PEOPLE v. CAPISTRANO

Respondent’s Brief

Cal.August 16, 2007

Supreme CourtCopy Fiecouer | IN THE SUPREME COURT OF THE STATE OF CALIFORNIA AUG | THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, 5067394 Vv. JOHN LEO CAPISTRANO, CAPITAL CASE Defendant and Appellant. Los Angeles County Superior Court No. KA034540 The Honorable Andrew C. Kauffman, Judge RESPONDENT?’S BRIEF EDMUNDG. BROWN JR. Attorney General ofthe State of California DANER. GILLETTE Chief Assistant Attorney General PAMELA C. HAMANAKA Senior Assistant Attorney General JOHN R. GOREY Deputy Attorney General MARGARETE. MAXWELL Supervising Deputy Attorney General State Bar No. 169830 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 897-2282 Fax: (213) 897-6496 Email: Margaret.Maxwell@doj.ca.gov Attorneys for Respondent eAL Pen TABLE OF CONTENTS Page STATEMENTOF THE CASE —— 1 STATEMENT OF FACTS _ . 4 I. Guilt Phase Evidence | . 4 A. Prosecution Evidence 4 1. Murder Of Koen Witters On December9, 1995 (counts 1-3) 4 2. Crimes Against J.S. And E.G. On December15, 1995 (counts 4-11) 8 a. Victims’ Account Of The Crimes 8 b. Victims’ Post-offense Identifications And Statement 14 c. Appellant’s Refusal To Participate In A Court- Ordered Lineup 15 d. Appellant’s Conduct In Response To Court- ordered Blood Samples 16 e. DNATesting Was Consistent With Appellant 17 3. Robbery OfRuth And Patrick Weir On December23, 1995 (Counts 12-14) 20 4. Drebert And Vera Possess Ski Masks And Gloves When Stopped By Police On January 6, 1996 23 5. Attempted Murder OfMichael Martinez On January 19, 1996 (Counts 15 and 16) 24 TABLE OF CONTENTS(continued) a. Michael Martinez’s Association With Amy Benson, And Thereby Appellant b. Detention Of Pritchard On January 16, 1996 Page 24 25 c. Martinez Is Ambushed By Appellant, Pritchard, Drebert And Vera In His Apartment On January 19, 1996 26 d. Discovery OfA Gravely Injured Martinez By His Neighbors e. Police And Medical Response f. Martinez Recovers And Identifies His Attackers g. Recovery Of Martinez’s Vehicle Arrest Of Appellant, Drebert, Pritchard, And Vera At Gladys Santos’s Apartment On January 19, 1996 Gladys Santos Inculpates Appellant In All Of The Crimes a. Events Of January 19, 1996 b. Stolen Property From The J.S./E.G. Robbery c. Stolen Property From The Weir Robbery e. Appellant’s Admissions To Santos Concerning The Weir Robbery f. Santos’s Revelation Of Appellant’s Admissions To Police li 28 29 31 32 32 35 36 36 37 39 40 TABLE OF CONTENTS(continued) Page B. Defense Evidence 42 II. Penalty Phase Evidence A. Prosecution Evidence 44 l. Attack On Los Angeles County Jail Inmate Victor Rodela On June 4, 1994 45 2. Attack On Los Angeles County Jail Inmate Ricky Crayton On October4, 1996 46 3. Appellant’s Threat Against Drebert On December 20,1996 47 4. Attempted Murder OfMen’s Central Jail Inmate Mauricio Gonzalez On February 18, 1997 47 5. Attack On Los Angeles County Jail Inmate Raymond Gonzalez On June 23, 1997 51 B. Defense Evidence 52 ARGUMENT 54 I. APPELLANT WAIVED HIS CLAIM. CONCERNING THE ADEQUACY OF THE INITIAL DEATH-QUALIFICATION QUESTIONING AND,IN ANY EVENT,THE TRIAL COURT PROPERLY EXCUSED FOR CAUSE 22 PROSPECTIVE JURORS WHO UNEQUIVOCALLY STATEDTHEYWOULD BE UNABLE TO VOTE FOR A PUNISHMENT OF DEATH REGARDLESS OF THE EVIDENCE 54 A. Summary Of Jury Selection Proceedings | 54 ili hesaliasRiapanGa CAENCCRIRASEgrtaSen ge eR ene gat thd mnt BREE neh OSEAN andar Il. TABLE OF CONTENTS (continued) Page 1. Screening OfThe First Panel Of Jurors 55 2. Screening OfThe Second Panel OfJurors 58 3. Voir Dire Of The First Panel Of Jurors 61 4. Voir Dire OfThe Second Panel Of Jurors 62 5. Screening Of The Third Panel Of Prospective Jurors 63° 6. Screening Of The Fourth Panel Of Prospective Jurors 67 Applicable Law 69 Appellant’s Challenge To The Adequacy Of The Court’s Questioning Has Been Waived 71 The Trial Court Properly Excused For Cause Prospective Jurors Who Unequivocally Stated They Would Be Unable Or Unwilling To Vote ForThe Death Penalty Regardless Of The Evidence Or Circumstances 72 Should This Court Conclude That TheTrial Court Did Not Adequately Question The 22 Prospective Jurors Who Were Excused Based Upon Their Views Of The Death Penalty, The Appropriate RemedyWouldBe To RemandForA New Penalty Phase 77 THE TRIAL COURT PROPERLY EXCUSED PROSPECTIVE JUROR NO. 2361 FOR CAUSE BASED UPONHIS VIEWS OF THE DEATH PENALTY 79 A. The Jury Questionnaire 79 B. Voir Dire Of Prospective Juror No. 2361 82 iV HII. IV. C, TABLE OF CONTENTS(continued) Page The Record Supports TheTrial Court’s Finding Prospective Juror No. 2361's Views Of The Death Penalty Would Substantially Impair The Performance OfHis Duties As A Juror «85 THE TRIAL COURT ACTED WITHIN ITS DISCRETION IN DENYING APPELLANT’S MOTIONFORINDIVIDUALSEQUESTERED DEATH QUALIFICATION VOIR DIRE 88 A. B. Relevant Jury Selection Proceedings 88 Sequestered, Individual Voir Dire Is Not Constitutionally Compelled 90 The Trial Court Was Not Required To Affirmatively Acknowledge Its Discretion To Permit Sequestered Voir Dire 9] The Trial Court Did Not Abuse Its Discretion In Denying Appellant’s Motion For Sequestered Voir Dire 93 THE SELECTIONOFADEATH-QUALIFIED JURY IS CONSTITUTIONAL 95 THE TRIAL COURT’S. EVIDENTIARY RULINGS CONCERNING IMPEACHMENT OF PROSECUTION WITNESS GLADYS SANTOS DIDNOTVIOLATEAPPELLANT’S CONSTITUTIONAL RIGHTS, AND, IN ANY EVENT, ANY ERROR WAS HARMLESS | 97 A. Summary OfRelevant Trial Proceedings 98 B. Applicable Law — | 100 C. The Trial Court Did Not Improperly Restrict Cross- examination Of Santos 101 VI. VII. < eonenesshemniitlepcin abutbccndneennSt Memes ne en oot enactn oo sen gg hamsREMMR RpaSNS Ame AinaNvcaRgeiameN oF eH SH TABLE OF CONTENTS(continued) Page 1. Conduct Underlying Misdemeanor Convictions For _ Petty Theft 101 2. Practice Of Supplying Drugs To Third Parties And Concerns About Losing Child Custody Or Public Assistance Benefits 105 3. Prosecutor’s Contacts With The Department Of Children And Family Services 110 D. Any Error In Restricting Cross-examination Of Gladys Santos Was Harmless THE ELICITATION OF APPELLANT’S CONFESSION TO THE WITTERS MURDER DID NOTVIOLATE THE RULE OFBRUTON v. UNITED STATES (1968) 391 U.S. 123; IN ANY EVENT, ANY ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT A. B. Trial Court’s Ruling Santos’s Testimony Concerning Appellant’s Confession Applicable Law No Bruton Error Occurred 112 116 117 118 120 121 Any ErrorInThe Elicitation OfSantos’s Conversation With Appellant Was Harmless THE TRIAL COURT PROPERLY JOINED ALL CHARGED COUNTS vi 124 127 TABLE OF CONTENTS(continued) Page A. The Applicable Authority And Standard Of Review 127 B. The Court Properly Denied Appellant’s Motion To Sever The J.S., Weir And Martinez Crimes 130 1. Procedural History 130 2. Hearing On The Motion To Sever The Martinez, Weir And J.S./E.G.Incidents 133 3. The Trial Court Did Not Abuse Its Discretion In Declining Severance Of The Weir, J.S/E.G. And Martinez Incidents 134 C. The Court Properly Joined The Charges Ansing From The Murder Of Koen Witters With The J.S./E.G., Weir, And Martinez Crimes 138 1. Denial Of Prosecution’s Motion To Consolidate . KA034540 (Drebert And Appellant) With KA030671 138 2. The Prosecution’s Motion To Sever Pritchard And Vera From Case Number KA030671 And Join KA034540 With The Severed Case Number KA030671 As To Appellant And Drebert 140 3. The Trial Court Did Not Abuse Its Discretion In Joining The Witters Offenses = 143 D. Appellant HasNot Shown Gross Unfairness Resulting From The Joinder 146 vil astaCRESTeae aRRRERSREMDUIRSSUMNEREe ceay te Bg pettedbn VIII. IX. XII. soetreeACNEERReAnyNaettn TABLE OF CONTENTS(continued) NO SUA SPONTE INSTRUCTION MORE SPECIFICALLY RESTRICTING CROSS- ADMISSIBILITY OR CONSIDERATIONOF | -THE EVIDENCE WAS REQUIRED THE GUILT PHASE INSTRUCTIONS DID NOT IMPERMISSIBLY UNDERMINE OR DILUTE THE REQUIREMENT OF PROOF BEYOND A REASONABLE DOUBT A. Circumstantial Evidence Instruction & Other Instructions Page 152 155 155 B. CALJIC No. 2.51 Did Not Inform The Jurors That They Could Find Appellant Guilty Solely On The Basis Of Motive C. CALJIC No.2.15: READING CALJIC NO. 17.41.1 AS PART OF THE GUILT-PHASE INSTRUCTIONS DID NOT VIOLATE APPELLANT?’S SIXTH AND FOURTEENTH AMENDMENTRIGHTS THE TRIAL COURT PROPERLY INSTRUCTED THE JURY THAT APPELLANT COULD BE CONVICTED OF FIRST DEGREE MURDER APPELLANT’S DEATH ELIGIBILITY DID NOTVIOLATE THE EIGHTHAMENDMENT OR INTERNATIONAL LAW viii 159 160 164 166 169 XIII. XIV. XV. | Page CALJIC NO.2.90, AS GIVEN TO THE JURY IN THIS CASE, WAS NOT CONSTITUTIONALLY DEFECTIVE 170 A. CALJIC No. 2.90 Did Not Require That Jurors Articulate Reasonable Doubt 171 B. CALJIC No. 2.90 Correctly Defined Reasonable Doubt 171 C. CALJIC No. 2.90 Adequately Explained The Burden Of - Proof 173 D. A Modification Setting Forth A Preponderance-of-the- Evidence Standard Would Have Been Erroneous 174 E. CALJIC No. 2.90 Informed The Jury That The Presumption Of Innocence Continues Through To A Verdict 174 F. Use Of The Term “Until? Did Not Undermine The | Prosecution’s Burden Of Proof 175 G. Appellant Was Not Prejudiced By The Giving OfThe 1994, TABLE OF CONTENTS (continued) Revised Version Of CALJIC No. 2.90 - 176 THERE ARE NO GUILT PHASE ERRORS | TO ACCUMULATE 177 A REVERSAL AS TO ANY INDIVIDUAL COUNT OR SPECIAL CIRCUMSTANCE DOES NOT WARRANTAPENALTY PHASE RETRIAL 178 ix XVI. XVII. XVIII. XIX. TABLE OF CONTENTS (continued) APPELLANT’S UPPER TERM SENTENCES ON COUNTS 4 AND 9 SHOULD BE UPHELD 180 A. Relevant Sentencing Proceedings B. The Cunningham Decision Page 181 182 C. The Upper Term On Count 4 WasConstitutional Based On Appellant’s Criminal History D. Any Cunningham Error Was Harmless THE TRIAL COURT PROPERLY IMPOSED CONSECUTIVE SENTENCES FOR APPELLANT’S CARJACKING CONVICTIONSIN COUNTS10 AND 14 A. Relevant Sentencing Proceedings B. Legal Analysis THE ABSTRACT OF JUDGMENT SHOULD BE CORRECTED TO REFLECT A CONSECUTIVE SENTENCE OF LIFE WITH THE POSSIBILITY OF PAROLE AS TO COUNT15 THE TRIAL COURT WAS NOT REQUIRED TO INSTRUCT THE JURY AS TO THE BURDEN OF PROOF AT THE PENALTY PHASE CALJIC NO.8.88, AS GIVEN TO THE JURY IN THIS CASE, PROPERLY DEFINED THE JURY’S SENTENCING DISCRETION 183 184 185 185 186 190 19] 194 TABLE OF CONTENTS(continued) XXI. INTERCASE PROPORTIONALITYREVIEW IS NOT REQUIRED BY THE FEDERAL OR CALIFORNIA CONSTITUTIONS XXII. APPELLANT’S SENTENCE DOES NOT VIOLATE INTERNATIONAL LAWAND/OR - THE EIGHTH AMENDMENT XXII. WRITTEN FINDINGS REGARDING FACTORS IN AGGRAVATION AND MITIGATION WERE NOT REQUIRED CONCLUSION xi Page 197 198 199 200 ot SomAASCRAIMIERNENUNESRNART RONNSEN ok Meg p ETN NA seengn agemARENASEESCrseningat on«estanMapes nt EF eh wie Fe TABLE OF AUTHORITIES Cases Apprendi v. New Jersey (2004) 530 U.S. 466 Barnes v. United States (1973) 412 U.S. 837 ' Bean v. Calderon (9th Cir. 1998) 163 F.3d 1073 Blakely v. Washington (2004) 542 U.S. 296 Bruton v. United States (1968) 391 U.S. 123 Chapman y. California (1967) 386 U.S. 18 Clemons vy. Mississippi (1990) 494 U.S. 738 Covarrubias v. Superior Court (1998) 60 Cal.App.4th 1168 Cruz v. New York (1987) 481 U.S. 186 Darden v. Wainwright (1986) 477 U.S. 168 Davis v. Georgia (1976) 429 U.S. 122 Ex Parte Brumback (1956) 46 Cal.2d 810 Xil Page 168, 179-180, 193 161 146 180 116-117, 120-124, 126, 148 112, 124 178 93 124 B 1 93 TABLE OF AUTHORITIES(continued) Gray v. Maryland (1998) 523 U.S. 185 Gray v. Mississippi (1987) 481 U.S. 648 Gregg v. Georgia (1976) 428US. 153 _ Harrington v. California (1969) 395 U.S. 250 Hicks v. Oklahoma (1980) 447 U.S. 343 Hollins v. Department ofCorrections, State ofIowa _ (8th Cir. 1992) 969 F.2d 606 Hovey v. Superior Court (1980) 28 Cal.3d 1 Inre Candelario (1970) 3 Cal.3d 702 Lilly v. Virginia (1999) 527 U.S. 116 Lockhart v. McCree — (1986) 476 U.S. 162 Nealv. State ofCalifornia (1960) 55 Cal.2d 11 People v. Anderson (1990) 52 Cal.3d 453 People v, Anderson (2001) 25 Cal.4th 543 xiii Page 121 71 199 124 92 146 54, 88-90, 93, 95 190 124 96 186 174 107, 111, 122, 192 TABLE OF AUTHORITIES (continued) Page People v. Aranda (1965) 63 Cal.2d 518 | 117, 120, 124, 133, 139 People v. Arias (1996) 13 Cal.4th 92 146, 192 People v. Armstead (2002) 102 Cal.App.4th 784 154 People v. Avena (1996) 13 Cal.4th 394 . 70, 73 People v. Avila (2006) 38 Cal.4th 491 73 People v. Barnett (1998) 17 Cal.4th 1044 194, 196 People v. Barnwell (July 26, 2007, S055528) _ Cal.4th 2007 Daily Journal D.A.R. 11,385 164 People v. Beagle (1972) 6 Cal.3d 441 153 People v. Beamon (1973) 8 Cal.3d 625 186-187 People v. Bean (1988) 46 Cal.3d 919 128 People v. Bias (1959) 170 Cal.App.2d 502 153 - People v. Bigelow (1984) 37 Cal.3d 731 92, 193 XiV TABLE OF AUTHORITIES (continued) Page People v, Black (Jul. 19, 2007, $126182) Cal.4th [2007 WL 2080875] 183 People v. Box (2000) 23 Cal.4th 1153 91, 129, 135 People v. Boyer (2006) 38 Cal.4th 412 - 198-199 People v. Boyette (2002) 29 Cal.4th 381 195 People v, Breaux (1991) 29 Cal.4th 381 . 195 People v. Brown (2004) 33 Cal.4th 382 164, 169 People v. Burgener - (1986) 41 Cal.3d 505 176 People v. Burgener (2003) 29 Cal.4th 833 192 People v. Carpenter (1997) 15 Cal.4th 312 136, 168 People v. Carpenter (1999) 21 Cal.4th 1016 123 People v. Carter | (2005) 36 Cal.4th 1215 96, 129 People v. Cash (2002) 28 Cal.4th 703 . : 160 XV TABLE OF AUTHORITIES (continued) Page People v. Castro (1985) 38 Cal.3d 301 " 153 People v. Catlin (2001) 26 Cal.4th 81 153 People v. Chatman (2006) 38 Cal.4th 344 . 69-70, 85, 108 People v. Clair (1992) 2 Cal.4th 629 101, 176 People v. Cleveland (2004) 32 Cal.4th 704 160 People v. Coffman (2004) 34 Cal.4th 1 130 People v. Coleman (1989) 48 Cal.3d 112 «187 People v. Cornwell . (2005) 37 Cal.4th 50 192, 195 People v. Crittenden (1994) 9 Cal.4th 83 69, 197 People v. Cunningham (2001) 25 Cal.4th 926 69, 137, 180, 182-184 People v. Dellinger (1989) 49 Cal.3d 1212 176 People v. Dillon (1983) 34 Cal.3d 441 167 People v. Dominguez (1995) 38 Cal.App.4th 410, 187 XVI TABLE OF AUTHORITIES (continued) Page - People v. Downey (2000) 82 Cal.App.4th 899 93 People v. Earp (1999) 20 Cal.4th 826 169 People v. Eli (1967) 66 Cal.2d 63 107 People v. Engelman (2002) 28 Cal.4th 436 164 People v. Fairbank (1997) 16 Cal.4th 1223 198 People v. Feaster (2002) 102 Cal.App.4th 1084 101 People v. Fletcher (1996) 13 Cal.4th 465 . 120 People v. Freeman (1994) 8 Cal.4th 450 171-172 People v. Frierson (1979) 25 Cal.3d 142 199 People v. Frye (1998) 18 Cal.4th 894 102, 112, 156 People v. Fudge (1994) 7 Cal.4th 1075 100 People v. Geier (2007) 41 Cal.4th 555 152 People v. Ghent (1987) 43 Cal.3d 739 198 XVii TABLE OF AUTHORITIES (continued) _ People v. Goldberg (1984) 161 Cal.App.3d 170 People v. Gray (2005) 37 Cal.4th 168 People v. Green (1980) 27 Cal.3d 1 People v. Guerra (2006) 37 Cal.4th 1067 People v. Gurule (2002) 28 Cal.4th 557 People v. Gutierrez (2002) 28 Cal.4th 1083 People v. Gutierrez (2002) 28 Cal.4th 1083 People v. Harris (2005) 37 Cal.4th 310 People v. Hawthorne (1992) 4 Cal.4th 43 People v. Heard (2003) 31 Cal.4th 946 People v. Hearon (1999) 72 Cal.App.4th 1285 People v. Hernandez (2003) 30 Cal.4th 835 People v. Hicks (1993) 6 Cal.4th 784 Page 174 130 93, 188-189 107, 156-157, 159-160, 169 194-195 196, 199 196 102 192 70-71, 75-76, 78 - 171, 176 71 187 XViii TABLE OF AUTHORITIES (continued) Page People v. Hill (1998) 17 Cal.4th 800 171 People v. Hillhouse (2002) 27 Cal.4th 469 157, 160, 169, 179, 198 People v. Hinton (2006) 37 Cal.4th 839 — 198-199 People v. Holbrook (1955) 45 Cal.2d 228 153 Peoplev. Holt (1997) 15 Cal.4th 619 161 People v. Hughes (2002) 27 Cal.4th 287 167, 168 People v. Jablonski (2006) 37 Cal.4th 774 192, 197 People v. Jackson (1996) 13 Cal.4th 1164 96, 196 People v. Jenkins (2000) 22 Cal.4th 900 69, 95, 198 People v. Johnson (1988) 47 Cal.3d 576 135 People v. Johnson (1992) 3 Cal.4th 1183 196 People v. Johnson (1993) 6 Cal.4th 1 170 People v. Jones (2003) 29 Cal.4th 1229 70, 86 xix TABLE OF AUTHORITIES (continued) People v. Jurado (2006) 38 Cal.4th 72 . People v. Kipp (1998) 18 Cal.4th 349 People v. Kraft (2000) 23 Cal.4th 978 People v. Latimer (1993) 5 Cal.4th 1203 People v. Lenart (2004) 32 Cal.4th 1107 People v. Lewis (2001) 25 Cal.4th 610 People v. Lopez (2003) 31 Cal.4th 1051 People v. Lucero (2000) 23 Cal.4th 692 People v. Majors (1998) 18 Cal.4th 385 People v. Manriquez (2005) 37 Cal.4th 547 People v. Martinez. (1987) 191 Cal.App.3d 1372 People v. Maury (2003) 30 Cal.4th 342 People v. McGuire (1993) 14 Cal.App.4th 687 XX Page 91, 96 135, 192, 197 199 186 96 175, 177, 199 188 199 197 127, 129, 138, 145, 192 173 86-87, 129, 192 187 TABLE OF AUTHORITIES(continued) People v. Medina (1995) 11 Cal.4th 694 People v. Mendoza (2000) 24 Cal.4th 130 People v. Mickey (1991) 54 Cal.3d 612 People v. Miranda (1987) 44 Cal.3d 57 People v. Mitcham (1990) 1 Cal.4th 1027 People v. Mitchell (2001) 26 Cal.4th 181 People v. Montiel (1993) 5 Cal.4th 877 People v. Morris (1988) 46 Cal.3d 1 People v. Morrison (2004) 34 Cal.4th 698 People v. Musselwhite (1998) 17 Cal.4th 1216 People v. Nakahara (2003) 30 Cal.4th 705 People v. Navarette (2003) 30 Cal.4th 458 People v. Ochoa (1998) 26 Cal.4th 398 XXi Page 137 107, 130, 137, 144 179 73 120 190 158 162 193 128-129, 138, 145, 169 156-157, 159, 179 86 146, 151 TABLE OF AUTHORITIES (continued) Page People v. Ochoa (2001) 26 Cal.4th 398 70, 85, 127 People v. Ortega (1998) 19 Cal.4th 686 188 People v. Osband (1996) 13 Cal.4th 622 146, 180, 187 People v. Panah (2005) 35 Cal.4th 395 192, 197 People v. Prieto (2003) 30 Cal.4th 226 160-161, 179, 193-194, 199 People v. Raley (1992) 2 Cal.4th 870 194 People v. Ramos (1997) 15 Cal.4th 1133 107 People v. Riel (2000) 22 Cal.4th 1153 156-157 People v. Roberts . (1992) 2 Cal.4th 271 179 People v. Rodrigues (1994) 8 Cal.4th 1060 70, 194, 196, 199 People v. Romero (1996) 13 Cal.4th 497 92 People v. Rubio (1977) 71 Cal.App.3d 757 163 People v. Samayoa . (1997) 15 Cal.4th 795 198 XXil TABLE OF AUTHORITIES (continued) People v. Samuels (2005) 36 Cal.4th 96 People v, San Nicolas (2004) 34 Cal.4th 614 People v. Sandoval (1992) 4 Cal.4th 155 People v. Sandoval ~ Jul. 19, 2007, $148917) Cal4th [2007 WL 2050897] People v. Sapp (2003) 31 Cal.4th 210 People v. Saunders (1993) 5 Cal.4th 580 People v. Schmeck (2005) 37 Cal.4th 240 People v. Smith (2003) 30 Cal.4th 581 People v. Smith (2005) 35 Cal.4th 334 . People v. Smith (2007) 40 Cal.4th 483 People v. Smithey (1999) 20 Cal.4th 936 People v. Snow (2003) 30 Cal.4th 43 People v. Staten XXiii Page 192 192 144 184 130, 192 199 85 70, 85, 193. 169, 198 101-102 169 160, 176, 193, 199 TABLE OF AUTHORITIES (continued) People v. Staten (2000) 24 Cal.4th 464 People v. Stewart (2004) 33 Cal.4th 425 People v. Stitely ~ (2005) 35 Cal.4th 514 People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968 People v. Tuilaepa (1992) 4 Cal.4th 569 People v. Turner (1990) 50 Cal.3d 668 People v. Turner (2004) 34 Cal.4th 406 People v. Valdez (2004) 32 Cal.4th 73 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. Welch (1999) 20 Cal.4th 701 People v. Wheeler XXIV Page 177 69, 70, 75, 85 91, 94, 128, 192 92, 129, 135 194, 196 158 169 129-130 92 193 100, 112 197 TABLE OF AUTHORITIES (continued) Page People v. Wheeler (1992) 4 Cal.4th 282 102 People v. Witt (1915) 170 Cal. 104 167 People v. Wright (1988) 45 Cal.3d 1126 173 Pulley v. Harris . (1984) 465 U.S. 37 197 Richardson v. Marsh (1987) 481 U.S. 200 120 Ring v. Arizona (2002) 536 U.S. 584 179, 193 Sandoval v. Calderon (9th Cir. 2001) 241 F.3d 765 146 Silva v. Woodford (9th Cir. 2002) 279 F.3d 825 179 Tapia v. Superior Court (1991) 53 Cal.3d 282 . 90 United States v. Johnson (9th Cir. 1987) 820 F.2d 1065 146 United States v, Lane (1986) 474 US. 438 , 146, 151 Victor v. Nebraska (1994) 511 U.S. 1 171 Wainwright v. Witt (1985) 469 U.S. 412 69, 70, 73-75, 85 XXV TABLE OF AUTHORITIES (continued) Witherspoonv.Illinois (1968) 391 U.S. 510 Zant v. Stephens (1983) 462 U.S. 862 Constitutional Provisions Cal. Const., art. I, §17 U.S. Const. 5th Amend. | U. S. Const. 6th Amend. U.S. Const. 8th Amend. U.S. Const. 14th Amend. Statutes Code Civ. Pro., § 223 Evid. Code, § 201 Evid. Code, § 352 Evid. Code, § 354 Evid. Code, § 664 Evid. Code, § 1101 Evid. Code, § 1220 Evid. Code, § 1221 Page | 69, 85 178 178 116, 199 95, 116, 164, 182, 191, 194, 199 95, 116, 169, 178, 191, 194, 198-199 95, 164, 182, 191, 194, 199 54, 90-93 135 99, 106, 107, 109 107, 111, 112, 122 135 106, 152 123 122 XXVi TABLE OF AUTHORITIES (continued) . Page ~ Health & Saf. Code, § 11352 110 Pen. Code, § 187 1-3, 130, 140, 166, 167 Pen. Code, § 190.2 2, 3, 140 Pen. Code, § 190.3 195 Pen. Code, § 190.4 | 3 Pen. Code, § 211 1-3, 130, 131, 140 Pen. Code, § 213 : 2-4, 130, 188 Pen. Code, § 214 131 Pen. Code, § 215 2, 3, 130, 131 Pen. Code, § 236 . 131 Pen. Code, § 264.1 2,3, 131 Pen. Code, § 288a 2,3, 131 Pen. Code, § 459 1, 3, 140 Pen. Code, § 654 | 4, 185-189 Pen. Code, § 664 2, 3, 130, 190 Pen. Code, § 667.61 3, 131, 181 Pen. Code, § 954 128 Pen. Code, § 954.1 128 Pen. Code, § 1170.1 4,181 Pen. Code, § 1239 4 XXVil TABLE OF AUTHORITIES(continued) Pen. Code, § 12022 Pen. Code, § 12022.5 Pen, Code, § 12022.7 Veh. Code, § 10851 Court Rules Cal. Rules of Court, rule 4.421 Other Authorities CALJIC No CALJIC No. CALJIC No. CALJIC No. CALJIC No. CALJIC No CALJIC No CALJIC No. CALJIC No. CALJIC No. CALJIC No. . 1.00 2.01 2.02 2.03 2.15 . 2.21.1 2.21.2 2.22 2.27 2.51 2.90 XXVili Page 2,3, 131 2-4, 131, 132, 181 2,3, 131 131 184 155, 156 155 155 155 155, 160-162 155, 156 155, 156 155, 157 155, 158 155, 159, 160 154, 160, 170-172, 174, 176 TABLE OF AUTHORITIES (continued) Page CALJIC No.8.84.1 195 CALJIC No.8.85 195 CALJIC No. 8.88. 194-196 CALIIC No. 17.02 152-154 CALJIC No. 17.41.1 164 XXiX IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, 8067394 v. CAPITAL JOHN LEO CAPISTRANO, CASE Defendant and Appellant. STATEMENTOF THE CASE Following the consolidation oftwo separately filed criminal cases (case nos. KA030671, KA031580) naming appellant, Michael Drebert, Eric Pritchard and Anthony Jason Vera as codefendants, Pritchard and Vera were severed from the proceedings and those charges were consolidatedinto a third separately filed criminal case (case no. KA034540) pending against appellant and codefendant Michael Drebert."’ On September 25, 1997, the Los Angeles County District Attorney filed an amended 16-count information charging appellant as follows: as to count 1, with the murder of Koen Witters (Pen. Code,” § 187, subd. (a)); as to count 2, with first degree residential burglary (§ 459); as to count 3, with first degree residential robbery (§ 211); as to counts 4 and 5, with the home 1. Respondent provides a more detailed procedural history relevant to the joinder and severance issues (AOB 136-183) in Argument VII, post. 2. All further statutory references will be to the Penal Code, unless otherwise designated. co cn dariaRataetbeameMUEEG ooheaMERAiietatPApeaefTAeteNnehny omew RE NEN invasion robbery of Jane Doe®and E.G.(§§ 211, 213, subd. (a)(1)(A));as to counts 6 and 7, with forcible oral copulation by acting in concert against Jane Doe (§ 288a, subd. (d)); as to counts 8 and 9, with forcible rape while acting in concert against Jane Doe (§ 264.1); as to counts 10 and 11, with the carjacking of E.G. and Jane Doe (§ 215, subd.(a)); as to counts 12 and 13, with home invasion robbery of Ruth Weir and Patrick Weir (§§ 21 1, 213, subd. (a)(1)(A)); as to count 14, carjacking of Ruth Weir (§ 215, subd. (a)); as to count 15, attempted willful, premeditated murder of Michael Martinez ($§ 664/187, subd.(a)); and as to count 16, homeinvasion robbery ofMichael Martinez (§§ 211, 213, subd. (a)(1)(A)). Burglary and residential robbery (§ 190.2, subd. (a)(17)) special circumstances were alleged as to the murder charged in count 1. As to counts 4 through 14, it was further alleged that appellant personally used a firearm (§ 12022.5, subd. (a)) and that a principal was armedwith a firearm (§ 12022, subd. (a)(1)) during the commission of those offenses. As to counts 15 and 16, it was further alleged that appellant personally used a deadly and dangerous weapon (§ 12022, subd. (b)), a baseball bat, in the commission ofthe offenses and that appellant personally inflicted great bodily injury (§ 12022.7, subd. (a)). (3CT 790-801.” Appellant pled not guilty and denied the special allegations. (3CT 802.) Appellant and codefendant Drebert were triedjointly, but evidence was heard by separate juries. (SCT 1186-1187; IRT 1001.) Appellant’s jury 3. Although Jane Doe and her husband wereidentified by their true namesat trial and throughout in the appellate record, for privacy reasons, respondentwill refer to these victimsby their first and lastinitials. 4. The amended information jointly charged codefendant Michael Drebert with the offenses charged in counts 1, 2, 3, 12, 13, 14, 15, and 16. (3CT 790-801.) Drebert’s convictions were affirmed by the California Court of Appeal, Second Appellate District, Division Seven in case number B121548. found him guilty of murder in the first degree and found the special- circumstance allegations of burglary and residential robbery to be true (§§ 187, subd. (a), 190.2, subd. (a) (17); count 1). The jury also found appellant guilty of first degree residential burglary (§ 459; count 2); first degree residential robbery (§ 211; count 3); five counts ofhome invasion robbery (§§ 211, 213, subd. (a)(1)(A); counts 4, 5, 12, 13, 16); two counts of oral copulation by acting in concert with force (§ 288a, subd. (d); counts 6 and 7); two counts of forcible rape while acting in concert (§ 264.1; counts 8 and 9); two counts of carjacking (§ 215, subd. (a); counts 10 and 14); and one count of attempted willful, premeditated murder (§§ 664/187, subd. (a); count 15). The jury found the personal use (§ 12022.5, subd. (a)) and principal-armed (§ 12022, subd.(a)(1)) allegations true as to counts 4 through 10 and 12 through 14, The jury further foundtrue the allegation that appellant personally used a deadly and dangerous weapon (§ 12022, subd. (b)), a baseball bat, in the commission of counts 15 and 16 and personally inflicted great bodily injury (§ 12022.7, subd. (a)) as to those two counts. (SCT 1336-1350.) On November 17, 1997, after a penalty phasetrial, in which both the prosecution and the defense presented evidence,the jury affixed the penalty on Count | at death. (6CT 1450.) The trial court denied appellant’s automatic motion for reduction of sentence (§ 190.4, subd. (e)). (6CT 1506.) The trial court sentenced _ appellant to death for thejudgment imposedas to count 1. (6CT 1498-1499.) Asto count9, the court imposed a fully consecutive indeterminate term of25 yearsto life (§ 667.61, subd.(a)-(e)), plus the upper term of 10 years for the personal firearm use enhancement. (6CT 1502-1503.) As to count 15, the court sentenced appellant to a consecutive indeterminate term oflife, plus one year for the deadly weapon enhancementplusthree years for the great bodily injury enhancement. (6CT 1504-1505.) The court selected count 4 as the principal determinate term and imposedthe upper term ofnine years for that robbery in concert plus a 10-year upper term for the section 12022.5 enhancement. (6CT 1505-1506.) The court ordered that the sentences on counts 5, 10, 12, 13, 14 and 16, run consecutive to the sentence imposed on count 4 and recalculated the sentences pursuant to section 1170.1, subdivision (a) to be one-third ofthe mid-term for the terms and enhancements connected to each of those counts as follows: count 5, three years four months; count 10, three years; count 12, 16 months; count 13, 16 months; count 14, 20 months; and count 16, three years four months. (6CT 1493, 1501-1505; 12RT 4299-4301.) The court struck the section 213, subdivision (a)(1)(A)allegations as to counts 12 and 13. (6CT 1503-1504.) The court imposed concurrent terms as to counts 6, 7, and 8. (6CT 1501-1502). Thetrial court stayed the sentences as to counts 2 and 3 pursuant to section 654. (6CT 1499.) Pursuant to section 654, the court further stayed principal armed enhancements as to counts 4 through 10 and 12 through 14. (6CT 1500-1505.) This appeal is automatic. (§ 1239, subd.(b).) STATEMENT OF FACTS J. Guilt Phase Evidence A. Prosecution Evidence 1. Murder Of Koen Witters On December9, 1995 (counts 1-3) From November 1994 through November 1995, Theresa Wheatley resided with her husband, her daughter Jessica Rodriguez, and her granddaughterin Apartment 83 of the Pheasant Ridge Apartments, located on Colima Road in Rowland Heights. (6RT 2618-2620, 2623.) The Pheasant 4 Ridge Apartments consisted of several hundred units in two wings. (SRT 2326.) The complex wasnot gated, and the security guard building was not occupied during the day. (7RT 2891.) | Ms. Wheatley’s husband was appellant’s uncle. (6RT 2618.) Wheatley’s lease expired on November 30, 1995. A few days prior to November 30, appellant and two other men helped Ms. Wheatley and her family move out ofthe apartment. Appellant was at Wheatley’s apartmentfor fouror five hours during the move. (6RT 2620-2625.) Jessica movedin with | hersister, Joanne Rodriguez. (6RT 2621.) Ms. Wheatley and her husband gave Jessica a car they owned (Peo. Exh. 6 [photo]) to drive. (6RT 2621- 2622.) Wheatley believed appellant was living with Joanne at the time Wheatleymoved. (6RT 2624-2625.) Jessica was dating codefendant Drebert. (6RT 2622-2623.) In September1995, Koen Witters, a Belgian citizen, came to the United States to perform work for Free-Free, a company headquartered in Taiwan. Witters moved into Apartment 401”ofthe Pheasant Ridge Apartments. (SRT 2334-2337; 7TRT 2884-2891.) Apartment 401 wasa ground-floor unit of the complex and wasnotdirectly accessible from the carport area. (SRT 2328- 2329.) Sherie Chen, another Free-Free employee, lived in a different apartmentin the same complex. (SRT 2337.) In October 1995, Ms. Chen and Witters’s friend, Chris Cheuk, were introduced to Witters’s girlfriend, Jasmine, wholived in Taiwan. (SRT 2346-2348; Peo. Exh. 25H [photo].) On December9, 1995, Witters dropped offhis rental car, and Ms. Chen drove him to the apartment complex around 4:00 p.m. Ms. Chenarranged to meet Witters at 9:30 p.m. to retrieve the apartment keys and a company cellular phone before he returned to Taiwan later that evening. (SRT 2337- 5. Wheatley’s apartment, Apartment 83, was located several hundred yards from Apartment 401. (7RT 2892-2893.) 5 2339.) Around 9:20 p.m., Ms. Chen went to Witters’s apartment and repeatedly knocked on the door and called Witters’s name. (SRT 2339-2340.) When he did not respond, she waited outside the front door. The airport shuttle driver arrived and knocked on the door but received no response. The driver then tried the door knob, and found the door unlocked. (SRT 2340- 2342.) They entered the apartment, and Ms. Chennoticed the living room wasin disarray. The driver looked into the bedroom, turned around,and said “He’s dead. He’s dead.” He grabbed Ms. Chen andpulled her out of the apartment. (SRT 2342-2343.) The shuttle driver and Ms. Chendroveto the security office and called 911. They returned to Witters’s apartment with a security guard and waited for the police to arrive. (SRT 2343-2344.) Los Angeles County Deputy Sheriffs arrived around 10:00 p.m. Paramedics arrived seconds later, checked Witters for vital signs, and pronounced him deceased. (SRT 2326, 2329-2332.) Wheninvestigating officers Los Angeles County Deputy SheriffStephen Davis and Sergeant John Laurie arrived, they found Witters lying face down in the bedroom. (SRT 2359-2360, 2367-2368; 7RT 2885.) His ankles and hands were boundwith white socks and videotape. His mouth was gaggedwith a white athletic sock secured in place by a plastic bag wrapped around his head and tied with a black nylon luggage strap around his neck. (SRT 2368, 2382; 7RT 2812- 2820.) The strap found around Witters’s neck matched a small, square flight bag lying on the living room floor. (SRT 2375.) Lacerations were present on both of Witters’s wrists, (SRT 2370, 2389-2390.) The officers found a steak knife partially imbeddedin the box spring beneath the mattress. (SRT 2372.) A small amountofa substanceconsistent with blood wasvisible on the knife blade. (SRT 2385-2386.) No fingerprints were found on the knife. (SRT 2411.) Toiletry items were present around the bathroom sink. Shaving cream and stubble werein the sink. When the bathroom door was open,the interior of the bathroom was visible from the bedroom window of Witters’s apartment. (SRT 2372-2373.) The apartment appeared to have been ransacked. (SRT 2409.) A large black suitcaseon the bed had been forcibly opened andits contents strewn on and aroundthe bed. (SRT 2370-2371, 2382-2383.) Witters’s identification card, a wallet-sized photograph of an Asian woman,andotheridentification cards were on the floor near the bed. (SRT 2371-2372.) Witters’s Apple Macintosh desktop computer was missing from the living room. (SRT 2344- 2345, 2351-2354, 2357-2358, 2373-2376, 2381.) A VCR wasalso missing from the living room, The cellular phone issued to Witters by Free-Free was also missing. (SRT 2344-2345, 2376.) Eugene Carpenter, a pathologist licensed to practice medicine in California and a Medical Examiner employed by the Los Angeles County Department of the Coroner, opined that the cause of Witters’s death was asphyxia due to strangulation resulting from constriction of the throat and neck. (7RT 2825, 2833.) Pallor to the skin of the neck, multiple areas of bleeding in the musclesat the front ofthe neck andin the throat, linear purple bruising at the back of the neck, and distinctive red-brown bruises found beneath the ligature were consistent with, and specific to, this cause of death. The bruising suggested considerable force was applied by theligature or the ligature combined with another force. (7RT 2831-2835.) The bruising on the back of the neck and large abrasions scattered over the central area of Witters’s face were consistent with a downwardforce being applied on the neck, forcing the face hard into the carpet. (7RT 2830-2831, 2836-2839.) Twolarge cuts on Witters’s lower forearmstransected one edgeofthe arm to the other, exposing the tendons. The lacerations did not cut through the tendons or major blood vessels. These wounds werebloody, consistent with circulation in the body at the time the cuts were made. (7RT 2831-2832.) 2. Crimes Against J.S. And E.G. On December 15, 1995 (counts 4-11) a. Victims’ Account Of The Crimes On December15, 1995, J.S. lived on Deveron Drive in Whittier with her husband, E.G. (7RT 2895-2896; 8RT 3000.) Around 9:30 p.m.that evening, J.S. and E.G. returned from the homeofE.G.’s parents. (7RT 2897- 2898; 8RT 3000-3001.) E.G. pulled the car onto the driveway,exited the car, and manually opened the garage door because the automatic garage door opener was not working. (7RT 2898-2899.) After opening the door, E.G. returned to the car, drove into the garage, and turnedoffthe ignition and car lights. E.G. got out of the car while J.S. collected her belongings. (7RT 2899; 8RT 3001-3002.) E.G. turned around and saw a masked man standingnext to the driver’s side of the car. The mask had onelarge opening for the eyes and one forthe mouth. The man pointed a gun directly at E.G. (RT 3002-3003, 3022.) The man wasa little taller than E.G., who wasfive-feet, eight-inchestall. (8RT 3003.) The man told E.G., “Give me your money.” (8RT 3003.) E.G. reachedinto his fanny pack and removedhis wallet. E.G.’s keys to the house and twocars werealso in the pack. (8RT 3003-3004.) E.G. noticed three or four other men emerge from aroundthe garage. Twoor three ofthe men wore masks, similar to ski masks. Two wore beanies pulled downand a bandana over their mouths. Atleast two ofthe men had guns. Most of the men wore dark cloth gloves. (8RT 3005-3008.) J.S. wasstill seated in the front passenger seat when she heard E.G, yell. (7RT 2899.) J.S. looked toward her husband, whowasstill inside the garage, and saw two men facing him. One had his hand outstretched at shoulder height and appeared to hold something. (7RT 2900-2901.) JS. believed her husband was being robbed, took out her wallet, and removed $100. Before she wasableto get outofthe car, one ofthe men walked around to her door, held a gun inside the passenger door, and pointedit at her chest. The man did not say anything to her. She gave him the $100. (7RT 2901- 2902.) The man motionedwith his gun for J.S. to get out of the car. J.S. was frightened and complied. Whenshegotout ofthe car, J.S. saw her husband standing on the drivewayin front of a brick wall. (7RT 2903.) The man whohad confronted E.G.told E.G.not to lookat his face and tofollow him out to the driveway. The man asked E.G.ifhe had any money in the house. (7RT 2903-2904; 8RT 3004.) E.G. said he had some money inside. Heled the way. (8RT 3006-3007.) Everyoneentered the kitchen. The group then walked down a hallway to the master bedroom. (7RT 2905-2907.) As they exited the kitchen,J.S. looked up and madeeye contact with the man following her husband. (7RT 2909-2910.) The man—whom J.S. later identified as Pritchard — appeared to be Latino and had distinctive eyes. His eyes reminded J.S. of a Spanish phrase, “Ojos Chinos,” meaning “Chinese eyes.” (7RT 2910-2911.)” Pritchard said, “Stop looking at me, or I’m gonnakill you.” (7RT 2910.) Pritchard held a gun. (7RT 2913.) He had a dark bandanacovering his mouth and wore a dark beanie on his head pulled down to his eyebrows. She could 6. On March4, 1996, J.S. attended a lineup at the County Jail and viewed three lineups of six men each. In onelineup, she recognized the man with “Chinese eyes” as being the person in position number | of People’s Exhibit 39. (7RT 2913-2914, 2921.) This was the man whotold J.S. to stop looking at her and held a gun. (7RT 2914-2915.) Theparties stipulated that the manin position | in People’s Exhibit 39 was Eric Pritchard. (7RT 2915.) 9 see part of his nose and his eyes. (7RT 2911-2912.) J.S. noticed that Pritchard was very tall, around six feet tall. (7RT 2907-2908.) They entered the master bedroom.Pritchard told J.S. and E.G.to sit on the bed, and they complied. (7RT 2908-2909.) J.S. saw two additional men in her house who werecloseto six feet tall. (7RT 2916-2917.) One of these men -- whom JS. later identified as Jason Vera’ -- had an olive complexion, very deep set “sad” eyes, and a large hooked nose. He wore a bandana over his mouth and a beanie on his head. He had a “regular build.” (7RT 2917- 2918.) The other man in the doorwayhad a very light complexion and wore a bandana over his mouth and a beanie on his head: (7RT 2918.) He was very thin andtall and could have been either Caucasian or Hispanic. Both the thin, light-skinned man and Vera held guns which they pointed toward J.S. and E.G. (7RT 2919-2920.) The men rummagedthrough the dresser and the closet. They told J.S. and E.G.to lie down on the bed. (7RT 2916; 8RT 3008-3010.) The men used E.G’s belts andties to bind J.S.’s and E.G.’s hands behindtheir backs and to tie their legs together at the knees and ankles. (7RT 2922-2923; 8RT 3009.) J.S. was lying face down on the bed next to her husband. (7RT 2923.) The men searched the house. (8RT 3010.) One of the mensat next to J.S..on the bed and asked her if they had children, if they were expecting anyone,if they had firearms, and questions about their neighbors. He also askedifthey were goingto call the police after they were gone. J.S. said, “No.” The mansaid that, if she did, they would send their “homeboys”to kill their family. (7RT 2925; 8RT 3011.) This man wasnot Pritchard (the man who had threatenedto kill her in the hallway). 7. At the March 4 lineup, J.S. recognized as the man depicted in position 6 ofPeople’s Exhibit 40 as the man with the olive-complexion. (7RT 2920-2921.) The parties stipulated the man in position6 of People’s Exhibit 40 was Jason Vera. (7RT 2921.) 10 (7RT 2926.) At least two of the men, including Pritchard, put gunsto the headsofJ.S. and E.G. and repeatedly asked,“Whereis the money? Is it worth yourlife?” (7RT 2926-2927.) While being threatened, J.S. heard doors and ‘boxes being openedin the house. (7RT 2927.) At somepoint, one of the men began “flipping out” and repeatedly said, “You saw myinsignia.” The man asked E.G.if he knew the gang to whichthe sign belonged. E.G. denied seeing the mark. (7RT 2928-2929; 8RT | 3013-3014.) The man removeda bullet from his gun, put it on the bed between J.S. and E.G., and asked,“Isn’t it big?” (7RT 2929; 8RT 3013.) At another point, one of the men put the gun against the lens of E.G.’s _ eyeglasses. (8RT 3013.) Several ofthe men,including Pritchard, taunted J.S. and E.G.and inquired whether they would perform sexualacts to save their lives. (7RT 2929-2930; 8RT 3014.) After initially failing to locate them himself, the robber who appeared to be the leader of the group took J.S. from the room to locate some hypodermic needles. (7RT 293 1-2934, 2952; 8RT 3015-3016.) This man was oversix-feet tall, had a “good build,” and wore a mask overhis face that had holesfor his eyes and mouth. (7RT 2936.) J.S. walked downthehall into the other bedroom and showedhim the bag containing the needles. The man said, “Never mind, we’re gonna go into the bathroom.” J.S. began to cry. (7RT 2934-2935.) Onceinside the bathroom,and while J.S.’s hands remained tied behind her back, the man lifted her sweater and fondled her breasts. (7RT 2935- 2937, 2943.) He pulled downherpants and made commentsaboutherpelvic area and vagina. (7RT 2937-2938.) The man removedhis penis from his pants and said, “Bite it, and I’ll kill you.” He forced J.S. to orally copulate him for a few minutes, raped her, again forced herto orally copulate him, and ll a. “St SARAMENRNORRLENENGetinseseMenaNRE MELAS es ge age IRNeR 8 tee intenidemaialaieesigaateScnseek oy eS cote nuSe raped her a second time. Heejaculated inside her vagina. He had J.S. stand, then pulled up her pants and buttoned them. (7RT 2939-2942.) The man walked J.S. into the second bedroom,laid her face down on the bed and left. (7RT 2943.) Pritchard immediately entered the bedroom. (7RT 2944-2945.) Hetold her to kneel on the floor and said, “Bite it and [ll kill you.” Pritchard forced J.S. to orally copulate him, and he ejaculated into her mouth. (7RT 2945-2947.) He laid her down on the bed face down. She was crying loudly. Pritchard asked her why she was crying. Whenshetold him she was crying because the other man had raped her, he became very angry. He told her not to make so muchnoise or he would kill her. (7RT 2947-2948.) Pritchard left. Another man entered and stood guard. He repeatedly cocked and uncockedhis gun and talked to J.S. (7RT 2948.) This man asked J.S. what she did for a living and how much moneyshe made. J.S. answered because. she wastrying to save herlife. The man whorapedherentered and left the bedroom three times during this conversation. Once when he entered the room,he lay on top ofher, made thrusting movements with his pelvis, and taunted her, saying “Oh, it was good, wasn’t it? It was big, wasn’t it?” (7RT 2949.) The robberstied J.S. with additional belts and ties. (7RT 2952-2953.) The man whoraped her pulled down her pants and fondled her buttocks. Several of the other men also fondled her buttocks. (7RT 2950-2951.) The man whoraped J.S. also made sexual comments about E.G. (7RT 2951.) Someone put a handkerchiefin J.S.’s mouth andtied another handkerchief around her neckto secureit, but J.S. could still speak. She told the man who raped her that she could not breathe, and he removedthe gag. J.S. wasstill face down on the bed. (7RT 2953-2954.) The man whorapedherasked her about her background. When she replied that she was Mexican,hesaid, 12 “Really?” He asked her if she could speak Spanish and then askedher, in Spanish, how old she was. After she replied in Spanish, the man asked her why she married a “white guy.” (7RT 2955-2956.) She told him that her husband wasPuerto Rican. The rapist immediately left the room. He returned later and said he would notkill her because she was Mexican. Hetold her not to move for 20 minutesafter they left. (7RT 2956-2957.) While J.S. was gone from the room,E.G. remainedtied up on the bed. Oneofthe robbers engaged him in conversation abouthis job, whether E.G. was going to have a family, and why he did not keep weaponsin the house. E.G. heard J.S. crying. (8RT 3016-3017.) One ofthe robbers asked E.G., in Spanish, his age. E.G. answered in English. The manleft. Another man entered the room andsaid, “You don’t look like a Puerto Rican.” (8RT 3017.) E.G. was gagged with a handkerchiefheld in place with a t-shirt tied around his head. One of the robbers instructed him not to call the police for 20 minutes. The menleft. (8RT 3018-3019.) E.G. and J.S. freed themselves. J.S. tried to call the police, but the phonecordsin the house had been cut. J.S. found an extra cord, her husband connectedit, and J.S. called 911. (7RT 2958-2961; 8RT 3019-3020.) J.S. and E.G. saw their home wasransacked. Stereo equipment, a VCR, two telephone answering machines, pocket watches, J.S.’s laptop computer, food, clothing, a guitar and guitar case, a toaster, an iron, and lot of jewelry was missing. (7RT 2962-2963; 8RT 2969-2970, 3020.) The laptop computer was a dark gray, Sceptre brand computer with a liquid crystal display. The screen was soft; it flexed and changed color when touched. (7RT 2963-2964.) In addition to the $100 J.S. gave the manin the garage, $100 was taken from a dresser in the house and E.G. gave the men $100 from | his pocket. (8RT 2968-2969.) Two answering machines were taken. A service receipt (IV Supp 2CT 382 [Peo. Exh. 41]) documented the repair of 13 one machine. (7RT 2964; 8RT 2970-2971.) A 1989 Honda Accord registered to J.S. was taken from its location inside the garage. (7RT 2963; 8RT 3021, 3030.) After the police arrived, J.S. was taken to Whittier Presbyterian Hospital where a sexual assault examination was conducted. (8RT 2972- 2973, 2955-2999.) A police officer interviewed E.G.at their residence and J.S. at the hospital and wrote a report. (8RT 2990.) J.S. believed the man whoraped her was Hispanic based uponhis voice. (8RT 2966-2967.) Of the four robbers, J.S. described the man who raped herasthe tallest man. (7RT 2961.) The shortest man was Pritchard. (7RT 2961-2962.) J.S. estimated that the light-complected man wasclose to Pritchard’s height, which she estimatedto be six feet. (7RT 2962.)® All four men wore dark, knit gloves. (8RT 2967.) | Twoor three days after the robbery, J.S. found the keys from E.G.’s fanny pack on top ofthe refrigerator. The key to the Honda was missing. (8RT 2967-2968.) The Honda was recovered by police on December27, 1995, at 12702 Salisbury Street in Baldwin Park. (8RT 3028-3030.) Cassette tapes and CDs were missing from the Honda. (8RT 2969-2970.) b. Victims’ Post-offense Identifications And Statement On March4, 1996, Los Angeles County Deputy SheriffDavid Vasquez conducted three lineupsat the Central Jail: one containing Pritchard, another 8. A booking report prepared when appellant, Pritchard, Vera and Drebert were arrested on January 19, 1996, listed Pritchard’s height and weightas five feet, nine inchestall and 135 pounds. Appellant waslisted as six feet, four inchestall, 210 pounds. Drebert was described assix feettall, 150 pounds, with a thin build. Vera was describedas six feet, two inchestall, 170 pounds, with a medium build. (SRT 2264-2265; see also 8RT 3148- 3150.) Appellant was the tallest and heaviest man of the four and had a “muscular” build. (8RT 3150-3151.) 14 containing Vera, and another containing Drebert. (8RT 3041, 3043-3044.) J.S. viewed the three lineups and identified Pritchard from one lineup and Vera from another lineup. (8RT 2974-2975.) She tentatively identified a person from the third lineup. (8RT 2975-2976.) J.S. viewed another lineup on March 20 at the County Jail. (8RT 2977.) Although appellant wasin the lineup,J.S. tentatively identified two other persons as similar in build and voice to the rapist. (8RT 2979-2980, 2987-2988.) After the lineups on March 4, J.S. and E.G. began preparing a document summarizingtheir recollections aboutthe incident. They completed the document after the March 20 lineup. They inserted the people they thought they had identified at the lineups into the summary and submittedit to the police department. (8RT 2987, 2990-2991.) The narrative included J.S.’s physical description ofthe rapist. (8RT 2992.) c. Appellant’s Refusal To Participate In A Court- Ordered Lineup A lineupincluding appellant was scheduled for March4, 1996. (8RT 3043-3044.) After the lineup was prepared and photographed, appellant refused to stand in the lineup. (8RT 3044-3045, 3048-3049.) Appellant was advised ofthe charges that were the subject of the lineupas listed the lineup refusal form. Appellant signed a Sheriff’s Departmentrefusal form on which he stated that he did not commit the crime and did not want to be a part ofthe lineup. (8RT 3045-3046; IV Supp 2CT 383 [Peo. Exh. 47 (form)].) 15 d. Appellant’s Conduct In Response To Court- ordered Blood Samples On July 20, 1996, Sergeant Joseph Purcell ofthe Los Angeles County Sheriff’?s Department obtained a court order commandingappellant to provide a blood sample. (8RT 3032.) On July 11, 1996, Sergeant Purcell met with appellant at the Los Angeles County Men’s Central Jail near the clinic office. Purcell informed appellant that he had an orderto get blood, saliva and hair samples from him. (8RT 3033.) Purcell informed appellant that the purpose ofthe samples was to perform DNAtesting. (8RT 3034.) Purcell showed the court order to appellant. (8RT 3036-3038.) Appellant responded that he did not have to obey court orders. (8RT 3038.) Appellant told Purcell that he would not provide the samples, just as he had not participatedin the lineup ordered by the court. Purcell told appellant that he did not have a choice. Appellant responded, “Fuck you.” (8RT 3034.) Purcell asked his partner, Deputy Hearne,to telephone the Pomonajudge whohadsignedthe order and advise the judge ofthe situation. The judge directed Hearne to amend the court order with a written statement that “all reasonable force” be used to complete the order. (8RT 3034-3035.) The watch commander, Sergeant Frank Gomez, listened to the call with the judge as the amendment was directed and approved by the court. (8RT 3035.) Several deputy sheriffs respondedto the clinic and a blood sample was drawn from appellant. (8RT 3035, 3039-3040.) Appellant’s handcuffs and waist chains were not removed while the blood was drawn. (8RT 3039.) Purcell drove the blood sample to the Los Angeles County Sheriffs crime lab and bookedit as evidencein the serology section. (8RT 3035.) 16 e. DNATesting Was Consistent With Appellant Theparties stipulated that, around 3:00 a.m. on December16, 1995,at Whittier Presbyterian Hospital, Dr. Roger Woodard performed a sexual assault examination ofvictim J.S. and obtained vaginal and oral swabs. (6RT 2703, 2705.) | In September 1996, Cellmark Diagnostics, a private laboratory that conducts DNA?testing primarily for human identification (6RT 2706-2708), received blood samplesidentified as originating from J.S., appellant, Michael | Drebert, Eric Pritchard, and AnthonyVera. (6RT 2703-2705, 2729-2730) and oral and vaginal swabsidentified as being taken from an examination ofJ.S. (6RT 2703-2705, 2730). . Restriction fragment lengthpolymorphism (RFLP)testing attempted on the vaginal swab wasinconclusive. Only DNA from J.S. was obtained using the RFLPtest. (6RT 2715; 7RT 2737-2738.) For RFLPtesting to get a DNAprofile, close to 250,000 sperm cells are needed. (7RT 2739.) The inconclusive finding was the result of the quantity of sperm present in the sample. (7RT 2793-2794.) Polymerase chain reaction (PCR) testing is similar to conventional ABO blood typing in that each site on the DNA molecule has a limited number of PCR marker types. (6RT 2716-2718.) PCR testing can be performed on extremely small biological samples and very old samples. (6RT 2719.) For PCRtesting, only around 200 sperm cells are needed. (7RT 9. DNA stands for deoxyribonucleic acid, the genetic material contained in each the nucleusofthe cells in the body, except for red blood cells. (6RT 2709.) 99 percent of DNAis the same from person to person. The remaining one percent does not include genes that code for physical characteristics. This “nonsense DNA”differs from individual to individual and can be used to forensically identify or exclude sample donors. (6RT 2710, 2720.) 17 2739.) Several tests “map” PCR markersin the laboratory. (6RT 2720.) The DQ Alpha polymarkertest examines six points on the DNA molecule in the region that differs from individual to individual. (6RT 2723.) The Short Tandem Repeats (STR) test examines three different sites on the molecule plus gender. (6RT 2723-2724.) Together, the DQ Alpha and STRtests provide nine pieces of genetic information plus gender. (6RT 2724.) For PCRtesting, swab specimensare separated into “sperm” and “nonsperm” fractions using chemicals and centrifugal force. (7RT 2744-2747.) Somecells from the victim remain in the sperm fraction. (7RT 2748.) It is commonfor separation in the fractions to be incomplete. (7RT 2749.) | Cellmark performed DQ Alpha polymarkertests upon the five blood samples and the oral and vaginal swabs in November 1996. (6RT 2730- 2731.) Based upon Cellmark’s testing, J.S. could not be excluded as the donor of both the sperm and nonsperm fractions from the oral swab. (7RT 2749-2750.) Appellant, Drebert, Pritchard, and Vera were all excluded as donors of the DNA obtained from the oral swab because all four possessed types at one or moreofthe six locations that are not present in the oral swab. (7RT 2750.) The length of time that. elapses between an assault and swabs being takentends to decrease the likelihood of sperm being present in the mouth. Swallowing or rinsing would reduce the presence of sperm. (7RT 2751-2752.) The vaginal swab taken from J.S. was divided into sperm and nonsperm fractions. (7RT 2752-2753.) DQ Alphatesting detected DNA from more than one person on the vaginal swab. (7RT 2756.) The data was consistent with the sperm fraction being a mixture of genetic material from two people. (7RT 2765.) Based upon Cellmark’s testing, Drebert, Pritchard and Vera were conclusively excluded as donorsofthe sperm fraction. (7RT 18 2754, 2756-2760, 2762-2763.)Because appellant’s DNA wasconsistent with all six genetic markers examined,he could not be excluded as a donorof the sperm fraction. (7RT 2764.) The results were consistent with J.S. and appellant being the donors of the DNA in the sample. (7RT 2766; see also TRT 2757-2764.) In April 1997, STR tests were performed ona blood sample submitted for appellant and J.S.’s vaginal swab and blood sample. (6RT 2704-2705; 7RT 2766-2767.) The results of the STR testing supported a finding that DNAwaspresent from at least two individuals in the sperm fraction. (7RT 2768-2771, 2773.) Cellmark tested for three markers (CSFIPO, TPOX, and THO1) and gender (XY). (7RT 2771.) The findings for all three genetic markers were consistent with J.S. and appellant. (7RT 2772-2779.) The gender test (XY) showed male DNA. (7RT 2779-2780.) Thus, acrossthe nine genetic markers tested, appellant could not be excluded as a donor source for the DNA on the vaginal swab that did not originate from J.S. (7RT 2780-2782.) Cellmark’s forensic DNA expert concluded, based upon the PCRtesting, that appellant’s blood sample was consistent with the sperm from the vaginal swab from J.S. (7RT 2785.) Appellant’s combination of STR markers occurs | in 1300 in the Caucasian population and 1 in 2700in the Hispanic population. (7RT 2801-2802, 2806.) Cellmark’s forensic DNAexpert did not calculatethe statistical frequency for a combination. of the STR and DQ Alpha markers but opined such a calculation would result in a significant increase in the numbers provided. (7RT 2807, 2811.) 10. A chart summarizingtheresults ofthe DQ polymarkertesting was presented to the jury. (7RT 2741-2744; Peo. Exh. 32 [chart].) 19 3. Robbery Of Ruth And Patrick Weir On - December23, 1995 (Counts 12-14) On December23, 1995, Ruth Weir resided in West Covina with her husband,Patrick. Their residence had a detached garage. (8RT 3052, 3054.) Thecross street was SwaneeStreet, which dead ends at Conlon near the Weir residence. (8RT 3052-3053.) An elementary schoolis located six houses north of the Weir residence. (8RT 3053.) Around 5:00 p.m. that evening, Mrs. Weir returned to her homein her 1993 white Ford Taurusafter running errands. (8RT 3056-3057.) Ms. Weir opened the garage door with the remote opener and drove into the garage. (8RT 3057.) Mr. Weir was out in his car. Mrs. Weir removedgroceries from the trunk and took them inside the house. Mrs. Weir exited her back door and walked across the back patio toward the open side door of the garage. (8RT 3058-3060.) Two men wearing dark-colored ski-type masksentered the yard through the garage. (8RT 3060-3061.) One ofthe men held gun. Using the gun, the man gestured toward the house andsaid, “Go inside.” The man also pointed the gun at Mrs. Weir’s dog, which wasoutside with her. (8RT 3062- 3063.) In response to questions, Mrs. Weir told the men that no one was inside the house, she expected her husband home,andshe did not know about the neighbors. Onceinside the house, one of the men closed the curtains in the living room. Mrs. Weir entered the back room of her home, the family room,followed by the two men. (8RT 3063-3065.) While they were in the family room, Mrs. Weir heard her husband’s El Caminopull into the driveway. Mrs. Weir looked outside and saw a man standing near the gate at the end of the block wall in the backyard. (8RT 3066.) Atthe direction ofone ofthe men, Mrs. Weir entered the dining room at the front of the house andlay on the floor. (8RT 3067, 3070.) The man 20 pulled downthe shades in the dining room. Mrs. Weir did as the man said because she wasscared. (8RT 3068.) Mrs. Weir heard her husbandenter the house through the family room. (8RT 3069.) Mr. Weir was a stroke victim and suffered from expressive aphasia, which caused him to not always understand words spoken to him. The man in the dining room had Mrs. Weir get up and enter the family room. (8RT 3070.) Mr. Weir was lying face down onthe floor. At that point, there were three robbers in the room with the Weirs. (8RT 3071.) The third man did not wear a mask; he covered his mouth and nose with the lapel of his jacket. (8RT 3072.) One ofthe masked men told Mrs. Weirto lie down next to her husband. (8RT 3073.) Of the three robbers, one appearedto be the leader. (8RT 3094.) One of the robbers brought a knife from the kitchen and gaveit to another robber who sat on the couch. (8RT 3073-3074.) The other robbers proceeded to bring wrapped Christmas packages from a spare bedroom into the family room. (8RT 3074-3076.) Mrs. Weir heard two robbers going through her handbagin the kitchen. (8RT 3076-3078.) One of the men askedherif she had money. When she answered, “No,” he responded,“If I find any money in your wallet, you’re dead.” The manalso asked Mrs. Weir the location of her gun. (8RT 3078.) Whenshetold the man that she did not have a gun, he said, “Yes, you havethis police thing in your wallet.” (8RT 3079.) The item inside the wallet was a police badgethatidentified her as a volunteer with the “SHOP” program, Seniors Helping Our Police. Mrs. Weir performed volunteer work for the West Covina Police Department, and she received training to assist in emergencysituations. (8RT 3079-3080.) One of the robbers came outof the kitchen andput his hands inside Mrs. Weir’s pants pockets and in the pocket of her husband’s pants. (8RT 3077, 3081.) One 21 man asked for her car keys, which were on a hookin the cupboard. (8RT 3081-3082.) The robbers took the packagesout of the house. (8RT 3082.) Mrs. Weirlifted her head andsaid, “You’re taking my Christmas presents. Why are you taking my Christmas presents?” One man leanedover, put the gun to her head andsaid,“Ifyou pick your head up again, I’1l put a bullet in it.” He also said, “Would you rather have your Christmas presents or your life?” Mrs. Weir did not look up again because she was“scared to death.” (8RT 3083.) After the menleft the house, Mrs. Weir got up and dialed 911. When the police arrived, Mrs. Weir inspected her house. Jewelry was missing from her bedroom,including five diamondrings, diamondearrings, and some gold chains. (8RT 3084-3085.) The wrapped Christmas presents were missing from the spare bedroom. $80 had been taken from Mr. Weir’s wallet and $4 from Mrs. Weir’s wallet. A gasoline credit card and her SHOP badge were also missing from her wallet. (8RT 3085.) Mrs. Weir had madetwosets of three ceramic angels and wrapped them asgifts. Both sets were missing. (8RT 3085-3086, 3092.) Mrs. Weir’s Ford Taurus wasalso missing from her garage. (8RT 3086-3087.) A Ziplock sandwich bag containing commemorative coins was also missing. (8RT 3088-3089.) Angela Phillipson, a neighbor of the Weirs, was outside just before dark on December 23, 1995. She saw an older, two-tone beige, four-door, American model car (similar to the two-tone car Wheatley gave to Jessica Rodriguez) and Mrs. Weir’s white Ford Taurus parked on the north side of Swanee. (8RT 3096-3100, 3104-3106.) The Taurus backed up and drove away very fast southbound on Conlon. (8RT 3101-3102.) The other car drove away at normal speed in a westbounddirection on Swanee. Asthe car drove past Phillipson, she saw a driver and a front passengerinsidethecar. (8RT 3102.) Later Ms. Phillipson noticed several police vehicles around the 22 Weir residence. As she approached the Weir home,she noticed the same two- tone car she hadseenearlier turn aroundin thestreet in front of Phillipson’s homeand drive back in the other direction. (8RT 3103-3104.) Police found Ruth Weir’s white Ford Taurus on the evening of December24, 1995,in the parking lot of the Wesco Auto Parts store located at 1705 West Garvey in West Covina. The car was locked. The keys were in the ignition. The car’s stereo was missing and theleft front fender was damaged. Thecar wasreturned to Mrs. Weir. (8RT 3090-3091, 3109-3112.) A neighbor who lived on Swanee gave the bag of commemorative coins to Mrs. Weir about a week after the robbery. (8RT 3089-3090.) Mrs. Weir attended three lineups on March 4, 1996. She did not positively identify anyone from the lineupsas being involvedin the robbery. (8RT 3090.) 4. Drebert And Vera Possess Ski Masks And Gloves WhenStopped By Police On January 6, 1996 On January 6, 1996, around 2:27 p.m., City of Montebello Police Officer Ron Santo stopped a beige Buick with a dark beige or browntop, bearing license plate number 2WKN135. (8RT 3115-3116.) Officer Santo identified People’s Exhibit 6 as depicting the car he stopped on January 6, 1996. (8RT 3116.) Jessica Rodriguez, Drebert, and Vera wereinside the vehicle. Jessica was the driver. (8RT 3116-3118.) ° After stopping the car, Officer Santo impoundedit and hadit towed to a police impoundyard. Prior to having the car towed, Officer Santo inspected the passenger compartment. He founda pair ofcotton gloves and a ski mask underthe front passenger seat. (8RT 3118-3119.) Two ski masks were on the back seat of the car. These items were booked as evidence. (8RT 3119- 3125.) 23 On January 8, 1996, three black knit gloves were collected from the front floorboard of the Buick and booked into evidence. (8RT 3128-3133.) 5. Attempted Murder Of Michael Martinez On January 19, 1996 (Counts 15 and 16) a. Michael Martinez’s Association With Amy Benson, And Thereby Appellant The Lido Garden Apartments consisted of two parallel two-story buildings separated by a parking area located between Harbert Street and Dennis Street in West Covina. (4RT 2078-2079.) Michael Martinez resided in Apartment 15 ofthe Lido Garden Apartments. Amy Benson,the pregnant daughter of a family friend, began staying in his apartment around October 1995. Martinez believed that the father of the child was Martinez’s prior roommate, who had moved to Washington. Martinez did not have a romantic relationship with Amy Benson. (4RT 2158-2160, 2165.) Amy Benson was also called “Gabby.” (8RT 3136.) In November and December 1995, appellant, Drebert, Pritchard and Vera were staying with Joanna and Jessica Rodriguez in an apartment on the Harbert side of the apartment complex. (4RT 2162-2164.) When Martinez saw appellant around the apartment complex, he was ordinarily with Pritchard, Drebert, and Vera. (4RT 2164.) Martinez heard Drebert, Pritchard, and Vera call appellant, “Dad.” (4RT 2165.) Martinez had never goneto the apartment of Joanna and Jessica Rodriguez to drink with appellant. (SRT 2240.) Amy Benson sometimesbabysat 12-year-old Justine at Martinez’s apartment. (SRT 2241.) In January 1996, Amy Benson hung around the complex with appellant, Pritchard, Drebert and Vera on a near daily basis. (4RT 2165.) Amy’s association with the men created problems because the owner 24 threatened to evict Martinez if Amy continuedto associate with them. (4RT 2166.) In December, Martinez told Amythat appellant, Pritchard, Drebert and Vera were no longerallowedinside his apartment because Martinez and Amy would be evicted. The mencontinued to visit the apartment. (4RT 2166- 2168.) In early January 1996, Martinez told appellant that he did not want appellant hanging around his apartment. (4RT 2167.) The men did not come over for a few days, but then the visits resumed. (4RT 2168-2169.) Martinez did not-trust appellant and feared him because appellant looked like a gang member. (4RT 2169.) The car depicted in People’s Exhibit No. 6 was driven by Joanna Rodriguez in January 1996. Martinez had seen appellant driving that car. He had also seen appellant in the car with Pritchard, Vera and Drebert on many occasions. He saw Drebert driving the car on 10 occasions with Jessica or Joanna Rodriguez. Martinez did not see Vera or Pritchard drive the car. (4RT 2216-2218.) . b. Detention Of Pritchard On January 16, 1996 On January 13, 1996, West Covina Police Officer Laurie Pruitt, who was investigating a report of a suspicious personloitering, detained 14-year- old Eric Pritchard outside the Lido Apartments. (4RT 2146-2148, 2151; IV - Supp 2CT 350-352 [Peo. Exh. 4 (photograph)].) Michael Martinez saw the detention occur. (4RT 2170-2171.) Officer Pruitt took Pritchard to the police station because he was reported as arunaway. Atthe station, she discovered that he had a warrant for traffic violation. Officer Pruitt contacted the - authorities responsible for the warrant and wasinstructed to issue a citation and a promise to appear. (4RT 2149, 2152.) Officer Pruitt completed a booking report recording the address information Pritchard provided, 3241 Frazier Street, Number 6 in Baldwin Park. | (4RT 2149-2151.) When 25 Pritchard’s mother, Lisa Lucero, picked him up from thestation, she provided the same address information. (4RT 2151-2152.) Officer Pruitt recorded Pritchard’s height as five-feet, nine inches and his weight as 150 pounds. (4RT 2152.) c. Martinez Is Ambushed By Appellant, Pritchard, Drebert And Vera In His Apartment On January 19, 1996 During the week prior to January 19, 1996, Martinez saw appellant, Drebert, Vera, and Pritchard in his apartmentnearly every day. Each time he saw them in his apartment, Martinez told them that he was goingto be evicted and that they were not allowed on the property. (4RT 2172-2173.) On January 19, 1996, Martinez arrived at his apartment around 6:30 p.m. Amy Bensonwasin the living room. Martinez ate and went downstairs. Whenhereturnedto the apartment, Amy was gone. Martinez did not lock his front doorso that Amy could enter. (4RT 2173-2174.) Martinez got in the showeraround 8:00 p.m. and dressed in the bathroom with the doorclosed. At that time, the curtains on the windows facing Dennis Place were open. (4RT 2174.) When Martinez exited the bathroom, appellant, Pritchard, Vera, and Drebert were inside the apartment. (4RT 2175-2176.) None of the men had Martinez’s permission tobe inside his apartment. (4RT 2179.) Appellant stood in the center of the apartment. Pritchard sat on the floor. Drebert stood near the front door and rammagedthroughthe long closet that ran the length of the apartment wall. Vera stood near the living room window and rummaged through Martinez’s desk and the closet. The curtains were closed. (4RT 2176-2178.) Appellant told Martinez to sit on the couch. Appellant’s tone was angry and aggressive. Martinez was scared and complied. (4RT 2178-2179.) Drebert lockedthe apartmentdoorand looked throughthe peep- 26 hole toward the outside. (4RT 2179-2180.) Vera periodically looked out the apartment window by movingthe curtain aside. (4RT 2180.) Appellant accused Martinez of calling the police on Pritchard. Martinez denied it. Appellant repeated, “We know it was you.” Martinez replied, “It wasn’t me. It might be the manager.” Drebert held up a set of keys that had been on Martinez’s dresser and asked Martinez what keyfit the ignition ofMartinez’s car. (4RT 2181-2182.) Martinez noticedthathis keys, his pager, some change, and a watch were missing from his dresser. Martinez told Drebert the information he wanted. (4RT 2182.) Appellant then struck Martinez very hard in the jaw with his fist. The force of the blow tore Martinez’s lower lip and knocked Martinez backward. (4RT 2183.) | Appellant asked Martinez how much money he had in the apartment. Martinez responded that he had a few hundred dollars. Appellant said he would kill Martinez if he found money exceeding that amount in the apartment. (4RT 2183-2184.) Appellant again stated that he knew Martinez hadcalled the police on Pritchard. Martinez again denied he hadcalled the police. (4RT 2185-2186.) Appellant said that Pritchard wantedto kill Martinez. Pritchardlifted his shirt and revealed the butt of a gun. (4RT 2186-2187.) Pritchard smiled at Martinez. Vera approached Martinez, leaned toward him, and yelled at him. (4RT 2187-2188.) Atappellant’s direction, Drebert removed somebelts from the closet and gave them to appellant. While Martinez was seated on the couch,appellant used the belts to bind Martinez’s arms behind his back and to bind his legs. (4RT 2188-2190.) Drebert stood guard by the front door, and Vera continued to keep watch outthe front window. (4RT 2189.) After Martinez wastied up, Pritchard got up and struck Martinez twice in the face, causing him to bleed. (4RT 2190.) . 27 Martinez had three baseball bats in his closet. Drebert removed a wooden bat from the closet and handedit to appellant. (4RT 2192-2193.) Drebert gavea shirt or towel to appellant, who placed it over Martinez’s head. (4RT 2191-2192.) Martinez could still see somewhat despite the towel. Martinez saw Veraretrieve a black aluminumbatfrom the closet. (4RT 2193- 2195; SRT 2236.) Martinez felt one blow to his head. The next thing he remembered was waking up in the hospital. (4RT 2195-2196.) No gag was placed in his mouth while he was conscious. (4RT 2224.) d. Discovery OfA Gravely Injured Martinez By His Neighbors Jose Canales, one ofMichael Martinez’s neighbors, had seen appellant around the Lido Apartmentson nearly daily basis prior to January 19, 1996. Appellant was staying with someone wholived on the Harbert Street side of the complex. (4RT 2109, 2125.) Appellant associated with Amy Benson, wholived in the complex. (4RT 2125.) Canales often observed appellant in the companyofthree young men: Pritchard, codefendant Drebert, and Vera. (4RT 2126-2129.) Canales had seen appellant riding in the car depicted in People’s Exhibit No. 6 with the woman wholived in the complex. (4RT 2137-2139.) He had also seen Pritchard and Verain the car on several other occasions. (4RT 2139-2141, 2144.) As he returned to the complex around 8:00 p.m. on January 19, 1996, Canales saw Martinez’s white Ford Thunderbird parked in the cul-de-sac behind the apartments. Canales also saw Amy Benson outside the area of Martinez’s apartment with a hand-held phone. (4RT 2110-2112, 2130-2131, 2133-2134.) After going for a walk, Canales saw a neighbor and the manager’s daughter running back and forth at the street level; they appeared 28 upset.and agitated andsaid to call 911 because Martinez was dead. (4RT 2112-2114.) Canales told them that Martinez could not be dead because he had just seen his car. Canales walked around the building and saw that Martinez’s car was gone. (4RT 2115.) Canales went to Martinez’s apartment; the front door was locked. Canales used the manager’s keys to open the door. (4RT 2114-2116.) Canales could not see anything at first because the apartment was “pitch dark.” No lights were on inside the apartment and the curtains were closed. He then saw Martinez lying onthe carpet and saw a wet spot aroundhishead, which he immediately believed to be blood. He shouted to the girls to call 911. (4RT 2116.) Canales switched on the light and saw Martinez’s elbows were tied behind his back with a belt and his legs were tied with three belts—one aroundhis thighs, one around his knees and a third around his ankles. (4RT 2117-2118.) Martinez’s face looked deformed. A wadded bandanna wasstuffed in his mouth and held in place with a piece ofrag tied | tightly around his head. (4RT 2118, 2123.) Canales cut the belts offMartinez with knives taken from the kitchen. Hecut the rag offMartinez’s mouth and removed the bandanna. Several teeth cameout with the bandanna. (4RT 2119.) Canales believed Martinez might be choking on moreteeth or blood, so he turned Martinez’s headto the side. He also removed the belts from Martinez’s legs. (4RT 2120.) He moved Martinez’s arms out from his bodyto aid the circulation. (4RT 2122.) Canales noticed a cut to Martinez’s neck. (4RT 2123; Peo. Exh. 1-B [photo of wound].) e. Police And Medical Response West Covina Police Officer Dario Aldecoa responded to Apartment 15 of the Lido Apartments around 8:05 p.m. (4RT 2081-2082, 2100.) As he 29 - approachedthe apartment, he heard people yelling and saw a groupoftenants standing in the open doorway of Apartment 15. Approximately five people were inside the apartment, right inside the doorway. (4RT 2084.) Officer Aldecoa saw Michael Martinez lying face upin the living room in a pool of blood. Jose Canales was kneeling next to Martinez and was applying pressureto a four-inch laceration on Martinez’s neck. Martinez had numerous bumpsonhis face, his eyes were swollen shut, and teeth had been knocked out of his mouth and were lying next to him on the carpet. (4RT 2085-2086, 2902-2093.) A wooden baseball bat was leaning against the couch. (4RT 2087, 2120.) The top eight to ten inchesofthe barrel portion of the bat was covered in blood. (SRT 2290.) Martinez’s injuries appeared consistent with having been inflicted by a bat. (4RT 2087.) Martinez was unconsciousand gasping for air. There was blood on the carpet around Martinez’s head, a blood-soakedrag lying beside him, and two or three men’s belts on the carpet. (4RT.2086-2087, 2091-2092; Peo. Exh. 1A [photo depicting belts and bloodstains ].) Canales renderedfirst aid until paramedicsarrived. (4RT 2087, 2103-2104.) The officers removed everyone else from the apartment. After the paramedics arrived, Canales was taken outside the apartment and interviewed. Officer Aldecoa remainedinside the apartment while paramedics treated Martinez. The paramedics cut off Martinez’s blue t-shirt and rolled him onto his stomach. Officer Aldecoa observed several puncture wounds to Martinez’s upper back consistent with having been stabbed with a screwdriver. (4RT 2086, 2088, 2094, 2099; Peo. Exh. 1D [photo of back].) A screwdriver with blood on it was found on the couch. (4RT 2099, 2105-2107.) Almost the entire shank portion ofthe screwdriver had blood on it. (SRT 2288.) The paramedics transported Martinez to the hospital. (4RT 2088-2089, 2093-2094.) 30 A white porcelain angel (Peo. Exh. 18; 5RT 2286) was found below the television set; but it was not labeled or collected at the time. Later, it was seized and booked into evidence. (SRT 2280.)'/ f. Martinez Recovers And Identifies His Attackers When Martinez awokein the hospital, there were metal staples running up both sides of his head and from the top of his head down the back toward the neck. He was missing nine teeth and had multiple stab woundsto his back. (4RT 2198-2199.) His eyes were bruised and swollen. (4RT 2202.) He hada four- or five-inch cut on his neck that required stitches to close. (4RT 2203.) His ear drum was damaged. (4RT 2204-2205.) Martinez spoke with Detective Ferrari and his partner after he had been ~ hospitalized for four days. Martinez identified appellant, Drebert, Vera and Pritchard as his assailants from photographs. (4RT 2206-2210; Peo. Exh. 8 [6-pack with appellant and Jason], Peo. Exh. 9 [6-pack with Pritchard and Drebert]; 4RT 2207-2208.) On January 19, the physical appearances of Pritchard, Vera, Drebert and appellant matchedthat in the photographs. (4RT 2210-2211.) Martinez washospitalized for seven days. (ART 2196.) Mostof the stitches were removedand bruising resolved in about a month. (4RT 2205.) Martinez had 12 root canal surgeries to repair the damageto his teeth and mouth. He suffered a temporary 60 percentloss of hearing after the beating and suffered permanent damageto his sense of smell. (4RT 2200.) 11. The ceramic angel was oneofsix taken from Ruth Weir’s house on December23, 1995. (8RT 3086.) 31 g. Recovery Of Martinez’s Vehicle . On January 19, Martinez owned a 1977 white Ford Thunderbird with _a brown top bearing a New Mexicolicense plate. (4RT 2211, 2215-2216.) WhenMartinez entered the showeron the evening ofJanuary 19, his car was parked on Dennis Place directly across the streetfrom the apartment complex. (ART 2211.) At that time, a black backpack (Peo. Exh. 14 [backpack]) was on the rear seat ofMartinez’s car. The backpack contained papers,bills, keys to a truck at work, a personal organizer (Peo. Exh. 15 [organizer]), and a wallet containing his driver’s license, credit cards, and $300. (4RT 2211- 2213; SRT 2236-2239.) No one had permission to drive Martinez’s car away from the parking place on Dennis Place. (4RT 2213.) Around 4:45 a.m. on Sunday, January 21, 1996, West Covina Police found Martinez’s 1977 white Ford Thunderbird parked in a small strip mall . located at 2145 West Garvey Avenue. (SRT 2295-2296.) The vehicle was unlocked, and the keys werein the ignition. (SRT 2296.) 6. Arrest Of Appellant, Drebert, Pritchard, And Vera At Gladys Santos’s Apartment On January 19, 1996 Between 6:00 and 7:00 p.m. on January 16, 1996, Olga Rodriguez, the managerof the Lido Apartments, saw appellant, Pritchard, and two “cholo type gang members”riding in a red Camaro bearing license plate number 2VPF426 in the area of Harbert Street and Dennis Place. (SRT 2244.) Around 9:00 p.m. on January 19, 1996, West Covina Police Officer Don Preston and his partner, Officer Cirrito, responded to a radio call -conceming an assault at the Lido Garden Apartments. The dispatch also indicated that persons who may have been involved in the incident were - driving a red Camaro bearing license plate number 2VPF426. (SRT 2246.) As Officers Preston and Cirrito patrolled the area looking for the vehicle, other officers summoned them to a large apartment complex located at 2001 32 West Garvey in West Covina. Approximately a half mile separated the West Garvey apartment complex from the Lido Garden Apartments complex. (SRT 2247.) Pritchard wasdetained by officers as he attempted to drive out of the complex in the red Camaro. (SRT 2247-2250.) After initially directing the officers to Apartment 15, Pritchard led Officer Preston and other officers to Apartment 38. (SRT 2250-2251, 2262-2263.) Officer Preston knocked onthe door to Apartment 38, and Gladys Santos openedit. Pritchard was standing next to Officer Preston. Ms. Santos denied any knowledgeofPritchard. (SRT 2251-2252.) In response to questioning, Santos represented that the only people in her apartment were the children and two teenagers in her living room. Officer Preston asked permission to search the apartment, and Santos consented. Apartment 38 was a two-level apartment. (SRT 2252-2253.) AS the officers walked toward the stairs, Officer Preston heard a door slam upstairs. The officers evacuated Santos, four children, and two teenagers from the lower level of the apartment. The officers then ordered the occupants of the second level to come downstairs. (SRT 2253.) Vera came downfollowed by Drebert. (SRT 2254-2255.) Then teenage female came down. Appellant wasthe last person to descend. (SRT 2255.) The officers arrested Santos for delaying an officer in the performance of his duties. (SRT 2257.) The basis for the misdemeanorcharge washer. denial that the suspects were present in her apartment. (SRT 2258.) The officers arrested appellant, Vera and Drebert for vehicle theft. (SRT 2257.) Justine Capistrano wasturned overto the Department of Social Services. (SRT 2317-2318.) Appellant, Vera, Drebert, and Pritchard were photographed at the West Covina Police Department in booking clothing. (SRT 2256, 2258-2259; Peo. Exh. 4 [Jan 19, 1996 photo of Vera]; Peo. Exh. 33 5 (Jan. 19, 1996 photo of Pritchard]; Peo. Exh. 16 [Jan. 19, 1996 photo of appellant]; Peo. Exh. 17 [Jan. 19, 1996 photo of Drebert].) Around 9:30 p.m. on January 19, 1996, Detective Ferrari spoke with Gladys Santos, who wasin custody at the West Covina Police Departmentfor delaying a police officer in the performanceofhis duties. (SRT 2301-2302.) Detective Ferrari obtained consent from Ms.Santos to search her apartment located at 2001 West Garvey Avenue, number 38. Detectives arrived at the apartment around 1:00 a.m. on January 20, 1996, and searched the apartment for evidence pertainingto the assault on Michael Martinez. (SRT 2302-2303.) On the balconyin the kitchen eating area, the detectives found a white trash bag containing items that belonged to Martinez, including a backpack (Peo. Exh. 14), a wallet, and identification (Peo. Exh. 12). (SRT 2303-2305.) The detectives also searched the two upstairs bedrooms. (SRT 2305-2306.) A wallet containing a registration receipt bearing the name “John Capistrano” and other papers was discoveredin a dresser drawerin the smaller bedroom. (SRT 2306-2307.) When bookedinto custody, Drebert provided a homeaddress of 3241 Frazier, number F, in Baldwin Park; Pritchard provided a homeaddress of 3241 North Frazier, Number G, in Baldwin Park; and Vera provided a home address of 3249 Frazier, Number C in Baldwin Park. (SRT 2259-2262.) Gladys Santos was givena ticket and released from police custody on January 20, 1996, based upon her promise to appear. (SRT 2307-2308, 2312.) Her case for interfering with a police officer was presented to the District Attorney’s Office but did not meet the requirements for filing an offense. (SRT 2308, 2312.) It was rejected for filing within four or five days of January 19, 1996. (SRT 2317.) 34 7. Gladys Santos Inculpates Appellant In All Of The Crimes In October 1995, Gladys Santos met appellant, who used the nicknames, “Johnny” and “Giant,” at the home of her friend, Joanne Rodriguez, in the Lido Apartments in West Covina. (SRT 2424, 2427-2428.) Santos met Drebert and Pritchard, who usedthe nickname,“Little Giant,” the next day at Rodriguez’s apartment; they were with appellant. (SRT 2424- 2425, 2429.) Drebert and Pritchard called appellant, “Dad.” (SRT 2427- 2428.) Appellant introduced Drebert and Pritchard as Justine’s “big brothers.” (6RT 2540.) Santos met Vera in late December 1995. He was with Drebert. (SRT 2425-2426, 2429.) Santos twice purchased a quarter gram of methamphetamine for appellant in October 1995. On the first occasion, Drebert picked up the drugs. On the second occasion, appellant’s sister, Rebecca, picked up the drugs. (6RT 2518-2520.) Beginning in December1995, Santos kept Justine, whom she believed at the time to be appellant’s daughter, three days a week. Appellant cameto Santos’s apartment to drop offand pick up Justine. Sometimes Drebert and/or Pritchard were with him. (6RT 2543-2544.) Most ofthe time, Jessica drove appellant. (6RT 2545.) In December 1995 and January 1996, Santos saw | appellant, Drebert, and Pritchard on a regular basis. (SRT 2426.) She saw Vera with them on two occasions. (SRT 2426-2427.) During the period including November 1995 through January 1996 Santos resided in Apartment 38 located at 2001 West Garvey. From December1995 through January 1996,Justine lived with Santos. (SRT 2430- 2431.) Santos’s niece, the niece’s boyfriend, and Santos’s children also resided in Apartment 38. Appellant visited Justine at Santos’s apartment approximately once a week. (SRT 2431.) Appellant stayed at Santos’s apartmentonthe three nightspriorto hisarrest. (SRT 2431; 6RT 2553-2561.) 35 It was a two-bedroom apartment. Only one bedroom,the one occupied by Santos, had a bed in it. The other bedroom wasoccupied by Santos’s niece. In December1995,Justine slept in the other bedroom in a sleeping bag on the floor. (SRT 2432.) Whenappellant stayed overnight, he stayed in the room with Justine and Santos’s niece. (SRT 2432-2433; 6RT 2553.) Drebert never spent the night at Santos’ apartment. (6RT 2554.) a. Events Of January 19, 1996 Santos was arrested on January 19, 1996, at her apartment when appellant, Drebert and Vera werealso arrested. (SRT 2443-2444.) Earlier that evening, appellant, Pritchard, Vera, and Drebert had left the apartment and returned around 8:30 or 9:00 p.m. (SRT 2453-2454.) Appellant told Santos that he had “played baseball with Mike’s head.” (SRT 2454-2455.) Santos understood appellant to mean Michael Martinez. (SRT 2455.) When the police cameto her apartment, appellant was there. Appellant had arrived with Drebert. Vera and Pritchard arrived separately. Justine had been at the apartment with Santos and had been staying with Santos for more than a week. (6RT 2560-2561.) Pritchard hadleft the apartment 20 minutes before the police arrived. The police brought Pritchard to the apartment doorjust prior to Santos’s arrest. (6RT 2698.) b. Stolen Property From The J.S./E.G. Robbery Appellant brought a telephone answering machine (Peo. Exh. 22) to Santos’s apartment in December 1995. (6RT 2520-2521.) The machine had been in the bedroom in which Justine slept. (6RT 2521.) When appellant brought over the answering machine, he also brought a dark gray Spectra laptop computer and a video rewinderto the apartment. The screen of the computer flexed whenit was touched,felt like jelly, and the screen around the touched area turnediridescent colors. (6RT 2522-2524.) Santos did not see 36 anyonedropit off, but appellant askedher aboutthe laptop during a telephone conversation, and Santos went to the refrigerator and opened the box. (6RT 2562-2564.) The laptop computer stayed at Santos’s apartment for approximately one week until Drebert took it away. (6RT 2524-2525.) On January 23, 1996, Detective Ferrari and three other detectives went to Ms. Santos’s apartment and again spoke with her. (SRT 2308-2309.) During the interview, Ms. Santos gave Detective Ferrari a telephone answering machine (Peo. Exh. 22 [Panasonic answering machineserial no. 1CAHF150488].). (SRT 2309-2310; 6RT 2521-2522; 8RT 3151-3152.) Attrial, J.S. identified the answering machine as having been taken from her residence on December 15, 1995; the serial numberon the machine matched the numberlisted on herrepair receipt. (RT 2971-2972, 3020.) c. Stolen Property From The Weir Robbery Appellant brought some jewelry (Peo. Exh. 31 [photograph]) to Santos’s apartment in December 1995. (6RT 2525-2526.) The jewelry was in a cup in the bedroom Justine used. (6RT 2527.) Santos gave the jewelry to Detective Ferrari in January 1996. (6RT 2526-2527; 8RT 3152-3153.) Ms. Santos cameto the police station on her own and wasnot underarrest. She wasnot in custody and had not been charged with a crime. (8RT 3153.) Thejewelry was returned to Ruth Weir. (8RT 3087-3088, 3091, 3153- 3154.) d. Appellant’s Admissions To Santos Concerning The Murder Of Koen Witters In December 1995, Santos had a conversation with a civilian who claim to have been present when a murder was committed. (SRT 2433- 37 -PentomtrttanataNTOESCINoae eO acete mr toen aoe oe Sete 2434.)The conversation occurred on the speaker’s birthday, which was prior to Christmas. (SRT 2434.) Three days after this conversation, Santos asked appellantabout the murder. The conversation occurred in Santos’s apartment. (SRT 2435.) Santos asked appellant, “Is it true? Didyoureally kill somebody with a belt?” (SRT 2436.) In response, appellant laughed. Santos asked him again,“Is it true?” Appellant replied, “That pussy Mike told you, huh?” (SRT 2438.) Santos replied, “No.” Appellant stated that Mike was weak. Santosagain deniedthat “Mike” had told her. Santos asked,“Did you really do that?” Appellant replied, “Yes.” Santos then asked, “Whydid you do it?” Appellant changed the subject. (SRT 2439.) Later, after Santos again resumedthe subj ect, appellant shared details and demonstrated for Santos how hehad useda belt to kill someone. (SRT 2439-2441.) Appellant said the murder occurredin an apartment“they had been watching”in order to commit a robbery. (SRT 2441.) Appellant said the victim had been shaving, and he killed the person because he had seen _ appellant without a mask. Hestrangled the person because using a gun would be too loud. Appellant said he was with Drebert and “Little Giant” whenthe murder occurred. (SRT 2442.) Appellant said that after he attempted to strangle the victim, he left the room. When he returned, the victim was not dead. Appellant called Mikeinto the room to hold one endofthe belt because “the motherfucker wouldn’t die.” Appellant initially said he “shanked” the 12. Appellant’s counsel elicited additional information about this - conversation during cross-examination. (6RT 2548-2551.) Several days before Christmas 1995, someone knockedon the door to Santos’s apartment and she answered. Twopeople were outside, and she let them in. The person whotold her about the murder appeared to have been drinking. She described him as “marinated.” The person said “they” had been scoping a residence and appellant had seen the person shaving. (6RT 2548-2550.) Hetied the victim at appellant’s direction. The victim likedto travel, liked Europe, liked Asian women,and waspreparing to travel. (6RT 2550.) Heassisted in strangling the victim. (6RT 2550-2551.) 38 victim. Later during the conversation, appellantsaid,“Well, the motherfucker wouldn’t die, 50 Icut him.” (SRT 2443.) After the conversation about the murder, Santos had a telephone conversation with appellant about a desktop Apple MacIntosh computer. (SRT 2447, 2461.) Appellant asked if Santos knew anyone who wantedit. Appellant described the computer to her and said it had everythingonit. (SRT 2447-2448.) This phone conversation occurred before Christmas. (SRT 2449.) Aboutone weekpriorto her arrest on January 19, Santos again asked appellant about the murder becauseshe did not believe it was true. (SRT 2443-2445.) Appellant confirmed it was true. (SRT 2445.) When Santos asked how he couldkill a person they had become acquainted with, appellant said, “We didn’t get to know him. He’s just somebody that liked Asian pussy.” (SRT 2445, 2447.) Appellantalsosaidthatthe person “liked to travel to Europe.” (SRT 2447.) Previously, the person whooriginally told Santos about the murder had said that they had talked to the victim prior to the murder. (SRT 2446.) e. Appellant’s Admissions To Santos Concerning The Weir Robbery Onenight, appellant called Santos and asked her to pick him upat a location near the Lido Apartments. (SRT 2450.) Santos asked appellant what he had been doing. Appellant said, “We just robbed somebody.” Appellant then directed Santos to a residence in West Covina. Hetold herthat a police officer lived in the house. (SRT 2449-2450.) The house was near a school and was approximately four blocks from the Lido Apartments. (SRT 2451.) Appellant also said they had taken the Christmas presents, a white car, arid groceries during the robbery. (SRT 2453.) Appellant also directed Santos to a location where he said he had hidden somecoins and other items he had 39 taken from the residence. (SRT 2450, 2452.) Appellant got out ofthe car and picked up a branch. Hereturnedto the car and said nothing was there. (SRT 2452-2453.) f. Santos’s Revelation OfAppellant’s Admissions To Police Between her arrest in January 1996 and her conversation with Detective Ferrari in May 1996, appellant contacted Santos many times. He told her that he loved her and told her not to say anything. During the last few contacts, he said he had heard that she was a snitch. He threatened to kill her if she told anyone, but then said he would kill her sons instead. (SRT 2457- 2458; 6RT 2694.) Santos believed him. (SRT 2457.) Appellant began threatening her in February. The calls and threats became more frequent and more serious over time. (6RT 2570.) Appellant left nasty messages on her phone. (SRT 2459.) Appellant threatened to kill her children in late March or April, before Easter. (6RT 2571.) Santos accepted collect calls from appellant becauseshe wasafraid appellant would hurt her family andkill her- children. (6RT 2696.) Santos feared that refusing to accept his calls would suggest to him that she had turned him in or was cooperating with the police. (6RT 2696-2697.) Santos ultimately told the police because shefelt guilty and was afraid. (SRT 2457-2458.) On May15, 1996, Detective Ferrari wentto Santos’s apartmentat her request. (6RT 2572; 8RT 3154.) When hearrived, Santos was crying and appeared to be upset and to have been crying for some time. (8RT 3154- 3155.) Detective Ferrari listened to a message that was recorded on Santos’s voice mail. He recognized the voice as belonging to appellant. In the message, appellant said that he had received copies of police reports stating that she had talked to the police. He was going to send her copies of the reports and “he was gonna see what he had to do.” (8RT 3155.) As of May 40 15, 1996, Santos had not provided the West Covina Police Department with any significant information relevant to the Michael Martinez investigation or the other robberies being investigated by West Covina police. (8RT 3155- 3156.) She had previously provided the telephone answering machine and the gold chains belonging to Ruth Weir and had mentionedthat appellant had asked her aboutselling a large desktop Apple Macintosh computer. That — information was documentedina police report. (8RT 3156-3157.) The report authored by Detective Ferrari prior to May 15 had been provided to the defense for purposes of discovery in the criminal prosecution. (8RT 3159.) Santos provided Detective Ferrari with information regarding the murder that occurred in Rowland Heights on May 21, 1996. (8RT 3158- 3159.) At the time Santos told Detective Ferrari about appellant’s statements admitting he had killed someonewith a belt, Santos was not underarrest and was not charged with anything. She did not tell the police about these statements prior to May 1996 because she was afraid of appellant. (SRT 2455-2456.) Santos was on misdemeanor probation when she spoke to Detective Ferrari at the West Covina Police Station in May 1996. (6RT 2518.) The District Attorney’s Office helped Santos relocate in June 1996 because Santos had been threatened by appellant. The police or District Attorney’s Office paid the security deposit for Santos’s new apartment. She paid the rent and utilities. (6RT 2527-2528.) Santos asked for assistance relocating on June 18. Relocating was not discussed during her May 1996 conversation with Detective Ferrari. (6RT 2545-2546.) 8. Proximity Of Relevant Locations Asof October 1996, appellant’s mother resided at 11149 Loch Avon Drive in Whittier, California. On January 19, 1996, when appellant was arrested for the attempted murder of Michael Martinez, appellant gave his 41 NittaeiTINYaLamnartncce MST aR AL ON mother’s address to the West Covina Police Departmentbookingofficeras his residence address. (8RT 3137.) The residence of J.S. and E.G. was within two miles of 11149 Loch Avon Drive. (8RT 3143.) The apartments located at 3249 Frazier Street and 3241 Frazier Street in Baldwin Park — the home addresses provided by Drebert, Pritchard and Vera when booked on January 19, 1996 (SRT 2259-2262) — were within the same apartment complex. (8RT 3144.) The residence at 12702 Salisbury Street (where J.S.’s Honda was recovered) waslocatedat the intersection of Salisbury and Syracuse Street in Baldwin Park in a neighborhoodofsingle family residences. (8RT 3145.) Ruth Weir’s car was recovered from 1701 West Garvey in West Covina (Wesco Auto Parts), which is near Gladys Santos’s apartment at 2001 West Garvey. (8RT 3160-3161.) Martinez’s vehicle was recovered at 2145 West Garvey Avenue. (SRT 2295-2296.) That location is approximately two blocks from the apartment complex located at 2001 West Garvey Avenue where Gladys Santos resided. The Lido Garden Apartments are located within a half mile of 2145 West Garvey Avenue. (SRT 2297.) Ruth Weir’s residence wasless than a half mile from the Lido Apartments. (8RT 3161.) B. Defense Evidence Twenty-two-year-old Jessica Rodriguez and Joanne Rodriguez were sisters. Appellant was their cousin. (QRT 3280-3281 .) Jessica’s grandmother wasalso appellant’s grandmother. (QRT 3301.) Jessica’s grandparents lived on Moral Street in Whittier, and her grandmotherlived in the same houseat the time of trial. (ORT 3300.) Appellant was five or six years older than Jessica. (Q9RT 3295.) Jessica had known appellant her entire life. (9QRT 3290.) She grew upliving acrossthe street from the house in Whittier where he lived with his mother and his father. (QRT 3292, 3295.) When Jessica was 42 around six years old, appellant and his mother moved to El Monte. Atthat time, appellant was around 11 years old. QRT 3295-3296.) In October 1995, appellant began to reside with Joanne and Jessica in their apartment on Garvey in West Covina. (QRT 3280-3281.) Jessica and Drebert met and began dating in December 1995. She saw him nearly every day. Drebert was always withappellant. (QRT 3283, 3287.) Drebert called appellant, “Dad.” (9QRT 3284.) Drebert, appellant, Vera and Pritchard stayed in the apartment with Jessica and Joanne. (QRT 3287.) From early December until January 16, when she saw Drebert, he was with Pritchard, Vera, and appellant. (QRT 3285-3287.) Michael Martinez came to the Rodriguez’s apartment with appellant and ate or drank beerin the apartment on several occasions. Martinez visited both the interior of the apartmentandthe patio of the apartment — probably in November 1995. (9RT 3281, 3289.) Ona few occasions when Martinez visited the apartment, Jessica saw appellant and Martinez walking together from Martinez’s apartmentto her apartment. Othertimes, Martinez wasalone and appellant was already inside Jessica’s apartment. (9RT 3290.) Jessica and Joanne were evicted from their apartment in early December 1995. (QRT 3281, 3288.) Shortly thereafter, Martinez volunteered to allow Jessica, appellant, Drebert, Pritchard, and Justine to stay at his apartment for a couple ofnights. (QRT 3281-3282.) Jessica stayed in Michael Martinez’s apartment on several nights after she and hersister were evicted. (ORT 3288.) To Jessica’s knowledge, Justine was not appellant’s biological daughter, but hetreated her as a daughter. (QRT 3283, 3287-3288.) In December 1995 and on January 16, Jessica Rodriguez ownedthe car depicted in People’s Exhibit 6. (QRT 3292-3293.) Jessica’s mother, Theresa Wheatley, gave Jessica the car. No one else had access to or used the car. 43 Jessica kept the keys to the car in her purse. During the period while Vera, Pritchard, Drebert and appellant stayed in Jessica’s apartment, she kept her purse downstairs whensheslept upstairs. (QRT 3293-3294.) On December 9, 1995, Jessica was with Drebert for part of the afternoon and againlater in the evening after it was dark. (QRT 3301-3302.) Drebert drank Jack Daniels and beer that evening over a couple of hours. (QRT 3297-3298.) When Jessica saw Drebert drinking, he was able to walk and talk withoutslurring his speech. (QRT 3294-3295.) On January 16, 1996, Jessica was arrested in Montebello with Vera and Drebert. Jessica stopped associating with them becausethe detective told her that he would have her daughter taken away. Some ski masks were found in Jessica’s car during the arrest; the masks caused Jessica to believe that they were involved in somethingthat she should not be around. (QRT 3286-3287.) After the arrest in Montebello, Jessica once visited with Drebert at Lisa Lucero’s apartment in Baldwin Park. (QRT 3305-3306.) Lisa Lucero was appellant’s girlfriend for many years. (QRT 3308-3309.) She lived on Frazier Street. Eric Pritchard is Lisa Lucero’s son. Michael Drebert lived with Lisa Lucero before he began to live with Jessica and Joanne. (QRT 3307-3308.) William Vicary, amedical doctor specializing in psychiatry, physically examined appellant on August 12, 1997, and reported his findings. (9RT 3318-3332.) II. Penalty Phase Evidence A. Prosecution Evidence Certified documents from the California Department of Corrections indicate that appellant was convicted of a felony, sale of marijuana, on December 13, 1989, and felony taking of a vehicle without consent on September 9, 1994. (11RT 3929; Peo. Exh. 55 [certified documents].) 44 1. Attack On Los Angeles County Jail Inmate Victor Rodela On June 4, 1994 At appellant’s trial, Victor Rodela was serving an 1 1-year state prison sentence for carjacking. He had a numberofother felony convictions and had been in and out of custody. (11RT 3854-3855, 3860.) Rodela defined a “snitch” as someone whotestified against someoneelse. A snitch could be killed or beaten. (11RT 3858-3860.)*/ On June 4, 1994, Los Angeles County Deputy SheriffGregory Icamen was assigned to the 9000 floor of the Los Angeles County Jail located on Bauchet Street in Los Angeles. Inmates housed on the 9000 floor were awaiting classification; once classified, the inmates were moved to their assigned housing. (11RT 3862.) Dorms 9300 and 9400 were both located on the 9000 floor. (1IRT 3862-3863.) On June 4, 1994, Deputy Icaman investigated an assault upon Victor Rodela in the 9300/9400 dorms. Rodela told him that an inmate -- whom he _ later identified as appellant -- had approached him andsaid,“Thisis a straight dorm. Whyare you here?” Rodela replied that he had not yet been classified. | (11RT 3863-3864.) Appellant then said, “Well, we’ ll classify you then,” and kicked and punched Rodela’s head, face, back, and legs. (1IRT 3868.) Rodela had a swollen and bloody upperlip and complained ofpain to his jaw, back, ribs, and groin. (11RT 3869.) Rodela described his attacker as having _ the name,“Capistrano,” tattooed across his chest andlater identified appellant to Deputy Icaman. (11RT 3864-3867, 3872-3873.) Rodela told Deputy 13. Rodela denied being attacked in the County Jail in June 1994, denied that appellant approached and confronted him about being homosexual, denied that appellant punched him several timesinthe face and body, deniedtelling a deputy that the man whoattacked him had“Capistrano” tattooed across his chest, and denied he had recognized appellant. (11RT 3855-3858.) 45 Icamen that he was homosexual and that several inmates living within the dorm knew his sexualorientation. (11RT 3864.) 2. Attack On Los Angeles County Jail Inmate Ricky Crayton On October 4, 1996 On October4, 1996, Deputy Keen was workingin the security area for Module 3400, the gang module within the Men’s Central Jail. (11RT 3909- 3912.) Inmate Ricky Crayton was working asa “trustee”collecting food trays from the rows in module 3400. After Crayton entered the sallyport to row B, Deputy Keen closed the entry gate and openedthe gate to the row. Deputy Keen saw Crayton bend downinside the gate. Crayton then suddenlyfell back into the sallyport. Crayton was holding his mouth; bloodstreamed between his fingers. (11RT 3912-3915.) Deputy Keen asked what had happened. Crayton replied that he had been kicked in the mouth. (11RT 3916.) Crayton appeared to have a broken jaw and wasbleedingprofusely. (11RT 3918.) Deputy Keen saw appellant and inmate Pineda running downthe row. Deputy Keen called them back and summonedadditional deputies. (11RT 3916-3919.) Deputy Ted Carraisco ordered appellant and Pinedaoffthe row, handcuffed them, and took them to the main floor hallway. (11RT 3919, 3922-3925.) As they walked, Deputy Carraisco asked them, ‘What happened?” Neither responded. Deputy Carriasco sat Pineda on a benchin the hallway and walked with appellant down the main floor hallway. As they. walked, appellant said that he, not Pineda, had kicked the trustee. (11 RT 3925-3927.) Appellant and Pineda had beenservingastrustees that day. As a result of the incident, appellant was placed in a single-man cell without phoneorvisitation privileges. (11RT 3927-3928.) _ 46 3. Appellant’s Threat Against Drebert On December 20,1996 On December20, 1996, Los Angeles County Sheriff’s Deputy William Wenzel was workingas a bailiffat the Citrus Municipal Court located in West Covina, California. When DeputyWenzel brought appellant into a courtroom for an appearancein the case People v. John Capistrano andMichaelDrebert, Drebert and three other inmates were seated in the courtroom’sjury box. Appellant looked at one of the inmates and mouthedthe words,“Get that fucker,” and nodded toward Drebert. (11 RT 4061-4065.) The other inmate — who wasHispanic, had a shaved head,and had prisontattoos — looked at Drebert and then back at appellant. (11RT 4065, 4068.) Because Deputy Wenzel believed Drebert’s life was in danger, he arranged for Drebert’s status to be changed to K-10, meaning “keep-away.” (11RT 4065.) 4. Attempted Murder Of Men’s Central Jail Inmate Mauricio Gonzalez On February 18, 1997 Los Angeles County Deputy SheriffJoe Mendozatestified as an expert on Hispanic prison gangs and Hispanic street gangs. (11RT 4004-4008.) Generally speaking, prison gangsexistto control criminalactivity and provide their membersprotection within the prison system. (11RT 4011-4013.) The Mexican Mafia, also known as “La EME,”is a prison gang that recruits members of Southern California Hispanic street gangs entering the jail or prison system. (11 RT 4008-4009.) La EMEdesignatesitselfwith the number 13 because “M”is the thirteenth letter in the alphabet. Nuestra Familia is a prison gang that recruits members of Northern California street gangs and designatesitselfwith the number14 because “N”is the fourteenth letter in the alphabet. (11 RT 4009-4010.) The Mexican Mafia tendsto recruit from gangs located south of Bakersfield and calls its recruits “surenos” meaning “southern.” (11RT 4010-4011.) Most Hispanic southern California street 47 gangs are sympathizers with the Mexican Mafia. (11RT 4013.) Outside the prison system, Hispanic street gangs often fight one another. Onceinside the prison system, Hispanic gang memberstendto unite along racial lines and claim loyalty to the Mexican Mafia. (11 RT 4014-4015.) The Mexican Mafia also exerts control over the activities of some Hispanic streets gangs outsidethe prisonsbysetting rules for the gangs to follow when they have disputes. (11 RT 4015-4016.) One Mexican Mafia ruleis a “no drive-by rule,” meaning that the Mexican Mafia has orderedthat no shootings occur from cars to avoid killing non gang-affiliated bystanders. When Hispanic gang members violate this rule and comeinto custody, they are placed on a “hit list” and targeted for assault or must pay a monetary tax. (11RT 4016-4017.) The terms “green light” and “in the hat” signify that a person is on a Mexican Mafia hit list targeted for assault. (11RT 4023.) The Mexican Mafia also requires that Hispanic street gangs pay “taxes,” meaning a percentageofthe narcotics sales within the gang’s territory, to the Mexican Mafia. (11RT 4017-4018.) There are different levels of association with the Mexican Mafia. The highest level is member. “Associates” pass messages or make phonecalls for members. A “soldier” enforces rules. “Torpedos”are given tasks, such as to kill or stab someone; they complete the task without regard for the consequences. (11RT 4019-4020.) Southern California Hispanic gang members can showallegianceto the Mexican Mafia through their tattoos. Mexican Mafia members frequently beartattoos with the letter “M”or an Aztec warrior symbolor Mexican eagle. Street gang members may have a tattoo, “Sur Trece Sureno,” meaning “Southern United Raza, thirteen, southern.” (11RT 4021-4022.) A street gang memberwith tattoo “Sur Trece”or “Trece Sureno”signifies allegiance to the Mexican Mafia. (11RT 4022-4023.) 48 Deputy Mendoza was acquainted with appellant, who was a member of the El Monte Flores gang. Appellant has a tattoo, “EMF,” meaning El MonteFlores, on the back of his head. Hehasthe letters “SUR 13”tattooed on the knuckles of his right hand. (11RT 4029-4032.) Appellant’s gang moniker was “Giant.” (11RT 4032.) Jail “kites” are notes inmates write to one another. (11RT 4032.) On October 17, 1996, during a random search ofinmates at the Pomona Superior Court for narcotics, appellant removed a quarter-sized balloon from his | pocket. (11RT 3992-3995.) The balloon containedthreejail “kites.” (11RT 3995-3996; Peo. Exhs. 64 and 65 [photographs ofkites].) One was addressed to “Pelon.” (11RT 3996.) Luis Maciel, a member of the Mexican Mafia currently incarcerated in the County Jail, used the moniker Pelon. Maciel was also a memberof the El Monte Flores gang. (11RT 4033-4034.) Maciel oversaw Mexican Mafia activity in the jail system. (11RT 4034-4035.) This» kite appeared to have been authoredbyappellant becauseitbore the following - valediction: “CMR Giant, EMF,” meaning “Con muchorespectos Giant, El Monte Flores.” (11 RT 3996-3999; Peo. Exh. 63 [photograph ofkite].) In the kite authored by appellant, appellant refers to himself as a solider. Appellant stated he would do anything for Maciel and that he would notbegetting out. (11RT 4035-4041.) On February 18, 1997, the Marvilla street gang was on the Mexican Mafia’s “hit list” because the gang refused to pay taxes to the Mexican Mafia. (11RT 4023-4025.) Becauseofthis situation, Maravilla gang members were specially housed within the Los Angeles County Jail. (11RT 4025-4026.) Members of the Maravilla street gang were segregated from other gang members and housed on Row A and Row C ofModule 3200 so that they would not be attacked by other inmates. (11RT 3942-3943.) 49 On February 18, 1997, Deputy Chapman was escorting inmate Mauricio Gonzalez, a Maravillagang member, backto his cell in Module 3200, Row A. (11RT 3950-3951.) Gonzalez’s hands were cuffed behindhis back and attached to a waistchain. (1IRT 3961.) Deputy Chapman and Gonzalez entered the sallyport providing access to Module 3200 Row A and Module 3400 Row B.Atthat point, Deputy Chapman saw two inmates on Module 3400 Row B. (11RT 3945, 3962-3963.) Deputy Chapman tumed away from Gonzalez to speak with the Module 3200 deputy about Gonzalez’s paperwork. Deputy Chapman heard screamsand deputies yelling. He turned and saw appellant and inmate ArthurFerrell stabbing Gonzalez with shanks. Deputy Chapman and the other deputies in the security cages ordered appellant and Ferrellto stop. Deputy Chapman struckFerrell on the head with a flashlight, and Ferrell fell to the floor. Appellant continuedto stab Gonzalez as Gonzalez moved behind Deputy Chapman, Appellant lunged at Deputy Chapman—who was then between Gonzalez and appellant—with a shank. Deputy Chapman struck appellant with a flashlight when appellant failed to obey commandsto stop. (11 RT 3963-3973.) The other deputies handcuffed Ferrell and appellant and removed them from the module. Gonzalez was taken to the clinic. (11RT 3973-3974.) After the attack, Gonzalez was bleeding from his head and upper torso. (Peo. Exh. 61 [photographs}). Appellant and Ferrell were bleeding as a result of being struck by the flashlight. (11RT 3974-3976.) A “shank’—ajail-made stabbing device—was foundat the gate to Row A ofModule 3200. (11 RT 3974, 3981-3983.) In Deputy Mendoza’s opinion, the Mexican Mafia “hit” on all Maravilla gang memberswas a motiveforthe assault by appellant and Arthur Ferrell upon Mauricio Gonzalez. (11RT 4041-4042.) The parties stipulated that appellant was convicted of attempted murderfor his attack on Gonzalez and found notguilty of assault upon Deputy Chapman. (11RT 3979-3980.) 50 5. Attack On Los Angeles County Jail Inmate Raymond Gonzalez On June 23, 1997 On June 23, 1997, Raymond Gonzalez, who wasbeingheld at the Los Angeles County Jail awaiting trial for armed robbery, was transported to the PomonaSuperior Court to testify as a witness in another case. (11 RT 3841- 3842, 3849.) He was transported on a bus with other inmates, including appellant. (11RT 3843.) Gonzalez rode in the front part of the bus, which was designated for “keep away.” (11RT 3852.) Gonzalez was a “K-10” or “keep away” inmate status because he wasa prosecution witness in another three-defendant case. (11RT 3842, 3849-3850.) When Gonzalezarrived at the court, he was taken to a holding cell with appellant and other inmates. (11RT 3842.) All of the inmates wore chains on their feet. (11RT 3851.) Gonzalez was a memberof the 12th Street gang in Pomona. Several of the other inmatesin the cell were Azusa gang members. Gonzalez previously got along with them. (11RT 3851-3852.) While Gonzalez was waitingto testify, appellant and the other inmates beat and kicked him. No one said anything to Gonzalez before the beating began, and Gonzalez did not know whohit him first. Appellant hit Gonzalez in the face multiple times while Gonzalez was seated on a benchinside the cell. Gonzalez fell to the floor and was kicked by the inmates for about three minutes. (11RT 3843-3846.) Deputy Edward Borunda,a courtroom bailiff, heard muffled screams for “help” and a banging sound emanating from the holding area. (11RT 3825-3828.) Deputy Borunda enteredthe lock-up and wentto the cell where the noises emanated. (11RT 3829-3830.) Gonzalez, appellant, and inmates Ferrell, Ramirez, and Manriquez wereinsidethecell. (11RT 3831, 3838.) When Deputy Borunda openedthecell door, he saw that Raymond Gonzalez had a bloody face. Appellant stood about two to three feet from Gonzalez. Appellant’s hands wereathis sides. (11RT 3831, 3839.) 51 Soh ih AINAARENAGANSHRAIFNSFn Appellant backed up and sat down. (11RT 3832.) The knuckles of appellant’s hands were reddened. (11RT 3833.) Gonzalez hada golf-ball size knot on his forehead, his eye was swollen, his nose was bloody, and he had blood on his lip and aroundhis teeth. (11RT 3833-3834.) As Gonzalez was taken from the cell, one of the inmates yelled that Gonzalez wasa “‘snitch.” (11RT 3844, 3846-3847.) Gonzalez did nottell the investigating deputy who hadhit him because he was concernedforhis safety. Paramedics transported Gonzalez to Pomona Valley Hospital. He wastreated and returned to the courthouse several hours later. (11 RT 3834-3835, 3847-3849.) As a result of the beating, Gonzalez’s left eye was swollen shut, he had two fractured ribs, and his face was swollen. (11RT 3848.) . Gonzalez was subsequently convicted ofarmed robbery and sentenced to prison. (11RT 3841.) B. Defense Evidence Claudia Mezametappellant through her cousin and had knownhim for 11 years. Throughoutthat time, he was in andout ofjail. In October 1995, appellant and Meza begandating. Priorto his arrest on January 19, 1996, Ms. Mezasaw appellant aboutthree times a week. During that period, Meza did not meet any of appellant’s friends. He did not participate in gang activities or take drugs. He planned to begin working with Meza’s auntas certified nurse’s assistant. (12RT 4149-4152.) Appellant told Meza that he had always ~ been in and out ofjail. He wanted to changehis life and get a job. He was looking into getting his tattoos removed. (12RT 4151-4152.) Appellant’s father, John Catano, testified on appellant’s behalf. Appellant’s mother was Rosella Rodriguez. Appellant’s father, John Catano, was incarcerated at the time appellant was born on April 30, 1970. (12RT 4154-4155.) He had been convicted of attempted murderandassault. a2RT 52 4155-4156.) Catano had spent most of his adult life in prison. (12RT 4163.) Catano last saw appellant in July 1990 when they were both in custody. Appellant testified for Catano on a charge that resulted in his current prison sentence. (12RT 4162-4163.) Catano and Rodriguez were together offand on from 1972 until 1975. From 1975 through 1990, Catano and Rodriguez lived in Whittier with appellant and his sisters, Marlene and Rebecca. (12RT 4156-4157.) Rodriguez’s parents lived in Whittier, as did her brother and other family members. (12RT 4167-4168.) Catano had a drug problem. Appellant’s mother had a drinking problem. They fought constantly and frequently separated. In 1976, Catano was incarcerated for one year for a parole violation. From 1988 until 1990, Catano was again in prison. In 1987 or 1988, the family moved to El Monte, but appellant did not move with the family. (12RT 4157-4158.) In late 1980's, Catano learned that appellant had joined the El Monte Flores gang. Catano and appellant share similar tattoos on their faces, upper torso, stomach,and ear lobes. (12RT 41 59-4161 .) Whenappellant was 16 or 17 years old, Catano visited appellant at the California Youth Authority and tried to convince appellant to take a different path from his own. (12RT 4161, 4164-4165.) Catano had been incarcerated again by the time appellant was released. (12RT 4165.) Appellant did not testify on his own behalf. (12RT 4169.) 53 ARGUMENT I. APPELLANT WAIVED HIS CLAIM CONCERNING THE ADEQUACY OF THE INITIAL DEATH- QUALIFICATION QUESTIONING AND, IN ANY EVENT, THE TRIAL COURT PROPERLY EXCUSED FOR CAUSE 22 PROSPECTIVE JURORS WHO UNEQUIVOCALLY STATED THEY WOULD BE UNABLETO VOTE FORA PUNISHMENTOF DEATH REGARDLESS OF THE EVIDENCE Appellant contends,as his first claim on appeal, that the trial court’s death qualification voir dire was constitutionally deficient and its excusal of 22 prospectivejurors for cause requiresreversal ofthe deathjudgment. (AOB 30-60.) Here, each of the 22 excused prospectivejurors unequivocally informed the court they would be unable or unwilling to impose the death penalty regardless of the evidence or circumstances presented to them. Thus, there was substantial evidence in the record to support thetrial court’s ruling ‘that the jurors’ views of capital punishment would “prevent or substantially impair” the performanceofthejuror’s duties. Accordingly, appellant’s claim should be rejected. A. Summary Of Jury Selection Proceedings On July 16, 1997, appellant filed a motion for sequestered voirdire. (3CT 683-686.) The motion arguedthatthe trial court had discretion, under Code of Civil Procedure section 223, to permit sequestered, individual voir dire (3CT 684) andthat the type of voir dire articulated in Hovey v. Superior Court (1980) 28 Cal.3d 1, was “the most effective method of preventing prospective jurors from being influenced by others in the responses to the death-qualification aspect of the voir dire process and enabling the parties to discover bias.” (3CT 685.) 54 On the morning of October 8, 1997, counsel made their first appearance before the judge who presided over appellant’s trial. Appellant was not present. The parties represented to the court that the only pending pre-trial motion was appellant’s motion for sequestered voir dire as to death qualification. Appellant had not waivedhis presence for the hearing on that motion. (IRT 1011-1012.) The parties agreed to defer the sequestered voir dire motion until the dayjury selection commencedin appellant’s case. (LRT 1014.) The trial court’s subsequent denial of this motion is addressed in ArgumentIII, post. Jury selection commenced on October 10, 1997, after the parties stipulated that a time-qualified jury could be summonedforthe trial. (CT 827.) The court utilized a juror questionnaire (3CT 830-837) that focused — solely upon the jurors’ view of capital punishment. 1. Screening Of The First Panel Of Jurors Jury selection commencedat 9:48 a.m. on Friday, October 10, 1997. (2RT 1248-1290.) After the first panel ofprospectivejurors were sworn (2RT 1248, 1265), the court reviewedthe prospective jurors for financial hardships and 14 prospectivejurors were subsequentlyexcused. (2RT 1249-1265.) The trial court then provided the remaining panelists a brief overview ofthe case, including that appellant was charged with “various felonies, including one count ofmurderin thefirst degree,” it was alleged that “special circumstances exist” given the manner in which the murder was committed, andthat, if the jury found appellant guilty of first. degree murder and found the special- circumstanceallegationsto betrue, the jury would have to determine whether the penalty should be affixed at death or life without the possibility ofparole. (2RT 1265-1267.) Thetrial court then posed the following question to the group: “Now, without knowing anything at all about this case, is there any jurorsitting in the audience right now that, regardless of whatthe evidence 55 might be, has such feelings about the death penalty that he or she would be unable to impose the death penalty in this case?” (2RT 1267.) Ten prospectivejurors responded affirmatively; theywere questioned individually and excused by the court (2RT 1267-1271), as summarized below. THE COURT:I need to know your name. PROSPECTIVE JUROR[M.]: [C. M.] THE COURT:Miss[M.], that is regardless ofwhat the evidenceis;is that correct? PROSPECTIVE JUROR[M.]: Yes. THE COURT:All right. You are excused. (2RT 1267-1268.) THE COURT: Your name,sir? PROSPECTIVE JUROR[C.]: [S. C.] THE COURT: And Mr.[C.], that is regardless ofthe evidence;is that correct? PROSPECTIVE JUROR[C.]: Yes. THE COURT: You are excused. (QRT 1268.) At this juncture, appellant’s counsel articulated the following objection, “Your Honor, for purpose of the record, we ask that the jurors not be excused,object to their being excused,and ask in the alternative that they be allowed to participate in a pool ofjurors that determinethe guilt phase, at | least, of the trial.” (2RT 1268.) The court overruled the objection and continued, as follows: THE COURT:Your name, ma’am? PROSPECTIVE JUROR[G.]: [D. G.] THE COURT:Miss [G.], your answeris that you would be unable to vote to impose the penalty of death, regardless of the evidence? PROSPECTIVE JUROR[G.]: Yes. THE COURT:You are excused. Thank you. 14. Being cognizant of changesin the law,as well as the policy ofthe courts regarding juror confidentiality, respondentwill refer to the prospective jurors by initials. However, the jurors are referred to by namein the record, and Appellant’s Opening Briefalso refers to the prospective jurors by name. (See AOB 30-37.) 56 (2RT 1268.) THE COURT:Andyou, Miss [O.]? PROSPECTIVE JUROR[0.]: Yes. THE COURT:Andyour answer would be the same? PROSPECTIVE JUROR[O.]: Yes,sir. THE COURT:Regardless of the evidence, you would be unable to vote to impose the punishment of death? PROSPECTIVE JUROR[0.]: Yes. I just don’t believe in the death penalty. THE COURT:Thank you. You are excused. (2RT 1268-1269.) The proceedings continued, as follows: PROSPECTIVE JUROR[U.]: [A. U.]. THE COURT:Miss[U.], regardless of the evidence in this case, you would be unable to vote to impose the punishment of death; is that correct? PROSPECTIVE JUROR[U.]: Correct. THE COURT:And that would be in any case; is that correct? PROSPECTIVE JUROR[U.]: Right. THE COURT:Youare excused, as well. (QRT 1269.) THE COURT: Andyou,as I recall, are Miss [A.]. PROSPECTIVE JUROR[A.]: Yes. THE COURT: And you would be unable to vote to impose the punishmentof death in any case;is that correct? PROSPECTIVE JUROR[A.]: Yes. THE COURT: Regardless of the evidence? PROSPECTIVE JUROR[A.]: Yes. THE COURT: Youare excused, as well. (2RT 1269.) THE COURT:Miss [W.], you would be unable to vote to imposethe death penalty in this case or any case, regardless ofthe evidence;is that correct? PROSPECTIVE JUROR[W.]: Yes. THE COURT: Youare excused, as well. Thank you. (2RT 1270.) THE COURT:In the back row, your name,please? [J] Excuse me,the second row. PROSPECTIVE JUROR[L.]: [T. L.] 57 THE COURT:Miss [L.], you would be unable to vote to impose the punishmentofdeath in this case, regardless of the evidence? PROSPECTIVE JUROR[L.]: That is correct, sir. THE COURT: Youare excused. (RT 1270.) THE COURT:Andthe lady nextto her? PROSPECTIVE JUROR[M.]: [Z. M.] THE COURT: Yes. And you would be unable to vote to impose the punishment of death in this case or any case, regardless of the evidence? PROSPECTIVE JUROR[M.]: Yes. THE COURT:Thank you. (2RT 1270-1271.) THE COURT:Andfinally, you name, ma’am? PROSPECTIVE JUROR[S.]: [A. S.] THE COURT: And Miss[S.], you would be unable to vote to impose the — actually, I should say you would be unwilling to impose the death penalty in this case or any case, regardless of the evidence? PROSPECTIVE JUROR[S.]: Yes. THE COURT: Thank you. You are excusedalso. (2RT 1271). After excusing these prospectivejurors,the trial court asked the panel members whether any of them would be unableto vote for life without the possibility of parole. No juror responded in the affirmative, and the proceedings continued. (2RT 1271.) Thetrial court then describedthe eight- page juror questionnaire. (2RT 1272.) The jurors were provided the questionnaire and instructed to complete it and return at 1:30 p.m. (2RT 1272, 1289.) 2. Screening Of The Second Panel Of Jurors A second panelofjurors was broughtinto the courtroom and sworn on the morning on October 10, 1997. (2RT 1274.) Eight prospectivejurors were excused for financial hardship based uponthestipulation ofthe parties. (2RT 1275-1281.) The trial court then provided a brief overview of the case, 58 including that the case charged appellant with committing “a number of different felony offenses. One of those is the crime of murderin thefirst degree.” The court further explainedthat“It is alleged also that because ofthe mannerin whichthe killing occurred, that special circumstancesexist in this case.” Therefore,ifthejury found appellant guilty of first degree murder and found the special circumstances to be true, the jury would be asked to determine whether the penalty should be affixed at death or life without the possibility ofparole. (2RT 1282-1283.) Thetrial court then askedthe panel, as a group, whether any of them would be unable to vote for death as a punishment: Now,people do tend to have strong opinions whenit comesto the death penalty, and people are certainly entitled to have those opinions, and no such opinionis right or wrong, but we do needto find out what your feeling is in general on the death penalty before we can proceed any further, so I’m goingto ask youfirst the following couple ofvery general questions. [{]] The first question is this: [J] “Because of your feelings about the death penalty in general, is there anyone who would. be unable to vote to impose the punishmentof deathin this case or in any case, regardless of the evidence?” (2RT 1282-1283.) The trial court repeated the question, “Would you be unable to vote to impose the punishment of death in this case or in any case, regardless of the evidence?” in response to an inquiry from one prospective juror. (2RT 1283.) Six prospective jurors responded affirmatively to the question and stood. The six prospective jurors were individually questioned and excusedbythe court as follows: THE COURT: Your name, please? PROSPECTIVE JUROR[W.]: I just don’t believe-- THE COURT: I need your name. PROSPECTIVE JUROR[W.]: [A. C. W.]. THE COURT: And Miss [W.], you would be unable to impose the death penalty in this caseor any case, regardless ofthe evidence;is that correct? PROSPECTIVE JUROR [W.]: Yes. 59 THE COURT: You are excused. Thank you [{] I assume you’re making the sameobjection as before? , [Appellant’s counsel]: Yes. THE COURT: Madeand overruled. (2RT 1283-1284.) The court addressed another standing prospective juror, whorespondedasfollows: THE COURT: Miss[B.], you would be unable to vote to impose the death penalty in this case or any case, regardless of the evidence, because of your feelings about the death penalty? PROSPECTIVE JUROR[B.]: Yes. THE COURT: Youare excused. (RT 1284.) THE COURT: Mr.[E. N.], you would be unable to vote to imposethe death penalty in this case or any case, regardless of the evidence, because of your feelings about the death penalty? PROSPECTIVE JUROR[N.]: That is correct. THE COURT: Youare excused, as well. QRT 1284.) PROSPECTIVE JUROR[S.]: [J. S.] THE COURT: Andyour answer would be the same, Miss[S.]? PROSPECTIVE JUROR[S.]: Yes. THE COURT: You would be unableto vote to impose the punishment of deathin this case or any case, regardless ofthe evidence, because of your feelings about the death penalty in general? PROSPECTIVE JUROR[S.]: Yes. THE COURT: You are excused, as well. (2RT 1284-1285.) THE COURT: In the back row? PROSPECTIVE JUROR[J.]: [M. J.] THE COURT: Miss[J.], would your answer be the same? PROSPECTIVE JUROR[J.]: Yes, it would. THE COURT: You would be unable to — you would be unwilling,I should say, to vote to impose the punishment of death in this case or any case, regardless ofthe evidence, because ofyourfeelings about the death penalty ingeneral? PROSPECTIVE JUROR[J.]: That is correct. THE COURT: Youare excused. 60 (2RT 1285.) Then the court questioned and excused the sixth and final prospective juror from the second panel, as follows: THE COURT: And your name? PROSPECTIVE JUROR[E.]: [L. E.]. THE COURT: Miss[E.], you would be unwilling to vote to impose the punishment of death in this case or any case, regardless of the evidence, because ofyour feelings about the death penalty, in general? PROSPECTIVE JUROR[E.]: Yes,sir. THE COURT: You are excused, as well. (2RT 1285.) Next, the trial court inquired whether any panel member would be unable to vote for life without the possibility of parole. No juror responded in the affirmative, and the proceedings continued. (2RT 1286.) Thetrial court then described the eight-page juror questionnaire, provided it to the jurors, and instructed them to instructed to complete and return later that afternoon. (2RT 1286-1287, 1289.) After the second panel was excusedto prepare written questionnaires, the parties memorialized for the record that. an in-chambers conference had occurred concerning jury selection. (2RT 1287.) Thetrial court also denied appellant’s motion for sequestered voir dire. (2RT 1288.) 3. Voir Dire Of The First Panel Of Jurors Thefirst panel ofjurors whohad not been excused for cause submitted completed written questionnaires. (2RT 1291.) Out of the jurors’ presence, the trial court outlined the procedure that would be followed to question the jurors, which would permit both counsel to question individual jurors and make death-qualification challenges for cause. (2RT 1292.) Appellant waived his right to be present during the exercise of challenges for cause regarding the death penalty. (2RT 1293-1294.) Then,thetrial court called 14 jurors from the first panel into the jury box (2RT 1295-1296), and reviewed generallegal principles applicable to the 61 case, including that the defendant is presumedinnocent (2RT 1298), read the penalty instructions regarding aggravating and mitigating evidence (2RT 1299-1302), asked whether the jurors would and could comply with instructions (2RT 1303), asked whether the jurors could and would weigh aggravating and mitigating factors (2RT 1303), and would,if appropriate, be able to select the death penalty (2RT 1304). . Thetrial court next asked two ofthe individual jurors about answers provided on questionnaires. (2RT 1305-1309.) Appellant’s counsel addressed questionsto individualjurors (2RT 1309-1319), and the prosecutor questioned the jurors in the same manner (2RT 1319-1339). Appellant declined to challenge any prospective juror for cause. The prosecutor sought to excuse one prospective juror for cause, but the court denied the motion. (2RT 1341.) The first 14 jurors were then excused until Wednesday. (2RT 1341-1342.) The court questioned the remaining prospective jurors from thefirst panel by referring to questions discussed with the first group of 14. (2RT 1342-1345.) The court then questioned Prospective Juror No. 2361 conceming his answers on the questionnaire. (2RT 1345-1347.) Next, defense counsel questioned the jurors (2RT 1347-1348), and the prosecutor questioned the jurors individually (2RT 1348-1356). The defense made no challenges for cause. | The prosecution challenged Prospective JurorNo. 2361 for cause. (2RT 1357.) Thetrial court upheld the challenge to Prospective Juror No. 2361. The trial court excused the remaining jurors until Wednesday. (2RT 1358.) 4, Voir Dire Of The Second Panel Of Jurors Late on the afternoon ofOctober 10, 1997, the membersofthe second panel of jurors entered the courtroom and voir dire began. Initially, 12 prospective jurors were called into thejury box. (2RT 1359-1361.) The court 62 provided the jurors generalinstructions and collectively questioned them—no individual juror was specifically addressed through these questions. (2RT 1361-1368.) Defense counsel individually questioned five ofthe prospective jurors. (2RT 1368-1377.) The court and counselthen engagedin a discussion at the bench concerning one prospective juror and an anticipated defense challenge to her for cause. (2RT 1377.) The prosecutor was afforded an opportunity to question herfor rehabilitative purposes (2RT 1378-1379);the trial court excused the remainderofthe panel, with the exception ofthis juror (2RT 1379). After the trial court and the parties questionedthis juror in the absenceofthe otherjurors (2RT 1380-1383), the defense challenge for cause was upheld. (2RT 1384-1386.) After the third panel of prospective jurors was screened, the prosecutor’s questioning of the second panel resumed. (2RT 1403-1421.) One prospective juror was excusedby stipulation on the basis that service would posea financial hardship. (2RT 1421.) Thetrial court sustained the prosecutor’s challenge for cause to Prospective Juror F.P. after further questioning by appellant’s counsel and the court. (2RT 1422-1424.) Thetrial court collectively reviewedthe instructions and obligationsofthejurors with the remaining membersofthe second panel (2RT 1425), appellant’s counsel © ~ questioned the panel memberscollectively and individually (2RT 1428-1433), and the prosecutor questioned the panel memberscollectively and individually (2RT 1433-1444). Neither party challenged any remaining panel memberfor cause. (2RT 1444.) 5. Screening Of The Third Panel Of Prospective Jurors A third panel of jurors was summoned on October 14, 1997, and screenedprior to the resumptionofthe voir dire process for the second panel. (2RT 1388-1389.) Six jurors were excused on the basis that service would pose a financial hardship. (2RT 1390-1395.) The court next provided the 63 remaining panelists a brief overview of the case, including that the case involved a numberoffelonies, including a chargeoffirst degree murder,that if the jury found appellant guilty of first degree murder and found special circumstances existed, the jury would have to determine whetherthe penalty should be affixed at death or life without the possibility of parole. Thetrial court then remarked, “Persons do tend to have strong opinions one wayorthe other about the death penalty. There is nothing wrong about having such opinions, but I do needto find out a little bit about those opinionsat this time.” (2RT 1395.) Thetrial court continued as follows: “Now,ifthere are any ofyou who have such strong feelings about the death penalty law in general that you would be unable to impose the punishmentofdeath in this case or in any case, regardless of the evidence, would you stand, please?’ (2RT 1398.) Six prospective jurors stood. Thesixjurors were individually questioned and five . were excused by the court. (2RT 1395-1403.) Thetrial court first addressed Prospective Juror[J. L.]: PROSPECTIVE JUROR[L.]: I am just against the death penalty. THE COURT: Regardless of the circumstances of the case? PROSPECTIVE JUROR[L.]: Yes,sir. THE COURT: Regardless of the evidence? PROSPECTIVE JUROR[L.]: Yes,sir. THE COURT: There is no possible case that you would vote to’ impose the death penalty on? PROSPECTIVE JUROR[L.]: Yes,sir. THE COURT:All right. Sir, you are excused. Thank you. (2RT 1396.) The trial court next addressed Prospective Juror [G. L.] as follows: THE COURT:All right, ma’am. PROSPECTIVE JUROR[L.]: Iam strongly against the death penalty. I am againstit. THE COURT:In any case? PROSPECTIVE JUROR[L.]: In any case. Life imprisonment, I’m okay; but death, I’m againstit. 64 THE COURT: So you would be unable to vote to impose the death penalty in this case or in any case;is that right? PROSPECTIVE JUROR[L.]: Yes. THE COURT: Regardless of the evidence? PROSPECTIVE JUROR[L.]: Yes,sir. (2RT 1396-1397.) The court excused Prospective Juror[L.] after appellant’s counselrestated his previous objection. (2RT 1397.) The third person questioned was Juror [L. W.], in a colloquy as follows: PROSPECTIVE JUROR [W.]: I’m opposedto it because back in ‘76 my brother was convicted of murderin the first degree. THE COURT: So you would be unable to impose the punishmentof death in this case or any case? PROSPECTIVE JUROR [W.]: Anycase, yes,sir. THE COURT: Regardless of the evidence or circumstances? PROSPECTIVE JUROR[W.]: Yes,sir. THE COURT:Is that right? PROSPECTIVE JUROR [W.]: Yes, sir. THE COURT: You could not even conceive ofan instance where you would vote to impose the death penalty? PROSPECTIVE JUROR[W.]: No,no,sir. THE COURT:Sir, thank you. You are excused. (2RT 1397-1398.) The trial court turned to the next standing prospective juror: THE COURT:Your name, ma’am? PROSPECTIVE JUROR[C.]: My nameis [R.C.]. THE COURT:[R.C.]? PROSPECTIVE JUROR[C.]: Yes. I am against the death penalty. THE COURT:So you could not vote to impose the death penalty in this case or in any case? PROSPECTIVE JUROR[C.]: No,sir. THE COURT:Regardless of the evidence? PROSPECTIVE JUROR[C.]: No,sir. | THE COURT:Regardless of the circumstances? PROSPECTIVE JUROR[C.]: No,sir. THE COURT: You could not even conceive of a case where you would vote to impose the death penalty? PROSPECTIVE JUROR[C.]: No,sir. THE COURT:Youare excused. Thank you. 65 (2RT 1398-1399.) The questioning of the standing prospective jurors continued, as follows: PROSPECTIVE JUROR[H.]: [N. B.] or [H.]: [N. H.-B.] How is that? [J] I’m vegetarian. I don’t even — I went fly fishing in the summer, and a fish died, and I cried, so no, there is no way I could even consider anything like that. THE COURT:Have yougiven this subject any thought before right now? . . - PROSPECTIVE JUROR[H.]: Whenthe fish died, and I cried, it was spontaneous. I realized then that I can’t even enjoy fish, so I don’t wantto be part ofthis. THE COURT: You couldn’t conceive of an instance so terrible that you would vote to impose the death penalty? PROSPECTIVE JUROR[H.]: No,notatall. THE COURT:So you couldn’t vote to imposeit in this case or any case? PROSPECTIVE JUROR[H.]: Everything hasa rightto live. THE COURT:Regardless of the evidence? PROSPECTIVE JUROR[H.]: Regardless. THE COURT:Underno circumstances? PROSPECTIVE JUROR[H.]: No circumstances. THE COURT: You are excused, as well, Miss [H.]. Thank you. (2RT 1399-1400.) The sixth standing prospectivejuror, E. S., was questioned by the court but was not excused once her answers demonstrated she might consider death an appropriate punishment for some crimes. (2RT 1400-1401.) The trial court then inquired whether any panel member would be unable to vote for life without the possibility of parole. No juror responded in the affirmative, and the trial court described the eight-page juror questionnaire and the procedure to follow in completing that document. (2RT 1402-1403.) The jurors were provided the questionnaire and instructed to complete it and return later that afternoon. (2RT 1403.) Further questioning ofthe remaining panelists in this group — including questioning of individual prospective jurors by counsel — was conductedand completed in the afternoon. (2RT 1457-1515.) 66 6. Screening Of The Fourth Panel Of Prospective Jurors A fourth panel of jurors was summoned on October 14, 1997, and screened prior to the voir dire process of the third panel. Four jurors were excused onthebasis that service would posea financial hardship. (2RT 1446- 1449.) The court next provided the remaining panelists a brief overview of the case, including that the case involved a numberoffelonies, including a charge offirst degree murder, and that if the jury found appellant guilty of first degree murder and found special circumstances existed the jury would have to determine whether the penalty should be affixed at death orlife without the possibility of parole. (2RT 1449-1450.) The trial court then remarked, “Now,there are persons whohavestrong feelings about the death penalty in the State ofCalifornia, and there is nothing wrong with having such opinions, but I need to know what those opinionsare.” (2RT 1450.) Thetrial court continuedas follows: “So I’ll ask youfirst if any ofyou have such strongfeelings about the death penalty that you would be unable to vote to impose the punishment of death in this case or in any othercase, regardless ofthe evidenceor the circumstances? Ifyour answerto that is yes, if you would stand.” (2RT 1450-1451.) Three prospective jurors stood and were individually questioned by the court. (2RT 1451-1453.) Asrevealed from the questioning quoted below,only one of the three prospective jurors was excused: THE COURT:Let’sstart with you,sir. PROSPECTIVE JUROR[B.]: [E. B.]. THE COURT:Yes,sir? PROSPECTIVE JUROR[B.]: I could not participate in a jury that would be asked to impose death in any case. THE COURT: So you could not conceive of a case where the death penalty might be appropriate? PROSPECTIVE JUROR[B.]: I could conceive — I could conceive of a case, but I don’t know that I’d want — I — I don’t know that I would wantto be part ofthat case. 67 THE COURT: Well, I think we’re going to need to ask you some more questions aboutthat. []] Have a seat. (2RT 1451.) THE COURT: What was your nameagain? PROSPECTIVE JUROR[M.]: [A. M.] THE COURT:Yes, there you are. I’m sorry. PROSPECTIVE JUROR [M.]: I can conceive of someone doing something wrong where people would considerthat he deserved death. I don’t — I’m against the death penalty. THE COURT: In general? PROSPECTIVE JUROR[M.]: Flat out. THE COURT:So you could not conceive of a case where the death penalty might be warranted? PROSPECTIVE JUROR[M.]: My heart is racing just thinking about deciding to make that judgment. THE COURT:Soare you indicating to me then that you could not vote to imposethe death penalty in this case or in any othercase, regardless of the evidence or circumstances? PROSPECTIVE JUROR[M.]: No.[{] Life imprisonment without the possibility of parole; death, no. . THE COURT: So your answer to my question is you could not vote to do that? PROSPECTIVE JUROR[M.]: I could not vote for the death penalty. THE COURT: Underany circumstances? PROSPECTIVE JUROR [M.]: Under any circumstances. THE COURT:Appreciate yourletting me know that, Miss [M.]. You are excused. Thank you. (2RT 1451-1452.) PROSPECTIVE JUROR[T.]: [L. T.]. THE COURT:Yes. PROSPECTIVE JUROR[T.]: I would notlike to be the one to decide on taking a person’slife. THE COURT: Well, you wouldn’t be the only one. It would be twelve jurors who would haveto agree. PROSPECTIVE JUROR[T.]: I -- THE COURT:So you would not wantto participate? PROSPECTIVE JUROR[T.]: No. THE COURT: Could you conceive of a case that would be so horrendousthat you would vote to impose the death penalty? PROSPECTIVE JUROR[T.]: Yes. 68 THE COURT: So depending on the circumstances or the evidence, you mightbe willing tovote to imposeit? PROSPECTIVE JUROR[T.]: Yes. THE COURT: Havea seat. (2RT 1452-1453.) Thetrial court then described the eight-page juror questionnaire and provided instructions for completing it. (2RT 1453-1454.) The jurors were given the questionnaire and instructed to complete it and return later that afternoon. (2RT 1454.) Further questioning of the remaining panelists — including questioning of individual prospective jurors by counsel — was conducted and completed in the afternoon. (2RT 1517-1559.) B. Applicable Law Decisionsofthe United States Supreme Court and this Court establish that a prospective juror may be challenged for cause based uponhis or her views regarding capital punishment if those views would “prevent or substantially impair” the performanceofthe juror’s duties as defined by the trial court’s instructions and the juror’s oath. (Wainwright v. Witt (1985) 469 U.S. 412, 424; Witherspoonv.Illinois (1968) 391 U.S. 510, 516, fn. 9 & 522, fn. 21; People v. Chatman (2006) 38 Cal.4th 344, 365; People v. Stewart (2004) 33 Cal.4th 425, 440-441; People v. Crittenden (1994) 9 Cal.4th 83, 121.) A prospective juror is properly excluded if he or she is unable to conscientiously considerall the sentencing alternatives, including the death ‘penalty, where appropriate. (People v. Cunningham (2001) 25 Cal.4th 926, 975.) Thus, a prospective juror who has expressed an unwillingness to impose the death penalty may properly be excused for cause. (People v. Jenkins (2000) 22 Cal.4th 900, 986-987.) Before granting a challenge for cause concerning a prospective juror over the objection of another party, a trial court must have sufficient information regarding the prospective juror’s 69 state ofmind to permit a reliable determination as to whether thejuror’s views would preventor substantially impair the performanceofhis or her duties in the case before the juror. (People v. Ochoa (2001) 26 Cal.4th 398, 431.) Thereis no requirementthat a prospectivejuror’s bias against the death penalty be proven with unmistakable clarity. (Wainwright v. Witt, supra, 469 US.at p. 424; People v. Jones (2003) 29 Cal.4th 1229, 1246.) “Rather,it is sufficient that the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law in the case before the juror.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1147.) The excusalofjurors who are “unable or unwilling to vote for the death penalty under any circumstances” does not violate a defendant’s constitutional right to an impartial jury. (People v. Avena (1996) 13 Cal.4th 394, 412.) A reviewing court will uphold the trial court’s ruling if it is fairly supported by the record and acceptthe trial court’s determination as to the prospective juror’s true state of mind when the prospective juror has made statements that are conflicting or ambiguous. (People v. Chatman, supra, 38 Cal.4th at p. 365; People v. Smith (2003) 30 Cal.4th 581, 601-602; see also People v. Heard (2003) 31 Cal.4th 946, 958.) In according deferencetotrial court rulings on motions to exclude for cause, appellate courts recognize that a trial judge who observes and speaks with a prospective juror -- thereby hearing the person’s tone ofvoice andperceivinghis or her apparentlevel of confidence and demeanor-- gleans valuable informationthat simply does not appear on the record. (People v. Stewart, supra , 33 Cal.4th at p. 451.) Where, in the absence of adequate justification, a trial court . erroneously excusesajuror for cause based uponthejuror’s ostensible views regarding the death penalty, controlling United States Supreme Court precedentestablishesthat, under federal constitutional principles, this type of 70 error must be considered reversible per se with regard to any ensuing death penalty judgment. (People v. Heard, supra, 31 Cal.4th at p. 951; see Gray v. Mississippi (1987) 481 U.S. 648, 664-666, 668; Davis v. Georgia (1976) 429 U.S. 122, 123.) C. Appellant’s Challenge ToThe Adequacy OfThe Court’s Questioning Has Been Waived Initially, this claim has been waived by appellant’s failure to state a timely and specific objection to the adequacyofthe court’s questioning in the trial court. Indeed, the information available from the appellate record suggests that, prior to the beginning ofjury selection, counsel was apprised of and agreed to the procedure the court employed. (2RT 1287.) Moreover, although appellant’s counsel filed a perfunctory pretrial motion invoking the trial court’s statutory discretion to permit sequestered and individual voir dire (see 3CT 683-686) and asked that the court not remove these 22 prospective jurors for cause from the venire (“Your Honor, for purposeofthe record, we ask that the jurors not be excused, object to their being excused, andaskin the alternative that they be allowedto participate in a pool ofjurors that determinethe guilt phase, at least, ofthe trial”), appellant did not articulate a constitutional basis for his objection and never professed any dissatisfaction with the inquiry madebythe court prior to the excusal for cause of these 22 prospective jurors and, instead, noted that the death qualification had been “accomplished” by the procedure used. (2RT 1287- 1288). Indeed, appellant now characterizes his objection as a general challenge to California’s death-qualification procedurerather than a claim the court obtained insufficient information to excuse the jurors for cause. (See AOB32,fn. 20; 81-95.) Thus, appellant has waivedthe claim byfailing to object to the adequacy of the questioning in the trial court. (People v. Hernandez (2003) 30 Cal.4th 835, 855 [claim trial court failed to adequately 71 question prospective jurors ontheir attitudes toward the death penaltywaived because no objection madeonthis groundattrial].) D. The Trial Court Properly Excused For Cause Prospective JurorsWho Unequivocally Stated They Would Be Unable Or Unwilling To Vote For The Death Penalty Regardless Of The Evidence Or Circumstances In this case, 22 prospective jurors were excused by the court for cause without individualized questioning by counsel andprior to the completion of the written questionnaires. Each of the 22 excused prospective jurors unequivocally stated that they would be unable!to vote to impose a punishment ofdeath regardless of the evidence or circumstancespresented to them. (2RT 1267-1271, 1283-1285, 1396-1400, 1451-1453.) Appellant maintains that the trial court’s questioning was inadequate to determine whether these prospective jurors could follow the law andthetrial court’s instructions, andthat thetrial court’s findingsto the contrary are not supported by substantial evidence. (AOB 38-57.) He complains that the 22 excused prospectivejurors were not apprised of the governing legal principles and were never asked about their ability to consider both aggravating and. mitigating evidence. (AOB 45.) The question here is not whether another procedure could have been employedto investigate the views held by the 22 prospectivejurors who were excused for cause before written questionnaires were completed. Rather, the question is whether the excusals were constitutionally adequate. The United States Supreme Court has said that “determinations ofjuror bias cannot be 15. All of the 22 prospective jurors stood in responseto the court’s inquiry whether any juror would be “unable” to vote to imposethe punishment of death. Three of the 22 excused prospective jurors, A.S., M.J., and L.E. were individually asked whether they were “unwilling” to vote for a punishmentof death. (2RT 1271, 1285.) 72 reduced to question-and-answersessions which obtain results in the manner ofa catechism.” (Wainwright v. Witt, supra, 469 U.S. at p. 424.) Similarly, the prior decisions of this Court demonstrate that neither the mode of questioning -- written or oral -- or the number of questions posed is determinative. For instance, this Court has previously held that a prospective juror may be discharged for cause basedsolely on his or her questions on a written questionnaire, so long as the answers clearly demonstrate that the prospective juror is unwilling to temporarily set aside his or her ownbeliefs and follow the law. (People v. Avila (2006) 38 Cal.4th 491, 531.) Here, given these jurors’ unequivocal representations that they would be unable or unwilling to vote for a punishment of death regardless of the evidence presented, the excusal ofthese 22 prospective jurors for cause did notviolate constitutional principles. | Appellant complainsthat “the trial court failed to conduct an adequate inquiry using the proper legalstandard.” (AOB 47.) However,the court’s questioning was substantially similar to the questioning examined by the Supreme Court in Darden v. Wainwright (1986) 477 U.S. 168, and the questioning articulated the standard (“unable or unwilling”) previously referenced by this Court in People v. Avena, supra, 13 Cal.4th at p. 412, and People v. Miranda (1987) 44 Cal.3d 57, 96. In Darden v. Wainwright, supra, 477 U.S. 168, the Supreme Court upheld the excusal of a juror for cause based upon the answerto single oral death-qualification question: “‘Do you have any moral orreligious, conscientious moralor religious principles in opposition to the death penalty so strong that you would be unable without violating your ownprinciples to vote to recommenda death penalty regardless of the facts?” (/d. at pp. 175- 176.) The juror was excused after he responded, “Yes, I have.” (/d. at p. 178.) In reviewing the excusal, the Court observed that the question and 73 + aARRReAHOLDRiemnRTRON THONhee, wR gen” oa APE aettennin tone answer did not, necessarily, compel a conclusion that the juror “could not under any circumstance recommend the death penalty.” (ad. at p. 178.) However, the Court in making its assessment of “substantial impairment” observedthat“[t]he trial court, ‘aided as it undoubtedly wasbyits assessment of[the potential juror’s] demeanor,’” “could take accountofthe factthat [the prospective juror] was present throughoutan entire series ofquestions [posed orally by the court to other prospective jurors] that made the purpose and meaning of the Witt inquiry absolutely clear.” (/bid., citation omitted.) In addition, the Court observed, “[n]o specific objection was madeto the excusal of [the prospective juror] by defense counsel....” (Jbid.) In this case, although appellant’s counsel asked that all prospective jurors be retained in the venire, counsel did not object on the basis that any individual juror’s responses wereinsufficient to find cause to excuse him or her. Moreover,the trial court had the opportunity to assess the demeanor of the individualjurors, each of the jurors heard the question a minimum oftwo times, thejurors were individually questioned concerning their responses, and the trial court asked additional questions for clarification when it deemed necessary. Thetrial court’s ruling that the 22 excused jurors’ viewsofcapital punishment would “prevent or substantially impair’ the performance of the juror’s duties is supported by the record and should be upheld. To the extent appellant implies that the trial court baffled the prospective jurors with a “single ill-phrased question” (AOB 30), the record refutes this implication. Each juror was individually and directly asked a minimum of two questionsthat either incorporated theinitial question posed to the jurors as a group or incorporatedportionsofprior inquiries. Although the court asked more questions of some jurors and fewer of others, the presumptive explanation for the differences in questioning lies in the demeanor of the jurors and the tone of their responses. Thetrial court 74 conducted further inquiry of prospective jurors who provided equivocal answers and retained three prospective jurors whose answers remained equivocal following the additional questioning. (2RT 1400-1401, 1451- 1453.) Neither appellant’s counsel nor the prosecutor requested that the court make additional inquiry ofthe 22 prospective jurors who were excused. Nor did either counsel suggest that there was insufficient evidence for the court to concludethat, for these 22 excused prospectivejurors, their “views oncapital punishment... would ‘preventor substantially impair the performanceof[the juror’s| duties as a juror in accordance with his instructions and his oath.’” (Wainwright v. Witt, supra, 469 U.S.at p. 424.) Appellant’s challenge to the procedure employed by the trial court should fail. — Appellant comparesthe questioningin this case to questioning in cases this Court has found juror excusals were not supported by the record. (See AOB30,40-45, citing People v. Stewart, supra, 33 Cal.4th 425, and People v. Heard, supra, 31 Cal.4th 946.) Thosecasesare distinguishable. First, appellant’s case is not similar to the circumstances presented in People v. Stewart, supra, 33 Cal.4th 425. (AOB 40-42.) There, this Court concluded thetrial court had erred in excusingfive prospectivejurors for cause, over defense objection, based solely upon their checked responses and written answers on a questionnaire. (/d. at pp. 454-455.) In Stewart, the excused jurors had affirmatively answered a written question that inquired whethertheir views would “prevent or makeit very difficult for you” to vote to impose the death penalty, and the court conducted no additional - questioning. (id. at pp. 444-445.) This Court concluded,“a prospective juror who simply wouldfindit ‘very difficult’ ever to impose the death penalty,is entitled—indeed, duty bound-tosit on a capital jury, unless his or her personal views actually would prevent or substantially impair the performance of his or her duties as a juror.” (/d. at pp. 446-447.) Here, the court’s question 75 containedno ambiguity; rather, by standing, the excusedjurors affirmatively represented they would be unable to impose the death penalty under any circumstances. These excused jurors professed more than hesitation about voting for the death penalty. The court subsequently clarified this physical response individually with eachjuror and refused to excuse those jurors who equivocated in their answers. Whether the excused jurors were individually asked if they would be unable or unwilling to vote for the death penalty,all professed viewsof capital punishment that would “prevent or substantially impair’ the performanceoftheir duties as jurors. Appellant’s comparison of his case to People v. Heard, supra, 31 Cal.4th 946, also fails. (AOB 42-45.) In Heard, a juror indicated in his written questionnairethat he consideredlife in prison to be “worse”than the death penalty. Subsequently, the juror was questioned at length by the court and the parties. After the court explained to the juror that California law considered death to be the worse punishment,thejuror stated he would follow the law. This Court concluded that the juror’s statement on the written | questionnaire was notsufficient to support the excusal for cause becauseit had been “given without the benefit of the trial court’s explanation of the governing legal principles.” (/d. at p. 964.) Although appellant suggests that the prospective jurors may not have understood the import of the questions posed by the court — referencing one juror’s explanation that she was a vegetarian!” (AOB 48-49), the absence of 16. The full context of this response demonstrates the juror fully comprehended the meaningofthe court’s question: PROSPECTIVE JUROR[H.]: I’m vegetarian. I don’t even — I wentfly fishing in the summer,and fish died, and I cried, so no, there is no way I could even consider anythinglike that. THE COURT:Have yougiventhis subject any thought before right now? . PROSPECTIVE JUROR[H.]: Whenthe fish died, and I cried, 76 an objection to the inquiry conducted and the explanations volunteered by some prospective jurors together belie this claim. The answers provided by the excused jurors were unequivocal. That some prospective jurors felt compelled to volunteer additional information does not evidence a lack of understanding ofthe inquiry. Thetrial court had the opportunity to assess the demeanor of the individual excused jurors and could best gauge the persistence of the view expressed by the excused jurors. Thetrial court’s ruling that the 22 excusedjurors’ views ofcapital punishment would “prevent or substantially impair” the performanceofthe juror’s duties is supported by | the record and should be upheld. E. Should This Court Conclude That The Trial Court Did Not Adequately Question The 22 Prospective Jurors Who Were Excused Based Upon Their Views Of The Death Penalty, The Appropriate Remedy Would Be To Remand For A New Penalty Phase Should this Court conclude that the trial court did not adequately question the 22 prospective jurors who were excused based upontheir views of the death penalty, the applicable federal decisions require reversal of the judgmentasto the sentence of death only; remand for a new penalty phase it was spontaneous.I realized then that I can’t even enjoyfish, so I don’t want to be a part ofthis. THE COURT: You couldn’t conceive ofan instancesoterrible that you would vote to impose the death penalty? PROSPECTIVE JUROR[H.]: No,notat all. THE COURT:So you couldn’t vote to imposeit in this case or any case? . PROSPECTIVE JUROR[H.]: Everything hasa right to live. [§] THE COURT:Regardless of the evidence? . PROSPECTIVE JUROR[H.]: Regardless. THE COURT: Undernocircumstances? PROSPECTIVE JUROR[H.]: No circumstances. THE COURT: Youare excused, as well, Miss [H.]. Thank you. . (2RT 1399-1400.) 77 judgmentas to the sentence of death only; remand for a new penalty phase before a properly selected jury is permissible and should be granted. (People v. Heard, supra, 31 Cal.4th at p. 966.) 78 II. THE TRIAL COURT PROPERLY EXCUSED PROSPECTIVE JUROR NO.2361 FOR CAUSE BASED UPON HIS VIEWS OF THE DEATH PENALTY In his second argument, appellant contends that the trial court erroneously excused Prospective Juror No. 2361for cause, requiring reversal of his conviction and judgment. (AOB 61-71.) Despite his oral vacillations and self-contradictions, Prospective Juror No. 2361 consistently stated a firmly-held beliefthe death penalty should notbe utilized as a penalty. A review of the record reveals substantial evidence supports the trial court’s ruling. The trial court, therefore, acted well within its broad discretion in excusing Prospective Juror No. 2361 for cause. A. The Jury Questionnaire — After the jurors were screened for hardship and questioned whether they would be unable,in this or any case, to impose the death penalty (see ArgumentI, ante) and questioned whether they would,in this or any case, be unable to imposea sentenceoflife withoutthe possibility ofparole,thejurors wereprovidedan eight-page questionnaire to complete. (3CT 830-837[blank questionnaire].) The questionnaire included the following introductory instructions: The following questions concern your feelings about the death penalty. These questions about the death penalty are asked because one ofthe possible sentences for a person convicted of the charges in this case is the death penalty. It is therefore important for the Court to know whether you can befair to both the prosecution and the defense on the issue of the death penalty if you reach that issue. The trial of a defendant charged with an offense which is punishable by the death penaltyis divided in to two possibletrials: the _ 17, The appellate record reflects that Prospective Juror Richard B. was identified as Prospective Juror No. 2361. (2RT 1342.) 79 guilt phase and the penalty phase. In thefirst trial or guilt phase, the jury must decide (1) whether or not the defendantis guilty of first- degree murder and (2) whether or not the “special circumstance” is true. In this case, the special circumstanceallegedis “felony-murder.” A felony-murder occurs when a murder is committed during the commissionofcertain other felonies. In this case,it is alleged that the murder occurred during commission of a burglary and a robbery. If the jury finds a defendantguilty of first-degree murderand finds the special circumstanceto betrue, the secondtrial or penalty phase occurs. During the penalty phase, the jury must decide which of two possible punishments is appropriate. The only possible punishments are (1) the death penalty or (2) life imprisonment without the possibility of parole. The jury makesthis decision between these two penalties based upon additional evidencethatis relevant to the penalty decision. This additional evidence may include circumstancesrelating to the crimes and the backgroundofthe defendant. (3CT 831; 4CT 852 [No. 2361's questionnaire].) In his questionnaire (4CT 852-855), Prospective Juror No. 2361 provided the following underlined responses: 2. Do you understand that if this trial court reaches a penalty phase, one of the two possible choices is the death penalty? No. 3. Do you understandthat if this trial court reaches a penalty phase, the only other choice is life imprisonment withoutthe possibility of parole? Yes. 4. What are your general feelings about the death penalty? I don’t believe in death penalty. 5. Do you believe that California should have the death penalty? Please explain your answer. No. . 6. Do you believethat the death penalty is used too often or too little? Please explain your answer. No. It should be used.'” 7. Do you belong to any group(s) that support either eliminating or increasing use of the death penalty? If yes, please namethe group(s) and explain your view. No. 8. Are your viewsonthe death penaltybased uponreligious principles? If yes, please explain. No. 9. Regardless of your views on the death penalty, would 18. During individual questioning, the trial court clarified that Prospective Juror No. 2361 intended the response to Question6 to read, “No, it should not be used.” (2RT 1345,italics added.) 80 you, as a juror, be able to vote to impose the death penalty on anotherpersonifyou believed, after hearing all ofthe evidence, that the penalty was appropriate? Please explain your answer. No. 10. What do you believe the purposeofthe death penalty to be? I don’t believe in death penalty. (4CT 852-854.) Prospective Juror No. 2361 circled “Disagree” as the response to the statement, “Anyone who kills another person during the commission of a robbery or burglary should automatically receive the death penalty.” (4CT 854.) Prospective Juror No. 2361 underlined “Agreed”as the responseto the statement, “Anyone who kills another person during the commission of a robbery or burglary should automatically receive life imprisonment without the possibility of parole.” (4CT 854.) Prospective Juror No. 2361 circled “Yes” as the response to the question,“Ifa defendant were charged with first- degree murderandthe special circumstance of murder committed during a robbery or burglary, would you refuse to find the defendant guilty of first- degree murder, regardless of the evidence, in order to avoid the issue of the death penalty?” (4CT 854.) Prospective Juror No. 2361 circled “No”as the response to the question, “If you found the defendant guilty of first-degree murder, would you refuse to find the special circumstance true, regardless of the evidence,in order to avoid the issue of the death penalty?” (4CT 854.) | Prospective Juror No. 2361 circled “No” as the response to the question, “Ifyou found the defendantguilty offirst-degree murder, would you find the special circumstance true, regardless of the evidence,in order to be able to consider the issue of the death penalty?” (4CT 855.) Prospective Juror No. 2361 circled “Yes”as the response to the question, “If the trial reached a penalty phase, would you vote to imposelife imprisonment without the possibility ofparole regardless ofthe evidence?” (4CT 855.) Prospective © Juror No. 2361 circled “No” as the response to the question, “If the trial 81 reached a penalty phase, would you vote to impose the death penalty regardless of the evidence?” (4CT 855.) Prospective Juror No. 2361 circled “Yes” as the responseto the question, “Do you believethat life imprisonment without the possibility of parole is a more severe punishment than the death penalty?” (4CT 855.) Prospective Juror No. 2361 circled “Not sure”as the response to the question, “Do you have any conscientious objectionsatall to the death penalty which might impair yourability to be fair and impartial to the prosecution in a case in which the prosecution is seeking the death penalty?” (4CT 855.) He circled “No”as the response to the question, “Do you have anyfeelings at all in favor of the death penalty which are so strong as to impair yourability to be fair and impartial to the defense in a case in which the death penalty is sought?” (4CT 855.) Finally, in response to the question, “In the past ten years, have your views regarding the death penalty changed?” Prospective Juror No. 2361 wrote, “I don’t believe in death penalty.” (4CT 855.) B. Voir Dire Of Prospective Juror No. 2361 Asdiscussed in ArgumentI, ante, before the prospective jurors were given the written juror questionnaire (3CT 830-837 [blank copy]), thetrial court asked the prospective jurors, as a group, whether any ofthem would be unable to vote for death: “Now, without knowing anything atall aboutthis case, is there any juror sitting in the audience right now that, regardless of what the evidence might be, has such feelings aboutthe death penalty that he or she would be unable to impose the death penalty in this case?” (2RT 1267.) Ten prospectivejurors respondedaffirmatively. They were questioned individually and excused by the court. (2RT 1267-1271.)The remaining 19. The process wasrepeated for a second group ofjurors called into the courtroom, and six prospective jurors responded affirmatively, were individually questioned, and were excused by the court. (2RT 1283-1285.) 82 jurors, including Prospective JurorNo. 2361, were provided the questionnaire and instructed to complete it and return at 1:30 p.m. (2RT 1272, 1289.) After the prospective jurors, including Prospective Juror No. 2361, completed and submitted the questionnaires (2RT 1291), theywere summoned to the courtroom and 14 wereseated in the jury box. (2RT 1295-1296.) The court discussed someofthe applicable legal principles with the prospective jurors, including that the defendant is presumed innocent. (2RT 1298.) The trial court also read the penalty instructions re aggravating and mitigating evidence (2RT 1299-1302) and asked the jurors collectively whether they could comply with instructions (2RT 1303), whether they could weigh aggravating and mitigating factors (2RT 1303), and whether the jurors would be able to select the death penalty (2RT 1304). One prospective juror (No. 1836), replied that she could not do so. (2RT 1304-1305.) The court then individually asked two of the prospective jurors questions about the answers each provided on the questionnaires. (2RT 1305- 1309.) Individual questioning followed byfirst appellant’s attorney (2RT 1309-1319) then the prosecutor (2RT 1319-1339). The prosecutor challenged Prospective Juror No. 1836 for cause, but the trial court denied the motion. (2RT 1341.) Prospective Juror No. 2361 was amongthe next group of prospective jurors who werecalled from the audience section of the courtroom to be seated in the box and questioned. (2RT 1342.) The trial court questionedthis group collectively by referring to questions discussed with the first group. QRT 1343-1345.) Thetrial court then questioned Prospective JurorNo. 2361 individually about his answers onthe questionnaire. (2RT 1345-1347.) Specifically, as to Question 6 on Prospective Juror No. 2361’s questionnaire, the trial court clarified that Prospective Juror No. 2361’s response was “No, [the death 83 _ penalty] should not be used” rather than the response written on the form (“No, it should be used.”). (2RT 1345.) Thetrial court further inquired of Prospective Juror No. 2361 why he had not answered affirmatively in the morning session whenthetrial court asked whether anyone would be unable to impose the death penalty. Prospective Juror No. 2361 responded, “When . I read the questionnaire outside, that’s when I made my mind up. I wasn’t sureabout it in here, about the death penalty.” (2RT 1346.) Thereafter, Prospective Juror No. 2361 equivocated and said he mightbe able to vote for the death penalty if he felt the evidence warranted it. (2RT 1346-1347.) Appellant’s attorney questioned Prospective Juror No. 2361 individually and solicited the response,“True,”to the statement, “I don’t like to do it, but I’d do if it if was warranted under the evidence becauseit’s my duty.” (2RT 1347.) As to Prospective Juror No. 2361, the prosecutor | engaged in the following colloquy: [THE PROSECUTOR]: [Prospective Juror No. 2361], as you sit here today, do you believe you could vote to impose death — _ PROSPECTIVE JUROR[No.2361]: Yes. [THE PROSECUTOR]: You could makethatvote, ifthe evidence and the law warrantedit, and be okay with your own conscience? PROSPECTIVE JUROR [No. 2361]: Yeah, depending on the evidence. [THE PROSECUTOR]: I’m sorry? PROSPECTIVE JUROR[No.2361]: Depending on the evidence. [THE PROSECUTOR]: Is there a reason whythe questionnaire asked you that question, or asked you the question of whether or not you could impose death on someone, despite your personal views, you indicated that you couldn’t? [{] Have you changedyour mind since the questionnaire? PROSPECTIVE JUROR[No.2361]: No. (2RT 1348-1349, emphasis added.) The prosecutor challenged Prospective Juror No. 2361 for cause based upon the answers he ‘provided on the questionnaire. Appellant’s counsel contested the challenge. (2RT 1357.) Thetrial court sustained thechallenge, 84 finding that Prospective Juror No. 2361 stated during individual questioning that his views had not changed from the answers on his questionnaire. (2RT 1358.) | C. The Record Supports The Trial Court’s Finding Prospective Juror No. 2361's Views OfThe Death Penalty Would Substantially Impair The Performance Of His Duties As A Juror As morefully discussed in ArgumentI, ante, decisions of the United States Supreme Court and this Court establish that a prospectivejuror may be challenged for cause based upon his or her views regarding capital punishment if those views would “prevent or substantially impair’ the performance of the juror’s duties as defined by thetrial court’s instructions and the juror’s oath. (Wainwright v. Witt, supra, 469 U.S. at p. 424; Witherspoon v Illinois, supra, 391 U.S.at p. 516, fn. 9 & 522, fn. 21; People v. Chatman, supra, 38 Cal.4th at p. 365; People v. Schmeck (2005) 37 Cal.4th 240, 262; People v. Stewart, supra, 33 Cal.4th at pp. 440-441.) Before granting a challenge for cause concerning a prospective juror over the objection of another party, a trial court must have sufficient information regarding the prospective juror’s state of mindto permit a reliable determination as to whether the juror’s views would preventor substantially impair the performance ofhis or her duties in the case before the juror. (People v. Ochoa, supra, 26 Cal.4th at p. 431.) A reviewing court will uphold the trial court’s ruling if it is fairly supported by the record; the trial court’s | determination ofthe prospectivejuror’s true state ofmind is binding when the prospective juror has made statements that are conflicting or ambiguous. (People v. Schmeck, supra, 37 Cal.4th at p. 262; People v. Chatman, supra, 38 Cal.4th at p. 365; People v. Smith, supra, 30 Cal.4th at pp. 601-602.) 85 In this case, substantial evidence supportsthetrial court’s conclusion that Prospective Juror No. 2361's view of capital punishment would “prevent or substantially impair’ the performanceofhis duties; thus, this Court should deferto the trial court’s assessment ofProspective Juror No. 2361's equivocal oral statements when confronted about his written answers. On the one hand, Prospective JurorNo. 2361 maintainedin his written questionnaire that he did not believe in the death penalty, it should not be used, and he would always vote against it. (4CT 852-855.) Yet Prospective Juror No. 2361 also orally claimed he would consider imposing the death penalty “if [he] felt the evidence warrantedit.” (2RT 1346, 1348-1349.) But Prospective Juror No. 2361 further maintained that he had not “changed his mind since the questionnaire.” (2RT 1349.) The waffling answers provided by Prospective Juror No. 2361 when confronted by his contradictions clearly conveyed he would be unableto faithfully and impartially apply the law in this case. Given Prospective JurorNo. 2361's vacillation, as well as his beliefthe death penalty should not be used, the trial court’s conclusion that he was unfit as a juror must be upheld. (See People v. Navarette (2003) 30 Cal.4th 458, 490 [“When a prospectivejuror has madeconflicting statements regardinghisorherability to remain impartial and apply the law despite strong personal beliefs, we accept as binding thetrial court’s assessment.”]; People v. Maury (2003) 30 Cal.4th 342, 377 [because “the potentialjurors’ statements were equivocal and conflicting regarding their ability to render a death verdict[,] . . . we must defer to the trial court’s determination of their states of mind”); People v. Jones, supra, 29 Cal.4th at p. 1247 [excused juror “earlier gave sharply conflicting statements,|] and sothetrial court’s determination of[his] state of mind,i.e., that [he] would be substantially impairedin the performanceofhis duties as a jurorin this case, is binding on us”’], original italics; see alsoid. at p. 1249.) 86 Even if Prospective Juror No. 2361’s views about the death penalty were not inconsistent, substantial evidence supports the trial court’s finding that he was unfit to serve as a juror. Prospective Juror No. 2361’s juror questionnaire and voir dire revealed that he would not impose the death penalty evenin the worst cases — and would even gosofar as to decline to convict a defendant of first-degree murder to avoid the issue of the death penalty — becausehe firmly believed it was extreme and contrary to his belief system. (2RT 1349; 4CT 852-855.) Such views substantially impaired his ability to be fair notwithstanding his equivocations to the contrary. (See,e.g., People v. Maury, supra, 30 Cal.4th at p. 377 [“because the challenged prospective jurors indicated either that they could not apply the death penalty | under any circumstance, or were not prepared to imposethe death penalty and were undecided as to their ability to do so, the trial court did not err in excusing them”’].) The court therefore properly excused Prospective JurorNo. 2361 for cause. 87 HII. THE TRIAL COURT ACTED WITHIN ITS DISCRETION IN DENYING APPELLANT’S MOTION FOR INDIVIDUAL SEQUESTERED DEATH QUALIFICATION VOIR DIRE Appellant contendsthat thetrial court erroneously denied his motion for generalized individual, sequestered voir dire concerning death qualification. (AOB 72-80.) As appellant reluctantly acknowledges (AOB 73, fn. 41), individual sequestered voirdire is not constitutionally mandated, and this Court has repeatedly rejected claims to the contrary. Moreover, in this case the trial court did not abuse its discretion when it concluded generalized sequestered voir dire was unnecessary to select the jury for appellant’s October 1997trial. Thus, this claim fails. A. Relevant Jury Selection Proceedings On July 16, 1997, appellant filed a three-page motion requesting sequestered voir dire. (CT 683-686.) The motion arguedthat the trial court had discretion under Code of Civil Procedure section 223 to permit - sequestered, individual voir dire (3CT 684) and that the type of voir dire articulated in Hovey v. Superior Court, supra, 28 Cal.3d 1, 80-81, was “the most effective methodofpreventing prospectivejurors from being influenced by others in the responses to the death-qualification aspect of the voir dire process and enabling the parties to discover bias.” (3CT 685.) On the morning of October 8, 1997, counsel made their first appearance before the judge (Hon. Andrew Kauffman) who ultimately presided overthe trial. Appellant was not present. The parties informed the court that the only pending pretrial motion was appellant’s motion for sequestered death qualification voir dire. Appellant had not waived his presence for the hearing on that motion. (IRT 1011-1012.) The parties 88 agreed to defer the sequestered voir dire motion until the day jury selection commencedin appellant’s case. (IRT 1014.) Prior to the commencementofjury selection, the parties met with the trial court in chambers” “with regard to the procedure to be followedthis morning.” Both counsel acknowledgedthat they had agreed to the procedures that had been discussed. (2RT 1287.) The court screened two panels of prospective jurors, excusing somefor financial hardship and others for cause based upontheir professed inability to vote for the death penalty. (2RT 1248- 1285.) During a break between the second and third panel of prospective jurors, the trial court then turned to the defense motion for sequestered voir direand addressed it as follows: THE COURT: As long as we’re meeting in the absence of the prospective jurors, Mr. Lindars, let’s take up the motion that you had previously filed, and that would be for the sequestered voirdire. MR. LINDARS: Yes. THE COURT: Would you like to be heard on your motion? MR. LINDARS: Actually, I anticipated that what used to be referred to as the Witherspoon questions, or the questions about whetheror not they could be impartial on the issue ofthe death penalty, or whether or not they had such conviction that they would never be able to impose it, would be part of the sequestered voirdire. So since that’s already been accomplished,it’s kind ofa mootas to that. THE COURT: Submitit, Mr. Sortino? MR. SORTINO:I join in Mr. Lindar’s request and submit it on his pleading. . THE COURT: Youjoin in his request for sequestered voir dire? MR. SORTINO:I don’t have a problem with it ifhe wants to conduct it that way, and the Court wants to conduct it that way. I don’t have a problem with it either. I think we get more candid answersthat way, but I know the Court 20. This in-chambers conference was not reported; it was memorialized on the record after the first group of jurors were called and initial selection procedures commenced. (2RT 1287-1288.) 89 has discretion to go either way, and I’1l submitit on his papers. THE COURT: Motion will be denied. (2RT 1287-1288.) | Thereafter, as discussed more fully in ArgumentI, ante, the third and fourth panels of prospective jurors were called, sworn, and questioned. The trial court excused six additional prospectivejurors for cause after they stated they would be unable or unwilling to vote to impose a punishmentof death regardless of the evidence or circumstances. The remaining 81 jurors completed an eight-page written questionnaire presenting 22 questions focusing upon capital punishment. (2RT 1560; 3CT 830-837 [blank questionnaire].) The prospectivejurors who completed written questionnaires were questioned in the presenceofotherjurors by the court, defense counsel, and the prosecutor in the presence of the other panel members and were subject to challenges for cause. (2RT 1291-1560, 3RT 1561-1618.) B. Sequestered, Individual Voir Dire Is Not Constitutionally Compelled Initially, appellant claimsthat a voir dire procedure that does notpermit individual’ sequestered voir dire concerning death-qualification is constitutionally inadequate. (AOB 73-76.) In Hovey v. Superior Court, supra, 28 Cal.3d 1, this Court invoked its “supervisory authority over California criminal procedure”andarticulated a rule of sequestration for the qualification ofjurors to serve on death penaltyjuries. (/d. at p. 80.) Code of Civil Procedure section 223, which becameeffective as part of Proposition 115 on June 6, 1990 (see Tapia v. Superior Court (1991) 53 Cal.3d 282, 299-300), provided at the time of appellant’s 1997 trial that the voir dire of prospective jurors in capital cases “shall, where practicable, occur in the presence ofthe other jurors.” (Code Civ. Proc., § 223.) As this Court has previously observed, “This provision had the intent and effect of abrogating the sequestration rule of Hovey, supra, 28 Cal.3d 1, 168 Cal.Rptr. 128, 616 90 P.2d 1301, which wasnot constitutionally compelled. [Citations.]” (People v. Stitely (2005) 35 Cal.4th 514, 533, 537 fn.9.) Appellant acknowledges, in a footnote, that this Court has repeatedly rejected similar claims andstates that he includesthis claim to “ensure federal review.” (AOB 73, fn. 41, citing People v. Jurado (2006) 38 Cal.4th 72, 101; People v. Stitely, supra, 35 Cal.4th at pp. 536-537; People v. Box (2000) 23 Cal.4th 1153, 1180.) Appellant offers no persuasive reason for this Court to revisit its longstanding rejection of such claims; the instant claim should, therefore, be similarly rejected. C. The Trial CourtWasNotRequired To Affirmatively Acknowledge Its Discretion To Permit Sequestered Voir Dire Second, appellant contendsthat the record fails to demonstrate that the trial court was awareof, and exercised, its discretion under Code of Civil Procedure section 2232”to permit individual sequesteredvoirdire andthat the 21. At the time of appellant’s trial in 1997, Code of Civil Procedure section 223 provided as follows: In a criminal case, the court shall conduct the examination of prospective jurors. However, the court may permit the parties, upon a showing of good. cause, to supplement the examination by such further inquiry as it deems "proper, or shall itselfsubmitto the prospectivejurors upon such a showing,such additional questionsby the parties as it deems proper. Voir dire of any prospective jurors shall, where practicable, occur in the presence of the other jurors in all criminal cases, including death penalty cases. Examination of prospective jurors shall be conducted only in aid of the exercise of challenges for cause. Thetrial court’s exercise of its discretion in the manner in which voir dire is conducted shall not cause any conviction to be reversed unless the exercise ofthat discretion has resulted in a miscarriage ofjustice, as specified in Section 13 of Article VI of the California Constitution. (Addedby Prop. 115, approved by voters, Primary Elec. (June 5, 1990).) 91 voir dire conducted in the presence of other jurors violated his federal constitutional rights to due process and equal protection under the “liberty interest” principle (referencing Hicks v. Oklahoma (1980) 447 U.S. 343, 346). (AOB 76-78.) In support of his claim, appellant notes that the trial court did not “explain”his denial ofappellant’s motion for sequestered voir dire. (AOB 77.) He is mistaken. Here, it is clear the trial court was aware of the provisions of Proposition 115 and the court’s discretion to conduct voir dire. Nothing in the record suggests that the trial court believed it lacked discretion to permit individual, sequestered voir dire. Rather, the record includes at least two explicit references to the court’s discretion: the first in the text of appellant’s motion for individual, sequestered voir dire, which expressly referenced Code of Civil Procedure section 223 (3CT 684), and the second bythe prosecutor, whostated during discussion of the motion that he was awarethatthe trial court had discretion not to permit sequestered voir dire (2RT 1288). Nothing in Code ofCivil Procedure section 223 requiredthetrial court to provide a statement of reasons for following the statutory preference of non-sequestered voir dire. Typically, a statement ofreasons is required where a trial court contravenes the statutory presumption. Indeed, the cases referenced by appellant illustrate this pattern. (See AOB 77-78, referencing People v. Romero (1996) 13 Cal.4th 497, 532 [remand required wheretrial court struck prior conviction without stating reasons as required by section 1385(a)]; People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977 [record must reflect records for exercising discretion to reduce felony to misdemeanorundersection 17(b)].) Nor can appellantfind assistance in cases wheretrial courts provided reasons that could be examined on appeal (see AOB77-78, citing People v. Waidla (2000) 22 Cal.4th 690, 713-714 [stated reasons not unreasonable]; People v. Bigelow (1984) 37 Cal.3d731 , 743 [trial 92 court erroneously ruled that California law does not permit appointment of advisory counsel]; Ex Parte Brumback (1956) 46 Cal.2d 810, 813 [trial court erroneously stated lacked discretion to authorize bail on appeal]; Covarrubias v. Superior Court (1998) 60 Cal.App.4th 1 168, 1183 [trial court’s comments reflected belief it lacked discretion to permit sequestered voir dire]; People v. Downey (2000) 82 Cal.App.4th 899, 912 [trial court erroneously stated sentence required to be consecutive].) And no California court has held that a statement of reasons is required where a court denies a request for sequestered voir dire. (See, e.g., People v. Green (1980) 27 Cal.3d 1, 24-26 [referencing prior decisions requiring weighing of prejudicial effect against probative value be apparent from record].) Asnoted above, sequestered voir dire is not constitutionally mandated.- (See Part B, ante.) Code of Civil Procedure section 223 expressly states a presumptionin favor ofvoir dire conductedin the presenceofthe otherjurors. Thetrial court properly exercisedits discretion and did noterr in declining to provide reasons for its denial of appellant’s motion for Hovey voirdire. D. The Trial Court Did Not Abuse Its Discretion In Denying Appellant’s Motion For Sequestered Voir Dire Third, appellant contendsthat thetrial court abusedits discretion under Code of Civil Procedure section 223 by denying the defense request for individual sequestered voir dire and that this abuse of discretion resulted in a violation of his federal constitutional rights to due process and equal protection underthe “liberty interest” principle since the procedures used were inadequate to identify partial or unqualified jurors. (AOB 78-80.) Citing language from this Court’s decision in Hovey, appellant claims that the group voir dire procedure “created a substantial risk that [appellant] was tried by jurors who were not forthright and revealing of their true feelings and attitudes toward the death penalty and were ‘desensitized’ to the duty to 93 determine the penalty to be imposed.” (AOB 79). He arguesthat the error must be evaluated under the federal constitutional standard—whether it was harmless beyond a reasonable doubt — to determine the impactofthe error and that the exposure of jurors to death-qualification of other jurors cannot be found harmless. (AOB 78, 80.) Again, appellant is mistaken. An appellate court reviewsa trial court’s grant or denial of a motion conceming the conductofthe voir dire of prospective jurors for abuse of discretion. (See Code Civ.Proc., § 223.) A trial court abusesits discretion whenits ruling falls “outside the bounds ofreason.” (People v. Ochoa, supra, 19 Cal.4th at p. 408 [internal quotation marks omitted].) Appellant provides no “specific example of how questioning prospective jurors in the presence of other jurors prevented him from uncovering juror bias.” (People v. Stitely, supra, 35 Cal.4th at p. 537.) The court permitted him to individually question the prospective jurors who completed the written questionnaire concerning their views of capital punishment; counsel did not seek to address any topic that was refused. Indeed, based upon this questioning and the 22-question written © questionnaire, appellant’s counsel successfully challenged three prospective jurors for cause on this basis. (2RT 1384-1385, 1498, 1548-1550.) And no circumstancearose during thejury selection that promptedeither party to seek sequestered voir dire of an individual juror. Appellant’s claims should be rejected. 94 IV. ‘THE SELECTION OF A DEATH-QUALIFIED JURY IS CONSTITUTIONAL Oncejury selection hadbegun,appellant’s counsel orally requestedthat the 22 prospective jurors who were excused for cause prior to completing the juror questionnaires becauseoftheirstated inability to vote for the punishment of death be permitted to remain in the pool of jurors from which his jury would be selected. The trial court denied this request. (2RT 1268.) Appellant references this denial as an objection to California’s death- qualification procedures and claims that the procedures utilized to select California capital juries, including appellant’s jury, resulted in a jury predisposed to convicthim andviolated his Sixth and Fourteenth Amendment right to a trial by an impartial jury as well as his Eighth and Fourteenth Amendmentright to a reliable death sentence. He claims these violations require reversal of his convictions and penalty judgment. (AOB 81-95; see also AOB 32, fn. 20.) This claim is not preserved for appeal and otherwise lacks merit. Initially, the federal constitutional claims nowraised by appellant have been waived by appellant’s failure to state a timely and specific objection on federal constitutional grounds in the trial court. (2RT 1268.) Appellant articulated no statutory or constitutional basis for his objection in the trial court, and his written motion concerning jury selection invoked merely the trial court’s statutory discretion to permit sequestered andindividualvoirdire. (3CT 683-686.) Appellant has waivedthe issue by failing to raise it in the trial court. (See generally People v. Jenkins, supra, 22 Cal.4th at p. 1000.) In essence, appellant argues that this Court was correct when it observed in Hovey v. Superior Court, supra, 28 Cal.3d at pp. 74-75, that exposure to the death-qualification process created a substantial risk that 95 _ jurors would be morelikely to sentence a defendant to death andasksthis Court to reinstate that holding. (AOB 83-86.) As appellant acknowledges (AOB82), both this Court‘and the United States Supreme Court have rejected his assertions. (Lockhart v. McCree (1986) 476 U.S. 162, 176 [death qualification does not violate Sixth or Fourteenth Amendments]; People v. Jurado, supra, 38 Cal.4th at p. 101; People v. Carter (2005) 36 Cal.4th 1215, 1247-1248 [individual, sequestered voir dire not required by Constitution]; | People v. Lenart (2004) 32 Cal.4th 1107, 1120; People v. Jackson (1996) 13 Cal.4th 1164, 1198-1199 [“social science evidence” offered by the defendant to show “that death-qualified juries are more proneto convict than those not thus qualified” did not support a constitutional prohibition of death qualification].) | These contentions have previously been rejected by this Court and — should be rejected again as appellant has not offered any new or persuasive reason torevisit its longstanding rejection of such claims. 96 V. THE TRIAL COURT’S EVIDENTIARY RULINGS CONCERNING IMPEACHMENT OF PROSECUTION WITNESS GLADYS SANTOS DID NOT VIOLATE APPELLANT’S CONSTITUTIONAL RIGHTS, AND,IN ANY EVENT, ANY ERROR WAS HARMLESS | Appellant contendsthatthetrial court prejudicially restricted the cross- examination of prosecution witness Gladys Santos on matters relevant to her credibility, thereby violating his rights to due process,a fair trial, to confront | witnesses, and to a reliable penalty determination as guaranteed by the state and federal Constitutions. (AOB 96-120.) Specifically, appellant contests the trial court’s rulings regarding the following areas of inquiry: (1) the conduct underlying Santos’s two misdemeanorpetty theft convictions (AOB 96, 103- 105); (2) whether Santos “had a practice of supplying methamphetamine on a barter system in exchangefor stolen property” and “her concerns aboutchild custody and public assistance as those areas weredirectly related to Santos’s willingness to testify truthfully regarding her own activities as a drug supplier’ (AOB 97, 105-106); and (3) the prosecutor’s contacts with the Department of Children and Family Services on Santos’s behalf (AOB 106). Appellant did not preserve his arguments on the second and third points for appeal and, therefore, they are waived. Norhas appellant shown that any of the excluded evidence now cast as “restrictions” on cross- examination would have cast Santos in a more negative light than her testimony itself created, produced a significantly different impression of Santos’s testimony, or precluded a defense theory. In any event, because any error was harmless undereither the state or federal constitutional standard of prejudice, this claim fails. 97 A. Summary Of RelevantTrial Proceedings During trial, a hearing was held to address issues relating to the testimony ofprosecution witness Gladys Santos, including matters concerning- impeachment and statements madeto her by appellant and Drebert. (SRT 2412-2422.) | The trial prosecutor identified the potential impeachment issues as having been outlined in a discovery memorandum given to both defense counsel on the preceding day: Santos had suffered two misdemeanorpetty theft convictions; the District Attorney’s Office had relocated Santos at one point becauseofthreats to her and her family aboutthe case; in April 1997 the Department of Children Services had threatened to remove Santos’s children because the Departmentbelieved Santos’s status as a witness endangered her | children in light of threats she had received; and, in response, the trial prosecutor had personally called the County and Children’s Services on Santos’s behalfbecausehe believed it was inappropriate for the Department to threaten to remove Santos’s children solely on the basis of her being a threatened witness. (SRT 2413-2414.) Earlier on the day of the hearing, Drebert’s attorney informed the prosecutor that she intended to ask Santos whether she was a “speed” or amphetaminesupplier for appellant or Drebert. The prosecutor had Detective Mena — who wasupstairs with Santos during the courtroom discussion — directly ask Santos whether she was a drug supplier. Santos replied that on two occasions in October 1995, aroundthe time she met appellant, she picked up a quarter gram of methamphetaminefor appellant in order to get Joanne Rodriguez “offthe hook”since appellant was bugging Rodriguezto get speed and heroin for him. However, Santos denied being appellant’s “supplier.” (SRT 2414.) 98 The prosecutor argued that the two misdemeanor petty theft convictions should not be permitted for impeachment because they were misdemeanors and unduly prejudicial under Evidence Code section 352. (SRT 2414-2415.) Thetrial court replied, “the law is quite clear that the convictions themselves are hearsay, so the convictions themselves are not admissible. [{] However,ifany witnesses are prepared to testify exactly what she did on those occasions, that would be admissible.” In response, appellant’s counsel informed the court that Santos was on probation and argued her probationary status was admissible under federal and California case law. Thetrial court concurred with appellant’s counsel. (SRT 2415.) In response, the prosecutorstated that Santos wasnot currently on probation, and ' appellant’s counsel clarified that he meant Santos was onprobationat the time she spoketo the police. (SRT 2415.) The prosecutor responded that Santos was on misdemeanorprobation for one case whenshe informedpolice ofthe statements appellant and Drebert made to her. (SRT 2415-2416.) Santos had been off probation in the other misdemeanorcase for eight or nine months. (SRT 2416.) Thetrial court ruled that defense counsel could asked Santos whether she was on probation for a criminaloffenseat the time she gavethe statement to police but could not inquire about the particular underlying offense. The prosecutor argued the probation should be identified as misdemeanor probation to avoid giving the jury a false impression aboutthe seriousness of the offense. The court responded that this characterization would be appropriate. (SRT 2416.) Next, the court notedthat the dealings with the DepartmentofChildren Services did not appear “relevant in the least.” Both defense counsel represented they were not going to pursue that subject. Thetrial court ruled 99 that “an inquiry into [Santos] supplying narcotics in the past ... [was] appropriate” for cross-examination. (SRT 2416.) Aboutthe witnessrelocation issue, appellant’s counsel asked whether the defense could inquire whether Santos requested to be relocated. The court ruled that the fact ofthe request for relocation was admissible, but so was the reason for the request. For purposesofthe record, the trial prosecutor stated that he was not personally involved in the relocation; rather, fundsto relocate Santos were obtained by West Covinathrough the District Attorney’s Office. (SRT 2417.) - B. Applicable Law Generally speaking, application—even misapplication—ofordinaryrules of evidence doesnotrise to the level of a constitutional violation; complete exclusion of the defense theory could impair an accused’s due processright to present a defense, but the exclusion of defense evidence on a minor or subsidiary point does not. (People v. Fudge (1994) 7 Cal.4th 1075, 1102- 1103.) Review of such deprivations are judged underthe state-law harmless error standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836. (Ud. at p. 1103.) Concerning a criminal defendant’s constitutional right to confront the witnesses against him: As the high court has explained, cross-examination is required in order “to expose to the jury the facts from which jurors . . . could appropriately draw inferencesrelating to the reliability ofthe witness.” (Davis v. Alaska (1974) 415 U.S. 308, 318, 94 S.Ct. 1105, 39 L.Ed.2d 347.) “[A] criminal defendantstates a violation of the Confrontation Clause by showingthat he wasprohibited from engaging in otherwise appropriate cross-examination designed to showaprototypical form of bias on the part of the witness ....” (Delaware v. Van Arsdall (1986) 100 475 U.S. 673, 680, 106 S.Ct. 1431, 89 L.Ed.2d 674.) Thetrial court, of course, has a “wide latitude” of discretion to restrict cross- examination and may imposereasonable limits on the introduction of such evidence. (/d. at p. 679, 106 S.Ct. 1431.) Thus, “unless the defendant can showthatthe prohibited cross-examination would have | produced ‘a significantly different impression of [the witnesses’] credibility’ [citation], the trial court’s exercise of its discretion in this regard doesnotviolate the Sixth Amendment.” (People v. Frye (1998) 18 Cal.4th 894, 946, 77 Cal.Rptr.2d 25, 959 P.2d 183, quoting Delaware v. Van Arsdall, supra, 475 U.S.at p. 680, 106 S.Ct. 1431.) (People v. Smith (2007) 40 Cal.4th 483, 513.) Indeed, in mostinstances the appellate courts will uphold the exercise of discretion in this regard even if another court might have ruled otherwise. (People v. Clair (1992) 2 Cal.4th 629, 655; People v. Feaster (2002) 102 Cal.App.4th 1084, 1092.) C. The Trial Court Did Not Improperly Restrict Cross-examination Of Santos 1. Conduct Underlying Misdemeanor Convictions For Petty Theft Appellant claims that the trial court prejudicially restricted the cross- examination of prosecution witness Gladys Santos by ruling that defense counsel could not question her directly about the conduct underlying her two misdemeanor petty theft convictions. but was required to elicit evidence regardingthe underlying conduct through other witnesses. (AOB 103-105.) Appellant has not showneither constitutional or prejudicial error. At trial, the trial court ruled that, “the law is quite clear that the convictions themselves are hearsay, so the convictions themselves are not admissible. []] However, ifany witnessesare preparedto testify exactly what she did on those occasions, that would be admissible.” (SRT 2415.) 101 Subsequently, the trial court ruled that defense counsel could inquire whether Santos was on probationat the time she gave the statementto police but could not ask her aboutthe particular offense. (SRT 2416.) Thetrial court did not violate appellant’s constitutional rights to due process and to confront witnesses byrestricting the way in which defense counsel could pursuethis line ofinquiry. As appellant highlights (AOB 102), this Court has previously held, “Past criminal conduct involving moral turpitude that has some logical bearing on the veracity of a witness in a criminal proceeding is admissible to impeach,subject to the court’s discretion under Evidence Codesection 352.” (People v. Harris (2005) 37 Cal.4th 310, 337, citing People v. Wheeler (1992) 4 Cal.4th 282, 295-297; see also People v. Smith (2007) 40 Cal.4th 483, 512-513 [limitation of cross-examination of prosecution witness].) Appellantcorrectly observes that proofofimpeaching misdemeanorconduct maybeelicitedfrom the witness. (People v. Wheeler, supra, 4 Cal.4th at D. 300, fn. 14.) To the extentthe trial court ruled that the defense would need to present and question witnesses other than Santos to elicit the conduct underlying Santos’s prior misdemeanor convictions (SRT 2415-2416), that ruling appears incorrect. Yet the trial court’s ruling did not completely exclude evidence of a defense theory, and because appellant cannot“showthat the prohibited cross-examination would have produced‘a significantly different impression of [the witnesses’] credibility’[citation], the trial court’s exercise ofits discretion in this regard does notviolate the Sixth Amendment.” (People v. Frye (1998) 18 Cal.4th 894, 946.) As a result, this claim fails. Appellant essentially argues that the trial court’s requirement of extrinsic proof of the conductrestricted his ability to cross-examine Santos “regarding whether her probationary status that arose from the petty theft convictions increased the amountofleverage the prosecution hadto press for 102 her cooperation; and (2) whether Santos’s testimony implicating [appellant] arose from a desire to deflect suspicion away from herself for possession of the property stolen in the charged crimes.” (AOB 105.) He is mistaken. First, the appellate record doesnotinclude a description ofthe conduct underlying the two misdemeanortheft convictions; therefore, it is not clear that the conduct bore any “nexus” with the current charges, could support an argument that Santos was a “fence,” or provided any motive for Santos to falsely inculpate appellant. Although appellant now notesthat “Santos was on probationfor [petty] theft crimes and the charged crimes weretheft crimes” (AOB 105), by statutory definition Santos’s petty theft offenses could not have approachedthe violence and seriousness of appellant’s home-invasion robberies. | | Second, appellant’s focus at trial concerned the introduction of evidence that Santos was on probation for one of her two misdemeanor convictions at the time she gave information to Detective Ferrari. (SRT 2415.) And such evidence was introduced, albeit preemptively by the prosecution. (6RT 2518.) Any leverage available to the police or prosecution would have derived from Santos’s probationary status, not the conduct underlying her misdemeanor convictions. The court’s ruling did not limit counsel’s ability to inquire whether Santos’s probationary status impacted her interactions with the police. Third, contrary to appellant’s statement that Santos “was initially arrested in connection with the charged crimes” (AOB 105), the jury was informed that Santos was arrested on January 19, 1996, on the misdemeanor | charge of delaying an officer in the performance of his duties (due to her denial of appellant’s presence inside her apartment). (SRT 2257-2258.) Santos was released from police custody on January 20, 1996, and wasnot prosecuted for interfering with a police officer because her conduct did not 103 aea gettin sn atm ve es Seay bystonnyaitenaaps ae corte,ntemenCe1 Gen oN OARSRE NA Rnd tit tt meet the requirements for filing an offense. (SRT 2307-2308.) Indeed, the charges wererejected for filing within four or five days of January 19, 1996. (SRT 2317.) And although Santos gave J.S.’s answering machine and some jewelry to detectives in January 1996,several days after she wasarrested with appellant (6RT 2521 2522, 2526-2527), nearly four months elapsed until she contacted Detective Ferrari in May 1996 and later revealed appellant’s statements to him on May 21, 1996. (SRT 2450-2451; 8RT 3158-3159.) In May 1996, Santos was not underarrest and wasnot charged with any crime. (SRT 2456.) Finally, the trial court did not absolutely preclude an inquiry into the conduct underlying Santos’s two prior petty theft convictions and allowed other impeachmentof Santos. Moreover, Santos’s testimony on direct and cross-examination yielded evidence unfavorable to her character and permitted the same defense impeachmenttheory as appellant posits the petty theft convictions would have supported. For instance, the jury learned that Santoslied to police when they came to her apartment looking for appellant and was arrested for delaying a police officer (SRT 2257-2258), waited until May 1996to inform the police of appellant’s December 1995 admissionsto the Witters murder and his January 19, 1996 admissionthat he and “the boys” had “played baseball with Mike’s head” (SRT 2454-2455), drove appellantto _Yetrieve the coins he had taken from the Weirs after he told her about the robbery (SRT 2450, 2452), provided methamphetamine to appellant on more than one occasion (6RT 2518-2520) and apparently could obtain drugseasily from friend as a “favor” (6RT 2542), was on misdemeanorprobation in May 1996 whensherevealed appellant’s confession concerning the robberies and murder (6RT 2518), and possessed property stolen from Ruth Weir, J.S. and Michael Martinez in her apartment. 104 Giventhe evidenceintroducedattrial that tended to show Santos was no stranger to the criminal justice system, appellant has not shown that evidenceofthe conduct underlying her two petty theft convictions would have cast Santos in a more negative light than her testimony itself created or produced a significantly different impression of Santos’s testimony. Therefore, this claim fails. 2. Practice Of Supplying Drugs To Third Parties And Concerns About Losing Child Custody Or Public Assistance Benefits Appellant further claimsthe trial court improperly restricted his cross- examination of Gladys Santos by ruling that Drebert’s counsel needed to provide an offer of proof before inquiring whether Santos dealt drugs to persons other than Drebert or appellant, and by excluding an inquiry concerming Santos’s receipt ofpublic assistance benefits pursuant to Evidence Code section 352. (AOB 97, 105-106.) These claims have not been preserved for appeal. Even if preserved, there wasnoerror. Duringthe hearing held prior to Santos’s testimony,the trial court ruled that inquiry into whether Santos supplied narcotics in the past was appropriate. (SRT 2416.) Appellant’s counsel elicited Santos’s denial she sold drugs to other persons during his cross-examination of Santos. (6RT | 2529-2573.)% During a subsequent hearing held concerning whether 22. During direct examination, Santostestified that in October 1995 she twice purchased a quarter gram of methamphetaminefor appellant. On _ the first occasion, Drebert picked up the drugs. (6RT 2518-2519.) On the other occasion, appellant’s sister, Rebecca, picked up the drugs for appellant. (6RT 2519-2520.) On cross-examination, appellant’s counsel asked Santos whether she sold methamphetamineto Joanne Rodriguez, or anyoneelse in the apartment, during the last half of 1995. He further questioned Santos whether she was acquainted with a personreferred to as “Bill.” (6RT 2532.) Santos denied that she was delivering methamphetamine to Rodriguez on the day she met appellant. (6RT 2531.) Santos explained that the second 105 Drebert’s jury would be presented his videotaped interview with Detective Laurie (6RT 2644-2676), Drebert’s counsel stated her intention to ask Santos about receiving public assistance and supplying crystal methamphetamine to people other than Drebert and appellant. Drebert’s counsel alleged Santos was a supplier and dealer of crystal methamphetamine and waslying to keep custody of her children and not lose her public assistance benefits. (6RT 2669-2670.) The prosecutor respondedthat Drebert’s counsel was only trying — to “dirty up” Santos andthat the court should require an offer ofproof. (6RT 2672-2673.) The prosecutor observed that Drebert’s videotaped statement corroborated Santos. The court inquired whether Drebert’s counsel was prepared to call witnesses to testify they engaged in drug transactions with Santos. (6RT 2673.) The court observed that sale ofnarcotics constituted an act of moral turpitude regardless whether a conviction existed and was relevant to credibility, but he would not permit a mere fishing expedition. (6RT 2674.) The court held that the source of Santos’s income, including ‘public assistance, was a collateral matter and excluded such testimony under Evidence Codesection 352. (6RT2674.) Evidence of specific instances of conduct is admissible to attack the credibility of a witness. (Evid.Code, § 1101, subd. (c).) But as this Court occasion on which she provided drugs to appellant, appellant had asked Rodriguez about heroin. Santos described Rodriguez as being “alittle bit uptight,” and Santos told Rodriguez that she would take care of it. (6RT 2534.) Indeed, Santossaid that she obtained methamphetaminefor appellant so that he would not bother Rodriguez about it. (6RT 2534-2536.) She clarified that she was able to get the methamphetamine from a friend as a favor, so it did not cost her anything. Appellant’s counsel additionally asked Santos whether “Bill” was her drug supplier. (ORT 2542.) Santos wasalso cross-examined on the question whether she provided methamphetamineor other drugs to appellant and his companions for moneyor property. (6RT 2534-2536.) She further denied that she had given methamphetamineto appellant, Drebert, or anyone on the day everyone wasarrested. (6RT 2566- 2567.) 106 explained in People v. Eli (1967) 66 Cal.2d 63, “Counsel must not be permitted to take random shotsat a reputation imprudently exposed,or to ask groundless questions ‘to waft an unwarranted innuendointo the jury box’ [citation]... There is also a responsibility on trial courts to scrupulously prevent cross-examination based upon merefantasy.” (/d. at p. 79; see also People v. Ramos (1997) 15 Cal.4th 1133, 1173.) In ruling on an Evidence Code section 352 objection,the trial court is not required to either expressly weigh prejudicial effect against probative value or expressly announce compliance with section 352. (People v. Mendoza (2000) 24 Cal.4th 130, 178.) Asan initial matter, these claims have not been preserved for appeal. In general, a judgment maynot be reversed for the erroneous exclusion of evidence unless “the substance, purpose, and relevance of the excluded evidence was made knownto the court by the questions asked, an offer of proof, or by any other means.” (See Evid. Code, § 354, subd. (a); see also - People v. Guerra (2006) 37 Cal.4th 1067, 1144; People v. Anderson (2001) 25 Cal.4th 543, 580.) Appellant elicited some testimony on the subject of drug sales to third parties but did not seekto elicit information referenced by Drebert’s counsel and did notjoin in the request posed by Drebert’s counsel. (6RT 2529-2573, 2669-2675.) Appellant claims that, although Drebert’s counsel madethe request, the ruling impacted him as well and demonstrated the futility of him making the same request. (AOB 98,fn. 44.) But neither Drebert’s counsel nor appellant’s counsel provided an offer of proof substantiating the proposed inquiry. And Drebert and appellant had different juries and different tactical interests. Indeed, appellant’s counsel understandably refrained from broachingthe child custody question. Afterall, such questions could invite testimony that the Department of Children Services proposed removing Santos’s children from her custodyas a result of 107 appellant’s threats -- testimony thatwouldhave suggested that the Department took appellant’s threats seriously, thereby validating Santos’s claim aboutthe threats, evoking juror sympathy for Santos because appellant jeopardized Santos’s custody of her children, and adding credulity to her recitation of appellant’s confessions and her claims concerningthe propertytaken from JS. and Ruth Weir. In contrast, Drebert’s counsel was not directly saddled with the negative implications of appellant’s conduct. Asthis Court observed in People v. Chatman, supra, 38 Cal.4that p. 344, where the trial court declined to permit the defense to question a prosecution witness concerning unchargedacts ofpotential welfare fraud, “*(T]mpeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation whichfelony convictionsdo not present. Hence, courts mayand should consider with particular care whether the admission of such evidence might involve unduetime, confusion,orprejudice which outweighsits probative value.” (Wheeler, supra, 4 Cal.4th at pp. 296-297, 14 Cal.Rptr.2d 418, 841 P.2d 938, fn. omitted.) The court acted withinits discretion by refusing to permit defendant, in effect, to prosecute Yvonne for welfare fraud, particularly in the absence of any evidence directly connecting the alleged fraud with her testimony. (Id. at p. 372.) Here, the failure of Drebert’s counsel to provide an offer of proof clearly demonstrated her effort was an unsupported attempt to assassinate Santos’s credibility through unfounded innuendo. Because neither Drebert’s counsel nor appellant’s counsel madean offer ofproofsuggesting (muchless substantiating) that Santos supplied drugs to anyoneother than appellant or Drebert, both defense counsel lacked the good faith necessary to askwhether Santos provided drugs to anyone other than appellant or had received stolen 108 property in exchange for drugs. (See AOB 117.) And even if Drebert’s counsel possessed sucha goodfaith belief, it is unclear how such testimony would benefit appellant. Afterall, ifSantos was a “fence” whosupplied drugs (and she admittedly supplied drugs to appellant) and possessed property from the Weir and J.S. crimes, those assertions could solidify rather than diminish Santos’s credibility regarding appellant’s confession. Thetrial court did not abuse its discretion in declining to permit Drebert’s counsel to insinuate that Santos was a drug dealer absentan offer of facts substantiating that assertion. Moreover,the trial court did not abuseits discretion in excluding any reference to Santos’s receipt of public assistance payments, pursuant to Evidence Code section 352.” Drebert’s counsel soughtto link allegations that Santos wasa drugdealer and/orfence ofstolen property to a hypothetical concern that Santos “would lose custody of her children or lose her public assistance for her acts in connection with the instant case” and appellant now argues such concerns “were directly relevant to the truthfulness of her testimony at trial.” (AOB 106.) Again, appellant’s argument concerning the relevance of Santos’s receipt ofpublic assistance payments is premised upon the unsubstantiated assertion that Santos dealt drugs to persons other than appellant or Drebert and/or fenced stolen property belongingto third persons and that she refused to admit those circumstances because she could lose custody of her children or lose public assistance benefits. Asnoted above, Drebert’s counsel evidently lacked a goodfaith basis to conduct this line of questioning. To the extent appellant’s assertions are based upon the premise that Santos was an accomplice or participant in the 23. Section 352 provides, “The court in its discretion may exclude evidenceif its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumptionoftimeor (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” 109 charged offenses and soughtto dispel suspicion from herself, they are wholly unfounded. Santos was never arrested for the charged crimes, and she initiated contact with Detective Ferrari in May 1996 well after any threat of implication in the charged offenses would have dissipated. The record establishes her children’s custody wasat risk due to appellant’s threats against Santos, not due to any conductor offense committed by her. Moreover, by admitting at trial that she provided methamphetamineto appellant, Santos admitted a criminalact (see Health & Saf. Code, § 11352) which, following appellant’s logic, placed her child custody and public assistance benefits at risk. Therefore, it is unclear how the inquiry Drebert’s counsel proposed would have produced a significantly different impression of Santos’s testimony. Nor did the exclusion of evidence of Santos supplyingdrugsto third parties ~ if any such evidence indeed was available to be presented — rise to the level of an unconstitutional deprivation of the right to present a defense. To the extent the defense theory was that Santos implicated appellant to deflect suspicion from her own activities as a drug dealer or fence, as discussed above,this theory was not completely excluded. This claim,too, must fail. 3. Prosecutor’s Contacts With The Department Of Children And Family Services Asa final cross-examination contention, appellant claimsthat the court erroneously ruled that the contacts made by the prosecutor with the Department of Children and Family Services on Santos’s behalf were irrelevant. (AOB 106; 5RT 2416-2417). On appeal, appellant claims evidence concerning the contacts was relevant as a “circumstance tendingto show that Santos’s testimony was or may havebeeninfluencedby a desire to attain the aid ofthe prosecution to prevent losing custody of her children by 110 aiding in the conviction of the defendant.” (AOB 106.) Attrial, neither defense counsel sought to introduce evidence concerning these contacts and, indeed, appellant’s counsel expressly stated, “I wasn’t going to go intothat.” (SRT 2416.) As a result, this claim has not been properly preserved for appeal. (See Evid. Code, § 354, subd.(a); see also People v. Anderson, supra, 25 Cal.4th at p. 580.) Defense counsel’s election was entirely understandable andreasonable. First, the prosecutor’s contact occurred in April 1997, almost one year after Santos revealed appellant’s admissions concerning the Witters, Weir, and ‘Martinez incidents to the police and after Gladys Santostestified concerning those admissionsat the preliminary examination in case number KA034540 (see 2CT 486-501). Moreover, the admission ofevidence that the prosecutor had contacted the DepartmentofChildren Services on behalfofSantos would have necessitated the admission of the reason for the contact: that in April 1997 the Department of Children Services threatened to remove Santos’s children because the Department believed Santos’s status as a witness in appellant’s case endangered her children in light of the threats she had received, and thetrial prosecutor personally called the County and Children’s Services on Santos’s behalf because he believed it was inappropriate for the Departmentto threaten to remove Santos’s children solely on the basis ofher being a threatened witness. (SRT 2413-2414.) Although Santostestified about appellant’s threats against her and her children (SRT 2457-2459), testimony about the prosecutor’s contact with the Department and the motivation for that contact would have supplied a disadvantageousindicia of | legitimacy to Santos’s claims. After all, a belief by the Department that appellant posed a risk to Santos sufficient enough to warrant removing her children from her custody would validate her testimonyrather thanundermine it. Similarly, these reasons demonstrate how anyerrorinrestricting this line 111 elenerenPREMeIEH Her eS ce ne ene contetng tat Hare of questioning could not have produced a significantly different impression of Santos’s credibility, Because appellant has not shownthatthe prohibited cross-examination would have produced a significantly different impression of Santos’s credibility, there was no federal constitutional violation. (People v. Frye, supra, 18 Cal.4th at p. 946.) D. Any Error In Restricting Cross-examination Of Gladys Santos Was Harmless . Evenifthe trial court erred in excluding any ofthe evidence challenged on appeal, such error was harmless under any standard. (Evid. Code, § 354; People v. Watson, supra, 46 Cal.2d at p. 836; Chapman v. California (1967) 386 U.S. 18,24.) As noted previously, the excluded evidence had minimal to marginal value for further impeachmentof Santos. It follows logically that any error the trial court may have committed in connection with the cross- examination of Santos was also harmless. For the reasons discussed above, the conduct underlying the . misdemeanorpetty theft convictions, Santos’s potential unsubstantiated drug transactions with persons other than Drebert or appellant or fencing of stolen property for persons other than Drebert and appellant, and the prosecutor’s contacts with the Department ofChildren Servicesfailed to provide credible motive for Santosto falsely implicate appellant in the Witters, Martinez, Weir and J.S./E.G. crimes. Indeed, any motive for Santos to falsely inculpate appellant or to falsify a confession was exceedingly minimal, if not non- existent. Defense counsel alluded to other motivations for Santos to falsely implicate appellant; for instance, he questioned her whether she was having an affair with appellant between October 1995 through January 1 996, whether she told appellant that she was pregnant by him,or that she feared appellant would inform her husbandofthe affair. She denied all of these accusations. 112, (6RT 2700.) Further, as noted above, appellant cross-examined Santos concerning her misdemeanorprobationstatus at the time she provided informationto the police as well as her providing drugs to Drebert and appellant. The jury learned that Santos had received some benefit from her cooperation with the police, specifically that either the police or District Attorney’s Office paid the security deposit for Santos’s new apartment whensherelocated. (6RT 2527- 2528.) And Santos’s testimony on direct and cross-examination yielded evidence unfavorable to her character, demonstrated she was no strangerto the criminal justice system, and afforded the defense the meansto argue that her testimony warranted the jury’s skepticism and distrust. Assumingthe evidenceappellantnow claims waserroneouslyexcluded waspresented to the jury, it is not reasonably probable that appellant would have received a more favorable outcome; indeed, it is certain any exclusion ~ was harmless beyond a reasonable doubt. Asappellant concedes (AOB 120), there was abundant evidenceofthe Martinez robbery and attempted murderwholly apart from Santos’s.testimony. While still hospitalized for his injuries, Martinez identified appellant, codefendant Drebert, Eric Pritchard and Jason Vera as his attackers. (4RT 2206-2210.) Martinez, Jose Canales, Gladys Santos and defense witness Jessica Rodriguez all confirmedthat appellant was almost constantly present with Drebert, Pritchard and Vera. (4RT 2126-2129.) Indeed, Martinez, Santos and Rodrigueztestified that they called appellant “Dad.” (4RT 2165; ORT 3284.) It was essentially undisputedat trial that appellant, who wasthe oldest and physically largest of the group, wasthe ringleader. J.S. positively identified Pritchard and Vera as two ofthe four robbers who invaded her homeandterrorized her and her husband. Shepositively identified Pritchard as the perpetrator of one of the forcible oral copulation 113 counts. Her descriptions of the height and build of four robbers circumstantially implicated appellant as the rapist and leader of the group. Moreover,his identification as the leader was consistent with his role as leader of a group of young men whocalled him, “Dad.” DNAevidencestrongly linked appellant to the sexual offenses against J.S., which necessarily implicated him in the other crimes against J.S. and E.G. (7RT 2910-2921, 2943-2948.) And DNAtesting conclusively excluded Drebert, Pritchard and Vera as donors of the sperm fraction of the vaginal swab taken from J.S. (7RT 2752-2754, 2756-2760.) | A porcelain. angel belonging to Ruth Weir found in the apartment Martinez shared with Amy Benson, when combined with Martinez’s testimony that Benson hung aroundthe complex with appellant, Pritchard, Drebert and Vera on a near daily basis, further linked appellant to the Weir robbery. (4RT 2165, 2172-2173.) A common modusoperandi—multiple men with guns drawn accosting the victims after they drove into their detached garages on a December evening—linkedthe J.S. and Weir crimes. Similarities in questioning and threats uttered by the robbers to the victims further suggested that the same individuals perpetrated the J.S./E.G. and Weir robberies. The robbers, including Pritchard, repeatedly put gunsto the heads of J.S. and E.G. and asked, “Where is the money? Is it worth your life?” (7RT 2926-2927.) When Ruth Weir complained that the robbers were stealing her Christmaspresents, one robberleaned over, put a gun to herhead and said, “Would you rather have your Christmas presents or your life?” (8RT 3083.) Additionally, other evidence corroborated Santos’s account of appellant’s confession concerning the Weirrobbery in respects that could only have been knownbyoneofthe robbers. Santostestified that appellant called her one night and asked her to pick him up at a location near the Lido 114 Apartments. (5RT 2450.) Appellant told Santos, “We just robbed somebody.” Hetold her they had taken Christmaspresents, a white car, and groceries during the robbery and that a police officer lived in the house. He directed Santos to a residence in West Covinathat was near a school and was approximately four blocks from the Lido Apartments. Appellant directed Santos to a location wherehesaid he had hidden somecoinsand other items he had taken from the residence. Appellant got out of the car and picked up a branch, then returned to the car and said nothing was there. (SRT 2449- 2453.) Ruth Weir testified that the robbers stole a Ziplock sandwich bag containing commemorative coins, and one ofher neighbors retumed the coins to her approximately a week after the robbery. (8RT 3088-3090.) Other corroborating evidenceincluded appellant’s commandoverDrebert, Pritchard and Vera during their daily interactions, Ruth Weir’s description of the robbers and the robbery, and the recovery of Weir’s gold chains from Santos’s apartment in a room used by appellant’s daughter. Finally, Weir’s neighbor identified atwo-tone car similar to that drivenby appellant’s cousin, Jessica Rodriguez, as being outside the Weir home both before and immediately after the robbery. (8RT 3103-3104.) Finally, the fact J.S.’s answering machine and Weir’s gold chains were recovered from Santos°s apartment—which wasthe location where appellant wasarrested, where he hadlived for the past three days, and the place where his daughter had resided for more than one week andwas babysat daily for weeks-servedas additional strong circumstantial evidence ofappellant’s guilt in the J.S./E.G. and Weir incidents even apart from Santos’s statements that appellant brought the items to her apartment. Considering the evidence amassed against appellant for all of the offenses, any error in restricting cross-examination of Gladys Santos was harmless. 115 VI. THE ELICITATION OF APPELLANT’S CONFESSION TO THE WITTERS MURDERDIDNOT VIOLATE THE RULE OF BRUTONy. UNITED STATES(1968) 391 U.S. 123; IN ANY EVENT, ANY ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT At appellant’s trial, prosecution witness Gladys Santostestified that she initiated a conversation with appellant in which he ultimately confessed to killing a man with a belt. (SRT 2436-2443.) Although codefendant Drebert’s detailed statement inculpating appellant in the murder of Koen Witters (see 5RT 2462-2481 [red jury only]) was not introduced before appellant’s jury, appellant claims Santos’s testimony-that she had a conversation with a civilian “who indicated that they had been present at a murder,” several days later she initiated a conversation with appellantto “confront this person about what I wastold,” and that appellant replied, “That pussy Miketold you, huh?” to Santos’s question, “Is it true? Did you really kill someone with a belt?”—permitted the juryto infer that codefendant Drebert had told Santos that he was present when appellant killed Witters with a belt. Appellant claims this inferential admission of Drebert’s statement violated his Sixth Amendmentright to confront the witnessesagainst him, his Fifth Amendment right to due process, and his Eighth Amendmentrightto a reliable capital conviction and requires reversal ofhis murder conviction and death sentence. (AOB 121-135.) | Santos ’s reference to a conversation with a third partymerely conveyed that someone had beenpresentat a murder. Thefirst inculpatory reference to the third-party conversation—which took the form of Santos’s question to appellant-was independently admissible as an adoptive admission. Appellant’s own statements identifying codefendant Drebert as a possible source of the information were admissible and did not render the prior 116 testimony improper. Santos’s recitation of appellant’s ultimate confession identified two people—-codefendant Drebert ‘and Eric Pritchard—as being present during the murder, and the jury heard that Santos denied Drebert was the informer during her conversation with appellant. To the extent Santos’s testimony may have, when considered in combination with other evidence, permitted thejury to infer that either Drebert or Pritchard (“Little Giant’) told her that appellant killed someone with a belt, this chain of inferences did not violate the rule ofAranda/Bruton andtheir progeny. A. Trial Court’s Ruling Before prosecution witness Gladys Santos wascalled to testify, the prosecutor informed the court that Santos wouldtestify about statements made by appellant and Drebert, and someoftheir statements tended to inculpate the other defendant. (SRT 2412-2413.) The prosecutor outlined details of the statements and circumstances to get pre-approval of his proposed mode of questioning. (SRT 2418-2419.) The prosecutor initially proposedto elicit that Santos confronted appellant about killing Witters after getting information from Drebert. Thetrial court, however, observed that such questioning would permit the jury to put “two and two together” and defeat the purposeofseparatejuries. (SRT 241 9-2420.) Instead,thetrial court ruled that the prosecutor could not directly mention Drebert in his questioning. (SRT 2420.) | In response, appellant’s counsel proposedthat they resolve the Bruton problem byasking,“Did you receive information about the homicide?” (SRT 2420) and then follow that answer with the question, “And did you receive that information from anotherparty?” Thetrial court notedthat the prosecutor could modify the proposed followup question to ask if Santos received information “from another party whoindicated he waspresent.” (SRT 2421.) 117 Thecourt also ruled that the prosecutor couldelicit that the source ofSantos’s information was a civilian with personal knowledge. (SRT 2422.) - B. Santos’s Testimony Concerning Appellant’s Confession Before appellant’s jury, the prosecutorinitiated an inquiry concerning appellant’s admissions to Gladys Santosas follows: Q “Miss Santos, in December of 1995, did you havea conversation with someone who hadindicated that they had been present at a murder?” A Yes, I did. Q This person that you had the conversation with, that wasn’t a police officer; is that right? A No, no,it wasn’t. Q It was anothercivilian, an ordinary person;is that correct? A Yes. Q Whendid this conversation take place i n relation to Christmas, 1995? A Very close. Q Before or after? A Thepresents hadn’t been openedyet. (SRT 2433-2434.) After additional clarification concerningthe timing ofthe conversation, the prosecutor continued his questioning as follows: Q After you had this conversation with this person whosaid he had beenat the scene ofa murder,or at a murder whenit occurred, did you have a conversation with the defendant, [appellant]? A Yes, I did. Q Howlong after you had the initial cconversation with this other person wasit that you had the conversation with [appellant]? I waited three days. I’m sorry? I had waited three days. You waited three days for what? To ask To ask who? To confront this person ofwhat I wastold. You waited three days to talk to [appellant] aboutit? Yes. ,P O P P A F A S A S 118 Q This conversation that you had three days later, did you start the conversation, or did the defendant [appellant] start the conversation? A I did. (SRT 2435.) Santos explainedthat this conversation and the prior conversation had occurred in her apartment. (SRT 2435-2436.) Santos initiated the conversation by asking appellant, “Is it true? Did you really kill somebody with a belt?” (SRT 2436, 2438.) In response, appellant laughed. Santos asked him again,“Is it true?” Appellant replied, “That pussy Miketold you, huh?” (SRT 2438.) Santos responded, “No.” Appellant stated that Mike was ~ weak. Santos again deniedthat “Mike”had told her. Santos asked, “Did you really do that?” Appellant replied, “Yes.” Santos then asked, “Whydid you do it?” Appellant changed the subject. (SRT 2439.) Later, after Santos again resumed the subject, appellant admitted he useda beltto kill someone and demonstrated for Santos how he hadusedthe belt to kill the victim. (SRT 2439-2441.) Appellant told Ms. Santosthat the murder occurredin an apartment “they had been watching”in order to commit arobbery. (SRT 2441.) Appellant said the victim had been shaving, and that appellant had watched the victim shave. Appellant said he killed the victim because he had seen appellant without a mask. He strangled the victim because using a gun would be too loud. Appellant told Ms. Santos that he waswith Drebert and “Little Giant’ when the murder occurred. (SRT 2442.) Appellant said that after he attempted to strangle the victim,he left the room. Whenhereturned, the victim was not dead. Appellant called Mike into the room to hold one end ofthe belt. Appellant initially said he “shanked” the victim. Later appellant said, “Well, the motherfucker wouldn’t die, so I cut him.” (SRT 2443.) 119 C. Applicable Law The Aranda/Bruton doctrine prohibits introduction of the facially incriminating extrajudicial admission or confession of a non-testifying codefendant against the defendant. (Bruton v. United States, supra, 391 U.S. at pp. 126, 135-136; People v. Aranda (1965) 63 Cal.2d 518, 530-531.) In Bruton vy. United States, supra, 391 U.S. 123, the prosecution elicited, as evidence in their joint trial, Evans’s confession implicating himself and codefendant Brutonas participants in the crime. (/d. at p. 124.) Although the jury was instructed to consider Evans’s confession only against Evans, the high court concludedthat such an instruction wasinsufficient to cure the prejudice to the jointly tried defendant because the jury could not reasonably be expected to obeythe instruction. (Bruton, supra, 391 U.S.at pp. 135-136.) In Richardson v. Marsh (1987) 481 U.S. 200, the Supreme Court examined a redacted confession admitted in the joint trial oftwo defendants. The redaction examined in Richardson omittedall indication that anyone other than the declarant and a third person hadparticipated in the crime. (/d. at p. 203.) The namedthird person wasalso charged with the crime but was a fugitive and therefore not jointly tried. (Ud. at p. 202.) The redacted confession related a conversation that occurred in the car on the wayto the robbery; the conversation acknowledgedthatthe victims wouldberobbed and killed. Defendant Marshtestifiedat trial, and her testimony placed herself in the car when the conversation related in the codefendant’s confession occurred. (/d. at p. 204.) The high court distinguished the confession in 24. The enactment of Proposition 8 in 1982 abrogated Aranda to the extent it imposed greater restrictions on the admissibility of a codefendant’s confession thanrequired underthe federal Constitution. (People v. Fletcher (1996) 13 Cal.4th465; see People v. Mitcham (1990) 1 Cal.4th 1027, 1045, fn. 6.) 120 Bruton because,“in this case the confession was not incriminating onits face, and becameso only when linked with evidence introducedlater at trial (the defendant's own testimony).” (/d. at p. 208.) More recently, the high court has clarified that “Richardson placed outside the scope of Bruton’s rule those statements that incriminate inferentially.’” (See Gray v. Maryland (1998) 523 U.S. 185, 195.) Confessions that incriminate a codefendant only when linked with evidence introducedlaterattrial do not violate the codefendant’s rightto confrontation. (Gray v. Maryland, supra, 523 U.S.at pp. 195-196.) D. No Bruton Error Occurred Essentially, appellant complainsthat the testimonyelicited from Gladys Santos permitted his jury to infer that “Drebert told [Santos] that he was present when [appellant] killed Witters’s with a belt.” (AOB 127.) Appellant highlights the admission of the following testimony given by Santos to support his argument: (1) Santos had a conversation with a civilian “who indicated that they had been present at a murder’; (2) several days later Santos initiated a conversation with appellant to “confront this person about whatI was told”; (3) Santos opened her conversation with appellant by asking, “Is it true? Did youreally kill someone with a belt?’’; and (4) appellant replied, “That pussy Mike told you, huh?” (AOB 124-127, 130-133.) Appellant arguesthat, because appellant’sjury was aware that Drebert was charged with Witters’s murder, permitting Santosto testify that someone who was present at the murder inculpated appellant waserror: “the jury could only conclude that Drebert was the person whotold Santos that he was there when someone had killed a man with a belt. Upon hearing that, since there were but two defendants, thejury could only concludethat Drebert said the actual killerwas [appellant].” (AOB 131.) This inference was confirmed, appellant argues, when Santos was permittedto testify that when she confronted appellant with 121 the information she had learned, he responded with the question as to whether “Mike”had told her that information. (AOB 131.) Notso. First, appellant complainsthatthe trial court erred by ruling that “the prosecution couldelicit from Santos that she learned ofthe homicide from ‘a civilian with personal knowledge.’” (AOB 130-131.)Santosaffirmatively answered the question, “did you have a conversation with someone whohad indicated that they had been present at a murder?” and specified that the person with whom shespoke wasnota police officer. (SRT 2433-2434.) As elicited, this statementdid not directly implicate either Drebert or appellant in the murder, did not identify the source of the information to be codefendant Drebert, and did not maintain that the person communicating the information wasa participant in the murder. This testimony did not violate Bruton . | Nor did Santos’s subsequent testimony that she later initiated a conversation with appellant to “confront this person about whatI wastold” (SRT 2435) violate Bruton. Again, even viewed in combination with the preceding testimony, Santos’s testimony did notidentifyDrebert as the source or appellant as the killer. This testimony did not violate Bruton . Indeed, the first indication that appellant had been identified as the perpetrator of a murder arose with Santos’s question to him,“Ts it true? Did you really kill somebodywith a belt?” (SRT 2436.) But this question, appellant’s first response (laughter), and his subsequent reply, “That pussy Mike told you, huh?” (SRT 2438) were independently admissible as an adoptive admission. (Evid. Code, § 1221.) Santos’s question was a necessary part of appellant’s admission. Rather than immediately deny the inquiry, 25. Although appellant further complains this testimony was “rank hearsay” (AOB 130), no evidentiary objection was entered to this specific question on this groundat trial. (RT 2433-2434.) Asa result, any hearsay objection was waived. (See Evid. Code, § 354, subd. (a); see also People v. Anderson, supra, 25 Cal.4th at p. 580.) 122 appellant himselfposed a derogatory inquiry concerning a potential source of Ms. Santos’s information. In other words,this testimonydid not introduce a ‘codefendant’s statement-it was a Statement by appellant himself. And to the extent Santos’s question incorporated or distilled statements made by codefendant Drebert, he was not expressly or directly identified as the source of the information. This testimony did not violate Bruton . Finally, the admission ofappellant’s own statementidentifying Drebert as the possible provider of the information did not violate the confrontation clause or other constitutional protection. (Evid. Code, § 1220; People v. Carpenter (1999) 21 Cal.4th 1016, 1049 [“the hearsay rule does not compel exclusion of any statementoffered againsta party declarant, whether or not it can be described as an admission.”’].) Contrary to appellant’s claim, thejuryneed not haveinevitably inferred that Drebert wasthe source ofthe information provided to Santos. Although Santos testified that appellant initially asked her whether “Mike” was the person who promptedher to inquire about the killing, she also testified that, in response, she repeatedly denied “Mike”was the source. (SRT 2439.) And ultimately, Santos testified that appellant told her that appellant, Drebert and “Little Giant” were present when the murder occurred. (SRT 2442.) 26. Appellant asserts that Santos’s preliminary hearing testimony did not convey that appellant told her Eric Pritchard (“Little Giant”) was also present during the Witters murder. (AOB 127, fn. 52.) But no question was asked to elicit or clarify this point at the preliminary hearing andlittle motivation existed to do so since no other defendant was charged with the murder and Drebert’s own admissions inculpated him in the murder. (2CT 488-495.) In any event, this uncontradicted testimony at appellant’s trial served to suggest that Pritchard -- not Drebert -- was the source who prompted Santos to inquire of appellant. Additionally, during his opening argument, the prosecutor referenced the evidence presentedto appellant’sjury: “He told Gladys Santos that he was with Michael Drebert and LittleGiant, and you know from Gladys Santos’ other testimonythatLittle Giant is Eric Pritchard,....” (LORT 3591.) 123 Santos’s challenged testimony did not conveya facially incriminating admission by codefendant Drebert. At most, the brief and paraphrased ~ reference to her conversation with a third party incriminated appellant only when linked with evidence of Santos’s confrontation with appellant and appellant’s own admissions. Any inferential linkage to either Drebert or Pritchard did not violate the Constitution. E. Any Error In The Elicitation Of Santos’s Conversation With Appellant Was Harmless Whether Aranda-Bruton error requires reversal of a conviction is evaluated under the “harmless beyond a reasonable doubt” standard of Chapman v. California, supra, 386 U.S. 18. (Lilly v. Virginia (1999) 527 U.S. 116, 139-140.) Where a defendant’s admission or confession is also admitted, it maybe consideredin assessing whether any Confrontation Clause violation was harmless. (Cruz v. New York (1987) 481 U.S. 186, referencing Harrington v. California (1969) 395 U.S. 250 [error harmless where other evidence overwhelming and improperly admitted evidence cumulative].) In this case, the elements ofthe Wittersmurder wereestablished bythe crime scene investigation and autopsy. To the extent Santos’s recitation ofher conversation with appellant incorporated aspects of her conversation with Drebert, it was vague and lacked specifics. In essence, Santos’s recitation of Drebert’s statements at most communicated that a person present when the murderoccurredtold her that appellant killed someone with a belt. Thus, the point resolved by challenged testimony was appellant’s identity as the perpetrator. Onthis point, the statement was limited and cumulative.” 27. The majority of the information the jury learned aboutthe third- party statement waselicited by appellant’s counsel, not the prosecution. (6RT 2547-2548.) Appellant’s counselelicited that, several days before Christmas 1995, someone knockedon the door to Santos’s apartment and she answered. Twopeople wereoutside, and she let them in. The person whotold her about 124 Appellant made a detailed andself-corroborating confession to the murder of Koen Witters. Indeed, his confession provided details that could only have been knownbythe killer or someone present when the murder occurred, Particularly, appellant’s confession revealed that he had observed the victim shaving prior to entering the apartment to rob him (SRT 2442); investigating officers found shaving cream andstubble in Witters’s bathroom sink. (SRT 2372). Appellant admitted strangling and cutting the victim (SRT 2439-2441, 2443); Witters was bound, gagged, strangled, and his wrists cut, and the small quantity ofblood suggested Witters was dead or dying when the cuts were made (SRT 2368, 2370, 2382, 2389-2390; TRT 2812-2820, 2831- | 2832). Witters’s Apple MacIntosh computer wasstolen during the robbery. (SRT 2344-2345, 2351-2354, 2357-2358, 2373-2376, 2381.) After the murder, appellant asked Santos if she knew anyone who wanted a desktop Apple MacIntosh computer. (SRT 2447-2448, 2461.) Appellant commented ‘that the victim “liked to travel to Europe” (SRT 2447) and liked Asian women (SRT 2445, 2447); Witters was a Belgian citizen, his girlfriend was Taiwanese, and a photograph ofan Asian womanwasfoundon his ransacked bed. (SRT 2334-2337, 2346-2348, 2371-2372.)2/ the murder appeared to have been drinking. She described him as “marinated.” (6RT 2548.) She had him stay at the apartment for two hours to sober up; he was nottoo intoxicated that she feared he would bearrested. (6RT 2549.) The person said “they” had been scoping a residence and appellant had seen the person shaving. (6RT 2549-2550.) He tied the victim at appellant’s direction. The victim liked to travel, liked Europe, liked Asian women, and waspreparing to travel. (6RT 2550.) Heassisted in strangling the victim. (6RT 2550-2551.) 28. In a footnote, appellant notes that his jury was not presented evidence that Drebert’s car was used in the Witters crime; however, during argument, the prosecutor argued that the Witters burglary continued until the stolen property was loaded into Drebert’s car and driven away. (AOB 134,fn. 125 Contrary to appellant’s claim, the third-party’s inculpatory statement did not “interlock” with appellant’s confession in such a way as to overshadowthelatter’s powerfully incriminatory value. In this case, assuming the challenged third-party statement permitted an inference violative of the Bruton rule, the error was harmless beyonda reasonable doubt. 55; see 1ORT 3584.) This reference was not prompted by or related to Santos’s testimony before appellant’sjury. In any event,this single erroneous reference did not heighten any prejudice created by the inquiry eliciting appellant’s admission to the Witters murder or amount to prejudicial misconduct. The jury wasinstructed that the statements of counsel were not evidence (CALJIC No. 1.02; SCT 1253), and if appellant’s counsel had believed thatthis fleeting reference warranted morespecific clarification, he would have objected and any potential prejudice would have been cured. 126 Vil. THE TRIAL COURT PROPERLY JOINED ALL CHARGED COUNTS Appellant contendsthat thetrial court’s erroneousrefusal to sever the Martinez, Weir and J.S./E.G. charges from each other, and the subsequent — erroneous joinder of the charges arising from the murder ofKoen Witters to those charges, violated his constitutional rights under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution and the parallel provisions of the California Constitution and require reversal of his convictions and deathjudgment. (AOB 136-183.) Here, the charges met the statutory requisites for joinder, and appellant failed to demonstrate a clear potential for prejudice existed at the time the trial court denied severanceof - similar crimes with cross-admissible evidence or later joined the Witters © charges to the other counts. Thetrial court did not abuse its discretion in denying the initial motion to sever the Martinez, Weir and J.S./E.G. charges from each other or later joining the Witters charges to those counts, and appellant’s claims of constitutional error likewise must fail. A. The Applicable Authority And Standard Of Review 299“*The law prefers consolidation of charges. (2005) 37 Cal.4th 547, 573; People v. Ochoa, supra, 26 Cal.4th at p. 423.) Asthis Court has observed, (People v. Manriquez The benefits to the state ofjoinder [are] significant. Foremost among these benefits is the conservation of judicial resources and public funds. A unitary trial requires a single courtroom, judge, and court attaches. Only one group ofjurors need serve, and the expenditure of time for jury voir dire is greatly reduced over that required were the cases separately tried. In addition, the public is served by the reduced delay on disposition of criminal chargesboth in trial and through the 127 appellate process. (People v. Bean (1988) 46 Cal.3d 919, 939.) Section 954, which governsjoinder ofcountsin single trial, provides ~ in relevantpart: An accusatory pleading may charge two or more different offenses connected together in their commission,or different statements of the same offense or two or moredifferent offenses of the sameclass of © crimes or offenses, under separate counts, and if two or more accusatory pleadingsare filed in such cases in the same court, the court may order them to be consolidated. Additionally, section 954.1%’ provides as follows: In cases in which two or more different offenses ofthe sameclass of crimes or offenses have been charged together in the same accusatory pleading or where two or more accusatory pleadings charging offenses of the sameclass of crimes or offenses have been consolidated, evidence concerning oneoffenseor offenses need not be admissibleas to the other offense or offenses before thejointly charged offenses may betried together before the sametrier offact. “Severance may nevertheless be constitutionally required ifjoinder of the offenses would be so prejudicial that it would deny a defendanta fair trial.” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1243.) “The burden is on the party seeking severanceto clearly establish that there is a substantial dangerofprejudice requiring that the charges be separately tried.” (People v. 29. “The voters adopted this statute in Proposition 115, which took effect on June 6, 1990. Section 954.1 applies to trials held after its enactment[.] Section 954.1 codified existing case law, and did not materially changethe rules ofseverance.” (People v. Stitely, supra, 35 Cal.4th at p. 533, fn. 9, citations omitted.) 128 Carter, supra, 36 Cal.4th at pp. 1153-1154, internal quotations andcitations omitted.) A trial court’s ruling on a severance motion is reviewed for abuse of discretion on the basis ofthe facts knownto the court at the time ofthe ruling. (People v. Box, supra, 23 Cal.4th at p. 1195; People v. Alvarez, supra, 14 Cal.4th at p. 189.) In other words, the denial of a motion to sever is reviewed to determine “whether the denial fell outside the bounds ofreason.” (People v. Manriquez, supra, 37 Cal.4th at p. 573 [internal quotations omitted, citation omitted]; People v. Maury, supra, 30 Cal.4th at p. 391.) The trial court’s discretion is assessed, “in light of the showings then made and the facts then known. [Citations.]” In Williams v. Superior Court, supra, 36 Cal.3d at pages 452-454, 204 Cal.Rptr. 700, 683 P.2d 699, we described in detail the factors through which the trial court’s exercise of discretion is channeled: whether evidenceofthe crimesto be tried jointly would or would not be cross-admissible; whether some of the charges are unusually likely to inflame the jury against the defendant; whether the prosecution has joined a weak case with a strong case (or with another weak case), so that a “spillover”effect from the aggregate evidence on the combined charges mightalter the outcomeas to one; and whether any of the joined charges carries the death penalty. The burden of demonstrating an abuse of discretion rests with the party seeking ceseverance--here defendant--who must “‘clearly establish’” a “‘substantial danger of prejudice requiring that the charges be separately tried.’” (People v. Musselwhite, supra,\7 Cal.4th at p. 1243, citations omitted; see also People v. Manriquez, supra, 37 Cal.Ath at p. 573; People v. Valdez (2004) 32 Cal.4th 73, 120.) 129 © If charges are properly joined under section 954, a “‘defendant must makea clear showingofprejudiceto establish that the trial court abusedits discretion in denying defendant’s severance motion.[Citations.] Valdez, supra, 32 Cal.4th at p. 119; see also People v. Sapp (2003) 31 Cal.4th (Peoplev. 210, 258.) Where two cases are joined but the evidence of the offensesis cross-admissible, there is no prejudice. (People v. Gray (2005) 37 Cal.4th 168, 222.) Evenifa trial court abusesits discretion in failing to grant severance, reversal is required only upona showingthat, to a reasonable probability, the defendant would have received a more favorable result in a separatetrial. (People v. Coffman (2004) 34 Cal.4th 1, 41.) Finally,“[e]ven ifa trial court’s severance or joinder ruling is correct at the time it was made, a reviewing court must reverse the judgmentifthe ‘defendant showsthatjoinder actually 999resulted in “gross unfairness” amounting to a denial ofdue process.’” (People v. Mendoza, supra, 24 Cal.4th at p. 162; accord People v. Valdez, supra, 32 Cal.4th at pp. 120-121.) B. The Court Properly Denied Appellant’s Motion To Sever The J.S., Weir And Martinez Crimes 1. Procedural History Following a preliminary hearing, on February 28, 1996, appellant and Drebert were held to answerfor charges arising from the Martinez and Weir _ offenses in Los Angeles County Superior Court case number KA030671. (1CT 3-4, 10-86.) On March 13, 1996, an information was filed in Los Angeles County Superior Court case number KA030671 charging appellant and codefendant Drebert with four felony counts: the attempted murder of Michael Martinez (§§ 664/187, subd. (a); count 1), residential robbery. committed in concert (§§ 211, 213, subd. (a)(1)(A); counts 2 and3), and the carjacking of Ruth Weir (§ 215, subd. (a); count 4), with special allegations 130 that appellant and Drebert personally used a deadly and dangerous weapon(§ 12022, subd. (b)(1)) in the commission ofthe attempted murder, personally inflicted great bodily injury (§ 12022.7, subd. (a)) in committing the attempted murder, and personally used a firearm (§ 12022.5, subd. (a)) in the commission of the carjacking. (IV Supp ICT 15-19.) | A complaint charging codefendant Eric Anthony Pritchard with the same four charges alleged as to appellant and Drebert was filed on March 19, - 1996. (1CT 99.) A complaint charging codefendant Anthony Vera with the same four charges alleged as to appellant and Drebert wasfiled on May2, 1996. (ICT 102.) On May 14, 1996, following a preliminary hearing, the complaint was amendedbyinterlineation to add violation of Vehicle Code section 10851, subdivision (a) (count 5) as to both Pritchard and Vera. Pritchard was held to answer on Counts 1, 2 and 5, the Weir robbery and - carjacking charges were dismissed as to both Pritchard and Vera, and Vera washeld to answeron the attempted murder and robbery of Martinez only. (IV Supp 1CT 52-100.) On May 23, 1996, a 10-count information was filed in case number KA031580 charging appellant, Eric Pritchard, and Jason Vera with the offenses committed against J.S. and E.G. on December15, 1995, as follows: two counts of home invasion robbery (§ 211, 214, subd. (a)(1)(A); counts 1 and 2), three counts of forcible oral copulation in concert (§ 288a, subd. (d); counts 3, 5 and 6), two counts offorcible rape in concert (§ 264.1; count 4 and 10), one count of false imprisonment (§ 236; count 7), and two counts of carjacking (§ 215, subd. (a); counts 8 and 9). It was further alleged as to counts 3, 4, 5 and 6 that appellant and his codefendants used a firearm within the meaning of section 667.61, subdivisions (a), (b) and (e) and that as to counts |, 2, 7, 8 and 9 appellant and his codefendants each personally used a 131 firearm within the meaning of section 12022.5, subdivision (a). (IV Supp 1CT 101-109.) On July 15, 1996, on the People’s motion (ICT 181-193), case numbers KA030671 (Martinez and Weir offenses) and KA031580 (J.S./E.G. offenses) were consolidated into case number KA030671. (LRT 18-19; 1CT 211-212.) At the hearing on the motion, all defense counsel submitted the consolidation question without papers or argument, subjectto the filing of a motion for severance at a later date. (IRT 18-19.) On July 17, 1996, an amended 14-count information was filed in case number KA030671. (IV Supp 1CT 139-151.) On September12, 1996, in case number KA033346,Vera washeld to answeron the J.S./E.G. charges and waived a renewed preliminary hearing as to the charges alleged concerning the Martinez and Weir incidents. (IV Supp ICT 152-256.) By written motion filed October 16, 1996, the People moved to consolidate case number KA030671 with case number KA033346 (charging Jason Vera). (ICT 219-229, 231-234.) The People filed a supplemental memorandum to the motion on November4, 1996, noting that the charges were not only the same class of crimes but were “connected together in their commission”since they involved the sameparticipants, same elements, and same modusoperandi. (1CT 231-234.) On November5, 1996, codefendant Vera filed a motion for separate trials. (IV Supp 1CT 257-267; IRT 56.) On November12, 1996,the People filed an opposition to the motion (filed by codefendant Vera and joined by appellant and codefendants Pritchard and Drebert) to sever trials of the various incidents. (1CT 236-249.) In the detailed opposition, the People outlined the evidence that would be presented concerning the three charged incidents — including that J.S. had identified appellant at his preliminary hearing, E.G. had identified appellantat a live lineup, appellant had admitted 132 participation in the Weir crimesto “a civilian witness,” property taken during the Weir robbery (and discovered in the apartment Michael Martinez shared with AmyBenson) was given to AmyBensonbyappellant, and property taken during the J.S./E.G., Weir, and Martinez incidents was foundin the apartment whereappellant wasarrested and identified by the tenant “‘as having beenleft at the apartment by defendant Capistrano.” (1CT 237-242.) | On November18, 1996, appellant filed a motion to sever the charges into three trials (counts 1-10, counts 11-12, and counts 13-14). In the motion, appellant characterized the crimesas constituting “different classes ofcrimes” and that the evidence ofappellant’s guilt was strong as to the Martinez offense but weak asto the Weir and J.S./E.G.offenses. (ICT 264-274.) 2. Hearing On The Motion To Sever The Martinez, Weir And J.S./E.G. Incidents The motion for severance was heard the following day on November 19, 1996. (1RT 56-73.) The court stated that it found appellant’s motion to be an “interesting request” (IRT 58) and was “entertaining the request” (IRT 59). The prosecutor argued that the three incidents were properly joined because the crimes were all of the same class, all began as residential robberies, the participants in each incident overlapped, the victims were similarly bound and gaggedinall three incidents, and the J.S./E.G. and Weir _ crimes had similar common characteristics in that each wasa “follow-home robbery” where the victims were accosted in their garages and forced into their homes at gunpoint, and were threatened to reveal the location of valuables or be killed. (JRT 60-62.) The prosecutor argued that the 30. On November18, 1996, appellant also filed a motion to severhis trial from that of codefendant Drebert pursuantto section 1098 and Peoplev. Aranda, supra, 63 Cal.2d at p. 518, on the ground that Drebert’s statements to police inculpated him in the Weir and Witters offenses. (1CT 250-263; IRT 56-58.) 133 possibility of antagonistic defenses was insufficient to grant severance, none ofthe counts were more “emotional” than the others since all were “vicious” crimes and no weak counts/incidents were joined to strong counts/incidents. (IRT 62-64.) Finally, the prosecutor argued that the incidentswere cross- admissible given the property found, commonparticipants, and common elements amongthe incidents. (1RT 64-66.) In contrast, appellant’s counsel argued “there were grave differences in the strength of the People’s case against [appellant] in all three of the incidents.” She arguedthat the strongest count concerned the Martinez crimes but the motivation was different and the robbery was an afterthought; the evidence concerning the Weir crimes consisted of Drebert’s statement to police (whichthe prosecutionsaid it would not use) and the property found in the Martinez and Santos residences; and the evidence pertaining to the crimes against J.S. was unclear given that the DNA evidence was not yet available and the identifications were not “strong.” (1RT 70-72.) Appellant’s counsel also argued that the outstanding DNAtesting results would result in a delay in the other cases, which could goto trial without the DNA evidence. (IRT 72.) | Thetrial court denied the motion to sever the counts: “As to each of the defendants, the court will deny the motion to sever and deny the motion for separate trials. As to separate counts, I will not precludethetrial court from ordering separatejuries as deemed appropriate bythat trial court.” (IRT 73.) 3. The Trial Court Did Not Abuse Its Discretion In Declining Severance OfThe Weir, J.S./E.G. And Martinez Incidents Thetrial court did not abuse its discretion in declining to sever the Martinez, J.S./E.G. and Weir incidents from one another. Appellant has not made a clear showingthatthe trial court abusedits discretion. Indeed,all four 134 factors traditionally considered by the reviewing courts weigh against appellant’s assertion of prejudice. Although appellant initially complains that “the trial court undertook no analysis of cross-admissibility and no analysis of prejudiceto [appellant] _ that would result from trial on the joined offenses” (AOB 147), thetrial | court’s ruling included an implicit finding that appellant would not be prejudiced by the joinder. (Evid. Code, § 664.) Indeed, appellant’s entire argument addressedthe potential prejudice to appellant. The trial court was not required to verbalize its evaluation of prejudice or utter a statement of reasons for the denial. Appellant’s mere disagreement with the trial court’s ruling does not demonstrate an abuseofdiscretion. ___ First, appellant arguesthat the evidence beforethe trial court did not support a finding the offenses were cross-admissible. (AOB 148-156.) Specifically, he observes that some ofthe facts highlighted by the prosecutor “were unsupported by the record before the trial court at that point in time.” (AOB 150.) A trial court’s ruling on a severance motion is reviewed for abuse of discretion on the basis of the facts knownto the court at the time of the ruling. (People v. Box, supra, 23 Cal.4th at p. 1195; People v. Alvarez, supra, 14 Cal.4th at p. 189.) The trial court was entitled to rely upon the representation ofthe parties, which becamepart ofthe record before the court in considering the motion. This wasparticularly true where the prosecution’s representations were undisputed by appellant’s counsel. Asthis Court explained in People v. Johnson (1988) 47 Cal.3d 576,the eeceeissue of cross-admissibility ““‘is not the cross-admissibility of the charged 32393offenses but rather the admissibility ofrelevant evidence”” that tends to prove a disputed fact. (/d. at p. 598; see Evid.Code, § 201.) Here, the transactions werecross-admissible as presenting a commondesignorplan. (See generally People v. Kipp (1998) 18 Cal.4th 349, 369-371.) 135 The prosecution’s offerofproof(1 CT 237-242) established a common plan or schemeas to the Weir and J.S./E.G. offenses. Indeed, the J.S./E.G. and Weir crimes had identical modus operandi. In each case, multiple masked and gloved men with guns drawnaccosted the victims after they drove into their detached garages on a Decemberevening and forced them into their homesto ransackthe residencesandsteal property. The offenses sharedother commonelements,including that the robbers coveredtheir faces, wore gloves, questioned the victims aboutthelocation ofvaluables and threatened to shoot and kill them if they did not follow instructionsor fully reveal the location of valuables. A similar modus operandi wasillustrated by the circumstances of the Martinez robbery, in that appellant and his cohorts entered Martinez’s apartment soon after he returned home from work and while he was vulnerable (in the shower), and threatened to kill him if he failed to disclose the location of valuables. The J.S. and Martinez incidents shared a common element ofbinding and gagging. Moreover, the Martinez, Weir, and J.S./E.G. incidents all involved multiple perpetrators, and appellant was the common perpetrator in all of the incidents. Appellant brought property stolen from Ruth Weir (gold chains), J.S. (answering machine), and Martinez (identification, wallet) to the apartment where he wasarrested. Additionally, property stolen during the Weir robbery (porcelain angel) was discovered in the apartment of Michael Martinez. Andthetrial court was informed that AmyBenson hadrevealedthat appellant gave that item to her. Finally, the trial court was told that appellant admitted the Weir robbery to a civilian witness (Gladys Santos). Here, in essence,the question “is not cross-admissibility ofthe charged offenses” but rather “the interplay ofevidence between the two occurrences.” (People v. Johnson, supra, 47 Cal.3d at pp. 589-590.) As noted bythis Court in People v. Carpenter (1997) 15 Cal.4th 312, 136 Evidence of both incidents would have been admissible at separate trials of each. Theballistics evidence showed that the same gun was used each time, strongly indicating that the same person committed each crime. Thus, evidence that defendant was the gunman in one incident was evidence that he was the gunman in the other. The evidence of identity was strong for both incidents. (Id. at p.361, citing People v. Medina (1995) 11 Cal.4th 694, 748-749 [“[T]he ballistic evidence alone probably would have been sufficient to justify admission of the ‘other crimes’ evidence.”]; see also People v. Cunningham, supra, 25 Cal.4th at p. 985 [“Because complete cross-admissibility is not “necessary to justify the joinder of counts [citation], in the present case the cross-admissible evidence concerning the gun wouldjustify such joinder.”].) Here, there was sufficient cross-admissible evidence concerning all three incidents so that the trial court did not abuseits discretion in decliningto overturn the statutory presumption ofjoinder. In any event, the absence of cross-admissibility does not by itself demonstrate prejudice. (People v. Mendoza, supra, 24 Cal.4th at p. 161.) Therefore, this Court must examine the other factors to determine if an abuse of discretion occurred. (/bid.) First, each incident involved a robbery combined with other offenses: the Martinez offenses included a robbery and attempted murder; the Weir offenses charged a carjacking and robbery; and the J.S./E.G.incident included robbery, carjacking, and sexual offenses. Noneofthe incidents carried the death penalty. Thus, this factor did not weigh against joinder. | Second, appellant seemingly argues that the J.S./E.G. and Martinez incidents involved inflammatory elements while the Weir robbery was “non- violent”and did not include such elements. (AOB 156-158.) But the relevant inquiry is whether some of the charges were unusually likely to inflame the 137 jury against the defendant. (People v. Musselwhite, supra,17 Cal.4th at p. 1243.) Neither the beating inflicted upon Martinez nor the sexual offenses forced upon J.S.—althoughcertainly not commondaily fare for most members of the public ~ were so unusually inflammatory as to promptthejury to fail to weigh and consider the evidence implicating him in the Weir crimes and honestly assess his guilt. Thus, this factor did not weigh against joinder. Finally, appellant argues that, although the evidence identifying appellant as one of the perpetrators of the Martinez attempted murder was strong, the evidence against him (as presented at the preliminary hearing) concerning the J.S./E.G. and Weir robberies was weak at the time of the motion. (AOB 159.) Because the DNAtesting was not complete until April 1997 (6RT 2704-2705 ; 7ZRT 2766-2767), this information wasnot available for the trial court to utilize in assessing prejudice. However, the information before the trial court, which included the prosecution’s offer of proof (1CT 237-242), demonstrated there was strong circumstantial evidence linking appellant to each of the three incidents. This factor, too, did not weigh in favor of severance. It was appellant’s burden below, and remainshis burden on appeal, to demonstratethatthetrial court’s denial ofhis motionto sever“fell outside the bounds of reason,” (See People v. Manriquez, supra, 37 Cal.4th at p. 573.) Because he fails to make that showing, his challenge to the first motion for severance should be denied. C. The Court Properly Joined The Charges Arising From The Murder Of Koen Witters With The J.S./E.G., Weir, And Martinez Crimes 1. Denial Of Prosecution’s Motion To Consolidate KA034540 (Drebert And.Appellant) With KA030671 On January 24, 1997, an amended 14-count information (omitting a count 5) wasfiled under case number KA030671 naming appellant, Pritchard, 138 Vera, and Drebert as defendants. (IV Supp 1CT 277-288.) Thereafter, in Los Angeles County Superior Court case number KA034540, appellant and Michael Drebert were charged with the murder and burglary ofKoen Witters and the burglary and robbery of Ruth and Patrick Weir. After being held to answer (2CT 361, 365, 385-536), an information was filed in case number KA034540 on April 14, 1997. (2CT 538-541.) Appellant pled not guilty and denied the special allegations. (2CT 542.) On April 14, 1997, the People filed a motion to consolidate case number KA030671 (charging appellant, Pritchard, Vera, and Drebert) with case number KA034540 (Drebert and appellant). (2CT 545-558.) In the motion, the prosecution argued the cases were properly joinedbecause they were the same class of crimes (2CT 554-555), were connected together in their commission (2CT 555-556), and the evidence was cross-admissible (2CT 556-558). On April 21, 1997, appellantfiled objectionsto the prosecution’s consolidation motion, conceding all of the crimes were of the same class (home invasion robberies) but arguing the rape case was prejudicially inflammatory, the Weir and J.S. offenses were weak as to appellant, only the murder chargecarried the death penalty and the sheer number ofcounts would - serve to prejudice appellant as to the capital count, and evidence ofthe crimes were not cross-admissible. (3CT 587-592.) Theprosecution filed a reply on April 28, 1997, arguing that appellant had failed to meet his burden to demonstrate prejudice. (3CT 606-616.) Codefendant Vera also filed an opposition to the motion to consolidate. (CT 63 1-636.}* On May 28, 1997, 31. On April 15, 1997, appellant filed 4 motion to severhistrial from that of codefendant Drebert based upon People v. Aranda, supra, 63 Cal.2d at p. 530. (3CT 573-584.) The prosecution filed an opposition on April 28, 1997. (3CT 594-598.) The court denied the motion on May 27, 1997. G@CT 641.) 139 the prosecution filed a supplemental brief in support of its motion to consolidate. (3CT 643-646.) A hearing on the motion was held on May 30, 1997. (IRT 127-129.) After eliciting that the prosecution would seek the death penalty as to appellant only (1IRT 128), the trial court denied the consolidation motion based upon the following finding: As to the motion to consolidate, the court has reviewed theentire file, reviewed the People’s theory, reviewed their concern. I think an overwhelming fact for this court is the undue prejudice for the defendants that are not involved in the alleged murder occurring on December 9th 1995. I think it would undulytaint their right to a fair trial and the court should deny the motion to consolidate as to case no. KA034540. Weare at 3 of 30 on that case. (IRT 128-129; 3CT 647.) Subsequently, the court clarified that it would permit consolidation of counts 4 and 5 of case number KA034540, which alleged the Weir offenses, but not as to counts | through 3. (1RT 129.) 2. The Prosecution’s Motion To Sever Pritchard And Vera From Case Number KA030671 And Join KA034540 With The Severed Case Number KA030671 As To Appellant And Drebert On June 5, 1997, the People filed an amended three-count information charging appellant and codefendant Drebert with the murder ofKoen Witters (§ 187, subd. (a)) with special-circumstance allegations that the murder occurred during the commission ofa residential burglary and robbery (§ 190.2, subd. (a)(17)),first degree residential burglary (§ 459), andfirst degree residential robbery (§ 211). (3CT 659-661.) On June 18, 1997, an amended information wasfiled against all four defendants in case number KA030671. (IV Supp 2CT 318-330.) 140 On September3, 1997, in case number KA030671, the prosecution filed a motion to severthe charges pending against appellant and codefendant Drebert from the charges pending against codefendants Vera and Pritchard and to consolidate the charges against appellant and Drebert pending in case number KA030671 with the offenses charged in case number KA034540, (3CT 709-726.) The prosecution phrased the motion, not as a request for reconsideration ofthe prior ruling on consolidation but as “an alternative not consideredat the time ofthe prior ruling: consolidation, for purposesoftrial, of all charges pending against defendants Capistrano and Drebert only, the two special circumstance defendants.” (3CT 712.) After reviewing the evidenceofthe various offenses that would be presented (3CT 713-719), the motion argued that the statutory requisites for joinder were met (3CT 719- 721), the evidence of the Weir, Martinez, and J.S./E.G. crimes wascross- admissible as to Drebert to show the requisite intent (3CT 722-723), and that consolidation would promotejudicial efficiency as to appellant since the Weir, J.S./E.G. and Martinez crimes “will be offered as evidence in aggravation should the Witters robbery-murder reach penalty phase.” (3CT 723.) The motion was heard on September 15, 1997, before the Honorable Robert A. Dukes. (IRT 171-182; 3CT 763-777.) At argument, the prosecution argued that the Witters, Weir and J.S./E.G. offenses shared a similar modus operandi, in that they were homeinvasion robberies in the San Gabriel Valley and the victims were tied up at gunpoint and robbed of personal property. (1RT 173-174.) Appellant’s counsel argued that the capital murder charge was the weakest of the charges given its dependence upon appellant’s statement to Gladys Santos, there was a danger the jury 32. The written opposition referenced by appellant in his Opening Brief(AOB 142) is a copy ofthe oppositionfiled to the April 1997 motion for consolidation. (3CT 750-755; see 3CT 587-592.) 141 Sr grkieAinRentinifiaMeter oe gain RA ented et - would be unable to separately evaluate the evidence ofthat crime given the other charges, and the modus operandi for these offenses was no. more “common” than for most residential robberies and, therefore, was not particularly distinctive. (LRT 175-176.) Finally, appellant’s counsel stated that appellant was not willing to waive additional time on case number KA030671. (IRT 176.) | The court observed that the capital trial would not be able to proceed within the time frame established for case number KA030671. (1RT 179- 180.) Indeed, the court noted, “I believe that the counts are on -- are imminently severable and joinable on the capital case and -- but for the problem, the impossibility the court would have to accommodate under the time constraints, I would grant your motion.” (1RT 180.) However, the court afforded the prosecution until 4:00 p.m.to file authorities in support of the proposition that the time constraints for case number KA034540 would apply to all ofthe joined counts. (1RT 180.) On September18, 1997, the trial court reconsidered and granted the prosecution’s motion to sever the charges against Pritchard and Vera andjoin the charges as to appellant and Drebert in case number KA030671 with case number KA034540. (1RT 185-186; 3CT 778-779.) The court further overturnedits prior ruling concerningthe court’s difficulty in obtainingjurors as follows: . Uponreflection, the court cameto the conclusionthat as the counts - are properly severable and joinable, that on a legal basis they should be, but the court’s difficulty is not good cause to either continue over the counts[sic] — to continue the counts that are zero often beyond the ten days that had beenraised, but that the court must accommodate the desire of the defendantin that regard. 142 So with that in mind, I have indicated or am indicating at this time that I am granting the motion to join the counts; that if all counsel are able to announce ready toproceed, that this Court will make a court available and jurors available. Along that line, I have counseled and — communicated with Judge Reid, the supervising judgeof criminal in the county, and.it may necessitate ordering in panels of 35 jurors each day until weget a jury, but if that’s what needs to be done,that needs to be done. (IRT 186-187.) Pursuantto the court’s order for severance/consolidation of the cases against appellant and codefendant Drebert (see 1RT 188), on September25, 1997, the Los Angeles County District Attorney filed an amended16-count information consolidating the charges previously alleged in case numbers KA030671 and KA034540. (3CT 790-801.)*2/ 3. The Trial Court Did Not Abuse [ts Discretion In Joining The Witters Offenses The trial court properly permitted appellant’s case to proceed as a single trial, despite any supposed differences between his offenses. Though appellant endeavors to distinguish between the crimeson the basis of their . relative prejudice, his attempt fails. There was no abuseofdiscretion. Appellant fervently contends that the Martinez, Weir and J.S./E.G. offenses were not cross-admissible as to the Witters murder. (AOB 160-163.) Asdiscussed above(Arg. VII.B.3, ante), the Martinez, Weir, and J.S./E.G. transactions were cross-admissible as presenting a commondesignorplan. 33. Appellant mistakenly states that appellant alone was charged with the Martinez crimes. (AOB 142.) Both appellant and Drebert were charged with those offenses. (3CT 790-801.) Drebert was not charged with the crimes against J.S. and E.G.alleged in counts 4 through 10. G@CT 790-801.) 143 Common elements betweenthese three incidents and the Witters murdermade each incident cross-admissible to the Witters incident. In the J.S., and Weir crimes, multiple men with guns drawn accosted the victims after they drove into their detached garages on a Decemberevening andforced them into their homesto ransack the residencesandsteal property. A modus operandisimilar to that utilized in the J.S./E.G. and Weir incidents was suggested by the crime scene evidence presented at the Witters murder — Ms. Chen dropped Witters off at his apartment at 4:00 p.m. on December9 as the winter evening hours approached,and Witters was discovered wearing swim trunks, suggesting that he hadleft the apartment for a swim andhadbeen targeted as he was followed home. Additionally, the Witters, Martinez, and J.S./E.G. crimes shared the common element of binding: J.S. and E.G. were bound with ties and belts taken from their closets; Martinez was bound with items taken from his closet; and Witters was bound with socks and videotape taken from his suitcase or apartment. Indeed, the particular use ofpersonal items taken from the victims and the placement ofthe gags and ligatures in the various incidents strongly suggested the same perpetrator(s) committed all of the offenses. Thus,this factor did not weigh against joinder. Again,the absenceofcross-admissibility does not by itselfdemonstrate prejudice. (People v. Mendoza, supra, 24 Cal.4th at p. 161.) Therefore,this Court must examine the other factors to determine if an abuse of discretion occurred. (/bid.) Admittedly, only the Witters murder carried the death penalty, but joinder did not convert the Witters charges,or anyofthe otherincidents,into capital offenses, nor did it likely affect any verdicts. (See People v. Ochoa, supra, 26 Cal.4th at p. 423; People v. Sandoval (1992) 4 Cal.4th 155, 173.) Thus, this factor does not demonstrate an abuseofdiscretion. 144 Second, appellant argues that the rape scenario presented in the J.S./E.G. incident and the brutal beating inflicted upon Martinez could be viewed by a juror as “more inflammatory than the facts surrounding the Witters murder.” (AOB 164-165.) The relevant inquiry is whether some of the charges were unusually likely to inflame the juryagainst the defendant. (People v. Musselwhite, supra, 17 Cal.4th at p. 1243.) The trial court was aware that appellant’s own confession implicated him in the murder-- and the trial court (although not the jury) was aware that appellant’s confession was corroborated by Drebert’s videotaped statements to the police. Measured against the calculated strangulation ofa bound and gagged Witters struggling for his life, neither the beating inflicted upon Martinez northe sexual offenses forced upon J.S. were so unusually inflammatory as to promptthe jury to fail to weigh and considerthe evidence implicating appellant in the Witters crimes and honestly assesshis guilt. Thus, this factor did not weigh against joinder. Third, appellant argues that, although the evidence identifying appellant as one of the perpetrators of the Martinez attempted murder was very strong and that recovered property, voice identification, and DNA evidence linked him to the Weir and J.S./E.G. crimes, the evidence against appellant concerning the Witters robbery and murder was weak in that it consisted solely of his admissions to Gladys Santos. (AOB 165-166.) However, it was not for the trial court, or for this Court, to assess Santos’s credibility in determining whether joinder was appropriate. Based upon the information beforethetrial court, this factor did not weigh against joinder. Because appellant did not meet his burden to demonstratethatthetrial court’s denial of his motion to sever“fell outside the bounds of reason” (see People v. Manriquez, supra, 37 Cal.4th at p. 573), his challenge to the joinder of the Witters offenses should be denied. 145 immenseARIASOhneNee OL Sm geen Hane ee D. Appellant Has Not Shown Gross Unfairness Resulting From The Joinder Aside from his attack on thetrial court’s denial ofseverance, appellant urges this Court to find that joinderresultedin a trial that was fundamentally unfair and, therefore, violated his right to due process guaranteed underthe | United States Constitution. (AOB 169-182.) The argument fails, as the refusal to sever appellants trial did not compromise the fundamentalfairness of the proceedings. To gain reliefunder the Due Process Clause, a defendant must shoulder the heavy burden ofdemonstratingthat the alleged error renderedthe resulting trial fundamentally unfair. (See Hollins v. Department ofCorrections, State ofIowa (8th Cir. 1992) 969 F.2d 606, 608; accordPeople v. Ochoa (1998) 19 Cal.4th 353, 409.) The Supreme Court has, therefore, held that “[i]mproper joinder does not, in itself, violate the Constitution. Rather, misjoinder. . rise[s] to the level of a constitutionalviolation onlyifit results in prejudice so great as to deny a defendanthis... right to a fair trial.” (United States v. Lane (1986) 474 U.S. 438, 446, fn. 8.) While undueprejudice mayarise from the joinder of strong and weakcases, the federal courts agree with this Court that cross-admissible evidence dispels any potentially improper influence stemming fromjoinder. (Sandoval v. Calderon (9th Cir. 2001) 241 F.3d 765, 772, citing Bean v, Calderon (9th Cir. 1998) 163 F.3d 1073, 1084-1085; United States v. Johnson (9th Cir. 1987) 820 F.2d 1065, 1070-1071; accord People v. Osband (1996) 13 Cal.4th 622, 666.) Consistent with the federal authority, this Court has noted that “[e]ven ifthe ruling was correct when made, we mustreverseifdefendant showsthat joinder actually resulted in ‘gross unfairness,’ amounting to a denial of due process.” (People v. Ochoa, supra, 19 Cal.4th at p. 409, quoting People v. Arias (1996)13 Cal.4th 92, 127.) In truth, the evidenceestablishing appellant 146 wastheassailantin all the charged crimes wasvirtually conclusive, especially in light of his admissions, the stolen property recovered, and ultimately the DNA evidence. Nogross unfairness occurred in this case,asall appellant’s offenses “were quite inflammatory in nature,” and the evidence as to each crime wasstrong and cross admissible, as demonstrated above. (See, ante, Arg. V.D, Arg.VIE.) Pulling isolated bits oftestimony and the prosecutor’s argumentout of context, appellant misconstrues the evidenceelicited and the prosecutor’s argument to suggest “gross unfairness” resulted from the joinder of the charges. (AOB 170-1 82.) Appellant apparently concluded these points were too insubstantial to warrant separate challenges as evidentiary errors or assign as improper argument on a relevant theory. A review ofthe totality of the evidence presented and the argumentofcounsel abundantly demonstrates no impropriety occurred andthatjoinder did not result in fundamental unfairness. Appellant urges a myopic view of the evidence in support of his assertion that the prosecutor improperly used the Martinez offenses to argue a “guilt by association theory.” (AOB 170-174.) The prosecutor did not argue that appellant was guilty because he associated with other criminals. Rather, evidence that Pritchard, Vera, appellant and Drebert were always together, that appellant was the oldest, that Pritchard and Drebert referred to appellant as “Dad,” and the booking information compiled when appellant, Drebert, Pritchard, and Vera were arrested all would havebeen admissible had separate trials been held for the J.S./E.G. and Weir incidents since that evidence circumstantially and properly established that appellant was the dominant robberandtherapist in the J.S./E.G.incident and a participant in the Weir offenses. DNA evidence, stolen property and his physical description linked appellant to the J.S. incident, and appellant’s confession and stolen property linked him to the Weirincident. 147 Appellant argues that joinder of the Martinez offenses permitted the prosecutor to elicit testimony suggesting appellant, Pritchard, Vera, and Drebert had the physical appearance of gang members. (AOB 174-178.) However, the J.S./E.G. incident included references to gang insignia and a threat by the robbers that if the victims called the police, the robbers “homeboys” would harm them. (7RT 2925, 2928-2929; 8RT 3011, 3013- 3014.) Also, appellant’s physical appearanceat the time ofhis arrest and at trial, which was consistent with the descriptions elicited from the trial witnesses, would have been before the jury even if each incident was tried separately. Indeed, according to the record, appellant himself had obvious gang tattoos on his hands and head that were too many to conceal from the jury. (IRT 1013; 11RT 4029-4032.) Similarly, Drebert’s physical appearance was before appellant’s jury since he wastried jointly with Drebert, and appellant does not challenge the joinder of his case with that of Drebert despite his claim of Bruton error (see Arg. VI, ante). Moreover, booking photographs andphysical descriptions of all four defendants were admitted during thetrial. (IV Supp 2CT 350-355; IV Supp 2CT 361-366.) Some,if not all, of these photographs and information, would have been admissible even if each incident had been tried separately. All four defendants were clearly relevant to the Martinez and J.S./E.G. offenses given the positive identification by Martinez and J.S.’s description of the robbers. Furthermore, appellant complainstheprosecutor’s argumentto thejury “exacerbated”the prejudice resulting from thejoinder ofthe incidents. (AOB 178-181.) None ofthese arguments resultedin a trial that was fundamentally unfair. In this case, the corpus delecti of the Witters murder were established by the crime scene investigation, which included the obvious ransacking of the apartment, and the autopsy. Appellant made a detailed and self- 148 corroborating confession to the murder of Koen Witters. His confession provided details that could only have been knownbythe killer or someone present when the murder occurred. Particularly, appellant’s confession revealed that he had observed the victim shaving prior to entering the apartmentto rob him (SRT2442); investigating officers found shaving cream and stubble in Witters’s bathroom sink. (SRT 2372). Appellant admitted strangling and cutting the victim (SRT 2439-2441, 2443); Witters was bound, gagged, strangled, and his wrists cut, and the small quantity of blood suggested Witters was dead or dying whenthe cuts were made (SRT 2368, 2370, 2382, 2389-2390; 7RT 2812-2820, 2831-2832). Witters’s Apple MacIntosh computer wasstolen during the robbery. (SRT 2344-2345, 2351- 2354, 2357-2358, 2373-2376, 2381.) After the murder, appellant asked Santos ifshe knew anyone who wanted a desktop Apple MacIntosh computer. (SRT 2447-2448, 2461.) Appellant commented that the victim “liked to travel to Europe” (SRT 2447) and liked Asian women (SRT 2445, 2447); Witters was Belgian citizen, his girlfriend was Taiwanese,and a photograph of an Asian woman wasfound on his ransacked bed. (SRT 2334-2337, 2346- 2348, 2371-2372.) Appellant’s demonstration of how he used the belt to strangle Witters was consistent with the physical evidence. (SRT 2439-2441.) There was abundant evidence of the Martinez robbery and attempted . murder. Whilestill hospitalized for his injuries, Martinez identified appellant, codefendant Drebert, Eric Pritchard and Jason Vera as his attackers. (4RT 2206-2210.) Martinez, Jose ‘Canales, Gladys Santos and defense witness Jessica Rodriguez all confirmedthat appellant was almost constantly present with Drebert, Pritchard and Vera. (4RT 2126-2129.) Indeed, Martinez, Santos and Rodrigueztestified that they called appellant “Dad.” (4RT 2165; ORT 3284.) It was essentially undisputedat trial that appellant, who was the oldest and physically largest of the group, was the ringleader. 149 Evidenceofthe J.S./E.G.offenses was also compelling. J.S. positively identified Pritchard and Vera as two of the four robbers who invaded her homeandterrorized her and her husband. Shepositively identified Pritchard as the perpetrator ofonethe forcible oral copulation counts. Her descriptions _ of the height and build of the four robbers circumstantially implicated | appellant as | the rapist and leader of the group. Moreover, appellant’s identification as the leader was consistent with his role as leader of a group of young men whocalled him,“Dad.” DNAevidencestrongly linked appellant to the sexual offenses against J.S., which necessarily implicated him in the other crimes against J.S. and E.G. (7RT 2910-2921, 2943-2948.) And DNA testing conclusively excluded Drebert, Pritchard and Veraas donorsof the sperm fraction of the vaginal swab taken from JS. (7RT 2752-2754, 2756- 2760.) . Additionally, there was strong evidence appellant committed the Weir robbery and carjacking. Appellant admitted robbing the Weirs in a conversation with Gladys Santos and had herdrive him to a residence in West Covina that was near a school and was approximately four blocks from the Lido Apartments to recover coins he claimed to have taken during the robbery. Appellant told Santos theyhad taken Christmaspresents, a white car, and groceries during the robbery andthat a police officer lived in the house. When they reached the designated location, the coins were not where appellant had left them. (SRT 2449-2453.) Ruth Weir testified that the robbers stole a Ziplock sandwich bag containing commemorative coins, and one ofher neighbors returned the coins to her approximately a weekafterthe | robbery. (8RT 3088-3090.) Moreover, Weir’s neighboridentified a two-tone car similar to that driven by appellant’s cousin, Jessica Rodriguez, as being outside the Weir homeboth before and immediately after the robbery. (8RT 3103-3104.) Appellant had been repeatedly seen in this car. Santos gave the 150 police eight gold chains belonging to Ruth Weir which she found inside a room of her apartment used by appellant’s daughter. And a porcelain angel belonging to Ruth Weir that was found in the apartment Martinez shared with Amy Benson, when combined with Martinez’s testimony that Benson hung around the complex with appellant, Pritchard, Drebert andVera on a near | daily basis, further linked appellant to the Weir robbery. (4RT 2165, 2172- 2173.) Appellant received a fundamentally fair trial, notwithstanding the joinder of charges. Any alleged error therefore fails to rise to constitutional proportion and did not prejudice the verdict. (See United States v. Lane, supra, 474 US.at p. 446,fn. 8; People v. Ochoa, supra, 19 Cal.4th at p. 409.) 151 VIII. NO SUA SPONTE INSTRUCTION MORE SPECIFICALLY RESTRICTING CROSS- ADMISSIBILITY OR CONSIDERATION OF THE EVIDENCE WAS REQUIRED Appellant’s jury wasinstructed with a standard version ofCALJIC No. 17.02 as follows: “Each count charges a distinct crime. You mustdecide each count separately. The defendant may be found guilty or not guilty ofany or all of the crimes charged. Yourfinding as to each count mustbe statedin a separate verdict.” (1ORT 3748-3749; SCT 1308.) Without specifying the actual languagethetrial court should have employed, appellant argues the failure of the trial court to sua sponte instruct the jury that it could not consider evidence of one charged offense to convict him of another charged offense prejudicially violated his state and federal constitutionalrights to due process, to an unbiasedjury, and to a reliable penalty determination. (AOB 184-197.) By failing to object to or request modification ofthe standardjury instruction in the court below (see 9RT 3335-3349; 1ORT 3708-3709), appellant waivedany claim thatthe instruction, as given, was erroneous. (See People v. Geier (2007) 41 Cal.4th 555, 599-600 [no sua sponte obligation to instruction jury to limit consideration ofevidence to specific counts].) In any event, the trial court was underno sua sponte obligation to modify CALJIC No. 17.02 to inform the jury it should decide each countseparately as if no other counts were charged. CALJIC No. 17.02 adequately conveyed to the jury that they were to decide each count charged against appellantseparately. Additionally, despite appellant’s claims to the contrary, evidence as to each count was cross-admissible pursuant to Evidence Codesection 1101. (See Arg. VII, ante.) Moreover, this Court recently rejected similar arguments in People v. Geier, supra, 41 Cal.4th at pages 599-600. Appellant presents no 152 new or.persuasive reason for a different result here. These claims should be rejected. As appellant acknowledges, this Court has previously held that CALJIC No. 17.02 need not be modified sua sponte. (AOB 190 [referencing People v. Beagle (1972) 6 Cal.3d 441, 456, overruled on other groundsin People v. Castro (1985) 38 Cal.3d 301].) Without specifying the actual languagethe trial court should have employed, appellant arguesthat thetrial court should have,sua sponte, given an instruction similar to instructions read to the juries in People v. Holbrook (1955) 45 Cal.2d 228, and People v. Bias (1959) 170 Cal.App.2d 502. (AOB 190-191.) Neither Holbrook nor Bias suggested, muchlessheld,that a criminal defendant wasentitled to sua sponte instructions that limited consideration of certain evidence to specific counts absent a request. Appellant further points to this Court’s decision in People v. Catlin (2001) 26 Cal.4th 81, to argue that this Court “recognize[d] that there is a difference between the right of the jury to consider all of the admissible evidence as supportive ofguilt on all ofthe counts and the procedural concept of arriving at separate verdicts for each count.” (AOB 192.) In Catlin, the defendant requested a special instruction that would have provided,“Evidence applicable to each offense charged mustbe consideredasif it were the only accusation before the jury.” (/d. at pp. 86-87.) This Court concludedthetrial ~ court correctly declined to give the instruction, noting that “under Evidence Code section 1101 the jury properly could consider other-crimes evidencein connection with each count, and also could consider evidence relevant to one ofthe charged countsasit considered the other charged count.” (/d. at p. 87.) This Court by no means suggested any modification of CALJIC No. 17.02 | would be required, sua sponte, without a request from a criminal defendant. 153 To the extent appellant now relies uponPeople v. Armstead (2002) 102 Cal.App.4th 784, to argue that the trial court’s error in failing to sua sponte | modify CALJIC No. 17.02 was further compoundedbythe court’s instruction on defendant’s presumption of innocence and the meaning of reasonable doubt pursuant to CALJIC No. 2.90 (AOB 196-197), unlike the situation presented in Armstead, here there is no evidence that appellant’s jury misunderstood any instruction and was incapableofdistinguishing between the chargesand deciding each on its own merit. Even assumingthetrial court had a sua sponte obligation to modify CALJIC 17.02 to instruct the jury it should decide each count separately on the law and evidence applicable to it, any error is harmless because the evidence as to each count was very strong and there was no indication whatsoeverthat the jury did not decide each count on an individual basis. Appellant confessed the Witters murder to Gladys Santos. Michael Martinez positively identified appellant as his primary attacker, a porcelain angel taken during the Weir robbery was found in Martinez’s apartment, appellant confessed the Weir robbery to Santos as he had her drive him to the Weir neighborhoodto collect coins stashed after the robbery, property taken during the Martinez, Weir andJ.S./E.G. incidents wasleft by appellant in Santos’s apartment and turned over to the police, and DNA testing conclusively excluded Pritchard, Drebert and Vera as possible perpetrators of the rapes of J.S. but revealed that all nine genetic markers tested were consistent with appellant’s DNA. Anyerror in not sua sponte modifying CALJIC No. 17.02 was harmless under any standard. 154 IX. THE GUILT PHASE INSTRUCTIONS DID NOT IMPERMISSIBLY UNDERMINE OR DILUTE THE REQUIREMENT OF PROOF BEYOND A REASONABLE DOUBT Appellant contendsthat the guilt phasejury instructions impermissibly reduced the prosecution’s burden of proof and prejudicially violated appellant’s constitutional rights. (AOB 198-236.) Appellant’s claims as to CALJIC Nos. 1.00, 2.03, 2.01, 2.02, 2.21.1, 2.21.2, 2.22, 2.27, and 2.51 are meritless because this Court has previously rejected the identical arguments raised by appellant. Similarly, appellant’s constitutional claims concerning CALJIC No. 2.15 have been previously rejected by this Court and his claim there was insufficient evidence to warrant the instruction lacks merit. A. Circumstantial Evidence Instruction & Other Instructions Appellant contends that various instructions given at the guilt phase underminedthe requirement ofproofbeyond a reasonable doubt. (AOB 199- 206.) Specifically, he contends that the instructions on circumstantial evidence (CALJIC Nos. 2.01, 2.02) “undermined the requirement of proof beyond a reasonable doubt” (AOB 199-203), while other instructions (CALJIC Nos. 1.00, 2.03, 2.21.1, 2.21.2, 2.22, and 2.27) “distorted the reasonable doubt standard” (AOB 203-206). This Court has previously rejected the identical arguments raised by appellant, and he proffers no persuasive reason to overturn this Court’s precedent. Appellantfirst maintains the instructions on circumstantial evidence (CALJIC Nos. 2.01, 2.02)}-which effectively advised the jury that if one interpretation ofthe evidence “appears to you to be reasonable[and] the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable”(see 1ORT 3714-3715; 5CT 1256, 155 aaeaeanaae 1257)—permitted the jury to find him guilty “if he reasonably appeared guilty ... even if they entertained a reasonable doubtasto his guilt.” (AOB 200.) Appellant maintains the instructions “created an impermissible mandatory presumption that required the jury to accept any reasonable incriminatory interpretation of the circumstantial evidence unless appellant rebutted the presumption by producing a reasonable exculpatory explanation.” (AOB 201.) Thus, appellant argues the instructions “hadthe effect of reversing the burden of proof’ by requiring appellant to come “forward with evidence explaining the incriminatory evidenceput forward bythe prosecution.” (AOB 202.) In People v. Nakahara (2003) 30 Cal.4th 705, 714, this Court rejected the identical arguments raised by appellant and noted “. . . we have recently rejected these contentions and wesee noreason to reconsider them.” (See People v. Guerra, supra, 37 Cal.4th 1067, 1139 [““We have repeatedly rejected these arguments, and defendantoffers no persuasive reason to reconsider our prior decisions.’’]; see also People v. Riel (2000) 22 Cal.4th 1153, 1200.) Appellant next contends that CALJIC Nos. 1.00 (regarding the respective duties of the judge and jury) misled the jury by informing them “that their duty was to decide whether appellant was guilty or innocent, rather than whether he was guilty or not guilty beyond a reasonable doubt.” (AOB 203-204; see 1ORT 3710-3711; SCT 1250-1251.) This Court hasrejectedthis identical claim. (See People v. Guerra, supra, 37 Cal.4th at p. 1139; People v. Nakahara, supra, 30 Cal.4th at p. 714; People v. Frye, supra, 18 Cal.4th at pp. 957-958.) Appellant also urges that CALJIC No. 2.21.1 (discrepancies in testimony) and CALJIC No.2.21.2 (witness willfully false) “lessened the prosecution’s burden of proof’ becausethe instructions “authorizedthe jury to reject the testimony of a witness ‘willfully false in one material part of his or her testimony’ unless ‘from all the evidence, you believe the probability of 156 | truth favorshis or her testimonyin otherparticulars.’” (AOB 204; see 1ORT 3718-3719; SCT 1262-1263.) The prosecution’s burden of proof was thus lessened, appellant continues, because the instructions allowed the jury “to credit prosecution witnesses by finding only a ‘mere probability of truth’ in their testimony.” (AOB 204.) However, “the targeted instruction says no such thing.” (People v. Nakahara, supra, 30 Cal.4th at p. 714, citing People v. Hillhouse (2002) 27 Cal.4th 469, 493, and People v. Riel, supra, 22 Cal.4th at p. 1200; see also People v. Guerra, supra, 37 Cal.4th at p. 1139.) Appellant also argues that CALJIC No. 2.22 (weighing conflicting testimony) improperly advised the jury “to determine which party has presented evidence that is comparatively more convincing than that presented by the other party.” (See 1ORT 3719; 5CT 1264.) And by doing sO, appellant says, the instruction “replaced the constitutionally-mandated” reasonable doubt instruction with a standard which is “indistinguishable” from the preponderance ofthe evidence standard. (AOB 205.) As noted by this Court in People v. Nakahara, supra, 30 Cal.4th 705: | weadopt the reasoning ofCourt ofAppeal cases holding that CALJIC No, 2.22 is appropriate and unobjectionable when, as here, it is accompanied by the usual instructions on reasonable doubt, the presumption of innocence, and the People’s burden of proof (see CALJIC No. 2.90). (People v. Nakahara, supra, 30 Cal.4th at pp. 714-715.) As appellant’s jury was instructed with the usual instructions on reasonable doubt, the presumption of innocence, and the prosecution’s burden of proof (10RT 3720-3721; SCT 1267-1268, 1274), appellant’s challenge to CALJIC No. 2.22 must be rejected. (See also People v. Guerra, supra, 37 Cal.4th at p. 1139.) 157 Appellant also contends that CALJIC No. 2.27 (sufficiency of testimony of one witness) was “flawed” becauseofits “erroneous suggestion that the defense, as well asthe prosecution,had the burden ofproving facts.” (See 1ORT 3719-3720; 5CT 1265.) He asserts that CALJIC No. 2.27, by telling the jury that “testimony of one witness which you believe concerning any factis sufficient for the proofofthat fact” andthat “[y]ou should carefully review all the evidence upon whichthe proof of such fact exists,” without qualifying this language to apply only to prosecution witnesses, permitted reasonable jurors to conclude that (1) appellant himself had the burden of convincing them that the homicide wasnota first degree murderand(2) that this burden wasa difficult one to meet. (AOB 206.) This Court rejected appellant’s contention in People v. Turner (1990) 50 Cal.3d 668, when it held that limiting CALJIC No.2.27 to prosecution witnesses only would permit the defense witnesses an unwarranted aura of veracity. As explained inPeople v. Montiel (1993) 5 Cal.4th 877: We acknowledged [in Jurner] some ambiguity in the modified instruction’s undifferentiated reference to “proof” of “facts,” but we madeclearthat application of the single-witness instruction [CALJIC No. 2.27] against the prosecution alone would accord the testimony of defense witnesses an unwarranted aura ofveracity. (People v. Montiel, supra, 5 Cal.4th at p. 941.) Moreover, as in Jurner and Montiel, given the instructions that the prosecution had the burden ofproving the elements ofthe offenses beyond a reasonable doubt, it is difficult to “imagine that the generalized reference to ‘proof’ of ‘facts’ in CALJIC No. 2.27 would be construed by a reasonable jury to undermine these much-stressedprinciples.” (People v. Turner, supra, 50 Cal.3d at p. 697; see People v. Montiel, supra, 5 Cal.4th at p. 941.) Accordingly, appellant’s contention mustbe rejected. 158 Finally, as appellant correctly notes (AOB 232-233), this Court has rejected his claims as to the challenged instructions as lessening the prosecution’s burden of proof and by operating as a mandatory conclusive presumption of guilt. He asks this Court to reconsider these holdings. (AOB 232-235.) However, appellant presents nothing new, persuasive or compelling in support of his request. Thus, there is no reason to reconsider these precedents. (People v. Nakahara, supra, 30 Cal.4th at p. 714.) B. CALJIC No. 2.51 Did Not Inform The Jurors That They Could Find Appellant Guilty Solely On The Basis Of Motive Appellantasserts that CALJIC No. 2.51 (regarding motive) improperly allowed the jury to convict him on the basis of motive alone and shifted the burdenofproof to appellant to show the absenceofmotive thereby lessening the prosecution’s burden of proof. (AOB 207-212.) The jury wasinstructed with CALJIC No.2.51 as follows: Motive is not an elementofany ofthe crimes charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. The presence of motive may tend to establishthe defendant is guilty. Absence ofmotive may tend to show that the defendantis not guilty. (10RT 3720; SCT 1266.) At the outset, appellant waived this claim. by failing to request clarification at the timeoftrial. (See People v. Guerra, supra, 37 Cal.4th at p. 1134 [claim that motive instruction does not explicitly tell the jury that motive aloneis an insufficient basis to convict waived whereclarification was not requested at trial; however, claim that motive instruction shifted the prosecution’s burden of proof was cognizable on appeal despite appellant’s failure to object because it implicates his substantial rights]; People v. 159 Hillhouse, supra, 27 Cal.4th at p. 603.) Nevertheless, this Court has previously rejected this claim and theory, and appellant offers no reason for reconsideration ofthe issue. As this Court noted in People v. Snow (2003) 30 Cal.4th 43, “the instruction tells the jury that motive is not an elementofthe crime charged (murder) and need not be shown,whichleaveslittle conceptual room for the idea that motive could establish all the elements of murder.” (Id. at p. 98; People v. Guerra, supra, 37 Cal.4th at p. 1 134; People v. Cleveland (2004) 32 Cal.4th 704, 750.) Appellant’s assertion that the instruction diluted the prosecution’s burdenof proof because the jury would have been unable to distinguish between motiveand intent concerning the robbery charges and robbery and burglary special circumstance allegations (AOB 209-212) has likewise been rej ected, where,as here, the two termswerenot used interchangeably and the jury was instructed that intent was a necessary element of robbery (1ORT 3726-3727, 3735-3736; SCT 1293, 1278) and burglary (1ORT 3726-3727, 3734-3735; 5CT 1290, 1278). (See People v. Guerra, supra, 37 Cal.4that p. 1134 [wherejury wasinstructed on intent andthe terms“intent “and “motive” werenot referenced interchangeably, there was no reasonable likelihoodthat the jury understood those two terms to be synonymous]; People v. Prieto (2003) 30 Cal.4th 226, 254 [‘“no reasonablejuror would misconstrue CALJIC No. 2.51 as ‘a standard of proof instruction apart from the reasonable doubt standard set forth clearly in CALJIC No. 2.90”); People v. Cash (2002) 28 Cal.4th 703, 738-739; People v. Hillhouse, supra, 27 Cal.4th at p. 504.) | For the foregoing reasons, appellant’s claim fails. C. CALJIC No. 2.15 After both parties rested, a conference washeld to discuss the jury instructions. (9RT 3335-3352.) Appellant’s counsel did not voice an objection to or request modification orclarification ofCALJIC No. 2.15. The 160 court instructed the jury with standard CALJIC No. 2.15 as follows: If you find that the defendant was in conscious possession of recently stolen property, the fact of that possession is not byitself sufficient to permit an inference that the defendant is guilty of the crime of robbery, home invasion robbery in concert or carjacking. Before guilt may be inferred, there must be corroborating evidence tending to prove defendant’s guilt. However, this corroborating influence -- excuse me,this corroborating evidence need only beslight, and need notbyitself be sufficient to warrant an inference of guilt. As corroboration, you may considertheattributes ofpossession [—] time, place and manner that the defendant had an opportunity to commit the crimes charged, the defendant’s conduct, or any other evidence which tends to connect the defendant with the crimes charged. (LORT 3716-3717; 5CT 1259.) Appellant argues that CALJIC No.2.15 created an improperpermissive inference thereby impermissibly lightening the prosecution’s burdenofproof, improperly permitted the jury to use evidenceofpossessionofstolen property to convict on unrelated crimes, and was unsupported by the evidence. (AOB 212-232.) Because appellant did object to the reading of CALJIC No. 2.15 in the trial court and did not request clarification or modification of the instruction, this claim is not preservedfor appeal. In any event, this Court has repeatedly rejected appellant’s claims that the instruction created an improper permissive inference, impermissibly lightened the prosecution’s burden of proof, or improperly permitted thejury-to use evidenceofpossession ofstolen property to convict on unrelated crimes. (People v. Prieto, supra, 30 Cal.4th at pp. 248-249; People vy. Holt (1997) 15 Cal.4th 619, 676, 677; see also ‘Barnes v. United States (1973) 412 U.S. 837, 845-846.) Appellant offers no 161 new or persuasive reason for this Court to deviate from its prior holdings. Norcould thejury have reasonablyorlogically interpreted and applied CALJIC No. 2.15 in the manner appellant proposes — to convict appellant of all of the charged offenses, including the murder, based upon a finding that he possessed stolen property from one of the incidents. (AOB 223-225.) Indeed, the instruction specifically limited its application to the crimes of robbery, home invasion, and carjacking (SCT 1259), thereby excluding the murder, attempted murder, and sexual offenses. | Nor was CALJIC No. 2.15 unsupported by the evidence presented. Relying upon this Court’s decision in People v. Morris (1988) 46 Cal.3d 1, he argues the instruction was improperly given since a factual dispute existed whether he “possessed”. the property taken from the Weir and J.S./E.G. robberies or whether there was property “stolen” from Koen Witters that appellant had ever possessed. (See AOB 225-229.) In Morris, this Court examined a prior version of CALJIC No. 2.15 that is substantially different from the instruction given in this case and observed, “where the evidence relating to ‘possession’ is conflicting or unclear, an unqualified instruction pursuant to CALJIC No. 2.15 should not be given,for it could easily mislead the jury into assuming that the defendant’s possession has been established when,in actuality, the issue is in doubt.” (People v. Morris, supra, 46 Cal.3d at p. 40, italics added.) Theinstruction given to the jury in Morris provided, “The mere fact that a person was in conscious possession of recently stolen property is not enoughto justify his conviction of the crimes charged in the information.[{] Itis, however, a circumstance to be considered in connection with other evidence. To warrant a finding of guilty, there must be proof of other conductor circumstances tending ofthemselvesto establish guilt.” (Ud. at p. 40, fn. 16.) Here, the standard CALJIC No.2.15 instruction directed the jury that it must resolve any factual dispute and find that appellant consciously 162 possessed recently stolen property as a prerequisite to considering the presumption. When and if this factual predicate was resolved against appellant, the jury wastold it could not employ the presumptionunlessit also found corroborating evidence to support his guilt of the offenses. (SCT 1239.) NeitherMorris or its precursor, People v. Rubio (1977) 71 Cal.App.3d 757, 768, controls here. Thus, appellant’s challenges to CALJIC No. 2.15 mustbe rejected. 163 1e ce lNARBASeRNsMePore eySWRSD toes tm i cto ah X. READING CALJIC NO. 17.41.1 AS PART OF THE GUILT-PHASE INSTRUCTIONS DID NOT VIOLATE APPELLANT’S SIXTH AND FOURTEENTH AMENDMENT RIGHTS Appellant contends that CALJIC No.17.41.1 prejudicially violated his federal constitutional rights as guaranteed by the Sixth and Fourteenth Amendments. (AOB 237-244.) It appears appellant’s jury was instructed with a version ofCALJIC No. 17.41.1 as part ofthe guilt-phase instructions. (SCT 1326.3 Appellant did not object to the reading ofthis instructionat his trial. (ORT 3335-3350; see also ORT 3347 [the court describes the instruction as “a newly approved CALJIC instruction”].) Given the absence of an objection, this claim is not preserved for appeal. In any event, the claim lacks merit and must be rejected. Appellant acknowledgesthat this Court rejected his constitutional arguments in People v. Engelman (2002) 28 Cal.4th 436, but he raises the claim to preserve federal review ofthe issue. (AOB 237.) This Court has subsequently considered and rejected similar, if not identical, contentions in the context of a capital case. (See People v. Brown (2004) 33 Cal.4th 382, 393 [instruction given over defense objection]; see also People v. Barnwell (July 26, 2007, S055528) __ Cal.4th _, 2007 Daily Journal D.A.R. 11,385.) Appellant does notcite anything in the appellate record indicating the jurors in his case were improperly influenced by the instruction in their deliberations. Because. 34. The instruction provided,as follows: Theintegrity of a trial requires that jurors, at all times during their deliberations, conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law and decide the case based on penalty or punishmentor any other improperbasis, it is the obligation of the other jurors to immediately advise the Court of the situation. 164 appellant makes no argument warranting reconsideration of the Court’s conclusions in Engelman and Brown,this claim should berejected. 165 XI. THE TRIAL COURT PROPERLY INSTRUCTED THE JURYTHATAPPELLANT COULD BE CONVICTED OF FIRST DEGREE MURDER Appellant contendsthat the trial court violated his constitutional rights underthe federal and state Constitutions byinstructing the jury that he could be convicted of first degree murder if he committed a deliberate and premeditated murderor ifhe committed the murderduring the commission or attempted commission of robbery or burglary. Appellant argues the information specified only second degree malice-murder in violation of section 187; therefore,the trial court lacked jurisdiction to try appellant for first degree murder. Thus, appellant maintainshis conviction forfirst degree murder must be reversed because he was convicted ofan “uncharged crime.” (AOB 245-252.) However, the record showsthat the court properly instructed the jjury on first degree murder. Appellant’ S argument is based on the erroneous premise that the information specified a charge only of second degree murder. This is simply wrong. The information charged appellant as follows: On or about December 9, 1995, in the County of Los Angeles, the crime of MURDER,in violation of Penal Code Section 187(A), a felony, was committed byJOHNLEO CAPISTRANOandMICHAEL EUGENE DREBERTwhodid willfully, unlawfully, and with malice aforethought murder KOEN WITTERS,a human being. (SCT 791.) Contrary to appellant’s assertion, the information clearly and plainly did not refer to second degree murder, but rather charged appellant with malice murder in violation of section 187. This Court has held for nearly a century that if the charging document chargesthe offense in the language of the statute (i.e., § 187), as is the case here, the offense charged includes both 166 degrees ofmurderand the defendant can legally be convicted ofeitherfirst or second degree murder if warranted by the evidence. (See People v. Witt (1915) 170 Cal. 104, 107-108.) In rejecting the claim that the defendant was improperly convicted of first degree murder on a felony murder theory where he was charged in the information only with “malice murder” as defined in section 187, this Court stated in People v. Hughes (2002) 27 Cal.4th 287: In summary, wereject, as contrary to our case law, the premise underlying defendant’s assertion that felonymurder and malice murder are two separate offenses. Accordingly, we also reject defendant’s various claims that because the information charged him only with murder on a malice theory, and the trial court instructed the jury pursuantto both malice and a felony-murdertheory,the generalverdict convicting him offirst degree murder must be reversed. (People v. Hughes, supra, 27 Cal.4th at p. 370.) Thus, appellant’s claim must be rejected since this Court has clearly and definitively spoken on the issue. Appellant’s entire argumentis predicated on the erroneous premisethat this Court’s holding and rationale in Witt was undermined and implicitly overruledby this Court’sdecision in People v. Dillon (1983) 34 Cal.3d 441, a case which held, according to appellant, that “section 189 is the statutory enactment of the felony murder rule in California.” Thus, the argumentis that felony murder and premeditated murders are separate crimes and Dillon effectively overruled Witt’s holding that a defendant can be convicted of felony murder even though he is only charged with malice murder in the information. (AOB 248-251.) Unfortunately for appellant, this Court rejected this identical argumentin Hughes: As the People observe, numerous appellate court decisions have rejected defendant’s jurisdictional argument. We have rejected 167 defendant’s argument that felony murder and murder with malice are separate offenses (Carpenter, supra, 15 Cal.4th at pp. 394-395[it is unnecessary forjurors to agree unanimously on a theory offirst degree murder]; and, subsequent to Dillon, supra, 34 Cal.3d 441, we have reaffirmed the rule of People v. Witt, supra, 170 Cal. 104, that an accusatory pleading charging a defendant with murderneed notspecify the theory ofmurderupon whichthe prosecution intendsto rely. Thus, we implicitly have rejected the argument that felony murder and murder with malice are separate crimesthatmust be pleaded separately. (People v. Hughes, supra, 27 Cal.4th at p. 369.) Finally, it must be noted that appellant’s reliance on Apprendi v. New Jersey (2004) 530 U.S. 466 (AOB 251) is misplaced since, as shown above, appellant was not convicted of an “uncharged crime.” Forall these reasons, this claim fails. 168 XII. APPELLANT’S DEATH ELIGIBILITY DID NOT VIOLATE THE EIGHTH AMENDMENT OR INTERNATIONAL LAW Appellant contends that his death sentence resulted solely from a felony-murder special circumstance rather than a finding he had a culpable state of mind and, therefore, is a disproportionate penalty under the Eighth Amendmentand violates international law. (AOB 253-271.) Heasksthis Court to revisit its prior holdings rejecting his claim and “hold that the death penalty cannot be imposed unless the trier of fact finds that the defendant, whether the actual killer or an accomplice, had an intent to kill or acted with reckless indifference to human life”’ (AOB 263.) Appellant articulates no new or persuasive reasonfor this Court to revisit its prior repeated rejections of his Eighth Amendmentclaim. (People v. Smithey (1999) 20 Cal.4th 936, 1016; People. v. Earp (1999) 20 Cal.4th 826, 905, fn. 15; People v. Musselwhite, supra, 17 Cal.4th at p. 1294.) As for appellant’s claim that California’s use of the death penalty violates international law, particularly, the International Covenant on Civil and Political Rights (““ICCPR”) (AOB 267-268, 270-271), this Court has rejected the contention that the death penalty violates international law, evolving international norms of decency, or the ICCPR. (See People v. Turner (2004) 34 Cal.4th 406, 439-440; People v. Brown, supra, 33 Cal.4th at pp. 403-404; see also People v. Guerra, supra, 37 Cal.4th at p. 1164 [international law does not prohibit a sentence of death rendered in accordance with state and federal constitutional and statutory requirements]; People v. Smith (2005) 35 Cal.4th 334, 375 [same]; People v. Hillhouse, supra, 27 Cal.4th at p. 511 [same].) Appellant’s claim must therefore be rejected. 169 XII. CALJIC NO.2.90, AS GIVEN TO THE JURY. IN THIS CASE, WAS NOT CONSTITUTIONALLY DEFECTIVE Appellant claims that CALJIC No.2.90,2” as read to appellant’s jury, wasconstitutionally defective because it required jurorsto articulate a reason - for doubt in the charges, advised them that “possible doubt”did not equate to “reasonable doubt,” failed to affirmatively instruct that the defense had no obligation to present or refute evidence, failed to explain that appellant’s efforts to refute the prosecution’s evidence did notshift the burden ofproof, did not inform the jury that a conflict in the evidence or a lack of evidence could result in reasonable doubt, failed to inform thejury that the presumption of innocence continues throughout the trial, and improperly described the prosecution’s burden as continuing “until” the contrary was proved. (AOB 272-285.) To the extent appellant argues that CALJIC No. 2.90 was simply inadequate, he has waived the claim. In order to preserve such a claim, appellant was required to bring his complaint to the trial court’s attention. (See People v. Johnson (1993) 6 Cal.4th 1,52.) But, in any event, appellant’s 35. Appellant’s jury was read the following version of CALJIC No. 2.90: A defendant in a criminal action is presumed to be innocentuntil the contrary is proved, andin case ofareasonable doubt whetherhis guilt is satisfactorily shown,heis entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt. . Reasonable doubtis defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to somepossible or imaginary doubt. It is that state of the case which,after the entire comparison and considerationofall the evidence, leaves the minds of the jurors in that condition that they cannotsay they feel an abiding conviction ofthe truth . of the charge. (IORT 3724; 5CT 1274.) 170 claims are meritless because every court which has consideredthis version of CALJIC No. 2.90 has upheld the instruction. (See, e.g., People v. Hearon (1999) 72 Cal.App.4th 1285, 1286-1287 [listing numerouscases rejecting claims against constitutionality of CALJIC No. 2.90].) A. CALJIC No. 2.90 Did Not Require That Jurors Articulate Reasonable Doubt Appellant arguesthat, although thejurors were not expressly instructed that they were required to articulate reason and logic for any reasonable doubt, the instructional language of CALJIC No. 2.90 so implies. (AOB 272-274.) Respondentagrees that ajury is not requiredto articulate doubt. (See People v. Hill (1998) 17 Cal.4th 800, 831-832.) However, CALJIC No. 2.90 cannot reasonably be interpreted to require any articulation of doubt, expressly or impliedly. CALJIC No. 2.90, as discussed in Sections B through G, post, contained a proper definition of reasonable doubt which does absolutely nothing to shift the burden ofproof. B. CALJIC No. 2.90 Correctly Defined Reasonable Doubt Appellant contends that CALJIC No. 2.90 unconstitutionally admonished the jury that a possible doubt is not a reasonable doubt. (AOB 274-277.) This claim has been rejected by both the United States Supreme Court and this Court. In Victor v. Nebraska (1994) 511 U.S.1, the defendant objectedto the language in CALJIC No.2.90 stating that reasonable doubt is “not a mere possible doubt.” The Supreme Court held this language was adequate. (/d. at pp.13, 17.) This Court has also rejected appellant’s claim. In People v. Freeman (1994) 8 Cal.4th 450, this Court revisited the then-existing version of CALJIC No. 2.90, following the federal high court’s decision in Victorv. Nebraska. Based on Victor, this Court recommendedtrial courts delete the 171 “moral certainty’ language from the former CALJIC No.2.90.2" This Court also recommendedthattrial courts use the same definition ofreasonable doubt whichthetrial court used in the instant case. This included the language to which appellant now objects.’ (People v. Freeman, supra, 8 Cal.4th atp. 504, fn. 9.) Indeed, this Court specified that, other than deleting the “moral evidence”and “moral certainty” language from the former CALJIC No.2.90,. no other changes should be made. (Jd. at p. 505.) 36. That version of CALJIC No. 2.90 provided as follows: A defendant in a criminal action is presumed to be innocentuntil the contrary is proved, and in case ofa reasonable doubt whether[his] [her] guilt is satisfactorily shown,[he] [she] is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving [him] [her] guilty beyonda reasonable doubt. Reasonable doubtis defined as follows:It is not a mere ~ possible doubt; because everything relating to human affairs, and depending on moralevidence, is open to somepossible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration ofall the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge. (Emphasis added.) 37. This Courtrecommendedthat CALJIC No. 2.90 be changedto read as follows: [Reasonable doubt] is not a mere possible doubt; because everything relating to humanaffairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration ofall the evidence,leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge. (People v. Freeman, supra, 8 Cal.4th at p. 504, fn. 9.) 172 Hence, CALJIC No. 2.90 properly sets forth the definition of reasonable doubtandis not confusing. Appellant’s claim contradicts rulings by the United States Supreme Court and this Court. The claim must therefore ~ be rejected. C. CALJIC No. 2.90 Adequately Explained The Burden Of Proof In tworelated claims, appellant contends that CALJIC No. 2.90was deficient and misleading becauseit did not state that the defense had no obligation to present or refute evidence or that an attempt by him to refute prosecution evidencedid not shift the burden ofproof. (AOB 277-281, 281- 282.) Respondent submits that CALJIC No. 2.90 clearly advised thejury that the prosecution,not the defense, had “the burden ofproving [appellant] guilty beyond a reasonable doubt” and that the defense had no obligation of presenting evidence. Thefirst paragraph of CALJIC No.2.90 clearly advised the jury that appellant had no obligation to present or refute evidence. It cloaked appellant in the presumption of innocence and squarely placed on the prosecution the burden ofproving otherwise. (See People v. Wright (1988) 45 Cal.3d 1126, 1134 [instruction that defendant need not prove his innocence or another’s guilt properly refused in light of CALJIC No. 2.90]; People v. Martinez (1987) 191 Cal.App.3d 1372, 1378-1379 [CALJIC No.2.90 cautionedjurors that People must prove defendant’s guilt rather than defendant’s having to prove his innocence or guilt of another].) No reasonable juror would have believed that appellant was required to present evidence to establish a reasonable doubt. 173 D. A Modification Setting Forth A Preponderance-of-the-Evidence | Standard Would Have Been Erroneous Appellant appears to contend that CALJIC No. 2.90 was incomplete and misleading becauseit failed to instruct the jury that if the evidenceisin “equipoise, the party with the burden ofproof loses.” (AOB 282-283.) Such a modification to CALJIC No.2.90 would have beeninappropriate. Thejury was properly instructed on the burden ofproof. Hadthe trial court modified CALJIC No. 2.90 in the manner now suggested by appellant, it is likely appellant would now complain of error. (See People v. Anderson (1990) 52 | Cal.3d 453, 472 [prosecutor’s commentthat, ifthe evidenceis tied, the benefit goes to the defendant did not lessen the burden of proofin light of proper instruction pursuant to CALJIC No. 2.90 and defense counsel’s explanation of burden of proof].) E. CALJIC No. 2.90 Informed The Jury That The Presumption Of Innocence Continues Through To A Verdict Appellant also posits that CALJIC No. 2.90 wasdeficient because “it did not assure that the jury would notshift the burden to the defense at some point prior to completing its deliberations.” (AOB 283-284.) Respondent submits that the Court ofAppeal properly acknowledged the scope ofCALJIC No. 2.90 in People v. Goldberg (1984) 161 Cal.App.3d 170: Once an otherwise properly instructedjury is told that the presumption of innocenceobtains until guilt is proven, it is obvious that the jury cannot find the defendant guilty until and unless they, as the fact- finding body, conclude guilt was proven beyond a reasonable doubt. (People v. Goldberg, supra, 161 Cal.App.3d at pp. 189-190.) Since such a conclusion could not be reached prior to deliberation and unanimous agreement, the Goldberg court held CALJIC No. 2.90 effectively preserved the presumption up and until an unanimous agreementis reached. (/d.at p. 174 190.) Respondent submits that the Goldberg court was correct. Nothing in CALJIC No. 2.90 could be construed to permit burdenshifting at some stage of the deliberations before its conclusion. F. Use Of The Term “Until” Did Not Undermine The Prosecution’s Burden Of Proof In a related contention, appellant argues that the portion of CALJIC No. 2.90 which instructed the jury that a defendant “is presumed to be innocent until the contrary is proved” underminedthe prosecution’s burden of proof. He contendsthat the word “until” should be replaced by the word “unless” in orderto indicate that sufficient proof might never be presented. (AOB 284-285.) This Court has rejected this contention. (People v. Lewis (2001) 25 Cal.4th 610, 651-652.) In Lewis, this Court concluded as follows: [There is no reasonable likelihood that the jury in defendant’s case would understandthe instruction to mean that to convict defendant, the state could sustain its burden without proving his guilt beyond a reasonable doubt. Here, the instructionfirst informed the jury that “a defendant in a criminal action is presumed to be innocent until the contrary is proved” and that if there is a reasonable doubtas to his guilt, he must be acquitted. The next sentence stated that the just- described presumption of innocence “places upon the People the burden of proving him guilty beyond a reasonable doubt.” The jury was then provided a definition of reasonable doubt. Contrary to defendant’s argument, there is no reasonable likelihood that the jury understood the disputed language to mean it should view defendant’s guilt as a foregone conclusion. _ (Ud. at p. 652.) Appellant offers no persuasive reason for this Court to depart from its decision in Lewis. 175 2. mms PoacerteitaNy meas ad aN Of th G. Appellant Was Not Prejudiced By The Giving Of The 1994 Revised Version Of CALJIC No. 2.90 _ Underthetotality ofthe instructionsgivenin this case (People v. Snow, supra, 30 Cal.4th at pp. 97-98; People v. Dellinger (1989) 49 Cal.3d 1212, 1222, fn. 2; People v. Burgener (1986) 41 Cal.3d 505, 538), there was no reasonable likelihood the jury misconstrued or misapplied the words of CALJIC No. 2.90. (People v. Clair, supra, 2 Cal.4th at p. 663.) A full and fair reading of the instructions establishes that the jury could not have believed appellant had the burden of establishing his innocence or that the prosecution’s burden of proof was something less than showing appellant’s guilt beyond a reasonable doubt. Appellant’s challenges to CALJIC No. 2.90 musttherefore be rejected. (See People v. Hearon, supra, 72 Cal.App.4th at pp. 1286-1287 [afterlisting the numerouscourts which haverejected similar claims to CALJIC No.2.90, the court determined that the issue is “conclusively settled adversely to defendant’s position” and urged appellate attorneys “to take this frivolous contention off their menus”]. 176 XIV. THERE ARE NO GUILT PHASE ERRORS TO ACCUMULATE Appellant argues that even if no single guilt-phase error acted to | deprive him ofa fair trial, the cumulative effect of the guilt phase errors he identifies in Opening Brief arguments V, VI, VII, VIII, and IX require reversal. (AOB 286-288.) Respondent, however, has shownthat noneof appellant’s contentions have merit. Moreover, appellant has failed to establish prejudice as to any of the claims he raises. Accordingly, his claim of cumulative error must be rejected. (People v. Lewis, supra, 25 Cal.4th at p..635; People v. Staten (2000) 24 Cal.4th 464.) 177 XV. A REVERSAL AS TO ANY INDIVIDUAL COUNT OR SPECIAL CIRCUMSTANCE DOES NOT WARRANT A PENALTY PHASE RETRIAL Appellant claimsthat, should this Court reverse any countor special circumstance, the Court must vacate the deathjudgment and remandthe cause for a new penalty trial. A reversal of any ofthe chargesor allegations, argues appellant, “would significantly alter the landscape the jury was considering when making its determination to assess death.” Failure to conduct a new penalty phase under such circumstances, he reasons, would violate the Eighth Amendmentto the United States Constitution, as well as article I, section 17 of the California Constitution. (AOB 289-290.) The claim lacks merit. First, appellant has notdemonstrated in the instant appeal that there is any basis for this Court to set aside any conviction on any countor to reverse the true finding on the burglary-murder or robbery-murder special circumstances. Indeed, appellant does not even challenge the sufficiency of the evidence underlying any of the counts, special circumstances, or other ‘enhancing allegations on appeal. Second, contrary to appellant’s claim, assuming arguendo this Court reverses one of the convictions, any such reversal would, given the overwhelming evidencepresented at the penalty phase, not warrant reversal of the penalty determination. Appellant does not argue the penalty evidence was weakor insubstantial and, therefore, does not dispute this fact. Rather, appellant maintains that a harmless-error analysis at the penalty phase is | inappropriate. He is wrong. Theinvalidation of a conviction or special circumstanceis not prejudicial per se, but subject to harmless-error analysis. (Clemons v. Mississippi (1990) 494 U.S. 738, 745-750; Zant v. Stephens (1983) 462 U.S. 862, 890-891[fact that one aggravating factor may be found invalid does not mean death penalty may not stand wherethere are othervalid 178 aggravating factors]; People v. Hilthouse, supra, 27 Cal.4th at p. 512 [invalid conviction for kidnaping for robbery, felony-murder theory, and felony- murder special circumstance did not.require reversal of penalty]; People v. Roberts (1992) 2 Cal.4th 271, 327 [appellate court examines whetherthereis | a reasonable possibility that the jury would have recommendeda sentence of life without the possibility ofparole]; People v. Mickey (1991) 54 Cal.3d 612, 703 [subject to harmless-error analysis].) Moreover, a retrial of the penalty phase is not precluded under the United States Supreme Court decisions in Ring v. Arizona (2002) 536 U.S. 584, and Apprendi v. New Jersey, supra, 530 U.S. at p. 466, as appellant maintains. (See AOB 290.) This Court has held that “[Apprendi and Ring] have noapplication to the penalty phase procedures ofthis state” (Peoplev. Prieto, supra, 30 Cal.4th at pp. 262-264, 271-272, 275; People v. Nakahara, supra, 30 Cal.4th at pp. 721-722) and “Ring does not apply to California penalty phase proceedings”(People v. Prieto, supra, at pp. 262-263)22/ 38. Silva v. Woodford (9th Cir. 2002) 279 F.3d 825, 849, does not stand for the proposition that reversal as to any countor special circumstancefinding results in an automatic penalty phaseretrial. (See AOB 290.) In Silva, the federal court determinedtrial counsel’s ineffective performance wasprejudicial where counsel had not investigated and presented mitigating evidence of family history and substance abuse at the penalty phase, the jury had asked questions about life without parole, three of four special circumstances found by the jury were subsequently invalidated by this Court, and an accomplice who was also convicted of two murders was sentencedto life without parole. (/d. at pp. 847-850.) 179 XVI. APPELLANT’S UPPER TERM SENTENCES ON COUNTS4 AND 9 SHOULD BE UPHELD Appellant, referencing the Supreme Court’s decisions in Blakely v. Washington (2004) 542 U.S. 296, and Apprendi v. New Jersey, supra, 530 U.S.at p. 466, contendsthe trial court denied his federal constitutional rights to due process and trial by jury by imposing upper term and consecutive sentences on the non-capital counts. (AOB 291-296.)Althoughthetrial court initially selected upper termsfor Counts 2, 3,4, 5, 6, 7, 8, 10, 12, 13, 14, and 16 (12RT 4296-4298), the court imposed upper-terms as to two counts only — Count 4 (principal term and enhancement) and thefirearm enhancementlinked to Count 9. Becausethetrial court based the upper term sentence on Count 4 on appellant’s recidivism, his challenge as to that count fails. Moreover,the trial courtpermanently stayed the sentencesonall other counts pending execution of the death sentence for the Koen Witters murder as found in Count 1. (See 12RT 4302.) In light of the permanentstay imposed, so long as appellant’s death judgment remains in place there is absolutely no risk that appellant will be exposed to a sentence on Count 4 or Count 9 that exceeds the statutory maximum punishment. (Compare People v. Osband, supra, 13 Cal.4th at pp. 622, 710 [‘There is no risk of multiple punishments, because when the sentence for murderis carried out there will be no further punishment.”].) Finally, because the upper-term enhancement imposed as to Count 9 was harmless beyond a reasonable doubt, appellant’s challenge to that claim alsofails. 39. Appellant’s Opening Briefwasfiled prior to the high court’s decision in Cunningham vy. California (2007) —s—~US.___—([127 S.Ct. 856]. 180 A. Relevant Sentencing Proceedings Althoughthetrial court initially selected upper terms for Counts2, 3, 4,5, 6, 7, 8, 10, 12, 13, 14, and 16 (12RT 4296-4298; 6CT 1492-1497), the . court imposed imposed upper-term sentencesin relation to two counts only — Count 4 and Count 9, . As to Count 9, appellant was sentenced to a term of 25 years to life pursuantto section 667.61, subdivision (a)(e) (12RT 4294)plusanupper-term section 12022.5, subdivision (a) firearm-use enhancement (12RT 4295). In light of the court’s finding that consecutive sentences were warranted for Counts 4, 5, 10, 12, 13, 14 and 16, the court selected Count 4 as the principal term and imposed the upperterm ofnine years for the robbery in concert plus a 10-year upper term for the section 12022.5 enhancement. (12RT 4296, 4299; 6CT 1505-1506.) The court recalculated the sentences on Counts 5, 10, 12, 13, 14 and 16 pursuantto section 1170.1, subdivision (a) to be one-third of the mid-term foreach ofthose counts and ordered that those sentences run consecutive to the sentence imposed on Count4. (12RT 4299-4301; 6CT 1503-1505.) In sentencing appellant to the upper-term firearm enhancementrelating to Count9,the trial court stated the reasonsforits selection, as follows: “I am selecting the upper-term because,in my view, after considering the evidence, your use ofthis firearm was planned and premeditated, and the mannerin which you choseto use this firearm showed a high degree of viciousness, callousness and cruelty.” (12RT 4295.) 40. Thetrial court stayed the sentences as to Counts 2 and 3 pursuant to section 654 (12RT 4301; 6CT 1499) and imposed concurrent termsasto’ Counts 6, 7, and 8 (12RT 4301; 6CT 1501-1502). . 181 caseinte tndee STIR ener seS ERO E AR aintatin pavets wear AanA ceNeRN eteRaganAASMAESENRNRAOSEMR B Before selecting Count 4 as the principal determinate term,thetrial court made the following statement of reasons for selecting upper term sentences onall of the counts: Let me indicate for the record that as to each of those crimes, the high-term has been selected because each crime was,in the court’s view, planned and premeditated. Each of the victims wasparticularly vulnerable, and they were surprised and outnumbered by you and by your associates. They were imprisoned, essentially, in their own homes. They were bound, and in some cases, gagged. Further, that you occupied a position of leadership, that you induced minors to participate in each of these crimes, that you have served atleast one prior prison term, and that you were on parole from the state prison at the time that these crimes were committed. . (12RT 4298-4299.) Concerningall of the firearm enhancements imposed,thetrial court made the following statement of reasons: Asto each ofthe firearm use allegations, the court has selected the high-term because,as previously indicated, the use ofthe firearm was planned and premeditated, and the mannerofeach use wasindicative of a high degree of cruelty, viciousness andcallousness. (12RT 4299.) B. The Cunningham Decision In Cunningham, the United States Supreme Court held that California’s procedure for selecting upper terms violated the defendant’s Sixth and Fourteenth Amendmentright to jury trial because it gave “to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated ‘upper term’ sentence.” (Cunningham, supra, 127 S.Ct. at p. 860.) The Court explained that “the Federal Constitution's jury-trial guarantee 182 proscribes a sentencing schemethat allows a judge to impose a sentence abovethe statutory maximum based ona fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (/bid.) C. The Upper Term On. Count 4 Was Constitutional Based On_ Appellant’s Criminal History An upperterm sentence based onat least one aggravating circumstance complying with Cunningham “renders a defendanteligible for the upper term sentence,”so that “any additional fact finding engagedin bythe trial court in selecting the appropriate sentence amongthe three available options does not violate the defendant’s right to jury trial.” (People v. Black (Jul. 19, 2007, ~$126182)__Cal.4th ___ [2007 WL 2080875, p.* 6.] (Black IN.) An aggravating circumstance accords with Cunningham if it was based on the ~ defendant’s criminal history. (Black IT, supra, 2007 WL 2080875,at pp.* 9- 10.) This “exception” for a defendant’s “[rJecidivism” must not be read “too narrowly” and encompasses“notonlythe fact that aprior conviction occurred, but also other related issues that may be determined by examiningthe records of the prior convictions.” (/d. at pp.* 10-12 [trial court’s finding that prior convictions were numerous or of increasing seriousness falls within the exception]; People v. Thomas (2001) 91 Cal.App.4th 212, 220-223 [trial court’s finding that the defendanthadserveda prior prison term falls within the exception], cited with approvalin Black II, supra, 2007 WL 2080875,at p.* 11.) In imposing the upper term as to Count4,the trial court relied on appellant’scriminal history, finding that appellant “ha[d] served at least one prior prison term, and that [he was] on parole from thestate prison at the time that these crimes were committed.” (12RT 4296, 4299.) This reliance was permissible under Cunningham and rendered appellanteligible for the upper term on Count 4. Under these circumstances, the trial court’s reliance on 183 additional aggravating circumstancefindings did not violate appellant’s right - to jury trial under Cunningham. D. Any Cunningham Error Was Harmless An appellate court properly finds Cunningham error harmless ifit “concludes, beyond a reasonable doubt, that the jury, applying the beyond-a- reasonable doubt standard, unquestionably would have foundtrueat least a single aggravating circumstance had it been submitted to the jury... .” (People v. Sandoval (Jul. 19, 2007, 8148917) —s- Cal.4th [2007 WL 2050897, p.* 6].) | Concerning the upper-term imposed on Count 4, a jury would have unquestionably concluded that appellant had served a prior prison term and wason paroleat the time ofthe current offenses. (See 6CT 1589 [probation report].) Concerning the upper term imposed for the firearm enhancements as to Count 4 (robbery) and Count 9 (forcible rape), appellant’s use of the firearm was most certainly “planned and premeditated” (see Cal. Rules of Court, rule 4.421(a)(8)) as found by the trial court. Indeed, all of the participants were armed with guns, pressed them against the heads ofJ.S. and _E.G.,while threatening them, andtaunted them with the weapons, Had ajury been asked to makethis determination,it “unquestionably would have found true at least a single aggravating circumstance.” (People v. Sandoval, supra, __Cal.4th [2007 WL 2050897, p.* 6].) Because the jury would have foundtrue at least one ofthese facts beyond a reasonable doubt had they been presentedat appellant’s trial, any Cunningham error harmless. Accordingly, this Court should reject appellant’s contention. 184 XVII. THE TRIAL COURT PROPERLY IMPOSED CONSECUTIVE SENTENCES FOR APPELLANT’S CARJACKING CONVICTIONS IN COUNTS10 AND 14 At sentencing, consecutive mid-term sentences were imposed for the carjacking convictions charged in Count 10 (J.S. and E.G.) and Count 14 (Weir). Appellant contends that the sentences on Count 10 and Count 14 must be stayed pursuant to section 654 because he also received consecutive sentences for the home invasion robberies convictions in Count 4, Count5, and Count 12, (AOB 297-298.) Asthis Court observed in People v. Osband, supra, 13 Cal.4th at p. 622, because the trial court permanently stayed the sentences on Count 10 and Count 14— and the other determinate and indeterminate sentences — pending execution of the death sentence for the Koen Witters murder, “There is no risk of multiple punishments, because when the sentence for murder is carried out there will be no further punishment.” (/d. at p. 710.) Thus, should this Court affirm appellant’s conviction and penaltyjudgment,it should conclude there wasnoerror under section 654. In any event, because the jury verdicts necessarily included a finding that the homeinvasion robbery and carjacking offenses occurred at different times and places, the trial court’s implicit finding that the crimes were not part of an indivisible transaction was supported by substantial evidence and should be upheld on appeal. A. Relevant Sentencing Proceedings At the sentencing hearing, defense counsel argued that the carjacking convictions in Counts 10 and 14 were premised upon the taking of car keys from the victims and were part of the robberies committed against those victims. (12RT 4280-4281.) The prosecutor responded that the carjackings were complete when the victims were led away from their cars. In contrast, 185 the robbery charges were based upon additional takings that occurred after the victims were taken into their homes. (12RT 4284-4285.) In ultimately ruling on this question,thetrial court made the following factual determination: With respect to the carjacking counts, however, [defense counsel], — I think I agree with [the prosecutor]’s analysis. It was the separation ofthe victims from their vehicles at the outset that constitutes the carjacking, and that crime wasessentially complete prior to the entry [into] the residence ofthe Weirs and [J.S.] and [J.G.] . (12RT 4289.) Appellant received consecutive mid-term sentences for the crimes charged in Count 10 (three years, including the firearm enhancement) and Count 14 (20 months). (12RT 4299-4301.) B. Legal Analysis Section 654 provides,in relevant part, “An act or omission which is made punishable in different ways by different provisions ofthis code may be punished undereither of such provisions, but in no case can it be punished under more than one.” The purpose of section 654 “is to insure that defendant’s punishment will be commensurate with his criminalliability.” (Nealv. State ofCalifornia(1960) 55 Cal.2d 11, 20-21.) ““Whether a course of criminal conductis divisible and therefore gives rise to more than oneact within the meaning ofsection 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punishedfor any oneofsuch offenses but not for more than one.’” (People v. Latimer (1993) 5 Cal.4th 1203, 1208; see, e.g., People v. Beamon (1973) 8 Cal.3d 625, 637 [defendant intended to kill his victims and arson merely a means to accomplish it|.) Whether a defendant maintained multiple criminal objectives is primarily a question offactforthe trial court, whose findingwill be upheld onappealif there is substantial evidence to support it. (People v. 186 Osband, supra, 13 Cal.4th at p. 710; People v. Coleman (1989) 48 Cal.3d 112, 162.) Where a defendant commits offenses that were independent ofand not merely incidentalto each other, the defendant may be punishedseparately even though the offenses shared commonacts or were part of an otherwise indivisible course of conduct. (People v. Hicks (1993) 6 Cal.4th 784, 789; People v. Beamon, supra, 8 Cal.3d at p. 639.) In reviewing the factual determinations of the sentencing court, this Court views the evidence in the light most favorable to the judgment and presumesin support of the judgmentthe existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. McGuire (1993) 14 Cal.App.4th 687, 698.) Appellant relies upon People v. Dominguez (1995) 38 Cal.App.4th 410, and its observation that “the theft of several articles at the same time constitutes but one offense”to argue that section 654 precluded punishment on Count 10 and Count 14. (AOB 298.) In Dominguez, the defendant was convicted of robbery and carjacking. Thetrial court concluded that section 654 applied but imposed a concurrent sentence for the carjacking rather than staying the sentence. (/d. at pp. 419-420.) On appeal, the issue was whether the sentencing court should have stayed the sentence rather than imposing a concurrent term. The reviewing court relied uponthetrial court’s ruling that section 654 applied and observed that the robber’s demand, “Give me everything you have,” when viewed in combination with the victim’s handing over his rings and simultaneously fleeing his van, indicated that the robbery and carjacking constituted one simultaneousact. (/d. at p. 420.) In this case, appellant was not charged with mere robbery and carjacking for the Weir and E.G,/J.S. incidents. Rather, it was alleged the robberies were conducted in concert inside an inhabited dwelling house. (3CT 793.) Thejury wasinstructed on the additional elementsfor a violation 187 of section 213(a)(1)(A) (see SCT 1296), and the jury foundin its verdicts that the robberies charged in Count4 (J.S.), Count 5 (E.G.), and Count 12 (Ruth Weir) were “committed by the defendants who voluntarily acted in concert and entered a structure pursuant to Section 213(a)(1)(A)” (SCT 1339, 1340, 1346). This Court has previously held that a criminal defendant may be convicted of both simple robbery and carjacking for the same conduct but cannot be punished for both offenses when they constitute the sameact. (People v. Ortega (1998) 19 Cal.4th 686, 700.) After appellant’s trial and sentencing, this Court held in People v. Lopez (2003) 31 Cal.4th 1051, that a completed carjacking requires movement of the motor vehicle. (/d. at pp. 1062-1063.) Asa result ofthis Court’s holding in Lopez,it appearsthat, had the perpetrators not eventually moved the motor vehicles, the carjacking convictions charged in Count 10 and Count 14 could not be sustained on appeal. Nevertheless, the trial court correctly reasoned that a new transaction began for section 654 purposes onceappellant changedlocations and took the victims into their homes and forcibly took property within the residence while acting in concert with two other perpetrators. Given the jury’s findings, aeappellant’s “robbery” conviction did not punish him for taking any personal property located outside of the victims’ residences. Therefore, appellant did not receive multiple punishmentfor the same act. In People v. Green, supra, 50 Cal.App.4th at p. 1076, the court concludedsection 654 did not prohibit punishmentforboth the carjacking and robbery convictions. In that case, two men approached the victim in her car and demandedherpurse. After she relinquishedthat item, one ofthe men got in the car and drove the victim to a secluded location, where he sexually assaulted the victim. Thereafter, he drove away in the victim’s car. The 188 appellate court concluded that the separation in time and place between the initial robbery of the purse and the ultimate forcible taking of the vehicle supportedthetrial court’s “finding the taking ofthe purse and the taking of the vehicle were separate incidents.” (/d. at p. 1085.) Here, the carjacking and home invasion robbery offenses were separated temporally and by location as in Green. J.S. and E.G., while inside their detached garage, were forcibly separated from their car at gunpointafter they returned home. (8RT 3003.) Similarly, Ruth Weir was forcibly separated from her car as she was returningto her detachedgarageto retrieve groceries from it. (8RT 8057-3063.) Indeed, concerning Ruth Weir (Count 14), her car was the only personal property taken from a location outside of her house; a deminimus amountofproperty (wallet) was taken from E.G. and - J.S. while they were outside their home. Given the way the robbery offenses were charged and foundtrue by the jury, the robbery offenses did not begin until the perpetrators entered the victims’ residences. Given these circumstances, the trial court’s conclusion that section 654 did not prohibit punishmentfor both the homeinvasion robberies (Counts 4, 5 and 12) and the carjackings: offenses (Counts 10 and 14) was supported by substantial evidence and should beaffirmed. 189 XVIII. THE ABSTRACT OF JUDGMENT SHOULD BE CORRECTED TO REFLECT A CONSECUTIVE SENTENCE OF LIFE WITH THE POSSIBILITY OF PAROLEAS TO COUNT15 As appellant notes (AOB 299),thetrial court orally sentenced appellant on count 15 (attempted premeditated murder of Michael Martinez)to life in prison with the possibility of parole in accordance with section 664, subdivision (a) and ordered that the sentence on count 15 be served consecutive to the sentence imposed as to count 9. (12RT 4295-4296.) However, the abstract of judgment incorrectly reflects a sentence oflife without the possibility of parole. (6CT 1539.) This Court should exercise its power to correct this clerical error on appeal. (People v. Mitchell (2001) 26 Cal.4th 181, 185; In re Candelario (1970) 3 Cal.3d 702, 705.) 190 XIX. THE TRIAL COURT WAS NOT REQUIRED TO INSTRUCT THE JURY AS TO THE BURDEN OF PROOF AT THE PENALTY PHASE Next, appellant contends that the death penalty statute and the correspondinginstructions given in the instant case failed to assign a burden of proof with regard to the jury’s choice between the sentences of death and life without the possibility ofparole. (AOB 300-333.) Specifically, appellant raises the following claims: (1) the death penalty statute and instructions unconstitutionally failed to assign to the State the burden of proving beyond a reasonable doubtthe existence ofan aggravating factor, that the aggravating factors outweigh the mitigating factors, and that death is the appropriate penalty (AOB 301-314); (2) the state and federal Constitutions requirethat the penalty jury be instructed that they may imposea sentence of death only if they are persuaded beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors and that death is the appropriate penalty(AOB ~ 314-319); (3) the Sixth, Eighth, and Fourteenth Amendments to the federal Constitution require that the State bear some burden of persuasion at the penalty phase (AOB 320-324); (4) the instructions violated the Sixth, Eighth, and Fourteenth Amendments by failing ‘to require juror unanimity on aggravating factors (AOB 324-330); (5) the penalty jury should have been instructed on the absence of the need for unanimity on mitigating factors (AOB 330-332); and (6) the penalty jury should have beeninstructed on the presumptionthatlife withoutthe possibility ofparole was the proper sentence (AOB 332-333). These claims are meritless. This Court has specifically and repeatedly rejected each of the foregoing arguments and appellant has not presented this Court any new, persuasive, or compelling reason to reconsider its prior decisions. For example, this Court has held that the sentencing function at the penalty phase 191 is not susceptible to a burden-of-proof qualification. (People v. Manriquez, supra, 37 Cal.4th at p. 589; People v. Burgener (2003) 29 Cal.4th 833, 885; People v. Anderson, supra, 25 Cal.Ath at p. 601; People v. Hawthorne (1992) 4 Cal.4th 43, 79.) Also, there is no requirement that the penalty jury be instructed concerning burden ofproof— whether beyond a reasonable doubt or by preponderance of the evidence — as to existence of aggravating circumstances (other than other-crimes evidence), greater weight of aggravating circumstances over mitigating circumstances, or appropriateness of death sentence. Thereis also no requirementthat the penalty jury achieve unanimity as to the aggravating circumstances (People v. Samuels (2005) 36 Cal.4th 96, 137) andthere is no basis for a claim that the penaltyjury must be - instructed on the absenceofa burden ofproof (People v. Cornwell (2005) 37 Cal.4th 50, 104). A trial court’s failureto instruct that the reasonable doubt standard does not apply to mitigating factors does not violate a defendant’s criminalrights, and neither doesa failure to instruct that the jury needs to unanimously agree on such factors. (People v. Panah (2005) 35 Cal.4th 395, 499; see also People v. Jablonski (2006) 37 Cal.4th 774, 873; People v. Sapp, supra, 31 Cal.4th at p. 316.) Moreover, the absence of a requirementthat the jury find death as the appropriate penalty beyond a reasonable doubt does not render the death penalty statute unconstitutional. (People v. Jablonski, supra, 37 Cal.4th at p. 873; People v. Stitely, supra, 35 Cal.4th at p. 573.) And, no presumption exists in favor of either death or life imprisonment without the possibility ofparole in determining the appropriate penalty, and thus such an instruction would have been improper. (People v. Maury, supra, 30 Cal.4th at p. 440; People v. San Nicolas (2004) 34 Cal.4th 614, 662-667; People v. Kipp, supra, 26 Cal.4th at p. 1137; People v. Arias, supra, 13 Cal.4th at p. 190.) . 192 Finally, contrary to appellant’s assertion (see AOB 302-314), nothing in Apprendi v. New Jersey, supra, 530 U.S. 466, Ring v. Arizona, supra, 536 U.S. 584, or Blakely v. Washington, supra, 542 U.S. 296, impacts this Court’s holdings that the sentencing functionatthe penalty phaseis not susceptible to a burden-of-proof quantification. This Court has expressly rejected the argument thatApprendi, Ring, and/orBlakely affect California’s death penalty law or otherwise justifies reconsideration of this Court’s prior decisions on this point. (People v. Ward (2005) 36 Cal.4th 186, 221; People v. Morrison (2004) 34 Cal.4th 698, 730-731; People v. Prieto, supra, 30 Cal.4th at pp. 262-263; People v. Snow, supra, 30 Cal.4th at p. 126, fn. 32; People v. Smith, supra, 30 Cal.4th at p. 642.) Accordingly, appellant’s claims mustbe rejected. 193 XX. CALJIC NO. 8.88, AS GIVEN TO THE JURY IN THIS CASE, PROPERLY DEFINED THE JURY’S SENTENCING DISCRETION Appellantraises a variety ofchallenges to CALJIC No.8.88, claiming that it inadequately defined the jury’s sentencing discretion and the nature of its deliberations and violated his constitutional rights to a fair jury trial, a reliable penalty determination, and due process as guaranteed bythe Sixth, Fighth and Fourteenth Amendments to the federal Constitution and the corresponding provisions of the California Constitution. (AOB 334-345.) This Court has explained that the standard CALJIC penalty phaseinstructions ““are adequate to inform the jurors of their sentencing responsibilities in compliance with federal and state constitutional standards.’” (People v. Gurule (2002) 28 Cal.4th 557, 659, quoting People vy. Barnett (1998) 17 Cal.4th 1044, 1176-1177; see also People v. Rodrigues, supra, 8 Cal.4th at p. 1192; People v. Tuilaepa (1992) 4 Cal.4th 569, 593; People v. Raley (1992) 2 Cal.4th 870, 919-920.) As with his previousinstructional claims, appellant offers no persuasive reason for this Court to reconsider these claims. First, appellant takes issue with the use of the terms “substantial” and “warrants” in a single sentence of CALJIC No.8.88: “To return a judgment of death, each of you must be persuadedthat the aggravating circumstances are so substantial in comparison with the mitigating circumstances. that it warrants death instead oflife without parole.” (12RT 4260-4262; 6CT 1434- 1435 [CALJIC No. 8.88].) Appellant argues the term “substantial” creates a standard too vague and ambiguousto provide constitutional guidance (AOB 335-338). The Court has rejected these claims. (People v. Prieto, supra, 30 Cal.4th at p. 273, and People v. Boyette, supra, 29 Cal.4th at p. 465.) Appellant’s assertion that the instruction fails to make clear the standard of appropriateness for imposition of the death penalty becauseit contains the 194 word “warrants” (AOB 338-340) has also been squarely rejected. (SeePeople v. Boyette (2002) 29 Cal.4th 381, 465; People v. Breaux (1991) 29 Cal.4th 381, 465.) : Similarly, appellant’s contentions that the trial court was constitutionally compelled to instruct the jury that it shall impose a sentence oflife withoutparoleifit finds that the mitigating circumstances outweigh the aggravating circumstances, and that CALJIC No. 8.88 reduced the prosecution’s burden ofproofrequired by section 190.3, have been rejected. (See People v. Gurule, supra, 28 Cal.4th at p. 662.) Appellant further argues that the omission of the languageofsection 190.3, that if the mitigating circumstances outweigh the aggravating circumstances”thejury “shall impose”a sentence ofconfinementin thestate prison for life without the possibility of parole reduced the prosecution’s burden of proof required by section 190.3. (AOB 341-344.) These claims have been rejected. (See People v. Gurule, supra , 28 Cal.4th at p. 662.) Finally, noting that neither party bore the burden to persuade the jury concerning the appropriate penalty, appellant argues that CALJIC No. 8.88 was deficient because it failed to inform the jurors that he did not have to persuade the jurors that death was an inappropriate penalty. (AOB 345.) There is no basis for a claim that the penalty jury must be instructed on the absence of a burden of proof. (People v. Cornwell, supra, 37 Cal.4th at p. 104.) In this case, CALJIC Nos. 8.85 and 8.88 fully and accurately conveyed to the jurors the applicable law governing their task in the penalty phase. CALJIC No. 8.84.1 instructed the jury that it must neither be influenced by bias nor prejudice against appellant, nor swayed by public opinion or public feelings. (SCT 1396.) CALJIC No.8.85 enumerated the factors thejury were to consider in reaching its decision regarding penalty. (6CT 1413-1414.) 195 CALJIC No.8.88 expressly instructed the jury to “consider, take into account and be guided by the applicable factors of aggravating and mitigating circumstances,” and further cautioned the jury not to engage in a “mere mechanical counting of factors.” (6CT 1434-1435.) These instructions adequately informed the jurors of their sentencing responsibilities. (People v. Gurule, supra, 28 Cal.4th at p. 659; People v. Barnett, supra, 17 Cal.4th at pp. 1176-1177; People v. Rodrigues, supra, 8 Cal.4th at p. 1192; People v. Tuilaepa, supra, 4 Cal.4th at p. 593; People v. Raley, supra, 2 Cal.4th at pp. 919-920.) Norwasthere any needto specially instructthejury on the appropriate process of weighing mitigating factors. In this regard, CALJIC No. 8.88 properly advised the jury that “[t]o return a judgment of death, each of you must be persuaded that the aggravating circumstances are so substantial in comparison with the mitigating circumstances that it warrants death instead of life without parole.” (6CT 1434-1435.) CALJIC No. 8.88 properly ‘described the weighing process as “‘merely a metaphor for the juror’s personal determination that death is the appropriate penalty underall the 399circumstances.’” (People v. Jackson, supra, 13 Cal.4th at p. 1244, quoting People v. Johnson (1992) 3 Cal.4th 1183, 1250; see also People v. Gutierrez (2002) 28 Cal.4th 1083, 1161.) 196 XXI. INTERCASE PROPORTIONALITY REVIEW IS NOT REQUIRED BY THE FEDERAL OR CALIFORNIA CONSTITUTIONS Appellant also contends that the absence of intercase proportionality review from California’s death penalty law violates his Eighth and Fourteenth Amendmentright to be protected from the arbitrary and capricious imposition of capital punishment. (AOB 346-350.) this claim lacks merit. Neither the federal nor state Constitutions require intercase proportionality review. (People v. Jablonski, supra, 37 Cal.4th at p. 837; People v. Panah, supra, 35 Cal.4th at p. 500; People v. Kipp, supra, 26 Cal.4th at p. 1139.) The United States Supreme Court hasheld that intercase proportionality review is not constitutionally required in California (Pulley v. Harris (1984) 465 U.S. 37, 51-54) and this Court has consistently declined to undertake it as a constitutional requirement (People v. Jablonski, supra, 37 Cal.4th at p. 837; People v. Panah, supra, 35 Cal.4th at p. 500; People v. Welch (1999) 20 Cal.4th 701, 772; People v. Majors (1998) 18 Cal.4th 385, 432; People v. Crittenden, supra, 9 Cal.4th at pp. 156-157). Appellant’s claim is thus meritless. 197 XXII, ' APPELLANT’S SENTENCE DOES NOT VIOLATE INTERNATIONAL LAW AND/OR THE EIGHTH AMENDMENT Appellant contends California’s use of the death penalty violates international law, the Eighth Amendment, and evolving standards ofdecency. (AOB 351-356.) In People v. Boyer (2006) 38 Cal.4th 412, 489, this Court squarely rejected this claim,stating that the Court has “consistently held that international law does not prohibit a death sentence rendered in accordance with state and federal constitutional and statutory requirements.” (See also People v. Hinton (2006) 37 Cal.4th 839, 913; People v. Smith, supra, 35 Cal.4th at p. 375; People v. Jenkins, supra, 22 Cal.4th at p. 1055; People v. Hillhouse, supra, 27 Cal.4th at p. 511; People v.Fairbank (1997) 16 Cal.4th 1223, 1225 [death penalty not cruel and unusual punishmentin violation of the Eighth Amendment]; People v. Samayoa (1997) 15 Cal.4th 795, 864-865 [same]; People v. Ghent (1987) 43 Cal.3d 739, 778-779 [the use ofthe death penalty as a regular form of punishment does notfall short of international norms of humanity and decency, and does not violate the Eighth Amendment].) Because appellant has raised no novel question of fact or law that might require this Court to revisit its position on written penalty phase findings, it should reject the contention once again. 198 XXIII. WRITTEN FINDINGS REGARDING FACTORS IN AGGRAVATION AND MITIGATION WERE NOT REQUIRED Appellant contends the failure of California law to require written findings regarding the aggravating factors violates appellant’s constitutional rights to due process, meaningful appellate review, and equal protection ofthe law as guaranteed bythe Fifth, Sixth, Eighth, and Fourteenth Amendments. (AOB 357-358.) Respondent submits no such findings were required. Initially, respondent submits this contention has been waived. Appellant never presented his constitutional arguments below and, accordingly, has waived the issue on appeal. (People v. Saunders (1993) 5 Cal.4th 580, 589-590.) Regardless, there exists no reason to grant relief on the waived claim. “Written findings by the penalty phase trier of fact are not constitutionally required.” (People v. Lewis, supra, 25 Cal.4th at p. 677; see also People v. ‘Boyer, supra, 38 Cal.4th at p. 485; People v. Hinton, supra, 37 Cal.4th at p. 913; People v. Prieto, supra, 30 Cal.4th at p. 275; People v. Snow, supra, 30 Cal.4th at p. 127; People v. Gutierrez, supra, 28 Cal.4th at pp. 1150-1151: People v. Lucero (2000) 23 Cal.4th 692, 741; People v. Kraft (2000) 23 Cal.4th978, 1078; People v. Rodriguez, supra, 42 Cal.3d at pp. 777-779; see People v. Frierson (1979) 25 Cal.3d 142, 178-179 [rejecting claim that Gregg v. Georgia (1976) 428 U.S. 153 mandates jury make written findings].) | Appellant has offered no authority on this question that did not exist on many past occasionsin which this Court has entertained the instant claim. Because appellant has raised no novel question of fact or law that might require this Court to revisit its position on written penalty phase findings,it should reject the contention once again. 199 sae 1 SeainhMEEGAASehhEeeatenaHAE He CONCLUSION Based on the foregoing reasoning and authority, respondent respectfully urges this Court to exercise its power on appeal to correct the clerical error in the Abstract ofJudgment concerning Count15 and otherwise affirm appellant’s convictions, his prison sentences, and his condemnation to death. Dated: August 16, 2007 Respectfully submitted, EDMUNDG. BROWN JR. Attorney General of the State of California Dane R.Gillette Chief Assistant Attorney General PAMELA C, HAMANAKA Senior Assistant Attorney General JOHN R. GOREY Deputy Attorney General MARGARET E. MAXWELL Supervising Deputy Attorney General Attorneys for Respondent MEM:inf LA1998XS0007 50180802.wpd 200 CERTIFICATE OF COMPLIANCE 1 certify that the attached RESPONDENT’S BRIEFusesa 13 point Times New Romanfont and contains 56933 words. Dated: August 16, 2007 Respectfully submitted, EDMUNDG. BROWN JR. Attorney General of the State of California MARGARET E. MAXWELL Supervising Deputy Attorney General Attorneys for Respondent 201 DECLARATION OF SERVICE BY U.S. MAIL Case Name: People v. Capistrano Case No.: S067394 (Capital Case) I declare: I am employedin 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 of age and older and nota party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplacedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business. On August 16, 2007, 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 300 South Spring Street, Suite 1702, Los Angeles, CA 90013, addressed as follows: SEE ATTACHED SERVICE LIST I declare under penalty of perjury under the lawsof the State of California the foregoing is true and correct and that this declaration was executed on August 16, 2007, at Los Angeles, California. Nora Fung Declarant ee MEM:nf LA1998XS2007 60234904.wpd Case Name: People v. Capistrano Case No.: $067394 (Capital Case) RESPONDENT?’S BRIEF SERVICE LIST Kathleen M. Scheidel Assistant State Public Defender State Public Defender’s Office - San Francisco 221 Main St., Suite 1000 San Francisco, CA 94105 (two copies ) Addie Lovelace Death Penalty Appeals Clerk Los Angeles County Superior Court Clara Shortridge Foltz Criminal Justice Center 210 West.Temple Street, Room M-3 Los Angeles, CA 90012 Michael G. Millman Executive Director _ California Appellate Project (SF) 101 SecondStreet, Suite 600 San Francisco, CA 94105 John A. Clarke, Clerk of the Court Los Angeles County Superior Court 111 N. Hill Street Los Angeles, CA 90012 Attn: Hon. Andrew C. Kauffman, Judge Steve Cooley, District Attorney John Monaghan, Deputy District Attorney Los Angeles County District Attorney’s Office 210: West Temple Street, Suite 18000 Los Angeles, CA 90012-3210 Governor’s Office Attn: Legal Affairs Secretary State Capitol, First Floor Sacramento, CA 95814 E-15