IN THE SUPREME COURT OF
CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
v.
THEODORE CHURCHILL SHOVE III,
Defendant and Appellant.

S161909

Los Angeles County Superior Court
BA271293

August 13, 2026

Justice Kruger authored the opinion of the Court, in which
Chief Justice Guerrero and Justices Corrigan, Groban, and
Earl* concurred.

Justice Evans filed a dissenting opinion, in which Justice Liu
concurred.

*
Administrative Presiding Justice of the Court of Appeal,
Third Appellate District, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
 PEOPLE v. SHOVE
S161909

Opinion of the Court by Kruger, J.

A jury convicted defendant Theodore Churchill Shove III
of the first degree murders of Hubert and Elizabeth Souther.
(Pen. Code, § 187, subd. (a).) The jury also found Shove guilty
of second degree commercial burglary (Pen. Code, § 459),
receiving stolen property (Pen. Code, § 496, subd. (a)), and three
counts of sending a threatening letter for extortion (Pen. Code,
§ 523). The jury found true multiple murder (Pen. Code, § 190.2,
subd. (a)(3)) and murder-for-financial-gain (Pen. Code, § 190.2,
subd. (a)(1)) special-circumstance allegations. At the penalty
phase, the jury fixed the punishment at death. The trial court
denied Shove’s motion for a new trial and automatic motion to
modify the death verdict and entered a judgment of death.
This appeal is automatic. (Pen. Code, § 1239, subd. (b).)
We affirm the judgment in its entirety.
I. FACTUAL BACKGROUND
The prosecution presented evidence that Shove
masterminded a murder, burglary, and extortion scheme in a
ploy to obtain a business owned and operated by the Souther
family. The scheme included hiring a friend to kill Hubert and
Elizabeth Souther, thereby transferring control of the business
to the couple’s adult children; burglarizing the business’s safe;
and then, under a false identity, attempting to extort money
from the children.

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Opinion of the Court by Kruger, J.

A. Guilt Phase
1. Prosecution Case
a. The Souther Family and Cal Aero
Hubert Souther founded Cal Aero, an aerospace surplus
hardware business, in 1975. At the time of their killing in 2001,
Hubert and his wife, Elizabeth,1 were 79 and 81 years old,
respectively.
The Southers’ daughters, Collette Kingsley and Allison
Renck, each owned a 26 percent interest in Cal Aero, held
company titles, and received regular paychecks. Collette’s
husband, Christopher Kingsley, was a manager at Cal Aero.
Allison and her husband, Kenneth Renck, had operated a
satellite Cal Aero store in Murrieta.
William Vann was Cal Aero’s president. Hubert kept
large sums of cash, valuables, and important documents in a
safe located in Cal Aero’s lunchroom area and would sometimes
give Vann up to $25,000 from that safe to buy merchandise for
the business at auction.
b. The plan to purchase Cal Aero
Stanley Steves was the owner of a salvage business,
Industrial Salvage. Steves met Shove in 1984 and they
remained friends over the years; in 2000, Shove began assisting
Steves with matters at Industrial Salvage, although Shove was
never employed by or on the payroll of, nor did he hold a title at,
Industrial Salvage. Approximately six months before the
Southers’ murder, Shove began expressing to Steves an interest
in purchasing Cal Aero.

1
For clarity, persons sharing the same surname will be
referred to by their first names.
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Opinion of the Court by Kruger, J.

Steves knew both Hubert and Vann. In 1984, Steves met
Hubert and the two maintained a business and social
relationship until Hubert’s murder. Steves and Vann had
known each other for about 10 years through their respective
business dealings. In 2000 or 2001, Steves introduced Shove to
Vann. Shove immediately and frequently thereafter expressed
interest in buying Cal Aero and it became a topic of conversation
every time Shove and Vann spoke. Shove spearheaded efforts
to purchase the business and asked Steves to be his partner.
When Vann asked how he would get the money to buy Cal Aero,
Shove told Vann that money was not an issue, and that Shove
could get money from the “mafia” to purchase Cal Aero.
Shove, Steves, and Vann were all acquainted with Jack
Reiland and Monte Proulx, who were principals of Deft Kemp, a
company that did business similar to Cal Aero. The five men
met multiple times to discuss the possibility of forming a
company to purchase Cal Aero. Vann testified that Shove
“became more obsessed” with purchasing Cal Aero over time.
Just before the murders, Shove would call Vann almost every
day and express his desire to obtain the company.
Witnesses testified that Shove was both persuasive and
intimidating. As discussed below (see pt. II.D, post), Shove
would regularly use the alias “Tony Bonanno” and reference his
purported connections to the mafia, though there was no
evidence that Shove was connected to organized crime. Vann
testified that when Shove referred to Monte Proulx, Shove
would reference “Monte’s Army,” which Shove claimed was a
group of Mexican nationals who would perform clandestine
operations in the United States using “night scopes” and “high-
caliber weapons.” Shove told Vann “that they were his enforcers

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Opinion of the Court by Kruger, J.

and that they would take care of any kind of problems or people
or jobs he needed done.”
Testimony differed over whether Hubert was interested in
selling Cal Aero. Both Collette, one of the Southers’ daughters,
and B.G., the Southers’ attorney, denied that Hubert had
expressed any intent to sell the business, while Steves and Vann
testified that Hubert was entertaining the thought. Shove told
Vann that it would not be a problem if Hubert would not sell Cal
Aero because Shove already had a deal with Allison and
Kenneth, the Southers’ other daughter and her husband, who
Shove knew to be major shareholders.
Allison’s and Kenneth’s daughter testified that about one
week before her grandparents were murdered she answered a
call on the house phone at around 5:00 p.m. from a person who
identified himself as “Mike Powers.” The man stated that he
wanted to speak to Allison about buying Hubert’s business.
Records established that Shove called the Renck residence’s
land line telephone at 5:49 p.m. and 7:01 p.m. on September 9,
and twice again on the afternoon of September 13. The Rencks’
daughter testified that her mother did not return the call
because “it was just kind of ridiculous because we knew my
grandpa wouldn’t sell the business.”
c. The Southers’ murders
On Monday, September 17, 2001, Hubert and Elizabeth
were discovered bludgeoned to death in their bed. Evidence
indicated that Shove’s friend, Lewis Hardin, was the killer.2

2
Hardin was jointly tried with Shove and also convicted of
the murders, and the jury found true the murder-for-financial-
gain and multiple-murder special-circumstance allegations.

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Opinion of the Court by Kruger, J.

Shove and Hardin met in 2000 or 2001. Hardin socialized
at Shove’s house and sold him cocaine. Hardin’s girlfriend
testified that Hardin did not have a regular job in 2001; Hardin
told her he had a job with Shove but did not explain further.
About one week before the murders, the Southers’ home
was broken into through the side kitchen door’s window and
money was stolen from Hubert’s pants. The house had an
operable alarm system, and the Southers’ daughters urged their
parents to set it, but they generally would not because of their
cats. The Southers did not report the incident to the police.
Vann testified that a week before the murders, Shove told
him that he had participated in what Shove called a “dry run”;
Shove related that he and somebody else had burglarized
Hubert’s house through the side door to “send a message to the
old man.” Shove stated they had parked on the street above the
house and Shove waited in the car while his unnamed
accomplice went through a neighbor’s backyard and into the side
of the house. Shove told Vann, “[T]hat should be enough to have
[Hubert] sell the business to [Shove].”
The Southers were last seen alive at their home at
approximately 4:30 p.m. on Saturday, September 15, 2001. On
the morning of Monday, September 17, Shove called Vann
several times and told him to “expect some good news.” Concern
arose when Hubert did not show up to Cal Aero that morning
and calls to the Souther residence went unanswered. Collette
went to the house to check on her parents and noticed that the
glass on the side kitchen door was broken and the door was ajar.
Collette entered the house, called out for her parents, and

(Pen. Code, § 190.2, subd. (a)(1), (3).) At the penalty phase, the
jury fixed Hardin’s punishment at life in prison without the
possibility of parole.
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discovered them lying on their bed, covered in blood. Collette
immediately knew they were dead.
The side kitchen door had pry marks and appeared to be
the entry point. There was blood on and around the door, and a
trail of blood went from the door out towards the rear of the
property, along the pool, and to a back wall, where a bloody
handprint and other bloodstains were discovered. The other
side of the wall was an ivy-covered slope abutting the street that
appeared to have been walked through. The phone line had
been disconnected at the phone box located on the back of the
house. No valuables were taken from the residence.
Testing revealed that Hardin’s DNA matched blood
samples taken from the kitchen and living room floors, outside
the kitchen door, and the backyard. None of the blood samples
from the scene matched anyone other than Hardin or the
Southers. Hardin’s girlfriend testified that Hardin left for a few
days sometime between September 11 and the end of the month,
and when she saw him again, he had a deep cut on the palm of
his right hand; Hardin refused to seek medical attention.
Hardin told his girlfriend it was none of her business, to forget
what she saw, and to make sure nobody was following her.
When Hardin was arrested for the murders three years later,
scarring was observed on his right palm.
The Southers had sustained blunt force injuries, including
skull fractures and multiple lacerations and abrasions to the
head and face, consistent with having been struck with a tire
iron, an impression of which was found on the bedspread.
Hubert had potential defensive injuries to his hands. Hubert’s
cause of death was blunt force trauma to the head; Elizabeth’s
cause of death was the combined effect of blunt force trauma to
the head and asphyxiation by smothering. It could not be

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determined whether there was more than one perpetrator or
weapon. The medical examiner estimated that the Southers
died sometime between 10:00 p.m. on Saturday, September 15,
and 2:00 a.m. on Sunday, September 16. The Saturday
newspaper was disassembled on the back patio counter, but the
Sunday and Monday newspapers were undisturbed on the
driveway.
Phone records reflected numerous calls between Hardin
and Shove on September 14 through 16. Shove called Hardin
eight times throughout the day on the Friday before the
murders. Between 3:16 p.m. and 9:16 p.m. on Saturday,
September 15, Shove placed six calls to Hardin’s residence.
There were no calls between the two for almost three hours
thereafter until midnight, when Hardin called Shove from his
cell phone seven times between 12:00 a.m. and 1:33 a.m. on
Sunday. Hardin also used his cell phone to call his home at
1:41 a.m. and 4:21 a.m. Hardin again called Shove from his cell
phone at 4:24 a.m., and from 7:12 a.m. to 11:54 p.m., Shove and
Hardin called each other 19 times throughout the day.
Shove indicated to Vann that he was involved in the
murders, stating that “they” did the “dry run” the same way they
did the murders, though Shove never named who else was
involved. Shove told Vann that he parked his car above the
Souther residence but did not go inside. Shove did not express
any remorse and told Vann that “the old man . . . deserved it.”
Sometime after Hardin’s girlfriend saw the cut on his
hand, she overheard Hardin talking to Shove on the telephone;
Hardin was upset and asking when he was going to be paid. In
October, Hardin’s girlfriend overheard an argument at their
apartment during which Hardin asked Shove about money and
Shove said “not yet” because he “had to go” or “had to send”

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Opinion of the Court by Kruger, J.

somebody to “clean your fucking mess.” Sometime after the
murders, Shove’s wife heard a voicemail message Hardin left on
Shove’s phone “demand[ing] his money” and threatening “to go
to the sheriff and tell them what he knew” if he did not get it.
Also after the murders, Shove’s daughter listened in on a phone
call between Shove, Hardin, and someone Hardin identified as
his cousin who said, “we had a deal” and “you’re constantly late
with your end of it.” Shove responded, “you better remember
who you’re talking to,” and “if I said it’s going to be there, it’s
going to be there.” On two occasions after the murders, Shove’s
daughter delivered sealed envelopes to Hardin at her father’s
request.
d. Cal Aero safe burglary
The day after the victims’ bodies were discovered, the safe
in the Cal Aero lunchroom was burglarized.
During the month preceding the murders, Shove asked
Vann information about the Cal Aero safe and expressed his
belief that there was gold stored inside. Vann provided the
name and “probably” the serial number of the safe and told
Shove that he believed it contained $100,000 and jewelry. Vann
testified that Shove called him five or six times the day the
murders were discovered and told Vann that night would be the
best time to break into the safe “before the kids could get into
it.” Phone records established that Shove called Vann numerous
times throughout that day. Vann told Shove that he had other
commitments and that the Southers had been murdered, to
which Shove had “no reaction at all.”
On Tuesday, September 18, Collette, Allison, and their
spouses went to Cal Aero and inventoried the items in the safe.
Both daughters had the combination. They removed Hubert’s
coin collection, $1,900 in cash, and some other personal
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Opinion of the Court by Kruger, J.

property, while important documents were returned to the safe.
That day, Shove again called Vann insisting they break into the
safe that night. Vann met Shove, Steves, and Proulx at a
restaurant and explained that the Souther children had already
emptied the safe, but Shove stated, “ ‘there’s no way they could
have got all of it,’ ” and that he was “ ‘after something else that’s
in there.’ ” Vann was ultimately persuaded to participate in the
burglary. Steves testified it was discussed that Vann would
assist Shove and Proulx in getting into Cal Aero, and Steves
excused himself from the conversation because he did not want
to be involved.
Vann, Shove, and Proulx arrived at Cal Aero at
approximately 5:15 p.m. that night. Shove opened the back door
with a key and Vann helped carry some equipment inside before
leaving; Vann did not know why Shove had a key to Cal Aero.
Vann later returned and helped Shove and Proulx carry out
tools; Shove told Vann the safe was empty except for some
papers. Steves also testified that Shove told him that they had
burglarized the safe, but it was empty. The next day, the safe
was discovered empty; the bottom of the safe had been cut and
all documents left in the safe, including Elizabeth’s will, were
missing.
e. Extortion plot
A few days after the murders, Shove called the Southers’
attorney, B.G., and said that he had been negotiating with
Hubert about purchasing the business and that he would like to
continue doing so. B.G. told Shove that he knew nothing about
that but to submit something in writing at the appropriate time
and B.G. would present it to the Souther daughters. A few days
later, B.G. received a proposal in the mail to purchase Cal Aero
for $4 million. The letter had Industrial Salvage’s return
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Opinion of the Court by Kruger, J.

address, was signed by Shove, and stated that Steves of
Industrial Salvage and Reiland of Deft Kemp had been
discussing the terms of a sale with Hubert, and that they still
wished to proceed with their offer. Steves testified that this was
not a true statement and that he had not authorized Shove to
send the letter. On October 4, B.G. spoke to Shove on the
telephone, who stated that he was prepared to offer $5 million,
but B.G. told Shove he believed Cal Aero to be worth at least
$6.5 to $7 million.
Shove expressed his intent to continue pursuing the
purchase of Cal Aero, telling Vann “that he had $100,000
invested in this at this point and that he wasn’t going to let it
go.” Shove told Vann that Shove “was going to have something
on [Kenneth]” and would have his wife “Allison over a barrel and
that she would sell it to him or do anything that he wanted her
to do.”
About a week after the murders, Shove called Vann and
told him “to watch for the mail” and to report back on any
reaction of Christopher, Collette’s husband. On September 24,
Christopher received a letter at Cal Aero addressed to “Kenny,
Owner, Cal Aero,” which read: “Kenny [¶] You hired me. You
gave me my first money. I did the first job. You know I did the
job. I did the second job but my owed money wasn’t there. [¶]
This is proof I did the second job. Your guy didnt get the key to
me til after midnight an still I got the job done. [¶] Leave a
message at the springs number. [¶] Pay me my money.”
Enclosed with the letter was the first page of Elizabeth’s will.
Vann told Shove he observed Christoper run upstairs with a
piece of mail; Shove told Vann that he sent the mail “to extort
the family into selling [Shove] the business.”

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Shove owned a white Toyota 4Runner, and his wife
testified that they let Proulx borrow it sometime in 2001 and
that it was sometimes kept at Industrial Salvage. On October 9,
a neighbor who shared a property line with the Rencks observed
a white SUV drive into her driveway and spoke with the sole
occupant, who identified himself as “Mike Powers” and stated
that he was interested in real estate in the area. The neighbor
later identified this man as Proulx from a photo lineup. The
neighbor allowed Proulx to drive to the top of the property where
there was a view of the area. Around 10:00 a.m. the next day,
the neighbor again observed Proulx driving the SUV, the two
spoke again, and Proulx again drove to the top of the property
where he remained for about 20 minutes.
On October 10, Allison and Kenneth went to Cal Aero to
meet with B.G. and the company’s accountant; B.G. discussed
Shove’s offer letter. While the Rencks were at this meeting,
Kenneth’s mother went to the Renck residence and observed a
white 4Runner backed up to the Rencks’ open garage door. She
noted the vehicle’s license plate number, which matched Shove’s
vehicle.3 Kenneth’s mother spoke with a man walking out of the
garage who identified himself as “Mike Powers” and said he had
a meeting with Kenneth at 2:00 p.m. about exchanging
unregistered firearms. She later identified Reiland, Proulx’s
coprincipal at Deft Kemp, from a photo lineup as the person
most resembling the man she saw that day. She did not
recognize Shove’s or Proulx’s photographs at trial. After the
man left, Kenneth’s mother reported the incident to Kenneth
and the police.

3
A few days before the murders, another of the Rencks’
neighbors observed a white Toyota 4Runner with the same
license plate number in front of the Rencks’ driveway.
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Kenneth went home and met with police; though there
were no signs of forced entry, they discovered footprints by the
fence line at the back of the property. While police were still at
the house, Kenneth received a call from a man who identified
himself as “Mike Powers” and said that Hubert had hired his
boss “to find out who was trying to murder him,” and that his
boss had the killer in custody and did not like the way he had
been paid. The caller also told Kenneth that he had evidence
linking Kenneth to the murder, which the caller would sell to
Kenneth for $300,000. Kenneth’s mother had answered the
phone and testified that the caller’s voice sounded like that of
the man she had encountered earlier.
Vann testified that he was with Shove when Shove
received a phone call from Proulx, who said Kenneth’s mother
had seen him inside the Rencks’ garage. Shove told Vann that
Proulx went to the Renck residence to get what had been
removed from the safe but did not find anything. Vann
overheard Shove say to Proulx: “[Y]ou stupid son-of-a-bitch.
Why did you drive my truck?” Shove told Vann that he would
have to report his truck stolen or have it taken to Mexico, and
that Vann would be his alibi. Shove also told Vann that Shove
was going to put more pressure on the Souther children, that he
already had a deal with them, and that he intended to obtain
the business.
On October 18, “Mike Powers” again called the Renck
residence. The caller asked to speak with Kenneth and told
Allison that he had pictures of Kenneth and Allison paying
$50,000 to the hitman who killed the Southers. The caller said
the evidence would be sent to the district attorney if he could
not see Kenneth that night.

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Sometime after the murders, Shove asked his daughter to
report his 4Runner stolen, but she refused because she was not
the owner and had seen the vehicle a couple of days before. On
October 24, Shove reported to police that his 4Runner had been
stolen from the Industrial Salvage lot sometime between
October 20 and 24. The vehicle was discovered 10 months later,
abandoned near the Mexican border in a remote area of San
Diego County. The ignition had not been tampered with, which
was unusual for a stolen car; a key could have been used to drive
the vehicle.
In late October, Christopher received a second suspicious
envelope at Cal Aero addressed to Vann with a return address
to “M. Powers,” postmarked October 26. Christopher thought
the handwriting on the envelope looked similar to the prior
letter. Inside the envelope addressed to Vann was another
envelope addressed to “Mr. & Mrs. Ken Renick [sic] [¶]
Condolences.” Inside that envelope was a lengthy unsigned
typewritten letter addressed to “Detective Martinez”4 that
purported to detail the motive for and commission of the
murders. The letter alleged that Hubert discovered that
Kenneth had been stealing money from the safe and planned to
disinherit the Rencks, and that Kenneth then hired a killer. The
killer allegedly met “one of his employers” at a restaurant and
was paid $50,000 to commit the murder; the killer supposedly
hired a “surveillance specialist” to record and photograph the
meeting “for the killer to use as insurance.” The letter claimed
that the first attempt on Hubert’s life was unsuccessful and that
Hubert then “sent a letter with retainer to our group” to “locate

4
Los Angeles County Sheriff Deputy Joseph Martinez was
one of the lead detectives investigating the murders.
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and neutralize the killer” and discover who had sent him. When
“[w]e” attempted to contact Hubert “on Tuesday, 8 days after the
killer’s first attempt,” Hubert had already been murdered. The
killer was, however, identified and brought to Mexico. The killer
admitted that the Rencks had hired him. The killer also
purportedly cut the bottom of the safe with a grinder, but it was
empty. The killer wrote a letter to Kenneth “demanding to be
paid more money.”
On November 7, Kenneth received an envelope addressed
to “Mr. Ken Renick” with a return address to “Mike” in San
Ysidro. Inside was a letter from “Mike” addressed to “Mr. & Mrs
Ken Renick,” as well as a copy of the above-described letter to
Detective Martinez. The letter claimed that Hubert “retained
our organization to neutralize a threat to his life,” that they had
the killer in custody in Mexico, and that they had evidence that
“clearly indicate[s] the real perpetrators of the contract murder.”
The letter offered to sell this evidence to the Rencks for
$300,000. It concluded: “We can either clear you both by giving
the Detectives leads away from you or give the District Attorney
an irrefutable case. You can choose. We will contact you.”
On November 26, Allison received a call at Cal Aero from
“Mike Powers” who said that “Vann had the gold” and demanded
Allison’s cell phone number; when Allison refused, the caller
said, “[I]t’s your funeral.”
On January 7, 2002, Shove and Steves went to Cal Aero
and asked Allison if they could meet in private. Allison had
known Steves through her father and recalled Shove’s name
from the offer letter. Shove told Allison that Kenneth had called
his cell phone and accused Shove of murdering the Southers.
Allison told Shove that was untrue and that no one in her family
would know his number. Shove and Steves told Allison that

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they were no longer interested in the business. That was the
only time Allison had ever met or discussed Cal Aero with
Shove.
f. Search, interviews, and arrests
As detailed below in part II.A., officers executed a search
warrant on Shove’s home, leading to the recovery of a laptop
computer on which the unsigned letter to Detective Martinez
was stored, and which had been used to print the letter.
Vann admitted that he had lied when police first
interviewed him shortly after the murders and burglary, and
again in January of 2002. In these earlier encounters, Vann did
not mention his involvement in the burglary, nor did he mention
Shove; Vann instead told police that he believed Kenneth may
have been involved. When Vann was arrested for burglary,
extortion, and receiving stolen property on October 6, 2004, he
decided to speak with police on these topics. The authorities and
he agreed that nothing he related concerning the burglary could
be used against him but that he could still be charged for the
murders and extortion. On December 14, 2004, Vann pled
guilty to commercial burglary in exchange for credit for time
served and three years of probation, contingent upon testifying
truthfully.
2. Defense Case
To demonstrate that calls between Hardin and Shove and
demands for payment related to drug transactions, not murder,
the defense presented J.M., who lived at Shove’s house for a few
months in 2001. J.M. knew Shove as Tony Bonanno, and
understood the Bonannos were a mafia family. Shove claimed
that he and some partners were going to purchase Paramount
Studios and promised work in the film industry for J.M. and his

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Opinion of the Court by Kruger, J.

father. Sometime in 2001, J.M. met Hardin and Shove asked
whether J.M. would be able to obtain cocaine from Hardin for
personal use. Thereafter, J.M. acted as an intermediary
between Shove and Hardin on several cocaine purchases before
personally introducing the two. J.M. told a defense investigator
that he hoped Shove did not “have anybody on the outside that
could kill me.”
In an effort to demonstrate that their phone calls at the
time of the murder were consistent with their level of
communication at the time, the defense presented a chart of
phone calls between Hardin and Shove during June, July, and
August of 2001. The chart reflects two calls in June, 74 calls in
July, and 103 calls in August. The vast majority of these calls
occurred between 9:00 a.m. and 10:00 p.m.
The defense presented evidence to rebut the prosecution’s
timeline of events. The Southers’ neighbors testified that at
around 8:30 p.m. on September 15, 2001, their dogs were acting
strange and barking in the direction of the Southers’ house. It
took the defense investigator about an hour to drive from
Hardin’s home to the Souther residence on a Saturday night at
7:30 p.m. with light traffic. The distance from Shove’s house to
the Souther residence was about a 15- to 20-minute drive.
Detectives testified that during the investigation they
learned the Southers’ telephone was not working. Kenneth later
notified them he had fixed the telephone and took them to the
phone box, which would not be noticeable in the dark by anyone
other than the residents or someone familiar with the area.
Vann did not tell police that Shove ever explicitly said that
he was at the murder scene, just that “they” had done the “dry
run” in the same manner as the murders. Vann told police that
he believed “Monte’s Army” had killed the Southers, given

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Shove’s statement that they were his enforcers; Vann also
related his impression that Shove was behind everything. When
police interviewed Vann on September 19, 2001, Vann stated
that he thought Hubert usually kept about $300,000 in the safe.
A Cal Aero employee testified that Vann left work at
3:00 p.m. on the day of the burglary. At around 5:00 p.m., after
everyone had left work for the day, the employee was at a gas
station across the street when he observed Vann drive into the
empty Cal Aero parking lot. Vann got out of his car, looked in
and around two sets of bushes in front of the business, and
jiggled two sets of doors leading into the business and the
upstairs loft. The employee then drove away. Vann was alone,
and the employee did not see Vann meet with anybody.
A Los Angeles County Sheriff’s Department forensic
document examiner testified that she examined the proposal
letter Shove sent to B.G., the letter “Mike” sent to the Rencks,
and the letter addressed to Detective Martinez; there were no
physical characteristics among the letters to indicate that they
came from a common source, nor could a common source be ruled
out.
During the prosecution’s case, Hardin’s girlfriend had
testified that it was cold and raining when she noticed the cut
on Hardin’s hand sometime around the end of September or
beginning of October in 2001. The court took judicial notice that
there was no rainfall in the area from August through October
of 2001.
B. Penalty Phase
1. Prosecution Case
The prosecution presented evidence that Shove had three
prior convictions: a 1979 conviction for making a false

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

statement in a loan application and a threatening telephone
communication, a 1980 conviction for robbery, and a 1988
conviction for theft. As to the robbery conviction, M.V. testified
that he was in the rare coin business and had accompanied a
client to a private residence to authenticate coins the client
planned to purchase. When M.V. entered the residence, two
masked men put guns to his head and escorted him and the
client into the dining room, duct taped their hands behind their
backs, and laid them face down on the floor. Two women were
already bound and on the floor. Shove, the supposed seller, left
with one of the gunmen to cash the client’s cashier’s checks;
$4,000 in cash was taken from M.V.’s pocket.
Shove’s older sister, M.J., testified that during an incident
sometime in the late 1970’s, Shove shoved M.J., cracking three
of her ribs, and repeatedly struck her. Shove also threatened
M.J. via email and middle of the night phone calls and visits.
He told M.J. he was going to kill her. On one occasion in 2000
or 2001, M.J. woke up at 2:00 a.m. and saw Shove outside the
window pointing what appeared to be a gun at her; Shove said,
“[B]ang, you are dead,” and disappeared.
J.H. testified that in 1987 or 1988, he was driving on a
freeway when he tried to enter the same lane as Shove, resulting
in one vehicle cutting the other off. They exchanged obscene
hand gestures, after which J.H. believed the situation to be over.
But when he pulled into a gas station about ten miles later,
Shove approached and pointed a gun to the back of J.H.’s head
and said, “Today is your last day on earth,” or “Today you are
going to die,” and repeatedly called J.H. a racial epithet.
Shove’s ex-wife, C.M., testified that Shove was physically
violent with her during their marriage. When C.M. told Shove
she wanted a divorce, Shove said that he would take C.M. to a

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

rural area, kill her, and bury her body so she would never be
found. On another occasion, Shove strangled and tried to
smother C.M. with a pillow, locked her in the bedroom, and
threatened to “finish [her] off” if she yelled out. C.M. described
Shove as a manipulative liar.
Shove’s third wife, A.M., testified that Shove was
regularly violent toward her, including incidents in which Shove
strangled her, beat her, and tried to run her over with a car.
Shove also threatened to kill A.M. and told her that he knew
how to kill a person.
R.H., Shove’s wife at the time of the murders, testified that
Shove was violent with her “off and on” during their marriage.
Shove once punched R.H. in the nose, causing it to bleed. On
another occasion, Shove pushed her up against a wall and
dragged her by the hair. Shove choked R.H., sometimes lifting
her off the ground against a wall or holding her down on the
floor. Shove also burned R.H. with a cigarette several times on
her vagina.
As provided in further detail post in parts IV.B. and IV.C.,
the prosecution presented victim impact evidence through
several family members of the victims: the Southers’ daughters;
one of their granddaughters; Elizabeth’s sister; and Elizabeth’s
brother-in-law. The witnesses testified to how close they were
with the Southers, the many good qualities that the Southers
possessed, and how their murders devastated the family.
2. Defense Case
The defense presented two witnesses in its case in
mitigation: Shove’s wife at the time of trial, M.A., and M.A.’s
24-year-old son, J.T.
M.A. met Shove at the end of 2001 or beginning of 2002.
At their first meeting, Shove told M.A. that he had been married
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 PEOPLE v. SHOVE
Opinion of the Court by Kruger, J.

four times but that he loved all his wives and still helped if they
needed anything. M.A. had two sons from a prior relationship,
and Shove was the first man M.A. dated whom she introduced
to her sons. M.A. and J.T. were both aware that Shove
frequently used the alias “Tony Bonanno” and referred to him
as such. J.T. testified that Shove “was more of a father than my
real dad, even in the short time I got to know him.” M.A.
testified that Shove is a “wonderful” and “excellent” man with a
“good heart” who was beloved by senior citizens at the Elks
Lodge and related a time when he helped an elderly man who
had fallen. With J.T.’s blessing, Shove married M.A. in 2004.
M.A. denied any abuse or threats during their relationship
and testified that Shove always treated her with respect. J.T.
confirmed that Shove treated his mother with respect, denied
any abusive conduct, and stated that his mother always told him
how great Shove treated her and how happy she was. Shove did
not tell M.A. about any abuse in his prior marriages but told her
that he had been incarcerated for something he did not do. J.T.
did not believe Shove to be capable of domestic violence or
murder and was unaware of Shove’s criminal history. M.A.
frequently visited Shove in jail after his arrest. Despite Shove’s
convictions, M.A. and J.T. wanted to maintain a relationship
with Shove.
II. PRETRIAL ISSUES
A. Denial of Motion to Suppress Computer
Evidence
Before trial, Shove unsuccessfully moved to suppress
evidence seized from the search of his home on the ground that
the search warrant affidavit failed to establish probable cause
to search his residence. Shove now renews the contention. We
find no error in the admission of the evidence.
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 PEOPLE v. SHOVE
Opinion of the Court by Kruger, J.

1. Background
On April 23, 2002, Los Angeles County Sheriff’s
Department Detective Linda Muse signed an affidavit in
support of a warrant to search Shove’s home for, among other
items, personal computers and the data stored therein. A
magistrate approved the warrant the same day.
In the affidavit, Detective Muse detailed the Southers’
murders and the previous break-in at their home, the Cal Aero
safe burglary, and the extortion letters and telephone calls. The
affidavit described multiple reasons why investigators believed
both Vann and Shove were involved in the burglary. Vann was
aware that the office where the safe was located did not have an
alarm system, he was the only Cal Aero employee who was
aware of the safe’s contents, and he believed the safe contained
up to $300,000. The affidavit also detailed Vann’s strange
behavior, which Cal Aero employees observed before and after
the burglary. As to Shove, the affidavit described Shove’s efforts
to purchase Cal Aero through the Souther family attorney after
the murders, whose telephone number Shove had obtained from
Vann, Shove’s frequent communications with Vann, and his
company’s access to burglary tools.
The affidavit described the three computer-generated
extortion letters and observed that the first letter was
accompanied by a page from Elizabeth’s will, which had been
stolen from the safe. The affidavit observed that another letter
demanded $300,000 from Kenneth to keep supposedly
incriminating information about the murders from the police
and that a person identifying himself as “Mike Powers” had
telephoned Kenneth demanding the same $300,000 for the same
purpose. The affidavit described how, after the murder, the
white truck registered to Shove was at the Rencks’ home and

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

how the driver of that truck told Kenneth’s mother, who was
present, his name was “Mike Powers” and falsely claimed he was
there to visit Kenneth, when Kenneth knew no such person.
Based on the evidence set forth in the affidavit, Detective Muse
opined that Shove and Vann conspired to commit a burglary at
Cal Aero after the murders, and to extort the Rencks when the
money they expected to find inside the safe was not there. The
affidavit did not expressly state that evidence of these offenses
was suspected at Shove’s residence.
Officers executed the search of Shove’s residence on
April 25, 2002, leading to the recovery of a laptop computer from
inside the residence. An analysis revealed that the letter
addressed to Detective Martinez had been stored on and printed
from the seized computer days before the letter was received at
Cal Aero.
Before trial, Shove filed a motion to suppress the computer
evidence seized from his home, arguing that the affidavit lacked
probable cause and the good faith exception to the exclusionary
rule was inapplicable. The motion asserted there were “no
articulable facts demonstrating probable cause that [he] was
involved in the burglary at CAL AERO or the extortion of the
Renck’s and that evidence of his involvement will be found on a
computer in his home.” The motion continued: “Obviously, the
police wanted to search defendant Shove’s computers for
evidence that he was the source of the computer generated
extortion letters directed at the Rencks. However, the proper
vehicle for obtaining a legal right to search defendant’s property
was through an affidavit to a search warrant demonstrating
probable cause for such a search. . . . Here, there is simply no
facts in the warrant to establish probable cause that defendant
Shove was involved in the burglary and the extortion.” More

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

particularly, there was “no reliable evidence connecting the use
by defendant Shove of his computers to draft the letters.” In
opposing the motion, the prosecution detailed the facts pointing
to Shove’s involvement and argued that even if the facts were
inadequate to support the magistrate’s decision to issue the
search warrant, officers in good faith relied on the validity of the
warrant in executing the search.
At the hearing on the motion, Shove’s counsel argued that
the affidavit was insufficient to implicate Shove in the offenses,
provided no nexus between the offenses and the residence, and
that the information included therein was stale, noting that the
last date referenced in the affidavit was October 11, 2001,
months before the search. The trial court denied the motion,
finding sufficient probable cause for its issuance and holding
that regardless, the good-faith exception applied.
2. Discussion
The Fourth Amendment to the United States Constitution
prohibits “unreasonable searches and seizures” and requires
search warrants to be supported by “probable cause.” (U.S.
Const., 4th Amend.) “In determining whether a search warrant
is supported by probable cause, we consider ‘whether, given all
the circumstances set forth in the affidavit . . . there is a fair
probability that contraband or evidence of a crime will be found
in a particular place.’ ” (People v. Beck and Cruz (2019)
8 Cal.5th 548, 592, quoting Illinois v. Gates (1983) 462 U.S. 213,
238 (Gates).) Though “ ‘[t]he test for probable cause is not
reducible to “precise definition or quantification” ’ . . . we have
stated that it is ‘ “less than a preponderance of the evidence or
even a prima facie case.” ’ ” (People v. Westerfield (2019)
6 Cal.5th 632, 659.) “ ‘The task of the issuing magistrate is
simply to make a practical, commonsense decision whether,
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 PEOPLE v. SHOVE
Opinion of the Court by Kruger, J.

given all the circumstances set forth in the affidavit . . . there is
a fair probability that contraband or evidence of a crime will be
found in a particular place.’ ” (People v. Carrington (2009)
47 Cal.4th 145, 161 (Carrington), quoting Gates, at p. 238.)
“ ‘ “[S]ufficient probability, not certainty, is the touchstone of
reasonableness under the Fourth Amendment.” ’ ” (Beck and
Cruz, at p. 592.) “ ‘The magistrate’s determination of probable
cause is entitled to deferential review,’ ” and “the warrant ‘can
be upset only if the affidavit fails as a matter of law to set forth
sufficient competent evidence’ supporting the finding of
probable cause.” (Westerfield, at p. 659.) Although the Fourth
Amendment is silent about how it is to be enforced, “ ‘[the high
court] created the exclusionary rule, a deterrent sanction that
bars the prosecution from introducing evidence obtained by way
of a Fourth Amendment violation.’ ” (People v. Macabeo (2016)
1 Cal.5th 1206, 1220.) The exclusionary rule does not apply,
however, where officers seized evidence “ ‘in reasonable, good-
faith reliance on a search warrant that is subsequently held to
be defective.’ ” (United States v. Leon (1984) 468 U.S. 897, 905
(Leon).)
Leon instructs that “[i]t is necessary to consider the
objective reasonableness, not only of the officers who eventually
executed a warrant, but also of the officers who originally
obtained it or who provided information material to the
probable-cause determination.” (Leon, supra, 468 U.S. at
p. 923, fn. 24.) An officer would not “manifest objective good
faith in relying on a warrant based on an affidavit ‘so lacking in
indicia of probable cause as to render official belief in its
existence entirely unreasonable.’ ” (Id. at p. 923.) “[T]he test by
which the ‘objective reasonableness’ of an officer’s decision to
submit an affidavit to a magistrate is to be judged . . . is whether

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

a reasonable and well-trained officer ‘would have known that his
affidavit failed to establish probable cause and that he should
not have applied for the warrant.’ ” (People v. Camarella (1991)
54 Cal.3d 592, 605–606 (Camarella).)
Shove and the Attorney General dispute whether probable
cause supported the warrant. We need not resolve this dispute
because Leon’s good-faith exception would permit admission of
the evidence in any event. (See Leon, supra, 468 U.S. at p. 905.)
Given the circumstances discussed in the affidavit —
linking Shove with the fictitious Mike Powers and thereby to the
crimes — the affidavit was not “ ‘so lacking in indicia of probable
cause’ ” regarding Shove’s involvement in the burglary and
extortion so “ ‘as to render official belief in its existence entirely
unreasonable.’ ” (Leon, supra, 468 U.S. at p. 923.) The question
is whether it was reasonable to believe that evidence of those
crimes would be found in Shove’s home. (Gates, supra, 462 U.S.
at p. 238; see People v. Frank (1985) 38 Cal.3d 711, 728–729
[“ ‘The critical element in a reasonable search is not that the
owner of the property is suspected of crime but that there is
reasonable cause to believe that the specific “things” to be
searched and seized are located on the property to which entry
is sought’ ”]; People v. Gonzalez (1990) 51 Cal.3d 1179, 1206
[“Mere evidence of a suspect’s guilt provides no cause to search
his residence”].) Shove argues the affidavit provided no
evidence to suggest that items related to the burglary or
extortion would be found at his home, such that no reasonable
officer could believe in good faith that it supported there was
probable cause for the search. (Leon, supra, 468 U.S. at p. 923.)
We disagree.
While the affidavit does not state facts directly indicating
that particular evidence was likely to be found in Shove’s home,

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

to establish probable cause “[i]t is not essential that there be
direct evidence that such evidence will be at a particular
location.” (People v. Sandlin (1991) 230 Cal.App.3d 1310, 1315;
accord, U.S. v. Fannin (9th Cir. 1987) 817 F.2d 1379, 1382 [“This
circuit has recognized that ‘[d]irect evidence that contraband or
evidence is at a particular location is not essential to establish
probable cause to search the location’ ”].) Rather, “ ‘the nexus
between the items to be seized and the place to be searched’ can
rest on ‘normal inferences as to where a criminal would be likely
to hide’ evidence of his crimes.” (U.S. v. Kvashuk (9th Cir. 2022)
29 F.4th 1077, 1085 (Kvashuk); accord, People v. Lazarus (2015)
238 Cal.App.4th 734, 764 [magistrate can “ ‘ “draw reasonable
inferences about where evidence is likely to be kept” ’ ”];
Sandlin, at p. 1315 [same]; People v. Cleland (1990)
225 Cal.App.3d 388, 392–393 [same].)
“ ‘ “[A] number of California cases have recognized that
from the nature of the crimes and the items sought, a magistrate
can reasonably conclude that a suspect’s residence is a logical
place to look for specific incriminating items.” ’ ” (Carrington,
supra, 47 Cal.4th at p. 163; accord, People v. Bryant, Smith and
Wheeler (2014) 60 Cal.4th 335, 370 (Bryant).) For instance, in
Carrington, supra, 47 Cal.4th at page 163, it was reasonable for
a magistrate to conclude defendant’s residence was the most
likely place to find a copied key to the site of a burglary and
stolen checks where the key was “the type of item one
reasonably could expect a defendant to keep at home” and
where, regarding the checks, “the affiant observed based upon
his training and experience, ‘subjects who steal checks with the
intent to commit forgeries will maintain possession of those
stolen checks until they can be cashed.’ ” And in an extortion
case more closely resembling this one, the Ninth Circuit

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

explained that “the government would have probable cause to
search for and seize instrumentalities likely to have been used
to facilitate the transmission” of an extortionate
communication, and a magistrate “could rightfully assume that
there was a ‘fair probability’ that such evidence could be
contained on computers or storage devices found in [the
suspect’s] residence,” where a computer had been involved in the
scheme. (U.S. v. Adjani (9th Cir. 2006) 452 F.3d 1140, 1146; see
also Kvashuk, supra, 29 F.4th at p. 1085 [“the nature of
cybercrime — specifically, its reliance on computers and
personal electronic devices — is relevant to probable cause for
searching the suspect’s residence”], citing Adjani, at p. 1145.)
The affiant here describes her extensive training and
experience and states that she had questioned suspects and
witnesses “concerning the manner in which they commit their
crimes, dispose of or hide evidence, and avoid discovery by law
enforcement.” The affidavit then ties Shove to the computer-
generated extortion letters, one of which included the will
burgled from the Cal Aero safe. As discussed, courts have in
some circumstances found it reasonable for a magistrate to infer
a fair probability that the perpetrator of a crime involving a
computer will have computers at home with incriminating
evidence. Whether or not a magistrate here could have inferred
there was a fair probability that evidence of those extortion
letters would be found at Shove’s home, a well-trained officer
reasonably could have “believed that the affidavit presented a
close or debatable question on the issue of probable cause”
(Camarella, supra, 54 Cal.3d at p. 606; see Leon, supra,
468 U.S. at p. 926 [the good-faith exception applies when an
affidavit “provide[s] evidence sufficient to create disagreement
among thoughtful and competent judges as to the existence of

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

probable cause”]), such that the affidavit was not “ ‘so lacking in
indicia of probable cause as to render official belief in its
existence entirely unreasonable.’ ” (Leon, at p. 923.)
Contrary to Shove’s contention, the passage of six months
from the burglary and extortion did not render the affidavit so
plainly “stale” as to alter this conclusion. Even in 2001, it was
generally understood that computer files could be retrieved even
after deletion. (See U.S. v. Hay (9th Cir. 2000) 231 F.3d 630,
636; see also Kvashuk, supra, 29 F.4th at p. 1087 [“[E]vidence of
a crime typically remains on a computer even if the defendant
attempts to delete it”]). We discern no error in the admission of
the evidence obtained in the search.
B. Exclusion of Third Party Culpability and
Impeachment Evidence
Shove contends that the trial court abused its discretion
when it precluded presentation of evidence that would have
tended to suggest that others were responsible for the murders.
Shove argues that precluding the presentation of third party
culpability evidence violated his state and federal constitutional
rights, requiring reversal of his murder convictions and death
judgment. We hold that the trial court did not abuse its
discretion in excluding this evidence.
1. Background
a. Evidence regarding Kenneth’s culpability
(1) Proffers Accompanying Motion in Limine
Before trial, the prosecution moved in limine to exclude
alleged third party culpability evidence pertaining to Kenneth
and Vann under Evidence Code section 352 and People v. Hall
(1986) 41 Cal.3d 826, 833 (Hall).

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Opinion of the Court by Kruger, J.

Opposing the motion, Shove contended that Kenneth
would have a motive to commit the murders. Specifically, Shove
alleged: (1) Kenneth is married to the victims’ daughter,
Allison, who stood to inherit the victims’ business and other
assets; (2) Kenneth told a witness that he stayed in his marriage
only because of that future inheritance; (3) Hubert had accused
Kenneth of stealing from the business; and (4) shortly before the
murders, Allison told Hubert that she no longer wanted his
financial support, a decision which Kenneth opposed.
Shove also asserted that there was evidence linking
Kenneth to the crimes. Shove alleged, among other things, that:
Kenneth did not have an alibi for the time the crimes were
committed; the victims’ telephone line had been disabled and
Kenneth led officers to a phone box hidden on the property and
reconnected the phone wires; the perpetrator did not disconnect
the burglar alarm and Elizabeth recently told Kenneth and
Allison that the alarm was not working; the victims were badly
beaten, which suggested that the killer was personally angry
with the victims and tended to undermine a murder for hire
theory; “[m]any witnesses indicated [Hubert’s] total disdain and
dislike” of Kenneth; two sets of separate footprints not linked to
Hardin or the victims “indicate[d] other persons were involved”;
Hubert kept cash at his business and two years after the
homicides, Allison’s friend, L.P., saw Kenneth with a suitcase
full of cash; after the murders, Kenneth exhibited “no expression
of grief” and made several inappropriate comments; Kenneth
“did not show any fear” when he received the extortion letters
“and seemed like he knew about the letters before hand”;
Kenneth became uncooperative with the police and convinced
his wife to be uncooperative as well; the victims “had just retired
to bed” when they were killed, indicating somebody knew what

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

time they would go to bed; Kenneth told witnesses that Hubert
did not have his hearing aid in at the time of the crime; and
instead of hiring a cleaning company, Kenneth insisted on
cleaning up the victims’ blood himself.
In support of this proffer, Shove attached police and
defense investigators’ notes and narratives of the investigation,
transcripts of witness interviews, and an affidavit for a warrant
to collect DNA from Kenneth, Vann, Reiland, Shove, and Proulx
in which a detective opined that Kenneth and Allison may have
been involved in a conspiracy to murder the Southers because
they financially benefited from their deaths.
At the hearing on the motion, the prosecutor observed that
several of Shove’s assertions were not supported by the
materials submitted, and even if they were, they made no
connection between Kenneth and the crimes. The trial court
ultimately ruled that Shove failed to meet the standard Hall
articulated for the introduction of third party culpability
evidence. The court noted that it had reviewed the materials
attached to Shove’s motion in detail and found that Shove had
provided “perhaps motive” and “perhaps opportunity,” but failed
to proffer evidence “actually connect[ing] [Kenneth] to the
crime.” The court also found that the evidence would be time-
consuming and would confuse and distract the jury.
(2) Kenneth’s Statements to Proulx
After jury selection and before opening statements,
Shove’s counsel requested reconsideration of the court’s ruling,
claiming that he discovered “some evidence” of Kenneth
“confessing to doing the murder.” Shove’s counsel related
Proulx’s purported tape-recorded statement to police that
Proulx, in the paraphrasing of Shove’s counsel, “call[ed]

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

[Kenneth] and he hear[d] [Kenneth] put his hand over the phone
and say, ‘hey, they know I did it’ or something like that.” But
because Proulx had admitted complicity in the burglaries, the
trial court would not allow Shove’s counsel to discuss Proulx’s
statement in his opening statement without having Proulx
brought to court and appointed counsel. The court declined to
rule without knowing that Proulx would testify to that
statement. Shove’s and Hardin’s counsel argued that if Proulx
were unavailable, the officer who heard the statement could
testify to it as a declaration against interest. The court declined
to rule on the oral motion and suggested the parties “put it in
writing and be specific.” Shove does not point to any subsequent
written motion or other attempt to introduce Proulx’s
statement.5
(3) L.P.’s Interactions with Allison and
Kenneth
Shove’s counsel argued that he was entitled to impeach
Kenneth’s denial that he had “ever show[n] anybody a large

5
Shove contends that this information was already before
the trial court in his Penal Code section 995 motion in which he
challenged the untimely disclosure of Proulx’s interview. As
provided in the investigators’ narrative of the interview
attached to that motion, Proulx admitted to the safe burglary
and making the extortion calls, and told investigators that in
the first extortion call, he “thought Ken[neth] put his hand over
the mouth piece and said something like, ‘We have been
caught.’ ” The Penal Code section 995 motion did not, however,
concern the admissibility of Proulx’s statement and was filed
nearly two years before Shove’s counsel orally sought its
admission at trial. Additionally, to the extent this report of
Proulx’s recollection of Kenneth’s words differs from Shove’s
counsel’s proffer at trial, there is no suggestion that either
phrasing changes the outcome.
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Opinion of the Court by Kruger, J.

satchel of cash” with L.P.’s proffered testimony that “shortly
after the murders,” Kenneth showed her a “very large suitcase
of stacked bills.” Shove’s counsel claimed that this evidence was
relevant to Kenneth’s credibility and motive. Shove’s counsel
also asserted that L.P. would testify that investigators had
threatened she would be killed if she testified.
At an Evidence Code section 402 hearing, L.P. testified
that Allison was her best friend. Investigators interviewed L.P.
sometime after the murders and over the next two or three years
she faxed them her notes of evidence indicating that Kenneth
might have been involved. When L.P. noticed a discrepancy
between what Kenneth had testified to at the preliminary
hearing and what he had told her, L.P. reached out and met with
detectives, who told L.P. that they never read her faxes and that
they already had the people that they believed were responsible.
L.P. testified that one detective threatened that L.P. would be
killed if she testified, and that she “blew [their] whole case.”
L.P. also testified that another detective later told her that,
“unofficially,” they did not want her talking to or sharing the
faxes with defense investigators. Finally, L.P. testified that on
September 9, 2003, Kenneth told her he had enough money to
leave Allison to be with L.P. and showed her a briefcase full of
cash and Cal Aero checks. Kenneth gave L.P. $200 and left to
go to an aerospace auction to bid on items for the shop.
The trial court observed that the briefcase incident
occurred two years after the murders, and that it was “classic
extrinsic impeachment on a collateral matter.” As to the alleged
threat, Shove’s counsel argued that it was relevant to his
argument that some witness testimony was the “product of other
people’s suggestion” and that L.P. was “relaying some things
that clearly reflect upon how witnesses have been approached

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Opinion of the Court by Kruger, J.

in this case.” The court precluded Shove’s counsel from
impeaching Kenneth with L.P.’s testimony.
b. Evidence regarding Vann’s culpability
In ruling on the prosecution’s earlier request, both Shove’s
counsel and the trial court focused exclusively on third party
culpability evidence as to Kenneth; they did not address Vann.
Before opening statements, the prosecution orally renewed its
motion to exclude third party culpability evidence as to Vann.
Opposing the motion, Hardin’s counsel claimed there was
evidence implicating Vann in the murders: specifically, there
were phone calls between Shove and Vann; there was evidence
that Vann was involved in the safe burglary; and there was
evidence that Vann knew details about the crime that only
someone who was there would have known. The trial court
advised Hardin’s counsel to “put that specifically in writing
and . . . list what those things are,” and denied the motion “on
the basis of an inadequate showing . . . .” Shove cites nothing in
the record indicating that either his or Hardin’s counsel ever
followed up by filing a written third party culpability motion as
to Vann.
During the guilt phase defense case, Shove’s counsel
sought to call Vann’s wife to establish a connection between
Hardin and Vann. He explained that there was evidence that
Hardin sold toys and that Vann’s wife would testify that the
Vanns had a side business selling toys on eBay.6 When the trial
court commented that Shove’s counsel could present evidence of
“an actual connection if you have one, but not a maybe,” defense

6
Hardin’s girlfriend testified that one of the ways Hardin
earned a living was by selling children’s toys, such as water
guns.
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 PEOPLE v. SHOVE
Opinion of the Court by Kruger, J.

counsel went on to argue that witnesses said Hardin and Vann
had been at the same parties, socialized, and did drugs together.
The trial court did not recall evidence that Hardin and Vann did
drugs together. Shove’s counsel agreed but argued, “[Y]ou heard
that Vann was at these parties where Mr. Hardin was at the
barbecues. They would be there together.” Shove’s counsel
further contended that Hardin used to do work for Industrial
Salvage, which did business with Cal Aero. Although there was
no direct evidence that Vann ever hired Hardin,
“circumstantially the jury can draw inferences of relationships
from other circumstances.” The trial court found the proffer
inadequate and precluded Shove’s counsel from presenting
evidence of the Vanns’ toy business.
Shove’s counsel also sought to call Cal Aero employee F.G.
to testify that Vann was a braggart who said he knew people
with guns and Hell’s Angels. Shove’s counsel argued this was to
impeach Vann’s credibility, as Vann testified he was scared of
Shove and his alleged mafia connections. The trial court
excluded this testimony as irrelevant and denied a motion for a
mistrial based on this ruling. Shove’s counsel also sought to
introduce F.G.’s testimony that Vann was aware that an
unrelated employee was stealing from the business but did
nothing about it. Shove’s counsel argued this would impeach
Vann’s credibility, as Vann testified that nobody ever confronted
him with someone stealing from the business; Shove’s counsel
further argued that Vann’s failure to respond to the stealing “is
indicative that he was involved.” The court excluded this

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

testimony as irrelevant and more prejudicial than probative
under Evidence Code section 352.7
2. Discussion
a. Challenge to Hall
The Evidence Code instructs that evidence is admissible
only if relevant (Evid. Code, § 350), meaning it must have a
“tendency in reason to prove or disprove any disputed fact that
is of consequence to the determination of the action” (id., § 210).
“ ‘A trial court has “considerable discretion” in determining the
relevance of evidence. [Citation.] Similarly, the court has broad
discretion under Evidence Code section 352 to exclude even
relevant evidence if it determines the probative value of the
evidence is substantially outweighed by its possible prejudicial
effects.’ ” (People v. Miles (2020) 9 Cal.5th 513, 587 (Miles).)
In Hall, we applied these general principles to the
admission of third party evidence. We instructed: “To be
admissible, the third-party evidence need not show ‘substantial
proof of a probability’ that the third person committed the act;
it need only be capable of raising a reasonable doubt of
defendant’s guilt. At the same time, we do not require that any
evidence, however remote, must be admitted to show a third
party’s possible culpability. . . . [E]vidence of mere motive or
opportunity to commit the crime in another person, without
more, will not suffice to raise a reasonable doubt about a
defendant’s guilt: there must be direct or circumstantial

7
The court did not reject, and the prosecutor did not object
to, Shove’s counsel’s proffer that F.G. would testify that he did
not see any other cars on the night of the burglary, contrary to
Vann’s claim that after arriving at the parking lot, he was soon
met by Shove and Proulx.
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 PEOPLE v. SHOVE
Opinion of the Court by Kruger, J.

evidence linking the third person to the actual perpetration of
the crime.” (Hall, supra, 41 Cal.3d at p. 833.) We directed
courts to “simply treat third-party culpability evidence like any
other evidence: if relevant it is admissible ([Evid. Code,] § 350)
unless its probative value is substantially outweighed by the
risk of undue delay, prejudice, or confusion ([Evid. Code,]
§ 352).” (Id. at p. 834.)
Shove says he has no quarrel with applying the relevance
and prejudice provisions of Evidence Code sections 350 and 352
to third party culpability evidence. He argues, however, that
requiring a defendant to “connect a specific third person to the
commission of the crime before third party culpability evidence
may be admitted” goes beyond the requirements of the Evidence
Code and in so doing “prevents the defendant from presenting
all the facts necessary to present a meaningful defense.”
We rejected both of these arguments in Hall. We there
explained that the Evidence Code requires evidence of a third
party’s connection to the crime because evidence that does no
more than suggest that someone else had a motive or the
opportunity to commit the murder “will not suffice to raise a
reasonable doubt” as to the defendant, and so is not relevant and
admissible. (Hall, supra, 41 Cal.3d at p. 833.) To the extent
Shove argues that Hall infringes his constitutional right to
present a defense, we rejected the same argument in Hall and
have consistently rejected it since. (People v. Clark (2016)
63 Cal.4th 522, 597, fn. 54; People v. Farmer (1989) 47 Cal.3d
888, 921; see Hall, at pp. 834–835; see also, e.g., People v.
Bracamontes (2022) 12 Cal.5th 977, 1001 [applying Hall];
People v. Dworak (2021) 11 Cal.5th 881, 895 (Dworak) [same];
People v. Turner (2020) 10 Cal.5th 786, 816–818 (Turner);
People v. Page (2008) 44 Cal.4th 1, 37, fn. 16, 39 .) Shove offers

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Opinion of the Court by Kruger, J.

no persuasive reason to reconsider.8 We also reject Shove’s
assertion that Hall is a judicially created modification of the

8
Shove relies on Holmes v. South Carolina (2006) 547 U.S.
319, but Holmes does not help his case. There, the high court
invalidated an evidence rule under which a defendant could not
“introduce proof of third-party guilt if the prosecution has
introduced forensic evidence that, if believed, strongly supports
a guilty verdict.” (Id. at p. 321; id. at p. 331.) As this court has
previously noted, and as the Holmes opinion itself appears to
acknowledge, Hall’s instructions about how to apply Evidence
Code sections 350 and 352 to third party culpability evidence
bear no material resemblance to the unusual rule at issue in
Holmes, which expressly conditioned admissibility of third party
culpability evidence on the strength of the prosecution’s case.
(People v. Robinson (2005) 37 Cal.4th 592, 627, fn. 17
[concluding that the then-recent grant of certiorari in Holmes
did not affect Hall, given South Carolina’s “unique” and “very
restrictive rule” concerning third party culpability evidence
“does not apply in California”]; see Holmes, at p. 327 & fn. *
[observing that state evidentiary rules excluding third party
culpability evidence that is too remote, speculative, or fails to
sufficiently connect another person to the crime “are widely
accepted,” citing Hall among other cases]; see also People v.
Linton (2013) 56 Cal.4th 1146, 1202.)
Shove’s reliance on State v. Meister (2009) 148 Idaho 236
is also misplaced. There, the Idaho Supreme Court invalidated
its prior holding that in order to present evidence of an alternate
perpetrator, “a defendant must produce a ‘train of facts or
circumstances, as tend clearly to point out some one besides the
[defendant] as the guilty party.’ ” (Id. at p. 240.) The court held
that the subsequent adoption of the Idaho Rules of Evidence,
which established standards for the admission of relevant
evidence, implicitly overruled its prior rule. (Id. at pp. 240–
241.) The trial court there thus erred in excluding proffered
evidence based on the Idaho Supreme Court’s prior decision
instead of applying the rules of evidence. (Id. at p. 241.) Hall,
in contrast, directed courts to “simply treat third-party
culpability evidence like any other evidence” under the Evidence
Code. (Hall, supra, 41 Cal.3d at p. 834.)
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 PEOPLE v. SHOVE
Opinion of the Court by Kruger, J.

Evidence Code, treats third party culpability evidence as a
special category of evidence, or is a sufficiency rather than a
relevance test.
b. The trial court did not err in excluding
proffered third party culpability evidence under
Hall
Shove argues that even under the Hall standard, the trial
court erred in precluding his proffered evidence of third party
culpability. We review the trial court’s decision to exclude such
evidence for abuse of discretion. (People v. Brady (2010)
50 Cal.4th 547, 558.) “ ‘ “We will not disturb a trial court’s
exercise of discretion under Evidence Code section 352 ‘ “except
on a showing that the court exercised its discretion in an
arbitrary, capricious or patently absurd manner that resulted in
a manifest miscarriage of justice.” ’ ” ’ ” (Miles, supra, 9 Cal.5th
at pp. 587–588.)
Shove first argues that the trial court erred in precluding
evidence of Proulx’s statement that during the first extortion
call, Kenneth said something about being “caught” that Shove
contends is evidence that Kenneth admitted to being the
perpetrator.9 But, as noted, the court did not rule on the
admissibility of Proulx’s out-of-court statement as alleged third
party culpability evidence. The court instead prohibited Shove’s
counsel from discussing this hearsay statement during the
defense’s opening statement — a ruling Shove does not
challenge here — and deferred ruling on its admissibility
pending either the production of Proulx to determine if he would
assert his privilege against self-incrimination, or briefing on an

9
As noted, there are two versions of this supposed
statement in the record. (See fn. 5, ante.)
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 PEOPLE v. SHOVE
Opinion of the Court by Kruger, J.

alternate theory of admissibility in the event Proulx was
unavailable. Shove’s counsel did not pursue either course of
action. He thus never secured a ruling on the admissibility of
the evidence, and so he has not preserved the issue on appeal.
(See People v. Samayoa (1997) 15 Cal.4th 795, 827; People v.
Rowland (1992) 4 Cal.4th 238, 259.)
The trial court reasonably found that the other proffered
evidence concerning Kenneth might establish either motive or
opportunity but did not constitute direct or circumstantial
evidence connecting Kenneth to any of the crimes. Shove’s
theories about Kenneth’s possible motive, as well as evidence of
Hubert’s disdain for Kenneth, were insufficient to raise a
reasonable doubt regarding Shove’s guilt. (See Hall, supra,
41 Cal.3d at p. 833.)
The same is true of Kenneth’s purported lack of alibi.
Shove did not, and does not, explain what evidence supported
his assertion that Kenneth did not have an alibi at the time of
the crimes. But even if the assertion were true, the evidence
would go only to whether Kenneth had a possible opportunity to
commit the crimes, which is not sufficient. (See, e.g., People v.
Ghobrial (2018) 5 Cal.5th 250, 284 [“evidence showing only a
third party’s possible opportunity is inadmissible”].)
Other evidence not solely relating to motive or opportunity
was tenuous and speculative and the trial court reasonably
excluded it. Although the trial court ruled that evidence of
multiple sets of footprints was admissible, the court reasonably
concluded that the footprints could not be used to argue
Kenneth’s culpability because they did not tend to link Kenneth
or any other specific person to the crimes. (See Turner, supra,
10 Cal.5th at pp. 816–817 [“admissible evidence of this nature
points to the culpability of a specific third party, not the

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

possibility that some unidentified third party could have
committed the crime”].) Kenneth’s allegedly callous behavior
after the murders did nothing to link him “to the actual
perpetration of the crime.” (Hall, supra, 41 Cal.3d at p. 833.)
Nor does speculation as to why Kenneth became uncooperative
with police; why (presumably after the crime scene had been
processed) he wanted to clean the victims’ blood himself rather
than hire a cleaning company; or why he purportedly “did not
show any fear and seemed like he knew about” the extortion
letters beforehand.
Shove’s counsel hypothesized Kenneth’s involvement
based on the facts that the victims were badly beaten and that
the victims were killed after they had gone to bed; he contended
that the brutality of the beating suggests the perpetrator’s
emotional involvement with the victims, and that the timing
suggests the perpetrator was someone aware of their daily
habits. But the trial court reasonably concluded that such
speculative evidence did not raise a reasonable doubt of Shove’s
guilt. (See People v. Young (2019) 7 Cal.5th 905, 938; People v.
Lewis (2001) 26 Cal.4th 334, 373.)
The trial court likewise reasonably determined that L.P.’s
proffered testimony that Kenneth possessed a briefcase full of
cash nearly two years after the murders was too tenuous to link
Kenneth to the perpetration of the murders. L.P.’s proffered
testimony that Kenneth told her that Hubert did not hear the
killers because he did not have his hearing aid in at the time of
the crime is also insufficient. Shove does not point to evidence
Hubert was in fact not wearing his hearing aids, but, in any
event, it would generally be expected that one would not wear
hearing aids to bed. L.P.’s further allegation that detectives had
threatened her was a collateral matter that did not, in this

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Opinion of the Court by Kruger, J.

context, link Kenneth to the perpetration of the murders and the
trial court was within its discretion to exclude it under Evidence
Code section 352.
As to Hardin’s counsel’s general claim that there was
evidence implicating Vann in the murders, neither defense
counsel submitted a specific offer of proof as requested by the
trial court, thus the claim has not been preserved for appeal.
(See People v. Valdez (2004) 32 Cal.4th 73, 108 (Valdez) [an offer
of proof must inform the trial court of the purpose and relevance
of the excluded evidence to preserve a claim concerning the
improper exclusion of evidence].)
As to Shove’s proffered third party culpability evidence,
the trial court did not err in precluding Shove’s counsel from
calling Vann’s wife as a witness in the defense case. Her
anticipated testimony that she and Vann sold toys online would
establish no substantial connection to Hardin, merely because
there was evidence that Hardin also sold toys. The trial court
also reasonably concluded that evidence that Vann bragged
about knowing Hell’s Angels or people with guns, or that he
allegedly did nothing about someone stealing from Cal Aero, was
irrelevant and/or unduly time-consuming relative to its
probative value.
Even if we were to assume error, it is not reasonably
probable the exclusion of third party culpability evidence
affected the verdict. (See People v. Cudjo (1993) 6 Cal.4th 585,
611–612 [applicable standard of prejudice for erroneous
exclusion of third party culpability evidence is that for state law
error]; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
Much of the evidence that Shove’s counsel had sought to
introduce was ultimately presented at trial. Shove’s counsel
was allowed to cross-examine Kenneth concerning his

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Opinion of the Court by Kruger, J.

knowledge of the phone box and his discovery and repair of the
phone lines. Evidence was introduced that there appeared to be
two different patterned shoeprints found at the murder scene,
and the medical examiner testified to the victims’ severe
injuries. Additionally, Vann testified that he found some of
Kenneth’s behavior after the murders inappropriate and that
Kenneth was laughing and joking at the Southers’ funeral.
Vann also testified that he had told police he thought Kenneth
was stealing from Cal Aero and might have committed the
murders. Allison testified that she broke off communication
with police for a period of time in 2002. Kenneth and Allison
testified concerning Kenneth’s whereabouts at the time of the
murders. There was also evidence that Shove hosted many
barbecues, some of which Vann and Hardin attended, and that
Hardin had done business with Industrial Salvage.10

10
Shove takes issue with the prosecution’s closing argument
that there was no connection between Hardin and Vann or
Hardin and the victims except for Shove, claiming that the
prosecution “took full advantage of the trial court’s erroneous
ruling” because the excluded evidence would have provided that
connection. We reject this argument because this is not an
instance where, as Shove argues, the state improperly
“benefit[ed] from an evidentiary void the state created.” Rather,
as discussed, Shove’s speculative attempts to link Vann and
Hardin through their respective toy businesses was properly
excluded and the jury did hear evidence about Vann and Hardin
attending Shove’s parties and each doing business with
Industrial Salvage, which would have permitted Shove’s counsel
to object to or argue against the prosecutor’s characterization of
the evidence. Indeed, Shove’s counsel argued in closing there
was evidence that Hardin was seen with Vann at a barbecue.
We also note that although Shove cites cases concerning
the impropriety of a prosecutor using precluded evidence to its

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

Accordingly, to the extent third party culpability evidence
could potentially link Kenneth or Vann to the murders, it was
largely “adequately placed before the jury.” (Hall, supra,
41 Cal.3d at p. 835.) Furthermore, evidence of Kenneth’s or
Vann’s “culpability would not tend to exculpate [Shove] in any
event. Because no testimony or circumstantial evidence limited
the number of perpetrators, [Kenneth’s or Vann’s] participation
would not undermine the significant evidence linking [Shove] to
the murder.” (Ibid.) The jury heard considerable evidence of
Shove’s extensive involvement in the entire scheme
encompassing the murders, burglary, and extortion. The
additional third party culpability evidence would not have
negated the evidence of Shove’s responsibility for the crimes; at
most, it would have potentially suggested that others may have
been responsible as well.

advantage, he does not raise a claim of prosecutorial misconduct
on that ground. Instead, in discussing the prejudicial nature of
asserted Griffin error (see post, pt. III.B.1), Shove calls such
prosecutorial tactics “improper” and asserts they cumulated
with the Griffin error to alter the result of his trial.
Shove also summarily claims, in a footnote within his
discussion of the asserted prejudice flowing from the trial court’s
evidentiary exclusions, that the prosecutor personally vouched
for Vann’s truthfulness by arguing that Vann did not lie to the
jury. Shove later states the bare conclusion that this vouching
was misconduct that prejudicially cumulated with the
prosecution’s asserted misconduct in appealing to sympathy.
(See post, pt. III.B.2.) To the extent Shove attempts to raise
such misconduct claims, we agree with the Attorney General
that the “ ‘point is not properly raised: it is perfunctorily
asserted without argument in support.’ ” (People v. Daveggio
and Michaud (2018) 4 Cal.5th 790, 830, fn. 6 (Daveggio).)
Furthermore, Shove’s counsel raised no trial court objections on
these grounds.
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 PEOPLE v. SHOVE
Opinion of the Court by Kruger, J.

C. Admission of Audio Recording
Shove argues that the trial court erred in admitting an
audio recording wherein he claimed to have only two talents:
the ability to talk people into anything and to kill when the
reason was right. Shove contends the recording was irrelevant,
constituted impermissible character evidence, and that any
probative value was outweighed by the danger of unfair
prejudice. (Evid. Code, §§ 351, 352, 1101, subd. (a).) He further
argues that the admission of the recording rendered his trial and
death sentence fundamentally unfair. We find no ground for
reversal.
1. Background
In 2004, Shove’s ex-wife provided investigators with an
audiotape containing a recording of Shove made sometime
before 1990. Shove is the only person heard on the recording,
and there is no stated purpose for the narrative.
The recording begins with Shove providing a vague
account of a failed attempt to “set up” an unknown entity that
owned a “drug-way to the U.S.” to “kill their financial backing.”
Shove states: “Both families issued a contract. So I have a ton
of $50,000 on my head. I got a hole in my chest. The pain is
unreal. Not only the pain of being set up, but the pain to know
that you failed.” Shove then recounts purported childhood
memories and reminisces about how he “was known for a mile
radius” from his house and how he “had a knack of making
money” as a child through various ventures. Shove also relates
that he befriended the Bonanno crime family that lived across
the street, stating, “that’s where I got my name.”
Shove then claims that he served two tours of duty in
Vietnam and “made sergeant.” Shove recounts that he “was a
good killer” and “saw things I don’t even want to repeat, episodes
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 PEOPLE v. SHOVE
Opinion of the Court by Kruger, J.

going into villages, killing everything that lived.” Shove
continued: “I learned only one thing out of life, to live. This is
what went thru [sic] my mind on how to survive.” Shove states
he then “signed on as mercenary paid for by the United States
government” who “pay you so much a head to kill people in a
foreign war,” and that “I don’t think you ever forget the faces of
the many, many, many people you kill . . . .”
Shove claims, “[W]henever I talk, I can draw a crowd,” and
the recording concludes with Shove stating: “I can talk people
into anything. You listen to me for five minutes and you’ll follow
me for five years. That was my motto. That’s what I can do. I
can’t sing. I can’t have no other talents, only that, that and the
ability to go kill, if the reason was right.”
Before trial, the parties debated the admissibility of the
recording. The prosecutor argued that the statements in the
recording were admissible as admissions or constituted “generic
threat[s]” relevant to show Shove’s state of mind, including
motive, malice, intent to kill, and premeditation and
deliberation. The defense countered that the recording was
irrelevant, constituted inadmissible hearsay and impermissible
character evidence, and that its prejudicial effect substantially
outweighed its probative value. (Evid. Code, §§ 350, 352.)
Based on the argument and authorities submitted by the
prosecutor, the trial court ruled that the recording was
admissible.
The prosecutor concluded his guilt phase opening
statement by stating he would “leave you with a flavor of
Theodore Shove . . . . whether it’s being spoken while Shove’s
foot is in the world of fantasy or reality will be for you to decide,
but it is a tape of Theodore Shove nonetheless giving you a
glimpse into the mind of Tony Bonanno, Theodore Shove, giving

45
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Opinion of the Court by Kruger, J.

you a view into his thought process.” Over Shove’s counsel’s
objection, the prosecutor then played the final portion of the
recording beginning with “I can talk people into anything. . . .”
At trial, a detective testified to receiving the tape from Shove’s
ex-wife, the recording was played in its entirety, and the jury
received a transcript. The recording was again played during
the prosecutor’s guilt phase closing argument.
2. Discussion
Shove argues that the statements in the recording should
not have been admitted because they were irrelevant and
constituted impermissible character evidence and because any
probative value was outweighed by the danger of unfair
prejudice. (Evid. Code, §§ 350, 352.) The Attorney General
argues, as the prosecutor did below, that evidence of this alleged
“generic threat” was relevant to show Shove’s state of mind,
including motive, malice, intent to kill, and premeditation and
deliberation.
“Evidence of a defendant’s statement regarding possible
future criminal conduct in a hypothetical situation has at least
as great a potential for prejudice in suggesting a propensity to
commit crime as evidence of other crimes. Therefore, the
content of and circumstances in which such statements are
made must be carefully examined both in determining whether
the statements fall within the state-of-mind exception, as
circumstantial evidence that defendant acted in accordance with
his stated intent, and in assessing whether the probative value
of the evidence outweighs that potential prejudicial effect.”
(People v. Karis (1988) 46 Cal.3d 612, 636 (Karis).) As a general
matter, a “generic threat” may be “admissible to show the
defendant’s homicidal intent where other evidence brings the
actual victim within the scope of the threat.” (People v.
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 PEOPLE v. SHOVE
Opinion of the Court by Kruger, J.

Rodriguez (1986) 42 Cal.3d 730, 757.) But such evidence is
inadmissible where “the circumstances in which the statements
were made, the lapse of time, or other evidence suggests that the
state of mind was transitory and no longer existed at the time of
the charged offense.” (Karis, at p. 637.)
Here, there is little in or about the recording to show
Shove’s state of mind at the time of the murders. The imagined
future circumstances and potential class of victims within the
scope of Shove’s statements are indistinct and potentially
limitless. The recording was also made more than a decade
before the murders, at a time when Shove was unaware of the
Southers’ existence, and its relevance to his state of mind at the
time of the offenses is unclear. Further, the recording appears
to have been an amalgamation of true biographical events
interspersed with fiction. There was, for instance, no evidence
that Shove had ever served in the armed forces; the investigator
who obtained the recording testified that he did not verify
whether Shove ever served in Vietnam or contracted with the
government afterwards, and the record is otherwise silent as to
any military service. Moreover, there is no known purpose for
the recording aside from Shove’s counsel’s assertion that it was
made in preparation for writing a book, rendering the
trustworthiness of the statements questionable. (See Evid.
Code, § 1252; Karis, supra, 46 Cal.3d at p. 635.) Indeed, the
prosecution seemingly accepted the fictitious nature of portions
of the recording by stating in its opening statement, “whether
it’s being spoken while Shove’s foot is in the world of fantasy or
reality will be for you to decide . . . .” Given all the
circumstances, the trial court erred in admitting the recording.
It is not, however, reasonably probable that Shove would
have received a more favorable result had the recording been

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Opinion of the Court by Kruger, J.

excluded. (See Watson, supra, 46 Cal.2d at p. 836; People v.
Chism (2014) 58 Cal.4th 1266, 1298 (Chism) [erroneous
admission of evidence at the guilt phase is reviewed under
Watson standard].) There was considerable evidence of Shove’s
involvement in the murders and as the mastermind behind the
entire scheme, including Shove’s interest in and extensive
efforts to obtain Cal Aero, his relationship to and
communications with Hardin at the time of the murders, and
his involvement in the safe burglary, a fruit of which was used
in the extortion scheme. To be sure, the prosecutor argued in
closing that the recording was evidence “in [Shove’s] own words”
of his ability “to talk people into things and to kill,” and asserted
“[t]hat’s who this man is.” But Shove’s vague statements on the
recording concerning his persuasive faculties and ability to
intimidate were largely duplicative of the more specific
testimony of multiple witnesses who described these attributes
in some detail. Likewise, the recording’s value in supporting the
prosecution’s theory that Shove’s thought processes were
partially based in fantasy was largely duplicative of other
admissible, more contemporary evidence demonstrating as
much. (See People v. Riccardi (2012) 54 Cal.4th 758, 828–830
(Riccardi).) Several witnesses testified to Shove’s other
fantastical claims, such as his repeated assertions that he had
mafia connections, his assertions that he had been a CIA agent,
that he was going to purchase Paramount Studios, and that he
had a group of enforcers who would conduct clandestine
operations on his behalf. As for the statements about the ability
to kill, the statements in the recording were connected to
fighting for the United States in the Vietnam War; they made
no mention of any plot to murder or hire a killer for financial
gain.

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Opinion of the Court by Kruger, J.

Ultimately, for many of the same reasons the recording
was irrelevant to prove Shove’s state of mind at the time of the
murders, the admission of the recording for this point was
harmless. To be sure, the prosecutor evidently believed the
recording was useful evidence of Shove’s state of mind and
mentioned the recording in his opening statement and closing
argument. But the jury would have understood the limited
probativeness of the recording: as Shove’s counsel pointed out
in his guilt phase closing argument, it was made more than a
decade before the murders, in the recording Shove laid out no
concrete plan, his stories seemed fantastical, and he sounded
intoxicated.
For the same reasons, we discern no fundamental
unfairness in the admission of this evidence and reject Shove’s
federal due process claim. (See People v. Partida (2005)
37 Cal.4th 428, 439 [“the admission of evidence, even if
erroneous under state law, results in a due process violation
only if it makes the trial fundamentally unfair”].) Nor is there
any reasonable possibility that the jury would have rendered a
different penalty phase verdict absent the evidence. (See People
v. Pineda (2022) 13 Cal.5th 186, 225–226.) The recording was
not mentioned during the prosecution’s penalty phase argument
and “[i]n light of the other evidence before the jury, it is clear
beyond any reasonable doubt that [the admission of this
evidence] did not impact the outcome at the penalty phase.” (Id.
at p. 227.)
D. Admission of Evidence Concerning Use of Alias
Shove argues the trial court abused its discretion by
admitting evidence that he used the alias “Tony Bonanno.”
Shove contends that the evidence was irrelevant and highly
inflammatory, resulting in the violation of the Evidence Code
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 PEOPLE v. SHOVE
Opinion of the Court by Kruger, J.

and his constitutional rights to a fair trial, the right to due
process, and a reliable death judgment. We see no error.
1. Background
Before opening statements, Shove’s counsel objected to the
prosecutor referring to Shove as “Tony Bonanno.” The
prosecutor responded that several witnesses knew Shove as
Tony Bonanno or that he used the alias, and that “[t]his whole
mystique that he tries to create in intimidating witnesses is to
say that he’s a mafia man and he’s Tony Bonanno.” The trial
court overruled the objection.
The prosecutor repeatedly referenced the alias in his
opening statement, explaining that witnesses would testify that
Shove consistently used the name and “depending with whom
he’s speaking, he’s either connected to the Italian mafia, the
Russian mafia, or the Mexican mafia, but that it a consistent
theme of Mr. Shove, Mr. Bonanno, in his scheme to exploit and
intimidate others to do his dirty work for him.”
Stanley Steves testified that Shove “always asked me to
call him Tony . . . Bonanno,” that he had heard Shove refer to
himself as such to others, and that Shove stated on multiple
occasions and to others that he knew people in the mafia.
Shove’s ex-wife, R.H., testified that Shove often referred to
himself as Tony Bonanno, would receive phone calls asking for
Tony Bonanno, and stated that he had mafia “connections,” had
done legal work for the “Bonnano Family,” and was “basically
their private attorney.” Shove’s daughter also heard Shove refer
to himself as Tony Bonanno and he would commonly reference
his mafia connections. Defense witness J.M. stated that he
knew Shove as “Tony Bonanno” and introduced Shove to Hardin
as such. J.M. stated that the Bonannos were a mafia family and
that he “wasn’t sure that [Shove] wasn’t a Bonnano at the time.”
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The prosecutor again referenced the Bonanno alias during
closing argument. The prosecutor argued that Shove used the
alias and claimed to be part of the mafia “to intimidate people,
to let them think that he has some kind of power and influence
and connections.”
At the penalty phase, Shove’s stepson testified that “we
always called [Shove] Tony as a term of endearment” and that
Shove used the alias “quite frequently” and said it was his
“business name.” Shove’s wife testified that Shove told her his
legal name and his alias and that “[t]hey call me Tony over
here.” The prosecutor twice referenced the alias in penalty
phase closing argument.
2. Discussion
Shove contends that his use of the alias was irrelevant
because his identity was not at issue at trial, it was not relevant
to any other material fact in the case, and it was otherwise far
more prejudicial than probative. We disagree.
We agree that the alias had minimal probative value as to
identity. Though Steves and J.M. knew Shove as Tony Bonanno,
each was able to identify Shove at trial by his legal name
without reference to his alias. (See People v. Lee (2011)
51 Cal.4th 620, 643 (Lee) [“evidence of [the defendant’s]
nickname was cumulative of other evidence of identity and
therefore had minimal probative value”]; cf. People v. Brown
(2003) 31 Cal.4th 518, 551 (Brown) [“sometimes reference to
defendant’s nickname was necessary to render a witness’s
testimony understandable,” and because identity was at issue,
trial court did not err in “acquiescing in the inevitability that it
would come out before the jury”].)
But we disagree that the alias was not relevant to any
other issue in the case. It was relevant to Shove’s state of mind
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or intent with respect to the charged offenses. Indeed, the
prosecution’s primary reason for introducing evidence regarding
the alias was to establish that Shove cultivated a “mystique” of
being a “mafia man” to intimidate others, including the other
participants in the scheme. Shove argues that no witnesses
other than Vann stated that Shove intimidated them, and that
Vann was only aware that Shove referred to himself as “Tony”
and was unaware of his use of the Bonanno surname. But
Steves knew of the surname and testified that he was afraid of
Shove and that he did not ask Shove whether he was involved
in the murders because Steves “did not want to end up like
[Hubert].” J.M. told a defense investigator, “I hope, based on
what I have said, he doesn’t have anybody on the outside that
could kill me.” Further, witness testimony demonstrates that
the alias was part and parcel of Shove’s claimed mafia
connections, which Shove deployed to persuade and intimidate
others.11 (See Lee, supra, 51 Cal.4th at p. 643 [defendant’s
nickname “Point Blank” was “relevant and extremely probative
with regard to the intent with which defendant shot [the victim]
and whether the killing was premeditated and deliberate”];
People v. Allen (1986) 42 Cal.3d 1222, 1271 [frequent boasts that
defendant “previously had, and could then order, people killed,”
were concededly relevant, and details of defendant’s prior

11
Shove contends that the prosecutor only argued in the
trial court that Shove used the alias to intimidate, not that it
was relevant to prove his state of mind. We understand the
prosecution’s proffer of intimidation evidence as also relevant to
Shove’s state of mind. In any event, inapplicable exceptions
notwithstanding, “[i]f a judgment rests on admissible evidence
it will not be reversed because the trial court admitted that
evidence upon a different theory, a mistaken theory, or one not
raised below.” (People v. Brown (2004) 33 Cal.4th 892, 901.)
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criminal acts were “relevant to establishing defendant’s identity
as the mastermind of the murders and conspiracy and his intent
in those crimes”]; id. at p. 1272 [it was not misconduct for a
prosecutor to discuss defendant’s “ ‘boasts’ and ‘threats’ used
repeatedly by defendant to create a mystique to keep those
working for him from talking”].)
Shove also argues the probative value of this evidence was
substantially outweighed by the risk of undue prejudice. We
disagree. We recognize the potential prejudice in that a jury
might associate the use of the alias with criminal conduct. (See,
e.g., People v. Pensinger (1991) 52 Cal.3d 1210, 1253
[recognizing that if a charging document “uses what are
obviously criminal aliases . . . without some good reason, there
could be prejudicial error”].) But that was precisely Shove’s
intent in using the alias and underscores its relevance: Shove’s
use of the name and its association with the mafia evidences an
intent to intimidate others into doing what he wanted. Notably,
Shove does not challenge the evidence that he claimed mafia
connections. To the extent Shove raises concerns that the jury
would think he was actually connected to an organized crime
family, we see no such danger. The jury was aware that
detectives found no evidence that Shove was connected to any
mafia and the prosecutor made clear that such evidence was not
introduced to demonstrate that Shove was actually what he
purported to be, but that it was part of his campaign to
intimidate and persuade others. The jury was also aware that
Shove made other fantastical claims, such as that he was also
associated with the Russian and Mexican mafia or was a CIA
agent. Thus, there is no substantial likelihood that the jury
would have used this evidence for an illegitimate purpose
(People v. Doolin (2009) 45 Cal.4th 390, 439), and the trial court

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did not abuse its discretion in admitting it. (See People v. Nadey
(2024) 16 Cal.5th 102, 152 (Nadey) [in applying Evid. Code,
§ 352, “prejudicial” is not synonymous with “damaging,” and
“that evidence, or an inference drawn therefrom, is harmful to
the defendant’s case does not mean the evidence is unfairly
prejudicial”].)
E. Batson/Wheeler Claim
Shove contends that the prosecution improperly exercised
peremptory challenges against Black prospective jurors in
violation of his state and federal constitutional rights,
mandating reversal of his conviction and judgment. The claim
fails.
1. Background
During jury selection, after the prosecution exercised its
eighth peremptory challenge, Shove’s counsel asked to approach
the bench. At sidebar, Hardin’s counsel made a motion under
Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler
(1978) 22 Cal.3d 258, stating, “I believe at this point, if my math
is correct, in four out of the first six peremptories, the
prosecution has exercised — four out of the first six have been
[Black].” The court interjected, “I think that they actually
exercised eight peremptories,” to which Hardin’s counsel stated:
“I thought — okay. Four out of the first eight then.” The court
then asked which prosecutor “is going to respond.” When one
prosecutor stated that she would, the court replied, “Okay.”
In response to the motion by Hardin’s counsel, the
prosecutor began recalling the prosecution’s eight peremptory
challenges in order: “The first person we dismissed was a Black
male. The second I believe was a White female. The third — I
am trying to picture these people — this is a woman that,

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regarding the death penalty . . . .” Court and counsel confirmed
that the prosecutor was referring to Prospective Juror No. 218,
a Black female, and the prosecutor then proffered reasons for
exercising the challenge. The court stated: “Okay. Next?” The
prosecutor then continued to recount the rest of the peremptory
challenges chronologically. In this discussion, the prosecutor
identified a total of five, not four, Black jurors. When the
challenge involved a Black prospective juror, the prosecutor
offered explanations for the challenge. The prosecutor never
discussed the basis of the first peremptory challenge, which had
been made against Prospective Juror No. 206. Shove’s counsel
did not request reasons concerning Prospective Juror No. 206,
nor did Shove’s counsel raise any concern with any of the
proffered reasons concerning the other jurors.
After the prosecutor finished addressing the eighth
peremptory challenge, the court ruled as follows: “I am going to
find — I didn’t find a prima facie case, and I am not finding a
prima facie case. However, I did allow the prosecution to state
the reasons for the exercise of the challenges. And I do believe
that the reasons that have been indicated for the
African/American jurors that have been excused are race-
neutral reasons, and I am denying the Wheeler motion at this
time.”
2. Discussion
“In general, parties may exercise a peremptory challenge
‘ “for any permissible reason or no reason at all” ’ [citations], but
the federal and state Constitutions prohibit their use to exclude
prospective jurors based on race . . . .” (Nadey, supra, 16 Cal.5th
at p. 124.) The well-established framework for analyzing a
Batson/Wheeler challenge proceeds in three stages. (People v.
Krebs (2019) 8 Cal.5th 265, 289 (Krebs).) “ ‘ “ ‘First, the
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defendant must make a prima facie showing that the
prosecution exercised a challenge based on impermissible
criteria. Second, if the trial court finds a prima facie case, then
the prosecution must offer nondiscriminatory reasons for the
challenge. Third, the trial court must determine whether the
prosecution’s offered justification is credible and whether, in
light of all relevant circumstances, the defendant has shown
purposeful race discrimination. [Citation.] “The ultimate
burden of persuasion regarding [discriminatory] motivation
rests with, and never shifts from, the [defendant].” ’ ” ’ ” (People
v. Ramirez (2022) 13 Cal.5th 997, 1088 (Ramirez).)
a. First or third stage analysis
At the outset, the parties debate whether we should
review the trial court’s ruling at the first or third stage of the
Batson/Wheeler analysis. Much of the parties’ debate revolves
around whether the trial court solicited explanations for the
strikes. As Shove notes, “[w]hen a trial court solicits an
explanation of the strike without first declaring its views on the
first stage, we infer an ‘implied prima facie finding’ of
discrimination and proceed directly to review of the ultimate
question of purposeful discrimination.” (People v. Scott (2015)
61 Cal.4th 363, 387, fn. 1 (Scott); accord, People v. Arias (1996)
13 Cal.4th 92, 135.) Shove argues that because the trial court
did not determine whether the defense had established a prima
facie case until after the prosecutor stated the reasons for four
of the five strikes, there was an implied prima facie finding and
we should therefore treat this as a third-stage case. The
Attorney General, for his part, argues that this case requires a
first-stage analysis because the record suggests that the parties
believed the purpose of the discussion was to clarify the race and
gender of the prospective jurors that had been struck by the
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prosecution to that point. In the Attorney General’s view, the
fact that the prosecutor mentioned reasons for dismissing some
of the jurors while clarifying the race and gender of each
challenged juror does not transform this into a third-stage case.
So far as the record reveals, the court never solicited
reasons from the prosecutor. The record indicates that there
was uncertainty over how many peremptory challenges had
been exercised against Black prospective jurors. The court
asked which prosecutor was “going to respond,” at which point
one of the prosecutors began to recount the challenges. Partway
through the recitation, she began to volunteer the prosecution’s
reasons for striking the prospective jurors in question. But
whether or not the trial court solicited the prosecutor’s reasons
does not end the inquiry. We have said that when a trial court
merely “listens to the prosecutor’s reasons before purporting to
rule on the first-stage inquiry, ‘we infer an “implied prima facie
finding” of discrimination and proceed directly to review of the
ultimate question of purposeful discrimination.’ ” (Krebs, supra,
8 Cal.5th at p. 290, italics added; see People v. Hardy (2018)
5 Cal.5th 56, 75–76 (Hardy); cf. Scott, supra, 61 Cal.4th at
p. 389 [“when the trial court finds there is no prima facie case of
discrimination before the proponent of the strike . . . has
volunteered a statement of reasons, then the appellate court
should begin its review with the first-stage ruling” (italics
added)].) Here, the trial court received the prosecutor’s
justifications for the challenges without first declaring its views
under the first step of the inquiry; it found no prima facie case
only after having permitted the prosecutor to offer reasons for
most of the prospective jurors in question.
We have also held that where a trial court finds “that
defendant did not make a prima facie showing of group bias and

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also . . . passes judgment on the ultimate question of purposeful
discrimination, the case is described as a first stage/third stage
Batson/Wheeler hybrid, and the question whether a defendant
established a prima facie case of group bias is rendered moot.”
(Chism, supra, 58 Cal.4th at p. 1314; see also Riccardi, supra,
54 Cal.4th at p. 786; People v. Mills (2010) 48 Cal.4th 158, 173–
174 (Mills).) That appears to be what happened here; the trial
court ultimately resolved the Batson/Wheeler challenge both by
finding no prima facie case and by concluding, after considering
the prosecutor’s reasons, that discrimination had not been
shown. Accordingly, here, for the four challenged jurors for
whom the prosecutor proffered justifications, we proceed
directly to the third stage of the analysis. Proceeding to this
stage does not alter our conclusion that the trial court did not
err in allowing the peremptory strikes. (See Krebs, supra,
8 Cal.5th at p. 290 [“Even were we to assume — as defendant
urges — that his challenge has arrived at the third stage, still
we would find against him”].)
There is, however, a wrinkle: The prosecutor did not
proffer a reason for the first juror excused, Prospective Juror
No. 206. In recounting the strikes, the prosecutor began by
recalling that her first strike was against a Black male
(Prospective Juror No. 206), but she provided no reason for the
challenge, nor did the court ask for one, before she continued to
recount her challenges. As she continued, the prosecutor began
to proffer reasons for striking the prospective jurors in question
without having ever volunteered a reason for striking
Prospective Juror No. 206, and the trial court generally
concluded that there was no prima facie showing in the absence
of any justification with respect to Prospective Juror No. 206.
And although the court did ultimately receive and rule on the

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prosecutor’s race-neutral reasons for her other four challenges
against Black prospective jurors, that ruling could not have
addressed reasons related to Prospective Juror No. 206 because
none had been given. Therefore, none of the reasons why we
engage in a third-stage review of the strikes of the other jurors
applies in the case of Prospective Juror No. 206. Under the
circumstances, we review the court’s denial of Shove’s
Batson/Wheeler motion as to Prospective Juror No. 206 as a
first-stage denial. (Cf. People v. Montes (2014) 58 Cal.4th 809,
854 (Montes) [where court found no prima facie case as to two
prospective jurors, analyzing challenge to one juror as a first-
stage denial, while analyzing the other at the third stage “out of
an abundance of caution, and because the prosecutor proffered
race-neutral reasons that the trial court ruled upon”].)12

12
Our dissenting colleagues would instead review the denial
of the Batson/Wheeler motion as to Prospective Juror No. 206
as a third-stage denial. On their approach, because the
prosecutor did not volunteer a reason for striking Prospective
Juror No. 206, and because no reason is now likely to be
forthcoming some decades later, they would find
Batson/Wheeler error and reverse the judgment in its entirety.
The dissent’s approach starts from the premise that “the
trial court’s third stage ruling, assuming one occurred, intended
to address all targeted jurors despite the fact the prosecution
never actually addressed one of the strikes.” (Dis. opn. of Evans,
J., post, at p. 16.) We cannot agree. Certainly the trial court’s
first stage ruling — that no prima facie case had been
established — was intended to address all targeted jurors,
including Prospective Juror No. 206. But we consider it unlikely
that when the trial court went on to rule on the prosecutor’s
reasons at the third stage, it intended to rule on reasons the
prosecutor had never, in fact, proffered.

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b. First stage review — Prospective Juror No. 206
“A prima facie case of racial discrimination in the use of
peremptory challenges is established if the totality of the
relevant facts ‘ “gives rise to an inference of discriminatory
purpose.” ’ ” (Scott, supra, 61 Cal.4th at p. 384.) We review the
trial court’s first-stage denial “considering . . . whether
substantial evidence supports the trial court’s conclusion.”
(People v. Battle (2021) 11 Cal.5th 749, 772 (Battle).) “We
examine the entire record before the trial court to determine
whether it supports an inference of such group bias. [Citation.]
Certain types of evidence are especially relevant to this inquiry,
including whether the prosecutor has struck most or all of the
members of the venire from an identified group, whether a party
has used a disproportionate number of strikes against members
of that group, whether the party has engaged prospective jurors
of that group in only desultory voir dire, whether the defendant
is a member of that group, and whether the victim is a member

The dissent also criticizes our citation to Montes to support
analyzing Prospective Juror No. 206 at the first stage while
analyzing the other jurors at the third stage. (Dis. opn. of
Evans, J., post, at pp. 16–17.) We agree that Montes is
distinguishable in that there, the trial court appeared to rule
that a prima facie case had not been made as to two prospective
jurors before the prosecutor offered justifications for the strikes.
But Montes is nonetheless instructive. It addressed a situation
where we analyzed the strikes for those two prospective jurors
at different stages and determined not to conduct a third-stage
analysis with respect to one of the prospective jurors because the
prosecutor never provided, and the trial court never ruled on,
reasons for striking that prospective juror. (Montes, supra,
58 Cal.4th at p. 853.) Similarly here, the trial court never asked
for a reason as to Prospective Juror No. 206, the prosecutor
never volunteered one, and the court ultimately found no prima
facie case.
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of the group in which the majority of the remaining jurors
belong.” (Id. at p. 773.)
At the outset, we have previously said that a defendant’s
race or a case with racial overtones may raise heightened
concerns about whether a challenge was racially motivated.
(See Hardy, supra, 5 Cal.5th at p. 78; People v. O’Malley (2016)
62 Cal.4th 944, 980–981; People v. Farnam (2002) 28 Cal.4th
107, 135–136 (Farnam).) Although Shove and the victims are
White, which might “lessen[] concerns that the prosecutor had
an improper motive for excluding” Black prospective jurors in
his case (Ramirez, supra, 13 Cal.5th at p. 1089), Shove observes
that the jury was also being selected for Hardin, who is Black.
Although the identity of the victims and the defendants
certainly weighs in the analysis, we conclude that the totality of
the circumstances supports the trial court’s conclusion that no
prima facie case of discrimination was established.
“[A]lthough the record here does not disclose the racial or
ethnic makeup of the juror pool, nothing suggests the prosecutor
‘ “ ‘struck most or all’ ” ’ [citation] of the African-Americans from
the venire.” (People v. Taylor (2010) 48 Cal.4th 574, 615
(Taylor).) In fact, the record affirmatively indicates this was not
the case. The jury ultimately included five Black jurors, four
Asian jurors, two Hispanic jurors, and one White juror. Of the
six alternate jurors, three were Black, two were White, and one
was Asian. Thus, at the time of the challenged strikes, there
were at least eight other Black prospective jurors in the
courtroom who were ultimately seated as jurors or alternate
jurors.
The prosecution did exercise five of its first eight
challenges against Black prospective jurors. But “[w]hile the
exclusion rate is important, considered in context it does not

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give rise to an inference the excusals were motivated by racial
bias . . . .” (People v. Holmes, McClain and Newborn (2022)
12 Cal.5th 719, 762 (Holmes, McClain); accord, e.g., People v.
Streeter (2012) 54 Cal.4th 205, 223 [three of five peremptory
challenges against Black jurors failed to establish a prima facie
case]; see also People v. Clark (2011) 52 Cal.4th 856, 905 (Clark)
[prosecutor’s peremptory challenges against four of five African-
American jurors “[s]tanding alone” failed to raise an inference
of discrimination]; Farnam, supra, 28 Cal.4th at pp. 136–137
[same].) “We have often underscored that ‘ultimate inclusion on
the jury of members of the group allegedly targeted by
discrimination indicates “ ‘good faith’ ” in the use of peremptory
challenges, and may show under all the circumstances that no
Wheeler/Batson violation occurred.’ ” (Battle, supra, 11 Cal.5th
at p. 777; see id. at pp. 777–778 [same principle applies when
jurors are seated as alternates]; Holmes, McClain, at pp. 763–
764.) Although the inclusion of these jurors on the jury “is ‘not
conclusive’ to our inquiry, because the ‘[e]xclusion of even one
prospective juror for reasons impermissible under Batson and
Wheeler constitutes structural error’ regardless of how many
other venire members were not so erroneously excluded[,] . . . a
prosecutor’s acceptance of a jury with members of a group that
the prosecutor allegedly discriminated against ‘strongly
suggests that [bias] was not a motive in his challenge’ and, as
such, is ‘an appropriate factor . . . to consider’ in the
Batson/Wheeler analysis.” (Krebs, supra, 8 Cal.5th at p. 292; see
also People v. Reed (2018) 4 Cal.5th 989, 1000–1001 (Reed).)
Here, Black jurors were the most represented racial group
on the jury, comprising nearly half of all seated jurors. The
composition of the final jury tends to dispel any inference of bias
that might arise from the pattern of initial strikes. (See Holmes,

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McClain, supra, 12 Cal.5th at p. 765 [noting a final jury
composition of five Black, five White, and two Hispanic
individuals]; People v. McDaniel (2021) 12 Cal.5th 97, 124
(McDaniel) [final jury composition suggested that the prosecutor
did not harbor bias against Black jurors where “[d]espite the
relatively high rate of strikes against Black jurors at the time of
the motion, the final racial composition of the jury was diverse
and contained more Black jurors than jurors of any other race”].)
Additional information about the course of jury selection tends
to reinforce the conclusion. Of the five seated Black jurors, four
were among the first 27 prospective jurors selected for voir dire.
Two of those jurors were part of the initial randomly selected 12
prospective jurors and remained in their seats through two
rounds of peremptory challenges. (See Reed, supra, 4 Cal.5th at
p. 1000 [record supported trial court’s first-stage denial where,
inter alia, “the prosecutor first signaled his acceptance of a jury
at a time when it contained two [Black] jurors, and three [Black]
jurors ultimately sat on the jury”].) When the prosecution
exercised its third and fourth peremptory challenges against
Prospective Juror Nos. 218 and 202 at issue here, two other
seated Black jurors were next in line to replace them. (See id.
at pp. 1000–1001 [“Most notably, the prosecutor’s decision to
strike one [Black] juror while accepting another who replaced
her suggests that nonrace related differences between the
jurors, rather than race, explain the prosecutor’s actions”].) The
final seated Black juror was among the 15 additional
prospective jurors selected for voir dire after the first round of
peremptory challenges and replaced a prospective juror excused
by the prosecution on the panel of 12 during the second round of
peremptory challenges. Immediately thereafter, Hardin’s
counsel, Shove’s counsel, and the prosecution accepted the

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panel, and the jury was sworn. Before that, the prosecution
accepted the panel three times. When the jury was sworn, the
prosecutors had exercised only 12 of their 30 available
peremptory challenges. (See Code Civ. Proc., § 231, subd. (a);
McDaniel, at p. 124 [“[T]he fact that the prosecution accepted a
panel with three Black jurors when it had enough remaining
peremptory challenges to strike them suggests that the
prosecutor did not harbor bias against Black jurors”].)13
Shove contends that the prosecutor’s failure to provide any
reasons for striking Prospective Juror No. 206 “provides strong
support that the strike was based on race.” But unlike in the

13
The dissent contends “that there exists significant
independent support for a prima facie finding of discrimination
here,” noting the high strike rate against Black prospective
jurors, and challenging the reliance on the ultimate composition
of the jury, observing that “this postruling information was not
before the trial court at the time it made the ruling now under
review.” (Dis. opn. of Evans, J., post, at p. 5, fn. 1.) But our
precedent is clear that: (1) though relevant, the strike rate alone
does not establish a prima facie case on appellate review, and
(2) our review on appeal can properly consider postruling
information, including the ultimate composition of the jury, in
the totality of the circumstances, even though such information
is not generally dispositive. (See Holmes, McClain, supra,
12 Cal.5th at p. 761 [50 percent strike rate was “important and
reflect an obvious disparity. But, as with most relevant factors,
they must be considered in context”]; People v. Sánchez (2016)
63 Cal.4th 411, 439 [strike rate of 40 percent, “[c]onsidered
alone . . . might suggest a discriminatory purpose, but under the
totality of circumstances, they do not”]; McDaniel, supra,
12 Cal.5th at p. 124 [final jury composition suggested that the
prosecutor did not harbor bias against Black jurors where
“[d]espite the relatively high rate of strikes against Black jurors
at the time of the motion, the final racial composition of the jury
was diverse and contained more Black jurors than jurors of any
other race”].)
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cases on which Shove relies for this proposition, the prosecutor
here did not “decline[]” or “refus[e]” a judge’s request to justify
her challenges (Johnson v. California (2005) 545 U.S. 162, 171,
fn. 6), nor did she claim to have no memory of her reasons (see
Paulino v. Harrison (9th Cir. 2008) 542 F.3d 692, 702–703).
Rather, as discussed, the court generally requested a response
to the Batson/Wheeler motion, and the prosecutor recounted the
challenges, beginning with Prospective Juror No. 206; as she
continued, she then began volunteering reasons for striking the
other jurors. The defense raised no concerns about the omission
at the time. Under the circumstances, the prosecutor’s omission
does not support an inference of bias.
Finally, Shove contends that the prosecutor conducted
only desultory voir dire of Prospective Juror No. 206 before
striking him; according to Shove, the nature of the voir dire
supports an inference of bias. For several reasons, we are
unpersuaded. First, where, as here, the attorneys received the
jurors’ questionnaires prior to commencement of voir dire, “an
attorney’s failure to engage jurors in voir dire is less significant
than when the attorneys know nothing about the jurors prior to
striking them. [Citation.] Accordingly, we accord no great
weight to the prosecutor’s limited voir dire.” (Reed, supra,
4 Cal.5th at p. 1001; see also Clark, supra, 52 Cal.4th at
pp. 906–907 [prosecutor asking few questions before excusing a
prospective juror “is of limited significance” when “the
prosecutor reviewed the jurors’ questionnaire answers and was
able to observe their responses and demeanor, first, during
extensive individual questioning by the court and later, during
group voir dire”].) Moreover, this juror’s questioning was not as
cursory as Shove contends. The court questioned Prospective
Juror No. 206 concerning his death penalty views during death

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qualification. During voir dire, this juror had an extensive
colloquy with the court concerning a juror’s duty not to discuss
the case. Shove’s and Hardin’s counsel thoroughly questioned
Prospective Juror No. 206 concerning his prior jury service and
his ability to judge the credibility of witnesses and follow jury
instructions, and the prosecution questioned him concerning
direct and circumstantial evidence.
In sum, substantial evidence supports the trial court’s
determination that the defense failed to make a prima facie case
of racial bias in excusing Prospective Juror No. 206.
Shove acknowledges that he cannot establish, for purposes
of mounting a challenge to a first-stage denial, the proportion of
Black prospective jurors struck compared to the venire, nor
whether the victims are members of the group to which the
majority of the remaining jurors belong. He contends that he
must be permitted additional factual exploration of these
matters if he is to receive effective appellate review. Defense
counsel made no effort to create a record of these matters during
jury selection. (See Montes, supra, 58 Cal.4th at p. 853
[“Wheeler requires that the moving party make as complete a
record as feasible, and the general rules of appellate review
require appellants to demonstrate error”].) But during a
postjudgment record correction process while this appeal was
pending, the defense moved to settle the race of all prospective
jurors by requesting photographs of the seated and prospective
jurors from the Department of Motor Vehicles (DMV). The trial
court denied that request but, using its trial notes, settled the
racial identity of the seated jurors and alternates so a third-
stage comparative juror analysis could be attempted. Shove
later moved this court to vacate certification of the record or

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alternatively to correct, augment, and settle the record, again
seeking DMV photographs of the entire venire, which we denied.
Shove now contends that the denial of the request for the
DMV photographs has resulted in the denial of meaningful
appellate review. We disagree and also deny Shove’s request to
remand this case to the superior court to augment the record. If
there was additional information Shove’s counsel wished to
adduce in support of the Batson/Wheeler motion at trial, it was
his responsibility to say so at the time. (See People v. Griffin
(2004) 33 Cal.4th 536, 554, fn. 4 [“If the record on appeal is
inadequate, it is defendant who is responsible, inasmuch as he
failed to include in the oral proceedings at trial the information
that he improperly sought to insert through a settled
statement”]; People v. Rhoades (2019) 8 Cal.5th 393, 430, fn. 15
[“it was defendant’s burden to make the record necessary to
support his [Batson/Wheeler] motion” at the prima facie stage].)
Shove may, however, present any relevant extra-record
materials in support of this claim in a petition for writ of habeas
corpus.
c. Third stage review — Prospective Juror Nos.
218, 202, 215, 7
We then turn to the prospective jurors as to whom the
prosecutor did offer reasons. As to Prospective Juror Nos. 218,
202, 215, and 7, engaging in third-stage review means that “ ‘we
must determine whether the trial court correctly ruled that the
defense did not demonstrate discriminatory purpose . . . . The
prosecutor’s justification does not have to support a challenge
for cause, and even a trivial reason, if genuine and race neutral,
is sufficient. The inquiry is focused on whether the proffered
neutral reasons are subjectively genuine, not on how objectively
reasonable they are. The reasons need only be sincere and

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nondiscriminatory.” (Hardy, supra, 5 Cal.5th at p. 76.)
“Comparative juror analysis, comparing questionnaire and voir
dire responses of challenged jurors with those of similar jurors
from a different racial group, must also be considered upon
review of these claims. [Citation.] While not necessarily
dispositive, this analysis may offer relevant circumstantial
evidence bearing on the genuineness of the prosecutor’s race-
neutral justifications. [Citation.] Compared jurors need not be
identical to challenged jurors in all respects. [Citations.] But
‘[i]f a prosecutor’s proffered reason for striking a [Black] panelist
applies just as well to an otherwise-similar nonblack who is
permitted to serve, that is evidence tending to prove purposeful
discrimination.’ ” (Nadey, supra, 16 Cal.5th at p. 126.)
Our cases have held that, in fulfilling its obligation to
“ ‘make “a sincere and reasoned attempt to evaluate the
prosecutor’s explanation” ’ ”a “trial court is not required to make
specific or detailed comments for the record to justify every
instance in which a prosecutor’s race-neutral reason for
exercising a peremptory challenge is being accepted by the court
as genuine.” (People v. Reynoso (2003) 31 Cal.4th 903, 919.)
Instead, where “the trial court is fully apprised of the nature of
the defense challenge to the prosecutor’s exercise of a particular
peremptory challenge, where the prosecutor’s reasons for
excusing the juror are neither contradicted by the record nor
inherently implausible [citation], and where nothing in the
record is in conflict with the usual presumptions to be drawn,
i.e., that all peremptory challenges have been exercised in a
constitutional manner, and that the trial court has properly
made a sincere and reasoned evaluation of the prosecutor’s
reasons for exercising his peremptory challenges, then those
presumptions may be relied upon, and a Batson/Wheeler motion

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denied, notwithstanding that the record does not contain
detailed findings regarding the reasons for the exercise of each
such peremptory challenge.” (Id. at p. 929; accord, e.g., People
v. Aguirre (2025) 18 Cal.5th 629, 662 (Aguirre).)14 But “[f]urther
inquiry by the trial court may be necessary for a reviewing court
to accord deference ‘[w]hen “the proffered reasons lack[]
inherent plausibility or [are] contradicted by the record.” ’ ”
(Aguirre, at p. 663.)
Shove argues that we should afford no deference to the
trial court’s findings in this case because there is no indication
that the trial court evaluated whether the prosecutor’s
volunteered explanations were credible. We disagree. It is true
the trial court’s comments about the race neutrality of the
prosecutor’s reasons did not explicitly address the prosecutor’s
credibility. But it is also true that the defense in this case did
not dispute the factual bases or sincerity of any of the

14
Shove argues that this approach is at odds with high court
rulings issued after Reynoso, pointing to the comparative juror
analyses conducted in Miller-El v. Dretke (2005) 545 U.S. 231,
241–252 (Miller-El) and Snyder v. Louisiana (2008) 552 U.S.
472, 483–484 as demonstrating the careful analysis of all
relevant circumstances trial courts must apply at the third
stage. But as Shove acknowledges, the high court in Miller-El
and Snyder did not establish any rules regarding the obligations
of a trial court in making a third-stage finding and the deference
owed thereto. Shove provides no persuasive reason to
reconsider our established precedent on this point.
We note that Code of Civil Procedure section 231.7,
subdivision (d)(1), as added by Assembly Bill No. 3070 (2019–
2020 Reg. Sess.), now requires a trial court to explain the
reasons for its ruling to an objection to a peremptory challenge
on the record. This statute applies only to trials in which jury
selection began on or after January 1, 2022, and so the
requirement is not at issue here. (Code Civ. Proc., § 231.7,
subd. (i).)
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prosecutor’s reasons, and, as explained below, the record raises
no significant questions in that regard. (See People v. Baker
(2021) 10 Cal.5th 1044, 1078–1079.) The trial court’s comments,
though quite brief, were comparable to those in other cases that
we have understood as implicitly ruling on the prosecutor’s
credibility. (See, e.g., Aguirre, supra, 18 Cal.5th at pp. 664–665
[“Given its natural meaning and viewed in context, the trial
court’s ruling that ‘[t]he question is whether or not there are any
race neutral grounds, and there appear to be race neutral
grounds,’ . . . reasonably reflected a finding that the prosecutor
was credible and that her peremptory challenge was not
motivated by discriminatory intent.”]; People v. Mai (2013)
57 Cal.4th 986, 1047 (Mai) [reaching similar conclusion where
the trial court said “ ‘that no discriminatory intent is inherent
in the explanations, and the reasons appear to be race neutral,
and on those grounds the court will deny the Wheeler motion’ ”].)
In any event, this is not a case that rises or falls on the degree
of deference we accord to the trial court’s third-stage ruling;
even if we were to conclude that the trial court’s ruling is
entitled to no deference, we would still conclude that no
Batson/Wheeler error has been established on this record.15

15
Relying on the United States Supreme Court’s recent
decision in Pitchford v. Cain (2026) ___ U.S. ___ [146 S.Ct. 1345]
(Pitchford), the dissent asserts that the trial court failed to make
a complete third-stage ruling, and that the judgment should be
reversed on that basis. (See dis. opn. of Evans, J., post, at pp. 2–
3, 6, 8–15.)
Shove himself has not raised Pitchford, and this case does
not resemble it in any event. In Pitchford, the issue was
whether the defendant “had waived his opportunity to rebut the
prosecutor’s race-neutral reasons as pretextual at Batson’s third

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step.” (Pitchford, supra, ___ U.S. at p. ___ [146 S.Ct. at p. 1349].)
In holding that the defendant had preserved his pretext
objection, the high court observed that “defense counsel must at
least have an opportunity to argue that the [prosecutor’s]
asserted race-neutral reasons” were pretextual, but in that case,
“whether due to confusion, oversight, an overly hurried jury
selection process, or some other cause, things broke down, and
the ordinary trial-court procedure for resolving Batson claims at
step three never occurred — notwithstanding the repeated
efforts of Pitchford’s counsel to pursue and preserve the Batson
objection.” (Id. at p. ___ [146 S.Ct. at p. 1353].)
Pitchford is inapplicable, first of all, because waiver is not
at issue here. (Accord Pitchford, supra, ___ U.S. at p. ___ (dis.
opn. of Gorsuch, J.) [146 S.Ct. at p. 1358] [“the Court issues a
narrow judgment, holding only that Mr. Pitchford did not waive
a step three Batson argument”].) And, to the extent Pitchford
can be read as commenting on a trial court’s duties at the third
stage of the Batson/Wheeler inquiry, its commentary addresses
circumstances not present in this case. In Pitchford, after ruling
that the prosecutor’s reasons were race-neutral, the trial court
launched into other court business; when defense counsel later
sought to raise the Batson issue again at the close of jury
selection, “the trial court twice cut off defense counsel and ended
the inquiry before counsel could try to rebut as pretextual the
race-neutral reasons articulated by the prosecution . . . .”
(Pitchford, supra, ___ U.S. at p. ___ [146 S.Ct. at p. 1350].)
Defense counsel also filed a motion for a new trial “advanc[ing]
the argument that he was prevented from making during jury
selection — that the prosecutor’s stated reasons for the
peremptory challenges were pretextual.” (Ibid.)
Here, by contrast, the trial court concluded both that no
prima facie case had been established and, recognizing that it
had permitted the prosecutor to offer reasons as to some of the
jurors, that those reasons were race-neutral, such that the
Batson/Wheeler motion would be denied. In the face of this
ruling, the defense remained resolutely silent — never
attempting to rebut, either during jury selection or afterwards,
the prosecution’s justifications for the strikes. (Cf. Mai, supra,

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(1) Prospective Juror No. 218
We begin with the first prospective juror struck by the
prosecution, Prospective Juror No. 218. The prosecutor said she

57 Cal.4th at p. 1049, fn. 26 [“the burden is always on the party
claiming discrimination to establish it”].) Unlike in Pitchford,
there is no indication that the trial court in any way
“ ‘thwarted’ ” or “prevented” counsel from raising any such
concerns. (Pitchford, supra, ___ U.S. at pp. ___, ___, fn. 3 [146
S.Ct. at pp. 1351, 1352, fn. 3].) The mere fact that the trial court
moved forward with jury selection after ruling on the
Batson/Wheeler motion is hardly surprising and does not
evidence the kind of procedural breakdown that concerned the
court in Pitchford. (Cf. id. at p. ___ [146 S.Ct. at p. 1353].)
The dissent contends that the trial court’s remark that the
proffered justifications were “race-neutral” failed to make a
complete third stage finding because the trial court did not
determine that the prosecution’s nondiscriminatory reasons
were genuine. (Dis. opn. of Evans, J., post, at pp. 2–3, 7.) But
our precedent recognizes that trial courts have frequently used
the term “race neutral” as a shorthand for the conclusion that
the striking party’s actual reasons for striking the juror were
not racially discriminatory. (See Aguirre, supra, 18 Cal.5th at
pp. 664–665.) Pitchford demonstrates that a finding that
reasons are “race neutral” does not always reflect careful
consideration of the ultimate issue under Batson. On this point,
we agree with the dissent. (Dis. opn. of Evans, J., post, at p. 14.)
But nothing in Pitchford calls into question the proposition that
the phrase “race neutral” often is, in fact, used to convey that
the trial court has not been persuaded that the striking party’s
actual reasons were racially discriminatory. In Pitchford, the
trial court could not have reached that conclusion, because it
had not given the defense the opportunity to present available
pretext arguments at Batson’s step three. But the same is not
true here. Given that the defense in this case made no effort, at
any time, to argue pretext to the trial court, we see no reason to
doubt that when the trial court ruled on the prosecutor’s reasons
in denying Hardin’s Batson/Wheeler motion, it intended to, and
did, issue a third-stage ruling on the ultimate issue of
discrimination.
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challenged Prospective Juror No. 218 because: “On the
questionnaire she indicated, regarding the death penalty, that
she was not sure if we should have the death penalty. She also
said she would have problems regarding her religious beliefs.
She also said that she would pray for direction from God
regarding the verdict in this case and regarding what she would
do. She also indicated numerous contacts in terms of people
incarcerated. Her nephew did a robbery with a gun . . . her niece
was murdered by a boyfriend. And she, today, when questioned
by the defense, said she did not want to sit as a juror; that it
would be too long, and that she didn’t want to see the pictures.
We didn’t feel like she was going to be able to impose the death
penalty if she thought it was right, based on her answers. And
we also felt that she would have a bias against law-enforcement
for some of her contacts with police over the years.”
The record supports the prosecutor’s reasons relating to
the death penalty. (Hardy, supra, 5 Cal.5th at p. 79.) When
asked on the questionnaire whether she believed California
should have the death penalty, Prospective Juror No. 218 did
not indicate either “yes” or “no” but wrote: “I am not sure if
anyone should have the death penalty.” As to whether she
would be able to vote for the death penalty if she believed it
appropriate, she answered “yes,” but explained, “I could say yes
but it would be a hard thing to do — having 11 others in
agreement will help.” When asked whether she had any
religious beliefs which would make it difficult or impossible for
her to return a verdict of death, she answered “yes,” and
explained, “[m]y religious beliefs would compel me to pray about
this person and ask God for direction.” During the death
qualification process, the court asked whether she would “expect
to get some kind of communication through prayer as to how you

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should make your determination in this case,” to which
Prospective Juror No. 218 responded, “Yes, I would expect it.”
When pressed by the court whether she would base her decision
on the evidence and instructions or prayer, Prospective Juror
No. 218 stated that she “would be looking at the evidence that’s
presented . . . but I would be praying about the whole trial.” She
later stated, however, that she could vote for the death penalty.
“A juror’s reluctance to impose the death penalty has long
been considered a legitimate, race-neutral basis for excusal in a
capital case,” and “[w]e have repeatedly upheld peremptory
challenges to jurors whose reservations about the death penalty
are religious in nature.” (People v. Winbush (2017) 2 Cal.5th
402, 436 (Winbush); see also Montes, supra, 58 Cal.4th at p. 856
[peremptorily challenging prospective jurors with religious
views “that make it difficult for them to impose the death
penalty” is proper].) Although Prospective Juror No. 218’s
questionnaire indicated that she might be able to vote for the
death penalty, “ ‘neither the prosecutor nor the trial court [i]s
required to take the jurors’ answers at face value,’ ” and “[i]f
other statements or attitudes of the juror suggest that the juror
has ‘reservations or scruples’ about imposing the death penalty,
this demonstrated reluctance is a race-neutral reason that can
justify a peremptory challenge, even if it would not be sufficient
to support a challenge for cause.” (People v. Lomax (2010)
49 Cal.4th 530, 572 (Lomax).)
Additionally, as the prosecutor noted, Prospective Juror
No. 218 stated in voir dire that she did not want to sit on the
jury because the trial would be too long and “I just don’t really
want to hear all the details, and I don’t want to have to look at
pictures and that type of thing.” She later confirmed that she
was “a little bit uncomfortable” but could perform her obligation

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as a juror if she had to. Although not wanting to sit as a juror
on the case would be “a rather weak reason” in isolation, “it does
not stand alone” and was a legitimate race-neutral reason “to
add to the others.” (Hardy, supra, 5 Cal.5th at p. 82.)
Shove argues that because Prospective Juror No. 218’s
questionnaire reflected no contacts with law enforcement, there
was no support for the prosecutor’s final reason for striking her.
We disagree with the premise: Prospective Juror No. 218 said
on her questionnaire and on voir dire that her niece had been
murdered by a boyfriend and her nephew had been imprisoned
for armed robbery. The prosecutor’s statement referring to
Prospective Juror No. 218’s law enforcement contacts can fairly
be read as a reference to these experiences, through family
members, with the criminal justice system. (See Nadey, supra,
16 Cal.5th at p. 141 [noting that this court’s case law has
regarded “[a] close relative’s negative contact with the criminal
justice system” as a “race-neutral basis for excusal”].)
One might reasonably question whether these contacts,
without more, constituted adequate support for the prosecutor’s
concern that Prospective Juror No. 218 might have a bias
against law enforcement.16 But even if there was a deficiency in

16
Code of Civil Procedure section 231.7, as added by
Assembly Bill No. 3070 (2019–2020 Reg. Sess.), presumes
invalid a peremptory challenge exercised because, inter alia, a
prospective juror “[e]xpress[ed] a distrust of or ha[d] a negative
experience with law enforcement or the criminal legal system,”
or had “a close relationship with people who have been stopped,
arrested, or convicted of a crime.” (Code Civ. Proc., § 231.7,
subd. (e)(1), (3).) But again, this statute is inapplicable to this
case, as it applies only to jury selection proceedings after
January 1, 2022. (Id., subd. (i).)

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this respect, this was one of a number of reasons, and the
prosecutor did not place any special emphasis on it; the
prosecutor mentioned this concern only after mentioning their
concern that Prospective Juror No. 218’s religious and other
beliefs would prevent her from voting for the death penalty if
the evidence warranted it. The trial court’s task was to
“ ‘evaluate the attorney’s statement of reasons as a whole rather
than focus exclusively on one or two of the reasons offered.’ ”
(Nadey, supra, 16 Cal.5th at p. 137.) For reasons already
explained, the reasons, as a whole, do not suggest that the
prosecutor struck Prospective Juror No. 218 because of her race.
Comparative juror analysis does not compel a different
conclusion. Shove points to Juror No. 2 and Alternate Juror
No. 3, each of whom also knew people who had negative
experiences with law enforcement. Single-issue comparisons
among jurors “are not necessarily dispositive on the issue of
purposeful discrimination but rather, must be considered within
all of the relevant circumstances.” (Miles, supra, 9 Cal.5th at
p. 543, fn. 9.) “Although jurors need not be completely identical
for a comparison to be probative [citation], ‘they must be
materially similar in the respects significant to the prosecutor’s
stated basis for the challenge.’ ” (Winbush, supra, 2 Cal.5th at

Notwithstanding the Legislature’s determination that
such reasons are now to be treated as presumptively, but not
conclusively, invalid, we decline Shove’s invitation to apply such
a presumption retroactively to this case or reconsider our
precedent. The Legislature clearly stated the statute would
apply prospectively only and our precedent in this area informed
the parties’ positions and arguments below.
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p. 443.)17 Unlike Prospective Juror No. 218, Juror No. 2 and
Alternate Juror No. 3 indicated no religious reservations about
the death penalty and were otherwise unequivocal about their
ability to impose it. As such, these empaneled jurors had
materially different responses concerning the death penalty
than Prospective Juror No. 218, and “[a] prosecutor need not
strike every single juror with a particular trait, even those with
other redeeming qualities, to demonstrate that concerns about
the trait are genuine.” (Armstrong, supra, 6 Cal.5th at p. 780.)
Shove also contends that several non-Black seated jurors
also expressed noncommittal views regarding the death penalty.
But none of these jurors expressed any religious scruples with
the death penalty that would make it difficult or impossible for

17
We reject Shove’s contention that this approach is in
tension with the high court’s approach in conducting
comparative juror analysis. (See Winbush, supra, 2 Cal.5th at
pp. 490–491 (conc. opn. of Liu, J.).) Although the high court has
rejected “a rule that no comparison is probative unless the
situation of the individuals compared is identical in all respects”
(Miller-El, supra, 545 U.S. at p. 247, fn. 6), that does not mean
we must conclude there is error whenever a seated juror shares
a characteristic with an excused prospective juror regardless of
their other responses. (See Miles, supra, 9 Cal.5th at p. 543
[“ When a prosecutor states multiple reasons for challenging a
juror, a comparison between the challenged juror and a similar
nonchallenged juror in regard to any one of the prosecutor’s
stated reasons is relevant, but not necessarily dispositive, on the
issue of purposeful discrimination”].) Indeed, as the high court
observed, “potential jurors are not products of a set of cookie
cutters” (Miller-El, at p. 247, fn. 6), and as we have noted,
“[o]verlap on one concern will seldom be sufficient: ‘Two
panelists might give a similar answer on a given point. Yet the
risk posed by one panelist might be offset by other answers,
behavior, attitudes or experiences that make one juror, on
balance, more or less desirable’ ” (People v. Armstrong (2019)
6 Cal.5th 735, 784–785 (Armstrong)).
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them to return a death verdict. Although she ultimately stated
that she would be able to vote for death, Prospective Juror
No. 218 repeatedly referenced her religious beliefs as causing
hesitation. These responses are not comparable to those of the
identified seated jurors. (See Miles, supra, 9 Cal.5th at p. 544
[in determining whether there were material differences among
the jurors, differences “generally will be more probative if they
closely relate to reasons the prosecutor has stated for a
peremptory challenge”].)

(2) Prospective Juror No. 202
The prosecutor stated that Prospective Juror No. 202 was
excused because “her brother was actually given a lethal
injection and killed basically through the death penalty in
Texas. I frankly don’t believe that — even though she said she
could be fair, that having someone so close to her, a brother, an
actual brother, sibling, being injected and killed, that when it
comes down to it, that she could be fair. I don’t think she would
give the prosecution equal weight in terms of considering
penalty.”
The prosecutor’s reasons were supported by the record.
Prospective Juror No. 202 stated on her questionnaire that her
brother had been arrested for robbery and murder and was
executed in Texas by lethal injection. Prospective Juror No. 202
had visited her brother while he was in custody. On voir dire,
Prospective Juror No. 202 stated that she was close to her
brother but believed she could be fair to both sides in the case.
Shove contends that the prosecutor’s justification was a
“demeanor-based reason,” and that in the absence of an explicit
ruling by the trial court, it cannot be presumed that the judge
credited the assertion. We see nothing in the prosecutor’s

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reasoning that referenced Prospective Juror No. 202’s
demeanor. And although Prospective Juror No. 202 indicated
she would be able to vote for death, the prosecutor was not
required to take her answer at face value (Lomax, supra,
49 Cal.4th at p. 572), especially when confronted with a
prospective juror who had a close family member who was
subject to capital punishment. The prosecutor’s concern about
Prospective Juror No. 202’s ability to impose the death penalty,
given that experience, was a nondiscriminatory reason for
exercising the challenge. (See Miles, supra, 9 Cal.5th at p. 546
[“ ‘A prospective juror’s views about the death penalty are a
permissible race- and group-neutral basis for exercising a
peremptory challenge in a capital case’ ”].)
Shove contends that “the prosecution’s reasons show that
racial stereotyping was on the prosecution’s mind when
exercising peremptory challenges” because “[t]he prosecution
took pains to explain that the juror had an ‘actual brother’ who
was executed, as opposed to the term ‘brother’ as used
colloquially as a member of the African-American race.” But as
far as the record reveals, the prosecutor’s comment simply
emphasized that Prospective Juror No. 202 “actually” had a
sibling who was executed, in order to explain why the prosecutor
had trouble believing that the prospective juror could be fair in
determining penalty. The comment does not suggest that the
concern was a pretext for discrimination.
Comparative juror analysis does not assist Shove. Shove
points to Juror No. 2, who visited his partner in jail after he had
been arrested for driving under the influence and a probation
violation. He also notes that Alternate Juror No. 3 picked up
his brother-in-law from jail, whom he may not have considered
a close friend or relative considering he answered “no” when

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asked whether a close friend or relative had ever been arrested
for a crime. These jurors’ experiences are markedly different
than visiting a sibling who had been convicted of murder,
sentenced to death, and ultimately executed. The prosecutor’s
reasons do not evidence a discriminatory purpose.
(3) Prospective Juror No. 215
As to Prospective Juror No. 215, the prosecutor explained:
“He visited his son in custody. When he was asked by [the other
prosecutor] about that, he said the case was dismissed. His
nephew was also arrested, and he didn’t think that the police
did a good job. He put that in his questionnaire, and he
reiterated it today in open court. He also said officers are
capable of lying. He also, regarding the death penalty, said,
‘Hopes it won’t be a problem at the time.’ I thought he was a
little noncommittal on that, even though he probably later said
it was fine. Anybody who kind of hesitated, we are skeptical of.”
Finally, the prosecutor said: “[H]is son was arrested, and it is
only three years ago that he visited him in custody. And he said
the case was dismissed, which would leave me to believe that he
felt his son was in for something he didn’t do or wasn’t
warranted. That would give him the police bias.”
Prospective Juror No. 215 stated in his questionnaire that
he had visited his son in custody and explained at voir dire that
his son had been arrested for possessing a weapon but that the
matter was dismissed. Prospective Juror No. 215 also stated on
his questionnaire that his nephew had been recently arrested,
and though he did not know much about the case, “[f]rom what
I know, they didn’t do a good job.” In voir dire, Prospective Juror
No. 215 confirmed that he did not believe the police conducted a
good investigation, and when asked whether it would cause him

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to doubt the police or prejudge this case, he stated, “I wouldn’t
say it would cast doubts or — I would say it goes back to the
statement that was made earlier; that . . . even the police officer
is capable of lying or . . . not being truthful.”
Although statutory law prospectively treats reasons
relating to negative experiences and/or views of law enforcement
as presumptively invalid and thus requiring further inquiry to
support a peremptory strike (see Pen. Code, § 231.7, subd. (e);
fn. 16, ante), our Batson/Wheeler cases have held that a close
relative’s adverse experiences with the criminal justice system
is a race-neutral basis for excusal. (Nadey, supra, 16 Cal.5th at
p. 141.) Although Prospective Juror No. 215 said that nothing
about his son’s adverse experience with the criminal justice
system would cause him to be unfair, that does not controvert
the genuineness of the prosecutor’s concerns about the effects of
that experience on the prospective juror. (See Hardy, supra,
5 Cal.5th at p. 82 [it was reasonable for the prosecutor to be
concerned about a prospective juror who had been falsely
arrested “regardless of how understanding and forgiving that
juror might appear to be”]; see also Mills, supra, 48 Cal.4th at
p. 176 [justification for exercising peremptory challenge need
not support a challenge for cause].) Prospective Juror No. 215
also did not believe that the police investigating his nephew’s
case had done a good job and this adverse experience had
impressed upon him that police, like anyone else, could lie.
There is no apparent reason to question whether the
prosecutor’s concerns about these responses were genuine.
With respect to the reasons relating to his death penalty
views, Prospective Juror No. 215 wrote on his questionnaire
that his views on the death penalty “[p]resently” aligned with
“[t]hose who believe that the death penalty is appropriate in

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certain cases and would carefully consider all the evidence and
instructions of the court in deciding whether the death penalty
was the appropriate penalty in this case.”18 Though jurors in
this category could return either penalty verdict depending upon
which they believed to be appropriate, Prospective Juror
No. 215 added, “I only hope it won’t be a problem at the time for
that decision to be made.” When asked whether there was any
reason why he would rather not sit as a juror on a death penalty
case, Prospective Juror No. 215 answered, “yes,” and explained,
“I don’t know if I would be able to — Presently I believe I would.”
Prospective Juror No. 215 also answered “don’t know” as to
whether he had any objections to the death penalty which he
believed might impair his ability to be fair and impartial in a
death penalty case. Thus, notwithstanding any neutrality
Prospective Juror No. 215 expressed on the death penalty, his
other statements suggesting “ ‘reservations or scruples’ about
imposing the death penalty” provided a race-neutral reason

18
Question 60 on the questionnaire provided that “[m]any
people’s views about the death penalty fall into one of four
groups: (1) Those who would automatically vote for death,
without regard to aggravating and mitigating factors . . . ; (2)
Those who would automatically vote for life in prison without
parole (LWOP), without regard to aggravating and mitigating
factors . . . ; (3) Those who agree there should be a death
penalty, but who know that they would never be able to
personally vote for death, without regard to aggravating and
mitigating factors . . . ; (4) Those who believe that the death
penalty is appropriate in certain cases and would carefully
consider all the evidence and instructions of the court in
deciding whether the death penalty was the appropriate penalty
in this case. Jurors in this category would return a verdict of
death” or “life without the possibility of parole . . . if they
believed that was the appropriate penalty.”
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justifying the peremptory challenge. (Lomax, supra, 49 Cal.4th
at p. 572.)
Shove argues that Prospective Juror No. 215 was never
asked about his ability to impose the death penalty on voir dire.
But the prospective jurors had already been questioned about
their views on the death penalty during the death qualification
process; at the outset of regular voir dire, the trial court had
made clear that they would not be questioned further on the
subject. Moreover, the court and prosecutor did question
Prospective Juror No. 215 about his questionnaire responses
during the death qualification process. He indicated he could
vote for death yet was concerned about how he would “be able to
live with that decision.” Nothing about the nature of the
questioning, nor Prospective Juror No. 215’s responses, calls
into question the genuineness of the prosecutor’s concern about
the prospective juror’s ability to return a death verdict if the
evidence warranted it.
Also, that the prosecutor noted that Prospective Juror
No. 215 was “a man [who] had a slight Jamaican accent” before
recounting the reasons for exercising the challenge does not, as
Shove argues, call into question the race-neutral reasons the
prosecutor provided in exercising the peremptory challenge. We
read the prosecutor’s comment as recalling the identity of the
excused prospective juror, as she did with the other jurors.
Finally, comparative juror analysis again falls short of
demonstrating pretext. Although, as noted, Juror No. 2 and
Alternate Juror No. 3 also both knew people who were in jail,
both expressed little or no knowledge or opinions of those
proceedings. By contrast, Prospective Juror No. 215 did not
believe that the police investigating his nephew’s case had done
a good job and the experience impressed upon him that police

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could lie. Prospective Juror No. 215 visiting his son in jail for a
matter that was ultimately dismissed further raised concerns
about Prospective Juror No. 215’s potential bias against law
enforcement in a different manner than the identified
empaneled jurors’ experiences.
Shove also argues, as he did in connection with
Prospective Juror No. 218, that other non-Black jurors
expressed similarly noncommittal views regarding the death
penalty. The record does not support the contention. Shove
notes that Juror No. 2 answered on his questionnaire that he
was neither for nor against the death penalty and that “it is
what it is.” But expressing neutrality on the existence of the
death penalty is different than expressing concern about being
able to vote for the death penalty, and Juror No. 2’s
questionnaire and death qualification responses reveal no such
hesitancy. Additionally, Shove has not shown that Juror No. 2
had similar negative experiences with law enforcement,
therefore Juror No. 2 is also materially different from Juror
No. 215 regardless of any similarities on their death penalty
views. (See Miles, supra, 9 Cal.5th at p. 544.)
As to Juror No. 3, this juror wrote on his questionnaire
that the “[d]eath penalty will not bring the victim back life
without parole is worse than death penalty.” In response to
whether he believed California should have the death penalty,
Juror No. 3 answered “no” and referred to his previous answer
in explaining, “the victim will never come back.” He also
answered “don’t know” in response to questions asking whether
he would be able to vote for the death penalty if he believed,
after hearing all the law and evidence, that the death penalty
was appropriate, and whether he had any objections to the death
penalty that might impair his ability to be fair and impartial.

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When asked about these “don’t know” responses during death
qualification, Juror No. 3 explained: “Well, the death penalty
somehow is a relief to the victim’s family. The victim is already
gone. He is dead. And the defendant is the one who did that
crime.” When the trial court explained that California law
considers death to be the more severe punishment, monetary
costs are not an appropriate consideration, and that either
punishment would be carried out, Juror No. 3 protested, “But it
takes twenty years until the accused is put to death.” The trial
court explained that was a factor not to be considered.
Prospective Juror No. 215 and Juror No. 3 both noted
uncertainty about whether they could actually vote for death,
and both indicated on their questionnaires that their death
penalty views fell into group four — those who believe the
penalty is appropriate in certain cases and would carefully
consider all the evidence and instructions of the court in
deciding whether the death penalty was the appropriate
penalty. But, unlike Prospective Juror No. 215, Juror No. 3 did
not state he would prefer to not sit as a juror on a death penalty
case. And unlike Prospective Juror No. 215, who was worried if
he could “live with [the] decision” of selecting the punishment of
death, Juror No. 3’s responses revealed no moral qualms about
the death penalty or that he struggled with the weight of the
decision. Rather, his responses evidence concerns with the
practicality or utility of the death penalty. Even assuming some
similarity between the death penalty views of Prospective Juror
No. 215 and Juror No. 3, they are not comparable for other
reasons. For instance, regarding suspicion of law enforcement,
Juror No. 3, unlike Prospective Juror No. 215, stated he would
consider the testimony of a peace officer more believable than
other witnesses’ testimony because a peace officer “swears to do

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his duty and to tell the truth regardless.” (See Nadey, supra,
16 Cal.5th at pp. 141, 143 [compared jurors were more favorable
to the prosecution]; see also Miles, supra, 9 Cal.5th at pp. 542–
543.)
Shove also points to Juror No. 6, who appears to have
initially answered “don’t know” in response to the question
asking whether she would be able to vote for the death penalty
if she believed it appropriate, but then struck that response and
answered “yes,” explaining, “[i]t’s hard to come up with such
decision.” Juror No. 6 said her views on the death penalty
aligned with those described in group four in the questionnaire
and explained during death qualification: “Actually at the time
that I filled out the questionnaire[], I [was] . . . in between three
and four. I would feel guilty for voting . . . responsible for voting
[for the] death penalty or life in prison for someone. But when I
think about it, . . . as a jury, it is a duty to make that decision
based on the facts. So I [chose] number four . . . .” She also
explained, “when I said difficulty, I just want to clarify, . . . after
the trial is over, how it will affect me. But I could make that
decision[].” She said that this concern would not affect her
decision.
Juror No. 6’s responses are similar to Prospective Juror
No. 215’s in that both expressed concern as to how making the
penalty determination might be difficult. But Juror No. 6 had
an otherwise favorable view of the death penalty, stating on her
questionnaire she believed California should have the death
penalty “[t]o further enforce the laws” and that she thought it
was “fair and square.” Moreover, unlike Prospective Juror
No. 215, Juror No. 6 did not express uncertainty over whether
she had any objection to the death penalty that would impair
her ability to be fair and impartial and said there was no reason

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why she would rather not sit as a juror on a death penalty case.
Accordingly, notwithstanding any concern about how the
penalty decision might weigh on her in the future, Juror No. 6
did not express any inability to make that decision.
Nor is Juror No. 8 an apt comparison. Shove notes that
Juror No. 8 answered “no comment” on her questionnaire when
asked about her general feelings about the death penalty. When
asked whether she would be able to vote for the death penalty if
she believed it appropriate, Juror No. 8 answered “don’t know”
and explained, “I would have to hear all facts, and really think
about it.” In stating that her views aligned with those in group
four, she explained, “I would really have to think about my
verdict carefully befor[e] I would reach my decis[]ion.” During
death qualification, Juror No. 8 explained that she had never
had to think about making such a decision before and how after
completing her questionnaire she spent the weekend “really
thinking about it,” explaining the situation “was weighing
pretty heavy over my head.” But following reflection, Juror
No. 8 stated that if “I had to make the decision, I could do it” and
in fact she was “certain [she] could do it.” Unlike Prospective
Juror No. 215, Juror No. 8 did not express moral qualms but an
initial lack of an opinion on a weighty matter that she resolved.
“An advocate is entitled to consider a panelist’s . . . acceptance
of responsibility for making weighty decisions.” (People v. Lenix
(2008) 44 Cal.4th 602, 623.) Also, unlike Prospective Juror
No. 215, Juror No. 8 stated no uncertainty over whether she had
any objections to the death penalty that would impair her ability
to be fair and impartial and no reason why she would rather not
sit as a juror in a death penalty case.
Finally, Shove points out that Juror No. 9 answered “don’t
know” in response to the question asking whether she had any

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objections to the death penalty that would impair her ability to
be fair and impartial, explaining that the “[d]eath penalty is
applicable depending on [a] case to case basis.” But this
indicates only that Juror No. 9 would not automatically vote for
or against death and would undertake an individualized
assessment before deciding the penalty. Juror No. 9 otherwise
expressed no hesitancy in making the penalty decision and
stated on her questionnaire that she was neutral on the death
penalty and would not have “difficulty” doing “what’s required
by law.” She believed that California should have a death
penalty, explaining that “[u]nnecessary crimes have been
committed [and the] death penalty can be one of the ways to
clean up the community.” Juror No. 9 also stated that she would
be able to vote for the death penalty if it was appropriate,
explaining, “[i]f all evidence[] [is] presented, will not hesitate to
go along [with the] death penalty.” Such responses contrast
with Prospective Juror No. 215’s “hope it won’t be a problem at
the time for that decision to be made.” Juror No. 9 also stated
no reason why she would rather not sit as a juror in a death
penalty case.
Accordingly, comparing the identified seated jurors’
responses to the reasons for the excusal of the challenged
prospective juror does not demonstrate that they are
“ ‘materially similar in the respects significant to the
prosecutor’s stated basis for the challenge’ ” so as to be
probative. (Winbush, supra, 2 Cal.5th at p. 443.)
(4) Prospective Juror No. 7
The prosecutor stated she excused Prospective Juror No. 7
because: “She originally wrote on her questionnaire that she
was a three,” i.e., that her views on the death penalty aligned

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with those who agree with the death penalty but could never
personally vote for death. “When she was questioned by the
court, she said that she could do it. However, she wrote in her
questionnaire that she was unsure. And she also wrote, ‘to have
someone’s life in your hands.’ Her son was arrested for drugs.
And we just thought that she was not strong on the death
penalty in terms of being able to truly do it. Because when
someone writes a three on their questionnaire, they have had
time to think about it. That’s really what they are writing. I
think they feel pressure when they are being asked in open court
to go along with the rest and sound strong and say they could
actually do it.”
Prospective Juror No. 7 stated on her questionnaire that
her views on the death penalty aligned with those in the group
“who agree there should be a death penalty, but who know that
they would never be able to personally vote for death . . . .” As
to whether there was any reason she would rather not sit as a
juror on a death penalty case, Prospective Juror No. 7 answered
“yes,” explaining, “As I said before this is a hard decision to
make because you have someone’s life in your hands.” When the
prosecutor questioned Prospective Juror No. 7 about these
responses during the death qualification process, Prospective
Juror No. 7 stated that, “after hearing all the conversations and
the things that you’ve been presenting, I feel that . . . after
presented with all the facts and evidence . . . that I could be . . .
a fair juror. And . . . if we had to go to deliberation and all that,
I could vote what was right.” When pressed on the issue of
whether she could impose the death penalty if she felt it
appropriate, Prospective Juror No. 7 responded, “Yeah, it will be
hard, but I feel I could.” During voir dire, Prospective Juror
No. 7 was questioned about being the victim of a residential

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burglary and said that it would not affect her in this case.
Prospective Juror No. 7 also stated on her questionnaire that
her son had been arrested for selling drugs.
The prosecutor’s reasons for exercising the challenge are
plausible and supported by the record. Prospective Juror No. 7
stated on her questionnaire that she would never be able to
personally vote for death. Although she later expressed
ambivalence about this position during the death qualification
process, the prosecutor’s concern that Prospective Juror No. 7
might have merely conformed with other prospective jurors’
responses in open court was legitimate and race-neutral.
(Winbush, supra, 2 Cal.5th at p. 436.) Shove contends that the
prosecutor failed to adequately question Prospective Juror No. 7
regarding this reason for excusal, but the record shows this
prospective juror was questioned about her death penalty views
during the death qualification process and, as with other
prospective jurors, Prospective Juror No. 7 was not questioned
again about the death penalty during voir dire.
Nor does comparative juror analysis persuade us to a
different conclusion. As before, although Juror No. 2 and
Alternate Juror No. 3 also knew people who had been arrested,
the combination of the seated jurors’ responses were materially
different from Prospective Juror No. 7’s. (See Miles, supra,
9 Cal.5th at pp. 543–544.) As noted, Juror No. 2 and Alternate
Juror No. 3 expressed no hesitation about their ability to vote
for the death penalty. Nor did any of the jurors that Shove
identifies state that their views about the death penalty aligned
with the third group on the questionnaire, or that they would
rather not sit on a death penalty case. Consequently, there are
material differences, other than race, that we can reasonably
infer motivated the prosecutor’s challenges. (Id. at p. 550.)

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III. GUILT PHASE ISSUES
A. Denial of Shove’s Request to Impeach Kenneth
with Inconsistent Statements
Shove contends the trial court improperly restricted his
ability to impeach Kenneth with statements he had made to his
wife, on the ground that the statements were privileged marital
communications. Shove argues that the trial court’s ruling
violated his statutory and constitutional rights. We conclude
that any error was harmless.
1. Background
At trial, Kenneth testified that he did not know Monte
Proulx and had never met or heard his name before this case.
Kenneth denied attending an auction with Proulx in 2001 or
telling his wife that he had recently met a man named Monte at
an auction who worked for Jack Reiland and found him to be
very strange.
Shove’s counsel then sought to call Kenneth’s wife,
Allison, to testify concerning a 2004 interview with detectives in
which she stated that Kenneth told her he had recently attended
an auction and met a very strange person named Monte.
Shove’s counsel argued that Allison’s testimony on this point
was admissible as a prior inconsistent statement by Kenneth;
the prosecution claimed, however, that the testimony was
irrelevant because it referred to a different incident than that
covered by Kenneth’s testimony and that it was otherwise
excludable under the marital communication privilege. Shove’s
counsel contended that the privilege was waived but
acknowledged that both spouses hold the privilege and that the
defense is “calling her to impeach [Kenneth] who would say that
my wife can’t testify.”

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At an Evidence Code section 402 hearing, Allison
remembered being interviewed by detectives in 2004 and that
her husband had attended an auction after Vann left Cal Aero,
but did not remember telling the detectives that Kenneth told
her that he had recently met a man named Monte at an auction.
Instead, during a private conversation in their bedroom,
Kenneth told her someone had pointed out Reiland to him at an
auction. Given Allison’s testimony, Shove’s counsel intended to
call the interviewing detectives to testify to Allison’s statement
and argued that Allison waived any privilege by disclosing the
conversation to police. The trial court observed that “somebody
needs to assert the privilege,” and Allison returned to the
courtroom and confirmed that she “wish[ed] to assert a marital
privilege in testifying concerning communications between” her
and her husband. Thereafter, the court ruled that it was “not
going to allow that testimony.”
2. Discussion
The confidential spousal communication privilege
provides that “a spouse . . . whether or not a party, has a
privilege during the marital . . . relationship and afterwards to
refuse to disclose, and to prevent another from disclosing, a
communication if he or she claims the privilege and the
communication was made in confidence between him or her and
the other spouse while they were spouses.” (Evid. Code, § 980.)
This privilege “is waived . . . if any holder of the privilege,
without coercion, has disclosed a significant part of the
communication or has consented to disclosure made by anyone.”
(Evid. Code, § 912, subd. (a).)
Shove contends that Allison waived the spousal
communication privilege by disclosing the conversation to police
and the court without asserting the privilege, and that her
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belated assertion of the privilege at trial was too late. (See Evid.
Code, § 912, subd. (a) [“Consent to disclosure is manifested by
any statement or other conduct of the holder of the privilege
indicating consent to the disclosure, including failure to claim
the privilege in any proceeding in which the holder has legal
standing and the opportunity to claim the privilege”].) The
Attorney General responds, however, that the privilege
belonged to both Allison and Kenneth, and not Allison alone.
(See Evid. Code, § 912, subd. (b) [“waiver of the right of one
spouse to claim the privilege does not affect the right of the other
spouse to claim the privilege”].) Thus, the Attorney General
contends, the privilege was not waived because Kenneth was
never provided the opportunity to assert or waive the privilege,
and even if the trial court erred in its reason for upholding the
privilege, its decision to do so was ultimately correct. Shove
counters that because the trial court incorrectly ruled that
Allison’s assertion of the privilege precluded evidence of the
statement, Shove was not given an opportunity to subpoena
Kenneth to ascertain whether he would assert the privilege.
We need not resolve whether it was error to exclude
Allison’s statements on this record because any error was
harmless in any event. Assuming the detectives would have
testified that in 2004 Allison stated that her husband had told
her he had recently met a man named “Monte” at an auction and
found him strange, this proffered evidence had little probative
value. Evidence indicating that Kenneth met Proulx at an
auction could have impeached Kenneth’s testimony that he
never went to an auction with Proulx. But the force of such
evidence would have been undercut by the fact that this
purported meeting occurred approximately three years after the
murders and between individuals affiliated with similar

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businesses. Additionally, Allison would not have testified that
her husband told her he had met Proulx. We conclude any
constitutional error in excluding the evidence was harmless
beyond a reasonable doubt; any violation of the Evidence Code
was therefore likewise harmless. (Chapman v. California (1967)
386 U.S. 18, 24; see also People v. Contreras (2013) 58 Cal.4th
123, 152 [courts have “wide latitude” to exclude impeachment
on collateral matters]; People v. Mendoza (2016) 62 Cal.4th 856,
905 [there is no prejudice under the Watson standard for state
law error if there is no prejudice under the more rigorous
harmless error test for assessing federal constitutional error].)
B. Asserted Prosecutorial Misconduct
1. Asserted Griffin error
Shove alleges that during guilt phase closing arguments,
the prosecution improperly commented on Shove’s failure to
testify in violation of his Fifth Amendment right against self-
incrimination. (Griffin v. California (1965) 380 U.S. 609, 615
(Griffin).) The claim is forfeited and lacks merit in any event.
a. Background
During closing argument, the prosecutor argued that all
of the “evidence points to” Shove. The prosecutor continued:
“[W]hen his attorney gets up here . . . you ask and you should
demand an answer to the questions why is the only connection
between the killer and the victims your client? Why is Shove
the only connection to the killer in this case? How can you
explain that?” The prosecutor further continued: “Why is
Theodore Shove the only person talking to Lewis Hardin that
night on the phone, receiving and calling that night? Why? If
it’s . . . not him, then how can you explain that? Why is Theodore
Shove’s truck being used in all the[ ] surveillance of the family

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of these victims? Why is it his truck? Why . . . is the extortion
letter on his computer? How can he explain why this very
incriminating letter used in these extortions is on Theodore
Shove’s computer? You are entitled answers to those questions
and you should get them. And you know what the answer to
them all is, it’s because they did it. It’s because they’re guilty.”
On rebuttal, the second prosecutor argued: “Now you will
recall earlier today [the other prosecutor] very directly . . .
challenge[d] the defense attorneys . . . to answer some very
simple, basic questions. And when the defense counsel, each of
them, got up here and addressed you, they offered not one single
answer. . . . [T]hey were given an opportunity to come up with
any answer that pointed to innocence. This was their
opportunity. [Shove’s counsel] talked for, I believe, two hours
and 45 minutes. [Hardin’s counsel] talked for an hour and a
half. And they were given an opportunity to come up with an
innocent explanation for these very basic points. And they
offered you none. Why? Because there is no innocent
explanation for these very basic points. The answers are, you
are looking at two murderers. That’s the answer. . . . We have
given you answers for the last four weeks. But they were given
that opportunity; give us an innocent explanation, and they
offered you not one. [The other prosecutor] asked them, what’s
the connection between [the] victims and Hardin other than
Shove? Silence from the defense because there is no connection
between the Southers and Hardin other than Shove. They were
asked, why were they calling each other all night that particular
night? Silence from the defense. They were calling each other
because they were planning, orchestrating and committing
these horrendous crimes.”

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The prosecutor then recounted evidence concerning the
sightings of Shove’s truck and argued, “But what did we hear
from the defense about those sightings of Shove’s truck out
there? Silence. Why is the extortion letter on Shove’s computer?
[Shove’s counsel] must have talked about dogs barking for 45
minutes yesterday. . . . Not one answer, based on the evidence
in this case, as to why that extortion letter is on Shove’s
computer. Because they have no innocent answer. All the
answers point to their guilt.”
b. Discussion
Shove contends that the prosecutors’ arguments
constituted prosecutorial misconduct because they improperly
commented on his failure to testify. (See Griffin, supra, 380 U.S.
at p. 615.) The claim is forfeited because Shove’s counsel did not
object at trial to the comments he now challenges or request an
admonition and no exception is applicable. (People v. Castaneda
(2011) 51 Cal.4th 1292, 1333 (Castaneda); Valdez, supra,
32 Cal.4th at p. 127; People v. Lewis (2001) 25 Cal.4th 610, 670;
People v. Mitcham (1992) 1 Cal.4th 1027, 1050 (Mitcham).)
The claim is, in any event, meritless. “Under state law,
‘ “[a] prosecutor who uses deceptive or reprehensible methods to
persuade the jury commits misconduct . . . .” ’ [Citation.]
Prosecutorial misconduct violates the federal Constitution when
it results in a fundamentally unfair trial. [Citation.] When a
claim of misconduct is based on remarks to the jury, we consider
whether there is a reasonable likelihood the jury construed the
remarks in an improper fashion.” (People v. Steskal (2021)
11 Cal.5th 332, 350 (Steskal).) While Griffin prohibits a
prosecutor from commenting directly or indirectly on a
defendant’s invocation of the right to silence, a prosecutor does
not violate the Griffin rule by commenting on the state of the
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evidence, including the absence of certain evidence and the
failure of the defense to introduce material evidence or to call
logical witnesses, unless “the only possible source of such
evidence would have been the defendant.” (People v. Bloom
(2022) 12 Cal.5th 1008, 1055; see also, e.g., Castaneda, supra,
51 Cal.4th at p. 1333.)
Here, Shove challenges the prosecution’s reference to
“silence from the defense” on various evidentiary issues that
pointed to Shove’s and Hardin’s guilt and argues that the words
“silence” and “answer” could be interpreted as referring to
Shove’s decision not to testify. But the context of the
prosecutor’s statements makes clear that the prosecutor was
referring to the anticipated closing argument from defense
counsel, not the absence of Shove’s trial testimony. Indeed, the
prosecutor prefaced these arguments by telling the jury that
“when [Shove’s] attorney gets up here and he starts talking . . .
you ask and you should demand an answer.” On rebuttal, the
prosecutor argued that “when the defense counsel, each of them,
got up here and addressed you, they offered not one single
answer.” The prosecutor noted the duration of each defense
counsel’s closing argument and that “they were given an
opportunity to come up with an innocent explanation for these
very basic points.” Each time the prosecutor said the word
“silence,” it was made clear that the prosecutor was referring to
defense counsel, not to Shove himself.
Similarly, the prosecution’s comment urging the jury to
“demand an answer” or explanation from defense counsel as to
why Shove was “the only connection between the killer and the
victims . . . ” was, on its face, directed at defense counsel; it, too,
was merely argument “directed to the general failure of the
defense to provide an innocent explanation.” (People v. Medina

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(1995) 11 Cal.4th 694, 756; see also Mitcham, supra, 1 Cal.4th
at p. 1051 [Griffin “does not prohibit the prosecution from
emphasizing . . . the absence of evidence controverting the
prosecution’s evidence”].) So too was questioning how Shove
could explain the calls between him and Hardin the night of the
murders or why his truck was used to surveil the victims’ family.
Asking these questions and telling the jury that they were
entitled to answers “contained no references, express or implied,
to defendant’s own silence, and therefore were unobjectionable.”
(Medina, at p. 756; see also Taylor, supra, 48 Cal.4th at p. 633
[“ ‘Who took this stand and gave you a reasonable explanation’ ”
as to defendant’s presence in the victim’s home was proper
comment on the evidence and “not an implicit suggestion that
defendant should have, or could have, provided a nonfelonious
reason for his initial entry into the victim’s home”].) “The
prosecutor’s remarks, viewed in context, can only be seen as a
fair comment on the state of the evidence” (Medina, at p. 756),
which is permitted “despite the mere possibility that the
statement might also be interpreted as a reference to the
defendant’s failure to testify.” (Bryant, supra, 60 Cal.4th at
p. 387.)
Shove contends that only he could have provided the
answers to the prosecution’s questions. Not so. Someone other
than Shove or Hardin could have provided testimony evidencing
some innocent explanation for their communications on the
night of the murders, the presence of Shove’s truck at the Renck
residence, the existence of the extortion letter on Shove’s
computer, or the fact that Shove was the only connection
between Hardin and the Southers. In demanding an answer to
these inculpatory circumstances, the prosecution “did not allude
to the lack of refutation or denial by the sole remaining witness,

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defendant, but rather to the lack of evidence, which might have
been presented in the form of physical evidence or testimony
other than that of defendant.” (People v. Bradford (1997)
15 Cal.4th 1229, 1340; see also People v. Gomez (2018) 6 Cal.5th
243, 299 [defendant could have presented evidence other than
defendant’s testimony to rebut prosecutor’s argument that there
was no evidence defendant read newspaper articles about the
offense].) There is, in sum, “no reasonable likelihood the
comment[s] ‘could have been understood, within its context, to
refer to defendant’s failure to testify.’ ” (People v. Cleveland
(2004) 32 Cal.4th 704, 764.)
2. Appeals to Sympathy of Jury
Shove contends that the prosecution also committed
prejudicial misconduct in the guilt phase closing argument by
inviting the jurors to consider the crime through the eyes of the
victims and the impact it had on their family members. We
conclude that the claim is forfeited and any error would be
harmless in any event.
a. Background
The prosecutor began her closing argument by stating the
following without objection:
“I want to talk for a moment about why we’re here, who
was killed, whose lives were taken. Mr. and Mrs. Souther. Mr.
Souther, 81. Mrs. Souther, 79 years old. Married for over 50
years. Raised children, had grandchildren. You heard about
Burt. You heard about his business. You heard about how much
he loved Cal Aero, how much he invested in that business. You
heard about how they really lived the American dream, how
Burt worked hard to earn that business. How that was his —
his baby. Little did they know that on that night,

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September 15th, 2001, the nightmare they were about to
encounter. Completely innocent and vulnerable victims.
Elderly, weak, in poor health, laying in their beds in the dark.
You don’t get much more vulnerable than that. Little did they
know that this man, Lewis Hardin, would be coming into their
bedroom with a tire iron in his hand and he would just begin
beating them without showing any mercy. Beating them. Think
of that. Think of how they died. The last few minutes of their
life struggling in that bed. Burt defending himself. Burt
enduring broken bones. His teeth flying about the room. Their
skulls being fractured. And then think about when they were
first discovered. Think about Collette Kingsley that day when
she gets that call and she’s not at all imagining that this could
be true, that anything like this could have happened. She’s just
going to check out and see what’s wrong. Maybe her parents’
phones aren’t working. Maybe there’s some misunderstanding,
they forgot to tell her they were going somewhere. She goes to
their house, she walks in, she sees, the broken door. She walks
further, ‘Mom.’ ‘Mom.’ ‘Dad.’ ‘Mom.’ ‘Dad.’ Imagine that. She’s
walking down that hall, that long hallway to their bedroom and
she finds her parents like this. This is how Lewis Hardin left
the victims that night. This is what he did to them, and this is
what he did to them because Theodore Shove wanted to profit.
He wanted that business and he wanted money.”
Near the end of its rebuttal, the prosecutor stated, over
Shove’s counsel’s unsuccessful objection: “Six years ago, ladies
and gentlemen, six years. Six years justice has been held in
abeyance. Six years those who loved the Southers have waited.
Waited. Waited for justice to be served in this case.”

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b. Discussion
Shove’s counsel objected only to the statements made on
rebuttal and no exception to the requirement of an objection and
admonition appears. Thus, as to the statements made at the
beginning of the prosecutor’s closing argument, the claim is
forfeited. (See People v. Caro (2019) 7 Cal.5th 463, 510; see
People v. Amezcua and Flores (2019) 6 Cal.5th 886, 919
(Amezcua); People v. Seumanu (2015) 61 Cal.4th 1293, 1320,
1340–1341 (Seumanu).) If the claim had not been forfeited, we
would find error. The error is, however, harmless.
Prosecutors are given wide latitude to vigorously argue
their case and “ ‘ “to make fair comment upon the evidence,
including reasonable inferences or deductions that may be
drawn from the evidence.” ’ ” (Dworak, supra, 11 Cal.5th at
p. 910.) But “ ‘appeals to sympathy for the victim during an
objective determination of guilt fall outside the bounds of
vigorous argument.’ ” (Steskal, supra, 11 Cal.5th at p. 351,
quoting Amezcua, supra, 6 Cal.5th at p. 920; see People v.
Stansbury (1993) 4 Cal.4th 1017, 1057 (Stansbury), revd. on
other grounds in Stansbury v. California (1994) 511 U.S. 318;
People v. Fields (1983) 35 Cal.3d 329, 362–363.) Nor may a
prosecutor invite the jury to consider the impact of the crime on
the victim’s family during the guilt phase of a capital trial. (See,
e.g., People v. Jackson (2009) 45 Cal.4th 662, 691–692; People v.
Salcido (2008) 44 Cal.4th 93, 150–151 (Salcido).)
We conclude that some of the prosecutor’s closing
argument crossed the line demarking vigorous argument and
“improperly appealed to the passions of the jury in urging them
to consider the suffering of the victim[s] . . . .” (Stansbury,
supra, 4 Cal.4th at p. 1057.) Of course, “the prosecutor is not
required to shield the jury from all favorable inferences about

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the victim’s life or to describe relevant events in artificially drab
or clinical terms.” (People v. Millwee (1998) 18 Cal.4th 96, 138.)
Thus, recounting the victims’ injuries was fair commentary on
the evidence. (See People v. Martinez (2010) 47 Cal.4th 911, 957
(Martinez) [description of victim “ ‘suffering’ a ‘savage beating’ ”
and “how it reflected defendant’s ‘violent capabilities’ were fair
comments on the evidence”].)
But the prosecutor veered into improper argument by
coupling a description of the Southers’ injuries with an urging
that the jury “[t]hink of how they died” and how, after pursuing
a full and successful life of family and work, they spent “[t]he
last few minutes of their life struggling in that bed.” To be sure,
the details of the offense were based upon the trial evidence, and
the prosecutor did not expressly invite the jury to imagine what
the victims might have been thinking or to view the crime
through their eyes. (See Stansbury, supra, 4 Cal.4th at p. 1057;
Amezcua, supra, 6 Cal.5th at p. 919; Seumanu, supra,
61 Cal.4th at pp. 1343–1344; People v. Leonard (2007)
40 Cal.4th 1370, 1407.) Explicitly asking a jury to imagine
themselves in the victim’s place is not, however, the only way
for a prosecutor to improperly appeal for sympathy. (See, e.g.,
People v. Kipp (2001) 26 Cal.4th 1100, 1129–1130 (Kipp)
[inviting the jury to “reflect on all that the victim had lost
through her death” by thinking about “[a] living, breathing
human being ha[ving] all of that taken away” was an improper
appeal for sympathy].) In People v. Sanchez (2019) 7 Cal.5th 14,
66, for instance, the prosecutor commented that a victim “ ‘died
not knowing if her youngest [child] was going to make it, but
knowing her oldest hadn’t.’ ” We held that although “the
prosecutor only indirectly suggested that the jury should view
the crime through [the victim’s] eyes . . . the comment was

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irrelevant to defendant’s guilt and, for that reason, should not
have been made.” (Ibid.) The same is true here.
It was also improper for the prosecutor to recount Collette
discovering her parents’ bodies and then ask jurors to “imagine”
this experience. The Attorney General contends that this
argument was akin to that in People v. Pearson (2013)
56 Cal.4th 393, 441, where we held that characterizing shooting
survivors as victims and recounting their testimony was not an
improper appeal to the jury’s sympathy, as “[t]he prosecutor was
reminding the jury of the unique accounts of the shooting spree
offered by those who survived.” But Collette did not witness the
murders, and asking the jury to suppose what she was thinking
when she went to the house and to “[i]magine” her calling out
for her parents before discovering their bodies was irrelevant
and an improper appeal to the jurors’ sympathies.
The only statement as to which Shove preserved an
objection concerned the amount of time that had elapsed before
trial: that the Southers’ loved ones had waited six years “for
justice to be served in this case.” Contrary to Shove’s
suggestion, the comment did not suggest that Shove was to
blame for the lapse of time, nor did the argument “relate the
effect of defendant’s acts upon family members.” (Salcido,
supra, 44 Cal.4th at p. 151.) But we would conclude that the
comment was improper insofar as it appealed to sympathy for
the victims’ family in the context of the jury’s guilt
determination.
Regardless, any misconduct here did not prejudice Shove.
The appeals to the jurors’ sympathies were neither direct nor
explicit in content; the improper arguments were relatively brief
in the context of the entirety of the prosecution’s closing; and the
prosecutor made no further appeals to sympathy. (See Kipp,

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supra, 26 Cal.4th at p. 1130.) Furthermore, the court instructed
the jury that it “must not be influenced by pity for or prejudice
against a defendant,” or “by sentiment, conjecture, sympathy,
passion, prejudice, public opinion or public feeling. Both the
People and a defendant have a right to expect that you will . . .
reach a just verdict regardless of the consequences.” We
presume the jury followed that instruction. (See Steskal, supra,
11 Cal.5th at p. 351; Daveggio, supra, 4 Cal.5th at p. 857;
Martinez, supra, 47 Cal.4th at p. 957.)
Shove contends that even if any individual instance of
prosecutorial misconduct was harmless, “[a]ll of the misconduct
in this case . . . acted synergistically to produce [Shove’s]
conviction.” (See Seumanu, supra, 61 Cal.4th at p. 1350 [“a
number of instances of prosecutorial misconduct may act
synergistically to create an atmosphere of prejudice more
intense than the sum of its parts”].) But Shove has failed to
establish any such pattern of misconduct. Shove mentions
certain prosecutorial actions, such as pointing out the evidence
suggested that Shove was the only connection between Hardin,
Vann, and the victims, without actually raising a cognizable
misconduct claim. (See ante, fn. 10.) The argument does not
persuade us that prejudicial error occurred.
IV. PENALTY PHASE
A. Exclusion of Lingering Doubt Evidence
Shove contends that he was precluded from presenting
penalty phase evidence that would have created a lingering
doubt as to his guilt, namely, evidence that a detective opined in
a search warrant affidavit that Kenneth, Allison, Reiland,
Proulx, and Vann may have been involved in the murders.

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The trial court did not err in excluding this evidence. The
detective’s opinion that others may have been involved in the
offenses was not admissible for purposes of creating a lingering
doubt as to Shove’s guilt. (See People v. Duong (2020) 10 Cal.5th
36, 60 [“ ‘opinions on guilt or innocence are inadmissible because
they are of no assistance to the trier of fact . . . the trier of fact
is as competent as the witness to weigh the evidence and draw
a conclusion on the issue of guilt’ ”].) Although “a defendant may
argue lingering doubt at the penalty phase of a capital trial as a
mitigating consideration” (People v. Jones (2003) 30 Cal.4th
1084, 1125), a defendant may not “introduce evidence, not
otherwise admissible at the penalty phase, for the purpose of
creating a doubt as to the defendant’s guilt.” (People v. Zapien
(1993) 4 Cal.4th 929, 989; see also People v. Lucas (2014)
60 Cal.4th 153, 308 [“The right to present mitigating evidence
in the penalty phase ‘does not trump or override the ordinary
rules of evidence’ ”].) Shove also contends that the trial court
precluded him from presenting the evidence underlying the
detective’s opinion, but the record does not bear out the
contention. Although Shove’s counsel requested to introduce the
facts supporting the opinion, he chiefly sought the admission of
the opinion itself. The trial court stated it was willing to
consider other admissible evidence concerning the
circumstances of the offenses but that opinions were
inadmissible, and Shove’s counsel proffered no other admissible
evidence underlying the opinion. Shove identifies no abuse of
discretion in the court’s rulings.
In any event, there is no reasonable possibility that the
exclusion of the detective’s opinion or any of the third party
culpability evidence excluded at the guilt phase affected the
penalty determination. (See People v. Mataele (2022) 13 Cal.5th

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372, 428; Holmes, McClain, supra, 12 Cal.5th at p. 815.) At the
penalty phase, the jury was instructed that it could consider any
lingering doubt it had as to Shove’s guilt as a mitigating factor.
As we have explained above in addressing Shove’s claims at the
guilt phase, much of the third party culpability evidence in
question was already placed before the jury, and evidence of
others’ involvement in the murders would not tend to exculpate
Shove in any event. Furthermore, there was significant
aggravating evidence presented at the penalty phase beyond the
circumstances of the crime, including Shove’s violent acts
committed against his ex-wives, sister, and a motorist, and his
commission of a robbery with a firearm. The penalty phase
defense case was comparatively weak, consisting only of good
character evidence presented through Shove’s wife and her son,
both of whom Shove had met after the Southers’ murders.
Accordingly, the exclusion of any third party culpability
evidence did not prejudice Shove at the penalty phase.
B. Notice of Victim Impact Testimony
Shove asserts that the prosecution failed to timely inform
the defense that the Southers’ granddaughter, S.A., had
attempted suicide near the anniversary of her grandparents’
deaths. Shove claims the trial court erroneously admitted this
evidence over his objection and denied his request for a
continuance in violation of his statutory discovery right and
constitutional right to due process, the effective assistance of
counsel, and a reliable death judgment. We conclude that,
assuming the prosecution failed to timely satisfy any disclosure
obligations, Shove fails to demonstrate prejudice.

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1. Background
Before trial, the prosecution notified court and counsel
that its penalty phase aggravating evidence would include “the
testimony of the Souther’s [sic] family and the testimony of other
close family members and friends regarding the emotional and
psychological impact of each victim’s death upon their lives.” In
response to Shove’s request for penalty phase discovery and an
offer of proof, the prosecution claimed that it “h[ad] gone above
and beyond what the courts have considered to be adequate
notice,” under Penal Code section 190.3, asserting that “[t]he
defendants have been provided with not only reports, witness’
statements and the details of what potential penalty phase
witnesses will testify to, but have moreover been provided with
an updated statement in aggravation.” The record is, however,
unclear as to what reports were provided to the defense or the
contents thereof.
In her penalty phase opening statement, the prosecutor
stated that S.A. would testify that she was very close with her
grandparents and that after their deaths, “she couldn’t function”
in school, failed her first year of college, and attempted suicide
near the anniversary of their deaths because she “wanted to be
with them.” At sidebar, Shove’s counsel objected that he had not
received discovery concerning S.A.’s suicide attempt. The
prosecutor countered: “We gave notice of victim impact. That’s
all that’s required. Not every single thing they are going to say.”
Shove’s counsel argued that prior to trial, the court had ordered
the parties to provide each other with written witness

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statements,19 and that the late disclosure left the defense no
time to investigate.
When asked if there was an interview of S.A., one
prosecutor asserted: “No. Actually I just spoke with her and
she told me. Not just spoke, but I was informed by speaking
with her.” When asked when, the prosecutor responded: “I
didn’t — there is no report; there is no formal interview. It is
just her mom had told me, and then we flew her in.” The court
was “bother[ed]” by the nondisclosure and observed that the
suicide attempt was a “very specific claim.” The other
prosecutor stated: “[S.A.] just flew out yesterday, your honor,
when I believe [the other prosecutor] interviewed her. So maybe
they should have been informed of that yesterday.” Shove’s
counsel argued that he would have investigated the evidence but
that the defense was now “sandbagged” and requested that S.A.
be precluded from testifying. The court requested authority,
deferred ruling, and stated that S.A. should be made available
for interview during the lunch hour.
When the court reconvened, Hardin’s counsel stated that
he had interviewed S.A., who related that a deputy “interviewed
her, I think she said about a month ago when she gave that
information. And it may have been that the prosecutors had it
as early as last Tuesday or Wednesday. So it is a week.”
Hardin’s counsel objected to S.A.’s testimony pending receipt of

19
During a pretrial discussion concerning potential defense
witness statements, the court stated: “And remember . . . we’re
not going to play this game where we talk to a witness and we
didn’t write anything down or we didn’t tape record it. We’re
not going to play that game. If you talk to a witness or your
investigator talks to a witness, then somehow or another that
statement has to be memorialized so it can be turned over to the
prosecution.”
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records from the hospital where S.A. had been treated. Shove’s
counsel joined in the objection. The prosecutor countered that
Penal Code section 190.3 did not require the prosecutor to
provide a summation of the witnesses’ expected testimony.
After reviewing the cases the prosecution had cited, the court
agreed that the prosecution’s earlier disclosure had been
adequate and overruled the defense’s objection to S.A.’s
testimony.
S.A. later testified: “Right around a year of their
anniversary, I was just really upset about everything that was
happening. I wasn’t in the right state of mind, and I just wanted
to be with them. So I took a ton of aspirin, a big bottle of aspirin,
and just tried to fall asleep, hoping I would never wake up. . . .
And it was so horrible, and I just wanted to be with my grandma
again.”
2. Discussion
Shove contends the prosecution failed to give adequate
notice and discovery of victim impact testimony. The Attorney
General asserts that the prosecution met its obligations under
Penal Code section 190.3,20 as the statute does not require the
prosecution to provide the defense with a summation of
aggravation witnesses’ expected testimony. (See People v.
Benavides (2005) 35 Cal.4th 69, 107; People v. Seaton (2001)
26 Cal.4th 598, 676 [“Section 190.3 requires the prosecution
only to give the defense notice of the evidence it intends to
introduce, not to produce it”].) Shove argues that, regardless of

20
Penal Code section 190.3 provides, in pertinent part, “no
evidence may be presented by the prosecution in aggravation
unless notice of the evidence to be introduced has been given to
the defendant within a reasonable period of time as determined
by the court, prior to trial.”
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Penal Code section 190.3, the reciprocal discovery provisions of
Penal Code section 1054 et seq. required the prosecution to
disclose S.A.’s statements. (See People v. Gonzalez (2006)
38 Cal.4th 932, 955 (Gonzalez) [Pen. Code, § 190.3 “does not
itself provide for, or preclude, discovery. The discovery
provisions [of Penal Code section 1054 et seq.] coexist with this
notice provision” and “[w]e must give effect to both”].) The
Attorney General counters that we have never held that Penal
Code section 1054.1, subdivision (f), which requires the
prosecution to disclose reports of witness statements, applies at
the penalty phase, or to oral statements of witnesses (see People
v. Thompson (2016) 1 Cal.5th 1043, 1102–1104 (Thompson)),
and that so holding would contravene our prior interpretations
of Penal Code section 190.3. (See, e.g., People v. Scott (1997)
15 Cal.4th 1188, 1219 [defense not entitled to summation of
witnesses’ expected penalty phase testimony]; People v. Roberts
(1992) 2 Cal.4th 271, 330 [same].)
We need not resolve whether S.A.’s statements should
have been disclosed to the defense before trial; even if there was
error, it was harmless beyond a reasonable doubt. “The test for
state law error at the penalty phase of a capital trial is whether
there is a reasonable possibility the error affected the verdict,”
which is the “ ‘same in substance and effect’ ” as Chapman’s
beyond-a-reasonable-doubt standard.21 (Gonzalez, supra,

21
Accordingly, we need not resolve Shove’s claim that the
nondisclosure violated his federal constitutional due process
rights, as any assumed violation would be evaluated for
prejudice under the same standard. (See Gonzalez, supra,
38 Cal.4th at p. 961 [“To the extent the denial of discovery
implicated defendant’s federal due process rights [citation], the

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38 Cal.4th at pp. 960–961.) Here, there is no reasonable
possibility that the belated disclosure affected the penalty phase
verdict.22 Although Shove complains that the lack of notice
interfered with his ability to mitigate the evidence, Shove does
not “explain how he could have rebutted or impeached [S.A.] at
the penalty phase had he received notice earlier.” (People v.
Hinton (2006) 37 Cal.4th 839, 900; see also Thompson, supra,
1 Cal.5th at p. 1104 [“defendant does not explain how earlier
disclosure of [witness’s] oral statements would have made any
difference to her defense strategy”].) While Shove’s counsel
argued below that he would have investigated S.A.’s testimony
and subpoenaed her hospital records, but was denied the
opportunity to do so, it is difficult to imagine how the medical
records would be especially probative, and it is not unreasonable
to expect some more detailed proffer when such records are
sought. In sum, Shove makes no persuasive argument that he
would have done anything differently at trial had he had
information of the suicide attempt a week or a month earlier.
Additionally, though the court denied Shove’s counsel’s
request for a continuance, he was afforded an opportunity to
interview S.A. prior to her testimony. He then declined to cross-
examine S.A. Finally, evidence of S.A.’s suicide attempt was of

applicable test is whether the error is harmless beyond a
reasonable doubt. [Citation.] . . . Accordingly, we focus on the
‘reasonable possibility’ test, but our conclusion applies equally
to Chapman’s ‘reasonable doubt’ test”].)
22
Shove does not allege that Abbott’s testimony was
inadmissible. Indeed, as Shove acknowledges, we have held
that victim impact evidence concerning suicide attempts can
properly demonstrate how a victim’s death affected their
surviving family members. (See People v. Booker (2011)
51 Cal.4th 141, 193; People v. Wilson (2005) 36 Cal.4th 309,
357.)
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less weight than the circumstances of the crime and other
aggravating evidence of violent and threatening conduct. On
this record, there is no reasonable possibility any untimely
disclosure affected the penalty verdict.
C. Admission of Victim Impact Testimony
Shove argues that the trial court erroneously admitted
victim impact evidence outside the scope of Payne v. Tennessee
(1991) 501 U.S. 808, 827 (Payne). We see no error.
At the penalty phase, Collette testified to the emotional
impact of discovering her parents murdered and described their
good qualities and how she missed them. S.A. testified that she
was close to her grandparents and about how deeply their
deaths had affected her. Shove’s counsel then unsuccessfully
objected to further victim impact testimony as cumulative under
Evidence Code section 352.
Allison subsequently testified recounting memories of
being raised by her parents, during which Shove’s counsel
unsuccessfully objected that victim impact evidence does not
“allow the jury to get a full historical review of the victims.”
Allison then testified regarding her relationship with her
parents, their relationship with her children, and how learning
about her parents’ murders affected her and her children.
Elizabeth’s brother-in-law testified about how he had met the
Southers, their personalities, and how their deaths affected his
wife and children. After Shove’s counsel objected and moved to
strike this testimony as unrelated to the impact the Southers’
deaths had on him, personally, the brother-in-law testified on
redirect that the murders “destroyed” his life. Elizabeth’s sister
also testified about growing up with her sister and how the
murders affected her. Shove’s counsel later objected on
relevance and Evidence Code section 352 grounds to
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photographs of the Southers and their relatives introduced
during this testimony; the trial court overruled the objection,
finding it “illustrative” of how the surviving witnesses “have
been impacted and what the victims meant to them . . . .”
In Payne, the United States Supreme Court held that the
Eighth Amendment “erects no per se bar” on victim impact
evidence. (Payne, supra, 501 U.S. at p. 827.) Following Payne,
we held “that the injury inflicted is generally a circumstance of
the crime as that phrase is commonly understood”; thus,
“factor (a) of [Penal Code] section 190.3 allows evidence and
argument on the specific harm caused by the defendant,
including the impact on the family of the victim.” (People v.
Edwards (1991) 54 Cal.3d 787, 835.)
Acknowledging that we have rejected similar challenges to
admitting victim impact evidence as a circumstance of the crime
under Penal Code section 190.3, factor (a) (see Brown, supra,
31 Cal.4th at pp. 573–574; People v. Boyette (2002) 29 Cal.4th
381, 446, fn. 12), Shove nevertheless asserts, “to preserve for
federal review,” a claim that this factor is vague and overbroad
“at least to the extent that it permits victim impact evidence
describing the impact beyond those family members who were
personally present at the scene of the capital murder during or
immediately after the murder.” Shove asserts no persuasive
reason to revisit our conclusion. (People v. Ramirez (2021)
10 Cal.5th 983, 1025.)
Shove’s argument that Bosse v. Oklahoma (2016) 580 U.S.
1 undermines our precedent is without merit. There, the high
court ruled that Payne did not overturn the prohibition in Booth
v. Maryland (1987) 482 U.S. 496 on characterizations and
opinions from a victim’s family members about the crime, the
defendant, and the appropriate sentence. (Bosse, at p. 3.) No

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such testimony was given here, and the range of evidence Payne
permits is not as narrow as Shove suggests, so Bosse does not
help the argument. (See People v. Hartsch (2010) 49 Cal.4th
472, 509 [the Payne court “stated its holding in broad terms” and
“does not support the narrow limitations urged by defendant”];
see also People v. Johnsen (2021) 10 Cal.5th 1116, 1173
[“factor (a) is not so narrow” as to limit victim impact evidence
to a deceased victim]; Steskal, supra, 11 Cal.5th at p. 370 [victim
impact evidence is not limited to family members].) Nor do
Shove’s “citations to out-of-state authorities interpreting out-of-
state statutes [citations]. . . persuade us to reconsider our
precedent regarding the proper limits of victim impact
statement under Payne and [Penal Code] section 190.3, factor
(a).” (People v. Ramirez, supra, 10 Cal.5th at p. 1026; see also
Hartsch, at p. 509.)
D. Constitutionality of California’s Death Penalty
Statute and Instructions
Shove asserts that “[m]any features California’s capital
sentencing scheme violate the United States Constitution,”
though he acknowledges that we have “consistently rejected
cogently phrased arguments pointing out these deficiencies.”
Accordingly, he presents, and we again reject,23 the following
“routine” challenges to California’s death penalty statute, and
decline his invitation to reconsider our prior precedent on these
claims. (See People v. Schmeck (2005) 37 Cal.4th 240, 303–304.)
“Penal Code section 190.2 is not impermissibly broad and
adequately narrows the class of murders for which the death
penalty may be imposed. [Citation.] Penal Code section 190.3,

23
We assume, for purposes of this decision, that Shove has
not forfeited any of these contentions.
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 PEOPLE v. SHOVE
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factor (a), which permits the jury to consider the circumstances
of the crime in sentencing ‘does not result in arbitrary or
capricious imposition of the death penalty in violation of the
Fifth, Sixth, Eighth, or Fourteenth Amendments to the United
States Constitution.’ ” (People v. Wilson (2024) 16 Cal.5th 874,
942 (Wilson).)
“Because the jury’s penalty choice is a normative decision,
not a factual one [citation], California’s death penalty scheme
does not violate the federal Constitution for failing to require
written findings [citation] or unanimous findings as to the
existence of aggravating factors, prior convictions, or
unadjudicated criminal activity [citations]. Nor is the scheme
deficient because it does not require findings be made beyond a
reasonable doubt as to the existence of aggravating factors
(other than [Pen. Code,] § 190.3 factor (b) or (c) evidence), that
aggravating factors outweigh mitigating factors, or that death
is the appropriate penalty.” (Nadey, supra, 16 Cal.5th at
p. 191.) The high court’s decisions in Apprendi v. New Jersey
(2000) 530 U.S. 466, Ring v. Arizona (2002) 536 U.S. 584,
Blakely v. Washington (2004) 542 U.S. 296, and Hurst v. Florida
(2016) 577 U.S. 92 do not alter these conclusions. (Nadey, at
p. 191; Wilson, supra, 16 Cal.5th at pp. 942–943; People v.
Frazier (2024) 16 Cal.5th 814, 864 (Frazier).) “Nor does the
federal Constitution require the trial court to instruct the jury
‘that the prosecution has the burden of persuasion regarding the
existence of aggravating factors, the weight of aggravating
versus mitigating factors, and the appropriateness of a death
judgment. [Citations.] In addition, the trial court need not
instruct the jury that life without parole was presumed the
appropriate sentence.’ ” (Wilson, at p. 943.)

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“Instructing the jury that a death verdict is ‘warranted’ if
the aggravating factors are ‘ “so substantial” ’ in comparison
with the mitigating factors is not impermissibly broad or vague.
[Citation.] [¶] The trial court does not need to instruct the jury
that it must impose life without the possibility of parole if it
determines that mitigating factors outweigh aggravating
factors. [Citation.] [¶] The trial court did ‘not impermissibly
fail to inform the jurors regarding the . . . lack of need for
unanimity as to mitigating circumstances.’ ” (Frazier, supra,
16 Cal.5th at p. 864.) Nor does the federal Constitution require
that jurors be instructed that there was no burden of proof as to
mitigating factors. (People v. Johnson (2018) 6 Cal.5th 541,
593–594.) There is also “ ‘ “ ‘no requirement jurors be instructed
there is a “ ‘ “presumption of life . . . .” ’ ” ’ ” ’ ” (Frazier, at
p. 864.)
“ ‘Use of adjectives such as “extreme” and “substantial” in
[Penal Code] section 190.3, factors (d) and (g), respectively, does
not create a constitutionally impermissible barrier to the jury’s
consideration of a defendant’s mitigating evidence,’ ” “ ‘[t]here
was no requirement that inapplicable sentencing factors be
deleted,’ ” and “[t]he trial court was not required to ‘define which
of the statutory factors could be aggravating and which were
only mitigating.’ ” (Frazier, supra, 16 Cal.5th at pp. 864–865.)
Finally, “ ‘[c]omparative intercase proportionality review
by the trial or appellate courts is not constitutionally required,’ ”
“ ‘[t]he death penalty scheme does not violate equal protection
principles “by providing significantly fewer procedural
protections for persons facing a death sentence than are afforded
persons charged with noncapital crimes,” ’ ” and “ ‘[t]he
imposition of the death penalty under California’s law does not

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Opinion of the Court by Kruger, J.

violate international law or prevailing norms of decency.’ ”
(Frazier, supra, 16 Cal.5th at p. 865.)
V. CUMULATIVE ERROR
Shove argues that even if we conclude no individual error
prejudicial, the cumulative effect of guilt and penalty phase
errors warrants reversal of the judgment. We have concluded
there was error, or assumed error but concluded there was no
prejudice, in the admission of the audio recording (ante,
pt. II.C.), the denial of Shove’s counsel’s request to impeach
Kenneth with inconsistent statements (ante, pt. III.A.), the
prosecution’s appeals to sympathy (ante, pt. III.B.2.), and the
failure to provide specific timely disclosure of S.A.’s attempted
suicide (ante, pt. IV.B.). Even considered in combination, these
errors do not “ ‘rise by accretion to the level of reversible and
prejudicial error.’ ” (People v. Lamb (2024) 16 Cal.5th 400, 455.)
VI. DISPOSITION
The judgment is affirmed.
KRUGER, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
GROBAN, J.
EARL, J.*

*
Administrative Presiding Justice of the Court of Appeal,
Third Appellate District, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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 PEOPLE v. SHOVE
S161909

Dissenting Opinion by Justice Evans

Under Batson v. Kentucky (1986) 476 U.S. 79 and People
v. Wheeler (1978) 22 Cal.3d 258, a defendant has the right to
challenge a prosecutor’s peremptory challenges as
impermissibly based on discriminatory bias. The
Batson/Wheeler inquiry consists of three steps. First, the
opponent of the strike must make out a prima face case by
showing that the totality of the relevant facts gives rise to an
inference of discriminatory purpose in the exercise of
peremptory challenges. Second, if the prima facie case has been
made, the burden shifts to the proponent of the strike to explain
adequately the basis for excusing the juror by offering
permissible, nondiscriminatory justifications. Third, if the
party has offered a nondiscriminatory reason, the trial court
must decide whether the opponent of the strike has proved the
ultimate question of purposeful discrimination. (People v. Scott
(2015) 61 Cal.4th 363, 383 (Scott).) Questions have frequently
arisen as to which “procedure applies when the trial court,
having determined that no prima facie case was established and
having heard the proffered justifications, goes ahead and makes
an alternative holding that those reasons were genuine.” (Id. at
p. 386.) In Scott, recognizing that “our jurisprudence on this
issue has not always been entirely consistent” we clarified the
rules governing this process. (Ibid.)
Emphasizing that our rule should “be clear, predictable,
and easy to apply” (Scott, supra, 61 Cal.4th at p. 389), we

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 PEOPLE v. SHOVE
Evans, J., dissenting

formulated a straightforward holding coupled with an
important exception. Where “(1) the trial court has determined
that no prima facie case of discrimination exists, (2) the trial
court allows or invites the prosecutor to state his or her reasons
for excusing the juror for the record, (3) the prosecutor provides
nondiscriminatory reasons, and (4) the trial court determines
that the prosecutor’s nondiscriminatory reasons are genuine, an
appellate court should begin its analysis of the trial court’s
denial of the Batson/Wheeler motion with a review of the first-
stage ruling.” (Id. at p. 391.) If the appellate court “agrees with
the trial court’s first-stage ruling, the claim is resolved. If the
appellate court disagrees, it can proceed directly to review of the
third-stage ruling, aided by a full record of reasons and the trial
court’s evaluation of their plausibility.” (Ibid.)
However, we underscored that the prosecutor’s
justifications, a component of the second and third steps, can
play no role, either at the trial level or on appeal, in negating a
prima facie case at the first step. (Scott, supra, 61 Cal.4th at p.
390.) Thus, we excepted from the above procedure situations in
which the trial court “purported to rule on the first stage only
after the prosecutor had already offered a statement of reasons.”
(Id. at p. 387, fn. 1.) Where a trial court “solicits an explanation
of the strike without first declaring its views on the first stage,
we infer an ‘implied prima facie finding’ of discrimination and
proceed directly to review of the ultimate question of purposeful
discrimination.” (Ibid.) As the majority correctly holds, Scott’s
footnote 1 exception applies here. (Maj. opn., ante, at pp. 56–
59.)
However, the majority makes two missteps. First, it
credits the trial court with making a complete third-stage
finding by remarking that the justifications were “race-neutral.”

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 PEOPLE v. SHOVE
Evans, J., dissenting

However, the record does not substantiate that such a finding,
which requires a determination “that the prosecutor’s
nondiscriminatory reasons are genuine,” ever occurred. (Scott,
supra, 61 Cal.4th at p. 391.) The majority’s contrary analysis
contravenes the United States Supreme Court’s recent decision
in Pitchford v. Cain (2026) ___ U.S. ___ [146 S.Ct. 1345]
(Pitchford), issued after briefing and argument in this case.
Second, the majority adds an additional and unnecessary
exception to the Scott footnote 1 exception, to address the
prosecutor’s failure to provide any justification for one of the
jurors at issue here. As to the juror for whom no justification
was provided, the majority decides to review the
Batson/Wheeler challenge at stage one, despite reviewing all the
other jurors at stage three. This piecemeal review makes no
sense in light of the trial court’s singular and global finding of
no prima facie case. For these reasons, I respectfully dissent
and would reverse the judgment.
I. PROCEDURAL BACKGROUND
As recounted by the majority, after Shove’s
Batson/Wheeler objection, the prosecutor provided justifications
for her challenges of four Black prospective jurors: Prospective
Jurors Nos. 218, 202, 215, and 7. (Maj. opn., ante, at pp. 54–55.)
However, in what the majority describes as a “wrinkle,” the
prosecutor did not proffer a reason for the first juror excused,
Prospective Juror No. 206. (Maj. opn., ante, at p. 58.)
Immediately after the prosecutor had provided her reasons, and
without giving the defendant an opportunity to respond, the
trial court concluded: “I am going to find — I didn’t find a prima
facie case, and I am not finding a prima facie case. However, I
did allow the prosecution to state the reasons for the exercise of
the challenges. And I do believe that the reasons that have been

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 PEOPLE v. SHOVE
Evans, J., dissenting

indicated for the African/American jurors that have been
excused are race-neutral reasons, and I am denying the Wheeler
motion at this time.”
II. PROSPECTIVE JURORS NOS. 218, 202, 215, 7
Because the prosecutor gave reasons prior to the trial
court’s finding of no prima facie case, the parties dispute
whether this is a first or a third stage Batson/Wheeler claim.
Citing Scott, the majority correctly explains our rule for “hybrid”
Batson/Wheeler claims in the scenario described above: where
the “ ‘trial court solicits an explanation of the strike without first
declaring its views on the first stage, we infer an “implied prima
facie finding” of discrimination and proceed directly to review of
the ultimate question of purposeful discrimination.’ ” (Maj.
opn., ante, at p. 56, citing Scott, supra, 61 Cal.4th at p. 387,
fn. 1.) The Attorney General argues, and the majority accepts,
that the court did not explicitly “solicit” the prosecutor’s
justifications here. But Scott was not only concerned with
reasons that were affirmatively solicited. (Scott, at p. 387, fn. 1
[exception applies whenever prosecutor “offered a statement of
reasons” prior to the trial court’s prima facie finding].) As our
subsequent cases have reaffirmed, under Scott, “when a trial
court merely ‘listens to the prosecutor’s reasons before
purporting to rule on the first-stage inquiry’ ” reviewing courts
should proceed to the third step of Batson/Wheeler. (Maj. opn.,
ante, at p. 57, quoting People v. Krebs (2019) 8 Cal.5th 265, 290
(Krebs) & citing People v. Hardy (2018) 5 Cal.5th 56, 75–76.)
This rule makes sense because the trial court’s determination at
the first stage should be independent of any reasons that the
prosecution gives for the challenge. Where the trial court has
heard the prosecutor’s reasons for the challenge, a reviewing
court cannot ascertain whether the prima facie finding was

4
 PEOPLE v. SHOVE
Evans, J., dissenting

impermissibly influenced by the prosecution’s challenges. Thus,
our precedent instructs appellate courts to infer a prima facie
case even if the trial court, after hearing the reasons, says it
found no prima facie case.1 The calendar therefore properly

1
In concluding, as Scott holds, that the only feasible
solution is to infer a prima facie case, I note that there exists
significant independent support for a prima facie finding of
discrimination here. As the majority notes, the “prosecution did
exercise five of its first eight challenges against Black
prospective jurors” (maj. opn., ante, at p. 61), and thus the raw
strike rate (62.5 percent) is quite high. (See People v. Holmes,
McClain and Newborn (2022) 12 Cal.5th 719, 761 [strike rate of
50 percent “important” and reflected “obvious disparity”]; People
v. Sánchez (2016) 63 Cal.4th 411, 439 [strike rate of 40 percent,
“[c]onsidered alone . . . might suggest a discriminatory
purpose”].) Moreover, the victims in this case were White, and
the codefendant and actual killer, for whom the same jury was
being selected, was Black. (Maj. opn., ante, at p. 60.) In finding
no prima facie case, the majority relies heavily on the extremely
diverse composition of the ultimate jury, and the prosecutor’s
acceptance of prior panels including Black jurors as evidence of
the prosecutor’s “good faith.” (Id. at pp. 61–62.) Notably,
however, this postruling information was not before the trial
court at the time it made the ruling now under review. (See
People v. Reed (2018) 4 Cal.5th 989, 999, 1022 (dis. opn. of Liu,
J.) [expressing skepticism regarding consideration of such after-
the-fact evidence and concluding that “[p]ostruling
developments, such as the final percentage of strikes used on
black jurors, are better understood as going to the ultimate issue
of whether the prosecutor acted with discriminatory intent, not
to the preliminary issue of whether the prosecutor should have
been required to state reasons for a strike at the time the
challenge was made”]; id. at p. 1031 (dis. opn. of Kruger, J.)
[dissenting “for the reasons expressed in Justice Liu’s dissenting
opinion”].)
The majority here does not address Scott’s concern that
the prosecutor’s provision of justifications prior to the trial

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 PEOPLE v. SHOVE
Evans, J., dissenting

proposes that, for “challenged jurors for whom the prosecutor
proffered justifications, we proceed directly to the third stage of
the analysis” (maj. opn., ante, at p. 58) which it finds does not
demonstrate discrimination. (Maj. opn., ante, at pp. 72–90.)
The problem with the majority’s decision to conduct such
a third stage analysis is that the trial court did not complete a
third stage finding here. As Justice Liu recently explained, in a
dissenting opinion in which I joined, the trial court’s mere
identification of the prosecutor’s reasons as “race neutral” does
not complete the third step of Batson/Wheeler analysis. (People
v. Aguirre (2025) 18 Cal.5th 629, 719–725 (dis. opn. of Liu, J.)
(Aguirre); id. at p. 720 [trial court’s statement that the reasons
“ ‘[t]hey appear to be race neutral,’ ” did not adequately express
a third stage finding]; see also id. at pp. 736–737, fns. 5 & 6 (dis.
opn. of Evans, J.) [collecting state and federal cases holding that
an identification of a justification as “race-neutral” is
insufficient to complete Batson stage three].)
The Aguirre majority disagreed but anchored its holding
to the particular facts of that case. (See Aguirre, supra, 18
Cal.5th at pp. 664–665 & fn. 15 [“viewed in context” the trial

court’s ruling could have influenced its decision-making.
Perhaps if this were a case in which no reasonable judge would
have found a prima facie case, this procedural problem could be
overlooked. But here a contrary finding — that a prima facie
case had been established — would be entirely consistent with
the existing record. In other words, this is exactly the type of
case that demonstrates the importance of the rule announced in
Scott: a case in which the trial court may have overlooked a high
strike rate and other evidence raising an inference of
discrimination because it agreed with the reasons the
prosecutor provided and improperly conflated Batson/Wheeler’s
first and third steps in assessing the prima facie case.

6
 PEOPLE v. SHOVE
Evans, J., dissenting

court’s language reflected a third stage finding and noting that
“whether the court is applying the correct standard in making a
ruling may be unclear in other trial court proceedings.”].) Here,
unlike in the analysis adopted in Aguirre, there are no signs that
the trial court was “actively mapping the reasons given by the
prosecutor against what it recalled as the prospective juror’s
responses to questions, instead of accepting the prosecutor’s
reasons without any critical evaluation.” (Id. at p. 665.) To the
contrary, here, the trial court said nothing indicating any type
of analysis of the prosecutor’s reasons. Indeed, the trial court
did not notice that the prosecutor failed to give any reason at all
for one of the jurors at issue. Reading the record, it appears that
the trial court seems to have just been “ ‘allow[ing] the
prosecution to state the reasons’ ” (maj. opn., ante, at p. 55), but
did not independently evaluate them.
As the majority here accepts, the “trial court’s comments
about the race neutrality of the prosecutor’s reasons did not
explicitly address the prosecutor’s credibility.” (Maj. opn., ante,
at p. 69, italics added.) But nothing in the record even implicitly
suggests that the trial court actively attempted to assess the
prosecutor’s credibility or otherwise engaged in an assessment
of the prosecutor’s subjective genuineness. (Cf. Aguirre, supra,
18 Cal.5th at pp. 664–665; see also Dolphy v. Mantello (2d Cir.
2009) 552 F.3d 236, 239 [ruling by trial court “ ‘I’m satisfied that
is a race neutral explanation, so the strike stands’ ” was “such a
conclusory statement [that it] does not necessarily indicate —
even by inference — that the trial court credited the
prosecution’s explanation”].) Indeed, the Attorney General
concedes that the trial court intended only a stage one finding,
stating in his briefing that “[t]he context of the discussion shows
that the court and all counsel believed this to be a stage one

7
 PEOPLE v. SHOVE
Evans, J., dissenting

analysis” and that “the record shows the trial court did not
intend to proceed past the first stage.”
Aside from referring to the trial court’s observation that
the prosecutor’s reasons were “race-neutral,” the only context
the majority provides is that defense counsel “did not dispute
the factual bases or sincerity of any of the prosecutor’s reasons.”
(Maj. opn., ante, at pp. 69–70.) But this turns the record on its
head. The reason that defense counsel did not dispute the
credibility of the prosecutor’s justifications is that the trial court
did not give the defense an opportunity to do so. The trial court
here immediately responded to the prosecutor’s justifications by
asserting that there was no prima facie case and cut off all
further discussion by stating “and . . . the reasons . . . are race-
neutral reasons, and I am denying the Wheeler motion at this
time.” The record reflects the sidebar on the Batson/Wheeler
motion then ended and the trial court stated: “All right, the
peremptory is with the defense.” The court’s failure to give an
opportunity for defense input prior to denying the motion is
further indication that the trial court was not engaging in a full
third-stage analysis. Thus, the question is not whether we
should defer to a trial court’s stage three finding (maj. opn., ante,
at p. 70), but whether the trial court completed the third stage
at all.
The United States Supreme Court’s decision in Pitchford,
supra, ___ U.S. ____ [146 S.Ct. 1345], issued after briefing and
argument in this case, dictates the answer. In Pitchford, after
a defense challenge, the prosecutor offered reasons for striking
each of the jurors, and “the trial court declared each to be race
neutral.” (Id. at p. ___ [146 S.Ct. at p. 1350].) “Upon hearing
the prosecutor’s reason for the last strike, the trial court stated
that ‘[t]he Court finds that to be race neutral as well,’ and

8
 PEOPLE v. SHOVE
Evans, J., dissenting

pivoted immediately to the defense’s peremptory strikes.”
(Ibid.) At that time, as in this case, “the trial court did not afford
defense counsel an opportunity to rebut as pretextual the
prosecutor’s race-neutral reasons for striking the four black
jurors, nor did the trial court make any findings regarding
whether the prosecutor’s stated reasons were pretextual.”
(Ibid.) As the Supreme Court described, “[i]n other words . . .
the trial court ‘full-stop ended its Batson analysis’ at step two
and never proceeded to step three.” (Ibid.)
The United States Supreme Court detailed how, on such a
record, no third stage finding was made. “After a prosecutor
asserts race-neutral reasons for a peremptory strike, the defense
counsel must at least have an opportunity to argue that the
asserted race-neutral reasons were not the actual reasons —
that is, the reasons were pretextual. Then, the trial court can
determine whether those asserted reasons were the actual
reasons or instead were pretextual.” (Pitchford, supra, ____ U.S.
at p. ___ [146 S.Ct. at p. 1353].) “In this case, whether due to
confusion, oversight, an overly hurried jury selection process, or
some other cause, things broke down, and the ordinary trial-
court procedure for resolving Batson claims at step three never
occurred.” (Ibid., italics added.)
Comparing the record in Pitchford and this case reveals
that the purported “stage three” findings in both cases are
virtually indistinguishable. In both cases, the trial court (1)
engaged in no analysis of the justifications, (2) noted that the
reasons provided by the prosecutor were “race-neutral,” and (3)
denied the motion without providing the defendant any
opportunity to contest the prosecutor’s reasons as pretextual.

9
 PEOPLE v. SHOVE
Evans, J., dissenting

The majority attempts to distinguish Pitchford on two
bases. First, it suggests that the high court’s holding was
directed solely at Mississippi’s argument that Pitchford had
waived his Batson claim and is thus “inapplicable . . . because
waiver is not at issue here.” (Maj. opn., ante, at p. 71, fn. 15.)
This statement is an incorrect articulation of the high court’s
holding regarding what constitutes clearly established federal
law under Batson.
As the Pitchford opinion itself notes, under the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA;
Pub.L. No. 104-132 (Apr. 24, 1996) 110 Stat. 1214), the
“standard for reviewing claims on federal habeas is deferential
to the state court.” (Pitchford, supra, ____ U.S. at p. ___ [146
S.Ct. at p. 1353]; id. at p. ___ [146 S.Ct. at p. 1351] [“To obtain
federal habeas relief under [AEDPA], Pitchford was required to
clear a high bar — namely, to establish that the Mississippi
Supreme Court’s decision ‘was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States’ or ‘was
based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.’ ”], citing
28 U.S.C. §§ 2254(d)(1), (2).)
The high court was able to grant relief in Pitchford,
despite these deferential requirements, because it found that
the Batson procedure had never been properly completed. (See
Pitchford, supra, ____ U.S. at p. ___ [146 S.Ct. at p. 1353] [“we
agree with the U. S. District Court that the Mississippi Supreme
Court unreasonably applied the clearly established Batson
precedents and unreasonably determined that Pitchford waived
his opportunity to rebut the prosecutor’s asserted race-neutral
reasons for the peremptory strikes of four black prospective

10
 PEOPLE v. SHOVE
Evans, J., dissenting

jurors” (italics added)].) In slightly different, but similarly
conjunctive phrasing, the United States District Court, with
which the high court explicitly “agree[d]” (ibid.) “concluded that
the Mississippi Supreme Court had unreasonably applied
Batson and had unreasonably determined that Pitchford waived
his Batson objection” (id. at p. ___, italics added [146 S.Ct. at p.
1351]). (See also id. at p. ___ [146 S.Ct. at p. 1347] [the District
Court “explained that no state court had conducted the full
three-step Batson inquiry, and that the trial court had
‘thwarted’ the ‘attempt by Pitchford’s counsel to argue pretext.’ ”
(italics added)].) The high court specifically concurred in the
District Court’s conclusions regarding the deficient Batson
process. (Id. at p. ___ [146 S.Ct. at p. 1353] [“the ordinary trial-
court procedure for resolving Batson claims at step three never
occurred”]; id. at p. ___, fn. 3 [146 S.Ct. at p. 1352, fn. 3] [“the
more fundamental point here is that the Mississippi trial court
prevented Pitchford’s counsel from pursuing a Batson argument
at step three”].)
To offer, as the majority does, that Pitchford’s holding is
limited to waiver ignores the high court’s holding that the state
courts were not only wrong, but objectively unreasonable, in
their assessment of clearly established Batson precedent in
determining that the Batson procedure had been properly
followed. (See White v. Woodall (2014) 572 U.S. 415, 419 [under
AEDPA, an unreasonable application of Supreme Court
holdings must be objectively unreasonable, not merely wrong;
even clear error will not suffice].)
Accepting that the high court’s opinion could “be read as
commenting on a trial court’s duties at the third stage of the
Batson/Wheeler inquiry” (maj. opn., ante, at p. 71, fn. 15), the
majority also attempts to distinguish Pitchford on the facts. It

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 PEOPLE v. SHOVE
Evans, J., dissenting

claims that in Pitchford, unlike in this case, after denying the
motion, “the trial court launched into other court business”
whereas in Shove’s case “the defense remained resolutely
silent” in the face of the trial court’s ruling. (Ibid.) But with
respect to the Batson ruling, the trial court statements in these
two cases are virtually identical. In Pitchford, the trial court
stated, “The Court finds that to be race neutral as well. So now
we will go back and have the defense starting at [a peremptory
challenge for prospective juror] 37.” Here, the trial court stated,
“And I do believe that the reasons that have been indicated for
the African/American jurors that have been excused are race-
neutral reasons, and I am denying the Wheeler motion at this
time” followed by, “All right, the peremptory is with the
defense.” In other words, in both Pitchford and here, the trial
court “launched into other court business” — indeed, the exact
same business, the continued exercise of defense peremptories.
And, just as in Pitchford, defense counsel made no effort during
the Batson hearing to renew the objection or continue arguing
after the trial court had ruled.2
The majority also contends that the cases are distinct
because “there is no indication that the trial court in any way
‘ “thwarted” ’ or ‘prevented’ counsel from raising any such
concerns.” (Maj. opn., ante, at p. 72, fn. 15.) In support of this
claimed distinction, it notes that, in Pitchford, after being
convicted and sentenced to death, the defendant filed a motion

2
That defense counsel did not attempt to rebut the
prosecution’s justifications (maj. opn., ante, at p. 71, fn. 15) is
understandable and hardly surprising. The trial court had just
denied the motion, finding no prima facie case. Immediately
after denying the motion, as in Pitchford, the trial court
“launched into other court business.” (Ibid.)

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 PEOPLE v. SHOVE
Evans, J., dissenting

for a new trial where, among numerous other claims, he
“ ‘advance[ed] the argument that he was prevented from making
during jury selection — that the prosecutor’s stated reasons for
the peremptory challenges were pretextual.’ ” (Ibid.) The
majority’s citation merely proves the contrary point. The high
court’s conclusion that Pitchford was “prevented” from making
an argument did not depend on the motion for new trial or
statements made by the trial court in that context. Like Shove,
Pitchford was “prevented” from making a full Batson claim
“during jury selection” (ibid., italics added). This is because in
both cases, the trial court abruptly and deficiently ruled that the
reasons were “race neutral” and then immediately pivoted to
subsequent peremptories, without giving any time for defense
input on the matter.3
There is one meaningful distinction between this case and
Pitchford. In this case, unlike in Pitchford, the trial court had
first articulated a succinct ruling that there was no prima facie
case. But the existence of this first stage ruling provides even
less reason than in Pitchford to conclude that the trial court
conducted a third stage finding since it would have been
unnecessary to do so. In other words, the trial court had no need

3
In Pitchford, counsel also renewed the Batson objection at
the close of jury selection. But nothing therein distinguishes
Pitchford from this case. The ruling at the close of jury selection
in Pitchford merely reiterated, and rested upon, the trial court’s
prior ruling that the reasons were “race neutral.” (See
Pitchford, supra, ____ U.S. at p. ___ [146 S.Ct. at p. 1350] [trial
court’s ruling: “ ‘I think you already made those, and they are
clear in the record. For the reasons previously stated, first the
Court finds there to be no — well, all the reasons were race
neutral as to members that were struck by the district attorney’s
office. And so the, the Court finds there to be
no Batson violation’ ”].)

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 PEOPLE v. SHOVE
Evans, J., dissenting

to make a third stage finding, because it had already made a
dispositive first stage finding. Moreover, the trial court’s failure
to notice that the prosecution provided no justification at all for
one of the challenged jurors strongly signals that the trial court
did not intend to resolve the third stage when it remarked that
the prosecutor’s reasons were “race-neutral.” If the trial court
had actually aimed to make an alternative finding of a third
stage denial for all jurors, it seems unlikely that it would have
overlooked the prosecution’s failure to justify the removal of one
of the jurors.
It is true that our precedent has allowed “the term ‘race
neutral’ as a shorthand for the conclusion that the striking
party’s actual reasons for striking the juror were not racially
discriminatory.” (Maj. opn., ante, at p. 72, fn. 15.) However,
Pitchford calls into question the propriety of any blanket
assumption that a trial court’s statement that a prosecutor’s
reasons are “race neutral” necessarily suggests that it has
completed the third step and has found the reasons credible.
Instead, Pitchford finds a violation of clearly established Batson
law on facts that are materially indistinguishable from the case
at hand.
Notwithstanding the trial court’s finding of no prima facie
case, as the majority correctly holds, the procedural facts of this
case and our decision in Scott mandate that we nonetheless
“infer” a prima facie finding and move to stage three. (Maj. opn.,
ante, at p. 56; Scott, supra, 61 Cal.4th at p. 387, fn. 1.) At this
point, the only possible solutions are a limited remand to allow
the trial court to actually complete the third stage review, or a
determination of whether completion of this process is feasible
in light of the significant passage of time. (People v. Johnson
(2006) 38 Cal.4th 1096, 1101–1104; People v. Snow (1987) 44

14
 PEOPLE v. SHOVE
Evans, J., dissenting

Cal.3d 216, 227 (Snow) [in light of six-year delay, finding
remand infeasible].)4
III. PROSPECTIVE JUROR NO. 206
As discussed above, the prosecutor here never provided
any justification for her exclusion of Prospective Juror No. 206.
The majority circumvents this inadequacy in the record by
reviewing Prospective Juror No. 206 at the prima facie stage.
But the prosecutor’s failure to explain why she excluded this
prospective juror does not provide a reason to create a new
exception to our practice of implying a prima facie finding when
the prosecutor’s justifications precede the trial court’s ruling of
no prima facie case. (Scott, supra, 61 Cal.4th at p. 387, fn. 1.)
The majority reasons that the trial court’s purported third
stage ruling “could not have addressed reasons related to
Prospective Juror No. 206” and therefore decides to “review the
court’s denial of Shove’s Batson/Wheeler motion as to
Prospective Juror No. 206 as a first-stage denial” while

4 As in Snow, there are significant reasons to doubt, after
the passage of nearly 20 years, that the judge could accurately
assess the prosecutor’s reasons for any juror. Such an effort
would demand that the trial court “ ‘recall the circumstances of
the case, and the manner in which the prosecutor examined the
venire and exercised h[er] other challenges.’ ” (Snow, supra, 44
Cal.3d at p. 227.) Although it is a somewhat closer question for
the jurors for whom justifications were contemporaneously
provided, with respect to Juror No. 206, for whom no
justification was provided, a limited remand would be infeasible.
(Cf. Snyder v. Louisiana (2008) 552 U.S. 472, 486, [no “realistic
possibility” that the question of whether discriminatory intent
was the determinative cause of the disputed strike “could be
profitably explored further on remand at this late date, more
than a decade after petitioner’s trial”].)

15
 PEOPLE v. SHOVE
Evans, J., dissenting

“proceed[ing] directly to the third stage of the analysis” for the
other prospective jurors at issue. (Maj. opn., ante, at pp. 59, 58.)
The problem with this approach is that, based on the record, it
appears that the trial court’s third stage ruling, assuming one
occurred, intended to address all targeted jurors despite the fact
the prosecution never actually addressed one of the strikes. The
most obvious reading of the record is that the trial court failed
to pay sufficient attention, not that it somehow excepted one of
the jurors from its purported third stage finding.
The absence of any justification for striking Prospective
Juror No. 206 does not compel an exception to Scott’s footnote 1.
To be sure, the trial court’s ruling on a prima facie case would
not have been affected by justifications provided for Prospective
Juror No. 206, since none were provided. However, since all
jurors were considered and ruled upon together, it is impossible
to know whether the justifications that were provided
improperly influenced the trial court’s prima facie finding.
Indeed, an improper influence appears highly likely. The trial
court undeniably “listen[ed] to” the prosecutor’s justifications
prior to making a finding of no prima facie case. (Krebs, supra,
8 Cal.5th at p. 290.) Moreover, in the very same sentence, it also
concluded that all four of the reasons were “race-neutral” and,
at least in the majority’s view, genuine. It is difficult to imagine
that the trial court’s finding that all jurors for whom
justifications were given had been validly stricken would not
influence its assessment of the overall pattern of strikes here.
To support its bifurcated analysis, the majority cites our
decision in People v. Montes (2014) 58 Cal.4th 809, 852 (Montes),
where we analyzed some prospective jurors at stage three and
another prospective juror at stage one. (Maj. opn., ante, at p.
59.) Although Montes likewise involved a prospective juror for

16
 PEOPLE v. SHOVE
Evans, J., dissenting

whom no justification was given, Montes provides no support for
the majority’s holding. Montes was a pre-Scott decision and thus
could not have addressed the rule we first adopted in Scott. In
the Montes decision, the prosecutor stated his reasons for the
exclusion for one (of two) prospective jurors only after “the trial
court appeared to rule a prima facie case had not been made” as
to these two jurors. (Montes, at p. 853.) Thus, although the
Montes opinion found that appellate review of the prima facie
case was permissible for some jurors, including the juror for
whom no reason was given, but not others (id. at pp. 853–855),
it did so where the trial court’s prima facie finding for those
jurors was wholly independent of the reasons given by the
prosecutor. Therefore, Montes does not suggest an exception to
the rule we announced in Scott: that when the prosecutor
provides her reasons prior to the finding of no prima facie case
that we nonetheless “infer” a prima facie finding and move to
Batson/Wheeler’s third stage. (Scott, supra, 61 Cal.4th at p. 387,
fn. 1.)
Montes also addressed a situation in which the trial court
itself treated the prima facie case for prospective jurors
differently, demanding justifications only for some prospective
jurors, but appearing to find no prima facie case as to others.
(Montes, supra, 58 Cal.4th at p. 853.) Thus, there was logic in
our parallel review of the trial court’s decision: analyzing
distinctly different groups of jurors which the trial court itself
had analyzed separately. But here, the trial court treated all
jurors the same — with a single prima facie finding. It seems
peculiar that we should nonetheless analyze these prospective

17
 PEOPLE v. SHOVE
Evans, J., dissenting

jurors at different stages of the Batson/Wheeler process.5
Rather than being compelled by our precedent, the majority’s
creation of a new exception for a rule intended to be “clear,
predictable, and easy to apply” (Scott, supra, 61 Cal.4th at p.
389), seems to be driven by the absence of any justification
under which we could uphold the trial court’s ruling at stage
three with respect to a juror for whom no reason was ever
provided. Perhaps such an explanation exists. But given Scott’s
requirement that we proceed to stage three in this circumstance,
such an explanation must be provided and ruled upon for the
strike to be upheld. Since this was never done for Prospective
Juror No. 206, and because a limited remand after nearly two
decades is infeasible, affirming the trial court’s ruling in this
case is unwarranted.

5
The majority supports its approach by offering that it is
“unlikely” that “when the trial court went on to rule on the
prosecutor’s reasons at the third stage, it intended to rule on
reasons the prosecutor had never, in fact, proffered.” (Maj opn.,
ante, at p. 59, fn. 12.) But there is no hint in the record that the
trial court intended to apply its global third stage ruling only to
some jurors and not others. Instead, the prosecutor forgot to
provide a reason for one of the jurors and the defense failed to
point out the deficiency to the trial court. It is unreasonable to
assume that the trial court recognized the parties’ failures and
implicitly altered its ruling from the normal course. The court
ruled on all jurors with a single statement — without saying
anything to indicate it was differentiating between any of the
jurors. Instead, the most reasonable conclusion is that the trial
court, like the parties, failed to notice that no reason was
provided for striking Juror No. 206.

18
 PEOPLE v. SHOVE
Evans, J., dissenting

For the reasons articulated above, I would reverse the
judgment in its entirety. I therefore respectfully dissent.
EVANS, J.

I Concur:
LIU, J.

19
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.

Name of Opinion People v. Shove
__________________________________________________________

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

__________________________________________________________

Opinion No. S161909
Date Filed: August 13, 2026
__________________________________________________________

Court: Superior
County: Los Angeles
Judge: Kathleen A. Kennedy
__________________________________________________________

Counsel:

Mary K. McComb, State Public Defender, Kathleen M. Scheidel,
Assistant State Public Defender, and Alyssa Mellott, Deputy State
Public Defender, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler
and Lance E. Winters, Chief Assistant Attorneys General, James
William Bilderback II, Assistant Attorney General, Joseph Lee and
Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and
Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):

Alyssa Mellott
Deputy State Public Defender
1111 Broadway, Suite 1000
Oakland, CA 94607
(510) 267-3300

Blythe J. Leszkay
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 269-6191