendant was charged with the crimes of murder, stalking, and arson. In connection with the stalking count, the trial court permitted the prosecution to elicit from several witnesses Kerr's out-of-court statements regarding her fear of defendant. (See former § 646.9, subd. (e), as amended by Stats. 1998, ch. 825, § 4, p. 5162; id., ch. 826, § 1, p. 5166; CALJIC No. 9.16.1 (1999 rev.) (6th ed. 1996) [the crime of stalking under former § 646.9 requires a showing that the harassing conduct directed at a specific person actually caused that person “substantial emotional distress”]; cf. People v. Ewing (1999) 76 Cal.App.4th 199, 211-212 [evidence that the victim experienced sleepless nights and had joined a support group for battered women was insufficient to show that she suffered substantial emotional distress for purposes of establishing the stalking charge].)

         Defendant contends the court erred in admitting Kerr's out-of-court statements, in part, because the statements were not admissible under any hearsay exception and should have been excluded as more prejudicial than probative under Evidence Code section 352. His primary argument, however, is that, even if Kerr's statements were relevant to prove the fear element of the stalking charge, the court's limiting instructions were inadequate to prevent the jury from using those statements for the improper purpose of finding that he killed Kerr intentionally and with premeditation, rather than in the heat of passion. Although we conclude that the statements in question were properly admitted, we need not decide whether the court's limiting instructions provided adequate safeguards against the improper use of that evidence because even if they did not, any error was harmless.

         a. Background

         Prosecution witness Mark Harvey testified in large part about his interactions with Kerr on the evening preceding her death. Over repeated defense objections, and after extensive argument by the parties over the course of several court days, the trial court ruled it would permit Harvey to recount several statements Kerr made to him expressing her fear of defendant and relating that defendant had threatened to kill her. In ruling the evidence admissible, the court found Kerr's expressions of fear fell within the state-of-mind exception to the hearsay rule. (Evid. Code, § 1250, subd. (a).) In this regard the court found Kerr's statements were both trustworthy and highly relevant to the issue of whether she was afraid of defendant, an element of the crime of stalking. The court further found that Kerr's statements regarding defendant's threats to kill her were also admissible, but as an admission of a party opponent, not under the state-of-mind exception. In response to defense counsel's objection under Evidence Code section 352, in which he argued that the evidence of defendant's threats was highly prejudicial because the jury would use this evidence to find intent to kill and premeditation, the court determined that the probative value of the evidence far outweighed its prejudice. Acknowledging that the prejudicial impact was considerable, however, the court indicated it would instruct the jury to consider the evidence only when deciding the charge of stalking, and for no other purpose. The court also granted defense counsel's request to give the limiting instruction during Harvey's testimony, rather than at the close of evidence.

         In accordance with the court's ruling, Harvey described for the jury his conversations with Kerr on the night before her death. As mentioned in the factual recitation, Kerr had come to Harvey's home to babysit while Harvey attended an AA meeting. After Harvey returned, Kerr went outside to smoke a cigarette and when she came back inside, she was shaking. When asked what was wrong, Kerr stated that she did not believe it would be a good idea to accept Harvey's earlier offer to rent her a room in his home because defendant had threatened her. More specifically, she told Harvey that defendant had threatened to kill Harvey and his children, if he had to, in order to get to her. The court interrupted Harvey's testimony at this point to instruct the jury about the limited purpose of the testimony, directing the jury “not to consider it for... proof of an intent to commit a murder or any sort of proof of premeditation.”

         Subsequent to Harvey's testimony, the court similarly overruled defense counsel's hearsay and prejudice objections to testimony by three other prosecution witnesses who related Kerr's statements regarding her fear of defendant. Accordingly, Kerr's friend Lynda Farnand testified that Kerr mentioned in three separate conversations that she was afraid of defendant. As during the Harvey testimony, the court interrupted the questioning to instruct the jury that the evidence of Kerr's statements to Farnand was being admitted only to show Kerr's state of mind and whether she was afraid of defendant, for purposes of the stalking charge. When Farnand then testified that Kerr told her defendant once said no one could have Kerr if he could not have her, the court again admonished the jury that the evidence was being introduced for the limited purpose of determining whether or not the victim was afraid for purposes of the stalking count.

         Later, over defense counsel's Evidence Code section 352 objection, the court permitted Kerr's friend Cheryl Zornes to testify briefly regarding a telephone conversation in which Kerr told her she was afraid of defendant because “every time she turned around [defendant] was there, following her.” Another friend, Kim Hyer, likewise was permitted to testify regarding Kerr's statements suggesting she feared defendant. Specifically, Hyer told the jury that Kerr made her promise to take care of Kerr's young son were anything to happen to her. Immediately after this part of Hyer's testimony, the court reminded the jury that the limited purpose of this evidence was its relevance to the fear element of the stalking charge. The court also included a limiting instruction when instructing the jury prior to its deliberations.

         b. Discussion

         1. Admissibility of Kerr's statements

         Defendant argues that Kerr's statements regarding her fear of defendant were not admissible, either as state-of-mind evidence under Evidence Code sections 1250 and 1252, or under Evidence Code section 352.[1] We agree with defendant that Kerr's statements fall into two categories for purposes of analyzing their admissibility, namely, Kerr's statements that she feared defendant, and Kerr's statements indicating that defendant had threatened her. Contrary to defendant's assertions, however, both categories of Kerr's statements were properly admitted below.

         Defendant acknowledges that Kerr's statements that she feared defendant were relevant to the fear element of stalking and that they therefore fell within the scope of the state-of-mind exception under Evidence Code section 1250, subdivision (a)(1), which allows admission of a hearsay statement when the declarant's statement of his or her then existing state of mind “is itself an issue in the action.” (See People v. Hernandez (2003) 30 Cal.4th 835, 872 [“A murder victim's fear of the alleged killer may be in issue when the victim's state of mind is directly relevant to an element of an offense”].) Defendant points out that before the trial court ruled on the admissibility of Harvey's testimony relating Kerr's statements, defense counsel indicated that he did not intend to challenge the point that Kerr feared defendant. According to defendant, this rendered Kerr's statements inadmissible because they no longer were “an issue in the action, ” as required by Evidence Code section 1250, subdivision (a)(1).

         Defendant's argument does not succeed. “[A] fact... generally becomes ‘disputed' when it is raised by a plea of not guilty or a denial of an allegation [and] remains ‘disputed' until it is resolved.” (People v. Rowland (1992) 4 Cal.4th 238, 260; accord, People v. Scott (2011) 52 Cal.4th 452, 471.)

         Defendant further argues that Kerr's statements that she feared defendant were inadmissible because defense counsel also offered to stipulate that Kerr told Harvey she was afraid of defendant. Contrary to defendant's assertion, however, the proposed stipulation was not a concession of the fear element of the stalking count and therefore did not remove that issue from dispute. In any event, and as defendant acknowledges, the prosecutor refused the stipulation. It is well settled that a prosecutor generally cannot be compelled to agree to a stipulation if it would diminish the persuasiveness and forcefulness of the prosecution's case. (People v. Rogers (2013) 57 Cal.4th 296, 329; People v. Edelbacher (1989) 47 Cal.3d 983, 1007.) Defendant argues nonetheless that the trial court's refusal to force the prosecutor to accept the stipulation was error under Evidence Code section 352. He relies on Old Chief v. United States (1997) 519 U.S. 172 for support, but that decision reaffirms the general rule that “the prosecution is entitled to prove its case free from any defendant's option to stipulate the evidence away.” (Id. at p. 189.) The general rule must bend, the high court explained, “when the point at issue is a defendant's legal status [as a convicted felon], dependent on some judgment rendered wholly independently of the concrete events of later criminal behavior charged against him.” (Id. at p. 190.) Defense counsel's proposed stipulation concerned evidence from which the jury could draw the inferences necessary to reach its verdict on the stalking count; it did not concern defendant's status as a convicted felon. Old Chief's exception to the general rule is not applicable here.

         Nor does defendant persuade that the trial court's failure to compel the prosecutor to accept the proposed stipulation violated his right to due process. He argues that although Kerr's hearsay statements were not admitted to prove the murder charge, there was a significant risk the jury would conclude defendant premeditated the murder based on those statements. As explained post, at page37, however, any inadequacy in the court's limiting instructions could not have prejudiced defendant.

         Equally meritless is defendant's assertion that the admission of Kerr's statements violated the confrontation clause, as interpreted in Crawford v. Washington (2004) 541 U.S. 36. As defendant recognizes, the confrontation clause is implicated only when testimonial statements are involved. (Id. at p. 51.) Kerr's statements to her friend Harvey were clearly nontestimonial in nature and therefore fell outside the reach of confrontation clause protections. As Crawford itself explained, the confrontation clause addresses the specific concern of “[a]n accuser who makes a formal statement to government officers” because that person “bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” (Ibid.; accord, People v. Cage (2007) 40 Cal.4th 965, 991; see People v. Griffin (2004) 33 Cal.4th 536, 579-580, fn. 19 [statement made to a friend at school does not constitute “ ‘testimonial hearsay' ” under Crawford].)

         We likewise reject defendant's argument that the trial court erred by admitting Kerr's statements that defendant had threatened to kill her. Defendant asserts that these statements could not be admitted under the state-of-mind exception in Evidence Code section 1250 because they showed defendant's state of mind, not Kerr's. Defendant's argument does not succeed, however, because the statements in question were not being admitted for their truth; that is, they were not presented to prove that defendant intended to kill her or thought about killing her. Rather, Kerr's statements that defendant had threatened to kill her were relevant circumstantial evidence that she was afraid of defendant. (People v. Green (1980) 27 Cal.3d 1, 23, fn. 9; People v. Ortiz (1995) 38 Cal.App.4th 377, 389-390.) Because the statements were being offered for a nonhearsay purpose, they fell outside the reach of Evidence Code section 1250 and other exceptions to the hearsay rule. The trial court found that evidence of defendant's threats to Kerr were admissible under the hearsay exception for admissions by a party opponent (Evid. Code, § 1220), rather than as statements not being offered for their truth. Although this analysis is different from ours, we have explained that “ ‘we review the ruling, not the court's reasoning and, if the ruling was correct on any ground, we affirm.' ” (People v. Zamudio (2008) 43 Cal.4th 327, 351, fn. 11.)

         Defendant relies on People v. Lew (1968) 68 Cal.2d 774, to support his argument that Kerr's out-of-court statements relating defendant's threats to kill her were inadmissible because they amounted to double hearsay that concerned defendant's state of mind, not Kerr's. For several reasons, however, the reasoning in that case does not assist defendant. In Lew, although the court determined that the murder victim's out-of-court statements that the defendant had threatened to kill her were relevant to an issue raised by the defense, the evidence was deemed inadmissible, in part, because the statements referred to the defendant's past acts, rather than threats of future conduct. (Id. at pp. 779-780.) But the decisional basis for excluding the evidence for that reason, People v. Hamilton (1961) 55 Cal.2d 881, 893, appears to have been largely undermined by the later enactment of the Evidence Code. Under the Evidence Code, trial courts were granted broad discretion to determine in every case whether the need for the state-of-mind evidence outweighed the danger of misuse by the jury. (See People v. Ortiz, supra, 38 Cal.App.4th at pp. 387-389; 1 Witkin, Cal. Evidence (5th ed. 2012) Hearsay, § 211, pp. 1070-1071.) The other basis for exclusion in Lew was that the victim's statements were made under circumstances indicating they were probably not trustworthy. (Lew, at pp. 779-780.) We observe, again, that Lew preceded enactment of the Evidence Code, and that the codified state-of-mind exception does not mention independent indicia of trustworthiness as part of the required foundation. Here, moreover, nothing in the record contradicts the trial court's determination that Kerr's statements to Harvey and her other friends were trustworthy. This is not a case like Lew, in which the victim may have claimed that the defendant had threatened her as a pretext for explaining to a college professor why she had missed a midterm examination. (Id. at p. 780.)

         Finally, we find no merit in defendant's argument that Kerr's out-of-court statements should have been excluded as more prejudicial than probative under Evidence Code section 352. In People v. Green, supra, 27 Cal.3d 1, this court held that the trial court erred when it allowed the prosecution to present the murder victim's statements that the defendant said “he would kill her if she left him.” (Id. at p. 23.) In Green, the victim's statements were relevant as circumstantial evidence that she was in fear of the defendant on the morning of the murder and would not have left with him willingly. We concluded, however, that the evidence was improperly admitted because the trial court failed to determine that the risk of undue prejudice from the evidence was outweighed by its probative value. (Id. at p. 26.) Although a “trial judge need not expressly weigh prejudice against probative value - or even expressly state that he has done so” (People v. Mickey (1991) 54 Cal.3d 612, 656), here, the trial court specifically considered the prejudicial impact of the evidence in question and reasonably determined that the prejudice was outweighed by the substantial probative value of the evidence with regard to the fear element of the stalking charge. The court properly exercised its discretion and its ruling fell well within the bounds of reason.

         2. Adequacy of the court's limiting instructions

         Defendant contends that even if Kerr's out-of-court statements were relevant to the fear element of the stalking charge, the court abused its discretion in admitting them, and their admission deprived him of his constitutional rights to due process, jury trial, and a reliable fact finding process, because the court's limiting instructions were not adequate to prevent the jury from using the evidence as proof of first degree premeditated murder. In defendant's view, it was impossible for the jury to have limited its consideration of Kerr's statements solely to the stalking charge, and he asserts that this evidence was used by the prosecution to convince the jury that he premeditated the murder.

         We need not resolve whether the court's limiting instructions did not sufficiently protect against the jury's improper use of Kerr's statements that she feared defendant. Even if the instructions were inadequate, the error was harmless under any standard of review because the evidence of premeditation, including defendant's own statements, was extremely strong. For example, several months before Kerr's death, defendant told his plumbing assistant Heiserman that he wanted to get Kerr “off his mind” by blowing up her car or setting it on fire. Defendant also told Heiserman, closer in time to the killing, that were Kerr to refuse to leave her family for him, he “wouldn't be able to live with it or be able to see her, ” and again mentioned blowing up her car. Premeditation was further shown by strong circumstantial evidence, including the secluded location of Kerr's burning car and evidence showing that defendant poured accelerant over Kerr and the inside of her car, stuffed a burning rag into the gas tank and, when that did not ignite the accelerant, lit a rolled-up piece of paper on fire and threw it inside the car to set it ablaze.

         4. Admission of defendant's threats against Kerr's husband

         Defendant's fellow AA member Mark Harvey testified for the prosecution. At one point while he was on the witness stand, the court excused the jury and conducted a hearing to decide the admissibility of Harvey's expected testimony regarding a lengthy conversation he had with defendant about seven months before Kerr's death. Harvey testified at the hearing that, during their conversation, defendant disclosed that he was having an affair with Kerr, who was married and living with her husband at the time. According to Harvey, defendant made threats against Kerr's husband, saying he wanted to stab him or get rid of him.

         Defense counsel objected to the anticipated testimony, but it was the court that articulated the basis of the objection, asking counsel if his position was that the evidence of the threat should be excluded as more prejudicial than probative under Evidence Code section 352 because the threat was directed at someone other than Kerr. Although counsel indicated that the court had correctly stated the basis of the defense objection, the court was not persuaded by the argument and overruled the objection. In the court's view, the probative value of the evidence - that months before Kerr's death, defendant had told Harvey he wanted to kill Kerr's husband - substantially outweighed its prejudicial impact. In accordance with the court's ruling, Harvey testified that defendant told him that he wanted to stab Kerr's husband or “get him out of the picture.”

         Defendant contends the court erred in admitting this evidence. The evidence was inflammatory, he asserts, because it involved death threats. And it lacked probative value because the threat was uttered some seven months before Kerr's death, which meant it had no relevance to whether defendant had killed Kerr in the heat of passion.

         The People assert that defendant cannot raise such grounds for exclusion under Evidence Code section 352 because defense counsel did not present these particular objections to the trial court during the hearing on the admissibility of the evidence. This court has explained that an objection must “ ‘fairly inform the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling.' ” (People v. Geier (2007) 41 Cal.4th 555, 609; see Evid. Code, § 353, subd. (a) [a judgment cannot be reversed on the basis of erroneously admitted evidence unless the defendant made a timely objection that “make[s] clear the specific ground of the objection or motion”].) The People's call for forfeiture is not well taken here, however, because the record indicates that the grounds for exclusion defendant now advances on appeal were before the court at the time of its ruling. In response to defense counsel's objection to the evidence, the prosecutor pointed out that the evidence of the alleged threats would show that seven months before Kerr's death, defendant was contemplating the notion of homicide and violence in connection with his relationship with her. As the prosecutor argued, such evidence was highly relevant to the issues of defendant's intent to kill and premeditation, particularly because the defense theory was that defendant killed during an explosion of rage. Although the court's articulation of the defense position emphasized that the alleged death threats were directed at someone other than Kerr, the court also would have considered the prosecutor's points, which fairly included a response to the basis for exclusion of the evidence that defendant presents for our review. Defendant's arguments are properly raised here.

         Although we conclude that defendant has not forfeited his claim of error, we nonetheless reject his contention that the court abused its discretion in admitting Harvey's testimony that defendant told him he wanted to stab Kerr's husband and “get him out of the picture.” The evidence was highly probative of defendant's frustration with the affair and Kerr's attempt to reconcile with her husband. It also was relevant to show the progression of defendant's growing obsession with Kerr, which included contemplating violence or even homicide against someone who was coming between him and Kerr. Defendant argues that the evidence was too remote to be relevant to whether he made a spur-of-the-moment decision to kill while in the heat of passion. But this argument ignores the relevance of the evidence with regard to the other theory of homicide, that defendant premeditated and deliberated Kerr's killing. And, contrary to defendant's assertion, evidence of a death threat against a person other than Kerr was not unduly prejudicial in that it suggested to the jury that he would have killed other people if necessary to get to Kerr. The evidence was more probative than prejudicial in that it showed both that defendant wanted Kerr's husband “out of the picture” because he was obstructing defendant's relationship with Kerr, and the extent of defendant's obsession with Kerr.

         Rulings under Evidence Code section 352 come within the trial court's broad discretion and will not be overturned on appeal absent a showing of an abuse of that discretion. (People v. Clark (2016) 63 Cal.4th 522, 586.) On this record, we conclude that the court did not abuse its discretion in rejecting defendant's Evidence Code section 352 challenge to the admission of evidence of defendant's threats against Kerr's husband.

         5. Exclusion of defense evidence

         Defendant asserts that the court erred in sustaining the prosecutor's objections to defense evidence and questioning, and that the individual and cumulative impacts of the court's rulings deprived him of his state and federal constitutional rights to due process, fair trial, jury determination of the facts, and meaningful cross-examination. We conclude to the contrary that none of the rulings in question amounted to prejudicial error, under either state law or the state or federal Constitutions.[2]

         a. Harvey's relationships with other women

         During opening statements, defense counsel remarked that the jurors would hear testimony by prosecution witness Mark Harvey, who had spent time with Kerr at his home on the night of her death. According to counsel, several months before the killing, defendant observed Kerr becoming even closer to Harvey, which was “tremendously upsetting” to him. Counsel described Harvey as a “very nice looking guy” who “spends a lot of time at the Alcoholics Anonymous Club, dating women [who] are trying to recover from their problems with their alcohol and drugs.”

         Shortly after the parties' opening remarks, but outside the jury's presence, the prosecutor indicated to the court that he intended to move in limine to exclude evidence of Harvey's bad character to which defense counsel had alluded during opening statement, specifically, evidence regarding Harvey's sexual relationships with other women. The court conducted a hearing on that motion immediately before Harvey was set to testify in front of the jury. Harvey stated at the hearing that he had been attending AA meetings for the past 20 years and that during that time he had formed romantic relationships with four women, but Kerr was not one of them. In ruling on the motion, the court indicated that evidence regarding a relationship between Kerr and Harvey was relevant to whether defendant killed Kerr in the heat of passion. In the court's view, however, evidence of Harvey's sexual conduct with women other than Kerr, was “totally irrelevant” to proving the existence of that relationship. Defense counsel argued that evidence regarding Harvey's proclivity for “hitting on” women at the AA Club would support the defense theory that defendant believed Harvey and Kerr were romantically involved, which would provide the basis of the provocation for the heat of passion defense. The court was not persuaded and reiterated that it would not allow evidence regarding other sexual or romantic relationships that Harvey may have had with the unnamed women. The court explained that, under Evidence Code section 352, the prejudicial impact of such evidence - that is, the undue consumption of time required for its presentation - far outweighed any probative value.

         Defendant insists that the court erred in excluding evidence that Harvey had engaged in sexual relationships with women he met through his involvement in AA because such evidence was relevant to the reasonableness of defendant's belief that Harvey and Kerr were having a sexual relationship and was therefore fundamental to his heat of passion defense. As mentioned previously, the court found evidence that Harvey engaged in romantic relationships with women in AA to be “totally irrelevant.” Although the court reasonably concluded that such evidence had no bearing on whether Harvey and Kerr were romantically involved, the evidence appears to have had at least some relevance to defendant's suspicions in this regard. But even if the court mistakenly characterized the evidence as completely lacking in relevance, the court did not abuse its discretion in excluding it under Evidence Code section 352. The court weighed the arguably slight probative value of evidence regarding Harvey's romantic relationships with four women in AA against the likelihood that its admission would require an “undue consumption of time” (Evid. Code, § 352), and soundly determined that the balance justified exclusion. Contrary to defendant's assertion, the excluded evidence was far from “fundamental” to his heat of passion defense because several witnesses testified that defendant suspected Kerr was having a sexual relationship with Harvey. (Cf. People v. Minifie (1996) 13 Cal.4th 1055, 1070 [concluding that the court erred in excluding evidence of third party threats that went to the “ ‘heart of' ” defendant's claim of self-defense and that would not have required an undue consumption of time].) We conclude that no abuse of discretion occurred.

         b. Kerr's reference to herself as Lisa Brooks

         During cross-examination of Mark Harvey, defense counsel confirmed with the witness that during his conversation with Kerr at his home on the night of her death, she had referred to defendant as “Squirrel Boy.” In response to further questioning, Harvey indicated that Kerr did not use that name in defendant's presence. When counsel then asked Harvey whether he knew that Kerr had been calling herself “Lisa Brooks” as opposed to Lisa Kerr, the prosecutor objected on relevance and hearsay grounds. The court sustained the objection without comment, at which point defense counsel indicated he had no further questions and concluded his cross-examination.

         Defendant argues that the court's ruling was in error because the fact Kerr referred to herself using defendant's last name, rather than her married name, was not being admitted for its truth, but rather to show her state of mind and thereby to rebut the prosecutor's evidence that Kerr feared defendant.

         Counsel made no offer of proof and advanced no argument to counter the prosecutor's relevance and hearsay objections to his cross-examination, and the trial court did not explain the basis of its ruling sustaining the objection. We conclude therefore that defendant has forfeited his claim of error. Even were we to assume that the court abused its discretion in preventing counsel from pursuing the challenged line of questioning, however, any error was harmless because Kerr's use of the name Brooks was independently established. The parties stipulated at trial that defendant signed a rental agreement with the names “Donald Brooks and Lisa Brooks” for an apartment in which Kerr lived. And defendant's acquaintance, Kari, testified that defendant showed him a piece of paper with “Lisa Brooks” written on it. The defense also called a number of witnesses who testified to the effect that Kerr did not fear defendant. For example, Sheila Peet told the jury that Kerr seemed happy and excited when she was around defendant. On this record, even if the court erred in precluding defense counsel from asking Harvey whether he was aware Kerr had been referring to herself as “Lisa Brooks, ” the ruling did not prejudice defendant.

         c. Defendant's receipt of a package containing women's panties

         As previously mentioned, the defense called several witnesses in an attempt to show that Kerr was not fearful of defendant, but rather that she was happily involved with him. Over the prosecutor's objection, Yreno Lujano testified that defendant played for him several telephone messages that Kerr had left on defendant's answering machine telling defendant that she loved him and missed him, and thanking him for helping her with her lawyer. However, the court did not permit defense counsel to elicit from Lujano that he had seen defendant open a package he had received in the mail that contained a pair of women's panties. In the court's view, this evidence could not support a reasonable inference regarding Kerr's state of mind because it lacked sufficient foundation that Kerr was the person who had sent the package to defendant. In so ruling, the court rejected defense counsel's argument that Lujano's statement that he saw defendant open a package that had panties inside, standing alone, would support an inference that the panties had come from Kerr. Defendant claims that the court erred in excluding this evidence.

         The relevance, and thus the admissibility, of the evidence in question depends on the existence of the preliminary fact that Kerr was the person who mailed a pair of panties to defendant. Defendant, as the proponent of the evidence, bore the burden of producing evidence in support of that preliminary fact. (Evid. Code, § 403, subd. (a).) When, like here, the evidence at issue concerns the “conduct of a particular person and the preliminary fact is whether that person... so conducted [herself], ” the evidence is inadmissible “unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact.” (Evid. Code, § 403, subd. (a)(4).) We have explained that the trial court's role with regard to preliminary fact questions under Evidence Code section 403, subdivision (a), “ ‘is merely to determine whether there is evidence sufficient to permit a jury to decide the question.' ” (People v. Lucas (1995) 12 Cal.4th 415, 467.) The determination regarding the sufficiency of the foundational evidence is a matter left to the court's discretion. (Id. at p. 466.) Such determinations will not be disturbed on appeal unless an abuse of discretion is shown. (People v. Tafoya (2007) 42 Cal.4th 147, 165; People v. Cornwell (2005) 37 Cal.4th 50, 83-84.)

         The defense was entitled to rebut the prosecution's evidence that Kerr feared defendant, which supported the stalking charge, with evidence that Kerr did not fear him. Evidence that Kerr had sent defendant a pair of panties in the mail might tend to show she was not afraid of him. The preliminary fact necessary to permit Lujano's testimony that he saw defendant open a package that contained women's panties was that Kerr was the person who sent them. This fact may be established by circumstantial evidence. (See People v. Coddington (2000) 23 Cal.4th 529, 591; see also Evid. Code, §§ 1415-1421 [specifying some of the types of circumstantial evidence that may authenticate a document].)

         Defendant argues that the court erred in excluding Lujano's testimony regarding defendant's receipt of the package because the undisputed fact that defendant and Kerr were involved in a sexual relationship, when coupled with evidence defendant had received a package of panties in the mail, was sufficient to allow the jury to infer that the package had come from Kerr. The People counter that the defense produced no evidence that would adequately support such an inference.

         Here, the court ruled it would permit Lujano to testify that on several occasions during the period of defendant's relationship with Kerr, defendant played for him tape-recordings of answering machine messages left by Kerr telling defendant that she loved him. The court also allowed Lujano to testify that during this same period, defendant showed him love letters from Kerr. Defendant's receipt of the package presumably occurred close in time to the messages and love letters. From this evidence the jury arguably might have been able to decide that it was Kerr who had sent the package that Lujano saw defendant open.

         We need not decide, however, whether the court erred in excluding Lujano's testimony regarding the package of panties because even if the evidence in question should have been allowed, there is no reasonable probability defendant would have obtained a more favorable result had it been admitted. (People v. Bacon (2010) 50 Cal.4th 1082, 1104, fn. 4 [applying prejudice standard for state law error under People v. Watson (1956) 46 Cal.2d 818, 836, to assess effect of error in excluding evidence for lack of foundation].) As discussed above, the purpose of the proffered evidence was to show that Kerr did not fear defendant. The record shows, however, that the defense elicited strong evidence both during cross-examination and the defense case itself to make that point. For example, as noted earlier, prosecution witness Dwayne Kari testified that defendant played for him a tape-recorded message that Kerr had left on defendant's answering machine that said, “All I can say about last night was ‘yummy.' ” Kari also testified that defendant showed him a piece of paper on which Kerr had written “Lisa Brooks.” Other evidence suggested that Kerr had willingly accepted defendant's offer of financial assistance, including his signing an apartment rental agreement for her that named “Donald Brooks and Lisa Brooks” as the tenants. And defense witness Jody Wheeler, a bartender at the bar where defendant often joined his father for lunch, testified that Kerr would often ...


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