PEOPLE v. ROUNTREE (CHARLES F.)

Respondent’s Brief

Cal.February 22, 2010

Ju the Supreme Court of the State of California THE PEOPLEOF THE STATE OF CAPITALCASECALIFORNIA, Mase No. SO48543 Plaintiff snd Respondent, ¥. CHARLES FRANKLIN ROUNTREE, Defendant and Appellant. “Honorable:Lee P.PelicS€, judge RESPONDENTCOS BRIEF EpMumnG. BerraJe Attorney Genergl ofCalifornia Dawe R. OMperre Chie? Assistanl Attorney General MICHAEL PF PARwELL eyputsa Atteaney‘General Slate Bar Mo. 19S ies £330 Mariposa Mah, Room S095 Fresno, MA OR72% Telephone: (3505 477.1873 Pan: {$80} 445.5706 brand: Leahe,Wretmorelanda Attorneysfar Sessondent ind cagov TABLE OF CONTENTS Page Statement Of the Case ........ccccssccssssesseesescesseccseecseeeesseeeseeceseeserseesesseessaeens 1 Statement Of Facts...ce escecceseeceseeseeeseneesseeesseeecseeeesseeeseecsseeeseeesesesensteess 2 A. The search for Diana Contreras..........cccccscessseesseenes 2 B. Investigation of murder SCENE ..........cecccseseeceesseeessnees 4 C. Appellant’s arrest in Kansas and subsequent CONFESSIONS oo... eecceeseeeesseeseeeseeceaeesseeceaeeeaeceatesteeeneeenees 5 D. Circumstantial evidence of appellant’s guilt............. 10 l. ATM Transactions..........ceccceesseeesseeesteestseens 10 2. Contents of Stroder’s Volkswagen Golf........ 10 3. Crime Scene ooo... eeeeecceeeseneeeeeeseeeesensateesenneees 1] 4. AULODPSY ...ccccecceescseccerenseneeeeeceseesaeeeeeeeesaeeeerees 12 Friends & family .0... ceceeee eeseeesneceneeeneeeerenseeeates 15 F, Dr. Michael Byrom.........cceecceeesceeceeeeesceeeeeeeeeseeeenseess 19 StipUlatiOns....... cece ceeeseceeesteeceesteeeeeetieeeeenneeeesseteeeans 21 ALQUMEMNL......ceecccceccceeseesnneeecessenueeerenseeeeseesaececesenueeeceseseaaseesereessaaaeeesensaaees 23 I. The Trial Court Did Not Prejudicially Err In Denying Appellant’s Motions To Change Venue.............eeeeeeeeeeee 23 A. Factual background .0..... cee eeeseceessseessesseseeessreesneeens 23 1. Pretrial Motion and Hearing................eee23 2. Renewed Motions During/After Voir DIC oo. eeccccccsecceseeeceeceeeeseneseceeeaeeseeeneesessaeees 25 B. ANALYSIS 0... ceeccecceseccsseececeneeecesnseeeeeseeeseeesesenstseeeeneeeess 27 l. Nature and Gravity of the Offense. ................ 28 2. The Size of the Community. .....cee30 3. TheStatus of the Defendant in the Community ands... eeeeeeseeceeeeeeeneeeeeeetenee 31 4. The Popularity or Prominenceof the VACCIIN.occ eeceeesceceeeeeeseeeeseeeeseneeteaeceneseteeatenaes 31 II. U1. TABLE OF CONTENTS (continued) Page 5. The Nature and Extent of the News COVETABE......ecccccessescsesssceestseeessseeeessseeeesseeeees 32 C. Juror voir dire and lack of prejudice...eee 35 The Trial Court Properly Denied Appellant’s Challenges For Cause To Fourteen Prospective Jurors....... 4] A. Relevant proceedings below .........cceceeseesteetcecereeeees 42 l. Juror 049614 ooeeceeecseceteesteeeseesteeeseesenees 42 2. Juror 048108 oo... ececeseccseeestecesseeesseeesseeeeses 44 3. Juror 047328 oeeeccesceseeseceeeceseeenseetseeseeeenes 44 4. Juror 048382 ooo. cccccccsceseeseeseessecseseseesseeseens 45 5. Alternate Juror 048498 0.0... ecccesseeeeteeeeees 48 6. Prospective Juror Judith Burns... 49 7. Prospective Juror Mary Whitten................. 52 8. Prospective Juror Edith Sanford... 56 9. Prospective Juror Cleete Baron...............00 58 10. Prospective Juror Leta Russell............ee 59 ll. Prospective Juror FilemonVigil.............0. 60 12. Prospective Juror Gene Arbegast................0 61 13. - Prospective Juror Gary McNatt ........ee 61 14. Prospective Juror Jeffrey Cox...eens 62 B. AMAlYSIS.......cccccesccsescseeeeseceseceeecseceaeceseceseeeeeeeeneenneents 63 The Trial Court’s Dismissal Of Prospective Juror James Harmer Did Not Violate Appellant’s Constitutional Rights Requiring Reversal Of The Death Judgment, 20.0.0... ccccccccsscesseccssseseeeesseeeesaeeeetseeeseeeesaes 67 A. Relevant proceedings below ...........ccccescceestseeeteeetees 68 B. Applicable law and analysis .0....... ce eeceeeeeeeeeeteeneees 70 ll IV. VI. VIL. VIII. TABLE OF CONTENTS (continued) Page The Trial Court Properly Admitted Redacted Versions Of Appellant’s Confessions And Denied His Motions For Severance, Separate Juries, And Admission Of The Full Confessions At Penalty Phase. Any Error Was Harmless Beyond A Reasonable Doubt. .............. 74 A. Relevant record .0.......eecceseccceseceeseeeeseeceeeenenereneeeeness 75 B. Legal framework .........c.ceccceeesseceenceeceeneeeeeseeereeseeeees 78 C. AMALYSIS.......cccscccssssscccesseeeseseeecsseeceseeeecesaeceseneeeeeeaees 79 The Trial Court Did Not Commit Reversible Error By Failing To Instruct The Jury That An Accidental Act Resulting In Death During The Course Of A Felony Fails To Meet The Requirements Of The Felony- MurderSpecial Circumstances. ..........csccceseceeseeceseeeeneeeeeeees 86 A. Relevant record o.....c eee eeeeeeeeeeeeseeeseeeenseceseeeeseeeeneees 86 B. Forfeiture... eeecceeccceeececeececeseeceseecvsnersneeenseeeesseegees 89 C. Thetrial court’s jury instructions did not lessen the prosecution’s burden ofproofas to the Special CIFCUMStANCES. ....... eee ceeeeeeeneeeeeeteeceneeeetanens 90 California’s Felony-Murder Special Circumstances Do Not Violate The Federal Constitutional Requirement That The Class Of Offenders Eligible For The Death Penalty Be Narrow.........cccscccsssecseeeesseeeeeceeeceeaeeeeeettaeesneeees 93 Appellant’s Sentence Imposed For Felony Murder Simpliciter Is Not Disproportionate Under The Eighth And Fourteenth Amendments And Does Not Violate International Law .00.......c ccc eeceeecccessesesssececcesesevsssscessceseeeeaeeees 95 A. ProportiOnality ........ecceceeeseceseseeeceteeeesseeeeeeseeeseeneeeees 95 B. International law ..........ccccccceeeeecccccccecccecesececccseeeceeeeees 96 The Trial Court Properly Admitted Autopsy And Crime Scene Photographs. Reversal Of Neither Phase Ts Warranted. .0........cccceeccceseceeeaceceeeesneececeenseersnesesaeeeeaeeaeengs 97 A. Relevant record .........ccccccccceeecececceccececcsecececcceveeceeeesece 97 lil IX. XI. XIl. XIII. XIV. XV. XVI. XVII. TABLE OF CONTENTS (continued) Page B. AMALYSIS......cesceesceseceseeseeeeesececeeaeesceeaesseeaeenseesaeeseeeates 98 Substantial Evidence Supported Appellant’s Kidnapping Conviction And The True Finding On The Kidnapping Special Circumstance...........ccceseseseeseseeeeseeeens 99 A. Relevant record ....... ec cesesseesseeeseceneeeeeseecseesneeeenees 100 B. Legal principles..........ccecssecsssesesseeesseeseeesseesessreeeees 101 The Trial Court Did Not Instruct The Jury On Voluntary Manslaughter Because The Evidence Did Not Support That Instruction ...........ccccesccesseceeesseeeeeseseeees 104 The Trial Court Did Not Err In Denying Appellant’s Request To Question The Victim’s Family Regarding PUNISHMENL.....eee ecceeeseeeseceseeeseceseeseeeseeeeesseesseeeseeesseeseees 108 The Trial Court Properly Admitted Victim-Impact EVICONCE...... eee eececcseceseceeceeeeeeeesseceseceeeeesesseeesecsseseseessseeaes 109 A. Relevant record .......eeeeecesceeseeeneecseeereeneceeeeeeesanees 109 B. Legal principles..........ccccccsccccsseceseessseeseesseeeesseeeeas 111 The Prosecutor’s Penalty Phase Argument Was Not Improper. Any Error Was Harmless............:ccccceesseeeneees 114 A. Relevant record .......cceeceeseecneecseeeseeeeeeeteeetseseaneeees 115 B. ANAlYSIS......:ccscceessecsssecesseesenseesseeessecsseseeseeeessseeesaees 118 The Trial Court Did Not Improperly Refuse Appellant’s Requested Instruction That One Mitigating Factor May Be Sufficient To Support A Decision Against Death... ..ccccccssccccesseccessscceesseceeessesesseeeesenseesensns 122 The Death Verdict Is Not Disproportionate In Appellant’s Case 0.0... ececceescccessecescecsseecsneeseneesseeeesnneeennees 124 Appellant’s Claim Of Ineffective Assistance Of Counsel At Both Phases Is Properly Raised In Habeas COLPUS 000... eeeceeeecceessceeeseeceeseeecaecesseeesseeesseeseaeesseeenseeeessaeeeeaees 127 No Count Or Special Circumstance Has Been Reduced Or Vacated; Thus, Appellant’s Claim Is Premature.......... 127 iV TABLE OF CONTENTS (continued) Page XVIII. There Is No Constitutional Requirement ForInter- Case Proportionality Review ..........ccscceescceseeceseeeeeeeeneeeees 128 XIX. California’s Death Penalty Scheme, AsInterpreted By This Court And Applied At Appellant’s Trial, Does Not Violate The United States Constitution. The Trial Court Properly Denied Appellant’s Motion To Suppress. Various Challenges To Murder And Guilt- Phase Instructions Are Without Merit. 0.0.0... eeeeeeeeeeeeees 128 A. Penal code section 190.2 is not impermissibly Dra 0... eeeceetecetcceeseceeeacerseeesaeecnetecsaeeseseeseseseeeeees 129 B. Application of section 190.3(a) did not violate appellant’s constitutional rights. 0.0.0... eeeeeseeeeees 129 Cc. The death penalty statute and accompanying jury instructions do notfail to set forth the appropriate burden of proof. 0.0.0... ce seeeeeseeeeeeeteeeee 130 1. 2. 3. Constitutionality of Death Penalty.............. 130 Burden of Proof ..........ccccceescesesceeeteeeneeeeneees 131 Unanimity and Unadjudicated Criminal ACHIVILY oe eeccccceesseceenteeeeseeeeeesneeeeeneecesnaeerenea 132 The Standard for the Penalty Determination was not Impermissibly Vague and Ambiguous............:cceseeeeeeeeeees 133 The Instructions Properly Instructed the Jury to Determine Whether Death was Warranted..........cccssccsssseeceenecessneeeseneeeesenes 133 CALJIC No. 8.88 Properly Instructed the Jury on How to Weigh Aggravating and Mitigating Factors ..........ceeesesseceeeeeeeeeeees 134 TABLE OF CONTENTS (continued) Page 7, The Instructions Did Not Violate the Sixth, Eighth, and Fourteenth Amendmentsby Failing to Inform the Jury Regarding the Standard of Proof and Lack of Need for Unanimity as to Mitigating Circumstances ...........c cesses 134 8. There is no Requirementthat the Trial Court Instruct the Penalty Jury on the Presumption of Life... eeecesseeeeseeetees 135 Failing to require the jury to make written findings does not violate appellant’s right to meaningful appellate review.............cesceseeeeteeeeteees 135 The instructions on mitigating and aggravating factors did not violate appellant’s constitutional TIQAtS oo. eeceececeeeeeeeceeeeseeeeceeesaeceeceescseeesseeeeeeeeeaeenss 136 California’s death penalty scheme doesnot violate equal protection by failing to allow depositions of prosecution WiItneSSeS..........:ccce 137 Thetrial court properly denied appellant’s motion to suppress his confessions under Mirandav. Arizona, supra, 384 U.S. 436..........0.... 137 The jury was properly instructed onfirst-degree MUIET.000... cece eeeeceeeeneeeneeeeeeeeeeseeseeseneteaeceaueennerenees 137 Failure to instruct jurors that they were required to agree unanimously on theoryoffirst-degree murder wasnot unconstitutional.......0....ceeeeeeees 138 The jury was properly instructed that it could not return a verdict of second-degree murder unless it unanimously acquitted appellant of first-degree MUIeT. 0.0... cece eeceesteeeeeeeteeeeesteeeeeeees 138 A series of standard guilt-phase instructions did not undermine the requirement of proof beyond a reasonable doubtin violation of appellant’s Constitutional rights... cecsecescesseeeseeeeseeenneees 139 vi TABLE OF CONTENTS (continued) Page XX. Appellant’s death sentence does not violate International laW............ eee ceeeeecccessecceceeececessuucsessuseseseususees 139 XXI. No cumulative error occurred .......0...cccecccccceeesseeeeceecereeueeees 140 CONCLUSION o.oo eecccccccccccsssseseecceccccecccsecececcccecececececccecsscuvesseesesceseunennss 14] vil TABLE OF AUTHORITIES Page CASES Apprendi v. NewJersey (2000) 530 U.S. 466... eceececesecseeeereensceseesseceacceneceeeseeseaecsaeesateneeensessnens 131 Blakely v. Washington (2004) 542 U.S. 961 cecccscssceeeseeteceseeecesesseceenaesseesesaeseeeeasnsecaeeersenerate 131 Boyde v. California (1990) 494 U.S. 370 Loe eecceceecceececeeeeeeeeeeeecaeeeeceeeenseceaecnaceaeeeaeeeaeseneeeaeeeas 92 Bruton v. United States (1968) 391 U.S. 123 eeecccecceeeceneeseeceseesersnescecscereceaecaeeneessaseneesseees 79, 81 Caldwell v. Mississippi (1985) 472 U.S. 320...ce eeccescceceseceeseeeeeeeseeeaeeeeeseeeeeesaeenseseeeeaeceeeaeeeeees 119 Chapmanv. California (1967) 386 U.S. 18.eececccesecseeeteeeseeceeeseeseeceseseaeeseeeeeeaeeenersates 85, 93, 122 Cunningham v. California (2007) 549 U.S. 270... ceeceesceecesscesecsteceseceaeesnesscecaeeeeeeeesecneeesaesseeeneeserees 131 Eddings v. Oklahoma (1982) 455 U.S. 104.ecccecesececceeecneesaeeseeeeseceaeeesesenecssesaeesaneeseeeaeeesees 119 Hicks v. Oklahoma (1980) 447 U.S. 343eee ccceeessceneeseeeseesseeeeseeesaesseeeseceaceseessneeaeersaeestonses 67 Hovey v. Superior Court ofAlameda County (1980) 28 Cal.3d 1 oiecccccccssecsseeseeeneceeeeeceeesseensesnsesesesaeeeeeeeeesreeseesss 26 Jackson v. Virginia (1979) 443 U.S. 307 o.oo ecceceeseescceneeeneeesceesecseeeesecaecesesseesseeeaeseneceaeeenecnens 101 Lockett v. Ohio (1978) 438 U.S. S86.ccceeecneceeeseeenecsteceeeessecsneceseeneeesesaeesseseaeeaeseaeeees 84 Martinez v. Superior Court (1981) 29 Cal.3d 574 ooo eeccccccecsssecessneeesseeeessseeeessnesenstseeesaeeseeeeesenas passim Vill Miranda v. Arizona (1966) 384 U.S. 436... cccccccssecsssecesseeeseseeeseseeeesseeessaeeceesneeeeaneesenateres 6, 137 Odle v. Superior Court (1982) 32 Cal.3d 932ce eesescsseeseesecseteceeserarceeecesseeseesesesessesserseseaseneeasense 28 Payne v. Tennessee, supra, 501 U.S. at p. 830, fi. 2 eeeeeccesseeseceeeeeneeererseeeneceneetseeeaeeenespassim People v. Anderson (1987) 43 Cal.3d 1104 oooceeeeseccseceeneeeececeeesssessneerseeensesensees 85, 91, 95 People v. Anderson (2001) 25 Cal4th 543 occccccsecsesseceseeeesesseeeeeeeeeeesaesaeeersaeeneearens 94, 133 People v. Andrews (1989) 49 Cal.3d 200 0... ce eececeesececeseeceecesecseeceecseessesseecnaeeseesseseaeeeneeseeeas 90 People v. Aranda (1965) 63 Cal.2d 518 occceeeeseesesseeesseceereseeseerseesesseeeenees 79, 80, 81, 82 People v. Arias (1996) 13 Cal 4th 92 occceccccsccseceeeeessecserrceeesecesessessesseeseessesseeerseeess 133 People v. Avila (2006) 38 Cal.4th 491 oo.ceeesccsesseesseceeeeteceeeteeseseneerseees 67, 78, 79, 136 People v. Balderas (1985) 41 Cal.3d 144 ooececseceeceeecneeteeeaeceaceaeeseesseeneessneeas 30, 31, 34 People v. Barton (1995) 12 Cal4th 186 oo.cecccseeceneeceeecceeeeeseeseseesneeeeseeenetesseeeseneeeaeees 105 People v. Bassett (1968) 69 Cal.2d 122 oeeceecccesesceesecseseceneecseeserseeneesceeesseesseseseceaeeneeatens 101 People v. Beames (2007) 40 Cal4th 907 oo... cccccsccecesreesesseeseceeceeeeeeeaeeeenevereeneseeeateaes 97, 129 People v. Benavides (2005) 35 Cal4th 69 oo.ccccecccccsceeesectecsereecneesaeesesseeaecaeeaseaesatenersneees 112 People v. Bennett (2009) 45 Cal.4th 577 oo. eececceceeceescceseceeeseeesecesecesececeseceserseeessesseeeanesates 122 People v. Berryman (1993) 6 Cal4th occccc eccsecessecsneceseeeeeeeseeessnersaeecsaeesneesseeessaeesseeesesenaeenes 132 ix People v. Bittaker (1989) 48 Cal.3d 1046 ooosssceeseeeeseececeecnaecseeeeseeetseeeeeessneeessaeerags 120 People v. Blair (2005) 36 Cal.4th 686 ...... cc eccccececcesceeseeeeseeesacersseeesaeeenseeeseesseesonseeens 67, 131 People v. Box (2000) 23 Cal.4th 1153oeseeecceese ter ceeeteeee rae sseenseseseeneenseseengees 94 People v. Boyde (1988) 46 Cal.3d 212cececccceseceseseseeseeenecseecesecnseesaeenecesecnaeeeaeeseeeeeaes 78 People v. Boyette (2002) 29 Cal.4th 381ceeecceccessceseceseceecssecseceeeeseerseeeeseeacssesnsaeeatenaes 67 People v. Bramit (2009) 46 Cal.4th 1220 oooeccceeeeceesceeereeaeesseceeeseeeseeeaessaeeeaeseeeeseees 131 People v. Breverman (1998) 19 Cal4th 142 occcccccscnessseseeseeseceeceeeetecseceeeeaseneseeeseees 105, 107 People v. Brown (1988) 46 Cal.3d 432 oicccceececcseceeeesenecesnessaeersaecesaeesnaeeeeeeseeneestaeeoaeens 121 People v. Brown (2004) 33 Cal.4th 382 oo... ccccccccccsscccssseccsssceeesseeeessseesssseeeesnseeesseeeessaes passim People v. Carey (2007) 41 Cal.4th 109 ooeccecsesscceneeenerseecneesneeeeeseneeeaesseeseneseaeeesenes 138 People v. Carpenter (1997) 15 Cal.4th 312 oieeccceccessceceseeseneecseeseeceeeeeseeeseeerseetenaeessaeens 132 People v. Chatman (2006) 38 Cal.4th 344 oo.cccecsccsecesceseeeetsceseeseesecseesseesesseeesesareneeeatens 133 People v. Clair (1992) 2 Cal4th 629 oocecssccsseeseceecsceeseceseesseeeeseteesssesesesassesesseessaones 99 People v. Coffman and Marlow (2004) 34 Cal.4th Lecceceeceeesecseeeeeeeeeeeeneseeeeetseesatenseenaeeseeenas 34, 78, 79 People v. Coleman (1989) 48 Cal.3d 112 oe ieecceseseesecesessecseesseseeneeeeseseeecececsaeeeeeeeeeeeees 30 People v. Cook (2006) 39 Cal.4th 566.0... eccccceccececeeecceseeseeeseeceseseneseaeesserseceaeesseeeneesnees 136 People v. Cook (2007) 40 Cal.4th 1334 occeccsccsecneeeeceeseeecsesecseceeeeecesessesseseeseeseeeaes 128 People v. Cornwell (2005) 37 Cal.4th 50 vo... cecccscescsseeseeeeceeessseseseeseveseserseessseeaeeaeeneeeees 94, 129 People v. Cox (2003) 30 Cal.4th 916 o.oo ceccccccesecsccssereeceteceseesserseeessceseenseseesaeeneesnaesseees 127 People v. Crittenden (1994) 9 Cal.4th 83 occ cceecsccesseeeseecseeeneeesacesseeceseeesseeeeessaeesseeseseeesneeesaes 94 People v. Cummings (1993) 4 Cal.4th 1233 voice ccccsccscsscesecsessecsscescesesseeseesesneeeseeeseseressrenreaees 33 People v. Dennis (1998) 17 Cal.4th 468 oo.eececcsceeeseessaeeeeeeeseeesseeesneeeneeenas 28, 29, 32, 134 People v. Diaz (1992) 3 Cal.4th 495 oooeescnenerseesceeesesseeseeeceeesesceessetaceeseessesseteeeges 132 People v. Dillon (1983). eecescecccsscsecssceseeseceecescescssecsececeecesecsevsecaeeseceesesseaecsecseseesenseresaesatente 124 People v. Douglas (1991) 234 Cal.App.3d 273ce ccccescscsessceseetseceasceeesneeserseeseneeaeenas 80, 81, 82 People v. Duarte (2000) 24 Cal.4th 603 0... ecceccsceescesceescesseceeecaeceeecscesseceeesnceseesseesseseasonse 80 People v. Earp (1999) 20 Cal4th 826 oo. .eeeecccceessecesceeseceesceceseeeeeeesaeeeseecsseeesaeeseesnaeeesaees 95 People v. Edelbacher (1989) 47 Cal.3d 983 woecccsesscneceseeserseeteceeeesetatenevseeersesneeeresatenesaeens 36, 39 People v. Edwards (1991) 54 Cal.3d 787 oo. eeseccesseesecssersneceeecncesserseeeeceseseaeeeesaeeneees 111,112 People v. Elliot (2005) 37 Cal.4th 453 ooo.eccceseccsccsseeeceeteesseeeeeseceseeeseesaeeaessneseeeeneeeneees 124 People v. Ervin (2000) 22 Cal.4th 48 oo... ececcecececseeeceeeeeneeeeneesseeenscesseeesseeenetsneessneseeeennees 81 People v. Fauber (1992) 2 Cal.4th 792 ooo. eccecccccsseecseeeseecesceesseeesaeceaeessneesaeeetaeesaeessneseteeeenees 29 xi People v. Fierro (1991) 1 Cal.4th 173 voceceeesseeeceneceseeeeseecesaeenieeesaeescaseeeeeeaeees 112, 113 People v. Friend (2009) 47 Cal4th bocce cececcscesceeeeeceececsecsesseseenecsessesaeeeseataesareaeseseaeeees 139 People v. Frierson (1979) 25 Cal.3d 142 ooccecescccscsscessceseesseceecesecseeceaeeerecseesaeseaeeseeseaeesseeas 130 People v. Frye (1998) 18 Cal.4th 894 ooccccccsecssecesessseescecseeseceseceaceneeseeeeseetseeeseenaes 94 People v. Geier (2007) 41 Cal.4th 555 occcccccscnccesesseceeceseceeeeeesesseceseceeseeseaeeaeseeeenesats 138 People v. Ghent (1987) 43 Cal.3d 739 occeceecesecsseceneseeeseeeeeesseesecsseesseeseassedenacesesesasenas 70 People v. Gonzalez (1990) 51 Cal.3d 1179 eeececcsecssccsesceecesersseeeseeseesseeeseenaeesaesenseneesseees 122 People v. Gurule (2002) 28 Cal.4th 557 ooo. cceccecceeceeesecececeeeeeeeseeeeeeeeecseeeenees 94, 99, 123, 124 People v. Hamilton (1989) 48 Cal.3d 1142icccecsecneseeeneeteesseeeresseceesesevacsaeeneeseeeaeeeeens 29 People v. Hamilton (2009) 45 Cal.4th 863 oo. ceccceccsccseessecesecseeesseesecesesseesneeaeesaeseaeeeseeeneess 112 People v. Hardy (1992) 2 Cal4th 86 oo... ccc ccccecseesseceseesseesseeneeeeseceeeseeeeseeeaeseneseesneesereseeeaes 78 People v. Harris (1981) 28 Cal.3d 935 occccccscesceneesseeceeesseesscesseesseceseceeeeesaeceaeesseesaeesnes 28 People v. Harris (2005) 37 Cal.4th 310 .cecceeccecseeseesseeesecsseeseeeseeeeeseaeessesereesneeatees 112, 121 People v. Harrison (2005) 35 Cal.4th 208occeesesessecneessessseescssesseeseeseseeesecssereeeeesneeneeens 81 People v. Hart (1999) 20 Cal.4th 546 ooecececssecssecssecseeeeseesseseeeessaesseesseeeneesaeees 28, 99 People v. Hawthorne (2009) 46 Cal.4th 67 ooo. ecsceseecsecssesseessceaeesecsecnecsseseessesecseesaeeneesseaees 97 Xil People v. Hayes (1999) 21 Cal4th eeecccccscseeeseeesecesceeerseeesecesessaceaerseeeaesesenenenaes 29, 30 People v. Hernandez (1988) 47 Cal.3d 315 v.eeccccccscessecseeseceneeeseesecssessesesesseeenetseesseseeesateseeenss 29 People v. Hillhouse, Supra, 27 CalAthi. ceccccecccscsecsseceseceesereeeeceseecsaeeeseeeseeesnecensesenaeesnaeens 136, 138 People v. Hinton (2006) 37 Cal4th 839 ooo cecssceessestecssecenecesereeeeaeeseeeeseaseseerssessaseaseaaes 122 People v. Holt (1997) 15 Cal4th 619 oceeccceceesereecseeseceesesneseeenersees 102, 103, 104, 132 People v. Horning (2004) 34 Cal4th 871 ooo ceccseeesreeeeceseeetecseeeseseeesesseseerseeeaeengsLeseeeene 63, 64 People v. Howard (2008) 42 Cal.4th 1000 20...ccceccsceeeessecseeescessecssersessaesseeennesseetaeee 125, 139 People v. Hoyos (2007) 41 Cal.4th 872 ooo. ccccecccccescceseceeesseeeeeesecssersneseeeeaeoeneees 97, 130, 132 People v. Hudson (2006) 38 Cal4th 1002 oo... eceeseerecsecerseeseessesesessscsseeseesseesasenserenees 89, 90 People v. Huggins (2006) 38 Cal.4th 175 occecesescecseectecsseeeseeesessrerseesecssescsesesasesscnseesseesaeess 91 People v. Jackson (1980) 28 Cal.3d 264 ooo. ceccecssessecenecerecsseeeeseateteeeesssessesssasenaseeeoneten 107 People v. Jackson (1996) 13 Cal4th 1164occcccsecseecssecescereesseceeeeseesaseenesseseneeeaes 99, 122 People v. Jackson (2009) 45 Cal.4th 662 oo... cccccccsscecssneeessneeensseesseessseeeensaeeseneeeeeenes passim People v. Jenkins (2000) 22 Cal 4th 900 oo... ceccscscesseersesecsestecseseecescescssesaecaeeseensseaesetens 28, 32 People v. Jennings (1991) 53 Cal.3d 334oecescccccesseceeecneeeneeseeeeeeeeceseeesenseseateraeeeaseseees 29, 34 People v. Johnson (1980) 26 Cal.3d 557 oo. ceceececccesceesceeecseessecseeesecnsecasesesereseeeeeeseaseneeenates 101 xiil People v. Jones (1998) 17 Cal.4th 279 ooo. ceccccccscesseeseeseeeseceeensecesseseeseeesseneeenaeens 123, 124 People v. Kaurish (1990) 52 Cal.3d 648 occeecesecesecetecesesseeseeeeeceseceeesaeeeeesaeeeeeeeeeseenaes 99 People v. Keenan (1988) 46 Cal.3d 478 ooceescccsereesseeeeesseesecaeseeseceeesseeaersesereenerteeaeens 79 People v. Kennedy (2005) 36 Cal. 4th 595 ooocccccceecescneesseeeeseceeceeeeseeaeeseceeeeseaeeeeeseesesees 129 People v. Kipp (2001) 26 Cal.4th 1100oeeseseecneeeecseesesecneesaseeeseeeaesseeereeneeeeenes 132 People v. Lancaster (2007) 41 Cal.4th 50oceeccaccsneeesseeeessecseeseeeeseeseerseeseeeeeeesaeeseeesseees 109 People v. Lenart (2004) 32 Cal-4th 1107 ooeccecesseesesseceseeeseessecesecnseeseesseeseseseesseseseees 131 People v. Leonard (2007) 40 Cal.4th 1370oeecceccccsecesecesecesececesseeseeeeeeseseseeseeeeseessas passim People v. Lewis & Oliver (2006) 39 Cal.4th 970 oo. ccceecccscesccsneeeseeeseseeeecesseeeseseceesecesessseesseeeseesseess 130 People v. Lewis (2001) 25 Cal.4th 610 ooo.cccecseesecseeeseeeneeseceseeeseeseesseessaeeseseseeeseees 105 People v. Lewis (2008) 43 Cal.4th 415oocsesseesectereecneeseeeeeneeerseeseeseas 40, 105, 106 People v. Lewis (2009) 46 Cal.4th 1255oeccecceeesesseenecesesseceeesceeeesesserseceseeseeeeeneeas 132 People v. Lindberg (2008) 45 Cal4th Locicececeeeeseeseeessecseeeseeeseesecaeeeeereaesaeeseneeeaes 93, 128 People v. Logan (1917) 175 Cal. 45 ecceceeceeesseeseceeceecesesseceeceesseecaeeseceecesessesaeeeressesees 106 People v. Loyd (2002) 27 Cal.4th 997 ooo cccccecccsesseeeseseeeeeeeeseseeeceeesaeeeseesseseseeseeenseseatenss 36 People v. Lucas (1995) 12 Cal.4th 415ecceeccssecsseceaeeeseceeeseeeseeseeseaeeeaeeereeeaeenseesaes 99 XIV People v. Manriquez (2005) 37 Cal.4th 547 occ ecccceseecceccneeceeeseecteeserseeseeseeeeseeseseesesseeaeeeseeaeaeas 137 People v. Marshall (1990) 50 Cal. 3d 907 ucccceesssscesseceeeesceeeeecseeeaeeeseceaeeneeeneserersneceesateeseente 94 People v. Martinez (2009) 47 Cal.4th 399 ooo eccscsesescneceessteeneeeeseecsseeseseceseeceseseseesaeens 71, 72 People v. Massie (1967) 66 Cal.2d 899 oooceccecseeeceseetecnseseeeseseesesseeeseeeeeneaseuseeteseseesaees 78 People v. Maury (2003) 30 Cal.4th 342 oo .cccccccsesessseesecesecsseeeseeseeseeecsecsaseeesseceeeeneseneees 135 People v. Medina (1995) 11 Cal.4th 694 oooceeesceeeeecnecnecseeeeeeseeesetsseseseeseecessseseeaeeees 132 People v. Mendoza (2000) 24 Cal4th 130 oo... eecccsecsceeseeeeeeseeeeaeeeeesseesseceaeenaeeneesaeeseeeeseaeeens 79 People v. Mendoza (2007) 42 Cal4th 686 occ. ceccesccscecsecssecseeecseesaceeeseeeessenseeaceesecssereseatennes 97 People v. Mitcham (1992) 1 Cal.4th 1027 oooesccssecseceneceneesseseeessarssesssessesssscsesesseeneseeeos 111 People v. Moon (2005) 37 Cal4th Looeee ceceecceseesceceeceteeesesenecesersaeeeeceaecesseneeesaseeesaeespassim People v. Mungia (2008) 44 Cal4th 1101oecneeeeceeeeleeecneeseesseseeeseteeeseeseseesseneesseases 96 People v. Murtishaw (1989) 48 Cal.3d LOO]cece ecceceeeseceeseceecsseceaeeeaeseeesseceeseaeseseeeneteetereaes 30 People v. Musselwhite (1998) 17 Cal4th 1216 veeccesecseceeesersecereseessecsenersecseeeeceeeeasseeeneeseens 94 People v. Nakahara (2003) 30 Cal.4th 705 ......cceccscccccscesseceseeseceeeesceseeeeceeseeseaeseseneesesnesseenersees 138 People v. Ochoa (1998) 19 Cal.4th 353 occcccescesceessceeecenecseeeeeceneessecsseseseaeeeeeseeeeneeseaeates 94 People v. Panah (2005) 35 Cal.4th 395 ooocecceesceeseetseeecsenessneesssecseeseeessseeeseeesateeas 35,112 XV People v. Perry (2006) 38 Cal.4th 302 oo... eceeccescceseceeeeeeceserseeeeeeeeseneeseees 96, 97, 124, 132 People v. Phillips (2000) 22 Cal.4th 226 oo... eecccccsccessceseeeeecseeceseeesecesecseceseceseseatesseenaeesseeas 135 People v. Pinholster (1992) 1 Cal.4th 865 oooeeecescsecneceeceeceecesesaesaecnesssenecnaeraesenesnenags 111 People v. Pollock (2004) 32 Cal4th 1153 occcccccscssecsscseeeseeseesecscessceseeeeseeseeeeeeeeens 112, 121 People v. Prieto (2003) 30 Cal 4th 226 oooeeccceeecsereecnsceseesesecesessnaeteesaeoneeens 131, 133 People v. Prince (2007) 40 Cal.4th 1179 occcccccccesssscsesssecsesseeceseecesseeessseeeesnseeeeenses passim People v. Proctor (1992) 4 Cal.4th 499 oooccccccssecsecetecteeeeesceseesceececseseeeeeeeaesseeeaeens 29, 34 People v. Raley (1992) 2 Cal.4th 870 oo... ecccccccccesecsseesseceeeeeeeeeeeeseesecseaeeeeeeseesaeeneseeeeeneeatens 118 People v. Ramirez (2006) 39 Cal.4th 398 ooeeccescnecnereeeeescersesseetsesseacsaseees 32, 33, 34 People v. Reed (1952) 38 Cal.2d 423 occececssensceteessctecesceesserseceeeeecescesecseeseeeeeeeseeeeneees 90 People v. Robinson (2005) 37 Cal4th 592 oooceccseecsseeeceseeneeeeseseesessevarenersteneesaeeaeesaes 32, 112 People v. Rogers . (2009) 46 Cal4th 1136 occccccccscsccessenecsseeecseceeceeceeeeseesetaeeeenseens 134, 136 People v. Roldan (2005) 35 Cal4th 646 oooeeceseceeceneessecesecesereesseesaeensseeenseeenaenes 64, 98 People v. Rowland (1992) 4 Cal.4th 238 oooccsccscssecssceeeesecseceseesecsessecsecseeseceeeesesseeeseeaeenees 101 People v. Sanders (1990) 51 Cal.3d 471 oeecccceneeceeseetecseesseseseececseseseeceeeeeecseeeserseenees 137 People v. Sanders (1995) 11 Cal.4th 475 ooo eccccccseeesecsseeseeeesesseeseeeeseseeeseesseenaeseaeeeseeeaeees 118 XV1 People v. Scheid (1997) 16 Cal 4th deccccscsecnseseceeeneceesereseceseeeesessesesessesseesesseeerensesees 98 People v. Sedeno (1974) 10 Cal.3d 703, overruled on other grounds... eeceeeeeeeeeeeeeee 105 People v. Sims (1993) 5 Cal.4th 405 ooo.ee cccccccseeeseeseeeeseeesecesereeeeeseeseresseesseseaeeeeeseeees 133 People v. Smith (2003) 30 Cal.4th 581 ccccscseseeeeerecseceesesessesseeaeseeeasseeenes 63, 65, 70, 109 People v. Stanley (1995) 10 Cal4th 764 oo.cccccccescssccseceecesceeeeereceresesersnecesesaessessresseseees 98 People v. Stanley (2006) 39 Cal.4th 913 oo. eccesceeseesseceseeesecseeceeesaeesseesneseeeeaesnesenneras 93, 132 People v. Staten (2000) 24 Cal.4th 434 oo ccccccccescescesecesceeseeeseeeneeeeseeeseeeaesseeaeeeeen 35, 140 People v. Stewart (2004) 33 Cal.4th 425 ooo cccccccsseceescesecseeceeecnecsseesseseasenscsssessesseesseeeneeens 71 People v. Sully (1991) 53 Cal.3d 1195 veeeceeseceseeeeneeesseeeseessseessneeesesesaeerseesseeensaeeenaes 33 People v. Tafoya (2007) 42 Cal4th 147 oo. eeccecsesseeeeseeeceeceeseseceecnetseseeeeseeseseessesaeeaseaes 126 People v. Taylor (2001) 26 Cal4th 1155 cccceeccecsecsseceseeeeessecsneceeeeeeeseesseeneesaeeaes 84,111 People v. Tealer (1975) 48 Cal.App.3d 598 oo. ccscssesceesecteetersreneeereeseesceserssesesseseesasseeeneeas 80 People v. Vieira (2005) 35 Cal.4th 264 oo.eecsecsecesneeceteeesneeseeeseeeseeeeas 27, 28, 30, 118 People v. Waidla (2000) 22 Cal.4th 690 0... ccc cecceseessccessecssneesseeseecesescnaessseeesaseeaeessaeeraes 105 People v. Wallace (2008) 44 Cal.4th 1032 oo... cc ceeccesscccseseeesseeeseeseeeaeceaeseeceseceaeeesensenseeneees 122 People v. Ward (2005) 36 Cal4th 186 oo... ccccccesscececsececeeeceeseseeeaseeessscnssesesesenecsesseones 133 XVil People v. Watson (2008) 43 Cal4th 652 oo... cecccesccssecesceceseeceneeesaeeseaeensaeessneesaersatessaeenseesgs 134 People v. Weaver (2001) 26 Cal.4th 876 ooo. eccccccecsseceseceeeeeseeeesaeeseeeesseecsnessaeeeneseeseeones passim People v. Welch (1999) 20 Cal.4th 701 occcccccecsccsceseeeeesecseeseeseceeeseceeeeseseeeaesaeeaeesesenesaeens 34 People v. Wickersham (1982) 32 Cal.3d 307 .oo.ceceeceeceeseescceereeeeceseessecesecececenescesseesseeenerseesneeeaeees 106 People v. Williams (1989) 48 Cal.3d L112 eeeecceccseceereescetseceseceseesseseaseneesaeesatenees 31, 40, 41 People v. Williams (1997) 16 Cal.4th 153eecnceeeeecse cee cseeseseeetsecseessessssessesseaseassanees 136 People v. Yeoman (2003) 31 Cal4th 93 ooeeeeeeseessneessceessceesscecsaceesseceneecsaeeessesnsaeensnessaaes 67 People v. Young (2005) 34 Cal4th 1149 oiccccsscsseeccneeceseeeceeeeseeessaeesseeeseessaeeesaeeseaeenes 122 People v. Zamudio (2008) 43 Cal4th 327 ooo. cccccccescssececeeecesesseeneseeceseeecseeereeseneeeeeas 112,114 People v. Zapien (1993) 4 Cal4th 929iecceseseesseeesseeeeseeescessaeeesseeeeeseaesesaeessaeesaeersnees 81 Pulley v. Harris (1984) 465 U.S. 37ee ceccsccseeeeseceeecesecsaesesecsceseeeeaeenseseaeeeaeraesseeseeeeneesuenss 128 Ring v. Arizona (2002) 536 U.S. 584.eee eeseeceseeeeesseeeeenaeeseseecesssescnseeseeeesenseeeee 131, 132 Ross v. Oklahoma (1988) 487 U.S. 81 oo ccecccccsseesssseceseseeeesseeeesseecessaeessnsesesssasessnsesesenesensees 67 Tison v. Arizona (1987) 481 U.S. 137oieccccccsssnececcesssneeeeeeseecneeeceescaeeeesseaatesensnsnanesereeaaes 96 U.S. v. Washington (1991) 952 F.2d 1402.eeeeeceeceeeteeeeeceecnessesseseeessetaseeseeteetaetsasaentes 83 United States v. Lester (9th Cir. 1984) 749 F.2d 1288 oo... ececccccesscceesseeeesssceesneeceeteceeenaecesteneereaes 120 XVIil United States v. Walker (1981) 652 F.2d 708... cee cccsccssccesecssscessscesseeeseecsseeeeseecseeecsueesseeesseeesseenseeeaes 83 United States v. Williams (9th Cir. 1993) 989 F.2d LOO] vceecccccsssececssecessseeessseeeesseeeesseseeseesenes 119 Uttecht v. Brown (2007) 551 U.S. Lice cccccccsscccssccesseccesseeesesseecessseeesssesessseeeeeeseeeees 64, 73, 74 Wainwright v. Witt (1985) 469 U.S. 412. cceccccccscesecesssessseesseeesseeeeeeecseeeeseeennees 63, 65, 70, 71 Witherspoonvy.Illinois (1968) 391 U.S. SLO.cccccccssccssscccsssceeessseceesseccsesesecesseesesseesessesessseeeeaaes 64 Woodson v. North Carolina (1976) 428 U.S. 280... ccccccccsseessecsseeesseeseaeeenseesenecenecssaeessasesesenseeeseeaes 84 Zafiro v. United States (1993) 506 U.S. 534... eccccccssccssseceeecccesseeeesnsceesseceesseeesesseecessssesseseesseseenees 78 STATUTES Code of Civil Procedure § 225, subd. (D)(1)(C) oon. eccsscccsssceesseeeesseceseseecesseeecesseeecsseseseseeesneeesenseeseneess 63 Evidence Code SBSQceccscccessscesesecesnseeceenseeeesseeessseeessaeeseseeeeesaeecesseecseseeseseeseseseeenseeeessaeeees 97, 98 § 356. cccccccccccssscecccecsaeecceesssseseecseseseceecsuseeeecsesaseeseceesseeecesssaeeesensnseeees 77, 79, 81 Penal Code SSTee eccccccsseecesseeccsseeeesseeeessnseeesseeesseeessseecsseeecessaesenaeeseanecessneeeseseseseaneeeeaees 138 § 187, SUD. (a)... ecccceccssccecsssceeseecesseeesacesessseesessecseseseeueeeesseeeeseeeenseees 1, 137 S LOOeeececsccssscccsssecesseeeesesessseeesssecesseeeeenseeecsaeeseaseceesuesessnsecsseesenaees 75,115 § 1902.eccccccssecesssceeessneeeesseecseeesneessceesessaeeessnsecessuesessaeeceseueseeseesenatereates 129 § 190.2, subds. (a)(17)(1) and (17)(2)..... ccc ccececccesseccessseceseeesseeeeseeeessesensseeeenes 1 § 190.3. cccccccesseccssseeecsseeeesssecssnsecssseeeeneeesssessssaterseaeeeeeaeees 75, 112, 115, 129 § 190.3, SUD. (8)... ccc ccescccsssscssssccessceeeseeeessecesesseecesaeecesseecessaeeeeseceeesesesaees 111 § 190.4(€) oe eecscccssccesseccssneeeesseessseecesseecnsneeesscesecsaaecesnsceseseeenaeeeseaeeeesaeesseaees 124 BOQccccccecccesscccesssecesssceesssecesseseesssecenseeessaseecesssecesssecesseecessaseseeeeseseeegeas 106 $192, SUD. (8)... eecsccccsscceesssecesseeceseeceesseeeessecesseesensaesesssesensnsecenseseesaeeensgees 106 § 209, SUD. (Db) ooocece cc cccccsscccccessseeecessssceeeeseeeeececesseeecesseseteesceeeeeecessnaeeeeseeea l § 212.5, SUbd. (D) oecccccccccscccssseceescecessceensneeeseseeceseeeesseseseseecseseesseseesesseeensges l § 667.5, SUBCIVISION (D) oo... eecccececcecssscecesececeseeeessnneceseeeeesueeessasesseseecseaeesenaeesnes l § 1033, SUD. (8)... ceccccccccessceeesceeesceeessceeeeseceeesseeeeseceesseseceacecseseeenesesensseeesea 27 § L098.ee cceccccsescccenseceeeneeeesnaeeeesseeseseeeseseeeseseeeseeeeenuseesesaeeeneneeessaeeessnseesaeessea 78 S LI8L, subd. (5) occccccccccscccessceeesseccessecesesseeessseesssasesesseecetaeesesseeestseeenea 78 § 1192.7, subd. (C)(19) .... cee ceecccccessseseseecsenseeseseeeessseeeenseeecsaeeecsseeesssesesseeessneeessges l xix § 1239. ecccceccsssesecesssssvessssssesssssuvecssssusceesssvssssssusesssuvecsssssuucecessseetsseussaeessseveeesee 2 § 1259..cccccssssesscsssesscssececssusccssssecsessvesessuesessescessusssssasessssisessssiesensssessssecsnavessasvess 90 § 12022.5(a) ceesccscecscssecscsssvccessssssessusccssusecessescessuscessevecessuessssravesessssessssnesessecessaseess 1 § 12022, subd. (d) -.cscccccsceescsssseesessecscssscecesseccessuecessuvssssssecesssisesessssessssiecssssesesseeees 1 CONSTITUTIONAL PROVISIONS California Constitution Art, VU, § 2eceeeceeceneeeseceeeseceseesseceseesseceseseaeeeaeseaeseeesaeeesesesessesenteeaeeseseasens 96 Art. T, $$ 7, DSW1 7oeecececceeeeeceeeaeesecesecseceeeseeseesecaeeseeaessesaeesesseseseeesseeeseeaees 23 AIte], 9 US eeecececscccsecescessecesecsaeeenecseeeeaeceaecueececseeseeseaseaessesssesseesesenseeeseeess 101 United States Constitution Fifth Amendment ..0...........c cee ceceecsceccccccccccecececeserecscucecccececeetesttnacceseeeeers 79, 23, 83 Sixth Amendment ...0.... cc cecececcessesesseseseeseeecceaeeaeesecseeaeenesseesecessecseenaeeaeees passim Eighth Amendment .00...eeecscseeseseeeeeessceeeeeeeecesevseenecsesseseaeeaeenesaeenaees passim Fourteenth Amendment..........cccccecsssccesscsenscesseecsseecssecsseeserseseseneeceeeesnees passim COURT RULES Federal Rules Criminal Procedure Rule 14 ooo. ccccscescssssesscscsesevecceceecececceseseeescceaccaaeaueesuasnsasacaesentseessessesesesesess 78 OTHER AUTHORITIES | Weinstein, Evidence (1st ed. 1979) § L106.eeecccesescesteecesneeseeceaeeseaeessaeseseeeesnecenseeesseensecessseeseeenseenssesseeeeenseessas 83 CALJIC NO. LO]eceeccseeeseeseeceeeseessecesecssecssecsecesecaeceneccesseeaeseesaeeeaeseeeecaeeneeenaeens 92 NO. 1.02. eecceeseeeesceesneeceeeeseaeeseeeeeeaeessaeeeseeensseeesaeceseseseeseseeesesessesesaeeseeeenes 122 NO. 2.0] eeeeccececsecsseessesseecssessceessecseeeseceseessecessceseessesseceseceeeseeecseeeeesteeeates 139 NO. 2.02.eee eecscseeeeneeceneeceacesseeeseeeecsaeesseeessseesssecessecesesenetenseeseseseseeeaeesesaeesues 139 NO. 2.21 Lecce eeceseeneeeseeesecnseessessceesueceeeseceneesaeesseeeseeesesseesaesaeenseseeensesnsessate 139 NO. 2.22eee cecceseceseceneceseeeseesseessecesecsaeensereaesaessaeesseseceseceaeeeeesessaeeeeeeeaeeneeaas 139 NO. 2.27oe eecceeseceneeceseeecneeesseeceseeecaeecceeeesaeeseaeeseneessaeeessecsaeeessessseeesasensaeeenaeensas 139 NO, 2.5 Leese ceseessceessneessneceseeesseeecaeecsaeceaecesaeceaceseseseseeseseeesecssasenseeseeeeenees 139 NO. 8.75 .eeeeceesceeseeseeessesseecsnesseesseesseceaeceaecsaecenecaeensecoeensesseesatesseenseeeeeeeeeeaesaats 138 NO. 8.81.17eee cecceeeneeesneeeeeceneeeceeeeesseceseeeeseccneeenseeesneseseeeneseeseeseseenaeeenas passim NO. 8.83occcceeceseeceseeeeseeessneessnersnecsaneceaeeceaeeceseecaeenseeesseeeeeeniseeneeeseseessnes 139 NO. 8.83.1 cee eeeeecesseceseessecesecseessceeseesseeeeesaceneesaeeeaeenseserseaeeeaeeneeeasees 88, 139, 140 NO. 8.85 ecceccesesescesecseecsecesecseeeseeesecseeesseesacsseceeesseenseceeeseseaeceaeeeeeeseeesesenteeas 136 NO. 8.880.eeecesccesscecseersneessaeecseecesaeceseeceaeescaesessecenseensecesecenseeeensenesessaees passim NO. 9.50.cee eecescceseesteceseessecnsecsesseeesaecseesseceaeesaeesaeeeseceecseeeaesensessesecseeenseeses 102 NO. 9.56... eecccececeseesseeeesaeesececsaceceaeecsaeeesneeseseeseseessseeeaeeseesseecesaseeeseeaaees 102, 103 NO. 7.3 Looeee eeeeeecseeceseeeeseeesnecsanecsaeecsacessseecsaeeesseeeaeeeseeseeceseeeeeeeseeeeetaeeeaees 93 XX http://www.census.gov/population/www/censusdata/cencounts/files/cal 90 OOOAXEee eecccsseseensesseesscectecesecseceaeceseceessecsaeceseceresseecatecsersseresenasesasessonaaeea 4] International Covenant on Civil and Political Rights ..0.eeeeeeeeeeeereeeeees 96 XX1 STATEMENT OF THE CASE On March 10, 1994, the Kern County District Attorney’s Office filed an information charging appellant and his wife, codefendant Mary Elizabeth Stroder, in count | with premeditated first-degree murder (Pen. Code, § 187, subd. (a));' in count 2 with kidnapping to commit robbery (§ 209, subd. (b)); and in count 3 with robbery (§ 212.5, subd. (b)). Count 1 alleged as special circumstances that the murder was committed while appellant and Stroder were engaged in the commission of kidnapping and robbery within the meaning of section 190.2, subdivisions (a)(17)(1) and (17)(2).? (I CT 463-468.)° All counts alleged that appellant personally used a firearm (§ 12022.5(a)) and that Stroder did not, but knew that a principal was armed within the meaning of section 12022, subdivision (d). Counts 2 and 3 also alleged that the alleged offenses were serious felonies within the meaning of section 1192.7, subdivision (c)(19). All counts alleged that appellant had suffered prior convictions within the meaning of section 667.5, subdivision (b). (II CT 463-468.) Thetrial court struck these prior conviction allegations on January 20, 1995. (IV CT 989-1006.) On March 16, 1994, appellant pled not guilty, deniedall allegations, and demandeda jury trial. (II CT 475-476.) ' All further statutory references are to the Penal Code unless otherwise indicated. * Subdivisions (1) and (2) are now subdivisions (A) and (B). > “CT”refers to the Clerk's Transcript On Appeal; “SCT”refers to the Supplemental Clerk’s Transcript On Appeal; “2SCT”refers to the Second Supplemental Clerk’s Transcript On Appeal; “ECT”refers to the First Supplemental Clerk’s Transcript On Appeal containing the Exhibits; “JCT”refers to the Clerk’s Transcript On Appeal containing Juror Questionnaires; “RT” refers to the Reporter's Transcript On Appeal; and “AOB?”refers to Appellant's Opening Brief. All transcripts are referenced by volume number,unless there is a single volume, and page number. On May10, 1995,trial began with hearings on various motions in limine. (V CT 1437.) Jury selection began on May 12, 1995. (V CT 1442.) On June 16, 1995, the jury found the defendants guilty as charged and all special circumstances andallegations true. (VI CT 1723-1744.) On June 26, 1995, the penalty phase began. (VI CT 1789-1793.) On June 30, 1995, the jury returned a verdict of death for appellant and life without the possibility of parole for Stroder. (VII CT 1987-1992.) On August 11, 1995, the court heard and denied appellant’s motion for a new penalty phase and motion to reduce the penalty due to inter-case disproportionality, and imposeda sentence of death. (VII CT 2141-2142.) Stroder was sentenced to life without the possibility of parole. (VII CT 2186.) Appellant’s appeal is automatic under section 1239. STATEMENTOF FACTS Guilt Phase A. The Search for Diana Contreras On December9, 1993, 19-year-old Diana Contreras was supposed to arrive at her sister, Annette Perales’ house, by 1:30 p.m. to watch Perales’ children, and the children of anothersister, Valerie Alaniz. (12 RT 2139- 2140, 2151.) Diana’ never madeit, and she was notthe type of person who would fail to show up for an appointment. (12 RT 2140, 2143, 2151.) Hersisters tried to locate Diana. They called her apartment and her car phone, to no avail. (12 RT 2140, 2151.) At 10:30 that evening when their brother, Paul Contreras, got off work, they enlisted his help. (12 RT 2140-2141, 2154.) Together, they drove around the Valley Plaza Mall in * Respondentusesthe first names of Contreras’ family memberto avoid confusion and intends no disrespect. Bakersfield looking for her car, a 1992 red Eagle Talon. (12 RT 2141, 2154.) A mall security guard saw a newerred carin the Valley Plaza parking lot between 9:00 and 9:40 a.m. (13 RT 2455.) He saw a Hispanic female between the ages of 18 and 20 wearing a white long-sleeved shirt and a pair ofjeans exit the vehicle alone. (13 RT 2456.) Diana made several purchasesat the mall that morning between 10:15 and 11:15. (13 RT 2466-2467, 2471-2472, 2476-2477.) The security guard returned to the area sometime between 9:40 and 11:00 a.m., although he was unsureof the latter time. The red car was gone. (13 RT 2457-2458.) Diana’s family knew she had planned on shoppingat the mall that day. Whenthey failed to locate hercar, they filed a missing person’s report. (12 RT 2141, 2155.) Alaniz and Paul went to Diana’s apartment and broke the kitchen windowto enter. Diana’s boyfriend, Daniel, joined them. Alaniz stayed at Diana’s apartment until 3:00 or 4:00 a.m.; Daniel stayed the night. (12 RT 2141-2142.) The next morning, Perales went to Diana’s apartment. (12 RT 2151.) Alaniz drove to the Wells Fargo Bank on California Avenue where Diana did her banking. Receiving no information, she returned to Diana’s apartment. (12 RT 2142.) Paul went to Valley Plaza and showedpictures of Diana and hercarto a girl in a jewelry store and a security guard. (12 RT 2154, 2156.) The last time Alaniz saw Diana wasthe day before her disappearance. (12 RT 2144.) At approximately 7:20 a.m. on December10, 1993, Howard Smith, an operator for Texaco, went to a remote area a few miles from Taft to check onan oil well. (12 RT 2157-1258.) En route, he came upona girl’s body. (12 RT 2159, 2168.) The body had not been there the day before when Smith checked the well. (12 RT 2163.) Smith called two colleagues, Tim Watts and Jim Walsh, to come and witness what he had found. (12 RT 2164, 2211.) Watts and Walsh arrived in Walsh’s pickup truck and parked a few feet away from the body. (12 RT 2211-2212, 2232, 2234.) Smith’s truck was on the other side of Walsh’s, and away from the body. (12 RT 2234.) The men walked upto the body. (12 RT 2164-2165, 2213, 2244.) Smith tapped one toe with the toe of his boot. (12 RT 2174, 2191.) It was apparentto all three menthat the girl was not alive. (12 RT 2174, 2213, 2243.) Walsh could see that she had been shot. (12 RT 2236.) He also saw what appeared to him to be .30-30 caliber shell casings in front of the girl’s left foot. (12 RT 2217, 2236, 2241.) Watts left in Smith’s truck to call law enforcement. (12 RT 2234-2235, 2244.) B. Investigation of Murder Scene Kern County Sheriff's Deputy Scott Lopez arrived at the sceneat approximately 7:45 a.m. (12 RT 2165, 2191-2192, 2222, 2235, 2244, 2251.) He cordonedoff the area, and photographedthe oil men’s shoes and varioustire tracks for later analysis and comparison. (12 RT 2166, 2195, 2199, 2223, 2253-2254, 2261, 2268.) Kern County Sheriff's Homicide Detective Joseph Giuffre arrived at the oil field at about 8:45 a.m. and took overthe investigation. (12 RT 2263-2264; 15 RT 2675-2676.) He worked with Deputy Lopez to eliminate shoe prints and tire tracks already identified as belonging to the oil field workers. (15 RT 2677.) They tooktire track and other various measurements at the scene. (15 RT 2678-2679.) Thomas Fugitt, an evidence technician, and anassistant, photographed the scene which included photographsoftire and shoe tracks located five to 11 feet from the body. (12 RT 2272, 2297-2298, 2309-2310.) He collected and packaged four spent shell casings found at the scene andlater booked them into the department’s property room. (12 RT 2300-2301, 2309.) Madelaine Kaiser, an investigator for the coroner’s office, examined the body at the scene. (13 RT 2385.) She wrapped the body to prevent contamination and accompaniedit to Kern Medical Center. (13 RT 2386- 2387.) The body waslater identified as that of Diana Contreras. (12 RT 2142-2143, 2152; 15 RT 2681-2682,.) C. Appellant’s Arrest in Kansas and Subsequent Confessions On December10, 1993, Diana’s sisters provided Detective Giuffre with the license plate number to Diana’s red Eagle Talon, which he broadcastto local, state, and Midwestern states’ law enforcement agencies. (15 RT 2682-2683.) On December 15, 2009, Kansas State Troopers Terry Stithem and Chuck Wannamaker stopped Diana’s red Eagle Talon on Interstate I-70. (15 RT 2563-2564.) Appellant and Stroder exited the vehicle and were placed into custody. (15 RT 2565.) Stroder consented to a search of her purse. (15 RT 2567.) Inside the purse Officer Stithem found a marriage license and Stroder’s birth certificate. (15 RT 2569, 2577.) He also found Diana’s social security card under Stroder’s photo I.D. Officers seized from inside the vehicle a loaded .30-30 leveraction rifle, one motel receipt for the Regencyin Denver, Colorado, and two receipts for Harrah’s in Las Vegas, Nevada, a box of 16 Remington .30-30 caliber shells, a cloth bag with eight Winchester .30-30 caliber shells, Diana’s Wells Fargo checkbook, savings account book, ATM card,and driver’s license, and a Siamesekitten in a pet carrier. (15 RT 2587, 2621, 2623-2625-2626, 2631.) Detective Giuffre learned of the arrest the same day, and that law enforcement washolding the Eagle Talon in Wakeeney, Kansas. He flew out that night and met with local and state law enforcementofficers the next day. (15 RT 2684.) Detective Giuffre retrieved the evidence local authorities had seized andsenttherifle out for fingerprint tests. (15 RT 2784-2686.) Detective Giuffre conducted taped interviews of appellant on December 16, 1993 in Wakeeney, Kansas, and on December23, 1993 in Bakersfield. (17 RT 2994, 3011.) Appellant understood and waivedhis Miranda’ rights on both occasions.° (17 RT 2996, 3011-3012.) Appellant drove from Missouri in a Volkswagen Golf and arrived in California on December8, 1993. (17 RT 2997.) He brought the .30-30 rifle for protection. (17 RT 2997, 3028.) He wastrying to locate his aunt wholived somewhere around Fork Mountain in Northern California. (17 RT 3027.) He ran out of moneyandspentthe night in the parkinglot of a Von’s store on Wilson road. (17 RT 2997-2998, 3027-3028.) Appellant first saw Dianaat the Valley Plaza mall sitting in hercar. Hepulled up next to her. (17 RT 3012.) Appellant said that when she got out of her car, “she wasjust a little girl that wouldn’t fight or nothing.” Appellant did not follow her into the mall. (17 RT 3013.) He decided to rob Diana becauseit “just seemed like she wouldn’t be as muchtrouble.” (17 RT 2998.) Diana did not get into appellant’s car voluntarily. (17 RT 3008.) When she did, she looked down. The .30-30 rifle wassitting across the gear shift, partly in appellant’s lap and pointing downward. (17 RT 2998.) Appellant said, “I don’t want to hurt you. I just want some money.” > Mirandav. Arizona (1966) 384 U.S. 436. ° Appellate counsel draws his Statement of Facts from appellant’s unredacted confessions to police. (AOB 6, fn. 3.) Respondent presentsthis portion of the Statement of Facts from the version redacted to exclude any mention of Stroder, pursuant to court order, and which waspresentedto the jury throughstructured questioning of Detective Giuffre. (17 RT 1040- 1184; 17 RT 2994-3035; 2 ECT 410-424 [People’s Exhibit No. 7].) Exhibit No.7 is a verbatim replication of the detective’s trial testimony about appellant’s statements. (17 RT 3013.) After she got in, appellant set the rifle down low between the seats. (17 RT 2998.) Appellant claimed that he did not really plan anything, but thought maybehe could get some money from her. (17 RT 3013.) Diana said she had only $7. Appellant asked,“Is this all you got, all you can give me?” Diana offered to withdraw $100 from her bank account. He drove to Wells Fargo Bank. Diana gave him her card and PIN numberandtold him to take out $100, which he did. (17 RT 2999, 3028.) Appellant rememberedthat Diana had a car phoneso he did not return her to her car. He wantedto drop heroff far enough out of town to give him time to get away. (17 RT 2999-3000.) Diana showed him theeasiest way out of town. (17 RT 3030.) During the drive, appellant and Diana had casual conversation about her “going to school and thingslike that.” (17 RT 3029.) He drove to a desolate and remote area with no phonesnearby. His plan wasto drop her off and drive away. (17 RT 3000.) When Diana seemednervous aboutthat, appellant told her “he wouldn’t leave her off somewhere whereit’s too far from a call box or a gasstation or town.” (17 RT 3014.) He did not tie her up because if “no one came upthere in a few days she would die of starvation or something.” He also did not know what animals were out there. (17 RT 3015.) Appellant got out of the car to check the engine because they had traveled over a bumpyroad. (17 RT 3015.) Appellant explained: [I]t’s just that when she got out not to leave her andstuff, and I don’t know. And she waslike walking around the back, I guess, to my side, and I jumped out because I didn’t know what was going on, and I just grabbed the gun and I said just go. Because I thought maybe I could scare her, I guess. I don’t know. It was just a reaction. It wasn’t nothing planned to get out and aim and shoot or nothing, you know. Becauseif I would have donethat, I would havehid the shells and dragged her off somewhereif I was someinsanekiller just wanting to kill her. I would have doneit a lot differently. I was just like, you know,just go walk, whatever, you know,andit just happened. (17 RT 3005-3006.) Diana began crying and pleading with appellant not to leave her there. She said, “just drive me back into town.” At this point, appellant had the rifle in his hands, trying to scare her. (17 RT 3000, 3015.) When Diana camearoundto hisside, he told her to “just go, just start walking that way.” (17 RT 3000-3001.) Diana was coming close to him. Appellant said, “[J]ust start walking, please. I don’t want to shoot you.” She was pleading, “TD]on’t leave me, don’t shoot me.” Appellant told her to walk, “you'll find somebody. I don’t want to shoot you. I don’t want to hurt you.” (17 RT 3001.) Appellant said that when Diana came around the car she cameclose to him andeither she struck the barrel of the rifle or he twitched, he did not rememberwhich,causing the first shot. (17 RT 3017, 3028.) The bullet went through Diana’s purse and possibly through the bags she washolding. (17 RT 3009, 3017.) She flew back and “was laying there with her arms up, screaming.” (17 RT 3016.) He said whenhe saw the bullet hole just beneath her heart he wasflipping out. Appellant said the first shot was accidental, but that when Diana kept screamingin pain, he did not know whatto do so he shot her again. One shot missed because he was nervous, then he shot her again. (17 RT 3002, 3017, 3028.) Appellant claimed that he shot Diana more than once, while she was on the ground, because he did not wanther to go through any morepain. (17 RT 3003.) Appellant remembered seeing Diana’s face because he had nightmares; her eyes were open. (17 RT 3001-3002.) Appellant clarified the sequence of shots. Hesaid he didn’t shoot her three times bang, bang, bang. He shot her, she fell. He was freaking out and didn’t know whatto do. She wassitting with her arms up, screaming, and he shot again and he saw the gravel hit above, so he [didn’t] know ifit went through her when she was onthe ground or not. So he shot her again and she stopped. (17 RT 3005.) Appellantsaid, “I just stood there for a minute crying, because, man,I didn’t know what to do.” (17 RT 3016.) Appellant grabbed Diana’s bags and threw them into the car and pulled back out the same way he had driven in. (17 RT 3004-3005.) He returned to Valley Plaza and parked. Hesaid he cried and did not know what to do. He withdrew more money from Wells Fargo while in the Golf. (17 RT 3009.) The Golf’s engine was rattling because the alternator was broken, so appellant decided to take Diana’s car. (17 RT 3006.) He took one license plate from the Golf, but never put it on Diana’s car. (17 RT 3030.) He withdrew money again while in Bakersfield, then drove to Las Vegas. (17 RT 3007, 3009.) Appellant used Diana’s ATM cardthree times in Las Vegas and two more times later in Denver. He also signed somereceipts at a teller machine in Utah using the name “Robert Contreras” because he knew Diana’s father’s name began with an “R.” (17 RT 3007.) Appellant took Diana’s purse but threw it away; he could notrecall in what city. He kept Diana’s driver’s license, which he said had gun powder residue on it, as a memento,“just to give some respect because he prayed, andit is against his morals and religion and he’s never hurt anybody before.” He also kept her checkbook. (17 RT 3009-3011.) Appellant claimedthat had he intended to kill Diana, he would have dragged and hidden her body and taken and hidden the cartridges from the gun. (17 RT 3030-3031.) Appellant thought about turning himself in, and did not know whyhe did not. (17 RT 3010.) This completes the testimony recounting appellant’s statements. D. Circumstantial Evidence of Appellant’s Guilt 1. ATM Transactions Diana’s bank records for December 9 to December 15, 1993 showed the following ATM transactions for amounts up to Diana’s $300 daily limit, including unsuccessful attempts: withdrawals totaling $280 in Bakersfield, and twofailed attempts, on December9, 1993 (14 RT 2524-2528); withdrawals totaling $900 in Las Vegas, and multiple failed attempts, on December10 through December12 (14 RT 2529-2531); a withdrawal of $300 on Interstate 70 on December 13; and withdrawals of $600 from Colorado National Bank on December 14 and 15, 1993 (14 RT 2331-2332). 2. Contents of Stroder’s Volkswagen Golf Stroder’s father, Daniel Stroder, owned a 1986 Volkswagen Golf that his daughter used while living with him. (13 RT 2483-2484.) He saw his daughter on the morning of December3, 1993. She was supposed to meet him later that day in Cape Girardeau, Missouri, but she did not show up. (13 RT 2484-2485.) The next time he saw her was when she was under arrest. (13 RT 2485-2486.) Mr. Stroder owned a Winchester .30-30 rifle that he discovered missing from his home the samedayhis daughterleft in his car. He identified the rifle in court. (13 RT 2486.) Evidence Technician Theodore Grove photographed the Volkswagen Golf and items found inside it. (15 RT 2652-2654.) He seized and catalogued all the evidence taken from the vehicle. (15 RT 2657-2660.) Healso took test impressions of the Golf’s tires. (15 RT 2656.) He obtained fingerprints from soda cans inside the vehicle. (15 RT 2660.) Some matches were found for Stroder, but none for appellant or Diana. (15 RT 2662-2663, 2670-2671.) 10 Kern County Criminalist Brenda Smith testified that she examined the interior of the Volkswagen Golf for possible biological and trace evidence, such as fibers and debris. (16 RT 2759-2761.) She also reviewed items seized during Diana’s autopsy, such as hair and various fragments and fibers. (16 RT 2763-2764.) A visual comparison using a microscopic led Criminalist Smith to conclude that fibers and other trace materials found on the Golf's front passenger seat were similar to materials and fibers discovered on Diana’s clothing and otherareas related to her. (16 RT 2765-2783.) Only one piece of trace evidence was found onthe driver’s side of the Volkswagen Golf, “probable tissue with blood” that matched the samecollected from Diana’s jeans. (16 RT 2780-2781.) 3. Crime Scene Gregory Laskowski, Supervising Criminalist at the Kern County Regional Crime Laboratory,testified that the impressions from Stroder’s shoes appeared similar to a shoe print discovered near the body. (17 RT 2907-2910.) Even though other evidence showedthat only 876 pairs of those same shoes were sold in the western United States in 1993, including California, Criminalist Laskowski was unable to positively identify Stroder’s shoes as having made the impression near the body. (16 RT 2740-2741; 17 RT 2910-2911.) He also found a “good correspondence” between a “chunked out” portion of the front tread of Stroder’s left shoe and a similar “feathered or weak” track found at the scene. (17 RT 2912- 2913.) Criminalist Laskowskitestified about the shell casings found at the scene. Hesaid that in order to fire the Winchester .30-30 rifle, one moves the lever in a downward motion, which cocks the hammerto the ready position. In orderto fire, however, one mustfirst depress the safety mechanism located underthe rear portion of the stock. These actions must be repeated each time the weaponisto be fired. (17 RT 2879-2880.) It is Ik possible, he testified, that once the safety lever is depressed,the rifle could be discharged accidentally, but that would still require pulling the trigger. (17 RT 2921, 2943-2944.) Criminalist Laskowski conducted a trigger pull test on the Winchester to determine the force necessary to release the hammerto fire. The Winchesterrifle had a trigger pull of six pounds, placing it in the moderate range,i.e., greater than an easy pull such as a hairtrigger, requiring less than one poundof force, but less than a hard pull, requiring more than 12 pounds of force. (17 RT 2880-2881.) Criminalist Laskowskialso test-fired the rifle to compare shell casings from thetest fire to those found near Diana’s body. He concludedthatall four shell casings found at the scene were fired from Daniel Stroder’s Winchesterrifle. (17 RT 2882-2883.) He also concluded from examining the sweater Diana was wearing whenshot that the rifle could have been inches away whenfired. (17 RT 2928.) Forensic testing revealed Diana’s plastic driver’s license had been damaged; smudgingonit was lead, possibly from a bullet. (17 RT 2900.) Criminalist Laskowski also compared the test impressions on thetires of the Volkswagen Golf and the Eagle Talon to enlarged photographsof tire tracks found at the scene. He found that twotire tracks at the scene had similar tread designs as the front tires of the Golf. (17 RT 2902-2903.) No similarities were found for the backtires of the Golf, and none for any of the Eagle Talon’s tires. (17 RT 2904.) Criminalist Laskowski also compared test impressions of appellant’s shoes to shoe prints found at the scene. He concludedthat each of appellant’s shoes appeared similar to, or were consistent with, two shoe prints found at the scene. (17 RT 2909- 2912; see People’s Exhibit Nos. 76 and 82.) 4. Autopsy Sharon Pierce, an evidence technician with the Kern County Sheriff's Department, attended the autopsy on the victim. (13 RT 2393-2394.) She 12 photographed herandseized her clothing, personal effects, and other objects found on the body, such as bullet fragments and fibers. She also took various physiological samples, such as hair and body swabs. Ms. Pierce packaged everything seized and booked them into the property room. (13 RT 2394-2402.) Dr. Armand Dollinger, a forensic pathologist, performed the autopsy on Diana andtestified as to the cause of death. (13 RT 2407-2409.) Diana had beenshotthree times, once in the upper left abdomen,oncein the upper right abdomen,after the bullet had first passed through herright wrist, and once in the lower abdomen. Diana’s liver, right kidney, andleft lung were lacerated, and her heart was “destroyed”by the bullets. The path of one bullet suggested Diana was standing whenstruck. The paths of the other two bullets were consistent with the shots being fired from the direction of her feet toward her head while she wassupine,onebullet traveling from right to left and upward andthe other following nearly the same path. (13 RT 2434-2435, 2437-2438, 2440-2441.) In Dr. Dollinger’s opinion, death occurred instantaneously or within a few seconds. (13 RT 2409-2418.) Guilt Phase: Defense Appellant presented no evidence Penalty Phase Prosecution Evidence Perales was Diana’s sister. She was ten years older. Diana was a kind andtrusting person, attending college possibly to become a pediatrician. Perales and her two children were very close to Diana. (22 RT 3483-3484.) Diana wasalso very close to their mother, who became disabled in 1986 due to an accident. Diana always cared for her mother. She helped her bathe and took her shopping. (22 RT 3485.) Diana’s death 13 affected their mother — their mother continuesto call out for “Luli,” Diana’s nickname. (22 RT 3485-3486.) Dianawasalso close to her other nieces and nephews; she loved children. These children, too, were affected; they were quiet when they learned of Diana’s death, and would not speak much. Peralesfelt, “I was in shock, like somebody broke myheart in two.” (22 RT 3486.) Diana had lived her whole life with her family in her parents’ home; she movedout a few months before her death. (22 RT 3487.) Perales gave the prosecutor a group of photographs showinghersister at various stages in herlife. These photographs werereceived into evidence. (22 RT 3486-3488.) Valerie Lovett was 20 years old and was Diana’s best friend. (22 RT 3488-3489.) For her, Diana was nice and caring. Even if a person was evil, Diana believed that there was always a nice person inside. Ms. Lovett washurt badly by Diana’s death. (22 RT 3489.) Diana had manyfriends whocared for her; because she was so small, they protected her. (22 RT 3490.) Everyone liked her; no one had a reasonto hate her because she gave no one reason to. (3490-3491.) Raymond Contreras was Diana’s father. (22 RT 3491.) Diana was the sweetest person and hada kindheart, a heart of gold. The entire family loved her and wasso proud of her. Diana was trying to accomplish something. She wanted to help people; she wantedto help her father. Dianawas attending college, taking psychology to help her father cope with his wife’s car accident. Diana and her motherhadthe closest relationship. Her mother worshipped the ground Diana walked on. Diana took care of her mother — bathed her, combedherhair, did her nails, and took her to dinner and shopping. Diana “washer heart, she was her eyes, she was everything to my wife.” (22 RT 3492.) Diana’s death hurt everyone, but her mothertried to stay strong for the others. Raymond was “a broken man.” (22 RT 3493.) Diana worked with disabled people while she was 14 going to college. By beingthefirst to go to college, Diana changedthe family trend. (22 RT 3493.) Diana’s going to college made herfather’s 14 grandchildren want to go to college, too. (22 RT 3493-3494.) Defense Evidence E. Friends & Family Ruth Evers was appellant’s Sunday school teacher whenshefirst met him at eight to ten years old in St. Louis, Missouri. (22 RT 3533-3534.) Appellant participated in Bible class, youth nights, basketball, and various meetings and activities. (22 RT 3536.) Evers was also the Youth Director for a youth group in which appellant was active when he was 16 yearsold. (22 RT 3534-3535.) Evers also had contact with appellant when he graduated high school. She knewhis entire family. (22 RT 3535.) Evers testified that appellant was polite, warm, and caring. He did not seem to be violent; he was respected and got along with and related well to other children. (22 RT 3535.) He wasgentle aroundgirls, not aggressive or mean; he appeared to be protective of them. (22 RT 3536-3537.) Appellant was loving towards his youngersister. (22 RT 3537.) Evers recounted a church-related outing to Denver. Her group was meeting with other groups in an amphitheater when an extreme thunder storm suddenly dumped a massive amount of rain upon the crowd, causing flooding and panic. Appellant helped people downstairs andtried to keep them warm. When Evers next saw him at 1:30 a.m., he was wet and exhausted. (22 RT 3538-3541.) Johnny Marcum wasappellant’s 20-year-old best friend in St. Louis. (22 RT 3543-3544.) They met at a Steak ‘n Shake restaurant where they worked and a friendship developed. Marcumsaid that appellant wanted to go to college and that he wanted to do manythings. (22 RT 3545.) Appellant wasnot a violent person. Rather, he was friendly and 15 considerate of others. (22 RT 3545-3546.) Aroundgirls, appellant was friendly, caring, and personal [sic]. Marcum also found appellant to be protective of girls, of his mother, and even of Marcum. (22 RT 3546.) Appellant did not discuss his family problems, except when he and Marcum wentout; then, appellant would be afraid about whathis step-father would think. (22 RT 3546-3547.) Stacy Walker knew appellant from the Steak ‘n Shake. She also knew him outside of work. (22 RT 3549.) Walkertestified that appellant was a fun guy, caring and nice. He wasprotective of Walker. She recalled a numberof occasions when customers got upset at her. She would goin the back and cry and appellant would cometo her and say, “Don’t worry about it. Don’t let it get to you. It’s just a job.” (22 RT 3550.) Walker was Marcum’sgirlfriend. (22 RT 3552.) Susan Walkerfirst met appellant in 1988, through her aunt. They became friends and she later worked with him at the Steak ‘n Shake. (22 RT 3554.) Appellant wasfriendly, a hard worker, and a good friend who helped her at work, and he wasprotective of her. Appellant “liked to be everybody’s friend and help everybody out.” (22 RT 3555.) Joan Thompsonwasthe production trainer at Steak ‘n Shake and had knownappellant since 1986. (22 RT 3556.) Thompson and appellant eventually developed a “kind of mother-son”relationship. (22 RT 3557.) She knew him to be a very thoughtful and considerate person who would neverdeliberately set out to hurt anyone. He wasnotviolent, but polite. And appellant was protective of her. (22 RT 3558.) Appellant was engaged in all the youth programs. Thompsonbelieved that appellant believed in God. (22 RT 3559.) Jacqualen Messenger workedwith appellant at the Steak ‘n Shake for about three years and had known him five or six years. They also socialized together. (22 RT 3560.) Shetestified that appellant was sweet, 16 neverviolent, always polite with customers and a good worker. (22 RT 3561.) Carmen Hobson,appellant’s mother, testified that his father passed away whenappellant was almost twoyears old. (23 RT 3581.) Appellant’s father had problemssniffing glue, was self-destructive, and attempted suicide on “[qluite a few occasions.” (23 RT 3582.) Appellant’s father died when he washit by a car on the highway; it was not clear whetherit wasan accident or he had runinto traffic. A few days before his death, he had tried to commit suicide. (23 RT 3583.) Hobson married John Hobson and had three children with him, ages 15, 13 and 10 at the time oftrial. (23 RT 3581-3582.) Appellant was six years old when his mother methis step-father. (23 RT 3583.) Hobson admitted that between appellant’s father’s death and her remarriage, she drank and was an alcoholic. She received treatment and quit drinking. She spent a lot of time with appellant before her remarriage. Hobsontestified that appellant was a good boy, went to school everyday, behaved himself and made decent grades. (23 RT 3583-3584.) Hobsonsaid that appellant loved his siblings and took care of them. Theyall got along exceptionally well. As they grew up, they played together in the yard and played basketball. Appellant was alwaysclean, and he helped the others clean their rooms. Appellant also helped his mother with chores. As appellant wasthe oldest sibling, his responsible behavior seemedtypical to Hobson. (23 RT 3585.) Appellant was 13 years older than his sister and looked after her. They played together and were very close. (23 RT 3586.) Whenappellant reachedhis late teens, he began dating. His mother told him of his biological father’s problems, and urged him to protect women. (23 RT 3586.) She recounted that when she ran away from home at 15 years old and came to California, she was raped by three black men 17 while appellant’s father was present but unable to protect her. She impressed upon appellant that it was his responsibility to protect women. (23 RT 3586-3587.) Hobsonsaid that appellant was nevera violent child, although she recalled that appellant once got into a fight in high school over his family. Hobsonhad neverseen appellant with a weapon,although her husband had guns in the house and wasa hunter. (23 RT 3584, 3587-3588.) When appellant was seven years old he went hunting with Mr. Hobson once, but he did notsit still, and did not particularly care for hunting. Appellant never played with the guns or showed anyparticularinterest in them; he never even touched them. (23 RT 3588.) John Hobson wasappellant’s stepfather.. He testified that appellant was a good child, never disrespectful, played well with others, and took care of his brothers andsisters, all of whom looked up to him. (23 RT 3590-3591.) Mr. Hobson took appellant hunting once, but appellant squirmed, brokesticks, threw rocks, and did not show anyinterest in hunting, so Mr. Hobson never took him again. Appellant showed no interest in the guns in the home and never touched them. (23 RT 3592.) Through photographs, Mr. Hobson showedthe jury appellant’s accomplishments in schoolsports, i.e., a championship soccer patch from 1989, a jacket and medal he received for soccer, and ribbonsfor track and field and other events. (23 RT 3593-3595.) Appellant was involved in sports throughout junior high and high school. (23 RT 3595.) In 1992, appellant was injured in a serious auto accident—he had broken his back, requiring metal rod implants, and he had fractured his knee, requiring a steel plate implant. After the accident, he was unable to participate in sports; attempts at participation would cause muscle spasms. Mr. Hobsonsaid that his family loved appellant very much. (23 RT 3595.) 18 F. Dr. Michael Byrom Dr. Michael Byrom wasa clinical psychologist who evaluated appellant before trial. He spoke with family members, reviewed mental health records, reviewed appellant’s taped statements, interviewed appellant, and administered clinical tests to him. (23 RT 3596, 3598-3600.) Dr. Byrom found noevidence that appellant was psychotic orclinically sociopathic. He found appellant’s verbal skills to be in the low average range, and his non-verbalskills to be in the high range. (23 RT 3600.) Dr. Byrom measured, or attempted to measure, appellant’s propensity for recidivist violence. The doctor applied the “Monahan”test, named for its developer, which used 11 factors to screen for inherent violence in people. Appellant fit only three of these 11 factors, which would place him in the low recidivism range for violence. These three factors -- being under 25 years old, male, and peer environment, i.e., whether or not one associated with the criminal element, were not very goodat predicting future violence, but they indicated that appellant was not an inherently violent person. (23 RT 3601.) According to Dr. Byrom, a person’s history is the best single indicator of recidivist violence. (23 RT 3602-3603.) He searched appellant’s past for anything “damning,” but found nothing above and beyond whatthe Monahantest indicated. Dr. Byrom also found that appellant showed remorse. Four factors were to be considered. (23 RT 3603.) One who admits guilt tends to have more remorse. (23 RT 3603-3604.) Consistency of emotions and feelings when asked about the offense is important. Consistency of one’s statements also point to a greater showing of remorse. Finally, a person’s understanding of the effect their behavior had on the family is an indication of whetheror not the person has an idea of what they have done. (23 RT 3604.) Appellant’s report of inability to sleep and 19 seeing Diana’s face in his nightmares were indications of some level of remorse. (23 RT 3604-3605.) Overall, Dr. Byrom concluded, appellant was remorseful. (23 RT 3605.) Dr. Byrom also concluded that appellant could adapt to the prison environment. (23 RT 3605.) To reach the latter conclusion, Dr. Byrom reviewedreports which detailed appellant’s adjustment to a previous incarceration. The doctor used the “Hare Psychopathy Checklist, “which looks at a defendant’s level of sociopathy or level of psychopathic nature.’” Healso looked at appellant’s violence potential. When appellant’s profile was comparedto those of other state prisoners, appellant “did not fit the psychopathic insidious predatory profile of more hardened criminals.” Appellant’s judgment was poor. And, high-stress situations would “exaggerate or exacerbate appellant’s already deficient personality.” (23 RT 3606.) Appellant’s judgment and ability to reason things out would become more impaired with greater stress. (23 RT 3606-3607.) Dr. Byrom foundthat appellant was extremely insecure, “especially in the context of his relationships with adult women.” He found that appellant would “try to over-compensate for these feelings of inferiority with women by trying to portray himself as a big-shot or as a protector.” Dr. Byrom opined that a prison environment, separating appellant from any significant interaction with adult women, would decreasehis risk of being violent. (23 RT 3606.) Dr. Byrom did find that appellant’s inter-personal relationships were extremely poor due to “open expression ofhostility and anger,” but that the hostility and anger were not synonymous with propensity for violence. (23 RT 3608.) Similarly, although Dr. Byrom described appellant as angry, belligerent, rebellious, and resentful towards rules and regulations as well as hostile towards authority, appellant would notlikely express these characteristics through violence. (23 RT 3609.) 20 Dr. Byrom testified that appellant’s effect was “dull flat and bland in addition to periodic episodes of agitation and rage.” The doctor opined that appellant would express these feelings by becomingfrustrated with himself and very protective of those he felt were being wronged somehow, especially females. (23 RT 3609.) Appellant might also be expected to run away from authority, or to do the opposite of what an authority figure expected of him. (23 RT 3609-3610.) Finally, Dr. Byrom said that appellant was extremely impulsive, doing things without giving them adequate thought. (23 RT 3610.) G. Stipulations The parties made the followingstipulations: (1) Whenarrested in Kansas, appellant told the officer on the way to jail that what happened wentagainst his religion and everything he believed in. (2) While in custody in Kansas, appellant wrote several letters that contained the following statements: e I took another person’s life whether I wanted to or not I still did it. I wish I could reverse time but I can’t doit. e | just pray I don’t go to hell, God forgivesall sins. e My mom andI prayed together for forgiveness. I want to go to heaven,I believe in God and that Jesus died on the cross. e | pray for the girl’s parents too, I couldn’t imagine howthey feel. If someone killed my daughter I would kill them. I wish I could give herlife back. e | failed my family and friends, I failed God. I know Godis forgiving but he keeps giving me a chance,I blew it. I should have died last year but I’m still alive. I wish I would have died last year then that little girl would bealive. (22 RT 3562-3563.) 21 (3) Carolyn Zieman, a psychiatric nurse at the Lerdo pretrial facility, saw appellant on April 26, 1994. She reported that “[appellant] complained that he has trouble sleeping, he’s getting about an hour, one hourofsleep a night. He has nightmares and in the nightmares he keeps seeing herface.” Healso said that he had “ruined the victim[’]s family,” “family’s lives.” (22 RT 3563; 23 RT 3604.) (4) During the September 16, 1993 interview with Detective Giuffre, appellant told him that he thought aboutcalling Diana’s parents, her dad, but he wasafraid he would get caught. Appellant also told the detective that after the offense, he could not sleep, he was crying all the time, and he was a nervous wreck. Detective Giuffre asked appellant whether Diana deserved to die and appellantsaid, “‘no, she was a sweetlittle girl.” During the September 23, 1993 interview, when Detective Giuffre asked appellant what happened after Diana wasshot, appellant answered,“I just stood there for a minute crying. I did not know whatto do.” In response to another question, appellant said, “I saw Diana lying there, I guess God just wanted meto see her face, I guess. I saw her face, she was looking up so I started crying went to the car and droveoff.” (22 RT 3566-3567.) (5) Brenda Rountree is appellant’s aunt. She lives in Ford Mountain in Northern California. Before December 1993, she had written letters to the family in St. Louis inviting them to come and stay with her. 22 ARGUMENT I. THE TRIAL COURT DID NOT PREJUDICIALLY ERR IN DENYING APPELLANT’S MOTIONS TO CHANGE VENUE Appellant contendsthatthe trial court prejudicially erred in denying his repeated requests for a change of venue, thereby depriving him “ofhis rights to due process,a fair trial, equal protection, and reliable determinations on guilt, the special circumstances, and penalty.” (U.S. Const., 5th, 6th, 8th, & 14th Amends.; Cal. Const., art. I, §§ 7, 15~17; AOB 23-24.) Respondent disagrees. Moreover,error, if any, did not prejudice appellant. A. Factual Background 1. Pretrial Motion and Hearing On December8, 1994, appellant joined Stroder’s motion to change venue, alleging that there was a reasonable likelihood that he could not receive a fair trial in Kern County. (II] CT 884-IV CT 948.) Appellant attached three exhibits to his motion: i.e., copies of newspaperreports about the murder (Ex. A, II] CT 903-930), a public opinion survey by Dr. Terry Newell, Ph.D. (Ex. B, III CT 931-944), and a flyer for a rally and march on the Kern County Courthouse on May 14, 1994 where the Contreras family was to speak (Ex. C, III CT 945). On December16, 1994, the court held a hearing on the motion. (IV CT 981-986000.) At the hearing, appellant introduced into evidence newspaperarticles from the Bakersfield Californian from December 1993 to December 1994, a video tape entitled “Love For Life March” from May 1994, an advertisemententitled “Love For Life” for a march on July 9, 1994, and photographsof that march. (IV CT 986PP-986UU.) Thirty- seven people, not including media personnel and guest speakers, attended 23 the July 9th march. (IV CT 986TT.) The march concluded at the courthouse where Joe Klass, Polly Klass’ grandfather, state Senator Phil Wyman,and a spokeswomanfrom the governor’s office gave speeches to promote the newly formed Love For Life Foundation. (III CT 930; IV CT 986SS-986TT.) Dr. Terry Newell, Ph.D., a psychology professor at California State University, Fresno, testified about a public opinion survey he had conducted on appellant’s case. (IV CT 986E-986F.)’ He surveyed 263 adults from an expired jury list by telephone between November12 and 16, 1994. (IV CT 986F-986H, 986M.) Dr. Newelltestified that the survey was accurate to within three percent. (IV CT 986M-986N.) Of those surveyed, 81.4% “recognized the case” when askedif they had heard or read that 19-year-old Diana Contreras had been kidnapped at the Valley Plaza Shopping Center in December 1993 and shot to death near Taft. (111 CT 933; IV CT 986N.) Whenalso askedif they had heard that appellant and Stroder had been accused of murdering Dianaafter stealing her car and ATMcard,their recognition rate rose to 85.2%. (II CT 934; IV CT 9860.) Dr. Newell considered this to be a “very high recognition rate” for a one-year-old case, when compared to other Kern County cases on which he had worked. (IV CT 9868S, 986MM.) Of those who recognized the case, if chosen to be on the jury, 22.3% thought appellant was“definitely guilty,” and 24.1% thought he was “probably guilty,” based on what they hadread, seen, or heard, while 52.2% had formed no opinion. ’ The surveyitself is found at pages 931 through 944 of VolumeIII of the Clerk’s Transcript On Appeal. 24 (III CT 937; IV CT 986Q.) As for penalty, 54.8% of those who recognized the case would optfor the death penalty.® (IV 978, 986V.) Dr. Newell’s survey did not question people’s ability to set aside their beliefs as to guilt and punishment based on what they had learned about the case, and to decide the case based on evidence presented in court. The surveyalso did not ask whether or not people were pro death penalty, nor did it ask how strongly they felt about the death penalty. As a result, Dr. Newell admitted, there was no way of knowing what portion of the 52.7% who would vote for Stroder’s death would do so only because this was a murdercase, rather than because of what they had learned.” (IV CT 986CC-986EE.) Melvin Khachigian,a local realtor, former educator, and long-time Bakersfield resident, testified that, based on all he had learned about the case from the media, appellant was guilty and the penalty should be death. (IV CT 986VV-986XX.) On December 27, 1994, the trial court denied the change of venue motion. (4 CT 987.) 2. Renewed Motions During/After Voir Dire Atthe start oftrial, appellant indicated that he would challenge every potential juror who had formed an opinion about guilt based on pretrial publicity. (4 RT 703-705.). On June 1, 1995, appellant renewed his motion * This figure is an extrapolation from figures given regarding Stroder, as Dr. Newell did not pose this question in his survey regarding appellant. (IV CT 978, 986V.) ” Although the prosecutordid not pose this question in relation to appellant, the gist of it would still apply to him,i.e., Dr. Newell could not know whatpercentage of the 54.8% who recognized the case and would impose the death penalty for appellant would do so only because this was a murdercase. 25 for change of venue andtold the court that he would do so again after the jury was impaneled. (11 RT 2056-2057.) The court stated: Although we’ll show it being renewedat that time on the basis that I would assume in your mind, Mr. Sprague [appellant’s counsel], on behalf of your client .. . that albeit we do have a panel of approximately 81 or 80, maybeit’s 81 prospective jurors in this case, that’s a substantial number of those are tainted by the pretrial publicity, and that, in fact, the Court denying your motion to basically excuse those, some of those Jurors, the record will reflect when you made those motions,it was erroneous,that, in fact, the Court should have granted your challenges, and that if that had been done, we would not be with a sufficient numberin the panel, or am I reading too muchinto it? (11 RT 2057-2058.) Appellant agreed with the court’s summary of the defense’s position and addedthat “despite Hovey voir dire,’” we’re still in the position where publicity has contaminated this panel, and I would bein a better position to argue that when I see who’s on the panel.” The court then denied the motion as to the general panel and noted that it would hear further argument on the motion and makea final ruling after a jury was impaneled. (11 RT 2058.) On June 2, 1995, appellant filed an update of the publicity on the case and renewed his motion for change of venue. (11 RT 2066.) He stated that he had reviewed the long questionnaires of the panel of 82 prospective jurors and, based on their responses, he estimated that 30 percent had formed opinions about guilt and punishmentbased on publicity. (11 RT 2066-2067.) Thetrial court noted, “There isn’t a juror remaining who indicates that they could not set aside whateverit was that he had read or '° Hovey v. Superior Court ofAlameda County (1980) 28 Cal.3d 1. 26 heard, whatever opinions they may have formed.” (11 RT 2070.) The court again denied the motion. (11 RT 2071.) Appellant exhausted his peremptory challenges. (11 RT 2084.) The Jury and alternate jurors were sworn. (11 RT 2086, 2090.) Appellant renewed his motion for a change of venue, noting that one impaneled juror had heard publicity and felt that appellant was guilty or guilty of something, and that he could not excuse the juror because he had no remaining peremptory challenges. (11 RT 2092.) The court replied: There isn’t a juror or alternate in this case that was not further questioned [who] without hesitation, indicated they could be fair and impartial to both sides, that they could set aside anything that they’ve read, as to those that did read something,as to those whodid form an opinion, there were noneonthis panelthat indicated they could not set that opinion aside andbasetheir decision solely, exclusively on the evidence presented to them in this courtroom. There was nothing about anything they read that would prompt them to be anything other than fair, impartial in this case. | think that is the essence of what is necessary in this case in terms of keeping it here. I think that the alternatives would beif in fact the Court were confronted with the situation where we’re unable to muster 12 people to hear this case because ofthe pre- trial publicity, by that I mean we could notfind 12 jurors who could set aside whateverit was that he read or heard about the case, independently decide it exclusively on whatis presented in this courtroom, I obviously would be in a different position. I think that’s the scenario that would require a change of venue; not what wehavein this case. So the renewed motion is denied at this point. (11 RT 2093-2094.) B. Analysis A changeof venue must be granted when the defendant demonstrates a reasonable likelihood that a fair trial cannot be held in the county. (§ 1033, subd. (a); People v. Vieira (2005) 35 Cal.4th 264, 278-279.) In 27 ruling on the motion,the trial court considers: (1) the nature and gravity of the offense; (2) the nature and extent of the news coverage;(3) the size of the community; (4) the status of the defendant in the community; and(5) the popularity and prominenceofthe victim. (/d. at p. 279.) On appeal,it is the defendant’s burden to show: (1) that denial of the venue motion was error (i.e., a reasonable likelihood that a fair trial could not be had at the time the motion was made); and (2) that the error was prejudicial (i.e., a reasonable likelihood that a fair trial was not in fact had). (People v. Prince (2007) 40 Cal.4th 1179, 1213.) Reasonable likelihood means something less than “more probable than not” and something more than merely possible. (People v. Dennis (1998) 17 Cal.4th 468, 523.) The reviewing court sustains any factual determinations supported by substantial evidence, and independently reviewsthe trial court’s determination as to the reasonable likelihood ofa fair trial. (People v. Hart (1999) 20 Cal.4th 546, 598.) These five factors did not justify a change of venue. 1. Nature and Gravity of the Offense. Appellant contendsthat this case “was not a garden variety murder case,” also noting that “[mJurders which are cold blooded or committed execution style reflect a high degree of sensationalism.” (AOB 35.) Murderis, of course, a crime of the utmost gravity. (People v. Harris (1981) 28 Cal.3d 935, 948.) However, the sensationalism inherentinall capital murder cases will not in and ofitself necessitate a change of venue. (Odle v. Superior Court (1982) 32 Cal.3d 932, 942-943; People v. Jenkins (2000) 22 Cal.4th 900, 943.) The peculiar facts or aspects of a crime which makeit sensational, or otherwise bring it to the consciousness of the community, define its “nature’; the term “gravity” of a crime refers to it seriousness in the law andto the possible consequencesto an accused in the event of a guilty verdict. 28 (Martinez v. Superior Court (1981) 29 Cal.3d 574, 582.) Although defendant was charged with very serious offenses, every capital case presents a serious charge. This factor adds weight to a motion for change of venuebutis not dispositive. (People v. Proctor (1992) 4 Cal.4th 499, 524 [defendant charged with rape, torture, and murder of well-knownteacher in Shasta County].) The Proctor Court held the nature of defendant’s acts tended to support a change of venue, but not to the degree of a case involving serial murders. (/d.at p. 523; see also People v. Jennings (1991) 53 Cal.3d 334 [defendant raped and bludgeoned one woman,and beat to death or drowned three female prostitutes]; People v. Hernandez (1988) 47 Cal.3d 315 [defendantbeat, raped, sodomized, murdered, and mutilated a 21-year-old woman and a 16- year-old girl].) Indeed, a change of venue will not result simply because a defendant is charged with capital murder. (See, e.g., People v. Fauber (1992) 2 Cal.4th 792, 817-818; People v. Hamilton (1989) 48 Cal.3d 1142, 1159.) While the investigation and details of the offense predictably attracted the media’s attention, the same could be said of most murders. (People v. Dennis, supra, 17 Cal.4th at p. 523.) Simply put, this case lacked “the sensational overtones of other killings that have been held to require a change of venue, such as an ongoing crime spree, multiple victims often related or acquainted, or sexual motivation.” (People v. Fauber, supra, at p. 818.) The nature of the crime — kidnapping, robbing, then shooting someoneto death — did not have sensational overtones compared to other murder cases involving change of venue motions. (See, e.g., People v. Hayes (1999) 21 Cal.4th at pp. 1211, 1249- 1252 [removal of victims’ heads and hands].) Thus, the nature of the offenses charged here in and of themselves did not justify a change of venue. 29 2. The Size of the Community. The California Supreme Court has reviewed the size of Kern County for purposes of venue motionsin series of cases. In People v. Balderas (1985) 41 Cal.3d 144 (Balderas), the court held the population of Kern County did not weigh in favor of changing venuein a capital case: The larger the local population, the morelikely it is that preconceptions about the case have not become imbeddedin the public consciousness. [Citation.] Kern County, with a 1981 population of 405,600, ranked 14th among California’s 58 counties in that respect. (State of Cal., Cal. Statistical Abstract (1981) table B-3, p. 15.) Cases in which venue changes were granted or ordered on review have usually involved counties with much smaller populations. [Citations.] (People v. Balderas, supra, 41 Cal.3d at pp. 178-179.) People v. Murtishaw (1989) 48 Cal.3d 1001, 1015 relied on Balderas and similarly held the size of Kern County did not weigh in favor of changing venuefor defendant’s penaltyretrial in 1982. In fact, denials of requests for venue changes have been upheld in cases involving counties with significantly smaller populations than Kern Countyat the time of appellant’s trial. [See People v. Vieira, supra, 35 Cal.4th at pp. 280-283 [Stanislaus County, population 370,000]; People v. Hayes, supra, 21 Cal.4th at p. 1251 [Santa Cruz County, under 200,000 population] People v. Coleman (1989) 48 Cal.3d 112, 134 [Sonoma County, 299,68 1 population].) In People v. Weaver (2001) 26 Cal.4th 876, the court again found the size of Kern County did not favor changing venue for defendant’s 1984 trial in a capital case. The size of the communityis relatively neutral; as defendant asserts, Kern Countyis “neither large nor small.” At the time of trial [1984], the county had a population exceeding 450,000 and Bakersfield, where the trial was held, had a population of 200,000. The key consideration is ““whether it can be shownthat 30 the population is of such size thatit ‘neutralizes or dilutes the impact of adverse publicity.’ [Citations.] The adverse publicity in this case wasneither relentless nor virulent. The moderate size of Kern County thus does not underminethetrial court’s decision to deny the change of venue motion. (People v. Weaver, supra, 26 Cal.4th at p. 905.) In the instant case, the prosecution stated in their opposition, without contradiction, the population of Kern County was over 500,000 and that of Bakersfield was over 300,000. Given the substantial increase in the community’s population, as compared to Balderas and Weaver, it cannot be said that the size of the community weighed in favor of changing venue. 3. The Status of the Defendant in the Community and; 4. The Popularity or Prominenceof the Victim. Appellant claims that because he and Stroder were from Missouri and the victim wasa local resident, his outsider status “weighed in favor of a change in venue.” (AOB 42-43.) He selects three survey comments in support of his position. (AOB 43.) He argues that Diana’s posthumous celebrity also favored a change in venue. (AOB 44.) Although appellant was an outsider in a geographic sense, he wasnot an outsider in terms of race. (Cf. People v. Williams (1989) 48 Cal.3d 1112 (Williams).) Moreover, appellant did not come to Bakersfield with any particular purpose, including committing crimes, but was there only because he ran out of money and gas. (17 RT 2997-2998, 3027-3028.) Neither defendant nor the victim was prominentor notoriousapart from their connection with the present proceedings. As in other cases, [a]ny uniquely heightened features of the case that gave the victim and defendant any prominencein the wakeof the crimes, which a change of venue normally attempts to alleviate, would inevitably have become apparent no matter where defendant was tried. 31 (People v. Dennis, supra, 17 Cal.4th at p. 523.) Moreover,it is the status of appellant and the victim before the crimethat is relevant to this particular issue (see Prince, supra, 40 Cal.4th at p. 1214; People v. Ramirez (2006) 39 Cal.4th 398, 434), and the people submit that post-crime publicity is more appropriately addressed under the category of nature and extent of media coverage. In any event, the bulk of the post-crime publicity upon which defendant relies was disseminated between December 1993 and February 1994, with a few articles appearing as late as the summerof 1994. (III CT 903-930.) The trial began almost one yearlater, in May 1995. The passage of time ordinarily blunts the prejudicial impact of widespread publicity. (See People v. Jenkins, supra, 22 Cal.4th at p. 944; People v. Dennis, supra, 17 Cal.4th at p. 524; see also People v. Robinson (2005) 37 Cal.4th 592, 623.) Here, too, a number of survey comments reflected a more reasoned sentiment in the community: “I would have to see the evidence first.” “I can’t form an opinion without being on the jury or without the facts.” “With so much publicity, the media tendsto try people before the courts do. This is not fair.” (III CT 942.) “I would need to hearall the evidence in court before making a decision aboutguilt or innocence. They deserve a fair trial.” (III CT 944.) Neither appellant’s status nor Diana’s prominencein the community favored a change in venue. 5. The Nature and Extent of the News Coverage. Appellant relied heavily on the nature and extent of the news coverage, basing his motion on series ofarticles published in The Bakersfield Californian, which described, among other things, appellant’s arrest and confession. Appellant appended 22 articles to his motion, the number and month andyearof publication as follows: 10 articles in December, 1993; four each in January and February, 1994; one in March, 1994; two in April, 1994, and onein July, 1994. (III CT 903-930.) 32 The newspaperarticles were neither extensive nor inflammatory. Indeed, the articles were fairly factual and addressed the murder investigation, the couple’s arrest, and appellant’s confession. The number of newsarticles - 22 - was relatively minimal and the majority of the articles were published one-and-a-half years before jury selection. Thelast article appeared approximately one year beforetrial. (Cf. People v. Cummings(1993) 4 Cal.4th 1233, 1275, fn. 16 [no need to change venue despite 51 newspaperarticles and 24 television reports].) Certainly, the evidence of media coverage was considerably less extensive than in other cases in which this Court has affirmed denials of motions to change venue. (See, e.g., People v. Prince, supra, 40 Cal.4th at pp. 1210-1214 [270 newspaperarticles and extensive television coverage]; People v. Ramirez, supra, 39 Cal.4th at p. 434 [trial court described media coverage as “saturation, as muchasthey possibly can give’”]; People v. Sully (1991) 53 Cal.3d 1195, 1237 [193 newspaperarticles, 300 pages of television transcripts, and eight videotapes].) The public opinion survey was conductedafter the publication of the newspaperarticles, and almost one year after the murder. (II] CT 903-930; IV CT 986F-986H, 986M.) It showedthat just over half of those who recognized the case apparently had not formed an opinion concerning appellant’s guilt. (III CT 937.) This high numberof unformed opinionsis even more striking when oneconsiders that the march to the courthouse had taken place a mere six months earlier. (Ex. C, II] CT 945.) In any event, given the size of the community, that left an ample number of prospective jurors from whom to choose. (See People v. Leonard (2007) 40 Cal.4th 1370, 1395-1396 [change of venue properly denied where 85 percent of those surveyed had heard of case, and 58 percent of those had formed opinion as to guilt]; People v. Prince, supra, 40 Cal.4th at p. 1211, p. 1214 [change of venue motion properly denied where survey showed74 percent 33 of respondents were aware of case despite little publicity in preceding six months, and of those, 25 percent were predisposed to find defendant guilty]; People v. Ramirez, supra, 39 Cal.4th at pp. 432-434 [change of venue not compelled where, following media “’saturation,’” 94.3 percent of survey respondents had heard of case, and 51.7 percent thought defendant was responsible for Night Stalker murders]; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 45 [change of venue motion properly denied where survey showed almost 71 percent of participants who resided in judicial district from which jury was drawnrecalled case, and over 80 percent of those had formed opinionas to guilt]; People v. Welch (1999) 20 Cal.4th 701, 743, 745 [change of venue not compelled where surveyresults disclosed 65 percent ofjury-eligible individuals had heard of case, and 78 percent of those had prejudged defendantto be guilty]; People v. Proctor, supra, 4 Cal.4th at pp. 524-525 [change of venue not compelled where survey showed 80 percent of those contacted had heard ofcase, and 31 percent of those had formedopinionasto guilt]; People v. Jennings, supra, 53 Cal.3d at pp. 359, 363 [change of venue motion properly denied where survey showed 72 percent of respondents recalled case, 51 percent thought they might be influenced by the publicity, and 31 percent believed district attorney had very strong case against defendant].) “The key consideration is ‘whether it can be shownthat the population is of such a size that it “neutralizes or dilutes the impact of adverse publicity.”’ [Citations.]” (People v. Weaver, supra, 26 Cal.4th at p. 905.).) As the California Supreme Court has observed, Kern County’s population did not weigh in favor of changing venue in a capital case. (People v. Balderas, supra, 41 Cal.3d 144, 178-179.) And, significantly, the survey did not take into account how many of those would be able to set their opinions aside and basetheir decision entirely on evidence presented in court. “Pervasive publicity alone does not 34 establish prejudice. [Citation.]” (People v. Prince, supra, 40 Cal.4th at p. 1214.) “It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” [Citations.]” (People v. Panah (2005) 35 Cal.4th 395, 448.) Finally, the jury selection procedures used by the court in this case ensured fairness. The prospective jurors were required to complete a 29- page questionnaire and reveal their prior media exposure to this case. (See 1 JCT 2-30 “Prospective Juror Questionnaire;” see | JCT 8-11 for media- related questions.) Prospective jurors were orally questioned privately about their responses. (See, e.g., V CT 1443.) The court and the parties also questioned the prospective jurors about their exposure to this case during general voir dire. (See, e.g., V CT 1513.) The court’s careful procedures thus sought to reveal the impact of media coverage and screen out membersof the panel who were influenced by such coverage. (See, e.g., People v. Staten (2000) 24 Cal.4th 434, 450.) As the trial court noted: There isn’t a juror or alternate in this case that was not further questioned withouthesitation, indicated they could be fair and impartial to both sides, that they could set aside anything that they’ve read... (11 RT 2093.) Therefore, the typical and minimal news coverage in this case did not justify a change of venue. Given the circumstances of the murder, i.e, the death of a single victim by gunshot, without more, the nature and gravity of the offense did not weigh in favor of a change of venue. (People v. Weaver, supra, 26 Cal.4th at p. 905.) And, as noted above, nor did the remainingfactors. Accordingly, the trial court properly denied the motion. C. Juror Voir Dire and Lack of Prejudice Even assuming error occurred, appellant cannot showthat the error wasprejudicial, i.e., he cannot show a reasonable likelihoodthat a fair trial 35 was notin fact had. (People v. Prince, supra, 40 Cal.4th at p. 1213.) Appellant suffered no prejudice, and the trial court properly denied the renewed motion madeafter jury selection. “[A]ny inference that an impartial jury could not be impaneled wasrefuted by the actualities of voir dire.” (People v. Edelbacher (1989) 47 Cal.3d 983, 1003, disapproved on other grounds in People v. Loyd (2002) 27 Cal.4th 997, 1008, fn. 12.) On June 2, 1995, the jury and alternate jurors were sworn. (11 RT 2086, 2090.) Here follows a brief summary ofvoir dire for the 12 impaneled jurors. Juror 045973 had heard about a murder in a shopping mall, but recalled nothing more. (2 RT 256-257.)'' He would have no problem setting aside that information and deciding the case solely on what was presented in court. (2 RT 257.) He had no strong feelings about the death penalty, but rather had mixed feelings. (2 RT 253.) He would not automatically impose it, but would consider both penalties and could imposethe death penalty if warranted. (2 RT 253, 256, 258.) Juror 046113 did not recall anything about the case. (2 RT 300.) He had not thought much about the death penalty, but agreed with it. (2 RT 296.) He would not automatically impose the death penalty but could in the '' The record includes select, unbound pagesof redacted jury voir dire of the impaneled jury contained in a sealed envelope. Like appellant, however, respondentcites instead to the unredacted Reporter’s Transcript on Appeal which includes the entire voir dire, but also includes juror names. “RR”refers to the 15-page Receipt for Records (Criminal), produced at appellant’s behest, which matched juror names with juror numbers for purposesofidentification and citation herein. (Also, the RR identifies only 11 jurors, but the omission of Juror 047872 appears irrelevant as heis readily identifiable by matching the redacted unbound page 775 to the unredacted pages 774 and 775 of Volume 4 ofthe Reporter’s Transcript on Appeal.) To respondent’s knowledge, no redacted version of the complete voir dire exists. 36 appropriate case, depending onthe facts and circumstances. (2 RT 298.) Althoughnotinterested in hearing evidence aboutthe person as a whole besides just crime evidence, he would considerit if so instructed. (2 RT 302.) Juror 045991 had heard that a girl was abducted from the Valley Plaza and taken to a field and killed, but recalled nothing else about the case. (3 RT 369, 372.) She could not say whethereither defendant was guilty of the charges. (3 RT 369-370.) She would not automatically vote for death or life irrespective of the evidence. (3 RT 373.) She would want to hear about the person before deciding the penalty. She could impose the death penalty if she felt it was appropriate. (3 RT 376.) Juror 047328 had heard nothing about the case, believed in the death penalty, but did not believe that it should be imposed in every murdercase. (4 RT 698.) She found both the circumstances of the offense and the backgroundofthe accused relevant to her penalty decision. (4 RT 701.) If the murder were shownto be a deliberate, intentional killing, she would lean toward the death penalty, but would not exclude life without the possibility of parole. (4 RT 700-701.) Juror 048382 had read some newspaperarticles about the case whenit occurred, but could set that information aside and judge the case solely on what waspresented in court. (4 RT 705-706.) The murder upset the juror, who believed appellant was guilty of something, although that would not make him lean towards the death penalty. (4 RT 709, 711.) He believed that appellant would haveto be “proven guilty, not proven not guilty.” He would not impose the death penalty in all cases, even if someone deliberately kills, but only in appropriate cases, depending on the circumstances. (4 RT 711.) Juror 047872 only recalled hearing about the location of the corpse, and that was due to his working in the Taft area. He had not formed an 37 opinion about the case, could presume the defendants innocent, and could decide the case solely on the evidence. (4 RT 775.) He would not automatically vote for the death penalty if the killing were intentional because “it could be a numberofthings to lead to intentional.” (4 RT 780.) He would impose the appropriate sentence based on “all of the facts and the findings” throughoutthetrial. (4 RT 784.) Juror 048144 had heard nothing about the case and had no opinion aboutit. (6 RT 1069-1070.) He could impose the death penalty where the facts and circumstancesof the case warrantedit, but “would haveto listen to all of the evidence to determine that.” (6 RT 1070, 1172.) Juror 048108 heard that the victim was found murdered in Taft, that a rifle had been usedto kill her, and that the defendants were captured driving her car somewhere in the Midwest. He could set aside his opinion that the defendants were guilty of something, would fairly listen to both sides and decide the case based on the evidence presented in court, and could impose the death penalty if appropriate. (6 RT 1153-1154, 1159.) Juror 049934 had heard nothing about the case and had formed no opinion aboutit. (7 RT 1355-1356.) He would not automatically vote one wayorthe other, but “would have to look at the whole spectrum of everything going on.” (7 RT 1357.) He felt that the death penalty was a strong deterrent but that all avenues should be explored before usingit, and, if warranted, would imposeit. (7 RT 1358-1360.) Juror 049200 had heard nothing about the case and had formed no opinions. (7 RT 1456.) She could impose the death penalty depending on the facts and circumstances. (7 RT 1457.) She would weighall the evidence and would not automatically impose either penalty, even if the killing were shown to have occurred during the course of a robbery. (7 RT 1457-1458.) 38 Juror 049614 had heard that two people had been caught with the victim’s car and credit cards. He had formed no opinion about the case and could set aside pretrial information and judgeit solely on the evidence presented in court. (9 RT 1669.) He would wait to hearall the evidence, including evidence of the special circumstances, before deciding the penalty, which could go either way. (9 RT 1671-1672.) Juror 049933 had heard and read some details about the case. (9 RT 1781-1782.) He could judge the case solely on the evidence presented in court, would not automatically impose penalty, and would imposethe death penalty in the appropriate case, depending on the facts and circumstances. (9 RT 1782, 1784-1786.) At the conclusionofvoir dire, appellant renewed his motion for change of venue. (11 RT 2092.) In particular, he stated that had he had any remaining peremptory challenges, he would have exercised one on Juror 048108 because that juror had indicated that the defendants were guilty of something. This ignores the fact that Juror 048108 also stated he could be fair to both sides and base his decision on evidence in court. “The issueis. .. the jurors’ ability to lay aside any impressions they may have received and decide the case on thetrial evidence.” (People v. Edelbacher, supra, 47 Cal.3d at p. 1003.) All jurors who had heard about the case and had formed an opinion aboutit stated that they could put that information and opinion aside and judgethe case solely on the evidence presented in court. Thetrial court properly denied the motion, stating, as noted earlier, thatall jurors and alternates “without hesitation, indicated they could be fair and impartial to both sides.” (11 RT 2093.) Althoughthe jurors’ assurances of impartiality are not dispositive (citations), neither are we free to ignore them (citations). We havein the past relied on jurors’ assurancesthat they could be impartial. (Citations.) Absent a showing that the pretrial publicity was so pervasive and damaging that we must 39 presume prejudice (citations), we do the same here. Considering all the circumstances, defendant has not established a reasonable likelihood, as opposed to a mere possibility, that he did not in fact receive a fair trial before impartial jurors. (Citation.) (People v. Lewis (2008) 43 Cal.4th 415, 450.) Appellant comparespretrial publicity in his case with that in People v. Williams, supra, 48 Cal.3d at page 1112, to show that just as this Court reversed on this issue there, it must here. He notes that in Williams, 52% of the prospective jurors had read or heard aboutthe case, including eight of the sworn jurors, and fewer than 9% were excused for cause because they could not disregard their opinions about the case. Here, he continues, 75% of the venire knew about the case, and 38% were excused for cause, both numbersgreater than in Williams. (AOB 53.) Therefore, he argues, change of venue there mandates the sameresult here. (AOB 53.) But appellant ignores the salient differences between the twocases. Williams involved two African-American brothers from Sacramento indicted in Placer County for burglary, and the rape, kidnapping, kidnapping for purposes of robbery and murder of Heather Mead,“a virgin or sexually inexperienced” 22-year-old white woman. (Williams, supra, at pp. 1117-1118, 1128.) Also, at the time oftrial in 1981, Placer County had 117,000 people, only 402 of whom were African-American. (/d.at pp. 1126, 1132.) More than 50 newspaperand radio reports, some inflammatory, appeared during the 9-month period between defendant’s arrest and motion. (/d. at p. 1127.) On the status of the defendant and victim, this Court stated: [W]here, as here, the victim is a local woman from a prominent family, the district attorney and the prosecution witnessesareall well known,and the accused-- representing the quintessential “other” in both a geographic andracial sense-- is charged with crimes bearing both sexual and racial overtones, the risk is enormously high that the verdict may be based on a desire for 40 revenge,or the fear of social ostracism as the cost of a mitigated verdict. (Williams, supra, at pp. 1130-1131.) All of the factors discussed above are exacerbated bythe fact that defendant was charged with an exceptionally brutal slaying, and faced the gravest of punishments. (/bid.) In this case the risk was unacceptably high that the jury would treat defendant — ‘‘a young black man,a stranger to and friendless in the community”(citation omitted) -- as a dehumanizedstranger. (Ibid.) This Court thus concludedthat “all of the relevant analytical factors, viewednotonly in isolation but in relation to one another, compelled a change of venuein this matter.” (Williams, supra, at p. 1126.) A fair comparison of Williams to this case, however, compels the conclusion that venue need not have been changed here. Kern County’s 1980 population was approximately 403,089, nearly three and one half times that of Placer County. (http://www.census.gov/population/www/censusdata/cencounts/files/cal90 090.txt. [as of February 18, 2010]XXX) The victim, although local, was not prominent, and knowledgeofthe parties in court was notan issueatall. Appellant is not African-American, but is white, and sexual assault was not an issue here. Accordingly, this Court should find that appellant has failed to demonstrate a reasonable likelihood that denial of his motion for change of venue resulted in the denialofa fair trial. Il. THE TRIAL COURT PROPERLY DENIED APPELLANT’S CHALLENGES FOR CAUSE TO FOURTEEN PROSPECTIVE JURORS Appellant contendsthat the trial court prejudicially erred in denying his challenges for cause, depriving him “ofhis rights to due process and 4] equal protection, to a trial by an impartial jury, and to receive a fair and reliable penalty determination.” (AOB 55.) Respondent disagrees. A. Relevant Proceedings Below 1. Juror 049614 Juror 049614 had heard about the case from the newspaper and television, but could set aside what he had heard and judgethe case solely on the evidence presented in court. (9 RT 1669, 1677.) He had formed no opinion about the case and could presume the defendants innocent. (9 RT 1669-1670.) Assuming a guilty verdict had been rendered andthe special circumstances foundtrue, Juror 049614 would wait to hear the penalty phase evidence before imposing penalty one way or the other. (9 RT 1671.) A first-degree murder committed during the course of a robbery or kidnapping would not cause him automatically to vote for death. (9 RT 1672-1673.) He would “weighall the evidence” and “wouldn’t automatically go one wayorthe other.” (9 RT 1673.) Juror 049614 believed that when the death penalty is imposed,it should be carried out soonerrather than later where there is a guilty verdict and the offender admits culpability, because “the appeal process just takes too long, basically.” (9 RT 1678.) Juror 049614 would consider evidence of appellant’s past and other evidence notdirectly related to the crimes to evaluate the appropriate penalty. (9 RT 1680-1681.) Onhis questionnaire, Juror 049614 indicated that criminals have too manyrights, they should serve at least 75% of their term, and officers should be paid more. (9 RT 1681.) He explained that when criminals appeal their own cases they spendtheir timein the library; he believed the appeals should be completed within a reasonable time. (9 RT 1682.) Questioning by appellant’s counsel produced the following colloquy: Q: If it’s proved to you beyond a reasonable doubt, just assume it has been for the purposesofthis question, that a person 42 deliberately planned to kidnap, rob someone during that robbery and kidnapping,and theyintentionally killed somebody,okay, a willful, deliberate act, would you be leaning toward the death penalty? A: Yes. Q: Would you be leaning strongly toward the death penalty under those circumstances? A: Under those circumstances,yes. Q: In your mind, would the death penalty, would your gut reaction to that factual situation be pretty much the death penalty? A: To that situation explained, yes. Q: So to that extent, if it was proved to you that the person planned the robbery, planned the kidnap and deliberately did that, deliberately killed a person with premeditation, deliberation, planned the whole thing, deliberately did everything, your gut reaction is the death penalty? A: Yes. Q: Andthat would be pretty much automatic, an automatic reaction? A: Not automatic, I would say I lean towardsthat. Q: You would be what, 95 percent there at that point? A: Oh, percentages. Yeah, about there, I meanif it goes that far, whatever is premeditated, they thought about every single thing, whether someonediedornot, it didn’t matter to them, then yes. (9 RT 1683-1684.) The defense challenged for cause, arguing Juror 049614 “appears to be ADP” (automatic death penalty). The prosecution pointed out that Juror 049614 actually stated that he would lean toward the death penalty under 43 the very limited circumstances given, but that it was not automatic. (9 RT 1685.) 2. Juror 048108 Juror 048108 had heard about the case from the newspaper and television, but could set aside what he had heard and judgethe case solely on the evidence presented in court. (6 RT 1153.) Based on what he knew about the case, he believed that the defendants were guilty of something. (6 RT 1153-1154.) He could set aside this sentiment, too. He would have no problem presuming the defendants innocent. (6 RT 1154.) He also understood that the defendants did not have to prove anything, but that the prosecutor must prove guilt. (6 RT 1154-1155.) As for penalty, Juror 048108 could impose the death penalty in an appropriate case. (6 RT 1155.) He would not automatically vote for either penalty, but “would be inclined to base [his decision] on all of the evidence presented.” Even if he concluded that the murder was planned,deliberate, and premeditated, he would not automatically vote for death but “base [his decision] on the weight of the evidence.” (6 RT 1157.) Appellant’s counsel challenged the juror on the publicity issue, Stroder’s counsel objected, and the court denied the challenge. (6 RT 1161-1162.) Appellant’s counsel later used this juror as an example of one he would have excused had he not exhausted his peremptory challenges. (11 RT 1192-1194.) 3. Juror 047328 Juror 047328 had heard nothing about the case. She believed in the death penalty but did not believe that it should be imposedin every case. (4 RT 698.) It would depend on the facts and circumstances. “It will all depend on whatI hear throughoutthe trial.” (4 RT 699.) The following colloquy between appellant’s counsel and Juror 047328 occurred: 44 Q: Ifit were proved to you that there was deliberate, intentional killing, someone actually shot somebody, intended to doit, killed that person; would you feel under those circumstances the death penalty should be automatic in your mind; person took a life, therefore their life should be taken? A: I would probably tend to go into that direction but I can’t say that I would for sure say they should be put to death. [9]... [4] Q: All right. If it were proved to you that that wasin fact the circumstances, the person intentionally killed another person, would you automatically exclude life in prison without the possibility of parole? A: No. Q: Can you imagine a set of circumstances where there was an intentional killing, maybe killed another person, intended to do it, but you could find life without parole? A: Yes, I could think of a few things. (4 RT 700-701.) Juror 047328 also said that the backgrounds ofthe individuals would be relevant to her sentencing decision. (4 RT 701.) Appellant’s counsel challenged Juror 047328 “in that she indicated that she would lean towards the death penalty. I make this in order to protect the record.” (4 RT 703.) 4. Juror 048382 Juror 048382 had read about the case in the newspaper and formed the opinion that appellant was guilty of something, although he could set the publicity aside and judge the case based solely on whathe heard in the courtroom. Healso understoodthat he had to presume the defendants innocent. (4 RT 706.) As for penalty, Juror 048382 thought the death penalty was the right sentence for certain crimes. (4 RT 707.) When asked by the court whether he would automatically impose the death penalty upon a guilty verdict and true findings as to the special circumstances, Juror 048382 answered, 45 I feel you would have to considerall the evidence because you know it would have to be something pretty cold hearted, ruthless, to impose the death penalty in my ownfeeling. (4 RT 708.) When asked if he would automatically impose the death penalty if the killing was found to be deliberate, premeditated, cold blooded murder, he answered, I think I would haveto considerall of the facts. I don’t think you could automatically just impose death on somebody without taking everything into consideration. (4 RT 709-710.) The following exchange occurred between appellant’s counsel and Juror 048382: Q: Okay. Nowatthe time that you heard the publicity, did the fact you heard it tend to make you angry, upset, outraged over the crime? A: Overthe fact that she was murdered,yes. Q: Did you feel some kind of morally emotional indignation over the fact that that happenedorat least you heard what happened? A: Yes. Q: As you look at [appellant] now, do youstill feel he’s guilty of something? .. . [] A: Of something? Q: Yes? A: In my opinion,yes.. . [{] Q: Do you feel that as you sit there now because you have a feeling that he’s guilty of something, this may tend to make you lean towards the prosecution? A: Notatall. 46 Q: Doyou think in judging any facts in this case you think the fact that you feel he’s guilty of something, may make you judge that fact against [appellant]? A: No, I don’t think I would have a problem starting at ground level, just starting you know,like nothing happened. [{] .. . [{] Q: Do you think that the fact you believe that [appellant] is guilty of something, base[d] upon publicity, may affect you in some wayin either determining the facts or penalty in this case? A: No, I don’t think so. I think the facts would speak for themselves. Q: Do you think that [appellant] might have to prove some things to you before say you could find him notguilty in this case, because you feel that he’s guilty of something? A: I think he has to be proven guilty, not proven notguilty. Q: Do you think that because you feel that he’s guilty of something, this may tend to make you lean towards the death penalty in this case? A: Not atall. Q: You are not absolutely in favor of the death penalty underall circumstances? A: No. Q: Only under circumstances where you feel it’s appropriate;1s that correct? A: Right. Q: Do youfeel if someone deliberately kills another person, that’s automatically the death penalty? A: No, it depends on the circumstances. (4 RT 709-711.) The defense challenged Juror 048382. (4 RT 713.) 47 5. Alternate Juror 048498” Alternate Juror 048498 had heard extensively about the case from both the newspaperand television. (5 RT 1047, 1051-1052.) He could set that knowledge aside, however, and judge the case solely on what was presented in court. (5 RT 1046.) In his questionnaire, he wrote that he could not answerthe questions regarding guilt because he did not have the facts. The following exchange between the court and alternate Juror 048498 occurred. A: I haven’t heard any facts. I’ve been reading “The Californian” which is whatI feel like I say I haven’t heard anything or anything offacts, just reported through “The Californian’ and on TV. I thought they were poor questions and I didn’t really write in giving an answer. I thought they were innocent or I thought that they were guilty — Q: So basically as far as you are concerned, the only — the only basis upon which you would form such an opinion would be based upon the evidence presented to you in this courtroom? A: Definitely, not something secondhand. (5 RT 1047.) Alternate Juror 048498 would presume the defendants innocent. (5 RT 1047.) As for penalty, he would impose the death penalty “in the right instance.” (5 RT 1048.) He would not automatically vote for death orlife without parole. (5 RT 1049.) If convinced that the murder wasplanned, deliberate, and premeditated, alternate Juror 048498 would lean toward the death penalty, “but [he] would be forcedto listen to the rest or the remainderof the information in the second phase.” He would not only ' Appellant mistakenly refers to this alternate as Juror 049845, whichis actually a different alternate juror. (AOB 63.) Appellant’s record citations, however, are to alternate Juror 048498, as this number correspondsto the namegivenin the record andin the juror questionnaire. (5 RT 1045; RR 116, 288.) 48 listen, however, but would also weigh and considerit before coming to any final decision. (5 RT 1050.) The defense challenged alternate Juror 048498 on the groundthat he stated he would lean toward the death penalty undera certain set of circumstances. (5 RT 1054.) 6. Prospective Juror Judith Burns Ms. Burnshad heard about the case on the radio, and knew that the victim was abducted from the Plaza and that her body was found in the Taft area. (2 RT 310-311.) Ms. Burns would not always vote to impose the death penalty, “depending on whatthe facts and circumstances surrounding the case were.” (2 RT 308.) She would take the facts into consideration. (2 RT 310.) In her questionnaire, Ms. Burns indicated that the death penalty should be used more, and that it was a waste of taxpayer money to house repeat offenders. (2 RT 311-312.) When asked whether someone should get the death penalty fora first-time murder, Ms. Burnsreplied, “I would believe that it would depend on the circumstances of how it came aboutthat they killed them.” (2 RT 312.) The following colloquy between defense counsel and Ms.Burnsoccurred: Q: If, assuming... somebodyjust killed somebodyelse, bang, you’re dead, done deliberately, could you, in your own mind, considerlife without possibility of parole, depending on the circumstances? A: I don’t believe that if it was a deliberate thing, if— you know,premeditated, deliberate, get rid of this person, I — I believe the death penalty. If it was like fooling around with a gun or something andit goes off and somebodygets-- Q: Wentoff accidentally? A: Yeah. []..- [9] Q: You’re sitting in a case where you have heard the evidence and you’re convinced beyond a reasonable doubt that somebody 49 went out and shot somebody down,killed them deliberately. Would yourreaction be that person must die? A: I think that it would depend onthe facts surrounding why and whatwent on. Q: All right. So just because it was a deliberate killing does not mean that you would automatically vote for the death penalty? A: I don’t think so. Q: Underthat situation, you could considerlife without possibility of parole? A: Yeah. Leaning toward death in a situation like that? More so, yes. I don’t like the life imprisonment. You don’t like it because? ry O F : If it was myself, I would rather not be hereat all than to be caged up and notbe able to enjoy life, you know,see the sun and do what I wanted to do when I wantedto do it. Q: So just from a personal standpoint, you would feel that the death penalty would bebetter than sitting aroundin prison until you die? A: Right. Q: That would influence how you would decide penalty in this case? A: I think that it probably would. Q: So you would then automatically lean toward death in a case where you have the two choices? A: Probably. Q: Because of you feelings about sitting around in prison for the rest of yourlife? A: I believe so. 50 (2 RT 312-314.) Ms.Burnsalso thought that, because the police technology prevented them from making many mistakesin tracing people, appellant was probably guilty of something, and just by being there, maybe had onestrike against him. (2 RT 315-316.) When questioned by the prosecutor, the following occurred. Q: Doyou feel as you sit there now that you are not going to make meprove him guilty, that you want to go back there and find him guilty, regardless of how muchevidencethat I show you? A: No. I want the information that is going to tell me yes or no. Q: Okay. Andso if I put on witnesses and I show you some physical evidence and I argue to you that he’s guilty, and you felt that the evidence that I have given you is not enough to prove to you beyond a reasonable doubtthat he’s guilty, would you go in the jury room and vote “not guilty?” A: Yes. Q: Andin spite of the fact that he has been arrested andin spite of the fact that he’s sitting here? A: Yes. (2 RT 319.) Under further questioning by defense counsel, Ms. Burnsreiterated: Well, if the facts are there and they are good facts that prove that he is guilty, then I can judge that way. If the facts are there and there is not enough that don’t — that doesn’t show that he’s guilty, I can -- believe that I can vote “not guilty,” also. (2 RT 320.) Ms. Burns worked with the Kern County Sheriff's Search and Rescue whose job wasto find lost people and to administerfirst aid. (2 RT 322.) Her job gave her knowledge of the Sheriff's technical equipment used for 51 tracking. (2 RT 2 RT 322-323.) Ms. Burn did not believe that her involvementwith the Sheriff's Department had any bearing onthe issue of guilt. And, she agreedthat starting out with the presumption of innocence and then going forward was the appropriate way to proceed. (2 RT 323.) Finally, Ms. Burnsstill believed that the defendants must be guilty of something or they would not be in court. When asked whether there was anything the defense could do to changethat, she replied, “Well, you know, I don’t know. The facts of the case — I mean, I — like I said, I could vote either direction.” (2 RT 324.) Appellant challenged for cause on two bases. First, he argued that Ms. Burns appeared to be “ADP, automatic death penalty.” Second, appellant argued that due to publicity on the case, Ms. Burns had “a fixation about the guilt of the defendants” in that she indicated that appellant was guilty of something despite questioning byall parties. In rejecting appellant’s challenge, the court stated: All right. You know,I'll be honest with you, I don’t think thatI should grant it. I think that she has indicated that she would not automatically vote for death, that should be based on the circumstancesof the case. [{]. As far as her feelings regarding the defendants having been guilty of something, she did indicate that she would base her decision in that regard on the evidence presentedto her. (2 RT 325-326.) Appellant exercised a peremptory challenge to excuse Ms. Burns. (11 RT 2079.) 7. Prospective Juror Mary Whitten Ms. Whitten had read and heard about the case and had formed an opinion aboutit. (3 RT 386.) When questioned by the court, she thought that she could set aside what she had read and heard and judge the case fairly and impartially. 52 Q: You think you could, okay. [§] In order to do that, you would haveto set aside any preconceived notions you have aboutthis case. A: Okay. Q: You would have to presume the defendants are not guilty at this point. [§] Can you do that? A: I think so, yes. Q: You think so. [{] Do you have any reservations about that? Anything you wantto talk to us about? A: No. (3 RT 387-388.) Whenthe court asked if Ms. Whitten would automatically vote for the death penalty, she replied, “I think I would have to hear and weighit out.” (3 RT 389.) Under questioning by the prosecutor, Ms. Whitten agreed to keep and open mind andconsider the death penalty as a possible sentence for either or both of the defendants. (3 RT 390.) Under questioning by Stroder’s counsel, Ms. Whitten admitted that whenshefirst heard about the case, she formed an opinionthat the defendants were guilty. (3 RT 392.) The following exchanged then occurred: Q: And then since that time you have changed that opinion,is that what you’re telling me? A: I formed an opinion of what I read and heard and| think time has gone by and I wasn’t there, obviously, and so maybe not completely changed,no. Q: Okay, so youstill have a feeling of probably guilty, right? A: Right. Q: And that’s probably the way you are goingto start this trial out, right? 53 A: I can’t say that I will start that way, no. Q: Well, at least that’s the way you feel right now? A: Right this minute, no. Q: Is that a no or a yes? A: No. Q: You feel that they’re — you feel they’re presumed innocentat this present time? A: Right. (3 RT 392-393.) Appellant’s counsel expressed his concern that Ms. Whitten hadfelt appellant was guilty the previous week, and asked, “Do I understand you or your statement now is that you no longerfeel he’s guilty?” Ms. Whitten replied, “I think I would have to hear the evidence or yourside orhis side. I think right this minute I could probably say yeshe is.” (3 RT 394.) Andlater, the following exchangetook place. Q: Now,is there anything happening or happened between Thursdayof last week and today that would change your mind that he was,in fact, not guilty? A: I would hopeif I weresitting in his position that someone would think I was not guilty and maybe wejust needto look at both sides and then form an opinion. Q: Did you have those thoughts when youfilled out the questionnaire, is that something that’s cometo yousince then? A: I probably did, but I felt that I had to answerit exactly how I felt at that moment. Q: And yourfeeling still is that he is guilty? A: I would think so, yes. (3 RT 396.) 54 Ms. Whitten believed that neither what she knew from the publicity about the case northe fact that she knew relative of Diana would affect how she viewed the facts. (3 RT 397.) When asked whetherthe publicity and herfeeling that appellant was guilty would affect what penalty she would impose, Ms. Whitten replied, “I still feel I have to hear everything before I can form that or imposethat penalty.” (3 RT 397-398.) In her questionnaire, Ms. Whitten indicated thatlife without the possibility of parole should be the sentence. When asked whether appellant should be put to death based on what she knew, Ms. Whitten answered,“Without hearing anything else, I don’t think I can makethat decision.” (3 RT 398.) Ms. Whitten stated that if the evidence showedthat appellant deliberately killed Diana, he should die. (3 RT 398.) She agreed with counsel that, based on what she knew,she was leaning toward the death penalty, which she believed was too seldom imposed. (3 RT 399.) Appellant challenged Ms. Whitten as “a classical ADP.” The prosecution objected, noting: The fact that she might lean toward the death penalty does not mean she would automatically impose the death penalty. In fact, whenshefilled out her questionnaire she stated she felt the appropriate penalty waslife in prison without the possibility of parole andI think it’s obvious that she’s somebody who would listen to the evidence, which she indicated a numberoftimes, and she would decide whatshefeels is the appropriate penalty. (3 RT 400.) Stroder’s counsel joined in the challenge noting Ms. Whitten’s acknowledgmentof an extreme amountof publicity and the fact that she knew and worked with the prosecutor’s mother. Appellant’s counsel also suspected that Ms. Whitten was not being completely candid with her answers. (3 RT 401.) The prosecutor responded to both counsel. I think a numberofjurors who have comein here have indicated that from what they heard in the newspaper,at that point in time 55 they formed an opinion that the defendants were guilty. [{]] The questionis, if she sits as a juror, can sheset that aside. I disagree with [appellant’s counsel] that she’s being less candid with us. I think what happened is whenshefilled out the questionnaire last week she was thinking about what she heard at the time she heardit and shefelt that they were guilty. Now she’s placing herself in the role of a juror. [§] You explain to her that she hasto set that aside and she’s saying, “I can set that aside.” (3 RT 402.) The court denied the challenge and the defense exercised a peremptory challenge to excuse Ms. Whitten. (3 RT 402; 11 RT 2078.) 8. Prospective Juror Edith Sanford Ms.Sanford had heard about the case from the newspaper and television. (5 RT 1027.) She could base her decision solely on what was presented in court. She did not“really trust the newspaperstuff that much, sometimes they kind of shadow things.” (5 RT 1028.) She could presume the defendants innocent, and she would not use what she had heard in the mediatofill in evidentiary gaps if the prosecution fails to prove its case. (5 RT 1029-1030.) On her questionnaire, she indicated that, based on media reports, she felt the defendants were guilty as charged and guilty of something. She stated that she could set those opinions aside and presume the defendants not guilty of the charges. (5 RT 1030.) Asfor the death penalty, Ms. Sanford believed it was the law and “something we have to do.” If the facts and circumstances warrantedit, she could impose death in this case. (5 RT 1031.) She would not automatically opt for either penalty because “it’s something you would have to determine after all the evidenceis in.” (5 RT 1032-1033.) This attitude also applied even if the killing were shownto be planned, deliberate, and premeditated. (5 RT 1033.) Underquestioning by appellant’s counsel, the following exchange occurred: 56 Q: As yousit there now, do you have an opinionthat the defendantis guilty? A: No, I don’t. Q: What happened to yourprior opinion? A: Well, it’s been a while back and I haven’t heard all those things that happened. They could be guilty, maybe they aren’t. I don’t know. Q: Now,when youfilled out the questionnaire back on,I believe, the 11th of this month, you put downthat they are guilty or [appellant] was guilty? A: From what I had known,yes. Q: Has something changed in your mind from the time you signed this questionnaire until the time you cameto court? [{] .. [4] A: I was just going on when I wasfilling that out, I didn’t feel like I could actually put no, because I had heardstuff in the paper and their name[s] werein there, too. Q: Is it your statement now that you have no feeling that [appellant] is guilty or guilt[y] of anything? A: I would say that I would think that I probably still feel that they probablyare, but that’s at this point without hearing anything else. So I don’t know,| don’t really know. (5 RT 1035.) Upon further questioning, Ms. Sanford said that the prosecution wouldstill have to prove the case beyond a reasonable doubt, and then the following occurred. Q: Would they have less of a burden, we know what the burden is, but are they starting out kind of a leg up as far as you’re concerned, kind of 50 yards ahead of the race already because of the prior publicity? A: I would like to be able to say totally no on that, but I just can’t guarantee it. I would hopeso. 57 Q: It’s possible because of the prior publicity in your opinion,it may affect how you view the facts in this case? A: That’s hard, like I say, I would rather say no, but I really don’t know. I would hope that I would putit aside. (5 RT 1036.) Ms. Sanford said she did not think the publicity would cause her to lean toward the prosecution’s version of the facts. (5 RT 1037- 1038.) The defense challenged Ms. Sanford on the ground of publicity on the case. (5 RT 1044.) The court denied the challenge and the defense exercised a peremptory challenge to excuse Ms. Sanford. (5 RT 1044; 11 RT 2077.) 9. Prospective Juror Cleete Baron Ms. Baron had recently movedto the area and had heard nothing about the case. (4 RT 714.) She believed in the death penalty and would have no difficulty imposing it in the appropriate case. (4 RT 714-715.) She would not automatically impose the death penalty but would “certainly take into consideration the evidence.” (4 RT 715-716.) Even if the evidence showed the murderto be deliberate, intentional, cold blooded murder, Ms. Baron would not automatically impose the death penalty, but would “weigh the differences and listen to the evidence.” (4 RT 716.) Underquestioning by appellant’s counsel, Ms. Baronstated that she would lean toward the death penalty if the murder were a deliberate, premeditated, cold bloodedkilling, although she could also considerlife in prison without the possibility of parole, depending on the evidence. (4 RT 716-717.) If guilt were shown, Ms. Baron would not need to know anything else about the defendant. (4 RT 717.) She stated that she would base her decision on “the evidence given and the crime committed, regardless of how good a person they were 15 years ago.” (4 RT 718.) She would have no problem, however, following the court’s instruction to 58 consider evidence about the defendants’ lives apart from evidence of the crime. (4 RT 718-719.) She could vote for whichever penalty she considered appropriate. (4 RT 720.) The defense challenged Ms. Baron based on her statement that she would lean toward the death penalty undercertain circumstances, and the court deniedthe challenge. (4 RT 720-721.) The defense exercised a peremptory challenge to excuse Ms. Baron. (11 RT 2077.) 10. Prospective Juror Leta Russell Ms. Russell had heard about the case once on a local newscast. (6 RT 1170.) From that, she concluded appellant was guilty as charged, but stated that she would “surely try” to set that opinion aside and judge him based on the evidence presented in court. Ms. Russel! understood the presumption of innocence andthat only the prosecutor had to prove something. (6 RT 1171-1172.) Ms. Russell would be able to impose the death penalty in the appropriate case. (6 RT 1172.) She would not automatically vote for either penalty, but would “have to weighall the evidence” to decide. (6 RT 1174.) The following colloquy between Stroder’s counsel and Ms. Russell occurred: Q: But you know about yourself and I assume you know how you mentally work. Do you thinkit’s the kind of thin[g] that you’re capable of doingorin the interest of being fair to the defendant, are you thinking, “Gee, I wonder if I could be impartial on the right case,” or are you — A: I think I’m veryfair, you know, judging — well, not judging, but coming to a conclusion. Q: All I’m trying to find out is how your mind works and you’re the only one that knowsthat and I assumeif you could put aside these feelings, are you positive that you can do that, that you could put aside whatever present opinion you have 59 formed and decide this case on simply whatis presented in this courtroom? A: I will sure try. Q: But you don’t know until you actually get confronted with the situation, is that what you’re telling me? A: That’s correct. (6 RT 1178-1179.) The defense challenged Ms. Russell on the publicity issue. The court impliedly denied the challenge by instructing Ms. Russell to return on May 31st. (6 RT 1182.) The defense exercised a peremptory challenge to excuse Ms. Russell. (11 RT 2073.) 11. Prospective Juror Filemon Vigil Mr. Vigil had heard about the case from the newspaperandtelevision and, based on that publicity, he believed that the defendants were guilty of something, although he could set that belief aside and judge the case solely on the evidencepresented in court. (6 RT 1124.) He would presume the defendants innocent, and he could impose the death penalty in the appropriate case. (6 RT 1125.) Mr. Vigil said that he would not automatically vote for a penalty but “would haveto hearall of the evidence before” deciding, even if the murder were shownto be planned,deliberate, intentional and premeditated. (6 RT 1127-1128.) Under questioning by appellant’s counsel, the following exchange occurred: Q: And again, in your eyes, you know,the prosecution is going to be putting on evidence abouthe’s guilty, okay. And there may be testimony and witnesses that would support his innocence. [J] Do you think that the prosecution is going to have — havean easier time convincing you that he’s guilty than the defendant would convincing you that he’s innocent? 60 A: I really can’t make a judgmentat this time. I really don’t know,honestly. (6 RT 1130.) The defense challenged Mr. Vigil on the publicity issue and the court denied the challenge. (6 RT 1139.) The defense exercised a peremptory challenge to excuse Mr. Vigil. (11 RT 2074.) 12. Prospective Juror Gene Arbegast Mr. Arbegast had neverheard ofthe case and, therefore, had no opinion aboutit. (7 RT 1480.) Assuming appellant was found guilty, he would have to weigh all the evidence and base his opinion as to penalty on that evidence. (7 RT 1481.) He could imposethe death penalty in the appropriate case. (7 RT 1482.) Under defense questioning, however, Mr. Arbegaststated that if a person is found guilty and the choice is death or life without possibility of parole, he would choose death. (7 RT 1483- 1484.) Under prosecution questioning, however, he indicated that he would not automatically impose the death penalty upon a guilty verdictoffirst- degree murder during a robbery, but wouldlisten to all the additional evidence before deciding the penalty. (7 RT 1487-1488.) The defense challenged Mr. Arbegast as ADP. The court notedthat the prosecutor’s questions rehabilitated Mr. Arbegast and denied the challenge. (7 RT 1488-1489.) The defense exercised a peremptory challenge to excuse Mr. Arbegast. (11 RT 2072.) 13. Prospective Juror Gary McNatt Mr. McNatt had heard about the case ontelevision, but could set what he had heard aside and decide the case exclusively on the evidence presented in court. (9 RT 1734-1735.) He also indicated that he had no opinion as to guilt or innocence based on what he had heard. (9 RT 1735.) 61 He understood the presumption of innocenceand the prosecution’s burden of proof. (9 RT 1736.) As for penalty, Mr. McNatt did not believe that all murders required the death penalty, but only certain cases. (9 RT 1737.) He would not automatically vote for either penalty, but “would have to weigh the evidence.” (9 RT 1738.) If the murder were shownto be premeditated,1.e., if “they set out to commit a murder, [he] would probably haveto vote for the death penalty.” Upon further questioning by the court, however, Mr. McNatt reiterated that he “would always weigh the evidence.” (9 RT 1739.) Under questioning by the defense, Mr. McNatt reiterated both sentiments,1.e., that his gut reaction would be to vote for death and that he would “still have to weigh the evidence.” Appellant’s counsel presented an analogy wherein actor Randolph Scott asked actor John Wayne,the Marshall in a western, what he was going to do with the horse thieves he had captured. John Waynereplied, ““We’re going to give them fairtrial and hang the bastards.” Whenaskedifhe felt that way, Mr. McNatt responded, “‘No,that is not the way I feel.” (9 RT 1741.) Mr. McNatt would be interested in evidence other than crime evidence before deciding the penalty, e.g., a person’s history. (9 RT 1742.) The defense challenged Mr. McNatt on the penalty issue and the court denied the challenge. (9 RT 1744.) Appellant exercised a peremptory challenge to excuse Mr. McNatt. (11 RT 2082.) 14. Prospective Juror Jeffrey Cox Mr. Cox had heard nothing about the case. (2 RT 207.) He stated that if a person purposefully takes another’s life, he would vote for the death penalty. (2 RT 208.) On the other hand,healso stated that he would take the circumstances into consideration. (2 RT 207.) Under defense questioning, Mr. Cox stated that if the prosecution proved beyond a reasonable doubt that someone deliberately shot and killed someone, he 62 would automatically vote for the death penalty. (2 RT 208.) On the other hand, under prosecution questioning, he confirmed that he could listen to the judge and could weigh mitigating evidence and, if appropriate in this case, he could vote to imposelife without the possibility of parole. (2 RT 210-211.) Counsel challenged Mr. Cox, the prosecution objected, and the court denied the challenge. (2 RT 211-212.) The defense exercised a peremptory challenge to excuse Mr. Cox. (11 RT 2078.) B. Analysis Thestate and federal Constitutional standards for determining a capital juror’s ability to serve are the same. “Thetrial court may excuse for cause a prospective juror whose viewson the death penalty would prevent or substantially impair the performanceof that juror’s duties” in accordance with the court’s instructions and the juror’s oath. (People v. Smith (2003) 30 Cal.4th 581, 601; see Wainwright v. Witt (1985) 469 U.S. 412, 424.) California statutory law also provides, in relevantpart, that a juror may be disqualified based on a challenge for cause where the juror exhibits actual bias, 1.e., the existence of a state of mind on the part of the juror in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party. (Code Civ. Proc., § 225, subd. (b)(1)(C).) The standard of review of the court’s ruling regarding the prospective juror’s views on the death penalty is essentially the same as the standard regarding other claimsofbias. (People v. Horning (2004) 34 Cal.4th 871, 896.) In manycases, a prospective juror’s responses to questions on voir dire will be halting, equivocal, or even conflicting. Given the juror’s probable unfamiliarity with the complexity of the law, coupled with the stress and anxiety of being a prospective juror in a capital case, such equivocation should be expected. 63 (People v. Roldan (2005) 35 Cal.4th 646, 696.) Excusal is permissible only if the juror makes this position “unmistakably clear.” (Witherspoon v. Illinois (1968) 391 U.S. 510, 522.) Thetrial court’s determination of the factual question is binding on appeal if supported by substantial evidence. (People v. Moon (2005) 37 Cal.4th 1, 14.) “If the statements are consistent, the court’s ruling will be upheld if supported by substantial evidence.” (People v. Horning, supra, 34 Cal.4th at pp. 896-897.) Deferenceto the trial court is appropriate becauseit is in a position to assess the demeanorof the venire, and of the individuals who composeit, a factor of critical importance in assessing the attitude and qualifications of potential jurors. (Uttecht v. Brown (2007) 551 U.S.1, 9.) Thetrial court asked each of the four seated jurors who appellant challenges here whether, assuming guilt as to a first-degree murder committed during the course of a robbery or kidnapping, they would automatically vote for death or would vote for the appropriate penalty after weighing all the evidence. (4 RT 699, 708; 6 RT 1156-1157; 9 RT 1672- 73.) Each of these jurors responded that they would not automatically vote for the death penalty. (4 RT 699, 709; 6 RT 1157; 9 RT 1172-1173.) Juror 049614 stated that he would “weighall the evidence” and “wouldn’t automatically go one wayorthe other.” (9 RT 1673.) Juror 048108 stated that he “would be inclined to base [his decision] on all of the evidence presented.” Even if he concluded that the murder was planned,deliberate, and premeditated, he would not automatically vote for death but would “base [his decision] on the weight of the evidence.” (6 RT 1157.) In her response to counsel’s questioning, Juror 047328 stated that she could imagine a set of circumstances where, even though there was an intentional killing, she could vote for life without the possibility of parole. (4 RT 701.) Whenasked his view if the murder were found to be deliberate, premeditated, cold blooded murder, Juror 048382 stated, “I think I would 64 have to considerall of the facts. I don’t think you could automatically just impose death on somebody without taking everything into consideration.” (4 RT 709-710.) Moreover, the three jurors who were exposed to publicity assured the court that they could set aside what they had learned about the case, and also their feeling that appellant was guilty of something, and judgethe case solely on the evidence presented in court. (4 RT 704; 6 RT 1154; 9 RT 1669.) The three jurors asked about the presumption of innocence indicated they could presumethe defendants’ innocent until the prosecution proved them guilty beyond a reasonable doubt. (4 RT 706-707; 6 RT 1154- 1155; 9 RT 1669-1670.) The record adequately supports the court’s retention of these four jurors. By contrast, the court granted challenges to jurors whose views on the death penalty would have prevented or substantially impaired the performanceoftheir duties in accordance with the court’s instructions and the juror’s oath. (People v. Smith, supra, 30 Cal.4th at p. 601; see Wainwright v. Witt, supra, 469 U.S. at p. 424.) For example, prospective juror Mr. Easter stated that, based on what he knewor thought he knew,if the defendants were found guilty, he would automatically vote for the death penalty. (2 RT 176.) Appellant challenged for cause, the prosecution did not object, and the court excused him. (2 RT 177.) Similarly, prospective juror Ms. Waldenfelt “pretty strong” about the death penalty. (2 RT 343- 344.) In the case of murder, she believed in an eye for an eye, a tooth for a tooth, and would alwaysvote for the death penalty. (2 RT 344.) Both defense counsels challenged her and the court excused her. (2 RT 345- 346.) In some cases, based on answers given in voir dire, the court assumed a defense challenge and no prosecution objection and released the prospective juror: Ms. Whitely -- based on the publicity and what she knew 65 aboutthe case, she felt that appellant was guilty and should get the death penalty. When asked whether she would “pretty automatically” vote forit, she replied, “Yes” (2 RT 332-334). Given his military background, Mr. Mosleystated that he would lean towards the prosecution. The court assumed there would be a challenge and excused him. (4 RT 743, 748.) Still others were excused for cause for various reasons: Mr. Meyer-- because the defendants would have to prove somebodyelse guilty before he’d believe them innocent (2 RT 307); Ms. Pruett would ignore penalty phase evidence and imposedeath (4 RT 755); Mr. Terce would always and automatically vote for death on first-degree murder, and probably for death for robbery (3 RT 541); and Mr. Sacksteder — whenaskediffirst-degree murder would result in his automatic vote for the death penalty, he stated, “I don’t see why not.” (3 RT 439.) When asked whether putting someone to death would act as a deterrent for others, he replied, “Not necessarily for other people, but sure will cure him” (3 RT 439-440). The court excused some prospective jurors because they answered that they could not set aside the publicity and fairly judge the case on evidence presented in court, e.g., Ms. Okuji (4 RT 731), Ms. Trigueiro (4 RT 750), and Ms. Levan (4 RT 818-822). Some prospective jurors could not impose the death penalty for any reason, e.g., Mr. Munoz (2 RT 237, 240), Ms. Ryan (2 RT 275-277), and Mr. Estrada (3 RT 524-530). The court excused these people, too. Asfor the alternate juror and the nine prospective jurors appellant contends should have been dismissed for cause, they could not have possibly affected the jury’s fairness because they did notsit on the jury." '? Evenif these nine prospective jurors had sat on the jury, however, as noted in ArgumentI. above,all of them stated that they wouldlisten to all the evidence presented in court before making a decision, and they (continued...) 66 (See People v. Yeoman (2003) 31 Cal.4th 93, 114.) The harm to appellant, if any, was in being required to use peremptory challenges to cure what he perceived asthetrial court’s error, thereby reducing the numberavailable to him later in the trial. (See ibid.; see also People v. Boyette (2002) 29 Cal.4th 381,418.) But the loss of a peremptory challenge does not constitute a violation of the constitutional right to an impartial jury. (See Ross v. Oklahoma (1988) 487 U.S. 81, 88; see also People v. Avila (2006) 38 Cal.4th 491, 540.) Appellant argues that “the trial court’s errors violated [his] federal due process liberty interest in using the full number of challenges available under California law. (Hicks v. Oklahoma (1980) 447 U.S. 343, 346.)” (AOB 69.) This Court has resolved this issue: Defendantreceived and exercised the 20 peremptory challenges allotted to him understate law. (Citation.) State law required him to use those peremptories to cure any erroneous denials of challenges for cause. (Citations.) Defendant receivedall that was due him understate law. (People v. Blair (2005) 36 Cal.4th 686, 744.) In sum,the trial court’s denial of appellant’s 14 challenges for cause did not violate his constitutional rights. Accordingly, this claim should be denied. Ill. THE TRIAL COURT’S DISMISSAL OF PROSPECTIVE JURORJAMES HARMERDID NOT VIOLATE APPELLANT?’S CONSTITUTIONAL RIGHTS REQUIRING REVERSAL OF THE DEATH JUDGMENT. Appellant contendsthat the trial court erroneously excused prospective juror James Harmerbased upon hisreligious beliefs. (AOB 71.) Respondent disagrees. (...continued) would not automatically vote one wayor the other. (2 RT 210-211, 320, 323-324, 389-390, 397-398; 4 RT 715-716; 5 RT 1032-1033; 6 RT 1127- 1128, 1174; 7 RT 1481, 1487-1488; 9 RT 1738-1739.) 67 A. Relevant Proceedings Below Mr. Harmerindicated on his questionnaire, and confirmed under court voir dire, that he had heard aboutthe case from print media andtelevision, he knew the defendants’ names, and he recalled they had kidnapped the victim near Taft, murdered her, taken her car and bank card, andleft the state. (11 JCT 2984-2985; 6 RT 1086-1087.) On his questionnaire, Mr. Harmeransweredthat he believed the defendants to be guilty as charged and guilty of something. As for their penalty, he selected “No”as to death for both defendants and left blank the option for life without the possibility of parole. (11 JCT 2985-2986.) As for moralor religious beliefs that would affect his ability to sit in judgment of another, Mr. Harmer wrote, “The Bible tells us not to Judge.” The Bible and Christian-authored books were amongthose heliked to read. (11 JCT 2987-2988.) He also wrote that he had neverserved on a jury before and “would prefer not to” serve on this jury. (11 JCT 2993.) Mr. Harmerwasan associate pastor of a church and, as such, had mixed emotions about the case. (6 RT 1088-1089.) When askedhis feelings about the death penalty on his questionnaire, Mr. Harmerstated, “I think ifit’s in place then it[’]s up to the Court[]s to do as the[y] seefit.” (11 JCT 3001.) He also marked on the questionnaire that he did not believe the death penalty was wrong for any reason including religious, moral or ethical beliefs. (11 JCT 3002.) Mr. Harmeralso noted that he would have no difficulty imposing the death penalty in an appropriate case. (11 JCT 3002-3003.) He did not belong to any organizations that opposed or favored the death penalty and he would haveno trouble imposingit in the appropriate case where the facts and circumstances warranted it. (11 JCT 3002-3003.) Whenquestioned by the court about his ability to set aside what he had heard and judgethe case solely on courtroom evidence, Mr. Harmer 68 replied, “I am notsure,to tell you the truth, to be honest with you, I’m not sure. You know, | have mixed emotions aboutit.” (6 RT 1088.) Under later defense questioning, he also admitted that he had opinions aboutthe case that “could be wrong” and that he “could probably separate”his opinions andbasehis decision on the evidence. (6 RT 1094-1095.) Mr. Harmeradmitted that he would havedifficulty sitting as a juror because ofhis religious belief that he was not to judge others. He admitted that it “would be hard”to ignore his religious beliefs and remain on the jury. “As far as I’m concerned, I would havea hard time standing in judgment of somebody, to be honest with you,to tell you the truth.” (6 RT 1089.) The court asked, “And in order to do that, would you, in fact, need to or have to ignore religious beliefs that you have?” Mr. Harmerreplied, “Yes, sir.” The prosecution challenged Mr. Harmerfor cause and defense voir dire commenced. Underquestioning by appellant’s counsel, Mr. Harmer agreed that he would apply the death penalty, if warranted, with a heavy heart becausethat wasthe law of the land. (6 RT 1091.) Upon further defense questioning, however, Mr. Harmerindicated that he was unsure whether he could vote for death, and even intimated that he might be the lone holdout who would say no to death. I may be the one that would be off balance to that. I would probably say no and everybodyelse would sayyes, if that was the case... . | don’t know. I would haveto cross that bridge. It is a hard decision. Matthew, quotingit, “Judge not, lest you be judged.” That is the whole thing. I don’t know if I could say yes, death (6 RT 1092.) Whenpressed further, he repeated several times that he wouldtry to pass judgmentbutthat it would be the hardest thing he would ever have to do. (6 RT 1093-1094.) The following occurred between Stroder’s counsel and Mr. Harmer: 69 Q: Now,if you determined that the law may be in someconflict with what yourfeelings are, would you have anytrouble following those beliefs and deciding guilt and innocencein this case? A: That is something that I would have to work through. I can’t answerthat now because I haven’t see the full scale of how, you know.It is like anythingelse, it takes time, you know,if— if I had to separateit, I believe that I could, because I’m opentoit. I’m not going to say, you know,that I couldn’t because I am open to pushing it a — pushingit aside if that is the case that — if that is what they want meto do, I will do that. (6 RT 1096-1097.) When questioned again by the court, Mr. Harmer admitted that were he selected to serve and forced to render any judgment, he would haveto ask Godfor forgiveness afterwards. The court asked, “In essence, you would, in your heart, feel as though you had violated your religious beliefs?” Mr. Harmerreplied, “Yes, sir.” The court stated, “I think thatis cause, counsel,” and excused Mr. Harmer, over defense objection. (6 RT 1098-1100.) B. Applicable Law and Analysis Asstated in ArgumentI., the standard for excusing a prospective juror for cause in a capital case is whether the juror’s views on the death penalty would preventor substantially impair the performanceofthat juror’s duties in accordance with the court’s instructions and the juror’s oath. (Peoplev. Smith, supra, 30 Cal.4th at p. 601; see Wainwright v. Witt, supra, 469 U.S. at p. 424.) The samestandard applies under the California Constitution. (See, e.g., People v. Ghent (1987) 43 Cal.3d 739, 767 [adopting the Witt standard].) “Assessing the qualifications ofjurors challenged for cause is a matter falling within the broad discretion of the trial court. [Citation.]” (People v. Weaver, supra, 26 Cal.4th at p. 910.) 70 In according deference on appeal to trial court rulings on motions to exclude for cause, appellate courts recognize that a trial judge who observesand speaks with a prospective juror and hears that person’s responses (noting, amongotherthings, the person’s tone of voice, apparent level of confidence, and demeanor), gleans valuable information that simply does not appearon the record. [Citation.] (People v. Stewart (2004) 33 Cal.4th 425, 451.).) [T]he mannerofthe juror while testifying is oftentimes more indicative of the real character of his [or her] opinion than his [or her] words. That is seen below,but cannot always be spread upon the record. Care should, therefore, be taken in the reviewing court not to reverse the ruling below upon such a question of fact, except in a clear case. (Wainwright v. Witt, supra, 469 U.S.at p. 428, fn. 9.) Appellant’s case is similar to a capital case this Court recently decided. In People v. Martinez (2009) 47 Cal.4th 399 (Martinez): Prospective Juror B.S. stated she was strongly against” the death penalty, but she also checked a box indicating she did not “hold any religious, moral feelings or philosophical principles that would affect [her] ability to vote for the death penaltyin this case”... At the same time, she addedthat she could “see some circumstances where society would haveto put an end to someone'slife.” (/d. at p. 427.) When asked about the “bottom line” on her ability to judge, she replied, I have somevery strong viewsagainst the death penalty. And I feel I could listen to the evidence and make a determination based on the evidence. It’s not something that I would look forward to doing, but I feel I could doit. (Id. at p. 428.) The following then occurred: Trial court: Now bear in mind the decision the jury would be asked to make hereis not a decision by society,it’s a decision that you personally would have to make. So my question[is] do you... realistically and practically feel that you could ever vote 71 for the death penalty, you yourself personally vote for the death penalty?” B.S.: I think I probably could if the evidence warrantedit. I would not do so lightly. And I would be moreinclined notto. ([bid.) In Martinez, as here, the defense pointed out that the prospective juror “did assert on several occasionsthat [s]he could impose a sentence of death.” (/bid.) Whenthe prosecutor asked whetherthere wasa realistic possibility she could “vote to end [defendant’s] life,” B.S. respondedthat“I’d [say] that I could do it if I had to do it.” Her explanation introduced some ambiguity into her response, however: “Even though I am philosophically opposed to the death—I’m strongly opposed to the death penalty—I also have thought long and hard about this during these last weeks andI would rather have me on a jury than somebody whohas no opinion or somebody whois vociferously for the death penalty.” ([bid.) Whenthe prosecutor asked B.S. which circumstances might lead her to vote for the death penalty, she gave “particularly heinous” crimes and recidivism as examples. (Martinez, supra, at p. 428.) The prosecutor continued: “Just knowing yourself ... and the fact that you feel that the death penalty serves no purpose other than makingkillers out of usall, ... is it realistic that you would vote for the death penalty in this case that we have here?” B.S. responded:“It is not realistic that I would, butit is realistic that I can, that I could. I’m sorry, I'm a writer.” (Martinez, supra, at p. 429.) The prosecutor asked:“[I]s this an appropriate case for you as far as the nature of this case [and] the imposition of the death penalty ... given what you have written in your questionnaire?” B.S. responded: I think I can hear the evidence and I think I can make a good decision according to the law. I am not looking to be onthis 72 jury. I don’t especially wantto, but if I am chosen for the jury I think I would make a gooddecision. (/bid.) The prosecution in Martinez challenged B.S. for cause. (Martinez, supra, at p. 429.) The court expressed “a definite impression that she would be unable to fulfill and impartially apply the law,” and “a definite impression based on her questionnaire and based on what she said here in court that her views are such that [they] would prevent or substantial[ly] impair her performance [of her] duties in accordance with ... instructions [and] ... her oath. ...” (/d. at p. 430.) In upholdingthetrial court’s ruling, this Court reasoned as follows: Thetrial court’s impression of the prospective juror’s true state of mindis entitled to deference under the circumstances apparentin the present case. This court has considered the extensive transcript documenting the voir dire of B.S. Thetrial court “supervised a diligent and thoughtful voir dire” (Uttechtv. Brown, supra, 555 U.S. at p. 20), taking pains to state and apply the correct standard and to explain the overall impressionit received from the entire voir dire of B.S. As required by our decisions, the court “engage[d] in a conscientious attempt to determine [this] prospective juror’s views regarding capital punishment ....” (People v. Wilson, supra, 44 Cal.4th at p. 779.) Although the juror declared a theoretical possibility that she could vote for the penalty of death, the court legitimately could infer from the strength of the juror’s views, her verbal fencing with the prosecutor, and her equivocal statements, that she was substantially impaired in her ability to perform her duties as a juror. ([bid.) Here, the prosecution challenged Mr. Harmer. (6 RT 1090.) The defense objected. “He may bereluctant, but he indicated that he would go ahead and do what he hadto do in respect to judging his fellow man and 73 also in respect to the death penalty.” (6 RT 1099-1100.) The trial court responded: I don’t know that the law would require that someoneviolate a precept oftheir religious beliefs, even though this man presumably waswilling to do that if I ordered him to dothat, but — but I think thatit is — I think that it is cause. (6 RT 1100.) Giventhis record,it is easy to see how here,as in Martinez, thetrial court could form a definite impression of Mr. Harmer, based on his answers on the questionnaire and his contradictory and equivocal responses during voir dire, that he would, in fact, not vote for the death penalty because of his religious convictions. Thetrial court “supervised a diligent and thoughtful voir dire.” (Uttecht v. Brown, supra, 555 U.S.at p. 20.) Thus, as in Martinez, “[t]he trial court’s impression of the prospective juror’s true state of mindis entitled to deference under the circumstances apparentin the present case.” (Martinez, supra, at p. 430.) Accordingly, this Court should reject appellant’s claim. IV. THE TRIAL COURT PROPERLY ADMITTED REDACTED VERSIONS OF APPELLANT’S CONFESSIONS AND DENIED HIS MOTIONS FOR SEVERANCE, SEPARATE JURIES, AND ADMISSION OF THE FULL CONFESSIONS AT PENALTY PHASE. ANY ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT. Appellant contends that the trial court committed reversible error whenit admitted redacted versions of his confessions, and denied his motions for severance, separate juries, and admission ofhis full confessions 74 at the penalty phase.'* (AOB 83.) Respondent disagrees. Any error was harmless. A. Relevant Record After his arrest, appellant gave two taped statements implicating himself and Stroder in the crimes charged. (17 RT 2994, 3011.) Stroder made nostatementsto police. On March 3, 1995, beforetrial, the prosecution proffered redacted versions of appellant’s confessions in the form of scripted questions to be posed to, and answersto be provided by, Detective Giuffre. (IV CT 1207- 1210.) All references to Stroder were redacted. Appellant objected and made several related motions. First, he objected to the prosecutor’s redacted versions“basically ‘because it ain’t what happened.’ . . . It is not the facts and circumstancesas the crime actually occurred.” He argued that undersection 190.3, the jury may consider the facts and circumstances of the crimes in decidinglife or death.'? (IV CT 1211.) Appellant arguedthat by completely excluding any mention of Stroder, the redacted versions made him appear more culpable. (IV CT 1211-1212.) Changing “we”to “I” made it appear as though appellant alone planned the robbery and got Diana into the car, whereas the actual confessions suggests otherwise. (IV CT 1218.) So the sum and substance of both these statements is that it creates a different set of circumstances for which the jury can determine the defendant was more culpable than wasactually 4 Respondenttreats the motions to sever penalty and to use separate penalty juries as one in the sameissue. '> Section 190.3 provides in relevantpart: In determining the penalty, the trier of fact shall take into account any of the following factors if relevant: (a) The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true pursuant to Section 190.1. 75 reflected in his statement. Andthis is an element they can use to determine whetherhelives ordies. Andthe prosecution can use this statement to argue this man should die because notonly is he legally culpable, but he is morally culpable because it appears that he was the one who originated the crime and consummatedthe crimeall by his lonesome. Thatis not the factualsituation. (IV CT 1219.) Appellant further argued that the redactions completely eliminated the emotional relationship between appellant and Stroder. (IV CT 1212.) Appellant said that he intended to call Dr. Byrom to the standto attest to “appellant’s “savior complex” towards women,and to the fact that appellant is not violent except possibly when emotionally involved with a woman. Eliminating Stroder from the facts and circumstancesof the crimes, he argued, would render Dr. Byrom’s testimony nonsensical. (IV CT 1213- 1214.) The prosecutor responded: But as to how the robbery occurred, how she was killed, where they went, what banks they went to, everything is exactly howit happened, minus Ms.Stroder. (IV CT 1220.) She urged the court to look at the issue in two separate steps, in terms of guilt and penalty. She arguedthat the redaction did not prejudice appellant in the guilt phase because he acknowledgedhis conduct in the robbery, kidnapping, and murder. She reasonedthatif the jury found Stroder not guilty, then appellant would proceed to penalty alone and could introduce his entire confessions. On the other hand,if the jury found both defendants guilty, that meant the jury could not have believed appellant acted alone, thus, he would not be prejudiced. (IV CT 1223-1224.) The prosecutor argued that defense concerns could be handled by limiting instructions. Otherwise, if the defense position were correct, separatetrials 76 or separate juries would be required in every case with multiple defendants. (IV CT 1237.) The court took the matter under submission. On March 9, 1995, the court denied the defense motionsto sever and to admit the full confessions without prejudice. (IV CT 1242-1243.) On June 12, 1995, appellant renewed his objection to the redactions. (17 RT 2858, 2363.) He argued the redactions violated due process by placing “more moral responsibility on the defendant than wasreflected in the statement.” (17 RT 2863.) He argued that Stroder could keep him from introducing the full confessions at the penalty phase, thereby violating his right to counter aggravating evidence. (17 RT 2964.) Hereiterated his point regarding Dr. Byrom’s expected testimony. (17 RT 2864-2865.) He also urged the admissionofthe entire confessions under Evidence Code section 356.'° In the alternative, appellant asked for a mistrial. (17 RT 2865.) The court denied the motions. (17 RT 2866; V CT 1544.) On June 23 and 26, 1995, appellant renewed his motionsto sever the penalty trials or for mistrial; the court denied them. (VI CT 1785-1786, 1791.) The court instructed the jury generally not to consider evidence admitted against one defendant as evidence against the other, and specifically, not to consider the evidence of appellant’s statements against Stroder. (17 RT 2994-2995; 18 RT 3152; VI CT 1575-1576.) Followingtrial, appellant moved for a new penalty phasetrial based upon his previously argued points, alleging misdirection of the jury on a '© Evidence Code section 356 provides: Wherepart of an act, declaration, conversation, or writing is given in evidence by oneparty, the whole on the same subject may be inquired into by an adverse party; whena letter is read, the answer maybe given; and whena detachedact, declaration, conversation, or writing is given in evidence, any otheract, declaration, conversation, or writing whichis necessary to makeit understood mayalso be given in evidence. 77 matter of law, under section 1181, subdivision (5).'’ (VII CT 2048-2058.) The court denied the motion. (VII CT 2142.) B. Legal Framework Our Legislature has expressed a preference for joint trials. (People v. Boyde (1988) 46 Cal.3d 212, 231.) Section 1098 providesin pertinent part: When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separatetrials. The court may,in its discretion, order separate trials if, among other reasons,there is an incriminating confession by one defendantthat implicates a codefendant, or if the defendants will present conflicting defenses. (People v. Avila, supra, 38 Cal.4th at pp. 574-575; Peoplev. Massie (1967) 66 Cal.2d 899, 917.) Additionally, severance may be called for when there is a seriousrisk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from makinga reliable judgment about guilt or innocence. (Zafiro v. United States (1993) 506 U.S. 534, 539 [addressing severance under Fed. Rules Crim.Proc., rule 14, 18 U.S.C.]; People v. Coffman and Marlow, supra, 34 Cal.4th at p. 40.) A trial court’s denial of a severance motion is reviewed for abuse of discretion based on the facts as they appeared whenthe court ruled on the motion. (People v. Hardy (1992) 2 Cal.4th 86, 167.) If it is concluded that the trial court abusedits discretion, reversal is required only if it is '? Subdivision (5) of section 1181 permits the granting of a newtrial: Whenthe court has misdirected the jury in a matter of law, or has erred in the decision of any question of law arising during the course ofthe trial, and whenthe district attorney or other counsel prosecuting the case has been guilty of prejudicial misconduct during thetrial thereof before a jury. 78 reasonably probable that the defendant would have obtained a more favorable result at a separate trial. (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 41; People v. Keenan (1988) 46 Cal.3d 478, 503.) If the court’s joinder ruling was proper whenit was made, however, a judgment may be reversed only on a showingthat joinder “‘resulted in “gross unfairness” amounting to a denial of due process.” (People v. Mendoza (2000) 24 Cal.4th 130, 162.) C. Analysis Here, appellant and Stroder were charged in each count with having committed common crimes involving common events and the samevictim. (People v. Keenan, supra, 46 Cal.3d at p. 500.) The court accordingly was GO666presented with a “‘“classic case”’”for a joint trial. (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 40, quoting People v. Keenan, supra, at pp. 499-500; see also People v. Avila, supra, 38 Cal.4th at p. 575.) Appellant contends, nonetheless, that the trial court abused its discretion in denying severance because the denial resulted in the introduction of his own statements, edited under People v. Aranda (1965) 63 Cal.2d 518 (Aranda) and Bruton v. United States (1968) 391 U.S. 123 (Bruton) to remove references to his codefendant. Specifically, appellant argues that his unredacted statements distorted his role in the crimes, were admissible under Evidence Code section 356, and inaccurately portrayed him as the sole perpetrator of the crimes to which he confessed, violating his rights to due process anda fair trial. He further contendsthat the court’s denials prevented him from bringing out the omitted portions of the statements on cross-examinationunlesshetestified, violating his Fifth Amendment privilege against self-incrimination. Finally, he contends that admission of the redactions denied him the individualized sentencing determination guaranteed by the Eighth Amendmentto the United States Constitution. (AOB 83-99.) 79 Severance may be necessary when a defendant’s confession cannot be redacted to protect a codefendant’s rights without prejudicing the defendant. (Aranda, supra, 63 Cal.2d at p. 530.) A defendantis prejudiced in this context when the editing of his statement distorts his role or makes an exculpatory statement inculpatory. (People v. Douglas (1991) 234 Cal.App.3d 273, 285-287.) Although appellant’s edited statements excluded referencesto his codefendant,it is evident the jury did not believe he had acted alone,forit found Stroder guilty along with him in each crime to which he alone confessed. Moreover, the redactions did not distort appellant’s role in the crimesoralter any of his explicit admissions as to his ownactions in any material way. To be sure, some of the changes—such as changing “we”to “T’—did change the meaning of appellant’s statements and impliedly overstated his role. (See People v. Tealer (1975) 48 Cal.App.3d 598, 603- 604 & fn. 10 [changing “we”to “I” in defendant’s confession waserror because “[T]he effect of [the] modification was to throw the entire onus of the planned robbery on defendant...”]; cf. People v. Duarte (2000) 24 Cal.4th 603, 622 (conc. & dis. opn. of Baxter, J.) [statement of accomplice that was redacted to remove references to defendant impliedly overstated accomplice’s role].) Someof the redactions madeit appear that defendant acknowledged participating in conductthat he actually had attributed to Stroder, such as telling Diana to get into the car. Such instances were immaterial, however, in light of appellant’s consistent admissions in both the unredacted and the redacted versions as to acts he himself performed that constituted the elements of the charged offenses. Moreover, nothing that was omitted was exculpatory. In each of the unredacted statements appellant admitted kidnapping, robbing and personally shooting the victim. That Stroder also 80 participated in some waycould notrelieve appellant ofliability for his own criminalacts. Appellant contends that the trial court’s ruling preventing him from cross-examining witnessesas to the omitted portions ofhis statements violated section 356 of the Evidence Code. (AOB 90-92.) This provision permits the introduction of statements that are necessary for the understandingof, or to give context to, statements already introduced. (People v. Harrison (2005) 35 Cal.4th 208, 239; People v. Zapien (1993) 4 Cal.4th 929, 959.) But limits on the scope of evidence permitted under Evidence Code section 356 may be proper when,as here, inquiring into the “whole on the same subject” would violate a codefendant’s rights under Aranda or Bruton. (See People v. Ervin (2000) 22 Cal.4th 48, 87 (Ervin.) Here,the trial court did not prevent appellant from cross-examining the witnesses to bring out his own hearsay statements that exculpated him or lessened his ownrole in the crimes. For instance, appellant’s counsel reiterated on cross-examination of Detective Giuffre that appellant had not planned on killing Diana, that he had not slept for days and was a nervous wreckandcried a lot, and that the victim was a sweet girl who did not deserve to die. (17 RT 3028-3029.) Nor, as in Ervin, did the trial court prevent appellant from presenting nonhearsay testimony or evidencethat implicated his codefendant. (See Ervin, supra, 22 Cal.4th at p. 87.) Rather, the trial court precluded appellant only from bringing out his own hearsay statements that expressly inculpated Stroder. These limits were permissible notwithstanding Evidence Code section 356. Appellant claims that his case is similar to People v. Douglas, supra, 234 Cal.App.3d at page 273 (Douglas). (AOB 90-92.) While these cases share the procedural similarities appellant notes, the glaring difference is that in Douglas, the trial court failed to “first ascertain ‘if all parts of the extrajudicial statements implicating [codefendant] [could] be and [were] 81 effectively deleted without prejudice to [appellant].’” (Id. at p. 282, quoting Aranda, supra, 62 Cal.2d at p. 530,italics in original.) “Thetrial court in this case denied the motionto sever solely on the basis that the prosecuting attorney represented that the confession could and would be successfully edited.” (/d. at p. 286.) The Douglas court reasoned: [I]n our case the deletion of references to [codefendant] in appellant’s statement clearly, and inaccurately, implied that appellant admitted his involvement in conduct he had explicitly disclaimed. Appellant was then improperly prevented from presenting evidencethat his actual statement was exculpatory on major points. The prejudice to him is obvious andserious. If the court had granted the severance motion, deletions of appellant’s statement would not have been required to protect [codefendant] under Aranda/Bruton. Because the evidence of appellant’s involvementin the actual killing of Amey wasfar from overwhelming, we cannot dismissthis error as harmless. (Id. at p. 287.) Here, by contrast, both the unredacted and redacted versions of appellant’s statements were before the court, thereby allowing it to consider prejudice before ruling. (1 ECT 2-140 [People’s Exhibit Nos. 2 & 3; 2 ECT 410-424 .) Indeed, appellant’s counsel repeated his concerns of prejudice each of the many times he renewedhis motion. Moreover, nothing exculpatory was redacted and evidence of appellant’s guilt was overwhelming. Appellant contends that admission of the redacted statements violated his rights to due process and fair trial. (AOB 92-95.) Specifically, he argues that the court’s ruling prohibited him from cross-examining Detective Giuffre on facts that would have cast him in a more favorable light, especially as they pertained to the penalty phase. (AOB 94.) For instance, he notes that the prosecution usedhis flight and marriage as evidence of callousness and lack of remorse, and that he could not bring in the true reason for the Las Vegas marriage andtheir attempt to return to 82 Missouri. (AOB 93.) Appellant’s reliance on a Pennsylvania case (AOB 93), however, ignores the plain fact that none of the excluded information wasparticularly exculpatory. Also, appellant’s own regret and shock over his conduct, his prayers for Diana’s parents and empathy for them, andhis desire to “reverse time’, all expressed in emotions and with religious overtones, were before the jury for mitigation. (22 RT 3562-3563.) Moreover, his claim that they married anticipating arrest and incarceration, or his claim that he wanted to take Stroder safely to Missouri before his ownarrest, did not necessarily mean that he, too, did not wantto elude capture, his “savior complex” notwithstanding. Whatever his explanation might have been,it is certainly logical for a prosecutor to argue, and a jury to conclude, that the aim of the on-going multi-state thefts was to head home andstay free, especially since the couple wasarrested outside California. In sum, the exclusion of non-exculpatory, self-serving statements did not deprive appellant of due processora fairtrial. Appellant claimsthat the trial court’s ruling restricting him from cross-examining witnessesas to the unredactedparts of his statement unless he testified violated his Fifth Amendmentright against self-incrimination. (AOB 95-96; see United States v. Walker (1981) 652 F.2d 708, 713, quoting | Weinstein, Evidence (Ist ed. 1979) § 1106[01], pp. 106-109 [““*[FJorcing the appellant to take the stand in order to introduce the omitted exculpatory portions of [a] confession [which] is a denial of his right 999 against self-incrimination.’”].) Restricting cross-examination, however, to protect the rights of a codefendant does notviolate the Fifth or Sixth Amendmentsto the federal Constitution whenthe restriction does not materially affect the defense or when the probative value of the excluded evidenceis slight. (See U.S. v. Washington (1991) 952 F.2d 1402, 1404.) As shown above, that was the case here. 83 Lastly, appellant asserts that the joint penalty trial violated his right under the Eighth Amendmentto the United States Constitution to an individualized determination of his sentence based on his own character and background. (AOB 96-98; see Lockett v. Ohio (1978) 438 U.S. 586, 605; Woodson v. North Carolina (1976) 428 U.S. 280, 304.) Respondent disagrees. As noted above,the jury heard of appellant’s religious guilt, desire to call Diana’s father, desire to reverse time, prayer for forgiveness and general remorse. (22 RT 3562-3563.) The jury also heard from eight witnesses in the penalty phase whotestified, essentially, that appellant was warm,caring, polite, non-violent, and protective of women. (22 RT 3533- 23 RT 3595.) And, Dr. Byrom opined that appellant was not an inherently violent person and was remorseful. (23 RT 3601, 3605.) The redacted passages from appellant’s statements would have provided minimal,if any, additional mitigation to the mitigating evidence that was before the jury. Accordingly, their addition to the penalty phase would not have made a difference in the jury’s decision. Furthermore,the trial court instructed the jury: “In this case you must decide separately the question of the penalty as to each of the defendants.” (VI CT 1864; 24 RT 3855.) Appellant and Stroder were represented by separate counsel, presented their own evidence, and argued different theories of culpability, or lack thereof. Thetrial court also told the jury at the guilt phase not to consider against one defendant evidence that had been admitted only against another defendant. (VI CT 1575; 18 RT 3152-3153.) This Court has held that such instructions are adequate to ensure individualized sentencing in joint penalty trials. (People v. Taylor (2001) 26 Cal.4th 1155, 1173-1174.) Here, nothing in the record indicates the jury was unable to assess the penalty separately for each defendant. Thus, even had the jury heard appellant’s allegedly true explanation for his marriage to Stroder andtheir flight, it would not have mattered, for it already had 84 sufficient evidence of mitigation upon whichto baseits judgment. Appellant argues that had the jury heard the unredacted statements, it might have given him life without the possibility of parole, as they gave Stroder. (AOB 98.) Respondent submitsthat, in light of the fact that appellant admitted shooting Dianathree times and killing her, if the jury had heard that Stroder were more involved in the kidnapping, robbery, and murder,it would have condemnedherto death as well. No gross unfairness to defendant resulted from the joint penalty trial. Finally, assuming the court erred in admitting appellant’s redacted statement, it is well established, that Aranda/Bruton error is not reversible per se, but rather is scrutinized under the harmless-beyond-a-reasonable- doubt standard of Chapmanv. California (1967) 386 U.S. 18, 24. (People v. Anderson (1987) 43 Cal.3d 1104, 1128.) In determining whether improperly admitted evidence so prejudiced a defendant that reversal of the judgmentof conviction is required, this Court has observed that “if the properly admitted evidence is overwhelmingandthe incriminating extrajudicial statement is merely cumulative of other direct evidence, the error will be deemed harmless.” (/d. at p. 1129.) Here, evidence of appellant’s guilt was overwhelming—he admitted the crimes, and forensic and documentary evidence corroboratedhis admission with unfailing consistency and accuracy. Moreover, the redactions notwithstanding, the jury knew that Stroder provided both the car andtherifle to appellant, and that she was with him at the time oftheir arrest. Therefore, any error was harmless beyond a reasonable doubt. For these very samereasons, admitting only the redacted confessions during the penalty phase wasalso harmless beyond a reasonable doubt. Thisis especially so if one considers the additional culpability that would adhere to Stroder had the jury heard abouther detailed involvementin the crimes, 85 none of which could possibly have made appellant appear less culpable given his own admissions. Accordingly, this claim fails. V. THE TRIAL COURT DID NOT COMMIT REVERSIBLE ERRORBY FAILING TO INSTRUCT THE JURY THAT AN ACCIDENTAL ACT RESULTINGIN DEATH DURING THE COURSEOF A FELONYFAILS TO MEET THE REQUIREMENTSOF THE FELONY-MURDER SPECIAL CIRCUMSTANCES. Appellant contendsthat the trial court prejudicially erred by failing in its sua sponte duty to instruct the jury on his defense theory of an accidental shooting. He arguesthat by instructing with CALJIC No. 8.81.17, the trial court failed to direct the jury to determine whetheran accidental shooting met the felony-murderspecial circumstances. (AOB 100.) In essence, appellant challenges the special circumstance instructions as incorrect in law. Initially, appellant failed to request an instruction on accident and, therefore, has forfeited this claim. Even if reviewed, however, the claim lacks merit. A. Relevant Record Appellant told Detective Giuffre that he wanted to drop Dianaoff far enough out of town to give him time to drive away. (17 RT 2999-3000.) When Diana seemed nervous aboutthat, appellant told her “he wouldn’t leave her off somewhere whereit’s too far from a call box or a gas station or town.” (17 RT 3014.) He claimed that he did not tie her up because she might starve if undiscovered, and he worried about animals in the area. (17 RT 3015.) When Diana came aroundthe car she cameclose to him and either she struck the barrel of the rifle or he twitched, causing the first shot. He did not remember which. (17 RT 3017, 3028.) Appellant said thefirst shot was accidental, but that when Diana kept screamingin pain, he did not know what to do so he shot her again. One shot missed because he was nervous, so he shot her again. (17 RT 3002, 3017, 3028.) Appellant 86 claimed that he shot Diana more than once, while she was on the ground, because he did not want her to go through any morepain. (17 RT 3003.) In closing argumentat the guilt phase, appellant argued that the prosecution wantedthe jury to believe only those parts of his statement to police that went to guilt, and to ignore those parts that supported an accidental shooting. This, appellant claimed, was “illogical and unreasonable.” (18 RT 1230.) First ofall, the statement, the statement was that it was an accidental shooting to begin with, one, first shot was accidental. Not in felony murder, that has no relevancy but as far as premeditated deliberate murder with intent to kill, it does have an important factor. Again, keep in mindthat the first round, [appellant] said, went off because she came around, he doesn’t know whether she grabbedthe barrel, ran into the barrel or came around,the first round, he says, was accidental. (18 RT 3231.) Thefirst round, he argued, was mortal, it would have killed her. You can’t kill a person more than once. So, even if [appellant] deliberately started firing after that, he was firing into a person whowasessentially dead. (18 RT 3231.) Appellant did not request a jury instruction on accidental shooting during the jury instruction conference (17 RT 3115-18 RT 3141) or at any othertime. Appellant also argued that at the time of the shooting, the kidnapping had ceased because Diana wasoutof the car and not detained as she “was told to leave and go away.” (18 RT 3232.) Further, he argued that there was no evidence as to whetheror not the victim entered appellant’s car involuntarily. This missing information andthe fact that appellant did not hide or dispose of the body andshell casings meant that the murder wasnot plannedas the prosecution claimed. (18 RT 3232-3233.) If you’re going to commit a crimeof that magnitude[,] deliberately plan it, would you be so stupid and careless to leave 87 a bodyin plain view,leave the cartridges in plain view and not chuck that rifle? It does not speak of a plannedact, it speaks of an accidentalact, killing. (18 RT 3233-3234.) Appellant urged jurors not to believe only the parts of his statement the prosecution wanted them to believe and ignoretherest. “Tf they’re in for a penny, they’re in for a pound.” (18 RT 3235.) Thetrial court instructed the jury on the special circumstances with CALJIC No. 8.81.17, as follows: To find the special circumstance,referred to in these instructions as murder in the commission of robberyistrue,it must be proved: 1A: The murder was committed while the defendant was engaged in the commission or attempted commission of a robbery; or 1B: The murder was committed during the immediate flight after the commission of a robbery by the defendant to which the defendant was an accomplice; and 2. The murder was committed in order to carry out or advance the commission ofthe crime of robberyorto facilitate the escape there from or to avoid detection. In other words,the special circumstance referred to in these instructionsis not established if the attempted robbery was merely incidental to the commission of the murder. (18 RT 3189; VI CT 1654.) Appellant did not object to this instruction or request modification or amplification. The court further instructed: Whena persontransports a victim from the scene of a robbery for the purpose of avoiding detection for the crime of robbery, that person is engaged in the immediate flight from the robbery. (18 RT 3190; VI CT 1656.) The court also instructed on the kidnapping special circumstance. (18 RT 3190; VI CT 1655.) As to mental state for the special circumstances, the court instructed the jury with CALJIC No. 8.83.1, as follows: 88 The specific intent or mental state with which an act is done may be shownbythe circumstancessurrounding its commission. But you maynot find a special circumstance allegedin this case to be true unless the proved surrounding circumstancesare not only 1. Consistent with the theory that the defendant had the require[d] specific intent or mental state but 2. Cannot be reconciled with any otherrational conclusion. Also, if the evidence as to any such specific intent or mental state is susceptible of two reasonable interpretations, one of whichpoints to the existence of the specific intent or mental state and the other to the absenceofthe specific intent or mental state, you must adoptthat interpretation whichpoints to the absence of the specific intent or mentalstate. If, on the other hand, oneinterpretation of the evidence as to such specific intent or mental state appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable. (18 RT 3192-3193; VI CT 1657-1658.) In her closing argument, the prosecutorstated that the special circumstances would not apply if the robbery and kidnapping were merely incidental to the murder. (18 RT 3220.) The jury found both special circumstancestrue. (19 RT 3332-3333; VI CT 1726-1727.) B. Forfeiture Generally, a party may not complain on appeal about a given instruction that was correct in law and responsive to the evidence unless the party made an appropriate objection. (People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012.) Moreover, [w]here an instruction on a particular point or points as given by the court is correct as far as it goes, and the only valid objection, if any,to it is that it is deficient or inadequate by reasonofits generality, indefiniteness, or incompleteness, if defendant desires additional, amplified, explanatory, fuller, or more complete, elaborate, comprehensive, definite, specific or explicit 89 instructions on such point or points, he must properly request the same, otherwise error cannotbe predicated uponthe failure to give such additional instruction. (People v. Reed (1952) 38 Cal.2d 423, 430; People v. Andrews (1989) 49 Cal.3d 200, 218.) Here, appellant failed to request any instruction regarding an accidental shooting. He has, therefore, forfeited this claim on appeal. (People v. Hudson, supra, 38 Cal.4th at pp. 1011-1012.) Likewise, although appellant claims CALJIC No. 8.81.17 is ambiguous,he failed to request amplification or a more complete instruction. (AOB 107.) This, too, forfeits the claim on appeal. (People v. Reed, supra, 38 Cal.2d at p. 430; People v. Andrews, supra, 49 Cal.3d at p. 218.) Appellant urges this Court nevertheless to review alleged instructional error becauseit affects his substantial rights. (AOB 101, fn. 15.) It is true that the Court may review any instruction which affects the defendant’s “substantial rights,” with or without a trial objection. (§ 1259.) If this Court finds no forfeiture, appellant’s claim lacks merit. C. The Trial Court’s Jury Instructions Did Not Lessen the Prosecution’s Burden of Proof as to the Special Circumstances. Appellant’s claim focuses on the second sentenceofthe last paragraph of CALJIC No. 8.81.17: “In other words, the special circumstance referred to in these instructionsis not establishedif the attempted robbery was merely incidental to the commission of the murder.” Hearguesthat because ofthis language, the instruction doesnotreflect the “heightened intent” requirementthat distinguishes the felony-murder special circumstance from felony-murderitself. (AOB 103, 107-108.) No such “heightened intent” requirement exists. Accordingly, CALJIC No. 8.81.17 properly instructed the jury. Appellant apparently ignores the first portion ofthe instruction, which requires, in order to find the special 90 circumstancetrue, proofthat “[t]he murder was committed in order to carry out or advance the commission ofthe crime of robberyorto facilitate the escape there from or to avoid detection.” A true finding of the special circumstance does not require that the killing is specifically intended to advance the underlying felony. Rather, the only finding that is necessary is whetherthe killing, in fact, advanced the underlying felony. In this case, the killing certainly advanced the underlying felony because appellant’s intent was to rob Diana, and he wasable to get away and avoid detection longer because she was dead. The only intent necessary for the special circumstanceis the intent to commit the underlying felony — nothingelse is required. (People v. Anderson, supra, 43 Cal.3d at pp. 1146-1147; People v. Huggins (2006) 38 Cal.4th 175, 215.) Here, the jury found the special circumstances of murder during the commission of a robbery and a kidnapping true. (19 RT 3332-3333; VI CT 1726-1727.) It undoubtedly basedits findings on the fact that appellant, admittedly, took Diana’s money, drove herto a desolate location against her will, and shot her three times at close range. Under Special Instruction No.2, the jury also evidently found that since appellant transported the victim from the scene of the robbery for the purpose of avoiding detection for the crime of robbery, he was engaged in the immediate flight from the robbery. (18 RT 3190; VI CT 1656.) Appellant contends, though,that failing to instruct sua sponte on the defense of accident violated his right under the Sixth and Fourteenth Amendments to adequate instructions on his theory of the defense, and the Sixth Amendmentright to a jury trial. (AOB 108-111.) His argument can be summarized as follows: Some Jurors could have interpreted the second sentenceofthe last paragraph of the CALJIC No. 8.81.17 to mean that they did not need to deliberate on 91 whether the shooting was doneto carry out or advance the robbery or kidnapping as long as they found the robbery and kidnapping were not incidental to the murder. (AOB 107-108). In other words, some jurors could have believed that the shooting was accidental, but they wouldstill find the special circumstances true because the robbery and kidnapping were notincidental to the shooting. The court failed to instruct the jury whether an accidental act wassufficient for the special circumstances, so jurors had no wayto-concludethat an accidental shooting occurred. The claim is that the instruction is ambiguousandtherefore subject to an erroneousinterpretation. We think the proper inquiry in such a case is whetherthere is a reasonable likelihood that the jury has applied the challenged instruction in a waythat prevents the consideration of constitutionally relevant evidence. (Boyde v. California (1990) 494 U.S. 370, 380.) Appellant makes it sound as ifjurors could have concluded that an accidental shooting occurred, but that the second sentenceofthe last paragraph of CALJIC No. 8.81.17 prevented them from so concluding. And since they had no other direction from the court as to accident, they had to find the special circumstances true, which meansthe shooting could not have been accidental and appellant must have committed murderas alleged. On the contrary, if some jurors believed the shooting to be accidental, it would not matter whether or not they also believed the robbery and kidnappingto be incidental to the murder. In other words, they would not believe that murder was committed at all, but perhaps involuntary manslaughter. So, the entirety of the special instructions would be excludedasirrelevant. Put differently, since the killing occurred during the [intended] commission of the robbery or kidnapping, the felony-murder special circumstance is proven, regardless of whetheror not the shooting wasaccidental. Thetrial court instructed jurors that the instructions were to be considered as a whole. (CALJIC No. 1.01; VI CT 1569). The court also 92 told jurors that not all instructions were necessarily applicable and that they were to apply thosethatfit the facts they found and could disregard those that did not. (CALJIC No. 17.31; VI CT 1667.) This Court will presume that the jury followed the court’s instruction. (People v. Lindberg (2008) 45 Cal.4th |, 26.) Appellant argues that any erroris subject to Chapman review. (Chapman v. California, supra 386 U.S. at p. 24; AOB 110.) But this might be so only if CALJIC No. 8.81.17 omitted an element of an offense, or raised an improper rebuttable presumption. No rebuttable presumptionis at play here, and the second portion of the instruction is a qualifying clause which does not purport to add an additional elementto the felony-murder(robbery) special circumstance. (People v. Stanley (2006) 39 Cal.4th 913, 956.) Therefore, there is no reasonable likelihood that somejurors believed the shooting to be accidental but nevertheless convicted appellant of murder and the special circumstances. Accordingly, this claim fails. VI. CALIFORNIA’S FELONY-MURDERSPECIAL CIRCUMSTANCESDO NOT VIOLATE THE FEDERAL CONSTITUTIONAL REQUIREMENT THAT THE CLASS OF OFFENDERSELIGIBLE FOR THE DEATH PENALTY BE NARROW Appellant contends that, to the extent that CALJIC No. 8.81.17 accurately reflects California’s law on felony-murderspecial circumstances,it violates the Eighth and Fourteenth Amendments to the United States Constitution because the special circumstances have becomeidentical to the crime of felony-murder ... and no longerallow the sentencer to make a “principled distinction between those who deserve the death penalty and those who donot.” (AOB 112.) The use of the felony-murderrule as a qualifying special circumstance in California’s capital jurisprudence has a 93 controverted history. (Compare, e.g., Carlos v. Superior Court (1983) 35 Cal. 3d 131 [197 Cal. Rptr. 79, 672 P.2d 862], with People v. Anderson (1987) 43 Cal. 3d 1104, 1147 [240 Cal. Rptr. 585, 742 P.2d 1306] {overruling Carlos]; see also People v. Coleman (1988) 46 Cal. 3d 749 [251 Cal. Rptr. 83, 759 P.2d 1260].) It is enough to point out that in People v. Marshall (1990) 50 Cal. 3d 907 [269 Cal. Rptr. 269, 790 P.2d 676] we rejected an argumentidentical to the one petitioner makes here—“that the felony-murder special circumstance does not provide the ‘meaningful basis [required by the Eighth Amendment] for distinguishing the few cases in which [the death penalty] is imposed from the manycasesin whichitis not’”--on the groundthat “in People v. Anderson, supra, 43 Cal. 3d at page 1147, we squarely rejected that very point.” (/d.at p. 946.) We do so againin this case. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1265-1266.) “We have rejected this exact claim numeroustimes (citation omitted), and defendant does not attempt to explain why ourprior decisions were incorrect.” (People v. Gurule (2002) 28 Cal.4th 557, 663.) Appellant further contends that California felony-murderspecial circumstances are unconstitutionally overbroad. (AOB 118.) This Court has repeatedly held that the California death-penalty scheme meets Eighth Amendment requirements. Thestatute is not overbroad based on the numberof special circumstances, or because it permits execution for an unintentional felony-murder. (E.g., People v. Cornwell (2005) 37 Cal.4th 50, 102; People v. Anderson (2001) 25 Cal.4th 543, People v. Box (2000) 23 Cal.4th 1153, 1217; People v. Ochoa (1998) 19 Cal.4th 353, 479; People v. Frye (1998) 18 Cal.4th 894, 1029; People v. Crittenden (1994) 9 Cal.4th 83, 154-156; People v. Marshall, supra, 50 Cal.3d at p. 946.) Accordingly, this claim must again berejected. 94 VIL APPELLANT’S SENTENCE IMPOSED FOR FELONY MURDER SIMPLICITER IS NOT DISPROPORTIONATE UNDER THE EIGHTH AND FOURTEENTH AMENDMENTSAND DOES NOT VIOLATE INTERNATIONAL LAW Appellant contendsthat his sentence of death imposed for felony- murder simpliciter is disproportionate and also violates international law because no culpable state of mind is required. (AOB 121-122.) This Court has previously and repeatedly rejected both claims. A. Proportionality Appellant correctly concedes that California authorizes the imposition of death upon a person whokills during the commission ofcertain enumerated felonies, such as robbery and kidnappingin this case, without regard to his state of mind. (AOB 123.) This has been the law in California since 1987. (People v. Anderson, supra, 43 Cal.3d at p. 1104.) Appellant incorrectly argues, however, that imposition of the death penalty on an actual killer who accidentally kills the victim during the course of a dangerousfelony is unconstitutional. (AOB 124-134.) In People v. Earp (1999) 20 Cal.4th 826, 905, fn. 15, this Court rejected such an argument, noting, defendant is wrong whenheassertsthat this court has never addressed whether, consistent with the federal Constitution’s Eighth Amendment, the death penalty can be an appropriate punishment for someone whokills accidentally during such activity. In Anderson, this Court carefully considered whether United States Supreme Court decisions required that an acutal killer harbor an intent to kill or other heightened mensrea to be eligible for the death penalty. (43 Cal.3d at pp. 1146-1147.) Appellant has not presented a persuasive argumentto justify revisiting this settled issue. Indeed, as the United States Supreme Court found, an individual who engagesin criminal behavior 95 “knownto carry a graverisk of death,”like robbery and kidnapping, has a “highly culpable mentalstate” justifying imposition of the death penalty. (Tison v. Arizona (1987) 481 U.S. 137, 157.) Appellant pulled the trigger himself, three times, killing Diana, during the commission of robbery and kidnapping. Asthe actual killer of Diana, the federal Constitution required no more mental state than appellant’s intent to commit robbery and kidnapping. Appellant has never denied that he harboredthe intent to rob and kidnap Diana, which was a “highly culpable mentalstate”sufficient to support imposition of the death penalty. (Tison v. Arizona, supra, 481 U.S. at 157.) Accordingly, death is not a disproportionate sentence. B. International Law Appellant contends that imposition of the death penalty on a person without proof that the murder wasintentional violates both the International Covenant on Civil and Political Rights (ICCPR) and customary international law. (AOB 136, 139.) Again, this Court has previously rejected these claims. California’s death-penalty law does not violate the ICCPR, which prohibits the “arbitrary” deprivation of life and bars “cruel, inhuman or degrading treatment or punishment.” The covenantspecifically permits the use of the death penalty “if imposed only for the most serious crimes in accordance with the law in force at the time of the commission ofthe crime.” (Art. VI, § 2.) When the United States ratified the treaty, it specifically reserved the right to impose the death penalty on any person, except a pregnant woman, duly convicted underthe laws permitting imposition of the death penalty. (See 138 Cong. Rec. S-4718-01, $4783 (1992); People v. Mungia (2008) 44 Cal.4th 1101, 1143; People v. Perry (2006) 38 Cal.4th 302, 322; People v. Brown (2004) 33 Cal.4th 382, 403- 404.) 96 California’s death-penalty law doesnotviolate international normsin contravention of the prohibition on cruel and unusual punishment. (People v. Perry, supra, 38 Cal.4th at p. 322.) Nor does it offend international norms of humanity and decency. (People v. Mendoza (2007) 42 Cal.4th 686, 708; People v. Beames (2007) 40 Cal.4th 907, 935). Moreover, it does not generally violate international law, as international law does not prohibit a sentence of death rendered in accordance with state and federal constitutional and statutory requirements. (People v. Hawthorne (2009) 46 Cal.4th 67, 104; People v. Hoyos (2007) 41 Cal.4th 872, 925.) As appellant brings nothing new to the issue, his claim should be rejected. VII. THE TRIAL COURT PROPERLY ADMITTED AUTOPSY AND CRIME SCENE PHOTOGRAPHS. REVERSAL OF NEITHER PHASE IS WARRANTED. Appellant contendsthat the trial court’s admission of autopsy and crime scene photos was “unduly prejudicial under Evidence Code section 352['*] and violated [his] constitutional rights to due process, a fair trial, a jury trial, equal protection, and reliable jury determination on guilt, the special circumstances andpenalty,” and he asksfor reversal ofall three. (AOB140.) No error occurred; thus, reversal is not warranted. A. Relevant Record The prosecution movedthetrial court to admit autopsy and crime scene photographs. (V CT 1331-1338; 1 RT 42, 46-50, 53.) Appellant and Stroder objected to the use of these photographs and movedthe court to 'S Evidence Code section 352 provides: The court in its discretion may exclude evidenceif its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption oftime or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. 97 exclude all such evidence as highly inflammatory and prejudicial. (V CT 1428-1434; 1 RT 3, 43-46, 50-53.) The defense argue that because appellant had admitted every element of the prosecution’s case and other expert witnesses corroborated appellant’s description of the shooting and trajectory of the bullets, the photographs werenot relevant to any disputed issue. (1 RT 43-46, 50-53.) The prosecution countered that it was not bound by appellant’s explanation of what happenedbut wasentitled to present its own evidenceofguilt. (1 RT 47.) The court excluded one photograph as cumulative, but found that the others “may have someprobative value.” The court did not find the photographs so gruesomeasto posea serious dangerof inflaming the jury. (1 RT 53.) The court “weighed the probative value... against . . . minimal prejudicial effect” and denied the defense motion to exclude the photographs, without prejudice. (1 RT 54.) During the guilt phase, the defense renewed the motion to exclude and the court again deniedit. (13 RT 2381-2383.) B. Analysis The admission of allegedly gruesome photographsis basically a question of relevance over whichthetrial court has broad discretion. (People v. Scheid (1997) 16 Cal.4th 1, 13-14.) A trial court’s decision to admit photographs under Evidence Codesection 352 will be upheld on appeal unless the prejudicial effect of such photographs clearly outweighs their probative value. (People v. Roldan (2005) 35 Cal.4th 646, 713.) Here, appellant argues that since the photographsportray nothing in dispute, they were irrelevant. Although defendant argues the photographs were cumulative to his explanation of how he shot Diana and expert testimony, this fact does not demonstrate the trial court abused its broad discretion. Photographsof a victim may properly be admitted to corroborate testimony of an expert witness. (People v. Stanley (1995) 10 98 Cal.4th 764, 838; People v. Kaurish (1990) 52 Cal.3d 648, 684.) As the prosecution argued,it was entitled to present its own evidence ofguilt. (1 RT 47.) Crime-scene and autopsy photosare part of the circumstances of the crime and are not barred byeither the Eighth or Fourteenth Amendment. (People v. Hart (1999) 20 Cal.4th 546, 648; People v. Clair (1992) 2 Cal.4th 629, 682.) This Court has often rejected the defense contention that photographs of the murder victim must be excluded as cumulative simply because testimony also has been introduced to prove facts that the photographs are intended to establish. [P]rosecutors . . . are not obliged to prove their case with evidence solely from live witnesses; the jury is entitled to see details of the victims’ bodies to determine if the evidence supports the prosecution’s theory of the case. (People v. Gurule, supra, 28 Cal.4th at p. 625; People v. Jackson (1996) 13 Cal.4th 1164, 1216; People v. Lucas (1995) 12 Cal.4th 415, 449-450.) “The photographs demonstrated the real life consequences of defendant’s crimes and pointedly madeclear the circumstancesof the offenses... .” (People v. Moon, supra, 37 Cal.4th at p. 35.) Thetrial court properly balanced the probative value of the photographsto the prosecution’s case against their “minimal prejudicial effect” and correctly admitted all but one cumulative photograph. (1 RT 54.) No abuse of discretion occurred. Accordingly, reversalis not warranted andthis claim fails. IX. SUBSTANTIAL EVIDENCE SUPPORTED APPELLANT’S KIDNAPPING CONVICTION AND THE TRUE FINDING ON THE KIDNAPPING SPECIAL CIRCUMSTANCE Appellant contends that the prosecution presented insufficient evidence to support his kidnapping conviction andthe true finding on the kidnapping special circumstance. (AOB 154.) Respondentdisagrees. 99 A. Relevant Record Diana’s family knew that she intended to shopat the Valley Plaza Mall on December9, 1993. (12 RT 2141.) A mall security guard saw Diana exit her car in the Valley Plaza parking lot between 9:00 and 9:40 a.m. (13 RT 2455-2456.) Bank records showed that Diana used a mall ATMat 8:55 a.m. that morning. (14 RT 2524.) She madeseveral purchasesat the mall between 10:15 and 11:15 a.m. (13 RT 2466-2467, 2471-2472, 2476-2477.) Later that morning, contrary to arrangements, Dianafailed to arrive at her sister’s house to watch hersister’s children. (12 RT 2139-2140, 2143, 2151.) Appellant pulled up next to Diana at the mall. (17 RT 3012.) He decided to rob her because she waslittle and would not be muchtrouble. (17 RT 2998, 3013.) Diana entered appellant’s car against her will. (17 RT 3008.) Whenshe did, she looked down. The .30-30 rifle wassitting across the gear shift, partly in appellant’s lap and pointing downward. (17 RT 2998.) Appellant said, “I don’t want to hurt you. I just want some money.” (17 RT 3013.) After she got in, appellant set the rifle down low between the seats. (17 RT 2998.) Appellant remembered that Diana had a car phoneso he did not return her to her car. He wanted to drop her off far enough out of town to give him time to get away. (17 RT 2999-3000.) Diana showed him theeasiest way out of town. (17 RT 3029-3030.) He drove to a desolate and remote area with no phonesnearby. His plan wasto drop her off and drive away. (17 RT 3000.) Diana seemed nervous aboutthat, so appellant told her “he wouldn’t leave her off somewhere whereit’s too far from a call box ora gas station or town.” (17 RT 3014.) 100 In guilt phase closing argument, appellant argued “there’s absolutely no evidence of Diana Contreras, how Diana Contreras got in that car.” (18 RT 3232.) The prosecution argued it doesn’t really matter how she got into the car becausethereis no innocent explanation . . . for Diana Contreras being in the car with twototal strangers. (18 RT 3288.) B. Legal Principles Under the due process clauses of both the Fourteenth Amendmentof the federal Constitution and article I, section 15 of the California Constitution, the test of whether evidenceis sufficient to support a conviction is whether, after viewing the evidencein the light most favorable to the prosecution, anyrationaltrier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Rowland (1992) 4 Cal.4th 238, 269; People v. Johnson (1980) 26 Cal.3d 557, 576.) In making this assessment the court looks to the whole record, not just the evidence favorable to the respondent to determine if the evidence supporting the verdict is substantial in light of other facts. (People v. Johnson, supra, 26 Cal.3d 557, 577; People v. Bassett (1968) 69 Cal.2d 122, 138.) The standard of appellate review is the same when the evidence of guilt is primarily circumstantial. “Although it is the duty of the jury to acquit a defendantifit finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence[citations], it is the jury, not the appellate court which must be convinced ofthe defendant’s guilt beyond a reasonable doubt.” “If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances mightalso be reasonably reconciled with a contrary finding does not warranta reversal of the judgment.” (Citations omitted.) 101 (People v. Holt (1997) 15 Cal.4th 619, 668.) Whenthetrier of fact has relied on inferences, those inferences must be reasonable. Aninferenceis not reasonableif it is based only on speculation. (/d. at p. 669.) Appellant contendsthat “the convictions in this case were based upon nothing more than conjecture and surmise and cannot be affirmed.” (AOB 155.) Appellant was convicted in count 2 of kidnapping to commit robbery. (VI CT 1729.) Thetrial court instructed the jury on simple kidnapping with CALJIC No. 9.50 as follows: In order to prove such crime, each of the following elements must be proved: 1. A person was unlawfully compelled by another person to movebecause of a reasonable apprehension of harm. 2. The movement of such other person was without her consent, and 3. The movementof such other person wasfor a substantial distance, that is, a distance morethanslightortrivial. (18 RT 3168; VI CT 1610-1611.) . The court also instructed on consent with CALJIC No. 9.56 as follows: Whenoneconsents to accompany another, there is no kidnapping so long as such condition of consent exists. To consent to an act or transaction, a person must: 1. Act freely and voluntarily and not underthe influence of threats, force or duress; 2. Have knowledge of the true nature of the act or transaction involved; and 3. Possess sufficient mental capacity to make anintelligent choice whetheror not to do something proposed by another person. 102 Merepassivity does not amount to consent. Consent requires a free will and positive cooperation in the actorattitude. (18 3168-3169; VI CT 1612.) Appellant was convicted of committing murder during the commission of a kidnapping. (VI CT 1727.) The court instructed with CALJIC No. 8.81.17 as noted in Argument V. (18 RT 3190; VI CT 1655.) Sufficient evidence supports the kidnapping conviction and the kidnapping special circumstance finding, especially when that evidenceis contrasted to consent. The evidence showsthat Diana voluntarily went to Valley Plaza Mall. Indeed, her family said as much. (14 RT 2141.) The mall guard saw herexit her car alone, and financial transactions also show that she, in fact, shopped at the mall between 10:15 and 11:15 that morning, as intended. (13 RT 2455-2456, 2466-2467, 2471-2472, 2476-2477.) The jury knew that at some point after 11:15, however, Diana got into appellant’s car, which was parked next to her own. Appellant admitted that she did so against her will. (17 RT 3008.) When she gotin, she looked downand wasable to seetherifle, partly in appellant’s lap and partly across the gear shift. After she wasinside the car, appellant put therifle low between the seats. (17 RT 2998.) From this, the jury could reasonably infer that Diana did not enter or remain in the vehicle voluntarily, but did so because of a reasonable apprehension of harm. (CALJIC No. 9.56.) There can be no doubtthat driving to the Taft area constituted a movementfor a substantial distance. The elements of kidnapping were met. Therefore, the jury did not base its verdicts on speculation, but relied on inferences that were reasonable. (People v. Holt, supra, 15 Cal.4th at p. 669.) It was reasonable to infer that Diana would not get into a car with strangers, voluntarily go with them and give them her money,and then drive to the isolated area where her body wasleft for no apparent reason. Although evidence wascircumstantial, the jury could not interpret it as 103 pointing to innocence. (/d. at p. 668.) As the prosecutor pointed out, there simply was no innocent explanation for her conduct.'? (18 RT 3288.) The guilty explanation was the only one that madesense. Appellant suggests that Diana may have been movedbypity to enter the car of strangers and offer them moneybecauseoftheir sob story. (AOB 160.) But, the jury knew that Diana was scheduled to babysit her sister’s children, and that her failure to appear was uncharacteristic. If the circumstances reasonablyjustify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Holt, supra, 15 Cal.4th at p. 668.) Thus, a scenario of “pity” would be incredulous, and, even if it had been considered by the jury, it still would not explain how or why Dianaendedupin the Taft area. Viewedin the light most favorable to the prosecution, the encounter establishes kidnapping by fear. A consensual encounter based onpity is speculative at best. Accordingly, this claim fails. X. THE TRIAL COURT DID NOT INSTRUCT THE JURY ON VOLUNTARY MANSLAUGHTER BECAUSE THE EVIDENCE DID NOT SUPPORT THAT INSTRUCTION Appellant contends thatthe trial court prejudicially erred in failing to instruct the jury on voluntary manslaughter, a lesser-included offense to murder. (AOB 165.) Respondentdisagrees. It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of '° Appellantstates that “the prosecutor acknowledgedthat there was no evidence of any kidnapping... .” (AOB 164.) Actually, the prosecutor pointed out that Diana could notbethereto tell the jury how she gotinto appellant’s car because she had been murdered,andsaid, “You don’t have direct evidence . . . circumstantial evidenceis just as good as direct evidence.” (18 RT 3287.) She then asked the jury to look at the circumstances regarding how Dianaentered the car. (18 RT 3287-3288.) 104 law relevant to the issues raised by the evidence. [Citations. ] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case. [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whetherall of the elements of the charged offense werepresent(citation), but not whenthere is no evidence that the offense was less than that charged. . . Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidenceis sufficient to establish a lesser included offense. (People v. Sedeno (1974) 10 Cal.3d 703, 715, overruled on other groundsin People v. Breverman (1998) 19 Cal.4th 142, 149 (Breverman).) The existence of “any evidence, no matter how weak”will not justify instructions on a lesser included offense, but such instructions are required wheneverevidencethat the defendantis guilty only of the lesser offense is “substantial enough to merit consideration” by the jury. (Breverman, supra, at p. 162.) It is “evidence that a reasonable jury could find persuasive.” (People v. Lewis (2001) 25 Cal.4th 610, 645 (Lewis), quoting People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.) The testimony ofa single witness, including the defendant, can constitute substantial evidence requiring the court to instruct on its owninitiative. (Lewis, supra, at p. 646.) An appellate court applies the independent or de novo standard of review to the failure by a trial court to instruct on an uncharged offense that was assertedly lesser than, and included, in a charged offense. Whetheror not to give any particular instruction in any particular case entails the resolution of a mixed question of law and fact that, we believe, is however predominantly legal. As such, it should be examined without deference. (People v. Waidla (2000) 22 Cal.4th 690, 733.) 105 Section 192, subdivision (a) provides that an unlawful killing committed without malice and “upon a sudden quarrel or heat of passion”is voluntary manslaughter. Manslaughter, both voluntary and involuntary,is a lesser included offense of murder. (Lewis, supra, at p. 645.) The heat of passion requirement for manslaughter has both an objective and a subjective component. (People v. Wickersham (1982) 32 Cal.3d 307, 326-327.) The defendant mustactually, subjectively, kill under the heat of passion. (/d. at p. 327.) But the circumstances giving rise to the heat of passion are also viewed objectively. As explained long ago in interpreting the same language ofsection 192, “this heat of passion must be such a passion as would naturally be aroused in the mind ofan ordinarily reasonable person underthe given facts and circumstances,” because no defendant mayset up his own standard of conduct andjustify or excuse himself becausein fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions ofthe ordinarily reasonable man. (People v. Logan (1917) 175 Cal. 45, 49.) To satisfy the objective or “reasonable person” elementof this form of voluntary manslaughter, the accused’s heat of passion must be dueto “sufficient provocation.” (People v. Wickersham, supra, 32 Cal.3d at p. 326.) Here, there was no evidencethat appellant acted under such provocation that would arouse the passionsof an ordinarily reasonable person when hekilled Diana. Appellant drove to a desolate and remote area to drop her off and drive away. (17 RT 3000.) This made Diana nervous. (17 RT 3014.) Diana began crying and pleading with appellant not to leave her there. Shesaid, “just drive me back into town.” At this point, appellant had the rifle in his hands, trying to scare her. (17 RT 3000, 3015.) When Diana camearoundto his side, he told her to “just go, just start walking that way.” (17 RT 3000-3001.) Diana was coming close to 106 him. Appellantsaid, “[J]ust start walking, please. I don’t want to shoot you.” She waspleading, “[D]on’t leave me, don’t shoot me.” Appellant told her to walk, “you'll! find somebody. I don’t want to shoot you. I don’t want to hurt you.” (17 RT 3001.) And then he shother, three times. (17 RT 3005.) Appellant again cites to information not presentedto the jury, 1.e., that Stroder started arguing with Diana as she let Diana out of the car. (AOB 170; VI CT 1081.) Appellant then speculates that a reasonable jury could infer that he killed the victim because she was arguing with Stroder and he becameoverly excited or provoked.”” (AOB 170.) “Overly excited or provoked”is not the standard. The victim waspleading at gunpointnot to be left alone in such a desolate place. No case has ever suggested, however, that such predictable conductby a[n] [un]resisting victim would constitute the kind of provocation sufficient to reduce a murder charge to voluntary manslaughter. (People v. Jackson (1980) 28 Cal.3d 264, 306.) Even if the jury had heard about Stroder arguing as Diana got out of the car, that evidence would not have been“substantial enough to merit consideration” on a heat-of-passion theory. (Breverman, supra, at p. 162.) This is particularly so with regards to evidence that appellant acted subjectively under a heat of passion because the record contains no evidence of this. To the contrary, appellant’s own uncontested testimony established he did not act from strong passion. He claimed the shooting wasaccidental, not that he was emotional whenhefired the first shot. (17 RT 3005-3006, 3017.) °° By appellant’s own reckoning, however, Stroder got back into the car before Diana camearoundto his side, before her pleading with him, and before he told her to start walking. (VI CT 1068.) This information, however, also was not before the jury. 107 Asthetrial court noted: Given the evidencepresented in this case, the Court finds that there is absolutely no way the jury could find heat of passion as defined in Caljic [sic] could possibly apply to this case or that there would be a — the emotionalstate defined in Caljic [sic] or required underthe law that would makeit legally a possible verdict in this case. (17 RT 3117-3118.) This Court should agree with the trial court’s decision not to give a voluntary manslaughterinstruction and reject appellant’s claim. XI. THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S REQUEST TO QUESTION THE VICTIM’S FAMILY REGARDING PUNISHMENT Appellant contendsthat the trial court erred in denying his request to question the victim’s family whether they would besatisfied with a sentence oflife without the possibility of parole. (AOB 175.) Appellant acknowledges that this Court has held against him. It is clear that the prosecution maynotelicit the viewsof a victim or victim’s family as to the proper punishment. (Booth v. Maryland (1987) 482 U.S. 496, 508-509 [96 L. Ed. 2d 440, 107 S. Ct. 2529].) The high court overruled Booth in part, butit left intact its holding that “the admission of a victim’s family members’ characterizations and opinions about the crime, the defendant, and the appropriate sentence violates the Eighth Amendment.” (Payne v. Tennessee, supra, 501 U.S.at p. 830, fn. 2.) That court has never suggested that the defendant must be permitted to do what the prosecution may not do. The views of acrime victim . . . regarding the proper punishment has no bearing on the defendant’s character or record or any circumstance of the offense. (Skipper v. South Carolina, supra, 476 U.S. at p. 4.) Hence, the Eighth Amendmentto the United States Constitution does not compel admission of those views. (Robison v. Maynard(10th Cir. 1991) 943 F.2d 1216, 1216- 1217 [even after Payne v. Tennessee, supra, 501 U.S. 808, “testimony from a victim’s relative that she did not want the jury to impose the death penalty was improper mitigating evidence and inadmissible at the penalty phase hearing”’].) 108 (People v. Smith, supra, 30 Cal.4th at p. 622.) Appellant asks this Court to reconsiderits holding in Smith, supra. (AOB 177.) But, in Smith, as here, the victim’s family’s views on punishment have no bearing on appellant’s character or record or any circumstance of the robbery, kidnapping, and murder. (People v. Lancaster (2007) 41 Cal.4th 50, 97.) Thus, since appellant brings nothing new to the issue, this claim should be rejected. XII. THE TRIAL COURT PROPERLY ADMITTED VICTIM- IMPACT EVIDENCE Appellant contends that the trial court prejudicially erred in admitting substantial victim-impact evidence,“including photos that showed the victim throughoutherlife and testimony from friends and family that described herlife and future plans.” (AOB 187.) Respondentdisagrees. A. Relevant Record The prosecution movedto introduce victim-impact evidence,i.e., live testimony from several of Diana’s family membersandherbestfriend, approximately 20 photographs depicting Dianaat various stages ofherlife, and a statement regarding her future plans. The defense objected. The court granted the prosecution’s motion. (V CT 1371-1383; VI CT 1745- 1746; 20 RT 3350-3354; 22 RT 3469-3474.) Diana’s sister, Perales, testified that she and her two children were very close to Diana. (22 RT 3483-3484.) Diana, who wasattending college with the idea of becomea pediatrician, was also very close to their disabled mother and always cared for her. (22 RT 3484-3485.) Diana’s death affected their mother — their mother continuesto call out for “Luli,” Diana’s nickname. (22 RT 3485-3486.) Diana wasalso close to her other nieces and nephews, whowerealso adversely affected. Perales felt, “I was in shock, like somebody broke my heart in two.” (22 RT 3486.) Diana had lived her whole life with her family in her parents’ home, having movedout 109 several months before her death. (22 RT 3487.) Perales gave the prosecutor a group of photographs showing hersister at various stages in herlife. These photographs werereceived into evidence. (22 RT 3486- 3488.) To Lovett, Diana’s best friend, Diana was a nice and caring person whobelieved that even if a person wasevil, there was always a nice person inside. Lovett was hurt badly by Diana’s death. (22 RT 3488-3489.) Diana had many friends whocared for her and protected her. (22 RT 3490.) Everyone liked her; no one had a reason to hate her because she gave no one reason to. (3490-3491.) To Diana’s father, Raymond, Diana was the sweetest person and had a kind heart, a heart of gold. The entire family loved her and was so proud of her. Diana wastrying to accomplish something. She wanted to help people; she wanted to help her father. Diana was attending college, taking a psychologycourseto help her father cope with his wife’s car accident. Of all the children, Diana was the closest to her mother. Her mother worshipped the ground Diana walked on. Raymondsaid that Diana “was her heart, she was her eyes, she was everything to my wife.” (22 RT 3491- 3492.) Diana’s death hurt everyone, but her mothertried to stay strong for the others. Raymond was “a broken man.” (22 RT 3493.) Diana worked with disabled people while she was going to college. By beingthefirst to go to college, Diana changed the family trend, makingall her father’s 14 grandchildren wantto go to college, too. (22 RT 3493-3494.) The court instructed the jury with a special instruction that addressed victim-impact evidence. The specific harm caused by the defendant, including the impact on the family of the victim and on the community,is not a separate aggravating fact but may be considered by youaspart of the circumstances of the crime for which the defendant was convicted in the present proceeding. 110 (VI CT 1857-1858; 24 RT 3852.) In her penalty phase closing argument, the prosecutor spoke of how Diana must have felt during the crimes, the pain she suffered before death, and the devastating impact her murder had on her family, friends, and the community. (24 RT 3860, 3862-3867.) B. Legal Principles The Eighth Amendmenterects no per se bar prohibiting a capital jury from considering victim-impact evidencerelating to a victim’s personal characteristics and impact of the murder on the family, and does not preclude a prosecutor from arguing such evidence. (Payne v. Tennessee (1991) 501 U.S. 808 (Payne).) Victim-impact evidence is admissible during the penalty phase of a capital trial because Eighth Amendment principles do not prevent the sentencing authority from considering evidenceof“the specific harm caused by the crime in question.” The evidence, however, cannot be cumulative,irrelevant, or “so unduly prejudicial that it renders the trial fundamentally unfair.” (/d. at pp. 825, 829.) In California, section 190.3, subdivision (a), permits the prosecution to establish aggravation by the circumstances of the crime. The word “circumstances” does not mean merely immediate temporal andspatial circumstances, but also extends to those which surround the crime “materially, morally, or logically.” Factor (a) allows evidence and argument on the specific harm caused by the defendant, including the psychological and emotional impact on surviving victims and the impact on the family of the victim. (People v. Edwards (1991) 54 Cal.3d 787, 833- 836; see also People v. Brown, supra, 33 Cal.4th at p. 398; Peoplev. Taylor, supra, 26 Cal.4th at p. 1171; People v. Mitcham (1992) | Cal.4th 1027, 1063; People v. Pinholster (1992) 1 Cal.4th 865, 959.) Victim- impact evidenceis not limited to the impact on the victim’s immediate 111 family; it extends to the suffering and loss inflicted on close personal friends. (People v. Pollock (2004) 32 Cal.4th 1153, 1183.) This Court has repeatedly found victim-impact evidence and related “victim character” evidence to be admissible as a “circumstance of the crime” undersection 190.3, factor (a). (People v. Robinson (2005) 37 Cal.4th 592, 650; People v. Panah, supra, 35 Cal.4th at pp. 494-495; People v. Benavides (2005) 35 Cal.4th 69, 107; People v. Brown, supra, 33 Cal.4th at pp. 396-398; People v. Pollock, supra, 32 Cal.4th at p. 1181; People v. Edwards, supra, 54 Cal.3d at pp. 832-836.) There are limits, however, on the permissible “emotional evidence and argument”. ‘““‘[T]he jury must face its obligation soberly and rationally, and should not be given the impression that emotion may reign over reason.” (People v. Robinson, supra, 37 Cal.4th at pp. 650-651.) “[J]urors may in considering the impact of the defendant’s crimes, ‘exercise sympathy for the defendant’s murder victims and . . their bereaved family members.”” (People v. Zamudio (2008) 43 Cal.4th 327, 369.) But, irrelevant information or inflammatory rhetoric that diverts the jury’s attention from its properrole or invites an irrational, purely subjective response should be curtailed. (People v. Harris (2005) 37 Cal.4th 310, 351, internal citations & quotations omitted.) Moreover,“[t]he federal Constitution bars victim- impact evidence only ifit is ‘so unduly prejudicial’ as to renderthetrial ‘fundamentally unfair.’” (People v. Hamilton (2009) 45 Cal.4th 863, 927, citing Payne, supra, 501 U.S. at p. 825.) Thus, victim-impact evidence does not include characterizations or opinions about the crime, the defendant, or the appropriate punishment, by the victims’ family or friends. (People v. Pollock, supra, 32 Cal.4th at p. 1180.) Appellant cites to the concurring and dissenting opinionsof Justice Kennard in People v. Fierro (1991) 1 Cal.4th 173, 264-265 for the 112 proposition that the testimony and photographs should have been excluded because they did not concern facts of the crime disclosed by evidence received during the guilt phase. (AOB 193.) There, the victim, a store owner, was gunned downoutside the store he owned for 40 years after he and his wife of 50 years, also a victim and witness, were robbed. (/d. at pp. 234-235.) This Court held that the evidence and argumentofstore ownership and marriage were proper victim-impact evidence, and that “none of the remarks was so inflammatoryasto divert the jury’s attention from its properrole or invite an irrational response.” (/d. at p. 235.) Similarly, there was no inflammatory evidence or argumentin this case. The victim-impact evidence and argument consisted of expressions of shock, broken hearts, Diana’s dreams, and some photographsofherlife. Moreover, appellant and Diana conversed casually about her going to school and like matters. (17 RT 3029.) Thus,it is not entirely correct to say that the testimony and photographs admitted into evidence here concernedfacts that had no direct link to the crimein that they were not known or reasonably apparent to the defendantat the time of the capital crimes. (AOB 192-193.) Appellant appears to wantto limit the admissibility of victim-impact evidence to testimonyof percipient witnessesor, alternatively, to a “quick glimpse”into the victim’s life. (AOB 192-193.) But this is not what Justice Rehnquist meant whenhestated: [W]hile virtually no limits are placed on the relevant mitigating evidence a capital defendant may introduce concerning his own circumstances, the State is barred from either offering “a quick glimpseofthe life” which a defendant“chose to extinguish,” Mills v. Maryland, 486 U.S. 367, 397, 100 L. Ed. 2d 384, 108 S. Ct. 1860 (1988) (REHNQUIST,C. J., dissenting), or demonstrating the loss to the victim’s family and to society whichhasresulted from the defendant’s homicide. 113 (Payne, supra, 501 U.S. at p. 822 [emphasis added].) Defendant’s arguments fail under Pollock. There, consistent with our prior cases, we held that a trial court may admit “victim impact testimony from multiple witnesses who were notpresent at the murder scene and whodescribed circumstances and victim characteristics unknownto the defendant. [Citation.]” (Pollock, supra, 32 Cal.4th at p. 1183.) (People v. Zamudio, supra, 43 Cal.4th at p. 364.) In sum, Payne does not limit victim-impact evidence; it embracesit, subject, of course, to the constitutional limitation of undue prejudice that would defeat due process. The entire segmentof the prosecutor’s closing argumentcited by appellant contains facts deduced directly or inferentially from trial testimony and was in no mannerinflammatory and did not, as appellant claims without support, “introduce substantial extraneous emotional matters.” (AOB 195-196.) Neither the quality nor quantity of victim-impact evidence, nor the prosecution’s argument thereon violated the principles set for under California and federal law. Accordingly, this claim fails. XII. THE PROSECUTOR’S PENALTY PHASE ARGUMENT WAS NOT IMPROPER. ANY ERROR WAS HARMLESS Appellant contends that the prosecutor’s penalty phase argument “went beyond the limits of acceptable advocacy by using emotion in order to inflame the jury,” violating appellant’s “constitutional rights to due process, a fair trial, equal protection, and a reliable jury determination on penalty.” (AOB 198.) Respondent disagrees. In any event, any error was harmless. 114 A. Relevant Record At the start of her penalty phase closing argument, the prosecutor told jurors, “it’s a very important decision that you have to make.” (24 RT 3855.) What I wantto do at this point is to remind you that your duty as jurors is to look at everything. You’ve heardall of the evidence in this case and consider the law and cometo a determination as to what you believe is the appropriate penalty in this case. I ask you — I’m going to ask you to simply render a verdict. I want you to render whatever you do renderasa just verdict in this case. This decision you are about to makeis a serious one. (24 RT 3856.) The prosecutor warnedjurors not to automatically count the number of factors in aggravation and mitigation and then vote accordingly. (24 RT 3856.) She told them their decision was a qualitative one as well. She stated: However, to return a judgment of death, each of you must be persuaded that the aggravating circumstancesare so substantial in comparison with mitigating circumstances,that it warrants death instead oflife without parole. That’s the standard for you to follow. (24 RT 3857.) The prosecutor then briefly discussed the factors in section 190.3 and told jurors which onesshe believed did and did not apply to appellant.?! (24 RT 3869-3882.) For example, she argued that factor(b), *! The completelist of factors jurors were told to consider are as follows: (a) The circumstancesof the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances foundto be true pursuant to Section 190.1. (continued...) 115 the presence or absenceofcriminalactivity involving violence, did not apply to appellant because his prior felony convictions did not involve violence. (24 RT 3858-3859.) Similarly, she argued that factor (j), the accomplice factor, did not apply to appellant because he was not an accomplice but the shooter. (24 RT 3873-3874.) Also, she argued that factor(i), appellant’s age, was neither aggravating nor mitigating, but was a neutral factor. (24 RT 3873.) She noted that factor (k) permitted jurors to consider sympathy, mercy, and pity for appellant. (24 RT 3875.) In arguing for death, the prosecutorstated: At somepoint, society drawsa line, society says that when you cross overthat line you don’t deserve to havethe right to live anymore and you haveto ask yourself, have these defendants crossed overthat line? The evidence in aggravationis (...continued) (b) The presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence. (c) The presence or absence of any prior felony conviction. (d) Whether or not the offense was committed while the defendant wasunderthe influence of extreme mental or emotional disturbance. (e) Whetheror not the victim wasa participant in the defendant’s homicidal conduct or consented to the homicidalact. (f) Whetheror not the offense was committed under circumstances which the defendant was reasonably believed to be a moral justification or extenuation for his conduct. (g) Whether or not defendant acted under extreme duress or under the substantial domination of another person. (h) Whetheror notat the time of the offense the capacity of the defendantto appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect, or the affects of intoxication. (i) The age of the defendantat the time of the crime. (j) Whetheror not the defendant was an accomplice to the offense and his participation in the commission of the offense wasrelatively minor. (k) Any other circumstance which extenuates the gravity of the crime even thoughit is not a legal excuse for the crime. 116 overwhelming, but you haveto also weigh that against the factors in mitigation. You would not be doing yourjob as jurors if you do notdothat. (24 RT 3868.) Then later, she added: Whenthe defensetries to impress upon you how horriblelife without parole is, how horrible it’s going to be for these two individuals, I want you to keep these things in mind: Diana Contreras will never see another sunrise or sunset, and she will never watch TV. She will neverlisten to the radio, she will never have another meal, she’ll never be able to write letters to her friends and receive letters from her friends and family. She will never be able to talk to her friends and family on the telephone again. She will never be able to see any of her family again. So howhorribleis life without parole for these two who will be able to do all these things when Diana is dead and can’t do any of those things? If the defense tries to convince you how horriblelife is for these two living in that small cell, you think about Diana whois ina two foot by six foot box becauseofthe actions of these defendants . . . Diana Contreras will never have a chanceto get married, she’ll never finish college or be a pediatrician because of what these individuals did. Whenthe defense asks you to show mercy for these two individuals, I ask you to show the same mercythat they showed Diana Contreras which wasnoneatall. (24 RT 3886-3887.) The prosecutor also explained the role of punishment, by quoting an English Justice: Punishmentis the way in which society expressesits denunciation of wrongdoing and in order to maintain respect for law,it is essential that the punishmentinflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. It is a mistake to consider the objects of punishmentas being deterrent or reformative or preventive and nothing else. The truth is that some crimes are so outrageous that society insists on adequate punishment because the 117 wrongdoerdeservesit, irrespective of whetherit is a deterrent or 22 not.” (24 RT 3888-3889.) The prosecutor then madeherplea. In this case, I’m asking you for a verdict of death because these two deserve it for what they did to Diana Contreras and to her loved ones and to the community. You are the people who decide if they crossed that line drawn by society, and that’s a heavy significant responsibility. You'll be required to be vigilant in your exercise in courage and strength and resolve and maybetears are involved in this. It’s not an easy thing to do, but I submit to you by their actions these two defendants have crossed overthat line and by your verdict you will be telling Mary Stroder and Charles Rountree your actions are indeviable [sic], immoral, death is the appropriate punishmentfor youractions. (24 RT 3889.) The prosecutor closed with the following: Pll leave you with this last comment: Whenthe defense attorneys stand before you and they ask you to exercise mercy,I want you to rememberthis phrase, and the phrase is, ‘Mercy can’t rob justice.” Don’t let mercy for the defendants rob Diana Contreras ofjustice. (24 RT 3889.) B. Analysis Following Payne, supra, 501 U.S. 808, the question to ask concerning a prosecutor’s argument aboutthe victim is whetherit called upon irrelevant facts or led the jury to be overcome by emotion in assessing he appropriate penalty. (People v. Sanders (1995) 11 Cal.4th 475, 550; People v. Raley (1992) 2 Cal.4th 870, 915-916.) Appellant claims that the prosecutor’s quote that “‘it is essential that punishmentinflicted for grave *° This argument wasupheld in People v. Vieira, supra, 35 Cal.4th at p. 298. 118 crimes should adequately reflect the revulsion felt by the great majority of 99 66citizens for them” “prevented the jurors from considering mitigation and reaching an individualized judgment about” him, but he does not explain how so. (24 RT 3889; AOB 200.) Moreover,his citation to Eddings v. Oklahoma (1982) 455 U.S. 104, 105, is inapposite becausethere,the trial court, which wasthe sentencer, “would not consider in mitigation the circumstances of Eddings’ unhappy upbringing and emotional!disturbance” or “consider the fact of this young man’s violent background” despite substantial evidence on these issues. (/d. at p. 109.) That court concluded: In this instance, it wasas if the trial judge had instructed a jury to disregard the mitigating evidence Eddingsproffered on his behalf. The sentencer, and the Court of Criminal Appeals on review, may determine the weightto be given relevant mitigating evidence. But they may notgive it no weight by excluding such evidence from their consideration. (id. at pp. 114-115.) Here, far from preventing the jury from considering factors in mitigation, the prosecutor properly urged jurors to weigh aggravation against mitigation; otherwise, she told them, they would not be doing their job. (24 RT 3868.) Rather than arguing to diminish jurors’ sense of personal responsibility, as appellant claims (Caldwell v. Mississippi (1985) 472 U.S. 320, 328-329 (Caldwell); AOB 200), the prosecutor repeatedly emphasizedto jurors the significance of their responsibility and the serious nature of their decision. (24 RT 3855-3856, 3889.) No Caldwell error occurred. Appellant also claims the “prosecutor’s argument improperly inflamed the jurors’ emotions by suggesting that the death penalty was necessary to society’s well-being.” (AOB 200.) A prosecutor’s appeal to the jury to act as a “conscience of the community”is acceptable unlessit is “specifically designed to inflame the jury.” (United States v. Williams (9th 119 Cir. 1993) 989 F.2d 1061, 1072, quoting United States v. Lester (9th Cir. 1984) 749 F.2d 1288, 1301.) Here, the prosecutor urged the jury to impose death because the defendants deserved death, “they ha[d] crossed over that line.” (24 RT 3889.) This can hardly be viewed as a plea, designed to inflame the jury. Moreover, unlike in the cases appellant cites, the prosecutor did not “use the community role ofjurors to appealto their passions” (AOB 200), suggest “that others were relying on the jurors for protection,” or insinuate “that all murders should be punished with death.” (AOB 201.) And, even if [t]he prosecutor’s appeal . . . was largely aimed at the emotions of the jury, but at the penalty phase ... considerable leewayis given for emotional appealso longasit relates to relevant considerations. (People v. Bittaker (1989) 48 Cal.3d 1046, 1110, fn. 35.) The relevant consideration here was whether appellant’s conduct warranted the death penalty. Appellant arguesthat telling the jury that a death verdict was necessary because of society’s views of serious crime “would have been overwhelmingto the jurors.” (AOB 201.) First, this is not what the prosecutor said. (24 RT 3888-3889.) Second, even if she had suggested that death was necessary, appellant does not explain how that statementis such improper argumentas to overwhelm thejury. Appellant’s final claim here is that the prosecutor improperly contrasted his life in prison with Diana being dead in her grave. (AOB 202.) Appellant points to decisions in other states to support his claim. But in California, Although a jury must never be influenced by passion or prejudice, a jury at the penalty phase of a capital case may properly consider in aggravation, as a circumstanceofthe crime, the impact of a capital defendant’s crimes on the victim’s family, and in so doing the jury may exercise sympathyfor the 120 defendant’s murdervictims and for their bereaved family members. (Pollock, supra, 32 Cal.4th at p. 1195.) Argument as to what Diana will not experience, what she will not share with her family and friends, versus appellant’s continued life, invoked the impact of the murder on the Contreras family, a relevant factor in the penalty determination, and was not an unduly inflammatory appeal to the jury’s emotions. (People v. Riggs (2008) 44 Cal.4th 248, 324.) Indeed, even in Payne, supra, 501 U.S. 808 the prosecutor similarly described what the murderedlittle girl and her surviving brother would never experience. (/d. at p. 816.) Neither is emphasizing the permanencyofthe victim’s death contrasted to life in prison for appellant erroneous as appellant claims. (AOB 204.) Again, he points to authority not binding on this Court. In California, however, [A] prosecutor is given widelatitude during argument. The argument may be vigorousas long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn there from. [Citations.] It is also clear that counsel during summation maystate matters not in evidence, but which are common knowledgeorare illustrations drawn from commonexperience,history orliterature. (People v. Brown, supra, 33 Cal.4th at pp. 399-400.) The prosecutor stated the obvious — Diana will always be dead. This is proper argument. In sum,the prosecutor did not use “irrelevant information or inflammatory rhetoric” to “divert the jury’s attention from its properrole or invite[] an irrational, purely subjective response.” (People v. Harris, supra, 37 Cal.4th at p. 351, internal citations & quotations omitted.) Accordingly, this claim fails. If prosecutorial misconduct occurred, however, there is no cause for reversal. Prosecutorial misconduct during penalty phase argumentis subject to the reasonable possibility standard of prejudice (see People v. 121 Brown (1988) 46 Cal.3d 432, 448) which is the same in substance and effect as the beyond a reasonable doubt standard enunciated in Chapmanv. California, supra, 386 U.S. 18. (People v. Bennett (2009) 45 Cal.4th 577, 605, fn. 13; People v. Wallace (2008) 44 Cal.4th 1032, 1092.) The prosecutor’s argumentis to be viewedin context, not isolation, and with consideration given to the instructions bythe trial court and defense counsel’s argument. (People v. Hinton (2006) 37 Cal.4th 839, 905; People v. Young (2005) 34 Cal.4th 1149, 1221; People v. Jackson, supra, 13 Cal.4th at p. 1238; see also People v. Leonard, supra, 40 Cal.4th at pp. 1416-1418.) The commentsat issue were brief when comparedto the entirety of the prosecutor’s argument. And, as noted above, the prosecutor specifically told jurors that their job required them to weigh aggravating and mitigating factors. Also, defense counsel argued extensively for mitigation andlife in prison. (24 RT 3891-3894; 25 RT 3897-3924.) Finally, prosecutorial argument should not be given undue weight, inasmuchas jurors are warned in advanceit is not evidence andjurors understand argument to be statements of advocates. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1224, fn. 21.) Here, the trial court instructed jurors that counsel’s arguments were not evidence (CALJIC No. 1.02; VI CT 1830; 24 RT 3837.) Given the paucity of allegedly improper argument, the abundance of proper argument from both sides, and a properly instructed jury, it is not reasonably possible that a result more favorable to the defendant would have occurred absent the comments. Accordingly,this claim fails. XIV. THE TRIAL COURT DID NOT IMPROPERLYREFUSE APPELLANT’S REQUESTED INSTRUCTION THAT ONE MITIGATING FACTOR MAYBE SUFFICIENT TO SUPPORTA DECISION AGAINST DEATH Appellant contendsthat the trial court’s refusal to instruct the jury that “a single mitigating factor is sufficient to support a decision against death” 122 undermined the likelihood that jurors understood the process of weighing aggravating and mitigating evidence, thereby depriving him of due process. (AOB 206; VII CT 1949.) Respondent disagrees, as does this Court. A trial court may refuse a proffered instruction that is an incorrect statement of law, is argumentative, is duplicative, or might confuse the jury. (People v. Gurule, supra, 28 Cal.4th at p. 659.) This Court rejected appellant’s claim in People v. Jones (1998) 17 Cal.4th 279 (Jones). There, as here, appellant claimedthat the trial court erred in refusing to give an instruction that one mitigating circumstance may besufficient to support a decision that death is not the proper penalty. (/d. at p. 314.) In rejecting the claim, this Court concluded: The second proposed instruction would have been duplicative: the court instructed the jury to return a verdictoflife imprisonmentwithoutpossibility of parole if it found that the aggravating factors did not substantially outweigh the mitigating factors, if it outweighed thematall. (Ibid.) Appellant’s court gave CALJIC No. 8.88 defining aggravating and mitigating factors, and instructing them on how to weigh them,in pertinent part, as follows: The weighing of aggravating and mitigating circumstances does not mean a mere mechanical counting of factors on each side of an imaginaryscale, or the arbitrary assignment of weights to any of them. You are free to assign whatever moral or sympathetic value you deem appropriate to each andall of the various factors you are permitted to consider. In weighing the various circumstances you determine underthe relevant evidence which penalty is justified and appropriate by considering the totality of the aggravating circumstances with thetotality of the mitigating circumstances. To return a judgment of death, each of you must be persuadedthat the aggravating circumstancesare so substantial in comparison with the mitigating circumstances that it warrants death instead oflife without parole. (VI CT 1862, 1864; 24 RT 3854.) 123 Thus, as in Jones, supra, appellant’s jury was properly instructed on how to weigh the various factors. Therefore, the court could properly refuse appellant’s requested instruction as duplicative. (People v. Gurule, supra, 28 Cal.4th at p. 659.) No error occurred. Appellant attempts to distinguish his case from Jones by noting that the emphasis on But this Court has held that “CALJIC No. 8.88 explains to the jury howit totality’ implies a quantitative judgment.” (AOB 208.) should arrive at the penalty determination” (People v. Perry, supra, 38 Cal.4th at p. 320), it “accurately describes how jurors are to weigh the aggravating and mitigating factors” (People y. Elliot (2005) 37 Cal.4th 453, 488.), and it is the standard penalty-phase concluding instruction describing the sentencing factors for the penalty phase, and doesnotviolate the Fifth, Sixth, Eighth, or Fourteenth Amendments (People v. Moon, supra, 37 Cal.4th at pp. 41-42.) Appellant offers no reason for this Court to revisit its precedents. Accordingly, this claim lacks merit. XV. THE DEATH VERDICTIS NOT DISPROPORTIONATE IN APPELLANT’S CASE Appellant contends that the imposition of the death penalty in this case is unconstitutional because that penalty is reserved for the worst of the worst and not a 22-year-old offender with a minor criminal record, and with a history of emotional and family problems.” (AOB 210.) Respondent disagrees. °3 Appellant made a motion for modification of verdict under section 190.4(e) based upon People v. Dillon (1983) 34 Cal.3d 441 and the mitigating factors discussed herein. (VII CT 2039-2047.) He also moved to reduce the penalty due to intra-case disproportionality. (VII CT 2060- 2069.) The court denied both motions. (VII CT 2141-2144.) Appellant also made a motion for modification of verdict under section 190.4(e) based upon People v. Dillon, supra, 34 Cal.3d 441 and the mitigating factors discussed herein. (VII CT 2039-2047.) He also moved to reduce the (continued...) 124 Uponrequest, this Court reviews facts of a case to determine whether a death sentenceis so disproportionate to a defendant’s culpability so as to violate the California Constitution’s prohibition against cruel or unusual punishment. (People v. Howard (2008) 42 Cal.4th 1000, 1032.) To determine whether a sentenceis cruel or unusual as applied to a particular defendant, a reviewing court must examine the circumstancesof the offense, including its motive, the extent of the defendant’s involvementin the crime, the manner in which the crime was committed, and the consequencesof the defendant’s acts. The court must also consider the personal characteristics of the defendant, including age, prior criminality, and mental capabilities. (People v. Dillon, supra, 34 Cal.3d at p. 479.) If the court concludes that the penalty imposedis “grossly disproportionate to the defendant’s individual culpability” (ibid.), or, stated another way,that the punishment ‘“‘‘shocks the conscience and offends fundamental notions of human dignity’”’ [citation], the court must invalidate the sentence as unconstitutional. (People v. Hines (1997) 15 Cal.4th 997, 1078 [64 Cal. Rptr. 2d 594, 938 P.2d 388].) (People v. Leonard, supra, 40 Cal.4th at pp. 1426-1427.) In need of gas moneyandfundsto reacha relative in Northern California, appellant and Stroder kidnapped and robbed Diana. They compelled her to give them information that would allow them to withdraw moneyfrom her bank account. Appellant then drove her to an isolated location where he shot herthree times at nearly point blank range with a powerful rifle. Afterwards, in possession of Diana’s purse, checkbook, savings account book, ATM card, driver’s license, and car, the defendants continued stealing from Diana’s bank account, paying for several nights at Harrah’s and their marriage in Las Vegas. The newlyweds then enjoyed sometime at the Regency in Denver, Colorado. They stole again from (...continued) penalty due to intra-case disproportionality. (VII CT 2060-2069.) The court denied both motions. (VII CT 2141-2144.) 125 Diana’s bank account in Utah before ultimately being apprehended by authorities in Kansas. Appellant selected for his victim an admittedly small and vulnerable victim. His motive was money. Appellant stole the money, drove the car, and shot Diana Contreras. The consequences of appellant’s conduct took Diana, a young womanuniquein her family’s educational and emotional history, from that family, her friends, and her community. Appellant’s death sentence does not shock the conscience or offend fundamental notions of dignity. (People v. Leonard, supra, 40 Cal.4th at p. 1427.) Asnoted above, however, the court must consider appellant’s personal characteristics, e.g., age, prior criminality and mental capabilities. (People v. Tafoya (2007) 42 Cal.4th 147, 198.) In appellant’s case, these factors do not militate against death. At 22 years old, appellant was mature.”* Uponarrest, he fully confessed, took complete and sole responsibility for all the crimes, and directed his attorney not to implicate Stroder in any way. He even recreated the crimes for detectives. These are the actions of a mature and thoughtful man, not the impulsive actions of an immature one. (AOB 215.) Appellant’s criminal history includes felony convictions for burglary of a non-residence, theft of property therein, and witness tampering on September 18, 1992, for which he was facing three years of prison time. (2 JCT 434-435, 456-457, 517-518.) Appellant also received a felony conviction for forgery on October 16, 1992, for which he wasalso facing three years of prison time. (2 JCT 466-467.) Just over one year later, while on the run from imprisonment, appellant murdered Diana. Respondentfails to see how appellant’s felony criminal conviction record aids his case in this Court. ** Appellant was born on November 13, 1971. (1 CT 16.) 126 Lastly, appellant’s mental capabilities do not help his claim. According to those who knew him best, appellant was helpful and responsible (22 RT 3538-3541; 23 RT 3585), friendly, caring, and personable aroundgirls (22 RT 3546, 3549), a hard worker and goodfriend (22 RT 3555, 3561), and an accomplishedathlete through high school (23 RT 3593-3595). Dr. Byrom found no evidence that appellant was psychotic or clinically sociopathic. He found appellant’s verbal skills to be in the low average range, and his non-verbalskills to be in the high range. (23 RT 3600.) Finally, there was no evidence that appellant was underthe influence of alcohol or drugs, or that he was emotionally or mentally impaired, at the time of Diana’s murder. Forall the above reasons,this Court should find that the penalty in this case is not so disproportionate to appellant’s personal culpability as to warrant reversal of his sentence. (People v. Cox (2003) 30 Cal.4th 916, 970.) XVI. APPELLANT’S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL AT BOTH PHASESIS PROPERLY RAISED IN HABEAS CORPUS Appellant contends that he “was deprived of his fundamentalright to effective assistance of counsel” throughout the proceedings below. He concedes, however, and respondentagrees, that this Court has held that claims of ineffectiveness of counsel must generally be raised by petition for writ of habeas corpus. Appellant indicates that is his intention. (AOB 218.) Therefore, respondent will await the opportunity to addressthis claim in habeaslitigation, assuming the habeaspetition is timely filed. XVII. NO COUNT OR SPECIAL CIRCUMSTANCEHAS BEEN REDUCED OR VACATED; THUS, APPELLANT’S CLAIM IS PREMATURE Appellant argues in the subjunctive, “If this Court reduces or vacates any of the counts or special circumstances, the penalty verdict should be reversed.” (AOB 219.) First, to the extent that appellant challenges the 127 sufficiency of the evidence for the kidnapping conviction andtrue finding on the kidnapping special circumstance, respondent addressedthis in Argument IX. Second,if this Court should satisfy appellant’s wish as to any countorspecial finding, respondentis certain that this Court will then direct the parties to the next step or proper remedy. Therefore, since appellant presents no argumentin this claim, respondent doesnotreply. XVIII. THEREIS NO CONSTITUTIONAL REQUIREMENTFOR INTER-CASE PROPORTIONALITY REVIEW Appellant claims a violation of his Eighth Amendmentright to be free from arbitrary and capricious imposition of a death sentence by the failure to require inter-case proportionality. (AOB 309.) This issue is well-settled. “Inter-case” proportionality review is not required by the federal Constitution and the California Supreme Court has consistently declined to undertakeit. (Pulley v. Harris (1984) 465 U.S. 37; People v. Lindberg (2008) 45 Cal.4th 1, 54; People v. Cook (2007) 40 Cal.4th 1334, 1368.) Moreover, California’s death penalty schemeis not unconstitutional for not requiring inter-case proportionality review. (People v. Jackson (2009) 45 Cal.4th 662, 701.) Accordingly, appellant’s claim fails. XIX. CALIFORNIA’S DEATH PENALTY SCHEME,AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT’S TRIAL, DOES NOT VIOLATE THE UNITED STATES CONSTITUTION. THE TRIAL COURT PROPERLY DENIED APPELLANT’S MOTION TO SUPPRESS. VARIOUS CHALLENGES TO MURDER AND GUILT-PHASE INSTRUCTIONS ARE WITHOUT MERIT. Appellant contends that many features of California’s capital punishment schemeviolate the United States Constitution. Appellant raises these challenges to preserve them for federal review. (AOB 227.) He correctly states that this Court has repeatedly rejected each of these claims. 128 (People v. Jackson, supra, 45 Cal.4th at pp. 699-702.) As such, his contentionsfail. A. Penal Code Section 190.2 Is Not Impermissibly Broad Appellant claims that section 190.2 is impermissibly broad because,at the time ofhistrial, it contained 21 special circumstances and,therefore,it does not narrow the class of murderers eligible for the death penalty. (AOB 228.) This Court has rejected this claim, holding that California’s death penalty statute “does notfail to perform constitutionally required narrowing function by virtue of the numberof special circumstancesit provides or the mannerin which they have been construed.” (People v. Beames, supra, 40 Cal.4th at p. 933.) Also, as noted in Argument VI above, this Court also held that the California death-penalty scheme meets Eighth Amendmentrequirements and is not overbroad based on the numberof special circumstances. (People v. Cornwell, supra, 37 Cal.4th at p. 102.) Thus, this Court should reject this claim. B. Application of Section 190.3(a) Did Not Violate Appellant’s Constitutional Rights. Appellant contendsthat section 190.3, factor (a) is too broadly applied such that the conceptof “aggravating factors” has been applied to almostall features of every murder, violating the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. (AOB 229-230.) Appellant acknowledges, however, that this Court has rejected this claim. Allowing the jury to consider the circumstances of the crime (§ 190.3, factor (a)) does not lead to the imposition of the death penalty in an arbitrary or capricious manner. (People v. Kennedy (2005) 36 Cal. 4th 595, 641; People v. Brown, supra, 33 Cal.4th at p. 401; AOB 230.) This case presents no compelling reason to reconsiderthis holding. 129 C. The Death Penalty Statute and Accompanying Jury Instructions Do Not Fail to Set Forth the Appropriate Burdenof Proof. Appellant contends that California’s death penalty statute and accompanyingjury instructions fail to set forth the appropriate burden of proof in eight ways. (AOB 230.) 1. Constitutionality of Death Penalty Appellant argues that his death sentence is unconstitutional becauseit is not premised on findings made beyond a reasonable doubt. This Court has held otherwise. The death penalty law is not unconstitutional for failing to impose a burden of proof— whether beyond a reasonable doubt or by a preponderance of the evidence — asto the existence of aggravating circumstances, the greater weight of aggravating circumstancesover mitigating circumstances, or the appropriateness of a death sentence. (People v. Hoyos, supra, 4\ Cal.4th at p. 926; People v. Lewis & Oliver (2006) 39 Cal.4th 970, 1066.) Because the California death-penalty law requires a beyond-a-reasonable-doubt standard for proving special circumstances, and then requires the jury to consider and take into account all mitigating and aggravating circumstances in determining whether to impose the death penalty, it is constitutional. (People v. Leonard, supra, 40 Cal.4th at p. 1429; People v. Frierson (1979) 25 Cal.3d 142, 180 [interpreting 1977 death-penalty law].) Underthe California death penalty scheme, once the defendant has been convicted of first degree murder and one or more special circumstances has been found true beyond a reasonable doubt, death is no more than the prescribed statutory maximum for the offense... Because any finding of aggravating factors during the penalty phase doesnot“increase[] the penalty for a crime beyondthe prescribed statutory maximum”(Apprendi, 130 supra, 530 U.S. at p. 490), Ring imposes no newconstitutional requirements on California’s penalty phase proceedings. (People v. Prieto (2003) 30 Cal 4th 226, 263, italics in original.) Appellant acknowledgesthe holding in Prieto but urges this Court to reconsiderit in light ofApprendi v. New Jersey (2000) 530 U.S. 466, Ring v. Arizona (2002) 536 U.S. 584, Blakely v. Washington (2004) 542 U.S. 961, and Cunningham v. California (2007) 549 U.S. 270. (AOB 233-234.) But this Court has already done so, and has concluded, [t]he recent decisions of the United States Supreme Court interpreting the Sixth Amendment’sjury trial guarantee do not compela different result. (People v. Bramit (2009) 46 Cal.4th 1221, 1250, footnote omitted.) In like fashion, this Court should reject appellant’s request to reconsiderits holding in People v. Blair, supra, 36 Cal.4th at 753, that: neither the cruel and unusual punishmentclause of the Eighth Amendment, nor the due process clause of the Fourteenth Amendment, requires a jury to find beyond a reasonable doubt that aggravating circumstancesexist or that aggravating circumstances outweigh mitigating circumstancesor that death is the appropriate penalty. This claim should be rejected. 2. Burden of Proof Appellant contends that his jury should have beeninstructed that the State had the burden of persuasion regarding the existence and weighing of aggravating and mitigating factors, the appropriateness of the death penalty, and a presumptionoflife without parole was an appropriate sentence. (AOB 235.) As he acknowledges, however, this Court has held that capital sentencing is not susceptible to burdens of proof or persuasion because the exercise is largely moral and normative, and thus unlike other sentencing. (AOB 235; People v. Jackson, supra, 45 Cal.4th at p. 694; People v. Lenart (2004) 32 Cal.4th 1107, 1136-1137.) Thus, there is no requirementthat the 131 court instruct the jury that it had to find beyond a reasonable doubtthat aggravating factors outweighed mitigating factors and that death was the appropriate penalty. (People v. Medina (1995) 11 Cal.4th 694, 782; People v. Berryman (1993) 6 Cal.4th at 1048, 1101; People v. Diaz (1992) 3 Cal.4th 495, 569.) Similarly, there is no requirement that the jury be instructed on a presumptionoflife in the penalty phase ofa capital trial that is analogous to the presumption of innocenceat the guilt trial. (People v. Jackson, supra, 45 Cal.4th at p. 701; People v. Perry, supra, 38 Cal.4th at p. 321; People v. Kipp (2001) 26 Cal.4th 1100, 1137.) Appellant also argues that the trial court should haveinstructed the jury that the prosecution had no burden of proof. This Court has also settled this issue. Since California does not specify any burden ofproof, except for other-crimes evidence,the trial court should notinstructat all on the burden of proving mitigating or aggravating circumstances. (People v. Holt, supra, \5 Cal.4th at pp. 682-684; People v. Carpenter (1997) 15 Cal.4th 312, 417-418.) Thus, the trial court need not instruct that “no party bears the burden of proof on the matter of punishment.” (People v. Lewis (2009) 46 Cal.4th 1255, 1319.) This claim, too, should fail. 3. Unanimity and Unadjudicated Criminal Activity Appellant contends that because his death verdict was not premised on unanimousjury findings regarding aggravating factors and unadjudicated criminalactivity, the verdict violates the Sixth, Eighth, and Fourteenth Amendments. (AOB 236-238.) There is no requirementthat the jury unanimously agree on the aggravating circumstancesthat support the death penalty, since aggravating circumstancesare not elements of an offense. (People v. Jackson, supra, 45 Cal.4th at p. 701; People v. Hoyos, supra, 41 Cal.4th at p. 926; People v. Stanley, supra, 39 Cal.4th at p. 963; People v. Medina, supra, 11 Cal.4th at p. 782.) Appellant acknowledges that this Court reaffirmed this holding after the decision in Ring v. Arizona, 132 supra, 536 U.S. at page 584. (See People v. Prieto, supra, 30 Cal.4th at p. 275; AOB 236.) He presents no compelling reasonto revisit the decision. Moreover,it is not necessary to instruct the jury that it must unanimously agree beyond a reasonable doubt that defendant committed each unadjudicated offense. (People v. Anderson, supra, 25 Cal.4th at p. 590; People v. Sims (1993) 5 Cal.4th 405, 462.) Appellant also acknowledgesthat this Court specifically ruled on this issue in People v. Ward (2005) 36 Cal.4th 186, 221-222; AOB 238-239.) As such, his claim should be rejected here, too. 4. The Standardfor the Penalty Determination was not Impermissibly Vague and Ambiguous Appellant contends that the death penalty determination hinged on whetherthe jurors were persuadedthat the aggravating circumstancesare so substantial in comparison with the mitigating circumstancesthat it warrants death instead oflife without parole. (AOB 239; CALJIC No. 8.88; VI CT 1862, 1864; 24 RT 3854.) He argues that the phrase “‘so substantial” is impermissibly broad and doesnot channelor limit the sentencer’s discretion in a mannersufficient to minimize the risk of arbitrary and capricious sentencing. He acknowledges, however,that this Court has held that the requirementthat the jury find the aggravating circumstances“so substantial” in comparison with the mitigating circumstancesthat it “warrants death” is not vague or directionless. (People v. Chatman (2006) 38 Cal.4th 344, 409; People v. Arias (1996) 13 Cal.4th 92, 170.) As such, this claim fails. 5. The Instructions Properly Instructed the Jury to Determine Whether Death was Warranted Appellant contends that CALJIC No.8.88 failed to instruct jurors that the ultimate question in the penalty phase of a capital case is whether death 133 is the appropriate penalty. (AOB 239.) He acknowledgesthat this Court has held that CALJIC No.8.88 is not defective in requiring the jury to determine whether death is “warranted” as opposed to “appropriate.” (People v. Rogers (2009) 46 Cal.4th 1136, 1179; People v. Watson (2008) 43 Cal.4th 652, 702.) Accordingly, this claim fails. 6. CALJIC No. 8.88 Properly Instructed the Jury on How to Weigh Aggravating and Mitigating Factors Appellant contends that CALJIC No.8.88 does not direct the jury to impose a sentenceoflife in prison without parole whenthe mitigating circumstances outweigh the aggravating circumstances. (AOB 240-241.) He acknowledgesthat this Court has held the contrary,i.e., that CALJIC No.8.88 is not unconstitutional for failing to inform the jury that if it finds the circumstances in mitigation outweigh those in aggravation,it is required to impose a sentenceoflife without possibility of parole. (People v. Rogers, supra, 46 Cal.4th at p. 1179; People v. Moon, supra, 37 Cal.4th at p. 42, citing People v. Dennis, supra, 17 Cal.4th at p. 552.) Accordingly, this claim should be rejected. 7. The Instructions Did Not Violate the Sixth, Eighth, and Fourteenth Amendments by Failing to Inform the Jury Regarding the Standard of Proof and Lack of Need for Unanimity as to Mitigating Circumstances Appellant contendsthat the jury instructions violated the Sixth, Eighth, and Fourteenth Amendmentsbyfailing to inform the jury regarding the standard of proof and lack of need for unanimity as to mitigating circumstances. (AOB 241.) This Court has held, however, that CALJIC No. 8.88 does not reduce the prosecution’s burden of proof generally, andit is not unconstitutional for failing to assign and allocate a burden of proof 134 of beyond a reasonable doubtor to inform the jury who bears the burden of proof. (People v. Moon, supra, 37 Cal.4th at p. 43.) Similarly, as for instructing regarding unanimity, this Court has ruled that the phrasing of standard penalty-phase instructions did not support a conclusion that the jury would misconstrue those instructions to require unanimity before finding a mitigation circumstance. Thus, the trial court was not required to instruct the jury that unanimity not required for finding of mitigation circumstance. (People v. Phillips (2000) 22 Cal.4th 226, 239.) Again, this claim should fail. 8. There is no Requirementthat the Trial Court Instruct the Penalty Jury on the Presumption of Life Thetrial court told jurors during voir dire that there was no presumption for either death orlife imprisonment without possibility of parole. (2 RT 153-154, 280.) Appellant claims the court erred by not giving his requested instruction on this issue during the penalty phase. (AOB 243.) But, CALJIC No. 8.88 is “not unconstitutional for failing to inform the jury there is a presumptionoflife.” (People v. Moon, supra, 37 Cal.4th at p. 43, citing People v. Maury (2003) 30 Cal.4th 342, 440.) Accordingly, this claim should be rejected. D. Failing to Require the Jury to Make Written Findings Does Not Violate Appellant’s Right to Meaningful Appellate Review Appellant contendsthat the failure to require written or other specific findings by the jury deprived him ofhis rights under the Sixth, Eighth, and Fourteenth Amendments to the federal Constitution, as well as his right to meaningful appellate review. (AOB 245.) As acknowledged, this Court has rejected this claim, holding that CALJIC No. 8.88 is not unconstitutional for failing to require written findings so asto facilitate “meaningful appellate review.” (People v. Moon, supra, 37 Cal.4th at p. 135 43, citing People v. Williams (1997) 16 Cal.4th 153, 276.) Therefore, this claim should be rejected. E. The Instructions on Mitigating and Aggravating Factors Did Not Violate Appellant’s Constitutional Rights Appellant contendsthat the instructions on mitigating and aggravating factors violated his constitutional rights because the use ofrestrictive adjectives in thelist of potential mitigating factors prevented the jury from giving full effect to his mitigating evidence, they failed to delete inapplicable sentencing factors, and they did not specify that certain factors wererelevant only as mitigating factors. This Court has settled these issues. The inclusion in the list of potential mitigating factors of such adjectives as “extreme” and “substantial” in CALJIC No. 8.85 (VI CT 1852-1853) did not prevent the jury from considering mitigating factors in violation of appellant’s constitutional rights. As appellant acknowledges, this Court rejected this argument in People v. Avila, supra, 38 Cal.4th at page 614. (AOB 246; People v. Jackson, supra, 45 Cal.4th at p. 700.) Appellant presents no compelling reason to reconsider the decision. The failure to omit from CALJIC No. 8.85 factors that were inapplicable to appellant’s case did not confuse jurors or prevent them from makinga reliable penalty determination, as this Court concluded in People v. Cook (2006) 39 Cal.4th 566, 618. (People v. Rogers, supra, 46 Cal.4th at p. 1179.) Reconsideration of that holding is not warranted. This Court has held thatthe trial court need not instruct jurors that certain sentencing factors in CALJIC No.8.85, i.e., (d)-(h), and Gj), were relevant only as possible mitigating factors. (People v. Hillhouse, supra, 27 Cal.4th at p. 509; VI CT 1852-1853.) Again, reconsideration is not warranted in this case. 136 F. California’s Death Penalty Scheme Does Not Violate Equal Protection by Failing to Allow Depositions of Prosecution Witnesses Appellant contends that California’s death penalty schemefails to allow depositions of the prosecution’s witnesses, thereby treating him less favorably than a defendantin civil proceedings, violating his procedural rights under the equal protection clause. (AOB 248-252.) He acknowledgesthat this Court has rejected this claim. (AOB 252; People v. Manriquez (2005) 37 Cal.4th 547, 590.) Reconsideration is not warranted in this case. G. The Trial Court Properly Denied Appellant’s Motion to Suppress His Confessions Under Mirandav. Arizona, supra, 384 U.S. 436 Appellant twice waivedhis constitutional rights under Mirandav. Arizona, supra, 384 U.S. 436. (17 RT 2996, 3011-3012.) Neither appellant’s age nora failure to advise him that he faced the death penalty invalidated those waivers, thereby necessitating the suppression ofhis confession. Appellant acknowledgesthat this Court has rejected this claim. (AOB 253; People v. Sanders (1990) 51 Cal.3d 471, 512-513.) That should end the matter. H. The Jury was Properly Instructed on First-Degree Murder. Appellant was charged with willful, unlawful, deliberate, premeditated murder,in violation of section 187, subdivision (a), which did not specify the degree of murder. (11 CT 463.) The jury convicted him of first-degree murder, “as chargedin the first count of the Information.” (VI CT 1723.) Appellant contends that convicting him of the “uncharged”first- degree murderviolated his rights to due process, a fairtrial, a jury trial, equal protection, and reliable jury determinations on guilt, the special circumstance and penalty. (AOB 254.) Appellant acknowledgesthat this 137 Court has held that a defendant may be convicted offirst-degree murder even though the Indictment or Information charged only malice-murderin violation of section 187. (AOB 255; People v. Hughes (2002) 27 Cal.4th 287, 368-370.) Reconsideration is not warranted. I. Failure to Instruct Jurors That They Were Required to Agree Unanimously on a Theory of First-Degree Murder WasNot Unconstitutional. Appellant claimsthat the trial court failed to instruct jurors that they must agree on a theory offirst-degree murderin order to find him guilty thereof, thereby violating his constitutional rights. (AOB 255-256.) He acknowledgesthat this Court has rejected this claim in People v. Carey (2007) 41 Cal.4th 109, 132-133. (AOB 256; People v. Geier (2007) 41 Cal.4th 555, 592.) Reconsideration is not warranted. J. The Jury Was Properly Instructed That It Could Not Return a Verdict of Second-Degree Murder UnlessIt Unanimously Acquitted Appellant of First-Degree Murder. Thetrial court instructed the jury with CALJIC No.8.75, in pertinent part, as follows” The court cannot accept a verdict of guilty of second degree murder [as to Count[s] One] unless the jury unanimously finds and returns a signed verdict form of not guilty as to murder of the first degree. (VI CT 1633.) Appellant claims that this “acquittal first instruction” precludesfull jury consideration of lesser-included offenses, and thereby violates his constitutional rights. (AOB 257.) He acknowledgesthat this Court has rejected this claim. (AOB 257; People v. Nakahara (2003) 30 Cal.4th 705, 715.) Reconsideration is not warranted. 138 K. A Series of Standard Guilt-Phase Instructions Did Not Undermine the Requirement of Proof Beyond a Reasonable Doubtin Violation of Appellant’s Constitutional Rights Thetrial court instructed the jury with CALJIC Nos. 2.01 [circumstantial evidence], 2.02 [sufficiency of circumstantial evidence to prove specific intent or mental state, 2.21.1 [discrepancies in witness testimony], 2.22 [weighing conflicting testimony], 2.27 [testimony by one witness], 2.51 [motive], 8.83 [circumstantial evidence for special circumstances], and 8.83.1 [special circumstances — sufficient of circumstantial evidence to prove required mental state]. (VI CT 1573- 1574, 1582-1586, 1646, 1657-1660.) Appellant contends that these pattern instructions violated the requirement of proof beyond a reasonable doubt. (AOB 258.) Appellant acknowledgesthat this Court has rejected each of these claims. (AOB 259; People v. Howard, supra, 42 Cal.4th at p. 1006; People v. Friend (2009) 47 Cal.4th 1, 53.) Reconsideration is not warranted. XX. APPELLANT’S DEATH SENTENCE DOES NOT VIOLATE INTERNATIONAL LAW. Appellant contends that his death sentence violates “international law, covenants, treaties and normsthat bind the United States as the highest law of our land.” (AOB 260-275.) As respondent argued in Argument VII. B., this Court has repeatedly rejected this and related claims. Appellant also argues, however, that this Court should apply a standard adopted by the United Nations Economic and Social Council that allows a death verdict only if there is clear and convincing evidence “leaving no room for alternative explanation ofthe facts.” (AOB 269.) But appellant fails to explain how doing so would changethe analysis or result 139 in this case, especially where the jury had the opportunity to consider, and reject, an accidental shooting via counsel’s argument and CALJIC No. 8.83.1 on the mentalstate for the special circumstances, as argued above in Argument V. Moreover, the jury considered accident under a reasonable doubt standard, not a clear and convincing standard. It was instructed to convict only if there was a reasonable wayto interpret the circumstantial evidence. The jury found there was. Appellant also argues that the jury selection procedures renderedhis trial fundamentally unfair and violated his right to an impartial jury under international standards. (AOB 270-271.) Respondent addressed this issue in Arguments II and III. Appellant further argues that use of the redacted confessions denied him a right to a fair hearing. (AOB 272-274.) Respondent addressed this issue in Argument IV. Respondentalso addressed, in Arguments V through VII and XIX,appellant’s claims that the trial court gave numerousinstructions that diminished the reasonable doubt standard, lowered the prosecution’s burden of proof, and denied him the defense of accidentat the guilt phase. (AOB 274.) Finally, respondent addressed, in Arguments XI, XII, and XV, appellant’s claims that the admission of victim impact evidence while excluding evidence that some of Diana’s family members thoughtlife in prison was appropriate resulted in death sentence that was disproportionate to his character, mental state, and personal responsibility. (AOB 274-275.) Accordingly, this claim fails. XXI.NO CUMULATIVE ERROR OCCURRED Appellant contends that even if none ofthe errors he identified was prejudicial standing alone, the cumulative effect of the errors undermines confidencein the integrity of both phasesof trial. (AOB 276.) But, where the claimsof error are defective, the defendant has presented nothing to cumulate. (People v. Staten, supra, 24 Cal.4th at p. 464.) Here, appellant’s 140 claimsof errors have failed, and he cannotprevail on his argumentthat the cumulative effect of errors made duringtrial deprived him ofhis right to a fair trial. Accordingly, this claim fails and reversal is not warranted. CONCLUSION For the foregoing reasons, respondent respectfully asks this Court to affirm appellant’s convictions and judgmentof death. Dated: February 18, 2010 FR1996XS0002 95037587.doc Respectfully submitted, EDMUND G. BROWN JR. Attorney General of California DANER. GILLETTE Chief Assistant Attorney General MICHAELP, FARRELL Senior Assistant Attorney General ERIC CHRISTOFFERSEN Deputy Attorney General KATHLEEN A. MCKENNA Supervising Deputy Attorney General SAVE LESLIE W. WESTMORELAND Deputy Attorney General Attorneysfor Respondent 14] CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S BRIEFusesa 13 point Times New Romanfont and contains 41,973 words. Dated: February 18, 2010 EDMUNDG. BROWN JR. Attorney General of California LESLIE W. WESTMORELAND Deputy Attorney General Attorneys for Respondent DECLARATION OF SERVICEBY U.S. MAIL Case Name: People v. Rountree - CAPITAL CASE No.: $048543 I declare: I am employed in the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 yearsof age or older and not a party to this matter. ] am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplacedin the internal mail collection systemat the Office of the Attorney General is deposited with the United States Postal Service that same dayin the ordinary course of business. On February 19, 2010, I served the attached RESPONDENT’S BRIEFbyplacing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 2550 Mariposa Mall, Room 5090, Fresno, CA 93721, addressed as follows: Peter R. Hensley Attorney at Law 315 Meigs Road, #A-382 Santa Barbara, CA 93109 California Appellate Project (SF) representing appellant HENSLEY 101 Second Street, Suite 600 (2 copies) San Francisco, CA 94105 Governor’s Office The Honorable Edward R. Jagels Legal Affairs Secretary District Attorney State Capitol, First Floor Kern County District Attorney's Office Sacramento, CA 95814 1215 Truxtun Avenue Bakersfield, CA 93301 County of Kern Superior Courts Building Court of Appeal of the State of California Superior Court of California Fifth Appellate District 1415 Truxtun Avenue 2424 Ventura Street Bakersfield, CA 93301-4172 Fresno, CA 93721 I declare under penalty of perjury under the lawsof the State of California the foregoing is true and correct and that this declaration was executed on February 19, 2010, at Fresno, California. Lynda Gonzales Caen SLygpbe Declarant Signature FR1996XS0002 95037808 .doc