PEOPLE v. NELSON (SERGIO DUJUAN)

Respondent’s Brief

Cal.April 17, 2006

SO 42° 6 SUPREME COURT COPYy IN THE SUPREME COURTOF THE STATE OF CALIFORNIAUPEire C PEOPLE OF THE STATE OF CALIFORNIA, Fedene, 17 2006 Plaintiff and Respondent, soda} Ohicp, Cia Vv. a SERGIO D. NELSON, CAPITAL CASE Defendant and Appellant. Los Angeles County Superior Court No. KA019560 The Honorable Clarence Stromwall, Judge RESPONDENT?’S BRIEF BILL LOCKYER Attorney General of the State of California ROBERT R. ANDERSON Chief Assistant Attorney General PAMELA C. HAMANAKA Senior Assistant Attorney General JOHN R. GOREY Deputy Attorney General SHARON E. LOUGHNER Deputy Attorney General State Bar No. 197598 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 897-4916 Fax: (213) 897-6496 Email: DocketingLAAWT@do}j.ca.gov Attomeys for Plaintiff and Respondent DEATH PENALTY TABLE OF CONTENTS Page STATEMENT OF THE CASE 1 STATEMENT OF FACTS 2 I. GUILT PHASE 2 A. Introduction 2 B. Prosecution Evidence 3 1. Appellant’s Work History At Target 3 2. The Promotion Opportunity 4 3. Appellant Fails To Receive The Promotion 5 4. The Day Before The Murders 8 5. The Murders 9 6. Events Following The Murders 11 7. The Autopsies And Crime SceneInvestigation 14 8. Appellant’s Arrest And Statements To The Police C. Defense Evidence 1. Testimony Regarding Events Preceding The Murders And The Day Of The Murders Testimony Regarding Target And Appellant’s Work Habits Testimony Regarding Appellant’s Friendship With Karen Homer’s Daughter, Valerie 17 21 21 22 24 TABLE OF CONTENTS(continued) Page 4. Testimony Regarding Appellant’s Relationship With Karen Homer 26 5. Testimony Regarding Appellant’s Mental Health 28 a. Opinions Of Appellant’s Friends And Co- Workers Regarding His Depression 28 b. Medical Testimony 30 D. Rebuttal Evidence 34 Il. PENALTY PHASE 37 A. Prosecution Evidence 37 1. The Murders Of Shirley And Thompson 37 2. Victim Impact 37 B. Defense Evidence | 38 ARGUMENT 42 I. THE TRIAL COURT PROPERLY REJECTED APPELLANT’S REQUEST FOR JURY INSTRUCTIONS CONCERNING HEAT OF PASSION BECAUSE NO SUBSTANTIAL EVIDENCE SUPPORTED THE THEORY THAT APPELLANT WAS PROVOKED INTO MURDERING THE VICTIMS 42 A. The Relevant Proceedings 42 B. The Applicable Law 45 C. Legal Analysis 47 ul Il. Il. TABLE OF CONTENTS(continued) Page D. Harmless Error 53 E. No Due Process Or Federal Constitutional Error 55 THE TRIAL COURT PROPERLY REFUSED APPELLANT’S PROPOSED PINPOINT INSTRUCTIONS ON PROVOCATION 56 A. The Relevant Proceedings 57 B. The Applicable Law 57 C. Legal Analysis 58 D. Harmless Error 59 THE TRIAL COURT PROPERLY ADMITTED CRIMINALIST ELIZABETH DEVINE’S TESTIMONY REGARDING THE SEQUENCE OF SHOTS AT THE MURDER SCENE 61 A. Waiver 61 B. The Relevant Proceedings 62 1. The Prosecutor’s Offer OfProofAnd The Defense Objection 62 2. The Prosecution’s Direct Examination 62 3. The Defense Voir Dire 64 4. The Trial Court’s Ruling 64 5. The Expert’s Opinion 65 C. The Applicable Law 67 ill IV. TABLE OF CONTENTS(continued) D. Legal Analysis E. Harmless Error THE MODIFIED VERSION OF CALJIC 2.02, AND THE INSTRUCTION COMBINING CALJIC NOS. 3.31 AND 3.31.5, DID NOT RELIEVE THE JURY FROM FINDING BOTH THE SPECIFIC INTENT AND THE MENTAL STATE OF FIRST DEGREE MURDER A. Waiver B. Legal Analysis THE TRIAL COURT PROPERLY INSTRUCTED THE JURY WITH CALJIC 2.70 A. The Relevant Proceedings B. The Applicable Law C. Legal Analysis THE TRIAL COURT PROPERLY DID NOT ORDER A COMPETENCY HEARING BECAUSE THERE WAS NO SUBSTANTIAL EVIDENCE THAT APPELLANT WAS INCOMPETENT TO STAND TRIAL A. The Relevant Proceedings 1. The May 15, 1995 Hearing 2. The June 28, 1995 Hearing 3. The July 5, 1995 Hearing IV Page 68 71 73 73 74 79 79 80 81 83 83 83 86 88 VIL. VI. IX. TABLE OF CONTENTS(continued) Page B. The Applicable Law 88 C. Because There Was No Substantial Evidence Of Incompetence, The Trial Court Properly Did Not Hold A Competency Hearing 89 CALJIC 3.32 PROPERLY INSTRUCTED THE JURY TO CONSIDER APPELLANT’S ALLEGED MENTAL DISORDERS IN DETERMINING THE ISSUES OF DELIBERATION, INTENT TO_ KILL, MALICE, AND PREMEDITATION 95 A. The Relevant Proceedings 95 B. TheInstruction Did Not Compel The Jury To Ignore Evidence Of Mental Disease 96 C. The Term “And/Or” Did Not Render The Instruction Confusing 98 SUFFICIENT EVIDENCE SUPPORTED THE LYING-IN-WAIT FIRST DEGREE MURDER THEORY AND THE LYING-IN-WAIT SPECIAL CIRCUMSTANCES 100 A. The Relevant Proceedings 101 B. The Applicable Law 102 C. Legal Analysis 103 THE TRIAL COURT PROPERLY INSTRUCTED THE JURY ON EFFORTS TO SUPPRESS EVIDENCE AND CONSCIOUSNESSOF GUILT 108 TABLE OF CONTENTS(continued) Page A. Legal Analysis 109 B. Harmless Error 110 X. THE TRIAL COURT PROPERLY INSTRUCTED THE JURY WITH CALJIC NO. 2.51 112 A. Waiver 112 B. The Instruction Did Not Allow The Jury To Determine Guilt Based On Motive Alone 113 C. The Instruction Did Not Lessen The Prosecutor’s Burden OfProof Or Violate Due Process 114 D. TheInstruction Did Not Shift The Burden OfProof To Imply Appellant Had To Prove Innocence 116 XI. CALJIC NO. 2.90 IS CONSTITUTIONAL 118 XII. THE REASONABLE DOUBT INSTRUCTION AND OTHER RELATED INSTRUCTIONS PROVIDED TO THE JURY DID NOT DILUTE THE PROSECUTION’S BURDEN OF PROOF 120 A. The Claim Has Been Waived 120 B. CALJIC No. 2.90, When Combined With CALJIC Nos. 2.01, 2.02, 8.83, And 8.83.1, Did Not Undermine The Prosecution’s Burden Of Proof 121 C. Other Standard Instructions — CALJIC Nos. 1.00, 2.22, 2.27, 2.51 And 8.20 — Did Not “Vitiate” The Reasonable Doubt Standard 124 vi TABLE OF CONTENTS(continued) Page XII THE TRIAL COURT PROPERLY INSTRUCTED THE JURY ON FIRST DEGREE MURDER 129 XIV. THE TRIAL COURT PROPERLY REFUSED THE DEFENSE REQUEST TO INSTRUCT THE JURY ON VOLUNTARY MANSLAUGHTER BASED ON MENTAL ILLNESS 132 A. The Relevant Proceedings 132 B. The Applicable Law ~ 133 C. Legal Analysis 133 D. Harmless Error 135 XV. THE TRIAL COURTDID NOT COERCE THE DEATH VERDICT 136 A. The Applicable Law 137 B. Legal Analysis 138 1. The Trial Court’s Statements To The Jury After Learning Of The Possible Deadlock Did Not Coerce The Jury Or Endorse The Majority Position 138 2. The Jury Questionnaire Did Not Coerce The Jury Towards A Verdict 145 3. The Jurors’ Responses To The Questionnaire Did Not Cause The Trial Court To Invade The Sanctity Of The Jury 148 Vil TABLE OF CONTENTS(continued) Page 4. Questions 5 And 6 Of The Questionnaire Did Not Instruct The Jurors To Ignore Their Own Philosophical, Moral, And Religious Beliefs 150 5. The Trial Court Did Not Refer To The Jurors As A “Problem”Or “Threaten” Them 151 6. The Trial Court Properly Questioned The Foreman To Determine If Juror Misconduct Had Occurred 156 7. The Trial Court Properly Questioned Two Additional Jurors 160 8. The Trial Court’s Instruction To The Jury Following The Dismissal Of A Juror Was Not Coercive 162 C. Conclusion . 168 XVI. THE TRIAL COURT PROPERLY DISCHARGED JURORHALL BECAUSE SHE MISREPRESENTED AND CONCEALED MATERIAL INFORMATION DURING VOIR DIRE 169 A. The Relevant Proceedings 169 B. Waiver 170 C. The Applicable Law 170 D. Legal Analysis 171 XVII. INTERCASE PROPORTIONALITY REVIEW OF DEATH SENTENCESIS NOT REQUIRED BY THE FEDERAL CONSTITUTION 176 Vill XVIII. XIX. TABLE OF CONTENTS(continued) Page CALIFORNIA’S DEATH PENALTY STATUTE AND INSTRUCTIONS ARE NOT UNCONSTITUTIONAL 177 A. Absence Of Reasonable Doubt Standard Is Not Unconstitutional 177 B. No Burden OfPersuasion In The Penalty Phase 178 C. Absence Of Unanimity Requirement Regarding Aggravating Factors Is Not Unconstitutional 179 THE TRIAL COURT PROPERLY INSTRUCTED THE JURY WITH CALJIC NO. 8.88 180 THE INSTRUCTIONS REGARDING MITIGATING AND AGGRAVATING FACTORS IN SECTION 190.3 AND THE APPLICATION OF THESE FACTORS DID NOT RENDER APPELLANT’S DEATH SENTENCE UNCONSTITUTIONAL 183 A. Section 190.3, Factor (a), Does Not Result In The Arbitrary And Capricious Imposition Of The Death Penalty 183 B. Trial Court Did Not Need To Delete Sentencing Factors From CALJIC No.8.85 184 C. The Trial Court Did Not Err ByNot Delineating Which Penalty Factors Could Only Be Mitigating 185 D. Adjectives Used In Conjunction With Mitigating Facts Do Not Act As Unconstitutional Barriers To Consideration Of Mitigation 186 1X TABLE OF CONTENTS(continued) Page E. Written Findings On Aggravating Factors Are Not Required 187 F. Appellant’s Equal Protections Rights Were Not Implicated By Absence Of The “Previously Addressed Procedural Safeguards” 187 XXI. CALIFORNIA’S USE OF THE DEATH PENALTY DOES NOT VIOLATE INTERNATIONAL LAW OR THE EIGHTH AMENDMENT 189 XXII. THE PENALTY-PHASE- SPECIAL INSTRUCTIONS WERE PROPERLY REJECTED 190 A. The Trial Court Properly Rejected The Defense- Requested Special Instructions Because They Were Argumentative Or Duplicative 190 1. The Mercy, Compassion, And Sympathy Instructions 191 2. The Deterrence Instruction 192 3. The Lingering Doubt Instructions 193 4. The Character And BackgroundInstruction 194 B. Harmless Error 195 XXIII. CUMULATIVE ERROR DOES NOT WARRANT REVERSAL 196 CONCLUSION 197 TABLE OF AUTHORITIES Cases Allen v. United States (1893) 157 U.S. 675 Andres v. United States (1948) 333 U.S. 740 Apprendi v. New Jersey (2000) 530 U.S. 466 Beck v. Alabama (1980) 447 U.S. 625 Blakely v. Washington (2004) 542 U.S. [124 S.Ct. 2531, 159 L.Ed.2d 403] Brasfield v. United States (1926) 272 U.S. 448 Buell v. Mitchell (6th Cir. 2001) 274 F.3d 337 Chapman v. California (1967) 386 U.S. 18 Drope v. Missouri (1975) 420 U.S. 162 Early v. Packer (2002) 537 U.S. 3 Godinez v. Moran (1993) 509 U.S. 389 Page 140, 143, 145, 146, 148 168 131, 178, 179 55 178 142 189 54, 60, 72 88 145 88 Xi TABLE OF AUTHORITIES (continued) Page Jackson v. Virginia (1979) 443 U.S. 307 102 Jiminez v. Myers (9th Cir.1993) 40 F.3d 976 143, 144 Jones v. United States (1999) 526 U.S. 227 178 Lowenfield v. Phelps (1988) 484 USS. 231 144 Pate v. Robinson (1966) 383 U.S. 375 88 People v. Allen (1986) 42 Cal.3d 1222 176 People v. Anderson (1990) 52 Cal.3d 453 140 People v. Arias (1996) 13 Cal.4th 92 187 People v. Ayala (2000) 24 Cal.4th 243 177 People v. Barber (2002) 102 Cal.App.4th 145 159 People v. Barnett (1998) 17 Cal.4th 1044 82, 118, 186 People v. Benson (1990) 52 Cal.3d 754 192 People v. Berry (1976) 18 Cal.3d 509 42,51 xii TABLE OF AUTHORITIES (continued) People v. Berryman (1993) 6 Cal.4th 1048 People v. Blair (2005) 36 Cal.4th 686 People v. Bolden (2000) 29 Cal.4th 515 People v. Box (2000) 23 Cal.4th 1153 People v. Boyette (2002) 29 Cal.4th 381 People v. Bradford (1997) 15 Cal4th 1229 People v. Breaux (1991) 1 Cal.4th 281 People v. Breverman (1998) 19 Cal.4th 142 People v. Brown (1988) 46 Cal.3d 432 People v. Burgener (1986) 41 Cal.3d 505 People v. Carpenter (1997) 15 Cal.4th 312 People v. Carter (1968) 68 Cal.2d 810 People v. Carter (2003) 30 Cal.4th 1166 Xill Page 60 91-94 189 177, 182, 196 109, 110, 181 91, 94 138, 150 45, 46, 50, 54 195 157, 160, 162 67, 103, 107 138, 143, 148, 149, 154 181 TABLE OF AUTHORITIES (continued) People v. Cash (2002) 28 Cal.4th 703 People v. Castillo (1997) 16 Cal.4th 1009 People v. Catlin (2001) 26 Cal.4th 81 People v. Ceja (1993) 4 Cal4th 1134 People v. Cleveland (2001) 25 Cal.4th 466 People v. Cleveland (2004) 32 Cal.4th 704 People v. Coffman (2004) 34 Cal.4th 1 People v. Cole (1982) 31 Cal.3d 568 People v. Cole (2004) 33 Cal.4th 1158 People v. Compton (1971) 6 Cal.3d 55 People v. Cox (1991) 53 Cal.3d 618 People v. Cox (2003) 30 Cal.4th 916 People v. Crew (2003) 31 Cal.4th 822 XiV Page 115, 116 98 67, 102, 182, 186, 196 104, 106, 107 158 112-114, 157 109 145 46 170 176, 187 177, 178 124, 125, 128 TABLE OF AUTHORITIES (continued) Page People v. Cunningham (2001) 25 Cal.4th 926 185, 186 People v. Dailey (1959) 175 Cal.App.2d 101 91 People v. Davenport (1995) 11 Cal.4th 1171 67 People v. Diaz (1992) 3 Cal.4th 495 130 People v. Dillon (1983) 34 Cal.3d 441 130 People v. Dixon (1979) 24 Cal.3d 43 168 People v. Duncan (1991) 53 Cal.3d 955 182 People v. Earp (1999) 20 Cal.4th 826 54 People v. Edwards (1991) 54 Cal.3d 787 104 People v. Eggers (1947) 30 Cal.2d 676 80 People v. Engleman (2002) 28 Cal.4th 436 150, 158 People v. Ervin (2000) 22 Cal.4th 48 98 People v. Fairbank (1997) 16 Cal.4th 1223 189 AV TABLE OF AUTHORITIES(continued) People v. Farnam (2002) 28 Cal.4th 107 People v. Frye (1998) 18 Cal.4th 894 People v. Gainer (1977) Cal.3d 835 People v. Gallego (1990) 52 Cal.3d 115 People v. Gammage (1992) 2 Cal.4th 693 People v. Ghent (1987) 43 Cal.3d 739 People v. Grant (1988) 45 Cal.3d 829 People v. Green (1980) 27 Cal.3d 1 People v. Griffin (2004) 33 Cal.4th 536 People v. Guiton (1993) 4 Cal.4th 1116 People v. Gurule (2002) 28 Cal.4th 557 People v. Gurule (2002) 28 Cal.4th 557 People v. Gutierrez (2002) 28 Cal.4th 1083 xvi Page 69, 186, 194 89, 91, 124, 125 141, 144, 145, 147 89 127 189 93 106 131 80, 106, 107 103 190 57, 58, 103, 190 TABLE OF AUTHORITIES (continued) Page People v. Guzman (1988) 45 Cal.3d 915 91 People v. Hayes (1990) 52 Cal.3d 557 178 People v. Hayes (1999) 21 Cal.4th 1211 88, 89, 91, 92 People v. Heard (2003) 31 Cal.4th 946 118 People v. Hedgecock (1990) 51 Cal.3d 395 158, 162 People v. Hill (1998) 17 Cal.4th 800 60 People v. Hillhouse (2002) 27 Cal.4th 469 73, 99, 104, 107, 112, 113, 115, 116, 120, 182, 186, 189 People v. Hines (1997) 15 Cal.4th 997 192 People v. Holloway (2004) 33 Cal.4th 96 109, 110 People v. Hudson (1981) 126 Cal.App.3d 733 80 People v. Hughes (2002) 27 Cal.4th 282 78, 82, 110, 123, 129-131, 192, 193 People v. Hyde (1985) 166 Cal.App.3d 463 51 XVil TABLE OF AUTHORITIES (continued) Page People v. Jackson (1996) 13 Cal4th 1164 72, 110, 181, 182 People v. Jenkins (2000) 22 Cal.4th 900 183, 189 People v. Jennings (1991) 53 Cal.3d 334 . 119 People v. Johnson (1992) 3 Cal.4th 1183 182, 187 People v. Jones (2003) 29 Cal.4th 1229 72, 195 People v. Jones (2003) 30 Cal.4th 1084 177, 178 People v. Keenan (1988) 46 Cal.3d 478 144, 145, 155, 171 People v. Kelly (1992) 1 Cal.4th 495 107 People v. Kipp (1998) 19 Cal.4th 353 179 People v. Koontz (2002) 27 Cal.4th 1041 54, 88 People v. Lasko (2000) 23 Cal.4th 101 46 People v. Laudermilk (1967) 67 Cal.2d 272 89, 91 People v. Lee (1999) 20 Cal.4th 47 46, 50, 52, 59 XVili TABLE OF AUTHORITIES (continued) People v. Lenhart (2004) 32 Cal.4th 1107 People v. Lewis (1990) 50 Cal.3d 262 People v. Lewis (2001) 25 Cal.4th 610 People v. Lucas (1997) 55 Cal.App.4th 721 People v. Lucero (2000) 23 Cal.4th 692 People v. Lujan (2001) 92 Cal.App.4th 1389 People v. Malone (1988) 47 Cal.3d 1 People v. Marshall (1996) 13 Cal.4th 799 People v. Marshall (1997) 15 Cal4th 1 People v. Martinez (2003) 31 Cal.4th 673 People v. Maurer (1995) 32 Cal.App.4th 1121 People v. Maury (2003) 30 Cal.4th 342 People v. Mayfield (1997) 14 Cal.4th 668 Page 178, 182 54 118, 177, 191 46 187 46, 50 81 51, 170 58 177, 178, 187 115 123, 126, 127, 164, 166, 167, 183, 186 57 XIX TABLE OF AUTHORITIES (continued) People v. Michaels (2002) 28 Cal.4th 486 People v. Millwee (1998) 19 Cal.4th 96 People v. Monterroso (2004) 34 Cal.4th 743 People v. Montiel (1993) 5 Cal.4th 877 People v. Moon (2005) 37 Cal.4th 1 People v. Morrison (2004) 34 Cal.4th 698 People v. Musslewhite (1998) 17 Cal.4th 1216 People v. Nakahara (2003) 30 Cal.4th 705 People v. Nicolaus (1991) 54 Cal.3d 551 People v. Ochoa (1998) 19 Cal.4th 353 People v. Ochoa (2001) 26 Cal.4th 398 People v. Osband (1996) 13 Cal.4th 622 People v. Pennington (1967) 66 Cal.2d 508 XX Page 178 181 19] 127 104 178, 179 193 109, 124-127, 178 110 186 119, 189, 196 123 88 TABLE OF AUTHORITIES (continued) People v. Perez (1992) 2 Cal.4th 1117 People v. Price (1991) 1 Cal.4th 324 People v. Pride (1992) 3 Cal.4th 195 People v. Prieto (2003) 30 Cal.4th 226 People v. Proctor (1992) 4 Cal.4th 499 People v. Ramos (2004) 34 Cal.4th 494 People v. Ray (1996) 13 Cal.4th 313 People v. Rios (2000) 23 Cal.4th 450 People v. Robinson (2005) 37 Cal.4th 592 People v. Rodrigues (1994) 8 Cal.4th 1060 People v. Rodriguez (1986) 42 Cal.3d 730 People v. Rowland (1992) 4 Cal4th 238 People v. Saille (1991) 54 Cal.3d 1103 Page 58 145, 168, 171 137, 149, 168 71, 116, 176, 178, 179, 186, 187, 191, 192 138, 143, 168 89, 91, 93 123 46 69 67 142, 145, 147, 168 67 57, 58, 133, 134 XXi TABLE OF AUTHORITIES (continued) Page People v. Sakarias (2000) 22 Cal.4th 596 54, 55 People v. Samayoa (1997) 15 Cal.4th 795 189 People v. San Nicolas (2004) 34 Cal.4th 614 109 People v. Sanchez (1995) 12 Cal.4th 1 193 People v. Sanders (1995) 11 Cal.4th 475 61, 170 People v. Sandoval (1992) 4 Cal.4th 155 118 People v. Saunders (1993) 5 Cal.4th 580 177 People v. Scott (1997) 15 Cal.4th 1188 186 People v. Seaton (2001) 26 Cal.4th 598 196 People v. Sheldon (1989) 48 Cal.3d 935 137, 149, 150 People v. Silva (1988) 45 Cal.3d 604 107 People v. Slaughter (2002) 27 Cal.4th 1187 193 People v. Smith (2003) 30 Cal.4th 581 178, 191 XXil TABLE OF AUTHORITIES (continued) People v. Smithey (1999) 20 Cal.4th 936 People v. Snow (2003) 30 Cal.4th 43 People v. Stanley (1995) 10 Cal.4th 764 People v. Staten (2000) 24 Cal.4th 434 People v. Steele (2002)27 Cal.4th 1230 People v. Superior Court (Lujan) (1999) 73 Cal. App.4th 1123 People v. Thomas (1990) 218 Cal.App.3d 1477 People v. Turner (1994) 8 Cal.4th 137 People v. Ward (2005) 36 Cal.4th 186 People v. Watson (1956) 46 Cal.2d 818 People v. Webb (1993) 6 Cal.4th 494 People v. Welch (1999) 20 Cal.4th 701 People v. Williams (1969) 71 Cal.2d 614 XXili Page 76, 77, 97, 98 113, 114, 176, 178, 187, 189 185, 187 193 58 104 173, 175 119, 127 58 71, 98, 99, 110, 135 119 177 128, 186 TABLE OF AUTHORITIES(continued) Page People v. Williams (1997) 16 Cal4th 153 183 People v. Wilson (1992) 3 Cal.4th 926 59 People v. Witt (1915) 170 Cal. 104 130 People v. Wright (1988) 45 Cal.3d 1126 119 People v. Yeoman (2003) 31 Cal.4th 93 . 109, 185, 187 People v. Zapien (1993) 4 Cal.4th 929 143 Pulley v. Harris (1984) 465 U.S. 37 176 Ring v. Arizona (2002) 536 U.S. 584 178, 179 Telopea v. California (1994) 512 U.S. 967 183 Victor v. Nebraska (1994) 511 U.S. 1 118, 123 Constitutional Provisions Cal. Const., art. I, § 13 100 Cal. Const., art. I, § 15 88 XX1V US. US. US. US. TABLE OF AUTHORITIES (continued) Const., 5th Amend. Const., 6th Amend. Page 42, 55, 83 42, 55, 108, 170, 184, 186 Const., 8th Amend. 55, 56, 61, 95, 108, 176, 183, 185, 186, 189 Const., 14th Amend. Statutes Evid. Code, § 352 Evid. Code, § 801 Evid. Code, § 805 Evid. Code, § 1150 Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Code, § 22, subd. (b) Code, § 28, subd. (a) Code, § 187 Code, § 187, subd.(a) Code, § 188 Code, § 189 Code, § 190.2 Code, § 190.2, subd. (a)(3) Code, § 190.2, subd. (a)(15) Code, § 190.3 XXV 42, 55, 56, 61, 88, 95, 100, 108, 131, 170, 176, 185, 186 67 67 67 158 134 134 1, 129, 130 46 46 129 177 183 Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. TABLE OF AUTHORITIES (continued) Code, § 190.3, subd.(a) Code, § 190.3, subd. (b) Code, § 190.3, subd. (k) Code, § 192 Code, § 1089 Code, § 1096a Code, § 1140 Code, § 1239, subd. (b) Code, § 1360, subd. () Code, § 1367, subd.(a) Code, § 1368 Code, § 1368, subd.(a) Code, § 1368, subd. (b) Code, § 12022.5, subd.(a) Other Authorities CALJIC No. 1.00 CALJIC No. 1.03 CALJIC No.2.00 CALJIC No. 2.01 XXVI Page 183, 193 177 193 46 170 119 137 2 88 88 83, 88, 91 88 88 1 120, 124, 151 151 110 110, 120, 121, 123, 124 CALJIC No. CALJIC No. CALJIC No. CALJIC No. CALJIC No. CALJIC No. CALJIC No. CALJIC No. CALJIC No. CALJIC No. CALJIC No. CALJIC No. CALJIC No. CALJIC No. CALJIC No CALJIC No. CALJIC No. CALJIC No. CALJIC No. TABLE OF AUTHORITIES(continued) 2.02 2.03 2.06 2.21.2 2.22 2.27 2.51 2.52 2.70 2.71 2.80 2.82 2.90 3.31 3.31.5 3.32 8.10 8.20 8.25 Page 73-75, 77, 110, 120, 121, 123 108-110 108-110 123 120, 123-126 120, 124, 127 112-117, 120, 124 108-110, 124 79-81 79, 80 70 70 114, 118, 120, 121, 123, 126 73, 75, 77, 78, 114 73, 75, 77, 78 95-98, 134 114 74, 76, 77, 120, 124, 127, 128 101-103 XXVil CALJIC No. CALJIC No. CALJIC No. CALJIC No. CALJIC No CALJIC No CALJIC No. CALJIC No CALJIC No CALJIC No. CALJIC No. CALJIC No CALJIC No TABLE OF AUTHORITIES(continued) 8.42 8.44 8.50 8.73 . 8.81.15 .8.81.15.1 8.83 . 8.83.1 . 8.84.1 8.85 8.88 .17.31 . 17.40 XXVIII Page 43 43 44 56-60 101, 102 104 120, 121, 123 120-123 151 184, 186, 192-194 147, 180-182, 191, 195 81 166 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, S048763 V. CAPITAL SERGIO D. NELSON, CASE Defendant and Appellant. STATEMENT OF THE CASE On November18, 1993, the Los Angeles County District Attorney filed an information charging appellant in count 1 with the murderofRobin Shirley (Pen. Code, § 187), and in count two with the murder ofLee Thompson (Pen. Code, § 187). As to each count, the information further alleged the special circumstances ofmultiple murder (Pen. Code, § 190.2, subd.(a)(3)) and lying- in-wait (Pen. Code, § 190.2, subd. (a)(15)). Each count also alleged the personal use ofa firearm (Pen. Code, § 12022.5, subd. (a). (ICT 149-151.) On November 10, 1994, the guilt trial commenced with jury selection. (1CT 230.) On December 13, 1994, the jury found appellant guilty on both counts of murder, and found the special circumstance and firearm-use enhancements true. (2CT 365-366.) The penalty phase began on December 14, 1995. (2CT 367.) The jury failed to reach a verdict, and the trial court declared a penalty mistrial on December 20, 1994. (2CT 417.) On July 5, 1995, the penalty phase retrial commenced with jury selection. (2CT 435.) On August 14, 1995, thetrial court dismissed oneofthe jurors for misconduct. (2CT 470.) On August 15, 1995, the jury returned a death verdict (2CT 526.) On September 7, 1995,the trial court denied appellant’s motions to ‘modify the verdict and for a new trial, and imposed a sentence of death. (2CT 547.) This appeal is automatic. (Pen. Code, § 1239, subd.(b).) STATEMENT OF FACTS I. GUILT PHASE A. Introduction This is a case about a man who murdered his coworkers after being denied a promotion. Before the killings, appellant was an enthusiastic, dedicated worker who enjoyed his job at Target. After he applied for a promotion, he repeatedly bragged to his coworkers that he would receive the position. When Robin Shirley, an employee with more experience, was selected instead ofhim, he wascrestfallen. He cried to his supervisor, worried that his fellow workers were taunting him, and stopped putting any effort into his job. Appellant wasso upset, he confronted Shirley, angrily telling her that she did not deserve the promotion. During the confrontation, Target employee Lee Thompson,tried to defend Shirley, and appellant later threatened him, stating that he would “get him back one day.” The manager disciplined appellant for his behavior, and he quit Target the next day. Appellant then embarked on a methodical plan to seek revenge against the woman who had taken the promotion he so desired. Twenty days after quitting, he dressed completely in black, armed himself with his holster and fully loaded nine- millimeter handgun, and rode his bicycle, which he had painted completely black, directly to Target in the middle of the night. He went to the exact location where he knew Shirley and Thompson, the victims, waited in the Target parking lot each day for the store to open, sneaked up on them from behind asthey sat in a car, and shot them both execution style multiple times. Appellantthen fled the scene, hide the holster, gun, and bicycle, andlied to the police about his involvementin the case. B. Prosecution Evidence 1. Appellant’s Work History At Target On May4, 1992,appellant was hired at the Target store in La Verne located on Foothill between White and Town Center. (SRT 1482.) Appellant worked on the “push team” unloading trucks and stocking shelves. (4RT 1121.) At that time, he was living with 37 year-old Karen Homer in San Bermadino. The two were involved in an intimate relationship and had been living together since November of 1991. (4RT 1117-1118, 1208.) A few weeksafter appellant was hired at Target, Horneralso started workingthere, althoughin a different capacity. (4RT 1121.) Appellant and Hornerstopped living together in November or December of 1992. Appellant movedinto his grandmother’s house in Pomona. Horner also moved to Pomona, but she did not live with appellant. Aroundthis time, Horner became a memberof the push team at Target with appellant. While working together, appellant and Horner remained friends.” (4RT 1118-1122, 1230.) Alejandro Sandoval workedasthe “push team leader.””’ He supervised appellant and the other 15 to 20 membersof the push team. The push team worked under receiving manager Kristin Strickland. (4RT 1120-1121, 1130, 1408-1409, 1454.) Appellant wasan “excellent worker,greatlistener, always performing[,] always hustling, doing as he [was] told.” (SRT 1410.) He was 1. According to Homer, she and appellant socialized together and occasionally were intimate. (4RT 1118-1122.) 2. Sandoval and appellantalso socialized outside of work and played basketball together about two times a week. (SRT 1421.) 3 eagerto learn, ambitious, and he regularly assumed additional responsibilities. (5RT 1457.) On one occasion, appellant acted as the push team leader while Sandoval was on vacation. (SRT 1433-1434.) Attimes, appellantraised his voice and acted demanding towardshis co- workers. He sometimes assumedthe posture of a supervisor despite not having that position; appellant’s demeanorin this regard caused conflicts. Strickland and Sandoval spoke to appellant about these issues and offered him suggestions about ways to improvehis interpersonal skills. Appellant seemed receptive to the advice and he continued to work hard. (SRT 1410-1411, 1433-1434, 1457- 1458, 1460-1462.) 2. The Promotion Opportunity In June of 1993, Sandoval received a promotion to department manager ofhome decor. Asa result, his position as push team leader was vacant. The vacancy wasadvertised to employees in mid-June on a bulletin boardinsidethe store. Strickland and the store manager had the responsibility ofhiring the new push team leader. (SRT 1408-1410, 1435, 1454-1455.) On June 18, 1993, appellant applied for the position. Push team member Robin Shirley (count 1) also applied for the promotion. (SRT 1412-1413, 1456, 1482.) Shirley was an excellent worker. She had workedat Target since April 22, 1991, and she got along well with her co-workers. Shirley was outgoing and a strong leader. She and appellant were “real good friends at work,” and she occasionally gave appellant a ride to work.” (SRT 1411-1412, 1457; 6RT -1785A.) Even though Sandoval wasnot responsible for deciding who would receive the promotion,hetold appellant that he thought appellant would get the job. Appellant believed that he would be awarded the promotion. He regularly told the other membersofthe push team that they should not apply for the team leader position because he was going to receive the promotion. Appellant expressed to Karen Hornerthat he wanted the position. (4RT 1125; 5RT 1414- 1415.) 3. Appellant Fails To Receive The Promotion ManagerKristin Strickland seriously considered both appellant and Shirley for the push team leader position. Strickland and Target’s general manager ultimately chose Shirley for the promotion because she had better interpersonal skills than appellant, was able to deal effectively with different types of people, and had theability to inspire workers. (SRT 1458-1459.) The day before the official announcement regarding the promotion, Stricklandprivately advised appellantthat he would notreceive the position. Strickland wantedto increase appellant’s self-esteem and help him understand that many people are not promotedthefirst time that they apply. Appellant expressed concern that his co-workers would make fun of him. He told Strickland that he no longer wanted to work at Target. Strickland encouraged 3. Karen Horner thought that “something was going on” between appellant and Robin Shirley. Horner formedthis opinion because appellant and Shirley frequently socialized at work and she knew that appellant had beento Shirley’s house. Horner wasjealousof Shirley. Appellant and Shirley did not invite Horner to eat lunch with them andthis upset Horner. (4RT 1215-1216, 1235.) Horner did nottell anyoneat Target that she and appellant previously had a romantic relationship, and she thoughtthat appellantalso did nottell any of the Target employees about their past. (4RT 1231.) 5 appellant not to give up and told him that she felt he had the drive and ‘éagemness necessary for gaining a promotion someday. She explained that she had not been promoted onherfirst attempt. Appellant called Strickland the next day at homeandtoldher that he did not intend to quit. He reported for work on his next scheduled day, July 11, 1993. (SRT 1462-1466.) On July 11, 1993, at approximately 6:30 a.m., Strickland announced over the store loudspeakerthat Shirley received the promotion. Some members of the push team taunted and teased appellant because he had been bragging that he would get the job. (SRT 1417-1419, 1431, 1445; 6RT 1785A.) After not receiving the promotion, appellant’s performance at Target steadily declined and the conflicts he was involved with increasedin severity. (SRT 1522-1523.) Appellant acted “down”and “not happy.” (4RT 1128.) He told Karen Horner that he was not going to workas hard as he had previously, and Homertold appellant that he should have been promoted because he was quicker and knew the job better than Shirley. (4RT 1127, 1129, 1133-1134, 1136.) Appellant’s work performance dropped noticeably. “[H]e was.. . real slow, sluggish, didn’t move too much,”and he no longer volunteered for extra work. (SRT 1419-1420.) Appellant was depressedall ofthe time. He keptto himself, and his friendly relationship with Shirley ended. Shirley asked Karen Strickland for advice regarding how she should handle appellant’s performance issues. (SRT 1419-1420, 1512, 1523) About one week after Shirley received the promotion, Sandoval was working in the receiving area when appellant walked into the room. He appeared angry and told Sandoval that he deserved the promotion. Then, appellant started to cry. About two and a half weeks later, when the two men 4, Appellant submitted a form indicating that he intendedto resign and that his last day ofwork would be July 10, 1993. However, appellant changed his mind and continued working at Target. (SRT 1484-1486.) 6 were alone again in receiving, Sandovalasked appellantifhe could do anything ‘fo help. Appellant remained quiet and did not respond. (SRT 1421-1424.) On August 23, 1993, about six weeks after Shirley had received the promotion, Lee Thompson (count2) started working at Target. (SRT 1525- 1526.) Thompson’s friend, Robert Comeau began working at Target on September 4, 1993. The two men had beenfriends for one-and-half years and they were both membersofthe push team.2 (SRT 1375-1377; 6RT 1786.) A few days after Comeaustarted working, he wasin the stockroom with Shirley and Thompson when appellant entered the room. Appellant appeared aggravated and angry. Appellant told Shirley that he deserved the promotion and that she “did not deserve the dollar a [sic] hour raise or promotion.” Thompsonsaid to appellant, “Why don’t you leave,stop - - it’s like bugging her, like harassing,”andalso stated that he did not want any problemstostart. When Comeau moved forward from where he had been standing behind Shirley, appellantleft the stockroom. (SRT 1375-1384, 1392.) A few days later, Comeau wasin the housewares area ofthe stockroom when he heardthe radio “flick” on and off, and heard Thompson speaking in an upset tone. Comeau also heard another voice that he could not identify. When Comeau walked closer to the voices, he saw Thompson and appellant standing face to face a few feet from each other. Appellant told Thompsonthat he “will get him,he will get him back oneday.” It appeared as though the men were aboutto physically fight. Comeau told Thompson notto fight because 5. According to Robert Comeau, a group ofworkers, including himself, Lee Thompson,and Shirley, often spent time together during lunch and breaks. Sometimes Shirley and Thompsonate lunch alone. (SRT 1405-1406.) 7 they would all get fired, and then he pushed Thompson away from the area.* ‘(SRT 1384-1387.) The next day, September 11, 1993, appellant received a “phase two warning notice” for engaging in “conduct that causes the work place to be intolerable for other workers.” Strickland had learned from various employees that appellant had been a problem in the workplace. She explainedto appellant that he was receiving the notice because of negative comments he madein the workplace about Shirley. Throughout the meeting appellant sat with his arms crossed. Asto the specific allegations, he either denied knowing about the incidentsor denied that he engaged in the conduct. Appellant signed the phase two warning whichstatedthat ifhe did not comply with company requirements within 15 days he would be terminated. That same day, appellant submitted a resignation form and that wasthat last day he worked at Target. (SRT 1486- 1493, 1496-1499.) 4. The Day Before The Murders On October 1, 1993, appellant was living with his cousin, Alexander Cosey, and other family members in a house on Lebee Street in Pomona. Cosey and appellant shared a bedroom. At approximately 2:00 p.m., appellant’s friend, Johnny Lopez,arrived at appellant’s house so they could install a radio in Lopez’s truck. Cosey arrived homeat about this time and wentinto his bedroom. Appellant entered the room for less than two minutes sometime between 4:00 and 4:30 p.m. (4RT 1287-1291, 1324.) Appellant and Lopez workedat the house for a few hours and then went to Lopez’s house where they continued working on the truck. Sometime 6. Comeau waslater fired from Target for his participation with other employees in a fraudulent credit card scam. He signed an agreement to repay Target for the loss, and at the time oftrial, was making payments towards that debt. (SRT 1387-1389.) between 7:00 and 8:00 p.m., Lopez drove appellant backto his house,and then dropped him off at Ontario High Schoolfor football practice. Throughouttheir timetogether that day, appellant appeared “normal.” (4RT 1325-1327.) Later than evening, at approximately 8:00 p.m., Cosey saw appellant in the living room watching a movie with Cosey’s mother andsiblings. Appellant appeared “normal”that evening. Cosey left the house at 10:00 p.m. He spent the night at a friend’s house and whenhereturnedat 6:00 a.m. appellant was not at the house. (RT 1292-1293.) 5. The Murders On October 2, 1993, at approximately 3:30 a.m., Richard Hart.and an acquaintance were at a 7-Eleven store near Foothill and Town Center Drive in La Verne when Hart heard a soundsimilar to gunfire emanating from the area of Target. He heard the sound between 5 and 8 times. When he looked towardsTarget, he saw a “muzzle flash” coming from the area where appellant” wasstanding next to Robin Shirley’s silver truck and a brown Plymouth that belonged to Lee Thompson’s mother. (4RT 1141; SRT 1377, 1446-1447.) Appellant appeared to be firing the gun into the Plymouth. After firing, 7. Attrial, appellant’s counsel conceded that appellant was the shooter andthat he killed the victims. (IORT 2811-2862.) In addition, Hart identified appellant as the shooter in court during thetrial and duringa live, six-person lineupat the Los Angeles Countyjail on October 14, 1993. Atthelive lineup, Hart noted that appellant’s hair was shorter than on the nightof the murders whenit stuck out of his baseball cap and hung downto his shoulders. (3RT 1039, 1044-1048.) 8. Shirley regularly parked her truck in that area of the Target parking lot. Shirley and Lee, as well as other employees whoarrived early, would gather in that area andsit in their cars while talkingorlisteningto the radio. It was not uncommonfor Shirley and Thompson tobe together outside the store before work. (4RT 1142; 5RT 1377, 1404, 1446.) 9 appellant walked about 10 or 15 feet away from the car towards the sidewalk in front of Target. Hart heard a “gurgling” or “rumbling” noise coming from the area of the cars. Appellant immediately walked back to the car andfired two or three more rounds into the Plymouth. Appellant again walked towards the sidewalk. When Hart’s acquaintance yelled out, “You shouldn’t have done it that way,” appellant turned and Hart sawhis face. Appellant was wearingall black clothing and a black baseball cap. When appellant arrived at the end of sidewalk, he appeared to either adjust his pants or put something into his pants. Hart called 911 from a payphone in the 7-Eleven parking lot. (@RT 1027- 1040.) Police Officer Larry Ross responded to the radio call regarding the shooting at Target. When he arrived he observed Robin Shirley in the front passengerseat ofthe brown Plymouth. Her head wastilted towardstheleft, her body leaned towards the center console, and she had a bullet wound to her head. Lee Thompson wasin the driver’s seat, slumped over with his bloody head onthe right floorboard. The driver’s seat was somewhatreclined. All of the car doors were closed. Both of the front windows wererolled up and the tworear windowswereeachrolled about halfway down. Officer Ross smelled and saw smokefrom recent gunfire inside the car. The radio was on and the car keys were in the ignition. After checking Shirley and Thompsonfor vital signs, Officer Ross concludedthat they were dead. Officer Ross photographedthe victims’ bodies to record their positions in the car. Later, when the coroner removedthe victims from the car, Officer Ross noted that Shirley wore a fanny pack with her wallet and identification inside, and that Thompsonhada wallet in his back pocket. Noneofthe victims’ personal items appeared to have been disturbed. Once the victims’ bodies were removed from the Plymouth, it was impoundedat the La Verne Police Department. (4RT 1080-1088, 1090, 1092; 5RT 1578, 1581.) 10 Sergeant Carlton Williams respondedto the murdersceneat Target and observed a man resemblingappellant?’ traveling southbound on the westside of White Avenue on a dark black G.T. bicycle.” When Sergeant Williams illuminated the manonthebicycle with a spotlight, he abruptly made a U-turn and quickly rode northbound on White Avenue. Sergeant Williams pursued the bicyclist for approximately one and a halfmiles. When the bicyclist reached a dirt field, he abandoned the bicycle. Sergeant Williams exited his car as the bicyclist ran across the field and disappearedinto a commercial complex. The bicyclist was not found, but Sergeant Williams confiscated the bicycle. (4RT 1102-1114.) 6. Events Following The Murders Karen Hornerarrived for work at Target at 4:30 a.m. (4RT 1140.) She saw the crime scene and heard a rumorthat two people had been killed. (4RT 1140, 1174.) A co-worker named Carlos commented to Hornerthat appellant may have been involvedin the incident. (4RT 1 174.) At approximately 5:30 a.m., Homer asked manager Karen Stricklandifshe could use the telephone so 9, At trial, Sergeant Williamstestified that he could notidentify the man on the bicycle. However, he testified that appellant’s physical stature was consistent with the man whofled from him on the bicycle on October 2, 1993. (4RT 1113-1114.) 10. The bicycle belonged to appellant’s cousin, Alexander Cosey. Cosey,his brother, and appellant used the bicycle. (4RT 1309-13 10.) Prior to the murders, the bicycle had been in Michelle Horner’s backyard, but she did not want it there anymore, so she asked her mother-in-law, Karen Horner, to have appellant remove it. Michelle Homer’s husbandhadpainted the bicycle green and it hadflat tires. (4RT 1242-1245.) A couple of weeks before the murders appellant paintedthe bicycle black using paint that Karen Horner had purchased. (4RT 1194-1195.) Appellant also owned a mountain bicycle that was at Cosey’s houseat the timeofthe trial. (4RT 1310.) 11 that she could locate appellant. Horner was shaking and crying. Strickland allowed Hornerto use the telephone in the receiving office to maketwocalls. Homertold Strickland that she wantedto leave Target, and Strickland advised her to have someonepick her up because she was so upset. (SRT 1449-1452.) Horner called Alex Cosey and asked him to pick her up because she wanted to leave work to look for appellant. (4RT 1145-1146, 1148-1149, 1164-1165, 1175-1176, 1288.) Horner was extremely nervous andfrantic. She told Cosey that two people were deadat Target. (4RT 1294-1295.) Coseytold Hornerthat he had not seen appellant. (4RT 1175, 1288, 1294.) Horner then called Johnny Lopez, who told her that he had not seen appellant. Horner sounded scared during the conversation. (4RT 1177, 1328-1329.) At that same time, Cosey called Lopez and said that he thought something might have happenedto appellant. (4RT 1327-1328.) Lopez picked up Cosey in Lopez’s mother’s Toyota Corolla, and they drove to Target where they picked up Horner. (4RT 1296, 1329-1330.) At Horner’s request, they droveto the area ofWhite and First Streets where Horner had seen police activity as she was driving to work earlier that morning. They then drove to a pay phoneat a 7-Eleven on Dudley Street where Lopez called appellant’s pager at approximately 7:24 am. (4RT 1178-1183, 1297-1299, 1330-1335; 6RT 1791-1793.) At that same time, appellant appeared acrossthe street. He was wearing a dark baseball cap and dark clothing’ His shirt looked dusty as if it had been on the ground. Horner approached appellant and asked where he had been, but he did not answer her question. When Horner told him that there were two dead people at Target, appellant responded, “Who? Robin and Lee?” (4RT 1183-1186, 1301, 1335-1337, 1340.) 11. Cosey and Lopeztestified that most of appellant’s clothes were dark. (4RT 1314-1315, 1355.) 12 Horner and appellant then drove with Cosey and Lopez towards appellant’s house on Leebe Street located approximately six miles from Target. (ART 1203, 1299-1302, 1341; 6RT 1805.) Homer and appellant sat in the backseat ofthe vehicle. While in the car, Homer asked appellant where his gun was, and he respondedbypulling downhis waistband and showing her where he had it concealed. Horner had previously seen the gun and a black nylon holster that appellant owned.(4RT 1187-1189.) At appellant’s direction, Lopez drove onbackstreets towards appellant’s house until appellant told him to stop at the railroad tracks behind his house. Appellant exited the car, and walked along the railroad tracks towardsthe backofhis house.(4RT 1189- 1191, 1337-1340, 1350.) Appellant had the gun with him whenheleft the car, and as he exited, Horner observed what appeared to be the straps of the black holster. (ART 1192, 1195-1196.) Homer, Cosey, and Lopez then droveto the front of appellant’s house. Coseyentered the houseandretrieved a cordless phone so that Horner could call her daughter-in-law, Michelle. Appellant was inside the house. While Lopez and Horner were alone in the car, Hornerstarted talking about the need 12. Alexander Cosey gave appellant the gun in June of 1993after the Cosey family wasthreatened by a local gang. (4RT 1316-1320.) Cosey saw appellant with the gun a couple of weeks before the murders and, on other occasions, he had seen the gun underappellant’s pillow. (4RT 1308-1309.) Johnny Lopez hadseen appellant with a nine-millimeter gun in June of 1993. Healso saw a dark-colored holster that appellant owned. (4RT 1343-1344, 1360.) Appellant’s cousin, Philip Davis, thought that appellantcarried the gun for protection. (SRT 1695-1697.) 13. Horner and Cosey contradicted Lopez’s testimony that appellant requested to be dropped off at the railroadtracks; they each claimedthatit was their idea to leave appellant at the railroad tracks. (4RT 1202, 1302-1303.) However, Lopeztold the police on October 2, 1993, that appellant askedto be droppedoffat the railroad tracks and confirmedthis fact during his testimony at trial. (4RT 1350.) 13 to.create an alibi for appellant. She asked Lopez if he knew anygirls that would lie and say that they had been with appellant that night. Lopez told Hornerhe did not wantto be involvedin creating an alibi for appellant. (4RT 1192-1193, 1304-1307, 1341-1343.) Appellant stayed home and watchedtelevision for the remainder of the day. (SRT 1649.) When Coseyreturned to the house at 6:00 p.m., appellant wasin the bedroom watching television. (4RT 1307-1308.) 7. The Autopsies And CrimeScene Investigation On the day of the murders, Detective Dale Nancarrow recovered seven silver expended shell casings from the following locations in and around the Plymouth:(1) on top ofa pair ofsocks that were on the back seat ofthe car; (2) underneath the socks that were on the back seat of the car; (3) underthe seat near the left rear floor board; (4) on the rear seat; (5) on top of a black and white plaid jacket that was laying on the back seat; (6) on the driver’s seat behind Thompson’s slumped over body; and (7) outside of the car on the ground, directly behind the rear quarter panel of the vehicle. An expended bullet was found on the front passenger seat behind Shirley’s body, and a second wasdiscoveredinside the front passenger side door panel. (SRT 1575- 1589.) On October 4, 1993, Detective Pickwith discovered appellant’s black nylon holster hidden in some bushesin the area near the railroad tracks off RidgewayStreet where appellant had exited the Toyota Corolla on October2, 1993. On October 5, 1993, Community Service Officer William Witzka discovered appellant’s silver, Tarus nine-millimeter semi-automatic handgun, buried in sand under a cinderblock in the same area which was approximately 335 feet from appellant’s house. When Detective Nancarrow seized the gun, he discovered a magazinein the holder anda live round in the chamber. The 14 casings on the ammunition inside the gun weresilver. Later, fingerprint expert Detective James O’Brien foundsix live rounds ofammunition in the magazine. He did not recover any fingerprints from the gun. (4RT 1362-1366; 5RT 1591- 1594, 1598, 1607, 6RT 1787-1790, 1796-1798.) Appellant’s cousin, Philip Davis, identified the gun attrial as belonging to appellant. (SRT 1693-1694.) Based on a diagram depicting the car and location ofthe shell casings, firearms examiner Deputy Van Horn opinedthatit would bepossible for the casing found outside the car to land on the groundif the gun had been fired from close to the open left rear window into the Plymouth. The other casing would have landed insidethe car if the weapon wasfired from moreinside the car. Deputy Dwight Van Horn determinedthatthe seven live rounds found in appellant’s gun and twoofthe shell casings recovered from the murder scene were Winchester nine-millimeter caliber, marketed as black Talon ammunition. He was unable to make an absolute comparison between the shell casing and the gun. However, the widthsofthe land and groove measurements on the gun were the same as the expended bullets. All seven of the expended nine- millimeter caliber cartridge cases came from the gun and the expendedbullets were consistent with having come from thecartridge cases. The test results were conclusive as to whether the expended bullets recovered by the coroner came from the gun. (SRT 1658-1692.) October 3, 1993, Los Angles County Senior Deputy Medical Examiner Dr. James Ribe performed autopsies on Robin Shirley and Lee Thompson. He concludedthat the causeofdeath for each victim was multiple gunshot wounds. Shirley suffered three gunshot wounds:(1) an entrance woundto her upper, middle forehead that was inflicted from a distance of one to four inches(the bullet traveled from the top ofher head downthroughherbrain,slightly to the right, and lodged in herthroat); (2) an entrance woundtotheleft, backside of her neck (the bullet traveled throughher spinal cord and neck, then exited on 15 the right side ofher lower jaw); and (3) a grazing wound onthetopofthe left - shoulder(the bullet traveledin a left to right direction). Thefirst two gunshots were concurrent causes of death and killed Shirley within seconds or mmutes. (SRT 1544-1558, 1572.) Thompsonsuffered five gunshot wounds: (1) an entrance wound to the left temple that wasinflicted from a distance of one-half an inch to 24 inches (the bullet traveled behindthe left eye socket, through the brain, and exited in the right, upper back of the head); (2) an entrance wound below theleft shoulder blade in the upperleft back (the bullet traveled upwards and lodged between the left shoulder blade and back); (3) an entrance woundto the left back, several inches below wound numbertwo(the bullet traveled sharply upward throughtheleft lung and neck until it lodgedin the nasal cavity); (4) an entrance wound oneand a half inches to the right of gunshot number3 (the bullet traveled through the lowerleft lung and lodged in the back bone behind the heart); and (5) an entrance woundto the lowerleft back(the bullet traveled upwardsthroughthe left lung, bouncedoffthe right collar bone, and lodged in the right base on the neck). The four wound woundsto the back were similar in thatall ofthe bullets traveled from the back ofThompson’s bodytothe front in an upwards direction which was consistent with Thompson beingtilted forward as the wounds were inflicted. Dr. Ribe could not determine the distance from which the four back wounds wereinflicted. All of the gunshot woundswere fatal, except forgunshot number 2, and all of the shots were inflicted before Thompson died. (SRT 1558-1573.) Senior criminalist Elizabeth Devine examined photographs of the victims and the car, inspected the car, reviewed the autopsy reports and protocol, talked with the detectives who investigated the murders and to the pathologist who performed autopsies, and visited the scene of the crimes. Based onher investigation, Devine concludedthatall of the bullets were fired 16 from theleft rear open windowofthe vehicle,that the first roundfired was the through-and-through bullet wound to Robin Shirley’s neck, that the second round fired was to Thompson’s temple, and that the other rounds were fired afterwards. (SRT 1607, 1632-1647.) Throughoutthe investigation, which included interviews with numerous Target employees as well as appellant’s family members and friends, the investigating officers never uncovered any evidence of a romantic or dating relationship between appellant and Robin Shirley. In addition,the police never discovered any evidence of a “lover’s triangle” between appellant, Robin Shirley, and Lee Thompson. (6RT 1760-1762.) 8. Appellant’s Arrest And Statements To The Police At 8:00 p.m., on October 2, 1993, Lieutenant Carl Brubaker and other police officers executed a search warrantat appellant’s house. They recovered a pager in appellant’s bedroom andarrested appellant. After appellant was advised of and waived his Miranda rights, he provided the following information during an interview conducted by Lieutenant Brubakerat 11:15 p.m. (5RT 1703-1709; 6RT 1726.) Appellant denied that he was angry when Robin Shirley received the promotion. Heclaimed that he “just didn’t feel much,I didn’t feel myself... I wasn’t angry or nothing, I just didn’t feel all capable of performing the way Tused to....” Appellant denied knowingthat Shirley had been murdered. He claimed that his aunt, Yvonne, told him at 1:00 or 2:00 p.m.that she heard on the radio that two people who were not Target employees had been killed and dumpedat Target. Upon beingtold that he was the suspect, appellant denied committing the crimes and denied being present at the murder scene. Appellant said that he had goneto sleep at 12:30 a.m., the night of the murders, that he woke up at 7:00 a.m., went running,returned to the houseat 17 7:30 a.m., and then wentback to sleep until 11:00 a.m. Hestated that he stayed homeall day. Appellant claimed that his cousin Alex’s bicycle had beenstolen two daysearlier at the Indian Hill Mall, but he did not report the theft to the police. Appellant said that he had recently painted the bicycle black. Appellant said that Alex had been homethe night ofthe murderand that he went running with appellant the next morning. Appellant denied talking to or seeing Karen Hornerthat day. Hesaid that hetalkedto her the night ofthe murdersat 10:00 or 11:00 p.m. (Supp.II 1CT 269-279,Ex.35, transcript of 10/2/93 interview.) On October 4, 1993, at 10:00 a.m., the police interviewed appellant again at the La Verne Police Department. Appellant had beenin custodysince the first interview and he again was advised ofand waived his Miranda nights. Hetold the police the following information. Appellant said that from the time he went to bed on the night ofthe murders until his arrest the following day, he neverleft his neighborhood. His cousin Alex went running with him bytherailroad tracks the morningafter the murders. He told the police that two of his bicycles had been stolen at the Indian Hill Mall. Whenthe police showedappellant the bicycle that had been recovered onthe night ofthe murders, appellant identified it as belonging to his cousin Alex. Appellant said that he did not know Lee Thompson andthat Thompson had only worked at Target for a few days before appellant quit. Appellant explained that he quit Target because he “couldn’t work there mentally” and because Kristin Strickland had accused him of“bad mouthing the other employees.” Appellant said that he had stopped socializing with other employees about two weeks before Robin Shirley received the promotion because the other employees were “talking too much and saying a bunch of lies.” Appellant said that Stricklandtold him that one ofthe reasonshe did not receive the promotion was becausehe had been bragging to the employeesthat he was going to get the job; appellant denied any such bragging. Appellant said 18 that he and Shirley had been friends andsocialized before she was promoted, but after the promotion they did not talk. Appellant said that before the promotion,he, Alex Sandoval, and Shirley would arrive at Target early in the morning and wait for Strickland to open the store. Appellant knew that Shirley hadthree cars, includinga silver truck that she had driven sometimes when she gave appellant a ride to work. Appellant did not know who committed the murders and commentedthat it was a “sad situation.” Appellant’s Volkswagencar had not been runningproperly, and he had a suspendeddriver’s license, so he had been getting rides from Karen Horner, Johnny Lopez, and his cousin, Alex. Heclaimedthat he only rode the black bicycle for two days after he painted it and fixed theflat tire before it was stolen. Appellant said that he used to own a chrome nine-millimeter gun with a rosewood grip that he bought from his cousin Alex three or four months earlier for $100, but that he never bought anybullets for the gun. Appellant also owned a black nylonholster his friend Victor Gomez gave him. Appellant claimed that he threw the gun awayin the trash the day after he quit Target because the Pomonapolice had confiscated another gun from his housethe night before. That gun was a 38 revolverand belongedto his cousin’s friend. Whenappellant’s uncle saw the gun in the house hecalled the police. Appellant explained that he used to live with Karen Horner in San Bernadino and that they had a romantic relationship, but had broken up in December of 1992. The day of the murders, Johnny Lopez gave appellant a ride to football practice and his cousin Philip Davis gave him a ride home. Appellant denied ever getting mad at or threatening Robin Shirleyortelling anyonethat he was madather for receiving the promotion. Appellant admitted owning a pagerbut deniedthat the code 007 whichthe police had found on the pager whenthey seizedit meant anything to him. Appellant did not know what kind of car Lee Thompson drove, but he saw him arrive at work on one 19 occasion on a motorcycle. (Supp. II] 2CT 281-315; Ex. 37, transcript of 10/4/93 interview.) Later in the day on October 4, 1993, the police spoke with appellant again, but the interview was not recorded. When Lieutenant Brubaker showed appellant the black holster that the police had recovered during their investigation appellant admitted he ownedit. (6RT 1727-1729.) On October 5, 1993, Detectives Nancarrow and Coyles showed appellant the nine-millimeter Tarus gun recovered during the investigation. Appellant admitted that he owned the gun, but claimed that he had not seen the gunsince the previous week whenhe threw it in a trash dumpsterin front ofhis house. The gun did not contain any rounds of ammunition when appellant threw it away. Appellant threw the gun away because Pomonapolice officers had beenat his house andtold him that ifthe gun ended upin the wrong hands, appellant could be charged with second degree murder. Whenthe detectives asked for details about that incident, appellant said that he did not wantto discuss the matter any further and the interview ended. (Supp.III 1CT 18, 208- 210; Ex. 43.) 20 C. Defense Evidence Appellant did nottestify at trial. Appellant’s trial counsel presented very limited evidence regarding the murders. The majority of the defense evidence consisted of testimony from appellant’s friends and co-workers regarding his character, problems with depression, relationship with Karen Horner, and friendship with Horner’s daughter, Valerie. In addition, three doctorstestified about appellant’s mental health. 1. Testimony Regarding Events Preceding The Murders And The Day Of The Murders Karen Homer’s daughter-in-law, Michelle Horner, testified that appellant’s bicycle wasat her housefor aboutfour to six months. Her husband, Alan Horner, and his father had painted the bicycle green “as a joke” in 1989 or 1990. Twoor three weeks before the murders, on a Thursday, Michelle told her mother-in-law, Karen Horner, to removethe bicycle or she would putin the trash which would be collected on the following Tuesday. Thereafter, Michelle observed appellant spray paint the entire bicycle black, including the wheels. (7RT 2007-2046.) Michelle Horner also testified that the day before the murders (Thursday), appellant accompanied Alan, Michelle, Karen, and Michelle’s youngersister to the Los Angeles County Fair from 11:00 a.m. to 11:00 p.m. Thegroupstayed togetherthe entire time. Appellant did notact in any unusual manner; he appeared to be the “same person” Michelle had always known. She neverknew appellant to take drugs or drink alcohol. At 6:50 a.m., on October 2, 1993, Karen Horner called Michelle in “hysterics” saying something about appellant and asking Michelle to pick her up at Target. When Michelle arrived at Target, Karen was not there. Michelle eventually found her at appellant’s house. They went back to Target where 21 Karen was approached by detectives who wanted to interview her. Michelle “went back to her house. Appellant called the house once or twice that day looking for Karen, and Michelle told him that Karen wasat a birthday party even though she knew that Karen wasat the police station. (7RT 2007-2046.) 2. Testimony Regarding Target And Appellant’s Work Habits Tracy Robinson wasfriends with Robin Shirley and a memberof the push team when appellant worked at Target. Robinson testified that she was not friends with appellant, but she knew that he was a hard worker. Robinson knew that Robin Shirley was separated from her husband and she described Shirley as “flirty.” Shirley told Robinsonthat she thought Target employees Ray Nieto and Justin McGruder were cute. Robinson described Shirley as acting very friendly with a lot of the new male employeesat Target, including Lee Thompson. Shirley told Robinson that Thompson was“very cute” and that she liked him a lot. Robinson observed Shirley and Thompson eat lunch together andtalk a lot at work, but she never saw them leave work together. (6RT 1834-1857.) Shirley also told Robinson that appellant liked her and had made an advance towardsher, but that she did notlike him in a romantic sense. Despite this, the two remained friends. Robinson observed appellant and Shirley eat lunch together and share rides to work, but never knew of them dating or socializing outside of Target. (6RT 1834-1857.) Appellant’s cousin, Alexander Cosey, characterized appellant’s relationship with Robin Shirley as “a little buddy, buddy relationship.” (6RT 1965-1975.) Elizabeth Rylander worked at Target until May 1993. She wasfriends with Robin Shirley, but not with appellant. Rylandertestified that Shirley told her that appellant had touched Shirley and pinched her buttocks; Rylander claimed to have seen this occur. Even though Shirley did not have romantic 22 feelings for appellant, they remained friends at work. Rylander and appellant “once visited Shirley in the hospital. Shirley told Rylander that she liked Target employee Justin McGruger. (6RT 18970-1906.) In May 1993, Ray Nieto started working at Target on the push team. Atthe time oftrial, Nieto had known appellant for 13 years. Starting in third grade, appellant often lived with Nieto and his family because appellant’s mother was not around. Nieto resigned in early August of 1993, due in part to appellant constantly pressuring him at work andtelling him whatto do. Nieto did not know ofany kindof dating relationship between appellant and Robin Shirley. Shirley flirted with Nieto and told him that he wascute, but Nieto had a girlfriend, so he told Tracy Robinson that he wasnotinterested in Shirley. Nieto did not know if appellant was aware of Shirley’s flirtation with him. (6RT 1859-1889.) Tracy Robinsontestified that she once saw appellant tell Lee Thompson how to stack boxes and Thompson was annoyed at the comment. Robinson waspresent during the incident involving appellant, Thompson,andthe radio. She did not hearthe details of the dispute, but Thompson walkedbyherafter the fight and said that he could “take careofit later and that he was pissed.” After appellant failed to receive the promotion, he appeared sad and did not seem to care about his work. She no longer saw appellant and Shirley have lunch togetheror share rides to work. (6RT 1834-1857.) Frances Voss worked at Target and wasfriends with appellant. After appellant failed to receive the promotion to push team leader, he was “devastated” because he really believed that he would get the job. Appellant wanted to quit, but Voss urged him to stay at Target. Voss felt uncomfortable around Lee Thompson because he once asked her if she had a happy marriage. Voss thoughtthat Robin Shirley was very friendly to everyoneat Target and she never saw evidence that Shirley was intimate with any of the employees. 23 Shirley never expressed to Voss that she had feelings for Lee Thompson. Voss Supervised Karen Hornerand characterized her as a very good worker but a “slow learner.” Voss only knew that appellant and Horner werefriends; she did not know oftheir romantic history. (6RT 1907-1935.) Charles McGrudertestified that his son, Justin McGruder, worked at Target in 1992. During that time, Robin Shirley called the McGruder house several times a week to speak with Justin, but he wouldtell his parents that he did not want to talk to her. When Justin was admitted to the hospital in late 1992, appellant and Shirley visited him. On one occasion, Karen Hornerspoke rudely to Charles McGruder’s daughter, Karen McGruder, about appellant being infatuated with Karen McGruder. Charles McGrudergot the impression that appellant was interested in Karen McGruder. (7RT 1999-2006.) 3. Testimony Regarding Appellant’s Friendship With Karen Horner’s Daughter, Valerie Karen Horner’s daughter, Valerie Horner,testified that she met appellant in 1987 or 1988 whenthey attendedjunior high school together. Appellant and her older brother, Alan, were very close friends, and appellant was at the Horner’s house almost daily during the summer of 1991. Valerie and appellant became very close friends. They talked to each other about “practically everything” and they “understood each other.” Appellant told Valerie that he did not get along with his mother’s boyfriend and that his mother did not pay attention to him. During August of 1991, Karen Horner became upset when daughter Valerie, appellant, and Valerie’s cousins were in Valerie’s bedroom with the door closed. Valerie was sent to Santa Rosa to stay with her cousins until school started in the fall. Valerie and appellant were both 17 that fall and seniors at Ganesha High School. Appellant started skipping classes and 24 eventually droppedout of schoolat the end ofthe fall semester. Valerie and appellant were very goodfriends, but they never had a sexual relationship even though appellant expressed that he liked Valerie as more than a friend. Throughout their friendship, Valerie maintained romantic relationships with other boys. Around September 19, 1991, Valerie’s sister-in-law and father told her that her mother and appellant were having an affair. Karen Homer movedout of the family’s house about a monthlater andstarted living with appellant in San Bernadino. Valerie told appellant that she no longer wantedto befriends, but she would still speak to appellant whenhecalled her about once a month. (7RT 2080-2127.) Valerietestified that one evening in February of 1992, appellant called Valerie and he seemed very depressed. He picked her up from schoolthe next morning and they droveto the trailer park in San Bernadino where appellant wasliving with her mother. Oncethey arrived, appellant confirmed that Karen was notin the trailer before allowing Valerie to enter. Appellant talked about feeling depressed andthathefelt there wasnotreasonto live. Appellant looked very thin. Valerie testified that appellant often spoke this way. During the course of the conversation, the two engaged in sexual intercourse because Valerie felt sorry for appellant and she wanted to “get back”at her mother. Appellant told Karen aboutthe sexual incident with her daughter. Karen tried to physically hurt Valerie and whenherfather found out, he told Valerie not to see appellant anymore. After the incident, appellant wouldcall Valerie about once a month. The two continuedto talk to each other abouttheir respective personal problems, but they never had sex again. Valerie discovered she was pregnant and thoughtthat appellant might be the father. Appellant expressed that he hoped he was the baby’s father, however,it was ultimately determinedthat he wasnotthe father. 25 Whenshefirst became pregnant, Valerie learned that her mother had had an ‘abortion, and that Karen did not know whofathered the child. Valerie and appellant never discussed her mother’s abortion. In April of 1993, appellant and Valerie stopped talking to each other. They did not speak the entire summer of 1993. At that time, Valerie had delivered her babyandstarted living with the baby’s father. Appellant called Valerie while he was in jail after the murders. (7RT 2080-2127.) 4. Testimony Regarding Appellant’s Relationship With Karen Horner Ray Nieto testified that appellant moved out of his mother’s house in 1992 because he wasangry at her for interfering in his relationship with Karen Homer. Nieto knew that appellant’s motherdid not approve ofhis relationship with Horner. While appellant was involved with Horner, Nieto and appellant did not socialize very often because Nietodid notlike appellant spending time with Homer. Neito thought that Horner was possessive of appellant and that she dominated him. Nieto did not approveofthe relationship becauseHorner was older and “she wasn’t all there in a way.” (6RT 1859-1889.) Michelle Horner, Karen Horner’s daughter-in-law, testified in detail about appellant and Karen Horner’s relationship. The couple lived with Michelle Horner and her husband, Alan Horner, in September and October of 1992. Appellant and Karen Horner then moved into a trailer owned by Michelle in San Bernadino. In November or Decemberof 1992, appellant kept hanging up the phone while Alan wastrying to talk with his mother, so he and Michelle drove to thetrailer. When they arrived, appellant would not allow them into the trailer, nor allow Karen to leavethe trailer. After an hour and a half, appellant allowed Michelle to enter to use the bathroom. 26 Michelle testified that throughout appellant and Karen’s relationship, appellant was controlling of Karen. Appellant would not allow Karento visit her son, Alan, or attend family events. Michelle observedbruises on Karen’s hands that she believed appellant inflicted. Karen did not push appellant around, nor influence him while the twolived with Michelle. Karen moved back in with her son and daughter-in-law in March of 1993 and wasstill living with them at the time of the trial. (7RT 2007-2046.) Michelle Hornertestified that between the time that appellant quit working at Target and the murders, Karen called appellant on a daily basis. Duringthe telephone conversations, she accused appellant of flirting with his co-workers, she called Robin Shirley a “whore” and a “bitch,” and she said that appellant should havereceived the promotion to push team leader. Michelle testified that Karen “accused everyone” and wasa jealous person. Karen did not seem madduring the telephone conversations with appellant. (7RT 2007- 2046.) Yvonne Coseytestified that during this time, Karen often came to the house on Lebeeandthat she frequently called the house looking for appellant. According to Cosey, Karen appearedto care a great dealfor appellant and gave him rides to work at Target. (6RT 1937-1964.) Appellant’s cousin, Alexander Cosey, shared a bedroom with appellant while appellant lived at the house on Lebee. Karen Hornerfrequently visited the house. Coseyheard appellant have telephone conversationswith Karen, her daughter Valerie, and Robin Shirley. He observed appellant and Karen Horner argue sometimesat the house. Appellant maintainedsecret contact with Valerie through phonecalls and letters. After appellant stopped working at Target, Karen Hornercalled the house five or six times a day. (6RT 1965-1975.) 27 . 5. Testimony Regarding Appellant’s Mental Health a. Opinions Of Appellant’s Friends And Co-Workers Regarding His Depression Appellant’s aunt, Yvonne Cosey, testified that appellant’s mother (Cosey’s sister) kicked appellant out ofher home on Thanksgiving in 1991. At that time, appellant appeared depressed and he looked anorexic. Cosey asked appellant’s motherif appellant could live with her family, but she said “no.” Coseyfelt that appellant’s mother neglected appellant andhis older brother, and that herpriorities were with herjob and boyfriend. The boyfriend wasverbally abusiveto appellant. Sometimeafter the incident on Thanksgiving, appellant began living with Horner in San Bernadino. Appellant never told Yvonne Cosey that the two were involved in an intimate relationship. (6RT 1937- 1964.) Yvonne Coseytestified that appellant moved in with her family at the house on Lebee in June of 1993. Appellant bought a Volkswagoncarin July of 1993 and spent a lot of time restoring it. During September of 1993, appellant became very quiet and withdrawn. Appellant stopped eating dinner with the family and no longer spent time working on his car. Cosey did not know that appellant had quit his job at Target on September 11, 1993. She thought that she may have caused the changes in appellant because in early September she waslaid off from her job and asked appellant, as well as her sons, to contribute financially to the household. (6RT 1937-1964.) Ray Nietotestified that a few months after he started working at Target, he thought that appellant seemed depressed. Appellant also seemed depressed in April or May of 1992 when Valerie Horner did not want to date him anymore; appellanttried to starve himself. At that time, appellant began seeing Valerie’s mother, Karen Horner. (6RT 1859-1889.) 28 Appellant told his cousin and roommate, Alexander Cosey, about his problemsat Target and that he had beenin fights at work. Coseytestified that he was with appellant when hecalled Target to resign. Despite the issues involving Target, appellant appeared “normal” throughout September 1993. (6RT 1965-1975.) Johnny Lopez andappellant attended Ganesha High Schooltogetherin 1991. At that time, appellant spenta lot oftime at Valerie and Karen Horner’s house. In early 1992, appellant appeared upset about problems with his mother, Maria Nelson, and herboyfriend, Earl. Appellantstarted to change and seemed “in disarray.” In January and February of1992, he talked about killing himself and said that he was goingto starve himselfto death. Appellant wasliving with Karen Horner in San Bernadinoatthe time and Lopez thought that they were fighting a lot. Lopez visited appellant in San Bernadino fourorfive times. In February 1992 hestarted giving away his belongings. Lopez did notlike Karen Horner; he believed that she was the causeofthe negative changesin appellant. Appellant went to Lopez’s house on Thanksgiving 1992after a fight with his motherand he appearedvery upset. In June 1993, Lopez and appellant began spending time together and appellant seemed “back to normal.” (6RT 1976- 1991.) Michelle Hornertestified that appellant “constantly” talked about committing suicide, sometimes while holding a knife. Michelle and Alan Horner spent many hourstelling appellant not to and after these conversations appellant would goto bed,“like it was nothing.” Michelle could not count the numbersoftimes appellant threatened to commit suicide. She did not consider his threats serious and thought that he made the statements because he wanted to be the center of attention. (7RT 2007-2046.) 29 b. Medical Testimony On March 29, 1992, eighteen months before the murders, Dr. Robert Frost examined appellant when he was admitted to the emergency room at Kaiser in Fontana. Appellant claimed that he had purposefully consumed approximately 10 tablets of Robaxin, a muscle relaxant, that had been prescribed to him on March 14, 1992,after he was involvedin a car accident. Appellantdid nottell Dr. Frost why he consumed the medication. Dr. Frost testified that the usual dosage for Robaxin was one tablet. Other than exhibiting a high pulserate, all of appellant’s vital signs were normal and Dr. Frost could not determine if appellant had actually consumed the Robaxin. The results of appellant’s blood work did not reveal any drugs in his system. Appellant’s stomach was pumped, and in compliance with standard hospital procedure, he was referred for a psychological consultation” (7RT 2047- 2060.) Dr. Herb Glazeroff conducted a psychological consultation with appellant at Kaiser after he was treated for the alleged overdose on March 29, 1992. Dr. Glazeroff diagnosed appellant as having “adjustment disorder with depressed mood”andreferred him to a clinic in San Bernadino. Dr. Glazeroff based his diagnosis on only appellant’s statements. Dr. Glazeroff concluded that appellant’s actions were not a serious suicide attempt, in part because appellant had impulsively consumed the alleged drugs, as opposed to contemplating the suicide attempt for a period of time, and because he had voluntarily cometo the hospital, as opposed to being brought by ambulance. Appellant told Dr. Glazeroffthat he attempted to commitsuicide becausehe felt that he was a burdento the people around him. Appellant did notindicate that 14. Karen Hornertook appellantto the hospital that day because he told her that he had taken somepills. She did not observe him consumeanypills. (4RT 1218, 1253.) 30 he had previously attempted to commit suicide. Dr. Glazeroff concludedthat appellant wasnot suffering for any psychotic disorders, such as hallucinations, and that his ability to perform cognitive functions wasintact. Dr. Glazeroff discharged appellant because he did not think that appellant wasat risk of harming himself. (7RT 2063-2079.) Dr. Stephen Wells, the chief forensic psychologist for Orange County, testified that, beginning approximately eight months after the murders, he saw appellant on five occasionsfor a total of ten and half hours. In addition to interviewing appellant, Dr. Wells administered appellant several standardized psychological personality tests. Dr. Wells also reviewed the police reports regarding the murders, appellant’s medical records, and high school records, and interviewed appellant’s mother, Maria Nelson. (7RT 2128-2133.) Dr. Wells opined that appellant was in the early stages of paranoid schizophrenia on the morning that he committed the murders. Dr. Wells also believed that for most of appellant’s adolescence he had suffered from a type oflong standing depression known as dysthymiaandthat appellant manifested a numberofpersonality disorders. (7RT 2155-2156.) Dr. Wells testified that whenappellant was a child he observedhis alcoholic father physically abusehis motheron several occasions, including pushingher, kickingher,setting her hair on fire, and stabbing her with a knife. Appellant’s father stole money from him, as well as appellant’s car. Dr. Wells’ also opined that appellant was deprivedofaffection from his motherandthat he lackedinterpersonalskills and maturity. Dr. Wells also believed that appellant suffered from anxiety and had feelings of helplessness and hopelessness. (7RT 2156-2161.) Appellant told Dr. Wells that he hada friendly relationship with Robin Shirley, but that it was not an intimate or romantic relationship. Dr. Wells described appellant’s relationship with Valerie Horner as negative and “pathological.” Dr. Wells characterized appellant’s relationship with Karen 31 Horneras “extremely sick” and “pathological,” and opined that appellant was seeking a substitute for his mother in Karen. Dr. Wells testified that Karen Horner became pregnant with appellant’s child and had an abortion in February 1992, which greatly upset appellant. Appellant’s mother did not approveofhis relationship with Karen Horner and repeatedly asked him to stop seeing her. Appellant ultimately movedout ofhis mother’s houseto be with Karen Horner. Dr. Wells never talked with Karen Horner, but based on his review of other material in the case, concluded that she manipulated appellant. Dr. Wells also testified that appellant doubted himself as a man, doubted himself sexually, and doubted himself becauseofhis shortstature and ethnicity. (7RT 2163-2169, 2174, 2258-2259, 2265.) Dr. Wells believed that the incident where appellant consumed 10 tablets of Robaxin was an impulsive suicide gesture that indicated appellant did not intendto kill himself, but that he wastrying to express his feelings andget help. (7RT 2171-2172.) Dr. Wells testified that appellant felt like a failure after he quit working at Target and that he developed symptomsofinsomnia, anxiety, andagitation, as well as the “early stages of the schizophrenic process.” (7RT 2175-2177.) Dr. Wells administered three standardized tests to appellant: (1) the Million Clinical Multi-Axial test (“MCMI’); (2) the Minnesota Multi-Phasic Personality test “SMMPY’”); and (3) the California Psychological Inventory test. Dr. Wells testified that each test was not more than 85 to 90 percentreliable. (7RT 2191.) Based ontheresults ofthe tests, Dr. Wells diagnosed appellant as suffering from paranoid schizophrenia and dysthymia. Healsotestified that a person suffering from appellant’s personality disorders could experience disordered thinking and havethe potential to act on “disillusional” ideas. Dr. Wells also opined that such a person would tend to misinterpret social situations. The test results also indicated that a person with appellant’s 32 disorders would have difficulty handling anxiety anddistinguishing between alternatives during a conflict. Based on an “I.Q.”test administered to appellant, Dr. Wells opined that a person with appellant’s score would have a diminished capacity to think logically. Dr. Wells also administered the Structured Interview of Reported Symptoms(“SIRS”) test to appellant to determineifhe was malingering andtrying to deceive Dr. Wells into thinking that he had a mental illness. Basedon the results, Dr. Wells concluded that appellant was not attempting to exaggerate psychiatric symptomsor fake a mentalillness. During the first three times that Dr. Wells met with appellant he did not detect any signs of schizophrenia. Dr. Wells did not conclude that appellant suffered from schizophrenia until after he received the results of the psychologicaltests. Dr. Wells was “surprised”bythe results ofthe tests. (7RT 2196, 2198-2199, 2201- 2208, 2231-2234.) Dr. Wells did not includein his report that the computerizedresults from appellant’s MCMItest indicated that appellant had a “broad tendency to magnify [his] level of experiencein theillness or characterlogical inclination to complain and beselfserving.” (7RT 2236-2238.) Dr. Wellstestified that the validity scales of appellant’s results on the MMPI were very high and would cause most psychologists to be concerned that appellant was lying in his responsesonthe tests. Dr. Wells concededthat it was possible appellant had lied. (7RT 2239-2243.) Appellant told Dr. Wells that on the night ofthe murdershe hadtrouble sleeping so he rodehis bicycle to Target. Appellant did not know what he was goingto do,although he contemplated killing himself; he had his gun with him. Whenappellant approached the Plymouth, he thought he saw Lee Thompson in the driver’s seat, bending down asifhe was picking something up from the floor. Appellant thought that Thompson was reachingfor a gun,so hefired at him. Appellant claimed that he could not remember what happened next, 33 although he accepted the factthat after firing the initial shots, he walked away from the Plymouth and then returned to fire additional shots. Dr. Wells testified that some people loose temporary awareness during traumatic events and that appellant had perceived Thompson asa threat based on Thompson’s prior threats to appellant on two occasions. (7RT 2212-2214, 2381-2382, 2376-2378.) Dr. Wells explained that even though he believed appellant suffered from schizophreniaat the time ofthe murders, he considered appellant“sane.” Dr. Wells also believed that, at the time of the murders, appellant wasable to think, make decisions, rationalize, make choices, and carry out plans. (QRT 2360-2361.) D. Rebuttal Evidence Mary Borger worked as the personnel manager for Target in May of 1992. She explained that if a person was underthe age of 18 at the time he or she applied for a job at Target, the applicant was required to provide a work permit to the store. When appellant applied to work at Target, he was 17 years old. Appellant’s work file contained three work permits that limited his work hours to 32 hours per week and 40 hours per week during a holiday. Because appellant was under 18, he wasalso restricted from working before 5:00 a.m. and past 10:00 p.m., and he could not work overtime or operate power equipment. A minor could avoid these workrestrictions by providing Target with a copy of their high school diploma or by becoming emancipated. Appellant’s workfile also contained an emancipation document which allowed him to avoid the workrestrictions placed on minors. (8RT 2276-2287) Karen Horner’s son, Allen,testified that he had been close friends with appellant since 1988 or 1989, and that they spent time togetheron daily basis until 1991. Appellant and Allen werenotfriendly during the time that appellant 34 lived with Karen Horner in San Bernadino. In 1992, Karen and appellant movedfrom San Bernadino andstayed at Allen’s house for a periodoftime. During this time, appellant and Allen mendedtheir friendship. Two days before the murders, on Thursday, September 30, 1993, Allen spent the day with appellant and Allen’s family at the fair. Allen was with appellant from 10:00 a.m. until 1:00 a.m. and he never noticed anything unusual about appellant. Appellant seemed “normal”and “happy”throughoutthe day, and Allen did not see appellant carrying a gun. Allen never knew appellant to use drugs or alcohol, or to carry a gun. (8RT 2287-2303.) Monica Vergara, Lee Thompson’s finance, testified that she and Thompson became engaged to be married on September 23, 1993. Whenever Thompson was not working, he and Vergara spenttime together. Vergara knew that Thompson wasfriends with his Target co-worker, Robin Shirley. Thompson liked Shirley and often talked about her. Vergaranever knew Thompson to own a gun. (8RT 2447-2449.) Psychiatrist Dr. Ronald Markham testified that after reviewing the history ofthe case, Dr. Wells’ report regarding appellant, andthe results ofthe psychological tests that Dr. Wells administered to appellant, he could not concludethat appellant suffered from schizophrenia because the results from the scales that measuredthe validity of the tests to determine if appellant had lied were the worst that Dr. Markham had ever seen. The validity scales from the MMPIsuggestedthat appellant was malingering in that he was not being truthful in his responses and wastrying to appear as though he had symptoms of mentalillness. As such,the results of the tests were invalid. Dr. Markham also did not disagree with Dr. Wells’ diagnosis that appellant suffered from depression. Dr. Markham furthertestified that ifhe were to interview a person with paranoid schizophrenia, he would“absolutely”be able to detect symptoms ofthe illness during thefirst meeting with the individual. Dr. Markham also 35 explained that paranoid schizophrenia did not develop suddenly in a person. ‘Rather, the illness developed over time through an “ongoing, downhill process.” Dr. Markham testified that paranoid schizophrenicsare able “to think in very exact terms,” makeplans and decisions, and weigh and consider the decisions they make in their daily lives; such individuals have a “higher sensitivity to reality.” (8RT 2453-2489.) Detective Dale Nancarrowtestified that when he searched the Plymouth on the night of the murdersafter the victims’ bodies were removed,he did not locate any weaponsinside the vehicle. Healso testified that there were no bullet holes anywhereonthe outside of the Plymouth. (QRT 2585-2587.) Robin Shirley’s mother, Ellis Verdugo,testified that Robin lived with her for two weeks before Easter in 1993 because Robin was having problems with her husband. Robin and her husband saw each other daily during that time. At the end of the two week period, Robin moved back in with her husband and children. She lived with them until she was killed. (QRT 2589- 2590.) Deputy Robert Fowler testified that he worked in the Superior Court supervising the “in custody” defendants who came to court for appearances. Deputy Fowler had knownappellant since November of 1993 when appellant started appearing in court on the murder charges. Appellant was always cooperative with Deputy Fowler. Appellant had never been classified as requiring “special handling” due to mental problems or suicidal tendencies. (QRT 2596-2599.) 36 I. PENALTY PHASE A. Prosecution Evidence 1. The Murders Of Shirley And Thompson Atthe penalty phaseretrial, the prosecution presented evidence about the murders that was essentially the same as that presented at the guilt trial, including evidence of appellant’s work history at Target, the promotion opportunity, the events leading up to appellant quitting Target, and the details of appellant’s actions before, during, and after the murders. (22RT 4028-27RT 4839.) The prosecutionalso presented evidencethat appellant confessed to his cousin, Alexander Cosey,that he had shot two peopleat Target, and that when the woman he shot made a noise, he went back and shot her again. (22RT 4488-4836.) 2. Victim Impact Robin Shirley’s husband, Robert Shirley,testified that he and his wife were married for 11 years, that Robin was his best friend, and that they did everything together. Hefelt that his life would never be the same without Robin. Robert Shirley also testified that the couple had two young children who were the most important thing in Robin’s life. The children were devastated about their mother’s murder. Appellant had met the children on several occasions, and Robin often gave appellantrides to work. Robin had been “thrilled” whenshe recieved the promotionat Target. (25RT 4672-4691.) Ellis Verdugo, Robin Shirley’s mother,testified that she and Robin visited daily, they were very close, and she missedherterribly since she was 15. Appellant’s first penalty phasetrial ended in a mistrial when the jury was unableto reach a verdict, and the following section is limited to the evidence presentedat the second penalty phasetrial. . 37 killed. Robin had three siblings who would also never see her again because ofthe murder. (27RT 4814-4822.) Monica Vergara, Lee Thompson’s fiancé,testified that they were to have been married in the fall of 1993. They did everything together and he wasthe only personin herlife that she could truly depend on for support. Lee was like “Superman”because he was alwaystrying to help people. Lee’s family was very close, and she and Leespenta lot of time with his them. (25RT 4697- 4702.) Clara Thompson, Lee Thompson’s mother, testified that Lee was a wonderful son who had twobrothers and sister. Lee was neverin trouble with the law and wasalwaysvery helpfulto his family. Lee’s family loved and missed him tremendously. His mother was devastated by her son’s murder and she felt as thoughherlife had ended since he waskilled. Lee had planned to get married, get a good job, goto college, and start his own family. (27RT 4822-4836.) B. Defense Evidence Appellant presented several witnesses who testified about his good character, as well as witnesses who explained that appellant was undera great deal of financial and personalstress at the time of the murders. Frances Voss worked with appellant at Target and believed that he was a caring person. Appellant was a good worker. Vosstestified that appellant was dependable,reliable, and had potential to succeed. After appellant did not receive the promotion he becamevery sad. (27RT 4862-4897.) Robert Griffith worked with appellant at Target on the push team. He thought that appellant was a “nice boy” who worked hard and he was very helpful. (27RT 4903-4908.) 38 Tracy Robinson worked with appellant at Target. She testified that he washelpful and a hard worker. (27RT 4910-4938.) Charles McGrudertestified that his son, Justin, worked with appellant at Target. When Justin was in the hospital, appellant visited Justin several times. McGruderthoughtthat appellant was good-natured and motivatedin his career. (29RT 5115-5120.) Joseph Kinney,the executive director for the National Safe Workplace Institute, testified that employees who havea strong emotional attachment to their jobs can react by committing violence in the workplace when they suffer a setback at work. Kinneytestified that such workers often have a variety of problems including a lack of interpersonal skills and an inability to control themselves. These workers can lose the ability to control their impulses and may actirrationally. Kinney based his opinions onstudies that he conducted. (28RT 4977-5081.) Elisabeth Temme,a real estate loan officer, testified that she met with appellant and his grandmother on September10, 1993, to sign documents to refinance the grandmother’s house. The loan officer believed that appellant wantedto assist his grandmother by making the payments onthe loan. (28RT 5081-5087.) RaymondNietotestified that his sons, Ray and Eric, were good friends with appellant. Nieto had knownappellant since he was in third grade and considered him to be a “good kid.” Appellant often stayed at Nieto’s house and was always polite and helpful. Appellant was mild-mannered and happy. Appellant called Nieto and his wife his “mom and dad.” On one occasion in August of 1992, appellant’s father, who Nieto had only met once, took appellant’s car without permission for a week. The incident greatly upset appellant andhe talked aboutkilling himself. Appellant told Nieto that he was upsetaboutnotreceiving the promotion at Target and he seemed depressedall 39 ofthe time. Nieto thought that it was out of character for appellant to commit ‘the crimes. (29RT 5121-5172.) Appellant’s aunt, Yvonne Cosey,testified that appellant was very upset about a fight with his mother and her boyfriend on Thanksgiving in 1992. Appellant’s mother said that she wanted appellant to move out of her house when he becameeighteen. Appellant lived with Cosey, his grandmother and his cousins in June 1993. Appellant had a very good relationship with his grandmother and wasvery helpful. Cosey waslaid off from her job and her unemployment payments stopped in August 1993. She asked appellant to help the household financially and this caused tension between them. Appellant did not tell Cosey that he had quit his job at Target. He acted withdrawn and depressed and stopped eating. Coseytestified that it was out of character for appellant to have committed the murders because he always apologized when he hurt someone, and he wasa very helpful person. (28RT 5090-5091; 29RT 5172-5189, 5222-5252.) Appellant’s aunt, Consuelo Garcia, testified that appellant had a very good relationship with his grandmother. Appellant was affectionate, mild- mannered, and she loved him very much. (30RT 5261-5270.) Appellant’s grandmother, Catalina Miller, testified that appellant was a respectful, kind, and “sweet” boy whospenta lot of time in her home. She loved him very much. Appellant always helped her with chores at the house and took her to appointments and grocery shopping. Appellant secured a loan for her on her house and he agreed to help her with the mortgage payments. However,after he signed the loan documents his grandmotherrealized that he had lost his job. Appellant became sad and withdrawn. (30RT 5274-5286.) Appellant’s mother, Maria Nelson,testified that she and appellant and her other son were very close when the boys were young. She often worked several jobs and wasnotable to spenda lot oftime with her sons. The family 40 lived with her motherfor a period oftime. Appellant often spenttime with the ‘Neito family. Appellant was a good student and enjoyed going to church. Nelsontestified that she “lost” appellant when, against her wishes, he started living with Karen Horner. After appellant started living with Horner and became emancipated, Nelson did notsee her son again until after he committed the murders. (30RT 5329-5335.) 41 ARGUMENT I THE TRIAL COURT PROPERLY REJECTED APPELLANT’S REQUEST FOR JURY INSTRUCTIONS CONCERNING HEAT OF PASSION BECAUSE NO SUBSTANTIAL EVIDENCE SUPPORTED THE THEORY THAT APPELLANT WAS PROVOKED INTO MURDERING THE VICTIMS In Argument 1 of his opening brief, appellant contends thetrial court committed state constitutional error, and that he was deprived of due process anda fairtrial under the Fifth, Sixth, and Fourteenth Amendmentsofthe United States Constitution whenthetrial court erroneously refused to instruct the jury on heat ofpassion. According to appellant, the trial court’s actions precluded the jury from finding that heat of passion negated appellant’s malice and preventedit from reaching a verdict ofvoluntary manslaughter. (AOB 30-60.) Appellant’s contention is without merit because the evidence did not warrant instruction on heat ofpassion. Thus,the trial court’s refusal to instruct on heat of passion wasnot error under state law, nor did it result in a violation of appellant’s state or federal constitutionalrights. A. The Relevant Proceedings Appellant’s trial counsel argued that the trial court should instruct the jury on voluntary manslaughter based on heat ofpassion as to both victims and cited People v. Berry (1976) 18 Cal.3d 509, 515 [defendant acted in heat of passion under uncontrollable rage, brought on by sexual taunts and incitements, whenhekilled wife; 20 hours elapsed between her conduct andkilling did not dissipate “long course of provocatory conduct, which had resulted in intermittent outbreaks of rage under specific provocation in the past’] in support of his argument. (8RT 2535-2549.) The trial court rejected the argument, stating the “classic case” of killing in a heat of passion is where a 42 husbanddiscovershis wife engaged in a sexual act with another man. Thetrial court stated,“I don’t think there’s anything that even comescloseto that [in this case]” (8RT 2537), and “I don’t know that [the victims] were lovers or paramours or anything.” (8RT 2547.) Thetrial court further commented on the lack of evidencethat the victims were engaged in intimate or sexual conduct, noting that they were “[j]ust sitting there waiting for the [store] to open... aa (8RT 2548-2549), and concluded by stating, “I . . . don’t see [how] manslaughter in anystretch of the imagination would apply.” (8RT 2549.) In addition, appellant’s trial counsel argued that the court should instruct the jury that heat of passion negates malice for purposesoffirst and second degree murder,and that the prosecution hadto prove beyond a reasonable doubt that the killings were not done in a heatofpassion, pursuant to CALJIC Nos. 8.42 [Explaining Heat Of Passion] and 8.44 [No Specific Emotion Alone Constitutes Heat Of Passion]. (QRT 2626, 2627A-2527A, 2652-2657, 2669.) Thetrial court rejected the proposedinstructions finding that no evidence had been presentedattrial that appellant actedin the heat of passion. (RT 2628A, 2657, 2669-2672.) Appellant’s trial counsel also proposed four additional 43 pinpoint instructions on heat of passion that the trial court rejected” (ORT 2670-2672.) . The trial court thereafter instructed the jury with a modified version of CALJIC No.8.50: The distinction between murder and manslaughter is that murder requires malice while manslaughter does not. Whentheact causing the death, although unlawful, is done in the honest but unreasonable belief in the necessity to defend against imminentperil to life or great bodily injury the offense is manslaughter. 16. The four instructions proposed by appellant’s trial counsel and rejected bythe trial court read as follows: In deciding whether or not you are convinced beyond a reasonable doubt that the defendant deliberated and premeditated, you should considerthe affect ofprovocation upon the defendantat the time ofthe killings. This provocation may come from any person including persons other than the victim. (ORT 2671.) Morespecific time ofprovocation is required to generate the passion necessary to constitute heat of passion and verbal provocation maybesufficient. (ORT 2671A-2672.) The passion necessary to constitute heat ofpassion need to have not been in rage or anger but maybe[sic] any violent intent or enthusiastic emotion which causes a person to act rationally and without deliberation andreflection. (ORT 2672.) A defendant mayact in the heatofpassion at the time of the killing as a result of a series of events which occur over a considerableperiod of time. Where the provocation extends for a long period of time you must take such period of time into account in determining whether there wasa sufficient cooling period for the passion to subside. The burden is on the prosecution to establish beyond a reasonable doubt that the defendant did notact in heat of passion. (ORT 2672.) 44 In such a case, evenif an intentto kill exists, the law is that malice, which is an essential element of murder,is absent. To establish that a killing is murder and not manslaughter, the burdenis on the People to prove beyond a reasonable doubteach of the elements ofmurder andthatthe act which causedthe death was not done in the honest, even though unreasonable beliefin the necessity to defend against imminentperilto life or great bodily injury. (QRT 2723-2724.) Thetrial court instructed the jury on first degree murder based on a premeditated and deliberate theory, and on a lying-in-wait theory. (QRT 2716- 2719.) The court also instructed the jury on unpremeditated second degree murder (9RT 2719), second degree malice murder (QRT 2719-2720), voluntary manslaughter (as to Lee Thompson only) committed with the honest but unreasonable belief in the need to defend oneself (QRT 2722-2723; 10RT 2892A), and involuntary manslaughter (9RT 2725-2726.) B. The Applicable Law A trial court has a duty to instruct on all theories of a lesser included offense which are supported by substantial evidence in the record. (People v. Breverman (1998) 19 Cal.4th 142, 154.) Substantial evidence is evidence from which ajury composedofreasonable personscouldfindthelesser offense, but not the greater, was committed. (/d. at p. 162.) This duty to instruct on a lesser included offense arises even when the defendant objects to such an instruction and regardlessofthetrial theories ortactics the defendanthasactually pursued. (Id. at p. 160.) On theother hand,a trial court is not requiredto instruct on a theory ofa lesser included offense which finds no support in the evidence. (Id. at p. 162.) 45 “Murder is the unlawful killing of a human being with malice aforethought.’” (/d. at p. 153, quoting Pen. Code, § 187, subd.(a).) Maliceis the intent to unlawfully kill. (/d. at p. 153, citing Pen. Code, § 188.) Voluntary manslaughter is a lesser included offense of murder. (/d. at p. 154.) Manslaughteris the unlawful killing of a human being without malice. (Pen. Code, § 192.) “Whena killer intentionally but unlawfully kills in a sudden quarrelor heatofpassion,the killer lacks malice and is guilty only ofvoluntary manslaughter.” (People v. Lasko (2000) 23 Cal.4th 101, 104; see also People v. Rios (2000) 23 Cal.4th 450, 460-461.) Breverman, described the heat of passion theory as follows: “An intentional, unlawful homicide is ‘upon a sudden quarrel or heat of passion’ (§192 [, subd.] (a)), and is thus voluntary manslaughter..., ifthe killer’s reason wasactually obscuredas the result of a strong passion aroused by a ‘provocation’ sufficient to cause an “ordinary [person] of average disposition ... to act rashly or without due deliberation and reflection, and from this passion rather than fromjudgment.” [Citations.] (People v. Lujan (2001) 92 Cal-App.4th 1389, 1411.) “The heat ofpassion requirement for manslaughter has both an objective and a subjective component. ([Citation.] The defendant must, subjectively andactually, kill underthe heat ofpassion. [Citation.] But the circumstances giving rise to the heat of passion are viewed objectively.” (People v. Cole (2004) 33 Cal.4th 1158, 1215.) The provocation must be caused by the victim and must be such as to “cause an ordinary person of average disposition to act rashly or without due deliberation andreflection.” (People v. Lee (1999) 20 Cal.4th 47, 59; People v. Lucas (1997) 55 Cal.App.4th 721, 739.) 46 C. Legal Analysis In this case, the evidence demonstrated that (1) the victims did nothing to provoke appellant so asto justify a heat of passion instruction, and (2) the victims’ conduct was not such as to cause an ordinary person of average disposition to act rashly and without due deliberation or reflection. The evidencein this case demonstrates a calculated plan motivated by appellant’s anger anddisdain over not receiving the promotion at Target. A plan directed precisely at the person who received the promotion he so desired - - Robin Shirley. This evidence, coupled with the absolute lack of evidence of provocation, demonstrates that the trial court properly refused the requested heat ofpassion instructions. The record supports only that appellant was guilty of murder, not the lesser offense of voluntary manslaughter. Evidence of provocation is wholly lacking. In contrast, evidence demonstrating appellant murdered the victims with malice is overwhelming. The strongestindicatorthat the victims did not provokeappellantto kill in a heat ofpassionlies in the lack of evidencethat appellant was romantically involved with Robin Shirley, and/or that Shirley and Lee Thompson were engaged in conduct that would lead a reasonable person to kill in a heat of passion. Absent evidence on these factors, appellant’s claim fails. Significantly, appellant offers a contradictory thesis as to the murders: self defense and heat ofpassion. However,that appellant shotthe victimsin a heat of passion either because he believed Lee Thompson wasreaching for a gun, or because he believed the victims were engaged in an “intimate moment,”is not supported bythe physical or circumstantial evidence. First, the physical evidence does not support either of appellant’s versions of the events leading to the murders. The story appellant told Dr. Wells wherein he shot Lee Thompsonthrough the front windshield because he thought Thompson wasreaching for a gun, is not supported by the physical 47 evidence. There was absolutely no damage to the Plymouth’s front windshield. The physical evidence supported only one conclusion—that the shots were fired from the rear left window as appellant approached the victims from behind. Furthermore, the expert testimony established that appellant shot Shirley, the person whoreceived the promotion he desperately coveted,first as opposed to Thompson, the person who wasallegedly reaching for the gun. Moreover, the victims were sitting in a relaxed position in the car, Thompsonslightly titled back, Shirley’s arms folded across herchest, both fully clothed, facing forward, with the radio playing. An objective, reasonable person knowing of the platonic nature of the victims’ relationship and seeing them in the physical positions described, would not be aroused to kill in a heat of passion. Even assuming that upon observing this scenario appellant somehow unreasonably believed the two were being “intimate,” a person acting in the heat ofpassion would not have taken the time to creep up on the victims from a calculated position behind them to ensure that they could not see him before killing them. Second, the circumstantial evidence also fails to support appellant’s claim that he killed in a heat of passion after being provoked by the victims. There was no evidencethat the victims were engaged in a romanticrelationship or that appellant believed that to be the case. Nor did the evidenceestablish that appellant had romantic feelings for Robin Shirley. In fact, the mvestigating officer testified that the police never discovered any evidence of a “love triangle” scenario. Moreover, appellant told Dr. Wells that he did not have an intimate or romantic relationship with Robin Shirley. Furthermore,after shooting the victims multiple times, appellant walked away from the car, and when a “gurgle” noise emanated from the vehicle, he turned, walked back, and shot the victims several more times. Appellant’s actions demonstrate a deliberate planto kill. Upon hearing what were arguably soundsoflife coming from the car, he returned to shoot the victims multiple 48 timesto ensurethat his plan to kill was fulfilled; these acts do not demonstrate killing in the heat of passion. Similarly, appellant's actions after the murders demonstrate that he killed with malice rather than in a heat of passion. He immediately fled the scene of the murders, evaded police, hid the gun and holster, and then hid at his house until being arrested. He never admitted the killingsto the police, or expressed remorse as would be expected from someone whokilled in a heat of passion. Furthermore, the events leading up to the murders also support the conclusion that appellant premeditated the murders, acted with malice, and did notkill in the heat ofpassion when he “stumbled”uponthe victims. Before the promotion opportunity, appellant demonstrated an excellent work ethic and aboveaveragejob performance. He was eagerto learn and often assumedextra responsibilities. After applying for the promotion to push team leader, he repeatedly bragged to his coworkers that he would receive the promotion. Whenappellant was not awardedthe promotion,the evidence showedthat his disdain, disappointment, and embarrassment grew exponentially until the time ofthe murders. He admitted that he was embarrassed to Karen Strickland over his failure, and in fact, other employees laughed at him when he wasnot awarded the promotion. Appellant cried in front of Alex Sandoval about not receiving the promotion and his productivity dramatically declined. Appellant confronted Robin Shirley,telling her that she did not deserve the promotion until Lee Thompson ordered appellant to leave Shirley alone. Appellantlater threatened Thompson, saying that he would “get him back one day.” Appellant ultimately quit after not receiving the promotion. He then methodically painted his entire bicycle black, dressed completely in black clothing and a black hat, armed himself with the fully loaded nine-millimeter semiautomatic handgun whichheplacedin his black nylon holster, and rode six miles on his bicycle in the middle ofthe night directly to Target where he knew 49 the victims regularly waitedto belet into the store at 4:00 a.m. Theseactions “were not coincidences. The evidence did not support the inference that appellant fortuitously “stumbled” uponthe very people he was angry with and had previously threatened while he happened to be armed with a fully loaded semi-automatic weapon. Based on these circumstances,the killings did notarise from a heat of passion. There simply was no substantial evidence that the victims were engaged in provocative conduct so as to warrant heat of passion voluntary manslaughter instructions. (People v. Lee, supra, 20 Cal.4th at p. 59.) Appellant’s actions were not provoked by the victims. Rather, they were the result ofpremeditation and deliberation. Based on the evidence in the record, there is no substantial evidence from whichthejury could reasonably conclude the lesser offense ofmanslaughter, but not the greater offense ofmurder, was committed. Thus, instruction on provocation and heat of passion would not have been appropriate. (See People v. Breverman, supra, 19 Cal.4th at p. 162.) Appellant argues that the evidence presented by the prosecution was sufficient to establish a triable question whether a reasonable person would be provokedinto a heat of passion. (AOB 38042.) He is wrong. An ordinary person of average disposition would not have responded to two platonic coworkerssitting in a car, fully clothed, and not physically touching each other by viciously shooting them execution style multiple times. Even if appellant was emotionally hurt by seeing ThompsonandShirley together, this alone does not constitute provocation in the context of heat of passion voluntary manslaughter. (See People v. Lujan, supra, 92 Cal.App.4th at p. 1414,[“It is not provocative conduct for a woman who has been separated from her estranged husband for four or five months and whohasfiled a petition for dissolution of marriage to later develop a romantic relationship with another individual.”].) As a matter of law, the innocuous conduct of the victims was 50 not adequate provocation to warrant heat of passion voluntary manslaughter ‘instructions. (See People v. Hyde (1985) 166 Cal.App.3d 463, 473 [new boyfriend’s mere act of dating the defendant's former girlfriend did not constitute provocation for heat ofpassion voluntary manslaughter].) Appellant also contends that the trial court improperly rejected trial counsel’s reliance on People v. Berry, supra, in support of his argument that there was sufficient evidence to warrant a voluntary manslaughterinstruction. (AOB 37-38.) However, Berry recognizesthat the killer’s reason must actually have been obscured asa result of the strong passion which was aroused by a provocation sufficient to cause an ordinary person ofaverage disposition to act rashly or without due deliberation and reflection, and from this passion rather than from judgment. (See People v. Berry, supra, 18 Cal.3d at p. 515.) In People v. Marshall(1996) 13 Cal.4th 799, 849,this Court described the facts in Berry as: [T]he victim wife had engaged in a two-week pattern of sexually arousing the defendant husband andtaunting him into jealous rages over her love for another man, conduct we concluded would stir such a passion ofjealousy, pain and sexual rage in an ordinary man ofaverage disposition as to cause him to act rashly from this passion. [Citation.} As shown above,in this case there was absolutely no evidence ofprovocation justifying a manslaughterinstruction, muchless the type ofprovocation found sufficient in Berry. Instead, the record shows appellant acted with premeditation and deliberation. Appellant further arguesthat“thetrial court’s misunderstanding ofheat of passion wasclearly wrong” because heat of passion and provocation can arise in a broad range of circumstances. (AOB 37.) First, even if the trial court’s discussion of heat of passion focused on a scenario where a husband discovers his wife in a sexual situation with another man when, in fact, the 51 courts have found heat of passion in a wider range of situations, the fact remainsthat there simply was no substantial evidence of provocation in this case. Second, the distinction between the present case and those cited by appellant (AOB 34-37) is clear--those cases involved evidence of actual provocation bythe victims. Noneofthe cases appellantcites remotely involve the factual scenario in this case: two platonic coworkerssitting in a car, fully clothed, not physically touching each other, listening to the radio, and being “discovered”by a defendant who had nohistory of a romantic relationship with the female victim. The most appellant can derive from the evidenceis that he was provoked when he “unexpectedly came upon Robin Shirley and Lee Thompsonsitting close together in the front seat of Mr. Thompson’s car.” (AOB 36 fn. 8.) As set forth above, such an innocuoussituation is not sufficient to provoke a reasonable person. Contrary to appellant’s repeated assertions, there was no substantial evidence that he had “romantic feelings” for Shirley, that he was in love with her, or that he killed the victims becausehe felt “betrayal and extreme jealousy.” In fact, appellant told Dr. Wells that he did not have an intimate or romantic relationship with Robin Shirley. That Karen Horner, appellant’s ex- girlfriend, was jealous ofShirley offers nothing towards proving that appellant wasin love with Shirley. Appellant also argues that Karen Horner’s repeated disparaging comments about Shirley aroused his passions and provoked him. These arguments have no merit because the provocation must be caused by the victim. (People v. Lee, supra, 20 Cal.4th at p. 59.) Appellantalso claims that clothing in the back seat ofthe Plymouth was evidencethat the victims had been “having an affair.” (AOB 4 .) However, the clothing consisted of nothing more than a jacket and a pair of socks; the victims were fully clothed when appellant shot them. Appellant’s repeated characterization ofthe victims as being engaged in “an intimate moment’ (AOB 52 42) or “romantic situation” (AOB 42), and ofhim stumbling upon “the object ofhis desire cuddling with . . . [his] rival” are again mischaracterizationsofthe circumstantial and physical evidence. Based ontheinfliction of the wounds andthetrajectory of the bullets, the criminalist concludedthat the victims had been seated upright when they were killed, not intertwined in somesort of sexual position. (See respondent’s Argument III, infra, for a detailed discussion.) Appellant’s argumentthat“a fair inference is that Mr. Thompson wasbentoverinto Ms. Shirley’s lap when they were shot” (AOB41), again,is not supported by the physical evidence. It would not have been possible for appellant to shoot Thompsonin the back before the shooting him in the temple (such as if he were bendingoverin Shirley’s lap), because there would have been no way for Thompsonto return to the upright position for infliction ofthe temple shot since the back shots were fatal. Finally, throughout appellant’s argument attemptingto characterize the evidence as somesort ofjealous lovetriangle, he never mentionsthefact that after shooting the victims multiple times, he walked awayonlyto deliberately return to finish carrying out his plan with multiple additional shots when “gurgling” sounds emanatedfrom the vehicle. Twoofthe three shots to Shirley and fourofthe five shots to Thompson werefatal. This calculated move of returning to shoot the victims yet again supports the only rational conclusion based onthe record: appellant was not provoked bythe victims, he did notkill in the heat of passion, but rather killed with malice. D. Harmless Error Even assumingthe trial court erred in failing to instruct the jury on voluntary manslaughter, reversal of appellant’s murder convictionsstill would not be required. Any “error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions 53 posed by the omitted instructions adversely to defendant under other properly “given instructions.” (People v. Koontz (2002) 27 Cal.4th 1041, 1086-1087 [harmless error to fail to instruct on voluntary manslaughter where jury’s unanimous conclusion was that killing occurred during the commission of robbery].) Here, the jury rendered true findings on both lying-in-wait special circumstanceallegations. (1ORT 2899-2901.) Therefore, the jury necessarily determined that appellant committed first degree murderasto both victims, and any error was harmless. (See People v. Earp (1999) 20 Cal.4th 826, 884-886 [failure to give lesser offense instructions on second-degree murder and involuntary manslaughter harmless where jury’s special-circumstancefindings meantit necessarily determined the killing wasa first-degree felony murder committed during the course of sexual offenses].) There is no substantial evidence that appellant committed any lesser act. This claim is based on speculation, not evidence, and should be rejected. (People v. Lewis (1990) 50 Cal.3d 262, 276-277.) In this case, there was no reasonable probability the trial court’s failure to give the requested voluntary manslaughter instruction affected the outcome of thetrial, and any error was harmless. (People v. Sakarias (2000) 22 Cal.4th 596, 621 [state standard for harmless error analysis is appropriate where court fails to give lesser offenseinstructions, citing People v. Breverman, supra, 19 Cal.4th at p. 167].) For the same reasons, even assumingthefailure to instruct on manslaughterviolated appellant’s federal constitutionalrights, the error was harmless beyond a reasonable doubt. (Chapmanv. California (1967) 386 U.S. 18, 24.) 54 E. No Due Process Or Federal Constitutional Error Appellant contends that the trial court’s failure to instruct on heat of passion deprived him of his rights to due process, a fair trial, trial by jury, confrontation and cross-examination, presentation of a defense, effective assistance of counsel, equal protection, and reliable guilt and penalty phase verdicts in a capital case, guaranteedbythe Fifth, Sixth, Eighth and Fourteenth Amendmentsto the federal Constitution. (AOB 42-55.) Citing Beck v. Alabama (1980) 447 U.S. 625, appellant contends the federal Constitution requires instruction on lesser included offenses in capital cases. Appellantis incorrect. As this Court pointed out in People v. Breverman, supra, 19 Cal.4th at page 167,-the high court held in Schad v. Arizona (1991) 501 U.S. 624, 647... that Beck’s principles weresatisfied ifthe jury was provided some noncapital third option between the capital charge and acquittal. (People v. Sakarias, supra, 22 Cal.4th at p. 621 fn.3.) Contrary to appellant's assertions, the jury was not left with the option of only convicting him of capital murder or acquitting him when the trial court refused to instruct on heat ofpassion and manslaughter. (AOB 45-55; see Beck vy. Alabama, supra, 447 U.S.at pp. 633-635 [sentence of death violates the Fourteenth Amendmentwhen the jury was not permitted to consider a verdict of guilt of a lesser included noncapital offense and the evidence would have supported such a verdict].) In this case, the jury had the choice of finding appellant guilty offirst degree murder without special circumstancesor second degree murder on twodifferent theories. (QRT 2719, 2722.) Thus, the trial court did not commit constitutional error. 55 II. THE TRIAL COURT PROPERLY REFUSED APPELLANT’S PROPOSED PINPOINT INSTRUCTIONS ON PROVOCATION In Argument 2 of his opening brief, appellant contends that the trial court erred when it refused to instruct the jury with CALJIC No. 8.73 (Evidence of Provocation May Be Considered in Determining Degree of Murder) which would havetold jurors to consider evidence ofprovocation in deciding whether the killings, if they amounted to murder, were willful, deliberate, and premeditated. He also argues that the trial court erroneously rejected a proposed pinpoint instruction that would have told the jury that provocation could come from personsother than the victims. (AOB 61-70.) Appellant contends the failure to give the instructions deprived him ofhis federal constitutional right to adequate instructions on the defense theory ofthe case, and his rights under the Eighth and Fourteenth Amendments ofthe United States Constitution. (AOB 67-68.) Appellant is wrong. The giving ofCALJIC No. 8.73 and the other pinpoint instruction was not warranted because the instructions were not supported by the evidencepresentedattrial. In any event, any error in refusing to give the instructions was harmless. 56 A. The Relevant Proceedings Appellant’s trial counsel requested CALJIC No. 8.73" (8RT 2327; ORT 2664) which he contends sets forth a lesser degree of provocation which is measured bya subjective standard, and mayactto raise a reasonable doubtthat he killed with deliberation and premeditation. (AOB 63.) Appellant’s tral counsel also requested the following instruction: In deciding whetheror not you are convinced beyond a reasonable doubt that the defendantdeliberated and premeditated you should considerthe effects ofprovocation on the defendantatthe timeofthe killings. This provocation may comefrom anyperson including person other than the victims. (ORT 2671A.) Thetrial court rejected both instructions. (9RT 2664, 2671A- 2672.) B. The Applicable Law A pinpoint instruction “relates particular facts to an element ofthe charged crime andtherebyexplains or highlights a defense theory.” (People V. Mayfield (1997) 14 Cal.4th 668, 778.) A criminal defendantis entitled, on request,to instructions that pinpointthe theory ofthe defense case. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1142 citing Peoplev. Saille (1991) 54 Cal.3d 1103, 1119.) However, even when requested, the pinpointinstruction need be 17. CALJIC No.8.73 provides, If the evidence establishes that there was provocation which played a part in inducing an unlawfulkilling of a humanbeing, but the provocation wasnotsufficient to reduce the homicide to manslaughter, you should consider the provocation for the bearing it may have on whether the defendant killed with or without deliberation and premeditation. (8RT 2327.) 57 given only if it is supported by substantial evidence. (People v. Ward (2005) 36 Cal.4th 186, 214-215 citing People v. Marshall (1997) 15 Cal.4th 1, 39.) This Court has held that CALJIC No.8.73 is a pinpointinstruction (see People v. Steele (2002) 27 Cal4th 1230, 1250-1251; People v. Ward, supra, 36 Cal.4th at p. 214; People v. Saille, supra, 54 Cal.3d at p. 1119), but that the instruction is not sua sponte required wherethereis no evidence ofprovocation. (See People v. Perez (1992) 2 Cal.4th 1117, 1129-1130 [no evidence of provocation to justify instruction with 8.73].) The evidentiary premise of a provocation defense is the defendant’s emotionalreaction to the conduct of another, which emotion may negate a requisite mentalstate. . .. However, [where] the record contains no evidence of what, if any, response defendant had to the purported [conduct] ... there was noerror in the failure to give CALJIC 8.73. (People v. Ward, supra, 36 Cal.4th at pp. 214-215.) C. Legal Analysis Appellant argues that even if there was insufficient evidence of provocation to warrant voluntary manslaughterinstructions,sufficient evidence ofprovocation existed to reduce the murdersfrom first to second degree. (AOB 63.) However, as discussed at length in respondent’s ArgumentI, there was no evidence of provocation to warrant instruction thereon. The evidence of provocation was nonexistent, and thus did not warrant the giving of CALJIC No.8.73 or the other proposed pinpoint instruction on provocation. (People v. Gutierrez, supra, 28 Cal.4th at pp. 1142-1143.) Appellant argues that his “hyper vigilant, emotionally unbalanced”state ofmind caused him to be provoked by seeing Lee Thompson and Robin Shirley merelysitting together in the car. (AOB 67.) This argumentis pure speculation as there is no credible evidence that appellant found the victims’ actions, if any, 58 provoking in any way orthat he acted undersuch provocation. Any possible “provocation appellant can conjure would be merely speculative and not a proper basis for instruction. (See People v. Wilson (1992) 3 Cal.4th 926, 941.) The prosecution’s evidence justified only one reasonable conclusion, i.e., that appellant acted with premeditation and deliberation. Furthermore, even if provocation were somehowapplicable to the conductfor which appellant was convicted, it could apply onlyto the first victim murdered.” Thesecondvictim was necessarily the subject of ample premeditation and deliberation on appellant’s part. Thus, appellant’s argumentat best would relieve him of only one of his two murder convictions. Lastly, the trial court also properly refused appellant’s proposed instruction that provocation may come from a person other than the victims (ORT 2671A) because the instruction was an incorrect statement of the law. (People v. Lee, supra, 20 Cal.4th at p. 59 [the provocation must be caused by the victim].) D. Harmless Error Assuming thatthe trial court erred in refusing to instruct the jury with CALIJIC No. 8.73, there was no prejudice. As discussed in the preceding section ofthis argument, the trial court instructed the jury on unpremeditated murder ofthe second degree, requiring a finding that appellant intentionally killed the victims with malice but the evidence was insufficient to establish deliberation and premeditation. Appellant’s trial counsel thoroughly argued his theory to the jury during closing arguments. The jury was also instructed on premeditation and deliberation, requiring the jury to find: 18. As set forth in respondent’s ArgumentIII, the criminalist rendered the opinion that Robin Shirley waskilledfirst. 59 _ the killing was preceded and accompaniedby clear, deliberate intent on thepart ofthe defendantto kill, which was the result of deliberation and premeditation, so that it must have been formed uponpre-existing reflection and not under a sudden heat ofpassion or other condition precluding the idea ofdeliberation .... Moreover, the jury found the lying-in-wait special circumstanceallegationstrue. (10RT 2899-2901.) Thus, the factual question posed by CALJIC No.8.73 was necessarily resolved adversely to appellant under other instructions given at trial. (See People v. Berryman (1993) 6 Cal.4th 1048, 1089, overruled onother grounds in People v. Hill (1998) 17 Cal4th 800, 823, fn. 1 [jury’s determination the defendant had intent to kill under other properly given instructions met the standard set forth in Chapmanv. California, supra, 386 U.S.at p. 24.) In addition, the evidence ofpremeditation and deliberation was overwhelming in comparisonto the lack of any evidence ofprovocation. (See respondent’s Argument I.) Clearly, the jury considered the facts and determined that they did not constitute such provocation as to diminish appellant’s culpability. For the same reasons, even assumingthe alleged error violated appellant’s federal constitutionalrights, the error was harmless beyond a reasonable doubt. (Chapmanv. California, supra, 386 US. at p. 24.) In sum, the evidence in this case does not demonstrate the provocation or heat of passion necessary to justify the trial court instructing the jury with CALJIC No. 8.73. 60 Il. THE TRIAL COURT PROPERLY ADMITTED CRIMINALIST ELIZABETH DEVINE’S TESTIMONY REGARDING THE SEQUENCE OF SHOTS AT THE MURDER SCENE In Argument 3 of this opening brief, appellant contends that he was deprived of due process and a fair trial when the trial court allowed the prosecution to present evidence from a criminalist regarding the sequence ofthe shotsfired by appellantat the victims. (AOB 78-80.) Appellant contendsthat the expert was notqualified to render such an opinion,andthat her opinion was impermissibly based on speculation. (AOB 74-78.) Appellantalso asserts that the erroneous admission ofthe expert’s testimony requires reversalofthe death verdict. (AOB 84-92.) All of appellant’s arguments lack merit. A. Waiver Appellant contends that admission of the expert testimony violated his right to due process anda fairtrial, as well as his rights underthe Eighth and Fourteenth Amendment requirements for heightened reliability standards for both guilt and penalty determinationsin capital cases. (AOB 78-79.) Appellant did not object to the admission of the evidence on these groundsattrial. Therefore, his constitutionalclaims have been waived becausehefailed to raise those groundsin thetrial court. (See People v. Sanders (1995) 11 Cal.4th 475, 510, fn. 3.) In any event, the evidence was properly admitted expert testimony, and any error was harmless. 61 B. The Relevant Proceedings 1. The Prosecutor’s Offer OfProofAnd The Defense Objection The prosecutor’s offer of proof regarding senior criminalist Elizabeth Devine’s testimony was that she had examined photographsofthe victims, photographs ofthe car, the car, the autopsy reports, talked to the pathologist who performed autopsies, and visited the scene of the crimes, and that she would render an opinionthatall ofthe bullets were fired from theleft rear open window ofthe vehicle, that the first round fired was a through-and-through bullet wound to Robin Shirley, that the second roundfired was to the head of Lee Thompson,andthat the other rounds were fired afterwards. (SRT 1608- 1610.) Appellant’s trial counsel objected on the grounds of “foundation and expertise,” arguing that Devine’s area of expertise was serology,notballistics or reconstruction, and that her testimony regarding the sequence of the shots would be speculative and lack foundation. He further stated that he had no objection to Devine’s testimony aboutvisiting the scene or her rendering an opinion thatall ofthe shots werefired from outside the vehicle in left to right direction. (SRT 1610.) 2. The Prosecution’s Direct Examination During direct examination by the prosecutor, senior criminalist Elizabeth Devinetestified that she had been employed for nine years at the Los Angeles County Sheriff's Department. She defined a criminalist as “an individual who analyzes, collets, and uses scientific means to come to some determination about evidence.” (SRT 1612.) She had a bachelor’s degree in biology from UCLAandamaster’s degreein science andcriminalistics from California State University at Los Angeles. Her course work included death investigations, sex crimes investigation, serology, microscopy, and other types ofexamination. At 62 the timeoftrial, she was assigned to the serology section of the crime lab. A serologist respondsto crime scenesto collect blood andother physical evidence such as semen, perspiration saliva, and bodily fluids. The seroligist then analyzes the samplesto determinetheir source. Serologists also interpret blood stain patterns to determinea suspect’s position and location during a shooting, wherethe victim was located, andifthe victim moved duringorafter the crime. (SRT 1615.) Devine had beentrained in bloodstain pattern interpretation and she completed advanced course work at the California Criminalistics Institute in Sacramento on topics including crimescene reconstruction,bullettrajectories, and computer work. (SRT 1612-1614.) Devine had also completed additional advanced course work in crime scene reconstruction, but shetestified that the primary means of learning crime scene reconstruction comes from visiting numerouscrime scenes to gain experience. Devine estimated conservatively that she had collected evidence from, and examined, 300 crimescenes including five years of instruction in the field with Ron Lenhart, an internationally renowned expert in bloodstain pattern and reconstruction. Devine’s practice was to review all of her reconstruction cases with Lenhart including the photographs, the languageused in her reports, and her conclusions. Based on hertraining and experience, Devine also reviewed witness statements regarding how a crime occurred and correlated or disputed those statements with the physical evidence recovered from the crime scene. (SRT 1616-1620.) In this case, Devine metwith the detectives investigating the murders on October 7, 1993, in La Verne. She examinedtheinterior andexterior of the Plymouth and the photographstaken bythe officers depicting the position of the victimsat the time police discovered them at the crime scene. Devine also took her own photographsof the car, read the autopsy reports, reviewed the autopsy protocols, examined the autopsy photographs, and reviewed a witness 63 statement. The detectives described to her the condition of the car and the Victims when they were discovered, as well as the location ofthe shell casings and spent rounds found in and around the car. Based onthe totality of the evidence,including the position ofthe bullet recovered inside the car and the positions of the seats, she was able to render an opinion as to which shot was fired first. Devine had been previously qualified as an expert approximately 75 to 100 times. (SRT 1620-1624, 1627-1628.) 3. The Defense Voir Dire During voir dire examination by appellant’s trial counsel, Devine testified that she had spentthe nineyearspriorto the trial responding to crime scenes and analyzing samples in the laboratory. The areas of expertise for which she had previously qualified included bullet trajectories and bullet impacts within the context of evaluating thetotality of circumstances at a crime scene. She studied crime scene reconstruction using trajectories at the California Criminalist Institute, howevertrajectories were not specifically her expertise. Devinetestified that she had wanted a “firearms person”tolook at the bullet hole in the front doorofthe car, but that the detectives did not agree with her. She based her ultimate opinion in the case on where the bullet was foundin the car as opposedto basing her opinion onthe bullet’s trajectory. As she explained,“bullets travel in straight lines andthe bullet was recovered from the door, andit doesn’t take a brain surgeonto figure out where the bullet came from.” (SRT 1624-1629.) 4. The Trial Court’s Ruling After ending his voir dire, appellant’s trial counsel told the court that he “would still challenge the lack of foundation ofthe trajectory issue.” (SRT 1631.) The court ruled as follows: 64 _ | think based upon her education, training and experiencethat she’s qualified to testify as an expert, and assumethat you can develop us a scenario of some sort from knownfacts and opinions with referenceto the sequenceatleast[sic] the first shots. (SRT 1631.) 5. The Expert’s Opinion Afterthe trial court’s ruling, Devine opinedthatthefirst shotfired at the murderscene wasthebullet that caused a through-and-through wound to Robin Shirley’s neck as it passed throughher body from left to right and then lodged in the front passenger door. Devine based her opinion ontheposition of that wound,the recovery ofthe bullet in the front passenger door, and primarily, on the through-and-through head wound that Thompson receivedto his temple. The bullet that passed through Thompson’s temple exited his body and caused a grazing woundto Shirley’s upperleft shoulder, before landing on the front passenger’s seat behind Shirley’s body. Whenthe shot to Thompson’s temple wasfired, he had the driver’s seat slightly reclined, thereby making Shirley’s shoulder inaccessible to the bullet as she sat in the passenger’s seat. In order for the bullet to graze Shirley’s shoulder asit did, she had to have beenslightly slumped forward to expose her shoulder. That slumping forward was caused when Shirley was shot in her neck. IfThompson hadbeen shotfirst, Shirley’s shoulder would not have been grazed by the bullet that passed through Thompson’s temple becauseher shoulder would have beeninaccessible to the bullet. (SRT 1632-1634, 1638.) Devine further opined that the bullet which passed through Shirley’s neck,causedher to slump forward, and then lodged in the front passenger door. The bullet was fired from the left, and from behind Shirley, in an upwards direction. Assuming the front windowswererolled up, the rear windows were 65 partially down,and the victims were seated in the positions depicted in the photographs, Devine concluded that the shot to Shirley’s neck was fired through the left rear window. The physical evidence in the car, the blood spatter, and the photographs were consistent with her opinion. In fact, based on thosefactors, she concludedthat all ofthe shots were fired from the left rear window. Regardless ofwhether the gun wasinsideor outside ofthecar,all of the shots were fired from the area of the left rear window. (SRT 1634-1636, 1642.) | Devine concluded that the second shot fired was the through-and- through wound to Thompson’s temple. When the shot wasfired, the driver’s seat wasslightly reclined and Thompson’s head wasturnedto the left. After the bullet passed through Thompson’s temple, it grazed Shirley’s shoulder, slowed down,andfell behind her body onto the front passenger’s seat. (SRT 1640-1644.) Devine could not determinethe order in which the remaining shots were fired. However, she concludedthatall four ofthe wounds to Thompson’s back had to have been inflicted after the shot to his temple because when his body was flat against the back of the driver’s seat, his back would have been inaccessible unless the shots were fired through the back ofthe seat and there was no damageto the back ofthe driver’s seat. Thompson hadto havefirst been shot in the temple which caused him to slump forward and thereby expose his back for infliction of the four woundsto his back. (SRT 1644-1645.) The clustered nature ofthe four back wounds suggested that the shots werefired in succession. Devine could not determine when the shot to Shirley’s forehead was inflicted. (SRT 1646-1647.) Devine did not think that reconstructing the scene by shooting at dummies would have aided her in forming any further opinions as to what occurred. It would not have been possiblefor the shots to Thompson’s back to 66 be inflicted before the temple shot (such as if he were leaning over to expose ‘his back) because there would have been no wayfor him to return to the upright position for infliction ofthe temple shot since the back shots were fatal. There was no blood spatter evidence from the back shots becausethe bullets lodged in Thompson’s body. Devine believed the blood spatter on the right door frame was from Shirley’s head wound. (SRT 1649-1653.) She relied on Dr. Ribe’s report for information regarding the direction and angles that the bullets traveled through the bodies. (SRT 1652-1653.) C. The Applicable Law A trial court has considerable discretion to allow expert testimony. (Evid. Code, § 352; People v. Carpenter (1997) 15 Cal.4th 312, 403; People vy. Rowland (1992) 4 Cal.4th 238, 266.) The opinion of an expert must be related to a subject sufficiently beyond the commonexperiencesoasto assist the trier of fact. (Evid. Code, § 801.) “A person is qualified to testify as an expert if he has special knowledge,skill, experience, training, or education sufficient to qualify him as an expert on the subject to. which his testimony relates.” (People v. Davenport (1995) 11 Cal.4th 1171, 1207,internal quotation marks and citation omitted.) “Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embracesthe ultimate issue to be decided by thetrier of fact.” (Evid. Code, § 805.) A tral court’s determination to admit expert evidence will not be disturbed on appeal absent a showing that the court abused its discretion in a mannerthat resulted in a miscarriage ofjustice. (People v. Catlin (2001) 26 Cal.4th 81, 131; Peoplev. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) 67 D. Legal Analysis Appellant’s contention that Elizabeth Devine wasnotqualified to render an opinion regarding the sequenceof shots and that her opinionin that regard was speculative lacks merit. (AOB 74-78) Devine had extensivetraining and field experience in the area of crime scene reconstruction. She had completed course work at the California Criminalistics Institute in Sacramento in crime scene reconstruction and bullet trajectories, as well as additional advanced course work in crime scene reconstruction. (SRT 1612-1614.) In addition, she had collected evidence from, and examined, 300 crime scenes, including five years ofinstruction in the field with Ron Lenhart, an internationally renowned expert in crime scene reconstruction. As Devine testified, the best way of gaining experience in crimescenereconstruction wasbyactually visiting crime scenes and conducting investigations. (SRT 1616-1620.) Based on her experience,the trial court properly ruled that Devine was qualified totestify, and to offer an opinion regarding the sequence ofthe shots fired. Appellant’s contention that this opinion could be given only by a “crime scene reconstructionist” per se is incorrect. (AOB 74-75) Contrary to appellant’s contention, the fact that Devine was employed in the serology section of the crimelab at the timeoftrial did not render her unqualified in the area of crime scene reconstruction. Devine was employed as a senior criminalist — “an individual who analyzes, collets, and uses scientific means to come to some determination about evidence.” (SRT 1612.) Based on Devine’s training and experience in investigating crime scenes, those conclusions necessarily included the expertise to render an opinion regarding the sequence of shots in this case. Moreover, her opinion was based on thetotality of her investigation at the crime scene, and her qualifications in terms of crime scene investigation were not disputed as she had previously investigated over 300 crime scenes. “[T]he opinion evidence here at issue did not require that the 68 witness have expertise beyondthat which was shown.. .,” that is, that she was ‘an experienced criminalist whoalso possessedextensive familiarity specifically with determining gunshot sequence. (People v. Robinson (2005) 37 Cal.4th 592, 632 citing People v. Farnam (2002) 28 Cal.4th 107, 162, [error regarding a witness’s qualifications as an expert will be foundonlyifthe evidence shows that the witness “clearly lacks qualification as an expert’”’].) As such,thetrial court did not abuse its discretion when it qualified Devine as an expert. Contrary to appellant’s assertion, the expert’s testimonythat appellant shot Shirley first did not cause the jury to reject “out ofhand any evidence that [appellant] shot ... Thompson in imperfect self-defense.” (AOB 79.) Even withoutthe testimony regarding the sequenceofshots,the jury could havestill reasonably rejected appellant’s claim that he shot Thompsonfirst through the front windshield becauseall of the physical evidence contradicted appellant’s version ofthe events. There was no damageto the front windshield ofthe car. Furthermore, if Thompson had been shot in the back while bending over to retrieve a gun, he could nothave returnedto an upright position to receive the shot to his temple because the shots to his back were fatal. In addition, regardless of the sequence of the shots, the physical evidence undisputedly showedthatall ofthe shots were fired from behindthevictimsat virtually point blank range, as opposedto being fired from the front of the car in response to Thompsonallegedly reaching for a gun. In addition, the expert’s testimony did not “negate[] the substantial evidence that [appellant] was psychologically predisposed to acting impulsively.” (AOB 81-84.) It was notthe admissionofthe expert’s testimony that negated any evidencethat appellant tended to act impulsively, but rather the overwhelming evidencethat appellant methodically planned the attack when, dressed in black, on a black bicycle, and armed with a loaded nine-millimeter gun in his holster, he purposefully wentto the exact location in the Target 69 parking lot where he knew Robin Shirley waited each morning, sneaked up on ‘the victims from behind, shot them multiple times, and then returned to shoot them several more times. Absent the expert’s testimony about the sequence of the shots, it is not likely the jury would have overlooked this evidence of calculated planning and premeditation, and foundappellant guilty of anything less than first degree murder. Finally, the jury was instructed with CALJIC Nos. 2.802 (Expert Testimony) and 2.82%’ (Expert Testimony Concerning Hypothetical Questions), 19. Thetrial court instructed the jury pursuant to CALJIC No. 2.80 as follows: A personis qualifiedto testify as an expert ifhe or she has special knowledge, skill, experience, training or education sufficient to qualify him or her as an expert on the subject to which his or her testimonyrelates. [{] A duly qualified expert maygive an opinion on questions in controversy ata trial. [{]] To assist you in deciding such questions, you may consider the opinion with the reasons given for, if any, by the expert who gives the opinion. You may also considerthe qualifications and credibility of the expert. [{] You are not bound to accept an expert opinion as conclusive, but should giveto it the weight to which youfindit entitled. You may disregard any such opinion if you findit to be unreasonable. _ (ORT 2710-2711.) 20. Thetrial court instructed the jury pursuant to CALJIC No.2.82 as follows: In examining an expert witness, counsel may propoundto him orhera type of question knownin the law as a hypothetical question. By such a question the witness is asked to assume to be true a set of facts and to give an opinion based upon that assumption.[{] In permitting such a question,the court does not rule and does notnecessarily find that all the assumed facts have been proven. It only determines that those assumed facts are within the probable or possible range of the evidence. It is for you, the jury, to find from all the evidence whether or not the facts assumedin a hypothetical question have been proved. If you should find that any assumption in such a question has not 70 informing the jury that it must assess the weight of expert opinion evidence. (ORT 2710-2712.) Asthetrial court explained to appellant’s trial counsel, “based upon her education,training and experience . . . she’s qualified to testify as an expert .. . with reference to the sequenceatleast [sic] the first shots.” (5RT 1631.) Thetrial court properly exercised its discretion. E. Harmless Error In any event, evenifthetrial court erred in permitting Devine to testify as to the sequence ofthe shots, any error was harmless. (See People v. Prieto (2003) 30 Cal.4th 226, 247 [standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836, governserroneous admission of expert witness testimony].) The evidence demonstrating appellant intended to unlawfully kill both Thompson and Shirley, regardless of which victim he shot first, was overwhelming. (See respondent’s ArgumentI, supra.) Moreover, even absent the expert’s testimony, based on the physical evidence,thejury still would have rejected appellant’s version of events. The jury could have concluded without the assistance of the expert that appellant did not fire through the front windshield as Thompsonallegedly reached for a gun because there was no damage to the windshield. Similarly, even without the expert’s testimony, the jury could have discerned that Thompson had to have been seated upright in orderfor the bullet that passed through his temple to graze Shirley’s shoulder, and that Shirley must have been shot before Thompsonin order for her body to slightly slump forward and exposeher shoulder. Lastly, the jury did not need the expert’s assistance to conclude that the shots to Thompson’s back were been proved, you are to determine the effect of that failure of proof on the value and weight of the expert opinion based upon the assumedfacts. (ORT 2711-2712.) 71 inflicted after the shot to his temple because the back shots were fatal and ‘thereby rendered him incapable ofreturning to an uprightposition to receivethe shot to his temple. Thus, even if the expert’s testimony regarding the shot sequencehadbeen excluded,it is not reasonably probable,in light of the other physical evidence negating appellant’s version of events, that the jury would have believed appellant’s story anda different result would have occurred. Appellant claimsthat there is a reasonable probability that ifthe expert’s testimony regarding the sequenceofshots had been excluded during the penalty phaseretrial, the jury would have returneda verdict oflife in prison. (AOB 84- 93.) Appellant’s claim should be rejected. State law error occurring during the penalty phase will be considered prejudicial when there is a reasonable possibility such an error affected a verdict. (People v. Jackson (1996) 13 Cal.4th 1164, 1232.) The reasonable possibility standard for assessing prejudice in the penalty phaseis the samein substance andeffect as the beyond a reasonable doubt standard of Chapmanv. California, supra, 386 U.S.at p. 24. (People v. Jones (2003) 29 Cal.4th 1229, 1264,fn. 11.) Here,for the same reasonsthat admission ofthe expert’s testimony was harmlessin the guilt phase ofthetrial, it was also harmless beyond a reasonable doubt in the penalty phaseretrial. Even without the expert’s testimony about Robin Shirley being shotfirst, it is not reasonably possible that the jury would have voted for life in prison rather than death in light of the aggravating evidencethat appellant planned and premeditated, committed multiple murders, and committed the murders while lying-in-wait (see respondent’s Argument VD). 72 IV. THE MODIFIED VERSION OF CALJIC 2.02, AND THE INSTRUCTION COMBINING CALJIC NOS. 3.31 AND 3.31.5, DID NOT RELIEVE THE JURY FROM FINDING BOTH THE SPECIFIC INTENT AND THE MENTAL STATE OF FIRST DEGREE MURDER In Argument 4 of his opening brief, appellant contends that the trial court’s modified instruction on CALJIC Nos.2.02 (Sufficiencyofthe Evidence to Prove Specific Intent or Mental State), and instruction combining CALJIC Nos. 3.31 (ConcurrenceofAct and Specific Intent) and 3.31.5 (MentalState), relieved the jury from finding the requisite specific intent and mentalstates of first degree murder2!/ (AOB 94-100.) Appellant’s claim should berejected because the jury was not misled, and the evidence of deliberation was overwhelming. A. Waiver Appellant’s trial counsel did not object to CALJIC No. 2.02 (8RT 2522), or to the combined version of CALJIC Nos. 3.31 and 3.31.5. (8RT 2563- 2564.) As such, appellant’s claims as to these instructions have been waived. (People v. Hillhouse, supra, 27 Cal.4th at p. 503 [“A party may not argue on appealthat an instruction correct in law was too general or incomplete, and thus neededclarification, without first requesting such clarification at trial.”].) 21. Appellant asserts that the trial court created the combined version ofCALJIC Nos.3.31 and 3.31.5. However, the prosecutor and appellant’s trial counseljointly fashioned the combinedjury instruction. (SRT 2563-2564.) 73 B. Legal Analysis Despite the explicit requirements for finding willful, deliberate, and premeditated murderset forth in CALJIC No.8.20”, appellantclaimsthat the parties’ modified version ofCALJIC No. 2.02%”, and the combinedversion of 22. Thetrial court instructed thejury with CALJIC No.8.20 as follows: All murder whichis perpetrated by any kind ofwillful, deliberate and premeditated killing with express malice aforethoughtis murder of the first degree. [§] The word “willful,” as used in these instructions, meansintentional. [§] The word “deliberate” means formedor arrived at or determined uponasa result of the careful thought and weighing ofconsideration for and against the proposed course of action. The word “premeditated” means considered beforehand. [{] If you find that the killing was preceded and accompanied bya clear, deliberate intent on the part ofthe defendantto kill, which wastheresult of deliberation and premeditation, so that it must have been formed uponpre- existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation,it is murder in the first degree. [{] The law does not undertake to measure in units oftime the length ofthe period during which the thought must be ponderedbeforeit can ripen into an intentto kill, which is truly deliberate and premeditated. The time will vary with different individuals and under varying circumstances. [{]] The true test is not the duration of time, but rather the extent of the reflection. A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even thoughit include an intentto kill, is not such deliberation and premeditation as will fix an unlawful killing as murderof the first degree. [{] To constitute a deliberate and premeditated killing, a slayer must weigh and consider the question for killing and the reasons for and against such a choice and, having in mind the consequences, he decides to and does kill. (ORT 2717-2718.) 23. Thetrial court instructed the jury with CALJIC No.2.02 as follows: The specific intent or mental state with which an actis done may be shown by the circumstances surrounding the 74 CALJIC Nos. 3.31 and 3.31.5", in this case “relieved the jury from the ‘requirementoffinding both specific intent and the mentalstates offirst degree murder” (AOB 97) and“permitted the jury to find first degree murder without finding deliberation so long as the jury found a specific intentto kill.” (AOB 98.) He arguesthat the language “specific intent or mental state” in CALJIC No.2.02, and the combined version of CALJIC Nos..3.31 and 3.31.5, misled the jury as to the requirements forfirst degree murder. Appellant’s argument is speculative and not supported by the record. Regardless of the modified instructions, the jury plainly found the necessary specific intent and mental commission ofthe act. However, you maynotfind the defendant guilty of the crimes charged unless the proved circumstancesare not only consistent with the theory that the defendant had the required specific intent or mentalstate, but cannot be reconciled with any other rational conclusion. [{] Also, if the evidenceas to any specific intent or mental state permits two reasonable interpretations, one of which points to the existence of the specific intent or mental state and the otherto the absenceofthe specific intent or mental state, you must adoptthat interpretation whichpoints to the absenceofthe specific intent or mentalstate. [{] If, on the other hand, one interpretation ofthe evidenceas to such specific intent or mental state appears to you to be reasonable andthe other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable. [§] The specific intent or mentalstate as to each crimeorlesser crime is defined elsewhere in these instructions. (QRT 2699-2700.) 24. Thetrial court read the jury the followinginstruction drafted by the parties which combined CALJIC Nos.3.31 and 3.31.5: In the crimes charged in the information and the lesser crimes there must exist a union or joint operation of act or conduct,and a certain mentalstate or specific intent in the mind of the perpetrator. Unless such mental state or specific intent exists, the crime to whichit relates is not committed. [{] The mental state or specific intent required are included in the definitions ofthe crimes set forth elsewhere in these instructions. (ORT 2714.) 75 states for first degree murder because thetrial court separately instructed the jury on the lying-in-wait theory offirst degree murderas to both victims, and the jury returned true findingson those allegations. (LORT 2899-2901.) In addition, in People v. Smithey (1999) 20 Cal.4th 936, this Court upheld a modification to CALJIC No.8.20 involving an analogous mentalstate issue. In Smithey, the trial court modified the standard instruction on deliberate and premeditated murder (CALJIC No. 8.20) to include the statement: “To provethe killing was deliberate and premeditated, it shall not be necessary to prove the defendant maturely and meaningfully reflected upon the gravity ofhis act.” (/d. at p. 979.) Similar to appellant’s current complaint, the defendant in Smithey contendedthat the modified version ofthe instruction was reasonably likely to have misledthejurors into believing that they could find premeditation and deliberation if there was evidence that defendant simply committed the killing. This Court held that: Consideringthe instruction as a whole, wefind no reasonablelikelihood that the jury misunderstood the phrase “maturely and meaningfully reflected”in the manner suggested by defendant. The instruction made clear that reflection must have preceded commission of the crime and could not have been unconsideredor rash, but rather must haveresulted from careful thought and a weighing for and against the chosen course of action. There is no reasonable likelihood that the jury believed it could find deliberation and premeditation solely from evidence that defendantintendedto kill, or solelyfrom evidence that he committed the act, as defendant contends. We concludethat the trial court did not err in giving only the modification proposed bythe prosecutor, and that the instruction did not mislead the jury regarding the requisite mentalstates for first degree murderor any of the other charged crimes. (Id. at pp. 981-982, emphasis added.) 76 As in Smithey, here, there is no reasonable likelihood that the jury ‘believed it could find first degree murderwithout finding deliberation so long as the jury founda specific intentto kill. (AOB 98.) CALJIC No.8.20, as well as the instructions on lying-in-wait, explicitly informedthejury that it must find both the required specific intent and mentalstatesoffirst degree murder. Those instructions were more specific than the modified version ofCALJIC No.2.02 and the combined version ofCALJIC Nos. 3.31 and 3.31.5, so the jurors were morelikely to focus on those instructions. In addition, CALJIC No. 2.02, and the combinedversion ofCALJIC Nos.3.31 and 3.31.5, instructed the jury that the specific intent or mental state as to each crimeorlesser crimeis defined elsewhere in the instructions. (QRT 2699-2700, 2714.) Thus, the jury knew to look elsewherefor the specific requirements offirst degree murder and would not haverelied solely on the more general statements about specific intent and mentalstate set forth in the allegedly erroneousinstructions. Ultimately, there can be no question that the jury found true all of the requirements for first degree murder, including deliberation, whenit returned thetrue findings on the lying-in-wait allegations. Contrary to appellant’s contention,the evidence of deliberation in this case was strong. (AOB 98-99; see respondent’s Argument I.) Appellant meticulously planned to exact revenge on the person who hadreceived the promotionhe so desired. He did not randomly stumble upon Robin Shirley and Lee Thompsonon the morning ofOctober 2, 1993. He deliberated each detail of the killings, including painting his bicycle black, arming himself with the holster and loaded nine-millimeter gun, dressing in black, and arrivingat the exact time and place where he knew Shirley would be waiting for the store to open as she did each day. Hedeliberately surprised the victimsby hidinghis bicycle and then approaching them from behind to catch them in the most vulnerable of positions. And, he ensuredthat his plan was fully executed by 77 returning to shoot them again when gurgling sounds emanated from thecar. On this record, the allegedly erroneous instructions did not present a substantial risk of actually misleading the jury into believing thatit could find appellant guilty of first degree murder without finding the requisite specific intent and mentalstates. Moreover, both the prosecutor and appellant’s trial counsel repeatedly explained and argued the requirements of first degree murder both underthe premeditated anddeliberate theory, and the lying-in-wait theory. Thus, even if the trial court erred by reading the modified version of CALIJIC No.2.02 and the combined version ofCALJIC Nos. 3.31 and 3.31.5, reversalis not required becausethe record supports the conclusion that the jury likely was not misled. (People v. Hughes (2002) 27 Cal.4th 282, 341.) As such, appellant wasnot prejudiced. (Jbid.) 78 V. THE TRIAL COURT PROPERLY INSTRUCTED THE JURY WITH CALJIC 2.70 In Argument 5 of his opening brief, appellant contendsthat the tnal court erred whenit instructed the jury with CALJIC No.2.70 (Confessions and Admissions-Defined) because there wasno evidenceofa confession presented at trial. Appellant argues that the instruction impliedly directed a verdict and that the instruction wasprejudicial. (AOB 101-108.) He also contendsthat the instruction violated his rights “under the Sixth and Fourteenth Amendments, and deprived him ofhisright to reliable fact-finding in a capital case underthe Eight and Fourteenth Amendments.” (AOB 106.) Appellant’s claims should be rejected becauseit is notlikely the jury was misled, and furthermore, he was not prejudiced. A. The Relevant Proceedings Appellant’s trial counsel objected to the trial court instructing the jury with CALJIC 2.70, arguing that appellant had not made a confession. (8RT 2530-2533.) Appellant’s trial counsel asserted that appellant had only made admissions, not a confession,in the case. Thetrial court stated that instructing the jury with CALJIC 2.70, which defines both admissions and confessions, “« _. may enlighten the jury andtell them that there is, in fact, a difference [between admissions and confessions], rather than they get back there and they are talking about confessions, which [sic] really all they are taking aboutis admissions.” (8RT 2531.) The court thereafter instructed the jurors with CALJIC Nos. 2.702% and 2.712% (Admission-Defined). (QRT 2707-2708.) 25. Thetrial court instructed the jury with CALJIC No.2.70 as follows: A confession is a statement made by a defendant, other than at his trial, in which he has acknowledgedhis guilt of the. 79 B. The Applicable Law Thetrial court must instruct the jury sua sponte in the language of CALJIC No.2.70 when a defendant made a confession. (People v. Hudson (1981) 126 Cal.App.3d 733, 742.) However,“[iJt is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case.” (People v. Guiton (1993) 4 Cal.4th 1116, 1129 citing People v. | .. crimes for which such defendantis on trial. [{] In order to constitute a confession, such a statement must acknowledge participation in the crimes as well as the required criminal intent and state of mind. An admission is a statement made by the defendant which doesnotby itself acknowledgehis guilt for the crimes for which such defendantis on trial, but which statement tends to prove his guilt when considered with the rest of the evidence. [{] Youare the exclusively [sic] judges as to whether the defendant made a confession or an admission and if so, whether such statement is true in whole or in part. [{]] You should find- - ifyou shouldfind that the defendant did not make the statement, you mustreject it. If you find that it is true in whole or in part, you may consider that part which youfindtrue. []] Evidence of an oral confession or an oral admission ofthe defendant should be viewed with caution. (ORT 2707-2708.) 26. Thetrial court instructed the jury pursuant to CALJIC No. 2.71 as follows: An admission is a statement made by the defendant other than at this trial which doesnotby itselfacknowledgehis guilt of the crimes for which the defendant is on tnal, but which statement tends to prove his guilt when considered with the rest ofthe evidence. [§] You are the exclusive judges as to whether the defendant made an admission, and if so, whether such statementis true in whole or in part. [§] If you should find that the defendant did not make the statement, you mustreject it. If youfind thatit is true in wholeor in part, you may considerthat part which youfind to be true. Evidence ofan oral admission of the defendant should be viewed with caution. (QRT 2708-2709.) 80 Eggers (1947) 30 Cal.2d 676, 687.) An erroneousinstruction requires reversal - onlyif it appears that the error waslikely to have misled the jury. (Peoplev. Malone (1988) 47 Cal.3d 1, 52.) C. Legal Analysis In this case, appellant presented evidenceofhis statement to Dr. Wells that he shot Lee Thompsonbecausehe believed Thompson wasreaching for a gun. (7RT 1083-1084.) Evenifthis statement was not a confession,it is not likely thatthe trial court’s instruction with CALJIC No. 2.70 mislead the jury or prejudiced appellant. Appellant contends that instructing the jury with CALJIC No. 2.70 amounted to an implied directed verdict from the trial court. (AOB 103-106.) Appellant arguesthat the instruction must have caused the jurorsto believe that his statement to Dr. Wells that he shot Thompson constituted a confession to first degree murder because he was only charged with two countsoffirst degree murder. (AOB 103.) Appellant’s argument is speculative andincorrect. It is not reasonably likely that this single instruction caused the jury to believe that the trial court was directing a first degree murder verdict. CALJIC No.2.70 expressly informed the jurors that they were the exclusive judge of whethera confession or an admission was made, “and if so, whetherthat statement is true in wholeorin part.” In addition, the trial court instructed the jury pursuantto CALJIC No. 17.31 that “[w]hether someinstructions apply will depend upon what you find to be the facts. You are to disregard any instruction which applies to facts determined by you notto exist. Do not concludethat because an instruction has been given I am expressing an opinion asto the facts.” (1ORT 2883-2884.) Appellant also claims that the instruction wasprejudicial because “[b]y instructing the jury with CALJIC No.2.70, the court suggested to the jury that 81 [appellant] had confessedto first degree murder and therefore admitted the -éssential component of deliberation.” (AOB 106.) Contrary to appellant’s contention, this case was not “close” on the issue of deliberation. (See respondent’s Argument I.) In lightofthe state ofthe evidence,and considering the instructions as a whole, there is no likelihood the jury was misled into believing that appellant confessed to first degree murder or admitted the elementofdeliberation. (See People v. Barnett (1998) 17 Cal.4th 1044, 1153- 1154.) Furthermore, appellant’s contention that the instruction’s directive to view an oral confession with caution could have caused the jurors to view with suspicion appellant’s statement that he shot Lee Thompsonin self defense is purely speculative. (AOB 107.) Appellant provides no reasonable explanation whythe jury wouldselect only that small portion ofhis statement to view with caution. It is impossible appellant was prejudiced by the instruction, because it was beneficial to him, in that it informed the jury to consider any admissions or confessions with caution. Even if the jury had not received the instruction, it is not reasonably probable that it would have overlooked the compelling evidence of appellant’s planning, premeditation, and deliberation and found him either innocent or guilty of a lesser crime. The record supports the conclusionthat the jury likely was not misled. (People v. Hughes, supra, 27 Cal.4th at p. 341.) As such, appellant was not prejudiced. (Jbid.) 82 VI. THE TRIAL COURT PROPERLY DID NOT ORDER A COMPETENCY HEARING BECAUSE THERE WAS NO SUBSTANTIAL EVIDENCE THAT APPELLANT WAS INCOMPETENTTO STAND TRIAL In Argument 6 of his opening brief, appellant contendsthat thetrial court improperly deniedhistrial attorney’s request for a competencyhearing on three occasions. Appellant claimsthat he presented substantial evidence that he was mentally incompetent to stand trial, and that the trial court erred in failing to hold competency hearings in view of the evidence establishing that he was unable to understandthe nature ofthe proceedingsandrationally assist in his own defense. (AOB 109-123.) Appellant asserts that the trial court’s failure in this regard violated his rights “to due process oflaw,a fairtrial, trial by jury, confrontation and cross-examination,effective assistance of counsel, equal protection and reliable penalty verdict as guaranteed underthe Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.” (AOB109.) The record fails to support appellant’s claim of incompetencyto stand trial. Because appellant failed to present substantial evidence ofmental incompetence,the trial court was not obligated to initiate formal competency proceedings. A. The Relevant Proceedings 1. The May 15, 1995 Hearing On May 10, 1995, approximately six weeks before the scheduled beginning ofthe penalty phaseretrial, appellant’s trial counsel filed a motion requesting a competencyhearing pursuant to Penal Codesection 1368. The moving papers included a declaration from defense counsel summarizing the guilt phase mental health testimony andasserting that appellant suffered from 83 “deep-seated emotional trauma” which was preventing him from cooperating with the defense team. (2CT 424-426.) On May15, 1995,the trial court held a hearing on the defense motion. Dr. Michael Coburn, a psychiatrist, testified for the defense. (14RT 3307- 3308.) Dr. Coburn met with appellant on February 24 and March 17, 1995. (14RT 3308.) During the meetings, appellant expressed that he did not want to participate in the psychiatric evaluation. Dr. Coburn did not observe any evidence of psychosis, active delusions, hallucinations, or grossly illogical thinking. (14RT 3309.) Dr. Coburn opined that appellant suffered from depression and anxiety which inhibited appellant’s ability to cooperate in the evaluation. However, Dr. Coburn stated that he had no data to explain why appellant refused an evaluation, and that he had “no idea” what had caused appellantto act in that manner. (14RT 3310.) At the February 24, 1995, meeting, appellant acted respectful andpolite. When Dr. Coburn explained that he wanted to complete a psychiatric evaluation, appellant respondedthat he hated psychiatrists and doctors, and that he wanted the death penalty. (14RT 3312-3314.) Dr. Coburn testified that appellant’s decision that he wanted the death penalty was not indicative of incompetence,and that he knew ofother individuals who had madetherational choicenotto fight the death penalty. (14RT 3319-3320.) Appellant did nottell Dr. Coburn anyofhis history. Dr. Coburn decided not to question appellant any further. The meetinglasted approximately 20 minutes. Dr. Coburn did not reach any conclusions about appellant’s mental state. (14RT 3315-3316.) At the March 17, 1995, meeting, Dr. Coburn had “a small degree of substantive interview with [appellant], very minimal” about contact with appellant’s family. Appellant did not wantto talk about any issues involving emotions, memories, or the details of the murders. Dr. Coburn ended the meeting after approximately 20 or 30 minutes. (14RT 3317-3319.) 84 Throughout both interviews, there was never any indication that appellant wasdisoriented, unaware of Dr. Coburn’s presence,or that he could not understand Dr. Coburn. (14RT 3320.) Dr. Coburn opinedthat appellant’s “choosing not to cooperate is more a function ofterrible psychological discomfort than it is a rational decision to merely die in some rational way.” (14RT 3321.) Dr. Coburn testified that on March 22, 1995, he was present for a 45 minute meeting between appellant and Ms. Contreras, the defense team’s paralegal. Dr. Coburn did not attempt to collect any data from appellant. Instead, he observed the conversation between appellant and Ms. Contreras, but at the hearing he could notrecall the substance oftheir conversation. Appellant had no difficulty understanding or responding to questions. (14RT 3322-3327.) Dr. Coburn wentto the jail on a few other occasions, but the deputies told him that appellant did not want to speak with him. Dr. Coburn never received any history of the case from appellant. (14RT 3327-3328.) Dr. Coburn did not have enough data to determine whether appellant’s choice to accept the death penalty wasrational, although in Dr. Coburn’s “value system,” appellant’s reasons were notrational. (14RT 3330.) Thetrial court denied the motion, stating: Well, I can indicate to you that I haveat this pointin timeat least no doubt as to his competency. The fact remains he apparently has made a decision that he prefers the death penalty. I don’t find that troublesome. The problem is that what I get from Dr. Coburn isthat he’s not willing to discuss it and explain why,basically. Now, I don’t know whether that makes him incompetent. I don’t think that makes him incompetent, just, you know,it may bestrange. [1 (0) (1 85 I don’t - - don’t have a doubtas to his competency. I think to pursue the death penalty hearing,that - - that it would be at least, quote, nice to know as to why he cameto the conclusion that he cameto, though,I don’t think that makes him incompetent. I may - - my views maybe different were I so situated as maybe yours. But I don’t think that affects his competency. (14RT 3336-3337.) Appellant’s trial counsel argued that appellant was not voluntarily deciding not to cooperate with Dr. Coburn, but rather, he was unable to cooperate due to “some emotional discomfort.” (14RT 3339.) The trial court responded, “I don’t find based upon the informationI havethat he is incompetent.” (14RT 3341.) The court furtherstated, “If anything,J think he is probably quite competent” 14(RT 3342), and “I have no doubt in my mind he completely understands whatit is we’re talking about” (14RT 3344). 2. The June 28, 1995 Hearing On June 28, 1995, appellant’s trial counsel again requested that the trial court hold a formal competency hearing based on counsel’s beliefthat appellant was not competent. When counsel had attempted to interview appellant, appellant stated that he could not speak because“it hurts.” (15RT 3352-3353.) Dr. Coburn againtestified for the defense. He briefly spoke to appellant in a “one-way” conversation before the hearing that day, but otherwise had not met with appellant since the May 15, 1995 hearing. (15RT 3358-3360.) Dr. Coburn testified that a female psychologist had attempted to interview appellant, but appellant only minimally communicated with her. (15RT 3355- 3356.) Dr. Coburn knewthat appellant had been speaking with Ms. Contreras. (15RT 3360.) The morning ofthe hearing, Ms. Contreras told Dr. Coburn that appellanthadsaidthat hefelt “some kind of conspiracy against him was afoot.” 86 Dr. Coburn testified that he thought appellant was correct because the defense feam was“in conspiracy to get him to open up tous... .” Dr. Coburn had a suspicion,although not to a level ofmedicalcertainty, that appellant might be paranoid. He did not know the reason for appellant’s refusalto talk, although he believed it was volitional because appellant did not have any speech impairment or neurological reason for not speaking. Dr. Coburn could not determine if appellant’s motivation for not communicating in the psychiatric interviews was rational or not. (1SRT 3355-3356.) He did notoffer an opinion as to appellant’s competency, but in response to a defense question about whether he would urge the court to declare a doubt about appellant’s competency, Dr. Coburn responded, “Giventhe factthatit’s a life versus death situation, I would,yes.” (15RT 3362.) The trial court ruled that it did not have a doubt as to appellant’s competency, andthat the defense had failed to present substantial evidence that there was an issue as to appellant’s competency. (15RT 3365.) Regarding appellant’s choice not to communicate, the court furtherstated, ... 1 think choice, the word choice, itself, implies voluntary. And I’m convincedthat it is. As to whetherit is rationalor irrational, I don’t know. I guess, again, that depends on the subjective evaluation ofwhat it is that [appellant’s] goal happensto be. I think the goal of further delaying the proceeding is one that is uppermost in his mind. Therefore, I think the choice that he makesnot to speak to us,at least, in his view is a rational one, hoping that it will delay the proceedingsinfinitum... . (15RT 3366.) 87 3. The July 5, 1995 Hearing On July, 5, 1995, the day scheduled for the penalty retrial, appellant’s trial counsel asked the court to consider a doubt as to appellant’s competency. Hestated that appellant was not communicating, and that it was his goodfaith belief that the lack of communication was dueto a metal disorder as opposed to voluntary will. (16RT 3379.) The trial court stated that the issue had previously been resolved. (16RT 3380.) B. The Applicable Law Trial ofan incompetent defendant violates the due process clauseofthe Fourteenth Amendmentto the United States Constitution. (Godinez v. Moran (1993) 509 U.S. 389, 396; Drope v. Missouri (1975) 420 U.S. 162, 171) and article I, section 15 of the California Constitution. Those protections are implemented by statute in California. A defendant is presumed competent unlessit is proved otherwise by a preponderanceofthe evidence. (Pen. Code, § 1360, subd.(f).) A criminal defendantis incompetent and may not be “tried or adjudged to punishment”if“as a result ofmental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.” (Pen. Code, § 1367, subd. (a); People v. Koontz, supra, 27 Cal.4th at p. 1063.) Penal Code section 1368 mandates a competency hearing if a “doubt” as to a criminal defendant’s competence arises during trial. (Pen. Code, § 1368, subds. (a) & (b).) A “doubt” sufficient to trigger the obligation to suspend criminal proceedings and hold a hearing to determine a defendant’s competence to proceed meansthe existence ofsubstantial evidence ofincompetence. (People v. Hayes (1999) 21 Cal.4th 1211, 1281; People v. Pennington (1967) 66 Cal.2d 508, 518, applying Pate v. Robinson (1966) 383 U.S. 375.) “‘Substantial 88 evidence is evidence that raises a reasonable doubt about the defendant’s competenceto standtrial.”” (People v. Hayes, supra, 21 Cal.4th at p. 1281, quoting People v. Frye (1998) 18 Cal.4th 894, 952.) In the absenceof substantial evidence requiring a hearing, the decision to hold a hearingto assess a defendant’s competenceto standtrial 1s left to the sound discretion ofthe trial court. (People v. Gallego (1990) 52 Cal.3d 115, 162-163.) As this Court has noted, [s]ince neither abuse of discretion nor a doubt as a matter of law can possibly appear absentsubstantial evidence ofincompetence, appellate court inquiry need go no further than a determination of whether such substantial evidence was adduced. (People v. Laudermilk (1967) 67 Cal.2d 272, 283, fn. 10.) A trial court’s decision whether to grant a competency hearing is reviewed under an abuseof discretion standard. (People v. Ramos (2004) 34 Cal.4th 494,507.) C. Because There Was No Substantial Evidence OfIncompetence, The Trial Court Properly Did Not Hold A Competency Hearing Appellant contendsthatthetrial court erred whenit denied his counsel’s requests for a formal competencyhearing on May 15, June 28,and July 5, 1995. (AOB 109-122.) On each occasion,the trial court properly denied appellant’s request because hefailed to present substantial evidencethatraised a reasonable doubt as to his competenceto standtrial. As such,the trial court’s decision was not error. At each ofthe three hearings, appellantfailed to present evidence that raised a reasonable doubt about his competence. At the May 15, 1995,hearing, Dr. Coburn testified that he had only met with appellant on three occasions, for a total of only approximately 1 hour and 35 minutes, 45 minutes of which Dr. Coburn simply observed appellant interact with the defense paralegal. While 89 with appellant, Dr. Coburn never observed him exhibit any evidence of psychosis, active delusions,hallucinations, or grossly illogical thinking. (14RT 3309.) Dr. Coburn never opinedthat appellant was unable to understand the nature ofthe trial proceedingsorto assist his attorney. Rather, Dr. Coburn’s testimony focused on appellant’s unwillingness to participate in a psychological exam. However, as Dr. Coburn admitted, this unwillingness to cooperate was not necessarily a sign of incompetence. At the June 28, 1995, hearing, the evidence presented was even more minimal. Appellant’s trial counsel told the court that when he had attempted to interview appellant, he stated that he could not speak because “it hurts .” (15RT 3352-3353.) Dr. Coburn testified that he had only briefly spoke to appellantin a “one-way” conversation before the hearing that day (RT 3358- 3360), and he did not offer an opinion as to appellant’s competency. Finally, at the July 5, 1995, hearing, appellant’s trial counsel presented no evidence, and instead merely asked the trial court to consider a doubt as to appellant’s competency based on appellant’s lack of communication. (16RT 3379.) Whether considered cumulatively or individually, each reason that appellant now argues mandated a competency hearing was insufficient. As the record reflects, Dr. Coburn never expressed the opinion that appellant could not understand the nature of the proceedings, nor did he expressly comment on appellant’s ability to rationally assist in his defense. Dr. Coburn’s testimony primarily focused on appellant’s unwillingness to engage in a psychological exam or discuss the murders, and his decision to not oppose the death penalty. As the trial court found, none of these facts compels the conclusion that appellant was incompetent. In fact, respondent submits evidence ofappellant’s unwillingness to talk about the gruesomefacts ofthe murders andto acceptthe 90 death penalty is indicative ofhis understandingasto the gravely serious nature Of his situation. Appellantalso asserts that his trial attorney’s complaints about his lack of cooperation was a sufficient basis to hold a formal competency hearing. (AOB 122.) He is wrong. Penal Code section 1368 requires a formal competency hearing only if a doubt arises in the mind of the judge as to the defendant’s competence or the court is presented “evidence that raises a reasonable doubt aboutthe defendant’s competenceto standtrial.” (People v. Hayes, supra, 21 Cal.4th at p. 1281.) A court is not required to hold a competency hearing based solely upon counsel’s view that a defendantis incompetent. (People v. Frye, supra, 18 Cal.4th at p. 953.) Indeed, this Court hasnotedthat an attorney’s statementsthathis client is incapable of cooperating in his defense can be insufficient to require a hearing. (See People v. Laudermilk, supra, 67 Cal.2d at p. 285, citing People v. Dailey (1959) 175 Cal.App.2d 101, 108-109.) In addition, as Dr. Coburn testified, appellant’s decision not to oppose the death penalty was notindicative ofincompetence. (14RT 3319-3320.) This Court also has “rejected the notion that a defendant’s choice notto presenta defense, even at the penalty phase, amounts to substantial evidence of incompetence.” (People v. Blair (2005) 36 Cal.4th 686, 718 citing Peoplev. Bradford (1997) 15 Cal.4th 1229, 1373 [defendant’s choice not to present a defense at the penalty phase did not compel a doubt as to his competenceto stand trial and represent himself].) “A defendant's preference for the death penalty and overall death wish does not alone amountto substantial evidence of incompetence or evidence requiring the court to order an independent psychiatric evaluation.” (People v. Ramos, supra, 34 Cal.4th at p. 509 citing People v. Guzman (1988) 45 Cal.3d 915, 963-965.) 91 Furthermore, appellant failed to present substantial evidence that his choice not to oppose the death penalty was involuntarily caused by mental illness, as opposedto being a voluntary decision. Asthetrial court noted, while it may have been “nice to know as to why he cameto the conclusion he came to... that [doesn’t] make him incompetent.” (14RT 3336.) Here, Dr. Coburn nevertestified that appellant’s choice was involuntary due to mental illness. Furthermore, appellant’s refusal to cooperate with Dr. Cobum’s psychological evaluation does not conclusively indicate a lack of competence to standtrial. (People v. Blair, supra, 36 Cal.4th at p. 719 [defendant’s refusal to be examined by a psychiatrist, incarceration at a prison for the mentally ill, insistence on remainingin propria persona,andfiling numerous motionsdid not compel a doubt concerning defendant's competence].) In addition, contrary to appellant’s contentions, there was no conclusive evidencethat he wassuicidal or a paranoid schizophrenicpriorto, or at the time ofthe murders. (AOB 120-121.) Even assuming appellant suffered from these conditions, the record does notindicate that the disorders rendered him mentally incompetent to understand the proceedingsorassist defense counselat the time of the penalty phaseretrial in 1995. Appellantrelies on Dr. Wells’ testimony at the guilt phase regarding appellant’s mental condition at the time of the murders (AOB 121), yet that testimony offers nothing to support his argument that he was incompetent for purposesofthe penalty phaseretrial two yearsafter the murders when counsel brought the motion. “[E]vidence regarding past events that does no more than form the basis for speculation regarding possible current incompetenceis not sufficient.” (People v. Hayes, supra, 21 Cal.4th at p. 1281.) As Dr. Coburn stated at the May 15, 1995, hearing,the psychological data from the guilt phase ofthe trial was ofno value in determining appellant’s competencyfor the penalty phase. (14RT 3331.) 92 Moreover, appellant’s claimsofprior mentalillness pale in comparison to other defendants’ histories of mental illness in cases where this Court has found those defendants competent to standtrial. In People v. Blair, supra, 36 CalAth 686, 714, this Court noted that“even a history of serious mental illness does not necessarily constitute substantial evidence ofincompetence that would require a court to declare a doubt concerning a defendant's competence and to conducta hearing onthatissue.” (See also People v. Ramos, supra, 34 Cal4th at p. 508 [defendant mustexhibit more than a preexisting psychiatric condition to be entitled to a competency hearing; a death wish, a history of psychiatric treatment, planned suicide attempt, propensity for violence, and psychiatric testimonythat defendant wasphysically abused as a child and suffered from a paranoid personality disorder did not constitute substantial evidence of incompetence requiring court to conduct a competency hearing]; People v. Grant (1988) 45 Cal.3d 829 [defendant’s propensity for violence, hoarding medication for an alleged suicide attempt, andhistory of psychiatric treatment did not indicate he was incompetentat the time he pleaded guilty].) Finally, although a trial court maynotrely solely on its observations of a defendantin the courtroom, if there is substantial evidence ofincompetence,the court’s observations and objective opinion do become important when no substantial evidenceexists that the defendant is less than competentto plead guilty or standtrial. [Citation.] (People v. Ramos, supra, 34 Cal.4th at p. 509.) Asset forth supra, evidence of appellant’s incompetence was not substantial. As such, the trial court’s observations and objective opinion are relevant. Here,the trial court observed appellant on a daily basis over an extendedperiod oftime, and concluded that based on those observations, “I have no doubt in my mind he completely understands whatit is we’re talking about...” (14RT 3344), and,“T think the 93 choice that he makes not to speak to us, at least, in his view is a rational one, hoping thatit will delay the proceedings infinitum ....” (14RT 3366.) Thus, appellant failed on each of the three occasions to present substantial evidence that raised a reasonable doubt as to his competence. “Whetherthe facts outlined above are considered separately or cumulatively, ‘the recordin the present case doesnotindicate that a reasonable doubt existed [or should haveexisted]as to [appellant’s] ability to understand the proceedings against him.’” (People v. Blair, supra, 36 Cal.4th at p. 719 citing People v. Bradford, supra, 15 Cal.4th at p. 1373.) Thus,the trial court properly exercised its discretion in declining to order a further hearing on the matter, and appellant’s claim herein must be rejected. 94 VII. CALJIC 3.32 PROPERLY INSTRUCTED THE JURY TO CONSIDER APPELLANT’S ALLEGED MENTAL DISORDERS IN DETERMINING THE ISSUES OF DELIBERATION, INTENT TO KILL, MALICE, AND PREMEDITATION In Argument 7 of his opening brief, appellant contendsthat the trial court erred by instructing the jury with a version of CALJIC No. 3.32 (Evidence of Mental Disease-Received for Limited Purpose) that stated the jury’s consideration of appellant’s alleged mental disorder was permissive rather than mandatory. (AOB 124-128.) Appellant also asserts that the jury was likely confused by the use of the language “and/or”in the instruction. (AOB128-130.) Appellant claims that the erroneous instruction violated his right to due process, and deprived him ofhis rightto reliable fact-finding in a capital case under the Eighth and Fourteenth Amendments. (AOB 130.) Appellant’s claims should be rejected as there is no reasonable likelihood that the jury was misled bythe instruction. A. The Relevant Proceedings Thetrial court instructed the jury with CALJIC 3.32 as follows: Evidence has been received regarding a mental disease, mental defect, or mental disorder of the defendant, Sergio Nelson [at] the time ofthe crimes charged, namely first degree murder in count 1 and 2, and the lesser crimes thereto, namely second degree murder, voluntary manslaughter and involuntary manslaughter. You may consider such evidence solely for the purpose of determining whether of [sic] the defendant, Sergio Nelson, actually premeditated, deliberated, harbored malice aforethought, and/or intent to kill, which are elements of the crimes charged in counts | and 2, and 95 _ one of which namely malice aforethought is an element of the lesser crime of second degree murder. (ORT 2724-2725.) Appellant’s trial counsel requested an instruction that would have informed the jurors that they “should consider” appellant’s alleged mental disorder.” (9RT 2673.) Thetrial court instead instructed the jury with the 1994 version of CALJIC No. 3.32 which stated the jury “may consider” evidenceof appellant’s alleged mental disorder2® (ORT 2724-2725.) B. The Instruction Did Not Compel The Jury To Ignore Evidence Of Mental Disease Appellant contends that the words “may consider” in the instruction permitted the jury to ignore evidence (his alleged mentalillness) that he did not have the mental state required for first degree murderbytelling the jury that such evidence was permissive rather than mandatory. (AOB 126-127.) 27. The proposedinstructionstated: In the crime ofmurder, which the defendantis accused,in count 1 and 2 of the information, express malice aforethought premeditation, and deliberation are necessary mentalstate [sic] to a finding offirst-degree murder. [§] If you find that the defendanthad a mental defect, disease, or disorder, at the time of the alleged crime, you should consider that fact in determining whether the defendant had such mentalstate. [{] If from all the evidence you have a reasonable doubt whether the defendant formed any such mentalstate, you mustfind that he did not have such a mentalstate. (ORT 2673.) 28. Appellant contends that the trial court instructed the jury with a “modified” version ofCALJIC 3.32. He is incorrect. At the time of appellant’s trial in December 1994, CALJIC No. 3.32 contained the term “may consider,” and this is the version read bythetrial court. The instruction was modified in 1996 to state “should consider.” (CALJIC 3.32 (6th ed. 1996).) 96 Contrary to appellant’s assertion, the instruction did nottell the jury to ignore the evidenceofhis alleged mentalillness. Regardless ofwhetherthe jurors are told thatthey “should”or “may”consider evidenceofa mentaldisease,the fact remainsthatthey are beingtold that a mental disease can affect the defendant’s mental state. When read in the context of the entire instruction, the use of “may” does not give the jury discretion to disregard the evidence of mental disease or defect. Rather, the instruction informs the jurors that they can only consider the evidence for determining the defendant’s mental state and notfor any other purposes. In People v. Smithey, supra, 20 Cal.4th at p. 986, the defendant claimed that his trial counsel was ineffective for not requesting a pinpointinstruction advisingthe jury that it could consider his mental disorders in combination with his intoxication when determining his mentalstate at the time ofthe crime. The jury wasinstructed with the same version ofCALJIC No.3.32 as in the present case, and “anotherinstruction allowingit to consider evidence of intoxication in determining whether defendant possessed such mentalstates.” (/bid.) This Court held that: The instructions as a whole adequately informed the jury that it could considerthe evidence of defendant's mental disease or defect, together with the evidence of his intoxication, in deciding whether the prosecution hadcarriedits burden ofproving the mental elements ofthe charged crimes beyond a reasonable doubt. The instructions did not hinder defense counsel from emphasizing to the jury during the closing guilt phase argumentthat the requisite mentalstates had not been proven because defendant's mental disease, defect, or disorder had exacerbated the effects of his intoxication. [Citations.] There is no reasonable likelihood that the jury was led to believe that it could not consider evidence of the combined effect of defendant's mental disorder and 97 _ intoxication in determining his mental state. [Citation.] Therefore, defendant was not prejudiced by his counsel's failure to request an additional instruction. (People v. Smithey, supra, 20 Cal.4th at pp. 986-987.) As in Smithey, here, there is no reasonablelikelihood that the jury was led to believe that it could not consider evidence of appellant’s mental disease in determining his mental state. In this case, the court instructedthe jury as to the various mental states and specific intents required to establish the crimes charged, including premeditation and deliberation. The instructions further explained that if the evidence regarding an intent or mentalstate is susceptible of two reasonableinterpretations, the jury must adopt the one favorable to the defendant. ‘“<[T]he correctnessofjury instructions is to be determined from the entire charge ofthe court, not from a consideration ofparts of an instruction or from particular instruction.’ [Citation.]” (People v. Castillo (1997) 16 Cal.4th 1009, 1015.) Furthermore, appellant’s defense counselargued that the requisite mental states had not been proven when hestated that due to appellant’s paranoid schizophrenia, he misconstruedthe situation involving the victims. In any event, any errorin failing to instruct under CALJIC No. 3.32 was harmless in light of the other instructions in the case and defense counsel’s argument, as set forth above. (People v. Ervin (2000) 22 Cal.4th 48, 91.) On this record, it was not reasonably probable the jury would have reached a different verdict had the trial court substituted “should consider” for “may consider.” (See People v. Watson, supra, 46 Cal.2d at p. 836.) C. The Term “And/Or” Did Not Render The Instruction Confusing Appellant contends that the words “and/or” as used in CALJIC No.3.32 are “hopelessly ambiguous,” and likely confused the jury. (AOB 128-130.) However, as set forth, supra, the instruction states a correct principal of law, 98 and if appellant wanteda clarification he needed to request suchclarification as to those specific words. (People v. Hillhouse (2002) 27 Cal.4th 469, 503 [A party may not argue on appealthat an instruction correct in law was too general or incomplete, and thus neededclarification, withoutfirst requesting such clarification at trial.”].) Here, appellant did not specifically raise an objection to the “and/or” language. As such, his claim should be rejected. Moreover, as previously discussed, in light of the other instructions,it is not reasonably probablethat the jury considered the evidence ofmentalillness only in regards to negating premeditation, but not the specific intent to kill or deliberation as appellant contends. (AOB 130.) Evenifthe “and/or” language had been modified, it is not reasonably probable that appellant would have received a more favorable verdict in light of the overwhelming evidence of premeditation anddeliberation. (See People v. Watson, supra, 46 Cal.2dat p. 836.) 99 VIN. SUFFICIENT EVIDENCE SUPPORTED THE LYING-IN- WAIT FIRST DEGREE MURDER THEORY AND THE LYING-IN-WAIT SPECIAL CIRCUMSTANCES In Argument 8 of his opening brief, appellant contends that the trial court improperly instructed the jury on the first degree murder theory of lying- in-wait and the special circumstance oflying-in-wait because the evidence was insufficient to show that he killed Robin Shirley and Lee Thompson by means oflying-in-waitor that he intentionally killed them while lying-in-wait. (AOB 131-141.) Appellant furtherasserts that because the jury acted unreasonably in finding true the lying-in-wait special circumstanceallegations, the first degree murder convictions and special circumstances findings were obtained in violation of his right to due process of law under the Fourteenth Amendment to the United States Constitution and article 1 Section 13 of the California Constitution. (AOB 131.) All of appellant’s claims lack merit. 100 A. The Relevant Proceedings Thetrial court instructed the jury with CALJIC No. 8.25%” (Murder by Means of Lying In Wait) on the lying-in-wait theory of first degree murder (ORT 2718-2719), and CALJIC No. 8.81.15*% (Special Circumstances - - 29. Thetrial court instructed the jury pursuant to CALJIC No.8.25 as follows: Murder, which is immediately preceded by lying-in-wait is murder of the first degree. [§] The term “lying-in-wait” is defined as a waiting and watching for an opportunetimetoact, together with a concealment by ambushor by someothersecret design to take the other person by surprise even though the victim is aware of the murderer’s presence. The lying-in-wait need not continuefor any particular period of time, providedits duration is such as to show a state of mind equivalent to premeditation or deliberation. [f]] The word “premeditation” means formed orarrived at or determined uponasa result of careful thought and weighing of conditions for and against the proposed course ofaction. (ORT 2718-2719.) 30. Thetrial court instructed the jury pursuant to CALJIC No. 8.81.15 as follows: In the guilt phaseofthistrial, the jury wasinstructed also as follows: [{] To find that the special circumstancesreferred to in these instructions as murder while lying-in-wait is true each of the following facts must be proved: .[{]] The term “lying-in- wait,” is defined as a waiting and watching for an opportune time to act, together with a concealment by ambushor by someother secret design to take the other person by surprise even thoughthe victim is aware of the murderer’s presence. The lying-in-wait need not continuefor any particular period of time, provided its duration is such as to show a state of mind equivalent to premeditation or deliberation. [{] Thus, for a killing to be perpetrated while lying-in-wait, both the concealment and watchful waiting, as well the killing, must occur during the same time period or in an uninterrupted attack commencing nolater than the moment concealment ends. [{] If there is a clear interruption separating the period of lying-in-wait from the period during which the killing takes place, so that there is neither an immediate killing nor a continuous flow of the 101 Murder While Lying in Wait), on the lying-in-wait special circumstance. (32RT 5421-5423.) Appellant’s trial counsel objected to CALJIC No. 8.25 on the groundsofinsufficient evidence (9RT 2583), howeverhe did not object to CALJIC No.8.81.15. (31RT 5363-5365.) B. The Applicable Law In an insufficiency of the evidence claim, the reviewing court must determine “whether, after viewing the evidencein the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citations.] [The court] examine[s] the record to determine “whether it shows evidence that is reasonable, credible andofsolid value from whicha rationaltrier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] Further, “the appellate court presumes in support of the judgmentthe existence of every fact the trier could reasonably deduce from the evidence.” (People v. Catlin, supra, 26 Cal.4th 81, 139, quoting Jackson v. Virginia (1979) 443 US. 307, 319.) uninterrupted lethal events, the special circumstance is not proved. [{] ...A mere concealmentofpurposeis not sufficient to meet the requirement ofconcealmentasset forth in this special circumstances. However, when a defendant intentionally murders another person under the circumstances which include a concealment of purpose, a substantial period of watching and waiting for an opportune time to act and immediately thereafter a surprise attack upon an unsuspecting victim from position of advantage, the special circumstances of murder while lying in wait has been established. (32RT 5421-5423.) 102 _ To prove [first degree murder under a] lying in wait [theory], the prosecution must prove there was a concealment of purpose, a substantial period ofwatching and waiting for a favorable or opportune time to act, and that immediately thereafter the defendant launched a surprise attack on an unsuspecting victim from a position of advantage. (People v. Gurule (2002) 28 Cal.4th 557, 630.) “(Murderby meansoflying in wait requires only a wantonandreckless intentto inflict injury likely to cause death. [Citations.]” [Citation.] In contrast, the lying in wait special circumstance requires “an intentional murder, committed under circumstances which include (1) a concealmentofpurpose,(2) a substantial period ofwatching andwaiting for an opportunetimeto act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage...” (People v. Gutierrez, supra, 28 Cal.4th at pp. 1148-1149, fn. omitted.) Therefore, if this Court finds that “the evidence supports the special circumstance,it necessarily supports the theory offirst degree murder.” (People v. Carpenter (1997) 15 Cal.4th 312, 388.) C. Legal Analysis Appellant contendsthat there was insufficient evidence to prove that he spent a “substantial period”period oftime watching and waiting for a favorable or opportune timeto act, and that the prosecutor concededthis lack of evidence during his closing argument whenhestated thatit was “possible” that appellant “might” have left his house early enough so that he would not missthe victims. (AOB 131-137.) Contrary to appellant’s contention,there is no requirementthatthe killer spend a defined amountof time watching and waiting before committing the murders. As set forth in CALJIC No. 8.25 (Lying In Wait Theory of First 103 Degree Murder), “[t]he lying in wait need not continue for any particular period oftime providedthatits duration is such as to show a state ofmind equivalent to premeditation ordeliberation.” The instruction for the lying-in-wait special circumstance, CALJIC No.8.81.15.1, states the same language. Moreover, although the period of watching and waiting must be “substantial” (People v. Hillhouse, supra, 27 Cal.4th at p. 500), this Court has “neverplaced a fixed timelimit on this requirement.” (People v. Moon (2005) 37 Cal.4th 1, 23 [finding sufficient evidence ofthe watching and waiting for a substantial period of time under the special circumstance allegation where defendanttestified that he waited only 90 secondsafter the victim returned home before killing her].) “The precise period of time [for watching and waiting] is also notcritical.” (People v. Ceja (1993) 4 Cal.4th 1134, 1145.) In fact, “a few minutes can suffice.” (People v. Moon, supra, 37 Cal.4th at p. 23 citing People v. Edwards (1991) 54 Cal.3d 787, 825-825 [wait was only a matter of minutes] and People v. Superior Court (Lujan) (1999) 73 Cal. App.4th 1123 [two minutes sufficed].) In this case, the jury could reasonably infer that appellant spent substantial time watching and waiting before killing the victims. The evidence is clear that appellant rode his bicycle to Target before 3:30 a.m. to commit the murders. Yet, after he killed the victims, eyewitness Richard Hart observed appellant walk away from the murdersceneto the endofthe nearby sidewalk. (3RT 1027-1040.) Several minutes later, Sergeant Williams observed appellant traveling on the bicycle southbound on White Avenue. (4RT 1102-1 114.) Clearly, the bicycle was not in the immediate vicinity of the victims’ cars because appellant had to walk away from the sceneto retrieve it. The jury could reasonably infer that appellant had concealed the bicycle elsewhere before the victims arrived, otherwise they would have seen him peddle up andhide the bicycle. 104 Moreover, appellant was familiar with Robin Shirley’s silver truck because she had driven him to work on several occasions, and he knew exactly what time she arrived each day becausetheystarted their shifts at the sametime. He admitted to the police that he and Shirley frequently arrived at Target early in the morning to wait for the managerto open the store. (Supp. II 2CT 281- 315; Ex. 37, transcript of 10/4/93 interview.) It was common knowledgeto many employees that Shirley regularly parked her truck in the exact area ofthe Target parking lot where appellant committed the murders. Shirley and Thompson,as well as other employees whoarrived early, often gathered in that areato sit in their cars andtalk orlisten to the radio before the store opened. It was not uncommonfor Shirley and Thompsonto be together outside the store before work. (4RT 1142; 5RT 1377, 1404, 1446.) The jury could reasonably concludethat based on appellant’s knowledgeofwhattime Shirley arrived for work, and the location where she always parked, he knew exactly where to position himself as he watched and waited for the victims to arrive on the morning of the murders. In addition, the physical evidencestrongly supports the conclusion that appellant was watching and waiting before he killed the victims. Before the shootings, enough time passed for Shirley to exit her truck and enter the Plymouth. Moretime passedas the victimsrolled the rear windows down and turned on the radio. The victims’ bodies were foundin positions whichindicate that they had been caught unaware: Thompson’sseat was slightly reclined, both victims were facing forward,and their arms were relaxed. In addition,the shots were fired from the rear left window at an extremely close range. (4RT 1080- 1088, 1090, 1092; 5RT 1607, 1632-1647.) The mannerofthe killing suggests that appellant waited to strike until the victims were relaxed, vulnerable, and completely unaware of his presence. To commit the killings from such an advantageousposition, the jury could reasonablyinfer that appellant watched 105 the victims and waited until the most opportune momentto surprise and attack them. Appellant also contends that underthe rule set forth in People v. Green (1980) 27 Cal.3d 1, and People v. Guiton, supra, 4 Cal.4th at p. 1132,thetrial court’s instructional error requires reversalof the first degree murder verdicts and lying-in-wait special circumstances. (AOB 138-140.) Underthe rule in People v. Green, supra, 27 Cal.3d at p. 69, whenthe prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on whichtheory the ensuing generalverdict of guilt rested, the conviction cannotstand. Appellant argues that even if there is sufficient evidence of the alternative theory offirst degree premeditated murder, the verdicts must be reversed. He contends that because sufficient evidence did not support the lying-in-wait theory offirst degree murderor the lying-in-wait special circumstance, the jury acted “unreasonably,” andthereis “an affirmative indication”that the verdict rested on an inadequate ground. (AOB 139-140citing People v. Guiton, supra, 4 Cal.4th at p. 1129.) First, as set forth in respondent’s ArgumentI, supra, there is a remaining valid theory ofpremeditatedfirst degree murder. Second, because respondent has demonstrated that the evidence was sufficient to warrant the trial court’s instructions on the lying-in-wait theory offirst degree murderandthe lying-in- wait special circumstance,as set forth above, this Court need not decide “the second question” of whether reversal is required under the remaining valid theory of first degree murder. (People v. Ceja, supra, 4 Cal.4th at p. 1137.) Third, because the evidence supported the lying-in-wait special circumstance finding, this finding “show[s] the jury necessarily concluded the killing was committed . . . by lying in wait. Thus, we knowthat the first degree murder 106 verdict rested on at least one correct theory.” (People v. Hillhouse, supra, 27 Cal.4th at p. 499 citing People v. Kelly (1992) 1 Cal.4th 495, 531 and People v. Guiton, supra, 4 Cal.4th at p. 1130.) Finally, even ifthe lying-in-wait special circumstanceis reversed,the death judgment maystill be upheld based on the jury’s true finding on the multiple murderspecial circumstance. (People v. Silva (1988) 45 Cal.3d 604, 632.) The evidencein this case “logically supports the inference [citation] that the shooting was not a sudden outburst of provoked passion, but was the culmination of a plan to take [the] victim[s] by surprise from a position of advantage.” (People v. Ceja, supra, 4 Cal.4th at p. 1143; see respondent’s ArgumentI.) Morethan substantial evidence supported the jury’s true finding on the lying-in-wait special circumstance. Assuch, the evidence “necessarily supports the theory of first degree [lying in wait] murder.” (People v. Carpenter (1997) 15 Cal.4th 312, 388.) 107 IX. THE TRIAL COURT PROPERLY INSTRUCTED THE JURY ON EFFORTS TO SUPPRESS EVIDENCE ‘AND CONSCIOUSNESSOF GUILT In Argument 9 ofhis openingbrief, appellant contendsthat instructions regarding evidence of consciousnessof guilt prejudicially violated his rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and the parallel provisions of the California Constitution. Specifically, appellant contends that instructing the jury with CALJIC Nos. 2.032" [Consciousness of Guilt--Falsehood], 2.06%” [Efforts to Suppress Evidence], and 2.52?” [Flight After Crime] were unfairly argumentative in 31. Thetrial court instructed the jury pursuant to CALJIC No.2.03,as follows: If you find that before this trial the defendant made a willfully false or deliberately misleading statement concerning the crimes for which he is now being tried, you may consider such statement as a circumstance tending to prove the consciousness of guilt. However, such conduct is not sufficient by itselfto prove guilt, and its weight andsignificance, if any, are matters for your determination. (ORT 2700.) 32. Thetrial court instructed the jury pursuant to CALJIC No.2.06,as follows: If you find that a defendant attempted to suppress evidenceagainst himselfin any manner, such as by [concealing] evidence, such attempt may be considered by you as a circumstance tending to show a consciousness of guilt. [{] However, such conductis notsufficient by itself to prove guilt, and its weight and significance, if any, are matters for your consideration. (QRT 2700-2701.) 33. Thetrial court instructed the jury pursuant to CALJIC No.2.52,as follows: Theflight of a person immediately after the commission of a crime,or after he is accused of a crime,is not sufficient in 108 favorofthe prosecution and permitted the jury to draw anirrational permissive inference of consciousness of guilt. (AOB 142-156.) Appellant further claims that because he conceded committing the shootingsattrial, but the degree ofthe crimes wasat issue, the instructions were prejudicial. Appellant’s arguments should be rejected because, as he concedes,this Court has repeatedly rejected identical claims as to the consciousness of guilt instructions. A. Legal Analysis First, appellant contends that CALJIC Nos.2.03 and 2.06are unfairly partisan and argumentative. (AOB 144-149.) Appellant concedesthat this Court hasrejected a challenge to the consciousnessofguilt instructions on these samegrounds in People v. Nakahara (2003) 30 Cal.4th 705, 713. (AOB 145.) In addition, this Court has repeatedly rejected similar claims. (See People v. San Nicolas (2004) 34 Cal.4th 614, 666-667 [consciousness of guilt instructions properregarding post-crimestatements, even when defendant had confessed]; People v. Coffman (2004) 34 Cal.4th 1, 102-103 [CALJIC No.2.06 proper, even though notspecific as to which counts they applied, because they do not direct the jury to infer guilt of all crimes charged]; People v. Holloway (2004) 33 Cal.4th 96, 142 [consciousness of guilt instructions neither argumentative nor fundamentally unfair]; People v. Yeoman (2003) 31 Cal.4th 93, 131-132; People v. Boyette (2002) 29 Cal.4th 381, 438 [CALJIC Nos.2.03, 2.06, and 2.52 did not improperly endorse prosecution’s theory or lessen its burden ofproofin capital murder prosecution and were not improper pinpoint itself to establish his or her guilt, but is a fact which, if proved, may be consideredby youin thelight of all other proved facts in deciding the question of his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine. (ORT 2706.) 109 instructions].) Moreover, ““[t]he cautionary nature ofthe instructions benefits ‘the defense, admonishing the jury to circumspection regarding evidence that 999 might otherwise be considered decisively inculpatory.’” (People v. Holloway (2004) 33 Cal.4th 96, 142, quoting People v. Jackson (1996) 13 Cal.4th 1164, 1224.) Appellant also contends that the consciousness of guilt instructions permitted the jury to draw improper permissive inferences abouthis guilt. (AOB 149-155.) Again, appellant concedesthat this Court has rejected the claim that consciousness of guilt instructions permit irrational inferences concerning a defendant’s mental state. (AOB 152 citing People v. Hughes, supra, 27 Cal.4th at p. 348 [CALJIC No.2.03]; People v. Nicolaus (1991) 54 Cal.3d 551, 579 [CALJIC Nos. 2.03 & 2.52]; People v. Boyette (2002) 29 Cal.4th 381, 438-439 [CALJIC Nos. 2.03, 2.06 & 2.52].) Having offered no compelling reasons why this Court’s previous holdings should be overruled, appellant’s claims should berejected. B. Harmless Error Finally, any error in the giving ofthe instructions was harmless under the Watson standard of prejudice. (See People v. San Nicolas (2004) 34 Cal.4th 614, 667.) The evidence of appellant’s guilt was overwhelming. Moreover, even absent the instructions appellant challenges, the jury wouldstill have been instructed regarding circumstantial evidence pursuant to CALJIC Nos. 2.00, 2.01, and 2.02, such that the prosecutor could still have argued that appellant’s actions after the murders were circumstantial evidence of appellant’s guilt withoutthe benefit ofthe cautionary language in CALJIC Nos. 2.03, 2.06, and 2.52, that such evidenceis not sufficient by itself to prove guilt. (See People v. Holloway, supra, 33 Cal.4th at p. 142 [even without consciousness of guilt instructions, jury would draw the same inference and prosecutor could argue 110 guilt based on willful falsehood or suppression of evidence].) In sum,any error “in giving the instructions was harmless. 111 X. THE TRIAL COURT PROPERLY INSTRUCTED THE JURY WITH CALJIC NO.2.51 In Argument12 ofhis openingbrief, appellant contendsthattrial court erred when it instructed the jury with CALJIC No. 2.51, the standard instruction on motive. Appellant asserts that the instruction was improper because: (1) it “allowed the jury to determine guilt based uponthe presence of an alleged motive”; and(2)it “shifted the burden ofproofto appellant to show an absence ofmotiveto establish innocence, thereby lessening the prosecution’s burden of proof.” (AOB 157-162.) Appellant’s argumentsfail because this Court has previously rejected similar contentions. A. Waiver Appellant’s claim is not cognizable on appeal becausehe did not object to CALJIC No.2.51 at trial. This Court found a similar claim waived in People v. Cleveland (2004) 32 Cal.4th 704, 750. There, the defendants requested CALJIC No.2.51 attrial, but on appeal claimedthat the instruction impliedthat evidence of motive alone was sufficient to prove guilt. (/bid.) This Court concludedthat the claim was waived because such an “argument merely goes to the clarity of the instruction.” (Jbid.; see People v. Hillhouse, supra, 27 Cal.4th at p. 503 [“A party may not argue on appealthat an instruction correct 34. Thetrial court instructed the jury pursuant to CALJIC No.2.51, as follows: Motiveis not an element of the crime charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. Presence of motive may tend to establish guilt. Absence ofmotive maytendto establish innocence. You will therefore give its presence or absence,as the case may be, the weight to which you findit to be entitled. (QRT 2705-2706.) 112 in-law was too general or incomplete, and thus needed clarification, without first requesting such clarification attrial.”].) This Court explained that, “Tif defendants had thought the instruction should be clarified to avoid any implication that motive alone could establish guilt, they should have so requested. They did not. [Citation.]” (People v. Cleveland, supra, 32 Cal.4th at p. 750, citing People v. Hillhouse, supra, 27 Cal.4th at p. 504.) As such, appellant has failed to preserve this claim on appeal. (People v. Cleveland, supra, 27 Cal.4th at p. 750.) B. TheInstruction Did Not Allow The Jury To Determine Guilt Based On Motive Alone Appellant claims CALJIC No. 2.51 was erroneous, in part, becauseit “improperly allowed the jury to determine guilt based uponthe presence of an alleged motive... .” (AOB 157.) Notwithstanding appellant’s waiver, his claim that the instruction allowed the jury to determine guilt based on motive aloneis meritless. In People v. Snow (2003) 30 Cal.4th 43, 97-98, this Court rejected an identical argument, explaining: Ifthe challenged instruction somehow suggested that motive alone was sufficient to establish guilt, defendant’s point might have merit. But in fact the instruction tells the jury that motive is not an element of the crime charged (murder) and need not be shown, which leaveslittle conceptual room forthe idea that motive could establish ail the elements of murder. When CALJIC No. 2.51 is taken together with the instruction on the concurrence of act and specific intent (CALJIC No. 3.31) and the instruction outlining the elements ofmurderand requiring each of them to be proved in order to prove the crime (CALJIC No. 8.10), there is no reasonable likelihood (People v. Frye, supra, 18 113 _ Cal.4th at p. 958) it would be read as suggesting that proof of motive alone may establish guilt of murder. (Italics in original; see People v. Cleveland, supra, 32 Cal.4th at p. 750 [CALJIC No.2.51 wasnot erroneous because it was not reasonably likely that the jury would infer CALJIC No. 2.51 implied that motive alone wassufficient to prove guilt in light of the reasonable doubt instruction, and it was not prejudicial “given the strong evidenceof guilt aside from motive”’].) Here, the trial court instructed the jury on the concurrence of act and specific intent with CALJIC No. 3.31, on the elements ofmurder with CALJIC No. 8.10, and on reasonable doubt with CALJIC No. 2.90. Given the entire charge, CALJIC No. 2.51 was not erroneous or ambiguous. (People v. Snow, supra, 30 Cal.4th at pp. 97-98; see People v. Cleveland, supra, 32 Cal.Ath atp. 750.) Also, the instruction was not prejudicial because there was substantial evidence of appellant’s guilt (see Arg. I, ante) such that “the jury certainly did notbaseits verdicts solely on motive.” (People v. Cleveland, supra, 32 Cal.4th at p. 750.) Thus, just as in Snow and Cleveland, this Court should reject appellant’s challenge to CALJIC No.2.51. C. The Instruction Did Not Lessen The Prosecutor’s Burden OfProof Or Violate Due Process Appellant also claims that CALJIC No.2.51 violated his rights because by stating that “motive was not an element of the crime,” the instruction lessened the prosecution’s burden of proving beyond a reasonable doubt that he harbored malice aforethought because “[t]here is no logical way to distinguish motive from intent in this case.” (AOB 159-161.) CALJIC No.2.51’s statementthat “motive is not an element ofthe crime charged”did notserve to lessen the prosecution’s burden ofproving beyond a reasonable doubt that appellant harbored maliceaforethought. This Court 114 rejected a similar argument in People v. Cash (2002) 28 Cal.4th 703, 738-739. ‘Contrary to appellant’s present contention that “[t]he distinction between ‘motive’ and‘intent’ is difficult” (AOB 159), in Cash,this Court reiterated that “motive” and “intent” are not synonymousbecause “motive is the ‘reason a person chooses to commit a crime,’ butit is not equivalentto the ‘mentalstate such as intent’ required to commit the crime. [Citation.]” (Peopie v. Cash, supra, 28 Cal.4th at p. 738; see People v. Hillhouse, supra, 27 Cal.Ath at pp. 503-504 [reiterating that the terms “intent,” “motive,” and “malice” are not synonymous].) Thus, because “motive” and “intent” are not interchangeable, CALJIC No.2.51 could not have confusedthejury regarding the prosecution’s burden of proving intent. Notwithstanding the distinction between “motive” and “intent,” appellantclaims that there existed a “‘potential for conflict and confusionin this case.” (AOB 161.) In making his argument, he relies on People v. Maurer (1995) 32 Cal.App.4th 1121, 1127, a child molest case where giving CALJIC No. 2.51 was prejudicial error under the facts of that case. (AOB 161.) But, this Court has repeatedly rejected the application of Maurer beyond child molest cases, where motive (unlike other crimes) is an element of the case. (See, e.g., People v. Cash, supra, 28 Cal.4th at pp. 738-739; People v. Hillhouse, supra, 27 Cal.4th at p. 504.) This Court has explained: [In Maurer,] the defendant had been convicted of misdemeanorchild annoyance undersection 647.6. The court foundthat, although motive is not generally an elementofa criminal offense, “the offense of section 647.6 is a strange beast,” and it did have a motive as an element-- an unnatural or abnormal sexualinterest. [Citation.] Thus the court found the instructions contradictory, and thereby erroneous. [Citation.] This case is distinguishable. Here, although malice and intent or purpose to steal were elements of the offenses, motive was not. 115 (People v. Hillhouse, supra, 27 Cal.4th at p. 504; see People v. Cash, supra, 28 Cal.4th at p. 738-739 [Maurer distinguishable because, in the caseat bar, “the instructions as a whole did not use the terms ‘motive’ and ‘intent’ interchangeably, and therefore there is no reasonable likelihood the jury understood those terms to be synonymous”].) Thus, here, appellant’s reliance on Maurer is misplaced because appellant was convicted ofmurder, not child molest or annoyance. Because motive is not an element of murder (Peoplev. Hillhouse, supra, 27 Cal.4th at pp. 503-504), there was no conflict between CALJIC No. 2.51 and the elements of the crime. | D. The Instruction Did Not Shift The Burden Of Proof To Imply Appellant Had To Prove Innocence Appellant also claims that CALJIC No. 2.51 violated his right to due process because it impermissibly shifted the burden of proof because the instruction shifted the burdento appellant “to show an alternative motive,”Le., that the instruction impliedthat he had to prove his innocence. (AOB 161-162.) This Court rejected a similar argument in People v. Prieto, supra, 30 Cal.4th at p. 254. There, the defendant argued that the phrase “tend to establish innocence” in CALJIC No.2.51 implied that he hadto establish his innocence. (Ibid.) This Court disagreed, explaining: “CALJIC No. 2.51 [does] not concern the standard of proof... but merely one circumstancein the proofpuzzle-motive.” (People v. Estep (1996) 42 Cal.App.4th 733, 738 ....) “[T]he instruction merely uses innocenceas a direction signal or compass. It does nottell the jurors they must find innocence, nor does it lighten the prosecution’s burden ofproof, upon whichthe jury received full and complete instructions.” (People v. Wade (1995) 39 Cal.App.4th 1487, 1497... .) Thus, no reasonable juror would misconstrue CALJIC No. 2.51 as “a standard of 116 _ proofinstruction apart from the reasonable doubt standard set forth clearly in CALJIC No. 2.90.” (Estep, at p. 739.) Accordingly, the instruction did not violate defendant’s right to due process. (Ibid., brackets andfirst ellipses in original.) Appellant fails to acknowledge this Court’s decisions upholding the propriety of CALJIC No.2.51. In light of this Court’s repeated rejection of claims identical to appellant’s, his challenge to this instruction should be summarily rejected. 117 XI. CALJIC NO. 2.90 IS CONSTITUTIONAL In Argument 11 of his opening brief, appellant contends the standard reasonable doubt instruction usedat his trial, former CALJIC No. 2.90 (1979 rev.), was constitutionally defective. (AOB 163-178.) He raises various complaints regarding the constitutionality ofCALJIC No.2.90 even thoughthis version of the instruction has repeatedly been upheld as constitutional. The jury was instructed in the language of then CALJIC No.2.90, A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whetherhis guilt is satisfactorily shown heis entitled to a verdict of not guilty. This presumption places upon . . . the People the burden of proving him guilty beyond a reasonable doubt. [{]] Reasonable doubtis defined as follows. It is not a mere possible doubt; because everything relating to human affairs, and depending upon moral evidence, is open to some possible or imaginary doubt. [{]] It is that state of the case which after the entire comparison and consideration ofall the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moralcertainty ofthe truth of the charge. (ORT 2713-2714.) First, respondent submits that “this claim has not been preserved for review becausethe defensefailed to object or to request an admonition on the point.” (People v. Barnett (1998) 17 Cal.4th 1044, 1156.) Next, as appellant acknowledges, the United States Supreme Court has upheld the constitutionality of CALJIC No. 2.90. (Victor v. Nebraska (1994) 511 US. 1, 6, affg. People v. Sandoval (1992)4 Cal.4th 155, 185-186.) In addition, this Court consistently has affirmed the validity of the instruction and held that it correctly defines reasonable doubt. (People v. Heard (2003) 31 Cal.4th 946, 979; People v. 118 Lewis (2001) 25 Cal.4th 610, 651-652; People v. Jennings (1991) 53 Cal.3d 334, 385-386; People v. Turner (1994) 8 Cal.4th 137, 203; People v. Webb (1993) 6 Cal.4th 494, 531.) Furthermore, this Court has held that “[nJo additional instructions on reasonable doubt[are] necessary.” (People v. Turner, supra, 8 Cal4th at p. 203.) The plain meaning of [the reasonable doubt] instructions merely informs the jury to reject unreasonable interpretations of the evidence and to give the defendant the benefit of any reasonable doubt. No reasonable juror would have interpreted these instructions to permit a criminal conviction where the evidence shows defendant was “apparently” guilty, yet not guilty beyond a reasonable doubt. By parity of reasoning, we reject defendant's argumentthat the reasonable doubtinstructions “mandated”the jury to draw a particular inference pointing towards guilt. Read in context, the instructions merely require the jury to reject unreasonable interpretations of the evidence, and to accept the reasonable version of the events whichfits the evidence. (People v. Jennings, supra, 53 Cal.3d at p. 386.) Because the “instruction[] correctly described the law, [appellant] ha[d] no rightto restatementofthe reasonable doubt standard expressed in CALJIC No.2.90.” (People v. Ochoa (2001) 26 Cal.4th 398, 445 citing Pen. Code, § 1096a and People v. Wright (1988) 45 Cal.3d 1126, 1134.) Appellant has not submitted any argument that would undermine the numerousprior decisions upholding the constitutionality ofthe instruction. Assuch,his claim should be rejected. 119 XII. THE REASONABLE DOUBT INSTRUCTION AND OTHER RELATED INSTRUCTIONS PROVIDED TO THE JURY DID NOT DILUTE THE PROSECUTION’S BURDEN OF PROOF In Argument 12 of his opening brief, appellant contendsthatthe trial court’s instruction on reasonable doubt (CALJIC No. 2.90), when combined with the circumstantial evidence instructions (CALJIC Nos. 2.01, 2.02,8.83, 8.83.1), underminedthe prosecution’s burdenofproof, and that other standard instructions (CALJIC Nos. 1.00, 2.22, 2.27, 2.51, and 8.20)also “vitiated”the reasonable doubt standard. (AOB 179-191.) This Court has rejected identical contentions in a numberofother cases. Appellant provides no reason for this Court to overrule these other cases. A. The Claim Has Been Waived Attrial, appellant’s trial counsel did not object to CALJIC Nos. 1.00, 2.01, 2.02, 2.22, 2.27, 2.51, 2.90, 8.20, 8.83, or 8.83.1. (8RT 2520, 2522, 2528; ORT 2666.) Because these instructions are correct in law, appellant has forfeited any claim that the instructionseither standing alone or in combination, were erroneous. (People v. Hillhouse, supra, 27 Cal.4th at p. 503 [A party maynot argue on appealthat an instruction correct in law wastoo general or incomplete, and thus needed clarification, without first requesting such clarification attrial.”].) 120 B. CALJIC No. 2.90, When Combined With CALJIC Nos. 2.01, 2.02, 8.83, And 8.83.1, Did Not Undermine The Prosecution’s Burden Of Proof Appellant claims that CALJIC No. 2.90 (1979 rev.) — when combined with the circumstantial evidenceinstructions (CALJIC Nos.2.01% [Sufficiency of Circumstantial Evidence Generally], 2.02 [Sufficiency of Circumstantial Evidence to Prove Specific Intent or Mental State], 8.832% [Sufficiency of 35. Thetrial court instructed the jury pursuant to CALJIC No.2.01, as follows: A finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstancesare not only consistent with the theory that the defendantis guilty ofthe crime, but cannot be reconciled with any other rational conclusion. [{] Further, each fact whichis essential to complete a set ofcircumstancesnecessary to establish the defendant’s guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be foundto have been proved beyond a reasonable doubt, each fact or circumstance upon which such inference necessarily rests must be proved beyond a reasonable doubt. [{] Also, if the circumstantial evidence as to any particular count is susceptible of two reasonable interpretations, one of which points to the defendant’s guilt and the otherto his innocence, you must adopt that interpretation which points to the defendant’s innocence, and reject that interpretation which points to his guilt. [{] If, on the other hand, oneinterpretation ofsuch evidence appearsto you to be reasonable, and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable. (ORT 2697-2699.) 36. The trial court instructed the jury pursuant to CALJIC No.8.83,as follows: You are not permitted to find a special circumstance alleged in this case to betrue, based on circumstantial evidence unles the proved circumstance is not only consistent with the theory that the special circumstance is true, but cannot be reconciled with any otherrational conclusion. [{] Further, each 121 Circumstantial Evidence to Prove the Special Circumstance], 8.83.12/ fact which is essential to complete a set of circumstances necessary to establish the truth of the special circumstance must be proved beyonda reasonable doubt. [§] In other words,before an inference essential to establish a special circumstance may be found to have been proved beyond a reasonable doubt, each fact or circumstance upon whichsuch inference necessarily rests must be proved beyond a reasonable doubt. [{] Also, if the circumstantial evidence is susceptible of two reasonable interpretations, one of which points to the truth of a special circumstance, and the other to its untruth, you must adopt the interpretation which points to its untruth, and reject the interpretation whichpointsto its truth. [§] If, on the other hand, one interpretation of such evidence appears to you to be reasonable andthe other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable. (ORT 2732-2733.) 37. Thetrial court instructed the jury pursuant to CALJIC No.8.83.1, as follows: The specific intent or mental state with which an act is done may be shown by the circumstances surrounding its commission, but you maynotfind a special circumstancealleged in this case to be true unless the proved surrounding circumstances are not only consistent with the theory that the defendant had the required specific intent or mental state, but cannot be reconciled with any other rational conclusion. [{] Also, ifthe evidenceas to any such specific intent or mentalstate is susceptible to two reasonable interpretations, one of which points 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 which points to the absence ofthe specific intent or mental state. [{] If, on the other hand, one interpretation ofthe evidenceas to such specific intent or mental state, appearsto you to be reasonable and the other interpretation to be unreasonable, you mustaccept the reasonable interpretation and reject the unreasonable. (ORT 2733-2735.) 122 [Sufficiency of Circumstantial Evidence to Prove Mental State]), diluted the ‘prosecution’s burden of proof. (AOB 219-220.) His argument fails. First, the terms “moral evidence” and“moralcertainty” m CALJIC No. 2.90 do not dilute the prosecution’s burden of proof. (Victor v. Nebraska, supra, 511 U.S.at p. 6 [observing that the terms “moral evidence” and “moral certainty”in the former version of CALJIC No. 2.90 wereantiquated, but did not suggest a standard of proof lower than due process requires].) With respectto the circumstantial evidence instructions — CALJIC Nos. 2.01, 2.02, 8.83, and 8.83.1 — this Court has “repeatedly rejected defendant’s argument”that they dilute the reasonable doubt standard, explaining: Thoseinstructions, which refer to an interpretation of the evidencethat “appears to you to be reasonable” and are read in conjunction with other instructions, do not dilute the prosecution’s burden of proof beyond a reasonable doubt. [Citations.] (People v. Maury (2003)30 Cal.4th 342, 428 [formerversion of CALJIC No. 2.90 with “moral evidence” and “moral certainty” terms], citing People v. Hughes, supra, 27 Cal.4th at pp. 346-347, People v. Osband(1996) 13 Cal.4th 622, 678-679, and People v. Ray (1996) 13 Cal.4th 313, 347.) Thus, because CALJIC No. 2.90 correctly defined reasonable doubt and the circumstantial evidence instructions did not dilute the prosecution’s burden,the instructions, in combination, were proper. (See People v. Maury, supra, 30 Cal.4th at p. 429 [Becausethe [standard reasonable doubt] instruction, individually, correctly defines reasonable doubt, we reject defendant’s claim that this instruction, when considered together with the other complained-ofinstructions [CALJIC Nos. 2.01, 8.83, and 8.83.1, plus, CALJIC Nos. 2.21.2 (witnesswillfully false), 2.22 (Weighing Conflicting Testimony)], was improper. [Citation.]”].) 123 Appellanthas presented no compelling reason for this Court to overrule ‘the long line of cases upholding the propriety of these instructions. Accordingly, his claim must be rejected. C. Other Standard Instructions — CALJIC Nos. 1.00, 2.22, 2.27, 2.51 And8.20 — Did Not “Vitiate” The Reasonable Doubt Standard Equally unavailing is appellant’s argument that other standard instructions — CALJIC Nos. 1.00, 2.22, 2.27, 2.51 and 8.20 — “vitiated” the reasonable doubt standard. (AOB 183-187.) Similar arguments have been rejected by this Court. (People v. Frye, supra, 18 Cal.4th at p. 958 [mvolving CALJIC Nos. 1.00, 2.51, and 2.52]; accord, People v. Crew (2003) 31 Cal.4th 822, 847-848 [rejecting defendant’s argument that CALJIC Nos. 1.00, 2.01, 2.51 and 2.52, which referredto “guilt or innocence,” relieved the prosecution of its burden of proof}; People v. Nakahara, supra, 30 Cal.4th 705, 714 [following Frye in rejecting defendant’s claim that CALJIC Nos. 1.00 and 2.51 misled the jury].) For example, in Frye, the defendant implicitly referenced CALJIC No. 1.00%andotherjury instructions (CALJIC Nos. 2.51 [Motive] and 2.52 [Flight 38. Thetrial court instructed the jury pursuant to CALJIC No. 1.00, as follows: You must accept and follow the law asI state it to you, whether or not you agree with the law. If anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflicts with my instructions on the law, you must follow my instructions. [{] You must not be influenced bypity for a defendant, or by prejudice against him. You mustnotbe biased against the defendant because he’s been arrested for this offense, charged with a crime or broughtto tnal. [7] None of these circumstances is evidence of guilt, and you mustnot infer or assume from anyorall ofthem, that he’s more likely to be guilty than innocent. You must not be influenced by mere sentiment, conjecture, sympathy, passion, prejudice, public 124 After Crime]) when arguing that such instructions improperly shifted the ‘burden of proof because they referred to “innocence” and thus improperly “placed on him the burdenofestablishing his innocenceofthe charged crimes” rather than have the prosecution prove his guilt beyond a reasonable doubt. (People v. Frye, supra, 18 Cal.4th at p. 958.) This Court rejected the defendant’s argument for the following reasons: (1) the jury had been instructed with “CALJIC No. 2.90 on the presumption of innocence andits corresponding burdenon the prosecution to prove defendant guilty beyond a reasonable doubt”; (2) the trial court emphasizedthe prosecution’s burden of proofthrough other jury instructions; and (3) the prosecutor emphasized the People’s burden of proof during closing arguments. (/bid.) Thus, this Court concluded: Viewing the instructionsas a whole,andin light ofthe recordattrial, we concludeit is not reasonablylikely the jury understood the challenged instructions to mean defendant had the burden of establishing his innocence. [Citation.] (Ibid.) In light of this Court’s decision in Frye, and as this Court recently reaffirmed in Nakahara and Crew, appellant’s contention is unavailing. Thetrial court also instructed the jury on weighing conflicting testimony with CALJIC No.2.22 as follows: You are not boundto decide an issue of fact in accordance with the testimony of a numberof witnesses, which does not convince you,as againstthe testimonyofa lesser numberofwitnesses, which appeals to opinion or public feeling. [{]] Both the people and the defendant have a right to expectthat you will conscientiously consider and weigh the evidence, apply the law, and reach a just verdict, regardless of the consequences. (ORT 2693-2694.) 125 - your mind with more convincing force. You may not disregard the testimonyofthe greater number ofwitnesses merely from caprice, whim or prejudice, or from a desire to favor one side as against the other. You must not decide an issue by the simple process of counting the number ofwitnesses. Thefinaltest is not in the numberofwitnesses, but in the convincing force ofthe evidence. (ORT 2704-2705.) Appellant contends this instruction “replaced the constitutionally-mandated standard of‘proofbeyond a reasonable doubt’ with something that is indistinguishable from the lesser ‘preponderance of the evidence standard’... .” (AOB 186.) He also asserts that CALJIC No. 2.22 lessened the reasonable doubt standard because it “instruct[ed] that any fact necessary to any element of an offense could be proven by testimony that merely appealed to the jurors as having somewhatgreater ‘convincing force.”” (Ibid.) This Court has recently rejected these very contentions and should do so again. (People v. Maury, supra, 30 Cal.4th at p. 429; People v. Nakahara, supra, 30 Cal.4th at p. 714.) In Nakahara, the defendant argued that CALJIC No.2.22 “improperly ‘replaced’ the beyond reasonable doubt standard with a standard akin to a preponderanceofevidence standard.” (People v. Nakahara, supra, 30 Cal.4th at p. 714.) This Court rejected the argument, explaining: “CALJIC No. 2.22 is appropriate and unobjectionable when,as here,it is accompaniedbythe usual instructions on reasonable doubt, the presumption of innocence, and the People’s burden of proof (see CALJIC No. 2.90). [Citations.]” (Jbid.) Similarly, in Maury, this Court rejected the “convincing force” argument appellant asserts on appeal, explaining: [W]hen this instruction is considered with CALJIC Nos. 1.01 and 2.90, “ ‘Tilt is apparent that the jury was instructed to weigh the relative convincing force ofthe evidence (CALJIC No.2.22)only as part ofthe 126 _ process of determining whether the prosecution had metits fundamental burden ofproving defendant’s guilt beyond a reasonable doubt... .”” [Citations.] (People v. Maury, supra, 30 Cal.4th at p. 429, original internal brackets omitted,ellipses in original.) In light ofthis Court’s holdings in Nakahara and Maury, appellant’s claim mustberejected. Appellantfurther argues that CALJIC No. 2.27%" was“flawed”because it suggested “that the defense, as well as the prosecution, had the burden of proving facts.” (AOB 186.) This Court has previously rejected such challenges to CALJIC No. 2.27. (See, e.g., People v. Turner, supra, 50 Cal.3d at p. 697; accord, People v. Montiel (1993) 5 Cal.4th 877, 941.) CALJIC No.2.27 simply advises the jury on how to evaluate a fact proved solely by one witness’s testimony. (People v. Gammage (1992) 2 Cal.4th 693, 700.) Although the instruction doesnot refer to the prosecution’s burden ofproving each element beyond a reasonable doubt, the instruction, when read in context with the other instructions, in no way lessens the prosecution’s burden of proof. (People v. Montiel, supra, 5 Cal.4th at p. 941.) Because this Court has previously rejected arguments identical to the one advanced by appellant, who provides no compelling reasoning for revisiting this settled issue, this Court should summarily reject appellant’s claim. Appellant also claims that the trial court’s instruction on willful, premeditated, and deliberate murder under CALJIC No.8.20 “misled the jury 39. Thetrial court instructed the jury pursuant to CALJIC No. 2.27, as follows: You should give the testimony of a single witness whatever weight you think it deserves. However, testimony by one witness which you believe concerning anyfactis sufficient for the proofofthat fact. [J] You should carefully reviewall the evidence upon which the proof of each fact depends. (ORT 2705.) 127 regarding the prosecution’s burden of proof” becausethe instruction used the ‘word “precluding,” which appellantasserts “could be interpreted to require the defendant to absolutely eliminate the possibility of premeditation, rather than to raise a reasonable doubt about that element. [Citation.]” (AOB 187, citing People v. Williams (1969) 71 Cal.2d 614, 631-632.) This Court recently rejected a similar challenge. (People v. Crew, supra, 31 Cal.4th at p. 848.) In Crew, the defendant claimed that CALJIC No. 8.20, among other instructions, lessened the prosecution’s burden of proof. (People v. Crew, supra, 31 Cal.4th at p. 848.) This Court rejected the argument, explaining: [CALJIC No.8.20] requiresthejury to find the killing was preceded by a clear and deliberate intent to kill that must have been formed upon preexisting reflection and not precluded by conditions that negate deliberation. There is no reasonable likelihood that any jury would misconstrue this instruction as lessening the prosecution’s burden of proofin any respect. (Ibid.) In light of this Court’s holding in Crew, appellant’s claim must be rejected. 128 XI. THE TRIAL COURT PROPERLY INSTRUCTED THE JURY ON FIRST DEGREE MURDER In Argument 13 of his opening brief, appellant contends that the trial court erred byinstructing the jury on first degree premeditated murder and first degree lying-in-wait murder because the information alleged murder in violation of section 187, rather than specifying first degree murder in violation of section 189. (AOB192-199.) Heasserts that he was “charged exclusively with second degree malice murder,”andthusthetrial court lacked jurisdiction to try him forfirst degree murder. (AOB 194.) Assuch,he claimsthat the failure to specifically allege first degree murder in the charging document violated his federal constitutional rights because he was convicted of “an uncharged crime.” (AOB 199.) Appellant’s argument fails because, as he concedes (AOB 194), this Court has repeatedly rejected the argument that malice murder andfirst degree felony murder are separate offenses, and this Court has reaffirmed that an accusatory pleading charging murder need not specify the theory ofmurder upon whichthe prosecution intendsto rely. (See, e.g., People v. Hughes, supra, 27 Cal.4th at pp. 368-370 and cases cited therein.) As this Court explained in Hughes: [W]e reject, as contrary to our case law, the premise underlying defendant’s assertion that felony murder and malice murder are two separate offenses. Accordingly, we also reject defendant’s various claims that because the information charged him only with murder on a malice theory, and thetrial court instructed the jury pursuant to both malice and a felony-murder theory, the general verdict convicting him of first degree murder must be reversed. (Id. at p. 370.) In light ofHughes, appellant’s claimsthatthe trial court lacked jurisdiction to try him for first degree murder (AOB 194) and that he was 129 convicted of an “uncharged crime” in violation of his constitutional rights (AOB 199), mustberejected. While appellant acknowledges this Court has held that a defendant may be convicted of first degree murder where the charging documentalleges murder in violation of section 187, he argues that the cases so holding — including this Court’s Hughes decision — rest on faulty reasoning. (AOB 194- 197.) Specifically, he claims that these cases are premised on People v. Witt (1915) 170 Cal. 104, in which this Court held that a defendant may be convicted of felony murder even thoughthe information charged only murder with malice, but that Witt was “undermined” by People v. Dillon (1983) 34 Cal.3d 441, 472, which construed “‘section 189 as a statutory enactment ofthe first degree felony-murderrule in California.” (AOB 194-197.) However, the defendant in Hughes made an identical argument, which this Court rejected. (People v. Hughes, supra, 27 Cal.4th at p. 369.) In Hughes, this Court explained that, “subsequent to Dillon, supra, 34 Cal.3d 441, wehavereaffirmed the rule of People v. Witt, supra, 170 Cal. 104, that an accusatory pleading charging a defendant with murder need notspecify the | theory of murder upon which the prosecution intends to rely.” (/bid.) Accordingly, appellant’s reassertion ofthis previously-rejected argumentlacks merit. Moreover, as in Hughes, supra, 27 Cal.4th at 369-370, and People v. Diaz (1992) 3 Cal.4th 495, 557, appellant received adequate notice that the prosecution was attempting to provefirst degree murder from thetime ofthe filing ofthe felony complaint, throughout the numerous court proceedings and appearances, and up until the time oftrial. The entirety of the record clearly demonstrates that appellant was well awareofthe capital nature ofhistrial at the time ofjury voir dire. As such, appellant received adequate notice ofthe 130 prosecution’s first degree murder theory. (See People v. Hughes, supra, 27 -Cal.4th at p. 370.) Nordoes appellant’s invocation ofApprendi v. New Jersey (2000) 530 U.S. 466, add anything of substanceto his claim. (See AOB 202-204.) In Apprendi, the court held that the Fourteenth Amendment’s due process clause requires “any fact [other than the fact of a prior conviction] that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to ajury, and proved beyonda reasonable doubt.” (Apprendi v. New Jersey, supra, 530 U.S.at p. 490.) There can be no serious question as to whether that occurred in this case: Underthe law ofthis state, all of the facts that increase the punishment for murder of the first degree -- beyond the otherwise prescribed maximum oflife imprisonmentwith possibility of parole to eitherlife imprisonmentwithoutpossibility ofparole or death -- already have been submitted to ajury (and proved beyond a reasonable doubtto the jury’s unanimous satisfaction) in connection with at least one special circumstance,prior to the commencementof the penalty phase. (People v. Griffin (2004) 33 Cal.4th 536, 595.) Appellant had adequate notice, as well as actual, and timely knowledge ofthe specific facts upon which he was subject to conviction forfirst degree murder based on both a premeditated and deliberation theory anda lying-in-wait theory. Accordingly, appellant’s claim mustfail. 131 XIV. THE TRIAL COURT PROPERLY REFUSED THE DEFENSE REQUEST TO INSTRUCT THE JURY ON VOLUNTARY MANSLAUGHTERBASED ON MENTAL ILLNESS In Argument 14 of his openingbrief, appellant contendsthat the trial court erred when it refused to instruct the jury on the theory of voluntary manslaughter based on evidencethat appellant’s alleged mentalillness negated malice. (AOB 200-205.) The trial court properly rejected the proposed instruction because diminished capacity is no longer a viable defense theory. A. The Relevant Proceedings Onseveral occasions, appellant’s trial counsel requested that the trial court instruct the jury on voluntary manslaughteras to both victims based onthe theory that appellant’s mentalillness prevented him from forming the requisite intent to kill. (ORT 2570-2578, 2612-2630A, 2631-2642, 2659-2663, 2766- 2768.) The trial court denied the requests and insteadinstructedthe jury that mentalillness could negate malice andintentto kill, and reduce the murders to involuntary manslaughter. Every person who unlawfully kills a human being without malice aforethought, and without an intent to kill is guilty of the crime of involuntary manslaughter in violation of .. . Penal Code section 192 subdivision (b). In order to prove such a crime each of the following elements must be proved: Numberone, a humanbeing waskilled, and number two,the killing was unlawful. If you find that the defendant was suffering from a mental illnessat the time of the acts alleged and because of the mental illness did not 132 _ actually have the mental state of malice and did not intendto kill, the defendant is not guilty of murder but is guilty of involuntary manslaughter. (ORT 2725-2726.) B. The Applicable Law Diminished capacity was eliminated by the Legislature in 1981. (See People v. Saille, supra, 54 Cal.3d at pp. 1111-1112.) In Saille, this Court recognized that Penal Code sections 25, 28 and 29, removed a defendant’s ability to use evidence of a mental disorder to negate the capacity to form a requisite mentalstate. (Jbid.) Thus, the law no longer “permits a reduction of what would otherwise be murder to nonstatutory voluntary manslaughter due to voluntary intoxication and/or mental disorder.” (/d. at p. 1107.) Moreover, once thetrier of fact finds a deliberate intention unlawfully to kill, no other mental state need be shownto establish malice aforethought. Whether a defendant acted with a wanton disregard for humanlife or with some antisocial motivation is no longer relevant to the issue of express malice. [Citation.] (Id. at pp. 1113-1114.) Since malice aforethoughtis established once an intentional unlawful killing is shown, the concept of ““diminished capacity voluntary manslaughter,”i.e., nonstatutory manslaughter, is no longer valid. (Id. at p. 1114.) C. Legal Analysis Appellant concedes that diminished capacity is no longer a viable defense to show that mental illness prevented him from having the capacity to kill, yet he argues that evidence that he actually did not form the intent to kill due to his alleged mentalillness is a proper defense. Appellantis correct that 133 a defendant“‘is still free to show that becauseofhis mentalillness or voluntary ‘intoxication, he did not in fact form the intent unlawfully to kill (i.e., did not have malice aforethought).” (People v. Saille, supra, 54 Cal.3d at p. 1117; see Pen. Code, §§ 22, subd. (b), and 28, subd. (a) [evidence of mentalillnessis admissible solely on the issue ofwhether the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, whena specific intent crime is charged].) However, if a jury believed such evidence of mental illness, the only supportable verdict would be involuntary manslaughter, not voluntary manslaughter as appellant contends. (People v. Saille, supra, 54 Cal.3d at pp. 1116-1117.) Here, the trial court properly instructed the jury on involuntary manslaughter. (QRT 2725-2726.) Moreover, appellant did not request an instruction stating that evidence of his mental illness could be considered on the issue of whether he actually had the intent to kill. Rather, he requested an instruction based on the impermissible concept ofdiminished capacity voluntary manslaughter. (QRT 2570-2578, 2612-2625, 2631-2642, 2659-2663, 2766-2768.) In addition, the trial court instructed the jury with CALJIC No. 3.32 (Evidence ofMental Disease-Received for Limited Purpose) which explained that the jury could consider evidence of a mental disease, defect, or disorder “for the purpose of determining whether appellant actually premeditated, deliberated, harbored malice aforethought and/or intent to kill.” (ORT 2724- 2725, emphasis added.) Thus, the jury wasinstructed that it could consider whether appellant actually did not form the intent to kill due to his alleged mentalillness. 134 D. Harmless Error Finally, even assuming thetrial court erred in refusing to give the requested instruction, appellant suffered no prejudiceas a result. (People v. Watson, supra, 46 Cal.2d at p. 836.) There was no credible evidence that appellant suffered from a mentalillness that actually prevented him from acting with malice. Despite Dr. Wells’ testimonythat appellant suffered from the early stages of paranoid schizophrenia, there was absolutely no evidence that appellant was delusional, a key requirementofthe illness. In addition, although the illness is progressive, there were no signs ofthe illness developing in the years, months, or days leading up to the murders. This fact is emphasized by the testimony of appellant’s friends who were with him the day before and in the hours leading up to the murders. Each of those individuals described his demeanor as normal. There was no evidence from the witnesses who saw appellantat or nearthe time ofthe murderthat he seemed not to know what he wasdoing. Further, Dr. Wells testified that even with the alleged mentalillness, it did not preclude appellant from the ability to rationalize, plan, or make choices. Dr. Wells never stated that the paranoid schizophrenia prevented appellant from premeditating or deliberating, or from forming any other required mental state or specific intent. This is reflected by each of the deliberate steps appellant executed leading up to and during hisattack, including his choice to return to shootthevictimsafter the initial shooting when he heard the gurgling noise. In addition, appellant’s detailed alibi presented during three separate interviews with the police belied any claim he did not know what he was doing dueto a mentalillness. Finally, any error is harmless because whenthejury foundthe lying-in-wait special circumstanceallegations true (ORT 2899-2901) it necessarily had to reject any mentalillness finding. 135 XV. THE TRIAL COURT DID NOT COERCE THE DEATH VERDICT In Argument 15 of his openingbrief, appellant contends that the trial court coerced the jury into reaching a death verdict by (1) informingthe jury they were making progress towards unanimity; (2) requiring the jury to answer a questionnaire drafted by the prosecutor; (3) permitting the questionnaire to include questions that probed the jurors’ thought process; (4) discoveringthat the majority ofthe jurors favored death;(5) instructing the jurorsto ignore their philosophical, moral, and religious beliefs, and implicitly threatening to discharge any juror who did not; (6) threatening to question each juror individually and suggesting the process would be embarrassing;(7) examining the foreperson and permitting the prosecutor to examine him;(8) allowing the prosecutor and appellant’s trial counsel to question two additional jurors, including a minority juror; (9) not instructing the three jurors who were questionedto not discussthe process with the otherjurors; (10) discovering the identity of one, and possibly both minority jurors; (11) declaring the two holdout jurors to be “problems” and discharging one of them; and (12) instructing the jury to deliberate as long as necessary to reach a verdict. (AOB 208-209.) Appellant’s claims are without merit. None of these events or comments by the trial court coerced a verdict or violated appellant’s constitutional rights in any manner. An examination of each ofthe alleged errors reveals that the trial court did not coerce the jury’s penalty phase determination, and whether viewed separately or cumulatively, appellant’s claims are without merit. 40. Respondent submits that appellant’s contention that the trial court’s actions listed above in numbers1 though 11 improperly coerced a death verdict on August 15, 1995, is a red-herring. All of those comments and actions, including the questionnaire and the questioning ofjurors, occurred on August 136 A. The Applicable Law Penal Code section 1140 provides: Except as providedby law,the jury cannot be dischargedafter the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless,at the expiration of such time asthe court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree. Thetrial court's decision to declare a deadlock and dismiss the jury is a task delegatedtoits discretion. (People v. Sheldon (1989) 48 Cal.3d 935, 959.) “The court may askjurors to continue deliberating where,in the exercise ofits discretion,it finds a ‘reasonable probability’ of agreement.” (People v. Pride (1992) 3 Cal.4th 195, 265; Pen. Code § 1140.) “[T]he court may direct further deliberations upon its reasonable conclusion that such direction would be perceived ‘as a meansofenabling the jurors to enhance their understanding of the case rather than as mere pressure to reach a verdict on the basis of matters already discussed and considered.’ [Citations.]” (People v. Proctor (1992) 4 Cal.4th 499, 539.) 11 and 14, 1995, and did notresult in any penalty verdict, and therefore, cannot under any scenario be considered coercive. After all of those events, juror Annora Hall was excused on August 14, 1995, without any penalty verdict being reached. At that time, the penalty jury commenced its deliberations “anew from the beginning.” The jury wasspecifically instructed thatit “must, therefore, set aside and disregard deliberations and begin deliberating anew. This means that each remainingoriginal juror mustset aside and disregard the earlier deliberationsas if they had not taken place.” (35RT 5824.) Given the instructions on August 14, 1995, to commence“deliberations anew from the beginning,”the earlier statements bythe trial court, the questionnaire, and the questioning ofjurors on August 11 and 14, 1995, cannot possibly be considered to have, in any manner whatsoever, influenced or coerced the newly-constituted jury in reaching the penalty verdict. In any event, respondent will demonstrate that the trial court did not coerce the jury through anyof its statements, the questionnaire,or inquiry ofthe jurors. 137 “The court must exercise its power, however, without coercion of the jury, so as to avoid displacing the jury’s independent judgment ‘in favor of considerations of compromise and expediency.”” (People v. Breaux (1991) 1 Cal.4th 281, 319, quoting People v. Carter (1968) 68 Cal.2d 810, 817.) “Such a displacement may betheresult of statements by the court constituting undue pressure upon the jury to reach a verdict, whatever its nature, rather than no verdictat all.” (People v. Carter, supra, 68 Cal.2d 810, 817.) The question of coercion is necessarily dependenton the facts and circumstancesofeachcase. (People v. Breaux, supra, | Cal.4th at p. 319.) B. Legal Analysis” 1. The Trial Court’s Statements To The Jury After Learning Of The Possible Deadlock Did Not Coerce The Jury Or Endorse The Majority Position On Tuesday, August 1, 1995, at 2:40 p.m., the jury began their penalty phasedeliberations. (2CT 458.) Thereafter, the jury deliberated for seven court days. On the eighth day of deliberations, Thursday, August 10, 1995, at approximately 3:30 p.m., the jury informedthetrial court that they appeared to be deadlocked.” (34RT 5661.) Thetrial court requested the results ofthe last 41. In appellant’s introduction to Argument15, helists eleven specific waysthatthe trial court allegedly coerced the death verdict. (AOB 208-209) However, within the body ofhis argument, appellantsets forth his contentions underonly eight subheadings. (AOB 210-242.) To ensureclarity for the Court, respondent has set forth arguments under an identical structure with eight subheadings. 42. Throughout Argument 15 of appellant’s opening brief, he contends that the series of events that allegedly coerced the death verdict began after nine days of deliberation. (AOB 206-242.) He is incorrect. The jury began deliberations on Tuesday, August 1, 1995, and deliberated through Friday, August 4, 1995, until breaking at 12:00 p.m., for the weekend. The jury resumed deliberations on Monday, August 7, 1995, and continued until 138 four ballots and the numerical breakdown, but not information about the ‘direction ofthe split. (34RT 5662.) The jury responded with the following note: After considerable deliberation, we appear to be deadlocked. The ballots were broken downas follows: 1) 7-3-2 2) 9-3-1 3) 9-3 4) 10-2 (2CT 467; 34RT 5666.) In the presenceofthe entire jury, the foreman stated that the ballots had been taken during the course of the previous week. Thetrial court responded, “Okay. And it appears that you have made some progress.” (34RT 5667.) Whenthetrial court askedifall of the jurors were still discussing the case, the foremanresponded,“I think we have gotten to the point where — and someof the jurors have alreadysaid that they have gotten to the point where they have talked and talked and there is no more changing their mind.” (34RT 5667- 5668.) Thetrial court agreed that the jurors had been discussing the caseat “sreat length,” andstated that he wouldrelease the jurors and order them back the following morning at 9:00 a.m. (RT 345668.) The court concluded by stating: Andlet me indicate to you in the event that there is — there is any confusion as to, you know whatthe facts are or the — you know, your Thursday, August 10, 1995, whenthey first announced they were deadlocked. This time period constitutes eight court days. On each court day, the jury routinely deliberated for approximately 5 2 hours, commencingat 9:00 a.m., breaking from 12:00 p.m. to 1:30 p.m. for lunch, and concluding at approximately 4:00 p.m., except for Fridays, whenthetrial court dismissed the jurors at noon. (2CT 458-460, 462-463, 465-466, 468.) 139 - duties are, I think they are spelled out in the instructions that you received about mitigation and aggravation. And, as to — andI thinkthe instructions spell out what are mitigating factors and what are aggravating factors. And [sic] give you a chance to kind of get a fresh start in the morming. And[sic] wewill find out before the moming is over whether or not weare getting anywhere. (34RT 5668.) Initially, respondentnotes that appellant has forfeited any objection to the trial court’s remarks by his failure to object at trial. (See People v. Anderson (1990) 52 Cal.3d 453, 468 [“objections to noninstructional statements or commentsbythetrial court mustbe raisedattrial or are waived on appeal”].) Given that appellant failed to object to the trial court’s remarks, appellant has forfeited this claim on appeal. (People v. Anderson, supra, 52 Cal.3d at p. 468.) Assuming appellant has preserved his claim with respect to thetrial court’s remarks, his claim fails nonetheless. Appellant contends that the trial court’s comments after the jury announced it appeared deadlocked constituted “in essence an Allen instruction.”“” (AOB 211.) However, his assertion that the trial court’s comments regarding “progress” and “getting anywhere” conveyed a message to the jury that they should work towards unanimity andthat the court endorsed movement towards unanimity, similar to a prohibited Allen instruction, is without merit. In Allen, the United States Supreme Court approved a charge which encouraged the minority jurors to reexamine their viewsin light of the views 43. Allen v. United States (1893) 157 U.S. 675. 140 expressed by the majority.’ In People v. Gainer (1977) Cal.3d 835, this Court ‘specifically disproved two elements of the typical “Allen charge.” First, this Court found “the discriminatory admonition directed to minority jurors to rethink their position in light of the majority’s views” was improperin that, by counseling minorityjurors to consider the majority view, whateverit mightbe, the instruction encouraged jurors to abandon a focus on the evidenceas the basis oftheir verdict. (Id. at p. 848.) Second, this Court took issue with the direction that the jury “should consider that the case must at some time be decided.” (Id. at p. 845.) This Court also notedthat [a] third commonfeatureofthe Allen-type instructionsis a reference to the expense andinconvenienceof a retrial. While such language was absentfrom the chargeinthis case,it is equally irrelevantto the issue of defendant’s guilt or innocence, and hencesimilarly impermissible. (Id. at p. 852.) Noneofthe vices condemnedby this Court in Gainer are presentin the instant case. First, the trial court’s comments did not contain a discriminatory admonition directed to the minorityjurors to rethink their position in light ofthe views of the majority. Second, the trial court did not inform the jury that the case mustat sometime be decided. And,third,the trial court’s comments did not make referenceto the expense and inconvenience ofa retrial. Here, thetrial 44, As this Court explained: In the Allen opinion this concept is expressed in the following passage: if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which madeno impression upon the mindsofso many men,equally honest, equally intelligent with himself. If, upon the other hand, the majority was for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of ajudgment which was not concurredin by the majority. (People v. Gainer (1977) 19 Cal.3d 835, 845.) 141 court did not direct its comments to the minority jurors, or even mention the split. Rather, the trial court addressed the jury as a whole and acknowledged that they had been discussing the case at great length. Thetrial court’s comment regarding “progress”simply reflected that the jury’s split had become smaller with each successive ballot. The trial court did not qualify the statement in any mannerto suggestthat it approved of the direction in which the votes had shifted. Stating the obvious, simply that the voting had progressed, hardly qualifies as a discriminatory admonition to the minority jurors to rethink their position in light of the views of the majority. Similarly, the trial court’s statement that “we will find out before the morning is over whether or not we are getting anywhere,” did not, in any way, imply that the trial court was endorsing or encouraging “movement” towards unanimity as appellant contends. The comment, viewed within the context of the trial court’s comments, is most reasonably interpreted to mean that the trial court wanted to find out if the jurors were able to continue communicating and deliberating amongst themselvesorif they truly had reached an impasse. In addition, contrary to appellant’s assertion, the trial court’s comments were not rendered more coercive simply because the court polled the jury regarding their numerical split. (AOB 212.) Although appellant may find some support for his view in the federal arena (see Brasfield v. United States (1926) 272 U.S. 448, 449-450), established California law does not support such a view as longas the court’sinquiry is neutral and causes no coercion (see People v. Rodriguez (1986) 42 Cal.3d 730, 776; People v. Carter, supra, 68 Cal.3d at p. 815). As this Court noted in Rodriguez, supra, 42 Cal.3d at p. 776 and footnote 14, the federal rule prohibiting an inquiry into the numerical division of a jury has been held to be a matter of federal criminal procedure and, therefore, not required to be followed bythe states, whereas in California “a 142 neutral inquiry into numerical division, properly used, is an important tool in ‘ascertaining the probability of agreement.” $ oe Such an inquiry is justified in the discharge of the court's “statutory responsibility of assuring that a verdict is rendered ‘unless,at the expiration of suchtime as the court may deem proper,it satisfactorily appears thatthere is no reasonable probability that the jury can agree.’ (Pen. Code, § 1140.)” (People v. Carter, supra, at p. 815.) Thus, the court may inquire into the jury's numerical division when it investigates the possibility of a deadlock, butit cannot ask whichresult is favored. (People v. Proctor, supra, 4 Cal.4th at pp. 538-539.) Here,the trial court’s inquiry into the numerical division wasat all times neutral and was helpful in assessing the probability of agreement. The inquiry into the numerical division of the jury’s votes did not cause any coercion ofthe jury independently, nor when considered with the trial court’s comments. Appellantasserts this case is similar to Jiminez v. Myers (9th Cir.1 993) AO F.3d 976, in which the Ninth Circuit held that the trial judge improperly made a “de facto” Allen charge underthe circumstances, bytelling the jurors he approved ofthe fact they were gradually reaching unanimity, apparently by forcing the holdout defensejurorto capitulate(Jiminez v. Myers, supra, 40 F.3d at p. 980.) Appellant’s reliance on Jiminez is misplaced. (AOB 37.) The court in Jiminez found that the defendant wasentitled to relief after the trial court expressly commented on the “movement”of the jury from a numerical division of seven to five, to a division of eleven to one, and encouraged the “movement” to continue in further deliberations. (/d. at pp. 978-980.) In Jiminez, the court said, “““Due to the fact we have had that type ofmovement, I would request, then, to finish the rest of today and see where weare at that 45. The Ninth Circuit decision in Jiminez is not binding onthis court. (People v. Zapien (1993) 4 Cal.4th 929, 989.) 143 pointin time.’” (Jd. at p. 979.) One hour and 48 minuteslater, the jury reached ‘a verdict. (Ibid.) The Jiminez court foundthat the trial court’s “commentsto the jury strongly implied the jury’s movement from an initial division of seven to five to a division of eleven to one should continue toward unanimity.” (Jd. at 979.) Appellantasserts thetrial court’s comments herein were similar to those which occurred in Jiminez. However, in this case the trial court made no similar statements that it approvedofthe jury’s “movement” towards unanimity with each successive ballot. The commentthat there had been “progress” merely stated the obvious--that the jury had progressively continued deliberating from dayto day, and that they had continued to take ballots. The comments did not suggest in any mannerthat a verdict should be reached. Instead, the trial court merely requested, commensurate with its duty, that the jury continue deliberations upon returning the following morning. Appellant asserts that the trial court’s comments amounted “in essence” to an Allen instruction, yet as this Court stated in Gainer,it mustbe “clear from the record”that an instruction is coercive. Appellant’s attemptto parse together two phrases from an entire dialogue by thetrial court as constituting a coercive instruction is not persuasive. In reviewing a claim that a trial court’s comments coerced a deadlocked jury’s verdict, this Court should not focus on isolated portionsofthetrial court’s statements, but should look at the entire statement in context, and assess the effect of the totality of the trial court’s statements underthe circumstances in which the statements were offered. (See Lowenfield v. Phelps (1988) 484 U.S. 231, 237; People v. Keenan (1988) 46 Cal.3d 478, 534.) Here, rather than exalting compromise and expediency overa juror’s individual verdict, the trial court encouraged jurors to return the next morning to continue deliberations. Based on the totality of the tnal court’s remarks, 144 jurors would have “understood that the court's intent was to provide an opportunity for them to enhance their understanding of the case rather than to coerce them to abandonthe exercise ofindividualjudgment.” (People v. Price (1991) 1 Cal.4th 324, 467; see also People v. Keenan, supra, 46 Cal.3d at pp. 534-536 [no error wheretrial court told jury to take time off from deliberations to spend time with family, “search your conscience . . . and recall your oath,” and “take care ofyou own personalbusiness”}; People v. Rodriguez, supra, 42 Cal.3d at p. 769 [trial court’s remarks urged “properattention to the evidence andits value”]; People v. Cole (1982) 31 Cal.3d 568, 582 [no error wheretrial court told deadlocked jury to go home for the weekend and resume deliberations the following week].) In sum,thetrial court’s commentsplainly did not constitute an improper Allen-type charge or suffer from the defects condemned in Gainer. The court did not direct the jurors to re-examine the issues in consideration of their numerical division or the majority’s views. Nor did the court direct the minority to conform to the majority’s opinions or reach an agreementin the interests of expediency. Finally, because the trial court’s comments did not violate this Court’s prohibitions in Gainer, it also did not violate appellant’s federal constitutional rights. (See Early v. Packer (2002) 537 U.S. 3, 7 [California law offers greater protection to a criminal defendant under a claim of a coerced verdict stemming from an Allen instruction than does the United States Constitution].) 2. The Jury Questionnaire Did Not Coerce The Jury Towards A Verdict Appellant contendsthat a questionnaire drafted by the prosecutor, and presented to the jurors the day after they had indicated they appeared 145 deadlocked, improperly coerced their death verdict. (AOB 214-217.) The “questionnaire requested responses to the following questions: 1. “Do you believe that there is any reasonable likelihood that further deliberations will result in a unanimousverdict?” 2. “Do youfeelthat there is any clarification of the jury instructionsor your duties as jurors [that] would assist you in arriving at a unanimous verdict? 3. “Do you feel that the read back ofthe testimony of any witness or witnesses or portion thereofwould assist you in arriving at a unanimous verdict?” 4. “Have any ofthejurors refused to deliberate? That includesa refusal to be involved in the discussion and reasoning process.” 5. “Has anyjuror basedtheir present position on cases, information, or influence from any outside sources. That is, anything other than the evidence receivedin this courtroom orthejury instructions which I have given you. If so, in what mannerhas this occurred.” 6. “Has any juror expressed the view that the death penalty is inappropriate in this case and based that view on anything other than the evidence andthe law presented in this case? And if so, what?” 7. “Has any juror expressed a view that life without parole is inappropriate in this case and based that view on anything other than the evidence andthe law presented in this case? Andif so, what?” 8. “Is there anything you might suggest that could possibly be done to assist you in achieving a unanimousverdict? If so, what?” (34RT 5687-5688.) Appellant’s trial counsel objected to questions 2 through 8 on the groundsthat they would intimidate the jurors and were similar to an Allen instruction. (34RT 5676.) He also objected to the use of the term 146 ““nanimous” and to the questions that sought to uncover juror misconduct. (RT 5677, 5679.) Prior to handing the jurors the questionnaire, the foreman told thetrial court that the jury had taken a fifth vote and that the result was 10 to 2. (34RT 5685.) Appellant contendsthat the questionnaire “took a hammerto the jury in an effort to force it to reach a unanimousverdict,” and specifically argues that questions 1, 2, 3 and 8 pressured the two holdout jurors to side with the majority to reach a unanimousverdict. (AOB 216.) Appellant is incorrect. Noneofthe questions urged agreementor encouraged the majority to holdfast to its position. The mere use of the word “unanimous”is not tantamountto coercion. Based on CALJIC No.8.88 [Penalty Trial - ConcludingInstruction], the jury already knewthatin order to make a penalty determination,they must unanimously agree. (33RT 5626-5628.) The questionnaire servedto reiterate that duty. None of the questions directed the minority to conform to the opinionsofthe majority or to the interests of expediency, nordid the questions urge agreement,try to influencethejury’s decision,or pressure the jury to reach an agreement. The questionnaire also inquired if the jury needed any assistance and askedifany jurors had considered impermissible factors during deliberations, again reflecting instructions previously read bythetrial court. While the fact that these questions were put forth to the jury in the format of a questionnaire might be unique, the substance ofthe inquiry was permissible--the sameasit would have beenifthe trial court had verbally asked the questions. This Court has foundthat a trial court has “broad latitude” in commentingto a deliberating jury, “so long as it does not effectively control the verdict.” (People v. Rodriguez, supra, 42 Cal.3d at p. 768.) Here, the questionnaire cannot be considered to have “displace[ed] the independent judgmentof the jury “‘in 299 favor of considerations of compromise and expediency.’” (People v. Gainer, 147 supra, 19 Cal.3dat p. 850, quoting People v. Carter, supra, 68 Cal.2dat p. 817.) Appellant also claims that the questionnaire, combined with the tnal court’s commentsthe previous day regarding “progress” and “movement,” were coercive. (RT 216-217.) As set forth above,the trial court’s commentsdid not amount to an improper Allen instruction, thus those comments added no coercive affect to the questionnaire. 3. The Jurors’ Responses To The Questionnaire Did Not Cause The Trial Court To Invade The Sanctity Of The Jury Appellant contends that the jurors’ responses to the questionnaire revealed that the two minority jurors favored a life sentence and revealed the jurors’ thought processes, thereby causingthetrial court to invade the “sanctity ofthe jury,” and affect deliberations. (AOB 217-219.) These contentionsare meritless. First, there is no possibility that the questionnaire affected deliberations, because the jury did not deliberate again after turning in the questionnaires until after one of the jurors was dismissed and the jury was instructed to start deliberations anew. Second,it is not entirely clear that the jurors’ responses revealed that the two minority jurors favored life. Appellant claims that the following juror responses revealed that the two minority jurors favoredlife. Onejuror’s response to question 6 that, “The juror claims that individuals (she/he) knows would havepreferred the opposite of the majority vote at this time.” (Supp. CT III 398) And anotherjuror’s responses to questions 4 and 6, respectively, that, “one juror . . . has stated she can’t even argue her decision of life becausethe rest ofus don’t understand,”and “getting the 2 people opposing to validate there [sic] decission [sic] or give reasoning within the law.” (Supp. CT II 399.) Lastly, ajuror’s response to question8, that the court couldassist 148 the jury by “dismiss[ing] 2 jurors who are not fair to both sides and are ‘unreasonable in thinking-they lack common sense & are more responsive to their feelings instead of the law.” (Supp. CT III 408.) The mostthese responses revealis that one memberofthejury may have favored life. There was no wayforthetrial court to determine ifthe remaining comments about two jurors who werenot“validating” their decisions, and not being “fair to both sides” even referred to the same two people because those responses were from twodifferent jurors. Moreover, the responses did not state, or suggest, that the two minority jurors favoredlife. Lastly, even if the responses are construedto reveal the position of the two minority jurors, the inadvertent discovery of the nature ofthe jury's division is not grounds for mistrial, but simply requires close focus on the court's subsequent conductfrom the perspective ofthe holdouts in orderto determine if it coerced a unanimous vote. (People v. Sheldon, supra, 48 Cal.3d at pp. 959-960; People v. Carter, supra, 68 Cal.2d at p. 816.) Evenif the trial court knew the nature of the jury’s division, it is not “necessarily coercive’ to refuse to discharge the jury after the court learns about an 11-to-1 vote favoring a death sentence.” (People v. Pride, supra, 3 Cal.4th at p. 265.) In People v. Sheldon, supra, 48 Cal.3d 935,the jury in the penalty phase ofa capitaltrial deliberated for two days andsenta noteto the court: “‘We,the jury, are at an 11 to 1 vote. The one voteis for life and will not change. The other 11 hold firm for the death penalty. We feel we will be unable to reach a verdict.’” (Jd. at p. 958.) The court reread some of the instructions andorderedfurther deliberations, and the jury returned a verdictof death two days later. (/d. at pp. 958-959.) Sheldon rejected the defendant's argument that the court's decision to reinstruct the jury, and order further deliberations, essentially coercedthejury into returningthe death verdict even though the court knew the jury’s numerical division. 149 As in Sheldon,the trial court herein did not specifically inquire into or ‘demand to know the jury’s numerical division or which way the jury was leaning. Rather, responsesto the questionnaire may have inadvertently revealed the nature of the numerical division, although respondent submits the division was not definitively revealed. In any event, the trial court’s receipt of this information did not inherently have a coercive affect on the |jury. The individualjurors did not know the contentoftheir fellow jurors’ responses, and therefore had no way ofknowingthatthe trial court may have learned aboutthe nature of the split by piecing together the jurors’ responses. Thetrial court’s subsequent commentsand actions were not rendered coercive simply because the court was awareofthe exact nature ofthe jury's numerical division. (See, e.g., People v. Breaux, supra, 1 Cal.4th at p. 319.) Lastly, contrary to appellant’s assertion, the questions did not improperly revealthejurors’ mental processes by asking questions about the contentofthe deliberations jurors. (AOB 217-218 citing People v. Engleman (2002) 28 Cal.4th 436, 442-443.) Rather, as set forth infra, the questions revealed improper conduct. 4. Questions 5 And 6 Of The Questionnaire Did Not Instruct The Jurors To Ignore Their Own Philosophical, Moral, And Religious Beliefs Appellant contends that questions 5 and 6 of the jury questionnaire “implied that it was improperfor [jurors] to base their vote against the death penalty in any part on their moralandreligious beliefs,” and thus encouraged jurors who basedtheir vote for life on moralorreligious beliefs to abandon their position in favor of the majority. (AOB 219.) The questionsstated: 5. “Has any juror based their present position on cases, information, or influence form any outside sources. Thatis, anything other than the evidence received in this courtroom or 150 the jury instructions which I have given you. If so, in what mannerhasthis occurred.” 6. “Has any juror expressed the view that the death penalty is inappropriate in this case and basedthat view on anything other than the evidence and the law presentedin this case? Andif so, what?” (34RT 5687-5688.) The plain language of these questions in no way impliedthat jurors should abandontheir religious or moralbeliefs. Rather, the questions sought to determineifjurors had improperly basedeither their position or their view that the death penalty was inappropriate in the case on any impermissible outside influences, rather than the permissible bases of the evidence and law. These questionsreflected thetrial court’s previousinstructionsto the jurors that they mustbasetheir decision on the facts and the law,that they mustfollow and accept the law even ifthey did not agree with it, and that they must not conduct any investigation into the facts or the law. (CALJIC Nos.1.00, 1.03, 8.84.1.) Nor did the questions impermissibly inquire into the content of the deliberations. Rather, the questions sought to determine if any jurors had engaged in impermissible conduct. Contrary to appellant’s assertion, nothing in the language of questions 5 or 6 amounted to a threat by the trial court to remove any juror whorelied on their own philosophical, moral, or religious beliefs in determining the penalty verdict. (AOB 221.) 5. The Trial Court Did Not Refer To The Jurors As A “Problem” Or “Threaten” Them Appellant contendsthatafter the jurors returnedtheir questionnaires, the trial court improperly referred to the hungjury as a “problem”and“threatened” to subject the jurors to “embarrassing” individual questioning. (AOB 221-223.) Respondent submits that the trial court did nothing improper. 151 After the jury returned the questionnaires, the prosecutor informedthe ‘trial court that the responses revealed that some jurors may notbe deliberating, and that otherjurors had possibly committed misconduct during voir dire. The prosecutor further explained that it appeared jurors had provided false or misleading statements in voir dire, and he requestedtimeto review the original questionnaires that the jurors completed during voir dire. (34RT 5692.) The trial court stated that the responses “probably” made it clear that further deliberations would not result in a verdict. (34RT 5694.) The prosecutor specifically pointed to the response that there was a juror who “might make a mistake andthat guilt feeling of sentencing somebody to death would be hard to live with even though the aggravating factors are overwhelming,” as demonstrating that the juror lied in voir dire when she respondedthat she could impose the death penalty. (34RT 5695.) He also argued that the following response indicated a juror was refusing to deliberate, “The juror gets very defensive, just shuts you out if she doesn’t like what she hears, she just stated she can’t argue her decision of life because the rest of us don’t understand her decisionis final.” (34RT 5694-5695.) The prosecutor further represented that although one of the responses described a juror who was taking multiple medications and psychotropic drugs, and carried a gun, he did notrecall selecting a juror who hadrevealed those facts. (34RT 5698.) The trial court ultimately agreed to consider any information the prosecutorcould present on the next court day,stating,“. . . the least we can do is give [the jury] the benefit of exploring something that would makethat eight or nine days [spent deliberating] other than wasted.” (34RT 5699.) Appellant’s trial counsel suggested questioning the juror who had madetheallegations about another juror taking medications and psychotropic drugs, and the trial court indicated that it would do so after considering any information the prosecutor provided. (34RT 5700.) 152 Thetrial court then broughtthe jurors into the courtroom andstated: Ladies and gentlemanofthe jury, thank you very much for having answered these questions. The questions, however, instead ofresolving the problem has raised an issue or two, which we needto resolve. So what I’m going to dois release you, order you back Monday morning. Let meindicate to you that we will attempt to resolveit as early as we possibly can. I know that we hadearlier indicated to you that the trial should not have lasted past today’s date. And, of course, the trial didn’t. But your earnest effort back in the jury room had broughtit to today’s date, for which wecollectively thank you. But we dohavethis- - the legal issue to resolve, and we’re going to try and dothat over the weekend and make a decision Monday morning as to how wenext proceed. (34RT 5702.) On Monday,appellant’s trial counsel requested that the court excuse the jury because it was deadlocked. (35RT 5705.) The prosecutor argued that several of the jurors’ responses indicated possible misconduct during voir dire and a refusalto deliberate, and that there may be good cause to removeajuror whohadnot revealed information regarding gun ownership andpossible mental illness during voir dire. (35RT 5706-5713.) The trial court agreed it was appropriate to question some of the jurors to determine if misconduct had occurred. After initially objecting, appellant’s trial counsel agreed thatthejury should be questioned, and he suggestedthe trial court’s objective could be satisfied by questioning the foreman. (35RT 5719-5720.) The trial court indicated that it intended to question the jurors individually in camera. Appellant’strial counsel objected that the procedure should occurin open court. (35RT 5721.) The court assured the parties that the questions would notaccuse 153 the jurors of misconduct and stated that the inquiry would be conducted in camera so the jurors would feel more comfortable than in open court. (35RT 5721-5722.) The trial court then brought the jurors into the courtroom andstated: The questionnaire that we passed around to you Friday,rather than resolving issues, it raised some. So, unfortunately - - so we’re going to have to resolve those before we continue. WhatI intend to do is to discuss some of the issues one at a time with each of the jurors. Let meindicate to you that I am not inferring by this that anybody had done anything wrong.It’s just that we have to make sure that what wedois right, if that makes any sense to you. So I’Il start - - I’ll start with our foreman, Mr. Rodriguez. And we’re going to do that in chambers. And we’re goingto discuss it with you one at a time so as not to embarrass anyone and to make you feel more comfortable. (35RT 5723-5724.) First, appellant does not explain howthetrial court’s comments coerced the death verdict. (AOB 221-223.) He simply alleges that based on thetrial court’s comments, the jurors must have believed that one or all of them were being investigated for misconduct. (AOB 223.) Appellant fails to articulate how thetrial court’s statements alone could have had a coercive affect on the minority jurors. Second,the trial court did not threaten the jury. Rather, the court’s comments clarified that there was a /egal problem, as opposed to a problem with one of the jurors, and the court emphasized that, “I am not inferring by this that anybody had done anything wrong.” (35RT 5723; see cf. People v. Carter, supra, 68 Cal.2d 810, 814 [the court improperly coerced the jury, concentrated its remarks on the lone dissenting juror, and couchedits 154 comments almost in terms of a threat when at 8:45 p.m., the jury advised the Gourt it possibly could reach a verdict within two or three hours, the court refused to remainthere that long, gave the jury anotherhalfhourto deliberate, remarked the case wasnotthat complicated, and said it would “hate to lock you up tonight’J.) In People v. Keenan, supra, 46 Cal.3d 478, this Court rej ected a similar contention where the defendant argued thatthe trial court’s “threat” during penalty phase deliberations to “investigate” the jury’s “problem”(a juror misleading the court during voir dire) before dismissing the jury for the weekend unfairly coerced the dissenting juror. This Court stated “that the court must investigate reports ofjuror misconduct to determine whether causeexists to replace an offendingjuror with a substitute.” (/d. at p. 532.) In this case, the trial court did not threaten the jury. Thetrial court did not focus its comments on the minority jurors, speak derisively to the jury, or threaten to confine the jurors until they reached a verdict. Instead thetrial court reassured the jurors that they had done nothing improper, but that the court needed to “make sure that what we dois right”in resolving the legal issues. While the trial court suspected misconductbased on the jurors’ responsesto the questionnaire,this suspicion wasneverrevealed to thejurors. The statements could not have been perceived by the jury as coercive, andin fact, appellantfails to explain how the comments coerced the verdict. (AOB 221-223.) Here, after learning of possible juror misconduct,thetrial court did not “threaten”the jury, butrather, as set forth in the next argument, commenceda properinquiry into the alleged misconduct. (People v. Keenan, supra, 46 Cal.3d p. 532.) 155 _6. The Trial Court Properly Questioned The Foreman To Determine If Juror Misconduct Had Occurred Appellant contendsthatthejurors’ responsesto the questionnaire did not warrantthetrial court’s subsequentinvestigation into alleged juror misconduct, and that the court’s inquiry could have pressured the minorityjurors to conform to the majority’s position. Appellant further argues that the trial court’s inquiry impermissibly focused on the content of the deliberations. (AOB 223-231.) Appellantis incorrect. The trial court had a duty to investigate after learning ofpossible misconduct, and exercised that duty discretely so as to minimize any possible coercive impact on the minority jurors. Asset forth supra, after learning that jurors might not be deliberating, and that ajuror may have provided misleading information during voir dire, the trial court decided to investigate by individually speaking to jurors in camera with both attorneys present. (35RT 5721-5722.) First, the trial court asked the foreman about several jurors’ responses to various questions in an effort to determine if anyjurors were refusing to deliberate. (35RT 5725-5736.) After the foreman clarified that no one had refused to deliberate (35RT 5727, 5730) or based their position on impermissible influences (35RT 5729, 5732), the court focused on the issue of possible misconduct during voir dire. Thetrial court asked the foreman about a response whichstated, “This particular juror is on multiple medications and psychotropic[sic] drugs. This juror hastold us that she carries a weapon and understands the defendant carrying a weapon and will not under any circumstances change his/her mind regardless of what anyone says.” (35RT 5736-5745) The foreman confirmed that a juror had volunteered that he or she was taking medications, and had carried a gun for work purposes. (35RT 5736-5738.) Before sending the foreman back into the jury room,the trial court advised him notto talk abouthis interactions with the court andthe attorneys. (35RT 5747.) 156 Preliminarily, respondent notesthat although appellant’s trial counsel objected to the proceedings being held in camera, he suggested that the trial court should question the foreman (35RT 5719-5720), and he then actively participated in that inquiry by asking the foreman questions. (35RT 5745- 5746.) Appellant now complains that the prosecutor asked the foreman questions (AOB 227-228), yet appellant’s trial counsel engaged in the same conduct. While this Court has stated that “permitting the attorneys for the parties to question deliberating jurors is fraught with peril and generally should not be permitted . . . the [trial] court may allow counsel to suggest areas of inquiry or specific questionsto be posedby the court.” (People v. Cleveland, supra, 25 Cal.4th at p. 485.) When appellant’s counsel requested that the trial court limit its inquiry to issues regarding a juror’s alleged failure to disclose ownership of a weapon and use ofpsychotropic medications, the court, as well as the attorneys, complied. (35RT 5721.) Contrary to appellant’s contention,the recordis clear thatthe trial court had a duty to conduct an inquiry into the alleged juror misconduct. [O]nce the court is put on notice of the possibility a juror is subject to improperinfluencesit is the court's duty to make whateverinquiry is reasonably necessary to determineifthe juror should be discharged and failure to make this inquiry must be regardedaserror.[Citation.] (People v. Burgener (1986) 41 Cal.3d 505, 520.) Here, the trial court had received clear evidence of possible misconduct during voir dire, as well as an indication that some jurors might not be deliberating. The court had a duty to investigate, and due to the nature of the alleged misconduct, the court was required to ask direct questions about the jurors’ statements during deliberations. Claims ofmisconduct may meritjudicial inquiry even though they may implicate the content of deliberations. For example . . . a juroris 157 _ required to apply the law as instructedby the court, and refusal to do so during deliberations may constitute a ground for discharge ofthe juror. [Citation.] Refusal to deliberate also may subject a juror to discharge [citation] even though the discovery of such misconduct ordinarily exposes facts concerning the deliberations-if, after reasonable inquiry by the court, it appears “as a ‘demonstrablereality’ that the juror is unable or unwilling to deliberate.” [Citiation.] (People v. Engleman, supra, 28 Cal.4th at p. 484.) For example, during a post-verdict inquiry into the validity of a verdict Evidence Codesection 1150, while rendering evidence of the jurors’ mental processes inadmissible, expressly permits, in the context of an inquiry into the validity of a verdict, the introduction of evidence of “statements made... within ... the jury room.” But statements made by jurors during deliberations are admissible under Evidence Codesection 1150 when “the very making of the statement sought to be admitted woulditself constitute misconduct.” [Citation.] (People v. Cleveland (2001) 25 Cal.4th 466, 484.) “In rare circumstances a statement by a juror during deliberations mayitselfbe an act ofmisconduct, in which case evidence of that statement is admissible. [Citation.]” (People v. Hedgecock (1990) 51 Cal.3d 395, 419 [ jurors could be compelled to testify at a post-verdict evidentiary hearing regarding allegations ofjuror misconduct].) In this case, although the inquiry did not occurpost-verdict, the necessity of determiningthe juror’s specific statements during deliberations was similar to an Evidence Codesection 1150 inquiry because the “very making of the statements” constituted the misconduct. The juror’s statements during deliberations that she carried a gun and understood why appellant carried a gun, as well as her revelations about mental illness and medications, constituted the very acts ofmisconduct becausethose statements revealedthat she had not been 158 forthcoming during voir dire. Similar to an investigation into a failure to deliberate, here the trial court had a duty to inquire about the statements. Asking the foremanto confirm the juror’s comments did not reveal the content of the jury’s deliberations aboutthe death verdict, but rather only revealed the juror’s prior misrepresentations during voir dire. Furthermore, the foreman did notrevealifthe juror in question wasin the minority, he merely confirmed that she was the person who had made statements about taking medications, carrying a gun, and understanding appellant’s decision to carry a gun. Appellant also contendsthatthetrial court erred whenit discoveredthe identity of the juror who had madethe statements about gun ownership and medications. (AOB 228.) During the inquiry, the foreman stated that he knew the juror’s identity, but not her last name. When the prosecutor asked the foreman if the juror’s name was Annora Hall, the foreman responded affirmatively. (35RT 5745.) Appellantrelies on People v. Barber (2002) 102 Cal.App.4th 145, 149, as support for his contention that the question improperly revealedthe identity of a minorityjuror. Barberis not analogousto the current case. In Barber the trial court’s questions revealed the identity of a single holdout juror. Here, there were two minorityjurors. In addition,although the foreman respondedaffirmatively to the court’s question that juror Hall was “one of the two” (35RT 5745), this statement did notreveal Hall’s position on the issue of death orlife in prison;it only revealed herstatus as being oneofthe two minorityjurors. Further, appellant again fails to articulate how this event had a coercive affect on the other minorityjuror, especially when the trial court neverrevealedto the jury that it knew of Hall’s status as a minority juror, and the foreman was admonishednotto revealthe substance ofhis examination by the trial court. Appellant also asserts that the trial court’s commentin the presence of the foreman that the jury had been good and worked hard could have been 159 interpreted by the foreman to meanthat the court thought a death verdict was “a very good decision” (AOB 228), and that the foreman “very likely” passed on the court’s comment to the other jurors. First, this contention is purely speculative. Nothing in the record supports appellant’s conclusion that the foreman interpreted thetrial court’s comments in that mannerorthat hetold the otherjurors about the comments. Second, before sending the foreman backinto the jury room, the trial court advised him that while he couldtell the other jurors that the court had questioned him aboutthe questionnaire, he wasnotto discussthe substance ofhis discussions with the court and the attorneys. (35RT 5747.) The recordreveals that the trial court conducted a proper inquiry, as was its duty upon learning ofalleged misconduct, and the inquiry was limited to the narrow issues of possible juror misconduct. (People v. Burgener, supra, 41 Cal.3d at p. 520.) 7. The Trial Court Properly Questioned Two Additional Jurors Appellant contends that the trial court improperly questioned jurors Jackson and Hall regarding Hall’s statements that revealed her possible misconduct during voir dire, and improperly declared that the minority jurors were “problems.” (AOB 229-231.) These contentions lack merit. First, the trial court did not refer to the minorityjurors as “problems”in the presence of any jurors. Rather, in the presence of only the attorneys, the trial court clarified thatjuror Hall appeared to be one of the twojurors that the other jury members were having problems with, not that the court had a problem with them. (35RT 5750-5751.) Second, appellantfails to explain the allegedly coercive affect ofthe court’s inquiry on the minorityjurors other than to speculate that all three questioned jurors were “free”to tell the other jurors that they had been questioned by the prosecutor. (AOB 230.) As was the case 160 with the foreman,thetrial court again properly carried outits duty to investigate ‘possible juror misconduct by questioning jurors Jackson andHall. The inquiry ofjuror Jackson was required because her responsesto the questionnaire set forth juror Hall’s statements which revealed the possible misconduct during voir dire, and clearly, the inquiry of Hall was necessary as she was the individual alleged to have withheld information in voirdire. Uponbeingquestionedbythetrial court, the prosecutor, and appellant’s trial counsel, juror Jackson clarified thatjuror Hall had stated that she was using eight or nine psychotropic medicationsperday, includinglithium.Jackson had personally observed Hall consumethe medications. Jackson also informed the court that Hall had said that she had been in therapy for years. Based on Jackson’s professional experience as a nurse, she characterized juror Hall as exhibiting extreme “highs and lows” during deliberations. In addition, Jackson explained that Hall could notrationalize or explain herself during deliberations, and would literally communicate with the words “blah, blah, blah.” Jackson also confirmed a response in oneof the questionnaires that Hall had said that she had friends who would rather remain incarcerated than die. Lastly, Jackson confirmed that Hall had stated, “Well, I understand why he’s carrying that weapon .. . | carry a weapon myself,” and that Hall stated she wasreadyatall times to use the weapon. (35RT 5752-5756, 5758-5759, 5762-5765.) At the end of the inquiry, the trial court admonished Jackson not to reveal the substance of the examination to the other jurors, and she stated, “Oh, I’m not saying anything.” (35RT 5768.) Plainly, the trial court’s questions were not aimed at discovering the substance or content of the jurors’ deliberations regarding the death penalty, nor was that information revealed. After Jackson returned to the jury room,thetrial court stated that 1t was satisfied that Hall had misstated information on her voir dire questionnaire. (35RT 5769.) Appellant’s trial counsel agreed that juror Hall should be 161 examined. (35RT 5770.) After the inquiry of Hall, appellant’s trial counsel ‘moved for a mistrial on the groundsthat the sanctity of the jurors’ deliberations had been violated by the examination ofthe three jurors. (35RT 5815.) The trial court denied the motion (35RT 5816), and thereafter properly excused juror Hall based on her misrepresentations during voir dire. ($5RT 5820; see respondent’s Argument 16.) Regarding the remaining minority juror,the trial court stated that it did not have “the vaguest idea whothe other one might be, nor do I intend to conduct a... search. . . . [J] in order to find out.” (35RT 5813.) Appellant claims that the remaining minorityjuror wasleft “isolated and intimidated.” (AOB 229.) This argumentis pure speculation. Nothing about the trial court’s dismissal ofjuror Hall indicated to the remaining holdoutjuror that Hall was excused based on herstatus as a minorityjuror. Ifanything, based on the questionnaire which focused on determining improper conduct, and Hall’s statements during deliberations, the remaining minority jurorlikely would have speculated that Hall was excused for misconduct. This case presented one ofthe “rare circumstances [where] a statement by a juror duringdeliberations. . . itselfwas an act ofmisconduct. . .” (People vy. Hedgecock, supra, 51 Cal.3d at p. 419.) Pursuant to its duty, the trial court conducted a proper inquiry into the juror misconduct without unnecessarily delving into the content of the jurors’ deliberations. (People v. Burgener, supra, 41 Cal.3d at p. 520.) Appellant has failed to demonstrate how thetrial court’s inquiry into juror misconduct coerced the death verdict. 8. The Trial Court’s Instruction To The Jury Following The Dismissal OfA Juror Was Not Coercive Appellant contends that the court’s instruction to the jury after dismissing juror Hall was misleading, inadequate, and lead the jury to believe 162 that deliberations could continue indefinitely. (AOB 231-242.) Appellant is ‘incorrect. Thetrial court’s instruction properly informed the newly-constituted jury to start their deliberations anew. Onits face, the instruction’s languageis not coercive, nor can appellant demonstrate a coercive affect on the jury. Thetrial court dismissed juror Hall before the noon recess on Monday, August 14, 1995. Whenthejury returned from lunch,thetrial court instructed the jury as follows: One ofyour number has been excused for legal cause and replaced with an alternate juror. You mustnot consider this fact for any purpose. You mustnot speculate as to why this juror has been replaced. The People and the defendant havea right to a verdict reached only after full participation of the 12 jurors who returned the verdict. This right may be assuredonly ifyou begin yourdeliberations again from the beginning. You should not feel like you are under any pressure to reach a verdict, if one can be reached, with any particular amountoftime. You should take whatever time you need to discuss the case. You must, therefore, set aside and disregard deliberations and begin deliberating anew. This meansthat each remaining original juror must set aside and disregard the earlier deliberationsas if they had not taken place. You should not surrender a conscientiously held belief simply to secure a verdict for either side, but you may change your decision after the newly constituted jury deliberates anew if you feel it appropriate. Thefact that I have spoken with someofthe jurors should have no impact on yourdeliberations and may not be considered in deciding this case. 163 You should not consider the short questionnaire you answered on Friday or the questionsaskedofthe jurors this morning in chambersfor any purpose in your deliberations. You shall now retire and begin anew your deliberations in accordance with theinstructions previously given. Andthejury is specifically instructed they are not to speculate as to the purpose ofthe in camera inquiry and for the exclusion ofa particular juror. This fact should notenter into your deliberations, nor should you speculate as to the reasons why these proceedings occurred. (35RT 5824-5826.) After the instruction, the court stated: Let me indicate to you that as I have earlier indicated, you are required to start your discussions anew. I think the fact remainsis although - because you only have one additionaljuror, that, perhaps, you collectively can bring him up to speed andin the process cover whatit is that you have covered previously in a matter of days and perhaps do it in a shorter period of time. Takeall the time you need. (35RT 5826.) The jury then deliberated until 4:00 p.m and recessedfor the evening. (35RT 5827.) The next day, August 15, 1995, the jury resumed deliberations at 9:00 a.m., and returned the death verdict at 11:36 a.m. (36RT 5828.) Respondent submits that despite appellant’s numerousassertions that it simply was not feasible for this jury to commencedeliberations anew,his claims are without merit. Appellant’s arguments are based entirely on surmise and speculation as to what appellant thinks might have happenedin the jury room when the newly-constituted jury commencedits deliberations “anew.” This, of course, is not the law on which to evaluate appellant’s claim. The law is clear that on appeal it is presumed that jurors follow the court’s instructions and directions. (See People v. Maury, supra, 30 Cal.4th at 164 pp. 439-440.) The presumption that the jurors in this case understood and followedthetrial court’s instructions to commencedeliberations “anew”is not rebutted by anything except appellant’s speculation. Appellant presents not one record-based reason to believe the jurors did not follow the trial court’s instruction to (1) commencedeliberations anew,(2) disregard the fact that the court spoke with someofthe jurors, (3) not consider the questionnaire, and (4) notspeculate as to the reason for the exclusion ofthe excusedjuror. Moreover, because the jurors are presumed to have followed the court’s instruction to begin deliberations anew, noneofthe trial court’s prior commentsor actions, or the questionnaire, could have had a coercive affect on the new jury. Appellant’s claims must, therefore, be rejected. First, appellant contendsthat the discharge ofjuror Hall andthe court’s instructionsthereafter put additional pressure on the remaining minority juror to capitulate. (AOB 232-235.) However, the minorityjuror did not know why juror Hall was excused. The court never communicated to the foreman or Jackson that Hall was excused based on her minority position. And, even assumingthe foremanorJackson revealedthe substanceofthe court’sinquiry to the otherjurors, from the perspective ofthe remaining holdout, there was no reason to think that juror Hall was removed because of her holdout status. Rather, it would have been apparentfrom Hall’s comments during deliberations andthe court’s inquiry into possible misconduct in questions 5 through 8 ofthe questionnaire that if anything, Hall was removed due to her misconduct. Further, there was no pressure because the holdout would likely conclude that if Hall’s minority status had been the reason for her removal, the trial court would have removedthe remaining holdout as well. Second, appellant claimsthat the trial court’s instruction pressured the holdoutjuror to surrenderto the majority by stating that the jurors “may change yourdecision after the newly constituted jury deliberates anew if you feel it 165 appropriate.” (AOB 235.) However,the instruction clearly told the jurors not to surrender their conscientiously held beliefs simply to secure a verdict for either side. The presumptionis that the remaining minorityjuror followedthis instruction. (See People v. Maury, supra, 30 Cal.4th at pp. 439-440.) Appellant also asserts that the trial court’s failure to include, in the supplemental instruction,the portion of CALJIC No. 17.40instructing jurors that they must “not decide any question in a particular way because a majority of the jurors, or any of them, favor that decision,” may have hadthe effect of causing jurors to “think their responsibilities had changed and that now the minority could be influencedby the majority.” (AOB 235.) Nothingin thetrial court’s supplemental instruction informed the jurors that the court’s prior instructions had been supercededbythe supplementalinstruction. In any event, the supplemental instruction cannotbe reasonably construed as encouraging the minority juror to be influenced by the views of majority jurors on the basis of the number of jurors favoring one penalty over another, as the supplemental instruction directed the jurors that their verdicts must not be the result ofmere acquiescence for the purpose of securing a verdict. Third, appellant contendsthattrial court’s commentto the jury to “take all the time you need” added more pressure to the minority jurorto relent in light of the amountoftime the jury had already spend deliberating. To the contrary, the court’s admonition assured the minority juror that there was no pressure to reach a verdict within any set time frame. Appellant’s assertion that the court’s commentconstituted a “threat of indefinite confinement” that the majority could use against the minorityjuror,is not a reasonable interpretation ofthe court’s comments. (AOB 236.) The court wasnotsetting a time frame in whichthejurors must deliberate. (AOB 237, fn. 58.) Rather, the trial court left that decision to the jury’s discretion. 166 Fourth, appellant claims that thetrial court’s instruction, coupled with ‘the prior standardinstructionssetting forth the jurors’ duties to determine which penalty was appropriate, improperly encouraged the jurors to reach a unanimous verdict. (AOB 237.) Appellant has not shownthat the standard instructions were impermissibly coercive. Further, the court’s instruction after juror Hall was excused did not remotely convey improperpressure from thetrial court to reach a unanimousverdict. In addition, contrary to appellant’s assertion (AOB 238), the prior actions and comments of the trial court are not properly consideredhere,as the jury was explicitly told to disregard those comments and events. Fifth, appellant complainsthatthetrial court’s commentthat the original juror’s might“collectively . . . bring [the new juror] up to speed and in the process cover whatit is that you have covered previously in a matter of days and perhaps doit in a shorter period of time” was improper. However, the comment did not imply that the new jury should continue with deliberations wherethe previous jury hadleft off; the jurors knew they must begin anew as a whole. (ABO 239.) Nor, did the commentimpair appellant’s right to the independentjudgment ofeach juror because the court instructed the jurors that the parties had a right to a verdict reachedonly after full participation of each ofthe 12 jurors. (AOB 239.) Again,thejurors are presumedto have followed the court’s instruction. (See People v. Maury, supra, 30 Cal.4th at pp. 439- 440.) Sixth, appellant claims that the same statement by the trial court regarding bringing the new juror upto speed failed to inform the jury that the jurors were to consider each other’s views. (AOB 240.) This claim fails for the same treason set forth above because the court expressly told the jurorsthatall 12 of the juror’s must fully participate. 167 Lastly, appellant contendsthatthe trial court should have told the jury that they had the choice not to reach a verdict. (AOB 240.) Appellantis incorrect. The jury did not needto be told that they could remain deadlocked as the law “‘does not require a broadhint to a jurorthat he can hang thejury if he cannot have his way.” (People v. Dixon (1979) 24 Cal.3d 43, 52, quoting Andres v. United States (1948) 333 U.S. 740, 766.) C. Conclusion Appellant’s claims of coercion fail, whether viewed cumulatively or individually. Appellant’s jury deliberated anew following the initial announcement of deadlock and the subsequent constitution of a new jury. Underthe totality of the circumstances presentedin the instant case, the jury’s determination ofdeath as the appropriate penalty for appellant was not coerced by the trial court. (People v. Proctor, supra, 4 Cal.4th at p. 538; People v. Pride, supra, 3 Cal.4th at pp. 265-266; People v. Price, supra, 1 Cal.4th at p. 467; People v. Rodriguez, supra, 42 Cal.3d at pp. 774-775.) 168 XVI. THE TRIAL COURT PROPERLY DISCHARGED JUROR HALL BECAUSE SHE MISREPRESENTED AND CONCEALED MATERIAL INFORMATION DURING VOIR DIRE In Argument 16 of his opening brief, appellant contendsthat the trial court erroneously discharged juror AnnoraHall after it was revealed that she had misrepresented information about her backgroundduring voir dire. (AOB 243-258.) Appellant asserts that Hall’s misrepresentations about her gun ownership, mental illness, and arrested friends did not constitute material information that showedbias against the prosecution. Appellant’s arguments lack merit and should berejected. A. The Relevant Proceedings Asset forth in respondent’s Argument XV, the jurors’ responses to the questionnaire following their purported deadlock caused the prosecutor to suspectthatjuror AnnoraHall had misrepresented information during voir dire about her gun ownership, mentalillness, and arrested friends. When questioned by thetrial court, Hall confirmed that despite her responsesto the contrary (1) she owned a gun and hadcarried it for personal protection; (2) she suffered from a mentalillness, namely bipolar disorder, for the past 19 years for which she took numerous medications including lithium; and (3) one of her acquaintances had been incarcerated forall ofhis life. Hall did not reveal any ofthis information during voir dire. The trial court discharged Hall from the jury for makingintentional misrepresentations regardingall three issues on her jury questionnaire which precluded the prosecutor from asking her questions aboutthese issues duringvoir dire. Thetrial court further ruled that, based on the prosecutor’s representations to the court, Hall’s failure to disclose her mental health disorder prevented the prosecutor from likely exercising a 169 peremptory challenge basedonthatdisability. Lastly, the court found that Hall “was not impartial. (35RT 5820-5822.) B. Waiver Appellant contends that the trial court’s erroneous discharge of juror Hall violated his federal and state constitutional rights to trial by jury and a unanimousreliable verdict, his Sixth and Fourteenth Amendmentrights, and his right to due process. (AOB 244-245.) However, appellant did nat raise these constitutional objectionsat trial. Therefore, the claims are waived because appellant failed to object on these groundsin thetrial court. (See People v. Sanders, supra, 11 Cal.4th at p. 510, fn. 3.) C. The Applicable Law Penal Code section 1089 authorizes trial court to discharge a juror [i]f at any time, whether before or after the final submission ofthe case to the jury, a juror dies or becomesill, or upon other good cause shown to the court is found to be unable to perform his duty, or if a juror requests a discharge and good cause appears therefor, the court may order him to be discharged and draw the nameofan alternate, whoshall then take his place in the jury box, andbe subject to the same rules and regulations as though he hadbeen selected as oneofthe originaljurors. A trial court’s determination ofgood cause undersection 1089 is subject to the deferential abuse-of-discretion standard. Therefore, this Court must uphold the trial court’s decision to discharge a juror if there is substantial evidence supporting it. (See People v. Marshall, supra, 13 Cal.4th at p. 843.) Ajuror’s duty is to weigh the evidence andcredibility ofwitnesses with impartiality and to reach a fair and unbiased verdict. (People v. Compton (1971) 6 Cal.3d 55, 59-60.) It is well settled that a sitting jurors’ actualbias, 170 which would have supported a challenge for cause, renders him or her “unable ‘to perform his [or her] duty,” and thus subject to discharge and substitution under Penal Code section 1089. (People v. Keenan, supra, 46 Cal.3d at p. 532.) In People v. Price, supra, 1 Cal.4th at p. 400, this Court explained the law governing removalofa juror who has withheld information during the selection process: Whenthetrial court discovers duringtrial that a juror misrepresented or concealed material information on voir dire tending to show bias, the trial court may dischargethejurorif, after examination ofthe juror, the record discloses reasonable grounds for inferring bias as a “demonstrablereality,” even though the juror continues to deny bias. The juror in Price failed to disclose that he had a criminal history, that a prosecution witness had previously served ashis parole officer, and that he hadpreviously filed a lawsuit against the judge presiding in the trial. (/d. at p. 399.) After explaining whyhe hadnotrelayed this information during jury selection, the juror insisted he could befair and impartial to both sides. This Court foundthe concealed information material and heldthe failure to disclose provided sufficient grounds to conclude the juror was biased, despite his insistence he could be fair. (Id. at pp. 400-401.) D. Legal Analysis First, appellant contends that Hall’s allegedly inadvertent failure to disclose that she owned a gun wasnot a material misrepresentation that tended to showbias against the prosecution. (AOB 247-250.) The questionnaire that Hall filled out during jury selection asked the following questions regarding guns and firearms: 15. Do you own a gun or have anyspecial knowledgeortraining with respect to guns? 171 _ a) Ifso, what type? b) Have you ever used a weapon for any purpose? If so, what? 34. Do you own,or have you ever ownedanytype offirearm? If yes, what types? (Supp. II CT 3324, 3330.) Thus, Hall had two opportunities to disclose her ownership of the gun. First, in response to question 15 , and again in response to question 34, yet she answered“no”to each question. (Jbid.) The fact that Hall claimed she “simply didn’t think about the gun” because it was in a closet in her house, does not render the withheld information immaterial. In addition, Hall also failed to truthfully answer question 15, subsection (b), which asked if she had ever used a weapon,and if so, for what purpose. By her own admission in the jury room andto the court, Hall had used the gun for protection. This is exactly the same purpose for which appellant claimed he carried the murder weapon on the day of the killings. Appellantclaims that because the prosecutordid not question any ofthe other jurors about their use or ownership of guns, he likely would not have questioned Hall. First, this argumentis speculative. Second, fourout offive ofthe jurors that appellant claims owned guns, did not, in fact, personally own gunsatthe timeofthe penalty phase. (Supp. Il CT 2960 [juror Dobard- did not own a gun atthe timeoftrial, her husband owned a gun]; 3492, 3498 [juror Almagro-did not own a gunatthe timeoftrial, her ex-husband owned a gun]; 3940 [juror Crow-did not own a gun at the time oftrial, used to own rifle, pistol, and shotgun]; 4002 [juror Hetch-did not own a gunatthetime oftrial, used to own a rifle].) In contrast, Hall owned a gunatthe time ofthe penalty phase, yet affirmatively represented that she did not. Third, and most importantly, in contrast to Hall, none of the other jurors that the prosecutor 172 accepted indicated they used a gun for the purpose of personal protection. (Supp. II CT 2651 [juror Bays-used a gun in Army training and for target practice years ago]; 2932 [juror Reyes-used a gun for military training only]; 3296[juror Webb-used a gun for military duty]; 4024 [juror Dimmick-used a gun for military duty from 1961-1965]; 4108 [juror Ballard-used a gun during army nurse training in World WarII].) None of these jurors used gunsin any mannerthat was even remotely similar to the reason that appellant claimed he was armed on thenightofthe murders--for personal protection. However, Hall had used her gun for personal protection. Asthe prosecutorstated, he “would have wanted to know why. .. she carries a gun.” (35RT 5807.) Further, while juror Hallinsisted that her failure to disclose the evidence of her gun ownership was inadvertent, this did not alter the fact that such information was material, especially where appellant presented evidence about his practice of carrying a weaponfor protection. Hall exposed her bias on this issue when shetold the other jurors that she understood why appellant carried a weapon for personal protection. Yet, as the prosecutor stated, he “had no opportunity to... . use a peremptory challenge on [juror Hall] because shelied to me.” (35RT 5813.) In this context, information that Hall ownedandcarried a gun for protection was material to whether she could impartially weigh the evidence and credibility of witnesses and reach a fair and unbiased verdict. (People v. Thomas (1990) 218 Cal.App.3d 1477, 1484.) Second, appellant also argues that Hall’s failure to disclose her bipolar disorder wasnot a material misrepresentation that tended to show bias against the prosecution. (AOB 250-254.) Question 16 ofthe jury questionnaire asked: “Do you have any specific health problems or disabilities? If yes, briefly describe. If yes, wouldthis health problem ordisability makeit difficult for you to serve as a jurorin this particular case?” (Supp. II CT 3324.) Hall responded that she had “digestive problems.” (/bid.) Appellant contends that Hall’s 173 failure to disclose her bipolar disorder was caused by the wording of the questionnaire because “a fair inference”is that she thoughtthe question referred only to physical health problems. However, on its face, the question is not restricted to physical health, but refers to health in general. Furthermore, in Hall’s case, her mental health disorder clearly had a physical affect on her health as evidenced by the fact that she had been taking medication for the disorder for 19 years. This wasnota situation where she simply felt depressed or despondent. She suffered from a mental health disorder whichaltered her physiological and chemical balance. In addition, contrary to appellant’s assertion that Hall disclosed that she had seen a mental health professional in her response to question 42 [If you ever had any personal experience with psychiatrists, psychologists, or counselors,did this experience impress you: Favorably, Unfavorably, Does not apply], andthat it was therefore the prosecutor’s responsibility to question her on that issue, neither the question nor Hall’s response of“favorably” (Supp.II CT 3332) indicates that she received treatment such that the prosecutor would be alerted to question her about the issue. The question merely asked if she had any “experience,”not if she had received treatment. Appellant again argues that the misrepresentation was not intentional. However, the fact that the disclosure may have been unintentional does mean that the withheld information was not material. Respondent submits that within the context of this case, information that Hall suffered from, and took medications for, a mental illness for 19 years was material. During the penalty phaseretrial, appellant’s primary argument wasthat the killings were triggered by his emotional and mental health problems, including depression,isolation, andstress caused byhis job loss, unstable financial situation, and pressure to help his grandmotherfinancially. In this context, information that Hall had suffered for nearly 20 years from a mentalillness for which she took multiple 174 medications, includinglithium, was material to whether she could impartially weigh the evidence and credibility of witnesses and reach a fair and unbiased verdict. (People v. Thomas, supra, 218 Cal.App.3d at p. 1484.) Finally, appellant contendsthat Hall did not misrepresent information whenshe respondedto question 23 ofthe questionnaire: “Haveyou,or anyone close to you,ever beenarrested for or accused of a crime?” (Supp. II CT 3326.) Hall wrote “friend - outstanding warrants and possession ofstolen property.” (Ibid.) In fact, as revealed by her statements to other jurors and her admission to the trial court, Hall’s “old babysitter’s son” was incarcerated and had been institutionalized all his life. During deliberations, Hall’s bias was revealed whenshetold herfellow jurors that she had a friend who would prefer to be imprisoned for life rather than receive the death penalty. Thus, within the context of this case wherethe jurors were deciding between the punishments of life in prison or the death penalty, Hall’s misrepresentation was material to whethershe could impartially weigh the evidence andcredibility of witnesses and reach a fair and unbiased verdict. (People v. Thomas, supra, 218 Cal.App.3d at p. 1484.) Even though Hall eventually disclosed all of the information regarding her gun ownership, mentalillness, and arrested friend when questioned bythe trial court, the court wasjustified in concluding that her concealmentofit during voir dire demonstratedactualbias, particularly in light ofher statements to otherjurors which expressly revealed her bias. Thetrial court did not abuse its discretion in discharging Hall andseating an alternate in her place. 175 XVII. INTERCASE PROPORTIONALITY REVIEW OF DEATH SENTENCES IS NOT REQUIRED BY THE FEDERAL CONSTITUTION In Argument 17 of his opening brief, appellant contends that the California death penalty statutory schemeviolates the Eighth and Fourteenth Amendments of the United States Constitution because it does not provide intercase proportionality review of sentences. (AOB 259-263.) Both the United States Supreme Court (Pulley v. Harris (1984) 465 U.S. 37, 50-51) and this Court (People v. Prieto, supra, 30 Cal.4th at p. 276; People v. Snow, supra, 30 Cal.4th at pp. 126-127) have rejected the claim that the United States Constitution requires intercase proportionality review of death sentences. Appellant concedes that this Court has repeatedly held that intercase proportionality review is not constitutionally required. (AOB 260.) Having offered no compelling reason for reconsideration, appellant’s claim fails. Appellant further contends that the lack of intercase proportionality review violates the Equal Protection Clause of the United States Constitution becausecertain procedures, such as disparate sentence review utilizedin non- capital cases, do not apply to death cases. (AOB 263-267.) This Court has explicitly rejected such arguments. (People v. Prieto, supra, 30 Cal.4th atp. 276; People v. Cox (1991) 53 Cal.3d 618, 691; People v. Allen (1986) 42 Cal.3d 1222, 1286-1287.) Appellant concedesthat this Court has rejected the claim that failure to provide intercase proportionality review violates the constitutional guarantee of equal protection. (AOB 263-264.) Appellant has failed to provide this Court with any compelling reason to reconsider its prior rulings. Accordingly, his claim should berejected. 176 XVI. CALIFORNIA’S DEATH PENALTY STATUTE AND INSTRUCTIONS ARE NOT UNCONSTITUTIONAL In Argument 18 of his opening brief, appellant “raises a number of... constitutional objectionsto the death penalty statute identicalto those [the Court has]previously rejected.” (People v. Welch (1999) 20 Cal.4th 701, 771; AOB 268-285.) To the extent appellant alleges statutory errors not objected to at trial, the issue is waived on appeal. (People v. Saunders (1993) 5 Cal.4th 580, 589.) Similarly, any complaints relating to instructions that were not erroneous but only incomplete are waived unless appellant requested clarifying or amplifying language. (People v. Lewis, supra, 25 Cal.4th at p. 666.) Respondentwill not “rehearse or revisit” the numerous claims previously and regularly rejected by this Court. (People v. Ayala (2000) 24 Cal.4th 243, 290 [internal quotation marks excluded].) Respondentsimply identifies appellant’s complaint and notes the Court’s applicable opinions. A. Absence Of Reasonable Doubt Standard Is Not Unconstitutional Appellant claims that California’s death penalty statute and instructions are unconstitutional because the jury is not required to find, beyond a reasonable doubt, (1) the existence of aggravating factors (except for special circumstances under Penal Codesection 190.2 and other crimes under Penal Code section 190.3, subdivision (b)), (2) that aggravating factors outweigh mitigating factors, or (3) that death is the appropriate penalty. (AOB 269-278.) This Court has repeatedly held that California law does notrequire ajury to find the existence ofaforementioned factors beyond a reasonable doubt. (People v. Jones (2003) 30 Cal.4th 1084, 1126-1127; People v. Martinez (2003) 31 Cal.4th 673, 700; People v. Cox (2003) 30 Cal.4th 916, 971; People v. Box (2000) 23 Cal.4th 1153, 1217.) Contrary to appellant’s assertion, the United 177 States Supreme Court decisions in Jones v. United States (1999) 526 U.S. 227, Apprendi, supra, 530 U.S. 466, and Ring v. Arizona (2002) 536 U.S. 584, do not alter this conclusion. (People v. Snow, supra, 30 Cal.4th at p. 126, fn. 32 [finding Apprendi and Ring inapplicable]; accord, People v. Martinez, supra, 31 Cal.4th at pp. 700-701; People v. Cox, supra, 30 Cal.4th at pp. 971-972; Nakahara, supra, 30 Cal.4th at pp. 721-722; People v. Smith (2003) 30 Cal.4th 581, 642; People v. Prieto, supra, 30 Cal4th at p. 272 [“Ring doesnot apply to California’s penalty phase proceedings”].) Moreover, the United States Supreme Court decision in Blakely v. Washington (2004) 542 U.S.__[124 S.Ct. 2531, 159 L.Ed.2d 403], did not undermine any of this Court’s earlier holdings on this issue because Blakely “simply relied on Apprendiand Ring . ...” (People v. Morrison (2004) 34 Cal.4th 698.) B. No Burden Of Persuasion In The Penalty Phase Appellant also claims that California’s death penalty statute is unconstitutional because “the penalty phase instructions failed to assign any burden of persuasion regarding the ultimate penalty phase determination the jury had to make.” (AOB 278; 278-280.) Appellant acknowledgesthat this Court has held otherwise, but asks the Court to reconsiderits prior holdings. (AOB 278; citing People v. Hayes (1990) 52 Cal.3d 557, 643.) Appellant provides no compelling reason for doing so. This Court recently reaffirmedthe holding ofPeople v. Hayes, supra, 52 Cal.3d at p. 643, andreiterated that there was no burden of proof and no burden of persuasion in the penalty phase. (People v. Lenhart (2004) 32 Cal.4th 1107, 1135-1136; see also People v. Michaels (2002) 28 Cal.4th 486, 541; People v. Jones, supra, 30 Cal.4th at p. 1127.) 178 C. Absence Of Unanimity Requirement Regarding Aggravating Factors Is Not Unconstitutional Appellant contends that the jury must unanimously agree on which aggravating factors warrant death. (AOB 281-285.) This Court has held otherwise. (People v. Prieto, supra, 30 Cal.4th at p. 275; People v. Kipp (1998) 19 Cal.4th 353, 381.) Nor do Ring, supra, 536 U.S. 584, Apprendi, supra, 530 U.S. 466, or Blakely, supra, 124 S.Ct. 2531, alter this conclusion. (People v. Morrison, supra, 34 Cal.4th at p. 731; People v. Prieto, supra, 30 Cal.4th at p. 275.) 179 XIX. THE TRIAL COURT PROPERLY INSTRUCTED THE JURY WITH CALJIC NO.8.88 In Argument 19 of his openingbrief, appellant contends that CALJIC No.8.88,the standard penalty phase concluding instruction given in this case, was constitutionally flawed. (AOB 286-298.) Appellant raises several 46. Thetrial court instructed the jury with CALJIC No.8.88,as follows: It is now your duty to determine which of the two penalties, death or confinementin the state prison for life without the possibility of parole, shall be imposed on the defendant. [{] After having heard all of the evidence, and after having heard and considered the arguments ofcounsel, you shall consider, take into account and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed. [f] An aggravating factor is any fact, condition or event attending the commission of a crime whichincreasesits guilt or enormity, or adds to its injurious consequences whichis above and beyondthe elements of the crimeitself. A mitigating circumstanceis any fact, condition or event which as such, does not constitute a justification or excuse for the crime in question, but may be considered as an extenuating circumstance in determining the appropriateness of the death penalty. [§] The weighing of aggravating and mitigating circumstances does not mean a mere mechanical counting of factors on each side of an imaginary scale,or the arbitrary assignment ofweights to any of them. You are free to assign whatever moral or sympathetic value you deem appropriate to each andall ofthe various factors you are permitted to consider. In weighing the various circumstances you determine underthe relevant evidence which penalty is justified and appropriate by consideringthetotality of aggravating circumstances with the totality of the mitigating circumstances. [J] To return a judgmentof death, each of you must be persuaded that the aggravating circumstances are so substantial in comparison with the mitigating circumstancesthat it warrants death instead oflife without parole. [{] You shall now retire and select one of your numberto act as foreperson, whowill preside over your deliberations. In order to make a determination as to the penalty,all twelve jurors must agree. ("1 180 complaints about this instruction, each of which have been presented to and ‘fejected by this Court in previous cases. Among his complaints are that the instruction failed: (1) to quantify the words “so substantial” so as to provide guidanceto the jurors, resulting in a standard that was unconstitutionally vague (AOB 287-290); (2) “to inform the jurors that the central inquiry” was the appropriatenessofthe death penalty becauseit used the phrase “warrants death instead oflife without parole” (AOB 290-292); (3) to instructthe jurors that they were required to return a sentenceoflife without the possibility ofparole if the mitigating factors outweighed the aggravating factors, and thereby improperly reduced the prosecutor’s burden ofproof (AOB 293-297); and (4) to instructthe jury that neither party “bears the burden to persuade” the jury regarding the appropriateness of the death penalty (AOB 297-298.) These challenges to CALJIC 8.88 have beenrejected by this Court: (1) The term “so substantial” is not unconstitutionally vague. (People v. Carter (2003) 30 Cal.4th 1166, 1226; see People v. Millwee (1998) 19 Cal.4th 96, 162-163 [We have repeatedly rejected claims that [CALJIC No. 8.88] is inadequate or misleading in describing when the balance of factors warrants the more serious penalty.”].) (2) The use of the term “warrants” in CALJIC No. 8.88 is not “too broad”or permissive,” andit does not misleada “jury into believing that it may impose death even when notthe ‘appropriate’ penalty.” (People v. Jackson, supra, 13 Cal.4th at p. 1243; see People v. Boyette, supra, 29 Cal.4th at p. 465.) Contrary to appellant’s suggestion, [CALJIC No.8.88] as a whole conveyed that the weighing process 1S “merely a metaphor for the juror’s personal determination that death is Any verdict you reach must be dated and signed by your foreperson on a form that will be provided and then you shall return with it to this courtroom. (33RT 5626-5628.) 181 _the appropriate penalty under all of the circumstances.” [Citation.] “There is no reasonable likelihoodthat the jury would have thoughtit could return a verdict of death if it did not believe that penalty was appropriate.” [Citation.] (People v. Jackson, supra, 13 Cal.4th at pp. 1243-1244, quoting People v. Johnson (1992) 3 Cal.4th 1183, 1250.) (3) CALJIC No.8.88 is not flawed becauseit “does not inform the jury thatit is required to return a verdictoflife imprisonment withoutpossibility of paroleifit finds the aggravating factors do not outweighthe mitigating factors.” (People v. Jackson, supra, 13 Cal.4th at pp. 1243.) This Court has repeatedly explainedthat “‘{t]he instruction clearly stated that the death penalty could be imposedonlyifthe jury foundthat the aggravating circumstances outweighed mitigating,” and that it is unnecessary to state the converse. (People v. Jackson, supra, 13 Cal.4th at pp. 1243, quoting People v. Duncan (1991) 53 Cal.3d 955, 978; see also People v. Catlin, supra, 26 Cal.4th at p. 174.) (4) As previously discussed in Argument XVIII B., ante, there is no requirement to instruct the jury on the burden of persuasion ofeither party in the penalty phaseofa capital case. (People v. Lenhart, supra, 32 Cal.4th 1107, 1135-1136; see also People v. Hillhouse (2002) 27 Cal.4th 469, 510-511; People v. Box, supra, 23 CalAth at p. 1216.) Appellant’s request that this Court reconsider its prior holdings are unpersuasive. Accordingly, his challenges fail. 182 XX. THE INSTRUCTIONS REGARDING MITIGATING AND AGGRAVATING FACTORS IN SECTION 190.3 AND THE APPLICATION OF THESE FACTORS DID NOT RENDER APPELLANT’S DEATH SENTENCE UNCONSTITUTIONAL In Argument 20 of his opening brief, appellant sets forth a series of separate attacks on the mitigating and aggravating factors in Penal Codesection 190.3, and on the death sentencing process. (AOB 299-315.) Preliminarily, appellantfailed to raise these claimsin thetrial court; therefore, they have been waived. (See People v. Williams (1997) 16 Cal.4th 153, 270.) In any event, this Court has repeatedly rejected each of these claims. Appellant provides no new reason whythis Court should reconsiderits previous decisions. Thus, all of the claims should berejected. A. Section 190.3, Factor (a), Does Not Result In The Arbitrary And Capricious Imposition Of The Death Penalty Appellant contendsthe death penalty is invalid becausesection 190.3, factor (a), as applied, allows arbitrary and capricious imposition of death in violation of the Eighth Amendmentto the United States Constitution*” (AOB 301-307.) This argumenthas beenpreviously rejected and should be rejected here. (See, e.g., People v. Maury, supra, 30 Cal.4th at p. 439; People v. Jenkins (2000) 22 Cal.4th 900, 1050-1051; see Telopeav. California (1994) 512 US. 967, 976 [explaining that 190.3, factor (a), was “neither vague nor otherwise 47. Penal Codesection 190.3, factor(a), states: In determining the penalty,the trier of fact shall take into account any of the following factors if relevant: [{] (a) The circumstancesofthe crime ofwhichthe defendant was convicted in the present proceeding and the existence of any special circumstances foundto betrue pursuant to Section 190.1. 183 improper under our Eighth Amendmentjurisprudence”]. There is no need for this Court to revisit the issue. B. Trial Court Did Not Need To Delete Sentencing Factors From CALJIC No. 8.85 Appellant contendsthat the failure to delete “inapplicable”factors from CALJIC No. 8.85%”violated his federal constitutional rights under the Sixth, 48. Thetrial court instructed the jury pursuant to CALJIC|No.8.85,as follows: In determining which penalty is to be imposed on the defendant, you shall considerall ofthe evidence which has been received during any part ofthetrial of this case. [§] You shall consider, take into account and be guided by the following factors, if applicable. [{] (a) The circumstancesofthe crime of which the defendant was convictedin the present proceeding and the existence of any special circumstances found to be true. [{] (b) The presence or absenceofcriminalactivity by the defendant, other than the crime for which the defendant has beentried in the present proceedings, which involvedthe useor 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, other than the crimes for which the defendant has been tried in the present proceedings. []] (d) Whetheror not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance. [] (e) Whether or not the victim wasa participant in the defendant's homicidal conduct or consented to the homicidal act. [¥] () Whetheror not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct. [{] (g) Whether or not the defendant acted under extreme duress or under the substantial domination ofanother person. [{]] (h) Whetheror not at the time of the offense the capacity of the defendant to 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 effects of intoxication. [J] () The age of the defendant at the time of the crime. [{] (G) Whetheror not the defendant was an accomplice to the offense 184 Eighth, and Fourteenth Amendments. (AOB 307-3 09.) As appellant “-Fecognizes (AOB 308), this Court has repeatedly rej ected identical arguments. (See, e.g., People v. Cunningham (2001)25 Cal.4th 926, 1041; accord, People v. Stanley (1995) 10 Cal.4th 764, 842.) As this Court reiterated in People v. Yeoman, supra, 31 Cal.4th at pp. 164-165: Trial courts neednotdelete from the list of sentencing factors set out in CALJIC No.8.85 those that may not apply. [Citation.] The failure to do so does not deprive defendantof his rights to an individualized sentencing determination[citation] orto a reliable judgment [citation]. Because appellant providesno basis for rejecting these cases, his claim fails. C. The Trial Court Did Not Err By Not Delineating Which Penalty Factors Could Only Be Mitigating Appellant contendsthat the trial court’s failure to instruct the jury which factors were aggravating, which were mitigating, or which could be either aggravating or mitigating deprived him of his Eighth and Fourteenth Amendmentrightsto a fair and reliable penalty determination. (AOB 309-310.) Hearguesthat the use of the phrase “whether or not” — in this case, in factors designated as(d),(e), (f), (g), (h), and Gj) could have led the jury to believe that the absence of any of these mitigating factors could constitute an aggravating factor. Respondent disagrees. and his participation in the commission of the offense was relatively minor. [§] (k) Any other circumstance which extenuatesthe gravity of the crime even though it is not a legal excuse for the crime and any sympathetic or other aspect of the defendant's character or record that the defendant offers as a basis for a sentenceless than death, whether or notrelated to the offense for which heis on trial. [§] You must disregard anyjury instruction given to you in the guilt or innocence phaseofthis trial which conflicts with this principle. (32RT 5398-5400.) 185 Appellantis not arguing that the trial court’s penalty instructions were ‘inaccurate, but rather that the court should have given a further clarifying instruction stating that certain of the factors listed in CALJIC No.8.85 could only betreated as mitigating. Appellant, however, made no request for such an instruction in the trial court. As such, he has failed to preserve this claim for appeal. (People v. Hillhouse, supra, 27 Cal.4th at p. 503.) Notwithstanding waiver, the claim is meritless because this Court has repeatedly rejectedit. (See, e.g., People v. Farnam,supra, 28 Cal.Ath at p. 191; People v. Maury, supra, 30 Cal.4th at pp. 443-444; People v. Catlin, supra, 26 Cal.4th at p. 178; People v. Cunningham, supra, 25 Cal.4th at p. 1041; People v. Ochoa (1998) 19 Cal.4th 353, 458; People v. Williams, supra, 16 Cal.4th at pp. 271-272.) As appellant offers no persuasive reason forthis Court to revisit its longstanding rejection of such claims,the instant claim should similarly be rejected. D. Adjectives Used In Conjunction With Mitigating Facts Do Not Act As Unconstitutional Barriers To Consideration Of Mitigation Appellant asserts that the use of “restrictive” adjectives in the list of potential mitigating factors — i.e., the words “extreme”in factors (d) and (g), and “substantial” in factor (g) — impermissibly acted as unconstitutional barriers to consideration of mitigation by his jury in violation of the Sixth, Eighth and Fourteenth Amendments. (AOB 310.) This contention is without merit. This Court previously has held that the words “extreme” and “substantial,” as set forth in the death penalty statute, do “not impermissibly limit consideration of mitigating factors in violation ofthe federal Constitution. [Citations.]” (People v. Prieto, supra, 30 Cal.4th at p. 276; People v. Maury, supra, 30 Cal.4th at p. 439, citing People v. Barnett, supra, 17 Cal.4th at pp. 1178-1179, People v. Williams, supra, 16 Cal.4th at p. 276, and People v. Scott (1997) 15 Cal.4th 186 1188, 1227-1228; see also People v. Arias (1996) 13 Cal.4th 92, 188-189 {words “extreme” and “substantial” are not impermissibly vague]; People v. Stanley, supra, 10 Cal.4th at p. 842 [same].) Appellant’s contention should be rejected. E. Written Findings On Aggravating Factors Are Not Required Appellant argues the jury should have been requiredto return written findings identifying the aggravating factors supporting the death verdict. (AOB 310-311.) This Court has previously rejected identical arguments. (People v. Prieto, supra, 30 Cal.4th at p. 275; People v. Snow, supra, 30 Cal.4th at p. 126; People v. Yeoman, supra, 31 Cal.4th at pp. 164-165; People v. Martinez, supra, 31 Cal.4th at p. 701; People v. Lucero (2000) 23 Cal.4th 692, 741.) Appellant provides no basis for rejecting those cases. F. Appellant’s Equal Protections Rights Were Not Implicated By Absence Of The “Previously Addressed Procedural Safeguards” Appellant contendsthe absenceofthe “previously addressed procedural safeguards” resulted in a denial of his equal protection rights, because, according to him, those safeguards are provided to non-capital defendants. (AOB 313-315.) Insofar as these unspecified “procedural safeguards” relate to penalty phase procedures, capital and non-capital defendants are not similarly situated and thus maybetreated differently without violating equal protection principles. (See People v. Johnson, supra, 3 Cal.4th at pp. 1242-1243 .) Insofar as appellant arguesthe lack of intercase proportionality review in capital cases amounts to a violation of equal protection, this Court has previously rejected this claim and should do so here. (See People v. Cox, supra, 30 Cal.4th at p. 970.) | 187 For the foregoing reasons, appellant’s challenge to California’s death ‘penalty procedures should berejected. 188 XXI. CALIFORNIA’S USE OF THE DEATH PENALTY DOES NOT VIOLATE INTERNATIONAL LAW OR THE EIGHTH AMENDMENT In Argument21 of his opening brief, appellant contendsthat his death sentence violates international law and the federal constitutional ban on cruel and unusual punishmentunder the Eighth Amendment. (AOB 316-321 .) The Court should reject appellant’s argument that California’s use of the death penalty violates international law asit has in the past. (See People v. Snow, supra, 30 Cal.4th at p. 126; People v. Bolden (2000) 29 Cal.4th 515, 567; People v. Hillhouse, supra, 27 Cal.Ath at p. 511; Peoplev. Ochoa, supra, 26 Cal.4th at p. 462; People v. Jenkins, supra, 22 Cal.4th at p. 1055; People v. Ghent (1987) 43 Cal.3d 739, 778-779; see also Buell v. Mitchell (6th Cir. 2001) 274 F.3d 337, 370-376 [upholding Ohio’s death penalty scheme againstclaims that it violated international law].) This Court has also rejected appellant’s contention that California’s use of the death penalty constitutes cruel and unusual punishment in violation of the Eighth Amendmentto the federal Constitution. (People v. Fairbank (1997) 16 Cal.4th 1223, 1255; People v. Samayoa (1997) 15 Cal.4th 795, 864-865.) Appellant does not provide sufficient reasoning to revisit the issue here, and thus,his claims should be rejected. 189 XXiIl. THE PENALTY-PHASE SPECIAL INSTRUCTIONS WERE PROPERLY REJECTED In Argument22 of his openingbrief, appellant contends that the trial court erred by refusing to instruct the jury with six defense-requested penalty phasespecial instructions regarding (1) mercy, compassion, and sympathy;(2) deterrence; (3) lingering doubt; and(4) character and background. (AOB 322- 327.) Respondent submitsthat the trial court properly refusedthe instructions as they were either argumentative or duplicative of other properly given instructions. | A. The Trial Court Properly Rejected The Defense-Requested Special Instructions Because They Were Argumentative Or Duplicative This Court has explained: [T]he standard CALJIC penalty phase instructions “are adequate to inform the jurors oftheir sentencing responsibilities in compliance with federal and state constitutional standards.” [Citation.] Moreover, the generalrule is that a trial court may refusea proffered instruction ifit is an incorrect statement of law, is argumentative, or is duplicative. [Citation.] Instructions shouldalso be refused ifthey might confuse the jury. [Citation.] (People v. Gurule (2002) 28 Cal.4th 557, 659.) “Although instructions pinpointing the theory of the defense might be appropriate, a defendantis not entitled to instructions that simply recite facts favorable to him. [Citation.]” (People v. Gutierrez, supra, 28 Cal.4th at p. 1159, originalitalics omitted.) 190 -1. The Mercy, Compassion, And Sympathy Instructions Appellant’s trial counsel proposed the following two instructions regarding mercy, compassion, and sympathy: In determining whether to sentence the defendant to life imprisonment without the possibility of parole or to death, you may decide to exercise mercy on behalf of the defendant. (31RT 5374) If the mitigating evidence givesrise to compassion or sympathy for the defendant, the jury may on such sympathy and compassion alone reject death as a penalty. A mitigating factor does not have to be proved beyond a reasonable doubt. (31RT 5387-5388.) Appellant contends that the trial court erred in refusing these special instructions. However, this Court has rejected similar challenges in othercases. (See, e.g., People v. Monterroso (2004) 34 Cal.4th 743, 791-792; People v. Smith, supra, 30 Cal.4th at p. 638; People v. Prieto, supra, 30 Cal.4th at p. 271, citing People v. Lewis (2001) 26 Cal.4th 334, 393.) Here, the jury wasinstructed with CALJIC No.8.85, which this Court has held adequately covers the mercyinstruction. (People v. Prieto, supra, 30 Cal.4th at p. 271, citing People v. Lewis, supra, 26 Cal.4th at p. 393.) Additionally, the jury was also instructed with CALJIC No. 8.88, which instructed that a mitigating circumstance was “any fact, condition or event, which as such, does not constitute a justification or excuse for the crime in question, but maybe considered as an extenuating circumstance in determining the appropriateness ofthe death penalty,” and told the jury that “[y]ou are free to assign whatever moral or sympathetic value you deem appropriate to each andall the various factors you are permitted to consider.” As such, the jury was adequately informedthat the jury could take into account any sympathyit had 191 for appellant as a mitigating factor. (People v. Hughes, supra, 27 Cal.4th at p. 403 [“a trial court need not give a specific ‘mercy instruction,’ even if requested,” whenthejury is instructed with CALJIC No.8.85 and instructed that it is “free to assign whatever moral or sympathetic value you deem appropriate to each andall the various factors your are permitted to consider”}.) Thus,in light of the other instructions given,“the rejected instruction[s were] cumulative.” (People v. Prieto, supra, 30 Cal.4th at p. 271, footnote omitted.) 2. The Deterrence Instruction Appellant’s trial counsel proposed the following instruction regarding deterrence: In deciding whether death or life imprisonment without the possibility of parole is the appropriate sentence, you may not consider for any reason whateverthe deterrent or non-deterrenteffect ofthe death penalty or the monetary loss to the state of either execution or maintaining a prisonerforlife. (31RT 5375.) In People v. Benson (1990) 52 Cal.3d 754,807, this Court held that the trial court properly rejected a similar proposedinstruction thatstated the jury should not weigh “the deterrent or nondeterrent effect of the death penalty or the monetary cost to the State of execution or maintaining a prisonerfor life” in determining whether to imposelife imprisonment or death because neither party raised the issues of deterrence and costat trial. Similarly, in this case, neither party argued this issue. Furthermore, anyerror in failing to give the instruction was harmless. (People v. Hines (1997) 15 Cal.4th 997, 1066-1067.) 192 3. The Lingering Doubt Instructions Appellant’s trial counsel proposed the following two instructions regarding lingering doubt: Althoughproofofguilt beyond a reasonable doubt has been found, you may demanda greater degree ofcertainty for the imposition of the death penalty. The finding of guilt is not infallible and any lingering doubt you entertain on the question of guilt may be considered by you asa factor in mitigation in determining the appropriate penalty. (31RT 5377.) You mayconsider as a mitigating factor any lingering doubtthat you may have concerning the defendant’s guilt. Lingering orresidual doubtis defined as that state ofmind between beyonda reasonable doubtandall possible doubt. (31RT 5380.) This Court has “repeatedly . . . held that althoughit is properfor the jury to considerlingering doubt, there is no requirementthat the court specifically instruct the jury that they may do so.” (People v. Slaughter (2002) 27 Cal.4th 1187, 1218,citing People v. Staten (2000) 24 Cal.4th 434, 464; see also People v. Musslewhite (1998) 17 Cal.4th 1216, 1272.) Moreover,thejury wasinstructedit could considerthe circumstances of the crime (Pen. Code, § 190.3, factor (a)), any other circumstances that extenuatedits gravity (Pen. Code, § 190.3, factor (k)), and any sympathetic or other aspect of appellant’s character or record that suggested a sentence other than death (CALJIC No.8.85). This instruction, as noted in People v. Sanchez (1995) 12 Cal.4th 1, 77-78, is sufficiently broad to encompass any residual doubt anyjurors might have entertained. Thus, appellant’s claim of error must be rejected. (See People v. Hughes, supra, 27 Cal.4th at p. 405.) 193 - 4, The Character And Background Instruction Appellant’s trial counsel proposed the following instruction regarding character and background: Evidence of the defendant’s character and background may be considered only a factor in mitigation and cannot be usedasa factor in aggravation. The prosecutor may rebut evidence of good character or childhood deprivation or hardship with evidencerelating directly to the particular incidence or character traits on which the defendant seeks to rely and mayargue that mitigation factoris inapplicable, but such evidence may notbe used affirmatively as a circumstance in aggravation. (31RT 5385-5386) Again, CALJIC No.8.85 covered these issues. The jury wasinstructed to reach its sentencing determination by weighing the factors in aggravation against the factors in mitigation and the applicable factors, which included consideration of appellant’s character and background.In addition, contrary to the language of the proposedinstruction,“the trial court had no obligationto advise the jury which statutory factors are relevant solely as mitigating circumstances and which are relevant solely as aggravating circumstances. [Citations.]” (People v. Farnam, supra, 28 Cal.4th at p. 191.) Therefore, the trial court did not err in refusing the proffered instructions. 194 B.. Harmless Error Regardless, even if the trial court erred by failing to give any of the defense-prepared instructions,there is no reasonable possibility that appellant suffered prejudice from the lack ofinstruction. (See People v. Jones, supra, 29 Cal.4th at p. 1264; People v. Brown (1988) 46 Cal.3d 432, 448-449.) During closing argument of the penalty phase retrial, appellant’s trial counsel adequately covered all of the topics in the proposed defense instructions and repeatedly referred to the standard instructions regarding those topics. He told the jury that they wereto vote their own conscience and actas individuals when makingapenalty decision,andalso reiterated the warning in CALJIC No.8.88 that weighing the evidence wasnot a mathematical formula and that each juror was to give whatever weighthe or she felt each applicable factor deserved. Additionally, he arguedthat one factor in mitigation can outweigh more factors in aggravation. Moreover, as noted above, the standard instructions given informedthe jury of the proper circumstances to take into account in deciding whether to impose death orlife withoutthe possibility ofparole. In sum, there is no reasonable possibility that appellant was prejudiced. Thus, his instructionalerror claims should be rejected. 195 XXUII. CUMULATIVE ERROR DOES NOT WARRANT REVERSAL In Argument 23 ofhis openingbrief, appellant contends the cumulative effect of the alleged errors occurring during both the guilt and penalty phases require reversal ofthe death judgment. (AOB 328-330.) Respondentdisagrees as no error occurred during either the guilt or penalty phase, and,to the extent there waserror, appellant has failed to demonstrate prejudice. Moreover, whether considered individually or for their cumulative effect, the alleged errors could not have affected the outcome ofthe trial. (People v. Seaton (2001) 26 Cal.4th 598, 691-692; People v. Ochoa, supra, 26 Cal.4th at p. 458; People v. Catlin, supra, 26 Cal4th at p. 180.) A defendant is entitled to fairtrial, not a perfect one. (People v. Box, supra, 23 Cal.4th at p. 1214.) Appellant received a fair trial. 196 CONCLUSION Accordingly, respondent respectfully requests that the judgment be affirmed. Dated: April 17, 2006 SEL:mg LA1996XS0002 60137388.wpd Respectfully submitted, BILL LOCKYER Attorney Generalof the State of California ROBERT R. ANDERSON Chief Assistant Attorney General PAMELA C. HAMANAKA Senior Assistant Attorney General JOHN R. GOREY Deputy Attorney General Sfeua,feghoe SHARONE. LOUGHNER Deputy Attorney General Attorneys for Plaintiff and Respondent 197 CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S BRIEFusesa 13 point Times New Roman font and contains 56,485 words. Respectfully submitted, BILL LOCKYER Attorney General of the State of California Weilugha_A SHARON E. LOUGHNER Deputy Attorney General DECLARATION OF SERVICE BY U.S. MAIL Case Name: People v. Sergio D. Nelson No.: S048763 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 years of age and older and not a party to this matter. I am familiar with the businesspractice 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, correspondenceplaced in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same dayin the ordinary courseofbusiness. On April 17, 2006, I served the attached RESPONDENT?’S BRIEF by placing a true copythereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 300 South Spring Street, Suite 1702, Los Angeles, CA 90013, addressed as follows: SEE ATTACHED SERVICELIST The one copyfor the California Appellate Project was placed in the box for the daily messenger run system established between this Office and California Appellate Project (CAP) in Los Angeles for same day, personal delivery. I declare underpenalty of perjury underthe lawsof the State of California the foregoingis true and correct and that this declaration was executed on April 17, 2006, at Los Angeles, California. r Melissa Garcia Declarant Signature SEL:mg LA1996XS0002 50089291.wpd Service List People v. Sergio D. Nelson Joseph E. Chabot Deputy State Public Defender State Public Defender’s Office 221 Main St., 10th Floor San Francisco, CA 94105 (Two copies for Mr. Chabot) Honorable John A. Clarke County Clerk/Executive Officer Los Angeles County Superior Court 111 N. Hill Street Los Angeles, CA 90012 Michael G. Millman Executive Director California Appellate Project 101 SecondStreet, Suite 600 San Francisco, CA 94105 Case No.: 8048763 Governor’s Office Attn: Legal Affairs Secretary State Capitol, First Floor Sacramento, CA 95814 Honorable Steve Cooley Los Angeles County District Attorney Attn.: Gary F. Hearnsberger Deputy District Attorney 210 West Temple Street, Suite 18000 Los Angeles, CA 90012