PEOPLE v. CASE

Respondent’s Brief

Cal.March 20, 2012

‘SUPREME ARTY COURCfat be! Jn the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Vv. CHARLESE. CASE, Defendant and Appellant. CAPITAL CASE Case No. S057156 SUPREME COURT FILED MAR 20 2012 Frederiok K, Onirich Clerk Sacramento County Superior Court Case No. 93F05175 The Honorable Jack Sapunor, Judge RESPONDENT’S BRIEF r iJ ) ti l L: KAMALAD. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General MICHAEL P. FARRELL Senior Assistant Attorney General Eric L. CHRISTOFFERSEN Supervising Deputy Attorney General JENNEVEE H. DE GUZMAN Deputy Attorney General State Bar No. 197817 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 327-1145 Fax: (916) 324-2960 Email: Jennevee.DeGuzman@doj.ca.gov Attorneysfor Respondent EATER PENALTY Page Statement Of the Case... cecccccessecsseeseeeleccecsesseeesseessaeeseesseeeseceaeesecessessnees 1 Statement of Facts..........sueseeeeeaaseaassececcccseccescuuessencuseeccceeeeusususeseececesecaueesetees 3 A. Appellant’s Relationship With Mary Webster and The Early Preparation of a Robbery...............00. 3 B. Appellant Ends His Relationship With Webster and Begins a New One With Jerri Baker............0.000.. 8 C. The Billingsleys......0...ccccccsssecsssessssessessecssscssessseesees 10 D. Appellant’s Relationship With Sue Burlingame and The Days Leading Up to The Office Robbery and Murders .0......cceccccssecsscesscesseeseeeseeeseeeses 11 E. The Day of The Office Robbery and Murders......... 13 F. After Robbing The Office and Murdering Manuel and Tudor, Appellant Drives to Webster’s Duplex, Unloads Evidence against Him, and Returns to Baker’s Home..........eeceeeeee 18 G. June 21, 1993, The Morning after The Office Robbery and Murde?s...........cccccsscsssssseesseesseeecsseeeass 20 1. Appellant Instructs Baker to Clean Her CAL... eecccesceseesceeaecseeencessceseeeseeeneceseeeeesneeaes 20 2. Webster Has A Change of Heart and Retrieves the Evidence from the Dumpster ........eeeeeeeseeeeeseeeeensssttererseneeeeereese 21 3. Webster’s Interview with Detectives Reed and Edwards............ccssssssssssessserscesseees 22 4. Appellant is Arrested Later that Day; Baker Turns in Evidence and Eventually Talks to Law Enforcement...........ccccseseeeee 24 H. Additional Evidence Collected during The Investigation... ececeesccsesseecsteceseeceeesecsseceesseeeenes 26 1. AUtOpSies oo.eeeeeeecrecesseecseeeeseesetesseeeseess 26 2. Latent Prints... cccecessesssessssessscsseeseeseeeseees 27 TABLE OF CONTENTS TABLE OF CONTENTS (continued) Page 3. Baker’s Cat ........cccessssccesseseeesceesceeeeesneeesnceess 28 4. Additional Interviews...........:ccssceessseeetneeeeee 28 a. Sue Burlingame...........cccecccceesseeeeeees 29 b. Tracy Grimes 20.0... eeceeeceseneeeeteeeeneeeeees 30 ATSUMEMS 0.00... ..ceeeesersteeeeeeeeeeesSuecaeeecusnaaceeceesessenseeceeseseqsesscanesescesueesnesesereess 50 I. Appellant’s Statements Were Properly Admitted Because His Limited Invocation of His Miranda Rights Did Not Preclude Detectives From All Other QUESTIONING 0... eeeeccceecsteeceesneeceteeeeseececeaceseseeeesaeeeetaceseeeeerens 50 A.. Background...eeeeeeseeeeeeeeeeeseeeseeseteneeeneeeaeeenees 50 B. Relevant Law ........cccscsscssesesssceeesseceecseeseeeeeeseseeeseeees 56 C. Appellant’s Limited Invocation of His Right to Remain Silent as To The Subject of The “Robbery/Murder[S]” Did Not Preclude Detectives From Questioning Him about Other Topics Such as His Whereabouts on The Evening of The Crimes.............ceccesecesseeeeeeeeseeeeeneeees 59 Appellant’s Statement was Voluntary .......0..ee. 64 The Trial Court Properly Admitted The Testimony of Greg Billingsley, Stacey Billingsley, and Sue Burligame.........eee... 67 1. Appellant’s Statements were Voluntary........ 68 2. Detectives Reed and Edwards Honored Appellant’s Limited Invocation of His Right to Remain Silent as to the Topic of the “Robbery/Murder[s]”’.............:::ccesceeeeeeee 68 3. The Evidence Would have been Inevitably Discovered............ceecessceeseeeeeees 71 The Admission of Appellant’s Statement was Not Prejudicial ........ cee ceseesecesseceseeeseeesseesseeeseeeseees 73 re U. TABLE OF CONTENTS (continued) Page The Trial Court Properly Admitted Relevant Evidence of Webster’s Fear of Appellant as Well as The Redacted Transcript of Her Police Interview .............c.c00 78 A. Background... eeecccsscceseecssceseeceeeeceeeeseesesareseeeneees 78 1. Item No. 1 (“Any reference to [appellant] being an ex-convict”) .........ee 79 2. Item No. 8 (“Any reference to [appellant’s] prior record and/or references to hurting peoplein prior Criminal activities”) ...........cccecssesesseeeeesesseees 80 3. Item No. 13 (“Any reference to how he has used ‘Nu-skin’ in prior robberies”)......... 80 4. Item No. 15 (“Anyreference to how he did something to someone who turned him into the police”): 0... .eecsssceeseseseetseeseees 81 5. Item Nos. 17 (“Any reference to how he tried to kill three people, including strangling her son’s girlfriend”) and 18 (“Any reference to a physical assault on Greg Nivens”’):.........seseseessreeseeeeeeeseeeeneeeeneeees 81 B. + Lawon Prior Criminal Conduct..........seeeeneeesetenseeens 98 C. The Trial Court Properly Admitted Relevant Evidence of Appellant’s Uncharged Prior Bad Acts and Webster’s Taped Interview With Sheriffs Detectives .........ccc ceessecsseseceeccececececsceanes 101 1. Evidence of Appellant’s Altercations With Nivens and Hobson Had Substantial Probative Value BecauseIt Caused Webster Fear, Which Was Highly Relevant to Her Credibility ............. 101 iil Il. IV. TABLE OF CONTENTS (continued) Page 2. Evidence That Appellant Told Webster That He Was an Ex-Convict and Bank Robber Who Had Committed Past Robberies While Using Nu-Skin and Various Other Disguises Had Substantial Probative Value Becauseit Demonstrated The Nature of Their Relationship And HerState of Mind at The Time of Her Interview With Detectives .......ccccccccesssssssssssssesssensstscseessteeeese 106 3, Appellant’s Reference to Having Hurt and Killed People in The Past Was Substantially Probative ......... ee ceeceeeseeeees 108 4. The Trial Court Properly Admitted the Challenged Portions of Webster’s TintervieW .......cececeescceseecseeeseeesseeesenenessseneeeeees 109 D. Any Error was Harmless; There Was No Federal Constitutional Error..........cccceesereeesseeeesees 111 The Trial Court Properly Admitted Evidence That, Prior to The Office Murders, Appellant Had Solicited Greg Billingsley and Billy Joe Gentry to Assistina _ RODDETLY...... ec eeeeecsseeeseeceseeeeeecsesesesceeessseeensteeneessseeseenteness 112 A. Background .........cccsscscceccessereseseseesecsssenssnssseneesseees 112 B. The Trial Court Properly Admitted Evidence of Appellant’s Prior Solicitations to Commit a Robbery as Evidence of Design Or Plan,as Well As Motive And Intent, Pursuant to Evidence Code Section 1101, Subdivision (B); Any Error Was Harmless..........ccsscscssssseesesteeseeeees 119 The Trial Court Properly Admitted Statements Made by Appellant During Seminars for Robbery InVeStigators ........ cee seecseetseeesesesssseenseesaseses saceeeeeeeneceeeeace 125 A, Relevant Proceedings.............::esscccssecessessesseeeeeens 125 iV VI. TABLE OF CONTENTS (continued) Page B. The Trial Court Correctly Admitted The Statements Appellant Made to Robbery Investigators As Evidence of His State of Mind.... 131 Cc. There Was No Prejudice .........cceesessessssceeseeeseeeseeees 138 The Jury Was Aware That Detective Reed Was Unaware of Langford’s Statement That He Had Retrieved The Gun From Baker’s Car on The Night of The Murderoc... cceeeceesceescesteeseecseeessessseeecsessesesessueeeesensees 139 A. Background..........ccescccsessscessesseesssseeessaeeessessseeseeens 139 B. The Jury Knew Detective Reed Was Not Made Aware of Langford’s Statements To Carli Until After Langford’s Trial Testimony; Therefore, Appellant Was Not Precluded From Impeaching His Credibility 00... cccccscccsscssesseseneesessesseeesseesseeees 143 The Prosecution Properly Introduced Appellant’s Interrogation Statements During Its Case in Rebuttal....... 145 A. Background...ceccsseeeeeseseceseeceneeseeaeeeeereeasens 145 1. Appellant’s Statement That He Had Seen Coverage of The Killings on The News....... 146 2. Appellant’s Statement ThatHe Was At The Office on The Night of The Robbery/MurdetrS.........:cccccsseceeesseessesesseeeees 147 3. Appellant’s Statement That He Was Driving Baker’s Ford Probe on The Night of The Robbery/Murdets................... 148 4. Appellant’s Statement Regarding the Clothes and the Blood on the Clothes......... 150 B. Appellant’s Statements Were Properly Introduced as Rebuttal Testimony....................00:... 153 VIL. VIII. TABLE OF CONTENTS (continued) Page The Trial Court Properly Exercised its Discretion Whenit Limited Defense Counsel To Asking Prospective Jurors Whether They Would Consider Appellant’s Background and Extenuating Circumstances in Mitigation... eeeeeeesesneeeeseeeseneeeeens 157 A. Background.........eeeessceceeeseceesereeeeeeeeseseesesseeeneeeens 157 B. TheTrial Court, During Voir Dire, Properly Limited The Defense To Question Potential Jurors Generally about Mitigating Circumstances Rather Than The Specific Factors of Poverty and Abuse Which Would Have Been Misleading and Caused Them to Prejudge The Penalty Issue...eecesseeeeeeseeees 161 C. Error, if any, Did Not Prejudice Appellant............. 166 Appellant’s Challenges to California’s Death Penalty Statute Have All Been Repeatedly Rejected By This Court and Are Otherwise Lacking in Merit............eee 167 A. California’s Death Penalty Adequately Narrows The Class of Offenders That are Death Eligible..... 168 B. Penal Code Section 190.3 is Constitutional............ 169 C. The Death Penalty Statute and Accompanying Jury Instructions Adequately Set Forth The Appropriate Burden ofProof...eeeesesseeeeeeeees 169 1. There is no Requirement for Findings Beyond A Reasonable Doubtat the Penalty Phase ..........cssccscscesseeesseeseseessereees 169 2. Capital Sentencing is not Susceptible to Burdens of Proof or Persuasion; Appellant wasnot Entitled to an Instruction on the Presumption of Life........ 169 3. Unanimity with Respect to Aggravating Factors is not Required by Statute or as a Constitutional Safeguard ............ ce eeseeeseeeeee 170 vi TABLE OF CONTENTS (continued) Page CALJIC No.8.88 is Clearoeeeeeeee 170 CALJIC No. 8.88 Informed the Jury that the Central Determination was whether Death was an Appropriate Sentence............ 170 CALJIC No. 8.88 Is Not Constitutionally Flawed becauseIt Fails to Inform the Jury That If It Determines the Mitigating Factors Outweigh the Aggravating Factors, It Is Required to Return a Sentence of Life Imprisonment Without the Possibility of Parole... .eeeeseeseeeseeee 171 The Instructions Do Not Impermissibly Fail to Inform The Jurors Regarding The Standard of Proof and Lack ofNeed For Unanimity as to Mitigating Circumstance.......cccccceseseeseeeeesveeseseeseeeeaes 171 During The Penalty Phase of a Capital Prosecution, The Court Need Not Instruct on a Presumption ofLife................ 171 Written Findings of The Factors in Aggravation | are Not Required... eeeseessccsecseeeseeeeeeeaseneeesenees 172 The Jury Was Properly Instructed on Mitigating and Aggravating Factors........ccccscssseccssesecesssseeees 172 1. TheUseof Restrictive Adjectives “Extreme” and “Substantial” in Defining ‘Some of The Statutory Mitigating Factors is Permissible..............cccsccsseseeees .... 172 The Trial Court WasNotRequiredto Delete Inapplicable Factors From The Instruction oo... eescseseeseeserretseeesteeteesrereteees 173 The Trial Court Was Not Required to Instruct That The Jury Can Consider Certain Statutory Factors Only in Mitigation oc.cee eeeseceeeeeesseseeesesereseseenes 173 vil TABLE OF CONTENTS (continued) Page F, Appellant is Not Entitled To Inter-Case Proportionality ReView ..........csceessreecesneeesseeessreees 173 G. Differences in Sentencing Procedures for Non- Capital Defendants Do Not Create a Denial of Equal Protection for Capital Defendants................ 173 H. Appellant’s Death Sentence Does Not Violate International Norms of Decency, Due Process, or The Eighth Amendment...0.... cc ceeeeeseeereeeeeees 174 IX. There Were No Errors at Trial; Thus, There Was No Cumulative Effect...........ceeseeeeaeeeseeeeecesesesesesaseraeavenntenssoees 174 X. The Trial Court Properly Imposed The Restitution Fine Pursuant to Government Code Section 13967...........0..... 175 A. Appellant Has Forfeited This Claim.........cee 175 B. The Sentencing Court Fulfilled Its Duty To Make The Requisite Determination of Appellant’s Ability to Pay...ceceesseereeeeeees 177 C. TheRestitution Fine Should be Reduced by The AmountofVictim Restitution...eeeeseeeeees 180 Conclusion 00.0... cesessseesesesseeenseserenes vaneeseecececeeeaecaececensdesseeeeeensesenaseatenees 181 Vili * TABLE OF AUTHORITIES Page CASES Apprendi v. New Jersey (2000) 530 U.S. 466.0... cceccecessesesseeseesesesseseceecsenscsscsecssenguacncsstenscersaners 169 Arizona v. Fulminante (1991) 499 U.S. 279. eccecesessssesesesscsessesesssessessseasesceessssssevssescsesevaneevarees 73 Berghuis v. Thompkins (2010) 130 S.Ct. 2250... ececccecscesesenscssesesesssecseeesscsassssssssscsasscsncnavaceese 57, 58 Blakely v. Washington (2004) 542 U.S. 296.00. eccccssesesseseseeeatesesessesssssesesscecsesessscsessacaueessaetaners 169 Boydev. California (1990) 494 U.S. 370. eeccceeceseseeseseseeseseessseseseesessesessseesseseesssssseceseaceceaes 168 Brownv. Payton (2005) 544 U.S: 133eeeceeecssecesseseeseeseesesessesesseeseteesesesscsessecssseecssssaeees 168 Brown vy. Sanders (2006) 546 U.S. 212.eecececeseesecesesessessssssssssecsssacsessesseesseecsesssssssacsesssnsaes 167 Buchanan v. Angelone (1998) 522 U.S. 269... ecceesecsesseeesececseetseseseeseseesesseseeesecsteseseesssecscensaes 168 California v. Brown . (1987) 479 US. 538. eeecscseseccesceseseesessesssscesseseeeesseseesesscseseessaseusecssssasacees 168 California vy. Ramos (1983) 463 U.S. 992oeeceecsesenssssseeseseesesesseseseecassatsesssseecssusssssescacsseees 168 Chapmanv. California (1967) 386 U.S. 18oeeeecesssececsesessessssesseseecesecssesessesecseecsessucesssssesseatevae 73 Davis v. United States (1994) 512 US. 452oeeccectesceetseneesessesesesesseenseeseeaesessssesessssessasevaeeeeasers 57 In re Shawn D, (1993) 20 Cal.App.4th 200 .......sscssssssesssssssssssssseesseeeeeeessesuseciosssesecsessnene 57 1X CASES Kansas v. Marsh (2006) 548 U.S. 163 occeeeceeeescneeseesesceereeteeeseesennsarsessesessessesecneseessenaseees 168 McCleskey v. Kemp | (1987) 481 U.S. 279ee ccccccecneceseeseeneeeesasssesecsuesecsessasseseseeeseeseeneenesseeaes 168 McKinneyv. Rees (9th Cir.1993) 993 F.2d 1378eeeeeeeeseeeeesseseesesserseesseesessseseeseeseseesaes 112 Michigan v. Tucker (1974) 417 US. 433 ececcceeteeeeseerseeeesensensesecessscssseessssessesesesesesssesseneseeees 70 Miranda v. Arizona | (1966) 384 U.S. 436cececcs ceseessereeeeeceseseaessnensesseseesseeeseesseessenaespassim Missouri v. Seibert (2004) 542 U.S. 600... eeececeeceeseeeeceseneeeseeseeesesseesessesessesseseesesseeseeneeneees 71 Moran v. Burbine . (1986) 475 ULS. 412ceceteeescseecceeteetesssensereneesesecsesseseseessreseseseeeneeees 58 Murray v. United States (1988) 487 U.S. 533... eceesecssessesesseseressessessessenenecseeacsasaesseseesessesseerentents 71 Nix v. Williams (1984) 467 ULS. 431eeceeeseesseestesessesecsesesseeseeseseeeensneesseseesessenseneseenaes 71 North Carolina v. Butler © (1979) 441 US. 369eeeeecsesseseeesseseeseeencseesesseseeenseessrsaseneeaeenees 62, 176 Oregon v. Elstad (1985) 470 U.S. 298 ..ccescecscsecsseseesceneseseesseeeseeseeeteeeeeneneeeeenseceensseseeeusenessens 70 People v. Ashmus (1991) 54 Cal.3d 932 0. eesceceseceesssessesseeresssestesnensennes Zecesseeeseee 55, 59, 61, 62 People v. Avalos (1984) 37 Cal.3d 216 ...ceececsssesereeerseesteeeeereeectseesscenenseessssereneneneseseaneneees 102 People v. Balcom (1994) 7 Cal.4th 414eccecseserceseeneeseeenecssesesesseseennseees 121, 122, 124 People v. Barnwell (2007) 41 Cal.4th 1038 0... eseeeesneseeseersssesseneeseesensentenees sesseegesneatens 168 People v. Beyea (1974) 38 Cal.App.3d 176 o...ccceececsceseserseteeseeeesesessesseneeseeseesesaeerenessens 122 CASES People v. Bonilla (2007) 41 Cal.4th 313oececssesseeseeseseensescsseseseecseeseeseesseesaesaeeneeaees 168 People v. Brown (2003) 31 Cal4th 518 oooceceeeesecsesessneseseeseeeresaccaessessecaeseseesenseeeeess 143 People v. Burgener (2003) 29 Cal.4th 833 oo. cccciseesscsssecssesssesssssesessesssseeeesseesseseeenens 102, 104 People v. Burney . (2009) 47 Cal.4th 203 ooo... eeeccececeesecsscseeeseeeececseececseesaeeeseesecseeesaeentensteaes 103 People v. Butler (2003) 31 Cal.4th 1119oececseesecepesceecessesacesecseseeesesstsaeseeseeeeeeaees 176 People v. Butler (2009) 46 Cal.4th 847 oooeccenecseeetereeseeeseseeceaseeeeeaeae 162, 163, 165, 166 People v. Carrington (2009) 47 Cal4th 145eeessseeeeecseesenseeeescneeseeseeseesensceseeresaeeats 63, 65 People v. Carter (2005) 36 Cal.4th 1114eeeneneeeees setaeeaseueneneeneneaeeneeneasatentacerensens 121 People v. Cartier (1960) 54 Cal.2d 300 oo.eecccseseeceseseceeeseeccseecesceseecsesereeeseesaeeneeaeenens 132 People v. Cash (2002) 28 Cal.4th 703 0... ccceccccsccssesseceseceeeeeseceteeeseeeneesneeerseeees 164, 165, 167 People v. Catlin (2001) 26 Cal4th 81 occ cccsssseeestsssessesensseenerenseeeeeecseneesneserseeeees 77, 112 People v. Clark (1992) 3 Cal.4th 41ecseeecsceseseesssresssssesesseeereessenseeses 58, 59, 60, 61 People v. Coffman . (2004) 34 Cal4th 1 ooeecccneeeecteceeeseesectensesereeesenseaseaseees67, 153, 155 People v. Cooper (1991) 53 Cal.3d 771 oe eecccscccesecececseeeseesceressceeceseceseeseeeessesseseseageseeseteaees 175 People y. Cotter (1992) 6 Cab.App.4th 1671 .cccccsccsscsssesssessesesescseeeeeesseseseessesessseesseesees 181 Xi CASES. People v. Crittle (2007) 154 CalApp.4th 368 oeceseeeeceeeeeereesseeessteessseseesseeeseeeeseenenens 175 People v. Cruz (2008) 44 Cal.4th 636oescecteseseecssersersssssssecsesseseeseeneeens 58, 132, 133 People v. Daniels . (1991) 52 Cal.3d 815 oecccsceneeeteneeeeeeeesteseseessassesseesessresseesseeeseensaens 137 People v. Davis (1981) 29 Cal.3d 814 ooocccccccsssscsseseeecssceeeseeceseeseeeesceerseeersesseeteaeeaseseseeats 62 People v. Davis (2009) 46 Cal.4th 539 ooeeeseeneerecereeseeeeesseseeesseeseeseesseeneeseneees 123, 136 People v. Dement (2011) 53 Cal.4th 1 oeceeeeseseeeeseeeeceseserscessevsnseseeseeseeeaee 170, 171, 173 People v. Demetrulias, (2006) 39 Cal4th 1 oo. ecceecsceccsecceeceneeesecseerseeseeescassuseserseeseeeessssseseseenes 123 People v. DeSantis (1992) 2 Cal.4th 1198oeeeeeeeee Lescesecesseeeeeteceeseeseeaeeecsaeeseeeaeeenes 121 People v. Doolin (2009) 45 Cal4th 390 oocecesecscseesecserereeseseesseseessesecsecsesssesseeeeses 100, 122 People v. Eubanks (2011) 53 Cal.4th 110oeceeseseessssetssseesensseseeseees 169, 170, 173, 174 People v. Ewoldt (1994) 7 Cal.4th 380oeieecesesesssesessssessscseseessesssesasseneeeneenseeneespassim People v. Flores (1979) 100 CalApp.3d 221 ooeccccssecesssceseseseneeeeneenetsseeesssesseseeerenens 134 People v. Forshay (1995) 39 CalApp.4th 686 oooeceeecessececesssssessecsessssseeneessesseesneesesees 180 People v. Foster (2010) 50 Cal4th 1301 oe.esgecaesesesecuacseseaeseeeseerenseeseneaceareesenesetaeees 101 People v. Frye (1994) 21 Cal.App.4th 1483oeeeeseeesesesessereessesscnsseccestessenseneesees 179 Xil CASES | People v. Funes (1994) 23 Cal.App.4th 1506 oo...ececceecsceeeseeeenersensssseeetessaeeeeessesneeees 124 People v. Gallego (1990) 52 Cal.3d 115oeeeeceeseeceseesseeceeeecesseeaeceeesaessessassaeeseessaeeeeee 124 People v. Gamache (2010) 48 Cal.4th 347 ooocccneceeneeeerecseceeresssssessseetssteseesaeeeneeeeees 177 People v. Gibson (1994) 27 CalApp.4th 1466iccccecesecseeesneceeeteeeeeeeeseeeeeees 175, 177 People v. Gilbert (1965) 63 Cal.2d 690occcneesececeeaeeseeeceenessssseseseecsscnssneteserseaeeaaees 63 People v. Gonzales (1967) 66 Cal.2d 482 oieceeseseecsetseeseeeecaeccersececsacensenesaeeraaesseseaeeenes 63 People v. Gray (2005) 37 Cal4th 168 oo... cccceccssessceseeteceseceeseecsessaseeeeaeensnseesseesneeeneensweeDD People v. Guerra (2006) 37 Cal4th 1067 ooeeeeseescseescseesseeessceeessesessseensesenens 67, 102, 175 People v. Harris (2005) 37 Cal4th 310 ooesesceeseeterseceeeesetseeeeseseeseseseentes 154, 168, 172 People v. Harris (2008) 43 Cal.4th 1269 ooo. ecccssccsssesceseesseceeceectecesensevsesenseateasersees 168, 169 People v. Hartsch (2010) 49 Cal.4th 472 ooo. cecceccssseseccescsesscsecerserssseesessseeseeseesseseseeeeeseesaeeas 143 People v. Hawkins (1995) 10 Cal4th 920 ooo.eeeccecseecescereeessceaeseeseeeeseesessatsersenessresseeesensenees 99 People v. Hennessey (1995) 37 CalApp.4th 1830 .....eeseecsecsecsseescsesnecntestesneeneeneentense 176, 179, 180 People v. Holloway (2004) 33 Cal.4th 96 0... .ececececcscssestsessesesesceseenseseeeseseecseseneeseecaeeateeeases 65, 67 People v. Horvater (2008) 44 Cal4th 983 oo.eeeessecscseressessesssssepessecsesessececaens 169, 170, 174 People v. Hubbard (1970) 9 Cal.App.3d 827 oo. eceescsscteeeceerseesesesescceesesassesssessetsaesssaseereres 134 Xiii CASES People v. Jablonski (2006) 37 CalAth 774 cecccsscccssssssssesssseeseeeesescussssssssassesestusssesseuee 67, 100 People v. Jennings (1991) 53 Cal.3d 334 occeeceseesceteeseeseeeessessesesesessesestsassaesessuseesseeseeeseees 107 People v. Jennings (2010) 50 Cal.4th 616 oo...cc ccecesecseceeeeteeeneseetenesesaessessaseaeseessessesneescseens 172 People v. Jones (2011) 51 Cal4th 346occeceneteeeeceneeseceeeneceseessseteeseeesscseseesseseseneses 103 People v. Jordan (1986) 42 Cal.3d 308 oo.eee eeceeceseeeeceeseeeseeaeeseeseseaecseesensneessseseseseesatenenenes 99 People v. Karis (1988) 46 Cal.3d 612.0...desaceuseeseeaceeseaeeseceaeeateneeneeaereevaesseaenaeeeeeseneespassim People v. Kipp (1998) 18 Cal.4th 349oeeseeeseeneceeeesaesesensesseeeseseeeeseee 99, 100, 120 ‘People v. Koontz (2002) 27 Cal.4th 1041 oeeeessetesesestssescssensstersersatseeseseeseeeesleaneteneteneces 175 People v. Kovacich (2011) 201 Cal.App.4th 863 oo...eeeeeesecsssssssscssssessessssssensssseneenseenennes 123 People v. Lancaster (2007) 41 Cal-4th 50occecsessecseesecsscseesrersecrecessssssssssesecsesssceteseeseeeseeaes 153 People v. Lang (1989) 49 Cal.3d 99]eee ceeesceseeeeceeesereessssesssscsssssasesssnssesseseeseees 132, 137 People v. Lasko (2000) 23 Cal.4th 101 oeeeeeesssesessecseeseceeesecsscesssesssasssesssesseseseessestenss 99 People v. Ledesma (2006) 39 Cal4th 641 ooescesssessesessesesssesssnsssssseeseenssenseseeseetenaeees 107 People v. Lee (2011) 51 Cal.4th 620oeceseeeseseessereseneeeeeesseseceaeaeseaeeseeetsesenenenees 77 People v. Lewis (2001) 25 Cal.4th 610eeeceeeeseeesessessessessesensssecsenseseeseessenens 121, 137 People v. Lilienthal (1978) 22 Cal.3d 891 cocccscssecesscsssssesssssssssssssssessssssssssecsesessscsssccececcereceeceeeee 177 XIV CASES People v. Low (2011) 52 Cal4th 46 ooo. eececescceenecteceeeeeneseeeeesaeseaeeneeseeeseseeaees 171, 172 People v. Massie (1998) 19 Cal4th 550oeeccsceeeeeneceeeesessesaessenseseessesessessesssseseesaeeeeaes 65 People v. Maury (2003) 30 Cal4th 342 ooo ecececeseesseeceeneeceeeeeseesseeaeessesseseresseseeesseaneeseenees 65 People v. McCray (1997) 58 Cal.App.4th 159 oo.cceceseeneeneeeeeeceetaeeeesesceseeeeeeeneeaeeswee 132 People v. McCullough S192513 veccccccceesccsecesceesceececseceecessesecssceeceeesessesesecaeeneseneceeseaeeneseaeeseeeeeneess 176 People v. McGhee (1988) 197 CalApp.3d 710 oo.eeceeeseneeeeesesseeseseeeeseneteeseseeesssseasenaeeees 178 People v. McKim (1989) 214 Cal.App:3d 766 oo.eceeeneescestesscneeseneeeeeeens seeveeeseeeeneseasease 134 People v. Memro (1995) 11 Cal4th 786 0...eeeeeeeneeeeeteeees sesseescaecneaeecendesesersaceseeseneees 120- People v. Mendoza (2011) 52 Cal4th 1056 oo.eeceeeeeneesenecseeeeeeenseeeasasesseesseseessenes 172, 175 People v. Mickey (1991) 54 Cal.3d 612oeececsseeeseeeteseeereeseeeesseteeeeeeee senseseeeceaneaeeeseees 105 People v. Musselwhite (1998) 17 Cal4th 1216oeeseeseseesessssssseeseesessseseesessesseesessseaeneeseenes 58 People v. Newlun (1991) 227 Cal.App.3d 1590weseseas leseaesseeseesacesseeaeeseecaseetseesaeeneees 177 People v. Noguera (1992) 4 Cal.4th 599 ooeeeseeeeeeecserseeeseeseseeseesssesesesseseeseeesseees 164, 165 People v. Page (2008) 44 Cal.4th1cececeseeneeneseeeeeeesetseesLesneceeeeaecneeeaseceseesaeeneeees 111 People v. Perez (1974) 42 Cal.App.3d 760 oo.cscccssenersscecsssesecseseesesscesesseenscneeneees 123 People v. Pertsoni (1985) 172 CalApp.3d 369 oo. cccceeeescsceeesesessesesecesseesssseateneeseeseeneens 124 XV CASES People v. Ray (1975) 14 Cal.3d 20 occ ceeceeecsecenecsecesceeeneeeeseetsessessesteaessresecseseeesseseesiessess 153 People v. Robles (2000) 23 Cal4th 789 oo... ei ceseeseeseeesenseeeeseeseseceseensseesssesserseteeeseasesesssuses 71 People v. Rodrigues | (1994) 8 Cal.4th 1060 0.ceeseeseeneeeeeseeseeseneseeeesesesseeteteneeeesees 100, 101 People v. Rodriguez (1986) 42 Cal.3d 730 oo. cecceeceeceeneeeceeeeeeeeecetereseeessesseeneeseneanene 132, 137 People v. Rodriguez (1999) 20 Cal4th Looecesecseeneeseesteesseeeeseeeeseeeeeseneeneens 100, 121, 143 People v. Roldan (2005) 35 Cal4th 646cecessecseeesesneeesesseesesseeeereeeeees 122, 123, 125 People v. Saunders, (1993) 5 Cal.4th 580occeeceeeeeecessstssssssessesssrecsssessesseseeseesseneseees 177 People v. Scheer (1998) 68 Cal.App.4th 1009oesdeseeageseesaeeneeatenersessteneeeesenseeees 122 People v. Scott (1978) 21 Cal.3d 284 ooo eccssssseesessseeestecssssssssssssesecseeseseessessesssessenenees 175 People v. Silva (1988) 45 Cal.3d 604oeeeeeseeesesssesetsesseserscsecsereesesneneenees.57, 58, 59, 60 People v. Slaugher (2002) 27 Cal.4th 1187 vo...eeedesseneeaesaceaesceacensecaseseeneeereaneaeenterseateees 175 People v. Solomon (2010) 49 Cal4th 792ceccesssssscsseessersssesssssessssscsssscsssessseseesseeneeeneness 166 People v. Spector (2011) 194 Cal.App.4th 1335 occccccssessssessssscessessscseesecsessenseresseaees 135 People v. Spinks (1961) 190 Cal.App.2d 366 oeeeseecssesssseseessesesesssnsssceresesseseesesseseenees 177 People v. Steele (2002) 27 Cal.4th 1230 oo.eeecceeeeeeeeeeeessesnesaceseeesersescencesesoanesucouss 103, 136 People v. Stewart , (2004) 33 Cal4th 425 ooeccceceeteseseessseesessecscssessceeeeeseeeseseeseereeeees175 XV1 CASES People v. Sully (1991) 53 Cal.3d 1195 ooeeececsesseesereeestaessersceeseeeeescaeeessseesseseeeneseeeenes 58 People v. Sykes (1955) 44 Cal.2d 166 ooo.ee eecceeceeeneeeeecseeceneesseneeseeesaeessesteeeeeseesseseseeees 123 People v. Thomas (2011) 51 Cal4th 449occcceceeneeeeesseesesseeseaeesseseseseesseesseeeeees seveeeess 73 People v. Thomas (2011) 52 Cal.4th 336 oooccecseseseesescsesecsesscsessssessessseseceeserseaeenseeeees 125 People v. Valencia (2008) 43 Cal4th 268 ooo. cecccscceccsseesceeeeseessesseeeseeeessseaesasessesseeseeeseees 102 People v. Valtakis (2003) 105 CaLApp.4th 1066 0...eeccceseeseseeeeneetecreseeeateceteeseesseeenes 176 | People v. Vera (1997) 15 Cal4th269 oo. cccccscscscssecesecesesssescsesecseseeseeesesesesesesesesseseseaeeees 144 People v. Waidla , (2000) 22 Cal.4th 690 oieeccescsessecneeeensesscesceeeeaeeeeesseceaceseeseneeeeas 100, 106 People v. Walker (2006) 139 CalApp.4th 782 oo... eeesescscscseeseeeesceeeeeneceseceeeeneessetsneeresseees 124 People v. Wallace (2008) 44 Cal4th 1032 oo. .eceseesesssesetsseeeessesneeenssaeeseeaeesetaseacestesseeeeaeenees 136 People vy. Warren (1988) 45 Cal. 3d. 471 ooeescceeesceseteceseceeesneseessaeceseesesseesessenssseesneess 102 People v. Watkins (1970) 6 Cal.App.3d 119 oecccecseeeestersereserseneteeesseteneeseeeneneeeeeasentens 58 People v. Watson (1956) 46 Cal.2d 818 oooescscescesetsesseeeseseceseeesseeseeseseaersnesssearesesens 139 People v. Williams (1997) 16 Cal4th 635 ooo ceecececeseesecseeceeeesseesesesecaeesteceeseaseeseeeeesseseseeens 65 People v. Williams (2010) 49 Cal4th 405 oooceessssseeneserecseesneeeseeeeesaetasseeeeseeesereespassim People v. Yeoman (2003) 31 Cal.4th 93 oo. ceesscsssseesseesseteecserseceseseesseseeceeseeseessesseseesaeeeeess 61 XVil CASES People v. Young (2005) 34 Cal.4th 1149oeeeeee eeerreeeeenrenees 153, 154, 155, 157 People v. Zapien (1993) 4 Cal.4th 929 oooeeeeeessenseesescseceessseseseresssnesneeeneesaessenseeeeees 144 People v. Zito (1992) 8 Cal.App.4th 736 oo...ceceec ceccsescnecesessesesesessenesseseeessessenseensees 181 Pulley vy. Harris (1984) 465 U.S. 37 ooo eeecseceee eee ceeeesessesseessecsecnesereseseeesseeeseecsessaeerseneasans 173 Ring v. Arizona (2002) 536 U.S. S84.ceeeesecneseceseessessesseseeeeassesseesseeneeseeeaeeneaes 169 Story v. Nidiffer (1905) 146 Cal. 549 [80 P. 692] oo.eeeeecesesesseseseesesseesseneseenenaees 177 Terrovona v. Kincheloe - (1990) 912 F.2d 1176.0.eee eecceeceneescseescteescessesessesesecserenseeseeeesesseseenesenens 62 Tuilaepa v. California (1994) 512 ULS. 967eceeeeeeseneteeceeeessesseeeeseesseneessensesessessenssseseesees 168, 169 U.S. v. Ankeny (9th Cir. 2007) 502 F.3d 829 oo ecccccscecseesceseseeseseesssssseesseseneeseeeeseeeenes 72 United States v. Andrade (9th Cir. 1986) 784 F.2d 1431 occeeeeetscsseeeesersessessceesessseesesesseeneneeees 71 United States v. Patane . (2004) 542 U.S. 630... ecesessesseessesssessssesssscsscseseceseesesssssessseseeseeseseeessenenees 70 United States v. Polanco (9th Cir. 1996) 93 F.3d 555 woeeecsscssssessescsessceeseseessseeeesleseseesenseesneneeees 72 United States v. Ramirez-Sandoval (9th Cir, 1989) 872 F.2d 1392 oo. cecccsccsesssereesenesssseeesessessesseeseesecseeeneeeees 71 United States v. Van Dreel (7th Cir. 1998) 155 F.3d 902 weeeceeesssseeeesesseeseeseneeaseeseesseeeseesenensaees 63 Whren v. United States (1996) 517 US. 806..........suucaceseenaccssensucceceeauataccecserucesecescececessuccecensesceessans 70 Withrow v. Williams (1993) 507 U.S. 680.0... eceseeceeeessescsessssesceeeesesesesesssecssseaesessessesearseaenenenees 65 XViti STATUTES Evidence Code SLO]eeeeecceesecsceceeceeaeceecseeseeeeeneaeessesesesenessaesesaeeseessatesseeaees 98, 99, 121 § 1101, sub. (a).eeecceeeeececesereeeeeeceeesacesenteeaeeeesateneeeeeeesessaeeesaetes 98, 119 § 1101, subd. (b) ooeeeeccscessecesteeeesnecsaneesesareccaneeecsneeecaeeereaneeneaeessaespassim § LQ20.ee eeeeceteeseetecneecneeteneeeeseeesessetsaeeseeaesnaeceaesessaeeessedseseeeaeeaessaeseeteneees 128 3 LQ50Leececceececeeeseeteeeccnscessecsecsesaeeaeesaesseseeeaeesaeceaeesaeseaseseesanenteseseaaeeaseareraes 137 § QO.eecccseceneeeseseceeaceceeceesseceeeseececessceseaeesaeeeseesaeeesaeesceesasseeeseaeeseasees 79, 136 § 320.eeteeeteeteeeteeesacesnecsecseeeceegeseceatenecsceeeteacesseesaeeeseessenseeasensocseseceenerees 153 § 350.ee eeceeecceceecceseececscesseecsceessecesesseesceceaessesnaeenesesaseaesenssaeseaeeteeeseaaeensenasenes 136 Biceeecceestneceseecneecnseeceestarecneeseneecesaecesseesesseesesseeesseasesesaesssaeersnssesseaeeaees passim § 780... eccecsesssececceseeseeeereeteeeeseneeeeseaetseesseteceeeessaeesueeteaeceeseesecsanesneseeesaeeaeeeeas 102 Government Code § 13967oeeecceneescceeseceecesncesneecenecessaseessaeeeneeesseeesesageuceseeeneeesenssessaaeeenaspassim § 13967, subd.(4)...eee ceeeeceeeseeeeeceeeceeeeteeensaeenanersaeeseaeenaeesaeeeeeen 175, 180, 181 § 13967, SUD. (C).....ceececceeceeeeeeseecteeeseeceseeeeetaeesseesaeeesseseaeessueesateanerseaeeneerene 180 Penal Code § 1093, SUDA. (C) oo. ccesseceeeeeeeseteeeeeeeceseeadecseeeeseeesececeeesaeeesteaterenteneeeenees 153 § 1094cccccssceteeseceeeceeseeececaeecseceaeeesseesseseseeeeaeeesaeeesaeesseessstereeceessseetanetsees 153 § 190.3... eececeesccsseeeseeeeccesseceseeaceseenecseseeteaseaeeesareseceeseauarssessceseseaseeeesaengs 169, 171 § 1202.1occsetssesseseaeeeseeaeedesusasesssssseseaveacsesesecessacssecsstseeseanseeseeeescessucaueess 176 § 1202.4.ceecccteeseceecseccceenecsncenecsceceneeseeeeeeecseneeneeesseeeaeeeaeecneseaeeseesenees 177, 178 § 1202S.ececccessesteessesnceceseecssesseeesecsceeessececestacecsacesseecesaeesssesseseseresseenseesseeesee® 177 § 1203.1Deeeeceeseeeeesseeeeseeeeeteee deceeaeeeceesacessaessaeessnesescecseeecaeeeaseraaeesaeenaeeees 176 CONSTITUTIONAL PROVISIONS Eighth Amendment.............cccceeeeeesdevessseececaccesesecevaucessensenenease 169, 171, 174 Fourteenth Amendment .............cccscccsssssecessceccesseneeeeesetseesessenetenens 111, 172, 173 Fourth Amendment 00.0.0... cecccscesssccssvcsssscesseccescsseceseccecseassesscestecseesescseresecenses 64 United States Constitution soceaeesnesencsaneesesasesscescenesnessecussssseaecesessesnsseceseensseneeass 167 OTHER AUTHORITIES “Appendix A”at pp. 1-2 2. eeeeeesseseecseetecsancescesesesessseeseesseessensssesseasensegs 56, 62 “Appendix A”at pp. 2-4 oc. eeenseeesceseteccssesecesssseeeceseereseatseesasssnsessssseeeeeserseeats 56 “Appendix A”at p. 4 vcececceecsscsseeeeseeseesseeesnerseceeessesussssasesssssessesseasereneseesnes 62 CALJIC No. 8.85 wocccccccccccccccccccscscessssssssseccesssssssssvssssevevssssessencessesesessseseses 172, 173 CALJIC No. 8.88 .o...ccceecceccccccccsesscecececessssssscecccsscessscssesuseesesssvees veveseeeneee 170, 171 http://oxforddictionaries.com/definition/resistance?q=resistance.............000- 135 Sacramento Bee ......ccccesessseceeeescsssesecsssesseeeensecesssesneneseseeeeeseneneeeeeseneaeeneaess 3, 30 XIX STATEMENT OF THE CASE On June 23, 1993, the district attorney filed complaint number 93F05175 in Sacramento County Superior Court charging appellant Charles Edward Case with two counts of first degree murderin violation of Penal Code! section 187 (counts one [victim Val Lorraine Manuel] and two [victim Gary Duane Tudor]) and one count of robbery in violation of section 211 (countthree). It was alleged that appellant personally used a firearm during the commission of counts one and two within the meaning of section 12022.5, subdivision (a). It was also alleged as to counts one and twothat appellant committed multiple murders within the meaning of section 190, subdivision (a)(3) in that he murdered both Manuel and Tudoron or about June 20, 1993, and section 190, subdivision (a)(17)(i) in that he was engagedin the crime of robbery during the murders of Manuel and Tudor. It was further alleged that count three was a serious felony within the meaning of section 1192.7, subdivision (c)(19). (1 CT 16-18.) Appellant wasalso arraigned on June 23, 1993, and the court appointed the Indigent Criminal Defendant Program (ICDP) to represent him. ICDP assigned attorney Stacy Bogh to represent him. (ICT 1.) On August 19, 1993, appellant entered a plea ofnot guilty. (1 CT 2; 1 RT 13.) On October 26, 1993, appellant was held to answeronall counts following a preliminary hearing. The complaint was deemed the information. (1 CT 3.) Appellant waived arraignment, entered a plea of not guilty, and deniedthe allegations. (1 CT 3, 127-129.) On December1, 1993, attorney Hayes Gable was appointed to also represent appellant. (1 CT 4.) . ' Unless otherwise indicated,all further statutory references are to the Penal Code. On March12, 1996, appellant filed a motion to excludehispre-trial statements for all purposes. (2 CT 377-391.) The motion was heard on March 21, 1996, and concluded on March 25, 1996. (2 CT 377-391, 421- 422.) Also on March 25, 1996, appellant filed a motion to exclude evidence of his hearsay statements madeto Jerri Baker and Brian Curley. (2 CT 431-432.8.) Jury selection commenced on March 26, 1996. (2 CT 433.) The jurors and alternates were impaneled and sworn totry the case on May8, 1996. (2 CT 458.) On May9, 1996, the court denied appellant’s motion to exclude his pre-trial statements. (2 CT 459.) Also on this day, a hearing was held on appellant’s motion regarding his hearsay statements madeto Jerri Baker and Brian Curley. (2 CT 451, 459.) The motion was granted and deniedin part. (2 CT 459.) On May13, 1996, appellantfiled a motionto exclude _ statements of Mary Webster. (2 CT 460-461.) The hearing on the motion was held on that same day, andthe court ruled as to each issue presented as stated on the record. (2 CT 462.) | The guilt phase began on May 14, 1996. (2 CT 464.) On June5, 1996, a hearing washeldto determinethe admissibility of testimony from Ted Vourdouris, Brian Lee Curley, and Billy Joe Gentry regarding pre- offense conversations each had with appellant. With somerestrictions, the trial court found the conversations admissible. (2 CT 485-486.) The information was amendedon July 2, 1996, to include the allegation pursuantto section 12022.5, subdivision (a) with respect to count three. (1 CT 16; 2 CT 501; 22 RT 7282-7283.) On July 8, 1996,the jury received its instructions and the case for deliberations. (2 CT 573.) On the following day, July 9, 1996, the jury found appellant guilty as charged and the allegations to be true. (1 CT 13; 2 CT 574-579.) The penalty phase began on July 31, 1996. (2 CT 581.) On August 12, 1996, the jury receivedits instructions and the case for deliberations. (3 CT 719.) On August 13, 1996, the jury imposed a sentence of death. (3 CT 720.) On October 21, 1996, appellant filed a motion to reduce the penalty to life imprisonment withoutthe possibility of parole, and it was denied on October 25, 1996. (3.CT 722-727, 762-771.) The court imposed a sentence of death as to counts one and twoandthree years on countthree. (3 CT 772-779, 785.) In addition, the court imposed two five-year enhancements pursuant to section 12022.5, subdivision (a) as to counts one and two for a total of ten years and stayed the four-year enhancement pursuantto section 12022.5, subdivision (a) as to count three. It further ordered appellantto pay a restitution fine in the amount of $10,000 and a $4,000 victim restitution fine pursuant to Government Code section 13967. (1 CT 15; 3 CT 773, 785.) ‘A notice of automatic appeal was filed on November 4, 1996. (3 CT 786.) STATEMENTOF FACTS A. Appellant’s Relationship with Mary Webster and the Early Preparation of a Robbery In June of 1992, Mary Webster placed a personal ad in the Sacramento Bee seeking male companionship: (14 RT 4959-4960.) Appellant responded with a three-page letter asking Websterto call him at McKenry’s Drapery Service, his place of employment, where he pressed shirts. (14 RT 4961-4963; 12 RT 4500-4501; 13 RT 4562; 17 RT 6019.) Webster, along with a friend, ultimately visited appellant at his apartment where he explained that he was newto the area and lonely. (14 RT 4963- 4964.) Two weekslater, appellant moved into Webster’s duplex located at 5944 Bourbon Drive in Sacramento County. (14 RT 4964-4969, 4976; 17 RT 5974, 5999.) Approximately one week after moving in with Webster, appellant was involvedin a physical altercation with Webster’s son Gregory Nivens. (14 RT 4981.) Nivens wasat the duplex with friends and “was blasting the music too hard.” (17 RT 5974.) Webster unsuccessfully asked Nivensto turn the volume down. Sheleft the duplex and returned with appellant, who got out of the car, walked directly to Nivens, andhit him directly in the mouth.” (17 RT 5975.) Nivens called law enforcement, but Webster sided with appellant causing them to leave without making an arrest.’ (14 RT 4981-4982; 17 RT 5976.) One weeklater, appellant was involved in another physical altercation, this time with Randy Hobson, Webster’s roommate. (14 RT 4982-4984; 15 RT 5273.) Hobson asked Webster about money she owed him, and appellant encouraged hernot to pay him back. (15 RT 5277- 5278.) Hobson reminded Webster that she owed him the money. Appellant againtried to interject, and Hobsontold him “this [was] none of his business.” Appellant struck Hobson’s leg with a fireplace poker. (15 * On cross-examination, Nivens explained that Websterhadlater told him that appellant struck him becausehefailed to respect her. (17 RT 5988.) Also, because appellant did not have a car, Webster drove appellant to work and picked him up almost everyday. (14 RT 4980.) > Thetrial court admonishedthe jury as follows: Ladies and gentlemen, this evidence is admitted for a limited purpose. It is not admitted to prove the defendant, Mr. Case’s, disposition or his tendency to behavein a certain manner, but to establish the evidenceas to the character of Mary Websteror her feelings toward Mr. Case. You can considerit for that purpose andfor that purposeonly. (17 RT 5976.) RT 5278; 17 RT 5959.) The two men beganto wrestle, and Webster called law enforcement. (15 RT 5279-5280.) Appellant asked Websterto hide the pokerin the garage andto tell law enforcementthat it was not hisfault. (17 RT 5958-5959.) A uniformed officer arrived at the duplex, and Webstertold officers that Hobson struck appellant first. Because of the conflicting stories, the officer left stating that there was nothing he could do. (15 RT 5280-5282.) Hobson immediately moved out as a result of Webster’s lies.’ (14 RT 4984; 15 RT 5282.) * Thetrial court admonishedthe jury as follows: “Again, ladies and gentlemen,it’s admitted for the limited purpose of explaining the conduct of this witness.” (15 RT 5285.) After receiving an additional defense request for further instruction regarding the fireplace pokerincident, the trial court admonishedthe jury as follows: Ladies and gentlemen,that testimony is admissible for a limited purpose. It’s admissible on certain issues and should not be considered by you for other purposes. For example, it may be considered by you onthe issue of the credibility of Mary Webster. It may be considered by you in assessing the nature of the relationship between Mary Webster and Mr. Case. It should not be considered by you, for example, to say that if Mr. Case committed this act of violence, he, therefore, would commit other acts of violence, to wit, the offenses for which he is charged and,therefore, he’s more likely to be guilty of those offenses or not because of testimonyofthis act or fight involving a fireplace poker. You can say it’s admissible on some issues but not admissible on others. (15 RT 5285-5286.) Thetrial court continued: Onelast comment, courts are often accused of hiding evidence from jurors becausejurors fear that it is — the jurors will misuse the evidence. You should notuse this evidence to show that Mr. Caseis likely to commit an act of violence but for the purpose of whichit is relevant, that is, the credibility of (continued...) After moving in with Webster, appellant bragged that he was the best bank robber and shared robbery tales with her every night. (14 RT 4971, 4998.) Appellant, however, had never robbed a bank. (14 RT 4998.) Webster foundhis stories exciting and intriguing. (14 RT 4971, 4985, 4994.) She wasveryattracted to appellant. (14 RT 4994.) He talked about disguising himself by using Nu-Skin, to conceal fingerprints, wearing wigs and temporarytattoos, and layering his clothing to add weight. (14 RT 4972-4975.) During his stay with Webster, appellant received various instructional crime-related publications and purchased a wig and mustache, as well as a tube of glue, from a Halloween store. (14 RT 4976-4980.) Appellant enjoyed these publications because he could order parts, he could order guns. He could order parts andall kinds of stuff out of here. All kinds of— how you can do crimes, how you can do robberies, all the bad, bad stuff that you can ever imagine are in these. How you buyblow guns, guns in the house, weapons for women.... (17 RT 5958.) | Also after moving in with Webster, appellant immediately wantedto . purchase a gun so that he could “rob somestores, banks.” (14 RT 4992, (...continued) ‘Mary Webster and the nature of the relationship between Mr. Case and Mary Webster. (15 RT 5286.) > At this point, appellant had already represented to Webster that he was a bank robber. Thetrial court admonishedthe jury as follows: Ladies and Gentlemen, sometimes evidenceis admitted for a limited purpose, and you’re instructed that you are to considerit only for the limited purpose for whichit’s offered. [{]] Here, the answerto the last question is not offered for the truth of the matter asserted, and that is that Mr. Case was, in . (continued...) 4997.) Webster made arrangements for appellant to purchase a gun, loaned him the moneyforit, and purchased the ammunition for him.® (14 RT 4994-4997.) Appellant was very excited to have the gun. (14 RT 4995.) In September 1992, appellant showedoff the gun, which he kept in a shoe box, to co-workerand friend Billy Joe Gentry while at Webster’s duplex. (17 RT 5831-5832.) Appellant seemed excited and acted as if he had just received a new toy. (17 RT 5832.) | In October 1992, Gentry, his wife, and children stopped at Webster’s duplex so that appellant and Webster could look at their children’s Halloween costumes. (17 RT 5833.) Appellant and Gentry then walked to the comerliquor store, and appellant asked him if wanted to earn extra moneybybeing a “driver in a hold-up.” (17 RT 5834-5836.) Gentry explained that he was not interested because he had a family, and appellant asked him to keepit a secret. (17 RT 5836.) In late 1992, Sacramento County Sheriff's Sergeant Theodore Voudouris interviewed appellant, for reasons unrelated to this case, and - followed up by contacting him at McKenry’s. (17 RT 5807-5808.) After a brief discussion, they left the cleaners and talked at a fast food restaurant. Appellant stated that he had grown up hunting in Indiana, was experienced (...continued) fact, a bank robber, but to explain that that is what he said and it’s affect on the person whoheard it, Miss Webster. (14 RT 4993.) Pursuant to an additional defense request, the trial court further admonishedthe jury as follows: The same with ex-convict; not whether he was,in fact,an ex-convict, but that that is what he said to Ms. Webster and what affect it had on her and how it may explain her subsequent conduct. (14 RT 4993.) Webster also bought appellant a pair of boots with money she had won while gambling in Reno. (14 RT 4999-5000.) with firearms, and had a preferencefor either nine millimeter automatic handgunsor sawed-off shotguns. (17 RT 5809-5810.) Sergeant Voudouris asked appellant if he would be interested in speaking at a law enforcement seminar designedto give insight to robbery investigators. (17 RT 5810.) Appellant later agreed. (17 RT 5810-5811.) The seminar occurred in early 1993 in downtown Sacramento, (17 RT 5811.) The seminar was presented in a question and answer format, and a question posed to appellant involved what he would do during a robberyifhe was met with resistance. Appellant replied, in a cold and calculating manner, “I would take somebody out.”’ (17 RT 5812-5813.) Some weekslater, appellant spoke at a separate luncheon also’ attended by robbery investigators. (17 RT 5862-5863.) Appellant offered a few words and then openedupthe floor for questions. (17 RT 5864.) Someonealso asked what he would do if met with resistance during a robbery, and appellant replied, matter of factly, that “he would blow the person away.” (17 RT 5864-5865.) B. Appellant Ends His Relationship with Webster and Begins a New One with Jerri Baker In March of 1993, appellantmoved out of Webster’s duplex after telling her that he wanted to date other women. (14 RT 4986, 4988.) Appellant took his belongings with him, including two wigs, butleft a third wig behind. (14 RT 5000; 17 RT 5964.) Webster drove appellant to ’ During cross-examination, Sergeant Voudouris explained that he recalled the statement becauseit struck him that appellant was willing to - harm any individual whogot in his way. “And as a law enforcement officer, I made a mental footnote ofthat, that this individual should be considered someone who mightreoffend.” (16 RT 5822.) Baker’s house, where he plannedto live, even thoughshestill loved him. (14 RT 4985, 4988.) Baker worked at McKenry’s Drapery Service as the floor manager between 1992 and 1993. (18 RT 6073.) Baker and appellant started a romantic relationship after he moved in with her. (18 RT 6074-6075.) She was aware of appellant’s backgroundas a robberand that he was in possession of a gun.” (18 RT 6076-6080.) Heliked having the gun and was “kinda giddy whenhefirst got it.” Appellant kept it in a brown box with the words “Columbia House.” (18 RT 6081-6082.) He also spent time taking it apart, cleaning andoiling it, and “packed it with him everywhere he went,” keepingit in the trunk of the car whenheleft the house. (18 RT 6082-6083.) It was his “baby.” (18 RT 6082.) Despite this knowledge, she allowed appellant full access to her car, a Ford Probe, with or without her presence. (18 RT 6079-6080.) Initially, things were good between Baker and appellant, but eventually the couple began to argue more, which resulted in him leaving the house overnight approximately every other weekend. (18 RT 6084.) Baker was aware that appellant maintained contact with Webster, but did not suspect they were having a sexualrelationship. (18 RT 6084.) Baker considered Webster an acquaintance and wasnot otherwise “real friendly” with her. (18 RT 6085-6086.) Webster and appellant remained in regular contact after he movedout. (14 RT 4989-4990.) Initially, appellant would call Websterafter a fight with Baker, and Webster would pick him up. Eventually, the relationship ® On cross-examination, Bakertestified that appellant continually complained about Webster andcalled her “stupid,” “ding-a-ling,” and “money hungry.” (18 RT 6132.) ” Baker recognizedappellant’s gunattrial and describedit as “all the bluing is all missing andit’s really old.” (18 RT 6080.) became more romantic, and they began meeting for drinks or dancing, which they had never done before. (14 RT 4990-4991.) Although appellant always returned to Baker’s house, Websterstill loved him, “alwaystried to help him out,” and had “always been there for him.” (14 — RT 4992.) C. The Billingsleys In 1993, Greg and Stacey Billingsley, husband and wife, worked with appellant at McKenry’s Drapery Service.’? (12 RT 4500-4501; 13 RT 4562; 17 RT 6019.) They lived in Fair Oaks, and Stacey’s mother, Sue Burlingame,lived with them. (12 RT 4504, 4507.) Sean Billingsley, — Greg’s brother, occassionally stayed with them on a “revolving door”basis. (12 RT 4553-4554.) Greg and appellant becamefriends. (12 RT 4502, 4522; 13 RT 4563; 17 RT 6019.) Appellant told Greg he was a bank robber, and Greg admitted that he too had beenin and outof trouble with the law. (13 RT 4564.) Stacey was aware that appellant had just been released from prison and believed he was proudto be a bank robber. (12 RT 4503.) _ In May of 1993, Greg had plans to go ona weekend camping trip and asked appellantif he could borrowhis gun.'' (13 RT 4566, 4568.) Appellant agreed, and Greg picked up the gun, which was kept inside a cardboard box, from Baker’s residence. (12 RT 4512-4514; 13 RT 4567.) Greg returned the gun approximately two days later and watched appellant place the gunin thetrunk of Baker’s car. (13 RT 4568-4569, 4631.) Some weekslater, appellant twice asked Greg if he was interested in robbing Crestview Lanes. (17 RT 6020-6021.) On one occasion, while 1° Ror the purpose ofclarity,respondent shall refer to each ofthe Billingsleys by their first name. ' On cross-examination, Burlingame confirmed that the camping trip was in May of 1993. (13 RT 4732.) 10 they smoked in the Crestview Lanes parking lot, where they bowled every Wednesdaynight, appellant asked if Greg wanted to “do a job” with him and that Greg only neededto drive.” (17 RT 6021-6023.) Appellant explained that he would rob the “lady that does the bank deposit on Sunday morning.” (17 RT 6023.) Greg refused, and appellant“pretty much dropped the subjectat that time.” (17 RT 6024.) Appellant, however, brought it up again on a later occasion. While driving with Greg in Baker’s car, appellant asked him if he was sure he did not “wantto do this job with {him],” and Greg refused. (17 RT 6024-6025.) Appellant reminded him that all he neededto do was drive, but Greg again refused. The topic never cameup again between them.'? (17 RT 6025.) Appellant neverstated that Webster wasinterested in robberies or committing crimes. (17 RT 5839.) D. Appellant’s relationship with Sue Burlingameand the daysleading up to the Office robbery and murders On or about June 12, 1993, appellant had gotten into an argument with Baker andslept on the Billingsley’s couch.'* (12 RT4505.) At approximately 2:00 a.m., Burlingame returned homefrom a date and noticed someoneonthe couch, but did not recognize him. (12 RT 4508; 13 RT 4659-4660; 15 RT 5439-5440.) She walked to her bedroom and went to sleep. (13 RT 4660.) . Later that Sunday morning, Burlingamelearnedthat it was appellant and struck up a long conversation with him over coffee. (13 RT 4660- '2 On cross-examination, Gregtestified that, although he could not recall the month, the conversation occurred in 1993. (17 RT 6039.) '3 Following appellant’s arrest, Brian Gentry,also appellant’s friend, mentioned to Greg that appellant had approached him about committing a _ robbery, and Greg stated that appellant had also made the same offer. (17 RT6060.) '4 Greg testified that appellant had possibly stayed with them on both Friday and Saturday nights. (13 RT 4571.) He was aware that appellant had multiple girlfriends, including Baker and Webster. (13 RT 4576-4577.) wu 4661.) Later that day, while she vacuumed the house, Burlingame discovered a box'® containing a gun underneath the couch.'® (12 RT 4510; 13 RT 4667, 4745.) The gun hadnot beenin the houseprior to the day appellant spent the night. (12 RT 4511.) She returned the box underneath the couch and later asked Greg to removeit from the house. (12 RT 4510- 4511.) Greg movedthe gunto the garage. (12 RT 4514-4515.) . For the rest of the day, Burlingame and appellant talked and, at some point left the house together.'’ (12 RT 4514-4515.) Burlingamereturned late that night. (12 RT 4515.) Stacey had a discussion with Burlingame about appellant and advised that Baker washis girlfriend. (12 RT 4516.) Stacey knew Bakerwell because they had worked together for approximately six years at McKenry’s. (12 RT 4505-4506.) Greg returned the gun to appellant at work approximately three days later.'® (13 RT 4573, 4574-4575.) Appellant again putthe gun in Baker’s 'S Greg did not notice appellant carry a box into the house, but could not “say for certain whetherhe carried it in or didn’t carry it in ....” (13 RT 4633.) '® Burlingameinitially believed shehad discoveredthe gun on the. day before, Saturday, and had given the box to Stacey, but realized she was mistaken and corrected her testimony duringcross-examination andonre- direct by testifying that she had given the box to Greg. (13 RT 4663-4665, 4725-2726.) On cross-examination,shetestified that also inside the box _ was a smaller box containing cartridges. (13 RT 4722-4723.) Additionally, the space underneath the couch was approximately ten inches deep andeight inches in height. (12 RT 4553.) '” On cross-examination, Burlingametestified that they left the house after dark and went to The Office to shoot somepooluntil about 1:00 a.m. (13 RT 4680-4681.) '8 Greg testified that Stacey hadtold him that the gun was underthe couch where appellanthad slept, he retrieved the box and gun from under the couch, and placed them in the garage. The gun belongedto appellant. (13 RT 4573.) 12 car. (13 RT 4576.) Appellant explained that he had brought the gun to the house because “he didn’t like leaving it around.” (13 RT 4574-4575.) Sometime that week, while at work, appellant stopped Stacey to discuss McKenry’s new business relationship with Capital Power Federal Credit Union. (12 RT 4523.) Appellant was upset and complained of having been penalized for making a withdrawal from his savings account. "9 (12 RT 4524-4525, 4549.) E. The day of The Office Robbery and Murders On June 20, 1993, between approximately 3:00 p.m. and 4:00 p.m., Baker returned homewith hersister after a day of shopping, and she found appellant waiting for her. (18 RT 6088.) He wasin a hurryto play pool, “snatched” the keys from her, and said “bye.” (18 RT 6088-6089.) He was dressed in a button down, rosey-red shirt with a stripe, which she had bought for him, and boots. (18 RT 6088, 6295.) In fact, appellant had a date with Burlingameto play pool at The Office that afternoon and a date with Websterlater that evening to prepare her for an upcoming Social Security meeting. 7? (13 RT 4644-4645; 14 RT 5000-5001, 5145-5146.) Appellant drove Baker’s car and picked up Burlingameat approximately 4:00 p.m.”' (12 RT 4504, 4515-4519; 13 RT 4641-4644.) After stopping to purchase cigarettes, the couple drove to The Office where they played seven or eight games of pool. (13 RT 4644-4645, 4649-4650.) '? On cross-examination, Staceytestified that the average presser earned approximately $5.50 to $6.00 an hour, but did not know appellant’s hourly wage. (12 RT 4548.) . 0 On cross-examination, Bakertestified that appellant had told her that Webster had been drawing Social Security illegally and encouraged her to report Webster. Baker reported Webster, but nothing cameof it. (18 RT 6141.) *! Burlingame described appellant’s clothing as cowboyboots, Levis, and a button-up shirt with a collar. (13 RT 4647-4649, 4741-4742.) 13 They had been at The Office the week before and returned because Val Manuel, the bartender, said she would have homemadecabbagerolls prepared for dinner. (13 RT 4646-4647.) Manuel typically prepared lunch for the customers every Sunday and had prepared enchiladas that day. (11 RT 4171-4172; 13 RT 4770.) Because Manueldid not bring cabbagerolls, appellant and Burlingameleft The Office at approximately 6:30 p.m. to have dinner elsewhere. (13 RT 4655.) Appellant drove Burlingameto a Dairy Queennearthe Billingsley residence, where they briefly discussed his resumedrelationship with Baker and their continued friendship. (13 RT 4656.) He also mentioned he was upset because “the bank hadstolen his money.””” (13 RT 4666-4667.) Appellant left Burlingame at Dairy Queen because he had something to do with a woman named “Mary.” (13 RT 4656-4658.) Burlingame walked home andarrived at approximately 7:45 p.m. (12 RT 4521; 13 RT 4658.) | Tracy Grimes, a longtime patron ofThe Office, stopped there at approximately 8:30 p.m. to pick uphis share of enchiladas. (11 RT 4164- 4167, 4171-4172.) At the time, Manuel, Gary Tudor, a patron who | regularly helped Manuel close the bar, and patron Peggy Tucker were present. (11 RT 4165-4166; 13 RT 4770.) Appellant, who was dressed in blue jeans, grayish brown cowboyboots,and a sport shirt, was also at the bar. (11 RT 4170-4171, 4176-4178.) Grimes specifically recognized appellant because he had seen him at The Office approximately three times ?2 Appellant and Burlingamesplit all the costs that night, and he did not offer to buy her dinner. (13 RT 4667.) On cross-examination, Burlingametestified that appellant had money andthat he hadjust gotten paid. (13 RT 4728-4729.) She also recalled that The Office was unableto break appellant’s twenty dollar bill. (13 RT 4732.) *3 On cross-examination, Burlingame explainedthat appellant had discussed a woman named“Mary,”that she had problems with Social Security, andthat he planned to help her. (13 RT 4704.) 14 within the last two weeks.”4 (11 RT 4171.) Manuel, Tudor, and Tucker wereat the bar, while appellant walked back and forth between the bar and the pool table. (11 RT 4170, 4174.) He seemedto be listening to their conversation. (11 RT 4176-4177.) Healso had an unusual way of reracking the cue balls, placing one leg off to the side, which enabled Grimesto view appellant’s pants and boots.” (11 RT 4177.) Manuel stated that she plannedto close the barin 15 minutes, and Grimesleft approximately 10 minuteslater at 8:40 p.m. (11 RT 4176.) Meanwhile, between approximately 7:30 p.m. and 8:45 p.m., Anita Dickenson, who, together with her fiance Randy Pickens and seven-year- old twin boys, lived in trailer behind The Office, went outside to move Pickens’s car into the garage. (11 RT 4234-4236, 4238-4240.) She recognizedall but onecar in the parking lot and describedit as a small compact.”° (11 RT 4240-4245.) Dickenson then heard what soundedlike a single gunshot and duckedin front of her car. (11 RT 4246-4247.) A “couple of minutes” later, Dickenson got up and, while attempting to return to hertrailer, heard two additional consecutive gunshots. (11RT 4247- 4249.) Dickensonran insidethetrailer, turned off the lights, and advised 4 On cross-examination, Grimestestified that appellant was alone duringhis priorvisits to the Office. (11 RT 4206.) °° During the defense’s case-in-chief, defense invesetigator Tony Ganetestified that Grimes had told him, “I will never forget those cowboy boots.” (20 RT 6896.) *® While she could not positively identify Baker’s car, Dickensontestified that it looked similar to the unfamiliar vehicle parked at The Office. (11 RT 4244-4245.) Ofthe vehicles parked in the parking lot, the white truck belonged to Tudorandthe red car belonged to Manuel. (11 RT 4255; 12 RT 4283-4284.) On cross-examination, Dickensontestified that the white Camero parkedin the parking lot belonged to her brother and was driven by them. (12 RT 4264.) Shealso further identified a “mystery car” that was compact in size andsilver-blue in color. (12 RT 4265-4269.) 15 Pickens of what she had heard.”’ (11 RT 4249-4250.) Pickens went outside to investigate and told Dickensonit was probably fireworks.” (11 RT 4250-4251; 12 RT 4281-4282.) At approximately 9:20 p.m., Joe and Leslie Lorman”’ stoppedat The Office after having seen Tudor’struck in the parking lot. (12 RT 4296- 4299, 4314-4315, 4319.) The Lormanswereclose friends with Tudor and wantedto see him. (12 RT 4295-4296, 4299, 4315.) The Lormanstried to enter through the front door, but it was locked. (12 RT 4301, 4316.) After banging onthe front door and calling out for Manuel and Tudor, Joe looked through a window and noticed a woman’s purse anda half-filled glass of beer on the bar. He continued to call for Tudor, walked to the side of the bar, and discovered the side door was open. (12 RT 4301-4302, 4317- 4318.) Joe told Leslie that he thought something was wrong, though Leslie did not believe it. (12 RT 4306, 4318.) The couple entered the bar through the side door and continuedto call for Tudor and Manuel. (12 RT 4306.) Leslie had to use the restroom. She openedthe door to the women’s restroom,stoodat the threshold, and saw the bodies of Tudor and Manuel on the restroom floor. (12 RT 4307.) Leslie ran from the bathroom and yelled at Joeto get out and call 9-1-1. (12 RT 4309, 4320-4321.) Leaving the scene undisturbed, Leslie ran to the truck and drove it to a corner gas station. Joe met her by foot at the payphone. (12 RT 4309, 4321.) They called 9-1-1 and later met law enforcement at The Office. (12 RT 4310, 4321-4322.) 27 Dickenstestified that Dickenson came in between 8:30 p.m. and 9:00 p.m. (12 RT 4278.) *8 Later that night, at approximately 9:15 p.m., Pickens noticed heavy police activity at the bar and learned that Manuel and Tudorhad been shot to death. (11 RT 4251-4253; 12 RT 4282-4283.) ?° Respondentshall refer to the Lorman’sbytheir first name for the purposeofclarity. 16 At 9:43 p.m., Sacramento County Sheriff's Deputy Craig Norris received a call regarding suspicious circumstances atThe Office and was the first to respond at approximately 9:45 p.m. (12 RT 4336-4338.) Other law enforcementofficers arrived shortly thereafter, formed a perimeter, and entered the bar throughthe side door. (12 RT 4338-4341, 4364-4367.) After the building was cleared, Deputy Norris entered the women’s restroom and discovered two bodies, surroundedbya significant pool of blood, on the ground. (12 RT 4342-4344.) He also noticed shell casings, a bullet slug, and what appeared to be footwearprints, possibly from a smooth-soled shoe, on the ground. (12 RT 4346, 4349, 4361.) Crime scene investigators also noted smears ofblood, .45 caliber casings, expended copperslugs, anda pair of glasses in the restroom. (13 RT 4826-4827, 4845-4847, 4852-4854; 15 RT 5380-5387.) Without touching the bodies or otherwise disturbing the scene, Deputy Norris stepped out of the restroom and advised the others of what he had discovered. Paramedics later arrived, entered the restroom, and - concluded Manuel and Tudor were dead. (12 RT 4344, 4370.) Law enforcement continued to preserve the crime scene and called out homicide detectives and crime scene investigators who processed andinvestigated the scene. (12 RT 4351, 4371; 13 RT 4812-4817; 14 RT 4921.) An expended.45 caliber shell casing waslocated onthe floorto the right of the cashregister, as well as some damage to the concrete area behind the bar indicating that someonehadfired a roundinto it. (13 RT 4823, 4871-4872; 14 RT 4903.) The scene was locked, secured, and sealed on June 21, 1993, at 4:10 a.m., and the items booked into evidence. (12 RT 4372-4373; 14 RT 4888, 4928-4931.) Floyd West, the bar owner, was permitted to enter the bar a few days later, and he determined that $320 was taken from the register. (13 RT 4773-4774.) 17 F. After Robbing the Office and Murdering Manuel and Tudor, Appellant Drives to Webster’s Duplex, Unloads Evidence Against Him, and Returns to Baker’s Home Appellant arrived at Webster’s homeat approximately 10:00 p.m.” (14 RT 5002.) Steve Langford, Webster’s brother, was also there. (14 RT 5003-5004.) Appellant entered Webster’s bedroom and removedhis shirt and boots. He reached into his pants pocket, removed a large wad of cash “consistent with bar-type money,” and gave Webster $125 as paymentfor a bet he had lost. (14 RT 5004-5005, 5012-5013.) Appellant returnedthe remaining cash in his pocket and washed his arms. (14 RT 5008.) Becausethe lighting in her bedroom wasbrighter than in the living room, Webster noticed appellant’s shirt was “full of blood,” primarly on the left side, and that there was blood onhis boots. (14 RT 5006-5007.) There was no blood on his jeans. (14 RT 5014.) Shetried to wash off the blood from the boots because she had bought them for him, but appellant told her it would not comeoff. (14 RT 5006.) Webster did not ask about the blood because she wasafraid of appellant and did not want to “get slapped.” (14 RT 5008.) Appellant asked Webster to get rid of the shirt and boots and went to the dining room. (14 RT 5008-5009.) Webster madea quicktrip to the liquor store and noticed Baker’s Probe parkedin front ofher duplex. (14 RT 5010.) She returned 15 minutes later and made appellant a drink. While doing so, appellant calmly explained that he had beenat a card game in Del Paso Heights. There were eight men at the table, and he had won a hand. (14 RT5011, 5014.) | Two Black men denied him of his winnings, causing him to shoot each of them *° The quickest distance between Webster’s home and The Office was 15 minutes. (18 RT 6351, 6353-6354.) The quickest distance between Webster’s hometo the Billingsley residence was four minutes. (18 RT 6352-6353.) 18 “a couple times... .”°’ (14 RT 5012-5013.) Webster asked if the men were moving whenheleft, and appellant replied “no” and that the others had ran away. (14 RT 5012.) Appellant suddenly rememberedthat he hadleft the gun in Baker’s car, asked Websterto get it, and gave her the car keys. (14 RT 5017.) Webster retrieved a box from the front passenger’s seat. (14 RT 5017- 5018.) Langford wanted to see the gun, but appellant refused. Webster gave the box to appellant. He unloaded the gun, removed the magazine, and placed everything back into the box. (14 RT 5018, 5143.) Appellant then asked Websterto put the box away, and she placedit in a closet. (14 RT 5019-5020.) Webster changedthe subject and asked appellantifhe had a nice Father’s Day because she wascurious to know what Baker had done for him. (14 RT 5015.) Appellant stated that Baker had given him a pair of shorts and wanted to get married in Reno,but he refused. (14 RT 5015.) Hethen called Baker because it was getting late and knew hehadto get home. Webster loaned appellant a long-sleeved shirt, but could not find any shoes. (14 RT 5015-5016.) Since moving out, appellant did not have any clothing at Webster’s home. (14 RT 5141.) Appellant kissed Webster goodbye and whisperedin herear, “I probably will get caught becauseI left fingerprints.” (14 RT 5015-5016.) He also instructed her to give the gun to a “Bill Williams” when hegotout ofjailin September. (14 RT 5017.) He left Webster’s house at approximately 11:00 p.m. (14 RT 5020.) After he left, Webster placed appellant’s shirt and boots in a paper bag, went to the 3! Webstertestified that appellant had showedherthe gun as he told his story. (14 RT 5012-5013.) Shealsotestified, however, that appellant hadleft the gun in the car and had asked herto retrieve it. (14 RT 5017.) On cross-examination, Webster stated that appellant had also told her that he hadfired a “shot into the table.” (16 RT 5667.) 19 Hilltop Apartments, tossed the bag in a dumpster, and returned home. (14 RT 5020-5021.) _ Appellant arrived home at approximately 11:30 p.m. (18 RT 6089.) Baker, who was awake, wasin bed and smelled alcohol on him. (18 RT 6091.) Appellant casually told Baker that he had gone to a poker gamein Del Paso Heights and killed two Black men whotried to steal the pot from him. Baker was “flabbergasted.” (18 RT 6092.) Hecontinuedtotell Bakerthat he “deep-sixed” the gun, which she understood to mean that he had thrownit into the river. (18 RT 6107.) G. June 21, 1993, the Morning After the Office Robbery and Murders 1. Appellant Instructs Baker to Clean Her Car On the following morning, appellant told Baker he was going to Webster’s houseto help her with Social Security. problems, but to instead tell his co-workers that he wentto visit his ill mother. (18 RT 6094.) Appellantalso instructed Baker to clean her car, paying close attention to the driver’s seat, door handles, foot pedals, and steering wheel. (18 RT 6095.) Before leaving for work, Baker saw “a glop of whatappearedto be flesh or ... brain matter or something along those lines”inside of her car and wipedit off. (18 RT 6096.) Once at work, Baker cleaned the car with dry cleaning spotting chemicals, such as ammonia, and wipedthe pedals and door panel.” (18 RT 6095.) The rag turnedgreen,the color of blood whenit is mixed with ammonia, where she wiped the car down. Later that morning,appellant called Baker at workto tell her that he had “taken care 32 Oncross-examination, Baker testified that she did not clean the car seats. (18 RT 6266.) 20 of the pants.” (18 RT 6107.) She did not see appellant the rest of the day. (18 RT 6097.) 2. Webster has A Changeof Heart and Retrieves the Evidence from the Dumpster At approximately 8:00 a.m, while driving to work, Webster thought about what appellant had told her the night before, feared he would kill again, and called Sacramento Police Department Detective David Ford who she had knownfrom prior contact. (14 RT 5021-5022, 5032-5033, 5069, 5073.) Webster, who seemed upset and shaky,** told Detective Ford everything that had happenedthe night before, and he advised her to return to the dumpster, retrieve the paper bag, and deliverit to the Sheriff's Department. (14 RT 5024-5025, 5073-5076.) He found Webster credible, but reluctant to comply. (14 RT 5127, 5129.) She also described the gun as a 45 caliber silver semi-automatic. (14 RT 5128.) Webster returned home, took a footstool, went to the dumpster, retrieved the bag, and drove to the Sheriff's Department. (14 RT 5025.) Onher waythere, Webster pulled over approximately five times andcalled her friend Arlene Eshelman from various pay phone booths advising her of 33 Webster was familiar with Detective Ford because she was the subject of an investigation involving the theft of a ring. (14 RT 5023, 5070.) She returned the ring and was never formally charged; however, Detective Ford advised her that she could call him if she had any problems related to physical abuse or generally neededto talk. (14 RT 5023-5024, 5071-5072.) Detective Ford was aware that Webster had been in an abusive relationship with a Dale Michaels wherehe controlled her “to do anything that he wanted for his desires.” (14 RT 5124.) For example, Michaels and Webster would go to Tahoe, and he had her write bad checks with no intent of repaying her. (14 RT 5126-5127.) He opinedthat Webster simply wanted to be accepted and did things to help people in order to’be accepted. (14 RT 5125.) * Detective Ford described her demeanor on the telephone as “if a family memberhad that same demeanor, your heart would probably really drop and be worried.” (14 RT 5073.) 21 what had happenedthe night before and seeking advice. (14 RT 5025- 5026; 15 RT 5247-5251.) Webster seemed hysterical and in disbelief, and Eshelmantold her to turn in both the bag and appellant. (14 RT 5026; 15 RT 5249-5250.) It appeared that Webster wanted to do the nght thing.*° (15 RT 5251.) Webster also called Hobson, whoalso advised her to immediately go to the Sheriff's Department.*® (14 RT 5026; 15 RT 5284- 5288.) Webster continued driving to the sheriff’s department and, while on H Street, she saw a sheriff’s patrol car and waved down Sacramento Sheriff's Deputy Dennis Biederman. (15 RT 5027-5028, 5226-5227.) Although hesitant and reluctant, Webster asked him if there was a shooting in Del Paso Heights. (14 RT 5027-5028.) After checking his database, Deputy Biederman confirmed that there was not a shootingthere last night. (15 RT 5227-5228, 5230.) Webster told Deputy Biederman what had happened last night, that she had the shirt and boots, and described the gun as a possible .45 caliber revolver with four empty shells. (14 RT 5029.) Deputy Biederman then escorted herto the sheriff's department. (15 RT 5227- | 5231.) | 3. Webster’s Interview with Detectives Reed and Edwards At the Sheriff's Department, Webster was interviewed by Detectives Stan Reed and Darrel Edwards, the primary detectives assigned to _ 3° On cross-examination, Eshelman described Webster as “weak” and who “needed advice from other people.” (15 RT 5254.) Furthermore, although Webster sought advice,“in the long run, she’ll end up doing what she wants to do, and that’s kind of what, you know,a lot ofpeople do.” (15 RT 5255.) _ 36 On cross-examination, Hobson described Webster as “vulnerable from the onset. And you put a few drinks in her, as anybody else wouldbe, you becomea little more vulnerable to a couple ofother thingslike stupidity.” (15 RT 5296.) 22 appellant’s case. (18 RT 6335.) Webster explained that she had met appellant through a personal ad in the newspaperand that he had moved in with her a few weeks later. (23 ACT?’ 6612.) He movedout in March of 1993, and moved in with Baker, his “boss” at McKenry’s. (23 ACT 6613.) Webster was“fascinated” by criminals, and appellant shared stories about his criminal past. (23 ACT 6614.) Websterstated that appellant arrived at her homeat approximately 10:00 p.m. on June 20, 1993, and had driven Baker’s car. (23 ACT 6614- 6615.) She did notinitially notice the blood on appellant’s clothing, but did so once he entered her bedroom. While appellant washed up, Webstertried to removethe blood from his boots, but he told her to get rid of them instead. He explainedthat he had just killed two people. (23 ACT 6615.) Webster then gave the detectives $100 of the $125 appellant gave her, keeping $25 for herself.** (23 ACT 6615-6616; 14 RT 5030-5031, 5036- 5037; 18 RT 6338.) — She recounted that appellant had given her some moneyto purchase alcohol and cigarettes, which she did. (23 ACT 6616.) When she returned, appellant explained that he had been playing cards with fiveother men who denied him his winnings. (23 ACT 6617-6618.) He shot twoofthem, while the rest ran away. (23 ACT 6618.) Appellant then asked Webster to get the gun from the car, and she complied. (23 ACT 6618-6619.) He | checked how many roundshehadfired, determined it was approximately seven, and asked Webster to keep the gun. (23 ACT 6619.) Webster admitted she had the gun,but did not bring it with her and refused to turn it over because she feared forher life if it was not there upon 37 ACTrefers to the Augmented Clerk’s Transcript. 38 On cross-examination, Webster explained she needed gas money. (16 RT 5672.) 23 appellant’s return. (14 RT 5034-5035; 23 ACT 6624.) She further explained that she feared for her life because appellant had gotten into fights with both her son and former roommate since moving in with her. (23 ACT 6612, 6620, 6625.) She described appellant as an “excellent” bank robber who washired to speak at “big meetings.” (23 ACT 6622- 6623.) The detectives told Webster abouttheir investigation of The Office shootings, but she refused to believe appellant played a part. (14 RT 5035; 23 ACT 6626-6648.) The detectives made clear to Websterthat they would collect the gun from her house, and she called home to see who was there.*° (14 RT 5036-5037.) To her surprise, appellant answered the phone. Webster motionedto the detectives that appellant was on the phone, and they recorded the conversation. (14 RT 5038, 5149.) Appellant asked Websterif she had“got[ten] rid of the stuff” and confirmed that she “didn’t put it all in the sameplace ....” (14 RT 5038; 23 ACT 6759.) 4. Appellant is Arrested Later that Day; Baker Turns in Evidence and Eventually Talks to Law Enforcement Appellant arrived at Webster’s duplex at approximately 11:00 a.m., was greeted by Nivens, and watched the news. (17 RT 5979-5980, 6008.) Nivens thoughtit unusual for appellant to be at the duplex because he usually worked on Mondays. (17 RT 5979.) Nivenslater received a call from the Sheriffs Department confirming appellant’s presence inside the duplex, and appellant was arrested without incident. (17 RT 5980-5981, 5999-6000.) Additional deputies entered the duplex, temporarily restrained Nivens, but released him once they confirmed he was Webster’sson. (17 RT 5981- . >? Deputy Biederman had already given Detective Reed the boots and shirt. (15 RT 5229.) 24 5982, 6000-6001.) During a search of the master bedroom closet, Detective Reed recovered a box containing a gun,later identified as the murder weapon,a looseclip, a smaller box, an ammunition box containing 43 live rounds of CCI brand ammunition, a .45 caliber bullet of a different brand with a brass jacket, an empty magazine, and two loose rounds CCI brand .45 caliber Blazer ammunition. (16 RT 5536-5538, 5554-5567; 17 RT 6001-6006.) Detectives Reed and Edwardstransported appellant to the detective division. (17 RT 6001.) Later that day, Webster called Detective Reed because she was upset with how they had conducted the search andarrest. (14 RT 5040-5041.) She continued to question appellant’s involvement with The Office murders, which she repeatedly expressed in subsequentcalls to Detective Reed. (14 RT 5041, 5043.) Shestill loved appellant. (14 RT 5042.) She wasalso reluctant to testify because she feared for her life. Appellant once told her that he had gotten “rid” of a “former getaway driver who had snitched him off.”*° (14 RT 5044.) At somepointafter appellant’s arrest, Baker turned in a few items to the Sheriff?s department, including “stuff from Franklin Fashions Corporation,” an order form, an advertisement, hair net, and a wig. a 8 RT 6108.) These were not items appellant had initially broughtto Baker’s home,but items dropped off at McKenry’s by Webster after appellant moved out. Appellant brought them to Baker’s house, which remained there though he never used them to her knowledge. (18 RT 6109-6110.) “° Thetrial court admonishedthe jury as follows: _ Again, Ladies and Gentlemen,that’s not offered to prove the truth of the matter in the statement, that is, got nd of the [former] getaway driver; just that the statement wasmadeto her and whateffect it had on Ms. Webster. (14 RT 5044-5045.) 25 The Sheriff's Department contacted Baker shortly after appellant’s arrest because they wantedto inspect her car, but she did not wantto get involved in the investigation and withheld information. (18 RT 6098-6099, 6100-6101.) She did, however, share a conversation she had with appellant in March or April of 1993. (18 RT 6101.) Appellant, while sitting in her backyard, seemed depressed. Baker assumed he was unhappy abouttheir relationship. (18 RT 6102.) Rather, appellant explained that he wanted to commit robberies, feared getting caught, and would haveto kill any witnesses to avoid incarceration. (18 RT 6103-6104.) This angered Baker because she potentially would never see him if he were ever caught. (18 RT 6106.) She also shared that appellant had told her about a speaking engagement during an officer training session. Hetold the audience that he would kill any witnesses. He seemed happy and proud about the speaking engagementandfelt like he was “putting one over on the ... system.” (18 RT 6105.) | | H. Additional Evidence Collected During the Investigation 1. Autopsies” On June 21, 1993, expert forensic pathologist Gregory Reiber, M_D.., conducted autopsies on Tudor and Manuel. (12 RT 4400, 4405.) Tudor wasthirty-nine yearsof age, six feet and three and one-half inchestall, and weighed just over two hundred poundsatthe time of his death. During his external examination, Dr. Reiber found two perforated gunshot wounds in Tudor’s head, one of which wasfatal, a half-inch bruise on the left elbow, a small abrasion on the left forearm, and a small scrape on the right side of | the head. (12 RT 4407, 4426-4427.) Tudor had no defensive wounds and was mostlikely in a kneeling or crouchingposition at the time the wounds were inflicted. (12 RT 4407-4408, 4431-4432.) 26 Manuelwasseventy-one years of age, five feet and five inchestall, and weighed one hundredandthirty-four poundsat the time of her death. (12 RT 4437.) Findings from Dr. Reiber’s external examination also included two perforated gunshot wounds, both of which werepotentially fatal, and a small bruise nearherleft wrist. (12 RT 4438, 4446-4447.) Manuelalso did not have any defensive woundsand could haveeither been standing or crouchingat the time the wounds wereinflicted. (12 RT 4438, 4448.) For both Tudor and Manuel, Dr. Reiber was unable to determine whichof the two gunshot wounds camefirst, but opined that noneofthe woundswereinflicted post-mortem. (12 RT 4410-4411, 4440-4441.) The wounds wereinflicted at close range, between one and six inches, and by a typical handgunofat least a .38 caliber. (12 RT 4413-4414, 4442-4443 ) The woundswere consistent with having been inflicted with a .45 caliber semi-automatic handgun. (12 RT 4414.) 2. Latent Prints On June 22, 1993, The Office was processedfor latent prints. (15 RT 5328-5329.) Twolatent prints were found on the left side of the cash register, one of which belonged to Manuel, and an additionaltwolatent | prints were found onthe black register tray. (15 RT 5336, 5374.) The Remmington .45 caliber handgun, a box of ammunition, twolive rounds, one metal magazine, one cardboard box with “ColumbiaHouse”printed on the side, and a paper bag were also processed for prints. (15 RT 5338- 5339.) Eight latent prints were found on the brown Columbia House cardboard box and paper bag. (15 RT 5339-5341.) Webster’s left thumb print and left palm print were found on the box. (15 RT 5377-5378, 5380.) Appellant’s prints were not found on the handgun, boxes, paper bag, or other items associated with the gun. (15 RT 5379.) Six latent prints were 27 found in the women’srestroom. (15 RT 5369.) Noneofthe prints resulted in a positive comparison to appellant’s prints. (15 RT 5373.) 3. Baker’s Car On June 23, 1993, Baker’s Ford Probe was inspected for bodily fluids.. (15 RT 5448-5450.) A small amount ofhuman blood was detected on the gear shift knob and steering wheel. (15 RT 5451, 5453-5454, 5457-5458.) The remaininginterior of the car was negative for the presence ofhuman blood.*! (15 RT 5458-5459.) The gun and cowboy boots were positive for human blood. (15 RT 5477-5482.) The blood type on the boots was consistent with that of Manuel’s and Tudor’s assuming multiple sources for the blood. Appellant would be excluded as a source of the blood onthe boots.” (16 RT 5482, 5493-5495.) The blood type on the boots was consistent with that of Manuel’s assuming a single source for the blood. (16 RT 5482-5483.) Theshirt also tested positive for human blood. While numerous blood stains were present, the stains were confined mainly to the left side of the shirt. (16 RT 5483-5484.) Assuming a single source of blood, the samples taken from theleft front of the shirt resulted in Manuel being a possible source of the blood. (16 RT 5485.) Assuminga dual source of blood, both Manuel and Tudorwerepossible sourcesof the blood. a 6 RT 5485-5486.) | *! Cleaning the area would removethe presence ofhuman blood causing theinability to detect it. (15 RT 5461.) ” Theparties stipulated the blood samples were taken from appellant, Manuel, and Tudor in a medically approved fashion and were received by criminalist Mary Hansen. (15 RT 5490-5491.) The autopsy revealedthat, at the time of death, Manuel and Tudor had blood alcohol levels of .10 and .20, respectively. (15 RT 5490-5491.) 28 4. Additional Interviews a. Sue Burlingame Detective Edwards and Reed interviewed Burlingame on June 22, 1993. (17 RT 5871-5872, 5875.) Stacey Billingsley was also present. (17 RT 5872.) Burlingame explained that she first met appellant when she discovered him sleeping on the couch the Sunday before the murders. (Aug. CT of 11/10/09 Appendix B at pp. 5-6.) They spent mostof the morning talking. (Aug. CT of 11/10/09 Appendix B at pp. 6-7.) Later that morning, Burlingame cleaned the house and found a box containing a gun and bullets underneath the couch. (Aug. CT of 11/10/09 Appendix B at pp. 22-23; 17 RT 5874.) She told Greg about the gun, and he took it. (Aug. CT of 11/10/09 Appendix B at pp. 24, 26, 32.) Burlingame described the gun assilver, with a black “triangle thing.” (Aug. CT of 11/10/09 Appendix B at pp. 24-25; 17 RT 5877-5878.) Burlingame and appellant went to The Office at approximately 7:00 p.m., and returned home by 1:30 a.m. (Aug. CT of 11/10/09 Appendix B at pp 6-7.) The following day, Burlingamelearnedthat appellant had decided to reconcile with Baker. (Aug. CT of 11/10/09 Appendix at pp. 7-8.) She talked to appellant later that week, and he wanted to keep their upcomingplans to play pool on Sunday. (Aug. CT of 11/10/09 Appendix B at p. 8.) On Sunday, June 20, 1993, appellant picked her up in Baker’scar, and they arrived at The Office 15 minutes laterat approximately 4:00 p.m.% * The quickest distance between the Billingsley residence and The Office was 14 minutes. (18 RT 6353.) The Chicago Bulls played the Phoenix Suns in gamesix of the NBA Championship Series on June 20, 1993. The scheduled broadcast wasat 4:00 p.m. (18 RT 6362.) © 29 (Aug. CT of 11/10/09 Appendix B at pp. 8-11.) Whenthey left The Office approximately after 7:00 p.m., the only people left at the bar was the bartender and a “gentlemanat the bar.” (Aug. CT of 11/10/09 Appendix B at pp. 13-17.) Appellant seemed angry about being “broke”andstated that the bank “had ripped him off for thirty dollars cuz they said he was overdrawn andthat he wastaking all of his moneyout of the bank account.” (Aug. CT of 11/10/09 Appendix B at pp. 29-30, 35-37.) Appellant dropped Burlingameoff at a Dairy Queen nearher houseandleft because he had “somethings to do.” (Aug. CT of 11/10/09 Appendix B at pp. 17-18.) Appellant dropped her off between 7:15 pm and 7:30 p.m., and Burlingame was homeby 8:30 p.m. (Aug. CT of 11/10/09 Appendix B at pp. 19-20.) | Later that afternoon,after the interview, Detective Edwardscalled Burlingame and asked whatappellant wore the evening of June 20, 1993. She stated that he wore a light maroon short-sleeved button downshirt, jeans, and tan leather boots. The call was made.after having received the clothing from Webster. (17 RT 5879-5880.) b. Tracy Grimes On June 30, 1993, sheriffs deputies contacted Grimes by phonefor additional information about the night of the murders. (11 RT 4180-4181, 4209.) He described appellant as having short, combed back grayhair, gray cowboyboots,jeans,andin his early fifties. (11 RT 4209.) Approximately eight or nine months later, Grimes saw a photographof appellant in the Sacramento Bee and recognized him as the bar patron at the pool table from the evening of June 20, 1993.“ (11 RT 4181-4182.) “4 On cross-examination, Grimestestified that appellant’s photographappeared onthe front page of the March 18, 1994,issue of the Sacramento Bee. (11 RT 4208.) Grimes was not shown any photographs (continued...) 30 I. Defense 1. Expert Testimony Peter D. Barnett, expert consulting criminalist with an emphasis in blood spatter andballistics analysis, became involved in the case on February 17, 1994. (19 RT 6381, 6384, 6405-6406.) He conducted a numberoftests on behalf of the defense, including a ballistics experiment on the .45 caliber automatic weapon to determine how fast it cooled after having been fired. (19 RT 6410-6414, 6416.) Bamett fired five or six rounds within two or three seconds and concludedthat it had reached ambient temperatures within fifteen or twenty minutes. (19 RT 6416- 6417.) Barnett also conducted an experiment using Nu-Skin,a first-aid preparation intended to be used for minor injuries. (19 RT 6420.) Barnett applied Nu-Skin overhis fingertips in an attempt to conceal his fingerprints. (19 RT 6420-6421.) He opined that the use ofNu-Skin was not “a very good way ofhiding your fingerprints.” (19 RT 6424.) Even with the use ofNu-Skin, sufficient ridge detail was evident on the impressions. (19 RT 6423.) In addition, Barnett conducted an experiment with blood with ammonia. Whenblooddissolved in the ammonia, the results were a reddish brownsolution. (19 RT 6511.) The blood did not turn green. (19 RT 6512.) Finally, Barnett reviewed the blood spatter patterns from the crime scene and on other items-of evidence such as the clothing. (19 RT 6432- 6433.) Blood maybeleft at a crime scene a numberofdifferent ways. (...continued) | of appellant at the time he was contacted by the law enforcement. (11 RT 4210.) 31 First, blood may simply be released by the bodyasa result of the injury. Second,“blood mayalso be propelled from a bloody object as a result of forces that are applied to that object during the incident that’s occurred.” (19 RT 6434.) The rate at which blood can be propelled is characterized as high, medium, and low velocity blood spatter. (19 RT 6435-6436.) Third, “blood transfer” is where bloody objects come into contact with one another. (19 RT 6436.) Depending on the numberoftimes an item is touched, it may result in primary and secondary transfers. (19 RT 6437- 6438.) Barnett opined that the shooting occurred in the restroom. (19 RT 6478.) He explained however, with respect to the source of the blood found in the women’srestroom,the blood did not get there from the position that the bodies were found atthe crime scene, but rather at some point the bodies were in “different position[s] after they were injured to cause the blood to get to that position.”” (19 RT 6449-6450, 6455-6459, 6473, 6483.) Barnett also examined appellant’s cowboy boots and noted the right boot had morestains than the left. (19 RT 6493-6494.) There was a fairly large blood stain overthe toe of the right boot with smaller spatters on the instep on the upper shoe and the heel block. (19 RT 6494.) Thelarge stain - was a transfer for which Barnett had no explanation for its presence. (19 RT 6495.) With the exception ofthe blood spatter on the upper area ofthe boot, he could not connect the blood spatter on the boots with anything he had observed from the crime scene.*° (19 RT 6495-6496.) Theleft boot — * Barnett stated, “[t]he blood spatter just tells us quite clearly that that’s what happened. I mean, I’m not sure I can say anything much more than that.” (19 RT 6483.) “ Barnett testified that the blood spatter on the upper boot could have gotten there if someone stood near the trash can where spatter (continued...) 32 had a few small blood spatters resulting from a medium velocity event, 1.e., kicked, flungoff a finger, etc., and not from a gunshot wound. (19 RT 6499-6500.) Barnett was unable to explain what, at the crime scene, could have accountedfor the bloodstains on the boots. (19 RT 6501.) He opined that blood stains were not found high on the upperpart of the boots because it was coveredby pant cuffs.*’ (19 RT 6505.) He also concludedthat shoe impressions found in the blood were not created by appellant’s boots. (19 RT 6454-6455.) Additionally, the length ofa person’s stride does not necessarily corrolate with the person’s height. (19 RT 6482.) With respect to the blood stains found on the shirt, a series of blood stains were alongthe left front of the shirt, including heavy bloodstains on the left sleeve. There was also a seriesof large bloodstains running down the left back of the shirt. Small stains were on the right front of the shirt, which he described as “projected”or “falling” blood. (19 RT 6488.) The bloodstain on the front pocket area “show a direction from left to right.” (19 RT 6488-6489.) Other than being perpendicular to the shirt, the back bloodstain did not show much direction, which wastypical of blood on garments, butit was clear that the blood hit the shirt “directly from behind.” (19 RT 6489.) The bloodstain on the sleeve was a contact transfer with a “fairly bloody object and the blood basically soaked into this.” (19 RT 6490.) A bloodstain extendedall the way downto the shirt tail. (19 RT 6491.) (...continued) occurred, but he explained that there was no evidenceto indicate that anyone wasstanding there. (19 RT 6496-6497.) “” On cross-examination, Barnett agreed that it may have been fortuitous that the blood simply did not go higher on the bootor get on the jeans. (19 RT 6539.) 33 Based on Barnett’s understanding of the crime scene,its condition, and his analysis of the shirt, he could not account for the bloodstains on the shirt solely on the basis of the shooting of the two victims. At close range, Barnett explained that some blood spatter can be expected under certain conditions. (19 RT 6491.) He could neither accountfor the large transfer on the left sleeve nor the stains on the back ofthe shirt as far as it being caused bythe shooting. (19 RT 6492.) He concluded, “there is nothing on the shirt that would allow you to conclude that the person wearing this shirt shot anybody.” (19 RT 6492.) With respect to Barnett’s observations of both the boots and the shirt, he concluded that the blood stains did not result from the shooting itself but rather after the victims were shot. (19 RT 6505-6506.) Barnett would not be surprised to find blood on the pants of the person wearingthe shirt and boots andcould think of no reason whythe | blood stains would stop atthe shirt tail. (19 RT 6503, 6505.) He found no physical evidence connecting the blood on the shirt with the blood onthe boots. (19 RT 6503-6504.) Healso opined that he would not expect tissue from the victim to have contact with the shootereven in a contact shooting situation.** (19 RT 6510-6511.) He also would not expect the shooter to be covered in blood simply as a result from the shooting. (19 RT 6515.) 2. June 20, 1993 OnJune 20, 1993, Baker and hersister, Loureen Gilmore, had been shopping all day. (20 RT 6798.) Upontheir return home, appellant, who 48 On cross-examination, Barnett agreed that there was a reasonable possibility of a tissue transfer as a result of the individual’s actions,i.e., being moved and/or touched by the shooter. (19 RT 6535-6536.) 34 lived with Baker, took the car and immediately left. “’ (20 RT 6799, 6800- 6801.) Baker’s Ford Probe wasfourteen feet and seven inches (175 inches) in length. (20 RT 6822-6823.) Sacramento County Sheriff's Deputy Elizabeth Sawyer responded to The Office at approximately 9:50 p.m., and interviewed Dickenson. (21 RT 7137-7138.) She recounted that evening’s events and then discussed the vehicles in the parking lot. (21 RT 7139-7140.) Dickenson did not affirmatively indicate whether she saw any unfamiliar vehicles. (21 RT 7140-7141.) Langford testified for appellant. Later that evening, appellant arrived at Webster’s duplex between 10:00 p.m. and 10:45 p.m.! (20 RT 6696- 6697.) Langford was watching television and opened the door for appellant - who looked for Webster.” (20 RT 6697.) Langford knocked on Webster’s bedroom doorandtold her appellant was there to see her. She agreed.>> (20 RT 6698.) Appellant wore light colored pants, a yellow shirt, and cowboyboots. He had “somethingplasteredall over his clothes,” including his pants. (20 RT 6699, 6713.) Appellant entered Webster’s room and closed the door behind him. (20 RT6700.) After approximately 15 *° On cross-examination, Gilmoretestified that, while living with Baker, appellant had bragged about his past robberies. (20 RT 6808.) °° A 1977 Camero measured 195 inches. (20 RT 6824-6825.) °! The distance between Webster’s home at 5944 BourbonStreet and The Office measured 14.7 miles, and the locations were approximately 25 minutes away from each other. (20 RT 6835-6838.) *? Langford lived with Websterin June of 1993. (20 RT 6692- 6693 .) Appellant once lived with them as well. (20 RT 6693.) Langford did not notice any of appellant’s clothes in the duplex after he movedout, and appellant never kept any clothing in his bedroom. (20 RT 6696.) °3 On cross-examination, Langfordclarified that appellant had followed him inside the duplex. (20 RT 6717.) 35 minutes, appellant emerged in different clothing, possibly blue jeans, a T- shirt, and tennis shoes. (20 RT 6700-6701.) Appellant explained that he had shot two “colored people”at a card gamein either Del Paso Heights or off Del Paso Boulevard. (20 RT 6701.) Appellant asked Websterto retrieve the gun from Baker’s car, which she did. ** (20 RT 6702.) Webster brought the gun inside the duplex, and Langford asked to look at it. He could feel the warmth radiating from the barrel, indicating to him that the gun had recently been fired, and decided ~ against touching the gun. (20 RT 6704.) The gun wasin a box, whichalso included a rag or newspapers. (20 RT 6707-6708.) Langford turnedoff the television and went to bed. (20 RT 6707.) He heard the front door open and then close approximately five or ten minutes after he went to bed. (20 RT 6708-6709.) | Onthe following morning, on June 21, 1993, Gilmore asked appellant if he wanteda ride to work, and he said that he was goingto visit his mother. (20 RT 6803.) Instead, appellant went to Webster’s house and watched the news.”” Langford, his young son, and Nivens were home,but not Webster. (20 RT 6709-6711.) Later that morning, Webstercalled the duplex wanting to know if Langford was home andadvisedthat he should leave. (20 RT 6712.) When Langford returned, no one was home. (20 RT 6713.) : | Langford explainedthat, at the time he was interviewed by Detective Reed, he mistakenly believed that he had retrieved the gun from the car on that date, but stated that he had onceretrieved the gun for appellant on a different occasion prior to June 20, 1993. (20 RT 6703.) On cross-examination, he clarified that approximately one month before the shooting, he had picked up appellant from work, and appellant showed him the .45 automatic that he planned to purchase. (20 RT 6720-6721.) > On June 21, 1993, there were nolocal newslistings between the hours of 9:00 a.m. and 12:00 p.m. (20 RT 6825-6826.) 36 3. Appellant was Gainfully Employed and Allegedly not in Financial Need Appellant was employed by McKenry’sas a presser and counter help. Hewastypically at the cleaner’s with Baker on Saturdays, but never worked alone. (20 RT 6757-6758.) The Saturday shift employee was paid $40 from that day’s register. (20 RT 6758.) The employees, including appellant, had a key to the store and access to the safes. (20 RT 6759- 6760.) At most, the safe contained $250 on a Saturday night assuming no deposits were madethat day. (20 RT 6765.) The parties stipulated that appellant’s payroll checks from March5, 1993, through June 21, 1993, were directly deposited into his bank account. (20 RT 6770-6771.) On June 18, 1993, appellant withdrew $428.53 from his bank account. (20 RT 6785.) The account was closed on August 4, 1993, with just under $200 in the account. (20 RT 6786-6787.) . . 4. Evidence attacking Webster’s credibility In June of 1991, Sacramento County established a permanent conservatorship for Clyde Miller, an individual who received homecare from Webster, prohibiting him from entering into any financial contracts ‘over $50. (20 RT 6773-6774.) An attempt to cash two checkstotaling $8,000 was madeat Wells Fargo Bank on Miller’s account, which was then reported to the County. (20 RT 6775, 6790-6795.) On June 21, 1991, Sacramento County Deputy Public Guardian Joan Cooneyreceived a very angry and hostile call from a “Mary Webster.” (20 RT 6775-6778.) Webster demandedthat the stop payment be removed from the checks, but Deputy Cooney refused. Webster verbally abused Deputy Cooney and hung up on her. (20 RT 6777.) | 37 Dale Michels’ was Webster’s long-time friend who once lived with her. (20 RT 6874-6875.) Michels also knew Miller because Miller washis grandfather’s best friend. (20 RT 6875.) Webster took a wedding ring set from Miller, but Michels encouraged herto return the set. (20 RT 6875- 6876.) He also went to Tahoe with Webster, and she wrote checksfor her ownpersonaluse, but never for him. (20 RT 6878.) J. Rebuttal | 1. Appellant’s Interview with Detectives Reed and Edwards Detective Reed interviewed appellant on the afternoon of June 21, 1993. (Aug. CT of 11/10/09 Appendix A at p. 1; 21 RT 7251.) Appellant was aware of The Office double homicide because he had seen it on the newsearlier that morning. (Aug. CT of 11/10/09 Appendix A at p. 5; 21 RT 7252.) He wasat The Office with Burlingamea week before the murders. (Aug. CT of 11/10/09 Appendix A at pp. 6-7.) Appellant was again at The Office with Burlingame onthe night of the murders until about 7:00 p.m. (Aug. CT of 11/10/09 Appendix A at p. 4; 21 RT 7252-7253.) Hereturned to The Office alone to play pool where hestayed until 9:00 p.m. when the “barmaid” announced she would be closing the bar soon. (Aug. CT of 11/10/09 Appendix A at pp. 4-5; 21 RT 7253-7254.) One other man, who seemed to know the bartender, sat at the counter. (Aug. CT of 11/10/09 Appendix A at pp. 5-6.) Appellant drove Baker’s car that | night. (Aug. CT of 11/10/09 Appendix Aat p. 8; 21 RT 7255.) After leaving The Office, appellant drank a bottle of Kessler in the car, wentto Webster’s house where he drank and smoked, and returned to Baker’s °6 Michels suffered felony convictions for assault with the intent to rape and spousal abuse. (20 RT 6878.) On cross-examination, Michels admitted to also suffering a felony conviction for writing checks for nonsufficient funds. (20 RT 6881.) 38 house by midnight. (Aug. CT of 11/10/09 Appendix A at pp. 7-10.) Appellant missed work on Mondaydueto a.hangover, but managed to walk to Webster’s house because they planned to go to the Social Security office together. (Aug. CT of 11/10/09 Appendix A at pp. 10-11.) Whenaskedaboutthe clothing delivered by Webster, appellant replied, “I guess you’ll have to talk to Mary aboutthat.” (Aug. CT of 11/10/09 Appendix A at p. 11; 21 RT 7255-7256.) Appellant explained, however,that the blood on the shirt was his from shaving andthat “the People werealive whenI left the bar.” The lack of marks or abrasions on his face was dueto the fact that he “healed fast.” (Aug. CT of 11/10/09 Appendix A at pp. 18-19, 23; 21 RT 7256-7257.) He denied that the gun found at Webster’s house belonged to him or that he committed the murders. (Aug. CT of 11/10/09 Appendix A at pp. 11, 18, 22, 29.) He did, however, unload the gun for Webster because she told him it was “jammed.” (Aug. CT of 11/10/09 Appendix A at pp. 30-31, 36.) 2. Other Rebuttal Evidence William Gilmore, Brian Weber, Laureen Gilmore, and Jerri Baker did not sustain injuries that would have caused bleeding in Baker’s car. (20 RT 7145, 7149, 7153, 7175, 7162-7163.) The solution used by Bakerto clean the blood from hercar consisted of two parts industrial strength ammonia, one part Streetex, a pre-spotting soap typically used by those in the dry cleaning industry, and one part water. (20 RT 7163-7166.) This solution was usedto treat protein stains, including bodily fluids, and turns bloodinto an olive green color. (20 RT 7166-7168, 7172.) Sacramento County Sheriff's Departmentidentification technician Cantrell photographed Defense Exhibit FF-5 to depict where the evidence was recovered, including blood samples, shell casings, and projectiles in the women’s restroom. Although a shoeprint was depicted in the photo,it wasnot intended to be the focus of the photograph and wasleft by a 39 morgue employee while moving the bodies. (21 RT 7179-7183.) The shoe print did not exist prior to the removal of the bodies. (21 RT 7194.) K. Penalty Phase 1. Prosecution a. The Victims Lulu Manuel, Val’s daughter-in-law,testified that Val worked at The Office to supplement her Social Security checks.°’ (23 RT 7727, 7729.) Val cared for her adult son, Steven, who was unhealthy and completely dependent on her. (23 RT 7729.) Val was a “very loving woman,” who was “the first one to volunteer to put together improptu parties [and] cook for friends who wereill.” She checked on neighbors and madesure they always had food to eat. (23 RT 7730.) Herloss has. resulted in Steven becoming dependent upon Lulu. Val’s three other sons have withdrawn and suffered a deep loss. (23 RT 7732-7733.) Gary wasthe third of four children to Elizabeth Tudor. (24 RT. 7894-7895.) At the time of his death, Gary lived with his parents, saw them everyday, and was very close to them. He was once married and had | three children, but divorced approximately one yearafter the marriage. (24 RT 7895-7896.) At approximately 4:30 a.m. onthe day after the murder, Elizabeth received a phone call asking her to meet officers outside her home. She wasnotified that Gary and Val had been murdered at The Office. Gary’s death was devastating to his children, and they continue to receive counseling as a result of his death. (24 RT 7896-7897.) His death wasespecially hard for his oldest son, who was 15 years of age at the time °7 Respondent shall refer to Lulu and Val by first namefor the purposeofclarity. °8 Again, Respondentshall refer to Gary and Elizabeth byfirst name for the purposeofclarity. 40 of trial, because he was close to Gary. (24 RT 7897.) The loss was also very hard for Gary’s father who wasalready in poor health. (24 RT 7897.) b. Appellant’s Prior Convictions Appellant suffered the following out-of-state prior convictions: (1) a 1958 second degree burglary; (2) a 1963 burglary; (3) a 1965 escape; and (4) a 1967 second degree burglary. (23 RT 7723.) In Sacramento County, appellant suffered the following prior convictions: (1) a 1975 first degree robbery for which he wasreleased on parole on March 1, 1978; and (2) a 1979 assault with a deadly weapon,oral copulation, rape, robbery, and attempted rape (27 counts total) for which he received a sentence of approximately 34 years in state prison. (23 RT 7719-7721, 7724.) Appellant was paroled back to the Sacramento area on October 10, 1991, and discharged from parole on April 8, 1993. (23 RT 7726.) i. Sally Gomez On August 7, 1978, Sally Gomez and Dolores Cook worked as salesclerks at Stockmen’s, a western store. (23 RT 7734-7737, 7750.) At the time, Gomez had been married for 20 yearsand had three teenaged children. (23 RT 7735.) At noon, appellant entered the store and told Gomezthat he wasinterested in a pair of boots. (23 RT 7737, 7742-7743, 7751.) Appellant tried on a pair of boots,did not purchase them,and stated he would return later. Gomez began putting the boots away,butfelt a “funny feeling because he wasstill standing there.” (23 RT 7738.) After returning the boots to the shelf and making her way backto the front of the store, appellant “jerked” her by the hair and “shoved”a gun into her mouth, causing multiple cuts. (23 RT 7738-7739.) He pulled her to a secluded part of the store and warned that he would blow her head off if she made a sound. Appellant struck her overthe eye with the gun causingherto fall. (23 RT 7739.) She pretended to be unconsciousas he repeatedly ordered 41 her to stand up. He kicked heron the side with his boots. (23 RT 7740.) Cookcalled out for Gomez, and appellant got her. (23 RT 7741, 7752.) He threatened to “blow” Cook’s head off, but Cook explained that she needed to help Gomez. (23 RT 7742, 7752-7753.) Appellant asked Cook if there was any moneyin the store, and she stated it was in the register. (23 RT 7753-7754.) Cook openedthe register and gave appellantall the bills. He reached in and also took the coins. (23 - RT 7754.) A car with customers pulled up as Cooktried to help Gomez from the ground. Appellant ordered Cookto get rid of them and took Gomez into another room. (23 RT 7743, 7757.) With the gun pointed at Gomez’s temple, appellant ordered herto be silent and made her kneel on the floor. (23 RT 7744.) He threatened to blow her headoff if she did not orally copulate him. She complied, but he stopped her and madeherpull her pants down. Hestatedthat “if [she] didn’t doit right, [she] wasn’t going to see another F’ ing day.” Appellant raped her and had herpull her pants back up. (23 RT 7745.) After helping the customerandsecretly asking herto call the police, Cook returned to the room, and appellant made them sit down: (23 RT 7745-7746, 7157-7759.) Hetold them if they identified ortestified against him, he would look for them and thenleft the store. (23 RT 7746, 7760.) Gomezwashysterical. She vomited and spat on the ground. (23 RT 7759-7760, 7762.) Gomez received medical treatment, including a rape examination. (23 RT 7747-7748.) Her marriage endedin divorceas a result of the rape. (23 RT 7748.) Cook was unable to be alone and waspetrified for six months. (23 RT 7760.) | ii. Bettie Hershey On August 15, 1978, Bettie Hershey workedas the store managerat Groth’s, a shoe store located in the Southgate Shopping Center. (23 RT 7764-7765.) Hershey was divorced at the time and supported her four | children. (23 RT 7766.) While working at the store alone, appellant 42 entered and askedto try on a pair of shoes. Hershey walked to the back room to retrieve the shoes and felt him following her. She turned around, and appellant showed her a gun. Hegrabbedher by thehair, put the gun to her head, and threatened to blow her head off if she screamed. (23 RT 7767, 7769.) Appellant ordered Hershey to lock the front door, but she was unable to keep a steady hand dueto her fear and asked appellant to lock it. Heattemptedto lock it, but unbeknownstto him, did not successfully do so. Hershey was unableto stand, and appellant held her up by her ponytail. (23 RT 7768.) He draggedherto the register, and she placed the moneyinto a paper bag dropping someofthe pennies. Appellant wanted the pennies and madeher pick them up. Appellant took $35. (23 RT 7770.) Hershey asked him what he was goingto doto her, and hesaid, “pussy or blow job.” He “made [her] undo hisbelt and his trousers, and [she] had to orally copulate him.” Appellant poked Hershey with the gun and seemed to enjoy the pain it caused her. He seemed impatient, turned her over, and raped her. (23 RT 7771.) He taped her hands,legs, and feet together, took her to the back room,andshe fell to the floor. (23 RT 7772.) He taped her mouth shut and orderd herto close her eyes. Hershey believed appellant was goingto kill her and refused to close her eyes. Appellantstomped on her face with his cowboy boots, told her that he had her wallet and address, and wouldkill her children if he saw this on the news. He took a dollar from Hershey’s wallet and her keys. (23 RT 7773- 7774.) After appellant left, Hershey freed herself and called the sheriff's department. (23 RT 7774.) She received medical treatment, including a rape examination. (23 RT 7774-7775.) Hershey underwenttherapy, had anxiety attacks, could not be alone,andlost her job as a result of appellant’s attack. (23 RT 7775-7776.) 43 iii. Virginia Parker On August 22, 1978, Virginia Parker owned Morebeck’s flower shop, located in downtown Sacramento, and had two children. (23 RT 7789- 7790.) At 2:00 p.m., appellant entered her shop stating that he needed a plant for his wife. (23 RT 7791-7792.) Appellantleft the store, but returned and announcedthat“this [was] a robbery.” (23 RT 7792-7793.) Appellant had a gun and ordered her downto the ground. (23 RT 7793.) Hetaped her legs and ankles together and asked her what kind of watch she wore. (23 RT 7794-7795.) She could not remember, and appellant hit her face and threw heracross the room. (23 RT 7795.) Appellant took her watch and rings. Appellant reached underneath Parker’s dress and gave her a choice between rape or oral copulation. (23 RT 7796.) Parker warned of customers entering the store, and he asked her where she kept the money. . She told him, and he took the money. Heput the gun to her head,told her not to scream or he wouldkill her, and left the store. (23 RT 7797) Parker wasable to get help and police officers arrived shortly thereafter. (23 RT 7798-7799.) As a result of the attack, Parker learned how to shoot a gun and slept with one underherpillow for approximately two years. (23 RT 7799-7800.) iv. Dolores Ogburn On August 15, 1974, Dolores Ogburn worked as a waitress and cashier at Little Joe’s, an all night steak house in Sacramento. (23 RT 7801-7802.) Ogburn arrivedat the restaurant at approximately 10:00 p.m., and appellant was already there with another man. (23 RT 7803-7804.) Appellant’s party left around midnight, but he stayed behind. At approximately 4:20 a.m., appellant approached Ogburn with a steak knife and stabbed her in the arm whenshetried to get around him. (23 RT 7804- 7805.) He punchedheron the head causingherto fall to the floor. (23 RT 44 7805.) Appellant went to the register, removed some money, grabbed and threw aroundthe other employee workingthat night, and left the store. (23 RT 7805-7807.) Vv. Patricia Jones On September6, 1978, at approximately 10:00 a.m., Patricia Jones was employed at Willow Tree, a ladies dress shop, located in Sacramento County, and opened the store for business. (23 RT 7808, 7810.) At the time, Jones was married to a California HighwayPatrol officer and had three children. (23 RT 7809.) She noticed two mensitting in a parkedcar, whichshe thought was “oddat that time in the morning.” (23 RT 7810.) Within a minute of opening the store, appellant walked in and asked to see a pair of ladies slacks. (23 RT 7811-7812.) Appellant followed her as she wentto get the slacks, placed a gun to the back of her head, and ordered her to walk to the back room. (23 RT 7812-7813.) He ordered Jones to get on the floor and tied her hands behind her back andalsotied her feet together. Appellant stated that “he wanted to have some pussy”or for Jones to “suck his dick.” (23 RT 7813.) Jones did not want appellant touching her, so she choose oral copulation. Appellant propped her up against the wall. “Nothing” happened, and appellant, who wasupset, hit Jones on both sides of her face with his hands causing herto lose her balance andhit her head against the door. (23 RT 7814-7815.) Appellant took her jewelry, including her wedding rings which she had never removedfor 25 years, and billfold which contained personal and identifying information. (23 RT 7815.) He also took money from the cashregister. (23 RT 7816.) Appellantleft, and Jones called for help and received medicalassistance. (23 RT 7817-7818.) 45 vi. Tennye Pettinato On August 30, 1978, Tennye Pettinato owned Andrea’s Casuals, a women’s clothing store, located in Sacramento, and wasthere alone that _afternoon. (24 RT 7884-7885.) At approximately 2:00 p.m., appellant entered the store and asked to look at a women’s jumpsuitin a particular size. (24 RT 7886-7887.) Pettinato believed appellant wasa transvestite whohad asked for the wrong size. (24 RT 7887-7888.) As she showed him various jumpsuits, appellant pulled out a gun and orderedherto the back room. She offered him all the money in the register, but he refused and tied her up with rope he hadin his pocket and gagged her. (24 RT 7888-7889.) Appellant took her jewelry and the money from the register and left. (24 RT 7890-7891.) Eventually, the shopkeeper next door came to her aid and officers were at the scene within five minutes. (24 RT 7891.) Theincidentfrightened her family and causedherto stop trusting men. She also did not renew her commercial lease. (24 RT 7892.) Pettinato was very nervousabouttestifying and developed shingles priorto trial. (24 RT 7892-7893.) 2. Defense In 1960, Dode Hall got to know appellant while both were incarcerated at the Indiana State Reformatory. (24 RT 7928-7929.) Atthe time, Caucasian inmates had problemsat the Reformatory and faced sodomy or rape. (24 RT 7930.) Hall was released from the Reformatory in 1966 and reconnected with appellant in Indiana during the following year. (24 RT 7931.) In 1974, Hall assisted appellant in a robbery by driving the getaway car. (24 RT 7932.) Appellant was a “braggart” who “alwaysliked to be the star, okay,the show,pointofattention.” (24 RT 7934.) Appellant had a reputation of being a “hood.” (24 RT 7927-7928.) Hall never met appellant’s father, but 46 described his motheras an elderly andreligious, but very likeable, woman. He met two ofappellant’s other brothers while in the penitentiary. (24 RT 7934-7935.) Appellant came from a poor family. (24 RT 7935.) Appellant wasa heavy drinker and sometimesgot into trouble while drunk. (24 RT . 7937.) Appellant seemed to get along with his first wife, Diane, and they committed crimes together. (24 RT 7939.) Hall heard again from appellant in the late eighties or early nineties, while appellant wasin California. (24 RT 7940.) Appellant explained that he workedat a dry cleaning business, wasliving with someone, and wastight on money. (24 RT 7941.) Jerry Stokes first met appellant at Knox County Orphanage in Vincennes, Indiana in 1954, when they were approximately 13 years old. (24 RT 7970.) The oprhanage was “hell,” and they often times ran away together. (24 RT 7971-7972.) The owners, Mr. and Mrs. Summers, beat the children and would throw them in hot water. (24 RT 7973.) Their son, Billy Jack, visited the orphanage and physically and sexually abused appellant and another boy. (24 RT 7973-7975.) Appellant’s mother was “fanatically religious,” but a good woman. (24 RT 7977.) Appellant’s father, a truck driver, was largely absent from the homeand sexually abused appellant when he was there. (24 RT 7978-7979.) Appellant began drinking at an early age and was “twodifferent people” when sober versus drunk. (24 RT 7980-7981.) Appellant was mean while drunk. (24 RT 7981.) When sober, however, appellant did kind things such as give awayall the moneyhe had stolen. (24 RT 7982-7983.) Stokes and appellant were incarcerated together at the Pendleton Correctional Facility as young adults. (24 RT 7984-7985.) Appellant was knownas “Tweetie Bird” and sexually assaulted by other Pendleton inmates. (24 RT 7985- 7986.) Dennis Barnes, an inmate at Folsom State Prison for attempted murder,first met appellant there in 1984. (24 RT 8051-8052.) Appellant 47 workedin the laundry facility and was considered a good worker who never caused problems. (25 RT 8225, 8230, 8236, 8238-8239, 8242.) At the time, the prison experienced high racial tensions, which resulted in violence, and appellant was known as someone who directed others in the right direction and helped with day-to-day survival. (24 RT 8053-8055.) Appellantassisted inmate William Mayfield in acclimatingto prisonlife. (24 RT 8073-8079.) Gretchen White, a licensed clinical psychologist, opined that appellant’s personality, or his inability to perform outside of a penitentiary, was formed as a result of growing up in a multi-problem family and the fact that he had beeninstitutionalized since the age of 12. (24 RT 8083, 8091- 8092.) First, appellant’s family had both physiological and psychological problemsto an extraordinary degree. (24 RT 8091.) His motherhada third grade education, while his father had a fifth grade education at best, and there was “tremendous conflict between the parents.” (24 RT 8092, 8099.) A source of conflict was the fact that his mother was an avid Jehovah’s Witness, while his father was an atheist and known womanizer. (24 RT 8099.) Appellant’s father drank heavily when he was at home, which resulted in physical fights with his mother. (24 RT 8100.) His family was “pretty isolated,” and appellant had a “love/hate relationship” withhis father. (24 RT 8093, 8100.) His father provided neither financial nor psychological support. (24 RT 8102.) Consequently, appellant’s mother held two jobs leaving the children, including appellant, completely unattended, (24 RT 8103-8104, 8108.) Appellant’s mother was “inept at controlling the children” and failed to provide them with structure. (24 RT 8106-8107.) Overtime, his siblings were either incarcerated or sent to various facilities for care. (24 RT 8105.) White concludedthat appellant’s family “basically wasn’t a family,” but rather “a bunch of people that sometimes lived there and sometimes 48 didn’t.” (24 RT 8105.) White understood that appellant’s father was not physically abusive on an ongoing basis, but remained a “disastrous role model.” (24 RT 8108-8109, 8110-8111.) Second,institutionalization at such a young age has profound effects on psychological development. (24 RT 8092.) The Knox County Orphanage wasa “fairly brutal cold place to be housed” and did not foster any of the things that “ideally we have families give us ....” (24 RT 8117- 8118.) From the orphanage, appellant was sent to Pendleton Reformatory at the age of 17. (24 RT 8121.) It was a dangerous andfrightening place for someone coming directly from a foster home. (24 RT 8122.) . ocAppellant’s “right of passage into adulthood”occurred “within that institutional setting” and included sexual experiences that “replicated previous sexual experiences that he had had in that regard.” Research indicated that institutionalization plays a serious andlarge role in terms of “how they eventually turn out.” (24 RT 8123-8126.) Generally, appellant functioned “very well within a structuredsetting. He [was] a hard worker.” While in prison, he had few write-ups and sick calls. However, because he never developedinternal controls, appellant movedfrom “impulse to impulse” when not incarcerated. (24 RT 8128.) Appellant’s history of heavy alcohol was not surprising given his family history. (24 RT 8130.) . JamesPark, a prison expert, explained that older and long-term prisoners werestabilizing elements at the prisons. He opinedthat a prisoner who wasappellant’s age wasgenerally less problematic than prisonersunder the age of 25 because they tendedto “settle in for life.” (25 RT 8278.) He further opined, with a high degree of confidence,that appellant “is going to be a good prisoner” and worker. “He’s going to be a useful prisoner in terms of promotingthe objectivesofthe prison whichis to keep it running and keepit safe.” Appellant would not be a problem and 49 do fine despite the fact he would no longer have the opportunity to earn parole. (25 RT 8289.) ARGUMENTS I. APPELLANT’S STATEMENTS WERE PROPERLY ADMITTED BECAUSEHIS LIMITED INVOCATION OF HIS MIRANDA RIGHTS DID NOT PRECLUDE DETECTIVES FROM ALL OTHER QUESTIONING Appellantfirst claims the statements. he made to Detectives Reed and Edwards on June 21, 1993, were obtained in violation ofMirandav. Arizona (1966) 384 U.S. 436. He arguesthat he fully invoked his right to remain silent and was therefore subject to an unlawful interrogation. He further argues his statements, including the additional evidence discovered as a result of the interrogation, should have been suppressedbythetrial court. (AOB 52-120.) Respondent disagrees. Appellant only partially invokedhis right to remain silent whenhe told detectives that he did not wish to discuss the “robbery/murder[s].”? Consequently, Detectives Reed - and Edwards were free to discuss anything other than the actual crime with appellant. | A. Background | On March 12,1996, appellantfiled a notice of motion and motion to exclude the pre-trial statements he made during the interrogation on June 21, 1993, as well as the “tainted fruits thereof,” including all statements made by Susan Burlingame,Stacey Billingsley, and Greg Billingsley, on the groundthat the statements were the product of police coercion. (2 CT 377-391.) On March 21, 1996, a hearing was held regarding appellant’s motionto exclude his pre-trial statements. (2 CT 377; 1 RT 1155.) The following is the evidence gathered from the hearing: On June 20, 1993, at 10:16 p.m., Sacramento County Sheriffs Department Homicide Detective Darryl Edwardsandhis partner, Detective 50 Stan Reed, were dispatched to The Office to initiate a homicide investigation. (1 RT 1160-1161.) Followingtheir initial investigation, Detectives Edwards and Reed took appellant into custody, transported him to the Sacramento County Sheriff's Department, and conducted a videotaped interview in a Sheriff's Department interview room. (1 RT 1225-1226.) Appellant was handcuffedto a table ring, but appeared relaxed and amiable. (1 RT 1228-1229.) Detective Reed, the primary interviewing officer, explained to appellant what he wasinvestigating and why, advised appellant of his Miranda rights, and asked appellant if he wanted to talk to him. (1 RT 1226.) Appellant responded, “[n]Jo, not about a robbery/murder.” (1 RT 1226-1227.) Detective Reed understood this to mean that, while appellant did not wish to speak about the specific details of the “robbery/murder[s],” he was willing to discuss other topics. Accordingly, Detective Reed asked appellant questions about other topics suchas his living arrangements. A few minutes later, Detective Reed asked appellant, “I don’t suppose you wouldcareto tell us what you were doinglast night?” (1 RT 1227.) Without any hesitation, appellant agreed and told Detective Reed about his whereabouts. (1 RT 1228.) Appellant also disclosed the identities of Stacey and Greg Billingsley, as well as Susan Burlingame, during the interview. Detective Reed, however, explained that he would have collected this information during the course of his normal investigation.” (2 RT 1273.) During cross-examination, the following collequy occurred between defense counsel and Detective Reed: >? On recross-examination, Detective Reed speculated that he would have, at a minimum,contacted the owner, but could not be sure. (2 RT 1273.) 51 Q Okay. Andthe next thing yousaid after that, after he said no, he didn’t own any guns wasdo youcare totell us where you wereatlast night; is that right? A Yes. Q Andafter that, the whole focus of the interrogation reverted back to the incident at The Office bar in which two people had been murderedthe night before;1s that night? A Idsay the line of questioning paralleled that, yes. —Q Andparalleled it to the effect that Mr. Case offered the fact that he had been, indeed, at The Office bar the previous evening;is that right? A Yes. Q Andparalleled being that he did — while he didn’t admit that he participated in the robbery/murder, he did admit to having been there, and you wereinterrogating him asto his story regarding whathe didthere at the night before? A That’s correct. Q And what was yourpurposein interrogating him in that fashion; in other words,to gethis side ofthe story. A To get admissions that would be held against himat a later time. Q Okay. [] And this was something that you realized couldn’t be used because — in the prosecution’s casein chiefif this case wereto go totrial because ofthe fact that he had obviously invoked his Mirandarights; is that right? A Well, I disagree with that, but it’s up to the Court to makethat ruling. (2 RT 1252-1253.) Defense counsel continued by asking Detective Reed about his knowledge ofMiranda. (2 RT 1253-1254.) The collequy continued as follows: Q Okay. [{] For instance, are you aware that in California, subsequent to the enactment of Proposition 8 in- 52 1982, a statement made by a defendant in violation ofhis Mirandarights can be admitted if he were to take the stand for the purpose of impeaching his statement from the stand, his testimony? A It’s not a hard and fast rule, but I’m aware that, in some cases, if the judge is not offended by the conduct, it can be admissible. Q Allright. [§] And is it your habit in questioning individuals who invoketheir right to remain silent to continue to question them after they have invokedtheir right to remainsilent in order to obtain those sorts of admissions that might be used if a person were to take the stand for purposes of impeaching that person? A Is your question in this particular case or in general? Q In general. A In general, yes. * OK * A WhatI’m saying is he didn’t invokehis right to an attorney. He didn’t invokehis right not to talk to me. He just didn’t want to talk about a robbery/homicide which, in my experience,that’s the case with all these people. That’s why they call it an interrogation. In my opinion, wegot past that without a problem. [{] Andthe fact that he discussed things that paralleled that doesn’t changeit. Hestill talked freely and voluntarily. That’s my opinion,sir. (2 RT 1254-1255.) Detective Reed later continuedas follows: A Whathe did was in somewayis a partial invocation of his rights; however, he did not invokehis right not to speak to me. [{] And I frequently during an interrogation have somebodytell me, for example, I don’t want to talk aboutthat. [{] Andthat, in itself, is not an invocation ofhis right to remain silent. It’s a particular area of the interrogation that he doesn’t wantto discuss; i.e., in this case the robbery/homicide; however, as the interrogation continued, they for whatever the reason beganto talk about it. And in those cases, that information has been admissible. And that’s my opinionin this particular case. _ 53 Q All right. [{]] And, in other words, you felt that Mr. Case’s statement, no, not — not on a robbery/homicide or robbery/murder, Jesus Christ, was a limited invocation ofhis right not to talk to you and that he was morethan willing to talk to you about everything else that you might wantto talk about; is that right? A I’m not even sure it was an invocation. [§] He madeit clear that he did not wantto talk about the robbery/homicide. That’s what he was saying to me. Q Uh-huh. A But it was not an invocation not to speak to me. [{] So during that interrogation, regardless in my opinionif I cross over and he beginstalking about things that parallel such as hisalibi, those things are all admissible. [{] The only question that was in my mind — it’s not a question in my mind,but I understand whatyou’re saying — is that the whole invocation would have to just be that I don’t wantto talk to you, period. [§] But that’s not the case. That’s what I’m saying, sir. That’s not the way I understandit. (2 RT 1256-1257.) Following the hearing, the trial court ruled as follows: And turning to the next two issues, whether the statements were coerced and whether they were taken in violation of the defendant’s Miranda regarding the allegation that the statements were coerced, the Court has reviewed the videotape, and the Court has observed the testimony. The Court has in mind a setting of the interrogation, the style of the interrogator, Mr. Case’s past, which wasalluded to and Mr. Case’s conduct _ during the time that he wasin the interview room undergoing questioning. Allof those things lead the Court to believe that the statements were not the product of coercion. The thorny question is whether the statements were taken in violation of Miranda. AsI recall the evidence, when he wasasked if he wanted to discuss the matter with the sheriff’s detectives, he said no, not about the robbery/murder, Jesus Christ. [§]] The Court has reviewedthe cases that have been cited by both the People and the defense and finds that Clark and Silva are on point here. 54 Clark holding that a defendant may indicate an unwillingness to discuss certain subjects without manifesting a desire to terminate an interrogation already in progress. [{]] In the Silva case, he said I really don’t want to talk about that. And that was found not to be an invocation. [f] Here Mr. Case didn’t invoke his right to all subjects, only as to one. The scenario hereis similar to the scenario in People vs Ashmus, AS HM U §,1991, 54 Cal 3d, 932. (11 RT 4067-4068.) The court continued: In that case, the defendant evidently sought to alter the course of questioning but didn’t attempt to stop it altogether. And that appears to be whatthe situation was, absent an invocation of the right to remain silent, law enforcement officers may continue interrogation. The Court finds that they did so and they did so in a mannerthat was acceptable and not in violation of Mr. Case’s Miranda rights. Because of these rulings, the Court does not reach the proven poisonoustree argument, since it does notfeel it is inevitable based on the Court’s ruling thusfar. (11 RT 4068.) On appeal, appellant augmenteda transcript of the interrogation to the record. (Aug. CT of 11/10/09 “Appendix A.) Based on that transcript, the following exchange occurred between Detective Reed and appellant: REED: Do you know whatthis is all about? CASE: - No (shakes head). REED: Okay. Sorry we had to meet under such rude circumstanceslike that but I’m sure you’ll understand why. Ah, we’re investigating a homicide that occurred out on Jackson Highway and Bradshaw Road. Occurredlast night. You may have seen it on the news. CASE: Yeah. REED: Okay. It’s a robbery/murder. Two people were killed out there. In the process this morning of investigating this, we ran into a lady who had someclothing in her possession that had blood on it. And, ah, in the process of asking whereit camefrom,ultimately she told us, reluctantly, but she told us. So that’s why we cameoutto have a talk with you. Ah, we’d 55 like to talk to you aboutit, but because of the circumstances of the robbery and the murderout there and the bloody clothing and all that, ah, I’m going to have to advise you ofthe rights first. Okay? So you havethe right to remain silent. Anything you say can and will be used against you in a court of law. Have the right to an attorney, have him present with you while you’re being questioned, if you wish. If you cannotafford to hire an attorney, one will be appointed to represent you before any questioning. Do you fairly understand each of those rights? CASE: Yeah. REED: Havingthose rights in mind, will you talk to me ~ now? CASE: (Unintelligible) robbery/murder. Jesus Christ. REED: Okay. [§] Okay. As far as, um, any questions about where you’re living and stuff, we'dlike to get some of that information from you so we can get you identified and everything. What’s your -- your full name? (Aug. CT of 11/10/09 “Appendix A”at pp. 1-2.) Detectives Reed and Edwardsthen asked appellant approximately 15 additional questions pertaining to his identification, address, living conditions, employment, and whether he possessed any weapons. (Aug. CT of 11/10/09 “Appendix A” at pp. 2-4.) Detective Reed then asked the following questions: REED: Care to tell us where you wereat jast night? CASE: - Twasat the Office last night with my girlfriend. REED: Oh, you were there with your girlfriend? CASE: Yeah. Damnnearall night until about 9:00 o’clock. (Aug. CT of 11/10/09 “Appendix A”atp. 4.) 56 B. Relevant Law This Court has summarized the general law as follows: The basic rules applicable to defendant’s claims are wellsettled. Thehigh court has stated in summary that to counteract the coercive pressure inherent in custodial surroundings, “Miranda announcedthat police officers must warn a suspectprior to questioning that he has a right to remain silent, and a right to the presenceof an-attorney. [Citation.] After the warnings are given, if the suspect indicates that he wishes to remain silent, the interrogation mustcease. [Citation.] Similarly, if the suspect states that he wants an attorney, the interrogation must cease until an attorney is present. [Citation.]” (People v. Williams (2010) 49 Cal.4th 405, 425.) “Critically, however, a suspect can waive these rights.” (People v. Williams (2010) 49 Cal.4th 405, 425.) To stop the questioning, the suspect “must articulate his desire to [remain silent] sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be [an invocation ofthe right to remain silent].” (Davis v. United States (1994) 512 U.S. 452, 459; see also Berghuis v. Thompkins (2010)_ SUS. [130 S.Ct. 2250, 2259-2260].) A suspect may exercise his right against self-incrimination by “refus[ing] to sign a waiver of his constitutional rights[,] ... refus[ing] to continue an interrogation already in progress{,] or... [by] ask[ing] for an attorney.” (People v. Silva (1988) 45 Cal.3d 604, 629, citing People v. Ireland (1969) 70 Cal.2d 522, 535.) “[T]he question of waiver must be determinedon the ‘particular facts and circumstances surroundingthat case, including the background, experience, and conductof the accused.’ [Citations.]” (People v. Williams, supra, 49 Cal.4th at p. 425; see also, e.g., In re Shawn D. (1993) 20 Cal.App.4th 200, 209 [relevant factors include the suspect’s age, sophistication, prior experience with the criminal justice system, and emotional state].) 57 The inquiry has two distinct dimensions. [Citations.] Furst, the relinquishmentofthe right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been madewith a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandonit. Only if the ‘totality of the circumstances surrounding theinterrogation’ reveals both an uncoerced choice and the requisite level of comprehension maya court properly conclude that the Mirandarights have been waived.[Citations.] (Moran v. Burbine (1986) 475 U.S. 412, 421; see also People v. Cruz | (2008) 44 Cal.4th 636, 668.) Onceit is determined that a suspect’s decision notto rely on his rights was uncoerced,that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State’s intention to use his statements to secure a conviction, the analysis is complete and the waiveris valid as a matterof law. (Ud.at pp. 422-423, fn. omitted; see also, People v. Sully (1991) 53 Cal.3d 1195, 1233.) A defendant, however, has not unambiguously and unequivocally invokedhis right to remain silent when his statements are merely - expressionsofpassingfrustration or animosity toward the interrogating officer or amountonly to a refusal to discuss a particular subject. (People v. Williams, supra, 49 Cal.4th at p. 433; see also People v. Musselwhite (1998) 17 Cal.4th 1216, 1238.) Indeed, “[a] defendant mayindicate an unwillingness to discuss certain subjects. without manifesting a desire to terminate “an interrogation already in progress.” (People v. Silva, supra, 45 Cal.3d at p. 630,citing, e.g., People v. Watkins (1970) 6 Cal.App.3d 119, 124; see also People v. Clark (1992) 3 Cal.4th 41, 122.) _“The prosecution bears the burden of demonstratingthe validity of the defendant’s waiver by a preponderanceofthe evidence.” (People v. Williams, supra, 49 Cal.4th at p. 425, citing People v. Dykes (2009) 46 Cal.4th 731, 751; see Berghuis v. Thompkins (2010) 560 U.S. ,_ «(130 58 S.Ct. 2250, 2261].) “On appeal, we conduct an independent review ofthe trial court’s legal determination andrely uponthetrial court’s findings on disputed facts if supported by substantial evidence.” (People v. Williams, supra, 49 Cal.4th at p. 425, citing People v. Dykes, supra, 46 Cal.4th at p. 751.) C. Appellant’s Limited Invocation of His Right to Remain Silent as to the Subject of the “Robbery/Murder[S]” did not Preclude Detectives from Questioning Him about Other Topics Such as His Whereabouts on the Evening of the Crimes Appellant is mistaken when he argues that he had fully invoked his right to remain silent duringhis interrogation with Detectives Reed and Edwardson June 21, 1993. He argues that, because the robbery-murder wasthe only topic of interest to the detectives, his refusal to discuss it was tantamountto a full invocation of his right to remain silent and the detectives deliberately violated his Miranda rights when they continuedto question him. (AOB 66-79.) The well-established case law does not support appellant’s argument. Appellant refused to discuss only the “robbery/murder[s],” which amountedto a limited invocation of his right to remain silent as to the details of the crime. Thetrial court correctly found the cases of Silva, Clark, and Ashmus controlling in the instant case. In People v. Silva, supra, 45 Cal.3d at p. 629, the defendant wasinterrogated by a sheriff's deputy shortly after his arrest. He waived his Miranda rights and answered the questions posed to him. (/bid.) After answering several questions,the defendantstated “I don’t know. I really don’t wantto talk about that[]” when asked whether he had driventhetruck. (Ibid.) The deputy then discussed areas other than the identity of the driver of the truck. (/bid.) On appeal, the defendant argued that his statement, “I don’t know. I really don’t want to talk aboutthat[,]” was an invocation of his right to remain 59 silent andthat all further questioning wasin violation ofMiranda. (Ibid.) This Court rejected the claim as follows: Having obtained defendant’s consent to the questioning, Callegari was free to interview defendant until he exercised his privilege against self-incrimination. A suspect may do so by “refus[ing] to sign a waiver of his constitutional rights[,] ... refus[ing] to continue an interrogation already in progress[,] or ... [by] ask[ing] for an attorney.” A defendant may indicate an unwillingness to discuss certain subjects without manifesting a desire to terminate “an interrogation already in progress.” Here,the trial court listened to the tape recording and found that “[I]n this case ... [defendant] does not claim that he had invokedhis constitutional rights directly, but indirectly. Andif you listen to the portion of the tape to which listened,it is clear from the inflection that he was not even intimating that he wishedto terminate the interrogation when hesaid, “I don’t know,I really don’t want to talk about that.” In light ofthe — court’s finding and our independent review ofthe tape recording, we find these statements were admissible and were not obtained in violation of his Mirandarights. (People v. Silva, supra, 45 Cal.3d at pp. 629-630, internalcitations omitted.) Similarly, in People v. Clark, supra, 3 Cal.4th at pp. 119-120, the defendant had waived his.right to remainsilent, wondered how long it would take to get an attorney, and stated that he wishedto talk to the detective during the interim. There was some further discussion as to whether the defendant wantedto invoke his right to counsel, but the defendant stated he was willing to talk to the detective in the meantime. (Id. at p. 120.) He ultimately waived his right to counsel andstated that he wouldtell the detective when he wanted an attorney present. (/bid.) On appeal, this Court rejected the defendant’s claim that he had effectively invoked his right to counsel and that the detective should have stopped questioning him. (/d. at pp. 120-121.) This Court reasonedas follows: 60 However, defendant never expressed a desire notto talk until he had an attorney. The detectives repeatedly made clear to him that if he wanted an attorney now,they would stop right then, and that he could stop the interview at any time by merely saying he wanted an attorney. Although he expressed the desire to have the process of getting an attorney started, he never showedthe slightest reluctance to talk in the meantime. A desire to have an attorney in the future, coupled with an unambiguous willingness to talk in the meantime,is not an invocation of the right to counsel requiring cessation of the interview. (bid., internal citation omitted) Finally, in People v. Ashmus (1991) 54 Cal.3d 932, 968, overruled on other grounds in People v. Yeoman (2003) 31 Cal.4th 93, 117, the defendant also waived his Mirandarights during a police interview following his arrest and answereda line of questions. In response to one question,he stated, “you’re gonnatry to con-, now I ain’t saying no more.” (/d. at pp. 968-969.) The defendant argued that everything following that _ statement should have been suppressed because they were taken after he had invokedhis right to remain silent. (/d. at p. 969.) In upholdingthe trial court’s finding that the defendant had not invoked his right to silence, this Court noted that the defendant spoketo his interrogators; he uttered the words in question; and without hesitation he proceeded to speak to them further. He evidently sought to alter the course of the questioning. But he did not attempt to stop it altogether. (Id. at p. 970.) Appellant argues the above three cases relied upon bythetrial court are inapposite because the defendants in those casesfirst expressly waived his right to remain silent and only later in the interrogation “expressed an unwillingness to answera particular question posed or discuss a particular area of inquiry.” (AOB 73-76.) Whileit is true those defendants first expressly waivedtheir right to remainsilent, that fact is not fatal to this 61 case and is nothing more than a distinction withouta difference. A review of the facts and circumstances surrounding this case supportsthetrial ' court’s finding that appellant selectively invoked his Mirandarights. Appellant, in his mid-50sat the time of the interrogation, was a sophisticated long-term career criminal who was highly experienced with the criminal justice system, understood his Mirandarights, and immediately defined for the detectives what he was unwilling to discuss whenhesaid he did not wishto discuss the “robbery/murder[s].” (Aug. CT of 11/10/09 “Appendix A”at pp. 1-2; see North Carolina v. Butler (1979) 44] U.S. 369, 374-375, quoting Johnson v. Zerbst (1938) 304 U.S. 458, 464 (“the question of waiver must be determined on‘the particular facts and circumstances surroundingthat case, including the background, experience, 299and conduct of the accused.’”].) To be sure, throughoutthe course of the interrogation, appellant neither gave any indication that he wanted the detectives to cease their questioning nor told detectives that he no longer wished to speak to them. Instead, he instantaneously unleashedanalibi whensimply asked, “[c]are to tell us where you werelast night?” (Aug. CT of 11/10/09 “Appendix A”at p. 4; see Terrovona v. Kincheloe (1990) 912 F.2d 1176, 1180 [“Terrovona gavethe detectives no indication that he wishedto remain silent. Rather, he offered an alibi to explain his whereabouts on the evening in question, indicating a willingnessto talk.”]; People v. Davis (1981) 29 Cal.3d 814, 825 [“Moreover, although defendant’s subsequent silence was clear evidence of his unwillingness to _ speak to the test administrator, the surrounding circumstances showthathis reluctance wasrelated only to the polygraph examination.”].) Like the defendant in Ashmus, appellant simply “sought to alter the course of the questioning. But hedid not attemptto stop it altogether.” (People v. Ashmus, supra, 54 Cal.3d at p. 970.) Thus, appellant only partially invoked his right to remainsilent. 62 Appellant’s argumentthat his refusal to discuss the “robbery/murder[s]” was tantamountto a full invocation ofhis right to remain silent because it was the sole topic of interest to the detectives is flawed. Appellant’s definition of “robbery/murder[s]”is far too broad, and this Court should reject it. Appellant argues that the refusal to discuss the “robbery/murder[s] includes the refusal to discuss an alibi because “an alibi exists only in relation to, and thus implicitly concerns,a particular crime.” (AOB 70.) Rather, “[a]n alibi consists of evidence that the defendant was notat the sceneofthe crime whenit was committed and did not otherwise participate in its commission.” (People v. Gilbert (1965) 63 Cal.2d 690, 710, emphasis added,distinguished on other grounds in People v. Gonzales (1967) 66 Cal.2d 482, 493.) Accordingly, asking appellant where he was that night necessarily is not the sameas discussing the actual details of the crimes. Appellant therefore did not fully invoke his right to remain silent. As discussed above, he was eagerto discusshis alibi and clear his name. _ Underthe totality of the circumstances,the trial court correctly concluded that appellant selectively waived his right to remain silent during his interview with the detectives. Equally flawedis appellant’s argument that Detective Reed deliberately violated his right to remain silent in an attempt to obtain | statements to be used against him at trial. He makes much ofthe fact that Detective Reed continued to question him abouthis identity and employmentdespite already being in possession of such information. (AOB 68-69.) This is of no significance. Asset forth above, because appellant only selectively invoked his right to remainsilent, the detectives were permitted to question appellant about anything else regardlessof their subjective feelings. (See, e.g., People v. Carrington (2009) 47 Cal.4th 145, 168 [“The existence of an ulterior motivation does not invalidate an officer’s legal justification to conduct a search.”’]; see also United Statesv. 63 © Van Dreel (7th Cir. 1998) 155 F.3d 902, 905 [‘‘That the ... officer may have hopedto find evidence [not listed in the warrant] is irrelevant to the Fourth Amendment analysis under Whren, because once probable causeexists, and a valid warrant has been issued, the officer’s subjective intent in conducting the searchis irrelevant.”].) In addition, based on an isolated portion of Detective Reed’s | testimony on cross-examination, appellant incorrectly argues that Detective Reed recognized his statementas a full invocation of his right to remain silent and deliberately violated this right by his continuing the interrogation. (AOB 68-70.) Not so. A review ofthe entire relevant portion of Detective Reed’s cross-examination, as set forth above,reveals that he in fact understood appellant’s invocation was limited to the crimes itself and that he was free to question appellant about any other topics. To ~ be sure, Detective Reed’s concluding testimonyon this subject was as follows: But it was not an invocation not to speak to me. [{] So during that interrogation, regardless in my opinionif I cross over and he beginstalking about things that parallel such ashis alibi, those thingsare all admissible. [{] The only question that was in my mind — it’s not a question in my mind, but I understand what you’re saying — is that the whole invocation would have to just be that I don’t want to talk to you, period. [{] But that’s not the case. That’s what I’m saying, sir. That’s not the way I understandit. (2 RT 1256-1257.) The record, therefore, belies appellant’s claim that | Detective Reed deliberately violated his right to remainsilent. D. Appellant’s Statement was Voluntary Assimilarly argued above, appellant claims his statement wasthe product of psychological coercion and therefore involuntary because the detectives “continued to interrogate him” despite the fact he “emphatically stated to his interrogators that he did not wantto talk about the robbery- 64 murderat hand.” He also arguesthat his statement was involuntary as a result of the alleged violation of his right to remain silent coupled with the detectives “threats” of the death penalty. (AOB 79-83.) Again, respondent disagrees. “An involuntary confession may not be introducedinto evidenceat trial.” (People v. Carrington (2009) 47 Cal.4th 145, 169, citing Lego v. Twomey (1972) 404 U.S. 477, 483.) “The prosecution has the burden of establishing by a preponderanceof the evidence that a defendant’s confession was voluntarily made.” (Carrington, at p. 169, citing 7)womey, at p. 489; see also People v. Williams (1997) 16 Cal.4th 635, 659.) A statement is deemed voluntary if it is “the product of a rational intellect and free will.” (People v. Maury (2003) 30 Cal.4th 342, 404, citing Mincey v. Arizona (1978) 437 U.S. 385, 398.) Thus, “[iJn determining whethera confession was voluntary, the question is whether defendant’s choice to confess wasnotessentially free becausehis or her will was overborne.” (Carrington, at p. 169, citing People v. Massie (1998) 19 Cal.4th 550, 576, internal quotations omitted; see also People v. Maury, supra, 30 Cal.4th at p. 404.) This determination involvesa totality of the circumstances approach, examining both the individual characteristics of the defendant and those of the specific interrogation or interview. (People v. Maury, supra, 30 Cal.4th at p. 404, citing People v. Thompson (1990) 50 Cal.3d 134, 166; see also Withrow v. Williams (1993) 507 U.S. 680, 693-694; People v. Massie, supra, 19 Cal.4th at p. 576.) On appeal,the trial court’s findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence. (People v. Carrington, supra, 47 Cal.4th at p. 169.) Thetrial court’s findingsas to the voluntariness of the — confession is, however, subject to independent review. ([bid.; see also People v. Holloway (2004) 33 Cal.4th 96, 114.) 65 For the reasonsset forth above, appellant only partially invoked his right to remainsilent; therefore, Detectives Reed and Edwardsrightfully continuedthe interrogation. Additionally, as acknowledged by appellant, the “thinly-veiled threat of the death penalty if he did nottell his side of the story” standing alone, is not enough to render his statement involuntary. (AOB82-83.) To be sure, this Court’s decision in People v. Williamsis illustrative. The following occurred between the defendant and interrogator: Salgado stated: “This is your chance now,right here before it gets any ... farther outside of this room ... in front of any district attorney[.] In front of any judge or jury. Cause you know how the system works.” Defendant acknowledged: “I know how the system works,” adding: “If I got found guilty on the murder I’m goin’ anyway.” Knebel interjected: “You're gone.” Salgadosaid, “That’snot true.” He added: “T’ll tell you why.... It’s because when the jury and judgelooksat these things they look for the truth.” Knebel added: “They look for remorsefulness on the part of the guy that did the crime.” Knebel added:“{I]f from jumpstreet you deny it and we go through and proveit the jury's gonna say, you ain't worth saving....” Defendant stated: “Kill me.” Knebel added: “give him the gas chamber.” Salgado asked: “Is that what you want?” Defendantreplied: “[They’re] gonna haveto kill me.” Knebel _ responded: “Theywill.” Salgado asked whether defendant wanted to die, and when defendant respondedhedidnot, Salgadosaid: “Thentell me the truth.” Defendant denied killing the victim. (People v. Williams, supra, 49 Cal.4th at p. 438.) This Court found as follows: In the present case, it is evident that neither the mention of the death penalty nor the deception overcame defendant’s will. Heexhibited no sign of distress in response to referencesto the death penalty, and remainedable to parry the officers' questions. Defendant had experience with the criminal justice system, having been convicted of rape and burglary and having served a prison term in consequence. The deception practiced by the officers was not of a sort likely to produce unreliableself- 66 incrimination. [§] Significantly, moreover, defendant did not incriminate himself as a result of the officers’ remarks. Rather, defendant continuedto deny responsibility in the face of the officers’ assertions. (Id. at pp. 443-444, citations omitted.) Similary, it cannot be argued that appellant’s will was overborne. He appeared relaxed throughoutthe interrogation, did not confess when faced with the fact that he could face the death penalty, and continued to maintain his innocence. (1 RT 1228-1229.) Indeed, given his extensive criminal history, appellant certainly was no strangerto the interrogation processand attemptedto use it to his advantage. (See People v. Guerra (2006) 37 Cal.4th 1067, 1096 [“The sole cause appearingin the record for defendant’s cooperation during the interview washis desire to exculpate himself”]; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 58 [“His resistance, far from reflecting a will overborne by official coercion, suggests instead a still operative ability to calculate his self-interest in choosing whetherto disclose or withhold information’’]; see also Peoplev. Jablonski (2006) 37 Cal.4th 774, 815-816, 38 Cal-Rptr.3d 98, 126 P.3d 938.) The detectives merely encouraged appellantto tell the truth and made no impermissible threats ofpunishmentor promises of leniency. To the extent they suggested appellant may get a lesser punishmentbytelling his side of the story, this was no more than an advisement of the benefit that might flow naturally from a truthful and honest course of conduct. “Homicide does possess degrees of culpability, and when evidenceofguilt is strong, confession and avoidanceis a better defense tactic than denial.’” (People v. Holloway, supra, 33 Cal.4th at p. 116.) This claim is meritless. E. The Trial Court Properly Admitted the Testimony of Greg Billingsley, Stacey Billingsley, and Sue Burligame Appellant further argues that the testimony of Greg Billingsley, Stacey Billingsley, and Sue Burlingame were inadmissible for the 67 following reasons: (1) the evidence wasobtainedasa result of his involuntary statement; (2) it was derivative of an interrogation strategy of deliberately ignoring his invocation of his rights in order to circumvent Miranda; and (3) it was not inevitably discovered. (AOB 83-96.) For manyofthe reasonsset forth above,this argumentfails. 1. Appellant’s Statements were Voluntary For the reasons set forth above, appellant’s statements were voluntarily obtained. Consequently, the testimony of Greg Billingsley, Stacey Billingsley, and Sue Burlingame were properly admitted into evidence. 2. Detectives Reed and Edwards Honored Appellant’s Limited Invocation of His Right to RemainSilent as to the Topic of the “Robbery/Murder|s]” Appellant urges this Court to create a new remedy where law enforcementhas deliberately ignored a defendant’s invocation ofhis Miranda rights. Appellant urges as follows: If appellant’s statement is found to have beenvoluntary,this Court should hold that derivative evidence, whetherit be physical evidence or the testimony of a witness, is inadmissible whereit is obtained as a result of a custodial interrogation in whichthe interrogating officers, for the purpose of evading Miranda’s safeguards, deliberately ignore the suspect’s invocation ofthe right to remain silent. (AOB 85.) Sadly for appellant, his case does not warrant such a remedy because this case does not involve deliberate misconduct by law enforcement. His argumentrests solely on his mistaken interpretation of Detective Reed’s testimony regarding his general interrogation practices. Appellant represents that the lead interrogating officer admitted that it was his practiceto continue interrogating a suspect who invokedhis rights because the suspect’s desire notto talk is often overborne by continued 68 questioning and that his aim in employing this strategy was to obtain investigative leads and impeachmentmaterial. (AOB 91, emphasis in original.) A review of the colloquy between Detective Reed and defense counsel reveals that Detective Reed meant no such thing. As set forth in more detail above,it is true that Detective Reed answeredin the affirmative when asked this leading question by defense counsel: All right. [§] Andis it your habit in questioning individuals whoinvoketheir right to remain silent to continue to question them after they have invokedtheir right to remainsilent in order to obtain those sorts of admissions that might be usedif a person wereto take the stand for purposes of impeaching that person? (2 RT 1254.) Detective Reed, however, subsequently clarified his answer. Heclearly explained that, in situations where there has beena limited invocation ofthe right to remain silent, it was his practice to discuss other topics and that in some cases “they for whatever the reason beganto talk about it.” (2 RT 1254-1257.) He then clarified: But it was not an invocation not to speak to me. [§] So during that interrogation, regardless in my opinion if I cross over and he begins talking about things that parallel such as his alibi, those thingsare all admissible. [{]] The only question that was in my — that’s in my mind — it’s not a question in my mind,but I understand what you’re saying — is that the whole invocation would haveto just be that I don’t wantto talk to you,period. [] But that’s not the case. That’s what I’m saying, sir. That’snot the way I understandit. (2 RT 1257.) Contrary to appellant’s representation of this exchange,it was not Detective Reed’s practice “to continue interrogating a suspect who invokedhis rights because the suspect’s desire not to talk is often overborne by continued questioning ....” (AOB 91.) In fact, it was his practice to continue interrogating a suspect whenheor she hasonly partially invoked his right to remain silent. As set forth above,the fact that he had 69 | subjectively hoped to obtain admissions during his lawful continued interrogation about different topics is irrelevant for the reasons set forth above. (2 RT 1252-1253; see Whren v. United States (1996) 517 U.S. 806, 813 [The existence of an ulterior motivation does not invalidate an officer’s legal justification to conduct a search.”’].) Plainly, there was no deliberate misconduct on Detective Reed’s part. Additionally, this Court should decline appellant’s invitation to expand the Miranda rule because,as he himself acknowledges, the United States Supreme Court has repeatedly declined to apply the fruit of the poisonoustree doctrinein non-deliberate failures to provide the warnings. (AOB 87-89;see United States v. Patane (2004) 542 U.S. 630, 639-642; Oregon v. Elstad (1985) 470 U.S.298, 306-309; Michigan v. Tucker (1974) 417 U.S. 433, 444.) The Patane court reasoned as follows: _ It follows that police do not violate a suspect’s constitutional rights (or the Miranda rule) by negligent or even © deliberate failures to provide the suspect with the full panoply of warnings prescribed by Miranda. Potential violations occur, if at all, only upon the admission of unwarned statements into evidence attrial. And,at that point, “[t]he exclusion of unwarnedstatements... is a complete and sufficient remedy”for any perceived Miranda violation. [Citation.] Thus, unlike unreasonable searches under the Fourth Amendmentor actual violations of the Due Process Clause or the Self—Incrimination Clause, there is, with respect to mere failures to warn, nothing to deter. There is therefore no reason to apply the “fruit of the poisonoustree” doctrine of Wong Sun, 371 US., at 488, 83 S.Ct. 407. [Citations.] It is not for this Court to imposeits preferred police practices on either federal law enforcementofficials or their state counterparts. (Pantane, supra, 542 U.S.at pp. 641-642, footnote omitted.) Again,as set forth above,this case does not involve deliberate misconduct on the part of Detective Reed, and appellant’s statements were 70 voluntarily obtained. The facts of this case, therefore, do not warrant the construction of a new remedyas requested by appellant.” 3. The Evidence would have been Inevitably Discovered Assuming arguendothe statements were inadvertantly, yet voluntarily, obtained in violation ofMiranda, Detective Edwards would have inevitably spoken with the Billingsleys and Burligameaspart of his investigation. Underthe inevitable discovery doctrine,illegally seized evidence may be used where it would have been discovered by the police through lawful means. As the United States Supreme Court has explained, the doctrine “is in reality an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through an independentsource,it should be admissible if it inevitably would have been discovered.” The purpose of the inevitable discovery rule is to prevent the setting aside of convictionsthat would have been obtained without police misconduct. The burden of establishing thatillegally seized evidenceis admissible underthe rule rests upon the government. (People v. Robles (2000) 23 Cal.4th 789, 800-801, internalcitations omitted; see also Murray v. United States (1988) 487 U.S. 533, 539; Nix v. Williams (1984) 467 U.S. 431, 443, fn. 4.) “The government can meetits burden byestablishing that, by following routine procedures, the police would inevitably have uncovered the evidence.” (United Statesv. Ramirez- Sandoval (9th Cir. 1989) 872 F.2d 1392, 1399,citing United Statesv. Martinez—Gallegos (9th Cir. 1987) 807 F.2d 868, 870; United States v. 6° Appellant cites Missouri v. Seibert (2004) 542 U.S. 600, 617,for the proposition that suppression of the deliberately obtained Miranda- violative statement was warranted for police deterrence purposes. (AOB 89.) Seibert, however, did not involve an application of the “fruit of the poisonoustree” doctrine. Rather, the plurality concluded that the manner that the warnings were given wasnot effective. (Seibert, at p. 617.) 71 Andrade(9th Cir. 1986) 784 F.2d 1431, 1433; see also U.S. v. Ankeny (9th Cir. 2007) 502 F.3d 829, 835, fn. 2; United States v. Polanco (9th Cir. 1996) 93 F.3d 555, 561-562.) During the suppression hearing, Detective Edwardstestified that he had learned of appellant’s place of employment during his interview with Webster. (1 RT 1218-1219.) He further testified that, during the normal course of investigation, he would have contacted the place of employment - to gain appellant’s “background [information] andhis activities.” (1 RT 1219.) Detective Edwards answered,“Yes,that’s true,” when asked, “And would you attempt to also contact any other employees who workedthere whoknew the defendant and might knowhis activities?” (1 RT 1219- 1220.) | Given thesefacts, it is certain that Detective Edwards would have visited McKenry’s aspart of his initial investigation. In his attempt to contact “other employees who workedthere who knew the defendant,” Detective Edwards would haveinevitably met the Billingsleys. Not only did the Billingsleys work with appellant, but Greg and appellant were close friends who bowled together every Wednesday night. (12 RT 4502, 4500- 4501, 4522; 13 RT 4562-4563; 17 RT 6019, 6021-6023.) Undoubtedly, speakingto the Billingsleys would have ultimately led him to Burlingame. Appellant notes that Detective Reed, during cross-examination, stated he speculated that he would have, at a minimum,contacted the owner of McKenry’s and would have eventually become aware of Sue Burlingame, but agreed with defense counselthat he did not know ifhe would have done so. (AOB 96; 2 RT 1273.) This testimony, however, does not discount Detective Edwards’ representation that he would have visited McKenry’s to investigate more about appellant’s background and activities. Appellant’s life was heavily intertwined with his job — mostofhis friends were also his co-workers, he dated Baker who washis boss, and he usedhis place of 72 employmentas his contact information because he did not have a telephone. Thus, Detective Edwards inevitably would have collected the same evidence without appellant’s statement. This claim also fails. F. The Admission of Appellant’s Statement was not Prejudicial Appellant argues that introduction of the alleged “Miranda-violative” statements was prejudicial because they werecrucial for the prosecution to secure a conviction against him. He further argues that the importance of his statements was highlighted in the prosecutor’s closing argument which made repeated references to appellant’s statement that blood on the shirt came from a shaving injury [citations], appellant’s admissionsthat the clothes in evidence were his [citations] and his admission that he was at The Office at 8:55 p.m. on the night ofthe killings [citations]. (AOB 97.) He further argues that without these post-arrest statements,“the evidence of [his] guilt was marked bysignificant gaps and inconsistencies.” (AOB 98.) Respondent disagrees. The above statements, while possibly helpful to the prosecution’s case, were by no meanscrucialto its case-in- chief. As set forth in more detail in Argument VI below,the statements were offered merely to rebut portions of the defense’s case-in-chief. In addition,error, if any, was harmless given the overwhelming evidence of appellant’s guilt. The erroneous admission of extrajudicial statements obtained in violation of Mirandais not per se reversible error. (Arizona v. Fulminante (1991) 499 U.S. 279, 306-310.) It is not reversible if the error is harmless beyond a reasonable doubt. (Chapmanv. California (1967) 386 U.S.18, 24; People v. Thomas (2011) 51 Cal.4th 449, 498.) The prosecution presented overwhelming evidenceofappellant’s guilt. First, appellant had the strong desire and intended to commit a robbery, and he took preliminary steps toward achieving this goal. As early 73 as June of 1992, appellant purchased wigs and a mustache to concealhis identity during a robbery, as well as instructional publications about crime. (14 RT 4976-4980, 18 RT 6108.) In addition, he knew howto disguise his features using temporary tattoos, extra clothing, and, in his own mind, Nu- Skin. (14 RT 4972-4975.) With Webster’s help, he also purchased a gun, the murder weapon,for the purposeof “rob[bing] somestores, banks.” (14 RT 4992-4997.) In October of 1992, appellant unsuccessfully solicited Gentry’s help to commit a robbery by being the getaway driver. (17 RT 5824-5836.) . In early 1993, appellant quite clearly twice expressedhis intentto kill witnesses or anyone causing resistance during a robbery. (17 RT 5812- 5813, 5864-5865.) In March or April of 1993, appellant, who appeared depressed, also expressly told Baker that he wanted to commit a robbery, but feared incarceration and acknowledged that he would haveto kill any witnesses if caught. (18 RT 6102-6104, 6108.) In late Mayorearly June. of 1993, appellant twice solicted Greg Billingsley to be the getaway driver during a robbery of Crestview Lanes. (17 RT 6020-6021.) Appellant had — already cased the establishment and had a plan in mind. (17 RT 6021- 6023.) Billingsley refused, causing appellant to abandonhis plan to rob Crestview Lanes andto rob The Office instead. (17 RT 6024-6025.) Second, appellant had the opportunity and meansto rob The Office. Appellant was familiar with The Office andhad recently cased the establishmentmultiple times with Burlingameandalone on other occassions. (11 RT 4171; 13 RT 4644-4647, 4649-4650.) On the evening of The Office robbery and murders, he had full access to Baker’s car giving him the ability of unrestricted travel. (18 RT 6088-6089.) When he | arrived at The Office with Burlingameonthe night of the robbery/murders, appellant learned that Manuel wasthe sole bartender that evening. Appellant surely knew he could complete these crimes alone. He drove 74 Burlingame to Dairy Queen, but did not stay with her and instead returned to The Office where he remained until it closed as witnessed by patron Grimes. (Aug. CT of 11/10/09 Appendix B at pp. 19-20; 11 RT 4170- 4171, 4176-4178, 4181-4182.) Gunfire was heard just minuteslater. (11 RT 4246-4249.) Appellant argues there was room for doubt as to whether he wasat The Office nearthe time ofthe robbery and murders. (AOB 102-104.) Namely, he attempts to attack Grimes’ credibility by pointing to his “palpable” bias because he “plannedto exact justice himself if appellant were not convicted.” (AOB 102.) True, Grimes was infuriated with appellant because Tudor washis friend. This fact, however, did not underminehis positive identification of appellant at The Office minutes before the robbery and murders. Grimes had very specific reasons for recognizing appellant at The Office that evening. He had seen appellant at the bar multiple times within two weeksofthe murders, was aware that appellant had beenlistening to their conversation, and noticed appellant’s unusual wayofreracking the balls giving him a clear view of appellant’s cowboyboots. (11 RT 4176-4177.) . Third, the physical and other evidence pointedto appellant. Appellant worethe shirt and boots, that were covered with both Tudor’s and Manuel’s blood, on the evening of the robbery and murders. (14 RT 5006-5007; 16 RT 5482, 5485-5486, 5493-6495; 18 RT 6088, 6295.) Baker recognized the shirt because it was a gift from her. (18 RT 6088-6089.) Webster recognized the boots because they were a gift from her. (14 RT 5006.) To be sure, appellant instructed Webster to dispose of the shirt and, on the following day, he confirmed with Webster that she had placed the items in different containers. (14 RT 5006-5009, 5038.) In addition, appellant argues there was doubtas to whether the murder weapon belonged to him and wasin his possession onthe night of the 75 murders. (AOB.105-110.) His argument, however, is nothing more than an improper request for this Court to reweigh the evidence and reevaluate Webster’s credibility. The chain of events on the night of the murderis clear. Appellantarrived at Webster’s homewiththe murder weaponin Baker’s car, asked Websterto retrieve it, and instructed herto give it toa friend who wasscheduledto be released from jail. (14 RT 5017-5020.) Webster placed the weaponin a closet, where it was retreived by sheriff's detectives on the following day. (14 RT 5019-5020; 16 RT 5536-5538, 5554-5567; 17 RT 6001-6006.) This gun waspositively identified as the murder weapon. (16 RT 5554-5567.) | Appellant also argues that the physical evidence did not match the prosecutor’s theory of the crime. (AOB 110-115.) First, he relies on the lack of blood evidence in Baker’s car, but this again ignores the fact that he ordered Bakerto clean her car and she did so using professional cleaning agents. (17 RT 5979-5980, 6008; 18 RT 6094-6095; 18 RT 6095.) Appellantalso relies on the defense expert’s testimonythat the bloodstain patterns on the shirt was inconsistent with the prosecution’s theory of the crime, the prosecution’s failure to connect the bloody footprints to his boots, the lack of fingerprint evidence, and the discrepancy in the amount of moneyappellant had in his possession. Simply put, there is no explanation as to why appellant’s fingerprints were not found on the cash register or murder weapon. There is no explanation as to why his shoeprints were not foundat the crime scene. There is no explanation for _ the discrepancy in the amount of moneyappellant hadin his possession at the time of his arrest and what was taken from the cash register. What was clearly established by the prosecution, however, was appellant’s fascination with disguises and paranoia of getting caught. He was undoubtedly cognizant of the consequences of his apprehension. 76 Appellant further argues that the evidence of motive pointed as strongly to Webster as it did toward himself. (AOB 115-117.) Not so. Appellant was a sophisticated career criminal who both craved committing crimes and wasin financial need. Just prior to The Office robbery and murders, he complained repeatedly of problems with the imposition of credit union fees and being “broke.” (Aug. CT of 11/10/09 Appendix B at pp. 29-30, 35-37; 12 RT 4524-4525, 4549, 13 RT 4666-4667.) Even defense evidence established that appellant had told his goodfriend Hall that, while in California, he was “tight on money.” (24 RT 7941.) Webster may havebeenin financial need, but there was no evidence linking herto The Office robbery. Rather, appellant used her to his advantage during his preparation of the robbery and attempt to dispose of the evidence afterwards. This was easy for appellant because he had complete control over Webster, who was described as someone who“did things to help people in order to be accepted.” (14 RT 5125.) Lastly, appellant argues that both Webster and Baker lacked credibility. (AOB 117-120.) It is elementary, however, that this Court may ~ not re-evaluate their credibility. If the circumstances reasonablyjustify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Catlin (2001) 26 Cal.4th 81, 139, internal quotations omitted.) Appellant largelyfocuses on Webster and points to various inconsistencies in her testimony. (AOB 117-119.) Any inconsistencies in her testimony, however, were resolved by the jury in favor of the prosecution. (People v. Lee (2011) 51 Cal.4th 620, 632, quoting People v. Maury (2003) 30 Cal.4th 342, 403 [“Conflicts and even testimony whichis subject to justifiable suspicion do notjustify the reversal of a judgment, for it is the exclusive provinceofthetrial judge or jury to determinethe credibility of a witness 77 andthe truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; welook for substantial evidence.”].) In sum, any error was harmless given that appellant’s statements were largely cumulative of other prosecution evidence. Additionally, any error in admitting the statements was harmless beyond a reasonable doubtin light of the overwhelming evidenceofhis guilt. II, THE TRIAL COURT PROPERLY ADMITTED RELEVANT EVIDENCE OF WEBSTER’S FEAR OF APPELLANT AS WELLAS THE REDACTED TRANSCRIPT OF HER POLICE INTERVIEW Appellant next contendsthat the trial court abusedits discretion when it admitted evidence ofhis past crimes and acts of violence as relevant to Webster’s fear of him and hercredibility. Specifically, he challenges the following items of evidence: (1) his altercations with Greg Nivens and Randy Hobson; $! (2) his statementsto Webster that he was an ex-convict, a bank robber, and had committed past robberies while using Nu-skin; 6 (3) his statements to Webster that he had hurt and killed people in the past; 68 and (4) portions of Webster’s taped interview. He further argues the limiting instructions were ineffective; therefore, the jury considered such evidence as an indication of his criminal propensity. (AOB 121-195.) ~ Respondent disagrees. A. Background On May13, 1996, appellant filed a motion to exclude statements made by Websterpertaining to 24 topics on the groundthat the evidence 6! These are item numbers 17 and 18 from appellant’s motion to exclude statements. (2 CT 460-461.) ® These are item numbers items 1, 8, and 13 from appellant’s motion to exclude statements. (2 CT 460-461.) 6 These are item numbers items 8 and 15 from appellant’s motion to exclude statements. (2 CT 460-461.) | 78 wasirrelevant and moreprejudicial than probative pursuant to Evidence Code sections 210 and 352, respectively. (2 CT 460-461; 10 RT 3872.) Later that morning, thetrial court entertained argument from counsel. (11 RT 4075-4122.) Addressing the challenged items of evidence in numerical order, the prosecutor argued as follows: 1. Item No. 1 (“Any reference to [appellant] being an ex-convict”) The relationship between Mary Webster and Charles Case is to a great extent founded upon what the defendant told Mary Websterabouthis prior life, that he was a bank robber, almost a Jessie James-type bank robber. As she has said, she was intrigued by people with — guys with tattoos, and guys with like an outlaw past. Andthe defendant gave her the impression that he was a bank robber and he wasoneofthe best, and usedto talk to her all the time about that. She knew,in fact, that he was an ex- convict. He told her that, and that she metat least one or more occasionshis parole officer who cameout to her residence where Case wasliving at the time to check on the defendant. If she can’t testify to that relationship, then the various things that occur during the course ofthe relationship are really bizzare. For example, she is with him when he buys somestuff called Nu-skin. Hetells her on at least one occasion,if not more, that he wants to get a wig and does,in fact, have a couple of wigs, one of which is hers, and sends away for somethings through the mail []. And the reason he wants these thingsis because, as he explainsto her, they will be good for a disguise. If she can’t testify that she knowsthat the defendantis an ex-con, thenit all kind of, for example, sits out there in a vacuum. I know I havesaid this before. But it just doesn’t make sense except that the defendantis telling her.these things and ~ convincing herofhis sincerity and his backgroundin that way. (11 RT 4076-4077.) The trial court asked if Webster wouldtestify to the reason why appellant purchased the Nu-skin and wigs, and the prosecutor 79 explained she wouldtestify that the “reason would be the Nu-skin,that the defendant told her that he would use it so that he wouldn’t leave any fingerprints. He can put the Nu-skin onthetips of his fingers and commit robberies and not leave fingerprints.” (11 RT 4077.) He continued as follows: In the course of her relationship, he discussed using wigs to change his appearance using the [Nu-skin] so he wouldn’t leave fingerprints. Using temporarytattoos so that it would cause someoneto have their attention drawn to what appears to be a tattoo that he could then get rid of and maketheir identification a week [sic] one or a false one. All of those things, from the People’s standpoint, show the defendant’s planning his deliberation and premeditation to ultimately commit robberies. So that he is truly thinking aboutall of the different ways to do it. In fact, Mary Webster wouldtestify, if permitted to do so, that the defendant wentout on one or more occassions andactually did dry runs when out, as if he was going to commit a robbery. And then came back andsaid that no, he didn’t do it, he changed his mind or chickened out or somethinglike that. (11 RT 4078.) 2. Item No. 8 (“Any reference to [appellant’s] prior record and/or references to hurting people in prior criminalactivities”) Again, this goes - - this establishes why she wasafraid of him and,at the same time, why she was somewhatintrigued by him and his outlaw mystiqueas hetold his stories and regaled her with his escapadesin the past - - the bank robberies and hurting people in robberies, pistol whipping victims. And I believe she said on at least one interview, bumping peopleoff. (11 RT 4083.) 3. ‘Item No. 13 (“Any reference to how he has used ‘Nu-skin’ in prior robberies”) And F would add, or planned to use [Nu-skin] in new robberies. I would submit, again, goes to his planning, his degree of commitment, if you will, to robberies. But it’s not just 80 a degree of commitment. It’s actually the mental process that he’s going through. (11 RT 4085.) 4, Item No. 15 (“Anyreference to how he did something to someone whoturned him into the police”): Specifically, this is in reference to a commentthe defendant madethat his friend and getaway driver in the 1978 robberies squealed or snitched on him and he, Mr. Case, had him killed or taken care of. [§] And that information imported to Mary Websteris part and parcel of her fear of him because she has, in fact, if you will, turned him in. (11 RT 4086.) 5. Item Nos. 17 (“Any reference to how hetried to kill three people, including strangling her son’s girlfriend”) and 18 (“Any reference to a physical assault on Greg Nivens”): Seventeen and Eighteenrelate, are tied together. And that is Mary Webster on one occasion, her son Greg Nivens, was doing something towardsher, not necessarily physical, but smarting off to her verbally or something. And Greg Nivensis an adult who is developmentally disabled. At any rate, Greg Nivensdid or said something towards Mary. The defendant got mad about that and hit him in the face. Andthere was some — I don’t know if it was a bloody nose as a result of that. I believe police may have been called, but the defendant did not get arrested at the time. And Mary Webster stood up for him atthe time. On anotheroccasion,the defendantgot in a fight with and beat up a roommate who wasa person whowasa [housemate] ' of Mary Websterat the time, first name of Randy Hobson. And he, the defendant, hit Mr. Hobsonwith a fireplace pokerin the course ofthat altercation. All of these things add to Mary Webster’s knowledge that the defendant is capable of violence and has a short temper, 81 although he has never been harmful,directly harmful towards her. She knowsthat he can do harm. She’s seenit, and he’s certainly told her about it. That covers seventeen and eighteen. (11 RT 4087-4088.) Defense counsel argued that Webster nevertestified that she feared appellant and that she failed to immediately report the incident because she still loved him. (11 RT 4092-4094.) Thetrial court noted: Didn’t she say pretty muchstraight out in that interview with the detectives how afraid she was? [{] It wasn’t that she wasdriving around looking for a policeman to turn these bloody clothes over to. Thetestimony,as I recallit, is that well, he comes home and he’s gotall of these clothes that are covered with blood and gives them to her to get rid of. And she doesn’t leave immediately or even the following morning whensheis on her way- - is driving with this stuff in the back ofher car. She doesn’t go to someplace andcall the policeto tell them she’s - - it appears that she’s undecided about what she’s going to be doing with these clothes. She’s either going to get rid of them or she’s going to turn them over. She’s not sure whatshe’s going to do. That’s based on twothings: Oneis she’s afraid of Mr. Case, and the other one is she still loves him and doesn’t wantto believe that he would do something like this, even whenhehasall of these bloody clothes that he’s given her. He’s told her the story about how he killed two menin the poker gameor the card game. (11 RT 4092.) Defense counsel arguedthat the fear obviously created underthe circumstances of having someone appearat one’s front door, announcing that he has just killed two people, and producing bloody clothing was sufficient evidence of Webster’s fear of appellant. (11 RT 4092-4093.) It wastherefore unnecessary to introduce additional evidence, including the fact that he had committed crimes in thepast, of her fear of appellant. 82 Counsel further argued that the prejudicial value of the evidence outweighed its probative value. (11 RT 4093.) Thetrial court responded as follows: The defense problem is he introduced it himself because it’s his method of getting her to do what he wants her to do. He’s impressing her with whathe saysin his past, whetherit’s all proved ortrue in part or mostly untrue, whateveritis, whetherit’s true or not, he’s telling her this. She’s believing it. She’s impressedbyit and intrigued by it. And becauseofthat, she does someofthese other things. And whenthecritical momentarrives, when he hands her the bloody clothesandtells herto get rid ofit and tells her how to dispose of the gun, the gun wasto be — the clothing wasto be disposed of right away - and the gun wasto be hidden and held for somebodyelse. That’s pretty much the way she was going about doingit. She had the clothing with it, but she didn’t have the gun when she was driving around. The gun wasbackat the house. She was going to get rid of the clothing and seal that. Once that was accomplished, worry about the gun later. And that is what it looked like. That’s I think a reasonable inference to be drawn from her actions based on whatthe testimony has been from her. ‘(11 RT 4094.) Defense counsel argued that Webster’s fear was “generated primarily” by the detectives when they suggested appellant would possibly kill her in his attempt to eliminate witnesses. (11 RT 4094.) The prosecutor pointed outthat, at the beginning of the interview, Webster told the detectives that she wasreluctant to be “honest” with detectives because she was “afraid, to. Mylife might be in danger.” (11 RT 4095.) The prosecutor further argued that she refused to produce the gun because appellant mayreturn for it, learn that she turned him in, and that her life would be in danger. The prosecutor additionally argued that Webster’s credibility was in issue. (11 RT 4096.) 83 Defense counsel again argued that Webster’s fear of appellant based on what he had donein the past was inadmissible, and the trial court replied: Well, that’s the relevance of it. He wants to put himself in a bad light to Mary Webster becausethat’s good for him. And now that we’reat the trial, putting himself in a bad light with Mary Webster can be bad for him. Unfortunately, putting himself in a bad light with Mary Webster is what motivated her - to do someofthe things that she did. Andit’s obvious from the passage that Mr. Druliner has just read into the record and from the tape itself that’s been ~ admitted in evidence of a previous in limine motion, she harbors a substantial and signficant fear of the defendantin this case. Andshe wasafraid that her ownlife would definitely be in danger unless she followed his instructionsto theletter. (11 RT 4097.) Thetrial courtthen ruled as follows: 1. Item No.1 Numberone, reference to Mr. Case being an ex-convict. {{] And Mr. Druliner’s explanation included [Nu-skin], buying [Nu-skin] with her so that he can do robberies, that he had a wig, another way to do robberies and he would provide temporary tattoos to undermine any identifications that were made ofhim and making dry runs on robberies. Regarding the [Nu-skin], the wigs and the temporary tattoos, that appears to the Court to be particularly relevant and the probative value would outweigh any prejudicial effect there. Becauseat the time he’s talking to Mary Webster, whichis before his relationship with Jerri Baker, his plan is to commit robberies, at least as stated to her, commit robberies and foil identifications by disguising himself. - The evolution of his plans reaches its independentpoint whenhe’s talking to Jerri Baker in that conversation in the back yard where his complaints have evolved from undermining eyewitness identification to eliminating eyewitnessidentification by eliminating eye witnesses by killing them during the course of a robbery. 84 So this is evidence of premeditation and deliberation, so far as how this plan with the gun, howit’s formed and howto carryit out. Asfar as his being an ex-convict is concerned,that’s interwoven with the rest of these statements and the Court is going to admit that with a limiting instruction. Insofar as specific acts that Mr. Case engaged in with Mary Webster such as the buying of a [Nu-skin], buying the gun, buying the bullets, that will be admitted without the admonition of the limiting instruction. (11 RT 4104-4105.) Following a defense objection, the trial court excluded any referencesto a “dry run,” but would admit evidencerelating to appellant associating with ex-convicts. (11 RT 4105-4106.) 2. Item No.8 Numbereight, referencesto his prior record or reference to him killing people in prior criminal activity. [{] That’s going to be admitted. But, again, with a limiting instruction, that Mr. Case’s allegations of his past are offered not for the truth of the matter asserted therein. It is not to show thathis is, in fact, what he’s donein the past but to explain why Mary Webster was impressed andintrigued with him and whyshe followedhis instructions after he gave her the bloody clothes and the gun. (11 RT 4108.) Thetrial court clarified that such referencesshall be general, rather than specific, references. (11 RT 4109.) 3. Item No. 15 Numberfifteen, how he did something to someone who turned him into the police, that will be admitted. Again, not for the truth of the matter asserted but to show its effect on Webster. (11 RT 4112.) The court continued as follows: Unfortunately, for the defense, that’s a statement that whetherit’s true or not, let’s assumethat it’s not true. Butstill in the contextofall of the rest of this and in the contextoftheir relationship explains her actions on the date that she’s driving him around with these bloody clothes in the car because, again, 85 she’s not decided that she’s going to drive directly to the police departmentor sheriff's department and turn these thingsin. She’s still turning over in her mind whatshe is going to do with it. | Doesn’t make the decision to turn them in until she sees that police officer on H Street. Andso, again,it’s not admitted for the truth of the matter asserted. It’s, again, to show its effect on the hearer. And I don’t expect there is going to be — the prosecution will not be permitted to present evidence of someone whowasallegedly killed at Mr. Case’s direction some other time someother place. But, again, this is somethingthat he told her, which the context of their relationship becomes more meaningful when compared with the event that occurred later on. (11 RT 4112-4113.) 5. Item Nos. 17 and 18 Then we have numberseventeen. The Court will allow Mary Websterto say that she has seen Mr. Case in two physical altercations. That would be the extent of it. No details about weapons,specifically, the fireplace poker. [{]] She has seen him in two physical altercations which would presumably support her belief that he was.a man of his words. [{] Eighteen is the - same. (11 RT 4114.) Attrial, during Webster’s cross-examination, the prosecutor offered a redacted tape of her initial detective interview on June 21, 1993. (17 RT 5801-5802; Augmented CT 6650-6740 [Exhibit 93-A].) Although the - prosecution had already editted portions ofthe tape, the defense wished to edit additional portions of the interview. (18 RT 6159-6160.) The objections were as follows: 1. Del Paso Heights Reed: It’s acard room. Wegot two dead people. Webster: Why would hetell me it was Del Paso Heights? 86 Reed: Why would he comeandtell you anything? That whole thing was stupid. What we’retelling youis, is that’s what it lookslike to us. Webster: You — are you serious right now? Reed: Absolutely. (Augmented CT 6668.) Thetrial court admitted this portion of the transcript into evidence. (18 RT 6171.) 2. Boasting about the killings Edwards: He wantedto get — boastthe fact that he killed somebody, but didn’t wantto tell you the facts so you could put two and two together. But, you’re a smart enough womanthat you started putting things together even though helied to you. (Augmented CT 6669.) Defense counsel argued as follows: The officer — and it appears the officer is speculating as to why he wouldtell her this story. It’s like almost an argument you can maketo the jury. Well, here’s the reason whyhetold ~ the story, he had — like, to boast about it. [{] I don’t see how this would affect her state of mind. It’s just the officer offering sometheory as to why he wouldtell this story; and, certainly, speculation on his part. (18 RT 6172-6173.) The prosecutorreplied: What Mary Webster is demonstrating to the officers here is resistance to what they had presented to her. And, as it goes on | through this statement, Mary Websteractually, until the very end, doesn’t concedethat she should give up the gun northat Case is responsible for The Office. And so this showsthe degree to which sheis resistant. And the comments by Detective Edwardshereare certainly not harmfulor prejudicial to the defendant in the legal sense of prejudicial. And I would submit that they show the context of what’s going on and the degree of resistance of Mary Webster. Thetrial court ruled as follows: I think it’s admissible for that purpose, and I think the probative value outweighs any possible prejudice. I don’t see thatthere is that much,if any, prejudice from those lines. I will 87 overrule the defense objection to that portion. I think it definitely showsthe efforts of the detectives to convince Mary Webster to cooperate, and it provides a good lookat herstate of mindat that time, which was an unwillingness to believe and an unwillingness to cooperate. (18 RT 6173.) 3. Detective Reed’s reasons for believing appellant committed the murders Reed: The caliber of the weapon, numberone. All the blood on his boots. I can’t go into great detail about the scene, but because of the way the bloodis on those boots andstuff,it all justfits. Okay, the time — Webster: But, how do you know? Reed: Thetimefits. Webster: Okay. What about the time that the -- you know, these people supposeto -- Reed: Sometime between 8:00 and 10:00 — and 9:30. 8:30 and 9:30. Right in that area. . Webster: (Whispering) He wasat myplaceat 10:00. Reed: See what I’m saying? You’re talking about a thirty-minute drive. Webster: Yea. I’m (unintelligible). Reed: (Unintelligible). Webster: (Unintelligible). Reed: So, Mary,that’s neither here nor — . Webster: Yeah, but — Edwards: Suddenly wantedto getrid ofthe clothes. Boastin’ about doing two people. Webster: Well, it’s two people, but he told me they was Black. 88 Reed: — Okay. Well, he’s lying to you, Mary. Edwards: He’s lying about certain things, because he doesn’t want you to try and put things together. But, you’re a smart enough womanthat you can. (23 Augmented CT 6670-6671.) Defense counsel argued as follows: Correct. And whatthis consists ofis the officers again making their argument to convince Ms. Webster that the defendantis guilty of the crimes that occurred at The Office bar andit is not admissible for the truth of the matter simply because it’s hearsay andthe factis that it does not further demonstrate Ms. Webster’s state of mind, which has already been demonstrated that she’s resistive of giving up the gun. And that’s basically what they are trying to get at this pointis the gun. The purpose for which or one of the purposes for which the prosecution is offering this statement is to show herstate of _ mind at the time, which was that she wasin disbelief. I think that that’s amply demonstrated without having to bring in this inadmissible hearsay from the police officers, whichis, in essence, nothing more than argument that Mr. Case committed these crimes. Under 352, the prejudicial effect far outweighs any probative value. The probative value in this case would be the state of mind and, as indicated, there is example after example in this statementthat her state of mindis as the prosecution argues,resistant to efforts on the part of the police to obtain evidence that would implicate Mr. Case. (18 RT 6174-6175.) The prosecution responded: The conversation and the interview with Mary Webster on the 21st of June was longer thusthan this transcriptis right now. [{] What counsel would like to have happen would be to say okay, you’ve got a couple of examples of Mary Webster’s resistance. Let’s cutit off at this point in time. Butthe degreeof her resistance is demonstrated both by the length of the conversation, the interview and the amount of information providedto her by the detectives. [] I’m not 89 offering the detectives’ commentsto her for the truth of what they are saying. Theyare significant only to the extent that what her reaction is to them. So they are not being offered for hearsay purposes. Andthe depth ofherresistanceis of signficance both as to whatit is and how long she holdsontoit, and whatis contained in this portion is not prejudicial. Whatthe Court pointed out, I think in one ofthe earlier parts that you ordered deleted, had information concerning Val Manuel and things about Val Manuel’s backgroundthat actually have not come into evidence yet. And thus the prejudice was more obviousin that situation. Here, I don’t see the prejudiceat all. (18 RT 6175-6176.) | Thetrial court ruled as follows: I’m going to overrule the defense objection to this section. I believe that it does, as Mr. Druliner points out, showsthe resistance as that was offered by Mary Webster, that is, her strong desire not to believe that whatthe officers were saying wastrue and her desire not to cooperate with them. So I think this is a good example ofthat. (18 RT6176.) In light ofthe ruling, defense counsel requested thetrial court give a cautionary instruction prior to playing the tape to the jury, and the court agreed. (18 RT 6176-6177.) While the trial court stated such an instruction was fair, it noted that the evidence was “important to show the effort it took to get Mary Webster to cooperate.” (18 RT 6177.) 4. Appellant lied to Webster Webster: Whywouldhetell me Del Paso Heights whenit was in Rancho Cordova? Edwards: I don’t know. Webster: Shit. I hate a liar. Reed: Well, he lied to you. That’sfor (Unintelligible). Webster: Maybe you better check your records. I’m sure you found someonefor these two people. 90 Edwards: No. (23 Augmented CT 6674 [emphasis added].) Defense counsel objected to the statement, “[w]ell, he lied to you.” He arguedas follows: I think it’s been well enough communicatedto her by these officers that Mr. Case wasn’ttelling the truth. Just to keep saying he’sa liar, he’s lying to you — that’s her opinion, certainly, more hearsay. I don’t think that helps herstate of mind by them keep repeatingthat. (18 RT 6178.) Thetrial court overruled the objection: I think it shows the efforts they went through and it shows her state of mind as well because the previous line, Mary Webster says quote, “Shit. I hate a liar” close quote. [{]] Next line, “Well, he lied to you, that’s for (unintelligible.) [§] I’m going to overrule the objection. [{] I think it shows Mary Webster’s state of mind and I think it also shows at somepoint, she begins to come around. And this may be whereit begins. (18 RT 6178-6179.) 5. Explanation that the evidence points to appellant Immediately after Webster suggested that others were responsible for the Rancho Cordova shooting, the following colloquy occurred: Reed: Wewereout there, Mary. There is no other two. Webster: Whowasout there? Reed: Both of us. Edwards: He and I - Reed: All night. Edwards: -- were out there. Reed: All night long working on the crime scene. And I’m telling you that all this fits. I mean, he lied to you aboutthe circumstances, butit’s cards, ah — kinds of money... Webster: What wasthe deal? 91 Reed: Wedon’t know whyhedidit, except robbery maybe. Webster: He don’t need moneythat bad. Edwards: But, he had money. Reed: He did. Webster: And he gave me money. Edwards: Suddenly he had money. Webster: It was only a lousy hundred bucks. (23 Augmented CT 6674-6675 [emphasis added].) Defense counsel argued as follows: The problem is she asks the question: Well, who was out there? [{] And then Reed says both of them. [{] Then Edwardsjoins in and hesays, “He and I.” [{]] And Reedfinally volunteers this. We worked all night long working on the crime scene. I don’t have a problem with that. [{] But then he is saying, okay, I am telling youthis all fits. He might as well be saying look, Mr. Caseis guilty. It all fits. That’s the inference. He lied to you, butit’s cards, kind of money. [{] Mr. Caseis guilty. That’s exactly what Reed is conveying to Webster through this. And she simply asked well, were you guys out there. (18 RT 6180-6181.) Thetrial court ruled as follows: I think the point of this evidencehere is that in the face of all of the facts that she is given by the detectives, she still stubbornly refuses to believe that Mr. Case could have any involvement whatsoever in the Rancho Cordova shootings. I think what I am goingto do is admit it. However, same cautionary instruction applies to this becauseit’s not offered for the truth of the matter asserted. Thatis, that it all fits, that this evidenceis this or this evidence is that. But this is what the detectives were using to attempt to overcome Mary Webster’s resistance to them so that she would give them a gun. Because it’s obviouslater on here in the transcript that they desperately wanted that next one. (18 RT 6181.) 92 6. Explanation as to why appellant lied to Webster After Webster stated that appellant had only given her $100, she stated to the detectives as follows: Webster: I can’t believe this one. Wasted two people just for — you know,that’s what I’ve been trying to figure out. A lousy hundred bucks. He don’t need the moneythat bad. Edwards: Yes, you do. You feel he lied to you, Mary. Webster: But wait. But, what — you know, what reason (Unintelligible). Edwards: What reason? Probably to coverupa little bit? Probably hopefully that you wouldn’t put the one out in Rancho Cordova with the one in Del Paso. Webster: Oh,I’m sure-- Edwards: And he could look like a big man and — and throw fear into you, thinking — (23 Augmented CT 6675.) Defense counsel argued Edwards’s speculation was inadmissible hearsay andirrelevant as to Webster’s state of mind. (18 RT 6181-6182.) The prosecutor replied that this was simply part and parcel of the detectives attempt to convince Webster to give them the gun, and the statements related to Webster’s fear of appellant and her reluctance to turn over the gun. (18 RT 6182-6183.) Thetrial court ruled as follows: I think the cautionary instruction will coverthis is as well, that the officers are expressing certain theories of the case which they believe or maynotbelieve. [{] But, again, the jury is the final — makes the final determination as to what the facts are and that I think they’ll see that the primary purpose of what the officers are saying here is to get her to cooperate and give them the gun and any other evidence that she might have. Sothat’s the purpose of these efforts and whetherthe things they say turn out to betrue or not is really secondary. It does show a continuedresistance here. [{[] This will be admitted over the defense objection but with the cautionary instruction. 93 (18 RT 6183.) 7. Furtherassertion that appellant killed two people Edwards: You’re fearful of him. You’re afraid. That’s the reason you wantto keep the gun. : Webster: Right. He could change his mind. . Edwards: But, he killed two people, Mary. Webster: Bythe time I get back home, he might say he wantsit. Edwards: He killed two people. Let us look at the gun and provethat. Webster: Allright. Well, wait. Wait. Explain this to me one more time. That he — you wasatthe — is this for real? This is not no, um,-- Reed: I’ll show you somepictures if you want to see . them. Webster: I want to see something. Reed: They’re not very pretty. (23 Augmented CT 6676 [emphasis added].) Defense counsel arguedthat the statements were cumulative of other statements expressing their belief that appellant was responsible for The Office murders. (18 RT 6184.) Thetrial court admitted the evidence over defense objection and ruled as follows: At this point though,they are right down to the real issue here. [§] She’s reluctant to give up the gun because she’s afraid and she doesn’t wantto believe it and they are countering with he killed two people.. Give us this evidence. It’s the moral dilemmathat she faces, really, she has information and evidence which could link her former boyfriend to the death of these two individuals. And, yet, she still doesn’t want to give evidence against him. 94 (18 RT 6184.) Thetrial court stated that it would give a limiting instruction stating that the detectives were using certain interrogation and persuasive _ techniques. (18 RT 6184.) The court further stated that the evidence was admitted to show its effect on Webster’s state of mind andthe “lengths to whichthe officers had to go in order to convinceherthat she should cooperate. They are pulling out all the stops here.” (18 RT 6185.) 8. Further statements that appellant was responsible for The Office murders Edwards: Believe me. Everything that he told you we’re telling you, right? They match, don’t they? Webster: You haven’t told me nothingyet. Edwards: Weagreed with everything that he said. Webster: Yea, but why? Whydoesit have to be Casey? Why? Edwards: Because hedidit, that’s why. Webster: Whyyoutelling me it was two Black men,for one? Edwards: Whydid he? Reed: Is that Mr. Casey? Okay. You gota strong stomach? You sure you wantto look at these pictures? You sure? Here’s anotherpicture. (23 Augmented CT 6678.) Defense counsel argued that this was cumulative evidence ofthe belief that appellant committed the murders at The Office. The prosecutor noted that the significance was Webster’s continued resistance despite the efforts to convince her otherwise. (18 RT 6185.) The trial court admitted the portion for the same reasonsas set forth above: it was merely an attempt to have Webster cooperate. (18 RT 6185-6186.) 95 9. Further statements that appellant was responsible for The Office murders During the inteview, Webster expressed her concern of appellant killing her if she failed to produce the gun following his requestforit. (23 Augmented CT 6682.) Edwards explained that he needed the gun to get appellant off the street, and Webster suggested that he find another way to do so. (23 Augmented CT 6682-6684.) Defense counsel then objected to the following: | Reed: _We’re going to have to take him offthestreet. He’s not going to come after you because I am convinced he’s the one that did this. We need the gun with your coop-- Webster: - You’re convinced. Reed: Weneedthe gun — Webster: What happensif you’re wrong?! (23 Augmented CT 6684.) The objection was overruled andthetrial court tuled as follows: | I think the Court is going to exclude lines 14 through 18 inclusive and admit the balance of applying the 352 balancing test. I think it is probative that I think it showsthatsheis at this point, she’s beginning to — resistance is beginning to crumble. (18 RT 6188.) 10. Detectives’ opinions Reed: He’s not goingto get out. Webster: That’s what I’m afraidof. Reed: He’s not going to get out. Not from this type of crime. _ Webster: Bank — you goingto tell me right now? Reed: (Unintelligible). Webster: ThatI can have a good nightsleep. 96 Reed: Yes. I wouldn’t sleep with him onthestreet, if I were you, under the circumstances. Webster: If. Ifhe did this. If— Reed: I’m telling you, Mary, he did — Edwards: Mary, you’re still hanging on to that thought. Reed: You don’t wantto believeit, but it’s true. Webster: Well, this is a — a— 2K 3K Webster: And how’dhe get — how’d heget the blood on his shoes? He must have been — Reed: From underneath here. Webster: Where — where do you think he was? Reed: He wasprobably standing right here. See the blood came under here. See that, that — that’s probably footprints in blood, which lead out into (Unintelligible) bar. Webster: Oh,that’s the floor? Reed: Yeah that’s the floor. (23 Augmented CT 6685-6686.) The court again found the evidence admissible because thedetectives were attempting to “confirm[] with the evidence over and overagain to try to get her to cooperate.” (18 RT 6190.) During the testimony of Detective Reed, the redacted version of Webster’s June 21, 1993, interview with Detective Edwards and him was played for the jury. (18 RT 6338-6341 [Exhs. 94, 94-A].) Prior to playing the tape, the jury was admonished as follows: During the interview, Detective Edwards and Detective Reed will tell Mary Webster certain facts about the investigation. [§] You should keep in mindat all times that the jury determines whatthe facts are. And that at the timethat this interview was conducted, June 21st, 1993, first, the investigation 97 was no wherenear complete. Second, the purposeofthis interview was to persuade Mary Webster to cooperate with law enforcement. And,for that reason, the detectives are permitted to shade the facts, if that is necessary, in their judgmentto persuade the individual to whom they are speakingin thiscase, Mary Webster, to cooperate. So you should not believe that Detective Reed or Detective Edwardsat that time had any special knowledge of what the truth is in as far as this case was concerned. [{] Again, you will be the ultimate finders of the facts in this case. [{] And,finally, this tape and the statements of Mary Websterare not offered for the truth of the matter asserted in those statements but to explain and demonstrate for you Mary Webster’s state of mind at the time the interview was conducted. So that you may consider that if you find it relevant in resolving other issuesin thistrial. (18 RT 6340-6341.) B. Law on Prior Criminal Conduct Evidence Code section 1101 governs the admissibility of uncharged criminal conduct. Evidence of misconduct other than current chargesis not admissible to prove that the defendant has a bad characteror criminal disposition. (Evid. Code, § 1101, subd. (a).) However, this evidence is admissible to prove a disputed material fact, such as motive, opportunity, intent, preparation, commonplan or scheme, knowledge,identity, and absence of mistake or accident. (Evid. Code, § 1101, subd. (b); People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.) To be admissible, the uncharged misconductordinarily must be sufficiently similar to the current charges to support a rational inference concerning a material fact at trial. (People v. Ewoldt, supra, 7 Cal.4th atp. 393.) The degree of similarity needed to show relevance varies depending uponthe type of fact that the uncharged misconduct is offered to prove. (Id. at pp. 402-403.) “The greatest degree of similarity is required for evidence of uncharged misconductto be relevant to prove identity.” (/d.at 98 p. 403.) “A lesser degree ofsimilarity is required to establish relevance on the issue of commondesign or plan.” (People v. Kipp (1998) 18 Cal.4th 349, 371, citing People v. Ewoldt, supra, 7 Cal.4th at p. 402.) And, “{t]he least degree of similarity is required to establish relevance on the issue of intent. For this purpose, the uncharged crimes needonly besufficiently similar [to the charged offenses] to support the inference that the defendant probably harbor[ed] the sameintentin each instance.” (id.at p. 371, quoting People v. Ewoldt, supra, 7 Cal.4th at p. 403, internal quotation . marks and citations omitted.) This Court has set out three factors for a trial court to consider when deciding the admissibility of evidence of other offenses: “(1) the materiality of the fact to be proved or disproved, (2) the probative value of the other crime evidence to prove or disprove the fact, and (3) the existence of any rule or policy requiring exclusion even if the evidenceis relevant.” (People v. Hawkins (1995) 10 Cal.4th 920, 951, abrogated on other grounds in People v. Lasko (2000) 23 Cal.4th 101, 110-111.) An appellate court reviewsthe trial court’s determination of admissibility under Evidence Codesection 1101 for abuse of discretion. (People v. Gray (2005) 37 Cal.4th 168, 202.) Underthe abuse ofdiscretion standard, where “a discretionary poweris inherently or by express statute vestedin the trial judge, his or her exercise of that wide discretion must not be disturbed on appeal except on a showingthat the court exercised its discretion in an arbitrary, capricious or patently absurd mannerthat resulted in a manifest miscarriage ofjustice.” (People v. Jordan (1986) 42 Cal.3d 308, 316.) With respect to uncharged misconduct, it is well-recognized that, even if prior uncharged conduct evidencesatisfies the Ewoldt requirements for admission,it is still subject to a prejudice argument under Evidence Code section 352. Thus, relevant evidence ofuncharged misconductis admissible if its “probative value ... is ‘substantially outweighed by the 99 probability that its admission [would] ... create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Ewoldt, at p. 404, quoting Evid. Code, § 352; see also People v. Kipp, supra, 18 Cal.4th at p. 371.) In People v. Doolin (2009) 45 Cal.4th 390, 439, this Court explained the concept of “prejudice” as the term is used in Evidence Code section 352 as follows: The “prejudice”referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendantas an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.” [{] The prejudice that section 352 is designed to avoidis notthe prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. Rather, the statute uses the wordin its etymological sense of “prejudging” a person or cause on the basis of extraneous factors. In other words, evidence should be excluded as unduly prejudicial whenit is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon whichit is relevant, but to reward or punish one side because ofthe jurors’ emotional reaction. In such a circumstance, the evidence is unduly prejudicial because ofthe substantial likelihood the jury will use it for an illegitimate purpose. (See also People v. Jablonski (2006) 37 Cal.4th 774, 805; People v. Waidla (2000) 22 Cal.4th 690, 717-718; People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) Thus, the “prejudice which exclusion of evidence under Evidence Codesection 352 is designed to avoidis not the prejudice or damageto a defensethat naturally flows from relevant, highly probative evidence.” (People v. Karis (1988) 46 Cal.3d 612, 638.) “Under Evidence Codesection 352,the trial court enjoys broad discretion in assessing whetherthe probative value of particular evidenceis outweighed by concerns of undue prejudice, confusion or consumption of time.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) Evidentiary 100 rulings under Evidence Codesection 352 “will not be disturbed, and reversal ... is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd mannerthat resulted in a manifest miscarriage ofjustice.” (People v. Foster (2010) 50 Cal.4th 1301, 1328-1329; see also Rodrigues, at p. 1124.) C. The Trial Court Properly Admitted Relevant Evidence of Appellant’s Uncharged Prior Bad Acts and Webster’s Taped Interview with Sheriff’s Detectives The nature of appellant’s relationship with Webster was an overarchingfact of critical relevance. The foundation of this relationship was appellant’s incessant representations of his criminal past as a highly sophisticated and dangerous bank robber. To say that Webster foundthis impressive andintriguing, yet fearful, would be an understatement. Appellant used these tales to control Webster, which wasplainly relevant to her credibility. 1. Evidence of Appellant’s Altercations with Nivens and Hobson had Substantial Probative Value becauseit caused Webster Fear, which was Highly Relevant to Her Credibility Appellant argues this evidence was of minimal probative value becausehe did not dispute Webster’s fear of him or the nature of their relationship, the evidencedid not establish that the altercations caused Webster’s fear, and was cumulative of other evidence of her fear ofhim. He further argues that the evidence ofhis “assaultiveness” was inflammatory and therefore prejudicial because he had not been prosecuted for those uncharged acts. Lastly, he argues that the limiting instruction was insufficient. (AOB 150-166.) He is wrong. While Webster’s general fear of appellant may have been undisputed,the basis of her fear wasfiercely contested as it was a crucial factor for the jury’s consideration in determining her credibility. 101 “Evidence that a witnessis afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness andis therefore admissible.” (People v. Burgener (2003) 29 Cal.4th 833, 869,citing People v. Malone (1988) 47 Cal.3d 1, 30; see also Evid. Code, § 780; People v. Valencia (2008) 43 Cal.4th 268, 302 [“Evidence offear is relevant to the witness’s credibility.”]; People v. Warren (1988) 45 Cal.3d 471, 481.) “An explanation of the basis for the witness’s fear is likewise relevant to her credibility and is well within the discretion ofthetrial court.” (Burgener,at p. 869, citing People v. Feagin (1995) 34 Cal.App.4th 1427, 1433; see also People v. Guerra (2006) 37 Cal.4th 1067, 1141-1142; People v. Avalos (1984) 37 Cal.3d 216, 232.) Appellant first presents the specious argument that Webster’s adoration and fear of him were undisputedattrial and thusirrelevant. Defense counsel initially argued that Webster nevertestified that she feared appellant and that she failed to immediately report the incident because she still loved him. (11 RT 4092-4094.) Afterthetrial court reminded defense counsel that Websterdirectly told detectives that she feared appellant during her interview, he instead arguedthat the basis of her fear was one that naturally flowed from the circumstance of having someone appearat one’s home with a bloodyshirt and boots. (11 RT 4092-4093.) Defense counsel attempted to argue that Webster’s fear was also caused by the detectives when they suggested appellant would kill her. (11 RT 4094.) At odds with defense counsel’s various theories was the prosecution’s _ evidence of appellant’s prior acts of violence andtall crime tales which caused Webster’sfear. | While appellant may not have disputed Webster’s general adoration and fear of him, the basis of these feelings, to wit appellant’s self-portrayal as a dangerous outlaw, was in fact fiercely contested. The basis of 102 Webster’s feelings for appellant was relevant in determining hercredibility. As acknowledged byappellant himself, ...a central question at trial was Webster’s credibility. The prosecutor argued that Webster was a scared former lover who turned appellant to the authorities out of fear (22 RT 7371), while the defense suggested that Webster was a scorned former lover who framed appellant for the crimes because heleft her for ‘another woman. (16 RT 5636-5637; 22 RT 7404.) (AOB 153-154.) Given the discrepancies for the basis of Webster’s fear, the prosecution wasentitled to put on its evidence because “{a]n explanation of the basis for [her] fear is likewise relevant to her credibility ....(Burgener, at p. 869.) Accordingly, it was crucial for the jury to understand the basis of Webster’s feelings for appellant in order to make a credibility determination. In any event, assuming arguendoappellant did not dispute the nature of their relationship, the prosecution retainedthe right to present evidence in support of its case. Webster was a crucial prosecution witness, and her credibility was very muchin issue. (See People v. Jones (2011) 51 Cal.4th 346, 372 [“Defendant argues that only identity was actually disputed at trial, and he did not dispute the perpetrator’sintentto rob.... Even ifthis is so, it is not dispositive. ‘[T]he prosecution'sburden to prove every element ofthe crimeis not relieved by a defendant's tactical decision notto contest an essential element ofthe offense. ’”]; People v. Burney (2009) 47 Cal.4th 203, 245 [“Even if defendant concededattrial his guilt of criminal eee.homicide, ‘“the prosecution is still entitled to prove its case and especially to prove a fact so central to the basic question of guilt as intent.””’”]; People v. Steele (2002) 27 Cal.4th 1230, 1243 [“Defendant’s not guilty plea put in | issue all of the elements of the offenses. [Citation.] Defendant argues that he concededattrial the issue of intent to kill. Evenif this is so, the 103 prosecutionis still entitled to prove its case and especially to prove a fact so central to the basic question of guilt as intent.”].) Appellant’s physical altercations with Nivens and Hobsonare of particular significance because they occurred within one to two weeksof him moving in with Webster, she personally witnessed the altercations, and they immediately alerted her that appellant was indeed capable of violence and had a short temper. As foundbythetrial court, this made Webster aware that appellant “was a man of his word.” (11 RT 4114.) Appellant argues the evidencefailed to “establish that the incidents ... were causally connectedto those feelings [of fear].” (AOB 157-15 8.) The strong and reasonable inference flowing from this evidence was that it was a contributing factor to Webster’s fear of appellant. To be sure, Webster testified that she initially did not ask appellant about the blood onhis clothing because she wasafraid of appellant and did not wantto “get slapped.” (14 RT 5008.) Logically, her fear of “get[ting] slapped” resulted from, inter alia, personally witnessing appellant attack her son and roommate. | Unlike the other evidence introducedto establish Webster’s fear of — apellant, the altercation.evidence was uniquein that she personally witnessed these incidents. (AOB 158-161.) While there wasplenty of evidence demonstrating her general fear of appellant as highlighted in the opening brief at pages 158-159, these altercations provided the jurors with an explanation of an actual basis for her fear. (People v. Burgener, supra, 29 Cal.4th at p. 869.) This was compelling evidence establishing the basis of Webster’s fear. Thus, the evidence of the physical altercations were not at all cumulative. Additionally, the evidence was neither inflammatorynorhadits prejudicial effect heightened because he was not prosecuted for those ‘incidents as suggested by appellant. (AOB 161-163.) When evaluating 104 prior unchargedacts pursuant to Evidence Codesection 352,it is important to consider whether “[t]he testimony describing the defendant’s uncharged acts ... was no stronger and no moreinflammatory than the testimony concerning the charged offenses.” (People v. Ewoldt, supra, 7 Cal.Ath at p. 405.) Such a circumstance decreasesthe potential for prejudice. (/bid.) Appellant cannot seriously contend that these incidents were inflammatory. Neither incident cameclose to the testimony concerning The Office murders where the victims, including an elderly woman, were marched into the ladies restroom and callously shot executionstyle. Instead, both altercations involved appellant essentially defending Webster against Nivens, who appellant perceived to be disrespectful to Webster, and Hobson, whoappellant perceived to be unreasonable in his demands for repayment on loan. The altercations were tantamountto barroom brawls. Thus,it cannotalso seriously.be arguedthat the prejudicial effect was exacerbated bythe fact that appellant was not prosecuted for the altercations. If there was any prejudicial effect, it was mitigated by the trial court’s limiting instruction to consider the evidence only as it related to Webster’s character or her feelings toward appellant: Ladies and gentlemen,this evidence is admitted for a - limited purpose. It is not admitted to prove the defendant, Mr. Case’s, disposition or his tendency to behave in a certain manner, but to establish the evidence as to the character of Mary Websteror her feelings toward Mr. Case. You can considerit for that purpose andfor that purpose only. (17 RT 5976.) - “The crucial assumption underlying our constitutional system oftrial by jury is that jurors generally understand andfaithfully follow instructions.” (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17, citing Francis v. Franklin (1985) 471 U.S. 307, 325, fn. 9.) Thus, in the absence 105 of evidence to the contrary, it is presumedthat jurors abide by limiting instructions. (People v. Waidla (2000) 22 Cal.4th 690, 725.) The instant limiting instruction clearly admonished the jurors to consider this evidence as to Webster’s character only and specifically not to considerit to show appellant’s propensity to commit crime. (17 RT 5976.) As argued above, appellant has failed to offer any evidence demonstrating that the jury was unable to understand or follow thetrial court’s instruction limiting the altercation evidence. This claim is without merit. 2. Evidence that Appellant told Webster that He was an Ex-Convict and Bank Robber who had Committed Past Robberies while using Nu-Skin and Various other Disguises had Substantial Probative Value because it Demonstrated the Nature of their Relationship and Her State of Mind atthe Time of Her Interview with Detectives | Appellant next argues that the evidence that he had told Webster that he was an ex-convict and bank robber who had used Nu-skin and disguises wasofscant probative value because (1) he did not dispute the nature of their relationship, (2) there was no showingthese statements caused Websterfear, (3) these statements were not evidence ofplanning for a future robbery, and (4) these statements were not interwovenwith his other statements regarding the use of disguises and further statements to Baker aboutfeeling pressure to commit a robbery. (AOB 167-171.) This argumentis similarly flawedfor the reasons set forth above. | Again, both the nature of their relationship andthe basis for the nature of the relationship were relevant and necessary for the jury’s determination of Webster’s credibility. Appellant’s actual statements to Webster were highly relevant becausehis self-portrayal as a highly sophisticated and - dangerous ex-convict and bank robber wasthe too] that he used to control her. His self-portrayal caused Webster fear, which she madeclear to _ detectives throughouther interview. 106 Additionally, appellant argues that his statements abouthis past use of disguises did not indicate a plan to commit a future robbery and that such. disguise techniques were not probative because there was no evidencethat such techniques were used during the crimes. (AOB 168-169.) Viewed in isolation, a statement regarding the past use of disguises may not tend to prove a future intent to commit a crime; however, it gave meaningto the other evidence, e.g. purchase of the gun, of his plan to commit a future robbery. Moreover, while there may not have been evidenceofthe actual use of such disguise techniques, the actual use mattered verylittle as the significance was that it demonstrated his formulation of a plan to commit a future robbery. Lastly, appellant argues that this evidence was highly inflammatory and not cured bythetrial court’s limiting instruction. For the reasonsset _ forth above, the evidence wasrelevant and highly probative. Although references to a defendant's prior criminal acts have the potential to prejudice the jury, the fact that such a reference has been made doesnot automatically rendera trial unfair. (See People v. Jennings (1991) 53 Cal.3d 334, 375 [rejecting argumentthat “testimony revealing [defendant's] ex-convict status, and his priorarrest, is so prejudicial that its admission must alwaysresult in reversal of the judgment’’].) “As the [United States Supreme Court] has recognized, ‘it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.’ [Citation.]” (People v. Ledesma (2006) 39 Cal.4th 641, 683 [onretrial, references to fact that defendant previously had been convictedofmurder | and sentenced to death were not incurably prejudicial].) Although appellant attempted to represent himself as a tough “bank robber” to the unsuspecting Webster, the jury was awarethathe,in fact, had never robbed a bank. (14 RT 4971, 4998.) Thus, the jurors were aware 107 that appellant greatly exaggerated his criminal jaunts. Additionally, the Jurors were instructed as follows: . Ladies and Gentlemen, sometimes evidenceis admitted for a limited purpose, and you’re instructed that you are to considerit only for the limited purpose for whichit’s offered. [] Here, the answerto the last question is not offered for the truth of the matter asserted, and that is that Mr. Case was, in fact, a bank robber, but to explain that that is what he said andit’s affect on the person whoheard it, Miss Webster. (14 RT 4993.) For the reasons as set forth above, appellant has failed to demonstrate the jury’s inability to follow the limiting instruction. The claim is meritless. 3. Appellant’s Reference to Having Hurt and Killed People in the Past was Substantially Probative Similarly, appellant argues that his statements of having harmed people in the past were of little probative value, extremely inflammatory, and prejudicial despite thetrial court’s limiting instruction. (AOB 173- 178.) Forall the same reasonsset forth above, statements that appellant had “bumpeda couple people off,” “knocked people off,” “slapped people,” and hadgotten rid of a snitch were properly admitted because they were relevant and highly probative to establish Webster’s fear. Appellant made these statements to impress Webster by convincingher that he was a cold- blooded ex-convict who had no problemseliminating or harming those who interfered with him in somefashion. As correctly stated by the trial court: Well, that’s the relevance of it. He wants to put himself in a bad light to Mary Webster because that’s good for him. And nowthat we’reat thetrial, putting himself in a bad light with Mary Webster can be bad for him. Unfortunately, putting himself in a bad light with Mary Webster is what motivated her to do some ofthe things that she did. 108 (11 RT 4097.) To be sure, Webster expressly told detectives that his representation of getting rid of a snitch directly caused her fear. (14 RT 5044.) Moreover, the jury received the following limiting instruction: Again, Ladies and Gentlemen,that’s not offered to prove the truth of the matter in the statement, that is, got rid of the [former] getaway driver; just that the statement was madeto her and what effect it had on Ms. Webster. (14 RT 5044-5045.) There is nothing in the record to indicate the jury was unable to follow this limiting instruction; therefore, the jury presumably carefully followed it. This claim is also without merit. 4. The Trial Court Properly Admitted the Challenged Portions of Webster’s Interview Appellant acknowledges that Webster’s resistance to the idea that appellant was responsible for The Office murders was relevant to the extent it tended to show that she did not attempt to frame him. (AOB 179.) He argues, however,that the challenged portion of Webster’s interview was inflammatory and highly prejudicial and unnecessary because there was cumulative evidence in the unchallenged portion of the Webster’s interview. (AOB 179-184.) Again, appellant is wrong. The challenged portions were necessary to establish the degree to which Websterresisted the idea of appellant’s involvementin The Office murders, which was highly probative of her credibility. The degree to which Websterresisted could only be realized by presenting a complete picture to the jury. As arguedby the prosecutor, “the degree of her resistance is demonstrated both by the length of the conversation, the interview and the amount of information providedto her by the detectives.” (18 RT 6175.) As further argued by the prosecutor, the significance of the comments made by the detectives were not the actual comments, but Webster’s reaction to the 109 comments. (18 RT 6175.) The trial court agreed. (18 RT 6177, 6181, 6185.) Similarly, the evidence was not cumulative in the sense that it was offered to demonstrate Webster’s resistance over a period of time. In response to defense counsel’s argumentthat the statements were ‘cumulative, the trial court responded: Atthis point though, they are right downto the realissue here. [{]] She’s reluctant to give up the gun because she’s afraid and she doesn’t wantto believe it and they are countering with he killed two people. Give us this evidence. It’s the moral dilemmathat she faces, really, she has information and evidence which could link her former boyfriend to the death of these two individuals. And, yet, she still doesn’t want to give evidence against him. (18 RT 6184.) Thus, the statements were highly probative of Webster’s state of mind andcredibility. | Appellant claims the statements madeby the detectives were highly inflammatory. (AOB 181-183.) Thetrial court, however, admonished the jury as follows: | During the interview, Detective Edwards and Detective Reed will tell Mary Webster certain facts about the investigation. [{] You should keep in mindatall times that the jury determines whatthe facts are. Andthat at the time that this interview was conducted, June 21st, 1993, first, the investigation was no where near complete. Second, the purposeofthis interview was to persuade Mary Webster to cooperate with law enforcement. And, for that reason, the detectives are permitted to shade the facts, if that is necessary, in their judgment to persuadethe individual to whom they are speakinginthis case, Mary Webster, to cooperate. So you should not believe that Detective Reed or Detective Edwardsatthat time had any special knowledge of what the truth is in as far as this case was concerned. [{]] Again, you will be the ultimate finders of the facts in this case. [{]] And,finally, this tape and the statements of Mary Websterare not offered for the truth of the matter asserted in those statements but to explain 110 and demonstrate for you Mary Webster’s state of mind at the time the interview was conducted. So that you may consider that if you find it relevant in resolving otherissuesin thistrial. (18 RT 6340-6341.) Appellant argues this limiting instruction was ineffectual because it was “unlikely the jury was able to disregard the content of the assertions that the officers made to Webster.” (AOB 183- 184.) As argued above, appellant again has failed to provide any evidence that the jury was unable to follow the trial court’s limiting instruction. The instruction specifically advised the jurors that the purpose of the interview wasto persuade Webster to cooperate with them and notto believe that the detectives had any special knowledgeofthe case as it was very early in the investigation. Thetrial court instructed the jury to only consider the evidenceasit related to Webster’s state of mindat the time of the interview. (18 RT 6341.) Thus, the evidence was properly admitted pursuantto Evidence Code section 352. D. Any Error was Harmless; there was no Federal Constitutional Error In any event, appellant argues the admission of the above challenged evidenceresulted in a miscarriage ofjustice and renderedhistrial fundamentally unfair in violation of the Due Process Clause of the | Fourteenth Amendment. (AOB 184-195.) Respondent disagrees. In the absence ofa violation of federal rights, reviewing courts evaluate whether “it is reasonably probable that a result more favorable to [defendant] would have been reachedin the absence ofthe error.” (People v. Page (2008) 44 Cal.4th 1, 37-38, citing People v. Watson (1956) 46 Cal.2d 818, 836.) Even assuming arguendothe challenged evidence was erroneously admitted by thetrial court, there was no reasonable probability that a result more favorable to appellant would have been reached given the overwhelming evidenceofhis guilt in this case. As more thoroughly 111 argued in ArgumentI.G, above, the prosecution presented an abundance of other evidence that substantially proved appellant’s guilt beyond a reasonable doubt. Additionally, the trial court also properly admonished ° the jury with the limiting instructionsas set forth above. Consequently, appellant received a fair trial. He maintains the evidence was improperly admitted and only served “to inflame the jury’s ‘emotions andhinderits ability to carefully and rationally assess the prosecution’s case for guilt.” (AOB 192.) But this argumentignores the purpose for which the evidence was admitted: to determine Webster’s credibility. While there may be a violation of due process wherethere are “no permissible inferences a jury may drawfrom erroneously admitted evidence,”this is not such a case for the reasonsset forth above. (McKinney v. Rees (9th Cir.1993) 993 F.2d 1378, 1384, italics and internal quotations omitted.) As explained by this Court, a defendant’s federal due process rights are not implicated when the disputed evidenceis relevant, material, and admissible on the grounds providedfor in section 1101, subdivision (b). (People v. Catlin (2001) 26 Cal.4th 81, 123.) Because the evidence wasrelevant and permitted the jury to determine Webster’s credibility, due process was not offended. The claim is meritless. IJ. THE TRIAL COURT PROPERLY ADMITTED EVIDENCE THAT, PRIOR TO THE OFFICE MURDERS, APPELLANT HAD SOLICITED GREG BILLINGSLEY AND BILLY JOE GENTRY TO ASSIST IN A ROBBERY Appellant next contendsthatthetrial court erroneously admitted evidence that he hadpreviously solicited Greg Billingsley and Billy Joe Gentry to commit a robbery prior to The Office robbery and murders becauseit failed to establish design or plan pursuant to Evidence Code section 1101, subdivision (b). (AOB 196-215.) Respondent disagrees. The evidence was not only admissible as evidence of design andplan, but also to establish motive and intent. 112 A. Background During the afternoon break on May 16, 1996, Greg Billingsley contacted the prosecutorat the District Attorney’s Office. (18 RT 4599.) During their walk back to the courthouse, Billingsley was upset with the way he wascross-examined by defense counsel and complained that he had “so much more”that he wanted to say. Specifically, he wanted to share that appellant had once asked him to commit a robbery with him. (18 RT 4600.) Billingsley then testified during a 402 hearing as follows: In April or May of 1993, while standing in the parking lot of the bowling alley, appellant stated that he “had something going on” and asked Billingsley if he wanted “to make some moneywith [him].”™ (13 RT 4600-4601.) Appellant explained he had a good “scam” because he was aware of when the bowling alley employee made the bank deposit and what time she would have the “bag of money.”(13 RT 4601.)Billingsley told appellant that he could not get involved in “anything like that,” and appellant “dropped”it. (13 RT 4601-4602.) Approximately two weekslater, after bowling, appellant repeated the offer to Billingsley while they were driving around in Baker’s car. (13 RT 4602-4603.) The two men were searching for Baker’s ex-boyfriend who had been“terrorizing the family” by slashing tires, breaking windows,and making threatening phonecalls. (13 RT 4603-4604.) ° On cross-examination, Billingsley explained that the first encounter occurred approximately six weeks prior to the murders at The Office. (13 RT 4607.) He also explained that, during this time, he met appellant and other co-workers at Manzanita Bowl every Wednesdaynight. (13 RT 4608.) °° On cross-examination,Billingsley stated that appellant told him that he had cased the bowling alley and knew that the deposits were made on Sunday mornings. (13 RT 4614-4615.) 113 Following the hearing, the trial court entertained initial arguments. The court, however, deferred ruling on its admissibility. (13 RT 4616, 4621.) On May28, 1996, after the parties had an opportunity to further investigate the issue, defense counsel announcedthat it had obtained further - discovery pertaining to an offer appellant had also made to Billy Joe Gentry regarding participation in a robbery. (14 RT 4955-4956.) On June 5, 1996, Billy Joe Gentry testified at the hearing on the in limine motion. (16 RT 5721.) Gentry worked with appellant at McKenry’s, and they becamefriends. (16 RT 5722-5723.) On October 31, 1992, Gentry and his family stopped at Webster’s house so that appellant and Webster could see his children’s Halloween costumes. (16 RT 5726- 5727.) Appellant and Gentry later walkedto the liquor store, and appellant ~ asked Gentry if he wanted to “make extra money beinga driver in a hold- up, and he’ll go in and doall the work and everything and I’1l just drive.” Gentry declined, and appellant told him not to mention the offer to anyone. Hedid so until the day after appellant’s arrest for murder. Gentry had read an article in the newspaperabout the murder,and told Billingsley about appellant’s offer. Billingsley replied that appellant had made him the same offer. (16 RT 5727.) | Following the hearing, the prosecutor argued that appellant’s intent and motive near the time of the robbery/murders wasin issue and relevant pursuant to Evidence Codesection 1101, subdivision (b). (16 RT 5746, 5749.) He noted that defense counsel’s opening statementindicated that Webster wasessentially the mastermind behind the robberies, appellant wanted nothing to do with the crimes, and that he had plenty of money. (16 RT 5747.) The prosecutor argued the evidence wasalso relevant to | demonstrate appellant’s preparation and deliberation towards doing the robbery. (16 RT 5748.) He argued: 114 It is not at all cumulative. Its probative value is extremely high, in that the subjects are the intent and motive of the defendantand his deliberation and premeditation, which the People talked about premeditation. But as the Court knows, that’s just a timing description. We’re focusing on deliberation, and this defendant over a prolongedperiod of time is making preparation for deliberation for committing a robbery and is expressing around that same periodoftime his familiarity with guns, his desire to get guns and his willingness to eliminate opposition if, in fact, he runs into it in a robbery, and I would submitit on that... (16 RT 5750.) Helater argued: Essentially we would be offering the solicitation to commit robbery on the intent, commondesign and plan and motive as Ewoldt points out in the application of Evidence Code Section 1101 (b). [{] The evidence, when offered for intent purposes, actually requires the least degree of similarity between the uncharged acts and the charged acts. Andall that has to really be shownis similarity to support the inference that the defendant probably harbored the sameintent or motive in the same instances. With regard to commondesign or plan, as Ewoldt points out, the need for similarity between the uncharged and charged act is somewhat higher. The evidenceis not, however, being offered to prove the criminal disposition or bad character of the defendant, but rather to prove that the defendant committed the charged offenses pursuant to the same design or plan used in the unchargedacts. [{] And the People would submit that the defendant has established, and we would be able to establish . through this evidence that the defendant had a general plan and scheme,that is, to commit robberies. And, if so, as the other evidencerelates to this, what he would doin dealing with the problem of witnesses at the robbery scene,or any resistance or - any problemsat the robbery scene, or any resistance or any problemsat the robbery scene, what action, if any, he would take. And we would submit that the evidence of our uncharged act, that being the solicitations, don’t simply demonstrate a mere 115 similiarity in result but such a concurrence of the common features that the variousacts are naturally to be explained as caused bythe general plan of which they are the individual manifestation. AndI think the evidence clearly showsthat this defendant was simply planning to commit a robbery or robberies and was going aboutit in a fairly methodical way. He needed a gun. He talked about needing a gun. He needed a getawaydriver. For example, he solicited two people to be his getaway driver. He was unable to have a getawaydriver, so then went to the ultimate step. That is, he gave himself the biggest headstart he could. He eliminated any and all witnesses and he eliminated his witnesses so he can walk outto his carand take —with regard to the evidenceat this time under Ewoldt, the court in Ewoldt points out that the factual similaries have to be established. We believe that they have. Then the Court has to go through a 352 analysis, and that analysis involves identifying if there is a principal factor in determining how strongit is, the tendency between that factor to demonstrating a commondesign. [{] And, as I pointed out, I think it’s extremely strong through the repetition of the events, any actions by the defendant with various people. Also, with regard to probative value, the Court must determine what extent the source of these uncharged acts evidence as independentof the charged acts evidence. And I would submit thatit’s entirely independent. [{] You have Greg Billingsley who has nothing to do with the charged acts, other than reference to the gun which he’s alreadytestified to. [J] You have Billy Gentry who has nothing to do with the chargedact, and heis obviously being solicited by this individual. And wealready have evidencethat will be presented through Jeri Baker with regard to this defendant’s statements to Ms. Baker concerning his desire to commit a robbery and not wanting to spendtherestofhis life in prison. And, therefore, he would eliminate all witnesses. Thecontract thenas to the prejudicial effect, and, as the Court knows,in order for 352 to actually bar evidence which has probative value, once the court finds that probative in orderto 116 keep it out under 352, that probative value has to be substantially outweighed by the prejudicial effect. I would submitthatit’s not outweighedat all. The prejudicial effect is actually what would be a defense recitation of the probative value,that is, that it hurts the defendant in the presentation of the evidencethat it is so right to the point that he would it to be quote “prejudicial or hurtful.” [{] But, otherwise, it’s not prejudicial in the sense that it would cause bias or prejudice or someotherreaction bythe jury. One ofthe questions actually Ewoldt bringsup1s this, that is, whether this evidence of the uncharged acts is more inflammatory than the testimony of the charged acts. And, in this instance, obviously,it’s not. It is evidence of mere preparation. And,likewise, as far as the 352 prejudicial effect, how remote in timeis it? [{] All of these solicitations are near _ in time to the crimes that the defendantis being charged with within and only a few months period of time, andall tied to this general plan and schemethathehas.... (17 RT 5767-5770.) . Defense counsel argued that the prosecution’s true reason for introducing the evidence wasfor the purpose ofidentity. (17 RT 5773- 5774, 5778-5779.) He further argued that, assuming the uncharged act amounted to the solicitation to commit robbery, that crime was not similar to the crimes, robbery and murder, for which appellant stood trial and also that such evidence was inadmissible to prove intent. (17 RT 5775.) . Consequently, he further argued that the prejudicial effect of admitting evidence of similar or uncharged acts would outweigh the probative value. (17 RT 5776.) Thetrial court ruled as follows: Thereare also the statements of Billy Joe Gentry and Greg Billingsley that the defendant solicited them to commit robberies. The statement of the testimony from Billy Joe Gentry would be somewhat moreelaborate than just that. It was that defendanttold him that he was going to get a gun. The defendant was very pleased when he showed him the gun that he 117 had obtained. And on the 31st of October 1992, the defendant asked him to be a get awaydriver in a robbery. (17 RT 5789.) And then Gary or rather Greg Billingsley stating that he wassolicited I believe on two occasions, to commit a robbery or do a job at the Crestview Lanesor the Crestview bowlingalley. [{] These statements taken in context with the real state of the evidence, which is going to be admitted and some of which has already been repesented to the jury, take on a new anddifferent meaning. For example, the testimony of Mary Websterthat while the defendant lived with her, he said he was a robber, purchased disguises, tattoos, would wear bulky clothing in order to thwart an identification, purchased Nu-Skin so that fingerprints would not be left during a robbery. The testimony of Jeri Baker, the defendantsaid hefelt compelled to commit a robbery, would leave no witnesses, all of this tends to prove that the defendant intended to commit a robbery and intended to avoid apprehension whenhedidit. This robbery of The Office was apparaently notthe result of a sudden impulse, but wasthe result ofplanning engaged in by the defendant, a great deal of deliberation. And while the target of the robbery, The Office may be something that was decided on the spur of the moment, the idea of doing a robbery, it appears it’s something that was present in Mr. Case’s mindfor along time. And it was an idea that finally culminatedin the act which took place on the 20th of June 1993. They are also admissible to show that this is a design or plan that the defendant had begunto think about early on and had donehis bestto put together until he finally succeeded in doing so bythis evidencehere,if the jury believesit. The question under 352,is the evidenceofthe solicitation to Billy Joe Gentry and Greg Billingsley so prejudicial thatit should not be admitted and it outweighs the probative value, and the same would hold true for the testimony of Detective Voudouris and Brian Curley. Andhere, this evidence, the Court finds is highly probative. Andthat the probative valueof it outweighs any 118 | possible prejudice that might be drawn from it. The Court would therefore allow the evidence to be presented. (17 RT 5789-5791.) Thetrial court also agreed to give a limiting instruction as to the grounds on whichit found the evidence admissible. (17 RT 5791-5792.) The prosecutor addedthatthe evidence wasalso offered to demonstrate appellant’s motive to eliminate the witnesses and that he needed the money. (17 RT 5793.) Thetrial court further found the evidence admissible for this additional purpose. (17 RT 5794-5795.) Atthe time ofthe final instructions, the jury was instructed as follows: The followingevidence was admitted for a limited purpose. The defendant’s statements to Greg Billingsley and Billy Joe Gentry concerning “doing a job” or making some “quick money.” This evidence is not admitted to establish that defendant has a criminal disposition or bad character, and you are not to considerit for that purpose. You may considerit on the issue of whether the defendant committed the charged offenses pursuant to an evolving or continuing schemeorplan, referred to in his commentsto Billingsley and Gentry relating to those unchargedacts. (23 RT 7615.) B. The Trial Court Properly Admitted Evidence of Appellant’s Prior Solicitations to Commit A Robbery as Evidence of Design or Plan, as Well as Motive and Intent, Pursuant to Evidence Code Section 1101, Subdivision (B); any.Error was Harmless Evidence Codesection 1101, subdivision (a) “prohibits admission of evidence of a person’s character, including evidence of character in the form ofspecific instances of uncharged misconduct,to prove the conduct of that person ona specified occasion.” (People v. Ewoldt, supra, 7 Cal.4th at p. 393.) Thus, evidence of other crimes or bad acts is inadmissible whenit is offered to show that a defendant had the criminal disposition or propensity to commit the crime charged. (Evid.Code, § 1101, subd.(a).) 119 Evidence Code section 1101, subdivision (b) “clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when such evidenceis relevant to establish somefact other than the person’s character or disposition.” (People v. Ewoldt, supra, 7 Cal.4th at p. 393, fn. omitted.) Specifically, Evidence Code section 1101, subdivision (b), provides that nothing in that section “prohibits the admission of evidence that a person committed a crime,civil wrong, or other act when relevant to prove somefact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident...) other than his or her disposition to commit such anact.” For evidence of uncharged misconduct to be admissible under Evidence Codesection 1101, subdivision (b) to prove such facts as motive, intent, identity, or common design or plan, the charged offenses and uncharged misconduct mustbe “sufficiently similar to support a rational inference” of these material facts. (People v. Kipp, supra, 18 Cal.4th at p. 369.) “The least degree of similarity ... is required in order to prove intent.” (People v. Ewoldt, supra, 7 Cal.4th at p. 402.) The uncharged misconduct need only be “sufficiently similar to support the inference that the defendant ‘probably harbor[ed] the same[or similar] intent in each instance.” (Ibid.; see People v. Memro (1995) 11 Cal.4th 786, 864-865 {defendant’s uncharged conduct of possessing sexually explicit photographs of young males ranging from prepubescent to young adult admissible to show intent to sexually molest a young boy].) If the trial court determines that uncharged misconduct is admissible under Evidence Codesection 1101, subdivision (b), it must then determine whetherthe probative value of the evidenceis “‘substantially outweighed by the probability that its admission [would] ... create substantial danger of undueprejudice, of confusing the issues, or of misleading the jury.” (People v. Ewoldt, supra, 7 Cal.4th at p. 404; Evid.Code, § 352.) 120 A trial court’s rulings under Evidence Code sections 1101 and 352 are reviewed for an abuseofdiscretion. (People v. Carter (2005) 36 Cal.4th 1114, 1149; People v. Lewis (2001) 25 Cal.4th 610, 637.) An evidentiary ruling shall not be reversed unless the appellant demonstrates a manifest abuseofthat discretion. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) A court abusesits discretion whenits ruling “falls outside the bounds of reason.” (People v. DeSantis (1992) 2 Cal.4th 1198, 1226.) Appellant argues that the solicitation evidence was inadmissible to show design or plan because there was “no question that the acts which formed the basis of the charged offenses had occurred.” (AOB 201.) Respondentdisagrees. This Court found as follows: To be relevant, the plan, as established by the similarities between the charged and uncharged offenses, need not be distinctive or unusual. Evidence that the defendant possessed a plan to commit the type of crime with which.he or she is charged is relevant to prove the defendant employed that plan and. committed the charged offense. “For example, evidencethat a search of the residence of a person suspected of rape produced a written plan to invite the victim to his residence and, once alone, to force her to engage in sexual intercourse would be highly relevant even if the plan lacked originality. In the same manner, evidencethat the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevantif these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts. Unlike evidence of unchargedacts used to prove identity, the plan need not be unusualordistinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense. [Citation.]” (People v. Ewoldt, supra, 7 Cal.4th at p. , 27 Cal.Rptr.2d at p. 659, 867 P.2d at p. 770.) (People vy. Balcom (1994) 7 Cal.4th 414, 424.) | Likewise, the solicited robberies and The Office robbery were subject to a similar plan designed by appellant. The commonfeatures shared 121 between the solicited robberies and The Office robbery involved appellant’s methodical approach of planning the crimes. Thesolicited robberies and The Office robbery both involved (1) appellant alone committing the actual robbery; (2) of a business establishment; (3) of which appellant had some familiarity; and (4) thus allowing him to case the establishmentin order to study the employee routines and general patterns of the establishment. (11 RT 4171, 4206, 17 RT 5834-5836, 6021-6023.) In addition, the solicited Crestview Lanes robbery as well as The Office robbery involved female victims. (12 RT 4437; 17 RT 6023.) While this pattern may not have been unusual, the circumstances were sufficient to support an inference that appellant used the same plan in committing the charged offense. The fact that he ultimately abandonedhis plan and commit The Office robbery/murders aloneisirrelevant. “These similarities support the inferencethat defendant{’s] [solicited robberies were] pursuantto a design or plan that he either employed or developed in committing the charged offense[].” (People v. Balcom, supra, 7 Cal.4th at p. 424.) The offenses weretherefore sufficiently similar that the prior uncharged offenses had substantial probative value, despite the differences between the offenses. Alternatively, the trial court found the evidence also admissible to show motive. (17 RT 5793-5795.) Ina criminalcase, “[p]roof of the presence of motiveis material as evidence tendingto refute or support the presumption of innocence.” (People v. Beyea (1974) 38 Cal.App.3d 176, 194-195.) Motive has been described as “an intermediate fact which may be probative of such ultimate issues as intent, identity, or commission of the criminal act itself... .” (People v. Scheer (1998) 68 Cal.App.4th 1009, | 1017-1018.) “[E]vidence of motive makes the crime understandable and | renders the inferences regarding defendant’s intent more reasonable.” (People v. Roldan (2005) 35 Cal.4th 646, 705, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) 122 The California Supreme Court has instructed that “the probativeness of other-crimes evidence on the issue of motive does not necessarily depend on similarities between the charged and uncharged crimes, so long as the offenses havea direct logical nexus.” (People v. Demetrulias, supra, 39 Cal.4th at p. 15, italics added.) However, “that a defendant previously committed a similar crime can be circumstantial evidence tending to prove his identity, intent, and motive in the present crime.” (People v. Roldan, supra, 35 Cal.4th at p. 705, italics added.) Motive was a material fact in dispute in this case and was made relevant by the defense whenit theorized that Webster had the motive and _ was the mastermind behind The Office robbery. (People v. Sykes (1955) 44 Cal.2d 166, 170 [““Motive is a material fact.”]; People v. Perez (1974) 42 Cal.App.3d 760, 767 [‘‘Motive is always relevant in a criminal prosecution.”].) It did so by presenting considerable evidence of Webster’s history offinancial struggles, thereby causing the solicitation evidence to be highly probative of appellant’s motive to commit a robbery. (Peoplev. Kovacich (2011) 201 Cal.App.4th 863, 893, citing People v. Argentos (1909) 156 Cal. 720, 726 [“[iJn a case where the identity of a person who commits a crime is attempted to be proven by circumstantial evidence,... , evidence of a motive on the part of a defendant chargedis always a subject of proof, and the fact of motive particularly material.”].) Thus,as set forth in more detail above, these uncharged solicitations were sufficiently similar to the charged offense to support the inference that appellant probably harbored the same motive in each instance. (See People v. Davis (2009) 46 Cal.4th 539, 604 [in a capital murdercase, the trial court properly admitted evidence of two prior sex crimes on other children to show that the defendant had a motive to sexually assault his victim]; People v. Demetrulias (2006) 39 Cal.4th 1 [in a capital murdercase, the trial court properly admitted evidence of a prior recent assault and robbery on 123 another victim to show that the defendant had a motive to rob his murder victim]; People v. Gallego (1990) 52 Cal.3d 115, 171 [in a capital murder case, the trial court properly admitted evidence of the defendant’s prior murder occurring undersimilar circumstances as the charged murderto show the defendant’s same motive]; People v. Walker (2006) 139 Cal.App.4th 782, 802-805 [in a defendant’s trial for murderinga prostitute, the trial court properly admitted evidence of three prior sexualassaults in order to show the defendant’s “‘common motive of animus against prostitutes resulting in violent battering interrupting completion of the sex act”); People v. Funes (1994) 23 Cal.App.4th 1506, 1518 [“Cases have repeatedly held that it is proper to introduce evidence of gangaffiliation and activity where such evidenceis relevant to an issue of motive or intent’”]; People v. Pertsoni (1985) 172 Cal.App.3d 369, 375 [evidence of a prior incident where the defendantshota person leaving the Yugoslav Consulate in Chicago wasrelevant to show that the defendant’s same ‘passionate hatred of the Yugoslav government impelled him to kill another manaffiliated with the Yugoslav governmentin a club].) Thesolicitation evidence wasalso admissible to show intent under Evidence Codesection 1101, subdivision (b). Evidenceof intent is admissible to provethat, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense. In provingintent, the act is conceded or assumed; whatis soughtis thestate of mind that accompaniedit. . (People v. Balcom (1994) 7 Cal.4th 414, 422, internal quotations omitted, citing People v. Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2.) Wehave long recognizedthat if a person acts similarly in similar situations, he probably harbors the sameintent in each instance, and that such prior conduct may be relevant circumstantial evidence of the actor’s most recent intent. The inference to be drawnis not that the actor is disposed to commit such acts; instead, the inference to be drawnisthat, in light of 124 the first event, the actor, at the time of the second event, must have hadthe intent attributed to him by the prosecution. (People v. Thomas (2011) 52 Cal.4th 336, 356, internal quotations omitted, citing People v. Gallego (1990) 52 Cal.3d 115, 171; see also Peoplev. Roldan (2005) 35 Cal.4th 646, 706.) . For the reasonsset forth above, the similarity in the planning stages of the solicited robberies and The Office robbery was highly probative of appellant’s intent to commit The Office robbery. In any event, error, if any was harmless. For the reasonsset forth in ArgumentI.G, above, there was overwhelming evidence of appellant’s guilt. The evidence was properly admitted for someother purpose than propensity as set forth in Evidence Code section 1101, subdivision (b). (See Argument I.D.) Thus, there was no federal constitutional error. The claim is without merit. IV. THE TRIAL COURT PROPERLY ADMITTED STATEMENTS MADE BY APPELLANT DURING SEMINARS FORROBBERY INVESTIGATORS Appellant also challenges the admission of his statement to robbery investigators that he would harm orkill anyone who.interfered with his robbery. (AOB 216-238.) Respondent disagrees. Appellant’s statements amountedto “generic threats” and were highly relevant to show his state of mind andintent to kill. A. RelevantProceedings Priorto trial, defense counsel filed a motion excluding two statements made by appellant: (1) a February 23, 1993, statement made during a luncheon hosted by the Sacramento Sheriffs Department where, in responseto the question “If you were committing a robbery and if somebodyresisted, what would you do?” Appellant replied, “I’d blow them away’; and (2) a statement made in between March and June of 1993 to 125 Bakerthat he would haveto kill any witnesses because he wasa career criminal and would die in prison if caught. (2 CT 432.) Defense counsel argued that the evidence wasirrelevant, inadmissible hearsay, and excludable pursuantto section 352. (2 CT 432-432.4.) On June 5, 1996,the trial court held a402 hearing. Sergeant Vourdouristestified that he first met appellant in the fall of 1992, during a meeting with ex-convicts of high-risk sex offenders who were recently released on parole. (16 RT 5682-5683.) Sergeant Vourdouris was part of the interview panel responsible for interviewing appellant. (16 RT 5683- 5684.) Following the interview, Sergeant Vourdouris and appellant’s parole agent visited appellant at McKenry’s. (16 RT 5684.) Sergeant Vourdouris asked appellant abouthis past crimes, including the 1979 robberies and rapes for which he was imprisoned, and appellant confirmed that he had committed those crimes. (16 RT 5685.) The menleft the cleaners and continuedtheir discussion at a fast food restaurant across the _ street. Appellant discussed his preference for nine millimeter automatics and for sawed-off shotguns, and howhe had grown up in Indiana and was accustomedto hunting and being around guns. (16 RT 5686.) During his contacts with appellant, appellant admitted that he was a “robber by trade” and that he committed the 1978 rapes and other sex-related offenses, but that those were crimes of opportunity. He was drunk and under the influence of cocaine at the time.®” (16 RT 5691.) Sergeant Vourdouris asked appellantifhe would beinterested in participating in a seminar with investigators. After some consideration, 6 Trial counsel did not object to this statement. (16 RT 5751.) °7 During cross-examination, Sergeant Vourdouris clarified that appellant made these admissions during their meeting at the fast food restaurant across thestreet from McKenry’s. (16 RT 5704.) 126 appellant later expressed his interest in participating in the seminar. (16 RT 5687.) In January or February of 1993, Sergeant Vourdouris set up a seminar with various investigators at the metro office downtown, which appellant attended. (16 RT 5687-5688.) Appellant made himself available to answer any questions. (16 RT 5688.) A question posed to him involvedhis willingness to use force during a crime. Appellant stated that “if somebody tried to stop him, he would be willing to use whatever force that it took.” (16 RT 5688-5689.) Another question posed to appellant involved what he would do if faced with resistance or interference during a robbery, and appellant stated, in an “extremely calm” and “very matter of fact” manner, that he was “willing to take them out.”(16 RT 5689-5690.) After appellantleft the forum, “most of the investigators that were present were extremely worried about Mr. Case being onthestreets.” (16 RT 5689.) Approximately four to six weeks later, Sergeant Vourdouris learnedthat appellant had previously spokenat a different robbery investigator’s luncheon. (16 RT 5690.) Brian Curley also testified at the 402 hearing. From1992-1993, Curley was a memberofBank of America’s corporate security team and attended a robbery investigator’s luncheon at Jose’s Restaurant, located on Fair Oaks Boulevard, in late 1992 or early 1993. (16 RT 5713.) Appellant gave a 20-minute presentation abouthis life experiences, includinghis robberies, and answered questions from the audience. (16 RT 5714-5715.) Someone asked if he had ever robbed banks, and appellant stated that he did not rob banks becauseof the security cameras. (16 RT 5715.) 68 During cross-examination, Sergeant Vourdouristestified that appellant understood he would be questioned abouthis prior crimes. (16 RT 5698.) He did not indicate any future plans of committing robberies. (16 RT 5702.) 127 Someoneelse asked what he would do if during the course of a robbery someone resisted, and hereplied, in a matter-of-fact manner and without emotion,that he “would blow them away.”(16 RT 5715-5716.) Curley recalled these three-year old statements because they were “most associated with my interests, which was banking, and then the comment which I thought wasextremely cold.” (16 RT 5716.) The prosecutor argued the testimony wasrelevant to demonstrate appellant’s knowledge “with regard to doing robberies”and the “need to use force if the situation cameup,his willingness to use force if the situation cameup, and notjust any force but the force that is equivalent to the phrase ‘take them out’ or ‘blow them away’ whichis deadly force.” (16 RT 5747-5748.) Specifically, the prosecutor argued that Vourdouris’s testimony was relevant becauseit established the following: (1) appellant liked guns; (2) was a robberby trade; and(3)thatif faced with resistance, appellant would “take them out.” (16 RT 5748.) With respect to Curley, the prosecutor found relevantthe facts that appellant indicated that he had never committed bank robberies because of the security cameras andthat he would “blow away” anyone whoresisted. (16 RT 5748-5749.) This was all relevant to appellant’s motive, intent, and preparation and deliberation towards commiting a robbery. (16 RT 5747-5748.) He further submitted that the statements were admissions within the meaning of Evidence Code ® During cross-examination, the following colloquy took place: [Defense Counsel]: And do yourecall the actual question that was asked? [Curley]: AsI recall, the question wasthatin situations in the course of a robbery, if you encountered someone who resisted you, what would you have done? [Defense Counsel]: ... That was talking about what he would have done in the past; is that correct? [Curley]: That wasthe nature of the question,yes. (16 RT 5720.) 128 section 1220, as well as statements indicating his present state of mind as to a future act. (17 RT 5771.) Thetrial court noted that appellant made the statement that he was a “robber by trade” at around the time he recruited Billingsley and Gentry to assist with a robbery. (16 RT 5752.) It then ruled as follows: Specifically, as Detective Voudouris testified, the - defendant was asked abouthis willingness to use force. His response was he would use whateverforce it took. He would be willing to take them out. Andthe statement by Mr. Curley, which accounts Mr. Case’s response to the question of what he would do if during a robberythe victimsresisted, the response was he would blow them away. It appears that these are statements under 1270 of the — 1250 of the Evidence Code,and they reflect an existing state of mind. It doesn’t appear that these statements were directed to what the defendant did or had donein the past had he encountered the situation where the victims resisted or how much force he was prepared to use during the prior robberies. From the testimony, it appears that they were speaking of what he would doif, in a robbery, he encountered resistance. [{] If 1250 allows such evidence,if it’s relevant to prove the declarant’s state of mind at the time subsequentto the statements, and the Karis case, K ARIS,at 46 Cal 3d, 612, at 636 and 637, the court talks about the admissibility of generic threats and states a defendant’s threat against the victim is relevant to prove intent in the prosecution for murder. The statements here in question did not specify a victim or victims but were aimedat any police officer who would attemptto arrest appellant. (17 RT 5785-5786.) Thetrial court continued as follows: Such a generic threat is admissible to show the defendant’s homicidal intent where other evidence brings the actual victim within the scope ofthe threats, hence, the statements were relevant and not excludable under Evidence Code section 1101. 129 The samereasoning leads to a conclusion that statements of intent of this nature reflecting intent to kill a particular category of victims in specific circumstancesfall within the state of mind exception to the hearsay rule, Evidence Code Section 1250. The evidence is therefore admissible unless the circumstances in which the statements were made,the lapse of time or other evidence suggests that the state of mind was transitory and no longerexisted at the time of the charged offense. Anything subject to a 1250 analysis is also subject to review by 1252, whichstates that the statement must be made under circumstancessuchasto indicate its trustworthiness. [J] Actually, the court has just stated the Code Section in reverse. [{] Basically, the exact language, evidence of a statementis admissible if the statement was made under circumstances such as to indicate its lack of trustworthiness. The question must be asked here about how trustworthy are these statements. That is, are they made underthe circumstancesor in a situation where the defendant might perhapsbetrying to impress the people for whom he was speaking to gain some benefit for himself, either real or — perceived. Herethis evidence hasto be taken in the context of the statement to Jeri Baker in her back yard when she discovers the defendantin a depression and responseto her inquiry. He said compelled to commit a robbery and would not leave any witnesses because he would go backto prison, he would never get out if he was caught. That statement takes place sometimeI believe shetestified in the in limine motionin the early spring of 1993, shetesitified. . Whenall of these things are taken into account, these statements appear to be trustworthy. They appearto be an accurate statement of the defendant’s state of mind ata time that he madethose statements, and they constitute a generic threat which unforunately cameto pass. (17 RT 5786-5787.) Thecourt continued: The Court will also take anaysis under Section 352 ofthe Evidence Code whichit’s required to do in these situations. It’s 130 required to do,first of all, the specific statements to Voudouris. There is no defense objection to the statement that defendant liked nine millimeter automatic and sawed-off shotguns. He liked guns andsaid he wasused to being around guns. That would be admissible. The January or February 19, 1993 meeting/seminar at the Metro office on 19th Street in the state building where various investigators were invited and the defendant wasavailable to answer questions, asked abouthis willingness to use force. Said he would use whateverforceit would take the quote “would be willing to take them out” close quote, would be admissible. (17 RT 5788.) The court excluded the testimonythat appellant was a “robber by trade.” (17 RT 5791.) At the conclusion oftrial, the jury was instructed with the following limiting instruction: Evidencewasalso admitted relating to defendant’s statement on two occassionsto law enforcement officers and ‘private security personnel regarding what defendant would do or would have done if he met with resistance during a rubbery. [{] Reference to his reaction to a certain situation that might occur during a robbery may be considered by you onthe issue of the existence of a specific intent or mental state which is a ncessary elementofthe crimes charged. The evidence would berelevant and admissible regarding the defendant’s mental state or intent or premeditation and deliberation. None of the evidence is admissible to show defendant’s bad character or disposition to commit crime. (23 RT 7615-7616.) B. The Trial Court Correctly Admitted the Statements Appellant Made to Robbery Investigators as Evidence of His State of Mind Appellant argues thetrial court erroneously admitted his statements because (1) his statements were not present threats but rather hypothesizing about what he would have donein the past; (2) the victims did not belong in the category of individuals of the purported threats; (3) the statements were remote; and (4) they wereirrelevant as to motive. Heis incorrect. 131 As appellant acknowledges,there is an established body of law permitting the admission of generic threats—statements of intentthat do not namea particular victim or time and place of the intended crime. When a defendant makes generic threats against a definable category of persons, the defendant’s threats are admissible to show his or her state of mind, intent, and motive if the evidence brings the victim within the threatened category. (People v. Karis (1988) 46 Cal.3d 612, 636.) For example, in People v. Rodriguez (1986) 42 Cal.3d 730, the defendant was charged with killing two police officers when they stopped him for driving a stolen vehicle, and thetrial court properly admitted evidence of a generic threat that he had madein the preceding months that he would kill any officer who attempted to arrest him. (/d. at pp. 756-758.) In People v. Karis, ~ supra, 46 Cal.3d 612, the defendant was charged with kidnapping two women,raping one, and shooting them both, one ofwhom died, and the trial court properly admitted a statement that the defendant had madethree days before the abduction that he would not hesitate to eliminate witnesses if he committed a crime. (id. at pp. 626, 635-638.) In People v. Lang (1989) 49 Cal.3d 991, the defendant was prosecuted for murder but claimed ~ he acted in self-defense. The court properly admitted a statement that the defendant had made a monthearlier that he would “waste any mother fucker that screws with me.” (Id. at pp. 1013-1016; andsee, e.g., People v. Cruz (2008) 44 Cal.4th 636, 651, 671; People v. Cartier (1960) 54 Cal.2d 300, 311; People v. McCray (1997) 58 Cal.App.4th 159, 172.) At the same time, the court in People v. Karis, supra, 46 Cal.3d 612, also observedthat a threat of future harm has “as great a potential for prejudice in suggesting a propensity to commit crimeas evidenceof other crimes,” a purpose for which such evidenceis not admissible. (Jd.at p. 636.) “Therefore, the content of and circumstances in which such * statements are made must becarefully examined both in determining 132 whetherthe statements fall within the state-of-mind [hearsay] exception,as circumstantial evidence that defendant acted in accordance with his stated intent, and in assessing whether the probative value of the evidence outweighsthat potential prejudicial effect.” (/bid.) But where the evidence establishes that the victim comes within the scope of someprevious threat, the evidenceis generally admissible “unless the circumstances in which the statements were made,the lapse oftime, or other evidence suggests that the state of mind wastransitory and no longerexisted at the time of the charged offense.” (/d. at p. 637.) Here, even assuming arguendo appellant’s statements are characterized as acts he would have takenin the past, his statementsstill formed “generic threats” that were relevant to his intent to commit The Office robbery. Appellant represented to robbery investigators that, if anyone interfered with his robbery in the past, he would have “blown them away,” whichis no different in meaning than having madea pastthreat to the same category of individuals. Whether the statementis “I would have blown them away”or “I will blow them away,”the import is the same: appellant would harm anyfuture person whointerfered with his robbery. This is a generic threat. (See, e.g. People v. Cruz (2008) 44 Cal.4th 636, 641, citing People v. Rodriguez, supra, 42 Cal.3d 730, 757 [prior threat ‘madein an unrelated incidentthree monthsearlier to “kill a deputy by shooting him in the back of the head was ‘manifestly admissible to show defendant’s state of mind’ at the time he fatally shot Deputy Perrigo in the back ofthe head.”).) | Additionally, respondent asserts that the trial court correctly ruled that the generic threat appellant made to Sergeant Vourdouris’s group was,at 133 the time,in the present tense.’ His testimony at the hearing madeclear that the hypotheticals posed were couchedin termsofthe present tense: “if somebodytried to stop him, he would be willing to use whatever force that it took.” (16 RT 5688-5689.) The other question involved what he would do if faced with resistance or interference during a robbery, and appellant stated, in an “extremely calm”and “very matter of fact” manner, that he | was “willing to take them out.” (16 RT 5689-5690.) Thefactthat the statement was madein the future tense is apparent from the reaction by the investigators in attendance, namely feeling worried about having appellant on the streets. (16 RT 5689.) The fact that appellant was aware that the seminar would focus on his criminal past is of no consequences. The hypotheticals were couchedin the present tense, and appellant responded accordingly. Appellant uses Sergeant Vourdouris’s clarification during histrial cross-examination testimony that appellant “wasrelating to what he would have donein the past had there been resistance.” (AOB 227.) This, however, is inappropriate. The trial court’s ruling can only be reviewed by whatit consideredat the in limine hearing. (See, e.g., People v. McKim (1989) 214 Cal.App.3d 766, 768, fn. 1 [in reviewing a trial court’s ruling on a suppression motion, reviewing courts are confined to the facts presented at the hearing]; People v. Flores (1979) 100 Cal.App.3d 221, 226,fn.2; People v. Hubbard (1970) 9 Cal.App.3d 827, 832.) Taking only into consideration Sergeant Vourdouris’s testimony during the in limine hearing, which isall the trial court hadbeforeit at the timeofits ruling,it ” Given Curley’s testimony on cross-examination,it is clear appellant’s statements represented what he would have done inthepast. Respondent, as argued above,still maintains that the statement was a “generic threat.” . 134 cannot be arguedthatthetrial court erroneously admitted the generic threats appellant made before the robbery investigators. Appellant also argues that Manuel and Tudordid notfall within the category of individuals who were subject to the generic threat because there was no evidenceofresistance. (AOB 229-230.) His definition of “resistance” only includes physical resistance, but that 1s too narrow. Resistanceis “the refusal to accept or comply with something.” (http://oxforddictionaries.com/definition/resistance?q=resistance.) Thus, a victim who simply refuses to comply with appellant’s orders would be in resistance, thus falling within the category of individuals who were subject to the generic threat. Hefurther argues that his “state of mind 15 years earlier” for crimes he had committed in 1979 were too remote and inadmissible. (AOB 230.) Butthe lapse of timeis just one factor to considerin the ultimate inquiry of whetherthe declarant’s “state of mind wastransitory and no longer existed at the time ofthe charged offense.” (People v. Karis, supra, 46 Cal.3d at p. 637.) Appellant made the statements just prior to The Office robbery, indicating a very recent intent to commit a robbery. In any event,if the reference is from the time he committed his past robbery, heremained incarcerated for those crimesuntil he was paroled in 1991. Upon his discharge from parole in 1993, he met Webster and immediately began planning a robbery. Indeed, the other trial evidence of appellant’s immediate purchase of a gun uponhis release and statement to Baker about eliminating witnesses demonstrated the sincerity of his general threat and his “state of mind was[not] transitory and[still] existed at the time of the charged offense.” (People v. Karis, supra, 46 Cal.3d at p. 637; see, e.g., People v. Spector (2011) 194 Cal.App.4th 1335, 1396-1397 [‘“‘As to both statements, Spector complains aboutthe long periodof time, approximately 10 years, betweenthe threats testified to by Tannazzo and 135 Clarkson’s death. . . . But, as the trial court pointed out whenit admitted Tannazzo’s testimony, other evidenceto be presentedat trial would show a decades-long ‘history of acts that indicate ... violence toward women,’ and therefore this threat was part of a ‘continuing pattern.’ We agree this long history tends to demonstrate the sincerity with which Spector uttered these words, andthe fact that his ‘state of mind was [not] transitory and[still] existed at the time of the charged offense.’].) Thus, while there was a lengthy gap in betweenthe time period within which he committed his prior crimes and when he committed The Office robbery and murder, the removal of his period of incarceration considered with his immediate plans to commit a robbery uponhis release from prison was an almost continuous thread of his willingness to eliminate anyone whoresisted during the course of a robbery. Under these circumstances,the trial court acted well within its discretion in determining that the time between appellant’s statements and The Office robbery and murders did not renderhis state ofmind transitory. (Cf. People v. Davis (2009) 46 Cal.4th 539, 602 [upholding admission under Evidence Code section 1101, subdivision (b) ofprior acts: committed 17 years before charged crimes]; People v. Steele (2002) 27 Cal.4th 1230, 1245 [same].) Appellant’s argumentthat his statements were inadmissible because they were irrelevant also fails. (AOB 230-232.) Appellant’s statement was relevant to intent. Only relevant evidence is admissible. (Evid. Code, § 350.) ““Relevant evidence’ means evidence . . . having any tendencyin reason to prove or disprove any disputed fact that is of consequenceto the | determination of the action.” (Evid. Code, § 210.) “The test of relevance is whetherthe evidence tendslogically, naturally, and by reasonable inference to establish material facts such as identity, intent, or motive.” (Peoplev. | Wallace (2008) 44 Cal.4th 1032, 1058.) Further, under the state-of-mind 136 exception to the hearsay rule, “evidence of a statementof the declarant’s then existing state of mind, emotion, or physical sensation (including a statementof intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [{] (1) The evidenceis offered to prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time whenitis itself an issue in the action; or [{] (2) The evidence is offered to prove or explain acts or conduct of the declarant.” (Evid. Code, § 1250.) This case involved the death of two individuals who were killed during the course of a robbery. Appellant stated he would kill anyone who resisted during the course of a robbery. Appellant’s statement explained his particular conductin particular circumstances with a particular type of person, anyone whoresisted during the course of a robbery. Ultimately, appellant’s statementevidencedhis intent and motive on the nightthat Manueland Tudor died from gunshot woundsto the head and tended to. prove that he acted in conformity with this state of mind. Appellant contends that the trial court erred by allowing the introduction ofhis statements because they werenotrelevant to any material fact in dispute. (AOB 230 230-232.) Intent to kill and premeditation were material to this case. Appellant’s not guilty plea put in issue all of the elements of the offenses, including intent. (Peoplev. . Daniels (1991) 52 Cal.3d 815, 857-858.) Criminal intent is seldom proved by direct evidence and often must be inferred from a defendant’s conduct. (People v. Lewis (2001) 25 Cal.4th 610, 643.) Statements by a defendant frequently are relevant to show intent for the charged crime. (Seee.g., People v. Lang (1989) 49 Cal.3d 991, 1013 [first-degree murder defendant’s habit of carrying a gun and statements he would “waste” anyone who interfered with him were relevantto his state of mind]; People v. Rodriguez (1986) 42 Cal.3d 730, 756-757 [in murder prosecution 137 defendant’s threat against victim is relevant to prove intent and a generic threat is admissible to show defendant's homicidal intent where other evidence brings actual victim within scopeof threat].) For these same reasons,the probative value of appellant’s statements were not outweighedbythe risk of prejudice. Appellant argues the statements were cumulative of other evidence ofintent to kill, such as the circumstancessurroundingthe killings themselves and his statements to Baker. (AOB 232-234.) Baker’s credibility, however, was also severely attacked by the defense. She, like Webster, was portrayed as a scorned ex- lover. Thus, appellant’s statements to the robbery investigators and the surrounding circumstancesfurther bolstered the reliability and accuracy of appellant’s similar statement to Baker around the same time. Thus, even if notspecifically admissible as a “generic threat,” this statement was relevant to show the seriousness in which he madethe similar statement to Baker. Because the statements were madecloseto the time of The Office robbery and murders,it “enhancedits probative value, and becauseat the time ofthe ruling the identity of the perpetrator appearedto be the principal issue, the court concludedthat as a statement of motive, plan, and design the probative value of the statement was great. The court therefore concludedthat the highly probative nature of the evidence substantially outweighed the danger of undueprejudice from its admission.” (People v. Karis, supra, 46 Cal.3d at p. 637.) The statements were, therefore, properly admitted into evidence. Consequently, there was no federal constitutional error. C. There was no Prejudice Asset forth above, the prosecution presented overwhelming evidence of appellant’s guilt. (See Arg. I.G, ante.) Thus,it is not reasonably probable that appellant would have received a more favorable result absent the admission ofthe prior act evidence. For the same reasons, any federal 138 constitutional error was harmless beyond a reasonable doubt. (People v. Watson, supra, 46 Cal.2d at p. 835.) V. THE JURY WAS AWARE THAT DETECTIVE REED WAS UNAWARE OF LANGFORD’S STATEMENT THAT HE HAD RETRIEVED THE GUN FROM BAKER’S CAR ON THE NIGHT OF THE MURDER Appellant argues the trial court excluded relevant defense evidence whenit precluded defense counsel from questioning Detective Reed about inconsistent statements made by Webster and Langford regarding who retrieved appellant’s gun from Baker’s car on the night of the murders and whether he was aware of Langford’s version. He is incorrect. _A. Background During his direct testimony on behalf of the defense, Langford testified that appellant had asked Websterto retrieve the gun from Baker’s car on the night of the murders. (20 RT 6702.) He acknowledgedthat he had made a previous statementto the prosecution that appellant asked him to retreive the gun, but explained that he was mistaken and had retrieved the gun on a different occasion. (20 RT6703.) He further acknowledged that he hadalso told the prosecution that he found the box containing the gun onthe floor in front of the backseat and that heat came from the barrel. (20 RT 6704-6705.) _ On cross-examination, the prosecutor asked Langford: You told Reed on June 22nd, 1993 that the defendant brought the gun in the duplex. You told Carli on March 25, 1994 that your sister went out and got the gun and then you told Carli on February 26, 1996 that you, in fact, went out to the car and got the gun. (20 RT 6738.) Langford had no explanation for the variation in his story other than he read over Webster’s notes about the incident and relied on her accounting that she had retrieved the gun on the night of the murders. (20 RT 6738.) 139 Detective Reed was subsequently called as a witness by the defense. Defense counsel questioned him about Langford’s statement regarding the heat emanating from the gun. The following colloquy took place: Q Well, I said, prior to court today, were you ever aware that Mr. Langford had beentelling people that he felt heat emanating from the gun? A Yes. Q Okay. [{] And when did you becomeawareofthat? A At somepoint, I spoke to Mr. Druliner, and he hadtold me that’s what Mr. Langford had said. Q _ Well, at some point. [{] That’s between whatdates;if you can recall? A It would have been after his testimony in court and within the last — probably a day beforeI last testified, whenever that was. Q So it wouldn’t have been during the course of your investigation in this case? A No. It was definitely after he hadtestified. Q Allright. [J] And when,if ever prior to today, were you made aware that Mr. Langford hadstated that he, as opposed to Mary Webster hador, for that matter, Mr. Case himself had — [Prosecutor]: Objection, your Honor. [{]] One, as to relevance and the otheris that it’s a compound question. - The Court: Sustained. Mr. Gable: On both groundsor one ground, your Honor? The Court: Both grounds. Mr. Gable: All right. [§] Well, could I finish the question before we have a ruling on the relevancy? 140 The Court: Well, why don’t youtry it again since i[t] was compoundto begin with? Mr. Gable: That’s a point well-taken. Q. (By Mr. Gable): Okay. [§] Did you ever hear from Mr. Langford, that he was the one that went out and got the gun out of the car? A No. Q. Okay. [§] And, I mean, this would have been important, I assume,in the course of your investigation of this case, is to know whohandledthe gun;is that correct? A Absolutely Q Okay. [{] And were you ever made awareofthis by anyoneprior to court? [Prosecutor] Objection as to the relevance. Mr. Gable: It goes to his investigation and whetheror not it’s a complete investigation of this case, your Honor, as to whether or not he ever had any knowledgethat there’s more than one story about whogot the gun. . The Court: Sustained. [Prosecutor]: Thank you. Q _ (By Mr. Gable): So you never knew that Mr. Langford had made a statement that he had obtained that gun from the car — [Prosecutor]: Objection. | Q -- is that right? [Prosecutor]: Same objection, your Honor. The Court: Sustained. Q (By Mr. Gable): Did you know Mr. Langford also indicated that Mr. Case had changed his clothes at Mary Webster’s house, changed into a newset of clothing there? 141 [Prosecutor]: Same objection, your Honor. The Court: Sustained. Mr. Gable: I'd like to be heard on these, your Honor. The Court: All right. [§] It’s about time for the jury’s first break. (21 RT 6971-6974, emphasis added.) Outside the presence ofthe jury,trial counsel argued as follows: There can be more than onereason for calling a witness, your Honor. Andthe fact of the matter is that we should have an opportunity to call this investigator and find out what he did with regard to the investigation. [{] It’s certainly relevantto the jury in determining whether Mr. Caseis guilty or not whether a complete investigation is made ofthis case. []] If, in fact, the other law enforcementofficials had knowledge of various inconsistenciesin the statements of various key witnesses and failed to inform the investigating officer who hassaid that, by golly, if I’d knownthat, that would have been important to me, that’s certainly relevant for the jury’s consideration, and that’s exactly all we’re asking at this point in time. [{] I don’t see how Mr. Druliner can say that that’s irrelevant to the jury’s consideration of whether or not Mr. Caseis guilty or not. The Court: Well, you’re askingthis particular detective what he considers to be important insofar as the investigation is _ concerned. That’s really irrelevant to what the jury considers important as whatis relevant. This case has to be decided on what was done and whatevidence has been presented. [{] If there are inconsistencies in that evidence or there are gaps in that evidence, then that’s the state of the evidence andthat’s the facts upon which the jury mustrely in reaching their decision. (21 RT 6974-6975.) Trial counsel continued: If I might — I don’t meanto interrupt the Court — but the other thing is, when there’s inconsistencies presented between two witnesses andthe investigator is aware of those inconsistencies,it is fair, certainly, to ask whether the investigator took any steps or what steps were taken, if any, to resolve those inconsistencies. — 142 Andifhe says none,fine, that’s as far as you go. I’m not going to sit there andcriticize him at this point for not doing anything. We’ll save that for argument, where it belongs. [{] But we certainly have the right to lay the foundation that nothing was done,andthat’s all we’re trying to do here. The Court: All right. [{] I think the objection and the Court’s previousruling sustaining the objection is approporiateasit stands, and that closes the issue. (21 RT 6976, emphasis added.) B. The Jury Knew Detective Reed was not Made Aware of Langford’s Statements to Carli until after Langford’s Trial Testimony; Therefore, Appellant was not Precluded from Impeaching His Credibility As with all relevant evidence,the trial court retains broad discretion to admit or exclude evidence offered for impeachment. (Evid.Code, § 352; People v. Hartsch (2010) 49 Cal.4th 472, 497; People v. Brown (2003) 31 Cal.4th 518, 534; People v. Rodriguez, supra, 20 Cal.4th at p. 9.) “A trial court’s exercise of discretion in admitting or excluding evidenceis reviewable for abuse [citation] and will not be disturbed except on a showingthetrial court exercised its discretion in an arbitrary, capricious, or patently absurd mannerthat resulted in a manifest miscarriage ofjustice [citation].” (Rodriguez, at pp. 9-10.) Although the trial court sustained the objections on relevance grounds, the facts defense counsel wishedto elicit had already been established. Thetrial court sustained the prosecutor’s objections to two questions asked by defense counsel which are of relevance here. First, as part of a series of questions involving Langford’s statement about personally retrieving the gun from Baker’s car, defense counsel asked Detective Reed whether he had everdirectly heard from Langford that he retrieved the gunfrom Baker’s car to whichhereplied, “[n]o.” Drawing a relevance objection by the prosecution, defense counsel then asked, “... 143 And were you ever made aware ofthis by anyoneprior to court?” Defense counsel arguedit was relevant as to the adequacyofthe investigation and whether Detective Reed was aware that there were multiple stories as to whoretrieved the gun from the car, and the trail court sustained the objection. Defense counsel attempted again by asking, “So you never knew that Mr. Langford had made a statementthat he had obtained that gun from the car -.” The prosecutor made the same objection, which wasalso sustained bythe trial court. (21 RT 6973.) These questions, therefore, had been “asked and answered”and were objectionable on those grounds. (See People v. Vera (1997) 15 Cal.4th 269, 272 [correct decision but wrong reason upheld]; People v. Zapien (1993) 4 Cal.4th 929, 976 [a ruling or decision correct in the law based on wrong reason upheld if supported by any applicable legal theory].) Ina preceding line of questions, defense counselelicited from Detective Reed that Langford had nevertold him that he retrieved the gun from the car and that it would have been important for him to have knownthis fact during his investigation of the case. (21 RT 6973.) In other words, Detective Reed was completely unaware ofthis version at the time ofhis investigation. These facts were in the record, and defense counsel could have “argued his characterization oftheir investigation to the jury ....” (AOB 243.) Because appellant’s premise is incorrect, his argumentis groundless. Second, defense counsel asked, “[d]id you know that Mr. Langford also indicated that Mr. Case had changedhis clothes at Mary Webster’s house, changedinto a newset of clothing there?” (21 RT 6973-6974.) The prosecutor again madethe same objection, which was also sustained by the trial court. Outside the presense of the jury, defense counsel argued that whether a complete investigation was completed or not was relevant for the juror’s consideration of appellant’s guilt. (21 RT 6974.) 144 Similarly, the fact that appellant had changedhis clothes at Webster’s homehad already been established by Webster’s testimony. (14 RT 5015- 5016.) Thus, with the exception that Langfordbelieved appellant changed into tennis shoes while Webstertestified that appellant wore only socks,the fact that appellant had changedhis clothing was consistentin their statements. (20 RT 6700-6701.) Thus, to the extent defense counsel wished to challenge the adequacy of the investigation based on the fact that Webster wasin possession of appellant’s clothing and question the origin of the bloodstain, it had the available facts to do so. Consequently, appellant was not deprived of his state and federal constitutional rights to present a defense anda fairtrial. The claim is meritless. VI. THE PROSECUTION PROPERLY INTRODUCED APPELLANT’S INTERROGATION STATEMENTSDURINGITS CASE IN REBUTTAL Next, appellant arguesthat the trial court abusedits discretion whenit permitted the prosecution to introduce his interrogation statements during rebuttal. He argues his statements didnot “actually rebut any evidence presented by the defense” and wasinstead nefariously introduced by the prosecutor for sandbagging purposes. (AOB 252-270.) Appellant’s argument misses the mark. The record is devoid of any such conductby - the prosecutor, and as will be set in more detail below, appellant’s statements were introduced as proper rebuttal to the evidence presented as part of appellant’s case-in-chief. His argumentis unavailing. A. Background Pricr to calling Detective Stan Reed as a rebuttal witness, the prosecution sought to introduce the following portions, inter alia, of appellant’s interrogation: 145 1. Appellant’s statement that he had seen coverage of the killings on the news During the prosecution’s case in chief, Nivenstestified that appellant had arrived at Webster’s duplex at approximately 11:00 a.m. and watched the news, which he typically did not do. (17 RT 5979-5980.) During the defense’s case-in-chief, defense Investigator Ganetestified that, on July 21, 1993, there were nolistings for local news between the hours of 9:00 a.m. and 12:00 p.m. (20 RT 6825-6826.) In rebuttal, the prosecution soughtto offer the following statement made by appellant: Reed: ... Ah, we’re investigating a homicide that occurred out on Jackson Highway and Bradshaw Road. Occurredlast night. You may have seenit on the news. Case: Yeah. (Augmented CT of 11/10/09 Appendix A,p. 1.) In addition, the prosecutor sought to introduce the following in rebuttal: Reed... as you knowthat the homicide happenedat the Office bar. : Case: I seen it on TV this morning. (Augmented CT of 11/10/09 Appendix A,p. 4.) Following defense counsel’s objection that the statement was improperrebuttal, the trial court ruled as follows: And with regardto the first offer of rebuttal evidence on behalf of the Prosecution relating to the fact that the defendant- was watching the news, the Court finds that these assertions in the defense case were not implicit in his denial of guilt, and, therefore, this is proper rebuttal and the Court will allow this section to be used. (21 RT 7217.) Thetrial court later added: [The court]: Notto revisit the last ruling, but, for example, the Defense put on evidence that nobody could have been watching the newsat the time that this witness said they were watching the news. 146 _ [Defense counsel]: Correct. The Court: Andthe evidence that rebuts that is your client’s statement that he was watching the news. {Defense counsel]: Andthe fair inference being it could have | beenat that time, I guess. The Court: Right. (21 RT 7226.) 2. Appellant’s Statement that he was at the Office on the night of the Robbery/Murders During the prosecution’s case in chief, Grimestestified that appellant wasat the Office on June 20, 1993, when hearrived at approximately 8:30 p.m. (11 RT 4166-4167, 4171.) He further testified that appellant wore blue jeans, cowboy boots, and a sport shirt. (11 RT 4176, 4178.) During cross-examination, trial counsel immediately questioned Grimes about the accuracy of what time he had arrived at The Office and about The Office’s lighting conditions near the pool tables. (11 RT 4186-4193.) Defense counsel further attacked Grimes by asking him whatappellant wore that night and pointed outthe inconsistenciesin his descriptionat trial versus what he providedto sheriffs deputies during the investigation. (11 RT 4200-4201.) The defense,as part of its case in chief, called Investigator Gane and Detective Reedto testify about Grimes’ inconsistent description of what appellant wore that night. Investigator Ganetestified that Grimes hadtold him that appellant wore a pale Levi material shirt. (20 RT 6895-6896.) Detective Reedtestified that Grimes had told him that appellant wore gray cowboy boots and jeans, but did not provide a description of the shirt. (20 RT 6919-6920.) Aspart ofits rebuttal, the prosecution wished to offer appellant’s statements that he was at The Office with Burlingame, took her home 147 between 6:00 p.m. and 7:00 p.m., that he had returned to The Office between 7:30 p.m. and 8:00 p.m. to shoot some pool, andleft at approximately 8:55 p.m. (Augmented CT of 11/10/09 Appendix A,pp. 4- 5, 8-9.) Following a defense objection and arguments, thetrial court ruled as follows: Well, let’s just saythat it seems like a logical argumentto make. [] Sure, they chose to make it. And should they choose to makeit, it would be supported by the evidence that they introduced during their cross-examination and during their case in chief. Because the value or the weight of that identification, the validity of that identification has certainly been challenged implicitly. [§] And I believe that this evidence does go to rebut the assertion that Tracy Grimesis identifying Mr. Case for some other reason than the fact that he actually saw him there,so it will be admitted. (21 RT 7232.) Defense counsel asked the trial court whetherthe Burlingameevidence was admissible, and thetrial court ruled as follows: Burlingame comesin but not on the bootstrap. The Court will exercise its discretion under the Evidence Code and the Penal Code as provided for in Bunyard, Muniz and Carter and allows that because it does tend to give more meaningto the testimony of Grimes. (21 RT 7232.) 3. Appellant’s Statement that He was Driving Baker’s Ford Probe on the Night ofthe Robbery/Murders During the prosecution’s case in chief, Dickensontestified that just ‘before she heardshots being fired, she was outside and recognizedall but onecarin the parking lot and described it as a small compact. (11 RT 4240-4245.) She was unable to positively identify Baker’s car, but testified that it looked similar to the one she saw in the parking lot. (11 RT 4244- 4245.) 148 On cross-examination, Dickenson provided more details about the unfamiliar car. She was unable to note any details because it was parked next to a Camero, which was“set up a little higher than that vehicle.” She stated that the color was “silverish, bluish, light color.” (12 RT 4268.) She explained that she was able to see the front end, the top of the hood, and windshield and again described it as a compactcar similar to a two-door Honda or Hyundai. (12 RT 4269-4270.) During the defense’s case in chief, Investigator Ganetestified that Baker’s Ford Probe was 175 inches in length, while a 1977 Camero was 195 inches in length. (20 RT 6822-6825.) The defense also called Deputy Sawyer who interviewed Dickenson andtestified that Dickenson did not affirmatively indicate that she did not notice any of the vehicles. (21 RT 7137-7138, 7140-7141.) In rebuttal, the prosecution sought to introduce appellant’s statements as follows: Reed: And obviously you must have beenin acar. Where were you parkedat? Case: Ah, right in front of that — I guessit’s a housetrailer there next to the bar. Reed: Oh, there’s a— Case: Parkinglot. Reed: -- white Camaro over there? Case: Yeah. Reed: You were parked on the other side of the white Camaro? Case: (Inaudible). Reed: What kind of car were you in? Case: Ah, Jerry’s gray Ford Probe. 149 (Augmented CT of 11/10/09 Appendix A,pp. 4-5, 8-9.) The following colloquy occurred: [Prosecutor]: The defense’s last witness, in fact, was one of the attacks on Dickinson’sability or testimony concerningthecar, scene of the car andits location. [{] The other witness was Tony Gane who,I believe, interviewed Anita Dickenson hesaid three times. The Court: And she said that the car that she saw washalf the size of a Camaro. [Prosecutor]: Right. The Court: But the statement offered here is that the defendant wasthere in Jerri’s gray Ford Probe. [Prosecutor]: Yes. The Court: All right. [{] Well, that would seem to directly rebut that. [{] That testimony would be allowed. (21 RT 7232-7233.) 4. Appellant’s Statement Regarding the Clothes and the Blood on the Clothes Onrebuttal, the prosecution sought to introduce the following statements made by appellant: Reed: |Howcan weexplain the clothing that Mary got from you? Case: I guess you’!I haveto talk to Mary aboutthat. Reed: You have no idea what she’s talking about? Case: No. Reed: Clothing, and a pair ofboots with the blood on ‘em? Is that blood going to match the people overthere in the Office bar? Case: I have noidea. 150 (Augmented CT of 11/10/09 Appendix A, p. 11.) He also sought to introduce the following: Case: Well, the clothes are mine. I got the blood on ‘em from shaving. And the people were alive when left the bar. Reed: The blood on the clothes,if it’s blood, you gotif from shaving? Case: (Unintelligible). Reed: Okay. Well — Edwards: (Unintelligible) shaving, Casey, but I don’t see any marks on you from shaving. Case: Well. Edwards: Whowere you shaving? I don’t see any marks on you from shaving. Case: Heatfast. Edwards: Okay Reed: You heal real quick, huh? Okay. Any questions, Darryl? (Augmented CT of 11/10/09 Appendix A,pp. 18-19.) The prosecutor intendedto offer this evidence to rebut the blood testimony from defense expert Peter Barnett and the defense claim that the blood was planted by someone else. (21 RT 7243, 7246-7247.) The following collequy occurred: [Prosecutor]: And one of the ways which wasconstantly — | not constantly — but was set up by Counsel’s questions with Peter Barnett as to the possibilities was that it was planted on the shirt. [Defense Counsel]: And I don’t know how this particular facetious response because we knowit isn’t Mr. Cases’s blood that’s on that shirt sheds any light onhow the blood got on the shirt. 151 The Court: I’m intrigued by the planted on the shirt possibility which wasraised in the defense case. [{] So, then, the question is does this rebut that? [{] Because obviously,it’s not offered for the truth of the matter asserted. I don’t mean that in a hearsay sense. [Defense Counsel]: No. [Prosecutor]: Exactly. [Defense Counsel]: No. The Court: But it’s not offered for the truth of the matter asserted, becauseif one had knicked oneself shaving to the extent that they would let that much blood on the shirt — {Defense Counsel]: Does that diminish from the assertion there’s blood planted? [§] I don’t even see where it even . remotely touches on that issue. - The Court: Well, it’s certainly not a denial or a statement. I have no idea. [Defense Counsel]: Well, you already said that earlier. The Court: It’s an inconsistent explanation,really. [Defense Counsel]: Well, it’s a—[{] Well, it’s definitely that, to put it mildly. [J] But is that proper rebuttal? [{] Ifthe defendant had got onthe stand andtestified as to how the blood goton the shirt and it was inconsistent from whathesaid in his statement, then certainly that would be rebuttal evidence. (21 RT 7247-7248.) Thetrial court noted: Well, whatit is the Prosecution there contends and has contendedthat the blood on the shirt came from the victims and that the shirt was on Mr. Case whenheshot them to death. [{] The Defense has seemedto indicate in its case in chief through Mr. Barnett that another possible source of the blood would be someonedipping the shirt in the blood or the boots in the blood. (21 RT 7248.) The court concluded, “And,so, that’s the evidence thatthis _ wouldhaveto rebut.” Defense counsel agreed. (21 RT 7248.) Defense counsel added,“the only issue is whether he was wearing them [the 152 clothes] on the night in question.” The Court replied, “[a]nd this would tend to rebut that, because if he was wearing them onthe night in question, they could not have been smeared throughthe victims’ blood by someone perpetrating a frame-up.” (21 RT 7249.) The court concludedthe evidence was admissible for the above-stated purposes. (21 RT 7250.) B. Appellant’s Statements were Properly Introduced as Rebuttal Testimony The People’s rebuttal evidence mustrelate to the subject matter of evidence offered by the defense. (People v. Lancaster (2007) 41 Cal.4th 50, 98.) {P]roper rebuttal evidence does not include a material part of the case in the prosecution’s possession that tends to establish the defendant’s commission of the crime. It is restricted to evidence made necessary by the defendant’s case in the sense that he has introduced new evidence or madeassertions that were not implicit in his denial of guilt. (People v. Young (2005) 34 Cal.4th 1149, 1199; see Pen. Code, § 1093, subd. (d).) Testimonythat reiterates or reinforces a part of the prosecution’s case that has been impeachedby the defense properly may be admitted in rebuttal. (Young,at p. 1199.) “The order of proofrests largely in the sound discretion of the trial court, and the fact that the evidence in question might have tended to support the prosecution’s case-in-chief does not make it improperrebuttal.” (People v. Coffman (2004) 34 Cal.4th 1, 68, citing People v. Mosher(1969) 1 Cal.3d 379, 399, disapproved on another ground in People v. Ray (1975) 14 Cal.3d 20, 29-30; Evid. Code, § 320; Pen. Code, §§ 1093, subd. (d), 1094.) | It is improper for the prosecution to deliberately withhold evidence that is appropriately part of its case-in-chief, in orderto offer it after the defense rests its case and thus perhaps surprise the defense or unduly magnify the importance of the evidence. Nevertheless, when the evidence in question meets the 153 requirements for impeachmentit may be admitted on rebuttal to meetthe evidence on a point the defense has putinto dispute. (Coffman,at p. 68, citing People v. Harrison (1963) 59 Cal.2d 622, 629.) The admission of rebuttal evidence is reviewed for an abuse ofdiscretion. (People v. Harris (2005) 37 Cal.4th 310, 335; People v. Young (2005) 34 Cal.4th 1149, 1199.) ’ First, appellant’s statement that he had watchedtelevision news coverage of The Office murders rebutted Investigator Gane’s testimony that there were nolistings for local news between the hours of 9:00 a.m. and 12:00 p.m. on July 21, 1993. (20 RT 6825-6826.) Appellant argues his statement that he had watched the morning newsdid not rebut Investigator Ganestestimony because his admission to having watched the morning newscould have also covered the period between 12:01 a.m. and 11:59 a.m. (AOB 257-258.) Heis splitting hairs. When appellant was interviewed on the afternoon of July 21, 1993, his reference to have “seenit on TV this morning” appears to have referred to the morning newsas commonly understood by the television viewing public. (Augmented CT of 11/10/09 Appendix A, p. 4.) When he recounted that evening’s events, he did not include down time watching television. Rather, he explained that — got homejust before midnight, had a discussion with Baker, and woke up the following morning with “a hell of a hangover.” (Aug. CT of11/10/09 Appendix A at p. 10.) Second, appellant’s statementthat he was at The Office on the night of the murders until 8:55 p.m. rebutted the defense evidence attacking the _testimony of Grimes regarding what appellant wore the nightofthe murders and inference that Grimes fabricated appellant’s presence at The Office due to bias. Appellant argues that he did not challenge his presence at The Office with Grimes, butrather challenged Grimes’ description of appellant’s clothing to the extent it was consistent with the defense theory 154 that the blood had been planted on the clothes and boots in evidence. (AOB 2610-261.) Even assumingthisis true, the defense tactic, as found by the trial court, could reasonably have been understood bythe juror’s as one accusing Grimesof lying about appellant’s presence at The Officeat closing time. Appellant further argues that it was in fact the prosecution who elicited from Grimesthat he “and his friends would see that justice was done,” yet in the same breath, acknowledges “defense counselelicited from the defense investigator that Grimes showed some animosity toward appellant.” (AOB 261.) As stated above, the jury could have understood this as defense evidence of Grimes’ bias and intentional misidentification of appellant at The Office on the night of the murders as found bythetrial court. Healso argues that his statement was a material part of the prosecution’s case in chiefin that it established his commissionofthe crime. (AOB 262.) Notso. The prosecution had put on sufficient evidence of appellant’s presence at The Office through Grimes’ testimony, as well as the testimony from Burlingame and Dickenson. Grimes’ testimony, however, was impeachedbythe defense causing the prosecution to rebut the defense evidence with appellant’s statement. “[T]he fact that the evidence in question might have tended to support the prosecution’s case-in-chief does not makeit improperrebuttal.” (People v. Coffman, supra, 34 Cal.4th at p. 68.) Indeed, testimonythat reiterates or reinforces a part of the prosecution’s case that has been impeachedbythe defense properly maybe admitted in rebuttal. (People v. Young, supra, 34 Cal.4th at p. 1199.) . Third, appellant argues that his statement that he had driven Baker’s car on the evening of the murders wasnotproper rebuttal evidence because it was not inconsistent with evidence he presented to attack Dickenson’s 155 credibility. (AOB 263-266.) Appellant is again mistaken. During her direct testimony, Dickensontestified that she recognized all but one car in the parking lot and that Baker’s car looked similar to the one she saw although she could not positively identify it. (11 RT 4240-4245.) During the defense’s case in chief, Investigator Ganestestified that Baker’s Ford Probewas 175 inchesin length, while a 1977 Camero was 195 inches in length. (20 RT 6822-6825.) The defense also called Deputy Sawyer whointerviewed Dickenson andtestified that Dickenson did not affirmatively indicate that she did not notice any of the vehicles. (21 RT 7137-7138, 7140-7141.) This evidence was designed to attack Dickenson’s description of the unfamiliar car in the parking lot. Appellant acknowledgesthat “Sawyer’s testimony tended to undermine Dickenson’s credibility regarding when she saw the unfamiliar vehicle that she described _in her testimony ....” (AOB 265.) This is precisely why it was necessary for the prosecution to put on appellant’s statementin rebuttal. Consequently, appellant’s statement properly rebutted the defense evidence attacking the presence of Baker’s car at The Office onthe night of the murders. Lastly, appellant argues his explanation for how the blood got onto the shirt and boots, i.e., shaving, did not rebut the defense expert’s testimony that the blood was planted on the shirt and boots. (AOB 266- 270.) Appellant’s explanation that the blood on his shirt and boots were caused by a shavingincident indicatedthat he wore the shirt and boots on the day of the murders. To be sure, his entire statement was as follows: “Well, the clothes are mine. I got the blood on ‘em from shaving. Andthe people were alive whenI left the bar.” (Augmented CT of 11/10/09 Appendix A, p. 18.) Defense counsel acknowledgedthat in issue was whether appellant wore the clothing on the night of the murders, and the trial court properly found,“[a]nd this would tend to rebut that, because if he 156 was wearing them on the night in question, they could not have been smeared through the victims’ blood by someoneperpetrating a frame-up.” (21 RT 7249.) Appellant’s claim that the presentation of his “statementin rebuttal vastly magnified its dramatic effect” is fruitless. Again, testimony that reiterates or reinforces a part of the prosecution’s case that has been impeachedbythe defense properly may be admitted in rebuttal. (People v. Young, supra, 34 Cal.4th at p. 1 199.) The prosecution had already put into evidence Baker’s and Webster’s testimony that appellant wore the blood- stained clothing on the night of the murders. The defense, however, presented evidence suggesting that the blood wasplanted on the clothing, causing the prosecutionto present appellant’s statement in rebuttal. Thus, the trial court properly admitted appellant’s statements as rebuttal evidence. Error, if any, was not prejudicial for the reasons set forth inArgument I.G, above. This claim is meritless. VII. THE TRIAL COURT PROPERLY EXERCISED ITS DISCRETION WHENIT LIMITED DEFENSE COUNSEL TO ASKING PROSPECTIVE JURORS WHETHER THEY WOULD CONSIDER APPELLANT’S BACKGROUND AND EXTENUATING CIRCUMSTANCESINMITIGATION Appellant arguesthat the trial court’s ruling prohibiting trial counsel from inquiring into a juror’s ability to consider specific mitigating factors, such as poverty or abuseviolated his state and federal constitutional rights to trial by an impartial jury. (AOB 271-295.) Respondent disagrees. In requiring defense counsel to reference mitigating factors such as “poverty” and “abuse” byinstead using the terms “background”and “extenuating | circumstances,”the trial court properly exercised its discretion and prevented the jurors from prejudging the case. A. Background During the voir dire of prospective juror Payne, defense counsel asked her if she would be able to carefully consider factors in mitigation such as 157 the defendant’s background during the penalty phase of the trial. The prosecutor objected and askedthat the juror not be asked to inappropriately prejudge the evidence. (6 RT 2543.) Defense counsel argued as follows: [Defense Counsel]: I’m not asking her to assign or make any decision. I’m just simply asking her if she could meaningfuly considercertain factors in mitigation. The Court: Well, in the abstract, that’s permissible; but we give her specific facts in mitigation and ask herif she could meaningfully consider those. And that’s in effect asking herto prejudge evidence, andalso it’s incomplete as to what evidence about those factors is going to be. And it’s impermissibleto try the case here at this point. [Defense Counsel]: I’m giving her a hypotheticalsituation,if such factor of a person’s background; if she would consider somethinglike that. The Court: Well, again, if you throw in the factor of a person’s background, for example, one particular thing and ask if they would consider that, then -- ... [{] -- With the instructions and what type of— the general type of evidence can be considered rather than specific type of evidence; and ask the juror if her mind wouldn’t be completely closed to that type of evidence,or if that type of evidence would be something that she could consider. (6 RT 2543-2544.) | The argument continued outside of the presence of prospective juror Payne: [Prosecutor]: Your Honor, mypointis that the instructions do stand for themselves. I think it’s unfair to ask a juror to prejudge specific forms of evidence. The questions that havebeen askedin the past, and I didn’t object to them, but they are, they ask the prosective juror to prejudge specific forms of evidence. And they are also,in their form, vague, compound,and confusing. The questions contain words such as meaningfully consider. What do we meanbythat? Obviously they will 158 consider and they will be open minded enoughto consider the types of evidence that are otherwise described in the instructions. But both Counsellike to go into greater depth. AndI think that is — I know that’s improper. [Defense counsel]: Your honor, I think that the proofin the puddingis the tasting. And I think the Court has been able to observethis careful probing of the jury which revealed biases that would never ever have been discovered hadit not been for asking them if they could meaningfully consider. Whenyou ask someoneif they could listen to the evidence; well, they haveto listen to the evidence. The only way they are not goingto listen to the evidenceisifthey physically stick their fingers in their ears. Will they take that in and give weightto it and considerit, that’s what the law requires. I don’t think we’re asking them to prejudgethis in any way. We’re not asking how much weight are you going to give the defendant’s background. We’re asking them can you considerit in a meaningful[] manner, will it mean anything to you. And I don’t see how that is an improper question to ask. Frankly, I’ve asked that question in every voir dire that I’ve ever donein a capital caseand never had an objection for asking the question. I find it quite startling that Mr. Druliner half way through the voir dire process in this case now suddenly comesto the conclusion that that is an improperarea to gointo. (6 RT 2545-2546.) Thetrial court replied as follows: The Court:I have to disagree that it revealed hidden biases. The manner in which those questions have been phrased,I think, creates situations in which the answeris almost predetermined. You ask jurors to weigh a multiple murder committed during the commission of a robbery against the mitigating factor that the defendant was impoverishedas a child 159 Whenasked to compare just those two things without any further evidence of what impoverished means, and perhaps how it might have led him to do whathe did, or why,at least, why the penalty should be something less than the death penalty; but youare not allowed to do that in as great detail in voir dire as youare at the penalty determination phase. So, what happensis you present the jurors with just two things which most jurors would and havesaid that: Well, if you have multiple murder during the commission of a robbery andit was committed by somebody whowaspoor,then I think that’s probably going to be a death penalty for him. I’m notsure that reveals bias. I think that’s a problematical responseto that type of question. (6 RT 2546-2547.) After further argument, the court further stated: Wecangetto that with permissible questions. I think we get skewed results when weask the question and throw in specific factors and ask them to engage in a weighing process right here and now with nothing more than specific factors. (6 RT 2549.) It then concluded: All right. The Court will permit questions along the lines of the Instruction CALJIC 8.88, third paragraph. I think the -jurors need to be educatedto the fact that mitigating circumstancesis any fact, condition, or event. Obviously, we don’t have to use this language becauseit’s a bit cumbersome. _ Anyfact, condition or event which as such does not constitute justification or excuse for the crime, but may be considered as an extenuating circumstance in determining the appropriateness of the death penalty. I think that puts it in the proper light and that’s why they should considerit. It’s not a justification,it’s not an excuse,it may be an extenuating circumstance which extends beyond the offense and also encompassing the character orthe background ofthe defendant, and allowsthe jurors to choose the appropriate penalty, considering both of those things, and whatever evidence is submitted on that subject. (6 RT 2550-2551.) The matter was further discussed by the parties. (6 RT 2551-2559.) At the conclusion, defense counsel asked, “ ... I cannot ask 160 questionsthat: will you be able to carefully consider such things as a person growing up in poverty, I can’t get that specific.” The court clarified as follows: Right. Because I think that has a tendencyto be misleading. It also, I think, asks them to prejudge the fact: Does poverty outweigh or could it possibly outweigh mulitple murder and murder committed during the course of robbery. The question is: Can they carefully consider evidence in mitigation; or if you’ve already found as Mr. Gable points out, coming into the penalty determination phase you havealready found Mr. Case guilty of a couple counts of murder and one or two special circumstances,let’s say two counts of murder and both special circumstances, does that mean that the issue to be determined in the penalty phase has already determined in your mind, or can you carefully consider the evidence that we’re going to present in reaching that decision. Because if they can’t do that, if their mind is closed because of the enormity of the offense, then they shouldn’t be on the jury. They haveto be able to listen to what you present and - whether they give it any weight or not is what they’re going to be doing, and they should do so carefully. I don’t thinkwe should go into specifics on poverty or abuse evidence. Evidently, you can go into victim impact evidence, that can be very, very powerful, and you have asked before how they might considerthat, and that’s appropriate. (6 RT 2559-2560.) B. The Trial Court, during Voir Dire, Properly Limited the Defense to Question Potential Jurors Generally about Mitigating Circumstances Rather than the Specific Factors of Poverty and Abuse Which Would Have Been Misleading and Caused Them to Prejudge the Penalty Issue This Court has summarized the law governing therestriction of voir dire as follows: 161 [T]he trial court has considerable discretion ... to contain voir dire within reasonable limits[.] This discretion extends to the process of death-qualification voir dire established by Witherspoonv. Illinois (1968) 391 U.S. 510 [88 S.Ct. 1770, 20 L.Ed.2d 776], and Wainwright v. Witt {(1985)] 469 U.S. 412 [105 S.Ct. 844, 83 L.Ed.2d 841]. Limitations on voir dire are subject to review for abuse ofdiscretion. (People v. Butler (2009) 46 Cal.4th 847, 859.) Moreover, as we have said onmanyoccasions,[dJefendant ha[s] no right to ask specific questions that invite[ ] prospective jurors to prejudge the penalty issue based on a summaryofthe aggravating and mitigating evidence (People v. Cash (2002) 28 Cal.4th 703, 721-722 [122 Cal.Rptr.2d 545, 50 P.3d 332}),to educate the jury as to the facts of the case (People v. Sanders (1995) 11 Cal.4th 475, 538-539 [46 Cal.Rptr.2d 751, 905 P.2d 420]), or to instruct the jury in matters of law (People v. Ashmus (1991) 54 Cal.3d 932, 959 [2 Cal.Rptr.2d 112, 820 P.2d 214]).’ (People v. Burgener (2003) 29 Cal.4th 833, 865 [129 Cal.Rptr.2d 747, 62 P.3d 1]; see also, e.g., People v. Mason (1991) 52 Cal.3d 909, 939-941 [277 Cal.Rptr. 166, 802 P.2d 950] (Mason).) Wehave explainedthat ‘[t]he Witherspoon—Witt... voir dire seeks to determine only the views of the prospective jurors about capital punishmentin the abstract.... The inquiry is directed to whether, without knowing the specifics ofthe case, the juror has an “open mind”on the penalty determination.’ (People v. Clark (1990) 50 Cal.3d 583, 597 [268 Cal.Rptr. 399, 789 P.2d 127]....) . (Ibid.) On the other hand, we have indicated that because[a] prospective juror who would invariably vote either for or against the death penalty because of one or more circumstanceslikely to be presentin the case being tried, without regard to the strength - of aggravating and mitigating circumstances,is ... subject to challenge for cause, the death qualification process must probe prospectivejurors’ death penalty viewsas applied to the general facts of the case, whether or not those facts [have] been expressly charged. (People v. Earp (1999) 20 Cal.4th 826, 853 [85 Cal.Rptr.2d 857, 978 P.2d 15]....) 162 Reconciling these competing principles dictates that death- qualification voir dire must avoid two extremes. On the one hand, it must not be so abstractthatit fails to identify those jurors whose death penalty views would preventor substantially impair the performance oftheir duties in the case beingtried. On the other hand,it must not be so specific that it requires the prospective jurors to prejudge the penalty issue based on a summaryof the mitigating and aggravating evidencelikely to be presented. [Citation.] In deciding whereto strike the balance in a particularcase,trial courts have considerable discretion. [Citations.] (People v. Cash, supra, 28 Cal.4th 703, 721-722 [122 Cal.Rptr.2d 545, 50 P.3d 332].) (People v. Zambrano, supra, 41 Cal.4th at pp. 1120-1121, 63 Cal.Rptr.3d 297, 163 P.3d 4; see also People v. Carasi (2008) 44 Cal.4th 1263, 1285- 1287, 82 Cal.Rptr.3d 265, 190 P.3d 616.) (d., at p. 860.) Here,the trial court properly exercised its discretion during the death- qualification voir dire and struck the right balance between questions too abstract in nature and those which are so specific as to cause a potential juror to prejudge the case. Appellant argues that the trial court’s order “restricting inquiry into questions about his ‘background’or ‘extenuating circumstances’ and prohibiting mention ofspecific mitigating factors severely limited defense counsel’s ability to ferret out prospective jurors whoseability to follow the law on mitigation was substantially impaired.” (AOB 282.) He argues too much. Asthis Court stated in Butler, “‘[t]he Witherspoon—Witt ... voir dire seeks to determine only the views of the prospective jurors about capital punishmentin the abstract... The inquiry is directed to whether, without knowing the specifics of the case, the juror has an ‘open mind’ on the penalty determination.” (People v. Butler, supra, 46 Cal.4th at p. 859.) Thus, in its attempt to strike the balance,the trial court correctly found that by asking the potential jurors about poverty and abuse without moredid not “tell the jurors much of anything.” (6 RT 2555.) Indeed, this was 163 misleading as it asked the potential jurors to determine whether poverty and abuse in general, without knowing anything else about these circumstances, could mitigate against a penalty of death for a double murder and robbery. Without knowing anything else about those mitigating circumstances, the jurors were essentially asked to prejudge the case by weighing poverty and abuse,in the abstract, against a double murder and robbery. (6 RT 2543- 2544.) As found bythetrial court, this would result in “skewed”results. (6 RT 2549.) While factors such as poverty and abuseare mitigating factors for a juror’s consideration (§ 190.3, subd. (k)), merely listing the factors without providing any additional details is tantamount to asking the jurors whether they would consider appellant’s “background”and “extenuating circumstances” in mitigation which is what was doneinthis case. Appellant arguesthat such a limited inquiry wouldlead prospective jurors “who wishes to seem fair-minded” ‘to parrot a response that they think is socially acceptable.” (AOB 284-285.) It appears, however, equally likely that a juror who wished to seem fair-minded wouldanswer questions identifying a specific mitigating circumstancein a similar fashion and would morelikely be prone to do so as not to appear biased against factors such as poverty and abuse. Appellant relies on the voir dire of prospective juror Warrento illustrate the allegedeffectiveness of a more fact-specific voir dire regarding mitigating circumstances; however, prospective juror Warrten’s responsesessentially indicated that he was “absolutely closed”to all mitigating evidence. (5 RT 2433, 2437.) In support of his claim that inquiring about specific mitigating factors such as poverty and abuse wasjust as properas inquiring about victim impactevidence, appellantrelies on People v. Noguera and People v. Cash. (AOB 287-291.) These cases are inapposite. In Noguera,thetrial court permitted the prosecutor to ask the prospective jurors whether the fact that a 164 capital defendant was “18 or 19 at the time ofthe killing ... [would] automatically cause you to vote for the lesser punishmentoflife imprisonment without possibility of parole?” (People v. Noguera (1992) 4 Cal.4th 599, 645.) The prosecutor wasalso permitted to ask each juror whether “you would be able to consider imposing the death penalty... if we have one victim as opposedto requiring that the defendantkill two or more people?” (/bid.) On appeal, the defendant argued these questions “had the impermissible effect of inducing the jurors to ‘prejudge’ the evidence to be offered against him attrial.” (/bid.) The Noguera Court disagreed, finding “that the prosecutor’s questions were entirely proper because they were directly relevant to whether a juror would be subject to a challenge for cause.” ([bid.) . This case is distinguishable because, unlike Noguera, defense counsel’s questions were too abstract and potentially misleading. (People v. Butler, supra, 46 Cal.4th at p. 860.) Althoughappellant wished to ask the prospective jurors aboutspecific factors such as poverty and abuse,his questions were too general in the sense that there were no accompanying facts to give these factors any meaning. Asstated above,the trial court correctly noted that “we get skewed results when weask the question and throw in specific factors and ask them to engagein a weighing processright here and now with nothing more than specific factors.” (6 RT 2549.) Likewise in Cash, the defendant claimedthetrial court erroneously refused to allow defense counsel to ask prospective jurors whether they would automatically vote for death if the defendant had previously committed another murder. (People v. Cash (2002) 28 Cal.4th 703, 719.) During jury selection, the court had imposeda blanketrule restricting voir dire solely to the facts appearing on the face of the charging document. (Ibid.) The Cash Court reversedthe death sentence as follows: 165 The restriction on questioning was impermissible for two reasons. First, a trial court cannot absolutely bar mention of any fact or circumstance solely becauseit is not expressly pleaded in the charging document. Second, and relevant to the evidence in that particular case, a prior murder was “a general fact or circumstancethat ... could cause somejurors invariably to vote for the death penalty, regardless of the strength of the mitigating circumstances....” (People v. Solomon (2010) 49 Cal.4th 792, 840, internal citations omitted.) Asexplained in moredetail above, neither of these reasons apply in the instant case. First, the trial court did not apply a blanketrule restricting any mention of mitigating circumstances during voir dire. Rather,it allowed the defense to question the prospective jurors in a mannerthat would not cause them to prejudge the case, yet determine whether they would consider factors such as appellant’s background and other extenuating circumstances in mitigation. Second, the challenged factors involved mitigating circumstances and not a general fact or circumstance that would causejurors to vote for the death penalty. These cases do not support appellant’s contention. | Thus,the trial court’s approach to determine whether the prospective jurors generally would consider appellant’s background and extenuating circumstances was consistent with “determin[ing] only the viewsofthe prospective jurors about capital punishmentin the abstract.... The inquiry is directed to whether, without knowing the specifics of the case, the juror has an ‘open mind’ on the penalty determination.” (People v. Butler, supra, 46 Cal.4th at p. 859, citing People v. Clark, supra, 50 Cal.3d at p. 597.) Contrary to appellant’s claim, the trial court did not impermissibly restrict voir dire. Consequently, for these same reasons, there was no federal constitutionalerror. 166 C. Error,if any, did not Prejudice Appellant Assuming, for the sakeof argument,that the trial court improperly restricted voir dire, appellant is not due the reversal of the penalty judgment he requests. (AOB 292-295.) In People v. Cash, supra, this Court stated that errors in restricting death-qualification voir dire do not invariably require reversal of a judgmentof death. (People v. Cash, supra, 38 Cal.4th at p. 722; citing People v. Cunningham (2001) 25 Cal.4th 926, 974.) “In particular, we have suggested that such error may be deemed harmlessif the defense was permitted ‘to use the general voir dire to explore further the prospective jurors’ responsesto the facts and circumstancesofthe case’ or if the record otherwise establishes that none of the jurors had a view of about the circumstances of the case that would disqualify that juror.” (Ibid.) Although general voir dire was not used to explore further the issue of mitigating circumstances, appellant was afforded the opportunity to ask each prospective juror whether they would consider appellant’s background,character or extenuating circumstances. (6 RT 2578, 2668; 7 RT 2797, 2833; 9 RT 3553.) These questions were tantamount to asking generally about poverty or abuse, but without asking the jurors to prejudge the case. Because defense counsel was not completely precluded from asking about mitigating circumstances, any error was harmless. VIII.APPELLANT’S CHALLENGES TO CALIFORNIA’S DEATH PENALTY STATUTE HAVE ALL BEEN REPEATEDLY REJECTED BY THIS COURT AND ARE OTHERWISE LACKING IN MERIT Appellant alleges numerousaspects of California’s 1978 death penalty sentencing schemeviolate the United States Constitution. (AOB 296-316.) As appellant himself concedes (AOB 296), manyofthese claims have beenpresented to, and rejected by, this Court in prior capital appeals. Further, the 1978 death penalty law has been repeatedly upheld as constitutional by the United States Supreme Court. (Brown v. Sanders 167 (2006) 546 U.S. 212; Brown v. Payton (2005) 544 U.S. 133; Tuilaepa v. California (1994) 512 U.S. 967; Boyde v. California (1990) 494 U.S. 370; California v. Brown (1987) 479 U.S. 538; California v. Ramos (1983) 463 U.S. 992.) As long as the state narrowstheclass of defendants eligible for the death penalty, and the state provides a meansforthe individualized penalty determination that permits the sentencer to considerall mitigating evidencerelevant to the defendant’s record, personal characteristics, and circumstancesofhis crime, there are few restrictions on the state’s statutory schemefor carrying out this punishment. (Kansas v. Marsh (2006) 548 U.S. 163, 174; Buchanan v. Angelone (1998) 522 U.S. 269, 275; Tuilaepav. California, supra, 512 U.S. at pp. 971-979; McCleskey v. Kemp (1987) 481 U.S. 279, 305-306.) Becauseappellantfails to raise anything new orsignificant which would cause this Court to depart from its earlier holdings, his claims should all be rejected. Moreover, as this Court has observedin the past, it is entirely properto reject his complaints by case citation, without additional legal analysis. (People v. Harris (2008) 43 Cal.4th 1269, 1322-1323; People v. Page (2008) 44 Cal.4th 1, 60-61; People v. Barnwell (2007) 41 Cal.4th 1038, 1058-1059.) A. California’s Death Penalty Adequately Narrowsthe Class of Offenders that are Death Eligible Appellant contends that California’s death penalty statute is unconstitutional because section 190.2 is impermissibly broad andfails to adequately narrow theclass of offenders that are eligible for the death penalty. (AOB 296-297.) This Court has repeatedly rejected this contention. (People v. Harris, supra, 43 Ca1.4th at p. 1322; People v. Barnwell, supra, 41 Cal.4th at p. 1058; People v. Bonilla (2007) 41 Cal.4th 313, 358.) He provides no basis for this Court torevisit its decisions rejecting this claim, 168 especially in this case, where he committed multiple murders by shooting the victims in the head at close range. B. Penal Code Section 190.3 is Constitutional Appellant contends that section 190.3 is unconstitutional because factor (a) does not sufficiently narrow those circumstances under which the death penalty is imposed. (AOB 297-298.) The United States Supreme Court and this Court have rejected this contention. (Tuilaepa v. California, supra, 512 U.S. at pp. 975-980; People v. Harris, supra, 43 Cal.4th atp. 1322; People v. Erasure (2008) 42 Cal.4th 1037, 1066.) He does not provide anybasis for this Court to revisit its prior decisionsrejecting this contention. C. The Death Penalty Statute and Accompanying Jury Instructions Adequately Set Forth the Appropriate BurdenofProof 1. There is no Requirement for Findings Beyond A Reasonable Doubtat the Penalty Phase Appellant argues that he had a Due Process and Eighth Amendment constitutional right. to a jury determination beyond a reasonable doubtofall facts essential to the imposition of the death penalty based on Blakely v. Washington (2004) 542 U.S. 296, Ring v. Arizona (2002) 536 US. 584, and Apprendi v. New Jersey (2000) 530 U.S. 466.AOB 299-300.) This Court hasrejected this contention. (People v. Eubanks (2011) 53 Cal.4th 110, 153-154; People v. Horvater (2008) 44 Cal.4th 983, 1030.) He does not provide anybasis for this Court to revisit its prior decisions rejecting this contention. 2. Capital Sentencing is not Susceptible to Burdens of Proof or Persuasion; Appellant was not Entitled to an Instruction on the Presumption of Life Appellant also contends that the jury should have been instructed that the State had the burden ofpersuasion regarding the existence of any factor 169 in aggravation, whether aggravating factors outweighed mitigating factors, and the appropriateness of the death penalty, and that it was presumedthat life without parole was an appropriate sentence. (AOB 301-302.) This Court has rejected these contentions. (People v. Eubanks, supra, 53 Cal.4th at p. 154; People v. Horvater, supra, 44 Cal.4th at pp. 1029-1030.) He does not provide any basis for this Court to revisit its prior decisions rejecting this contention. | 3. Unanimity with Respect to Aggravating Factorsis not Required by Statute or as a Constitutional Safeguard Next, appellant argues the death verdict was not premised on unanimousjury findings with respect to the aggravating factors and unadjudicated criminal activity. (AOB 302-305.) This Court has rejected these contentions. (People v. Eubanks, supra, 53 Cal.4th at p. 153.) He does not provide any basis for this Court to revisit its prior decision rejecting this contention. 4. CALJIC No. 8.88 is Clear Appellant argues that the phrase “so substantial” in CALJIC No.8.88 is an impermissibly broad phrase that failed to limit the sentencer’s discretion in a mannersufficient to minimizetherisk of arbitrary or capricious sentencing. (AOB 305.) This Court has rejected this contention. (People v. Dement (2011) 53 Cal.4th 1, 56.) He does not provide any | basis for this Court to revisit its prior decision rejecting this contention. 5. CALJIC No. 8.88 Informed the Jury that the Central Determination was whether Death was an Appropriate Sentence Appellant argues that the phrase “warrants” as referred to in CALJIC No. 8.88 failed to makeclear that the ultimate question in the penalty phase of a capital case is whether death is the appropriate penalty. (AOB 305- 170 306.) This Court has rejected this contention. (People v. Dement, supra, 53 Cal.4th at p. 56.) He does not provide any basis for this Court to revisit its prior decision rejecting this contention. 6. CALJIC No. 8.88 Is Not Constitutionally Flawed because It Fails to Inform the Jury ThatIfIt Determines the Mitigating Factors Outweigh the Aggravating Factors, It Is Required to Return a Sentence of Life Imprisonment Without the Possibility of Parole Appellant argues that CALJIC No. 8.88 only informed the jury ofthe circumstancesthat permitted the rendition or a death verdict and failed to direct them to imposea sentenceoflife imprisonment without parole when the mitigating circumstances outweighed the aggravating circumstancesas required by section 190.3. (AOB 306-307.) This Court has rejected this contention. (People v. Dement, supra, 53 Cal.4th at p. 56.) He does not provide any basis for this Court to revisit its prior decision rejecting this contention. -7. The Instructions Do Not Impermissibly Fail to Inform The Jurors Regarding The Standard of Proof and Lack of Need For Unanimity as to Mitigating Circumstances Next, appellant argues that the failure of the jury instructionsto set forth a burden of proof impermissibly foreclosed thefull consideration of mitigating evidence required by the Eighth Amendment. (AOB 307-308.) This Court hasrejected this contention. (People v. Low (2011) 52 Cal.4th 46, 78.) He does not provide anybasis for this Court to revisit its prior decision rejecting this contention. 171. 8. During The Penalty Phase of a Capital Prosecution, The Court Need Not Instruct on a Presumptionof Life. Appellant also argues that the penalty jury should be instructed on the presumption oflife. (AOB 308-309.) This Court has rejected this contention. (People v. Low, supra, 52 Cal.4th at p. 78.) He does not provide any basis for this Court to revisit its prior decision rejecting this contention. D. Written Findings of the Factors in Aggravation are Not Required Appellant contends he was denied his Sixth, Eighth, and Fourteenth Amendmentrights to the federal constitution, as well as to meaningful appellate review from an absenceof written findings by the jury showing the aggravating factors relied on to impose death. (AOB 309-310.) This Court has repeatedly rejected this contention. (People v. Low, supra, 52 Cal.4th at p. 78; People v. Harris, supra, 43 Cal.4th at p.1322.) He provides no basis for this Court to revisit its decisions rejecting this claim. E. The Jury was Properly Instructed on Mitigating and Aggravating Factors 1. The Use of Restrictive Adjectives “Extreme”and “Substantial” in Defining Some of The Statutory Mitigating Factors is Permissible Appellant arguesthat the use ofrestrictive adjectives as referenced in CALJIC No.8.85 acted as barriers to the consideration of mitigation in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments. (AOB 310.) This Court has repeatedly rejected this contention. (People v. Mendoza (2011) 52 Cal.4th 1056, 1098; People v. Jennings (2010) 50 Cal.4th 616, 690.) He does not provide any basis for this Court to revisit its prior decisions rejecting this contention. 172 2. The Trial Court Was Not Required to Delete Inapplicable Factors From TheInstruction Appellant arguesthe trial court failed to omit sentencing factors that were inapplicableto his case as listed in CALJIC No.8.85 in violation of his constitutional rights. (AOB 310-311.) This Court hasrejectedthis contention. (People v. Dement, supra, 53 Cal.4th at pp. 56-57.) He does not provide anybasis for this Court to revisit its prior decision rejecting this contention. 3. The Trial Court Was Not Required to Instruct That The Jury Can Consider Certain Statutory Factors Only in Mitigation Healso argues that CALJIC No.8.85 failed to advise the jury which of the sentencing factors were aggravating, mitigating, or both in violation of his Eighth and Fourteenth Amendmentrights. (AOB 311.) This Court has rejected this contention. (People v. Dement, supra, 53 Cal.4th at pp. 56-57.) He does not provide any basis for this Court to revisit its prior decision rejecting this contention. | F. Appellant is not Entitled to Inter-Case Proportionality Review Appellant contends inter-case proportionality is necessary to ensure constitutional implementation of California’s death penalty. (AOB 312.) -‘This Court and the United States Supreme Court have rejected the contention that inter-case proportionality review is constitutionally required. (Pulley v. Harris (1984) 465 U.S. 37, 51-54; People v. Eubanks, supra, 53 Cal.4th at p. 154.) He does not provide any basis for this Court to revisit its prior decision rejecting this contention. 173 G. Differences in Sentencing Procedures for Non-Capital Defendants Do Not Create a Denial of Equal Protection for Capital Defendants Appellant complains that he is being denied equal protection because as a capital defendant he was not afforded the same procedural safeguards as non-capital defendants, i.e. a unanimousjury finding on a sentencing enhancement and proofof the aggravating factors beyonda reasonable doubt. (AOB 312-313.) This Court has repeatedly rejected this contention that the death penalty law denies capital defendants equal protection because it provides a different method of determining the sentence than is used in noncapital cases. (People v. Eubanks, supra, 53 CalAth at p. 154; People v. Hovarter (2008) 44 Cal.4th 983, 1030.) He cites no basis for this Court to revisit its prior decisions rejecting this claim. H. Appellant’s Death Sentence Doesnot Violate International Normsof Decency, Due Process, or The Eighth Amendment Appellant complains that his death sentence violates international norms of decency, due process and the Eighth Amendment. (AOB 313.) These contentions have already beenrejected by this Court. (Peoplev. Eubanks, supra, 53 Cal.4th at pp. 152-153; People v. Hovarter, supra, 44 Cal.4th at p. 1029.) Hepresents no reason for this Court to revisitits decisions rejecting the claim that the death penalty violates international norms of decency, due process and the-Eighth Amendment. IX. THERE WERE NO ERRORS AT TRIAL; THUS, THERE WAS NO CUMULATIVE EFFECT Appellant contends numerouserrors considered cumulatively denied him from receivinga fair trial. (AOB 314-316.) Noindividualerrors occurred during appellant’s trial. Moreover, even if errors are assumed,as discussed herein, they do not require reversal of his convictions or sentence,either individually or cumulatively. (People v. Eubanks, supra, 174 53 Cal.4th at p. 152; People v. Mendoza (2011) 52 Cal.4th 1056, 1099; People v. Guerra (2006) 37 Cal. 4th 1067, 1165; People v. Slaugher (2002) 27 Cal.4th 1187, 1223; People v. Koontz (2002) 27 Cal.4th 1041, 1094; People v. Cooper (1991) 53 Cal.3d 771, 830.) He received thefairtrial to which he wasentitled, even if it may not have been a perfecttrial. (See People v. Stewart (2004) 33 Cal.4th 425, 522.) Appellant’s claim of cumulative error should be denied. X. THE TRIAL COURT PROPERLY IMPOSED THE RESTITUTION FINE PURSUANT TO GOVERNMENT CODESECTION 13967 In his final contention, appellant argues that the trial court erroneously imposedtherestitution fine pursuant to Government Code section 13967 because it was based on aninsufficient finding of his ability to pay. He further arguesthat even if the fine was lawful, he was entitled to have the amount reduced by the amountofdirect restitution. (AOB 317-326.) Respondent disagrees in part. The claim regarding the erroneous imposition of the restitution fine was forfeited for failure to raise it in the trial court. In any event, there is no merit to appellant’s claim. Respondent, however, agrees that the fine should be reduced by the amount of direct restitution. A. Appellant Has Forfeited This Claim The right to appeal proceduralerrors in the trial court is forfeited by failing to object. (People v. Scott (1978) 21 Cal.3d 284, 290.) In People v. ‘Gibson (1994) 27 Cal.App.4th 1466, 1467, the defendant challenged the imposition of a $2,200 restitution fine pursuant to Government Code section 13967, subdivision (a), as recommended bythe probation report. The appellate court found that because defendant did notraise the issue in the trial court, the issue was forfeited. (/d. at pp. 1468-1469; see also People v. Crittle (2007) 154 Cal.App.4th 368, 371 [defendantfailed to object below andforfeited challenge to imposition of a section 1202.5, 175 subdivision (a) restitution fine (crime prevention fine and penalty) on the ground that the court did not make a finding ofhis ability to pay and nothing in the record showedthat he hadthe ability to pay; Peoplev. Valtakis (2003) 105 Cal.App.4th 1066, 1072 [defendant forfeits right to appeal probation fees imposed pursuant to Penal Code section 1203.1b without a hearing on ability to pay if he did notfirst object]; People v. Hennessey (1995) 37 Cal.App.4th 1830, 1836 [imposition of Government Code, § 13967 forfeited where no objection below].)” | Appellant, relying on People v. Butler (2003) 31 Cal.4th 1119, attempts to avoid this result by framing his contention as one of insufficiency of evidence. (AOB 320-322.) His reliance on Butler is misplaced becauseit dealt with the trial court’s obligation undersection 1202.1 to make a finding and note that finding when ordering a defendant to submit to HIV testing. The court held that the defendantdid notforfeit a challenge to the sufficiency of the evidence to support such an order because “involuntary HIVtesting is strictly limited by statute and Penal Codesection 1202.1 conditions a testing order upon a finding ofprobable cause.” (/d. at p. 1123.) This case, on the other hand, involves the belated challenge to the imposition ofa fee. Butler is therefore distinguishable. In effect, the deficiency alleged was that the statutory procedure was not followed, not that there was insufficient evidence. Had appellant objected to the imposition of the fee on the basis that the court had not determinedhis ability to pay, the court could haveeither made the finding, held a hearing, or set a hearing on ability to pay. Because of appellant’s failure to object, no such finding or hearing washeld. It is therefore 7| The issue of whetherthe claim ofinability to pay a fee is forfeited by failure to object at sentencing is pending before this Court. (People v. McCullough, $192513.) 176 unjustified for appellant to assert that there was insufficient evidence of ability to pay, when no such evidence waspresented becauseofhis failure to object. The reason objections are required is so thatthat trial courts can address and efficiently remedy any deficiency. Indeed, the following is elementary: As a matter of fairness to the trial court, a defendant should not be permitted to assert for the first time on appeal a procedural defect in imposition ofa restitution fine,i.e., the trial court's alleged failure to consider defendant's ability to paythefine. (People v. Saunders (1993) 5 Cal.4th 580.) Rather, a defendant must makea timely objection in thetrial court in order to give that court an opportunity to correct the error; failure to object should preclude reversal of the order on appeal. (/bid.; Story v. Nidiffer (1905) 146 Cal. 549, 552-553 [80 P. 692]; People v. Spinks (1961) 190 Cal.App.2d 366, 368 [11 Cal.Rptr. 923]; cf. People v. Lilienthal (1978) 22 Cal.3d 891, 896 [150 Cal.Rptr. 910, 587 P.2d 706]; People v. Newlun (1991) 227 Cal.App.3d 1590, 1604 [278 Cal.Rptr. 550].) (People v. Gibson, supra, 27 Cal.App.4th at p. 1468.) In addition, this Court’s decision in People v. Gamache (2010) 48 Cal.4th 347, 409, held that a defendant forfeited an “ability to pay” objection to the trial court’s assessment of a $10,000 restitution fund fine under section 1202.4,by failing to raise the claim during sentencing. If an ability-to-pay objection to a restitution fund fine under section 1202.4is forfeited by failingto raise it at trial, then the failure to object, or alternatively, the failure to produce evidenceof the defendant’s inability to pay a fine recommendedin the probation officer’s report, should also forfeit the contention that the defendant lacks the ability to pay a fine under Government Codesection 13967, subdivision (a). This is especially true when,as here, the fine is recommendedin the probation report. (3 CT 747.) The claim has been forfeited. 177 B. The Sentencing Court Fulfilled Its Duty to Make The Requisite Determination of Appellant’s Ability to Pay Before appellant was sentenced in 1993, Government Codesection 13967 required the court to impose a restitution fine in an amount ranging from $100 to $10,000, without any consideration to a defendant’s ability to pay. (People v. McGhee (1988) 197 Cal.App.3d 710, 715.) In 1992, an amendmentto this section raised the minimum amountofthe fine from $100 to $200, and addedthe language:“subject to the defendant’s ability to pay.” (Stats.1992, ch. 682, § 4). The applicable restitution statutes in effect at the time of appellant’s 1993 crime were section 1202.4 and former GovernmentCodesection 13967, which provided as pertinent: Section 1202.4: (a) In any case in which a defendantis convicted of a felony, the court shall order the defendant to pay a restitution fine as provided in subdivision (a) of Section 13967 of the Government Code.Suchrestitution fine shall be in addition to any other penalty or fine imposed andshall be ordered regardless of the defendant's present ability to pay. However,if the court finds that there are compelling and extraordinary. reasons, the court may waive imposition of the fine. When such a waiveris granted, the court shall state on the record all reasons supporting the waiver. . (Historical and Statutory Notes, 50D West’s Ann. Pen. Code (2004 ed.) foll. § 1202.4, pp. 175-176.) Former GovernmentCodesection 13967: (a) Upon a person being convicted of any crime..., the court shall ... order the defendant... to pay restitution to the victim in accordance with subdivision (c). In addition,if the person is convicted of one or more felony offenses, the court shall impose a separate and additionalrestitution fine ofnotless than ... $200 ..., subject to the defendant’s ability to pay, and not more than ... $10,000.... Except as provided in Section 1202.4 of the Penal Code and subdivision (c) of this section, under no circumstancesshall the court fail to impose the separate and additionalrestitution fine required by this section.... [] ... [] 178 (c) In cases in which a victim has suffered economic loss as a result of the defendant's criminal conduct, and the defendant is denied probation,in lieu of imposingall or a portion of the restitution fine, the court shall order restitution to be paid to the victim.... Notwithstanding subdivision (a), restitution shall be imposed in the amountof the losses, as determined. The court shall order full restitution unlessit finds clear and compelling reasonsfor not doing so, and states them on the record. A restitution order imposed pursuantto this subdivision shall identify the losses to which it pertains, and shall be enforceable as a civil judgment.....[{] Restitution ordered pursuantto this subdivision shall, to the extent possible, be of a dollar amount that is sufficient to fully reimburse the victim ... for all determined economiclosses incurred as the result of the defendant's criminal conduct.... [{] For any order ofrestitution made pursuantto this subdivision, the defendant shall have the ‘right to a hearing before the judge to dispute the determination made regarding the amountofrestitution. (Stats.1992, ch. 682, §§ 4, 12, pp. 2922-2923, 2928, urgency provisioneff. Sept. 12, 1992.) The two statutes were harmonized by requiringthetrial court to consider a defendant’s ability to pay in imposing the minimum restitution fine. (People v. Frye (1994) 21 Cal.App.4th 1483, 1487.) People v. Hennessey is instructive. In Hennessey, the defendant asserted the sentencing court failed to determinehis ability to pay the $4,000 restitution fine pursuant to Government Codesection 13967 and argued the record failed to support such a finding. (People v. Hennessey, supra, 37 Cal.App.4th at p. 1836.) In rejecting this claim, the Hennessey court first noted that the language of Government Code section 13967 made no requirementthatthe trial court make an express finding in the record that a defendant hasthe ability to pay. “Absent a showingto the contrary, we presumethetrial court fulfilled its duty to make the requisite determination.” (People v. Hennessey (1995) 37 Cal.App.4th at p. 1836, citing People v. Frye (1994) 21 Cal.App.4th 1483, 1485.) 179 The Hennessey court continuted that it was “necessary only that the record contain evidence supporting an implied determination ofability to pay.” (People v. Hennessey, supra, 37 Cal.App.4th at p. 1837.) It noted: [I]n determining whether a defendanthasthe ability to pay a restitution fine, the court is not limited to considering a defendant’s presentability but may consider a defendant’s ability to pay in the future. This included the defendant’s ability to obtain prison wages and to earn moneyafter his release from custody. (Id. at p. 1836.) Here, the record supports the implied finding of ability to pay. When not incarcerated, appellant was steadily employedasa presserat McKenry’s andpossessedskills in that field. To be sure, when incarcerated at Folsom Prison in the mid-1980’s, appellant workedin the laundryfacility and was considered a good worker who never caused problems. (25 RT 8225, 8230, 8236, 8238-8239, 8242.) Because of these skills, appellant has the ability to obtain prison wages and earn money during his incarceration. Hence,the court properly found appellant hadthe ability to pay the restitution fine. C. The Restitution Fine Should be Reduced by The AmountofVictim Restitution Appellant argues that the sentencing court was required to offset the $10,000 restitution fine pursuant to Government Codesection 13967, subdivision (a), when it also entered an orderfor victim restitution in the amountof $4,000. (AOB 323-325.) It appears he is correct. Government CodeSection 13967, subdivision (c), permitted direct restitution, in lieu of all or a portion oftherestitution fine under subdivision (a) for a maximum of $10,000. (Stats. 1992, ch. 682, § 4, p. 2922, emphasis added; see also People v. Forshay (1995) 39 Cal.App.4th686, 690 [Attorney General _ concedes any amountofrestitution payable directly to the victim’s family under Government Code section 13967, former subdivision (c) should be 180 offset against any fine ordered under former subdivision (a)]; People v. Zito (1992) 8 Cal.App.4th 736, 743 [trial was prohibited from imposing a $10,000 restitution fine in light of its order for $300,000 in direct restitution]; People v. Cotter (1992) 6 Cal.App.4th 1671, 1677 .) Thus, the restitution fine should be reduced by $4,000, the amount of victim restitution imposed by the sentencing court. CONCLUSION Accordingly, for all of the foregoing reasons, respondent respectfully asks this Court to reducethe restitution fine imposed pursuant to Government Code section 13967, subdivision (a), and to otherwise affirm the judgmentin full. Dated: March 15, 2012 Respectfully submitted, KAMALAD. HARRIS Attorney General of California DANER.GILLETTE Chief Assistant Attorney General MICHAEL P. FARRELL Senior Assistant Attorney General ERIC L. CHRISTOFFERSEN Supervising Deputy Attorney General nneraHy JENNEVEE H. DE GUZMAN . Deputy Attorney General Attorneysfor Respondent SA1996XS0012 31420204.doc 181 CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S BRIEFuses a 13 point Times New Romanfont and contains 53,828 words. Dated: March 15, 2012 KAMALA D. HARRIS Attorney General of California foe JENNEVEE H. DE GUZMAN Deputy Attorney General Attorneys for Respondent DECLARATION OF SERVICE BY U.S. MAIL Case Name: People v. Case No.: S057156 I declare: I am employedin the Office of the Attorney General, which is the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the businesspractice at the Office of the Attorney Generalfor collection and processing of correspondencefor mailing with the United States Postal Service. In accordance with that practice, correspondenceplaced in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On March 19, 2012, I served the attached RESPONDENT’S BRIEFbyplacing a true copy thereof enclosedin a sealed envelopein the internal mail collection system at the Office ofthe Attorney Generalat 1300 I Street, Suite 125, P.O. Box 944255, Sacramento, CA 94244-2550, addressed as follows: Sacramento County Counsel's Office Robin Kallman ~ 700 Street, Suite 2650 Deputy State Public Defender Sacramento, CA 95814 State Public Defender's Office - San Francisco California Appellate Project (SF) 221 Main Street, 10th Floor 101 SecondStreet, Suite 600 San Francisco, CA 94105 San Francisco, CA 94105-3647 Counsel for Appellant Charles E. Case Court of Appeal Sacramento County District Attorney's Third Appellate District Office 621 Capitol Mall, 10th Floor P.O. Box 749 Sacramento, CA 95814 Sacramento, CA 95814-0749 Hayes H. Gable,TI Attorney at Law 428 J Street, Suite 350 Sacramento, CA 95814 Stacy R. Bogh 2617 K Street, Suite 225 Sacramento, CA 95816 I declare underpenalty of perjury underthe lawsofthe State of California the foregoingis true and correct and that this declaration was executed on March 19, 2012, at Sacramento, California. Declarant SA1996XKS0012 31425229.doc