Tully

An amended information charged defendant Richard Christopher Tully with the 1986 murder of Shirley Olsson (Pen. Code, § 187) and assault with intent to commit rape (id., § 1203.065, subd. (b)). 1 The information also alleged a special circumstance that the murder was committed in the commission of a burglary and, as to both counts, that defendant used a dangerous and deadly weapon, to wit; a knife. (§§ 190.2, former subd. (a)(17)(vii), 12022, subd. (b).)

Shirley Olsson, a 59-year-old nurse at the Livermore Veterans Administration medical center, was brutally murdered sometime in the night or early morning hours of July 24 to 25, 1986. A coworker went to her residence and discovered Olsson’s nude body in her bed; she had been stabbed 23 times. A bloody knife and Olsson’s purse were found on the golf course that abutted her house. The screen to her bathroom window was found in a neighbor’s backyard. The blood on the knife was the victim’s. Several months later, a fingerprint and palm print on the knife were matched to defendant. Defendant, who had lived two houses down from Olsson’s residence, admitted to police he had been at the victim’s house the night she was…

—I join the majority in affirming the judgment of death. I write separately, however, to address the merits of defendant’s claim that the prosecutor committed misconduct at the penalty phase by using biblical quotations in his closing statement to the jury, a subject the majority does not address because it concludes that defendant forfeited the claim by failing to object.

I

During closing argument at the penalty phase of defendant’s capital trial, the prosecutor showed the jury a large chart entitled “The Bible Sanctions Capital Punishment.” The chart contained these four quotations from the Bible: (1) “Who sheds the blood of man by man shall his blood be shed, for in his image did God make man”; (2) “He that smiteth a man so that he die, shall be surely put to death”; (3) “And if he strike him w[ith] an instrument of iron so that he die, he is a murderer: The murderer shall surely be put to death”; and (4) “And you shall not take reparations for the soul of a murderer who deserves to die but he shall be put to death.”

In his initial argument to the jury, 1 the prosecutor said: “[W]hen we talk about religion, it is not something that is to be used in aggravation at all, what…

I join the opinion of the court and also agree with Justice Kennard, for the reasons persuasively stated in parts I and II of her concurring opinion (cone. opn. of Kennard, J., ante, at pp. 1076-1079), that the prosecutor’s use of religious authority was improper in this case.

Appellant’s petition for a rehearing was denied September 19, 2012.

I. FACTS

A. Guilt Phase

1. Prosecution evidence

a. Shirley (Sandy) Olsson’s murder and the ensuing investigation3 In July 1986, Sandy Olsson worked as a registered nurse at the Veterans Administration medical center in Livermore. Her specialty was ostomony — caring for people who had colostomies — and she also worked as a charge or supervising nurse. Typically, she worked Monday through Friday, arriving sometime between 7:00 and 7:30 a.m. and leaving at 4:00 p.m. Olsson was 59 years old and divorced with two adult children, a daughter, Sandra Walters, and a son, Elbert “Tripp” Walters III. For much of the year she lived alone at 1556 Hollyhock Street, except from October through March when her father, Clifford Sandberg, came from Kansas and stayed with her. Olsson‟s residence backed up against the Springtown Golf Course.

Ms. Olsson‟s given name was Shirley but she was called Sandy by everyone but her father. 2 The portrait of Olsson that emerged from the testimony of various witnesses was of a person of fairly set habits. When she arrived home from work, she locked the front door with a chain lock. After changing her top, she poured herself a glass of Coca-Cola and added…