P. v. Stearman

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Filed 2/6/17 P. v. Stearman CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
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THE PEOPLE,
Plaintiff and Respondent,
v.
DANNY JOE STEARMAN,
Defendant and Appellant.
C075937
(Super. Ct. No. CRF132279)
THE PEOPLE,
Plaintiff and Respondent,
v.
DAVID EARL BRISTOW,
Defendant and Appellant.
C076323
(Super. Ct. No. CRF132279)
Driving to work at around midnight on a desolate Yolo County Line road, his van
slowed by a partially deflated tire, Mark Cullen’s path was suddenly blocked by a white

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pickup that sped ahead and then stopped in front of him. Forced from his vehicle at
gunpoint by a passenger from the pickup, Cullen tried to run but was stopped, beaten,
knifed, shot, run over by his own van and left for dead, but lived to identify his attackers,
defendant Danny Joe Stearman, the uncle of Cullen’s ex-wife with whom he had been
embroiled in a heated child custody dispute and David Earl Bristow, Stearman’s friend,
paid to assist in this murderous enterprise. Convicted in a joint trial before separate juries
of conspiracy to commit murder, attempted murder, assault, and associated
enhancements, they appeal. Neither disputes the sufficiency of the evidence, though
Stearman contends the court erred in admitting certain evidence—testimony from his
brother, the father of Cullen’s ex-wife, regarding advice he received from lawyers as to
what would happen to his grandchildren if one of the parents were to die—and in
excluding other evidence, testimony regarding Cullen’s drug use prior to 1998. Bristow’s
single argument on appeal is that the court erred in denying his Batson/Wheeler motion.1
We shall affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
The Indictment
A consolidated amended indictment charged Stearman and Bristow with
conspiracy to commit murder (Pen. Code § 182, subd. (a)(1)) (count 1),2 attempted
murder (§§ 21a, 664, subd. (a), 187, subd. (a)) (count 2), and assault with a firearm
(§ 245, subd. (a)(2)) (count 3). The indictment charged Stearman individually with
assault with a deadly weapon (§ 245, subd. (a)(1)) (count 4), and Bristow individually
with assault with a deadly weapon (§ 245, subd. (a)(1)) (count 5).
1Batson v. Kentucky (1986) 476 U.S.79 [90 L.Ed.2d 69] (Batson); People v. Wheeler
(1978) 22 Cal.3d 258 (Wheeler).
2 All further statutory references are to the Penal Code unless otherwise designated.

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With respect to count 1, it was alleged defendants used a deadly weapon (§ 12022,
subd. (b)(1)), personally used a firearm (§ 12022.53, subd. (b)), and personally inflicted
great bodily injury (§ 12022.7, subd. (a)), and that Stearman personally discharged a
firearm (§ 12022.53, subd. (c)) and personally discharged a firearm causing great bodily
injury (§ 12022.53, subd. (d)). As to count 2, it was alleged that the attempted murder
was willful, deliberate, and premeditated (§ 664, subd. (f)), that defendants personally
inflicted great bodily injury (§ 12022.7 subd. (a)), that Stearman personally used a
firearm (§ 12022.53, subd. (b)), personally discharged a firearm (§ 12022.53(c)), and
personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)), and
that Bristow used a deadly weapon (§ 12022, subd. (b)(1)). As to count 3, it was alleged
that Stearman personally used a firearm during the commission of a felony (§ 12022.5,
subd. (a)) and personally inflicted great bodily injury (§ 12022.7 subd. (a)). With respect
to count 5, it was alleged Bristow personally inflicted great bodily injury (§ 12022.7,
subd. (a)).
The Evidence
The evidence of guilt is extensive. Defendants do not claim the jury’s verdict
lacks substantial evidence to support it. We summarize the most cogent portions of the
record supporting the verdict as well as those portions relevant to the arguments raised on
appeal.
a. Motive. Family Matters: The Relationship Between Cullen and Defendants
The victim, Cullen, met Stearman’s niece, Deana Stearman, in 2006 or 2007.
Cullen and Deana began a relationship, and Deana moved in with Cullen and his son.
The couple married and at the wedding Cullen met Stearman. Cullen and Deana had two
children, a boy born in 2009, and a girl in 2011. Over the years, Cullen saw Stearman at
family functions on numerous occasions.
Theirs was not a happy marriage. In 2010 Deana was arrested for domestic
violence. Cullen was once arrested after slapping Deana and leaving a bruise on her

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temple. After Deana gave birth to their second child, she moved in with her parents,
Doyle and Madeline Stearman. Cullen lived a few houses away in a home rented from
Deana’s parents but eventually moved.
In April 2011 Cullen went to court over visitation. The court issued a temporary
order requiring the couple’s son to stay with Cullen and their daughter to stay with
Deana. The couple also exchanged custody for one hour every other day at a nearby gas
station. During these exchanges, Deana’s parents accompanied her.
The acrimony between the couple was fully exposed to the Stearman family. A
month or two before the attack, Deana and other Stearmans were in Bakersfield for her
grandfather’s funeral, on a weekend Cullen was scheduled to visit the children. When
Cullen called to speak with his children, Stearman got on the phone and said, “You don’t
want me to come down there.” Cullen felt Deana was not complying with the court order
over visitation. He took Stearman’s remark as a threat.
Deana’s father Doyle is Stearman’s brother. Doyle was aware of the ongoing
custody dispute between Stearman and Cullen. Deana lives with Doyle and has custody
of the children most of the time. When the family returned from Bakersfield, Cullen
arrived to pick up the children. Doyle told him to wait because he wanted the sheriff to
be present at the exchange. Because of the animosity between Cullen and the Stearman
family, Doyle wanted a neutral witness. On another occasion, the following week, Doyle
contacted the sheriff’s department complaining of Cullen’s violation of the custody
agreement.
Stearman treated Cullen as a threat to the family. He once stayed at Doyle’s home
when Doyle and his wife went out of town because Cullen had made threats and they did
not trust him. Doyle had a handgun for protection. Stearman gave Doyle a nine-
millimeter semiautomatic handgun in a holster. In the house when Doyle and his family
left town were a single action .22 caliber and the semiautomatic nine millimeter that
Doyle received after his father’s funeral in Bakersfield.

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The last time Cullen saw Stearman prior to the attack was the weekend before
when he went to pick up his children at Doyle’s house. Stearman was very hostile and
told Cullen he had better take care of what is “owed.”
b. The Attack
Around midnight on September 30, 2012, Cullen left to work his midnight to
8:15 a.m. shift. Although Cullen believed the tire pressure on his van was low, he was
late and drove on. As he drove, a white Toyota pickup passed him, a vehicle he had seen
near his house when he left for work. The pickup sped past him and then stopped.
Cullen stopped his van in the middle of the road. A person Cullen did not
recognize got out of the passenger side of the pickup and ran to Cullen’s van. The person
wielded a gun and yelled at Cullen to get out of the van, pounding the gun on the
passenger-side window.
Cullen got out of the van and tried to run. Stearman, the driver of the pickup, ran
to stop him. Stearman punched Cullen in the face and he fell to the ground. As Stearman
punched him, Cullen felt a gun at the back of his head and heard Stearman yelling, “shoot
him, shoot him.” The gun went off and Cullen collapsed.
Cullen saw two bright lights and heard voices asking if he was dead. Someone
said, “I will finish him off.” Cullen began struggling with Stearman. Stearman pointed a
gun at Cullen’s chest. They struggled and the gun went off, hitting Cullen in the left arm
and exiting through his chest. After the shooting, the slide of Stearman’s gun remained
“stuck in the open position” and Stearman began to curse.
Cullen felt fingers in his mouth, bit down, and felt a knife cutting his tongue.
Cullen’s tongue was lacerated and his neck was cut from his mouth to behind his right
ear. Stearman and the other attacker took Cullen’s van.
As Cullen got to his feet, he heard an engine revving. A car came toward Cullen,
striking him, and he slid onto the hood and onto the windshield. The driver got out,
pulled Cullen off the windshield and threw him to the ground. Cullen did not recognize

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his assailant. The person said, “Die, bitch.” There was red fluid on the hood and the
windshield.
Cullen’s cell phone rang. His coworker, Victor Bustamante Navarro, was calling
because Cullen had not shown up for work. Cullen told Bustamante he was dying and
told him where he was. Cullen then called 911.3 Although the wound to his tongue
made Cullen difficult to understand, he said he was dying and Danny had done it.
Bustamante and Miguel Ambriz found Cullen in the middle of the road, covered in
blood. Bustamante had not called 911 after speaking to Cullen because he did not know
the extent of Cullen’s injuries. Bustamante called 911 after reaching the scene.
An officer arrived and asked Cullen who had attacked him. Cullen said his ex-
wife’s father and attempted to say a last name. Bustamante could not understand what
Cullen was trying to say, but it started with an “S” and sounded like “Searman” or
“Silverman.” Cullen said something about his ex-wife and father. Cullen had previously
mentioned his divorce and subsequent custody issues to Bustamante.
c. The Law Enforcement and Medical Response
Sheriff’s deputies Nick Morford and Andrew Livermore arrived on the scene.
Cullen’s face and neck were covered in blood, and Morford saw deep cuts on his neck,
throat, hands, and wrists. Cullen told Morford he was dying and that he had been
carjacked and stabbed. Bustamante told Morford that Cullen said his ex-wife and uncle,
or ex-wife and father, were involved in the attack. Morford asked Cullen if his ex-wife
was involved and Cullen replied, “Danny Steelman.” When Morford repeated the name,
Cullen confirmed it was Danny Steelman.
3 The 911 call was played for the jury.

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Officers located Cullen’s van and found blood on the front bumper, hood, and
cracked windshield. The driver’s window was open, the keys were in the ignition, and
the rear passenger tire was flat.
A DNA swab taken from the van’s headlight switch was a mixture of two
contributors: Cullen, the major contributor to the DNA profile, and Stearman, the minor
contributor.
Cullen suffered a six-inch cut to the right side of his neck, a slash wound to his
chest, and massive blood loss. He also suffered a bullet wound to his neck. The bullet
entered Cullen’s mouth, went through his tongue and out the back of his neck, or went
through his neck through his tongue and out of his mouth. Cullen also had bullet
fragments in his neck. Cullen’s wound was consistent with a .22-caliber round. Such a
weapon was found in Cullen’s van.
While in the intensive care unit, Cullen tried to tell officers what happened, but his
injuries prevented communication. Eventually, Cullen was able to communicate with
Detective Jennifer Davis by blinking in response to questions. He also communicated via
a notepad and identified Stearman as one of his attackers but could not identify his
second assailant.
d. Stearman’s Arrest
Officers arrested Stearman on October 9, 2012, and codefendant Bristow on
June 12, 2013. Stearman had a cell phone and an envelope with $2,000 in $100 bills.
Stearman’s wallet contained approximately $200.
Detective Dean Nyland interviewed Stearman.4 Nyland, trained in cell phone
technology, was designated as an expert on cell phones, tracking of cell phones, and
general cell phone technology. Nyland obtained Stearman’s contact information for his
4 A recording of the interview was played for the jury.

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cell phone and home phone. Nyland found a third number, which Stearman identified as
belonging to Jimmy Kellet or his daughter Angela Stearman. Nyland asked if Stearman
used any other phones in October 2012. Stearman said he purchased a phone at Rite Aid
but lost it the same day.
e. Cell Phone Linkages
Cell phone calls linked Stearman and Bristow on the day and evening in question.
A search of Stearman’s cell phone records on September 30 and October 1 revealed calls
to codefendant Bristow. A search of Doyle’s and Bristow’s cell phone records revealed a
telephone number common to both phones. The number belonged to a TracFone cell
phone model purchased from a Rite Aid store. A tracking device on the phone was
activated at about the same time Stearman stated he purchased the phone from Rite Aid.
Bristow called the TracFone in the early morning of September 30, 2012. There were
multiple calls the same day. There were calls between the TracFone and Doyle and
Angela’s phones. Bristow’s phone records revealed early that morning his phone was
being used in Yuba City. A short time later, the phone was used in the Meridian area,
between Williams and Yuba City.
f. Admissions
1. John Winterset’s Testimony
John Winterset, Jr., has known Stearman for approximately 40 years and is also
familiar with Doyle, Madeline, and Deana Stearman. In 2010, while at Doyle’s house
with Stearman, there was a discussion about the issues between Stearman and Cullen.
Winterset knew Bristow because Bristow was in business with Stearman.
Winterset was present at the funeral of Stearman’s father. Doyle was on the phone
with Cullen, who was being unreasonable. Stearman told Cullen to leave them alone and
let them get through the funeral. Winterset thought Stearman commented that Cullen did
not want Stearman to visit him. Around the time of the funeral, Winterset saw Stearman

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give a holster and what appeared to be a pistol to Doyle. Doyle said he wanted it for
protection.
Stearman told Winterset that he and Cullen had a confrontation at Doyle’s house.
Stearman was there to babysit his niece and nephew and take care of Deana while Doyle
and Madeline Stearman were out of town. During a custody exchange, Stearman and
Cullen got into an argument.
Stearman gave Winterset his credit card before he and Bristow went to Northern
California. Stearman said he needed an alibi. Although Stearman did not tell Winterset
to use the credit card, Winterset did so. Stearman took Winterset’s Toyota Camry, which
Winterset loaned him in July 2012. The day Stearman left, Winterset used the credit card
to buy cigarettes and gas.
When Stearman returned he was somber and told Winterset he paid Bristow
$5,000 to go with him. Winterset knew in his heart what the money was for. Stearman
told him he had traveled north and knocked on Cullen’s door, and they began to fight.
Based on his knowledge of Stearman, Winterset believed he would never do anything
more than fight. Stearman’s knuckles were injured.
Stearman also told Winterset that after he attacked Cullen he threw a gun in the
river. Stearman said they had acted like monsters when they attacked Cullen. Although
he heard only bits and pieces about the incident, Winterset became concerned about what
had happened.
After Stearman’s arrest, Winterset spoke with Bristow. Bristow told him they had
flattened Cullen’s tire and ran him off the road. Bristow said Stearman was driving.
Bristow said “I can’t believe it. I stuck him deep.” He also told Winterset that Stearman
would not get out of the way. Winterset never told detectives about Bristow’s comments
because he thought Bristow had made a deal with the police.

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Bristow later came to Winterset’s home and asked for $2,000 so he could finish
the job. Bristow made the request after he learned Cullen was still alive.5
Although Winterset read about the attack on Cullen and about Stearman’s arrest
after Bristow’s statements, he did not tell authorities. After he received a subpoena to
testify before a grand jury, Winterset decided to tell the truth. He told the grand jury that
Bristow said a gun was involved and that he had shot Cullen, but in an inefficient way.
According to Winterset, this meant that as Stearman and Cullen were fighting, Bristow
could not get a clear shot at Cullen.
Winterset was later threatened by acquaintances of Bristow, including a person
who grabbed him by the throat and threatened to cut his head off.
2. Paula Davis’s Testimony
Paula Davis is Bristow’s cousin and also knows Stearman. In 2012 Bristow told
her someone associated with Stearman had been attacked. Bristow told her he had gotten
into a confrontation with someone and had stabbed him. He said the man had been
molesting Stearman’s grandchildren. The man had been shot, but Bristow did not say
who shot him. The man did not die. Before the grand jury, Paula testified that Bristow
was paid to do it and was supposed to be paid $5,000 but only received $3,000.
g. Bristow and Stearman’s Movements
Bristow’s son David, as well as his ex-wife Theda Kuney, recalled that Stearman
accompanied Bristow when Bristow moved David from Bakersfield to his mother’s
apartment in Yuba City in September or October 2012. Bristow drove a pickup truck and
Stearman drove separately in a Toyota.
5 Winterset’s son Jason testified that after Stearman’s arrest, Bristow made a comment
about needing money. Bristow asked Winterset for $2,000 to go up north.

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DEFENSE CASE
Stearman’s Testimony
Stearman testified in his own behalf. At the time of trial, Stearman, aged 65, had
no prior arrests. He served six years in the military, had two businesses of his own for a
time, and worked for a sign business until his retirement in 2002. Stearman was not a
violent person and had never threatened anyone with a knife or gun. Stearman met
Cullen prior to Cullen’s marriage to Deana and saw him at family functions. In the past,
Stearman used illegal drugs, including methamphetamine, but stopped in 1998. He began
using again after his wife passed away. He and Cullen used methamphetamine together.
Occasionally, when Cullen lost his “connections,” Stearman supplied him with
methamphetamine. Stearman believed Cullen and Deana used amphetamine after their
marriage.
Stearman was aware of conflict between Deana and Cullen over child custody,
conflicts in which he also became involved. He recalled a tense telephone conversation
with Cullen that took place following a succession of family deaths and funerals. Cullen
demanded to talk with his children who were out of town with their mother at a family
funeral. The conversation caused Deana’s mother, Madeline, to cry. Stearman took the
phone and told Cullen he could talk to his children but should not harass the family. He
added, “Don’t make me come down there,” but it was only a family saying, “not a big
deal.”
Stearman traced the events on the evening and early morning of September 30 and
October 1 to another angry encounter between the two after Cullen had turned Deana in
for allegedly disobeying the custody order. When Cullen dropped off the children,
Stearman told him he was upset about Cullen’s actions because Cullen had done the same
thing by leaving the children with his brother when he went to work. Cullen became
angry and Stearman told Cullen if he tried to hit him, he would “whip his ass.”

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Cullen and Stearman later ran into each other at an intersection. They got out of
their cars and Cullen was friendly and asked if Stearman was still angry. Stearman said
he was and Cullen assured him he would make things right with the district attorney.
Cullen also asked if Stearman could get him some methamphetamine. Stearman agreed,
reasoning that he could get back at Cullen if Cullen was caught with drugs. Stearman
told Cullen his friend, codefendant Bristow, was moving his son to the area that weekend.
Stearman agreed to make sure Bristow brought drugs. Cullen said he would meet
Bristow on his way to work after midnight.
Stearman bought a TracFone for his grandson at a drugstore in Shafter. He
activated the phone before he returned to Yuba City to help Bristow move his son. The
phone was stolen after Stearman returned from the move. Before he left for Yuba City,
Stearman gave John Winterset the credit card to put gas in Stearman’s truck, which
Winterset had borrowed. However, Stearman never told him to use the credit card to
create an alibi. Stearman knew Winterset for about 40 years and the duo had used
methamphetamine together.
Stearman helped Bristow move his son and drove a Toyota Camry he borrowed
from Winterset. He took a separate car because he had errands to run after the move.
After moving Bristow’s son, Stearman and Bristow went to a hotel. They left to meet
Cullen and saw his vehicle moving slowly because of a flat tire. Stearman drove around
Cullen, pulled up next to him, and Cullen pulled over. Bristow got out and Stearman
pulled over around the corner. Stearman did not force Cullen off the road.
Bristow got out and Stearman pulled forward because he saw headlights coming.
As he waited for Bristow to meet with Cullen, Stearman saw a flash and heard a sound
like a firecracker. Stearman saw Bristow and Cullen fighting in the street. Stearman got
out and went to Cullen’s van. Stearman had not brought a gun and did not know whether
Bristow had.

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Bristow told Stearman to get the drugs out of the van. Stearman got into Cullen’s
van looking for the drugs and heard gunshots. Cullen was shooting in Stearman’s
direction and Stearman put the van in reverse, then pulled forward. After he stopped the
van, he found the drugs on the floor. Stearman drove the van forward as Cullen jumped
on the hood. Stearman stopped and Cullen pointed the gun at him.
Stearman realized Cullen was hurt when Cullen jumped on the van and he saw
blood. Stearman had not fought with Cullen; any fighting was between Cullen and
Bristow. After his arrest, Stearman did not tell Detective Nyland about the drug deal
because he did not want to connect it to Bristow.
Bristow later told Stearman that when he got in the van, Cullen pulled out a gun
and told him to get out. Bristow grabbed the gun and it went off. Bristow and Cullen
struggled over the gun, which went off and shot out a window. Bristow was frightened
on the drive back to the hotel. They did not stay at the hotel because Stearman wanted to
go home.
Stearman did not like the way Cullen treated his family. However, they bonded
over drugs. Stearman did not want to kill Cullen. Following the incident, Stearman
bought a Corvette for $6,000 in cash. The money left over from the purchase was in the
envelope found when he was arrested.
Detective Young’s Testimony
Detective Brian Young interviewed Cullen in February 2013. Cullen told him
about an incident in which two people forced him off the road, seven or eight months
before the attack. He was driving to work around midnight when a vehicle forced him
off the road. The truck, an older Toyota, pulled up alongside him and a passenger
wearing a stocking over his head waved a gun at him. Stearman got out of the driver’s
side of the truck, and he recognized the man with the stocking as John Huston. Stearman
and Huston threatened him and told him to back off the custody issues. If he did not,
they would come back and finish the job. They warned Cullen not to notify police

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because no one would believe him. Cullen did not report the incident because he did not
have any proof.
Cullen told Young that for many years he had been subjected to random drug
testing, and he was still being tested at his current job. The testing averaged about two
times a year since 1998.
Young searched Stearman’s home on October 9, 2012. He seized some handguns,
including a .22 caliber. Young found two .22-caliber revolvers, one .357-caliber
revolver, and three semiautomatic nine-millimeter handguns. He also discovered what he
suspected was methamphetamine and a glass smoking pipe.
Abimael Ramirez’s Testimony
Abimael Ramirez worked with Cullen. He knew about the attack on Cullen, who
was hospitalized in October 2012 and was off work. Prior to the attack, Cullen never told
him about the prior incident.
Detective Davis’s Testimony
Detective Davis spoke with Cullen at the hospital following the incident.
Although Cullen could not speak, he could shake his head indicating yes or no and move
his hands to mean he was not sure. A few days after the incident, during an interview,
Cullen shook his head no, indicating Stearman did not shoot him. However, in previous
interviews Cullen affirmed Stearman and another individual were involved. Cullen
indicated Stearman had shot him and was armed with a knife. The first time Davis asked
Cullen if he knew he was shot, he shook his head yes and indicated he had been hit by a
car.
Davis asked Cullen if Stearman had a gun, and he shook his head yes. Later,
Davis asked if Stearman shot him and Cullen indicated he did not know. When Davis
asked if the other person shot him, Cullen indicated yes. Cullen indicated he knew who
had cut him, but also indicated he did not know if Stearman had cut him. He did indicate
the other person had cut him.

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During the October 3, 2012, interview, Cullen described Stearman’s clothing.
When Davis asked if Stearman had a gun, Cullen indicated yes. When she asked if
anyone else had a gun, he shook his head no.
An October 9, 2012, interview was recorded, with Cullen able to speak. Cullen
said Stearman drove the car and there was a passenger. The passenger approached
Cullen’s van with a gun. When Stearman got out of the car, he punched Cullen several
times while holding a gun. Cullen and Stearman began to wrestle and the gun went off.
Cullen did not believe he had been shot. Cullen thought the gun was a semiautomatic but
did not know if there was more than one gun. He did not know what vehicle hit him or
who was driving. Cullen was not sure if the vehicle hit him.
On October 15, 2012, Cullen called Davis. He said he did not want to falsely
accuse anyone but thought the second person might have been John Huston. However,
Cullen never mentioned the earlier incident involving Stearman and Huston.
Davis reviewed Cullen’s journal. Cullen recorded the incident at the funeral, but
there was no mention of the earlier incident of Stearman and Huston forcing him off the
road.
A recording of an interview was played for the jury. Cullen remembered, for the
first time, being shot in the neck. He said Stearman stood over him, checking if he was
alive. A gun went off while he was struggling with Stearman and then another gun went
off. He also believed he was hit by his van.
In the first October 2, 2012, interview, Cullen took a piece of paper, and when
Davis asked who hurt him he wrote down Stearman although he misspelled his name. In
the numerous interviews Cullen changed things considerably.
John Huston’s Testimony
Huston is Stearman’s sister-in-law’s brother. Cullen was married to his niece
Deana. Huston denied forcing Cullen off the road. Huston testified about an incident
when his sister and brother-in-law were out of town and did not trust Cullen around

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Deana. Huston went to their home and found Stearman. Cullen carried one child to the
car and Stearman carried the other. Suddenly Cullen lunged at Stearman, and Huston put
his hand on him and told him it was time to go. Huston did not know what caused the
altercation.
Huston told Cullen it was inappropriate to call so many times during the funeral.
He also told Cullen he needed to pay for the car that Huston’s sister-in-law had given
him.
Health Worker’s Testimony
Carman Arvizu works at the medical center where Stearman is a patient. He
signed in on October 1, 2012, for an appointment. During the exam, Arvizu did not
notice any scrapes, bruises, cuts, or other injuries to Stearman’s body.
VERDICT AND SENTENCING
Stearman and Bristow were tried together but had separate juries.
Stearman
The jury convicted Stearman on all four counts and found the following
enhancements true: count 1, Stearman used a deadly weapon pursuant to section 12022,
subdivision (b)(1) and personally inflicted great bodily injury pursuant to section
12022.7, subdivision (a); count 2, an enhancement for willful, deliberate, and
premeditated murder pursuant to section 664, subdivision (f), and Stearman personally
inflicted great bodily injury; and count 3, personally inflicted great bodily injury.
The court sentenced Stearman on count 1 to 25 years to life plus an additional year
for the use of a deadly weapon pursuant to section 12022, subdivision (b)(1), and an
additional three years for infliction of great bodily injury pursuant to section 12022.7; on
count 2 to seven years to life plus an additional three years for infliction of great bodily
injury, both stayed under section 654; on count 3, the upper term of four years plus an
additional three years for infliction of great bodily injury, both stayed under section 654;
and on count 4 to the upper term of four years, stayed under section 654. Stearman’s

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total sentence is four years plus 25 years to life in state prison. Stearman filed a timely
notice of appeal.
Bristow
The jury convicted Bristow on all counts and found the following enhancements
true: count 1, Bristow personally used a firearm pursuant to section 12022.53,
subdivision (b), used a deadly weapon pursuant to section 12022, subdivision (b)(1), and
personally inflicted great bodily injury pursuant to section 12022.7, subdivision (a);
count 2, an enhancement for willful, deliberate, and premeditated murder pursuant to
section 664, subdivision (f), personally inflicted great bodily injury, and personally used
a deadly weapon; and count 5, personally inflicted great bodily injury.
The court sentenced Bristow on count 1 to 25 years to life plus an additional
10 years because he personally used a firearm, plus an additional year for use of a deadly
weapon, stayed pursuant to section 654, plus an additional three years for infliction of
great bodily injury; on count 2 to seven years to life, plus an additional three years for
personal infliction of great bodily injury, stayed under section 654; on count 3 to the
upper term of four years, stayed under section 654; and on count 5 to the upper term of
four years plus an additional three years for infliction of great bodily injury, stayed under
section 654. The court also sentenced Bristow to one year for each prior prison term
enhancement, for a total sentence of 15 years plus 25 years to life in state prison. Bristow
filed a timely notice of appeal.
DISCUSSION
STEARMAN’S APPEAL
Doyle Stearman’s Testimony
Stearman argues the trial court erred in allowing his brother to testify that a lawyer
told him if Cullen died Deana would gain full custody of the couple’s children.

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Background
During trial, the prosecutor asked Doyle if, during the custody dispute, he had met
with lawyers. Doyle replied that they had and the prosecutor asked, “did the lawyer
during the divorce proceeding ever tell you what would happen if one of the parents of
your grandchildren were to pass?” The trial court overruled defense counsel’s objection.
Doyle responded: “If one were to pass away, then the children would go to the other,”
and continued, “I don’t think it stipulated to that, but I would assume that’s common
sense.”
The prosecution continued: “So if your daughter were to pass, Mark Cullen would
have sole custody of your grandchildren; correct?” Doyle: “It would be his right,
correct.” Prosecution: “That would be upsetting to you, wouldn’t it?” Doyle:
“Naturally, yeah.” Prosecution: “And if Mark Cullen were to pass, your daughter would
have full custody of the grandchildren; correct?” Doyle: “Correct.” Prosecution: “And
that particular scenario wouldn’t be as upsetting to you as the first scenario I gave, would
it?” Doyle: “I wouldn’t think so.”
Discussion
Stearman contends this testimony should not have been admitted as its only
relevance was to prove motive. Doyle’s motive was not at issue and there was no
evidence that Doyle ever communicated this advice to appellant.
Relevant evidence is evidence having any tendency to prove or disprove any
disputed fact that is of consequence in determining the action. Courts interpret relevance
broadly. (Evid. Code, § 210; People v. Scheid (1997) 16 Cal.4th 1, 13.) The court may
exclude relevant evidence if the probative value is substantially outweighed by the
probability that its admission will create substantial danger of undue prejudice. (Evid.
Code, § 352.) We review the court’s determination of admissibility for an abuse of
discretion. (People v Alvarez (1996) 14 Cal.4th 155, 201.)

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The Attorney General insists that the prosecution presented ample evidence of the
acrimonious custody dispute between Cullen and his ex-wife Deana, Stearman’s niece.
The evidence also revealed that Doyle and other family members were involved in the
divorced couple’s contentious relationship. The custody agreement provided the basis for
much of the acrimony. In light of this evidence, the Attorney General argues it is
reasonable to suppose that Doyle communicated the lawyer’s advice to Stearman, thus
supplying a motive for Stearman’s alleged actions.
Whether the fact that the Stearman family often discussed Deana’s custody
problems permits an inference that Stearman was told about the lawyer’s advice to Doyle
is questionable. Clearly, however, any error in admitting evidence of the advice is
harmless. The lawyer’s advice was unremarkable; what other outcome would a laypeson
suppose would ensue when a parent dies, leaving another as the sole surviving parent? It
is fanciful to believe, in the face of the overwhelming evidence of guilt introduced at
trial, that evidence of the lawyer’s advice had any effect on the jury’s consideration of
this case.
Cullen’s Alleged Drug Use
Stearman contends the court erred in restricting testimony regarding Cullen’s drug
use prior to 1998. This limitation, Stearman argues, denied him his right to confrontation
and to present a complete defense.
Background
The argument stems from defense counsel’s cross-examination of Cullen
regarding his drug use and about his representation that he has long been subject to
random drug testing. Defense counsel asked specifically about the drug testing policies
at his place of employment, and he responded that he was tested when first hired in 2009
but had only been tested once since then. When asked about a statement he purportedly
gave to Detective Young that he had been random drug testing two to three times a year
since 1998, Cullen responded that he had been drug tested randomly “a number of times”

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from 1998 to 2006 when he worked for Central Valley Building Supplies and he had had
numerous jobs and had been drug tested “a bunch of times.” He acknowledged that he
had not been drug tested on a random basis at his current employment since he started in
2009.
Following cross-examination of Cullen, defense counsel indicated he had
witnesses prepared to testify that Cullen used drugs “up to 1998” and argued Cullen’s
drug use was relevant. Reacting, the court declared: “I think it is unlikely that drug use
20 years, or even 15 years before these events, would be admissible. I would find that the
relevance of that evidence, if there is any, is so minimal that it doesn’t warrant admission.
Evidence of more recent drug usage may be admissible, it just depends on what that
evidence is. So I will reserve ruling on that issue until and unless this issue is actually
presented by the use of admissible evidence from one of the defendants.”
Discussion
Stearman argues the trial court abused its discretion in preventing defense counsel
from questioning Cullen regarding his previous drug use and in refusing defense
counsel’s request to present witnesses to testify concerning Cullen’s prior use of illegal
drugs. According to Stearman, “[t]he proffered testimony to establish that Cullen was a
user of illegal drugs would have corroborated appellant’s testimony that the violent
incident arose out of a drug deal requested by Cullen.”
A defendant must be provided a reasonable opportunity to cross-examine
witnesses. However, the court possesses wide latitude to impose reasonable limits on
cross-examination. The court considers, among other things, harassment, prejudice,
confusion of the issues, witness safety, or questioning that is repetitive or only marginally
relevant. (People v. Ducu (1991) 226 Cal.App.3d 1412, 1414-1415.) We review the
court’s imposition of restrictions on cross-examination for an abuse of discretion.
(People v. Farnam (2002) 28 Cal.4th 107, 187.)

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Defense counsel cross-examined Cullen about inconsistencies in the frequency of
drug testing at his jobs. Counsel also asked Cullen if he was using methamphetamine “on
or about” the day of the attack. Cullen denied using methamphetamine. The focus of
Stearman’s defense was that the incident was a drug deal, initiated by Cullen, gone bad.
The court allowed extensive questioning about Cullen’s drug use; it only limited the time
frame of Cullen’s alleged drug use. How or why Cullen’s drug use well over a decade
before the events of this case would support Stearman’s defense is difficult to fathom.
The court’s limitation did not amount to an abuse of discretion.
In a similar vein, the trial court did not abuse its discretion in refusing to allow
defense counsel to present witnesses to testify as to Cullen’s drug use 14 years ago. As
the trial court pointed out, such long-ago drug use was of minimal relevance. We find no
error.
BRISTOW’S APPEAL
Batson/Wheeler Motion
Bristow argues the trial court erred in denying his Batson/Wheeler motion.
According to Bristow, the prosecutor’s use of peremptory challenges on three prospective
Hispanic jurors was improper.
Background
Voir Dire
At the beginning of voir dire, the court stated it would permit each side 30 minutes
to question the first 20 jurors. Defense counsel asked that voir dire not be limited, but the
court disagreed. The court proceeded to question prospective jurors as to whether any
knew of the parties or witnesses or the basic facts of the case. Bristow focuses on the
questioning of three jurors with Hispanic surnames: E.S., R.G., and N.C.
The court questioned prospective juror E.S. E.S. served on a jury in a criminal
case two years previously. The court asked: “Do you remember what the charge was?”
E.S.: “Somebody got beat up. I don’t recall.” The court: “Did the jury come to a

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decision in that case?’ E.S.: “I believe so.” The court: “Were you involved in the
deliberation process?” E.S.: “Yes.”
The court also elicited biographical information from the prospective jurors. R.G.
served as a senior administrative analyst with the Department of Employment and Social
Services. E.S. worked for a distribution center. N.C. served as director for the Head
Start Program, and her spouse worked for a rental agency.
After defense counsel questioned the panel, the prosecution questioned the panel,
noting the time constraints. The prosecution told the panel: “If I don’t ask you an
individual question, it is not because I mean to slight you, it is just that I’m trying to
speed this along as much as I can.” The prosecutor proceeded to question several
potential jurors.
The prosecution used a peremptory challenge to excuse E.S. and two other jurors.
Defense counsel later excused two jurors. Subsequently, both the prosecutor and the
defense counsel each excused two jurors.
After the court added more potential jurors, it noted, “I’m giving the attorneys less
time to ask questions. They took so little time the first time around, they have some time
left.” The court, the prosecutor, and defense counsel questioned the new jurors
individually. The prosecutor and defense counsel each excused a juror. In the next round
defense counsel excused a juror and the prosecutor excused N.C. In the following round,
defense counsel and the prosecutor each excused a juror. Defense counsel then excused a
juror and the prosecutor excused R.G. Defense counsel informed the court, “I have a
Batson Wheeler.”
The Hearing
At the hearing, defense counsel alleged the prosecutor used peremptory challenges
on three prospective jurors. The court asked the prosecutor to explain why the three
jurors were excused.

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The prosecution stated N.C. was excused mainly because none of her answers
“gave us any kind of reading about how she would vote one way or another.” The
prosecutor noted N.C. worked for Head Start and her husband worked for a rental
agency. However, with the limited amount of time for questioning, nothing N.C. “told us
in the Court’s questioning gave us rise one way or another to what type of juror she
would be. [¶] A lot of times . . . when we’ve been sitting here through selection, even
when we don’t specifically question a juror, the answers they’ve given the Court have
been enough for us to determine. [N.C.’s] answers were so benign that we chose to
exercise a peremptory challenge based upon the lack of information she provided and not
wishing to waste any additional of our finite amount of time in trying to hash out one way
or another. So that’s why [N.C.] was excused.”
The prosecution stated it excused R.G. for several reasons: “One . . . her facial
expression brought to me that she was completely confused almost to the point of
disoriented about what was going on. . . . So first off, she appeared to be confused
throughout the entire time I could observe her in the jury box. Second, she works for the
Department of Employment and Social Services. I know from my experience as a deputy
district attorney going on over 16 years that the relationship between DESS and the DA’s
office is often one of acrimony. I know from experience there have been times where
DESS has actually complained that badge-carrying, gun-carrying district attorney
investigators are assigned to that office, and those investigators work for my office.”
In addition, the prosecution noted R.G. described her position as a senior analyst
with the DESS: “In my experience as a prosecutor, those people involved as senior
analysts tend to be too fact wanting or too detail specific and are not good as jurors in
cases where some of the evidence produced is going to be circumstantial evidence. For
example . . . there is a significant gap in time in the cell phone records that apply to
[Bristow]. We are going to ask the jury to follow circumstantial evidence to conclude
what [Bristow] did during the time that we do not have cell phone records for him. And

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in my experience, economist analysts are not good for that task. And we’re going to be
asking them to do a task like that? [¶] I would also note that by my count, of course, the
jurors have all left. We have four Hispanic jurors seated in the group of 12 that still
remain, and those are four Hispanic surnames. . . . [¶] So I would submit that even if
[defense counsel] has raised a prima facie case to warrant a Batson Wheeler inquiry, our
explanation for those jurors being dismissed certainly shows beyond a doubt that our
reasons for kicking them are for facts related to the case and have absolutely nothing to
do with their race.”
The trial court considered the challenge to E.S. and determined there was a
legitimate reason to excuse the juror. Defense counsel stated that the fact that there were
four Hispanics remaining on the jury was “legally irrelevant.” The court responded:
“Well, I certainly agree with you, but it is not immaterial. It is simply not conclusive.”
Although the court said it was not necessary, the prosecutor provided an
explanation for the challenge to E.S.: “Just for purposes of the record and for any
purpose of appeal, [E.S.] was asked about prior jury experience. [E.S.] said he had prior
jury experience two years ago and recalled nothing of that prior jury service. That to me
is problematic because we are looking for a group of 12 people plus alternates who are
going to be paying attention and be engaged. I have no idea what kind of case that was,
but with only one prior event of jury service, I would expect something to stick out in his
mind if he was the type of juror we were looking for in this case, which is one to engage
and follow along in a trail of facts both involving direct and circumstantial evidence.”
The court noted there were four individuals with Hispanic surnames among the
11 potential jurors remaining. The court concluded: “The importance of counting the
number of people with Hispanic surnames is simply to underline the fact that in this jury
pool, we have a very substantial number of Hispanics, which is not unusual for Yolo
County. Based on the information provided, I would find, first, that the reason [E.S.] was
excused clearly has nothing to do with race. The reason why [R.G.] was excused

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certainly makes sense based on what [the prosecution] said. And the reason [N.C.] was
excused, while it nonplusses me a bit, has nothing to do with race. I don’t find that
explanation offered by [the prosecutor] is simply an attempt to mask the fact that the real
reason was that she was Hispanic. So I would deny the Batson Wheeler objection based
on everything in the record.”
Discussion
Bristow contends the prosecutor’s “inconsistent, implausible, and unsupported
reasons for exercising three of its first nine challenges against Hispanic jurors did not
offer substantial evidence to support the trial court’s finding of nondiscrimination.” We
disagree.
A prosecutor’s use of peremptory challenges to remove jurors solely on the basis
of presumed group bias based on membership in a racial group violates both the federal
and state Constitutions. (People v. Taylor (2009) 47 Cal.4th 850, 885.) Batson/Wheeler
imposes a three-step inquiry into a prosecutor’s use of peremptory challenges allegedly
based on race. First, the court determines whether the defendant has made a prima facie
showing that the prosecutor exercised a peremptory challenge based on race. Second, if
such a showing is made, the burden shifts to the prosecution to demonstrate the
challenges were exercised for a race-neutral reason. Third, the court determines whether
the defendant has shown purposeful discrimination. (Rice v. Collins (2006) 546 U.S.
333, 338 [163 L.Ed.2d 824].)
We review a trial court’s ruling on whether or not a prima facie case has been
established for an abuse of discretion. When a court finds the moving party fails to
establish a prima facie case of bias, we uphold the ruling if supported by substantial
evidence. (People v. Johnson (1989) 47 Cal.3d 1194, 1221; People v. Jones (1998)
17 Cal.4th 279, 293.)
As the parties acknowledge, it is somewhat unclear whether the trial court
determined Bristow made a prima facie showing. The trial court did not make a specific

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finding that Bristow made such a showing but did ask the prosecutor to explain his
reasons for excusing the jurors in question.
In Hernandez v. New York (1991) 500 U.S. 352 [114 L.Ed.2d 395], after the
defendant raised a Batson/Wheeler objection, the prosecutor did not wait for a ruling on
whether the defendant had established a prima facie case of racial discrimination. The
prosecutor instead volunteered his reasons for striking the jurors in question. The
Supreme Court observed: “[T]he trial court had no occasion to rule that petitioner had or
had not made a prima facie showing of intentional discrimination. . . . Once a prosecutor
has offered a race neutral explanation for the peremptory challenges and the trial court
has ruled on the ultimate question of intentional discrimination, the preliminary issue of
whether the defendant made a prima facie showing becomes moot.” (Id. at p. 359;
People v. Scott (2015) 61 Cal.4th 363, 393.) Accordingly, we consider the prosecution’s
response to the court’s request.
The court invited the prosecution to explain why N.C. had been excused. After
the prosecutor responded, the trial court observed: “Since you mentioned [R.G.], I invite
you to explain why [R.G.] was excused.” As for E.S., the court stated, based on the
potential juror’s answers, the prosecution had a legitimate reason to excuse E.S.
N.C.
Bristow argues the prosecutor did not pose a single question to prospective jurors
R.G., E.S., or N.C. before challenging them. As for N.C., Bristow contends the
prosecutor offered no reason whatsoever for challenging the juror; “The prosecutor
simply claimed her answers were ‘so benign’ he could not say whether she would be a
good or bad juror for the prosecution.” Bristow oversimplifies the record.
N.C. was the prosecutor’s seventh peremptory challenge and the prosecutor
explained that he was exercising the challenge because N.C.’s responses, in the limited
time permitted, provided no indication of how she would respond to the evidence. The
prosecutor did not want to waste any additional of “our finite amount of time in trying to

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hash out one way or another.” The trial court considered the explanation and found the
reason N.C. was excused, “while it nonplusses me a bit, has nothing to do with race. I
don’t find the explanation offered . . . is simply an attempt to mask the fact that the real
reason was that she was Hispanic.”
It is axiomatic that the trial court is in the best position to ascertain the validity of
the prosecution’s reasons for excusing a potential juror: “[T]rial judges know the local
prosecutors assigned to their courts and are in a better position than appellate courts to
evaluate the credibility and the genuineness of reasons given for peremptory challenges.”
(People v. Johnson (1989) 47 Cal.3d 1194, 1219, fn. 6.) We give great deference to the
trial court’s ability to distinguish bona fide reasons from sham excuses. (People v. Lenix
(2008) 44 Cal.4th 602, 613-614.) The trial court’s determination is a factual one, and if
the court makes a sincere and reasonable effort to ascertain whether the proffered reasons
are nondiscriminatory and the determination is supported by substantial evidence, we will
not disturb it on appeal. (People v. Thomas (2011) 51 Cal.4th 449, 474.)
Here, the trial court observed voir dire, listened to the prosecution’s explanation,
and determined it was not based on the fact the potential juror was Hispanic. Bristow
challenges the trial court’s decision, arguing several other non-Hispanic jurors also
provided limited information but were not excused. According to Bristow, “A
comparative analysis shows the prosecutor did not strike non-Hispanic jurors who also
provided spare biographical information.”
A comparative analysis argument cannot be raised for the first time on appeal.
(People v. Jackson (1996) 13 Cal.4th 1164, 1197.) Moreover, the jurors in question were
asked additional questions by defense counsel. One juror indicated she had previously
served on a grand jury and that her former spouse’s drug use would not impact her
impartiality. Another juror discussed her work responsibilities, and the third also
clarified her work position and stated that although she had visited prisons, she could be
fair in the present case. A final juror stated her occupation, place of residence, and the

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occupation of her spouse. Given the deference we show to the trial court and
acknowledging the trial court’s superior ability to observe and evaluate the potential
jurors’ demeanors, we find no merit in Bristow’s contention.
E.S.
The trial court did not request an explanation for the peremptory challenge against
E.S. but accepted the prosecutor’s proffered explanation. The prosecutor stated E.S.
recalled nothing of his prior jury service, which the prosecutor found problematic.
Bristow contends the record does not support the prosecutor’s given reason. We
disagree.
E.S. stated he had recently served on a jury in a criminal case. Upon further
inquiry regarding the charges, E.S. responded, “Somebody got beat up. I don’t recall.”
When asked if the jury reached a verdict, E.S. stated, “I believe so.” E.S.’s vague
responses concerning his jury service support the trial court’s finding of a lack of
discriminatory intent in his dismissal.
R.G.
The prosecutor excused R.G. in part because her facial expressions gave the
impression she was “completely confused almost to the point of [being] disoriented about
what was going on.” In addition, the prosecutor noted that R.G. worked for an agency
that had an often acrimonious relationship with his office. Bristow argues the reasons
given “do not withstand scrutiny.”
However, both of the reasons given, the juror’s demeanor and her adverse
relationship with the district attorney’s office, support the trial court’s finding of a
nondiscriminatory reason for R.G.’s dismissal. The demeanor of a juror may be a valid
basis for a challenge, provided the demeanor-based reason is not pretextural. (People v.
Jones (2011) 51 Cal.4th 346, 363-364) Excusing a juror based on the juror’s professional
background may be a valid reason for exclusion. (People v. Granillo (1987)

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197 Cal.App.3d 110, 120, fn. 2.) We find sufficient evidence supporting the trial court’s
conclusion that the prosecutor’s reasons for excluding R.G. were neutral and valid.
DISPOSITION
The judgments are affirmed.
RAYE , P. J.
We concur:
BLEASE , J.
DUARTE , J.

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