PEOPLE v. CLARK (WILLIAM CLINTON)Respondent’s BriefCal.October 16, 2006IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, CAPITAL CASE v. $066940syp-Chae . a4 ~ toy WILLIAM CLINTON CLARK, Fiy ix ph Defendant and Appellant. UCT y & 9 Frac 506 at‘rick Kk QO:os “ief Orange County Superior Court No. 94CF0821 Be~Shyo Se The Honorable Jean Rheinheimer/John J. Ryan, Judges RESPONDENT?’S BRIEF SUPREME COURT COPY BILL LOCKYER Attorney General of the State of California MARYJO GRAVES Chief Assistant Attomey General GARY W. SCHONS Senior Assistant Attorney General HOLLYD. WILKENS Deputy Attorney General DANIEL ROGERS Deputy Attorney General State Bar No. 204499 110 West “A”Street, Suite 1100 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 645-2283 Fax: (619) 645-2191 Email: Daniel.Rogers@doj.ca.gov Attorneys for Respondent TABLE OF CONTENTS STATEMENT OF THE CASE STATEMENT OF FACTS Guilt Phase Prosecution Evidence The Comp USA Robbery And The Murder Of Kathy Lee The Murder Of Ardell Williams ’ Defense Evidence Penalty Phase Retrial Prosecution Evidence Defense Evidence ARGUMENT I Il. Hil. IV. THE ORDER DENYING CLARK TELEPHONE ACCESS FROM THE ORANGE COUNTY JAIL DID NOT VIOLATE HIS SIXTH AMENDMENT RIGHT TO COUNSEL THE PRELIMINARYHEARINGWAS PROPERLY CONTINUED TO MAINTAIN JOINDER CLARK’S TRIAL IN ORANGE COUNTY FOR ARDELL WILLIAMS’S MURDER DID NOT VIOLATE HIS VENUE AND VICINAGE RIGHTS BECAUSE HE PERFORMED PREPARATORY ACTS IN ORANGE COUNTY AND ORANGE COUNTY BORE A REASONABLE RELATIONSHIP TO THE MURDER THE TRIAL COURT PROPERLY DENIED CLARK’S MOTION TO RECUSE THE ORANGE COUNTY DISTRICT ATTORNEY’S OFFICE Page 13 14 14 14 21 21 25 27 Vil. Vill. IX. TABLE OF CONTENTS(continued) BECAUSE THERE WASNO EVIDENCE OFANY CONFLICT ALLEGING BOTH MURDER IN THE COURSE OF ROBBERY AND MURDERIN THE COURSE OFBURGLARY SPECIAL CIRCUMSTANCESAS TO THE MURDER OF KATHY LEE BASED ON THE SAME COURSE OF CONDUCT OF BURGLARIZING AND ROBBING THE COMP USA STORE DID NOT VIOLATE THE EIGHTH AMENDMENT CLARK’S MOTION TO SUPPRESS EVIDENCE SEIZED IN HIS JAIL CELL WAS PROPERLY DENIED BECAUSE HE HAD NO EXPECTATION OF PRIVACY THE PRETRIAL IDENTIFICATION PROCEDURE BY WHICH MATTHEW WEAVER IDENTIFIED CLARKWAS NOT UNDULY SUGGESTIVE AND HIS SUBSEQUENT IN-COURT IDENTIFICATION OF CLARK WAS PROPER UNDER THE TOTALITY OF THE CIRCUMSTANCES THE TRIAL COURT PROPERLY DENIED CLARK’S SEVERANCE MOTION BECAUSE THE STATUTORY REQUIREMENTS FOR JOINDER WERE SATISFIED AND CLARK FAILED TO MEET HIS BURDEN OF ESTABLISHING PREJUDICE RESULTING FROM THE JOINDER OF THE CHARGES CLARKEXPRESSLYABANDONED HIS MOTION TO DISCOVER THE PROSECUTION’S STANDARDS FOR CHARGING SPECIAL CIRCUMSTANCES AND, REGARDLESS, HIS DISCOVERY MOTION WAS WITHOUT MERIT JEANETTE MOORE’S' TESTIMONY REGARDING HER RECEIPT OF A THREATENING LETTER AND NEWSPAPER CLIPPING IN COUNTY JAIL WAS PROPERLY il Page 29 31 32 34 38 42 XII. Xi. XIV. TABLE OF CONTENTS(continued) ADMITTED AT THE PRELIMINARY HEARING BECAUSE HER STATE OF MIND WAS RELEVANT TO THE ISSUE OF HER CREDIBILITY ERIC CLARK’S STATEMENT TO MATTHEW WEAVER THAT HE WOULDBE PAID $100 TO HELP MOVE COMPUTERS FROM CLARK’S COMPUTER STORE WAS PROPERLY ADMITTED AT THE PRELIMINARY HEARING AS NON-HEARSAY AND, IN ANY EVENT, THE ADMISSION OF A CO-CONSPIRATOR EXCEPTION TO THE HEARSAY RULE WAS SATISFIED THE TRIAL COURT’S EXCLUSION OF EVIDENCE AT THE PRELIMINARY HEARING OF LIZ FONTENOT’S KNOWLEDGE REGARDING ARDELL WILLIAMS’S PRIOR CONVICTIONS DID NOT VIOLATE THE CONFRONTATION CLAUSE THE TRIAL COURT PROPERLY FOUND PROSECUTION WITNESS ALONZO GARRETT IN CONTEMPT FOR REFUSING TO TAKE THE OATH AT THE PRELIMINARY HEARING BECAUSE HE HAD NOT VALIDLY INVOKED THE PRIVILEGE AGAINST SELF- INCRIMINATION AND HIS SUBSEQUENT TRIAL TESTIMONY WAS NOT COERCED CLARK HAS FORFEITED HIS CLAIM THAT THE PROCEDURE BYWHICH NENAWILLIAMS IDENTIFIED ANTOINETTE YANCEY’S VOICE AS BEING THAT OF “JANET JACKSON” WAS UNDULY SUGGESTIVE AND, REGARDLESS, THE CIRCUMSTANCES SURROUNDING THE IDENTIFICATION INDICATE NO UNDUE SUGGESTIVENESS CLARK HAS FORFEITED HIS CLAIM THAT THE PROCEDURE BY WHICH ANGELITA iil Page 46 49 53 57 61 XVII. XVIII. TABLE OF CONTENTS (continued) WILLIAMS IDENTIFIED ANTOINETTE. YANCEY’S VOICE AS BEING THAT OF JANET JACKSON WAS UNDULY SUGGESTIVE AND, REGARDLESS, THE CIRCUMSTANCES SURROUNDING THE IDENTIFICATION INDICATE NO UNDUE SUGGESTIVENESS DEFENSE INVESTIGATOR ALAN CLOW’S PRELIMINARY HEARING TESTIMONY REGARDINGTHE DATES AND TIMES OF TWO INTERVIEWS HE CONDUCTED WITH ARDELL WILLIAMS PRIOR TO HER MURDERDID NOT INVOLVE THE DISCLOSURE OF INFORMATION PROTECTED BY EITHER THE ATTORNEY-CLIENT OR WORK PRODUCT PRIVILEGES ANTOINETTE YANCEY’S STATEMENTS MADE WHILE SHE POSED AS A FLOWER DELIVERY PERSON AND AS JANET JACKSON WERE PROPERLY ADMITTED AT TRIAL AS NON- HEARSAY AND, IN ANY EVENT, THE ADMISSION OF A CO-CONSPIRATOR EXCEPTION TO THE HEARSAY RULE WAS SATISFIED CLARK FORFEITED HIS CLAIM THAT THE ADMISSION AT THE PRELIMINARY HEARING OF ARDELL WILLIAMS’S GRAND JURY TESTIMONY AND POLICE INTERVIEW STATEMENTS VIOLATED THE CONFRONTATION CLAUSE BY FAILING TO OBJECT ON CONFRONTATION CLAUSE GROUNDS AND, IN ANY EVENT, THE ADMISSION OF THE EVIDENCE DID NOT VIOLATE THE CONFRONTATION CLAUSE BECAUSE THE STATEMENTS WERE OFFERED FOR NON-HEARSAY PURPOSES CLARK’S FAILURE TO EXERCISE HIS PEREMPTORY CHALLENGES TO REMOVE PROSPECTIVE JURORS HE CONTENDS HAD A iv Page 65 66 70 76 XXII. XXIII. XXIV. TABLE OF CONTENTS(continued) PRO-DEATH BIAS FORFEITS HIS CLAIM ON APPEAL AND, IN ANY EVENT, THE TRIAL COURT CORRECTLY DENIED THE CHALLENGES FOR CAUSE BECAUSE THE PROSPECTIVE JURORS’ VIEWS ON THE DEATH PENALTY WOULD NOT PREVENT OR SUBSTANTIALLY IMPAIR THEM IN THE PERFORMANCEOFTHEIR DUTIES THE TRIAL COURT PROPERLY DISMISSED THREE PROSPECTIVE JURORS BECAUSE THEY UNEQUIVOCALLY EXPRESSED THAT THEIR OPPOSITION TO THE DEATH PENALTY WOULD SUBSTANTIALLY IMPAIR THEIR ABILITY TO PERFORM THEIR DUTIES AS JURORS CLARK’S EXCLUSION FROM THE IMMUNITY HEARING FOR MATTHEW WEAVER AND JEANETTE MOORE DID NOT VIOLATE HIS RIGHT TO BE PRESENT DURING CRITICAL STAGES OFTHE PROCEEDINGS BECAUSE THE HEARING WASNOTA CRITICAL STAGE THE ADMISSION AT TRIAL OF ARDELL WILLIAMS’S GRAND JURY TESTIMONY AND INTERVIEW STATEMENTS TO POLICE DID NOTVIOLATE THE CONFRONTATION CLAUSE BECAUSE CLARK EXPRESSLY WAIVED HIS OBJECTION TO THE ADMISSION OF THE STATEMENTSFOR THEIR TRUTH THE TRIAL COURT PROPERLY ADMITTED ARDELL WILLIAMS’S GRAND JURY TESTIMONY AND POLICE INTERVIEW STATEMENTS FOR THE NON-HEARSAY PURPOSE OF ESTABLISHING MOTIVE AND CORPUS OF THE MURDER OF A WITNESS SPECIAL CIRCUMSTANCE THE TRIAL COURT PROPERLY DENIED CLARK’S MOTION TO SUPPRESS THE 6,000 Page 80 86 90 95 97 XXVII. XXVIII. TABLE OF CONTENTS (continued) LETTERS SEIZED BY ORANGE COUNTY JAIL PERSONNEL BECAUSE HE HAD NO LEGITIMATE EXPECTATION OF PRIVACYIN HIS NON-LEGAL JAIL MAIL AND, THEREFORE, THE MAIL COVER PROCEDURE DID NOT IMPLICATE HIS FOURTH AMENDMENT RIGHTS . THE TRIAL COURT PROPERLY FOUND THAT JEANETTE MOORE’S TESTIMONY WAS NOT THE PRODUCT OF OUTRAGEOUS POLICE CONDUCT AND ITS ADMISSION DID NOT VIOLATE CLARK’S DUE PROCESS RIGHTS THE TRIAL COURT DID NOT ABUSE ITS DISCRETION UNDER EVIDENCE CODE SECTION 352 IN CONCLUDING THAT THE PROBATIVE VALUE OF LETTERS SHOWING THE INTENSE NATURE OF THE RELATIONSHIP BETWEEN CLARK AND YANCEY WAS NOT SUBSTANTIALLY OUTWEIGHED BY ANY PREJUDICE ARISING FROM THE SEXUAL CONTENT OF THE LETTERS AN OFFER TO STIPULATE TO A CLOSE OR INTIMATE RELATIONSHIP BETWEEN CLARK AND YANCEY WOULD NOT HAVE ADEQUATELY CONVEYED THE CHARACTER OF THE RELATIONSHIP BETWEEN THE TWO AND WOULD HAVE DEPRIVED THE PROSECUTION’S EVIDENCE OF ITS FULL FORCE AND EFFECT THE TRIAL COURT PROPERLY ADMITTED THE LETTER AND NEWSPAPER CLIPPING SENT TO JEANETTE MOORE TO DISSUADE HER FROM TESTIFYING AS EVIDENCE OF CLARK’S CONSCIOUSNESS OF GUILT BECAUSE THERE WAS SUBSTANTIAL EVIDENCE TO CONNECT CLARK TO THE LETTER vi Page 100 103 108 111 114 XXXII. TABLE OF CONTENTS(continued) THE TRIAL COURT PROPERLY RULED THAT CO-DEFENDANT ERVIN’S STATEMENTS,“OH, MY GOSH, NOT A 187, PLEASE LADY, DON’T DIE,” MADE AT THE COMP USA STORE WERE ADMISSIBLE BOTH AS NON-HEARSAY EVIDENCE OF ERVIN’S STATE OF MIND AND AS SPONTANEOUS STATEMENTS UNDER EVIDENCE CODE SECTION 1240 MADE TO EXPLAIN THE SHOOTING OF KATHY LEE THE TRIAL COURT PROPERLY DENIED CLARK’S MOTION TO SUPPRESS LIZ FONTENOT’S TAPE RECORDING OF HER CONVERSATIONS WITH CLARK BECAUSE FONTENOT WAS A PARTY TO THE CONVERSATIONS AND THEREFORE DID NOT VIOLATE THE FEDERAL WIRETAPPING STATUTE THE TRIAL COURT PROPERLY DENIED CLARK’S MOTION TO SUPPRESS THE TAPE RECORDED CONVERSATIONS BETWEEN HIMSELF AND ARDELL WILLIAMS’S SISTER LIZ FONTENOT BECAUSE FONTENOT RECORDED THE CONVERSATIONS AT THE DIRECTION OF INVESTIGATOR GRASSO WITHIN THE MEANING OF PENAL CODE SECTION 633 THE TRIAL COURT PROPERLY ADMITTED SPECIAL AGENT TODD HOLLIDAY’S TESTIMONYREGARDING STATEMENTS MADE TO HIM BY ARDELL WILLIAMS REGARDING HER CONVERSATIONS WITH ERIC CLARK ABOUT THE COMP USA ROBBERY AND MURDER BECAUSE THE STATEMENTS DID NOT VIOLATE THE GENERAL PROHIBITION AGAINST HEARSAY OR THE CONFRONTATION CLAUSE Vii Page 117 121 123 128 XXXIII. XXXIV. XXXVI. TABLE OF CONTENTS(continued) FBI SPECIAL AGENT TODD HOLLIDAY’S TESTIMONY SHOULD NOT HAVE BEEN STRICKEN UNDEREVIDENCE CODE SECTION 771 BASED ON HIS REFUSAL TO SURRENDER HIS NOTES TO THE DEFENSE BECAUSE THE NOTES WERE IN THE CONTROL OF THE FBI AND CLARK FAILED TO FOLLOW ESTABLISHED FBI PROCEDURESIN SEEKING THEIR RELEASE THE TRIAL COURT PROPERLY EXCLUDED EVIDENCE OFTHIRD-PARTY CULPABILITY IN THE MURDER OF ARDELL WILLIAMS BECAUSE THERE WAS NOEVIDENCE LINKING TONY MILLS, THE FATHER OF WILLIAMS’S CHILD, TO HER MURDER THE GRANTS OF IMMUNITY PROVIDED TO MATTHEWWEAVERAND JEANETTE MOORE WERE NOT COERCIVE AND DID NOT REQUIRE THEM TO TESTIFY IN A_ PARTICULAR FASHION THE TRIAL COURT PROPERLY ADMITTED TAPE RECORDINGS OFMATTHEWWEAVER’S INTERVIEWS WITH INVESTIGATOR GRASSO UNDER EVIDENCE CODE SECTION 356 BECAUSE CLARK’S COUNSEL REPEATEDLY QUESTIONED WEAVERABOUT STATEMENTS MADE DURING THE INTERVIEWS ON CROSS- EXAMINATION AND THE PROSECUTION WAS ENTITLED TO HAVE THE JURY HEAR THE ENTIRE INTERVIEWS TO DISPEL THE IMPRESSION THAT INVESTIGATOR GRASSO WAS FEEDING INFORMATION TO WEAVER DURING THE INTERVIEWS IT WAS NOT PROSECUTORIAL ERROR TO INTRODUCE EVIDENCE OF CLARK’S INVOLVEMENT WITH ARDELL WILLIAMSIN THE 1990 SOFT WAREHOUSE THEFT BECAUSE THE EVIDENCE WAS ADMISSIBLE AND NOT Vili Page 131 135 139 142 XXXVIII. XXXIX. TABLE OF CONTENTS(continued) THE SUBJECT OF THE TRIAL COURT’S EARLIERRULING EXCLUDING EVIDENCE OF CERTAIN 1989 COMPUTER THEFTS -THE TRIAL COURT PROPERLY ADMITTED INTO EVIDENCE TAPES PLAYED TO ARDELL WILLIAMS’S MOTHER AND SISTER FROM WHICH THEY IDENTIFIED ANTOINETTE YANCEY’S VOICE TO POLICE BECAUSE THE TAPES WERE RELEVANT TO THE CONTESTED ISSUE OF IDENTITY NENA WILLIAMS’S' IN-COURT IDENTIFICATION AT TRIAL OF ANTOINETTE YANCEY WASNOTTHE PRODUCTOFUNDULY SUGGESTIVE PRETRIAL IDENTIFICATION PROCEDURES THE TRIAL COURT PROPERLY ADMITTED CRIMINAL DEFENSE ATTORNEY JOHN BARNETT’S EXPERT TESTIMONY AS TO THE PRACTICE OF THE CRIMINAL DEFENSE BAR IN PROVIDING DISCOVERY INFORMATION OBTAINED FROM THE PROSECUTION TO SHOW THAT CLARK HAD KNOWLEDGE OF ARDELL WILLIAMS’S POTENTIAL TO GIVE CRITICAL, DAMNING TESTIMONY IN THE COMP USA CASE AND THEREBY ESTABLISH HIS MOTIVE TO MURDER HER A LETTER FROM CLARK TO YANCEY INSTRUCTING HER TO OBTAIN FALSE IDENTIFICATION AND USE IT TO OPEN A BANK ACCOUNT WAS NOT INADMISSIBLE CHARACTEREVIDENCE, BUTWAS PROPERLY ADMITTED FOR THE PURPOSES OF ESTABLISHING CLARK’S IDENTITY AS A MAJOR PARTICIPANT IN THE COMP USA CASE AND THE CREDIBILITY OF JEANETTE MOORE’S TESTIMONY ix Page 146 150 156 157 162 XLIL XLII. XLIV. TABLE OF CONTENTS (continued) THE TRIAL COURT’S INSTRUCTIONS ON REASONABLE DOUBT AND CIRCUMSTANTIAL EVIDENCE ADEQUATELY EXPLAINED THE LAW AND DID NOT LESSEN THE PROSECUTION’S BURDEN OF PROOF BEYOND A REASONABLE DOUBT THE TRIAL COURT PROPERLY INSTRUCTED THE JURY ACCORDING TO CALJIC NO. 2.05, EFFORTS OTHER THAN BY DEFENDANT TO FABRICATE EVIDENCE, BECAUSE THEREWAS AMPLE EVIDENCE THAT CLARK AUTHORIZED THE EFFORTS OF THIRD- PARTIES TO PROCURE FALSE OR FABRICATED EVIDENCE FROM ARDELL WILLIAMS, JEANETTE MOORE AND ALONZO GARRETT THE TRIAL COURT HAD NO SUA SPONTE OBLIGATION TO INSTRUCT THE JURY ACCORDINGTO CALJIC NO.2.91, BURDEN OF PROVING IDENTITY BASED SOLELY ON EYEWITNESSES, AND THE INSTRUCTIONS GIVEN ADEQUATELY ADDRESSED EYEWITNESS IDENTIFICATION AND THE PROSECUTION’S BURDEN OF PROOF THE TRIAL COURT WAS UNDER NO OBLIGATION TO INSTRUCT THE JURY ACCORDING TO CALJIC NO. 3.02 ON THE NATURAL AND PROBABLE CONSEQUENCES DOCTRINE AS TO COUNT 1 BECAUSE THE PROSECUTION RELIED SOLELY ON A FELONY-MURDER THEORY AS TO THAT COUNT THE TRIAL COURT PROPERLY DECLINED TO INSTRUCT THE JURY THAT ARDELL WILLIAMS, JEANETTE MOORE, AND MATTHEWWEAVERWERE ACCOMPLICESAS A MATTER OF LAW UNDER CALJIC NO.3.16 BECAUSE THE EVIDENCE WAS NOT CLEAR Page 166 168 173 174 XLVI. XLVIII. XLIX. LI. TABLE OF CONTENTS(continued) AND UNDISPUTED ON THIS POINT AND IT WAS THEREFORE APPROPRIATE TO INSTRUCT THE JURY TO DETERMINE WHETHER THE WITNESSES WERE ACCOMPLICES ACCORDING TO CALJIC NO.3.19 CLARK FORFEITED ANY CHALLENGE TO CALJIC NO. 6.14 BY NOT OBJECTING IN THE TRIAL COURT AND, IN ANY EVENT, CALJIC NO.6.14 IS A CORRECT STATEMENT OF LAW RELATING TO THE CRIME OF CONSPIRACY THE TRIAL COURT WAS UNDER NO OBLIGATION TO INSTRUCT THE JURY ACCORDING TO CALJIC NOS. 17.10 AND 17.49 BECAUSE THERE WAS NO DEADLOCK OR CONFUSION AS TO THE ORDER OF DELIBERATIONS ON COUNT 7 SUBSTANTIAL EVIDENCE SUPPORTS THE JURY’S. FINDINGS THAT CLARK WAS A MAJOR PARTICIPANT AND ACTED WITH RECKLESS INDIFFERENCE TOHUMAN LIFE IN THE COMP USA CRIMES AND THAT HE HAD AN INTENT TO KILL ARDELL WILLIAMS THE TRIAL COURT PROPERLY DENIED CLARK’S PENAL CODE SECTION 987.9 APPLICATION FOR FUNDS TO HIRE A POLYGRAPH EXPERT WHO WOULD ADMINISTER A POLYGRAPH EXAMINATION TO CLARK BECAUSE THE EXPERT’S TESTIMONY WAS INADMISSIBLE UNDER BOTH EVIDENCE CODE SECTION 351.1 AND THE HEARSAY RULE AND THEREFORE NOT REASONABLY NECESSARY TO CLARK’S DEFENSE THE TRIAL COURT PROPERLY DENIED CLARK’S MOTION TO COMPEL THE PROSECUTION TO STIPULATE TO AN INTIMATE RELATIONSHIP BETWEEN CLARK xi Page 178 183 186 188 193 LI. LIT. LIV. LV. LVI. TABLE OF CONTENTS(continued) AND YANCEY BECAUSE A STIPULATION WOULD HAVE DEPRIVED THE PROSECUTION’S CASE OF ITS PERSUASIVENESS AND FORCEFULNESS SUBSTANTIAL EVIDENCE SUPPORTS THE JURY’S FINDINGS THAT CLARK WAS A MAJOR PARTICIPANT IN THE COMP USA CRIMES AND ACTED WITH RECKLESS INDIFFERENCE TO HUMAN LIFE THERE IS SUBSTANTIAL EVIDENCE THAT YANCEY UTILIZED THE JANET JACKSON RUSE TO CONCEAL HER PURPOSEIN LURING WILLIAMS TO THE CONTINENTAL RECEIVING LOT AND, WHILE WILLIAMS FILLED OUT THE JOB APPLICATION FORMS, ENGAGED IN A PERIOD OF .WATCHFUL WAITING TO MANEUVERINTO A POSITION BEHIND WILLIAMS TO DELIVER THE FATAL SHOT ATANOPPORTUNE MOMENT,THEREBY SUPPORTING THE JURY’S FINDING OF THE LYING-IN-WAIT SPECIAL CIRCUMSTANCE TO BE TRUE ARDELL WILLIAMS DID NOT HAVE TO PERSONALLY WITNESS THE COMP USA ROBBERY AND MURDER OF KATHY LEE IN ORDER TO BE A WITNESS WITHIN THE MEANING OF PENAL CODE SECTION 190.2, SUBDIVISION(A)(10) PENAL CODE SECTION654 DID NOT BAR THE JURY FROM CONSIDERING BOTH THE ROBBERY-MURDERANDBURGLARY-MURDER SPECIAL CIRCUMSTANCES THE EVIDENCE OF CLARK’S INVOLVEMENT IN THE 1990 SOFT WAREHOUSE BURGLARY WAS PROPERLY ADMITTED TO DEMONSTRATE THE RELATIONSHIP BETWEEN CLARK AND WILLIAMS AND Xii Page 199 201 202 205 206 LVII. LVI. LIX. LX. LXI. TABLE OF CONTENTS (continued) CLARK’S MOTIVE TO MURDERWILLIAMS TO REBUT CLARK’S ARGUMENT OF LINGERING DOUBTAS TO HIS GUILT THE EVIDENCE OF THE SOFT WAREHOUSE BURGLARYWAS NOT OFFERED AS EVIDENCE IN AGGRAVATIONAND WAS NOT SUBJECT TO THE STRICTURES OF PENAL CODE SECTION 190.3, SUBDIVISION(b) THE EVIDENCE OFCLARK’S PARTICIPATION WITH ARDELL WILLIAMS IN 1990 SOFT WAREHOUSE BURGLARY PRESENTED ATTHE PENALTY PHASE RETRIAL WAS NOT IMPROPER CHARACTER EVIDENCE THE TRIAL COURT PROPERLY EXCLUDED EVIDENCE THAT, IF SENTENCED TO LIFE WITHOUT PAROLE, CLARKWOULD ALWAYS BE INCARCERATED IN A HIGH SECURITY FACILITY AS SPECULATIVE AND IRRELEVANT THE PROSECUTOR DID NOT ARGUE THAT ANTOINETTE YANCEY FIRED THE FATAL SHOT IN THE WILLIAMS MURDER AT THE PENALTY PHASE RETRIAL THE TRIAL COURT PROPERLY REFUSED A NUMBER OF CLARK’S PROFFERED SPECIAL INSTRUCTIONS AT THE PENALTY PHASE RETRIAL AS BEING ARGUMENTATIVE AND DUPLICATIVE OF OTHER PROPERLY GIVEN INSTRUCTIONS A. The Trial Court Properly Rejected Clark’s Proposed Modifications OfCALJIC No.8.85 B. The Trial Court Properly Rejected Clark’s Proposed Modifications OfCALJIC No. 8.87 xii Page 207 211 214 216 221 222 222 228 TABLE OF CONTENTS(continued) Page C. The Trial Court Properly Rejected Clark’s Proposed Special “Aggravating And Mitigating Factors” Instruction 229 D. The Trial Court Properly Rejected Clark’s Proposed Special “Scope Of Mitigation: No Mitigation Necessary To Reject Death”Instruction 232 E. The Trial Court Properly Rejected Clark’s Proposed Special “Scope And Proof Of Mitigation: Sympathy Alone Is Sufficient To Reject Death” Instruction 233 LXII. CLARK FORFEITED HIS CLAIM THAT THE JURY AT THE PENALTY PHASE RETRIAL SHOULD HAVE BEEN INSTRUCTED THATIT COULD CONSIDERCLARK’S BACKGROUND AS MITIGATIONBYFAILING TO REQUEST SUCH AN INSTRUCTION AND, REGARDLESS, CALJIC NO. 8.85 (K) ADEQUATELY INFORMED THE JURY THAT IT COULD CONSIDER CLARK’S BACKGROUND AS MITIGATION 234 LXIII. CLARKHAS FORFEITED HIS CLAIM THE JURY AT THE PENALTY PHASE RETRIAL SHOULD HAVE BEEN INSTRUCTED ACCORDING TO CALJIC NO. 2.11.45 AND, REGARDLESS, NO ADDITIONAL INSTRUCTION ON UNJOINED PERPETRATORS WAS REQUIRED 236 LXIV. THE TRIAL COURT PROPERLY REFUSED TO INSTRUCT THE JURY ACCORDINGTO CALJIC NO. 2.40 BECAUSE THE INSTRUCTIONIS, BY ITS TERMS, A GUILT PHASE INSTRUCTION AND, IN ANY EVENT, THE CONSIDERATION OF CLARK’S CHARACTER WAS ADEQUATELY COVERED BY CALJIC NO.8.85 (k) 240 LXV. CALIFORNIA’S DEATH PENALTY STATUTE DOES NOT VIOLATE THE UNITED STATES CONSTITUTION 242 X1V LXVI. TABLE OF CONTENTS (continued) Page California’s Death Penalty Law Does Not Violate The United States Constitution Because It Meaningfully Narrows The Class OfPersons Eligible For The Death Penalty 243 California’s Death Penalty Law Does Not Violate The United States Constitution Because Penal Code Section 190.3, Subdivision (a) Does Not Allow Arbitrary And Capricious Imposition OfThe Death Penalty 244 The United States Constitution Does Not Require That Additional Procedural Safeguards Be Imposed At The Penalty Phase Of Capital Trials 245 California’s Death Penalty Law Does Not Violate The Equal Protection Guarantee Of The United States Constitution By Denying Procedural Safeguards To Capital Defendants That Are Afforded To Non-Capital Defendants Because Capital Sentencing Considerations Are Wholly Different Than Those In Non-Capital Cases 246 California’s Death Penalty Law Does Not Violate The United States Constitution Because The Use Of The Death Penalty Does Not Fall Short Of International Norms Of Human Decency 247 THE AGGRAVATING FACTORS SET FORTHIN PENAL CODE SECTION190.3 AND CALJIC NO. 8.85 DID NOT VIOLATE THE UNITED STATES CONSTITUTION 249 A. Penal Code Section 190.3 Factors (a) And (b) Are Not Unconstitutionally Vague 250 B. The Trial Court Had No Sua Sponte Obligation To Delete Inapplicable Mitigating Factors From CALJIC No. 8.85 250 C. The Trial Court Was Not Required To Instruct The Jury Which Factors Were Aggravating And Which Factors Were Mitigating 251 D. The Trial Court Was Not Required ToInstruct The Jury Not To Consider Non-Statutory Aggravating Factors 252 XV TABLE OF CONTENTS(continued) Page E. Penal Code Section 190.3 Factors (d) And (h) Are Not Unconstitutionally Vague . 253 F. The Aggravating Factors Set Forth In Penal Code Section 190.3 And CALJIC No. 8.85 Are Not Unconstitutionally Vague 253 G. Due Process Does Not Require That Aggravating Factors Be Found True Beyond A Reasonable Doubt 254 H. The Eighth And Fourteenth Amendments Do Not Require Intercase Proportionality Review OfDeath Sentences 254 I. The Eighth And Fourteenth Amendments Do Not Require California Afford Capital Defendants With The Same Procedural Safeguards As Other Jurisdictions 254 J. California’s Death Penalty Statute Adequately Narrows The Class Of Persons Eligible For The Death Penalty 255 K. The Lack Of Statewide Capital Case Charging Guidelines Does Not Permit Arbitrary Imposition Of The Death Penalty | 255 LXVH. PENAL CODE SECTION190.3 FACTORS (A),(B), AND (1) ARE NOT UNCONSTITUTIONALLY VAGUE 256 LXVIII. CLARK’S SENTENCE OFDEATH BASED ON HIS PIVOTAL PARTICIPATION IN, AND ULTIMATE RESPONSIBILITY FOR, THE MURDERS OF BOTH KATHY LEE AND ARDELL WILLIAMS DOES NOT SHOCK THE CONSCIENCE OR OFFEND FUNDAMENTAL NOTIONS OFHUMAN DIGNITY AND IS NOT DISPROPORTIONATE TO HIS INDIVIDUAL CULPABILITY 257 LXIX. THE TRIAL COURT WAS NOT REQUIRED TO DEFINE THE TERMS “DEATH” AND “LIFE WITHOUT THE POSSIBILITY OF PAROLE” FOR THE JURY 258 XVi LXX. LXXI. LXXII. LXXIil. LXXIV. LXXV. LXXVI. TABLE OF CONTENTS(continued) THE EQUAL PROTECTION CLAUSE OF THE UNITED STATES CONSTITUTION DOES NOT REQUIRE UNIFORM CHARGING GUIDELINES IN CAPITAL CASES CALIFORNIA’S DEATH PENALTYLAW IS NOT ARBITRARY IN VIOLATION OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS CALIFORNIA’S) DEATH-QUALIFICATION PROCEDURESINJURY SELECTION DOES NOT RESULT IN A DEATH-ORIENTED JURY IN VIOLATION OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS SINCE CALIFORNIA’S DEATH PENALTY LAW DOES NOT VIOLATE THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS AND INTERNATIONAL LAW WILL ULTIMATELY HAVE NO BEARING ON THE INSTANT STATE COURT PROCEEDINGS, A STAY TO SEEK INTERNATIONAL REVIEW IS UNWARRANTED CLARK’S TRIAL DID NOT VIOLATE INTERNATIONAL LAW CLARK’S TRIAL WAS NOT CLOSELY BALANCED AT EITHER THE GUILT AND PENALTY PHASES AND THERE WERE NO ERRORS, INDIVIDUALLY ORCUMULATIVELY WARRANTINGANEW TRIAL CALIFORNIA’S DEATH PENALTY LAW DOES NOT VIOLATE THE UNITED STATES CONSTITUTION BECAUSE ANY DELAY INHERENT IN THE APPELLATE PROCESS SERVES TO SAFEGUARD CLARK’S XVii Page 260 261 263 264 265 266 LXXVII. LXXVIII. TABLE OF CONTENTS(continued) CONSTITUTIONAL RIGHTS AND IS NOT CRUEL AND UNUSUAL PUNISHMENT CLARK’S CHALLENGE TO THE METHOD OF EXECUTION DOES NOT AFFECT THE VALIDITY OF HIS SENTENCE AND, REGARDLESS, CALIFORNIA’S USE OFLETHAL INJECTION AS A METHOD OF EXECUTION DOES NOT VIOLATE THE EIGHTH AND FOURTEENTH AMENDMENTS EVEN ASSUMING THERE WAS ERROR IN CLARK’S TRIAL, ANYERRORWAS HARMLESS EVEN WHEN CONSIDERED CUMULATIVELY CONCLUSION XVili Page 267 268 270 272 TABLE OF AUTHORITIES | Cases 2,022 Ranch, L.L.C. v. Superior Court (2003) 113 Cal_App.4th 1377 Alvarado v. Superior Court (2000) 23 Cal.4th 1121 Bell v. Wolfish (1979) 441 U.S. 520 99 S.Ct. 1861 60 L.Ed.2d 447 Buell v. Mitchell (6th Cir. 2001) 274 F.3d 337 Bush y. Gore (2000) 531 U.S. 98 121 S.Ct. 525 148 L.Ed.2d 388 California v. Green (1970) 399 US. 149 90 S.Ct. 1930 26 L.Ed.2d 489 Campbell v. Wood (9th Cir. 1994) 18 F.3d 662 Chambersv. Mississippi (1973) 410 U.S. 284 93 S.Ct. 1038 35 L.Ed.2d 297 Chapmany. California (1967) 386 US. 18 87 S.Ct. 824 17 L.Ed.2d 705 XIX Page 66-68, 159 95 33, 100 248 260 107 269 197 24, 103, 220 TABLE OF AUTHORITIES (continued) Committee of U.S. Citizens Living in Nicaragua v. Reagan (D.C. Cir. 1988) 859 F.2d 929 Cooper v. Rimmer (9th Cir. 2004) 379 F.3d 1029 Corenevsky v. Superior Court (1984) 36 Cal.3d 307 Crawford v. Washington (2004) 541 U.S. 36 124 S.Ct. 1354 Page 247, 262-265 269 194 158 L.Ed.2d 177 70, 74-78, 95, 131, 151 Davis v. Alaska (1974) 415 U.S. 308 94 S.Ct. 1105 39 L.Ed.2d 347 Davis v. Washington (2006) U.S — SCth __LEd2d 2006 WL 1667285, *12 De Lancie v. Superior Court (1982) 31 Cal.3d 865 Delaware v. Van Arsdall (1986) 475 U.S. 673 106 S.Ct. 1431 89 L.Ed.2d 674 Doe 2 v. Superior Court (2005) 132 Cal.App.4th 1504 XX 132 79, 131 22 54, 56, 132 66, 160 TABLE OF AUTHORITIES (continued) Edmundv. Florida (1982) 458 U.S. 782 102 S.Ct. 3368 73 L.Ed.2d 1140 Fierro v. Gomez (1996) 519 US. 918 117 S.Ct. 285 136 L.Ed.2d 204 Fierro v. Gomez (9th Cir. 1996) 77 F.3d 301 Fierro v. Terhune (9th Cir. 1998) 147 F.3d 1158 Frye v. United States (D.C.Cir. 1923) 293 F. 1013 Furman v. Georgia (1972) 408 U.S. 238 92 S.Ct. 2726 33 L.Ed.2d 346 Garza v. Lapin (7th Cir. 2001) 253 F.3d 918 Gonzales v. Municipal Court (1977) 67 Cal.App.3d 111 Grand Lake Drive In, Inc. v. Superior Court (1960) 179 Cal.App.2d 122 Hanoch Tel-Oren v. Libyan Arab Republic (D.D.C. 1981) 517 F.Supp. 542 Herbert v. Superior Court (1981) 117 Cal.App.3d 661 XX1 Page 189 269 269 269 196 244 265 69, 160 67, 68, 160 247 95, 96 TABLE OF AUTHORITIES (continued) Page Hoffman v. United States (1951) 341 U.S. 479 71 S.Ct. 814 95 L.Ed. 1118 57 Hudson v. Palmer (1984) 468 U.S. 517 104 S.Ct. 3194 82 L.Ed.2d 393 33, 100 In re Gay (1998) 19 Cal.4th 771 199 In re Hicks (11th Cir. 2004) 375 F.3d 1237 264 In re Horton (1991) 54 Cal.3d 82 21, 43 In re Samano (1995) 31 Cal.App.4th 984 26 Izazaga v. Superior Court (1991) 54 Cal.3d 356 69 Lackey v. Texas (1995) 514 USS. 1045 115 S.Ct. 1421 131 L.Ed.2d 304 267 LaGrandv. Stewart (9th Cir. 1998) 133 F.3d 1264 269 Landrum v. Superior Court (1981) 30 Cal.3d 1 25 Malloy v. Hogan (1964) 378 U.S. 1 84 S.Ct. 1489 12 L.Ed.2d 653 58 XXil TABLE OF AUTHORITIES(continued) Manduley v. Superior Court (2002) 27 Cal.4th 537 Mansonv. Brathwaite (1977) 432 US. 98 97 S.Ct. 2243 53 L.Ed.2d 140 McKoyv. North Carolina (1990) 494 US. 433 110 S.Ct.1227 108 L.Ed.2d 369 Morales v. Woodford (2004) 388 F.3d 1159 Old Chiefv. United States (1997) 519 U.S. 172 117 S.Ct. 644 136 L.Ed.2d 574 People v. Alcala (1992) 4 Cal.4th 742 People v. Allen (1986) 42 Cal.3d 1222 People v. Alvarez (1996) 14 Cal.4th 155 People v. Anderson (1987) 43 Cal.3d 1104 People v. Anderson (2001) 25 Cal.4th 543 _ People v. Arias (1996) 13 Cal.4th 92 XXill Page 261 36, 64 217 244 112, 200 174 247 39, 194, 199 244 243, 246, 254, 257, 267 111, 143-145, 200 TABLE OF AUTHORITIES (continued) Page People v. Avila (2006) 38 Cal.4th 491 137, 139, 175, 177, 178, 183, 188, 260 People v. Balderas (1985) 41 Cal.3d 155 39 People v. Bean (1988) 46 Cal.3d 919 207 People v. Benavides (2005) 35 Cal.4th 69 242 People v. Blair (2005) 36 Cal.4th 686 186, 194, 210, 247 People v. Bland (1995) 10 Cal.4th 991 192 People v. Boehm (1969) 270 Cal.App.2d 13 91 People v. Bonin (1988) 46 Cal.3d 659 150 People v. Bonin (1989) 47 Cal.3d 808 111, 112, 200 People v. Box (2000) 23 Cal.4th 1153 194 People v. Boyd (1985) Cal.3d 762 210-213 People v. Bradford (1997) 14 Cal.4th 1005 268 People v. Bradford (1997) 15 Cal.4th 1229 39-41 XXiV TABLE OF AUTHORITIES(continued) People v. Brandon (1995) 32 Cal.App.4th 1033 People v. Breverman (1998) 19 Cal.4th 142 People v. Brigham (1979) 25 Cal.3d 283 People v. Brown (2004) 33 Cal.4th 382 People v. Burgener (2003) 29 Cal.4th 833 People v. Burns (1987) 196 Cal.App.3d 1440 People v. Cage review granted Oct 13, 2004, S127344 People v. Cain (1995) 10 Cal.4th 1 People v. Carpenter (1997) 15 Cal.4th 312 People v. Carrera (1989) 49 Cal.3d 291 People v. Carter (2005) 36 Cal.4th 1114 People v. Catlin (2001) 26 Cal.4th 81 People v. Cavitt (2004) 33 Cal.4th 187 XXV Page 36 236 167 passim 53, 74, 76, 130, 142, 150 101 74 237 244 239 270 266, 271 177 TABLE OF AUTHORITIES (continued) Page People v. Clark (1990) 50 Cal.3d 583 263 People v. Cole (2004) 33 Cal.4th 1158 165, 253 People v. Collie (1981) 30 Cal.3d 43 69 People v. Combs (2004) 34 Cal.4th 821 205, 210 People v. Cox (1991) 53 Cal.3d 618 247 People v. Cox (2003) 30 Cal.4th 916 119 People v. Crew (2003) 31 Cal.4th 822 49, 71, 198 People v. Cudjo (1993) 6 Cal.4th 585- 104, 266, 271 People v. Culuko (2000) 78 Cal.-App.4th 307 - 176 People v. Cummings (1993) 4 Cal.4th 1233 39 People v. Cunningham (2001) 25 Cal.4th 926 passim People v. Daniels (1991) 52 Cal.3d 815 195 People v. Danielson (1992) 3 Cal.4th 691 81 XXV1 TABLE OF AUTHORITIES (continued) People v. Davis (1995) 10 Cal.4th 463 People v. Davis (2005) 36 Cal.4th 510 People v. Dennis (1998) 17 Cal.4th 468 People v. Dickey (2005) 35 Cal.4th 884 People v. Douglas (1990) 50 Cal.3d 468 People v. Durrant (1875) 116 Cal. 179 People v. Edelbacher (1989) 47 Cal.3d 983 People v. Edwards (1991) 54 Cal.3d 787 People v. Espinoza (1992) 3 Cal.4th 806 People v. Estrada (1995) 11 Cal.4th 568 People v. Farnam (2002) 28 Cal.4th 107 People v. Fields (1996) 13 Cal.4th 289 People v. Ford (1988) 45 Cal.3d 431 XXVII Page 167, 168 33, 94, 97, 100 201, 202, 237, 238 189, 203 149, 164, 215 98, 158 99, 111, 113, 200, 201 64 232, 252 120, 191 106 188 58, 60 TABLE OF AUTHORITIES (continued) Page People v. Frye (1998) 18 Cal.4th 894 54, 55, 216, 243 People v. Fudge (1994) 7 Cal.4th 1075 83 People v. Galante (1983) 143 Cal.App.3d 709 93 People v. Garceau (1993) 6 Cal.4th 140 112, 200 People v. Garvey (1979) 99 Cal.App.3d 320 101 People v. Ghent (1987) 43 Cal.3d 739 130, 249 People v. Giles, S129852 review granted 12/22/04 79 People v. Gordon (1990) 50 Cal.3d 1223 64 People v. Gray (2005) 37 Cal.4th 168 47 People v. Green (2004) 33 Cal.4th 536 30 People v. Griffin (2004) 33 Cal.4th 536 167 People v. Guerra (2006) 37 Cal.4th 1067 114, 115, 136, 194, 215 People v. Gutierrez (1978) 80 Cal.App.3d 829 172 XXVili TABLE OF AUTHORITIES (continued) People v. Haley (2004) 34 Cal.4th 283 People v. Hall (1986) 41 Cal.3d 826 People v. Hall (1980) 28 Cal.3d 143 People v. Hamilton (1988) 46 Cal.3d 123 People v. Hannon (1977) 19 Cal.3d 588 People v. Hardy (1992) 2 Cal.4th 86 People v. Harris (2000) 83 Cal.App.4th 371 People v. Harris (2005) 37 Cal.4th 310 People v. Harrison (2005) 35 Cal.4th 208 People v. Hart (1999) 20 Cal.4th 546 People v. Haskett (1990) 52 Cal.3d 210 People v. Hearn (2002) 95 Cal.App.4th 1163 People v. Hernandez (2003) 30 Cal.4th 835 Page 82, 87-89 136 111, 112, 200 30 170, 172 49, 51, 71, 72, 130, 198 101, 103 48, 52, 75, 116, 120, 137, 143, 156, 249 71, 74, 117, 128, 130, 209 192, 234, 235 210 190 238 XX1X TABLE OF AUTHORITIES (continued) Page People v. Hill (1992) 3 Cal.4th 959 267 People v. Hill (1998) 17 Cal.4th 800 150 People v. Hillhouse (2002) 27 Cal.4th 469 205, 244, 249, 265 People v. Hinton (2006) 37 Cal.4th 839 233 People v. Holt (1997) 15 Cal.4th 619 229, 258, 259 People v. Horning (2004) 34 Cal.4th 871 253 People v. Horton (1995) 11 Cal.4th 1068 179 People v. Jenkins (2000) 22 Cal.4th 900 passim People v. Johnson (1988) 47 Cal.3d 576 38, 40 People v. Johnson (1992) 3 Cal.4th 1183 36 People v. Johnson (2004) 121 Cal.App.4th 1409 74, 76, 130, 142, 150 People v. Jones (2003) 29 Cal.4th 1229 184 People v. Jones (1996) 13 Cal.4th 535 206 XXX TABLE OF AUTHORITIES (continued) Page People v. Jurado (2006) 38 Cal.4th 72 203-205 People v. Kaurish (1990) 52 Cal.3d 648 132, 134, 135, 138 People v. Kelly (1976) 17 Cal.3d 24 196 People v. Kennedy (2005) 36 Cal.4th 595 34, 62 People v. Kipp (1998) 18 Cal.4th 349 168 People v. Kipp (2001) 26 Cal.4th 1100 146 People v. Koontz (2002) 27 Cal.4th 1041 168, 195, 199 People v. Kraft (2000) 23 Cal.4th 978 40 People v. Kurtzman (1988) 46 Cal:3d 322 188 People v. Lang (1989) 49 Cal.3d 991 234 People v. Lawley (2002) 27 Cal.4th 102 185 People v. Lewis (2001) 26 Cal.4th 334 | 179, 181, 227 People v. Loyd (2002) 27 Cal.4th 997 22 XXXi TABLE OF AUTHORITIES (continued) People v. Lucas (1995) 12 Cal.4th 415 People v. Lucero (2000) 23 Cal.4th 692 People v. Manson (1976) 61 Cal.App.3d 102 People v. Marshall (1990) 50 Cal.3d 907 People v. Martinez (2000) 22 Cal.4th 106 People v. Massie (1998) 19 Cal.4th 550 People v. Mattson (1990) 50 Cal.3d 826 People v. Maury (2003) 30 Cal.4th 342 People v. Mayfield (1997) 14 Cal.4th 668 People v. McPeters (1992) 2 Cal.4th 1148 People v. Melton (1988) 44 Cal.3d 713 People v. Memro (1995) 11 Cal.4th 786 People v. Minifie (1996) 13 Cal.4th 1055 XXXil Page 81, 115 253 101 149, 164, 191, 216, 244 50, 72 267 194 38, 245, 251, 258 151 44, 45 32, 207 235 136 TABLE OF AUTHORITIES (continued) Page People v. Mitchell (2005) 131 Cal.App.4th 1210 74, 75, 131 People v. Monterroso (2004) 34 Cal.4th 743 74, 130 People v. Montiel (1993) 5 Cal.4th 877 251 People v. Moon (2005) 37 Cal.4th 1 83, 205, 226, 238 People v. Morales (1989) 48 Cal.3d 527 204 People v. Morris (1991) 53 Cal.3d 152 46, 49, 153, 210 People v. Morrison (2004) 34 Cal.4th 698 118, 119 People v. Musselwhite (1998) 17 Cal.4th 1216 40, 244 People v. Newman (1999) 21 Cal.4th 413 111 People v. Noguera (1992) 4 Cal.4th 599 50, 71, 129 People v. Ochoa (1988) 19 Cal.4th 353 34, 35, 62 People v. Ochoa (2001) 26 Cal.4th 398 passim People v. Ortiz (1995) 38 Cal.App.4th 377 119 XXXIlil TABLE OF AUTHORITIES (continued) People v. Otto (1992) 2 Cal.4th 1088 People v. Parham (1963) 60 Cal.2d 378 People v. Perry (2006) 38 Cal.4th 302 People v. Phillips (1985) 41 Cal.3d 29 People v. Phillips (2000) 22 Cal.4th 226 People v. Pompa-Ortiz (1980) 27 Cal.3d 519 People v. Posey (2004) 32 Cal.4th 193 People v. Price (1991) 1 Cal.4th 324 People v. Prieto (2003) 30 Cal.4th 226 People v. Proby (1998) 60 Cal.App.4th 922 People v. Ramos (1997) 15 Cal.4th 1133 People v. Ramos (2004) 34 Cal.4th 494 People v. Randolph (1970) 4 Cal._App.3d 655 XXXi1V Page 121, 122 | 133 93 101 118 26, 48, 52, 55, 69 28 28 245, 246, 254 190 247 245 91, 92 TABLE OF AUTHORITIES (continued) People v. Ratekin (1989) 212 Cal.App.3d 1165 People v. Ray (1996) 13 Cal.4th 313 People v. Riel (2000) 22 Cal.4th 1153 People v. Roldan (2005) 35 Cal.4th 646 People v. Saddler (1979) 24 Cal.3d 671 People v. Sakarias (2000) 22 Cal.4th 596 People v. Samayoa (1997) 15 Cal.4th 795 People v. Samuels (2005) 36 Cal.4th 96 People v. San Nicolas (2004) 34 Cal.4th 614 People v. Sanders (1990) 51 Cal.3d 471 People v. Sanders (1995) 11 Cal.4th 475 People v. Sandoval (1992) 4 Cal.4th 155 _ People v. Scheid (1997) 16 Cal.4th 1 XXXV Page 123, 127 167, 218, 232, 255, 260 212 69, 90, 93, 161, 163, 164, 220 175 111, 200, 243 270 92 206, 227 62, 65, 207 145, 266, 271 42 111, 200 TABLE OF AUTHORITIES (continued) Page People v. Schmeck (2005) 37 Cal.4th 240 89 People v. Seaton (2001) 26 Cal.4th 598 266, 270 People v. Seijas (2005) 36 Cal.4th 291 57, 59, 159, 132, 133 People v. Slaughter (2002) 27 Cal.4th 1187 239 People v. Snow (2003) 30 Cal.4th 43 26, 29, 30, 243, 246, 254 People v. Stansbury (1995) 9 Cal.4th 824 46, 49, 153, 210 People v. Stewart (2004) 33 Cal.4th 425 26 People v. Stitely (2005) 35 Cal.4th 514 40, 199 People v. Szeto (1980) 29 Cal.3d 20 71, 117, 128 People v. Taylor (2001) 26 Cal.4th 1155 252, 253 People v. Terry (1962) 57 Cal.2d 538 170 People v. Tewksbury (1976) 15 Cal.3d 953 103 People v. Thompson (1988) 45 Cal.3d 86 218, 219 XXXVI TABLE OF AUTHORITIES (continued) People v. Towery (1985) 174 Cal.App.3d 1114 People v. Turner (1994) 8 Cal.4th 137 People v. Valdez (2004) 32 Cal.4th 73 People v. Valentine (1986) 42 Cal.3d 170 People v. Van Eyk (1961) 56 Cal.2d 471 People v. Vieira (2005) 35 Cal.4th 264 People v. Waidla (2000) 22 Cal.4th 690 People v. Ward (2005) 36 Cal.4th 186 People v. Watson (1956) 46 Cal.2d 818 People v. Webb (1993) 6 Cal.4th 494 People v. Welch (1999) 20 Cal.4th 701 People v. Wharton (1991) 53 Cal.3d 522 People v. Wilkinson (2004) 33 Cal.4th 821 XXXVI1 Page 126 167 169, 226 {il 184 232, 252 104, 108, 110, 125, 143, 155, 165 249 passim 167 227 226, 227 195-197 TABLE OF AUTHORITIES (continued) People v. Williams (1997) 16 Cal.4th 153 People v. Wilson (1963) 60 Cal.2d 139 People v. Wilson (2005) 36 Cal.4th 309 People v. Woods (1999) 21 Cal.4th 668 People v. Yeoman (2003) 31 Cal.4th 93 People v. Young (2005) 34 Cal.4th 1149 People v. Zapien (1993) 4 Cal4th 929 Price v. Superior Court (2001) 25 Cal.4th 1046 Richards v. Superior Court (1983) 146 Cal.App.3d 306 Rock v. Arkansas (1987) 483 U.S. 44 107 S.Ct. 2704 97 L.Ed.2d 37 Rogers v. United States (1951) 340 US. 367 71 S.Ct. 438 95 L.Ed. 344 XXXVIli Page 114, 116, 151, 179, 181, 250, 256 26, 27 82, 87 33, 100 35, 63, 112, 200, 252 226, 232, 252, 270 143 28, 81 204 197 58, 59 TABLE OF AUTHORITIES(continued) Page Roper v. Simmons (2005) 543 U.S. 551 125 S.Ct. 1183 161 L.Ed.2d 1 248 Rose v. Clark (1986) 478 U.S. 570 106 S.Ct. 3101 92 L.Ed.2d 460 24 Rushen v. Spain (1983) 464 US. 114 104 S.Ct. 453 78 L.Ed.2d 267 93 Small v. Superior Court (2000) 79 Cal.App.4th 1000 22, 23 Stone v. Superior Court (1982) 31 Cal.3d 503 188 Tapia v. Superior Court (1991) 53 Cal.3d 282 26, 189 Tison v. Arizona (1987) 481 U.S. 137 107 S.Ct. 1676 95 L.Ed.2d 127 189, 192 Tuilaepa v. California (1994) 512 U.S. 967 114 S.Ct. 2630 129 L.Ed.2d 750 245, 250, 256 Turner v. Safley (1987) 482 US. 78 107 S.Ct. 2254 96 L.Ed.2d 64 22, 23, 102 XXX1X TABLE OF AUTHORITIES (continued) United States v. King (9th Cir. 1976) 587 F.2d 956 U.S. v. Morrison (1981) 449 US.361 101 S.Ct. 665 66 L.Ed.2d 564 United States v. Garcia-Meza (6th Cir. 2005) 403 F.3d 364 United States v. Gray (4th Cir. 2005) 405 F.3d 227 United States v. Rodriguez-Marrero (1st Cir. 2004) 390 F.3d 1 United States v. Scheffer (1998) 523 U.S. 303 118 S.Ct. 1261 140 L.Ed.2d 413 United States v. Shryock (9th Cir. 2003) 342 F.3d 948 Victor v. Nebraska (1994) 511 U.S. 1 114 S.Ct. 1239 127 L.Ed.2d 583 Whitman v. Superior Court (1991) 54 Cal.3d 1063 Zant v. Stephens (1983) 462 U.S. 862 103 S.Ct. 2733 77 L.Ed.2d 235 xl Page 122 24 80 79 80 197 122 167 77 243 TABLE OF AUTHORITIES(continued) Constitutional Provisions California Constitution article I, section 17 United States Constitution Fourth Amendment Fifth Amendment Sixth Amendment Eighth Amendment Fourteenth Amendment Statutes 18 U.S.C. §§ 2510-2520 § 2511 § 2511(2\(c) § 2511(2)(d) Code of Civil Procedure §§ 2018.010 to 2018.080 § 2018.030 § 2018.040 Evidence Code § 210 § 350 § 351.1 § 351.1, subd.(a) § 352 § 353 § 353, subd.(a) § 355 § 356 Page 257 32, 33, 100-103 58, 60 21, 22, 24, 28, 132, 249 31, 189, 216, 248, 250, 253-255, 267, 268, 270 28, 216, 248, 250, 253-255, 267, 268, 270 121 123 121 122 68 68 68 46, 47, 98, 111, 114, 136, 154, 157, 208 46, 97, 111, 114, 136, 154, 157, 208 193, 195-198 195 passim passim 128 237, 238 142, 143, 145 xli TABLE OF AUTHORITIES (continued) § 402 § 403, subd. (a)(1) § 404 § 405, subd.(a) § 771 § 771, subd.(c) § 785 § 940 § 952 § 954 § 954.1 § 1101 § 1101, subd. (b) § 1101, subd. (c) § 1200 § 1200, subd. (a) § 1200, subd. (b) § 1223 § 1236 § 1240 § 1250 § 1350 § 1350, subd. (a)(4) Penal Code § 166 § 166, subd. (a)(6) § 189 § 190.2 § 190.2, subd. (a)(3) § 190.2, subd. (a)(10) § 190.2, subd. (a)(17) § 190.2, subd. (a)(17)(A) ~§ 190.2, subd. (a)(17)(G) § 190.2, subd. (d) § 190.3 § 190.3, subd.(a) § 190.3, subd. (b) Page 147 114 57, 60 125 131-134 133, 134 47 57 66, 159 66, 67, 159 40 147, 149, 162, 163, 214, 215 41, 147-149, 162, 164, 215 149, 164, 215 77 49, 71, 198 49, 71, 198 50, 52, 71, 72, 73, 129 198 117-119 118 77, 95, 128 96 61 59 177 244 201 77, 80, 95, 97-99, 205 118 31 31 118, 120, 189 212, 214, 216, 232, 249, 253, 256 213, 244, 245 208, 211 xl § 190.3, subd. (c) § 190.3, subd. (7) § 631 § 632 § 633 § 654 § 781 § 790 § 859b § 954 § 987.9 § 995 § 1050 § 1050.1 § 1111 § 1324 § 1424, subd.(a)(1) § 2600 § 3604, subd.(a) Stats. 2004, ch. 182 §§ 22-23 Other Authorities CALJIC No. No. No. No. No. No. No. No. No. No. 1.00 1.02 2.01 2.02 2.04 2.05 2.06 2.11.5 2.20 2.21.1 xii TABLE OF AUTHORITIES (continued) Page 208 239 123 123-127 123-127 206 28 28 25 38, 40 193, 199 77 25 25, 26 179, 181 61, 90-92, 94 29 22 269 68 112 112 166-168 166-168 169 168-170, 172, 173 170, 172 236-240 174 174 TABLE OF AUTHORITIES (continued) Page No.2.22 174 No. 2.27 174 No. 2.40 240-242 No.2.51 98, 158 No. 2.90 166, 167, 174 No. 2.91 173, 174 No. 3.02 175, 178 No. 3.10 180 No.3.11 141, 180 No. 3.12 180 No.3.13 . 180 No.3.14 180 No. 3.16 178, 179, 182 No.3.18 141, 180 No. 3.19 141, 179, 180, 182 No. 6.14 183, 184 No.8.30 186 No. 8.70 186 No.8.71 186 No. 8.80.1 189, 191 No. 8.84 258 No.8.85 222, 224, 226, 227, 233, 234, 238, 241, 242, 249, 251, 253 No. 8.87 ; 228, 229 No. 8.88 231, 232 No. 17.10 186, 188 No. 17.31 172 No. 17.40 229 No. 17.49 186-188 5 Wigmore, Evidence § 1367 107 xliv IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, CAPITAL v. CASE WILLIAM CLINTON CLARK, $066940 Defendant and Appellant. STATEMENT OF THE CASE On March 27, 1996, the Orange County District Attorney filed a second amended information charging appellant Clark with two counts of murder (Counts 1 and 7: Pen. Code, § 187, subd.(a)); second degree burglary (Count 2: Pen. Code, § 459); three counts ofattempted second degree robbery (Counts 3, 4, and 5: Pen. Code, §§ 664/211), and conspiracy to commit murder (Count 6: Pen. Code, § 182). The information further alleged as to each countthat a principal waspersonally armed with a firearm (Pen. Code, § 12022, subd. (d)) and that Clark had served five prior prison terms (Pen. Code, § 667.5, subd. (b)). The information also alleged a numberof special circumstances under Penal Codesection 190.2, including: 1) that Clark committed murder while in the commission ofburglary (Pen. Code, § 190.2, subd. (a)(17)); 2) that Clark committed murder while in the attempted commission of robbery (Pen. Code, § 190.2, subd. (a)(17)); 3) that Clark committed murder while lying in wait; 4) that Clark murdered a witness for the purpose ofpreventing her from testifying in a criminal proceeding (Pen. Code, § 190.2, subd. (a)(10)); and 5) that Clark was convicted ofmore than one murderin the present proceeding (Pen. Code, § 190.2, subd. (a)(3)). (7 CT 2467-2472.) Clark pled not guilty and denied the special allegations. (7 CT 2476.) The guilt phase of Clark’s trial commenced on March 27, 1996. (7 CT 2476-2478.) On May 14, 1996, Clark admitted the five prior-prison-term allegations. (7 CT 2605-2607.) On May 21, 1996,thejury found Clark guilty as charged and found the firearm and special circumstance allegations to be true. (8 CT 2772-2790.) The penalty phase ofClark’s trial began on June 24, 1996. (8 CT 3054.) On July 11, 1996, the trial court granted Clark’s motion for a mistrial at the penalty phase based onthejury's indication ofits inability to reach a unanimous decision. (9 CT 3228-3230.) On July 26, 1996, the prosecution informed the court and counselthat it would retry the penalty phase. (9 CT 3285.) The penalty phase retrial commenced on September 15, 1997. (12 CT 4636.) On October 27, 1997, the jury returned a verdict of death. (13 CT 4868; 14 CT 5188-5189.) On December 23, 1997, Clark filed a motion to modify his sentence. (14 CT 5214-5225.) On December 24, 1997, Clark filed a motion for a newtrial. (14 CT 5226-5254.) On December29, 1997, the trial court heard and denied both motions, sentenced Clark to a determinate term of nine years in state prison, and entered a judgment of death. (14 CT 5317-5335, 5343.) This appeal is automatic. STATEMENT OF FACTS Clark was convicted and sentenced to death for the murders of Kathy Lee and Ardell Williams. On the evening of October 18, 1991, Lee was waiting for her son Peter to leave work at the electronics store in Orange County where he worked. Unbeknownstto her, the store was being robbed. Whenshe went to check on herson, she wasshot in the head bythe robber. Williams wentto the authorities and implicated Clark as the mastermind of the robbery that resulted in Lee’s murder. While confined in the Orange County Jail, awaiting trial for Lee’s murder, Clark was in possession of transcripts and reports relating to Williams’s cooperation with police. Clark’s girlfriend located Williamsand,usingan alias, arranged for Williamsto come to ajob interview on the morning ofMarch 13, 1994. Williams was later found by a passerby shot execution style at the interview site. Clark’s girlfriend visited him in jail shortly after the murder. Clark’s defense at trial was one ofalibi. In mitigation, Clark argued lingering doubt as to his guilt and presented evidence that he had received various head injuries prior to the murders, resulting in frontal lobe damageto his brain, and was affected by bipolar affective disorder. Clark also presented evidence of his good character and ability to be a role model to other inmates in prison. Guilt Phase Prosecution Evidence The Comp USA Robbery And The Murder Of Kathy Lee At about 10:00 p.m. on the evening of October 18, 1991, cashier Peter Lee wasstraightening up displays after the Comp USAstore located in Fountain Valley had closed to the public at 9:00 p.m. when a man,later identified as Nokkuwa Ervin, approached him from the back ofthe store, put a gun to his temple and told him “not to say anything or he [would] blow [his] fucking head off.” (47 RT 8341-8347.) Ervin gestured for Lee to follow him to the back of the store, where he ordered him to lie on his stomach and ~ handcuffed him. Ervin askedifanyoneelse wasin the store and Leetold him there were two people in the office. Ervin left briefly and returned about 30 secondslater, lifting Lee to his feet by his handcuffs and ordering him to stand by the office. (47 RT 8347.) Comp USA head cashier Arlen Nydam was in the office in the store with manager William Doehr adding up daily sales totals when Ervin entered the office with a gun. Ervin put the gun upto the base ofDoehr’s skull, and said, “Don’t moveor Ill kill you,” and ordered Doehr and Nydam to lie down on the floor. (47 RT 8298, 8303-8306, 8310; 48 RT 8521-8523, 8525.) Ervin handcuffed Nydam and Doehr together and then ordered them to stand outside the office with Lee. (47 RT 8306, 8348; 48 RT 8526-8528.) After searching their pockets and taking the master key to the store from Doehr, Ervin handcuffed the three together in the restroom. (47 RT 8306-8308, 8348; 48 RT 8530-8534.) He returned a short while later saying that the master key did not work. After Doehr assured him that it was the correct key, Ervin left again. (47 RT 8307-8308, 8348; 48 RT 8534-8537.) About a minute later, there was a loud bang and then Ervin returnedagain to ask if any alarms had goneoff. Doehr said no and Ervin left. (47 RT 8348.) Matthew Weaver,’ who had been approached by Clark’s brotherEric Clark to help him and Damian Wilson, both players on Weaver’s college basketball team, move some computers from whathe had been told was Clark’s computerstore to a warehousefor $100, was riding towardthe north side ofthe Comp USAstore in Clark’s BMW with Clark and another man from the nearby Del Taco restaurant where the group had rendezvoused, when Weaversaw a woman lying on the ground next to a car. Then Ervin tried unsuccessfully to dive through the driver’s window of the BMW. (45 RT 8007-8012, 8023-8029; 46 RT 8044-8056.) 1. Prosecution witness Matthew Weavertestified pursuant to a grant of transactional immunity. (45 RT 7999-8002.) 4 Clark, who was driving the BMW,made a U-turn anddroveeast out of the Comp USAparkinglot and onto the freeway as two police cars approached with lights flashing. (46 RT 8057-8060.) Clark exited the freeway on a side street near a car dealership and told Weaverand the other passenger“to get out, you're on your own.” (46 RT 8060.) The two got out ofthe BMW and Weaver called his father from a payphone to come and pick him up. (46 RT 8062-8068; 49 RT 8640-8644.) At 10:30 p-m. on October 18, 1991, Fountain Valley Police Officer Raymond Rakitis was on patrol near the Fountain Valley Comp USAstore whenheheard a gunshot. (45 RT 7922-7925.) Officer Rakitis blacked out the lights on his patrol car and made a U-turn into the parking lot ofthe store. (45 RT 7925-7928.) Officer Rakitis saw a silver BMW begin to back out of the parking lot while Ervin ran towardthe car from the direction ofan open loading doorin the back ofthe store. (45 RT 7928-7931.) When Ervin reachedthecar, he tried first to climb in the driver’s window andthen ran aroundto try to open the passenger door. (45 RT 7931-7933.) The BMW stoppedbacking up and drove eastboundat a high speed and Ervin then ran across the parking lot to the west towards the freeway. (45 RT 7933-7935.) Officer Rakitis had already exited his patrol car and yelled at Ervin to stop or he would send his police dog, Anno. (45 RT 7935-7936.) Annoran toward Ervin, who then laid down on the groundin a proneposition. (45 RT 7936-7937.) Officer Rakitis approached Ervin with his gun drawn and, as soon as he took control of Anno, radioed for backup. (45 RT 7937-7940.) AsOfficer Rakitis did so, he noticed a womanlying on her back, blood pooling underher head, by a Volvo station wagon parkedat the loading dock. (45 RT _ 7940-7942.) The woman, Kathy Lee, had cometo pick up her son Peter from work. (47 RT 8342-8344, 8357.) An autopsy later determined that Lee died as the result of a single gunshot woundto the head,fired while the weapon was directly touching her skin behind herleft ear. (47 RT 8412-8420.) 5 Anotherofficer, Sergeant Griswold,arrived at the parking lot about 30 secondslater and handcuffed Ervin. (45 RT 7939-7940.) Sergeant Griswold searched Ervin and recovered a two-inch, blue-steel .38 revolver from the left inside pocketofhis suit coat. (45 RT 7942-7943.) The cylinderofthe revolver contained one spent cartridge casing and some human tissue. (47 RT 8377-8380, 8390-8391, 8400-8401.) Ballistic testing later determinedthat the bullet recovered from the head of Kathy Lee during her autopsy was fired by the revolver found on Ervin’s person. (47 RT 8384, 8387-8395.) Gunshot residue wasalso found on the gloves Ervin woreatthe time of his arrest. (47 RT 8381-8383, 8402-8404.) Doehr and Nydam later identified Ervin as the man whohad held them at gunpoint. (47 RT 8310; 48 RT 8539.) After arresting the manin the parkinglot, the officers sent Anno inside the Comp USAstore to search for other suspects. (45 RT 7943-7944.) Anno alerted on the restroom doorandthe officers found the three store employees handcuffed in the handicappedstall in the men’s room (Nydam, Doehr, and Lee). (45 RT 7944-7945; 47 RT 8309, 8327-8328, 8349; 48 RT 8538-8539.) The officers also found a janitor who locked himself in an office upstairs. (45 RT 7944; 56 RT 9730.) The following Monday, Weaverspoke to Wilsonat basketball practice about the Comp USAincident. Wilson told him that nothing happened and not to worry about it. (46 RT 8073-8074.) Although Eric Clark called Weaver’s parents’ house a numberoftimesafter the Comp USAincident, the two did not speak and Clark quit the basketball team about a week later. (46 RT 8074-8080.) About a week later, Weavertold his girlfriend, Tina Jones, about the incident at the Comp USA. (46 RT 8069, 8080-8082; 48 RT 8566-8570.) On October 22, 1991, Fountain Valley Police Lieutenant Robert Mosley was getting his hair cut when he noticed a U-Haul parked nearby, approximately 100 yards from the Comp USAstore. (45 RT 7992-7993, 7996-7997.) The people in the barber shop indicated that the U-Haul had been 6 parked there for several days. (45 RT 7994.) The U-Haultruck found near the Comp USAstore was identified as the same truck rented on October 3, 1991, at Clark’s request by Jeanette Moore”usinga false driver’s license Clark had obtained for her” (43 RT 7645-7646, 7649-7654, 7667-7677, 7679-7683, 7714, 7720-7721; 45 RT 7869-7897; 49 RT 8630-8632.) On October 9, 1991, a Black male who could have been Ervin had gone to the U-Haul lot in Glendale and indicated that he would need the U-Haul truck for a longer period of time. (45 RT 7890-7894, 7897-7898.) Moore moved to Arizona in 1992 or 1993 and did not see Clark again. (43 RT 7683-7684.) However, while living in Arizona in 1993, Moore received a three-way phone call from Gary Jackson and a woman who identified herselfas Nina who claimedto be Clark’s wife. (43 RT 7693-7696.) Nina askedMoore howshe and her family were doing andtold her to expect something from Western Union. (43 RT 7697-7697.) Moorelater received a $100 wire from Western Union. (43 RT 7696-7697, 7700-7702.) Moore continued to receive phonecalls from Nina, inquiring if she had received the money from Western Union and asking about her and her family. (43 RT 7698-7700, 7722.) In February 1992, the Fountain Valley Police Departmentreceived an anonymousletter implicating Weaver, Clark, and his brother Eric Clark in the Comp USA robbery and murder. (49 RT 8622-8623.) 2. Prosecution witness Jeanette Mooretestified pursuant to a grant of transactional immunity. (43 RT 7640-7643.) 3. Clark also provided Moore with credit cards in the same namethat she used to make purchases for Clark at a number of stores. (43 RT 7661-7662, 7664.) These purchases included men’s clothes and shoes and items for Clark’s girlfriend purchased from Saks Fifth Avenue and telephone book calculators and portable televisions purchased from Circuit City. (43 RT 7664-7666.) The Murder Of Ardell Williams At around 9:20 p.m., sometime in August or September of 1991, Clark called Ardell Williams*® and invited her to get something to eat. (50 RT 8739-8740.) In 1990, Williams had helped Clark steal $10,000 worth oflaptop computers from Soft Warehouse in Torrance, where she worked asa cashier. (48 RT 8585-8594; 49 RT 8613-8615.) | Clark picked Williams up outside her homein his bronze BMW and he drove herto a Del Taco restaurant near a Comp USAstore in Fountain Valley. (50 RT 8741-8747, 8756-8757.) The two got their food and began eating in Clark’s car when Williams told Clark that he did not “bring [her] out here just to eat nachos,” since there was a Del Taco around the comer from her home. (50 RT 8747-8748.) When Williams noticed the Comp USA,she asked “by any chance is this computer store going to be in the news any time soon?” Clark laughed and continued eating. (50 RT 8747.) Sometime around 10 p.m., Clark’s brother Eric and Damian Wilson, who Williams knew as Clark’s cousin Marc, pulled up in Clark’s Isuzu Trooper. (50 RT 8737-8739, 8747-8748, 8751.) Clark and his brother conversed briefly and the group watched the Comp USA approximately 500 feet away from their parked cars. (50 RT 8748, 8751-8758.) They could see people moving aroundinside the store and Eric said, “Damn,they arestill in there,” to which Clark responded that they were “probably just clocking out.” (50 RT 8752-8755.) While the group watched the store, Williams saw a numberof employeesleave the store for the evening. (50 RT 8752-8758.) The group eventually left the parking lot and drove to a nearby cul-de-sac, where they parked their cars by a U-Haul. (50 RT 8758-8761.) Clark got out of the BMW and spoke briefly to Eric and Wilson before 4, Ardell Williams’s grandjury testimony wasreadto thejury at Clark’s trial. (50 RT 8731-8796.) returning to rummage through his briefcase looking for a key. (50 RT 8761-8763.) Clark eventually found the key that he was looking for on the dashboard of the BMW andthen he left the BMW,got in the U-Haul, and movedit closer to the BMW. (50 RT 8763-8764.) After Clark moved the U-Haul, Eric and Wilson left in Eric’s Isuzu, and Clark returned tothe BMW, where he replaced the key on the dashboard. Clark and Williams drove away soon after. (50 RT 8764.) As Clark got on the freeway, Williamssaid, “Don't tell me, is this going to be your next target?” Clark smiled andsaid, “Pretty much.” (50 RT 8764-8766.) At the end of September, Clark accompanied Williams to Las Vegas, where they were both subsequently arrested and convicted for going to the Mirage Hotel andpassingstolen traveler’s checks. (50 RT 8782-8783; 51 RT 8871-8882, 8942-8947, 8963-8966; 58 RT 10052-10055.) Williams cooperated with police and the FBIin their investigation of the incident and other related bad check cases. (51 RT 8950-8963; 52 RT 9085-9101.) During her conversations with the FBI regarding the stolen traveler’s checks, Williams told FBI Special Agent Todd Holliday that “she was scared of [Clark] finding out that she was talking” because “she wasafraid of [Clark],” who she said was “violent” and “dangerous.” Williams indicated that “she believed that she would be killed if he found out that she was talking.” (52 RT 9094-9095.) About a month after accompanying Clark to the Del Taco in Fountain Valley, Williams received a phonecall at her home in Gardena from Eric Clark, asking if he could comesee her. (50 RT 8777-8778.) When he arrived, Eric asked Williams if she had talked to’ anyone about the “Las Vegas thing” because someone was “pointing the finger, Las Vegas, at [Clark]” and “they _ think [Clark] is top dog in this case.” Williams denied that she had talked to anyone. (50 RT 8779.) Eric appeared nervous during their conversation and Williams asked, “(W|hatever happened to the computer store?” He replied that “it went down 9 bad.” He said that they handcuffed a cashier and a night manager in the bathroom, but that an employee’s mother who wondered whyit was taking so long to close the store surprised him and he shother. Eric told Williams not to say anything to anyone about what he had told her. (50 RT 8780-8782.) A week and halfafter speaking to Eric, Clark called Williams. (50 RT 8789-8790.) Clark was aware that Williams had beenin jail in Las Vegas and told her that he would get her a lawyer and that he would take care of everything. (50 RT 8790-8791.) During their conversation, Williams asked what had happened to Clark’s BMW andhesaid that he had sold it because “you never know whocould have seen the two of [them]sitting eating nachos that one night” and “[h]e didn't want anybody to suspect anything.” (50 RT 8791-8793.) On December 31, 1991, after learning about the Comp USArobbery and murder from Eric, Williams contacted FBI Special Agent Todd Holliday, who she hadfirst encountered during the bad check incident in Las Vegas, and told him about Clark driving her to the Del Taco in Fountain Valley and about her subsequent conversation with Clark. (50 RT 8783-8789; 52 RT 9101-9107.) Special Agent Holliday contacted Fountain Valley police and Orange County District Attorney’s investigators to inform them that Williams claimed to have information about the Comp USA robbery and murder. (49 RT 8624-8626; 52 RT 9101-9107, 9126-9128, 9201-9202.) Based on this information, Investigator Frank Grasso called Williams on the morning ofApril 1, 1992. During this interview, Williams implicated Clark in the Comp USA robbery and murder. (14 CT 5410-5448; 49 RT 8626-8627, 8632-8637.) In August 1992, Ardell Williams’s sister Liz Fontenot used a tape _ recorder provided to her by Investigator Grasso to record collect calls she received from Clark while he was in custody in Las Vegas. (53 RT 9241, 9244-9252.) During these conversations, Clark told Fontenot that he was concerned that the authorities were trying to link him to a crime in Orange 10 County and that he believed Williams was cooperating with the police. (14 CT 5346-5408.) Clark said that the authorities knew things that only Williams knew and “it kinda shocked me”and“I kind ofput two and twotogether.” (14 CT 5356.) Clark was “shocked”that Williams “rolled over so quickly”andit made him “immediately say, never do nothing with her again.” (14 CT 5362.) Clark told Fontenotthat if Williamstestified against him it would “just kinds like wipe me out.” (14 CT 5361.) Clark told Fontenot that “the best answers [Williams] could tell them about meis I don't know.” (14 CT 5380.) Clark explained, “[y]ou're her big sister, she don't know nothing about me. Whatevershe's told them,that's it. You follow me?. .. She can I don't know ‘em to death. (14 CT 5385.) In Clark’s words, “Anything she has might of already said, she could come to court and get complete amnesia.” (14 CT 5387.) While in Orange County Jail awaiting trial for the Comp USA robbery and murder of Kathy Lee, Clark showeda trial transcript referencing Ardell Williamsto another inmate. (56 RT 9679-9683.) Clark told the inmate, “This is the womanright here that could put me away.” (56 RT 9715.) Criminal Defense Attorney John Barnett testified as an expert witness that a competent defense attorney would have communicated the information relating to William’s interviews with police and grand jury testimony provided by the prosecution as discovery to Clark. (58 RT 10018, 10035-10036.) According to Barnett, William’s interviews and grand jury testimony would be generally inadmissible attrial ifArdell Williams was unavailable as a witness because she had not been subject to cross-examination. (60 RT 10045-10046.) On March 9, 1994, Williams contacted Investigator Grasso and told him about receiving a flower delivery on February 10, at the Gardena home where she lived with her mother andsister bearing a card signed “Secret Admirer.” The flowers were delivered by a woman whoclaimedto be from a local flower shop. Williams indicated that no one had come forward to acknowledge 11 sending the flowers and she was concerned they could berelated to the case. (50 RT 8806-8808; 53 RT 9300-9310; 54 RT 9440-9447.) Investigator Grasso put together a series of photographs of women known to be associated with Clark, including Clark’s girlfriend Antoinette Yancey, and went to Williams’s home, where he showedthe photographsto Williams, her mother, and her sister. (50 RT 8808-8810.) All three identified Yanceyas the person whohad delivered the flowers. (50 RT 8812-8814; 53 RT 9308-9310; 54 RT 9447-9449.) Shortly after speaking to Investigator Grasso regarding the flower delivery, Williams was contacted on the phone by someonecalling herselfJanet Jackson, who had spoken by phoneseveraltimes to William’s mother and who wasinterested in having Williamsinterview for ajob at Continental Receiving at 6:30 am. on Sunday, March 13, 1994. (53 RT 9314-9321; 54 RT 9449-9470.) Williams went to the job interview sometime after 6:00 a.m. on the morning ofMarch 13. (54 RT 9471-9472.) At 8:00 a.m., William’s body was discoverednearhercar in the driveway of Continental Receiving in Gardena, about a two-minute drive from her home. (54 RT 9513-9521; 55 RT 9550.) Williams had a gunshot woundbehindherleft ear. (55 RT 9548-9549; 56 RT 9752-9754.) A .25 caliber cartridge casing and a numberofjob application forms were found near Williams’s body and $114 in cash and jewelry was found on her person. (54 RT 9521-9526.) Yanceyvisited Clark at the Orange County Jail on the morning ofMarch 13, 1994. Thevisit began at 8:45 a.m. and endedat 9:35 a.m. (60 RT 10155.) Accordingto Investigator Grasso, it took 37 minutes to drive from Continental Receiving to the Orange County Jail observing the speed limit. (59 RT 10100.) On March 17, 1994, police searched Antoinette Yancey’s apartment. (55 RT 9552.) During the search police found a California driver’s license with Yancey’spicture on it in the name ofKeia Thomasand a resumewith the name 12 Keia Thomas. (55 RT 9556-9558.) Police also found a Western Unionreceipt for $100, sent to Jeanette Alexander from Nina Howard on December27, 1993. (55 RT 9558.) Police found an incometax return and receipts in Clark’s name and a receipt in Eric Clark’s name. (55 RT 9558-9559.) There wasalso file marked “Billy” and numerousletters from Clark to Yancey in the apartment. (55 RT 9565-9581.) In a voice lineup, Williams’s mother andsister identified Antoinette Yancey’s voice as being that ofJanet Jackson. (54 RT 9409-9412, 9499-9502; 55 RT 9586-9591.) Williams’s mother andsister also identified Yancey ina photo lineup as the person who had delivered the flowers to Williams. (55 RT 9591-9594.) Yancey’s fingerprints were also found on the box the flowers were delivered in. (57 RT 9951.) Yancey’s phone recordsfor the period ofJanuary through March 1994 indicated numerouscalls to Clark’s attorney, his investigator, a pay phonein the Orange County Jail accessible to Clark, and to Ardell Williams’s home. (60 RT 10156-10157.) After her arrest, Yancey spoketo a friend on the phoneandtold him that she had been arrested because she had delivered flowers to someone who waslater found murdered. (56 RT 9636-9637.) Defense Evidence Clark’s defense focused on attacking the credibility of Ardell Williams and analibi for the time of the Comp USArobbery and murder. As regards Ardell Williams, neuropsychologist Satanand Sharma indicated that she had seen Williamsin herclinic four times. (61 RT 10271.) Sharmastated that, during these visits, Williams told her that she had gone to ‘dinner with an ex-boyfriend namedBill and that after dinner they had stopped to rob a computer store in Fullerton and shot a clerk. Williams indicated that she waspresent during the robbery. (61 RT 10272-10273.) 13 The loss prevention officer at the Disney Stores in Torrance also described an employee theft investigation at the store that resulted in Ardell Williams’s termination in February 1994. (60 RT 10163-10169; 64 RT 10690-10691.) With respect to Clark’s alibi for the Comp USA robbery and murder, musician Geoffrey Gilstrap testified that, in October 1991, Clark was the manager of his band Full Swing and would arrange time for the group in a Glendale recording studio. (62 RT 10405-10407, 10505-10509.) On the evening of either Friday, October 18, or Friday, October 25, Gilstrap was summonedto the studio, arriving at approximately 8:30 p.m., because he was informed that the band had a recording session scheduled. Clark was at the studio and asked whythe band was not recording. Gilstrap explained that there was an ongoing pay dispute with the band’s engineer. Gilstrap left the studio about 15 to 20 minutes later. (62 RT 10410-10417, 10517-10524.) The managerofthe recording studio presented the studio’s schedule book, which indicated that Clark had bookedthe studio on October 12, 13, and 18, 1991. (62 RT 10466-10471.) However, she did not remember Clark being in the studio on October 18, 1991. (62 RT 10479.) Penalty Phase Retrial Prosecution Evidence At the penalty phaseretrial, the prosecution re-presented the guilt phase evidencerelating to both the Comp USArobbery and murder ofKathy Lee and the murder of Ardell Williams. (77 RT 13213-85; 85 RT 15256; 88 RT 16198-16210; 89 RT 16389-16397.) Defense Evidence The focus of Clark’s case in mitigation was lingering doubt as to his guilt. To this end he again attacked the credibility of a number of the 14 prosecution witnesses and presented evidenceofhis alibi. Clark also presented mitigating evidence relating to his family background, good character, and ability to be a positive influence on other inmatesin the state prison system, as well as detailing a number of head injuries he had sustained as a child and young adult and the resulting brain damage and psychological impairmentthat he exhibited. Gary Jacksontestified that he dated Jeanette Moore for about six months from 1990 to 1991. (85 RT 15282-15283.) Duringthis time, the two regularly used cocaine together and shoplifted. (85 RT 15283-15286.) On one occasion when the two were together, Moore found a wallet outside a carwash in Los Angeles. The wallet contained credit card receipts from Saks Fifth Avenue and May Companyin the name ofDena Carey. (85 RT 15286-15288.) Moore then outlined a plan to Jackson whereby she would obtain a driver’s license in Dena Carey’s nameanduse thelicense to obtain credit using the credit card receipts. (85 RT 15288-15289.) Jackson introduced Moore to Clark in May of 1991. (85 RT 15296.) Although the two never discussed anything illegal in front of Jackson, Moore did ask if she could use Clark’s address to have checks sent to her. (85 RT 15296-15302.) Jackson claimedthat one of his “dope dealers” named Ricky who was a light-complected Black man who stood approximately 5'10" and worehis hair in a gheri curl paid Moore $100 to rent the U-Haultruck in October 1991. (85 RT 15289-15291, 15309-15315.) Ricky drove a grey BMW andJackson had also seen Ricky drive a U-Haul truck. (85 RT 15291-15295.) Anthony Miller, a loss prevention officer at the Disney Stores where _ Ardell Williams had worked in 1994,testified about learning that Williams had an undisclosed prior criminal conviction and that she had been involvedin the theft of merchandise from the store, which resulted in her dismissal. (86 RT 15518-15534.) Williams’s probation officer also testified about Williams’s 15 numerousviolations ofthe conditions ofher probation. (88 RT 16116-16132.) Clark also re-presented his alibi defense from the guilt phase. (88 RT 16040-16061, 16062-16082, 16147-16198; 89 RT 16369-16376.) BobbyGrissom,a retired community activist, testified that he had known Clark for 20 years, although he had not seen him out of custody since the mid to late 1980's. He said that Clark had become involved in volunteer work throughthe activities of his mother. (86 RT 15567-15570, 15574.) Although Clark’s mother was a very demanding person, she never had problems with Clark, who would help her both with her volunteer work and with some apartments that she owned. (86 RT 15571-15572.) Clark’s father married his mother when he was 19 years old and the two were married for 10 years. (86 RT 15587-15588, 15700-15702.) Clark and his brother Jonathan were born to the couple during the marriage. (86 RT 15588-15589, 15702.) When Clark wassix or seven, he washit over the head with a champagnebottle, causing him convulsions, whichresulted in his being taken to the doctor. (86 RT 15740-15741.) Clark’s father was an alcoholic and, during the 10 years Clark’s mother and father were married, the two had numerousverbal and physical altercations. (86 RT 15590-15594, 15751-15752.) Clark’s father was also hospitalized for a month for a nervous breakdownduring this period. (86 RT 15598-15600.) The animosity between the two becameso great that Clark’s father left his mother in 1962. (86 RT 15595.) Thereafter, Clark and his brother spent weekends and summers with their father. (86 RT 15598.) During his elementary andjunior high schoolyears, Clark played sports, was fun, respectful, never aggressive and did not get into trouble. (86 RT 15632-15634, 15703, 15711, 15718, 15744, 15752-15753.) Clark continued to play basketball, playing guard and forward on his high school basketball team. (86 RT 15635, 15704, 15721.) 16 Clark’s father remarried and had two more children, Clark’s half-brothers Eric and Jason. (86 RT 15600-15602.) Clark had a good relationship with his brothers and would play basketball and tennis with them. (86 RT 15602.) Clark graduated from high school and attended UCLA,leaving college shortly before completing his bachelor’s degree. (86 RT 15603, 15637, 15723-15724.) Clark’s father moved to Fresno with his wife and two young sons and Clark moved in with them,attending Fresno State University. (86 RT 15603-15605, 15724.) Clark tripped on a lawn sprinkler and brokehisjaw and leg while playing football at Fresno State. (86 RT 15605, 15725, 15744-15745.) Clark left Fresno and returned to Los Angeles and moved into an apartment building owned by his mother. (86 RT 15606-15607, 15637-15638.) Duringthis time, Clark got married, had two children, and wasin a car accident that resulted in him being in a bodycast for six months. (86 RT 15657-15661, 15727-15728.) Clark had one daughter from his first marriage and a son and daughter from his second marriage. (86 RT 15572, 15612-15615, 15638-15639, 15652, 15658.) A second child from Clark’s first marriage died at the age of four of asphyxiation. (86 RT 15612-15613, 15668.) Clark was very good with children and wasa goodfather, always kind, compassionate, and patient. (86 RT 15573-15574, 15616, 15658-15659, 15678-15680, 15689-15690, 15689-15690.) While in Los Angeles, Clark engaged in a numberofbusiness ventures, makinglogosfor T-shirts, building clocks and putting cigarette advertisements on cars. (86 RT 15641.) Clark and his brother Jonathan also started a business venture to design and license animated characters for the 1984 Olympic Games, using $500,000 to $750,000 borrowed from his mother and aunt. (86 RT 15609-15612, 15639-15640, 15661-15662, 15681-15683, 15690-15691, 17 15704-15705, 15729-15731.) The business venture was a failure. (86 RT 15610-15611, 15642, 15662-15664, 15683, 15731.) After the failure of his business venture, Clark’s behavior changed. Clark, who had beena fun, outgoing, easy going person, became “remorseful” for losing his mother’s money and would have moresignificant “ups and downs.” (86 RT 15611-15612, 15642, 15662-1664, 15683, 15731.) Clark became evasive anddistant andthisledto his first wife seeking a divorce. (86 RT 15662-15667.) However, Clark was always polite, respectful, and never angry or violent. (86 RT 15642, 15685, 15706-15707.) Clark’s four-year-old son died soon thereafter, followed in close succession by his brother-in-law and grandmother. These deaths “really affected” Clark. (86 RT 15668-15671, 15732.) Inmate William Reynolds met Clark in late 1991 or early 1992 while incarcerated in the Orange County Jail. (86 RT 15756-15763.) Based on his 37-month acquaintance with Clark in the jail, Reynolds described him as an “older statesman . . . [w]ise, wiser, bright, someone you cantalk to.” (86 RT 15766-15767.) Clark had a mild demeanorinjail and was someone whocould relate with younger inmates and help diffuse racial tensionsin the jail. (86 RT 15767-15770.) Clark got along with everyone in the Orange County Jail, both guards and inmates. (86 RT 15770-15771.) Reynolds also explained thatit was common for inmates to write sexually explicit letters. (86 RT 15771-15779; 88 RT 16020-16026.) Twenty-one-year-old state prison inmate Thomas Yandall, who had been incarcerated with Clark in the Orange County Jail, indicated that he had entered jail with a “black heart” and hada lot of disciplinary problems, but that Clark _ had helped him to realize that he was wasting his life and encouraged him to take advantage of the educational opportunitiesin the state prison system. (88 RT 16004-16009.) As a result, Yandall attended vocational classes and 18 obtained a degree in plumbing andgot a job as a state prison inmate doing plumbing work. (88 RT 16010-16013.) State prison inmate Marcos Enriquez met Clark while the two were incarcerated together in the Orange County Jail. (89 RT 16230.) Enriquez describedthe racial problems between Black and Hispanic inmatesin the prison system and indicated that Clark was the only Black inmate he had ever gotten along with during his 16 years of incarceration. (89 RT 16224-16231.) Enriquez attributed this to Clark being “mild mannered”and “respectable.” (89 RT 16231.) Sentencing consultant Norman Moreintestified regarding the security classification system in state prison and the way in which inmatesare classified for security purposes. (89 RT 16350-16364.) Joseph Wu,the director of the Brain Imaging Center at UC Irvine, testified that he had conducted a PET scan of Clark’s brain on June 11, 1996. (87 RT 15806-15807, 15821-15822.) The scan revealed abnormalities in the Brodmanareas 9, 10, and 46 in the frontal lobes of Clark’s brain consistent with a closed head injury and demonstrating lower metabolism and a lack of function in the damaged areas. (87 RT 15836-15837.) The scan also showed damageto the caudate and putamen in the inner layers ofClark’s brain, as well as damage to the Brodmanareas 17, 18, and 19 in the back of Clark’s brain, both of which were consistent with frontal lobe damage associated with a closed head injury. (87 RT 15837-15840.) Wuopined that the abnormalities in Clark’s brain detected by the PET scan indicated that Clark had “suffered some kind ofserious blow to the head which caused somekind of severe malfunction of his frontal lobes.” (87 RT 15840, 15843-15844.) The damage observed on the PET scan wasconsistent with Clark being struck on the head with a champagnebottle at the age ofsix. (87 RT 15846-15847.) People with frontal lobe damage can be depressed and “seem to lack the ability to be able to fully understand or appreciate the 19 significance of their actions and to have impaired social judgments.” (87 RT 15844-15845.) Psychiatrist George Woods conducted a clinical assessment of Clark. (87 RT 15916-15919.) Based on this clinical assessment, Woods concluded _ that Clark had a bipolaraffective disorder.’ (87 RT 15919.) Bipolaraffective disorder is a mood disorder and affected individuals experience periods of elevated mood,are easily distracted, and lack good insight into their actions. (87 RT 16921.) The diagnosis ofbipolar affective disorder was consistent with the injuries and frontal lobe damage observed in the PET scan ofClark’sbrain. (87 RT 15937-15942.) 5. Woods explainedthat a bipolar affective disorder is also commonly referred to as manic depressive disorder. (87 RT 15919.) 20 ARGUMENT I. THE ORDERDENYING CLARKTELEPHONE ACCESS FROM THE ORANGE COUNTY JAIL DID NOT VIOLATE HIS SIXTH AMENDMENT RIGHT TO COUNSEL Clark contends that a March 23, 1994, order denying Clark accessto the jail telephone” (I Municipal Court (MC) RT 3-7, 11, 15; 1 Municipal Court (MC) CT5) prevented him from communicating with his counsel, investigator, and potential witnesses in the case, thereby violating his rights to counsel and to prepare his defense under the Sixth Amendment and California law. (AOB 26-32.) This claim is without merit, as Clark forfeited the issue on appealand, regardless, the order denying him telephone access was reasonably related to legitimate penologicalinterests. First, Clark’s counsel expressly waived any objection to the order denying him telephone access. A criminal defendant’s counsel “has general authority to control the procedural aspects ofthelitigation and, indeed, to bind the client in these matters.” (Jn re Horton (1991) 54 Cal.3d 82, 94.) At an April 15, 1994, hearing regarding the order, Clark’s counsel expressly declined to challengeit, indicating that he could “deal with [Clark] on that issue at the preliminary hearing.” (I MCRT 41.) As the order only restricted the procedure by which communication between Clark and counsel could occur, and not the frequency or content of that communication, this was simply an issue of pretrial procedure to which Clark’s counsel expressly 6. On March 17, 1995, the court modified the order to allow Clark to haveprivate telephonecalls with his attorney and investigator from 3:00 to 6:00 p.m., Monday through Friday, so long as a deputy dialed the number. (1 CT 192, 198.) 21 acquiesced on his behalf. Accordingly, Clark has forfeited any challenge to the original order based on his counsel’s statements at the April 15, 1994,hearing. However, even assuming the claim is properly before this Court, the order did not violate Clark’s Sixth Amendment rights. Although the Sixth Amendment guaranteesa criminal defendantthe right to communicate privately with counsel, correctional authorities may implement reasonablerestrictions on contacts between attorney and client pursuant to Penal Code section 2600, which provides that a prisoner may be deprived of certain rights where “reasonablyrelated to legitimate penological interests.” ” (Pen. Code, § 2600; Small v. Superior Court (2000) 79 Cal.App.4th 1000, 1010-1011, citing Turner v. Safley (1987) 482 U.S. 78 [107 S.Ct. 2254, 96 L.Ed.2d 64].) A trial court’s order relating to the deprivation of a prisoner’s rights under Penal Code section 2600 is reviewed for an abuse ofdiscretion. (Seeid. at p. 1014.) Thetrial court cannot exercise its discretion arbitrarily, but “‘ “must be groundedin reasonedjudgmentand guidedbylegal principles andpolicies appropriate to the particular matter at issue.’ ” (/bid.) Whenconsidering whethera deprivation ofa prisoner’s rights is proper under Penal Codesection 2600, a reviewing court should consider such factors as: (1) whether there is a “‘valid, rational connection’ between the prison[restriction] and the legitimate governmentalinterest put forward to justify it”; (2) whether there are alternative means of exercising the right; (3) how the accommodation ofthe asserted right will impact 7. Although Penal Codesection 2600 refers to persons sentenced to state prison, this Court has previously held that the section is equally applicable to those in pretrial detention. (De Lancie v. Superior Court (1982) 31 Cal.3d 865, 872, superceded bystatute on other groundsas recognized in People v. Loyd (2002) 27 Cal.4th 997, 999.) 22 guards, other inmates and the allocation of prison resources; and (4) whether the restriction is an “‘exaggerated response’” to prison concems. [Citation.] 999 (Small v. Superior Court, supra, at p. 1011.) Each of these factors supports the trial court’s order denying Clark telephone access. As the prosecutor explained to the trial court when seeking the order, Clark was being prosecuted for the murder ofArdell Williams, who wasto be a key witness against him in the Comp USA murdercase. Clark was a prisoner in the Orange County Jail at the time of Williams’s murder and the evidence indicated that Clark and Yancey had plotted the murder during his incarceration and had usedthejail telephones to do so. The order wasessential for witness safety. (I MCRT 4-5.) The United States Supreme Court has recognized public safety and institutional security as a legitimate penological interest. (Turner v. Safley, supra, 482 U.S. at p. 91.) Here, the government’s interest in protecting the lives of other witnesses and preventing the Orange County Jail telephone system from being used to arrange additional murders of witnesses was rationally related to, and directly served by, the order prohibiting Clark from using the jail telephones. Alternative means were available to Clark to communicate with his attorney, investigators, and potential witnesses. The order only restricted Clark’s telephone access. He wasstill able to communicate in person, through visitations at the jail, and in writing. Based on Clark’s counsel’s statementsat the April 15, 1994, hearing, any restriction on the method of Clark communicating with his defense team was not insurmountable. (I MCRT41.) Indeed, Clark made no further complaint about the order until almost a year later. (1 CT 184-190.) Finally, restriction of Clark’s telephone access was a wholly proportionate responseto his use ofthe telephone system to arrange Williams’s 23 murder. Theorderleft him with multiple avenues ofcommunication available and placed norestriction on the frequency or content ofthose communications. It merely required that those communications occur in the more easily supervised arenasofthe jail visitation area andjail mail system. This was no infringementor deprivation of Clark’s Sixth Amendmentright to counsel. Nonetheless, even assumingthe order was improper, Clark suffered no discernable prejudice and any error was harmless. Generally, a violation of a defendant’s Sixth Amendmentrights will not result in reversal where the error complained of was harmless beyond a reasonable doubt. (See e.g. Rose v. Clark (1986) 478 U.S. 570, 577-579 [106 S.Ct. 3101, 92 L.Ed.2d 460]; U.S.v. Morrison (1981) 449 U.S. 361, 365 [101 S.Ct. 665, 66 L.Ed.2d 564]; Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705].) There is absolutely no discernable prejudice apparent from the record. Although Clark alleges that the order interfered with his ability to assist his counsel and investigators in preparing for trial (AOB 28-31; 1 CT 187-190), the record does not substantiate this allegation. Clark contends that it was necessary for him to be able to contact potential witnesses in orderto facilitate communications betweenthose individuals and his defense team andthat this wasparticularly essential where manyofthe witnesses belongedto a different ethnic group than Clark’s counsel and investigators. However, he fails to identify a single instance where his defense was hindered by his supposed inability to communicate with potential witnesses, counsel, or his investigators by telephone. Clark’s access to potential witnesses and his defense team through jail visitations and mail was unhindered. Indeed, his counsel’s statements at the April 15, 1994, hearing suggest this arrangement wasentirely adequate. (I MCRT 41.) There is simply nothingin the recordto indicate that the order denying telephone access had anyeffect on the ultimate outcome of the case. Accordingly, in the absence of any prejudice andin light of the 24 overwhelming evidence of his guilt, any error was harmless beyond a reasonable doubt. (See Chapmanv. California, supra, 386 U.S.at p. 24.) Il. THE PRELIMINARY HEARING WAS PROPERLY CONTINUED TO MAINTAIN JOINDER Clark contendsthat the preliminary hearing was improperly continued over his objection and without good cause. (AOB 33-36.) However, the magistrate properly found that good cause existed to continue the preliminary hearing as to co-defendant Yancey and, under Penal Code section 1050.1, a continuance as to Clark was therefore proper to maintain joinder.® Penal Code section 859b provides that a criminal defendant has a night to a preliminary hearing within 10 court days ofthe arraignmentorplea, unless the parties waive this right or good cause to continue the preliminary hearing is found pursuant to Penal Code section 1050. (Pen. Code, § 859b; Landrum v. Superior Court (1981) 30 Cal.3d 1, 6.) A trial court has broad discretion to determine whether good causejustifies a continuance under Penal Codesection 1050 and that determination will not be disturbed absent a showingthatthe trial court abusedits discretion. (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) Clark does not contendthat co-defendant Yancey’s request for additional time to review the large amount of discovery recently provided by the prosecution in order to prepare for the preliminary hearing did not constitute good cause under Penal Code section 1050. (AOQB 33; I MCRT 67-68.) Indeed, trial court considering a request for a continuance may not exercise its discretion in a mannerthat deprives a criminal defendantor their counsel a 8. Clark’s case wasjoined to that ofco-defendant Yancey until a motion to severthe trials was granted on November29, 1995, well after the preliminary hearing was completed. (8 RT 1850-1860.) 25 reasonable opportunity to prepare a defense. (People v. Snow (2003) 30 Cal.4th 43, 70.) Penal Codesection 1050.1 provides that where two or more defendants are charged in the same complaint and the magistrate finds good cause to continue the preliminary hearing as to one defendant, “the continuanceshall... constitute good cause to continue the remaining defendants’ cases so as to maintain joinder.” (Pen. Code, § 1050.1; see Tapia v. Superior Court (1991) 53 Cal.3d 282, 299; see also In re Samano (1995) 31 Cal.App.4th 984, 990-993.) Here, the court found good cause to continue the preliminary hearing as to co-defendant Yanceyandthis finding, in turn, established good cause to continue the preliminary hearing as to Clark for purposes of maintaining joinder. (I MCRT 71.) No abuseof discretion occurred. (See Jn re Samano, supra, at pp. 990-993.) However, even assuming Clark could establish a violation of his statutory right to a speedy preliminary hearing under Penal Codesection 859b, he fails to demonstrate the requisite prejudice necessary on appeal. Asthis Court explained in People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529, irregularities in the preliminary examination procedures which are not jurisdictional in the fundamental sense shall be reviewed underthe appropriate standard ofprejudicial error and shall require reversal only if defendant can show that he was deprivedofa fair trial or otherwise suffered prejudiceas a result ofthe errorat the preliminary examination. (See also People v. Stewart (2004) 33 Cal.4th 425, 461-462.) Denial of statutory speedy trial rights is one such issue requiring a showingofprejudice on appeal. (See People v. Pompa-Ortiz, supra, 27 Cal.3d at p. 529, citing People v. Wilson (1963) 60 Cal.2d 139.) Asthe erroralleged is one of state law, Clark must demonstrate that, after an examination of the entire cause, it is reasonably probable that he would have obtained a more favorable result but for the error. (See People v. Watson (1956) 46 Cal.2d 818, 836.) 26 Clark utterly fails to identify any possible prejudice that resulted from the magistrate’s continuanceofthe preliminary hearing. (AOB 33-36.) There is nothing in the record to indicate that either he was disadvantagedby,or the prosecution gained some advantage from,the delay in the preliminary hearing. During the lengthy preliminary hearing, the prosecution presented ample evidenceto establish probable cause that Clark committed the charged offenses and hefails to identify any evidence of guilt the prosecution would have been unableto present had the preliminary hearing been held earlier. Clark waslater tried by a jury and found guilty of the charges by the higher standard of proof beyond a reasonable doubt. Accordingly, it is not reasonably probable that Clark would have obtained a more favorable result had the magistrate not continuedthe preliminary hearing. (See People y. Wilson, supra, 60 Cal.2d at p. 154; People v. Watson, supra, 46 Cal.2d at p. 836.) Tit. CLARK’S TRIAL IN ORANGE COUNTY FORARDELL WILLIAMS’S MURDER DID NOT VIOLATE HIS VENUE AND VICINAGE RIGHTS BECAUSE HE PERFORMED PREPARATORY ACTS IN ORANGE COUNTY AND ORANGE COUNTY BORE A REASONABLE RELATIONSHIP TO THE MURDER Clark contends that venue and vicinage in Orange County was improper as to the murder ofArdell Williams because that crime occurred in Los Angeles County and there was no evidence of preparatory acts occurring in Orange County. (AOB 37-43.) However, venue and vicinage in Orange County were proper because substantial evidence established that a numberof preparatory acts occurred in Orange County and there was a reasonable relationship between Orange County and Ardell Williams’s murder. 27 Under Penal Codesection 790,” the proper venue for a murdertriallies in the county where the fatal injury was inflicted, where the victim died, or wherethe victim’s body was discovered. Under Penal Code section 781, venue is also proper in the county where the defendant made preparations for the crime. (People v. Price (1991) 1 Cal.4th 324, 385.) In reviewing a challenge to a venue determination, an appellate court must consider whether the jury” could reasonably have concluded by a preponderance ofthe evidence, based onall the evidence presented, that venue was proper. (People v. Posey (2004) 32 Cal.4th 193, 220.) In thiscase, the tnal court properly denied Clark’s challenge to venue in Orange County. (6 CT 2092-2097; 14 RT 2859.) The evidenceclearly established numerousvisits and telephone conversations between Yancey and Clark in the Orange County Jail in the months immediately prior to Williams’s murder and the jury could reasonably have concludedthat it was duringthis time that the two planned for Yancey to lure Williams to her death. (60 RT 10157-10158, 10873.) These preparatory acts, performed by Clark at the Orange County Jail, justified his trial in Orange County for the murder of Ardell Williams. (See People v. Posey, supra, 32 Cal.4th at p. 221 [defendant’s multiple phonecalls to Marin County from San Francisco County to negotiate drug transaction sufficient to justify venue in Marin under § 781 even though drug transaction occurred in San Francisco].) 9. Clark’s contention that the vicinage clause of the Sixth Amendment were incorporated and applied to the states by the Fourteenth Amendment (AOB37-38) has been rejected by this Court. (Price v. Superior Court (2001) 25 Cal.4th 1046, 1065, 1069.) 10. This Court, in Posey, rejected the long-standing rule that venue is a question of fact to be resolved bythe jury in favor of the new rule thatit is a question of law for the judge. (People v. Posey, supra, 32 Cal.4th at p. 215.) However, the new rule is only to be applied to those cases brought after the decision in Posey. (Ibid.) 28 The evidence similarly supports the trial court’s finding that trial in Orange County for Williams’s murder did not violate Clark’s vicinagerights. Asthis Court observed, the vicinage right implied in article IJ, section 16 of the California Constitution [citation], constitutes simply the right of an accused to a trial by an impartial jury drawn from a place bearing some reasonable relationship to the crime in question. [Citation.] (Ud. at p. 222.) In this case, the Orange County Jail is where Clark and Yancey planned Williams’s murder and Orange County bears a more than reasonable relationship to her murder. Accordingly, being tried by a jury drawn from the residents ofOrange County did not violate Clark’s vicinage rights. (See Jd. at p. 223.) Iv. THE TRIAL COURT PROPERLY DENIED CLARK’S MOTION TO RECUSE THE ORANGE COUNTY DISTRICT ATTORNEY’S OFFICE BECAUSE THERE WASNO EVIDENCE OF ANY CONFLICT Clark contends that the trial court improperly denied his motion to recuse the Orange County District Attorney’s Office because of its emotional involvement with Ardell Williams, who wasto testify in the Comp USAcase, andthe conflict that this relationship created was disqualifying. (AOB 44-55.) However, the evidence did not support the existence ofany conflict andthetrial court's denial of the motion was well within the boundsofits discretion. Penal Code section 1424, subdivision (a)(1) sets forth the standard for a motion to disqualify the prosecutor. Such a motion will only be granted ce 6~ where the evidence ‘showsa conflict of interest that would renderit unlikely that the defendant would receive a fair trial.’ ”’ (People v. Snow, supra, 30 Cal.4th at p. 86.) The statute requires a two-pronged showing,that: 1) there is 29 a conflict ofinterest and, 2) the conflict is so severe as to disqualify the district attorney from acting as prosecutor on the case. (/bid.) A conflict of interest exists whenever the circumstances demonstrate “ * “a reasonable possibility that the DA’s office will not exercise its discretionary function in an evenhanded manner.” ’ ” (/bid.) However, the existence of a conflict of interest alone is insufficient to justify recusal. The eo 6 66.conflict must be so grave as to renderit unlikely that the defendant will receive fair treatment” during all portions of the criminal proceedings.’ ” (People v. Snow, supra, 30 Cal.4th at p. 86.) A trial court’s ruling on a motion to recuse the district attorney is reviewed for an abuse of discretion and any underlying findings of fact are reviewed for substantial evidence. (People v. Green (2004) 33 Cal.4th 536, 570.) A hearing washeld on Clark’s recusal motion in which he alleged that the Orange County District Attorney’s Office had a conflict because Ardell Williams was to be a witness in the Comp USAcase andthedistrict attorney wastherefore emotionally involved with Williams and unableto treat Clark in a fair and evenhanded manner based on the belief that he had arranged her murderto preventher from testifying. (I MCRT 92-129.) Thetrial court,after considering all of the evidence presented at the hearing, found that there was no evidence “to show any unusually close relationship” between Williams and any deputy district attorney or attorneys to support the existence of a conflict, especially since the prosecutor who wasoriginally trying the Comp USA case wasnot the same person who wasnowtrying the consolidated Comp USA and Ardell Williams cases. (I MCRT 130-131; see People v. Hamilton (1988) 46 _ Cal.3d 123, 141 [recusalofentire district attorney’s office “drastic step” where “Tpjublic confidence could be maintained with less extreme measures”’].) Thetrial court’s denial ofthe recusal motion was a properexercise ofits discretion. There was no evidence to suggest that Ardell Williams had any 30 connection to anyonein the District Attorney’s Office other than as a witness in the Comp USA case. Although Clark alleges that a number of decisions made bythe District Attorney’s Office relating to his prosecution, such as the decision to prosecute the Ardell Williams case in Orange County, suggest some sort ofvindictiveness onthat office’s part towards him (AOB 45-46, 52-54), the trial court did not accept this interpretation of events as evidence ofa conflict. The evidenceindicated that Clark had conspired with Antoinette Yancey to murder Ardell Williams, who was a witness in an Orange County murder prosecution. The vigorous prosecution ofClark for that crime, which was also an attempt to subvert the administration of justice in Orange County in the Comp USA case, wasentirely consonant with the Orange County District Attorney’s responsibility to do justice and hislegal and ethical obligations to the people ofthe community he waselected to serve. Asthetrial court noted, any prosecutor would have acted accordingly. (I MCRT 130.) There was simply no evidence to suggest that a conflict existed or that the district attorney exercised its prosecutorial discretion in an improper mannerandthetrial court properly denied the recusal motion. V. ALLEGING BOTH MURDER IN THE COURSE OF ROBBERY AND MURDER IN THE COURSE OF BURGLARYSPECIAL CIRCUMSTANCESAS TO THE MURDER OF KATHY LEE BASED ON THE SAME COURSE OF CONDUCT OF BURGLARIZING AND ROBBING THE COMPUSA STORE DID NOT VIOLATE THE EIGHTH AMENDMENT Clark contends that it violated the Eighth Amendmentto allege both “murder in the course of robbery (Pen. Code, § 190.2, subd. (a)(17)(A)) and murderin the course ofburglary (Pen. Code, § 190.2, subd. (a)(17)(G)) special circumstances as to the murder of Kathy Lee based on the same course of 31 conductof burglarizing and robbing the Comp USAstore. (AOB 56-59.) However, this Court rejected the identical argument in People v. Melton (1988) 44 Cal.3d 713, 765-769. Asthis Court explained, it is constitutionally legitimate for the state to determine that a death-eligible murderer is more culpable, and thus more deserving of death, ifhe not only robbed the victim but committed an additional and separate felonious act, burglary, in order to facilitate the robbery and murder. Robbery involves an assaultive invasion ofpersonalintegrity; burglary a separate invasion of the sanctity of the home. Society may deem the violation ofeach of these distinct interests separately relevant to the seriousness ofa capital crime. (id. at p. 767.) . Accordingly, Clark’s claim should berejected. VIL CLARK’S MOTION TO SUPPRESS EVIDENCE SEIZED IN HIS JAIL CELL WAS PROPERLY DENIED BECAUSE HE HAD NO EXPECTATIONOF PRIVACY Clark contends that a July 7, 1994, search of his cell in the Orange County Jail and seizure of two “kites’/” found there violated his Fourth Amendmentrights. (AOB 60-73.) However, because Clark had no expectation ofprivacyin his jail cell, no Fourth Amendmentviolation occurred andthetrial court properly denied his motion to suppress evidence. In consideringa trial court’s denial of a motion to suppress evidence,a reviewing court viewsthe record in the light most favorable to thetrial court’s ruling, deferring to those express or implied factual findings supported by substantial evidence, and then independently reviews the trial court’s 11. At the hearing on Clark’s motion to suppress evidence, the corrections deputy who searched Clark’scell explained that “kite” is a term for an unauthorized communication between jail inmates, such as the two documents seized in Clark’s cell. (5 RT 1432-1433.) 32 ‘application of the law to the facts. (People v. Davis (2005) 36 Cal.4th 510, 528-529.) Under the California Constitution, challenges to police searches and seizures are reviewed underfederal constitutional standards. (People v. Woods (1999) 21 Cal.4th 668, 674.) This Court in People v. Davis, supra, 36 Cal.4th at 524-529, applied the United States Supreme Court’s rulings in Bell v. Wolfish (1979) 441 U.S. 520 [99 S.Ct. 1861, 60 L-Ed.2d 447] and Hudson v. Palmer (1984) 468 U.S. 517 [104 S.Ct. 3194, 82 L.Ed.2d 393] and held that pretrial detainees have no expectation ofprivacy under the Fourth Amendment. Without an expectation of privacy, jail inmates’ cells may be searched for any reason without implicating the Fourth Amendment. (See People v. Davis, supra, 36 Cal.4th at pp. 526-527.) Clark moved to suppress the evidence seized from his jail cell, arguing that the search and seizure violated his Fourth Amendment rights. (2 CT 418-423.) After hearing the testimonyofthe corrections deputy who searched Clark’s cell and seized the two kites, the trial court denied Clark’s motion to suppress evidence, concludingthat the deputy seized the kites pursuantto jail policy prohibiting unauthorized communications between inmates and therefore did not violate Clark’s Fourth Amendment rights. (5 RT 1409-1421, 1432-1468, 1480-1481.) While the trial court was certainly correct in determining, based on the deputy’s testimony, that seizure of the kites was appropriate under jail regulations, the deputy’s purpose in doing so waslegally irrelevant for purposes of the Fourth Amendment. Since Clark had no legally cognizable expectation of privacy in his cell, the search ofthe cell and seizure of the kites simply did not implicate his Fourth Amendmentrights. (See People v. Davis, supra, 36 Cal.4th at pp. 526-527.) Therefore, Clark’s motion to suppress evidence was properly denied. . 33 VII. THE PRETRIAL IDENTIFICATION PROCEDURE BY WHICH MATTHEW WEAVER IDENTIFIED CLARK WAS NOT UNDULY SUGGESTIVE AND HIS SUBSEQUENT IN-COURT IDENTIFICATION OF CLARK WAS PROPER UNDER THE TOTALITY OF THE CIRCUMSTANCES Clark, whois African-American, contendsthat the photographic lineup shown to Matthew Weaver was unduly suggestive because Clark’s photo was included in a six-pack with photos of five non-African-Americans and that Weaver’s subsequentin-court identification of Clark was irreparably tainted. (AOB 74-87.) However,the pretrial identification procedure, which involved showing Weaver three six-packs containing photos of 12 other African-Americans, was not unduly suggestive and, regardless, Weaver’s subsequentin-court identification of Clark was proper underthetotality of the circumstances. A criminal defendant has the burden of demonstrating that an identification procedure is unreliable. (People v. Cunningham (2001) 25 Cal.4th 926, 989; People v. Ochoa (1988) 19 Cal.4th 353, 412.) A trial court’s ruling thata pretrial identification procedure is not unduly suggestive involves a mixed question oflaw andfact that is independently reviewed by an appellate court, although the tral court’s determination ofhistorical facts is afforded deference. (People v. Kennedy (2005) 36 Cal.4th 595, 608-609.) In deciding whether admission of identification evidence violates a defendant’s right to due process, a reviewing court determines: (1) whetherthe identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable underthetotality ofthe circumstances, taking into account such factors as the opportunity of the witness to view the suspectat the time ofthe offense, the witness’s degree ofattentionat the time of the offense, the accuracy ofhis or her prior description of the suspect, the level of certainty demonstrated at the time of the 34 identification, and the lapse of time between the offense and the identification. (People v. Cunningham, supra, 25 Cal.4th at p. 989.) “ “Tf, and only if, the answerto the first question is yes and the answer 3099to the secondis not,is the identification constitutionally unreliable.’ (People v. Ochoa, supra, 19 Cal.4th at p. 412.) To determine whether a procedure is unduly suggestive, this Court determines whether anything caused the defendantto stand out from the others in a way to suggest the witness should select him. (People v. Yeoman (2003) 31 Cal.4th 93, 124.) A procedure which suggests in advanceofidentification by the witness the identity of the person suspected by the police is unfair. (People v. Ochoa, supra, 19 Cal.4th at p. 413.) Clark moved to suppress the evidence of Matthew Weaver’s pretrial identification of Clark, arguing that including his photo in a six-pack with photographsoffive non-African-American men was unduly suggestive. (2 CT 425-434.) At the hearing on the motion, Investigator Frank Grassotestified at length about Weaver’s identification of Clark in a photographic lineup on August 17, 1992. (13 RT 2616-2639.) After reviewing the transcript of the interview between Investigator Grasso and Weaver, Investigator Grasso's testimony, and the three six-packs of photographs shown to Weaver,thetrial court concludedthat the identification procedure was not unduly suggestive and denied the motion. (14 RT 2750-2754.) In doingso,the trial court notedthat,“on the surface . . . a six-pack with one Black man and five White men sounded outrageous.” (14 RT 2751.) However, whenall 18 of the photographs shown to Weaverare considered in their entirety, “that impression is destroyed.” (14 RT 2751.) Of the 18 photographs shown to Weaver by Investigator Grasso, 12 were “obviously African-American in physical characteristics.” (14 RT 2752.) Further, the 35 court noted Clark’s “racial characteristics are not outstandingly apparent.” (14 RT 2752.) Nothingin this identification procedure unfairly suggested Clark was a suspect in the Comp USA robbery and murder. Weaver was shown three six-packs containing a total of 18 photographs. (13 RT 2630-2631, 2634-2635.) Investigator Grasso did nothing to draw particularattention to the six-pack containing Clark’s photograph as opposedto the others. Investigator Grassodid not discuss Clark’s race or racial characteristics with Weaverprior to showing him the photo lineup and read a standard admonishmentto him. (13 RT 2629-2630.) The particular composition of the six-pack containing Clark’s photograph did not render this procedure unfair. “There is no requirementthat a defendantin a lineup,either in person or by photo, be surroundedby others nearly identical in appearance.” (People v. Brandon (1995) 32 Cal.App.4th 1033, 1052.) Indeed, simply because a suspect’s photograph is much more distinguishable from the others in the lineup dose not render the lineup unconstitutional. (/bid.) Although the trial court noted “slight shades of variation” in the background color of the photographsin the lineup (14 RT 2753), minor differences in image size or background color do not render a photographic lineup impermissibly suggestive. (People v. Johnson (1992) 3 Cal.4th 1183, 1217.) However, even assuming that the trial court improperly concludedthat the photographic lineup wasnot unduly suggestive, the in-court identification wasnonethelessreliable underthe totality ofthe circumstances. As this Court has observed, “there must be a ‘substantial likelihood of irreparable ¢ 66 6 3999 9misidentification’ under the totality of the circumstances to warrant reversal of a conviction on this ground.” (People v. Cunningham, supra, 25 Cal.4th at p. 990, citing Manson v. Brathwaite (1977) 432 U.S. 98, 104-107 [97 S.Ct. 2243, 53 L.Ed.2d 140].) 36 At the time of the Comp USArobbery and murder, Matthew Weaver had played on the same college basketball team with Clark’s brother for approximately three months. (45 RT 8006.) After driving to Fountain Valley with Clark’s brother in the U-Haul van, Weaver wasintroduced to Clark by name. (45 RT 8018-8029; 46 RT 8047.) After the introduction, Clark spoke directly to Weaver. (46 RT 8048.) Weaverthen got into the front passenger seat of Clark’s BMW,with Clark seated next to him in the driver’s seat, and drove toward the Comp USA store across the parking lot. (46 RT 8049-8055.) After finding Kathy Lee’s body outside the Comp USAstore and fleeing the scene with Clark, Weaver spent anotherfive to fifteen minutes in the car with Clark before finally being dropped off at the car dealership. (46 RT 8055-8062.) Asthe facts indicate, Weaver had a meaningful opportunity to closely observe Clark both outside the Del Taco restaurant and in the BMW and even interacted with him throughout the episode. Although some time lapsed between the Comp USArobbery and murder on October 18, 1991, and Weaver coming forward and ultimately identifying Clark in the photo lineup on August 17, 1992, Weaver never indicated any difficulty in remembering the events surrounding the Comp USArobbery and murder despite the lapse of time. Finally, Weaver was admonished before being shownthe three photo six-packs and merely asked if he recognized anyone. (13 RT 2630, 2745-2746.) There is simply nolikelihood that, underthe totality of the circumstances, Weaver misidentified Clark as the person he wasintroducedto as Eric Clark’s brother at the Del Tacorestaurant and the driver of the BMW at the Comp USAstore and Weaver’s identification of Clark was properly admitted. (See People v. Cunningham,supra, 25 Cal.4th at p. 990.) 37 VII. THE TRIAL COURT PROPERLY DENIED CLARK’S SEVERANCE MOTION BECAUSE THE STATUTORY REQUIREMENTS FOR JOINDER WERE SATISFIED AND CLARK FAILED TO MEET HIS BURDEN OF ESTABLISHING PREJUDICE RESULTING FROM THE JOINDER OF THE CHARGES Clark contends thatthe trial court improperly denied his motion to sever the counts relating to the Comp USA robbery and murder from the counts involving the Ardell Williams murder. (AOB 88-102.) However, thetrial court properly denied Clark’s motion because the statutory requirements for joinder were Satisfied and Clark failed to meet his burden of establishing prejudice resulting from the joinder of the charges. “The law prefers consolidation of charges.” (People v. Ochoa, supra, 26 Cal.4th at p. 423.) “Joinder and severance of different criminal charges against the same defendant are governed by [Penal Code] section 954.” (People v. Maury (2003) 30 Cal.4th 342, 391.)Joinder is proper under section 954 where the offenses are of the same class or connected together in their commission. (People v. Ochoa, supra, 26 Cal.Ath at p. 423; People v. Johnson (1988) 47 Cal.3d 576, 587.) This determination is reviewed 12. Penal Code section 954 provides, in pertinentpart: An accusatory pleading may charge two or more different offenses connected together in their commission... or two or more different offenses of the same class of crimes or offenses, underseparate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated . . . provided, that the court in which a case is triable, in the interests of justice and for good cause shown, mayin its discretion order that the different offenses or countsset forth in the accusatory pleading betried separately or divided into two or more groups and each ofsaid groupstried separately. 38 independently as a “pure question of law.” (People v. Alvarez (1996) 14 Cal.4th 155, 188.) Whenthe statutory requirements for joinder are met, a defendant can predicate error only upon a clear showing of potential prejudice. (/bid.) “« “The determination ofprejudice is necessarily dependent uponthe particular circumstances in each individual case.” ’” (People v. Bradford (1997) 15 Cal.4th 1229, 1315.) A trial court’s decision as to whether separatetrials are required in the interests ofjustice is reviewed for an abuse of discretion. (People v. Alvarez, supra, 14 Cal.4th at p. 188.) The trial court’s discretion in refusing severance is broaderthan its discretion in admitting evidence of uncharged offenses. In weighing probative value against prejudicial effect, the beneficial results from a jointtrial are considered when assessing probative-value, which requires a defendant to make an even greater showing ofprejudice than would be required in determining whether to admit other-crimes evidence in a severedtrial. (People v. Balderas (1985) 41 Cal.3d 155, 173; see also People v. Cummings (1993) 4 Cal.4th 1233, 1284 [‘The state’s interest in joinder gives the court broader discretion in ruling on a motion for severance thanit has in ruling on admissibility of evidence.”’].) An abuse of discretion may only be found when the trial court's ruling falls outside the bounds of reason. (People v. Ochoa, supra, 26 Cal.Ath at p. 423.) This Court has developed criteria to guide evaluationsoftrial court decisions. “* “Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separatetrials; (2) certain ofthe charges are unusually likely to inflame the jury against the defendant; (3) a ‘weak’ case has been joined with a ‘strong’ case, or with another ‘weak’case,so that the ‘spillover’ effect of aggregate evidence on several charges might well alter the outcome 39 of someorall ofthe charges; and (4) any oneofthe chargescarries the death penalty orjoinder ofthem turns the matter into a capital case.” ’” (People v. Ochoa, supra, 26 Cal.4th at p. 423.) However, the criteria “are not equally significant.” (People v. Bradford, supra, 15 Cal.4th at p. 1315.) After considering Clark’s motion to sever the Comp USAcounts from the Ardell Williams counts and the prosecution’s opposition, which were submitted without argumentfrom either party, the trial court denied the motion. (2 CT 436-446; 6 CT 2316-2324; 14 RT 2911-2913.) This was a proper exercise of the trial court’s discretion. All seven counts arising from the Comp USArobbery and murder and the Ardell Williams murder were properlyjoined under Penal Code section 954 becauseall seven charges were connected in their commission and involved the sameclass of offenses. (See People v. Jenkins, supra, 22 Cal.4th at p. 947 [murder and conspiracy to commit murder belong to sameclass of crimes]; People v. Musselwhite (1998) 17 Cal.4th 1216, 1243 [murder and robbery]; People v. Johnson, supra, 47 Cal.3dat p. 587 [murder, robbery, and burglary].) Thus, joinder was proper unless Clark carried his burden to make a clear showingofpotential prejudice, which hefailed to do. (See People v. Bradford, supra, 15 Cal.4th at p. 1315.) Thefirst step in assessing a defendant’s claim of prejudicial joinder is to determine cross-admissibility because if evidence of the joined offenses would be cross-admissible in separate trials, “any inference of prejudice is dispelled.” (People v. Bradford, supra, at pp. 1315-1316; see also Peoplev. Kraft (2000) 23 Cal.4th 978, 1030.) However, although cross-admissibility suffices to negate prejudice, the absence of cross-admissibility is not sufficient _ to demonstrate prejudice. (Evid. Code, § 954.1; People v. Stitely (2005) 35 Cal.4th 514, 532-533.) Evidence relating to the Comp USA robbery and murder was cross-admissible as to Ardell Williams’s murder and vice versa. Pursuant to 40 Evidence Code section 1101, subdivision (b), evidence of a prior crime is admissible “when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity. . .) other than his or her disposition to commit such an act.” Here, Ardell Williams’s grandjury testimonydirectly implicated Clark as the mastermind ofthe Comp USA robbery and murder. (50 RT 8731-8793.) It was the potential impact of Ardell Williams testifying at Clark’s trial that established Clark’s motive to murder Williams to prevent her from testifying. Evidence relating to the Comp USA robbery and murder was therefore both cross-admissible and essential to establish Clark’s motive to murder Williams under Evidence Codesection 1101, subdivision (b). (See People v. Stitely, supra, 35 Cal.4th at p. 532 [evidence that defendant killed a rape victim to prevent her from reporting crime as another rape victim had done cross-admissible to show motive].) Because the evidence of the Comp USA crimes and the Ardell Williams murder was cross-admissible, no prejudice may be inferred. (See People v. Bradford, supra, 15 Cal.4th at pp. 1315-1316.) | Despite the ample showingofcross-admissibility, it is also the case that because the charges were properlyjoined underthe statute, even had there been no cross-admissibility, consolidation was proper because Clark failed to establish prejudice. (People v. Bradford, supra, 15 Cal.4th at p. 1317.) Both the Comp USA crimes and the Ardell Williams murder were “strong” cases and neither was unusually likely to inflame the passions of the jury against Clark. Both Kathy Lee and Ardell Williams suffered single gunshot woundsto the head and neither murder wassubstantially more grizzly or brutal than the other. (47 RT 8412-8420; 53 RT 9314-9321; 54 RT — 9449-9470.) Although Clark’s murder ofArdell Williams to prevent her from testifying in the Comp USA case wascertainly insidious, it was no more inflammatory than the senseless and essentially random killing of Kathy Lee outside the Comp USA store while her teenage son wasinside. In both 41 circumstances, ample evidence established that Clark planned and set into motion the events that resulted in both murders. Neither murder was more inflammatory than the other soas to create prejudice throughtheirjoinder. (See People v. Ochoa, supra, 26 Cal.4th at p. 424; People v. Musslewhite, supra, 17 Cal.4th at pp. 1244-1245.) Further, both the Comp USAcrimes and the Ardell Williams murder involved capital crimes in their own right and joinder did not affect the charging of the multiple special circumstances. (7 CT 2470; see People v. Sandoval(1992) 4 Cal.4th 155, 173.) Similarly, Clark’s vague contention that joinder prevented him from testifying in his own defenseas to one crime while remaining silent as to the other is unavailing. As this Court has noted, The need for severance does not arise... “ ‘ until the defendant makes a convincing showing that he has both important testimony to give concerning one count andstrong need to refrain from testifying on the other.’ ” [Citations.] (Id. at p. 174.) Clark madeno such showingin thetrial court and has similarly failed to do so here. (2 CT 436-446; AOB 100-102.) Accordingly, Clark’s claim that joinder of the Comp USAcrimes with the Ardell Williams murder was improper mustfail. IX. CLARK EXPRESSLY ABANDONEDHIS MOTION TO DISCOVER THE PROSECUTION’S STANDARDS FOR CHARGING SPECIAL CIRCUMSTANCES AND, REGARDLESS, HIS DISCOVERY MOTION WAS WITHOUT MERIT Clark contends that it was improper for the prosecution not to provide _ discovery regarding the Orange County District Attorney’s Office’s standards and practices in charging special circumstances in cases since November7, 1978, in order for him to investigate the possibility of “purposeful, invidious prosecutorial discrimination.” (AOB 103-112.) Clark fails to acknowledgethat 42 his counsel expressly abandoned the discovery request upon the severance of Clark’s trial from that of co-defendant Yancey and, regardless, Clark made no facial showing of discrimination in the prosecution’s charging decisions to justify his wide-ranging and onerous discovery motion. First, Clark’s counsel expressly abandoned the discovery request upon the severance of Clark’strial from that of co-defendant Yancey. As discussed in ArgumentI, ante, a criminal defendant’s counsel “has general authority to control the procedural aspects ofthelitigation and, indeed,to bindthe client in these matters.” (in re Horton, supra, 54 Cal.3d at p. 94.) At a November6, 1995, hearing on Clark’s discovery request, the trial court asked Clark’s counsel, “{I]f these defendants are severed, for example, then would you even be asking for this discovery?” Clark’s counsel responded, “No. (2 RT 896.) Ata November29, 1995, hearing,after the trial court granted a motion to sever Clark’s trial from that of co-defendant Yancey, the court again asked Clark’s counsel abouthis request to “discover the prosecution's standards for charging special circumstances.” Clark’s counsel replied, Since there is now a severance, the purpose of that motion is no longer present because you’re not going to have two defendants facing the same jury with comparison between the two. So we will not be asking for, they do not have to supply or we would not be requesting discovery ofall of their other casesor litigating that motion. (8 RT 1868.) Accordingly, Clark’s counsel expressly abandonedhis discovery motion, relieving the trial court of any obligation to rule on its merits. Even if Clark had not abandoned the motion, it would not have entitled him to discovery becauseit was without merit. As the prosecutor notedin his opposition, Clark’s discovery requests amounted to an incredibly onerous and burdensomefishing expedition for evidence ofdiscrimination, absent anyfacial showing that such discrimination waspresentin the prosecutor’s charging 43 decision. (6 CT 2104-2118.) As this Court explained in upholdinga trial court’s denial of a similar discovery motion, Although a defendant seeking discovery is “not required to meet the standard of proof requisite to the dismissal of a discriminatory prosecution”[citation], discovery is not a fishing expedition. A motion for discovery must ““describe the requested information with at least some degree of specificity and . . . be sustained by plausible justification.’ ” [Citation]. (People v. McPeters (1992) 2 Cal.4th 1148, 1171.) In his first discovery request, Clark sought: 1. The case name and numberofeach case prosecuted by the Office of the District Attorney in which special circumstances werealleged pursuant to Penal Code section 190.2 as amended November7, 1978. 2. The case name and numberofeach case prosecuted by the Office of the District Attorney in which the defendant was charged with homicide and the underlying facts ofthe homicide established probable cause to believe that one or more of the special circumstances enumerated in Penal Codesection 190.2 wasapplicable, but no such special circumstances were charged. 3. The policy and procedures in the Office of the District Attorney since November7, 1978, to the present with respect to the charging of special circumstances within Penal Codesection 190.2. The race and ethnic background of each victim and defendant mentioned in 1 and 2, above. (2 CT 559-561.) Later, in a supplemental discovery motion, Clark expandedhis search to include: 1) The namesofall cases which proceededtotrial and penalty as capital cases since 1978. 2) The charging documents including all the special circumstance allegations. 3) The prosecutor’s statement in aggravation. 44 4) Any andall prior convictions suffered by the capital defendants which were introducedas evidence during the guilt and penalty phase. (5 CT 1643-1646.) Tojustify his discovery request, Clark offered the declaration ofhis tral counsel, who indicated that he was “informedand believe[d]” that race was a factor in the decision to charge special circumstancesandthat other participants in the Comp USAcrimes, three of whom were Black and one White, while equally culpable, were not subjected to the death penalty. (2 CT 562-563.) As in McPeters, Clark here “showed no morethan the barest form of x99 ‘apparent disparity,’ ”and this was insufficient to justify his wide-ranging discovery request. (See People v. McPeters, supra, 2 Cal.4th at p. 1171.) Further, the majority of the information he sought, such as previously tried cases and documentsfiled in court, was in the public domain and could just as easily have been obtained by the defense. Internal information available only to the District Attorney’s Office was provided by the prosecutor, who wasalso the chairman of the special circumstances committee in the Orange County District Attorney’s Office, and who voluntarily explained the internal protocol followed bythe District Attorney’s Office in charging special circumstancesat the hearing on the discovery motion, as well as offering somestatistical information regarding death penalty prosecutions in Orange County. (2 RT 898-904.) The prosecutor, in the spirit of cooperation, provided Clark with far more information than he waslegally entitled to, based onthe utterly deficient showing of any discrimination on the part of the prosecution and Clark’s motion was without merit. (See bid.) 45 X. JEANETTE MOORE’S TESTIMONY REGARDING HER RECEIPT OF A THREATENING LETTER AND NEWSPAPER CLIPPING IN COUNTY JAIL WAS PROPERLY ADMITTED AT THE PRELIMINARY HEARING BECAUSE HER STATE OF MIND WAS RELEVANT TO THE ISSUE OF HER CREDIBILITY Clark contends thatthe trial court improperly admitted evidenceat the preliminary hearing regarding Jeanette Moore’s receiptin jail of a threatening letter and newspaper clipping because Moore’s state of mind wasirrelevant. (AOB 113-116.) While Clark failed to press for a ruling on his objection at the preliminary hearing and therefore forfeited the claim on appeal, the evidence was nonetheless properly admitted because Moore’s state ofmind wasrelevant to the issue of her credibility. Preliminarily, although Clark made a relevance objection to Moore’s preliminary hearing testimony regarding the threatening letter and newspaper clipping she received in county jail, the trial court, at Clark’s request, took the . matter under submission and never madea ruling on the objection. (I MCRT 213-214.) Clark’s failure to press for a ruling on the objection forfeits the claim on appeal. (See People v. Morris (1991) 53 Cal.3d 152, 190, overruled on other grounds, People v. Stansbury (1995) 9 Cal.4th 824, 830,fn. 1.) Nonetheless, Moore’s testimony about the threatening letter and newspaperclipping was properly admitted. Under the Evidence Code, only relevant evidence is admissible. (Evid. Code, § 350; People v. Cunningham, supra, 25 Cal.4th at p. 995.) Relevant evidenceis defined as, evidence, including evidence relevantto the credibility of a witness. . ., having any tendencyin reason to prove or disprove any disputed fact that is of consequenceto the determination ofthe action. (Evid. Code, § 210; People v. Cunningham, supra, 25 Cal.4th at p. 995.) A trial court has broad discretion to determine the relevance of evidence and its exercise of discretion “is not grounds for reversal unless ‘ “the court 46 exercised its discretion in an arbitrary, capricious or patently absurd mannerthat resulted in a manifest miscarriage ofjustice.” ’ [Citations.|” (People v. Ochoa, supra, 26 Cal.4th at pp. 437-438; see also People v. Cunningham, supra, 25 Cal.4th at p. 995.) At the conclusion of her direct examinationat the preliminary hearing, the prosecutor asked Jeanette Moore about “a very uncomfortable letter” she received while in the Orange County Jail. The prosecutor explained that the evidence wasbeing offered to establish the “state ofmind ofthe witnessat this time.” Clark objected to this evidence on grounds of “either foundation or relevance.” (I MCRT 213.) Moore then proceeded to identify the letter (People’s Preliminary Hearing Exh.8) as the one she receivedatthejail without further objection. (I MCRT 214.) Contrary to Clark’s assertion, Moore’s state of mind wasrelevant to establish her credibility. Credibility of a witness is expressly included in the statutory definition ofrelevant evidence. (Evid. Code, § 210.) Evidence Code section 785 provides that a witness’s credibility may be “supported by any party, including the party calling [her].” Byestablishing that Moore wasafraid ofClark andoftestifying against him (I MCRT 213), the prosecution sought to demonstrate that Moore was credible and had no reason to fabricate her testimony. The fact that Moore had been threatened also made the substance of her testimony more credible. As this Court has held, evidence that a witnessis afraid to testify or fears retaliation for testifying is relevant to credibility and admissible. The basis for the fearis likewise relevant to credibility and a trial court is within its discretion in admitting such evidence. (People v. Gray (2005) 37 Cal.4th 168, 220.) Therefore, Moore’s state of mind wasdirectly relevant and the trial court properly admitted her testimony at the preliminary hearing. (See People v. Cunningham,supra, 25 Cal.4th at p. 1022 [testimony ofwitness that he did not 47 wish to be housed near defendantfor fear ofretaliation relevant to “demonstrate that the witness was credible and would not be motivatedto lie”). Nonetheless, even assuming Moore’stestimony regarding the threat was irrelevant, Clark’s claim fails for want ofa showingofprejudice. As discussed in ArgumentII, ante, irregularities at the preliminary hearing require reversal only ifthe defendant“can show that he was deprived ofa fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination.” (People v. Pompa-Ortiz, supra, 27 Cal.3d at p. 529.) Error in the “application of ordinary rules of evidence” is reviewed underthe harmless error standard articulated in People v. Watson, supra, 46 Cal.2d at 836, and will only result in reversal where it is reasonably probable that the defendant would have received a more favorable outcome had the challenged evidence not been admitted. (People v. Harris (2005) 37 Cal.4th 310, 336.) Here, Moore’s testimony regarding the letter and newspaperclipping she received in jail was certainly not an integral part ofthe case against Clark. As discussed in ArgumentII, ante, the prosecution presented ample evidence during the lengthy preliminary hearing to establish probable cause that Clark committed the charged offenses, irrespective of Moore’s testimony aboutthe letter. Clark waslatertried by a jury and found guilty of the charges by the higher standard of proof beyond a reasonable doubt. Accordingly, it is not reasonably probable that Clark would have obtained a more favorable result had evidenceofthe letter and newspaperclipping not been admitted and any error was harmless. (See People v. Watson, supra, 46 Cal.2dat p. 836.) 48 XI. ERIC CLARK’S STATEMENT TO MATTHEWWEAVER THAT HE WOULD BE PAID $100 TO HELP MOVE COMPUTERS FROM CLARK’S COMPUTER STORE WAS PROPERLYADMITTED AT THE PRELIMINARY HEARING AS NON-HEARSAY AND, IN ANY EVENT, THE ADMISSION OF A CO-CONSPIRATOR EXCEPTION TO THE HEARSAY RULE WAS SATISFIED Clark contendsthat the trial court improperly admitted evidenceat the preliminary hearing regarding Eric Clark’s statements to Matthew Weaverthat Clark owned a computer store and Weaver would be paid $100 to help move computers from the store. (AOB 117-124.) While Clark failed to press for a ruling on his objection at the preliminary hearing and therefore forfeited the claim on appeal, the evidence was nonetheless properly admitted for the non-hearsay purpose of establishing the existence of a conspiracy and as a Statement of a conspirator. First, although Clark made a hearsay objection to Eric Clark’s statements to Weaver about paying him $100 to help move computers at his brother’s store, the trial court merely took the matter under submission and never made a ruling on the objection. (II MCRT 496.) Clark’s failure to press for a ruling on the objection forfeits the claim on appeal. (See People v. Morris, supra, 53 Cal.3d at p. 190, overruled on other grounds, People v. Stansbury, supra, 9 Cal.4th at p. 830, fn. 1.) Even assumingthe issue was properly preserved for appeal, Eric Clark’s statement to Weaver requesting his help moving computers at his brother's store for $100 was properly admitted. Evidence Codesection 1200, subdivision (a) defines hearsay as an out-of-court statement offered to prove the truth of the matter asserted. (People v. Crew (2003) 31 Cal.4th 822, 841.) Hearsay statements are inadmissible unless an exception to the hearsay rule applies. (Evid. Code, § 1200, subd. (b); People v. Hardy (1992) 2 Cal.4th 86, 139.) 49 While the prosecution argued that Eric Clark’s statement was being offered under Evidence Code section 1223 as a statement of a conspirator(II MCRT 496), the statement was admissible for the non-hearsay purpose of demonstrating the existence of a conspiracy between Clark,his brother Eric and others to rob the Comp USAstore. (See People v. Noguera (1992) 4 Cal.4th 599, 624-625.) Thetruth of Eric Clark’s statement,i.e. that Weaver would be paid $100 to help move computers from Clark’s computer store, was of no importance to the prosecution’s case. Indeed, the statement was patently untrue. The computerstore and the computersin it did not belong to Clark and Weaver was never paid $100. The importance of the statement wasnotits truth, but instead, the fact that it was madeat all. It demonstrated Eric Clark’s role in helping Clark engineer the robbery of the Comp USA,by securing Weaver's assistance to remove the proceeds of the robbery from the scene. It also demonstrated Clark’s efforts to conceal the group’s true purposein robbing the Comp USAstore from Weaver, which would both prevent him from going to the authorities and from sharing in the proceeds of the crime. Yet, even assuming that Eric Clark’s statement to Weaver was offered for its truth, it was admissible under Evidence Code section 1223 as an exception to the hearsay rule. A trial court’s admission of evidence under a hearsay exception is reviewed for an abuse ofdiscretion. (People v. Martinez (2000) 22 Cal.4th 106, 120.) A trial court similarly has broad discretion in determining whether the proponent of evidence has established the necessary foundational requirements for the application of a hearsay exception. (/bid.) Thetrial court’s ruling on admissibility “implies whatever finding offactis prerequisite thereto; a separate or formal finding is, with exceptions not applicable here, unnecessary. [Citation.]” [Citation.] (/bid.) Under Evidence Codesection 1223, hearsay statements are admissible if the proponent of the evidence “presents ‘independent evidence to establish 50 999prima facie the existence of . . . [a] conspiracy. Cal.4th at p. 139.) (People v. Hardy, supra, 2 Once independent proof of a conspiracy has been shown,three preliminary facts must be established: “(1) that the declarant was participating in a conspiracyat the time of the declaration; (2) that the declaration was in furtherance of the objective of that conspiracy; and (3) that at the time of the declaration the party against whom the evidence is offered was participating or would later participate in the conspiracy.” (Jbid.) The prosecution had already amply demonstrated the existence of a conspiracy to rob the Comp USAstore at the preliminary hearing prior to Weaver’stestimony regarding the statement made by Eric Clark about moving computers and Eric Clark’s involvementin that conspiracy. Jeanette Moore had alreadytestified about Clark helping her to obtain a fraudulent driver’s license and using that driver’s license to rent the U-Haultruck used in the robbery.‘(I MCRT185-196, 205.) She identified Eric Clark as the person who drove her to the U-Haulrental facility on October 3, 1991, provided her with the false driver’s license Clark had helped her obtain and a phone numberto use on the rental application, gave her the moneyto pay forthe rental, and drove the truck away. (I MCRT196-203 .) Moore then returned the false driver’s license to Eric Clark when the transaction was completed. (I MCRT 204-205.) Officer Rakitis then testified about hearing the gunshot at the Comp USAstore, seeing Clark’s BMW drive awayfrom the scene, finding Kathy Lee’s body andarresting Ervin with a .38 handgunin his pocket, and finding the Comp USA employees handcuffed in the men’s room. (III MCRT 435-454.) Based on this evidence, which had already been presented at the preliminary hearing prior to Weaver’s testimony,the trial court could properly conclude that the prosecution had metits burden of establishing prima facie evidence that a conspiracy to rob the Comp USAexisted, that both Clark and 51 his brother were involved in the conspiracy, and that Eric Clark wasacting in furtherance of the conspiracy when he asked Weaverto help move computers from Clark’s computer store. Accordingly, Eric Clark’s statement was also admissible for its truth under Evidence Code section 1223. (See Jbid.) Nonetheless, even assuming Eric Clark’s statement to Weaver about moving computers from Clark’s store was improperly admitted, Clark’s claim fails for want of a showing of prejudice. As discussed in ArgumentII, ante, irregularities at the preliminary require reversal only ifthe defendant “can show that he was deprived offair trial or otherwise suffered prejudice as a result of the error at the preliminary examination.” (People v. Pompa-Ortiz, supra, 27 Cal.3d at p. 529.) Error in the “application of ordinary rules of evidence”is reviewed underthe harmless error standard articulated in People v. Watson, supra, 46 Cal.2d at 836, and will only result in reversal whereit is reasonably probablethat the defendant would havereceived a more favorable outcome had the challenged evidence not been admitted. (People v. Harris, supra, 37 Cal.4th at p. 336.) As discussed above, Eric Clark’s statement to Weaver was really not importantforits truth, i.e. that Clark owned the computer store and would pay $100 for help moving computers, but rather as evidence of a conspiracy to rob the Comp USA. Asdiscussed in ArgumentII, ante, the prosecution presented ample evidence during the lengthy preliminary hearing to establish probable cause that Clark committed the charged offenses. Clark was later tried by ajury and found guilty of the charges by the higher standard of proof beyond a reasonable doubt. Accordingly,it is not reasonably probable that Clark would have obtained a more favorable result had Eric Clark’s statement to Weavernot been admitted and any error was harmless. (See People v. Watson, supra, 46 Cal.2d at p. 836.) 52 XII. THE TRIAL COURT’S EXCLUSION OF EVIDENCE AT THE PRELIMINARY HEARING OF LIZ FONTENOT’S KNOWLEDGE REGARDING ARDELL WILLIAMS’S PRIOR CONVICTIONS DID NOT VIOLATE THE CONFRONTATION CLAUSE Clark contends that his rights under the Confrontation Clause were violated when the trial court at the preliminary hearing sustained the prosecution’s relevance and Evidence Codesection 352 objections to Clark’s questioning ofArdell Williams’ssister, Liz Fontenot, regarding her knowledge ofWilliams’s involvementin previous computerstore thefts. (AOB 125-133.) While Clark failed to challenge the ruling on Confrontation Clause groundsat the preliminary hearing and therefore forfeited the claim on appeal, thetrial court’s exclusion of evidence of Liz Fontenot’s knowledge of hersister’s involvementin prior computerstore thefts was proper. Clark has forfeited his claim on appeal byfailing to challenge thetrial court’s ruling on Confrontation Clause groundsat the preliminary hearing. Failure to assert the Confrontation Clause as grounds for challenging an evidentiary ruling in the trial court waives the issue on appeal. (People v. Burgener (2003) 29 Cal.4th 833, 869.) Here, although Clark made an offer of proofas to the relevance of the proffered testimony of Liz Fontenot, he never mentioned the Confrontation Clause in challenging the trial court’s ruling. Accordingly, his claim is forfeited. In any event, the trial court properly excluded the evidence and did not violate Clark’s right of confrontation. The Confrontation Clause permits a criminal defendant to engagein, appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby, ‘to expose to the jury the 53 facts from whichjurors . .. could appropriately draw inferencesrelating to the reliability of the witness.’ (People v. Frye (1998) 18 Cal.4th 894, 946, quoting Delaware v. Van Arsdall (1986) 475 U.S. 673, 680 [106 S.Ct. 1431, 89 L.Ed.2d 674].) However, trial courts nonetheless have “wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance” without implicating a defendant’s confrontation nights. (People yv. Frye, supra, 18 Cal.4th at p. 946.) In order to establish a Confrontation Clause violation, a defendant must “show that the prohibited cross-examination would have produced ‘a significantly different impression of [the witnesses'] credibility.’”” (Zbid.) This, Clark cannot do. During his preliminary hearing cross-examination of Liz Fontenot, Clark’s counsel askedher, “You didn't know yoursister had been convicted of crimes, from stealing from computer stores?” The prosecutor objected on grounds of relevance and the trial court sustained the objection. (V MCRT 1035-1036.) Clark then made an offer of proof that Fontenot’s knowledge of her sister’s prior convictions was relevantto her credibility because she would not be “so nonchalant” regarding Williams’s involvement in the Comp USA crimes, as he believed she appeared in her tape recorded conversations with Clark,ifshe knew ofWilliams’s history of similar criminal activity. (V MCRT 1036-1038.) The prosecution responded that Fontentot’s knowledge of Williams’s prior convictions was a collateral matter and should be excluded onrelevance and Evidence Code section 352 grounds. (V MCRT 1038-1039.) The trial court sustained the objection. (V MCRT 1039.) | While Clark contends the prosecution introduced Fontenot’s testimony for the purpose of “shor[ing] up the credibility of Ardell Williams,” and that therefore the evidence ofFontenot’s knowledge ofWilliams’s prior convictions 54 was relevant to attack her testimony as to Williams’s good character (AOB 128), this contention is not borne out by the record. The prosecution introduced Fontenot’s testimony for the purpose of laying a foundation for the tape recorded conversation between Clark and Fontenot in which Clark expressed his suspicions regarding Williams’s cooperation with the police. (IV MCRT 908-917; V MCRT 942-956.) The prosecution neverelicited any testimony from Fontenotat the preliminary hearing regarding Williams’s character. Clark, on cross-examination, did ask Fontenot if she was alarmed that Williams may “have gotten into somedeepstuffor in over her head,” to which she replied that, “I never thought that she could be involved in anything.” (V MCRT1034.) Fontenot then clarified that she did not “think she would be involved with anyone getting shot or anything close to it.” (V MCRT 1035.) Fontenot’s knowledge regarding Williams’s prior theft convictions would have had no bearing onhercredibility in asserting her opinion that Williams would not have been involvedin a shooting incident, as Williams had nohistory of violent criminal conduct of the sort involved here, and the testimony Clark sought to elicit was therefore irrelevant. Accordingly, as the challenged testimony would not have produced significantly different impression of either Fontenot’s or Williams’s credibility, the trial court’s application ofstate law evidentiary rules to exclude this testimony did not implicate the Confrontation Clause. (See People v. Frye, supra, 18 Cal.4th at p. 946.) Nonetheless, even assumingthe trial court should have permitted Clark to question Fontenot regarding her knowledge ofWilliams’s prior convictions, Clark’s claim fails for want of a showing of prejudice. As discussed in ArgumentII, ante, irregularities at the preliminary hearing require reversal only if the defendant “can show that he was deprivedofa fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination.” (People v. Pompa-Ortiz, supra, 27 Cal.3d at p. 529.) “[T]he constitutionally improperdenial ofa defendant's opportunity to impeach a witnessfor bias, like 55 other Confrontation Clause errors, is subject to Chapman harmless-error analysis”andwill only result in reversal where theerror is not harmless beyond a reasonable doubt. (Delaware v. Van Arsdall, supra, 475 U.S.at p. 684.) In considering the prejudice ofsuch a violation, a reviewing court should consider several factors, including, the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony ofthe witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case. (Ibid.) These factors all support the conclusion that anyerror in not permitting Clark to question Fontenot regarding her knowledge of Williams’s prior convictions was harmless beyond a reasonable doubt. As discussed above,the prosecution merely used Fontenot’s testimony to establish the foundation for Clark’s tape recorded statements. The court at the preliminary hearinglistened to the tape ofthose statements. (IV MCRT 916-917.) Accordingly, Fontenot’s personal knowledge of Ardell Williams’s prior convictions, which werelater explored in their own rightat trial in great detail (50 RT 8782-8783; 51 RT 8963-8966; 60 RT 10156), wasoflittle independent relevance. Further, Clark had considerable opportunity to cross-examine Fontenotat great length, both at the preliminary hearing (V MCRT 986-1011, 1017-1036, 1047-1059, 1065-1075, 1081-1092, 1115-1122), and at trial (53 RT 9265-9276; 9285-9290). Finally, as discussed in Argument II, ante, the prosecution presented ample evidence during the lengthy preliminary hearing to establish probable cause that Clark committed the charged offenses. Clark was later tried by ajury and foundguilty ofthe chargesby the higher standard ofproofbeyond a reasonable doubt. Accordingly, any error was harmless beyonda reasonable doubt. (See Delaware v. Van Arsdall, supra, 475 U.S.at p. 684.) 56 XIII. THE TRIAL COURT PROPERLY FOUND PROSECUTION WITNESS ALONZO GARRETT IN CONTEMPT FOR REFUSING TO TAKE THE OATHAT THE PRELIMINARY HEARING BECAUSE HE HAD NOT VALIDLY INVOKED THE PRIVILEGE AGAINST SELF-INCRIMINATION AND HIS SUBSEQUENT TRIAL TESTIMONY WAS NOT COERCED Clark contends that prosecution witness Alonzo Garrett had a valid claim of the privilege against self-incrimination that justified his refusal to testify at the preliminary hearing andthat thetrial court’s failure to recognize his claim of privilege, and the powerof the prosecution to seek immunity in orderto secure his testimony rendered his subsequenttrial testimony, made after being found in contempt for his failure to take the oath at the preliminary hearing, unlawfully coerced. (AOB 134-144.) Clark’s claim fails because Garrett did not invokethe privilege againstself-incrimination at the preliminary hearing and there was no lawful basis for him to refuse to take the oath. “Tt is a bedrock principle of American (and California) law, embedded in various state and federal constitutional and statutory provisions, that witnesses may not be compelled to incriminate themselves.” (People v. Seijas (2005) 36 Cal.4th 291, 304; Evid. Code, § 940.) The privilege against compulsory self-incrimination “‘must be accordedliberal construction in favor of the right it was intended to secure’” and maybeasserted by a witness who has ““reasonable cause to apprehend danger from a direct answer.’” (Ibid., quoting Hoffman v. United States (1951) 341 U.S. 479, 486 [71 S.Ct. 814, 95 L.Ed. 1118].) A witness’s assertion that answering a question put to him would result in self-incrimination is insufficient. (People v. Seijas, supra, 36 Cal.4th at p. 304.) When a witness claimsthe privilege, it is the witness’s burden to show “that the proffered evidence might tend to incriminate him.” (Evid. Code, § 57 404; People v. Seijas, supra, 36 Cal.4th at p. 305.) A court may deny the assertion of the privilege where it is “ ‘ “ ‘perfectly clear, from a careful consideration ofall the circumstancesin the case, that the witness is mistaken, and that the answer[s] cannotpossibly have such tendency’to incriminate.” ’ ” (Id. at pp. 304-305, quoting Malloy v. Hogan (1964) 378 U.S. 1, 12 [84 S.Ct. 1489, 12 L.Ed.2d 653] (original italics).) In reviewinga trial court’s determination as to the availability of the privilege, an appellate court defers to the trial court’s factual findings, but independently reviewsthetrial court's legal conclusions.’ (People v. Seijas, supra, 36 Cal.4th at p. 304.) Clark’s claim that Alonzo Garrett had a Fifth Amendmentprivilege not to testify at the preliminary hearing fails at the outset because Garrett never asserted any Fifth Amendment privilege. The privilege against self-incrimination is personal and mayonly be asserted by the holder of the privilege. (People v. Ford (1988) 45 Cal.3d 431, 439, citing Rogers v. United States (1951) 340 U.S. 367, 370-371 [71 S.Ct. 438, 95 L.Ed. 344].) As the United States Supreme Court notedin Rogers, ifa witness desires the protection of the privilege against self-incrimination,he is required to invokeit. (Jbid.) Atthe preliminary hearing, the prosecution called as a witness Alonzo Garrett, who wasalready serving a term instate prison for an unrelated offense and whom Clark had showntranscripts of Williams’s grand jury testimonyto while incarcerated together in the Orange County Jail. (V MCRT 967-968.) Garrett’s counsel indicated to the court that he believed Garrett had a Fifth Amendmentprivilege notto testify because his call to Ardell Williams, who 13. This Court in Seijas left open the question of whether the independent review standard, or the more deferential abuse of discretion standard, would be applicable where, as here, the witness was not a defense witness and the defendant’s confrontation rights were not implicated. (People v. Seijas, supra, 36 Cal.4th at p. 304.) However, as will be demonstrated, the trial court’s determination in this case was proper undereither standard. 58 wasa personalfriend, from jail could be interpreted as an attempt to dissuade a witness.” However, Garrett’s counsel notedthat, “I don’t know ifwe’ll ever get there becauseit’s Mr. Garrett’s desire -- he doesn’t even wantto be in the courtroom. And ifbrought into the courtroom, he asked me to inform the court that he’s not going to say a word.” (V MCRT 966, 969-970.) The court then asked if Garrett would assert a Fifth Amendment privilege, to which his counsel responded, “He told meheis not going to say a word. I’m asserting his Fifth Amendmentonhis behalf: And he told me he’s not going to say a word.” (V MCRT 970-971.) Garrett was then brought before the court, where he refused to speak. After twice instructing Garrett, in the face of his continuedsilence, to take the oath, the trial court informed him that he could be found in contempt pursuant to Penal Codesection 166, subdivision (a)(6).’ (V MCRT 975-976.) When Garrett continued to refuse to take the oath, the trial court found that he had unlawfully refused to be sworn as a witness and found him in contempt. (V MCRT978.) Garrett’s stubborn silence and refusal even to be sworn as a witness or in any wayto participate in the proceedings cannotbe considered an invocation of his privilege against self-incrimination and therefore any claim ofprivilege was waived. (See Rogers v. United States, supra, 340 U.S. at pp. 370-371.) 14. At tnial, Garrett testified that he called Williams fromjail and asked her about her involvement in the case. When Williams told him that she was a “key witnessin the case,” Garrett respondedthat“it’s not cool to be snitching on people, because anybody out there can get wind ofit.” He then asked ifshe had talked to the police about obtaining protection. (56 RT 9788-9793.) Consequently, had Garrett made an effective invocation ofthe privilege, such a claim would havefailed because his testimony was in no wayincriminating. (See People v. Seijas, supra, 36 Cal.4th at pp. 304-305.) 15. Penal Code section 166, subdivision (a)(6) provides that “[t]he contumacious and unlawful refusal of any person to be sworn as a witness” is a misdemeanor. 59 Nonetheless, even assuminghis attorney could invokethe privilege for him, he utterly failed to even attempt to meet his burden of showing“thatthe proffered evidence might tend to incriminate him.” (See Evid. Code, § 404.) Asthis Court explained, “{BJefore a claim of privilege can be sustained, the witness should be put under oath andthe party calling him be permitted to begin his interrogation. Then the witness may invokehisprivilege with regard to the specific question and the court is in a position to make the decision as to whether the answer might tend to incriminate the witness.” [Citations.] (People v. Ford, supra, 45 Cal.3d at p. 441.) As Garrett refused evento take the oath and permit the prosecutorto put any questions to him, the court was prevented from making any determination as to any possible claim of privilege with respect to Garrett’s preliminary hearing testimony. EvenifGarrett had a potentially valid claim ofprivilege,the Fifth Amendmentdoes not provide a non-party witness with carte blanche to refuse to participate in any aspect ofthe court proceedings. In order to meet his burden under Evidence Code section 404, Garrett would, at a minimum, have to have taken the oath, permitted the prosecution to question him at the preliminary hearing, andasserted the privilege as to those questions which he believed could haveresulted in self-incrimination. Thetrial court could then assess Garrett’s claim ofprivilege and rule accordingly. Garrett’s failure to do so rendered any possible claim ofprivilege ineffectual. (See People v. Ford, supra, 45 Cal.3d at p. 441.) Clark makes muchofthe discussion ofthe possible impact on Garrett’s decision to testify at the preliminary hearing from an alleged death threat in a note from Clark to Garrett in the countyjail that was intercepted by authorities. (AOB 134-139; V MCRT 921-938, 966-974.) This is ofno moment. First of all, the death threat would not provide a lawful basis for Garrett notto testify. Garrett had already been placedin protective custody at the Orange County Jail 60 prior to being called to testify at the preliminary hearing. (V MCRT 933.) Secondly, Garrett did testify at trial and explainedthat his decision notto testify at the preliminary hearing was based on his general fear of being labeled a “snitch,” and not because he wasafraid of Clark. (57 RT 9812-9813.) Clark’s threatening note therefore had no impact on Garrett’s decision to testify andit is therefore irrelevant to the issue at hand. Because Garrett made no valid claim ofprivilege, the prosecution was without power to seek immunity for Garrett under Penal Code section 1324,” and the only remaining option to secure his testimony despite his unlawful refusal to take the oath was a charge of contempt. Accordingly, the fact that Garrett testified at trial, both to get the prosecutorto “leave [him] alone”and to avoid another contempt charge (56 RT 9698), wasin responseto the entirely lawful coercive pressure ofPenal Code section 166, and no impropercoercion occurred. XIV. CLARK HAS FORFEITED HIS CLAIM THAT THE PROCEDURE BY WHICH NENA WILLIAMS IDENTIFIED ANTOINETTE YANCEY’S VOICE AS BEING THAT OF “JANET JACKSON” WAS UNDULY SUGGESTIVE AND, REGARDLESS, THE CIRCUMSTANCES SURROUNDING THE IDENTIFICATION INDICATE NO UNDUE SUGGESTIVENESS Clark contends that Nena Williams’s identification at the preliminary hearing of Antoinette Yancey’s voice as being that of “Janet Jackson,” the woman whocalled Ardell Williams and lured her to her death, was unreliable due to the unduly suggestive procedures employed by the prosecution and 16. Penal Code section 1324,the immunity statute, by its terms, applies only where “a person refuses to answera question or produce evidence ofany other kind on the ground that he or she may be incriminated thereby.” 61 violated his due process rights. (AOB 145-152.) Clark has forfeited this claim by failing to object and, in any event, Williams’s identification of Yancey’s voice wasnot the product ofan impermissibly suggestive procedure and Clark had ample opportunity to challenge the identification in court. Although Yancey’sattorney objected at the preliminary hearing to Nena Williams identifying Yancey’s voice as that of the person who had called Williams’s homeandidentified herself as “Janet” based on Yancey’s reading in court two notes written by Ardell Williams (VI MCRT 1441-1448), Clark never joined in, or otherwise objected to the admission of this evidence. Clark’s failure to join in Yancey’s objection to the procedure whereby Nena Williams identified her voice at the preliminary hearing forfeits the claim on appeal. (See People v. Sanders (1990) 51 Cal.3d 471, 508, citing Evid. Code, § 353.) However, even assuming Clark’s challenge to the procedure by which Nena Williams identified Yancey’s voice at the preliminary hearing were properly raised in the instant appeal, the claim is without merit. A criminal defendant can challenge the suggestive pretrial identification of a codefendant where other evidence links the two and admission of suggestive pretrial identification evidence would unfairly bolster the prosecution’s case against the defendant. (See People v. Sanders, supra, 51 Cal.3d at p. 508.) As discussed in Argument VII, ante, a criminal defendant has the burden of demonstrating that an identification procedureis unreliable. (People v. Cunningham,supra, 25 Cal.4th at p. 989; People v. Ochoa, supra, 19 Cal.4th at p. 412.) A trial court’s ruling that a pretrial identification procedure is not unduly suggestive involves a mixed question oflaw andfact that is independently reviewed by an _ appellate court, although the trial court’s determination of historical facts is afforded deference. (People v. Kennedy, supra, 36 Cal.4th at pp. 608-609.) 62 In deciding whether admission of identification evidence violates a defendant's right to due process, a reviewing court determines: (1) whetherthe identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable underthe totality ofthe circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the timeofthe offense, the witness’s degree ofattention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification. (People v. Cunningham, supra, 25 Cal.4th at p. 989.) “ “Tf, and only if, the answerto the first question is yes and the answer 2°99to the secondis not, is the identification constitutionally unreliable.’ (People v. Ochoa, supra, 19 Cal.4th at p. 412.) To determine whether a procedure is unduly suggestive, this Court determines whether anything caused the defendantto stand out from the others in a way to suggest the witness should select him. (People v. Yeoman, supra, 31 Cal.4th at p. 124.) A procedure which suggests in advanceofidentification by the witness the identity of the person suspected by the police is unfair. (People v. Ochoa, supra, 19 CalAth at p. 413.) Nena Williams repeatedly identified Yancey’s voice as that of Janet Jackson, the person who had called the Williams’s home and lured Ardell Williams to her death. First, Nena Williamsidentified Janet’s voice as one of four voices played to her on tapes by police. When playing the tapes, the officer merely asked if Williams recognized Janet’s voice amonganyof the four. (VI MCRT 1219-1220.) She was never advised that the voice of a defendantin the case was on anyofthe tapes or that there would be a voice she ‘recognized. Further, both Yancey’s counsel and Clark were able to cross-examine Williams at length at the preliminary hearing regarding the 63 circumstancesofheridentification. (VI MCRT 1372-1387, 1395-1400.) There wasnothing suggestive or improperin this procedure. During Yancey’s cross-examination ofWilliams, a tape prepared by the defense attorneys for both Yancey and Clark containing five voices was played for Williams. She indicated that two ofthe five voices, voices three (Yancey’s) and five, sounded familiar, but that the fifth voice sounded mostlike Janet. (VI MCRT 1286, 1386-1395, 1444.) It was only then that the prosecutor asked that Yanceyread notes written by Ardell Williams during her conversations with Janet in court in order to clarify the two earlier identifications. (VI MCRT 1441.) After Yancey read the notes in court, Williams was asked whether she recognized Yancey’s voice and Williams indicated that Yancey’s voice was that of Janet. (VI MCRT 1450-1451.) Clark, Yancey, and their respective counsels were present in court when this occurred and were able to observe and challenge any unduly suggestive aspects ofthe identification procedure. Even assumingthe identification testimony offered by Nena Williams wasnot“the mostreliable,” “ “It is part of our adversary system that we accept at trial much evidence that has strong elements of untrustworthiness - an obvious example being the testimony of witnesses with a bias. While identification testimony is significant evidence, such testimonyisstill only evidence, and, unlike the presence of counsel, is not a factor that goesto the very heart - the “integrity” - of the adversary process. “ “Counsel can both cross-examine the identification witnesses and argue in summationas to factors causing doubtsas to the accuracyofthe identification - including reference to both any suggestibility in the identification procedure and any countervailing testimony such as alibi.”” (People v. Gordon (1990) 50 Cal.3d 1223, 1243, overruled on other grounds in People v. Edwards (1991) 54 Cal.3d 787, 835, citing Manson v. Brathwaite, supra, 432 U.S. at pp. 113-114, fn. 14.) 64 Clark had ample opportunity to challenge Nena Williams’s identification of Yancey’s voice both at the preliminary hearing andat trial, and did so at length. (VI MCRT 1372-1387, 1395-1400; 53 RT 9347-9349; 54 RT 9386-9395.) No dueprocessviolation occurred. (See People v. Gordon, supra, 50 Cal.3d at p. 1243.) XV. CLARK HAS FORFEITED HIS CLAIM THAT THE PROCEDURE BY WHICH ANGELITA WILLIAMS IDENTIFIED ANTOINETTE YANCEY’S VOICE AS BEING THAT OF JANET JACKSON WAS UNDULY SUGGESTIVE AND, REGARDLESS, THE CIRCUMSTANCES SURROUNDING THE IDENTIFICATION INDICATE NO UNDUE SUGGESTIVENESS Clark raises the identical challenge as that in Argument XIV, ante, to Angelita Williams’s identification of Yancey’s voice as that of Janet Jackson at the preliminary hearing. (AOB 153-159.) For the same reasons discussedin Argument XIV, ante, Clark’s claim is forfeited based onhisfailure to object in the trial court and, in any event, Angelita Williams’s identification ofYancey’s voice (VIT MCRT 1621; VIET MCRT 1721-1739; IX MCRT 1828-1832, 1850-1854) was notthe result ofunduly suggestive identification procedures. (See People v. Sanders, supra, 51 Cal.3d at pp. 508-509.) 65 XVI. DEFENSE INVESTIGATOR ALAN CLOW’S PRELIMINARY HEARING TESTIMONY REGARDING THE DATES AND TIMES OF TWO INTERVIEWS HE CONDUCTED WITH ARDELL WILLIAMS PRIOR TO HER MURDERDID NOT INVOLVE THE DISCLOSURE OF INFORMATION PROTECTED BY EITHER THE ATTORNEY-CLIENT OR WORK PRODUCT PRIVILEGES Clark contends that the trial court improperly ordered Defense Investigator Alan Clowtotestify at the preliminary hearing regarding the dates and times of two interviews he conducted with Ardell Williams prior to her death. Clark claims this disclosure violated the attorney-client and work product privileges. (AOB 160-171.) However, Clow’s testimony was not privileged, as it did not involve a confidential communication between Clark and his attorney or disclose any writing reflecting his attorney's thought processes orStrategy. Evidence Codesection 954 creates a privilege for the non-disclosure of “a confidential communication between client and lawyer.” (2,022 Ranch, L.L.C. y. Superior Court (2003) 113 Cal.App.4th 1377, 1387.) Evidence Code section 952 defines a “confidential communication between client and lawyer” as, information transmitted between a client and his or her lawyer in the course ofthat relationship and in confidence by a means which,so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyeris consulted, and includes a legal opinion formed and the advice given by the lawyerin the course of that relationship. The party asserting the attorney-client privilege has the burden of demonstrating the applicability of the privilege. (Doe 2 v. Superior Court (2005) 132 Cal.App.4th 1504, 1522.) A trial court’s determination regarding 66 the applicability of the privilege will only be disturbed upon a showing of an abuse of discretion. (See id. at p. 1521.) Clark’s claim that his attorney-client privilege was violated when Defense Investigator Alan Clow was permitted to testify at the preliminary hearing as to the dates and times oftwo meetings he had with Ardell Williams at her homeprior to her murder (X MCRT 2098-2119; XI MCRT 2221-2224) fails because Clow did not disclose any confidential communication between Clark and his attorney, as required under Evidence Codesection 954. “(A]s is apparent onthe face ofthe code section,it is essential to a claim of privilege that there be a communication.” (Grand Lake Drive In, Inc. v. Superior Court (1960) 179 Cal.App.2d 122, 125-126.) “It is apparent that some ingredient of disclosure or revelation is essential to the element of communication.” (/d. at p. 126.) Further, the attorney-client privilege “does not protect ‘independent facts related to a communication; that a communication took place, and the time, date and participants in the communication.’ [Citation.]” (2,022 Ranch, L.L.C. v. Superior Court, supra, 113 Cal.App.4th at p. 1388.) Clark failed to demonstrate that any communication occurred between himselfand his attorney that was disclosed by Clowtestifying to the dates and times of his two meetings with Ardell Williams. Clow did not discuss what took place during his meetings with Williams, but only the fact of those meetings’ occurrence. Although Clark claimsthat this disclosure allowed the prosecution to “learn privileged details about defense efforts,” he fails to identify what details were learned. (AOB 167.) The only thing disclosed was that Clow had met twice with Williamsat her home. It revealed nothing about whether the defense intendedto call her as a witnessattrial, how it intendedto challenge her testimony, or other details of defense strategy. Further, even if such details could be gleaned from Clow’s testimonyaboutthe dates and times ofhis two meetings with Williams, this information would be ofnoutility in the 67 present prosecution because Williams had been murdered and was no longer | available as a witness or to be cross-examined. The defense strategy with regard to Williams, of necessity, had to change upon her death. Accordingly, because no communication was disclosed by Clow, Clark’s claim of attorney-client privilege fails. (See Grand Lake Drive In, Inc. v. Superior Court, supra, 179 Cal.App.2d at pp. 125-126.) Similarly, Clow’s testimony regarding the dates and times of his two interviews with Ardell Williams prior to her murder was not protected by the work product privilege. Code of Civil Procedure section 2018.030 creates a privilege against the disclosure ofthe work product ofan attorney.Underthe section, “an attorney’s ‘core’ work product, defined as ‘[a]ny writing reflecting an attorney's impressions, conclusions, opinions,or legal research or theories” is absolutely protected from disclosure andthere is a “conditional or qualified protection for ‘general’ work product, which bars discovery of other aspects of an attorney’s work productunless denial of discovery would unfairly prejudice a party or result in an injustice.” (2,022 Ranch, L.L.C. v. Superior Court, supra, 113 Cal.App.4th at p. 1390; Code Civ. Proc., § 2018.030.) However, this Court has explained, that [Penal Code] section 1054.6 expressly limits the definition of“work product”in criminalcases to “core” work product,that is, any writing reflecting “an attorney’s impressions, conclusions, opinions, or legal research or theories.” Thus, the qualified protection ofcertain materials under Code ofCivil Procedure section 2018, subdivision (b), applicable 17. Former CodeofCivil Procedure section 2018, enacted in 1987 and setting forth the work productprivilege, was repealed in 2004 and replaced by new Code of Civil Procedure sections 2018.010 to 2018.080 addressing the same subject matter. (Stats. 2004, ch. 182, §§ 22-23.) The repeal of section 2018 was intended to “facilitate nonsubstantive reorganization of the rules governing civil discovery” and the newly enacted sections are intended to restate “existing law relating to protection ofwork product” and notto “expand or reduce the extent to which work productis discoverable under existing law.” (33 Cal. Law Revision Com.Rep.(2004) 809; Code Civ. Proc., § 2018.040.) 68 in civil cases, is no longer available in criminal cases. The more recent statute limiting the definition of work productin criminal cases carves out an exception to the older work product rule applicable to civil and criminal cases alike. [Citation.] (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 382, fn. 19 (original emphasis).) As the above authorities demonstrate, the work product privilege was not implicated by Clow’s testimony regarding the dates and times of his two interviews with Ardell Williams. Clow never disclosed or made reference to any writing whentestifying to the dates and times of his two interviews with Ardell Williams. Accordingly, the work product privilege was inapplicable and Clark’s claim mustfail. (/bid.) However, even assuming Clow’s testimony was privileged and therefore improperly admitted at the preliminary hearing, any error was harmless. As discussed in ArgumentII, ante, irregularities at the preliminary require reversal only ifthe defendant “‘can show that he was deprived ofa fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination.” (People v. Pompa-Ortiz, supra, 27 Cal.3d at p. 529.) Both the attorney-client and work productprivileges are purely creations ofstate statutory law. (Gonzales v. Municipal Court (1977) 67 Cal.App.3d 111, 118 [attorney-client privilege]; Izazaga v. Superior Court, supra, 54 Cal.3d at p. 381 [work product].) They are therefore subject to state law harmless error analysis under People v. Watson, supra, 46 Cal.2d at 836, and will only result in reversal where it is reasonably probable that the defendant would have received a more favorable outcome had the challenged evidence not been admitted. (See People v. Roldan (2005) 35 Cal.4th 646, 725 [attorney-client privilege]; People v. Collie (1981) 30 Cal.3d 43, 60-61, abrogated on other groundsbystate constitutional amendmentas recognized in /zazaga v. Superior Court, supra, 54 Cal.3d at pp. 371-372 [work product].) 69 Here,it is not reasonably probable Clark would have obtained a more favorable result at the preliminary hearing had Clow nottestified as to the dates and times of his two in-person interviews with Williams. As discussed in ArgumentII, ante, the prosecution presented ample evidence during the lengthy preliminary hearing to establish probable cause that Clark committed the charged offenses, irrespective of Clow’s testimony. Clark waslater tried by a jury and found guilty of the charges by the higher standard ofproofbeyond a reasonable doubt. Accordingly,it is not reasonably probable that Clark would have obtained a more favorable result had evidence ofthe dates and timesofthe two interviews with Williams not been admitted and any error was harmless. (See People v. Watson, supra, 46 Cal.2d at p. 836.) XVII. ANTOINETTE YANCEY’S STATEMENTS MADE WHILE SHE POSED AS A FLOWER DELIVERY PERSON AND AS JANET JACKSON WERE PROPERLY ADMITTED AT TRIAL AS NON-HEARSAY AND, IN ANY EVENT, THE ADMISSION OF A CO- CONSPIRATOREXCEPTION TO THE HEARSAY RULE WASSATISFIED Clark contends that the trial court improperly admitted hearsay statements made by Yancey whenshedelivered flowers to Ardell Williams on February 10, 1994, and in her telephone conversations as Janet Jackson with Williams and membersofher family, where there was an insufficient showing - of a conspiracy between Yancey and Clark to murder Williams. He also contendsthat these statements were testimonial in nature and their admission violated the Confrontation Clause under Crawford v. Washington (2004) 541 US. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177]. (AOB 172-178.) While Clark failed to object on either hearsay or Confrontation Clause groundsandtherefore forfeited the claim on appeal, the evidence was nonetheless properly admitted 70 for the non-hearsay purposeofestablishing the existence of a conspiracy and as a statement of a conspirator. First, Clark did not make a hearsay objection in the trial court to testimony regarding Yancey’s statements. (53 RT 9300-9321, 9440-9472.) Clark’s failure to make an objection forfeits the claim on appeal. (Evid. Code, . § 353; see People v. Harrison (2005) 35 Cal.4th 208, 239; People v. Szeto (1980) 29 Cal.3d 20, 32.) . In any event, Yancey’s statements during the flower delivery and during the Janet Jackson phone calls were properly admitted. As discussed in Argument XI, ante, Evidence Code section 1200, subdivision (a) defines hearsay as an out-of-court statement offered to prove the truth of the matter asserted. (People v. Crew, supra, 31 Cal.4th at p. 841.) Hearsay statements are inadmissible unless an exception to the hearsay rule applies. (Evid. Code, § 1200, subd. (b); People v. Hardy, supra, 2 Cal.4th at p. 139.) - Yancey’s statements were admissible for the non-hearsay purpose of demonstrating the existence of a conspiracy between Yancey and Clark to murder Ardell Williams. (See People v. Noguera, supra, 4 Cal.4th at pp. 624-625.) The truth of Yancey’s statements were of no importance to the prosecution’s case. Indeed, the statements were patently untrue. Yancey was not a flower delivery person and no flowers had been sent to Ardell Williams. Janet Jackson did not exist and there was no job interview for Williams at Continental Receiving. The importance ofthe statements werenottheir truth, but instead, the fact that they were madeat all. The statements demonstrated Yancey’s role in helping Clark to murder Ardell Williams by luring Williams fromher home to the nearby Continental Receiving yard where she was murdered. Yet, even assuming that Yancey’s statements were offered for their truth, they were admissible under Evidence Code section 1223 as an exceptionto the hearsay rule. A trial court’s admission of evidence under a hearsay exception 71 is reviewed for an abuseofdiscretion. (People v. Martinez, supra, 22 Cal.4th at p. 120.) A trial court similarly has broad discretion in determining whether the proponent of evidence has established the necessary foundational requirements for the application of a hearsay exception. (/bid.) The trial court’s, ruling on admissibility “implies whatever finding offact is prerequisite thereto; a separate or formal finding is, with exceptions not applicable here, unnecessary. [Citation.]” [Citation.] (Ibid.) Under Evidence Code section 1223, hearsay statements are admissible if the proponent of the evidence “presents ‘independent evidenceto establish primafacie the existence of . . . [a] conspiracy. Cal.4th at p. 139.) (People v. Hardy, supra, 2 Once independent proof of a conspiracy has been shown, three preliminary facts must be established: “(1) that the declarant was participating in a conspiracyat the time of the declaration; (2) that the declaration was in furtherance of the objective of that conspiracy; and (3) that at the time of the declaration the party against whom the evidence is offered was participating or would later participate in the conspiracy.” (Ibid.) The prosecution presented ample evidence of a conspiracy between Yancey and Clark to murder Ardell Williams. Ardell Williams’s grand jury testimony detailing her knowledge of Clark’s involvement in the Comp USA robbery and murder and her subsequent cooperation with the police was admitted, thereby supplying the motive for her murder to prevent her from testifying at Clark’s trial. (SO RT 8739-8793.) This was confirmed by Clark’s statement to Alonzo Garrett that “[t]his is the womanright here that could put me away.” (56 RT 9715.) Yancey’s relationship to Clark and participation in the murderplot was also well-established by her phone records for the period of January through 72 March 1994, which indicated numerous calls to Clark’s attorney, his investigator, a pay phonein the Orange County Jail accessible to Clark, and to Ardell Williams’s home. (60 RT 10156-10157.) Yancey visited Clark at the Orange County Jail less than an hour after Williams’s body was discovered. (54 RT 9513-9521; 55 RT 9550; 60 RT 10155.) | During the search of Yancey’s apartment, police found an income tax return and receipts in Clark’s nameanda receipt in Eric Clark’s name. (55 RT 9558-9559.) There wasalso a file marked “Billy” and numerousletters from Clark to Yancey in the apartment. (55 RT 9565-9581.) In a voice lineup, Williams’s mother andsister identified Antoinette Yancey’s voice as being that ofJanet Jackson. (54 RT 9409-9412, 9499-9502; 55 RT 9586-9591.) Williams’s mother andsister also identified Yancey in a photo lineup as the person who haddelivered the flowers to Williams. (55 RT 9591-9594.) Yancey’s fingerprints were also found on the box the flowers were delivered in. (57 RT 9951.) Further, after her arrest, Yancey spoke to a friend on the phoneand told him that she had been arrested because she had delivered flowers to someone who was later found murdered. (56 RT 9636-9637.) Based on this evidence,the trial court could properly concludethat the prosecution had metits burden of establishing prima facie evidence that a conspiracy to murder Ardell Williams existed, that both Yancey and Clark were involved in the conspiracy, and that Yancey wasacting in furtherance of the conspiracy when she delivered the flowers to Williams’s home, which introduced her to Williams’s mother and sister whom she would later speak to on the phone as Janet, and made the Janet Jackson phonecalls, which lured Williamsto her death. Accordingly, Yancey’s statements were also admissible for their truth under Evidence Code section 1223. (See /bid.) Similarly, the admission of Yancey’s statements did not violate the Confrontation Clause. First of all, Clark failed to object under the 73 Confrontation Clauseat trial, thereby forfeiting the claim on appeal. Failure to assert the Confrontation Clause as grounds for challenging an evidentiary ruling in the trial court should waivethe issue on appeal. (People v. Burgener, supra, 29 Cal.4th at p. 869; but see People v. Johnson (2004) 121 Cal.App.4th 1409, 1411, fn. 2 [Confrontation Clause objection not forfeited where trial occurred before decision in Crawford].) This Court has twice declined to decide whether a defendanttried before Crawford wasdecided forfeits an appellate challenge to the admission of testimonial evidence in violation of the Confrontation Clause under Crawford dueto the failure to raise the issue at trial. (See People v. Harrison, supra, 35 Cal.4th at p. 239; People v. Monterroso (2004) 34 Cal.4th 743, 763.) Accordingly,it is an open question whether Clark forfeited a Confrontation Clause challenge to the evidence based on his lack of objection. Even if Clark’s claim is not waived, Crawfordis inapplicable to the challenged statements of Yancey. In Crawford v. Washington, supra, 541 U.S.at p. 68, the United States Supreme Court heldthat, admission of testimonial evidence from a witness who does not testify violates the Confrontation Clause, unless the witness is unavailable and the defendant has had a prior opportunity for cross-examination. (People v. Mitchell (2005) 131 Cal.App.4th 1210, 1221.) Without defining the phrase “testimonial,”the high court noted four types of statements that were of particular constitutional concern: (1) “‘ex parte in-court testimonyorits functional equivalent--thatis, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine,or similar pretrial statements that declarants would reasonably expect to be used prosecutorially’ ”; (2) “extrajudicial statements . . . contained in formalized testimonial 18. The issue of how “testimonial” is to be defined under the Confrontation Clause is pending before this Court in People v. Cage, review granted October 13, 2004, S127344. 74 materials, such as affidavits, depositions, prior testimony, or confessions’”; (3) “‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial’”’; and (4) “[s]tatements taken by police officers in the course of interrogations.” ([bid., citing Crawford v. Washington, supra, 541 U.S.at pp. 51-52, 124 S.Ct. 1354.) The high court noted that non-testimonial hearsay, a category in which the court expressly included statements in furtherance ofa conspiracy, did not implicate the Confrontation Clause. (People v. Mitchell, supra, 131 Cal.App.4th at pp. 1221-1222,citing Crawford v. Washington, supra, 541 US. at p. 56, fn. omitted.) As discussed above, Yancey’s statements while posing as the flower delivery person and as Janet Jackson were offered as non-hearsay evidence ofa conspiracy,and,to the extent they were offered for their truth,fell under the statement of a conspirator exception to the hearsay rule. Neither theory of admissibility fell afoul of Crawford and the Confrontation Clause. (See Crawford v. Washington, supra, 541 U.S.at pp. 56, 68.) | Nonetheless, even assuming Yancey’s statements were improperly admitted understate hearsay rules, Clark’s claim fails for want ofa showing of prejudice. Error in the “application of ordinary rules of evidence”is reviewed under the harmless error standard articulated in People v. Watson, supra, 46 Cal.2d at 836, and will only result in reversal where it is reasonably probable that the defendant would have received a more favorable outcome had the challenged evidence not been admitted. (People v. Harris, supra, 37 Cal.4th at p. 336.) Asdiscussed above, Yancey’s statements while posing as the flower delivery person and as Janet Jackson werereally not important for their truth __ andthere was ample evidenceofthe conspiracy between Yancey and Clark to murder Williams independent of the statements. Accordingly, it is not reasonably probable that Clark would have obtained a more favorable result had ~ 75 the challenged statements not been admitted and any error was harmless. (See People v. Watson, supra, 46 Cal.2d at p. 836.) XVIII. CLARK FORFEITED HIS CLAIM THAT THE ADMISSION AT THE PRELIMINARY HEARING OF ARDELL WILLIAMS’S GRAND JURY TESTIMONY AND POLICE INTERVIEW STATEMENTSVIOLATED THE CONFRONTATION CLAUSE BY FAILING TO OBJECT ON CONFRONTATION CLAUSE GROUNDS AND, IN ANY EVENT, THE ADMISSION OF THE EVIDENCE DID NOT VIOLATE THE CONFRONTATION CLAUSE BECAUSE THE STATEMENTS WERE OFFERED FORNON-HEARSAY PURPOSES Clark contends that Ardell Williams’s grand jury testimony and interviews with police were improperly admitted at the preliminary hearing in violation ofthe Confrontation Clause, and specifically the rule set forth by the United States Supreme Court in Crawford v. Washington, supra, 541 U.S.36. (AOB 179-186.) Clark’s claim wasforfeited by his lack of objection at the preliminary hearing and,in any event, Crawford and the Confrontation Clause were not implicated because Williams’s statements were admitted for non-hearsay purposes. Asdiscussed in Argument XVII, ante, Clark forfeited any objection on Confrontation Clause groundsbyfailing to object under the Confrontation Clause at the preliminary hearing to the admission of Williams’s grand jury testimony or police interviews. (People v. Burgener, supra, 29 Cal.4th at p. 869; but see People v. Johnson, supra, 121 Cal.App.4th at p. 1411, fn. 2 [Confrontation Clause objection not forfeited where trial occurred before decision in Crawford].) Further, this Court has previously held that the federal Constitution does not requirethat a preliminary hearing “includetraditional adversary safeguards 76 such as the right of confrontation’” and that the use ofhearsay at a preliminary hearing does not violate the Confrontation Clause. (Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1081.) Accordingly, Crawford is inapplicable to Williams’s statements introduced at the preliminary hearing. (See /bid.) In any event, the admission of the evidence did not violate the Confrontation Clause. As discussed in Argument XVII,ante, the high court in Crawford held that the admission of testimonial hearsay statements is permissible under the Confrontation Clause where the declarant is unavailable and there was a prior opportunity for cross-examination. (Crawford v. Washington, supra, 541 U.S. at p. 68.) Crawford only addressed the admissibility of hearsay evidence, defined in California as “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200.) The challenged statements here were not offered for their truth and were never considered as such by the magistrate at the preliminary hearing. The prosecution originally sought to offer Williams’s grand jury testimony and interview statements. at the preliminary hearing pursuant to Evidence Code section 1350, the hearsay exception for statements of an unavailable declarant. (1 MCCT 119-120.) However, at the preliminary hearing, the prosecution abandoned Evidence Codesection 1350 as a theory of admissibility, arguing instead that the statements were being offered for the non-hearsay purposesofproving the corpus ofthe murder of a witnessspecial circumstance by establishing that Williams was a witness against Clark (Pen. Code, § 190.2, subd. (a)(10)) and by demonstrating Clark’s knowledge that Williams was a material witness in the case pending against him at the time of her murder. (X MCRT 2119-2121.) At the hearing on Clark’s motion to dismiss under Penal Code section 995, Clark’s counsel expressly agreed that Williams’s grandjury testimony and police interviews had been offered at the preliminary hearing for non-hearsay 77 purposesand notfor the truth of the matter asserted. (3 RT 1132, 1146.) The trial court, in considering the 995 motion, explained its view with regard to Williams’s statements offered at the preliminary hearing, It would appear to the court that, since I am reviewing the preliminary hearing, that any restrictions placed on the hearsay use of those statements which the magistrate acknowledged would be my standard in reviewing. That does not mean that this court would be bound one wayorthe other duringa trial in this court. It's my review standard, and if the evidence was submitted at the preliminary hearing for purposes other than the truth of the matter asserted, and the record appears to support that, then that will be the standard this court will apply in deciding whetherornotit believes the magistrate had adequate probable cause for the bind over without prejudice to whatever develops at trial in this court, should the matter proceedto trial. So that will be the standard I'm applying. [{] They were not, as I read the lower court proceedings, they were not offered, used or received for the truth ofthe matter asserted, and in reviewing that court’s decision, I will assume and use the same standard, the non-hearsay purposeswill be given weight in the court’s ruling, and review, the hearsay purposes weren't used there and won't be used myself. (3 RT 1145-1147.) Under Crawford, the admissionat the preliminary hearing ofWilliams’s grandjury testimonyandpolice interviewsdid not implicate the Confrontation Clause because they were not hearsay and werenot considered for their truth. (See Crawford v. Washington, supra, 541 U.S.at p. 68.) Indeed, Clark’s lack of a prior opportunity to cross-examine Williams, the core concern identified in Crawford with regard to the admission oftestimonial hearsay, wasirrelevant because cross-examination could only serve to challenge the content of the statements and the content was expressly not considered by the court at the preliminary hearing. (See Jd. at pp. 54-56.) Cross-examination would not have altered the fact that the statements were made by Williams and that the statements were made in regards to Clark and the Comp USA case. The statements merely established that Williams was a witness against Clark and that Clark had knowledgeofthis fact and these facts existed independently of 78 whether information Williams asserted therein was true or not. Accordingly, admission of Williams’s grand jury testimony and police interviews as non-hearsay did not violate the Confrontation Clause under Crawford. (See id. at p. 68.) However, even assuming the Confrontation Clause were applicable to Ardell Williams’s statements admitted at the preliminary hearing, Clark procured Williams’s unavailability by murdering herand,therefore, the doctrine of forfeiture by wrongdoing disposes of any confrontation claim Clark might raise. As the United States Supreme Court explained in Crawford,“the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds.” (Id. at p. 62. As the United States Supreme Court explained in Davis v. Washington (2006) _ —sU'S. L__- S.Ct.,_= L.Ed.2d__—J[2006 WL 1667285, *12] [remandingcasetostate court to determine if forfeiture by wrongdoing exception applied], [W]hen defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims, the Sixth Amendment does not require courts to acquiesce. While defendants have no duty to assist the State in proving their guilt, they do have the duty to refrain from acting in ways that destroy the integrity of the criminal-trial system. Wereiterate what we said in Crawford: that “the tule of forfeiture by wrongdoing. . . extinguishes confrontation claims on essentially equitable grounds.” [Citation.] That is, one who obtains the absence of a witness by wrongdoingforfeits the constitutional right to confrontation. A numberof federal courts have applied the doctrine of forfeiture by wrongdoing in cases where defendants have claimed that hearsay statements were improperly admitted. (United States v. Gray (4th Cir. 2005) 405 F.3d 227, 19, This Court granted review on December 22, 2004, S129852, in People v. Giles (2004) 123 Cal.App.4th 475, to consider the question of whetherthe doctrine of forfeiture by wrongdoing applies where the defendant murdered the declarant to procure her unavailability and where that murderis the same act for which the defendantis ontrial. 79 240-243 [hearsay statements ofvictim prior to murder admitted underforfeiture by wrongdoing exception]; United States v. Garcia-Meza (6th Cir. 2005) 403 F.3d 364, 370-371 [defendant forfeited rights under Confrontation Clause by killing declarant]; United States v. Rodriguez-Marrero (1st Cir. 2004) 390 F.3d 1, 17 [forfeiture by wrongdoing is an independent ground for admissibility of hearsay and exception to Confrontation Clause that survives Crawford].) Here, the magistrate, in finding probable cause to hold Clark to answer charges that he conspired to, and did, murder Ardell Williams and that her murder was committed pursuant to Penal Code section 190.2, subdivision (a)(10) for the purpose of preventing her from testifying at trial, implicitly found that Clark’s wrongdoing was responsible for her absence at the proceedings. Accordingly, under the doctrine of forfeiture by wrongdoing recognized by the United States Supreme Court in Crawford and Davis, Clark forfeited any confrontation claim based on her absence. (See /bid.) XIX. CLARK’S FAILURE TO EXERCISE HIS PEREMPTORY CHALLENGES TO REMOVE PROSPECTIVE JURORS HE CONTENDS HAD A PRO-DEATHBIAS FORFEITS HIS CLAIM ON APPEAL AND, IN ANY EVENT, THE TRIAL COURT CORRECTLY DENIED THE CHALLENGES FOR CAUSE BECAUSE THE PROSPECTIVE JURORS’ VIEWS ON THE DEATH PENALTY WOULD NOT PREVENT OR SUBSTANTIALLY IMPAIR THEM IN THE PERFORMANCEOF THEIR DUTIES Clark contendsthatthe trial court improperly denied challenges for cause to a numberofimpermissibly pro-death oriented prospective jurors at both his first trial and the penalty-phaseretrial and thathis ability to exercise peremptory challenges was therefore infringed. (AOB 187-234.) However, Clark has forfeited his claim by failing to exercise his peremptory challenges to remove 80 the challenged jurors and, in any event, the trial court correctly denied the challenges for cause because the prospective jurors’ views on the death penalty would not prevent or substantially impair them in the performance oftheir duties as jurors. Clark’s attack on the trial court’s denial of challenges for cause made against allegedly pro-death jurors is forfeited based on his failure to exercise peremptory challengesas to these jurors. (People v. Danielson (1992) 3 Cal.4th 691, 713, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Additionally, as this Court has noted: “To preserve a claim oferror in the denial of a challenge for cause, the defense must either exhaust its peremptory challenges and objectto the jury as finally constituted or justify the failure to do so.” [Citations.] (People v. Lucas (1995) 12 Cal.4th 415, 480.) Clark concedesthat, during jury selection at both thefirst trial and the penalty phaseretrial, he failed to exhaust his peremptory challenges or to exercise peremptory challenges as to the challenged jurors. (AOB 226-228.) Healso did not object to the jury as finally constituted. (41 RT 7308-7309.) Clark attempts to excusehis failure to exhaust his peremptory challenges by claimingthatthe trial court’s erroneous denial of challenges for cause as to the challenged jurors denied him his right to a full panel of qualified jurors before he exercised his peremptory challenges and that, [u]nder these circumstances, non-exhaustion ofperemptory challenges is not a waiver, but a legitimate and necessary response to the error of failing to exclude unqualified jurors from the panel. (AOB 227-228.) Clark fails to establish how not using peremptory challenges to excuse the challenged jurors was necessary or that the alleged error in refusing challenges for cause interfered with or prevented his exercise of peremptory challenges. If Clark truly believed that impermissibly pro-death jurors would be serving onhis jury, the use of his peremptory challengesas to 81 these jurors would be more,andnotless,critical. California law demandsthat a defendant exhaust his peremptory challengesin order to preserve the issue for appealandthetrial court’s rulings on the challenges for cause placed no bar or impediment to Clark’s exercise of his peremptory challenges. Accordingly, Clark has forfeited his attack onthetrial court’s denial ofchallenges for cause. (See Jbid.) Regardless of Clark’s forfeiture of the issue, his claim also fails on the merits. “Tn a capital case, a prospective juror may be excludedifthe juror’s viewson capital punishment would “prevent or substantially impair” the performanceofthe juror's duties.’ [Citations.] ‘A prospective juroris properly excludedifhe or she is unable to conscientiously considerall of the sentencing alternatives, including the death penalty where appropniate.’ [Citation.]’”” [Citation.] (People v. Jenkins, supra, 22 Cal.4th at p. 987.) 6 6“The determination of a juror’s qualifications falls “within the wide discretion ofthe trial court, seldom disturbed on appeal.””” (People v. Haley (2004) 34 Cal.4th 283, 306.) A reviewing court will uphold a trial court’s determination regarding ajuror’s views on capital punishment and whether they would prevent or substantially impair the performanceofthe juror’s duties so long as they are supported by substantial evidence,“‘ “accepting as binding the trial court’s determination as to the prospective juror’s true state ofmind when the prospective juror has made statements that are conflicting or 999 99ambiguous. (People v. Jenkins, supra, 22 Cal.4th at p. 987; see also People v. Wilson (2005) 36 Cal.4th 309, 324.) Clark focuses on twelve prospective jurors at the first trial and five prospective jurors at the penalty phase retrial who, based on their statements | during voir dire, he alleges demonstrated a pro-death bias. (AOB 191-212, 216-221.) Thetrial court and counsel examinedeach ofthese jurors at length regarding their views on the death penalty andtheir ability and willingness to 82 perform their duties as jurors. (18 RT 3586-3602 [Juror BF], 3638-3654 [Juror DM]; 19 RT 3965-3978[Juror JC]; 20 RT 4151-4161 [Juror WP]; 23 RT 4485- 4511 [Juror BA2; 24 RT 4649-4658 [Juror AI]; 27 RT 5154-5166 [Juror MW], 5213-5222 [Juror DB]; 29 RT 5545-5555 [Juror LT]; 31 RT 5805-5814 [Juror SH]; 32 RT 5985-5993 [Juror LW]; 36 RT 6506-6514 [Juror RM]; 74 RT 12458-76 RT 13039 [penalty phase retrial jurors].) Clark ignores the numerousstatements each of these prospective jurors madeindicating their willingness to set aside any personal feelings regarding the death penalty and to follow the oath and the trial court’s instructions. When the statements of these jurors are viewedin their entirety, it is clear that they also made statements that were contradictory to those relied on by Clark. As this Court has observed, “Tn manycases, a prospective juror’s responses to questions on voir dire will be halting, equivocal, or even conflicting. Given the juror’s probable unfamiliarity with the complexity ofthe law, coupled with the stress and anxiety of being a prospective juror in a capital case, such equivocation should be expected. Under such circumstances, we defer to the trial court's evaluation ofa prospective juror’s state ofmind, and such evaluation is binding on appellate courts.” (People v. Moon (2005) 37 Cal.4th 1, 15-16, quoting People v. Fudge (1994) 7 Cal.4th 1075, 1094.) Forinstance, Clark focuses on statements made byjurors BF, DM,BA, Al, MW, LT, SH, LW, RM, HF, KH, RL, and KM,that he characterizes as impermissibly pro-death. (AOB 191-221.) None ofthe juror statements cited by Clark were impermissibly pro-death or indicative of a bias of anysort. Moreover, each juror made statements that indicated their willingness to follow the court’s instructions and not allow their personal feelings to get in the way of making an objective decision. While juror BF did indicate that he “usually feel[s] that the death penalty is justified in cases ofmurder,” he also indicated 20. Thetrial court dismissed juror BA for medical reasons pursuant to a stipulation by the parties. (23 RT 4516-4518.) 83 that he would follow the court’s instruction and would rendera verdictoflife without parole if he felt the factors in mitigation outweighed the factors in aggravation. (18 RT 3586, 3589, 3599.) Juror DM expressly indicated that he had “no impairment”in his ability to give equal consideration to both death and life without parole as possible sentences. (18 RT 3640.) Juror AI indicated that he would not automatically vote for the death penalty, but would considerall ofthe factors and would be open to punishmentother than death. (24 RT 4650, 4653-4655.) Juror MW,despite some confusion regarding his answers (27 RT 5167-51830), indicated that his ability to weigh and considerall the evidence and consider both death and life without parole would not be substantially impaired by feelings about the death penalty. (27 RT 5187.) Juror LT also was somewhat equivocalin her answers, but, when confronted with the ambiguity, indicated that she could “keep an open mind on penalty until everything had been presented and [she] had weighedit.” (29 RT 5555.) Juror SH explained that he could consider both death and life without parole and would not have a predisposition to either. (31 RT 5807-5809.) Juror LW expressly stated “I would consider both life without parole and the death penalty.” (32 RT 5993.) Juror RM indicated that could give “fair consideration” to both the death penalty and life without parole. (36 RT 6508.) Juror HF indicated that she was “on the fence” and could decide either for death or life without parole based on the evidence. (76 RT 12965.) Juror KH indicatedthat “every individual should receive [an] unbiasedfair trial” and that she would be willing to considerall factors before deciding on the penalty. (28 CT (Juror Questionnaires) 6896, 6901.) Juror CP indicated that she was willing to follow the court’s instructions regarding the factors to consider in making a penalty determination and that she consideredlife without parole to be an acceptable alternative to death. (39 CT (Juror Questionnaires) 9922-9924.) Juror RL also indicated that he would follow the court’s instructions regarding determining penalty. (40 CT (Juror Questionnaires) 10170.) Juror KM similarly mdicated that she was willing to 84 follow the court’s instructions regarding the factors to consider in making a penalty determination and that she considered life without parole to be an acceptable alternative to death. (37 CT (Juror Questionnaires) 9257-9259.) The statements ofthejurors supportedthe trial court’s determination that their views on the death penalty would not substantially impair the performance of their duties. Similarly, although Juror JC indicated that she was religious person (20 RT 3966, 3972-3978), she also indicated that her decision regarding penalty would depend on the circumstances of the case and that, if the evidence supporteda finding oflife without parole, she would vote accordingly. (20 RT 3967, 3978.) Nothing about Juror JC’s religious views indicated that she would not follow the court’s instructions and she expressly indicated that her views on the death penalty would not substantially impair her in the performanceofher duties as ajuror. (20 RT 3967-3968.) Clark also claims that Jurors HF, KH, and CP should have been questioned regarding their psychology studies, disclosed in their juror questionnaires. (AOB 216-219.) Clark provides no support for his bare supposition that a knowledgeofpsychology would create the dangerthat these jurors “might offer informal expert opinions during voir dire” (AOB 217), or howthis could substantially impairtheir ability to perform their duties as jurors. Similarly, Clark fails to explain how Juror CP’s prior hospitalization for mental illness, as indicated on her jury questionnaire (39 CT (Jury Questionnaires) 9915), could possibly bias her in her consideration of the case or otherwise substantially impair her in the performance ofher duties as ajuror. (AOB 218- 219.) Similarly, Juror CP’s knowledge of the case was not indicative of any - impairmentin her ability to follow the court’s instructions in determining penalty. She only indicated that she had seen on television that someone had entered a Comp USA and murdered several employees. (39 CT (Jury Questionnaires) 9917.) In the first instance,this indicatedlittle familiarity with 85 the case, considering that she was incorrect regarding the numberofvictims. Second, she indicated that she had later heard a friend of her ex-husband who she identified as Joe Plourd, a Comp USA employee, wasontelevision. Plourd wasnot a witnessor victim in the case andthereis no indication that she had ever discussed the case with him. Further, even if she had some knowledge of the case, guilt had already been decided before the penalty phase retrial commenced. Juror JC indicated that she was willing to follow the court’s instructions regarding the factors to consider in making a penalty determination and that she considered life without parole to be an acceptable alternative to death and there was no reason not to take her at her word. (39 CT (Juror Questionnaires) 9922-9924.) The record amply supports the trial court’s conclusion that these prospective jurors were not substantially impaired in the performanceoftheir duties as jurors. (See People v. Jenkins, supra, 22 Cal.4th at p. 987.) XX. THE TRIAL COURT PROPERLY DISMISSED THREE PROSPECTIVE JURORS BECAUSE THEY UNEQUIVOCALLY EXPRESSED THAT THEIR OPPOSITION TO THE DEATH PENALTY WOULD SUBSTANTIALLY IMPAIR THEIR ABILITY TO PERFORM THEIR DUTIES AS JURORS Clark contends that the trial court improperly granted challenges for cause and dismissed three prospective jurors based on their opposition to the death penalty. (AOB 235-245.) However,the trial court’s dismissal of these three prospective jurors was well-supported by thestatements of the jurors during voir dire indicating that their opposition to the death penalty would substantially impair their ability to perform their duties as jurors. As discussed in Argument XIX,ante, “rin a capital case, a prospective juror may be excludedif the juror’s views on capital punishment would “prevent or substantially 86 impair” the performance of the juror’s duties.’ [Citations.] ‘A prospective juror is properly excluded if he or she is unable to conscientiously considerall ofthe sentencing alternatives, including the death penalty where appropriate.’ [Citation.]” [Citation.] (People v. Jenkins, supra, 22 Cal.4th at p. 987.) A prospectivejuror’s bias against the death penalty need not be “proven with unmistakable clarity.” (People v. Haley, supra, 34 Cal.4th at p. 306.) “Instead, ‘it is sufficient that the trial judge is left with the definite impression that a prospective juror would be unableto faithfully and impartially apply the law in the case before the juror.’ ” (Jbid.) 6 66.“The determination of a juror’s qualifications falls “within the wide 1.”’” .discretionofthe trial court, seldom disturbed on appea (People v. Haley, supra, 34 Cal.4th at p. 306.) A reviewing court will uphold trial court’s determination regarding ajuror’s views on capital punishment and whether they would prevent or substantially impair the performanceofthe juror’s duties so oo 6 66long as they are supported by substantial evidence, accepting as binding the trial court’s determinationas to the prospectivejuror’s true state ofmind when the prospective juror has made statements that are conflicting or ambiguous. v. Wilson, supra, 36 Cal.4th at p. 324.) (People v. Jenkins, supra, 22 Cal.4th at p. 987; see also People Each of the three prospective jurors Clark alleges were improperly dismissed for cause based ontheir anti-death penalty views were examined at length bythetrial court and counsel and expressed an unwillingnessorinability to follow the oath and the trial court’s instructions and consider the death penalty. (18 RT 3625-3635 [Juror JB], 3687-3692 [Juror CC]; 36 RT 6495- 6504 [Juror DF].) Prospective Juror JB stated to the court that, while she believed in the death penalty, “I know for a fact I could not choose to send somebodyto a meansto have them killed.” (18 RT 3627.) When asked, “Do you have such 87 strong feelings against the death penalty that your own ability to return a verdict ofdeath would be substantially impaired?” she responded,“Yes, I do.” (18 RT 3628.) The trial court granted the prosecution’s challenge for cause despite Clark’s opposition and dismissed prospective Juror JB, concluding that “I believe as I understood this juror’s responses, sheis telling the court that she has no philosophical quarrel in the abstract withthe death penalty, but she personally could not impose it” and that “her answers applying the Witt standard convince methat she would not vote to take a human life.” (18 RT 3635-3637.) Prospective Juror JB’s responses during voir dire support this conclusion andthe trial court correctly dismissed her from the jury. (See People v. Haley, supra, 34 Cal.4th at pp. 306-308.) Prospective Juror CC stated that he was opposedto the death penalty, as it was “just getting even.” (18 RT 3688.) When asked if “yourattitude against the death penalty would impair your ability, substantially impair your ability to return a finding that [Clark] should be sentenced to death?” he responded, “Yes, I believe so.” (18 RT 3689.) Thetrial court further inquired, Is it basically your statementto the court that despite the present state of the law in the state of California, and despite the sufficiency of the proof, that your own personalobjection to the death penalty would make it impossible for you to consider that as a verdict you could participate it? Prospective Juror CC answered, “Yes.” (18 RT 3689.) The prosecution challenged prospective juror CC for cause and Clark’s counselindicated “the Witt standard I think, my understanding,it’s met,” but that he was nonetheless opposing the juror’s dismissal because the juror indicated a willingnessto listen to the evidence. (18 RT 3692-3693.) Although Clark’s counsel did not join in juror CC’s dismissal, his concurrence that the 88 Witt standard was met is of some import. (See People v. Schmeck (2005) 37 Cal.4th 240, 262.) The trial court granted the challenge and dismissed prospective Juror CC, finding that prospective Juror CC “is telling us that his objection to the death penalty is such that he couldn’t imposeit.” (18 RT 3693.) Prospective Juror CC’s inability to perform his duties as a juror and unwillingness to consider the death penalty under any circumstances was unequivocally established by his responsesto the trial court’s questions and the trial court correctly dismissed him from the jury. (See People v. Haley, supra, 34 Cal.4th at pp. 306-308.) Prospective Juror DF was asked whether “you yourself do not want to acceptthat responsibility of ever voting to put someone to death?”andsaid,“I think that’s fair.” (36 RT 6496-6497.) When asked,“Ifyou sit in a case,is this emotion,this personal feeling that you have, ofsuch magnitude that you think in your mind it would impair you, it would prevent you, whatever words you want to use, from considering imposing the death penalty?” Prospective Juror DF answered,“I think it would. I think the answeris yes.” (36 RT 6503.) Prospective Juror DF then described his impairmentin performinghis duties as a juror as “substantial.” (36 RT 6503.) Thetrial court granted the prosecution’s challenge to Prospective Juror DFdespite Clark’s opposition, finding that “he has expressed such emotional dilemma concerning the death penalty and quantifies his reluctance to implementit, no matter what the evidenceis, is substantially impaired, and I will excuse him.” (36 RT 6504-6505.) Prospective Juror DF’s inability to perform his duties as a juror and unwillingness to consider the death penalty _ under any circumstances was unequivocally established by his responsesto the trial court’s questionsandthetrial court correctly dismissed him from the jury. (See People v. Haley, supra, 34 Cal.4th at pp. 306-308.) 89 XXI. CLARK’S EXCLUSION FROM THE IMMUNITY HEARING FORMATTHEWWEAVERAND JEANETTE MOORE DID NOT VIOLATE HIS RIGHT TO BE PRESENT DURING CRITICAL STAGES OF THE PROCEEDINGS BECAUSE THE HEARINGWAS NOTA CRITICAL STAGE Clark contends that his federal constitutional right to be presentatall critical stages of the proceedings against him was violated by his exclusion from the Penal Codesection 1324 immunity hearing for prosecution witnesses Matthew Weaverand Jeanette Moore. (AOB 246-255.) Clark’s claim fails because an immunity hearing under section 1324 is not a critical stage of criminal proceedings implicating a defendant’s state and federal constitutional rights. A criminal defendant enjoys the right under both the state and federal se 6 66 OCConstitutions to be personally present wheneverhis presence has a relation, reasonably substantial, to the fullness of his opportunity to defend ce against the charge,’ ”but not ‘when presence would be useless,or the benefit but a shadow.’”’” (People v. Roldan, supra, 35 Cal.4th at pp. 717-718.) This right only attaches “ ‘at a “stage .. . that is critical to [the] outcome” and [where] “his presence would contribute to the fairness of the procedure.” ’ ” (id. at p. 718.) ‘Clark contendsthat the hearing at which prosecution witnesses Matthew Weaverand Jeanette Moore were granted immunity pursuant to Penal Code sectionl1324 was such a critical stage of the proceedings and therefore implicated his right to personal presence. (AOB 246-255.) Regardless, the immunity hearing under Penal Code section 1324 wasnota critical stage of the 90 proceedings and had noreasonably substantial relation to Clark’s ability to defend the charges against him.2” Although this Court has never addressed the question of whether an immunity hearing under Penal Codesection 1324is a critical stage ofa criminal proceedings implicating a defendant’s right to personal presence, the Courts of Appeal have addressed the issue in two cases, People v. Randolph (1970) 4 Cal.App.3d 655, and People v. Boehm (1969) 270 Cal.App.2d 13. In Randolph, the Court of Appeal held that a hearing under Penal Codesection 1324 was not a critical stage of the proceedings requiring the defendant’s presence because section 1324, on its face, does not concern any party other than the prosecutor and the witness refusing to testify. (People v. Randolph, supra, 4 Cal.App.3d at p. 660.) In Boehm, another Court of Appeal held that a defendant was not prejudiced by his absence from an immunity hearing for a codefendant. (People v. Boehm, supra, 270 Cal.App.2d at pp. 19-20.) The court noted that “any possible benefit that [the defendant] might have derived by being personally present at the conference would have been ‘but a shadow.’” (id.at p. 20.) Contrary to Clark’s assertion (AOB 249), the court in Boehm never expressly held that an immunity hearing wasa critical stage ofthe proceedings, but instead decided the case based onthe lack ofprejudice without addressing the underlying issue. (/d. at pp. 19-20.) However, even ifBoehm can be read as holding that an immunity hearing under Penal Codesection 1324is a critical 21. The hearing was conducted outside of Clark’s presence and, although there are indications on the record that the hearing wasreported, a transcript of that hearing is not part of the instant record. (43 RT 7592.) While it is error to fail to report all proceedings in a capital case as required by Penal Codesection 190.9,it is not reversible error absent prejudice. It is Clark’s burden to show a deficiency in the record is prejudicial to his ability to prosecute his appeal. (People v. Huggins (2006) 38 Cal.4th 175, 204.) There was no prejudice from any failure to report the proceedings, or the absence ofanytranscript, and Clark does not contend otherwise. 91 stage ofthe proceedings, the holding in Randolphis the better view and should be adopted by this Court. Penal Code section 1324 provides: - Inany felony proceedingorin any investigation or proceeding before a grand jury for any felony offense if a person refuses to answer a question or produce evidenceofany other kind on the groundthat he or she may beincriminated thereby, and if the district attorney of the county or any other prosecuting agency in writing requests the court, in and for that county, to order that person to answer the question or produce the evidence, ajudge shall set a time for hearing and order the person to appear before the court and show cause, if any, why the question should not be answeredor the evidence produced,and the court shall order the question answered or the evidence produced unlessit finds that to do so would beclearly contrary to the public interest, or could subject the witness to a criminal prosecution in another jurisdiction, and that person shall comply with the order. After complying, and if, but for this section, he or she would have been privileged to withhold the answer given or the evidence produced by him orher, no testimonyor other information compelled underthe order or any information directly or indirectly derived from the testimony or other information may be used against the witness in any criminalcase. Buthe or she maynevertheless be prosecuted or subjected to penalty or forfeiture for any perjury, false swearing or contempt committed in answering, or failing to answer, or in producing,or failing to produce, evidence in accordance with the order. Nothing in this section shall prohibit the district attorney or any other prosecuting agency from requesting an order granting use immunity or transactional immunity to a witness compelled to give testimony or produce evidence. As the Court of Appeal in Randolph correctly noted, section 1324, by its terms, involves only three parties in immunity proceedings: the court, the prosecutor, and the witness. (Pen. Code, § 1324; People v. Randolph, supra, 4 Cal.App.3d at p. 660.) The statute creates no place in the immunity proceedingsfor the defendant. Indeed, this Court has noted that section 1324 vests in the prosecutor alone a “statutory right, incidentto its charging authority, to grant immunity and thereby compel testimony.” (People v. Samuels (2005) 36 Cal.4th 96, 127.) 92 Just as a criminal defendant has no right to compel the prosecutor to grant immunity (/bid.), by parity of reasoning, a criminal defendant is without authority to challenge the prosecutor’s exercise ofthe statutory right. Immunity decisions,like charging decisions, are an exercise ofthe prosecution’s executive powersand,as at least one appellate court has observed,it is inappropriate for even the judiciary to “overrule” immunity decisions. (See People v. Galante (1983) 143 Cal.App.3d 709, 713.) Accordingly, since Clark was without power to object to the grant of immunity to Weaver and Moore, the only role he could have played at the ooec cehearing would be as a passive observer. As his presence would be useless’”’’ ” and “‘ “ ‘the benefit but a shadow,’ ”” ” Clark had noright to be personally present at the immunity hearing. (See People v. Roldan, supra, 35 Cal.4th at pp. 717-718.) This conclusion is consistent with this Court’s decisions regarding a criminal defendant’s constitutional right to be presentat critical stages of the proceedings. This Court has heldthat, a defendant may ordinarily be excluded from conferences on questions of law, even if those questionsare critical to the outcomeofthe case, because a defendant’s presence would not contribute to the fairness of the proceedings. (People v. Perry (2006) 38 Cal.4th 302, 312.) For example, a defendant may be excluded from a hearing regarding the competence ofa child witness. (/d., citing Kentucky v. Stincer (1987) 482 U.S. 730 [107 S.Ct. 2658, 96 L.Ed.2d 631].) A defendant may be excluded from a hearing on whether to remove a juror. (People v. Perry, supra, at p. 312, citing Rushen v. Spain (1983) 464 USS. 114 [104 S.Ct. 453, 78 L.Ed.2d 267].) A defendant may similarly be excluded from a hearing on jury instructions and “routine procedural discussions on matters that do not affect the outcomeofthetrial, such as when to resume proceedingsafter a recess.” (People v. Perry, supra, 38 CalAth at p. 93 312.) Just like these other analogous circumstances, the immunity proceedings under Penal Codesection 1324 similarly involved a purely legal determination in which Clark had no role to play. His presence would have contributed nothing to the proceedings and was unnecessary. However, even assuming Clark had right to be present at the immunity hearing, any error was harmless. [E]rror pertaining to a defendant’s presence is evaluated underthe harmless beyond a reasonable doubt standard set forth in Chapmanv. California (1967) 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705. (People vy. Davis, supra, 36 Cal.4th at p. 532.) Anyerror in excluding Clark from the immunity hearing was harmless beyond a reasonable doubt. As discussed above,there was norole for Clark to playat the hearing and he had nolegal authority to challenge the prosecution’s immunity decisions. The only thing Clark’s absence deprived him of was knowledge of precisely what was said. However, attrial, both Weaver and Mooretestified that they had been granted immunity by the prosecution. (43 RT 7640-7643; 45 RT 7999-8002.) Clark was afforded ample opportunity to cross-examine both witnesses regarding the grant of immunity and their previous, perjured testimony for which they had received immunity and to attack their credibility on that basis. (44 RT 7751-7816; 46 RT 8089-8169.) Clark’s absence from the immunity proceedings had no affect on the outcome of the trial. (See People v. Davis, supra, 36 Cal.4th at pp. 532-533.) 94 XXII. THE ADMISSION AT TRIAL OF ARDELL WILLIAMS’S GRAND JURY TESTIMONY AND INTERVIEW STATEMENTSTO POLICE DID NOT VIOLATE THE CONFRONTATION CLAUSE BECAUSE CLARK EXPRESSLY WAIVED HIS OBJECTION TO THE ADMISSION OF THE STATEMENTS FOR THEIR TRUTH Clark contends that Ardell Williams’s statements made during her grand jury testimony and interviews with police were improperly admitted under Evidence Code section 1350 at his trial in violation of the Confrontation Clause, and specifically the rule set forth by the United States Supreme Court in Crawford v. Washington, supra, 541 U.S. 36. (AOB 256-278.) Clark expressly withdrew anychallengeto thejury considering Williams’s statements for their truth and, by implication, he also waived any objection under the Confrontation Clause in light of the withdrawal of his hearsay objection. A criminal defendant’s federal constitutional right to confrontationis not absolute. (Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1138.) A defendant may waive his confrontation rights. (See Herbert v. Superior Court (1981) 117 Cal.App.3d 661, 667.) “A waiver of the right of confrontation can take various forms. In someinstances, an accused may voluntarily consent to forego his right of confrontation. . . . By stipulating to the admission of evidence, the defendant waives the right to confront the source of the evidence. [Citations.]” (See Jd. at pp. 667-668.) The prosecution sought to offer Williams’s grand jury testimony and interview statements at trial pursuant to Evidence Code section 1350, the hearsay exception for statements ofan unavailable declarant, as well as for the non-hearsay purposes of establishing motive and corpus for the murder of a witness special circumstance (Pen. Code, § 190.2, subd. (a)(10)). (5 CT 95 1744-1760.) Clark challenged the admission of Williams’s statements to the grand jury and police for their truth on hearsay and Confrontation Clause groundsin his written opposition. (1 CT 311-343.) Thetrial court denied the prosecution's motion to introduce Williams’s statements fortheir truth, finding that the requirement of trustworthiness under Evidence Code section 1350, subdivision (a)(4), was not satisfied, but permitted their admission for the non-hearsay purpose of establishing the corpus of the murder of a witness special circumstance by showing that Williams was a witness against Clark in the Comp USA case and establishing a motive for her murder. (13 RT 2600-2605.) Ata later hearing, Clark’s trial counsel indicated that he would abandon his opposition to Ardell Williams’s statements being offered for their truth so that he could impeach the substance ofthe statements. Thetrial court explained to Clark at length that it had ruled Ardell Williams’s statements inadmissible for their truth and the effect of abandoning his objection to the admission of the statements. Clark indicated that “I understandall of it now” and expressly waived any objection to Williams’s statements being offered fortheir truth. (14 RT 2915-2922.) Clark’s express waiver of any challenge to the admission of the statements for their truth also waived any objection under the Confrontation Clause and his claim must fail. (See Herbert v. Superior Court, supra, 117 Cal.App.3d at pp. 667-668.) However, even assuminghis confrontation objection was not waived, as discussed in Argument XVIII, ante, because Clark procured Williams’s unavailability at trial by murderingher, the doctrineofforfeiture by wrongdoing would prevent Clark from asserting that his confrontation rights were violated. Here, the jury found Clark guilty beyond a reasonable doubt of conspiring to murder Ardell Williams, of murdering Ardell Williams, and found true the special circumstance that Williams was murderedto preventher from testifying. 96 (8 CT 2777-2778, 2789.) Based on these findings, it is clear that Clark was responsible for procuring Ardell Williams’s unavailability and he is equitably barred from asserting that her absence violated his confrontation rights. (See Davis v. Washington, supra,_US.__[__ S.Ct...,_~——sL.Ed.2d__s, [2006 WL 1667285, *12].) XXIII. THE TRIAL COURT PROPERLY ADMITTED ARDELL WILLIAMS’S GRAND JURY TESTIMONYAND POLICE INTERVIEW STATEMENTS FOR THE NON-HEARSAY PURPOSE OF ESTABLISHING MOTIVE AND CORPUS OF THE MURDER OF A WITNESS SPECIAL CIRCUMSTANCE Clark contends thatthe trial court improperly admitted Ardell Williams’s grandjury testimony andpolice interview statements as non-hearsayto establish the corpus ofthe murderofa witness special circumstance (Pen. Code, § 190.2, subd. (a)(10)). He argues “[t]his was a thinly-veiled effort to introduce the statements for their truth.” (AOB 279-288.) However, the statements were relevant and properly admitted to establish motive and the corpus ofthe murder of a witness special circumstance. Asdiscussed in Argument XXII, ante, Clark expressly and personally withdrew any challenge to the statements being offered for their truth. (14 RT 2915-2922.) Insofar as Clark challenges the trial court’s admission of Williams’s grand jury testimony and police interviews as non-hearsay (13 RT 2600-2605), his claim is without merit. Asdiscussed in Argument X, ante, only relevant evidenceis admissible. (Evid. Code, § 350; People v. Cunningham, supra, 25 Cal.4th at p. 995.) Relevant evidenceis definedas, evidence,including evidencerelevantto the credibility of a witness. . ., having any tendencyin reason to prove or disprove any disputed fact 97 that is of consequenceto the determination ofthe action. (Evid. Code, § 210; People v. Cunningham, supra, 25 Cal.4th at p. 995.) A trial court has broad discretion to determine the relevance ofevidence and its exercise of discretion “is not grounds for reversal unless ‘ “the court exercisedits discretion in an arbitrary, capriciousorpatently absurd mannerthat resulted in a manifest miscarriage ofjustice.” ’ [Citations.]” (People v. Ochoa, supra, 26 Cal.4th at pp. 437-438; see also People v. Cunningham, supra, 25 Cal.4th at p. 995.) As this Court observed in People v. Durrant (1875) 116 Cal. 179, 207-208, “[iJn every criminal case, proof of the moving cause is permissible, and oftentimes is valuable[.]” The jury was instructed according to CALJIC No.2.51 that it could consider the presence of motive as tending to establish guilt. (7 CT 2686.) The prosecution contended that Clark arranged Ardell Williams’s murderto preventher from testifying against him in the Comp USAcase. This wasthe theory of the murder of a witness special circumstance (Pen. Code,§ 190.2, subd.(a)(10)). Clark contendsthat the prosecution merely hadto “prove that [Williams] testified before the grand jury and/or gave statements to law enforcement” and could do so without introducing the content ofthose statements. (AOB 281.) However, the content ofthe statements wascritical to establish that Williams’s potential testimony was so damning as to motivate Clark to have her killed to prevent her testimony from being presented at his trial. For the purpose of establishing motive, the truth of Williams’s statements wasirrelevant. It was only important to show that Clark knew what Williams would testify to at his _ trial. Whether Williams’s statements weretrueor not, it was Clark’s beliefthat the jury would hear and potentially believe Williams’s testimony that was critical in showing his motive for arranging her murder. 98 Clark relies on this Court’s decision in People v. Edelbacher, wherein the prosecution alleged pursuant to Penal Code section 190.2, subdivision (a)(10) that the defendant had murderedhis wife in retaliation for her testimony against him as the victim in his spousalrapetrial, in which the defendant had been acquitted. (AOB 281-282, citing People v. Edelbacher (1989) 47 Cal.3d 983, 1027.) Evidence of the earlier spousal rape trial and the fact that the victim had testified against the defendant was admitted at the defendant’s capital murdertrial to show motive. (Jbid.) This Court found that the evidence wasproperly admitted to show motive. (Jd. at pp. 1027-1028.) In so holding, this Court noted, “No evidence regarding the circumstances of the alleged spousal rape was admitted, only the fact that the charge had been brought and tried and that defendant had been acquitted.” (/d. at p. 1028.) Clark’s reliance on Edelbacher is misplaced. The situation in Edelbacher was fundamentally different than this case. In Edelbacher, the prosecution had to show that the defendantkilled his wife in retaliation for her testifying against him in his previous spousal rape trial. The motive wasnot to avoid conviction for the spousal rape charge; indeed,that trial was complete at the time of the murder and the defendant had been acquitted. The motive instead was revenge for her taking the stand against him inthe first instance. It was the act of testifying and not what she hadtestified to that motivated the murderin Edelbacher. Here, Ardell Williams was murdered not out of revenge for her testimony, but to prevent her from testifying in the first instance. Accordingly, in order for the jury to assess the quality ofClark’s motive, they would have to know what he believed Williams was goingto testify to at trial. Only then _ could the jury assess whetherher potential testimony was ofsufficient gravity that it would provide Clark with a motive for murder. Accordingly, unlike Edelbacher, introducing the statements themselves, and not merely evidence that Williams had made statements to the grandjury and police, wascritical to 99 establish Clark’s motive and the statements were properly admitted for non-hearsay purposes. Accordingly, the trial court properly admitted ‘Williams’s statements for these highly relevant non-hearsay purposes. XXIV. THE TRIAL COURT PROPERLY DENIED CLARK’S MOTION TO SUPPRESS THE 6,000 LETTERS SEIZED BY ORANGE COUNTY JAIL PERSONNEL BECAUSE HE HAD NO LEGITIMATE EXPECTATION OF PRIVACY IN HIS NON-LEGAL JAIL MAIL AND, THEREFORE, THE MAIL COVER PROCEDURE DID NOT IMPLICATE HIS FOURTH AMENDMENT RIGHTS Clark contends that the trial court improperly denied his motion to suppress the 6,000 letters seized by Orange County Jail personnel during his pretrial detention at the jail. (AOB 289-295.) Clark’s claim is without merit, as he had no legitimate expectation of privacy in his non-legal jail mail and, therefore, the jail procedure ofmonitoring his non-legal mail did not implicate his Fourth Amendmentrights. Asdiscussed in Argument VI, ante, when considering trial court’s denial ofa motion to suppress evidence, a reviewing court viewsthe record in the light most favorableto the trial court’s ruling, deferring to those express or implied factual findings supported by substantial evidence, and then independently reviews the trial court’s application of the law to the facts. (People v. Davis, supra, 36 Cal.4th at pp. 528-529.) Under the California Constitution, challenges to police searches and seizures are reviewed under federal constitutional standards. (People v. Woods, supra, 21 Cal.4th at p. 674.) This Court in People v. Davis, supra, 36 Cal.4th at 524-529, applied the ~ United States Supreme Court’s rulings in Bell v. Wolfish, supra, 441 U.S. 520 [99 S.Ct. 1861, 60 L.Ed.2d 447] and Hudson v. Palmer, supra, 468 U.S. 517 [104 S.Ct. 3194, 82 L.Ed.2d 393] and held that pretrial detainees have no 100 expectation ofprivacy under the Fourth Amendment. Without an expectation of privacy,jail inmates’ cells may be searched for any reason andtheir phone calls monitored without implicating the Fourth Amendment. (See People v. Davis, supra, 36 Cal.4th at pp. 526-528.) Although Davis did not address searches ofa jail inmate’s mail, this Court’s reasoning in Davis is equally applicable to searches of inmate mail. Thereis a long line of authority in the Courts of Appeal holdingthat, “Except where the communication is a confidential one addressed to an attorney, court or public official, a prisoner has no expectation of privacy with respect to letters posted by him. [Citations.]” (People v. Harris (2000) 83 Cal.App.4th 371, 375, citing People v. Garvey (1979) 99 Cal.App.3d 320, 323; People v. Phillips (1985) 41 Cal.3d 29, 80-81; People v. Manson (1976) 61 Cal.App.3d 102, 152; People v. Burns (1987) 196 Cal.App.3d 1440, 1454.) Here, Clark moved to suppress some 6,000 letters between Clark, Antoinette Yancey, and third-parties while Clark and Yancey were incarcerated in the Orange County Jail. (5 CT 1650-1655.) At the two-day hearing on the motion to suppress which began November 28, 1995, Investigator Grasso explained that he had requested Orange County Jail personnel implementa “mail cover’ofClark’s mail on July 20, 1994, based on concerns regarding information he received about a possible escape attempt and concerns for the safety of other witnesses in the case. (7 RT 1635, 1646-1649.) On August 30, 1994, the magistrate ordered that the “mail cover” be continued. (5 CT 1961-1962.) 22. Investigator Grasso explained that a “mail cover” is the process wherebyjail staff, after routinely removing inmate mail from the envelope and inspecting it for contraband, will photocopy the contents of the mail. (7 RT 1635.) 101 At the conclusion of the hearing, the trial court denied the motion to suppresstheletters seized aspart ofthe jail mail procedure. (8 RT 1827-1831.) In doing so, the trial court noted that it was “persuaded that Investigator Grasso’s concern for the safety of witnesses was subjectively valid, and supported by facts that he knew to be associated with his investigationin this case.” (8 RT 1828.) The court also noted that, the jail had in place long before Investigator Grasso availed himself of the procedure a policy and procedure for a mail cover, and at perhaps not the very earliest opportunity, but very soon after it was implemented there was a decision in the District Attorney’s Office to make this knownto the most appropriate person in the judicial sense by taking it to the magistrate before whom the hearing was pending. (8 RT 1828-1829.) Finally, the court notedthat, based on information received from Investigator Grasso and the defense at the hearing, there were no attorney-client privileged documents among the 6,000letters seized in the mail cover. (8 RT 1830.) Based on these facts, the trial court was wholly justified in concluding that Clark’s Fourth Amendmentrights were not implicated by the mail cover procedure. As discussed in ArgumentI, ante, the United States Supreme Court “has recognized public safety and institutional security as a legitimate penological interest. (Turnerv. Safley, supra, 482 U.S. at p. 91.) Investigator Grasso hadlegitimate and well-founded concerns that Clark had communicated with Yancey from the jail to arrange Williams’s murderand that he could use the jail mail system to threaten or harm other witnesses in the case. (8 RT 1828.) Further, regardless of the legitimate penalogicalinterest in surveilling Clark’s jail mail, he lacked any legitimate expectation of privacy in his non-legal jail mail. As Investigator Grassotestified, jail personnel openedall incoming and outgoing mail and inspected it for contraband. (7 RT 1653.) The court foundthis to be a well-established policy in the jail. (8 RT 1828-829.) 102 Further, no legal mail was intercepted in the mail cover. (8 RT 1830.) Accordingly, Clark had no expectation of privacy in his jail mail andthe trial court properly denied his motion to suppress evidence. (See People v. Harris, supra, 83 Cal.App.4th at pp. 375-376.) Moreover, even assuming the evidence obtained through the mail cover should have been suppressed, any error was harmless. The erroneousdenial of a motion to suppress evidence based on a violation of a defendant’s Fourth Amendmentrights will not result in a reversal of the judgment where the error is shown to be harmless beyond a reasonable doubt according to the standard for federal constitutionalerrorarticulated in Chapmanv. California, supra, 386 USS. at p. 24. (People v. Tewksbury (1976) 15 Cal.3d 953, 972.) Any error in denying Clark’s motion to suppress evidence was manifestly harmless beyond a reasonable doubt because, as discussed in Argument XXVI, post, the prosecution ultimately elected not to introduce the 6,000 pagesofletters between Clark and Yanceyseizedas part of the Orange County Jail mail cover procedure. (16 RT 3250-3252.) Accordingly,the letters could not have had any conceivable impact on thejury’s verdict. Any error was harmless beyond a reasonable doubt. XXV. THE TRIAL COURT PROPERLY FOUND THAT JEANETTE MOORE’S TESTIMONY WAS NOT THE PRODUCT OF OUTRAGEOUSPOLICE CONDUCTAND ITS ADMISSION DID NOT VIOLATE CLARK’S DUE PROCESS RIGHTS Clark contends that Jeanette Moore’s testimony should have been excluded both at the preliminary hearing and attrial because it was the product of outrageous police conduct and violated his due process rights. (AOB 296-306.) However, the trial court properly admitted Moore’s testimony 103 because no misconduct, much less the sort of torture or police state tactics required to establish a due process violation, occurred. As a matter ofstate law,a trial court’s decision regarding the admission of evidence will not be disturbed on appeal absent an abuse ofdiscretion. (People v. Waidla (2000) 22 Cal.4th 690, 717-718.) Ordinarily,issues relating to the admission of evidence do not implicate the federal Constitution, but involve the application of state law rules of evidence. (See People v. Cudjo (1993) 6 Cal.4th 585, 611.) However,this Court has acknowledged that, in someinstances,“courts analyzing claimsofthird party coercion have expressed someconcern to assure the integrity ofthejudicial system” by vindicating a due process right of the defendant in this context. [Citations.] A recent decision ofthe Tenth Circuit Court ofAppeals,for example, recognizes that the unreliability of a coerced confession of a third personis not the sole reason forits exclusion from evidence: “‘It is unthinkable that a statement obtained bytorture or by other conduct belonging only in a police state should be admitted at the government's behest in order to bolster its case... . Yet methods offensive when used against an accused do not magically become any less so when exerted against a witness.’ ” (Clanton v. Cooper (10th Cir.1997) 129 F.3d 1147, 1158.) (People v. Jenkins, supra, 22 Cal.Ath at p. 968.) Clark first moved to exclude Jeanette Moore’s testimony at the preliminary hearing, arguing to the magistrate that Investigator Grasso falsely led Mooreto believe that Clark was responsible for an attempt on herlife in Arizona, thereby creating a motive for her to present damaging testimony against Clark. (1 MCCT 263-267.) The magistrate denied the motion and permitted Mooreto take the oath andtestify at the preliminary hearing. (I MCRT 157.) During the preliminary hearing, Clark’s counsel questioned Moore at length regarding her interview in Arizona with Investigator Grasso. (II MCRT 284-288, 347-356.) 104 Moore explained that Investigator Grasso and the Chandler, Arizona police had told her about Clark being responsible for Ardell Williams’s murder and about a homeinvasion incident where men entered a home in Arizona Moorehadstayedin andfired guns and were heardto say, “Whereis that bitch at?” Although Investigator Grasso did not expressly say that Clark was responsible for the home invasion incident or that she was the target, Moore assumed so because the person who was in the houseat the time survived the incident, which Mooredid not believe would have been the case had she been the person the men were looking for, and therefore she assumed that they had been looking for her. (I MCRT 349-352.) Priorto trial, Clark again movedto exclude Jeanette Moore’s testimony based on “outrageouspolice conduct.” Clark claimedthat Investigator Grasso falsely led Moore to believe that Clark was responsible for an attempt on her life, thereby creating a motive for her to present damaging testimony against Clark. (2 CT 547-558.) Ata hearing on the motion, Investigator Grassotestified that, when he first interviewed Moore in Arizona, he was aware of a home invasionincident in Arizona, in which two men went to a house where Moorehadpreviously been staying, fired several rounds inside the house, and were heard to say, “Where’sthe bitch?” (13 RT 2673, 2682.) Based on the fact that Yancey had called Moore and sent her money and wastherefore aware of her location in Arizona and the fact that Williams had been murdered to prevent her from testifying, Investigator Grasso was concerned that the homeinvasion incident could have been anattempt onherlife and that she could be in danger.” (13 RT 2674-2676.) 23. Investigator Grasso had also learned from Arizonapolice that the person living at the houseat the time of the home invasion incident indicated a beliefthat her ex-husbandor boyfriend was responsible. (13 RT 2676-2677.) 105 The trial court denied Clark’s motion to exclude Moore’s testimony, explaining, The court, first of all, does not believe that there was any intentional or bad faith action by Officer Grasso in his communicating what he knew about the Chandler incident to Jeanette Moore. I am convinced that Officer Grasso entertained a very real concern for the safety of witnesses or potential witnesses in this hearmg. And although the parties agree, and it would appear from the evidence that certainly there was no connection between that home invasion incident in Chandler, and [Clark], that Officer Grasso’s discretion was not abused whenherelated that information to Ms. Moore, with his fears which he communicatedto her that she mightbe in real danger, and this could have been an attempt against her. (14 RT 2755-2756.) Asthetrial court found, Investigator Grasso was conveying to Moore a possible danger based on information knownto him at the time in a sincere effort to protect other witnesses in the case. This sort oflegitimate public safety activity is precisely the sort ofbehavior expected oflaw enforcementandhardly amounts to the kind of “police state” tactics which this Court held could potentially implicate a defendant’s due process rights. (See People v. Jenkins, supra, 22 Cal.4th at p. 968.) At most, Clark contends that Moore was misled into believing that Clark could have been responsible for the homeinvasion incident in Arizonaandthat there could be further attempts on her life. Even ignoring, for the sake of argument, the trial court’s conclusion that Investigator Grasso acted in good faith (14 RT 2755) and assuming that he was attempting to mislead Moore, such conduct would not render her subsequenttrial testimony coerced or unreliable. Even in the context of criminal confessions, deception by police does not render a statement involuntary unless it is of the sort that is “reasonablylikely to procure an untrue statement.” (People v. Farnam (2002) 28 Cal.4th 107, 182.) 106 AnybeliefMoore may havehadthat she was in danger from Clark was not of the sort that would be reasonably likely to produce false testimony. Indeed, if Moore actually believed Clark meant to harm her, providing false, incriminating evidence against him would be far more likely to provoke retaliation from Clark than anything else Moore could have done. Indeed, ifshe truly wished to obviate any danger she perceived from Clark, she would have refused to cooperate with police, since, if she did not testify, Clark would have no reason to harm her. There is simply no evidence to support Clark’s contention that she testified falsely. Further, Investigator Grasso did not tell Moore about the home invasion incident to obtain incriminating statements from her to be used against Clark, but to secure her presence in court. Once in court, at both the preliminary hearing and attrial, she was sworn and subject to cross-examination by Clark’s ee eécounsel, which the United States Supreme Court has describedas the ‘greatest legal engine ever invented for the discovery of truth.’ ” (California v. Green (1970) 399 USS. 149, 158 [90 S.Ct. 1930, 26 L.Ed.2d 489], quoting 5 Wigmore, Evid., § 1367.) Clark was then able to attack Moore’s credibility and challenge the veracity of her testimony at great length. (43 RT 7723-7735; 44 RT 7751-7816.) The jury simply found his efforts at impeachment wanting. Accordingly, since Moore’s testimony was not procured throughtorture, tactics of a police state, or misconduct of anysort, the trial court properly rejected Clark’s motion to exclude her testimony based on police misconduct. (See People v. Jenkins, supra, 22 Cal.4th at p. 968.) 107 XXVI. THE TRIAL COURT DID NOT ABUSEITS DISCRETION UNDER EVIDENCE CODE SECTION 352 IN CONCLUDING THAT THE PROBATIVE VALUE OF LETTERS SHOWING THE INTENSE NATURE OF THE RELATIONSHIP BETWEEN CLARK AND YANCEY WASNOT SUBSTANTIALLY OUTWEIGHED BY ANY PREJUDICE ARISING FROM THE SEXUAL CONTENT OF THE LETTERS Clark contendsthat the trial court improperly overruled his Evidence Code section 352 objection to the introduction at trial of certain sexually explicit letters written between Clark and Yancey. (AOB 307-311.) The tnal court did not abuse its discretion under Evidence Code section 352, as the evidence was highly probative of the intense relationship between Clark and Yancey that underlay the conspiracy between the two to murder Ardell Williams and any potential prejudice was alleviated by the limiting instructions given to the jury. Evidence Code section 352 provides that a court, in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption oftime or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. Evidence will be found to be substantially more prejudicial than probative if “it poses an intolerable ‘risk to the fairness of the proceedings or the reliability ofthe outcome’[citation].” (People v. Waidla, supra, 22 Cal.4th at p. 724.) A reviewing court will only disturb a trial court’s ruling under Evidence Code section 352 weighing prejudice and probative value upon a showing of an abuseofdiscretion. (/bid.) Clark moved to exclude the 6,000 pages ofletters between Clark and co-defendant Yancey seized from Clark as part ofthe Orange County Jail mail cover procedure (see Argument XXIV,ante). Clark contendedthat the sexually explicit nature of the letters rendered them unduly prejudicial and subject to 108 exclusion pursuant to Evidence Code section 352. (5 CT 1647-1649.) Clark later expanded his Evidence Codesection 352 objection to includeletters seized during the search of Yancey’s apartment and car. (5 CT 1997-1998.) The prosecution elected not to introduce the 6,000 pages ofletters between Clark and Yanceyseizedas part ofthe Orange County Jail mail cover procedure. (16 RT 3250-3252.) Thetrial court overruled Clark’s Evidence Code section 352 objection to the 10 sexually explicit letters from Clark to Yancey seized from Yancey’s apartment. (15 RT 3062-3064.) Thetrial court explained, The court, making a general ruling, finds that these letters are admissible. These documents are admissible. The court finds that they do have probative value, that they are not so inherently prejudicial that weighing under 352 that, except for some areas I'm going to look at morespecifically, there is any reason to exclude them onthatbasis. Again, I believe as the People have argued, that the relationship between the alleged conspirators is always, in any conspiracy is always important, and in this case perhaps doubly so because weare talking aboutthe association that allegedly leads one womanto kill another, to aid andassist at the behest ofher lover. So certainly the relationship has probative value. I will hear, having madethat general ruling, I will hear specifics on individual pages or documents. I'm going to just throw out some general comments on how I feel about the general content. Certainly the amorous portion of the letters is in some instances perhaps offensive to some people, could be. On the other hand, weare dealing with 12 adult jurors plus alternates, and I think they can accept the sexual connotations in the general correspondence. (15 RT 3062-3063.) The letters between Clark and Yancey that were seized during the search ofYancey’s apartment were subsequently admitted into evidenceattrial. (55 RT 9566-9571, 9574-9579, 9581.) 109 Thetrial court did not abuseits discretion in ruling that the letters were admissible. The trial court correctly noted that the probative value ofthe letters was great. The sexual content, though perhaps distasteful to some jurors, was essential to show how close Yancey was to Clark and how heutilized sexuality to manipulate her into conspiring with him to murder Williams. This could only be shown through the letters themselves. A stipulation to an “intense personal relationship” would simply not have conveyed the intensity of the relationship and the characterofthe interactions between Clark and Yancey and demonstrated to the jury that this relationship could form the basis for a conspiracy to murder another humanbeing. Thetrial court then expressly weighed the tremendousprobative value ofthe evidence against the possibility ofprejudice. While the court recognized that the sexual content could be distasteful to some, the court expressly found that the jurors would not be unduly influenced by the sexual content of the letters. In each instance, when the letters were presented to the jury, the court admonished the jurors that the evidence was only intended to show the relationship between Clark and Yancey, and that the letters must not be considered as showing that Clark was a person ofbad character, how hetreated womenin general, or for any other purpose. (55 RT 9568-9569, 9574-9575, 9581.) This limiting instruction waslater provided to the jury in written form as part of their packet ofjury instruction in the case. (7 CT 2670.) Accordingly,the trial court did not abuseits discretion under Evidence Code section 352 in finding that the probative value of the letters was not substantially outweighed by any possible prejudice arising from their sexual content. (See People v. Waidla, supra, 22 Cal.4th at p. 724.) 110 XXVII. AN OFFER TO STIPULATE TO A CLOSE OR INTIMATE RELATIONSHIP BETWEEN CLARK AND YANCEY WOULD NOT HAVE ADEQUATELY CONVEYED THE CHARACTER OF THE RELATIONSHIP BETWEEN THE TWO AND WOULD HAVE DEPRIVED THE PROSECUTION’S EVIDENCE OF ITS FULL FORCE AND EFFECT Clark contendsthat it was improperto introduce into evidence sexually explicit letters between Clark and Yancey because he waswilling to stipulate toa “close relationship” between the two. (AOB 312-315.) However, no such stipulation was offered by Clark and, regardless, the prosecution could not be forced to accept such a stipulation because it would cause the prosecution’s evidenceto loseits full force and effect. | In People v. Hall (1980) 28 Cal.3d 143, 152, overruled on other grounds in People v. Newman (1999) 21 Cal.4th 413, 422, fn. 6, abrogated by constitutional provision on other grounds as stated in People v. Valentine (1986) 42 Cal.3d 170, 177-181, this Court stated that when, a defendant offers to admit the existence of an element of a charged offense, the prosecutor must accept that offer and refrain from introducing evidence . . . to prove that element to the jury. (Accord, People v. Bonin (1989) 47 Cal.3d 808, 848-849.) Ifa fact is not genuinely disputed, evidence offered to provethat fact is irrelevant and inadmissible under Evidence Codesections 210 and 350 respectively. [Citations.] (People v. Hall, supra, 28 Cal.3d at p. 152.) However,“[t]he general rule is that the prosecution in a criminal case cannot be compelled to accept a stipulation if the effect would be to deprive the state's case of its persuasiveness and forcefulness. [Citations.]” (People v. Edelbacher, supra, 47 Cal.3d at p. 1007; accord, People v. Sakarias (2000) 22 Cal.4th 596, 629; People v. Scheid (1997) 16 Cal.4th 1, 16-17; People v. Arias 111 (1996) 13 Cal.4th 92, 131; People v. Garceau (1993) 6 Cal.4th 140, 182, abrogated on other grounds in People v. Yeoman, supra, 31 CalAth at pp. 117-118.) This includes circumstances where a defendant’s offer to stipulate is "‘ambiguous in form or limited in scope . . .” the evidence retains some probative value and is admissible. [Citation.]” (People v. Hall, supra, 28 Cal.3d at p. 153; see also, e.g., People v. Bonin, supra, 47 Cal.3d at p. 848 [offer to stipulate to only part of testimony properly refused]; Old Chief v. United States (1997) 519 U.S. 172, 186-187 [117 S.Ct. 644, 136 L.Ed.2d 574] (“a criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the Government choosesto presentit.”].) Although Clark characterizes his trial counsel’s argument against admitting the letters as offering a stipulation to a “close relationship” between Clark and Yancey (AOB 312-315; 15 RT 3053-3061), Clark’s counsel merely argued that a relationship between Clark and Yancey could be established without the letters being introduced into evidence, through the jail telephone and visitation records. This hardly amountedto a stipulation as to an element of an offense, or a stipulation as to anything at all. Indeed, a stipulated fact is one considered proven by agreementofthe parties, without resort to evidence. (See CALJIC Nos. 1.00, 1.02 (April 2006 ed.).) Therefore, by arguing that a close relationship could be proven by other evidence in the case, Clark’s counsel was, by implication not offering to stipulate to such a relationship. However, even if this could be construed as an offer to stipulate to a close relationship between Clark and Yancey, the letters showed much more than a mereclose or intimate relationship between the two. The prosecution’s theory of the case was that Clark, who wasincarcerated at the Orange County Jail, conspired with, and somehow persuaded Yancey to arrange Ardell Williams’s murder. Yancey’s participation in Williams’s murder could not easily be explained by merely a close or intimate relationship with Clark, which Clark claims he waswilling to stipulate to. It would have been improperto 112 compelthe prosecution to accept a stipulationto a close or intimate relationship between Clark and Yanceyas it would have deprived the prosecution’s case and theory of motive of its “persuasiveness and forcefulness.” (See People v. Edelbacher, supra, 47 Cal.3d at p. 1007.) Instead, the prosecution could and did prove that the relationship between Clark and Yancey was not merely close and intimate. The character of this relationship was perhaps most clearly demonstrated by entries from Yancey’s diary, which was also admitted into evidence attrial by stipulation of the parties. (62 RT 10557.) As an excerpt from the diary read by the prosecutor during closing argument demonstrated: I spoke with [Clark] tonight for the first time in months. His voice told me so much. I've learned tonight exactly how helies. He's anartist, you know,and he's very good at deception. I love the wayhelies to me. Hetakes meto the brink of losing control with his mannerisms and arrogance. But more than anything, the fact that I scare the hell out of - I scare the hell out ofhim makes myheart palpate and mypanties wet. He makes meafraid of myself. I feel so many emotions when I deal with him that it gives me power... . (65 RT 10872.) The relationship between Clark and Yancey was characterized by manipulation, and sexuality was one ofthe tools Clark utilized in manipulating and controlling Yancey. This was demonstrated through the letters between Clark and Yancey found in Yancey’s apartmentand could not have been shown by a stipulation to a merely close or intimate relationship. 113 XXVIII. THE TRIAL COURT PROPERLY ADMITTED THE LETTER AND NEWSPAPER CLIPPING SENT TO JEANETTE MOORE TO DISSUADE HER FROM TESTIFYING AS EVIDENCE OF CLARK’S CONSCIOUSNESS OF GUILT BECAUSE THERE WAS SUBSTANTIAL EVIDENCE TO CONNECT CLARKTO THE LETTER Clark contends that the trial court improperly admitted a letter and newspaperarticle“ sent to Jeanette Moore in the Orange County Jail which sought to persuade her notto testify in Clark’s trial because there was no evidence to connect Clark to the letter and it was therefore irrelevant to show Clark’s consciousnessofguilt. (AOB 316-320.) However, there was sufficient evidence presented attrial linking Clark to the letter and thereby establishing its relevance andthe trial court properly exercisedits discretion in admitting the letter and article. Evidence Code section 350 provides for the admission of relevant evidence. Evidence Code section 210 defines relevant evidence as evidence “having any tendency in reason to prove or disprove a disputed fact... .” Evidenceofa third party’s efforts to threaten or dissuade a witnessis relevant to show a criminal defendant's consciousness of guilt where the defendantis present during, or authorizes, the effort. (People v. Williams (1997) 16 Cal.4th 153, 200-201.) Where the relevance of evidence depends on the existence of a preliminary fact, such as whether a defendant authorized a third-party’s effort to dissuade a witness,the trial court mustfind that there is sufficient evidence for the “trier of fact to reasonably find the existence of the preliminary fact by a preponderanceofthe evidence.” (Evid. Code, § 403, subd. (a)(1); Peoplev. Guerra (2006) 37 Cal.4th 1067, 1120.) ‘“The court should exclude the 24. The text of the letter and article are found at 6 CT 2242-2245. 114 proffered evidence only if the “showing of preliminary facts is too weak to 99 9 99support a favorable determination bythe jury. (Ibid., quoting People y. Lucas, supra, 12 Cal.4th at p. 466.) A trial court has broad discretion to determine the relevance ofevidence andthe sufficiency ofthe foundational evidence establishing that relevance and its exercise of discretion “is not grounds for reversal unless * “the court exercisedits discretion in an arbitrary, capricious or patently absurd mannerthat resulted in a manifest miscarriage ofjustice.” ’ [Citations.]” (People v. Ochoa, supra, 26 Cal.4th at pp. 437-438; see also People v. Guerra, supra, 37 Cal.4th at p. 1120; People v. Cunningham, supra, 25 Cal.4th at p. 995.) Clark moved to exclude a letter and newspaperarticle sent to Jeanette Mooreseeking to dissuade her from testifying at Clark’s trial. Clark argued there was no evidence to connect Clark to the letter and article and, therefore, it was irrelevant, as well as unduly prejudicial under Evidence Code section 352. (7 CT 2448-2450; 38 RT 6796-6797.) The prosecution madean offer of proofthat the fingerprints of Sean Birney,2”another inmate housedin the same modulein the Orange County Jail with Clark, was found on both the envelope andletter to Jeanette Moore andthe letter to Alonzo Garrett over which Clark claimed ownership after it was confiscated from Clark’s cell. (38 RT 6784-6793, 6797-6802.) The trial court accepted the prosecution’s offer of proof and denied Clark’s motion to excludethe letter and newspaperarticle, finding a “sufficient nexus” between Clark andthe letter to render it relevant to show consciousness of guilt as an attempt to dissuade a witness. Thetrial court further concluded that the evidence was not inflammatory and that the probative value of the evidence outweighedits prejudicial effect. (38 RT 6803-6804.) 25. Birney’s namealso appearslater in the Reporter’s Transcript with the spelling “Burney.” (64 10579.) 115 The trial court properly exercised its discretion in finding thatthe letter to Jeanette Moore wasrelevant. Attrial, the prosecution presented evidence in conformity withits earlier offer ofproof that Sean Birney’s fingerprints were found on the envelope andletter to Jeanette Moore and on letter to Alonzo Garrett found in Clark’s cell. (47 RT 8286-8293; 57 RT 9939-9942.) After the letter to Garrett was confiscated, Clark admitted to Deputy Desensthat theletter to Garrett belonged to him and askedfor its return. (57 RT 9943-9944.) Clark’s acknowledgment of ownership would enable the jury to concludethat Clark had authorizedthe creation ofthe letter to dissuade Garrett, as well as the further inferencethat, ifhe had authorized Birney’s efforts to dissuade Garrett, he had authorized Birney’s efforts to dissuade Moore as well. The jury could conclude from this evidence that Clark wasutilizing Birney to authorletters to dissuade witnessesin the case from testifying at trial. This was sufficient to establish the relevance of the Jeanette Moore letter to show Clark’s consciousness of guilt. (See People v. Williams, supra, 16 Cal.4th at pp. 200-201.) However, even assumingthe trial court improperly admitted the letter sent to Jeanette Mooreinjail, any error was harmless. Errorin the “application of ordinary rules of evidence” is reviewed underthe harmless error standard articulated in People v. Watson, supra, 46 Cal.2d at 836, and will only result in reversal whereit is reasonably probable that the defendant would havereceived a more favorable outcome had the challenged evidence not been admitted. (People v. Harris, supra, 37 Cal.4th at p. 336.) As discussed in Argument X, ante, there was overwhelming circumstantial evidence of Clark’s guilt independent of the letter sent to Jeanette Moore and it is not reasonably probable that Clark would have obtained a more favorable outcome had the letter not been admitted into evidence. 116 XXIX. THE TRIAL COURT PROPERLY RULED THAT CO- DEFENDANT ERVIN’S STATEMENTS,“OH, MY GOSH, NOT A 187, PLEASE LADY, DON’T DIE,” MADE AT THE COMP USA STOREWERE ADMISSIBLE BOTH AS NON-HEARSAY EVIDENCE OF ERVIN’S STATE OF MIND AND AS SPONTANEOUS STATEMENTS UNDER EVIDENCE CODE SECTION 1240 MADE TO EXPLAIN THE SHOOTING OF KATHY LEE Clark contends that he was prejudiced bythe trial court’s evidentiary ruling regarding co-defendant NokkuwaErvin’s statements, “Oh, my gosh, not a 187, please, lady, don’t die,” overheard by police at the time ofhis arrest at the Comp USAstore. Clark complains he would have offered the statement into evidence if the trial court had only ruled the statement admissible as non-hearsay circumstantial evidence ofErvin’s state ofmind, and notfor their truth. (AOB 321-324.) However, Clark failed to challenge the trial court’s ruling that the statements were admissible for their truth as spontaneous statements, forfeiting the claim on appeal. Further, the trial court properly ruled that the statements were admissible both for their truth, as spontaneous statements, and as non-hearsay. Clark never challengedthetrial court’s ruling that Ervin’s statementsat the Comp USAstore were admissible for their truth under Evidence Code section 1240 as spontaneous statements. (47 RT 8329-8335; 60 RT 10211-10219.) In fact, at the first hearing regarding the admissibility of the statements, Clark’s trial counsel expressly characterized the statements as “a spontaneous declaration that showsstate of mind.” (47 RT 8332.) Clark’s failure to make an objection forfeits the claim on appeal. (Evid. Code, § 353; _ see People v. Harrison, supra, 35 Cal.4th at p. 239; People v. Szeto, supra, 29 Cal.3d at p. 32.) Clark continues to fail to challenge the admissibility of Ervin’s statements under Evidence Code section 1240, instead attacking the statements 117 under Evidence Code section 1250, the state ofmind exception to the hearsay rule, a ground on whichthe statement wasnot offered andthetrial court never tuled. (AOB 321-322.) A hearsay statement is admissible as a spontaneous statement whereit “purports to narrate, describe, or explain, an act, condition, or event perceived by the declarant”andis “made spontaneously while the declarant was underthe stress of excitement caused by such perception.” (Evid. Code, § 1240; People v. Morrison (2004) 34 Cal.4th 698, 718.) A trial court “must considereach fact pattern on its own merits and is vested with reasonable discretion in the matter.” (Id. at p. 719.) A reviewing court will uphold a trial court’s factual determination that a statement qualifies as a spontaneous statement if it is supported by substantial evidence and will review the ultimate decision whether to admit the evidence for abuse of discretion. (People v. Phillips (2000) 22 Cal.4th 226, 236.) Prior to Clark’s cross-examination ofLieutenant Griswold, who helped Officer Rakitis arrest co-defendant Ervin at the Comp USAstore and recovered the .38 revolver from his pocket, the prosecution objected to the introduction of Ervin’s statements madeat the scene, “Oh, my gosh,not a 187,please, lady, don’t die,” which Clark soughtto introduce to show that Ervin did not intend to kill Kathy Lee during the Comp USA robbery,” as hearsay. (47 RT 8329-8330.) The trial court overruled the objection and ruled that the statements would be admissible for their truth under Evidence Code section 1240, the hearsay exception for spontaneous statements. (47 RT 8334-8335.) 26. Clark argued that evidence of Ervin’s state of mindorintent with respect to Kathy Lee’s murder was relevant to show that Clark, who was prosecuted for Lee’s murderas an aider and abettor in the robbery and murder under Penal Code section 190.2, subdivision (a)(17), did not act with reckless indifference to humanlife. (47 RT 8333-8334; Pen. Code, § 190.2, subd. (d).) 118 Clark did not seek to introduce Ervin’s statements through Lieutenant Griswold’s testimony, but later movedto introducethe statements,not for their truth, but as circumstantial evidence of Ervin’s state ofmind and non-hearsay. (7 CT 2579-2581.) Clark’s counsel sought to limit the evidence to its non-hearsay purpose to avoid subjecting the statements to impeachment. (60 RT 10215.) Thetrial court ruled that the statements would be admissible both for their truth and as non-hearsay evidence of Clark’s state of mind. (60 RT 10217.) Clark then elected not to present the evidenceto avoid the introduction of other statements made by Ervin for impeachment. (60 RT 10218.) The trial court properly concluded that Ervin’s statements were admissible for the non-hearsay purpose ofdemonstrating Ervin’sstate ofmind. (60 RT 10217; see People v. Cox (2003) 30 Cal4th 916, 962-963,citing People v. Ortiz (1995) 38 Cal.App.4th 377, 389.) Thetrial court was similarly correct in concluding that Ervin’s statements were also admissible as spontaneous statements under Evidence Codesection 1240. Ervin’s statements, made at the scene almost immediately after the shooting ofKathy Lee, were certainly made while he was underthe stress and excitement of the shooting and served to describe and explain the act of shooting Kathy Lee, which he not only perceived, but committed. By describing the event as a “187,” the Penal Codesection for murder, Ervin was in a very real sense explaining what had happened to Kathy Lee, who was lying on the ground bleeding nearby, and indicating his identity as the perpetrator. Thetrial court did not abuseits discretion in ruling that the statements would be admissible for this purpose under the hearsay exception for spontaneous statements. (See Evid. Code, § 1240; People v. Morrison, supra, 34 Cal.4th at pp. 718-719.) However, even assuming the trial court improperly ruled that Ervin’s statements were admissible under Evidence Codesection 1240, any error was harmless. Error in the “application ofordinary rules of evidence”is reviewed 119 under the harmless error standard articulated in People v. Watson, supra, 46 Cal.2d at 836, and will only result in reversal where it is reasonably probable that the defendant would have received a more favorable outcome had the challenged evidence not been admitted. (People v. Harris, supra, 37 Cal.4th at p. 336.) There was overwhelming circumstantial evidence of Clark’s culpability in the murder ofKathy Lee, and that, as required under Penal Code section 190.2, subdivision (d), Clark was a majorparticipant in the Comp USA robbery who acted with reckless indifference to humanlife. Asthis Court has noted, “reckless indifference to human life” is commonly understood to mean that the defendant was subjectively aware that his or her participation in the felony involved a graverisk of death. (People v. Estrada (1995) 11 Cal.Ath 568, 577.) The evidence here overwhelmingly established that Clark meticulously planned every aspectofthe robbery, surveilling the target, acquiring and prepositioning the U-Haultruck, and recruiting the participants, each with a distinct and specific role to play in the commission ofthe crime. Not only did Clark’s preparationsindicate a clear purposeto succeedin the robbery, but great pains were also taken to ensure that the participants, and primarily Clark himself, would be able to escape detection and arrest afterward. This is demonstrated by the care with which Clark used Jeanette Moore andherfalse driver’s license to obtain the U-Haul and how his brother recruited Matthew Weaverwith a story about moving computers from his brother’s store. Based on Clark’s meticulous planning ofevery aspect ofthe Comp USA robbery, the jury could only conclude that he was subjectively aware of how Ervin was to subdue the store employees in order to gain access to the merchandise inside, namely with the gun and handcuffs. It could not have escaped Clark’s notice that such a plan would create a grave risk that someone could be harmed during the robbery’s execution, whether intentionally or be 120 accident or misadventure. The very real possibility that someone would be harmed during the course ofthe robbery was simplya calculated risk that Clark wasprepared to take in conceiving and executing the planned robbery. Ervin’s statements would not have altered this conclusion andit is not reasonably probable that Clark would have obtained a more favorable result had the statements been admitted and limited to their non-hearsay purpose. XXX, THE TRIAL COURT PROPERLY DENIED CLARK’S MOTION TO SUPPRESS LIZ FONTENOT’S TAPE RECORDING OF HER CONVERSATIONS WITH CLARKBECAUSE FONTENOT WASA PARTYTO THE CONVERSATIONS AND THEREFORE DID NOT VIOLATE THE FEDERAL WIRETAPPING STATUTE Clark contendsthe trial court improperly denied his motion to suppress the tape recordings made by Ardell Williams’s sister Liz Fontenot of her conversations with Clark because they were obtainedin violation ofthe federal wiretapping statute. (AOB 325-329.) However,thetrial court properly denied the motion because the federal wiretapping statute expressly allowsa party to a conversation to record that conversation without the other party’s knowledge or consent. Title II ofthe Omnibus Crime Control and Safe Street Act of 1968 (18 U.S.C. §§ 2510-2520) “provides a ‘comprehensive schemefor the regulation ofwiretapping andelectronic surveillance.’ ” (People v. Otto (1992) 2 Cal.4th 1088, 1097.) The federal statute provides for exclusion as a remedy to a violation ofits prohibition against illegal interception ofcommunications. (18 U.S.C. § 2515; People v. Otto, supra, at p. 1098.) However,Title III expressly providesthat it is not unlawful under the Act for a person who is a party to a communication to intercept that communication. (18 U.S.C. §§ 2511(2)(c) [party acting under color of law]; 121 2511(2)(d) [party not acting under color of law]; People v. Otto, supra, 2 Cal.4th at p. 1097; see also U.S. v. Shryock (9th Cir. 2003) 342 F.3d 948, 977-978; United States v. King (9th Cir. 1976) 587 F.2d 956, 962.) Asthis Court succinctly put it, “one party may record a conversation without the knowledgeor consentof the other.” (Ibid.) Clark, in a response to the prosecution’s opposition to his motion to suppress evidence, arguedthat the telephone conversations between Clark and Ardell Williams’s sister Liz Fontenot, recorded at Investigator Grasso’s behest, should also be suppressed, contending that the recordings were made in violation of the federal wiretapping statute. (5 CT 1988-1989.) During the hearing on the motion, Clark’s counsel expanded his argument to assert alleged violations of both federal and state wiretapping statutes as a basis to exclude the tape recorded conversations.” (14 RT 2784.) After hearing the argumentsofthe parties, the trial court denied the motion on both federal and state law grounds. (14 RT 2812-2818.) Here, as Investigator Grasso testified at the hearing on the motion to suppress the tape recordings, Liz Fontenot agreed to Investigator Grasso’s request that she record her conversations with Clark. (14 RT 2788.) As a party to the conversations, Title ITI expressly allowed herto record the conversations, even without Clark’s knowledge or consent. 18 U.S.C. §§ 2511(2)(c); 2511(2)(d); People v. Otto, supra, 2 Cal.4th at p. 1097; see also U.S. v. Shryock, supra, 342 F.3d at pp. 977-978; United States v. King, supra, 587 F.2dat p. 962.) Accordingly, the trial court properly denied Clark’s motion to suppress the tape recordings made by Liz Fontenot because no violation of the federal wiretapping statute occurred. 27. Clark’s state law wiretapping claim will be addressed in Argument XXX], post. 122 XXXII. THE TRIAL COURT PROPERLY DENIED CLARK’S MOTION TO SUPPRESS THE TAPE RECORDED CONVERSATIONS BETWEEN HIMSELF AND ARDELL WILLIAMS’S SISTER LIZ FONTENOT BECAUSE FONTENOT RECORDED THE CONVERSATIONS AT THE DIRECTION OF INVESTIGATOR GRASSO WITHIN THE MEANING OF PENAL CODE SECTION 633 . Clark contendsthetrial court improperly denied his motion to suppress the tape recordings made by Ardell Williams’s sister Liz Fontenot of her conversations with Clark because they were obtained in violation of the California eavesdropping statute. (AOB 325-329.) However, the trial court properly denied the motion because Fontenot recorded the conversationsat the direction ofInvestigator Grasso within the meaning ofPenal Code section 633. Penal Code section 632% pertinently provides: (a) Every person who,intentionally and without the consentofall parties to a confidential communication, by means of any electronic 28. Although the federal wiretapping statute discussed in Argument XXX, ante, makes no distinction between wiretapping and eavesdropping, referring only to the interception of communications (see 18 U.S.C. § 2511), California law treats the two acts separately. Penal Code section 631 prohibits “wiretapping,”i.e., intercepting communications by an unauthorized connection to the transmission line. Penal Code section 632 prohibits “eavesdropping,”i.e., the interception ofcommunicationsby the use of equipment which is not connected to any transmission line. (People v. Ratekin (1989) 212 Cal.App.3d 1165, 1168.) Althoughthetrial court referred to the wiretapping statute, Penal Code section 631 (14 RT 2818), ‘ it appears Fontenot’s use of a tape recorder to record her conversations with Clark did not involve the connection of the recording equipment to the transmission line and therefore implicated Penal Code section 632, the eavesdroppingstatute. 123 amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by meansof a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or imprisonmentin the county jail not exceeding oneyear, or in the state prison, or by both that fine and imprisonment. If the person has previously been convicted ofa violation of this section or Section 631, 632.5, 632.6, 632.7, or 636, the person shall be punished bya fine not exceeding ten thousand dollars ($10,000), by imprisonment in the countyjail not exceeding oneyear,or in the state prison, or by both that fine and imprisonment. 1..4 (d) Except as proof in an action or prosecution for violation ofthis section, no evidence obtained as a result of eavesdropping upon or recording a confidential communicationin violationofthis section shall be admissible in any judicial, administrative, legislative, or other proceeding. However, Penal Code section 633 creates an exception to section 632's general prohibition on eavesdropping. Penal Code section 633 provides: Nothing in Section 631, 632, 632.5, 632.6, or 632.7 prohibits the Attorney General, any district attorney, or any assistant, deputy, or investigator ofthe Attorney Generalor anydistrict attorney, any officer of the California HighwayPatrol, any chief ofpolice, assistant chiefof police, or police officer of a city or city and county, any sheriff, undersheriff, or deputy sheriff regularly employed and paid in that capacity by a county, police officer ofthe County ofLos Angeles, or any person acting pursuant to the direction of one of these law enforcement officers acting within the scope ofhis or her authority, from overhearing or recording any communication that they could lawfully overhear or record prior to the effective date of this chapter. Nothing in Section 631, 632, 632.5, 632.6, or 632.7 renders inadmissible any evidence obtained by the above-narned persons by meansof overhearing or recording any communication that they could lawfully overhearor record prior to the effective date of this chapter. 124 Where the admissibility of evidence depends on some preliminary factual determination, the trial court “shall determine the existence or nonexistence of the preliminary fact and shall admit or exclude the proffered evidenceas required bythe rule oflaw under which the question arises.” (Evid. Code, § 405, subd. (a).) A trial court has broad discretion in determining the admissibility of evidence and a reviewing court will only disturba trial court’s exercise of that discretion upon a showing of an abuse of discretion. (People v. Waidla, supra, 22 Cal.4th at p. 717.) As discussed in Argument XXX, ante, Clark, in a response to the prosecution’s opposition to his motion to suppress evidence, argued that the telephone conversations between Clark and Ardell Williams’s sister Liz Fontenot, recorded at the behest of Investigator Grasso, should also be suppressed, contending that the recordings were madein violation ofthe federal wiretapping statute. (5 CT 1988-1989.) During the hearing on the motion, Clark’s counsel expanded his argument to assert alleged violations of both federal and state wiretapping statutes as a basis to exclude the tape recorded conversations. (14 RT 2784.) With respect to Penal Code section 632, Clark’s counsel argued that, in order for the law enforcement exception in section 633 to apply, the prosecution had to “show that [the recording] was donein the ordinary course of the officer’s duty, and he wasacting within the scope of his authority” and that, because Investigator Grasso provided Fotentot with “absolutely no guidelines, no time, no place, nothing by wayof instruction” the taping exceeded the scopeofhis authority. (14 RT 2812-2813.) After hearing the arguments of the parties, the trial court denied the motion on both federal and state law grounds. (14 RT 2812-2818.) The court expressly noted that it was “satisfied that a sufficient foundation has been given at this hearing, and the materials on which counsel submitted to establish the necessary foundation.” (14 RT 2818.) 125 Thetrial court’s conclusion that Investigator Grasso wasacting within the scope ofhis authority as a law enforcementofficer when he requested that Liz Fontenot tape record her telephone conversations with Clark is fully supported by the record. Moreover, the trial court correctly concludedthat the law enforcement exception in section 633 applied. Accordingly, Penal Code section 632 wasnotviolated. As the Court of Appeal noted in People v. Towery (1985) 174 Cal.App.3d 1114, 1126, there is no case law “directly discussing the meaning of the phrase in section 633, ‘pursuant to the direction of one of the above-named law enforcement officers acting within the scope of his authority.” Towery involved a factual situation and legal challenge quite similar to those in the instant case. In Towery, a police officer investigating a conspiracy to steal andresell oil from a numberofpetroleum refineries directed an informantto recordall telephonecalls he received at his home regarding the stolen oil. (/d. at p. 1127.) The officer provided the informant with tapes for the recording, but the informantutilized his own tape recording equipment and police were not present when the recordings were made. (/bid.) The defendant argued that the lack ofpolice supervision in making the recordings rendered the exception in Penal Code section 633 inapplicable because the tapes could have beenaltered or conversationsselectively recorded. (Ibid.) The Court ofAppealrejected this argument, finding that “the looseness of law enforcementdirection to [the informant] in making the tape recordings properly goes to the weight given to those recordings and nottheir initial admissibility.” (/d. at p. 1129.) The directions provided by Investigator Grasso to Liz Fontenot in tape recording her conversations with Clark were even more specific than those received by the informant in Towery. At the hearing on Clark’s motion, Investigator Grassotestified that he gave the recording device to Fontenot and askedherto record “any” conversation she had with Clark. (14 RT 2788.) Far 126 from giving Fontenot “unfettered discretion,” as Clark’s counsel arguedattrial (14 RT 2813), Investigator Grasso’s instructions were actually quite narrow and specific. Fontenot was to record any conversation she had, regardless of the topic discussed, with a single individual, Clark, who was a suspect in the Comp USAcase, which Investigator Grasso was investigating in his official capacity as a law enforcementofficer. The recording was limited in scope to a single target and Fontenot had no discretion to select which conversations she would record and which conversations she would not, instead being instructed to record all ofthem. Further, any ambiguities in these directions would go to the weight of the tape recorded evidence, and not its admissibility. Accordingly, the trial court properly found that the law enforcement exception under Penal Code section 633 applied andthe tape recordings of the conversations between Clark and Fontenot were properly admitted. (/bid.) However, even assumingthe trial court improperly admitted the tape recordings, any error was harmless. Evidence admitted in violation of Penal Code section 632 will not result in the reversal ofthe judgement whereit is not reasonably probable that the defendant would have received a more favorable result had the evidence not been admitted. (People v. Ratekin, supra, 212 Cal.App.3d at pp. 1169-1170, citing People v. Watson, supra, 46 Cal.2d at p. 836.) As discussed previously, there was overwhelming circumstantial evidence of Clark’s guilt independent of the tape recorded conversations between Clark and Fontenot. Further, although Clark told Fontenot that he was concerned that the authorities were trying to link him to a crime in Orange County andthat he believed Williams was cooperating with the police (14 CT 5346-5408), there was ample evidence, independentofthese conversations, of Clark’s motive to murder Williams. This evidence included Williams’s grand jury testimony and Clark’s statements to Alonzo Garrett that Williams “could put me away.” (56 RT 9715.) Accordingly, any error in admitting the tape recorded conversations between Clark and Fontenot was harmless. 127 XXXII. THE TRIAL COURT PROPERLY ADMITTED SPECIAL AGENT TODD HOLLIDAY’S TESTIMONY REGARDING STATEMENTS MADE TO HIM BY ARDELL WILLIAMS REGARDING HER CONVERSATIONS WITH ERIC CLARK ABOUT THE COMP USA ROBBERY AND MURDER BECAUSE THE STATEMENTS DID NOT VIOLATE THE GENERAL PROHIBITION AGAINST HEARSAY OR THE CONFRONTATION CLAUSE Clark contendsthat the trial court improperly admitted double hearsay, in the form of statements made by Eric Clark to Ardell Williams, which Williams in turn related to FBI Special Agent Todd Holliday.” Heclaims this violated both state law and his rights under the Confrontation Clause. (AOB 338-343.) Clark waived his hearsay and confrontation challenges to Special Agent Holliday’s testimony by failing to object at trial and, regardless, the evidence was properly admitted under state and federal law. First, Clark did not make a hearsay objection in thetrial court to Clark’s or Williams’s statements as presented throughthe testimony of Special Agent Holliday. (52 RT 9204.) Clark’s failure to make an objection forfeits the claim on appeal. (Evid. Code, § 353; see People v. Harrison, supra, 35 Cal.4th at p. 239; People v. Szeto, supra, 29 Cal.3d at p. 32.) 29. Clark contends that his general in limine challenge to the admissibility of Ardell Williams’s statements under Evidence Code section 1350 was sufficient to preserve the issue for appeal. (AOB 338; 9 RT 1901-1950; 12 RT 2548-2594; 15 RT 2954-2970.) However, Evidence Code section 353, subdivision (a) requires a timely and specific objection to the proffered evidence, which did not occurin this case with respect to the specific testimony ofSpecial Agent Holliday now challenged on appeal. Indeed, as was discussed in Argument XXII, ante, Clark expressly and personally withdrew a hearsay challenge to Williams’s statements. (14 RT 2915-2922.) 128 However, even assuming Clark’s claim were properly before this Court, it is without merit. FBI SpecialAgent Todd Holliday was called as a witness by the prosecution to discuss statements made to him by Ardell Williams regarding Clark and the Comp USA robbery and murder case. (52 RT 9083-9111, 9126-9128.) When asked about the substance of a December31, 1991 phonecall with Williams, Special Agent Holliday explained, She basically - there were two areas that were discussed. Thefirst area concerned statements that Eric Clark had made to her, and the second concerned a drive she had taken with [Clark]. Thefirst thing she said that Eric Clark had told her, discussed with her how he and [Clark] had been involved in a robbery of a Comp U.S.A. in Fountain Valley. And from whathesaid to her, it sounded - she believed from what he said that Eric Clark and [Clark] had set the robbery up, that they had planned the robbery. Eric Clark told her that the - that there had been two robbers, that they had the people tied up, that something went wrong and a lady was killed. Eric Clark said that one of the robbers had shot this lady. But - there weren't supposedto be bullets in the gun. Eric Clark also told her that [Clark’s] B.M.W. had been seen. And I don't recall whether she said that Eric Clark told her that they had sold the B.M.W.or they were trying to sell the B.M.W. (52 RT 9104.) First, with respect to the statements of Eric Clark conveyed to Special Agent Holliday by Ardell Williams, as discussed at length in Argument XI, ante, Eric Clark’s statements were admissible both as non-hearsay evidence of a conspiracy to rob the Comp USAstore and under Evidence Codesection 1223 as statements ofa conspirator.” (See People v. Noguera, supra, 4 Cal.4th 30. Clark also contends that Special Agent Holliday’s testimony should have been excluded under Evidence Code section 352. (AOB 340-342.) However,his failure to object on Evidence Codesection 352 grounds (52 RT 129 at pp. 624-625 [statements admissible as non-hearsay]; People v. Hardy, supra, 2 Cal.4th at p. 139 [statements admissible under Evidence Code section 1223 as statements of a co-conspirator].) Similarly, as discussed in Argument XXII, ante, Clark expressly and personally withdrew any challenge to the statements of Ardell Williams being offered for their truth (14 RT 2915-2922), and, as discussed in Argument XXIII, ante, those statements were also properly admitted as non-hearsay evidenceofthe conspiracy to rob the Comp USA. Consequently, admission of the statements was wholly consonant with California law. Clark’s claim that admission ofthe statements violated the Confrontation Clause fares no better. Again, as discussed in Argument XVII, ante, Clark failed to object under the Confrontation Clauseattrial, thereby forfeiting the claim on appeal. Failure to assert the Confrontation Clause as grounds for challenging an evidentiary ruling inthetrial court forfeits the issue on appeal. (People v. Burgener, supra, 29 Cal.4th at p. 869; but see Peoplev. Johnson, supra, 121 Cal.App.4th at p. 1411, fn. 2 [Confrontation Clause objection not forfeited where trial occurred before decision in Crawford].)* Accordingly, Clark forfeited a Confrontation Clause challenge to the evidence based onhis lack of objection. Even assuming Clark’s confrontation challenges were properly raised in this court, they are without merit. As discussed in Argument XVII, ante, the high court held that non-testimonial hearsay, a category in which the court 9204) forfeits the claim on appeal. (People v. Ghent (1987) 43 Cal.3d 739, 766; see also Evid. Code, § 353.) 31. As noted in Argument XVII, herein, this Court has twice declined to decide whether a defendant tried before Crawford was decided forfeits an appellate challenge to the admission oftestimonial evidencein violation ofthe Confrontation Clause within the meaning of Crawford. (See People v. Harrison, supra, 35 Cal.Ath at p. 239; People v. Monterroso, supra, 34 Cal.4th at p. 763.) 130 expressly included statements in furtherance of a conspiracy, do not implicate the Confrontation Clause. (People v. Mitchell, supra, 131 Cal.App.4th at pp. 1221-1222, citing Crawford v. Washington, supra, 541 U.S. at p. 56, fn. omitted.) Accordingly, the admission at trial of Eric Clark’s statements to Ardell Williams regarding the conspiracy to rob the Comp USAstore were non-testimonial and were therefore not barred by the Confrontation Clause. As discussed in Argument XVIII, ante, because Clark procured Williams’s unavailability at trial by murdering her, the doctrine offorfeiture by wrongdoing would prevent Clark from asserting that his confrontation rights were violated. Here, the jury found Clark guilty beyond a reasonable doubt of conspiring to murder Ardell Williams, ofmurdering Ardell Williams, and found true the special circumstance that Williams was murdered to prevent her from testifying. (8 CT 2777-2778, 2789.) Based on these findings,it is clear that Clark wasresponsible for procuring Ardell Williams’s unavailability and heis equitably barred from asserting that her absence violated his confrontation rights. (See Davis v. Washington, supra, US.[SCt,| L.Ed.2d__|{ 2006 WL 1667285, *12].) XXXII. FBI SPECIAL AGENT TODD HOLLIDAY’S TESTIMONY SHOULD NOT HAVE BEEN STRICKEN UNDER EVIDENCE CODE SECTION 771 BASED ON HIS REFUSAL TO SURRENDER HIS NOTES TO THE DEFENSE BECAUSE THE NOTES WERE IN THE CONTROL OF THE FBI AND CLARK FAILED TO FOLLOW ESTABLISHED FBI PROCEDURES IN SEEKING THEIR RELEASE Clark contendsthat the trial court should havestricken the testimony of FBI Special Agent Todd Holliday under Evidence Codesection 771 based on his refusal to surrender notes that he referred to during his testimony to Clark for inspection. (AOB 344-349.) In the first instance, Clark has forfeited this 131 claim by failing to object and moveto strike his testimonyin the trial court. However, regardless, Special Agent Holliday’s testimony was not subject to being stricken under Evidence Codesection 771 becausethe notes, while in his possession, were in the control of the FBI and Clark failed to comply with established FBI procedures required for their release. Initially, Clark has forfeited any claim that Special Agent Holliday’s testimony should have been stricken under Evidence Code section 771 based on the FBI’s refusal to permit the production of his notes which he used to refresh his recollection at trial.” This Court has “long held that a party who does not object to a ruling generally forfeits the right to complain ofthat ruling on appeal.” (People v. Seijas (2005) 36 Cal.4th 291, 301; see also Evid. Code, § 353.) Although Clark, during cross-examination of Special Agent Holliday, asked the agent to produce the notes he wasreferring to while on the stand, Clark made no objection or requestto strike Special Agent Holliday’s testimony when he explained that the FBI forbid him from producing the notes. (52 RT 9134, 9181-9185.) Accordingly, Clark forfeited any challenge regarding 32. Similarly, Clark’s claim that his right to confrontation was violated is not properly before this Court. Clark, by failing to object in the trial court that the FBI’s refusal to turn over Special Agent Holliday’s notes, which he referred to when testifying at trial, violated his Sixth Amendment right to confrontation, has forfeited any challenge under the Confrontation Clause. (People v. Kaurish (1990) 52 Cal.3d 648, 687-688.) Further, “‘a criminal defendantstates a violation ofthe Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination[.]”” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680, 106 S.Ct. 1431, 89 L.Ed.2d 674, quoting Davis v. Alaska (1974) 415 U.S. 308, 318, 94 S.Ct. 1105, 39 L.Ed.2d 347.) As discussed above, Clark was free to make an appropriate request to the FBI for the release of the notes, even at the time ofthe cross- examination, but chose not to do so. (52 RT 9182.) Clark was not prohibited from obtaining the notes and cross-examining Special Agent Holliday regarding them. 132 Special Agent Holliday’s use ofnotesat trial. (See People v. Seijas, supra, 36 Cal.4th at p. 301; see also Evid. Code, § 353.) However, even assumingthe claim were properly preserved for appellate review, it is without merit. Evidence Code section 771 pertinently provides: (a) Subject to subdivision(c), if a witness, either while testifying or prior thereto, uses a writing to refresh his memory with respect to any matter about which hetestifies, such writing must be producedat the hearing at the request of an adverse party and, unless the writing is so produced,the testimony of the witness concerning such matter shall be stricken. ..4 (c) Production of the writing is excused, and the testimony ofthe witness shall not bestricken,ifthe writing: (1) Is not in the possession or control ofthe witnessor the party who produced his testimony concerning the matter; and (2) Was not reasonably procurable by such party through the use of the court’s process or other available means. Although Special Agent Holliday had the notes Clark’s counsel sought to review in his possession and,in fact referred to them while testifying, they were not in his control, but were under the control of the Federal Bureau of Investigation, which hadstrict policies and procedures regarding their release which Clark’s counsel had not complied with. (52 RT 9181-9182.) Further, when Special Agent Holliday indicated that “I could probably makea call and then give them to you, show them to you. I’d be happyto do that,” Clark’s counsel did not respond or make any effort to otherwise comply with FBI procedures for the release ofthe notes. (52 RT 9182.) Accordingly, production ofthe notes was excused under Evidence Codesection 771, subdivision (c), and it was unnecessary to strike Special Agent Holliday’s testimony. This Court rejected a similar claim in People v. Parham (1963) 60 Cal.2d 378. In Parham, the defendant contended that it was error to allow certain prosecution witnesses to testify against him in a bank robbery case 133 where they had provided signed statements to the FBI and the FBI refused to provide those prior statements to the defense for inspection in the state trial. (Id. at pp. 381-382.) This Court rejected the defendant’s argument, recognizing that Order No. 3229 ofthe Attorney General ofthe United States prohibited the FBIagent in the case from producing the statements without complying with — the procedureset forth in the order and that the state court was boundby the order and the procedure it established.” (/d. at p. 381.) Further, use of the witnesses’ testimonyin the state case was appropriate becausestate officials had no role in denying accessto the statements. (/d. at p. 382.) Just like the FBI agent in Parham, Special Agent Holliday was precluded from relinquishing his notes to Clark for inspection withoutfirst complying with FBI procedures. When heoffered to contact his superiors and attempt to facilitate the release ofthe documents, Clark’s counsel merely moved on in his cross-examination. (52 RT 9182.) Further, the prosecution had no role in keeping Special Agent Holliday’s notes from Clark. Accordingly, Evidence Codesection 771, subdivision (c), served to excuse the FBI’s refusal to producethe notes. However, even assumingthatthe trial court should have stricken Special Agent Holliday’s testimony under Evidence Code section 771 based on the FBI’s refusal to produce his notes, any error was harmless. Error in the application of Evidence Code section 771 is one of state law and is reviewed underthe standardset forth in People v. Watson, supra, 46 Cal.2d at 836. (See People v. Kaurish, supra, 52 Cal.3d at p. 687.) Such error will only result in 33. Although Special Agent Holliday never expressly invoked Order No. 3229 as the basis for refusing to provide the notes, the FBI policy he referred to relating to a procedure for federal agency approvalofthe disclosure ofthe notes appears substantially similar in character to that found by this Court to be proper and binding onthestate courts in Parham. 134 reversal whereit is reasonably probable that the defendant would have obtained a more favorable result had the challenged testimony beenstricken. (See Jbid.) Special Agent Holliday was an important, but by no meansessential, witness in the prosecution’s case. Although he did provide an explanation as to how Ardell Williams came to the attention of Investigator Grasso and the authorities in Fountain Valley, this evidence wasalso largely adduced through Investigator Grasso’s testimony. Further, the statements madeto Special Agent Holliday by Williams about Clark’s involvement in the Comp USAcase were consistent with Williams grand jury testimony and statements to local authorities, all of which were introduced at trial. Finally, as discussed previously, the circumstantial evidence of Clark’s guilt was overwhelming. Accordingly, it is not reasonably probable that Clark would have obtained a more favorable result had Special Agent Holliday’s testimony been stricken and any error was harmless. (See People v. Kaurish, supra, at p. 687.) XXXIV. THE TRIAL COURT PROPERLY EXCLUDED EVIDENCE OF THIRD-PARTY CULPABILITY IN THE MURDER OF ARDELL WILLIAMS BECAUSE THERE WAS NO EVIDENCE LINKING TONY MILLS, THE FATHER OF WILLIAMS’S CHILD, TO HER MURDER Clark contends that the trial court improperly excluded evidence of third-party culpability, claiming that he should have been allowed to present evidence that Tony Mills, the father of Ardell Williams’s child, was involved in a custody dispute with Williams and had been involvedin a confrontation with her two monthsprior to her murder, thereby suggesting that he could have murdered Williams. (AOB 350-367.) Thetrial court properly excluded the proffered evidence because there was no direct or circumstantial evidence linking Mills to Williams’s murder and the evidence wasthereforeirrelevantto demonstrate third-party culpability. 135 Evidence Code section 350 provides for the admission of relevant evidence. Evidence Code section 210 defines relevant evidence as evidence “having any tendency in reason to prove or disprove a disputed fact... .” Evidence of third party culpability, like any other type of evidence, is only admissible when that evidence is demonstrated to be relevant, subject to the strictures ofEvidence Code section 352. (People v. Hall (1986) 41 Cal.3d 826, 834.) In order to be relevant, third-party evidence need not show “substantial proof of a probability” that the third person committed theact; it need only be capableofraising a reasonable doubt of defendant’s guilt. At the same time, we do not require that any evidence, however remote, must be admitted to show a third party's possible culpability. As this court observed in Mendez, evidence ofmere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime. (Id. at p. 833.) Further, under Evidence Codesection 352, even relevant evidence of third party culpability may be excluded where “its probative value is substantially outweighedbythe risk ofundue delay, prejudice, or confusion (§ 352).” (Ibid.) A trial court has broad discretion to determine the relevance ofevidence andthe sufficiency ofthe foundational evidenceestablishing that relevance and its exercise of discretion “is not grounds for reversal unless ‘ “the court exercisedits discretion in an arbitrary, capriciousorpatently absurd mannerthat resulted in a manifest miscarriage ofjustice.” ’ [Citations.]” (People v. Ochoa, supra, 26 Cal.4th at pp. 437-438; see also People v. Guerra, supra, 37 Cal.4th at p. 1120; People v. Cunningham, supra, 25 Cal.4th at p. 995.) Similarly, a decision to exclude evidence under Evidence Code section 352 comes within the trial court’s broad discretionary powers and “will not be overturned absent an abuseofthat discretion.” (People v. Minifie (1996) 13 Cal.4th 1055, 1070.) 136 Here, the prosecution filed an in limine motion objecting to evidence of third party culpability. (6 CT 2337-2339.) The court held a hearing on the motion, where Clark sought to introduce evidence that Tony Mills, the father ofArdell Williams’s child, was involvedin a custody dispute with Williams and had been involvedin a confrontation with her two monthsprior to her murder. (38 RT 6746-6776, 61 RT 10355-10366.) The court excluded the evidence, explaining, the jury was already aware the two weresplit-up and in a custody dispute. Mills took it upon himself to inform Disneyland that Williams was stealing from them andtrying to pass credit cards illegally. The jury further knew that this act of Mills resulted in her being fired from Disneyland. Accordingly, the animosity between Williams and Mills was already known to the jury. Thejury knew ofthe homeinvasion robbery. No evidence linked or related the home invasion robbery to Mills. The only evidenceofthird-party culpability relating to Mills not knownto the jury and proffered by the defense was a face-to-face confrontation between Mills and Williams two months before her death. The trial court found the evidence ofthird-party culpability insufficient, and that it would also be excluded because the probative value was outweighed by the confusion of interjecting the domestic dispute between Williams and Mills into the criminal case. (61 RT 10364-10366.) Clark’s counsel did not challenge the trial court’s summary of Clark’s offer ofproof. There was absolutely no evidence presented linking Tony Mills to Ardell Williams’s murder. Although Mills certainly had animosity toward Williams, as demonstrated by his efforts to have her fired from her job with Disney, mere motive or opportunity to commit the crime, without more, is not sufficient to raise a reasonable doubt about a defendant’s guilt, and need not be admitted into evidence. (People v. Avila (2006) 38 Cal.4th 491, 578; People v. Hall, supra, 41 Cal.3d at p. 833.) This Court does not require trial courts to admit evidence, however remote, to show third-party culpability. (People v. Harris, supra, 37 Cal.4th at p. 340.) 137 There was absolutely no evidence that Mills was involved in, or connected to, Yancey’s plot to lure Williams to the Continental Receiving facility on March 13, 1994. The fact(if true) that Mills had been involved in a confrontation with Williams two months prior to the murder did no more than suggest that Mills might have had a motive to harm Williams, but that evidence was otherwise simply too remote and unconnectedto the actual murderto have any relevance. Further, as the trial court recognized, there was a substantial dangerthat the irrelevant evidence regarding Mills would confuse or mislead the jury. Accordingly, the trial court properly excluded the proffered evidence. (See People v. Hall, supra, 41 Cal.3d at p. 833; see also People v. Gutierrez (2002) 28 Cal.4th 1083, 1134-1138; People v. Kaurish, supra, 52 Cal.3d atpp. 684-686.) Clark’s claim that the exclusion of third-party culpability evidence violated his federal constitutional right to present a defense similarly fails. This Court in Hall reaffirmed the general principle that “the ordinary rules of evidence do not impermissibly infringe on the accused’s right to present a defense” and rejected a claim that the exclusion of evidence of third-party culpability implicates the federal Constitution. (People v. Hall, supra, 41 Cal.3d at p. 834.) Clark’s identical claim that his federal constitutional rights were implicated by the trial court’s evidentiary ruling similarly fails. (See /bid.) Even assuming arguendothetrial court improperly excluded evidence of third-party culpability, any error was harmless. Where a trial court improperly excludes evidence of third-party culpability, the error will only result in reversal of the judgment whereit is reasonably probable that the defendant would have obtained a more favorable result had the evidence been _ admitted. (See Jd. at pp. 835-836,citing People v. Watson, supra, 46 Cal.2d at p. 837.) Here, as discussed previously, there was overwhelming circumstantial evidence that Clark conspired with Antoinette Yancey to plan and execute an elaborate plot to lure Williams to a bogus job interview and murder her. 138 Conversely, there was absolutely no evidence, beyond a suggested motive based on the custody dispute between Mills and Williams, linking Mills to Williams’s murder. Accordingly, it is not reasonably probable that Clark would have obtained a more favorable verdict had the evidence regarding Mills been admitted and any error was harmless. (See People v. Hall, supra, 41 Cal.3d at pp. 835-836.) XXXV. THE GRANTS OF IMMUNITY PROVIDED TO MATTHEWWEAVERAND JEANETTE MOORE WERE NOT COERCIVE AND DID NOT REQUIRE THEM TO TESTIFY IN A PARTICULAR FASHION Clark contendsthat it was improper to permit the testimony of Jeanette Moore and Matthew Weaverbecausethat testimony wasthe productofpolice inducements and coercion and therefore unreliable. (AOB 368-381.) Clark has forfeited this claim by failing to object in the trial court. Further, the record demonstrates that the grants ofimmunity provided to Weaver and Moore were not coercive and did not require them to testify in a particular fashion, beyond merely requiring them totell the truth. Asa preliminary matter, although Clark claims that he “repeatedly” objected to the admissibility of Moore and Weaver’s testimony as being unreliable and the product of compulsion (AOB 368,citing 2 RT 834, 7 RT 1756-1760, 9 RT 1968), the record does not support this contention. A criminal defendant whofails to object in the trial court to the use ofaccomplice testimony based on improper police conduct in obtaining the witness’s cooperation forfeits the claim on appeal. (See e.g. People v. Avila, supra, 38 Cal.4th at p. 594; see also Evid. Code, § 353.) Accordingly, Clark’s failure to object on the groundshe nowasserts forfeits the claim. 139 However, even assuming the claim were properly before this Court, it is without merit. This Court has “rejected the contentionthat the testimony of an immunized accomplice necessarily is unreliable and subject to exclusion. [Citations.]” (People v. Jenkins, supra, 22 Cal.4th at p. 1010.) Instead, [i]Jmmunity or plea agreements may not properly place the accomplice under a strong compulsiontotestify in a particular manner - a requirement that he or she testify in conformity with an earlier statement to the police, for example, or that the testimonyresult in defendant’s conviction, would place the witness under compulsion inconsistent with the defendant’s rightto fair trial. [Citation.] Although we have recognizedthat there is some compulsioninherentin any plea agreement or grant ofimmunity, we have concludedthat“it is clear that an agreement requiring only that the witnesstestify fully and truthfully is valid.” ([Citations.| Such a plea agreement, evenif it is clear the prosecutor believes the witness’s prior statement to the police is the truth, and deviation from that statement in testimony mayresult in the withdrawal of the plea offer, does not place such compulsion upon the witness as to violate the defendant’s right to a fair trial. [Citation.] In addition, the testimony ofpersons who maybesubject to prosecution as accessories unless they “cooperate” with the police is not inadmissible as coerced unless something more than the threat of prosecution is shown.[Citation.] (People v. Jenkins, supra, at p. 1010.) A reviewing court must consider the entire record and exercise its independent judgment as to whether the agreement under which a witness testified was coercive, resolving factual conflicts in favor ofthe judgment. (/d. at p. 1011.) The record here demonstrates that, while the prosecution granted immunity to both Jeanette Moore and Matthew Weaverin orderto secure their testimony, the grants of immunity were not coercive and did not require them to testify in a particular fashion, beyond merely requiring them totell the truth. When questioned about their grants of immunity, both Moore and Weaverindicated their understanding that they understood that their grant of immunity was not conditioned on testifying in a particular fashion. The prosecutor asked Mooreifshe understood that she was “not requiredtotestify 140 the same way[she] told [sic] the police” or “he same waythat [she] previously testified?” and she indicated that she did. (43 RT 7642-7643.) Similarly, the prosecutor expressly asked Weaver, “Do you understand that you’re not, as you testify here today, you're not confinedto a particular story?” and Weaversaid, “Yes.” (45 RT 8001.) The prosecutor then reiterated, “[d]o you understand that the testimony that you’re going to give today, you're not required to give it in any kind of conformity to previous statements that you've given?” and Weaveragain respondedaffirmatively. (45 RT 8002.) Basedon this evidence, both Moore and Weaver understood that their grant ofimmunity was not conditioned ontestifying in a particular fashion and that they were not boundto testify in conformity with their prior statements. The trial court properly admitted the testimony. (See People v. Jenkins, supra, 22 Cal.4th at p. 1010.) Finally, the trial court’s instructions to the jury included the standard pattern jury instructions on accomplices and accomplice testimony. (7 CT 2700-2706.) These instructions included CALJIC Nos. 3.19, 3.11, and 3.18, informing the jury of the necessity ofdetermining whether Moore and Weaver were accomplices, the requirement that accomplice testimony be corroborated, and the need to view accomplice testimony with distrust. The jury was also aware of the immunity agreements and could judge the witnesses’ credibility accordingly. There was noerror. 141 XXXVI. THE TRIAL COURT PROPERLY ADMITTED TAPE RECORDINGS OF MATTHEW WEAVER’S INTERVIEWS WITH INVESTIGATOR GRASSO UNDER EVIDENCE CODE SECTION 356 BECAUSE CLARK’S COUNSEL REPEATEDLY QUESTIONED WEAVER ABOUT STATEMENTS MADE DURING THE INTERVIEWS ON CROSS-EXAMINATION AND THE PROSECUTION WASENTITLED TO HAVE THE JURY HEAR THE ENTIRE INTERVIEWS TO DISPEL THE IMPRESSION THAT INVESTIGATOR GRASSO WAS FEEDING INFORMATION TO WEAVERDURING THE INTERVIEWS Clark contends that the trial court improperly admitted the tape recordings of Matthew Weaver’s interviews with Investigator Grasso as evidence because he only used the transcripts of the interviewsto refresh his recollection during cross-examination and did not offer any part of the transcripts into evidence.” (AOB 382-394.) Thetrial court properly admitted the tape recordings under Evidence Code section 356 because Clark’s counsel repeatedly questioned Weaver about statements made during the interviews on cross-examination and the prosecution was entitled to have the jury hear the entire interviews to dispel the misconception that Investigator Grasso was feeding information to Weaver during the interviews. Evidence Code section 356 provides: Wherepart of an act, declaration, conversation, or writing is given in evidence by oneparty, the whole on the same subject may be inquired 34. Clark also contends that admission ofthe tape recorded interviews violated his confrontation rights under Crawford. As discussed in Argument XVII, ante, Clark forfeited any objection on Confrontation Clause grounds by failing to object under the Confrontation Clause to the admission ofthe tape recordingsat trial. (People v. Burgener, supra, 29 Cal.4th at p. 869; but see People v. Johnson, supra, 121 Cal.App.4th at p. 1411, fn. 2 [Confrontation Clause objection not forfeited where trial occurred before decision in Crawford].) 142 into by an adverse party; whena letter is read, the answer maybe given; and whena detachedact, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to makeit understood mayalso be given in evidence. “The purposeofthis section is to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed.” (People v. Arias, supra, 13 Cal.4th at p. 156.) “ Tn applying Evidence Code section 356 the courts do not draw narrow lines around the exact subject of inquiry. “In the event a statement admitted in evidence constitutes part of a conversation or correspondence, theopponentis entitled to have placed in evidenceall that was said or written by or to the declarant in the course of such conversation or correspondence, provided the other statements have somebearing upon, or connection with, the admission or declaration in evidence... .” [Citation.]’ ” (People v. Harris, supra, 37 Cal.4th at pp. 334-335, originalitalics, quoting People v. Zapien (1993) 4 Cal.4th 929, 959.) A trial court’s decision regarding the admission ofevidence will not be disturbed on appeal absent an abuseofdiscretion. (People v. Waidla, supra, 22 Cal.4th at pp. 717-718.) After Clark cross-examined Matthew Weaverat some length regarding his various interviews with Investigator Grasso (46 RT 8102-8104, 8114-8116, 8118-8121, 8123-8130, 8137, 8146-8158), the prosecutor sought to introduce the tape recordingsofthe interviewsin their entirety pursuant to Evidence Code section 356, arguing that it was necessary for the jury to hear the interviews in order to combat the misleading impression Clark’s counsel had created during his cross-examination of Weaverthat Investigator Grasso “spoon-fed”details _ to Weaver during the interviews. (48 RT 8439-8442.) Thetrial court, after reviewing the transcript of Weaver’s direct and cross-examination testimony, admitted the evidence and the tapes were later played for the jury. (48 RT 8444-8445; 49 RT 8697-8699; 50 RT 8705-8707.) 143 Admission ofWeaver’s tape recorded interviews with police was proper under Evidence Codesection 356. Although Clark claims that it was improper to play the tape recorded interviews to the jury, he instead focuses on the transcripts of the interviews. Heis correct that he only used the transcripts to refresh Weaver’s recollection on cross-examination and did not place any portion ofthe transcripts in evidence. (AOB 386-389.) The transcripts were, in fact, never offered into evidence. (7 CT 2574.) However, Clark ignores that Evidence Code section 356 expressly applies to conversations, as well as writings. (Evid. Code, § 356.) It was not Clark’s counsel’s use of the transcripts of the interviews to refresh Weaver’s recollection that justified the admission of the entire tape recorded conversations under Evidence Codesection 356, but his repeated references in his cross-examination to selected portions of those conversations. Thetrial court recognizedthis, explaining, The court does not believe in all candor, [Clark’s counsel], that your position is borne out by the record. ... 1... Itjust goes on and on, whereI will certainly agree, [Clark’s counsel], that once in a while you showed him the transcript and said does that refresh your memory,but there are many referencesto the conversation where it was far more, far more than that. (48 RT 8444-8445.) Clark’s counsel’s questioning was limited to very select portions ofthose conversations and created the impression that Investigator Grasso’s interview “fed” Weaver much of the information that he testified to at trial. (46 RT 8102-8104, 8114-8116, 8118-8121, 8123-8130, 8137, 8146-8158.) This is precisely the situation evidence Code section 356 is designed to address. (See People v. Arias, supra, 13 Cal.4th at p. 156.) The fact that the conversations were memorialized in a transcript that was not offered into evidence did not 144 make the conversations themselves any less admissible. Accordingly, the tape recorded conversations between Weaverand Investigator Grasso were properly admitted under Evidence Codesection 356. (See People v. Sanders (1995) 11 Cal.4th 475, 520, [where defense counsel elicited portions of investigative interview with witness, prosecution not foreclosed from inquiring into context of statements on redirect examination of witness and cross-examination of investigator].) However, even assumingthetrial court improperly admitted the tape recordedinterviewsat trial, any error was harmless. The erroneous admission of evidence under Evidence Code section 356 will not result in the reversal of a judgementunless it is reasonably probable thatthe defendant would have obtained a more favorable result had the evidence not been admitted. (People v. Arias, supra, 13 Cal.4th at pp. 156-157, citing People v. Watson, supra, 46 Cal.2d at p. 836.) Here, the introduction ofWeaver’s tape recorded interviews with Investigator Grasso was harmless. Weaverhadalreadytestified to his involvement in the Comp USA robbery case. The introduction of Weaver’s tape recorded interviews wherein he admittedly lied to Investigator Grasso about his involvementin the crime, served to remind thejury ofWeaver’s prior lack of candor. Further, there was overwhelming circumstantial evidence of Clark’s guilt. It is not reasonably probable that Clark would have obtained a more favorable result had the tape recorded interviews with Weaver not been admitted. (See People v. Arias, supra, 13 Cal.4th at pp. 156-157.) 145 XXXVI. IT WAS NOT PROSECUTORIAL ERROR TO INTRODUCE EVIDENCE OF CLARK’S INVOLVEMENT WITH ARDELL WILLIAMS IN THE 1990 SOFT WAREHOUSE THEFT BECAUSE THE EVIDENCE WAS ADMISSIBLE AND NOTTHE SUBJECT OF THE TRIAL COURT’S EARLIER RULING EXCLUDINGEVIDENCE OF CERTAIN 1989 COMPUTER THEFTS Clark contends that the prosecutor committed error by introducing evidence of Clark’s involvementin the 1990 theft from Soft Warehouse with Ardell Williams because the trial court had previously ruled this evidence inadmissible. (AOB 395-405.) Clark forfeited this claim by failing to object and seek an admonition in the trial court and, in any event, no prosecutorial error occurred because the evidence was admissible and not the subject of the trial court’s earlier ruling excluding evidence of certain 1989 computerthefts. Clark has forfeited any claim of prosecutorial error by failing to object and request an admonition in the trial court. In order to preserve a claim of prosecutorial error for review in the appellate court, a defendant “must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm causedbythe misconduct.” (People v. Kipp (2001) 26 Cal.4th 1100, 1130.) Even assuming an objection on the groundsofprosecutorial error was well taken, the evidence presented of Clark’s involvement in the 1990 Soft Warehouse theft was a relatively collateral point in an otherwise lengthy trial and the jury could have easily been admonishedto disregard this evidence. There is no basis on which to excuse Clark’s omission andhisfailure to object and request an admonition forfeits the claim on appeal. (See Ibid; see also People v. Cunningham, supra, 25 Cal.4th at p. 1020.) However, even assuming the claim were properly preserved for review, no prosecutorial error occurred. It is well-settled that it is error for a prosecutor 146 to “knowingly elicit testimonythat is inadmissible in the present proceedings.” (Ibid., originalitalics.) However, as the record here demonstrates, the evidence | of the 1990 Soft Warehouse theft was different in character from the 1989 computer thefts which the trial court had previously ruled inadmissible and was not the subject of the prior ruling. Richard Highness, an employee ofa Soft Warehousestore in Torrance, testified at trial without objection that, on November 1, 1990, Clark, who identified himself as Tom Jones, cameinto the store to purchase about $10,000 in computer equipment. Clark was provided with the equipment and a customer service agreement to present to the cashier, Ardell Williams, for payment. When Highness later reviewed the day’s receipts, there was no receipt for the sale and Williams, upon being questioned aboutthe sale denied having any knowledge of it. (48 RT 8585-8594.) The day after Highnesstestified, the trial court initiated a discussion regarding his testimony. (49 RT 8603.) The trial court first noted that the 1990 Soft Warehouse theft had not been part ofan earlier Evidence Code section 402 hearing (6 CT 2008-2023, 2124-2127; 14 RT 2924-2946) wherein thetrial court had ruled evidence ofcertain computer thefts committed by Clark in 1989 were not admissible under Evidence Codesection 1101, subdivision (b).2” (49 35. Evidence Code section 1101 provides: (a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidenceofa person's character or a trait of his or her character (whether in the form of an opinion, evidence ofreputation, or evidence ofspecific instances ofhis or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, 147 RT 8604-8605.) Clark’s counsel also did not contend that the Soft Warehouse theft evidence had been subjectto the court’s ruling regarding the 1989 thefts, but did argue that he was unawareofthe prosecution’s intention to present the evidence. (49 RT 8605.) The prosecution responded that he had expressly referred to the Soft Warehouse robbery, without objection, during his opening statement. (42 RT 7471-7473; 49 RT 8606.) The prosecution noted that Clark had abandonedhis objection to Ardell Williams’s prior statements being offered for their truth (14 RT 2915-2922) and that Ardell Williams had discussed her involvement with Clark in the Soft Warehouse theft with Investigator Grasso. (49 RT 8605-8606.) Thetrial court then indicated that it would entertain a request for an Evidence Codesection 1101, subdivision (b) limiting instruction. (49 RT 8607.) Investigator Grasso later testified that Williams had told him about Clark’s participation in the Soft Warehousetheft and that this conversation was included in a police report that was provided to the defense in discovery. (50 RT 8803-8806.) At the conclusion of the case, the trial court, at the prosecution’s request, instructed the jury that evidence regarding the Soft Warehousetheft was only to be considered for the limited purpose ofshowing the relationship between Clark and Williams, motive, and intent, andnotforthe purpose of showing Clark’s bad character or predisposition to commit crimes. (7 CT 2671.) absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act. (c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility ofa witness. 148 Asthe record demonstrates, the prosecutor did not knowingly introduce inadmissible evidence about the 1990 Soft Warehouse theft because that evidence had not been the subject ofthe earlier ruling, which had been limited to the 1989 computer thefts. The evidence of the 1989 thefts,which Ardell Williamshad notparticipated in, was offered to show that Clark had a general interest in stealing computers. (6 RT 2008-2083; 14 RT 2924-2946.) The evidence of the Soft Warehouse theft was fundamentally different from the 1989 computerthefts in a critical respect; the former involved Ardell Williams. The Soft Warehousetheft was independently relevant to show Clark’s prior relationship with Ardell Williams, as well as his motive and intent to murder her. The defense spent considerable effort attacking the credibility of the content ofWilliams’s prior statements. This was the express reason Clark abandonedhis objection to the admission of those statements for their truth. (14 RT 2915-2922.) One of the key statements made by Williams was her discussion of eating at the Del Taco restaurant with Clark while he cased the Comp USAstore and his adoptive admission that the Comp USAstore was his next target. (SO RT 8739-8777.) By showing that Clark had previously been involved in a computerstore theft with Williams, it became clear why he would bring her with him onthis occasion and thereby bolstered the credibility ofthe statement and further explained why Williams’s potential testimony was so dangerous to Clark and why he had a motive to murderher to prevent her from testifying. This is an appropriate purpose under Evidence Codesection 1101, subdivisions (b) and (c). (See People v. Douglas (1990) 50 Cal.3d 468, 510 [prior act evidence admissible under 1101 to corroborate witness’s testimony implicating defendant as perpetrator of murders], overruled on other grounds in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.) However, even assuming it was prosecutorial error to elicit testimony about the Soft Warehouse theft, any error was harmless. A prosecutor’s knowingsolicitation ofinadmissible testimony will not result in the reversal of 149 the judgment unless it is reasonably probable that the defendant would have obtained a more favorable result had the evidence not been admitted. (See People v. Bonin (1988) 46 Cal.3d 659, 689-690, overruled on other groundsin People v. Hill (1998) 17 Cal.4th 800, 823,fn. 1, citing People v. Watson, supra, 46 Cal.2d at p. 836.) Thejury was presented with overwhelming circumstantial evidence of Clark’s guilt independent of the Soft Warehousetheft evidence. The Soft Warehouse theft evidence “constituted an isolated instance in a lengthy and otherwise well-conductedtrial” and it is not reasonably probable that Clark would have obtained a more favorable outcomehad the evidence not been admitted. (See People v. Bonin, supra, 46 Cal.3d at p. 690.) XXXVIII. THE TRIAL COURT PROPERLY ADMITTED INTO EVIDENCE TAPES PLAYED TO ARDELL WILLIAMS’S MOTHER AND SISTER FROM WHICH THEY IDENTIFIED ANTOINETTE YANCEY’S VOICE TO POLICE BECAUSE THE TAPES WERE RELEVANT TO THE CONTESTED ISSUE OF IDENTITY Clark contendsthat the trial court improperly admitted the audio tapes played by the police for Ardell Williams’s mother and sister Nenain order to identify Antoinette Yanceyas the voice ofJanet Jackson, the person wholured Williams to her death with promises of a job interview at Continental Receiving. Clark argues that the tapes were never played for the jury in court andthatthetrial court’s order that the tapes be edited to conform to the brief portions actually played for the witnesses when they madetheir identifications was violated whenthe tapes were admitted in their entirety2” (AOB 406-413.) 36. Clark also contends that admission of the tapes violated his confrontation rights under Crawford. (AOB 408-410.) First, as discussed in Argument XVII, ante, Clark forfeited any objection on Confrontation Clause groundsbyfailing to object under the Confrontation Clause to the admission of the tape recordingsat trial. (People v. Burgener, supra, 29 Cal.4th at p. 869; but see People v. Johnson, supra, 121 Cal.App.4th at p. 1411, fn. 2 150 Initially, Clark forfeited any foundational objection to the admission of the tapes based on the fact that they were not played in court by failing to object and, regardless, there was adequate foundation for the admission ofthe tapes presented through the testimony of Williams’s mother, sister, and Detective Anderson. Further, the trial court properly rejected Clark’s challengesthat the tapes were irrelevant and subject to exclusion under Evidence Code section 352. Further, the record does not support Clark’s assertion that the trial court ordered the tapes be edited and Clark’s counsel ultimately abandoned any objections and acquiesced on the record to the admission of the tapes. Clark’s contention that the tapes played to Williams’s motherandsister by police in order for them to identify Janet Jackson’s voice should not have been admitted for identification purposes because they were-not played in open court is meritless. Although Clark made aninitial challenge to the admission of the tapes on relevance and section 352 grounds, Clark madenoreferenceto any challenge to the admission of the tapes based on a lack of foundation. Clark’s failure to make such a foundational objection forfeits the claim on appeal. (Evid. Code, § 353; see People v. Williams, supra, 16 Cal.4th at pp. 661-662.) Regardless, there was adequate foundation to introduce the tapes into evidence. In order to be admissible, an audio recording must be authenticated eoby evidence ‘that it accurately depicts what it purports to show.’ ” (Evid. Code, §§ 250 [defining “writing” to include recording], 1401 [requiring authentication of “writings”]; People v. Williams, supra, 16 Cal.4th at p. 662; People v. Mayfield (1997) 14 Cal.4th 668, 747.) [Confrontation Clause objection not forfeited where trial occurred before decision in Crawford].) However, regardless, as discussed in ArgumentXIII, ante, under Crawford, the admission of the tapes did not implicate the Confrontation Clause because they were not hearsay and were not considered for their truth. (See Crawford v. Washington, supra, 541 U.S.at p. 68.) 151 Attrial, the prosecution, without objection, questioned Ardell Williams’s mother and sister Nena regarding their identification of the voice of Janet Jackson on audio tapes ofvoices that the police had played for them during the investigation ofWilliams’s murder (People's Exh. 141). (53 RT 9324-9326; 54 RT 9473-9474.) Detective Anderson thentestified in detail as to how the tapes were compiled and played for the witnesses and both witnesses’ identification of Yancey’s voice as being that of Janet Jackson. (55 RT 9583-9591.) This evidence was adequate to establish the foundation forthe later admission ofthe tapes. Clark offers no authority for the proposition that playing a tape recording in open court is a condition precedent to the admission ofthat tape into evidence, where the tape is otherwise admissible and an adequate foundation for the tape is established. (AOB 406-413.) However, even assuming such werethecase, it makes Clark’s lack ofan appropriate objection even morecritical, for such an omission could have been easily corrected by permitting the prosecution to reopen its case and play the tape for the jury had the omission been brought to the court’s attention in a timely fashion. Clark’s other challenges to the admission of the tapes similarly fail. Althoughthe tapes werenotplayedforthejury in court, the prosecution moved to introduce the tapes into evidence at the close of the trial. (59 RT 10118-10119.) Clark’s counsel objected that the tapes contained irrelevant material and should be excluded under Evidence Code section 352. (59 RT 10119-10121.) Thetrial court overruled Clark’s objection, stating, The court will permit the tapes to be marked and received as exhibits. Again,I do believe that you may have a meaningful argument there, counsel, but under 352, I believe the probative valueis sufficient for the jurors to receive it, and outweighsanyprejudicial effect, and they are appropriately received, their admissibility being governed, being a question of weight for the jury. (59 RT 10121.) 152 WhenClark’s counsel indicated that the tape ofYancey’s voice included Yancey making statements blaming Clark for Williams’s murderto the police, the trial court responded that it would nonetheless permit the tape for voice identification, but would give a limiting instruction ifrequested by Clark. (59 RT 10121-10122.) Clark’s counsel then sought to limit the tape of Yancey’s voice to a 15-second excerpt for voice identification. The prosecution indicated that something could be worked out andthetrial court stated that the admission of the tape would therefore remain under submission. (59 RT 10122-10123.) Ata hearing twodayslater, the trial court revisited the admission ofthe tapes. Thetrial court asked if the parties needed the court’s participation with respect to the admission of the tapes or if they had reached an agreement. Clark’s counsel indicated that the parties had reached an agreement regarding the tapes, although counsel did not communicate the substance of that agreement to the court. (60 RT 10132.) Clark, without discussion, simply agreed that the tapes should be admitted andthe trial court admitted the tapes into evidence without objection. (7 CT 2582; 60 RT 10144.) Asthe record demonstrates, the trial court never ordered that the tapes be edited as Clark now claims on appeal. Instead, the prosecution expressedits willingness to discuss editing the tapes with Clark’s counsel and the court took the matter under submission to permit the parties an opportunity to do so. Two days later, Clark’s counsel indicated that the parties were in agreementas to the admission of the tapes and the tapes were admitted without further objection. Clark’s failure to press the court for a ruling on, or even discuss, the editing of the tapes prior to their ultimate admission forfeits the claim on appeal. (See _ People v. Morris, supra, 53 Cal.3d at p. 190, overruled on other grounds, People v. Stansbury, supra, 9 Cal.4th at p. 830, fn. 1.) However, even assuming Clark’s claim regarding the failure to edit the tapes were properly preserved on appeal, the tapes were properly admitted. As 153 discussed in Argument X, ante, only relevant evidence is admissible. (Evid. Code, § 350; People v. Cunningham, supra, 25 Cal.4th at p. 995.) Relevant evidenceis definedas, evidence, including evidencerelevant to the credibility of a witness. ., having any tendencyin reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (Evid. Code, § 210; People v. Cunningham, supra, 25 Cal.4th at p. 995.) A trial court has broad discretion to determine the relevance ofevidence and its exercise of discretion “is not grounds for reversal unless ‘ “the court exercisedits discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage ofjustice.” ’ [Citations.]” (People v. Ochoa, supra, 26 Cal.4th at pp. 437-438; see also People v. Cunningham, supra, 25 Cal.4th at p. 995.) Here, Antoinette Yancey’s identity as Janet Jackson, the person who called the Williams home and lured Williams to her death at the Continental Receiving facility was a contested issue at trial. The jury heard the testimony of Williams’s mother and sister Nena regarding their pretrial identification of Yancey’s voice for the police. Clark’s counsel then cross-examined them regarding a tape prepared by the defense and played for the witnesses at the preliminary hearing (Defense Exh. N) where the two haddifficulty identifying Yancey’s voice. (54 RT 9392-9395, 9491-9493.) This tape (Defense Exh. N) wasplayed for the jury. (54 RT 9394.) A recording of Antoinette Yancey’s voice, madeat the preliminary hearing (People’s Exh. 118), was also played for the jury. (54 RT 9504-9505.) Accordingly, Clark’s challenge to Williams’s mother’s and sister’s identification of Yancey’s voice madeit necessary for the jury to considerall _ of the tapes in question, as these formedthe basis of their in-court testimony identifying Yancey’s voice. The fact that the witnesses may not havelistened to the entire tape of Yancey’s voice contained in People’s Exhibit 141 when 154 makingtheir identification is of no moment. Thecritical fact is that the tape contained Yancey’s voice and Yancey’s voiceitselfwas the relevant evidence. It permitted the jury to considerthe pitch, timbre, and other tonal qualities of that sample of her voice and compare the voice to those found on Defense Exhibit N and People's Exhibit 118 in order to judge the reliability of the witnesses's identification of Yancey’s as the voice of Janet Jackson. Similarly, admission of the tapes was proper under Evidence Code section 352. As discussed in Argument XXVI, ante, Evidence Code section 352 provides that a court, in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption oftimeor (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. Evidence will be found to be substantially more prejudicial than probative if “it poses an intolerable ‘risk to the fairness of the proceedings or the reliability ofthe outcome’ [citation].” (People v. Waidla, supra, 22 Cal.4th at p. 724.) A reviewing court will only disturb a trial court’s ruling under Evidence Code section 352 weighing prejudice and probative value upon a showingofan abuseofdiscretion. (/bid.) Here, admission of the tape was useful to the jury in resolving the contested issues surrounding Williams’s mother’sandsister’s identification of Yancey’s voice as that ofJanet Jackson. Considering their difficulty in making an in-court identification based on Defense Exhibit N, which was playedfor the jury, it was properfor the jury to be permitted to assess the reliability of the earlier identification ofYancey’s voice by considering the sample contained in People's Exhibit 141 and comparingit to the other samples found in Defense Exhibit N and People's Exhibit 118. Further, any statements made by Yancey implicating Clark on the tape, though possibly inculpatory if considered for their truth, did not pose an intolerable risk to the fairness of the trial, as the 155 prosecution did not arguetheir truth to the jury. Accordingly, admission ofthe tapes was proper under Evidence Code section 352. However, even assuming the tapes were improperly admitted without some sort of editing, any error was harmless. Error in the “application of ordinary rules of evidence” is reviewed under the harmless error standard articulated in People v. Watson, supra, 46 Cal.2d at 836, and will only result in reversal whereit is reasonably probable that the defendant would have received a more favorable outcome had the challenged evidence not been admitted. (People v. Harris, supra, 37 Cal.4th at p. 336.) As discussed previously, there was overwhelming circumstantial evidence of Clark’s guilt independentofthe tapes played to Williams’s motherandsister in the voice lineup. Accordingly, anyerror in their admission was harmless. XXXIX. NENA WILLIAMS’S IN-COURT IDENTIFICATION AT TRIAL OF ANTOINETTE YANCEY WAS NOT THE PRODUCT OF UNDULY SUGGESTIVE PRETRIAL IDENTIFICATION PROCEDURES Clark contends that Ardell Williams’s sister Nena’s in-court identification at trial ofAntoinette Yancey as the person who delivered flowers to Williams andthe caller who arranged the job interview with Williams (53 RT 9300-9310, 9324-9326) was the result of unduly suggestive pretrial identification procedures, making the identical challenge to the pretrial identification procedures addressed in Arguments XIV and XV, ante. (AOB 414-422.) However, Nena Williams’s in-court identification at trial ofYancey wasnotthe subject ofunduly suggestive identification procedures and Clark’s _ claim shouldbe rejected for the same reasonsdiscussed in Arguments XIV and XV, ante, and incorporated herein by reference. 156 XL. THE TRIAL COURT PROPERLY ADMITTED CRIMINAL DEFENSE ATTORNEY JOHN BARNETT’S EXPERT TESTIMONY AS TO THE PRACTICE OF THE CRIMINAL DEFENSE BAR IN PROVIDING DISCOVERY INFORMATION OBTAINED FROM THE PROSECUTION TO SHOW THAT CLARK HAD KNOWLEDGEOFARDELL WILLIAMS’S POTENTIAL TO GIVE CRITICAL, DAMNING TESTIMONYIN THE COMP USA CASE AND THEREBY ESTABLISH HIS MOTIVE TO MURDER HER Clark contends that the trial court improperly permitted Criminal Defense Attorney John Barnett to testify as an expert witness regarding the practice of the criminal defense bar in providing discovery information to clients in criminal cases becausehis testimony wasirrelevant and violated the attorney-client privilege between Clark and his own counsel by inviting speculation as to what occurred between the two in the course of their attorney-client relationship. (AOB 423-435.) However, Barnett’s testimony wasrelevant as circumstantial evidence of Clark’s knowledge ofthe potential for Ardell Williams to givecritical, damning testimony against him in the Comp USAcase and thereby establish his motive to murder Williams. Further, Barnett’s testimonydid not violate the attorney-client privilege because it did not reveal a confidential communication between Clark and his attorney. Asdiscussed in Argument X, ante, only relevant evidenceis admissible. (Evid. Code, § 350; People v. Cunningham, supra, 25 Cal.4th at p. 995.) Relevant evidence is defined as, evidence,including evidencerelevantto the credibility of a witness. . ., having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (Evid. Code, § 210; People v. Cunningham,supra, 25 Cal.4th at p. 995.) A trial court has broad discretion to determine the relevance ofevidence and its exercise of discretion “is not grounds for reversal unless ‘ “the court 157 exercised its discretion in an arbitrary, capricious or patently absurd mannerthat resulted in a manifest miscarriage ofjustice.” ’ [Citations.]” (People v. Ochoa, supra, 26 Cal.4th at pp. 437-438; see also People v. Cunningham, supra, 25 Cal.4th at p. 995.) As this Court observed in People v. Durrant, supra, 116 Cal. at 207-208, “[i]n every criminal case, proof of the moving cause is permissible, and oftentimesis valuable[.]” The jury was instructed according to CALJIC No. 2.51 that it could consider the presence of motive as tending to establish guilt. (7 CT 2686.) The prosecution sought to have John Barnett, a local criminal defense attorney, testify as an expert witness as to the practicesofthe criminal defense bar with respect to providing discovery information, such as information relating to Ardell Williams’s grandjury testimony andpolice interviews,to their clients in criminal cases. The prosecution madea lengthy offer of proofas to the relevance of Barnett’s testimony. (58 RT 10001-10005.) The prosecution describedits theory of motive in the murder of Ardell Williams as follows: It is our theory in this case that [Clark’s trial counsel] was the vehicle of death. He wasthe one whoprocessedthe information to [Clark] that fueled the motive. [Clark], he's over at the Orange County Jail at the time ofArdell Williams'[s}] death. We are not busting his alibi. We are not. Motive is the - is absolutely the most critical aspect of the prosecution of [Clark] in the death ofArdell Williams. Motive is what this case is about. | “And as the court knows, we can't call [Clark] to the stand, and we can't call [Clark’strial counsel] to the stand, and so we are going to have Mr. Barnett testifying about what the standard of care would be in the community, and that this information, and the significance of this information, would be communicated to [Clark].” (58 RT 10000-10001.) 158 Bamett’s testimony was necessary to enable the jury to infer, by circumstantial evidence, Clark’s knowledge regarding the potential of Ardell Williams to providecritical, damning testimony regarding the Comp USA case and thereby to establish his motive to murder Williams. This wasentirely relevant evidence. (See CALJIC No.2.51.) Clark further claims that Barnett’s testimony as to what information a competent defense attorney would have provided to his client in terms of discovery violated the attorney-client privilege by allowing the jury to infer what occurred between Clark andhis attorney. (AOB 430-433.) Clark’s claim is without merit. First, although Clark’s counsel objected to Barnett’s testimony as irrelevant, he never objected to its admissibility on the grounds of attorney-clientprivilege. (58 RT 9993-10015.) Clark’s failure to object in the trial court on the groundsofthe attorney-client privilege forfeited the claim on appeal. (Evid. Code, § 353; see also People v. Seijas, supra, 36 Cal.4th at p. 301 [We have longheld that a party who doesnot object to a ruling generally — forfeits the right to complain of that ruling on appeal.”].) However, even assuming Clark’s claim ofviolation ofthe attorney-client privilege were properly raised on appeal, Barnett’s testimonydid not implicate the privilege. As discussed in Argument XVI, ante, Evidence Codesection 954 creates a privilege for the non-disclosure of “a confidential communication between client and lawyer.” (2,022 Ranch, L.L.C. v. Superior Court, supra, 113 Cal.App.4th at p. 1387.) Evidence Code section 952 defines a “confidential communication between client and lawyer”as, information transmitted between a client and his or her lawyerin the course ofthat relationship and in confidence by a means which,so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whomdisclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose 159 for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyerin the course of that relationship. The party asserting the attorney-client privilege has the burden of demonstrating the applicability of the privilege. (Doe 2 v. Superior Court, supra, 132 Cal.App.4th at p. 1522.) A trial court’s determination regarding the applicability ofthe privilege will only be disturbed upon a showingofan abuse of discretion. (See /d. at p. 1521.) “[A]s is apparent on the face ofthe codesection,it is essential to a claim of privilege that there be a communication.” (Grand Lake Drive In, Inc. v. Superior Court, supra, 179 Cal.App.2d at pp. 125-126.) “It is apparent that some ingredient of disclosure or revelation is essential to the element of communication.” (/d. at p. 126.) Clark’s claim that Barnett’s testimony violated attorney-client privilege fails for the simple reason that Barnett did not disclose the contents of any confidential communication between Clark and his counsel. Barnett’s testimony merely demonstrated that a mechanism existed whereby Clark could have learned of the potential for Ardell Williams to provide critical, damning testimony regarding the Comp USAcase, thereby establishing his motive to murder Williams. It did not involve any disclosure of what actually occurred between Clark and his attorney and therefore did not implicate the attorney-client privilege. Even assuming arguendo that admission of Barnett’s testimony somehow violated the attorney-client privilege, any error was harmless. As discussed in Argument XVI, ante, the attorney-client privileges is purely a creation of state statutory law. (Gonzales v. Municipal Court, supra, 67 Cal.App.3d at p.118.) It is therefore subject to state law harmlesserror analysis under People v. Watson, supra, 46 Cal.2d at 836, and will only result in reversal whereit is reasonably probable that the defendant would have received a more 160 favorable outcomehadthe challenged evidence not been admitted. (See People v. Roldan, supra, 35 Cal.4th at p. 725.) Although Barnett’s testimony did help to explain Clark’s motive to murder Ardell Williams to prevent her from giving potentially damning testimony at his trial in the Comp USA case, there was considerable independent evidence on this point. Williams herself told Special Agent Holliday that “she believed that she would be killed if [Clark] found out that she wastalking.” (52 RT 9094-9095.) Clark also expressed concern aboutthe possibility of Williamstestifying, telling Williams’s sister in a phonecall that he was concerned that the authorities were trying to link him to a crime in Orange County and that he believed Williams was cooperating with the police. (14 CT 5346-5408.) Clark said that the authorities knew things that only Williams knew and “it kinda shocked me” and “I kind of put two and two together.” (14 CT 5356.) Clark was “shocked”that Williams“rolled over so quickly”and it made him “immediately say, never do nothing with her again.” (14 CT 5362.) Clark told Fontenot that ifWilliams testified against him it would “just kinda like wipe me out.” (14 CT 5361.) Clark told Fontenot that “the best answers [Williams] could tell them about meis I don't know.” (14 CT 5380.) Clark explained, “[y]ou're her big sister, she don’t know nothing about me. Whatevershe's told them,that's it. You follow me? ... She can I don't know ‘em to death.” (14 CT 5385.) In Clark’s words, “Anything she has might of already said, she could come to court and get complete amnesia.” (14 CT 5387.) Finally, while in Orange County Jail awaiting trial for the Comp USA robbery and murder of Kathy Lee, Clark showeda trial transcript referencing Ardell Williams to another inmate. (56 RT 9679-9683.) Clark told the inmate, “This is the womanright here that could put me away.” (56 RT 9715.) Basedon this evidence, it is not reasonably probable that Clark would have received a more favorable verdict had Barnett’s expert testimonyas to 161 Clark’s motive to murder Williams not been admitted and any error was harmless. XLI. ALETTERFROM CLARKTO YANCEY INSTRUCTING HER TO OBTAIN FALSE IDENTIFICATION AND USE IT TO OPEN A BANK ACCOUNT WAS NOT INADMISSIBLE CHARACTER EVIDENCE, BUT WAS PROPERLY ADMITTED FOR THE PURPOSES OF ESTABLISHING CLARK’S IDENTITY AS A MAJOR PARTICIPANT IN THE COMP USA CASE AND THE CREDIBILITY OF JEANETTE MOORE’S TESTIMONY Clark contends that the trial court improperly admitted a letter from Clark to Yancey discovered in Yancey’s apartment in which Clark instructed Yanceyto obtain a false driver’s license and use it to open a bank account, in violation of Evidence Code section 1101's prohibition against the use of character evidence. (AOB 436-442.) However, the letter was properly admitted for the purposesofestablishing Clark’s identity as a major participant in the Comp USAcaseandthe credibility ofJeanette Moore’s testimony about obtaining and using the Dena Carey driver’slicense. During a pretrial hearing, Clark sought to exclude a letter written by Clark to Yanceythat had been seized during the search ofYancey’s apartment making reference to obtaining identification using a false name andusingit to open a bank account which Clark argued should be excluded under Evidence Code section 1101, subdivision (b).(16 RT 3167-3168, 3170, 3176-3182, 37. A portion ofthe letter in question read: When you get the I.D. for Keisha Jackson, open an account at Long Beach Bank. I'll explain to you what the benefits are. I know I'm looking forward to coming home. (16 RT 3192.) 162 3186-3193.) The prosecutor argued that the letter corroborated Jeanette Moore’stestimonythat Clark helped her obtain a fraudulent driver’s license and use it to obtain credit cards and to rent the U-Haul that was used in the Comp USArobbery. (16 RT 3168.) Thetrial court agreed with the prosecution and overruled Clark’s objection, finding that “it does have corroboration of some of the witnesses that the defense views as accomplices.” (16 RT 3170, 3190-3191, 3193.) Under Evidence Code section 1101, evidence of the defendant’s commission ofa crime other than the charged offense is not admissible to show the defendant's bad character or predisposition to criminality, but “may be admitted to prove some material fact at issue, such as motive or identity.” (People v. Roldan, supra, 35 Cal.4th at p. 705.) “In cases in which the prosecution seeks to prove the defendant's identity as the perpetrator of the charged offense by evidence he had committed uncharged offenses, admissibility ‘depends upon proofthat the charged and uncharged offenses share distinctive common marks sufficient to raise an inference ofidentity.”” [Citation.] A somewhat lesser degree ofsimilarity is required to show a commonplan or scheme andstill less similarity is required to show intent. [Citation.] (Ibid.) Onappeal, a trial court’s ruling regarding the admissibility of evidence under Evidence Code section 1101 will not be disturbed absent a showing of an abuse ofdiscretion. (/bid.) The letter from Clark to Yancey instructing Yancey to obtain a false driver's license and useit to open a bank accountwasrelevant for a number of purposes. It was established at trial that Jeanette Moore had used a false driver’s license to rent a U-Haultruck that was later found by police near the ‘Comp USAstore that was robbed by NokkuwaErvin and where Kathy Lee was murdered. Mooretestified that Clark had helped her to obtain the false driver’s license and that she had usedit at his direction to obtain credit cards and rent the U-Haul that was found by police. Ardell Williams,in her police interviews 163 and grandjury testimony, had indicated that she had seen Clark drive a U-Haul after they left the Del Taco restaurant near the Comp USAstore and Clark admitted that the Comp USA washis nexttarget. Accordingly, the use of the Dena Carey driver’s license to obtain the U-Haul was relevantto identifying Clark as the mastermindofthe robbery and Jeanette Moore's testimony on this point was vigorously attacked by the defense. Evidenceofvirtually identical activity, wherein Clark had instructed another woman, Antoinette Yancey, to obtain false identification in order to open a bank account and lay the groundwork for a scheme of which Clark would inform herofthe “benefits”later (16 RT 3192), tended to show Clark’s modus operandi of obtaining false identification for individuals in order for them to take necessary preliminary steps for his criminal enterprises, such as renting U-Hauls or opening bank accounts,that would be moredifficult to later trace than ifthey had usedtheir real names,in order to avoid identification and detection was part of his modus operandi. As Clark had placed his participation in the Comp USArobbery and murderat issue by pleading not guilty and as the letter had a tendency to show his identity and M.O.in the robbery, the evidence was properly admissible under Evidence Code section 1101, subdivision (b). (See People v. Roldan, supra, 35 Cal.4th at pp. 705-706.) The letter was also admissible to corroborate Moore’s testimony under Evidence Code section 1101, subdivision (c). (See People v. Douglas, supra, 50 Cal.3d 468, 510 [prior act evidence admissible under 1101 to corroborate witness’s testimony implicating defendant as perpetrator of murders], overruled on other grounds in People v. Marshall, supra, 50 Cal.3d at p. 933, fn. 4.) Further, the evidence was properly admitted under Evidence Code section 352. As discussed in Argument XXVI, ante, Evidence Codesection 164 352 provides that a court, in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption oftimeor (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. Evidence will be found to be substantially more prejudicial than probativeif “it poses an intolerable ‘risk to the fairness of the proceedings or the reliability ofthe outcome’[citation].” (People v. Waidla, supra, 22 Cal.4th at p. 724.) A reviewing court will only disturb a trial court’s ruling under Evidence Code section 352 weighing prejudice and probative value upon a showingofan abuse ofdiscretion. (/bid.) Thetrial court’s weighing ofprobative value versusthe prejudice ofthe letter instructing Yanceyto obtain a false identification was not an abuse of discretion. As discussed above,the letter was quite probative on the issue of Jeanette Moore’s credibility and Clark’s identity as a major participant in the Comp USAcase. In contrast, the admission of the letter did not pose “an intolerable ‘risk to the fairness of the proceedings or the reliability of the outcome’[citation].” (People v. Waidla, supra, 22 Cal.4th at p. 724.) The _ Suggestion that Clark had instructed Yanceyto obtain a false identification for the purposes of opening a bank account was not the sort of matter likely to inflame the passion and prejudices of the jurors. Thetrial court’s conclusion that the letter was admissible under Evidence Code section 352 was proper. However, even assuming the trial court improperly admitted the letter into evidence, any error was harmless. A judgment will not be reversed on appeal based on an error in the admission of evidence under Evidence Code sections 1101 and 352 unlessit is reasonably probable that the defendant would have obtained a more favorable result had the evidence not been admitted. (See People v. Cole (2004) 33 Cal.4th 1158, 1195, citing People v. Watson, supra, 46 Cal.2d at p. 836.) As discussed previously, the circumstantial evidence of 165 Clark’s guilt was overwhelming, independent of any suggestion that he had instructed Yancey to obtain a false identification to use in opening a bank account in an unrelated circumstance. It is not reasonably probable Clark would have obtained a more favorable result had the letter not been admitted. XLIt. THE TRIAL COURT’S INSTRUCTIONS ON REASONABLE DOUBT AND CIRCUMSTANTIAL EVIDENCE ADEQUATELY EXPLAINED THE LAW AND DID NOT LESSEN THE PROSECUTION’S BURDEN OF PROOF BEYOND A REASONABLE DOUBT Clark contends that the trial court improperly instructed the jury according to CALJIC Nos. 2.90, Presumption ofInnocence - Reasonable Doubt - Burden of Proof; 2.01, Sufficiency of Circumstantial Evidence - Generally, and 2.02, Sufficiency of Circumstantial Evidence to Prove Specific Intent Or Mental State. He claims that CALJIC No. 2.90 is “incomprehensible to a modern jury” and that CALJIC Nos. 2.01 and 2.02 undermined the prosecution’s burden of proof beyond a reasonable doubt. (AOB 443-454.) Thetrial court, without objection, instructed the jury on the burden of proof beyond a reasonable doubt according to CALJIC No. 2.90 as follows: A defendantin a criminal action is presumedto be innocent until the contrary is proved, and in case of a reasonable doubt whether[his] guilt is satisfactorily shown,[he] is entitled to a verdict of not guilty. This presumption places upon the People the burden ofproving [him] guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which,after the entire comparison and consideration ofall the evidence, leaves the 166 minds of the jurors in that condition that they cannot say they feel an abiding conviction ofthe truth of the charge. (7 CT 2696.) This Court has previously found CALJIC No. 2.90 to be “‘a 2 99constitutionally sound description of reasonable doubt.’ (People v. Turner (1994) 8 Cal.4th 137, 203, overruled on other grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5; see also People v. Davis (1995) 10 Cal.4th 463, 520-521; People v. Webb (1993) 6 Cal.4th 494, 531.) While this Court has noted that there has been “strong criticism” of CALJIC No. 2.90 andthat “substantial modification ofthe instruction is desirable,” this Court also noted that the United States Supreme Court found the instruction not to violate due process in Victor v. Nebraska (1994) 511 U.S. 1, 7-17 [114 S.Ct. 1239, 127 L.Ed.2d 583]. (People v. Davis, supra, 10 Cal.4th at p. 520.) Clark relies principally on Justice Mosk’s concurrence in People v. Brigham (1979) 25 Cal.3d 283, 292-316 (conc. opn. of Mosk, J.), wherein Justice Moskcriticized CALJIC No. 2.90 and its formulation of reasonable doubt. (AOB 445-448.) However, a numberofJustice Mosk’s criticisms have been addressed, such as the deletion of the phrases “moral evidence” and “moral certainty” from the instruction. (See People v. Ray (1996) 13 Cal.4th 313, 347, fn. 17.) Accordingly, this Court should reject Clark’s challenge to CALJIC No. 2.90. (See People v. Turner, supra, 8 Cal.4th at p. 203.) Clark’s contention that the tnal court’s circumstantial evidence instructions (CALJIC Nos. 2.01 and 2.02) unconstitutionally lightened the prosecution's burden of proof and created an unconstitutional mandatory presumption similarly fails. (AOB 450-454.) This Court has previously and repeatedly rejected this claim and Clark provides no basis for this Court revisiting its prior holdings. 167 Thetrial court instructed thejury with the standard CALJICinstructions 2.01 and 2.02. (CT 7 CT 2660-2661.) As this Court has explained, “{T]}hese instructions [CALJIC Nos. 2.01 and 2.02] properly direct the jury to accept an interpretation of the evidence favorable to the prosecution and unfavorable to the defense only ifno other ‘reasonable’ interpretation can be drawn. Particularly when viewed in conjunction with the otherinstructions correctly stating the prosecution's burden to prove defendant’s guilt beyond a reasonable doubt, these circumstantial evidence instructions do not reduce or weaken the prosecution's constitutionally mandated burden of proof or amount to an improper mandatory presumption of guilt. [Citations.]” (People v. Koontz (2002) 27 Cal.4th 1041, 1084-1085, quoting People v. Kipp, supra, 18 Cal.4th at p. 375; see also People v. Davis, supra, 10 Cal.4th at p. 521.) For the samereasonsreiterated by this Court in Koontz, Clark’s claim must be rejected. (See People v. Koontz, supra, at pp. 1084-1085.) XLITI. THE TRIAL COURT PROPERLY INSTRUCTED THE JURY ACCORDING TO CALJIC NO. 2.05, EFFORTS OTHER THAN BY DEFENDANT TO FABRICATE EVIDENCE, BECAUSE THERE WAS AMPLE EVIDENCE THAT CLARK AUTHORIZED THE EFFORTS OF THIRD-PARTIES TO PROCURE FALSE OR FABRICATED EVIDENCE FROM ARDELL WILLIAMS, JEANETTE MOORE AND ALONZO GARRETT Clark contendsthat it was improper for thetrial court to instruct the jury according to CALJIC No.2.05,*” regarding “Efforts Other than by Defendant 38. The jury wasinstructed according to CALJIC No.2.05 as follows: Ifyou find that an effort to procure false or fabricated evidence was madeby anotherperson for the defendant's benefit, you may not consider that effort as tending to show the defendant's 168 to Fabricate Evidence,” because there was insufficient evidence that he was present during, or authorized, any third-party efforts to fabricate evidence. (AOB 455-464.) However,the trial court properly gave the instruction because there was ample evidence that Clark authorized the efforts of third-parties to procurefalse or fabricated evidence from Ardell Williams, Jeanette Moore, and Alonzo Garrett and, in any event, any error was harmless. During a hearing on the proposed jury instructions, the trial court addressed the prosecution’s request to instruct the jury according to CALJIC No. 2.05. (63 RT 10578-10579.) Thetrial court asked the prosecutor what the proposedinstruction referred to. The prosecutorfirst indicated that it addressed Clark’s efforts, during his tape recorded conversation with Ardell Williams’s sister Liz Fontenot, to convince Fontenot to “get selective amnesia.” (63 RT 10578.) Clark’s counsel objected that this was an effort by Clark to fabricate evidence, which was already addressed in CALJIC No. 2.04, Efforts by Defendant to Fabricate Evidence. Thetrial court disagreed. The prosecutor then indicated that the instruction also related to Clark’s efforts to have Sean Birney, a fellow inmate in the Orange County Jail, write letters to Alonzo Garrett and Jeanette Moore seeking to dissuade them from testifying. Thetrial court, without objection, ruled that CALJIC No. 2.05 would be given. Although Clark’s counsel challenged one ofthe three instances cited by the prosecution to support giving the instruction as being an effort by Clark to fabricate, rather than an effort by a third-party, his silence in the face of the other two cited instances forfeits the claim on appeal. (See People v. Valdez consciousness of guilt unless you also find that the defendant authorizedthateffort. Ifyou find defendant authorizedthe effort, that conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide. (7 CT 2664.) 169 (2004) 32 Cal.4th 73, 137 [failure to object to giving CALJIC No. 2.06 forfeited claim oferror].) However, regardless, the jury was properly instructed according to CALJIC No.2.05. “ “It is an elementary principle oflaw that before ajury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference.’” (/bid.) Instructing the jury according to CALJIC No. 2.05 that it could infer consciousness of guilt based on third-party efforts to fabricate evidence is appropriate when the record establishes that the defendant has authorized the effort to procure the false or fabricated evidence. (See People v. Hannon (1977) 19 Cal.3d 588, 600; People v. Terry (1962) 57 Cal.2d 538, 565-566.) The defendant’s authorization to a third-party to procure false or fabricated evidence may beestablished by circumstantial evidence. (/d. at p. 566.) However, something more than mere opportunity or evidence of a personal relationship between the defendant and the third-party must be shown in order to establish the defendant’s authorization. (Ibid.; People v. Williams (1997) 16 Cal.4th 153, 200-201.) In each instance, there was sufficient evidence presented at trial that Clark authorized the third-party attempts to procure false or fabricated evidence to support giving CALJIC No.2.05. In the case ofLiz Fontenot, Clark, during his tape recorded conversation, told Fontenotthat if Williamstestified against him it would “just kinds like wipe me out.” (14 CT 5361.) Clark told Fontenot that “the best answers [Williams] could tell them about meis I don't know.” (14 CT 5380.) Clark explained,“[y]ou’re her big sister, she don't know nothing about me. Whatever she’s told them,that's it. You follow me? ... She can I don’t know ‘em to death.” (14 CT 5385.) In Clark’s words, “Anything she has 170 mightofalready said, she could cometo court and get complete amnesia.” (14 CT 5387.) The clear implication of Clark’s statements to Fontenot was that she should convince Williams’s to cease her cooperation with the police andtestify falsely that she either did not know or did not remember the events in question.” This was a nakedattempt by Clark to personally convince Fontenot to influence hersister to testify according to Clark’s wishes and the tape recording was direct evidence ofthat effort. With respect to the letter seeking to dissuade Jeanette Moore from testifying and the death threat received by Alonzo Garrett,as discussed in Argument XXVIII, ante, there was substantial evidence that Clark authorized Orange County Jail inmate Sean Burneyto send theletters. Birney’s fingerprints were found on the envelope andletter sent to Mooreand onthe threatening letter to Garrett confiscated from Clark’scell. (47 RT 8286-8293; 57 RT 9939-9942.) After the letter to Garrett was confiscated, Clark admitted to Deputy Desensthat the letter to Garrett belonged to him and askedforits return. (57 RT 9943-9944.) Clark’s acknowledgment of ownership would enable the jury to conclude that Clark had authorized the 39. Clark also arguesthat the instruction was improper becausethereis no evidence that Fontenot actually did attempt to persuade Williamstotestify falsely. (AOB 457-459.) However, after the conversation in which Clark suggested that Williamsget “amnesia,” he spoke to Fontenot again. Fontentot told Clark that she had spoken to Williams as Clark had asked and that Williams hadindicated that she was mostly answering police questions with,“I don't knows.” (14 CT 5394-5395.) Although Fontenotdid not expressly state that she had suggested to Williams giving this sort of answer during their conversation, this was certainly circumstantial evidence that Fontenot had made some sort of attempt to influence Williams’s testimony during their conversation. 40. Thetext ofthe letter and article sent to Mooreare found at 6 CT 2242-2245. The text of the letter sent to Garrett is found at 6 CT 2241. 171 creation ofthe letter to dissuade Garrett, as well as the further inferencethat, if he had authorized Birney’s efforts to dissuade Garrett, he had authorized Bimey’s efforts to dissuade Moore as well. The jury could conclude from this evidence that Clark was utilizing Birney to authorletters to dissuade witnesses in the case from testifying at trial. This evidence directly connected Clark to the letters and wassufficient to justify giving CALJIC No.2.05. Even if the trial court improperly instructed the jury according to CALJIC No. 2.05, any error was harmless. Error in instructing the jury regarding consideration ofevidence ofdefense efforts to fabricate evidencewill not result in reversal of the judgmentunless it is reasonably probable that the defendant would haveobtained a more favorable result had the instruction not been given. (See, e.g., People v. Hannon, supra, 19 Cal.3d at p. 603 [applying People v. Watson, supra, 46 Cal.2d at p. 836, where evidence did not support giving CALJIC No. 2.06.].) There is simply no reasonable likelihood that CALJIC No. 2.05 caused the jury to draw an impermissible inference. As the Court of Appeal noted in People v. Gutierrez (1978) 80 Cal.App.3d 829, 837, such an instruction is given for a defendant’s benefit. The language of the instruction expressly warns jurors that evidence that a defendant authorized an effort to procure false or fabricated testimonyis not sufficient to establish his guilt. Thus, even if the jury inferred consciousness of guilt based on Clark’s efforts to convince Williams, Moore, and Garrett to fabricate evidence, the instruction required that thejury consider the other evidence presentedat trial in orderto justify a guilty verdict. In addition, CALJIC No. 2.05 admonishedthejury that unless it found that defendant authorized the efforts as fabricated, no inference of consciousnessofguilt could be drawn. Furthermore, the jury was specifically instructed according to CALJIC No. 17.31 to disregard any instructionsit found factually inapplicable. (7 CT 2771-A.) Further, there was overwhelming circumstantial evidence of Clark’s guilt independent of the evidence that he 172 sought third-party assistance in procuring false or fabricated evidence. It is therefore not reasonably probable that Clark would have obtained a more favorable result had CALJIC No. 2.05 not been given. XLIV. THE TRIAL COURT HAD NO SUA SPONTE OBLIGATION TO INSTRUCT THE JURY ACCORDING TO CALJIC NO. 2.91, BURDEN OF PROVING IDENTITY BASED SOLELY ON EYEWITNESSES, AND THE INSTRUCTIONS GIVEN ADEQUATELY ADDRESSED EYEWITNESS IDENTIFICATION AND THE PROSECUTION’S BURDEN OF PROOF Clark contendsthat the trial court improperly failed to instruct the jury according to CALJIC No. 2.91, Burden of Proving Identity Based Solely On Eyewitnesses*” (AOB 465-469.) However, the trial court was under no obligation to instruct the jury according to CALJIC No. 2.91 and the instructions given adequately addressed eyewitness identification and the prosecution’s burden ofproof. The trial court was underno obligation to instruct the jury according to CALJIC No. 2.91 because Clark did not request such aninstructionin thetrial court (7 CT 2623-2652; 63 RT 10574-10679; 64 RT 10698-10807) and the otherinstructions given adequately addressedanyissues relating to eyewitness 41. CALJIC No. 2.91 provides: The burdenis on the People to prove beyond a reasonable doubt that the defendantis the person who committed the crime with which[he] [she] is charged. If, after considering the circumstancesofthe identification [and any other evidence in this case], you have a reasonable doubt whether defendant was the person who committed the crime, you must give the defendantthe benefit ofthat doubt and find [him] [her] not guilty. 173 identification. This Court has previously observedthat trial courts do not have a sua sponte duty to instruct with CALJIC No. 2.91 where “the court’s ‘general instructions on credibility and burden ofproofwere sufficient to inform thejury ofthe test they should applyto the identification evidence.’ ” (People v. Alcala, supra, 4 Cal.4th at pp. 802-803.) Here, as in Alcala, the trial court instructed the jury according to CALJIC No.2.20, Believability ofWitness; CALJIC No. 2.21.1, Discrepancies In Testimony; CALJIC No. 2.22, Weighing Conflicting Testimony; CALJIC No.2.27, Sufficiency of Testimony of One Witness, and CALJIC No. 2.90, Presumption of Innocence - Reasonable Doubt - Burden of Proof. (7 CT 2675-2677, 2679, 2681, 2696.) These instructions, clearly addressed [Clark’s] challengeto thereliability of the testimony which identified him” and “were sufficient to inform the jury that the prosecution had the burden of establishing identity, and that [Clark] should be acquitted in the event the jury harbored a reasonable doubt on the issue of identity. (See People v. Alcala, supra, 7 Cal.4th at p. 803.) XLV. THE TRIAL COURT WAS UNDERNO OBLIGATION TO INSTRUCT THE JURY ACCORDING TO CALJIC NO. 3.02 ON THE NATURAL AND PROBABLE CONSEQUENCES DOCTRINE AS TO COUNT 1 BECAUSE THE PROSECUTION RELIED SOLELY ON A FELONY-MURDER THEORYAS TO THAT COUNT Clark contendsthat the trial court had a sua sponte obligationto instruct thejury according to CALJIC No.3.02, Principals-Liability for Natural and ' Probable Consequences. (AOB 470-480.) However, because the prosecution did not rely on the natural and probable consequences doctrine as a theory of liability for any ofthe charged offenses,the trial court was underno obligation to give such an instruction to the jury. 174 Trial courts have a sua sponte duty to instruct the jury “ ‘on general principles oflaw that are closely and openly connected with the facts presented at trial.’ ” (People v. Avila, supra, 38 Cal.4th at p. 567.) This includes instructing on the natural and probable consequences doctrine where the doctrine is relied on by the prosecution as a theory of liability and there is evidence to support it. (See /d. at p. 568.) Trial courts also have a, correlative duty “to refrain from instructing on principles of law which not only are irrelevantto the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.” (People v. Saddler (1979) 24 Cal.3d 671, 681.) Clark contends that the prosecution relied on the natural and probable consequencesdoctrine as a theory ofliability for the murder ofKathy Leeat the Comp USAstore charged in Count 1. (AOB 471.) However,the record does not support his contention. | At the close of trial, the prosecution submitted CALJIC No. 3.02 regarding the natural and probable consequences doctrine as a proposed jury instruction.(7 CT 2632.) However, at a hearing on the proposed jury 42. CALJIC No.3.02 provides: One whoaids and abets [another] in the commission ofa crime[or crimes] is not only guilty of [that crime] [those crimes], but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crime{s] originally aided and abetted. In order to find the defendant guilty of the crime(s] of , [as charged in Count(s] __ ,] you must be satisfied beyond a reasonable doubtthat: 1, The crime [or crimes] of [was] [were] committed; 2. That the defendant aided and abetted [that] [those] crime[s]; 175 instructions, the prosecution, without objection, withdrew its request that the instruction be given. (64 RT 10754.) As to Count 1, the jury was ultimately only instructed according to a felony-murder theory. (7 CT 2733-2743.) This wasthe only theory ofmurder argued by the prosecutor as to Count 1. (65 RT 10819-10821.) As the prosecutor noted in his closing argument, [W]ith respect to the murder of Kathy Lee [in Count1], the theory so to speak, the type of malice or the type of mental state is felony murder. (65 RT 10820.) The felony-murder rule and the natural and probable consequences doctrine are two separate and distinct theories of criminalliability. (People v. Culuko (2000) 78 Cal.App.4th 307, 322.) Under the felony-murderrule, a 3. That a co-principal in that crime committed the crime[s] of ; and 4. The crime[s] of [was] [were] a natural and probable consequence of the commission ofthe crime[s] of [In determining whether a consequence is “natural and probable,” you must apply an objective test, based not on what the defendant actually intended, but on what a person of reasonable and ordinary prudence would have expectedlikely to occur. The issue is to be decided in light of all of the circumstances surrounding the incident. A “natural” consequence is one which is within the normal range of outcomes that may be reasonably expected to occur if nothing unusual has intervened. “Probable” meanslikely to happen.] [You are not required to unanimously agree as to which originally contemplated crime the defendant aided and abetted, so long as you are satisfied beyond a reasonable doubt and unanimously agree that the defendant aided and abetted the commission ofan identified and defined target crime andthat the crime of (charged crime) was a natural and probable consequence of the commission ofthat target crime.] 176 homicideis first-degree murder whereit is committed during the commission of certain enumerated felonies, including robbery and burglary. (Pen. Code, § 189; see People v. Cavitt (2004) 33 Cal.4th 187, 197.) The specific intent required is merely the intent to commit the underlying felony. (/bid.) In contrast, under the natural and probable consequences doctrine, a person whoencouragedorfacilitated the commission of a crime could be held criminally liable for the crime he encouragedorfacilitated, as well as for “any other offense that was a ‘natural and probable consequence’ of the crime aided andabetted.” (People v. Avila, supra, 38 Cal.4th at p. 567.) As Justice Werdegar noted in her concurring opinion in Cavitt, Commentators have observed that the two complicity rules (that governing felony murder and that governing aiding and abetting generally) involve similar imputations of conduct and culpability [citation] and may be seen as general and specific aspects of the same problem- “the problem ofthe responsibility of one criminal . . . for the conduct of a fellow-criminal . . . who, in the process of committing or attempting the agreed-upon crime, commits another crime”[Citation]. The language used to define the scope of the tworulesalso is linked historically in California law. [Citations.] Nevertheless, complicity appears broader under the felony-murderrule than underthe natural and probable consequencesdoctrine, which wehave describedas resting on foreseeability, in that a felon may be held responsiblefor a killing by his or her cofelon, under the felony-murderrule, evenifthe killing was not foreseeable to the nonkiller because “the plan as conceived did not contemplate the use or even the carrying ofa weaponor other dangerous instrument.” [Citation.] (People v. Cavitt, supra, 33 Cal.4th at p. 212, fn.2 (conc. opn. ofWerdegar,J.) Here, the prosecution’s theory was that Kathy Lee was murderedin the course ofthe burglary and robbery ofthe Comp USAstore, crimes which Clark aided and abetted through his meticulous planning and organization of the details necessary for their commission. These are two of the felonies enumerated under Penal Code section 189. Accordingly, it was unnecessary to show that Lee’s murder was a necessary and probable consequence of the burglary and robbery. (See bid.) Indeed, improperly interjecting the principles 177 of forseeability underlying the natural and probable consequencesdoctrineinto the case would have undermined the policy rationale at the heart of the felony-murderrule, since, as this Court has noted, The purposeofthe felony-murderrule is to deter those who commit the enumerated felonies from killing by holding themstrictly responsible for any killing committed by a cofelon, whether intentional, negligent, or accidental, during the perpetration or attempted perpetration of the felony. (People v. Avila, supra, 33 Cal.4th at p. 197.) To instruct on a wholly superfluous theory of liability would have injected uncertainty and confusion into an otherwise orderly trial. Accordingly, as the natural and probable consequences doctrine wasnot closely and openly connected to the facts of the case, the trial court was under no obligation to instruct the jury according to CALJIC No.3.02. XLVI. THE TRIAL COURT PROPERLY DECLINED TO INSTRUCT THE JURY THAT ARDELL WILLIAMS, JEANETTE MOORE, AND MATTHEWWEAVERWERE ACCOMPLICES AS A MATTER OF LAW UNDER CALJIC NO. 3.16 BECAUSE THE EVIDENCE WAS NOT CLEAR AND UNDISPUTED ON THIS POINT AND IT WAS THEREFORE APPROPRIATE TO INSTRUCT THE JURY TO DETERMINE WHETHER THE WITNESSES WERE ACCOMPLICES ACCORDING TO CALJIC NO. 3.19 Clark contendsthatthe trial court improperly declined to instruct the jury according to CALJIC No. 3.16, Witness Accomplice as Matter ofLaw,that 43. CALJIC No. 3.16 provides: If the crime of was committed by anyone, the witness was an accomplice as a matter oflaw and[his] [her] testimony is subject to the rule requiring corroboration. 178 Matthew Weaver, Ardell Williams, and Antoinette Yancey were accomplices as a matter oflaw andtheir testimony therefore required corroboration. (AOB 481-488.) However, the evidence wasnot clear and undisputed as to these witnesses’ status as accomplices and it was appropriate to have the jury make this determination according to CALJIC No. 3.19. Penal Codesection 1111 requires corroboration ofaccomplice testimony and defines an accompliceas “one whois liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony ofthe accompliceis given.” (Pen. Code, § 1111; People v. Williams, supra, 16 Cal.4th at p. 679.) The determination of whether a witness is an accomplice is a factual question for the jury to resolve “ ‘unless the evidence permits only a single inference.’ ” (/bid.) A trial court can therefore “decide as a matter of law whethera witnessis or is not an accomplice only whenthe facts regarding the witness's criminal culpability are ‘clear and undisputed.’ ” (Ibid.) “In order to be chargeable with the identical offense, the witness must be considered a principal under [Penal Code] section 31,” which defines principals as, [a]ll persons concerned in the commission of a crime. .. whether they directly commit the act constituting the offense, or aid and abetin its commission, or, not being present, have advised and encouragedits commission.. . (People v. Horton, supra, 11 Cal.4th at pp. 1113-1114.) “An accomplice must have ‘ “guilty knowledge and intent with regard to the commission of the crime.” ’ ” (People v. Lewis (2001) 26 Cal.4th 334, 369.) However, an accessory, cannot be prosecuted for the identical offense, and therefore is not an accomplice. (Ibid.) During a hearing on the proposed jury instructions, Clark’s counsel argued that the jury should be instructed according to CALJIC No. 3.16 that 179 Matthew Weaver, Jeanette Moore, and Ardell Williams were accomplicesas a matter of law. (64 RT 10740.) Thetrial court disagreed, holding that the jury should determine whether these witnesses were accomplices according to CALJIC No. 3.19. (64 RT 10741-10742.) Thetrial court later instructed the jury according to CALJIC No. 3.19, Burden to Prove Corroborating Witness Is an Accomplice“ along with the panoply of standard accomplice instructions (CALJIC Nos. 3.10, 3.11, 3.12, 3.13, 3.14, and 3.18). (7 CT 2700-2706.) In finding that the evidence wasinsufficient to establish that Williams, Moore, and Weaverwere accomplices as a matter oflaw, the court madespecial note of Weaver, explaining, I particularly, for purposes ofthe record, want to speak out on Matt Weaver, who in this court's opinion, if anyone would fall under the mantel of [accomplice] as a matter of law, it would be more likely he than the other two. The court does not feel that even in his case it would be as a matter of law. It would be a question offact for the jurors. I will indicate for the record that during some of our out-of-court time I did spend considerable time reviewing the law on accomplices, and we do haveevidence before the jury from his own mouth, whether they believe him or not, that the extent of his involvement was not criminal in nature. 44. The jury wasinstructed according to CALJIC No. 3.19 as follows: You must determine whether the witnesses Ardell Williams, Jeanette Moore and/or Matthew Weaver were accomplicesas I have defined that term. The defendant has the burden of proving by a preponderanceofthe evidence that a witness was an accomplice in the crimes charged against the defendant. In determining whether the defendant has met this burden you mayconsider evidence presented by the prosecution as well as that presented by the defense. 180 If they elect to believe him, then of course that would dispel [his] accomplice role in all respects. But again, that becomes a question of fact for the jury and credibility. (64 RT 10742.) The trial court correctly concluded that the evidence of Williams’s, Moore’s, and Weaver’sstatus as accomplices was not “clear and undisputed” and therefore susceptible ofonly one interpretation, as required in orderto find these witnesses to be accomplices as a matter of law. (People v. Williams, supra, 16 Cal.4th at p. 679.) The evidence presented as to each of these individuals did not establish the essential element required for accomplice liability as to the charged offenses: the “ ‘ “guilty knowledge and intent with regard to the commission ofthe crime.” ’” (People v. Lewis, supra, 26 Cal.4th at p. 369.) Clark improperly focuses on the witnesses’s participation in other uncharged criminalacts: i.e. the theft, the fraudulent traveler’s check scheme, and the fraudulent driver’s license. (AOB 483-484.) However, under Penal Code section 1111, an accompliceis only “one whois liable to prosecution for the identical offense charged against the defendantontrial in the cause in which the testimony of the accomplice is given.” (Pen. Code, § 1111, emphasis added.) Therefore, only the charged offenses relating to the Comp USA case and Williams’s murderare relevant to the instant inquiry. First, as to Williams, although she accompanied Clark while he cased the Comp USAstore prior to the robbery, she did not provide Clark with any advise or assistance or otherwise participate or share in the criminal intent underlying the crimes. (50 RT 8741-8747.) While Clark presented the _testimony ofWilliams’s psychiatrist that Williams told her during therapythat she had gone to dinner with an ex-boyfriend namedBill and that after dinner they had stopped to rob a computerstore in Fullerton and shot a clerk, (61 RT 10272-10273), there was no other evidence supporting this statementand,at 181 best it created a factual question as to Williams’s accomplice status to be resolved bythe jury, as the jury was instructed to do according to CALJIC No. 3.19, Moore similarly lacked the knowledge and intent necessary to be charged with the identical offenses as Clark. Although obtaining the Dena Careycredit card andusingit to rent the U-Haul truck was ofassistance, there wasno evidenceto indicate that she was aware of Clark’s intended use ofthe U-Haul or the plan to rob the Comp USA. Again, this was at best a jury question to be resolved per CALJIC No.3.19. Finally, the trial court’s observation regarding Matthew Weaverwasan accurate assessmentofthe state ofthe record. Although Clark sought to paint Weaveras a culpable participant in the Comp USA robbery, Weaver’s own statements to the police and in-court testimony indicated that he was an unwitting participant, believing that Clark ownedthe store and that he would receive $100 to move computers in the store. (45 RT 8002-8012.) Again, Weaver’s status as an accomplice in the Comp USA robbery was a jury question to be resolved as required under CALJIC No.3.16. However, even assumingthetrial court should have instructed the jury that one or more ofthese witnesses was an accomplice as a matter of law, any error was harmless. First ofall, the jury wasinstructed that it was required to determine whether these witnesses were accomplices and to view accomplice testimony with distrust. (7 CT 2705-2706.) Further, the failure to give an appropriate accomplice instruction will be found to be harmless wherethere is “sufficient corroborating evidence in the record.” [Citation.] To corroborate the testimony of an accomplice, the prosecution must present “independent evidence,”that is, “evidence that tends to connect the defendant with the crime charged”withoutaid or assistance from the accomplice’s testimony. [Citation.] Corroborating evidenceis sufficient if it tends to implicate the defendant and thusrelates to someactor fact that is an element of the crime. [Citations.] “ ‘[T]he corroborative 182 evidence maybeslight and entitled to little consideration when standing alone.’ [Citation.]” [Citation.] (People v. Avila, supra, 38 Cal.4th at pp. 562-563.) There was ample corroborating evidence ofClark’s guilt. In addition to a BMWlike Clark’s being seen leaving the scene of the Comp USArobbery, Clark’s statements to Garrett that Williams could “put [him] away” for the Comp USAcase andhis successful efforts to murder Williams to prevent her from testifying in the case demonstrated his consciousness of guilt and, in conjunction with the other evidence in the case, adequately corroborated their testimony regarding his participation in the Comp USArobbery and murder. XLVI. CLARK FORFEITED ANY CHALLENGE TO CALJIC NO. 6.14 BY NOT OBJECTING IN THE TRIAL COURT AND, IN ANY EVENT, CALJIC NO.6.14 IS A CORRECT STATEMENTOFLAW RELATING TO THE CRIME OF CONSPIRACY Clark contends that the trial court improperly instructed the jury according to CALJIC No.6.14,*’ “Acquaintance with All Co-conspirators Not Necessary,” and that this instruction improperly lessened the prosecution’s 45. Thetrial court instructed the jury according to CALJIC No. 6.14 as follows: It is not a defense to the crime of conspiracy that an alleged conspirator did not knowall the other conspirators. [The members of a conspiracy may be widely separated geographically, and yet may be in agreement on a criminal design and may act in concert in pursuit of that design.] The adoption by a person ofthe criminal design and criminalintent entertained in commonbyothers and ofits object and purposesisall that is necessary to makethat person a co-conspirator when the required elements of a conspiracy are present. (7 CT 2720.) 183 burden ofproof. Clark argues that, because co-defendant Yancey’sjury did not find an allegation that Yancey personally used a firearm in Williams’s murder to be true beyond a reasonable doubt, a separate conspiracy must have existed between Yancey and some third party to murder Williams and there was no evidence to connect Clark to this conspiracy. (AOB 489-493.) However, Clark forfeited the claim by failing to object to the instruction in the trial court and, in any event, CALJIC No.6.14 is a correct statement oflaw and the jury verdict in Yancey’strial was notbinding in the instant case and had no effect on the instructions given. In thefirst instance, Clark forfeited any objection to CALJIC No.6.14. A criminal defendant’s failure to object to a jury instruction forfeits any challenge to the instruction on appeal. (People v. Jones (2003) 29 Cal.4th 1229, 1258.) During a hearing on the proposed jury instructions, Clark’s counsel wasexpressly askedifhe objected to the trial court instructing the jury according to CALJIC No. 6.14. Clark’s counsel responded that he had no objection. (63 RT 10607.) This forfeited the claim on appeal. (See /bid.) However, even assuming Clark’s claim is properly raised in this Court, it is without merit. CALJIC No.6.14 is a correct statement oflaw regarding the offense of conspiracy. (See People v. Van Eyk (1961) 56 Cal.2d 471, 479 (“The fact that the defendant may not have personally knownthe identity or exact functions ofall the members of the conspiracy is immaterial.”’].) Clark nonetheless argues that it was improper to give the instruction in this case because ofthe possibility that there was a second conspiracy between Yancey and somethird party to kill Williams and there was no evidence linking Clark to this second conspiracy. (AOB 489-491.) Clark relies on the jury verdict in Yancey’s separate murdertrial, wherein the jury did not find an allegation that Yancey personally used a firearm in Williams’s murder to be true (11 CT 4115-4117) to support his contention that there were two separate and distinct conspiracies to murder 184 Williams. Evidentiary support for Clark’s contention is conspicuously absent from the record on appeal. Further, Clark provides no authority, either in law or logic, to support the proposition that the verdict in Yancey’s separate tal, rendered by anotherjury after the conclusion ofthe guilt phase ofClark’s mal, is of any import in this case. Indeed,it is difficult to comprehend how the verdict in Yancey’s trial could have effected the jury instructions given in Clark’s trial, which preceded the Yancey verdict by more than six months.” Asthis Court has noted, “* ‘(T]n cases where there are multiple defendants, or in multiple cases arising out ofthe same offense, the mere fact standing alonethat verdicts are, or appear to be, inconsistent, does not give rise to collateral estoppel. Specific issues may be decided differently in different cases. [Citation.] Likewise, a judgment acquitting one defendant does not generally bar subsequentcriminalliability of a codefendant.’ ” (People v. Lawley (2002) 27 Cal.4th 102, 163-164.) Clark’s jury wasfree to, and,as the special circumstancesfindings show, did, conclude from the evidencepresented that Yancey waspersonally armed with a firearm during the commission ofWilliams’s murderin the Continental Receivinglot, thereby achieving the object of the conspiracy between Yancey and Clark, without regard to the verdict in Yancey’s case. (8 CT 2784-2785.) Clark’s claim is without merit. 46. The jury in the guilt phase of Clark’s trial rendered its verdict on May 21, 1996. (8 CT 2915-2917.) The verdict in Yancey’s case was rendered on December12, 1996. (11 CT 4123-4128.) 185 XLVIII. THE TRIAL COURT WAS UNDERNO OBLIGATION TO INSTRUCT THE JURY ACCORDING TO CALJIC NOS. 17.10 AND 17.49 BECAUSE THERE WAS NO DEADLOCK OR CONFUSION AS TO THE ORDER OF DELIBERATIONS ON COUNT 7 Clark contendsthat the trial court was under a sua sponte obligation to instruct the jury according to CALJIC Nos. 17.10 and 17.49 that it could consider the chargesoffirst and second degree murderin Count 7 in any order it wished, but could not return a verdict on lesser offenses unless it has unanimously agreed on a disposition of the greater offense. (AOB 494-501.) To the contrary, the trial court had discretion to withhold such aninstruction unless and until the jury deadlocked on this issue and, as no deadlock occurred and there is no evidence the jury was confused as to the order of their deliberations on Count7, the instruction was unnecessary. Accordingly, there wasnoerror. Thetrial court properly instructed the jury according to CALJIC Nos. 8.30, 8.70, and 8.71 on second degree murderas a lesser included offense of first degree murder as charged in Count 7, relating to the murder of Ardell Williams. (7 CT 2740-2743; People v. Blair (2005) 36 Cal.4th 686, 745 [second degree murderis a lesser included offense offirst degree murder].) Thetrial court also indicated its willingness to instruct the jury according to CALJIC No. 17.10 (Conviction of Lesser Included or Lesser Related Offense-Implied Acquittal-First) believing it could “perhaps”be “helpful” to the jury, but stated that “if nobodythinks it's necessary . . . I’m nottiedto it.” Both the prosecutor and Clark’s counsel indicated that they did not believe the ' instruction was applicable. (63 RT 10653-10654.) Thetrial court was correct in not instructing the jury according to CALJIC No. 17.10 and its companion instruction, CALJIC No. 17.49, under the circumstances. 186 CALJIC No. 17.10 pertinently provides: Ifyou are not satisfied beyond a reasonable doubtthat the defendant is guilty ofthe crime charged, you may nevertheless convict [him] [her] of anylesser crime, ifyou are convinced beyonda reasonable doubtthat the defendantis guilty of the lesser crime. [The crime of [as charged in Count ] is lesser to that of charged in Count .] Thus, you are to determine whether[a] [the] defendant{[s] [is] [are] guilty or not guilty of the crime[s] charged [in Count(s] | or of any lesser crime [s]. In doing so, you have discretion to choose the order in which you evaluate each crime and consider the evidence pertaining to it. You may find it productive to consider and reach tentative conclusion onall charges and lesser crimes before reaching anyfinal verdict[s]. However, the court cannot accept a guilty verdict on a lesser crime unless you have unanimously found the defendantnot guilty ofthe [charged] [greater] crime. CALJIC No. 17.49 similarly provides: [In this case, the defendant has been charged with (burglary, robbery, kidnapping,etc.) , [a] [all] felon[y][ies]. The foregoing charged crime[s] include[s] the lesser offense[s] of (theft, misdemeanor false imprisonment,etc.) .] You will be given [ | verdict forms encompassing both the charged crime[s] and the lesser included offense[s]. Since the lesser offense[s] [is] [are] included in the greater, you are instructed that if you find the defendant guilty of the greater offense[s], you should not complete the verdict[s] on the corresponding lesser offense[s] and [that] [those] verdict[s] should be returned to the Court unsigned by the Foreperson. Ifyou find the defendantnot guilty ofthe felon[y][ies] charged, you then need to complete the verdict[s] on the lesser included offense[s] by determining whether the defendantis guilty or not guilty of the lesser included crime[s], and the corresponding verdict[s] should be completed and returned to the Court signed by the Foreperson. 187 These instructions are based on this Court’s holdings in Stone v. Superior Court (1982) 31 Cal.3d 503, and People v. Kurtzman (1988) 46 Cal.3d 322. (See Use Notes to CALJIC Nos. 17.10, 17.49.) This Court explainedthat, while the jury may consider chargesin any orderit wishesto facilitate ultimate agreement on a conviction or acquittal, it may not return a verdict on lesser offenses unless it has unanimously agreed on a disposition of the greater. (People v. Kurtzman, supra, 46 Cal.3d at p. 332.) Trial courts have a sua sponte duty to instruct the jury “‘on general principles oflaw that are closely and openly connected with the facts presented at trial.’ ”” (People v. Avila, supra, 38 Cal.Ath at p. 567.) However, under Stone and Kurtzman, while a trial court may instruct the jury according to CALJIC Nos. 17.10 and 17.49 at the start of deliberations, the trial court has the discretion not to instruct a jury according to CALJIC Nos. 17.10 and 17.49 unless and until ajury deadlock arises. (People v. Fields (1996) 13 Cal.4th 289, 309.) The court in this case followed the latter procedure and,as there is no indication in the record that the jury deadlocked as to Count7 orthat the jury was confused asto the order of their deliberations on Count7, the trial court wasundernoobligation to instruct the jury according to CALJIC Nos. 17.10 and 17.49. (/bid.) There wasnoerror. XLIX. SUBSTANTIAL EVIDENCE SUPPORTS THE JURY’S FINDINGS THAT CLARK WAS A MAJOR PARTICIPANT AND ACTED WITH RECKLESS INDIFFERENCE TO HUMANLIFE IN THE COMP USA CRIMES AND THAT HE HAD AN INTENT TO KILL ARDELL WILLIAMS Clark contends that there is insufficient evidence that he was a major participant and acted with reckless indifference to humanlife in the Comp USA 188 crimes or that he had the intent to kill Ardell Williams to support the special circumstance allegations. (AOB 502-513.) However,there is ample evidence in the record to support the jury’s findings as to the special circumstance allegations. When determining whether substantial evidence supports a special circumstance finding, a reviewing court considers the evidence “‘in the light most favorable to the prosecution” to determine whether“any rationaltrier of fact could have found the essential elements of the allegation beyond a reasonable doubt.” (People v. Dickey (2005) 35 Cal.4th 884, 903.) The Eighth Amendmentprohibits the imposition ofthe death penalty in felony murder cases where the defendant was not the actual killer, did not participate in the killing, and lacked any culpable mental state. (Tison v. Arizona (1987) 481 U.S. 137, 147-156 [107 S.Ct. 1676, 95 L.Ed.2d 127], citing Edmundv. Florida (1982) 458 U.S. 782 [102 S.Ct. 3368, 73 L.Ed.2d 1140].) Imposition ofthe death penalty in a felony murdercase does not offend Eighth Amendment principles where the defendant is a major participant in the underlying felony and acted with a reckless indifference to humanlife. (Tison v. Arizona, supra, 481 U.S.at p. 158.) Penal Codesection 190.2, subdivision (d), provides for imposition ofthe death penalty for, every person, not the actual killer, who, with reckless indifference to humanlife and as a majorparticipant, aids, abets, counsels, commands, induces, solicits, requests or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons. This section conformsto the requirements ofthe Eighth Amendmentas set forth in Edmundand Tison. (Tapia v. Superior Court, supra, 53 Cal.3d 282, 298, fn. 16.) Both the guilt phase and penalty phaseretrial jurors were instructed according to CALJIC No.8.80.1 that, with respect to the felony murderspecial 189 circumstances, Clark must have been a major participant in the underlying felonies and acted with reckless indifference to humanlife, defined as being when “‘the defendant knowsor is aware that his acts involve a grave risk of death to an innocent human being.” (7 CT 2747; 13 CT 4854.) There is ample evidencethat, although notthe actual killer ofKathy Lee, Clark was both a majorparticipantin the attempted robbery and burglary at the Comp USAstore and acted with reckless indifference to humanlife to support the jury's true findings as to the felony murder special circumstances. Although neither this Court nor the United States Supreme Court has specifically defined the term “majorparticipant,” the Court ofAppeal has held that, in the context of Penal Code section 190.2, subdivision (d), “the phrase ‘majorparticipant’ is commonly understood andis not used in a technical sense peculiar to the law.” (People v. Proby (1998) 60 Cal.App.4th 922, 933.) As the Court of Appeal noted, “[t]he common meaning of ‘major’ includes ‘notable or conspicuous in effect or scope’ and ‘one of the larger or more important membersor units of a kind or group.’” (/d. at pp. 933-934.) Clark mischaracterizes his role as “acting as the ‘getaway driver.’” (AOB 508.) The evidence clearly shows that Clark’s involvement extended well beyondthat of a “getaway driver.” Moreover, even if Clark was merely a “getaway driver,” it would be a sufficient basis for concluding he was a major participant because that role would be integral to the crime. A “major participant” is someone whois an active participant in planningor carrying out the crime- someone whointentionally assumes some responsibility for the actual successful commission of the crime. Principals and aiders and abettors whose conductis integral to the crime, e.g., a lookout or getaway driver, are " major participants. (People v. Hearn (2002) 95 Cal.App.4th 1163, 1176.) Clark was unquestionably a majorparticipant in the attempted robbery and burglary of the Comp USAstore. Clark was the mastermind and driving force behind the crimes. Clark cased the Comp USAstore, studying the 190 numbers and movements ofemployees andtheir activities around closing time. (50 RT 8751-8758.) He helped Jeanette Mooreto obtain false driver’s license with whichto rent the U-Haul truck that was prepositioned near the Comp USA store for use in the crimes. (43 RT 7645-7646, 7649-7654, 7667-7677, 7679-7683, 7714, 7720-7721; 45 RT 7869-7897; 49 RT 8630-8632; 50 RT 8758-8764.) Clark also assembled a group of individuals to assist in removing the merchandise from the Comp USAstore at the Del Taco restaurant nearby, including his brother and Matthew Weaver. Clark was driving his BMW toward the north side of the Comp USAstore whenthe arrival of the police forced him to flee. (45 RT 8007-8012, 8023-8029; 46 RT 8044-8056.) Clark’s connection to NokkuwaErvin, whofired the shot that killed Kathy Lee, was demonstrated by the fact that Ervin sought to evade the police by jumping in Clark’s car. (45 RT 7931-7933.) Although Clark did notfire the fatal shot that took the life ofKathy Lee, he wasnot only a major, but a critical, participant in the underlying attempted robbery and burglary, setting in motion the events that led to Lee’s murder. The crimesliterally could not have occurred without Clark’sparticipation and this is sufficient to support the jury’s finding that he was a major participantin the underlying offenses. (See People v. Marshall, supra, 50 Cal.3d at p. 938 [“ringleader’of burglary/robbery properly found to be major participant, even thoughnot actual killer].) Similarly, there was substantial evidence to support the jury’s finding that Clark acted with reckless indifference to human life. Under Tison, “the culpable mental state of ‘reckless indifference to life’ is one in which the - defendant ‘knowingly engag[es] in criminal activities known to carry a grave risk of death.” (People v. Estrada, supra, 11 Cal.4th at p. 577; see also CALJIC No.8.80.1.) Based on Clark’s meticulous planning ofevery aspect of the Comp USArobbery, the jury could only conclude that he was subjectively 191 aware ofhow Ervin wasto subduethe store employeesin order to gain access to the merchandise inside, namely with the gun and handcuffs. It could not have escaped Clark’s notice that such a plan would create a grave risk that someone would be harmed during the robbery’s execution, whether intentionally or by accident or misadventure. “Participants in violent felonies like armed robberies can frequently ‘anticipat[e] that lethal force . . . might be used . . . in accomplishing the underlying felony. People v. Bland (1995) 10 Cal.4th 991, 996 [potential for death or injury results (Tison v. Arizona, supra, 481 U.S. at pp. 150-151; see also from the very presence of a firearm during commission of crime].) The very real possibility that someone would be harmed during the course ofthe robbery was simplya calculated risk that Clark was prepared to take in conceiving and executing the planned robbery. Clark also contends that there was insufficient evidence that he intended to kill Williams. (AOB 509-511.) The jury found Clark guilty of first degree premeditated murderin the killing ofWilliams. (8 CT 2778.) The mentalstate required to support a finding offirst degree premeditated murderis “‘a deliberate and premeditated intent to kill with malice aforethought.” (People v. Hart (1999) 20 Cal.4th 546, 608.) The evidence amply supports the jury's finding that Clark harbored an intent to kill Ardell Williams. In arguingthat there is insufficient evidence that Clark hadthe intentto kill Williams, he ignores his own statements to Williams’s sister that ifWilliams testified against him it would “just kinda like wipe me out” andthat she “could cometo court and get complete amnesia.” (14 CT 5361, 5387.) Clark similarly told Alonzo Garrett that Williams “could put me away.” (56 RT 9715.) Healso ignoresthe extensive evidence implicating Yancey in Williams’s murder and demonstrating a conspiracy between the two to commit the murder. Yanceyvisited Clark at the Orange County Jail shortly after Williams’s murder. (60 RT 10155.) Yancey’s phone records for the period of January through 192 March 1994indicated numerouscalls to Clark’s attorney, his investigator, a pay phonein the Orange County Jail accessible to Clark, and to Ardell Williams’s home. (60 RT 10156-10157.) Based onall of this evidence, the jury could reasonably conclude that Clark intended to murder Williams to prevent her from testifying against him in the Comp USAcase. L. THE TRIAL COURT PROPERLY DENIED CLARK’S PENAL CODE SECTION 987.9 APPLICATION FOR FUNDS TO HIRE A POLYGRAPH EXPERT WHO WOULD ADMINISTERA POLYGRAPH EXAMINATION TO CLARK BECAUSE THE EXPERT’S TESTIMONY WASINADMISSIBLE UNDERBOTH EVIDENCE CODE SECTION 351.1 AND THE HEARSAY RULE AND THEREFORE NOT REASONABLY NECESSARY TO CLARK’S DEFENSE Clark contendsthat the trial court’s denial ofan application for funds to obtain a defense polygraph expert who would administer a polygraph examination to Clark, violated Penal Code section 987.9 and his federal constitutional rights to due process, effective assistance of counsel, and a reliable penalty determination. Clark claims that he made the necessary showingofscientific reliability to support introduction ofpolygraphresults at the penalty phaseretrial to support his arguments of lingering doubt and that Evidence Code section 351.1, providing for the exclusion ofpolygraphresults, unconstitutionally interfered with his federal constitutional right to present a defense. (AOB 514-533.) Thetrial court properly denied the application for funds becausethe results of a polygraph exam would be inadmissibleat trial _ both under Evidence Code section 351.1 and the statutory prohibition against hearsay. 193 Penal Codesection 987.9, subdivision (a) provides: In the trial ofa capital case or a case under subdivision (a) ofSection 190.05 the indigent defendant, through the defendant’s counsel, may request the court for funds for the specific payment of investigators, experts, and others for the preparation or presentation of the defense. The application for funds shall be by affidavit and shall specify that the funds are reasonably necessary for the preparationor presentation ofthe defense. The fact that an application has been made shall be confidential and the contents of the application shall be confidential. Uponreceipt of an application, a judge of the court, other than thetrial judge presiding over the case in question, shall mle on the reasonablenessofthe request and shall disburse an appropriate amount ofmoneyto the defendant's attorney. The ruling on the reasonableness of the request shall be made at an in camera hearing. In making the ruling, the court shall be guided by the need to provide a complete and full defense for the defendant. Penal Code section 987.9 is intended to protect the federal and state constitutional rights of an indigent defendant to the effective assistance of counsel, which “includes the right to reasonably necessary defense services.” (People v. Blair, supra, 36 Cal.4th at pp. 732-733, quoting Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 319-320.) It is the defendant’s burden to demonstrate the need for the services being requested. (People v. Guerra, supra, 37 Cal.4th at p.1085.) The right to ancillary services is only implicated “when a defendant demonstrates such funds are ‘reasonably necessary’ for his or her defense by reference to the generallines of inquiry that he or she wishes to pursue.” (People v. Blair, supra, 36 Cal.4th at p. 733.) “Section 987.9 commits to the sound discretion of the trial court the determination of the reasonableness of an application for funds for ancillary services.”” (People v. Box (2000) 23 Cal.4th 1153, 1184, quoting People v. _ Mattson (1990) 50 Cal.3d 826, 847.) A trial court’s denial ofan application for funds for ancillary services will only be disturbed on appeal upon a showing that the trial court abusedits discretion. (People v. Alvarez, supra, 14 Cal.4th at p. 234.) 194 Thetrial court did not abuseits discretion in denying Clark’s application for funds to obtain the services of a polygraph expert who would administer a polygraph examination to Clark and then testify regarding the results of that examination at the penalty phase retrial to support Clark’s arguments of lingering doubt. A grant of ancillary funds can be denied when the evidence sought to be obtained by the funds will not be admitted into evidence by the trial court. (See People v. Daniels (1991) 52 Cal.3d 815, 877.) Clark’s application for funds was properly denied because a polygraph expert was not reasonably necessary to Clark’s defense, since the results of a polygraph examination of Clark as well as the opinion of the examiner would have been inadmissible under Evidence Codesection 351.1. Accordingly, Clark’s claim hinges on his challengeto the constitutionality ofEvidence Codesection 351.1. Aswill be demonstrated below,that claim must fail. Evidence Code section 351.1, subdivision (a) provides: Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence in any criminal proceeding, includingpretrial and post conviction motionsandhearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court, unless all parties stipulate to the admission of such results. Pursuant to Evidence Code section 351.1, polygraph evidence is categorically inadmissible in criminal cases absent the stipulation ofthe parties. (People v. Wilkinson (2004) 33 Cal.4th 821, 845-846.) The exclusion of polygraph evidence in Evidence Codesection 351.1 is applicable to the penalty phaseofa capitaltrial. (People v. Koontz, supra, 27 Cal.4th at p. 1090.) Clark nonetheless contends that the categorical exclusion of polygraph evidence violated his constitutional right to present a defense. (AOB 522-533.) Asapreliminary matter, Clark cannot challenge the constitutionality of Evidence Codesection 351.1 and its prohibition on the admission ofpolygraph 195 evidence because,as thetrial court noted in its order denying Clark’s request for funds (11 CT 4241), he failed to make an adequate offer of proof that polygraph evidence is generally accepted in the scientific community as required under People v. Kelly (1976) 17 Cal.3d 24, and Frye v. United States (D.C. Cir. 1923) 293 F. 1013 (hereinafter Kelly/Frye). While Clark’s offer of proofindicated acceptance of the polygraph’sreliability in the community of polygraph examiners, there was no indication of acceptance in the larger scientific community. (11 CT 4242-4250; 13 CT 4312-4353.) Such an offer ofproofis a prerequisite to any constitutional attack on Evidence Codesection 351.1. (See People v. Wilkinson, supra, 33 Cal.4th at p. 847.) However, even assuming Clark’s offer ofproof were adequate to meet the Kelly/Frye standard, his challenge to Evidence Code section 351.1 would not succeed. As this Court noted, we never have suggested that evidencethatsatisfies the Kelly/Frye test must, as a constitutional matter, be admitted in evidence notwithstanding the statutory provision barring such admission. (People v. Wilkinson, supra, 33 Cal.4th at p. 848.) As this Court concluded in rejecting an identical challenge to the constitutionality of Evidence Code section 351.1, “a ‘per se rule excluding polygraph evidence is a “rational and proportional means of advancing the legitimate interest in barring unreliable evidence.” [Citation.’” (People v. Wilkinson, supra, 33 Cal.4th at pp. 849-850.) In doing so, this Court notedthat “the scientific community remains extremely polarized aboutthereliability of polygraph techniques.’ [Citation.]” (/d. at p. 850.) The penalty phase of Clark’s trial wherein he sought to introduce polygraph evidence took place in late 1997. The defendant in Wilkinson committed the charged offenses in early 1999,i.e. after Clark’s trial. (/d. at p. 828.) This Court observed that the defendant in Wilkinson, cannot persuasively contend that between the time ofthe [United States Supreme Court’s] Scheffer decision and defendant’s trial, a span oftwo 196 and one-half years, the deep division in the scientific and legal communities regarding the reliability of polygraph evidence, as recognized by Scheffer, had given way to a general acceptance that would render the categorical exclusion of polygraph evidence "so arbitrary or disproportionate that it is unconstitutional.” (People v. Wilkinson, supra, 33 Cal.Ath at p. 850.) Similarly, Clark cannot reasonably contendthat the state of acceptance ofpolygraph evidencein the scientific community was at a more advancedstate at the time of his penalty phaseretrial in late 1997 than in 1999 when the defendant in Wilkinson failed to make the same showing.Evidence Code section 351.1's categorical exclusion of polygraph evidenceis constitutional. Clark’s claim that Evidence Code section 351.1 deprived him ofhis constitutional right to present a defense, relying on Rock v. Arkansas (1987) 483 U.S. 44 [107 S.Ct. 2704, 97 L.Ed.2d 37] and Chambers v. Mississippi (1973) 410 U.S. 284 [93 S.Ct. 1038, 35 L.Ed.2d 297] (AOB 522-533), was similarly rejected by this Court in Wilkinson. As this Court noted, Scheffer distinguished Rock and Chambers, finding that “unlike the evidentiary rules at issue in those cases, [the rule excluding polygraph evidence] does not implicate any significant interest of the accused.” [Citation.] (People v. Wilkinson, supra, 33 Cal.Ath at p. 851.) There was an additional problem with Clark’s proposed use ofpolygraph evidencethat, while not remarked on bythetrial court, would have precluded admissibility ofthe evidence independent ofEvidence Code section 351.1 and 47. Although Wilkinson does not makeclear on what date the defendant offered evidence of the acceptance of polygraph evidence in the scientific community, the charged offenses were committed in February of 1999 and the evidence could not have been offered prior to that date. Further, this Court noted a two-and-a-half-year span of time between the decision of the United States Supreme Court in United States v. Scheffer (1998) 523 U.S. 303 [118 S.Ct. 1261, 140 L.Ed.2d 413], indicating the offer ofproof in Wilkinson could have been madeas late as 2000. (People v. Wilkinson, supra, 33 Cal.Ath at p. 850.) 197 therefore rendered Clark’s application for ancillary services unnecessary. Clark has never explained how evidenceofthe truthfulness of his statements to the examiner would be admissible. Evidence Code section 1200, subdivision (a) defines hearsay as an out-of-court statement offered to prove the truth ofthe matter asserted. (People v. Crew, supra, 31 Cal.4th at p. 841.) Hearsay statements are inadmissible unless an exception to the hearsay rule applies. (Evid. Code, § 1200, subd. (b); People v. Hardy, supra, 2 Cal.4th at p. 139.) Any statements made by Clark to the examiner would be inadmissible hearsay and not subject to any hearsay exception. Accordingly, the polygraph examiner would be unable to testify to the contents of any polygraph examination of Clark because the statements of Clark made during the polygraph examination would be offered for their truth, i.e. that he was not involved in the crimes. Therefore, the examiner’s opinion that Clark was truthful during the exam would be wholly lacking in both foundation and relevance becausethe hearsay rule would prohibit the examinerfrom testifying to what Clark said during the exam. | Indeed, in both Sheffer and Wilkinson, the defendants testifiedat trial as to their innocence and then soughtto introduce polygraph evidenceto bolster their credibility. (/d. at pp. 851-852.) Presumably, had the polygraph evidence been admissible under Evidence Codesection 351.1, the defendants’ statements would havealso been admissible as prior consistent statements under Evidence Code section 1236. However, as Clark did not testify and there is no suggestion in the recordthat the prohibition against polygraph evidence was the basis for his not testifying or that he would havetestified had polygraph evidence been otherwise ruled admissible, the polygraph evidence would have been independently inadmissible as hearsay even independent of Evidence Codesection 351.1. This analysis remains the same even though Clark’s proffer was for the purposeofpresenting evidenceoflingering doubtin the penalty phase. (AOB 198 514-515.) As previously noted, Evidence Code section 351.1 foreclosing admissibility of polygraph evidence applies to the penalty phase ofa capital trial. (People v. Koontz, supra, 27 Cal.4th at p. 1090.) Moreover, evidence that is inadmissible to raise a reasonable doubtin the guilt phase is inadmissible to raise lingering doubtat the penalty phase. (People v. Stitely, supra, 35 Cal.4th at p. 556.) Further, evidencethat is intended to create a reasonable doubtas to a defendant’s guilt at the penalty phase has no relevance to the circumstances of the offense or the defendant’s character and record. While a defendant may argue lingering doubt as a reason not to impose the death penalty, he may not retry the guilt phase in an effort to create lingering doubt. (Jn re Gay (1998) 19 Cal.4th 771, 814.) In other words, Clark’s desire to pursue a lie detector test had more impediments to admissibility than Evidence Code section 351.1 and Kelly/Frye. Accordingly, because Clark’s application for ancillary services was for an expert who would provide inadmissible evidence, the trial court did not abuseits discretion in finding that the Penal Code section 987.9 funds were not reasonably necessary to Clark’s defense. (See People v. Alvarez, supra, 14 Cal.4th at p. 234.) LI. THE TRIAL COURT PROPERLY DENIED CLARK’S MOTION TO COMPEL THE PROSECUTION TO STIPULATE TO AN INTIMATE RELATIONSHIP BETWEEN CLARK AND YANCEY BECAUSE A STIPULATION WOULD HAVE DEPRIVED THE PROSECUTION’S CASE OF ITS PERSUASIVENESS AND FORCEFULNESS Clark contendsthat it was improperfor the trial court not to require the prosecution to accept Clark’s proposed stipulation to a “close personal relationship” between Clark and Yancey at the penalty phase retrial and 199 allowing the prosecution to introduce sexually explicit letters between Yancey and Clark to establish the nature and character of their relationship. (AOB 534-538.) However, the trial court properly denied the motion, recognizing that offeringa stipulation in place ofthe letters would deprive the prosecution’s case of its full impact and forcefulness. Asdiscussed in Argument XXVII,ante, whichis incorporated herein by reference, [t]he generalrule is that the prosecution in a criminal case cannot be compelled to accept a stipulation if the effect would be to deprive the state's case of its persuasiveness and forcefulness. [Citations.] (People v. Edelbacher, supra, 47 Cal.3d at p. 1007; accord, People v. Sakarias, supra, 22 Cal.4th at p. 629; People v. Scheid, supra, 16 Cal.4th at pp. 16-17; People v. Arias, supra, 13 Cal.4th at p. 131; People v. Garceau, supra, 6 Cal.4th at p. 182, abrogated on other grounds in People v. Yeoman, supra, 31 Cal.4th at pp. 117-118.) This includes circumstances where a defendant’s offer to stipulate is ““ambiguousin form orlimited in scope. . .’ the evidenceretains someprobative value and is admissible. [Citation.]” (People v. Hall, supra, 28 Cal.3d at p. 153; see also, e.g., People v. Bonin, supra, 47 Cal.3d at p. 848 [offer to stipulate to only part of testimony properly refused]; Old Chief v. United States, supra, 519 U.S.at pp. 186-187 [“a criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the Government choosesto presentit.”’].) At the penalty phase retrial, Clark sought “an order compelling the prosecution to accept [Clark’s stipulation] that [Clark] and Antoinette Yancey had a close personal relationship” and to excludeall correspondence between Clark and Yanceyas irrelevant. (12 CT 4475-4487.) Thetrial court denied the motion, explaining, I did peruse the letters, actually read them and agree with [the prosecutor] on the letters issue. I mean, [Clark] is inside; he is in jail and heis getting somebody to do an awful deed. 200 Andstipulationsis [sic] just not going to do what the People think they have to prove. So I have to agree with [the prosecutor] on that. (73 RT 12428.) The trial court correctly concluded that offering a stipulation to an intimate relationship inlieu ofthe letters between Clark and Yancey would rob the prosecution’s case ofits forcefulness. As discussed in Argument XXVII, ante, the letters showed much more than a mere close or intimate relationship between the two. The prosecution’s theory ofthe case was that Clark, who was incarcerated at the Orange County Jail, conspired with, and somehow persuaded Yanceyto arrange Ardell Williams’s murder. Yancey’s participation in Williams’s murder could not easily be explained by merely a close or intimate relationship with Clark, which Clark claims he was willingto stipulate to. It would have been improper to compel the prosecution to accept a stipulation to a close or intimate relationship between Clark and Yanceyasit would have deprived the prosecution’s case and theory of motive ofits “persuasiveness and forcefulness.” (See People v. Edelbacher, supra, 47 Cal.3d at p. 1007.) LI. SUBSTANTIAL EVIDENCE SUPPORTS THE JURY’S FINDINGS THAT CLARK WAS A MAJOR PARTICIPANT IN THE COMP USA CRIMES AND ACTED WITH RECKLESS INDIFFERENCE TO HUMAN LIFE Clark contends there was insufficient evidence that he was a major participant in the underlying burglary and attempted robbery ofthe Comp USA store and acted with reckless indifference to human life to support the felony murder and multiple murder special circumstances.” As discussed in 48. The felony murderspecial circumstance (Pen. Code, § 190.2, subd. (a)(3)) does not require that the defendant intend to kill each victim, so long as he intendedto kill a victim. (People v. Dennis (1998) 17 Cal.4th 468, 516.) It 201 ArgumentIL, ante, whichis incorporated herein by reference, there was ample evidence supporting thejury’s findings that Clark was a major participant in the | underlying burglary and attempted robbery of the Comp USAstore and acted with reckless indifference to humanlife to support the felony murder special circumstances. Clark’s claim is without merit. LIT. THERE IS SUBSTANTIAL EVIDENCE THAT YANCEY UTILIZED THE JANET JACKSON RUSE TO CONCEAL HER PURPOSE IN LURING WILLIAMS TO THE CONTINENTAL RECEIVING LOT AND, WHILE WILLIAMS FILLED OUT THE JOB APPLICATION FORMS, ENGAGED IN A PERIOD OF WATCHFUL WAITINGTO MANEUVERINTO A POSITION BEHIND WILLIAMS TO DELIVER THE FATAL SHOT AT AN OPPORTUNE MOMENT, THEREBY SUPPORTING THE JURY’S FINDING OF THE LYING-IN-WAIT SPECIAL CIRCUMSTANCE TO BE TRUE Clark contends that there is insufficient evidence to support the true finding as to the lying-in-wait special circumstance because there was no evidence that Yancey engaged in a substantial period of watchful waiting before murdering Williams. (AOB 545-550.) However, the evidence amply supports the inference that Yancey used the Janet Jackson ruse to conceal her purpose in luring Williams to the Continental Receiving lot for a bogus job interview and, while Williams filled outjob application forms, Yancey engaged in a period ofwatchful waiting during which she maneuvered behind Williams to deliver the fatal shot at an opportune moment. is sufficient that, as discussed in Argument IL, ante, there was substantial evidence that Clark had an intent to kill Ardell Williams and acted with reckless indifference to humanlife in the murder of Kathy Lee in order to support the _multiple murderspecial circumstance. (See People v. Dennis, supra, at p. 516.) 202 When determining whether substantial evidence supports a special circumstance finding, a reviewing court considers the evidence“in the light most favorable to the prosecution” to determine whether “anyrationaltrier of fact could have found the essential elements of the allegation beyond a reasonable doubt.” (People v. Dickey, supra, 35 Cal.4th at p. 903.) The lying-in-wait special circumstance requires proof of “an intentional murder, committed under circumstances which include(1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportunetimeto act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage.” [Citations.| (People v. Jurado (2006) 38 Cal.4th 72, 119.) There was ample evidence presentedat trial from which the jury could reasonably find the lying-in-wait special circumstanceto be true. As discussed previously, there was overwhelming circumstantial evidence that Yancey and Clark plotted Williams’s murder while Clark was an inmate in the Orange County Jail in order to prevent Williams from testifying against Clark in the Comp USAcase. Yancey engagedin a lengthy and complicated deception in orderto lure Williams to her death,first by posing as a flower delivery person to gain access to the Williams’s home and then by telephoning Williams’s mother and claiming to be Janet Jackson, a friend of Williams’s sister Liz Fontenot. Yancey used the Janet Jackson ruse to ingratiate herself with Williams’s mother, pretending that she had a daughter who hadcancertoelicit sympathy. (54 RT 9440-9470; 55 RT 9583-9594.) It was only after gaining Williams’s mother’s trust that Yancey told her about the fictitious job interview at Continental Receiving. (53 RT 9314-9321; 54 RT 9449-9470.) It was during the job interview at Continental Receiving that Williams was shot in the back of the head. (54 RT 9471-9472; 55 RT 9548-9549; 56 RT 9752-9754.) 203 Yancey’s Janet Jacksonruse and bogusjob interview were designed to conceal the true purpose of luring Williams to Continental Receiving: her murder. The jury could infer from the recovery ofthe partially completed job application forms near Williams’s body (54 RT 9521-9526) that some substantial period of time elapsed while Williamsfilled out the forms, during which time Yancey waited for an opportune momentto strike. Finally, the location of the fatal shot, behind Williams’s left ear, indicated that Yancey utilized the distraction created by the job application formsto position herself behind Williamsandfire the fatal shot without warning, depriving Williams of the opportunity to either escape or defend herself. Substantial evidence supported the true finding as to the lying-in-wait special circumstance. (See People v. Jurado, supra, 38 Cal.4th at p. 119.) Clark’s reliance on Richards v. Superior Court (1983) 146 Cal.App.3d 306 is misplaced. (AOB 546-547.) In Richards, the defendants lured the victim into a garage and murdered him without “any period of watchful waiting.” (People v. Morales (1989) 48 Cal.3d 527, 556, originalitalics, citing Richards v. Superior Court, supra, at pp. 314-316.) Moreover, this Court rejected the holding in Richards insofar that the lying-in-wait special circumstance required “actual physical concealment.” (People v. Morales, supra, 48 Cal.3d at p. 557.) Unlike in Richards, there is ample evidence of a period of watchful waiting in this case. Again, the discovery of the partially completed job application forms near Williams’s body permitted the inference that she spent someperiodoftimeat the Continental Receivinglotfilling out the forms while Yancey positioned herself behind Williams to deliver the fatal shot. This factual scenario is analogousto those in Jurado, Combs, and Morales, where the defendants lured their victimsinto the front seat of a car and, after driving to a convenient location, murdered the victims from the back seat. (See People 204 v. Jurado, supra, 38 Cal.4th at p. 120; People v. Combs (2004) 34 Cal.4th 821, 853; People v. Morales, supra, 48 Cal.3d at p. 554.) The element of concealment of purpose is met by showing the “true intent and purpose were concealedby[] actions or conduct.” (People v. Moon, supra, 37 Cal.4th at p. 22.) There is no requirement that Yancey have been literally concealed from view before attacking Williams. (/bid.; People v. Hillhouse (2002) 27 Cal.4th 469, 500.) It is the creation of a situation that enabled Yancey to take Williams unaware even though she could see Yancey. (People v. Morales, supra, 48 Cal.3d at p. 555.) The evidence fully supports the reasonable inference that there was a substantial period of watching and waiting by Yancey while Williams filled out a job application. Substantial evidence supports the jury’s finding. LIV. ARDELL WILLIAMS DID NOT HAVE TO PERSONALLY WITNESS THE COMP USA ROBBERY AND MURDER OF KATHY LEE IN ORDER TO BE A WITNESS WITHIN THE MEANING OF PENAL CODE SECTION 190.2, SUBDIVISION(A)(10) Clark contendsthat the murder ofa witness special circumstance under Penal Codesection 190.2, subdivision (a)(10) should have been dismissed because Ardell Williams was not a witness to the Comp USArobbery and murder. (AOB 551-555.) However, this Court has consistently rejected the identical claim and should do so here. Penal Codesection 190.2, subdivision (a)(10) provides for a sentence of death orlife in prison without parole for a murderer where [t]he victim was a witness to a crime whowas intentionally killed for the purposeofpreventing his or her testimony in any criminal or juvenile proceeding,and the killing was not committed during the commission or attempted commission,ofthe crime to which heor she was a witness; or the victim was a witness to a crime and wasintentionally killed in 205 retaliation for his or her testimony in any criminal or juvenile proceeding. As used inthis paragraph,“juvenile proceeding” means a proceeding brought pursuant to Section 602 or 707 of the Welfare and Institutions Code. As this Court has observed, nothing in the language of [Penal Code section 190.2, subdivision (a)(10)] or in our decisions applying this special circumstance supports the suggestion that the special circumstance is confined to the killing of an “eyewitness,” as opposed to any other witness who mighttestify in a criminal proceeding. (People v. Jones, supra, 13 Cal.4th at p. 550; see also People v. San Nicolas (2004) 34 Cal.4th 614, 656; People v. Jenkins, supra, 22 Cal.4th at pp. 931-933, 1018 [investigating officer murdered to prevent him from testifying in defendant’s robbery trial].) Clark fails to address the many prior decisions of this Court rejecting his contention. This Court has previously rejected the identical argument and Clark provides nobasis for departing from the repeated rejection of his contention. LV. PENAL CODE SECTION 654 DID NOT BAR THE JURY FROM CONSIDERING BOTH THE ROBBERY-MURDER AND BURGLARY-MURDER SPECIAL CIRCUMSTANCES Clark contends that Penal Code section 654 prohibited the jury from considering both the robbery-murder and burglary-murder special circumstances since both related to the same course of conduct at the Comp USAstore. (AOB 556-559.) However,this Court has consistently rejected the identical claim and should do so here. Penal Codesection 654 pertinently provides: (a) An act or omission that is punishable in different ways by different provisions of law shall be punished underthe provision that 206 provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. However, this Court has repeatedly held that section 654 does not bar the jury in a capital case from considering both robbery-murder and burglary-murder special circumstances, even where the multiple special circumstances were part of the same course of criminal conduct. (People v. Sanders, supra, 51 Cal.3d at pp. 528-529; People v. Bean (1988) 46 Cal.3d 919, 954-955; People v. Melton, supra, 44 Cal.3d at pp. 765-769.) As this Court explained, “any robbery and burglary committed by defendantin the course of his homicidal conduct could properly be considered an independent aggravating factor. Each involved violation of[a] distinct interest that society seeks to protect, and a defendant who commits both offenses in the course of a murder may be deemed more culpable than a defendant who commits only one.” (People v. Sanders, supra, 51 Cal.3d at p. 529, quoting People v. Bean, supra, 46 Cal.3d at pp. 954-955.) Clark fails to address the prior decisions of this court rejecting his argument or offer any reason for this Court to revisit its decisions in Sanders, Melton, and Bean. This Court has previously rejected the identical argument and should do so here. LVI. THE EVIDENCE OF CLARK’S INVOLVEMENTIN THE 1990 SOFT WAREHOUSE BURGLARYWAS PROPERLY ADMITTED TO DEMONSTRATE THE RELATIONSHIP BETWEEN CLARK AND WILLIAMS AND CLARK’S MOTIVE TO MURDER WILLIAMS TO REBUT CLARK’S ARGUMENT OF LINGERING DOUBT AS TO .- HIS GUILT Clark contends that the trial court improperly admitted irrelevant evidence at the penalty phase retrial that Clark was involved with Ardell Williams in a burglary at a Soft Warehouse store in 1990. (AOB 560-563.) 207 However, the evidence was properly admitted to demonstrate the relationship between Clark and Williams and Clark’s motive to murder Williamsto prevent her from testifying in the Comp USAcase to rebut Clark’s argument of lingering doubt as to his guilt. Asdiscussed in Argument X, ante, which is incorporated herein by reference, only relevant evidenceis admissible. (Evid. Code, § 350; Peoplev. Cunningham,supra, 25 Cal.4th at p. 995.) Relevant evidence is defined as, evidence, including evidencerelevant to the credibility of a witness .. ., having any tendencyin reason to prove or disprove any disputed fact that is of consequence to the determination ofthe action. (Evid. Code, § 210; People v. Cunningham, supra, 25 Cal.4th at p. 995.) A trial court has broad discretion to determine the relevance ofevidence and its exercise of discretion “is not grounds for reversal unless ‘ “the court exercisedits discretion in an arbitrary, capricious or patently absurd mannerthat resulted in a manifest miscarriage ofjustice.” ’ [Citations.]” (People v. Ochoa, supra, 26 Cal.4th at pp. 437-438; see also People v. Cunningham, supra, 25 Cal.4th at p. 995.) | At the penalty phaseretrial, Clark filed a motion in limine to exclude any reference to the Soft Warehouse burglary perpetrated by Clark and Ardell Williams in 1990 as being irrelevant to the penalty determination under Penal Code section 190.3, subdivision (b) and (c), and as being unduly prejudicial under Evidence Code section 352. (12 CT 4386-4391, 4557-4566.) The prosecution responded that the evidence was relevant to show Clark’s relationship with Williams and motive to murder her to prevent her from testifying against him in the Comp USA case and thereby rebut Clark’s argumentoflingering doubt. (12 CT 4604-4605.) At the hearing on the motion, the prosecution explained that the evidence of the Soft Warehouse burglary was not being offered pursuant to Penal Code section 190.3, subdivisions (b) and (c). (73 RT 12278-12281.) 208 Instead, the prosecution sought to introduce it pursuant to Penal Code section 190.3, subdivision (a) as evidence in aggravation relating to the circumstances ofWilliams’s murder. Therelationship between Clark and Williamstended to establish his motive to murder Williamsto prevent her from testifying, thereby rebutting Clark’s argumentof lingering doubt. (73 RT 12410-12412.) Thetrial court found the evidence to be inadmissible under Penal Code section 190.3, subdivision (a) as evidence in aggravation, but admitted the evidenceas relevant evidence ofmotive to rebut Clark’s argumentoflingering doubt. (73 RT 12416-12420.) At the penalty phase retrial, Richard Highness, a Soft Warehouse salesperson, testified that Ardell Williams wasa cashierat the Soft Warehouse store in Torrance in 1990 when Clark cameto the store to buy $10,000 worth of computer equipment, which Williams allowed him to take without paying. (81 RT 14040-14052.) When determining the penalty in a capital case, a jury may consider whether there is any lingering doubt as to the defendant’s guilt. (People v. Harrison, supra, 35 Cal.4th at p. 255.) The trial court instructed the jury at the penalty phaseretrial, at Clark’s request, that it could consider lingering doubt ofClark’s guilt as mitigation. (13 CT 4858.) Lingering doubt was the principle argument in mitigation that Clark made to the jury. (90 RT 16541-16567, 16570-16656, 16666-16669.) Lingering doubtas to Clark’s guilt was therefore one of the contested issues at the penalty phaseretrial. Accordingly, evidence ofguilt, such as evidence that Clark and Williams had previously been involved in criminalactivity together which lent credibility to her statements to the police and the grandjury regarding Clark’s masterminding ofthe Comp USArobbery, testimony Clark sought to prevent by arranging her murder, was relevant to 209 rebut Clark’s argumentof lingering doubt.’ (See People v. Blair, supra, 36 Cal.4th at pp. 750-751; see also People v. Haskett (1990) 52 Cal.3d 210, 242; People v. Boyd (1985) Cal.3d 762, 776.) Even assumingthe trial court improperly admitted evidence ofthe Soft Warehouse burglary, any error was harmless. A jury’s penalty determination will not be disturbed on appeal based on the improper admission of evidence unless it is reasonably probable that the penalty determination would have been different had the evidence not been admitted. (See People v. Combs, supra, 34 Cal.4th at p. 861.) Here, the evidence relating to Clark’s involvementin the Soft Warehouse burglary was limited to the testimony of one witness and amountedto a briefreference in an otherwise lengthy penalty phaseretrial. The criminal conduct involved wasrelatively minor, particularly in comparison to the murders and other crimes ofwhich Clark stood convicted. Further, the Soft Warehouse burglary was never mentionedbythe prosecutor in argument. (90 RT 16469-16536.) There is simply no reasonable likelihood that, absent admission of the evidence of the Soft Warehouse burglary, Clark would have enjoyed a more favorable outcome. The evidence in aggravation was overwhelming in comparisonto the circumstances in mitigation. 49, Although Clark raised an Evidence Code section 352 challenge to the admission ofthe Soft Warehouse evidence (13 CT 4562-4564), Clark never sought, and the trial court never made,a ruling on Clark’s objection. (73 RT 12416-12420.) Clark’s failure to press for a ruling on the objection forfeits the claim on appeal. (See People v. Morris, supra, 53 Cal.3d at p. 190, overruled on other grounds, People v. Stansbury, supra, 9 Cal.4th at p. 830,fn. 1.) 210 LVII. THE EVIDENCE OF THE SOFT WAREHOUSE BURGLARY WAS NOT OFFERED AS EVIDENCE IN AGGRAVATION AND WAS NOT SUBJECT TO THE STRICTURES OF PENAL CODE SECTION 190.3, SUBDIVISION(b) Clark contends that evidence of Clark’s participation with Ardell Williams in the Soft Warehouse burglary was improper under Penal Code section 190.3, subdivision (b), even though not offered as evidence in aggravation, because it did not involve force or violence.’ (AOB 564-566.) However, the evidence of the Soft Warehouse burglary was not offered as evidence in aggravation and wasnot subject to the strictures of Penal Code section 190.3, subdivision (b). Asdiscussed in Argument LVI, ante, evidence ofClark’s involvement with Ardell Williams in the 1990 Soft Warehouse burglary was properly admitted to show the relationship between the two andto help establish Clark’s motive to murder Williams in order to rebut Clark’s argumentoflingering doubt. Clark, however, claims that Penal Codesection 190.3, subdivision (b), “controls even in a retrial and where the prosecutor asserts the basis of admissibility as lingering doubt.” (AOB 565.) Clark’s claim does not withstand scrutiny. Penal Code section 190.3, subdivision (b) provides that, in making a penalty determination,the jury's consideration ofprior unadjudicated criminal activity is limited to that conduct involving force or violence. (People v. Boyd, supra, 38 Cal.3d at pp. 772-776.) Clark correctly notes that the Soft Warehouse 50. Clark again claims that the evidence should have been excluded under Evidence Codesection 352. (AOB 565-566.) As discussed in Argument LVI, ante, Clark forfeited the claim byfailing to press for a ruling in thetrial court on his Evidence Codesection 352 objection. 211 burglary did not involve force or violence of the threat of force or violence. (AOB 564.) However, as this Court observed, “The Boyd rule does not apply to evidence presented at the guilt phase or by the defense. Rather, “It stands for the proposition that the 1978 law prevents the prosecution from introducing,in its case-in-chief, aggravating evidence not contained in the various factors listed in section 190.3.’ [Citation.]” [Citation.] (People v. Riel (2000) 22 Cal.4th 1153, 1207.) As discussed in Argument XXXVII, ante, the evidence of the Soft Warehouse burglary was properly admitted in the guilt phase of the trial and was therefore not limited by Penal Code section 190.3. Further, the statutory limitation recognized by this Court in Boyd is directed against the admission ofunadjudicated, non-violent criminal conduct by the prosecution as evidence in aggravation. (See e.g. People v. Boyd, supra, 38 Cal.3d at pp. 772-776.) Penal Code section 190.3, subdivision (b)’s focus on evidence offered in aggravation is demonstrated by the policies recognized by this Court as underlying the subdivision: (a) that nonviolent misdemeanorsare not important enoughto be given any weight in deciding whether to impose a death penalty; and (b) that nonviolent felonies are entitled to some weight, but only ifevidenced by a conviction - otherwise the time and trouble ofproving the crime will outweighits probative value. (Id. at p. 774.) Here, as discussed in Argument LVI, ante, the evidence of the Soft Warehouse burglary wasnot offered in aggravationat all, but to rebut Clark’s lingering doubt argumentoffered in mitigation. Shortly after thejury heard the testimonyrelating to the Soft Warehouse burglary at the penalty phaseretrial, the trial court, at Clark’s request (81 RT 14087-14096), cautioned the jury as follows: I wanted to give you an admonition concerning Software House[sic] evidence before we proceed, however. You are going to get other 212 instructions at the conclusion of the case which will help guide you in your deliberation process. The evidence concerningthe alleged theft from the Software House [sic], ifbelieved, is being offered by the People for a limited purpose to show a criminal relationship, if any, between [Clark] and Ardell Williams. Okay? Andis that clear to everybody? So limited purpose, that meansthatis all you are allowed to consider it for if you believe it and accept it. If not, then it is not evidence to be considered. Fair enough? (81 RT 14097.) The Soft Warehouse burglary was never mentionedbythe prosecutor in argument. (90 RT 16469-16536.) There is simply no basis in the record to | conclude that the evidence waseither offered or considered as justifying the imposition of Clark’s death sentence. This Court in Boyd expressly recognized that such evidence, while improperif offered in aggravation, could nonetheless be admissible to rebut mitigating evidence presented by the defendant under factor (k). (People v. Boyd, supra, 38 Cal.3d at p. 776.) While this Court suggested in dicta that unadjudicated non-violent criminal activity would be relevant and admissible in rebuttal only after the defendant presented mitigating evidence (Ibid.), a position Clark advocated both in the trial court (73 RT 12418-12419) and on appeal, the issue of lingering doubtis of a different character than other mitigating factors. While the prosecution, in its case-in-chief, offered numerous witnesses whotestified regarding the circumstances surrounding the murders ofKathy Lee and Ardell Williams under Penal Code section 190.3, subdivision (a), which permits evidence regarding the circumstances of the underlying offenses and special circumstance findings, Clark vigorously cross-examined those witness, attacking their credibility and the underlying evidenceofhis guilt. This was the foundation ofhis efforts at arguing lingering doubtas a factor in mitigation and 213 occurred throughoutthe prosecution’s case-in-chief. Accordingly,the evidence requiring rebuttal was not presented through defense witnesses, but through the cross-examination of the witnesses called by the prosecution. The Soft Warehouse burglary evidence offered to bolster the credibility of Williams’s statements to the police and the grand jury by establishing a pre-existing criminal relationship between Clark and Williams was therefore relevant and admissible in the prosecution’s case-in-chief to rebut the attacks already launched by Clark in cross-examination. As discussed in Argument LVI, ante, even assuming that it was improper to admit the evidence,it is not reasonably probable that absent the Soft Warehouse burglary evidencethejury’s penalty decision would have been different. Similarly, Clark makes no showing that he was prejudiced by the presentation of the evidence in the prosecution’s case-in-chief with an appropriate limiting instruction, rather than in rebuttal. Accordingly, any error was harmless. LVIII. THE EVIDENCE OF CLARK’S PARTICIPATION WITH ARDELL WILLIAMS IN 1990 SOFT WAREHOUSE BURGLARY PRESENTED AT THE PENALTY PHASE RETRIAL WAS NOT IMPROPER CHARACTER EVIDENCE Clark contends that. the trial court improperly admitted evidence of Clark’s involvement with Ardell Williams in the Soft Warehouse burglary at the penalty phaseretrial in violation of Evidence Codesection 1101's prohibition against character evidence, the trial court’s ruling in the guilt phase excluding such evidence, and Penal Code section 190.3. (AOB 567-577.) Clark never objected to the evidence under Evidence Code section 1101, and he has forfeited the claim on appeal. In any event, the evidence was offered not to show Clark’s bad character, but to show a criminalrelationship between Clark 214 and Williams, lending credibility to her statements to police and the grandjury regarding the Comp USAcase and goingto the prosecution’s theory ofmotive as to her murder. The evidence was therefore admissible under Evidence Code section 1101, subdivision (b). Further, as discussed previously, the trial court never ruled the Soft Warehouse burglary evidence inadmissible at the guilt phase and Penal Codesection 190.3 did not preclude the admission of the evidence. | Clark has forfeited his claim that admission of the Soft Warehouse evidence violated Evidence Code section 1101 by failing to object on this groundin thetrial court. In order to preserve a claim that the introduction of character evidence violated Evidence Code section 1101, a defendant must make a timely and specific objection on that groundin thetrial court. (Evid. Code, § 353; People v. Guerra, supra, 37 Cal.4th at p. 1117.) Although Clark objected to the Soft Warehouse evidence on a numberof grounds, he never identified Evidence Code section 1101 as one of them. (12 CT 4386-4391, 4557-4566.) Accordingly, Clark’s claim that the evidence was improper character evidence under Evidence Codesection 1101 is forfeited. (See Jbid.) Asdiscussed at length in Argument XVII, ante, the evidenceofthe Soft Warehouse burglary was not ruled inadmissible bythetrial court during the guilt phase and the record does not support Clark’s contention to the contrary. Moreover, by showing that Clark had previously been involved in a computer store theft with Williams, it became clear why he would bring her with him to case the Comp USAstore and thereby bolstered the credibility of the statement. It further explained why Williams’s potential testimony was so dangerousto Clark and why he had a motive to murderher to prevent her from testifying. This was an appropriate purpose under Evidence Codesection 1101, subdivisions (b) and (c). (See People v. Douglas, supra, 50 Cal.3d at p. 510 [prior act evidence admissible under 1101 to corroborate witness’s testimony implicating defendant as perpetrator of murders], overruled on other grounds 215 in People v. Marshall, supra, 50 Cal.3d at p. 933, fn. 4.) Similarly, as discussed in Argument LVII, ante, and incorporated herein by reference the evidence wasnotprohibited under Penal Code section 190.3. As discussed in Argument LVI, ante, and incorporated herein by reference, even assuming that it was improper to admit the evidence,it is not reasonably probable that Clark would have enjoyed a more favorable outcome ifthe Soft Warehouse burglary evidence had not been admitted. Accordingly, any error was harmless. LIX. THE TRIAL COURT PROPERLY EXCLUDED EVIDENCETHAT,IF SENTENCED TO LIFE WITHOUT PAROLE, CLARK WOULD ALWAYS BE INCARCERATEDINAHIGH SECURITY FACILITY AS SPECULATIVE AND IRRELEVANT Clark contends that the trial court improperly excluded evidence in mitigation offered at the penalty phaseretrial through the testimony of Clark’s sentencing expert that, if sentencedto life in prison without parole, Clark would always be housedin a high security facility. (AOB 578-588.) However, the trial court properly excluded the evidenceasirrelevant and speculative, since it was impossible to know the security conditions ofClark’s future incarceration and no evidence wasoffered that such security conditions would inhibit Clark from communicating with the outside world to plan and execute another murder like that of Ardell Williams. While the Eighth and Fourteenth Amendments require that the jury at the penalty phase ofa capital trial be permitted to considerall relevant mitigating evidence, the admissibility of such evidence is subject to the trial court’s threshold determination of the relevance of the evidence. (People v. Frye, supra, 18 Cal.4th at p. 1015.) “[T]he concept of relevance asit pertains to mitigation evidenceis no different from the definition ofrelevanceas the term 216 is understood generally.” (/d. at pp. 1015-1016, citing McKoy v. North Carolina (1990) 494 U.S. 433 [110 S.Ct. 1227, 108 L.Ed.2d 369].) “« “Relevant mitigating evidence is evidence whichtendslogically to prove or disprove somefact or circumstance whicha fact-finder could reasonably deem to have mitigating value....”’” (People v. Frye, supra, 18 Cal.4th at p. 1016.) A trial court retains discretion to determine the relevance ofmitigating evidence and its admissibility in the penalty phase ofa capital trial. (/d. at p. 1015.) Atthe penalty phaseretrial, the prosecution objected to the testimony of Norman Morein, a sentencing consultant and defense expert witness, insofar as his testimony would relate to Clark’s security classification in state prison if sentencedto life without the possibility of parole. The prosecutor argued that such testimony was impermissibly speculative. (89 RT 16344.) Thetrial court held that Morein could testify regarding Clark’s adaptability to a prison environment, but that testimony regarding the conditions of confinement was speculative and irrelevant. (89 RT 16346.) Morein thentestified at some length regarding the security classification system in state prison and the way in which inmatesare classified for security purposes. (89 RT 16350-16364.) However, when asked “[c]an an LWOP prisoner ever get downto a level 2 or level 1 institution?,” the prosecutor objected that the question called for speculation andthetrial court sustained the objection. (89 RT 16364.) Clark’s counsel then asked, Based upon your background, training and experience in the California Department of Corrections system, have you ever known of an LWOP prisoner making his way down to level 2 or level 1 institutions? (89 RT 16364.) The prosecutor objected to this question as irrelevant andthetrial court sustained the objection. (89 RT 16364.) Clark contends that it was improperto preclude him from introducing evidencethat, if sentencedto life without the possibility of parole, he “would 217 be classified as a security level IV inmate and that he could not receive a reduced security level.” (AOB 578.) He argues that such evidence was necessary to rebut the following argumentofthe prosecutor: What do we do with [Clark]? What do we do? This second murder he wasacrossthestreet, you know,in these big thick concrete walls with bars. And you have heard testimony about howheis going to adapt to prison, about how heis a calming influence. What do we do? What do we as a society do? He has demonstrated that he hasthe ability - not only the ability, it happened, to orchestrate, to create, to enter into an agreement to murder somebody whenheis in custody. Andthe person who got murdered wasoutof custody. And what is the punishment of life without [the] possibility of parole, how is the California Department of corrections going to stop that that [sic] the Orange County Jail could not? Phonecalls. Visits with other inmates, kites, what? (90 RT 16533-16534; AOB 579.) First, as Clark acknowledges (AOB 580, fn. 49), this Court has previously held that evidence of the conditions in prison for an individual sentencedto life without the possibility ofparole is irrelevant to mitigation, as it relates “neither to defendant and his background nor to the nature and circumstances ofhis crime.” (People v. Thompson (1988) 45 Cal.3d 86, 139; see also People v. Ray, supra, 13 Cal.4th at p. 353.) Clark argues that unlike the evidence rejected by this Court in Thompson,the evidenceofthe security under which Clark would be housedif sentencedto life without parole was not offered as mitigating evidence in and of itself, but to rebut the prosecutor’s arguments of future dangerousness. (AOB 580.) In this sense, the evidence would be more akin to “ ‘evidence that the defendant would not pose a dangerif spared (but incarcerated),’ ” which 2 99“ “must be considered potentially mitigating.’ (See People v. Ray, supra, 13 Cal.4th at p. 353, emphasisin original.) 218 However, even though evidenceto rebut claims offuture dangerousness are relevant in mitigation, Clark ignores the second aspect of this Court’s holding in Thompson,that, [d]escribing future conditions of confinement for a person servinglife without possibility of parole involves speculation as to what future officials in another branch of governmentwill or will not do. (People v. Thompson, supra, 45 Cal.3d at p. 139.) The evidence that was excludedbythetrial court, specifically whether an inmate serving life without the possibility of parole could ever receive a lower security classification, required Clark’s expert to engage in pure speculation. The witness had no way of knowing or even expressing an informed opinion as to Clark’s potential security status in state prison during his entire period of incarceration. Administrative policies regarding the security classification of inmates could be altered. Future legislation could alter the conditions under whichstate prison inmates are incarcerated. Morein simply had no way ofknowingthe precise security situation Clark would be subjected to if sentencedto life without parole and any testimony on the point would be a guess and of noassistance to the trier of fact in assessing Clark’s future dangerousness. Accordingly,the trial court properly rejected the evidence as unduly speculative. (See bid.) Moreover, even assuming Morein could have opinedas to Clark’s future security status without engaging in rank and improperspeculation, the opinion wasstill irrelevant to the subject of Clark’s future dangerousness. Clark was convicted of conspiring to murder and murdering Ardell Williams while incarcerated in the Orange County Jail. The evidence indicated that he plotted the murder with Antoinette Yancey during her numerousvisits to the jail and ‘during lengthy conversations on the jail pay phones. Conspicuously absent from Morein's testimony was how being housedin a level 4 institution as an LWOPinmate would prevent Clark from engaging in similar acts. Clark made 219 no effort to offer any evidencethat a level 4 institution would restrict Clark’s communication with the outside world, such as by prohibiting mail, phone access, or visitation. (89 RT 16348-16364.) In the absence of such evidence explaining how Clark’s potential security status in state prison would affect his ability to perpetrate crimes in the future like the murder ofArdell Williams, the evidence wasirrelevant to the issue of Clark’s future dangerousness. Even assumingthe trial court improperly excluded the evidence, any error was harmless beyond a reasonable doubt. The improper exclusion of mitigating evidence in the penalty phase of a capital trial is subject to the harmless error analysis articulated by the United States Supreme Court in Chapmanv. California, supra, 386 U.S.at 24, and will not result in the reversal of the judgment where the error is harmless beyond a reasonable doubt. (People v. Roldan, supra, 35 Cal.4th at p. 739.) Asdiscussed above, there was considerable properly admitted evidence in aggravation. The question of Clark’s future dangerousness was only one relatively minoraspectofthe prosecutor’s argument, which focused heavily on the circumstances of the offenses and, to a lesser extent, on Clark’s prior criminal conduct. Further, the evidence proffered by Clark, that, in Morein’s opinion, Clark would neverbe ableto get into a level 1 or 2 facility, would not have rebutted the prosecution’s argument of future dangerousness becauseit was impossible to guarantee that Clark would always be subject to the strictest security measures in state prison and there was no evidencethat, even ifhe was permanently housedin level 4 facility, that his ability to reach into the outside world to arrange crimeslike the murder of Ardell Williams would be hampered im any way. Accordingly, any error in excluding the evidence was harmless beyond a reasonable doubt. (See bid.) 220 LX. THE PROSECUTOR DID NOT ARGUE THAT ANTOINETTE YANCEYFIRED THE FATAL SHOTIN THE WILLIAMS MURDER AT THE PENALTY PHASE RETRIAL Clark contends that the trial court improperly permitted the prosecutor to argue at the penalty phase retrial that Yancey was the actual shooter in the Williams murder, despite being collaterally estopped from making this argument based on the jury's finding in Yancey’s murder trial that the special allegation that she personally used a firearm in Williams’s murder was untrue. (AOB 589-593.) However, Clark ignores the fact that the trial court granted his in limine motion to preclude the prosecutor from arguing that Yancey wasthe actual shooter and that the prosecutor abided bythetrial court’s ruling and did not argue that theory to the jury. Atthe penalty phaseretrial, Clark made a motionin limineto preclude the prosecution from arguing that Antoinette Yancey shot Ardell Williams underthe doctrine of collateral estoppel. (12 CT 4392-4402.) He basedthis contention on the fact that the jury in Yancey’s separate murdertrial found her guilty ofWilliams’s murder, but found a special allegation that she personally used a firearm in the commission of the murder notto be true. (11 CT 4113, 4116.) Atthe hearing on the motion, the prosecutor respondedthat the verdict in the Yancey case should not preclude him from arguing that Yancey shot Williams because he was underno obligation to prove beyond a reasonable doubt that Yancey was the shooter at the penalty phase retrial. (73 RT 12287-12289.) Thetrial court ultimately granted the motion andinstructed the prosecutor, I think a jury foundthat to be untrue. I think you can showthat [Yancey] wasthere and [Williams] was shot. You don't have to say that 221 [Yancey] did the shooting. (73 RT 12424.) Thetrial court later reiterated its ruling granting Clark’s motion,stating that “I am saying [Clark] wins on that one.” (73 RT 12426.) The prosecutor abidedbythetrial court’s ruling, never mentioning that Yancey was the actual shooter in either opening statement (77 RT 13088-13158) or closing argument (90 RT 16469-16536). The error Clark complained of was never permitted to occur. Clark’s claim is without merit. LXI. THE TRIAL COURT PROPERLY REFUSED A NUMBER OF CLARK’S PROFFERED SPECIAL INSTRUCTIONS AT THE PENALTY PHASE RETRIAL AS BEING ARGUMENTATIVE AND DUPLICATIVE OF OTHER PROPERLY GIVEN INSTRUCTIONS Clark contends the trial court improperly refused a number of special instructions proffered by the defense at the penalty phase retrial. (AOB 594-601.) However,thetrial court properly rejected Clark’s proffered special instructions as being argumentative and duplicative of other properly given instructions. A. The Trial Court Properly Rejected Clark’s Proposed Modifications Of CALJIC No. 8.85 At the penalty phase retrial, Clark requested that the jury be instructed according to a modified version of CALJIC No.8.85 as follows: In determining whichpenalty is to be imposed on [Clark], you shall considerall of the evidence which has been received during anypart of the trial in this case, [except as you maybehereinafter instructed.] Only those factors which are applicable on the evidence adducedat ' trial are to be taken into account in the penalty determination. All factors may not be relevant and a factor which is not relevant to the 222 evidencein a particular case should be disregarded. The absenceofa statutory mitigating factor does not constitute an aggravating factor. You shall consider, take into account and be guided by the following factors, if applicable: (a) The circumstancesofthe crimes ofwhich [Clark] was convicted in the present proceeding and the existence ofany special circumstances found to be true. However, you may not double count any “circumstances of the offense” which are also “special circumstances.” That is, you may not weigh the special circumstances more than once in your sentencing determination. (b) The presence or absence of criminal activity by [Clark], other than the crimes for which [Clark] has been tried in the present proceedings, which involved the use or attempted use of force or violence. A juror maystill have a lingering or residual doubt as to whether [Clark] was the [sic] legally responsible for the murders ofMs. Lee, and Ms. Williams. Such a lingering or residual doubt, although not sufficient to raise a reasonable doubt at the guilt phase, maystill be considered as a mitigating factor at the penalty phase. Each individual juror may determine whether any lingering or residual doubt is a mitigating factor and mayassign it whatever weight the juror feels is appropriate. The absence ofany violent criminal activity by [Clark] other than the crimes for which he has beentried in the present proceedings is a mitigating factor. (c) The presence or absence of any prior felony conviction, other than the crimes for which [Clark] has been tried in the present proceedings. (i) The age of [Clark] at the time of the crime. (j) Whether or not [Clark] was an accomplice to the offense and his participation in the commission of the offense wasrelatively minor. (k) Any other circumstance which extenuates the gravity ofthe crime even thoughit is not a legal excuse for the crime and any sympathetic or 223 other aspect of [Clark’s] character or record as a basis for a sentenceless than death, whetheror notrelated to the offense for which heis ontrial. The mitigating circumstancesthat I have read for your consideration are given merely as examples ofsomeofthe factors that ajuror may take into account as reasons for deciding not to impose a death sentence in this case. A juror should pay careful attention to each ofthose factors. Anyone ofthem maybesufficient, standing alone, to support a decision that death is not the appropriate punishmentin this case. But a juror should notlimit his or her consideration ofmitigating circumstances to these specific factors. A juror may also consider any other circumstances relating to the case or to the defendant as shown by the evidence as reasons for not imposing the death penalty. A mitigating circumstance does not have to be proved beyond a reasonable doubt. Ajuror mayfind that a mitigating circumstance exists if there is any evidence to support it no matter how weak the evidence is. Any mitigating circumstance may outweighall the aggravatingfacts. A juror is permitted to use mercy, sympathy and/or sentiment in deciding what weight to give each mitigating factor. The factors in the above list which you determine to be aggravating circumstancesare the only ones which the law permits you to consider. You are not allowed to consider any other facts or circumstances as the basis for deciding that the death penalty would be an appropriate punishmentin this case. (13 CT 4757-4760.) Thetrial court, with the exception of adding the phrase, “The absence of a statutory mitigating factor does not constitute an aggravating factor,” rejected Clark’s proposed additions to CALJIC No. 8.85. instruction to only includeline 14 and 15 ofpage 4 [the above-quoted sentence regarding the absenceofa mitigating factor], and I withdraw the remainder of 224 (89 RT 16433-16439.) Clark’s counselstated that, “I just modified my request on this the instruction.” (89 RT 16439.) Thetrial court then instructed the jury according to CALJIC No.8.85 as follows: | In determining which penalty is to be imposed on [Clark], you shall considerall of the evidence which has been received during any part of the trial of this case. You shall consider, take into account and be guided bythe following factors, if applicable: (a) The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstance[s| found to betrue. (b) The presence or absence of criminal activity by the defendant, other than the crime[s] for which the defendant has been tried in the present proceedings, which involved the use or attempted use of force or violence or the express or implied threat to use force or violence. (c) The presence or absence of any prior felony conviction, other than the crimes for which the defendant has been tried in the present proceedings. (d) Whetheror not the offense was committed while the defendant was underthe influence of extreme mental or emotional disturbance. (e) Whether or not the victim was a participant in the defendant's homicidal conduct or consented to the homicidalact. (f) Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct. (g) Whether or not the defendant acted under extreme duress or underthe substantial domination of another person. (h) Whether or not at the time of the offense the capacity of the defendantto appreciate the criminality ofhis conductor to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or the effects of intoxication. (i) The age ofthe defendantat the time of the crime. 225 (j) Whether or not the defendant was an accomplice to the offense and his participation in the commission of the offense wasrelatively minor. (k) Any other circumstance which extenuatesthe gravity ofthe crime even though it is not a legal excuse for the crime [and any sympathetic or other aspect ofthe defendant's character or record [that the defendant offers] as a basis for a sentence less than death, whether or not related to the offense for which he is ontrial.] The absence of a statutory mitigating factor does not constitute an aggravating factor. (13 CT 4855-4856.) Clark contends that this Court approved a substantially similar instruction given at the defendant’s request in People v. Wharton (1991) 53 Cal.3d 522, 600, fn. 23. However, this Court in Wharton did not hold that a trial court is under a sua sponte obligation to give such an instruction. (Jbid.) Again, with the exception ofthe phrase, “The absenceofa statutory mitigating factor does not constitute an aggravating factor,” which was given bythe court, Clark expressly abandoned his request that additional language be added to CALJIC No. 8.85. (89 RT 16439.) A criminal defendant cannot “ ‘complain on appeal that an instruction correct in law and responsive to the evidence was > 99 too general or incomplete’ where the defendant did not request clarifying language in the trial court. (People v. Valdez, supra, 32 Cal.4th at p. 113.) Clark’s express abandonmentof the proposedclarifying language in the tral court forfeits the issue on appeal. (See Jbid.) Nonetheless, the jury was properly instructed according to CALJIC No. 8.85. As this Court has repeatedly concluded, CALJIC No. 8.85 is a legally correct instruction. (See e.g. People v. Moon, supra, 37 Cal.4th at pp. 41-42; People v. Young (2005) 34 Cal.4th 1149, 1225-1226.) Nonetheless, Clark contends that CALJIC No. 8.85, as given, improperly imposed a requirement that the jury find substantial evidence to support a mitigating factor. (AOB 594.) In the first instance, Clark does not 226 cite any languagein the instruction givento the jury that imposed a standard of substantial evidence on mitigating factors. The instruction is silent as to any burden of proof for mitigating factors, and thus the jury is free to consider mitigating factors based on any quantum of evidence presented. (See e.g. People v. Welch (1999) 20 Cal.4th 701, 767.) Moreover, Clark’s reliance on People v. Wharton is misplaced. In Wharton,this Court found a defense special instruction given bythe trial court that included the phrase “[y]ou must find a mitigating circumstance exists if there is any substantial evidence to support it” did not improperly place the burden ofproving mitigating factors on the defendant by substantial evidence. (People v. Wharton, supra, 53 Cal.3d at p. 600.) CALJIC No. 8.85, as given to the jury in this case, did not contain any comparable language and, regardless, this Court found such language in Wharton to be proper. Clark’s other claims with respect to his proposed modified version of CALJIC No.8.85 are similarly without merit. Clark’s proposed language that mitigating factors were notlimited to those enumeratedin the instruction (AOB 594) was duplicative of the language of factor (k) in CALJIC No. 8.85 as provided to the jury. This court has previously interpreted factor (k) “as ‘“allow[ing] the jury to consider a virtually unlimited range of mitigating circumstances.” ’ [Citation.]” (People v. San Nicolas, supra, 34 Cal.4th at pp. 673-674.) Thetrial court’s rejection of the proposed language as duplicative was therefore proper. (See Ibid.) Contrary to Clark’s assertion (AOB 595), factor (k) also adequately communicated that mercy, sympathy and sentiment were relevant in weighing the mitigating factors. This Court has previously rejected a proposed instruction similar to the one initially requested by Clark as both improper and cumulative ofCALJIC No. 8.85(k). (See People v. Lewis, supra, 26 Cal.4th at p. 393 [finding trial court’s rejection of proposed instruction that “{ijn determining whether to sentence the defendantto life imprisonment without 227 possibility of parole, or to death, you may decide to exercise mercy on behalf of the defendant” proper].) B. The Trial Court Properly Rejected Clark’s Proposed Modifications Of CALJIC No.8.87 At the penalty phaseretrial, Clark requested that the jury be instructed according to a modified version of CALJIC No. 8.87 as follows: Evidence has been introduced for the purpose of showing that [Clark] had committed the criminal acts read to you elsewhere in these instructions. Before a juror may consider any of such criminal acts as an aggravating circumstance in this case, a juror mustfirst be satisfied beyonda reasonable doubt that [Clark] did in fact commit such criminal acts. A juror may not consider any evidence of any other criminal acts as an aggravating circumstance. You maynot consider as aggravation any evidence ofunadjudicated acts allegedly committed by [Clark] unless you first determine beyond a reasonable doubt that (1) [Clark] committed the acts; (2) the acts involved the use or attempted use of force or violence or the expressed [sic] or implied threat to use force or violence; [and] (3) the acts were criminal. (13 CT 4762.) Thetrial court rejected Clark’s proffered modification ofthe instruction (89 RT 16440) and ultimately instructed thejury according to CALJIC No.8.87 as follows: Evidence has been introduced for the purpose of showing that [Clark] has committed the following criminal activity: An attempt to preventor dissuade a witness, Alonzo Garrett, from attending or giving testimony, which involvedthe threat of force or violence. Before ajuror mayconsider any criminal activity as an aggravating circumstance in this case, a juror mustfirst be satisfied beyond a reasonable doubt that [Clark] did in fact commit the criminal activity. A juror may not consider any evidence of any other criminal activity as an aggravating circumstance. 228 It is not necessary forall jurors to agree. If anyjuror is convinced beyond a reasonable doubt that the criminalactivity occurred,thatjuror mayconsider that activity as a fact in aggravation. Ifa juror is not so convinced, that juror must not consider that evidence for any purpose. (13 CT 4861.) Clark contends that the last paragraph of the version of CALJIC No. 8.87 given bythe trial court improperly included an admonition that the jurors did not have to unanimously agree on criminalactivity in orderto utilize it as a factor in aggravation, language that was omitted from the proffered modified instruction rejected bythetrial court. Clark contends that, because he wasnot permitted to seek an instruction that the jurors did not have to be unanimousas to mitigating factors, it was unfair to permit such an instruction with respect to aggravating factors. (AOB 596.) This same argumentwasrejected by this Court in People v. Holt (1997) 15 Cal.4th 619, 685-686. Here, as in Holt, thejury was instructed according to CALJIC No. 17.40 that the parties were “entitled to the individual opinion of each juror” andthat“[e]ach ofyou must decide the case for yourself.” (1 3 CT 4863.) “Those instructions adequately informed the jury that resolution of penalty phase factual questionsas well as deciding the appropriate penalty was an individual responsibility.” (People v. Holt, supra, 15 Cal.4th at p. 686.) The jury wascorrectly instructed according to CALJIC No. 8.87. (See Jbid.) C. The Trial Court Properly Rejected Clark’s Proposed Special “Aggravating And Mitigating Factors” Instruction At the penalty phaseretrial, Clark requested that the jury be instructed according to a special “Aggravating and Mitigating Factors” instruction as follows: The determination of punishment turns on the personal moral culpability of [Clark]. 229 Such culpability is assessed in accordance with the specified factors ofaggravation and mitigation upon whichI havealreadyinstructed you. For purposes here, “aggravating” means that which increases [Clark’s] personal moral culpability above the level ofblameworthiness that inheresin the capital offense. By contrast, “mitigation” meansthat which reduceshis culpability below that level. Thus, the circumstancesofthe crimesitselfcan be either aggravating or mitigating. Their character depends on the greater or lesser blameworthiness they reveal - ranging, for example, from the most intentional of willful, deliberate, and premeditated murders to the most accidental of felony murders. Other violent criminal activity is similar. Its presents [sic] is aggravating, suggesting as it does that the capital offense is the product more of [Clark’s] basic character than of the accidents ofhis situation. Its absence is obviously mitigating, carrying the opposite suggestion. This is also the case with prior felony convictions. Their existence is aggravating. They reflect on the relatively greater contribution of character than situation. Moreover, they reveal that [Clark] had been taught, through the application of formalsanction, that criminal conduct was unacceptable - but had failed or refused to learn this lesson. By contrast, the nonexistence of such convictionsplainly is mitigating. The age of [Clark] can also be either aggravating or mitigating. The existence of any of the following circumstances, however, is mitigating and mitigating only: extreme mental or emotional disturbance; victim participation or consent; reasonable belief in moral justification or extenuation; extreme duress or substantial domination; impairment through mental disease or defect or through intoxication; status as an accomplice and minorparticipant; and any other extenuating fact. By contrast, the nonexistence ofany of these circumstancesis not and cannotbe aggravating. The absenceofmitigation does not amount to the presence of aggravation. (13 CT 4769-4770.) Thetrial court denied Clark’s request to give the proffered instruction, finding it “argumentative, somewhat vague, and covered by [CALJIC No.] 230 8.88.” (89 RT 16441-16442.) Thetrial court instead instructed the jury according to CAJLIC No.8.88 as follows: It is now your duty to determine whichofthe two penalties, death or imprisonmentin the state prison for life without possibility of parole, shall be imposedon [the] defendant. After having heard all of the evidence, and after having heard and considered the arguments of counsel, you shall consider, take into account and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have beeninstructed. An aggravating factor is any fact, condition or event attending the commission ofa crime whichincreasesits severity or enormity, or adds to its injurious consequences which is above and beyondthe elements of the crimeitself. A mitigating circumstanceis any fact, condition or event which doesnotconstitute ajustification or excuse for the crime in question, but may be considered as an extenuating circumstance in determining the appropriateness of the death penalty. The weighing ofaggravating and mitigating circumstances does not mean a mere mechanical counting of factors on each side of an imaginary scale, or the arbitrary assignment ofweights to any ofthem. Youare free to assign whatever moral or sympathetic value you deem appropriate to each andall of the various factors you are permitted to consider. In weighing the various circumstances you determine under the relevant evidence which penalty is justified and appropriate by considering thetotality ofthe aggravating circumstances with thetotality ofthe mitigating circumstances. To return ajudgmentofdeath, each of you must be persuaded that the aggravating circumstances are so substantial in comparison with the mitigating circumstances that it warrants death instead oflife without parole. You shall nowretire to deliberate on the penalty. In order to make a determination as to the penalty, all twelve jurors mustagree. Any verdict that you reach must be dated and signed by your foreperson on a form that will be provided and then you shall return with it to this courtroom. (13 CT 4867.) 231 Clark contendsthatthe trial court’s rejection ofhis proposedinstruction improperly deprived the jury ofguidance as to which ofthe enumerated factors could be considered aggravating and which factors could be considered mitigating. (AOB 597.) However, there is no requirementthat a court instruct a jury as to which ofthe factors enumerated in Penal Code section 190.3 are aggravating and which are mitigating. (People v. Young, supra, 34 Cal.4th at p. 1226; People v. Espinoza (1992) 3 Cal.4th 806, 827.) As this Court observed in People v. Vieira (2005) 35 Cal.4th 264, 299, It is generally the task of defense counselin its closing argument, rather than the trial court in its instructions, to make clear to the jury which penalty phase evidence or circumstances should be considered extenuating underfactor (k). D. The Trial Court Properly Rejected Clark’s Proposed Special “Scope Of Mitigation: No Mitigation Necessary To Reject Death” Instruction At the penalty phaseretrial, Clark requested that the jury be instructed accordingto a special “Scope ofMitigation: No Mitigation Necessary to Reject Death”instruction as follows: You have the discretion to decide the appropriate penalty by weighingall the relevant evidence. You may decide, even in the absence ofmitigating evidence,that the aggravating evidence is not comparatively substantial enough to warrant death. (13 CT 4774.) Thetrial court declined to give the proffered instruction, finding that it was duplicative ofCALJIC No.8.88. (89 RT 16442-16445.) The trial court’s ruling wascorrect. This Court has previously held that CALJIC No. 8.88 adequately informsjurors that they may reject a death sentence even in the absence ofany mitigating evidence. (People v. Ray, supra, 13 Cal.4th at pp. 355-356.) 232 Bystating that death can be imposedin only one circumstance-where aggravation substantially outweighs mitigation-the instruction clearly implies that a sentence less than death may be imposedin all other circumstances. “No reasonable juror would assume he or she was required to impose death despite insubstantial aggravating circumstances, merely because no mitigating circumstances were found to exist.” [Citations.] (Id. at p. 356,originalitalics.) E. The Trial Court Properly Rejected Clark’s Proposed Special “Scope And ProofOfMitigation: Sympathy AloneIs Sufficient To Reject Death” Instruction At the penalty phaseretrial, Clark requested that the jury be instructed according to a special “Scope and Proof of Mitigation: Sympathy Alone is Sufficient to Reject Death” instruction as follows: If the mitigating evidencegives rise to compassion or sympathy for [Clark], the jury may, based upon such sympathy or compassion alone, reject death as a penalty. A [mlitigating factor does not have to be proved beyond a reasonable doubt. A juror mayfind that a mitigating circumstanceexists ifthere is any evidence to support it not[sic] matter how weak the evidenceis. (13 CT 4779.) The trial court declined to give the proffered instruction, findingit to be argumentative and duplicative ofCALJIC No.8.85(k). (89 RT 16445-16446.) This Court foundthe identical instruction to be duplicative of CALJIC Nos. 8.85(k) and 8.88 and properly refused. (People v. Hinton (2006) 37 Cal.4th 839, 911-912.) Clark provides no basis for this Court to revisit its decision in Hinton. This Court should similarly reject Clark’s claim. 233 LXII. CLARK FORFEITED HIS CLAIM THAT THE JURY AT THE PENALTY PHASE RETRIAL SHOULD HAVE BEEN INSTRUCTED THAT IT COULD CONSIDER CLARK’S BACKGROUND AS MITIGATION BY FAILING TO REQUEST SUCH AN INSTRUCTION AND, REGARDLESS, CALJIC NO. 8.85 (K) ADEQUATELY INFORMED THE JURY THAT IT COULD CONSIDER CLARK’S BACKGROUNDAS MITIGATION Clark contendsthatthe trial court improperly refused to instruct thejury at the penalty phaseretrial that it could consider his background as mitigation, in addition to his character and record. (AOB 602-613.) In thefirst instance, Clark forfeited the claim because he never requested that the jury be so instructed in thetrial court. Further, CALJIC No. 8.85(k) adequately informed the jury that it could consider Clark’s background as mitigation. Clark has forfeited the claim on appeal. “A party may not complain on appeal that an instruction correct in law and responsiveto the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.” (People v. Hart, supra, 20 Cal.4th at p. 622, quoting People v. Lang (1989) 49 Cal.3d 991, 1024.) Clark contends that “[d]efense special instruction No. 1 sought to expandthe scope ofmitigation in order[sic] by specifically instructing the jury that mitigation encompassed evidenceincluding Clark’s background.” (AOB 610.) The record does not support Clark’s contention. The modified version of CALJIC No. 8.85 offered by Clark did not include the word “background” in its discussion of mitigating factors2” (13 CT 4757-4760; 89 RT 16431-16448.) In fact, the language of factor (k) in Clark’s proposed instruction wasidentical to that of factor (k) in CALJIC No. 8.85 as provided 51. The complete text of Clark’s proposed instruction is provided in Argument LVI, subdivision (A), ante. 234 to the jury, exceptthat the trial court, at Clark’s request, added the phrase,“The absence of a statutory mitigating factor does not constitute an aggravating factor.” (13 CT 4758-4759, 4856; 89 RT 16439.) Clark’s failure to request that the jury be specifically instructed that it could consider Clark’s background as a mitigating factor forfeited the claim on appeal. (See People v. Hart, supra, 20 Cal.4th at p. 622.) Moreover,the instructions given adequately conveyedto thejury thatit could consider Clark’s background as mitigation. This Court has previously rejected a similar claim that ajury in the penalty phase ofa capital trial must be instructed that it may consider the defendant’s background as mitigation, in addition to the defendant's character and record. (People v. Memro (1995) 11 Cal.4th 786, 881.) As in Memro, the jury here was instructed according to CALJIC No. 8.85(k) that it could consider, [a]ny other circumstance which extenuates the gravity of the crime even thoughit is not a legal excuse for the crime [and any sympathetic or other aspect ofthe defendant's character or record [that the defendant offers] as a basis for a sentence less than death[.] (13 CT 4856.) As in Memro, the instruction given “left ‘no possibility the jury misunderstoodits obligation to consider defendant's character and background evidence. ...’? ” (See People v. Memro, supra, 11 Cal.4th at p. 881.) There was no error. 235 LXIII. CLARK HAS FORFEITED HIS CLAIM THE JURY AT THE PENALTY PHASE RETRIAL SHOULD HAVE BEEN INSTRUCTED ACCORDING TO CALJIC NO. 2.11.5 AND, REGARDLESS, NO ADDITIONAL INSTRUCTION ON UNJOINED PERPETRATORS WAS REQUIRED Clark contendsthatthe trial court improperly refused to instruct the jury at the penalty phase retrial according to CALJIC No. 2.11.5, Unjoined Perpetrators of Same Crime, and that the court’s refusal resulted in the jury giving improperconsideration to the fate of Yancey, Ervin, Wilson, and Eric Clark when sentencing Clark to death. (AOB 614-620.) However, Clark has forfeited the claim by failing to request the instruction in the trial court. Furthermore, the trial court was under no obligation to give the instruction because it was duplicative and added nothing to the other properly given instructions in the case and any claim of prejudice based upon the absence of the instruction is entirely speculative. A trial court is obligated, even absenta request, to instruct on the general principles oflaw in a case. (People v. Breverman (1998) 19 Cal.4th 142, 154.) General principles of law are defined as “ ‘those principles closely and openly 52. CALJIC No. 2.11.5 provides: There has been evidence in this case indicating that a person other than a defendant was or may have been involvedin the crime for which that defendantis ontrial. There maybe many reasons whythat personis not here on trial. Therefore, do not speculate or guess as to why the other personis not being prosecutedin this trial or whether[he] [she] has been or will be prosecuted. Your [sole] duty is to decide whether the People have proved the guilt of [each] [the] defendantontrial. 236 connected with the facts before the court, and which are necessary for the jury’s understanding of the case.’ ” (Ibid.) Although this Court has never decided whether an unjoined perpetrator instruction such as CALJIC No. 2.11.5 is a general principle oflaw implicating a trial court’s sua sponte instructional obligations, this Court’s reasoning in Breverman counsels against such a finding. First, the instruction is not “necessary for the jury’s understandingofthe case,” as Breverman’s definition of a general principle oflaw requires. The purpose of an unjoined perpetrator instruction is to “discourage thejury from irrelevant speculation about the prosecution's reasons for not jointly prosecuting all those shown bythe evidence to haveparticipated in the perpetration ofthe charged offenses, and also to discourage speculation aboutthe eventual fates ofunjoined perpetrators. [Citation.]” (People v. Cain (1995) 10 Cal.4th 1, 35.) Asthe above demonstrates, the instruction is more appropriately viewed as a limiting instruction,in that it limits the purpose for which the jury may consider otherwise properly admitted evidence ofthird party involvementin the crimes. Limiting instructions, by statute, must only be given upon request. (Evid. Code, § 355; see also People v. Dennis, supra, 17 Cal.Ath at p. 533.) Here, Clark did not request that CALJIC No. 2.11.5 be given. At the penalty phaseretrial, the trial court initiated a discussion of the propriety ofgiving CALJIC No. 2.11.5. (89 RT 16291.) When asked aboutthe instruction, Clark’s counsel opined that it was a correct statement of the law. (89 RT 16292.) Thetrial court disagreed, indicating that the instruction was incorrect because it discussed the prosecution’s burden ofproving Clark guilty, which wasinapplicable at the penalty phase ofthetrial. (89 RT 16292.) The trial court also noted that it was improperto give the instruction where two of the other uncharged perpetrators were witnesses. (89 RT 16293.) 237 Although Clark’s counsel vaguely suggested that the instruction could be modified to omit the final sentence about the prosecution’s burden of proving guilt, Clark offered no other appropriate modifying language or, indeed, any languageat all. (89 RT 16292.) Instead, Clark’s counsel ultimately sought to withdraw theinstruction,stating, “I was going to say withdrawn,but it [CALJIC No.2.11.5] is not on ourlist. It is the Court’s instruction.” (89 RT 16293; 13 CT 4748-4753.) The trial court declined to give the instruction. (89 RT 16293.) Clark’s express disavowal ofany requestthat the trial court instruct according to CALJIC No.2.11.5 forfeits the claim on appeal. (See e.g., Evid. Code, § 355; People v. Dennis, supra, 17 Cal.4th at p. 533.) However, even assuming the issue were preserved on appeal,thetrial court properly declined to give the instruction. In the first instance, it is improperfor a trial court at the penalty phase of a capital trial to instruct the jury according to CALJIC No.2.11.5 regarding uncharged perpetrators where those individuals havetestified as witnesses in the case, as this would interfere with the ability to challenge accomplice testimony. (People v. Hernandez (2003) 30 Cal.4th 835, 875.) In the instant case, both Matt Weaverand Jeanette Mooretestified at the penalty phase and the trial court gave the panoply of instructions relating to accomplice testimony. (13 CT 4838-4839.) Accordingly, it would have been improper to give the instruction in its unmodified form. (See /bid.) Clark contendsthat the instruction should have been modified to exclude Weaverand Moore,instead focusing on Eric Clark, Nokkuwa Ervin, Damian Wilson, and Antoinette Yancey, who did nottestify in the case. (AOB 616.) However, a trial court may properly refuse to give an instruction that is ‘duplicative ofotherinstructions,as well as those that are incorrect or confusing. (People v. Moon, supra, 37 Cal.4th at p. 30.) Thetrial court instructed the jury according to CALJIC No. 8.85(j) that, in determining the penalty, it could consider “[w]hether or not the defendant was an accompliceto the offense and 238 his participation in the commission of the offense wasrelatively minor.” (13 CT 4856; Pen. Code, § 190.3, subd. (j).) This instruction informedthejury of the limited purpose for which it could considerthe participation ofthird parties in the offenses and therefore CALJIC No. 2.11.5 was unnecessary and duplicative. Nonetheless, even assuming that the trial court should haveinstructed the jury according to CALJIC No. 2.11.5, any error was harmless. A penalty phase determination will not be reversed based on instructional error unlessit is reasonably probable that a more favorable penalty determination would have been madeabsent the error. (People v. Slaughter (2002) 27 Cal.4th 1187, 1201.) First, as discussed above, since Moore and Weavertestified, they were not properly the subject ofCALJIC No.2.11.5, but rather consideration oftheir testimony was more properly the subject of the accomplice instructions given by the trial court. Accordingly, the only possible error with respect to not giving CALJIC No. 2.11.5 would relate to Yancey, Ervin, Wilson, and Eric Clark. Clark argues that the absence ofthe instruction was prejudicial because it allowed the jury to believe that “four others may have gotten away with serious crimes, or received light sentences, and usedthe case against Clark to 999“send a message.’ (AOB 619.) However, Clark’s argument“piles speculation upon speculation”to arrive at the untenable conclusion that the jury’s penalty determination reflects improper consideration ofthe fates ofthese four unjoined perpetrators. (See People v. Carrera (1989) 49 Cal.3d 291, 343.) No mention was made during the penalty phaseretrial as to the fates of any unjoined perpetrators in the case. The prosecutor never suggested to the jury that Clark was anything butthe pivotal participantin the crimesorthat he 239 deserved death based on anything other than his own personal culpability. As the prosecutor explained in argument, [T]he only conclusion that you can draw is that [Clark] is responsible for these two crimes. That is the only conclusion. There is no lingering doubt. The person who masterminded that robbery is now before you for you to pass judgmentfor punishment. The person whoorchestrated while he is in jail the murder ofArdell Williams is now before you for you to determine the punishment. You havethe right person. You havethe person, who . . . deserves and richly so the death penalty. (90 RT 16522.) It is not reasonably probable that the jury at the penalty phase retrial improperly considered the fate ofunjoined perpetrators in determining Clark’s sentence and anyerror in notinstructing the jury according to CALJIC No. 2.11.5 was harmless. LXIV. THE TRIAL COURT PROPERLY REFUSED TO INSTRUCT THE JURY ACCORDING TO CALJIC NO. 2.40 BECAUSE THE INSTRUCTIONIS, BY ITS TERMS, A GUILT PHASE INSTRUCTION AND, IN ANY EVENT, THE CONSIDERATION OF CLARK’S CHARACTER WAS ADEQUATELY COVERED BY CALJIC NO.8.85 (k) Clark contendsthatthe trial court improperly refusedto instructthejury at the penalty phaseretrial according to CALJIC No.2.40,Traits ofCharacter 53. Clark offered an edited version of CALJIC No. 2.40, which read: Evidence has been received for the purpose of showing the good character of the defendant for those traits ordinarily involved in the commission of a crime, such as that charged in this case. 240 of Defendant. To the contrary, the trial court properly refused to instruct the jury according to CALJIC No. 2.40 because the instruction is, by its terms, a guilt phase instruction arid, regardless, the consideration of Clark’s character was adequately covered by CALJIC No. 8.85(k): Atthe penalty phaseretrial, Clark requested that the jury be instructed according to CALJIC No.2.40 regarding evidence of Clark’s good character. (13 CT 4807; 89 RT 16296.) The prosecutor objected, noting that the instruction referred to reasonable doubtat the guilt phase and arguedthat factor (k) adequately covered the consideration of mitigating evidence regarding Clark’s character. (89 RT 16296.) Clark’s counsel indicated that the instruction could be modifiedto allay the concernsofthe court and the prosecutor and requested an opportunity to do so. The trial court refused to give the instructionin its present form, noting that the substance of the instruction was covered byfactor (k), but indicated that “we'll look at it after [Clark’s counsel] modify it.” (89 RT 16296.) Ata later hearing on jury instructions,the trial court revisited CALJIC No. 2.40. Without offering any modification to the portion of the instruction relating to reasonable doubtas to guilt, Clark simply submitted on the issue. Good characterfor the traits involved in the commission of the crime[s] charged may besufficient by itself to raise a reasonable doubt as to the guilt of a defendant. It may be reasonedthat a person ofgood characteras to these traits would not be likely to commit the crime[s] of which the defendantis charged. If the defendant’s character as to certain traits has not been discussed among those who know [him], you may infer from the absenceofthis discussion that [his] character in those respects is good. (13 CT 4807,) 241 (89 RT 16431.) The prosecutor again objectedto the instruction andthetrial court refused to give the instruction, explaining, I don't know how it helps. You can argue characterall you like, but I think this reads too muchinto this concept of lingering doubt. And I am reluctantto give it. It is argumentative in any event. Soit is refused. (89 RT 16431.) Thetrial court properly refusedto instruct the jury according to CALJIC No. 2.40 at the penalty phase retrial. As this Court has noted, “By its very language-referring to reasonable doubtas to guilt-this instruction [CALJIC No. 2.40] applies only to the guilt phase oftrial. [Citation.].” (People v. Benavides (2005) 35 Cal.4th 69, 112.) Accordingly, the trial court was correct in finding the instruction to be improperandrefusing to give it. (See /bid.) Moreover, thejury at the penalty phaseretrial, as in Benavides, “was not without guidanceas to the use ofthe character evidence presentedat the penalty phase.” (See Ibid.) Thejury wasinstructed according to CALJIC No.8.85(k) that it could consider “any sympathetic or other aspect ofdefendant’s character or record [that the defendant offers] as a basis for a sentence less than death, whetheror not related to the offenses for which he has been ontrial.” (13 CT 4856.) The jury was adequately instructed. (See /bid.) LXV. CALIFORNIA’S DEATH PENALTY STATUTE DOES NOT VIOLATE THE UNITED STATES CONSTITUTION Clark presents numerous challenges to the constitutionality of California’s death penalty statute. (AOB 629-704.) This Court has consistently and repeatedly rejected these identical claims and should doso here. 242 A. California’s Death Penalty Law Does Not Violate The United States Constitution Because It Meaningfully Narrows The Class Of Persons Eligible For The Death Penalty Clark contends California’s death penalty statute violates the United States Constitution becauseit is impermissibly broad andfails to meaningfully narrow the class of personseligible for the death penalty. (AOB 631-636.) However, this Court has consistently rejected the identical claim and should do so here. In order for a state death penalty statute to survive constitutional scrutiny, the special circumstances that render a defendanteligible for the death penalty, must genuinely narrowtheclass ofpersonseligible for the death penalty and must reasonablyjustify the imposition ofa more severe sentence on the defendant compared to others found guilty of murder. (Zant v. Stephens (1983) 462 U.S. 862, 877 [103 S.Ct. 2733, 77 L.Ed.2d 235].) This Court, in its prior decisions, has consistently found that “(t]he special circumstanceslisted in section 190.2 adequately narrow the class of murders for which the death penalty may be imposed.” (People v. Snow, supra, 30 Cal.4th at pp.125-126; accord People v. Anderson (2001) 25 Cal.4th 543, 601; People v, Sakarias, supra, 22 Cal.4th at p. 632; People v. Frye, supra, 18 Cal.4th at pp. 1028-1029.) | Clark nonetheless conclusorily alleges that California’s 1978 death penalty law wasintendednotto narrow theclass of murdererseligible for the death penalty, but “to make all murdererseligible.” (AOB 632.) Clark focuses on the felony-murder and lying-in-wait special circumstancesas evidencingthis alleged expansion of death-penalty eligibility. (AOB 633-634.) This Court has previously rejected the identical argument with respect to the felony-murder special circumstance, holding that, it appears to be generally accepted that by making the felony murderer but not the simple murderer death-eligible, a death penalty law furnishes 243 the “meaningful basis [required by the Eighth Amendment] for distinguishing the few cases in which [the death penalty] is imposed from the many cases in whichitis not.” [Citations.] (People v. Anderson (1987) 43 Cal.3d 1104, 1147, quoting Furman v. Georgia (1972) 408 U.S. 238, 313 [92 S.Ct. 2726, 33 L.Ed.2d 346,] (conc. opn. of White, J.); accord People v. Musselwhite, supra, 17 Cal.4th at pp. 1265-1266; People v. Marshall, supra, 50 Cal.3d at p. 946.) Similarly, this Court has found the lying-in-wait special circumstance adequately narrows the class of murderers eligible for the death penalty. (People v. Hillhouse, supra, 27 Cal.4th at p. 510; People v. Carpenter (1997) 15 Cal.4th 312, 419; accord Morales v. Woodford (2004) 388 F.3d 1159, 1175-1178.) Clark utterly fails to address the manyprior decisions of this Court rejecting his contention. In short, California’s death penalty law doesnotviolate the United States Constitution because the special circumstances undersection 190.2 adequately narrow the class of murderers eligible for the death penalty. Accordingly, Clark’s claim shouldfail. B. California’s Death Penalty Law Does Not Violate The United States Constitution Because Penal Code Section 190.3, Subdivision (a) Does Not Allow Arbitrary And Capricious Imposition OfThe Death Penalty Clark contends that Penal Code section 190.3, subdivision (a), which calls for consideration of “[t]he circumstances of the crime” in capital case penalty determination has been applied in ways “‘so arbitrary and contradictory” as to violate the United States Constitution. (AOB 637-645.) However,this Court has consistently rejected the identical claim and should do so here. 244 Asthe United States Supreme Court explainedin rejecting a challenge to Penal Code section 190.3, subdivision (a) on constitutional vagueness grounds, our capital jurisprudence has established that the sentencer should consider the circumstances of the crime in deciding whether to impose the death penalty. [Citation.] We would be hard pressed to invalidate a jury instruction that implements what we havesaid the law requires. In any event, this California factor instructs the jury to consider a relevant subject matter and does so in understandable terms. The circumstances of the crimeare traditional subject for consideration by the sentencer, and an instruction to consider the circumstances is neither vague nor otherwise improper under our Eighth Amendmentjurisprudence. (Tuilaepa v. California (1994) 512 U.S. 967 [114 S.Ct. 2630, 129 L.Ed.2d 750].) This Court has consistently rejected the identical claim in its prior - decisions. (People v. Ramos (2004) 34 Cal.4th 494, 533; People v. Maury, supra, 30 Cal.4th at p. 439; People v. Jenkins, supra, 22 Cal.4th at pp. 1050-1053.) Clark utterly fails to address the prior decisions of this Court rejecting his claim. Asthis Court has previously held, Penal Code section 190.3, subdivision (a) is neither arbitrarily nor inconsistently applied and does not violate the United States Constitution. His claim should berejected. C. The United States Constitution Does Not Require That Additional Procedural Safeguards Be Imposed At The Penalty Phase Of Capital Trials Clark attacks a number of prior decisions of this Court rejecting arguments that the United States Constitution requires additional procedural safeguards be imposedat the penalty phase ofcapital trials. (AOB 645-687.) This Court has consistently rejected these arguments and should doso here. (People v. Prieto (2003) 30 Cal.4th 226, 262-263 [no requirement jury find 245 aggravating factors true beyond a reasonable doubt]; People v. Snow, supra, 30 Cal.4th at p. 126 [same]; People v. Anderson, supra, 25 Cal.4th at pp. 589-590 [same]; People v. Brown (2004) 33 Cal.4th 382, 402 [no requirementofjuror unanimity as to aggravating factors]; People v. Prieto, supra, 30 Cal.4th at p. 263 [same]; People v. Brown, supra, 33 Cal.4th at pp. 401-402 [lack ofburden ofproof in penalty determination proper, no requirement thatjury make written findings]; People v. Jenkins, supra, 22 Cal.4th at pp. 1053-1054 [same]; People v. Brown, supra, 33 Cal.4th at p. 402 [no requirement of intercase proportionality review]; People v. Prieto, supra, 30 Cal.4th at p. 276 [same]; People v. Brown, supra, 33 Cal.4th at p. 402 [jury may properly consider unadjudicated criminalactivity in penalty determination]; People v. Anderson, supra, 25 Cal.4th at p. 584 [same]; People v. Brown, supra, 33 Cal.4th at p. 402 [use of such adjectives as “extreme” and “substantial”in the list of mitigating factors proper]; People v. Prieto, supra, 30 Cal.4th at p. 276 [same]; People v. Brown, supra, 33 Cal.4th at p. 402 [no requirementthat court identify which factors are aggravating/mitigating or instruct that certain factors can only be considered in mitigation].) D. California’s Death Penalty Law Does Not Violate The Equal Protection Guarantee Of The United States Constitution By Denying Procedural Safeguards To Capital Defendants That Are Afforded To Non-Capital Defendants Because Capital Sentencing Considerations Are Wholly Different Than Those In Non-Capital | Cases Clark contends that California’s death penalty law violates the equal protection guarantee of the United States Constitution because it denies procedural safeguards to capital defendants that is afforded to non-capital defendants. (AOB 688-689.) This Court has consistently rejected the identical claim and should doso here. 246 Asthis Court explained in People v. Blair, supra, 36 Cal.4th at p. 754, wehave rejected the notion that in view ofthe availability of certain procedural safeguards such as intercase proportionality review in noncapital cases, the denial of those same protections in capital cases violates equal protection principles under the Fourteenth Amendment. [Citations.] As we have observed, capital case sentencing involves considerations wholly different from those involvedin ordinary criminal sentencing. [Citation.] By parity of reasoning, the availability of proceduralprotections such as jury unanimity or written factual findings in noncapital cases doesnot signify that California's death penalty statute violates equal protection principles. Clark fails to address Blair or any of the other decisions of this Court cited therein rejecting his claim. (See People v. Ramos (1997) 15 Cal.4th 1133, 1182; People v. Cox (1991) 53 Cal.3d 618, 691; People v. Allen (1986) 42 Cal.3d 1222, 1287-1288.) Asthis Court has previously held, California’s death penalty law does not violate equal protection. His claim should berejected. E. California’s Death Penalty Law Does Not Violate The United States Constitution Because The Use OfThe Death Penalty Does Not Fall Short Of International Norms Of Human Decency Clark contends California’s death penalty statute violates the United States Constitution because the use of the death penalty as a regular form of punishment falls short of international norms of human decency. (AOB 698-704.) This Court has consistently rejected the identical claim and should do so here. Initially, Clark lacks standing to challenge California’s death penalty statute as violating international law. It is the generalrule that international law does not confer standing on individuals to raise claims of international law violations in domestic courts. (See Committee of U.S. Citizens Living in Nicaragua v. Reagan (D.C. Cir. 1988) 859 F.2d 929, 937; see also People v. Brown, supra, 33 Cal.4th at p. 403, citing Hanoch Tel-Oren v. Libyan Arab 247 Republic (D.D.C. 1981) 517 F.Supp. 542, 545-547.) Accordingly, this Court should reject Clark’s contention as he lacks standing to challenge California law on international law grounds. Nonetheless, Clark’s argument that California’s death penalty statute violates the Eighth and Fourteenth Amendments based on customary international law is unpersuasive. Clark concedesthat“this country is not bound by the laws of any other sovereignty in its administration of our criminal justice.” (AOB 699.) The United States Supreme Court recently reaffirmed this principle in Roper v. Simmons (2005) 543 U.S. 551, __‘ [125 S.Ct. 1183, 1198, 161 L.Ed.2d 1], noting that, while the United States Supreme Court “has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment’s prohibition of ‘cruel and unusual punishments,” it remains the task of the High Court ultimately to interpret the Eighth Amendment. Although the United States Supreme Court has never directly addressed the issue of whether the death penalty violates international law, the lower courts that have considered the question have uniformly concludedthat it does not. (See Buell v. Mitchell (6th Cir. 2001) 274 F.3d 337, 376.) The prohibition of the death penalty is not so extensive and virtually uniform among the nations of the world that it is a customary international norm. According to Amnesty International, as of November 28, 2005, 110 countries in the world still have somesort of death penalty law in place, while 86 countries have abolished the death penalty for all crimes.(Facts and Figures on the Death Penalty: 54. Ofthe 110 countries whichretain the death penalty, 11 reserve the death penalty only for so-called “exceptional crimes,” and 25 have notcarried out an execution forat least the past 10 years. (Facts and Figures on the Death Penalty, [as ofNov.28, 2005].) 248 [as ofNov. 28, 2005].) Asthe Sixth Circuit Court of Appeal explained in Buell, Thereis no indication that the countries that have abolished the death penalty have done so out of a sense of legal obligation, rather than for moral, political, or other reasons. Moreover, since the abolition of the death penalty is not a customary norm ofinternational law, it cannot have risen to the level that the international community as a whole recognizes it as jus cogens, or a norm from which no derogation is permitted. (Buell v. Mitchell, supra, 274 F.3d at p. 373.) Therefore, there is no basis for this Court to conclude that the abolition of the death penalty is a customary norm ofinternational law orthat it has risen to the higher status ofjus cogens. Finally, Clark’s claim lacks merit because it has repeatedly been specifically rejected by this Court. (People v. Harris, supra, 37 Cal.4th atp. 366; People v. Wilson, supra, 36 Cal.4th at p. 362; People v. Ward (2005) 36 Cal.4th 186, 222; People v. Brown, supra, 33 Cal.4th at p. 403; People v. Hillhouse, supra, 27 Cal.4th at p. 511; People v. Ghent, supra, 43.Cal.3d at pp. 778-779.) Clark utterly fails to address the manyprior decisions of this Court rejecting his contention. In short, Clark has no standing to invokeinternational law asa basis for challenging his judgment of death and, regardless, California’s death penalty law doesnotviolate the United States Constitution becausethe use ofthe death penalty does not fall short of international norms of human decency. Accordingly, Clark’s claim should fail. LXVI. THE AGGRAVATING FACTORS SET FORTH IN PENAL CODE SECTION 190.3 AND CALJIC NO.8.85 DID NOT VIOLATE THE UNITED STATES CONSTITUTION Clark makes a numberofconstitutional challenges to the aggravating factors set forth in Penal Code section 190.3 and CALJIC No.8.85. (AOB 249 705-742.) As will be discussed below,this Court has uniformly rejected these challenges and should do so here. A. Penal Code Section 190.3 Factors (a) And (b) Are Not Unconstitutionally Vague Clark challenges two ofthe aggravating factors set forth in Penal Code section 190.3 and CALJIC No. 8.85, factors (a) and (b),as being unconstitutionally vague in violation of the Eighth and Fourteenth Amendments. (AOB 709-714.) This Court has previously recognized the United States Supreme Court’s rejection of these identical arguments and should do so here. (People v. Williams, supra, 16 Cal.4th at pp. 267-268,citing Tuilaepa v. California, supra, 512 U.S. 967 [114 S.Ct. 2630, 129 L.Ed.2d 750] [factors (a) and (b) not unconstitutionally vague because they possess “* “common-sense core of meaning. . that criminal juries should be capable of understanding” ’ ”].) B. The Trial Court Had No Sua Sponte Obligation To Delete Inapplicable Mitigating Factors From CALJIC No.8.85 Clark contendsthat the trial court had a sua sponte obligation to delete inapplicable mitigating factors, including factors (e), (f), and (g)from 55. Penal Code section 190.3, pertinently provides that a penalty phase jury may consider: (a) The circumstancesofthe crime ofwhich the defendant was convictedin the present proceeding andthe existence ofany special circumstances foundto be true pursuant to Section 190.1. (b) The presence or absence ofcriminal activity by the defendant which involved the use or attempted use of force or violenceor the express or implied threat to use force or violence. 56. The factors identified by Clark as inapplicable include: (e) Whether or not the victim was a participant in the 250 CALJIC No.8.85 as providedto thejury at the penalty phaseretrial in violation of the Eighth Amendment. (AOB 714-717.) This Court has previously held that a trial court is not required to delete inapplicable aggravating factors where, as here, the penalty phase jury was properly instructed to consider and be guidedbyall the factors “ ‘if applicable,’ ” since “we assumethejury properly followedthe instruction and concludedthat mitigating factors not supported by 999evidence were simply not ‘applicable.”” (People v. Maury, supra, 30 Cal.4th at p. 439; accord People v. Montiel (1993) 5 Cal.4th 877, 937, fn. 31.) Further, in this case, the jury, at Clark’s request, was instructed that “(t]he absence of a statutory mitigating factor does not constitute an aggravating factor” (13 CT 4856), rendering it even more unlikely that the jury could have given any undue consideration to inapplicable mitigating factors. There was noerror. C. The Trial Court Was Not Required To Instruct The Jury Which Factors Were Aggravating And Which Factors Were Mitigating Clark contendsthat the trial court’s failure to inform the jury which factors in CALJIC No. 8.85 were aggravating and which were mitigating rendered his death sentence unconstitutionally arbitrary and inconsistent. As discussed in Arguments LXVI(C) and LXIV(C),ante, there is no constitutional requirementthatthe trial court so instruct the jury at the penalty phase. (People v. Brown, supra, 33 Cal.4th at p. 402 [no requirement that the court identify defendant's homicidal conduct or consented to the homicidalact. (f) Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moraljustification or extenuation for his conduct. (g) Whether or not the defendant acted under extreme duress or under the substantial domination of another person. (CALJIC No.8.85.) 251 whichfactors are aggravating/mitigating or instruct that certain factors can only be considered in mitigation]; see also People v. Vieira, supra, 35 Cal.4th atp. 299; People v. Young, supra, 34 Cal.4th at p. 1226; People v. Espinoza, supra, 3 Cal.4th at p. 827.) D. The Trial Court Was Not Required To Instruct The Jury Not To Consider Non-Statutory Aggravating Factors Clark contendsthatthe trial court improperly failed to instruct the jury that it could not consider non-statutory aggravating factors in arriving at its penalty determination. (AOB 719-720.) This Court rejected the identical argument in People v. Yeoman, supra, 31 Cal.4th at p. 156, explaining, Nothing in the instructions given by the court suggested the jury might properly consider nonstatutory aggravating factors. In fact, the court strongly suggested the contrary by directing the jury to “consider, and take into account and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed.” (CALJIC No. 8.88.) CALJIC No. 8.85 freed the jury to consider nonstatutory mitigating factors by explaining section 190.3, factor (k), but no instruction did the same for aggravating factors. (See also People v. Taylor (2001) 26 Cal.4th 1155, 1179.) The jury here received the sameinstructions found by this Court to be proper in Yeoman. (13 CT 4856, 4867.) Further, there is nothing in the record to indicate that the prosecutor argued non-statutory aggravating factors to the jury as a basis for imposing a death sentence. Clark’s claim is without merit. 252 E. Penal Code Section 190.3 Factors (d) And (h) Are Not Unconstitutionally Vague Clark challenges two ofthe aggravating factors set forth in Penal Code section 190.3 and CALJIC No. 8.85, factors (d) and (h),= as being unconstitutionally vague in violation of the Eighth and Fourteenth Amendments. (AOB 720-725.) Clark’s claim has previously been rejected by this Court. (People v. Taylor, supra, 26 Cal.4th at p. 1179; People v. Lucero (2000) 23 Cal.4th 692, 727-728.) Clark provides no basis for reaching a different conclusion. F. The Aggravating Factors Set Forth In Penal Code Section 190.3 And CALJIC No. 8.85 Are Not Unconstitutionally Vague Clark contends that all of the aggravating factors identified in Penal Codesection 190.3 and CALJIC No.8.85 are unconstitutionally vague. (AOB 725-727.) This Court has previously rejected this argument and should do so here. (People v. Horning (2004) 34 Cal.4th 871, 913; People v. Cole, supra, 33 Cal4th at p. 1234.) 57. Penal Code section 190.3 pertinently provides that a jury determining penalty may consider: (d) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance. (h) Whetheror notat the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements oflaw was impaired as a result ofmental disease or defect, or the affects of intoxication. 253 G. Due Process Does Not Require That Aggravating Factors Be Found True Beyond A Reasonable Doubt Clark contends that Penal Codesection 190.3 and CALJIC No.8.85 violate due process by not requiring the jury’s penalty phase determination to be made by proof beyond a reasonable doubt. (AOB 726-729.) As discussed in Argument LXV(C), ante, this Court has previously rejected the identical argument and should do so here. (People v. Prieto, supra, 30 Cal.4th at pp. 262-263; People v. Snow, supra, 30 Cal.4th at p. 126; People v. Anderson, supra, 25 Cal4th at pp. 589-590.) H. The Eighth And Fourteenth Amendments Do Not Require Intercase Proportionality Review Of Death Sentences Clark contends that California’s death penalty statute violates the Eighth and Fourteenth Amendments by not requiring intercase proportionality review. (AOB 730-733.) As discussed in Argument LXV(C), ante, this Court has previously rejected this claim and should do so here. (People v. Brown, supra, 33 Cal.4th at p. 402; People v. Prieto, supra, 30 Cal.4th at p. 276.) I. The Eighth And Fourteenth Amendments Do Not Require California Afford Capital Defendants With The Same Procedural Safeguards As Other Jurisdictions Clark contendsthat California’s failure to provide certain penalty phase procedural safeguards commonly employedin other jurisdictions violates the Eighth and Fourteenth Amendments. (AOB 733-735.) These procedural safeguards include: 1) written findings as to the aggravating factors found bythe jury; 2) proofbeyond a reasonable doubt ofthe aggravating factors; 3) jury unanimity on the aggravating factors; 4) a finding that aggravating factors outweigh mitigating factors beyond a reasonable doubt; 5) a finding that death is the appropriate punishment beyond a reasonable 254 doubt; 6) a procedure to enable the reviewing court to meaningfully review the sentencer’s decision; and 7) definition of which specified relevant factors are aggravating, and which are mitigating. (AOB 734, fn. 82.) Asdiscussed in Argument LXV(C), ante, whichis incorporated herein by reference, this Court has consistently rejected these claims and should do so here. J. California’s Death Penalty Statute Adequately Narrows The Class Of Persons Eligible For The Death Penalty Clark contends that California’s death penalty statute is unconstitutional becauseit fails to adequately narrow the class of personseligible for the death penalty. (AOB 735-738.) As discussed in Argument LXV(A), ante, whichis incorporated herein by reference, Clark’s claim is without merit. K. The Lack Of Statewide Capital Case Charging Guidelines Does Not Permit Arbitrary Imposition Of The Death Penalty Clark contends the lack of statewide standards to guide prosecutors in charging capital cases allows the death penalty to be imposedarbitrarily in violation of the Eighth and Fourteenth Amendments. As will be discussed more fully in Argument LXX,post, this Court has previously rejected this claim and should do so here. (People v. Brown, supra, 33 Cal.4th at p. 403; People v. Ochoa, supra, 26 Cal.4th at p. 462; People v. Ray, supra, 13 Cal.4th at p. 359.) 255 LXVIL. PENAL CODE SECTION 190.3 FACTORS (A), (B), AND (D) ARE NOT UNCONSTITUTIONALLY VAGUE Clark attacks three of the aggravating factors set forth in Penal Code section 190.3, factors (a), (b), and (i),as being unconstitutionally vague. (AOB 743-755.) As discussed in Argument LXVI(A), ante, both the United States Supreme Court and this Court have previously rejected a vagueness challenge to factors (a), (b), and (1). (People v. Williams, supra, 16 Cal.Ath at pp. 267-268, citing Tuilaepa v. California, supra, 512 U.S. 967 [114 S.Ct. 2630, 129 L.Ed.2d 750] [factors (a), (b), and (i) not unconstitutionally vague ec 6 6because they possess common-sense core of meaning . . . that criminal juries should be capable ofunderstanding” ’”].) Clark’s claim is without merit. 58. Penal Code section 190.3 pertinently provides that a jury determining penalty may consider: (a) The circumstancesofthe crime ofwhich the defendant was convictedin the present proceeding andthe existence ofany special circumstances foundto be true pursuant to Section 190.1. (b) The presence or absence of criminalactivity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence. q..4 (i) The age of the defendantat the time of the crime. 256 LXVIII. CLARK’S SENTENCE OF DEATH BASED ON HIS PIVOTAL PARTICIPATION IN, AND ULTIMATE RESPONSIBILITY FOR, THE MURDERS OF BOTH KATHY LEE AND ARDELL WILLIAMS DOES NOT SHOCK THE CONSCIENCE OR OFFEND FUNDAMENTAL NOTIONS OF HUMAN DIGNITY AND IS NOT DISPROPORTIONATE TO HIS INDIVIDUAL CULPABILITY Clark contends that his death sentence was disproportionate to his individual culpability and that of his accomplices under intracase proportionality review. (AOB 756-762.) However, Clark’s sentence of death based onhis pivotal participation in, and ultimate responsibility for, the murders ofboth Kathy Lee and Ardell Williams does not shock the conscience or offend fundamental notions of human dignity and is not disproportionate to his individual culpability. Although a capital defendant has no federal constitutional right to intercase proportionality review ofhis death sentence,article I, section 17 ofthe California Constitution entitles such a defendant, on request, to intracase proportionality review by this Court “to determine whether the death penalty is grossly disproportionate to his personal culpability.” (People v. Anderson, supra, 25 Cal.4th at p. 602.) When conducting intracase proportionality review, this Court must, “examine the circumstances of the offense, including its motive, the extent ofthe defendant’s involvementin the crime, the manner in which the crime was committed, and the consequencesofthe defendant's acts. The court must also consider the personal characteristics of the defendant, including age, prior criminality, and mental capabilities. [Citation.]: If the court concludesthat the penalty imposedis ‘grossly disproportionate to the defendant's individual culpability’ [citation], or, stated another way, that the punishment ‘ “ ‘shocks the conscience and offends fundamental notions of human dignity’ ” ’ [citation], the court must invalidate the sentence as unconstitutional.” [Citation.] 257 (People v. Maury, supra, 30 Cal.4th at p. 441.) However, in conducting intracase proportionality review, this Court does not consider the guilt, culpability, or punishmentofthird parties. (/d. at pp. 441-442.) Clark’s death sentence is not disproportionate to his individual culpability in the murders of Kathy Lee and Ardell Williams andhis sentence certainly does not shock the conscience or offend fundamental notions of human dignity. While Clark seeks to minimizehisparticipation in the murders ofKathy Lee and Ardell Williams,specifically noting that he did not personally shooteither victim, he ignoresthe fact that Clark wasthe pivotal participant in both crimes. Clark very meticulously planned the burglary of the Comp USA store that led to Kathy Lee’s murder. Clark arranged Ardell Williams’s murder while in countyjail to prevent her from testifying against him. Absent Clark’s | involvement, both victims would be alive today. There is nothing disproportionate about his punishment. (See People v. Allen, supra, 42 Cal.3d at p. 1286 [defendant who arranged murders of former witnesses while incarcerated could not “credibly assert that the punishment imposed [was] disproportionate to his individual culpability.”].) LXIX. THE TRIAL COURT WAS NOT REQUIRED TO DEFINE THE TERMS “DEATH” AND “LIFE WITHOUT THE POSSIBILITY OF PAROLE” FOR THE JURY) Clark contends thatthe trial court had a sua sponte obligation to define the terms “life without possibility of parole” and “death” as used in CALJIC No. 8.84 because of a “common perception that jurors do not believe that personssentencedto die will be executed orthat persons sentencedto serve life without parole will spend their entire lives in prison.” (AOB 763-769.) This Court has previously rejected the identical claim. (People v. Holt, supra, 15 258 Cal.4th at pp. 687-689.) As this Court noted in Holt, An instruction, such as that proposed by defendant, advising thejury that a defendant could never be released on parole if sentencedto life withoutthe possibility ofparole would be erroneous,since gubernatorial pardon and/or commutation ofthe sentence is permitted (Cal. Const.,art. V,§ 8; Pen.Code, § 4800) andit is always possible that the present death penalty law or the sentencing provisions ofthe law might be invalidated in the future. [Citations.] An instruction accurately advising the jury that the “real consequences”ofa sentenceoflife without possibility of parole include those possibilities might prejudice a capital defendant. Were a jury advised of the possibility of release notwithstanding the “without possibility of parole” aspect of the life term, it might opt instead for death. Defendant’s observation thatjurors sometimes ask whether a term of life without possibility of parole means whatit says or if the defendant may ever be before a parole board or be released [citations], and his argumentthat the jury should be told that under a life without parole sentence the defendant cannot be granted parole and the sentence will result in actual imprisonmentforthe rest ofthe defendant's life confirms that his claim is not directed to the technical meaning of the term. Instead, his argumentis actually that, in light ofjuror skepticism that a sentence oflife without parole will be carried out as imposed, the court must instruct thejury sua spontethat ifthe defendantis sentenced to that term he will never be released. It is not an argumentthat the term has a technical meaning, but an argument that the court must instruct even though the meaning is perfectly clear that if the law changes in the future, or if the Governor exercises the constitutional power of commutation or pardon, the sentence might not be carried out as imposed. (The sameistrue of the death penalty, of course.) (People v. Holt, supra, 15 Cal.4th at pp. 688-689.) There was noerror. 259 LXX. THE EQUAL PROTECTION CLAUSE OF THE UNITED STATES CONSTITUTION DOES NOT REQUIRE UNIFORM CHARGING GUIDELINES IN CAPITAL CASES Clark contendsthat California’s death penalty statute violates the equal protection guarantee of the United States Constitution by failing to provide uniform standards to guide prosecutors in their decisions whether to seek the death penalty. (AOB 770-805.) This claim is without merit. With respect to his claim that California’s death penalty statute violates the federal Constitution’s equal protection guarantee, Clark argues that equal protection requires California to provide uniform standards to guide prosecutors in their decisions whether to seek the death penalty. (AOB 773-805.) This Court has previously held that California’s death penalty law is not “constitutionally deficient because the prosecutorretains discretion whether or not to seek the death penalty.” (People v. Brown,supra, 33 Cal.4th at p. 403; People v. Ochoa, supra, 26 Cal.4th at p. 462; People v. Ray, supra, 13 Cal.4th at p. 359.) Without addressing the prior decisions of this Court rejecting his argument, Clark contends the United States Supreme Court, in deciding Bush v. Gore (2000) 531 U.S. 98 [121 S.Ct. 525, 148 L.Ed.2d 388], articulated a new standard of equal protection analysis whereby a death penalty statute must establish uniform charging guidelines for prosecutors to avoid arbitrary imposition of the death penalty in order to pass constitutional muster. In the first instance, Bush v. Gore involved a constitutional challenge to Florida's voting procedures. (/d. at p. 103.) The case did not involve the constitutionalrights of capital defendants. “ “It is axiomatic that cases are not authority for propositions not considered.’ “ (People v. Avila, supra, 38 Cal.4th at p. 567.) The question ofthe equal protection rights of capital defendants was 260 not before the High Court in Bush v. Gore and the court’s decision in that case cannot be construed as authority for a proposition not considered by the court in the case. (See Ibid.) Moreover,judicially or legislatively imposed “guidelines” limiting the exercise of a prosecutor’s charging decisions in a capital case would violate separation ofpowers principles. “(T]he prosecuting authorities, exercising executive functions, ordinarily have the sole discretion to determine whom to charge with public offenses and what charges to bring. ([Citations.] This prosecutorial discretion to choose, for each particular case, the actual charges from among those potentially available arises from ‘ “the complex considerations necessary for the effective and efficient administration of law enforcement.” ’ [Citations.] The prosecution's authority in this regard is founded, amongother things, on the principle of separation of powers, and generally is not subject to supervision by the judicial branch. [Citations.]” [Citation.] (Manduley v. Superior Court (2002) 27 Cal.4th 537, 552.) Accordingly, as this Court has previously noted, prosecutorial discretion in charging death penalty cases does not violate equal protection principles and to limit that discretion would violate the constitutional separation of powers. Further, as discussed in Argument LXV(B), ante, California’s death penalty law is notarbitrarily and capriciously applied once charged, thereby protecting the equal protection rights of capital defendants. Clark’s claim is without merit. LXXI. CALIFORNIA’S DEATH PENALTY LAW IS NOT ARBITRARY IN VIOLATION OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS Clark contendsthat California’s death penalty law violates international law because it is imposed arbitrarily as that term is defined under the International Covenanton Civil and Political Rights (ICCPR). (AOB 806-810.) 261 However, this Court has rejected challenges based on alleged violations ofthe ICCPRand should doso here. Initially, as discussed in Argument LXV(E), ante, Clark lacks standing to challenge California’s death penalty statute as violating international law. (See Committee of U.S. Citizens Living in Nicaragua v. Reagan, supra, 859 F.2d at p. 937; see also People v. Brown, supra, 33 Cal.4th at p. 403, citing Hanoch Tel-Oren v. Libyan Arab Republic, supra, 517 F.Supp. at pp. 545-547.) Accordingly, this Court should reject Clark’s contention as he lacks standing to challenge California law on international law grounds. Further, this Court has previously rejected the claim that California’s death penalty law violates the ICCPR. (People v. Brown, supra, 33 Cal.4th at pp. 403-404; see also People v. Wilson, supra, 36 Cal.Ath at p. 362.) Asthis Court noted in Brown, Although the United Statesis a signatory [to the ICCPR],it signed the treaty on the express condition “[t]hat the United States reserves the right, subject to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishmentfor crimes committed by persons below eighteen years ofage.” (138 Cong. Rec. S4781-01 (Apr. 2, 1992); see Comment, The Abolition of the Death Penalty: Does “Abolition” Really Mean What You Think It Means? (1999) 6 Ind.J. Global Legal Studies 721, 726 & fn. 33.) Given states’sovereignty in such matters within constitutional limitations, our federal system of governmenteffectively compelled such a reservation. (Ibid.) Clark fails to address this Court’s prior decision in Brown. In short, Clark hasno standing to invoke international law asa basis for challenging his judgmentofdeath and,in any event, California’s death penalty law doesnot violate the ICCPR. Accordingly, Clark’s claim should fail. 262 LXXII. CALIFORNIA’S DEATH-QUALIFICATION PROCEDURES IN JURY SELECTION DOES NOT RESULT IN A DEATH-ORIENTED JURY IN VIOLATION OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS Clark contends that California’s death penalty law violates Article 14 of the ICCPR because the death-qualification proceduresutilized in jury selection “unfairly skewed the jury-pool to conviction-prone and death-prone jurors.” (AOB 811-814.) He is mistaken. Initially, as discussed in Argument LXV(E), ante, Clark lacks standing to challenge California’s death penalty statute as violating international law. (See Committee of U.S. Citizens Living in Nicaragua v. Reagan, supra, 859 F.2d at p. 937; see also People v. Brown, supra, 33 Cal.4th at p. 403, citing Hanoch Tel-Oren v. Libyan Arab Republic, supra, 517 F.Supp. at pp. 545-547.) Accordingly, this Court should reject Clark’s contention as he lacks standing to challenge California law on international law grounds. Further, as discussed in Argument LXXI,ante, this Court has previously rejected the claim that California’s death penalty law violates the ICCPR. (People v. Brown, supra, 33 Cal.4th at pp. 403-404; see also People v. Wilson, supra, 36 Cal.4th at p. 362.) Clark utterly fails to address this Court’s prior decision in Brown. Additionally, as discussed in Argument XIX,ante, the jurors in both the guilt and penalty phases did not exhibit an impermissible pro-death bias. Further, this Court has previously rejected “the suggestion that the death qualification process is impermissible because it results in a death-oriented jury.” (People v. Clark (1990) 50 Cal.3d 583, 597.) Clark’s claim is without merit and should be rejected. 263 LXxIl. SINCE CALIFORNIA’S DEATH PENALTY LAW DOES NOT VIOLATE THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS AND INTERNATIONAL LAW WILL ULTIMATELY HAVE NO BEARING ON THE INSTANT STATE COURT PROCEEDINGS, A STAY TO SEEK INTERNATIONAL REVIEW IS UNWARRANTED Clark contendsthat if this Court denies his claims, he should receive a stay of execution to permit international review ofalleged violations of the ICCPR. In the alternative, Clark asks for a determination by this Court specifying its refusal to grant this request so that he may seek international review now. (AOB 815-818.) Clark’s claim should be rejected, as he is not legally entitled to a stay to permit review by an internationaltribunal. Initially, as discussed in Argument LXV(E), ante, Clark lacks standing to challenge California’s death penalty statute as violating international law. (See Committee of U.S. Citizens Living in Nicaragua v. Reagan, supra, 859 F.2d at p. 937; see also People v. Brown, supra, 33 Cal.4th at p. 403, citing Hanoch Tel-Oren v. Libyan Arab Republic, supra, 517 FSupp.at pp. 545-547.) Accordingly, this Court should reject Clark’s contention as he lacks standing to challenge California law on international law grounds. Further, as discussed in Argument LXXI, ante, this Court has previously rejected the claim that California’s death penalty law violates the ICCPR. (People v. Brown, supra, 33 CalAth at pp. 403-404; see also People v. Wilson, supra, 36 Cal4th at p. 362.) Clark fails to address this Court’s prior decision in Brown. Since international law will ultimately have no bearing on the instant state court proceedings, a stay to seek international review is unwarranted. (See In re Hicks (11th Cir. 2004) 375 F.3d 1237, 1241, fn. 2.) Clark does not have a judicially enforceable private right for relief under any internationaltreaties. 264 (Cf. Garza v. Lapin (7th Cir. 2001) 253 F.3d 918, 924.) Thus, Clark’s claim should be rejected. LXXIV. CLARK’S TRIAL DID NOT VIOLATE INTERNATIONAL LAW Clark claims that various aspects of his trial and penalty phase determinations violated customary international law andrelated international legal instruments, including the Universal Declaration of Human Rights, the ICCPR,the American Declaration of the Rights and Duties of Man, and the International Convention Against All Forms ofRacial Discrimination. (AOB 819-840.) However, this Court has previously rejected the identical claim and should doso here. Initially, as discussed in Argument LXV(E), ante, Clark lacks standing to challenge California’s death penalty procedures as violating international law. (See Committee of U.S. Citizens Living in Nicaragua v. Reagan, supra, 859 F.2d at p. 937; see also People v. Brown, supra, 33 Cal.4th at p. 403,citing HanochTel-Oren v. Libyan Arab Republic, supra, 517 F.Supp.at pp. 545-547.) Accordingly, this Court should reject Clark’s contention as he lacks standing to challenge the application of California law on international law grounds. This Court has previously rejected the identical claim in People v. Hillhouse, supra, 27 Cal.4th at p. 511. As in Hillhouse, Clark here “ ‘has failed to establish the premise that his trial involved violations of state and federal constitutional law....’ “ or that “ ‘his rights to due process of law and to be free from invidious discrimination on the basis of race have been violated.’” (See Jbid.) Clark fails to address Hillhouse. Thus, this Court should reject Clark’s claim. 265 LXXV. CLARK’S TRIAL WAS NOT CLOSELY BALANCED AT EITHER THE GUILT AND PENALTY PHASES AND THERE WERE NO ERRORS, INDIVIDUALLY OR CUMULATIVELY WARRANTING A NEW TRIAL Clark contends that both his guilt and penalty phase trials were so closely balanced that the cumulative effect of the errors he alleges occurred throughout the proceedings requires reversal of the judgment and a new trial. (AOB 841-843.) However, as discussed previously, the circumstantial evidence against Clark was overwhelming andthere was nothing “close” about his case. Further, the record simply does not support his characterization of the case against him as being “created rather than discovered.” (AOB 841.) Asdiscussed in Arguments I through LXXIV,ante, Clark hasfailed to establish errorin his trial. Further, even assuming error occurred, as discussed previously, any errors were harmless. This case wastried with skill and professionalism by both sides, before ajudge meticulousin her fairness. Clark has simply failed to show cumulative prejudicial error. (See People v. Seaton (2001) 26 Cal.4th 598, 675, 691-692 [few errors identified were minorandeither individually or cumulatively would not alter the outcomeofthe trial]; People v. Catlin (2001) 26 Cal.4th 81, 180 [same]; People v. Cudjo, supra, 6 Cal.4th at p. 630 [no cumulative error when the few errors which occurred during the trial were inconsequential].) Whetherconsidered individually or for their cumulative effect, none of the errors alleged affected the process or accrued to Clark’s detriment. (People v. Sanders, supra, \\ Cal.4th at p. 565; People v. Cudjo, supra, 6 Cal.4th at p. 637.) As this Court has noted, “[Clark] was entitled to a fair trial but not a perfect one.” (People v. Cunningham, supra, 25 Cal.4th at p. 1009.) Clark’s trial was more than fair. 266 LXXVI. CALIFORNIA’S DEATH PENALTY LAW DOES NOT VIOLATE THE UNITED STATES CONSTITUTION BECAUSE ANY DELAY INHERENT IN THE APPELLATE PROCESS SERVES TO SAFEGUARD CLARK’S CONSTITUTIONAL RIGHTS AND IS NOT CRUEL AND UNUSUAL PUNISHMENT Clark contends that the lengthy delay between imposition of sentence and execution violates the Eighth and Fourteenth Amendments of the United States Constitution because it constitutes cruel and unusual punishment. (AOB 844-849.) However, this Court has consistently found that any delay inherent in the appellate process serves to safeguard a defendant’s constitutional rights and should therefore reject Clark’s contention. First, Clark relies on the memorandum opinion of Justice Stevens in Lackey v. Texas (1995) 514 U.S. 1045 [115 S.Ct. 1421, 131 L.Ed.2d 304] (mem. opn. of Stevens, J., on denial of cert.), setting forth his view that Lackey’s claim that the lengthy delay between the imposition of his death sentence and his execution violated the Eighth Amendment’s prohibition against cruel and unusual punishment was a novel and undecidedclaim worthy of consideration by the United States Supreme Court. (AOB 845-849.) However, it is important to note that certiorari was denied in that case andthat only Justice Breyer joined Justice Stevens in his opinion. Accordingly, the issue remains an open question unaddressed by the United States Supreme Court and Clark’s reliance on Lackey does not support his position. Further, this Court has repeatedly rejected the identical constitutional challenge to sentences of death. (People v. Brown, supra, 33 Cal.4th at p. 404; People v. Ochoa, supra, 26 Cal.4th at pp. 462-463; People v. Anderson, supra, 25 Cal.4th at p. 606; People v. Massie (1998) 19 Cal.4th 550, 574; People v. Hill (1992) 3 Cal.4th 959, 1016.) As this Court observed in Anderson,“the automatic appeal process following judgments of death is a constitutional 267 safeguard, not a constitutional defect.” (People v. Anderson, supra, 25 Cal.4th at p. 606.) Similarly, this Court has previously held that execution notwithstanding the delay inherent in the appellate process furthers both the deterrent and retributive purposes ofpunishment. (People v. Ochoa, supra, 26 Cal.4th at p. 463.) Clark fails to address the manyprior decisionsofthis Court rejecting this contention. Asthe numerousprior decisionsofthis Court demonstrate, California’s death penalty law doesnot violate the Eighth and Fourteenth Amendments of the United States Constitution because any delay inherent in the appellate process serves to safeguard Clark’s constitutional rights and is not cruel and unusual punishment. Accordingly, Clark’s claim should fail. LXXVII. CLARK’S CHALLENGE TO THE METHOD OF EXECUTION DOES NOT AFFECT THE VALIDITY OF HIS SENTENCE AND, REGARDLESS, CALIFORNIA’S USE OF LETHAL INJECTION AS A METHOD OF EXECUTION DOES NOT VIOLATE THE EIGHTH AND FOURTEENTH AMENDMENTS Clark contends that California’s use of lethal injection as a means of execution violates the Eighth and Fourteenth Amendments ofthe United States Constitution becauselethal injection constitutes cruel and unusual punishment. (AOB 850-864.) However, this Court has consistently rejected the identical claim and should doso here. First, Clark’s contention that execution by meansoflethal injection violates the Eighth and Fourteenth Amendments should be summarily rejected by this Court because “[i]t bears solely on the legality of the execution of the sentence and noton the validity of the sentenceitself. [Citation.]” (People v. Bradford (1997)14 Cal.4th 1005, 1059.) However, even assumingthis Court 268 shouldentertain the merits ofthe claim, California’s use of lethal injection as a meansofexecution doesnotviolate the Eighth and Fourteenth Amendments. Penal Codesection 3604, subdivision (a), provides: The punishmentofdeath shall be inflicted by the administration of a lethal gas or by an intravenousinjection of a substance or substances in a lethal quantity sufficient to cause death, by standards established underthe direction of the Department of Corrections.’ Clark contends that execution bylethal injection is cruel and unusual punishment. Alluding to matters outside the record, Clark describes instances in which there were complications or mishaps in the use of lethal injections. (AOB 852-862.) In rejecting a similar claim, the Ninth Circuit concluded, ‘ “(t]he risk of accident cannot and need not be eliminated from the execution processin orderto survive constitutional review.’ ”” (LaGrand v. Stewart (9th Cir. 1998) 133 F.3d 1264-1265, quoting Campbell v. Wood (9th Cir. 1994) 18 F.3d 662, 687; accord, Cooper v. Rimmer (9th Cir. 2004) 379 F.3d 1029, 1033.) In fact, a punishmentis not, cruel and unusual simply becauseit causes death, or because there may be somepain associated with death. “Punishments are cruel when they involve torture or a lingering death... .” [Citation.] As used in the Constitution, “cruel” implies “something inhuman and barbarous, something more than the mere extinguishmentoflife.” [Citation.] “The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary 59. Clark notes that California’s use of lethal gas as a means of execution was foundby the Ninth Circuit to violate the Eighth and Fourteenth Amendments in Fierro v. Gomez (9th Cir. 1996) 77 F.3d 301. (AOB 850.) However, the United States Supreme Court vacated the judgmentin Fierro and remanded the case to the Ninth Circuit to consider the amendmentto Penal Code section 3604 making lethal injection the default method of execution in California. (Fierro v. Gomez (1996) 519 U.S. 918 [117 S.Ct. 285, 136 L.Ed.2d 204].) On remand, the Ninth Circuit found the plaintiffs lacked standing to challenge the constitutionality of lethal gas as a method of execution since, under Penal Code section 3604, the plaintiffs were subject to execution by lethal injection. (Fierro v. Terhune (9th Cir. 1998) 147 F.3d 1158, 1160.) 269 suffering involved in any method employed to extinguish life humanely.” [Citation.] (Campbell v. Wood, supra, 18 F.3dat p. 683.) In addition to the Ninth Circuit, this Court has repeatedly rejected the identical constitutional challenge to California’s use of lethal injection as a method ofexecution. (People v. Carter (2005) 36 Cal.4th 1114, 1213; People v. Young, supra, 34 Cal.4th at p.1234; People v. Samayoa (1997) 15 Cal.4th 795, 864.) Clark fails to address the manyprior decisions of this Court on the subject. In short, Clark’s claim should be summarily rejected becauseit bears on the validity ofthe execution ofsentence and notonthe validity ofthe sentence itself. In any event, California’s death penalty law doesnot violate the Eighth and Fourteenth Amendments ofthe United States Constitution becausethe use of lethal injection as a meansofexecutionis not cruel and unusual punishment. Accordingly, Clark’s claim should fail. LXXVIII. EVEN ASSUMING THERE WASERRORIN CLARK’S TRIAL, ANY ERROR WAS HARMLESS EVEN WHEN CONSIDERED CUMULATIVELY Similar to Argument LXXV,ante, Clark contends the cumulative effect oferrors in the guilt and penalty phasesofhis trial requires reversal ofthe death judgment. (AOB 865-871.) However, as discussed in Arguments I through LXXVII, ante, Clark has failed to establish error in his trial. Further, even assuming error occurred, as discussed above, any errors were harmless. This case wastried with skill and professionalism by both sides, before | ajudge meticulousin her fairness. Clark has simply failed to show cumulative prejudicial error. (See People v. Seaton, supra, 26 Cal.4th at pp. 691-692 [few errors identified were minorandeither individually or cumulatively would not 270 alter the outcome ofthe trial]; People v. Catlin, supra, 26 Cal.4th at p. 180 [same]; People v. Cudjo, supra, 6 Cal.4th at p. 630 [no cumulative error when the few errors which occurred during the trial were inconsequential].) Whether considered individually or for their cumulative effect, none of the errors alleged did not affect the process or accrue to Clark’s detriment. (People v. Sanders, supra, 11 Cal.4th at p. 565; People v. Cudjo, supra, 6 Cal.4th at p. 637.) As this Court has noted, “[Clark] wasentitled to a fair trial but not a perfect one.” (People v. Cunningham, supra, 25 Cal.Ath at p. 1009.) Clark’s trial was more than fair. 271 CONCLUSION For the foregoing reasons, Respondent respectfully asks that the judgmentas to both guilty and penalty be affirmed. Dated: October 11, 2006 Respectfully submitted, BILL LOCKYER Attorney General ofthe State of California MARY JO GRAVES Chief Assistant Attomey General GARY W. SCHONS Senior Assistant Attorney General HOLLY D. WILKENS Deputy Attorney General PL— DANIELST Deputy Attorney General Attorneys for Respondent 272 CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S BRIEFusesa 13 point Times New Roman font and contains 83,024 words. Dated: October 11, 2006 Respectfully submitted, BILL LOCKYER Attorney General of the State of California DANIEL ROGERS wy Deputy Attorney General Attomeys for Respondent DECLARATION OF SERVICEBY U.S. MAIL Case Name: People v. William Clinton Clark ‘ No.: 8066940 I declare: I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar at which member's direction this service is made. I am 18 years ofage or older and nota party to this matter. I am familiar with the businesspractice at the Office of the Attorney Generalfor collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office ofthe Attorney General is deposited with the United States Postal Service that same day in the ordinary course ofbusiness. On October 16, 2006, I served the attached respondent’s brief by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 110 West "A" Street, Suite 1100, San Diego, California 92101, addressed as follows: Peter Giannini Alan Slater Attorney at Law Chief Executive Officer 11755 Wilshire Blvd. 15"floor 700 Civic Center Dr. West Los Angeles CA 90025 Santa Ana CA 92701 | (2 copies) (2 copies) | Tony Rackauckas California Appellate Project District Attorney 101 Second Street Suite 600 401 Civic Center Dr. West San Francisco CA 94105-3672 Santa Ana CA 92701 I declare under penalty ofperjury underthe lawsofthe State of California the foregoingis true and correct and that this declaration was executed on October 16, 2006, at San Diego, California. | , , KimberlyWickenhagen twit. YIAer ‘ Declarant Signature g
