PEOPLE v. ROMERO (ORLANDO) & SELF (CHRISTOPHER)Respondent’s BriefCal.February 27, 2008 SUPREME COUN) COPY IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THESTATE OF CALIFORNIA, Plaintiff and Respondent, S055856 V. CAPITAL CASE ORLANDO GENE ROMERO & CHRISTOPHER SUPREME COURT “ FILED Defendants and Appellants. FEB 27 2008 Riverside County Superior Court No. CR 46579 Frederick K. Ohirich Clark The Honorable Ronald L. Taylor, Judge Deputy RESPONDENT?’SBRIEF EDMUND G. BROWN JR. Attorney Generalof the State of California DANE R. GILLETTE Chief Assistant Attorney General GARY W. SCHONS / Senior Assistant Attorney General HOLLY D. WILKENS Deputy Attorney General IVY B. FITZPATRICK Deputy Attorney General State Bar No. 219316 110 West A Street, Suite 1100 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 645-2297 Fax: (619) 645-2191 Email: Ivy.Fitzpatrick@doj.ca.gov Attorneys for Respondent TABLE OF CONTENTS Page INTRODUCTION 1 STATEMENT OF THE CASE 2 STATEMENT OF FACTS 5 Guilt Phase 5 Robbery Of William Meredith, October 8, 1992 (Count IV) 7 Murders Of Joey Mans And Timothy Jones, October 12, 1992 (Counts I & UT) 9 Attempted Murder Of Kenneth Mills And Related Crimes, October 23, 1992 (Counts V, VI, VII, & VII) 16 Attempted Murders Of Paulita Williams And Randolph Rankins, October 26, 1992 (Counts IX & X) 19 Burglary And Vandalism Of Magnolia CenterInteriors, November14, 1992 (Counts XI & XI) 24 Kidnaping And Robbery OfAlfred Steenblock, November 18, 1992 (Counts XII & XIV) 25 Robbery Of Albert Knoefler, November 20, 1992 (Count XV) 27 Robbery OfJerry Mills, Sr., And Jerry Mills, Jr., And Receipt Of Their Stolen Property, November 21, 1992 (Counts XVI & XVII) 29 Murder Of Jose Aragon, November 25, 1992 (CountII) 32 Self’s Attempted Murder And Robbery Of John. Feltenberger, November 30, 1992 (Counts XVIII & XIX), And Romero’s Receipt of Feltenberger’s Stolen Ammunition Pack (Count XX) 39 Romero’s Kidnaping And Robbery OfRobert Greer, December5, 1992(Counts XXI & XXII) 43 Romero’s Robbery Of Roger Beliveau, December 7, 1992 (Count XXII) 46 TABLE OF CONTENTS(continued) Page Munoz’s Arrest 47 Searches And Recovery Of Evidence 48 Appellants’ Arrests 50 Self's Escape Attempt 51 Romero’s Escape Attempts 52 Defense 54 PENALTY PHASE 54 Impact Of Appellants’ Crimes On Jose Aragon’s Family And Friends 54 Impact Of Appellants’ Crimes On Joey Mans’ Family 56 Impact Of Appellants’ Crimes On Timothy Jones’ Family 57 Appellants’ Violence Continued While Awaiting Trial 58 Romero’s Assault On Rodney Medeiros 58 Romero’s Assault On Walter Jutras 58 Romero’s Assault On Olen Thibedeau . 59 Romero’s Assaults On Tyreid Hodges 60 Romero’s Shank Possessions 61 Self’s Assault On Richard Reyes 61 Self’s Assault On Oswaldo Vasquez 62 Self?s Assault On Mario Garcia Pescador 63 Self’s Assault On Jacob Aramburo 63 il TABLE OF CONTENTS(continued) ARGUMENT I. Il. Page Self’s Shank Possessions 64 Self’s Prior Violent Conduct While In High School 65 Defense Evidence In Mitigation 65 72 THE TRIAL COURT APPROPRIATELY DECLINED TO SEVER THE MAGNOLIA CENTER INTERIORS CHARGES (COUNTSXI & XII) AND THE RECEIVING STOLEN PROPERTY CHARGE(COUNTXX) FROM THE REMAINING CHARGES 72 A. The Magnolia Center Interiors Charges (Counts XI & XII) And Receiving Stolen Proper Charge (Count XX) Were Properly Joined B. The Trial Court Appropriately Declined To Sever The Charges 1. The Evidence Was Cross-admissible 2. The Charges Were Unlikely To Inflame The Jury 3. Counts XI, XI, And XX Did Not Unfairly Bolster The Remaining Charges 4. Defendants Were Not Prejudiced By Consolidation THE TRIAL COURT DID NOT COMMIT REVERSIBLE ERROR WHEN IT EXCUSED SEVERAL PROSPECTIVE JURORS FOR CAUSE BASED UPON INFORMATION THEY PROVIDED IN THEIR QUESTIONNAIRES A. Self Waived The Right To Challenge The Trial Court’s Dismissal OfProspective Jurors Based On Their Answers To The Questionnaire, Or The Race And Ethnicity Question In The Questionnaire ili 74 76 78 80 81 84 93 Hil. IV. TABLE OF CONTENTS(continued) Page B. SelfFails To Establish How The Single Question Asking For The Prospective Juror’s Race And Ethnicity Amounted To Error Or Resulted In Prejudice C. Substantial ImpairmentIs Demonstrated By The Information In The Questionnaire Of Each Prospective Juror That Self Now Complains Were Improperly Discharged 1. Prospective Jurors Yolanda B.-M., Jeffrey L., Kay T., Randy M., And Ron U. Were Properly Dismissed For Reasons Other Than Their Positions On The Death Penalty 2. Prospective Jurors Joshua V., Peggy K., Beatrice M., Pamela C., Brian S., And Michael H. Were Properly Dismissed Because Their Questionnaires Demonstrated Substantial Impairment Based On Their Views Toward The Death Penalty SELF WAIVED HIS CLAIMS’ OF PROSECUTORIAL MISCONDUCT, AND IN ANY EVENT, HIS CLAIMS LACK MERIT A. The Prosecutor Did Not Improperly Target Hispanic Jurors During Voir Dire B. TheProsecutor Did Not Mislead The Jury On The Nature Of Mitigating Evidence C. The Prosecutor Did Not Impermissibly Vouch For The Credibility Of Jose Munoz TESTIMONY REGARDING THE FELTENBERGER ROBBERY-SHOOTING WAS PROPERLY ADMITTED AS RELEVANT EVIDENCE ESTABLISHING ROMERO’S GUILT TO THE RECEIVING STOLEN PROPERTY CHARGEAND SUPPORTINGTHE CREDIBILITY OF JOSE MUNOZ 1V 112 116 118 123 128 129 134 137 140 VI. VII. VU. IX. TABLE OF CONTENTS(continued) Page SUBSTANTIAL EVIDENCE SUPPORTS SELF’S CONVICTIONS FOR ROBBERY IN COUNT XV (KNOEFFLER) AND ATTEMPTED MURDER, ATTEMPTED ROBBERY, AND MAYHEM IN COUNTS V THROUGHVII (MILLS-EWY) A. Substantial Evidence Establishes Self Was Present At The ’ Knoeffler Robbery, Knew OfAnd Encouraged The Plan To Rob Knoeffler, And Intentionally Assisted The Robbery By Acting As A Lookout And Facilitating The Getaway And Disposal Of Knoeffler’s Property B. Substantial Evidence Corroborates Munoz’s Testimony That SelfLeaned Out The Left Rear Window OfThe Colt, Aimed His Shotgun Over The Roof, And Shot Mills In The Face THE SPECIAL CIRCUMSTANCES WERE LAWFULLY ENACTED BY PROPOSITION115 THE INSTRUCTIONS CONSIDERED IN PART AND IN WHOLE DID NOT LESSEN THE PROSECUTOR’S BURDEN OF PROVING APPELLANTS GUILTY BEYOND A REASONABLE DOUBT CALJIC NO. 3.02 PROPERLY INSTRUCTED THE JURY ON AIDER AND ABETTOR LIABILITY UNDER THE NATURAL AND PROBABLE CONSEQUENCES DOCTRINE APPELLANTS WAIVED THEIR CLAIM OF ERROR REGARDING THE ACCOMPLICE INSTRUCTIONS; IN ANY EVENT, THE TRIAL COURT PROPERLY INSTRUCTED THE JURIES ON ACCOMPLICE CORROBORATION AND APPELLANTS WERE NOT PREJUDICED SELF FORFEITED HIS JUROR BIAS CLAIM, AND IN ANY EVENT, BECAUSE THE JURORS INDICATED THEY WOULD FAITHFULLY AND IMPARTIALLY PERFORM THEIR DUTIES, SELF’S CONSTITUTIONAL RIGHTS TO A FAIR | v 150 154 158 161 164 172 175 XI. XII. XIV. TABLE OF CONTENTS(continued) TRIAL AND IMPARTIAL JURY WERE NOT ABRIDGED APPELLANTS WERE NOT PREJUDICED BY TECHNICAL CHARGING ERROR ALLEGING DUPLICATE MULTIPLE MURDER SPECIAL CIRCUMSTANCES THE TRIAL COURT’S ADMISSION OF VICTIM IMPACT EVIDENCE DID NOT ABRIDGE APPELLANTS’ CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR AND RELIABLE PENALTY DETERMINATION, NOR DID THE PROSECUTOR COMMIT MISCONDUCT IN OFFERING AND ARGUING VICTIM IMPACT EVIDENCE THE TRIAL COURT PROPERLY ADMITTED EVIDENCE OF ROMERO’S ESCAPE ATTEMPT, SHANK POSSESSIONS, AND MULTIPLE ASSAULTS UPON FELLOW INMATE TYREID HODGES Page 185 200 204 222 A. Romero’s Escape Attempt Constituted “Criminal Activity” And Was Properly Admitted Under Penal Code Section 190.3, Subdivision (b); It Was Also Properly Admitted At The Guilt Phase As Evidence Of Consciousness Of Guilt 223 B. Romero’s Shank Possessions, Assaults On Tyreid Hodges, And Escape Attempt Involved The Threat Of Violence And Were Properly Admitted Under Penal Code Section 190.3, Subdivision (b) THE PROSECUTOR DID NOT COMMIT MISCONDUCT IN SEEKING ADMISSION OF ROMERO’S STATEMENTS CONCERNING THE THIBEDEAU ATTACK, NOR DID HE COMMIT MISCONDUCT IN ARGUING ROMERO’S FUTURE DANGEROUSNESSBASED UPON THE ATTACK AND THE ADMITTED STATEMENTS vi 230 235 TABLE OF CONTENTS(continued) Page XV. THE TRIAL COURT PROPERLY EXCLUDED EVIDENCE OF APPELLANTS’ MOTHER’S CHILDHOOD HISTORY OF INCEST 241 XVI. THE PROSECUTOR DID NOT COMMIT MISCONDUCT IN ARGUING APPELLANTS’ POTENTIAL FOR FUTURE VIOLENT CONDUCT 248 XVI. THE TRIAL COURT PROPERLY REFUSED TO INSTRUCT THE JURIES WITH APPELLANTS’ PROPOSED PENALTY PHASE INSTRUCTIONS 252 A. Romero Never Requested A Non-unanimity Instruction For Mitigating Factors, And In Any Event, No Such Instruction Was Necessary 254 B. The Trial Court Properly Refused Appellants’ Cautionary And Limiting Instruction Regarding Victim Impact Evidence 256 C. The Trial Court Properly Refused Appellants’ Proposed Instruction Regarding The Use OfAn Accomplice’s Sentence As A Basis For Leniency, And Properly Restricted Argument On This Subject 259 D. Assuming Arguendo The Trial Court Erroneously Refused Any OfAppellants’ Proposed Instructions, The Alleged Error Was Harmless 260 XVII THIS COURT HAS CONSIDERED AND REJECTED APPELLANTS’ VARIOUS CHALLENGES TO THE CONSTITUTIONALITY OF CALIFORNIA’S DEATH PENALTY LAW AND IMPLEMENTING INSTRUCTIONS 262 XIX. THERE WAS NO CUMULATIVE ERROR 270 CONCLUSION 272 vil TABLE OF AUTHORITIES Cases Adamsv. Texas (1980) 448 USS. 38, 45 100 S.Ct. 2521 65 L.Ed.2d 581 Apprendi v. New Jersey (2000) 530 U.S. 466 120 S.Ct. 2348 147 L.Ed.2d 435 Barefoot v. Estelle (1983) 463 U.S. 880 103 S.Ct. 3383 77 L.Ed.2d 1090 Blakely v. Washington (2004) 542 U.S. 296 124 S.Ct. 2531 159 L.Ed.2d 403 Booth v. Maryland (1987) 482 U.S. 496 107 S.Ct. 2529 96 L.Ed.2d 440 Boyde v. California (1990) 494 U.S. 370 110 S.Ct. 1190 108 L.Ed.2d 316 Brown v. Sanders (2006) 546 U.S. 212 126 S.Ct. 884 163 L.Ed.2d 723 Vili Page 188 267 250 267 207 179 203 TABLE OF AUTHORITIES(continued) Page Carter v. Kentucky (1981) 450 U.S. 288 101 S.Ct. 1112 67 L.Ed.2d 241 128, 170 Chapmanv. California (1967) 386 US. 18 87 S.Ct. 824 17 L.Ed.2d 705 182, 261 Clemons v. Mississippi (1990) 494 US. 738 110 S.Ct. 1441 108 L.Ed.2d 725 268 Copley Press v. Superior Court (1991) 228 Cal.App.3d 77 105 Duren v. Missouri (1979) 439 U.S. 357 99 S.Ct. 664 58 L.Ed.2d 579 113 Eddings v. Oklahoma (1982) 455 U.S. 104 102 S.Ct. 869 71 L.Ed.2d 1 243 Enmund vy. Florida (1982) 458 U.S. 782 102 S.Ct. 3368 73 L.Ed.2d 1140 269 Estelle v. McGuire (1991) 502 US. 62 112 S.Ct. 475 . 116 L.Ed.2d 385 178 ix TABLE OF AUTHORITIES (continued) Page Gray v. Mississippi (1987) 481 U.S. 648 107 S.Ct. 2045 95 L.Ed.2d 622 118 Hammondv. United States (9th Cir. 1966) 356 F.2d 931 271 Hildwin v. Florida (1989) 490 US. 638 109 S.Ct. 2055 104 L.Ed.2d 728 268 Hovey v. Superior Court (1980) 28 Cal.3d 1 85 Hughes v. United States (6th Cir. 2001) 258 F.3d 453 186, 232 In re Anthony J. (2004) 117 Cal.App.4th 718 147 In re Hochberg (1970) 2 Cal.3d 870 3 In re Juan G. (2003) 112 Cal.App.4th 1 155 Jackson v. Virginia (1979) 443 U.S. 307 99 S.Ct. 2781 61 L.Ed.2d 560 152 Johnson v. Armontrout (8th Cir. 1992) 961 F.2d 748 187 Lesher Communications v. Superior Court (1990) 224 Cal.App.3d 774 105 TABLE OF AUTHORITIES(continued) Page Lockhart v. McCree (1986) 476 U.S. 162 106 S.Ct. 1758 90 L.Ed.2d 137 117 Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057 210 McCollough v. Bennett (N.D.N.Y. 2003) 317 F.Supp.2d 112 187 Morganv. Illinois (1992) 504 U.S. 719 112 S.Ct. 2222 119 L.Ed.2d 492 189 Parker v. Dugger (1991) 498 U.S. 308 111 S.Ct. 731 : 112 L.Ed.2d 812 260 People v. Abilez (2007) 41 Cal.4th 472 94, 112, 130 People v. Alcala (1984) 36 Cal.3d 604 181 People v. Allen (1986) 42 Cal.3d 1222 200-202, 269 People y. Alvarez (2002) 27 Cal.4th 1161 147 People v. Anderson ~ (1990) 52 Cal.3d 453 171 x1 TABLE OF AUTHORITIES (continued) Page People v. Andrews (1989) 49 Cal.3d 200 201 People v. Arias (1996) 13 Cal.4th 92 77, 163, 266, 268 People v. Ashmus (1991) 54 Cal.3d 932 © 118, 242, 257, 258 People v. Avena (1996) 13 Cal.4th 394 | 200, 201, 203 People v. Avila (2006) 38 Cal.4th 491 77, 100, 101, 103, 104, 106-108, 117, 123, 127, 153, 154, 157, 271 People v. Balderas (1985) 41 Cal.3d 144 263 People v. Bean (1988) 46 Cal.3d 919 74, 153 People v. Bell (1989) 49 Cal.3d 502 250 People v. Benavides (2005) 35 Cal.4th 69 94, 96, 99-101, 104, 110 People v. Bias (1959) 170 Cal.App.2d 502 181 People v. Bittaker (1989) 48 Cal.3d 1046 102 People v. Bloyd (1987) 43 Cal.3d 333 . 152 People v. Bolin (1998) 18 Cal4th 297 152 Xil TABLE OF AUTHORITIES (continued) People v. Bonilla (2007) 41 Cal.4th 313 People v. Box (2001) 23 Cal.4th 1153 People v. Boyde (1988) 46 Cal.3d 212 People v. Boyer (2006) 38 Cal.4th 412 People v. Boyette (2002) 29 Cal.4th 381 People v. Breaux (1991) 1 Cal.4th 281 People v. Brown (1988) 46 Cal.3d 432 People v. Brown (2003) 31 Cal.4th 518 People v. Brown (2004) 33 Cal.4th 382 People v. Burgener (2003) 29 Cal.4th 833 People v. Carpenter (1999) 21 Cal.4th 1016 People v. Carter (2003) 30 Cal.4th 1166 Page 186 210, 226, 270 225 176, 182 189, 197, 209, 210, 212, 213, 216, 250, 266 254, 255 261 258 167, 207, 216, 217, 220, 269 113, 114, 115 263, 268 266 Xi TABLE OF AUTHORITIES (continued) People v. Carter (2005) 36 Cal.4th 1114 People v. Catlin (2001) 26 Cal.4th 81 People v. Champion (1995) 9 Cal.4th 879 People v. Chessman (1959) 52 Cal.2d 467 People v. Clark (1993) 5 Cal.4th 950 People v. Clay (1964) 227 Cal.App.2d 87 People v. Coddington (2000) 23 Cal.4th 529 People v. Coffman & Marlow (2004) 34 Cal.4th 1 People v. Colantuono (1994) 7 Cal.4th 206 People v. Coleman (1988) 46 Cal.3d 749 People v. Combs (2004) 34 Cal.4th 821 People v. Cook (2006) 39 Cal.4th 566 People v. Cooper (1991) 53 Cal.3d 1158 xiv Page 70 182 230, 250 75 211, 212,214 72, 97, 270 146, 254 173, 174, 186, 190 233 102 224, 230, 234, 267, 268 154, 182, 253, 255 154 TABLE OF AUTHORITIES (continued) People v. Cox (1991) 53 Cal.3d 618 People v. Cox (2003) 30 Cal.4th 916 People v. Crittenden (1994) 9 Cal.4th 83 People v. Cudjo (1994) 6 Cal.4th 585 People v. Cuevas (1995) 12 Cal.4th 252 People v. Cunningham (2001) 25 Cal.4th 926 People v. Daniels (1991) 52 Cal.3d 815 People v. Danielson (1992) 3 Cal.4th 691 People v. Davenport (1995) 11 Cal.4th 1171 People v. Davis (1954) 43 Cal.2d 661 People v. Davis (1995) 10 Cal.4th 463 People v. Davis (2005) 36 Cal.4th 510 XV Page 211, 269 263 145, 146, 148, 198, 199 85 152 117, 123, 127, 271 169, 201 259 238, 250 158 242 165 TABLE OF AUTHORITIES(continued) People v. Demetrulias (2006) 39 Cal.4th 1 People v. Diaz (1992) 3 Cal.4th 495 People v. Dillon (1983) 34 Cal.3d 441 People v. Duncan (1991) 53 Cal.3d 955 People v. Dunkle (2005) 36 Cal.4th 939 People v. Dyer (1988) 45 Cal.3d 69 People v. Edwards (1991) 54 Cal.3d 787 People v. Elliot (2005) 37 Cal.4th 488 People v. Ervin (2000) 22 Cal.4th 48 People v. Fairbank (1997) 16 Cal.4th 1223 People v. Farnam (2002) 28 Cal.4th107 People v. Fierro (1991) 1 Cal.4th 173 People v. Freeman (1994) 8 Cal.4th 450 xvi Page 244 201 228 266 263, 265, 267-269 201, 202 207, 213, 215, 216, 243 269 95, 96, 104, 110, 111 262 262 137 166 TABLE OF AUTHORITIES(continued) People v. Frye (1998) 18 Cal.4th 894 People v. Fudge (1994) 7 Cal.4th 1075 People v. Gallego (1990) 15 Cal.3d 115 People v. Gallegos (1974) 39 Cal.App.3d 512 People v. Gammage (1992) 2 Cal.4th 693 People v. Garceau (1993) 6 Cal.4th 140 People v. Garrison (1989) 47 Cal.3d 746 People v. Gauze (1975) 15 Cal.3d 709 People v. Geier (2007) 41 Cal.4th 555 People v. Gibson (1976) 56 Cal.App.3d 119 People v. Goldberg (1984) 161 Cal.App.3d 170 People v. Gonzalez (2006) 38 Cal.4th 932 People v. Goodall (1951) 104 Cal.App.2d 242 XVil Page 3, 172, 178, 179, 266, 268 192 201, 225 225 169 146, 181 154, 201 76 181 181 171 240 72, 97, 270 TABLE OF AUTHORITIES(continued) People v. Gray (2005) 37 Cal.4th 168 People v. Guerra (2006) 37 Cal.4th 1067 People v. Gurule (2002) 28 Cal.4th 557 People v. Gutierrez (2002) 28 Cal.4th 1083 People v. Hall (1986) 41 Cal.3d 826 People v. Halvorsen (2007) 42 Cal.4th 379 People v. Hardy (1992) 2 Cal.4th 86 People v. Harris (1984) 36 Cal.3d 36 People v. Harris (2005) 37 Cal.4th 310 People v. Hawthorne (1992) 4 Cal4th 43 People v. Hayes (1999) 21 Cal.4th 1211 People v. Haynes (1998) 61 Cal.App.4th 1282 People v. Heard (2003) 31 Cal.4th 346 XVili Page 263, 267 145, 146, 168, 179, 239 253, 257, 264 77, 253 243 201 210, 212 201 213, 215, 216, 258 263 153, 183 155 113, 145 TABLE OF AUTHORITIES(continued) People v. Hearon (1999) 72 Cal.App.4th 1285 People v. Hill (1992) 3 Cal.4th 959 People v. Hill (1998) 17 Cal.4th 800 People v. Hillhouse (2002) 27 Cal.4th 469 People v. Hines (1997) 15 Cal.4th 997 People v. Hinton (2006) 37 Cal.4th 839 People v. Hollbrook (1959) 45 Cal.2d 228 People v. Holloway (2004) 33 Cal.4th 96 People v. Holt (1997) 15 Cal.4th 619 People v. Horning (2004) 34 Cal.4th 871 People v. Hoyos (2007) 41 Cal.4th 872 People v. Hudson (2006) 38 Cal.4th 1002 People v. Huggins (2006) 38 Cal.4th 175 X1X Page 166, 172 96 154, 167 157, 160 259 165, 186, 263 181 245-247 123 269 162 178 179, 209-212, 215 TABLE OF AUTHORITIES (continued) People v. Jackson (1996) 13 Cal.4th 1164 People v. Jennings (1991) 53 Cal.3d 334 People v. Johnson (1980) 26 Cal.3d 557 People v. Jones (1969) 274 Cal.App.2d 614 People v. Jones (1997) 15 Cal.4th 119 People v. Jones (2003) 29 Cal.4th 1229 People v. Jones (2003) 30 Cal.4th 1084 People v. Jurado (2006) 38 Cal.4th 72 People v. Karis (1988) 46 Cal.3d 612 People v. Key (1984) 153 Cal.App.3d 888 People v. Kipp (1998) 18 Cal.4th 349 People v. Kipp (2001) 26 Cal.4th 1100 People v. Kirkpatrick (1994) 7 Cal4th 988 KX Page 229, 248, 259 226, 227 152 155 238 150, 201, 220, 229, 248, 261 154, 220 168, 215 244 181 225 226, 228, 229, 266, 268, 270 215 TABLE OF AUTHORITIES(continued) Page People v. Kraft (2000) 23 Cal.4th 978 74 People v. Lancaster (2007) 41 Cal.4th 50 224, 225, 228, 229, 233 People v. Ledesma (1987) 43 Cal.3d 171 105, 190, 198, 199 People v. Lenard (2004) 32 Cal.4th 1107 267, 268 People v. Lewis (2001) 25 Cal.4th 610 170, 171 People v. Lewis (2001) 26 Cal.4th 334 104, 178, 262 People v. Lewis (2006) 39 Cal.4th 970 208, 211, 212 People v. Lewis and Oliver (2006) 39 Cal.4th 970 220, 221, 230-232, 234, 248 People v. Lucero (2000) 23 Cal. 4th 692 262 People v. Lucky (1988) 45 Cal.3d 259 74, 82, 201 People v. Mandriquez (2005) 37 Cal.4th 547 74 People v. Marks (2003) 31 Cal.4th 197 254 People v. Marlow (2004) 34 Cal.4th 131 243 XXi TABLE OF AUTHORITIES(continued) People v. Marshall (1997) 15 Cal.4th 1 People v. Martin (1973) 9 Cal.3d 687 People v. Martinez (1987) 191 Cal.App.3d 1372 People v. Martinez (2003) 31 Cal.4th 673 People v. Mason (1991) 52 Cal.3d 909 People v. Massie (1998) 19 Cal.4th 550 People v. Mattson (1990) 50 Cal.3d 826 People v. Mayberry (1975) 15 Cal.3d 143 People v. Medina (1995) 11 Cal.4th 694 People v. Mendoza (2000) 24 Cal.4th 130 People v. Michaels (2002) 28 Cal.4th 486 People v. Mickey (1991) 54 Cal.3d 612 People v. Miller (1990) 50 Cal.3d 1002 XXil Page 78 147 168 232, 263 74, 78, 81, 225, 232, 233 210 226, 227 152 135-137, 266 74 240, 247, 250, 251 123, 243 201 TABLE OF AUTHORITIES(continued) People v. Millwee (1998) 18 Cal.4th 96 People v. Mincey (1992) 2 Cal.4th 479 People v. Mitchell (1986) 183 Cal.App.3d 325 People v. Monterroso (2004) 34 Cal.4th 743 People v. Montiel (1993) 5 Cal.4th 935 People v. Moon (2005) 37 Cal.4th 1 People v. Moore (1953) 120 Cal.App.2d 303 People v. Morris (1991) 53 Cal.3d 152 People v. Morrison (2004) 34 Cal.4th 698 People v. Murtishaw (1981) 29 Cal.3d 733 People v. Musselwhite (1998) 17 Cal.4th 1216 People v. Nakahara (2003) 30 Cal.4th 705 People v. Navarette (2003) 30 Cal.4th 458 XXlll Page 169, 240, 251 259, 260 155 263, 265, 267 211,212 180, 181, 263, 265, 266 155 186, 226, 259, 265 262, 265, 267, 269 250 76 263 207 TABLE OF AUTHORITIES (continued) People v. Ochoa (1998) 19 Cal.4th 353 People v. Ochoa (2001) 26 Cal.4th 398 People v. Odle (1988) 45 Cal.3d 386 People v. Orozco (1981) 114 Cal.App.3d 435 People v. Osband (1996) 13 Cal.4th 622 People v. Padilla (1995) 11 Cal.4th 891 People v. Panah (2005) 35 Cal.4th 385 People v. Peevy (1998) 17 Cal.4th 1184 People v. Perry (2006) 38 Cal.4th 302 People v. Phillips (2000) 22 Cal.4th 226 People v. Pinholster (1992) 1 Cal.4th 865 People v. Pitts (1990) 223 Cal.App.3d 606 People v. Pollock’ (2004) 32 Cal.4th 1153 XXIV Page 74, 76, 77, 244 78, 264 201 169 77 238 209, 210, 212, 215, 267 210 262, 263 243 234, 240, 251 155 206, 208, 212, 213, 219, 268 TABLE OF AUTHORITIES (continued) People v. Price (1991) 1 Cal.4th 324 People v. Prieto (2003) 30 Cal.4th 226 People v. Prince (2007) 40 Cal.4th 1179 People v. Raley (1992) 2 Cal. 4th 870 People v. Ramirez (2006) 39 Cal.4th 398 People v. Ramos (1997) 15 Cal.4th 1133 People v. Ramos (2004) 34 Cal.4th 494 People v. Ray (1996) 13 Cal.4th 313 People v. Redmond (1969) 71 Cal.2d 745 People v. Rich (1988) 45 Cal.3d 1036 People v. Roberts (1992) 2 Cal.4th 271 People v. Robinson (2005) 37 Cal.4th 592 People v. Rodrigues (1994) 8 Cal.4th 1060 XXV Page 242 264, 267 146, 149, 208, 240, 243 208 72, 97, 128, 271 210 102 250, 251 152 201, 221 170 169, 210, 212 117, 259, 260 TABLE OF AUTHORITIES(continued) People v. Rodriguez (1986) 42 Cal.3d 730 People v. Rodriguez (1999) 20 Cal.4th 1 People v. Rogers (2006) 39 Cal.4th 826 People v. Roldan (2005) 35 Cal.4th 730 People v. Rowland (2002) 4 Cal.4th 238 People v. Ruiz (1988) 44 Cal.3d 589 People v. Sanders (1995) 11 Cal.4th 475 People v. Scheid (1997) 16 Cal.4th 1 People v. Schmeck (2005) 37 Cal.4th 240 People v. Seaton (2001) 26 Cal.4th 598 People v. Smith (2003) 30 Cal.4th 581 People v. Smith (2005) 35 Cal.4th 334 People v. Smithey (1999) 20 Cal.4th 936 Page 201 146, 153, 201, 202, 239, 244 94, 112, 113, 130, 261 206, 210-212 244, 247 201, 202 153, 215, 217, 242 145, 146 262 3, 94, 112, 130, 135, 136 97, 128, 267 266, 269 146 XXVI1 TABLE OF AUTHORITIES (continued) People v. Snow (2003) 30 Cal.4th 43 People v. Stanley (1995) 10 Cal.4th 764 People v. Stanley (2006) 39 Cal.4th 913 People v. Stansbury (1995) 9 Cal.4th 824 People v. Steele (2002) 27 Cal.4th 1230 People v. Stewart (2004) 33 Cal.4th 425 People v. Stitely (2005) 35 Cal.4th 514 People v. Tafoya (2007) 42 Cal.4th 147 People v. Taylor (2001) 26 Cal.4th 1155 People v. Terry (1970) 2 Cal.3d 362 People v. Thornton (2007) 41 Cal.4th 391 People v. Toledo (2001) 26 Cal.4th 221 People v. Tuilaepa (1992) 4 Cal.4th 569 XXVIi Page 172, 267 72, 97, 128, 152, 271 76 186, 226 267 96, 100, 104, 107, 108, 117, 270 77, 78, 267 102, 103 209, 215, 266 226 94, 112, 130, 178 228 232, 230, 234 TABLE OF AUTHORITIES(continued) People v. Turner (1990) 50 Cal.3d 668 People v. Turner (1994) 8 Cal.4th 137 People v. Wade (1995) 39 Cal.App.4th 1487 People v. Welch (1999) 20 Cal.4th 701 People v. Wharton (1991) 53 Cal.3d 522 People v. Williams (1997) 16 Cal.4th 153 People v. Williams (2006) 40 Cal.4th 287 People v. Wilson (2005) 36 Cal.4th 309 People v. Wright (1988) 45 Cal.3d 1126 People v. Wright (1990) 52 Cal.3d 367 People v. Young (2005) 34 Cal.4th 1149 People v. Zambrano (2007) 41 Cal.4th 1082 People v. Zapien (1993) 4 Cal.4th 929 XXVIil Page 169 97, 128 169 252, 262, 267, 268 247 153 215 206, 217-219 168 102 266, 268 137, 238, 240, 250 153 TABLE OF AUTHORITIES(continued) Press-Enterprise Co. v. Superior Court of California (1984) 464 U.S. 501 104 S.Ct. 819 78 L.Ed.2d 629 Price v. Superior Court (2001) 25 Cal.4th 1046 Raven v. Deukmejian (1990) 52 Cal.3d 336 Ring v. Arizona (2002) 536 U.S. 584 122 S.Ct. 2428 153 L.Ed.2d 556 Rosales-Lopez v. United States (1981) 451 U.S. 182 101 S.Ct. 1629 68 L.Ed.2d 22 Ross v. Oklahoma (1988) 487 USS. 1 108 S.Ct. 2273 101 L.Ed.2d 80 Schneble v. Florida (1972) 405 US. 427 92 S.Ct. 1056 31 L.Ed.2d 340 Skipper v. South Carolina (1986) 476 USS. 1 106 S.Ct. 1669 90 L.Ed.2d 1 XX1X Page 105 146 162 263, 267 102 102, 187 270 243 TABLE OF AUTHORITIES (continued) Page Strickland v. Washington (1984) 466 U.S. 668 104 S.Ct. 2052 80 L.Ed.2d 674 . 110, 190 Taxpayers to Limit Campaign Spending v. Fair Pol. Practices Com. (1990) 51 Cal.3d 744 163 Thompsony. Altheimer & Gray (7th Cir. 2001) 248 F.3d 621 188 Tuilaepa v. California (1994) 512 U.S. 967 114 S.Ct. 2630 129 L.Ed.2d 750 262, 263 United States v. Haili (9th Cir. 1971) 443 F.2d 1295 271 United States v. Hasting (1983) 461 U.S. 499 103 S.Ct. 1974 76 L.Ed.2d 96 270 United States v. Lane (1986) 474 US. 438 106 S.Ct. 725 88 L.Ed.2d 814 77 United States v. Martinez-Salazar — (2000) 528 U.S. 304 120 S.Ct. 774 145 L.Ed.2d 792 186, 188 United States v. Quintero-Barraza (9th Cir. 1995) 78 F.3d 1314 187 XXX TABLE OF AUTHORITIES (continued) Page Victor v. Nebraska (1994) 511 US. 1 114 S.Ct. 1239 127 L.Ed.2d 583 166 Wainwright v. Witt (1985) 469 US. 412 105 S.Ct. 844 83 L.Ed.2d 841 117, 189 Wiggins v. Smith (2003) 539 U.S. 510 123 S.Ct. 2527 156 L.Ed.2d 471 247 Williams v. Superior Court (1984) 36 Cal.3d 441 77 Witherspoonv. Illinois (1968) 391 U.S. 510 88 S.Ct. 1770 20 L.Ed.2d 776 117, 118 Yoshisato v. Superior Court (1992) 2 Cal4th 978 161-163 Constitutional Provisions California Constitution art I, § 16 185 art. VI, § 13 179 XXXi TABLE OF AUTHORITIES(continued) Page United States Constitution First Amendment 101, 105, 112, 175, 268 Fifth Amendment 101, 111, 175, 185, 204 Sixth Amendment 101, 112, 175, 185, 204, 268 Eighth Amendment 101, 204, 112, 175, 268 Fourteenth Amendment 101, 185, 204, 112, 175, 268 Statutes Code of Civil Procedure § 205, subds. (c) and (d) 103 § 208 103 § 209 105 § 223 103 § 228 118 § 228, subd. (b) 118 § 229 116 § 232 104 Evidence Code § 210 145, 147, 239 § 350 145 § 351 145 § 352 141, 145, 146, 148, 223, 227, 240, 242 § 353, subd. (b) 146 § 355 145 § 496 147 § 1101, subd.(c) 239 Penal Code § 187, subd.(a) 2 § 190.2 161, 163 § 190.2, subd. (a)(3) 2 § 190.2, subds. (a)(3), (a)(17) 161 § 190.2, subd. (a)(17) 2 § 190.3 243, 249, 251 § 190.3, subd.(a) 210 § 190.3, subd. (b) 223, XXXil 233 TABLE OF AUTHORITIES(continued) § 190.3, factor (b) § 190.3, factor (b)(2) § 190.4, subd.(e) § 205 § 209, subd. (b) § 211 § 240 § 246 § 459 § 496 § 594, subd.(b)(2) § 664/187 § 664/211 § 954 § 995 § 1111 § 1181, subd.(7) § 4502 § 4532, subd. (b) § 12022, subd.(a) § 12022, subd. (a)(1) § 12022.7 Court Rules Cal. Rules of Court rule 14(a)(1)(C) rule 8.204(a)(1)(B) Other Authorities CALJIC No. 1.00 No. 2.01 No. 2.11 No. 2.21.2 XXXiil Page 222, 224, 230, 263 222 5 2 2, 4, 81 2,5, 81, 154 233, 234 2, N N N P N W Y 74 4 147, 153, 176 5 232 224 5 3,4 3 3 72,97, 128, 271 167, 168 167, 168 167, 168, 169 167, 168 TABLE OF AUTHORITIES (continued) Page No.2.22 167, 168 No,2.27 . 167, 168 No. 2.60 167, 168 No. 2.61 167, 168 -No. 2.90 | 164-167, 170-172, 181 No.2.91 168 No. 3.01 155, 173-175 No.3.02 172-175 No.3.10 175, 176 No. 3.11 175, 176 No. 3.12 175, 176 No. 3.16 175, 176 No.3.18 "175, 176 Nos. 6.00-6.02 224, 227, 228 No.8.80.1 173, 175 No.8.84 256 No.8.841 221, 256, 258 No.8.85 224, 256, 258, 262 No.8.86 224 No.8.87 165, 263, 264 No. 8.88 221, 255, 256 No. 8.81.17 173, 174 No. 17.02 175, 177, 180, 181 No. 17.40 253 John H. Blume,“Ten Years ofPayne: Victim Impact Evidence in Capital Cases” 88 Cornell Law Review 257 (2003) 209 Proposition 114 161-163 Proposition 115 85, 161-164 Webster's Third New International Dictionary, Unabridged (2002) 93 XXXIV IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, $055856 Vv. ORLANDO GENE ROMERO & CHRISTOPHER | “2he3t SELF, Defendants and Appellants. INTRODUCTION From October 8 through December 7, 1992, appellants Orlando Gene Romero and Christopher Self engagedin a violent, and often murderous, crime spree in Riverside County. Either working together, alone, or with cohorts, appellants kidnaped,carjacked, robbed, and/orshot nearly a dozen victims, who were mostly chosen at random orfor no discernable reason. The intensity of their crime spree increased asit progressed, andultimately, appellants callously murdered three young men, Joey Mans, Timothy Jones, and Jose Aragon,in addition to attempting to take the lives of several other victims. Duringtrial, the prosecution presented overwhelming evidence establishing appellants’ guilt, including credible eyewitness identifications, considerable physical evidence obtained from both the crime scenes and from searches of appellants’ homes and vehicles, appellants’ damaging police interviews, and the corroborated testimony of Jose Munoz, an accomplice to the crimes. On appeal, appellants raise over forty claimsof error challenging their convictions and sentences. All of appellants’ allegations of error we either invited, waived,lack merit, or harmless. Accordingly, this Court should affirm the judgments in their entirety. STATEMENT OF THE CASE On April 26, 1995,the Riverside County Distri ct Attorney filed a 23- count Amended Information charging appell ant Christopher Self and his brother, appellant Orlando Gene Romero, with various crimes arising out of their two-month crimespree,as follows: the Octo ber 12, 1992, murders ofJoey Mans and Timothy Jones (Counts I & II; Pen. Code, § 187, subd. (a)) with special circumstances ofmurder committed dur ing the commission ofrobbery (Pen. Code, § 190.2, subd. (a)(17)) and the comm ission of multiple murders (Pen. Code, § 190.2, subd. (a)(3)); the Novemb er 25, 1992, murder of Jose Aragon (CountIIT; Pen. Code, § 187, subd. (a)) with special circumstances of murder committed during the commission ofrob bery (Pen. Code, § 190.2, subd. (a)(17)) and the commission of multiple murder s (Pen. Code, § 190.2, subd. (a)(3)); the October 8, 1992, robbery of Willi am Meredith (Count IV; Pen. Code, § 211); the October 23, 1992, attempted mu rder ofKen Mills, aggravated mayhem of Ken Mills, and attempted robbery o f Ken Mills and Vicky Ewy (Counts V, VI, & VII; Pen. Code, §§ 664/18 7, 205, & 664/211); the October 23, 1992, shooting at an occupied motor vehicle [occupied by Ken Mills and Vicky Ewy] (Count VIII; Pen. Code, § 246); the October 26, 1992, attempted murders of Paulita Williams and John Doe/“Pint ” [subsequently identified as Randolph Rankins](Counts Ix & X; Pen. Code, § 664/187); the November14, 1992, burglary and aggravated vandalism of Magn oliaInteriors (Counts X1 & XII; Pen. Code, §§ 459 & 594, subd. (b)(2) ); the November 18, 1992, kidnaping and robbery of Alfred Steenblock (Co unts XIII & XIV; Pen. Code, §§ 209, subd. (b), & 211); the November20, 199 2, robbery of Albert Knoefler (Count XV;Pen. Code, § 211); the November 21, 1992, robbery of Jerry Mills, Sr., and Jerry Mills, Jr. (Count XVI; Pen. Code, § 211); receiving stolen — property from November21, 1992, through Nove mber 17, 1992 [.22 Ruger handgun, .45 Colt handgun, and tackle box ofammu nition] (Count XVI; Pen. Code, § 496); and the December7, 1992, robber y of Roger Beliveau (Count XXIII; Pen. Code, § 211).” In addition, for Count s I through X, XIII through XVI, and XXIII, the information alleged that a principal was armed with a firearm within the meaning of Penal Code sectio n 12022, subdivision (a)(1). (4 CT 821-834.) The information separately charged Self with the N ovember30, 1992, attempted murder and robbery ofJohn Feltenberger (Counts XVIII & XIX;Pen. Code, §§ 664/187 & 211), and alleged during the course of this crime, a principal was armed with a firearm (Pen. Code,§ 1 2022, subd. (a)(1)) and Self inflicted great bodily injury upon the victim (Pen. Code, § 12022.7). The 1. The amended information also charged Daniel Chavez as a co- defendant on several counts, but the trial court severed Chavez’s case before trial. (4 CT 903, 907-909, 917 [Chavez severance discussed]; 2 RT 88.) In their openingbriefs, both appellants inform this Cou rt of Chavez’s subsequent conviction and sentencing in a separate, non-capit al case. (Romero AOB [“RAOB”] at 7; Self AOB [“SAOB”] at 6, 31.) In doing so, appellants reference Chavez’s trial transcripts, which are notp art of appellants’ record on appeal. Appellants have not moved to augment th e record with the Chavez transcripts, nor have they asked this Court to take judicial notice of the facts contained in the Chavez record. Consequently, this Court should not consider this information on appeal. (Cal. Rules of Court, r ule 14(a)(1)(C); People v. Seaton (2001) 26 Cal.4th 598, 634; People v. Fry e (1998) 18 Cal.4th 894, 1030,fn. 5; In re Hochberg (1970) 2 Cal.3d 870, 8 75.) Although not namedin the Amended Information, Jose Munoz was originally charged as a fourth co-defendantin vari ous felony complaints. (1 Supplemental CT [“SCT”] 1-3,1 CT 32-35, 52-61, 95-116, 143-154.) Munoz entered into a plea agreement with the District Att orney’s office in which he agreed to testify at appellants’ trial and plead guil ty to three counts of first degree murder, one count of attempted premeditate d murder, three counts of robbery, and one count of attempted robbery. (2 C T 180-181; 45 3° SCT 12906-12910.) Munozlater pled guilty to these crime s and received a sentence of 51-years-to-life in prison,in accordance with the term softhe plea agreement. (45 3° SCT 13154-13156.) information also alleged that Self inflicted great bodil y injury upon Ken Mills in Counts V through VIII (Pen. Code, § 12022.7). (4 C T 825-827, 83 1-832.) The information separately charged Romero with: r eceiving stolen property [an ammunition pouch] from November30, 1 992, through December 17, 1992 (Count XX; Pen. Code, § 496); and the D ecember5, 1992, kidnaping and robbery of Robert Greer (Counts XXI & XXII; Pen . Code, §§ 209, subd. (b), & 211). In addition, for Counts XX] and XXII, the i nformation alleged that a principal was armed with a firearm within the meaning ofPenal Code section 12022, subdivision (a)(1). (4 CT 832-834). On September 15, 1995, the trial court ordered se parate juries for Romero and Self, andtrial by jury commenced on Dece mber 11, 1995. (4 CT 917-918; 5 CT 979-980.) Subsequently, Self moved p ursuant to Penal Code section 995 to dismiss Counts IV through VI, [x throug h XII, XV, and XXIII, as well as the Penal Code section 12022.7 enhancem ents on Counts V, VII, and VIII. The prosecution conceded Selt’s motion as to Coun t XXIII. (5 CT 983- 1006.) On January 11, 1996, the court dismissed Count X XIII as to Self, kept Romeroas the sole named defendant in Count XXIII , and denied the remainder of Self’s Penal Code section 995 motion. (5 CT 10 71-1072, 1080-1081.) Following the determination of numerous otherpretria l motions,” the juries were sworn and opening statements were made on Ma rch 20, 1996. (6 CT 1233, 1237.) On April 25, 1996,the jury foundSelfguilty as charged and f ound true all special circumstances and sentence enhancementalle gations. (8 CT 1715- 1723, 1733-1785.) On April 29, 1996,the jury found Ro mero not guilty as to the kidnaping and robbery ofAlfred Steenblock (Count XI II, Pen. Code, § 209, 2. The specific details of the various motions in both th e guilt and penalty phase will be fully set forth and detailed in the briefi ng, as necessary, to respondto the issues raised by Self and Romero. 4 subd. (b); Count XIV, Pen. Code, § 211), but returned guilty verdicts on the remaining charges and found true all special circumstances and sentence enhancementallegations. (8 CT 1724-1732, 1786-1835.) On May 6, 1996, the penalty phase began, and the juries returned verdicts of death on May 28, 1996. (8 CT 1881-1882, 1961; 9 CT 2025-2030, 2086E-2086G.) On August28, 1996, the court denied appellants’ motions under Penal Code sections 190.4, subdivision (e), and 1181, subdivision (7), declined to modify the verdict or grant a new trial, and sentenced appellants to death on each ofthe murder counts. (Counts J - IIT; 9 CT 2148, 2157, 2164-2173.) The court also sentenced appellants to consecutive one-year terms on the murder counts’ Penal Codesection 12022, subdivision (a), enhancements. (9 CT 2148- 2149, 2157-2158, 2181-2184.) With regard to the remaining non-capital counts, the trial court sentenced Self to five life terms, plus 21 years, and Romero to fourlife terms, plus 15 years and 8 months, imprisonment. (9 CT 2148-2154, 2157-2163; 45 3° SCT 13097-13101, 13140-13146, 13161- 13164C.) | This appeal is automatic. STATEMENT OF FACTS Guilt Phase In the fall and early winter of 1992, appellants ChristopherSelf, then 18 years old, and Orlando Gene Romero, then 21 years old, lived with their maternal grandmother on Baily Streetin Perris, which wasalso near the home of their mother andstepfather, Maria and Philip Self.” (37 RT 5586; 39 RT 3. Appellants are brothers and share the same mother and father, but at somepoint, Self legally changed his last name from Romeroto his stepfather’s last name ofSelf. (45 3 SCT 12942, 13053.) 5 5880-5881; 42 RT 6403-6405, 6409; 45 3 SCT 12930, 12960, 13054.) In September 1992, appellants met Jose Munoz, who recently moved to Perris from San Diego andlived with his sister on nearby Bonham Street.’ (37 RT 5574-5575; 39 RT 5878-5881; 40 RT 6049-6050.) Munoz, then 21 years old, left San Diego in an attempt to end his drug use and to get away from local police.” (37 RT 5573-5575, 5608; 40 RT 6049-6053.) After their meeting in the early fall, appellants and Munoz socialized regularly and used alcohol and crystal methamphetamine together. (34 RT 5253-5259; 39 RT 5936, 5939- 5940; 40 RT 6048-6049,6117-6118, 6122, 6141, 6155-6156, 6237;2 3" SCT 298-299, 324-326; 45 3° SCT 12924, 12935, 12964, 13058.) Daniel Chavez, a boyfriend of Munoz’s cousin, also lived at Munoz’s sister’s house and likewise became acquainted with Self and Romero. (39 RT 5894, 5898;2 3" SCT 279, 297.) Atthe outsetoftheir crime spree, appellants possessed a sawed-off semi- automatic Remington.22 caliberrifle anda sawed-off “single-shot” .22 caliber rifle. Self purchased the Remington in early September duringa trip to San Diego with Munoz. The Remington was designed as a semi-automatic, but due to a malfunction, a new round would notload into the chamber automatically after firing unless the weapon was aimed upwards. Self and Munoz knew about the malfunctionat the time ofpurchase, although it appears Romero did not know,atleast initially. The second weapon,referred to during testimony 4. Munoz’s sister was also friends with Romero’s girlfriend, Sonia Alvarez. (39 RT 5896, 5951.) 5. In San Diego, Munoz used crystal methamphetamine on a regular basis and stole cars with friends. He and hisfriendstargeted cars left by sailors as they went out to sea, knowing it would be months before the cars were reported stolen. He stopped stealing cars several months before moving to Perris, but still used drugs heavily. Although he abstained from methamphetamine for a few weeksafter his moveto Perris, he quickly resumed its use. (37 RT 5608-5610; 40 RT 6049-6053, 6056; 41 RT 6284-6285.) 6 at trial as the “single-shot,” also malfunctioned. In orderto re-loadthesingle- shot, the user hadto pry the action back with a knife or other tool and manually place a roundin the chamber. The single-shot often misfired, and when it did work, the empty casing needed to be removed manually. (39 RT 5883-5884, 5912-5913; 40 RT 6174-6177, 6183-6185; 2 3% SCT 281, 293; 45 3 SCT 13044-13045.) Asfor vehicles, Romerooften drovehis girlfriend Sonia’s car, a Dodge Colt, and Selfowned an Oldsmobile, which he bought with insurance proceeds he received on his 18" birthday. (32 RT 5044-5047; 37 RT 5676-5679, 39 RT 5882, 5896, 5927, 5936, 5955, 5957-5958, 5976-5977; 42 RT 6406-6408; 45 3 SCT 12929-12931, 12943, 12955.) Robbery Of William Meredith, October 8, 1992 (Count IV) In the late evening of October8, 1992, Self, Romero, and Munoz were driving aroundin Self’s car, looking for an “easy target” to rob or carjack. At approximately 10:30 p.m., they came upon William Meredith’s red 1991 Nissan Pathfinder, which was parked near the Sam’s Club on DayStreet in Moreno Valley. Meredith wassitting in the driver’s seat and another man wasin the front passenger’s seat. The passenger’s white compact car was parked next to the Pathfinder. Romero, who was driving, parked Self’s car behind the Pathfinder, and then he andSelf exited the vehicle, each armed with one ofthe .22 rifles. Munozstayed behindin Self’s car. (32 RT 5018-5021; 39 RT 5881- 5887.) Romero approachedthe Pathfinder’s driver’s side and pointed his gun at Meredith’s face. Romero ordered Meredith to turn off the car, come around to the front of the vehicle, and empty his pockets on the hood. Scared, Meredith exited the Pathfinder, emptied his pockets, and placed his wallet and money clip containing $30 onto the hood. Romero then demanded that Meredith drop his pants around his ankles, step behind a nearby guardrail, and lie down until appellants left the scene. Meredith complied. Likewise,Self pointed his weaponat the passenger and ordered him out of the vehicle and onto the ground. Self attemptedto start the compactcar nextto the Pathfinder, but it would not turn over, so he fled with Munozin his own car, while Romero madeoffwith the Pathfinder. (32 RT 5020-5024; 39 RT 5887-5889; 2 3" SCT 315-317; 45 3 SCT 13037.) Whenappellants and Munozreturnedto Self’s house, they rammaged through Meredith’s wallet and found a PIN to one of his Visa cards. They initially used the card to buygas, and later, Munoz, accompanied by Chavez, used the card to make two $100 withdrawals from an ATM. Munoz withdrew a total of $200, but he told the others he only withdrew $100. The mensplit the disclosed $100 four-ways, and Munoz pocketed the undisclosed $100 for himself. As for the Pathfinder, appellants stripped several parts, took it off- roading, and then pushed it down an embankmentin a rural area known as “Cadillac Hill.” Police later recovered the vehicle, which was completely totaled. (32 RT 5026-5030, 5064-5071; 33 RT 5084-5088; 39 RT 5889-5894.) During his interview with police, Romero admitted to carjacking Meredith and his account of the crime was consistent with that of Munoz and Meredith’ (2 3 SCT 315-317.) Police investigators also recovered a part from Meredith’s Pathfinder and a receipt from one of the ATM transactions inside Self’s car.” (32 RT 5035-5038, 5041-5042, 5049-5051, 5059-5060.) 6. The Romero jury heard Romero’s taped police interview (38 RT 5864-5865; 2 3% SCT 275-328), the Self jury heard Self?s taped police interview (43 RT 6607; 45 3SCT 13053-13082), and both juries heard Munoz’staped statementto police (41 RT 6349; 42 RT 6367, 6369, 6372; 45 3 SCT 12911-13052.) 7. A boxin the frontseat of Self’s car also contained 261 rounds of .22 caliber ammunition, and a .22 caliber expended shell casing. (32 RT 5038- 8 Murders Of Joey Mans And Timothy Jones, October 12, 1992 (Counts I & ID) Four dayslater, on the night of October11, 1992, Self, Romero, Munoz, and Chavez decided to “go out stealing again,” taking along the same .22 caliberrifles used in the Meredith robberyjust a few days prior. Romero drove the groupin his girlfriend Sonia Alvarez’s Dodge Colt. Munoz made masks for everyone from a pair ofhis sister’s stretch pants, but only Munoz ended up wearing the disguise. As they drove aroundthat evening looking fora victim, Romero announcedhe hada feeling someone wasgoingto die that night. He said it could be oneofthem,but morethan likely it would be somebodyelse.” (39 RT 5895-5901; 45 3 SCT 12970-12971.) After driving around all night without finding an agreed-uponvictim, Romero suggested watching the sunriseat a hilltop in the Lake Mathewsarea. It was now in the early morning hours ofOctober 12, 1992. Whentheyarrived at the hilltop, the group spotted two men,best friends Joey Mans and Timothy Jones, in an older-model Subaru station wagon. Romero proposed robbing them and Self agreed. Atfirst, Munoz and Chavez disagreed with Romero’s plan because the Subaru was old and inexpensive, and they did notbelieve Mansand Jones had anything worth taking. But in the end, Munoz and Chavez decided to participate. (33 RT 5184-5185; 38 RT 5719; 39 RT 5898-5903; 45 3 SCT 12971.) Romero, armed with the Remington .22, approached Mansatthe driver’s side, and Munoz, armed with the single-shot .22 and a boxfull ofroundsin his pocket, approached Jones at the passenger’s side of the Subaru. Romero pointed his weapon at Mans,ordered him outofthe vehicle, and had him drop 5039.) 8. In his interview with police, Romero said he did not recall making such a statement. (2 3% SCT 283-284.) 9 9 his pants, telling him, “This is so you don’t run.” Romero then lit Mans a cigarette, put it in his mouth, and advised him to “relax,” assuring him “everything was going to beall right.” Meanwhile, Munozordered Jones out the vehicle andtold him to handoverhis wallet, which Munozrecalled having somesort of emblem on it. After Jones complied, Munoz ordered Jonesto lie down, handed Chavezthe single-shot .22, and began examiningthe wallet and the inside of the vehicle. (39 RT 5903-5908; 40 RT 6087-6088; 42 RT 6539; 45 3° SCT 12972.) Munoz took everything out ofJones’ wallet and, not finding any money, dropped the wallet and its contents back on the vehicle seat. He then began to search the rest ofthe Subaru. To openthe trunk, he used Mans’ key ring, which had a unique shark bottle openerattached to it. Munoz did not find much worth taking in the Subaru, but he did grab a box containing some speakers,leather boots, cologne, paperwork, and pornographic magazines. (33 RT 5185-5186; 39 RT 5907-5910, 5922; 45 3° SCT 12972-12973, 13048-13050.) While Munoz scoured the vehicle, Romero ordered Mansto lie down next to Jones and begantelling Chavez to “shoot.” Both Romero and Chavez had their weapons pointed down toward the victims. Thinking Romero was just trying to scare Mans and Jones, Munoz stayed nearthe car but told Chavez, “Don’t shoot.” Immediately thereafter, Romero shot Mansin the back, killing him. Romerothentried to shoot Jones, but because the Remington .22 wasstill pointed downwards”, a new round did not load into the chamber and all Romero heard wasa “click” after he pulled the trigger. Romero pulled the 9. As previously discussed, the Remington was designed as a semi- automatic, but due to a malfunction, a new round would not load into the chamberautomatically afterfiring unless the weapon was aimed upwards. Self and Munoz knew about the malfunction at the time of its purchase in San Diego, but it appears Romero did not knowthis at least at the time of the murders of Mansand Jones. 10 trigger again, butagain,it misfired. (39 RT 5910-5913; 40 RT 6089-6095; 45 3 SCT 12973-12974.) Seeing an opportunity for escape, Jones got up and took off running down the hill. Romero and Self told Chavez to shoot. Chavez fired and apparently missed, so Self and Romero chased after Jones downthe hill. Romerostill had the Remington .22, and Self was unarmed. (39 RT 5914- 5915; 45 3° SCT 12974, 12977.) While Romero and Self chased Jones, Munoz approached Mans’ body. Believing Romero had only fired a warning shot and that Manswasstill alive, Munozattemptedto reassure him. When Mans did not respond, Munoz touched him on the back and discovered the bullet wound. Realizing Romero shot Mans, Munoz “panicked.” (39 RT 5915-5917; 40 RT 6101-6102; 45 3° SCT 12974, 12978.) Munoz heardat least two shots from downthehill, and after twoto three minutes, Romero returned to the hilltop unarmed and told Munozto drive. Munoz refused, so Chavez got in the driver’s seat. Less than a minute later, Self returned, holding the Remington. As they were driving away, Romero looked back toward Mans’ body andsaid he thought he saw Mans move. Romero wanted to return and shoot Mans again, but Munoztold Chavez to keep driving. Romero remarkedthat if they ever were arrested, it would be Munoz’sfault becausethe victim survived. As they kept driving downthehill, Munozlooked through the box he obtained from the Subaru and threw the victims’ keys andleather boots out of the driver’s side window of the car. (33 RT 5186-5187; 39 RT 5917-5922; 40 RT 6095-6098; 45 3 SCT 12977- 12978.) The group returned to Self and Romero’s grandmother’s house on Baily Street, where they went throughtherest ofthe box. While there, Self described how he caught up with Jones on thehill, beat him down with his fists, and hit 11 him with a “pipe or something” on the head. When Romeroarrived, Self grabbed the Remington .22 from him and put the weaponup to the back of Jones’ head. Because Jones had his hands behindhis neck, Self said he tried to jam the gun through Jones’ fingers to shoot him, but growing tiredofthat, he ended upjust shootingat Jones until he moved his hands and then shot him in the head. (39 RT 5922-5925; 40 RT 6098-6099; 45 3SCT 12975.) The bodies of Mans and Jones were discovered by a Riverside Police Departmenthelicopterlater that afternoon. Mans’ body waslying face-down next to the Subaru, and he waspartially clothed from the waist up. Police found a cigarette lighter clutched in his hand and a burntcigarette just next to his hand. Mans had a visible gunshot wound to his back, and due to the presence of gunshot residue found on his shirt, it appeared to be a contact wound, i.e., it appeared the muzzle of the weapon wasfired close to or in contact with Mans’ body. (32 RT 5089-5090; 33 RT 5100-5104.) Police found one .22 caliber Federal-brand shell casing near Mans’ body,as well as several other casings of varying calibers” in the hilltop area, some of which were discolored and appeared to have been there for awhile. (33 RT 5107- 5108, 5126, 5166-5171.) Police discovered Jones’ fully-clothed body approximately 150 yards away from the Subaru,lying face-down on arocky hill in very uneventerrain. Joneshad horizontal scrapes and abrasionson his back abovethebeltline, one bullet woundtotheleft side of his head, and two additionalbullet holes to the rear of the neck area. Black smudges found aroundthe neck area indicated Jones was shot at extremely close range, with the barrel of the gun either touching orclose to touchingthe back ofhis neck. (33 RT 5133-5135.) Police found one expended .22 caliber Federal-brandshell casing next to Jones’ body, 10. Police found two additional .22 caliber casings, three .45 caliber casings, and twelve .44 caliber casings. (33 RT 5107-5108, 5137-5139.) 12 and another .22 caliber Federal-brandshell casing under Jones’ body. Ballistics tests showedthatthe .22 casings found next to Jones” body werefired from the same semiautomatic weaponasthe .22 casing found near Mans’body. (33 RT 5137-5139, 5144-5145; 43 6582-6583.) Police found several shoe prints with a distinctive circle and diamond pattern both near the vehicle and Mans’ body,at the edge ofthe hilltop area, and just next to Jones’ body. (33 RT 5110-5115, 5135, 5143.) These shoe prints were consistent with the size and sole pattern of the British Knights tennis shoes worn bySelfat the time ofhis arrest. (38 RT 5728-5729, 5733, 5831-5838.) Munoztestified Selfwore these same British Knight tennis shoes during the Mans and Jones murders. (39 RT 5925; 45 3™ SCT 13040.) Police also found several shoe prints at the top of the hill and near Mans’ bodythat were consistent with the size and sole pattern of the Nike Air Jordan tennis shoes recovered from Chavezafter his arrest. (33 RT 5116-5117; 37 RT 5671- 5674; 38 RT 5839-5843.) A tire impression on the hilltop area was consistent with one ofthe fronttires on Alvarez’s Colt. (38 RT 5845-5846.) Onthe front passenger’s seat ofthe Subaru, officers found wallet-sized paperwork andidentification belonging to Jones. Mans’identification card was located on the driver’s seat, and his shark bottle-opener was also found in the vehicle. (33 RT 5120-5122, 5174-5175, 5186-5188.) Leading down the road off the hilltop, police recovered the Subaru keys and leather boots, both belonging to Mans, that Munoztold police he tossed out the windowafter the murders. (33 RT 5171-5174, 5186-5187.) An autopsy on Mans’ body revealed he died from a single gunshot wound,and the presence of gunpowderon the skin indicated it was a contact wound. The bullet entered the left side of Mans’ back, perforated his spinal column,lacerated his spinal cord, ripped through his right lung and heart, and cameto rest in the right front chest area, where the coroner recovered a .22 13 caliber projectile’ This single gunshot woundlikely paralyzed Mans immediately andkilled him in a matter ofbetween five and twenty minutes. (38 RT 5722-5723, 5740-5745.) An autopsy on Jones’ body revealed he died from multiple gunshot wounds,including twoto the head, oneto the neck, and one to the shoulder. (38 RT 5745, 5763.) In addition to the gunshot wounds, Jones’ body had a numberof abrasions and contusions on the lower back abovethebelt line, the left hip area, the palm ofthe right hand,andthe right wrist. The abrasions appeared to have occurredat or about the time of death and were consistent with running throughthickets and tumbling down a rocky or rough area. (38 RT 5745-5749.) In the first woundto Jones’ skull, the bullet entered his head behind the left ear and embeddeditself in thick skull bone, where the coroner recovered a .22 caliber projectile. Although the bullet did not penetrate Jones’ brain and the wound wasnotnecessarily fatal, a large percentage ofpeople wouldlikely die from such a skull fracture. There was gunpowder on the jacket collar adjacentto this wound, but no sooton the skin itself. (38 RT 5727, 5750, 5753, 5755.) In the second woundto the head,the bullet entered two inches up and two inches behind theleft ear, tore through Jones’ brain and brain stem, and lodged in the bone above his right eye, where the coroner recovered a .22. caliber projectile. This wound would have been fatal becauseit disrupted the 11. In his opening brief, Romerostates, “Mans waskilled by a single bullet to the back, even though it apparently was of only .22 caliber.” (RAOB 19.) Although Romero chose to shoot Manswith “only”a .22 caliber weapon, Romero also chose to shoot Mansnearhis major,life-sustaining organs, where ultimately the bullet ripped a hole through Mans’heart, halting his body’s ability to pump blood and endinghislife. 14 brain to such large extentit could no longer function. A hole in Jones’jacket corresponded with the wound’s entrance area. (38 RT 5725-5726, 5756-5759.) In the woundto the neck, a bullet entered the back of Jones’ neck and exited on the neck’s right side. Gunpowder surroundedthe entrance to the wound, which indicated the weapon wasfired in contact with or at close range to Jones’ neck. This wound would not have beenfatal. In the woundto the shoulder,the bullet passed through Jones’ jacket, entered the back side of his left shoulder, and exited the front side of the left shoulder. This wound probably wasnot fatal with medicalattention. There was gunpowdernearthe correspondingbullet hole on Jones’ jacket, but none on the skin itself. (38 RT 5759-5763.) In his subsequent interview with police, Romero admitted robbing Mans and Jones, denied shooting either of them, and painted Chavez as the primary instigator and aggressor. However, Romero’sstory had inherent contradictions and/or directly contradicted the evidence. (2 3" SCT 276-299.) Initially, Romero claimed Munoz ordered him to shoot Mans, Munoz shot Mansafter Romerorefused, and then Chavez grabbed Romero’s gun to chase a fleeing Jones. (2 3SCT 278.) But later on, Romero said either “Danny [Chavez] or Jose [Munoz]”told him to shoot Mans, and whenherefused, it was Chavez who took his gun (the single-shot) and “popped the one dude [Mans] in the back.” (2 3% SCT 288-290, 292.) Romeroalso claimed that he and not Munoz confronted the passenger (Jones), patted him down,anddid notfind a 12. Romero’s claim that Chavez used the single-shot to kill Mans also seemedto contradictthe ballistics evidence, which established thatthe three .22 casings found near Mans’ and Jones’ bodies all came from the same semi- automatic weapon. (43 RT 6583.) The Remington was a semi-automaticrifle, while the “single-shot”was,as indicated by its name and the description given by Munozand Romero, not semi-automatic. (39 RT 5883-5884, 5912-5913; 40 RT 6174-6177, 6183-6185; 2 3% SCT 281, 293; 45 3 SCT 13044-13045.) 15 wallet or anything else on him. Romero asserted Munoz dealt with the driver (Mans). (2 3% SCT 277, 285-288.) But the evidence showedthat Jones had a wallet on him and this wallet was opened and emptied. Likewise, the evidence indicated it was Munoz whodealt with Jones and his wallet because Munoz was ableto specifically describe the wallet andits contents. (33 RT 5120-5122; 39 RT 5903-5908; 42 RT 6539; 45 3SCT 12972.) Romero further asserted that Munoz, Chavez, and Self chased Jones downthe hill while he (Romero) stayed up on thehill to make sure Mans (who had already been shot) did not go anywhere. (2 3 SCT 290.) While Romero admitted that oneofthe shoe prints found onthehill by Jones’ body “look[ed] like” his shoes, he claimed he did not remember what he was wearing that night and someoneelse must have been wearinghis shoes because they all wore each other’s clothes on a regularbasis. (2 3" SCT 290-292, 297.) Romero also did not remember anyone giving Mansa cigarette, nor did herecall the keys or boots being thrownout the window as they madetheir way down the hill after the murders. (2 3SCT 288, 298.) Attempted Murder Of Kenneth Mills And Related Crimes, October 23, 1992 (Counts V, VI, VII, & VII) Around midnight on October 22, 1992, Kenneth Mills and his girlfriend Vicky Ewy weredriving along Moreno Beach Drive in Moreno Valley, on their way to watch a lightning storm. Mills was driving Ewy’s red Nissan and Ewy wasin the front passenger’s seat. Appellants and Munozwerealso driving on Moreno Beach Drive that evening, looking for a car to “jack.” Romero was driving Alvarez’s Dodge Colt, Munoz wasin the front passenger’s seat, and Self was in the rear. For weapons, they broughtalong the .22 caliber single- shot and a .20-gauge shotgun Self recently purchased from a neighborhood acquaintance. The shotgun was a single-shot, New Englandfirearms brand, 16 and sawedoff in front and in back. (33 RT 5191-5192; 39 RT 5926-5930; 45 3% SCT 12933.) After appellants and Munoz spotted Ewy’s red Nissan coming towards them, Romero made a U-turn and begandriving in front of Mills. At the next stop sign, Romero pulled hiscar to the right as ifhe were going to makea right turn, but after Mills pulled up to the stop sign and continued goingstraight, Romero followed him, immediately illuminating his high beam headlights. At the next stop sign, Mills plannedto takea rolling stop and turn rightto seeifthe car kept following him, but appellants hadotherplansfor him. (33 RT 5192- 5195; 39 RT 5930-5931, 5935.) As the twocars reached the second stop sign, Mills looked overhisleft hand shoulder, saw Romero’s car, and a person pointing a gun at him through the open passenger window. No more than a secondlater, he saw a muzzle flash, heard a pop,and felt something hit him across the face. Unableto see out of his right eye and barely able to see outof his left eye, Mills stepped on the accelerator andfish-tailed around the corner, while Ewy madea frantic prayer. Romero followed them around the corner and continued to follow them after Mills made anotherleft turn in an attempt to evade his attackers. Finally, after Mills turned into a golf cart path (thinking it was a driveway), Romero ceased his pursuit. (33 RT 5195-5198, 39 RT 5931-5934.) Whenpolice arrived at the scene, Mills had blood on his face and was holding a rag to his eye. He wasin considerable pain, and Ewy wasdistraught and crying. At the hospital, Mills told officers he saw a man from the waist up pointing a gun at him, that the muzzle blast seemed to come from the front passenger window,andthere wereat least two occupants, a driver anda front passenger,in the attackers’ car, but he could notidentify or describe anyofthe occupants. Asa result of the shotgunblast, Mills lost his right eye, portions of 17 his upper and lowerlids were blown off, and he suffered permanentscarring to his face. (33 RT 5196, 5199-5201, 5215-5217.) Police collected .20-gauge Remington-brand shotgun wadding from the floorboard of Ewy’s car, as well as lead shotgunpellet fragments from the passenger door and passenger floor. There were pellet strike marks on the upholstery ofthe passenger door,butno strike marks on the head liner or inside roof. The driver’s side window wasshattered, with a hole in the top ofthe window wherethe shotentered the vehicle. The shot exited through the lower part of the passenger window,nearthe door frame and towardsthe front’ (33 RT 5207-5210; 5219-5224; 38 RT 5825-5826.) A later search of Alvarez’s Colt uncovered shotgun pellets in the rear seat, and a briefcase in the trunk containing several shotgun shells. (34 RT 5324-5325; 37 RT 5687-5697.) The inside of another briefcase in the trunk contained Self’s first name “Chris” written in block-letter graffiti. (37 RT 5687-5688.) In his statement to police and during his testimony at trial, Munoz recounted how he, Self, and Romero chose Mills and Ewy “at random” and intendedto carjack them. Munoztestified that when the group pulled up next to Mills, Romero told Munozto “shoot ‘em.” Munozpointed the .22 caliber single-shot out ofthe passenger side window towardshis intended victims, but he “froze” and never fired the weapon. Instead, Self leaned out of the rear driver’s side windowandfired his .20-gauge shotgun overthe top of the Colt, blasting out the Nissan’s window. Munoz admitted that Mills probably saw him aim a weapon at him through the front passenger window,butinsisted 13. Mills pushed out the shattered passenger windowafter he stopped the vehicle on the golf cart path, but before he did so,there wasa hole in the passenger window about twoorthree inches up from the door frame and about two-thirds forward. (33 RT 5208-5210.) 18 Mills was mistaken that the actual blast came from Munoz’s weapon.” When Mills drove away, Romerosaid they were going to “take him out” andtold Munozto shootas they gave pursuit. Munoz admitted he fired the .22 single- shot toward the Nissan. Munozsaid they pursued Mills and Ewy for quite a distance until their victims pulled into an apartment complex and began honking their horn. (39 RT 5930-5935; 45 3 SCT 12992, 13010-13027.) In Romero’s statement to police, he admitted driving the Colt that evening, remembered “somebody”shotat Mills, and described pursuing Mills and Ewyuntil they drove into the apartment complex. Romerobelieved their intent was to carjack Mills and Ewy, but he “wasn’t sure.” Healso believed Munoz was “probably”in the Colt’s rear seat with the shotgun and could not rememberif either Self or Chavez was in front seat. Romero said he was not sure Mills was hurt because he kept driving, and someonein the Colt told him to chase Mills because “you can’t leave something like that.” Romero claimed he was “scared” and stopped the chase once the victims pulled into an apartment complex andstarted honking the horn. (2 3" SCT 313-315.) Attempted Murders Of Paulita Williams And Randolph Rankins, October 26, 1992 (Counts IX & X) In the early morning hours of October 26, 1992, Self, Romero, and Munoz drove to a neighbor’s house in the Colt looking to purchase methamphetamine. The neighbor introduced appellants and Munoz to Randolph Rankins,a.k.a. “Pint” or “Half-Pint,” who acted as arunner for drug 14. He also insisted that Chavez would back up his story because Romero told Chavez how Self shot Mills by leaning out the window. (45 3 SCT 13023, 13025.) 19 dealers and knew where to buy methamphetamine.’ Rankins hoppedin the back seat ofthe Colt with Munoz, while Romero drove andSelfsat in the front passengerseat. They went to a few houses looking for drugs, and at the second house, Rankins was given $20 and returned with rock cocaine. Romero was very upset that Rankins ‘returned with rock cocaine instead of methamphetamine, although Munoz seemedwillingto take the drugs. Rankins told them he could not take the drugs back and refused to give a refund. Romeroangrily told Rankins he would be seeing him later. Rankins then took his cut of the drugs and left in a white Volkswagen Scirocco with Paulita Williams, a woman he met inside the house. Rankins and Williams subsequently smoked Rankins’ share ofthe rock cocaine. (34 RT 5227-5229, 5253-5260, 5271; 39 RT 5935-5941.) Appellants and Munoz returned to appellants’ grandmother’s house where they confirmed that Rankins had supplied them with rock cocaine and not methamphetamine. Romero wasfurious. He told Self and Munoz,“We’re going to smashit up, we’re gonnado lines, we’re gonna go looking for him, and either he’s gonnagive us our money back or we’re gonnatake him out.” Self agreed with Romero and seemed “pumped up”about his brother’s plan. After snorting lines of rock cocaine, appellants and Munoz departed in the Colt, looking for Rankins and taking along the .22 caliber single-shot and the .20- gauge shotgun. (39 RT 5939-5940.) After driving around for about 15 minutes, appellants and Munoz spotted Rankins and Williams in the Scirocco driving toward them. Romero 15. Rankins has several prior convictions for mainly drug-related crimes and wasrearrestedjust beforetrial on the charge ofbeing under the influence. He was given a four-month jail sentence, but also risked being returned to prison on a parole violation. In exchange for his truthful testimony at appellants’ trial, the prosecutor agreed to contact his parole agent and ask for reinstatement of his parole with 120 days jail time. (34 RT 5264-5268.) 20 stopped the Colt in front of Williams, got out of the driver’s side, and pointed the single-shot at the Scirocco. Munoz, who was wearing a ski mask,gotout ofthe Colt’s rear seat and stood nearby holding the shotgun. Williams stopped, put her carinto reverse, and proceededto drivein a big circle toward the Colt. Munozthenfired the shotgun at the Scirocco, blowing out the driver’s side windowandhitting Williamsontheleft side ofher back” (34 RT 5230-5231, 5238-5239, 5246-5248, 5261-5262; 39 RT 5941-5943.) Once Munozfired, Rankins jumpedoutof the passenger seat and ran away. Romero hadtherifle pointed at Rankins as he ran away, and Rankins heard three or four more shots fired from behind him. Rankins ran through a field and as shots were fired, he fell down, hoping the shooting would stop. He heard one ofhis attackers say, “We got him down,let’s go finish him off.” Rankins started running again and he heard more shots. Hefinally found his way inside a Dumpster, where he hid for several hours and at one point saw appellants and Munozdrive byin the Colt. (34 RT 5262-5263; 39 RT 5946.) As Rankinsfled, Self approached Williams, who wasstill in the driver’s seat, and began slashing her arm with a knife. Williams was holding her hands up to protect herself and screaming, and Self was laughing and seemed to enjoy stabbing her. Munoztold Self to get out of the way and pointed the shotgun at Williams’ head. Williams was screaming, “Please don’t kill me,” but Munozpulled thetrigger and shot Williams in the face. Beforefiring the shotgun, either MunozorSelftold Williams,“Die, bitch.” (34 RT 5231, 5239- 5242, 5249-5250; 39 RT 5943-5946.) After Munoz shot her, Williams leaned over in the seat, hoping they would not shoot again. Once appellants and Munozleft the scene, Williams 16. Rankinstestified he believed the Colt’s driver (Romero) shot out the driver’s side window,but Munoztestified he actually shot at the Scirocco first andthat, although Romero hadhisrifle aimedat the Scirocco, Romero told him later that the single-shot had misfired. (34 RT 5261; 39 RT 5941-5943.) 21 drove to a friend’s house for help, fearing she would die from her injuries. Williams survived and suffered a puncturedleft lung, a nine-inch gash to her left arm, a shorter laceration on her palm, a Y-shaped gashto her wrist, deep scarring from shotgunpellets across the top of her shoulder, and a large one- inch wide andsix-inch long scar to her back from more shotgun pellets. The pellets arestill present in the bonesofher shoulder, along her spine, and in her shoulder muscles, causing constant pain. Police responding to the shooting recovered shotgun wadding and a shotgun pluginside the Scirocco,as well as blood-stained glass fragments and vehicle tracksin the shapeofa half-circle at the crime scene. (34 RT 5233-5237, 5294-5295, 5296-5305.) The District Attorney did not know about the Williams shooting until Munoz confessedto the crime during plea negotiations. Munoz admitted he aimed at Williams’ head andthat he intendedto kill her, and at the time of his confession,he actually believed Williams was dead. Munoz claimed hedid not see the effect ofthe shotgun blast because he closed his eyes whenhepulled the trigger, but Self later told him with great amusement that the shotgun blast “splattered her brains all over the windshield.” Munozdid notrecall anyone, including himself, saying “Die, bitch” or anything else before shooting Williams. (39 RT 5946-5947, 6030-6035.) After shooting Williams, appellants and Munoz drove around looking for Rankins, but not finding him, they drove back to Munoz’s sister’s house. Romero and Munoz were panicked that Rankins escaped, but Self seemed relatively unaffected, eating cereal and humming while his brother stood watch outside. Munoz, believing Rankins would seek revenge and “shoot up”his sister’s house, told his sister to leave the house for a few days and informed her of some the group’s criminal activities. (39 RT 5947-5951.) Munoz also 22 obtained the Remington .22 caliberrifle for protection.” (39 RT 5953-5954.) At somepoint, Munoz attempted to modify the Remington .22 to makeitfully automatic, but he was unsuccessful and ultimately made the weapon nearly inoperable” (39 RT 5971-5974; 40 RT 6180; 43 RT 6585-6587;45 3° SCT 13047-13048.) A few dayslater, Romero confronted Munozabouthisdisclosuresto his sister. Munoz’s sister had told Romero’s girlfriend, Sonia Alvarez, about Munoz’s admissions to criminal activities with Self and Romero. Romero warned Munoz that his brother Self wanted to “take him out,” but Romero believed Munoz could “makeit right” bytelling his sister everything he said was a lie. Munoz later told his sister that everything he said wastrue but she neededto tell Alvarez it wasall a lie. Munoz then refrained from going out with appellants for a period of about three weeks. In the meantime, appellants continued committing crimes. (39 RT 5951-5954; 45 3" SCT 12931-12932.) 17. This was the same Remington .22 used in the Lake Matthews shootings. Selfhad given the .22 to a neighbor, AlCole,to useascollateral for a $20 loan. Munoz obtained the Remington from Cole after the Williams shooting. (39 RT 5953-5954.) 18. The Remington .22 waslater examined bya ballistics expert who testified the gun wasa “piece of garbage”andin “pretty bad shape.” Thesafety button was missing, the stock was cut off, the grip and tubular magazine plunger was missing,thefiring pin was no longer completely recessedinto the firearm, and the trigger was inoperative. The expert testified that he was unable to match the Remington .22 to any of the bullets from any crime scene (including the Mans and Jones murders where the gun wasapparentlyused), but healso testified that if the Remington had been modified since the crimes were committed, then it would leave different rifling impressions and any comparisons werefutile. (43 RT 6585-6589.) 23 Burglary And Vandalism Of Magnolia CenterInteriors, November14, 1992 (Counts XI & XII) At about 6 p.m., on November 13, 1992, James Murphy, the ownerof Magnolia CenterInteriors, locked the doors ofhis business for the night. There was no damageto the store’s interior and the back door’s glass panels were intact. However, when Murphyreturnedto his business the following morning, the first panel of glass on the back door was broken out and there was massive damageto theinterior of his store. Filedrawers were turned upside down and emptied out, the numbers “666" andother graffiti were spray painted on the walls, new furniture had been stabbed with scissors and spray-painted, and the vandals had emptied a fire extinguisher all over fabric, carpet, and textile samples. Shoe prints resembling the “British Knights” prints found at the Mans-Jones murder scene were also found in the fire extinguisher dust at Magnolia Interiors. (34 RT 5354-5355, 5362-5375; 1 SCT [Exhs.] 45-46.) The office area was in shambles. The vandals sprayed glue all over and inside the computers and other office equipment, Murphy’s certificates and diplomas were stompedon anddestroyed,the photocopier and check imprinter were sealed with spray contact cement, and the combination lock was removed from an antique safe in an apparent attempt to open it. The antique safe sustained a significant amount of damage toits hinges, and nextto the safe, there were several chisels and screwdrivers that had been beaten flat in the vandals’ attempt to pry open the safe’s hinges. The vandals also took a sonogram of Murphy’s then-unborn son from his desk drawer, defaced it, stabbedit, and wrote “You’re going to die”on the top of it. Other graffiti on the walls read, “Just when you thought,” “Now is then,” and “Now youdie.” Thegraffiti found inside Magnolia Interiors matched the graffiti on a British Knights shoe box recovered from Self’s Oldsmobile anda briefcase bearing 24 Self’s first name foundinside Alvarez’s Colt. (32 RT 5039-5041, 34 RT 5354- 5355, 5362-5375; 37 RT 5687-5688; 1 SCT [Exhs.] 15-16, 100-103, 319-320.) The vandals stole a master set of keys, a set of shop keys, a dummy grenade of World WarII vintage, a scorpion encasedin Lucite that acted as a paperweight, and some Indian head pennies valued at $200 to $300. The master keys were to high-rise buildings the business serviced in the evenings, but were not labeled. The total out of pocket expense from the damage was approximately $18,000. (34 RT 5375-5376.) A police investigation determinedthe vandals entered by breaking the glass panels on the back door, putting their hand through the window, and opening the door. (34 RT 5355-5356.) Latentfingerprints obtained from one of the broken glass panels were analyzed and determined to match the index and middle fingers of Romero’s right hand. (34 RT 5357-5359; 37 RT 5550- 5555.) Inasearchof Self’s room at his grandmother’s house,police located a paperweight which had a scorpion encased in resin bubble,as well as a set of keys bearing a tag reading “Magnolia CenterInteriors, Jim Murphy.” Murphy later identified the keys as belonging to him, but the police never seized the paperweight so Murphy was unable to make anidentification. (37 RT 5655- 5657, 5660-5662, 5667-5669.) Kidnaping And Robbery OfAlfred Steenblock, November 18, 1992 (Counts XT & XIV)” In the early afternoon of November 18, 1992, Alfred Steenblock was eating a sandwichin his Pontiac Grand Prix, which wasparkedin the Mission Grove Plaza parkinglot in Riverside. At around 1:15 p.m., Self approached Steenblock’s open window,pulled up his sleeve, and stuck the barrel of a gun 19. As previously noted, Self was convicted on these counts, but Romero was acquitted. (8 CT 1715-1835.) 25 within six inches of Steenblock’s face. Self came from the direction of a vehicle parked behind Steenblock’s car. Self ordered Steenblock to move over to the passenger’s seat, gotin the car, and proceededto drive outofthe parking lot. Self continued to hold the gun across his lap with his right hand. Steenblock offered Selfhis car ifhe let him go, but Selfrefused. (34 RT 5308- 5313, 5318-5319.) Self drove Steenblock’s car about a quarter of a mile to where the street dead-endedata field. On the waythere, Self chatted with his victim, asking for Steenblock’s name and reassuring Steenblock he would not kill him. Self appeared cool, calm, and like he knew what he was doing. The car that had been parked behind Steenblock at the shopping center followed them to the dead-end, and two people, one of whom was Chavez, got out of the car. Steenblock described the vehicle as a dark blue or black, earlier model Oldsmobile Cutlass or Buick Regal, similar to Self’s car. Chavez joined Self with Steenblock, while the third assailant stayed behindat the other vehicle. (34 RT 5313-5315, 5318, 5331-5332.) Self demandedSteenblock turn over his wallet, while Chavez demanded Steenblock’s moneyclip and watch. Chavez appeared uptight, excited, and quite belligerent. Self took Steenblock’s wallet from inside the car, pulled out an ATMcard, and asked Steenblockfor the PIN, saying, “We know where you live.” Steenblock disclosed the PIN to Self, whereupon Self ordered Steenblock to empty the glove box. Steenblock complied and then gave Self his watch and moneyclip containing $80. (34 RT 5315-5317.) Self and Chavez told Steenblock to walk into the field andstay there for at least one hour. Steenblock walkedinto the field and when he turedaround, he found both cars were gone. He walked aboutto the shopping center where he had been kidnapedandcalled police and his wife. He immediately canceled his ATM and credit cards, and in doing so, he learned one of his cards had 26 already been used to withdraw money from an ATM machine in Sun City. In the trunk of Steenblock’s car were his brief case with business papers,a cell phone,a full set of Lynx USAgolfclubs, and a box of a dozen golf balls. (34 RT 5317-5318, 5321-5328.) Shortly after the robbery, Munoz saw Romero unload golf clubs, golf balls, a cell phone, and a watchfrom the trunkofAlvarez’s car, in the presence of Self and Chavez. Romero admitted he stole the items from someone. Chavez had the watch, and Self later used the cell phone to make telephone calls. (39 RT 5954-5957.) . Self and Romero left Steenblock’s cell phone with a friend shortly before their arrest and the cell phone was later recovered by police. Steenblock’s golf balls and briefcase were recoveredin a search of Alvarez’s Colt. In a search of Self’s room at his grandmother’s house, police found a good-quality golfbag andclubs,but did notseize the items so they were unable to be identified at trial. (87 RT 5631, 5659-5660, 5683-5687; 41 RT 6254- 6256; 43 RT 6549-6550.) Steenblock’s car was recovered abouta yearlater. The engine components had been removed, mostly everything under the dash had been removed, only one wheel was on the car, and the trunk had been forced open. (34 RT 5337, 5350-5352.) At trial, Steenblock identified Self as the man who kidnaped and robbed him. (34RT 5318-5319.) Robbery Of Albert Knoefler, November 20, 1992 (Count XV) In the mid-afternoon hours of November 20, 1992, 70-year-old Albert Knoefler was tending his beehives at Markham and Washington in Riverside. His 1987 Chevrolet Tahoe pickup truck was parked nearby. At about 3:30 p.m., Self, Romero, Munoz, and Chavez were driving in the Colt and spotted Knoeflerat the beehives. The group waslooking to steal again and decided on 27 Knoefleras their victim. (34 RT 5340-5341; 39 RT 5957-5959;2 3" SCT 310; 45 3™ SCT 12978-12980.) Romero parked the Colt out of Knoefler’s sight and then approached Knoeflerat the beehives. Self, Munoz, and Chavez stayed backat the Colt. At first, Romero made pleasant conversation with Knoefler, walking with Knoefler alongside the beehives and asking him about his work. But before long, Romero disclosed his true intentions, and holding a sawed-off shotgun,told Knoefler he needed the keys to the Tahoe. Knoefler responded, “I was wondering why you were beingso nice to me,” and gave Romero the keys. (34 RT 5341-5342; 39 RT 5959-5962; 2 3SCT 310; 45 3" SCT 12978.) Atthis point, Munoz,wearing a ski mask, joined Romero and Knoeflerat the beehives. Munoz had grown anxious waiting for Romero and decidedto see what was taking him so long. Munozgot inside the Tahoe and Romero handed him the shotgun. Romerothen told Knoefler he needed moneyforgas, and Knoefler gave Romero some cash from his wallet” Thereafter, Romero got in the Tahoe with Munoz andthey droveoff. (34 RT 5342-5345; 39 RT 5961-5964; 2 3 SCT 310; 45 3“ SCT 12978-12980.) Romero and Munoz drove the Tahoe back to where Self and Chavez were waiting in the Colt, and then they drove to an open field, with Self and Chavezfollowing behind. Atthe field, Munoz looked through the truck but did notfind anythingto take, so Romeroplaceda fire extinguisher on the gas pedal, put the Tahoein drive or neutral, and let the truck roll down a hill. After 20. Knoefler testified he gave Romero $40 or $50 and Romerosaid, “That’s enough,”even though Knoefler had more moneyin his wallet. Munoz testified Knoeflerat first offered only $25, but when Romero told Knoefler he would need all ofit, Knoefler handed over more money. Munoz believed Romerostole about $75 from Knoefler. Munoz gave a similar accountin his statement to police. Romerotold police he took “whatever cash [Knoefler] had.” (34 RT 5342-5343; 39 RT 5962-5963; 2 3 SCT 310; 45 3 SCT 12981.) 28 driving off in the Colt, the group used Knoefler’s money to buy snacks,beer, and cigarettes. (39 RT 5964-5966; 2 3 SCT 310; 45 3 SCT 12981.) In the meantime, Knoefler finished tending his beehives. Having no transportation home, he spoke to a young man walking bythearea. The young man invited Knoefler into his house to use the phone,telling him, “My dad’s acop.” The police then respondedto the scene. About two weekslater, police recovered Knoefler’s truck, which according to Knoefler, was “pretty well beat up.” The alternator and other valuable parts were removed, the lights were vandalized, andonly the driver’s side window wasintact. (34 RT 5345-5346.) Romero confessed to robbing Knoefler duringhis interview with police. Heoriginally intended to shoot Knoefler, but because Knoefler “reminded [him] of his grandpa,” he just took his cash and truck. Romerosaid he left Knoefler with “water and everything he needed” and told him he would be “back in a few hours.” Painting himself as the good Samaritan, Romero said he rolled Knoefler’s truck down a nearbyhill so that “if he went walking he’d find it at least.” (2 3 SCT 310.) Robbery Of Jerry Mills, Sr., And Jerry Mills, Jr., And Receipt Of Their Stolen Property, November 21, 1992 (Counts XVI & XVID) In the afternoon ofNovember 21, 1992, Jerry Mills, Sr., and his 15-year- old son Jerry Mills, Jr., were target shooting two miles south of the Perris airport. Mills Sr. had four firearmsin the backofhis Nissan pickup truck: a 45 caliber Gold Cup Colt semiautomatic pistol with red sights, special grips, and an ammunition clip; a .22 caliber semiautomatic Rugerpistol with a 10- round clip; a .22 caliber Ruger convertible western-style single action revolver with two interchangeable cylinders; and a .22 caliber Ruger semiautomatic 10/22 rifle with a dark mahoganystock,leather sling, and telescope sight. He 29 also had a tool box, an ammunition box, two 10-round magazines, and one 25- round curved banana clip for the rifle. (35 RT 5382, 5390-5400; 2 3% SCT 308-310.) At around 12:30p.m. to 1:00 p.m., Self, Romero, and Chavez drove up in the Colt and parked next to Mills’ truck. Mills Sr. looked over and saw Self with a shotgun,pointingit directly in the victims’ direction. In an attempt to protect his teenage son, Mills Sr. told Self, “Just take whatever you want.” Mills and his son were then ordered to stand behind a telephone pole. While they stood behind the pole, Mills Sr. observed appellants and Chavez taking items out of his truck and loading them into the Colt. Self, still holding the shotgunbutalso nowcarrying Mills’ .45 caliber Colt pistolin hisbelt, walked up to the telephone pole and asked Mills and his son for their money. After Mills Sr. opened his wallet, Self lifted about $150 from inside, wished his victims a merry Christmas, and walked away. (35 RT 5384-5388, 5403-5404; 2 3 SCT 308-310.) Self, Romero, and Chavez then split up, with two driving awayin the Colt and one driving away in Mills’ pickup truck. About a half an hourlater, police found Mills’ truck abandoned approximately one mile downthe road. The keys wereinside, but all of Mills’ firearms and ammunition were stolen, as were his mobile phoneadapter, radio, tool box, and ammunition box. (35 RT 5389-5400; 2 3SCT 308-310.) Chavezlater told Munozthat he, Self, and Romero robbeda father and son, and MunozobservedSelfshooting Mills’ .22 caliber semiautomatic Ruger pistol and .22 caliber Ruger revolver (which Munozcalled the “cowboy gun”) in Self’s grandmother’s back yard. Inside Self’s room, Munoz saw Mills’ .22 caliber Rugerrifle with the scope and bananaclip, as well as Mills’ ammunition box. Munoz’s brother Ruben later observed Romero holding the .22 caliber Rugerrifle inside the grandmother’s house. Self began carrying Mills’ .22 30 caliber Ruger pistol with him “all the time”and he referred to it as “his gun.” Likewise, Romero regularly carried Mills’ .45 caliber Colt pistol, “likedit,” thought it was “beautiful,” and considered it “his gun.” When Munoz once asked to see the .45 caliber Colt pistol, Romero told him “Fuck, no.” Munoz said the .22 caliber Ruger revolver was eventually sold to a neighbor. (39 RT 5966-5971; 37 RT 5587-5588, 5590-5593, 5615; 2 3 SCT 310, 326; 45 3" SCT 12935-12936.) Police later recovered the .45 caliber Colt pistol, the .22 caliber Ruger pistol, and the 25-round bananaclip at the vacant house where Selfand Romero werearrested. These items were found amongidentification belonging to Self and Romero. (35 RT 5390-5400; 37 RT 5638-5642, 5644, 5647-5651.) Mills’ ammunition box was recovered from Selfand Romero’s grandmother’s house. (35 RT 5399; 37 RT 5657.) Mills’ .22 caliber Ruger semiautomatic 10/22 rifle with scope wasrecovered from theattic of a donut shop (The Donut Factory) where Romero’s girlfriend Sonia Alvarez was previously employed.2” (37 RT 5707-5714; 42 RT 6399-6401.) Romero admitted to robbing Mills Sr. and Mills Jr. in his statement to police. (2 3 SCT 308-310.) At trial, Mills identified Self as the robber holding the shotgun.” (35 RT 5403-5404.) 21. During the investigation into appellants’ crimes,police learned that a man named Carl Rife was married to Alvarez’s sister. After Alvarez’s home was searched bypolice in December 1992,Alvarez asked Rife to check whether there was a gun in the attic of The DonutFactory. Rife checkedtheattic but found no weapon. Sometime before September 1995, Eric Davenport was helping an employee of The Donut Factory clean up the shop when he discovered Mills’ .22 caliber Rugerrifle in the attic. Therifle was now missing its mahogany stock, butstill retained its scope. Despite the attic’s dirty and dusty appearance, the rifle was relatively clean and had minimal dust. Davenport turnedtherifle over to police. (37 RT 5707-5714; 42 RT 6399- 6401.) 22. In his opening brief, Romeroasserts, “Mills did not identify the people who robbed him.” (RAOB 33.) Romero misstates the evidence. Mills 31 Murder Of Jose Aragon, November 25, 1992 (CountIIT) In the morning of November 25, 1992, the day before Thanksgiving, Self and Romero awakened Munozathissister’s house, asked for the .20-gauge shotgun", and told Munoz to accompany them. Self, Romero, and Munoz piled into Alvarez’s Colt, taking along the .20-gauge shotgun as well the .22 caliber Rugerrifle with scope, the .22 caliber Rugerpistol (“Self’s gun”), and the .45 caliber Colt pistol (“Romero’s gun”) stolen from Jerry Mills. Knowing they were about to commit another robbery, Munoz suggested they “jack” somebody who had guns sohe could have a gun of his own. While driving around, Munoz consumed nearly a dozen beers. (39 RT 5974-5977; 40 RT 6138-6141; 45 3 SCT 12981-12982.) Afier a few hours, Self, Romero, and Munoz ended up in a mountainous area near Banning called San Timoteo Canyon, which contained a sandyriding area for motorcycle enthusiasts. In the Canyon they spotted Jose Aragon,a 22- year-old competitive motorcyclist, riding his motorcycle in the sand. Aragon had left a note at his parents’ house in Redlandsearlier that morning,telling them he was going riding in San Timoteo Canyon. Aragon’s pickuptruck, which he used to transport his motorcycle and riding gear, was parked nearby the sandy riding area. Aragon was wearing full protective racing gear, including shoulder pads, a kidneybelt, thigh pads, racing boots, a helmet, clearly identified Self as the robber with the shotgun. (35 RT 5403-5404.) Although Mills did not specifically identify Romero as one of the robbers, Romero admitted to robbing Mills in his statement to police, he was often seen carrying the .45 caliber Colt pistol, and the .45 Colt and .22 caliber Rugerpistol were recoveredat the location of appellants’ arrests. (39 RT 5969-5970, 5976- 5977; 2 3SCT 308-310; 45 3° SCT 12936, 12976.) 23. Munoz had borrowedthe shotgun from Self after Munoz brokethe Remington while trying to makeit fully automatic. (39 RT 5974-5975.) 32 goggles, and gloves. (35 RT 5406-5410, 5414; 38 RT 5719; 39RT 5977-5978; 45 3SCT 12982.) While watching Aragon ride his bike, Self, Romero, and Munoz began discussing the best methodto rob Aragon. Specifically, Selfwanted to use the scoped .22 Rugerrifle to shoot Aragon while he wasriding, while Romero wanted to watch Aragonride for a bit longer because it looked “cool.” The group decided to park the Colt somedistance away and wait until Aragon came back to his pickup truck. (39 RT 5978-5979; 45 3 SCT 12982-12984.) When Aragon returned to his truck, Self, Romero, and Munoz approached him, and Romero proceeded to engage Aragon in a pleasant conversation about motorcycle riding. Aragon was being “real nice” to everyone, showedoff his bike to Romero, and ultimately agreed to perform some more riding tricks at Romero’s request. While Aragon wentoff to perform the requestedtricks, Self, Romero, and Munozdiscussed robbing and shooting him. Romero remarked that Aragon wasthereall alone and wasnot expected anywherethatday, so they could just take all of his possessions and leave. Self reiterated that he wanted to shoot Aragon while he rodehis bike. Munoz disagreed with shooting Aragon, and instead proposed to threaten Aragon into turningoverall ofhis possessions. (39 RT 5980-5983;45 3 SCT 12982-12984.) When Aragon returned from performing his tricks, Munoz started walking towards him,intendingto threaten him. Just after Aragon dismounted from his bike, Self, who wasseated in the Colt, fired multiple shots at Aragon with the .22 caliber Ruger scoped rifle. Aragon appeared stunned andin pain, grabbedhisside, andfell to the ground. Munoz ran to Aragon and asked him for his truck keys and wallet. Aragon told Munozthat everything was in the truck. (39 RT 5984-5987; 45 3% SCT 12984-12986.) 33 Romero helped Aragoninto the bed of the truck, and as Aragon was nodding out, Romero taunted him by asking, “How doesit feel to get shot? Does it burn?’Self, Romero, and Munoz then began removing items from Aragon’s truck,including a red toolbox containing motorcycle parts, a set of Craftsman tools that Munoz later gave to his father, change from theashtray, and Aragon’s wallet. Romero took the toolboxes back thecar, while Self and Munoz found Aragon’s ATM card and asked Aragon for his PIN. Self told Aragon, “Give me the code or I’m goingto kill you.” Aragon seemedto be close to passing out, but he eventually gave his PIN to Munoz. Munoz repeated the PIN to himself in an attempt to rememberit. (39 RT 5988-5991, 5994- 5995, 6003-6004; 45 3% SCT 12984-12987.) Although Self promised not to kill Aragon if he gave his PIN, Self reneged on his promise, put the .22 Rugerpistol up to Aragon’s ribs, and repeatedly shot him onhisleft side. Aragon’s body jerked with the first shot, but with each shot, he moved less, until finally, his bodylaid still. Self then picked up the .20-gauge shotgun,stood directly above Aragon, and shot him in the neck with a sabot round. Munoz, who was now walkingbackto the Colt, heard the shotgun roundhit the truck bed. (39 RT 5991-5993; 45 3 SCT 12987-12988.) 24, Inhis openingbrief, Romerostates when he helped Aragoninto the back ofthe truck, Aragon wasstill consciousand“in justa little pain.” (RAOB 37.) Romero’s opinion about Aragon’slevel ofpain has absolutely no support in the record other than his self-serving statement to police. The evidence established Aragon’s abdominal woundlikely came from the .22 caliber Ruger rifle, which both Munoz and Romeroagreedwasusedtofire the first shot. The coronertestified that this projectile entered the right side ofAragon’s abdomen, traveled though his abdominal wall, colon, and kidney, and cametorest in muscletissue adjacentto the spine. Given these injuries, Aragon no doubtfelt more than “justa little pain.” (35 RT 5462; 38 RT 5785-5788; 43 RT 6571- 6572; 2 3 SCT 303-304; 45 3 SCT 12984-12985.) 34 Munozand Selfthen rejoined Romero at Alvarez’s Colt. As they drove off, Selfjovially recounted how he shot Aragon,stating, “Oh, wow,you should have seenthe hole it made. It made a hole, wentall the way through. Andthen it just closed with blood.” He demonstratedthe size ofthe hole — about two and half inches — with his hands. (39 RT 5993-5994; 45 3 SCT 12988.) After murdering Aragon, Self, Romero, and Munoz drove to Perris, where they bought gas with money taken from Aragon’s wallet and unsuccessfully tried using Aragon’s ATM cardat two different banks. They then drove to Sun City, where Munoz used Aragon’s ATM card to withdraw money from two other banks. At the first bank, Munoz checked Aragon’s accountbalance and withdrew $120. The group then dined at a nearby Coco’s restaurant, where they discussed how to retrieve more money from Aragon’s accountby first making a fake deposit.During lunch, Self and Munoz headed over to the second bank which wasacrossthestreet, made a fake $500 deposit, and withdrew $180 from Aragon’s account. The group split the moneythey stole from Aragon’s accountand drove home. Munoz admitted hetried to use Aragon’s ATMcard again,butthat the bankshetried would not accept the card and the final ATM machinetook the card and did not return it. (35 RT 5468- $471; 36 RT 5479-5500, 5505-5507, 5510, 5513, 5523; 39 RT 5995-6003; 45 3 SCT 12944-12945, 12951-12952, 12993-12998.) Laterin the afternoon ofNovember 25, 1992, Ted Lehmann, a member of Aragon’s motorcycle club, wentriding with his 10-year old son and a friend at San Timoteo Canyon. When they arrived at around 2:00 to 2:30 p.m., Lehmannsaw Aragon’s truck and riding gear, as well as a body lying in the bed 25. Self used to work at this Coco’s restaurant. While they ate lunch after murdering Aragon, oneof Self’s former coworkers came over to speak with him. When she asked Self what he was doing for a job or to earn money, Self said he did not have a job,told her he was “getting by,” and then looked over at his brother Romero with a “funny smirk.” (35 RT 5503-5507.) 35 ofthe truck. He believed Aragon wasasleep. At around 4:00 p.m., Lehmann’s young son drove.close to Aragon’s truck andtold his father something appeared wrong with the manlying in the truck. Lehmann wentover to Aragon and, not yet realizing Aragon wasdead,threw his white motorcycle helmetinto the bed of the truck and tried to assist or revive Aragon. Lehmann soonrealized Aragon was dead andobserved his large throat injury (two- to two-and-a-half inchesin diameter) and other woundsontheside of his torso. Once Lehmann realized Aragon wasdead, he told everyone to move away from the truck and called the police. (35 RT 5422-5427.) In the meantime, Aragon’s father returned home and found Aragon’s note. When Aragon did not return home by 5:30 p.m., his father drove to San Timoteo Canyon to look for him. It was already dark when he arrived and police vehicles and tape surrounded Aragon’s truck. The policeinitially told him Aragon had an accident, but later informed him his son had been shot. Whenpolice returned Aragon’s truck to him after the investigation, there were bloodstains and bullet indentations in the truck bed. (35 RT 5410-5412.) Police found Aragon lying in the truck bed with his legs hanging over the tailgate. Police recovered one .22 caliber bullet casing on the ground behindthe truck’s tailgate, seven .22 caliber bullet casings on the truck bed near and forward of Aragon’s body, and several bullet fragments near and under Aragon’s body. Ballistics tests showed that several ofthe .22 casings found in the truck bed could have been fired from the .22 Rugerpistol appellants stole from Jerry Mills, but the casing found on the ground wasfired from neither the .22 Rugerpistol nor the .22 Ruger scoped rifle. (35 RT 5431-5444; 42 RT 6574-6580, 6587-6588.) Police later recovered the items Self, Romero, and Munoz took from Aragon’s truck. Police found the red toolbox containing motorcycle parts in Alvarez’s Colt, and based on information given to them by Munoz, police 36 seized the Craftsman socket set from Munoz’sparents. Police were abletolift two latent fingerprints from the red toolbox found in the Colt, and these fingerprints matched Romero’s left and right middle fingers and his right thumb. (35 RT 5414-5415, 5471-5473; 37 RT 5684-5685; 39 RT 6003; 42 RT 6380-6383, 6492-6495.) An autopsy on Aragon’s body revealed 11 gunshot wounds,including a very severe, devastating wound to the neck and head, as well as numerous woundsto the torso. The head wound was unusual, causedby a sabot shotgun round entering underneath the chin andexiting on the left back side ofthe head. Thepresenceofplastic sabot halves found inside Aragon’s throat indicated the weapon was fired close enough for the sabots to still be traveling with the projectile and enter the body along with the shotgun round. (35 RT 5455, 5462-5463; 38 RT 5764-5767, 5788-5791, 5795.) | In addition to the head wound,there was a graze wound to Aragon’sleft shoulder, eight wounds traveling left to right through the torso, and one abdominal woundentering from the right side. Most of the woundsto theleft side of the body appeared to be contact wounds, as the coroner observed gunshotresidue and powder burns on Aragon’s skin. Most of these wounds also penetrated vital organs. The woundentering the abdomen from the right side did not appear to be a contact wound. The projectile entered the right side of the abdomen,traveled though the abdominal wall, colon, and kidney, and cameto rest in muscle tissue adjacent to the spine. The projectile brokethe skin near the spine but did not exit the body, perhaps owing to the presence of Aragon’s kidneybelt, which wasstained with blood wherethe bullet attempted to exit. (5 RT 5451-5463; 38 RT 5768-5788; 42 RT 6373.) In additionto the plastic sabot fragments recovered from Aragon’s neck, the coroner recovered nine .22 caliber projectiles from Aragon’s body. Ballistics tests confirmed that four of the .22 caliber projectiles found in 37 Aragon’s torso could have been fired from the .22 Ruger pistol appellants stole from Jerry Mills and that the .22 caliber projectile recovered from Aragon’s abdomen could have been fired from the .22 Ruger scopedrifle also stolen from Mills. The plastic pieces recovered from Aragon’sthroat were consistent with BRI .20-gauge sabot shotgun shells. (35 RT 5459-5462; 38 RT 5770-5788, 5815-5816, 5820-5822; 43 RT 6564-6573.) The coroner determined Aragon died from multiple gunshot wounds, and while the head wound overshadowedthe torso wounds,theyall contributed to his death. The right abdominal wound wassevere, but not absolutely fatal, and Aragon would have had a chance of surviving if given prompt medical attention. The coroneralso concluded, even without the head wound, Aragon would not have survived because he received too many gunshot wounds through too many vital organs. All wounds were antemortem, meaning Aragon’s heart wasstill beating whenSelfdelivered the final shotgun round to Aragon’s neck. (38 RT 5792-5800.) In his interview with police, Romero admitted robbing Aragon, but denied knowing whoshot him. Romerosaid he did not know whofired the first shot, and he immediately walked backto the Colt with the toolboxesafter he helped Aragoninto the bed ofthe truck. (2 3 SCT 299-306, 320-321.) He also recalled that Self bought the “neatest” shotgun slugs at Coast to Coast Hardware. He described them asred and “bigger than any other.” (2 3" SCT 311-312.) Self confirmed to police that he bought shotgunshells at Coast to Coast Hardware before the Aragon shooting. (45 3% SCT 13078-13080.) Munozrecalled seeing similar shotgun slugs in Self’s room. (39 RT 6010- 6011.) The day after Aragon was murdered, Munoz drove to San Diego and gave the .22 caliber Remingtonrifle to his brother Ruben. Hebelieved the police were going to arrest him soon and wanted to unload the rifle. (35 RT 38 5473-5475; 37 RT 5601-5602, 5618-5619; 39 RT 6008-6009.) Asit turns out, a bank security camera caught Munoz on tape as he withdrew funds from Aragon’s account on the day of the murder, andit wasnot long before police identified Munoz as the man in the photograph and arrested him. In the meantime, appellants and Munoz continuedtheir crime spree. (35 RT 5468- 5471; 36 RT 5489-5496; 39 RT 6029-6030.) Self’s Attempted Murder And Robbery Of John Feltenberger,” November30, 1992 (Counts XVIII & XTX), And Romero’s Receipt of Feltenberger’s Stolen Ammunition Pack (Count XX) At around 4 a.m., on November30, 1992, Ontario Police Sergeant John Feltenberger wasdriving home from workin his red 1991 Geo Metro. He was off-duty and in civilian clothes. Less than a quarter mile from his home in MorenoValley, Feltenberger noticed a white foreign modelcaronhisleft side, driving parallel to and maintaining speed with him. Believing it was his newspaperdelivery mantryingto get his attention, Feltenberger pulled over to the right side of the road and stopped his car. The white car, which was Munoz’s sister’s Toyota Tercel being driven by Munoz, stopped beside Feltenberger. Self stepped out of the Tercel’s passenger seat. (32 RT 4945- 4948; 39 RT 6012-6015.) Before encountering Feltenberger, Munoz and Self had spent the last several hours drinking alcohol and using drugs. When they drove past Feltenberger’s car, Self told Munoz to follow him and Munoz complied, believing they were goingto carjack Feltenberger. They were armedwith the 26. Feltenberger’s name wasspelled “Feltonberger” in the charging documents, but during his testimonyat trial, Feltenberger spelled his name without an “o.” (32 RT 4944; 4 CT 831.) 39 .20-gauge shotgun. (39 RT 6012-6013; 45 3% SCT 12964-12965, 13000- 13004.) When Self stepped out of the Tercel, he pointed the shotgun at Feltenberger, opened Feltenberger’s door, told him to get out of the car, and demandedhis wallet. Feltenberger got out of the car, raised his hands, and began to back away from Self, while Self again demanded Feltenberger’s wallet. Feltenberger heard a voice from the Tercelyell, “Kill him”or “Shoot him.” Feltenberger then threw his wallet toward Self, saying, “Nobody hasto get hurt.” He again heard the samevoicesay, “Kill him.”2” (32 RT 4948-4952; 39 RT 6015-6018; 45 3 SCT 12964-12965, 13000-13004.) After Self examined Feltenberger’s wallet, Self muttered in a soft whisper, “I ought to shoot you.” As Feltenberger started to reiterate “Nobody has to get hurt,” Self shot him in the chest with a shotgun slug. Feltenberger collapsed to his knees as Selfmade off with his Metro and Munoz drove away in the Tercel. Feltenberger, bleeding profusely and out of breath from a collapsed lung, staggered and crawled to a nearby house for assistance. (32 RT 4952-4954; 39 RT 6015-6018; 45 3SCT 12964-12965, 13000-13004.) Self shot Feltenberger in right chest, where the shotgun slug ripped throughhis right lung and exited out his right back. At the hospital, doctors removed a piece ofred plastic from Feltenberger’s right arm, which waslater determined to be consistent with a BRI .20-gauge sabotshotgun round. Similar pieces ofred plastic were foundat the scene of Feltenberger’s shooting. Asa result ofhis injuries, Feltenberger remainedin intensive care for three days and in a hospital ward for another seven days. His lungcapacity wasstill only 90% of normalat the time oftrial, and he continued to suffer breathing problems. 27. Munozdeniedtelling Selfto kill Feltenberger. Instead, Munoz said he yelled Self’s name, “Chris,” and said “Don’t shoot.” 40 He also underwent surgery on his right arm because of numbness. (32 RT 4953-4954, 4958-4959, 4982, 4998; 38 RT 5817-5820.) After shooting and robbing Feltenberger, Self and Munoz met up at Munoz’s sister’s house, where they rummaged through Feltenberger’s Metro. Inside they found a flashlight, a hatchet, a knife, a gym bag, an empty ammunition pouch,anda leather case containing police reports. Self took the flashlight and ammunition pouch, and Munozput the hatchetin a shed in his sister’s backyard. Later that afternoon, Romero saw the ammunition pouchin Self’s room and said he wantedit for the .45 caliber Colt pistol he stole from Mills. After that day, Romero always had the ammunition pouchclippedto his pants. In his interview with police, Romero confessed to acquiring Feltenberger’s stolen ammunition pouch, and admitted he knew Self and Munoz robbed and shot Feltenberger. (2 3 SCT 323-324.) Police later recovered Feltenberger’s flashlight from a shed outside appellants’ grandmother’s house. Police recovered the ammunition pouch, which contained two copper-jacketed .45 caliber bullets, inside the vacant house where Self and Romero were arrested. (32 RT 4960-4962; 37 RT 5587-5588, 5644, 5663; 39 RT 6018-6022; 45 3 SCT 13005-13008.) Later in the eveningofthe Feltenberger shooting, Self, Romero, Munoz, and Chavez watched a television interview where Feltenberger’s wife stated that Feltenberger wasalive in the hospital. Romero remarked that they “had to go to the hospital andtake him out.” (39 RT 6022-6023; 45 3 SCT 13008.) Self and Munoz disposedofFeltenberger’s Metro byletting it roll down a hill aboutfouror five blocks away from Munoz’s sister’s house. Police later recovered the Metro downa ravine and found shoeprints near the scene. One of the shoe prints was consistent with the size and sole pattern of the British Knights tennis shoes worn bySelfat the time of his arrest. Technicians also dusted the Metroforlatent fingerprints. Prints lifted from the Metro’s driver’s 41 door matched Self’s right middle and ring fingers. (32 RT 4999-5007, 5013- 5016; 38 RT 5838-5839; 39 RT 6023-6024; 42 RT 6496-6498; 45 3° SCT 13007.) | Feltenberger identified Self as the shooter, both at trial and in a photographicline-up about two weeksafter the shooting. At the preliminary hearing held on January 19, 1993, Feltenberger’s wife overheard Self speaking to another man after Feltenberger’s testimony. Self stated: “Well, I didn’t know he was a cop. I thought he was a farmer,” and “Do you think he could have rememberedall ofthat if he hadn’t been a cop?” (32 RT 4956-4957; 4986-4988.) In his interview with police, Selfat first denied even beingpresentat the Feltenberger shooting, then changedhis story to say he took Feltenberger’s car but did not shoot him,andfinally admitted shooting Feltenberger with the .20- gauge shotgun. (45 3 SCT 13056-13066.) Self insisted that althoughhe stole Feltenberger’s Metro, he did not removeany items from inside the car and did not take Feltenberger’s wallet. (45 3% SCT 13064-13069.) He also seemed to suggest his shooting of Feltenberger waseither accidental or in response to some sort of aggression from Feltenberger. Specifically, Self claimed Feltenberger pushedthe car doorinto his leg and the gun “went off.” (45 3" SCT 13065-13066, 13071.) Self said the shotgun shell did not contain pellets (“birdshot”), and he purchased the shotgun ammunition at Coast to Coast Hardware a few weeksbefore the Feltenberger shooting. Hesaid he obtained the shotgun about a month prior to the Feltenberger shooting. (45 3° SCT 13073, 13078-13080.) Selfadmitted to being high on crystal methamphetamine at the time of the shooting, having usedit just an hour before. (45 3 SCT 13058-13059, 13063, 13075.) 42 Romero’s Kidnaping And Robbery OfRobert Greer, December 5, 1992(Counts XXI & XXII) At approximately 8:00 p.m., on December5, 1992, Robert Greer parked his Honda Accord near an ATM machinein a Riverside shopping center. He withdrew $40 from the machine, and as he walked back to his car, Romero confronted him in the parking lot. Romero, who was wearing a ski mask, brandished a gun underneathhis jacket and told Greer, “Throw me your car keys and get into the passenger side.”28 Greer complied, then Romero jumped in the driver’s seat, took the $40 Greer had just withdrawn, and droveoff. Romero drovewith his right hand and held a .45 caliber semiautomatic weapon in his left hand. He placed the weaponacrosshis lap and pointedit at Greer. (36 RT 5525-5530, 5537.) During the 10-to-15-minute ride into Mead Valley, Romero made conversation with Greer, telling Greer he sang in the church choir. Romero asked Greer about the car’s condition and maintenance, and informed Greer he was going to take the Honda to a chop shop in San Diego and Greer would never see the car again. Romero also commented on the large amount of paperwork and manuals in Greer’s back seat, telling Greer he should keep his car cleaner. When Greer told Romerothat he worked a lot, Romero told Greer he should get a sociallife. During their conversation, Romero seemedarrogant, but calm. He told Greer not to worry aboutit, that it was only business. (36 RT 5531-5534.) During their drive, Romero ordered Greer to hand overhis wallet, but allowed Greer to keep some personalitemssuch as his social security card and photographs. Romerotold Greerto give him hisdriver’s license and ATM card 28. Although Greer could notidentify Romero because ofthe ski mask, Romero admitted to robbing Greer during his interview with police. (36 RT 5528-5529; 2 3 SCT 317-318.) 43 with the PIN, and Greer complied. Although Greerinitially wrote down the wrong PIN, he ultimately gave Romero the correct number after Romero threatened to send someoneto kill him or hurt him ifhe did not cooperate. (36 RT 5532-5534, 5537.) Romero drove down a dirt road in a rural part of Mead Valley and stoppedthe car. After letting Greer grab some manuals and paperwork from the car, Romeroleft his victim on the side of the road and drove off in his Honda, which contained recreational equipment and other personal items. Greer walked a few miles to a house, wherehecalled the police and his bank. Before he could close his bank account, his ATM card was used to make 12 withdrawals totaling $800. Greer recovered his Honda four days later at a towing yard. It was completely burned. (36 RT 5535-5538; 38 RT 5810- 5812.) In his interview with police, Romero admitted he “did” the Honda robbery. Romero justified the robbery bytelling police he hadbeensitting in the cold for two hours, became frustrated, and did not want to walk home because “it would look dumb.” Romero admitted to using the .45 caliber semiautomatic to rob Greer. Romerotold police Greer seemed scared, so he assured Greer he was onlytaking his car and not to worry. Hecalled Greer a “pretty cool guy.” Romero said he burned the Hondaat Old Elsinore Road with the assistance of Munoz’s brother Ruben. (2 3? SCT 317-318.) Police later recovered Greer’s ATM card during a search of Self’s and Romero’s grandmother’s house. (37 RT 5660.) Ruben Munoztestified at trial and recounted how he assisted Romero in disposing of Greer’s Honda. On December5, 1992, Ruben wasvisiting his brother Jose and sister Margarita at Margarita’s house in Perris. At around 11 p.m., Self drove up in the Hondalooking for Jose, but Jose was asleep, so Self left. At around 11:30 p.m., Self returned in the Honda accompanied by 44 Romero. Self and Romero asked Ruben for a ride so they could get rid of the Honda. Ruben drovehis truck, with Romeroin the passengerseat, while Self drove the Honda. They drove three to four blocks away and hid the Honda behind a rock, then Self and Romero torched it. (37 RT 5573-5577, 5583- 5585.) After burning the Honda, Ruben drove Self and Romeroback to their grandmother’s house and accompanied Romerointo his room. When Romero took off his coat, Ruben saw Romero wascarrying a .45 caliber pistol and ammunition clips in what appeared to be Feltenberger’s ammunition pouch. Romero cocked the .45 caliber pistol and said, “Look at that hole.” Romero pointed the gun at Ruben, who told Romero to point it away. Romero then started pulling a wad of money, an ATM card, and what appeared to be a driver’s license out ofhis pocket. Ruben, recognizing the donor card and“little dot” onthedriver’s license, told Romero, “Oh, he’s a donor.” Romero replied, “Well, he was.” (37 RT 5586-5592, 5615.) Rubenalso wentinto Self’s room. Self showed him a .22 caliberpistol and told Rubenit was “his gun,” and Romero showed Rubena .22 caliberrifle with a scope and banana clip. Self and Romero alsotalked about another gun they called “Big Bertha,” but told Rubenthey lent Big Bertha to someoneelse. (37 RT 5590-5593.) Romero remarked to Rubenthat his brother Jose should also have a gun at his own house. Romero told Ruben that Jose was talking too much about what was going on between them andhe did notlike it. Romero said he might shootor kill Jose because he wastalking about the business. (37 RT 5598.) Ruben madehis way outside the grandmother’s house, accompanied by Self, who was wearing white BritishKnights tennis shoes. Ruben askedSelf, “What are you doing?” and “What would you doif the cops come after you guys?” Self told Ruben he would runifthe police cameafter them,and if the 45 police caught Romeroand not him, he would “jack harder.” Self said he liked the feeling and satisfaction of carjacking and taking people’s money. Selftold Ruben,“I’m addicted to doing this,” and claimed he would notgo out without a bang. (37 RT 5593-5597, 5599.) Romero’s Robbery Of Roger Beliveau, December 7, 1992 (Count XXII) The next night, at around 12:45 a.m., on December7, 1992, Roger Beliveau drove his maroon 1978 Ford LTDto a local Riverside park after leaving work. He wasfeelinga little depressed and intendedto take a walk at the park. After walking for 10 to 15 minutes,he used the restroom, which was dimly illuminated by light coming in from the window. (37 RT 5559-5562.) Romero approached him from a darkened corner in the restroom and asked him if the car outside was his. Due to the darkness of the restroom, Beliveau could not make out Romero’s features or otherwise identify him.’ Beliveau confirmedthat the car outside washis and then heard the chambering of a pistol round. Romerotold Beliveau to give him his car keys and he would not get hurt. At this point, Romero wassilhouetted in the window,but Beliveau could see the barrel of a .45 caliber weapon pointed at him. (37 RT 5561- 5564.) Beliveauinitially handedoverall ofhis keys, but then asked Romeroif he could just give him the ignition key and keep the others. Romero handed back the keys, and Beliveau gave him the ignition key. Romero then told Beliveau to wait in the bathroom for five minutes and he would not get hurt. Beliveau watched as Romero got in the car, drove to the other end ofthe 29. Beliveau could notidentify the perpetrator as Romero, but Romero confessed to robbing Beliveau and gave a nearly identical description of the crime. (237 RT 5569; 3 SCT 319.) 46 parkinglot, and picked up another individual who was waiting behind a column with sometrash bags. They threw the trash bags in Beliveau’s car and drove off together. (37 RT 5564-5565.) | Beliveau’s car was found five days later parked behind a shopping center in Riverside. It had been ransacked and small items were missing. (36 RT 5514-5518; 37 RT 5566-5567; 45 3% SCT 12924-12925.) In his police interview, Romero admitted to robbing Beliveau and leaving his car behind a shopping center. Romero’s confession matched Beliveau’s description of the robbery, and he commented that Beliveau “got kind of mad” when he robbed him. (2 3SCT 319.) Munoz’s Arrest Police ultimately identified Munoz as the man removing money from Aragon’s account in the bank security video. Police arrested Munoz on December 11, 1992,at his sister’s house. Munoz was wearing the sameball cap he was wearingin the bank security video. After reading him his Miranda rights, Munoz waivedhis rights and agreed to speak with the police. 39 RT 6029; 41 RT 6336-6337.) Munoz initially denied direct involvement in any crimes. In particular, he claimed Romero and Self gave him Aragon’s ATM card and PIN,did nottell him where they got it, and asked him to help them take out money. (45 3% SCT 12918-12924, 12948.) He also claimed Self and Romerotold him they shot “two boysin thehills,” and denied involvementin that crime as well. (45 3SCT 12942-12944.) But Munozalso began hinting to investigators that he knew much morethan he wastelling them and would be willing to tell “the truth” and “get it off [his] chest.” (45 3™ SCT 12929- 12940, 12946.) Eventually, Munoz made lengthy statement, cataloging the series of crimes he committed with Self, Romero, and Chavez. (45 3" SCT 12970- 47 13052.) Munoz confessed notonly to the Aragon murder (which wasthe only crimepolice were thus far aware Munoz had committed), but also to the other murders, attempted murders, and robberies of which police were not yet aware. (45 3° SCT 12970-13052.) Munoz was made no promises in exchange forhis statements, nor did police tell or suggest to Munoz whatto say. (45 3° SCT 12958, 12967-12968; 39 RT 6031; 41 RT 6342.) Investigators specifically told Munoz they wanted him to “say the truth,” and when Munoz asked what he would “get outofthis,” the investigators told him they “do not make promises.” (45 3% SCT 12958, 12967.) Just before he confessed, Munoz told investigators, “I gotta pay for what I did.” (45 3™ SCT 12970.) Munoz subsequently entered into a plea agreement with the District Attorney in whichhe agreedto testify at appellants’ and Chavez’s trials and plead guilty to three counts of first degree murder, one count of attempted premeditated murder, three counts of robbery, and one count of attempted robbery. (2 CT 180-181; 45 3 SCT 12906-12910.) Munozlater pled guilty to these crimes and received a sentence of 51-years-to-life in prison, in accordancewith the termsofthe plea agreement. (45 3° SCT 13154-13156.) Aspreviously indicated, Munoz also confessed to shooting Paulita Williams during his plea negotiations, a crime the District Attorney was unaware of before Munoz’s confession to that crime. (39 RT 6033-6034.) Searches And Recovery Of Evidence Based onthe information Munozdisclosedin his interview with police, investigators recovered the .22 caliber Remington rifle from Munoz’s brother Ruben and Aragon’s Craftsmantool set from Munoz’s parents on December 12, 1992. (35 RT 5473-5475; 37 RT 5602, 5618-5619.) On the same day, police located Sonia Alvarez’s Dodge Colt, where they recoveredseveral items linking Self and Romeroto the charged crimes. In the 48 rear passenger compartmentofthe Colt, police recovered seven copper-colored shotgunpellets, three Super-X .22 caliber bullet casings, one live Super-X .22 caliber bullet, and Steenblock’s Legacy Gold golfballs. (34 RT 5322-5323; 37 RT 5676-5679, 5683-5684, 5696-5702.) In the Colt’s trunk, police recovered Aragon’s red toolbox, ski masks, an empty box of .22 caliber ammunition, 17 .22 caliber magnum cartridges, Steenblock’s briefcase, and another empty briefcase. (37 RT 5675-5678, 5684- 5685, 5702-5704.) Romero’s fingerprints were found on the Colt’s driver’s door and on Aragon’s red toolbox. (42 RT 6492-6495.) Steenblock’s briefcase, which contained no ammunition whenstolen, wasfilled with a box of Federal Premium Hi-Power .20-gauge shotgun shells, a box of BRI sabot three-inch magnum .20-gauge shotgunshells, and two loose .20-gauge shotgun shells tuckedinto the lining ofthe briefcase. (34 RT 5324-5325; 37 RT 5688- 5696.) The inside ofthe empty briefcase contained Self’s first name “Chris” written in block-letter graffiti. (37 RT 5687-5688.) The graffiti appeared similar to the graffiti drawn or sprayed inside Magnolia CenterInteriors. (1 SCT [Exhs.] 15-16, 319-320.) Police also searched Self and Romero’s grandmother’s house on December 12", where they again found several items linking appellants to the crimes charged. Officers found set of keys from Magnolia Center Interiors, a leather golf bag with a full set of clubs”, a paperweight with a scorpion encasedin a resin bubble*’, Robert Greer’s ATM card, Jerry Mills’ tackle box of ammunition, a .22 caliberrifle magazine, and Feltenberger’s flashlight. (32 30. Althoughthis item wasnotseized,a leather golfbag with a full set of clubs was in Steenblock’s car when Romero carjacked him. (34 RT 5321- 5322.) 31. Although this item was not seized, James Murphy, the owner of Magnolia Center Interiors testified a similar paperweight wasstolen from his business. (34 RT 5375-5377.) 49 RT 4960; 34 RT 5321-5322, 5375-5377; 35 RT 5399; 37 RT 5655-5663, 5667- 5669.) In a later search of Self’s Oldsmobile, police recovered a plastic Nissan brake cover and a torn ATM receipt stemming from the Meredith robbery, as well as 261 rounds of .22 caliber ammunition, one expended .22 calibershell casing, and a British Knights shoe box. The word “Flaco” was written on the top of the shoe box in block graffiti lettering, similar to the graffiti written on the walls ofMagnolia Center Interiors and onthe insideofthe briefcase inside the Colt’s trunk. (32 RT 5034-5043, 5049-5051, 5059-5060; 1 Supp CT [Exhs.] 100-103.) Appellants’ Arrests Based on information supplied by Munoz, investigators contacted Florence Daul, an acquaintance ofRomero, on December17, 1992. Daul told investigators that Peggy Lopez, Self and Romero’saunt, brought the suspects to her home a day or twoearlier. Self and Romerostayed at Daul’s home overnight. The following night, Daul saw a television newsreport stating Self and Romero were wanted for murder and that a warrant had been issued for their arrest. Daul provided Self and Romero with food, cigarettes, some blankets, and a sleeping bag, and drove them to an abandoned house on Magnolia Drive in Riverside. Self and Romeroleft a cell phoneat Daul’s house, and Daul subsequently gave the phone and other items to her friend TammyVilla for safekeeping. Villa, who was also Romero’s formergirlfriend, later turned the cell phone and other itemsover to police. (37 RT 5626-5631, Al RT 6252-6256.) The cell phone waslater identified as belonging to Steenblock. (34 RT 5323-5324.) At 4:00 p.m., on December 17, 1992, police arrested Self and Romero at the abandoned house on Magnolia Drive. Self was wearing white British 50 Knights tennis shoes when arrested. Followingtheir arrest, police searched the abandoned house andrecovered several items linking appellants to the Jerry Mills robbery. Amidst wallets, driver’s licenses, papers, and other identifying documents belonging to Self and Romero,police recovered Mills’ .45 caliber Colt pistol, .22 caliber Ruger pistol, and 25-round banana clip for the .22 caliber Ruger scopedrifle. Inside the banana clip werefour .22 caliber long copper-jacketedbullets. (35 RT 5390-5400; 37 RT 5636-5653; 38 RT 5728- 5729.) After their arrests, Self and Romero provided voluntary statements to police, wherein they confessed to several ofthe crimes charged. (38 RT 5858- 5866; 43 RT 6604-6608.) Self’s Escape Attempt At around 1 a.m., on December 16, 1994, Deputy Sheriff Scott Collins approached Sonia Alvarez in the parkinglot ofthe Riverside County Southwest Detention Facility. Alvarez was parked in an “authorized vehicles only” area ofthe jail’s parkinglot, directly in front of the B pod housing area and the window ofcell 54, where Self was housed alone. Cell 54 is on the ground floor. After Alvarez gavethree conflicting stories as to why she wasparkedin that location, Deputy Collins took her into custody. Alvarez reported that she visited Self at thejail, and Collins relayed this information to other correctional deputies. (42 RT 6504-6515.) Whencorrectional deputies searchedSelf’s cell, they noticed gouges and pry marks in the concrete aroundthecell’s rear window and on the window itself. There were chips of concrete on Self’s bed, which was locateddirectly underneath the window. Selfhad a half-inch-to-one-inch cutonthelittle finger of his left hand, plus redness to both hands. A metal bracket which normally holds the television on to its stand was found floating loose underneath the 51 television, and there were scratches andpainton the endofthe metal bracket. (42 RT 6515-6523.) Correctional deputies also searched the cell next door to Self’s cell, which was occupied by Richard Landis. Landis’ cell window also had chips around the concrete and on the windowitself, and the window had a cra ck approximately one-inch in diameter. The metal bracket to his television was also removed, and deputies found a lot of cementparticles on the floor and on bedding just below the window. (42 RT 6527-6530.) Romero’s Escape Attempts In early April 1994, Romero was housed next to Arthur Dickenin the Riverside County Jail2’ Romero’s cell mate was Michael Aragon.’ Between April 1, 1994, and April 14, 1994, Dicken saw Romeroandhis cell mate use hacksaw blades to cut on the bottom bars oftheir cell door. Dicken heard scraping and filing sounds throughoutthe night, and by laying on the top ofhis bunk bed and looking at a television set outside of his cell, he observed reflected images of Romero and Michael Aragon using the hacksaw blades. Romero and his cell mate disguised their work by using scotch tape to hold the cell bars in place and toothpaste mixed with paint chips to cover the damageto the bars. (42 RT 6418-6423, 6450, 6460-6461.) In order to escape from thejail, inmates need to pass through a number oflocked doorsorgates, either by using a key obtained from a deputy or getting 32. Dicken had numerousfelony convictionsand usedseveralaliases. In orderto facilitate his crimes, he often held himself out as a governmentor military official, such as a CIA operative, an FBI agent, and a 20-year member of the Navy SEALs. (42 RT 6428-6437.) 33. Michael Aragon also made an escapeattemptprior to April 1994. (42 RT 6482.) 52 a deputy to open them. Romerotold Dicken they plannedto escape by waiting until the night shift, slipping through the gap in their cell door, grabbing the deputy doing the head count, and holding him hostage with makeshift shanks. Romero’s shank was made from a four-to-six inch sharpened piece of metal, while Michael Aragon had a smal! metal spear attached to tightly rolled up newspaper. (42 RT 6422-6423, 6425, 6479-6482.) Dicken also learned how Romeroobtained the hacksaw blades. Romero wanted Dicken to contact his (Dicken’s) attorney and have the attorney mail something to Dicken in an attorney-mail envelope. Romero then wanted Dicken to turn over the attorney-mail envelope to Romero andhis cell mate, who would then pass along the envelopeto oneoftheir visitors. The visitor would then use the envelope to mail back a legal pad with a hacksaw blade hidden in the rigid portion across the top. Romero pressured Dicken to give him his legal envelope so they could have extra envelopes to send out. Both Romero and Michael Aragonalsoreceived legal mail, and at one point, Dicken heard Aragonaskif“it” was in there, and Romero responded, “Yes, we gotit.” That night, they cut on their cell bars. (42 RT 6423-6425.) After Dicken reported Romero and Aragon’s plan to escape, deputies searched Romero’s cell on April 14, 1994. The deputies discovered that two bars on the lower right portion of the cell door had been cut completely through. The bars were held in place by scotch tape and disguised by makeshift paint, and the damage wasonly visible through close inspection. The bars could be removed, which exposed a gap large enough for someone to crawl through. In between the cell wall and the lower bunk, deputies uncovered a four-point metalstar that had one point missing and could beusedas a stabbing instrument. Months later, in Romero’s new cell, deputies found the missing point to the four-point star, hidden near the toilet bowl. This metal piece was 53 two-to-three inches long and, if sharpened, also could be used as a stabbing weapon. (42 RT 6426-6427, 6451-6459, 6472-6477.) Defense Appellants did not present any evidence during the guilt phase. PENALTY PHASE Impact Of Appellants’ Crimes On Jose Aragon’s Family And Friends Jose Aragon’s stepmother Lydia Aragon, friend Leighette Hopkins, and sister Stephanie Aragontestified to their love for Jose and the enormous impact of Jose’s murder upontheir lives. Jose, the eldest of four children, was a 22- year-old college senior at the time of his murder. He was quiet and shy, a dedicated student, an avid soccer player, and a competitive motorcycleracer. (49 RT 7276-7280, 7283-7284, 7303, 7307, 7318-7319.) Lydia recounted how the family learned ofJose’s murder, the traumatic experience of burying their child, and how they were deeply affected by his death. (49 Rt 7276-7302.) Lydia could not understand why anyone would murder Jose, who she described as a “kind and gentle soul” who “neverhurt anybody.” (49 RT 7289.) She often thinksofthe last moments of Jose’s life and how he wasleft to die alone in the bed ofhis truck. (49 RT 7300.) When the family received Jose’s truck back from thepolice, it was riddled with bullet holes and still stained with Jose’s blood. (49 RT 7292.) Lydia recounted how after the funeral, the family had to deal with the “agonizing pain”of losing Jose. (49 RT 7294-7297.) Since his death, Jose’s parents worry more about their other children’s safety and are often overly protective. (49 RT 7294-7295, 7328.) Lydia described Jose’s father, Steven, as a “shadow ofthe man he was.” After Jose’s death, Steven walled himselfoff 54 from the family andlost his purpose andinterest in life. (49 RT 7294-7295, 7298.) In honorofJose,friends restored Jose’s Studebaker to mint condition, and family and friends obtained license plates with variations of Jose’s nickname “Hoz.” (49 RT 7299-7300, 7327-7328.) Jose’s brothersandsisters (Steven, Carlos, Stephanie, and Laura) viewed Jose as a role model and were deeply affected by their brother’s death. Steven, who was only 11 months younger, was “extremely close” to Jose and the two were “inseparable.” After Jose’s murder, Steven withdrew from the family and had difficulty sleeping. (49 RT 7279-7281, 7295.) Carlos, 14 at the time of the murder, idolized Jose and often played soccer with him. In the summerbefore his death, Jose made Carlos promise that he would study hard and “make something” of himself. After Jose’s murder, Carlos devoted himself to his studies and wheneverhe feels depressed or angry, he “studies harder.” Heis often angry at his parents because they are so overprotective and irrational after Jose’s death. (49 RT 7278-7279, 7282, 7294-7295.) Stephanie, 15 at the time of the murder, testified that Jose always protected her and made her laugh. After Jose’s death, she was very lonely and sad, but the hardest part of her grief was trying to understand why Jose was murdered. Stephaniefeltlike a big part of herlife was ripped out and that she was cheated out of so muchbylosing her brother. Stephanie also felt blessed to have spent so manyyears of her life with such a wonderful brother. Since Jose’s death, Stephanie lives in fear of something bad happeningto her. (49 RT 7283-7284, 7318-7319, 7322-7327.) Laura, who wasfive years old when Jose died, was always excited to see her brother. Jose doted on Laura andtreated herlike a princess. When Jose was murdered, Laura was surroundedbyan angry, grief-stricken family, and this in turn caused her to misbehave in school and at home. Laura became 55 fearful and did not wantto sleep alone, and often asked Lydia when she was “going to stop crying.” (49 RT 7282-7283, 7294-7297, 7298, 7310.) Jose’s friend Leighette Hopkins described Jose as calm, upbeat, and somewhatfearful. It was difficult for Hopkinsto lose her friend, and she even saved a Pepsi bottle he drank from the night before his death. Since Jose’s death, Hopkins is more “paranoid”ofbeing killed and fears someone will break into her house or car. (49 RT 7303-7304, 7307, 7310-7316.) Impact Of Appellants’ Crimes On Joey Mans’ Family Joey Mans’ mother Catherine Mansandsister Angela Manstestified to their love for Joey, his unique personality, and the impact of his murder upon their family. Joey, the only son ofsix children, was 26 years old when he was murdered. He was “happy-go lucky,”bright, and overprotective ofhis family. He loved the outdoors and enjoyed fixing things. Joey was friends with Timothy Jones since they were 12 or 13 years old. Like Timothy, Joey was quiet, shy, and trusting. (49 RT 7331, 7333-7336, 7343-7344, 7346, 7347- 7348, 7355-7356.) Catherine Manslast saw her son about a year before his death, after he movedfrom Florida back to the Riverside area. She last spoke to him about a month before he died. Catherine described how she was informedofher son’s death and how losing her child was the “most horrible thing in the world.” Catherinedid not go to Joey’s funeral because she did not want “to see her son in a box.” Catherine often thinks about Joey’s last momentsand the pain he must havefelt. In her dreams, Joeytells her, “I’m okay.” (49 RT 7331-7332, 7337-7341, 7344.) Angela Manswas20 years old when herbrother died. Angelais often angry andin pain from knowingshe can notsharelife with Joey. Although she knowsJoey must have beenscaredin his final moments, she now thinks ofhim 56 as peaceful and in a better place. She dreams ofJoey telling her he is okay and to stop crying. Catherine describedthe funeral as the hardest thing she ever had to do and how herfather was dazed and numb. Sheis now paranoid andfearful for her ownsafety, often awakeningat night to check doors and windows. Her father is overprotective of his daughters now,drinks more, and has aged a lot since Joey’s death. Their sister Charlotte is also “very edgy” after Joey’s murder. Charlotte talks about Joey constantly and has not seemed to fully accept his death. (49 RT 7346, 7348-7354.) Impact Of Appellants’ Crimes On Timothy Jones’ Family James Jones, Timothy’s father,testified to his love for his son, Timothy’s unique personality, and the impact of his son’s murder on the entire family. Timmywas22 years old when he died. He was a “wonderful kid,” lovable, and “wouldn’t hurt a fly.” Timmy nevercaused his parents any problems and was very polite and helpful. James recounted his son’s birth,how Timmy lovedall kinds ofsports as a kid, and was a good mechanic. (49 RT 7360-7364.) James saw Timmythe day before he died. James was devastated when he learned of Timmy’s murder and wished it was himself instead of Timmy. Timmy’s mother Darlenewasin bad health at the time ofher son’s murder, and James believed the murder accelerated her-decline. James thinks of Timmy constantly andit is hard to realize he mustlive his life without his son. James did not attend thetrial very often because he did not want to know too much about how his son died. He can not understand why anyone would kill his kind, generous son. (49 RT 7366-7371.) 57 Appellants’ Violence Continued While Awaiting Trial Appellants continuedtheir violent criminal conduct while in jail awaiting trial. Appellants assaulted and harassed fellow inmates, and they possessed various shanks and makeshift weapons in their cells. Romero’s Assault On Rodney Medeiros On September 22, 1993, Romero assaulted fellow inmate Rodney Medeiros, who wasa new transfer to Romero’s cell block. Medeiros was the only inmate to receive a bag of commissary items that day, and shortly after he walked into his cell with the bag, Romero and five other menattacked him. The attackerstried to take his commissary items and wouldnotsettle for the few items Medeirosoffered them. Medeirosfell to the floor andhis attackers beat and kicked him. Medeiros suffered injuries to his head, the back ofhis shoulder, his arm, and his face, for which he recuperated in the hospital ward for about a week. Medeirosfledhis cell and reported the incident to deputies. Medeiros immediately identified Romero as oneof his assailants in a photo line-up. (50 RT 7375-7389, 7391-7396.) Romero’s Assault On Walter Jutras On October6, 1993, Romeroassaulted Walter Jutras, an inmate recently transferred to Romero’s cell block. Jutras hadlosthis trustee status*”, but was still in the green jumpsuit worn bytrustees instead ofthe orange jumpsuit worn by most inmates. At 9:30 p.m. on October 6", Jutras was sleeping in his cell, when Romero cameinside along with another inmate. Romeroputhis knee on 34. Trustees are inmates afforded special housing and jobs within the jail. Sometimes, other inmates consider trustees in a negative light because trustees are seen as non-sworn staff and often worked closely with deputies. (50 RT 7412.) 58 Jutras’ neck, hit him repeatedly, and demanded to know why Jutras was returned to the cell block. Romero andhis cohort believed Jutras could be an informant. After the menleft his cell, Jutras notified the deputies ofthe assault and askedto betransferred to another cell block. (50 RT 7399-7404, 7409- 7412.) Romero’s Assault On Olen Thibedeau On June 12, 1994, inmate Olen Thibedeau, who was awaiting trial on child molestation charges, was transferred to Romero’scell block. At 9 p.m. on hisfirst day in the cell block, Thibedeauleft his cell to take a shower and havehis half-hour of solo day room time. Therest ofthe inmates were housed in their cells. As Thibedeau walked past Romero’s cell, Romero asked Thibedeau “real politely” to get him some hot water for coffee. Thinking Romerowasfriendly and not knowing Romero, Thibedeauretrieved the water. (50 RT 7427-7429, 7437-7444.) After Thibedeau put the water through the slot in Romero’s door, Romerocalled Thibedeau back andtried to hand him peanuts through a crack in the floor. When Thibedeau was close enough, Romero lunged at him with a makeshift spear, hitting him on the stomach. The spear, which wasa little over four feet long, was madeoutoftightly rolled newspaper with a sharpened toothbrush handle at the end. The spear came apart when Romero lungedat Thibedeau and thus only caused a scratch on Thibedeau’s stomach. Romero seemed angry that the spear came apart and because he had not drawn blood. Romero said, “Son of a bitch,” and the inmate next door told Thibedeau, “We’re going to get you wherever you go.” Romerotossedthe spearoutofthe cell, and Thibedeau then reported the incident and turned over the spear to deputies. (50 RT 7429-7432, 7446-7453, 7458-7460.) 59 A subsequent search of Romero’s cell uncovered two razor blades and some torn cloth strips. Deputies also discovered an apple on the floor in front of Romero’s cell, which had four to five holes in it matching the tip of the makeshift spear. (50 RT 7461-7464.) In a subsequentjail visit, Romero told the mother of his child that if authorities housed him with a child molester, they should expect an assault. He described a method of attack which was nearly identical to his attack on Thibedeau. (51 RT 7517-7519, 7522-7523; Exh 435-A.) Romero’s Assaults On Tyreid Hodges From September 1994 through March 1995, Romero repeatedly harassed and assaulted fellow inmate Tyreid Hodges. Atthe time they were housed in the same cell block, Hodges was facing trial on several charges of child molestation. Romero often madereferences to Hodgesbeing a child molester andthat people like him did nothaveanyrights in the day room. Romero said he would “take [Hodges] out” if it was up to him. In the six or seven months they were housedin the same area, Romero threw urine and feces at Hodges, flooded Hodges’ cell by plugging up the shower, and assaulted Hodges with varioustoiletry items. (51 RT 7502-7511.) In one instance, as Hodges walkedby to take a shower, Romero threw urine at him througha slotin his cell door. Another time, Romeroput feces in a milk carton, placed the opening of the milk carton under Hodges’ cell door, and stomped onthe end so feces splattered onto Hodges’feet and jumpsuit. Romero also squirted hot urine under Hodges’ door on another occasion. Romero said he would keep uphis attacks until Hodges asked to be movedto another housing unit. Romero seemedto “haveit out for [Hodges]” more than other inmates. (51 RT 7503-7508, 7514.) 60 Romero’s Shank Possessions On October 27, 1993, Romero requested a transfer to another housing unit. During the transfer, deputies conducted a search of Romero andhis property. When the deputies asked Romero to put his property box on the ground and empty his pockets, Romero removed something very quickly and tossedit into the box. The item wasa toothbrush that was sharpened to a point on the handle end. Deputies also found a hairbrush in Romero’s property box that was cracked and sharpenedto form a point at the handle. (51 RT 7495- 7499.) On September3, 1994, during a routine search ofRomero’s cell, officers found a shank taped to the underside of Romero’s bunk bed. The shank was a pencil with a razor blade embedded near the lead tip and could have been used as a slashing or stabbing weapon. (50 RT 7416-7421.) On October 29, 1994, during another routine search of Romero’scell, officer found a shank behind Romero’s bookcase. The shank was madeout of a six-inch toothbrush, with two razor blades melted into the handle of the toothbrush and formedinto a point. Plastic was wrapped around the brush end of the toothbrush, forming a handle. Out ofthe shanks foundbyofficers in the normal course of business, this shank was one of the more sophisticated and wascapable ofcutting or stabbing. (51 RT 7484-7489.) Self’s Assault On Richard Reyes On July 22, 1994, Deputy SheriffAlfonso Campa was workingas a tank officer at the Riverside County Jail. At around 5 p.m., he heard an inmatecall for help from Cell 5. Whenhearrived atthe cell, inmate Richard Reyes was standing at the bars and appeared nervous, shaken, and scared. Reyes was bleeding from his lip and gum, had red marks on his face, was missing some front teeth, and had a puncture woundto his lip. (51 RT 7550-7553, 7562.) 61 Deputy Campa removed Reyesfrom the cell for medicalattention, then checked the other inmates’ knuckles for visible signs ofbeing in a fight. Self hesitated in approachingthe officer for the knuckle check, but whenhedid, Deputy Campa immediately noticed Self?s red and bleeding knuckles. One knuckle had a small puncture wound. Theother inmates in Cell 5 had no marks on their hands, and Reyes also had no redness to his knuckles. Deputy Campa pulled Self out of Cell 5, and subsequently interviewed Reyes. Reyes informed Deputy Campathat the attack occurred just as he puthis food tray by the cell door. When he turned around after doing so, he was hit approximately four times in the face. Reyes told Deputy Campathat the assault happenedsofast he did not see who hit him and hedid not desire prosecution. (51 RT 7554- 7562.) Twodays after Self’s assault on Reyes, Self had a jail visit with his mother Maria Self. During their tape-recorded conversation, Self told Maria that he hit an inmate on the mouth andbusted out twoofhis teeth. Self said the inmate wasin jail for spousal abuse, and he did not wantthe inmateinhiscell. (51 RT 7575-7578; 453SCT 13087-13088.) Self’s Assault On Oswaldo Vasquez On June 24, 1993, inmate Oswaldo Vasquez was playing dominoesin inmate David Valenzuela’s cell when Self and another inmate approached them. Self and the other inmate asked Vasquez to give them a back massage. When Vasquezrefused, Self threatened him with a pencil, saying if Vasquez did not give him a massage, he would stick the pencil in Vasquez’s neck. Fearing Self, Vasquez gave Self a back massage. (51 RT 7662-7664, 7669- 7670.) After the massage, Selftold Vasquezto suckhis penis, using the Spanish word “mamon.” Vasquez refused and tried to leave the cell, but Self and his 62 cohort blocked Vasquez’s exit. Self and his cohort then hit Vasquez on the back, stomach, andface, leaving Vasquez bleeding from his eyebrow. When Vasquez began bleeding, Self and the other inmatesleft the cell. They told Vasquez notto tell anyone or something worse would happento him. (51 RT 7665-7667.) Whena deputy approached Vasquez about the cut over his eye, Vasquez told the deputy he hit himself on his bunk bed, but when pressed, Vasquez ultimately reported Self’s assault on him. At a photo line-up, Vasquez identified Self as one ofhis assailants. (51 RT 7667-7668, 7674-7682.) Self’s Assault On Mario Garcia Pescador On May 30, 1994, Self assaulted fellow cell mate Mario Garcia Pescador. Garcia had only beenin the cell with Self for approximately five to ten minutes, when Self hit him in the face with a closed fist. Self, along with two other inmates, jumped Garcia for no apparent reason andhit him a couple of times before Garcia lost consciousness for a few moments. Garcia then called for help and deputies arrived to pull Garcia out of the cell. Garcia was bleeding from his face and appeared nervous and shaken. In a photoline-up, Garcia identified Self as the inmate who hit him first, as well as two other inmates whoparticipated in the assault. Garcia ultimately received six stitches to close the cut overhis left eye. (51 RT 7606-7621.) Self’s Assault On Jacob Aramburo On June 5, 1994, Deputy SheriffManuel Correa was workingas a tank officer at the Riverside County Jail. At around | a.m., he heard an inmatecall for help from Cell 5. When he arrived at the cell, inmate Jacob Aramburo was curled up in fetal position next to the cell door and sobbing. Aramburo had a small cut on the back of his head, pain in his left shoulder and lowerback, 63 swelling onthe right side ofhis face, and scrapes to his neck and chest. (51 RT 7564-7568.) Deputy Correa removed Aramburo from the cell and performed a knuckle check on the remaining inmates,including Self. All of Self’s knuckles were red, and he had a fresh cut on the knuckle of his right middle finger. Another inmate, Christopher Navarez,also had red knuckles, but no cuts. No other inmates had any rednessorinjury to their knuckles. When Deputy Correa interviewed Aramburo, Aramburo claimed hefell off his bunk and declined ~ prosecution. (51 RT 7566-7572.) Self’s Shank Possessions On September19, 1993, during a routine search of Self’s cell, officers found a handmade weapon in Self’s personal property box. The shank consisted of a six- to seven-inch toothbrush that was filed down onthe handle end to an extremely sharp point, and was capable ofbeing usedas a stabbing weapon. (51 RT 7647-7656.) On November 25, 1994, officers conducted an unscheduledsearch of Self’s cell. Ina prior search,officers discovered that a large section of a plastic cup was missing from Self’s cell, and officers performed the spotsearch in an attempt to uncover the missing piece of plastic. In the course of their spot search, officers found three handmade weaponsin Self’s cell. First, officers found a concealed shank tapedto the underside of Self’s bed rail. The shank was a pencil with a sharpened paperclip attached to the lead end, and was capable of being used as a weapon. The paperclip was affixed to the pencil with tightly-woundstring,and the sharpenedportion ofthe paperclip extended oneinch past the tip of the pencil. Second,officers found the missing piece from the plastic cup, which was made into a puncture weapon and taped underneath the bed rail. The plastic piece was 2.3 inches long and 1 inch wide, 64 and one end wassharpenedto a point. Third, officers found a sharpened pork chop bone underneaththetoilet. The bone was approximatelyfive incheslong, ground downto a very sharp point at one end, and capableofpenetration. (51 RT 7632-7642.) Self’s Prior Violent Conduct While In High School On May22, 1992, while he was a student at Valley View High School in Moreno Valley,Selfattacked fellow student Milton Solorzano in the school cafeteria. Prior to this incident, Solorzano and Selfhad given each other dirty looks and exchanged words, but the confrontations were never physical. As Solorzano stood in the lunch line on May 22", Self charged toward him. Solorzano moved out of the way, and Self hit his head against the wall. Solorzanoheld Self in a headlock until schoolstaff arrived. Duringthis time, Self swung at Solorzano with his fists, saying “I’m going to get you. Let me go.” Self struggled as he was led awaybythe staff. (51 RT 7540-7549, 7625- 7631; 45 3 SCT 13090-13094.) Defense Evidence In Mitigation Appellants presented evidenceoftheir dysfunctional family, childhood abuse, and parental neglect, including the testimony of appellants’ mother MariaSelf, brother Anthony Self, aunts Carmen Burrola and Peggy Lopez, and cousins Mona Quezada, Corinna Leon, Catherine Mejia, Richard Torres, and Sheila Torres. Romeroalso presented evidence ofhis prior good character and attempts to improvehis life, while Selfpresented evidence ofhis artistic ability. MariaSelf testified to the upbringing of both appellants, who are her children through herfirst marriage to Orlando Romero, Sr. Maria married Orlando Romero, Sr., when she was 17 years old, and they were married about six years. Duringthat time, they had four children, Anthony, Gene (appellant 65 Romero), Timothy, and Chris (appellant Self). In her testimony, Maria claimed OrlandoSr. was an alcoholic, drug user, and philanderer, and that she got drunk and used narcotics as well. However, Maria neverused drugs or smoked while pregnant. Mariatestified that she and Orlando Sr. used drugsin front of the children, and OrlandoSr.often beat her in front of them. Maria claimed she pushed andhit her children, did not want them around, and never showed them any affection. She could only recall one instance where Orlando Sr. was abusive with the children, where he pushed Anthony into a wall when he was drunk. Maria believed she was harder on Romero than the other boys because Romero lookedlike Orlando Sr., whom she hated. Dueto the family situation, Maria often left the children with either the maternal or paternal grandparents or with her sisters, who were kind andcaring to the boys. Even when things were badat home,the boys always had enoughfood andclothing, and received support and attention from her family. (52 RT 7697-7708, 7719-7720, 7748, 7161-7762, 7793-7794, 7820-7823, 7826, 7828, 7837, 7844-7846.) Just before Self was born, Maria left OrlandoSr.andfiled for divorce. Romero was between two andthree years old at the time. For the next six years, Mariatestified that the family moved arounda bit, she dated several different men with abusive and addictive personalities, and she continuedto use drugs and abuseherchildren. In one incident, Maria claimed she hit Romero in the head with a belt buckle, causing him to bleed profusely. Another time, one of Maria’s boyfriends madeSelfsit in the corner with feces on his head after he messed his underwear. In another incident, Maria had a “nervous breakdown” and hit Self’s face with a fly swatter, prompting Maria to turn herself into the Department of Mental Health and obtain assistance with the children. The children were removed from Maria’s care for a year and a half; Self and Timothy lived with Maria’s mother, and Romero and Anthonylived 66 with her sister Carmen. (52 RT 7708-7713, 7716-7717, 7725-7727, 7739- 7740, 7750-7751, 7787-7789, 53 RT 7914.) Mariatestified that after the children were returned to her care, she continued her drug use and ignoredthechildren,until she met Phillip Self about a year or twolater. (52 RT 7713-7729.) Selfwas 5 years old and Romero was about 8 years old when she married Phillip and established a stable household. Phillip was very good to her and treated Maria’s children as his own. He provided a loving, non-abusive homeforthe boys, and fathered two daughters with Maria. Phillip was “the best thing that ever happened”to them, and Maria quit drinking and using drugs. Maria becamea bilingual teachersaide, which she enjoyed becauseit allowed her to work with children and help them learn. The boys were taughtto be polite and well-mannered,notto fight, to stay away from drinking and drugs, and to do their homework. Appellants were “very bright andintelligent,” but did not put the effort into it. Maria often helped them with their spelling because it was herfavorite subject. All four sons went to church and through First Communion. (52 RT 7749, 7754-7756, 7762-7768, 7800; 53 RT 7915, 7920-7921, 7923.) When Romero turned14 years old, he wantedto live with his father and Maria let him go. Maria did not think it was a good idea, but she wanted Romero to learn to make his own decisions. It hurt Maria to have Romero living with his father, someone who “really doesn’t care about him,” and “all [she] could do was cry.” When she learned Romero wasgetting involved in drugs, Maria talked to him aboutit, tried to get him into a teen drug program, and told him she would help him in “every way” she could. (52 RT 7769- 7775.) Romero now has a son of his own, and Maria has never seen Romero be anything but loving toward his child. (52 RT 7723-7724.) Similarly, Self also wanted to get to know his father when he turned 14 years old. Again, Maria “thoughtit was only fair and right to give him a chance 67 to seewhat his father waslike” and let him go. Self quickly moved back home, but shortly thereafter, Maria discovered Self was using drugs and alcohol. Maria enrolled Self in a rehabilitation center, switched his high school, and home schooled him, but he continued to use drugs. (52 RT 7775-7782.) In contradiction to her‘trial testimony, Maria previously told defense investigator Robin Levinsonthat although she wentouta lot, she never used drugs around her children andalwaystried to find babysitters. Maria saidthat although she may havehad a drink or two around the children, she did recall evergetting “plastered”in front ofthem and attempted to “shield” her children from such behavior. (52 RT 7761, 7783; 53 RT 7936-7937.) Maria also told 3 ce Levinson that Romero’s “attitude was very bad,” “he never wanted to take responsibility for anything that he did,” and always blamed things on others even when it was obvious he wasthe one responsible. (53 RT 7940-7941.) Maria’s sister Carmen Burrola, who took care of Romero and Anthony after Maria’s “nervous breakdown,”testified that Romero was a “very good boy,” “kind,”“polite,” and had no bad marksin school during his stay with her. Romerostayed with her for nearly two years until Maria got well and wanted her children back. She confirmed that Orlando Sr. was a drunk whooften did nothing, and Maria’s homelife with Orlando Sr. was “awful.” However, Burrola never saw Maria abuse the boys. When Romero and Anthonylived with her family, she treated the boys like her own children and her husband particularly took to them, treating the boys with trips to amusement parks and to the mountains. Burrola confirmedthat Phillip Self was a “very good man” and “very patient” with the boys. Anthony, whois a non-commissionedofficer in the U.S. Army,later told Burrola he thoughtvery highly of Phillip andalso thanked Carmen for the good advice she gave him. Appellants’ brother Timothy was also a non-commissionedofficer in the U.S. Army,serving in Bosniaat the time oftrial. Burrola was “very surprised” and “very sad”that 68 Romero was charged with murder because he was always “respectful” and “a good boy.” (52 RT 7787-7800.) Appellants’ cousins Mona Quezada, Corinna Leon, Catherine Mejia, Richard Torres, and aunt Peggy Lopez, confirmed that Maria’s life with Orlando Sr. was a “mess” and that Orlando Sr. and Maria did not provide a stable homefor her children. Despite this, Romero wasa “happy baby”and,as a child, seemed to have a good relationship with his brothers. Self never experiencedlife with Orlando Sr. because Maria divorced OrlandoSr.before he was born. Maria continued to show inattentiveness to her children’s well- being after divorcing Orlando Sr. Accordingly, both during her marriage to Orlando Sr. and thereafter, Maria often left her children in the care of their grandparents. The grandparents were “very good” to Maria’s boys, both loving andstrict. They also universally described their shock at Romero’sarrest for murder,calling his conduct“out ofcharacter” from what they knew ofhim. To these family members, Romero was a “good boy” and “respectful.” Romero also seemedto be a goodfather to his son Kevin. (52 RT 7818-7831, 7836- 7846, 7848-7853; 53 RT 7866-7869, 7894.) Appellants’ cousin Sheila Torrestestified consistently with Maria Self’s account of appellants’ childhood. Torres testified that Maria often left the children completely unattended, “ran around” with a lot of men after her divorce from Orlando Sr., and had a drug problem. She also said Maria was meanto her children and always punished them or demeaned them,especially Romero. Torres did not agree with the other witnesses regarding Phillip Self’s positive influence on the boys,believing Phillip was not “very helpful” as a stepfather. Torres wasprimarily raised by the same grandparents whotookcare of appellants. Despite a difficult upbringing, Torres worked hard, graduated from college, and became a Deputy Labor Commissioner. (53 RT 7893-7911.) 69 Appellants’ older brother Anthony Self likewise described Maria’s violent temper and relationships with men. In particular, Anthony singled out Maria’s boyfriend Bobby Guzman whowas particularly hard on appellant Self, one time making Self stand with dirty underwear on his head for two hours. However, Anthony described Phillip Self as the “best man” to Maria, “very good”to the boys, helpful, and supportive. Although Orlando Sr. was his biological father, Anthony considered Phillip his father and ultimately took his last name,like appellant Self. Anthony described Mariaasstrict, warning them against drugs and alcohol and encouraging them to do well in school. And despite the positive changes with Phillips’ presence, Maria was still prone to violent outbursts. (53 RT 7912-7915, 7917, 7919-7921, 7923, 7925.) Anthonytestified that the older brothers, including Romeroand himself, would send Self acrossthestreet to fight a neighbor boy named Allen and “see what [Self] could take.” This started while Selfwas in elementary school and continued “for years.” Like appellants, Anthony experimented with alcohol and drugs, but did nottell his parents because he knew they would bevery upset. Onetime, when his mother discovered alcohol missing from the liquor cabinet, Anthonylet Selftake the blame, although it was Anthony whotookthe alcohol. Anthonyenlisted in the Army at age 18, re-enlisted at 22 years old, obtained supervisory positions, and cleared minefields during Operation Desert Storm. At thetimeoftrial, he was stationed in North Carolina, and wanted to help his brothers in “any way” he could. (53 RT 7912-7913, 7916-7919, 7921-7922, 7923-7925.) Romero’sfriend Christine Arrabito and Arrabito’s mother Janice Babish testified to Romero’s five-month stay with their family in the summerandfall of 1991. Romero knew Arrabito from high school and remained friends with her thereafter. In the last week of July 1991, Arrabito’s family movedto the Bay Area. Romero asked to join them so he could make a fresh start and turn 70 his life around. Romero felt he could best accomplish this outside of the Riverside area. Arrabito’s family allowed Romeroto join them, with Romero agreeing to pay his share ofthe rent and pay for his own expenses. (53 RT 7871-7874, 7878, 7881-7882, 7884-7885, 7888.) During his stay with Arrabito’s family, Romero would land new jobs, brag about his stellar performance, and then suddenly lose the job. Romero would also claim to bestill working at a job even after he wasfired. After five months, Arrabito’s family asked Romeroto leave their home, as he was not paying his share of the bills and had amassed a $300 phone bill. Romero promisedto pay the phonebill after he left, but he never did. Arrabitofelt that her family gave Romero a chance buthe “misusedit,” “blew the trust apart,” and “took advantage ofthem.” Arrabito’s family gave Romero a chance for a fresh start but “he blew it.” (53 RT 7873-7878, 7882-7883, 7886-7890.) Arrabito recalled that in high school, Romero oncetold her he used to steal expensive cars by watching where people parked them,staking the area out for awhile, confirming which cars had alarms, and stealing them when the owners were not around. (53 RT 7878-7879.) She confirmed that she once told a defense inestigator that Romero was“real goodat stabbing people in the back.” (53 RT 7879-7880.) Selfpresented evidenceofhis artistic ability. While in high school,Self assisted in painting a mural at Paloma Valley High School to honor a teacher whopassed away. Selfvolunteered during and after schoolto create the mural. According to his art teacher Margaret Louie, Self was a “very talented, very motivated” art student, and submitted his artwork for other school projects, including for school logos and to the schoolliterary magazine. Louie gaveart supplies to Self’s defense counsel while Selfwas in jail awaitingtrial, and Self created several pieces of artwork, which were shownto the jury. (52 RT 7802- 7805; 53 RT 7859-7864.) 71 ARGUMENT I. THE TRIAL COURT APPROPRIATELY DECLINED TO SEVER THE MAGNOLIA CENTER INTERIORS CHARGES(COUNTSXI & XID AND THE RECEIVING STOLEN PROPERTY CHARGE (COUNT XX) FROM THE REMAINING CHARGES Self and Romero contend the trial court abused its discretion by declining to sever the Magnolia Center Interiors charges (Counts XI & XII) from the remaining charges.” (SAOB 236-258, RAOB 314-341.) Romero separately contendsthetrial court also abusedits discretion by notsevering his receiving stolen property charge (Count XX). (RAOB 330-341.) These charges were properly joined andthetrial court did not abuseits discretion 35. Respondent will address appellants’ claims of error based on the time-line and context in which they arose during trial, beginning with pre-trial issues and ending with penalty phase claims oferror. With regard to thefirst argument presented in Romero’s Opening Brief (RAOB 82-129), Romero’s discussion fails to raise a claim oferror; rather, it merely analyzes the state of the law with regard to this Court’s assessment of penalty phase error (RAOB 82-105) and engagesin an abstract evaluation ofthe evidence presented attrial (105-129). Romero’s first argument presents no claim of error to which to respond. (People v. Stanley (1995) 10 Cal.4th 764, 793 [every brief should contain legal argument with points and authorities]; see also Cal. Rules of Court, Rule 8.204(a)(1)(B); People v. Ramirez (2006) 39 Cal.4th 398, 441, fn.8; People v. Clay (1964) 227 Cal.App.2d 87, 100 [affirmative duty of the defendants to show errorand not shift burden to court or respondent]; People v. Goodall (1951) 104 Cal.App.2d 242, 249 [same].) Because it is unproductive to evaluate the evidence withoutreference to a claim oferror, respondent will set forth the applicable standard of review and relevant evidence within the context of each claim raised by appellants. As will be demonstrated throughout respondent’s brief, the prosecution’s guilt- and penalty-phase evidence against appellants was overwhelming, there was no error, and even assumingerror,it was harmless even under the most stringent of applicable standards. 72 when it declined severance. Appellants also cannot establish they were prejudicedor any gross unfairness from thetrial court’s decision. In movingpapersfiled beforetrial, Self asked thetrial court to sever the capital murder charges from all other non-capital counts. Self contended that joinder of the capital crimes and non-capital crimes prejudiced him and underminedhisrightto a fair trial and dueprocess on the capital charges. (6 CT 1216-1222.) At the severance hearing, Romerojoined in Self’s motionto sever. (29 RT 4683.) After discussing the relevant legal precedent, the trial court determinedthat, except as to Counts XI and XII involving the burglary and vandalism ofMagnolia CenterInteriors,all of the crimes were ofthe same class, the evidence was cross-admissible, there was no incident significantly moreorless inflammatory than the others,all ofthe charges were supported by substantial evidence, and it would waste judicial resources to try the counts separately. (29 RT 4685-4691.) As to Counts XI and XI, the court found that while these crimes werenotofthe sameclassasthe othercrimes, they wereall linked together by a “common elementof substantial importance,”to wit, the felonious intent to obtain property, and they were not significantly less inflammatory or weaker in evidentiary strength than the other charges. The court then denied appellants’ motionto sever. (29 RT 4691-4692.) Appellants claim the Magnolia Center Interiors charges (Counts XI & XIDandreceiving stolen property charge (Count XX) were unlawfully joined with the remaining charges, andin the alternative, they claim the trial court abusedits discretion when it declined to sever Counts XI, XII, & XX. (SAOB 236-258, 492; RAOB 314-341, 596.) Appellants’ claims are wholly without merit. 73 A. The Magnolia Center Interiors Charges (Counts XI & XII) And Receiving Stolen Proper Charge (Count XX) Were Properly Joined “The law prefers consolidation of charges.” (Peoplev. Ochoa (1998) 19 Cal.4th 353, 409.) Joinder of criminal charges reduces the delay in the disposition of criminal cases, obviates the need to select an additional jury, avoids the waste of public funds, and conservesjudicial resources. (Peoplev. Mason (1991) 52 Cal.3d 909, 935; People v. Bean (1988) 46 Cal.3d 919, 939-940.) Whenevera defendantis tried for multiple crimesofthe sameclass, the jury necessarily will be presented with evidence that the defendant committed multiple offenses. However,this is not a reason in andofitself to renderjoinder improper;rather, the danger to be avoided in joinder of offenses is that strong evidenceof a lesser but inflammatory crime might be used to bolster a weak prosecution case on anothercrime. (People v. Mason, supra, 52 Cal.3d at p. 935.) Where offenses charged are “connected together in their commission” or “of the same class,” joinder is proper. (Pen. Code, § 954; People v. Mandriquez (2005) 37 Cal.4th 547, 574; People v. Kraft (2000) 23 Cal.4th 978, 1030.) Moreover,offenses "committed at different times and places against different victims are nevertheless connected together in their commission when they are... linked by a common elementofsubstantial importance ." (People v. Mendoza (2000) 24 Cal.4th 130, 160, quoting People v. Lucky (1988) 45 Cal.3d 259, 276[internal quotations and citations omitted].) This Court has found joinder proper where, as here, a defendant engagesin a crime spree and the “elementof intent to feloniously obtain property runs like a single thread throughthe variousoffenses. ...” (People v. Mendoza, supra, 24 Cal.4th atp. 160 [kidnapings,robberies, rape, murder, and burglaries occurred during two- day crime spree andall involvedtheintentto illegally obtain property] [internal citations and quotations omitted]; People v. Lucky, supra, 45 Cal.3d at p. 276 74 [six robberies properly joined with a robbery-murder charge because of common elementof intent to feloniously obtain property and crimes’ shared characteristics]; People v. Chessman (1959) 52 Cal.2d 467, 492 [simple robbery and robbery-kidnaping charges properly joined with robberies involving rape and oral copulation because one-monthcrime spree involved commonthread of intent to feloniously obtain property.) Appellants attemptto distinguish the instant case from this long line of precedent by minimizing the extentoftheir crime spree and mis-characterizing their criminal intent and conductwith regard to the Magnolia CenterInteriors charges. (RAOB 319-322; SAOB 249-250, 492.) Specifically, Romero insinuates he merely “vandalize[d] a business . . . incidentally [found] some trinkets attractive and walk[ed] off with them”and that the Magnolia Center Interiors crimes had no commonfactors with the other crimes other than the sameperpetrators and time frame. (RAOB 321-322.) Review ofthe record confirmsthetrial court’s finding thatin fact all of appellants’ crimes, including Counts XI, XII, and XX, displayed the common elementofintent to feloniously obtain property and occurred amidst a prolific crime spree, wherein appellants kidnaped, carjacked, robbed, and/or shotnearly a dozen victims in a two-month period. The burglary and vandalism of Magnolia Center Interiors (Counts XI and XII) did not simply entail the destruction of property and taking of “trinkets.” Rather, it is clear appellants broke into Magnolia CenterInteriors with the intent to take valuable property from the store, as evidenced by their repeated attempts to open the store’s antique safe. Appellants wore down screwdrivers and othertools in their efforts to open the safe, yet only managedto pry off the combination lock and damagethe safe’s hinges. Having not been successful in obtaining valuable property, appellants stole several less valuable items as consolation prizes, 75 leaving behindthreatening graffiti and extensive damageto the store” Thus, the Magnolia CenterInteriors charges bore the same felonious intent to obtain property as appellants’ other crimes. Likewise, the receiving stolen property charge (Count XX) involved Romero’s knowing, intentional, and felonious obtainment of the ammunition pouch Self stole from Feltenberger. Accordingly, Counts XI, XII, and XX werepart and parcel of appellant’s crime spree involving the commonthreadofintentto feloniously obtain property, and the charges were thus properly joined. B. The Trial Court Appropriately Declined To Sever The Charges Whenthestatutory requirements for joinder are met, as they were here, the trial court may sever counts only on a defendant’s “clear showing of potential prejudice.” (People v. Stanley (2006) 39 Cal.4th 913, 933; People v. Ochoa, supra, 19 Cal.4th at p. 409.) Prejudice is not assumed; instead, the defendant mustclearly establish a substantial danger ofprejudice- prejudice so great as to deny a fair trial and outweighing countervailing considerations. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1243.) A trial court’s denial of a motion to sever charges is reviewed for an abuseofdiscretion,that is, whether the denial fell “outside the bounds of reason.’”” (People v. Carter (2005) 36 36. Burglary has also been recognizedto be, like robbery, a property- related crimeentailing danger to humanlife, and thus,it could be argued that appellants’ crimes were not only connectedin their commission butalso ofthe sameclass: "Burglary laws are based primarily upon a recognition of the dangers to personal safety created by the usual burglary situation the danger that the intruder will harm the occupants in attemptingto perpetrate the intended crime or to escape and the danger that the occupants will in anger or panic react violently to the invasion, thereby inviting more violence. The laws are primarily designed,then, notto deter the trespass and the intended crime, which are prohibited by other laws, so muchasto forestall the germination of a situation dangerous to personal safety." (People v. Gauze (1975) 15 Cal.3d 709, 715.) 76 Cal.4th 1114, 1153, quoting People v. Osband (1996) 13 Cal.4th 622, 666.) Therulingis also reviewedin light of the record before the court at the time of the motion. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1120; People v. Arias (1996) 13 Cal.4th 92, 127.) However,evenif the trial court’s ruling was correct at the time it was made, the judgment of conviction must be reversed if a defendant shows the joinderactually resulted in “gross unfairness,” amounting to a denial of due process and a fairtrial. (People v. Stitely (2005) 35 Cal.4th 514, 531.) Buta defendantbears a heavy burden to demonstrate joinder of offenses renderedhis trial fundamentally unfair. (People v. Ochoa, supra, 19 Cal.4th at p. 409.) The United States Supreme Court has held that “[i]mproper joinder doesnot, in itself, violate the Constitution. Rather, misjoinder. . . rise[s] to the level of a constitutional violation only if it results in prejudice so great as to deny a defendanthis . . . right to a fair trial.” (United States v. Lane (1986) 474 U.S. 438, 446,fn.8 [106 S.Ct. 725, 88 L.Ed.2d 814].) Reversal for improperjoinder is unwarranted unless, to a reasonable probability, the defendant would have received a more favorable result in a separate trial. (People v. Avila (2006) 38 Cal.4th 491, 575.) In Williams v. Superior Court (1984) 36 Cal.3d 441, this Court set forth several factors to be considered in deciding whether charges should be severed: (1) the lack of cross-admissibility of evidence; (2) the prejudicial effect of joining a highly inflammatory charge with a non-inflammatory charge; (3) the prejudicial effect ofjoining a weak case with a strong case; and (4) whetherthe People sought to join a non-capital charge with a capital offense. (/d.at p. 452.) When examining these factors, the burden remains on appellants to clearly establish a substantial danger of prejudice. “While we have held that cross- admissibility ordinarily dispels any inference ofprejudice, we have never held that the absence of cross-admissibility, by itself, sufficed to demonstrate 77 prejudice.” (People v. Mason, supra, 52 Cal.3d 909, 934; accord People v. Stitely, supra, 35Cal.4th at pp. 531-532.) Further, the ‘“joinder of a death penalty case with non-capital charges does not by itself establish prejudice.” (People v. Marshall (1997) 15 Cal.4th 1, 28.) Asthis Court further explained in People v. Ochoa (2001) 26 Cal.4th 398 [ “Ochoa IT’), Wedevelopedcriteria to guide evaluationsoftrial court decisions on severance motions. Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are . unusually likely to inflame the jury against the defendant; (3) a “wea ” case has been joined with a “strong”case, or with another “weak”case, so that the “spillover” effect of aggregate evidence on several charges might well alter the outcome of someorall of the charges; and (4) any oneofthe chargescarries the death penalty or joinder ofthem turnsthe matter into a capital case. Cross-admissibility of evidence is sufficient but not necessary to deny severance. Asthe four-part test is stated in the conjunctive, joinder maybe appropriate even though the evidenceis not cross-admissible and only one of the charges would be capital absentjoinder. Even where the People present capital charges, joinder is proper so long as evidence of each charge is so strong that consolidation is unlikely to affect the verdict. (Ochoa II, supra, 26 Cal.4th at p. 423 [internalcitations and quotations omitted].) 1. The Evidence Was Cross-admissible The Magnolia Center Interiors charges and Romero’sreceiving stolen property charge presented cross-admissible evidence with the remaining charges. With regard to Magnolia CenterInteriors, keys and otheritems stolen from the store were found during a search ofappellants’ grandmother’s house, along with property stolen from Feltenberger, Steenblock, Greer, and Jerry Mills. (32 RT 4960, 34 RT 5321-5322, 5375-5377, 35 RT 5399; 27 RT 5655- 78 5663, 5667-5669.) Shoeprints resembling the “British Knights”prints found at the Mans-Jones and Feltenberger crime scenes were also found in thefire extinguisher dust at Magnolia CenterInteriors, thus further establishing Self’s actual participation in the burglary and vandalism. (34 RT 5354-5355, 5362- 5375; 1 SCT [Exhs.] 45-46.) The threatening graffiti written on the walls of Magnolia Center Interiors resembledthe graffiti written on a British Knights shoe box recovered from Self’s Oldsmobile and an empty briefcase bearing Self’s first name recovered from the trunk of the Colt. (32 RT 5039-5041, 34 RT 5365-5373; 37 RT 5687-5688; 1 SCT [Exhs.] 15-16, 100-103, 319-320.) Furthermore, the graffiti’s threatening nature tended to undercut appellants’ attemptsattrial to paint Munoz, whodidnotparticipate in the Magnolia Center Interiors burglary, as the violent ringleader in the murders and robberies, and instead displayed appellants’ shared intent to steal property and harm people. Thus, there was more than substantial cross-admissibility of evidence between the Magnolia CenterInteriors charges (Counts XI & XII) and the remaining counts. With regard to Romero’s receiving stolen property charge,it is clear that this crime shared cross-admissibility with not only the Feltenberger robbery- shootingitself, but also with the other murders and robberies. First, evidence detailing the Feltenberger robbery-shooting was cross-admissible with Count XX to prove that the ammunition pouch Romeroreceived wasactually stolen from Feltenberger and Romero possessedthe property knowing it was stolen.” Second, evidence of Romero’s knowing and active participation in the other robberies and murders was cross-admissible with Count XX because such evidence tended to prove Romero knew the ammunition pouch wasstolen and negated any defense of innocent receipt. Third, the stolen ammunition pouch was recovered among the weapons Romerostole from Jerry Mills, and at the 37. See Respondent’s ArgumentIV, infra. 79 time ofits recovery, the pouch contained two .45 caliber bullets that could have been used in Mills’ .45 caliber Colt pistol. (35 RT 5390-5400; 37 RT 5636- 5653; 38 RT 5728-5729.) Fourth, Romero’s suggestion to “take [Feltenberger] out” once he heard Feltenberger was alive not only proved he knew the ammunition pouch wasstolen; but also undercut his defense that Munoz was the group’s ringleaderin therest ofthe crimes. (39 RT 6022-6023; 45 3 SCT 13008.) Fifth and finally, physical and eyewitness identification evidence supported Munoz’s accountof both the Feltenberger shooting and Romero’s receipt of the stolen ammunition pouch, thereby significantly bolstering Munoz’s credibility and his testimony concerning the remaining charges. In sum, the evidence supporting each crime wasinextricably linked to the other crimes and created a web ofevidence proving appellants’ guilt. With this cross-admissibility of evidence, appellants cannotestablish prejudice. 2. The Charges Were Unlikely To Inflame The Jury The burglary, vandalism, and receipt of stolen property counts are certainly not “highly inflammatory,” especially in light ofthe numerous murders and robbery-shootings charged against appellants in the other counts. Despite this, appellants claim the details of the Feltenberger robbery, as well as the threateninggraffiti and defacement of the sonogram in the Magnolia Interiors incident, were “so inflammatory, [they were] likely to suffer unfair prejudiceat ajointtrial which included those charges.” (SAOB 248, 254; RAOB 327-332.) This is simply untrue. As recognizedbythetrial court in this case, although the graffiti and sonogram defacementcanbe considered inflammatory, this evidence is no more inflammatory, and is indeed much less inflammatory, than the gruesome accounts of appellants’ murders and attempted murders of a half-dozen innocent people. (29 RT 4691-4692.) The same can besaidfor the receiving stolen property charge. The juries heard how Romero shot an unsuspecting 80 Mansinthe back, Self chased down Jones and shot him fourtimes in the head and neck, and Self shot Aragon eleven times while Romero asked the victim how it felt. It is utterly implausible that the juries were inflamed by threatening graffiti and defacement of a sonogram photographinlight ofthis incredibly powerful evidence.Itis likewise implausible that Romero’s jury was inflamed by his receipt ofFeltenberger’s stolen ammunition pouchandthe circumstances surrounding Feltenberger’s shooting when they knew Romero personally participated in the murdersofthree innocent young men. Indeed, Romero does not address the fact that his jury acquitted him on two counts. (Count XIII [Steenblock], Pen. Code, § 209, subd. (b); Count XIV [Steenblock], Pen. Code, § 211). (8 CT 1724-1732, 1786-1835.) This fact alone is compelling evidence that the Romerojurors were not unduly inflamed, took their oaths seriously, and weighed the evidenceas to each countindividually. Finally, as also recognized by thetrial court, the real danger to be avoided by joining inflammatory offenses with non-inflammatory offenses is that strong evidenceofthe inflammatory charge mightbe used to bolster a weak case of a non-inflammatory crime. (People v. Mason, supra, 52 Cal.3dat p. 935; 29 RT 4691.) That danger, as demonstrated below, wassimply not present in the instant case. 3. Counts XI, XII, And XX Did Not Unfairly Bolster The Remaining Charges Notably, appellants do not dispute that the evidence in this case was strong as to all of the charges, and there was no danger any of the charges would unfairly bolster the others. (RAOB 325-327; SAOB 246-252.) This is not surprising. The prosecution presented overwhelming evidenceestablishing appellants’ guilt, including credible eyewitness identifications, considerable physical evidence obtained from both the crime scenes and from searches of appellants’ homes and vehicles, appellants’ damaging police interviews, and 81 Munoz’s corroborated accomplice testimony. The trial court correctly recognized that the evidence was equally persuasivein its ruling on appellants’ severance motion. (29 RT 4690-4692.) Accordingly, there was no likelihood that Counts XI, XII, and XX would unduly inflame the juries orunfairly bolster the other charges. 4. Defendants Were Not Prejudiced By Consolidation Appellants contendthetrial court failed to give due considerationto the capital nature of this case, and that by joining the burglary, vandalism, and receipt of stolen property charges, the trial court increased the likelihood that the juries wouldfind appellants ““committed three murders and deserved to die.” (SAOB 257; RAOB 328-329,333-341.) Appellants’ contentions are without merit. First, the trial court recognized, quoting from People v. Lucky, supra, 35 Cal.3d at page 277, that “[e]ven in capital cases... consolidation may be upheld on appeal where the evidenceon each ofthe joined chargesis so strong that consolidation is unlikely to have affected the verdict.” (29 RT 4690.) This case presents exactly such a situation. As previously demonstrated in Respondent’s Statement of Facts, each and every crime, including the capital charges, was supported by overwhelming evidence establishing appellants’ guilt. Thetrial court instructed the jury to find and decide each special circumstance alleged and each offense charged separately. (45 RT 6859; 46 RT 7087; 7 CT 1473, 1652.) The jury wasalso instructedits finding as to each countwasto be stated in a separate verdict. (45 RT 6859, 6864; 46 RT 7087, 7091-7092; 7 CT 1473, 1485, 1652, 1663.) And Romero’s jury wasfurther instructedthat “no evidence was presented that Mr. Romero wasinvolvedin [the Feltenberger] incident,” and “evidence [regarding this incident] is only being offered asit relates to Count XX receiving stolen property.” (46 RT 7050; 7 CT 1567.) Additionally, as discussed above,it is inconceivablethat the juries, after hearing how appellants callously murdered 82 three young men, were unduly inflamed by some threatening graffiti, defacement of a sonogram photograph,or the receipt of property stolen from yet another robbery-shooting. Indeed, Romero’s jury clearly was not unduly inflamed,as it acquitted Romero ofthe Steenblock robbery-kidnaping. (8 CT 1724-1732, 1786-1835.) Finally, with regard to the penalty phase,it is equally inconceivable that the burglary or stolen property evidence somehowtipped thescales in favor of a death verdict, when the juries were confronted with appellants’ unrelenting crimespree, extremebrutality, lack of remorse, continuing violencein pretrial confinement, escape attempts, andutter disregard for humanlife. Afterall, it was appellants who,after shooting Aragon nearly a dozen times and leaving a two-inch gaping woundin his neck,actually had an appetite and sat down for lunch at Coco’s restaurant. (35 RT 5468-5471; 39 RT 5991-6003.) Appellants’ mitigation evidence simply could not compare with the strong evidence in aggravation. While appellants presented evidence of childhood neglect and abuseearly in their lives, the same evidence also showed: they had the benefit of loving grandparents and other extended family members even during the worstof times; they had the influence of a devoted stepfather and stable family life by the time they were five (Self) and eight (Romero) years old; their mother taught them right from wrongand the value ofmanners and a good education; they were intelligent and did well in school when they madethe effort; and their brothers raised in the same household achieved success in the military and rejected the criminal path chosen by appellants. In sum,the statutory requirements ofjoinder were met, and appellants have failed to demonstrate undue prejudice, much less “gross unfairness” amounting to a denialof due process,resulting from the consolidated charges. Thetrial court did not abuse its discretion by declining severance and appellants were not denied due process from the consolidated charges. 83 Il. THE TRIAL COURT DID NOT COMMIT REVERSIBLE ERROR WHENITEXCUSED SEVERAL PROSPECTIVE JURORS FOR CAUSE BASED UPON INFORMATION THEY PROVIDED IN THEIR QUESTIONNAIRES Self contends the trial court violated his constitutional rights and committed reversible error whenit excused several prospective jurors solely on the basis of their answers to questionnaires. (SAOB 143-154, 158-196.) Self also contends the questionnaire’s single question asking prospective jurors to identify their race or ethnicity resulted in the non-representation of Hispanics on his jury. (SAOB 154-157, 189-196.) By not objecting to the question regarding race and ethnicity and bystipulating to the removal of prospective jurors based on their questionnaire responses, Self waivedhis claimsof error. In any event, there was noviolation ofSelf’s constitutional rights and no error from the court’s reliance on written questionnaires to dismiss prospective jurors for cause. On October 2, 1995, the prosecution filed a proposedjury questionnaire to be used during jury selection in appellants’ trial. (5 CT 919-949.) The proposed questionnaire asked prospective jurors, inter alia, to identify their name, age, date of birth, place of residence, race and ethnic origin, marital status, and family situation. It also asked prospective jurors to discuss their educational background, employmenthistory, contacts with the judicial system, experience with crimes of violence, knowledgeaboutthecase, abilities to be fair and impartial, abilities to deliberate and reach a verdict, and attitudes toward capital punishment. Finally, the proposed questionnaire provided an explanation sheet with space for prospective jurors to provide additional information, if necessary. (5 CT 919-949.) 84 On December 11, 1995, counsel discussed the proposed questionnaire with the trial court. (10 RT 2021.) Self objected to the use of a questionnaire, but also recognized it was within thetrial court’s discretion to do so,stating “I think the only thing the Court has to knowisthatit’s a discretionary decision. I mean,it’s clearly set out, there is no mandate requiring the Court either use or not use a questionnaire. ...” (10 RT 2021-2022.) Self’s counselindicated he would not provide a proposed questionnaire to the court because “an open forum to discussthese death penalty issues is a muchbetter way to proceed than the questionnaire.” (10 RT 2026.) Counsel believed the questionnaire was a meansfor the prosecution to identifyjurors “who have somereservations about the death penalty,” and “anybody that expresses even a minimal reservation about imposingthe death penalty will be struck by the People.” (10 RT 2026.) The prosecution countered the defense assertions, arguing the questionnaire was “indispensable to . . . protect the defendant’s rights,” and “both from a time management standpointanda fair trial standpoint,”it was “very important”to use the questionnaire. The prosecution also noted thetrial court’s statutory authorizationto use a written questionnaire, in California Code of Civil Procedure section 205. (10 RT 2023-2024, 2029-2030.) Finally, the prosecution arguedthatoral voir dire would disclose the same informationas that explored in the questionnaire, but doing it in written format would have the added benefits of increased efficiency and preventing the “perceived evils” from group voir dire(10 RT 2029-2030.) 38. The prosecution cited People v. Cudjo (1994) 6 Cal.4th 585, 627, which found that a written questionnaire was an adequate substitute for the individualized, sequestered voir dire mandated by Hovey v. Superior Court (1980) 28 Cal.3d 1, 80. Although Hovey voir dire was no longer required in light of Proposition 115, the prosecutor noted that the benefit of the questionnaire recognized in Cudjo would nevertheless benefit the process in the instant case. (10 RT 2023-2024, 2029-2030.) 85 Thetrial court allowed the use of a jury questionnaire. (10 RT 2025- 2026, 2031-2032.) Thetrial court ruled the use ofthe questionnaire was “very fair” and “beneficial to the defendants” by providing detailed information about the juror’s views, would allow the attorneys to “pinpoint those areas where they feel that they need follow-up,” and was also a time-efficient manner of conducting jury selection. (10 RT 2025-2026, 203 1-2032.) The trial court then encouraged defense counselto either submit their own proposed questionnaire or seek modifications to the prosecution’s proposed questionnaire. (10 RT 2032.) Ata hearing on January 11, 1996, the prosecution submitted suggested changes to the proposed jury questionnaire, andthetrial court discussed these suggestions andsolicited input from the defense. (5 CT 1088-1090; 10 RT 2049-2072.) While Selfrenewedhis objection to the use of any questionnaire (whichthetrial court again overruled), and Self’s defense counsel said he was “not taking any position” with respect to some ofthe proposed questions, Self also affirmatively concurred in many ofthe changes, voiced specific objections to the questions regarding the O.J. Simpsontrial, and askedthat the court add an additional page to the explanation sheet. (10 RT 2051-2054, 2060-2068, 2071.) In addition to seeking input and changes to the proposed questionnaire, the trial court also discussed the conductof voirdire, stating: [W]hatI suggestis that we spenda little bit of time in the morning before we undertake voir dire and see if we can agree together that certain ofthe jurors have stated cause to be excused andthat no further voir dire ofthose jurors need be done just based on uponthe answerthat they put into the questionnaire. I would imagine in every group we will have somejurorsthatfit in that category. Ifall of us can agree, wewill just excuse them for cause at that time. (10 RT 2054-2055.) 86 The court also emphasized: But I’m not planning personally on asking the jurors any questions about their views on capital punishmentunlessI feel for some reason that that’s necessary. But I want you to understandthatis your responsibility. I feel that the question[naire] elicits their views, if you wish to follow-up, you should do so during your one hourofvoir dire. Now,does anybody see a problem with that approach? (10 RT 2056-2057.) Romero’sattorney affirmatively expressedsatisfaction with the court’s suggested approach, and Self’s attorney did not object. (10 RT 2057.) Althoughthe defensereiterated their objection to the use of a questionnaire, they did not object to the proposed conduct of voir dire, and as will be demonstrated, they ultimately stipulated to each and every one ofthe court’s questionnaire-based dismissals. (10 RT 2054-2071.) Thefinalized 32-page jury questionnaire asked the jurors, inter alia: to identify their “race and ethnic origin,” (Question 1.D.); whether they or a close friend or relative had ever been a victim of, witness to, or accused of a crime (Questions 17-19); to describe anypriorjury service (Questions 22-24); and to describe their feelings about the O.J. Simpsontrial (Question 41 A.-F). (See, e.g., Exh. 2 [LeDonnaF.], Augmented Jury Questionnaires*”, pp. 1, 6-9, 12- 13.) In seeking information about the jurors’ feelings toward the justice system, the defendants, their duties as jurors, and capital punishment, the questionnaire asked the following questions, in relevantpart: 39, On September 19, 2007, this Court granted Respondent’s Motion to Augment the Record with ten jury questionnaires omitted from the clerk’s transcript. The augmented questionnaires were labeled Exhibits 2 through 11. 87 25. Do you have anyfeeling about the nature of the chargesin this case that would makeit difficult or impossible for you to be fair and impartial? (See, e.g., Exh. 2, Augmented Jury Questionnaires,p. 9.) 26. Do youhaveanyreligious or moral feeling that would makeit ~ difficult or impossible for you to sit in judgment of another person? (Ibid.) 27. Would you bereluctantto serve as a juror on a crime involving acts of violence and where graphic photographsofthe victim will be in evidence? ( (Id. at p. 10.) 38. Do you havestrong feelings towards the use of alcohol and/or drugs? — (Id. at p. 11.) 74. A. What are your GENERAL FEELINGSregarding the Death Penalty? (id. at p. 22.) 74 B. What are yourGENERAL FEELINGSregardinglife without the possibility of parole? (Ibid.) 75. A. Do youfeel that the death penalty is used too often? Too seldom? ([bid.) 75.C. Assumefor the sake of this question only that the jury has found a defendant guilty of first degree murder and has found one or more special circumstances to be true and that you are in the penalty phase: would you,becauseofany views that you may have concerning capital punishment, automatically refuse to vote in favor ofthe penalty of death and automatically vote for a penalty of life imprisonment withoutthe possibility of parole, without considering anyof the 88 evidence of any of the aggravating and mitigating factors (about which you will be instructed)? (Id. at p. 26, emphasisin original.) 75. D. Assumeforthe sake of this question only that the jury has found a defendantguilty of first degree murder and has found one or more special circumstancesto be true and that you are in the penalty phase: would you,because ofany viewsthat you may have concerning capital punishment, automatically refuse to vote in favorofthe penalty oflife imprisonment with the possibility of parole and automatically vote for a penalty of death, without considering any ofthe evidence of any of the aggravating and mitigating factors (about which you will be instructed)? (Id. at pp. 26-27, emphasis in original.) 75. F. Could you set aside your own personal feeling regarding whatthe law oughtto be, concerning the killing of a human being and the appropriate punishmentfor such an activity, and follow the law as the court explainsit to you? (Ud. at p. 27.) 75. G. Would your feeling about the death penalty prevent or substantially impair your ability to conscientiously consider the imposition of the death penalty where appropriate? (Ibid.) 75. H. Would your feeling about the death penalty prevent or substantially impair your ability to conscientiously consider the imposition oflife without possibility of parole where appropriate? (Ibid.) 77. Do you believe that background information about a defendant is something relevant to the jury’s consideration of penalty? (id. at p. 28, emphasis in original.) 89 78. Overall, in considering general issues ofpunishment, which do you think is worse for a defendant (death orlife in prison without the possibility of parole]? (Ibid., emphasis in original) After describing the law on felony murder andliability for aiders and abettors, Questions 79 and 80 askedjurorsifthey could follow these laws and whetherthey would automatically vote forlife imprisonment without parole (or automatically against the death penalty) in suchsituations. (Exh. 2, Augmented Jury Questionnaires, pp. 28-29.) Finally, the questionnaire askedjurorsifthere was any reason they would prefer not to serve as a jurorin this case (Question 81), and ifthere was any reason whythey could not be fair and impartial to both the prosecution and the defense (Question 84). (Id. at pp. 29-30.) Onthe coversheet, the questionnaire requested thatjurors to respond to the questions“as completely as possible,” required them to sign the document under penalty of perjury, and warned: “The information contained in this questionnaire will be comepart of the court’s permanent record and therefore a public document.” (See, e.g., Exh. 2, AugmentedJury Questionnaires, Cover Sheet.) After all hardship discharges were heard andresolved,the court began voir dire of prospective jurors on March 4, 1996. Before bringing in thefirst 15-member panel of prospective jurors, the following exchange occurred betweenthe trial court and counsel: THE COURT:Now,Counsel, did you wishto stipulate that certain individuals have stated cause to be excused from service onthis jury and that it is not necessary to conduct voir dire of them? [PROSECUTOR]: Yes, Your Honor. [SELF’S COUNSEL]: Yes, we would. THE COURT: And who would be sostipulated? [PROSECUTOR]: Wewouldstipulate to number 1, La Donna[F.] 90 THE COURT: Okay. [PROSECUTOR]: Number2, Adrianne[F.] THE COURT: All right. [PROSECUTOR]: Number10, Olga [V.] THE COURT: All right. [PROSECUTOR]: And number13, Frank [D.] THE COURT: Okay. [SELF’S COUNSEL]: Sostipulated. (23 RT 3724-3725.) The court then dismissed the prospective jurorsstipulated for cause and counsel conducted oral voir dire on the remaining membersofthe 15-member panel. (23 RT 3728, 3731-3789.) After oral voir dire, the court asked counsel for their challenges for cause, ruled on those challenges, excused the relevant prospective jurors from service, and counseled the remaining jurors to return on a date whenthe jury would beselected. (23 RT 3790-3796.) This process would be repeated 12 times until the court qualified 100 prospective jurors, from which Self’s jury was ultimately selected. (23 RT 3798-3800; 24 RT 3867-3872, 3943-3947, 4008, 4012, 4015; 25 RT 4090- | 4091, 26 RT 4164-4166, 4240-4243; 27 RT 4314-4316, 4364-4367; 28 RT 4430, 4439, 4508-4509, 4512; 29 RT 4572-4573, 4575.) With regard to each and every panel, Self stipulated to prospective jurors for cause and voiced no objectionsto their dismissals, including the following prospective jurors he now complains were improperly discharged: Yolanda B.-M. (23 RT 3798-3799), Joshua V. and Jeffrey L. (24 RT 3867-3869), Kay T. and Peggy K. (25 RT 4086-4090), Beatrice M. (26 RT 4162-4163), and Pamela C., Brian S., Randy M., Michael H. and Ron U.(27 RT 4314-4316), and Robert G. (29 RT 4572- 4573). (SAOB 150-153, 177, 180-182, 184, 187-189.) 91 Oncethe court qualified 100 prospective jurors, the court broughtin a random selection’ of 12 prospective jurors into the jury box, solicited peremptory challenges from both sides, replaced struckjurors with otherjurors from the remaining qualified pool, and repeated the process until the parties acceptedthe panel as constituted. (29 RT 4649; 30 RT 4744-4745,4747, 4753, 4756-4762.) During regular juror selection, the prosecutor exercised three peremptory challenges, eliminating prospective jurors Anne B., Sharon G., and Tracy W., none ofwhom were Hispanic. (33 3SCT 9522; 40 3™ SCT 11595; 41 3 SCT 11965.) Self accepted the panel as constituted without exercising any peremptory challenges. (30 RT 4758-4762.) All of the 12 regular jurors were Caucasian. (3 SCT [Redacted Juror Questionnaires] 632, 706, 743, 780, 817,4 SCT [Redacted Juror Questionnaires] 891, 928, 965, 1002, 1113; 5 SCT [Redacted Juror Questionnaires] 1150, 1185.) During theselection ofalternates, the same method was used, but with only 5 prospective jurors in the jury box. The prosecutor exercised four peremptory challenges, eliminating LindaL., Isabel R., Ronald F., and Burma M. (30 RT 4762-4776.) On her questionnaire,Isabel R. identified her race and ethnic origin as Mexican, while the other three preempted jurors identified themselves as either Caucasian (Linda L., Ronald F.) or Black (Burma M.). (22 3" SCT 6315, 6352; 31 3° SCT 8980; 43 3° SCT 12490.) The defensealso exercised four peremptory challenges, eliminating Nathaniel G., Jill M., Patricia C., and Deborah M. (30 RT 4762-4776.) Both sides then accepted the alternate panelas constituted, which included two Black members,one Black/Belizean*”, 40. Self never objected to this randomized selection or otherwise asserted that Riverside County’s jury selection criteria was not neutral with respect to race and ethnicity. 41. Self contends there were no Hispanics onhis jury, either seated or alternates. (SAOB 154.) However, Alternate No. 2 (wholater became Juror No. 14 when shereplaced a seated juror on the first day oftrial) identified 92 and three Caucasians. (30 RT 4776; 3 SCT [Redacted Juror Questionnaires 669; 4 SCT [Redacted Juror Questionnaires] 854, 1039, 1076; 5 SCT [Redacted Juror Questionnaires] 1224.) A. Self Waived The Right To Challenge The Trial Court’s Dismissal Of Prospective Jurors Based On Their Answers To The Questionnaire, Or The Race AndEthnicity Question In The Questionnaire Although Self objected to the use of a questionnaire as part of jury selection procedures, he never lodged a specific objection to the race and ethnicity question (despite lodging specific objections to other questions), and he ultimately stipulatedto all ofthe questionnaire-baseddismissals ofwhich he now complains. Accordingly, he is precluded from advancing his claims of error on appeal. After the trial court overruled Self’s objection to the use of a questionnaire,the trial court actively encouraged Self’s counselto participate in drafting the questions. Although trial counsel maintained his blanket objection to the use of a questionnaire and refused to submit a proposed questionnaire of his own, he did participate in making final changes to the questionnaire, and mosttelling, he chose to lodge objectionsto the questions concerning the O.J. Simpsontrial. He did not, however, lodge any objections to the race andethnicity question. (10 RT 2051-2054, 2060-2068, 2071.) Nor did Self ever raise a claim ofracial bias, claim that Riverside County’s jury herself as Black/Belizean in her jury questionnaire. (3 SCT [Redacted Jury Questionnaires] 669; 31 RT 4861-4862, 4866.) Belize is a country in Latin America, bordering on Mexico. Hispanic is definedas “of, relating to, or being a person of Latin American descentliving in the United States.” (Webster's Third New International Dictionary, Unabridged (2002).) Given that Juror No. 14 (Alternate No. 2) identified herself, at least in part, as “Belizean,” she was, by very definition, a person of Latin American descentliving in the United States. Thus, it is reasonable to infer from the questionnaire that Juror No. 14 can properly be classified as “Hispanic.” 93 selection criteria was infirm with respect to race and ethnicity, claim that his jury was not drawn from a representative cross-section of the community, or claim that the prosecutor improperly targeted or dismissed prospective jurors based onrace or ethnicity. Havingfailed to make specific and timely objections on these groundsin thetrial court, he is now barred from asserting such claims on appeal. (People v. Abilez (2007) 41 Cal.4th 472, 493 [failure to object to alleged improper questioning oralleged prosecutorial misconduct during voir dire waives such claims on appeal]; People v. Thornton, supra, 41 Cal.4th 391, 462 [defendantbarred from raising Batson-Wheeler challenge for first time on appeal]; People v. Rogers (2006) 39 Cal.4th 826, 858 [defendant barred from raising fair cross-section claim on appealfor failure to object at trial]; People v. Seaton (2001) 26 Cal.4th 598, 700 [defendantfailed to object to jury panel on the groundthatcertain racial or ethnic groups were underrepresented, and heis thus precluded on appealfrom raising a claim that the panel wasracially or ethnically unbalanced].) Selfis likewise barred from appealing the questionnaire-based dismissals to which he stipulated. As Self acknowledges, in People v. Benavides (2005) 35 Cal.4th 69, this Court held a defendant wasbarred on appeal from raising the issue ofa trial court’s questionnaire-based dismissals whenhestipulated to the dismissals at trial. (/d. at p. 88.) The facts of Benavides are remarkably similar to those in the instant case. In Benavides, the trial court submitted two questionnaires to prospective jurors, one regarding hardship, and the other specific to death qualification. The court and counsel conducted voir dire of groups of prospective jurors. After several days, the court stated, Counsel have indicated also, yesterday, that, having reviewed the questionnaires from today, and having the benefit of extensive voirdire of a numberof other individuals in this particular case, that, in the interest of time, and moreparticularly in the interests ofjustice, they are 94 preparedto agreethat certain of our prospective jurorsforthis morning may be excused. (Id., at p. 88.) Thereafter, counselstipulated to the removalofeight prospective jurors based solely on the answersthey provided in their jury questionnaires. On appeal, the defendant,like Self, claimedthe process violated his right to an impartial jury. (Jbid.) This Court held the defendant wasbarred from raising the issue on appeal because he acquiesced in the procedure. Citing People v. Ervin (2000) 22 Cal.4th 48, 73, this Court stated, While the parties are not free to waive, and the court is not free to [forgo], compliance with the statutory procedures whichare designed to further the policy of random selection, equally important policies mandate that criminal convictions not be overturned on the basis of irregularities in jury selection to which the defendant did not object or in which he has acquiesced. [Citations.]’ ([Citation]; see also Cal. Const., art. VI, § 13 [no reversal for procedural errors absent a ‘miscarriage ofjustice’].)’ (People v. Benavides, supra, 35 Cal.4th at 88.) In People v. Ervin, supra, 22 Cal.4th 481, with the agreement ofcounsel and to avoid lengthy delays, the court developed a screening process that allowed counsel jointly to review juror questionnaires to screen out those prospective jurors who appearedto be strong candidates for dismissal, because their questionnaires demonstrated they would automatically vote for death, they would never vote for death, or they suffered from a hardship. Using this process,the court eliminated more than 600prospective jurors bystipulation of the parties. (People v. Ervin, supra, 22 Cal.4th at p. 72.) The Court rejected the defendant’s challengesto the process, noting that “the defendant, through his counsel, stipulated to every aspectofthe challenged procedure and further agreed to excuse every prospective juror he now asserts was improperly excused.” (Ervin, supra, 22 Cal.4th at p. 73.) The Court held the defendant was barred from raising on appeal defects in the procedure in which he 95 acquiesced. (Ibid.; see also People v. Hill (1992) 3 Cal.4th 959, 1003 [joining in an excusefor causeof a potential juror forfeits the issue for purposes of appeal].) In contrast, in People v. Stewart (2004) 33 Cal.4th 425, this Court held the defendant’s challenge to the court’s use of questionnaire-based dismissals was not waived. There, the Court found that nothing in the record indicatedthe defendanteither implicitly or explicitly conceded the propriety ofusing such a procedure;the trial court repeatedly assured counselit would conductoral voir dire to address any ambiguous responses; and thereafter, defense counsel repeatedly objected to each ofthe five excusals on the basis that the answers provided in the questionnaires did not demonstrate substantial impairment. (/d. at p. 452.) Here, although Selfinitially objected to the use ofa questionnaire as part of jury selection procedures, he ultimately acquiesced to the trial court’s proposed questionnaire-based dismissal procedure. Thetrial court madeits proposal very clear: if counsel reached a stipulation for cause based on a prospective juror’s questionnaire, the juror would be dismissed,andifcounsel did not agree or wantedoral voir dire as to a particular juror, that juror would not be dismissed based on their questionnaire alone. Self did not objectto this procedure, and like the defendants in Benavides and Ervin, Self stipulated to the dismissal of each and every prospective juror of which he now complains. Unlike the defendantin Stewart, Selfnever objected to the questionnaire-based dismissals ofwhich he now complains, nor did he argue that the jurors’ answers did not demonstrate substantial impairment. (23 RT 3724-3728, 3798-3800; 24 RT 3867-3872, 3943-3947, 4008, 4012, 4015; 25 RT 4090-4091, 26 RT 4164-4166, 4240-4243; 27 RT 4314-4316, 4364-4367; 28 RT 4430, 4439, 4508-4509, 4512; 29 RT 4572-4573, 4575.) Indeed, in discussing the stipulations with thetrial court, Self affirmatively requested the dismissalofall 96 of the prospective jurors of which he now complains (SAOB 150-153, 177, 180-182, 184, 187-189)including: Yolanda B.-M. (23 RT 3798-3799), Joshua V. and Jeffrey L. (24 RT 3867-3869), Kay T. and Peggy K. (25 RT 4086-4090), Beatrice M. (26 RT 4162-4163), and Pamela C., Brian S., Randy M., Michael H. and Ron U.(27 RT 4314-4316), and Robert G. (29 RT 4572- 42. With respectto his more general constitutional challenge to the use of questionnaire-based dismissals, Self cites to nearly all of the prospective jurors who were dismissed based on their questionnaires alone. (SAOB 150- 153.) As will be shown,the procedure wasa constitutional exercise ofthe trial court’s discretion, and in any event, Self stipulated to the dismissals. But with respect to his more specific claim that some prospective jurors were dismissed with insufficient cause, Self only cites to “no less than five” or “at least . . . six” prospective jurors, namely, Yolanda B.-M., Joshua V., Jeffrey L., Peggy K.., KayT., Beatrice M., Pamela C., Brian S., Randy M., Michael H., and Ron U. (SAOB 150-153, 177-178, 180-182, 184, 187.) Therefore, with regardto all other prospective jurors dismissed bystipulation, Self does not contest the sufficiency of the cause supporting the excusals, and thus this Court should affirm the judgment without undertaking any consideration of the basis for dismissal ofthese prospective jurors. “It is the duty ofthe defendants to show error, and that means defendants are under an affirmative duty in that respect. It is not properto attempt to shift that burden upon the court or respondent.” (People v. Goodall, supra, 104 Cal.App.2d at p. 242; People v. Clay (1964) 227 Cal.App.2d 87, 100.) To this end, “‘every brief should contain a legal argumentwith citation of authorities on the points made. If noneis furnished on a particular point, the court maytreat it as waived, and pass it without consideration. [Citations.]’ [Citations.]” (People v. Stanley, supra, 10 Cal.4th at p. 764; see also People v. Ramirez, supra, 39 Cal.4th at p. 398, fn.8; Cal. Rules ofCourt, Rule 8.204(a)(1)(B).) Further,to the extent Self“perfunctorily asserts other claims, without development and, indeed, without a clear indication that they are intended to be discrete contentions,they are not properly made, and [should be] rejected on that basis.” (People v. Turner (1994) 8 Cal.4th 137, 214,fn. 19; see also People v. Smith (2003) 30 Cal.4th 581, 616, fn. 8.) As Self provides no argumentor specific assignmentof insufficient cause with respectto all but eleven ofthe prospective jurors, Respondentwill only address these eleven identified prospective jurors. 97 4573)’ Givenhisstipulations, Selfhas waived any claim of error with regard to the dismissed prospective jurors. Recognizing his counsel “stipulated to the discharge of over 50 prospective jurors for cause,” Self argues this court should still address his claimsoferror because: (1) any further objectionson his part were futile after the trial court decided to use questionnaire-based dismissals (SAOB 188-189); (2) because the trial court here “did far more than merely pass on the ‘the adequacy of trial counsel stipulations,” (SAOB 188, citing People v. Benavides, supra, 35 Cal.4th at p. 88) and instead independently determined that the questionnaire of each excused prospective juror demonstrated substantial impairment, the trial courtrenderedthe excusal procedure to be one based upon judicial discretion rather thanstipulationofthe parties; (3) the trial court’s use of a questionnaire-based dismissal procedure was unconstitutional on its face and implicatedhis rightto a fair and impartial jury, a right he asserts cannot be waived (SAOB 158-178, 186-187); and (4) his counsel was ineffective in stipulating to the dismissals (SAOB 194-195, fn. 123). All of these assertions lack merit. First, Self’s futility claim is belied by the record itself. The trial court madeit very clear that unless both sides stipulated, the court would not dismiss a prospective juror based on the questionnaire alone. (10 RT 2054-2057.) And indeed, there were instances where either: Self proposed to dismiss a prospective juror based on his answers to the questionnaire, the prosecution objected, and thetrial court then refused to dismiss the prospective juror; or Self proposed to dismiss a prospective juror not originally agreed upon by stipulation, andthetrial court only dismissed the jurorafter the prosecution’s concurrence. (See, e.g., 27 RT 4315 [Richard B.], 4365-4668 [Deborah M.].) 43. Self even articulated grounds for his stipulations with regard to Yolanda B.-M.and Joshua V. (23 RT 3798-3799; 24 RT 3868-3869.) 98 Self had ample opportunity to object to the dismissal of the prospective jurors he now alleges were improperly discharged; he failed to do so, and thushis claim is waived. Second, Selffails in his attempt to turn his stipulations into acts of judicial discretion. Self arguesthat in his case,although the parties agreedto the dismissal of each excused prospective juror,the trial court “did far more than merely passon ‘the adequacyoftrial counsel’s stipulations,” and by doing so, independently determined that the questionnaire of each excused prospective juror demonstrated substantial impairment and thereby rendered the excusal procedureto be one baseduponjudicial discretion rather than stipulation of the parties. (SAOB 188, citing People v. Benavides, supra, 35 Cal.4th at p. 88.) Self appears to recognizehis stipulationsattrial forfeit his claims on appeal, and thus he attempts to categorize some ofthe stipulated dismissals as “sua sponte” dismissals by the trial court. (SAOB 189.) Thetrial court in no way excused these prospectivejurors for cause on its own motion. As demonstrated, each and every prospective juror at issue wasfirst stipulated to by the parties and then dismissedbythetrial court. Thetrial court here employednearly the same procedureas that used and upheld by this Court in Benavides. Thetrial court askedthe parties to submit a list of stipulated prospective jurors, and often asked counsel “to show a legitimate reason for agreeingto thestipulated excusals.” (People v. Benavides, supra, 35 Cal.4th at p. 88.) This Court held there was “no indication that in making the requestthe trial court was passing on the adequacy ofthe reasons for the stipulation.” (/bid.) A perfect example ofthetrial court’s conductin the instant case occurred during the discussion of counsel stipulated dismissal to Yolanda B.-M. After counsel voicedits stipulation to Yolanda B.-M.,the court inquired for the basis of the dismissal, and following exchange occurred: THE COURT: Okay. Now,Yolanda [B.-M.], I didn’t list her as a candidate to be excused for cause. That’s not to say that she hasn’t 99 stated cause, but whatin particular in her responsejustified her excusal for cause? [PROSECUTOR]: Asto — [SELF’S COUNSEL]: Along with Mr. West, Your Honor, her brother was accused of a murder. She also “disagrees,” is the language I think she put, is opposed to the death penalty and would go with life without parole. She did say she would support the law, but maybeit’s an exercise in frustration. THE COURT: Shesaid she would support the law. But both ofyou feel — [SELF’S COUNSEL]: I feel her responses are such that I would agree to stipulate at this point. [PROSECUTOR]: I agree. THE COURT: Allright. The Court will accept that stipulation. (23 RT 3798-3799.) But evenif this Court finds that the trial court here had a moreactive role than thetrial court in Benavides, such an active role does not nullify the stipulations. In People v. Avila (2006) 38 Cal.4th 491, the trial court took a much moreactive role than that employed in the instant case; the trial court itself proposed the dismissal of prospective jurors for cause based on the answers in their questionnaires and asked counsel for comment. The defendant objected unsuccessfully to the dismissal of four of the fourteen proposed prospective jurors. On appeal, the defendant challenged, and this Court reviewed, the application of the substantial impairment standard to the four challenged prospective jurors but did not suggest that the standard should apply to the prospective jurors who were dismissed by stipulation. (See People v. Avila, supra, 38 Cal.4th at pp. 527-529.) Likewise, in People v. Stewart, supra, 33 Cal.4th at p. 425, the trial court and counsel reviewed the questionnaires of prospective jurors, and then the court met with counsel“to rule on a numberofstipulated challenges for cause 100 — thatis, the elimination of those prospective jurors who both counsel agreed should be excused for cause.” (People v. Stewart, supra, 33 Cal.4th at 443.) Althoughthetrial court had “rule[d] on”the stipulated challenges, this Court did not review thetrial court’s determination that the agreed-upon prospective jurors were substantially impaired, but simply noted that manyoftheir answers revealed unambiguousandentrenched support for, or opposition to, the death penalty. (/d., at p. 444, fn. 11.) This Court reviewed only the dismissaloffive prospective jurors who were excused withoutoral voir dire over the defendant’s objection to the prosecutor’s challenge for cause. (See People v. Stewart, supra, 33 Cal. 4" at pp. 440-455.) Atany rate, the dicta in Benavides cited by Self (i.c., “passing on the adequacyofthe reasons forstipulations”) should not be taken to mean that a judicial determination of substantial impairment nullifies an otherwise valid dismissal by stipulation. Such a departure from this Court’s precedent would lead to an absurd result, in that a stipulated dismissal would be subject to appellate review if the trial court approved ofthe parties’ determination of substantial impairment, but immunefrom appellate review ifthe trial court did not know the reasons behindthe stipulation. Self has provided no reason for this Court to implementsuch a rule, which has not been applied in other cases. (See People v. Avila, supra, 38 Cal.4th at pp. 527-529; People v. Stewart, supra, 33 Cal.4th at p. 443; People v. Hill, supra, 3 Cal.4th at p. 1003 [joining in an excuse for cause ofa potential juror forfeits the issue for purposes of appeal].) Self’s third assertion,i.e., that the trial court’s use of a questionnaire- based dismissal procedure was unconstitutional on its face (SAOB 158-178, 186-187), fails as well. Self contends, by using the questionnaire,the trial court failed to conductvoir dire, in violation ofhis rights undertheFirst, Fifth, Sixth, Eighth, and Fourteenth Amendments, as well as his fundamentalright to an 101 impartial jury drawn from a cross-section ofthe community. (SAOB 158-178.) Self’s premise is flawed, because as hefails to acknowledge, there is no constitutional right to voir dire. Further, the extensive inquiries in the questionnaire constituted thorough and adequate voir dire of all prospective jurors, and thetrial court did not err in utilizing the questionnaire-based procedure. Although Self claimsthetrial court’s use of a written questionnaire to dismiss prospective jurors without oral voir dire violated his constitutional rights, he fails to cite any authority so holding. This is not surprising. Both the United States Supreme Court and California Supreme Court haveheld that voir dire is not a constitutional right, but rather a means to achieve the end of an impartial jury. (People v. Tafoya (2007) 42 Cal.4th 147, 168; People v. Ramos (2004) 34 Cal.4th 494, 512; People v. Bittaker (1989) 48 Cal.3d 1046, 1086, citing People v. Coleman (1988) 46 Cal.3d 749,and Rossv. Oklahoma(1988) 487 U.S. 1 [108 S.Ct. 2273, 101 L-Ed.2d 80]. ) Noris there a constitutional right to any particular mannerofvoirdire or selecting a jury “so long as such limitations as are recognized bythe settled principles of criminal law to be essential in securing impartial juries are not transgressed.” (People v. Ramos, supra, 34 Cal.4th at p. 512.) “[T]he trial court is given wide latitude to determine how best to conduct the voir dire... .” (Rosales-Lopez v. United States (1981) 451 U.S. 182, 189 [101 S.Ct. 1629, 68 L.Ed.2d 22]; Peoplev. Tafoya, supra, 42 Cal.4th at p. 168.) “The trial court, moreover, has a duty to restrict voir dire within reasonable bounds to expedite thetrial.” (People v. | Avila, supra, 38 Cal.4th at p. 1109, citing People v. Wright (1990) 52 Cal.3d 367, 419.) Self does not acknowledgethis clear precedent, much less make any attempt to distinguish it. (SAOB 158-178.) Further, the trial court did conduct voir dire in this case. The court distributed a 32-page questionnaire which asked thorough questions pertaining 102 to the prospective juror’s background, employment, education, family,interests, military service, knowledgeofparticipants, experience with the judicial system, experience with law enforcement, experience with crime, prior jury service, attitudes about and ownership of guns,attitudes about and use ofalcohol and drugs, familiarity with the case,ability to follow particular instructions, ability to remain fair and impartial,attitudes about the death penalty, and expectations regarding his or her conduct during the deliberation process. (See, ¢.g., Exh, 2 [LaDonna F.], Augmented Jury Questionnaires].) Even Self admits the questionnaire called for “highly detailed, written explanations” to many ofthe questions. (SAOB 143.) And the prospective jurors responded to these questions underpenalty of perjury. In other words, the written questionnaires asked the very same questions usually propounded during anyoral voir dire session, with the addedbenefit of allowing the prospective jurors to take their time and respondin private, thereby increasing the likelihood of candor and completeness. In sum, the questionnaire was part of the voir dire process. Statute and this Court’s precedent further support the use of a questionnaire aspart ofthe voir dire process. Code of Civil Procedure section 223, as enactedatthe time of appellants’ trial, provided for court-conducted examination ofprospective jurors in a criminalcase,including a death penalty case, in the presenceofthe other prospective jurors where practicable, but also “provided that the court’s exercise of its discretion in the mannerin whichit conducted voir dire would not cause any conviction to be reverse absent a miscarriage ofjustice.” (People v. Avila, supra, 38 Cal.4th at p. 534.) Code of Civil Procedure section 205, subdivisions (c) and (d), provide for the use of questionnaires“forassisting in the voir dire process.” “Whetherthe prospective jurors are required to complete a written questionnaire is a matter within the trial court’s discretion.” (People v. Tafoya, supra, 42 Cal.4th at p. 168.) 103 In People v. Lewis, supra, 25 Cal.4th at p. 610, the Court failed to administer the oath required by Code of Civil Procedure, section 232 to prospective jurors before they filled out their questionnaires. The prosecutor argued the questionnaires were simply a guide to the oral questioning, so no oath was necessary. This Court disagreed,stating that “. . . recent decisions describing the judicial practice of conducting voir dire in a capital case by having prospective jurors give written answers to a jury questionnaire imply that a juror questionnaire is part of the ‘examination’ for purposes of Code of Civil Procedure section 232. [Citations.]” (Lewis, supra, 25 Cal.4th at 630, emphasis added.) Self claims, Thereis no suggestion,direct or indirect, in any of[the relevantcases], that a written questionnaire could eversubstitute for actual voir dire. On the contrary, the opinionshave consistently emphasized the importance of the prospective jurors’ physical presence in court for questioning so that the trial court can observe them. (SAOB 164.) Respondentdoes not dispute that the cases cited by Self place great emphasis ona trial court’s observationsofa prospective juror’s demeanor for the purposeof evaluating his or her impartiality in deciding challenges for cause. It does notfollow, however,that such observationsare necessary where the prospective juror’s written answersreveal “unambiguous and entrenched” disqualifying positions. (See People v. Stewart, supra, 33 Cal4th at p. 444, fn. 11.) In fact, the opinions of this Court hold otherwise. (See Peoplev. Avila, supra, 38 Cal.4th at p. 531; People v. Benavides, supra, 35 Cal.4th at p. 88; People v. Ervin, supra, 22 Cal.4th at p. 73 [the procedure benefitsall parties by screening out overzealous “pro-life” and “pro-death” venirepersons, substantially expediting the process, and “culling out” prospective jurors who probably would have beenunableto serve asjurors in any event]. ) 104 Noris there any merit to Self’s claim that the process violated his, and the public’s, right to a public trial under the First Amendment. (SAOB 184- 186.) Self waived this claim by failing to raise it at trial (People v. Ledesma, supra, 39 Cal.4th at p. 641), and in any event, the public has noright to access the questionnaires of venirepersonsnevercalled to the jury box for oral voir dire. (Copley Press v. Superior Court (1991) 228 Cal.App.3d 77; Lesher Communications v. Superior Court (1990) 224 Cal.App.3d 774.) Further, Self received all the protections of a public trial. The prospective jurors were informedthat their questionnaires were a public record, Self and his counsel had full access to the questionnaires, the stipulation process and dismissals for cause were conducted in open court, and the oral voir dire ofprospective jurors was also conducted in open court. (See, e.g., Exh.2, Augmented Jury Questionnaires, Cover Sheet; Press-Enterprise Co. v. Superior Court of California (1984) 464 U.S. 501 [104 S.Ct. 81, 78 L.Ed.2d 629,] [holding First Amendmentaffords right of public access to voir dire in criminaltrial].) As to the content of the questionnaire, it was well-worded to screen prospective jurors for disqualification. The first several pages of the questionnaire were devoted to determining a prospective juror’s capacity to perform their duties as a juror, their ability to be fair and impartial to both parties, and any implied bias. (See Civ. Pro. Code, §§ 208, 209.) As previously discussed,the finalized 32-page jury questionnaire asked the prospectivejurors, interalia: to identify their experiences with violent crime or the criminaljustice system (Questions 17-19); to describe anypriorjury service (Questions 22-24), and to describe their feelings about the O.J. Simpson trial (Question 41 A.-F). (See, e.g., Exh. 2 [LaDonnaF.], Augmented Jury Questionnaires,pp. 1, 6-9, 12- 13.) In seeking information aboutthe prospective jurors’ feelings toward the justice system,the defendants, andtheir duties as jurors, the questionnaire asked very specific questions, including: 105 25. Do you have anyfeeling aboutthe nature of the chargesin this case that would makeit difficult or impossible for you to be fair and impartial? (See, e.g., Exh. 2, Augmented Jury Questionnaires, p. 9.) 26. Do you haveanyreligious or moral feeling that would make it difficult or impossible for you to sit in judgment of another person? (/bid.) 27. Would youbereluctant to serve as a juror on a crime involving acts of violence and where graphic photographsofthe victim will be in evidence? (Id. at p. 10.) 38. Do you have strong feelings towards the use of alcohol and/or drugs? (id. at p. 11.) In addition, the questionnaire repeatedly asked prospective jurors whether they could follow particular instructions on the law and perform particular duties. (Id. at pp. 13-21.) These questions were more than sufficient to disclose a prospective juror’s capacity to serve and areas of implied bias. The questionnaire also asked detailed and expansive questionson capital punishment, which gave the prospective jurors ample opportunity to disclose the strength and nature of their views. In People v. Avila, supra, 38 Cal.4th 491, this Court upheld the dismissal of four prospective jurors for cause based on the answers provided in their jury questionnaires.” (Id., at p. 530.) The Court held that “a prospective juror in a capital case may be dischargedfor cause based solely on his or her answersto the written questionnaireifit is clear 44. In Avila, the defendant objected to the removal of four of the fourteen prospective jurors that were dismissed by this process. (Avila, supra, 38 Cal.4th at pp. 528-529.) 106 from the answersthat he or she is unwilling to temporarily set aside his or her ownbeliefs and follow the law.” (Avila, supra, 38 Cal.4th at p. 531.) Central to the decision in Avila was the adequacy of the questionnaire, which asked whethera prospective juror held such conscientious objectionsto the death penalty that, regardless of the evidenceorthe strength ofthe proof, he or she would “automatically” refuse to return a verdict of first degree murder,find a special circumstanceto be true, or impose the death penalty. The Court held that any prospective juror who would “automatically” vote in ways that precluded the death penalty would clearly be disqualified. (Avila, supra, 38 Cal.4th at p. 531.) The Court found the questionnaire included detailed and expansive questions on capital punishment, which gave the prospective jurors a clear opportunity to disclose any views they had which were strong enough to disqualify them on a death penalty case. Further, the Avila Court foundthat the responses of each of the challenged jurors were sufficiently unambiguous to allow the court to identify disqualifying biases based on their questionnaires alone. (/bid.) In Avila, this Court distinguished People v. Stewart, supra, 33 Cal.4th 425. In Stewart, the defendant challengedthe trial court’s dismissal of four prospective jurors over the defendant’s objection based on the questionnaires alone, without any oral voir dire. Noting that Stewart upheld the stipulated dismissal of 17 prospective jurors based on questionnaires revealing “unambiguousand entrenched support for or opposition to the death penalty,” the dismissal ofthe remaining prospective jurors was problematic because their answers to the questionnaire failed to makeit clear whether they would be able to put aside their personalbeliefs and follow the law. The questionnaire asked the prospective jurors whether they had a conscientious opinion or belief about the death penalty that “‘would prevent or makeit very difficult’ for the jurorto vote for first degree murder, find a special circumstance true, or impose the 107 death penalty.” (Stewart, supra, 33 Cal.4th at 530, emphasis in original.) Further questioning was required of those prospective jurors whose questionnaires did not inquire whether they could put aside their personal reservations and properly weigh and consider the aggravating and mitigating factors. ([bid.) Here, as in Avila, the questionnaire asked specific, unambiguous questions to which certain answers were unequivocally disqualifying underthe substantial impairmenttest. Question 76.A. asked: Would you,becauseofany viewsthat you may have concerning capital punishment, refuse to find that the defendant guilty of first degree murder, even though you personally believed that defendantto be guilty offirst degree murder, just to prevent the penalty phase form taking place? (See, e.g., Exh. 2, Augmented Jury Questionnaires, p. 25.) Likewise, Question 76.B. asked: Would you, because ofany viewsthat you may have concerningcapital punishment,refuseto find the special circumstance(s) true, even though you personally believedit (them) to be true, just to prevent the penalty phase form taking place? (Id. at pp. 25-26.) Unlike the question asked in Stewart, the inquiries here were framed so that an affirmative answerindicated an unambiguousrefusalto follow the law. Question 75.C. asked, Assumefor the sake of this question only that the jury has found a defendant guilty of first degree murder and has found one or more special circumstances to be true and that youare in the penalty phase: would you, because of any viewsthat you may have concerningcapital punishment, automatically refuse to vote in favor of the penalty of death and automatically vote for a penalty oflife imprisonment without the possibility ofparole, without considering any ofthe evidence ofany 108 of the aggravating and mitigating factors (about which you will be instructed)? (/d. at p. 26, emphasis in original.) Question 75.D.asked, Assumefor the sake of this question only that the jury has found a defendant guilty of first degree murder and has found one or more special circumstancesto be true and that you are in the penalty phase: would you, because of any viewsthat you may have concerningcapital punishment, automatically refuseto vote in favorofthe penalty oflife imprisonmentwith the possibility ofparole and automatically vote for a penalty of death, without considering any ofthe evidence of any ofthe aggravating and mitigating factors (about which you will be instructed)? (Id. at pp. 26-27, emphasis in original.) Question 75.F. asked, Could you set aside your own personalfeeling regarding whatthe law ought to be, concerning the killing of a human being and the appropriate punishmentfor such an activity, and follow the law as the court explains it to you? (Id. at p. 27.) Question 75.G. and 75.H. then asked prospective jurors whethertheir views on the death penalty would “prevent” or “substantially impair” their ability to conscientiously consider either penalty. (Jbid.) Finally, after describing the law on felony murder andliability for aiders and abettors, Questions 79 and 80 asked prospective jurors if they could follow these laws and whether they would “automatically”vote for life imprisonment without parole (or “automatically” vote against the death penalty) in suchsituations. (Exh. 2, Augmented Jury Questionnaires, pp. 28-29, emphasis added.) Clearly, the questionnaire in the instant case, by using terms such as “prevent,” “automatically,” and “refuse,” avoided the ambiguities inherent in the Stewart questionnaire, which asked prospective jurors whether they would find it difficult to do certain things. The terms used here allowed the court to determine those prospective jurors who held disqualifying and inflexible 109 positions because their answers necessarily indicated they wouldnot put aside their ownbeliefs and follow the law. Moreover, the questionnaire as a whole gavea full picture of a prospective juror’s attitudes andbiases, as reflected by all of his or her answers. Accordingly, the questionnaire constituted an adequate basis from which to determine a prospective juror’s capacity to serve as a capital juror, andthetrial court did not abuseits discretion in utilizing the questionnaireas part ofthe jury selection process. (People v. Benavides, supra, 35 Cal.4th at p. 88 [a trial court’s decision to utilize a process ofpre-screening jurors based on their answersto questionnairesis reversible only whereitfalls outside the boundsofreason].) Lastly, this Court should reject Self’s perfunctory claim ofineffective assistance of counsel. (SAOB 194-196, fn.123.) Trial counsel’s stipulations to the questionnaire-based dismissals did not constitute ineffective assistance. A successful claim of ineffective assistance of counsel has two components. First, “the defendant must show that counsel’s representation fell below an objective standard of reasonableness.” (Strickland v. Washington, supra, 466 U.S. 668 [688 104 S.Ct. 2052, 80 L.Ed.2d 674].) In evaluating counsel’s performance the reviewing court must be highly deferential, avoiding the “distorting effects of hindsight” and “indulg[ing] in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. ...” (Id. atp. 689.) Second,the defendant must show that counsel’s deficient performance deprived him ofa fair trial, i.e., “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have beendifferent.” (Id. at p. 694.) In People v. Ervin, supra, 22 Cal.4th at page 78, the Court rejected a claim similar to Self’s, stating, “We find no incompetence here. Defense counsel may well have hadtactical reasons for avoiding the lengthy delays usually involved in capital case voir dire. As we previously stated . . . the 110 procedure benefittedall parties by substantially expediting the jury selection process and “culling out” prospective jurors who probably would have been unable to serve.” Defense counsel here likely had the same tactical reasons, i.e., to expedite voir dire by culling out overzealous, unalterably biased, or otherwise disqualified prospective jurors from the panel. After review of the questionnaires from the prospective jurors dismissed by stipulation,it is clear the process benefitted both sides, as manyof the stipulated prospective jurors showedpre-existing bias against appellants dueto the nature ofthe charges, an inability to follow instructions, or strong viewsin favor of capital punishment. (See, e.g., Exhs 2-4, 6,7, & 10, Augmented Jury Questionnaires [LaDonnaF., Adrianne F., Olga V., Carol P., Frank B., Charles M.]; 23 3 SCT 6646-6719 [Richard B., Randy M.]; 25 3 SCT 7090-7126 [Lorraine G.]; 29 3" SCT 8201-8274 [Joseph F., Cynthia B.]; 30 3 SCT 8756-8792 [Linda M.]; 33 3 SCT 9631-9667 [Rochelle P.]; 34 3 SCT 9668-9704 [Steve N.]; 35 3 SCT 10002-10038 [Thomas W.]; 37 3 SCT 10742-10778 [Rosaicela S.]; 38 3" SCT 10853-10926 [Raul H., Ronald S.]; 43 3° SCT 12414-12450, 12525- 12561 [Bernice V., Randi D].) Moreover, once the preliminary screening process concluded, the court and counsel conductedoral voirdire in selecting the actual jurors that would try Self’s case. (See Ervin, supra, 22 Cal.4th at p. 73.) Thus, Self cannot demonstrate his counsel’s stipulation to excusing prospective jurors for cause was anything other than a reasonabletactical decision, nor any prejudicefrom his counsel’s stipulations. AsSelfhas advanced no persuasive reasonto ignore his otherwise valid stipulations for cause, this Court should reject his claim as forfeited. 111 B. Self Fails To Establish How The Single Question Asking For The Prospective Juror’s Race And Ethnicity Amounted To Error Or Resulted In Prejudice Self contends that the race and ethnicity question within the jury questionnaire resulted in the non-representation ofHispanicsonhisjury and the selection of a biasedjury in violation ofhis rightstoa fairtrial and trial byjury drawn from a representative cross-section ofthe community,in violation ofthe Fifth, Sixth, and Fourteenth Amendments. (SAOB 154-157.) As previously discussed, Self waivedthis claim oferror byfailing to object to question in the trial court. Likewise, he waived any claims alleging racial bias, that his jury was not drawn from a non-representative cross-section,that the jury selection procedures were infirm with respect to race and ethnicity, or that the prosecutor improperly targeted or dismissed prospective jurors based onrace or ethnicity. (People v. Abilez, supra, 41 Cal.4th at p. 493; People v. Tihornton, supra, 41 Cal.4th at p. 462; People v. Rogers, supra, 39 Cal.4th at p. 858; People v. Seaton, supra, 26 Cal.4th at p. 700.) In any event, the single question on race and ethnicity did not amount to prejudicial error. Self fails to demonstrate how asking a single question to identify the prospective juror’s race and ethnicity amountedto error, muchless error of constitutional dimension. First, even ifthe questionnaire had never been used and these prospective jurors wereall orally voir dired,in all likelihood counsel would have found outtheir race and ethnicity. Selfdoes not show whylearning this information in written format amountsto error or the “‘opportunity for discrimination” (SAOB 157), while learning the information verbally or demonstrably does not.” 45. In ArgumentVIII ofhis openingbrief, Selfraises a related claim of prosecutorial misconduct. He argues the prosecutor impermissibly targeted Hispanic prospectivejurors during voir dire. In this Argument, he alleges that the race and ethnicity question somehow contributed to or created the 112 Second,ifthe prospective jurors had not been asked to identify their race and ethnicity in the questionnaire, Selfwould likely be complaining on appeal that the record is inadequate to permit meaningful review of his race-based claims. (See, e.g., People v. Heard (2003) 31 Cal.4th 346, 970 [defendant claimed that missing questionnaires contained information on the race ofthe excluded prospective jurors, and withoutthat information,the record on appeal was inadequate to permit meaningful review of his Wheeler-Batson claim].) Havingthe prospective jurors identify their race and ethnicity provided counsel and the trial court with a more complete picture of the prospective jurors, and ultimately aided review ofthe claims Self now raises on appeal. Third, Self fails to show how the alleged®lack ofHispanics onhis jury “is due to systematic exclusion of that group in the jury selection process.” (People v. Rogers, supra, 39 Cal.4th at p. 858.) To establish a prima facie violation of the Sixth Amendment’sfair cross-section requirement, defendant would have to demonstrate: (1) the group allegedly excluded wasa distinctive group in the community;(2) the representation of that group in the venire from which his jury was selected was not fair and reasonable in relation to the numberof such persons within the community; and (3) the underrepresentation was due to systematic exclusion of that group in the jury selection process. (People v. Rogers, supra, 39 Cal.4th at p. 858, citing Duren v. Missouri (1979) 439 U.S. 357, 364 [99 S,Ct, 664, 58 L.Ed.2d 579,]; People v. Burgener (2003) 29 Cal.4th 833, 855.) A defendant does not demonstrate systematic exclusion “merely by offeringstatistical evidence of a disparity. A defendant must show, in addition, that the disparity is the result of an improper feature of the jury opportunity for the prosecutor’s alleged misconduct. (SAOB 157.) Again,Self fails to show why the prosecutor learning this information from the questionnaire was somehow worsethan learning it during oral voir dire. 46. As previously discussed, Juror No. 14 (Alternate No. 2) identified herself in part as “Belizean.” 113 selection process. [Citation.]” (People v. Burgener, supra, 29 Cal.4th at p. 855.) Self theorizes that the alleged underrepresentation of Hispanicsonhis jury was caused, at least in part, by the race and ethnicity question; but he utterly fails to demonstrate how this is so. Indeed, the record belies Self’s theory. Several Hispanicsfilled out the questionnaire, and several ofthem were discharged for cause based on their questionnaire responses, but only with Self’s stipulation. (23 RT 3724-3728, 3798-3800; 24 RT 3867-3872, 3943- 3947, 4008, 4012, 4015; 25 RT 4090-4091, 26 RT 4164-4166, 4240-4243; 27 RT 4314-4316, 4364-4367; 28 RT 4430, 4439, 4508-4509, 4512; 29 RT 4572- 4573, 4575.) Several Hispanics wereorally voir dired as well, and nearly all of them reached the pool of 100 qualified prospective jurors from which Self’s jury wasselected. (23 RT 3790-3793; 24 RT 3860-3861, 3934-3940, 4003; 26 RT 4155-4158, 4237; 28 RT 4504.) Andit appears that the few whodid not were either challenged orstipulated for cause by Self. (24 RT 4003; 27 RT 4371.) By random chance, no Hispanics made it into the jury box during selection ofthe regularjury, and Selfaccepted the panelas constituted. (29 RT 4649; 30 RT 4744-4745, 4747, 4753, 4756-4762;33 3 SCT 9522; 40 3" SCT 11595; 41 3 SCT 11965; (3 SCT [Redacted Juror Questionnaires] 632, 706, 743, 780, 817, 4 SCT [Redacted Juror Questionnaires] 891, 928, 965, 1002, 1113; 5 SCT [Redacted Juror Questionnaires] 1150, 1185.) During the selection of alternates, a random selection was used as well, and only one Hispanic juror made it into the jury box. The prosecutor used a peremptory challenge to excuse this juror, Isabel R., and Self did not object or otherwise allege that the prosecutor used the peremptory based onrace. (30 RT 4762- 4776.) In fact, it’s clear the prosecutor’s challenge was based on information that Isabel R. disclosed during voir dire rather than her race. Isabel R.’s 114 husband was a Los Angeles County Deputy Sheriff, and she workedfor the Los Angeles County Sheriff's Department as well, as a data entry clerk. In her questionnaire, Isabel R. indicated she would automatically vote for life without parole for an unintended felony murder, and equivocatedonthis pointin oral voir dire. Her questionnaire also indicated that she believed her views on capital punishment(“an eye for an eye”) wouldpreventor substantially impair her conscientious imposition of either punishment. (22 3 SCT 6315-6317, 6336-6343; 25 RT 4151-4153). After each side used four peremptory challenges, Self accepted the panel as constituted, again not raising any race- based objection. (30 RT 4762-4776.) The alternate panel as constituted included two Black members, one Black/Belizean, and three Caucasians, with the Black/Belizean later becoming a regular juror. Clearly, the alleged underrepresentation ofHispanics on Self?s jury was the result of chance and valid dismissals, rather than any systematic excusal of Hispanics as a group. Self has utterly failed to set forth any evidenceto the contrary. And rank speculation is insufficient to establish a violation ofthe Sixth Amendment’s fair cross-section requirement. (People v. Burgener, supra, 29 Cal.4th at p. 858.) Likewise, Self fails to articulate how the single race and ethnicity question led to a jury biased in favor of the death penalty. As demonstrated in Respondent’s Argument X, infra, Self’s jurors did not demonstrate views on capital punishment that would prevent or substantially impair the performanceoftheir duties, and Self in fact was afforded his right to a fair and impartial jury. In sum, this Court should reject Self’s unsupported claims or error regarding the race and ethnicity question. 115 C. Substantial Impairment Is Demonstrated By The Information In The Questionnaire Of Each Prospective Juror That Self Now — Complains Were Improperly Discharged Self contendsthat, in the eventthis Court nullifies his valid stipulations for cause, eleven of the venirepersons to whom hestipulated were wrongfully excluded from the venire becausetheir questionnaires contained inappropriate, ambiguous and/or conflicting responses and commentsthat should have been followed up with oral voir dire. (SAOB 151-153, 177, 180-182.) Self is wrong. Aspreviously discussed, this Court should not review Self’s claim becausehestipulated to each and every one ofthe prospective jurors ofwhich he now complains were improperly discharged. In any event, as to each dismissed prospective juror, the answers in their questionnaire and the information they providedto the court demonstrated substantial impairment and supported their removal. The for-cause removal ofprospective jurors basedon reasonsother than the death penalty is governed by California Code ofCivil Procedure sections 228 and 229. Section 228sets forth the groundsfor a challenge for cause based on general disqualifications, and includes, (b) the existence of any incapacity whichsatisfies the court that the challenged personis incapable ofperforming the duties of ajurorin the particular action without prejudice to the substantial rights of the challenging party. Section 229 covers challenges for implied bias and states, in pertinent part, A challenge for implied bias may be taken for one or more ofthe following causes, and for no other: ... (f) The existence ofa state of mindin the juror evincing enmity against, or bias towards,either party. A prospective juror may be excusedfor cause based onhis or her views on the death penalty where those views would “preventor substantially impair’ the performance of his or her duties as a juror in accordance with the trial 116 court’s instructions and his or her oath.” (People v. Avila, supra, 38 Cal.4th at p. 529, citing Wainwright v. Witt, supra, 469 U.S. 412, 424 [105 S.Ct. 844, 83 L.Ed.2d 841] and People v. Cunningham (2001) 25 Cal.4th 926, 975.) Jurors may not be excluded for voicing general objections to the death penalty, or expressing conscientious or religious reasons for objecting to capital punishment. (Witherspoonv.Illinois (1968) 391 U.S. 510, 522 [88 S.Ct. 1770, 20 L.Ed.2d 776].) “Those who firmly oppose the death penalty may nevertheless serve as jurors in a capital case as long as they state clearly that they are willing to temporarily set aside their own beliefs and follow the law.” (People v. Avila, supra, 38 Cal.4th at p. 529, citing Lockhart v. McCree (1986) 476 U.S. 162, 176 [106 S.Ct. 1758, 90 L.Ed.2d 137] and People v. Rodrigues (1994) 8 Cal.4th 1060, 1146.) A prospective juror may be excluded ifhe or she is unable to conscientiously considerall ofthe sentencing alternatives, including the death penalty where appropriate. (People v. Cunningham, supra, 25 Cal. Ath at p. 975.) An appellate court reviews a trial court’s conduct of the voir dire of prospective jurors for an abuse ofdiscretion. Thus,thetrial court’s decision to utilize a process of pre-screening jurors based on their answers to questionnaires is reversible only whereit falls outside the boundsof reason. Ordinarily, a trial court’s decision to exclude prospective jurors for causeis also given deference on appeal, becausethetrial court is uniquely situated to gain information from interacting with jurors and observing their tone, demeanor and confidence. But where the ruling is based solely on the juror’s answers in a questionnaire, no such deferenceis warranted, as the same information used bythetrial court inits ruling is available on appeal. (People v. Avila, supra, 38 Cal.4th at p. 529, citing People v. Stewart, supra, 33 Cal.4th at p. 451.) Accordingly, this Court reviews de novo the application of the substantial impairmentstandardas to each individualjuror when the excusalis basedsolely 117 on the juror’s responses to a questionnaire. Moreover, whena trial court is found to haveerroneously removedaprospective anti-death penalty prospective juror for cause based on Witt/Witherspoon standards, the conviction is unaffected, as the appellant would be entitled only to a new penalty phase retrial. (Gray v. Mississippi (1987) 481 U.S. 648, 667-668 [107 S.Ct. 2045, 95 L.Ed.2d 622]; People v. Ashmus (1991) 54 Cal.3d 932, 962.). 1. Prospective Jurors Yolanda B.-M.., Jeffrey L., Kay T., Randy M., And Ron U. Were Properly Dismissed For Reasons Other Than Their Positions On The Death Penalty Prospective jurors Yolanda B.-M., Jeffrey L., Kay T., Randy M., and Ron U. were properly excused by stipulation for reasons other than their positions on the death penalty, as they were generally disqualified and “incapable ofperforming the duties of ajuror.” (Civ. Proc. Code,§ 228, subd. (b).) As argued by Self’s counsel at trial, Yolanda B.-M.’s brother was serving a sentence for murder in a California prison. (23 RT 3799, Exh. 8 [Yolanda B.-M.], Augmented Jury Questionnaires, pp. 7-8.) Yolanda B.-M. described the circumstances of her brother’s crime rather dismissively, “he killed some lady,” then wenton to express her opinion that he should serve at least half ofthe sentence for his crime. She indicated she visited him in prison, at “Folsom, Lancaster, also Juvenile hall.” (Exh. 8 [Yolanda B.-M.], Augmented Jury Questionnaires, pp. 7-8.) In Question 41, Yolanda B.-M. voiced somevery strongly held beliefs about the justice system andjury service in light of the O.J. Simpsontrial, despite just watching “the end of thetrial, summations.” When askedto describeher feelings about jury service in light of the Simpsontrial, she stated: “The white community dislikes seeing people of color not incarcerated.” Althoughshe said the Simpson case would not have an affect on herability to be fair and impartial (Question 41.G.), she followed 118 up her answerto that question with another expression ofher strong opinions, stating, “[S]pousal abuse does NOT equate murder!!” (Exh. 8 [Yolanda B.- M.], Augmented Jury Questionnaires, pp. 12-13.) Theintensity ofYolanda B.- M.’s opinions, along with her status as a sister of a convicted murder, had a strong likelihood to infect her deliberative process (as well as those of other jurors) and thusestablished sufficient reasons for her dismissal. Later, with regardto the two choicesofpotential punishment in this case (death penalty and life withoutparole), Yolanda B.-M.stated she disagreed with both, and was unsure whether she would automatically vote against the death penalty if the defendant was found guilty of murder as an aider and abetter. (Exh. 8 [Yolanda B.-M.], Augmented Jury Questionnaires, pp. 22, 29.) Yolanda B.-M.also did not want to serve on the jury given the approximated trial length. (Exh. 8 [Yolanda B.-M.], Augmented Jury Questionnaires, pp. 29.) Counsel stipulated and the court agreed to excuse her for cause based on counsel’s stipulation. (23 RT 3799.) Similarly, prospective juror Jeffrey L. was excused for reasons other than his views on the death penalty. As the prosecutor indicated to the court, many ofJeffrey L.’s answers were “weird,”“unusual,” and “extremely bizarre.” (24 RT 3868.) These bizarre answersreflecteda strong potentialfor difficulty with the deliberative process and potential to alienate his fellow jurors, which amply supported his dismissal. For instance, he believed those who kill with their “bare hands compared to a weapon” should be executedfirst, such as “stranglers.” (24 RT 3868; 25 3“ SCT 7298.) Whenasked if he believed a defendant’s background information wasrelevant to the penalty determination, hestated he only “would consider the information’s relativity [sic] to the jury’s finding on guilt and innocence.” (25 3 SCT 7304.) But most importantly, Jeffrey L. stated he could not follow the court’s instruction to consider only the facts of Self’s case (and to disregard Romero’s case) during deliberations 119 (Question 45), and he wasnot sureif the fact that appellants were brothers would influencehis decision-making (Question 46). (25 3 SCT 7291-7292.) Counselstipulated to excuse Jeffrey L. for cause. Based onthat stipulation and the court’s agreementthat his answers were “unusual” and “weird,” the court excused Jeffrey L. for cause. (24 RT 3868.) Prospective juror Kay T. was dismissed for cause after the court and the parties conductedoral voir dire and asked Kay T. about her present mental status. KayT.indicated she was taking two medications, Klonopin andProzac, to treat her long-term depression and anxiety. (25 RT 4086-4087.) The prosecution was concerned that Kay T. was “underestimating the emotional drain that a trial like this could be” and did not think she would be a “good juror for either the subject matter ortrial of this length.” He believed that because Kay T. needed two medications to maintain an even keel in her daily life, the “considerable amountofstress” from hearing and decidingthis case would have a negative impact on her mental health. (25 RT 4088.) Self’s counselstipulated, and the court excused Kay T.for cause. (25 RT 4088-4089.) Kay T.’s delicate mental health situation caused the parties to question her capacity to handle a case of this magnitude, and thus, she was properly discharged onthis basis. In her questionnaire, Kay T. also gave disqualifying responses. She knew a prospective witness, Dr. Atkavi Sawadisavi, whom she saw for a workers compensation injury. (25 3 SCT 7134.) With regard to the death penalty, Kay T. believed the penalty was used too seldom and “Some crimes committed should be given the death penalty right away.” (25 3™ SCT 7150.) She also indicated she would automatically vote in favor of life without the possibility of parole if she convicted the defendant of felony murder and believed the death was accidental or unintentional (Question 79). (25 3° SCT 7156.) She was unsure if she would automatically vote against the death 120 penalty if she convicted the defendant of murder underan aiding and abetting theory and did not believe he wasthe actualkiller (Question 80). (25 3™ SCT 7157.) She was also unsure as to whether there were situations where she would automatically vote for the death penalty without considering aggravating and mitigating factors (Question 76.D.). (25 3 SCT 7155.) Prospective juror Randy M.wasdismissed by stipulation based onhis strong bias against appellants andhis inability to conscientiously consider all sentencing alternatives. Randy M.indicated strong bias against appellants given the nature of the charges (“appeared to be a gang type action”), the fact appellants were brothers(“seemslike they are together causing harm”), and the fact they were arrested (“Usually people are notplaced in custody for nothing ‘especially brothers.’”). (23 3rd SCT 6693, 6700, 6702.) Randy M.also stated he wouldrequire a defendantto testify in order to acquit him, could notbe fair and impartial towards those with different lifestyles, would findit difficult “to judge another man based on humanevidence,” would havedifficulty judging all witnesses by the same standards, and would give the “laws of God” precedence over the court’s instructions. (23 3rd SCT 6693, 6702-6704.) Randy M.wasagainst the death penalty, would automatically refuse to find the defendant guilty to prevent the penalty phase from occurring because ofhis anti-death views, believed he would automatically vote against the death penalty but could not“say for certain,” and would notbe able to put aside his personal feelings about the death penalty and follow the law. (23 3 SCT 6706, 6709-6711.) In the end, Randy M. madeit very clear he could notbe fair and impartial: I havetried to see the fairness of this from whatlittle I know, but as I stated before I unfortunately see brothers accused with several violent crimes as a very strong potential of being guilty. I would not like ‘his assumption to poision [sic] my judgement. Also, the potential of gang activity also makes mesick andasthese brothers are hispanic and come 121 from an area of gangrelatedactivity,I think my feelings would override my judgment. (23 3SCT 6714.) Prospective Juror Ron U. was dismissed by stipulation for cause given his “extremely bizarre, unusual” answers which indicated “bizarre thought processes.” (27 RT 4315.) These bizarre thought processes reflected a strong likelihood ofdifficulty with the deliberative process and a potentialto alienate his fellow jurors, which amply supportedhis dismissal. In his questionnaire, Ron U. gave unusually in-depth and detailed responses to the questions, showing himself to be strongly opinionated,yet internally conflicted. (23 3" SCT 6609-6645.) Hesaid he was “torn between thow[sic] shall not judge and the law of Moses. Aneye for an eye.” (23 3SCT 6619.) He was unsure if the fact appellants were brothers would influencehis decision-making, and believed if appellants were arrested for “related crimes” showing “a pattern or m.o.,” he might havea bias against them. (23 3 SCT 6626, 6641.) He was also unwilling to use his common sense and commonexperience in evaluating the evidence, saying, “I don’t think so!!!” (23 3" SCT 6629.) When asked whether he believed the death penalty was used too often or too seldom he, stated, “It’s not a matter of how often!!! It’s a matter of how cruel, how deliberate, how often the crime is repeated. It depends on how much real sorrow. It depends on much more - or muchless. I don’t know!” (23 3° SCT 6632.) He also indicated he would automatically vote for life without parole if he convicted the defendant of felony murder but believed the killing was unintentional or accidental, stating “I would reserve the death penalty for deliberate 1st degree murder.” (23 3% SCT 6638-6639.) Accordingly, there wasnoerrorin excusing Yolanda B.-M.,Jeffrey L., Kay T., Randy M., and Ron U. In any event, any error in excusing these prospective jurors is not reversible, because reversal is not required for an error 122 in excusing a prospective juror for reasons unrelated to the prospective jurors’ viewson the death penalty. (People v. Holt (1997) 15 Cal.4th 619, 656, People v. Mickey (1991) 54 Cal.3d 612, 683.) The generalrule is that the erroneous exclusion ofa prospective juror for cause provides no basis for overturning a judgment. A defendanthas a right to jurors who are competent and qualified, but does not havethe right to any particular juror. (People v. Holt, supra, 15 Cal.4th at p. 656.) 2. Prospective Jurors Joshua V., Peggy K., Beatrice M., Pamela C., Brian S., And Michael H. Were Properly Dismissed Because Their Questionnaires Demonstrated Substantial Impairment Based On Their Views Toward The Death Penalty Prospective jurors Joshua V., Peggy K., Beatrice M., Pamela C., Brian S., and Michael H. were properly dismissed because their questionnaire responses demonstrated substantial impairment, including an inability to conscientiously considerall of the sentencing alternatives or an inability to set aside their personal views on the death penalty and follow the law. (People v. Avila, supra, 38 Cal.4th at p. 529; People v. Cunningham, supra, 25 Cal.4th at p. 975.) Prospective juror Joshua V.believed the death penalty was “wrong,but also in somecasesit may be right.” (23 3° SCT 6595.) Heindicated, because of his views on the death penalty, he would automatically vote in favor of the death penalty or automatically vote in favor of life in prison, without considering any of the evidence or any of the aggravating or mitigating circumstances. (23 3 SCT 6599-6600.) Asked if he could set aside his personal feelings on the death penalty, he responded, “Just like they do in Pacasan[sic], cut off their hand.” (23 3 SCT 6600.) Finally, he stated he would automatically vote for life imprisonment without parole for aiders and 123 abettors ofmurder (Question 80) and in a felony murder where the killing was unintentional or accidental (Question 79). (23 3 SCT 6601-6602.) Prospective juror Peggy K. was reluctantto serve as a juror in a case involving graphic photographs because she does not “like violence” and preferred not to serve on a murdertrial given the potential for extremestress. (25 3% SCT 7064, 7083-7084.) She preferred the sentence of life without parole “in most cases.” (25 3" SCT 7076.) Although she “believe[d]” she could set aside her personal feelings on the death penalty and follow the law, she was “not sure” as to whether she would automatically vote in favoroflife imprisonment without parole at penalty. (25 3 SCT 7080-7081.) She ultimately stated that, in a felony murdersituation where the killing was unintentional or accidental, she would automatically vote in favor oflife withoutthe possibility of parole (Question 79). (25 3" SCT 7082.) Prospective juror Beatrice M. believed it would be difficult or impossible for her to serve as a jurorin this case because she was unsure if she could “bear the responsibility of deciding on someone’s rightto [live].” (29 34 SCT 8322.) Shealso believed herreligious views would make it difficult or impossible to serve as a jurorin this case,stating, “I believe that Godis the only one that can take our lives away.” (29 3% SCT 8322.) Beatrice M. was reluctant to serve because she becomes emotionally disturbed by graphic photographs. (29 3 SCT 8323.) Asto her general feeling toward the death penalty, Beatrice M.again stated her belief that “Godis the only one that can ‘take a life away,” and madeit very clear that her views were based on her Catholic faith. (29 3" SCT 8335-8336.) She was unsure as to whether she would everrefuse to find a defendantguilty offirst degree murderor a special circumstancejust to prevent the penalty phase from occurring, and was also unsure as to whether she would automatically vote for life without parole (Questions 76 A.-D.). (29 3 SCT 8338-8340.) She thought she could set 124 aside her personal feeling about the death penalty but also thought her views would “probably” preventor substantially impair herability to conscientiously consider both punishments (Questions 76 F., G.). (29 3 SCT 8340.) Beatrice M.said she would automatically vote in favor oflife imprisonment without parole in a felony murdersituation where the killing was unintentional or accidental. (29 3% SCT 8341.) Beatrice M.did not believe she could befair and impartial to the parties given her views on the death penalty. (29 3% SCT 8343.) Prospective juror PamelaC.stated she “would havedifficulty sentencing a person to death,” and “would need to do much soul searching,and evidence could leave no room for doubt.” She believed these feelings would makeit difficult or impossible for her to be fair and impartial. (43 3" SCT 12572, 12585, 12592.) She indicated it would be “very difficult” for her not to automatically vote forlife imprisonmentor automatically refuseto vote for the death penalty (Question 76 C.). (43 3° SCT 12589.) When askedifshe could set aside her personal feelings on capital punishment and follow the law, she said she would haveto, but wasstill unsure whether her views would prevent or substantially impair her ability to conscientiously consider both penalties (Questions 76 F., G.). (43 3° SCT 12590.) Pamela C.did indicate, however, that she would automatically vote in favoroflife imprisonmentwithoutparole in a felony murdersituation where the killing was unintentional or accidental (Question 79C). (43 3% SCT 12591.) Prospective juror Brian S., when askedto givehis feelings on the death penalty, indicated that becoming a venireperson on this case had sparked an “inner conflict” regarding his views on the death penalty and therefore he preferred not to serve. (24 3 SCT 6750.) Hestated: Generally, I am pro death penalty - however when it was announced that this case was a possible death penalty situation- I felt very 125 uncomfortable with myposition,i.c., let otherjuries have that decision. “Lord- let this cup pass unto me.” (24 3SCT 6743.) He also stated he had not “reflected” on his capital punishment views “heretofore, or sufficiently.” (24 3 SCT 6750.) Brian S. believed the death penalty was used too seldom “at least if I am not involved as a sentencing juror.” (24 3" SCT 6743.) He said he would automatically vote in favoroflife in prison withoutthe possibility ofparole in a felony murdersituation where the killing was unintentional or accidental. (24 3% SCT 6749.) In fact, he disagreed with felony-murderdeath-eligibility so strongly that he wanted to know the law and precedent supporting it. (24 3 SCT 6749.) In addition to his death penalty views, Brian S. also revealed some potential bias against defendants because one of the charges involved the attempted murder of a police officer. Brian S. believed “the killing of a police officer is on a slightly different plan than otherkillings. ...” (24 3 SCT 6752.) Brian S.also said he would give the judge’s instructions “added weight,” but did not necessarily say he would follow thoseinstructions if they conflicted with his own opinions (Question 64). (24 3" SCT 6741.) Prospective juror Michael H. declined to fill out much of the questionnaire, including the capital punishment questions, and many answers were unintelligible or bizarre. (34 3SCT 9741-9778.) However, whenasked ifhe belonged to a groupthat advocates the increaseduseor the abolition ofthe death penalty, Michael H. respondedin the affirmative, saying the group was “Killers.” (34 3 SCT 9766.) Hesaid he “maybe”shared this group’s views, and held those viewsstrongly. (34 3° SCT 9766.) Michael H.also said his views on capital punishment would substantially impair or prevent him from conscientiously considering both penalties. (34 3 SCT 9770.) In addition, 126 Michael H.said the fact that the defendants were brothers would influencehis decision-making because “It’s the law.” (34 3 SCT 9759.) Each and every oneofthese prospective jurors indicated an inability set aside their own beliefs and follow the law, an inability to conscientiously considerall sentencing alternatives, or were undecided ontheir ability to do so. (See People v. Cunningham, supra, 25 Cal.4th at p. 926.) All of the prospective jurors except Michel H. unequivocally stated that they would automatically vote in favoroflife in prison without the possibility ofparole in a felony murdersituation wherethe killing was unintentionalor accidental, and JoshuaV.indicatedother situations where he would automatically vote forlife imprisonment. Although Michael H.did not indicate he would automatically vote for one punishmentor another, he gave bizarre answers about a group to which he belongedcalled “Killers” that advocated in favor or against the death penalty, and said his views on capital punishment would prevent or substantially impair his ability to conscientiously consider both punishments. Since these prospective jurors answered questions in a manner which demonstrated they would “automatically” vote in ways precluding the death penalty, they were clearly disqualified under Witt. (See People v. Avila, supra, 38 Cal.4th at p. 531.) In sum, even if this Court nullifies Self’s stipulations to these prospective jurors, there was no error in dismissing them for cause based on their death-penalty views. They gave answersthat were clear, unequivocal and internally consistent demonstrating their unwillingness to impose the death penalty under certain circumstances. The prospective jurors were properly dismissed becausetheir questionnaires, viewed as a whole,reflected that their viewson capital punishment would prevent or substantially impair them from performingtheir duties in accordancewith their oath and theinstructions. (See People v. Avila, supra, 38 Cal.4th at 531-533.) 127 Il. SELF WAIVED HIS CLAIMS OF PROSECUTORIAL MISCONDUCT, AND IN ANY EVENT, HIS CLAIMS LACK MERIT Self contendsthe prosecutor committed prejudicial misconduct during voir dire by improperly targeting Hispanic jurors and by misleading the jury with regard to the nature of mitigating evidence. (SAOB 198-208, 216-225.) Self also contends the prosecutor committed prejudicial misconduct, both in his guilt-phase opening statement and closing argument, by repeatedly vouching for the credibility ofprosecution witness Jose Munoz. (SAOB 208-215.) Self claimsthatthe alleged misconduct deprived him ofdue process,a fair trial, and a reliable determination of guilt and penalty, and thus compels reversal ofboth the guilt and death judgments.*” (SAOB 226-235.) By failing to object and request admonishment at trial, Self waived his claims of prosecutorial misconduct. In any event, the prosecutor committed no misconduct. The standard to review claims of prosecutorial misconduct is well- settled. As this Court set forth in People v. Carter, supra, 36 Cal.4th at p. 1215: The applicable federal and state standards regarding prosecutorial misconduct are well established. A prosecutor's . . . intemperate behavior violates the Federal Constitution when it comprises a pattern 47. Self asserts that the prosecutor’s alleged misconduct denied him his constitutional right to effective assistance ofcounsel (SAOB234), but he does not develop this bare assertion with any legal argumentor citation to authority. ““Bvery briefshould contain a legal argumentwithcitation ofauthorities on the points made. Ifnoneis furnished on a particular point, the court may treat it as waived,andpassit without consideration. [Citations.]’ [Citations.]” (People v. Stanley, supra, 10 Cal.4th 764, 793; see also People v. Ramirez, supra, 39 Cal.4th at p. 441, fn.8; Cal. Rules ofCourt, Rule 8.204(a)(1)(B).) Because Self “nerfunctorily asserts [this claim], without developmentand, indeed, without a clear indication that [it is] intended to be [a] discrete contention], [it is] not properly made, and [should be] rejected on that basis.” (People v. Turner, supra, 8 Cal.4th at p. 137, fn. 19; see also People v. Smith, supra, 30 Cal.4th 581, 616,fn. 8.) 128 of conduct so egregiousthat it infects the trial with such unfairness as to make the conviction a denial ofdue process. Conduct by a prosecutor that does not rendera criminaltrial fundamentally unfair is prosecutorial misconduct understate law only if it involves the use of deceptive or reprehensible methodsto attempt to persuadeeither the court or the jury. As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—andon the same ground—the defendant [requested] an assignment of misconduct and [also] requested that the jury be admonished to disregard the impropriety. Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. (Id. at pp. 1263-1264,internal citations and quotations omitted, bracketed material in the original.) In the instant case, Self failed to object to any of his current claims of misconductin thetrial court, nor did he request admonishment. Self thereby waived all of his allegations of prosecutorial misconduct, and they should not be considered on appeal. In any event, there was no misconduct. A. The Prosecutor Did Not Improperly Target Hispanic Jurors During Voir Dire Self claims that during voir dire the prosecutor “improperly and repeatedly focused on [Hispanic prospective jurors] . . . [with] tactics tantamount to exclusion based on race.” (SAOB 199.) He furtheralleges: “The prosecutor’s goal in focusing on Hispanic prospective jurors during voir dire was clear — the elimination ofall eligible, qualified Hispanic prospective jurors from the final jury pool. These tactics proved successful. .... No regular 129 or alternate Hispanic jurors were selected.”48 (SAOB 199.) Self’s claim is without merit. First, as demonstrated in ArgumentII, Selfnever lodged any objections to the race and ethnicity question. (10 RT 2051-2054, 2060-2068, 2071.) Nor did Self ever raise a claim of racial bias, claim that Riverside County’s jury selection criteria was infirm with respect to race andethnicity, claim that his jury was not drawn from a representative cross-section of the community, or claim that the prosecutor improperly targeted or dismissed prospective jurors based on raceor ethnicity. Accordingly, having failed to make specific and timely objections on these groundsin the trial court, he is now barred from asserting such claims on appeal. (People v. Abilez, supra, 41 Cal.4th at p. 493 [failure to object to alleged improper questioning or alleged prosecutorial misconduct during voir dire waives such claims on appeal]; People v. Thornton, supra, 41 Cal.4th at p. 462 [defendant barred from raising Batson-Wheeler challengeforfirst time on appeal]; People v. Rogers, supra, 39 Cal.4th at p. 858 {defendantbarred fromraising fair cross-section claim on appealfor failure to objectat trial]; People v. Seaton, supra, 26 Cal.4th at p. 700 [defendantfailed to object to jury panel on the ground thatcertain racial or ethnic groups were underrepresented, and he is thus precluded on appeal from raising a claim that the panel wasracially or ethnically unbalanced.) 48. Self contends there were no Hispanicson his jury, either seated or alternates. (SAOB 198.) However, as discussed in ArgumentII, Alternate No. 2 (wholater became Juror No. 14 whenshe replaced a seated juror on the first day oftrial) identified herself as Black/Belizean in her jury questionnaire. (3 SCT [Redacted Jury Questionnaires] 669; 31 RT 4861-4862, 4866.) Based on this response, Juror No. 14 could be classified as “Hispanic.” 130 Second,Self’s claim ofrace-basedtargeting is completely unsupported by the record. Citing the questioning of a mere six Hispanic jurors”, Selfleaps to the conclusion that these examplesreflect a “pattern [that] was repeated over and over during voir dire.” (SAOB 201.) This is simply false, and Selfignores two importantrealities: (1) the questioning of these Hispanic jurors was warrantedby their responses and information contained in their questionnaire; and (2) the prosecutor also asked numerous and probing questions of non- Hispanic jurors, which was again dependent upon their responses and the information contained in their questionnaire. For example, with regard to prospective juror Samuel G., most ofthe prosecutor’s questions focused on two of Samuel G.’s responses in his questionnaire, namely, his statement that he would not change his vote in deliberations even if he was shownthathis initial conclusion was wrong and his indication that he would automatically vote forlife without parole in a non- shooter-liability situation. (23 RT 3781-3783; 19 3% SCT 5461-5497.) Andthe “19 detailed and specific questions” (SAOB 201) posed to Samuel G. were immediately preceded by 31 detailed and specific questions asked of a Caucasian prospective juror, Julia R. (23 RT 3766-3772, 3778-3779, 19 34 SCT 5389.) With regard to prospective juror Frank M., again the prosecutor’s questions properly focused on Frank M.’s questionnaire responses, namely, his dislike of the death penalty and his preference for life in prison. The prosecutor’s questions are most fairly interpreted as attempts to rehabilitate Frank M.and evaluate his ability to serve. (23 RT 3819-3820, 3830-3833, 49. Self highlights the questioning of Samuel G. (23 RT 3780-3783), Frank M. (23 RT 3830-3832, 3840, 3842, 3856), Deborah P. (25 RT4129- 4135, 4147-4150), Isabel R. (25 RT 4151-4153), Rose A. (23 RT 3838-3840, 3849-3851), and Richard Z. (24 RT 3983-3985, 3996, 4000-4001.) (SAOB 200-205.) 131 3840-3843, 3856; 31 3° SCT 8830-8866.) Likewise, the prosecutor’s questions to Rose A. centered around responses she gave during voir dire. Rose A. expressed her support of the death penalty, but said “some people have questioned mefor that becauseofmyreligion.” (23 RT 3850.) Based onthis response and herinvocation ofreligion, the prosecutor understandably asked RoseA.aboutherreligious background and whetherit would impact herability to serve as ajuror. (23 RT 3850-3851.) On the panel with Frank M.and Rose A. was Linda L., a Caucasian, whom theprosecutor asked approximately 27 detailed questions. (23 RT 3835-3838, 3844-3846, 3849, 3856; 31 3% SCT 8980.) With regard to prospective juror Richard Z., he indicated in his questionnaire and during voir dire that he was unsure if he could impose the death penalty based on circumstantial evidence or without proof “far beyond reasonable doubt.” (24 RT 3984-3985, 3996-4001 26 3 SCT 7423-7459.) The prosecutor understandably explored this topic with Richard Z., and the defense ultimately challenged Richard Z. for cause, removing him from the jury pool. (24 RT 4003.) Prospective juror Patricia B., a Caucasian, was on the samepanel as Richard Z. While the prosecutor asked RichardZ. approximately 19 questions, the prosecutor asked Patricia B. approximately 29 questions. (24 RT 3979-3983, 3985-3986; 20 3" SCT 5686.) Prospective jurors Isabel R. and Deborah P. appeared on the samepanel. The “15 questions” (SAOB 202) posed to Isabel R. stemmed from her expressed difficulty to vote for the death penalty for a non-shooter. (25 RT 4151-4153: 22 3° SCT 6313-6349.) Similarly, the “38 questions” (SAOB 202) posed to Deborah P. centered around two responses she gave in her questionnaire, namely, that herfirst husband was murderedandthat the death penalty “scares” her. (25 RT 4129-4135; 23 3 SCT 6424-6430.) The prosecutor properly explored these areas with Isabel R. and DeborahP.in order 132 to determine their capacity to serve as jurors. Prospective juror Burma M., an African-American, appeared on the same panel as Isabel R. and Deborah P. The prosecutor posed approximately 45 questions to Burma M.. (25 RT 4135- 4145; 22 3% SCT 6352.) Asis evident from a close review ofthe record, the prosecutor in no way unfairly targeted Hispanicjurors for questioning. The prosecutor explored the prospective jurors’ capacity to serve as jurors on capital case,ashis is right and responsibility. Self’s claim of race-based targeting is completely unfounded. Third, Self fails to show the prosecutor’s questioning resulted in the improper exclusion of Hispanic jurors. All of the prospective jurors cited by Self either were not challenged for cause by either side and remainedin the jury pool (Samuel G., Frank M., Rose A., Deborah P., Isabel R.), or were challenged for cause by the defense (Richard Z.). (23 RT 3790-3793; 24 3860-3861, 4003; 26 RT 4155-4158.) As discussed in Argument II, by random chance, no Hispanics madeit into the jury box during selection ofthe regularjury, and Self accepted the panelas constituted. (29 RT 4649; 30 RT 4744-4745, 4747, 4753, 4756-4762; 33 3 SCT 9522; 40 3% SCT 11595; 41 3% SCT 11965; (3 SCT [Redacted Juror Questionnaires] 632, 706, 743, 780, 817, 4 SCT [Redacted Juror Questionnaires] 891, 928, 965, 1002, 1113; 5 SCT [Redacted Juror Questionnaires] 1150, 1185.) During the selection of alternates, a random selection was used as well, and only one Hispanic juror made it into the jury box. The prosecutor used a peremptory challenge to excusethis juror, Isabel R., and Self did not object or otherwise allege that the prosecutor used the peremptory based on race.(30 RT 4762-4776.) After each side used four 50. As previously discussed in ArgumentII, it is clear the prosecutor’s challenge was based on information Isabel R. disclosed during voir dire rather than her race. Isabel R.’s husband was a Los Angeles County Deputy Sheriff, and she worked for the Los Angeles County Sheriff's Department as well, as 133 peremptory challenges, Selfaccepted the panel as constituted, again not raising any race-based objection. (30 RT 4762-4776.) Clearly, the alleged underrepresentation of Hispanics on Self’s jury was the result of chance and valid dismissals, rather than any systematic excusal of Hispanicsas a group. Self has utterly failed to set forth any evidenceto the contrary. Finally, Self fails to show how the prosecutor’s valid questioning of prospective Hispanic jurors resulted in a biased jury. (SAOB 206, 208.) As demonstrated in Respondent’s Argument X,infra, Self’s jury was not biased, and Selfwas in fact was affordedhisrightto a fair and impartial jury. Further, there is no reasonable likelihoodthat a seated juror construedor applied any of the complained-ofvoir dire questions in an objectionable fashion as posited by Self. In sum, there was no misconduct, and this Court should reject Self’s claim. B. The Prosecutor Did Not Mislead The Jury On The Nature Of Mitigating Evidence Self contends that during voir dire the prosecutor “repeatedly misrepresented the nature of mitigation evidence, improperly insinuated that appellant bore a burden of proof as to mitigation, and insinuated that the absence of mitigating evidenceofthe sort described by the prosecutor might amountto aggravation.” (SAOB 216.) In support of this claim, Self cites to several instances where the prosecutor gave prospective jurors abstract illustrations of evidence in mitigation,e.g.: a data entry clerk. In her questionnaire, Isabel R. indicated she would automatically vote for life without parole for an unintended felony murder, and equivocated onthis pointin oral voir dire. Her questionnaire also indicated that she believed her views on capital punishment (“‘an eye for an eye”) would prevent or substantially impair her conscientious imposition of either punishment. (22 3SCT 6315-6317, 6336-6343; 25 RT 4151-4153). 134 You mayhear evidence in mitigation, things, perhaps the defendant was a war hero. Perhapshe savedhis platoon in the Persian Gulf and received a Silver Star. Perhaps he once pulled a family from a burning car. Perhaps he once gave bone marrow ina transplantso that a child could survive. Perhaps you may hear evidence that would make you have sympathy for him,all of which you can consider in making your [penalty] decisions. (23 RT 3765-3766.) or You can also hear evidence of a mitigating nature about the defendant. Perhaps one time he pulled a family out of a burningcar; perhapshe once was a bone marrow donor; maybe he was a warhero; maybe he was a soccer coach and a Scout leader and had a positive effect on young people. (23 RT 3903; see also 25 RT 4047, 4126; 26 RT 4210; 27 RT 4402; 28 RT 4541-4542; 29 RT 4612.) Self acknowledgesthat this Court rejected identical misconduct claims in People v. Seaton, supra, 26 Cal.4th at p. 598 and People v. Medina (1995) 11 Cal.4th 694, both of which involved remarks by a prosecutor strikingly similar to the prosecutor’s remarks in the instant case, but asks this Court to reexamine these decisions. (SAOB 225-226.) Selfoffers no persuasive reasons to do so, and accordingly, this Court should reject Self’s contentions. In People v. Seaton, supra, 26 Cal.4th at p. 598, the prosecutor, in conducting voir dire andtoillustrate mitigating evidence, “often mentioned a hypothetical defendant who had received the Congressional Medal of Honor, | was a war hero, had saved someone's life[.]” (Jd. at p. 635.) Similarly, in People v. Medina, supra, 11 Cal.4th at p. 694, the prosecutor “indicated to several ultimate jurors that mitigating evidence was the kind of evidence showing the ‘positive factors’ in defendant's life, such as being a war hero or Boy Scout leader.” (/d. at 741.) In both cases, this Court held: The prosecutor's statements, though somewhatsimplistic, were not legally erroneous, and defendant had ample opportunity to correct, 135 clarify, or amplify the prosecutor's remarks through his own voir dire questions and comments. Moreover, as a general matter,it is unlikely that errors or misconduct occurring during voir dire questioning will unduly influence the jury's verdict in the case. Any such errors or misconduct "prior to the presentation of argumentor evidence, obviously reach the jury panel at a muchlesscritical phase of the proceedings, before its attention has even begun to focusuponthe penalty issue confrontingit.” [Citation.] (People v. Medina, supra, 11 Cal.4th at p. 741; accord People v. Seaton, supra, 26 Cal.4th at p. 636.) Notably, defense counseldid in fact amplify the prosecutor’s illustrations of mitigating evidence, in a few instancestelling the jury: [W]e would present mitigating factors, things that we would want you to considerin terms of makingthis decision, and those mitigating factors can be anything. There has been previous examples given by [the prosecutor] of , you know, doing a heroic act, for example, or saving somebody from a burningcar, a burning building, providing a bone marrow transplant. WhatI am telling you is, I don’t wantyou to have any preconceived notion as to whatmitigating factor might be present. If the only people that deserve life without parole would be heroes, nobody would probably receive it. Do you follow me? (26 RT 4176; see similar remarks at 25 RT 4100, 4116; 26 RT 4187; 28 RT 4451, 4519.) Defense counsel also discussed mitigating evidence in more general terms or gave the jury its ownillustrations of mitigating evidence. (23 RT 3743, 3746, 3812, 3822; 25 RT 4096; 29 RT 4591.) Indeed, the defense not only had “ample opportunity to correct, clarify, or amplify the prosecutor's remarks through his own voirdire questions and comments”; it actually did so. (People v. Seaton, supra, 26 Cal.4th at p. 636; People v. Medina, supra, 11 Cal.4th at p. 741.) Finally, after the conclusion ofthe penalty phase, the court instructed Self’s jury with multiple instructions concerningthe nature and scope 136 of mitigating evidence, including special instructions crafted by the defense. (9 CT 2057-2058, 2061-2064, 2068, 2081-2082; 54 RT 8145-8147, 8152-8154, 8158-8160.) In sum, the prosecutor’s remarks concerning mitigating evidence were proper,andthere is no reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. C. The Prosecutor Did Not Impermissibly Vouch For The Credibility Of Jose Munoz Self asserts that the prosecutor “repeatedly vouched for the credibility andtruthfulness ofaccomplice Jose Munoz”andcites to several passages in the prosecutor’s opening statement and closing argument in support of his assertion. (SAOB 208-215.) A fair reading of the record, however, demonstrates no misconduct. The prosecutor's statements here did not constitute vouching, but were instead permissible assurances ofwitness honesty andreliability based on reasonable inferences from the record. Impermissible vouching occurs “‘where the prosecutor places the prestige ofthe governmentbehinda witness through personal assurances ofthe witness's veracity or suggests that information not presented to the jury supports the witness's testimony.”” (People v. Zambrano (2007) 41 Cal.4th 1082, 1167, quoting People v. Fierro (1991) 1 Cal.4th 173, 211.) However,“‘so long as a prosecutor's assurances . . . are based on the “facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledgeor belief,” [his] comments cannot be characterized as improper vouching.’” (People v. Zambrano, supra, 41 Cal4th at p. 1167, quoting People v. Frye, supra, 18 Cal.4th 894, 971, and citing People v. Medina, supra, 11 Cal.4th at p. 757.) All of the prosecution statements cited by Self amountto 137 legitimate, reasonable inferences drawn from the record, and do notconstitute vouching. With regardto Self’s twocitationsto the prosecutor’s opening statement (SAOB 208-210),it is clear the prosecutor was simplytelling the jury what he expected the evidenceto establish, namely that: Munoz was an “eyewitness” who“agreedto testify truthfully in exchange for a deal”(31 RT 4925); Munoz “understandsthat his deal. . . is only goodif hetestifies truthfully’ (31 RT 4925); Munoz has demonstratedhis truthfulness by disclosing his commission of a crime previously unknown to the prosecution prior to the plea deal (“Because he wasafraid that we wouldfind out about that independently ofhim and revoke his deal, he brought it up on his own”)(31 RT 4925-4926); and Munoz’stestimony wouldalign with the facts as described by the prosecutor (“Hetold [the police] essentially what I have beentelling you”)(31 RT 4923). The prosecutor’s description ofthis anticipated evidence was wholly proper and did not amount to vouching. With regard to Self’s numerouscriticisms of the prosecutor’s closing argument (SAOB 210-211),it is again clear the prosecutor was simply urging the jury to accept Munoz’s testimonyas truthful and arguing the veracity of Munoz’s testimony based on reasonable inferences from the record. In discussing the Mills-Ewy shooting, the prosecutor argued that Munoz’s spontaneous admissionsto this crime about which the police were previously unaware, coupled with Munoz’s specificity and insistence aboutSelffiring the shotgun over the car roof, demonstrated his trustworthiness. The prosecutor argued: From the very beginning he said that’s what happened.... Why would he make up somestory like somebody leaning out the window and shooting overthe car? ... If he were inclinedto lie. . . he would havejust said that was Chris Selfsitting in that seat with the shotgun. He would have blamed Chris. He would have switched places. ... One final point about this. Munozis the first person to ever mention this 138 incident. When he wasbeing interviewed,the officers didn’t... even know aboutthis incident. ... And I would submit he did because he knew he wasn’t the one that had fired the shotgun. (45 RT 6723-6725.) In discussing Munoz’s testimony as a whole, the prosecutor reminded the jurors of Munoz’s demeanor and attitude during direct and cross- examination, and argued Munoz was “frank and straightforward” in his testimony. The prosecutoralso argued that Munoz’s testimony was “consistent with whatthe other evidence is showing you, and with things that he hassaid before.” (45 RT 6738-6739.) In accounting for Munoz’s initial denials to the police, the prosecutor argued that after the police continually exhorted Munoz to tell the truth (“they wanted the truth” and “made him no promisesordeals”), Munozfinally “broke.” (45 RT 6742.) The prosecutor contended that Munoz’s statements to the police recounting appellants’ crimes were trustworthy because Munoz was “too scared” and “talking too fast” to be “making up lies so convincingly thatlater fit so well with all the other facts.” (45 RT 6742.) At the end of his argument, the prosecutor reminded jurors that because of Munoz’sstatementsto police, appellants’ crime spree cameto an end (“Thank God for Munoz. His talking when he did put an end to the killing and the robbing.”), and because ofMunoz’s trial testimony,they had a full accounting of Self’s participation and guilt to the crimes charged. (45 RT 6750.) In sum, the prosecutor askedthejury to believe Munoz’s testimony, based on common sense and reasonable inferences from the record. This is a wholly proper argument, and there is no reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. In conclusion,each of Self’s misconductclaims fails to find support in the record or in precedent. The prosecutor here committed no misconduct, muchless that of a Constitutional dimension. Accordingly, this Court should 139 reject Self’s prosecutorial misconduct claims and affirm the judgmentin its entirety. IV. TESTIMONY REGARDING THE FELTENBERGER ROBBERY-SHOOTING WAS PROPERLY ADMITTED AS RELEVANT EVIDENCE ESTABLISHING ROMERO’S GUILT TO THE RECEIVING STOLEN PROPERTY CHARGE AND SUPPORTING THE CREDIBILITY OF JOSE MUNOZ Romero contendsthetrial court erred whenit allowed his jury to hear testimony concerning the circumstances of the Feltenberger robbery and shooting, a robbery-shooting in which only Self and Munoz participated. (RAOB 301-313.) Romero insinuates that the prosecution only charged him with receiving Feltenberger’s stolen property (Count XX) in orderto inflame the jury with a “gruesome” account of the circumstances surrounding the robbery-shooting, and the trial court then improperly allowed the prosecution to elicit irrelevant and admissible testimony to prove up the “innocuous” charge. (RAOB 301-302, 305-309.) Romero asks this Court to reverse his judgmentofdeath because the admission ofthe testimonyviolated his rights to due process oflaw anda fair andreliable penalty determination. (RAOB302, 309-313.) As previously demonstrated, Romero’s receiving stolen property charge (Count XX) was properly joined, and in orderto establish that charge, the prosecution needed to prove that Feltenberger’s property was stolen, Romero possessed the stolen property, and Romero knew the property was stolen. Feltenberger’s testimony wascrucialto establishing these elements and proving Count XX. Also, because Feltenberger’s testimony conceming the robbery-shooting matched Munoz’s account ofthe crime, the evidence was highly probative of Munoz’s credibility with regard to the other charges. By contrast, there was little risk of undue prejudice, as the circumstances surroundingthe Feltenberger shooting were no moregraphic or gruesomethan 140 the circumstances surrounding the other charges. Finally, even assumingerror, there is no reasonable possibility Romero would have received a more favorable result had the evidence not been admitted. Prior to trial, Romero movedto exclude evidence of the Feltenberger robbery-shooting, arguing the particular circumstances surroundingthe crime werenotrelevantto establishing the receiving stolen property charge and would be moreprejudicial than probative (Evid. Code, § 352). Romero contendedthe prosecution wanted to inflame his jury with evidenceof“an attempted murder of a police officer ... which [Romero] had nothingto do with.” (30 RT 4700- 4701.) Romero argued admission of the evidence would notonly inflame the jury during the guilt phase, but also as to penalty. (30 RT 4701.) The prosecutor countered that Feltenberger’s testimony was crucial to establishing: (1) the property was in fact stolen, and (2) Romero knewit was stolen when he possessed it. (30 RT 4697.) Hestated: “It is essential . . . to hear from the victim from whom it was stolen, who can identify .. . the property, and indicate the manner in whichit left his possession.” (30 RT 4698.) The prosecution noted that although Munoz would also testify to the circumstancesofthe Feltenberger robbery-shooting, his accomplice testimony required corroboration, which would be supplied by Feltenberger. (30 RT 4712-4713.) Additionally, the prosecution argued the evidence was both cross- admissible and highly probative of Munoz’s credibility, considering the entire defense case centered around attacking Munoz’s credibility and this was the only crime where Munoz’s account was supported by another eyewitness. The prosecution stated: Jose Munoz will testify that he was present at the scene of the Feltenberger incident. That he waitedin the car, and that Christopher Self shot Mr. Feltenberger with a 20-gauge shotgun, which later was found out to be containing a Sabot round. 141 Thecredibility of Jose Munozis going to be essential to both the People andthe defense. The defense, including Mr. Romero, is going to be trying to attack the credibility of Mr. Munoz in many ways. Mr. Munoz says Gene Romero shot and murdered Joe Mansat the Lake Mathewshillside. He said that Gene Romero ran downthehill with Christopher Self after the second victim, Timothy Jones. Jose Munoz says that Christopher Self shot numeroustimesat Jose Aragon. Hesaysthat he didn’t shoot anybody. Munozsays that he did not shoot anybody ateither the Lake Mathewssceneorthe Aragon scene. He says that he didn’t shoot the victim, Mr. Mills, wholosthis eye. The testimony ofMunozis very important andhis credibility is very important, and I would submitthat the defenseis goingto try everything they can to cast doubt on his credibility to make him the shooter instead of themselves. And so wehavethe Feltenbergerincident in whichhis testimonyis completely corroborated by the only surviving victim whocan I.D. his shooter. Jose Munoz’stestimony is almost completely corroborated by Mr. Feltenberger. Mr. Feltenbergerat the preliminary hearing and the photo lineup identified his shooter as Mr. Self. And that has tremendous implications as to Jose Munoz’s credibility, when Jose Munozsays he was not the shooter at Aragon, and when we knowthatthe samekind of shotgun round was used to shoot Aragon that was used to shoot Feltenberger. It becomescritical for the jury to know what happened in the Feltenberger matter. (30 RT 4702-4703.) The prosecution argued that by not admitting evidence of the Feltenberger robbery, Romero’s defense could more easily attack Munoz’s credibility, freely imply that Munoz was the actual shooterat all of the crime scenes, and ignore evidence that the same shotgun was used in both the Feltenberger shooting and the Aragon murder. (30 RT 4703-4704.) Finally, the prosecution noted that for purposes of Evidence Codesection 352, the evidenceofthe Feltenberger shooting was no more gruesomeorviolent than 142 any ofthe incidents in which Romero was involved, and thusthere waslittle risk of prejudice. (30 RT 4715.) Thetrial court ruled the evidence admissible as part ofthe prosecution’s “burden of proof” with regard to the receiving stolen property charge (Count XX), and offered to admonish the jury at the outsetthat “ there is not evidence whatsoever that [Romero] wasat the sceneor . . . was involved in the actual commission ofthe crime against Mr. Feltenberger. You mayonly considerthis evidenceasit relates to Mr. Romeroin terms of Count 20, the receiving stolen property.” (30 RT 4706, 4716-4717.) While discussing the issue with counsel, the court noted the evidence wascritical to establishing Count XX andthusit did not believe an explicit Evidence Code section 352 analysis was necessary, but nonetheless, the court indicated that even applyinga section 352 analysis, it would find the evidence more probative than prejudicial. (30 RT 4705-4706.) The court also admonishedthe prosecutornotto take the Feltenberger evidence out of contextas it relates to Romero and “not in any way infer or suggest that Mr. Romero wasinvolved in the shooting of Mr. Feltenberger.. . .” (30 RT 4717-4718.) Before Feltenberger testified, the court admonished Romero’sjury as follows: You are about to hear evidence in the form of testimony from John Feltenberger. This evidence is not being offered to show that the defendant Orlando Romero is involved in the alleged robbery and attempted murderofMr. Feltenberger. 51. The prosecutorstated: “The jury is going to hear how Mr. Romero was present when Jose Aragon was shot approximately 11 times, asked him howit felt, and then he went to lunch at Coco’s. ... [TJhere will be evidence that he actually shot another individual in the back;that he talked aboutkilling people on the way up;that he helped run down anotherindividual; that he was the driver in the Kenny Mills shooting in which a man hadhisface shot with a shotgun and then Mr. Romero was the wheel man that chased him as they tried to catch him... .” (30 RT 4715.) 143 Onthe contrary, there will be no evidenceprovided that Mr. Romero _. was involvedin this incident. Instead, this evidence is being offered as it relates to Count XX,receiving stolen property. Youare to considerit solely as it relates, one, whether the property wasin fact stolen, and two, whether Mr. Romero had knowledgethat the property wasstolen. (32 RT 4944.) Feltenberger thentestified to the circumstancesofthe robbery- shooting, as set forth in the Statement of Facts. (32 RT 4944-4970.) After Feltenberger’s testimony,the defense renewedtheir motion, this time with regard to other witnesses who wouldtestify to the Feltenberger crime scene and investigation, including the collection of sabot round fragments (similar to those used in the Aragon murder) and the recovery ofFeltenberger’s vehicle within a few blocks of Romero’s residence. (32 RT 4971-4973.) The prosecution arguedthe evidence tended to show Romero knew the property was stolen and further linked appellants with the Aragon murder, while creating little risk for prejudice. (30 RT 4971-4972.) Thetrial court ruled the evidence relevantto establishing Count XX, not “very prejudicial” to Romeroin light of the admonishmentgivento the jury, and not confusing, misleading,or requiring an undue consumption of time. (32 RT 4973.) Jose Munozlater testified to the circumstances of the Feltenberger robbery-shooting, which closely matched Feltenberger’s testimony. In addition, Munoz described Romero’sreceipt of Feltenberger’s ammunition pouch and Romero’s expressed desire to “take out” Feltenberger when helearned he was alive at the hospital. (39 RT 6012-6024.) The prosecution also presented evidence of Romero’s statement to police wherein he admitted to knowingly receiving Feltenberger’s stolen ammunition pouch. (2 3 SCT 323-324.) 144 Romero claims the trial court erred when it admitted this evidence because “the evidence had no probative value at all”2’ and was “grossly prejudicial.” (RAOB 305-308.) However, he does not contend that the alleged error was prejudicial to the guilt phase (RAOB 309); he only claims he was prejudiced with regardto the penalty determination. (RAOB 309-3 13.) There wasnoerror, and in any event, Romero wasnot prejudiced. "Only relevant evidence is admissible, and all relevant evidence is admissible unless excluded underthe federal or California Constitution or by statute." (People v. Scheid (1997) 16 Cal.4th 1, 13, citing Evid. Code, §§ 350, 351; People v. Crittenden (1994) 9 Cal.4th 83, 132.) “‘Relevant evidence’ meansevidence,including evidence relevantto the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputedfact that is of consequenceto the determinationofthe action.” (Evid. Code, § 210.) "Thetest of relevance is whether the evidence tendslogically, naturally, and by reasonable inference to establish material facts such as identity, intent, or motive." (People v. Guerra (2006) 37 Cal.4th 1067, 1117 [internal quotationsand citation omitted]; People v. Heard, supra, 31Cal.4th at p. 946.) Evidence mayberelevant and admissible for one purpose even though it is inadmissible for another purpose. (See Evid. Code, § 355; People v. Guerra, supra, 37 Cal.4th at p. 1117.) “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admissions will (a) necessitate undue consumptionoftime or (b) create substantial danger ofundue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) “Evidence is substantially more prejudicial than probative under 52. However, Romero later admits that “perhaps it would have been within the court’s discretion” to permit some testimony “corroborating Feltenberger’s identification of Self’? and “Munoz’s identity as the other perpetrator.” (RAOB 307.) 145 Evidence Codesection 352 if it poses an intolerable risk to the fairness of the proceedingsorthe reliability of the outcome.” (People v. Guerra, supra, 37 Cal.4th at p. 1114 [internal quotations and citations omitted].) “In applying section 352, ‘prejudicial’ is not synonymous with 'damaging.”” (People v. Coddington (2000) 23 Cal.4th’529, 588, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Instead, the "prejudice" referred to in Evidence Code section 352 is that which "uniquely tends to evoke an emotionalbias againsta party as an individual, while having only slight probative value with regard to the issues." (People v. Garceau (1993) 6 Cal.4th at 140, 178.) There is no requirement that the record expressly reflect the trial court's weighing or even the decision to weigh undersection 352. (People v. Crittenden, supra, 9 Cal.4th at p. 83.) The application of the ordinary rules of evidence generally does not impermissibly infringe upon a capital defendant’s constitutional rights. (People v. Prince (2007) 40 Cal.4th 1179, 1229.) Thetrial court has broad discretion in deciding the admissibility of evidence, and its evidentiary rulings will not be disturbed on appeal absent a showingofabuseofdiscretion. (Peoplev. Smithey (1999) 20 Cal.4th 936, 973; People v. Scheid, supra, 16 Cal.4th at p. 13.) Underthis deferential standard, there is no error and reversal is not required unless the defendant shows that the court exercised its discretion in an "arbitrary, capricious, or patently absurd manner" whichresulted in a “manifest miscarriage ofjustice." (Evid. Code, § 353, subd.(b) [verdict shall not be set aside based on the erroneous admissionofevidenceunlessthe error resulted in a miscarriage ofjustice]; People v. Guerra, supra, 31 Cal.4th at p. 1113; People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) The trial court did not abuse its discretion in admitting testimony concerning the circumstancesof the Feltenberger robbery-shooting. In order to establish Count XX, receiving stolen property, the prosecution needed to 146 prove: (1) Feltenberger’s property was stolen; (2) Romero possessed Feltenberger’s stolen property; and (3) Romero knew Feltenberger’s property was stolen at the time of his possession. (See Pen. Code, § 496; People v. Martin (1973) 9 Cal.3d 687, 695; In re Anthony J. (2004) 117 Cal.App.4th 718, 728; 7 CT 1650.) Althoughthe prosecution presented Romero’s admissionto possessing Feltenberger’s stolen property and Munoz’s testimony concerning Romero’s initial receipt ofthe stolen property, both ofthese formsoftestimony required corroboration. (See Pen. Code, § 1111 [conviction supported by accomplice testimony must be corroborated by other evidence]; People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1171 [discussing corpusdelecti rule,i.e., the prosecution cannotsatisfy its burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant].) Moreover, Romero’s admission to knowingly possessing Feltenberger’s ammunition pouch did not prove the pouch was in fact stolen from Feltenberger. The only way to prove the pouch was stolen was through Feltenberger’s testimony(either alone or as corroborating Munoz’s testimony), in which heidentified the pouch and described the robbery. Accordingly, Feltenberger’s testimonyidentifying the property and describing the robbery washighly relevant to establishing Count XX. Additionally, the evidence was highly probative ofMunoz’s credibility. The defense’s primary goal was to paint Munoz asa self-serving liar who was a more active participant in the crimes than he described. The fact that Munoz’sdescription ofthe Feltenberger robbery-shooting (in which he was not the shooter) matched the victim’s testimony ofthe crimesignificantly boosted Munoz’s credibility. (Evid. Code, § 210 [relevant evidence includes that relevant to the credibility of a witness].) As noted by the prosecutor, the Feltenbergerincident wasthe only crime in whichthe surviving victim could identify his shooter and in which Munoz’s identification of the shooter was 147 completely corroborated. Further, the particular circumstances of the Feltenberger crime (the sabot rounds and the use of the shotgun) tended to support appellants’ guilt in the Aragon murder,as the same shotgun andshells were used in that crime. If Feltenberger had not been allowed to testify, and thus not lend support to Munoz’s testimony,the defense would have been able to more easily attack Munoz’s credibility, freely imply that Munoz wasthe actual shooterin all of the murders, and ignore evidencethat the same shotgun and shells were used in both the Feltenberger shooting and the Aragon murder. Bycontrast, the evidence providedlittle potential for undue prejudice.” The court offeredto instruct, and ultimately instructed, the jury that there was “no evidence” that Romero was involvedin the Feltenberger robbery-shooting, the testimony was “not being offered to show” Romero was involved in that crime, andthere were only to considerit asit relates to proving Count XX. (32 RT 4944.) The jury heardthis instruction immediately before Feltenberger’s testimony, andat the conclusion ofthe guilt phase before deliberations. (46 RT 7050; 7 CT 1567.) Moreover, the testimony concerning the Feltenberger robbery-shooting was no more graphic, and was in fact less graphic and gruesome,than the evidence presented with regard to the other crimes. The jury heard how Romero,after luring Mansinto a false sense of security and telling him “everything was goingto beall right,” shot Mans in the back and then chased a fleeing Jones down thehill. They also heard how Romero 53. Althoughthetrial court did not expressly analyze the potentialfor prejudice under Evidence Code section 352, the court heard argument from counsel on this subject and indicated that even with an express section 352 analysis, it would find the evidence moreprobative than prejudicial. (30 RT 4700-4701, 4705-4706, 4715; People v. Crittenden, supra, 9 Cal.4th at p. 135 [no requirementthat the record expressly reflect the trial court's weighing or even the decision to weigh under section 352].) In its later ruling on the investigative evidence, the court made an express section 352 finding. (32 RT 4973.) 148 feigned interest in Aragon’s motorcycle racing to gain his trust, asked a wounded Aragonhowitfelt to be shot and whetherit burned, left Aragon to die in his truck bed with ten shots to his body and a two-inch gaping neck wound from the sabot round, and then sat down for lunch at Coco’s using Aragon’s money. Clearly, the circumstances of the Feltenberger robbery-shootingpale in comparison to the evidence of Romero’s vicious criminal conduct, and thus there waslittle to no potential for undue prejudice. In sum, given the high probative valueofthe Feltenberger testimony, the admonishmentgiven to the jury, and thelittle potential for prejudice in light of the other evidence,thetrial court did not abuseits discretion. In any event, any error was harmless underthe most exacting standard. (People v. Prince, supra, 40 Cal.4th at 1299 [admission of evidence at guilt phase harmless beyond reasonable doubt at guilt and penalty phases].) With regard to the guilt phase, Romero concedesanyerror in admitting the Feltenberger testimony “could not have affected[the jury’s] determination”as to Count XX. (RAOB 309.) This is not surprising. As previously demonstrated in the Statement of Facts, each and every crime, including Count XX’s receiving stolen property charge, was supported by overwhelming evidenceestablishing Romero’s guilt, and the jury was properly instructed to make separate findings on the charges and not to consider the Feltenberger testimony for anything other than Count XX. (46 RT 7050, 7087, 7091-7092; 7 CT 1567, 1652, 1663.) Indeed, Romero’s jury clearly was not unduly inflamed by the Feltenberger testimony and evidently considered each charge separately, as it ultimately acquitted Romero of the Steenblock robbery-kidnaping charges (Counts XIII & XIV). (8 CT 1724-1732, 1786-1835.) With regard to the penalty phase, there is no reasonable possibility the jury would have returned a more favorable sentence absent the Feltenberger testimony. (People v. Prince, supra, 40 Cal.4th at 1299 [evidentiary rulings at 149 guilt phase harmless at penalty phase if no reasonable possibility jury would have returned a more favorableverdict; this standard of review is the same as the federal “harmless beyond a reasonable doubt” standard]] People v. Jones (2003) 29 Cal.4th 1229, 1264,fn. 11 [same].) Throughoutthe course of the trial, the jury learned of Romero’saffinity for brutality: how he hunted his victims like prey, lured them into a false sense ofsecurity, and then violently attacked them without remorse. They learned how he continuedhis violence in pretrial confinement, attempted to escape, and showed complete disregard for humanlife. Romero’scase in mitigation offeredlittle by comparison. While he presented evidenceofchildhood abuseandneglect, the evidence also showed: Romero was guided by a devoted stepfather, loving grandparents, and other extended family members; his mother taught him right from wrong and the value of manners anda good education;closefriends gave him opportunities ~ to better his life which he squandered away;and his brothers raised in the same household achieved success in the military and rejected the criminal path chosen bytheir siblings. It is inconceivable that evidence concerning the Feltenberger robbery-shooting, yet another robbery-shootingin the long list of appellants’ crimes, somehowtippedthescales in favor of a death verdict. Thus, even assumingerror, there was no prejudice. V. SUBSTANTIAL EVIDENCE SUPPORTS SELF’S CONVICTIONS FOR ROBBERY IN COUNT XV (KNOEFFLER) AND ATTEMPTED MURDER, ATTEMPTED ROBBERY, AND MAYHEM IN COUNTS V THROUGHVII (MILLS-EWY) Self contends there wasinsufficient evidence to support his convictions for robbery in Count XV (Knoeffler) and attempted murder, attempted robbery, and mayhem in Counts V through VII (Mills-Ewy). (SAOB 259-277.) With 150 regard to Count XV, Self argues the evidence did not establish he aided and abetted Romero and Munozin robbing Albert Knoeffler. (SAOB 259-267.) Specifically, Self asserts the evidence failed to prove he “was even in the car or otherwise present” at the Knoeffler robbery or “that he in any manneraided, assisted, encouraged, or facilitated the robbery.” (SAOB 265-266.) With regard to Counts V through VII, Self contends there was no evidence corroborating Munoz’s testimonyor otherwise establishing Self’s presence or participation in the Mills-Ewy shooting. (SAOB 268-277.) Self’s claims lack merit, and he minimizes orignores the persuasive and substantial evidence supporting his convictions in Counts V, VI, VII, and XV. With regard to his robbery conviction in Count XV (Knoeffler), substantial evidence establishes that Self, along with his usual cohorts and using their usual tactics, understood and consentedto the plan to rob Knoeffler, encouraged and facilitated the robbery by acting as a lookout in Alvarez’s Colt, and further assisted in the robbery by participating in the getaway and disposal of Knoeffler’s property. Self aided and abetted the Knoeffler robbery, and accordingly, his conviction in Count XV must be upheld. With regard to his convictions in Counts V through VII (Mills-Ewy), substantial evidence,in the form ofphysical damageto Mills and Ewy’s vehicle and other circumstantial evidence, corroborated Munoz’s testimony that Self leaned out therear driver’s side window ofthe Colt and fired his shotgun over the Colt’s roof, blasting a hole through the top of Mills’ driver’s window and hitting him in the face. Accordingly, Self’s convictions in Counts V through VII must be affirmed. Well-established and straightforward legal standards govern appellate review of sufficiency of evidence issues. In considering a claim of insufficiency of evidence, a reviewing court applies a “substantial evidence” test and must determine “whether, after viewing the evidencein the light most 151 favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 319 [99 S.Ct. 2781; 61 L.Ed.2d 560], original italics; People v. Cuevas (1995) 12 Cal.4th 252, 260; People v. Johnson (1980) 26 Cal.3d 557, 578.) “The focusofthe substantial evidencetest is on the whole record of evidence presentedto the trier of fact, rather than on “ ‘isolated bits of evidence.’” [Citation.]” (People v. Cuevas, supra, 12 Cal.4th at p. 260 [originalitalics].) “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whateveris there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) The court does not perform the function of re-weighing the evidence; rather, the court must presume in support ofthe judgmentall inferences that the trier of fact could reasonable deduce from the evidence. (People v. Bloyd (1987) 43 Cal.3d 333, 346-347; People v. Redmond (1969) 71 Cal.2d 745, 755.) An appellate court will not reverse a trial court’s findings “merely becausethe circumstances mightalso be reasonably reconciled with a contrary finding.” (People v. Redmond, supra, 71 Cal.2d at p. 755.) To warrant rejection of a witness’s testimonybelieved bythetrial court, “there must exist either a physical impossibility that theyaretrue,ortheir falsity must be apparent without resorting to inferences or deductions.” (People v. Mayberry (1975) 15 Cal.3d 143, 150.) The same standard of review applies to cases in which the prosecution primarily relied on circumstantial evidence. (People v. Stanley, supra, 10 Cal.4th at p. 792.) “Althoughit is the duty of the jury to acquit a defendantif it finds that circumstantial evidence is susceptible to two interpretations, one of which suggests guilt and the other innocence,it is the jury, not the appellate court which must be convincedof the defendant’s guilt beyond a reasonable 152 doubt. If the circumstances reasonably justify the trier of fact’s findings, the opinion ofthe reviewing court thatthe circumstances mightalso be reasonably reconciled with a contrary finding does not warranta reversal ofthe judgment.” (People v. Rodriguez, supra, 20 Cal.4th at p. 11, internal citations and quotations omitted; People v. Bean, supra 46 Cal.3d at p. 919, internal citations and quotations omitted.) In reviewing a case involving the testimony of an accomplice, the reviewing court must also ask whether there was sufficient corroborating “evidenceto support the conviction. Penal Code section 1111 provides: “A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendantwith the commission of the offense; and the corroboration is not sufficient if it merely shows the commission ofthe offense or the circumstances thereof.” “Corroborating evidence must tend to implicate the defendant and therefore must relate to some act or fact which is an elementof the crime butit is not necessary that the corroborative evidence be sufficient in itself to establish every elementofthe offense charged.” (People v. Zapien (1993)4 Cal.4th 929, 982 [internal citations and quotations omitted]; see also People v. Avila, supra, 38 Cal.4th at p. 563.) Evidence sufficient to corroborate accomplice testimony need only be slight, such that it may beentitledto little considerationifstanding alone. (People v. Avila, supra, 38 Cal.4th at p. 563; People v. Sanders (1995) 11 Cal.4th 475, 534-535.) Sufficient corroborative evidence tends to connect the defendant with the crime in a waythat may reasonablysatisfy ajury that the accompliceis telling the truth, and it may beentirely circumstantial. (People v. Hayes (1999) 21 Cal.4th 1211, 1271; People v. Williams (1997) 16 Cal.4th 153, 246.) In evaluating the sufficiency of corroborating evidence, an appellate court again applies the substantial evidencetest, viewing the evidencein a light most favorable to the verdict and upholdingthetrial court’s disposition if, on 153 the basis of the evidence presented, the jury’s determination is reasonable. (People v. Garrison (1989) 47 Cal.3d 746, 774.) A. Substantial Evidence Establishes Self Was Present At The Knoeffler Robbery, Knew OfAnd Encouraged The Plan To Rob Knoeffler, And Intentionally Assisted The Robbery By Acting As A Lookout And Facilitating The Getaway AndDisposal Of Knoeffler’s Property In Argument IV of his opening brief, Self contends the evidenceis insufficient to support his robbery conviction as an aider andabettor in Count XV.Specifically, he contends there was insufficient corroborating evidence of Munoz’stestimonyplacing him at the sceneofthe Knoeffler robbery, as well as insufficient evidence of his knowing and intentional participation in the robbery. (SAOB 265-266.) Self is mistaken. Robbery is defined by Penal Codesection 211 as “the felonious taking ofpersonalproperty in the possession of another, from his person or immediate presence, and againsthis will, accomplished by meansofforce or fear.” “TTThe crime of robbery continues until the perpetrators have reached a place of safety.” (People v. Jones (2003) 30 Cal.4th 1084, 1112; see People v. Cooper (1991) 53 Cal.3d 1158, 1164-1165.) In Count XV,the People prosecuted Romero asa direct perpetrator of the Knoeffler robbery, while Self was prosecuted under an aiding or abetting theory. (45 RT 6731-6732.) “A person aids and abets the commissionof a crime when he orshe, (1) with knowledge of the unlawful purpose of the perpetrator, (2) and with the intent or purpose of committing, facilitating or encouraging commission ofthe crime, (3) by act or advice, aids, promotes, encouragesorinstigates the commission of the crime.’ [Citations.]” (People v. Hill (1998) 17 Cal.4th 800, 851; see People v. Avila, supra, 38 Cal.4th 491, 564.) Self’s jury was instructed with this definition of aiding and abetting. 154 (CALJIC No.3.01 [Aiding and Abetting - Defined]; 6 CT 1414; 45 RT 6819- 6820.) “Presenceat the scene ofthe crime, while insufficient ofitself to make one an aider and abettor,is one factor which tends to show intent. Otherfactors which maybe consideredinclude the defendant'sfailure to take steps to prevent the commissionofthe crime, companionship, and conduct before andafter the crime. [Citation.]” (People v. Pitts (1990) 223 Cal.App.3d 606, 893; see also In re Juan G. (2003) 112 Cal.App.4th 1, 5; People v. Haynes (1998) 61 Cal.App.4th 1282, 1294; People v. Mitchell (1986) 183 Cal.App.3d 325, 330; People v. Moore (1953) 120 Cal.App.2d 303, 306.) Furthermore, where knowledge is an issue on the question of guilt, as in the case of an aider or abettor, evidenceofparticipation in a prior similar offense is relevant. (People v. Jones (1969) 274 Cal.App.2d 614, 622,citing Wigmore on Evidence (3d ed.) §§ 300-301, pp. 192-194.) Here,“virtually all ofthe probative factorsrelative to aiding and abetting are present-- presence at the scene of the crime, companionship and conduct before and afterthe offense, including flight. [Citations.]” (People v. Mitchell, supra, 183 Cal.App.3dat p. 330.) Munoztestified that he, Self, Romero, and Chavez drove around in Alvarez’s Colt on November20, 1992,intending “to _ go... Stealing again.” (39 RT 5957.) At this point in time, the group, in various combinations, had robbed, attempted to rob, and/or murdered seven people on five separate occasions, and Self participatedin all of these crimes, either using his own carorjoining his brother in the Colt. (See Respondent’s Statement of Facts, ante.) When the group saw Knoeffler near his bee boxes, they agreed upon a robbery plan, namely, for Romero to approach Knoeffler and see “what [he] had worth taking,” whilethe rest of the groupstayed in the Colt. The group was armed with the 20-gauge shotgun Self admitted to acquiring a few weeksearlier, and “maybe”the Remington Selfbought in San Diego. (39 RT 5927-5928, 5958-5960; 40 RT 6174-6177; 45 3™ SCT 13078- 155 13080.) Romero approached Knoeffler with Self’s shotgun as planned, Munoz joined him later, and the two madeoffwith Knoeffler’s cash and truck. (34 RT §341-5345; 39 RT 5960-5964.) Romero and Munoz then drovethe truck over to Self and Chavez, who werestill waiting inside the Colt. Self and Chavez followed Romero and Munozto a remote location, where Romero disposed of Knoeffler’s truck byletting it roll down a hill. Thereafter, Romero and Munoz made their getaway with Self and Chavez in the Colt, and the groupjointly spent Knoeffler’s money on snacks, beer, and cigarettes. (39 RT 5964-5966.) In sum,Selfparticipated in formulating a robbery plan with his regular cohorts, brought along at least one weaponif not both weapons belonging to him, followed throughwith the plan by remainingin the getawayvehicle during the robbery, accompaniedhis cohorts as they made offwith and disposed ofthe truck, and then jointly consumed the robbery proceeds. This conductclearly showsSelfknowingly andintentionally instigated, encouraged, andaided the robbery of Albert Knoeffler. Self argues he was simply a passengerin the Colt, and there was “no evidence” he knowingly andintentionally participated in the robbery. (SAOB 265-266.) This argumentstrains credulity, especially given Self’s criminal history with his cohorts, his admission to being “addicted” to robbing people (37 RT 5593-5599), and his active participation in several prior, similar robberies involving the same accomplices and the same criminaltactics,1.e., one and or two accomplices approachingthe vehicle while another accomplice (or accomplices) stays and follows behind in the getaway vehicle. (See Respondent’s Statement of Facts, Meredith and Steenblock robberies, ante.) Indeed, this Court has recognizedthat a passenger in a getaway vehicle may be an accompliceif, as here, the evidence showsthe passengerparticipated in the robbery orthe asportation ofthe robbery proceeds. (People v. Jones, supra, 30 Cal.4" at pp. 1112-1113; see also People v. Jones, supra, 274 Cal.App.2d atp. 156 622.) Basedon the group’s history as well as Self’s presenceat every stage of the Knoeffler robbery (planning, escape, and disposal ofthe proceeds), the jury could reasonably infer that Self was not an unwitting bystander, but an active, knowing,andintelligent participant. Self also claims that Munoz’s testimony placing him inside the Colt and at the scene of the robbery is uncorroborated. (SAOB 265.) Self is wrong. Again, corroborative evidence maybeslight and neednotbesufficientin itself to establish every element ofthe offense charged. (People v. Avila, supra, 38 Cal.4th at p. 563.) Here, Munoz’s account of the crime was largely corroborated by Knoeffler’s testimony;specifically, that Romero, armed with a shotgun, and Munoz,arriving a bit later, robbed him of his cash andfled in his truck. (34 RT 5341-5345; 39 RT 5960-5964.) Munoz’s testimony concerning the presence of accomplices in a getaway car wascorroborated by the crime’s rural and remote location (the jury could infer Romero and Munoz did not simply walk to Knoeffler’s location), as well as the use of identical tactics in the commissionofthe group’s prior crimes (namely, the Meredith and Steenblock robberies in Counts IV, XIII, & XIV), wherein the group, which always includedSelf, also used accomplices in a getaway carto facilitate the robberies. (39 RT 5957-5958, 5964-5966; see Respondent’s Statement of Facts, Meredith and Steenblock robberies, ante.) Most importantly, Knoeffler’s testimony describing Romero’s use of a shotgun matched Munoz’s testimony that Romero usedSelf’s shotgunto effectuate the robbery. (34 RT 5341-5342; 39 RT 5959, 5960.) Romero’suse of Self’s shotgun strongly suggests Selfwas present and participated in the Knoeffler robbery. Finally, in addition to the corroborating evidence for this particular crime, the jury was entitled to consider Munoz’s overall credibility and trustworthiness as a witness in assessing Self’s guilt or innocence of the charged crime. (See People v. Hillhouse (2002) 27 Cal.4th 469, 491, 497 157 [accomplice’s credibility is for the jury to determine “under all the circumstances”; accomplice’s testimony,ifbelieved byjury, wassolid evidence of defendant’s guilt in charged crimes, along with independent evidence connecting defendant with crimes]; People v. Davis (1 954) 43 Cal.2d 661, 673 [once accomplice testimony meets corroboration requirement,the accomplice’s testimonyand credibility may be considered for the purpose ofconviction].) As a whole, Munoz’s accounts of appellants’ crimes aligned with victim, law enforcement, and forensic testimony, and his admission to committing previously unsolved crimes served to further bolster his credibility. In sum,based on the foregoing, substantial evidence supports the jury’s determination that Self aided and abetted the robbery of Albert Knoeffler. Accordingly, Selfs robbery conviction in Count XV must be affirmed. B. Substantial Evidence Corroborates Munoz’s Testimony That Self Leaned Out The Left Rear Window OfThe Colt, Aimed His Shotgun Over The Roof, And Shot Mills In The Face In Argument V of his opening brief, Self contends the evidence is insufficient to support his attempted murder, attempted robbery, and mayhem convictions in Counts V through VII because there was no evidence corroborating Munoz’s testimony or otherwise establishing his presence or participation in the Mills-Ewy shooting. (SAOB 268-277.) Self’s contention is wholly without merit, as he overlooks the powerful physical and circumstantial evidence supporting his conviction, namely, the weapon used matched the description of Self’s shotgun and the damageto the Mills-Ewy vehicle corroborated Munoz’s accountofSelffiring the shotgun over the Colt’s roof. Munoztestified that he, Romero, and Self pulled alongside Mills and Ewy’s vehicle on the night of October 22, 1992, armed with Self’s .20-gauge shotgun andthe .22 caliber single-shotrifle. (39 RT 5926-5931, 5935.) In his 158 statement to police, Self admitted the shotgun belonged to him and that he obtained the shotgun around the end of October. (45 3 SCT 13078-13080.) Munoztestified he pointed the single-shot out of the front passenger window but did notfire, while Selfleaned out ofthe rear driver’s side window andfired his shotgun across the Colt’s roof, blasting out the victims’ driver’s window. (39 RT 5931-5934.) Mills testified he saw at least two people in the Colt (a driver and a passenger), and he saw the passenger aiming a weapon toward him. Hethen saw a muzzle flash, heard a pop, and felt the shotgun blast hit him across the face. Mills could not identify or describe his attackers. (33 RT 5195-5201.) Police collected .20-gauge Remington-brand shotgun wadding from the floorboard of Ewy’scar, as well as lead shotgun pellet fragments from the passenger door and passenger floor. There were pellet strike marks on the upholstery of the passengerdoor, but no strike marks on the headliner orinside roof. The driver’s side window was shattered, with a hole in the top of the window wherethe shot entered the vehicle. The shot exited through the lower part of the passenger window,near the door frame and towards the front. Although Mills pushedoutthe shattered passenger windowafter he stopped the vehicle on the golf cart path, he testified that there was a hole in the passenger window abouttwoorthree inches up from the door frame and about two-thirds forward. (33 RT 5207-5210; 5219-5224; 38 RT 5825-5826.) A later search of Alvarez’s Colt uncovered shotgunpellets in the rear seat, and a briefcase in the trunk containing several shotgun shells. (34 RT 5324-5325; 37 RT 5687- 5697.) The inside of another briefcase in the trunk contained Self’s first name “Chris” written in block-letter graffiti. (87 RT 5687-5688.) Although Self contends there was “no” corroboration of Munoz’s testimony, the evidence shows otherwise. (SAOB 276.) From the .20-gauge shotgun wadding found inside Ewy’s vehicle, the jury could infer the shotgun _ 159 blast came from the .20-gauge shotgun Selfrecently acquired. Thefact Self’s shotgun was used in the shooting strongly supports Munoz’s testimony identifying Self as the shooter. Furthermore, the damage to Ewy’s vehicle windows indicated the shotgunblast entered high (throughthe top ofthe driver’s window)and exited low (through the lower part of the passenger window), with a rear-to-front trajectory (the shotgun blast exited towardthe front ofthe passenger window). Although there werepellet strike marks on the lowerpart ofthe passenger door andfloor, there werenopellet strike markson the inside roofofEwy’s vehicle, thus supplying further evidence ofdownwardtrajectory. A high-to-low,rear- to-fronttrajectory matchesperfectly with Munoz’s description of Self firing the shotgun from the rear and over the roofof the Colt. Thetrajectory does not comport with someonefiring from the front passengerseat. Mills testified he saw the Colt’s front passenger (Munoz) aiming a weapon at him, but the evidence clearly corroborated Munoz’s testimony that shotgun blast in fact came from Selffiring his shotgun from the rear and across the top ofthe Colt. Finally, the jury was entitled to consider Munoz’s overall credibility and trustworthiness as a witness in assessing Self’s guilt or innocenceofthe crime charged. (See People v. Hillhouse, supra, 27 Cal.4th at pp. 491, 497 [accomplice’s credibility is for the jury to determine “under all the circumstances”; accomplice’s testimony,ifbelieved byjury, was solid evidence of defendant’s guilt in charged crimes, along with independent evidence connecting defendant with crimes].) Munoz told the police about the Mills- Ewy shooting before the police knew he wasinvolved and without prompting, and Munozeven stuck to his accountof Self shooting across the roof despite the officers expressing their doubts. (45 3 SCT 12992, 13010-13025.) The physical evidence ultimately corroborated Munoz’s account of the crime, and Munoz’stestimony largely matched the victim’s testimonyattrial. Asa whole, 160 Munoz’s description of all of appellants’ crimes aligned with victim, law enforcement, and forensic testimony, and the jury was entitled to trust his version of the Mills-Ewy shooting with even the slightest of corroborating evidence. In sum, Munoz’s testimony concerning the Mills-Ewy shooting was sufficiently corroborated, and substantial evidence supports Self’s convictions for attempted murder, attempted robbery, and mayhem. Accordingly, the jury’s verdicts in Counts V through VII mustbe affirmed. VI. THE SPECIAL CIRCUMSTANCES WERE LAWFULLY ENACTEDBY PROPOSITION 115 Romerocontends the special circumstances (Pen. Code, § 190.2, subds. (a)(3), (a)(17); 8 CT 1724-1726) must be reversed because they were not based on a validly enacted statute. Specifically, Romero arguesthat while Proposition 115 “purported”to expandthe death-eligible provisions ofPenal Codesection 190.2 to include aiders and abettors of felony murders acting with reckless indifference, the electorate also enacted Proposition 114 at the sametime with more votes, and since the two propositions were allegedly in conflict, the expanded felony-murder special circumstance in Proposition 115 was not validly enacted. (RAOB 547-554; SAOB 492.) This contention is without merit and haspreviously been rejected by this Court. Accordingly, Romero’s claim fails. Proposition 114 expandedthe special circumstance for murdering a peaceofficer by expandingthe definition of a peaceofficer. (See ¥oshisato v. Superior Court (1992) 2 Cal.4th 978, 982-984 ["Yoshisato"].) Proposition 115 was a wide-ranging measure making comprehensive reforms to the criminal justice system. Oneof the changes was the expansion of the death-eligible 161 provisions ofPenal Code section 190.2 to include aiders and abettors of felony murder who “with reckless indifference to human life and as a major participant” aid andabet in the commission of an enumerated felony (such as robbery) that results in death. (See id. at pp. 984-987; Raven v. Deukmejian (1990) 52 Cal.3d 336, 342-346.) Romero argues that because Proposition 114 garnered more "yes" votes than Proposition 115, and because Proposition 114 did not include an expansion of special circumstances to include aiders and abettors of felony murderacting with reckless indifference, the propositions were in conflict, thus the special circumstancesat issue were notproperly enacted.’ (RAOB 547.) In a related note, Romero also contends there was no "societal consensus" supporting the enactmentofthe expanded special circumstances in Proposition 115. (AOB 553-554.) However, as Romero recognizes,his argumenthas been rejected by this Court in Yoshisato. (RAOB 548.) Romero’s contention that Yoshisato is not controlling becauseit allegedly "did not discuss any of the constitutional implications arising from the nature of the statute at issue," should be rejected. (RAOB 548.) Similarly, Romero's reliance on the dissent in Yoshisato (RAOB 551-552, 554)is not authority to support his arguments. As this Court recently noted, Yoshisato “settled this issue. . . .” (People v. Hoyos (2007) 41 Cal.4th 872, 890.) Asthis Court explained in Yoshisato, Propositions 114 and 115 were not conflicting measures, as Romero argues. "[T]he propositionsat issue here were not expressly or even impliedly presented to voters as competing oralternative measures." (Yoshisato, supra, 2 Cal.4th at p. 989.) Proposition 114 was a narrow measure that expandedthe definition ofpeaceofficers for the purpose 54. It would appear that based on Romero’s logic muchofthe rest of Proposition 115 is invalid as well, but the instant argumentis limited to the special circumstancesat issue here. 162 of the murdering a peaceofficer special circumstance. Proposition 115 was more broad and enacted,in part, an expansionofthe death-eligibility provisions of Penal Code section 190.2, including elimination of the intent-to-kill requirement for aiders and abettors of felony murder, which the jury was instructed on in the instant case. (7 CT 1449-1450, 1629-1630.). As this Court noted in Yoshisato, Propositions 114 and 115 were complimentary or supplementary measures. (Yoshisato, supra, 2 Cal.4th at p. 989; see also Taxpayers to Limit Campaign Spending v. Fair Pol. Practices Com. (1990) 51 Cal.3d 744, 765.) "It is clear the voters intended merely to amendsection 190.2 in the various discrete ways set out[in the propositions ]." (Yoshisato, supra, 2 Cal.4th at p. 990.) The fact that Proposition 114 did not similarly expand Penal Codesection 190.2 to include aiders and abettors acting with reckless indifference does not place the two propositions in conflict as Romeroclaims. Romero also argues that to comply with constitutional requirements a capital sentencing scheme must narrow theclass of personseligible for the death penalty, thus Penal Code section 190.2 must be construed to circumscribe the class of persons so eligible. (RAOB 552-553.) Despite Romero's contention otherwise, the fact that this Court in Yoshisato found Proposition 115 properly enacted, thus properly expanding the death eligibility provisions of section 190.2, does not mean the capital schemeset forth in section 190.2 is hence no longer constitutionally narrow. (See People v. Arias, supra, 13 Cal.4th at p. 187.) Finally, Romero argues there was no "societal consensus"to support the enactment or expansionof the special circumstances set forth in Proposition 115. (RAOB 553-554.) Romerois incorrect. A majority of voters enacted Proposition 115, which set forth the expansion of special circumstances to includeaiders and abettors of felony murderacting with reckless indifference. This majority vote evinces a societal consensus. The fact that the voters also 163 approved Proposition 114, which expandedthe definition of "peace officer" for the murder of a peace officer special circumstance, does not undercut the consensusforthe special circumstancesset forth in Proposition 115. As noted above, it is obvious that the voters intended to amend section 190.2 in the manners set out in the two propositions. (See Yoshisato, supra, at pp. 989-990.) In sum,the reasoning set forth in Yoshisato is both solid and applicable. The expansion of the special circumstances to include aiders and abettors of felony murder acting with reckless indifference was properly enacted by Proposition 115. Romero’s constitutional rights were not violated and the special circumstance findings should be upheld. Vil. THE INSTRUCTIONS CONSIDEREDIN PART AND IN WHOLE DID NOT LESSEN THE PROSECUTOR’S BURDEN OF PROVING APPELLANTS GUILTY BEYOND A REASONABLE DOUBT Appellants claim their convictions should be reversed because CALJIC No.2.90 [Presumption of Innocence - Reasonable Doubt - Burden ofProof] (1994 Revision), as given in this case, was constitutionally defective for the following reasons: (1) it inadequately definedthe level ofcertainty required for conviction; (2) the 1994 revision gave a lower burden of proof than the instructions that were in effect at the time appellants committed their crimes, andthus,its application violated the proscription against ex post facto laws and the correlative right to due process; (3) it erroneously implied that the jurors were required to articulate a reason for their doubt; (4) it unconstitutionally admonishedthejury that a possible doubtis not a reasonable doubt;(5)it failed to instruct that the defense had no obligation to present or refute evidence, and other instructions erroneously suggested such an obligation existed; (6) it failed to inform the jury that the presumption of innocence continues throughoutthe 164 entiretrial, including deliberations; and (7) it failed to advise the jurors that a conflict in evidence or lack of evidence could leave them with a reasonable doubtas to guilt. (SAOB 305-326, 492; RAOB 543-546,596.) As appellants recognize, this Court and others have repeatedly rejected their claims, but appellants urge this Court to reconsider them. (RAOB 543, 596; SAOB 321- 324, 492.) Becauseappellants fail to present persuasive argumentsto revisit these decisions, this Court should decline to do so. At appellants’ request, their juries were read the following version of CALJIC No. 2.90: A defendantin a criminal action is presumedto be innocent until the contrary is proved, and in case of a reasonable doubt whetherhis guilt is satisfactorily shown,heis entitled to a verdict ofnot guilty. This presumption places upon the People [the Deputy District Attorney Mr. West] 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 is open to some possible or imaginary doubt. It is that state of the case which,after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction ofthe truth of the charge. (6 CT 1409; 7 CT 1590; 9 CT 1991, 2059; 45 RT 6817; 46 RT 7058.) At the penalty phase,a similar instruction was given as part of CALJIC No. 8.87. This was also given at appellants’ request. (9 CT 1991, 2059; 54 RT 8065, 8151- 8152.) First, because appellants requestedinstruction with the modified version of CALJIC No.2.90, their claims on appealare barred under the invited error doctrine. (People v. Hinton (2006) 37 Cal.4th 839, 868,fn. 10; People v. Davis (2005) 36 Cal.4th 510, 567; 6 CT 1409; 7 CT 1590; 44 RT 6632.) Second, CALJIC No. 2.90 adequately instructed the jury on reasonable doubt. Appellants claim the instruction failed to tell jurors “how convinced” they must be to return a conviction. (RAOB 543, 545,italics in original; SAOB 165 492.) They also contendthat the instruction unconstitutional ly admonished the jury that a possible doubtis not a reasonable doubt. (SAOB 309-311; RAOB 596.) Every court which has considered these claims haver ejected them and instead upheld the instruction as an adequate definition of reasonable doubt. (See, e.g., People v. Hearon (1999) 72 Cal.App.4th 1285, 1286-1287 [listing numerouscasesrejecting claims against constitutionality of CALJIC No. 2.90].) In Victor v. Nebraska (1994) 511 U.S, 1, [114 S.Ct. 1239, 1 27 L.Ed.2d 583] the defendant objected to the language in CALJIC No . 2.90stating that reasonable doubtis "not a mere possible doubt." The Supre me Court held this language was adequate. (Jd. at pp.13, 17.) The High Cour t expressly stated, “An instruction cast in terms of an abidingconviction as to guilt, without reference to moralcertainty, correctly states the government's burdenofproof. (Citation.]” (/d. at pp. 14-15.) This Court has also rejected ap pellants’ claims. In People v. Freeman (1994) 8 Cal.4th 450, this Cou rt revisited the then-existing version of CALJIC No. 2.90, following the feder al High Court's decision in Victor v. Nebraska. Based on Victor, this Court r ecommendedthat trial courts use the same definition of reasonable doubt whicht he trial court usedin the instant case, including the language to which appella nt now objects. (People v. Freeman, supra, 8 Cal.4th at p. 504.) Indeed,this Court specified that, other than deleting the "moral evidence" and "moral certa inty" language from the former CALJIC No. 2.90,no other changes should be made. (Jd.at p. 505.) Hence, CALJIC No. 2.90 properly sets forth the definition of reasonable doubt and the juries in this case were adequat ely instructed. Appellants’ claims contradict rulings by the United States Supr eme Court and this Court, and therefore, their claims must be rejected. Third, contrary to appellants’ assertion, the 1994 revision to CAL JIC No.2.90, as given in this case, did not give a lower burden of pr oof than the instruction that wasin effectat the time appellants committedtheir crimes, and 166 the use ofthe revisedinstruction did notviolate their due process rights or the proscription against ex post facto laws. (RAOB 546; SAOB 492.) Indeed, this Court specifically rejected appellants’ argumentin People v. Brown (2004) 33 Cal.4th 382, 391-392, which held that CALJIC instructionsdo not constitute legislative or decisional law and thus cannot implicate ex post facto concerns or due process. The Brown Court also approved the revised version ofCALJIC No. 2.90 of which appellants now complain. Appellants’ due processrights were notviolated. Fourth, CALJIC No.2.90 did not require jurors to articulate a reason for their doubt. Appellants argue that, although “the jurors were not expressly instructed that they must articulate reason and logic for their doubt,” the instructional language of CALJIC No. 2.90 so implies. (SAOB 306-309; RAOB596.) Respondentagreesthat a jury is not requiredto articulate doubt. (See People v. Hill, supra, 17 Cal.4th at p. 800.) However, CALJIC No.2.90 cannot reasonablybeinterpreted to require anyarticulation of doubt, expressly or impliedly. Indeed, there is simply no basis for appellants’ strained interpretation ofthe instruction. CALJIC No.2.90,as discussed throughoutthis argument, properly instructed the jury on reasonable doubt. Fifth, CALJIC No. 2.90, alone and combined with other instructions, adequately explained that the burden of proof rested with the prosecution. Appellants contend CALJIC No.2.90 was deficient and misleading becauseit did notaffirmatively state that the defense had noobligation to presentor refute evidence. (SAOB 311-318; RAOB 596.) They further contend,in light of other instructions given (CALJIC Nos.1.00, 2.01, 2.11, 2.21.2, 2.22, 2.27, 2.60 & 2.61), “it is reasonably likely that jurors concluded that appellant had the burden of producing sufficient evidence to raise a reasonable doubtof his guilt.” (SAOB 313; RAOB 596.) Appellants’ arguments are without merit. 167 CALJIC No. 2.90 clearly advised the jury that the prosecution, not the defense, had "the burden of proving [appellant] guilty beyond a reasonable doubt"andthat the defense hadno obligation to present evidence. (6 CT 1409; 7 CT 1590; 45 RT 6817; 46 RT 7058.) It cloaked appellantin the presumption of innocence and squarely placed on the prosecution the burden of proving otherwise. (See People v. Wright (1988) 45 Cal.3d 1126, 1134 [instruction that defendant need not provehis innocenceor another's guilt properly refused in light of CALJIC No.2.90], citing People v. Martinez (1987) 191 Cal.App.3d 1372, 1378-1379 [CALJIC No. 2.90 cautioned jurors that People must prove defendant's guilt rather than defendant's having to prove his innocenceorguilt of another].) The prosecution’s burden wasreiterated in CALJIC No.2.91, whichclearly told jurors “[tJhe burden is on the People.” (6 CT 1410; 7 CT 1591; 45 RT 6817; 46 RT 7058-7059.) No reasonable juror would have believed that appellants were required to present evidence to establish a reasonable doubt. Similarly, appellants’ claim thata list ofjury instructions (CALJIC Nos. 1.00, 2.01, 2.11, 2.21.2, 2.22, 2.27, 2.60 & 2.61) further undermined the prosecutor’s burdenofproofalso must be rejected. (RAOB 596; SAOB 305- 326.) With regard to CALJIC No.1.00, this Court has addressed and rejected appellants’ attack on that instruction. (SAOB 314; RAOB 596.) Specifically, this Court held, / CALJIC No. 1.00, which directs the jury notto “infer or assume”that defendant “was morelikely to be guilty than not guilty” merely because he had beenarrested, charged, or broughttotrial, does not undercut the burden of proof. [Citation.] (People v. Jurado (2006) 38 Cal.4th 72, 127; see also People v. Guerra, supra, 37 Cal.4th at p. 1067.) This Court in Jurado and Guerra also rejected appellants’ arguments (SAOB 315-317; RAOB 596) attacking instructions addressing sufficiency ofcircumstantial evidence generally (CALJIC No.2.01), 168 willfully false witnesses (CALJIC No. 2.21.2), and weighing conflicting testimony (CALJIC No.2.22). (People v. Jurado, supra, 38 Cal.4th at pp. 126- 127; People v. Guerra, supra, 37 Cal.4th at p. 1138- 1139; see also People v. Robinson (2005) 37 Cal.4th 592, 637; People v. Millwee (1998) 18 Cal.4th 96, 158-159. , As for CALJIC No. 2.11 [Production ofall Available Evidence Not Required] this Court has rejected appellants’ argumentthat “the instruction suggested that the production of some evidence by both sides was required.” (SAOB 315; RAOB 596.) In People v. Daniels (1991) 52 Cal.3d 815, this Court approved of CALJIC No. 2.11 and labeled appellants’ interpretation of the instruction as “quite strained.” (People v. Daniels, supra, 52 Cal.3d at p. 815, citing People v. Orozco (1981) 114 Cal.App.3d 435, 448.) Regarding CALJIC No. 2.27 [Sufficiency of Testimony of Single Witness] (1991 Revision), appellants argue the instruction “impermissibly suggested by implication that somefacts were required to be provenbythe defense.” (SAOB 317; RAOB 596.) This argument also has been rejected. (See People v. Gammage(1992) 2 Cal.4th 693, 702,fn. 5 [upholding CALJIC No. 2.27 and noting the 1991 revised version of CALJIC No. 2.27 complied with Supreme Court recommendations on improving theinstruction]; People v. Turner (1990) 50 Cal.3d 668, 696-698 [concluding the jury was not misled becauseit received full instructions on the burden of proof, and stating “We cannot imaginethat the generalized reference to ‘proof of'facts' in CALJIC No. 2.27 would be construedby a reasonable jury to undermine these much-stressed principles.”’]; People v. Wade (1995) 39 Cal.App.4th 1487, 1496-1497.) With regard to CALJIC Nos. 2.60 and 2.61, these instructions told the jury to draw noinference from or discuss appellants’ failure to testify on their ownbehalf, and CALJIC No.2.61 reiterated to jurors that the People bore the burden ofproof. The purposeoftheseinstructions are to protect the defendant, 169 andtrial courts are in fact required to give these instructions ifrequested by the defendant. (See Carter v. Kentucky (1981) 450 U.S. 288, 300, 305 [101 S.Ct. 1112, 67 L.Ed.2d 241]; People v. Roberts (1992) 2 Cal.4th 271, 314-1 5.) Here, appellants requested instruction with CALJIC Nos. 2.60 and 2.61, and thetrial court so instructed. (6 CT 1400-1401; 7 CT 1580-1581; 44 RT 6623; 45 RT 6813-6814; 46 RT 7054.) Absent appellants’ strained interpretation, these instructions in no way diluted the burden of proof. In fact, these instructions, as exemplified by appellants’ request for them attrial, protected appellants and served to “minimize the dangerthat the jury will give evidentiary weight to a defendant's failureto testify.” (Carter v. Kentucky, supra, 450 U.S.at p. 305.) In sum, CALJIC No. 2.90, in whole and in combination with the other instructions, properly instructed the jury that the burden ofproofrested with the prosecution. Sixth, CALJIC No. 2.90 informed the jury that the presumption of innocence continues through to a verdict. Appellants posit that CALJIC No. 2.90 wasdeficient because "it did not assure that the jury would not shift the burden to the defense at some point prior to completing its deliberations." (SAOB 320.) Specifically, appellants argue the portion of CALJIC No. 2.90 whichinstructed the jury that a defendant "is presumedto be innocentuntil the contrary is proved," undermined the prosecution's burden of proof. They contend the word "until" should be replaced by the word "unless"in orderto indicate that sufficient proofmight never be presented. (SAOB 318-320.) This Court has rejected this contention. (People v. Lewis (2001) 25 Cal.4th 610, 651-652.) In Lewis, this Court concluded as follows: [T]here is no reasonable likelihood that the jury in defendant's case would understandtheinstruction to meanthat to convict defendant, the state could sustain its burden without proving his guilt beyond a reasonable doubt. Here, the instruction first informed the jury that."a defendant in a criminal action is presumed to be innocent until the contrary is proved"andthatifthere is a reasonable doubtasto his guilt, 170 he must be acquitted. The next sentence stated that the just- described presumption of innocence "places upon the People the burden of proving him guilty beyond a reasonable doubt." The jury was then provided a definition of reasonable doubt. Contrary to defendant's argument, there is no reasonablelikelihood that the jury understoodthe disputed language to meanit should view defendant's guilt as a foregone conclusion. (Id. at p. 652.) Furthermore, as acknowledged by the Court of Appeal in Peoplev. Goldberg (1984) 161 Cal.App.3d 170: Once an otherwise properly instructed jury is told that the presumption ofinnocence obtainsuntil guilt is proven,it is obviousthat the jury cannotfind the defendant guilty until and unless they, as the fact-finding body, conclude guilt was proven beyond a reasonable doubt. (People v. Goldberg, supra, 161 Cal.App.3d at pp. 189-190.) Since such a conclusion could not be reached prior to deliberation and unanimous agreement, the Goldberg court held CALJIC No.2.90 effectively preserved the presumption up and until an unanimous agreementis reached. (Jd. at p. 190.) In sum, nothing in CALJIC No. 2.90 could be construed to permit burden- shifting before the conclusion of deliberations, and appellant offer no persuasive reason for this Court to depart from its decision in Lewis. Seventh, appellants appear to contend that CALJIC No. 2.90 was incomplete and misleading becauseit failed to instructthe jury that “when the evidenceis in equipoise, ‘the party with the burden of proof loses.’" (SAOB 321; RAOB 596.) Such a modification to CALJIC No. 2.90 would have been inappropriate, as it may have confusedthe instruction andpotentially implied that appellants “would prevail only if the evidence were closely balanced ("tied"), but wouldlose, despite a reasonable doubt, if the prosecution's case slightly out-weighed the defense.” (People v. Anderson (1990) 52 Cal.3d 453, 472 [defendant claimed the prosecutor lowered the burden of proof when he 171 told the jury that, if the evidenceistied, the benefit goes to the defendant].) In fact, had the trial court modified CALJIC No. 2.90 in the manner now suggested by appellants,it is likely appellants would now complain oferror. (See People v. Anderson, supra, 52 Cal.3d at p. 472 [prosecutor's commentthat, if the evidence is tied, the benefit goes to the defendant did not lessen the burden ofproofin light ofproper instruction pursuantto CALJIC No. 2.90 and defense counsel'sexplanation ofburden ofproof].) CALJIC 2.90 set forth the correct burden of proof, and no modification was necessary. Accordingly, based upon the foregoing, appellants arguments must be rejected. Underthetotality of the instructions given in this case, there was no reasonablelikelihood the jury misconstrued or misapplied the words ofCALJIC No. 2.90. (People v. Snow (2003)30 Cal.4th 43, 97-98; People v. Frye, supra, 18 Cal.4th at p. 957.) After listing the numerous courts which have rejected similar claims to CALJIC No.2.90, the Court of Appeal determinedthat the issue is "conclusively settled adversely to defendant's position" and urged appellate attorneys "to takethis frivolous contention offtheir menus.” (People v. Hearon, supra, 72 Cal.App.4th at pp. 1286-1287.) Indeed, a full and fair reading of the instructions clearly establishes that the jury could not have believed appellants had the burden of establishing their innocence or that the prosecution's burden ofproofwas somethingless than showing appellants’ guilt beyond a reasonable doubt. Vill. CALJIC NO. 3.02 PROPERLY INSTRUCTED THE JURY ON AIDER AND ABETTORLIABILITY UNDER THE NATURAL AND PROBABLE CONSEQUENCES DOCTRINE At the conclusion ofthe guilt phase, the trial court instructed the jury with a modified version of CALJIC No. 3.02, whichset forth the natural and 172 probable consequencesdoctrine of aider and abettor liability, as well as the required elementsfor each crime charged. (6 CT 1414-1417; 7 CT 1596-1598; 45 RT 6819-6822; 46 RT 7061-7064.) Using CALJIC No.3.01, the trial court further defined aiding and abetting and, pursuant to CALJIC Nos. 8.80.1 and 8.81.17, informed thejury that, in order to return a true finding on any special circumstanceallegation, the jury had to find that appellants had the specific intent to kill or to aid anotherin the killing of a human being. (7 CT 1449- 1450, 1452, 1595, 1629-1630; 45 RT 6819, 6834-6835; 46 RT 7060-7061, 7074-7077.) Although Self did not believe CALJIC No. 3.02 was “appropriate” in his case, Romero specifically requested instruction with CALJIC No. 3.02. (4 RT 6633-6636; 6 CT 1415-1417; 7 CT 1596-1598.) Appellants also requested instruction with CALJIC Nos. 3.01, and voiced no objections to CALJIC Nos. 8.80.1 and 8.81.17. (4 CT 6633, 6659-6665; 6 CT 1414; 7 CT 1449-1450, 1452, 1595, 1629-1630.) On appeal, however, Romero contendsthe instruction he requested on natural and probable consequences (CALJIC 3.02) wasprejudicially defective by permitting the jury to convict him ofmurder withoutsufficient evidence of the required mental state. (RAOB 537-542.) Specifically, Romeroasserts that CALJIC No.3.02 created a unconstitutional mandatory presumption ofintent to commit murder, if the jury found murderto be a natural and probable consequenceofrobbery, in violation of his due process rights. (RAOB 537- 542.) Self joins in Romero’s argument. (SAOB 492.) There is no merit in appellants’ claim oferror, and the juries were properly instructed. As recognized by Romero,this Court specifically rejected his contention in People v. Coffman & Marlow, supra, 34 Cal.4th 1 at pp. 106-108, and found that “CALJIC No.3.02 correctly instructs the jury on the natural and probable consequencesdoctrine.” (People v. Coffman & Marlow, supra, 34 Cal.4th 1 at p. 107.) As the jury wasinstructedin theinstant case, “[a]n aider and abettor 173 ‘is guilty not only ofthe offense he intendedto facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets.’ [Citations.]” (/d. at pp. 106-107.) The Court in Coffman & Marlow - found that CALJIC No.3.02 correctly instructed the jury on the natural and probable consequencesdoctrine anddid not unconstitutionally substitute proof of the required mentalstate. (Id. at p. 107.) In so holding, the Court further reasoned: “Notably, the jury here was also instructed with CALJIC No. 3.01, advising that an aider and abettor must act with the intent of committing, encouraging orfacilitating the commission of the target crime, as well as CALJIC No. 8.81.17, which required, for a true finding on the special circumstanceallegations, that defendants had the specific intentto kill the victim. These concepts fully informed the jury of applicable principles of vicarious liability in this context.” (/d. at p. 107.) Appellants attempt to distinguish Coffman & Marlow byarguingthat their juries were not instructed with the version ofCALJIC No. 8.81.17 given to the Coffman & Marlow juries, and thus their juries were not told that, in order to return a true finding onthe special circumstance allegations, they had to find that appellants specifically intendedto kill the victims. (RAOB 540- 541; SAOB 492.) Theyassert: “Onlyoneofthe twoinstructions that saved the Coffman and Marlow verdict was given here, and the case is therefore not controlling.” (RAOB 541; SAOB 492.) Appellantsfail in their attemptto distinguish Coffman & Marlow.First, contrary to appellants’ gross misinterpretation, CALJIC No.8.81.17 was not the lynchpin ofthis Court’s decision in Coffman & Marlow,i.e., it did not “save” the Coffman & Marlow verdict as appellants’ suggest. Rather, the Court plainly held that CALJIC No.3.02, with or withoutreference to other instructions, did notcreate an unconstitutional presumptive mental state and correctly instructed on vicariousliability. The Court then further reasoned that “also” instructing 174 the jury with CALJIC Nos. 3.01 and 8.81.17 fully informed jurors of the applicable principles of vicarious liability. (Coffman & Marlow, supra, 34 Cal.4th at p. 107.) Second,appellants’ juries were in fact instructed similarly to the Coffman & Marlow juries. In the instant case, CALJIC No.8.80.1 was given to both juries, which instructed that, in order to return a true finding on the special circumstanceallegations, they hadto find that appellants specifically intendedto kill the victims. (7 CT 1449-1450, 1629-1630; 45 RT 6834-6835; 46 RT 7074-7077.) Lastly, by returning true findings on the special circumstance allegations against both appellants, the juries in this case necessarily found they possessed the intent to kill. (8 CT1715-1717, 1724- 1726, 1733-1747, 1786-1801.) Insum, CALJIC No.3.02, as given bythetrial court, properly instructed the juries on aider and abettor liability under the natural and probable consequencesdoctrine, and this Court should deny appellants’ claim oferror. TX. APPELLANTS WAIVED THEIR CLAIM OF ERROR REGARDING THE ACCOMPLICE INSTRUCTIONS;IN ANY EVENT, THE TRIAL COURT PROPERLY INSTRUCTED THE JURIES ON ACCOMPLICE CORROBORATION AND APPELLANTS WERE NOT PREJUDICED Appellants contendthetrial court failed to adequately instruct the jury on accomplice corroboration in violation oftheir nights to a fair trial, unanimous verdict, due process of law, and a reliable determination of guilt and penalty under the Fifth, Sixth, Eighth and Fourteenth Amendments to the Federal Constitution and analogousprovisions of the California Constitution. (SAOB 278-304; RAOB 596.) Specifically, appellants contend the court’s use of CALJIC Nos. 3.10, 3.11, 3.12, 3.16, 3.18, and 17.02, which set forth the 175 requirements for accomplice corroboration andto decide each count separately, “failed to inform the jury that evidence corroborating Jose Munoz’ accomplice testimony wasrequiredfor each specific count and each incident-related count,” and potentially led the jury to believe “that accomplice corroboration as to a single count satisfied the accomplice corroboration requirement as toall counts.” (SAOB 283.) Byfailing to raise these concernsattrial or otherwise request amplification ofthe standard instructions, appellants have waived their claim of error. In any event, the instructions given bythetrial court adequately informedthejury that each and every charge based upon accomplice testimony required corroboration, and indeed, all of the charges in this case were so corroborated. Appellants’ claim fails. A conviction cannot stand on the uncorroborated testimony of an accomplice. (Pen. Code, § 1111.) When an accompliceis called to testify on behalf of the prosecution, a trial court must instruct the jury on the corroboration requirementandto view the accomplice’s testimony with caution. (Pen. Code, § 1111; People v. Boyer (2006) 38 Cal.4th 412, 466-467.) In this instant case, Jose Munoz, an accomplice to appellants’ crimes, testified on behalf of the prosecution. Accordingly, at appellants’ request and/or concurrence,thetrial court instructed the juries on accomplice credibility and the corroboration requirement found in CALJIC Nos. 3.10, 3.11, 3.12, 3.16, and 3.18. (6 CT 1419-1420; 7 CT 1422-1424, 1600-1601, 1603-1605; 44 RT 6636-6642.) These instructions told the jury, in relevantpart: A defendant cannot be found guilty based uponthe testimony of an accomplice unless such testimony is corroborated by other evidence which tends to connect such defendant with the commission of the offense. ... To corroborate the testimony of an accomplice, there must be evidence of someact or fact related to the crime which,if believed, by itself and withoutaid,interpretation, or direction from the testimony of 176 the accomplice, tends to connect the defendant with the commission of the crime charged. However,it is not necessary that the evidence of corroboration be sufficientin itself to establish every elementofthe crime chargedorthat it corroborate every fact to which the accomplicetestifies. In determining whether an accomplice has been corroborated, you mustfirst assume the testimony of the accomplice has been removed from the case. You must then determine whetherthere is any remaining evidence which tends to connect the defendant with the commission of the crime. If there is not such independent evidence which tends to connect defendant with the commission of the crime, the testimony of the accompliceis not corroborated. If there is such independent evidence which you believe, then the testimony ofthe accompliceis corroborated. Ifthe crimes chargedin the Information except counts XI-XIV, XVI, XVII, XX-XXIII were committed by anyone, the witness Jose Munoz was an accompliceas a matter oflaw and his testimonyis subject to the rule requiring corroboration. Thetestimonyofan accomplice outto be viewed with distrust. This does not mean that you mayarbitrarily disregard such testimony, but you should give to it the weight to which you find it to be entitled after examining it with care and caution andin lightofall the evidence in the case. (6 CT 1419-1420; 7 CT 1422-1424, 1600-1601, 1603-1605; 45 RT 6823-6824; 46 RT 7064-7065.) The court also instructed the juries, at appellants’ request, with CALJIC No. 17.02, which told the juries: Each count chargesa distinct crime. You must decide each count separately. The defendant maybe foundguilty or not guilty of anyorall of the crimes charged. Yourfinding as to each count mustbestated in a separate verdict. (7 CT 1473, 1652; 44 RT 6675; 45 RT 6859; 46 RT 7087.) 177 Despite the fact appellants either specifically requested or expressly approved of these instructions, they now complain the instructions were deficient and required amplification. Appellants argue their requested instructions “failed to inform the jury that evidence corroborating Jose Munoz’ accomplice testimony was required for each specific count and each incident- related count.” (SAOB 283; RAOB 596.) However, by expressly assenting to the giving of these instructions andfailing to request clarification at trial, appellants have invited, or at the very least waived,their claimsoferror. “The doctrine of invited error bars a defendant from challenging an instruction given bythe trial court when the defendant has made a conscious and deliberate tactical choice to request the instruction.” (People v. Thornton, supra, 41 Cal.4th at p. 391, internal citations and quotations omitted.) Likewise, a defendant who does not request amplification or explanation of standardinstructionsattrial is precluded from complaining on appeal. (People v. Lewis, supra, 26 Cal.4th at p. 334.) “Generally, “a party may not complain on appealthat an instruction correct in law and responsiveto the evidence was too general or incomplete unlessthe party has requested appropriate clarifying or amplifying language.” [Citation.]’” (People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012.) Because appellants did notraise their complaints in the trial court, they may not now be heard on appeal. In any event, the trial court properly instructed the juries regarding accomplice corroboration and their duty to decide each count separately. In reviewing purportedly erroneousinstructions, this Court will “inquire “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way”that violates the Constitution.”” 18 Cal.4th at p. 894, quoting Estelle v. McGuire (1991) 502 U.S. 62, 72 [112 S.Ct. 475, 482, 116 L.Ed.2d 385].) In assessing whetherthe jury instructions (People v. Frye, supra, given were erroneous,the reviewing court “must consider the instructions as a 178 whole . . . [and] assumethatthe jurors are intelligent persons and capable of understandingandcorrelatingall jury instructions which are given.” (People v. Guerra, supra, 37 Cal.4th at p. 1067, internal citations and quotations omitted; see Cal. Const., art. VI, § 13; see also People v. Frye, supra, 18 Cal.4th at p. 957, quoting Boydev. California, supra, 494 U.S.at p. 370 [a single instruction to a jury maynotbejudgedinartificial isolation, but must be viewed in the context of the overall charge.’”].) Casting aside appellants’ “technical hairsplitting,” a common sense evaluation of the instructions as a whole establishesthat the instructions given required nofurtherclarification. (People v. Huggins (2006) 38 Cal.4th 175, quoting Boyde v. California, supra, 494 U.S. at p. 381 (“[A] commonsense understanding ofthe instruction in lightofall that has taken placeat thetrial is likely to prevail over technical hairsplitting.”].) Read as a whole, the instructions adequately informed the juries that each count supported by Munoz’stestimony required corroborating evidence. The trial court identified the specific counts as to which the accomplice corroboration requirement applied, designated Munoz as an accomplice as a matter of law to those counts, and cautioned the juries to view Munoz’s testimony with distrust. The instructions pointedly told the juries that to corroborate Munoz’stestimony, “there must be evidence of some actor fact related to the crime which,ifbelieved,by itselfand withoutaid, interpretation, or direction from the testimony of the accomplice, tends to connect the defendant with the commission ofthe crime charged.” (6 CT 1419-1420; 7 CT 1422-1424, 1600-1601, 1603-1605; 45 RT 6823-6824; 46 RT 7064-7065 [emphasis added].) In other words, the juries were told the corroborating evidence needed to be directly related to the charged crime they were considering, and the corroboration could not come from an unrelated charge. But most importantly, the instructions told the juries how to determine corroborationasto each charge, i.e., by removing Munoz’stestimony from the 179 case entirely and then determining “whether there is any remaining evidence” connecting the defendant with the crime charged. The juries werespecifically told, “If there is not such independent evidence which tends to connect defendant with the commission ofthe crime, the testimony of the accomplice is not corroborated.” Bytelling the juries to remove Munoz’s testimonyentirely and to look for only “independent evidence,” the instruction effectively prohibited the juries from using Munoz’s corroborated testimony as to one countto satisfy the corroboration requirementas to other counts. (6 CT 1419- 1420; 7 CT 1422-1424, 1600-1601, 1603-1605; 45 RT 6823-6824; 46 RT 7064-7065.) Further emphasizingthis point, the trial court also instructed the juries that “[e]ach countchargesa distinct crime” and they “must decide each count separately.” (CALJIC No.17.02; 7 CT 1473, 1652; 44 RT 6675; 45 RT 6859; 46 RT 7087.) Despite the clear language of these legally-correct instructions~, appellants arguethetrial court violated their constitutional rights by failing to further inform jurors “they could not use evidence pertaining to a particular crime or each group ofincident-related counts to corroborate Jose Munoz’ accomplice testimonyorto prove appellant’s guilt on other counts orin respect to other charged crimes.” (SAOB 283; RAOB 596.) To this end, appellants suggest the trial court should have altered CALJIC No. 17.02 “to inform the jury that it should decide each count separately on the law and the evidence applicableto it, including accomplice corroboration.” (SAOB 292.) However, as previously demonstrated,the trial court’s charge to the juries effectively gave the jurors this very instruction. Because appellants’ proposed instruction is duplicative ofthe instructions given attrial, the trial court did not err. (People 55. Appellants do not appear to dispute that these instructions were a correct statement of the law on accomplice corroboration. (SAOB 278-304; People v. Sanders, supra, \1 Cal.4th at p. 475, [noting standard accomplice instructions were correct statement of the law].) 180 vy. Moon (2005) 37 Cal.4th 1 [A trial court may refuse a pinpoint instr uction if it is an incorrect statementof the law, argumentative, duplicative, poten tially confusing,orif it is unsupported by substantial evidence.].) As the juries we re properly instructed on accomplice corroboration andtheir duty to consider each count separately, the prosecution’s burden of proof was not lessened ’ and appellants’ constitutional nights were not violated. Appellants do not cit e any authority holding otherwise. In support of their argument, appellants cite a litany of cases where either: the trial court gave an instruction similar to the one appellants n ow propose (albeit not in the context of accomplice corroboration), and t he appellate court found the instruction proper’; or where an appellate cou rt discussed the need for cautionary orlimiting instructionsasto certain types of evidence (particularly other-crimes evidence).*" But as appellants recognize , this Court has held a trial court has no sua sponte duty to instruct pursuantto CALJIC No. 17.02, nor doesit have a duty to instructthe jury with a clarify ing instruction along the lines proposed by appellants. (People v. Geier (2007) 41 56. Appellants contend the court’s accomplice instructions, coupled with the reasonable doubt instruction (CALJIC No. 2.90) impermissibly lowered the burden of proof. (RAOB 299-301.) As demonstrated in Respondent’s ArgumentVII, the trial court properly instructed on reasonable doubt and the prosecution’s burden of proof, and as demonstrated herein, the trial court properly instructed on accomplice corroboration. Thus, appellants’ rights were not violated. 57. SAOB 293-298, discussing People v. Hollbrook (1959) 45 Cal.2d 228 [instruction that jury “must consider the evidence applicable to each offense as though it were the only accusation” proper]; People v. Bias, supra, 170 Cal.App.2d at p. 502 [same]. 58. SAOB 286-287, and cases cited therein; ¢.g., People v. Garceau, supra, 6 Cal.4th at p. 186; [other-crimes evidence]; People v. Alcala (1984) 36 Cal.3d 604, 631 [same]; People v. Key (1984) 153 Cal.App.3d 888, 898-899 [same]; People v. Gibson (1976) 56 Cal.App.3d 119, 129 [same]. 181 Cal.4th 555, [rejecting defendant’s argument that CALJIC No. 17.02 should have beenclarified to tell the jury it could not use evidenceof one crimeto convict him ofother crimes, and finding proposedinstruction duplicative of CALJIC No.17.02]; People v. Cook, supra, 39 Cal.4th at p. 566 [no sua sponte duty to give CALJIC No. 17.02]; People v. Catlin (2001) 26 Cal.4th 81, 153 {rejecting as duplicative ofCALJIC No.17.02 defendant’s proposedinstruction stating "Evidence applicable to each offense charged must be considered as if it were the only accusation before the jury."].) Further, with regard to appellants’ citations to cases referencing a trial court’s duty to give cautionary or limiting instructions for certain types of evidence, the trial court here in fact gave the appropriate cautionary instructions on accomplice testimony and the corroboration requirement. No more was needed. Assuming arguendo the trial court erred by not amplifying the accomplice instructions, any such error was harmless. “Even where accomplice instructions were required, [this Court has] found noprejudice where, in fact, the witness's testimony was sufficiently corroborated.”=’ (People v. Boyer, supra, 38 Cal.4th at p. 467; People v. Cook, supra, 39 Cal.4th 566, 601 [“Not giving such instructions, however, is harmless, even if erroneous, when there is ‘ample evidence corroborating the witness's testimony.’ [Citation.]”].) Such [corroborative] evidence may be slight and entitled to little consideration when standing alone. Corroborating evidence must tend 59. Appellants assert the allegedly defective accomplice instructions lowered the burden of proof and constituted a structural defect, resulting in prejudice per se and requiring automatic reversal of the judgments. (SAOB 302-303.) In the alternative, appellants ask this Court to use the harmless beyonda reasonable doubttest articulated in Chapmanv. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705].) This Court should reject appellants’ requests and apply the appropriate standard as articulated by this Court, i.e., “Not giving [accomplice] instructions . . . is harmless, even if erroneous, when there is ‘ample evidence corroborating the witness's testimony.’ [Citation.]” (People v. Cook, supra, 39 Cal.4th at p. 601.) 182 to implicate the defendant and therefore mustrelate to some actor fact which is an element of the crime but it is not necessary that [such] evidence besufficientin itself to establish every elementofthe offense charged. (People v. Boyer, supra, 38 Cal.4th at p. 467, internal citations and quotations omitted.) Sufficient corroborative evidence tends to connect the defendant with the crime in a way that may reasonably satisfy a jury that the accompliceis telling the truth, andit may beentirely circumstantial. (People v. Hayes, supra, 21 Cal.4th at p. 1211.) Munoz’s testimonyin the instant case was sufficiently corroborated. With regard to the Mills-Ewy crimes (Counts V through VII), Self claims those crimes were notsufficiently corroborated. (SAOB 288-289.) As previously demonstrated in Respondent’s Argument V, Munoz’s testimony and identification of Self as the shooter was corroborated by: the recovery of shotgun wadding from Ewy’s vehicle which matched the caliber of a shotgun recently acquired by Self; the recovery of shotgun shells from the rear of Alvarez’s Colt (where Munoz described Self as sitting during the Mills-Ewy shooting); and the forensic analysis of the damage to Ewy’s vehicle, which indicated the shotgunblast had a high-to-low,rear-to-front trajectory which perfectly matched Munoz’s description ofSelf firing the shotgun from the rear and over the roof of the Colt (rather than from the front passenger where Munoz wassitting). Self’s jury did not simply adopt Munoz’s testimony regarding the Mills-Ewy shooting without looking to the other evidence,as during deliberations, his jury requestedto see the police reports from the Mills- Ewy shooting,indicating they were carefully examining the evidence. (6 CT 1367.) With regard to the Mans-Jones (Counts I & II) and Aragon murders (Count III), Self claims Munoz’s testimony was “crucial” in proving. his presence, intent, and special circumstance liability, and was also “crucially 183 important”in the jury’s determination of the appropriate penalty. However, Self does not claim Munoz’s testimony as to these counts was uncorroborated. (SAOB 289.) This is not surprising, as Munoz’s testimony was amply corroborated. Regarding the Mansand Jones murders (Counts I & II), Munoz’s testimony wascorroborated by the physical evidence gathered from the crime scene(including shoeprints consistent with Self’s British Knights tennis shoes, tire impressions consistent with Alvarez’s Colt, the recovery of items tossed out the car window after the murder, and the placement of the bodies) and the autopsies of the victims (describing the numberandnature oftheir wounds). (See Statement ofFacts, Murders ofJoey Mans and Timothy Jones.) As to the Aragon murder (CountIII), Munoz’s testimony was corroborated by, among other things: ballistics tests showing several of the casings foundat the crime scene came from weaponsstolen by Self and Romeroin earlier robberies; autopsy results which aligned with Munoz’s description ofthe crime; and the recovery ofplastic sabot pieces from Aragon’s neck which were consistent with the sabot shells recently purchased by Self and later used by him in the Feltenberger shooting. (See Statement of Facts, Murder of Jose Aragon.) Indeed,as set forth in the StatementofFacts and with regardto all ofthe crimes charged, Munoz’s testimony was amply corroborated by direct or circumstantial evidence of appellants’ guilt, including credible eyewitness identifications, considerable physical evidence obtained from both the crime scenes and from searchesofappellants’ homes andvehicles, ballistics tests and autopsyresults, other forensic evidence matching appellants’ vehicles or shoes, and/or appellants’ damaging police interviews. Given the sufficient corroboration in this case, appellants cannot and have not demonstrated any prejudice& 60. Romero merely adopts Self’s argument as to the accomplice instructions (RAOB 596) and does not raise any specific assertions of 184 X. SELF FORFEITED HIS JUROR BIAS CLAIM, AND IN ANY EVENT, BECAUSE THE JURORS INDICATED THEY WOULD FAITHFULLY AND IMPARTIALLY PERFORM THEIR DUTIES, SELF’S CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND IMPARTIAL JURY WERE NOT ABRIDGED Self argues this Court mustreverse his conviction and sentence because eight of the jurors who decided his case (Juror Nos.1, 2, 4, 6, 8,9, 11, & 14) werebiased in favorofthe death penalty, in violation ofhis rights to a fairtrial and impartial jury underthe Fifth, Sixth, and Fourteenth Amendmentsto the United States Constitution, and Article I, section 16, of the California Constitution. (SAOB 327-342.) AlthoughSelf failed to challengeall but one of these jurors for cause, and did not use available peremptory challenges to remove any of them, Self argues he has notforfeited his claim of error. Self contends he should be relieved of the consequences of his inaction because either: (1) trial counsel committed ineffective assistance in not removing the biased jurors; or (2) the right to an impartial jury is a fundamental personal nght which cannot be waived. (SAOB 334-342.) Self’s claim must be rejected. First, by failing to challenge these jurors for cause or exercise available peremptory challenges, the defense indicatedits satisfaction with and approval of the seated jurors, and thus Self may not now reasonably claim error on appeal. Second, becausethe jurors’ statements did not demonstratethat their views on capital punishment would substantially impair the performance of insufficient corroboration. But, as discussed herein and set forth in the Statement of Facts,all of the charges supported by Munoz’s testimony were sufficiently corroborated. Andas previously discussed,the fact that Romero’s jury acquitted him ofthe Steenblock robbery-kidnaping,proves they considered each countseparately and did not simply adopt Munoz’stestimonyin toto. (8 CT 1724-1732, 1786-1835.) 185 their duties as jurors, there was noerror, no ineffective assistance of counsel, and noviolation of Self’s constitutional rights. To preserve a claim ofjurorbias for appellate review,this Court requires a defendant to challenge the juror for cause and use available peremptory challengesin the trial court. (People v. Bonilla (2007) 41 Cal.4th 313, 339; People v. Hinton, supra, 37 Cal.4th at. p. 839; People v. Coffman & Marlow, supra, 34 Cal.4th at p. 1) The theory behind such a rule is evident: “[A] party’s failure to exercise available peremptory challenges indicates relative satisfaction with the unchallenged jurors . . . and [thus] a defendant cannot reasonably claim error.” (People v. Morris (1991) 53 Cal.3d 152, 184, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830.) In the instant case, Self only challenged oneseatedjuror for cause (Juror No.8), but did not thereafter exercise a peremptory challenge to remove Juror No.8. (24 RT 3935; 30 RT 4752-4776.) Indeed, although Self now claims three-fourths of his jury wasbiased, he did not exercise even one peremptory challenge in selecting the regular jurors, he had one peremptory challenge remainingafter the selection ofalternates, and heultimately accepted the panel as constituted. (30 RT 4758-4776.) If Selfbelieved thesejurors threatened his right to a fair and impartial jury, he should have used his peremptories to preservethat right or otherwise expressed dissatisfaction with his jury. He did not, and he may not now complain. Self contends that his right to challenge a violation of his right to a fair and impartial jury could not be waived. (SAOB 334-342.) In support of his argument, Self cites to Supreme Court dicta and a numberoffederal cases, none of which are controlling authority upon this Court” (SAOB 335, 341.) In 61. See, e.g., United States v. Martinez-Salazar (2000) 528 USS. 304, 316 [120 S.Ct. 774; 145 L.Ed.2d 792][suggesting in dictum that a defendant could choose to let a biased juror remain on his jury and then claim Sixth Amendmenterror on appeal]; Hughes v. United States (6th Cir. 2001) 258 F.3d 186 fact, the Supreme Court dicta cited by Self is contradicted by other Supreme Court dicta on the same subject.’ (See Ross v. Oklahoma (1988) 487 U.S.81, 453, 463-464; United States v. Quintero-Barraza (9th Cir. 1995) 78 F.3d 1314, 1353-1354 (Dis. opn. ofTang,J.); Johnson v. Armontrout(8th Cir. 1992) 961 F.2d 748, 754; McCollough v. Bennett (N.D.N.Y. 2003) 317 F.Supp.2d 112, 119. 62. The United States Supreme Court has never had the occasion to directly address this issue of waiver, and thus there is no controlling United States Supreme Court precedent. In his concurrencein thejudgment in United States v. Martinez-Salazar, supra, Justice Scalia criticized the dictum nowcited by Self: I do not join the opinion of the Court because it unnecessarily pronounces upon the question whether, had respondent not expended his peremptory challenge, he would have been able to complain about the seating ofthe biasedjuror. ... Since he did expend the challenge, that issue is simply not before us. I am far from certain, moreover, that the Court's suggested resolution of the issue is correct. It is easy enough to agree that we have no warrant "to read into [Federal Rule of Criminal Procedure] Rule 24"... .a requirement that peremptories be used to remove veniremen properly challenged for cause. The difficult question, however, is not whether Federal Rule of Criminal Procedure 24(b) requires exercise of the peremptory, but whether normal principles of waiver (not to say the even more fundamental principle of volenti non fit injuria) disable a defendant from objecting on appealto the seating of a juror he wasentirely able to prevent. I would notfindit easy to overturn a conviction where, to take an extreme example, a defendant had plenty of peremptories left but chose instead to allow to be placed upon the jury a person to whom he had registered an objection for cause, and whose presence he believed would nullify any conviction. Theresolution ofjuror-bias questions is never clear cut, and it may well be regarded as one of the very purposes of peremptory challenges to enable the defendant to correctjudicial error on the point. Indeed, that must have been one oftheir purposes in earlier years, when there was no appeal from a criminal conviction, [citation] so that if the defendant did not 187 85 [108 S.Ct. 2273, 101 L.Ed.2d 80] [Had [the challenged juror] sat on the jury that ultimately sentenced petitioner to death, and hadpetitioner properly preserved his right to challenge the trial court's failure to remove [the challenged juror] for cause, the sentence would have to be overturned.”], emphasis added,citing Adams v. Texas (1980) 448 U.S. 38, 45 [100 S.Ct. 2521, 65 L.Ed.2d 581]; see also Thompsonv. Altheimer & Gray (7th Cir. 2001) 248 F.3d 621, 623 [describing the Martinez-Salazar dictum as a “heads-I-win-tails-you-lose position: ifhe wins ajury verdict, he can pockethis victory, and if he loses, he can get a new trial.”].) In sum, Self offers nothing to contravene this Court’s clear and established precedent requiring a defendant to express dissatisfaction with his jury in order to preservethe claim for appeal. Further, this case perfectly illustrates two justifications for the waiver doctrine. First, by electing not to exercise his four unused peremptory challenges, Self effectively chose to have the jurors he nowcriticizes sit on his jury. Self should not be permitted to change tactics nowthatthetrial is over. Second, had Self exercised a peremptory challenge against these jurors or alerted the trial court that he was dissatisfied, the issue could have been resolved at trial. Accordingly, Self is precluded from raising this issue on appeal. In anothereffort to avoid forfeiture of his claim, Self suggests his trial correct the error by using one of his peremptories, the error would not be correctedatall. It is certainly not clear to me that the institution of appeals exempted defendants from using peremptories for this original purpose, thereby giving them (in effect) additional challenges. Because the question is not presented (and hence cannot be authoritatively resolved), I would leave it unaddressed. (United States v. Martinez-Salazar, supra, 528 U.S.at pp. 318-319 [Scalia, J., conc. judg.].) 188 counsel committed ineffective assistance in not removing the biased jurors. (SAOB 334-342.) Whether this Court examines the merits of Self’s claim under the rubric ofineffective assistance of counsel or otherwise, this Court must answerthe samequestion: Did these jurors demonstrate actual penalty bias that would substantially impair the performanceoftheir duties? Clearly, upon examination ofthe record, the answeris no, and Self’s claim fails on the merits. In reviewing challengesfor cause, the applicable law issettled: The state and federal constitutional guarantees of a trial by an impartial jury includetherightin a capital case to ajury whose members will not automatically impose the death penalty for all murders, but will instead consider and weigh the mitigating evidence in determining the appropriate sentence. [Citation.] '[A] juror may be challenged for cause based uponhis or her views concerningcapital punishmentonly ifthose views would "preventor substantially impair" the performance ofthe juror's duties as defined by the court's instructions and the juror's oath.’ [Citations.] If the death penalty is imposed by ajurycontaining even one juror who would vote automatically for the death penalty without considering the mitigating evidence,'the State is disentitled to execute the sentence.’ [Citation.] Assessing the qualifications ofjurors challenged for cause is a matter falling within the broaddiscretion ofthetrial court. [Citation.] Thetrial court must determine whether the prospective juror will be ‘unable to faithfully and impartially apply the law in the case.’ [Citation.] A juror will often give conflicting or confusing answers regarding his or her impartiality or capacity to serve, and the trial court must weigh the juror's responses in deciding whether to removethe juror for cause. The trial court's resolution ofthese factual matters is binding on the appellate court if supported by substantial evidence. ([Citation.] ‘[WJhere equivocal or conflicting responsesare elicited regarding a prospective juror's ability to imposethe death penalty,the trial court's determination as to his true state ofmind is binding on an appellate court. [Citations.]' [Citation.]" (People v. Boyette (2002) 29 Cal.4th 381, 416, quoting People v. Weaver (2001) 26 Cal.4th 876, 910; Morganv.Illinois (1992) 504 U.S. 719, 729 [112 S.Ct. 2222, 119 L.Ed.2d 492,]; Wainwright v. Witt (1985) 469 U.S. 412, 424 [105 S.Ct. 844, 83 L.Ed.2d 841].) 189 In the context of an ineffective assistance of counsel claim, this Court asks whether any ofthe challenged jurors “would have been properly excused under this standard [of challenging jurors for cause]”; if not, the ineffective assistance claim fails. (People v. Coffman & Marlow, supra, 34 Cal.4th at pp. 47-48, citing Strickland v. Washington (1984) 466 U.S. 668, 687 [104 S.Ct. 2052, 80 L.Ed.2d 674] [claims of ineffective assistance of counsel entail deficient performance assessed under an objective standard of professional reasonableness and prejudice measured bya reasonable probability of a more favorable outcomein the absence ofthe deficient performance] and People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) Appellants face a high hurdle when raising a claim ofineffective assistance ofcounsel on direct appeal with respect to peremptory challenges. “‘ “Because the use of peremptory challenges is inherently subjective and intuitive, an appellate record will rarely disclose reversible incompetencein this process.” [Citations.]” (People v. Coffman & Marlow, supra, 34 Cal.4th at p. 48.) After examinationofthe record,it is apparent that the jurors’ statements did not demonstrate their views on capital punishment would substantially impair the performanceoftheir duties as jurors. Juror No. 1 expressed approval of the death penalty, believed the punishment wasnotcarried out frequently enough®’, and was unsure if a defendant’s backgroundorlife experiences was relevant to the determination of penalty. (3 SCT [Redacted Juror Questionnaires] 653, 659; 25 RT 4030.) Juror No.1 indicated, however,that she “would haveto be very sureofthe evidence to vote for [the death penalty],” she understood the death penalty was not required, she would beable to put 63. Juror No. 1 did not expressa belief that too few defendan‘s were sentencedto death;rather, she believed that“there are so manythatare on death rowthat are there for 20, 30 years and nothing happens.” (25 RT 4030.) 64. Hereinafter “RJQ.” 190 aside her personal views concerningthe death penalty during deliberations, and those views would not substantially impairherability to conduct the required weighing process. (3 SCT [RJQ] 653, 656, 658; 25 RT 4030-4031, 4054- 4055.) She indicated that she would “consider” and weigh the evidence, “would follow the instructions and the laws,” would be able to vote in favor of life imprisonment without the possibility of parole if that were the appropriate penalty in light of the evidence introduced at the penalty phase®’, and would not automatically vote in favor of the death penalty ifthe defendant were foundguilty offirst degree murder with special circumstancespresent. (3 SCT [RJQ] 656-658.) Juror No. 2 also approvedofthe death penalty, believed the punishment wasnot carried out frequently enough(“a lot ofpeople are given that sentence but are still alive”), and was unsure if a defendant’s background orlife experiences wasrelevantto the determination ofpenalty. (5 SCT [RJQ] 1208, 1214; 23 RT 3821.) Juror No. 2 indicated, however, that she was “open” to both the death penalty and life without parole, she would beableto putaside her personal views concerningthe death penalty during deliberations, and those views would not substantially impair her ability to conduct the required weighing process. (5 SCT [RJQ] 1213; 23 RT 3822-3823.) She indicated that she would “not automatically vote for anything,” her decision “would depend 65. Self asserts that “Juror No. 1 indicated that she would only vote for life imprisonment without the possibility of parole if the killing had been accidental or unintentional and the defendant did not‘fit the normal criminal mode.” (SAOB 329-330.) This assertion is a blatant mischaracterization of Juror No. 1's statements. Juror No. 1 actually said she would automatically vote for life imprisonment without parole instead of the death penalty if the killing was unintentional or accidental because of an absence ofintent to kill and the defendantnotfitting the “normal criminal mode.” She never said this wasthe “only” time she would vote for life without parole, just that this was one circumstance where she would automatically vote for life in prison without the possibility of parole. (3 SCT [RJQ] 659-660.) 191 on the judge’s instructions and the evidence,” she would be able to vote in favoroflife imprisonment without the possibility of parole if that were the appropriate penalty in light ofthe evidence introducedat the penalty phase, and she would not automatically vote in favor ofthe death penalty if the defendant were foundguilty of first degree murder with special circumstances present. (3 SCT [RJQ] 1211-1215.) Juror No. 4 expressed approval of the death penalty, believed the punishment was not imposed frequently enough and could be a deterrent to crime, and signified herbeliefs were consistent with the Biblical doctrine of “eye for an eye.” (3 SCT [RJQ] 764-765.) Juror No. 4 indicated, however,that she believed a defendant’s background was “probably” relevant to the determination ofpenalty, she considered sentencing an “individual thing,” she would beable to put aside her personal views concerning the death penalty during deliberations, and those views would notsubstantially impairher ability to conduct the required weighing process. (3 SCT [RJQ] 769-770; 26 RT 4249-4250.) She also appearedto take jury service quite seriously, indicating she hadgiven a lot of thoughtto her responsibilities and stating, “if I was on trial I would wantpeople that were concerned aboutit, like myself, to be there.” 66. Self complains that Juror No. 2 “equatedreckless indifference with intentto kill.” (SAOB 330.) Juror No. 2's primary point was that she would consider the death penalty within the felony-murdercontext, i.e., “somebody who’s a non-shooter but who either shared the intent to kill or was a major participant with reckless disregard.” (23 RT 3855-3 856.) As recognized by this Court: In many cases, a prospective juror’s responses to questions on voir dire will be halting, equivocal, or even conflicting. Given the juror’s probable unfamiliarity with the complexity ofthe law, coupled with the stress and anxiety of being a prospective juror in a capital case, such equivocation should be expected bythe nature of the questions posed. (People v. Fudge (1994) 7 Cal.4th 1075, 1094.) 192 (26 RT 4252, 4287.) Juror No.4 indicated that she would weigh the evidence and follow the law, would beable to vote in favor oflife imprisonmentwithout the possibility of parole if that were the appropriate penalty in light of the evidence introducedatthe penalty phase, and she would not automatically vote in favor of the death penalty ifthe defendant were foundguilty offirst degree murder with special circumstances present. (3 SCT [RJQ] 767-771.) Juror No.6 believed in the death penalty, thought the punishment was not used “often in this state [and] takes years to happen,” signified that a defendant’s background was “possibly” relevant to the determination of penalty, and did not believe people were arrested without “some reasonable causeto arrest [them].”"©(3 SCT [RJQ] 834, 838, 844.) And while Juror No. 6's brother waskilled in a “triple murder”by “two brothers” and shehad a “law enforcement background,” she gaveno indication that she would notor could not follow the law based upon these experiences. In fact, Juror No. 6 explained,“I have seenall sides. As an educator,I deal with children from all walksof life. I feel I have the ability to be fair, but I am not a person who can be easily swayed if I feel there is adequate justification for my decision.” (3 SCT [RJQ] 822, 832, 847.) She also expressly stated that she would beable to put aside her personal views concerningthe death penalty during deliberations, and those views would not substantially impair her ability to conduct the required weighing process. (3 SCT [RJQ] 843.) Juror No.6 indicated that she would weigh the evidence and follow the law, would beableto vote in favor of life imprisonment without the possibility of parole if that were the 67. Juror No. 6 neverstated that she believed Selfwas “probably guilty because he had been arrested and wasin custody,” as Self asserts in his opening brief. (SAOB 331.) She only stated that she believed that “with the laws we » have,” people aren’t arrested without “some reasonablecause.” (3 SCT [RJQ] 834.) She also expressly stated that she would not find a defendant guilty simply because he was charged with murder. (3 SCT [RJQ] 834.) 193 appropriate penalty in light ofthe evidence introduced at the penalty phase, and she would not automatically vote in favorofthe death penalty if the defendant were found guilty offirst degree murderwith special circumstances present. (3 SCT [RJQ] 841-845.) Juror No. 8 approved of the death penalty as a form of punishment, initially appeared to favor the death penalty forall intentionalkillings, and was unsure if a defendant’s background wasrelevantto the penalty determination. (4 SCT [RJQ] 949, 955; 24 RT 3898.) Shealsoinitially appeared to have some conflict in her answers, but Juror No.8 ultimatelyclarified that she was “open” to both the death penalty andlife in prison withoutparole, “would have to look at both mitigating and aggravating” circumstances before makingher decision on penalty, and “would not automatically do anything without looking at all the facts and considering everything.” (4 SCT [RJQ] 956; 24 RT 3924-3925.) She indicated she had previously served on a jury and “did well . . . in the deliberation andall of the facts were broughtout, talking aboutit.” (24 RT 3896-3897.) Juror No.8 did not believe the death penalty was usedneither too seldom nortoo often, and she stated that she would be able to putaside her personal views concerning the death penalty during deliberations, and those views would not substantially impair her ability to conduct the required weighing process. (4 SCT [RJQ] 949, 954.) Finally, Juror No. 8 indicated that she would weigh the evidence and follow the law, would beable to vote in favor oflife imprisonment withoutthe possibility of parole if that were the appropriate penalty in light ofthe evidence introducedat the penalty phase, and she would not automatically vote in favorofthe death penalty if the defendant were foundguilty offirst degree murder with special circumstancespresent. (4 SCT [RJQ] 952-956.) After the defense challenged Juror No.8 for cause,the trial court found that although Juror No.8 initially indicated “she would impose the death 194 penalty if the defendants were convicted of murder,” she later clarified her answerthat she would consider both aggravating and mitigating factors before determining the proper punishment and would consider both forms of punishments as a “reasonablepossibility.” The court thereupon denied Self’s challenge for cause and ruled Juror No. 8's views would “not prevent or substantially inhibit her duty in accordance with the law andher oath.” (24 RT 3935-3936.) Juror No. 9 approved of the death penalty for first degree murders, thought a defendant’s background would be “possibly” relevantto the penalty determination if the defendant werea first-offender, and believed life without the possibility of parole could be “aseffective as the death penalty as long as there is no parole.” (4 SCT [RJQ] 986, 992.) Juror No. 9 indicated, however, that‘his belief in the death penalty was “not a strong one,” he would be able to put aside her personal views concerning the death penalty during deliberations, and his views on the death penalty would not substantially impair his ability to conduct the required weighing process. (4 SCT [RJQ] 991; 24 RT 3969.) He stated he would “have to look at all of the evidence” in making his penalty determination, he would weigh the evidence and follow the law, he would be able to vote in favoroflife imprisonment withoutthe possibility ofparole ifthat were the appropriate penalty in light of the evidence introduced atthe penalty phase, and he would not automatically vote in favor of the death penalty if the defendant were foundguilty offirst degree murder with special circumstances present. (4 SCT [RJQ] 989-993; 24 RT 3969-3970.) Juror No. 11, a correctional officer, supported the death penalty, believed that life in prison without the possibility of parole was “a waste to the taxpayers,” and thoughtcurrent laws favored criminals. (4 SCT [RJQ] 1004- 1005, 1008, 1023.) She also believed the death penalty was used too seldom and that a defendant’s backgroundorlife experiences were “possibly” relevant 195 to the penalty determinationifit involved his past criminalactivities. (4 SCT [RJQ] 1023, 1029.) Juror No. 11 indicated, however, that she would be able to put aside her personal views concerning the death penalty during deliberations, her views would not substantially impair her ability to conductthe required weighing process, and she would weigh the evidence and follow the law. (4 SCT [RJQ] 1026-1030; 23 RT 3822-3823.) She also indicated that she would automatically vote for life without parole for an accidental or unintentional killing, she would “have to know the reasons behind the crime and the evidence against the defendant” in deciding on penalty in a felony- murder situation, she wouldbe able to vote in favor of life imprisonment without the possibility of parole if that were the appropriate penalty in light of the evidenceintroducedat the penalty phase, and she would not automatically vote in favor of the death penalty if the defendant were found guilty offirst degree murder with special circumstances present. (4 SCT [RJQ] 1026-1 030.) As recognizedbytrial defense counsel, Juror No. 11 appearedto give serious thoughtto the questions posed in voir dire. (25 RT 4105-4107.) She confirmed during voir dire that she was open to both the death penalty andlife in prison without the possibility of parole, her job as a correctional officer would notinhibit her ability to be fair and impartial, and she would not consider the financial aspects ofpunishment when making her decision. (25 RT 4106- 4108.) When asked bythe prosecutor if she could return a verdict of death, Juror No. 11 replied, “I think so,” further stating “[i]t would be hard . . . [to] find[] someone guilty and say[] they deserve to die.”(25 RT 4135-4136.) Juror No. 14 believed “certain circumstances . . . require” the death penalty, but said it “would not be myfirst choice of punishment.” She also 68. Juror No. 11 was the mother of four children, two of whom were unemployed adult malesliving at home, while another was a drug-addicted adult female living on the streets. (4 SCT [RJQ] 1002.) 196 believed life imprisonment withoutthe possibility ofparole was “necessary for certain crimes,” andthat a defendant’s background information was“possibly” relevant “as it pertains to the case.” (3 SCT [RJQ] 690, 696.) Juror No. 14 indicated, however, that she would be able to put aside her personal views concerning the death penalty during deliberations, that she “would not assume that a person should beput to death based onthe crime alone,” that her views on the death penalty would not substantially impair her ability to conduct the required weighing process, and that she understood the requirements to “deliberate” and “go over all the evidence.” (3 SCT [RJQ] 695; 24 RT 3880, 3911.) She also stated that she would weigh the evidence andfollow the law, she would be ableto vote in favorof life imprisonment withoutthe possibility ofparole ifthat were the appropriate penalty in light ofthe evidence introduced at the penalty phase, and she would not automatically vote in favorofthe death penalty if the defendant were foundguilty offirst degree murder with special circumstancespresent. (3 SCT [RJQ] 1211-1215.) She said “depending on the circumstances” and “what was presented,” she could rendereither penalty. (24 RT 3911.) Self argues that Juror Nos. 1, 2, 4, 6, 8, 9, 11, and 14 gave answers strikingly similar to those given by a prospective juror in People v. Boyette, supra, 29 Cal.4th at p. 381, whom this Court held should have been excluded for cause. Contrary to Self’s assertions, there are significant differences that distinguish the answers ofBoyette juror from the jurorsin this case. The juror in Boyette indicated that he was "strongly in favor" of the death penalty and “somewhat pro-death”(id. at p. 417); Self’s jurors did not indicate a strong preferencefor the death penalty. Thejuror in Boyette indicated he would apply a higher standard ("I would probably have to be convinced") to a life sentence than to one of death and equivocated when asked whether he would exclude consideration of a life term (ibid.); Self’s jurors did not and instead agreed to 197 weigh the evidence and remain open to both penalties. Perhaps most important, however,werethe serious doubts the juror in Boyette expressed aboutthe very possibility oflife imprisonmentwithout possibility ofparole; he simply did not believe there was such a thing. The Boyette juror admitted he would not follow an instruction to assumethat a sentenceoflife in prison with no possibility of parole meantthe prisoner would neverbe released. (Id. at pp. 417-418.) In contrast, Self’s jurors all indicated a willingness to follow the court’s instructions and never expressed such a strong and unshakeable preference for the death penalty. In sum,Self’s jurors, unlike the prospective juror in Boyette, did not demonstrate views that would prevent or substantially impair the performanceoftheir duties as jurors. The answers given by Self’s jurors more closely resemble the answers and rulings examined and upheldbythis Court in People v. Ledesma, supra, 39 Cal.4th at p. 641, and People v. Crittenden, supra, 9 Cal.Ath at p. 83. For example, one prospective juror in Ledesma “stated several times that he definitely would vote for the death penalty if a deliberate, premeditated murder were proved” and was not inclined to give weight to the defendant’s backgroundin reaching his decision. (Peoplev. Ledesma, supra, 39 Cal.4th at p. 672.) However,like Self’s jurors, this Ledesma prospective juror agreed,if instructed, to consider mitigation and the possibility of life imprisonment without the possibilityofparole. (/d. at p. 672.) Similarly, another prospective juror in Ledesmastated that someone who commits murdershould getthe death penalty andthat he would automatically vote for the death penalty if he were convinced an intentional murder had been committed. But this prospective juroralso stated this was onlyhis opinion, that he would keep an open mind as to both penalties and that he would follow the law. (/d. at pp. 672-673.) The trial court declined to excuse these two prospective because, although death 198 inclined, each juror agreed he would follow the law and consider both penalties. This Court upheld thetrial court’s ruling. (Jbid.) Similarly, in People v. Crittenden, supra, 9 Cal.4th 83, one prospective jurorinitially indicated he believedthatifa defendant had committed deliberate, first degree murder, he or she should receive the death penalty, that the death penalty was not imposed frequently enough, and a defendant's background or life experiences would notaffect his decision to impose the death penalty. The juror also indicated, however, that he would be able to put aside his personal views concerningthe death penalty, weigh the evidence, follow the law,and not automatically vote for death. (/d. at p. 122.) A second prospectivejuror in Crittenden initially equivocated on whether he would automatically vote in favor of the death penalty and expressed a belief in the death penalty as a deterrent to crime. But when later asked directly whether he would vote in favor of the death penalty regardless of what evidence waspresented asto a defendant’s background,thejuror respondedthat he "could go either way" and would not vote automatically in favor of the death penalty. The juror further stated that he would follow the guidelines provided by the court and could be neutral at the inception of the penalty phase. (/d. at pp. 122-123.) This Court upheldthe trial court’s denial of the defense challenges of cause, as neither juror “expressed viewsindicative of an unalterable preference in favor of the death penalty,”and each juror indicated he would consider the facts and follow the law. (/d. at p. 123.) This Court’s rulings in Ledesma and Crittenden apply equally here. NoneofSelf’s jurors expressed an “unalterable preference in favorofthe death penalty,” andinsteadall of Self’s jurors assured the court they couldfollow the law, weigh the evidence, and consider both penalties. (People v. Crittenden, supra, 9 Cal.4th at p. 123.) Accordingly, because the instant jurors did not demonstrate views that would preventor substantially impair the performance 199 oftheir duties as jurors, there wasno errorby the court or by counsel, and thus no violation of Self’s rights to a fair trial and an impartial jury. Self’s argument mustfail. XI. APPELLANTS WERE NOT PREJUDICED BY TECHNICAL CHARGING ERROR ALLEGING DUPLICATE MULTIPLE MURDER SPECIAL CIRCUMSTANCES Appellants contend they were prejudiced by the charging of duplicate multiple-murder special circumstancesandasks this Court to reverse their death sentences. (RAOB 520-525; SAOB 496.) Appellants reason that the “gross repetition” ofthe duplicate allegations had a “subliminal effect” upon the juries and provided “greater aggravation than the simple fact of being guilty of one murder.” (RAOB 524-525; SAOB 496.) Appellants’ speculative claim of prejudice should be rejected. While the information incorrectly alleged duplicate multiple-murder allegations, the juries were keenly aware of the numberof murdervictims, and neither the arguments or instructions gave the impressionthat the multiple murders were worse just because more than one multiple-murder special circumstance was alleged. In short, there was no prejudice. Whenthere are multiple murders alleged in the same capital case, the prosecution should not allege the multiple-murderspecial circumstance as to each murder count; instead, the prosecution should allege it once, separately from the murder counts. (People v. Avena (1996) 13 Cal.4th 394, 425; People v. Allen (1986) 42 Cal.3d 1222, 1273.) The rationale for this rule is that " ‘alleging two special circumstances for a double murder improperlyinflates the risk that the jury will arbitrarily impose the death penalty. .. .'" (People v. 200 Allen, supra, 42 Cal.3d at p. 1273, quoting People v. Harris (1984) 36 Cal.3d 36, 67.) Whenthe prosecution nonetheless has charged this special circumstance as to more than one murder count, and whenthe jury has foundit true as to more than one count, this Court usually hasstricken all but one ofthese specia l circumstances but not reversed the judgment. (People v. Halvorsen (2007) 42 Cal.4th 379, 422; People v. Avena, supra, 13 Cal.4th atp. 425; People v. Diaz (1992) 3 Cal.4th 495, 565; People v. Jones ( 1991) 53 Cal.3d 1115, 1149 ; People v. Gallego (1990) 52 Cal.3d 115, 201; People v. Andrews (1989) 49 Cal.3d 200, 224; People v. Garrison (1989) 47 Cal.3d 746, 793; People v. Odle (1988) 45 Cal.3d 386, 409-410; Peoplev. Allen, supra, 42 Cal.3d at p. 1273.) In other cases, this Court has noted the error but nonetheless affirme d the sentence withoutstriking the additional multiple-murder special circumstance findings. (People v. Daniels (1991) 52 Cal.3d 815, 876, 893; People v. Lucky (1988) 45 Cal.3d 259, 270, 301, 304; People v. Ruiz (1988) 44 Cal.3d 589, 599, 620-621, 625; People v. Rodriguez (1986) 42 Cal.3d 730, 788, 794-795.) When considering the effect on the jury's penalty determination of having charged the multiple-murder special circumstance as to each murder countrather than only once,this Court has foundthe error harmless becauseit was not reasonably possible that the error affected the death verdicts. (People v. Halvorsen, supra, 42 Cal.4th at p. 379; People v. Avena, supra, 13 Cal.4th at p. 425; People v. Jones, supra, 53 Cal.3d at p. 1149; People v. Daniels, supra, 52 Cal.3d at p. 876; People v. Gallego, supra, 52 Cal.3d at p. 201; People v. Miller (1990) 50 Cal.3d 1002; Peoplev. Rich, supra, 45 Cal.3d at p. 1114; People v. Lucky, supra, 45 Cal.3d at p. 301; People v. Dyer (1988) 45 Cal.3d 69; People v. Ruiz, supra, 44 Cal.3d at pp. 620-621, People v. Allen, supra, 42 Cal.3d at pp. 1281-1283; Peoplev. Rodriguez, supra, 42 Cal.3d at p. 788.) Specifically, this Court has found no prejudice from this error in a 201 double-murder case where, like here, each special-circumstan ce allegation named the victim in the other murder count. (People v. Avena, su pra, 13 Cal.4th at p. 425.) In reaching this conclusion, this Court has explaine d that "there is little potential impact upon a jury from duplicative multiple-m urder special circumstances." (People v. Ruiz, supra, 44 Cal.3dat p. 620.) There is no prejudice where the jury was aware of the numberof victims and murders alleged (People v. Avena, supra, 13 Cal.4th at p. 425; People v. Daniels, supr a, 52 Cal.3d at p. 876; People v. Miller, supra, 50 Cal.3d at p. 1002; People v. Rich, supra, 45 Cal.3d at p. 1114; Peoplev. Lucky, supra, 45 Cal.3dat p. 301; People v. Dyer, supra, 45 Cal.3d at p. 69; People v. Ruiz, supra, 44 Cal.3dat p. 620; People v. Allen, supra, 42 Cal.3d at pp. 1281-1282; People v. Rodriguez, supra, 42 Cal.3d at p. 788), and no arguments or instructions gave the impression that the multiple murders were worse just because more than one multiple-murder special circumstance had been charged. (People v. Daniels, supra, 52 Cal.3d at p. 876; People v. Gallego, supra, 52 Cal.3d at p. 201; People v. Miller, supra, 50 Cal.3d at p. 1002; People v. Lucky, supra, 45 Cal.3d at p. 301; People v. Dyer, supra, 45 Cal.3d at p. 69; People v. Ruiz, supra, 44 Cal.3d at pp. 620-621; People v. Allen, supra, 42 Cal.3d at pp. 1282-1283; People v. Rodriguez, supra, 42 Cal.3d at p. 788.) In this case, instead of charging one multiple-murder special circumstance for all three murders, the prosecution charged two multiple-murder special circumstancesasto each of the three murder counts. (4 CT 821-834.) The juries subsequently found the special circumstancestrue as to all counts. (8 CT 1715-1717, 1724-1726, 1733-1747, 1786-1801.) This charging decision was technical error and not prejudicial. Contrary to appellants’ speculation of a “subliminal effect” upon the juries, the charging decision did notaffect the juries’ death determination because the juries were keenly aware of the number of victims and murders alleged. This was 202 especially so because each special-circumstance allegation in the information and onthejury verdict forms named the victimsin the other murder counts. (4 CT 821-834; 8 CT 1715-1717, 1724-1726, 1733-1747, 1786-1801.) Additionally, there were no arguments orinstructions giving an impression that the multiple murders were worse just because more than one multiple-murder special circumstance had been charged. (54 RT 8003-8030, 8082-8116.) In fact, the instructionsreferred only generally to “special circumstances found to be true”and notspecifically to the multiple-murder special circumstances, and at the very outset of closing argument, the prosecutor pointedly told the jurors that their weighing process was not “mechanical,” “mathematical,” or “Just count[ing] up the factors.” (54 RT 8004, 8052-8053, 8063, 8073, 8083, 8136, 8145, 8160; 9 CT 1964, 1989, 1999, 2013-2014, 2033, 2057, 2066, 2083- 2084.) In sum, appellants’ claim of prejudice is pure speculation and wholly without merit. Underthese circumstances,it is not reasonably possible that the juries would have reacheda differentresult if only one multiple-murderspecial circumstance had beenalleged. (People v. Avena, supra, 13 Cal.4th at p. 425; see also Brown v. Sanders (2006) 546 U.S. 212, 220-221 [126 S.Ct. 884, 163 L.Ed.2d 723, 733,] [invalidated special circumstance producesconstitutional error only when the jury could not have given aggravating weightto the same facts and circumstances under the rubric of some other, valid sentencing factor].) 203 XI. THE TRIAL COURT’S ADMISSION OF VICTIM IMPACT EVIDENCE DID NOT ABRIDGE APPELLANTS’ CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR AND RELIABLE PENALTY DETERMINATION, NOR DID THE PROSECUTOR COMMIT MISCONDUCTIN OFFERING AND ARGUING VICTIM IMPACT EVIDENCE Appellants contend that their Fifth, Sixth, Eighth, and Fourteenth Amendmentrights under the United States Constitution to due process and a fair and reliable penalty determination were violated when the trial court admitted and the prosecutor argued evidence concerning the character of murder victims Aragon, Mans, and Jones, and the impactoftheir murders upon their families, friends, and society. Appellants make broad attacks on victim impact evidence in general, arguing for a categorical ban on victim impact evidenceorat least severe limitations on its use, in addition to specific attacks on the particular evidence admitted in this case. (SAOB 343-382, 492; RAOB 130-286, 596.) Appellants have waived many of their challenges to such evidence on appeal, and in any event, because the victim impact evidence admitted in this case was well within the statutory and constitutional guidelines for such evidence, there was no error whatsoever, let alone error of a constitutional magnitude. Moreover, even assuming error, appellants were not prejudiced by the relatively brief victim impactevidence, given the weight of the other evidence in aggravation, the instructionsgiven, and the overall scope of the penalty proceedings. Before the penalty phase,Self filed a motion to exclude victim impact evidence. (8 CT 1836-1860.) Romerolaterjoined in Self’s motion to exclude. (8 CT 1877, 1880; 48 CT 7173-7176.) During the hearing on the defense motion, the prosecutor indicated that the victim impact evidence would be limitedto the testimonyofthe victims’ family members andonefriend. (48 RT 204 7175.) Thetrial court denied the defense motion to exclude the evidence and allowed the prosecutionto presenttestimony from family membersanda friend of the three victims. (48 RT 7173-7176.) As outlined in the Statement of Facts, the prosecution presented the following testimony from the victims’ family and friends: Jose Aragon’s stepmother Lydia Roybal-Aragon, friend Leighette Hopkins, and sister Stephanie Aragon; Joey Mans’ mother Catherine Mansandhissister Angela Mans; and Timothy Jones’ father James Jones. These witnessestestified to the victims’ unique personalities, as well as the impact of the murders upon themselves and the community. (49 RT 7276-7372). The testimony from these witnesses took place over one dayoftrial and lasted a total of less than four hours. (8 CT 1885.) The prosecution then presented the testimony of approximately a dozen witnesses to each of the juries (a total of nearly 24 witnesses overthree days) to document appellants’ continuing violent conduct in jail. (8 CT 1887- 1895, 1921; 50 RT 7374-7464; 51 RT 7484-7683.) In mitigation, the defense presented nearly two days worth of testimony from several witnesses, recounting appellants’ difficult upbringing, dysfunctional family dynamics, and positive behaviors (including Self’s artwork and Romero’s expressed desire to change). (8 CT 1922-1932, 1954A; 52 RT 7697- 7853; 53 RT 7859-7926.) Asaninitial matter, appellants have waived any specific challenges to the substance ofthe victim impact testimony admitted and arguedin this case. (See, e.g., RAOB 212-214, 242, 245-251, 596; SAOB 345-351, 357-358, 360, 363, 368, 370-376, 492.) In their motions to exclude such evidence, appellants madeonly broad attacks on victim impact evidence in general. (8 CT 1836- 1860; 48 RT 7173-7176.) At no timeprior to or during the penalty phase did appellants lodge any specific objectionsto the particular evidence soughtto be admitted by the prosecutor nor did they object to the prosecutor arguing this 205 evidence. (People v. Wilson (2005) 36 Cal.4th 309, 357 [defendant forfeited challenge to witness's testimony by failing to object as exceeding scope of propervictim impact evidence].) Appellants now complain they did not “dare[] object”to the testimony or argument becausesuchobjections would have been “obnoxious-seeming” andresulted in “intense juror backlash.” (RAOB 212- 216.) But as noted by this Court, the failure to make a timely objection (Evid. Code, § 353) “may not be excused on the ground that [it] would be inconvenient or because of concerns about how jurors might perceive the objection.” (People v. Pollock (2004) 32 Cal.4th 1153, 1181.) As for appellants’ broad attacks on victim impact evidence in general, they have preservedonly oneofthoseclaims: that victim impact evidence must be limited to those facts or circumstances known to the defendantat the time he committed his crime and relevant to establishing his mens rea or criminal activity (8 CT 1845, 1851, 1856; RAOB 274; SAOB 353). Appellants’ other broad claims,that victim impact evidence should be banned altogether (RAOB 256-270) or at least severely limited (RAOB 270-278; SAOB 352-356) to written statements (RAOB 275), a single witness (RAOB 275; SAOB 352- 353), and to only those family members who were personally present at the scene during or immediately after the murders (RAOB 273; SAOB353),have been waived bytheir failure to raise such contentions below. Finally, although appellants noted in their motions below that it would be a violation of due process to admit unduly inflammatory orprejudicial victim impactevidence (8 CT 1856, 1858, 1860), they made no attempts to argue why the specific evidence soughtto be admitted by the prosecution was improperorprejudicial, nordid they objectto the testimony as prejudicial at the time it was introduced. These claims have therefore also been waived on appeal. (RAOB 230-256, 278-286; SAOB 357-382; People v. Roldan (2005) 35 Cal.4th 646, 732.) 206 Even if appellants’ claims have not been waived they lack merit. Prior to 1991, evidence of a murder's impact on a victim and the victim's family and friends was not admissible in the penalty phase of a capital trial. (Booth v. Maryland (1987) 482 U.S. 496, 501-502 [107 S.Ct. 2529, 96 L.Ed.2d 440].) However, in Payne v. Tennessee (1991) 501 U.S. 808, 825 [111 S.Ct. 2597, 115 L.Ed.2d 720], the United States Supreme Court held that "[v]ictim impact evidence is simply another form or method of informing the sentencing authority aboutthe specific harm causedbythe crime in question," andis thus admissible evidence. Likewise, "under California law, a court may permit victim-impact evidence and argumentin appropriate casesat the penalty phase of a capitaltrial to show the circumstancesofthe crime." (People v. Navarette (2003) 30 Cal.4th 458, 515; People v. Edwards (1991) 54 Cal.3d 787, 835.) The admission of victim-impact evidence, however, is not without limits. “Irrelevant information or inflammatory rhetoric that diverts the jury’s attention from its properrole or invites an irrational, purely subjective response should be curtailed.” (Payne, supra, 501 U.S.at p. 836.) Moreover, victim- impact evidence cannot be “so unduly prejudicial that it renders the trial fundamentally unfair” in contravention of a defendant’s right to due process under the Fourteenth Amendment. (/d., at p. 825; People v. Brown, supra, 33 Cal.4th at p. 382; People v. Edwards, supra, 54 Cal.3dat p. 835.) Appellants contend that: the High Court’s decision in Payne was wrong, the limitations set forth in Payne andits progeny are notsufficient, this Court has failed to set appropriate boundaries for victim impact evidence, and accordingly, victim impact evidence should either be banned or severely limited. (RAOB 256-278; SAOB 352-356.) Appellants propose,interalia, that victim impact evidence be limited to: (1) the impact of the murder on only those family members who were personally present at the scene during or immediately after the murder, (2) only those circumstances known or 207 reasonably foreseeable to the defendantat the time of the murder; (3) written statements; and/or(4) the brief and unemotional testimonyofa single witness. (RAOB 256-278; SAOB 352-356.) This Court has consistently expressedits approval ofPayne andrejected anybright-line limitations on victim impacttestimony. (People v. Lewis (2006) 39 Cal.4th 970, 1056-1057; People v. Pollock, supra, 32 Cal.4th at p. 1183; People y. Raley (1992) 2 Cal. 4th 870, 915 [rejecting defendant’s request to declare victim impact evidence and argument improper under the federal Constitution].) As this Court has held: Unless it invites a purely irrational response from the jury, the devastating effect of a capital crime on loved ones and the community is relevant and admissible as a circumstanceofthe crime undersection 190.3, factor(a). (People v. Lewis, supra, 39 Cal.4th at pp. 1056-1057.) In so holding, this Court recognizes that the prosecution has a legitimate interest in rebutting the mitigating evidencethat the defendantis entitled to introduce by introducing aggravating evidence of the harm caused by the crime, “‘reminding the sentencerthatjust as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.”” (People v. Prince, supra, 40 Cal.4th at p. 1179, quoting Payne v. Tennessee, supra, 501 U.S. at p. 825.) Appellants offer no persuasive reasons for this Court to revisit or deviate from its sound, well- established precedent, and this Court should thus reject appellants’ claims to ban or severely limit victim impact evidence. Beyondtheir more generalassertions, appellants also complain that the victim impact evidence admittedin this case violated the limitationsset forth in Payne and California precedent. Specifically, appellants claim: (1) the victim impact witnesses offered irrelevant, excessive, and inflammatory accounts of their loved ones’ personalities and achievements, thereby creating the risk of 208 arbitrary and irrelevant comparisons betweenthe victims and appellants, which wasfurther exacerbated by improper comparison argumentsby the prosecutor (SAOB 360-372, 492; RAOB 211-216, 596); (2) the victim impact witnesses’ emotionally-charged testimony of their grief and loss, including their descriptions of visits to grave sites and celebrations of holidays, had little probative value, and was unduly voluminousandhighly inflammatory (SAOB 363, 373-378, 492; RAOB 138-139, 188-210, 213-214, 230-252, 596); and (3) Lydia Aragon, Stephanie Aragon, Catherine Mans, Angela Mans, and James Jones offered irrelevant and inflammatory opinion evidence about appellants and their crimes (SAOB 357-359, 492; RAOB 244-247, 596). Appellants conclude that the victim impact evidence caused the juries’ emotion to overcome reason, denying them reasoned penalty-phase determinations. (SAOB 378-382, 492; RAOB 252-256, 278-286, 596.) Appellants are incorrect. Nothing in the victim-impact testimony from the five family members and onefriend abridged appellants’ constitutional rights. First, although appellants frequently label the victim impact testimony as excessive and voluminous, that is simply not true. For the three murder victims in this case, the trial court allowed a reasonable six witnesses - five family membersand one friend - to testify regarding the victims’ unique personalities and the harm caused by appellants’ senseless murdersofthree young men. This Court has approved ofmultiple witnessestestifying to victim impact. (See, e.g., People v. Huggins, supra, 38 Cal.4th at p. 175 [no due process violation where seven to eight witnessestestify as to victim impact]; People v. Panah (2005) 35 Cal.4th 385, 416, 494-495[no dueprocessviolation where five membersofvictim’s family testified regarding the victim and their loss}. People v. Boyette, supra, 29 Cal.4th at p. 381; People v. Taylor (2001) 26 Cal.4th 1155, 1171-1172; see John H. Blume,“Ten Years ofPayne: Victim Impact Evidencein Capital Cases,” 88 Cornell L. Rev. 257, 270 (2003) [most 209 states allowing victim impact evidence place no limit on the number of witnesses].) As long as victim impact evidence is not unduly prejudicial pursuant to Evidence Code Section 352,the trial court should have discretion to admit any numberofwitnesses. (See People v. Box (2001) 23 Cal.4th 1153, 1200-1201.) Second,it is well established that evidence of a victim’s character is admissible during the penalty phase ofa capital trial as a circumstance ofa defendant’s offense. (Pen. Code, § 190.3, subd. (a); see People v. Huggins, supra, 38 Cal.4th at pp. 238-239 People v. Robinson, supra, 37 Cal.4th at p. 592, 650; People v. Roldan, supra, 35 Cal.4th at pp. 730-732; People v. Panah,supra, 35 Cal.4th at pp. 494-495; People v. Boyette, supra, 29 Cal.4th at p. 445; People v. Hardy (1992) 2 Cal.4th 86, 200.) Despite this well- established precedent, appellants arguethat the victim impact witnesses in this case offered irrelevant, excessive, and inflammatory accountsof their loved ones’ personalities and achievements, thereby creating the risk of arbitrary and irrelevant comparisons betweenthe victims and appellants, which was further exacerbated by improper comparison arguments by the prosecutor. (SAOB 360-372, 492; RAOB 211-216, 596.) Appellants also claim that: the witnesses’ descriptionsoftheir loved ones involved “inherentdistortionsofthe truth” and provided only idealized or sanitized portraits of the victims’, thus 69. This Court should not consider the extraneous materials appellants ask this Court to consider. Appellants ask this Court to take judicial notice of two newspaperarticles and thetrial record in an unrelated case on appeal. (RAOB 178, fn. 97, 212, fn. 113, 236, fn. 120; SAOB 492.) These requested items were never before the trial court in this case and are irrelevant to resolution of this case. (People v. Massie (1998) 19 Cal.4th 550, 566, fn.4; People v. Peevy (1998)17 Cal.4th 1184, 1206-1208; People v. Ramos (1997) 15 Cal. 4th 1133, 1167; Manginiv. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063-1065.) Moreover, the contents ofnewspaper articles are generally an improper matter for judicial notice. (People v. Ramos, supra, 15 Cal. 4th 1133, 1167.) Accordingly, their request for judicial notice be denied. 210 makingtheir testimonyirrelevant and unreliable (RAOB 212-213; SAOB 3 68, 492); and throughthis testimony, the prosecution soughtnotonly “to hum anize the victims . . . but to deify them andin so doing, to convince the jury that th eir virtues — comparedto the defendants whotooktheir lives — justified imposit ion of a sentence of death” (SAOB 368; RAOB 596). Appellants’ assertio ns are meritless. This Court has explained that evidence concerning a victim's unique personality, including his “zest for life,’ “compassion, loyalty, and extroversion,” and the effect of his death on his family and friendsis, “w ell within the boundaries”ofpermissible victim impact evidence under Payne and Edwards. (People v. Huggins, supra, 38 Cal.4th at pp. 236-238, People v. Montiel (1993) 5 Cal.4th at 877, 935.) This Court has approvedof evidence concerning a victim’s life history, employment, penchant for hard work, community activism, charitable contributions, and religious activities, among other things. (People v. Lewis (2006) 39 Cal.4th 970, 1057, People v. Huggins, supra, 38 Cal.4th at pp. 236-238; People v. Roldan, supra, 35 Cal.4th at pp. 722, 730-732; People v. Pollack, supra, 32 Cal.4th at pp. 1180-1181.) Likewise, this Court has held that specific examples or stories concerning a victim’s life are wholly permissible as relevant victim impact evidence (People v. Roldan, supra, 35 Cal.4th at pp. 722, 730-732), as are photographs ofthe victim. (People v. Stitely, supra, 35 Cal.4th at pp. 564-565; People v. Boyette, supra, 29 Cal.4th at p. 444; People v. Carpenter (1997) 15 Cal.4th 312, 401; People v. Cox (1991) 53 Cal.3d 618, 688.) In describing the character of a victim, witnesses may also testify to the “the psychological effects of [a victim’s] death on other individuals and the community.” (People v. Huggins, supra, 38 Cal.4th at pp. 236-238.) A defendant's “rights are not infringed by evidence or argument showing that the victim was a unique and valuable human being.” (People v. Clark (1993) 5 Cal.4th 950, 1033-1034.) 211 The testimony in the instant case concerning the victims’ characters, including their kind and compassionate personalities, helpful and hardworking ethics, relationships with other people, and their status as “unique and valuable humanbeing[s],” was standard victim impact testimony and did not violate appellant’s right to due process. (49 RT 7277-7284, 7303-7307, 7316, 7319, 7333-7337, 7344, 7346-7347, 7355, 7361-7364, 7371; People v. Clark, supra, 5 Cal.4th at pp. 1033-1034; see also People v. Lewis, supra, 39 Cal.4th at p. 1057; People v. Huggins, supra, 38 Cal.4th at pp. 236-238; People v. Robinson, supra, 37 Cal.4th at p. 650; People v. Roldan, supra, 35 Cal.4th at pp. 730- 732; People v. Panah, supra, 35 Cal.4th at pp. 494-495; People v. Pollack, supra, 32 Cal.4th at pp. 1180-1181; People v. Boyette, supra, 29 Cal.4that p. 445; People v. Hardy, supra, 2 Cal.4th at p. 201.) Further, it was properfor the prosecutor to urge jurors to rememberthe victim andthe life that the victim lived, and to argue that death is the only appropriate means for redressing the loss of that individual. (People v. Montiel, supra, 5 Cal.4th at p. 935,; People v. Clark, supra, 5 Cal.4th at p. 950.) Appellants contend that idealized or sanitized portraits of the victims prejudiced them. (RAOB 212-213; SAOB 368-492.) For example, appellants complain, “No one asked, for example, if Aragon, who had a charming habit of keeping his things ‘all nicely lined up,all clean, always dusted’. . . had an annoying obsessive-compulsive side.” (RAOB 212; SAOB 492.) And appellants posit that based on information in various newspaperarticles, “Jones and Mans were morelike appellant[s] than one would have thought from the trial testimony. They had been characterized outside of court by friends and relatives as ‘drifters who sometimes dabbled in drugs.’” (RAOB 212; SAOB 368, 492.) Appellants also imply that Mans’ and Jones’ love lives or lack thereofwere intentionally kept from the juries, apparently hiding somesort of “flaw.” (RAOB 212; SAOB 492.) First, appellants had the opportunity to 212 cross-examine the victim impact witnessesat trial o n these matters; however, they chose not to do so and may not now complain . Second, contrary to appellants’ assertions, the fact that family membersan d friends described the victims in a positive light does not establish prejudice. As this Court noted in People v. Boyette, supra, “testimony from the vict ims' family members was relevant to show how the killings affected them, not whet herthey werejustified in their feelings due to the victims' good nature a nd sterling character. Accordingly, defendant was not entitled to disparag e the character of the victims on cross-examination.” (People v. Boyette, supr a, 29 Cal.4th at p. 445, originalitalics; People v. Harris (2005) 37 Cal4th 310, 353.) Finally, none of the evidence concerning the victims’ characters, consi dered individually or cumulatively, would have diverted “the jury’s attention f rom its properrole”or invited “an irrational, purely subjective response” on the p enalty phase verdict (People v. Edwards, supra, 54 Cal.3d at p. 836), “untether edto the facts ofthe case.” (People v. Pollack, supra, 32 Cal.4th at p. 1180.) Likewise, the prosecutor did nothing improper whenhe u rged the jury to rememberthe victims’ unique personalities and arguedt hat the impact of their deaths upontheir families and friends justified impo sition of the death penalty. Leaving aside the gross distortions and speculati ve assertions levied by appellants in their opening briefs.(SAOB 366,370-372 ; RAOB 596), the record reflects a prosecutor who appropriately emphasize d the uniquelives led by the victims, appellants’ callous and brutal crime spree, the pain and suffering caused by victims’ murders, and appellants’ direct culpabili ty for this resulting harm. (54 RT 8003-8030; 8082-81 16.) Inshort, the pros ecutor’s argument was nothing out of the ordinary and was entirely proper. Appellants’ rights 70. For instance, Self strains credulity when he speculat es that the prosecutor’s reference to Aragon’s habit of spray-painti ng his shoes was a veiled comparison to appellants’ spray-painting of Magno lia Interiors. 213 were not infringed by the prosecutor arguing this evidence as a basis for imposition ofthe death penalty. (People v. Clark, supra, 5 Cal.4th at pp. 1033- 1034.) Furthermore, the jury in the instant case heard an abundance of testimony concerning appellants’ upbringing, including numerous moving stories about their dysfunctional household, exposures to violence and drugs, impoverishedearly years, strained relationships with their mother and father, and physical and emotional abuse. (52 RT 7697-7800, 7817-7853; 53 RT 7893-7925.) The jury also learned aboutSelf’s artistic abilities andinterests, and Romero’s attempts to better his life. (53 RT 7859-7865, 7871-7890 .) Giventhatjurors learned about appellants’ life history, character, and prospects, the fact that jurors also learned aboutthelife history, character, and prospects of appellants’ victims did not offend appellants’ rights to due process. (Payne v. Tennessee, supra, 501 U.S. at p. 825.) As the United States Supreme Court noted in approving victim impact evidence in Payne: “[J]ustice, though dueto the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. Weare to keep the balance true.” (Ibid, see also People v. Clark, supra, 5 Cal.4th at pp. 1033-1034.) The People’s victim impact evidence and argument regarding Aragon, Mans, and Jones showed nothing more than their “uniqueness as . . . individual human being[s],” andthetrial court’s admission ofsuch evidencedid not constitute an abuseofdiscretion, nor did it violate appellants’ federal constitutionalright to due process. (Payne v. Tennessee, supra, 501 U.S.at p. 823.) Next, appellants argue that the victim impact witnesses’ emotionally- charged testimonyoftheir grief and loss, including their descriptionsofvisits to grave sites, celebrations of holidays, and dreams of the deceased, hadlittle probative value, and was unduly voluminousand highly inflammatory. (SAOB 363, 373-378, 492; RAOB 138-139, 188-210, 213-214, 230-252, 596.) 214 Appellants are incorrect. Testimony by the victims’ parents,siblings, and friend regarding the immediate and lasting effects of their loved ones senseless murders was well within the parameters for appropriate victim-impactevidence. It is well-establishedthat testimony by family members about the various ways their lives were adversely affected by a victim’s death is proper. (People v. Huggins, supra, 38 Cal.4th at pp. 236-238; People v. Panah, supra, 35 Cal.4th at pp. 494-495; People v. Benavides, supra, 35 Cal.4th at p. 107; People v. Stitely, supra, 35 Cal.4th at p. 564; People v. Pollack, supra, 32 Cal.4th at pp. 1182-1183; People v. Boyette, supra, 29 Cal.4th at p. 444; People v. Taylor, supra, 26 Cal.4th at p. 1155; People v. Kirkpatrick (1994) 7 Cal.4th 988, 1017.) That families are aggrieved is an “obvious truism” and an “obvious and predictable” consequence ofmurder. (People v. Sanders (1995) 11 Cal.4th 475, 550.) While victim-impact evidence is obviously emotional,it is not surprising or shocking. (/d.) Such evidence need not comefrom bloodrelatives of a victim, but may come from the victim’s personal friends and neighbors as well. (Peoplev. Williams (2006) 40 Cal.4th 287, 306, fn. 4; People v. Huggins, supra, 38 Cal.4th at p. 236-238; People v. Pollack, supra, 32 Cal.Ath at p. 1183; People v. Benavides, supra, 35 Cal.4th at p. 107; People v. Brown, supra, 31 Cal.4th at p. 573; People v. Marks, supra, 31 Cal.4th at pp. 236-237.) Likewise, the law does not require that a witnessrestrict their testimony to the impact upon themselves, omitting any mention of the impact upon other family members. (People v. Panah, supra, 35 Cal.4th at p. 395.) Evaluating victim impact testimony under Payne and Edwards, this Court has permitted descriptions of what the victim’s family saw when they viewed the victim at the mortuary, visits to gravesites, changes in holiday celebrations, resulting drug abuse or mental disease, and other physical or mental manifestations of psychological impactfrom the victims’ murders. (People v. Jurado, supra, 38 Cal.4th at p. 72, 215 [traumafrom death ofa child,gravesite visits, holidays changed, and impact on children ofvictim, including nightmares]; People v. Harris, supra, 37 Cal.4th 310, 351-352 [descriptions of victim at mortuary and photos of gravesite]; People v. Panah, supra, 35 Cal.4th 494-495 [testimony that family member used drugs and becamesuicidalas a result of offense proper]; People v. Brown (2004) 33 Cal.4th 382, 397-398 [“manifestationsofpsychological impact” and “understandable human reactions” experienced by family and friends is admissible]; People v. Pollack, supra, 32 Cal.4th at p. 1183 [family member decided to sell home where murder occurred because he could not stand the memory of the crime]; People v. Benavides, supra, 35 Cal.4th at p. 107 [journal entries or letters written by witness]; People v. Brown, supra, 31 Cal.4th at p. 573 [victim’s lovedonesstill afraid to go outside ofthe house three years after offense]; People v. Marks, supra, 31 Cal.4th at pp. 236-237 [deterioration of physical condition andloss of job as a result of victim’s death]; People v. Boyette, supra, 29 Cal.4th at pp. 440, 444 [severe impact on victim’s children].) Thetestimony admitted in the instant case was well within the scope of Payne and Edwards, and echoed much ofthe evidence approvedby this Court in the previously cited cases. The victims’ loved onestestified to their last memoriesoftheir loved ones (49 RT 7285, 7307-7308, 7337, 7366), the extent of their shock and pain upon learning of their loved ones’ murders (49 RT 7287-7288, 7292, 7309, 7320, 7337, 7366), descriptionsoftheir loved ones at the mortuary or morgue (49 RT 7291, 7292, 7314, 7348-7349, 7367), funeral arrangements and funeral services (49 RT 7292-7293, 7322, 7368), the difficulty in knowing how their loved ones died (49 RT 7300, 7322-7324, 7344, 7353, 7370-7371), the impact upon otherindividuals (family, friends, society) (49 RT 7282, 7290-7291, 7294-7300, 7310, 7350, 7353-7355, 7368- 7369), their frequent thoughts and dreamsoftheir deceased loved ones (49 RT 7316, 7339-7340, 7350, 7352), gravesite visits (49 RT 7327-7328, 7371), 216 lingering fear for their own safety (49 RT 7315, 7325, 7351-7352), alcohol abuse and depression (49 RT 7326-7327, 7350), and their ongoing grief and difficulties in adjusting to life without their loved ones (including the celebration of holidays and family dynamics) (49 RT 7294-7300, 7310-7313, 7325-7328, 7339-7341, 7346, 7369-7371). In sum,the testimony revealed the immediate and lasting effects of the victims’ murders upon their surviving family memberandfriends, as well as the “understandable human reactions” that accompanied learning of a son or brother’s brutal and senseless murder. (People v. Brown,supra, 33 Cal.4th at pp. 397-398; see also People v. Wilson, supra, 36 Cal.4th at p. 357.) The witnesses’ testimony,although emotional, wasnot surprising, shocking, or inflammatory. Instead,it wasa tragically obvious and predictable consequence of appellants’ murders of three young men. (People v. Sanders, supra, 11 Cal.4th at p. 550.) Lastly, appellants argue that Lydia Aragon, Stephanie Aragon, Catherine Mans, Angela Mans, and James Jones offered irrelevant and inflammatory opinion evidence about appellants, their crimes, and the appropriate punishment. (SAOB 357-359, 492; RAOB242, 244-247, 596.) Appellants’ characterizations of the witnesses’ testimonyare entirely false. The witnesses did not give opinions about the crimes, appellants, or the appropriate punishment; rather, their testimony encompassed their immediate andlasting reactions to their loved ones’ brutal murders. Lydia Aragontestifiedto: her reaction to receiving Jose’s truck from the police with his bloodstill covering the truck bed (49 RT 7292); her recurring and disturbing thoughts aboutthe last minutes of Jose’s life (49 RT 7301); her immediate reaction to Jose’s murderandherlasting difficulty in grappling with the “senseless” murder ofher son (49 RT 7289);herdesire to “cradle him, hold him, say that [she] loved him,”in the last minutes ofhis life, even though she recognized that she could not save him given the mortal woundsthat appellants 217 intentionally inflicted upon him (49 RT 7301); and her sympathyforthelittle boy whodiscovered Jose’s mutilated andlifeless bodyin the back ofthe truck and the effects Jose’s murder had upon the boy (49 RT 7301). Stephanie Aragontestified thatit felt like someone had taken Jose away like they owned him. (49 RT 7324.) Catherine Manstestified to dreams about her son, Joey Mans. In those dreams, Joeytells her it “hurts me backhere,” but that he’s “okay” now. (49 RT 7339.) Catherine, like Lydia, testified to her recurring and disturbing thoughts aboutthe last minutes of her son’s life, including how she imagines his pain and struggle to breathe. (49 RT 7344.) Angela Manstestified to seeing her brother in his casket at the funeral home. Angela believed her brother had a “scared”expression onhis face in the casket, and she believed he was scared in his final moments ofhis life. (49 RT 7348-7349.) James Jonestestified to his difficulties in attending appellants’ trial because he did not want to know too much about how his son Timmydied. James recounted how,as a father, he can not stand the thought of his son suffering and knowing he was going to die. He also expressed his lasting difficulty in grappling with why someone would want to kill his kind and generous son. Describinghis visits to his son’s gravesite, Jones testified that hetells his son they will meet again somedayandthat everything will be okay. (49 RT 7370-7371.) This Court has approvedoftestimony similarto that givenin the instant case. In People v. Wilson, supra, 36 Cal.4th 309,a sistertestified that she could not understand why anyone would kill her brother, and was “angry” that someone wouldkill her brother for money. This Court held that the sister’s statements “permissibly concerned the ‘immediate effects of the murder’ and her ‘understandable human reactions’ on hearing someone had killed her brother for money.” (Id. at p. 357.) 218 Likewise, in People v. Pollock, supra, 32 Cal.4th at p. 1153, witnesses described how their loved ones were “brutally murdered” and their lasting thoughts about the crime. (Jd. at p. 1182.) Thevictims’ sontestified how he “cleaned the bloodstains from his parents' house” andthat he decidedto sell the house because ““‘it was such a savageact, I just couldn't have the memory of their murder that close to me.’” (/bid.) He also testified that “‘the major problem I haveis the savagenessofthis murder” and how “he knew hisparents must have suffered greatly during the last 15 minutesoftheir lives.” (/bid.) In holding the evidence admissible, this Court stated: The witnesses did nottestify merely to their personal opinions about the murders. Rather, their testimony was limited to how the crimes had directly affected them. [One witness]testified that she was intensely shocked not only by the fact of the [victims’] deaths, but also by the brutal manner in which they died. [The victims’ son]testified that the circumstances of his parents' deaths made it impossible for him to rememberhis parents, or his own childhood, without in some manner imagining the suffering of their final minutes. Thiswas proper and admissible victim impact evidence. As in Payne v. Tennessee, supra, 501 U.S. 808, the testimony “illustrated quite poignantly some of the harm that [defendant's] killing[s] had caused; there is nothing unfair about allowing the jury to bear in mind that harm at the sametimeasit considers the mitigating evidence introduced by the defendant. (Id. at p. 826.) (People v. Pollock, supra, 32 Cal.4th at p. 1182.) The testimonyin the instant case was no different than the testimony approved in Pollock and Wilson. The witnesses poignantly expressed their reactions to the murders of their loved ones, which included normal and expected imaginingsof their family members’ last moments oflife, difficulty in grappling with appellants’ brutal and senseless murdersoftheir loved ones, and intense reactions to their loss. In other words, their testimony permissibly concerned the “immediate effects of the murder[s]” and their “understandable humanreactions” to dealing with such a tremendousloss. (People v. Wilson, 219 supra, 36 Cal.4th at p. 357; People v. Brown,supra, 33 Cal.4th at pp. 397-398.) There wasnoerror. Regardless, assuming arguendo there wasanyerror in the admission of victim impact evidence, reversal is not required. Erroneous admission of victim-impact evidenceis subject to a harmless-erroranalysis. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1058; People v. Johnson, supra, 3 Cal.4th at p. 1246.) There is no reasonable probability that appellants would have enjoyed a more favorable outcome,absent the victim impact evidence. (People v. Jones, supra, 29 Cal.4th at p. 1229, fn.11.) Moreover, any federal constitutional error would also be harmless beyond a reasonable doubt. (Chapmanv. California, supra, 386 U.S.at p. 18.) First, the entire presentation by the six victim impact witnesses spanned less than a hundredpagesoftestimonyin the penalty phase (49 RT 7276-7372) and wasonly aboutfour hours in length (8 CT 1885), while the prosecution’s remaining case in aggravation (recounting appellants’ other violent conduct) consumed approximately 300 pages. (50 RT 7374-7494; 51 RT 7495-7683;8 CT 1887-11895, 1921). In contrast, appellants’ evidence in mitigation consumednearly 200 pages, twice the length ofthe victim impact testimony.” (52 RT 7697-7920; 8 CT 1922-1932.) Second, the victim impact evidence “paled in comparison to other evidence in aggravation,”i.e., the horrific and uniformly horrible circumstances 71. Most of the witnesses called by appellants appeared before both juries and thus their testimony was considered byboth juries. However, there were a few witnesses that only appeared before one jury; John Bianco and MargaretJoe Louie appeared only before the Selfjury, and Christine Arrabito and Janice Babish appeared only before the Romero jury. Thetotal case in mitigation was 223 pages,with Self’s individual witnesses, Bianco and Louie, consuming only about 20 pagesofthe record. (52 RT 7802-7816; 53 RT 7859- 7865.) Romero’s individual witnesses, Arrabito and Babish, also consumed only about 20 pages of record. (53 RT 7871-7891.) 220 of the capital crimes, appellants’ vicious and prolific crime spree, and appellants’ continuing violent and disturbing conduct while in county jail. (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 970.) Further, as previously discussed, while appellants’s case in mitigation presented a moving accountoftheir early childhood, the evidence also showedthey had the benefit ofa caring extended family even in the worstoftimes, a devoted stepfather and stable homelife by the time they were five (Self) and eight (Romero), and siblings who demonstrated an ability to succeed andavoid the criminal path. In sum,“[t]he challenged evidence could not havetipped the balance in favor of death.” (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1058.) Finally, the trial court instructed the jury not to be swayed bybias or prejudice against appellants. (9 CT 1965, 2034; 54 RT 8053, 8136 [CALJIC No.8.84.1].) Thetrial court also instructed the jury they were “free to assign whatever moral or sympathetic value you deem appropriate to each andall the various factors you are permitted to consider.” (9 CT 2011-2012, 2081-2082; 54 RT 8071-8073, 8158-5160 [CALJIC No. 8.88].) The jury is presumed to have followed these instructions. (People v. Rich (1988) 45 Cal.3d 1036.) In light of the relative brevity of the victim impact evidence, the considerable evidence in aggravation,and theinstructions given,it is clear the admission of the victim impact testimony did not undermine the fundamental fairness of the penalty determination. Even if the victim impact evidence had been excluded, the outcome would have remained the same. Appellants’ death sentences do notrest with unduly prejudicial victim impact evidence;rather, the sentences rest squarely with the evidence in aggravation, including the circumstances of their senseless and brutal crimes. 221 XI. THE TRIAL COURT PROPERLY ADMITTED EVIDENCE OF ROMERO’S ESCAPE ATTEMPT, SHANK POSSESSIONS, AND MULTIPLE ASSAULTS UPON FELLOW INMATE TYREID HODGES Romero claims his federal and state rights to trial by jury, a reliable penalty determination, and due process were violated because the trial court erred in admitting evidence of his escape attempt, shank possessions, and multiple assaults upon fellow inmate Tyreid Hodges. (RAOB 342-383, 517- 519.) Regarding the escape attempt, Romero claims: (1) his “escape preparations hadnotripenedinto an attempt andtherefore did not constitute an actual or attempted crime of violence under Penal Codesection 190.3, factor (b)”; (2) because the escape evidence was inadmissibleas to penalty and highly prejudicial, the trial court erred when it admitted the evidence as showing consciousnessofguilt during the guilt phase; (3) his counsel was ineffective for failing to articulate proper grounds for its exclusion; and (4) the trial court’s instructions on attempt were prejudicially flawed. (RAOB 342-370.) With regard to all three formsof evidence (escape attempts, shanks, and assaults), Romero claims that none roseto the level of criminal activity involving force of violence as contemplated by Penal Code section 190.3, factor (b). (RAOB 370-383, 517-519.) First, Romero forfeited manyofthese claims by failing to raise them at trial. Second, Romero’s arguments are wholly without merit. Romero did not merely make preparations to escape; he made an actual attempt to escape by obtaining weaponsto subdue the guards and completely sawing through his cell bars. And, casting aside the gross distortions offered by Romero,it is clear that all of the challenged evidence demonstrated criminal activity involving force or violence, as contemplated by factor (b) andthis Court’s precedent. 222 A. Romero’s Escape Attempt Constituted “Criminal Activity” And Was Properly Admitted Under Penal Code Section 190.3, Subdivision (b); It Was Also Properly Admitted At The Guilt Phase As Evidence Of Consciousness Of Guilt Priorto trial, Romero’s counsel moved to exclude evidenceofhis escape attempt pursuant to Evidence Code section 352. (6 CT 1224-1226; 30 RT 4735-4736.) Later, before the evidence waspresented, counselraised questions aboutthe credibility and qualifications of the primary witness to the escape attempt, fellow inmate Arthur Dicken. (30 RT 4735-4739; 42 RT 6389-6392.) After holding a hearing under Evidence Code section 402, the trial court admitted the testimony and ultimately denied Romero’s motion to exclude the escape evidence. (42 RT 6391-6397, 6488-6489.) Asoutlined in the Statement of Facts, Dickentestified that during the first few weeks of April 1994, he saw Romero andhis cell mate use hacksaw blades to cut on the bottom bars of their cell door. After Dicken reported Romero’s conduct, officers searched Romero’s cell and uncovered his handiwork. Romero andhiscell mate disguised their efforts by using scotch tape to hold the cell bars in place and toothpaste mixed with paint chips to cover the damageto the bars. The cut bars could be removed, which exposed a gap large enough for someone to crawl through. Romero obtained the hacksaw blades by having his visitors hide the blades in the rigid portion of legal pads which were then mailed to the jail in attorney-mail envelopes. In orderto escape from thejail, inmates need to pass through a numberoflocked doors or gates, either using a key obtained from a deputy or getting a deputy to open them. Romerotold Dicken they planned to escape by waiting until the night shift, slipping through the gap in their cell door, grabbing the deputy doing the head count, and holding him hostage with makeshift shanks until they completed their escape. Romero’s shank was made from a four-to-six inch sharpenedpiece ofmetal, while his cell mate had a small metal spear attached 223 to tightly rolled up newspaper. (42 RT 6418-6425, 6425-6427, 6450-6461, 6472-6477, 6479-6482.) Prior to the penalty phase, counsel soughtto exclude Romero’s statement to Dicken regarding his plan to overpowera guard duringhis escape attempt. (48 RT 7201-7206.) Thetrial court ruled the statement was admissible because it was relevantto establishing the intent element of attempted escape. (48 RT 7205.) The prosecution then used the escape attempt, including Romero’s statements to Dicken, as evidence in aggravation. Thetrial court instructed the jury that unadjudicated criminal activity involving force or violence may be considered as a factor in aggravation (CALJIC No. 8.85), that such activity needed to be proven by a reasonable doubt (CALJIC No.8.86), and the law of attempt crimes (CALJIC Nos. 6.00-6.02). (9 CT 1986-1991; 54 RT 8062- 8065.) In determining whether to impose the death penalty, the jury may consider as an aggravating factor “criminal activity by the defendant which involved the use or attempted use of force or violence or . . . the express or implied threat to use force or violence.” (Pen. Code, § 190.3, factor (b).) A trial court’s decision to admit evidence underfactor (b) is reviewed for abuse of discretion. (People v. Lancaster (2007) 41 Cal.4th 50, 93.) Factor (b) “criminalactivity” is conduct that “demonstrates the commission ofan actual crime, specifically, the violation of a penalstatute ....” (/bid., internalcitations and quotations omitted; People v. Combs (2004) 34 Cal.4th 821, 859.) Romero argues he only engaged in “escape preparations” and his conduct did not amountto the crime of attempted escape (Pen. Code, § 4532, subd. (b)). (RAOB 347-353.) Minimizing his conduct and misconstruingthe law on attempt crimes, Romeroasserts he “only prepared for a departure, [but] he had notstarted going anywhere,”and thus his conduct ofsawing through his 224 cell bars and hiding weaponsto be used on guards did not amountto “putting his .. . plan into action.” (RAOB 349-350.) Thisis utterly false. “An attempt to commit a crime requires a specific intent to commit the crime and a direct but ineffectual act done toward its commission.” (People v. Kipp (1998) 18 Cal.4th 349, 376.) “The act must go beyond merepreparation, and it must show that the perpetratoris putting his or her plan into action, but the act neednotbethelast proximateorultimate step toward commissionofthe substantive crime.” ([bid.) Attempted escape requiresa ““direct, unequivocal act to effect that purpose.’” (People v. Lancaster, supra, 41 Cal.4th at p. 94, quoting People v. Gallegos (1974) 39 Cal.App.3d 512, 517.) This Court has recognized an attempted escape from far less evidence than in this case. (See, e.g., People v. Mason (1991) 52 Cal.3d 909, 954-956 {cuts through screen in cell window but guards discovered cuts before defendant could leave]; People v. Gallego (1990) 15 Cal.3d 115, 155, 196 [note outlining escapeplan,torn bed sheets, and a shank]; People v. Boyde (1988) 46 Cal.3d 212, 248-250 [defendant solicited another inmate to help him escape from the jail roof and the plan involved the other inmate leaving a gun on the roof for the defendant's use in subduing a guard ifnecessary]; compare People v. Lancaster, supra, 41 Cal.4th at p. 94 [handcuffkeys alone without any other evidence doesnotrise to the level of attempted escape].) Here, Romero did not just prepare orplan, heactually put his plan into action and took a “direct, unequivocal act” toward escaping by obtaining hacksaw blades, using the blades to saw throughhis cell barsto create a hole big enoughto crawl through, and concealing weaponsto use in subduing the guards. In essence, Romero did everything butactually escape from his cell. The trial court did not err whenit allowed the escape attempt to be presented to the jury as a matter in aggravation. 225 Likewise, because Romero cannot demonstrate that his counsel’s motion to exclude the evidence on this ground “would have been meritorious,”his ineffective assistance of counselclaim fails as well. (People v. Mattson (1990) 50 Cal.3d 826, 876 ["[A] claim ofineffective assistance of counsel based on a trial attorney's failure to make a motion or objection must demonstrate not only the absenceofa tactical reason for the omission [citation], but also that the motion or objection would have been meritorious.. . ."], overruled bystatute on another ground asstated in People v. Jennings (1991) 53 Cal.3d 334, 387, fn. 13.) Thetrial court also did not err when it admitted the escape attempt as evidence of consciousness of guilt during the guilt phase. As recognized by Romero, “ordinarily an attempt or plan to escape from jail pendingtrial is relevant to establish consciousnessofguilt.” (People v. Kipp (2001) 26 Cal.4th 1100, 1126; People v. Box, supra, 23 Cal.4th 1153, 1205; People v. Morris, supra, 53 Cal.3d at p. 196, disapproved on another ground in People v. Stansbury, supra, 9 Cal.4th at p. 824, fn. 1; People v. Terry (1970) 2 Cal.3d 362, 395.) Romeroargues, however, the evidence should have been excluded from the guilt phase under Evidence Code 352 because“[its] minimal probative value on guilty wasclearly outweighed byits tremendouspotential for prejudice in the later penalty determination.” (RAOB 353-357.) Heis incorrect. First, the escape attempt was probativeat the guilt phase of Romero’s consciousnessthat he was guilty of three capital murders and wouldbefacing the death penalty or at a minimumlife in prison. (People v. Kipp, supra, 26 Cal.4th at p. 1126.) Second, balancedagainst this probative value, there was little risk of undue prejudice at the guilt phase, considering the volume and considerable strength of the other evidence presented to the jury. To further reducetherisk ofprejudice,thetrial court instructed the jury that, ifthey found that Romero attempted to escape from custody, “such conductis not sufficient 226 byitself to prove guilt and its weight and significance, if any, are matters for your consideration.” (7 CT 1565; 46 RT 7049-7050; People v. Box, supra, 23 Cal.4th at p. 1205.) Third, as just established, because the escape attempt was also admissible at the penalty phase as evidence in aggravation, Romero’s prejudice argumentfails. Finally, as discussed below, the jury was properly instructed on its consideration of the escape attempt during the penalty phase, andin light of the evidence presented, Romero cannot demonstrate prejudice” Additionally, Romero faults the trial court for its instructions on attempt given to the jury, claiming the instructionstold the jury to treat preparations as an attempt. (RAOB 357-361.) Theinstructions did no such thing. In accordance with CALJIC Nos. 6.00, 6.01, and 6.02, Romero’s jury was instructed: An attempt to commit a crime consists of two elements, namely, a specific intent to committhe crime and a direct but ineffectual act done towards its commission. In determining whetheror not such an act was done,it is necessary to distinguish between merepreparation,onthe one hand,andthe actual commencementofthe doing of the criminal deed, on the other. Mere preparation which may . . . consist ofplanning the offense or ofdevising or obtaining or arranging the meansforits commission,is not sufficient to constitute an attempt. However, acts of a person whointendsto commit a crime will constitute an attempt where those acts clearly 72. Romero recognizes that his counsel did make an objection to the evidenceat the guilt phase under Evidence Code section 352, but he asserts that counsel then “abandoned” the effort or did not adequately articulate his objection. (RAOB 351, 353.) Again, because Romero cannot demonstrate that his counsel’s motion to exclude the evidence on this ground “would have been meritorious,” his ineffective assistance of counsel claim fails. (People v. Mattson, surpa, 50 Cal.3d at p. 876 ["[A] claim of ineffective assistance of counsel based on a trial attorney's failure to make a motion or objection must demonstrate not only the absenceofa tactical reason for the omission [citation], but also that the motion or objection would have been meritorious. . . ."], overruled by statute on another ground asstated in People v. Jennings (1991) 53 Cal.3d 334, 387, fn. 13.) 227 indicate a certain, unambiguous intent to commit that specific crime. Such acts must be an immediate step in the present execution ofthe criminal design, the progress of which would be completed unless interrupted by some circumstance notintended in the original design. A person whohas once committed acts which constitute an attempt to commit a crimeis liable for the crime of attempted escape byforce or violence even though he does not proceed further with the intent to committhe crime, with by reason ofvoluntarily abandoninghis purpose or because he was preventedorinterfered with in completingthe crime. If a person intends to commit a crime but, before committing an act toward the ultimate commission of the crime, freely and voluntarily abandonstheoriginal intent and makes noeffort to accomplish it, such person hasnot attempted to committhe crime. (Emphasis added; 54 RT 8062-8063; 9 CT 1986-1988.) The wording ofthese instructions stem directly from this Court’s case law setting forth the law on attempt crimes. (See, e.g., People v. Lancaster, supra, 41 Cal.4th at p. 94 [“direct, unequivocalactto effect” the purposeofthe attempted crime]; People v. Toledo (2001) 26 Cal.4th 221, 230 [“‘Whenitis established that the defendant intended to commit a specific crime and that in carrying out this intention he committed an act that caused harm orsufficient dangerof harm,it is immaterial that for some collateral reason he could not complete the intended crime.’”]; People v. Kipp, supra, 18 Cal.4th at p. 376 (“specific intent to commit the crime and a direct but ineffectual act done 99 66. toward its commission,” “act must go beyond merepreparation,” “must show that the perpetratoris putting his or her plan into action butthe act need not be the last proximate or ultimate step toward commission of the substantive crime.”].) And this Court has held that CALJIC Nos. 6.00 and6.01 “accurately state th[e] law.” (People v. Dillon (1983) 34 Cal.3d 441, 453.) As CALJIC No. 6.02 simply states the converse of CALJIC No. 6.01 andreiterates the requirements for both specific intent and a direct act towards the commission 228 of the underlying crime. Accordingly, the trial court’s instructions accurately stated the law. Assuming arguendo any error, Romero wasnot prejudiced under even the moststringent standard. (Chapmanv. California, supra, 386 USS.at p. 18; People v. Lancaster, supra, 41 Cal.4th at pp. 94-95, People v. Jones (2003) 29 Cal.4th 1229, 1264, fn. 11; People v. Kipp, supra, 26 Cal.4th at p. 1127; People v. Jackson (1996) 13 Cal.4th 1164, 1232.) Even if the escape attempt was excluded at the guilt phase, it is not reasonably probablethat the jury would have returned guilt verdicts more favorable to Romero. The prosecution presented overwhelming evidence establishing Romero’s guilt, including credible eyewitness identifications, considerable physical evidence obtained from both the crime scenes and from searches of appellants’ homes and vehicles, appellants’ damaging police interviews, and Munoz’s corroborated accomplice testimony. Given the strength of the prosecution's case, and the absenceofanyaffirmative defense evidence ofinnocence,thejury's knowledge of the attempted escape would not have contributed in any significant way to the guilt verdicts. Likewise, even assumingerror in its admission at the penalty phase, there is no reasonable possibility it affected the verdict. Although the prosecutor argued the escape attempt as a matter in aggravation, he never suggested that the death penalty was the “only means of protecting the public from a defendant who poses a significant escape risk.” (People v. Lancaster, supra, 41 Cal.4th at p. 95; People v. Jackson, supra, 13 Cal.4th at pp. 1232-1233.) The prosecutor primarily argued the escape attempt as evidence of Romero’s sophisticated, scheming nature, and his propensity to violence in or out of prison. (54 RT 8026-8030.) Healso argued that the escape attempt, if successful, wouldlikely have led to “someone[getting] hurt or killed.” (54 229 RT 8026-8027, 8030.) This argument was wholly proper.” (People v. Champion (1995) 9 Cal.4th 879, 940 [if supported by the evidence, the prosecution may comment on the possibility that if the defendant is not executed he will remain a danger to others].) Moreover, the evidenceofthe escape attempt paled in comparisonto the other evidence presented. (People v. Combs, supra, 34 Cal.4th at pp. 860-861; People v. Tuilaepa, supra, 4 Cal.4th at p. 591.) The jury knew Romero callously murdered three young men and demonstrated a cavalier attitude toward extinguishing human lives. The circumstances of the crimes were uniformly horrible, cruel, and senseless, and Romero continued his violent behavior in jail with assaults on four fellow prisoners (Medeiros, Jutras, Thibedeau, Hodges) and numerous shank possessions. In sum, given the comparative impact of the escape attempt evidence, the minimalrole it played in the prosecutor's argument, and the other compelling evidence presented during the penalty phase, any error was harmless beyond a reasonable doubt. B. Romero’s ShankPossessions, Assaults On Tyreid Hodges, And Escape Attempt Involved The Threat Of Violence And Were Properly Admitted Under Penal Code Section 190.3, Subdivision (b) In addition to the escape attempts, Romero claimsthat his assaults on Tyreid Hodges and multiple shank possessions did not rise to the level of criminal activity involving force of violence as contemplated by Penal Code section 190.3, factor (b). (RAOB 370-383, 476-490, 517-519.) This is untrue. 73. Romero suggests these arguments made by the prosecutor were improper. (RAOB 367.) Because Romero failed to object to this line of argumentat trial, he has forfeited any claim of prosecutorial misconduct. (People v. Lewis & Oliver, supra, 39 Cal.4th at p. 1060.) Further, as demonstrated, the arguments were wholly proper in light of the evidence presented. 230 Romero moved to exclude evidenceofhis assaults upo n Tyreid Hodges as not amounting to crimes of force or violence u nder factor (b). Romero alleged factor (b) contemplated more violent assaults than those he perpetrated against Hodges. (6 CT 1337, 1343; 48 RT 7211-7212 ; 51 RT 7500.) The trial court denied the motion and allowed Hodges to testify. (51 RT 7501.) Romero did not seek to exclude evidenceofhis shank possessio ns, andthus, that claim is waived. (6 CT 1337-1344; People v. Lewis & Oliver, supra, 39 Cal.4th at p. 970.) Likewise, Romero made no attemptto exclude th e escape attemptonthis basis, and therefore this claim is also waived. (6 CT 1337-1344; People v. Lewis & Oliver, supra, 39 Cal.4th at p. 1052.) At an y rate, his claims lack support. As outlined in the Statement of Facts, Hodges testifi ed that from September 1994 through March 1995, Romero assaulte d him with various toiletry items and bodily fluids while they were housed in the same unit at the Riverside County Jail. In a six to seven month time frame, Romero threw hot urine at Hodges as he walked down the hallway, squirted h ot urine and feces at Hodges through Hodges’cell door, and hit Hodges with a shampoobottle, hair brush, and soap. In doing so, Romerooften made re ferences to Hodges being a child molester and that people like Hodgesdid not ha ve any rights in the day room. Romerosaid he would “take [Hodges] out”i f it was up to him. (51 RT 7502-7511, 7514.) The evidencealso established several instances where Romero p ossessed handmade weaponsin his cell. All of the weapons were cap able of slashing, stabbing, or cutting people. The shanks included a toot hbrush that was sharpened to a point on the handle end, a hairbrush that w as cracked and sharpened to form a pointat the handle, a pencil with a razor blade embedded near the lead tip, and a sophisticated toothbrush-shank with two razor blades 231 melted into the handle and formed into a point along with a handle made of plastic wrap. (51 RT 7416-7421, 7484-7489, 7495-7499.) With regard to the shank possessions and escape attempt, Romero argues that because these criminal acts did not involve a communicated threat of violence, they were improperly admitted under factor (b). (RAOB 481-490, 517-519.) Romero’s argumentis virtually identical to the one rejected by this Court in People v. Martinez (2003) 31 Cal.4th 673, 693. In Martinez, the defendantattacked the “implied threat” language, arguing that “no ‘ “implied threat” can exist unless the defendant has committed an act or spoken words directed at an individual or group ofpersons whocan infer that the defendant has made threat. In other words, the term “implied threat” necessarily connotes some form of communication. ...’” This Court found that defendant’s argument“meritless.” (People v. Martinez, supra, 31 Cal.4th at p. 693.) This Court should do so again here. Both the shankpossessions and escape attempt were properly admitted under factor (b). This Court has repeatedly held that the possession of shanks“‘qualifies as a crime involving the implied threat of violence. (People v. Lewis & Oliver, supra, 39 Cal.4th at p. 1053; People v. Combs, supra, 34 Cal.4th at p. 860; People v. Hughes (2002) 27 Cal.4th 287, 382-383; People v. Tuilaepa (1992) 4 Cal.4th 569, 589.) Here, all of Romero’s weapons were capable of slashing, stabbing, or cutting, and clearly involved the threat of violence. Thus, they were properly admitted. This Court also has squarely held that an escape attempt in which no force wasactually used is admissibleif, on its facts, it presented a “threat” of violence. (People v. Mason, supra, 52 Cal.3d at pp. 954-956; accord People 74. Penal Codesection 4502 criminalizes the possession or manufacture of weapons while confined in a penal institution. Penal Code section 4574 criminalizes thepossession of deadly weapon while in prison. (See Peoplev. Hughes, supra, 27 Cal.4th at pp. 383-384.) 232 v. Lancaster, supra, 41 Cal.4th at p. 93, fn.15; see also People v. J ackson, supra, 13 Cal.4th at pp. 1260-1262 (conc. opn., Baxter, J.) (“Escape fr om ajail or prison is a desperate, risky act.It implies a reckless and defiant att itude of resistance to official restraint, which resistance carries the promise of violent consequences to those whointerfere.”) In Mason, the defendant, while awaitingtrial, twice cut through the screen on his cell window,but each time, the cut was discovered before the defendant could actually escape. There was no evidence the defendant was armedor intended violent resistance, bu t the prosecution showedthat the defendant’s intended escape route, as well as any feasible alternative plan, would "almost certainly" have involved a confrontation with a guard. Underthese circumstances,this Court found there were sufficient indicia of potential violence to allow consideration of the attempted escape underfactor (b). (/bid.) Here, Romero’s attempt did not just “almost certainly” involve a confrontation with the guard; Romeroactually anticipated such a confrontation and even obtained a dangerous weaponto use in subduing the guard during his escape. Furthermore, the evidence showed his escape would have involved numerous confrontations with prison personnel and a clear potential for violence. Thus, the trial court properly admitted the escape attempts under factor (b). Finally, Romeroclassifies his repeated assaults upon Tyreid Hodgesas nothing morethan “immature. .. pranks” (RAOB 375-376) and claimsthey did not involvethe level of violence contemplated by Penal Code section 190.3, subd. (b). (RAOB 371-383.) Romero is mistaken. As correctly recognized by the trial court, Romero’s conductinvolved assaultive behavior toward Tyreid Hodges,in violation of Penal Code section 240. (51 RT 7501.) Romeroalso appears to acknowledge that his conduct constituted an assault under Penal Code section 240. (RAOB 374,citing People v. Colantuono (1994) 7 Cal.4th 233 206, 214.) He just complains it was not violent enough for factor (b) consideration. (RAOB 376-377.) Although Romero may viewassaults with hot feces and urine as childish pranks (or just “poop on a shoe”), the law views them as criminal acts of violence. (RAOB 377.) In People v. Lewis & Oliver, supra,this Court rejected a claim similar to Romero’s. In that case, the defendant threw hot coffee and milk at a guard, but missed. This Court held that the trial court properly admitted the evidence because the defendant’s act violated penal law (Pen. Code, § 240) and involved the implied threat of violence. (People v. Lewis & Oliver, supra, 39 Cal.4th at p. 1053; see also People v. Pinholster (1992) 1 Cal.4th 865, 961 [upholding admission ofincident where defendantthrew urine at a deputy’s face].) Likewise, in the instant case, Romero threw hotfeces, urine, and varioustoiletry items at Hodges, but he did not miss his target. And further, he expressly threatened to “take [Hodges] out” ifit was up to him. (51 RT 7502-7511, 7514.) Romero’s conduct was assaultive, criminal, and involvedthe threat of violence. Thus, it was properly admitted. Even assuming error in admitting the challenged evidence, Romero cannotestablish prejudice. (People v. Combs, supra, 34 Cal.4th at pp. 860-861; People v. Tuilaepa, supra, 4 Cal.4th at p. 591.) As previously discussed, the horrible circumstances of the murders, Romero’s cavalier extinguishment of humanlives, and his multiple episodes of violence against other prisoners (Medeiros, Jutras, Thibedeau) overshadowedthe other evidence presented and established “a pattern ofnonconforming and violent behavior.” (/d. at p. 860.) The jury learned with great specificity how Romero hunted three young men like prey, killed them without any apparent remorse, and continuedtosatiate his appetite for violence while awaiting trial. The challenged evidence pales in comparison to the other evidence before the jury, and thus any error was harmless beyond a reasonable doubt 234 XIV. THE PROSECUTOR DID NOT COMMIT MISCONDUCT IN SEEKING ADMISSION OF ROMERO’S STATEMENTS CONCERNING THE THIBEDEAU ATTACK, NOR DID HE COMMIT MISCONDUCTIN ARGUING ROMERO’S FUTURE DANGEROUSNESS BASED UPON THE ATTACK AND THE ADMITTED STATEMENTS Romero argues the prosecutor committed misconduct in seeking admission of Romero’s statements concerning the Thibedeau attack. Specifically, Romero alleges the prosecutor: (1) knew the statement was not probative of Thibedeau’s credibility or to prove Romero’s identity as the attacker; (2) misled and deceived thetrial court into improperly admitting the statement; and (3) later used the statement to argue Romero’s future dangerousness, which he again claims is an improper subject for argument. (RAOB 422-431.) Romero’s claim of error fails. First, he has waived this claim by failing to make an appropriate objection in the trial court. Second,his claim lacks merit because the statement directly supported Thibedeau’s testimony and washighly probative of Thibedeau’s credibility. As previously discussed in the Statement of Facts, the prosecution presented evidence of Romero’s attack on fellow inmate Olen Thibedeau. Thibedeautestified that in June 1994, he wastransferred to Romero’s cell block while awaiting trial on child molestation charges. At 9 p.m. onhisfirst day in the cell block, Thibedeau left his cell to take a showerand havehis half-hour of solo day room time. The rest of the inmates were housedintheir cells. As Thibedeau walked past Romero’s cell, Romero asked Thibedeau “realpolitely” to get him somehotwaterfor coffee. Thinking Romero wasfriendly and not knowing Romero, Thibedeauretrieved the water. (SO RT 7427-7429, 7437- 7444.) 235 After Thibedeau put the water through the slot in Romero’s door, Romero called Thibedeau back andtried to hand him peanuts through a crack in the floor. When Thibedeau was close enough, Romero lungedat him with a makeshift spear, hitting him on the stomach. The spear, which was a little overfour feet long, was made outoftightly rolled newspaper with a sharpened toothbrush handle at the end. The spear came apart when Romero lungedat Thibedeau and thus only caused a scratch on Thibedeau’s stomach. Romero seemed angry that the spear cameapart and because he had not drawn blood. Romero said, “Son of a bitch,” and the inmate next door told Thibedeau, “We're going to get you wherever you go.” Romerotossed the spear out ofthe cell, and Thibedeau then reported the incident and turned over the spear to deputies. (50 RT 7429-7432, 7446-7453, 7458-7460.) On cross-examination, the defense extensively and aggressively questioned Thibedeau onhis child molestation convictions and prior history of otherviolent or sexual offenses. (50 RT 7438-7444.) Although the prosecution had already established that Thibedeau was a child molester, the defense spent four full pages of testimony documenting Thibedeau’s sordid history for the jury. (50 RT 7438-7442.) Through oneline of questioning, the defense also suggested Thibedeau might be seeking favorable treatmentas a result of his accusations against Romero. Thibedeau deniedthe accusations. (50 RT 7442- 7444.) After the defense sought to impeach Thibedeau’s credibility with his prior convictions, the prosecution sought admission ofa statement Romero madeto his girlfriend Stephanie Stinson eight months after the Thibedeau attack. Romero told Stinson that if authorities housed him with a child molester, they should expectan assault. He described a methodofattack which was nearly identical to his attack on Thibedeau. (51 RT 7517-7519, 7522- 7523; Exh. 435-A.) Romerostated: 236 I don’t like violence. I try to avoid it. But whenthey stick a child molester next door to me - expect me not to do something, I'll be his friend, talk to him real nice, bring him close to the door, and then make a little spear about this long, aboutthis skinny, that’s real hard and won’t bend. You puta pencilat the end ofit and strips ofwood. ... Stick him in his neck. (Exh. 435-A.) In seeking admission ofthis statement, the prosecutorargued that given its striking similarity to Thibedeau’s account of Romero’s attack, Romero’s statement to Stinson was “essentially an admission or confession.” Given that defense counsel “made quite an effort to impugn Mr. Thibedeau’scredibility,” he arguedthe statementwasprobative ofThibedeau’s credibility,i-e., “whether or notthe testimony ofthat child molester can be relied upon.” (50 RT 7467, 7469.) The defense argued the statement was “at best a threat of a future assault” and inadmissible under Penal Code 190.3. (50 RT 7468.) The defense also asserted that“the crux”ofits questioning wasto showthatattacks on child molesters are commonin the state penitentiary and it was “not necessarily attacking Mr. Thibedeau’s credibility.” (50 RT 7477-7478.) In admitting the taped conversation,the trial court ruled that the defense impeached Thibedeauwith his prior convictions, his credibility was attacked by ‘the defense based upon the “numerous” questions asked during cross- examination, and the prosecution could rehabilitate Thibedeau with the taped conversation. (51 RT 7476-7478.) The court noted that although the defense may choose notto argue Thibedeau’s credibility in closing argument,their cross-examination ofhim allowedthe “logical inference”that “because he is a child molester you cannot believe him.” (51 RT 7478.) The court stated: And in that regard, it appears to me that because Mr. Romero’s statement during the taped conversation so closely resembles the facts and circumstances underlying the attack on Mr. Thibedeau that it amounts to either an admission or a confession, but that would be up to 237 the jury to determine, that is whetherit is an admission or confession, and if so, what weight, if any to give to it. (51 RT 7477.) On appeal, Romerodoesnotclaim thetrial court erred in admitting the evidence;rather, he makes the unfoundedclaim thatthe prosecutor deceived the court by giving false reasonsfor its admission. Romeroalleges the prosecutor did not need orseek the statementin orderto rehabilitate Thibedeau, but instead soughtits admission so he couldargueit as evidence of future dangerousness in closing argument, which Romeroagain claims is an improper subject of argument. (RAOB 426-431.) Romero has waivedthis claim oferror by failing to raise a misconduct claim in the trial court or otherwise object to the prosecutor’s use of this evidenceat closing argument. (People v. Zambrano, supra, 41 Cal.4th atp. 1082; People v. Davenport (1995) 11 Cal.4th 1171, 1209, 1223.) In any event, his claim is without merit. In order to establish a federal constitutional violation based on conduct ofthe prosecution, Romero mustprove the conduct was so egregious so as to infect the trial with such unfairness as to make the resulting conviction a denial ofdue process. (People v. Jones (1997) 15 Cal.4th 119, 187.) Misconduct implies the use of deception or reprehensible methods to persuade the court or jury. (People v. Padilla (1995) 11 Cal.4th 891, 939.) There was no misconductin this case, much less misconduct amountingto a federal constitutional violation. Although he now attempts to minimize his counsel’s vigorous cross- examination of Thibedeau, the transcript reads quite clearly. While the prosecution had already established Thibedeau’s status as a convicted child molester, the defense chose to spend four full transcript pages aggressively questioning Thibedeau onhis immoralpast. (50 RT 7437-7442.) If all komero wanted to do was demonstrate that child molesters receive unfavorable treatment while incarcerated, he merely needed to ask Thibedeau the four or 238 five questions defense counselasked atthe tail end of cross-examination,e.g., “Mr. Thibedeau, persons whoarein prison for child molesting they are treated as if they are at the lower endofthe pecking order, aren’t they, by the other inmates?” and “Physical harm can cometo you by the other inmates?” (50 RT 7443-7444.) Instead, he spent twenty-some questions impeaching Thibedeau’s credibility based uponhisstatus as a child molester. (50 RT 7438-7442.) Accordingly, based upon the vigorous cross-examination by defense counsel, the prosecution had every reason to seek rehabilitation of their only eyewitness to the attack. In the taped conversation, although Romerodid not mention Thibedeau by name, his description of the attack was nearly identical to Thibedeau’s testimony, and thus, it could be considered an admission or confession ofThibedeau’s allegations which directly supported his credibility. (Evid. Code, § 1101, subd. (c) [evidence of specific instances of conduct admissible to support or attack credibility of a witness], § 210 [relevant evidence includes that relating to the credibility of a witness].) Thus, the prosecution’s argumentto the trial court in this regard was understandable, reasonable, and supported by the rules of evidence. In addition to the prosecutor’s argument seeking admission ofthe taped conversation, the trial court heard from defense counsel, whose argument characterized the evidence and questioning much like Romero does on appeal. After hearing from both sides,the trial court took the matter under submission, and in an appropriate exercise of its discretion, admitted the evidence over defense objection. (People v. Guerra, supra, 37 Cal.4th at p. 1113, citing People v. Rodriguez (1999) 20 Cal.4th 1, 9-10 [on appellate review, a trial court's ruling on the admissibility of evidence will not be disturbed unless the court exercised its discretion in an arbitrary, capricious or patently absurd mannerthat resulted in a manifest miscarriage of justice].) The ruling was entirely reasonable given the defense’s impeachment ofThibedeau’s credibility, 239 the fact that Thibedeau was the prosecution’s only eyewitnessto the attack, and the lack of undueprejudice, in light of the other evidence presented attrial. (Evid. Code, § 352). The trial court was not misled by the prosecutor, as insinuated by Romero. Additionally,thetrial court instructed the jury on how it was to properly consider Romero’s admission to Stinson as evidence of the criminalact alleged. (9 CT 1982-1983, 2000; 54 RT 8061.) In closing argument, the prosecutor asked the jury to infer from Romero’s numerouscrimes, includinghis attack on Thibedeau andthe admitted statement, that he was inherently dangerous, enjoyed violence, and was unlikely to changeif incarceratedfortherest ofhis naturallife. (54 RT 8026-8030.) As discussed in Respondent’s Argument XVI,infra, a prosecutor may arguethat a defendant will be dangerous in the future based upon evidenceof his prior violent conduct. (People v. Zambrano, supra, 41 Cal.4th at p. 1179; Peoplev. Michaels, surpa, 28 Cal.4th at pp. 540-541.) Because Romero’s statement was properly admitted as evidenceofhis attack on Thibedeau,the prosecutor could argue on the basis of this evidence that Romero deserved the death penalty underthestatutory scheme. (See People v. Millwee, supra, 18 Cal.4th at p. 153; People v. Ray, supra, 13 Cal.4th at p. 353; People v. Pinholster, supra, | Cal.4th at pp. 963-964.) In sum,the prosecutor’s argumentto the court in admitting the evidence and argumentto the jury based on this evidence did not amount to misconduct. Regardless, the admission and argumentofthis evidence was harmless under even the most exacting standard ofreview. (People v. Prince, supra, 40 Cal.4th at p. 1299; People v. Gonzalez (2006) 38 Cal.4th 932, 960-961.) Itis virtually inconceivable that Romero’s admission to his girlfriend somehow tipped the scales in favor of the death penalty. Romero’s jury was confronted byhis active participation in a brutal crimespree, continuing violence in pretrial confinement, escapeattempt, andutter disregard for humanlife. The evidence 240 showed Romero hunted his victims like prey, lived off of the proceeds ofhis crimes, and thoroughly enjoyed killing or harming people. It was Romero who asked a wounded and dying Aragon howitfelt to be shot, and immediately thereafter used Aragon’s moneyto enjoy a meal at Coco’s restaurant. (35 RT 5468-5471; 39 RT 5988-6003.) Appellants’ mitigation evidence simply could not compare with the strong evidence in aggravation. While appellants presented evidence of childhood neglect and abuse early in their lives, the same evidence also showed: they hadthe benefit ofloving grandparents andother extendedfamily members even during the worstoftimes; they had the influence of a devoted stepfather and stable family life by the time they were five (Self) and eight (Romero)years old; their mother taught them right from wrong and the value of manners and a good education; they wereintelligent and did well in school when they made the effort; and their brothers raised in the same household achieved success in the military andrejected the criminal path chosen by appellants. Clearly, given the state ofthe evidence, there is no reasonablepossibility that the jury would have returned a more favorable sentence had the statement not been admitted. XV. THE TRIAL COURT PROPERLY EXCLUDED EVIDENCE OF APPELLANTS’ MOTHER’S CHILDHOOD HISTORY OF INCEST Appellants claim thetrial court committed prejudicialerrorat the penalty phaseby excluding alleged mitigating evidence that their mother was raped by her brothers during her childhood. Appellants ask this Court to reverse the death judgment, arguing that exclusionofthis evidence deprived them oftheir rights to due process, presentation of a defense,andto a reliable determination 241 of penalty under the Sixth, Eighth, and Fourteenth Amendments’ (RAOB 384-407; SAOB 492.) Thetrial court properly excluded this evidence from the penalty phase. Maria Self’s childhoodhistory of incest was irrelevant to the penalty determination and improper mitigation evidence. In any event, any error in excluding the proferred evidence was harmless. During Maria Self’s testimony at the penalty phase, appellants sought to elicit evidence that Maria’s brothers Joe and Ernie raped her on multiple occasions betweenhersix andthirteenth years. The prosecution objected to the evidence asirrelevant and moreprejudicial than probative under Evidence Code section 352. Appellants argued the evidence wasrelevantto: (1) give the jury a “better understanding ofwho she is and whysheis doing certain thingsto her own sons”; (2) support her credibility and rebut an anticipated prosecutorial argumentthat the abuse and neglect to whichshetestified was exaggerated; and (3) allow the jury to know Marialeft her children in the care ofuncles she knew to be violent. (52 RT 7730-7735.) Thetrial court ruled the evidence ofthe childhood rapes was not relevant or a proper matter for mitigation. Thetrial court reasoned that the reasons 75. Appellants waived their federal and state constitutional claims pursuantto the United States and California Constitutions because they failed to raise them attrial. (People v. Sanders (1995) 11 Cal.4th at 475, 510,fn.3; People v. Davis (1995) 10 Cal.4th 463, 501, fn. 1; People y. Price (1991) 1 Cal.4th 324, 430 [Defendant may not challenge on appeal the admission of evidence on groundsnot urgedin thetrial court”); People v. Ashmus (1991) 54 Cal.3d 932, 972[the generalruleis that “questions relating to the admissibility of evidence will not be reviewed on appealin the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal”|.) And, “[their] assertion thatthetrial court's ruling would not have beendifferent had defense counsel expresslycited the constitutional provisions is merely speculative.” (People v. Sanders, supra, 11 Cal.4th at p. 51, fn. 3; RAOB 398-399,fn. 238.) In any event, their constitutional claims are premised on the assertion thatthe trial court erred in excludingthe specified evidence and that the error was prejudicial. For the reasons detailed herein, there was no error. Hence the constitutional claims alsofail. 242 behind Maria’s treatment of her sons was notrelevant to the jury’s penalty determination,andfurther, the evidence tended to invoke sympathy for Maria and not for appellants. The trial court believed the evidence was “highly prejudicial,” would confuse and mislead the jury, and excluded it under Evidence Codesection 352. However,the trial court ruled that Maria could testify to her personal observations ofinteractions between appellants and her brothers, as such evidence would be relevant to show whetherappellants were or were not impacted by their uncles. Finally, the trial court offered to reconsiderits ruling if the prosecution opened the door on cross-examination. (52 RT 7735-7736.) Mariatestified she wasafraid ofher brothers, and her sons were exposed to Joe and Ernie on several occasions duringtheir childhood. Shetestified that Joe and Emietold her they threatened her sons, and after that, she never let them see each other again. (52 RT 7730, 7736-7739.) At the penalty phase, a defendant mustbe permitted to offer any relevant potentially mitigating evidence,i.e., evidence relevantto the circumstances of the offense or the defendant's character and record. (Pen Code, § 190.3; Skipper v. South Carolina (1986) 476 U.S.1, 4-8 [106 S.Ct. 1669, 90 L.Ed.2d 1]; Eddings v. Oklahoma (1982) 455 U.S. 104, 112-116 [102 S.Ct. 869, 71 L.Ed.2d 1]; People v. Marlow (2004) 34 Cal.4th 131, 152; In re Gay (1998) 19 Cal.4th 771, 814; People v. Mickey, supra, 54 Cal.3d at p. 612.) However, the rule allowing all relevant mitigating evidence has not " abrogated the California Evidence Code." (People v. Phillips (2000) 22 Cal.4th 226, 238; People v. Edwards, supra, 54 Cal.3d at p. 787.) "As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's right to present a defense." (People v. Prince, supra, 40 Cal.4th at p.1 179; People v. Phillips, supra, 22 Cal.4th at p. 238, quoting People v. Hall (1986) 41 Cal.3d 826, 834.) 243 “Thetrial court determinesrelevancy ofmitigating evidence andretains discretion to exclude evidence whose probative value is substantially outweighed bythe probability that its admission will create substantial danger of confusing the issues or misleading the jury.” (Peoplev. Guerra, supra, 37 Cal.4th at p. 1067; People v. Box, supra, 23 Cal.4th at p. 1153; People v. Karis (1988) 46 Cal.3d 612, 641-642, fn. 21.) On appellate review, a trial court's ruling on the admissibility of evidence will not be disturbed unless the court exercisedits discretion in an arbitrary, capricious or patently absurd mannerthat resulted in a manifest miscarriage of justice. (People v. Guerra, supra, 37 Cal.4th at p. 1113, citing People v. Rodriguez, supra, 20 Cal.4th 1, 9- 10.) In general, while a defendant may offer evidence ofhis upbringing or relationships with family members, sympathy for a defendant’s family members is not a proper matterin mitigation,as it does notrelate to the circumstances of the crime or background ofthe accused. (People v. Demetrulias (2006) 39 Cal.4th 1, 32; People v. Bemore (2000) 22 Cal.4th 809, 856; People v. Ochoa (1998) 19 Cal.4th 353, 456.) Likewise, “the background of the defendant's family is of no consequence in and of itself. That is because under both California law [citation] and the United States Constitution [citation], the determination ofpunishmentin a capital case turns on the defendant's personal moralculpability. It is the ‘defendant's character or record’that ‘the sentencer _.. [may] not be precluded from considering’--nothisfamily's. [Citations.]” (People v. Rowland (2002) 4 Cal.4th 238, 279,original italics.) Appellants claim they should have been permitted to introduce evidence oftheir mother’s rape by her brothers becauseit was probative ofher credibility (i.e., it would explain her abusiveness towardappellants and make her accounts morebelievable), the extent ofher neglectas a parent(i.e., the neglectful act of leaving her children with her abusive brothers), and the nature of the family system in which appellants were raised. (RAOB 393-399.) Put another way, 244 appellants wanted the jury to consider an improper and irrelevant matter in mitigation,i.e., their mother’s backgroundand character in an attemptto create sympathy for her. Admitting the evidence would have confusedthe issues and misled the jury as to whose character and record they were considering - the appellants’ or their family’s. Accordingly,thetrial court’s ruling wascorrect. This Court’s opinion in People v. Holloway (2004) 33 Cal.4th 96, 148- 149, further supports the trial court’s ruling. In that case, the defendant’s mother, Dorothea Holloway,testified she left her parents’ family when she was 17 years old to go with the defendant’s father, Walter Holloway, to Oakland, where defendant wasborn. Defense soughtto ask Dorothea about her parents' reaction to her “going with Walter Holloway,” but the prosecution obj ected on hearsay grounds. Defense counsel represented that Dorothea wouldtestify her parents had disowned her, leaving herto raise her children without any help from an extended family while Walter was “out floundering.” Counsel argued the evidence, offered for the non-hearsay purpose of showing Dorothea's knowledge of her ownsituation, would illuminate defendant's family life as well as his mother's character. Thetrial court observed that the evidence would be viewed as an implied opinion ofDorothea's parents on Walter's character and excluded the offered testimony on the groundsthat the “probative value of [defense counsel's articulated] non-hearsay purpose,ifthere is such a value,... is outweighedby the substantial dangerofprejudice that is going to be misused by the jury.” (/d. at 148.) Reviewing thetrial court’s ruling for an abuse ofdiscretion,this Court found noerror: Though Walter Holloway's deficiencies as a father and role model for defendant were relevant subjects for proof in mitigation, Walter Holloway's characteritself was not at issue. The defensepenalty case, which rested heavily on proof of the deleterious effects of Walter's behavior on defendant, created a substantial dangerthe jury's attention and deliberations would incorrectly focus on Walter's character, a danger 245 the court soughtto reduce by excluding what couldbe taken as opinion on that subject. On the probative value side ofthe scale, the reaction of defendant's maternal grandparents to their daughter's relationship with Walter was of only indirect and remote relevance to defendant's character and experience. Nor wasthe proposed testimony needed in order to illuminate the family environment of defendant's childhood, for Dorothea or other members of defendant's nuclear family could havetestified that she received no emotional or financial support from her parents in raising her family, without elaborating on the causeof this circumstance. The court did not abuse its discretion, much less deprive defendant of his Eighth Amendmentrightto present evidencein mitigation [citation], by excluding this marginally relevant testimony becauseofits potential for prejudice and distraction. (People v. Holloway, supra, 33 Cal.4th at pp. 148-149.) Similarly, in the instant case, Maria Self’s deficiencies as a mother and role model for appellants were relevant subjects for proof in mitigation, but Maria’s own character wasnotat issue. In other words, while Maria’s drug use, psychological problems,and abusiveness were relevant to showthe conditions under which appellants lived as children, the root causes ofMaria’s deficiencies (i.e., her own childhood trauma or background) were irrelevant to the jury’s consideration of appellants’ character and background. As recognizedbythis Court in Holloway,the admission ofthis type of evidence creates a substantial danger the jury's attention and deliberations will incorrectly focus on the family’s character and not the defendant’s character. Further, just like in Holloway, Maria’s proposed testimony was not necessary to illuminate the family environment of appellants’ childhood, as Maria testified she was afraid of her brothers, her brothers threatened her children, and she did not want her brothersto interact with her sons. She also testified to her psychological issues. (52 RT 7730, 7736-7739, 7703, 7711, 7751.) Other membersofappellants’ family testified that Maria’s family was violent and that Maria had psychological problems. (52 RT 7788, 7843-7845, 246 53 RT 7899-7904.) And there was vast amounts of testimony recounting Maria’s neglectful parenting. There wasno needto elaborate on the bases for her psychological problems or neglect of her children, considering the substantial danger of confusing the issues, misleading the jury, and injecting inappropriate sympathy for thé defendant’s family. Appellants arguethat the “history of family members” is a long-accepted matter ofmitigation, and cite to several cases in support ofthis notion. (RAOB 395-397.) However, most of the cases cited by appellants do not involve an actual holding orfinding that such evidence is admissible; they are simply cases where such evidence was admitted at trial without objection or with no review on appeal. (RAOB 395-397, citing People v. Michaels (2002) 28 Cal.4th 486, 506; People v. Rowland, supra, 4 CalAth at p. 255; People v. Wharton (1991) 53 Cal.3d 522, 545.) Thefact that such evidence has been admitted in other cases does not makethe trial court’s ruling in appellants’ case incorrect or negate the clear precedent supporting it. (See People v. Holloway, supra, 33 Cal.4th at pp. 148-149; People v. Rowland, supra, 4 Cal.Ath at p. 279.) Further, many ofthe cases involve evidence of the defendant’s parents’ own alcohol abuse, which is obviously relevantto the living conditions of the defendants duringtheir formative years. (RAOB 395-396,citing Wigginsv. Smith (2003) 539 US. 510 [123 S.Ct. 2527, 156 L.Ed.2d 471; People v. Michaels, supra, 28 Cal.4th at p. 506.) In contrast, the parents’ upbringing with their own alcoholic parents or siblings,or other childhood trauma, would generally not be relevant. In sum,the proferred evidence of Maria’s own childhood trauma was not relevant, created a substantial danger of confusing the issues, and would haveinjected inappropriate sympathy for the defendant’s family. The trial court properly excluded the evidence. Assuming arguendothetrial court erred in its evidentiary ruling, there was no reasonable possibility that the jury would have returned a different 247 sentence had the evidence been admitted. (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1058; People v. Jones, supra, 29 Cal.4th at p. 1264,fn. 11; People v. Jackson, supra, 13 Cal.4th at p. 1164.) As previously explained,the jury received ample information about appellants’ dysfunctional childhood, from Maria and several other family members. Maria and other family members explained in detail the extent of Maria’s parental neglect and abuse, and the jury knew Maria wasafraid of her brothers butstill chose to leave appellants in their care. Furthermore, Maria’s accounts ofher parental neglect were supported mostly by the consistent accounts.of other family members and appellants’ brother Anthony. Her ownassertions about her own childhood trauma would not have madehertestimony any morecredible. In light of the evidencepresentedto the jury and the weakness of any probative value ofthe proferred evidence,there is no reasonable possibility that the jury would have returned a different sentence even had thetrial court ruled in appellants’ favor. Therefore, any error was harmless. XVI. THE PROSECUTORDID NOT COMMIT MISCONDUCT IN ARGUING APPELLANTS’ POTENTIAL FOR FUTURE VIOLENT CONDUCT Appellants allege the prosecutor committed misconduct by arguing appellants’ future dangerousness during closing argument,in violation oftheir state and federal rights to due process anda reliable penalty determination. (RAOB 408-421; SAOB 492.) Appellants contend that because future dangerousnessis notlisted as a statutory aggravating circumstance under Penal Codesection 190.3, the prosecutor erred when he used evidenceofappellants’ 248 prior violent conduct to argue that they had the potential for future violent conduct. (RAOB 410-417; SAOB 492.) Appellants waived their claim of error, and in any event, no misconduct occurred. This Court has consistently permitted prosecutorial argument regarding a defendant's potential for future violence when,as here,it is based on evidence ofthe defendant's past conduct. During his penalty phase argument, the prosecutor recounted appellants’ past criminal conduct, including their violenceinjail and attempts to escape. The prosecutor argued Romero’s past conduct showedheis “not done hurting people,” and that by being given life without parole, Romero would have constant contact with prison personneland inmatesas his potential victims. (54 RT 8026-8030.) Without objection, the prosecutorstated: Look at how heactedin the jail when he had this trial pending and he had somethingtolose. Howis hegoingto act whenhehasnothingleft to lose, when he has got LWOPandthey can’t do anything else to him? It’s an American Express card for violence. ... And what we know abouthim is that he likes to hurt people. The best predictor of the future is the past. He has 30, 40, 50 years of victims ahead ofhim if he has an LWOP ... He will hurt people in the future. ... He has no conscience. He can’t be fixed. You can’t transplant a conscience into somebody. If there was going to be a change in him, you wouldthink that it would have occurredafter he gotarrested and realized, “Oh my gosh.” But his behavior has continued, and there is every reason to believe it will continue. (54 RT 8028-8029.) The prosecutor madeessentially the same remarks to Self’s jury, also without objection. (54 RT 8112-8116.) First, by failing to object at trial, appellants waivedtheir claim of error regarding the prosecutor’s argument on future dangerousness. (People v. 249 Zambrano, supra, 41 Cal.4th at p. 1082; People v. Davenport, supra, 11 Cal.4th 1171, 1223.) Second,similar claims have been considered andrejected by this Court. Open,far-ranging, and colorful argumentat the penalty phaseis permissible as longasit is based upon admissible evidenceor inferences drawn from that evidence. (See People v. Zambrano, supra, 41 Cal.4th 1082 at p. 1179; People v. Bell (1989) 49 Cal.3d 502, 549; People v. Davenport, supra, 41 Cal.3d at p. 247.) Although “the prosecutor may not present expert evidence of future dangerousness as an aggravating factor, .. . he may argue from the defendant's past conduct,as indicated in the record,that the defendant will be a dangerin prison.” (People v. Zambrano,supra, 41 Cal.4th at p. 1179; People v. Boyette, supra, 29 Cal.4th at p. 381 [also noting that future dangerousness is not barred by the United States Constitution (Barefootv. Estelle (1983) 463 U.S.880, 896-903 [103 S.Ct. 3383, 77 L.Ed.2d 1090]) and therefore summarily rejecting defendant's claimsthat the prosecutor's argument denied him dueprocessorhisrightto a reliable penalty determination underthe Eighth Amendmentto the United States Constitution]; People v. Michaels, supra, 28 Cal.4th 486, 540-541.) In People v. Michaels, supra, 28 Cal.4th 486, 540-541, this Court, in rejecting the exact contention presentedin the instantcase, stated: Defendantcontends that because future dangerousnessis nota listed aggravating factor, the prosecutor can arguethat point only to rebut defense argumentor evidence. We disagree. This court has “repeatedly declined to find error or misconduct where argument concerning a defendant's future dangerousnessin custody is based on evidenceofhis past violent crimes admitted under one of the specific aggravating categories of section 190.3.” (People v. Ray (1996) 13 Cal.4th 313, 353.) Likewise, in People v. Champion, supra, 9 Cal.4th atp. 879 a case in which the defendant introduced no penalty phase evidence, we said: “Although wehaveheld that at the penalty phase of a capital case the prosecutor may notintroduce expert testimony forecasting that, if sentenced to life without the possibility of parole, a defendant will commitviolentacts in prison (People v. Murtishaw (1981) 29 Cal. 3d 733, 779), we have neverheld thatin closing argument a prosecutor may 250 not commentonthe possibility that if the defendant is not executed he or she will remain a dangerto others. Rather, we have concludedthat the prosecutor may make such comments when they are supported by the evidence. Despite the clear rejection oftheir position in Michaels, appellants argue that this Court “never actually addressed the contention that future dangerousness is not an authorized circumstance in aggravation.” (RAOB 411; SAOB 492.) This is untrue. The Court’s language clearly addressed this contention. Michaels explicitly held that where there is evidence ofprior violent crimes(i.e., properly admitted evidence ofan authorized circumstance in aggravation under Penal Code section 190.3), a prosecutor may argue that this evidence showsthe defendantwill remain a danger to others if not given the death penalty. In other words, Michaels stands for the unsurprising proposition that the prosecution may make reasonable inferences from properly admitted evidence to argue for imposition of the death penalty. Here, there was ample evidence of appellants’ violent past, including shank possessions, assaults on fellow inmates, and escape attempts while incarcerated awaitingtrial, and all of this evidence was properly admitted as aggravating circumstances under Penal Codesection 190.3. The prosecutor asked the jury to infer from appellants’ numerouscrimesofviolencethat they were inherently dangerousand unlikely to changeifincarcerated forthe rest of their natural lives. In other words, the prosecutorclearly was arguing on the basis of properly admitted aggravating evidence that appellants deserved the death penalty underthe statutory scheme. (See People v. Millwee (1998) 18 Cal.4th 96, 153; People v. Ray, supra, 13 Cal.4th at p. 353; People v. Pinholster, supra, 1 Cal.4th at p. 865.) Thus, the prosecutor’s argument regarding appellants’ future dangerousness, based onthis history of violence 251 and properly admitted evidence in aggravation, was not misconduct. (See People v. Welch (1999) 20 Cal.4th 701, 761.) XVI. THE TRIAL COURT PROPERLY REFUSED TO INSTRUCT THE JURIES WITH APPELLANTS’ PROPOSED PENALTY PHASE INSTRUCTIONS Appellants claim thetrial court erred whenit failed to instruct the jury with special pinpointinstructions that would have told the jury: (1) it need not unanimously agree on any matter offered in mitigation (RAOB 432-438); (2) victim impact evidence should be viewed with caution (RAOB 287-300, 596; SAOB 383-392, 492); and (3) an accomplice’s (i.e., Munoz’s) sentence could be a basis for leniency (RAOB 439-451; SAOB 492). Appellants assert that these alleged errors were prejudicial and violated their state and federal constitutional rights. (RAOB 287-300, 432-451; SAOB 492.) Appellants are incorrect. First, while Self requested andthe trial court read his jury a non- unanimity instruction on mitigation, Romerofailed to request a non-unanimity instruction on mitigation evidence and thus has waivedanyclaim in that regard; further, such an instruction was unnecessary. Second,the trial court properly declined the other proposed instructionsas either incorrect statements of the law, argumentative, or duplicative. While both appellants requested pinpoint instructions on the use of victim impact evidence and Munoz’s sentence asa basis for leniency (9 CT 2016, 2020, 2086; 53 RT 7975-7979, 7983-7988), Romero never requested a non-unanimity instruction for mitigation evidence.” Self requested such an 76. Although Romerorequestedan instructionreiterating thejury’s duty to “individually decide the case,” Romero neverspecifically requested a non- unanimity instruction with regard to mitigation evidence. (9 CT 2015; 53 RT 7974, 7994-7995.) To the extent Romero arguesthetrial court erredin failing 252 instruction, and it was readbythetrial court to his jury. (9 CT 1991, 2059; 53 RT 7994-7995; 54 RT 8065-8066, 8152.) Thetrial court refused to give the requested limiting instruction on victim impact evidence because it was an inaccurate statement of the law, misleading, argumentative, and otherwise duplicated other instructions. (53 RT 7975-7979.) Thetrial court refused to give the requested pinpoint instruction on the use of accomplice testimony as a basis for leniency because it was an incorrect statement of the law and an impropersubjectfor the jury to considerinits deliberations. The court further instructed the defense not to make such an argumentduringclosing statements. (53 RT 7983-7988.) This Court has explained: [T]he standard CALJIC penalty phase instructions "are adequate to inform thejurorsoftheir sentencing responsibilities in compliance with federal andstate constitutional standards." [Citation.] Moreover, the generalruleis that a trial court may refuse a proffered instructionifit is an incorrect statement of law, is argumentative, or is duplicative. [Citation.] Instructions should also be refusedifthey might confuse the jury. [Citation.] (People v. Gurule, supra, 28 Cal.4th at p. 557; accord People v. Cook (2007) 40 Cal.4th 1334, 1362.) "Althoughinstructions 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. 1083, original italics omitted.) to give his proposed “Individual Juror Determination” instruction, this argument mustalso fail. (RAOB 434.) The “Individual Juror Determination” instruction crafted by Romerosimply duplicated the language already given to the jury in CALJIC No. 17.40 [Individual Opinion Required - Duty to Deliberate], which states, “The People and the defendantare entitled to the individual opinion of each juror,” and “Each of you must decide the case for yourself.” (9 CT 2008; 54 RT 8070.) Because Romero’s proposedinstruction was duplicative ofthe standard instructions, the trial court properly refused the proposedinstruction. (People v. Gurule (2002) 28 Cal.4th 557, 659.) 253 A. Romero Never Requested A Non-unanimity Instruction For Mitigating Factors, And In Any Event, No Such Instruction Was Necessary This Court should reject Romero’s claim thatthetrial court erred when it failed to instruct the jury with a non-unanimity instruction on mitigating evidence. (RAOB 432-438.) Romero argues that giving a non-unanimity instruction with regard to unadjudicated offenses (9 CT 1991; 54 RT 8065- 8066) but not giving a non-unanimity instruction with regard to mitigation evidence was “unfairly one-sided,” unconstitutionally implied a need for unanimity on mitigation, and violated his due processrights, rightto trial by a properly instructed jury, and equal protection ofthe laws. (RAOB 432-438.) First and foremost, Romerohasforfeited this claim byfailing to request such an instruction from thetrial court. (People v. Marks (2003) 31 Cal.4th 197, 236-237 [when a defendantbelievesthe standardjury instructions are deficient, he mustrequest amplification; otherwise, he forfeits his claim on appeal People v. Arias, supra, 13 Cal.4th 92, 1]; People v. Coddington, supra, 23 Cal.4th 529, 584; 70-171.) While Self requested a non-unanimity mitigation instruction which wasultimately read to his jury, Romero never requested one andthus he may not now complain on appeal. (9 CT 1991, 2059; 53 RT 7994-7995; 54 RT 8065-8066, 8152.) Second, the trial court was not required to instruct on non-unanimity with regard to mitigation evidence. This Court rejected a challenge similar to Romero’s in People v. Breaux (1991) 1 Cal.4th 281, 314-315 (Breaux). In that case, the defendantclaimedthetrial court improperly rejected his proposedjury instruction that unanimity was not required for consideration of mitigating evidence. (Breaux, supra, 1 Cal.4th at p. 314.) This Court disagreed, explaining: Thereis no indication that the jury was misled in any respect. There was nothing in the instructionsto limit the consideration of mitigating evidence andnothingto suggestthat any particular numberofjurors was 254 required to find a mitigating circumstance. The only requirement of unanimity was for the verdictitself. [Citation .] Theinstructions that were given in this case unmistakablytold the jury that each membermustindividually decide each question involved in the penalty decision. They were told to consider all the evidence, specifically including any circumstance in mitigation offered by defendant. Wefindno errorin the court's refusal to give defendant's proposedinstruction. (Id. at p. 315, italics in original.) This Court has repeatedly affirmed its decision in Breaux and should continue to do so here. (People v. Cook, supra, AO Cal.4th at p. 1365; People v. Smith (2003) 30 Cal.4th 581, 639.) Here, as in Breaux, there was nothing in the given instructions that limited the jurors' consideration of mitigating evidence, misled the jurors, or suggested that "any particular number of jurors was required to find a mitigating circumstance." (See Breaux, supra, | Cal. 4th at p. 31 5.) Similar to the instructions in Breaux, the jurors were instructed with CALJIC No.8.88 (1989 rev.), which told them that "[i]n order to make a determination as to the penalty, all twelve jurors must agree," but in order "[t]o return a judgmentof death, each ofyou must be persuaded that the aggravating circumstancesare so substantial in comparison with the mitigating circumstancesthat it warrants death instead oflife without parole." (9 CT 2011-2012,italics added; 54 RT 8072-8073.) Further, the trial court read the jury several defense-requested instructions regarding mitigation that furtherclarified the role of mitigating evidence, suchas, “/a] juror may find that a mitigating circumstance exists if there is any evidenceto support it no matter how weakthe evidenceis” and “fa] juror is permitted to use mercy, sympathy and/or sentiment in deciding what weight to give each mitigating factor.” (9 CT 1993-1998; 54 RT 8066- 8067.) These instructions reiterated that it was up to each individualjuror to decide the weight and relevancy of mitigating factors. Accordingly, the jury 255 was adequately instructed onits duties andthe trial court was not required to give a sua sponte non-unanimity instruction on mitigation evidence. B. The Trial Court Properly Refused Appellants’ Cautionary And Limiting Instruction Regarding Victim Impact Evidence The trial court gave the jury standard penalty phase jury instructions, including CALJIC No.8.84 [Penalty Trial-Introductory], CALJIC No.8.84.1 (Duty ofJury-Penalty Proceeding], CALJIC No.8.85 [Penalty Trial-Factors for Consideration], and CALJIC No.8.88 [Penalty Trial-ConcludingInstruction]. (9 CT 1964-1965, 1989-1990, 2011-2012, 2033-2034, 2057-2058, 2081-2082; 54 RT 8052-8053, 8063-8065, 8071-8073, 8136, 8145-8147, 8158-8160.) The trial court declined appellants’ requests to give the jury the following special instruction: Evidence has been introduced for the purpose of showing the specific harm caused by the defendant's crime. Such evidence, if believed, was not received and maynotbe considered by you to divert your attention from your proper role of deciding whether defendant should live or die. You mustface this obligation soberly andrationally, and you may not impostthe ultimate sanctionasa result ofan irrational, purely subjective response to emotional evidence and argument. Onthe other hand, evidence and argument on emotional though relevant subjects may providelegitimate reasons to sway the jury to show mercy. (9 CT 2016, 2086; 53 RT 7975-7979.) Thetrial court rejected the proposed instruction as argumentative, misleading, an inaccurate statementofthe law, and otherwise covered byotherinstructions. (53 RT 7979.) Appellants contendthe trial court had a duty to provide a limiting instruction that explained to the jurors how they were to consider the victim-impact evidence and cautioned them not to base their decision on emotion. Appellants contend that the failure to provide such an instruction prejudicially violated their rights to a properly-instructed jury, due process of | _ 256 law, equal protection, and a fair and reliable penalty determination. (RAOB 287-300; SAOB 383-392.) Appellants’ contentions are without merit. As this Court made clear, "the standard CALJIC penalty phase instructions ‘are adequate to inform thejurors oftheir sentencing responsibilitie s in compliance with federal and state constitutional standards." (People v. Gurule, supra, 28 Cal.4th at p. 659.) In Peoplev. Ashmus, supra, 54 Cal.3d 932, 993, fin. 20, this Court held that the trial court has no duty to give a n instruction on the limited use of victim impact evidence. In that case, the defendant argued the trial court erred in failing to instruct the jury that in determining the penalty they could not consider “the victim's personal characteristics, the emotional impact ofthe crime on the victim's family, and the opinions of family members about the crime and the criminal -- or more specifically, that they should not take into account any evidence or argument bearing on these topics.” (Id. at pp. 991-992,fn. 20.) This Court rejected the claim because there was no requirementundereitherstate or federal law to give such an instruction,and further, the trial court instructed the jury that“the listed aggravating circumstances -- which did not include the foregoing matters -- were exclusive." (/bid.) Later, in People v. Ochoa, supra, 26 Cal.4th 398, this Court refused to find error in thetrial court's refusal to give the defendant's special instruction concerning the evaluation of the evidence of harm caused by his crimes. The proposedinstruction in Ochoa, which was essentially identical to appellants’ proposed instruction in this case, read as follows: | Evidence has been introduced for the purpose of showing the specific harm caused by the Defendant's crimes. Such evidence was not received and maynot be consideredby youto divert yourattention from your properrole of deciding whether the Defendant should live or die. You mustface this obligation soberly and rationally, and you may not impose the ultimate sanction as a result of an irrational, subjective response to emotional evidence and argument. On the other hand, 257 evidence and argument on emotion though relevant subjects may provide legitimate reasonsfor the Jury to show mercyto the Defendant. (People v. Ochoa, supra, 26 Cal.4th at p. 455.) This Court concludedthat the trial court properly refused the instruction, since "[t]he proposedinstruction would not have provided the jury with any informationit had not otherwise learned from CALJIC No. 8.84.1[.]" ([bid.; see also People v. Harris, supra, 37 Cal.4th 310, 358-359 [rejecting same proposedinstruction as confusing].) And, in People v. Brown (2003) 31 Cal.4th 518, 573, this Court rejected the claim that the trial court erred in not instructing the jury on how to consider victim impact evidence, where, as here, the court instructed the jury with standard CALJIC No.8.85. Finally, this Court in People v. Harris, supra, 37 Cal.4th 310, 358-359,labeled an instruction essentially the same as appellants’ proposedinstruction “confusing” and “unclear.” Given the foregoing case law, appellants’ claims must fail. First, as stated in Ashmus, there is no state or federal requirement to give a limiting instruction on victim impact evidence. Second,giventhat appellants’ requested instruction wasnearly identical to the one this Court rejected in Ochoa (9 CT 2016, 2086), the trial court properly denied it. Third, to the extent appellants contendthatthe trial court should have fashioned its own instruction cautioning jurors not to base their decision on emotion and instructing them on how to consider victim impact evidence, their claim fails for the same reason,i.e., CALJIC Nos. 8.84.1 and 8.85 adequately addressed the matter. CALJIC No. 8.85 informs the jurors as to the appropriate aggravating factors they may considerin their deliberations, and CALJIC No.8.84.1 states, in pertinentpart: "You must neither be influenced by bias nor prejudice against the defendant, nor swayed by public opinion or public feeling.” (9 CT 1965, 1989-1990, 2034, 2057-2058; 54 RT 8053, 8063-8065, 8136, 8145-8147.) 258 In sum,a longline of precedentdictates rejection of appellants’ claim, and they have provided no reason forthis Court to revisit the issue. The juries in the instant case were properly instructed. C. The Trial Court Properly Refused Appellants’ Proposed Instruction Regarding The Use OfAn Accomplice’s Sentence As A Basis For Leniency, And Properly Restricted Argument On This Subject Appellants claim thatthe trial court erred whenit refused their proposed _ instruction on the use of accomplicetestimonyas a basis for leniency and then restricted argumenton this subject. (RAOB 439-451; SAOB 492.) Thetrial court properly found that appellants’ proposed instruction was an incorrect statement of the law and an improper subject for the jury to considerin its deliberations. Likewise, the trial court properly ordered the defense not to make such an argumentduring closing statements. (8 CT 1944C-1944D; 9 CT 2020; 53 RT 7983-7988.) Appellants requested that the jury be instructed with the following: “You may consider the fact that defendant’s accomplice[s] received a more lenient sentence as a mitigating factor.” (8 CT 1944C-1944D; 9 CT 2020.) Time and time again, this Court has found the relative culpability of accomplices to be an improper subject for the jury to consider in its deliberations. Indeed, this Court has “repeatedly rejected” appellants’ claim and the authorities upon whichit rests. (People v. Bemore, supra, 22 Cal.4th at p. 809; People v. Hines (1997) 15 Cal.4th 997, 1068; People v. Jackson, supra, 13 Cal.4th at p. 1164; People v. Rodrigues, supra, 8 Cal.4th 1060,1 188-1189; People v. Mincey (1992) 2 Cal.4th 408, 479-480; People v. Danielson (1992) 3 Cal.4th 691, 718; People v. Morris, supra, 53 Cal.3dat p. 152 [trial court not obligated to instruct that accomplice’s plea bargain constitutes mitigation].) As stated by this Court in People v. Bemore, supra, “[t}he sentence received by an 259 accomplice is not constitutionally or statutorily relevant as a factor in mitigation. Such information doesnotbear on the circumstancesofthe capital crime or on the defendant's own character and record.” (People v. Bemore, supra, 22 Cal.4th at p. 858.) Despite appellants’ argument to the contrary, the Supreme Court’s opinion in Parker v. Dugger (1991) 498 U.S.308 [ 111 S.Ct. 731, 112 L.Ed.2d 812], does not changethisresult. Parker did not hold that information about an accomplice's sentence must be introduced in mitigation, or that a comparison of sentences meted outfor the capital crime is necessary. “The Parker court merely concluded a Floridatrial judge, in sentencing the defendantto death, had in fact considered the nonstatutory mitigating evidence of the accomplice's sentence, as under Florida law he wasentitled to do. [Citation.] Parker does not state or imply the Florida rule is constitutionally required, and California law is to the contrary." [Citations.] (People v. Bemore, supra, 22 Cal.4th at p. 858; see also People v. Rodrigues, supra,,8 Cal.4th at pp. 1188-1189; People v. Mincey, supra, 2 Cal.4th at pp. 479-480.) Appellants ask this Court to reconsiderthis long line of precedent, but offer no persuasive reasons for doing so. Accordingly,in light ofthe foregoing, the trial court clearly madethe correct ruling in decliningto instructthe jury regarding Munoz’s sentenceas a basis for leniency and likewise curtailing argument on the subject. D. Assuming Arguendo TheTrial Court Erroneously Refused Any Of Appellants’ Proposed Instructions, The Alleged Error Was Harmless Because the Constitution does not require instruction with appellants’ proposedinstructions, this Court should apply state harmless error analysis in determining the effect of their omission. In other words, this Court should affirm the death verdicts unless appellants demonstrate a reasonable possibility 260 that the foregoing instruction affected the verdicts. (People v. Rogers, supra, 39 Cal.4th at pp. 826, 901; People v. Brown (1988) 46 Cal.3d 432, 446-447.) The “reasonablepossibility” standard is “‘the same, in substance and effect, as the harmless beyond a reasonable doubt standard of Chapmanv. California, supra, 386 U.S.at p. 18].’” (People v. Rogers, supra, 39 Cal.4th at p. 901, quoting People v. Jones, supra, 29 Cal.4th at pp. 1229, 1264, fn. 11, italics omitted.) Appellants have not made this showing, norcan they. Appellants’ death sentences are attributable to the circumstances in aggravation, not the absence of the defense requested instruction. The circumstancesof the crimes were uniformly horrible, involving unprovoked, brutal attacks by appellants on several unsuspecting, innocent victims. Appellants continued their violence in jail, assaulting fellow prisoners, fashioning shanks out of the most basic items, and planning an escape. Appellants most dramatically displayed their utter disregard for human life when, after shooting Aragon nearly a dozen times and leaving a two-inch gaping woundin his neck,actually had an appetite and sat down for lunchat Coco’s restaurant. While appellants presented evidence of childhood neglect and abuseearly in their lives, the evidence also showed:they had the benefit of loving grandparents and other extended family members even during the worst oftimes; they hadthe influence ofa devotedstepfather andstable family life by the time they were five (Self) and eight (Romero)years old; their mother taught them right from wrong andthe value of manners and a good education; they were intelligent and did well in school when they madethe effort; and their brothers who were raised in the same household achieved success in the military and rejected the criminal path chosen by appellants. Onthis record, no reasonablepossibility exists that appellants would have received anything other than a death sentence absentanyallegedinstructional error. (People v. Rogers, supra, 39 Cal.4th a p. 901.) 261 XVIII THIS COURT HAS CONSIDERED AND REJECTED APPELLANTS’ VARIOUS CHALLENGES TO THE CONSTITUTIONALITY OF CALIFORNIA’S DEATH PENALTY LAW AND IMPLEMENTING INSTRUCTIONS Appellants challenge the constitutionality of California’s death penalty law and implementinginstructions ona variety of grounds. (RAOB 452-516, 555-595; SAOB 393-486.) These same claims have been presented to, and rejected by, this Court. Appellants fail to raise anything new or significant which would causethis Court to depart from its earlier holdings.. (People v. Schmeck (2005) 37 Cal.4th 240, 303-304; People v. Welch, supra, 20 Cal.4th 701, 771-772; People v. Fairbank (1997) 16 Cal.4th 1223, 1255-1256.) Accordingly, this Court should reject appellants’ challenges to California’s death penalty statute and the standardjury instructions implementing the statute. Appellants contendthat factor (a), the circumstances of the crime, is overly broad, permitting contradictory and generic facts to be found aggravating. (RAOB 580-582; SAOB 405-415.) Factor (a) is not unconstitutionally overbroad. (People v. Morrison (2004) 34 Cal.4th 698, 729, citing People v. Lewis, supra, 26 Cal.4th at pp. 334, 394;see also Tuilaepa v. California (1994) 512 U.S.967 [114 S.Ct. 2630, 129 L.Ed.2d 750].) Further, this Court has consistently held that CALJIC No.8.85 is not unconstitutionally vague and thatit does notallow the penalty process to proceed arbitrarily or capriciously. (People v. Perry (2006) 38 Cal.4th 302,3 19; People v. Farnam (2002) 28 Cal.4th107, 191-192; People v. Lucero (2000) 23 Cal. Ath 692, 728; People v. Earp (1999) 20 Cal.4th 826, 899.) Likewise, this Court has rejected Romero’s claim regardingthe deletion of inapplicable factors in CALJIC No. 8.85. (RAOB 582-586.) CALJIC No.8.85 is not unconstitutional for failing to delete inapplicable factors or for failing to inform the jury that the absence 262 of a mitigating factor cannot be considered an aggravating factor. (Peoplev. Perry, supra, 38 Cal.4th at p. 319; People v. Moon,supra, 37 Cal.4th at pp.1, 42.) Appellants claim that reliance on previously unadjudicated criminal activity under Penal Code section 190.3, factor (b), both as written and as applied in this case, violates the constitution. (SAOB 415-424, 492; RAOB 452-516, 596.) This Court has repeatedly upheld the admission of unadjudicated criminalactivity as evidence in aggravation. (People v. Hinton, supra, 37 Cal.4th at p. 839; People v. Dunkle (2005) 36 Cal.4th 940; People v. Brown (2004) 33 Cal.4th 383, 402; People v. Avena, supra, 13 Cal.4th at p. 394, 428; People v. Hawthorne (1992) 4 Cal.4th 43, 76-77; People v. Balderas (1985) 41 Cal.3d 144, 201; see also Tuilatepav. California, supra, 512 US.at p. 967.) There is no requirementthat the jury unanimously agree on the unadjudicated criminal activity (People v. Carpenter (1999) 21 Cal.4th 1016, 1061) and contrary to appellants’ arguments (SAOB 420; RAOB 505-508), Ringv. Arizona (2002) 536 U.S. 584 [122 S. Ct. 2428, 153 L. Ed.2d 556] and its progeny donotaffect this holding because Ring “[has] no application to the penalty phase proceduresofthis state.” (People v. Martinez (2003) 31 Cal.4th 673, 700; People v. Cox (2003) 30 Cal.4th 916, 971-972.) Appellants also claim that the factor (b) implementing instruction, CALJIC No. 8.87, improperly told the jury that each listed instance of unadjudicated criminal activity actually involved force or violence, thus removing the issue from the jury's consideration and constituting a directed verdict on an essential element of the factor (b) finding. (RAOB 452-476; SAOB 492: 54 RT 8065, 8068, 8151, 8154.) Again,this Court has repeatedly rejected appellants’ claim, and should continue to do so in the instant case. (People v. Gray (2005) 37 Cal.4th 168, 235; People v. Monterroso (2004) 34 Cal.4th 743, 793; People v. Nakahara (2003) 30 Cal.4th 705, 720; People v. 263 Prieto (2003) 30 Cal.4th 226, 265; People v. Ochoa, supra, 26 Cal.4th at pp. 398, 452-454.) This Court has also rejected appellants’ labored critique ofCALJIC No. 8.87's phraseology. (RAOB 476-490; SAOB 492.) The defendant in People v. Prieto, supra, 30 Cal.4th 262, mounted a similar attack against the instruction’s use ofthe phrase “express or implied use of force or violence o r the threat of force or violence.” (People v. Prieto, supra, 30 Cal.4th at p. 265.) This Court held: “Although section 190.3, factor (b) usesa slightly different phraseology - “use or attempted use of force or violence or the express or implied threat to use force or violence” - we see no practical difference between the instruction’s and statute’s language. Indeed,the instruction’s language is arguably narrowerthan thestatute’s language because it may not encompassthe attempted use of force or violence. In any event, we do not see how the jury could have misconstruedthis instructional language to defendant’s detriment.” (Ibid.) Similarly, the defendantin People v. Martinez, supra, 31 Cal.4th at p. 673, 693, attacked the “implied threat” language, arguing that “no ‘ “implied threat” can exist unless the defendant has committed an act or spoken words directed at an individual or group ofpersons whocaninferthat the defendant has made a threat. In other words, the term “implied threat” necessarily connotes some form of communication. .. .”” This Court found that defendant’s argument “meritless.” (People v. Martinez, supra, 31 Cal.4th at 77. Appellants requested a pinpoint instruction further defining the scope of the jury’s consideration of factor (b) evidence (9 CT 2024; 53 RT 7990-7991), butthe trial court rejected the pinpoint instruction as duplicative of CALJIC No. 8.87. (53 RT 7990-7991.) Because this Court has repeatedly found that CALJIC No. 8.87 adequately informs the jury, the trial court properly refused to give appellants’ duplicative instructionto the jury. (People v. Gurule, supra, 28 Cal.4th at pp. 557, 659.) 264 p. 693.) Based onthese decisions, this Court should also reject appellants’ challenges to CALJIC No.8.87.4 With regard to instruction on mitigation evidence, appellants claim the use ofrestrictive adjectives in several of the mitigation factors imposed an unconstitutional barrier to the jury’s consideration of relevant mitigating evidence. (RAOB 586; SAOB 424-425.) This same complaint has been repeatedly rejected by this Court. (People v. Moon,supra, 37 Cal.4th at p. 42; People vy. Dunkle, supra, 36 Cal.4th at p. 939, citing People v. Monterroso (2004) 34 Cal.4th 743, 796.) Appellants also contendthe trial court failed to advise the jury that mitigating factors could only be considered mitigating and therefore violated the constitution. (SAOB 492; RAOB 580.) This Court has repeatedly found noerrorin this regard. (People v. Moon,supra, 37 Cal4th at p. 42, citing People v. Morrison, supra, 34 Cal.4th at p. 730.) Moreover, the trial court here instructed the jury that the absence of any mitigating circumstance could not be considered aggravating. (9 CT 1996, 2064; 54 RT 8067, 8153.) Appellants assert that thetrial court’s instructionsdefining the scope of the jury’s sentencing discretion andthe natureofits deliberative process,as set forth in CALJIC No. 8.88, violated their constitutional nights in several respects. (RAOB 572-579; SAOB 467-479.) Specifically, they claim the instruction: (1) used the phrase “so substantial” which is an impermissibly vague term that failed to provide the jury with adequate guidance and discretion; (2) failed to inform the jurors that the central determination is whether the death penalty is the appropriate punishment, not simply an authorized one; and (3) failed to inform the jurors that they were required to 78. Respondent addresses Romero’s claimsrelating to the reasonable doubt definition (RAOB 510-512) and admissibility of particular aggravating circumstances (RAOB 342-383, 517-519) in Arguments VII and XIIl, respectively. 265 imposelife withoutthe possibility of parole if they determinedthat mitigat ion outweighed aggravation. Appellants’ claims should be rejected as this Cour t has previously rejected identical claims concerning this jury instruction. This Court has found CALJIC No.8.88 givesthe jury adequate instruction on how to return a life sentence (People v. Taylor, supra, 26 Cal.4th 1155, 1181 ; People v. Kipp, supra, 26 Cal.4th at p. 1138; People v. Frye, supra, 18 Cal.4t h at pp. 1023-1024) and the standard instruction has been consistently upheld. (People v. Smith, supra, 35 Cal.4th at p. 370, People v. Medina, supra, 11 Cal.4th at pp. 781-782; People v. Duncan (1991) 53 Cal.3d 955, 978.) CALJIC No. 8.88 is not unconstitutionally vague for using the phase “so substantial” and adequately guidesthe jury’s sentencing discretion. (People v. Moon,supra, 37 Cal4th at p. 43; People v. Smith, supra, 35 Cal.4th at p. 369; People v. Young (2005) 34 Cal.4th 1149, 1227; People v. Carter (2003) 30 Cal.4" 1166, 1226.) CALJIC No.8.88is also not unconstitutionalin using the term “warrants,” as “the instruction clearly admonishes the jury to determine whetherthe balance of aggravation and mitigation makesdeath the appropriate penalty.” (People v. Smith, supra, 35 Cal.4th atp. 370 citing People v. Arias, supra,\3 Cal.4th at p. 171; see also People v. Moon, supra, 37 Cal.4th at p. 43; People v. Boyette, supra, 29 Cal.Ath 381, 465.) Likewise,thetrial court need not expressly instruct the jury that a sentence of life imprisonment without parole is mandatory ifthe aggravating circumstances do not outweighthose in mitigation. (People v. Moon, supra, 37 Cal.4th at p. 43; People v. Kipp, supra, 18 Cal.4th 349, 381; People v. Duncan, supra, 53 Cal. 3d at pp. 955, 978.) The instruction in the instant case was proper. In addition, appellants argue California’s death penalty statute andits implementing jury instructions are constitutionally deficient for failing to require: (1) aggravating factors be proven beyond a reasonable doubt, (2) aggravation be provento outweigh mitigation beyond a reasonable doubt; (3) 266 death be foundto be the appropriate penalty beyond a reasonable doubt; (4) that the jury make those findings unanimously. (RAOB 490-5 10, 558-571; SAOB 431-466.) However, neither jury unanimity nor proof beyond a reasonable doubt apply to those determinations. (People v. Dunkle, supra, 36 Cal.4th at p. 939; People v. Stitely, supra, 35 Cal.4" at p. 573; People v. Panah, supra, 35 Cal.4" 395, 499; People v. Monterroso, supra, 34 Cal.4th 743, 796; Peoplev. Morrison, supra, Cal.4th at p. 730; People v. Welch, supra, 20 Cal.4th 701, 767-768.) Moreover,the decisions in Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] and its progeny, do not change that conclusion. (People v. Stitely, supra, 35 Cal.4th at p. 573 (Blakely,Ring,” and Apprendi “do not require reconsideration or modification of our long- standing conclusionsin this regard”];, Peoplev. Gray, supra, 37 Cal.4th at p. 237; People v. Morrison, supra, 34 Cal.4th at pp. 730-731, People v. Prieto (2003) 30 Cal.4th 226, 262-263, 271-272; People v. Snow (2003) 30 Cal.4th 43, 126, fn. 32; see People v. Smith (2003) 30 Cal.4th 581, 642.) Likewise, because of the individual and normative nature of the jury's sentencing determination, the trial court need not instruct that the prosecution has the burden ofpersuasion onthe issue ofpenalty. (People v. Combs, supra, 34 Cal. 4th at p. 821; People v. Lenard (2004) 32 Cal.4th 1107, 1135-1136, Peoplev. Steele (2002) 27 Cal.4th 1230, 1259; People v. Bemore, supra, 22 Cal.4th at p. 809.) This Court has also repeatedly rejected appellants’ contentions (RAOB 570-571: SAOB 465-466) thatthe trial court was constitutionally required to instruct the jury that there is a presumption favoring a sentenceoflife in prison. (See, e.g., People v. Young, supra, 34 Cal.4th at p. 1149, 1233; People v. 79. Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403}. 80. Ring v. Arizona, supra, 536 U.S. 584. 267 Combs, supra, 34 Cal.4th at p. 868; People v. Pollock (2004) 32 Cal.4th 1153, 1196; People v. Lenart, supra, 32 Cal.4th at p.1137; People v. Kipp (2001) 26 — Cal.4th 1100, 1137; People v. Carpenter (1999) 21 Cal.4th 1016, 1064; People v. Arias, supra, 13 Cal.4th at p. 190.) Because appellants provide no compelling reason for reconsideration,their claims should be rejected. Appellants claim California’s capital sentencing scheme violates the Sixth, Eighth and Fourteenth Amendments to the United States Constitution because it does not require a jury to render written findings as to the aggravating circumstancesit has relied upon, nor doesit require any reasons for the choice of sentence. (RAOB 586-589; SAOB 425-430.) This Court has held, and should continueto hold,that the jury need not make written findings disclosing the reasonsforits penalty determination. (People v. Dunkle, supra, 36 Cal.4th at p. 939; People v. Young, supra, 34 Cal.4th at p. 1149; Peoplev. Maury (2003) 30 Cal.4th 342, 440; People v. Hughes (2002) 27 Cal.4th 287, 405; People v. Welch, supra. 20 Cal.4th at p. 701; People v. Ochoa (1998) 19 Cal.4th 353, 479; People v. Frye, supra, 18 Cal.4th at p. 894.) The above decisionsare consistent with the United States Supreme Court’s pronouncement that the Federal Constitution “does not require that a jury specify the aggravating factors that permit the imposition of capital punishment.” (Clemons v. Mississippi (1990) 494 U.S. 738, 746, 750 [110 S.Ct. 1441, 108 L.Ed.2d 725], citing Hildwin v. Florida (1989) 490 U.S. 638 [109 S.Ct. 2055, 104 L.Ed.2d 728].) Appellants contend lack of intercase proportionality review violates the right to a fair trial, due process, equal protection, and protection from the arbitrary and capricious imposition of capital punishment guaranteed by the Fifth, Eighth, and Fourteenth Amendments. (RAOB 555-557; SAOB 393- 404.) To the contrary, intercase proportionality review is not constitutionally required and this Court has consistently declined to undertake it. (Pulley v. 268 Harris (1984) 465 U.S. 37, 50-54 [104 S.Ct. 871, 79 L.Ed.2d 29] [California’s death penalty statute not rendered unconstitutional by the absence ofa provision for comparative proportionality review]; People v. Dunkle, supra, 36 Cal.4th at p. 940, citing People v. Horning (2004) 34 Cal.4th 871, 913, and Peoplev. Morrison, supra, 34 Cal4th at p. 731.) Nor does equal protection require that capital defendants be afforded the same sentence review afforded other felons underthe determinate sentencing law. (People v. Dunkle, supra, 36 Cal.4th at p. 940; People v. Cox, supra, 53 Cal.3d atp. 618; People v. Allen, supra, 42 Cal.3d at p. 1222.) Appellants further claim California’s death penalty law denies equal protection under the Fourteenth Amendment. (RAOB 588-589; SAOB 428- 430.) Asthis Court has repeatedly held, California’s capital sentencing scheme does not deny equal protection because it uses a different method of determining penalty than is used in non-capital cases. (People v. Elliot (2005) 37 Cal.4th at p. 488; People v. Smith (2005) 35 Cal.4th 334, 374.) Accordingly, appellants’ equal protectionsclaims should be denied. Finally, appellants contend the use of the death penalty violates international law, evolving international norms, and the Eighth Amendment. (RAOB 590-595; SAOB 480-486.) This Court has repeatedly rejected this claim and should continue to do so. (People v. Perry, supra, 38 Cal.4th at p. 322; People v. Dunkle, supra, 36 Cal.Ath at p. 940, citing People v. Brown (2004) 33 Cal.4th 382, 403-404.) Furthermore, for the reasons explained throughout Respondent’s Brief, death is the appropriate punishment for appellants’ murdersof three young men. (See Enmundv. Florida (1982) 458 U.S. 782, 797-801 [102 S.Ct. 3368, 73 L-Ed.2d 1140].) 269 XIX. THERE WAS NO CUMULATIVE ERROR Appellants contendtheirjudgmentsofguilt and sentences of death must be reversed based upon cumulative error. (RAOB 526-536; SAOB 487-492.) While appellants assert numerous guilt- and penalty-phase errors or other “troubling occurrences” (RAOB 532-536, SAOB 489-492), the record demonstratesappellants received a fair trial and there is no basis upon whichto reverse their judgments based on error,individually or cumulatively. Even a capital defendantis entitled to only a fairtrial, not a perfect one. (People v. Stewart (2004) 33 Cal.4th 425, 522; People v. Box, supra, 23 Cal.4th 1153, 1214; see also United States v. Hasting (1983) 461 U.S.499, 508-509 [103 S.Ct. 1974, 76 L.Ed.2d 96] ["[G]iven the myriad safeguards provided to assure a fairtrial, and taking into accountthe reality of the humanfallibility of the participants, there can be no such thing as an error-free, perfect trial, and _.. the Constitution does not guarantee sucha trial."]; Schneble v. Florida (1972) 405 U.S. 427, 432 [92 S.Ct. 1056, 31 L.Ed.2d 340].) Since every claim of error raised by appellants waseithernoterror, invited, forfeited, or harmless, there is no prejudice to appellants, and thus no cumulative effect. (People v. Kipp (2001) 26 Cal.4th 1100, 1141.) With regard to the “troubling occurrences”cited by appellant Romero (RAOB 532-536; SAOB 492), he does nottreat them as assignments oferror and neither should this Court. “It is the duty of the defendants to showerror, and that means defendants are underan affirmative duty in that respect. It is not proper to attemptto shift that burden uponthe court or respondent.” (People v. Goodall, supra, 104 Cal.App.2d 242, 249; People v. Clay, supra, 227 Cal.App.2d at pp. 87, 100.) To this end,“every brief should contain a legal argumentwith citation of authorities on the points made. If noneis furnished on a particular point, the court may treat it as waived, andpassit without 270 consideration. [Citations.]’ [Citations.]” (People v. Stanley, supra, 10 Cal.4th at p. 764; see also People v. Ramirez, supra, 39 Cal.4th at p. 398,fn. 8; Cal. Rules of Court, Rule 8.204(a)(1)(B).) Further, to the extent Ro meo “perfunctorily asserts other claims, without developmentand, in deed, without a clear indication that they are intended to bediscrete contentions, they are not properly made, and [should be] rejected on that basis.” (People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19; see also People v. Smith (2003) 30 Cal.4th 581, 616, fn. 8.) As Romero provideslittle more than perfunctory as sertions and citations to the record for this Court’s consideration, his “tr oubling occurrences”should not be considered claimsof error and should be reject ed. Moreover, even assuming any of Romero’s “troubling occurrences” hav e any validity, they cannot amount to cumulative error. “{A|ny numberof ‘a lmost errors,’ ifnot ‘errors’ cannot constitute error.” (Hammondv. United States (9 th Cir. 1966) 356 F.2d 931, 933; United Statesv. Haili (9th Cir. 1971) 443 F.2d 1295, 1299.) Further, assuming arguendoerror, even viewed cumulatively, it is not reasonably probable that appellants would have received more benefic ial verdicts. (People v. Avila, supra, 38 Cal.4th 491, 615.) Review ofthe record without the speculation or interpretation offered by appellants showsthe evidence against them was formidable and that they were fairly tried a nd convicted. The Constitution requires no more. Accordingly, the judgments and sentences of death should be affirmedintheir entirety. (People v. Cunningham, supra, 25 Cal.4th 926, 1038.) 271 CONCLUSION Based on the foregoing, Respondentrespectfully requests that this Court affirm appellants’ convictions and death sentencesin their entirety. Dated: February 25, 2008 Respectfully submitted, EDMUND G. BROWN JR. Attomey Generalofthe State of California DANE R. GILLETTE Chief Assistant Attorney General GARY W. SCHONS Senior Assistant Attorney General HOLLY D. WILKENS Deputy Attorney General Attorneys for Respondent SB1996XS0009 272 CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S BRIEF uses a 13 point Times New Romanfont and contains 87175 words. Dated: February 25, 2008 Respectfully submitted, EDMUND G. BROWN JR. Attorneys for Respondent DECLARATION OF SERVICE BY U.S. MAIL Case Name: People v. Orlando Gene Romero and ChristopherSelf No.: 8055856 1 declare: I am employed in the Office of the Attorney General, whichis the office of amember ofthe _ California State Bar, at which member's direction this service is made. I am 18 years of age or older andnota party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placedin the internal mail collection system at the Office of the Attorney Generalis deposited with the United States Postal Service that same dayin the ordinary course ofbusiness. On February 26, 2008,I served the attached RESPONDENT'S BRIEF by placing a true copy - thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 110 West A Street, Suite 1100, P.O. Box 85266, San Diego, CA 92186-5266, addressed as follows: The Honorable Rod Pacheco William D. Farber District Attorney Attorney at Law Riverside County District Attorney’s Office P. O. Box 2026 Western Division, Main Office San Rafael, CA 94912-2026 4075 Main Street Counsel for Appellant Christopher Self Riverside, CA 92501 (2 copies) Michael G. Millman Michael P. Goldstein Executive Director Attorney at Law California Appellate Project (SF) Post Office Box 30192 101 SecondStreet, Suite 600 Oakland, CA 94604 San Francisco, CA 94105 Counsel for Appellant Orlando Gene Romero (2 copies) DECLARATION OF SERVICEBY U.S. MAIL - Page 2 The Honorable Robert L. Taylor, Judge Riverside County Superior Court 4100 Main St. Riverside, CA 92501 I declare underpenalty ofperjury underthe lawsofthe State of California th e foregoingis true and correct and that this declaration was executed on February 26, 20 08, at San Diego, California. Terri Garza Soy,wD) ewe Declarant Signature 70135349.wpd
