PEOPLE v. WILLIAMS (GEORGE BRETT)

Respondent's Brief

Cal.July 27, 2005

SUPREME COURT COPY IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, CAPITAL CASE Plaintiff and Respondent, S030553 Vv. GEORGE BRETT WILLIAMS, Defendant and Appellant. Los Angeles County Superior Court No. TA006961 The Honorable Madge Watai, Judge SUPREME G@URT RESPONDENT’S BRIEF FILED JUL 2 7 2005 Frederick K. Ohrich Clerk Deputy BILL LOCKYER Attorney General of the State of California ROBERT R. ANDERSON Chief Assistant Attorney General PAMELA C. HAMANAKA Senior Assistant Attorney General _ JOHNR.GOREY i Deputy Attorney General he ne STEPHANIE A. MIYOSHI Deputy Attorney General State Bar No. 190394 300 South Spring Street Los Angeles, CA 90013 Telephone: (213) 897-8784 Fax: (213) 897-6496 Email: Stephanie.Miyoshi@doj.ca.gov Attorneys for Plaintiff and Respondent TABLE OF CONTENTS Page STATEMENT OF THE CASE 1 STATEMENT OF FACTS 2 A. Guilt Phase Evidence 2 1. Prosecution’s Evidence 2 2. Defense Evidence 13 B. Penalty Phase Evidence 15 1. Prosecution Evidence 15 a. The Assault On Kenneth Moore 15 b. The Shooting At Officer Sims 16 c. The Robbery And Assault Of Mona Thomas And Her Father 17 d. Appellant’s Possession OfA Revolver 18 2. Defense Evidence 18 3. Prosecution Rebuttal Evidence 20 APPELLANT’S CONTENTIONS 20 RESPONDENT’S ARGUMENT 22 TABLE OF CONTENTS(continued) Page ARGUMENT 23 I APPELLANT’S CONSTITUTIONAL RIGHTS WERE NOT VIOLATED BY THE PROSECUTOR’S USE OF PEREMPTORY CHALLENGES BECAUSE THE RECORD CONTAINS SUBSTANTIAL EVIDENCE SUPPORTING THE TRIAL COURT’S RULING THAT THE PROSECUTOR HAD RACE-NEUTRAL REASONS’ FOR EXCLUDING THE POTENTIAL JURORS AT ISSUE 23 A. Relevant Facts And Proceedings 23 1. The Jurors At Issue 23 a. Theresa Cooksie 23 b. Paula Cooper-Lewis 24 c. Ruth Jordan 25 d. Retha Payton 25 e. Harriet Reed 26 2. The Wheeler Motion 27 B. The Trial Court Did Not Err In Denying Appellant’s Wheeler Motions 33 Il. THE TRIAL COURT PROPERLY EXCUSED PROSPECTIVE JUROR GREG REHEIS FOR CAUSE IN LIGHT OF HIS VIEWS REGARDING THE DEATH PENALTY 38 A. Relevant Facts And Proceedings 39 ll TABLE OF CONTENTS(continued) Page B. The Excusal Of Reheis Was Proper 43 IY. THE TRIAL COURT PROPERLY EXCUSED PROSPECTIVE JUROR ELIZABETH CHAMPLIN FOR CAUSEIN LIGHT OF HER VIEWS ON THE DEATH PENALTY 47 A. Relevant Facts And Proceedings 47 B. The Trial Court Properly Excused Champlin For Cause 49 IV. APPELLANT FAILED TO PRESERVE THE ISSUE REGARDING THE TRIAL COURT’S DENIAL OF HIS CHALLENGE FOR CAUSE AGAINST PROSPECTIVE JUROR RICHARD COON; MOREOVER, THE TRIAL COURT PROPERLY DENIED THE DEFENSE CHALLENGE FOR CAUSE AGAINST COON 52 A. Relevant Facts And Proceedings 52 B. Appellant Failed To Properly Preserve His Claim Regarding His Challenge To Coon; Moreover, The Trial Court Properly Denied Appellant’s Motion 54 Vv. THE TRIAL COURT HAD NO DUTY TO GIVE A LIMITING INSTRUCTION AT THE GUILT PHASE REGARDING THE GUILTY PLEAS OF APPELLANT’S ACCOMPLICES, LINTON, CYPRIAN, AND LEE; MOREOVER, THE INSTRUCTIONS GIVEN WERE ADEQUATE 57 A. Relevant Facts And Proceedings 57 ii VIL. VUL TABLE OF CONTENTS(continued) B. The Trial Court Had No Duty To Give A Limiting Instruction And The Instructions Given Were Adequate THE TRIAL COURT PROPERLY LIMITED DEFENSE COUNSEL’S CROSS- EXAMINATION OF LINTON A. Relevant Facts And Proceedings B. The Trial Court Properly Limited The Examination Of Linton APPELLANT DID NOT PRESERVE HIS CLAIM REGARDING THE ALLEGED PROSECUTORIAL MISCONDUCTIN GUILT PHASE CLOSING AND REBUTTAL ARGUMENTS; IN ADDITION, THE PROSECUTOR’S CLOSING AND REBUTTAL ARGUMENTS WERE PROPER A. Relevant Facts And Proceedings B. Appellant’s Claim Must Be Rejected APPELLANT WAIVED HIS CLAIM REGARDING THE PROSECUTOR’S ALLEGED MISCONDUCTIN QUESTIONING WITNESSES DURING THE GUILT PHASE; MOREOVER, THE PROSECUTOR ACTED PROPERLYIN QUESTIONING WITNESSES REGARDING APPELLANT’S TRIP TO NEW YORK A. Relevant Facts And Proceedings Page Cross- B. Appellant Has Waived His Claim; Moreover, The Prosecutor Did Not Engage In Any Misconduct hi 59 63 63 65 68 68 70 74 74 TABLE OF CONTENTS (continued) THE TRIAL COURT PROPERLY INSTRUCTED THE JURY THAT EVIDENCE OF FLIGHT AND EFFORTS TO SUPPRESS OR FABRICATE EVIDENCE COULD BE CONSIDERED AS EVIDENCE OF GUILT THE ROBBERY CONVICTIONS AND TRUE FINDINGS ON THE SPECIAL- CIRCUMSTANCE ALLEGATIONS MUSTBE UPHELD A. Relevant Facts And Circumstances Page 85 86 86 B. The Trial Court Properly Instructed The Jury On The Level Of Corroboration Needed To Obtain A Conviction Based On Accomplice Testimony And There Was Adequate Corroborating Evidence To Support The Jury’s Findings 1. The Instructions On Corroboration Were Adequate 2. There Was Sufficient Evidence To Corroborate The Accomplice’s Testimony As To The Robberies Appellant Has Waived His Claim Regarding Whether He Received Adequate Notice That The Special- Circumstance Allegations Could Be Based On Attempted Robbery; Moreover, Appellant Had Sufficient Notice 1. The Amended Information Adequately Alleged The Attempted Robbery 2. Appellant’s Right To The Assistance Of Counsel Was NotViolated 90 90 91 94 94 96 XI. D. TABLE OF CONTENTS(continued) Page 3. Appellant Waived His Eighth AmendmentClaim; Moreover, His Right To A Reliable Determination Was NotViolated 98 A Unanimity Instruction Was Not Required 98 THE TRIAL COURT PROPERLY ADMITTED EVIDENCE OF PRIOR CRIMINAL ACTIVITY DURING THE PENALTY PHASE AND PROPERLY INSTRUCTED THE JURY 102 A. Appellant Has Waived His Claim Regarding The Staleness Of The Prior Criminal Acts; Moreover, The Evidence Was Properly Admitted 102 Appellant Has Waived His Double Jeopardy Argument; Moreover, The Admission OfThe Evidence Related To His Prior Conviction Did Not Violate Double Jeopardy Principles 103 Appellant Waived His Claim Regarding The Admission Of Evidence Of Violent Acts Committed By Co- perpetrators; In Addition, The Admission Of Such Evidence Was Proper 104 The Jury Was Properly Instructed On The Aggravating Circumstances 105 1. Instructions On Aiding And Abetting Were Not Required 105 2. CALJIC No. 8.87, As Read By The Court, Was Proper 106 Appellant Has Waived His Contention That He Received Insufficient Notice Related To The Incident Involving Moore; Moreover, The Record Shows That The Defense Did Receive Adequate Notice 109 v1 XI. XII. XIV. XV. TABLE OF CONTENTS(continued) Page CALJIC NO.8.87, AS READ BY THE TRIAL COURT, WAS PROPER 111 A. B. The Instruction Was Not Unconstitutionally Vague 111 The Instruction Was Not Erroneous And Did Not Violate Any State-Created Liberty Interest 115 Appellant Has Waived His Contention That He Did Not Receive Proper Notice Of The Court’s Alteration Of CALJIC No.8.87; Moreover, There Was No Indication That Appellant Had Not Received The Proper Notice 117 The Resulting Death Sentence Did Not Violate The Eighth Amendment 118 THE INSTRUCTIONS ON THE AGGRAVATING FACTORS WERE PROPER 119 THE INSTRUCTIONS PROPERLY GUIDED THE JURY’S DISCRETION 120 TRIAL COUNSEL WASNOT INEFFECTIVE 120 A. Trial Counsel Was Qualified To Represent Appellant 121 1. Counsel Had The Necessary Skills, Knowledge, And Resources To Handle A Capital Case And There Is Nothing In The Record To Indicate That He Sought Inadequate Compensation 121 a. Relevant Facts And Proceedings 121 b. Trial Counsel Was NotIneffective 123 vil TABLE OF CONTENTS (continued) Page 2. Trial Counsel Did Not Render Ineffective Assistance When He Misstated His Experience In Capital Cases 126 a. Relevant Facts And Proceedings 126 b. Counsel Was NotIneffective 127 3. Trial Counsel Hired A Qualified Attorney To Conduct Jury Selection 128 Counsel Was Physically And Mentally Able To Represent Appellant 131 1. Relevant Facts And Proceedings 131 2. LeMieux’s Physical And Mental State Did Not Render Him Unable To Represent Appellant 134 Trial Counsel Adequately Prepared For Trial 137 1. Counsel Adequately Reviewed Documentary Evidence 137 a. Relevant Facts And Proceedings 138 b. Counsel Was NotIneffective 140 2.. Counsel Adequately Investigated The Physical Evidence 142 a. Relevant Facts And Proceedings 142 b. Counsel Was Not Ineffective 143 3. Counsel Was Not Ineffective For Failing To Formally Interview Appellant’s Prior Defense Team — «(146 Vill TABLE OF CONTENTS (continued) 7. Page a. Relevant Facts And Proceedings 146 b. Counsel Was NotIneffective 147 Failing To Seek A Court-Appointed Investigator 148 a. Relevant Facts And Proceedings 148 b. Counsel Was NotIneffective 149 Failing To Interview Eyewitnesses 150 a. Relevant Facts And Proceedings 150 b. Counsel Was NotIneffective 151 Failing To Interview Or Subpoena Certain Witnesses a. Relevant Facts And Proceedings (1) Proceedings During Trial (2) LeMieux’s Declaration And Testimony During The Motion For New Trial (3) Appellant’s Declaration And Testimony During The Motion For New Trial (4) Anthony Moreno’s Testimony (5) Douglas McCann’s Declaration And Testimony b. Counsel Was NotIneffective Failing To File Futile Or Irrelevant Motions 1X 154 154 154 157 160 163 165 166 169 TABLE OF CONTENTS(continued) Page a. Relevant Facts And Proceedings 169 b. Counsel Was NotIneffective 170 Trial Counsel Was Not Ineffective In Regards To His Absence During Jury Selection 174 Trial Counsel Acted Competently During Trial 175 1. Counsel’s Opening Statement Did Not Demonstrate Ineffectiveness 175 a. Relevant Facts And Proceedings 175 2. Counsel Was NotIneffective 178 3. Counsel Adequately Prepared And Gave A Closing Argument 181 Counsel Performed Competently At The Penalty Phase 183 1. Counsel Adequately Appreciated The Constitutional Significance Of The Penalty Phase Of The Trial And Was Familiar With How To Try A Penalty Phase Proceeding 184 2. Counsel Acted Competently In Not Requesting A Continuance Prior To The Penalty Phase 185 a. Relevant Facts And Proceedings 185 b. Counsel Was NotIneffective 186 TABLE OF CONTENTS(continued) Page 3. This Court Should Reject Appellant’s Claim That Counsel WasIneffective In Regards To His Failure To Hire An Investigator, A Mitigation Specialist, Law Enforcement Expert, And A Mental Health Expert, And Failed To Request Funds To Assist Him In Preparing For The Penalty Phase Of The Trial 188 4. Appellant Has Not Established That His Attorney Was Ineffective For The Manner In Which He Handled The Aggravating Evidence 189 a. Relevant Facts And Proceedings 189 b. The Record Fails To Establish That Counsel WasIneffective 190 5. Counsel Competently Failed To Make Futile Motions Regarding The Admissible Aggravating Evidence 191 6. Counsel Adequately Investigated And Presented Mitigating Evidence 192 a. Relevant Facts And Proceedings 192 b. Counsel Was Not Ineffective 194 7. Counsel’s Delivered His Closing Argument In A Competent Manner 197 G. Appellant Must Demonstrate That He Was Prejudiced By His Attorney’s Alleged Acts Of Incompetence In Order To Prevail On His Claims That His Attorneys Were Ineffective 198 XVI. APPELLANT VALIDLY WAIVED HIS RIGHT TO REPRESENT HIMSELF 201 x1 TABLE OF CONTENTS(continued) Page A. Relevant Facts AndProceedings 201 B. The Record Does Not Show That Appellant Waived The Right To Represent Himself Based On The Court Giving Him Inaccurate Information 203 XVII. THIS COURT HAS REPEATEDLY HELD THAT THE CALIFORNIA DEATH PENALTY SCHEME PROVIDES A MEANINGFUL WAY TO DISTINGUISH THE FEW WHO ARE SELECTED FORDEATH FROM THE MANY WHO ARE NOT 204 XVII. THE CONSTITUTION DOES NOT REQUIRE THAT THE JURY FIND BEYOND A REASONABLE DOUBT THAT THE AGGRAVATING FACTORS OUTWEIGH THE MITIGATING FACTORS 205 XIX. PENAL CODE SECTION 190.3, SUBDIVISION (A), IS NOT BEING APPLIED IN AN ARBITRARY OR CAPRICIOUS MANNER 205 XX. INTERCASE PROPORTIONALITY REVIEW IS NOT CONSTITUTIONALLY REQUIRED 206 XXI. CALIFORNIA’S DEATH PENALTY PROCEDURE DOES NOT VIOLATE INTERNATIONAL LAW 207 CONCLUSION 208 Xil TABLE OF AUTHORITIES Cases Adams yv. Texas (1980) 448 U.S. 38, 100 S. Ct. 2521, 65 L. Ed. 2d 581 Anderson v. Butler (1st Cir. 1988) 858 F.2d 16 Arnold y. State (Ga. 1976) 224 S.E.2d 386 Bell v. Cone (2002) 535 U.S. 685, 122 S.Ct. 1843, 152 L.Ed.2d 914 Blakely v. Washington (2004) US._, 124 S.Ct. 2531, 159 L.Ed.2d 403 Brimmer vy, Tennessee (Tenn. Crim. App. 1998) 29 S.W.3d 497 Bullington v. Missouri (1981) 451 USS. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 Commonwealth v. Carney (Mass. App. Ct. 1993) 610 N.E.2d 975 Commonwealth v. Johnson (Pa. 2002) 815 A.2d 563 xi Page ~ 50, 51 181 114 198, 199 119, 205 134 103 181 114 TABLE OF AUTHORITIES (continued) Page © Commonwealth v. McMahon (Mass. 2005) 822 N.E.2d 699 180 Davis v. Alaska (1974) 415 U.S.308, 94 S.Ct. 1105, 39 L.Ed.2d 347 65 Delaware v. Van Arsdall (1986) 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 65, 67 Douglas v. Alabama (1965) 380 U.S. 415, 85 S.Ct. 1074, 13 L Ed.2d 934 60 Edwards v. United States (D.C. 2001) 767 A.2d 241 180 Espinoza v. Florida (1992) 505 U.S. 1079, 112 S. Ct. 2926, 120 L. Ed. 2d 854 113 Geders v. United States, 425 USS. 80, 96S. Ct. 1330, 47 L. Ed. 2d 592 (1976) . 96 Godfrey v. Georgia (1980) 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 112 Xi1V TABLE OF AUTHORITIES(continued) Gray v. Mississippi (1987) 481 U.S. 648, 107 S. Ct. 2045, 95 L. Ed. 2d 622 Herring v. New York, 422 US.853, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975) Hudson v. North Carolina (1960) 363 U.S. 697, 80 S.Ct. 1314, 4 L.Ed.2d 934 In re Andrews (2002) 28 Cal.4th 1234 In re Avena (1996) 12 Cal.4th 694 In re Carpenter (1995) 9 Cal.4th 634 In re Cudjo (1999) 20 Cal.4th 673 In re Johnson (1992) 1 Cal.4th 689 In re Jones (1996) 13 Cal.4th 552 In re Lucas (2004) 33 Cal.4th 682 In re Marquez (1992) 1 Cal.4th 584 XV Page ~ 50, 51 96 60 172, 179, 180, 186, 195-197 198, 199 200 144, 150 129 144 140, 144, 172, 186 145 TABLE OF AUTHORITIES(continued) In re Roberts (2003) 29 Cal.4th 726 In re Scott (2003) 29 Cal.4th 783 In re Visciotti (1996) 14 Cal.4th 325 Jurek v. Texas (1976) 428 US. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 Leev. Illinois (1986) 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 Maynard v. Cartwright (1988) 486 US. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988) People v. Alvarez (1996) 4 Cal.4th 155 People v. Anderson (1990) 52 Cal.3d 453 People v. Anderson (2001) 25 Cal.4th 543 People v. Andrews (1989) 49 Cal.3d 200 People y. Arias (1996) 13 Cal.4th 92 xvi Page © 168 195 198, 199 113 60 112 34 102 102, 103, 105, 106, 173, 206 91 37, 204 TABLE OF AUTHORITIES(continued) Page ~ People v. Avena (1996) 13 Cal.4th 394 106 People v. Bacigalupo (1991) 1 Cal.4th 103° 85, 104, 115 People v. Bacigalupo (1993) 6 Cal.4th 457 111-113 People v. Barnett (1998) 17 Cal.4th 1044 181, 182 People v. Beasley (2003) 105 Cal.App.4th 1078 154 People v. Bell (1989) 49 Cal.3d 502 80, 83 People v. Bemore (2000) 22 Cal.4th 809 71, 72, 129, 130 People v. Benavides (2005) 35 Cal.4th 69 99, 100, 119, 123 People v. Bishop (1996) 44 Cal.App.4th 220 96, 97, 117, 118 People v. Bolden (2002) 29 Cal.4th 515 80 People v. Box (2000) 23 Cal.4th 1153 107, 116-118, 120 People v. Boyce (1980) 110 Cal.App.3d 726 90 People v. Boyette (2002) 29 Cal.4th 381 37 Xvi TABLE OF AUTHORITIES(continued) People v. Bradford (1997) 15 Cal.4th 1229 People v. Breaux (1991) 1 Cal.4th 281 People v. Brown (2003) 31 Cal.4th 518 People v. Brown (2004) 33 Cal.4th 382 People v. Bunyard (1988) 45 Cal.3d 1189 People v. Burgener (2003) 29 Cal.4th 833 People v. Burnett (2003) 110 Cal.App.4th 868 People v. Cain (1995) 10 Cal.4th 1 People v. Carpenter (1997) 15 Cal.4th 312 People v. Carpenter (1999) 21 Cal.4th 1016 People v. Carter (2003) 30 Cal.4th 1166 People v. Cash (2002) 28 Cal.4th 703 People v. Catlin (2001) 26 Cal.4th 81 XVili Page © 110 71 65-67 119, 206, 207 90 33, 102, 200, 206 180 95, 106 109, 169, 181 66, 67 107, 116, 188, 192, 200 33, 34, 130 125 TABLE OF AUTHORITIES(continued) Page © People v. Champion (1995) 9 Cal.4th 979 99, 100 People v. Clark (1992) 3 Cal.4th 1 60 People v. Cleveland (2004) 32 Cal.4th 704 33 People v. Coffman (2004) 34 Cal.4th 1 80, 109, 144 People v. Cole (2004) 33 Cal.4th 1158 62, 67, 70, 94, 97, 98, 119 People v. Cooper (1991) 53 Cal.3d 771 66 People v. Cox (2003) 30 Cal.4th 916 119 People v. Crittenden (1994) 9 Cal4th 83 107 People v. Cudjo (1993) 6 Cal.4th 585 98, 196 People v. Cummings (1993) 4 Cal.4th 1233 35, 71 People v. Cunningham (2001) 25 Cal.4th 926 56, 109, 110, 184, 200 People v. Daniel (1983) 145 Cal.App.3d 168 118 People v. Danks (2004) 32 Cal.4th 269 203 XIX TABLE OF AUTHORITIES (continued) People v. Davis (1995) 10 Cal.4th 463 People v. Dyer (1988) 45 Cal.3d 26 People v. Earp (1999) 20 Cal.4th 826 People v. Evans (1953) 39 Cal.2d 242 People v. Fairbank (1997) 16 Cal.4th 1223 People v. Farnam (2002) 28 Cal.4th 107 People v. Felton (2004) 122 Cal.App.4th 260 People v. Fierro (1991) 1 Cal.4th 173 People v. Freeman (1994) 8 Cal.4th 450 People v. Frye (1998) 18 Cal.4th 894 People v. Garrison (1989) 47 Cal.3d 746 People v. Gray (1998) 66 Cal.App.4th 973 People v. Griffin (2004) 33 Cal.4th 536 Page — 102, 104, 106 168 112 83, 84 197 109, 110 93 115 129, 131 65, 71, 72, 116, 129, 137, 179, 180 93, 134 127 50, 51, 119, 204 XX TABLE OF AUTHORITIES (continued) People v. Griggs (2003) 110 Cal.App.4th 1137 People v. Gurule (2002) 28 Cal.4th 557 People v. Haley (2004) 34 Cal.4th 283 People v. Hardy (1992) 2 Cal.4th 86 People v. Harris (1986) 175 Cal.App.3d 944 People v. Harris (1989) 47 Cal.3d 1047 People v. Harrison (2005) 35 Cal.4th 208 People v. Hart (1999) 20 Cal.4th 546 People v. Hayes (1990) 52 Cal.3d 577 People v. Haynes (1998) 61 Cal.App.4th 1282 People v. Heard (2003) 31 Cal.4th 946 People v. Heishman (1988) 45 Cal.3d 147 People v. Hernandez (2004) 33 Cal.4th 1040 XXi Page © 60 80 43, 44, 50 116 171 67 43, 44, 50 102, 105 104, 115 100 43, 46 108 60 TABLE OF AUTHORITIES(continued) Page © People v. Hillhouse (2002) 27 Cal.4th 469 65, 66, 70, 71 People v. Holt (1997) 15 Cal.4th 619 141, 145, 152, 171, 188 People v. Horning (2004) 34 Cal.4th 871 54, 55, 60, 119 People v. Hughes (2002) 27 Cal.4th 287 120 People v. Jackson (1980) 28 Cal.3d 264 171, 173 People v. Jackson (1996) 13 Cal.4th 1164 34, 37, 85, 98, 119 People v. Jenkins (1973) 34 Cal.App.3d 893 90 People v. Jenkins (2000) 22 Cal.4th 900 98, 110, 119, 203, 204, 206 People v. Johnson (1994) 6 Cal.4th 1 172, 186 People v. Johnson (2003) 30 Cal.4th 1302 33, 37 People v. Jones (1998) 17 Cal.4th 279 103, 109 People v. Jones (2003) 29 Cal4th 1229 44,45, 49 People v. Kipp (2001) 26 Cal.4th 1100 73, 116-118 XXil TABLE OF AUTHORITIES (continued) People v. Koontz (2003) 27 Cal.4th 1041 People v. Kronmeyer (1987) 189 Cal.App.3d 314 People v. Lewis (2004) 120 Cal.App.4th 837 People v. Lohbauer (1981) 29 Cal.3d 364 People v. Lucas (1997) 55 Cal.App.4th 721 People v. Lucero (2000) 23 Cal.4th 692 People v. Majors (1998) 18 Cal.4th 385 People v. Martinez (1982) 132 Cal.App.3d 119 People v. Maury Page ~ 98 117 90 95 117, 118 107 123, 142, 148, 183, 185, 189, 199 90 (2003) 30 Cal.4th 342 54-55, 125, 141-142, 145, 148, 152, 171, 188, 192 People v. Mayfield (1997) 14 Cal.4th 668 People v. McDermott (2002) 28 Cal.4th 946 People v. McPeters (1992) 2 Cal.4th 1148 People v. Medina (1974) 41 Cal.App.3d 438 33, 37, 81-83, 109, 110 33, 90, 91, 153, 195, 198, 199 103, 104 92, 102, 110, 196, 197 TABLE OF AUTHORITIES (continued) People v. Medina (1995) 11 Cal.4th 694 People v. Memro (1995) 11 Cal.4th 786 People v. Mendoza (2000) 24 Cal.4th 130 People v. Mickey (1991) 54 Cal.3d 612 People v. Mincey (1992) 2 Cal.4th 408 People v. Monterroso (2004) 34 Cal.4th 743 People v. Montiel (1993) 5 Cal.4th 877 People v. Morrison (2004) 34 Cal.4th 698 People v. Murillo (1996) 47 Cal.App.4th 1104 People v. Musselwhite (1998) 17 Cal.4th 1216 People v. Napoles (2002) 104 Cal.App.4th 108 People v. Navarette (2003) 30 Cal.4th 458 People v. Panah (2005) 35 Cal.4th 395 XX1V Page © 70, 71 67 131, 175, 179-181 83 45 70, 120 128 33, 119, 205 107 112, 144, 172, 186 99 45 119, 120, 205, 206 TABLE OF AUTHORITIES (continued) Page People v. Parks (2004) 118 Cal.App.4th 1 95 People v. Percele (2005) 126 Cal.App.4th 164 99, 100 People vy. Pinholster (1992) 1 Cal.4th 865 116 People v. Price (1992) 1 Cal.4th 324 172, 192 People v. Pride (1992) 3 Cal.4th 195 100 People v. Prieto (2003) 30 Cal.4th 226 107, 116 People v. Raley (1992) 2 Cal.4th 870 114, 115, 119 People v. Ramos (2004) 34 Cal.4th 494 113, 204, 207 People v. Ray (1996) 33 Cal.4th 313 104, 115 People v. Rodrigues (1994) 8 Cal.4th 1060 90, 91 People v. Roldan (2005) 35 Cal.4th 646 207 People v. Rowland (1992) 4 Cal.4th 238 114 People v. Russo (2004) 25 Cal.4th 1124 99 XXV TABLE OF AUTHORITIES (continued) People v. Samayoa (1997) 15 Cal.4th 795 People v. Sanchez (1995) 12 Cal.4th 1 People v. Sanders (1995) 11 Cal.4th 475 People v. Sapp (2004) 31 Cal.4th 240 People v. Seaton (2001)26 Cal.4th 598 People v. Silva (2001) 25 Cal.4th 345 People v. Smith (2005) 35 Cal.4th 334 People vy. Smithey (1999) 20 Cal.4th 936 People v. Snow (2003) 30 Cal.4th 43 People v. Stanley (1995) 10 Cal.4th 764 People v. Stewart (2004) 33 Cal.4th 425 Peoplev. Stitely (2005) 26 Cal.4th 3d 1 People v. Stitely (2005) 35 Cal.4th 514 XXvi Page - 204 129, 137, 205 90, 91 100, 204 61, 94, 97, 173, 187 80, 82 206 172, 173, 186, 187, 200 204 103 43-46, 49, 200 109 119, 120, 205 TABLE OF AUTHORITIES (continued) Page People v. Taylor (1990) 52 Cal.3d 719 110, 169, 181 People v. Thomas (1987) 43 Cal.3d 818 96 People v. Turner . (2004) 34 Cal.4th 406 101, 206 People v. Valdez (2004) 32 Cal.4th 73 73, 83, 85 People v. Venegas (1994) 25 Cal.App.4th 1731 167 People v. Vieira (2005) 35 Cal.4th 264 205 People v. Wagner (1975) 13 Cal.3d 612 83 People v. Walsh (1993) 6 Cal.4th 215 73 People v. Wash (1993) 6 Cal.4th 215 80, 83 People v. Weaver (2001) 26 Cal.4th 876 56, 67, 173 People v. Webster (1991) 54 Cal.3d 411 173 People v. Welch (1999) 20 Cal.4th 701 45, 50, 71, 73, 85 People v. West (1970) 3 Cal.3d 595 95 XXVil TABLE OF AUTHORITIES (continued) People v. Wharton (1991) 53 Cal.3d 522 People v. Wheeler (1978) 22 Cal.3d 258 People v. Williams (1997) 16 Cal.4th 635 People v. Williams (1997) 16 Cal.4th 153 People v. Wolfe (2003) 114 Cal.App.4th 177 People v. Wooten (1996) 44 Cal.App.4th 1834 People v. Wrest (1992) 3 Cal.4th 1088 People v. Wright (1990)52 Cal.3d 367 People v. Yeoman (2003) 31 Cal.4th 93 People v. Young (1978) 85 Cal.App.3d 594 People v. Young (2005) 24 Cal.Rptr.3d 112 People v. Zapien (1993) 4 Cal.4th 929 XXVill Page © 45,73 27 33, 65, 91, 92 65, 81, 97, 110, 113, 181, 191 101 60 197 123, 128 37, 120 60, 62 81, 85 92, 93 TABLE OF AUTHORITIES (continued) Perry v. Leeke (1989) 488 U.S. 272, 104 S. Ct. 2052, 80 L. Ed. 2d 674 Phoenix v. Matesanz (1st Cir. 2000) 233 F.3d 77 Ring v. Arizona (2002) 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 Sheppard v. Rees (9th Cir. 1989) 909 F.2d 1234 State v. David (La. 1985) 468 So.2d 1126 Strickland v. Washington (1984) 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 Tuilaepa v. California (1994) 512 U.S. 967, 114 S.Ct. 2630, 129 L.Ed.2d 750 United States v. Cronic (1984) 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 United States v. Halbert (9th Cir. 1981) 640 F.2d 1000 XXIX Page © 97 179, 181 119 97, 118 114 123, 154, 172, 186, 195, 196 112-114, 204 198 61 TABLE OF AUTHORITIES(continued) Page © United States v. McGill (1st Cir. 1993) 11 F.3d 223 , 179 Veal v. State (Ga. Ct. App. 2000) 531 S.E.2d 422 134 Wainwright v. Witt (1985) 469 USS. 412, 105 S. Ct. 844, 83 L. Ed. 2d 841 43 Walton v. Arizona (1990) 497 USS. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 114 Wiggins v. Smith (2003) 539 US. 510, 123 S. Ct. 2527, 156 L. Ed. 2d 471 195 Constitutional Provisions U.S. Const., 6th Amend. 65, 66, 203 U.S. Const., 8th Amend. 62, 67, 98, 111, 112, 118, 119, 204-206 U.S. Const., 14th Amend. 206 XXX TABLE OF AUTHORITIES (continued) Statutes Evid. Code, § 402 Pen. Code, § 187 Pen. Code, § 190.2 Pen. Code, § 190.3 Pen. Code, § 190.4 Pen. Code, § 211 Pen. Code, § 1111 Pen. Code, § 1159 Pen. Code, § 1203.06 Pen. Code, § 1239 Pen. Code, § 12022.5 Other Authorities CALJIC No. 2.23 CALJIC No.3.10 CALJIC No. 3.11 CALJIC No. 3.12 CALJIC No.3.13 Page © 156 1 1, 86, 95 104, 105, 109, 111, 115, 205 2 1 90, 116, 204 95 1 58 59 59, 88 59, 88 59 XXX1 TABLE OF AUTHORITIES (continued) Page © CALJIC No.3.18 59 CALJIC No.6.00 88 CALJIC No.8.10 87 CALIIC No.8.21 87, 88 CALJIC No.8.26 87 CALJIC No. 8.27 87 CALJIC No. 8.80 87, 88 CALJIC No.8.81.17 87, 88 CALJIC No.8.83.3 88 CALJIC No.8.87 106, 107, 111, 115-118 Merriam Webster’s 10th New Collegiate Dict. (1997) 115 XXX1i IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, 5030553 v. GEORGE BRETT WILLIAMS, Defendant and Appellant. STATEMENT OF THE CASE The Los Angeles County District Attorney’s Office charged appellant with two counts of special-circumstance murder (Pen. Code, § 187, subd.(a)) and two counts of second-degree robbery (Pen. Code, § 211). The alleged special circumstances were multiple murder (Pen. Code, § 190.2, subd. (a)(3)) and murder while appellant was engagedin, or was an accomplicein, a robbery (Pen. Code, § 190.2, subd. (a)(17)). It was further alleged as to all counts that appellant personally used a firearm within the meaning ofPenal Codesections 1203.06, subdivision (a)(1), and 12022.5. (CT 139-141.) Appellant pled not guilty and denied the special-circumstance and weapon-useallegations.” (CT 146.) A jury found appellant guilty as charged and also found the murders to be in the first degree. The jury also found true the special-circumstance and weapon-useallegations. (CT 381-385, 390-391.) In the penalty phase of the trial, the jury determined that appellant should be sentenced to death. (CT 410- 411.) 1. Patrick Linton, Dauras Cyprian, and Dino Lee werealso charged separately with the crimes committed in this case. The three men eventually entered guilty pleas. (RT 1541-1542, 1706, 1711, 1779, 2869, 2871.) 1 The trial court appointed another attorney to assist appellant’s trial. attorney in preparing a motion for newtrial. The newly-appointed attorney was . assigned to investigate whether trial counsel had been ineffective in representing appellant. (RT 3529-3550.) The trial court denied appellant’s motion for new trial and automatic motion for modification or reduction ofthe death sentence (Pen. Code, § 190.4, subd. (e)). The court sentenced appellant to death for the murders and stayed imposition of sentence for the robberies and weapon-use enhancements. (CT 713-727, 731-735.) Appellant was awarded no days of custody credit. (CT 727.) This appeal is automatic (Pen. Code, § 1239, subd. (b)). STATEMENT OF FACTS A. Guilt Phase Evidence 1. Prosecution’s Evidence Appellant, Dauras Cyprian, Patrick Linton, and Dino Lee were friends. (RT 1333-1335, 1651, 1665, 1755-1757, 1760-1761.) They would sometimes socialize near the house of Cyprian’s half-brother, Ernie Pierre, who lived across the street from Cyprian and his mother. (RT 1333, 1335-1337, 1339, 1514-1515, 1882, 2142-2145, 2163, 2176.) There was a vacant upstairs bachelor apartment behind Pierre’s residence. (RT 1770.) Appellant had a pager and a cellular telephone.” (RT 1355-1356, 1411- 1413, 1506, 1512, 1532-1533, 1546-1547, 1600-1601, 2200-2201.) Cyprian 2. Monique Williams, appellant’s wife, testified that appellant did not have a cellular telephone. Although appellant did have a telephone in his BMW,the phone did not work. (RT 1965, 1968, 2024-2025, 2064.) Appellant sold the BMWshortly before Christmas 1989 and then began driving a dark Mercedes Benz. (RT 1502, 1510-1511, 1555, 1652-1658, 1761-1762, 2006, 2049-2050, 2062, 2163.) was with appellant when he purchased the cellular telephone for $700, and. Linton was with appellant when he bought the pager from Delcomber | Communications’ (RT , 1649, 1651, 1759-1760.) In late December 1989, appellant told Linton he was going to “jack someone” for money. (RT 1559-1560, 1605-1607.) On January 2, 1990, appellant told Linton he was going to obtain money for Linton by arranging a narcotics transaction.” (RT 1558, 1561, 1600, 1602-1604.) The records for appellant’s home telephone showedthat there were three calls made from appellant’s house to a business called A.R.A. on January 2. (RT 1496-1497, 2438-2441.) Londell Richardson, an employee of A.R.A., overheard fellow employees Jack Barron and Willie Thomasstate they were going to a bar to engage in a drug deal involving $50,000 and three or four kilos of narcotics. (RT 1475-1476, 1482-1487, 1489, 1494-1495.) Later that day, Linton drove appellant and Cyprian to appellant’s house, where appellant retrieved a .38 caliber handgun, a .380 caliber handgun,a rifle, and a plastic bag filled with yellow pages that was supposed to appear to be a bagfilled with money. (RT 1562-1563, 1592, 1607-1608, 1765-1766, 2554.) Appellant also had a cellular telephone, which he plugged into the cigarette lighter ofLinton’s Blazer. (RT 1334-1335, 1503-1504, 1525-1526, 1543-1544, 1598-1599, 1608-1609.) The men droveto a bar called Bar Mi Cabana. (RT 1612-1613, 1765, 2233-2235.) Appellant exited the Blazer and talked to Thomas and Barron for approximately 30 to 45 minutes. (RT 1564, 1613, 1615-1616, 1767-1768, 3, Cyprian did not own a beeperor a cellular telephone in December 1989 or January 1990. (RT 1412-1413, 1758-1759, 1817, 1881.) Linton did not own a beeperthat functioned. He did, however, keep a nonfunctioning beeperin the glove compartmentofhis vehicle. (RT 1413, 1660, 1732, 1734.) 4, Williamstestified that appellant was with her on January 2, 1990. (RT 2027-2029, 2100-2103.) 1872, 2233, 2235, 2239-2240, 2246.) Barron and Thomasthenleft togetherin. a blue Sprint. (RT 2250-2251, 2258.) Appellant retumedto the Blazer and . told Linton to follow the blue car to a house in South Gate. Linton began to follow the car, but appellant then directed Linton to enter a nearby freeway and Linton complied. (RT 1565-1566, 1616, 1618, 1704-1705, 1768-1769.) The menreturned to appellant’s house, where appellant droppedoffthe gunsandtheplastic bag. Appellant and Linton drove separately to the area near Cyprian’s house; Linton parked his Blazer in the driveway near Pierre’s residence. (RT 1566-1567, 1618, 1769.) The men then drank and smoked marijuana. At somepoint, appellant received a page and returned the telephone call. The men eventually went to the vacant upstairs bachelor apartmentlocated behind Pierre’s residence. (RT 1429-1430, 1568-1569, 1571, 1770.) Lee subsequently arrived and joined appellant and the others. Approximately ten minutes later, Barron and Thomasarrivedin the blue Sprint. (RT 1340-1341, 1570-1571, 1770-1771.) Appellant wentoutside to talk to Barron and Thomas. Appellant later returmedto the upstairs apartmentto retrieve Linton and said they neededto get the guns and the fake money. (RT 1572, 1619, 1771.) Appellant and Linton drove separately to appellant’s house. (RT 1572-1573.) Appellant retrieved the guns and plastic bag and got into Linton’s Blazer. (RT 1573, 1620.) Appellant and Linton then returnedto the area ofPierre’s apartment and parked behind the blue Sprint, where Barron and Thomas were waiting. (RT 1573- 1575, 1620.) Appellant, Linton, Barron, and Thomaswalkedto the upstairs apartment, where Cyprian and Lee were waiting. (RT 1575-1576, 1621, 1771.) Once inside, appellant pulled out a .38 caliber revolver, Linton pulled out a .380 caliber weapon, and someoneordered Barron and Thomasto “[g]et down.” Barron and Thomas were forced to the floor. Appellant pulled some shoestrings out of his coat pocket and ordered the others to tie Barron’s and Thomas’ handsand feet. Linton complied, but appellant retied the laces around - Barron’s wrists because hesaid the bindings were nottight enough. (RT 1575- 1578, 1593-1594, 1621-1623, 1626, 1772-1773.) Cyprian went through Barron’s and Thomas’ pockets and removedtheir wallets. (RT 1774-1775.) At somepoint, Lee retrieved a rifle from downstairs, blindfolded Barron, and gagged and blindfolded Thomas. (RT 1627-1628, 1773, 1775-1776.) Appellant told Cyprian to move the blue Sprint in case someone had followed Barron and Thomas. Cyprian left the apartment and movedthe car around the corner. (RT 1582, 1777, 1782-1785.) In the meantime,a telephonerangin the upstairs apartment. Appellant answered the telephone andstated,“No, they haven’t got here yet.” (RT 1781.) Appellant placed Barron against a wall so that Barron wassitting with his feet in front of him and his hands behind his back. Appellant told Barron that he would bekilled if appellant did not receive three kilos of drugs. Appellant also told Barrontotell his narcotics connection that he had counted the money,but warned Barron not to speak Spanish to the person. Barron replied, “Don’t kill me. Ill give you anything you want.” (RT 1579-1580, 1595, 1624, 1629, 1776-1777.) Appellant bent downin front ofBarron and dialed a telephone number. (RT 1580-1581, 1629.) Appellant placed the telephone to Barron’s ear, but Barronstated that the phone wasnot ringing. Appellant, who had the gun and telephone in the same hand, began to redial the number when the gun discharged and shot Barronin the chest. Appellant stated, “Ah, shit. Ah, shit, man.” (RT 1581, 1629-1630, 1724-1730.) Appellant then walked overto Thomas and shot him twice in the head. (RT 1581, 1632, 1644-1645.) Appellant returned to Barron and shot him in the head. (RT 1582, 1632, 1644- 1645.) Appellant, Linton, and Lee exited the apartment. (RT 1582.) Cyprian. then returned from moving the Sprint. (RT 1344-1345, 1355, 1456-1457, . 1785.) Appellant stated, “I shot ‘em, man. I shot ‘em, man.” Appellant then said, “I hadto kill a man, I hadto kill him.” Cyprian asked, “What did you do that for, man?” Appellantstated, “It was an accidentso I killed the other one because I didn’t want a witness.” (RT 1345, 1437, 1445, 1583, 1633,1786- 1787.) Irma Sazo, who lived next to Pierre’s residence, looked out of her kitchen window after she heard the gunshots and saw appellant and the others exiting from therear ofthe property or the garage area. (RT 2141-2142, 2150- 2152, 2192-2193, 2202-2203, 2462.) She recognized the men, including appellant, because she had frequently seen them in her neighborhood.” (RT 2142-2145, 2157, 2162-2163, 2176, 2217.) Appellant walked towards Sazo’s homeand lookedin her direction. (RT 2457-2459, 2155.) When appellant noticed Sazo,he stated, “Oh, oh,the lady is in the window.” (RT 2155, 2215- 2216, 2228.) Appellanttold the others, “We’ve got to movethese people out ofhere.” (RT 1583, 1633.) Appellant and the others decided to place Barron’s and Thomas’s bodies in Linton’s Blazer. Linton movedthe Blazerinto the garage. (RT 1584, 1634, 1786-1787, 1789.) Appellant and Linton, and possibly Cyprian and Lee, dragged Barron’s and Thomas’ bodies downthestairs and placed them intherearofthe Blazer. (RT 1584, 1634-1636, 1787, 1850-1852, 2309.) Cyprian noticed bloodon thestairs where Barron’s and Thomas’bodies had been dragged and decided to clean the area. He went acrossthestreetto his 5. Sazo described appellant as having a thick Afro. (RT 2212-2213, 2225-2226, 2452-2453.) At the time, however, appellant had a long, jeri-curl. (RT 1521, 2163.) house, filled an orange bucket with water, and returnedto the stairs. He threw. water at some ofthe bloodat the bottom ofthestairs, but it had no effect. (RT _ 1345-1346, 1348, 1439, 1585, 1636-1637, 1788-1789, 2160-2161, 2195-2196, 2449-2450.) While Cyprian was doing this, Sazo called the police. (RT 2147, 2161, 2208.) Whenthe police arrived a few minuteslater, appellant, Cyprian, Linton, and Lee fled. (RT 1789.) As Cyprian was running from the scene, a car drove alongside of him. Appellant was in the car and told Cyprian to join him. (RT 1791.) The two men proceeded to appellant’s house, where appellant removed his bloody clothes and gave them to his wife, Monique Williams. Cyprian removedhis shoes and shirt and also gave the items to Williams, wholeft in her car and was gone for approximately 15 to 20 minutes” (RT 1793.) Appellant told Williams that he would be “out riding” and that he would contact her. (RT 1794.) Appellant and Cyprian then got into appellant’s Mercedes and drove to a motel in Long Beach, where they spent the night. (RT 1797, 2325-2327.) In the meantime, Linton reported his Blazer as being stolen. (RT 1637- 1638; 1689-1690.) Linton attempted to call appellant’s pager approximately nine times. (RT 1639-1640, 2435-2436.) At the crime scene, the police discovered that Barron’s and Thomas’ bodies had been placed head-downin the rear of the Blazer. (RT 2308-2309.) The men’s hands weretied behindtheir backs, their feet were bound, and there were ligatures around their necks. (RT 2309.) Police searched the upstairs apartment and recovered a .30-caliber carbine rifle; a .38-caliber Smith and Wesson revolver; a .30-caliber Rhom revolver; a telephone hand receiver, base, and cord; a pager; the wallets of Barron and Thomas; and a shoppingbagfilled with yellow pages disguised to 6. Williamstestified that she did not hide any bloody clothing. (RT 2039-2040.) look like money. (RT 1587-1588, 1592, 1996-1997, 2281-2282, 2288, 2537, 2542, 2545, 2554, 2556-2558, 2608-2609, 2620-2621, 2663-2664.) The .38-caliber Smith and Wesson revolver had blood spatters on it. (RT 2476, 2483-2484, 2487, 2538-2540.) These spatters were consistent with “blowback,” which occurs when a personis shot and the tissue and bloodis blown backin the opposite direction ofthe trajectory of the bullet. (RT 2584.) Thepolice also found a Titan .380 handgunin the garage and an orange bucket on the stairs. (RT 2283-2285, 2553-2554, 2561, 2609, 2628.) A cellular telephone was found near the downstairs house where Pierre resided. (RT 2270, 2287, 2296-2297, 2604-2605.) The phone appearedto besimilar to the one belongingto appellant. (RT 1364, 1409-1410.) The police also located the blue Sprint, which was parked around the cornerfrom the crime scene. (RT 2394-2396, 2398.) Appellant’s fingerprint was found on the outside driver’s side mirror of the Blazer. (RT 2371.) Appellant’s right thumbprint and a fingerprint from his right index finger were found on the telephone base located in the upstairs apartment. (RT 2365-2368-2370.) One of appellant’s fingerprints was also found on a cabinet in the apartment. (RT 2368-2370, 2372.) Fingerprints belonging to Lee, Cyprian, and Linton were also found at the crime scene.” (RT 2375.) No fingerprints were found on the weaponsorthe cellular telephone recovered from the scene ofthe murders. (RT 2468, 2472, 2476-2479.) It was not unusualto find no identifiable prints on a gun found at a crime scene. (RT 2488.) Sazo told the police that she recognized the men whohadbeenin the yard because she had seen them in the past and because one of them lived 7. There were 35 lift cards containing fingerprints from the crime scene that were identifiable but could not be matched to anyone. (RT 2378.) 8 acrossthe street. (RT 2448, 2465.) Sazo identified appellant in a photographic. mug book. She subsequently identified appellant, Cyprian, Linton, and Lee in _ photographic lineups. (RT 2147-2148, 2158, 2166, 2572-2576.) A medical examination of Thomasrevealed that he had died from two gunshot woundsto the head. (RT 2400-2401.) Both shots entered the right side ofthe head abovetheear and passed throughthe brain. (RT 2401, 2405.) There was soot or powdergasalong the paths ofthe bullets, indicating the shots were fired at close range. (RT 2401-2402.) A medium caliber bullet and multiple tiny lead fragments were recovered. (RT 2402.) Thomas’ hands and feet were boundwith shoelaces and there was a loose ligature around his neck consisting of a torn T-shirt. A small sock had been placed in his mouth as a gag. (RT 2405.) A medical examination of Barron revealed two gunshot wounds. One bullet entered his chest, pierced his heart, and exited through his back. (RT 2407, 2413.) A muzzle stamp on Barron’s chest and soot on his T-shirt indicated that the gun had beenpressed against his chest whenit was fired. (RT 2407-2409, 2413-2416, 2423.) The secondbullet entered from behind Barron’s right ear and lodged in his spine, where it was recovered. Soot and smoke along the path ofthe bullet indicated thatit was fired at close range. (RT 2407, 2412.) Barron wasstill alive when he wasshot in the head because there was blood along the path of the bullet. (RT 2411, 2421-2423.) Both gunshot wounds were fatal and would have been independently fatal. (RT 2411.) In addition to the gunshot wounds, Barron’s hands were bound and a T-shirt was tied loosely around his neck. (RT 2410-2412.) David Butler, a senior firearms examiner, examined the bullets retrieved from both bodies and determined that they were .38 or .357 caliber bullets that were fired from a revolver-type weapon. The bullets had five lands and grooves with a right-hand twist. (RT 2493-2495, 2498-2499, 2505-2506, 2522.) The .38 caliber Smith and Wessonrevolver recovered from the murder scene. had five lands and grooves with a right-hand twist; however, Butler could not _ conclusively determine that the weapon fired the bullets recovered from the bodies because the projectiles were damaged.” (RT 2495-2499, 2510-2512.) On January 3, 1990, the day following the murders, appellant and Cyprian drove by the crime scene and noticed the police. They then took appellant’s Mercedes to A.M.S. Auto andsold it for $10,000 in cash. (RT 1798, 1861.) Appellant gave half the money to Cyprian. (RT 1862.) Appellant called his wife, Williams, who picked them up and took them to buy clothes and shoes. (RT 1799, 1864-1865.) Williams then drove them to a Travelodge, where appellant obtained a room and madereservations for him and Cyprian to fly to New York. (RT 1800, 1802-1804, 2346, 2348.) Williams left the motel and returned with suitcases. (RT 1804.) Williams drove appellant and Cyprian to the airport. (RT 1805.) The two men flew to New York, where they stayed at the Stanford Hotel before moving to another hotel down thestreet after two or three days.7 (RT 1754, 1808.) While in New York, appellant and Cyprian used the names “Mark”and “Michael Cole.” (RT 1854.) After several days in New York, appellant and Cyprian went to the 8. Butler testified that the other weapons recovered from the murder scene could not have been used to shoot the bullets recovered from Barron’s and Thomas’ bodies. (RT 2513, 2529.) 9. Williamstestified that she did not buysuitcases, that appellant did not go to New York, and that she only took Cyprian to the airport. (RT 1967-1968, 2040-2043, 2105-2107, 2109, 2112-2114, 2680.) Appellant and Williams continued to live at their house from January 3, 1990, through January 16, 1990, but she could not explain why no telephone calls were made totheir residence duringthattime period. (RT 2674, 2678.) The telephone recordsfor appellant’s home showedthat no telephone calls were billed to his number from January 2, 1990, through January 15, 1990. The final call charged to appellant’s number occurred on January 17, 1990. (RT 2440-2441.) 10 airport. Appellant gave Cyprian $500, and Cyprian took a cab to the bus. station, where he boughta ticket to Las Vegas. (RT 1810.) After Cyprian arrived in Las Vegas, he wentto the Horseshoe Inn and saw appellant at a craps table. Appellant was there with Williamsandsaid he was registered under Williams’ name. (RT 1508, 1811-1812, 1868, 2120, 2122.) Cyprian waseventuallyjoined in Las Vegas by his wife, Cynthia. (RT 1507, 1536-1537, 1811.) Appellant and Williams remained in Las Vegas until January 15, 1990. (RT 2119-2120, 2122.) The Cyprians returned to Los Angeles by bus the day before the Martin Luther King holiday. (RT 1509, 1536-1537.) A few days later, Cyprian met appellant and asked him what had happened on January 2. Appellant stated that he shot Barron and Thomas twice. (RT 1813-1814.) On January 19, 1990, appellant and Williams applied for an apartment in Wilmington and movedinto the apartment the next day. (RT 1911, 2009- 2010, 2125.) Appellant told a neighbor, Raymond Valdez, that his name was “Patrick.” (RT 1907.) Everyone in the apartment complex called appellant “Patrick.” (RT 1945.) On February 8, 1990, appellant was arrested. (RT 2131-2132.) He told Williams that he was being framed by Linton and neededanalibi. (RT 2030, 2035.) Whilein jail, appellant called Kathy Matuzak, who lived with neighbor Valdez, and said he neededtheir help. (RT 1913-1914, 1953.) Williams also approached Matuzak about helping appellant and asked Matuzak if she was planningto testify. (RT 1916, 1946, 1951, 2029.) Appellant asked Valdezto testify that appellant was with him on January 2, 1990, even though appellant was not with Valdez and Valdez did not know appellant at that time. (RT 1908, 1912-1913, 1916, 1919, 1926, 1941, 2038.) il Appellant offered Valdez some marijuana and $1,500 for his testimony. Valdez. agreedto testify on appellant’s behalfbecause he believed appellant was being _ framed. (RT 1913, 1935, 2130, 3030-3031.) Appellant also asked Valdez’s neighbors, Chris and Monica Lowery,to testify on his behalf. (RT 1913-1914.) At somepoint, Willliams and three males asked Valdez ifhe was going to testify on appellant’s behalf. (RT 1914, 1964.) Valdez thought the men were from the Rolling Sixties gang based on the way they were dressed. (1917- 1918.) Williams told Valdez what to say while on the witness stand. Appellant also talked to Valdez on several occasionsto tell Valdez what to say during his testimony. (RT 1915, 1921, 2029.) Valdez eventually moved to a different apartment. Despite the move, Williams later approached Valdez and askedifhe wasstill going totestify for appellant. (RT 1919.) Asa result ofthese continued contacts by Williams and appellant, Valdez feared for his and Matuzak’s lives. (RT 1920.) At some point, Williams approached Dietrich Pack, an employee,at Delcomber Communications (the business where appellant purchased the pager) and offered Pack $100 to destroy appellant’s records or records belongingto “Patrick Cole.”(1983-1984, 1994, 2571.) When Pack waslater served with a subpoena,she appearedto be on the verge ofcrying andsaid she 10. Williams deniedtelling Pack to lose or destroy any paperwork. (RT 2036-2037.) Delcomber had a pager contract with someone purporting to be Patrick Cole. (RT 1980.) Although the signature of Patrick Cole on the Delcomber’s form could not be matched with appellant’s signature (RT 2330- 2332), the pager recovered from the crime scene was the same pager that was sold to Patrick Cole. (RT 1980, 1985-1986, 1996-1997, 2545.) In addition, there were six telephone calls madeto the pager from Williams’ father’s house between December 9, 1989 through December 16, 1989, and 11 calls made between December 26, 1989 through January 3, 1990. (RT 2432-2433.) Linton called the pager twice on December 26, 1989, twice on December28, 1989, twice on December31, 1989, once on January 2, 1990, and ninetimes on January 3, 1990. (RT 1646, 2435-2436.) 12 would not come to court. (RT 2571.) At some point, Cyprian saw appellant in the county jail. Appellant | advised Cyprian not to mention New York and asked Cyprian what he was planning to say in court. (RT 1881.) 2. Defense Evidence Appellant’s defense was alibi. Appellant maintained that he did not commit any of the charged crimes and that he was with his wife, Monique Williams, when the murders and robberies occurred. Williamstestified that she met appellant in 1988. At the time, appellant had a BMW which had a nonfunctioning car telephone. (RT 2825, 2832-2833.) Appellant sold the car before Christmas 1989. (RT 2825.) After he sold the BMW,he drove Williams’ white Hyundai or his mother’s Mercedes. (RT 2827.) Appellant did not have a cellular telephone, although he did have a pager in 1988 and 1989. (RT 2829, 2831, 2857.) Williams never saw appellant display or possess guns and he never kept any firearms at home. (RT 2834.) When Williams and appellant lived together at 360 % 122ndStreet, none of their friends ever visited or called the house. (RT 2846, 2860-2861.) Appellant also called Dino Lee as a witness. Lee testified that on January 2, 1990, at approximately 6:00 or 7:00 p.m., he arrived near Pierre’s residence and met appellant, Cyprian, and Linton. (RT2730, 2732, 2749-2750, 2752, 2791.) The men wentupstairs to the apartment behindPierre’s residence, wherethey discussed a narcotics transaction. (RT 2730, 2754.) At some point, appellant and Lintonleft the apartment for approximately 20 to 30 minutes and returned in the Blazer. (RT 2755, 2793.) Appellant and Linton walked into the upstairs apartment with Barron and Thomas, whowerethrownto the floor. (RT 2756.) Appellant and Linton 13 placed firearms to Barron’s and Thomas’ heads and told them not to move.. (RT 2757-2759.) Lee placed his knee on Thomas to hold him down while - Linton bound Thomas’s hands with shoelaces from appellant’s pocket. (RT 2758-2759, 2767, 2791.) Appellant placed a gag in Barron’s mouth. (RT 2766.) Barron’s and Thomas’ wallets were taken by appellant and Cyprian. (RT 2785-2786, 2795.) At somepoint, Linton left the apartment and returned with a .30 carbine rifle. (RT 2768.) Linton placed the rifle somewhere andretained the handgun he had previously carried. (RT 2768-2769.) Cyprian left the apartment to movethe victims’ car. (RT 2787.) Barron wasplaced with his back against a wall. (RT 2723.) Appellant had a telephonein his hands and wasclicking the gun near Barron’s ear. (RT 2724-2725.) Appellant was standing in front of Barron and holding the telephone receiver when he shot Barron. (RT 2724-2725, 2727-2728.) Appellant then shot Barron again and shot Thomas twice in the head. (RT 2781-2782, 2784, 2792.) Appellant, Linton, and Lee exited the apartment. (RT 2735.) Cyprian then joined the group. (RT 2736-2737.) Appellant dragged Barron downthe stairs, and appellant and Linton dragged Thomas downthestairs. (RT 2769- 2770.) Lee opened the garage door, and they placed the bodiesin the Blazer. (RT 2738.) Cyprian went across the street to his mother’s house, returned with a bucket, and attemptedto clean the stairs by throwing water on it. (RT 2772- 2773.) Whenthe police arrived, everybody fled. (RT 2774-2775.) Linton and Lee got a ride from someone. (RT 2776-2777.) Appellant was arrested on February 8, 1990, after he had called the police to tell them he knew the police were looking for him. Appellant told the police that they could pick him up at his mother’s house. (RT 2809, 2813.) 14 Williams never approached Valdez or Matuzak and offered them money. and marijuanaif they testified for appellant, nor did she ever talk to Valdez _ about his testimony. Although Williams and appellant did discuss the possibility ofhaving Valdez testify falsely, she did not make any effort to have him actually testify on appellant’s behalf. (RT 2821-2823, 2851, 2859, 2866- 2867.) Williams did not call Delcomber Communications and ask them to destroy records relating to Patrick Cole. (RT 2840, 2852.) Pack had a reason to dislike Williams because she once dated Pack’s ex-boyfriend. (RT 2852- 2853.) B. Penalty Phase Evidence ‘1. Prosecution Evidence a. The Assault On Kenneth Moore In 1983, Detective Robert Magnuson wasassigned to CRASH and knew appellant to be a hardcore memberofthe Five Nine Hoover Crips. (RT 3234, 3236-3239.) Appellant was nicknamed “Nutty.” (RT 3241.) On May28, 1983, 18-year-old Kenneth Moore andseveral other boys wereriding their bicycles. (RT 3182, 3196.) None ofthe boys were associated with any gang. (RT 3197.) At somepoint, the boys rode past a group ofmen who yelled, “Five-Nine Hoover” and began to run after them. The boys went another block and ran into a group of men and women whobelonged to the Five Nine HooverCrips, including appellant. (RT 3183-3184, 3199-3200.) The men wereyelling, “Come here, cuz,” “This Five-Nine,” and “Youall give meyour bikes.” (RT 3196.) The girls stated, “Grab me a bike.” (RT 3196- 3197.) The boys wentin different directions. (RT 3197.) Mooretried to go 15 through the crowd andfell. (RT 3197.) The men beat Moore, and oneofthe. men, Eddie Jackson, fatally shot Moore twice. (RT 3185, 3192-3194, 3198, . 3250.) | . Appellant was charged and convicted of misdemeanor assault with a deadly weapon in violation of Penal Code section 245 for his participation in the crimes committed against Moore. The conviction did not involve a personal use of a firearm. (RT 3298.) b. The Shooting At Officer Sims On December 3, 1983, Officer Carl Sims was in uniform and was standing outside his police car after arresting a burglary suspect. (RT 3279, 3295.) The suspect’s vehicle was being impounded anda towtruck driver was standing nearby. (RT 3279.) Gunfire suddenly erupted behind Officer Sims. (RT 3280.) The rounds were traveling in close proximity to his head and upper torso. The tow truck driver pushed Officer Sims towards the police vehicle and stated, “Get down, they are going to kill you.” (RT 3281.) Officer Sims dropped to his knees and grabbed a shotgun. (RT 3281- 3282.) His partner, Lauro Montes, called for backup from the front seat. (RT 3282.) Officer Sims turned around and saw Tommy Thomas, whoyelled, “Watch out, officer. He’s behind you. Watch out, he’s behind you.” (RT 3282.) Officer Sims saw appellant standing behind a palm tree, which wasin the direction from which the bullets had emanated. (RT 3282, 3285-3286.) When Officer Simsraised his shotgun, appellant ran and Officer Sims chased him. (RT 3282-3283.) Officer Sims eventually found appellant and a numberof other gang members near a truck. (RT 3283.) Appellant was crouched in the bed of the truck. (RT 3283, 3285-3286.) His hands were hurriedly moving behind tool 16 box. Officer Sims told everyone to put their hands in the air, and everyone complied. (RT 3284.) Officer Sims searched the truck and found a .38-caliber revolver immediately below the tool box where appellant had been moving his hands. (RT 3286.) A search of appellant revealed six live rounds of .38 ammunition, which were consistent with the weapon that was found. (RT 3286-3287.) No charges werefiled in the case. (RT 3293-3294, 3298.) c. The Robbery And Assault OfMona Thomas And Her Father On July 7, 1985, appellant was a memberofthe Rolling 60s gang. (RT 3242-3243.) On that day, Mona Thomaswasin a car with her father. (RT 3251.) They stopped the car near a group of 30 men. (RT 3251-3252.) One of the men asked for money, and Thomasreplied that she did not have any money. (RT 3252.) Somebody threw brick at the window. The men pulled her father out ofthe car and hit him with a gun until he was unconscious. (RT 3252.) They also pulled Thomasoutof the car and hit her. (RT 3252.) She wasstruck in the right eye several times. (RT 3253.) Officer Michael Daly waslater flagged down by Thomas, who was bloody and hysterical. (RT 3263.) Officer Daly noticed an unconscious, bloody male lying in the street. (RT 3264.) Thomasstated that she had just been robbed andthat the attackers were standing in front of a nearby apartment complex. (RT 3270.) Officer Daly and his partner approached the men. (RT 3270.) A numberofpeople, including appellant, were detained. Thomasstated that the detained people were the ones involvedin the attack. (RT 3264-3265.) She 17 pointed to appellant as being involved in the crime+” (RT 3264-3266,3271, 3276-3277.) Thomassaid that $20 had been stolen. Appellant had $2,000 which consisted, in part, of $20 bills. (RT 3272.) No charges were filed against appellant in the case. (RT 3298.) d. Appellant’s Possession Of A Revolver On December7, 1985, Officer Michael Bowers conducteda traffic stop of appellant’s car. (RT 3207-3208.) Officer Bowers found a bluesteel revolver between the console and the driver’s seat. There werefivelive rounds in the gun. (RT 3208-3209.) No charges were filed in the case. (RT 3298.) 2. Defense Evidence Whenappellant was threeor four, he was adopted by Jessie and Charles Williamsafter he had been foster child in their house. (RT 3303-3304, 3363- 3364.) The Williams’ had two daughters, Betty Williams Hill and Edna Vickers. (RT 3302-3303, 3364-3365.) Appellant was alwaystreated like a memberof the family. (RT 3325-3326.) The Williams later becamefoster parents for mentally disabled children. (RT 3304.) Appellant was friendly with the children and would help his parents care for them. (RT 3314-3316, 3347, 3378-3379.) Appellant was not deprived as a child and wasraised in an upper middle class or upper class family. (RT 3326.) He was given“all the gadgetsthat any young child would have.” (RT 3306.) There was no shortage of food, clothing, love, or care. (RT 3326-3327.) Appellant was “not deprived of 11. Thomastestified that she did not remembertelling an officer that appellant was involved in the attack. (RT 3261.) 18 anything”and received “exactly what he needed to makeitin life.” (RT 3332-. 3333, 3354, 33593391.) Appellant’s mother did everything in her power to make appellant a useful memberof society. (RT 3390-3391.) The family attended church, and appellant’s parents attempted to give him guidance and teach him aboutright and wrong. Appellant understoodthe difference between right and wrong and understood the significance of taking another person’s life. (RT 3327, 3334, 3355, 3372, 3392.) Appellant had a normal childhood. Hedid not have any disciplinary problems while he was in school and alwayshad a “smile on his face.” (RT 3305-3306, 3314, 3366-3367, 3373-3374.) Appellant treated his adopted parents with the “utmost respect” and was generally obedient. (RT 3309, 3312, 3339, 3341, 3374, 3376.) When appellant was reprimanded, he would correct the deficiency. (RT 3309-3310.) He did not use profanity aroundhis parents and did not drink or smoke. (RT 3310-3312, 3329, 3343, 3349.) When appellant was approximately 18 or 19, he moved outofthe house. However, he would visit his parents approximately two or three times a week and sometimes every day. (RT 3307, 3312, 3370-3371.) In addition, he was always present for holiday and family functions. (RT 3313, 3382.) When appellant’s aunt was sick with cancer, he helped his mother care for her for six or seven months. (RT 3321.) On one occasion,helifted the aunt out of the house and into a car. (RT 3321.) He wouldalso goto the store for her or take her to medical appointments. (RT 3384.) Appellant had five children. (RT 3316.) He wasa “faithful father” and would play with the children and change diapers. (RT 3316-3317.) For Christmas, he would buythe children “everything out of the toy store.” (RT 3322.) Appellant’s family members were unawareof the times that appellant 19 had been arrested, although his mother was aware of one incident when. appellant was in jail. (RT 3331-3332, 3360-3362, 3389-3390, 3395.) His . motherdid notrecall a police officer bringing appellant home when he was a juvenile. (RT 3387-3388.) 3. Prosecution Rebuttal Evidence OnJuly 2, 1980, appellant was arrested by Officer Mike Damianakasfor possession of a deadly weapon. Because appellant was a juvenile, he was booked, transported to his home, and turned overto the custody ofhis mother, who wasadvised ofthe nature of the arrest. (RT 3409.) APPELLANT’S CONTENTIONS 1. The prosecutor unconstitutionally exercised peremptory challenges against female African-American prospective jurors. (AOB 63-112.) 2. Thetrial court erred in granting the prosecutor’s motion for cause against prospective juror Reheis. (AOB 113-126.) 3. The trial court erroneously excused a prospective juror who was equivocal about whether herattitude about the death penalty would affect her penalty phase deliberations. (AOB 127-140.) 4. Thetrial court erred in refusing to dismiss Juror Coon for cause. (AOB 141-148.) 5. Appellant’s due process rights were violated when the trial court failed to give a limiting instruction regarding the guilty pleas of appellant’s accomplices. (AOB 149-157.) 6. The trial court violated appellant’s constitutional rights when it refused to allow him to question Patrick Linton about the jury verdict in Linton’s case. (AOB 158-168.) 20 7. The prosecutor committed misconduct by tmpugningthe integrity of defense counsel. (AOB 169-174.) 8. The prosecutor committed misconduct by questioning witnesses aboutfacts not in evidence. (AOB 175-197.) 9, Thetrial court erred in instructing the jury that efforts to suppress evidence and flight could be considered as evidence of guilt. (AOB 198-201.) 10. The robbery and felony murder special circumstance charges must be reversed because there was insufficient evidence to corroborate the testimony ofthe accomplices and becausethe court allowedthejury to convict appellant of a felony murder special circumstance that was never charged. (AOB 202-233.) 11. The trial court violated appellant’s state and constitutional rights whenit admitted “stale evidence ofuncharged criminalactivity” and instructed the jury that it could recommenddeath if it found that appellant was “involved in” the uncharged criminal activity. (AOB 234-298.) 12.‘ The trial court violated appellant’s Fifth, Sixth, Eighth, and Fourteenth Amendmentrights whenit instructed the jury that it could impose death if appellant was “involved in” criminal activity. (AOB 299-318.) 13. The trial court violated appellant’s constitutional rights by permitting jurors to sentence appellant to die based on aggravating factors that a majority ofjurors were not required to find true. (AOB 319-328.) 14. The instructions failed to properly guide the jury’s discretion. (AOB 329-330.) 15. Counsel was ineffective. (AOB 331-491.) 16. Appellant’s waiverofhis right of self-representation was invalid because he was given inaccurate information. (AOB 492-498.) 17. California’s death penalty schemefails to provide a meaningful wayto distinguish the few who are selected for death from the many whoare 21 not. (AOB 499-505.) 18. Reversal is required because the court failed to instruct the jury _ that it must find beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors. (AOB 506-511.) 19. California Penal Code section 190.3, subdivision (a), is being applied in a mannerthatis arbitrary and capricious. (AOB 512-519.) 20. The failure to provide intercase proportionality violates appellant’s constitutional rights. (AOB 520-529.) 21. The death penalty violates international law. (AOB 530-532.) 22 ARGUMENT I. APPELLANT’S CONSTITUTIONAL RIGHTS WERE NOT VIOLATED BY THE PROSECUTOR’S USE OF PEREMPTORY CHALLENGES BECAUSE THE RECORD CONTAINS SUBSTANTIAL EVIDENCE SUPPORTING THE TRIAL COURT’S RULING THAT THE PROSECUTOR HAD RACE-NEUTRAL REASONS FOREXCLUDING THE POTENTIAL JURORS AT ISSUE Appellant contendsthat his state and federal constitutional rights were violated because the prosecutor used his peremptory challenges to impermissibly dismiss African-American females from the jury. (AOB 63- 112.) This argument mustbe rejected because the record contains substantial evidence supportingthe trial court’s ruling that the prosecutor hadvalid, race- neutral reasons for utilizing his peremptory challenges against the potential jurors. A. Relevant Facts And Proceedings 1. The Jurors At Issue a. Theresa Cooksie In herjuror questionnaire, Theresa Cooksie stated that the death penalty should be imposed on “cold hearted killer[s].” (21 Supp. 1 CT 5162-5163.) She strongly agreed that a person should receive the death penalty if he killed another person without legal justification. (21 Supp. 1 CT 5164.) However, she also stated she would vote for life in prison regardless of the evidence and that life in prison without the possibility of parole was a more severe punishmentthan the death penalty. (21 Supp. 1 CT 5165.) During voir dire, Cooksie was asked if she “would in every case automatically vote for a verdictoflife in prison withoutthe possibility ofparole 23 and nevervote for a verdict of death.” Cooksie answered, “Yes, depending on the evidence of the case I would vote forlife in prison.” Shelater stated that _ she would not vote for life in prison in every case, but would base herdecision on the evidence. (RT 214.) Cooksie was subsequently asked about her statement on the jury questionnaire that she would vote for life in prison regardless of the evidence. Cooksie explained, “I didn’t understand that question so I would say no onthat, too.” (RT 215.) She also clarified that she believed the death penalty was moresevere than life in prison. (RT 215-216.) Cooksie later admitted, “I wouldn’t want to vote for [imposing the death penalty] - - I mean, I would voteforit, butif, like, ] was on the jury, I wouldn’t wantto put myself in that predicament to vote for a death penalty if I were a juror.” When askedto clarify whether she could impose the death penalty, Cooksie responded, “I could but I wouldn’t.” Defense counsel then asked, “You wouldn’t under any circumstances?” Cooksie replied, “No.” (RT 217.) Cooksie subsequently stated that in certain circumstances she could imposethe death penalty, such as when the killing was “cold-hearted.” (RT 217-218.) When Cooksie was asked if she would impose the death penalty if it was justified by everything she had heard, Cooksie responded, If I heard everything in the evidence andI feel that I opposedit and then I changed my mindonit, I would overrule it, you know. Like say if I heard more evidence and I say I was wrong in thinking this and I heard little more and I decide that the death penalty shouldn’t be then I would overruleit. (RT 219.) Cooksie then stated that she could impose the death penalty if the evidence warranted it. (RT 219-220.) b. Paula Cooper-Lewis In the juror questionnaire, Paula Cooper-Lewis stated that the death penalty was “fair in somecases.” (10 Supp. 1 CT 2470.) Shealso stated that 24 she had not decided whether California should have the death penalty. (10. Supp. 1 CT 2471.) She agreed “somewhat” that a person should receive the _ death penalty if he intentionally killed another without legal justification. (1 0 Supp. 1 CT 2472.) During voir dire, Cooper-Lewis later stated that she would not automatically impose deathorlife in prison and believed she could imposethe death penalty. (RT 755-757, 760.) However, Cooper-Lewisalso said that she had not decided whether California should have the death penalty. (RT 758.) Later, she stated that, if she was in charge ofher own regime, she would have the death penalty as one of the possible sentences. (RT 759.) c. Ruth Jordan Ruth Jordan stated in herjuror questionnaire that capital punishment was not a deterrent to crime but was “necessary.” (5 Supp. 1 CT 1072-1073.) She agreed “somewhat” that a person should receive the death penalty if he intentionally killed another person without legal justification. (5 Supp. 1 CT 1074.) She also stated that she did not know whetherlife in prison without parole was a more severe punishment than the death penalty. (5 Supp. 1 CT 1075.) During voirdire, Jordan stated that she would not automatically impose death or life in prison. (RT 912-913.) Jordan said she “believe[d]” she would be able to impose the death penalty on another person. (RT 915.) d. Retha Payton In herjuror questionnaire, Retha Payton stated that the death penalty was “sometimes necessary.” (10 Supp. 1 CT 2436.) She believed that California should have the death penalty because it would force people to “think before committing a serious crime.” (10 Supp. 1 CT 2437.) 25 During voir dire, Payton stated that she would not automatically votefor. life in prison or death. (RT 728.) When Payton wasasked about herfeelings _ on the death penalty, she stated, “I have really not processed it because under some circumstances youfeel that it’s necessary and there are times when you don’t. It would depend on the circumstances.” (RT 728-729.) Shealso said she could not say whether the death penalty served as a deterrent. The prosecutorthen asked,“I just want your feelings. Do you think that the death penalty serves a deterrent valueto yourself? Do you think that it does?” Payton answered,“I hadn’t really pinned it down.” The prosecutor then stated, “You don’t have feelings one way or the other as to whether it serves a deterrent value or not?” Payton answered, “Sometimes it would and sometimesit would not. With some people it would and with some people it would not.” (RT 729.) The prosecutorthen stated, “In terms of your ownfeelings on the death penalty, you can’t give me anymore guidance on how youfeel aboutit other than you haven’t really thought about it?” (RT 729.) Payton replied, “No, I really haven’t. It is just not something that I would- - could say yes, it would, or no, it wouldn’t, because I hadn’t thoughtofit in that terms seriously.” (RT 729-730.) However, Payton stated that she believed she could imposethe death penalty if the circumstances warranted it. (RT 730.) e. Harriet Reed In her jury questionnaire, Harriet Reed stated that the death penalty should only be imposedfor “certain hardcore murders.” (14 Supp. 1 CT 3554.) She believed that California should have the death penalty “[u]nder certain circumstances” but refused to commenton the purpose of the death penalty. (14 Supp. 1 CT 3555.) She disagreed somewhat that a person who intentionally killed another person withoutlegal justification should receivethe death penalty. (15 Supp. 1 CT 3556.) She stated she did not know whetherlife 26 in prison withoutthe possibility of parole was a more severe punishment than the death penalty. (15 Supp. 1 CT 3557.) Duringvoir dire, Reedstated that she would not automatically vote for eitherlife in prison or death. (RT 386.) Reed said the death penalty should be imposed for “cruel murders” where bodies were mutilated or burned for no reason. (RT 389-391.) She added that she “never really thought about the death penalty” for “regular murders” and could notstate “what other reasons” would justify the death penalty. (RT 389, 391.) 2. The Wheeler Motion During jury selection, the prosecutor used a peremptory challenge to excuse Reed. (RT 1187.) The prosecutor subsequently used a peremptory challenge to excuse Cooksie. (RT 1188.) The prosecutor later accepted the jury four times. (RT 1199-1201.) After additional voir dire, the prosecutor again accepted the panel on two occasions. (RT 1209.) Whenthe prosecutor used a peremptory challenge to excuse Cooper- Lewis, defense counselstated,“I think we have the beginnings of a Wheeler[] situation. Of the five blacks that have been in the 12, as part of the 12, the prosecution has perempted Miss Reed, Miss Cooksie, and Miss Cooper-Lewis. I guess only three, three ofthe four.” (RT 1210.) Counsel noted that appellant was African-American and that there was only one African-American on the jury. The court noted that defense counsel had excused a male juror who appeared to be African-American. Defense counsel replied, “He is Creole, whatever that is.” The court asked the prosecutor to justify his use of the peremptory challenges. (RT 1211.) The prosecutor stated that Reed, Cooksie, and Cooper-Lewisall “rated 12. People v. Wheeler (1978) 22 Cal.3d 258. 27 very reluctantly in terms oftheir ability to impose the death penalty.” The. prosecutor stated that in addition to a potential juror’s answers on the jury . questionnaire, he also rated the jurors in terms ofreluctance towards answering his questions during voir dire. He believed that each of the three women had “demonstrated a reluctance in terms ofanswering direct questions which called for the requirement of the imposition of the death penalty with an affirmative answerthat they would imposeit.” He believed that the women’s reluctance to imposethe death penalty was evident “from the answersthat they gave,” “the . time that it took them to respond to the question, their general demeanorin answering the questions,”andhis “impression from each ofthem.” (RT 1211.) The prosecutor noted that his victims were “a male black and a male Hispanic” and that there was going to be a “great cross-section ofpeople” who would be called to the stand andthat “[nJot one of them are white.” (RT 1213.) The court denied the motion and voir dire continued. (RT 1213.) The prosecutor accepted the jury three more times. (RT 1224.) When Payton was placed in the jury box as a potential juror, the prosecutor used a peremptory challenge to dismiss her. (RT 1225.) Defense counsel made a second Wheeler motion. The court asked the prosecutor to explain his use of the peremptory challenge to dismiss Payton. (RT 1226.) The prosecutor explained that after reading her juror questionnaire, he had rated Payton “a two plus,” but had “downgraded her to a one”after listening to her responses during voir dire. The prosecutorstated, “In order to get a one on myscale, she has to answer with extreme hesitance towards any questions related to the death issue or I would never rate her downthat far.” The prosecutor added, “I would have to look at her questionnaire to know exactly what it was to cause me concern but, obviously, there were hesitations in her answers- - to the responses she gave me.” (RT 1226.) 28 Defense counsel noted that four out of the six African-American. potential jurors had been dismissed bythe prosecutor andthat they had all been | women. (RT 1226.) Defense counsel also arguedthat the prosecutordid not actually remember exactly why he had downgraded Payton. (RT 1227.) The prosecutorstated, “I don’t care if I have to kick 100 blacks, I want to get a fair trial. If that means kicking 100 whites I’ll do that.” He noted that eight of his peremptory challenges had been against non-African-Americans.. He added, “It makes no difference to me the racial makeup ofthis jury other than the fact that we don’t haveto do it again.” (RT 1227.) Defense counsel asserted that the prosecutor had utilized four of his twelve peremptory challenges to remove African-Americans and “that is 33 percent right there.” He added, “We haveonly had a mix of 10 percent blacks whohave comeonthis jury as potential jurors, and he has kicked 75 percent of them, so those numbers speak for themselves.” (RT 1227.) The court stated that the prosecutor had justified the use of his peremptory challenges and that they matched the court’s list of jurors that would likely be dismissed through the use ofperemptory challenges. When the prosecutor asked the court if it had made a mark near Payton’s name,the court replied, “This one I did not. I stopped making marks after awhile. That was my problem is that I started making marks and so those you had called on I understood. I stopped making marksafter a point. I’m sorry that I did that but at this point I did forget to.” (RT 1228.) After the prosecutorretrievedhis notes, he told the court that Payton had initially been rated a three but had been “downgradedto one.” The prosecutor had written “ambivalent, no opinions” next to her name. Theprosecutor noted that when Payton wasasked if the death penalty served as a deterrent, Payton replied, “I hadn’t really pinned it down.” Payton later stated that she had not thought about the death penalty. Based on her answers, the prosecutor’s 29 impression wasthat she did not know whatshe thought aboutthe death penalty. and whether she could impose it. The prosecutor added, “It was my general _ impressions from mydiscussion with her that she didn’t havetheability to do it, or I wouldn’t have downgradedherso far.” (RT 1229.) Defense counsel argued that Payton had stated she would not automatically impose life or the death penalty. He noted that Payton’s answers appeared to indicate that her feelings on the death penalty “would depend on the circumstances.” He added, “[W]e didn’t really get that much information from her, but the point is that she indicated she had the ability to imposeit.” (RT 1230.) The prosecutor countered that he did not believe that Payton had the ability to impose the death penalty “in spite of what her answers were.” He added,“It had a lot more to do with not whatshe said but how I read what she wassaying from being present in court with her and observing her demeanor and the way she answered questions. ... It was my general impression from the way she answeredthe questions, not what she said.” (RT 1230.) Defense counselreiterated that the prosecutor had used 13 peremptory challenges andthat 4 ofthem had been against African-American women. He added that less than ten percent of the potential jurors had been African- American. (RT 1231.) The prosecutor countered, “With the answersthat they gave and the way that they gave them,it wouldn’t have made any difference to me whetherthey were white, black, Hispanic, Chinese; it has nothing to do with it.” He reiterated that he had dismissed those jurors because of their demeanor,their answers, and his perceptionthat they could not imposethe death penalty. (RT 1231.) The court found that the prosecutor hadstated a sufficient justification for dismissing Payton. Although the court had not made notes regarding 30 Payton, it accepted the prosecutor’s explanation and denied the motion. (RT. 1231-1232.) Theprosecutorlater used a peremptory challenge to excuse Jordan. (RT 1232.) Defense counsel made a third Wheeler motion, noting that the prosecutor had used five peremptory challenges to remove five of the six African-American women. Counselalso noted that Jordan had been on the jury when the prosecutor had earlier accepted the jury panel. (RT 1233, 1236- 1238.) The prosecutor explained that he hadinitially accepted Jordan because the composition ofthe jury had been “somewhatsatisfactory.” The prosecutor noted that he had rated Jordan “very low.” Hestated that he had been reluctant to dismiss her because he wasafraid counsel would make a Wheeler motion. Headdedthat he was worried about offending the African-Americans on the panel. (RT 1234.) The prosecutor said that he had thought about the matter further and decidedit did not makesensetotry the case in front of a person that did not appear to have the ability to render a death verdict. The prosecutor reiterated, “It has nothing to do with the color of her skin. I can’t emphasize that enough. It has to do with her responses.” (RT 1234, 1236.) The prosecutor added,“I am kicking people who can’t imposethe death penalty.” (RT 1235.) He further explained, “[S]ometimes you get a feel for a person that you just know that they can’t imposeit based on the nature ofthe waythat they say something.” (RT 1237.) The court stated that it did not remember Jordan’s responses. (RT 1234.) The court subsequently said, “I have to say in my other death penalty cases I have found that the black womenare very reluctant to impose the death penalty; they find it very difficult no matter what itis. I have found it to be true.” The court added, “I can only go by what [the prosecutor] is saying because I stopped making notes... .” The court clarified that it was not 31 makingits ruling based on its observations in other death penalty cases. (RT. 1239.) The court explainedit was “just makinga little point. I just wantedto _ tell you my observation that I have seen this before and I can understand why. That’s all. But I am not making myruling based on that.” (RT 1239.) Defense counsel then argued, “I don’t mean to accuse the court of anything. If the court says that and the court is basing its ruling on that information or experienceI think that would be totally improper.” (RT 1239.) The court agreed, stating, “Of courseit is improper. I amjust giving it for your information, what J have observed.” (RT 1239.) The court denied appellant’s motion bystating, “Andatthis point I will accept [the prosecutor’s] explanation.” (RT 1240.) During subsequentvoirdire, the prosecutor asked the potential jurorsif any of them were concernedthat he had dismissed potential jurors because he believed that they could not impose the death penalty. (RT 1247-1248.) The prosecutor added, “If I have offended anybody I wouldlike to know aboutit because if it is going to cause you not to beableto listen to the evidencein this case and come back with a fair verdict, now is the time you’ve gotto tell us, because I’m going to do what I think is necessary to get a fair verdict.” (RT 1248.) After the jury was selected, the prosecutor stated that during jury selection he had exercised peremptory challenges to replace white jurors with African-American jurors. The prosecutor noted that he had excused the white jurors because he wanted “a greater mix of racial diversification” on this jury. Healso noted that he had rated the remaining African-Americans “very high” because their answers indicated they could impose the death penalty. The prosecutor concludedthat there were four male African-Americans, one female African-American, and seven whites on the jury. (RT 1250.) 32 B. The Trial Court Did Not Err In Denying Appellant’s Wheeler Motions The use ofperemptory challenges to removeprospectivejurors solely on the basis of membership in a cognizable group violates both the state and federal Constitutions(People v. Morrison (2004) 34 Cal.4th 698, 709.) If a party believes his opponentis using peremptory challenges improperly, he must object in a timely fashion and make a primafacie showingthatthere is a strong likelihood prospective jurors are being excluded becauseoftheir race or group association. (/bid.) If the trial court finds that a primafacie case has been established, the burden shifts and the party whose peremptory challenges are being attacked must then provide a race or group-neutral explanation for each dismissal. (People v. Cash (2002) 28 Cal.4th 703, 724.) Ifa race-neutral reason is offered, the trial court decides whether the complaining party has demonstrated racial discrimination. (/bid.) 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. (People v. McDermott (2002) 28 Cal.4th 946, 970-971; People v. Mayfield (1997) 14 Cal.4th 668, 724; People v. Williams (1997) 16 Cal.4th 635, 662-666.) A trial court’s determination regarding the sufficiency of a prosecutor’s justifications for exercising peremptory challenges is reviewed with great restraint. (People v. Burgener (2003) 29 Cal.4th 833, 864.) “Ifthe trial court makes a ‘sincere and reasoned effort’ to evaluate the nondiscriminatory justifications offered, its conclusionsare entitled to deference on appeal,” and its ruling on the issue is reviewed for substantial evidence. (People v. Johnson (2003) 30 Cal.4th 1302, 1320; People v. McDermott, supra, 28 Cal.4th atp. 13. African-American women constitute a cognizable group for Wheeler purposes. (People v. Cleveland (2004) 32 Cal.4th 704, 734.) 33 971; People v. Alvarez (1996) 4 Cal.4th 155, 196.) In thecaseat bar, the trial court implicitly found that a prima facie case _ of discrimination had been made for each of the Wheeler motions because the court hadthe prosecutorjustify his peremptory challenges.“ (People v. Cash, supra, 28 Cal.4th at p. 723; People v. Jackson (1996) 13 Cal.4th 1164, 1196.) Appellant merely disputes whether the trial court erred whenit determined that the prosecutor’s explanations were persuasive and not a pretext for discrimination. (AOB 63-112.) As will be shown, the court reasonably determined the prosecutor had legitimate, race-neutral reasonsfor challenging the prospective jurors that were the subject of the Wheeler motions. Thetrial court’s decision to deny these motionsis entitled to deference because the court made a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered by the prosecutor and the record contains substantial evidence supportingthetrial court’s denial ofthe motions. (See People v. Jackson, supra, 13 Cal.4th at p. 1198.) For example, the court denied the motionsonly after hearing extensive explanations by the prosecutor, arguments by defense counsel regarding the jurors’ statements, and responses to those arguments by the prosecutor. (RT 1211-1213, 1226-1240.) At one point, the court even allowed the prosecutorto retrieve his notes so that he couldbetter explain his justification for using a peremptory challenge to dismiss ajuror. (RT 1229.) Although the court did not take notes on every juror,it 14. During the first two Wheeler motions, the trial court asked the prosecutor to explain his use of peremptory challenges against the jurors in question. (RT 1211, 1226.) During the third Wheeler motion,the prosecutor immediately explained his use of the peremptory challenge against Jordan before the court could ask for an explanation. (RT 1234.) However, the court subsequently denied appellant’s third Wheeler motionbystating, “And atthis point I will accept [the prosecutor’s] explanation.” (RT 1240.) The court’s statementindicates that it had implicitly found that a prima facie case had been established. 34 noted that many ofthe dismissedjurors wereonits list ofprospective jurors that would likely be dismissed through the use of peremptory challenges. (RT _ 1228.) Thus,the trial court made a sincere and reasoned attempt to evaluate the prosecutor’s explanations. Appellant attempts to avoid this conclusion by arguing that the trial court did not have an independent memory ofthe voir dire and jury questionnaire responses or the demeanorofthe dismissed jurors. (AOB 101.) Although the court admitted that it could not recall Jordan’s responses to the death penalty issues (RT 1239), the court did not rule on the Wheeler motion until after it had heard defense counsel’s argument that the prosecutor improperly dismissed Jordan and the prosecutor’s detailed explanation regarding why he decided to excuse her. (RT 1234-1237.) Moreover, the court clearly had some recollection of the responses and demeanorofthe other dismissed jurors since the court notedthat many of those jurors were onits list ofjurors that would likely be dismissed by the parties. (RT 1228.) Thus, the court’s ruling on the motions is entitled to deference. (See, e.g., People v. Cummings (1993) 4 Cal.4th 1233, 1282.) Appellant further argues that the court did not make a sincere and reasoned attemptto evaluate the prosecutor’s explanations becauseit basedits decision on its observation that African-American women werereluctant to imposethe death penalty. (AOB 101-102, 105.) However, the court repeatedly stated that it was not basing its ruling on this observation. (RT 1239-1240.) Thus, the court’s statement regarding African-American women in no way alters the conclusion that its rulings on the Wheeler motionsare entitled to deference.1! - 15. Appellant also argues that thetrial court’s denial of the motionsis not entitled to deference because it used a defense dismissal of a prospective jurorto justify the prosecutor’s dismissal ofjurors. (AOB 103-104.) However, the court did not state that it was basing its decision on the dismissal of a 35 Moreover, the court’s denials of these motions is supported by. substantial evidencethat the prosecutor had legitimate, race-neutral reasons for _ challenging the prospective jurors. The prosecutor explainedthat he dismissed each of the jurors because they expressed a reluctance to impose the death penalty or their views on the death penalty were unclear. (RT 1211, 1213, 1226-1227, 1229-1231, 1234-1237.) The prosecutor’s explanations were not pretexts because they were amply supported by the record. For example, Reed stated that (1) the death penalty should only be imposed for “cruel murders” where the bodies were burned and mutilated for no reason, (2) she had “never really thought about the death penalty” for “regular murders,” and (3) she did not know whetherlife in prison without the possibility of parole was a more severe punishmentthan the death penalty. (14 Supp. 1 CT 3554; 15 Supp.1 CT3555-3557; RT 389-391.) Cooksie appeared equally reluctant to impose the death penalty, stating (1) that she would vote forlife in prison regardlessofthe evidence,(2) that life in prison was a more severe punishmentthan the death penalty, and (3) that although she “could” impose the death penalty, she “wouldn’t” do so. (21 Supp. 1 CT 5165; RT 214-215, 217-220.) Jordan’s ability to impose the death penalty was also questionable since she did not know whether life in prison was a more severe punishment than the death penalty and couldonly state that she “believe[d]” she could impose the death penalty. (5 Supp. 1 CT 1075; RT 915.) Cooper-Lewis’s and Payton’s views on the death penalty were even more ambiguous since Cooper-Lewisstated that she had not decided whether California should even have a death penalty and Paytonrepeatedly said she had not thought about the death penalty. (10 Supp. prospective juror by the defense. The court merely noted in passing that an African-American juror might have been dismissed by the defense. The fact that the court subsequently asked the prosecutor to explain his use of peremptory challenges showsthatthe trial court wasnotbasing its decision on defense counsel’s use of peremptory challenges. (RT 1211.) 36 1 CT 2470-2472; RT 728-730, 758.) Based on these types of responses,the. prosecutor justifiably dismissed the aforementioned jurors on race-neutral . grounds. (People v. Jackson, supra, 13 Cal.4th at pp. 1196, 1198 [prosecutor properly dismissed juror who expressed reluctance to impose death penalty]; People v. Mayfield (1997) 14 Cal.4th 668, 725-727 [prosecutor couldjustifiably exclude juror because juror was a potential death penalty skeptic]; People v. Arias (1996) 13 Cal.4th 92, 137-139 [dismissal ofjuror was proper because juror had never thought about the death penalty and gave “soft and reluctant responses”during voir dire]; People v. Montiel (1993) 5 Cal.4th 877, 910-911 [prosecutor could properly dismiss juror who expressed indifference to death penalty].) Thus, the trial court reasonably concluded that the prosecutor had valid race-neutral reasons for dismissing the jurors and there is substantial evidence in the record supporting the trial court’s ruling. The trial court properly denied appellant’s Wheeler motions. Appellant argues that the trial court’s denials were erroneous because otherjurors were not excused by the prosecutor even though they gave answers similar to the excusedjurors. (AOB 106.) However, “engaging in comparative juror analysis forthefirst time on appeal is unreliable” and inconsistent with the deference reviewing courts generally give to a trial court’s denial of a Wheeler motion. (People v. Johnson (2003) 30 Cal.4th 1302, 1318; see also People v. Yeoman (2003) 31 Cal.4th 93, 116; People v. Boyette (2002) 29 Cal.4th 381, 422-423.) The dynamics ofjury selection “makeit difficult, if not impossible, on acold record, to evaluate or compare the peremptory challenge of one juror with the retention of another juror which on paper appears to be substantially similar.” (People v. Johnson, supra, 30 Cal.4th at p. 1319.) An attempt to make such an analysis on appeal is “highly speculative andless reliable than a determination by the trial court who witnessed the process by which the defendant’s jury was selected.” (Jbid.) Although this Court has not prohibited 37 comparative juror analysis “outright,”it has also stated, “[W]eare hard pressed to envision a scenario where comparative juror analysis for the first time on . appeal would be fruitful or appropriate.” (/d. at p. 1325.) Thus, because the trial court did not engage in comparative juror analysis, it should not be undertaken here.” Forall of the foregoing reasons,the trial court did not err in denying appellant’s Wheeler motions. Therefore, appellant’s state and federal constitutional rights were not violated by the prosecutor’s use of peremptory challenges. Il. THE TRIAL COURT PROPERLY EXCUSED PROSPECTIVE JUROR GREG REHEIS FOR CAUSE IN LIGHT OF HIS VIEWS REGARDING THE DEATH PENALTY Appellant contendsthe trial court erred by excusing prospective Juror Greg Reheis for cause even though he claimed that he could put aside his personal feelings and imposethedeath penalty. (AOB 113-126.) Respondent submits that the record contains substantial evidence supporting the trial court’s 16. Even if comparative juror analysis were undertaken, appellant could notprevail becausethe prospective jurors that appellant uses for comparisonall indicated they could impose the death penalty. For example, Billy Haley said he could impose the death penalty in “certain kinds of circumstances.” (RT 160-161.) He later added that he believed that he could impose the death penalty “if that’s what I felt was necessary.” (RT 162.) In a similar manner, Willie Jackson stated that he could impose the death penalty if it was “the appropriate thing.” (RT 270-271.) When the prosecutor directly asked if Jackson could imposethe death penalty, Jackson responded, “Yes.” (RT 272.) Lela Bohn also said she could impose the death penalty and stated that she strongly supported a death penalty and had voted for the death penalty in a recent election. (RT 518-521, 523.) Lyle Stoltenberg and Deborah Hubbard also indicated they were willing to impose the death penalty. (RT 361, 548, 552.) | 38 conclusion that prospective Juror Reheis’ views on capital punishment would prevent or substantially impair the performanceofhis duties as a juror. A. Relevant Facts And Proceedings In his jury questionnaire, Reheis stated, “I do not believe the death penalty is morallyjust.” Healso stated “[o]nce is too much” whenaskedifthe death penalty wasused too often. (6 Supp. 1 CT 1282.) Reheis did not believe California should have the death penalty and strongly disagreed that a person should receive the death penalty ifhe intentionally killed another person without legal justification. (6 Supp. 1 CT 1283-1284.) Reheis explainedhis - answerbyreiterating, “Don’t believe in the death penalty.” (6 Supp. 1 CT 1284.) Healso asserted that he would not automatically vote forlife in prison withoutthe possibility ofparole, but admitted that he believed life in prison was a more severe punishment than the death penalty. His views on the death penalty had not changedin ten years. (6 Supp. 1 CT 1285.) During voir dire, Reheis stated that he would not automatically vote for death or life in prison without the possibility of parole and asserted that his personal convictions would not influence his vote regarding either sentence. (RT 984-985.) However, he also admitted that he could not imaginea situation wherehefelt the death penalty would be appropriate, even if the crime was a heinous one. When Reheis was asked why he had previously indicated he could impose the death penalty, he answered, “Well, the way I read the question was that would my personalbeliefs cause me never to be able to render that type of decision. But if you’re asking me myself personally can see that happeningor be agreeableto that, no.” (RT 985.) Despite this answer, Reheis later stated, “I could see myself voting for the death penalty if that’s what the law had dictated.” (RT 986.) When defense counsel explained that the law never dictated that the death penalty 39 must be imposed andthat the decision wasleft to the jury, Reheis said,“Tf it. was completely my option I would not vote for the death penalty.” (RT 986- . 987.) Defense counsel then explained that the law dictated that the “appropriate sentence” be imposed. Reheisthen replied, “I believe I could go with the appropriate sentence.” (RT 987.) He then said that he believed he could impose the death penalty under certain circumstances. (RT 988.) The prosecutor then pointed out that Reheis’ responses on the jury questionnaireindicated a strong disagreement with the death penalty. Whenthe prosecutor asked Reheis how he“could ever vote for the death penalty”in light . of these beliefs, Reheis responded,“The way I would interpret my role here as a juroris not to impose my personalopinionsbut to view the evidence and then go with whatthe dictates were from that point.” The prosecutor noted, “The law is always going to give you an out where you can go to your personal opinion.” Reheis nonetheless assertedthat he did not believe he would always believe the appropriate sentence was life in prison. (RT 989.) He again reiterated that he believed he could impose the death penalty. (RT 989-990.) However, when asked to specify the circumstances under which this would happen, Reheis answered, “I couldn’t tell you at this point under what circumstances. I would haveto be involved in the whole thing. I wouldn’t know.” (RT 990.) The prosecutor subsequently asked Reheis ifhe could imposethe death penalty in this case, and Reheis agreed that he could and responded,“If that’s what everything presented itselfto be, then that would be a decision that I could make.” (RT 992-993.) Whenasked to explain how he could impose the death penalty despite his opposition to it, Reheis stated, Well, I believe that there are certain things that you have personal opinions upon that may not be other people’s opinions or may not be exactly in conjunction with how the law is written or how the law is to be carried out. My opinion of my own judgment process is such that I could look at that objectively and weigh 40 that, surely knowing that there are some prejudices of my own that will enterinto it, but I still feel those prejudices would not be strong enough to sway my decision based upon what was presented in here. (RT 953.) However, Reheis also admitted that on a “personallevel” he did not believe the death penalty was ever an appropriate punishment for someone. (RT 993.) The prosecutor explained that the jury instructions would attemptto “get youto analyze this on a personallevel.” (RT 993.) Whenthe prosecutor again asked Reheis if the appropriate penalty would ever be death, Reheis answered, I don’t understand whattheinstructionsare, . . . if it’s completely up to meorif there are certain instructions when it comes time for that decision that say under these circumstances you would administer or vote for the death penalty and under these circumstances you would vote for the other one. The prosecutor explained that there was “nevera situation whereit’s mandated that you vote for the death penalty .. . . unless you believe personally that it’s an appropriate sentence.” (RT 994.) When the prosecutor then askedifthere was any situation in which Reheis could believe the appropriate sentence was death, Reheis responded, “From a personal point of view .. . I would not believe that the death penalty is appropriate.” (RT 994-995.) Reheis added,“If it is completely up to me then I would say that I would mostlikely vote for the life without possibility of parole if that was the only thing, was my personal opinion, then that’s what I would obviously say.” (RT 995.) Reheis admitted that his opinions on the death penalty would have “some impact”on his ability to impose the death penalty because “that’s part of the decision making process.” (RT 995.) The prosecutor moved to excuse Reheis for cause. (RT 996.) During additional voir dire by defense counsel, Reheis again asserted that he believed he could impose the appropriate sentence despite his opposition to the death penalty. (RT 997-999.) 4] The prosecutor then asked, “No matter what information I putin front. ofyou about[appellant], do you ever think that the appropriate sentenceforthis person... in your own mind is going to be the death penalty?” Reheis responded, “Ona personallevel, no.” (RT 999.) During a sidebardiscussion, the prosecutorstated that he wanted Reheis dismissed for cause because he had “never heard of one who was quite as strong in his views of being anti-death penalty.” (RT 999.) The prosecutor explained that “when we talk about the death penalty we’re talking about a personallevel and a person’s ability to impose the appropriate sentence.” The prosecutor believed that no matter what evidence was presented, Reheis would not see the death penalty as being an appropriate punishment. (RT 1000.) Defense counsel argued that Reheis had indicated he could impose the death penalty. (RT 1000.) The court then asked Reheis ifhe could imposethe death penalty despite his personal beliefs. (RT 1000-1001.) Reheis conceded that his “personal feelings would enter into some judgment process,” but believed that his beliefs would not “change what the appropriate decision should be.” (RT 1001-1002.) Reheis reiterated that he believed he could impose the death penalty “if the evidence was such.” (RT 1002.) The prosecutor stated that he was concerned that there would neverbe any circumstance in which Reheis believed the appropriate sentence was the death penalty. The prosecutor asked if there were “any circumstances”that would cause Reheis to believe that the death penalty was the appropriate punishmentin this case. Reheis answered, “I can’t think ofthose offthe top of my head now.” (RT 1002.) The prosecutor then asked if there were any circumstances that would cause Reheis to believe that the appropriate punishmentfor “any person” would be the death penalty. Reheis answered, “No.” (RT 1003.) However, in answer to a question by defense counsel, Reheis also stated that he believed he could befair and impartial and follow the 42 law. (RT 1004.) During a secondsidebar discussion, the prosecutor argued that Reheis _ had “created a situation that no matter whatI putin front ofhim heis not going to deem that the death penalty is an appropriate sentence under any circumstances.” (RT 1004.) The prosecutor added that Reheis would be “unable to impose an appropriate sentence because the appropriate sentence will never be appropriate to him . . . even if the death penalty happens to be appropriate.” (RT 1005.) The court stated that it believed Reheis wastrying to convince everyone that “he can be very objective and forget his ownfeelings, but his answer keeps coming back to his own convictions. Personally he cannotdoit.” (RT 1005.) The court also believed that Reheis’ response to the prosecutor’s last question madeit “rather clear” that he would neverfind a situation in which the death penalty was appropriate. (RT 1005.) The court granted the prosecutor’s motion to dismiss Reheis for cause over defense counsel’s objection. (RT 1007-1008.) B. The Excusal Of Reheis Was Proper A prospective juror may be excluded for cause if the juror’s views on capital punishment would preventor substantially impair the performanceofthe juror’s duties as defined by the court’s instructions and the juror’s oath. (People v. Harrison (2005) 35 Cal.4th 208, 227; People v. Stewart (2004) 33 Cal.4th 425, 440-441; People v. Heard (2003) 31 Cal.4th 946, 958; see Wainwright v. Witt (1985) 469 U.S. 412, 424, 105 S. Ct. 844, 83 L. Ed. 2d 841.) A prospective juror is properly excludedifhe or sheis unable to consider all of the sentencing alternatives, including the death penalty. (People vy. Stewart, supra, 33 Cal.4th at p. 441; People v. Heard, supra, 31 Cal.4th at p. 958.) In general, the disqualification ofjurors for cause is within the discretion of the trial court and is seldom reversed on appeal. (People v. Haley (2004) 34 43 Cal.4th 283, 306; People v. Jones (2003) 29 Cal.4th 1229, 1246.) A juror’s bias against the death penalty need not be proved with . unmistakable clarity. (People v. Haley, supra, 34 Cal.4th at p. 306; People v. Jones, supra, 29 Cal.4th at p. 1246.) Instead,it is sufficient that the trial court is left with the definite impression that the prospective juror would be unable to faithfully and impartially apply the law. (People v. Haley, supra, 34 Cal.4th at p. 306; People v. Jones, supra, 29 Cal.4th at pp. 1246-1247.) If the juror’s statements are equivocal, ambiguous, or conflicting, the trial court’s determination of the juror’s state of mind is binding on appeal. (People v. Harrison, supra, 35 Cal.4th at p. 227; People v. Stewart, supra, 33 Cal.4th at p. 441; People v. Jones, supra, 29 Cal.4th at p. 1247.) If there is no inconsistency in the juror’s statements, this Court must upholdthetrial court’s ruling if it is supported by substantial evidence. (People v. Haley, supra, 34 Cal.4th at p. 306; People v. Jones, supra, 29 Cal.4th at p. 1246.) In the caseat bar, the trial court properly excused Reheisin light of his _ views on the death penalty. Reheis maintained, on the one hand, that he strongly opposed the death penalty, believed it was not a morally just punishment, and could not conceive of a situation in which he would impose it. (6 Supp. 1 CT 1282-1285; RT 985, 990, 993-995, 999.) At the same time, Reheis also asserted that he could impose the death penalty. (RT 985-987, 989- 990, 992-993, 1001-1002, 1004.) Thetrial court resolved the conflict and determined Reheis could not personally impose the death penalty. Given Reheis’ vacillations and self-contradictions, as well as his moral opposition to the death penalty, thetrial court’s conclusion that he was unfit as a juror must be upheld since it is supported by substantial evidence. (See People v. Harrison, supra, 35 Cal.4th at pp. 227-228 [court properly excused juror who said that “maybe”she could not impose the death penalty andlater said it would be “very, very difficult” but that she could “probably doit”); People v. Haley, 44 supra, 34 Cal.4th at pp. 307-308 [court properly excused potential jurors who. gave contradictory and ambiguous answers regarding the death penalty]; People - v. Navarette (2003) 30 Cal.4th 458, 490 [potential juror’s conflicting statements on death penalty “easily supported”trial court’s decision to removeher for cause]; People v. Jones, supra, 29 Cal.4th at p. 1247 [potential juror’s conflicting statements madetrial court’s determination of the potential juror’s state ofmind binding on appeal]; People v. Welch (1999) 20 Cal.4th 701, 747 [although potential juror stated that he could impose the death penalty, his equivocal response that he did not know when death would ever be an appropriate sentence justified thetrial court’s dismissal ofthe juror for cause].) Reheis’ juror questionnaire and voir dire revealed that he would not impose the death penalty even in the worst cases because he believed it was a morally unjust punishment. (6 Supp. 1 CT 1282-1284.) Reheis repeatedly stated that he could not envision a situation in which the death penalty would be the appropriate sentence. (RT 985, 993-995, 999, 1002-1003.) Such views, respondent submits, substantially impaired his ability to be fair, notwithstanding his equivocations to the contrary. (See People v. Mincey (1992) 2 Cal.4th 408, 457 [trial court was justified in excusing potential juror whostated that there were no conceivable circumstances under which she would vote for death penalty]; People v. Wharton (1991) 53 Cal.3d 522, 588- 590 [trial court did not err in excusing potential juror who did not unequivocally rule out the possibility that he could vote for the death penalty, but his answers indicated he “washolding outonly a theoretical possibility that evidence could be shown which would convince him to vote for death’”’].) Appellant argues that this Court’s decision in People v. Stewart (2004) 33 Cal.4th 425 indicates that the trial court erred in dismissing Reheis. (AOB 121-122.) However, Stewart does not assist appellant. In Stewart, the trial court granted the prosecutor’s challenges for cause against certain potential 45 jurors based solely on their responses on the jury questionnaire. (Peoplev.. Stewart, supra, 33 Cal.4th at pp. 444-445.) This Court held that the trial court _ erred in excluding the prospective jurors based solely on their questionnaire responses. (/d. at p. 445, 451-452.) In so holding, this Court noted that the responses on the jury questionnaires did not give the trial court sufficient information to ascertain whether the potential jurors’ views would prevent or substantially impair the performance of their duties. (/d. at pp. 445-449.) Although the questionnaire responses preliminarily indicated that each potential juror might be challenged for cause, this could not be ascertained without any follow-up questioning; during this examination, the trial court could have further explained the role ofjurors and probed whether each ofthe potential jurors could impose the death penalty. (/d. at p. 449.) In the case at bar, the trial court did allow Reheis to be extensively questioned. During this questioning, Reheis repeatedly gave statements indicating he could not fulfill his role as a juror in this case because he could not personally vote for the death penalty. As this Court in Stewart noted, the trial court’s determination that a prospective juror’s views would substantially impair his or her performance as a juror in the case is entitled to deference. (People v. Stewart, supra, 33 Cal. 4th at p. 451.) That is the case here. Thus, appellant’s claim mustberejected.” 17. Appellant arguesthat, ifthe trial court erred, the guiltjudgment and special-circumstancesfindings should be reversed. (AOB 125-126.) However, decisions by this Court makeit clear that such an error only dictates a reversal of the penalty judgment and not the guilt judgment or special-circumstances findings. (People v. Stewart, supra, 33 Cal.4th at pp. 454-455; see People v. Heard, supra, 31 Cal.4th at p. 966.) Appellant has not “provided any persuasivebasis upon which to reconsiderthat authority or view thetrial court’s error as a ‘structural defect’ that impugned the entire proceeding below.” (People v. Stewart, supra, 33 Cal.4th at p. 455.) Moreover, as will be shown, infra, jurors challenged by the prosecutor were not judged by a different standard than those challenged by the defense. 46 Tit. THE TRIAL COURT PROPERLY EXCUSED PROSPECTIVE JUROR ELIZABETH CHAMPLIN FOR CAUSE IN LIGHT OF HER VIEWS ON THE DEATH PENALTY Appellant contendsthe trial court erred by excusing prospective Juror Elizabeth Champlin for cause. (AOB 127-140.) This argument must be rejected because the record contains substantial evidence supporting thetrial . court’s conclusion that prospective Juror Champlin’s views on capital punishment would prevent or substantially impair her duties as a juror. A. Relevant Facts And Proceedings In her juror questionnaire, Champlin stated that she had “mixed feelings” regarding the death penalty, although she also stated that she did not believe the death penalty was used too often because “people take the death penalty seriously.” (24 Supp. 1 CT 6037.) She did not believe California should have the death penalty, but did believe that the death penalty served as “the ultimate penalty and as a deterrent.” (24 Supp. 1 CT 6038.) She agreed somewhatthat a person should receive the death penalty ifhe intentionally kills another person withoutlegal justification, stating, “I think people should be aware that taking a life may result in losing theirs.” (24 Supp. 1 CT 6039.) She did not believelife in prison withoutthe possibility ofparole was a more severe punishment than death and would not automatically vote for death or life imprisonment. (24 Supp. 1 CT 6039-6040.) During voir dire, Champlin stated that she would not automatically vote for life in prison or death. (RT 645-646.) She reiterated that she had “mixed feelings”regarding the death penalty and explained, “If I were ever to vote for it I would have to be absolutely sure because I know it’s a serious thing. I 47 know it would be a tough thing to do.” She added, “I don’t know. I can’t say. honestly that I wouldn’t never do it.” (RT 646.) She later re-emphasized, “T _ knowit would be a tough decision to make finally whetheror not it would be the death sentenceorlife in prison.” (RT649.) Whenthe prosecutor questioned Champlin about her mixedfeelings, he told her, “Take your time and relax.” Champlin admitted that she wasgetting “nervous.” Champlin said she did not know how to explain her feelings regarding the death penalty. She addedthat she preferredto live in state that did not have the death penalty, andstated, “I didn’t vote for it. I don’t know.” (RT 650.) She said she would not vote for the death penalty if it was on the ballot because she “would prefer not to ever vote for the death penalty atall.” (RT 651.) The prosecutor asked Champlin if she could impose the death penalty on appellant. (RT 651.) Champlin replied, “It would be difficult.” The prosecutor then asked if Champlin’s personal feelings regarding the death penalty would prevent her from being able to impose the death penalty. Champlin answered,“If it came right down to it I probably could.” (RT 652.) However,shortly thereafter, she answered, “Probably not,” when askedif she had the “ability under any circumstances to personally vote for a verdict of death in a jury trial.” (RT 653.) The court then remarked,“You have been asked the question atthis time and you have had time nowto think aboutit. Do you feel that you could oris this a probably not? What kind of an answer would that be?” Champlin replied, “I probably couldn’t.” The court asked Champlin if she could not impose the death penalty regardless of the evidence or the circumstances. Champlin answered, “Thereisstill a part ofmethat thinks that I could but I’m just not certain. I’m really not.” The court then asked, “Would you prefer not to sit on a case in which you have to make that determination?” Champlin 48 responded, “I probably shouldn’t.” (RT 653.) Shortly thereafter, Champlin. began to cry. (RT 654.) The prosecutor challenged Champlin for cause, and defense counsel objected. The prosecutor argued that Champlin had become “emotional” and “began crying during the answers.” He also noted that when he asked her questions, “she sat there for probably 10 or 15 seconds with a distraught look on her face.” The prosecutor added, “I think she was extremely candid when she said she didn’t believe she could.” (RT 655.) The court found that Champlin would be substantially impaired from performingherjob as ajuror in the case and dismissed her for cause. (RT 656.) B. The Trial Court Properly Excused Champlin For Cause Asnoted previously, a prospective juror may be excluded for causeifthe juror’s views on capital punishment would prevent or substantially impair the performanceofthe juror’s duties as defined by the court’s instructions and the juror’s oath. (People v. Stewart, supra, 33 Cal.4th at pp. 440-441.) Ifajuror’s statements are equivocal, ambiguous, or conflicting, the trial court’s determination of the juror’s state of mind is binding on appeal. (/d.at p. 441; People v. Jones, supra, 29 Cal.4th at p. 1247.) In the case atbar, the trial court properly excused Champlin based on her views regarding the death penalty. For example, she maintained that the death penalty servedas “the ultimate penalty andas a deterrent” and somewhat agreed that a person should receive the death penalty ifhe intentionally killed another person without legal justification. (24 Supp. 1 CT 6038-6039.) At the same time, however, she also said she had “mixed feelings” regarding the death penalty, did not believe California should have the death penalty, and would never vote for the death penalty if it was on the ballot. (24 Supp. 1 CT 6037; RT 646, 650-651.) Although she stated that she could impose the death 49 penalty, shealso stated that it wouldbe a “difficult” or tough decision, andlater. stated that she was not certain she could impose the death penalty and that she _ probably could not impose it. (RT 646, 649, 652-654.) Given Champlin’s vacillations and contradictions, the trial court’s conclusion that she was unfit to serve as ajuror must be upheld since it is supported by substantial evidence. (People v. Harrison, supra, 35 Cal.4th at pp. 227-228 [trial court properly excused juror whosaid she could not imposethe death penalty, butlater said that “maybe” she could’”]; People v. Haley, supra, 34 Cal.4th at p. 307 [based on juror’s “admitted inability to impose the death penalty, the trial court properly excused” her]; People v. Griffin (2004) 33 Cal.4th 536, 558-561 [although at somepoint, each prospectivejuror “may havestated or implied that she would perform her duties as a juror,”this did not preventthe trial court from finding, on the entire record, that each nevertheless held views that substantially impaired herability to serve]; People v. Ayala, supra, 24 Cal.4th at p. 275 [becausethe potential juror’s answers were “inconsistent, but included testimonythat she did not think herself capable of imposing the death penalty, weare boundby thetrial court’s determination that her candid self-assessment showed a substantially impairedability to carry out her duty as ajuror]; People v. Welch, supra, 20 Cal.4th at p. 747 [court permissibly excusedjuror whosaid he did not know whetherhe could ever see himself feeling that death was the appropriate sentence].) Appellant concedes that Champlin’s statements were contradictory or equivocaland that this Court’s precedent upholds a dismissal for cause on those grounds. (AOB 127.) However, he argues that the United States Supreme Court’s decisions in Adams v. Texas (1980) 448 U.S. 38, 100 S. Ct. 2521, 65 L. Ed. 2d 581, and Gray v. Mississippi (1987) 481 U.S. 648, 107 S. Ct. 2045, 95 L. Ed. 2d 622,dictate a different result. (AOB 128-140.) These cases do not assist appellant. 50 In Adams, the Supreme Court heldthatthe trial court had impermissibly. excluded potential jurors who indicated they would be affected by deciding _ whether the death penalty should be imposed or who were unable to state whethertheir deliberations would be affected. (Adams v. Texas, supra, 448 U.S. at pp. 49-51.) In Gray, a potential juror stated she could impose the death penalty, but was excusedfor causeafter the prosecutor requested an additional peremptory challenge because he had usedhis allotted perremptory challenges following the trial court’s impermissible denial of his challenges for cause. (Gray v. Mississippi, supra, 481 U.S. at pp. 653-654.) The Supreme Court stated that the excused juror had been qualified to be seated as a juror on the case, noting that “[e]very Justice” of the Mississippi Supreme Court had reached the same conclusion. (/d. at p. 659.) _ Incontrast to the excusedjurors in Adams and Gray, Champlin indicated that she could not impose the death penalty. When askedifshe had the “ability under any circumstancesto personally vote for a verdict of death in ajury trial,” she responded, “Probably not.” (RT 653.) Thetrial court then stated, “You have been asked the questionatthis time and you have had time nowto think about it. Do you feel that you couldoris this a probably not? What kind of answer would that be?” Champlin replied, “I probably couldn’t.” (RT 654.) She also asserted that she “probably shouldn’t”sit as a Juror in the case. (RT 654.) While being asked whether she could impose the death penalty, Champlin appearedto be “distraught” and beganto cry. (RT 654-655.) In light ofthese responses, as well as Champlin’s emotionalstate, the court reasonably concluded, based on Champlin’s concerns, that she was substantially impaired in her ability to serve as a juror in this case. (People v. Griffin, supra, 33 Cal.4th at p. 559; People v. Ayala, supra, 24 CalAth at p. 275.) The record, as summarized above, supports this conclusion. Thus, appellant’s claim must be rejected. 51 IV. APPELLANT FAILED TO PRESERVE THE ISSUE REGARDING THE TRIAL COURT’S DENIAL OF HIS CHALLENGE FOR CAUSE AGAINST PROSPECTIVE JUROR RICHARD COON; MOREOVER, THE TRIAL COURT PROPERLY DENIED THE DEFENSE CHALLENGE FOR CAUSE AGAINST COON Appellant contendsthat the trial court erred when it deniedhis challenge for cause against Prospective Juror Richard Coon. (AOB 141-148.) This argument must be rejected because appellant did not preserve the issue below and because Coon’s viewson capital punishment would nothave substantially impaired the performanceofhis duties as a juror. A. Relevant Facts And Proceedings In his jury questionnaire, Richard Coonstated that he was in favor ofthe death penalty if a person “willingly”took a life “for any reason other thanself defense, mental instability, in defense of another, etc.” He believed that “we’re too lax on the death penalty” and that the only wayto deter violent crime was to “make the consequences very un-appealing.” (4 Supp. 1 CT 968.) He strongly agreed that a person should receive the death penalty ifhe intentionally killed another person without legal justification. (4 Supp. 1 CT 970.) However, Coon would not automatically vote for the death penalty orlife in prison. (4 Supp. 1 CT 970-971.) He stated that he did not know whetherlife in prison without parole was a more severe punishment than the death penalty. (4 Supp. 1 CT 971.) During voir dire, Coon reiterated that he would not automatically vote for life in prison or the death penalty. (RT 945.) Defense counsel subsequently discussed Coon’s statement on the jury questionnaire that he was in favor of imposing the death penalty on those who willingly take a life for any reason 52 other than self-defense, defense of others, or mental instability. Defense counsel asked,“So if you were a juror would you then automatically vote for _ the death penalty if it wasn’t one of thosesituations?” Coonreplied, “No, I would not. There are other circumstances. I think the judgecalled it mitigating circumstances.” (RT 946.) Coon said he would “lean in favor” of the death penalty, but would not automatically impose it if he determined that the aggravating factors outweighed the mitigating factors. (RT 947-948.) Coon subsequently stated that he would impose the death penalty if the aggravating circumstances outweighed the mitigating circumstances. When askedif he would do so automatically, Coon replied, “I believe I would, yes.” (RT 948- 951.) He also stated, “[U]ntil I’m putin that position I can’t honestly say what I would do at that momentbut I would befair, as fair as I could be in my own eyes.” (RT 948.) Defense counsel challenged Coon for cause. (RT 951.) The prosecutor asked Coonifhe could imposelife in prison without the possibility ofparole if he believed that was the appropriate punishment. Coon answered, “Yes, I could.” Coonalso stated that he could imposea life sentence ifhe believed the sentence was appropriate, despite the fact that the aggravating circumstances outweighedthe mitigating circumstances. (RT 951.) The prosecutor explained that the jury wasfirst to decide whether the aggravating circumstances substantially outweighed the mitigating circumstances. Ifthey did,thejury then had to impose the appropriate penalty. Coon once again reiterated that, even if the aggravating circumstances substantially outweighed the mitigating circumstances, he could impose life sentence if he thoughtit was the appropriate penalty. (RT 952-953.) During further voir dire, defense counsel noted that Coon had previously stated he would automatically vote for the death penalty in any case in which the aggravating circumstances substantially outweighed the mitigating circumstances. Coon responded,“I retract that,” and noted that the prosecutor’s 53 comments had madetheissue “a little more clear.” (RT 956.) Defense counsel again movedto dismiss Coon for cause, explainingthat _ Coon said he would automatically vote for the death penalty when the aggravating circumstances outweighed the mitigating circumstances. (RT 957.) Although Coonlater retracted his statements, defense counsel believed that the prosecutor had led him to do so. (RT 958.) The court denied defense counsel’s motion. (RT 960.) Coon was subsequently placed in the jury box as one ofthe 12 potential jurorsin the case. (RT 1188.) Although defense counsel had peremptory challengesavailable to him at that time, he did not use one to excuse Coon and instead exercised 13 peremptory challenges before accepting the jury. (RT 1188, 1199-1201, 1209- 1210.) Thereafter, he exercised four more peremptory challenges before accepting the jury. (RT 1213, 1224-1225, 1232.) He then exercised two additional peremptory challenges before the jury wasfinally selected with Coon as one ofthe jurors. (RT 1232, 1240; CT 267.) B. Appellant Failed To Properly Preserve His Claim Regarding His Challenge To Coon; Moreover, The Trial Court Properly Denied Appellant’s Motion If a defendant contendsthetrial court wrongly denied a challenge for cause, he mustestablish that he exercised a peremptory challenge to remove the juror in question, exhausted his peremptory challengesor justified the failure to do so, and communicatedto thetrial court his dissatisfaction with the jury as selected. (People v. Horning (2004) 34 Cal.4th 871, 896; People v. Maury (2003) 30 Cal.4th 342, 379.) In this case, appellant did not adequately preservehis claim regardinghis challenge to Coon. Although appellant had peremptory challenges available to him when Coonwasplaced on the jury, he did not use any of them to dismiss Coon. Instead, he subsequently exercised 19 peremptory challenges against 54 other potential jurors. (RT 1188, 1199-1201, 1209-1210, 1213, 1224-1225, 1232, 1240.) Appellantalso failed to communicate his dissatisfaction regarding | the jury to thetrial court. (RT 1249-1252.) Thus, appellant has waived any claim of error. (See People v. Maury, supra 30 Cal.4th at pp. 379-380.) Assuming arguendothat the claim has not been waived, appellantstill is unable to prevail. Coonstated that he believed the death penalty was an appropriate punishmentin certain circumstances. (4 Supp. 1 CT 968, 970-971.) Healso stated that he would not automatically vote for the death penalty and that he would consider the mitigating factors in determining whetherlife in prison or the death penalty was the appropriate sentence. (RT 945-948.) Although Cooninitially stated that he would automatically impose the death penalty if the aggravating circumstances outweighed the mitigating circumstances (RT 948-951), he subsequently stated that he could imposelife in prison without the possibility of parole if he believed the sentence was appropriate, even if the aggravating circumstances outweighedthe mitigating circumstances. (RT 951.) When the prosecutor further explained the penalty phase process, Coon again reiterated that he could imposea life sentence even ifthe aggravating circumstances outweighed the mitigating circumstances. (RT 952-953.) When defense counsel noted that Coon had previously stated he would automatically vote for the death penalty if the aggravating circumstances outweighed the mitigating circumstances, Coonclarified, “I retract that” and stated that the prosecutor’s explanations had made the issue “a little more clear.” (RT 956.) In light of Coon’s statements that he could imposea life sentence, even whenthe aggravating circumstances outweighed the mitigating circumstances, and would consider the mitigating circumstances, the trial court acted properly whenit denied appellant’s challenge for cause. (See People v. Horning, supra, 34 Cal.4th at pp. 897-898 [although potential juror said things that would have supported granting a challenge for cause, appellate court must 55 deferto trial court’s denial because statements byjuror were contradictory and. equivocal]; People v. Weaver (2001) 26 Cal.4th 876, 911-912 [trial court _ permissibly denied challenge for cause because potential juror retracted his “rigid position”that he would automatically vote for the death penalty]; People v. Cunningham (2001) 25 Cal.4th 926, 976-977, 979 [althoughpotential jurors indicated a slight preference for the death penalty,the trial court did noterr in denying challenges for cause becausethe jurors did notindicate “an unalterable preference in favor of the death penalty” and stated they would vote as the circumstances of the case warranted].) Appellant argues that the trial court imposed a “different, higher standard” on the defense challenges for cause than on the prosecutor’s challenges for cause. (AOB 146-148.) However,there is nothing to indicate that the trial court imposed an erroneous standard when determining whether to grant or deny appellant’s challenge for cause against Coon. As shown above, the trial court’s denial of the challenge against Coon was proper. Moreover, the trial court’s statement during voir dire regardingAfrican- American women does not in any way indicate that the court used a higher standard in assessing appellant’s challenge for cause and does not even logically relate to the issue. Thus, the trial court did not err in denying appellant’s challenge to Coon. 56 V. THE TRIAL COURT HAD NO DUTY TO GIVE A LIMITING INSTRUCTION AT THE GUILT PHASE REGARDING THE GUILTY PLEAS OF APPELLANT’S ACCOMPLICES, LINTON, CYPRIAN, AND LEE; MOREOVER, THE INSTRUCTIONS GIVEN WERE ADEQUATE Linton, Cyprian, and Lee were charged with the crimes committed in this case; the three men eventually pled guilty and testified in appellant’s case. (RT 1706, 1711, 1779, 2779-2781, 2869, 2871.) Appellant contendsthetrial court violated his constitutional rights when it failed to give a limiting instruction at the guilt phase informingthe jury that the guilty pleas of Linton, Cyprian, and Lee could not be usedto infer appellant’s guilt. (AOB 149-157.) This argumentmust be rejected becausethetrial court had no duty to give such a limiting instruction. Moreover, the instructions given bythetrial court were adequate. A. Relevant Facts And Proceedings During the prosecution’s case-in-chief, Linton testified on direct examination that he was incarcerated at Folsom state prison and was serving a term of 15 years to life for convictions of second-degree robbery and second- degree murder. (RT 1541-1542.) During cross-examination, Linton admitted that he had been charged with two countsoffirst-degree murder for the murders of Barron and Thomas. (RT 1706, 1711.) Lintontestified that his case went to trial. When defense counsel asked what verdict had been reached, the prosecutor objected on relevance grounds. (RT 1711.) During sidebar discussion, the parties explained that a jury had convicted Linton, but that a mistrial had been declared due to juror misconduct. Defense counsel argued that the prosecutor should have expected that Linton would have been 57 convicted in any subsequentretrial. Therefore, “there had to be a reason” why. the prosecutorinstead decided to offer Linton a plea. (RT 17112-1718.) The . court sustained the objection and instructed counselto “Tg]et to your point and go from there.” (RT 1718.) Linton thentestified that whenhe entered into his guilty plea, he understood that the prosecutor might ask him to testify in appellant’s case but that he was not required to do so. (RT 1719.) Lintondid not believe that he couldreceive lenient treatment from the parole board if he testified against appellant. (RT 1719.) In the prosecutor’s case-in-chief, Dauras Cyprian testified on direct examination that he had previously been convicted pursuant to a guilty plea. (RT 1779.) He subsequently testified that he had been sentencedto state prison for 16 years to life and that his testimony would cause him problemsin prison. (RT 1884-1885.) Dino Lee wascalled as a defense witness. (RT 2721.) During direct examination, he testified that he had originally been charged with two counts offirst-degree murder and second-degree robbery. (RT 2779.) Lee eventually pled guilty to one count of second-degree murder and one count of second- degree robbery. Part of the plea agreement was that Lee wouldtestify against appellant and the others involved in the crimes. (RT 2780-2781.) Defense counsel and the prosecutorstipulated in the presenceofthe jury that Lee entered a guilty plea on July 9, 1990; Lintonentered a guilty plea on January 23, 1991; and Cyprian entered a guilty plea on January 24, 1991. (RT 2869, 2871.) The jury was subsequently instructed with CALJIC No. 2.20, which stated that in determining a witness’ credibility the jury could consider “[t]he existence or nonexistence ofa bias, interest, or other motive,” as well as any prior felony convictions of the witness. (CT 316-317; RT 2937-2938.) The jury was also instructed with CALJIC No.2.23, which stated 58 The fact that witness has been convicted of a felony, if such be a fact, may be considered by you only for the purpose of determining the believability of that witness. The fact of such a conviction does not necessarily destroy or impair a witness’ believability. It is one of the circumstances that you may take into consideration in weighing the testimony of such a witness. (CT 321; RT 2939.) | The jury was further instructed that an accomplice was a person who wassubject to prosecution for the offenses charged in this case (CALJIC No. 3.10) and that a “defendant cannot be found guilty based upon the testimony of an accomplice unless such testimony is corroborated by other evidence which tends to connect such defendantwith the commissionofthe offense” (CALJIC No. 3.11). (CT 332-333; RT 2944-2945.) Subsequentinstructions described the sufficiency of the evidence needed to corroborate an accomplice (CALJIC No. 3.12) and stated that one accomplice could not corroborate another accomplice (CALJIC No. 3.13). (CT 334-335; RT 2945-2946.) The instructions further stated that “[t]he testimony of an accomplice ought to be viewedwith distrust” (CALJIC No. 3.18). (CT 337; RT 2946.) During closing argument, the prosecutor stated, “What does Patrick Lintontell you? I was there. I did this. I took part in it. I’m doinglife because of it. But I didn’t kill anybody.” (RT 2974.) The prosecutorlater stated that it was difficult for Lee, Linton, and Cyprian to testify because “[t]his isn’t somethingthat is a good thing to do. It is not an easy thing to do. You mayget killed for doing this. They all know that.” (RT 2975.) B. The Trial Court Had No Duty To Give A Limiting Instruction And TheInstructions Given Were Adequate Appellant contends the trial court should have given a limiting instruction that informed the jury that the guilty pleas of Linton, Cyprian, and Lee could not be used to infer appellant’s guilt. (AOB 149-157.) However, 59 trial courts do not have a sua sponte duty to give such limiting instructions.. (See People v. Hernandez (2004) 33 Cal.4th 1040, 1051; People v. Horning, . supra, 34 Cal.4th at p. 909; People v. Clark (1992) 3 Cal.4th 1, 131; People v. Griggs (2003) 110 Cal.App.4th 1137, 1139; People v. Wooten (1996) 44 Cal.App.4th 1834, 1850.) In the case at bar, appellant never requested such a limiting instruction and specifically stated, “The defense is satisfied with the presentset ofinstructions.” (RT 2881-2893, 2929-2930.) Asa result, no such limiting instruction was required. Despite his failure to request a limiting instruction,appellant argues that such an instruction was constitutionally required pursuant to Douglas v. Alabama (1965) 380 U.S. 415, 85 S.Ct. 1074, 13 L Ed.2d 934, Lee v. Illinois (1986) 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514, and Hudson v. North Carolina (1960) 363 U.S. 697, 80 S.Ct. 1314, 4 L.Ed.2d 934, (AOB 150-151.) However, these cases donot assist appellant because they involve completely different factual scenarios. For example, Douglas is unhelpful to appellant’s claim because it dealt with a defendant’s inability to cross-examine a key prosecution witness abouthis out-of-court confession. (Douglas v. Alabama, supra, 380 U.S.at pp. 416-420.) Lee is equally inapposite becauseit concerned the use of an out-of-court confession by an accomplice” (Lee v. Illinois, supra, 476 U.S. at pp. 538, 541-542, 546.) Although the United States Supreme Court in Hudson did indicate that a codefendant’s plea in front ofthe jury can be prejudicial, the case actually dealt with the denial ofthe assistance of counsel. (Hudson v. North Carolina, supra, 363 U.S.at pp. 702-704.) Thus, 18. Appellant may be attempting to argue by analogythatthe pleas by his accomplices were similar to confessions made by co-perpetrators that implicate the co-perpetrators as well the defendant. However,the guilty pleas merely told the jury that each accomplice had admitted his guilt in the matter and did not implicate appellant. (People v. Young (1978) 85 Cal.App.3d 594, 604 fn.3.) 60 the United States Supreme Court cases cited by appellant do notdictate that a. limiting instruction was required in this case. The federal appellate cases cited by appellant (AOB 152-153)also fail to buttress his argument. First, decisions by the federal appellate courts are not binding on this Court. (People v. Seaton (2001) 26 CalAth 598, 653.) Moreover, the premise underlying the federal appellate cases does not apply to this case. According to appellant, these cases seek to ensure that evidence regarding pleas submitted by the prosecutor cannot be misused by the jury. (AOB 151-152.) For example, in United States v. Halbert (9th Cir. 1981) 640 F.2d 1000, 1004, whichis cited extensively by appellant (AOB 152-153), the codefendants testified against the defendant and were asked by the prosecutor during direct examination about their guilty pleas. Over a defense objection, both of the codefendants were allowed to testify that they had pled guilty. (Ibid.) The Ninth Circuit held that although there may be manyproper reasons to admit such evidence,the trial court erred by failing to give an instruction limiting the evidence to witness credibility. (/d. at p. 1006.) Here, in contrast, appellant did not object to the admission of the evidenceregardingthe pleas, and evenelicited such evidence from Lee during the defense portion of the case. (RT 2779-2781.) Moreover, appellant also requested andreceived stipulation from the prosecutor regarding the dates of Lee’s, Linton’s, and Cyprian’s guilty pleas. (RT 2869, 2871.) Thus, appellant was apparently attempting to use the pleas to his advantage. Therefore, a limiting instruction may not have been warranted or appropriate. Assuming arguendo that such an instruction was required, appellant cannot prevail because the jury was adequately instructed. The jury was specifically told that “[t]he fact that a witness has been convicted of a felony] ... may be considered by you only for determining the believability of that witness.” (CT 321; RT 2939 [emphasis added].) The jurors were further 61 instructed that testimony by accomplices neededto be corroborated and should. be viewed with distrust. (CT 333-335, 337; RT 2945-2946.) Thus,the jjury / was given sufficient limiting instructions.2 In the event such instructions were not adequate, appellant’s argument muststill be rejected because any error was harmless beyond a reasonable doubt. (People v. Young, supra, 85 Cal.App.3d at p. 602.) Here, any error was harmless because the prosecutor did not rely on the pleas as evidence of appellant’s guilt, and the evidence ofthe pleas was only a minuscule portion of each accomplice’s testimony. Although the prosecutor did refer briefly to Linton’s plea during closing argument (RT 2974), the pleas were notreferred to again in the prosecutor’s closing argumentorrebuttal. Moreover,the jurors wereinstructedthat prior convictions could only be used to determine witness credibility and that the testimony of any accomplices had to be viewed with distrust and corroborated with evidence other than the testimony of another accomplice. (CT 321, 333-335; RT2939, 2945-2946.) In light of the minor nature of the evidence and the jury instructions, any error was necessarily harmless. The length of deliberations or the questions asked by the jury do not alter this conclusion. The jury questions in no way involvedthe pleas by the accomplices, and the six hours spent in deliberations was in no way extraordinary in a complicated death penalty case involving multiple charges, numerouswitnesses, and 11 days oftestimony. (CT 268-271, 290-296.) Thus, appellant’s claim must berejected. 19. Because the jury instructions were adequate,there was noviolation of appellant’s right to a reliable sentence under the Eighth Amendment. (See People v. Cole (2004) 33 Cal.4th 1158, 1193, fn. 5.) 62 VI. THE TRIAL COURT PROPERLY LIMITED DEFENSE COUNSEL’S CROSS-EXAMINATION OF LINTON Appellant contendsthetrial court violated his constitutional rights when it limited defense counsel’s cross-examination of Linton. (AOB 158-168.) This argument must be rejected because the trial court acted properly in preventing defense counsel from asking about largely irrelevant details regarding Linton’s case. A. Relevant Facts And Proceedings During cross-examination, Linton admitted that he had been charged with two counts offirst-degree murder for the murders ofBarron and Thomas. (RT 1706, 1711.) When defense counsel asked Linton to specify the verdict that had been reachedin his case, the prosecutor objected on relevance grounds. (RT 1711.) Thetrial court initially sustained the prosecutor’s objection. (RT 1712.) During a sidebar discussion, defense counsel argued that he wanted to show that Linton had a motive to lie in appellant’s case because Linton understood when he pled guilty that he could be asked to cooperate in appellant’s trial. Counsel also wanted to show that the prosecutor had obtained a first-degree murder conviction in Linton’s case, but that a mistrial had been declared after the verdict. Thus, the prosecutor should have expected Linton to be convicted during a retrial, which meant there “had to be a reason”the prosecutor’s office agreed to a second-degree murderpleajustprior to the start ofjury deliberations in Linton’s retrial. Counsel wanted to demonstrate that there was an “implied understanding”that ifLinton “cooperated in the future,” he could obtain a plea bargain for a second-degree murder conviction. (RT 1712-1715, 1717) 63 The prosecutor explained that there had been a mistrial during Linton’s. first trial because ofjury misconduct. (RT1713.) The prosecutor further noted . that he had made no promises to Linton and that Linton had “no expectations of anything.” Instead, the prosecutor had “made it clear” that Linton would “set the deal with or withouttestifying” against appellant. (RT 1713-1714.) The prosecutor addedthat“it was stated clearly in the plea that his offer of 15 to life was independent of anything he choseto do later.” (RT 1714.) Defense counsel stated that he wantedto elicit testimony that there was an understanding that if the prosecutor wanted Linton’s cooperation in the future, Linton could decide whether he wanted to cooperate. The trial court responded, “That’s fine. But I would ask that you get to that because once you get to the first degree murderandit was nullified, we haveto get to everything else, about jury misconduct and why.” The court stated that defense counsel could ask Linton about his understanding ofwhat was expected ofhim,butthe court cautioned, “I don’t want to open the door to the other because then somehow it’s going to have to be explained to the jury. I cannot leave them with the inference.” (RT 1716.) Counselreiterated that he wanted to show that Linton “must have done something” to convince the prosecutor to accept a plea for second-degree murder after Linton had already previously been convicted of first-degree murder. (RT 1717.) The court noted that counsel was “speculating on great deal” and added, “You are putting before the jury that they did this and they convinced the D.A. to offer second degree, and that is your inference.” (RT 1717.) The court later reiterated that it would allow questioning regarding whether Linton believed he had to cooperate with the prosecution, but added, “I cannot have you put something before the jury thatis clearly not necessarily the case and leave an inference here so you’ve got this to argue. I cannot allow that.” (RT 1718.) The court later ruled, “Get to your point and go from there, 64 but the objection will be sustained as far as your leaving an inference in front of the jury as to something that cannot be explained.” (RT 1718.) Defense counsel then asked Linton if he had “some sort of understanding orbelief” that the prosecution could ask him totestify against appellant. (RT 1718-1719.) Linton responded that when he enteredinto his plea, he understood that the prosecutor might ask him to testify in appellant’s case but that he wasnot required to do so. (RT 1719.) Linton did not believe that he could receive lenient treatment from the parole board if hetestified against appellant. (RT 1719-1720.) B. The Trial Court Properly Limited The Cross-Examination Of Linton The Sixth Amendmentguaranteesthe right of a criminal defendantto be confronted by the witnesses against him and to cross-examine those witnesses. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678, 106 S.Ct. 1431, 89 L.Ed.2d 674; Davis v. Alaska (1974) 415 U.S. 308, 315, 94 S.Ct. 1105, 39 L.Ed.2d 347.) In general, “a defendantis entitled to explore whether a witness has been offered any inducements or expects any benefits for his or her testimony, as such evidenceis suggestive ofbias.” (People v. Brown (2003) 31 Cal.4th 518, 544; see People v. Williams (1997) 16 Cal.4th 153,207.) Thus, a criminal defendant states a violation of the Confrontation Clause by demonstrating that he was prohibited from engaging in appropriate cross- examination designed to show such bias and thereby exposethejury to facts they could use to draw inferences relating to the reliability of that witness. (People v. Hillhouse (2002) 27 Cal.4th 469, 494; People v. Frye (1998) 18 Cal.4th 894, 946.) However, this does not mean that the Confrontation Clause prevents the trial court from imposing any limits on a defendant’s inquiry into the possible 65 biases of a prosecution witness. (People v. Willliams, supra, 16 Cal.4th at p.. 207; People v. Cooper (1991) 53 Cal.3d 771, 816-817; see also People v. . Hillhouse, supra, 27 Cal.4th at p. 494.) Rather, the trial courts retain “wide latitude” to impose reasonable limits on such cross-examination based on concerns regarding harassment, undue consumption of time, prejudice, the confusion of issues, witness safety, or interrogation that is repetitive or marginally relevant. (People v. Hillhouse, supra, 27 Cal.4th at p. 494; People v. Carpenter (1999) 21 Cal.4th 1016, 1051; see People v. Brown, supra, 31 Cal.4th at p. 545.) Unless a defendant can demonstrate that the prohibited cross-examination “would have produceda significantly different impression” ofthe witness’ credibility, the trial court’s limitation on cross-examination does not violate the Sixth Amendment. (People v. Brown, supra, 31 Cal.4th at pp. 545-546; People v. Hillhouse, supra, 27 Cal.4th at p. 494.) In the caseat bar,the trial court did not violate appellant’s constitutional rights underthis standard. Thetrial court allowed defense counsel to question Linton regarding his plea to second-degree murder and whether Linton expected any kind of benefit for his testimony in appellant’s case. (RT 1706, 1711, 1718-1720.) The court merely prevented counsel from questioning Linton regarding the prosecutor’s motives in offering Linton a plea bargain. This was proper because counsel’s theory that the “reason” the prosecution agreed to a plea bargain for second-degree murderafter a jury verdictforfirst- degree murder wasto ensuretestimony against appellant was basedon nothing more than speculation and, thus, any questioning in this area would have had minimal probative value. Moreover, the questions would have required considerable additional testimony regarding the reasons for the initial mistrial in Linton’s case, as well as the reason the prosecution agreed to a second- degree murderplea. This would have resulted in an undue consumptionoftime and would have hadlittle, if any, relevance to appellant’s case. For these 66 reasons, appellant has failed to demonstrate that the jurors would have had a significantly different impression of Linton’s credibility had he been allowed to pursue his proposed line of questioning.(See, e.g., People v. Brown, supra, 31 Cal.4th at pp. 542-546[trial court properly prevented defendant from asking witness about pending rape case]; People v. Carpenter (1999) 21 Cal.4th 1016, 1050-1052 [trial court did not violate defendant’s constitutional rights by prohibiting defendant from asking witnessif she was on probation]; People v. Harris (1989) 47 Cal.3d 1047, 1090-1091 [trial court did not abuse its discretion in preventing defendant from delving into witness’ pendingcase]; cf. People v. Memro (1995) 11 Cal.4th 786, 868 [trial court’s ruling did not prejudice defendant because any favorable inference he sought was merely speculative].) Assumingarguendothatthetrial court did erroneously limit the cross- examination of Linton, the error was harmless beyond a reasonable doubt. (Delaware v. Van Arsdall, supra, 475 U.S.at p. 684; People v. Brown, supra, 31 Cal.4th at p. 546.) Here, any error was harmless because Linton’s testimony waslargely corroborated by the testimony of Cyprian,as well as the testimony ofLee, a defense witness. (RT 1771-1774, 1780, 1786-1787, 1789, 2723-2725, 2758-2759.) As the prosecutor also noted, there was also “a wealth of evidence”in addition to Linton’s testimony,that linked appellant to the murders ofBarron and Thomas. This included appellant’s out-of-towntravels after the murders, the telephone records showing calls made to A.R.A., and the cell phone and fingerprints found at the crime scene. (RT 4145.) Moreover, defense counsel was allowed to ask Linton about his conviction for second- degree murder and whether he expected any kind of benefit fortestifying, 20. Becausethetrial court did not err, this Court should also reject appellant’s claim (AOB 167) that the alleged error violated the right to a reliable sentence under the Eighth Amendment. (See People v. Cole, supra, 33 Cal.4th at p. 1210, fn. 13; People v. Weaver (2001) 26 Cal.4th 876, 973.) 67 thereby raising the inference that Linton had a motivation for testifying favorably for the prosecution. (RT 1718-1720.) Thus, even ifthe trial court erred, appellant’s claim muststill be rejected. Vil. APPELLANT DID NOT PRESERVE HIS CLAIM REGARDING THE ALLEGED PROSECUTORIAL MISCONDUCT IN GUILT PHASE CLOSING AND REBUTTAL ARGUMENTS; IN ADDITION, THE PROSECUTOR’S CLOSING AND REBUTTAL ARGUMENTS WERE PROPER Appellant argues that the prosecutor committed misconduct during the guilt phase by giving closing and rebuttal arguments that denigrated defense counsel. (AOB 169-174.) Respondent submits that the appellant failed to preserve the issue and that, in any event, the prosecutor’s arguments were proper. A. Relevant Facts And Proceedings Near the beginningofhis guilt phase closing argument, the prosecutor stated, I gave a lot of thought on how to proceed in my closing argument. I had a hard timesleeping last night because part of me really wants to come in here and attack the defense for the methods which they used to try and mislead you, deceive you, give youfalse insinuations. And I started by writing outall the things that he had done from the beginning in his opening statement, from the defendant, all the way back to when he started trying to falsify evidence. . AndI decidedthat’s not the way to proceed in this case. See, my obligation here is trying to present the truth to the jury. The prosecutor stated that he would instead “focus on the case which I presented.” (RT 2965.) 68 The prosecutor later stated that the “position of the defense is whoever wasat this crime sceneis guilty of murder and robbery. That’s whatit’s been since the beginning. And his defense, when he stood up in opening argument is, my client wasn’t there.” The prosecutor noted, “He says his client wasn’t there. I say he’s lying.” (RT 2966.) The prosecutor then discussed the evidence linking appellant to the murders. (RT 2966-2994.) During the defense portion of closing argument, defense counsel stated that the telephone records for the phonein the upstairs apartment showedthat no telephonecalls were made “after the afternoon from that phone.” When the prosecutor objected that counsel was misstating the evidence, defense counsel argued, “You can look at the documents yourself and read them to yourself... .” He added, “But what I’m suggesting to you is the documents that I have, that I have seen nothing to indicatethatthe last call from that house phone was in the middle of the afternoon. Check on that when you go over those records.” (RT 3077.) During rebuttal argument, the prosecutorstated that he would comment on certain points made by defense counsel during the defense portion of the closing arguments. The prosecutorthenstated, I am going to jump forward because the deception continues. It’s not something that starts and stops. It started before [appellant] was ever arrested. It’s continued as a perversion through this entire system, and it continued through closing argument. And as an absolute exampleofthat, not only all the times he misstated the evidence, but when you look through the phone records at 11017 South Spring and he says no phonecalls after the morning hours, early, early in the afternoon, remember Dauras Cypriansaid,“I called Cee Cee that night while we were up in the apartment on January 2nd before the shooting.” January 2nd, 9:05 p.m., the call to Moreno Valley when hecalled Cee Cee. This isn’t made up. Noneofthis is. This is what happened. 69 (RT 3084.) The prosecutornoted that defense counsel and appellant could not “change the phone records. He can’t deceive the phone records. He can’t manipulate them. He can’t confuse them.” (RT 3084.) B. Appellant’s Claim Must Be Rejected To preserve a claim of prosecutorial misconduct, a criminal defendant must make a timely objection and ask the trial court to admonish the jury to disregard the improper behavior of the prosecutor. (People v. Monterroso (2004) 34 Cal.4th 743, 785; People v. Cole (2004) 33 Cal.4th 1158, 1201.) In this case, appellant did not object to the alleged misconduct by the prosecutor and did not request any such admonitions. Consequently, he has waivedhis claim ofprosecutorial misconduct. (See People v. Hillhouse (2002) 27 Cal.4th 469, 501; People v. Medina (1995) 11 Cal.4th 694, 758.) Even if there was no waiver, appellant’s claim must be rejected. Improper remarks by a prosecutor during closing or rebuttal argument can violate due process if the remarks infect the trial with such unfairness that the resulting conviction is a denial of due process. (People v. Monterroso, supra, 34 Cal.4th at p. 785; People v. Cole, supra, 33 Cal.4th at p. 1202.) A prosecutor’s misconductviolates state law if it involves the use ofdeceptive or reprehensible methods to persuade the jury. (People v. Monterroso, supra, 34 Cal.4th at p. 785; People v. Cole, supra, 33 Cal.4th at p. 1202.) Whenevaluating a claim of prosecutorial misconduct based on the prosecutor’s statements to the jury, the issue is whether there is a reasonable likelihood that the jury construed or applied any of the allegedly improper remarksin an objectionable manner. (People v. Monterroso, supra, 34 Cal.4th at p. 785; People v. Cole, supra, 33 Cal.4th at pp. 1202-1203.) Although a prosecutor may not attack the integrity of opposing counsel, he has wide latitude to discuss and draw inferences from the evidencepresentedattrial and 70 to describe the deficiencies in defense counsel’s tactics and accountofthe facts. (See People v. Bemore (2000) 22 Cal.4th 809, 846; People v. Welch (1999) 20 Cal.4th 701, 752-753.) Moreover, in addressing a claim of prosecutorial misconduct that is based on the alleged denigration of defense counsel, an appellate court reviews the prosecutor’s comments in relation to the remarks of defense counsel and determines whetherthe formeris a “fair response”to the latter. (People v. Frye (1998) 18 Cal.4th 894, 978.) In the case at bar, there is no reasonablelikelihood that thejury construed the prosecutor’s remarks as impugning defense counsel’s integrity. In context, the prosecutor’s initial statements during closing argument were proper because they merely urged the jury to focus on the relevant evidence and pointed out that the defense was attempting to confuse the issues in the case. (People v. Hillhouse, supra, 27 Cal.4th at p. 502; People v. Cummings (1993) 4 Cal.4th 1233, 1303 fn. 49.) For example,the prosecutor stated during closing argument that he had initially planned to discuss how the defense was attempting to create confusion and how the defendant had tried to falsify evidence, but had instead decided to “focus on the case which I presented.” (RT 2965.) This statement cannot reasonably be characterized as an attemptto impugn the integrity of opposing counsel and can only be understood as cautioning the jury to rely on the prosecution’s evidenceofguilt rather than the defense evidence. (See People v. Cummings, supra, 4 Cal.4th at p. 1303 fn. 47.) Indeed, this Court has found a prosecutor’s argumentto be proper even whenthe prosecutor has argued that defense counsel’s argument wasincorrect, speculative, and misleading; has asserted that the defense was trying to “create somesort of a confusion”; and hasstated that an experienced defense attorney will “twist a little, poke little, try to draw somespeculation,try to get you to buy something.” (See, e.g., People v. Hillhouse, supra, 27 Cal.4th at p. 502; People v. Medina (1995) 11 Cal.4th 694, 759; People v. Breaux (1991) 1 71 Cal.4th 281, 305-306.) In light of these cases, the prosecutor’s initial remarks during closing argumentin this case must be deemed equally proper. The prosecutor’s subsequent statements during closing argumentalso cannot reasonably be interpreted as denigrating opposing counsel. For example, the prosecutor was merely commenting that the defense’s position was that appellant “wasn’t there.” (RT 2966.) Although the prosecutordidstate, “I say he’s lying,” his remarks can only be reasonably understood as a comment on the weaknessofthe defense evidence. This is most clearly shown bythe fact that the prosecutor then discussed the evidence that linked appellant to the charged offenses. (RT 2966-2994.) Thus, the prosecutor’s statements during closing argumentdid notconstitute misconduct. (See People v. Bemore, supra, 22 Cal.4th at pp. 843-847[prosecutoruseda “rhetorical device” focusing on the evidence showing guilt and on any corresponding weakness in the defense case]; People v. Frye, supra, 18 Cal.4th at p. 978 [prosecutor’s comments were a “fair response”to the defense arguments].) The prosecutor’s statements during rebuttal argument werealso proper. The prosecutor’s argument was in response to defense counsel’s assertion during closing argumentthat the telephonerecords for the phonein the upstairs apartment showedthatno telephonecalls were made from that phone“after the afternoon.” (RT 3077.) The prosecutor was merely noting that Cyprian had testified that he called someone using that phonejustprior to the shooting and that the telephonerecords showed telephonecall at 9:05 p.m. (RT 3084.) He was also noting thatthe jury should not be misled by the defense evidence or defense counsel’s argument, but should instead rely on the evidence that had been submitted. Although the prosecutor may have used harsh words to make his point, he is allowed to “vigorously argue his case using appropriate 72 epithets.”2(People v. Welch (1999) 20 Cal.4th 701, 752-753; see People v. Wharton (1991) 53 Cal.3d 522, 567.) Thus, the prosecutor’s statements did not constitute misconduct. Assuming arguendo that the prosecutor’s statements were improper, appellant’s convictions mustbe affirmed becauseit is not reasonably probable that the jury would have reached a more favorableresult in the absence of any misconduct. (People v. Kipp (2001) 26 Cal4th 1100, 1130; People v. Welch, supra, 20 Cal.4th at p. 753.) Here, the prosecutor’s allegedly improper remarks were briefand did not permeatehis lengthy closing argument. (People v. Kipp, supra, 26 Cal.4th at p. 1130; People v. Walsh (1993) 6 Cal.4th 215, 265-266.) Moreover, the evidence that appellant committed the charged offenses was strong and even supported by defense witness Lee; this made it even more unlikely that the prosecutor’s statements would have anyeffect on the jury. (RT 2724-2726.) Finally, the trial court instructed the jury more than once that statements by the attorneys were not evidence (CT 306; RT 2932, 2964), and jury’s are presumedto follow such instructions. (People v. Valdez (2004) 32 Cal.4th 73, 114 fn. 14.) Thus, appellant’s claim mustberejected. 21. Indeed, as the prosecutor later explained, his comments in both closing and rebuttal arguments referred to appellant’s attempt to secure false testimony from witnesses and pay off people to come and say he was with them when he wasn’t, and an attempt to get Peachesto pull records which demonstrated his ownership of the pager. And he’s out there actively trying to falsify and create evidenceat a time long before this case even hit the judicial system, and that was evidence which waspresented. (RT 4173.) 73 Vill. APPELLANT WAIVED HIS CLAIM REGARDING THE PROSECUTOR’S ALLEGED MISCONDUCT IN QUESTIONING WITNESSES DURING THE GUILT PHASE; MOREOVER, THE PROSECUTOR ACTED PROPERLY IN QUESTIONING WITNESSES REGARDING APPELLANT’S TRIP TO NEW YORK Appellant contends the prosecutor engaged in misconductat the guilt phaseby using facts not in evidence and inadmissible hearsay in questioning witnesses. (AOB 175-197.) Respondent submits that appellant waived this claim and further submits that, in any event, the prosecutor acted properly. A. Relevant Facts And Proceedings During opening statement, the prosecutor asserted that the evidence would show that appellant and Cyprian went to New York after the murders and stayed at the Stanford and Aberdeenhotels using the names Mark and Michael Cole. The prosecutor noted that appellant placed his mother’s address andhis wife’s birthday onthe registration card to the Stanford Hotel and signed his name as Mark Cole (RT 1291-1292.) During the prosecution’s case-in-chief, Sheila Jones, the aunt of appellant’s wife, was called as a witness. (RT 1739-1740.) Defense counsel objected when the prosecutor asked, “Do you have any explanation for why from the Hotel Stanford in New York - -.” During a sidebar proceeding, defense counselstated he would “object to the introduction of the contents of any writings from New Yorkoranyplace else which are business records,until a foundationisfirst laid as to authentication and the business records exception of the hearsay rule.” Defense counsel arguedthat to do otherwise would “just bootstrap[] into evidence the contents without any authentication or foundation being laid.” (RT 1741.) 74 The prosecutorstated that he was bringing a witness from New York named Robert Song, who hadadvisedthe prosecutor regarding certain details on the records at issue. The prosecutor added that he wanted to ask Jones whether she had spoken to appellant during the dates noted on the records, whether he had told her he was in New York, and whether she could explain ‘whythe records indicated that someone from the Stanford Hotel hadcalledher. (RT 1741-1743.) The court clarified that the prosecutor merely wanted to ask Jones whether she had received telephonecalls from appellant. (RT 1742-1743.) The prosecutor addedthat he would ask details regarding the conversations. (RT 1743.) Defense counsel said he had no objections “to that.” He added that he would object“to anything being asked by using these documentsasa reference point.” He addedthat the prosecutor needed to “lay the foundation and get a business records exception” before he could discuss anything related to the contents of the records. The prosecutor stated, “I have no interest at all in introducing these documents.” Defense counsel asserted that the prosecutor could not use the documents in any way becauseit would merely “bootstrap the contents of the business records without laying a foundation for them.” (RT 1743.) The prosecutor then reiterated that he was planning on calling Robert Song as a witness. Defense counselreplied, “I don’t want the contents ofthese writings introduced into evidence, marked for identification or referred to.” (RT 1743.) Theprosecutorstated that he would use the documents“to reference the date and timeofspecific calls.” (RT 1743.) Defense counsel argued that the prosecutor was not allowed to refer to documents that had not been authenticated and had not been shown to meet the business records exception. (RT 1744.) Counsel added that the prosecutor could write down the 75 information on his legal pad andreferto that. The prosecutor agreed to do so and agreedto place the records back in an envelope. (RT 1744.) The court then told the jury to go into the jury room;duringthis period, the prosecutor transferred the information onto another sheet of paper. (RT 1745.) When hehaddoneso,direct examination continued. (RT 1745-1753.) Jones denied receiving telephonecalls from appellant on January 4, 1990 or January 5, 1990, andstated that she wasout of townatthat time. (RT 1746- 1749.) Daurus Cyprian wascalled as the prosecutor’s next witness. (RT 1753.) On the second day of Cyprian’s testimony, the prosecutor attempted to ask Cyprian abouthis stay at a Travelodge on January 3, 1990. Defense counsel objected,stating, “The objection would beto asking this witness any questions aboutthe contents of that writing or putting that blowup onthebulletin board. The objection would be hearsay and lack of authentication, the same basis as the objection I made yesterday with respect to the hotel receipt from the Stanford Hotel in New York.” The prosecutor corrected defense counsel by saying, “Well, he didn’t make an objection to the registration card because I neverofferedit.”(RT 1800.) The prosecutor added,“I intendto do that with this witness, too. He was presentat the time that [appellant] signed into these hotels. He waspresent on the day thatit happened, and he can certainly identify them, and I can also ask him if he couldidentify them.” (RT 1800-1801.) Cyprian testified that on January 4, 1990, he was in New York with appellant and that the two of themwentto the Stanford Hotel and checked in under the names “Mark”and “Michael Cole.” Whentheyarrived at their room, they made sometelephonecalls. (RT 1754, 1804, 1806-1807.) Cyprian did not see appellant sign anythingorfill out a card for the hotel room,although he did 22. There does not appear to be any objection during Cyprian’s testimony regarding an enlargement ofthe Stanford Hotel registration card. 76 see appellant later pay for the telephone calls. (RT 1808-1809.) During cross-examination, Cyprian reiterated that he had not seen appellant write on any type ofregistration card or paper while registeringat the Stanford Hotel. He also testified that he had not seen any registration paperworkfrom the hotel. (RT 1859.) Robert Greenwood, a handwriting expert, also testified for the prosecution. (RT 2323-2324.) During cross-examination, Greenwoodtestified that he had reviewed some documents that he was unableto link to appellant. (RT 2330.) One ofthose documents wastheregistration card from the Stanford Hotel. (RT 2330-2331.) Greenwood later explained during redirect examination that he had not made a comparison of the signature on the registration card because it was written in a small box. (RT 2334.) At the end of the prosecution’s case, defense counsel objected to the admission ofthe telephone records from New York. The prosecutor notedthat those records were not being offered as an exhibit and were never marked. He added that the records would not become “part of the case” until appellant testified. (RT 2714.) Appellant also objected to the registration card from the Stanford Hotel. (RT 2715.) The prosecutor again noted that the card had not been marked for identification and would not become a piece of evidence unless appellanttestified. (RT 2716.) Prior to the presentation of the prosecution’s rebuttal case, the defense requested an offer of proof. (RT 2899.) The prosecutor stated that he had contacted the Stanford Hotel and that the custodian of records at the hotel was sendingthe original registration card via overnight mail. The prosecutor had shown a faxed copyofthe cards to a handwriting expert who had concluded that the person who signed the name “Mark Cole” was the same person who wrote the name “Patrick Cole” on the Delcomberreceipt. (RT 2900.) The prosecutor notedthat the handwriting expert had beenin court that morning, but 77 could not testify because the original registration card had not arrived. (RT 2900.) Defense counsel argued that the prosecutor’s proposed evidence was not proper rebuttal evidence and should have been submitted during the prosecution’s case-in-chief. (RT 2901-2902, 2904-2907.) Defense counsel added that there was evidence related to a second hotel in New York, the Aberdeen, andthat he had neverreceived any documentsrelated to that hotel. (RT 2902-2903.) The prosecutorstated, “I put on the record before that it was present in court. I have shownit to him on prior occasions. Thedate it was shown to him was the Ist of October, and it’s been in court every day.” (RT 2903.) The prosecutoralso stated, The Stanford Hotel is a blow-up I have had in every single day since the proceedings began. The court is aware of that. I had actually had a blow-up on the board. It was objected to. It was never markedas an exhibit. We approachedside barearly in the proceedings aboutthe Stanford receipts. (RT 2904.) The prosecutor explained that he had not submitted the evidence during his case-in-chiefbecause ofthe expense in transporting the custodian of records to Los Angeles and because he had relied on defense counsel’s representation that appellant wouldtestify. The prosecutor had plannedto have the records authenticated by appellant during cross-examination. Because appellant nevertestified, the prosecutor wanted to authenticate the records during his rebuttal case. (RT 2901, 2911-2914.) The prosecutortold the court “to look at the opening statement and look at the information which we putin front of the jury whichis likely to mislead them if I am notentitled to put on this rebuttal.” (RT 2915.) The court eventually found that the evidence was not properfor the rebuttal portion ofthe case. The prosecutor then requested to re-open his case- in-chief. (RT 2922.) The court eventually denied the prosecutor’s request. 78 (RT 2928.) In Supplemental Points and Authorities In Support ofMotion For New Trial, defense counselstated that the prosecutor had placed a “blow-up ofthe faxed copyof the Hotel Stanford registration card” on a boardin front of the jury. (CT 215-216.) Defense counsel“immediately objected, and a conference washeld at the side bar which resulted in the removal of the blow-up.” (CT 216.) Prior to sentencing,the parties returnedto the issue ofthe Stanford Hotel registration documents. The prosecutorreiterated that he decided notto present the evidence during his case-in-chiefbecausehehadrelied on defense counsel’s representations that appellant wouldtestify and had determinedthat it “wasn’t worth the expense”of flying witnesses from New York to California. The prosecutor conceded that the decision wasa “tactical error.” The prosecutor stated that his error was not donein bad faith. Instead, the defense acted in bad faith by not having appellant testify after representing that he would. (RT 4171.) The prosecutor added, “I had all the documentation from all the phone records which I was relying on in making my opening statements. The facts as I related them existed. ... It’s not like I made it up and had nointention or ability to actually prove it.” (RT 4171-4172.) Instead, the prosecutor was prevented from submitting the evidence because he had made a “tactical error.” Theprosecutor argued thathis tactical mistake was “taken advantage of”by the defense because they prevented him from submitting the documents into evidence. (RT 4172.) B. Appellant Has Waived His Claim; Moreover, The Prosecutor Did Not Engage In Any Misconduct Appellant contends the prosecutor engaged in misconductbyreferring to facts not in evidence and inadmissible hearsay while questioning witnesses. 79 (AOB 175-197.) Althoughtrial counsel objected to the prosecutor’s initial reliance on records while questioning Jones, he did not object when the prosecutor wrote downthe information on another sheet ofpaper and usedthat to question Jones. (RT 1741, 1744.) In fact, counsel had suggestedthis course of action and also stated that he did not object to the prosecutor asking Jones questions regarding whethershe had received telephonecalls from appellant. (RT 1743-1744.) Counselalso failed to object to the prosecutor asking Cyprian about the trip with appellant to New York and the prosecutor asking Greenwood whether he had made a comparison of the signature on the registration card. (RT 1754, 1804, 1806-1807, 2334.) Moreover, defense counsel never requested any admonitionsto the cure the alleged instances of misconduct. (RT 1741-1744, 1754, 1804, 1806-1807, 2334.) As such, appellant has waived his claim ofprosecutorial misconduct. (People v. Bolden (2002) 29 Cal.4th 515, 564; People v. Gurule (2002) 28 Cal.4th 557, 651; Peoplev. Silva (2001) 25 Cal.4th 345, 373; People v. Wash (1993) 6 Cal.4th 215, 258.) Assuming arguendothat the claim had not been waived, appellantisstill unableto prevail. Although a prosecutor commits misconductbyreferring to facts not in evidence or inadmissible hearsay (see People v. Coffman (2004) 34 Cal.4th 1, 95; People v. Bell (1989) 49 Cal.3d 502, 534), there is nothing to indicate that the prosecutordid so in this case. For example, the prosecutor neverreferred to facts not in evidence or inadmissible hearsay when Cyprian testified that he stayed with appellant at the Stanford Hotel in New York or when Greenwoodtestified that he had not made a comparison involving the signature on the Stanford Hotelregistration card. (RT 1754, 1804, 1806-1809, 2334.) In fact, the prosecutor questioned Greenwoodaboutthe Stanford Hotel registration card only in response to defense counsel’s cross-examination questions regarding the document. (RT 2330-2331.) 80 The direct examination of Jones also fails to indicate any misconduct. The prosecutor merely asked Jones ifshe had received any telephonecalls from appellant on January 4, 1990, or January 5, 1990, and she answeredthat she was out of town at that time. (RT 1746-1749.) Although the prosecutor initially had sometelephonerecords in his hands and mayhavestarted to refer to them during his examination of Jones, this does not constitute misconduct because his question andactions could not have been taken by the jury to imply anything harmful. (People v. Williams (1997) 16 Cal.4th 153, 252-253.) The prosecutor did not complete his question,did not have the records in his hands for more than a few moments, and placed the items into an envelope after defense counsel objected.’ (RT 1739-1741, 1744.) For all of the foregoing reasons, the prosecutor did not commit misconductin the manner in which he questioned the witnesses. (See People v. Young (2005) 24 Cal.Rptr.3d 112, 146 [prosecutor’s actions were “minor and neither deceptive nor reprehensible”]; People v. Mayfield (1997) 14 Cal.4th 668, 754 [“We do not find misconduct. . . based on these isolated and relatively insignificant incidents”].) As such, appellant’s constitutional rights were notviolated. Appellant has also failed to establish that the prosecutor committed misconduct by briefly displaying an enlargement of the Stanford Hotel registration card. (AOB 182-184.) Although appellant contends that the enlargement wasdisplayed “for weeks” (AOB 180, 183-184), the record does not support this conclusion. According to appellant’s Supplemental Points and Authorities in Support ofMotion For New Trial, defense counsel“immediately objected”to the display, and a sidebar conference was held which resulted in its removal. (CT 216.) The prosecutor’s statementthat he had the enlargement 23. Although appellant contends the prosecutor removed the documents from an envelopein front of the jury (AOB 178), there is nothing to indicate that this was the case. Rather, it appears that the documents werealreadyin the prosecutor’s hands when Jones took the stand. (CT 217.) 81 “in every day since the proceedings began”did not mean that he haddisplayed the enlargementsincethestart oftrial. Rather, taken in context, the prosecutor was merely noting that he had brought the enlargementto court every day. (RT 2904.) Because the prosecutor immediately removed the enlargementfrom the display board after defense counsel successfully objected to it, there was no misconduct. (See People v. Mayfield, supra, 14 Cal.4th at p. 754.) Appellant attempts to avoid this conclusion by arguing that the prosecutor’s subsequentfailure to admit the Stanford Hotel registration card demonstrates that the prosecutor could not meet the foundational requirements of any hearsay exception. (AOB 184.) However, as the prosecutorrepeatedly noted, he hadinitially plannedto call the Stanford Hotel’s custodian ofrecords to authenticate the records and showthat they constituted business records. He later decided against this course of action because of the expense of transporting the witness from New York and because he relied on defense counsel’s assertions that appellant would testify and believed that appellant would authenticate the documents during that testimony. (RT 1743, 2901, 2911-2915, 4171-4172.) In lightofthesefacts, there is nothing to indicate that the prosecutor would have been unable to prove that the Stanford Hotel registration met a hearsay exception. Appellant appears to further contendthat the prosecutor asked questions designed to obtain inadmissible testimony. (AOB 188-192.) Although it is improper for a prosecutorto attemptto elicit inadmissible evidence (Peoplev. Silva, supra, 25 Cal.4th at p. 373), there is nothing to indicate that the prosecutorin this case engagedin this type ofbehavior. The prosecutor merely asked Jonesifshe hadreceived telephone calls from appellant on January 4 and January 5, 1990 and merely questioned Cyprian abouthis trip with appellantto New York. (RT 1746-1749, 1754, 1804, 1806-1809.) None ofthese questions elicited inadmissible evidence or were designed to do so. Moreover, the 82 prosecutor’s redirect examination of Greenwood briefly touched on the Stanford Hotel registration card only because appellant had questioned Greenwood about the document during cross-examination. (RT 2330-2331, 2334.) Thus, appellanthas failed to demonstrate that the prosecutor attempted to elicit inadmissible evidence. Assuming arguendothat the prosecutor did commit misconduct, it was harmless beyond a reasonable doubt. (People v. Bell, supra, 49 Cal.3d at p. 534.) First, contrary to appellant’s assertion (AOB 188, 195), the prosecutor’s alleged reliance on inadmissible evidence and hearsay was not constant and was instead merely fleeting andbrief, consisting of only a few questions aimedat three witnesses (RT 1746-1749, 1754, 1804, 1806-1809, 2334). (See People v. Mayfield, supra, 14 Cal.4th at p. 754; People v. Wash, supra, 6 Cal.4th at p. 258; People v. Mickey (1991) 54 Cal.3d 612, 667.) Second, the jury was specifically instructed that statements of the attorneys were not evidence,that the jury should not“assumeto betrue any insinuation suggested by a question asked a witness,” and that “[a] question is not evidence.” (CT 306; RT 29372.) The jury is presumed to have followed such instructions. (People v. Valdez, supra, 32 Cal.4that p. 114 fn. 14.) Finally, as the prosecutor noted (RT 4172), the defense benefitted when the prosecutor was prevented from corroborating through documentary evidence that appellant had been in New York after the murders. Thus, any error was harmless. Appellant attempts to avoid this conclusion by arguing that People v. Wagner (1975) 13 Cal.3d 612 and People v. Evans (1953) 39 Cal.2d 242 dictate a contrary result. (AOB 189-192.) These cases are clearly distinguishable. In Wagner, the prosecutor acted impermissibly by repeatedly asking a defendant questions that insinuated, suggested, and led the jury to believe that the defendant had engagedin prior drug transactions. (People v. Wagner, supra, supra, 13 Cal.3d at pp. 619-620.) This Court found that these 83 actions had prejudiced the defendant because the case centered on the credibility of the witnesses. (/d. at pp. 620-621.) In Evans, the prosecutor asked a defendant a number of questions that seemed designed to place uncorroborated testimony in front of the jury. (People v. Evans, supra, 39 Cal.2d at pp. 247-248.) The prosecutor never made any attempt to prove the truth of the matters asserted in the questions, and this Court found that a new trial was required for this and other reasons. (Id. at pp. 248-249, 251-252.) In contrast, the prosecutor in this case did not ask questions which insinuated or suggested informationthat was notprovedattrial. For example, appellant’s trip to New York,thestay at the Stanford Hotel, and the telephone calls made from New York were corroborated by Cyprian’s testimony. (RT 1806-1808.) Moreover, unlike Wagner and Evans, the questionsat issue in this case werebrief and fleeting. Thus, Wagner and Evans in no waydictate that the alleged misconduct was prejudicialin this case. Appellant further argues that the error was prejudicial because the prosecutor admitted that the failure to submit the evidence regarding the Stanford Hotel registration card misled the jury. (AOB 187.) However,the prosecutor was merely noting that he had discussed the Stanford Hotel registration card during opening statements andthat the prosecution case would be harmed if he was not allowed to submit evidence ofthe registration card during his rebuttal case. (RT 1291-1292, 2901, 2911-2915.) The prosecutor was not admitting that he had purposely misled the jury to appellant’s detriment. As the prosecutorlater stated, the documents existed and he had the ability to prove the documents at the time he madehis opening statement. However, he madethe “tactical error” ofrelying on defense counsel’s assertions that appellant wouldtestify and, based on thatreliance, he decided to submit evidence of the Stanford Hotel registration card and the telephone records during his planned cross-examination of appellant. (RT 4171-4172.) As the 84 prosecutor further noted, the defense had “taken advantage of’the prosecutor’s error because the prosecutor was then prevented from submitting the registration card or the telephonerecords into evidence. (RT 4172.) Thus, the prosecutor’s admissionthat he had erred in no wayindicates that appellant was prejudiced. To the contrary, appellant appearedto benefit from the prosecutor’s mistake. Appellant finally argues that there was cumulative prejudice based on the other alleged instances of misconduct. (AOB 196-197.) Respondent has already shown,supra, that there were no instances of misconduct. Therefore, there was no cumulative prejudice. (People v. Young, supra, 24 Cal.Rptr.3d at p. 147; People v. Valdez, supra, 32 Cal.4th at p. 136.) Ix. THE TRIAL COURT PROPERLY INSTRUCTED THE JURY THAT EVIDENCE OF FLIGHT AND EFFORTS TO SUPPRESS OR FABRICATE EVIDENCE COULD BE CONSIDERED AS EVIDENCE OF GUILT Thetrial court instructed the jury that evidence offlight or efforts by appellant to fabricate or suppress evidence could be considered as evidence of guilt. (CT 311, 313, 323; RT 2935-2936, 2940.) It also instructed the jury on second-degree murder. (CT 349-353; RT 2952-2953.) Appellant now contendsthat the instructions onflight, fabrication of evidence, and suppression of evidence should not have been given because any of those factors did not logically support an inference that appellant committed a first-degree murder. (AOB 198-201.) However, as appellant concedes, his argumenthas been rejected by this Court. (AOB 201.) As such,thetrial court did not err by giving the challenged instructions. (People v. Bacigalupo (1991) 1 Cal.4th 103, 128; see People v. Welch (1999) 20 Cal.4th 701, 757; cf. People v. Jackson (1996) 13 Cal.4th 85 1164, 1224.) X. THE ROBBERY CONVICTIONS AND TRUE FINDINGS ON THE SPECIAL-CIRCUMSTANCE ALLEGATIONS MUST BE UPHELD Appellant contendsthat the robbery convictions andthetrue findings on the special-circumstance allegations must be overturned because there was insufficient evidence to corroborate Cyprian’s and Lee’s testimony regarding the robberies, because the robbery-related special-circumstanceallegations were never adequately charged, and because the jury was not given a unanimity instruction. (AOB 205-233.) These arguments mustberejected. A. Relevant Facts And Circumstances Appellant was charged with two counts of murder and two counts of robbery. (CT 139-141.) Pursuant to Penal Code section 190.2, subdivision (a)(17), it was alleged that the murders were committed by appellant while he was engaged in a robbery. (CT 139-140.) ‘During a discussion regardingjury instructions, the prosecutorstated that the robberies charged in counts three and four were premised on the taking of the victims’ wallets. (RT 2882.) The prosecutor further stated that the jury could use the attempted robbery ofthe cocaine as the basis for true findings on the special-circumstance allegations. (RT 2881-2882.) Accordingly, the prosecutor requested an instruction that defined possession. (RT 2881.) Defense counselobjected to the instruction,stating that “the evidenceis entirely speculative as to whetherornot a robbery was going to take place with respect to the cocaine. Thereis no evidencein this case that there was ever any cocaine seen, touched,smelled,delivered, possessed, or anythinglike thatat all 86 and no evidence or any possession of money in any form whatsoever.” (RT 2883.) Defense counsel also objected to the instruction defining murder. Counsel stated that he objected to the portion that stated that one of the elements of murder was that the killing occurred during the commission or attempted commission of a robbery. (RT 2886-2887.) For the same reasons, counsel objected to the instructions on first-degree felony murder (CALJIC Nos. 8.21, 8.26, and 8.27). Counsel reiterated that he was objecting to those instructions “because ofthe reference to robbery.” (RT 2887.) The prosecutor then asked if counsel was objecting because “there is another word [he would] rather have put in there” or whether counsel did not believe the evidence demonstrated a robbery. (RT 2887-2888.) Counsel stated, “T don’t believe the evidence demonstrates a robbery.” (RT 2888.) Counsel clarified that he did not believe there was enough evidence regarding “both theories” of the robbery, including the robbery of the wallets. The court stated that there was sufficient evidence to support the instructions. (RT 2888.) Defense counsel similarly objected to the instructions on the special circumstances (CALJIC Nos.8.80, 8.81.17) in regards “to that aspect ofit that refers to murderin the commission of a robbery.” (RT 2889.) The court later reiterated, “{A]s far as the murder during the commission ofa robbery,I will makea finding that thereis sufficient evidence that I should allow this matter to go to thetrier of fact.” (RT 2893.) During a subsequent discussion on the instructions, the court asked if there was anythingelse to discuss. (RT 2929.) Defense counselstated, “The defenseis satisfied with the present set of instructions. (RT 2929-2930.) The jury wasinstructed that a murder occurs when a person unlawfully kills another person with malice aforethought or during the commission or the attempted commission of a robbery (CALJIC 8.10). (CT 342; RT 2948-2949.) 87 The jury was furtherinstructed thatfirst-degree felony murder was committed when an unlawful killing occurred during the commission of or attempted commission of a robbery (CALJIC No. 8.21). (CT 346; RT 2951.) The instructions also stated that the commission orthe attempted commission of a robbery was oneofthe special circumstances (CALJIC No.8.80, 8.81.17). (CT 360, 363; RT 2958-2959.) Thejury was additionally instructed thatthe testimony ofan accomplice needed to be corroborated by other evidence which tended to connect the defendant with the commission of the offense (CALJIC No. 3.11). (CT 333; RT 2945.) Theinstructions wentontostate that the corroborating evidence had to include “someactor factrelated to the crime which,ifbelieved,byitselfand without any aid, interpretation or direction from the testimony of the accomplice, tends to connect the defendant with the commissionofthe crime charged” (CALJIC No. 3.12, emphasis added). The instruction further stated that it was not necessary that the corroborating evidence “besufficientin itself to establish every element of the crime charged.” (CT 334; RT 2945-2946.) Theinstructions on the special circumstances (CALJIC No.8.83.3) also stated that testimony of an accomplice had to be “corroborated by other evidence which tends to connect the defendant with the commission of such crime.” (CT 268; RT 2961, emphasis added.) Duringthe givingoftheinstructionsto the jury, the prosecutorasked the trial court to read CALJIC No. 6.00, which defined attempt. The prosecutor explainedthat the instruction “goes towards not only the special circumstance butalso the theory of the felony murder.” Defense counsel had noobjection to the reading ofthe instruction. (RT 2956.) Defense counsel stated during closing argumentthat “four ofthe five elements that are required for a robbery are presentin this case.” (RT 3004.) However,there was no evidence showingthat the wallets were removed from 88 the victims with the specific intent to permanently deprive those victimsoftheir wallets. (RT 3005-3006.) During the prosecutor’s rebuttal argument, he began to discuss the instructions on possession and attempted robbery, stating, “There is an instruction which you received on possession and this goes to an attempted robbery that is not even chargedin this case.” (RT 3091-3092.) At that point, the trial court called both attorneys to the bench. Thetrial court explained that it had not read the instruction on possession because it did not believe it pertained to the case. (RT 3092.) Defense counsel stated that there was no evidence that Thomas and Barron hadthe right to possess the cocaine and that such an argument was “entirely speculative.” The court noted that the testimony showedthat “this was a transaction of $50,000 for cocaine, and the presumptionhereis that the defendant and his codefendants had $50,000 and the fact that the victims had cocaine.” (RT 3093.) The court concluded that Barron and Thomas had “presumptive possession”and said it would read the possession instruction later. Defense counsel stated he was objecting to the instruction. (RT 3094.) The prosecutor then arguedto the jury that there were “two robberies going on at the sametime. Thereis the attempted robbery ofthe cocaine.” (RT 3094.) This attempted robbery was underway when appellant and the others brought Barron and Thomasto the apartment. After the two men were restrained and gagged, the robbery that was “charged in this case actually occurred, and that’s the taking ofthe wallets.” (RT 3095.) The prosecutor clarified that appellant had committed the robbery of the wallets and the attempted robbery of the cocaine andthat “both of those serve to substantiate the special circumstance, which is murder during the course ofan attempted or commission of a robbery.” (RT 3096.) After the prosecutor concludedhis rebuttal argument, the court read the 89 instruction defining possession. (RT 3107.) B. The Trial Court Properly Instructed The Jury On The Level Of Corroboration Needed To Obtain A Conviction Based On Accomplice Testimony And There Was Adequate Corroborating Evidence To Support The Jury’s Findings 1. The Instructions On Corroboration Were Adequate Appellant contendsthatthetrial court did not adequately instruct thejury that accomplice testimony must be corroborated by evidence which relates to some act or fact which is an element of the offense. (AOB 206-211.) This argument must be rejected. A conviction cannotbe based onthe testimony of an accomplice unless it is corroborated by evidence that tends to connect the defendant with the commission ofthe charged offense. (Pen. Code, § 1111; People v. McDermott (2002) 28 Cal.4th 946, 985.) The corroborative evidence must tend to implicate the defendant and mustrelate to some act or fact which is an element of the crime; however,it is not necessary that the evidence be sufficient to establish every elementofthe chargedoffense. (People v. McDermott, supra, 28 Cal.4th at p. 985; People v. Rodrigues (1994) 8 Cal.4th 1060, 1128.) The CALJIC instructions at issue in this case, as discussed earlier, adequately instructed the jury on these rules and have been deemedcorrect statements ofthe law.(People v. Jenkins (1973) 34 Cal.App.3d 893, 899;see People v. Sanders (1995) 11 Cal.4th 475, 534; Peoplev. Bunyard (1988) 45 Cal.3d 1189, 1229; People v. Lewis (2004) 120 Cal.App.4th 837, 848.) Moreover,anyerrorin instructing the jury on the level of corroboration 24. Appellant cites to People v. Martinez (1982) 132 Cal.App.3d 119 and People v. Boyce (1980) 110 Cal.App.3d 726. (AOB 208-209.) However, neither case involves the accuracy orcorrectnessofthe instructionsrelated to accomplice testimony. 90 needed was harmless because a different result was not reasonably probable. (People v. Andrews (1989) 49 Cal.3d 200, 215.) As will be shown,infra, there wassufficient corroborating evidencein the record; therefore, any error had no effect on the outcome ofthe case. (See People v Sanders, supra, 11 Cal.4th at pp. 534-535.) 2. There Was Sufficient Evidence To Corroborate The Accomplice’s Testimony As To The Robberies Appellant contends that there was insufficient evidence to corroborate the accomplices’ testimony regarding the robberies. (AOB 211-215.) This argument must be rejected because there was ample evidence which “tended” to connect appellant to the robberies. Asnoted previously, a defendant cannot be convicted based on the testimony of an accomplice unless it is corroborated by other evidence that tends to implicate the defendant and relates to some act or fact which is an element of the crime. (People v. McDermott, supra, 28 Cal.4th at p. 985; People v. Williams (1997) 16 Cal.4th 635, 680-681.) However, the corroborative evidence need not be sufficient by itself to establish every element of the charged offense, although “it must, without aid from the accomplice’s testimony, tend to connect the defendant with the commission of the crime.” (People v. McDermott, supra, 28 Cal.4th at p. 985.) The requisite corroboration can be established by circumstantial evidence and maybeslight andentitledto little consideration when standing alone. (People v. McDermott, supra, 28 Cal.4th at p. 985; People v. Rodrigues, supra, 8 Cal.4th at p. 1128.) On appeal, the trier of fact’s determination on the issue of corroboration is binding unless the evidence should not have been admitted or does not reasonably tend to connect the defendant with the charged crime. (People v. McDermott, supra, 28 Cal.4th at p. 985.) 91 In thecase at bar, there was sufficient corroborative evidence which tended to connect appellantto the robberies. For example, both Irma Sazo and Marcella Pierre saw appellant, Cyprian, Linton, and Lee near or exiting the apartment where the robberies occurred. (RT 1344-1345, 1355, 1390, 1431- 1432, 1436, 1440, 2141-2142, 2150-2152, 2192-2193, 2202-2203, 2462.) Although evidence placing a defendantat a crime sceneis not sufficient by itself to corroborate an accomplice’s testimony, it can be sufficient when combinedwith other evidence connecting a defendantto the crime. (People v. Medina (1974) 41 Cal.App.3d 438, 466;see, e.g., People v. Williams, supra, 16 Cal.4th at p. 681.) Here, the other evidence included the presence of appellant’s fingerprints and his cellular telephoneat the crime scene. (RT 1506, 2283-2284, 2287, 2296, 2365-2372, 2564.) Although thesepieces ofevidence did not conclusively establish that appellant committed the robberies, they certainly tended to connectappellant to the crimes. (See People v. Zapien (1993) 4 Cal.4th 929, 982-983.) In addition, the presence of Barron’s and Thomas’wallets in a kitchen cabinet indicated that the two men’s wallets had been taken from them. (RT 1774-1775, 2556-2558.) The presence ofthe wallets in the kitchen cabinet, appellant’s fingerprints at the crime scene, and the presenceofother items belonging to appellantat the crimesceneall tend to connect appellant to robbing the victims of their wallets. Appellant was furtherlinkedto the robberies by the evidence regarding his actions following the robberies, such as Sazo’s testimony that appellantfled the crime scene, the Travelodge receipts showing that appellant did not go homeafter the crimes, and the telephone records showing that no telephone calls were billed to appellant’s home telephone from January 3, 1990, through January 15, 1990. (RT 2160, 2194, 2320-2322, 2326-2327, 2346, 2348, 2440- 2441, 2449-2450.) This evidence of flight supports an inference of consciousnessofguilt and constitutes an implied admissionthat can be used to 92 corroborate an accomplice’s testimony. (People v. Zapien (1993) 4 Cal.4th 929, 983, People v. Garrison (1989) 47 Cal.3d 746, 773; People v. Felton (2004) 122 Cal.App.4th 260, 272-273.) Consciousness of guilt was further shown bytestimony from non-accomplices that appellant moved to Wilmington after the crimes, told the neighbors his name was“Patrick,” and asked Raymond Valdez to falsely testify that appellant was with him on January 2, 1990. (RT 1907-1908, 1912-1913, 1915, 1919, 1921, 1926, 1935, 1941, 1945, 1983-1986, 1994, 2029, 2038, 2120, 2571, 3030-3031.) In addition, appellant’s wife attempted to convince an employee at Delcomber Communicationsto destroy any records related to a pager that may have belongedto appellant that was found at the crime scene. (RT 1646, 1980, 1984-1986, 1994, 1996-1997, 2432- 2433, 2435-2436, 2545, 2571.) Finally, the accomplices’ testimony was corroborated by the evidence showingthat appellant arranged the drug transaction that eventually resulted in the robbery. (RT 1559-1561, 1604, 1607, 1765, 1777.) For example, on the day ofthe robberies, records from appellant’s home telephone showedthat there were three calls made to A.R.A., where Barron and Thomas worked. (RT 1496-1497, 2438-2441.) An employee of A.R.A. overheard Barron and Thomasstated they were going to a bar to engage in a drug deal involving $50,000 and three or four kilos of narcotics. (RT 1482-1487, 1489, 1494- 1495.) Appellant was later seen talking to Barron at the bar, and Barron had mentioned to an acquaintance that he was going to make some moneythat night. (RT 2230-2240, 2249.) In light ofthe foregoing evidence, there was sufficient corroboration of the testimony of appellant’s accomplices., As a result, appellant’s claim must be rejected. 93 C. Appellant Has Waived His Claim Regarding Whether He Received Adequate Notice That The Special-Circumstance Allegations Could Be Based On Attempted Robbery; Moreover, Appellant Had Sufficient Notice 1. The Amended Information Adequately Alleged The Attempted Robbery Appellant contendsthat he did not have sufficient notice that the special- circumstance allegations could be based on attempted robbery becauseit had not been charged in the information. (AOB 217-218.) This claim must be rejected for several reasons. First, appellant did notobjectattrial to any alleged lack ofnotice that the prosecutor would base the special-circumstance allegations on attempted robbery. Although defense counsel objected to the instructions related to robbery,he only did so because he did not believe that there was any evidence to support them. (RT 2883, 2887-2888.) Appellant did not object because he believed that attempted robbery had not been alleged or that he received inadequate notice. Therefore, he has waived this contention on appeal. (People v. Cole (2004) 33 Cal.4th 1158, 1205; People v. Seaton (2001) 26 Cal.4th 598, 641.) Evenif appellant had not waived the claim,heisstill unable to prevail becausehehasfailed to establish a constitutional violation. Underthe state and federal Constitutions, a criminal defendant mustreceive notice of the charges against him so that he can have a meaningful opportunity to defend himself against those charges. (People v. Cole, supra, 33 Cal.4th at p. 1205; People v. Seaton, supra, 26 Cal.4th at pp. 640.) In the case at bar, appellant received adequate notice that the special- circumstance allegations could be based on robbery or attempted robbery. For example, the amended information alleged that appellant had committed the murders ofBarron and Thomas while “engaged in the commission ofthe crime 94 ofRobbery, within the meaning ofPenal Code section 190.2(a)(17).” (CT 139- 140.) Subdivision (a)(17)(A) of Penal Code section 190.2 specifically states that the death penalty or life in prison without the possibility of parole applies to murders committed “while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit” a robbery. (See People v. Cain (1995) 10 Cal.4th 1, 41 (emphasis added).) Thus, the amended information clearly referenced a Penal Codeprovision that included attempted robbery. Moreover, defense counsel did not express that he wassurprisedorthat appellant would be prejudiced because he had not previously been aware that the prosecutor mightbase the special circumstances on attempted robbery rather than robbery. Counsel was undoubtedly aware that an attempted robbery theory waspossible based on Lee’s preliminary hearing testimony that appellant had Barron and Thomastied up and then told Barron tocall “his people”to deliver the narcotics. (CT 70, 72-73.) Defense counsel was further made awareofthe attempted robbery theory when the prosecutorsaid in his opening statementthat appellant had arranged a narcotics transaction but had “no intention of giving anybody any money”andthat appellant was going to give the drug dealers a bag “with nothing in it and leave with their narcotics.” (RT 1279-1280.) Moreover, the required notice is generally deemed adequate if the alleged unchargedoffenseis a lesser included offense of the charged offense. (People v. Lohbauer (1981) 29 Cal.3d 364, 369.) As appellant concedes, attempted robbery is a lesser included offense of robbery. (AOB 217.) Under these circumstances, appellant’s right to notice of the charges against him was not compromised. (See, e.g., Pen. Code, § 1159; People v. Cain, supra, 10 Cal.4th at p. 42; People v. West (1970) 3 Cal.3d 595, 612; People v. Parks (2004) 118 Cal.App.4th 1, 6.) 95 Assuming arguendothat there was inadequate notice that the special circumstances might be basedon an attempted robbery, appellant cannotprevail because there has been no demonstrated prejudice. (See People v. Thomas (1987) 43 Cal.3d 818, 830-831.) At the time the prosecutor requested the attempted robbery instructions, defense counseldid not argue, and there is nothing to show, that appellant could have developed a more persuasive defense had he knownin advancethat the prosecutor wouldrely on attempted robbery. In addition, the jury convicted appellant of the two countsrelated to the robbery ofthe wallets. (CT 140-141, 388-389; RT 3095-3096.) Thus, even ifthere was inadequate notice that the special circumstances could be based on attempted robbery, any error was harmless becausethe jury’s verdict on the robbery charges supported the true findings on the special-circumstance allegations. As a result, appellant’s claim must berejected. 2. Appellant’s Right To The Assistance Of Counsel Was Not Violated Appellant contendsthatthe failure to charge the attempted robbery as a special circumstance violated his constitutional right to the assistance of counsel. (AOB 218-226.) However,the record clearly showsthat appellant’s constitutional rights were notviolated. Both the state and federal Constitutions guarantee a criminal defendant the rightto the effective assistance ofan attorney. (Geders v. United States, 425 USS. 80, 91, 96 S. Ct. 1330, 47 L. Ed. 2d 592 (1976); Herring v. New York, 422 USS.853, 856-857, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975); People v. Bishop (1996) 44 Cal.App.4th 220, 231.) In order to ensure that a defendant’s constitutional rights to an attorney are not violated, a defendant must be informed of the crimes with which he is charged so that he may have a reasonable opportunity to prepare a defense against those charges. (Peoplev. 96 Bishop, supra, 44 Cal.App.4th at p. 231; see Perry v. Leeke (1989) 488 U.S. 272, 280, 104 S. Ct. 2052, 80 L. Ed. 2d 674.) Asnotedin the previous section, appellant was adequately informedthat the special circumstances included attempted robbery. Moreover, defense counsel did not in any way indicate he had not previously been awarethat the prosecutor might base the special circumstances on attempted robbery rather than robbery. Thus, appellant’s right to notice of the charges against him was not compromised;as a result, his right to the assistance of counsel was not violated. See People v. Williams (1997) 16 Cal.4th 153, 242. Appellant attempts to avoid this conclusion by citing to Sheppard v. Rees (9th Cir. 1989) 909 F.2d 1234. (AOB 222-223.) However, decisions of the federal Courts of Appeal are not binding on this Court. (People v. Seaton, supra, 26 Cal.4th at p. 653.) Sheppardalsofails to assist appellant because it is inapposite. Sheppard involved a pattern of prosecutorial conduct that affirmatively misled the defendant and prevented him from having aneffective opportunity to prepare a defense. The prosecutor in Sheppard ambushedthe defendant by submitting an instruction on felony murder after the jury instruction conference and during closing arguments,despite the fact that felony murder had neverbeenraiseddirectly or indirectly during the courseofthe tral. (Sheppard v. Rees, supra, 909 F.2d at pp. 1235-1237.) Here, the instructions on attempted robbery were discussed during the jury instruction conference and prior to closing arguments. (RT 2881-2882.) Moreover, there had been references to the attempted robbery theory in the amended information, the prosecutor’s opening statements, and the evidenceattrial. (CT 139-140; RT 1279-1280, 1558-1559, 1561, 1600, 1602-1604.) Thetrial court even found that there was sufficient evidence to support the instructions on attempted robbery. (RT 2888, 2893.) Thus, Sheppardis of no assistance to appellant. (See People v. Cole, supra, 33 Cal4th at p. 1206; People v. Williams, supra, 16 97 Cal.4th at p. 242.) Accordingly, appellant’s claim mustberejected. 3. Appellant Waived His Eighth Amendment Claim; Moreover, His Right To A Reliable Determination Was Not Violated Appellant additionally contends that his Eighth Amendment right toa reliable determination was violated because the attempted robbery had not been chargedas a special circumstance. (AOB 226-228.) Appellant has waived this claim becausehefailed to raise it in the trial court. (People v. Koontz (2003) 27 Cal.4th 1041, 1076; People v. Jackson (1996) 13 Cal.4th 1164, 1242 n.20.) Theclaim also fails on the merits. “[T]he Eighth Amendment imposes heightened reliability standards for both guilt and penalty determinations in capital cases.” (People v. Cudjo (1993) 6 Cal.4th 585, 623.) The requisite reliability is attained whenthe prosecution has metits burden ofproofat both the guilt and penalty phasesin accordancewith the applicable rules of evidence and within the guidelines ofa constitutional death penalty statute and the death verdict has been returned pursuant to the proper procedures and instructions. (Peoplev. Jenkins (2000) 22 Cal.4th 900, 1044.) Aspreviously established, the amended information, the prosecutor’s opening statement, and the evidence sufficiently apprised defense counselthat the special circumstance could be based on either attempted robbery or robbery. Therefore, there was no error and no Eighth amendmentviolation. (People v. Cole, supra, 33 Cal.4th at p. 1221 n.10; People v. Jenkins, supra, 22 Cal.4th at p. 1044.) Accordingly, appellant’s claim mustbe rejected. D. A Unanimity Instruction Was Not Required Appellant contendsthat the trial court erred whenit failed to give a unanimity instruction in regards to the special circumstance allegations involving robbery and attempted robbery. (AOB 228-233.) This argument 98 must be rejected. A defendant in a criminal case has the right to a unanimousverdict. (People v. Russo (2004) 25 Cal.4th 1124, 1132; People v. Napoles (2002) 104 Cal.App.4th 108, 114.) When a defendantis charged with committing a crime and the evidence reveals there was more than oneact which could constitute the offense, the jurors mustbe instructed that they must unanimously agreethat the defendant committed the same criminal act. (People v. Russo, supra, 25 Cal.4th at p. 1132; People v. Percele (2005) 126 Cal.App.4th 164, 181.) However, a unanimity instruction is not required when the acts are so closely connected that they are part of one transaction or course of conduct. (People v. Benavides (2005) 35 Cal.4th 69, 98; People v. Percele, supra, 126 Cal.App.4th at p. 181.) This rule applies when the defendantoffers essentially the same defenseto each ofthe acts and thereis no reasonable basis for the jury to distinguish between those acts. (People v. Percele, supra, 126 Cal.App.4th at pp. 181-182; see People v. Champion (1995) 9 Cal.4th 979, 932.) For example, in People v. Champion, supra, 9 Cal.4th at p. 932, the defendant argued that his rape conviction should be overturned because the victim testified that he had raped her on twoseparate occasions andthetrial court did not give the jury a unanimity instruction. This Court foundthat there wasnoerror because the two rapes were “virtually identical” and because the defendant offered no evidence showing that he committed one ofthe rapes and not the other; instead, his attorney merely argued that he did not commit any of the crimes in the victim’s home. (/bid.) This Court concluded that once the jury had determined the defendant committed one of the rapes, it was “inconceivable” that the jury would fail to find that the defendant also committed the other rape of the same victim. (/bid.) Thecaseatbar falls well within these parameters. First, the robbery and attempted robbery occurred within “a very small window of time,” which 99 indicated they were part ofthe same course of conductortransaction. (People v. Benavides, supra, 35 Cal.4th at p. 98.) In addition, appellant did notoffer evidence tending to show that he committed either the robbery or the attempted robbery but notthe other;instead,his attorney arguedthat he did notparticipate in any of the crimes occurring in the upstairs apartment andthat there was no intent to permanently deprive anyoneofany property. (RT at 2997, 3000-3303, 3005-3008, 3020-3023, 3027-3029, 3032-3033, 3035, 3065-3068, 3080.) Moreover,the prosecutor did not suggest that the jury could find the special-circumstance allegation to be true based oneither the robbery or the attempted robbery;rather, he wove the twoincidents together. For example, he argued that there were “two robberies going on at the same time. There is the attempted robbery ofthe cocaine,” which was well underway when the robbery that was “charged in this case actually occurred, and that’s the taking of the wallets.” (RT 3094-3095.) The prosecutor clarified that appellant had committed the robbery ofthe wallets and the attempted robbery of the cocaine and that “both of those serve to substantiate the special circumstance, which is murderduringthe course of an attempted or commission of a robbery.” (RT 3096.) Under these circumstances, any juror who believed that appellant committed the robbery would “inexorably”also believe that he committed the attempted robbery and vice versa. (People v. Champion, supra, 9 Cal.4th at p. 932.) Therefore, the trial court did noterr in failing to give a unanimity instruction22 (Ibid.; see also People v. Sapp (2004) 31 Cal.4th 240, 284-285; People v. Percele, supra, 126 Cal-App.4th at pp. 181-182; People v. Haynes 25. Appellant additionally contendsthat his murder conviction must be overturned because it may have beenbased on a felony murder theory and the jury wasnotinstructed thatit had to unanimously agree whetherthe underlying felony was a robbery or an attempted robbery. (AOB 233.) However, this Court hasheld that a defendantis not entitled to a unanimousverdict as to the particular mannerin which a felony murder occurred. (People v. Lewis (2001) 25 Cal.4th 610, 654; People v. Pride (1992) 3 Cal.4th 195, 250.) 100 (1998) 61 Cal.App.4th 1282, 1294-1295.) Appellant arguesthat even ifthe jurors “could not reasonably disagree” whether the robbery and attempted robbery occurred, reversal would be required ifthe jurors could reasonably disagree whether the homicide occurred during the commission of the attempted robbery or robbery. (AOB 231, emphasisin original.) However, because the attempted robbery and the robbery were closely connected and occurred just prior to the murders, a juror who believed that the murders occurred during the commission of a robbery would also inexorably believe that the murders occurred during the attempted robbery and vice versa. For this reason,the trial court did not err whenit failed to give a unanimity instruction. Assuming arguendo that the trial court did err in failing to give a unanimity instruction, the error was harmless beyond a reasonable doubt. (People v. Turner (2004) 34 Cal.4th 406, 423; People v. Wolfe (2003) 114 Cal.App.4th 177, 188.) Here, any error was harmless because, as noted previously, there waslittle basis for the jury to disagree on whether appellant committed an attempted robbery or a robbery because both offenses were committedas part of onetransaction or course ofconduct and appellant did not offer differing defenses to those acts. Moreover, the jury convicted appellant of the two counts related to the robbery ofthe wallets. (CT 140-141, 388-389; RT 3095-3096.) Thus, even if a unanimity instruction was required, any error was harmless because the jury’s unanimous verdict on the robbery charges showsthat the jury also unanimously agreed that the murders occurred during the robberies. Therefore, appellant’s claim mustbe rejected. 101 XI. THE TRIAL COURT PROPERLY ADMITTED EVIDENCE OF PRIOR CRIMINAL ACTIVITY DURING THE PENALTY PHASE AND PROPERLY INSTRUCTED THE JURY , Appellant contendsthat the trial court improperly admitted evidence of prior criminal activity during the penalty phase and improperly instruct the jury regarding this evidence. (AOB 234-298.) For the reasonsthat follow, these arguments must berejected. A. Appellant Has Waived His Claim Regarding The Staleness OfThe Prior Criminal Acts; Moreover, The Evidence Was Properly Admitted Appellant contendsthetrial court violated his constitutionalrights to due process andheightenedreliability when it admitted “stale” evidence ofprior criminal acts. (AOB 246-255.) This argument mustfirst be rejected because appellant waived the claim by failing to object on these groundsin thetrial court. (People v. Medina (1995) 11 Cal.4th 694, 772.) Moreover, as appellant concedes (AOB 247-248), this Court has held that neither the remotenessofprior offensesnorthe expiration ofthe statute of limitations is a proper ground for exclusion because such matters affect the weight, not the admissibility, of the evidence. (People v. Burgener (2003) 29 Cal.4th 833, 867; People v. Anderson (2001) 25 Cal.4th 543, 585; People v. Kraft (2000) 23 Cal.4th 978, 1070; People v. Medina, supra, 11 Cal.4th at p. 772; People v. Anderson (1990) 52 Cal.3d 453, 476.) Thus, in the penalty phase, the prosecutor may offer evidenceofcriminal violence that has occurred at any time. (People v. Burgener, supra, 29 Cal.4th at p. 867; People v. Anderson, supra, 25 Cal.4th at p. 585; People v. Hart (1999) 20 Cal.4th 546, 642: People v. Davis (1995) 10 Cal.4th 463, 533.) Appellant has offered no 102 compelling reason to reconsiderthis rule, nor has he shownthat he was unable to defend against the evidence. (See People v. Anderson, supra, 25 Cal.4th at p. 586; People v. Kraft, supra, 23 Cal.4th at p. 1070.) Therefore, his claim should be rejected. . B. Appellant Has Waived His Double Jeopardy Argument; Moreover, The Admission Of The Evidence Related To His Prior Conviction Did Not Violate Double Jeopardy Principles Appellant contends that the admission of evidencerelated to his 1983 conviction for misdemeanorassault violated doublejeopardy principles. (AOB 255-266.) This argument mustfirst be rejected because appellant waived the claim by failing to object on these grounds in the trial court. (People v. McPeters (1992) 2 Cal.4th 1148, 1188.) The claim mustalso be rejected on the merits. As appellant concedes (AOB260), this Court has repeatedly held that double jeopardy principles are not violated by the admission of the facts underlying a prior conviction at the penalty phase for a subsequent offense. (See People v. Lewis (2001) 25 Cal.4th 610, 660; People v. Jones (1998) 17 Cal.4th 279, 312; People v. Stanley (1995) 10 Cal.4th 764, 820; People v. McPeters, supra, 2 Cal.4th at p. 1188.) This Court hasalso rejected appellant’s contention (AOB 258-260)that Bullington v. Missouri (1981) 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 dictates that double jeopardy principles were violated by the admission of the evidence related to his prior conviction. (People v. Lewis, supra, 25 Cal.4th at pp. 660- 661.) Appellant has offered no compelling reasonsfor this Court ro reconsider its existing precedents. (/d. at p. 661; People v. McPeters, supra, 2 Cal.4th at p. 1188.) Therefore, his claim should be rejected here. 103 C. Appellant Waived His Claim Regarding The Admission Of Evidence Of Violent Acts Committed By Co-perpetrators; In Addition, The Admission Of Such Evidence Was Proper Appellant contendsthetrial court violated his constitutional rights when it admitted evidence of violent criminal acts committed by others. This included evidence that Eddie Jackson shot Moore, that someoneshotat Officer Sims, and that someone threw a brick at Thomas and Williams. Appellant contends the trialcourt could only admit evidencerelated to acts specifically committed by appellant, not his co-perpetrators. (AOB 266-276.) This argument mustfirst be rejected because he neverobjected onthis ground in thetrial court. Therefore, the claim has been waived. (See People v. McPeters, supra, 2 Cal.4th at p. 1188.) Appellant’s argumentalso fails on the merits. As appellant concedes (AOB 268), this Court has previously held that statutory and constitutional principles do not require the prosecutor “to establish that the defendant personally committed each and every act occurring during a violent criminal episode”that is admitted pursuant to Penal Code section 190.3, subdivision (b). (People v. Ray (1996) 33 Cal.4th 313, 351.) The jury is entitled to know about other violent incidents involving the defendant, “whether he participated as an actual perpetrator or in someother capacity.” (Jd.; see People v. Bacigalupo (1991) 1 Cal.4th 103, 137; People v. Hayes (1990) 52 Cal.3d 577, 633; see also People v. Davis (1995) 10 Cal.4th 463, 534 fn. 31 [“It is not the fact of the original charges, but the underlying conduct, that is probative.”].) Thus, appellant’s claim mustbe rejected. 104 D. The Jury Was Properly Instructed On The Aggravating Circumstances Appellant contends that the trial court erred during the penalty phase whenit failed to give the jury instructions on aiding and abetting to be applied to the Penal Codesection 190.3, subdivision (b), evidence. (AOB 276-293.) This argumentis without merit. 1. Instructions On Aiding And Abetting Were Not Required Thetrial court does not have a sua sponte duty to instruct the jury on the elements ofcrimes presented pursuant to subdivision (b) ofPenal Codesection 190.3. (People v. Anderson (2001) 25 Cal.4th 543, 587-588; People v. Hart (1999) 20 Cal.4th 546, 651.) This rule is based on the recognition that, for tactical reasons, a defendant may not want lengthy instructions on other crimes because he maybeafraid that such instructions would lead the jury to place an undue emphasis on the crimesrather than focus on the central issue ofwhether he shouldlive or die. (People v. Anderson, supra, 25 Cal4th at p. 588; People v. Hart, supra, 20 Cal.4th at p. 651.) Thetrial court has no duty to override the defendant’s choice, although it is not prohibited from instructing on the elements of other crimes if such instructions would be vital to a proper consideration ofthe evidence. (People v. Anderson, supra, 25 Cal.4th at p. 588; People v. Hart, supra, 20 Cal.4th at p. 651.) Because a court is not required to give instructions on the elements of the subdivision (b) crimes, by parity ofreasoning,it followsit was not required to give instructions on the liability of aiders and abettors. As this Court has stated, “A defendant’s history of criminal violence is relevant to the ultimate issue in a capital sentencingtrial, but that issue is the appropriate penalty for the defendant’s already-proven capital crimes, not whether the defendant committed the specific elements of additional criminal offenses.” (People v. 105 Anderson, supra, 25 Cal.4th at p. 588.) Jurors would be immersedin “lengthy and complicated discussions of matters wholly collateral to the penalty determination”if sua sponte instructions of the elements of a crimeoraiding and abetting were required. (Id. at p. 589; see People v. Avena (1996) 13 Cal.4th 394, 436 [fact that the prosecutor characterized ajuvenile assault as an attempt to kill does not convert thetrial court’s failure to instruct sua sponte on the elements ofthe crime from a correct legal decision into an erroneousone].) In the case at bar, appellant did not request any instructions onthe liability of aiders and abettors, and there was no indication that such instructions werevital to a proper consideration ofthe evidence. Evidence of a defendant’s prior violent conduct is admitted to help the jury to assess the character and history of the defendant so that it can determine which punishment to impose. (People v. Davis, supra, 10 Cal.4th at p. 534 fn.31.) Because the “proper focus for consideration of prior violent crimes in the penalty phase is on the facts of the defendant’s past actions as they reflect on his character,” there was no needto give technical instructions on aiding and abetting. (People v. Cain (1995) 10 Cal.4th 1, 73.) The evidence and the arguments by the attorneys sufficiently focused the jury’s attention “on the moral assessment”ofappellant’s actionsin the prior incidents, and instructions on theliability of aiders and abettors were notvital to this analysis. (See ibid.) Assuch,thetrial court was not required to give instructions on the liability of aiders and abettorsin the absence of a request for them. (See ibid.) 2. CALJIC No. 8.87, As Read By The Court, Was Proper Asread by the court, CALJIC No. 8.87 stated, “Before a juror may consider any ofsuch criminalacts or activity as an aggravating circumstance in this case, a juror must first be satisfied beyond a reasonable doubt that [appellant] did in fact commit such criminalacts or activity or was involved in 106 such criminal acts or activity.” (RT 3489.) However,the written version of CALJIC No.8.87 did not include the phrase “or was involvedin such criminal acts or activity.” (CT 406.) Appellant appears to contendthatthetrial court’s oral instruction was erroneous. (AOB 293.) This argumentshould berejected. As shown, supra,it was properto admit the evidenceofviolentcriminal offenses even if appellant did not commit each and every act during those violent incidents. Thus, although there was a minor difference between the written and oral versions ofCALJIC No.8.87, the oral version was an accurate and correct statement of the law. (Cf. People v. Lucero (2000) 23 Cal.4th 692, 731.) Moreover, a minor misreadingofan instruction is at most harmless error whenthe written instructions received by the jury are correct.” (People v. Prieto (2003) 30 Cal.4th 226, 255; People v. Box (2000) 23 Cal.4th 1153, 1212.) In the case at bar, the jury was given a written version of the instructions during the guilt phase (RT 2930); therefore,it is likely that they also received a written version of the instructions during the penalty phase. Thus, the discrepancy between the oral and written versions of CALJIC No. 8.87 was harmless. Any error was also harmless because a different result was not reasonably possible in light of the closing argument by defense counsel. (See People v. Carter (2003) 30 Cal.4th 1166, 1221; see also Peoplev. Crittenden 26. Appellant contends that this rule does not apply because the court failed to read an instruction it said it would use andcites to People v. Murillo (1996) 47 Cal.App.4th 1104 for that proposition. (AOB 293.) However, in Murillo,the trial court failed to read an instruction it had indicatedit would give. (Id. at pp. 1106-1107.) Whenthetrial court realizedits error,it decided to include the instruction in the packet given to the jury but never read the instruction to the jury. (Id. at p. 1107.) Thus, Murillo does not govern this issue because it does not involve anoral instruction that differed slightly from the written version of the instruction. 107 (1994) 9 Cal.4th 83, 138; People v. Heishman (1988) 45 Cal.3d 147, 163.) For example, defense counsel told the jury, I’m asking you not to blame myclient for whatever went on in Eddie Jewel Jackson’s mind, what caused him to pull out a gun and shoot Kenneth Moore. It is certainly not myclient’s fault. You’ve heard no evidencethat myclient instructed him to doit, encouraged him to do it or even knew that Eddie had a gun in his pocket. And I don’t want you to makethat great leap in faith and blame myclient for what Eddie Jackson did. _ (RT 3470-3471.) Counsel stated that the evidence merely showedthat appellant had been convicted of a misdemeanorandthat “we do know that he didn’t use a firearm and we do knowthat he didn’t shoot Kenneth Moore.” (RT 3471.) He added that the jury could not “attach great weight” to the Moore incident as an aggravating factor“simply because Eddie Jewel Jackson decided to shoot and kill Kenneth Moore and[appellant] waspresentin that area, in that group.” (RT 3471-3472.) Counsel also argued that it was “pure speculation” that appellant shot at Officer Sims because Sims did not see who shotat him. (RT 3473.) In regardsto the incident involving Mona Thomas, counsel argued that there was no proofthat appellant “actually committed a crime”orthat he committed a robbery or an assault. (RT 3474.) Thus, counsel emphasized that the prior acts of violent conduct could not be used as aggravating factors because, even though appellant may have been involved in the past offenses, the evidence did not show that he had committed the murder of Moore or the other offenses. In light of these arguments, anyerror in misreading the instruction was harmless. Therefore, appellant’s claim mustberejected. 108 E. Appellant Has Waived His Contention That He Received Insufficient Notice Related To The Incident Involving Moore; Moreover, The Record Shows That The Defense Did Receive Adequate Notice Appellant contendsthe prosecutor did not give him adequatenotice that he was going to characterize the Mooreincident as a murder. (AOB 294-298.) This argument mustberejected. Pursuant to Penal Codesection 190.3, the prosecution cannot present evidence in aggravation unless notice of the evidence has been given to the defendant a reasonable amountoftimepriorto trial. (People v. Coffman (2004) 34 Cal.4th 1, 111; People v. Cunningham (2001) 25 Cal.4th 926, 1016.) The purpose oftherule is to advise the defendant ofthe evidence againsthim so that he has a reasonable opportunity to prepare a defense to the evidence. (People v. Farnam (2002) 28 Cal.4th 107, 174.) In the case at bar, appellant did not object on the grounds that he received inadequate notice that the prosecutor was going to characterize the incident involving Moore as a murder. Therefore, he has waived appellate review ofthis issue. (People v. Farnam, supra, 28 Cal.4th at p. 175; People v. Carpenter (1997) 15 Cal.4th 312, 421; People v. Mayfield (1997) 14 Cal.4th 668, 798.) Evenif the claim was cognizable, appellant is still unable to prevail. Appellanthascited to no case specifically holding that he was entitled to notice of how the prosecutor would characterize the evidence related to the prior violent offense, and it does not appearthat he wasentitled to such notice. (See People v. Stitely (2005) 26 Cal.4th 3d 1, 39; People v. Coffman, supra, 34 Cal.4th at pp. 109-110; People v. Carpenter, supra, 15 Cal.4th at p. 421; see also People v. Jones (1998) 17 Cal.4th 279, 311-312.) As this Court hasstated, “Notice pursuant to section 190.3 that the prosecution will present evidence relating to a prior crime or conviction is sufficient to alert the defense that 109 evidence regarding uncharged crimesor other misconduct committedas part of the same incident or course of conductas the prior crime or conviction may be offered.” (People v. Jenkins (2000) 22 Cal.4th 900, 1029; see also People v. Farnam, supra, 28 Cal.4th at p. 175.) Moreover, appellant wasgiven notice of how the prosecutor would characterize the Moore incident because, prior to trial, the prosecutor stated, “There was also a crime where [appellant] was arrested and convicted,I think of 245 and he was supposedto be a witness in that crimebut it was also a murder... .” (RT 5.) Thus, appellant’s contention must be rejected. Assuming arguendothat appellant received inadequate notice, he cannot demonstrate prejudice because he failed to request a continuance once the prosecutor’s characterization of the evidence became known. (People v. Williams (1997) 16 Cal.4th 153, 241; People v. Mayfield (1997) 14 Cal.4th 668, 798-799; People v. Medina (1995) 11 Cal.4th 694, 771.) Moreover, appellant has not specified anything that the defense would have been able to do differently if it had received adequate notice. Therefore, there is no reasonable possibility that appellant suffered any prejudice for the allegedly inadequate notification. (People v. Cunningham (2001) 25 Cal.4th 926, 1016; Peoplev. Jenkins, supra, 22 Cal.4th at p. 1029; People v. Bradford (1997) 15 Cal.4th 1229, 1360; People v. Taylor (1990) 52 Cal.3d 719, 737.) 110 XI. CALJIC NO. 8.87, AS READ BY THE TRIAL COURT, WAS PROPER Appellant contends that CALJIC No. 8.87, as read to the jury,was unconstitutionally vague, was inconsistent with California law, and violated his right to adequate notice and the effective assistance of counsel becauseit did not adequately guide the jury’s decisionmaking. (AOB 299-318.) These arguments mustbe rejected. A. The Instruction Was Not Unconstitutionally Vague Appellantfirst contends that the instruction on the Penal Code section 190.3, subdivision (b), evidence was unconstitutionally vague in violation of the Eighth Amendment. In doing so, he argues that this Court erred in People v. Bacigalupo (1993) 6 Cal.4th 457, when it held that Eighth Amendment vaguenessprinciples did not apply to the factors used by the jury during the penalty phase. (AOB 299-305.) Appellantis incorrect. In Bacigalupo, the defendant argued that the instruction on the subdivision (b) evidence was impermissibly vague under the Eighth Amendmentbecause it did not provide any principled basis for distinguishing between those who deserved death and those who did not. (People v. Bacigalupo, supra, 6 Cal.4th at p. 464.) This Court noted that the United States Supreme Court had drawn a distinction between the decision whether a 27. As read by the court, CALJIC No.8.87 stated, “Before a juror may consider any ofsuch criminal actsoractivity as an aggravating circumstance in this case, a juror must first be satisfied beyond a reasonable doubt that [appellant] did in fact commit such criminalacts or activity or was involved in ~ such criminal acts or activity.” (RT 3489.) However, the written version of CALJIC No.8.87 did not include the phrase “or was involved in such criminal acts or activity.” (CT 406.) 111 defendant was eligible for the death penalty and the decision whether the defendant should be sentencedto death. (Jd. at p. 465; see also People v. Earp (1999) 20 Cal.4th 826, 898.) The eligibility question was governed by the United States Supreme Court’s decisions in Godfrey v. Georgia (1980) 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398, and Maynardv. Cartwright (1988) 486 US. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). (People v. Bacigalupo, supra, 6 Cal.4th at p. 475.) Under these decisions,a state’s capital punishment scheme had to serve a narrowing function by limiting or circumscribing the class of people eligible for the death penalty. (/d. at pp. 465, 475; see also People v. Musselwhite (1998) 17 Cal.4th 1216, 1267.) The eligibility criteria had to also provide an objective basis for distinguishing a case in which the death penalty was imposed from the manycases in which it wasnot imposed. (People v. Bacigalupo, supra, 6 Cal.4th at pp. 465, 475.) In contrast, the sentence selection criteria were not subjected to the same Godfrey/Maynard analysis used to evaluate the death eligibility criteria. (/d. at pp. 466-467, 475.) This did not “suggest that the Eighth Amendment impose[d] no standards whatsoever on those sentencing factors.” (id. at p. 477.) Instead, to meet constitutional dictates, the sentence criteria had to permit the exercise of the judge or jury’s discretion and permit consideration of mitigating evidence. (Jd. at pp. 466-467.) Thecriteria also needed to be defined in terms which were “sufficiently clear and specific” and they had to “direct the sentencer to evidence relevant to and appropriate for the penalty determination.” (/d. at pp. 477-478.) Contrary to appellant’s contention (AOB 304-305), this Court’s analysis in Bacigalupois not contradicted by Tuilaepa v. California (1994) 512 US. 967, 114 S.Ct. 2630, 129 L.Ed.2d 750. In Tuilaepa, the Supreme Court reviewed several aggravating circumstances, including subdivision (b), and concludedthat they were constitutional under the Eighth Amendment. (id. at 112 p. 980.) As in Bacigalupo, the Supreme Court in Tuilaepa noted that its decisions had made a distinction between the eligibility decision and the sentencing decision. (Jd. at pp. 971-973.) The High Court stated that the eligibility criteria could not apply to every defendant that had been convicted of murder and could only apply to a “subclass of defendants convicted of murder.” (Id. at p. 972.) In contrast, the sentence selection criteria had to allow the jury to consider relevant mitigating evidence. (/bid.) The Supreme Court did note that there was “one principle commonto both decisions,” which was that a state needed to ensurethat the “processis neutral and principled soas to guard againstbias or caprice in the sentencing decision.” (Jd. at p. 973.) To meet this requirement, the sentence selection criteria needed to have some “““common-sense core ofmeaning. . . that criminal juries should be capable of understanding.”(Id. at pp. 973-975, quoting Jurek v. Texas (1976) 428 U.S. 262, 279, 96 S.Ct. 2950, 49 L.Ed.2d 929 (White, J., concurring); see People v. Williams (1997) 16 Cal.4th 153, 268). Thus, although worded in a slightly different manner, under both Bacigalupo and Tuilaepa, the criteria used to determine the appropriate sentence must be clear and understandable and must adequately direct the sentencer to evidence that is relevant to the penalty decision. (Tuilaepa v. California, supra, 512 U.S. at pp. 972-975; People v. Bacigalupo, supra, 6 Cal.4th at pp. 477-478; see Espinoza v. Florida (1992) 505 U.S. 1079, 1081, 112 S. Ct. 2926, 120 L. Ed. 2d 854 [aggravating circumstance is vague ifit leaves the sentencer without sufficient guidance to determine the presence or absence of that factor].) Indeed, this Court has often cited to Tuilaepa in determining whether various sentencing factors are vague. (See, e.g., People v. Ramos (2004) 34 Cal.4th 494, 533; People v. Williams, supra, 16 Cal.4th at pp. 267-268.) Under the standards set forth by this Court and the United States 113 Supreme Court, the instruction regarding the subdivision (b) evidence wasnot unconstitutionally vague. Although appellant argues that the “involved in” language should have been defined becauseit failed to adequately guide the jury’s decision (AOB 306-308), this is not the case. The phrase “involved in” was not being used in a technical or legal sense and is a phrase that is commonly understoodbyjurors of average intelligence. (See Commonwealth v. Johnson (Pa. 2002) 815 A.2d 563, 588-589 [an aggravating circumstance using the word “involved”was not unconstitutionally vague because “involved” was a word of “common usage and meaning” and did not require any “additional definition”); cf also People v. Rowland (1992) 4 Cal.4th 238, 270- 271; People v. Raley (1992) 2 Cal.4th 870, 901.) Moreover,the instruction was not dramatically different from the factor upheld against a vaguenesschallenge in the United States Supreme Court. (See Tuilaepa v. California, supra, 512 U.S.at pp. 976-977.) Thus,the instruction wasnot unconstitutionally vague. Appellant argues that the instruction left many questions unanswered. (AOB 307.) However, the sentence selection factors are often not capable of being defined with “‘mathematical precision.”” (Tuilaepav. California, supra, 512 US.at 973, quoting Walton v. Arizona (1990) 497 U.S. 639, 665, 110 S.Ct. 3047, 111 L.Ed.2d 511.) Thus, the lack of precise definitions or explanations does not render an instruction vague, as evidenced by the numerouscapital sentencing factors that have been upheld against vagueness challenges. (See, e.g., id. at p. 974.) Indeed, the United States Supreme Court hasstatedthat states can adopt“capital sentencing processesthat rely upon the jury .. . to exercise wide discretion”andthatstates have “considerable latitude in determining how to guide the sentencer’s decision” in regards to a 28. Although appellantattempts to avoid this conclusion byciting to Arnold v. State (Ga. 1976) 224 S.E.2d 386 and State v. David (La. 1985) 468 So.2d 1126 (AOB 307-308), neither case involves the phraseat issue here and are, therefore, inapposite. 114 defendant’s prior criminal activities. (/d. at pp. 974, 977.) Because the instruction in this case was phrased in “conventional and understandable terms,” appellant’s vagueness challenge must be rejected. (/d. at p. 976.) B. The Instruction Was Not Erroneous And Did Not Violate Any State-Created Liberty Interest Appellant contendsthatthe addition of the phrase “involved in”to the second sentence ofCALJIC No.8.87, as read to the jury, violated state law and thereby also deprived him ofa state-created liberty interest. (AOB 309-313.) These arguments must be rejected. Whena defendantargues that an instruction is erroneous, an appellate court reviewsthe instruction to determine “howit is reasonably likely the jury understood the instruction, and whether the instruction, so understood, accurately reflects applicable law.” (People v. Raley (1992) 2 Cal.4th 870, 899; see, e.g., People v. Fierro (1991) 1 Cal.4th 173, 251-252.) As appellant concedes (AOB 310), this Court has also held that under Penal Code section 190.3, subdivision (b), a jury can considerprior violent or forceful activity in which the defendant “participated as an actual perpetrator or in some other capacity.” (People v. Ray, supra, 33 Cal.4th at p. 351; see People v. Bacigalupo, supra, 1 Cal.4th at p. 137; People v. Hayes, supra, 52 Cal.3dat p. 633.) The instruction, as read by the trial court, adequately conveyed this concept. The word “involve” has been defined as meaning “to engage as a participant.” (Merriam Webster’s 10th New Collegiate Dict. (1997) p. 617.) Thus, the use of the phrase “involved in” accurately conveyed that appellant had to be an activeparticipant in the crimes and in no way broadened whatthe jury could consider in aggravation under Penal Codesection 190.3, subdivision (b). Moreover,the oral instruction was significantly similar to one that has been 115 deemedproperby this Court. (People v. Kipp (2001) 26 Cal.4th 1100, 1138; cf. People v. Pinholster (1992) 1 Cal.4th 865, 954, fn. 15.) Thus, the instruction was correct. Because the instruction was proper, there was no violation of a state- created liberty interest. (See People v. Frye (1998) 18 Cal.4th 894, 1026.) Moreover, this Court has rejected “the notion that factor (b) created a liberty interest.” (People v. Hardy (1992) 2 Cal.4th 86, 206.) Appellant’s claim must further be rejected because hehasfailed to explain how this Court’s precedent regarding the evidence “is the equivalent of a guarantee of a procedural right based on state law.” (People v. Boyette (2002) 29 Cal.4th 381, 419, fn. 6.) “A contrary holding would convert all incorrect rulings by ourtrial courts into constitutional error.” (Jbid.) Thus, appellant’s liberty-interest argument must be rejected. Assuming arguendothatthe instruction was erroneous, reversal is not required becausea different result was not reasonablypossible. (See People v. Carter, supra, 30 Cal.4th at p. 1221.) First, there was only a minor discrepancy between the written instructions and the oral instructions, and a minor misreadingofan instruction is harmless when the written instructions received bythe jury are correct. (People v. Prieto, supra, 30 Cal.4th at p. 255; People v. Box, supra, 23 Cal.4th at p. 1212.) In the case at bar, the jury was given a written versionofthe instructions during the guilt phase (RT 2930); therefore, it is likely that they also received a written version ofthe instructions during the penalty phase. Thus, the discrepancy between the oral and written versions of CALJIC No. 8.87 was harmless. The error wasalso harmless because defense counsel emphasized during closing argument that the jury should not “blame” appellant for any acts committed by other people. (RT 3470-3474.) Thus, counsel emphasized that the prior acts of violent conduct could not be used as aggravating factors 116 becausethe evidence did not show that he had committed the murder ofMoore or the other offenses. In light of these arguments, any error was harmless. Therefore, appellant’s claim must be rejected. C. Appellant Has Waived His Contention That He Did Not Receive Proper Notice Of The Court’s Alteration Of CALJIC No. 8.87; Moreover, There Was No Indication That Appellant Had Not Received The Proper Notice Appellant contendsthat he did not receive adequate notice that the court would instruct the jury with an “involved in” theory of culpability and that this deprived him ofthe effective assistance of counsel because his attorney was unable to address this theory during the penalty phase. (AOB 317-318.) Appellant’s claim mustfirst be rejected because he waivedit by failing to seek leave to reopen his closing argumentor the evidence portion of the penalty phaseto address this allegedly new theory of culpability. (See People v. Kipp (2001) 26 Cal.4th 1100, 1131-1132; People v. Bishop (1996) 44 Cal.App.4th 220, 235.) The claim mustalso be rejected on the merits. As noted previously, the instruction was accurate. Moreover, the modification ofCALJIC No. 8.87 was “de mininis” and did not change“the thrust of the instruction nor undercut the defense argument.” (People v. Kronmeyer (1987) 189 Cal.App.3d 314, 341; see also People v. Kipp, supra, 26 Cal.4th at p. 1131; People v. Box (2000) 23 Cal.4th 1153, 1212; People v. Bishop, supra, 44 Cal.App.4th at pp. 234-235.) Becausethe instruction was accurate and the changes were only minor, counsel had received adequate notification regarding the instruction, which is most clearly shownbythe fact that “defense counsel here raised no claim of surprise whatsoever.” (People v. Lucas (1997) 55 Cal.App.4th 721, 739; see also People v. Kipp, supra, 26 Cal.4th at p. 1131; People v. Box, supra, 23 Cal.4th at pp. 1211-1212.) 117 Even if counsel had not received adequate notification, appellant cannot prevail becausehe has not adequately demonstratedthat defense counsel would have changed his closing argument or his penalty phase strategy if he had known earlier that the trial court would alter CALJIC No. 8.87 as it did. (People v. Bishop, supra, 44 Cal.App.4th at pp. 234-235.) He has alsofailed to explain “how the defense strategy was significantly affected” by the alteration in CALJIC No. 8.87. (People v. Kipp, supra, 26 Cal.4th at p. 1131; People v. Box, supra, 23 Cal.4th at p. 1212.) Forall of these reasons, any failure to adequately notify counsel was harmless. (People v. Daniel (1983) 145 Cal.App.3d 168, 175.) Appellant attempts to avoid this conclusion by again comparinghis case to Sheppard v. Rees, supra, 907 F.2d 1234. (AOB 314-315.) However, California and the Ninth Circuit have “uniformly viewed Sheppard narrowly and limited it to its facts.” (People v. Lucas, supra, 55 Cal.App.4th at p. 738.) Thecase atbar is factually dissimilar to Sheppard. “Tellingly, and unlike the defense counsel in Sheppard whostrenuouslyprotested his surprise at a newly introduced felony-murdertheory ... , defense counsel here raised no claim of surprise whatsoever.” (People v. Lucas, supra, 55 Cal.App.4th at p. 739; see People v. Box, supra, 23 Cal.4th at pp. 1211-1212.) Thus, appellant’s reliance on Sheppard“is misplaced.” (People v. Box, supra, 23 Cal.4th at p. 1212.) As such, appellant’s claim mustbe rejected. D. The Resulting Death Sentence Did Not Violate The Eighth Amendment Appellant contends that CALJIC No.8.87, as read by the trial court, violated his Eighth Amendmentrightto a reliable penalty phase determination. (AOB 317-318.) Under the Eighth Amendment, reliability is achieved when the death verdict has been returned after the jury has received proper 118 instructions. (People v. Jenkins (2000) 22 Cal.4th 900, 1044.) Because, as shown above, the instruction was proper and any error was harmless, appellant’s Eighth Amendmentrights were not violated. (People v. Benavides (2005) 35 Cal.4th 69, 100; People v. Cole (2004) 33 Cal.4th 1158, 1212, fn. 14; People v. Lewis (2001) 26 Cal.4th 334, 371; People v. Jenkins, supra, 22 Cal.4th at p. 1044.) XII. THE INSTRUCTIONS ON THE AGGRAVATING FACTORS WERE PROPER Appellant contends that the penalty phase instructions violated his constitutional rights becausethey did not require the jury to unanimously agree as to the aggravating factors. (AOB 319-328.) However, this Court has repeatedly held that juror unanimity is not required for the aggravating factors. (People v. Panah (2005) 35 Cal.4th 395, 499; People v. Horning (2004) 34 Cal.4th 871, 913; People v. Brown (2004) 33 Cal.4th 382, 402.) Recent decisions by the United States Supreme Court in Ring v. Arizona (2002) 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 and Blakely v. Washington (2004) __ US. _, 124 S.Ct. 2531, 159 L.Ed.2d 403, have not changed this conclusion. (See People v. Stitely (2005) 35 Cal.4th 514, 573; People v. Panah, supra, 35 Cal.4th at p. 499; People v. Morrison (2004) 34 Cal.4th 698, 730; People v. Griffin (2004) 33 cal.4th 536, 595; People v. Brown, supra, 33 Cal.4th at p. 402; see also People v. Cox (2003) 30 Cal.4th 916, 972.) Moreover, the failure to require unanimous agreement on the aggravating factors doesnotlead to an unreliable sentencing determinationthat violates the Eighth Amendment. (See People v. Jackson (1996) 13 Cal.4th 1164, 1246; People v. Raley (1992) 2 Cal.4th 870, 910.) Thus, appellant’s claim must be rejected. 119 XIV. THE INSTRUCTIONS PROPERLY GUIDED THE JURY’S DISCRETION Appellant contendsthatthe penalty phaseinstructionsfailed to properly guide the jury’s discretion becausetheyfailed to delete inapplicable sentencing factors, they failed to specify the aggravating and mitigating circumstances, and they contained factors that were vague. (AOB 329-330.) However, as appellant concedes (AOB 330), this Court has repeatedly rejected such assertions. (People v. Stitely, supra, 35 Cal.Ath at p. 574; People v. Panah, supra, 35 Cal.4th at pp. 499-500 People v. Monterroso (2004) 34 Cal.4th 743, 796; People v. Yeoman (2004) 31 Cal.4th 93, 164; People v. Hughes (2002) 27 Cal.4th 287, 404; People v. Box (2000) 23 Cal.4th 1153, 1217.) Appellant offers no compelling reason for this Court to reconsider these decisions. Therefore, appellant’s claim mustbe rejected. XV. TRIAL COUNSEL WASNOTINEFFECTIVE After the jury recommendeddeath, the trial court appointed Douglas Otto to assist appellant’s attorney, Ronald LeMieux, in preparing a motionfor new trial. Otto was assignedto investigate whether LeMieux was ineffective in representing appellant andto prepare a motion for newtrial on the grounds of ineffective assistance oftrial counsel. (RT 3529-3550.) Otto eventually prepared a motion for new trial which alleged that LeMieux wasineffective. This motionfor newtrial contained declarations from LeMieux,appellant, and others involved in the case. (CT 470-591.) LeMieux also prepared a motion for new trial which alleged othererrors that occurred duringthetrial. (CT 463- 469, 592-710.) After an extensive hearing in which LeMieux, appellant, and several other witnessestestified, the trial court denied appellant’s motion for 120 newtrial. The trial court found that LeMieux had been competent and that a different result had not been reasonably probable. (RT 4177-4178.) On direct appeal, appellant again contends that his attorney was ineffective. (AOB 331-491.) For the reasons that follow, these arguments must be rejected. — A. Trial Counsel Was Qualified To Represent Appellant Appellant contendsthathis attorney was ineffective because he was not qualified to represent appellant in a capital case. (AOB 334-349.) These arguments are not supported bythe record. 1. Counsel Had The Necessary Skills, Knowledge, And Resources To Handle A Capital Case And ThereIs Nothing In The Record To Indicate That He Sought Inadequate Compensation Appellant contends that his trial attorney was ineffective because he lacked the legal knowledge andskills to handle a capital trial, lacked an office staff and basic legal tools, and failed to seek adequate compensation. (AOB 334-337, 340, 348-349.) These arguments must be rejected. ~ a. Relevant Facts And Proceedings In a declaration and during the hearing on the motion for new trial, appellant’s trial attorney, Ronald LeMieux, stated that he had predominantly practiced criminal law since becoming a lawyer in 1971. (RT 3648.) Although he had handledcapital cases prior to appellant’s case, a penalty phase was never held in any of those cases because the defendants were either acquitted or the cases ended in a plea. (RT 3649-3650, 3655-3656, 3661; CT 562-563, 565.) Thus, prior to the instant case, LeMieux had nevertried a penalty phase in a 121 criminalcase,although he may have prepared for a penalty phase. (RT 3663, 3758.) LeMieuxalsotestified that he had not attended any coursesor lectures on capital case work, but had done some reading on the subject. (RT 3663- 3664.) He owned manuals created by the California Attorneys for Criminal Justice and California Public Defender’s Association and had a subscriptionto, and regularly read, the Daily Journal. (RT 3663-3664, 3666.) LeMieuxdid not belong to any professional organizations and did not receive any publications from defense organizations. (RT 3668-3669.) Atthe time of appellant’s trial, LeMieux waspracticing out ofhis house and had a small library of materials. (RT 3664-3665, 3667.) He would goto the local law library for anythingelse that he needed, including publications by defense-related organizations. (RT 3664-3667, 3669.) LeMieuxdid not have a secretary, a paralegal, or any kind of support staff. (RT 3667-3668.) LeMieux had “done somereading and inquiry and preparation”forthe penalty phaseofthetrial. He did notbelieve the penalty phase required “any great deal of expertise or experience”and he had “a pretty good idea”ofwhat evidence the prosecutor wouldpresentat the penalty phase. (RT 3760.) In regards to payment, LeMieux’s “customary practice” was to refrain from quoting a fee until he understood the complexity ofthe case. (RT 3723- 3724.) LeMieux and appellant may haveinitially discussed a fee of $15,000 before settling on a fee of $25,000,at appellant’s request. (RT 3723-3724; CT 656.) LeMieux wasretained on February 6, 1990, and made his first court appearance on February 22, 1990. (RT 3700, 3723.) In June 1991, LeMieux was concernedthat he could not complete his trial preparation while conducting voir dire. Asa result, he asked appellant’s family for an additional $10,000 so that he could hire a second attorney and pay for any investigative costs. (RT 3725.) LeMieux eventually hired McCannto conductjury selection. (RT 3725-3726; CT 567-568.) 122 Priorto the penalty phase, LeMieux may have asked appellant’s family for another $5,000. He had askedfor the additional money inthe past because the trial was becoming “much longer and much more complicated”than he had originally anticipated. (RT 3763-3764, 3802-3803.) b. Trial Counsel Was Not Ineffective The applicable law pertaining to ineffective assistance of counsel claims is set forth in the two-part test articulated by the United States Supreme Court in Strickland v. Washington (1984) 466 U.S. 668, 684-687, 104 S. Ct. 2052,80 L. Ed. 2d 674. Underthis test, a defendant must show thathis trial counsel’s performancefell below an objective standard ofreasonableness. (Stricklandv. Washington, supra, 466 U.S. at 687-688; People v. Benavides (2005) 35 Cal.4th 69, 93.) A defendant mustalso affirmatively prove that “there was a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Benavides, supra, 35 Cal.4th at p. 93.) In the caseat bar, appellant’s claim mustfirst be rejected because he has failed to show that his attorney was ineffective. Although LeMieux had not previously handled a death penalty case that resulted in a penalty phase,this does not necessarily mean that he was ineffective. (See People v. Wright (1990)52 Cal.3d 367, 412-413.) As this Court has previously stated, the admission of an attorney to the state bar establishes that the state has deemed him competent to practice law in all types of actions. (People v. Majors (1998) 18 Cal.4th 385, 430-431.) Thus, when a defendantis represented by a licensed attorney, there is a presumption in favorofthe effectiveness of that attorney. (Id. at p. 431.) Appellant has not rebutted that presumption. LeMieux was an experienced attorney, who had focused on criminal law since becoming a 123 lawyer in 1971. (RT 3648.) During that time, he may have handled other capital cases, although a penalty phase was neverheld in those cases. (RT 3649-3650, 3655-3656, 3661; CT 562-563, 565.) Appellant has not pointed to any special expertise that LeMieux neededin order to handle the penalty phase of a capitaltrial, nor has he identified how the procedures or methods used in a penalty phase differ in any material respect from any other type oftrial. Although LeMieuxtestified that he had not attended any coursesorlectures on capital cases, he owned several defense manuals, regularly read the Daily Journal, and had done somereading on capital litigation, as shown by his argumentto exclude certain evidence during the penalty phase ofthe trial. (RT 3160-3161, 3165, 3170-3172, 3663-3664, 3666, 3760.) Although appellant notes that LeMieux did not belong to any professional organizations (AOB 337), there is nothing to indicate that membership in those organizationsis a prerequisite to effective representation. Similarly, there is nothing to indicate that counsel’s desire to discuss a minor pointoff the record,orhis failure to give the prosecutora written list ofhis witnessesafter he had verbally given the information to the prosecutor, demonstrates that LeMieux did not adequately understandthe rules and proceduresrelated to capital cases. (RT 1266, 1901.) Thus, appellant has not demonstrated on this record that LeMieux lacked sufficient skill and knowledge to handle a capital case. Appellant attempts to avoid this conclusion by arguing that LeMieux had never handled a case that involved materials filling “more than a single banker’s box.” (AOB 337.) However, in context, LeMieux’s testimony was that the instant case contained a voluminous amount of materials, which took him hours to organize because they were “loosely dumped in a box,” nothing was indexed or cataloged, and the documents were not organized in any manner. (RT 3812, 3821-3822.) Thus, LeMieux’s statement regarding the volume of materials in no way indicated that he was not qualified to handle a 124 capital case. Appellant additionally argues that LeMieux wasineffective because he lacked the resources to handle a capital case. However, LeMieux hada library of materials at home and wentto a local law library for anything else that he needed. (RT 3664-3667, 3669.) Although LeMieux did not have secretary, a paralegal, or any kind of support staff, there is nothing to indicate that these are prerequisites to effective representation. Moreover, LeMieux had a “hands- on approach”andpreferredto do the work himselfbecause it gave him a “much better feeling for the case.” (RT 3667-3668, 3810-3812.) Thus, appellant has failed to demonstrate that LeMieux wasineffective. Appellant further argues that LeMieux wasineffective for failing to seek adequate compensation from appellant. (AOB 348-349.) However, the record does not support this contention. LeMieuxtestified that it was his “customary practice”to refrain from quoting a fee until he understood the complexity ofthe case. (RT 3723-3724.) Thus, LeMieux did not calculate a fee until after he considered the case and discussed the matter with appellant. (RT 3723-3724.) Although LeMieux may have later asked appellant’s family for additional funds (RT 3724, 3763-3764, 3802-3803), there is nothingto indicate that this constituted deficient performance. Appellanthas also failed to demonstrate how any ofLeMieux’salleged deficiencies resulted in any prejudice to him. Appellant’s argument that LeMieux’s inadequate fee contributed to his deficient performanceis based on nothing more than speculation. Moreover, there is nothing in the record to indicate that LeMieux’s lack of an extensive library at home,failure to join professional organizations, or any other alleged insufficiency in LeMieux’s background adversely affected appellant’s case in any way. Therefore, his claim must be rejected. (See People v. Maury (2003) 30 Cal.4th 342, 389; People v. Catlin (2001) 26 Cal.4th 81, 166.) 125 2. Trial Counsel Did Not RenderIneffective Assistance When He Misstated His Experience In Capital Cases Appellant contends that LeMieux wasineffective for misrepresenting his capital experience. (AOB 338-340.) However, appellant has failed to demonstrate that his attorney was ineffective in this regard. a. Relevant Facts And Proceedings While discussing whether appellant would move to represent himself, LeMieuxstated,“It has been my experience in death penalty cases - - and I’ve done a numberofthem in the last 22 years - - after the verdict is in, sometimes people do change their minds.” (RT 3131.) During LeMieux’s closing argument, the prosecutor obj ected to LeMieux’s statement that appellant woulddie in prison. (RT 3441.) During a sidebar discussion, LeMieux stated, “And the previous arguments I have made in death penalty cases where my client has been convicted I’ve incorporated this part of the argument that I’m now going into without objection, and in the copies of arguments that other experienced attorneys have used and havebeenpublished,thatis a pretty traditional beginning.” The court agreed. (RT 3443.) Later, when LeMieux attempted to compare appellant’s crimesto that of the Nightstalker, the prosecutor objected. (RT 3451.) LeMieux explained that he was merely arguing thatif appellant’s crimes did not compare to other acts ofbrutality, the jury should vote forlife in prison. LeMieuxstated, “That is an argument that I’ve made before and I’ve heard other attorneys make before. You readit in the publications on howto present final arguments.” (RT 3457.) During a hearing on a motion for new trial, LeMieuxtestified thatat the time he made the statements regarding his experiencein capital cases, he knew 126 the instant case washis first death penalty case. (RT 3865-66.) LeMieux also stated that in noncapital cases he had handled, he had compared the defendant’s crimes to otheracts of brutality. (RT 3866.) b. Counsel Was Not Ineffective The American Bar Association Model Rules of Professional Conduct and the California State Bar Rules ofProfessional Conductprohibit an attorney from intentionally making a false statement to a court. (People v. Gray (1998) 66 Cal.App.4th 973, 991.) In this case, LeMieux did notintentionally make a false statement whenhetold the court that, in previous cases, he had compared a defendant’s crimesto otheracts ofbrutality. (RT 3457.) LeMieux nevertold the court that he had previously made such comparisonsin death penalty cases and his remarks cannotbe interpreted as such. As LeMieuxlater explained, he had been merely referring to his noncapital cases when he madehis remarks. (RT 3457, 3866.) Thus, appellant has failed to demonstrate that his attorney acted in a deficient manner. To the extent that any of the other statements were false, appellant has not shown that they necessarily constituted constitutionally deficient performance. Thus,his claim should berejected. (See People v. Gray, supra, 66 Cal.App.4th at p. 991.) Appellant also cannot prevail because he has not demonstrated that he was prejudiced in any way by the remarks. For example, the comment regarding whether appellant would represent himself merely indicated that defendants often vacillated on the self-representation issue. (RT 3131.) There is nothing to indicate that the statement affected the outcome of the trial or appellant’s self-representation motion in any way. Likewise, there is nothing to indicate that the outcomeof appellant’s trial was affected by LeMieux’s statementthat he had arguedin othercapital cases that the defendant would die 127 in prison. In fact, the trial court agreed that LeMieux’s argument was proper. (RT 3443.) Finally, the record does not show thatthe outcome ofthe penalty phase was in any way affected by counsel’s statement that he had previously contrasted a defendant’s crimes from otherbrutal acts. Therefore, appellant’s claim should be rejected. (See People v. Wright, supra, 52 Cal.3d at p. 412.) 3. Trial Counsel Hired A Qualified Attorney To Conduct Jury Selection Appellant argues that LeMieux wasineffective for hiring an unqualified attorney, Douglas McCann, to conduct jury selection. (AOB 340-348.) Appellanthasfailed to show thathis attorney was ineffective. LeMieux hired McCann because he had previously worked with McCann, regarded him “highly,” and thought that McCann would do a “very good job”during jury selection because McCann had a “brilliant young mind,” was a “fast thinker,” and hadan “agreeable personality.” (RT 3726.) Although McCannhad never handled a death penalty case before, he had previously worked for the Los Angeles County Public Defender’s Office and had handled a number offelony cases as a solo practitioner specializing in criminal law. At least two of these cases were murder cases, and onecase involved a conspiracy to commit murder. (CT 562-563.) Prior to appellant’s case, McCannalso conducted research on capital case work andtalked to an attorney who had handled several death penalty cases. (CT 563.) LeMieux also gave McCann materials on voir dire, discussed voir dire with McCann,and “wentoverthe typical type of questions” that are asked during voirdire in a capital case. (RT 3726.) Thus, McCann had sufficient knowledge and skills to conduct the jury selection in this case. Therefore, LeMieux wasnotineffective in hiring McCann.” (See People v. 29. Appellant notes that McCann was subsequently disbarred. (AOB 342.) However, there is no support for this in the record. Moreover, 128 Montiel (1993) 5 Cal.4th 877, 911.) Appellant attempts to avoid this conclusion by arguing that McCann showedhis “ignorance” during jury selection. (AOB 342-345.) However,the record shows that McCann intelligently participated in the jury selection process. He questioned over 100 prospective jurors over the course of 14 days. (CT 234-235, 240-247, 258-259, 265, 267.) He opposedseveral challenges madebythe prosecutor based on the juror’s views on capital punishment, he challenged at least five jurors for cause, and he made three Wheeler motions. (RT 438, 655, 746, 803, 951, 957, 1000-1008, 1070, 1074, 1210, 1226, 1233.) Although appellant cites to several incidents that allegedly show McCann’s ignorance (AOB 343-344), these instances do not support his argument. For example, the question regarding why there could be a need for more than 206 potential jurors did not reveal any ignorancesince thetrial court admitted that it was “really hard to tell” how many potential jurors would be excused during Hovey voirdire. (RT 137.) Furthermore, McCann appeared to know that he would have 20 peremptory challenges and merely wanted “to think about” whether voir dire should stop after 100 jurors had been selected. (RT 220-221.) Finally, McCann’s confusion over the ““6-pack”or “twelve- pack” method did not show any confusion regarding the capital jury selection process, but merely indicated confusion with the prosecutor’s complicated explanation of how jury selection should proceed. (RT 1093-1094.) Thus, appellant has not demonstrated that McCann acted in anything other than a competent manner. (See People v.Bemore (2000) 22 Cal.4th 809, 835; People v. Freeman (1994) 8 Cal.4th 450, 485.) . Appellantdisagrees byfurther arguing that the “voir dire undertaken by disciplinary action against an attorney, standing alone, doesnotestablish that an attorney wasineffective. (See People v. Frye (1998) 18 Cal.4th 894, 996; People v. Sanchez (1995) 12 Cal.4th 1, 44; In re Johnson (1992) 1 Cal.4th 689, 700.) 129 McCann was... wholly deficient” because he confusedthejurors. (AOB 343.) However, this is not the case. At least one juror stated that he “pretty much followed” what McCann had said, and in at least one cited instance, any confusion may have stemmedfrom thetrial court’s statements. (RT 276, 342.) Moreover, any confusion was not caused by McCann but, as indicated by several juror responses, was instead caused by the complicated rules pertaining to the weighing of the aggravating and mitigating circumstances. (RT 535, 563.) As the prosecutor noted, the jurors’ confusion was “understandable considering this is the first time for them to bein this type of situation.” (RT 959.) Thus, McCann did not conduct voir dire in an incompetent manner. Appellantalso faults McCann forfailing to question the potential jurors about the aggravating evidence that would be used in the penalty phase.” (AOB 344-346.) However,the record showsthat McCann did not wantto refer to any aggravating evidencebecauseofthe possible effect it could have on the jurors during the guilt phaseofthe trial. (RT 464-471, 514-517.) Moreover, in light of McCann’s vigorous participation in jury selection, his decision to forego questions in certain areas should be deemedtactically sound. (See People v. Bemore, supra, 22 Cal.4th at p. 835; People v. Lewis (1990) 50 Cal.3d 262, 290.) Finally, appellant’s claim mustfail because he has not demonstratedthat he wasprejudiced by McCann’sallegedly incompetent representation during jury selection. Nothing in the record indicates that the jury was biasedorthat it is reasonably probable that a different jury would have been morefavorably 30. Appellantcites to this Court’s decision in People v. Cash (2002) 28 Cal.4th 703, to buttress his argument. (AOB 344-346.) However, Cashis inapposite. In Cash,thetrial court erred by notallowing the parties to question the potential jurors about mitigating or aggravating evidence. (People v. Cash, supra, 28 Cal.4th at pp. 719, 721-722.) Cash in no way indicates that an attorney is ineffective if he chooses notto ask potential jurors any questions regarding the aggravating evidencethat could be used during a penalty phase. 130 disposed to appellant. (People v. Freeman, supra, 8 Cal.4th at p. 487; see People v. Mendoza (2000) 24 Cal.4th 130, 164-165.) Therefore, appellant’s claim that LeMieux wasineffective for hiring McCann mustbe rejected. B. Counsel Was Physically And Mentally Able To Represent Appellant Appellant contendsthat his attorney was physically and mentally unable to effectively represent him because he wassuffering from a medical condition, had family problems, and was under investigation bythe state Bar. (AOB 350- 358.) This argument mustbe rejected because the record showsthatat the time oftrial, counsel was physically and mentally capable of representing appellant in an effective manner. 1. Relevant Facts And Proceedings In a declaration filed with appellant’s motion for new trial and during a hearing on that motion, LeMieuxstated that in 1989 or 1990, he was notified that he was being investigated by the California State Bar. (RT 3680.) The investigation centered on whether LeMieux had failed to pay various medical liens resulting from the settlement of personal injury actions. (CT 566.) LeMieux hadhired an attorney to represent him duringthe bar investigation and had to assist the attorney during appellant’s trial. (RT 3681-3682.) The investigation was stressful situation to LeMieux and may have “negatively affected” his representation of appellant2” (RT 3682-3683; CT 566-567.) Atthe time of appellant’s trial, LeMieux waspracticing out ofhis house because he wantedto “gradually leave the practice oflaw.” Hefelt “burned out 31. The Bar eventually concludedthat an agent ofLeMieux had “stolen the money.” (RT 3681; CT 566.) The Bar also found that LeMieux had negligently entrusted the funds to the agent rather than placing the money into a client trust account. (RT 3680-3681; CT 566.) 131 psychologically and emotionally” and did not find his job rewarding. (RT 3664-3665, 3667, 3671.) LeMieux stopped advertising for his services, stopped doing civil work, and began to reject cases. (RT 3673.) During appellant’s trial, LeMieux was under “considerable stress” because he had not taken a vacation since August 1980 and hadsole physical and legal custody of his two children. (CT 565.) LeMieuxlived with his children in Glendale while his second wife lived with their two sons and her father. (CT 566.) In September 1991, LeMieux leased a home in Malibu for his two children from his first marriage and his second wife and their children. LeMieux continued to live in Glendale. A “constant state of friction” soon developed between the children from LeMieux’s first marriage and LeMieux’s new family. LeMieux frequently had to drive from Glendale to Malibu to “mediate squabbles” between family members and would notreturn homeuntil 2:00 or 3:00 a.m. The “exhaustive schedule and conflict” meant that LeMieux was sometimes“ill-prepared in court, tired, and not sensitive to issues that were developing during the courseoftrial,” including the introduction of gang evidence and evidenceofappellant’s tattoos. (RT 3691-3693, 3747-3748; CT 569.) Atother times, LeMieux only got four or five hours of sleep because he would wake upat 3:00 or 4:00 a.m. and would be unableto fall asleep again. (RT 3688, 3690, 3816.) LeMieux would usethe time to prepare for that day’s court proceedings. (RT 3693.) . LeMieuxdid not take notes while in court because he had a tremorin his arms that rendered him unable to write. LeMieux wouldrely on his memory of the day’s testimony and would type a summary ofthe testimonyin the evening. (RT 3688-3689, 3804, 3859.) It had always been LeMieux’s practice to type out notes regarding that day’s testimony, and this practice had “never failed” 132 him. (RT 3804-3805, 3815-3816.) In addition, LeMieux knew that he would receive daily transcripts of the court proceedings. (RT 3805.) During trial, LeMieux hadan inability to concentrate for more thanfive to seven minutes and would periodically experience a “muddled feeling” where his mind would go “blank.” (RT 3689, 3698.) He also suffered from “panic attacks” that would occurat least once a week duringthe trial. (RT 3698.) After appellant’s trial, LeMieux handled some cases in which there were acquittals or in whichthe cases were dismissed pursuant to Penal Codesection 1385. (RT 3808-3809, 3814-3815.) At that time, LeMieux wasstill suffering from the same physical symptoms that he had during appellant’s trial. (RT 3809.) On July 13, 1992, nine monthsafter the jury returned the death verdict in the instant case, LeMieux suffered a breakdown and “passed out” while handling a casein federal court. (RT 3683-3684; CT 411, 566.) LeMieux saw a doctor, who diagnosed the problem as “anxiety depression”or “post trauma stress syndrome.” (RT 3684; CT 566.) LeMieux believed that he had been experiencing “anxiety depression disorder, post-traumatic stress disorder, burn- out, or other form ofillness for at least a year” andthatthe illness affected his ability to adequately represent appellant. (RT 3814; CT 566.) LeMieux did not believe that he had acted competently during appellant’s trial due to the “cumulative effects of all the stresses.” (RT 3699, 3805-3806, 3831-3835.) For example, because of his mental and physical state duringtrial, he did not object to the gang evidence duringthe guilt phase ofthe trial. (RT 3805-3806, 3831.) He also failed to object to Monique Williams’ testimony regarding the tattoos on appellant’s body. (RT 3831-3832.) 133 2. Lemieux’s Physical And Mental State Did Not Render Him Unable To Represent Appellant Appellantfirst contends that his counsel was ineffective because he had “serious mental and physical problems.” (AOB 351-355.) However, LeMieux’s actual performancein court belies this contention. LeMieux cross- examined witnesses, presented evidence, and appeared to be familiar with the facts of the case. In light ofhis performance,his testimony that he believed he was ineffective does not establish that his performance actually fell below prevailing professional norms. Significantly, the trial court believed LeMieux “did quite a competent job” and had been unaware that LeMieux “was going throughall ofthese problems.” (RT 3146-3147, 4177.) Moreover, LeMieux’s breakdowndid not occuruntil July 13, 1992, approximately nine monthsafter appellant had been convicted andthejury had recommended death. (RT 3683- 3684; CT 411, 566.) Although LeMieux may have beensuffering from some physical symptomsprior to July 13, these ailments did not render LeMieux unable to competently handle a case as shown bythefactthat, after appellant’s trial but prior to July 13, LeMieux handled some cases which resulted in acquittals or dismissals. (RT 3808-3809, 3814-3815.) Thus, LeMieux’s physical and mental state during appellant’s case did not adversely affect his performanceto such an extent that appellant was deniedthe effective assistance of counsel. (Cf. People v. Garrison (1989) 47 Cal.3d 746, 786-787 [although it was uncontested that defense counsel was an alcoholic during trial, ineffective assistance of counsel was not shown because counsel acted competently duringtrial]; cf. also Vealv. State (Ga. Ct. App. 2000) 531 S.E.2d 422, 427 [counsel was not ineffective although his health may have rendered him unable to hear or remember certain testimony]; Brimmer v. Tennessee (Tenn. Crim. App. 1998) 29 S.W.3d 497, 509-510 [counsel’s alcohol and drug abuse problemsdid not necessarily render him ineffective].) 134 Appellant attempts to avoid this conclusion by noting several occasions which allegedly demonstrate that LeMieux was unable to adequately represent him. These examples, however, do not demonstrate that LeMieux was ineffective. For example, LeMieux’s inability to take notes during trial did not adversely affect his performance because he followed his usual practice of typing notesat the endofthe evening,a practice that had never failed him. (RT 3688-3689, 3804-3805, 3815-3816, 3859.) Contemporaneousnote-taking was also unnecessary because LeMieux wouldreceive daily transcripts. (RT 3805.) LeMieux’s inability to get more than four orfive hours of sleep a nightdid not render him ineffective because he used the time that he was awake to prepare for that day’s court proceedings.” (RT 3688, 3690, 3693, 3816.) Although LeMieuxtestified that he would periodically experience a “muddled feeling,” there is no indication that this caused his performanceto fall below an objective standard of reasonableness. Appellant’s actions in regards to the motion for newtrial also fail to establish incompetence since, as the trial court noted, LeMieux’s points and authorities “were done well.” (RT 3560-3561, 4169.) Thus, appellant’s examples fail to show that LeMieux wasineffective. Appellant’s remaining examples are contradicted by the record. For example, appellant contendsthat the guilt phase proceedings were never held on a Friday due to LeMieux’s health problems. (AOB 351-352) Although LeMieux asked that court not be in session on oneparticular Friday due to “medical reasons” (RT 1260), there is nothing to indicate that he requested the other Fridays off due to health problems. Moreover, it does not appear that every Friday session was cancelled because ofLeMieux’shealth. For example, the court told the jury that it was canceling one Friday session becauseit had to 32. To the extent that LeMieux wastired during thetrial, he wasnot the only attorney who wasfatigued. At onepoint, the prosecutortold the court that he was “exhausted” and had been “sincethis thing started.” (RT 2442-2443.) 135 handle another courtroom. (RT 2393.) Appellant’s contention that LeMieux periodically requested breaks or that court endearly are also belied by the record. For example, LeMieux asked for a ten-minute break during his opening statement because he had made a mistake when looking at the clock. (RT 1309.) Whenherealizedhis error, he continued his opening statement for another 20 minutes. (RT 1318.) LeMieux’s requestthat closing arguments be done on a Mondaywasnotbased on any health problems, but was merely made becausehe would not have more than three or four hours in the evening to prepare a closing argument for the next day. (RT 2893.) Although LeMieuxaskedthe court to “call[] it quits” at 3:15 or 3:20 on September 21, 1991 (RT 2168), he decided to begin his cross- examination of Sazo. (RT 2170-2171.) Approximately an hourlater, LeMieux asked if the proceedings could be halted for the day because the next segment of his cross-examination would be “lengthier” and hedid not “wantto breakit up.” (RT 2197.) Thus, appellant’s cited examples fail to demonstrate that LeMieux’s health rendered him unable to competently represent appellant. Appellant has also failed to show that LeMieux’s family problems rendered him incompetent. Despite sometimes needing to mediate family disputes, LeMieuxstill had time to prepare for each day’s proceedings. (RT 3693.) Although LeMieux contendedthathis family problems caused him to fail to object to evidence regarding gangs and appellant’s tattoos (CT 569), the record shows that he did object to testimony regarding appellant’s gang membership. However,thetrial court overruled the objection andalso allowed testimony regarding appellant’s tattoos. This testimony was not necessarily harmful to appellant since Williams thentestified that appellant was not a gang member. (RT 2001-2006.) Duringthe penalty phase, LeMieux also vigorously arguedthat the court should bar Magnuson’s testimony regarding appellant’s gangaffiliation. (RT 3212-3233.) The court decided to allow Magnuson’s 136 testimony with certain restrictions. (RT 3232-3233.) As noted previously, LeMieux’s performancein court led thetrial court to believe that LeMieux “did quite a competentjob” andleft it unaware that LeMieux “was going throughall of these problems.” (RT 4177.) Thus, appellant’s family situation did not cause him to act in an ineffective manner. Appellant hasalso failed to show that the state bar investigation against LeMieuxresulted in ineffective performance during appellant’s trial. Although LeMieux had to spend sometimeassisting the attorney who wasrepresenting him in that matter (RT 3681-3682), appellant has not pointed to any specific instances in which the state bar investigation resulted in deficient performance in the instant case. (See People v. Frye, supra, 18 Cal.4th at p. 996; People v. Sanchez, supra, 12 Cal.4th at p. 43.) Thus,appellant has notestablished that his attorney acted in an incompetent manner. Because appellant has failed to show that his attorney’s mental and physical ailments, family problems, and state Bar investigation negatively affected his performance,he hasalso failed to demonstrate that his case was prejudiced in any way. Therefore, his claim mustbe rejected. C. Trial Counsel Adequately Prepared For Trial Appellant contendsthat his attorney did not adequately prepare fortal. (AOB 358-427.) As will be shown below, these arguments must berejected. 1. Counsel Adequately Reviewed Documentary Evidence Appellant contends his attorney was ineffective because he did not adequately review thecase file he obtained from appellant’s prior attorney,he did not obtain the charging documentsofappellant’s coperpetrators, he did not review the murder books, and he did not obtain documentary evidence which would showthat appellant received victim compensation fundsafter being shot. 137 (AOB 362-368.) These arguments are without merit. a. Relevant Facts And Proceedings On September 11, 1991, prior to trial, LeMieux did not attend a court proceeding that was scheduled for filing motions in limine because he had no motionsto file. (RT 1095.) The prosecutor noted that he had made the murder booksavailable that day so that LeMieux would have an opportunity to review them and ensure “he hadall items.” The prosecutor noted that this was the secondtime that he had made the murderbooksavailable and that LeMieux had also failed to appear when theprosecutorfirst made the books available. (RT 1096.) The prosecutoralsostated that he had previously photocopied a “great number” ofdocuments for LeMieux,suchastranscripts ofpleas by appellant’s coperpetrators, probation reports, and “numerousother items.” (RT 1097.) Attrial, during cross-examination of Linton, LeMieux asked if Linton was awarethat the death penalty had been possible if the jury had convicted him offirst-degree murder and foundthe special-circumstanceallegationsto be true. The prosecutor objected. (RT 1706.) During a sidebar conference, LeMieux explained that he had asked the prosecutor on “several occasions” for copies of the information in Linton’s case. (RT 1707-1708.) LeMieux had been repeatedly told by the prosecutor that it was not necessary to obtain the documents because “we all know what these people are charged with.” LeMieux assumed that everyone was charged with special circumstances because appellant was charged with special circumstances. (RT 1707-1709.) In a declaration and during the hearing on a motion for new trial, LeMieux stated that he retrieved the case records from appellant’s prior attorney, Clay Jacke, approximately 30 daysafter substituting in as appellant’s attorney. (RT 3700, 3723.) LeMieux had not previously worked on a case that had “so much material to deal with.” He received two boxesofmaterials from 138 Jacke and “it was a maze.” It took LeMieux “hours” to place documents in chronological order because Jacke’s files were “a mess” and werejust “loosely dumpedin a box.” (RT 3812, 3821-3822.) The records were not “organized in any fashion whatsoever, (RT 3821.) From February 1991 through July 1991, he reviewed the materials [nothing was indexed, nothing wascataloged.” in the file, summarized those materials, “reviewed all ofthe police reports in the matter,” and began trial preparation. (RT 3701-3702; CT 567.) LeMieux eventually spent over 200 hours preparing for the case and organizedthetrial materials into 12 notebooksto assist him. (RT 3812, 3789-3790.) LeMieux had obtained Jacke’s copy of the murder book asearly as February 1991. (RT 3696.) At some point just prior to trial, LeMieux reviewedthe police department’s murder booksin the case. Although LeMieux missed a court appearance when the murder books were produced, he subsequently compared the materials he had with the police department’s murder book and discoveredthat he had been givenall ofthe documents. (RT 3695, 3711-3712.) LeMieux obtained the tapes of statements made by appellant’s coperpetrators and paid for transcriptions of those tapes. He also obtained transcripts related to the cases of appellant’s coperpetrators, including transcripts of their preliminary hearings, guilty pleas, and sentencing hearings. (RT 3730, 3819-3820.) . Appellant did not inform LeMieux about Tony Moreno, a possible defense witness, until after LeMieux received an FBI report regarding Moreno during voir dire in mid-August. (RT 3735-3736, 3739; CT 567.) Appellant had not previously mentioned that he had a relationship with Moreno. (RT 3801.) LeMieux attempted “both personally and through an investigator” to subpoena Moreno, but was unable to do so. (RT 3749; CT 570.) 139 b. Counsel Was NotIneffective Before an attorneyacts or refusesto act, he must makea rational and ~ informed decision based on adequate investigation and preparation. (Jn re Lucas (2004) 33 Cal.4th 682, 721-722.) Thus, counsel has a duty to make a reasonable investigation or to make a reasonable decision that makes a particular investigation unnecessary. (/d. at p. 722.) In the case atbar, counsel adequately reviewed the documentsrelated to the investigation ofthe murders ofBarron and Thomas. For example, LeMieux spent over 200 hours preparing for the case. (RT 3812.) Although hedid not retrieve the file from Clay Jacke until approximately 30 daysafter substituting in as appellant’s attorney, he spent approximately five months organizing Jacke’s file, reviewing the materials in the file, summarizing those materials, and readingall ofthe police reports. (RT 3700-3702, 3723, 3812, 3821-3822; CT 567.) Moreover,there is nothingto indicate that the 30 days LeMieux took to retrieve the file in any way hampered his preparations for trial. Thus, appellant hasfailed to demonstrate that LeMieux acted in a deficient manner in regardsto the retrieval and review of Jacke’s case file. The same could be said in regards to LeMieux’s actions involving the murder book. LeMieux obtained Jacke’s copy of the police murder book as early as February 1991, well in advance oftrial. (RT 3696.) Although he missed a court appearance whenthe police department’s copy of the murder book was produced, he subsequently reviewed the police murder book and discovered that he had indeed received all of the necessary materials. (RT 3695.) As-a result, his review of the police murder book justprior to trial was not ineffective because he had previously seen and read the documents contained in the murder book received from Jacke. (RT 3711-3712.) Appellant has also failed to demonstrate that counsel wasineffective in regards to obtaining the charging documents of Linton, Lee, and Cyprian. 140 Appellant does not specify how these documents would haveassisted appellant. during trial or why these documents were needed. Moreover, LeMieux had _ asked the prosecutor on “several occasions” for copies of the charging documents for the three men and concluded that everyone had been charged with special circumstances based on the prosecutor’s statements. (RT 1707- 1709.) LeMieux’s actions in regards to appellant’s accomplices cannot be deemed incompetent, especiallyin light ofhis diligent efforts to obtain the tape- recorded statements made by the accomplices andthe reporter’s transcripts from the accomplices’ cases. (RT 3730, 3819-3820.) Appellant has also failed to demonstrate that LeMieux acted incompetently in regards to investigating Moreno. Appellant specifically contends that Morenoassisted appellant in obtaining victim compensation funds after appellant was shot and that LeMieux should have obtained documentsrelated to these funds. (AOB 367-368.) However, the record does not indicate why LeMieux failed to do so or that any such records actually existed. (RT 3922-3933.) Therefore, this portion ofthe claim mustbe rejected. (People v. Hernandez (2004) 33 Cal.4th 1040, 1053; People v. Maury (2003) 30 Cal.4th 342, 389; see People v. Holt (1997) 15 Cal.4th 619, 704.) Moreover,it is possible that LeMieux did not obtain the records because he reasonably decided to spend his time attempting to contact Moreno and preparing fortrial in other ways. Thus, counsel wasnotineffective in regards to Moreno.2” 33. Appellant also contendsthattrial counsel wasineffective for failing to provide the prosecutor with certain information, such as a witnesslist, witness statements, and reports by any defense investigators. (AOB 368.) However, counsel acted adequately. Although LeMieuxinitially failed to give the prosecutor a written witnesslist, he agreed to do so and had previously informed the prosecutor that he would call appellant, Moreno, and Williams. (RT 1901.) LeMieux did not have any witness statements to give the prosecutor and had not received any reports by investigators. LeMieux assured the 141 Appellant’s claim mustalso be rejected because he has failed to specify. how his case was harmed by counsel’s alleged failure to timely review Jacke’s . case file, review the police department’s copy of the murder book, obtain the charging documents for appellant’s accomplices, or obtain documentsrelated to any compensation that appellant received. Because he has failed to demonstrate the requisite prejudice and becausenoprejudice is evident from the record, his claim must berejected. (People v. Majors (1998) 18 Cal.4th 385, 430; see People v. Maury, supra, 30 Cal.4th at p. 389.) 2. Counsel Adequately Investigated The Physical Evidence Appellant contendsthat his attorney failed to adequately investigate any ofthe physical evidence, such asthe fingerprint evidence, the pager andcellular telephone foundat the crime scene, the weapons,plastic bags, shoelaces, and the plastic bucket. (AOB 368-379.) This argument must be rejected because the record does not support his claim. a. Relevant Facts And Proceedings In a declaration and during testimony on the motion for new trial, LeMieuxstated that he hired Jackie Glover as an investigator and asked Glover to get documentary evidence regarding beepers from Delcomber Communications. (RT 3704-3705.) Although the owner of Delcombertold Gloverthat he needed a subpoena duces tecum for the documentary evidence, LeMieux never prepared one. (RT 3706.) Asa result, LeMieux neverreceived prosecutor that he had not been withholding any information. Helater reiterated to the prosecutor, “There isn’t anything to give you.” (RT 1900- 1902.) Thus, counsel was not ineffective. Moreover, appellant does not establish that his case was prejudiced in any way, nor could he, from counsel’s alleged failure to divulge the aforementioned information to the prosecutor. 142 any documentary evidence from Delcomber. (RT 3705.) LeMieux had no. specific reason why he failed to subpoena the records and believed “in | hindsight”that his failure to do so was“incompetent.” (RT 3707, 3722-3728.) LeMieuxalso stated that after reading the fingerprint analysis reports related to the case, he did not believe that the fingerprint evidence would be an issue at trial. (RT 3714, 3716, 3822-3823.) Appellant told LeMieux he had been at the apartment on various occasions andthat his fingerprints “should have beenall over the place.” Appellant also told LeMieux that he had used the telephone in the apartment and that he had been in Linton’s Blazer. LeMieux hopedto establish during trial that appellant had been in the house on prior occasions. (RT 3715.) LeMieux did not request to have the Sprint dusted for fingerprints because doing so would have been a “gamble.” (RT 3717.) The fact that no prints had been foundin the car “was more valuable” to appellant than what might have been revealedifadditional fingerprint analysis was conducted. (RT 3823.) For example, if Cyprian’s prints were found in the car it would have corroborated Cyprian’s testimony. (RT 3717-3718.) Despite LeMieux’s conclusion that the fingerprint evidence wasnotat issue in the case, he also believed that a fingerprint expert could have helped him to evaluate the fingerprint evidence, could have recommendedadditional fingerprint evidence that should be obtained, or might have assisted in preparing arguments regarding the fingerprint evidence. (CT 568-569.) b. Counsel Was Not Ineffective In the case at bar, LeMieux’s conduct in regard to the physical evidence cannot be deemedineffective. For example, Lemieux reasonably decided to forego additional analysis of the fingerprints foundat the crime scene because appellant had told LeMieux he had been in Linton’s Blazer and at the apartment 143 on various occasions. Based on appellant’s statements, LeMieux reasonably. concludedthat the best option was for him to establish that appellant had been _ at the apartmentand in the Blazer onprior occasions and thereby provide an innocent explanation as to why appellant’s fingerprints were foundat the crime © scene. (RT 3715.) LeMieux also decided to forego fingerprint analysis on other items of evidence becausehebelievedthe lack offingerprint evidence or analysis could beused to appellant’s advantage and because hefearedthat such an analysis would merely uncover fingerprints that would link appellant to the crimes or confirm the testimony of the accomplices. (RT 3717-3718, 3823.) In fact, counsel attempted to use this lack of fingerprint evidence to his advantage during closing argument. (RT 3018, 3064, 3075-3076.) In light of these logical and tactical reasons, LeMieux acted competently. (People v. Coffman (2004) 34 Cal.4th 1, 87 [great deference shouldbegiven to counsel’s tactical decisions]; People v. Musselwhite (1998) 17 Cal.4th 1216, 1259-1260 [courts should not second-guess reasonable tactical decisions made by counsel].) Appellant attempts to avoid this conclusion by noting that Lemieux admitted during the hearing on the motion for new trial that, in hindsight, a fingerprint expert could have helpedin his trial preparation. (AOB 373; CT 568-569.) However,the fact that LeMieux could have taken other investigative steps does not mean that he should have taken them orthat he wasineffective for not taking them. (See Jn re Cudjo (1999) 20 Cal.4th 673, 692-693.) A “fair assessment” of counsel’s performance requires that counsel’s conduct be evaluated from counsel’s perspective at the time of trial and not through the “distorting effects of hindsight.” (dn re Jones (1996) 13 Cal.4th 552, 561.) Counsel’s actions are only deemedineffective if they fall below an objective professional standard. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1260; In re Lucas, supra, 33 Cal.4th at p. 721.) Despite Lemieux’s post-trial 144 assertionsto the contrary, his actions duringtrial did notfall below an objective. standard of reasonableness because he had tactical reason to forego - fingerprint analysis and reasonably believed that a fingerprint expert was not necessary. As such, LeMieux did not act in a deficient manner. LeMieux also acted competently in regards to the other items of evidence, such as the pager, cellular telephone, weapons, plastic bags, shoelaces, and the plastic bucket. Significantly, the record does not establish that LeMieux failed to conduct any investigation into the cellular telephone,the weapons, plastic bags, shoelaces, and plastic bucket. To the extent that LeMieuxfailed to investigate these items, the record does not establish why no investigation was conducted, which meansthe claim mustberejected on direct appeal. (People v. Hernandez, supra, 33 Cal.4th at p. 1053; People v. Maury, supra, 30 Cal.4th at p. 389; see People v. Holt, supra, 15 Cal.4th at p. 704.) Moreover, there is nothing to indicate that a subpoena or any further investigation into the pager, the telephone,or the other items ofevidence would have resulted in information helpful to appellant. Thus, the record does not support LeMieux’s opinionthat, in hindsight, he was “incompetent”in failing to take additional investigative steps. (RT 3707, 3722-3728.) Appellant’s contentions must additionally be rejected because he has failed to demonstrate that his attorney’s alleged shortcomingsin regardsto the physical evidence prejudiced him in any way. As noted previously, there is nothingto indicate that further investigation ofany ofthe aforementioned items would have uncovered evidencethat was helpful to appellant. Thus, appellant has failed to establish that his attorney was ineffective. (In re Marquez (1992) 1 Cal4th 584, 602.) 145 3. Counsel Was Not Ineffective For Failing To Formally Interview Appellant’s Prior Defense Team Appellant argues that LeMieux wasineffective for failing to interview appellant’s previous counsel or the investigator. (AOB 380-384.) This argument must be rejected because appellant has not established that his attorney acted deficiently or that his case was adversely affected by counsel’s allegedly deficient behavior. a. Relevant Facts And Proceedings On September 16, 1991, the day of opening statements, LeMieux told the court that appellant’s prior attorney, Clay Jacke, had obtained the appointmentofJackie Gloveras an investigator in the case. (RT 1264-1265.) LeMieux noted that Glover had been authorized to expend and had expended $1,295. LeMieux stated that he intended to ask the court to reappoint Glover or to appoint another investigator to work on appellant’s case. The prosecutor stated that he had not received any discovery from Glover. LeMieux replied that he had received “absolutely nothing” from Glover andthat Jacke’s file did not contain any reports from Glover. LeMieuxalsostated that he had spoken to Glover “two weeks ago” when he “inadvertently” ran into Gloverat the countyjail, but he did not know what Glover had accomplished in appellant’s case. (RT 1265-1266, 1404.) The next day, LeMieux announcedthat he had just spoken to Glover again andthat Glover nowrecalled that he had written a short report. LeMieux told Glover to give him the report so that he could give it to the prosecutor. (RT 1404.) On October 1, 1991, the prosecutor again stated that he had not received any reports by Glover. LeMieuxreplied that he also had received no written reports from Glover. (RT 2577-2578.) LeMieuxsaid that he had given Glover 146 certain assignments,but that Glover had been unable to successfully complete. them. LeMieuxalsostated that he still had not received the report that Glover _ had written for Jacke, despite two requests to do so. (RT 2578.) After appellant was convicted, Jacke signed a declaration that was included with appellant’s motion for newtrial. In the declaration, Jacke stated that he represented appellant during the preliminary hearing and was appointed to represent him in the superior court. (CT 559, 582.) On February 22, 1991, LeMieux wassubstituted in as appellant’s counsel. (CT 560.) LeMieux never called Jacke to formally discuss the case; however, Jacke did “run into” LeMieux on two occasions. Thefirst time, Jacke discussed the case with LeMieux for 20 minutes, although they did not discussthe case “in any depth.” (CT 560.) On the second occasion, the two mendid not“discuss the underlying facts or LeMieux’s knowledgeofor strategy of the case.” (CT 560-561.) LeMieux also signed a declaration andtestified at the hearing for the motion for new trial. In the declaration and duringthe hearing, LeMieuxstated although he did not have any lengthy conversations with Jacke regarding the case, he did ask Jacke questions whenever he happened to see Jacke. (RT 3703.) These conversations occurred “after the trial was in progress.” (RT 3739.) LeMieuxalso stated that he eventually hired Gloveras an investigator. Heinstructed Gloverto locate and interview witnesses, to serve subpoenas on various witnesses, and to get documentary evidence regarding pagers from Delcomber Communications. (RT 3704-3705, 3750.) b. Counsel Was Not Ineffective Appellant contends that LeMieux wasineffective because hefailed to interview Jacke or Glover. (AOB 380-384.) This argumentlacks merit. Appellant’s claim mustfirst be rejected becausehe hasfailed to establish 147 that his attorney acted in a deficient manner. Although LeMieuxdid nothave. a formal discussion with Jacke prior to trial, LeMieux spent several months _ reviewing Jacke’s trialfile, which would have informed LeMieux regarding the physical evidencein thecase, the prosecution’s key witnesses, the prosecution’s theory of the case, and Jacke’s theory of defense. (RT 3739; CT 567.) LeMieux’s pretrial discussions with appellant would also have given him insight into the case. (RT 3702-3703.) Moreover, LeMieux did haveatleast two conversations with Jacke afterthe trial had started. Although these were not formal discussions, one conversation lasted approximately 20 minutes. (RT 3703, 3739; CT 560-561.) LeMieux also had conversations with Glover regarding Glover’s investigative work on the case” (RT 1265-1266, 1404.) Thus, counsel did not act incompetently in regards to Jacke or Glover. Appellant has also failed to demonstrate that he was prejudiced in any way from LeMieux’s allegedly deficient performance. Therefore, his claim must be denied. (People v. Maury, supra, 30 Cal.4th at p. 389; People v. Majors, supra, 18 Cal.4th at p. 430.) 4. Failing To Seek A Court-appointed Investigator Appellant contends that LeMieux wasineffective for failing to hire a court-appointed investigator. (AOB 384-388.) This argument is without merit. a. Relevant Facts And Proceedings On September 16, 1991, the day of opening statements, LeMieux told the court that he intended to ask the court to reappoint Glover or to appoint 34. Appellant contends that LeMieux may have had Glover’s report priorto trial. (AOB 384.) However, during the hearing on the motion for new trial, LeMieux did not state when he received the report from Glover. (RT 3703.) 148 another investigator to work on appellant’s case. (RT 1265-1266, 1404.) On. October 1, 1991, LeMieuxtold the court that he was paying Glover“privately.” _ (RT 2578-2579.) In a declaration and during testimony at the hearing on the motion for newtrial, LeMieux stated that he did not formally request an investigator in appellant’s case because he had a “hands-on approach” and opted to do investigations himself. (RT 3810.) Thus, he visited the murder scene on three occasions. (RT 3810-3812.) He believed that such visits were “absolutely vital” to “get a feel” for the case. He also believed in taking his own photographs, drawing his own diagrams, and interviewing witnesses himself because it gave him a “muchbetter feeling for a case” and helped him to cope with “credibility questions.” (RT 3811-3812.) Nonetheless, LeMieux eventually hired Glover to locate and interview Yvette Pearson, to serve a subpoena on Tony Moreno, and to obtain documentary evidence regarding pagers from Delcomber Communications. (RT 3704-3705, 3750.) Glover did not serve Moreno, and Lemieux neverreceived any documentary evidence from Delcomber. (RT 3705; CT 570.) b. Counsel Was Not Ineffective Appellant contends that his attorney wasineffective becausehefailed to request a court-appointed investigator. (AOB 384-388.) This argument must be rejected. LeMieux “privately” retained Glover to serve as an investigator and gave Glover several investigative tasks. (RT 2578-2579, 3704-3705, 3750.) Thus, LeMieux did havethe services of an investigator to assist him in the case and to supplement the “hands-on approach” that LeMieux utilized. (RT 3810-3812.) Although appellant insists that counsel should have requested a court-appointed investigator, he does not specify why a publicly paid investigator would have performed an investigation differently than 149 Glover. There is also nothing to indicate that the “scope of the investigation that LeMieux assigned Glover” was in any wayaffected by the private retention _ of Glover. (AOB 386.) As result, appellant has not shownthathis attorney was incompetent or that his case was prejudiced by the allegedly deficient performance ofhis attorney. (Cf. In re Cudjo (1999) 20 Cal.4th 673, 692 [petitioner did not demonstrate that counsel was ineffective in regards to the investigation that was actually conducted].) Appellant attempts to avoid this conclusion by noting that there were instances during opening statement where LeMieux indicated that he did not know certain information. (AOB 387-388.) However, there is nothing to indicate that LeMieux’sfailure to obtain a court-appointed investigatorled to his alleged shortcomings aboutcertain information orthat the information was somehowvital to the case. Indeed, LeMieux’s opening statement appeared to indicate that he realized the information was not important. (RT 1307-1308, 1313-1314.) Thus, appellant’s claim mustbe rejected. 5. Failing To Interview Eyewitnesses Appellant contendsthat his attorney was ineffective because he failed to interview eyewitnesses. (AOB 389-401.) This argument must be rejected becausethe record does not support his contention. a. Relevant Facts And Proceedings During the hearing on the motion for new trial, LeMieux testified that he did not interview Sazo because he did not want to “forewarn”her of the possible questions he would askandtherebyallow herto craft answersto them. LeMieuxbelievedthat it was often advantageousto not interview a witness and then “catch that witness by surprise on the witness stand.” (RT 3730.) LeMieux also believed that Sazo was “the most important witness that the 150 People had”and that it would be “a strategic and tactical mistake”to discredit. her on the witness stand. He instead decided to argue that Sazo had notlied but _ that she was mistaken in heridentification of appellant. (RT 3731-3732.) . LeMieuxalsotestified that appellant may have asked him to interview his co-defendants. (RT 3733.) However, LeMieux decided not to do so becausehe hadthe transcripts and the tapes of statements they had givento the police and believed he could use the coperpetrators “as defense witnessses.” Healso did not wantto alert the accomplicesto the “monumental contradiction” between Linton’s statement that appellant was on his knees when the gun discharged and Lee’s statement that appellant was standing. (RT 3734.) To prepare for his examination of the coperpetrators, LeMieux had prepared “extensive cross indexing”ofthe inconsistent statements between Linton, Lee, and Cyprian. (RT 3820.) b. Counsel Was Not Ineffective Appellant contends that counsel was ineffective because he failed to interview certain eyewitnesses, such as Marcella Pierre, Jose Pequeno, Irma Sazo, and appellant’s coperpetrators. (AOB 389-401.) However, LeMieux stated duringtrial that he had discovered that Pierre, who had been subpoenaed as a defense witness, had a possible prior conviction during an interview with her. (RT 1267, 1465-1466.) Thus, the record directly contradicts appellant’s claim in regardsto Pierre.” The record also fails to establish that LeMieux failed to interview Pequeno. Although appellant’s attorney indicated during oral argumenton the 35. Appellant arguesthat “timely trial preparation” would have revealed Pierre’s prior conviction before she testified. (AOB 401.) However, even the prosecutor was unawareofthis prior conviction and said he would research the matter and would allow LeMieuxto ask Pierre about the conviction ifLeMieux recalled Pierre as a witness. (RT 1466.) 151 motion for new trial that LeMieux failed to interview this eyewitness (RT. 4160), LeMieux nevertestified that he did not interview Pequeno. Moreover, _ even ifLeMieux failed to interview Pequeno, appellant cannotprevail because the record does not reveal why LeMieux failed to do so. (People v. Maury, supra, 30 Cal.4th at p. 389; People v. Hernandez, supra, 33 Cal.4th at p. 1053; People v. Holt, supra, 15 Cal.4th at p. 704.) Appellant’s claim must additionally be rejected because LeMieux had tactical reasons for not interviewing the other witnesss, such as Sazo and appellant’s coperpetrators. LeMieux reasonably decidednotto interview these witnesses becausehe did not wantto “forewarn”them ofhis possible questions or the contradictions in their anticipated testimony. (RT 3730, 3734, 3863.) This strategy was successful because LeMieux managedtoelicit evidence that contradicted Sazo’s identification testimony; provided an innocent explanation for why appellant’s fingerprints were found in Linton’s Blazer and the apartment; demonstratedthat the other coperpetrators might have had pagers; and showedthat the coperpetrators had previously lied to the police, had the opportunity to discuss the case with each other, and arguably received a benefit for testifying against appellant. (RT 1655-1656, 1658, 1666-1667, 1691-1693, 1817-1818, 1822, 1825-1826, 1886-1887, 1889-1891, 2212-2213, 2225-2226, 2732, 2753.) Thus, LeMieux did not act in a deficient manner. LeMieux’s decision was also competent because he was aware ofwhat the witnesses would likely say on the stand due to their previous statements to the police2” (RT 1685, 3730, 3819-3820, 3862-3863.) For example, LeMieux 36. Although LeMieuxstated during the hearing on the motion for new trial that he had “no idea” what Sazo’s testimony would be (RT 3730), he was obviously aware of what she was likely to say on the witness stand since he realized that she was oneofthe prosecution’s most important witnesses, had decided that he would try to show that her identification of appellant was a mistake, and said during trial what he expected Sazo to say on the witness stand. (RT 1685, 3731.) Moreover, contrary to appellant’s assertion (AOB 152 anticipated that Lee wouldtestify appellant was standing when he shot Barron;. this contradicted Linton’s testimony that appellant was kneeling when the gun | discharged. (RT 3862-3863.) Although appellant argues that LeMieux stated prior to closing argumentthat he did not know what the witnesses would say until they testified (AOB 390), that is not the case. LeMieux had asked the court ifhe could have several days to prepare his closing argument. When the court asserted that LeMieux could have prepared his argument during the course of the trial, LeMieux responded that he knew what evidence the prosecutor had butthat “it wasn’t until after each persontestified” and he saw whatevidence wasproducedbythe prosecutor“and what was omitted from this case”that he “gained a sufficient knowledge ofthe case to be able to construct an argument based on the evidence presented.” (RT 2894-2895.) Thus, the record showsthat LeMieux reasonably used the witnesses’ prior statements to inform him of their possible testimony, and his reliance on those statements cannot be deemed incompetent. (See People v. McDermott (2002) 28 Cal.4th 946, 992.) Appellant attempts to avoid this conclusion by arguing that “there was no strategic downside” to interviewing Sazo and the coperpetrators and learning what they wouldtestify to on the witness stand. (AOB 392-393.) Although appellant disagrees with LeMieux’sstrategy, he has not overcomethe “strong presumption” that LeMieux’s conduct“falls within the wide range of 391), LeMieux wasnot “profoundly disturb[ed]” that he did not know what Sazo’s testimony would be, but was instead concerned that Sazo had not been cross-examined during either of Linton’s trials. (RT 3730.) Appellant also argues that LeMieux only obtained transcription of Cyprian’s statement to the police after Cyprian had taken the witness stand. (AOB 396.) However,the transcript was not crucial to LeMieux’s preparation for trial. LeMieux already had a videotape of the statement and merely hired a court reporter to transcribe the tape. (RT 1831-1832.) . 153 professionalassistance.” (Strickland v. Washington, supra, 466 U.S.at p. 689.) Finally, appellant has failed to establish that counsel’s alleged _ deficiencies prejudiced his case. Appellant does not adequately show that the lack ofwitness interviewsleft LeMieux unaware ofthe eyewitnesses’ proposed testimony. (See People v. Lloyd (1992) 4 Cal.App.4th 724, 736.) Although appellant argues that he would have learned how Pierre’s testimony would differ from her statements to the police (AOB 400),there is nothing to indicate that an interview with her would have uncoveredthese differences. Appellant has also failed to demonstrate that the witnesses were willing to give interviews to LeMieux. (People v. Beasley (2003) 105 Cal.App.4th 1078, 1093.) Thus, appellant’s claim must be rejected. 6. Failing To Interview Or Subpoena Certain Witnesses Appellant contendsthat his attorney was ineffective becausehe failed to interview or subpoenaalleged alibi witnesses. (AOB 401-415.) However,the record does not establish that counsel acted in a deficient manner or that the result of appellant’s trial was prejudiced by counsel’s alleged incompetence. a. Relevant Facts And Proceedings (1) Proceedings During Trial Prior to opening statements on September 16, 1991, LeMieuxtold the court that two weeks previously, he had received a five-page report that had been faxed to the prosecutor. The report concerned an interview that an FBI agent had with appellant “pertaining to the prosecution of certain Sheriff’s deputies and L.A.P.D.officers in all these narcotics skimmingcases and arrests that have been going on.” (RT 1267-1268, 1271.) Appellant had been an informantfor several Sheriff’s deputies who wereon trial and had also worked 154 with an officer named Tony Moreno. (RT 1268.) LeMieuxstated thatprior to his receipt of the FBI report, appellant had been “covering up andprotecting _ Tony Moreno.” After the report was disclosed, LeMieuxtalked to appellant, who “confessed” that he had been an informant for the police. (RT 1270.) LeMieuxstated that he was “just floored” by the FBI documentbecausehe had been preparing the case based on the “issue of proof” and had not previously realized that appellant “might have been framedor set up.”” LeMieux said that it appeared that a frame-up could “bea very strong possibility,” but he was not certain that the evidence would support this argument. (RT 1270-1271.) LeMieux stated that he intended to ask the court to order the prosecution, the police department, or “whoever” to provide him with the whereabouts and telephone number of Morenoso that he could subpoena or interview Moreno. Both the prosecutor and LeMieux only knew that Moreno was on “stress leave.” LeMieux stated that Moreno was“an absolutely essential material witness for the defense. Ifhe were not material on the issue ofguilt or innocence,he is certainly absolutely essential on the issue of penalty.” (RT 1267, 1271.) LeMieux added that Moreno’s name would “pop upall overthis case.” LeMieux hoped to submit “a lot of circumstantial evidence indicating that this [case] was a frame-up” by Moreno. (RT 1268.) He addedthat the evidence would suggestthat Moreno “had an active part in this case” and “was very possibly present during the murders” and framed appellant for the crimes. (RT 1268-1269.) LeMieux admitted that he did not have “direct evidence”to support his contentions, but added that he hoped that Moreno would “be very valuable in persuading the jury that [appellant] wasnot the shooterin this case.” (RT 1269.) LeMieux informedthe court that he was “helpless” because he did not know how to contact Moreno even after calling the police department’s personnel number on three occasions. He had also called the Southeast 155 Division and the South Bureau and could not obtain any information on Moreno’s whereabouts. (RT 1269, 1271.) LeMieux stated that an FBI agent _ was going to attempt to “produce” Moreno,as well as Moreno’s personnel file. A United States Attorney was also supposed to meet with LeMieuxto discuss Moreno. (RT 1269.) The prosecutor said that he would call the police department’s personnel division to find the station where Moreno could be subpoenaed. (RT 1271- 1272.) The court told LeMieux that he should subpoena Moreno, and LeMieux responded, “I want to.” (RT 1272.) On September 26, 1991, LeMieux advised the court that there could be “a major problem with respect to Tony Moreno” that would require an Evidence Code section 402 hearing. (RT 2444.) LeMieux added that “it appears that we know whereheis,that the police are shielding him and they’re lying to us about the existence of court orders protecting Tony Moreno from coming into court andtestifying, and I need to follow that up a little bit more before I can make representations to this court.” (RT 2445.) In the end,the defense did not call Morenoas a witness. On January 31, 1992, after appellant had been convicted, LeMieux advised the court that he was not prepared to proceed with a motion for new trial. (RT 3507.) LeMieuxsaid that he had been “onthetrail” of Moreno and his medical and personnel records since December 20, 1991, and had just learned that Morenohad “surfaced out of the blue”and hadtestified in federal court. During that proceeding, Morenotestified that he was “back on active duty” and hadnotbeen onstress leave, which contradicted the informationthat LeMieux had previously been given. (RT 3514.) On February 28, 1992, in discussing a motion for new trial, LeMieux told the court that prior to making his opening statement he had not subpoenaed,interviewed, or contacted Moreno. He addedthat “all efforts” to 156 locate Moreno had been unsuccessful. (RT 3531.) LeMieux said that it was. “reckless” and “careless” of him to mention Moreno during his opening | statementbutthat he had doneso becausehe had beentold that Moreno could be subpoenaedthrough the division where he worked. Detective Herrera had told LeMieux that Moreno was assigned to the Metro station, but when LeMieux attempted to serve Moreno,“he wasn’t there.” (RT 3542.) LeMieux added that Moreno had been “unavailable as a witness under Evidence Code [s]ection 240.” LeMieux said that he should have refrained from mentioning Moreno during opening statement or should have requested a continuance to obtain Moreno’s presence. LeMieux reiterated that the >“frame-up defense did not arise until the middle of voir dire,” when the prosecutor received a faxed copy of an FBI report. This report was given to cocounsel McCann, who gave the document to LeMieux. Upto that point, LeMieux had preparedthe case “on the issue ofproof.” (RT 3537.) LeMieux’s receipt of the report was the “first time” that he had heard of Moreno and discovered that appellant was an informant. LeMieuxreiterated that appellant 23“never said one breath” about his informant status while LeMieux was preparing for trial and only admitted to being an informant after LeMieux received the FBI report. Appellant had not mentioned Morenoorhis informant status previously because he wasprotecting Moreno“out ofa sense ofloyalty” and because he hoped Moreno would help him avoid prosecution inthis case. (RT 3538.) (2) LeMieux’s Declaration And Testimony During The Motion For New Trial LeMieux signed a declaration to support the motion for new trial and testified during the hearing on the motion. In both the declaration and during the hearing, LeMieuxreiterated that appellant had not mentioned Morenountil 157 after LeMieux had received the FBI report during voir dire. (RT 3735-3736,. 3739; CT 567.) Appellant had not previously mentioned that he had a | relationship with Moreno. (RT 3801.) LeMieux and appellant then discussed appellant’s role as a police informant and his relationship with Moreno. However, appellant never stated that Moreno was involved in the murders because appellant had always maintained that he was not in the upstairs apartment when the murders occurred. (RT 3740-3743, 3825.) At somepoint, appellant told LeMieux that he had accompanied Moreno and anotherofficer on a raid of an apartment where weaponswereconfiscated. (RT 3797-3798.) Moreno gave appellant three guns from the raid. Appellant subsequently loaned the weaponsto either Linton or Cyprian; these weapons were later found at the apartment where Barron and Thomas were murdered. (RT 3798.) | LeMieux did not make any effort to subpoenaor interview Morenountil September 16. (RT 3747, 3749, 3751-3752, 3754.) At some point, Detective Herrera was askedto investigate the location ofMoreno,and he told LeMieux that Moreno workedat the Metro Division. (RT 3750.) LeMieux attempted “both personally and through an investigator” to subpoena Morenoatthe Metro Division and the Northeast Division,but his efforts were “fruitless.” (RT 3749, 3754-3755; CT 570.) LeMieux also unsuccessfully attemptedto call the officer whotold Glover, the investigator hired by LeMieux,that Moreno was underthe protection of a court order. (RT 3755.) LeMieux also contacted the Legal Affairs Division of the LAPD andInternal Affairs. (RT 3755-3756.) He was told by Internal Affairs that if Moreno wasonstress leave, he could not be contacted. (RT 3756.) LeMieux hadnotpreviously been told that Moreno was on a stress-related leave. (RT 3756.) After LeMieux was unable to serve Moreno with a subpoena, he “dropped the subject” and madeno additionalefforts to locate Moreno. (CT 158 570.) At the time, LeMieux did not consider asking for a continuance because. he believed that the “best way to proceed” wasto present a “reasonable doubt . defense.” (RT 3757.) However, he subsequently believed that he should have asked for a continuance to conduct an investigation on Moreno,as well as to obtain additional discovery from the prosecutor regarding Morenoandthe daily activity logs of Moreno. (RT 3752; CT 570.) LeMieux further believed that the failure to request such a continuance was “extremely prejudicial” to . appellant, “was without a soundtactical basis,” and washis “first major act of incompetence.” (RT 3752; CT 570-571.) He had no explanations for his failure to request a continuance and characterized it as “just a plain blunder.” (RT 3752.) LeMieux decided to include Moreno in his opening statement even though he had not interviewed Moreno, served him with a subpoena, or investigated the underlying facts of the case. (RT 3742, 3744; CT 570.) Although LeMieux based his opening statement on the faxed FBI document and his discussions with appellant, LeMieux believed it was “ill-advised,” 29 ¢e 29 665 “reckless,” “careless,” “incompetent,” and “prejudicial” to have made “such fabulous statements before the jury” when he did not know whetherthey were true or false, had conducted no investigation, and had not “taken steps to determine the accuracy andcredibility ofthe information.” (RT 3742-3745; CT 570.) After the jury recommended death, appellant told LeMieux forthefirst time that he and Moreno were involved in the drug deal with Barron and Thomas. (RT 3743, 3792, 3824-3825.) Appellant stated that he and Moreno stole six kilos of narcotics from the victims’ car. After appellant and Moreno divided the drugs between them, appellant went home. (RT 3791, 3825-3826.) LeMieuxalso testified that appellant had asked him to interview certain potential alibi witnesses. These witnesses could not be located, and appellant 159 could not provide LeMieux with their whereabouts. (RT 3727.) Appellant also told LeMieux to interview Carlos or Collis Brazil. However, LeMieux did not locate Brazil because appellant’s statements regarding where he had been and who hehad been with on the night of the murders “varied from time to time.” (RT 3727-3729, 3824.) In addition, an investigation by Glover indicated that appellant’s whereabouts could not be verified by Brazil. (RT 3729.) If appellant’s statements did not appear to be credible, LeMieux discounted them. (RT 3727-3729, 3824.) He based this course of action on his belief that an alibi defense had to be “carved in stone... before it can fly” because ifthejury disbelieves an alibi witness,it has a tendencyto “rehabilitate the prosecution’s case.” (RT 3824.) Appellant additionally asked LeMieuxto obtain a statement from a hair stylist confirming that appellant had his hair in a Jheri-curl several days before Christmas. LeMieux did not do so because Monique Williams gave LeMieux a photograph showingappellant’s hairstyle, and this was better evidence than any statement by a hairdresser. (RT 3732-3733.) (3) Appellant’s Declaration And Testimony During The Motion For New Trial Appellant signed a declaration that was attached to his motion for new trial andtestified during the hearing on the motion. In both the declaration and at the hearing, appellant stated that he had worked as an informantfor the Los Angeles Police Department and Los Angeles County Sheriff's Department and had made“tens of thousandsof dollars.” Moreno wasoneofthe officers that appellant had worked with while he was an informant. (CT 579.) Appellant first worked with Morenoin July 1986 on a drugraid and received $2,000. (RT 4013-4015.) Appellant eventually earned approximately $200,000 in 1986 and 1987 from his work as an informant and would see Moreno almost every day. 160 (RT 4016, 4018.) At some point in 1987, appellant began working with Moreno on . various drug crimes and crimes involving illegal weapons. (RT 4017-401 8.) At somepoint, appellant was prosecuted for possessing a knife. Morenosaid he would havethe knife charge droppedifappellant helped him obtain an AK- 47. Appellant gave Moreno someinformation regarding some firearms. (RT 4003-4004.) The operation yielded an AK-47, carbine rifle, .44 magnum, a .380 handgun,and a .38 revolver. (RT 4004-4005.) The knife charges were eventually dropped after Moreno talked to the prosecutor. (RT 4004.) Appellant also received the carbine, .380, and the .38 handgun. Appellant eventually gave the weaponsto Linton. (RT 4003, 4005, 4059, 4066-4067; CT 579-580.) At the end of 1989 and early 1990, appellant arranged a drug deal between Cyprian, Linton or JoJo Dalton, and Barron and Thomas. Appellant was merely a “go-between.” The transaction was supposed to happenpriorto Christmas at the Mi Cabana Bar. Appellant contacted Moreno and told him whenthe deal would occur. Appellant agreed to “rip-off the dope and divide it between” himself and Moreno. (CT 580.) Appellant went to the bar with Linton and a person named Keno. However,the transaction did not occurat that time. (RT 4000, 4044-4050, 4061-4063; CT 580.) On January 2, 1990, appellant saw Moreno for 15 to 20 minutes. (RT 4001, 4056.) Linton then came by appellant’s house. While he wasthere, Thomaspaged Linton. Appellant returned the telephone call because Monique Williams wasinside the house and was not dressed. (RT 4056-4057.) At the time, Thomassaid he could not talk. Five minutes later, Thomas paged Linton again. Appellant returned the telephonecall and talked with Thomasfor two minutes. (RT 4057-4058.) During the conversation, Thomas said he would arrive at approximately 7:00 p.m. for the drug transaction. Appellant then 161 called Moreno and told him whenthetransaction would occur. (RT 4058.) He. met Moreno again at approximately 6:30 or 7:30 p.m. (RT 4001, 4056.) At somepoint, Moreno and appellant saw Barron and Thomasdrive up to the apartment. When Barron and Thomasdisappeared inside the apartment, Morenobrokeinto their car andstole the narcotics. Moreno wasnotpresentat the murder scene when the murder occurred. Appellant stayed hometherest of the evening with Collis Brazil, Dana Stokes, a woman named Carmen, and aman named Ronald. Appellant had not stayed home with Williamsthat day and had not killed Barron or Thomas. Linton later told appellant that the narcotics transaction “had gone wrong.” (RT 4002-4006, 4053, 4055; CT 581- 582.) The next day, appellant talked to Linton and Cyprian. Neither of them said that Barron and Thomas had been killed. When appellant eventually learned that Barron and Thomashadbeenkilled, appellant panicked because Morenodid notreturn his calls. (RT 4007.) Appellant went to Las Vegasfor a week, returned home,andsold the narcotics he had obtained from Barron’s and Thomas’ car. He used the moneyto get an apartment and a car. (RT 4008.) On February 8, Detective Herrera told appellant’s motherthat there was an arrest warrant for appellant. (RT 4008.) Appellant called Moreno, who advised him not to turn himself in until Moreno went on duty. (RT 4009.) Appellant then called Herrera to surrender. (RT 4010.) Appellant refused to | give a statementto the police because Morenotold him notto say anything and because Morenosaid that he could get appellant released. Later, Moreno said that appellant should only give a videotaped statement and that he should not mention anything about Moreno“ripping off” the narcotics. (RT 4010-4011, 4068; CT 581.) Appellant was subsequently taken to the 108th Street police station. 162 While there, Morenovisited appellant and took a statement from him. Moreno. subsequently had appellant moved to Parker Center. (RT 4011-4012.) - Appellant saw Moreno every day for four or five days. Moreno took two written statements from appellant. Morenotold appellant to keep quiet and Moreno would get him released. (RT 4013.) Appellant hired Clay Jacke as his attorney and told him about Moreno. (RT 4019-4020.) Appellant eventually replaced Jacke with LeMieux . Appellant told LeMieux about his relationship with Moreno, and LeMieux agreed to investigate Moreno. (RT 4021; CT 583.) Appellant also told LeMieux that Moreno needed to be subpoenaed andthat the records from the Victim of Crime Fund would prove that appellant knew Moreno. (RT 4022- 4023.) In the latter part ofJune, appellant asked LeMieux ifhe had subpoenaed any potential witnesses, DMV records, appellant’s medical records, or the records from the Victim of Crime Fund. LeMieux said that he was handling a rape trial and that he had not subpoenaed the witnesses or the records. (RT 4023-4024.) (4) Anthony Moreno’s Testimony During the hearing on the motion for new trial, Los Angeles Police Detective Anthony Morenotestified that he had been assigned to “monitor organized crime” within Los Angeles. (RT 3868-3869.) His speciality was “black organized crimes,” including gangs. (RT 3886.) Moreno knew appellant since 1987, but did not form an informant relationship with him until 1988. (RT 3919.) On one or two occasions, Morenoretrieved appellant and took him to perform certain activities. (RT 3920.) However, Moreno did not recall appellant receiving any money for a raid in Inglewood in 1986 or for any other activities with the Los Angeles 163 Police Department, Los Angeles County Sheriff's Department, or other law. enforcement agencies. (RT 3922-3933.) Moreno had a pager and told appellant to call him on his pager. Depending on what was happening,appellant would sometimescall Moreno’s pager every day. (RT 3921.) Moreno would sometimesreturn the telephone calls. (RT 3921.) On January 2, 1990, Moreno was on duty wearing street clothes and riding in an unmarked police vehicle. (RT 3891.) Although he had no independentrecollection of where he wasthat day, his log indicated that he went to a Protective League meeting and then spent approximately five and a half hours doing administrative duties. (RT 3892-3893, 3912-3913, 3930- 3932.) Thelog also indicatedthat he was at headquarters until 11:20 p.m. and then went to a numbered location, where he met with an informant before getting off duty at 1:00 am. (RT 3916-3918.) Morenodid not recall being with appellant on January 2, 1990. (RT 3938.) Moreno hadno personal knowledge regarding what happened to Barron and Thomas on January 2. He had not beenpresentat the apartment; had never met Linton, Lee, Barron, or Thomas; wasnotinvolved in setting up any kind of narcotics transaction with appellant; did not agree to steal any drugs and divide them between himself and appellant; and he did not break into a Sprint, steal three kilos of cocaine, and then divide the cocaine with appellant. (RT 3938, 3958-3961.) Moreno had no knowledge of the events leading to the deaths of Barron and Thomas and had no knowledge of appellant’s involvementor lack ofinvolvementin their deaths. (RT 3963-3964; CT 423.) On February 7 or 8, 1990, appellant paged Moreno andsaid that a homicide detective was looking for him. Moreno called the detective and discovered that the detective wanted to talk to appellant. Moreno told appellant to select a location where he wantedto surrender. (RT 3942-3943, 3961-3963.) 164 Morenonevercalled appellant to tell appellant that the police were looking for. appellant. (RT 3961.) On February 8, 1990, Moreno went to South Bureau Homicide Division because appellant wanted to speak to him. (RT 3941.) Moreno wasat the South Bureau station for approximately three and a half hours. He may have been requested to stay there by one of the investigators, who thought that Moreno might be able to lend assistance if appellant named people who were known by Moreno. (RT 3946-3947.) At some point, Moreno talked to appellant for 10 to 15 minutes and may have conversed with him again a second time. (RT 3945.) He never told appellant that he should make a videotaped statement, but not an audiotaped or written statement. (RT 3944, 3959.) Morenodid notrecall going to visit appellant at the 108th Street Station and taking a written statement from him,although he may havevisited appellant at that station. (RT 3947.) Morenodid nottransport appellant to Parker Center to be housed there. (RT 3948.) He did not take a written statement from appellant at Parker Center. (RT 3948.) (5) Douglas McCann’s Declaration And Testimony McCannsigned a declaration that was filed with appellant’s motion for newtrial. In the declaration, McCann stated that he and LeMieux agreedthat Moreno wasa “critical defense witness.” McCann asked LeMieux when he wasplanning to subpoena Morenoand advised LeMieux not to announcethat he was readyfortrial until Moreno had been subpoenaed. LeMieux seemed “distracted and defensive” and told McCann not to worry. (CT 563.) During the hearing on the motion, McCanntestified that he was not absolutely certain whether he discussed Moreno with LeMieux before or after the FBI document wasreceived by the defense. Although McCann believed 165 that he discussed Moreno with LeMieux prior to LeMieux announcingready. for trial, he could have been mistaken. (RT 3846, 3851-3853.) McCann did _ recall that he was “somewhatpersistent” in attempting to ensure that LeMieux would subpoena Moreno,whowasa “critical witness” in the case. (RT 3850, 3857.) Duringjury selection, there was a “concern” that Moreno had not been subpoenaed. (RT 3855.) b. Counsel WasNot Ineffective In the caseat bar, appellant has failed to demonstrate that LeMieux was ineffective in regards to the alleged alibi witnesses. For example, LeMieux reasonably attempted to locate Morenoshortly after he received the FBI report and appellant admitted that he was an informant for Moreno. Because appellant had not previously informed LeMieux abouthis informantactivities or Moreno, LeMieux wasnot ineffective for previously failing to investigate or locate Moreno. (RT 1270, 3537-3538, 3735-3736, 3739, 3801; CT 567.) Although appellant contends that LeMieux could have discovered that Moreno was a possible witness prior to receiving the FBI report (AOB 406-407), LeMieux could have reasonably concluded that Moreno did not need to be investigated at that point because appellant had not mentioned his relationship with Moreno or in any wayindicated that Moreno should be investigated. (RT 3538, 3801.) Onceappellant had revealed that Morenocould be a valuable witness, LeMieux diligently attempted to locate and subpoena Moreno.” For example, LeMieuxcalled the police department’s personnelunit three times in an effort 37. Appellant also argues in passing that LeMieux wasineffective for including Moreno in his opening statement and for failing to request a continuance to investigate Moreno. (AOB 406, 410-412, 414.) Appellant subsequently makes these arguments in more detail in other subsectionsofhis brief. In order to avoid repetitive arguments, respondent will respond to those contentions at the point when those more detailed arguments are made. 166 to locate Moreno, and also contacted the Southeast Division and the South. Bureau. (RT 1269, 1271.) After being informed that Moreno wasassignedto - the Metro station, LeMieux attempted to serve Morenothere, as well as at the Northeast Division, but was unsuccessful on both fronts. (RT 3542, 3749- 3750, 3754-3755; CT 570.) Efforts to locate Moreno throughthe prosecutor, United States Attorney’s Office, and the FBI also apparently failed. (RT 1269, 1271-1272.) Although LeMieux was apparently told that there were protective orders preventing Moreno from testifying in appellant’s case and although LeMieuxbelievedthe police were “shielding” Moreno,he continued to attempt to locate Morenoby contacting the police department’s Legal Affairs Division and Internal Affairs. (RT 2445, 3755-3756.) Thus, LeMieux’s efforts to contact, subpoena, and investigate Moreno werenotdeficient. (Cf. People v. Venegas (1994) 25 Cal.App.4th 1731, 1741.) LeMieux also acted competently in regards to other alleged alibi witnesses. For example, LeMieux did not investigate some of the alleged eyewitnesses becausethey could not be located, and appellant could not provide LeMieux with their possible whereabouts. (RT 3727.) LeMieux also doubted that these witnesses could credibly provide an alibi for appellant because his statements to LeMieux regarding the identities of his companionsvaried from time to time. (RT 3727-3729.) Because LeMieux logically believed that questionable alibi evidence would only assist the prosecution (RT 3824), he reasonably decided not to waste additional time investigating these witnesses. LeMieuxalso reasonably chose not to further investigate Brazil because an initial investigation revealed that Brazil could not verify appellant’s whereabouts on the night of the murders. (RT 3729.) He also reasonably decided not to interview appellant’s hairstylist because he had been given a picture of appellant that provided better proof of appellant’s hairstyle on the night of the murders. (RT 3732-3733.) In light of the foregoing reasons, 167 LeMieuxdid not act incompetently in regards to these alleged alibi witnesses.. Appellant has also failed to demonstrate that counsel’s alleged _ shortcomings adversely affected the outcomeofthetrial or the penalty phase. In regards to LeMieux’sefforts to locate and subpoena Moreno,there is nothing to indicate that any additional, or earlier, efforts would have been successful. More importantly, Moreno’stestimony at the hearing on the motion for new trial clearly established that he would not have been a helpful witness for appellant. Although Morenotestified that it was possible that he could have been with appellant at some point on January 2, 1990 (RT 3932), he did not recall being with appellant on that date, he had no personal knowledge regarding who murdered Barron or Thomas, and he had no knowledge regarding appellant’s level ofinvolvementin the murders ofBarron or Thomas. (RT 3927, 3938, 3958-3961, 3963-3964; CT 423.) Any implication to the contrary would have been harmful to appellant because it would have contradicted Monique Williams’ alibi testimony that appellant was with her on the night of the murders. In regardsto the other alleged alibi witnesses, there is nothing to show that they would have provided useful information to appellant. Instead, appellant’s varying statements regardingthe identifications ofhis companions, and the initial investigation indicating that Brazil could not venfy appellant’s whereabouts on the nightofthe murders, makeit unlikely that the outcome of appellant’s trial would have been different had LeMieux conducted further investigations related to these witnesses. Thus, appellant has failed to demonstrate that his attorney wasineffective. (See People v. Dyer (1988) 45 Cal.3d 26, 54; cf. In re Roberts (2003) 29 Cal.4th 726, 747.) Appellant attempts to avoid this conclusion by arguing that his case was close, as indicated by the length of the jury deliberations. (AOB 486-487.) However,the jury deliberations lasted approximately a day and a half, which 168 was reasonable in light ofthe three weeks oftestimony (CT 268-271, 290-293,- 294-299, 390), the serious nature ofthe charges, and the complicated nature of - the case. (People v. Taylor (1990) 52 Cal.3d 719, 732.) “Rather than proving the case was close, the length of the deliberations suggests the jury conscientiously performedits duty.” (People v. Carpenter (1997) 15 Cal.4th 312,422.) Thus, appellant’s claim of ineffectiveness must be rejected. 7, Failing To File Futile Or Irrelevant Motions Appellant contends that his attorney was ineffective for failing to file various motions. (AOB 416-425.) This argument must be rejected. a. Relevant Facts And Proceedings In a declaration and during the hearing for the motion for newtrial, LeMieux stated that he decided notto file any motions in the case, such as a discovery motion or a motion for production of physical evidence, because he did not believe any motions had “merit.” He also failed to file a discovery motion because he had not filed one during his “22 years of practice.” (RT 3694, 3719; CT 568.) Instead, LeMieux received all of the materials he needed through the “cooperation and the friendly relationship” he maintained with prosecutors. The prosecutor in appellant’s case was “very cooperative” and “worked very agreeably” with LeMieux and gave LeMieux “everything” that he requested. (RT 3695, 3720-3722, 3817-3818.) IfLemieux believedthat a discovery motion was necessary, he would havefiled one. (RT 3818.) LeMieux had prepared a request for production of evidence but never filed it because the prosecutor gave him the items that would have been includedin the request. (RT 3708-3709, 3711.) LeMieux usually prepared a draft of a request for production of evidence that could be completed andfiled if the prosecutor did not disclose the items that he needed. (RT 3709-3710, 169 3818-3819.) LeMieuxalso failed to file motions to request a second counselorfor - experts because he believed he “needed noassistance in any ofthese matters” and could “accomplish[his] goals”through cross-examination. (CT 568.) In retrospect, however, LeMieux concludedthat “the assistance of any and all of the experts” could have been of someassistance to him. Thus, second counsel could have helped him prepare and present the defense, while a fingerprint expert could have helped to evaluate the fingerprint evidence, recommend additional fingerprint evidence that should be obtained, orassist in preparing arguments regarding the fingerprint evidence. Similarly, a ballistics expert could have assisted him in evaluating the ballistics evidence, could have testified to various facts concerning the evidence, and could have helped to determine where Barron wassitting when he was shot. A psychological expert could have helped LeMieux to determine the effect of intoxicating substances on appellant’s mental state. (CT 568-569.) Because LeMieux had never handled a penalty phasein a capital case, he “naively believed”that he would be given 30 days to prepare for the penalty phase. Asa result, LeMieux did not conduct any investigation for the penalty phase until appellant had been found guilty. Although LeMieux had done “some reading and inquiry and preparation” for the penalty phase prior to the end of the guilt phase, he still believed that he should have obtained a continuanceto investigate the aggravating and mitigating evidence. (RT 3760; CT 571.) b. Counsel WasNotIneffective Appellant’s contentions regarding counsel’s failure to file motions must be rejected because counsel had tactical reasons for not filing some ofthe motions. For example, LeMieuxdid not file a discovery motion or a request 170 for production of physical evidence because he had received “everything” he needed or requested through an informalprocess. (RT 3695, 3708-3709, 3711, . 3720-3722, 3817-3818.) The use of such an arrangement did not amountto incompetence, especially since LeMieux was prepared to file discovery or production motionsifhe believed they were necessary (RT 3709-3710, 3818- 3819). (See People v. Jackson (1980) 28 Cal.3d 264, 290; People v. Harris (1986) 175 Cal.App.3d 944, 959.) Appellant’s contentions must also be rejected because the record contradicts some ofhis claims. For example, the record establishes that counsel objected to the gang evidence andthat he received adequate and timely notice of the aggravating evidence the prosecutor planned to use during the penalty phase. (RT 2001-2006, 3212-32333, 3768.) The record additionally showsthat LeMieux knewaboutthe possible benefits the coperpetrators received since he had obtained transcripts related to the coperpetrators’ cases, including transcripts of their preliminary hearings, guilty pleas, and the sentencing hearings. His cross-examination of the coperpetrators also showed that he possessed information aboutthe possible benefits they had received. (RT 1719- 1720, 1889-1891, 2779-2781, 3730, 3819-3820.) Thus, appellant has failed to establish that his attorney acted deficiently in regards to these motions. Appellanthas also failed to demonstrate that LeMieux was incompetent due to his failure to file a motion regarding Moreno’s unavailability or to request penalty phase experts. Because the record does not reveal why LeMieux failed to make these requests or motions, the claim mustbe rejected on appeal. (People v. Maury, supra, 30 Cal.4th at p. 389; People v. Hernandez, supra, 33 Cal.4th at p. 1053; People v. Holt, supra, 15 Cal.4th at p. 704.) In addition, it is possible that LeMieux failed to file the motions because he reasonably believed they would not be helpful or a productive use ofhis time. Thus, the record does not support appellant’s claims in regards to Moreno or 171 possible penalty phase experts. The record similarly fails to support appellant’s contention that his - attorney was ineffective for failing to request experts for the guilt phase, the appointment of second counsel, or continuancespriorto the guilt and penalty phases. (AOB 417, 419-421, 425.) There is nothing to show that the trial court would have granted any such motions. (CT 584.) Thus, LeMieux cannot be deemed incompetentfor failing to make them. (People v. Smithey (1999) 20 Cal.4th 936, 1012; People v. Price (1992) 1 Cal.4th 324, 387.) Moreover, any mid-trial continuance requests may have harmedappellant’s case by alienating the judge or jury. (People v. Johnson (1994) 6 Cal.4th 1, 51.) Although LeMieux in hindsight believes he should have made all of the foregoing motions (RT 3538, 3752, 3760; CT 568-571), a “fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight” and “to evaluate the conduct from counsel’s perspective at the time.” (Strickland v. Washington, 466 U.S.at p. 689; In re Andrews (2002) 28 Cal.4th 1234, 1253.) Moreover, LeMieux’s assessment that he was incompetent does not necessarily buttress appellant’s claim because an attorney’s actions are only deemed ineffective if they fall below an objective professional standard. (People v. Musselwhite, supra, 17 Cal.4th at p. 1260; Jn re Lucas, supra, 33 Cal.4th at p. 721.) In this case, LeMieux acted reasonably at the time, and his failure to file the aforementioned motions did not fall below an objective professional standard for the reasonsalready stated. Thus, counsel did notact in a deficient manner whenhefailed to file motions for a continuance, second counsel, or guilt phase experts. Evenifappellant had somehow shownthathis attorney was incompetent for failing to file any of the aforementioned motions, his claim muststill be rejected because hehas not demonstrated that he was prejudiced by anyofthese 172 alleged failings. For example, the record does not disclose that the lack of any. formaldiscovery or production motions, requests for experts or second counsel, . requests for the aggravating evidence, or motions on Moreno’s unavailability negatively affected appellant’s case or that the outcomeofthe case would have been altered had such motions been made. (See People v. Jackson, supra, 28 Cal.3d at p. 291; People v. Weaver, supra, 26 Cal.4th at p. 978; People v. Anderson, supra, 25 Cal.4th at p. 598; People v. Webster (1991) 54 Cal.3d 411, 437.) Itis also unlikely that the filing of a formal in limine motion would have had any effect on the admission of gang-related evidence sincethetrial court overruled LeMieux’s objections to the gang evidence duringtrial. (RT 2001- 2006, 3212-32333.) In addition, appellant has not shown that any mid-trial continuance motions would have been granted by the trial court or that any additional time would have resulted in locating Moreno or resulted in a different outcome during the penalty phase. (People v. Seaton (2001) 26 Cal.4th 598, 698; People v. Smithey, supra, 20 Cal.4th at p. 1012.) Thus, no prejudice has been demonstrated. Appellant argues that he was prejudiced because LeMieux’s failure to file motions left him ignorant about various items of information or lacking certain items, such as Pierre’s criminal history or the transcripts of the coperpetrators’ police interviews. He also contends that the lack of motions also meant that LeMieux had to request the presence of law enforcement officers at the “last minute.” (AOB 418.) The record belies these claims. As noted previously, even the prosecutor was unawareofPierre’s prior conviction, which meant that a pretrial discovery motion would not have resulted in LeMieux obtaining the information priorto trial. (RT 1466.) Such a motion would also have failed to assist LeMieux in obtaining a transcript of the coperpetrators’ statements to police prior to trial. As previously indicated, LeMieux merely received a transcript of the police interviews during trial 173 because the person he had hired to do the transcripts did not complete them. until after the trial started. (RT 1831-1832.) Finally, LeMieux did not request _ the presence oflaw enforcementofficers at the last minute; as he told the court, he had given the prosecutora list of the requested officers “last week.” (RT 2443.) Thus, appellant has failed to demonstrate that he was prejudiced by counsel’s allegedly deficient behavior. As a result, his claim mustbe rejected. D. Trial Counsel Was Not Ineffective In Regards To His Absence During Jury Selection Appellant contends that LeMieux wasineffective because he was absent during jury selection. (AOB 425-427.) However,he has failed to show thathis attorney acted in a deficient manneror that his case was prejudiced in any way. _ In the case at bar, LeMieux reasonably decided to hire McCann to conductjury selection so that LeMieux could have additional time to prepare for trial. (CT 567.) Although LeMieuxdid not attend jury selection, he talked to McCann aboutjury selection and was “kept abreast” of the jury selection proceedings. (CT 567-568; RT 3726, 3739.) Thus, LeMieux remained involvedin the jury selection process. Appellant has not established why these conversations between McCann and LeMieux did not sufficiently inform LeMieux ofjury selection and the prospective jurors. As a result, LeMieux did not act incompetently in deciding not to attend jury selection. Appellant attempts to avoid this conclusion by arguing that McCann was not in a position to question the prospective jurors about their predispositions regarding aspects of the defense or the prosecution case. (AOB 427.) Appellant does not show howthis alleged problem stems from LeMieux’s absence during jury selection or why the conversations between LeMieux and McCanndid not resolve this problem. Moreover, McCann was adequately informed about the case from LeMieux and from his conversations with 174 appellant. (RT 3846-3849.) Thus, appellant has not established that his. attorney was incompetent. More importantly, appellant has not provedthat his case was in any way prejudiced by LeMieux’s absence during voir dire. For example, he has not alleged or shown any specific instances during voir dire that required LeMieux’s presence, nor has he shown how LeMieux’s presence during voir dire would havealtered the outcomeofthe trial. Although appellant contends that LeMieux had notestablished any rapport with the jury becausehe failed to attend jury selection (AOB 427), this is nothing more than speculation. (Cf. People v. Mendoza (2000) 24 Cal.4th 130, 164-165.) Moreover, he has done nothing to demonstrate that this supposed lack of rapport in any way affected the outcome of the case. Thus, appellant’s claim must be rejected. E. Trial Counsel Acted Competently During Trial Appellant contends his attorney abdicated his duties during thetrial. (AOB 427-442.) As will be shown,this argument mustberejected. 1. Counsel’s Opening Statement Did Not Demonstrate Ineffectiveness Appellant contends his attorney was ineffectivefor failing to introduce evidence or witnesses that he mentioned during opening statement. (AOB 428- 439.) This argument mustbe rejected because it is not supported by the record. a. Relevant Facts And Proceedings During his opening statement, LeMieuxfirst focused on thefacts in the case that were not in dispute. (RT 1296-1314.) He then discussed the facts that were in dispute, delineated why appellant’s accomplices were notcredible, and noted how Sazo had been mistaken when she identified appellant. (RT 175 1315-1317, 1321, 1325-1329.) LeMieux emphasized that the “only” factual. issue in the case was whether the evidence established beyond a reasonable _ doubt that appellant murderedthe victims. (RT 1316-1319.) He further stated that he would not prove who shot Barron and Thomas but would only prove that appellant did not shoot the two men. (RT 1316.) LeMieux also mentioned that appellant had been an informantfor the police and that he had been working “very closely on a day-to-day basis” for Tony Moreno. (RT 1312, 1330.) He noted that “this is a classic case of a frame-up”andthat“the reasons and motivesfor the frame-up will becomeclear as the trial progresses.” (RT 1330.) He added that appellant’s experience as an informant made him “a very, very experienced, sophisticated streetwise individual, intimately versed in the mannerusedby the police to bust narcotics dealers.” Appellant was “too experienced”to “do a clumsystupid thing”such as the murders in this case. (RT 1331.) Healso stated that appellant wouldtell the jury that he had loanedthree firearms to Linton and Cyprian on January 1, 1990. (RT 1312-1313, 1329.) The evidence would also show that the murder weapon was not foundat the crime scene because it had been removed by the actual perpetrators of the crime. (RT 1327, 1329.) He furtherasserted that the evidence wouldestablish that the .38 revolver found at the crime scene was not the murder weapon and that it had not been fired. (RT 1329.) According to LeMieux, the evidence would show that the beeper found at the crime scene belonged to Linton andthe cellular telephone foundat the scene belonged to Cyprian. (RT 1313, 1329.) LeMieux characterized an orange bucket found at the crime scene as being “a very important piece of evidencein this case”that would be “pivotal” in proving that appellant was not present at the house. (RT 1320.) In discussing Sazo’s upcoming testimony, LeMieux noted that her 176 statements regarding a BMW werenotreliable because appellant had sold the BMW.Toprovethis, LeMieux said he would “produce for you the man,- Kevin Chain, who ownsthat automobile now wholives in Ojai.” (RT 1328.) Finally, LeMieux told the jury that although the prosecutor had indicated the evidence would show that appellant sold his Mercedes, boughtclothes, and then went to New York, the “whole scenario” was “all lies.” Instead the evidence would show that appellant merely drove Cyprian to LAX. (RT 1326.) In a declaration and during testimony for a motion for new trial, LeMieux discussed his opening statement. Hesaid that he decided to include Morenoin the opening statement even though he had not interviewed Moreno, served him with a subpoena,or investigated the underlying facts of the case. (RT 3742, 3744; CT 570.) Although LeMieux based his opening statement on the faxed FBI documentandhis discussions with appellant, LeMieux believed 99 66 33 6¢8it was “ill-advised,” “reckless,” “careless,” “incompetent,” and “prejudicial” to have made “‘such fabulous statements before the jury” when he did not know whether they were true or false, had conducted no investigation, and had not “taken steps to determine the accuracy and credibility ofthe information.” (RT 3742-3745; CT 570.) LeMieux also stated that he had originally planned to have appellant testify, but later advised him notto testify. (RT 3792; CT 572.) This decision wasbased, in part, on the prosecutor’s failure to present evidence regarding the New Yorktrip or appellant’s videotaped statement to the police. (RT 3794- 3795, 3836-3839.) LeMieux hadalso believed that appellant could turn outto be the “worse [sic] witness for the defense” because he would be up against a skilled prosecutor who would be “continually hammering at him.” (RT 3837.) Appellant reluctantly followed Lemieux’s advice notto testify. (RT 3796; see also RT 4044; CT 585.) In retrospect, LeMieux believed that his advice was “foolhardy” and contributed to the verdicts in the case. Because LeMieux had 177 been “irresponsible” in saying during opening statementthat appellant would. testify and explain the evidence, LeMieux believed that “much” of the _ prosecution’s evidence wasnotcontradicted. (CT 572.) 2. Counsel WasNotIneffective Appellant’s contention mustfirst be rejected because the record shows that evidence was submitted to support LeMieux’s statements related to the pager, the murder weapon,theplastic bucket, appellant’s purportedtrip to New York,andthe sale of appellant’s BMW. For example, as LeMieuxlater noted, handwriting analysis did not establish that appellant had signed the pager contract and did not eliminate the possibility that Linton had signed the contract. (RT 2330-2332, 2336-2337, 3073-75.) There wasalso evidence that could support LeMieux’s statement that the .38 revolver was not the murder weapon because there were no fingerprints found on the gun, there were no casings or live rounds found in the gun, the ballistics evidence was inconclusive, blood hadnotinitially been noted on the gun, and the first officers arriving at the scene had not checkedthe gun to see if it was warm or smelled as if it had been recently fired. (RT 2294-2295, 2478-2479, 2505-2508, 2510- 2512, 2530-2531, 2672-2673, 3059-3065, 3067-3068.) The evidence similarly could be used to support LeMieux’s statements regarding the plastic bucket because Sazo’s testimony regarding Cyprian’s use of the bucket could be interpreted to contradict the coperpetrators’ testimony and thereby cast doubt on what happened that night, as well as indicate that more people might have been involvedin the murders. (RT 2160-2161, 2195-2196, 3015-3017, 3026.) LeMieux also established, through the testimony of Monique Williams, that appellant did not go to New Yorkandthat he sold his BMW on December 21, 1989. (RT 1967, 2825-2827.) Although LeMieux did not call Kevin Chain to provethe sale of the BMW,hesubmitted a documentfrom the Department of 178 Motor Vehicles confirming that the car had been sold on December 21, 1989. (RT 2826-2827.) While the aforementioned evidence was not always shown _ through defense witnesses, LeMieux said during opening statements that portions ofthe defense would be established through the cross-examination of the prosecution’s witnesses. (RT 1317.) Thus, counsel did notact deficiently in regards to his opening statement related to the aforementioned evidence. (See People v. Frye (1998) 18 Cal.4th 894, 984; see also Phoenix v. Matesanz (Ast Cir. 2000) 233 F.3d 77, 85; United States v. McGill (Ast Cir. 1993) 11 F.3d 223, 227-228.) Counsel also acted competently in regards to his statements that appellant would testify. (RT 1317.) When LeMieux madehis statement, he intended to have appellanttestify. (RT 1304-1305, 3792; CT 572.) In light of appellant’s willingnessto testify (RT 4028-4029, 4044; CT 585), LeMieux’s opening statement “was an appropriate exercise of his decisionmaking responsibilities at trial.’ (People v. Frye, supra, 18 Cal.4th at p. 984.) LeMieuxlater decided that appellant should nottestify because the prosecutor failed to present evidence regarding the New York trip and appellant’s videotaped statementto the police and becausehe feared that appellant would not be able to withstand the potentially withering cross-examination by the prosecutor. (RT 3138, 3794-3795, 3836-3839.) In light of these reasons, counsel cannot be deemed incompetent for advising appellant against testifying even though he had told the jury in opening statement that appellant would testify. (People v. Frye, supra, 18 Cal.4th at pp. 983-984.) LeMieux’s post- trial belief that he was ineffective should not alter this conclusion because he had adequate tactical reasonsat the time that he advised appellant not to testify. (See Jn re Andrews, supra, 28 Cal.4th at p. 1253; People v. Mendoza, supra, 24 Cal.4th at p. 158.) LeMieux’s statements regarding Morenoandthetransfer ofthe weapons 179 also fail to constitute deficient performance. As many courts have held, making. a promise regarding defense evidence and then failing to deliver does not _ necessarily constitute ineffective assistance of counsel. (See, e.g, Commonwealth v. McMahon (Mass. 2005) 822 N.E.2d 699, 712; People v. Burnett (2003) 110 Cal.App.4th 868, 885; Edwards v. United States (D.C. 2001) 767 A.2d 241, 248.) One reasonis that there is always risk that the promised evidence or testimony will not materialize. (Commonwealth v. McMahon, supra, 822 N.E.2d at p. 713.) In this case, LeMieux reasonably based his statements regarding Moreno on the conversations he had with appellant, as well as the FBI document. (RT 3742-3745; CT 570.) Moreover, the failure to submit evidence regarding the transfer of the weapons and appellant’s connection to Moreno was based on the subsequent strategic decision that appellant should nottestify. Furthermore, the failure to produce Morenoas a witness was forced upon LeMieux because he could notlocate Moreno,despite diligent efforts to do so. Because LeMieux believed that he would call appellant and Moreno as witnesses when he madethe statement,it was not unreasonable for him to structure his opening statement around the anticipated testimony of the two men. (Commonwealth v. McMahon, supra, 822 N.E.2dat p. 713; see People v Frye, supra, 18 Cal.4th at pp. 983-984.) Although LeMieux in hindsight believed that he had acted ineffectively (RT 3742-3745; CT 570), the aforementioned factors demonstrate that he acted in a competent manner. (See In re Andrews, supra, 28 Cal.4th at p. 1253; People v. Mendoza, supra, 24 Cal.4th at p. 158.) Appellant’s claim must also be rejected because he has failed to demonstrate that he was prejudiced by his attorney’s alleged incompetence. The statements at issue did not have an impact on the outcomeofthe trial because they were only a minorpart of LeMieux’s opening statement, which focused on the main issue facing the jury, the facts not in dispute, the weakness 180 of the accomplices’ testimony, and the mistaken identification made by Sazo. (RT 1296-1317, 1321-1325-1329.) Moreover, the opening statementlikely had - no adverseeffect on appellant’s case because defense counsel did not make the statementsat issue closely before jury deliberations, but instead made them at the start of a lengthy trial. (Phoenix v. Matesanz, supra, 233 F.3d at p. 95; Commonwealth v. Carney (Mass. App. Ct. 1993) 610 N.E.2d 975, 976; see, e.g., Anderson v. Butler (1st Cir. 1988) 858 F.2d 16, 17.) Although appellant arguesthat the length of deliberations indicates the case was “very close” (AOB 481), the day and a half of deliberations was reasonable in light of the three weeksoftestimony (CT 268-271, 290-293, 294-299, 390), the serious nature of the charges, and the complicated nature of the case. (People v. Carpenter, supra, 15 Cal.4th at p. 422; People v. Taylor, supra, 52 Cal.3d at p. 732.) Appellant’s argument that counsel’s closing argument“destroyedhis integrity in the jury’s eyes” (AOB 481-482) does not establish prejudice becauseitis based on nothing more than speculation. (Cf. People v. Mendoza (2000) 24 Cal.4th 130, 164-165.) Thus, counsel was not ineffective, and appellant’s claim mustberejected. 3. Counsel Adequately Prepared And Gave A_ Closing Argument Appellant contends that his attorney failed to adequately prepare a closing argument. (AOB 439-441.) This argument mustbe rejected because his attorney prepared a coherent closing argument and because appellant does not demonstrate that he was prejudiced in any way by the closing argument. The decision regarding how to argueto the jury is considered inherently tactical, and the effectiveness of an attorney’s oral argumentis difficult to judge from a written transcript. (People v. Barnett (1998) 17 Cal.4th 1044, 1163; People v. Williams (1997) 16 Cal.4th 153, 219.) To prevail on a claim that 181 counsel’s closing argumentconstituted ineffective assistance, a defendant must overcome the strong presumption that his attorney’s actions were based on _ soundtrial strategy underthe circumstances prevailing at that time. (People v. Barnett, supra, 17 Cal.4th at p. 1163) In the case at bar, appellant has failed to overcome this strong presumption becausethe record showsthat counsel had competently prepared a closing argument that was logical and coherent. For example, counsel’s themein closing argument wasthat the prosecutor had not adequately proved whokilled Barron and Thomas. (RT 2995-2996.) LeMieux contendedthat the prosecutor’s case was “so cloudy”onthat issue “that for three weeksit’s been raining in this courtroom onthat issue.” (RT 2996. 3082.) To emphasizethis point, he referred to specific areas where the prosecutor had failed to prove appellant’s guilt of the charged offenses, such as the lack of evidence that appellant demonstrated consciousness of guilt, the lack of evidence that a robbery occurred,the lack of any handwriting analysis linking appellant to the pagercontract, and the weaknessesin the fingerprint evidence. (RT 2997-2998, 3000-3007, 3009-3011, 3014-3015, 3020-3024, 3026-3029, 3073-3076, 3078- 3081.) LeMieux’s preparation was also shown by the numerous times he seamlessly worked quotes from the trial transcripts into his closing argument and the numberoftimes he referred to diagramsor charts that he had produced for the closing argument” (RT 3003-3004, 3007, 3009-3010, 3012-3013, 3018-3021, 3030-3037, 3050-3056, 3063.) Thus, LeMieux’s closing argument was well-prepared and delivered in a competent manner. 38. Appellant argues in passing that LeMieux admitted that he did not know what the witnesses would say on the stand. (AOB 440.) However, LeMieuxactually stated that he knew what evidence the prosecutorhad butthat “it wasn’t until after each person testified” and he saw what evidence was produced by the prosecutor “and what was omitted from this case” that he “gained a sufficient knowledgeofthe case to be able to construct an argument based on the evidence presented.” (RT 2894-2895.) 182 Appellant attempts to avoid this conclusion by arguing that the- objections lodged by the prosecutor during LeMieux’s closing argument - showed that LeMieux’s closing argument did not go well. (AOB 441-442.) However, the objections merely showed that counsel was vigorously making his arguments. In addition, the numberof objections was not significant in light of the length of LeMieux’s closing argument. Appellant additionally argues that the prosecutor seized on LeMieux’s alleged blunders when hestated during rebuttal argumentthat “the deception continues” and that it had “continued as a perversion through this entire system.” (AOB 442; RT 3084.) However,as the prosecutorlater explained, his comments did not refer to LeMieux’s closing argument, but instead referred to eeappellant’s “attempt to secure false testimony from witnesses and pay offpeople to come and say he was with them when he wasn’t, and an attempt to get Peachesto pull records which demonstrated his ownership of the pager. And he’s out there actively trying to falsify and create evidenceat a time long before this case even hit the judicial system.” (RT 4173.) Thus, counsel did notact in an incompetent mannerduring closing argument. . Appellant’s claim must also be rejected because he has not demonstrated that LeMieux’sallegedly deficient closing argument somehowprejudiced his case. As a result, he has failed to meet his burden of showingthat his attorney wasineffective. (People v. Majors, supra, 18 Cal.4th at p. 430.) F. Counsel Performed Competently At The Penalty Phase Appellant contendsthat his attorney acted in a deficient manner during the penalty phase. (AOB 443-466.) This argument must be rejected for the reasons that follow. 183 1. Counsel Adequately Appreciated The Constitutional Significance Of The Penalty Phase Of The Trial And Was Familiar With How To Try A Penalty Phase Proceeding Appellant contendsthat his attorney did not appreciate the constitutional significance ofthe penalty phase and wasnotfamiliar with howtotry a penalty phase proceeding. (AOB 445-446, 448-449.) These arguments must be rejected. A “[d]efendant bears the same burden of demonstrating ineffective assistance of counsel at the penalty phase as at the guilt phase.” (Peoplev. Cunningham (2001) 25 Cal.4th 926, 1030.) This means that a defendant must establish that his attorney’s representation fell below an objective standard of reasonableness and that prejudice resulted. (/bid.) In the caseat bar, appellant has failed to demonstrate either aspect ofthis standard. Contrary to appellant’s assertion, LeMieuxrealized the significance of the penalty phase since he knew from “the very inception ofthis case”that one would be required if appellant was convicted of the charged offenses and the special circumstances were foundto be true. (RT 3664, 3760.) LeMieux had “done some reading and inquiry and preparation” for the penalty phase prior to the end ofthe guilt phase of the trial. He also had “‘a pretty good idea ofwhat was going to happenin the penalty phase in terms ofwhat evidence the People were going to put on and how wewere going to meet it and what our strategy was.” (RT 3760.) LeMieux also discussed the penalty phase with appellant“numeroustimesbeforethis trial began.” These discussions included “all of the options available” to appellant, the factors that could be used in aggravation, and what LeMieux would ask each witness. (RT 3125, 3129, 3760.) Thus, the record does not demonstrate that LeMieux was unawareofthe importance of the penalty phase or that he was unfamiliar with how to try a penalty phase proceeding. Appellanthasalso failed to show that LeMieux’salleged incompetence 184 prejudiced his case. Therefore, his claim must be rejected. (People v. Majors,. supra, 18 Cal.4th at p. 430.) 2. Counsel Acted Competently In Not Requesting A Continuance Prior To The Penalty Phase Appellant contends that his attorney was ineffective becausehefailed to request a continuance prior to the penalty phase. (AOB 446-448.) This contention must be rejected. a. Relevant Facts And Proceedings In a declaration filed with appellant’s motion for new trial, LeMieux stated that because he had never handled a penalty phase in a capital case, he “naively believed” that he would be given 30 days to prepare for the penalty portion ofthe trial. As a result, LeMieux did not conduct any investigation for the penalty phase until appellant had been found guilty. LeMieux believedthat he should have obtained a continuanceto investigate the aggravating evidence, which would have shownthat appellant’s involvementin the prior crimes was “minimal” and “negligible.” A continuance would also have given LeMieux time to investigate appellant’s psychological background,interview friends and associates, obtain a “mental status examination,” and determinethe effects of chronic drug and alcohol use. (CT 571.) During a hearing on the motion for new trial, LeMieuxtestified that he had been presented with the aggravating evidenceprior to the trial. (RT 3768.) LeMieux spoke to appellant’s parents and sisters prior to the penalty phase. (RT 3760-3762, 3781-3781.) These conversations were not “intensive” conversations, but they did allow LeMieux to “garnera little bit ofinformation here and there,” which gave him a “picture ofthe type ofpersonthat [appellant] was.” (RT 3782-3783.) LeMieux also discussed some of the aggravating 185 evidence with appellantprior to the penalty phase. (RT 3771.) After the guilty. verdicts, LeMieux had a “long conversation”with appellant’s father regarding - who should be called as a witness. (RT 3762.) However, appellant gave LeMieux “explicit instructionsnot to present any mitigating evidence,” but was “subsequently dissuaded from that view.” (RT 3659.) b. Counsel Was Not Ineffective Appellant has failed to show that LeMieux was ineffective for not requesting a continuanceprior to the penalty phase. First, the record indicates that the trial court would not have granted a continuance motion at that point in the case because some ofthe jurors had “time problems” and “vacation schedules” and the court was concerned about losing jurors. (RT 3132.) Because the motion wouldlikely have been futile, LeMieux cannot be deemed incompetentfor failing to make it. (People v. Smithey, supra, 20 Cal.4that p. 1012.) Moreover, a continuanceat that point in the trial may have harmed appellant’s case by alienating the judge or the jury. (People v. Johnson, supra, 6 Cal.4th at p. 51.) Although LeMieux in hindsight believes that he should have made a continuance motion (CT 571), a “fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight” and “‘to evaluate the conductfrom counsel’s perspective at the time.” (Strickland v. Washington, supra, 466 U.S. at p. 689; In re Andrews, supra, 28 Cal.4th at p. 1253.) During appellant’s trial, LeMieux may have reasonably believed that a continuance was not necessary because appellant hadinitially instructed him not to present any mitigating evidence. (RT 3659.) LeMieux’s post-trial assessment that he was incompetent does not buttress appellant’s claim because an attorney’s actions are only deemed ineffective if they fall below an objective professional standard. (People v. Musselwhite, supra, 17 Cal.4th at p. 1260; Jn re Lucas, supra, 33 Cal.4th at p. 186 721.) In this case, LeMieux acted reasonably at the time; therefore, his failure to file a continuance motion did not constitute deficient performance. Appellant additionally argues that LeMieux should have requested a continuance when helearned that the prosecutor had given him an illegible photocopy of a police report regarding one of the prior offenses that the prosecutor wantedto use in aggravation. (AOB 447-448.) However, LeMieux did requestthat he be allowed to cross-examine the prosecutor’s witnessafter lunch so that he would have time to read the police report. (RT 3174.) Moreover, the lack of a readable copy of the police report did not leave LeMieux uninformed aboutthe facts underlying the prior offense, as shown by LeMieux’s attempts to convince the court to exclude evidence regarding that offense. (RT 3164-3173.) Thus, appellant has failed to demonstrate that his attorney acted in a deficient manner. Appellant has similarly failed to show that he was prejudiced by the failure to request a continuance. First, the appellate record does not show that there was a “reasonable probability that the trial’s outcome would have been different had counsel sought and obtained such a continuance.” (People v. Seaton, supra, 26 Cal.4th at p. 698.) As noted previously, there is also nothing to show that the trial court would have granted a continuance motion at that point. (Ibid.; People v. Smithey, supra, 20 Cal.4th at p. 1012.) Therefore, appellant’s claim mustbe rejected. 187 3. This Court Should Reject Appellant’s Claim That Counsel WasIneffective In Regards To His Failure To Hire An Investigator, A Mitigation Specialist, Law Enforcement Expert, And A Mental Health Expert, And Failed To Request Funds To Assist Him In Preparing For The Penalty Phase Of The Trial Appellant contendsthat his attorney was ineffective because hefailed to hire an investigator, a mitigation specialist, a law enforcement expert, and a mental health expert and failed to request any fundsto assist him in preparing for the penalty phase ofthe trial. (AOB 449-452.) These arguments must be rejected for several reasons. First, appellant has not shown why LeMieux failed to hire an investigator, a mitigation specialist, or a law enforcement expert or why he failed to request fundsto assist him in preparing for the penalty phase ofthe trial. Thus,these portions ofthe claim are more appropriately raised in a habeas corpus petition. (People v. Carter (2003) 30 Cal.4th 1166, 1211; Peoplev. Maury, supra, 30 Cal.4th at p. 389; People v. Holt, supra, 15 Cal.4th at p. 704.) Appellant has also failed to show that additional funds were needed by LeMieux to prepare for the penalty phase. In addition, LeMieux may have reasonably decided not to ask for any funds or request an investigator, mitigation specialist, law enforcement expert, or a mental health expert because appellantinitially did not want LeMieux to present any mitigating evidence and did not want him to oppose any aggravating evidence. (RT 3125-3128, 3148, 3154, 3157-3158, 3659.) LeMieux also decided not to hire a mental health expert because there was no indication that “that there was any type of mental disorder involved in this case at all.” (RT 3783, 3787, 3789, 3800-3801.) Thus, there is nothing to indicate that counsel was ineffective. Appellant has also failed to specifically demonstrate that the outcome of the penalty phase would have been different had LeMieux hired an investigator, mitigation specialist, law enforcement expert, or mental health 188 expert or requested additional funds. (People v. Majors, supra, 18 Cal.4th at. p. 430.) Thus, appellant has failed to sufficiently support his contentions, and _ they must be rejected here. 4. Appellant Has Not Established That His Attorney Was Ineffective For The Manner In Which He Handled The Agegravating Evidence Appellant asserts that his attorney was ineffective for failing to adequately investigate or rebut the aggravating evidence. (AOB 452-455.) The record does not support these contentions. a. Relevant Facts And Proceedings During a hearing on the motion for new trial, LeMieuxtestified that he had readthe police reports about the aggravating evidence and discussed some of the aggravating evidence with appellant prior to the penalty phase. (RT 3771, 3774-3775.) During oneofthese discussions, appellant admitted that he did have a loaded revolver in his car when he was stopped for traffic infraction. As a result, there was no way to “mitigate that conduct.” (RT 3774- 3775.) LeMieux did not attempt to contact any of the witnesses to any of the aggravating incidents because his strategy was to “down play” appellant’s involvementin the incidents, rather than “try those cases in front of the jury and magnify their importance.” (RT 3771-3774, 3776, 3781.) LeMieux also wanted to obtain a stipulation from the prosecutor that appellant had only been convicted of a misdemeanorin the 1983 assault on Kenneth Moore and had not been charged with shooting Moore. (RT 3772.) LeMieux believed that the twostipulations and his cross-examination ofthe prosecution witnesses “down played the aggravating aspect ofthat incident” or took “muchofthe sting out 189 of it” and wasthe “besttactical decision to be madeat the penalty phase.” (RT. 3772, 3774.) In regards to the 1983 assault with a deadly weapon on Officer Carl Sims, LeMieux did not“try to dig up evidence”to exculpate appellant because the officer wrote in his report that he did not see who shot at him. LeMieux preferred to “let it sit like that and rely on cross-examination and bring that pointout to the jury.” (RT 3777.) He believed that in some casesit would be harmful to “go out and alert people” regarding the questions that would be asked at trial. (RT 3777.) For that reason, LeMieux believed it was “sufficient” to have the officer admit on the witness stand that he did not see whoshot at him. (RT 3778.) b. The Record Fails To Establish That Counsel Was Ineffective Appellant contends that his attorney was ineffective for failing to investigate or rebut the aggravating evidence that was presented by the prosecution. (AOB 452-455.) However, the record does not show that LeMieux acted incompetently in the way he handled the aggravating evidence. LeMieux was adequately informed aboutthe details ofthe aggravating evidence by reading the police reports about the incidents and by discussing those incidents with appellant. (RT 3771, 3774-3775.) LeMieux opted to forego an investigation on the incident involving possession of a concealed firearm because appellant had admitted that the underlying facts were true. (RT 3774- 3775.) LeMieux decided notto investigate or strongly rebut the other incidents becausehedid not wantto alert the witnesses to his potential cross-examination questions and becausehis strategy was to “down play” appellant’s involvement in the incidents, rather than “try those cases in front of the jury and magnify their importance.” (RT 3771-3774, 3776-3777, 3781.) These tactics were 190 reasonable. (See People v. Williams (1997) 16 Cal.4th 153, 261.) LeMieux. also preferred to emphasize during cross-examination and throughstipulations | the weaknessesin the prosecution’s case, such as Officer Sims’ admission that he did not see whoshotat him,the fact that manyofthe incidents did notresult in charges, the fact that appellant was only convicted of a misdemeanorin the Mooreincident, and the lack ofphysical evidence linking appellant to some of the offenses. (RT 3268-3269, 3273, 3293-3294, 3297-3299, 3772, 3774, 3777- 3778.) Thus, counsel did not act incompetently. Appellant attempts to avoid this conclusion by arguing once again that LeMieux did not realize until the night before the penalty phase that he had been given unreadable police reports. (AOB 454-455.) As noted previously, the unreadable report involved only one of the aggravating incidents and did not leave LeMieux uninformed aboutthefacts of the incident, as indicated by his forceful efforts to convince the court to exclude evidence related to the offense. (RT 3164-3173.) Thus, appellant has failed to demonstrate that his attorney acted in a deficient manner. Appellant has additionally failed to demonstrate that he was prejudiced by his counsel’s alleged failings. For example, appellant has not shown what LeMieux would have uncovered had he conducted a more thorough investigation, nor has he demonstrated that LeMieux would have been able to more successfully rebut the aggravating evidence if he had conducted investigations into the incidents. As a result, appellant’s claim mustbe rejected. 5. Counsel Competently Failed To Make Futile Motions Regarding The Admissible Aggravating Evidence Appellant contendsthat his attorney wasineffectiveforfailing to “adopt appropriate pretrial strategies” to prevent the prosecutor from introducing aggravating evidence of crimes in which appellant wasnotthe sole perpetrator 191 or from introducing aggravating evidencethat violated the statute oflimitations. or double jeopardy principles. (AOB 455-457.) As noted in Argument XI, | supra, the evidence was properly admitted. Thus, counsel cannot be deemed ineffective for failing to make futile motions or objections to the evidence, and appellant cannot demonstrate that he was prejudiced by counsel’s alleged shortcomings. (See People v. Hines, supra, 15 Cal.4th at p. 1038 fn. 5; People v. Price, supra, 1 Cal.4th at p. 387.) Moreover, the record does notestablish why counselfailed to try to prevent the admission ofthe allegedly inadmissible evidence. As a result, the claim must be rejected on appeal. (People v. Carter, supra, 30 Cal.4th at p. 1211; People v. Maury, supra, 30 Cal.4th at p. 389.) 6. Counsel Adequately Investigated And Presented Mitigating Evidence Appellant contendsthat his attorney failed to adequately investigate and present mitigating evidence during the penalty phase. (AOB 457-466.) However, there is nothing to indicate that counsel wasineffective. a. Relevant Facts And Proceedings After appellant was convicted, LeMieux informed the trial court that appellant wished to represent himself and was “absolutely insistent that no mitigating evidence be brought on his behalf.” Appellant had instructed LeMieux “in the strongest terms” not to call his mother, wife, relatives, “or anybody connectedto his family” as witnesses during the penalty phase. (RT 3125, 3127, 3130.) LeMieux noted that appellant’s mother had “very serious heart problems” and that appellant was “absolutely insistent” that she not be forced to testify. (RT 3127.) LeMieuxstated that this was “not a last minute decision” by appellant but was “something that has beenin the works through the trial whenever wetalked about the penalty phase.” (RT 3129.) 192 The next day, appellant told the court that he did not want any evidence. to be presented andthat he did not want his family membersto becalled as _ witnesses. (RT 3142.) LeMieuxalso reiterated that appellant had instructed him not to admit any mitigating evidence. (RT 3148.) LeMieux furtherstated that appellant did not want him to “present any mitigating evidence ofhis general character, gang background evidence, whether he’d be a good confinementrisk, things like that.” As a result, LeMieux had not discussed those matters with appellant’s family, although he had prepared what would be his presentation of mitigating factors, if he was allowed to present such evidence. (RT 3154.) LeMieux again told the court that appellant did not want his mother to be called as a witness. (RT 3157.) The court told appellant to think about having LeMieux present mitigating evidence. The case was then adjourned until the next day, when the penalty phase commenced. (RT 3158, 3174.) After the jury recommendedthat appellant be sentenced to death, he filed a motion for newtrial. During a hearing on the motion, LeMieuxtestified that during the guilt phase, he had a conversation with appellant to determine “what kind ofperson heis, about what he’s done.”Healso spoke to appellant’s parents andsisters prior to the penalty phase. (RT 3760-3762, 3781-3782.) Although these conversations were not “intensive,” LeMieux would “garner a little bit ofinformation here and there,” which gave him a “picture ofthe type ofperson that [appellant] was.” (RT 3782-3783.) Appellant’s mother said that appellant was “courteous, respectful, polite, never a problem in the house, never swore, nevertalked back, et cetera.” (RT 3761-3762.) After the guilty verdicts, LeMieux had a “long conversation” with appellant’s father regarding who should be called as a witness during the penalty phase. (RT 3762.) However, appellant gave LeMieux “explicit instructions not to present any mitigating evidence.” He was“subsequently dissuaded from that view,” butdid insist that 193 his father and mothernotbecalled to the witness stand becauseoftheir health.. (RT 3659.) Appellanttestified that during the guilt phase ofthe trial, LeMieux never discussed the penalty phase with him and never asked him about his background. (RT 4030, 4083-4084.) After the trial court refused to remove LeMieuxas appellant’s attorney, LeMieux talked to appellant’s mother,sisters, and Monique Williams’ aunt and uncle. Appellant initially did not want LeMieuxto present any mitigating evidence because LeMieux did not wantto handle appellant’s case. He was also concerned abouthis parents testifying becauseoftheir age. The next day, appellant decided that mitigating evidence should be presented. (RT 4035, 4075-4077, 4080-4081.) Appellant’s mothertestified that LeMieux never asked about appellant’s background,and appellant’s twosisters testified that LeMieux only discussed appellant’s background with them brieflyjust beforethey testified. (RT 4093- 4095, 4101-4102, 4107-4108.) b. Counsel Was NotIneffective Although appellant contendsthat his attorney wasineffectivefor failing to investigate and present mitigating evidence (AOB 457-466),his claim is not supported by the record. In regards to appellant’s claim involving his family members, the record showsthat LeMieux did conduct adequate interviews with appellant’s relatives. LeMieux not only had a discussion or discussions with appellant to gain information about appellant’s background and to discuss the penalty phase with him, but he also spoke to appellant’s parents andsisters. (RT 3129, 3760-3762, 3781-3782.) These conversations with appellant’s relatives, though not“intensive,” gave LeMieux a “picture ofthe type ofperson that [appellant] was.” (RT 3782-3783.) LeMieux also had a “long conversation” with appellant’s father regarding who should be called as a 194 witness during the penalty phase. (RT 3762.) Thus, contrary to appellant’s. assertion, LeMieux did conduct an adequate investigation into appellant’s _ background. Although LeMieux may not have conducted detailed interviews with appellant’s mother orsisters, this was caused by appellant’s initial directive that LeMieux not present any mitigating evidenceorcall relatives to the witness stand. (RT 3125, 3127, 3130, 3142, 3148, 3154, 3157, 3659.) More importantly, appellant does not point to any information that would have been discovered had he conducted moreintensive interviews with family members or sought other avenues of investigation. Based on these factors, LeMieux acted competently. (See Strickland v. Washington, supra, 466 U.S.at p. 699 [counsel could surmise through conversations with the defendantthat character and psychological evidence would not be helpful]; Zn re Scott (2003) 29 Cal.4th 783, 826-827 [attorney is not required to present mitigating evidence over a defendant’s objections]; Jn re Andrews (2002) 28 Cal.4th 1234, 1254, 1259 [attorney is not required to present mitigating evidence over the defendant’s objections; defendantfailed to show that there was any mitigating evidencethat would have been uncovered during an investigation]; People v. McDermott, supra, 28 Cal.4th at p. 991-992 [counsel not ineffective even though he did not interview witnesses until the day of their testimony].) Appellant attempts to avoid this conclusion byciting to Wiggins v. Smith (2003) 539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed. 2d 471. (AOB 459-460, 464- 465.) However, in Wiggins, the defense attorneys abandoned a thorough investigation into the defendant’s background, despite information knownto them that the defendant’s mother wasan alcoholic, the defendant had stayed in several foster homes and showed emotional problems while there, the defendant was frequently absent from school, and the defendant wasleft alone for days without food on at least one occasion. (/d. at p. 525.) In contrast, the discussions with appellant’s family did not reveal any ofthe types ofissues that 195 were evident in Wiggins and did not indicate that any further avenues of investigation should be conducted. Indeed, appellant’s mother told LeMieux _ that appellant had always been “courteous, respectful, polite, never a problem in the house, never swore, never talked back, et cetera.” (RT 3761-3762.) Thus, counsel acted in a competent manner. (See Strickland v. Washington, supra, 466 U.S.at p. 699.) Counselalso acted competently in regards to LeMieux’salleged failure to investigate or present additional evidence regarding appellant’s work as a police informant. (AOB 465-466.) First, there is nothing in the record to indicate whether or why LeMieuxfailedto investigate the possible existence of mitigating evidence regarding appellant’s status as an informant. Asa result, appellant’s claim mustbe rejected on direct appeal. (People v. Cudjo (1993) 6 Cal.4th 585, 634.) Moreover, any failure by LeMieux to conduct such an investigation may have been caused by appellant’s insistence that mitigating evidence notbe presented. (RT 3125, 3127, 3139, 3142, 3154.) As noted previously, LeMieux diligently attempted to locate Moreno during the guilt phase ofthetrial, and there is nothing to indicate that LeMieux would have been able to locate Moreno or that Moreno would have been willing to talk to LeMieux during the penalty phase. There is also nothing to indicate that any reports from the United States Attorney’s Office or the State Board ofControl would have been admissible or that there were any witnesses willing to talk to LeMieux regarding appellant’s informantactivities. Appellant has further failed to demonstrate that his activities as an informant were necessarily mitigating. Thus, appellant has not demonstrated that his attorney acted in an incompetent manner. (See Jn re Andrews, supra, 28 Cal.4th at p. 1257 [evidence that defendant argues should have been presented was not unambiguously mitigating]; People v. Medina(1995) 11 Cal.4th 694, 773 [a court “cannot assumefrom silent record that particular witnesses were ready, 196 willing and able to give mitigating testimony’].) Appellant has also failed to show that he was prejudiced by his - attorney’s alleged failings. For example, there is nothing to show that LeMieux would have uncovered additional mitigating evidence had he conducted a more thorough investigation or interviewed appellant’s family members in a more detailed manner. (See People v. Medina, supra, 11 Cal.4th at p. 773; People v. Wrest (1992) 3 Cal.4th 1088, 1116.) Moreover, there is nothing to indicate that the jury would have been inclined to sentence appellant to life imprisonment if they had received additional mitigating evidence. (n re Andrews, supra, 28 Cal.4th at p. 1265.) Appellant’s contentions to the contrary (AOB 488-490)are based on nothing more than speculation and are inadequate to demonstrate prejudice. (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) Therefore, appellant’s claim mustbe rejected. 7. Counsel’s Delivered His Closing Argument In A Competent Manner Appellant contends that LeMieux’s unfamiliarity with the law regarding capital sentencing prevented him from competently delivering his closing argument during the penalty phase. (AOB 466.) The record indicates otherwise. Although appellant contends that “virtually every argument” LeMieux made “ran headlong into an objection” (AOB 466), this is not the case. The prosecutor only madefive objections (RT 3441-3446, 3448, 3450- 3452) that were sustained during LeMieux’s lengthy closing argument. (RT 3440-3485.) Most ofLeMieux’s arguments went unchallenged. LeMieux did not comment that the objections and side-bar conferences interrupted “his ability to provide a coherent argument to the jury to spare his client’s life.” (AOB 466.) Rather, LeMieux merely commented that the one objection at issue at the time had “seriously interrupted” his argument. (RT 3459.) He was 197 in no wayindicating that he was unable to make a coherent argument, and,in. fact, continued his argument in a coherent and logical manner. (RT 3460- _ 3485.) Thus, the record does not support appellant’s contention that his attorney was incompetent during closing argument. The recordalso fails to show that the jury would have been inclined to sentence appellant to life imprisonment had LeMieux given a closing argument that received no objections from the prosecutor. Therefore, his claim must be rejected. G. Appellant Must Demonstrate That He Was Prejudiced By His Attorney’s Alleged Acts Of Incompetence In Order To Prevail On His Claims That His Attorneys Were Ineffective Appellant contendsthat pursuant to United States v. Cronic (1984) 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657, he does not need to show prejudice to establish his claims of ineffective assistance of counsel. (AOB 467-475.) However, Cronicis inapplicable. In Cronic, the United States Supreme Court stated that prejudice need not be shown if “counsel entirely fails to subject the prosecution’s case to meaningful adversarialtesting.” (United States v. Cronic, supra, 466 U.S.at p. 659.) However, the Supreme Court has stressed that for Cronic to apply, “the attorney’s failure must be complete.” (Bell v. Cone (2002) 535 U.S. 685, 697, 122 S.Ct. 1843, 152 L.Ed.2d 914.) This Court has similarly noted that Cronic applies only when “‘counsel’s deficiencies were so severe as to result in a complete breakdownofthe adversary process.” (People v. McDermott, supra, 28 Cal.4th at p. 991; see also Jn re Visciotti (1996) 14 Cal.4th 325, 353 [application of Cronic has been “limited’’].) Thus, an argumentthat an attorney “failed to work hard enough”falls “outside of the small exception carved out by Cronic.” (In re Avena (1996) 12 Cal.4th 694, 728.) In the case at bar, appellant’s contentions are merely that his attorneys failed to work hard enough to defend him. Thus, Cronic does not apply. Un 198 re Avena, supra, 12 Cal.4th at p. 728.) Cronic also does not apply because. appellant’s attorneys did not completely fail to defend appellant. As noted - previously, McCann opposedseveral challenges to prospective jurors made by the prosecutor, challengedatleast five jurors for cause, and made three Wheeler motions. (RT 438, 655, 746, 803, 951, 957, 1000-1008, 1070, 1074, 1210, 1226, 1233.) LeMieux gave opening statements and closing arguments, cross- examined the prosecution’s witnesses, objected to certain testimony and evidence, and presented a numberofwitnesses on appellant’s behalf during the guilt and penalty phases ofthe trial. Thus, appellant’s attorneys did not fail to subject the prosecution’s case to adversarial testing. As a result, he must demonstrate that he was prejudiced by his attorneys’ allegedly deficient acts. (See, e.g., Bell v. Cone, supra, 535 U.S. at p. 697-698 [“the failure to adduce 39 66 mitigating evidence and the waiver of closing argument” “are plainly of the same ilk as other specific attorney errors” that are subject to Stricklana’s requirement that prejudice be established]; People v. McDermott, supra, 28 Cal.4th at p. 991 [because attorney “vigorously represented defendant and subjected the prosecution’s case to adversarial testing,” Cronic did not apply]; People v. Majors, supra, 18 Cal.4th at p. 431 [record did not support claim that Cronic applied]; In re Visciotti, supra, 14 Cal.4th at p. 352-353 [although attorney engaged in “multiple” deficient acts, prejudice needed to be established] In re Avena, supra, 12 Cal.4th at p. 727-728 [even though attorney’s representation “was minimal at best,” a showing of prejudice was required].) Appellant argues that prejudice should not be required because certain trial exhibits have not been located. (AOB 473-475.) However, appellant does not adequately explain how the missing exhibits prevent him from establishing prejudice. His contentions do not directly involve the exhibits, and thereis nothing to indicate that a review of such exhibits is necessary to resolve 199 appellant’s claims. Although appellant contends that “the option ofre-. examining”the exhibits or “retrac[ing] the steps LeMieux should have taken” _ is no longer available (AOB 473-474), such actions are not appropriate on direct appeal, whichis limited to the four corners of the record. (People v. Cunningham (2001) 25 Cal.4th 926, 1003; Jn re Carpenter (1995) 9 Cal.4th 634, 646.) Thus, the missing exhibits do not hinder appellant’s ability to establish prejudice. Appellant further argues that prejudice can be shown by LeMieux’s alleged broken promises andthe failure to call Moreno as a witness. (AOB 477-490.) However, appellant does not show how these twoalleged failings necessarily demonstrate prejudice for all ofhis claims of ineffective assistance of counsel, including those claims that do not involve LeMieux’s opening statement or Moreno. Additionally, as shown in the previous subsections, appellant was not prejudiced byhis attorneys’ alleged deficiencies. Therefore, his contentions mustbe rejected. Appellant finally argues that, cumulatively, the asserted instances of ineffective assistance of counsel violated his constitutional rights. (AOB 490- 491.) However, as shown, supra, appellant’s attorneys were not ineffective. Therefore, his claim must be rejected. (People v. Stewart (2004) 33 Cal.4th 425, 521; People v. Carter (2003) 30 Cal.4th 1166, 1023; People v. Burgener (2003) 29 Cal.4th 833, 884; People v. Smithey (1999) 20 Cal.4th 936, 1017.) 200 XVI. APPELLANT VALIDLY WAIVED HIS RIGHT TO REPRESENT HIMSELF Appellant contends that the waiverofthe nght to represent himselfwas invalid becausethe trial court gave him inaccurate information. (AOB 492- 498.) The record belies this claim. A. Relevant Facts And Proceedings On Tuesday, October 8, 1991, after the verdicts were read in the guilt phase ofthe trial, LeMieux told the court that appellant wished to represent himself. (RT 3125-3126.) LeMieux explained that appellant had “lost all confidence”in him because he had not provedthat appellant was innocent, had not produced Morenoas a witness, and had notcalled appellant as a witness. (RT 3126.) LeMieux also explained that appellant did not want him to introduce any mitigating evidence. (RT 3125, 3127-3128, 3130.) LeMieux stated that he had “an outline” ofwhat he would do during the penalty phase if wasallowedto do so andthat he had explained to appellant what he would ask each witness. (RT 3125, 3128.) LeMieux addedthat he did not have much mitigating evidence. (RT 3128.) The court andthe parties agreed that appellant would have until October 9, 1991, to decide whether to represent himself, and that the penalty phase would begin on October 10, 1991. (RT 3133-3134.) On October 9, appellant stated that he still wanted to represent himself because he had no confidence in LeMieux. (RT 3139.) Appellant explained that he did not want LeMieuxto represent him because LeMieux had notcalled him as a witness and had not subpoenaedcertain witnessesto testify. He added that he did not wantto call his family members as witnesses during the penalty phase. (RT 3141.) The court told appellant that LeMieux had been hired to handle “the 201 entiretrial,” including the penalty phase. The court noted, “The prosecution has. given him all the material, and yesterday he said he’s prepared to go forward. . That’s why I don’t understand whyyouare doingthis.” (RT 3144.) The court later reiterated, “And you heard Mr. LeMieux yesterday. He said he was prepared to go on. And hehasall the material on this matter. Andheis prepared on this thing.” The court again asked appellant to explain why he wanted to represent himself at this stage of the proceedings. (RT 3145.) The court again stated, “Mr. LeMieux hassaid yesterday that he was prepared. And so this is why - - if I look confused, I am confused, okay?” (RT 3146.) The court told appellant that LeMieux “knowsall aboutthis case” and that LeMieux “had done“a great” and “masterful job,” “an amazingly good job,” and a “very good job.” (RT 3146-3147.) The court added, Myobservation is that Mr. LeMieux did a really outstanding job. And this is midstream. I don’t understanding your thinking, especially, as I said, for you to dismiss him at this time. An attorney takes a case forthe entire trial. And he’s prepared. So how can you prepare yourself when he’slived with this all this time? When he’s been prepared? How are you goingto prepare yourpart of the case? (RT 3147.) LeMieuxtold the court that appellant did not wantto introduce any mitigating evidence. (RT 3147-3148.) The court told appellant, “Now,I cannotsit here and believe that you are truly inviting the death penalty.” Appellant stated that there was no difference between the two sentences. (RT 3149.) The prosecutor told appellantthat “self-representation is never a good thing.” (RT 3149.) He cautioned that it was always better to have an experienced attorney who understood the trial process, knew how to cross- - examine witnesses, and could help devise meaningfultrial strategies. (RT 3150.) The court reiterated that it was “very concerned”that appellant wanted 202 to represent himself during the penalty phase. The court offered to allow. appellant to discuss the matter with his family. (RT 3151.) After speaking with appellant, LeMieuxtold the court that he did not wantto be dismissed as appellant’s attorney. (RT 3151-3152.) The court told LeMieuxthat it had the discretion to allow appellant to represent himself. The court also stated that it was nottrying to “push” appellant “into anything” and wanted to hear appellant’s thoughts on the matter. (RT 3152-3153.) The court asked appellant, “I mean, so you want to keep your attorney so you can be properly represented? How’s that?” Appellant responded, “Yes.” The court again asked, “And do you agree with me that you should be represented?” Appellant responded, “Yes.” The court later added, “Now, Mr. LeMieux has been preparing this. Yesterday he said that. This is why I was very upset that you felt that you’d be able to handleall of this.” (RT 3153.) B. The Record Does Not Show That Appellant Waived The Right To Represent Himself Based On The Court Giving Him Inaccurate Information “A defendant who knowingly and intelligently waives the right to counsel possesses a right under the Sixth Amendment of the federal Constitution to conducthis or her own defense.” (People v. Jenkins (2000) 22 Cal.4th 900, 959; see People v. Danks (2004) 32 Cal.4th 269, 295.) When a defendant movesto represent himself, the trial court must make the defendant aware of the dangers and disadvantages ofself-representation. (People v. Jenkins, supra, 22 Cal.4th 900, 959.) In the case at bar, appellant contends that he withdrew his motion to represent himselfbecausethe court gave him inaccurate information regarding LeMieux. (AOB 492-498.) However, the record shows that appellant withdrewhis self-representation motion andtold the court that he wantedto be represented by LeMieux only after he had a discussion with LeMieux. (RT 203 3152-3153.) Thus, “it is evident that it was the defendant’s consultation with- defense counsel rather than the court’s commentsthat persuaded defendant to . withdraw his motion for self-representation.” (People v. Jenkins, supra, 22 Cal.4th at p. 961; cf. People v. Snow (2003) 30 Cal.4th 43, 70.) Moreover,the court’s comments were not improper. Rather, the court was properly advising appellant of the dangersofself-representation. (People v. Jenkins, supra, 22 Cal.4th at p. 961) The court’s comments were not inaccurate because they were based uponthe court’s observations and LeMieux’s remarks abouthis readiness on October 8, 1991. (RT 3125, 3128, 3144-3147.) Thus, the court did not give appellant inaccurate information about LeMieux,nordidthe court’s comments cause appellant to withdraw his self-representation motion. Therefore, appellant’s claim mustbe rejected. XVI. THIS COURT HAS REPEATEDLY HELD THAT THE CALIFORNIA DEATH PENALTY SCHEME PROVIDES A MEANINGFUL WAY TO DISTINGUISH THE FEW WHO ARE SELECTED FORDEATH FROM THE MANY WHO ARE NOT Appellant contendsthat the 1978 death penalty law violates the Eighth Amendmentbecauseit does not adequately narrow the class ofpersonseligible for the death penalty. (AOB 499-505.) As appellant concedes (AOB 504-505) this Court has repeatedly rejected this claim. (See,e.g., People v. Ramos (2004) 34 Cal.4th 494, 532-533; People v. Griffin (2004) 33 Cal.4th 536, 596; People v. Sapp (2004) 31 Cal.4th 240, 286; People v. Boyette (2002) 29 Cal.4th 381, 439-440; People v. Samayoa (1997) 15 Cal.4th 795, 863; People v. Arias (1996) 13 Cal.4th 92, 187.) Although appellant requests that this Court address the issue in light of the majority, concurring, and dissenting opinions in Tuilaepa v. California (1994) 512 U.S. 967, 114S.Ct. 2630, 129 L.Ed.2d 750 204 (AOB 504), the Supreme Court did not address, in that case, the issue that appellant raises. Moreover, this Court has rejected appellant’s contention even - after considering Justice Blackmun’sdissent in Tuilaepa. (See, e.g., People v. Sanchez (1995) 12 Cal.4th 1, 60-61.) Thus, appellant’s claim mustbe rejected. XVIII. THE CONSTITUTION DOES NOT REQUIRE THAT THE JURY FIND BEYOND A REASONABLE DOUBT THAT THE AGGRAVATING FACTORS OUTWEIGH THE MITIGATING FACTORS Appellant contends that under recent Supreme Court precedent, the jury must find beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors. (AOB 506-511.) This Court has repeatedly rejected this argument. (See, e.g., People v. Panah, supra, 35 Cal.4th at p. 499; People v. Vieira (2005) 35 Cal.4th 264, 300.) The Supreme Court’s recent decision in Blakely v. Washington (2004) 542 U.S. __, 124 S.Ct. 2531, 159 L.Ed.2d 403, has not changed this Court’s analysis on this issue. (See, e.g., People v. Stitely (2005) 35 Cal.4th 514, 573; People v. Morrison, supra, 34 Cal.4th at p. 730.) Thus, appellant’s claim mustbe rejected. XIX. PENAL CODE SECTION 190.3, SUBDIVISION (A), IS NOT BEING APPLIED IN AN ARBITRARY OR CAPRICIOUS MANNER Appellant contends that the “circumstances ofthe crime” factor in Penal Code section 190.3, subdivision (a), is used by prosecutors in such a waythat it leads to arbitrary and capricious decisionmaking that violates the Eighth 205 Amendment’ (AOB 512-519.) This Court hasrepeatedly rejected this claim.. (See,e.g., People v. Smith (2005) 35 Cal.4th 334, 373; People v. Turner (2004) . 34 Cal.4th 406, 438.) In doingso, this Court has noted that the “seemingly inconsistent range of circumstances” that “can be culled from death penalty decisions” shows“that each case is judged onits facts, each defendant on the particulars ofhis offense. Contrary to defendant’s position,a statutory scheme would violate constitutional limits if it did not allow such individualized assessment of the crimes but instead mandated death in specified circumstances.” (People v. Brown (2004) 33 Cal.4th 382, 401; see also People v. Jenkins (2000) 22 Cal.4th 900, 1052-1053.) Therefore, appellant’s claim must be rejected. XX, INTERCASE PROPORTIONALITY REVIEW IS NOT CONSTITUTIONALLY REQUIRED Appellant contends that the lack of intercase proportionality review violates the Eighth Amendment and the Equal Protection Clause of the Fourteenth Amendment. (AOB 520-529.) This Court has repeatedly rejected these contentions and should do so here. (See, e.g., People v. Panah (2005) 35 Cal.4th 395, 500; People v. Smith (2005) 35 Cal.4th 334, 374; People v. Burgener (2003) 29 Cal.4th 833, 885; People v. Anderson (2001) 25 Cal.4th 543, 602.) 39. Appellant does not contend that any of the facts urged by the prosecution in connection with this factor were improper. 206 XXI. CALIFORNIA’S DEATH PENALTY PROCEDURE DOES NOT VIOLATE INTERNATIONAL LAW Appellant contends that California’s death penalty scheme violates international law. (AOB 530-532.) This Court has rejected this contention and has specifically rejected the argument that California’s scheme violates the International Covenant of Civil and Political Rights. (See, e.g., People v. Roldan (2005) 35 Cal.4th 646, 27 Cal.Rptr.3d 360, 439; People v. Ramos (2004) 34 Cal4th 494, 533-534; People v. Brown (2004) 33 Cal.4th 382, 404.) Therefore, appellant’s claim mustbe rejected here, as well. 207 CONCLUSION Based on the foregoing, respondentrespectfully requests that appellant’s © conviction and death sentence be affirmed. Dated: July 25, 2005 Respectfully submitted, BILL LOCKYER Attorney General of the State of California ROBERT R. ANDERSON Chief Assistant Attorney General PAMELA C, HAMANAKA Senior Assistant Attorney General JOHN R. GOREY Deputy Attorney General SL! STEPHANIE A. MIYOSHI Deputy Attorney General Attorneys for Plaintiff and Respondent 208 CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S BRIEFusesa 13 point © Times New Romanfont and contains 62,357 words. Dated: July 25, 2005 Respectfully submitted, BILL LOCKYER Attorney General of the State of California <<— hh ffCotAh Vv a NO STEPHANIE A. MIYOSHI Deputy Attorney General Attorneys for Plaintiff and Respondent DECLARATIONOF SERVICE Case Name: People v. Williams, George Brett Case No. S030553, Capital Case I declare: I am employedin the Office of the Attorney General, which is the office of a memberofthe Bar of this Court at which member's direction this service is made. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondencefor mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business. On__ Jl] 2 7 7005 , L served a copyofthe attached RESPONDENT’S BRIEF in the internal mail collection system at the Office of the Attorney General, 300 South Spring Street, Los Angeles, California 90013, for deposit in the United States Postal Service that same day in the ordinary course of business, in a sealed envelope, postage fully postpaid, addressed as follows: | Daniel N. Abrahamson, Esq. (2 copies) Hon. Steve Cooley, District Attorney 717 Washington Street Los Angeles District Attorney's Office Oakland, CA 94607 200 W. Compton Boulevard, Suite 1520 Compton, CA 90220 John A. Clarke, Clerk FOR DELIVERY TO: Los Angeles Superior Court Kevin McCormick 111 North Hill Street Deputy District Attorney Los Angeles, CA 90012 FOR DELIVERYTO: Michael Millman, Director Hon. Madge Watai, Judge California Appellate Project 101 Second Street, Suite 600 San Francisco, CA 94105-3672 I declare under penalty of perju the foregoingis true and correct and that this declaration was executed on dup 2 7 200 , at Los Angeles, California. Bernard M. Santos Sighatlire SAH‘bs LA1994XS0008