PEOPLE v. LOPEZ (JUAN M.)Respondent’s BriefCal.December 16, 2005oUPREME COURT COPY IN THE SUPREME COURT OF THE STATE OF CALIFORNIAUPREME COURT FILED DEC 1 6 2005 THE PEOPLE OF THE STATE OF CALIFORNIA, | Plaintiff and Respondent, Frederick k. Onrich Clerk CAPITALCAS&pufy V. S073597 JUAN MANUEL LOPEZ, Defendant and Appellant. Los Angeles County Superior Court No. PA023649 The Honorable Meredith C. Taylor, Judge RESPONDENT?’S BRIEF BILL LOCKYER Attorney General of the State of California ROBERT R. ANDERSON’ ChiefAssistant Attorney General PAMELA C. HAMANAKA Senior Assistant Attorney General JOHN R. GOREY Deputy Attorney General THERESA A. PATTERSON Deputy Attorney General State Bar No. 185407 300 South Spring Street Los Angeles, CA 90013 Telephone: (213) 620-6004 Fax: (213) 897-2808 Attorneys for Respondent DEAT PENALTY TABLE OF CONTENTS Page STATEMENT OF THE CASE 1 STATEMENTOF FACTS 2 I. Guilt Phase Evidence 2 A. Prosecution Evidence 2 1. Appellant’s Relationship With Melinda 3 2. The Kidnapping, Assault, And Burglary Charges 3 3. The Murder Of Melinda 6 > Telephone And Jail Records Of. Appellant’s Whereabouts B. Defense Evidence C. Rebuttal Evidence II. Penalty Phase Evidence A. Prosecution Evidence 1. Evidence Of Other Crimes 2. Victim Impact Evidence B. Defense Evidence ARGUMENT I. THE TRIAL COURT DID NOT ERR IN LIMITING VOIR DIRE OF PROSPECTIVE JURORS A. The Relevant Proceedings Below 12 13 14 15 15 15 15 17 18 18 18 I. IL. IV. Page B. Appellant’s Claim Has Been Waived 21 C. The Voir Dire Was Proper 22 THE TRIAL COURT PROPERLY DENIED APPELLANT’S WHEELER MOTION 24 A. The Relevant Proceedings Below 24 B. The Trial Court Properly Determined That Appellant Had Failed To Show A Prima Facie Case Of Group Bias In The Use Of Peremptory Challenges 28 C. Even IfThe Trial Court Should Have Made A Finding Of TABLE OF CONTENTS (continued) A Prima Facie Showing, Appellant’s Contention Fails Because Race-Neutral Reasons Supported The Exercise Of The Peremptory Challenge APPELLANT WAS NOT DENIED HIS RIGHT TO BE PRESENT A. B. The Relevant Proceedings Below There Was No Denial Of Appellant’s Right To Be Present At Proceedings Bearing No Relation To His Opportunity To Defend The Charges EVIDENCE OF A THREE-WAY TELEPHONE CALL BETWEEN APPELLANT, CODEFENDANT RICARDO LOPEZ, AND JORGE URIBE WAS PROPERLY ADMITTED A. B. The Relevant Proceedings Below The Trial Court Did Not Abuse Its Discretion In Enforcing The Stipulation In Accordance With The Prosecutor’s Interpretation il 34 37 38 42 45 46 56 Vil. TABLE OF CONTENTS(continued) Page C. The Trial Court Properly Admitted Evidence Of The Three-Way Conversation Over Appellant’s Evidence Code Section 352 Objection THE TRIAL COURT PROPERLY ALLOWED EVIDENCE OF RICARDO’S STATEMENT MADE AT THE SCENE OF THE SHOOTING; FURTHERMORE, THE TRIAL COURT HAD NO SUA SPONTE DUTY TO GIVE A LIMITING INSTRUCTION REGARDING THE EVIDENCE A. The Relevant Proceedings Below B. Appellant Has Waived His Constitutional Challenge C. The Trial Court Did Not Abuse Its Discretion In Admitting The Evidence THE TRIAL COURT PROPERLY ALLOWED EVIDENCE THAT THE NUMBER “187” APPEARED ON MELINDA’S PAGER A. The Relevant Proceedings Below B. The Evidence Was Properly Admitted THE TRIAL COURT PROPERLY LIMITED CROSS-EXAMINATION OF THE VICTIM’S MOTHER A. The Relevant Proceedings Below B. Cross-Examination Of Susan Carmody Was Properly Limited lil 62 66 67 69 73 73 74 78 78 80 VIII. TABLE OF CONTENTS(continued) Page THE TRIAL COURT PROPERLY ALLOWED DETECTIVE MORRITT TO TESTIFY ABOUT MELINDA’S DEMEANOR AT THE PRELIMINARY HEARING 84 A. The Relevant Proceedings Below 84 B. Evidence Of Melinda’s Demeanor While Testifying At The Preliminary Hearing Was Relevant. And Was Properly Admitted At Trial 86 — SUBSTANTIAL EVIDENCE SUPPORTS APPELLANT’S FIRST DEGREE MURDER CONVICTION 89 THE TRIAL COURT PROPERLY ALLOWED THE PROSECUTION TO INTRODUCE MELINDA’S DIARY ENTRY AND HER STATEMENTS TO HER TEACHERAS PRIOR CONSISTENT STATEMENTS 96 A. The Relevant Proceedings Below 96 B. Appellant Has Forfeited His Confrontation Clause Claim 98 1. The Failure To Object On Constitutional Grounds Forfeits Appellant’s Claim 99 2. Appellant Cannot Complain About His Right To Confrontation When The Witness Is Unavailable Because Of His Own Wrongdoing 99 C. The Trial Court Properly Admitted The Evidence 101 iV XI. XI. XIII. TABLE OF CONTENTS(continued) D. The Diary Entry And Statements To Melinda’s Teacher Were Not Testimonial In Nature, And Therefore The Introduction Of This Evidence Did Not Violate The Confrontation Clause Under Crawford E. Any Error Was Harmless THE TRIAL COURT PROPERLY INSTRUCTED- THE JURY PURSUANT TO CALJIC NO.2.51 THE TRIAL COURT PROPERLY INSTRUCTED THE JURY ON CONSCIOUSNESS OF GUILT PURSUANT TO CALJIC NOS.2.03 AND 2.06 A. The Relevant Proceedings Below B. The Instructions Were Properly Given APPELLANT’S CLAIM THAT THE PROSECUTOR COMMITTED MISCONDUCT DURING HIS GUILT PHASE CLOSING ARGUMENT HAS BEEN WAIVED; IN ANY EVENT, THERE WAS NO MISCONDUCT A. The Alleged Denigration Of Appellant’s Trial Counsel 1. Appellant Has Waived His Claim Concerning “Disparaging” Comments 2. There Was No Misconduct and Appellant Suffered no Prejudice B. The Alleged Arguing Of Facts Not In Evidence 1. Appellant’s Clatm Has Been Waived Page 104 105 105 107 107 109 110 110 113 115 117 117 XIV. XV. XVI. XVII. XVIII. TABLE OF CONTENTS (continued) Page 2. There Was No Misconduct; Nor Was There Any Possible Prejudice 118 APPELLANT’S CLAIM THAT THE PROSECUTOR COMMITTED MISCONDUCT DURING HIS PENALTY PHASE ARGUMENT HAS BEEN WAIVED;IN ANY EVENT, THERE WAS NO MISCONDUCT 120 A. The Relevant Proceedings Below 120 B. The Alleged Appeals To Passion Or Prejudice 128 C. Contrasting Life In Prison With The Victim’s Family Visiting Melinda’s Grave Site - 130 THE TRIAL COURT HAD NO SUA SPONTE DUTY TO INSTRUCT THE JURORS TO DISREGARD APPELLANT’S RESTRAINTSIN REACHING THE PENALTY VERDICT 131 A. The Relevant Proceedings Below 131 B. There Was No Sua Sponte Duty To Instruct The Jury To Disregard The Restraints 134 ANY ERROR IN FAILING TO DEFINE REASONABLE DOUBT AT THE PENALTY PHASE ORIN FAILING TO INSTRUCT THE JURY ON HOW TO CONSIDER PENALTY PHASE EVIDENCE WAS HARMLESS 136 INTERCASE PROPORTIONALITY REVIEW IS NOT CONSTITUTIONALLY REQUIRED 138 CALIFORNIA’S DEATH PENALTY STATUTE IS NOT UNCONSTITUTIONAL 139 Vi XIX. XXI. XXII. TABLE OF CONTENTS(continued) THE TRIAL COURT PROPERLY INSTRUCTED THE JURY ON ITS SENTENCING DISCRETION PURSUANT TO CALOJIC NO. 8.88 THE TRIAL COURT PROPERLY INSTRUCTED THE JURY ON THE AGGRAVATING AND MITIGATING FACTORS IN PENAL CODE SECTION190.3 APPELLANT’S DEATH SENTENCE DOES NOT VIOLATE INTERNATIONAL LAW NO REVERSAL IS REQUIRED BASED ON THE CUMULATIVE EFFECT OF ALLEGED ERRORS CONCLUSION Vil Page 141 143 145 148 149 TABLE OF AUTHORITIES Cases American Baptist Churches in the U.S.A. v. Meese (N.D.Cal. 1989) 712 F.Supp. 756 Apprendi v. New Jersey (2000) 530 US. 466 [120 S.Ct. 2348, 148 L.Ed.2d 435] Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69] Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] Bruton v. United States (1968) 391 USS. 123 [88 S. Ct. 1620, 20 L.Ed.2d 476] California v. Green (1970) 399 U.S. 149 [90 S.Ct. 1930, 26 L.Ed.2d 489] California v. Ramos (1983) 463 U.S. 992 [103 S.Ct. 3446, 77 L.Ed.2d 1171] Vill Page 147 139 29, 34 139, 140 46, 58, 59, 61 87 76 TABLE OF AUTHORITIES (continued) Page Chambers v. Mississippi (1973) 410 U.S. 284 [93 S.Ct 1038, 35 L.Ed.2d 297] 81 Chapmanv. California (1967) 386 US. 18 [17 L.Ed.2d 705, 87 S.Ct. 824] 44 Chapmanv. California (1967) 386 USS. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] 38, 105 Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177] 99-101, 104 Delaware v. Van Arsdall (1986) 475 U.S. 673 [106 S.Ct. 1431, 89 L.Ed.2d 674] 80 Dreyfus v. Von Finck (2nd Cir. 1976) 534 F.2d 24 146 Frolova v. Union ofSoviet Socialist Republics (7th Cir. 1985) 761 F.2d 370 . 147 Fujii v. State ofCalifornia (1952) 38 Cal.2d 718 146 Green v. Georgia (1979) 442 U.S. 95 [99 S.Ct. 2150, 60 L.Ed.2d 738] 81 1X TABLE OF AUTHORITIES(continued) Hanoch Tel-Oren v. Libyan Arab Republic (D.C. 1981) 517 F.Supp. 542 In re Lessard (1965) 62 Cal.2d 497 Jackson v. Virginia (1979) 443 U.S. 307 [99 S.Ct. 2781, 61 L.Ed.2d 560] Johnson v. California (2005)US. [125 S.Ct. 2410, 162 L.Ed.2d 129] Matta-Ballesteros v. Henman (7th Cir. 1990) 896 F.2d 255 Ohio v. Roberts (1980) 448 U.S. 56 [100 S.Ct. 2531, 65 L.Ed.2d 597] Parle v. Runnels (9th Cir.2004) 387 F.3d 1030 People v. Abbott (1956) 47 Cal.2d 362 People v. Adams (1993) 19 Cal.App.4th 412 People v. Alvarez (1996) 14 Cal.4th 155 People v. Aranda (1965) 63 Cal.2d 518 Page 145 42, 44 90 29, 30, 32, 33 146 99 104 44 87 34, 35, 37, 69, 70, 99 46, 58, 61 TABLE OF AUTHORITIES (continued) Page People v. Arias (1996) 13 Cal.4th 92 115 People v. Ayala (2000) 24 Cal.4th 243 31 People v. Babbitt (1988) 45 Cal.3d 660 75 People v. Bean (1988) 46 Cal.3d 919 90 People v. Beeman (1984) 35 Cal.3d 547 90 People v. Beivelman (1968) 70 Cal.2d 60 116 People v. Bell (1989) 49 Cal.3d 502 114 People v. Benevides (2005) 35 Cal.4th 69 109 People v. Berryman (1993) 6 Cal.4th 1048 113 People v. Bolden (2002) 29 Cal.4th 515 145 People v. Bolton (1979) 23 Cal.3d 208 114 People v. Box (2000) 23 Cal.4th 1153 139, 142, 144 People v. Boyette (2002) 29 Cal.4th 381 69, 141 Xi TABLE OF AUTHORITIES (continued) Page People v. Bradford (1997) 14 Cal. 4th 1005 130 People v. Bradford ~ (1997) 15 Cal.4th 1229 42, 44 People v. Breverman (1998) 19 Cal.4th 142 70, 72, 77 People v. Brown (2004) 33 Cal.4th 382 140, 143, 144 People v. Burgener (2003) 29 Cal.4th 833 99, 145 People v. Cahill (1993) 5 Cal.4th 478 70 People v. Carpenter . (1997) 15 Cal.4th 312 139, 142 People v. Carter (2003) 30 Cal.4th 1166 137, 141 People v. Cash (2003) 28 Cal.4th 703 109 People v. Catlin (2001) 26 Cal.4th 81 69, 145 People v. Ceja (1993) 4 Cal.4th 1134 90 People v. Clark (1993) 5 Cal.4th 950 145 People v. Cleveland (2004) 32 Cal.4th 704 106 Xil TABLE OF AUTHORITIES (continued) Page People v. Coleman (1989) 48 Cal.3d 112 71, 72 People v. Collie (1981) 30 Cal.3d 43 72 People v. Contreras (1994) 26 Cal.App.4th 944 90 People v. Cooper (1991) 53 Cal.3d 1158 90 People v. Cooper (1991) 53 Cal.3d 771 80 People v. Corella (2004) 122 Cal.App.4th. 461 104 People v. Cornwell (2005) 37 Cal.4th 50 28-30 People v. Cox (2003) 30 Cal.4th 916 129, 140 People v. Crittenden (1994) 9 Cal.4th 83 75 People v. Croy (1985) 41 Cal.3d 1 91 People v. Cunningham (2001) 25 Cal.4th 926 118, 119 People v. Davenport (1985) 41 Cal.3d 247 130 People v. De La Plane (1979) 88 Cal.App.3d 223 75 X1il TABLE OF AUTHORITIES (continued) _ Page People v. Dickey (2005) 35 Cal.4th 884 144 People v. Downs (1952) 114 Cal.App.2d 758 88 People v. Duran (1976) 16 Cal.3d 282 | 134 People v. Dyer (1988) 45 Cal.3d 26 56-58 People v. Earp (1999) 20 Cal.4th 826 66 People v. Edelbacher (1989) 47 Cal.3d 983 114 People v. Espinoza (1992) 3 Cal.4th 806 115 People v. Estep (1996) 42 Cal.App.4th 733 106 People v. Farnam (2002) 28 Cal.4th 107 119 People v. Fierro (1991) 1 Cal.4th 173 21, 22, 130 People v. Flores (2005) 129 Cal.App.4th 174 76, 94 People v. Frye (1998) 18 Cal.4th 894 115 People v. Garceau (1993) 6 Cal.4th 140 75, 81 XIV TABLE OF AUTHORITIES (continued) Page People v. Gentry (1969) 270 Cal.App.2d 462 102, 103 People v. Ghent (1978) 43 Cal.3d 739 147, 148 People v. Gionis (1995) 9 Cal.4th 1196 114, 115, 117 People v. Gray (2005) 37 Cal.4th 168 30 People v. Griffin (2004) 33 Cal.4th 536 140 People v. Gutierrez (2002) 28 Cal.4th 1083 95 People v. Hall (1986) 41 Cal.3d 826 81 People v. Hammond (1986) 181 Cal.App.3d 463 91 People v. Hannon (1977) 19 Cal.3d 588 76 People v. Hardy (1992) 2 Cal.4th 86 45 People v. Haskett (1982) 30 Cal.3d 841 129 People v. Hayes (1990) 52 Cal.3d 577 142 People v. Heard (2003) 31 Cal.4th 946 21 XV TABLE OF AUTHORITIES (continued) People v. Hill (1998) 17 Cal.4th 800 People v. Hillhouse (2002) 27 Cal.4th 469 People v. Hines (1997) 15 Cal.4th 997 People v. Holloway (2004) 33 Cal.4th 96 People v. Holt (1997) 15 Cal.4th 619 People v. Horning (2004) 34 Cal.4th 871 People v. Horton (1995) 11 Cal.4th 1068 People v. Jackson (1996) 13 Cal.4th 1164 People v. Jaspal (1991) 234 Cal.App.3d 1446 People v. Jenkins (2000) 22 Cal.4th 900 People v. Johnson (1980) 26 Cal.3d 557 People v. Johnson (1993) 6 Cal.4th 1 People v. Johnson (2003) 30 Cal.4th 1302 Xvi Page 114, 115, 117, 118, 129, 130 145, 147, 148 42 109 38, 42-44, 136, 137 140 42 109, 140 69 145, 147, 148 89 44 29 TABLE OF AUTHORITIES (continued) Page People v. Jones (1990) 51 Cal.3d 294 89 People v. Jones (1998) 17 Cal.4th 279 94, 95 People v. Karis (1988) 46 Cal.3d 612 75 People v. Kennedy (2005) 36 Cal.4th 595 143 People v. Kipp . (1998) 18 Cal.4th 349 75 People v. Kipp . (2001) 26 Cal.4th 1100 138 People v. Kraft (2000) 23 Cal.4th 978 75, 81, 144 People v. Lewis -(2001) 26 Cal.4th 334 87, 144 People v. Lucas (1995) 12 Cal.4th 415 22 People v. Lucero (2000) 23 Cal.4th 692 138 People v. Manson (1976) 61 Cal.App.3d 102 87, 94 People v. Martin (1983) 150 Cal.App.3d 148 94 People v. Maury (2003) 30 Cal.4th at 342 139 XVil TABLE OF AUTHORITIES (continued) Page People v. Mayfield (1997) 14 Cal.4th 668 44,129 People v. McCoy (2004) 25 Cal.4th 1111 90 People v. Medina (1990) 51 Cal.3d 870 135 People v. Medina (1996) 11 Cal.4th 694 ' 135 People v. Memro (1995) 11 Cal.4th 786 21 People v. Mickey (1991) 54 Cal.3d 612 75 People v. Milner (1988) 45 Cal.3d 227 116 People v. Mitcham (1992) 1 Cal.4th 1027 114, 119 People v. Montoya (1994) 7 Cal.4th 1027 90 People v. Moon (2005) 2005 WL 1981450 142 People v. Moon (2005) 32 Cal.Rptr.3d 894 137, 138 People v. Morales (2001) 25 Cal.4th 34 118 People v. Morrison (2004) 34 Cal.4th 698 140, 144 XVili TABLE OF AUTHORITIES (continued) People v. Nakahara (2003) 30 Cal.4th 705 People v. Ochoa (2001) 26 Cal.4th 398 People v. Ochoa (2001) 26 Cal.4th 398 People v. Panah (2005) 35 Cal.4th 395 People v. Perez (2005) 35 Cal.4th 1219 Peoplev. Pitts (1990) 223 Cal.App.3d 606 People v. Prevost (1998) 60 Cal.App.4th 1382 People v. Price (1991) 1 Cal.4th 324 People v. Pride (1992) 3 Cal.4th 195 People v. Raley (1992) 2 Cal.4th 870 People v. Ramos (1982) 30 Cal.3d 553 People v. Reynoso (2003) 31 Cal.4th 903 People v. Rodrigues (1994) 8 Cal.4th 1060 XIX Page 109 38, 43 38, 43, 147, 148 32, 140 91 76 93 114, 148 148 69, 140 75, 145 34 64, 65, 77, 81, 90, 99 TABLE OF AUTHORITIES (continued) People v. Roldan (2005) 35 Cal.4th 646 People v. Samayoa (1997) 15 Cal.4th 795 People v. Sanders (1995) 11 Cal.4th 475 People v. Sanford (1872) 43 Cal. 29 People v. Scheid (1997) 16 Cal.4th 1 People v. Schmeck (2005) 2005 WL 2036176 People v. Siripongs (1988) 45 Cal.3d 548 People v. Slaughter (2002) 27 Cal.4th 1187 People v. Smith (2003) 30 Cal.4th 581 People v. Smith (2005) 35 Cal.4th 334 People v. Smithey (1999) 20 Cal.4th 936 People v. Snow (2003) 30 Cal.4th 43 People v. Sorrentino (1956) 146 Cal.App.2d 149 Page 22, 23 113 22, 115 88 74, 75, 81, 83 143 75 135 129 32, 143 81 106, 138, 139, 147, 148 65 XX TABLE OF AUTHORITIES (continued) People v. Staten (2000) 24 Cal.4th 434 People v. Stewart (1985) 171 Cal.App.3d 59 People v. Stitely (2005) 35 Cal.4th 514 People v. Strickland (1974) 11 Cal.3d 946 People v. Swain (1996) 12 Cal.4th 593 People v. Towery (1985) 174 Cal._App.3d 1114 People v. Turner (2004) 34 Cal.4th 406 People v. Von Villas (1992) 11 Cal.App.4th 175 People v. Ward (2005) 36 Cal.4th 186 People v. Warren (1988) 45 Cal.3d 471 People v. Watson (1956) 46 Cal.2d 818 People v. Weiss (1958) 50 Cal.2d 535 People v. Welch (1999) 20 Cal.4th 701 XXx1 Page 21 75 109, 140 115 95 94 144 76 140 87 44, 66, 70, 83, 88, 105 76 42,115 TABLE OF AUTHORITIES (continued) People v. Wharton (1991) 53 Cal.3d 522 People v. Wheeler (1978) 22 Cal.3d 258 People v. Williams (1968) 265 Cal.App.2d 888 People v. Williams (1997) 16 Cal.4th 153 People v. Williams (1997) 16 Cal.4th 635 People v. Williams (2002) 102 Cal.App.4th 995 People v. Wong Loung (1911) 159 Cal. 520 People v. Yeoman (2003) 31 Cal.4th 93 People v. Young (2005) 34 Cal.4th 1149 People v. Younger (2000) 84 Cal.App.4th 1360 People v. Zapien (1993) 4 Cal.4th 929 Purkett v. Elem (1995) 514 U.S. 765 [115 S.Ct. 1769, 131 L.Ed.2d 834] XX Page 89 24, 25, 27, 29, 30, 32 87 70 34 102, 103 88 29 115, 116 119 95 34 TABLE OF AUTHORITIES (continued) Page Reynolds v. United States (1879) 98 U.S. 145 [25 L.Ed. 244] 100 Richardson v. Marsh (1987) 481 U.S. 200 [107 S.Ct. 1702, 95 L.Ed.2d 176] 46, 52, 58-61 Ring v. Arizona (2002) 536 U.S. 584 [122 S.Ct. 2428, . 153 L.Ed.2d 556] 139, 140 Tolbert v. Gomez . (9th Cir. 1999) 190 F.3d 985 29 Tuilaepa v. California (1994) 512 U.S. 967 [114 S.Ct. 2630, 129 L.Ed.2d 750] 143 Turner v. Murray (1986) 476 U.S. 28 [106 S.Ct. 1683, 90 L.Ed.2d 27] 22 United States ex rel. Lujan v. Gengler (2d Cir. 1975) 510 F.2d 62 146 United States v. Cherry (10th Cir. 2000) 217 F.3d 811 | 101 United States v. Gagnon (1985) 470 U.S 522 [105 S.Ct. 1482, 84 L.Ed.2d 486] 44 XXill TABLE OF AUTHORITIES (continued) Page United States v. McClendon (9th Cir. 1986) 782 F.2d 785 44 United States v. Olano (9th Cir. 1995) 62 F.3d 1180 44 United States v. Power (9th Cir. 1989) 881 F.2d 733 31 United States v. Zabaneh (5th Cir. 1988) 837 F.2d 1249 146 Constitutional Provisions Cal. Const., art. I, § 7 37 Cal. Const., art. I, § 15 37, 42 Cal. Const., art. 1, § 16 37 Cal. Const., art. VI, § 13 70 U.S. Const., 5th Amend. 143 U.S. Const., 6th Amend. 37, 42, 98-99, 143-144 U.S. Const., 8th Amend. 138, 140, 143-144 U.S. Const., 14th Amend. | 37, 42, 138, 143-144 U.S. Const., art. VI, § 2 146 XX1V TABLE OF AUTHORITIES(continued) Page Statutes 1 Witkin & Epstein, Cal. Crim. Law (3d ed. 2000) Elements, § 93, pp. 310-311 77, 94 1 Witkin, Cal. Proc. (3d ed. 1985) Attorneys, § 223, p. 252 56 4 Wigmore, Evid. (3d ed.) § 1127, p. 202 103 Evid. Code, § 210 70, 75 Evid. Code, § 350 75, 87 Evid. Code, § 351 75 Evid. Code, § 352 Evid. Code, § 353 Evid. Code, § 354 Evid. Code, § 355 Evid. Code, § 402 Evid. Code, § 761 Evid. Code, § 780 Evid. Code, § 791 Evid. Code, § 791, subd.(b) Evid. Code, § 1200, subd.(a) Evid. Code, § 1223 Evid. Code, § 1236 45, 62, 64, 65, 73-75, 81 70, 99 70, 83 71, 72 48, 54, 58 78, 80 86, 87 98, 101-102 102 69 76 98, 101 XXV TABLE OF AUTHORITIES (continued) Evid. Code, § 1291 Pen Pen Pen Pen Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. . Code, § 31 . Code, § 182, subd.(a) . Code, § 184 . Code, § 187, subd.(a) Code, § 190.2, subd.(a) Code, § 190.3 Code, § 190.3, subd.(a) Code, § 190.3, subd. (b) Code, § 190.4, subd.(e) Code, § 207, subd.(a) Code, § 245, subd.(a) Code, § 459 Code, § 977 Code, § 977, subd. (b) Code, § 1043 Code, § 1239, subd.(b) Code, § 12022, subd. (a) XXVI1 Page 88 90 93 93 l 1 129, 143-144 143 143 2 1 1 1 37, 42, 43, 45 42 42, 43 TABLE OF AUTHORITIES (continued) Page Other Authorities CALJIC No. 2.03 106-109 CALJIC No. 2.06 106-109 CALJIC No. 2.20 . 137 CALJIC No.2.51 105-107 CALJIC No. 2.70 137 CALJIC No. 2.71 137 ~ CALIJIC No.3.01 91 CALJIC No. 8.84.1 | 137 CALJIC No. 8.85 120, 131, 144 CALJIC No.8.88 141-142 XXVil IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, a CAPITAL CASE Plaintiff and Respondent, 5073597 v. JUAN MANUEL LOPEZ, Defendant and Appellant. STATEMENT OF THE CASE In an information filed on February 13, 1997, by the Los Angeles County District Attorney, appellant was charged with the murder of Melinda Carmody(Pen. Code,” § 187, subd.(a); count 1), kidnapping (§ 207, subd.(a); count 2), assault by means of force likely to produce great bodily injury and/or with a deadly weapon (§ 245, subd. (a)(1); count 3), first degree residential burglary (§ 459; count 4), and second degree burglary ofa vehicle (§ 459; count 5). It was alleged that Melinda Carmody was a witness to a crime and was intentionally killed because of that fact within the meaning ofsection 190.2, subdivision (a)(10). It was further alleged that a principal was armed with a firearm within the meaning of section 12022, subdivision (a)(1). (CT 699- 702.) 1. All further statutory references are to the Penal Code, unless otherwise specified. 2. The information also charged appellant’s brother, Ricardo Lopez, with the murder of Melinda Carmody in count 1. Appellant and his brother were tried jointly, although the People did not seek the death penalty against Ricardo Lopez, who was17 years old at the time ofthe murder. Ricardo Lopez was convicted offirst degree murder and a section 190.2, subdivision (a)(10) special circumstance was foundto be true. (RT 2760-2761.) Heis not a party l Appellant pled not guilty and denied the special allegations. (CT 704.) Trial was by jury. (CT 903.) On July 2, 1998, the jury found appellant guilty of first degree murder and foundtrue the special circumstance that Melinda Carmody wasa witness to a crime and wasintentionally killed due to thatfact. The jury found the firearm allegation to be true. (CT 1072.) The jury also found appellant guilty of the crimes of kidnapping, assault by means of force likely to producegreat bodily injury and/or with a deadly weapon, and second degree burglary of an automobile. (CT 1073-1075.” The penalty phase ofthe trial began on July 7, 1998. (CT 1088.) On July 8, 1998, the jury found the appropriate penalty to be death. (CT 1090.) Thetrial court denied appellant’s application for modification ofthe verdict of death pursuant to section 190.4, subdivision (e), and sentenced appellant to death. (CT 1138-1139.) This appeal is automatic. (§ 1239, subd.(b).) STATEMENT OF FACTS I. Guilt Phase Evidence A. Prosecution Evidence | Asset forth below in detail, appellant orchestrated the murder ofhis estranged 16-year-old girlfriend, Melinda Carmody(hereinafter “Melinda”). A few weeks after Melinda had ended their one-year dating relationship, appellant broke into Melinda’s residence, cut her neck with a knife, and kidnapped her. Melindareported the incidentto the police. Despite appellant’s to this appeal. 3. The jury was unableto reach a verdict on the charge offirst degree residential burglary. A mistrial was declared and the count was dismissed in the furtherance ofjustice. (CT 1086-1087.) 2 attempts to dissuade Melinda from testifying against him, Melinda did indeed testify against him at a preliminary hearing on March 28, 1996. In the ensuing weeks, appellant, while in jail, made several telephone calls to Melinda’s friends, arranging for them to take her to a specific location claimed by appellant’s Parthenia Street gang, on the evening of April 12. After Melinda arrivedat this location, she was shot several times at close range by appellant’s 17-year-old brother, Ricardo Lopez, in front of numerous witnesses. 1. Appellant’s Relationship With Melinda On March 17, 1995, when Melinda was 14 years old, she joined the Parthenia Street Baby Locas (“the Baby Locas”), a female gang started by appellant to complement his own gang, Parthenia Street, otherwise knownas the Parthenia Village Locos and Cyclonas. (RT 1147-1148, 1153.) Appellant was21 years old at the time. (See RT 2126). Shortly after Melindajoined the gang, appellant and Melinda began a romantic relationship. (RT 1152-1153.) At some point in their relationship, Melinda moved in with appellant’s family. (RT 1153, 1590.) After dating for almost a year, Melinda broke up with appellant on February 27, 1996. (RT 917.) 2. The Kidnapping, Assault, And Burglary Charges” On March 13, 1996,” Melinda had moved back in with her mother and wasliving at 14315 Terra Bella in Los Angeles County. At 11:30 a.m., she was home alone whenshe received a telephonecall from appellant. Appellant asked 4. Melinda’s testimony from the preliminary hearing in the kidnapping, assault, and burglary case was read to the jury. (RT 916-947.) 5. Melinda was 15 yearsold at the time. By the timeshetestified at the preliminary hearing, she had turned 16. (RT 919.) 3 if he could come over to pick up some paperwork, but Melinda said “no.” Melinda feared appellant, because he had told herif she ever broke up with him, he would kill her. (RT 916-919.) One hourafter calling Melinda, appellant entered Melinda’s home through her attached garage. He wentto the living room and asked Melindaif she wanted to leave with him. When Melinda refused, appellant approached her with a knife in his hand. Appellant struck Melinda with the knife on the back of the neck, causing her to fall on a couch. Appellant got on top of Melinda and choked her with both hands. Melinda could not breathe. (RT 918-921.) Appellant told Melinda that if he “can’t have” her, then “no one can.” (RT 947.) Appellant released Melinda after she fell off the couch. He dragged Melinda to her feet by pulling her hair and then draggedher to her upstairs bedroom bypulling her arm. Appellant forced Melinda into a walk-in closet, gave her a bag, and ordered her to put clothes in the bag. When Melinda finished packing, appellant took her bag and dragged her downstairs by pulling her arm. (RT 921-924.) Appellant pushed Melinda into the back seat of a car. Melinda was frightened. The car was being driven by a manshe did not know. They drove to appellant’s home. Melindastayed in the car with the driver while appellant went inside his home. A few moments later, appellant returned to the automobile carrying a small bag. (RT 924-927.) Next, they drove to the Los Angeles home of appellant’s aunt. Appellant took Melindainside andthen left. Melinda’s neck was bleeding, and appellant’s aunt helped Melinda clean the wound. Fourhourslater, appellant’s aunt drove Melinda back to her home. (RT 927-933.) At 5:00 p.m., Los Angeles Police Officer Robert Denton went to Melinda’s home. (RT 948.) Melinda wasvery upset, nervous, and crying. He subsequently brought Melinda to the Van Nuyspolicestation and photographed the bruises and scratch marks on her neck. Bloodstill was oozing from the wounds on Melinda’s neck. (RT 949-950, 952-953.) On March 15, 1996, Zury-Kinshasa Terry lived in a condominium located at 14235 Terra Bella. In the early morning hours of March 15, she heard glass shattering in the street below her window. She looked out her window and saw someone movinginside her aunt’s car which was parked on the street. When Terry opened the door to her condominium, the person, whom she identified in court as appellant, exited her aunt’s car. Appellant walked towards Terry andsaid, “Bitch, if you don’t get back in the house, I am going to kill you. someone had broken into her car. (RT 981, 983-986.) Officers arrived Terry closed the door and told her auntto call 911 because moments later and apprehended appellant near the condominium, under a balcony. (RT 986-989.) Appellant told an officer he was there to see his girlfriend. (RT 1014.) He did not explain what he was doing under the balcony. He repeatedly said that he loved his girlfriend “too much.” (RT 1020.) | On March 18, 1996, Detective Philip Morritt of the Los Angeles Police Department interviewed appellant regarding the kidnapping of Melinda. (RT 1040-1043.) Appellant said he took a bus to Melinda’s hometo get some tax papers from her. They argued while he wasat her home,and he hit and choked her. Afterwards, they got on a bus and wentto his house. A “friend” picked them up at his house and drove them to appellant’s aunt’s house in Los Angeles. Appellant claimed that Melinda went with him voluntarily. Appellant could not rememberthe nameor telephone numberofthe “friend.” (RT 1045- 1047.) 3. The Murder Of Melinda A couple of days before the preliminary hearing was to begin in appellant’s kidnapping, assault, and burglary case (hereinafter, the “kidnapping case’), he called Sandra Ramirez (also known as “Shy Girl’), a member of Melinda’s gang, the Baby Locas, fromjail. (RT 1147-1148, 1157-1159, 1164.) Ramirez had beenthe first member ofthe Baby Locas and was Melinda’s close friend. (RT 1147-1148, 1155.) She was dating a memberof the Parthenia Street gang. (RT 1294.) Appellant told Ramirez about his problems with Melinda. Appellant admitted stabbing Melindain the neck andtrying to kidnap her. He said he wanted to take Melinda to Mexico so they could get married. Appellant asked Ramirez to tell Melinda not to testify at the preliminary hearing.” The next day, appellant called Ramirez again and askedherto meet him at the courthouse so he could give her a letter for Melinda. Ramirez, however, did not go to court. (RT 1157-1162, 1396, 1999-2000, 2003.) Thepreliminary hearing in the kidnapping case was held on March28, 1996. (RT 1049.) According to Detective Morritt, who was present at the preliminary hearing, Melinda was “frightened, upset and sometimes crying” during her testimony. (RT 1051.) At one point during Melinda’stestimony,the court took a recess for the noon lunch break, and appellantsaid, “I don’t have to sit here andlisten to this shit.” (RT 1054-1055.) Sometime during the first week ofApril 1996, appellantcalled hissister, Patricia Lopez, fromjail and asked herto set up a three-way telephonecall with his brother, Ricardo Lopez (also known as “Diablo”), and Jorge Uribe (also known as “Pelon”). Patricia set up the telephonecall, but she did notlisten to the conversation. (RT 1192, 1837, 1388, 1536, 1589-1590, 1597, 1825-1829, 2007-2009.) | 6. Ramirez subsequently relayed this message to Melinda. (RT 1162.) 6 On April 11, 1996, appellant made a three-way telephonecall from jail to Ramirez and Alma Cruz (also knownas “Silent”), another memberof the Baby Locas. (RT 1163-1166, 1374-1377.) Appellant told them to attend a Parthenia Street gang meetingin the“alley’” on Friday, April 12. He said they had to pay dues to the Mexican Mafia. The Baby Locas hadnotpreviously paid dues to the Mexican Mafia. (RT 1166-1167.) Appellant also said Melinda had told him that one of her friends, “Happy,” was to be “jumped” into the Baby Locas.” (RT 1172, 1175.) Ramirez and Melinda hadinitially planned for Happy’s initiation to occur at a carnival at Humphrey Park that night. Appellant said ifHappy wasinitiated at the park rather than the alley, she would not be “from the neighborhood.” Ramirez had believed it did not matter where a new member wasinitiated as long as it was done by fellow gang members. She complied with appellant’s instructions, because he had founded the Baby Locas. Appellant also told Ramirez to enforce his ordersifthe other members disobeyed. Ramirez wasthe leader ofthe Baby Locas and wasresponsible for enforcing orders. (RT 1176-1179.) During this same conversation, appellant asked Cruz if she could kill a “homegirl,” meaning a member of her gang. Cruz said it would depend on - whetherthe person “did something” to her. Appellant said, “I already have someone doing it for me.” (RT 1187, 1382.)” 7. The “alley” referred to an alley offSchoenborn Street between Zelzah Avenue and Lindley Avenue. The Parthenia Street gang controlled the alley and the immediate surrounding area. (RT 1090, 1093-1094.) 8. A person joining the gang had to be “jumped in,” in an initiation where three gang members fought the person joining the gang. (RT 1150.) 9. At the time, the “immediate group” of the Baby Locas, included Melinda, Ramirez, and Cruz. (RT 1188.) Another girl, Ophelia (also known as “Juera”or “Giggles”) was also a memberbutdid not hang out with the gang very often. (RT 1188, 1403.) Other members included “Baby”and “Casper.” (RT 1403, 1433.) Angelica Maria Soto (also known as “Sad Girl”) had 7 The following evening, April 12, Ramirez drove Melinda and several other girls” to the meeting in the alley. (RT 1179-1184.) Ricardo and Uribe were already there whenthe girls arrived. (RT 1192, 1837, 1388, 1536.) Upon seeing Ricardo and Uribe, Melinda appeared afraid and said she was worried. Ramirez told her not to worry and that nothing was going to happen. (RT 1195.) After a while, Ramirez, Melinda, and someofthe other girls went to a liquor store. (RT 1196, 1199.) Melinda attempted to call Happy. (RT 1197.) Thegirls then returnedto the alley. (RT 1197.) Whenthey returned, two other members of the Parthenia Street gang, Ramon Ramos(also knownas “Oso’”) and “Terko” were there, along with two non-gang members. (RT 1196-1199, 1214, 2243.) Thirty minutes later, Ramirez and Melinda drove to the liquor store again. They were accompaniedby Ricardo and oneofthe other girls. Melinda sat with Ricardo in the back seat of the car, although they did not talk. When they arrived at the liquor store, Melinda went inside to makea telephonecall. Ricardo wentinside and had an adult buy him beer. The group then returned to the alley. (RT 1199-1202.) Later, Melinda wentto the liquor store for a third time. She wentthere with Ramos. After they returned, Ramirez spoke with Ricardo. (RT 1202- 1203.) Ricardo asked Ramirez why she brought “them,” apparently referring to the other girls. (RT 1205-1206.) Ricardo also told Ramirez that she knew what was going to happen. Ramirez, however, did not know what was going previously been a memberbut had since “walked out” of the gang. (RT 1169- 1170, 1531.) Since the gang’s inception, there had beena total of seven or eight members. (RT 1295.) 10. Those present included Liliana Delgado and her one-year old son, sisters Alma and Yesenia Cruz, and Angelica Maria Soto. (RT 1180-1182, 1384-1386.) to happen. (RT 1206-1207.) Ricardo told Ramirez that if anything happened, she wasto say “it was a drive-by.” (RT 1207.) Ramurez still did not know what Ricardo wastalking about. Ricardo pulled a gun from his waistband, pointed it at Ramirez, and said he was going to shoot her. Uribe, who had been standing nearby, said something to Ricardo, and told him to put the gun away. Ricardo next told Ramirez they were going to “jump”her boyfriend because he had not been paying his dues. Ramirez went to talk to Ramos about Ricardo’s comments regarding her boyfriend. (RT 1207-1208, 1212-1213, 1215.) Uribe told Melinda that Ricardo wanted to speak with her. Melinda looked as if she did not want to speak with Ricardo. While Ricardo was speaking with Melinda, he had a gun next to his leg pointing toward the ground. Melinda then screamed to Ramirez, “Let’s get out of here.” Melinda ran toward Ramirez, and Ricardo followed. Ricardoraised the gun,pointedit at Melinda’s back,andfired several shots. Melindafell sideways ontothestreet and looked at Ramirez. Ricardo walked up very close to Melinda, pointed the gun at her, and shotherin the head. He fired more than one shot. Melindafell all the way to the pavementafter being shot in the head. Ricardo said the word “brother” when he shot Melinda. Ramirez and someofthe othergirls went to Melinda, but Melinda appeared to be dead. Blood was coming from the woundsin her back and head. (RT 1215-1233, 1266, 1394-1399, 1472-1477, 1540-1546, 1549.) Ricardo walked backwards away from Melinda and pointed the gunat his own head. Ramos wentto Ricardo, who appeared to be angry. Ricardo ran away toward Lindley. Thegirls also fled because they were scared and did not wantto falsely tell police it was a drive-by shooting. They wentto a 7-Eleven store at Roscoe and Reseda and called 911. (RT 1267-1270, 1401-1402, 1442, 1545.) Drew Oliphant, a firefighter-paramedic for the City ofLos Angeles Fire Department and his partner were called to the scene and attempted to aid Melinda. After they transported Melinda to the hospital, Oliphant saw Melinda’s pager. The pager had a messagethat read, “187.” (RT 1511-1512, 1524-1525." The hospital’s chaplain, Josue Garcia Delgado,Jr., also saw Melinda’s pager. On the pager was series of 187’s and the telephone number “891-1948.” The chaplain subsequently learned the telephone number belonged to Melinda’s mother. (RT 1896, 1906-1907.) Melinda died from multiple gunshot wounds. She had two gunshot woundsto the back, and oneto the rear of her head. (RT 1707-1726.) On April 13, 1996, the day after the shooting, Ramirez received a three- waytelephonecall from appellant and his sister Patricia.” Appellant asked Ramirez, “What happened?” Ramirez said Ricardo shot Melinda. Appellant asked ifRamirez knew where Ricardo was. Ramirez told appellant she did not know. Appellant then hung up. (RT 1273-1275, 1589-1590, 2012-2013, 2021- 2022.) Later that day, Ricardo called Ramirez. He asked her, “What happened?” Ramirez said, ““You know what happened.” Ricardo told Ramirez to say the incident was a drive-by shooting,andhetold hertotell “the girls”the incident wasa drive-by shooting. Appellant called Ramirez again after she had spoken with Ricardo. He asked if she had spoken tothe police. She said she had not. Appellant told her, “Don’t say anything.” Ricardo then telephoned Ramirez a second time. Hesaid to tell the “girls”to attend a meeting that night so they would know “what to say” about the incident. Ramirez said the girls 11. Detective Michael Oppelt of the Los Angeles Police Department testified that “187” meant “murder.” (RT 1661.) 12. Patricia testified at trial she did not remember makingthis telephone call. (RT 1598.) 10 could not go to a meeting. Ricardo said the “same thing” would happen to them if they did not go to the meeting. (RT 1279-1282, 2012-2014, 2021- 2022.) On Sunday, April 14, two days after the shooting, Ramirez spoke to Detective Oppelt. After speaking with the detective, Ramirez received another telephone call from appellant. Appellant asked if she had spoken with the police. She said she spoke with them, but did not tell them anything. (RT | 1282-1284, 2014-2015, 2021-2022.) While appellant was in custody, and after being advised of, and waiving, his constitutional rights, he told the police he did not know Melinda had been killed until a week after she died. He admitted he made a mistake in kidnapping Melinda. He also was madthat Melindatestified against him. (RT 1608-1613.) Appellant said he had not spoken to Ricardo since appellant had been arrested for kidnapping. He also said he had not spoken to Uribe. (RT 1635-1636, 1639.) He initially denied having talked to Ramirez, but he later acknowledged he had done so. (RT 1618-1619.) In a police interview, Ricardo admitted shooting Melinda. He claimed that he was angry about whatshe hadsaid abouthis brother in court. Ricardo acknowledged that two to three days before the shooting, he and Uribe had discussed shooting Melinda. Uribe obtained the gun for him. (RT 1831-1848.) Ricardo claimed that he only wanted to wound Melindarather than kill her. (RT 1861, 1864.) In January 1997, sometime before the preliminary hearing regardingthe _ murder chargesagainst appellant and Ricardo, Ramirez’s boyfriend Aldo(also knownas “Bago”) received a letter from Ricardo. The return address on the letter was a jail facility. (RT 1281, 1284-1286, 1289-1291.) In theletter, 13. The jury wasinstructed that Ricardo’s statementto the police was admissible only against Ricardo. (RT 1831, 1840.) 11 Ricardo ordered Aldo to tell Ramirez “not to go to court or else” Ricardo would “have the homeboystake care of” her. (RT 1291.) 4. Telephone And Jail Records Of Appellant’s Whereabouts Christopher Larson, a paralegal in the Los Angeles County District Attorney’s Office, examined records relating to appellant’s whereabouts within the jail system in March and April of 1996. He cross-referenced these records with telephonerecords for appellant's residence, Ramirez’s residence, and the county jail. (RT 1995-1996.) On March 26, 1996, there was a six-minute call at 3:29 p.m. from a location where appellant was housed to Ramirez’s residence. Another call was made on March 27, the day before appellant’s preliminary hearing, to Ramirez’s residence. On March 29, there was a 10-minute call from a location where appellant was housed to Ramirez’s residence. (RT 1999-2006.) ~ On April 10, the following calls were made from thejail facility where appellant was housedto appellant’s residence: a three-minutecall at 9:36 a.m.; a 30-minute call at 1:17 p.m.; a 24-minutecall at 1:56 p.m.; an eight-minutecall at 3:28 p.m.; a 26-minute call at 4:49 p.m.; a six-minutecall at 6:26 p.m.; a 13- minute call at 7:10 p.m.; and a 58-minute call at 11:59 p.m. (RT 2007-2009.) On April 11, a date on which appellant had a court appearancein his kidnapping case, the following calls were made from locations in which appellant was housedto appellant’s residence: call at 8:30 a.m.; a 20-minute call at 11:15 a.m.; a 32-minute call at 2:38 p.m.; and a 33-minute call at 5:16 p.m. (RT 2010-2012.) On April 12, the following calls were made from appellant’s location in jail to his residence: a 29-minutecall at 12:12 p.m.; a four-minutecall at 5:12 p.m.; and a four-minutecall at 8:51 p.m. (RT 2012-2013.) 12 On April 13, the following calls were made to appellant’s residence from a location where hewas housed: a 19-minute call at 9:45 a.m.; a three-minute call at 10:45 a.m.; a 28-minute call at 1:31 p.m.; and a 46-minute call at 5:01 p.m. (RT 2014-2015.) B. Defense Evidence On March 13, 1996, Melinda and appellant went to appellant’s home and saw appellant’s mother, Rosario Hernandez. Melinda did not appear frightened and did not have any injuries on her neck. (RT 2116-2119.) Melinda did not complain to Rosario about any injuries. (RT 2120.) Melinda and appellant said they were going to go to Mexico because appellant had a warrant and wanted to avoid the authorities. (RT 2129, 2134-2135.) They also were going so they could get married. (RT 2135-2136.) ~— After leaving Rosario’s home, appellant and Melinda wentto the home of appellant’s aunt, Maria Hernandez. (RT 2143-2144, 2147, 2184-2185.) They stayed at Maria’s home for approximately one to two hours. Melinda did not appearto be frightened. Melindaalso did not have any noticeable injuries on her neck. Maria convinced appellant and Melindato not go to Mexico. (RT 2148, 2150-2152.) James Murphy,Maria’s husband, drove appellant and Melindato a location nearthe intersection ofVan Nuys Boulevard and Roscoe Boulevard. During the ride, Melinda did not appearto be frightened and did not appear to be injured. (RT 2183-2188.) A portion of Ramon Ramos’s preliminary hearing testimony was read to the jury. (RT 2232.) Ramos was a memberof the Parthenia Street gang when Melinda was killed. He went with Melinda onherfirst trip to the liquor store after she arrived at the alley on the evening she waskilled. Ricardo drank 14. Murphy had prior convictions for grand theft auto in 1993, and attempted robbery and assault with a deadly weapon in 1980. (RT 2192.) 13 some of the beer that was purchasedat the liquor store. Ramossaid he and Melinda wentto the liquor store for the second time approximately one hour later. (RT 2236-2240.) Ramos saw Ricardo and Melinda speaking with eachotherfor five to ten minutes with raised voices before the shooting. (RT 2243-2244.) After Ricardo shot Melinda, he put the gun to his head and clicked it. (RT 2245.) Appellantsaid,“It’s for my carnal.” (RT 2249.) “Carnal” is a Spanish slang term that means “brother.” (RT 2250-2251.) C. Rebuttal Evidence Lawrence Torres was one of Melinda’s school teachers. (RT 2252- 2253.) Torres met with Melinda on March 15, 1996. (RT 2254.) Melindatold Torresthat appellant had broken into her houseandtold herthatifhe could not have her nobody could. Melinda described how appellant had held a knife to her neck, dragged her out of her home, and drove her to his aunt’s house. ~ Melinda told Torres she had endedherrelationship with appellant. She further stated that appellant had been calling her, but she was not returning thecalls. (RT 2255.) Susan Carmody, Melinda’s mother,testified that Melinda ran away from home in March of 1995. Melinda went to live with appellant. Melinda returned homein Septemberof 1995. (RT 2260-2263.) On March 13, 1996, Ms. Carmodyreceived a telephonecall from Melinda and went home. Melinda had injuries to her neck. The police arrived soon afterward. (RT 2264-2265.) After Melinda’s death, Ms. Carmody found Melinda’s diary. (RT 2266.) On one page of the diary, Melinda wrote, “Bird broke in and stabbed me and 14 choked me and kidnapped [sic] me. Went to police station. Went to Grandma’s.” (RT 2268.) II. Penalty Phase Evidence A. Prosecution Evidence 1. Evidence Of Other Crimes On July 11, 1997, appellant wentto the infirmary at the North County Correctional Facility following an altercation with a fellow inmate. (RT 2786- 2787, 2801-2802.) Despite signs on the wall stating “no talking,” appellant was talking to another inmate. Los Angeles County Sheriff's Deputy Natalie Romo told appellant to stop talking. (RT 2788, 2802.) Los Angeles County Sheriff’s Deputy Angela Perez got some handcuffs out in preparation for transporting appellant. Appellant stated, “Fuck you,I ain’t going to the hole.” (RT 2790- 2791, 2802.) When Deputy Perez tried to handcuff appellant, appellant tried to elbow her in the face and then tried to punch herin the face. A struggle ensued, with appellant kicking Deputy Perez in the shin. Other deputies arrived, and appellant was eventually restrained, despite his continued efforts to resist the deputies’ authority. Deputy Perez suffered swelling and a scratch to her leg, and bruising on her arm where appellant had struck her. (RT 2793- 2796, 2803-2804.) 2. Victim Impact Evidence a. Susan Carmody Susan Carmody was Melinda’s mother. They hada closerelationship, despite some problems experiencedin the past. Their relationship had become 15. “Bird” was appellant’s nickname. (RT 1149.) 15 strained while Melinda wasnotliving at home,although they continuedto see each other during that time period. Since Melinda had returned home,“things were going pretty good.” They were going to group therapy fortroubled girls and runaways. (RT 2820-2822.) WhenMelinda died, Carmody’s “whole world stopped.” She no longer wantedto live in the condominium she had shared with Melinda. She had been going to weekly counseling sessions since Melinda’s death. She did not feel that she could be “put back together again” andfelt that “the void will always be there.” (RT 2823-2825.) Every day wasa struggle to stay alive. If not for her son, she would “already be goneto join [Melinda].” (RT 2825.) b. Dee Carmody Dee Carmody was Melinda’s stepmother. Dee had a close relationship with Melinda and loved her very much. Dee had seven children in addition to Melinda and Melinda’s brother. Melinda had a very closerelationship with her siblings. Melinda’s death devastated their family. (RT 2807-2808.) Dee described holidays as “impossible” since Melinda used to be with them on holidays. They now goto the cemetery on holidays instead oftrying to have fun. Melinda’s death affected Dee’s relationship with her other children becausesheis afraid to let them out of her sight. (RT 2811.) Melinda had talked about working in the neonatal field because she loved babies. (RT 2812.) Melinda had a new baby sister who was seven months old when Melinda died. (RT 2808.) Dee had looked forward to Melinda growing up, going to school, and someday having her own children. (RT 2812.) c. Edna Steffen Edna Steffen was Melinda’s maternal grandmother. They had a very close relationship before Melinda’s death. Melinda had enjoyed baking cakes for Steffen’s husband. Melinda and Steffen joked around and went shopping 16 together. Melinda came to Steffen with her problems and confided in her. Melinda had told Steffen about her plan to break up with appellant when the time was right. (RT 2814-2817.) Melinda’s death had destroyed Steffen’s family. Steffen’s daughter (Melinda’s mother) was under a doctor’s care. Steffen was unable to take away her daughter’s pain. Steffen constantly thought about Melinda’s death. She wasobsessed with thoughts of revenge, which troubled her, because she was not a vengeful or violent person. Steffen occasionally required medication in order to sleep. (RT 2818-2819.) B. Defense Evidence Appellant did not present any evidenceat the penalty phase. (See RT 2831.) , 17 ARGUMENT I. THE TRIAL COURT DID NOTERRIN LIMITING VOIR DIRE OF PROSPECTIVE JURORS Appellant contendsthe trial court improperly limited voir dire on the issue ofracial prejudice, in violation ofhis state and federal constitutional nghts to due process, to a fair and impartial jury, andto a reliable verdictin a capital. case. (AOB 16-24.) Respondent submits the trial court properly conducted voir dire. A. The Relevant Proceedings Below The prospective jurors completed written questionnaires, which all counsel had participated in drafting. (See CT 1243-4955; RT 77-78, 92-93, 105-106.) Before voir dire began, the trial court explained to counsel that it would ask the majority ofvoir dire questions ofthe prospective jurors. Thetrial court stated that the questions would be based on answers given by the prospective jurors in their questionnaires. Thetrial court informed counselthat they could provide the court with additional questions to be asked, and that counsel may be allowed to ask a few questions on their own. The court stated that a portion ofthe voir dire would be conducted ofthejurors on an individual- basis. (RT 100.) Regarding the issue of racial bias on the jury questionnaire, the following discussion occurred: [APPELLANT’S COUNSEL]: Let’s go backto the bias questions. I think- - | THE COURT: At what page are we now? [APPELLANT’S COUNSEL]: Page 19, your Honor. Question 92. THE COURT: Right. 18 [APPELLANT’S COUNSEL]: Wefelt that the question was important because we believe that the testimony will indicate that perhaps the motivation, some of the motivation or perhaps someofthe testimony will reflect problems with racial discrimination amongst the various witnesses and sides here, and we thought it important to have some questions whether they have been exposed to such problems. THE COURT: I would not have an objection to Question 92 asit standsif it does not have the various sections below for them to use. I would suggest that it be: Ifyou believe that racial discrimination against Latino / Mexican-Americans in Southern California is a problem, please describe the problem as youseeit. [APPELLANT’S COUNSEL]: That would be agreeable, your Honor. | (RT 112.) Thejury questionnaire also included the following additional questions addressing the subject ofrace: 83. You must use the same standards (which will be given to you by the court) to judge all witnesses’ credibility regardless of their occupation, lifestyle, race, ethnic background, language, sex, or sexual orientation. If you do not believe you can do this, or if you believe it would be difficult for you to do so, please set forth your thoughts aboutthis. 16. In the questionnaire submitted to the jurors, this was Question 86. (See CT 868.) 19 87. Have you ever been afraid of another person because of their race? Yes ___No [9] If yes, what was the circumstance? 88. Are you a memberofanyprivate club,civic, professional or fraternal organization which limits its membership on the basis of race, ethnic origin, sex or religious convictions? ___ Yes ___No [§] If yes, please identify the club(s) or organization(s){.] (CT 867-868.) Before voir dire began, the trial court informed counsel thatit did not intend to ask any follow-up questionsto the “question about racial prejudice.” Specifically, the trial court stated as follows: I noticed in reading the questionnaires, as I’m confident you did as well, that a number of people did not respond to the question about racial prejudice. I don’t have any intention of following up on that question, ladies and gentlemen. I was pleased to have you askit so that if somebody did respond, you would havethe benefit oftheir responses. In some of those responses, some showed a great sensitivity to the question, others showedless than great sensitivity to the question. For other people it was apparently something they had a ready answerto, and that suggests perhaps something about them one wayor the other as any person would choose to infer; but inasmuch as the non-Hispanic whois part of the information before the court goes,thatis, the alleged victim, she is the only non-Hispanic, I believe, with respect to the charges themselves, and there does not seem to have been any kind of discriminatory prosecution here. I mean it’s a simple and regular 20 charging; and so if those people did not answerthat, I do not intend to go over that subject matter. (RT 275-276.) Ricardo’s counsel objected on herclient’s behalf “both on his federal and state constitutional grounds.” Appellant’s counsel joinedin the objection. (RT 276.) B. Appellant’s Claim Has Been Waived In order to preserve a claim for purposes of appeal, a defendant must object in the trial court on the same grounds urged on appeal. (See Peoplev. Fierro (1991) 1 Cal.4th 173, 209 [defense counsel’s objection to prosecutor’s voir dire question on groundsthat he did not understand the question did not preserve appellate claim that the question asked the jurors to prejudge the defendant’s guilt]; see also People v. Heard (2003) 31 Cal.4th 946, 972,fn. 12 [appellant’s claim of violation of constitutional rights raised for first time on appeal not preserved for review]; People v. Memro (1995) 11 Cal.4th 786, 867: [same]).) In People v. Staten (2000) 24 Cal.4th 434, this Court found that where a defense attorney participated in drafting the jury questionnaire, which included questions onracial bias, the defendant waived anyclaim that there was an inadequate voirdire on racial prejudice. (/d. at p. 452.) Here, appellant claims on appealthatthe trial court’s decision to exclude questions about racial prejudice violated his federal and state constitutional rights to due process, his right to a fair and impartial jury, and his right to a reliable verdict in a capital case. (AOB 16-17.) However, appellant did not object on these groundsin the trial court. Instead, he objected that the trial court’s decision not to ask follow-up questions on one of the questions in the written questionnaire violated unspecified “federal and state constitutional grounds.” (RT 276.) Because appellant did not specify in the trial court the 21 alleged constitutional violations which he now identifies for the first time on appeal, his claims have been waived. (See People v. Fierro, supra, 1 Cal.4th at p. 209. C. The Voir Dire Was Proper Even assuming appellant’s claim has been properly preserved for appellate review,it lacks merit. The scopeofthe inquiry permitted during voir dire is committed to the discretion of the trial court. (People v. Lucas (1995) 12 Cal.4th 415, 479.) Appellate courts recognize the considerable discretion of the trial court to contain voir dire within reasonable limits. (/d. at p. 479.) A trial court’s limitations are reviewed for an abuse of discretion. (People v. Sanders (1995) 11 Cal.4th 475, 539.) In a capital case, a defendantis entitled to voir dire on the subject of racial prejudice upon request.” However,thetrial court retains discretion as to the form and numberofquestions, and whetherto question the prospective jurors collectively or individually. (Turner v. Murray (1986) 476 U.S. 28, 37 [106 S.Ct. 1683, 90 L.Ed.2d 27].) In People v. Roldan (2005) 35 Cal.4th 646, the defendant in a capital case claimed on appeal that the trial court failed to adequately question the prospective jurors on whetherracial prejudice might affect their impartiality. The jury questionnaire in Roldan included the following question: ““‘A part(ies), attorney(s) or witness(es) may comefrom a particularnational, racial or religious group orhasa life style different from your own. Wouldthat fact affect yourjudgmentor the weight and credibility you would giveto his or her 3999testimony.’” (/d. at p. 695.) In rejecting the claim of inadequate voir dire on appeal, this Court emphasized that the trial court retains discretion as to the form and mannerofquestioning on voir dire. (/d. at pp. 695-696,citing Turner v. Murray, supra, 476 U.S.at p. 37.) This Court concluded, 22 Because defendant does not explain how the jury questionnaire was inadequateto reveal hidden racial discrimination amongthe jurors, and because it appears he had sufficient information to intelligently exercise his challenges, we find the trial court did not abuse its discretion by relying on the jury questionnaire to addressthe issue ofpossible racial bias amongthe prospective jurors. (People v. Roldan, supra, 35 Cal.4th at pp. 695-696.) In the instant case, the jury questionnaire included several questions aimed at exposing racial bias. For example, in Question 83, the prospective jurors were informed that they must use the same standards to judgeall witnesses’ credibility, regardless of their occupation, lifestyle, race, ethnic background, language, sex, or sexual orientation. The prospective jurors were then asked whetherthey believed they could notdo this or whetherit would be difficult to do so. (CT 867.) In Question 86, the prospective jurors were asked whetherthey believed there wasracial discrimination against “Latino/Mexican- Americans in Southern California” andif“yes,” to describe the problem as they saw it. (CT 868.) In Question 87, the prospective jurors were askedifthey had ever been afraid of another person because oftheir race. (CT 868.) Finally, in Question 88, prospective jurors were asked whether they were membersofany private organization which limited its membership onthe basis ofrace, ethnic origin, sex, or religious convictions. (CT 868.) As in Roldan, appellant fails to explain whythe jury questionnaire did not sufficiently explore the issue of racial prejudice. Nor does he suggest what follow-up questions should have been asked, or which prospective jurors should have been further questioned” 17. Appellant identifies only potential Juror No. 7813, who wrote, “Tt appears that as a race they [Hispanics] are involved in moreofthe day to day crimes than other races,” and “Mexicans and blacks appear to me to be more violent and threatening.” (AOB 21, fn. 10; CT 3322.) Appellant notes that the trial court did not ask any follow-up questions on this subject. (AOB 21, fn. 10; 23 Because the jury questionnaire adequately addressed the subject of racial prejudice, appellant’s claim should berejected. Il. THE TRIAL COURT PROPERLY DENIED APPELLANT’S WHEELER MOTION Appellant, who is of“Mexican descent, contends that the trial court prejudicially erred by denying his motion under People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), which was made onthe groundthat the prosecution had exercised a peremptory challenge against prospective juror 9877, an African American woman. Specifically, appellant contends the trial court erred in finding there was no primafacie showingofgroup bias. Moreover,although the trial court found that appellant had not made a prima facie case but allowed the prosecutor to provide a justification for the challenge, appellant contends the prosecutor’s stated reason for excusing prospective juror 9877 was not supported by the record. (AOB 25-33.) Appellant’s contentions are meritless. Thetrial court properly denied appellant’s Wheeler motion because appellant failed to establish a primafacie case of discrimination. Further, the prosecutor’s stated reason for exercising the challenge was supported bythe record. A. The Relevant Proceedings Below The prospective jurors completed written questionnaires, which all counsel had participated in drafting. (See CT 1243-4955; RT 77-78, 92-93, 105-106.) The trial court then conducted the majority ofvoir dire questioning, RT 470-475.) However, this potential juror was excused for cause upon the request of appellant and his co-defendant (see RT 470, 483), so it is unclear whyfurther questioning was necessary. 24 based primarily on the answers given in the questionnaires. Counsel for each party was given the opportunity to submit additional questions to be asked by the court of the prospective jurors. The prosecutor used his fifth peremptory challenge to excuse prospective juror 9877. Appellant’s counsel lodged a Wheeler objection. He stated that the prosecutor had used a peremptory challenge against an African-American male the previous day, and after using a peremptory challenge against prospective juror 9877, an African-American female, there were no remaining African Americans in the entire jury pool. ppellant’s counsel observedthat the prosecutor had not challengedeither of the two African-American prospective jurors for cause. (RT 488-489.) He further noted with respect to prospective juror 9877, she seems otherwise qualified. She has priorjury experience, including sitting on a jury in a murdercase, indicated in her questionnaire she could personally impose the death penalty if it was appropmiate, and [appellant] therefore makes this Wheeler motion on the basis of discriminatory peremptory challenge. (RT 489.) Thetrial court respondedas follows: Okay. I’m thinking,as I recollect her, that perhaps it is something other than direct answers to questions. I do note that she had a friend who wasa victim of a 187 [murder]. She was a witness in that matter. I think she said a numberofyears ago, so that may have had something to do with it. I have noted aboutthis particular person that she doesn’t seem to be quite tuned in sometimes, and I’m understanding that might be because ofsomeinformationthat I have that counsel don’t have becauseit’s not on the record. 25 Myclerk, Ms. Arredondo,told me that [prospective juror 9877] is coming to court in the daytime and workingtheshift - - the swing shift at night so that she’s in court all day and working during the night. | noticed when she wassitting in the audience when weoriginally met her, she seemed to be behaving in a relatively unusual kind of way, leaning overher seat, not tuningin and payingattention to what we were doing. She hadto leave once during the proceedings, as you mayrecall, and I can’t say that that’s what the exercise was based on, but it would certainly appear to me from whatshe said and from the information,that might explain her what I would call relatively noticeable conduct in court, that perhaps added together, that was sufficient. I would certainly accept it as so. And while I don’t find a primafacie case shown, [prosecutor], for purpose ofreview of any court of appeal, should there ever be occasion for such a review, you maystate yourposition for the record, please. (RT 489-490.) The following exchange ensued: [PROSECUTOR]: Your honor,I - - ifthe court has invited me to do so, I will just state - - I don’t - - I personally - - I must say I personally find these motionsoffensive, butIjust for - - whether they have to make arecord or not, I don’t know. However,I think there was quite enough evidence in the way- - in the uncandid manner she answeredparticularly on her jury experienceto justify my exercise of a peremptory. THE COURT:Soit’s basically on her remarks concerning that? [PROSECUTOR]: Yes. (RT 490-491.) Codefendant Ricardo’s counsel objectedto thetrial court “providing its own observations for [the prosecutor’s} challenge for cause.” The trial court 26 replied that it had followed the applicable law regarding Wheeler motions. Ricardo’s counsel further stated, _ Your honor, I would also indicate to the court that I don’t think,just in responseto [the prosecutor’s] statement, that because of the less than candid way she answered her question regarding herjury service- - I would disagree with that for the record. (RT 491.) Thetrial court responded, “If it might be for cause, I would certainly disagree as well, but it’s not for cause. It’s peremptory and it is sufficient reason.” (RT 492.) Regarding prior jury service, prospective juror 9877 wrote in her questionnaire that in 1985, she had served as a juror in a murder case. She indicated that a verdict had been reached. She answered that she voted with the minority. She also stated that as an alternate, she believed her decision would have been the sameas the one reached by the majority. (CT 4484.) When the trial court questioned prospective juror 9877 individually, the court askedif there were any corrections that needed to be made to her questionnaire. Prospective juror 9877 respondedthat regarding priorjury experience on page eight, question 41, she had mistakenly written that a verdict had been reached, whenin fact, there had been a hung jury. (RT 416.) The following exchange ensued: THE COURT: Okay. This wasa case that took place about 1990? [PROSPECTIVE JUROR9877]: Right. THE COURT: Okay. And you put- - you were with the majority, is that your recollection, as you look back in time? [PROSPECTIVE JUROR 9877]: No, the minority. THE COURT: You voted with the minority. Thank you for the correction. [§] Anything further? 27 [PROSPECTIVE JUROR 9877]: No. THE COURT:Is there anything further about you that I should know outside ofwhat’s been in the questionnaire that you think would be helpful? I can talk with you publiclyorprivately,if there is. [PROSPECTIVE JUROR 9877]: No, your honor. THE COURT: Youservedas a juror, perhaps as an alternate, I’m not sure, in 1985 on a homicide case? [PROSPECTIVE JUROR 9877]: Alternate, yes. ~ THE COURT: You were the alternate? [PROSPECTIVE JUROR 9877]: Yes. THE COURT: Can youset aside whatever you might recall from ' that past experience and look at this case all on its own with what’s presented here. [§] In other words, you’ll set that aside entirely; you won’t discuss that matter with anyoneelse; you’ll just look at this case? | [PROSPECTIVE JUROR 9877]: That is correct. (RT 417-418.) Whenthe court later asked whether counsel had any additional areas of inquiry with respect to prospective juror 9877, the prosecutor asked, “[A]m I to understand there was only one prior jury experience?” (RT 422.) Prospective juror 9877 replied, “That’s correct.” The court then added, “And the jury did not return a verdict. It came back hung. She waswith the minority; anything further?” (RT 423.) B. The Trial Court Properly Determined That Appellant Had Failed To Show A Prima Facie Case Of Group Bias In The Use Of Peremptory Challenges Exercising peremptory challenges because of group bias violates the California and the United States Constitutions. (People v. Cornwell (2005) 37 28 Cal.4th 50, 66.) The United States Supreme Court has reiterated the applicable principles regarding the discriminatory use ofperemptory challenges as follows: . | “First, the defendant must makeouta prima facie case by ‘showingthat the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citations.] Second, once the defendant has made out a primafacie case, the ‘burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes. [Citations.] Third, ‘[i]f a race-neutral explanation is tendered,the trial court must then decide . .. whether the opponent of the strike has proved purposeful racial discrimination.’ [Citation.]” (People v. Cornwell, supra, 37 Cal.4th at pp. 66-67, quoting Johnson v. California (2005) SUS. [125 S.Ct. 2410, 2416, 162 L.Ed.2d 129].) In determining whether a primafacie case is established, this Court previously held the applicable standard is whether there was a showing of a strong likelihood that the juror was challenged for group bias. (People v. Wheeler, supra, 22 Cal.3d at p. 280.) However, under Batson v. Kentucky, supra, 476 U.S. at pp. 96-97, the applicable standard is whether the circumstances of the challenge raised an inference that the challenge was racially motivated. (See Tolbert v. Gomez (9th Cir. 1999) 190 F.3d 985, 988.) This Court had previously held that both tests were consistentin that there must be a showing the challenge was “more likely than not” racially motivated. (People v. Johnson (2003) 30 Cal.4th 1302, 1328.) Ultimately, on June 13, 18. Although appellant did not specifically invoke Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L-Ed.2d 69] in his objectionattrial, this Court has recognized that an objection under Wheeler preserves a federal constitutional objection because the legalprinciple that is applied is ultimately the same. (See People v. Yeoman (2003) 31 Cal.4th 93, 117.) 29 2005, the United States Supreme Court resolved the issue by rejecting the | “more likely than not” standard and deciding a primafacie caseis established if the totality of the relevant facts give “rise to an inference of discriminatory purpose.” (Johnsonv. California, supra, 125 §.Ct. at p. 2417.) In determining whetherthere is a primafacie case of group bias, the reviewing court should considerthe entire recordofvoir dire ofthe challengedjurors. (People v. Gray (2005) 37 Cal.4th 168, 186.) Here, defense counsel’s Wheeler motion was based on the excusal of prospective juror 9877, the second of only two African Americans in the venire.” (RT 488-489.) Thetrial court did notindicate the standard used in determining that appellant’s counsel had not stated a primafacie case of race- based discrimination. (RT 489-490.) Accordingly, this Court must review the record and apply the appropriate standard set forth in Johnson v. California to determine the legal question whether the record supports an inference that the prosecutor excused ajuroron the basis ofrace. (See People v. Cornwell, supra, 37 Cal.4th at p. 73.) A review of the record in this case demonstrates that appellant’s counsel did not make a sufficient showing to establish an inference” of a discriminatory purpose. 19. Appellant’s counsel did not object to the dismissal of prospective juror 6842, who wasthe first African-American prospective juror excused by the prosecutor via a peremptory challenge. (See RT 488; CT 2139-2168.) Prospective juror 6842 indicated in his questionnaire that he had been convicted of a firearm offense in 1996 andthat his driver’s license had been suspended. (CT 2149.) During the court’s voir dire questioning, he addedthat he had also been convicted of a drug-related offense. (RT 386-391.) 20. In Johnson, the United States Supreme Court defined “inference” as a “conclusion reached by considering other facts and deducing logical consequence for them.” (Johnson v. California, supra, 125 S.Ct. at p. 2416,fn. 4.) 30 The record demonstrates that there were very obvious reasons to excuse both African American prospective jurors for reasons other than race. Prospective juror 9877 had previously served as an alternate juror in a murder case whichresulted in a hung jury, and she indicated on her questionnaire that she would have voted with the minority. (CT 4484; see also RT 417.) This fact alone would have madeher undesirable to any prosecutor and constituted a valid race-neutral basis for her excusal. (See, e.g., People v. Ayala (2000) 24 Cal.4th 243, 266 [prosecutor properly exercised peremptory challenge against juror whohad been a holdout for acquittal in a previous jury].) Furthermore, the trial court described prospective juror 9877’s “unusual” and “very noticeable” behavior during voir dire proceedings. Specifically, the trial court remarked that during voir dire proceedings, prospective juror: 9877 was “behavingin a relatively unusual kind ofway, leaning overherseat, not tuning in and payingattention to what we were doing.” Thetrial court also noted that prospective juror 9877 had to leave the courtroom at one point during the proceedings. (RT 490.) Thus, prospective juror 9877’s noticeable inattentiveness provided an another race-neutral reason for excusing her. (See United States v. Power (9th Cir. 1989) 881 F.2d 733, 740.) Although appellant does not directly challenge the prosecutor’s decision to use a peremptory challenge on prospective juror 6842, the first African- American prospective juror excused by the prosecutor, there were very clear reasons for his excusal as well. Prospective juror 6842 indicated in his questionnaire that he had been convicted ofa firearm offense in 1996 andthat he had spenttimein jail or prison. Healso indicated that his driver’s license had been suspended. (CT 2149.) When questionedin private by the judge, he added that he hadalso been arrested in 1992 in a “sweep”or a “drug raid”for a cocaine-related charge. (RT 386-387.) He further explainedthathis firearm offense was possession of a loaded weapon. Hestated that he had traded cars 31 with someone and did not know the firearm was present. Nevertheless, he entered into a plea disposition. (RT 390.) Due to prospective juror 6842’s prior arrests, the prosecutor had a valid race-neutral reason for excusing him (see People v. Panah (2005) 35 Cal.4th 395, 442; People v. Wheeler, supra, 22 Cal.3d at p. 277, fn. 18), and appellant does not attempt to argue otherwise. Basedonthe very strong and obviousrace-neutral reasons for excusing © both African-American prospective jurors in this case, the record is insufficient to support an inference that the prosecutor excused any juror on the basis of race. (See People v. Smith (2005) 35 Cal.4th 334, 346-348 & fn. 3 [no inference of discrimination when one peremptory challenge was used against an African-American juror who acknowledged feeling sympathy for the defendant and another peremptory challenge was used against an African- American prospective juror who opposed the death penalty].) In this respect, the instant case is distinguishable from Johnson v. California. In Johnson, a jury found the defendant, an African-American male, guilty of second degree murder and assault in a California trial court. During jury selection, after several prospective jurors were removed for cause, forty-three eligible prospective jurors remained. Of the remaining prospective jurors, only three were African-American. The prosecutor used three of his twelve peremptory challenges to remove the African-American prospective jurors. The empaneled jurors and alternates forthe trial all were white. (Johnsonv. California, supra, 125 S.Ct. at p. 2414.) After the prosecutor had used a peremptory challenge as to the second of the three prospective African-American jurors in Johnson, the defense objected that the prosecutor was using race as a basis for the peremptory challenges in violation of the United States and California Constitutions. (Johnson v. California, supra, 125 S. Ct. at p. 2414.) Relying on Peoplev. Wheeler, supra, 22 Cal.3d at p. 258, the trial court overruledthe objection 32 without asking the prosecutor to explain the reason for his challenge, finding that there was no strong likelihood that the exercise of the peremptory challenges were based on race. Thetrial court warned the prosecutorthat “we are very close.” (Johnson v. California, supra, 125 S. Ct. at pp. 2414-2415.) When the prosecutor exercised the peremptory challenge as to the remaining prospective African-Americanjuror, the defense again objected. The trial court again overruled the objection without asking the prosecutor to explain the reason for the challenge. The trial court explained that its own examination of the record showed that the peremptory challenges could be justified by race-neutral reasons. The trial court also opinedthat the prospective African-American jurors offered equivocal or confused answers on the jury questionnaires. Therefore, the trial court found that no primafacie case of discrimination had been established. (Johnson v. California; supra, 125 S. Ct. at pp. 2414-2415.) Noting thetrial court’s commentthat“we are very close,” and this Court’s acknowledgmentthat “it certainly looks suspicious thatall three African-American prospective jurors were removed from the jury,” the Supreme Court. found the inferences that discrimination may have occurred were sufficient to establish a prima facie case of race-based discrimination. (Johnson v. California, supra, 125 S.Ct. at p. 2419.) In contrast to Johnson, in the instant case, there were such obviousrace- neutral reasons for any prosecutor to excuse both African-American prospective Jurors that there was no reasonto find the challenges to be a “close call” or “suspicious.” Accordingly, Johnson is distinguishable and appellant’s claim that the trial court erred in failing to find a prima facie case of discrimination should be rejected. 33 C. Even IfThe Trial Court Should Have Made A Finding OfA Prima Facie Showing, Appellant’s Contention Fails Because Race-Neutral Reasons Supported The Exercise Of The Peremptory Challenge In any event, appellant’s contention fails even if this Court finds that appellant made a prima facie showing of group bias in the exercise of the prosecution’s peremptory challenges. Ifthetrial court has found a prima facie case ofgroup bias, then the prosecutor must state adequate, race-neutral reasons for the peremptory challenges. (People v. Alvarez (1996) 14 Cal.4th 155, 197.) These reasons mustrelate to the particular individual jurors andto the caseat issue. (Ibid.) “‘[T]he prosecutor’s explanation need not rise to the level justifying exercise of a challenge for cause.’” (People v. Williams (1997) 16 Cal.4th 635, 664, quoting Batson, supra, 476 U.S. at p. 97.) “Rather, adequate justification by the prosecutor may be no more than a ‘hunch’ about the prospective juror [citation omitted], so long as it shows that the peremptory challenges were exercised for reasons other than impermissible group bias.” (People v. Williams, supra, 16 Cal.Ath at p. 664.) Appellantasserts that the trial court “disagreed” with the prosecutor’s assessment of prospective juror 9877 not being candid about her answers concerning prior jury service. (AOB 30.) Heis incorrect. The trial court observedthat although the prosecutor’s stated reason wasinsufficient to excuse the prospective juror for cause, it was a sufficient reason for exercising a peremptory challenge. (RT 492.) A trial court is not required to make detailed comments on the record in accepting the prosecutor’s reasons as genuine. (People v. Reynoso (2003) 31 Cal.4th 903, 919.) A trial court’s proper focus is on whether the prosecutor’s stated reasons are genuine, not whetherthey are objectively reasonable. (/d. at p. 924, citing Purkett v. Elem (1995) 514 USS. 765, 769 [115 S.Ct. 1769, 131 L.Ed.2d 834].) In concluding that the prosecutor’s stated reason for excusing prospective juror 9877 wasa “sufficient reason” for exercising a peremptory challenge,thetrial court implicitly found 34 that the reason was genuine. (See People v. Alvarez, supra, 14 Cal.4th at pp. 197-198.) Furthermore, there was substantial evidence supportingthe trial court’s finding that the prosecutor’s stated reason was genuine. The prosecutor explained that the peremptory challenge of prospective juror 9877 was prompted by “the uncandid manner she answered particularly on her jury experience.” (RT 490-491.) The answers given on prospective juror 9877’s questionnaire regarding prior jury service were internally inconsistent. She listed only a 1985 murder case and wrote that a verdict had been reached. Yet, she also stated on the questionnaire that she had voted with the minority. She further indicated that as an alternate, she believed her decision would have been the sameas that reached by the majority. (CT 4484.) When asked whether she had any corrections to the questionnaire, prospective juror9877 informed the court that her answer to question 41 (the question on prior jury service) was incorrect. She stated that there was no verdict reached because there was a hung jury. (RT 416.) The court asked whether this wasa case that took place “about 1990?” and prospective juror 9877 replied affirmatively. The court asked, “Okay. And youput - - you were with the majority, is that your recollection, as you look back in time?” Prospective juror 9877 replied, “No, the minority.” The court stated, “You voted with the minority. Thank you for that correction.”*” (RT 416-417.) 21. Although the trial court described voting with the minority as a “correction,” prospective juror 9877’s questionnaire actually reflected that she had voted with the minority rather than the majority (although she also stated that as an alternate, she believed her decision would have been the sameasthat reached by the majority). (CT 4484) It is possible that the trial court confused prospective juror 9877 with prospective juror 7228,asthe two shared the same last name. (See RT 421; CT 3967, 4477.) Further evidencethat thetrial court may have confused the two prospective jurors sharing the same last name includes the fact that in prospective juror 7228’s jury questionnaire, he listed the year he served on a criminal jury as “about 1990” (CT 3974) which wasthe 35 The court later asked prospective juror 9877, “You servedas juror, perhapsas analternate,I’m not sure, in 1985 on a homicide case?” Prospective juror 9877 confirmedthat she hadserved as an alternatein that case, but she did not explain that this was the samecase she had been discussing before when the court had just asked about her service in a case in “about 1990.” Seeking clarification, the prosecutor subsequently asked whether there had been only onepriorjury service, and prospective jurorreplied, “That’s correct.” (RT 422- 423.) The above record supports the prosecutor’s beliefthat prospective juror 9877 was being less than candid in her answers. There may have been some confusion onthetrial court’s behalf, as prospective juror 9877 was asked about prior jury service in “about 1990” as well as her service as an alternate in a homicide case in 1985. Nevertheless, prospective juror 9877 did nothing to affirmatively clarify that these two separate lines of inquiry posed bythe court actually involved only one term ofpriorjury service. Whenthe court statedits understanding that prospective juror 9877 had “voted” with the minority, this could not have been true, since an alternate never would have voted. Yet, prospective juror 9877 did not attemptto clarify this point. Moreover, even appellant remains confused about the numberoftimes prospective juror 9877 previously served on a jury. He asserts, “Indeed, the potential jurorclarified her questionnaire to indicate that a verdict had not been | reached when she served as a jurorin a petty theft trial in 1985, but she had servedas an alternate juror on a homicide case and agreed with the verdict that was reached.” (AOB30,citing RT 416, CT 4484.) Yet, when the prosecutor soughtto clarify the issue, prospective juror 9877 agreed that there had only exact language used by the court when questioning prospective juror 9877 about her jury service (see RT 417), even though she hadlisted her prior jury service as occurring in 1985 (see CT 4484). 36 been onepriorjury experience. Thetrial court then summarized, “And the jury did not return a verdict. It came back hung. She was with the majority... .” (RT 422-423.) Thus, even appellant’s present understanding of prospective juror 9877’spriorjury experienceis at odds with the answers provided on voir dire and with the trial court’s understanding of those answers. Atthe very least, prospective juror 9877 gave confusing responsesto the questions aboutprior jury experience. Additional questioning failed to fully clarify the issue. Whenthe trial court asked prospective juror 9877 about her jury experienceas an alternate in a 1985 homicide, after the court hadjust asked her about jury service in a case in “about 1990,” it would have been an appropriate time for her to explain that there had only beena single prior jury experience. Yet, prospective juror 9877 failed to provide this clarification. Accordingly,the trial court’s implicit finding that the prosecutor’s stated reason for excusing prospective juror 9877 was genuine was supported bythe record. (See People v. Alvarez, supra, 14 Cal.4th at pp. 197-198.) Appellant is not entitled to reversal. Il. APPELLANT WAS NOT DENIED HIS RIGHT TO BE PRESENT Appellant argues his absence from certain chambers conferences during voir dire deprived him of meaningful participation during the jury selection process and thereby a reliable determination of guilt, death eligibility, and penalty. Accordingly, appellant maintains his absence from the chambers conferences: (1) denied him ofhis statutory right under section 977 to be present at all proceedings; and (2) denied him of his state and federal constitutional nghts to due process and trial byjury (U.S. Const., 6th and 14th Amends.; Cal. Const., art. I, §§ 7, 15, and 16). Appellant maintains he need not 37 demonstrate prejudice since his absence from the chambers conferences affected the integrity of the trial and requires an automatic reversal. In the alternative, he argues any error was not harmless beyond a reasonable doubt under the Chapman™standard. (AOB 34-40.) Respondent submits appellant’s contentions are foreclosed by the express holdingsto the contrary in Peoplev. Ochoa (2001) 26 Cal.4th 398, 433-436 and People v. Holt (1997) 15 Cal.4th 619, 706-708. In Holt, this Court held that the type of challenged proceedings in this case are not the type ofproceedings in which a defendant’s presenceis required since those type ofproceedings “do not bear a reasonably substantial relation to the opportunity to defend.” Moreover, any error was harmless,as appellant has failed to show how his absence from the chambers proceedings prejudiced his ability to defend his case. A. The Relevant Proceedings Below Before voir dire proceedings commenced,the trial court asked counsel for appellant and co-defendant Ricardo whether their clients would be inclined to waive the right to be present during discussions of a procedural nature, such as discussionsrelating to the jury questionnaires. (RT 88.) After conferring with appellant, appellant’s counsel indicated that appellant was willing to waive his right to be present during such discussions. However, Ricardo indicated that he was unwilling to waive his right to be present. (RT 89.) During voir dire, the following proceedings occurred: THE COURT: I have a numberof people I need to talk with privately, and that presents a bit of a problem. I’m goingto talk with counsel briefly, and if it’s with their consent andtheir clients, off the 22. Chapmanv. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705]. 38 record. To just determine how we’re going to determinethis, could I see counsel for just a moment, if that’s agreeable with you? (The following proceedings were held in chambers:) THE COURT:I have a few people, one or more, that I needto talk with privately; and if I doit in front of yourclients, I have to get rid of everybodyelse. I’m happyto doit out there, but we’ll have everybody milling around in the hall. If your clients are willing, and if you are willing, I'll bring them in here oneat a time, we’ll do it on the record, and you can talk to your clients about anything you wantto talk about with them in between, or whatever. So we’ll go back out there, and I’Il list who it is I want to talk with privately, and then [Il ask you ifwe can come back here of if we’ll do it in the courtroom. [RICARDO’S COUNSEL]: Fine. [APPELLANT’S COUNSEL]: Very good. (RT 609-610.) Back in open court, the trial court stated that it wanted to speak privately with prospective juror 0903, to be followed by prospective juror 0886. (RT 610-611, 617.) The court asked counsel whether these discussions could take place in chambers and all counsel agreed. (RT 611.) Prospective juror 0903 was subsequently questioned about whetherhe could follow the law as given by the judge regardless of whether he agreed with the law. He confirmedthat he could. He wasalso questioned about whether he could vote to impose the death penalty, and he stated that although he would be reluctant to do so, he would beable to consider the death penalty as an option. (RT 612-615.) Based on the prospective juror’s reluctance regarding the death penalty and his demeanor in answering questions, the prosecutor moved to excuse him for cause. The trial court denied this request. (RT 619-621.) The prosecutorlater used a peremptory challenge against prospective juror 0903. (RT 623.) 39 Prospective juror 0886 wasalso questioned in chambers. Hestated that he wasconfidentthat he could notvote for the death penalty. Over appellant’s counsel’s objection, the trial court granted the prosecutor’s request to excuse prospective juror 0886 for cause. (RT 617-619.) The following day, the trial court again questioned some prospective jurors in chambers. The court questioned prospective juror 3193 abouthis wife’s pregnancy. Prospective juror 3193 stated that the baby was due in December. His wife had previously had a miscarriage in March when she was five months pregnant. Although the current pregnancy appeared to be going well, he was worried about being away from his wife and did not believe he would be able to concentrate on the case if seated as a juror. (RT 715.) All counselstipulated that he could be excused. (RT 716.) Prospective juror 4156 was also questioned in chambers. The court asked him about being charged with contributing to the delinquency of a minor in 1963. Prospective juror 4156 explained that he had allowed a minor who had escaped from somekindoffacility to stay with him, upon his roommate’s request. He believed he had beentreated fairly by the criminal justice system. Hewasnot challenged for cause. (RT 716-720.) Appellant’s trial counsel later used a peremptory challenge against him. (RT 723.) After all parties had accepted the panel as constituted, the court asked whether any of the prospective jurors had any reason to believe they could not: be fair and impartial. Prospective juror 2393, wholater served as Juror No.1, asked to speak to the court. In chambers, a health issue was discussed, andit was determinedthat the juror would advise the court if he needed any breaks during the proceedings. (RT 722-723, 728-730.) In addition, prospective juror 3689, whoserved onthe jury as Juror No. 3, went into chambersto discuss a health issue, and it was decided that the court would accommodatethe juror’s scheduled medical appointments. (RT 724-728.) 40 Some of the prospective alternate jurors were also questioned in chambers outside appellant’s presence. Prospective juror 5421 stated that he did not believe he could be fair and impartial. All counsel stipulated that he could be excused. (RT 751.) Prospective juror 7011 stated that he was unemployed, although hedid not believe it would interfere with serving on the jury. Hestated that he could impose the death penalty. He described a prior conviction for trespass, which resulted from him confusing little girl for someone he knew. Hestated that he had been diagnosed with schizophrenia. (RT 752-757.) Thetrial court denied appellant’s counsel’s challenge of this prospective juror for cause. (RT 760.) The prosecutor later exercised a peremptory challenge against this prospective juror. (RT 762.) After questioning prospective juror 8921 in chambers, the court excused her onits own motion due to concerns about her comprehension ofthe English language and her ability to be fair and impartial (she had indicated it would be difficult to vote not guilty if there was any possibility the defendant could be guilty). (RT 788-789.) Finally, the trial court ruled on additional challenges for cause of prospective alternate jurors while in chambers. The trial court denied appellant’s counsel’s challenges to prospective jurors 3045 and 4320. (RT | 759.) Ricardo’s counsel subsequently exercised a peremptory challenge against prospective juror 3045. (RT 761.) The prosecutor subsequently exercised a peremptory challenge against prospective juror 4320. (RT 762.) Thetrial court also advised counsel in chambersthat it planned to excuse prospective juror 8026 due to problems understanding English. (RT 782.) 41 B. There Was No Denial Of Appellant’s Right To Be Present At Proceedings Bearing No Relation To His Opportunity To Defend The Charges A criminal defendant’s right to be personally present is guaranteed by the Sixth and Fourteenth Amendmentsofthefederal Constitution, as well as by article I, section 15 of the California Constitution and sections 977%and 10432" (People v. Bradford (1997) 15 Cal.4th 1229, 1357.) A defendant, however, does not havea right to be present at every hearing in the course of a trial. (People v. Hines (1997) 15 Cal.4th 997, 1039.) This Court has repeatedly held that a defendant is not entitled to be personally present at proceedings whichbearnorelationto his or her opportunity to defend against the charge. (Jbid., accord, People v. Welch (1999) 20 Cal.4th 701, 774; People v. Holt, supra, 15 Cal.4th at p. 706; In re Lessard (1965) 62 Cal.2d 497, 506.) Moreover, sections 977 and 1043 do not demandthat a defendant be personally present or execute a written waiverifthe proceeding doesnotbear any relation to his or her opportunity to defend. (People v. Bradford, supra, 15 Cal.4th at p. 1357; People v. Holt, supra, 15 Cal.4th at p. 706; People v. Horton (1995) 11 Cal.4th 1068, 1120-1121.) 23. At the timeoftrial, section 977, subdivision (b), stated in relevant part: In all cases in which a felonyis charged, the accused shall be present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence. The accused shall be personally present at all other proceedings unless he or she shall, with leave of court, execute in open court, a written waiverofhis or her right to be personally present, approved by his counsel, which waiver must then be filed with the court... . 24. Section 1043 states in relevant part: “Except as provided in this section, the defendant in a felony case shall be personally presentat thetrial.” 42 Significantly, in People v. Ochoa, supra, this Court rejected the defendant’s claim that he was deniedhis statutory and constitutional right to be present at trial since during voir dire, 12 jurors were questioned about “confidential” matters at sidebar conferences outside of the defendant’s presence. This Court found that the defendant had “not indicated any way in which his presence at the sidebar conferences bore a reasonably substantial relation to his opportunity to defend himself.” (People v. Ochoa, supra, 26 Cal.4th at p. 433.) Thus, there was no due process violation. (Jbid.) Furthermore, this Court found no statutory violation in Ochoa. This Court explained that where the proceeding bears no reasonable relation to the defendant’s ability to defend against the charges, sections 977 and 1043 do not require the defendant’s presence. (d. at p. 434.) Similarly, in People v. Holt, supra, this Court rejected the defendant’s claim that he was denied his statutory and constitutional right to be presentat trial since he was absent during “‘a variety of proceedings.” This Court held that, “noneofthe proceedings[the defendant] identifies in support ofhis claim is shown to be onethat bore any relationship to defendant’s opportunity to defend.” (People v. Holt, supra, 15 Cal.4th at p. 706.) Two ofthe proceedings Holt challenged were (1) sidebar discussions of a challenge for cause; and, (2) an in-chambersdiscussion ofa sitting juror. (/d.at p. 706, fn. 26.) If sidebar discussions of a challenge for cause and in-chambers discussion ofa sitting juror do not require the defendant’s presence, since those type of proceedings do not bear a reasonably substantial relation to the defendant’s opportunity to defend,then it logically follows, that appellant’s presence was not mandatedin the chambers conferences involved here where jurors were asked during voir dire about certain answers they provided on the jury questionnaire forms. There is simply no functionaldifference in the type ofproceedings challenged in Holt and the one challenged here. Appellant’s contention mustbe rejected under this 43 Court’s decision in Holt. (See also United States v. Gagnon (1985) 470 U.S. 522, 526-527 [105 S.Ct. 1482, 84 L.Ed.2d 486] [no constitutional violation when defendant was absent fromjudge’s discussion withsitting juror]; People v. Bradford, supra, 15 Cal.4th at p. 1357 [citing Gagnon with approval]; In re Lessard, supra, 62 Cal.2d at p. 506 [defendant had noright to attend private conference with sitting juror who wasasking to be excused]; People v. Abbott (1956) 47 Cal.2d 362, 372 [defendant had no right to attend hearing determining juror’s qualifications].) Dueprocess doesnotentitle the defendant to appear at every encounter between judge and jurors. Instead, the central inquiry in such situations is whetherthe defendant’s presence at the hearing reasonably could haveassisted his defenseofthe charges against him. (United States v. Gagnon, supra, 470 USS.at pp. 525-527; accord, People v. Johnson (1993) 6 Cal.4th 1, 19; United States v. Olano (9th Cir. 1995) 62 F.3d 1180, 1190-1191 [no federal constitutional violation where defendant not present at ex-parte meeting with judge and juror]; United States v. McClendon (9th Cir. 1986) 782 F.2d 785, 788-789 [defendant’s presence not warranted at in-chambers voir dire of prospective jurors].) Moreover, even assuming there waserror, appellant has not carried his burden of proving prejudice under either the reasonable-probability harmless-error standard ofPeople v. Watson (1956) 46 Cal.2d 818, 836, or the motestringent beyond-a-reasonable-doubt-harmlesserror standard of Chapman v. California, supra, 386 U.S. at p. 24. No substantive rulings were madeat any of the chambers conferences other than when the trial court ruled on challenges for cause. Appellant was present for the majority of voir dire with the exception ofthe limited chambers proceedings whenjurors were questioned individually about private matters. Appellant fails to explain how he could haveassisted in his defense by being present during these proceedings. (People 44 v. Mayfield (1997) 14 Cal.4th 668, 732-737 [although defendant’s absence from jury view violated section 977, it was harmless as it was not reasonably probable defendant would have received a more favorable verdict absent the error]; People v. Hardy (1992) 2 Cal.4th 86, 177-178 [defendant’s absence from portion of preliminary voir dire non prejudicial].) Appellant’s claim should be rejected. Iv. EVIDENCE OF A THREE-WAY TELEPHONE CALL BETWEEN APPELLANT, CODEFENDANT RICARDO LOPEZ, AND JORGE URIBE WAS PROPERLY ADMITTED Appellant contendsthat the trial court improperly allowed appellant’s sister, Patricia Lopez,to testify about the existence of a three-way telephonecall between appellant, codefendant Ricardo Lopez, and Jorge Uribe. Appellant claims that the admission ofthis evidence violated a stipulation entered into by the parties, which was designed to protect appellant’s Sixth Amendmentright to confrontation, and thereby violated appellant’s due process right to enforcementofthe stipulation. Appellant further argues that the admission of the evidence was moreprejudicial than probative under Evidence Code section 352. (AOB 41-53.) Respondent disagrees, as appellant’s sister’s testimony about setting up the three-way telephone call did not violate the stipulation. When viewed in the proper context, it is apparent that the stipulation was intended to preclude any mention of codefendant Ricardo’s statements to the police about a three-way telephone call. The stipulation did not, however, preclude other witnesses from testifying about the existence of a three-way telephone call. Furthermore, appellant’s claim that the evidence should have been excluded pursuant to Evidence Code section 352 should berejected,as the 45 probative value ofthe evidence wasnot substantially outweighed by the danger ofundue prejudice. Finally, any error in admitting the evidence was harmless. A. The Relevant Proceedings Below On March 3, 1998, before trial began, appellant filed a motion for severancein light of co-defendant Ricardo Lopez’s extrajudicial statements to the police implicating appellant. (CT 784-792.) In the motion, appellant relied on the authority ofBruton v. United States (1968) 391 U.S. 123, 129-130 [88 S. Ct. 1620, 20 L.Ed.2d 476] and People v. Aranda (1965) 63 Cal.2d 518, 530- 531. (CT 787-789.) As one offour possible alternatives, the motion proposed “feldit[ing] the extrajudicial statement so as to delete any portion which implicates the nondeclarant-defendant, if the editing can be done without changing the statement so as to prejudice the declarant.” (CT 787, citing Richardson v. Marsh (1987) 481 U.S. 200, 208-209 [107 S.Ct. 1702, 95 L.Ed.2d 176].) Ata pretrial conference on March 9, 1998,the trial court noted that the severance motion was pending. The prosecutor stated that he was not prepared to respond at that time, as he had been engaged in another trial. The court agreed to providethe prosecutor with additional time in which to respondto the motion. The prosecutor informed the court that he would discuss the matter with appellant’s counsel in an effort to reach a resolution. The prosecutor explained, “The issue circles around whetheror not there could be an effective redaction ofMr. Ricardo’s statement, Ricardo Lopez’s statement, and I’m going to work on that. I’m going to get together with [appellant’s counsel]. We might be able to come to some type of agreement.” (RT 68.) At the nextpretrial conference on March 30, 1998, appellant’s counsel informed the court that he and the prosecutor had been working on a redaction of Ricardo’s statement, which would renderhis severance motion moot. (RT 46 71.) At the following pretrial conference on April 17, 1998, the subject of appellant’s severance motion was addressed as follows: [APPELLANT’S COUNSEL]: Yes. Theotherthingis, as the court is aware,I did file a motion for severanceor for separate juries or some other alternatives. We’ve had some lengthy discussions, and my understanding at this point is that the People do not intend to use any portion ofRicardo Lopez’s statements that refer to or indicate any phone conversations between Ricardo and myclient [appellant] Juan Lopez. If that’s the understanding,then it appears to methat in all likelihood my request for severance is moot unless between now and the time we return to court some other reason for the request appears. But that’s - - if my understanding’s correct, that’s the position of the People, then I think wecanlay that motion to rest for the moment. [THE PROSECUTOR]: If I may, your Honor. [§] I asked {appellant’s counsel] to state what our understandingis, and that is what our understandingis. Just so the court’s aware, that there is a statement that I - - for the most part refers to Mr. Ricardo Lopez’s own deeds regarding the homicide. There are references to phone conversations within that statement involving him and his brother having to do with request for the murder. However, those conversations- - there’s three- way conversations. Among them was [Uribe]. I intend to redact any conversation, evenif it’s a reference to a phone conversation, so that it only refers to the two parties of [Uribe] and Ricardo Lopez, with no reference whatsoever to [appellant]. THE COURT:Is that your understanding, [appellant’s counsel]? [APPELLANT’S COUNSEL]: That’s correct. (RT 81-82, emphasis added.) 47 On June 3, 1998, during a break in voir dire proceedings, the trial court asked the parties whether there were any outstandingissues that would need to be resolved with an Evidence Code section 402 hearing. (RT 694.) Appellant’s counsel asked for verification that the prosecutor did “not intend to use the statements ofthe co-defendantthat refer to [appellant].” (RT 695- 696, emphasis added.) The prosecutor acknowledged that the agreement remained intact. He offered to state the agreement clearly for the record, although it was his understanding that they had already done so. The court replied, “We'll do that with a little more specificity, but ’m understanding the agreement holds.” (RT 696.) On June 8, 1998, before trial began, there was a discussion about Ricardo’s statement to the police, which had been redacted by the prosecutor and appellant’s trial counsel. The court acknowledged that it had received a copy of the redacted transcript. (RT 825-826; see Supp. CT 594-724.) Appellant’s trial counsel made the following statement: [APPELLANT’S COUNSEL]: Your honor, [the prosecutor] and I did spend several hours Thursday afternoon with the redacted transcript. So I think at this point I’m satisfied that my item two on the [Evidence Code section] 402 motion® ... . has been properly dealt with by a stipulation of counsel, and I’m satisfied that we have eliminated any concerns that I have with regard to the use ofMr. Ricardo Lopez’s statements used in some way. (RT 826-827, emphasis and footnote added.) 25. Appellant’s counsel had filed a written motion entitled “Notice of Motion and Motion for Determination of Foundational and Other Preliminary Facts; Points and Authorities [Evidence Code § 402].” (CT 887-894.) The second item listed in that motion was “Admissibility of Statement by Co- Defendant Concerning Substance of Conversation Allegedly Had With the Defendant.” (CT 891.) 48 The following discussion ofthe stipulation ensued: [THE PROSECUTOR]: Counsel and I have proposed the following stipulation: that the redactionofthe transcript that the court - - has been provided to the court of Mr. Ricardo Lopez’s statement, which has interlineated throughit all conversations where [appellant] was involved with Mr. Ricardo Lopez,any references to that. So our agreementis that any reference to [appellant], anything that he said, the fact that he was involved in any conversations. with Mr. Ricardo Lopez, the fact that there were even three-way conversations, which wouldindicate that this was a missing third party there those will be deleted. Our agreementis, however, that any references to those conversations, since they were three-party conversations, will only include referenceto the fact that this was a conversation between Ricardo Lopez and this person George Uribe, also knownas Pelon, during which the murder ofMiss Carmody was discussed, but there will not be any reference to the fact that this was a three-way conversation or that [appellant] was involved in such conversations. [{] J believe we’ve looked this over. We've looked together. We’re aware of what the prevailing case law is in this area, and webelievethat this is in conformance with Richardson vs. Marsh. I can provide the citation to the court at a later time. It’s a U.S. Supreme Court case. . [APPELLANT’S COUNSEL]: Sostipulated, with the further proviso, so I understand that counsel will instruct his investigating officers, ifthey testify to anyportion ofRicardo Lopez’s statement, that they will not inadvertently, or otherwise, refer to those passages that have been redacted. THE COURT: And you will so instruct your officers. [THE PROSECUTOR]: Yes. 49 THE COURT:Thestipulation is accepted by the court. (RT 833-834, emphasis added.) During his opening statement, the prosecutor made the following comments regarding Ricardo’s statement to the police and the expected testimony of appellant’s sister: Now, Ricardo Lopez was subsequently arrested, I think, about the 16th, April 16th, and the officers spoke to him. He said that he had conversations between him him [sic] and George Uribe Pelon during the weekthat proceeded [sic] her murder about killing her. Wewill also establish, as I mentioned, through the records that there’s a lot of phone activity from the jail, from [appellant] to his residence, Sandra Ramirez’s residence. I anticipate that Patty Lopez, [appellant’s] sister, she was subsequently interviewed. Shestated that she set up - - that [appellant] had called during the previous week asking for Ricardo; that Ricardo wasn’t there, and she was askedto set up a three-way conversation and forwardthe call to Mr. Uribe, which she did. She didn’t know whatthe conversation was about. I expect that she’ll also testify that subsequentto that that she also set up a three-way conversation when herbrother called. [Appellant] called fromjail. It was a three-way conversation between Ricardo,[appellant], and George Uribe. (RT 901-902.) Appellant’s counsel asked to approach the bench,although the court declined the request and allowed the prosecutor to conclude his opening statement. (RT 902-903.) After the prosecutor finished his opening statement, appellant’s counsel argued outside the jury’s presence that the prosecutor’s 50 mentioning of a three-way telephonecall between appellant, Ricardo, and Uribe violated their stipulation. (RT 904-905.) Appellant’s counsel argued: The agreement wasnot onlythat the content of the conversation not be admissible, not be presentedto thejury, but the very fact of a three-way conversation likewise beingtotally off limits. [§] I’m shockedthat[the prosecutor] said it; I ask the court because of that, because of the inference andimplication that givesrise to - - in any reasonableperson’s mind,the court declare a mistrial at this time. (RT 905.) The prosecutor responded as follows: {Appellant’s counsel] and my agreementpertained to the statement of Mr. Ricardo Lopez. Mr. Ricardo Lopez’s statement said he had a conversation, a three-way conversation with his brother [appellant] and George Uribe alone, during which they discussed the killing of Mindy Carmody. Healso stated that he had conversations with [Uribe] regardingthis. It appears at other times, he also says that he has individual conversations with his brother at other times. It’s my statementto the proposed redaction and the statementthatI made to the jury about his statement was only referring to the conversation that he had with Mr. George Uribe. I made no reference in that statement whenI said that Mr. Ricardo Lopez said that he had a conversation. He had a conversation with George Uribe andthat wasit. And I’m very careful not to refer to anythingelse there. Now,the fact that we’re going to have his ownsister whowilltestify that on - - during the weeks and days preceding that she did set up such conversations does not have anything to do with the actual statement of Mr. Ricardo Lopez which wasredactedto take out any referencetothat. 51 So that’s - - the question nowis that was our agreement- - I’m not sure what’s going on here for one extent because I even spoke to [appellant’s counsel] about calling Patty Lopez and he assured methat I probably would havenotrouble gettingherin at all, and I said I didn’t - - | wanted to know if she was going to be in the courtroom when certain statements were being made because she wasoneofthe potential witnesses. She has been here on other occasions. So as far as our agreement goes andasfaras the redaction,I believe that I don’t see where the misunderstandingis. (RT 906-907.) Appellant’s counselreplied that the “agreementthat there be no content of the three-way conversation is somewhat empty without also eliminating reference to a three-way conversation between those three individuals, [Ricardo], appellant, and [Uribe].” (RT 909.) Appellant’s counsel further arguedthat the inference a reasonable juror would draw from the prosecutor’s comments wasthat the three-way conversation, ofwhich they would never hear about the content, was indeed abouta plan to kill the victim. (RT 909.) Thetrial court remarked that the prosecutor’s comments appeared to have violated the spirit, if not the absolute language ofthe stipulation. The court reserved ruling on the motion for mistrial. The prosecutorreiterated his position that the stipulation went only to the redaction of Ricardo’s statement for purposes of complying with Richardson v. Marsh2® (RT 910.) Thetrial court respondedthat appellant’s counsel’s motion for mistrial was based on the inference that could be drawn from the prosecutor’s comments. (RT 911.) 26. See Richardson v. Marsh, supra, 481 U.S.at pp. 208-211. 27. Thetrial then proceeded with the prosecution calling witnesses. At the end of the day, there was another brief discussion of the issue. The trial court reiterated that it would rule on the motion for mistrial the following day. 52 Thenextday,thetrial court initially stated that although the prosecutor had erred in referencing the three-way conversation during his opening statement, appellant’s motion for mistrial was denied. (RT 966-967.) The court explained: [havein front of methestipulation, as I’ve said. That stipulation was introduced yesterday morning. I asked counsel if they had it in writing. They said no. I didn’t want[the prosecutor] to just free-wheel something onto the record without knowingforsure that it represented exactly what counsel had in mind,andso I told the attorneys to take sometimeto getthe stipulation together. [Appellant’s counsel] and [the prosecutor] spoke together, and then [the prosecutor] put a stipulation . on the record, part of which readsas follows: | So our agreementis that any reference to [appellant], anythingthat hesaid, the fact that he was involved in any conversations with Mr. Ricardo Lopez,the fact that there were eventhree-way conversations, which would indicate that this was a missing third party there, those will be deleted. Our agreementis that any references to those conversations, since they were three-party conversations, will only include reference to the fact that this was a conversation between Ricardo Lopez and this person George Uribe, also knownasPelon, and it goes on further. Butit’s clear, [prosecutor], that the stipulation included mention of a three-way conversation. I will hold you boundto yourstipulation, [prosecutor], so please do remember it through the remainderofthetrial. (RT 967-968.) (RT 961-964.) 53 The prosecutor asked the court to reconsider its ruling in light of the context in which the stipulation was made. The prosecutorexplainedthat the | stipulation was only designed to address the second item in appellant’s Evidence Code section 402 motion, andthat the stipulation only pertained to Ricardo’s statement. The prosecutor asserted that he “would in no way enter into any agreement limiting my ability to present other evidence in this case. AndI did not do that, and it was never myintention to dothat.” (RT 968.) The prosecutorfurther indicated that he did not complete his opening statementas plannedafter appellant’s counsel asked to approach the bench and the court asked whetherthe prosecutor wasnear the completion ofhis opening statement. The prosecutor explained that he had not even gotten to the case against appellant in his opening statement. He had plannedto discuss the statement appellant hadgivento the police in which he denied having spokento Ricardo or Uribe, which wouldbe contradicted by testimony from appellant’s sister,i.e., that she had set up a three-way telephone conversation between appellant, Ricardo, and Uribe. (RT 969.) The prosecutor acknowledged that because of the way his opening statement“was brokenupthere at the time of [appellant’s counsel’s] objection,” it left the impression that the prosecutor wastrying to get the jury to draw an improper inference about the three-way conversation,i.c., that the three-way conversation set up by Patricia Lopez was one and the same as the conversation Ricardo had mentioned having with Uribe in Ricardo’s statementto the police. (RT 970.) However, the prosecutor noted that the transcript of Ricardo’s statement to the police contained references to separate conversations with Uribe and with appellant. Thus, the prosecutor explained, he did not intend in his openingstatementforthe jury to draw the inference that Ricardo’s statement to the police regarding a conversation with Uribe was the same conversationas a three-way telephone conversationset up by appellant’s sister. (RT 970.) 54 The prosécutor agreed that Ricardo’s statementto the police was hearsay with respectto the case against appellant, and that it would be improper to ask the jury to infer that Ricardo’s admitted conversation with Uribe somehow involved appellant. The prosecutor explained, however, that it had been his intent to separately discuss the case against appellant during his opening statement, although he only got so far as discussing the case against Ricardo. The evidence against appellant would include the fact that Uribe wasat the scene of the crime and was the one whocalled the victim over to speak to Ricardo. In addition, there was evidence that appellant’s sister set up a three- way conversation prior to the murder between the two people involvedatthe ~ scene ofthe crime (Ricardo and Uribe), and appellant. The prosecutor argued that this evidence incriminated appellant, and was completely separate from Ricardo’s admission to the police that he had planned the shooting in a conversation with Uribe. (RT 971-972.) Theprosecutor askedthe court to advise the jury that the statements each defendantgave to the police could only be used against that defendant. The prosecutoralso urgedthe court to understandthatthe stipulation went only to Ricardo’s statement and not to the other evidence in the prosecution’s case. (RT 973-974.) The prosecutor again asked the court to reconsiderits ruling in light of the context in which the stipulation was made, and to find that the stipulation was limited to Ricardo’s statementto the police. (RT 974-975.) Thetrial court stated that it was clear that there was no “meeting ofthe minds”with respectto the stipulation. The court declined to declare a mistrial, noting that the jurors had been instructed that opening statements are not evidence. With respect to a curative instruction, the court advised counselit would consider giving an instruction if counsel proposed such an instruction duringtrial, preferably in writing. (RT 975.) The court then changedits ruling on the stipulation, and agreed to enforce the stipulation “as limited asset forth 55 by [the prosecutor].” Appellant’s counsel announced that whenthe prosecution sought to introduce evidencethat a three-way telephonecall existed, he would object on relevance grounds. (RT 976.) B. The Trial Court Did Not Abuse Its Discretion In Enforcing The Stipulation In Accordance With The Prosecutor’s Interpretation Thetrial court’s ultimate ruling that the stipulation would be enforced in accordance with the prosecutor’s interpretation was proper. “‘A party seekingrelief from the burdensomeeffects of a stipulation may, in somecases, be fully protected by interpretation, i.e., by enforcementofthe stipulation in a reasonable and nonburdensome way.’” (People v. Dyer (1988) 45 Cal.3d 26, 57, quoting 1 Witkin, Cal. Procedure (3ded. 1985) Attorneys, § 223, p. 252, and casescited, italics in Witkin.) In Dyer, the prosecution anddefense stipulated that the prosecutor would not impeach the defendant with his prior convictions during the guilt phase of a capital murdertrial. Defense counsel inquired whether the stipulation extendedto any character witnesses that may be presented by the defense and whether the prosecutor agreed not to ask about their knowledge of the defendant’s prior felony convictions. The prosecutor replied that the witnesses could be advised not to volunteer information about prior convictions and further agreed “notto bring out in any way beforethis jury in this phase of the trial any evidence of any nature concerning anyprior convictions ....” (People v. Dyer, supra, 45 Cal.3d at pp. 54-55.) The defendant testified and was not impeached with his prior convictions. A defense expert likewise was not questioned about the defendant’s prior convictions. Defense counsel then questionedthe defendant’s former co-workerabout the defendant’s reputation. Atthat point, the court called the parties into chambersto clarify the extent of the prosecutor’s stipulation. Defense counsel asserted that the agreement 56 precluded any mention ofappellant’s criminal conductasit applied to character evidence. Thecourt replied,“I’m not indicating that he [the prosecutor] didn’t say it, but it’s not in my mindthat that’s what would be in the record, that he would waiveit as far as-any character testimony is concerned, or reputation testimony, if you wish to call it that... .’” (dd. at p. 55.) The prosecutor then stated, “Never has it been stated or made clear or asked me can we ask reputation information and will you forego that relevant information on his reputation, because then it would bebasically asking me if I would let the jury hear false information about the defendant. And I would never accedeto those kinds of points. So it was neverclearly stated to methat there was an attempt to get me to be silent when the jury gets this false notion that this defendant has been nonviolentin his past. And I would not have accededto those things, and I don’t think the Court would require meto do that.” (Ibid.) The trial court in Dyer ruled that although both counsel had acted in good faith, there was no meeting of the minds as to the meaning of the stipulation. (People v. Dyer, supra, 45 Cal.3d at p. 56.) The trial court concludedthat the agreement wasnotintendedto allow the defenseto introduce character evidence without the prosecutor being allowed to impeach those witnesses using the defendant’s prior convictions. The trial court did acknowledge that this was what defense counsel likely intended when he inquired of the prosecutor regarding character witnesses, although the court determined that because of the context in which the question arose, the prosecutorlikely intended that he wouldnot on his own introduce the matter or cross-examine defense witnesses testifying about other matters by inquiring about the prior convictions. (Ibid.) On appeal, this Court foundthatthetrial 57 court’s ruling was proper, explaining that “it did not purport to release the prosecutor from hisstipulation, but merely interpretedit to reflect the probable intention of the parties.” (/d. at p. 57.) To the extent thetrial court in the instant case ultimately agreed to enforce thestipulation as limited to Ricardo’s police statement,it acted properly in accordance with Dyer. As in Dyer, the trial court here did not release the prosecutorfrom his stipulation, but rather interpreted the stipulation to reflect the probable intention ofthe parties. (Jbid.) Appellant’s trial counsel and the prosecutor disagreed about the meaning ofthe stipulation. Appellant’s counsel arguedthatthe stipulation precluded any witness from mentioning the existence of a three-way telephone conversation between appellant, Ricardo, and Uribe. On the other hand, the prosecutor maintained that the stipulation was limited to omitting any references made by Ricardo in his statement to the police about a three-way telephone conversation. Whenthestipulation is viewed in context, the prosecutor’s interpretation ofthe stipulation is reasonable. First, the prosecutor agreed to work with appellant’s counselin reaching a stipulation because of concernsinitially raised in appellant’s motion for severance, brought on Aranda/Bruton grounds, and also in response to appellant’s Evidence Code section 402 motion, which argued that Ricardo’s statement was “only admissible if the court excises any andall referencesto the other defendant, andinstructs the jury that it may consider the confession only againstthe confessing defendant.” (CT 891-892;see also CT 787-789; RT 81- 82694-696.) Both the motionfor severance and the Evidence Codesection 402 motion suggestedthat Ricardo’s statement would be admissibleifall references to appellant containedtherein were deleted from the statement. (CT 787,citing Richardson v. Marsh, supra, 481 U.S. at pp. 208-209; CT 892 citing Richardson v. Marsh.) In light of the high court’s holding in Richardsonv. 58 Marsh,it is reasonable to concludethat the parties’ stipulation waslimited to Ricardo’s statement. In Richardson v. Marsh, the United States Supreme Court concludedthat the rule announcedin Bruton(that a defendantis deprivedofhis rights under the Confrontation Clause when a nontestifying codefendant’s statement naming him as a participant in a crime is introduced at a jointtrial, even if the jury is instructed to consider the confession only against the codefendant), did not extendto a situation where the codefendant’s confession is redacted to omit any referenceto the defendant, even whenthe defendant was nonethelesslinked to the confession by other evidence admitted at trial. (Richardson v. Marsh, supra, 481 U.S. at pp. 208-211.) The High Court explained that unlike a confession that implicates the other defendantonits face, “Wherethe necessity of such linkageis involved,it is a less valid generalization thatthe jury will not likely obey the instruction to disregard the evidence.” (/d. at p. 208.) Thus, when the codefendant’s statementis redacted to omit all references to the other defendant, there is no violation of the Confrontation Clause, even if other properly admitted evidencelinks the defendant to the codefendant’s statement, providedthat the jury is instructed that the statement ofthe codefendant cannot be used against the defendant. (Ud. at pp. 210-211.) Here, appellant’s written motions referenced Richardson, and the prosecutor repeatedly stated that their stipulation complied with the holding of Richardson. The prosecutoralso indicated that Ricardo’s statement had been redacted to omit all references to appellant. When the prosecutor further indicated that any references to a three-party conversation would be “deleted,” because otherwise the jury would be left with the impression that there was a missing third party, this was in accordance with Richardson,i.e., to ensure that there was nothing in Ricardo’s statement that facially incriminated appellant. 28. Bruton v. United States, supra, 391 U.S.at pp. 135-136. 59 Whenthe prosecutor added, “Our agreement is that any references to those conversations, since they were three-party conversations, will only include reference to the fact that this was a conversation between Ricardo Lopez, and this person George Uribe,” when read in context, was limited to Ricardo’s statement and wasclearly for the purpose of complying with Richardson. However, since Richardson held that there was no Confrontation Clause violation when other evidence linked the defendant to the codefendant’s statement, there was no reason for the prosecutorin this case to stipulate that there would be no mention of a three-way conversation by any other witnesses. Furthermore, when discussing the proposedstipulation, both counsel referred to Ricardo’s statement and the mannerin whichit should be redacted. (RT 826-827.) Even whentheprosecutorread the proposedstipulation into the record, he referred to the redactions that had been agreed to by both counselas represented by interlineations in the transcript of Ricardo’s police interview. (RT 833-834.) Finally, as the prosecutor explained in urgingthetrial court to reconsiderits ruling and construe the stipulation as limited only to Ricardo’s statement (see RT 968), there wasnoreasonfor theprosecutorto agreeto limit any references by other witnesses to the existence of a three-way telephone conversation between appellant, Ricardo, and Uribe. Separate from Ricardo’s admission that he and Uribe had discussedthe shooting in advance and that Uribe had provided the gun, other evidence established that Ricardo and Uribe were both involvedin the shooting. Uribe was the one who called Melindaoverto talk to Ricardo right before Ricardo shot her. (RT 1395.) Uribe wasalso present when Ricardo asked Ramirez why she had brought the other girls and that she knew what was going to happen. Uribe was also present when Ricardo told Ramirez that if anything happened, to say it was a driveby shooting. (RT 1208-1209.) In his police interview, appellant denied speaking to Ricardo or Uribe in the days preceding the 60 shooting. (RT 1634-1636.): However, appellant’s sister testified that she had set up a three-way telephone call between appellant, Ricardo, and Uribe. (RT 1594, 1597.) Appellant’s denial of the fact that he had spoken with the two individuals involved in the shooting was strong evidence of consciousness of guilt. Because this evidence wasnot implicated by Aranda/Bruton concerns, there was simply noreason for the prosecutor to agree to limit this evidence. Furthermore, appellant has not established any prejudiceresulting from the trial court’s failure to enforce the stipulation as interpreted by appellant. Appellant claims he reasonably relied on the stipulation in withdrawing his motion for severance.. (AOB 45, 47-48.) This assertion, however, falls short of demonstrating prejudice. As previously discussed, interpreting the stipulation in the manner advancedby the prosecutor effectively removed any facially incriminating references to appellant from Ricardo’s statement. It was not necessary for the prosecutorto agree to prohibit any other witnesses from testifying about the existence of a three-way telephonecall between appellant, Ricardo, and Uribe. (Richardson v. Marsh, supra, 481 U.S. at pp. 210-211.) Thus,evenifit is true that appellant’s counsel withdrew his severance motion in reliance on his own interpretation of the stipulation, this is of no _ consequence. Regardless of whether the stipulation was interpreted in the manner advocated by appellant’s counsel or the prosecutor, appellant had no valid basis for a severance motion, as long as Ricardo’s redacted statement contained nothing on its face to incriminate appellant. Furthermore, had appellant perceived Ricardo’s statementto be facially incriminating, he could have movedto exclude the statement on Aranda/Bruton grounds. Thus, he could not have suffered any prejudice from detrimentally relying on the stipulation. 61 C. The Trial Court Properly Admitted Evidence Of The Three-Way Conversation Over Appellant’s Evidence Code Section 352 Objection Appellant further contends that the admission of Patricia Lopez's testimony that she had set up a three-way telephone call between appellant, Ricardo, and Uribe should have been excludedas irrelevant and pursuantto Evidence Codesection 352, as he claims the probative value of the evidence was outweighedby the potential for prejudice. (AOB 48-51.) This contention should berejected, as the trial court properly admitted the evidence. Just before the prosecution called appellant’s sister, Patricia Lopez, to testify, appellant’s counsel objected to any testimony abouther setting up a three-way telephone conversation between appellant, Ricardo, and Unibe. Appellant’s counsel arguedthat such evidence wouldbeirrelevantin light of the stipulation precluding any reference to the contentofthe conversation. He further argued that allowing Patricia to testify about setting up the telephone conversation would invite the jury to speculate about the content of the conversation. Healso claimed that the evidence should be excluded as more prejudicial than probative. (RT 1577-1578.) The prosecutorstated that he intendedtoelicit testimony from Patricia that when appellantcalled asking for his brother, who wasnot homeatthe time, he then asked her to forward the call to Uribe. He also stated that Patricia would testify that a week before Melinda’s death, she had set up a three-way telephone conversation between appellant, Ricardo, and Uribe. (RT 1578- 1579.) The prosecutorarguedthat the evidence wasrelevant because appellant told the police he had not talked to Ricardo or Uribe, despite the evidence demonstrating that Ricardo and Uribe were both involvedin the shooting. The prosecutor also discussed the evidence that the night before the murder, appellant had asked Alma Cruz if she could kill a homegirl, and when shesaid it depends, appellant told her not to worry about it because he already had 62 somebodydoing it. The prosecutor argued that considering this evidence together, Patricia’s testimony that she put appellant in touch with Ricardo and Uribe wasrelevant. (RT 1579-1580.) The trial court asked the prosecutor whether he would introduce appellant’s statementto the police, and the prosecutor respondedaffirmatively. Thetrial court then referredto the stipulation and asked the prosecutorto restate his understanding of its scope. The prosecutorreiterated his position that the stipulation was limited to the redaction of Ricardo’s statementto the police. Thetrial court stated that the stipulation was not as clear as the prosecutor asserted it was and advised that any further stipulations would be in writing. Thetrial court then ruled that Patricia’s testimony aboutsetting up a call was admissible. (RT 1580-1582.) Appellant’s counselstated that he understood the prosecutor’s argument as representing that the evidence was admissible because appellant had denied | talking to anyone from jail. The court replied,“I thinkit’s also the fact that the act themselves have somerelevance.” (RT 1583.) Appellant’s counsel replied that to the extent the evidence was offered as impeachment, appellant’s statement to the police was somewhat ambiguous regarding whether he had denied talking to Ricardo and Uribe from jail. (RT 1583-1587.) The court declinedto alter its ruling. (RT 1587.) Patricia testified at trial and acknowledgedtelling the police that a week before Melinda waskilled, appellant had called her and asked her to set up a three-waycall between appellant, Ricardo, and Uribe. She furthertestified that she did not listen to the content of the telephone call. (RT 1597.) Patricia claimed norecollection oftelling the police that duringthe first week of April, appellant had called homeand asked to speak to Ricardo, and when told he was not home, asked her to forwardthe call to Uribe. (RT 1594-1595.) Detective 63 Bruce Oakleytestified that Patricia had indeed made such a statement to him. (RT 1828-1830.) Detective Oppelt testified that he interviewed appellant on April 24, 1996. Appellant stated that he had learned about Melinda’s death one week after it had happened when his attorney told him about it. (RT 1611.) Appellant denied talking to Ricardo since appellant had beenincarcerated. Appellantalso deniedtalking to Uribe. (RT 1635-1636.) Under Evidence Code section 352,a trial court in its discretion may exclude evidence “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption oftime or (b) create substantial danger of undueprejudice, of confusing the issues, or of misleading the jury.” A trial court’s decision to admit evidence over an Evidence Code section 352 objection is reviewed underthe abuseofdiscretion standard. The ruling will not be reversed on appeal unlessthe trial court exercised its discretion in an arbitrary, capricious or patently absurd mannerthat resulted in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) Here,thetrial court properly admitted the testimony about Ms. Lopez setting up a three-way call for appellant, Ricardo, and Uribe, and about Ms. Lopez forwardingappellant’s call to Uribe, upon appellant’s request, after appellant was told that Ricardo was not home. -The probative value of the evidence was highly significant. The prosecution’s theory wasthat a conspiracy existed between appellant, Ricardo, and Uribe to murder Melinda. (See RT 2573-2580.) This theory was based on evidence that was independent of Ricardo’s statement to the police. Both Ricardo and Uribe were involvedat the murder scene. Uribe was the one who told Melinda that Ricardo wanted to speak to her. (RT 1395, 1540.) Once Melinda walked over to speak to Melinda, Ricardo shot her multiple times. (RT 1397-1398, 1542-1544.) 64 There was also considerable evidence establishing appellant’s involvement in the crime. Appellant was instrumental in assuring that the female gang members would bring Melinda to the location where she was ultimately gunned down. (RT 1166, 1176-1177, 1381, 1616-1617.) He hada motive for killing Melinda, since she had recently testified against him at the preliminary hearing in the kidnapping case (see RT 916-947), and he could anticipate hertestifying against him again at trial. Furthermore, when Alma Cruz equivocated upon appellant asking whether she could kill a homegirl, appellant told her he already had someone doing it for him. (RT 1382.) Finally, appellant denied to the police that he had been in telephone contact with Ricardo andUribe while appellant was incarcerated. (RT 1634-1636.) Based on all of these factors, it was highly relevant that Patricia had put appellant in contact with Uribe and Ricardo. (See, e.g., People v. Sorrentino (1956) 146 Cal.App.2d 149, 160 [telephone contact between coconspirators relevant in establishing conspiracy].) Indeed, had there been no evidence of telephone contact between appellant and Ricardo or Uribe, appellant’s counsel would haveinevitably exploited this fact as a weakness in the prosecution’s case. In allowing the evidence to be admitted, the trial court properly balanced the probative value ofthe challenged evidence against the potential for undue prejudice and found the formersubstantially outweighedthe latter. Based on the record, respondent submits it simply cannot be said that the court, as a matter of law, exercised its discretion in an arbitrary, capricious, or patently absurd mannerthat resulted in a manifest miscarriage ofjustice. (See People v. Rodrigues, supra, 8 Cal.4th at p. 1124.) Finally, assumingerror, appellant cannot demonstrate he was prejudiced by the trial court’s ruling. An appellant seeking relief due to the erroneous admission of evidence in violation of Evidence Code section 352 must 65 demonstratethatit is “reasonably probable that a result more favorable to [him] would have beenreachedin the absenceofthe error.” (People v. Earp (1999) 20 Cal.4th 826, 878, quoting People v. Watson, supra, 46 Cal.2d at p. 836.) Here, appellant was not prejudiced. Aside from the evidence ofthe telephone calls, there was compelling evidence establishing appellant’s guilt. Appellant had a motive to kill Melinda, as his efforts to prevent her from testifying were not working. He arranged for Melinda to be in the location where she was ultimately killed. He asked Alma Cruzifshe could kill a “homegirl,” and then said he already had someone doing it for him. Even though Ramirez told appellant about the shooting the dayafter it had happened, appellant told the police he had notheard about Melinda’s death until his lawyer told him a week later. In light of this other evidence,it is not reasonably probable thata result more favorable to appellant would have been reached if the challenged evidence had been excluded. Appellant’s claim should be rejected. V. THE TRIAL COURT PROPERLY ALLOWED EVIDENCE OF RICARDO’S STATEMENT MADE AT THE SCENE OF THE SHOOTING; FURTHERMORE, THE TRIAL COURT HAD NO SUA SPONTE DUTY TO GIVE A LIMITING INSTRUCTION REGARDING THE EVIDENCE Appellant contends the trial court improperly allowed a statement attributed to Ricardo,i.e., that after shooting Melinda, Ricardo pointed the gun to his head and said, “For my carnal,””’ to be used against appellant. (AOB 54- 60.) Respondent submits the evidence was properly admitted,as it was relevant to the cases against both Ricardo and appellant. Furthermore, even if the 29. The word “carnal”is slang for “brother.” (See RT 2251.) 66 evidence was admissible only against Ricardo,the trial court had no sua sponte duty to give a limiting instruction,in the absence of such a request. Finally, any possible error was harmless. A. The Relevant Proceedings Below Ricardo’s counsel wanted to call Ramon Ramosto testify as a defense witness. As an offer of proof, Ricardo’s counsel proffered that Ramos would testify as follows: he was a memberofthe Parthenia Street gang, which met on a weekly basis; Ramos went to the meeting on the night of Melinda’s death; Ricardo wasdrinking beer that night; before the shooting, Ricardo and Melinda were arguing with each other in raised voices; as soon as Melinda walked away, shots werefired; after the shooting, Ricardo put the gunto his head andpulled the trigger; just before Melinda was shot, Ramos had a conversation with Ramirez, whodid not mention that Ricardo had accusedher boyfriendoffailing to pay dues; and Ramoshadtold Melinda on oneofthetrips to the store notto worry about Ricardo because Ricardo was nonviolent. (RT 2072-2073.) Ramos’s appointed counsel informed the court that Ramos would refuse to testify out of fear for his own life and that of his family. (RT 2066.) An Evidence Codesection 402 hearing washeld, at which time Ramos confirmed that he would refuseto testify. (RT 2077-2078.) Ricardo’s counsel asked that the court impose sanctions on Ramos, arguing that Ramos’s testimony would support the defenseofheat ofpassion manslaughter, and wouldalso negate the evidence ofpremeditation anddeliberation, as well as the special circumstance. Ricardo’s counsel explained her position that she felt compelled to ask for sanctions in order“to preserve [her] client’s records.” (RT 2080.) Appellant’s counseljoined in the request for sanctions,stating, “Your honor,I would join in that because obviously the testimony, althoughit directly reflects on Mr. Ricardo Lopez’s actions or mental state, has an impact on myclient’s status 67 also.” (RT 2080-2081.) Thetrial court declined to impose sanctions on Ramos for his refusal to testify. (RT 2083.) Ricardo’s counsel asked that Ramos be declared “unavailable” as a witness andthata portion oftestimony from thepreliminary hearing be entered into evidence. (RT 2086.) The testimony subsequently read into evidence includedthe following information: Ramos was a memberof the Parthenia Street gang at the time of the shooting; Ramosarrivedin the alley on the night of the shooting around 8:00 p.m.; at 8:30 p.m., he went to the store with Melindaand boughtfive forty-ounce beers, which he shared with peoplein the alley; an hourlater, he wentto the store again; Ricardo and Uribe were already in the alley when Ramosfirst arrived; Ricardo was drinkingbeerthat night; before the shooting, Ricardo and Melinda spoketo each otherin raised voices; and after the shooting, after Ricardo put the gun to his head andpulled the trigger, Ramostried to take the gun away from him but was unable to do so. (RT 2236-2246.) At the prosecutor’s request, and over appellant’s obj ection,a portion of Ramos’sdirect testimony from the preliminary hearing wasalso read into evidence. Accordingto this testimony, when Ramoswentto take the gun away from Ricardo, Ricardo pointed the gun at his head andpulledthe trigger, but there were nobullets left. While doing so, Ricardo said,“It’s for my carnal.” Ramosexplainedthat the word “carnal” meant “brother.” (RT 2249-2251.) 30. Appellant’s trial counsel objected that the evidence was hearsay, improper rebuttal, and called for a conclusion. (RT 2218, 2250.) The prosecutor arguedthat the testimony placed Ramos’s cross-examination, which had beenreadto the jury, in context. He further argued that the evidence was not hearsay because it was not being offered for the truth of the matter that Ricardo had committed the shooting at the behest of appellant. (RT 2220.) The trial court overruled the objection. (RT 2222, 2250.) 68 B. Appellant Has Waived His Constitutional Challenge For the first time on appeal, appellant contends the admission of the evidenceviolated his Sixth Amendmentright to confront witnesses against him. (AOB 54-57.) Because appellant did not object on this groundin thetrial court, the claim has not been preserved for purposes of this appeal. In order to properly preserve an issue on appeal, the defendant must make a timely and specific objection in the trial court on the same ground urged on appeal. (People v. Raley (1992) 2 Cal.4th 870, 892.) An obj ection on hearsay grounds is insufficient to preserve analleged violation ofthe right to confrontwitnesses. (People v. Catlin (2001) 26 Cal.4th 81, 138, fn. 14; People v. Raley, supra,2 Cal.4th at p. 892.) Requiring a specific objection enablesthetrial court to make an informed ruling and allowsthe party proffering the evidence to cure any defect. (People v. Boyette (2002) 29 Cal.4th 381, 424.) In the instant case, because appellant did not object on the ground that the challenged evidence violatedhis federal constitutional right to confront witnesses against him,this claim has been waived. C. The Trial Court Did Not Abuse Its Discretion In Admitting The Evidence The evidence was properly admitted and did not constitute hearsay or improper rebuttal. Hearsay is defined as “evidence of a statement that was madeotherthan by a witness whiletestifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd.(a); People v. Alvarez, supra, 14 Cal.4th at p. 185.) An out-of-court statementnot offered for its truth does not constitute hearsay, butstill must passthe test ofrelevancy. (People v. Jaspal (1991) 234 Cal.App.3d 1446, 1462.) “Relevant evidence” meansevidence, including evidence relevantto the credibility of a witness or hearsay declarant, having any tendency in 69 reason to prove or disprove any disputed fact that is of consequence to the determination ofthe action.” (Evid. Code, § 210.) On appeal, a trial court’s decision to admit evidence is reviewed for abuse ofdiscretion. (People v. Alvarez, supra, 14 Cal.4th at p. 201; accord People v. Williams (1997) 16 Cal.4th 153, 213.) Furthermore, [n]o judgmentshall be set aside, or new trial granted, in any cause, on the ground of .. . the improper admission. . . of evidence unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage ofjustice. (Cal. Const., art. VI , § 13; see also Evid. Code, §§ 353, 354.) A miscarriage ofjustice occurs only when an examination ofthe entire record, including the alleged improper evidence, indicates a reasonable probability a more favorable result to the appealing party would have been reached in the absence ofthe error. (People v. Breverman (1998) 19 Cal.4th 142, 173-174; People v. Cahill (1993) 5 Cal.4th 478, 501; People v. Watson, supra, 46 Cal.2d at p. 836.) Appellant’s claim establishes neither an abuse of discretion on behalfofthe trial court nor a miscarriage ofjustice. Appellantclaims the challenged statement should have been excluded because the asserted nonhearsay purpose,i.e., Ricardo’s state ofmind, was not relevant to the case against appellant. (AOB 55-57.) Appellant is mistaken. The portion ofRamos’s preliminary hearing testimony introduced by Ricardo’s counsel included Ramos’s account ofRicardo and Melindatalking to each other in raised voicespriorto the shooting. Ramosalso describedarrivingat the alley after Ricardo and Uribe, more than onetrip to the store, and Ricardo drinking beer while at the alley. (RT 2236-2244, 2247-2248.) In addition, Ramos testified that after the shooting, once Ricardo put the gun to his head and 70 clicked it, Ramostried to take the gun away from Ricardo,but was unable to do so. (RT 2245-2246.) Ricardo’s purpose in introducing this testimony was to negate the prosecution’s theory that the killing was deliberate and premeditated, as the evidence might suggest that Ricardo was distraught over the shooting and had not premeditated his actions. (See RT 2080, 2542-2548.) Accordingly, the prosecution wasentitled to introduce additional portions of Ramos’s preliminary hearing testimonyto rebutthis inference. Specifically, the fact that Ricardo stated “It’s for my carnal” whenhe pointed the unloaded gun at hishead and pulled the trigger placed Ramos’s previous testimonyin context. Further, it supported the prosecution’s theory that Ricardo’s actions were planned as opposedto a spontaneous reaction to an argument with Melindaat the scene. Moreover, Ricardo’s state of mind was relevantto the case against appellant. To the extentthejury believed Ricardo’s defense,i.e., that he did not premeditate or deliberate, appellant would also benefit. The prosecution’s theory was that Ricardo killed Melindaat appellant’s request, as a result of planninganddeliberation. Ifthe jury believed that Ricardo acted in the heat of passion, it would underminethe caseoffirst degree murder against appellant. Even appellant’s trial counsel implicitly acknowledgedthat Ricardo’s state of mind wasrelevant to the case against appellant when he joined in Ricardo’s counsel’s request for sanctions against Ramos when Ramos refused totestify and asserted that Ramos’s proposed testimony would have “an impact’ on appellant’s “status.” (See RT 2080-2081.) Althoughthetrial court did not instruct the jury that the evidence was limited to establishing Ricardo’s state ofmind and wasnotoffered for the truth of the matter, no such instruction was requested. In the absence of such a request for a limiting instruction, the trial court had no sua sponte duty to provide one. (Evid. Code, § 355; People v. Coleman (1989) 48 Cal.3d 112, 71 151; People v. Collie (1981) 30 Cal.3d 43, 63-64.) Likewise, even assuming the evidence was only admissible against Ricardo, appellant’s trial counsel did not request an instruction so informing the jury. In the absence of a request, the trial court had no sua sponte duty to providea limiting instruction. (Evid. Code, § 355; see People v. Coleman, supra, 48 Cal.3d at p. 151; People v. Collie, supra, 30 Cal.3dat pp. 63-64.) Finally, any error was harmless,asit is not reasonably probable a more favorable result would have occurred in the absenceofthe challenged evidence. (People v. Breverman, supra, 19 Cal.4th at pp. 173-174.) The statement was ambiguousand did notnecessarily imply that Ricardo wasacting at the behest of his brother. Moreover, the jury had already learned that Ricardo said _ something abouthis brotherat the time he was shooting Melinda. (RT 1549.) Furthermore, the other evidence against appellant wasstrong, includingthat he arranged for Ramirez to take Melindato the alley on the night ofthe shooting, he wasin telephone contact with Ricardo and Uribe before the shooting, he admitted to Alma Cruz that he had someone who had agreedto kill one of Cruz’s fellow gang members,and after the shooting, appellant deniedto the police that he had spoken to Ricardo or Uribe. Finally, the morningafter the shooting, appellant called Ramirez and asked what had happened,indicating he knew something would happen. This was not a close case. Any errorin the admission of Ricardo’s statement did not result in a miscarriage of justice. Appellant’s claim should be rejected. 72 VI. THE TRIAL COURT PROPERLY ALLOWED EVIDENCE THAT THE NUMBER“187” APPEARED ON MELINDA’S PAGER Appellant contends the trial court erred in admitting evidence that Melinda’s pager showed the message “187” shortly after the crime was committed because there was no evidence that the message was linked to appellant. Heclaimsthetrial court should havesustained appellant’s objections that the evidence was speculative and unduly prejudicial under Evidence Code section 352. Hefurther claimsthat the use ofthis testimonyviolatedhis federal tights to due process and to a reliable penalty verdict. (AOB 61-66.) Respondent submits thetrial court properly admitted the evidence. Finally, any error was harmless. A. The Relevant Proceedings Below, The prosecutor sought to introduce evidence that paramedic Drew Oliphant observed the numbers “18772on Melinda’s pager. Appellant’s counselinitially objected on groundsthat there had been late discovery. The prosecutor respondedthata police officer’s report, which had beenprovided in discovery, mentioned the pager message. Appellant’s counsel subsequently objected that the proffered evidence was speculative and should be excluded pursuant to Evidence Code section 352. (RT 1488-1490.) Thetrial court ruled that the evidence was admissible, stating as follows: If two peoplesaw it, it seemsthatit’s not speculation. The number was there. How it got there and whyit got there may be nothing more than serendipity. None of us may knowthat, what little’s before the court 31. The number “187” correspondsto the California Penal Code for murder. 73 now,unless we have something further that suggests that there is some knownreason whyit’s there, butit’s part ofwhat they saw. I will permit it to come in.... Under [Evidence Code section] 352 it does have some prejudicial impact, but it’s part ofwhat was observedsoit’s part of the whole event that happenedthat night, and I will permit it to come in. (RT 1490-1491.) Oliphant, the paramedic, subsequently testified that after Melinda was takento the hospital, he saw herpager with the numbers “187”displayed onit. He did not know how long the numbers had been on the pager. (RT 1525- 1526.) Over appellant’s objection on groundsof hearsay and Evidence Code section 352 (see RT 1893-1894), hospital chaplain Josue Garcia Delgadoalso testified that he saw the numbers “187” on Melinda’s pager when he was looking at her pager in an attempt to find a number for contacting Melinda’s family. There wasan indication on the pager that the page was madeat 8:42 p.m. (RT 1893-1896, 1901, 1904-1905.) Detective Oppelt testified that when he interviewed appellant, appellant brought up the subject of Melinda receiving “187” pages on her pager. Appellant explained that Melinda had been in trouble with some girls. Appellantstated that Melinda had thought his family was responsible for the pages, but appellant deniedthat his family was responsible. He volunteered that his family members did not have Melinda’s pager number. (RT 1659-1661, 1672-1675.) B. The Evidence Was Properly Admitted Thetrial court did not abuseits discretion in admitting the evidence over appellant’s objection. “Only relevant evidence is admissible [citations] andall relevant evidenceis admissible unless excluded underthe federal or California Constitution or bystatute.” (People v. Scheid (1997) 16 Cal.4th 1, 13, citing 74 Evid. Code, §§ 350, 351; People v. Crittenden (1994) 9 Cal.4th 83, 132; People v. Garceau (1993) 6 Cal.4th 140, 176-177; People v. Babbitt (1988) 45 Cal.3d 660, 681.) Evidence Codesection 210 provides: “Relevant evidence” means evidence, including evidencerelevantto the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of theaction. The test of relevance is whether the evidence tendslogically, naturally, and by reasonableinference to establish material facts such as identity, intent, or motive. (People v. Scheid, supra, 16 Cal4th at pp. 13-14,citing Peoplev. Garceau, supra, 6 Cal.4th at p. 177.) Evidence leading only to speculative inferencesis irrelevant. (People v. Kraft (2000) 23 Cal.4th 978, 1035, citing People v. De La Plane (1979) 88 Cal.App.3d 223, 244.) The trial court has broad discretion in determining the relevanceof evidence, but lacks discretion to admit irrelevant evidence. (People v. Scheid, supra, 16 Cal.4th at p. 14.) Evidence Code section 352 provides: Thecourt in its discretion may exclude evidenceifits probative valueis substantially outweighed by the probability that its admission will (a) necessitate undue consumption oftime or (b) create substantial danger of undueprejudice, of confusing the issues, or of misleading the jury. A finding asto the admissibility of evidenceis left to the sounddiscretion ofthe trial court and will not be disturbed unlessit constitutes a manifest abuse of discretion. (People v. Kipp (1998) 18 Cal.4th 349, 371; People v. Mickey (1991) 54 Cal.3d 612, 655; People v. Karis (1988) 46 Cal.3d 612, 637; People v. Siripongs (1988) 45 Cal.3d 548, 574; People v. Stewart (1985) 171 Cal.App.3d 59, 65 [discretion is abused only if court exceeds bounds of reason].) Appellate courts rarely find an abuse of discretion under Evidence Code section 352. (People v. Ramos (1982) 30 Cal.3d 553, 598, fn. 22, 75 reversed on other grounds in California v. Ramos (1983) 463 U.S. 992 [103 S.Ct. 3446, 77 L.Ed.2d 1171].) Here, the evidence wasrelevant and was not unduly speculative. It was undisputed that Ricardo shot Melinda. The chaplain testified that the pager indicated that the page was received at 8:42 p.m., which was around the time the shooting occurred. (RT 1906.}” There wasstrong evidencethat Ricardo shot Melinda pursuant to a conspiracy. Although the identity of the person sending the page was unclear, based on the timing ofthe page, there was a sufficient showing that the person sending the page was a part of the conspiracy, and was making a statementin furtherance ofthe conspiracy. (See Evid. Code, § 1223.) The fact that the declarant’s identity was unknown did not precludethe admission ofthe statement. (See People v. Von Villas (1992) 11 Cal.App.4th 175, 231.) Appellant’s reliance on People v. Weiss (1958) 50 Cal.2d 535, 552-553, - People v. Hannon (1977) 19 Cal.3d 588, 599-600, and People v. Pitts (1990) 223 Cal.App.3d 606, 781 (see AOB 63), is misplaced. Those cases involved intimidation of a witness and efforts to suppress evidence. However, none of them involved a conspiracy, such as the instant case, where one person’s statement made in furtherance of the conspiracy is attributed to all other membersofthe conspiracy. (See People v. Flores (2005) 129 Cal.App.4th 174, 182, citing 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Elements, § 93, pp. 310-311.) Accordingly, the cases appellantrelies upon are inapposite. Moreover, the trial court properly weighed the potential for undue prejudiceagainst probative value determining that the evidence was admissible. (See RT 1491.) The prosecution’s theory was that there was a conspiracy 32. Leticia Corona discovered Melindain the middle ofthe street when she drove by around 9:00 p.m. (RT 1495.) Melinda was moaning and moving around. (RT 1501-1502.) According to the coroner, Melinda would havedied within minutes of being shot absent medicalassistance. (RT 1753-1754.) 76 between appellant, Ricardo, and Uribeto kill Melinda. (See RT 2573-2580.) Ricardo’s defense was that the killing was not intentional, premeditated, or deliberate, but instead occurred in the heat of passion following an argument. (See RT 2080, 2542-2548.) To the extent the jury believed this defense,it would have to reject the prosecution’s conspiracy theory. Thus, the fact that someone sent a “187” page to Melinda just before the shooting was circumstantial evidence that there had indeed been a plan to kill Melinda and that the shooting wasintentional. Although the sender of the message was unknown,the timing ofthe page madeit very likely that it waseither one ofthe conspirators or someone acting on their behalf. Accordingly, respondent submits it simply cannotbe said thatthe court, as a matter of law,exercised its discretion in an arbitrary, capricious, or patently absurd mannerthat resulted in a manifest miscarriage ofjustice. (See People v. Rodrigues, supra, 8 Cal.4th at p. 1124.) In any event, any error was harmless,as it is not reasonably probable the jury would havereached different result absentthe alleged error. (See People v. Breverman, supra, 19 Cal.4th at pp. 173-174.) The pager message was an extremely minor part of the prosecution’s case. An abundance of other evidenceaffirmatively established appellant’s guilt. Appellant had a motiveto kill Melindato prevent her from testifying against him. (See RT 1161-1162.) He arranged for Ramirez to bring Melinda to the alley on the night of the shooting. (RT 1176-1178, 1375-1379.) He was in telephone contact with Ricardo and Uribe the week ofthe shooting (RT 1597), although he deniedthis fact to the police (RT: 1635-1639). The night before the shooting he admitted to Alma Cruz that he already had someone whohadagreedto kill one of her “homegirls.” (RT 1382.) Finally, the morning after the shooting, appellant called Ramirez and asked what had happened,indicating he knew something would happen. (RT 1275.) In light of the above evidence, any possible error 77 in admitting the pager evidence was harmless. Moreover, because any error was harmless, appellant’s federal constitutional claims mustfail. Accordingly, appellant’s claim shouldberejected. Vil. THE TRIAL COURT PROPERLY LIMITED CROSS- EXAMINATION OF THE VICTIM’S MOTHER Appellant contends the trial court improperly restricted his cross- ~ examination of Melinda’s mother, Susan Carmody. He argues that the trial court’s rulingsviolated his statutory right to cross-examinea witness on matters within the scope of direct examination under Evidence Code section 761. He further arguesthathis state and federal constitutional rights to present a defense, to confront the evidence against him, to due process, andfor a reliable penalty verdict were violated. (AOB 67-72.) Respondent submits there wasno error, because the trial court properly sustained the prosecutor’s objections to appellant’s cross-examination of Carmody. Furthermore, any error was harmless. A. The Relevant Proceedings Below The People called Melinda’s mother, Susan Carmody,as a witness in their rebuttal case. Carmodytestified on direct examinationthat in March 1996, Melinda wasliving at home with Carmody. Around March 1995, Melinda had run away from home. Twoto three weeks later, Carmodylearned that Melinda was staying at appellant’s house. Carmodyhadbeentrying to locate Melinda. Upon learning that Melinda wasstaying with appellant, she did nottry to get Melinda to come home. Carmody explained that at least she knew where 78 Melinda was and Melinda continued to go to school. Carmodyalso testified that Melinda had previously run away from home. (RT 2261-2262.) Carmodyfurthertestified on direct examination that on March 13, 1996, she was at work when she received a telephonecall from Melinda. Carmody left work and went home to Melinda. When Carmodyarrived home, Melinda wasupset and had injuries on her neck. Later that evening, the police came to their home. (RT 2263-2265.) Carmodyalsotestified that Melinda usedto write in her diary on a daily basis. Carmodyidentified the diary and identified Melinda’s handwritingin the ‘diary. In a diary entry dated March 13, 1996, the following words had been written: “Bird [appellant] broke in and stabbed me and choked me and kidnapped me. Wentto police station, went to Grandma’s.” (RT 2266-2268.) On cross-examination, appellant’s counsel asked Carmody how many times Melinda had run away from home before Carmody found out that Melinda wasliving with appellant. Thetrial court sustained the prosecutor’s objection based on groundsofrelevance. (RT 2268-2269.) Appellant’s counsel also asked Carmody whether Melinda returned home in September 1995 “essentially on her own?” Carmodyreplied, “Yes.” Appellant’s counsel then asked, “That wasn’t because somepolice officers scared her into doing so?” Carmody responded,“That’s possible.” (RT 2269.) Appellant’s counsel later asked Carmody about her statements to a police officer on the morning of Melinda’s death. The following exchange ensued: Q. Did you, in fact, tell the officer that [Melinda] stayed with [appellant] from March 1995 until September 1995? A. Yes. Q. At that time, she ran into the police and they scared her into coming back home? [Prosecutor]: Your honor,this is improper impeachment. 79 The Court: That is sustained. (RT 2270.) Carmody acknowledged on cross-examination that it upset her that Melinda chose to live with appellant rather than at home. She also acknowledged thatit upset her that Melinda had a personal relationship with appellant. (RT 2271.) Carmody deniedthat the reason she was upset aboutthe relationship was because appellant was Hispanic. (RT 2274.) Appellant’s counsel then asked whether Carmody hadever told anybody that when Melinda was with her, she dressed “like a white girl, but when she wasn’t with [Carmody], she dressed like a Chola?” The prosecutor objected that the question called for hearsay and wasirrelevant. Thetrial court sustained the objection, and denied appellant’s counsel’s request to approach the bench. (RT 2274.) B. Cross-Examination Of Susan Carmody Was Properly Limited The trial court did not abuse its discretion and no constitutional violation occurred. Evidence Code section 761 defines cross-examination as “the examination ofa witness bya party other than the direct examiner upon a matter that is within the scope of the direct examination of the witness.” In general, the trial court is vested with wide discretion in determining the admissibility of evidence, and its rulings will not be overturned on appeal absent an abuse ofdiscretion. (People v. Cooper (1991) 53 Cal.3d 771, 816.) Thetrial court may impose reasonablelimits on cross-examination that do not violate the Confrontation Clause of the United States Constitution based on concerns “about, amongotherthings, harassment, prejudice, confusionofthe issues, the witness’ safety, or interrogation thatis repetitive or only marginally relevant.” (Id. at p. 817, quoting Delaware v. Van Arsdall (1986) 475 U.S. 673, 678-679 [106 S.Ct. 1431, 89 L.Ed.2d 674].) 80 Aspreviouslystated,the test ofrelevance is whetherthe evidence tends logically, naturally, and by reasonableinference to establish material facts such as identity, intent, or motive. (People v. Scheid, supra, 16 Cal.4th at pp. 13-14, citing People v. Garceau, supra, 6 Cal.4th at p. 177.) Evidence leading only to speculative inferencesis irrelevant. (People v. Kraft, supra, 23 Cal.4th at p. 1035.) Thetrial court has broad discretion in determining the relevance of evidence, but lacks discretion to admit irrelevant evidence. (People v. Scheid, supra, 16 Cal.4th at p. 14.) A trial court also has wide discretion in determining whether to exclude evidence pursuant to Evidence Codesection 352, and a ruling will not be disturbed unless the court actedin an arbitrary, capricious, or patently absurd mannerthat resulted in a manifest miscarriage ofjustice. (See People v. Rodrigues, supra, 8 Cal.4th at p. 1124.) “As a general matter, the ordinary rules ofevidence do not impermissibly infringe on the accused’s right to present a defense.” (People v. Hall (1986) 41 Cal.3d 826, 834.) Due process violations occur only when the excluded evidenceis highly probative of the defendant’s innocence. (Peoplev. Smithey (1999) 20 Cal.4th 936, 996,citing Green v. Georgia (1979) 442 U.S. 95, 97 [99 S.Ct. 2150, 60 L.Ed.2d 738] and Chambers v. Mississippi (1973) 410 U.S. 284, 289-303 [93 S.Ct 1038, 35 L.Ed.2d 297].) “[I]f the exculpatory value ofthe excluded evidenceis tangential, or cumulative of other evidence admitted at trial, exclusion ofthe evidence doesnot deny the accused due processoflaw.” (Id. at p. 996.) | Here, Carmodytestified on direct examination that Melinda had run away from homeprior to moving in with appellant’s family. The number of times Melinda hadpreviously run away wasof such marginal relevancethatit was properly excluded bythetrial court. Appellant argues that the jury may have considered him as the person responsible for Melinda’s problemswith her family, or as a person whocontributed to the problems. He further asserts that 81 “cross-examination on this subject could have placed this in its full context, allowing the jury to determine why Melinda ended upliving with appellant’s family.” (AOB 68.) Appellant’s argument is flawed. Simply allowing Carmody to testify about the numberoftimes Melinda had previously run away from home would not haveshedanylight on the reason Melindachoseto live with appellant’s family. Furthermore,the fact that Carmody acknowledgedthat Melinda had run awaypriorto living with appellant’s family madeit unlikely that the jury would find appellantto be the sole cause ofMelinda’s decision to run away from homeandlive with appellant’s family. The trial court did not abuseits discretion in limiting the cross-examination onthis topic. The trial court also acted within its discretion in sustaining the prosecutor’s objection regarding the circumstances under which Melinda returned homeafter living with appellant’s family. Unless Carmody observed someonephysically force Melinda to return home from appellant’s house, and there is no indication that this happened, Carmodylacked personal knowledge of the reason Melinda chose to return homeafter living with appellant. Any opinion on this subject would have necessarily been based on hearsay or speculation. Thus, there was no reasonto believe Carmody wasbeing evasive when she agreed that it was possible that police officers had scared Melinda into returning home. (See RT 2269.) Accordingly, when appellant’s counsel attempted to impeach Carmody byaskingher,“at that time, [Melinda] ran into the police and they scared her into coming back home?”the prosecutorproperly objected on grounds of improper impeachment. Appellant’s counsel had asked Carmody whether Melinda had run into the police and they scared her into returning home; he did not ask whether Carmody had ever madesuch statementto the police. Furthermore, evenif defense counsel’s question is construed as asking Carmody about a statement she had purportedly made to the police, it still constituted improper 82 impeachmentsince any opinion held by Carmodyregarding the reason Melinda returned home would have been based on hearsay and/or speculation. Therefore,the trial court properly sustained the prosecutor’s objection. Finally, the trial court properly sustained the prosecutor’s objection to the question regarding whether Carmody had evertold anyone that Melinda dressed like a “white girl” when they were together but like a “Chola” when not together. (See RT 2274.) Even assuming the statement wasnot offered for the truth ofthe matter, as appellant suggestsforthe first time on appeal, the alleged statement wasneutral in tone and was not addressed toward appellant. Thus, even if Carmody had madesuch statement, there was nothinglinkingit to a bias against appellant. Accordingly, whether Carmody had madethe statement wasirrelevant and was properly excluded. . In sum,the challenged rulingsall pertained to matters of marginal, if any, relevance. Appellant was able to explore Carmody’salleged bias against him by eliciting her admission that she did not approve of Melinda’s relationship with appellant and that she was upset when Melinda chosetolive with appellant rather than at home. Thus, the trial court did not abuse its discretion in limiting the cross-examination ofCarmody. Nordid the limits on cross-examination deprive appellant of the rights to due process, to confront witnesses against him, to present a defense, or to a reliable penalty verdict. Appellant’s claim should berejected. Finally, any possible error was harmless. As discussed above, no error of constitutional dimension occurred. Error in determining whether evidence is admissible as relevant evidence is subject to harmless error analysis of whetherit is reasonably probable the jury would have reached a different result absent the error. (Evid. Code, § 354; People v. Scheid, supra, 16 Cal.4th at p. 21, citing People v. Watson, supra, 46 Cal.2d at p. 836.) The numberoftimes Melinda had run away from homewashighly unlikely to influence the jury in 83 any way. Furthermore, Carmody’s opinion ofwhether Melinda returned home from appellant’s house on her ownaccordor becausethe police had scared her into doing so wasnotpertinentto any issue to be resolved by the jury. In fact, had the jurors believed that the police had scared Melinda into returning home, it may have caused them to speculate that the police had provided unfavorable information to Melinda about appellant. Thus, this line of cross-examination would not have assisted appellant, and, in fact, could have been to his detriment. Appellant had the opportunity to establish Carmody’s possible bias against him. Carmody acknowledgedthat she did not approve of Melinda’s relationship with appellant. Whether she told anyone that Melindadressedlike a “white girl” around Carmodybut a “Chola” when not with Carmody was marginally relevant, if at all, and in any event cumulative. Reversal is not warranted. Finally, because any error was harmless, appellant’s federal constitutional claims should be rejected. VIII. THE TRIAL COURT PROPERLY ALLOWED DETECTIVE MORRITT TO TESTIFY ABOUT MELINDA’S DEMEANOR AT THE PRELIMINARY HEARING Appellant contends thetrial court erred in allowing Detective Morritt, the investigating officer in the kidnapping case, to testify about Melinda’s demeanorasshetestified at the preliminary hearing in that case. (AOB 73-78.) This claim lacks merit and should berejected. A. The Relevant Proceedings Below Melinda’s testimony from the preliminary hearing in the previous kidnapping case wasread into evidence at appellant’s trial. (RT 916-947.) The 84 prosecutor subsequently called Detective Morritt, the investigating officer in the kidnapping case,to testify at the trial in the instant case. (RT 1040, 1050.) Detective Morritt testified that he was present while Melindatestified at the preliminary hearing in the kidnapping case. The prosecutor then asked Detective Morritt whether he observed Melinda’s demeanorasshetestified. Detective Morritt replied affirmatively. (RT 1050.) The following proceedings ensued: Q [BY THE PROSECUTOR]: Can you describe to us what her emotional state appeared to be as she wastalking? [APPELLANT’S COUNSEL]: Objection, relevance, calls for a conclusion, speculation on his part. THE COURT: He maydescribe his observations. Overruled. [DETECTIVE MORRITT]: I would describe her as frightened, upset and sometimescrying. Q [BY THE PROSECUTOR]: Now,her crying,did it ever get to the point that there needed to be a pause in the proceedings? A Yes. Q Did the judge or anybody do anything while - - at this time? A Yes. Q What wasthat? A The judgein the proceeding stopped the testimony, Melinda’s testimony, offered her sometissues andsaid to her, “Would youlike to go on?” Q Sir - - [§] [PROSECUTOR]: [’m going to refer court and counsel to page 38 of those proceedings. THE COURT: MayI havethetranscript, [court clerk]. [{]] You may go forward, counsel. [PROSECUTOR]: Thank you. It would be lines 17 to 19. 85 Q. Just let me ask youifyourecall this exchange between the court and the witness. THE COURT: Okay. You want some Kleenex? You okayto go on? Try to finish. [§] Okay. Go ahead, [Deputy District Attorney Baird]. [Q] Do you rememberthat exchange? A Yes, I do. Q Andis that the time you’re talking about when the judge gave Ms. Carmody some Kleenex? A Yes. (RT 1051-1052.) B. Evidence Of Melinda’s Demeanor While Testifying At The Preliminary Hearing Was Relevant And WasProperly Admitted At Trial Appellant asserts that Detective Morritt’s impression of Melinda’s demeanorwastoo speculative to be relevant. (AOB 73.) Hefurther arguesthat to be relevant, the demeanor of a witness is something thetrier of fact must observe. (AOB 74.) These arguments are unpersuasive. First, the Evidence Code expressly states that a witness’s demeanoris something to be considered in determining his or her credibility. Evidence Code section 780, states in pertinent part as follows: Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: (a) His demeanor while testifying and the manner in which he testifies. 86 (b) The character of his testimony. (j) His attitude toward the action in whichhetestifies or toward the giving of testimony. (Evid. Code, § 780; see also People v. Lewis (2001) 26 Cal.4th 334, 361 [a witness’s demeanor whiletestifying and the mannerin which shetestifies may be relevantto her credibility], citing Evid. Code, § 780, subd. (a).) A witness’s fear of testifying is relevant because it bears on the witness’s credibility. (People v. Warren (1988) 45 Cal.3d 471, 481.) While the trier of fact is ordinarily able to observe the witness’s demeanorfirsthand,this is not possible when the witness is unavailable and her prior testimony is admitted pursuant to Evidence Code section 1291. Nevertheless, nothing in the language ofEvidence Codesection 780limits the jury’s consideration of demeanorevidenceto firsthand observation. Nor do any ofthe casesrelied upon by appellantstand for the proposition that the jury may only consider the demeanorof a witness if there was firsthand observation. Rather, in the cases cited by appellant, unlike the instant case, there simply was no demeanor evidence introduced. However, none of the cases cited by appellant hold that it would be improper to allow testimony regarding a witness’s demeanorat a prior proceeding. (See AOB 74,citing California v. Green (1970) 399 U.S. 149, 198 [90 S.Ct. 1930, 26 L.Ed.2d 489]; People v. Adams (1993) 19 Cal.App.4th 412, 438; People v. Manson (1976) 61 Cal.App.3d 102, 224 (conc. and dis. opn. of Wood, P.J.); People v. Williams (1968) 265 Cal.App.2d 888, 896.) To the extent that appellant claims Detective Morritt’s impression of Melinda’s demeanor wastoo speculative to be deemed relevant (AOB 73-74), this argument is unavailing, as this Court has long held that a witness may testify as to his opinion of another person’s appearance or demeanor. (See,e.g., 87 People v. WongLoung (1911) 159 Cal. 520, 533-534; Peoplev. Sanford (1872) 43 Cal. 29, 33.) Appellant provides no logical basis upon which to draw a distinction for testimony regarding a witness’s demeanorata prior proceeding. (Cf. People v. Downs (1952) 114 Cal.App.2d 758, 761 [“Any person whohas heard orgiven testimony is competenttotestify to the testimony that was there given”].) Appellant suggests there may have been numerouscauses ofMelinda’s demeanor whiletestifying at the preliminary hearing, and he complains that Detective Morritt did not identify any questions or answers that might have caused Melindato be upset. (AOB 75.) These were subjects that appellant’s counsel could have explored on cross-examination of Detective Morritt. Furthermore, appellant’s concerns goto the weight to be given the evidence, not its admissibility. In any event, any error was harmless,as it was not reasonably probable the jury would have reacheda different verdict in the absenceofthe testimony about Melinda’s demeanor. (People v. Watson, supra, 46 Cal.2d at p. 836.) Appellant arguesthat the testimony wasprejudicial becauseit allowed the jury to speculate that appellant frightenedthe victim. (AOB 76-78.) Yet, the jury had already heard Melinda’s testimony from the preliminary hearing that she wasfrightened by appellant. (See RT 918, 926.) Thus,it is highly unlikely that the detective’s testimony about Melinda’s demeanor caused any prejudice. Furthermore, Melinda’s testimony at the preliminary hearing went to the charges ofkidnapping, assault with a deadly weapon or by meansofforcelikely to produce great bodily injury, and residential burglary. The jury only returned guilty verdicts on the kidnapping and assault charges, demonstrating that the testimony did not unfairly prejudice appellant. Moreover, the evidence ofthe kidnapping and assault charges was very strong. Appellant admitted to Ramirezthathe hadtried to kidnapMelinda and 88 that he had stabbed herin the neck. (RT 1160.) After the kidnapping, Melinda reported the incidentto the police that evening and wasstill bleeding from her neck woundswhenthepolicearrived at her home. She also had bruises on her neck. (RT 949-955.) Although appellantinitially told the police that Melinda had accompanied him voluntarily, this was not credible in light ofhis admission to the police that he had hit and chokedherthat day. (See RT 1045-1046.) In any event, he later acknowledged to the police that he had made a mistake regarding the kidnapping case. (RT 1612.) Accordingly, any error in admitting testimony about Melinda’s demeanorat the preliminary hearing was harmless, and appellant’s claim should be rejected. Moreover, because any error was harmless, appellant’s federal constitutional claims must fail. IX. SUBSTANTIAL EVIDENCE SUPPORTS APPELLANT'S FIRST DEGREE MURDER CONVICTION Appellant contends the evidence wasinsufficient to support hisfirst degree murder conviction. (AOB 79-87.) Respondent disagrees, as ample evidence supports the conviction. Thestandard applicable to a claim of insufficient evidence is settled. The relevant inquiry is whether any reasonable trier of fact, resolving conflicts in favor ofthe prosecution, could find guilt beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576-578; People v. Wharton (1991) 53 Cal.3d 522, 546.) On appeal, this Court must view the evidence in the light most favorable to the prosecution, and must presumethe existence of every factthat the trier of fact could reasonably deduce from the evidence in support of the judgment. (People v. Johnson, supra, at p. 576; see also People v. Jones (1990) 51 Cal.3d 294, 314.) The samestandard applies to the review of circumstantial 89 evidence. (People v. Ceja (1993) 4 Cal.4th 1134, 1138; People v. Bean (1988) 46 Cal.3d 919, 932; People v. Contreras (1994) 26 Cal.App.4th 944, 956.) Federal due process likewise requires that a criminal conviction be supported by substantial evidence. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319 [99 S.Ct. 2781, 61 L.Ed.2d 560].) The relevant inquiry is whether, “after viewing the evidencein the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (id. at p. 319.) This standard is “to the same effect” as the state standard. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Here, the prosecution proceeded on twotheories of guilt, aiding and abetting and conspiracy. (See RT 2435, 2557; CT 991-996.) Substantial evidence supports the jury’s finding of guilt on either of these twotheories. With respect to aiding and abetting, section 31 provides in pertinentpart as follows: All persons concerned in the commission of a crime, whetherit be felony or misdemeanor, and whether they directly commit the act constituting the offense,or aid and abetin its commission,or, not being present, have advised and encouraged its commission,. . . are principals in any crime so committed. | (§ 31; see People v. McCoy (2004) 25 Cal.4th 1111, 1116-1117.) Although an aider and abettor must know the perpetrator’s criminal purpose and he mustintendtofacilitate the offense (People v. Beeman (1984) 35 Cal.3d 547, 560), he need not be prepared to commit the offense by his own act. Ifa defendant’sliability is predicated on a theory of aiding and abetting the perpetrator, the defendant’s intent to encourageorfacilitate the perpetrator must be formed beforeor during the commission ofthe offense. (People v. Montoya (1994) 7 Cal.4th 1027, 1039; People v. Cooper (1991) 53 Cal.3d 1158, 1164; People v. Beeman, supra, 35 Cal.3d at pp. 556-558.) 90 [P]roofofaider and abettorliability requires proofin three distinct areas: (a) the direct perpetrator’s actus reus- - a crime committed by the direct perpetrator, (b) the aider and abettor’s mens rea - - knowledge ofthe direct perpetrator’s unlawful intent and an intent to assist in achieving those unlawful ends, and (c) the aider and abettor’s actus reus - - conduct by theaider and abettor that in fact assists the achievement of the crime. (People v. Perez (2005) 35 Cal.4th 1219, 1225.32 The aider and abettor’s liability extends to the natural consequences of the acts he knowingly and intentionally aids. (People v. Croy (1985) 41 Cal.3d 1, 12; People v. Hammond (1986) 181 Cal.App.3d 463, 467-468.) An aider and abettor “is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person heaids and abets.” (People v. Croy, supra, 41 Cal.3d at p. 12, fn. 5.) Here, the jury could reasonably infer that appellant aided and abetted the first degree murder ofMelinda. First, appellant had a motive to kill Melindato preventher from testifying against him at the kidnappingtrial, andto retaliate for her testifying at the preliminary hearing. At appellant’s request, Sandra Ramirez had told Melinda not to go to court on the dayof the preliminary 33. Thejury in the instant case wasinstructed onthe principlesofaiding and abettingas follows: A personaids and abets the commission of a crime when he One. With knowledge of the unlawful purpose of the perpetrator, and Two. With the intent or purpose of committing or encouragingor facilitating the commission of the crime, and Three. By act or advice, aids, promotes, encourages or instigates the commission of a crime. A person whoaids and abets the commission of a crime need notbe presentat the scene of the crime. (RT 2659; CT 991; CALJIC No.3.01.) 91 hearing. Appellantalso tried to get Ramirezto pick upa letter and deliverit to Melinda. (RT 1161-1162.) When these efforts to discourage Melinda from testifying were unsuccessful, appellant became upsetat the preliminary hearing. At one point in the proceedings, appellant leaned forward in his chair and stated, “I don’t haveto sit here andlisten to this shit.” (RT 1055.) From this evidence, the jury could reasonably infer that appellant had a motive to kill Melinda,to prevent her from testifying against him at the kidnappingtrial. There was also ample evidence that appellant aided, promoted, encouraged,or instigated the commission ofthe murder. Appellant insisted to Ramirez and Alma Cruz that prospective gang member “Happy”had to be “jumped in”in the alley rather than at a park where the girls had originally plannedto doit. It was also agreed that Happy should be jumped in on April 12, the night of the meetingin the alley. Ramirez complied because appellant hadstarted the girls gang andtherefore hadthe authority to tell her whatto do. (RT 1176-1178, 1375-1379.) Thus, appellant aided in the killing of Melinda by arranging for herto be broughtto the scene of the murder. Furthermore, the day before the murder, appellant asked Cruz if she could would kill one ofher “homegirls.” When Cruz replied that it depended on whether the person had done something to her, appellant said, “I already have someonedoing it for me.” (RT 1382.) Becausethis statement occurred the day before the murder, and because of the small numberofgirls in Cruz’s gang, the most logical inference was that appellant was referring to Melinda when he said he already had someone to kill one of Cruz’s fellow gang members. Thus,thejury could reasonably construe appellant’s statement as an admission that he had planned the murder and convinced someone to commit the act of killing Melinda. In addition, the fact that appellant had recently spoken to Ricardo,the shooter, and Uribe, who waspresent with Ricardo at the scene ofthe shooting and assisted Ricardo by calling Melinda overto speakto 92 Ricardo just prior to the shooting, corroborated appellant’s statementthat he had someone working on killing Melinda. Moreover, Ricardo’s actions at the scene of the crime supported an inference that appellant had aided, promoted, encouraged, or instigated the commission of the murder. Ricardo was upset when he saw that Ramirez had brought other femalesto the alley with her in addition to Melinda. He asked Ramirez whyshe had brought “them” with her when Ramirez knew what was going to happen. Ricardo also told Ramirez that if anything happened,to say it was a drive-by. (RT 1205-1207.) Since Ramirez did not know whatRicardo wastalking about,it appears that Ricardo mistakenly assumed that Ramirez had learned ofthe plan from someoneelse, such as appellant, since Ramirez wasthe one responsible for bringing Melindato thealley. Finally, appellant’s actions after the murder displayed a consciousness of guilt. He called Ramirez the next morning and his first words were “What happened?” (RT 1275.) This question demonstrated appellant’s knowledge that something was supposed to have happened. Healso deniedto the police that he had spoken to Ricardo and Uribe, the two participants in the murder who werepresentat the crime scene. Appellantalso initially denied that he had spoken to Ramirez, the person he hadenlisted to make sure Melinda arrivedin the alley on the night of the murder. Appellant also claimed that he had not learned of Melinda’s death until his lawyer told him aboutit. All of the above evidence supporting a guilty verdict on an aiding abetting theory also supported a guilty verdict on a conspiracy theory. A conspiracy exists if two or more people agree to commit any crimeand thereis an overt act in furtherance ofthe agreement. (§§ 182, subd. (a)(1), 184; People v. Prevost (1998) 60 Cal.App.4th 1382, 1399.) Since, in most cases, direct evidenceofthe parties’ agreementis notavailable, the existence and nature of the agreement, and thus of the objectives of the conspiracy, are commonly 93 inferred from circumstantial evidence of conduct, relationship, interests and activities of the alleged conspirators before and during the alleged conspiracy. (People v. Towery (1985) 174 Cal.App.3d 1114, 1130; People v. Martin (1983) 150 Cal.App.3d 148, 163; People v. Manson (1976) 61 Cal-App.3d 102, 126.) Each member of a conspiracy is liable for acts committed by every other member of the conspiracy if that act is in furtherance of the object of the conspiracy. (People v. Flores, supra, 129 Cal.App.4th at p. 182, citing | Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Elements, § 93, pp. 310-311.) Based on appellant’s admission to Alma Cruz that he already had someone tokill one of her “homegirls,” which was corroborated by Patricia Lopez’s testimony that appellant had been in contact with both Ricardo and Uribe, and Ricardo’s ultimatekilling of Melinda, the jury could logically infer that an agreementhad been formedto kill Melinda. Because Ricardopulled out a gun andshot Melindain furtherance ofthat conspiracy, appellant was liable for that act as a conspirator. _ Appellant acknowledges much of the evidence discussed above and argues that there are innocent explanations for his actions. (AOB 79-86.) Appellant is essentially asking this Court to draw different inferences from those drawn by the jury and reweigh the evidence. This is impermissible. Accordingly, appellant’s sufficiency claim mustbe rejected. To the extent appellant argues there was no independentevidenceofhis guilt apart from his own admissions, in violation of the “corpus delicti” rule (see AOB 86-87), this contention shouldbe rejected, as appellant’s argument is premised on a misunderstanding ofthe corpusdelicti rule. The corpus delicti rule serves the purpose of assuring against the accused admitting to a crime which never occurred. (People v. Jones (1998) 17 Cal.4th 279, 301.) Given this purpose, the prosecution mustestablish corpus delicti independently from 94 a defendant’s extrajudicial statements or admissions, but such independent proof mayconsist of circumstantial evidence and neednotestablish the crime beyond a reasonable doubt. (/bid.) The elements of corpus delicti include the fact of the injury or loss or harm and the existence of a criminal agencyasits cause. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1127; People v. Zapien (1993) 4 Cal.4th 929, 985-986.) The core of the corpusdelicti of murderis a killing. (People v. Swain (1996) 12 Cal.4th 593, 603.) There need be no independent evidence that the defendant was the perpetrator. (People v. Gutierrez, supra, 28 Cal.4that p. 1128.) Furthermore, this Court has explained: Morespecifically, it has been held that in a case tried on an aiding and abetting theory, the requisite knowledge and intent required for aider-abettor liability are not elements ofthe corpus delicti that must be proved independently of any extrajudicial admissions for purposes of establishing the corpus delicti. (People v. Ott (1978)84 Cal.App.3d 118, 131, 148 Cal.Rptr. 479 [“the corpus delicti must be established with respect to the underlying criminaloffense, rather than the theory of aiding and abetting which, in the absence ofthe commission ofthe main crime, would not be punishableatall”), disapproved on other grounds in People v. Beeman (1984) 35 Cal.3d 547, 556-559, 199 Cal.Rptr. 60, 674 P.2d 1318.) (People v. Gutierrez, supra, 28 Cal.4th at pp. 1128-1129.) In the instant case, ample evidence established the corpus delicti of the crime independentof appellant’s statements. Witnesses at the scene observed Ricardo shoot Melinda multiple times. (RT 1220, 1265, 1397-1399, 1541- 1544.) According to the coroner, the cause of Melinda’s death was multiple gunshot wounds. (RT 1726.) Thus, the killing was established independently of appellant’s statements. It was not necessary for the prosecution to present independent evidence of appellant’s guilt as an aider and abettor. (/bid.) 95 Therefore, appellant’s claim the prosecution failed to establish corpus delicti lacks merit. X. THE TRIAL COURT PROPERLY ALLOWED THE PROSECUTION TO INTRODUCE MELINDA’S DIARY ENTRY AND HER STATEMENTS TO HER TEACHER AS PRIOR CONSISTENT STATEMENTS Appellant contendsthetrial court erred in allowing the prosecutorto introduce Melinda’s diary entry as rebuttal evidence. He further arguesthat the trial court erred in allowing Melinda’s teacherto testify about statements she had made to him. Appellantclaimsthat the admission ofthe evidenceviolated his constitutional rights to due process and a fair trial, to confrontation of witnesses, and to a reliable capital trial. (AOB 88-94.) These claims are meritless. A. The Relevant Proceedings Below Melinda’s testimony from the preliminary hearing in the kidnapping case was read into evidence at appellant’s trial in the instant case. (RT 916.) Melindatestified that on March 13, 1996, about two weeksafter she had broken up with appellant, he came over to her apartment against her wishes and tried to convince her to leave with him. Whenshe declined, appellant cameafter her with a knife, hit her in the back of the neck, and choked her. He forced her to pack a bag andto go outside with him, wherehis friend was waiting in car. Appellant pushed Melinda into the car, and they drove to appellant’s house. Appellant told Melindato stay in the car while he wentinside andretrieved a bag. They next wentto appellant’s aunt’s house. Melinda went inside and stayed with appellant’s aunt, and appellantleft with his friend. Appellant’s aunt 96 helped, Melindaclean the injury in the back ofher neck. About four hours later, appellant’s aunt drove Melinda home. Melinda reported the incident to the police that night. (RT 917-933.) Attrial, appellant called his mother, his aunt, and his uncle to testify about the events ofMarch 13, 1996. Accordingto appellant’s mother, Melinda and appellant were at her home between 11:00 a.m. and noon. Melinda did not appearscaredorfrightened;rather, she was cheerful. Melinda did not complain ofany injuries, and appellant’s mother did not see any. Appellant and Melinda left together. (RT 2118-2120, 2131.) Appellant’s aunt, Maria Hernandez,testified that appellant and Melinda cameto her house around 1:00 or 2:00 p.m. They stayed for one to two hours and said that they were planningto go to Mexico. Hernandeztried to talk them out of it. Melindadid not look scared orfrightened. Melinda did not complain of any injuries, and Hernandez did not notice any. Hernandez succeeded in talking appellant and Melindaoutofgoing to Mexico. Her husbandlater drove them somewhere. (RT 2144-2152.) Hernandez’s husband and appellant’s uncle, James Murphy, also testified that appellant and Melinda cameoverto his houseon the afternoon of March 13. Melinda did not appear scared or frightened. She did not say anything aboutbeing there against her will, and Murphydid not observe any injuries on her neck. Appellant and Melinda stayed for about three hours before Murphydrove them to a location near Parthenia and Van Nuys Boulevard. (RT 2184-2189.) In light of the testimony of appellant’s mother, aunt, and uncle, the prosecutor sought to admit rebuttal evidence, in the form of Melinda’s diary entry for March 13 (stating that appellant had broken into her home, stabbed her, choked her, and kidnapped her) and statements she had madeto a teacher on March 15 (that appellant had broken into her home, threatened her with a 97 knife, and forcibly took her to his aunt’s house) as prior consistent statements under Evidence Code sections 791 and 1236. With respectto the diary entry, appellant’s counsel objected on groundsofhearsay and lack of foundation as to whenthe entries were made. (RT 2211.) Appellant’s counselalso objected that the evidence was improper rebuttal, as it could have been, but was not, introduced in the case-in-chief. (RT 2224.) Thetrial court ruled that the diary entry was admissible, providedthat an adequate foundation could be made. The court also ruled that Melinda’s statements to her teacher were admissible under the prior consistent statement exception to the hearsay rule. (RT 2224-2228.) Attrial, Melinda’s mother, Susan Carmody,testified that Melinda wrote in a diary on daily basis. (RT 2261, 2266.) After Melinda’s death, Carmody read the diary. (RT 2266.) An entry dated March 13, 1996, in Melinda’s handwriting, stated, “Bird [appellant] broke in and stabbed me and choked me and kidnapped me. Wentto police station, went to Grandma’s.” (RT 2268.) Melinda’s teacher, Frank Torres, testified about his conversation with Melinda on March 15, 1996. Melindatold Torres that she had broken up with her boyfriend. Melinda further stated that this ex-boyfriend continuedtocall her, although she did not return his phone calls. She described that her ex- boyfriend hadrecently broken into her house andthreatened herthat ifhe could not have her, no one else could have her. Atthat time, he held a knife to her neck and dragged her out ofthe house into a car and drove herto his aunt’s house. (RT 2254-2256.) B. Appellant Has Forfeited His Confrontation Clause Claim To the extent appellant argues that the admission of Melinda’s diary entry and the statements she made to her teacher violated his right to confrontation under the Sixth Amendment (see AOB 91-92),this claim has 98 © been forfeited due to appellant’s failure to object on this groun d, and because appellant’s own wrongdoing led to Melinda’s absenceattrial. 1. The Failure To Object On Constitutional Grounds Forfeit s Appellant’s Claim A claim based on a purported violation ofthe Confrontation Clause m ust be timely asserted attrial or it is waived on appeal. (Evid. Code 353; P eople vy. Rodrigues, 8 Cal.4th 1060, 1118 (1994); see also People v. Alvarez, supra, 14 Cal.4th at p. 186 (Confrontation Clause issue waived where no timely and specific objection made on that ground). An objection based on h earsay groundsis insufficient to preserve a claim premised on the violation of the Confrontation Clause. (See People v. Burgener (2003) 29 Cal.4th 833, 8 69.) Here, appellant objected to the challenged evidence solely on grounds o f hearsay. There was noassertion that the admission of the statements viol ated appellant’s right to confront witnesses under the Sixth Amendmen t. Accordingly, appellant’s constitutional claim has been waived. 2. Appellant Cannot Complain About His Right To Confrontation When The Witness Is Unavailable Because Of His Own Wrongdoing Melinda was unavailable at trial because appellant arranged for his brotherto kill her. Appellant cannot legitimately complain that he could n ot confront Melinda when it was his own wrongdoing that prevented t he confrontation. The United States Supreme Court recognized this exception in Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed. 2d 177].) Crawfordcriticized the test in Ohio v. Robertsas allowing a jury “to 34, Ohio v. Roberts (1980) 448 U.S. 56 [100 S.Ct. 2531, 65 L.Ed.2d 597].) 99 hear evidence, untested, by the adversary process, based on a merejudicial determination ofreliability’ thus replacing “the constitutionally prescribed methodofassessing reliability with a wholly foreign one.” (Crawford, supra, 541 U.S. at p. 62.) However, the Court emphasized: In this respect, it is very different from exceptions to the Confrontation Clause that make no claim to be a surrogate means of assessing reliability. For example, the rule offorfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds,it does notpurport to be an alternative means ofdetermining reliability. (Ibid., citing Reynolds v. United States (1879) 98 U.S.145, 158-159 [25 L.Ed. 244], emphasis added.) In Reynolds, the Supreme Court asserted: The Constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if a witnessis absent by his own wrongful procurement, he cannot complain if competentevidenceis admitted to supply the placeofthat which he has kept away. The Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful act. It grants him the privilege of being confronted with the witnesses against him; but if hevoluntarily keeps the witnesses away, he cannotinsist on his privilege. If, therefore, when absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert that his constitutional rights have been violated. (Reynolds, supra, 95 U.S. at p. 158.) “The rule has its foundation in the maxim that no one shall be permitted to take advantage of his own wrong; and, consequently, ifthere has not been, in legal contemplation, a wrong committed, the way has not been openedfor the introduction of the testimony.” (/d.atp. 100 159; see also United States v. Cherry (10th Cir. 2000) 217 F.3d 811, 819-820 [a defendant may be deemed to have waived his or her Confrontation Clause rights if a preponderanceofthe evidenceestablishes, among other things,that he or she participated directly in planning or procuring the declarant’s unavailability through wrongdoing].) Appellant orchestrated Melinda’s murder to ensure she could nottestify against him attrial in the kidnapping case. Appellant is estopped by his own wrongdoing from asserting that he was deprived of an opportunity to confront Melinda when he madeher unavailable by havinghis brotherkill her to prevent herfrom testifying against him. Crawford does not bar admission ofMelinda’s diary entry or her statements to her teacher.*! C. The Trial Court Properly Admitted The Evidence The admission ofprior consistent statements is governed by Evidence Codesections 791 and 1236. Evidence Codesection 1236 provides: Evidence of a statement previously made by a witness is not made inadmissible by the hearsayruleif the statement is consistent with his testimony at the hearing and is offered in compliance with [Evidence Code] [s]ection 791. (Evid. Code, § 1236.) Evidence Code section 791 provides: Evidence of a statement previously made by a witness that is consistent with his testimonyat the hearing is inadmissible to support his credibility unlessit is offered after: (a) Evidence of a statement made byhim thatis inconsistent with any part ofhis testimonyatthe hearing has been admitted for the purpose of 35. The issue of forfeiture by wrongdoingis currently pending before the Court in People v. Giles, review granted Dec. 22, 2004, $129852. 101 attacking his credibility, and the statement was made beforethealleged inconsistent statement; or (b) An express or implied charge has been madethathis testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was madebefore the bias, motive for fabrication, or other improper motiveis alleged to havearisen. (Evid. Code, § 791.) Here, Melinda’s March 13, 1996 diary entry and the statements she made to teacher Frank Torres on March 15, 1996 were properly admitted as prior consistent statements pursuant to Evidence Code sections 1236 and 791. Appellant complainsthat the statements were not admissible under Evidence Code section 791 because they were not made before any other inconsistent statements within the meaning of subdivision (a), and they were not made before Melinda had a motiveto fabricate appellant’s guilt within the meaning of subdivision (b). (AOB 90-91.) Appellant’s argumentis unavailing, as both the diary entry and Melinda’s statementsto her teacher were admissible under Evidence Codesection 791, subdivision (b). Appellate courts have recognized an exception to the timing requirements ofEvidence Codesection 791, subdivision (b), when a charge of recent fabrication is made by negative evidencethat the witness did not speak of a certain matter when it would have been natural to do so. (See People v. Williams (2002) 102 Cal.App.4th 995, 1011-1012; People v. Gentry (1969) 270 Cal.App.2d 462, 473.) In Gentry, the Court ofAppeal explained the reasoning behind subdivision (b)’s requirementthat a prior consistent statement be made before the improper motive is alleged to have arisen as follows: The reason for this limitation is that when there is a contradiction betweenthetestimony oftwo witnessesit cannot help thetrier of fact in deciding between them merely to show that one of the witnesses has 102 asserted the same thing previously. “Ifthat were the argument, then the witness who hadrepeated his story to the greatest number of people would be the mostcredible.” (People v. Gentry, supra, 270 Cal.App.2d at p. 473, quoting 4 Wigmore, Evidence (3d ed.) § 1127, p. 202.) The court then explained the reasoning behind the exception to this rule as follows: Different considerations come into play when a charge of recent fabrication is made by negative evidencethat the witness did not speak of the matter before when it would have been natural to speak. His silence then is urged as inconsistent with his utterancesatthe trial. The evidenceof consistent statements at that point becomes proper because “the supposedfact ofnot speaking formerly, from which weare to infer a recent contrivanceofthestory, is disposed ofby denyingit to be a fact, inasmuchas the witness did speak andtell the samestory.” (People v. Gentry, supra, 270 Cal.App.2d at p. 473, quoting 4 Wigmore, Evidence (3d ed.) § 1127, p. 205.) In the instant case, by calling appellant’s mother, aunt, and uncle to testify that on March 13, 1996, Melindasaid nothing to indicate that she was with appellantagainsther will or that she wasinjured, the defense implied that Melinda’s testimony to the contrary at the preliminary hearing was recently fabricated. Thus, the exception outlined in Williams and Gentry applied in the instant case, becausethe prior consistent statements were introducedtorefute the defense position that Melinda’s silence at a time when it would have been natural for her to speak wasinconsistent with her testimonyat the preliminary hearing. Accordingly, Melinda’s diary entry and statements to her teacher were properly admitted under Evidence Code section 791, subdivision(b). (People v. Gentry, supra, 270 Cal.App.2d at p. 473; People v. Williams, supra, 102 Cal.App.4th at pp. 1011-1012.) 103 D. The Diary Entry And Statements To Melinda’s Teacher Were Not Testimonial In Nature, And Therefore The Introduction Of This Evidence Did Not Violate The Confrontation Clause Under Crawford To the extent appellant claims the introduction of the challenged evidenceviolated Crawford (AOB 91), this contention is meritless. The United States Supreme Court explained in Crawford that the core concern of the Confrontation Clauseis testimonial hearsay, which includes statements made duringpolice interrogationsandprior testimony ata preliminary hearing, before a grandjury,orat trial. (Crawford v. Washington, supra, 541 U.S.at pp. 50-53, 68.) The Court held that such statements are inadmissible unless the declarant is unavailable and the defendanthada prior opportunity to cross-examine. (Jd. at p. 68.) The Court, however,left “for another day any effort to spell out a comprehensive definition of‘testimonial,’” becausethe out-of-court statements cee at issue were made during a police interrogation and would be “‘testimonial’ under even a narrow standard.” (Jbid.) In the instant case, neither the diary entry or the statements Melinda made to her teacher were testimonial, as they were not made under circumstances that would lead an objective witness to reasonably believe that the statement would be available for use later at trial. (/d. at pp. 51-52, [“[a]n accuser who makesa formal statement to governmentofficers bears testimony in a sense that a person who makesa casual remark to an acquaintance does not”]; see also Parle v. Runnels (9th Cir. 2004) 387 F.3d 1030, 1037 (statements contained in diary constituted nontestimonial hearsay); see also People v. Corella (2004) 122 Cal.App.4th. 461, 467-468 [statements to 911 operator were not “testimonial”].) Accordingly, Crawfordis inapplicable. 104 E. Any Error Was Harmless In any event, any error was harmless,asit is not reasonably probable appellant would have obtained a more favorable result in the absence of th e alleged error. (People v. Watson, supra, 46 Cal.2d at p. 836.) Furthermore, an y error was harmless beyond a reasonable doubt. (See Chapmanv. California, supra, 386 U.S. at p. 24.) The challenged statements went solely to the kidnapping and assault charges, where the evidence of appellant’s guilt was truly overwhelming. Appellant admitted to Ramirez that he had tried to kidnap Melinda and that he had stabbed her in the neck. (RT 1160.) After the kidnapping, Melindareported the incidentto the police that evening and was still bleeding from her neck wounds whenthepolice arrived at her home. She also had bruises on her neck. (RT 949-955.) Although appellantinitially told the police that Melinda had accompanied him voluntarily, this was not credible in light of his admission to the police that he had hit and choked herthat day. (See RT 1045-1046.) In any event, he later acknowledgedto thepolice that he had made a mistake regarding the kidnapping case. (RT 1612.) In light of this evidence,any error in the admission ofthe diary entry and Melinda’s statement to her teacher wasclearly harmless. XI. THE TRIAL COURT PROPERLY INSTRUCTED THE JURY PURSUANT TO CALJIC NO.2.51 Appellant contends that CALJIC No 2.51, as given, improperly allowed the jury to determine guilt based on motive alone and shifted the burden of proof, implying that appellant had to show an absence of motive. (AOB 95- 101.) This claim lacks merit and should be rejected. 105 The trial court instructed the jury pursuant to CALJIC No. 2.51 as follows: Motive is not an element of the crime charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. Presence of motive maytend to establish a defendant is guilty. Absence of motive may tend to show that a defendantis not guilty. (RT 2654; CT 981.) This Court has previously rejected the argument that CALJIC No.2.51 implies that motive alone mayestablish guilt. (People v. Snow (2003) 30 Cal.4th 43, 97-98.) This Court has also rejected the argument that CALJIC No. 2.51 improperly shifts the burden ofproof. (See Peoplev. Cleveland (2004) 32 Cal.4th 704, 750.) Tothe contrary,the instruction merely informsthe jury that it may consider the presence or absence of motive. (/bid.; see also Peoplev. Estep (1996) 42 Cal.App.4th 733, 738.) Furthermore,to the extent appellant claims that CALJIC No. 2.51 stood out from other standard evidentiary instructions, i.e., CALJIC Nos. 2.03 (Consciousness Of Guilt - - Falsehood) and 2.06 (Efforts To Suppress Evidence), becauseit did not contain a cautionary admonition that motive alone wasinsufficientto establish guilt, this claim has been waived dueto appellant’s failure to requestclarification of the instruction. (People v. Cleveland, supra, 32 Cal.4th at p. 750.) In Cleveland, this Court found that such a challenge merely wentto the clarity ofthe instruction, and therefore it was not cognizable on appeal absenta request forclarification in the trial court. (/bid.) In any event, this Court rejected the argumenton the merits in the alternative. (Ibid.) Appellant’s claim should likewise be rejected. As in Cleveland, the trial court in the instant case fully instructed the jury on the reasonable doubt standard. (RT 1700-2701; CT 1046.) Thus, there is no reasonable likelihood the jury 106 would infer from CALJIC No. 2.51 that motive alone could establish gu ilt. Appellant’s claim mustfail. XI. THE TRIAL COURT PROPERLY INSTRUCTED THE JURY ON CONSCIOUSNESS OF GUILT PURSUANT TO CALJIC NOS,2.03 AND 2.06 Appellant contends the trial court erred in instructing the jury on consciousness of guilt pursuant to CALJIC No. 2.03 (Willfully False Or Misleading Statements) and CALJIC No. 2.06 (Attempt To Suppress Evidence). Appellant claims these instructions were impermissibly argumentative and allowed the jury to make irrational inferences, and that they violated his right to due process because they permitted inferences based on evidence that was not necessarily linked to the underlying crime. (AOB 102- 109.) As will be discussed, these contentionsare meritless. A. The Relevant Proceedings Below The prosecutor requestedthat the jury be instructed pursuant to CALJIC No. 2.03 thatif it found that appellant made a willfully false or deliberately misleading statement about the crimes,this evidence could be considered as tending to show a consciousness of guilt. The prosecutor argued that the instruction applied to statements appellant made to Detective Oppelt denying contact with Ricardo prior to the murder, despite the fact that his sister had testified that she had put appellant and Ricardo in contact with each other. Appellant’s counsel objected, stating, “I don’t believe that’s the kind of comment or statement that is addressed by this particular instruction.” He further arguedthat appellant’s statements to Detective Oppelt wentto collateral 107 matters. (RT 2303-2304.) Thetrial court concluded that the instruction was appropriate andinstructed the jury pursuant to CALJIC No. 2.03 as follows: Ifyou find that beforethistrial a defendant made a willfully false or deliberately misleading statement concerning the crimeor crimes for which he is now being tried, you may consider that statement as a circumstance tending to prove a consciousnessofguilt. However, that conductis not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide. (RT 2656; CT 985.) The prosecutor also requested that the trial court instruct the jury pursuant to CALJIC No. 2.06 onefforts to suppress evidence. The prosecutor argued that the instruction applied to appellanttelling Ramirez to tell Melinda not to go to court, and after the murder, appellant telling Ramirez not to say anything to the police. The prosecutor further argued that Ricardo had made efforts to conceal evidence by hiding the murder weaponin a wall heater. (RT 2304-2306.) Appellant’s counsel objected to the instruction, arguing that appellant’s statements did not amountto intimidation of a witness and that appellant had not concealed evidence. (RT 2307.) Thetrial court concluded the instruction was appropriate, and instructed the jury pursuant to CALJIC No. 2.06.as follows: If you find that a defendant attempted to suppress evidence against himself in any manner, such asby the intimidation of a witness and/or by concealing evidence, this attempt may be considered by you as a circumstance tending to show a consciousness of guilt. However,this conductis not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide. (RT 2656-2657; CT 986.) 108 B. TheInstructions Were Properly Given Appellant does not contendthe evidencewasinsufficient to support the giving ofCALJIC Nos.2.03 and 2.06. Rather, he claimsthe instructions were impermissibly argumentative and that they allowed the jury to makeirrational inferences. (AOB 102-109.) These contentions lack merit. This Court has repeatedly rejected the instant challenges to CALJIC Nos. 2.03 and 2.06. (See Peoplev. Stitely (2005) 35 Cal.4th 514, 555 [CALJIC No. 2.03 is not improperly argumentative and does not generate irrational inference of consciousnessof guilt]; People v. Benevides (2005) 35 Cal.4th 69, 100 [same]; People v. Holloway (2004) 33 Cal.4th 96, 142 [rejecting claim that CALJIC Nos. 2.03 and 2.06 are argumentative and fundamentally unfair]; People v. Nakahara (2003) 30 Cal.4th 705, 713 [rejecting claim that CALJIC No. 2.03 is impermissibly argumentative and allowedirrational inferences]; People v. Cash (2003) 28 Cal.4th 703, 740 [rejecting argumentthat CALJIC No.2.06 is improperly argumentative].) As this Court has explained, the cautionary language of CALJIC Nos. 2.03 and 2.06 helps a defendant by admonishing the jury to use circumspection with respect to evidence that might otherwise be considered decisively inculpatory. (People v. Jackson (1996) 13 Cal.4th 1164, 1224; accord People v. Holloway, supra, 33 Cal.4th at p. 142.) Moreover, as this Court has previously stated, “The inference of consciousness of guilt from willful falsehood or fabrication or suppression of evidence is one supported by common sense, which many jurors are likely to indulge even without an instruction.” (People v. Holloway, supra, 33 Cal.4th at p. 142.) Appellant has provided no compelling reason whyhis casecalls for a different result. Here, it would not have beenirrational for the jury to infer appellant’s consciousness of guilt from his false statement to the police that he had not been in contact with Ricardo or Uribe. Likewise, it would not have been irrationalfor the jury 109 to infer consciousness of guilt based on his efforts to prevent Melinda and Ramirez from testifying. Accordingly, appellant’s claim should berejected. XI. APPELLANT’S CLAIM THAT THE PROSECUTOR COMMITTED MISCONDUCT DURING HIS GUILT PHASE CLOSING ARGUMENTHAS BEEN WAIVED;IN ANY EVENT, THERE WAS NO MISCONDUCT Appellant contends the prosecutor committed misconduct during his guilt phase closing argumentbyattacking the honesty of appellant’s counsel and by improperly implying that there were facts not in evidence linking appellantto a plan to kill Melindathat involved both Ricardo and Uribe. (AOB 110-115.) These claims have been waived, dueto appellant’s failure to object on groundsofprosecutorial misconduct with respect to some ofthe instances of alleged misconductand his failure to request that the jury be admonished with respectto each instanceofalleged misconduct. In any event, these claims also fail on the merits. A. The Alleged Denigration Of Appellant’s Trial Counsel A recurring themein appellant’s counsel’s closing argumentin the guilt phasewasthat the jury shouldresist the prosecutor’s alleged attempts to invite the jury to engage in speculation. For example,he claimedthat the prosecutor had askedthe jury to speculate that appellant was the person whobroke into Margarita Pile’s car. (RT 2494-2496.)Appellant’s counselalso arguedthat 36. Appellant’s trial counsel seemingly acknowledgedthat the elements of automobile burglary had been established (RT 2493-2494), although he challenged the evidence establishing appellant as the perpetrator: So this person, whoeverit is, broke the window andthen tried to pry out the radio, leaving pry marks. [{] Myclient was arrested right there under the balcony. What did he break the 110 the prosecutor had encouragedthe jury to speculate that appellant intendedto kidnap Melinda when he entered her residence. (RT 2498.) Appellant’s counselfurther asserted that the prosecutor had askedthejury to speculate that Uribe actually answered the telephone whenappellant’s calls were forwarded to Uribe and also to speculate about the content ofthe telephonecalls. (RT 2509-2510.) At other points, appellant’s counsel argued that the prosecutor had encouraged unspecified speculation. (RT 2505, 2510, 2523-2524.) - In his rebuttal argument, the prosecutor denied appellant’s counsel’s allegations that he had askedthe jury to speculate and draw inferences in the absence ofany supporting evidence. (RT 2600.) The prosecutor explainedthat rather than asking the jury to speculate, he had asked the jury to: ~ look at all the evidence, look at it carefully, and you pull it together. You'll see it in perspective to one another, and you'll see one thing windowswith? Any evidence there was a rock inside the car? Or a hammerfound onhis person or under the balcony where he was foundbythe officer? Whatdid he useto try to pry out the radio, leaving pry marks on the face of it? [§] Any evidence of a screwdriveris foundin the car or on his person or under the balcony? No. [{] So just because a witness has testified to a series of events doesn’t mean the prosecution has given you all the information you need to makea decision. Weknowfrom all the other testimony that myclient is a gang member. He’sa gang kid. We know from the testimony of Detective Oppelt that gang kids aren’t real comfortable around police officers. Thereis not a great relationship. They don’tsit down and havechitchatsall the time voluntarily. So [the prosecutor] has asked youto speculate that maybe myclient broke into this car because he was cold or because he wanted an opportunity to steal a radio. But that’s pure speculation because what did he break into the car with? And whatdid heusetotry to pry out the radio[?] (RT 2495-2496.) 111 naturally leads to another conclusion. It’s not speculation. That’s just your job. You’re supposed to draw legitimate inferences from the evidence that’s presented to you. (RT 2600-2601.) The prosecutor continued his argument as follows: [PROSECUTOR]: But who wants youto speculate? [{] I want you to think about what the - - counsel has looked you in the eye unblinkingly and just said straight out, butter wouldn’t melt in their mouth, and I want you to think about- - . [RICARDO’S COUNSEL]: Objection, your honor. THE COURT:Asto the use ofthe phrase with referenceto counsel, sustained. Please go forward. [PROSECUTOR]: Forgive me. [§] I want you to think about the defendant’s position that was presented to you. Ifyou look at what was presented to you, [appellant] didn’t do anything. (RT 2601.) The prosecutor subsequently addressed appellant’s counsel’s argument that the prosecutor had askedthejury to speculate about appellantbeinginside Margarita Pile’s car: How do we know [appellant] wasin the car? [{]] Now,this is what I’m talking about. I thought [appellant’s counsel] had been in the courtroom during the testimony- - [APPELLANT’S COUNSEL]: I object to disparaging remarks about counsel. THE COURT: Sustained. 112 [THE PROSECUTOR]: I thoughtweall heard the sametestimony, and presented to you was this, how do we know he was even the one that wasin the car? I mean, you know, weheard that gang members don’t like to be around police. How do we know that [appellant] just didn’t go hide underneath the balcony andthereal burglars ran off and the police find him under there? Okay. And [appellant’s counsel] says it’s bald speculation. Forgive me, but! thought I heard Zury Terry say, “I watched him get out of the car, walk up to the front ofmy porch.” I thought I heard her testify that she saw him in court today, or the day that she testified. I thought I heard hersay that on the night that it happened, she saw him and identified him at that time as the person,that area waslit, the porch light waslit. We even heard the officer say, “Yes, we showedher,too.” She said, ““That’s him.” Is that speculation? I mean, how doesthat work? I mean,shetells you this is what happened. That’s not speculation. . . . (RT 2604-2605; see also RT 985, 989-990 [Terry testifying that she saw appellantinside the car, identifying appellant as the person she had seenin the car].) 1. Appellant Has Waived His Claim Concerning “Disparaging” Comments In general, a defendant may not raise an issue of prosecutorial misconduct on appeal unless a timely objection wasraised on the same ground in the trial court and a requestfor a curative admonition was made. (People v. Samayoa (1997) 15 Cal.4th 795, 841; People v. Berryman (1993) 6 Cal.4th 1048, 1072.) Exceptionsto this rule include where an objection or request for 113 admonition would be futile, where an admonition would not cure the misconduct, and where the court immediately overrules an objection and does not give counsel an opportunity to seek an admonition. (People v. Hill (1998) 17 Cal.4th 800, 820-821.) Finally, even if the reviewing court determines an admonition would not have sufficed, reversal is warranted only if, “on the whole record the harm resulted in a miscarriageofjustice[.]” (People v. Bell (1989) 49 Cal.3d 502, 535; see also People v. Bolton (1979) 23 Cal.3d 208, 214.) In the instant case, appellant’s counsel never objected to thefirst alleged disparaging remark. Although counsel for co-defendant Ricardo lodged an objection, appellant’s counsel did not join in the objection (RT 2601), and therefore the issue has not been preserved for appellate review. (See People v. Mitcham (1992) 1 Cal.4th 1027, 1048 [the failure to join in a co-defendant’s motion or objection waives the issue on appeal].) Furthermore, appellant’s counsel never asked that the jury be admonishedafter either of the alleged disparaging remarks. (RT 2601, 2604.) Moreover, any assumed harm from these “disparaging” comments could have been cured by an admonition, and appellant does not contend otherwise. (See. e.g., People v. Gionis (1995) 9 Cal.4th 1196, 1216-1217 [admonition cured a prosecutor’s statement, “You’re an attorney. It’s your duty to lie, conceal and distort everything and slander everybody’; People v. Price (1991) 1 Cal.4th 324, 454-455 [admonition cured prosecutor’s remark about defense counsel’s “sleazy” action]; People v. Edelbacher (1989) 47 Cal.3d 983, 1030 [admonition could have cured prosecutor’s characterizations of defendantas a “contractkiller,” a “snakein the jungle,” “slick,”“tricky,”a “pathologicalliar,” and “oneofthe greatestliars in the history ofFresno County’”’].) The prosecutor’s statements here werefar less “disparaging”than the above examples. Because an admonition would have cured any assumed harm,and because appellant’s trial counselfailed to object 114 in oneinstance and did not seek an admonition in either instance, his claim of misconduct has been waived. (See People v. Welch, supra, 20 Cal.4th at p. 701, 753; People v. Hill, supra, 17 Cal.4th at p. 820; People v. Arias (1996) 13 Cal.4th 92, 159.) 2. There Was No Misconduct and Appellant Suffered no Prejudice Assuming arguendo that the claim is not waived, it is without merit. Under state law, prosecutorial misconduct only occurs when the prosecutor engages in “‘the use of deceptive or reprehensible methods to attempt to persuadeeither the court or the jury.’ [Citations.]” (People v. Espinoza (1992) 3 Cal.4th 806, 820, quoting People v. Strickland (1974) 11 Cal.3d 946, 955; see also People v. Gionis (1995) 9 Cal.4th 1196, 1215.) A prosecutor’s statements are misconduct only if there is a “reasonable likelihood” the jury will improperly misconstrueor misapply the statements. (People v. Frye (1998) 18 Cal.4th 894, 970; People v. Sanders, supra, 11 Cal.4th at p. 526.) Federal due process is not violated unless the offending remarks are so egregious as to “infect” the entire trial with unfairness. (Frye, supra, 18 Cal.4th at p. 969.) Appellant argues the prosecutor’s comments denigrated and attacked the integrity ofhis trial counsel. (AOB 111-112.) Appellant is mistaken. While it is improper for a prosecutor to denigrate a defense attorney (becauseit directs a jury’s attention away from the evidence adducedattrial), the prosecutor's comments must be viewed in relation to the defense attorney’s remarksin order to determine whether the former constituted a fair response to the latter. (See People v. Young (2005) 34 Cal.4th 1149, 1189; People v. Frye, supra, 18 Cal.4th at p. 978.) In the instant case, there is no reasonable likelihood that the jury construed the prosecutor’s remarks as an attack on defense counsel’s integrity. 115 (See People v. Young, supra, 34 Cal.4th at p. 1189.) Rather, viewed in the context of defense counsel’s argument and the prosecutor’s response, the prosecutor was merely highlighting thefallibility of defense counsel’s assertion that the prosecutorhad askedthe jury to speculate that appellant had beeninside the burglarized car. Defense counsel had arguedthat the jury would have to speculate in orderto place appellant in the car. (RT 2495-2496.) Replying to this argument, the prosecutor merely pointed out that there had been direct testimony of appellant’s presence in the car. Thus,it was highly unlikely that the jury would construe the prosecutor’s comments as a personal attack on defense counsel’s integrity as opposed to a criticism of the position he espoused. Appellant has failed to demonstrate any misconduct occurred. Moreover, any possible misconduct was plainly harmless. This Court has held that: Prosecutorial misconduct is cause for a reversal only when it is “reasonably probable that a result more favorable to the defendant would have occurred had the district attorney refrained from the comment attacked by the defendant.” (People v. Milner (1988) 45 Cal.3d 227, 245, quoting People v. Beivelman (1968) 70 Cal.2d 60, 75.) The prosecutor’s remarks directed at appellant’s trial counsel were brief and isolated. Thetrial court sustained an objection made by co-defendant’s counselto the first challenged commentand sustained an objection made by appellant’s counsel to the second challenged comment. Following each sustained objection, the prosecutor’s ensuing argument madeit clear that he was rebutting the position advanced by appellant’s counsel rather than attacking counsel personally. Accordingly, any possible misconductwasharmless. 116 B. The Alleged Arguing Of Facts Not In Evidence During closing argument, appellant’s counsel argued that Alma Cruz and Sandra Ramirez were untruthful whenthey testified that appellant asked Cruz whether she wouldkill a “homegirl.” Appellant’s counsel further argued that Cruz “embellished” when she testified that appellant also told her he already had someone working on it. (RT 2516-2522.) In the prosecutor’s rebuttal, he respondedto appellant’s counsel’s argumentas follows: [THE PROSECUTOR]: What I’m sayingis that if the girls were going to say something that was to implicate [appellant] in this, why don’t theyjust comestraightout and say it? Ifthey really wantedto get this guy, for God knows what reason, why didn’t they say [appellant] said, hey, I’ve got Ricardo and [Uribe] working onthis? (RT 2625.) | Appellant’s counsel objected, asserting that the prosecutor was arguing facts not in evidence. Thetrial court overruled the objection. (RT 2625.) 1. Appellant’s Claim Has Been Waived Atthe outset, appellant’s claim of misconduct has been waived due to trial counsel’s failure to make a timely and specific objection on grounds of prosecutorial misconductandhis failure to request an admonition. (See People v. Gionis, supra, 9 Cal.4th at pp. 1216-1217 [to preserve claim of alleged prosecutorial misconduct for appellate review, the defendant must assign misconduct and request a curative admonition].) Here, appellant’s counsel objected on grounds of arguing facts not in evidence. (RT 2625.) However, he did not object on groundsof prosecutorial misconduct and did not request an admonition. Because an admonition could have cured any harm,appellant’s claim has been waived. (People v. Hill, supra, 17 Cal.4th at p. 820.) . 117 2. There Was No Misconduct; Nor Was There Any Possible Prejudice Even if appellant preserved this claim, it must be rejected. Whileitis misconduct for a prosecutor to argue facts not admitted into evidence (People v. Cunningham (2001) 25 Cal.4th 926, 1026), it is permissible to discuss the evidence and to comment on reasonable inferences that may be drawn therefrom. (People v. Morales (2001) 5 Cal.4th 34, 44.) “The argument may be vigorous as long as it amounts to fair comment onthe evidence, which can include reasonable inferences, or deductions to be drawn therefrom.” (People v. Hill, supra, 17 Cal.4th at p. 819, internal quotation marks omitted.) | Here, the prosecutor’s argumentwasa fair response to defense counsel’s claim that Cruz and Ramirez had fabricated the highly incriminating statements attributed to appellant. In rebutting this assertion, the prosecutor logically argued that had the twogirls wantedto falsely implicate appellant, they would have made up testimony that more directly incriminated appellant. Furthermore, contrary to appellant’s assertion, the prosecutor did not link appellant to evidence admitted only against Ricardo. While Ricardo’s statement to the police (acknowledging his own and Uribe’s involvementin the crime), was admitted solely against Ricardo, there was ample independent evidence establishing Ricardo’s and Uribe’s involvement. It is undisputed that Ricardo was the shooter, as several eyewitnesses saw him fire several times at Melinda. In addition, several eyewitnesses provided testimony demonstrating Uribe’s involvementin the shooting. Ricardo chastised Ramirez in Uribe’s presence for bringing too many people with her when she “knew” what was going to happen. Uribe wasalso present when Ricardo told Ramirez to say it was a driveby if anything happened. Had Uribe not been involved in the plan, it is unlikely Ricardo would have made these comments in Uribe’s presence. Andlastly, Uribe was 118 the one who summoned Melinda to talk to Ricardo just b efore the fatal shooting. Thus, aside from Ricardo’s statement to the poli ce implicating himself and Uribe, the independent evidence supported a th eory that both Ricardo and Uribe were involved in the murder. Accordin gly, when the prosecutor suggested that if Cruz and Ramirez really wanted to implicate appellant they would havetestified that appellant claimed he had R icardo and Uribe working on killing a “homegirl,” he did not link appellan t to evidence admitted solely against Ricardo. It is perfectly permissible to argue inferences drawn from the evidence. (People v. Farnam (2002) 28 Cal.4th 107, 169; People v. Cunningham (2001) 25 Cal.4th 926, 1026; People v. Mitc ham, supra, 1 Cal.4th at p. 1052; People v. Younger (2000) 84 Cal.App.4th 1360 , 1380.) The record in this case clearly refutes appellant’s claim. Appellant’s claim of misconduct should berejected. In any event, even if the prosecutor’s comments amounted to arguing facts not in evidence and therefore constituted misconduct, there was no prejudice. The evidence against appellant was compelling. The nig ht before Melinda’s death, appellant essentially admitted to Ramirez and Cruzthat h e had someone working on killing one oftheir “homegirls.” Appellant had a strong motive to kill Melinda, to prevent her from testifymg against him at the kidnappingtrial. Appellant was adamant that Ramirez bring Melinda to the alley on the night of the shooting. After the shooting, appellant lied to the police about having beenin contact with his brother and Uribe. Healsoini tially attempted to deny any contact with Ramirez. Anybrief reference to facts not in evidence did not prejudice appellant. 119 XIV. APPELLANT’S CLAIM THAT THE PROSECUTOR COMMITTED MISCONDUCT DURING HIS PENALTY PHASE ARGUMENT HAS BEEN WAIVED; IN ANY EVENT, THERE WAS NO MISCONDUCT Appellant contends the prosecutor committed misconduct during his penalty phase argument by arguing that the death penalty was required to protect the witnesses in this case, by arguing that the rule of law depended on the imposition of the death penalty, and by contrasting life in prison with the victim’s family visiting the victim’s grave site. (AOB 116-127.) These claims have been waived, due to appellant’s failure to object on grounds of prosecutorial misconductandhis failure to request that the jury be admonished. In any event, these claimsalso fail on the merits. A. The Relevant Proceedings Below At the outset of the prosecutor’s penalty phase argument, he informed the jurors that they wouldreceivea very specific instruction, CALJIC No.8.85, regarding the factors to be considered in determining the appropriate penalty. The prosecutor stated that the jurors were to consider the aggravating and mitigating factors, although there was no mathematical formula for determining the penalty. (RT 2847-2848.) The prosecutor emphasized factor(a), the nature and circumstances ofthe crimes for which appellant had been convicted in this case. (RT 2848-2849.) The prosecutoralso notedthat the jurors could consider underfactor (b) the presence or absenceofcriminal activity by appellant other than the crimes for which he wastriedin the instant case, and that the incident with the jail deputies fell within this category. (RT 2851.) The prosecutor reiterated that the aggravating and mitigating factors set forth in CALJIC No. 8.85 would guidethe jury in their decision. (RT 2852.) 120 The prosecutor argued that the purpose of introducing evidence of the jail incident was to demonstrate appellant’s true demeanor, as opposedto the demeanorhe demonstratedin the courtroom. (RT 2852-2853.) The prose cutor further added that they jurors should consider appellant as the person who attacked Melinda with a knife andtold herto “quit crying” as he took her aw ay fromher home. Theprosecutoralso stated that appellant should be consider ed as the person who was caughtbreakinginto a car and when confronted by Zu ry Terry said, “Get back in the house, bitch, or V’ll hurt you.” The prosecutor added that appellant had stood up during the preliminary hearing in t he kidnapping case and said, “I’m not going to take this.” (RT 2853-2854.) The prosecutor then argued as follows: Now,I wantto talk about the crime itself, and I wantto talk about somethings that you might consider and some of this is revisiting, and I’m going to go through it quickly. But we just talked about him breaking into the house andtaking [Melinda], telling her to quit crying. Wetalked about him goingto the - - we talked about him going through Sandra Ramirezto tell [Melinda] not to testify. And when she does testify, what happens? He has herkilled. That in a nutshell is what he has done. But I want to look at the circumstances surrounding this and whathe hasleft in his wake. [ff] Whodid heget to do this? His own youngerbrother. Now,I’m certainly not asking you to feel sorry for Ricardo Lopez. Ricardo Lopez made his own decision. But if you recall, she did nothing to him. Theonly reasonthathe killed her was because he asked him to. [Appellant] wantedthis girl dead and he didn’t care that he even used his own brotherto doit. His own brother’s future was expendable to him. Not to mention [Melinda’s] life. Or the futures andthe lives of those that loved and cared about her. 121 You lookat the victim here. And I want you, as a circumstance to this crime,this is a girl that was one weekpast her 16th birthday. She just turned 16. Now,as a mitigating factor you mightbe askedto consider the age of [appellant]. What was he, 22, 23 at the time of this crime? That he had- - is that mitigating? He’s not my age. But I’Il tell you what, he’s no 18-year-old, no 19-year-old, not even a 20-year-old. He’s a 22-year- old manthattakes a 14 year-old-girl as his girlfriend andhasherthrough her 15th year basically and wants to marry her. Do you realize that when he kidnapped her and wanted to go to Mexico, she wasonly 15 at that point? Andthen, because, as younggirls do, they get older, they move on, they mature, some people actually grow out ofthese idiotic endeavors that they are in when they’re kids and younger and they actually do have a future. Whoelse did he leave in his wake here? Look at the witnesses in this case. [J] Look at Sandra Ramirez and Alma Cruz. Lookat what position they were put in. [APPELLANT’S COUNSEL]: Objection. Improper argument. THE COURT: You may continue. Overruled. [THE PROSECUTOR]: The circumstances surrounding this offense, he arranged through them, using them to get someonethat was their friend in a position to be killed. And during that conversation what is he talking about? He’s talking about the Mexican Mafia. He’s talking about dues. He’s talking about killing homegirls. And then afterwards they’re told not to say anything. They still had enough courageto do theright thing, but it took a lot of courage. 122 So when doestheir nightmare end? Whendo they stop looking over their shoulders? (RT 2854-2856.) The prosecutor then discussed the victim impact testimony. He explainedthat the testimony from the victim’s family was necessary for the jury to “understand what has beenleft behind” and “what the circumstancesofthis crimetruly are.” The prosecutorstated that his purpose in showing photographs of the victim with her family was “certainly not to whip up you emotions”but rather “to show youthat these are memories that these people have and these are the faces for what they saw as a future for their daughter, their granddaughter,their grandchildren.” (RT 2857.) The prosecutor discussed the impact that Melinda’s death had on her grandmother, whotestified that she was obsessed with revenge and thought about the murder on a daily basis. The prosecutor also discussed the impact Melinda’s death had on her mother. (RT 2858-2859.) The prosecutor continued his argumentas follows: Now,I was just talking about like these feelings of vengeance and necessity for revenge, or whatever, on the part of the family. How can they not havethose feelings and how do they deal with them? Or what do wedoin this society? Wedonot say, okay, we take care ofbusiness. Wedo notallow that because weare a society of laws. Wehavea social compact, a contract, if you will, where we say because weare a society of laws, because we do notallow youto go out there and get your eye for an eye, tooth for a tooth, limb for a limb, we do not allow that because we as a society would fall into chaos. We would have vendettas. We would have people being killed on half truths and not on complete information and out of emotion. 123 Andthat is why you,as ajury, has been selected here. And what we do is we sit there and say, no, we will determine justice here. And the way wewill do thatis that we lookatall ofthese circumstances, we will look at this crime, and we will not out of emotion, we will lookat this crime and wewill see objectively whatit is that has been done here and whatis the appropriate penalty, and wewill look at everything around the crime. Wewill look at the nature of this crime. We will look at the defendant. We will look at mitigating evidence, and we will seek justice. And we will come back with a just verdict. So wesay to these families, we say to them,trust us. Just be patient. (RT 2859-2860.) After a break, the prosecutor resumed his argument by discussing the role ofa jury trial in the criminal justice system, noting that a jury takes the place of individuals engaging in “self help.” He observed that mercy is a part of the system but arguedthat it was not warranted in this case. The prosecutor argued that the crime was “horrible” and went to the heart of the criminal justice system, as appellant reached out from behind the walls of a custodial facility to kill a witness, who wasjust a child. (RT 2861-2862.) After another break, the prosecutor discussed the optionof sentencing appellant to life in prison without the possibility of parole. The prosecutor arguedthat if appellant received such a sentence, he wouldstill be able to read, watchtelevision, exercise, and maintain relationships with friends and family, while the victim’s family wouldno longer beable to have any contact with her, other than visiting her grave site. (RT 2865-2866.) At that point, appellant’s counsel objected on the ground that the prosecutor was asking the jury to base its decision on emotion only. Thetrial 124 court noted the objection, but made no ruling. (RT 2866.) The prosecutor proceeded with his argumentas follows: [PROSECUTOR]: Make no mistake aboutit. You are asked to evaluate this in a detached objective, let’s say, manner. What I’m talking to you about is an emotional- - is emotional, but I’m no asking you to be - - to leave reason behind. I want you - - what I’m saying to you is that I want you to understand the gravity of what has happened here, and I want you to understand what has beenleft in [appellant’s] wake. The crime did not end when [Melinda]fell in the street. The injury continues, andthat is something that you should consider as whatis the appropriate penalty here. (RT 2866.) Theprosecutor then returned to the theme ofhow the nature ofthe crime threatened the judicial system, since appellant murdered Melinda because she was a witness to a crime. The prosecutor argued that the court system cannot function without witnesses who are willing to testify. (RT 2867.) The prosecutorfurther argued that the system failed to protect Melinda,noting that even though she wasafraid,shestill testified, only to be murdered by appellant. (RT 2867.) The prosecutor continued to argue as follows: And whenyoulook at what - - like Sandra Ramirez, she’s told to tell this girl, don’t testify, and she does, and then Sandra Ramirez has been used as a pawn to getherthere to be executed. Sandra Ramirezis told about- - again like we’re talking about, dues and [the Mexican Mafia], he’s already got someone working on it. And then she sees the person that he supposedly cares about - - and obviously he did in his own selfish way - - murdered. 125 Think about any witness. If you think aboutit, if they were to find outthat they - - you just happento be- - unfortunately witness a crime and you goto court andsaythe right thing and youfind out, like Zury Terry, by the way,he killed the last witnessthattestified in this case,that his reach extended beyondthe walls of his cell. These witnesses have courage to try and dotheright thing. They knowthe obligations that are placed upon them as well, the obligations that is placed uponall ofus as citizens, that weat least try. But who would not hesitate knowing that? Who would not hesitate knowing that? Who wouldnot hesitate knowingthat a person such as [appellant] here has connections? Remember, Sandra Ramirez received thatletter. Just think about whattrust these witnesses, these victimsplace in us, andit is yourjob to makesurethat, through your search ofjustice and through your looking at what is the appropriate penalty, that that trust is not misplaced. Becauseif people everfeel that that trust is misplaced, we will not be able to function as a society. We cannot do anything butfall in some sort of chaos if people donottrust this system, do not even - if they havecertain misgivings, at least be able to say it is my duty to believe in this system,I will try and followthis, andplacetheir lives, their need for justice in your hands. What they must knowisthat if anything does happen to them ortheir families, that there is - - that it will not go unaddressed, that we, as a society, take this seriously, as a complete affront to the very core of our system,andthattheir trust is not misplaced and that yes, we will try to knowtheir hearts, know what has been done to them, what damage has been done to them. Andthat we will say, yes, I’ve tried to know your heart, I’ve tried to know the emptiness that survivors feel, I’ve tried to 126 knowthe courage ofthe witnessesthat are willing to come in. P’ve tried all of this, and I’ve lookedat the defendant as well, and so then it comes backto youto say - - you lookat the defendant and you’ll haveto say to him, I know whatyou are. I know what you’ve done. And wewill not, we cannot,if we’re to survive as a society,tolerate this. It cannot be done. It cannot be accepted. You haveto say to him very clearly that this was way over the line. And that if you have anything to say about it at all, he will never be put in a position where he will be able to do this again. (RT 2868-2870.) At this point, appellant’s counsel objected on grounds of “improper argument.” Thetrial court notedthe objection, but made no ruling. (RT 2870.) The prosecutor continued his argument by asking the jurors to consider the nature of the crime, and the courage of the witnesses whotestified, including Melinda. He argued that although Melinda maynot haverealized the danger oftestifying, the witnesses who followed her did. (RT 2870.) The prosecutor continued: And if they had the courage to put their faith and their trust in this system, I’m asking you to have the courage to take a look at this and comeback and- - look at your hearts and come back andsay, justice demandsthis. We know whatjustice demands, andjustice demandsthe ultimate penalty from this defendant. Justice demands the death penalty. I knowthat’s not- - don’t think those words comeeasily offmylips. But I trust that when you look and consider what we’re talking about here, what this meansto us, what is the moral andjust verdict, that you will come back with the death penalty. Thank you. (RT 2870-2871.) 127 B. The Alleged Appeals To Passion Or Prejudice Appellant first argues that the prosecutor committed misconduct by making comments calculated to arouse the jury’s passion or prejudice by improperly urging the jury to protect Sandra Ramirez and Alma Cruz. (AOB 116-122.) Hefurther arguesthat the prosecutor improperlytold the jury that the rule oflaw dependedon the imposition ofthe death penalty. (AOB 121-122.) These contentions are waived due to the failure to object on grounds of prosecutorial misconductandthe failure to request a curative admonition. The claims also fail on the merits. In support ofhis argumentthat the prosecutor improperly urged the jury to protect Ramirez and Cruz,appellant notes that the prosecutor argued that appellant subjected Ramirez and Cruz to a continuing nightmare. Appellant next observes that the prosecutor concluded bytelling the jury to protect Ramirez and Cruz, andthat the future of our society was in the jurors’ hands. Appellant finally asserts that the prosecutor told the jury the only way to accomplish this goal wasto put appellant to death so he would never be ina position to “do this again.” (AOB 119,citing RT 2856, 2869, 2870.) Of the statements appellant currently challenges,his trial counsel only objected when the prosecutor argued that the death penalty was appropriate so that “(Appellant] will never be put in a position where he will be able to do this again.” (RT'2870.) Appellant’s trial counsel objectedto the latter comment on grounds of “improper argument.” Thetrial court respondedthatthe obj ection was noted. (RT 2870.) Appellant did notobjectto thefirst two challenged comments. Although he objected to the final comment on groundsof“improper argument,” he did not assign prosecutorial misconduct, nor did he ever obtain a ruling on the objection. Finally, with respectto all of the challenged comments, appellant never sought a curative admonition. Accordingly, appellant’s claims of 128 prosecutorial misconduct have been waived. (See People v. Hill, supra, 17 Cal.4th at p. 820.) In any event, there was no misconduct. While it is misconductfor a prosecutorto “make comments calculated to arouse passion or prejudice”(see People v. Mayfield (1997) 14 Cal.4th 668, 803), there is a wider range of permissible argumentin the penalty phase ofa capital trial. As this Court has explained: Although appeals to the sympathy or passions of the jury are inappropriate at the guilt phase [citation], at the penalty phase the jury decides a question the resolution of which turns notonly onthefacts, but on the jury’s moral assessment of those facts as they reflect on whether defendant should be put to death.It is not only appropriate,but necessary, that the jury weigh the sympathetic elements of defendant’s backgroundagainst those that may offend the conscience. (People v. Haskett (1982) 30 Cal.3d 841, 863; see also People v. Cox (2003) 30 Cal.4th 916, 966.) In the instant case, the prosecutor’s argument wasnot so inflammatory as to be overly prejudicial. (See People v. Smith (2003) 30 Cal.4th 581, 634.) The prosecutor’s argument focused on the evidence and the circumstances of the crime, which was permissible under section 190.3, subdivision (a). The prosecutor urged the jury to find that a murder committed for the purpose of preventing a witness from testifying was a particularly aggravated form of murder, because it undermined the entire criminal justice system. Such argument was permissible in the penalty phase ofa capital case. (Cf. People v. Mayfield, supra, 14 Cal.4th at p. 803 [argument suggesting murderofa police officer wasa particularly aggravated form ofmurder was permissible in penalty phase of capital case].) 129 Moreover, to the extent appellant claims the prosecutor committed misconductby suggesting that appellant wouldpose a dangeras long as he was imprisoned (see AOB 120), this contention is meritless. This Court has repeatedly held that argumentdirected at a defendant’s future dangerousness 1S permissible at the penalty phase of a capital trial, provided thatit is based on evidence ofthe defendant’s past conductrather than expert testimony. (People y. Bradford (1997) 14 Cal. 4th 1005, 1064; People v. Fierro, supra, 1 Cal.4th at p. 249; People v. Davenport (1985) 41 Cal.3d 247, 288.) C. Contrasting Life In Prison With The Victim’s Family Visiting Melinda’s Grave Site Appellant also argues that the prosecutor improperly contrastedlife in prison with the victim’s family visiting Melinda’s grave site. He claimsthat the argument was an inflammatory call for vengeance and improperly used the victim impact evidence. (AOB 122-126.) Onceagain, this claim has been waived. Although appellant’s counsel objected,the trial court did not make a ruling on the objection. Appellant’s counsel neverpressedfora ruling, nor did he request an admonition. (RT 2866.) Because an admonition could have cured any harm, appellant’s claim has been waived. (Peoplev. Hill, supra, 17 Cal.4th at p. 820.) In any event, the contention is meritless. The prosecutor’s argumentthat if appellant was sentencedto life in prison he would still be able to read, watch television, exercise, and maintain relationships with family and friends, while the victim’s family could only visit Melinda’s grave site, merely stated the obvious. Due to Melinda’s death, her family could have no further contact with her other than visiting her grave site. Furthermore, the prosecutor’s comment wasbased on the evidence, Melinda’s stepmotherhadtestified that theyvisited Melinda’s grave on holidays. (RT 2811.) Nor did the argument call for 130 vengeance. Although Melinda’s grandmothertestified that she was obsessed with thoughts of revenge, she never stated any opinion regarding the appropriate penalty. (RT 2818-2819.) Finally, any misconduct was harmless. The prosecutor's penalty phase argumentstressed that the jury was guided by CALJIC No. 8.85 with respect to the applicable aggravating and mitigating factors. (RT 2847-2848.) Moreover, the focusofthe argument wason the circumstances ofthe crime, not on any improperappeals to passion or prejudice. Any improper argument was brief and isolated. Reversal is not warranted. XV. THE TRIAL COURT HAD NO SUA SPONTE DUTY TO INSTRUCT THE JURORS TO DISREGARD APPELLANT’S RESTRAINTS IN REACHING THE PENALTY VERDICT Appellant contendsthetrial court erred in failing to instruct the jury, sua sponte, to disregard his restraints in reaching the penalty verdict. Appellant claims the failure to so instruct violated his right to due process, to a fair and impartial jury, and to a reliable penalty verdict. (AOB 128-131 .) Respondent submits the trial court had no sua sponte duty to instruct the jury to disregard "restraints that were notvisible. A. The Relevant Proceedings Below Duringtheguilt phase,thetrial court interrupted Sandra Ramirez’sdirect examination and asked thejurorsto leave the courtroom. (RT 1224.) Outside the presenceofthe jury,thetrial court explainedthatit had doneso becauseit appearedthat Ricardo mightbeill. Thetrial court stated that Ricardo had bent over from the waist, and the sheriffs deputy had placed a garbage can nextto 131 him. At that point, the court had excused the jury. Once the jury had exited, Ricardo knocked the garbage can to one side, and the sheriffs deputies responded to Ricardo. As they did so, appellant started moving in his chair, attempting to get out of it or move with the chair. The trial court pushedthe “panic button,” and several additional sheriff’s deputies arrived and subdued appellant and Ricardo. (RT 1225-1226.)” Thetrial court solicited suggestions from counsel on how to avoid further incidents. The prosecutor suggested that appellant’s and Ricardo’s hands should be restrained. The prosecutor stated that during the scuffle, appellant had scratched him and had attempted to get a hold ofthe bailiff as well. The prosecutor argued that restraining the defendants’ hands would reduce the risk to the sheriff's deputies, and noted that this could be done in such a way that was notvisible to the jury. (RT 1242.) Appellant’s counsel respondedthat he would object to any restraint that was visible to the jury. (RT 1243.) Thetrial court asked the bailiff whether it was possible to restrain the defendants with handcuffs that would not be visible to the jury. (RT 1244.) Thebailiff replied, [BAILIFF]: I think so, your Honor. Onthe front ofthe belt, the restraining belt, it has a D-ring on the front ofit that we can run the handcuffs through, and that would locktheir hands downatwaist level, but in front. I don’t know what you wantto use to coverit from there, but that would be possible. It would be under the desk, at least for [appellant] and ifwe move[Ricardo] forward,his, too, would be under the desk. (RT 1245.) 37. Apparently, both appellant and Ricardo had been “belted in”to their chairs. (RT 1240; see also RT 92 [discussion of chairs with restraints that are not visible to jurors].) 132 Thetrial court stated that it would consider handcuffs for appellant but not Ricardo. Based on where appellant and Ricardo weresitting, the jury would not be able to see handcuffs on appellant, although it would be ableto see handcuffs on Ricardo. The court also stated that it would consider whether to use a “react belt” on appellant and Ricardo. (RT 1249.) When the proceedings resumed the following day, appellant was restrained with a security belt attached to the back of his chair, and also by handcuffs attached to a ““D’ ring”in the front ofthe security belt. Appellant’s counsel objected to the use of the handcuffs, arguing that they were unnecessary. (RT 1257.) Appellant’s counsel further argued that the jury might be able to see or hear the handcuffs. (RT 1258.) Thetrial court stated that based on the outburst, it had the discretion to removeboth defendants from the courtroom or to have them wearelectric belts. However, the court elected have the defendants wear handcuffs, “the most minimal, additional kindofrestraint on them to insure as best we can without prejudicing the defendants in some wayto assurethat the safety and security of the courtroom can be accommodated.” (RT 1261.) The trial court further concludedthat, “unless the defendants makeit so, the jury will not know that they are in cuffs.” (RT 1262.) Atthe penalty phase,the prosecution called Deputy SheriffAngela Perez to testify about an incident at the county jail in which appellant committed a battery on a correctional officer. The prosecutor asked Deputy Perez to describe how she handcuffed him onthe dayofthe jail incident. Deputy Perez respondedas follows: With the chains in my hand. They’re similar - - I don’t know what he’s wearing now,but it’s a handcuff on each end and it - - it’s gota chain, and I was holding him like this. As I’m walking overto him - 133 he wassitting on the bench. I could see his hands clenchedlikethis- - is when I told Deputy Romoagain to call for backup. (RT 2792.) Appellant’s counsel did not object and never requested that the jury be instructedto disregard appellant’s restraints. Nor did the trial court sua sponte instruct the jury to disregard appellant’s restraints. (See RT 2792.) B. There Was No Sua Sponte Duty To Instruct The Jury To Disregard The Restraints When a trial court concludes that a defendant must wear visible restraints, the court has a sua sponteduty to instruct the jury that suchrestraints should haveno bearing on the determinationofthe defendant’s guilt. (People vy. Duran (1976) 16 Cal.3d 282, 291-292.) However, whenthe restraints are concealed from the jury’s view,this instruction should not be given unless requested by defendantsince it might invite initial attention to the restraints and thus create prejudice which would otherwise be avoided. ([bid.) In the instant case, there is no indication that the restraints were visible to the jury. While Deputy Perez’s testimony could be interpreted as suggesting that appellant was wearing some form ofhandcuffs, it was equivocal. Deputy Perez testified that she did not know what appellant was wearing at trial, indicating thatrestraints, if any, were not visible to her. The jurors could have inferred that appellant was not wearing any form ofrestraints, since Deputy Perez abandoned any attempt to compare the handcuffs appellant was wearing at the timeofthejail incident to any restraints he was wearing in the courtroom. (RT 2792.) Becausenorestraints were visible and it was not clear that the jurors were aware that appellant was wearing restraints, the trial court had no 134 sua sponte duty to instructthe jury to disregard appellant’s restraints. Such an instruction would have risked drawing initial attention to appellant’s restraints. (Cf. People v. Medina (1996) 11 Cal.4th 694, 761 (Medina ID) [where it was doubtful anyjurors saw the defendantin shackles for more than a few seconds, and the defendant was absent from a large portion ofthe trial due to disruptive conduct,“a cautionary instruction could havecalled undueattentionto the fact that defendant was a shackled, dangerous man”’].) In any event, any possible error was harmless. In People v. Medina (1990) 51 Cal.3d 870, 898 (Medina J), this Court held that any errorin failing to instruct the jury to disregard a defendant’s restraints during the sanity phase of the proceedings was harmless. This Court observed that the risk of substantial prejudice to a shackled defendant decreases after a finding of guilt. (Ibid.) In People v. Slaughter (2002) 27 Cal.4th 1187, 1214, this Court cited Medina I with approval and concluded that under any standard, it did not appearthat the jury’s penalty phase verdict would have been affected even if the jurors were awarethat the defendant was wearing a restraint, since the jurors knew the defendant had been convicted of murdering two people during the commission of a robbery. Likewise,in the instant case, there is no indication that the jurors were aware of appellant’s restraints during the guilt phase. Although it is possible that Deputy Perez’s testimony in the penalty phase alerted the jurors to the possibility that appellant was wearingrestraints, the reference wasfleeting. Any error was harmless, and appellant’s claim should be rejected. 135 XVI. ANY ERRORIN FAILING TO DEFINE REASONABLE DOUBT AT THE PENALTY PHASEORIN FAILING TO INSTRUCT THE JURY ON HOW TO CONSIDER PENALTY PHASE EVIDENCE WAS HARMLESS Appellant claims the trial court’s penalty phase instructions failed to provide appropriate guidance to the jury, and that the error was structural, requiring reversal. (AOB 132-139.) Respondent submits any possible error was notstructural in nature, and was clearly harmless. In the penalty phase,the trial court instructed the jury on the applicable law governing the penalty phaseand instructed the jury to “disregardall of the instructions given to you in other phasesofthistrial.” (RT 2883.) Evidence of oneprior criminalact, battery on a peace officer, was introducedatthe penalty phase. With respectto this act, the jury was instructedthat it mustbe satisfied beyond a reasonable doubt that appellant had committed the act before the evidence could be considered as an aggravating circumstance. (RT 2886.) However,thetrial court did not providea definition ofreasonable doubtatthe penalty phase. Appellant first claims that the trial court erred in failing to define reasonable doubt at the penalty phase. Heasserts that because thetrial court instructedthejury to disregardall guilt phase instructions,the jury wasleft with no definition of reasonable doubt. (AOB 132-134.) In People v. Holt, supra, 15 Cal.4th at p. 685, this Court addressed a similar argument and found any error harmless. This Court explained: Any possible error arising from the court’s failure to redefine reasonable doubt was harmless. Having beencorrectly instructed at the guilt phase on the meaning ofreasonable doubt, the jury would not be confused oruncertain regarding the term whenresolvinga factual issue to which that standard applied at the penalty phase. We note that the 136 jury did not request a further explanation of the reasonable doubt standard, as it surely would have done had it been confused asto the meaning of reasonable doubt. (Ibid.) Likewise, in the instantcase, the jury did not request an explanation of reasonable doubt, signifying that there was no confusion about the meaning of the term. Furthermore, there was only onealleged prior criminalact involving violence or threatened violence,i.e., the battery upon a correctionalofficer. In defense counsel’s penalty phase argument,he essentially concededthetruth of this allegation, suggesting that this sole, relatively minor incident in a two-year period of incarceration should be construed as a mitigating factor. (See RT 2877.) Accordingly, as in Holt, any possible error was harmless. Appellant also contendsthatthetrial court should haveinstructed the jury that the guilt phaseinstructions concerning the consideration of evidence, i.e., CALJIC Nos. 2.20 [Credibility Of Witnesses], 2.70 [Confessions And Admissions Defined], and 2.71 [Admissions Defined], werestill relevant and continuedto apply in the penalty phase. This Court hasheld that the failure to reinstruct on applicable evidentiary principles after instructing the jury pursuant to CALJIC No. 8.84.1 in the penalty phase is subject to harmlesserror review. (People v. Moon (2005) 32 Cal.Rptr.3d 894, 921; People v. Carter (2003) 30 Cal.4th 1166, 1221.) Therelevant inquiry is whetherit is likely that the omitted instructions affected the jury’s evaluation of the evidence. (People v. Moon, supra, 32 Cal.Rptr.3d at p. 922.) In Moon, this Court concludedthat, “the penalty phase evidence wasentirely straightforward, andthe trial court’s failure to reinstructthe jury with any applicable guilt phase instructions was harmless under any standard.” (/bid.) Similarly,in the instant case the evidence in the penalty phase was very straightforward. The prosecution called total offive witnessesin the penalty 137 phase, and the defense called no witnesses. The prosecution’s witnesses included two sheriff's deputies whotestified about appellant’s battery on a correctionalofficerat the jail, as well as three of the victim’s family members who provided victim impact testimony. Defense counsel engaged in very limited cross-examination ofthe twosheriff's deputies. The cross-examination was apparently designed to establish that such skirmishes were not unusual in a custodial setting, and that correctional officers are trained to deal with such circumstances. In closing argument, defense counsel did not dispute that the jail incident occurred but rather attempted to downplay its significance by suggesting that only one minor incidentin two years ofincarceration should be consideredas a mitigating circumstance. (RT 2877.) Defense counseldid not cross-examine any of the victim’s family members, nor did he challenge the veracity of their testimony in closing argument. In light of the complete absence of any conflicts in the penalty phase evidence, any possible error in failing to reinstruct on relevant evidentiary principles was harmless under any standard. (See People v. Moon, supra, 32 Cal.Rptr.3d at pp. 921-922.) XVII. INTERCASE PROPORTIONALITY REVIEW IS NOT CONSTITUTIONALLY REQUIRED Appellant claims that California’s failure to conduct intercase proportionality review of death sentencesviolates his Eighth and Fourteenth Amendmentrights to be protected from the arbitrary and capricious imposition of capital punishment. (AOB 140-143.) This Court has previously rejectedthe claim that such review is required. (See People v. Snow, supra, 30 Cal.4th at pp. 126-127; People v. Kipp (2001) 26 Cal.4th 1100, 1139; People v. Lucero (2000) 23 Cal.4th 692, 741.) Accordingly, appellant’s claim should likewise be rejected. 138 XVIII. CALIFORNIA’S DEATH PENALTY STATUTEIS NOT UNCONSTITUTIONAL Appellantraises a variety of constitutional challenges to the California death penalty statute and instructions, all of which have been previously rejected by this Court. (AOB 144-171.) Because appellant offers no compelling reason for reconsideration, his claims shouldlikewisebe rejected. Appellant claims that the California death penalty statute unconstitutionally fails to define the burden ofproofon whetheran aggravating circumstance exists, whether the aggravating factors outweigh the mitigating factors, and whether death is the appropriate penalty. (AOB 144-157.) This claim has been previouslyrejected by this Court. (See People v. Maury (2003) 30 Cal.4th 342, 440.) So has appellant’s claim urging that a proof-beyond-a- reasonable-doubt standard is required for finding the existence of an aggravating circumstance (see People v. Snow, supra, 30 Cal.4th at p.126), that aggravating circumstances outweigh mitigating ones(ibid.), and that deathis the appropriate punishment(see People v. Box (2000) 23 Cal.4th 1153, 1216; People v. Carpenter (1997) 15 Cal.4th 312, 417-418.) Insofar as appellant contendsthat the jury should have been instructed on somestandardofproofto guide its decisions on whether to impose the death penalty (AOB 163-166), this claim has beenrejectedin prior decisions ofthis Court, and should be rejected here. (People v. Box, supra, 23 Cal.4th at p. 1216; People v. Carpenter, supra, 15 Cal.4th at pp. 417-418.) Insofar as appellant contendsthat the United States Supreme Court’s decisions in Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely), Ring v. Arizona (2002) 536 U.S. 584 [122 S.Ct. 2428, 153 L.Ed.2d 556] (Ring) and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 148 L.Ed.2d 435] (Apprendi) compel a different conclusion (see AOB 151- 139 157), this Court has squarely rejected this argument. (See People v. Ward (2005) 36 Cal.4th 186, 221; People v. Morrison (2004) 34 Cal.4th 698, 730- 731.) Finally, appellant arguesthat the penalty phase instructions violated his constitutional rights because they did not require the jury to unanimously agree as to the aggravating factors. (AOB 166-169.) However, this Court has repeatedly held that juror unanimity is not required for the aggravating factors. (People v. Panah (2005) 35 Cal.4th 395, 499; People v. Horning (2004) 34 Cal.4th 871, 913; People v. Brown (2004) 33 Cal.4th 382, 402.) Recent decisions by the United States Supreme Court in Ring and Blakely have not changed this conclusion. (See People v. Stitely (2005) 35 Cal.4th 514, 573; People v. Panah, supra, 35 Cal.4th at p. 499; People v. Morrison, supra, 34 Cal.4th at p. 730; People v. Griffin (2004) 33 Cal.4th 536, 595; People v. Brown, supra, 33 Cal.4th at p. 402; see also People v. Cox (2003) 30 Cal.4th 916, 972.) Moreover, the failure to require unanimous agreement on the ageravating factors does notlead to an unreliable sentencing determinationthat violates the Eighth Amendment. (See People v. Jackson, supra, 13 Cal.4th at p. 1246; People v. Raley, supra, 2 Cal.4th 870, 910.) Thus, appellant’s claim mustbe rejected. 140 XIX. THE TRIAL COURT PROPERLY INSTRUCTED THE JURY ON ITS SENTENCING DISCRETION PURSUANT TO CALJIC NO. 8.88 Appellant contends the trial court’s use of CALJIC No. 8.88 in instructing the jury at the penalty phase resulted in numerouserrors due to alleged flawsin that instruction.” (AOB 172-183.) Because similar challenges to this instruction have been repeatedly rejected by this Court, appellant’s contention likewise should be rejected. Appellant claimsthe instruction is impermissibly vaguein thatit states that to return a verdict of death, each juror must be persuaded the aggravating circumstances are “so substantial” in comparison with the mitigating circumstancesthat it warrants death rather than life without the possibility of parole. Appellant contendsthe instruction’s use of the phrase “so substantial” is impermissibly vague, directionless, and impossible to quantify. (AOB 173- 176.) This contention has been previously rejected by this Court and appellant offers no persuasive reason for reconsiderationofthe prior rulings. (See People v Carter, supra, 30 Cal.4th at p. 1226; People v. Boyette, supra, 29 Cal.4th at p. 465.) Appellant further argues that the instruction told the jurors they could return a judgmentofdeath ifpersuaded the aggravating circumstances were so substantial in comparison to the mitigating circumstancesthat it “warrants” death, and that the use of the word “warrants”did not inform them they could return a verdict of death only if they found that penalty was appropriate, not merely authorized. (AOB 176-178.) This claim has been previously rejected (see People v. Boyette, supra, 29 Cal.4th at p. 465), and should berejected in 38. The text of CALJIC No.8.88, as read bythetrial court, is set forth in its entirety at pages 2889 through 2891 of the Reporter’s Transcript. (See also CT 1103-1104.) 141 this case, especially sincethetrial court below expressly informed the jury that “(ijn weighing the various circumstances you determine under the relevant evidence which penalty isjustified and appropriate by considering thetotality of the aggravating circumstances with the totality of the mitigating circumstances.” (RT 2890, emphasis added.) Appellant also complainsthe instruction failed to inform the jurors that if they determined the mitigating evidence outweighed the aggravating evidence,they were requiredto return a sentenceoflife without parole. (AOB 178-182.) No such instruction was required. (People v. Moon (2005) 2005 WL 1981450.) Finally, appellant contendsthe instruction wasdefective becauseit failed to inform the jury that, under California law,neither party in a capital case bears the burden of persuading the jury of the appropriateness or inappropriateness of the death penalty. Appellant argues that the jury must be clearly informed of the applicablestandards,so thatit will not improperlyassign the burden to the defense. (AOB 182-183.) This Court hasheld that except for proof of othercrimes,a trial court should notinstructat all on the burden ofproofatthe penalty phase, because the sentencing decision is inherently a moral and normative one rather than a factual one, and is thus not susceptible to such quantification. (People v. Box, supra, 23 Cal.4th at p. 1216; People v. Carpenter (1997) 15 Cal.4th 312, 417-418.) Insofar as appellant cites People v. Hayes (1990) 52 Cal.3d 577, 643, for the proposition that the jury must be given an instruction on the lack of burdenofproofat the penalty phase (AOB 182-183), the case doesnot hold that such aninstruction must be given. Based on the foregoing,appellant’s challenge to CALJIC 8.88 shouldberejected. 142 XX. THE TRIAL COURT PROPERLY INSTRUCTED THE JURY ON THE AGGRAVATING AND MITIGATING FACTORSIN PENAL CODE SECTION 190.3 Appellant contends the instructions regarding the mitigating and aggravating factors in section 190.3 and the application of these sentencing factors rendered his death sentence unconstitutional. (AOB 184-201.) The claims raised by appellant have been repeatedly rejected by this Court and should be rejected here. ‘Appellantfirst argues that instructing the jury on the sentencingfactors of section 190.3, subdivision (a), which directs the jury to consider as aggravation the “circumstances of the crime” resulted in the arbitrary and capricious imposition of the death penalty, in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. (AOB 185-186.) The United States Supreme Court hasheld that instructing a jury to considerthe circumstancesofa crime undersection 190.3, subdivision (a), does not violate the Eighth Amendment. (Tuilaepa v. California (1994) 512 US. 967, 976 [114 S.Ct. 2630, 129 L.Ed.2d 750].) Furthermore, this Court has repeatedly rejected the argument that allowing the jury to consider the circumstances ofthe crime as a factor in aggravationresults in arbitrary and capricious application of the death penalty. (See People v. Schmeck (2005) 2005 WL 2036176; People v. Kennedy (2005) 36 Cal.4th 595, 641; Peoplev. Smith, supra, 35 Cal.4th at p. 373; People v. Brown (2004) 33 Cal.4th 382, 401.) Accordingly, appellant’s claim should be rejected. Appellant next argues that instructing the jury that it could consider as an aggravating factor unadjudicated criminal activity involving force or violence under Penal Code section 190.3, subdivision (b), violated his federal constitutional rights to due process, equal protection, and a reliable penalty determination, and thatto the extent the evidence was permissible, the failure 143 to instruct on the requirementofjury unanimity violated appellant’s rights to a jury trial and to a reliable penalty determination. (AOB 187-194.) This claim has been rejected in prior decisionsofthis Court, and should be rejected here. (People v. Turner (2004) 34 Cal.4th 406, 439; People v. Brown, supra, 33 Cal.4th at p. 401.) Appellant also argues that the failure to delete inapplicable statutory sentencing factors in CALJIC No. 8.85 introduced confusion, capriciousness, and unreliability in the capital decision-making process, in violation of his rights underthe Sixth, Eighth, and Fourteenth Amendments. (AOB 195-196.) This Court haspreviously rejected this argument. (People v. Dickey (2005) 35 Cal.4th 884, 928; People v. Box (2000) 23 Cal.4th 1153, 1217 Appellant offers no compelling reason for this Court to reconsiderits previous decisions onthis issue. Accordingly, appellant’s contention should be rejected. Appellant claims that the use of “restrictive” adjectives such as ~ “extreme” (factors (d) and (g)) and “substantial” (factor (g)) in the list of mitigating factors in section 190.3 acted as a barrier to the consideration of mitigating evidence, in violation of the Sixth, Eighth, and Fourteenth Amendments. (AOB 196.) This claim has been previously rejected by this Court and should be rejected here. (People v. Morrison, supra, 34 Cal.4th at pp. 729-730; People v. Lewis, supra, 26 Cal.4th at p. 395.) Appellant further argues that the failure to require the jury to base a death sentence on written findings regarding the aggravating factors violated his due process right to meaningful appellate review and his right to equal protection of the law underthe Eighth and Fourteenth Amendments. (AOB 197-199.) This Court has previously held that written findings on aggravating factors used as a basis for imposing the death penalty are not constitutionally required. (People v. Kraft (2000) 23 Cal.4th 978, 1078.) Accordingly, appellant’s claim should berejected. 144 Lastly, appellant arguesthat California’s death penalty statute violates the constitutional guarantee of equal protection becauseit affords significantly fewer procedural protections to defendants facing death sentences than to those charged with noncapital crimes. (AOB 199-201.) This claim has been previously rejected and should berejected here. (People v. Ramos (1997) 15 Cal.4th 1133, 1182.) XXI. APPELLANT’S DEATH SENTENCE DOES NOT VIOLATE INTERNATIONAL LAW Appellant claims California’s death penalty procedure violates the International CovenantofCivil and Political Rights (“ICCPR”), an international treaty to which the United States is a party. (AOB 202-216.) Appellantfails to demonstratethat he raised this specific constitutional claim in the trial court; respondenttherefore submits that his claim is not cognizable on appeal. (See People v. Burgener, supra, 29 Cal.4th 833, 869 [“It is elementary that defendant waived these claims by failing to articulate an objection on federal constitutional grounds below”]; People v. Catlin, supra, 26 Cal.4th at p. 122; People v. Clark (1993) 5 Cal.4th 950, 988, fn. 13.) Moreover, assuming for argument’s sake his claim is reviewable, this Court has rejected the notion that California’s death penalty statute somehow violates international law. Appellant has failed to establish the basic prerequisite: that his trial involved any violations of state and/or federal law. (See People v. Bolden (2002) 29 Cal.4th $15, 567; People v. Hillhouse (2002) 27 Cal.4th 469, 511; People v. Jenkins (2000) 22 Cal.4th 900, 1055.) Morever, he fails to demonstrate standing to invoke the jurisdiction of international law in this proceeding because the principles of international law apply to disputes between sovereign governments, not individuals. (Hanoch Tel-Oren v. Libyan 145 "Arab Republic (D.C. 1981) 517 F.Supp. 542, 545-547.) Appellant does not have standingto raise claims that his conviction and sentence resulted from violations of international treaties. Article VI, section 2, of the United States Constitution provides,in pertinentpart, that the Constitution, the laws of the United States, andall treaties made underthe authority ofthe United States are | the supreme law ofthe land. Treaties are contracts among independentnations. (United States v. Zabaneh(5th Cir. 1988) 837 F.2d 1249, 1261.) Undergeneral principles of international law, individuals have no standing to challenge violation of international treaties in absence of a protest by the sovereign involved. (Matta-Ballesteros v. Henman (7th Cir. 1990) 896 F.2d 255, 259, United States ex rel. Lujan v. Gengler (2d Cir. 1975) 510 F.2d 62, 67.) Treaties are designed to protect the sovereigninterests of nations andit is up to the offended nations to determine whether a violation of sovereign interests occurred that requires redress. (Matta-Ballesteros v. Henman, supra, 896 F.2d at p. 259, and casescited therein.) It is only when a treaty is self- executing, that is when it prescribes rules by which private rights may be determined, that it may be relied upon by individuals for the enforcement of such rights. (Dreyfus v. Von Finck (2nd Cir. 1976) 534 F.2d 24, 30.) In orderfor a provision ofa treaty to be self-executing without the aid of implementinglegislation and to havethe force andeffect ofa statute,it must appearthat the framers ofthe treaty intended to prescribea rule that, standing alone, would be enforceable in the courts. (Fujii v. State ofCalifornia (1952) 38 Cal.2d 718, 722.) In determining whethera treaty is self-executing, courts look to the following factors: (1) the language and purpose of the agreement as a whole;(2) the circumstances surrounding its execution; (3) the nature of the obligations imposed by the agreement;(4) the availability and feasibility of alternative enforcement mechanisms; (5) the implications ofpermitting a private right of action; and (6) the capability of the judiciary to resolve the dispute. 146 (Frolova v. Union ofSoviet Socialist Republics (7th Cir. 1985) 761 F.2d 370, 373; American Baptist Churches in the U.S.A. v. Meese (N.D.Cal. 1989) 712 F.Supp. 756, 770.) In this case, appellant fails to cite any persuasive authority that the treaty he relies uponis self-executing. No language in the ICCPR appearsto create rights in private persons. Therefore, appellant is incapable of asserting a personal cause of action under the ICCPR. Finally, as previously decidedby this Court, this claim lacks merit. (See People v. Snow,supra, 30 Cal.4th at p. 127 [International law does not compel the elimination of capital punishment in California.”]; People v. Hillhouse, supra, 27 Cal.4th at p. 511; People v. Jenkins, supra, 22 Cal.4th at pp. 778-779; People v. Ghent (1987) 43 Cal.3d 739, 718-779: see also People v. Ochoa, supra, 26 Cal.4th at p. 462.) In Ghent, this Court held that international authorities similar to those now invokedby appellant do not compelelimination of the death penalty and do not have any effect upon domestic law unless they are either self-executing or implemented by Congress. (People v. Ghent, supra, 43 Cal.3d at p. 779; People v. Hillhouse, supra, 27 Cal4th at p. 511; see People v. Ochoa, supra, 26 Cal.4th at p. 462 [rejecting claim that California’s death penalty law violates international norms].) In sum, appellant waived this claim and has no standing to invoke international law as a basis for challenging his state conviction and judgment of death. Moreover, appellant has failed to state a cause of action under international law for the simple reason his claims of due process violations asserted throughout the appeal are without merit. Further, this Court is not a substitute for international tribunals and, in any event, American federal courts carry the ultimate authority and responsibility for interpreting and applying the American Constitution to constitutional issues raised by federal and state 147 statutory or judicial law. Finally, this Court’s earlier conclusions in Ghent, Hillhouse, Jenkins, Ochoa, and Snow precluderelief. Forall the foregoing reasons, appellant’s challengesto the death penalty, if reviewable, are meritless. (See People v. Price, supra, 1 Cal.4th at p. 490; People v. Pride (1992) 3 Cal.4th 195, 268-269.) XXII. NO REVERSAL IS REQUIRED BASED ON THE CUMULATIVE EFFECT OF ALLEGED ERRORS Appellant contends his conviction and death sentence should be reversed based upon the cumulative effect of alleged errors. (AOB 217-220.) For the reasons stated as to each of the arguments appellant hasraised in this appeal, there were no errors requiring reversal of the guilt or penalty verdicts. 148 CONCLUSION Accordingly, respondent respectfully requests that the judgment of conviction and sentence of death be affirmed. Dated: December15, 2005. TAP/cd LA2001XS0006 50069740.wpd Respectfully submitted, BILL LOCKYER Attorney Generalof the State of California ROBERT R. ANDERSON Chief Assistant Attorney General PAMELA C. HAMANAKA Senior Assistant Attorney General JOHN R. GOREY Deputy Attorney General THERESA A. PATTERSON Deputy Attorney General Attorneys for Respondent 149 CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’SBRIEFuses a 13 point Times New Romanfont and contains 43760 words. Dated: December 15, 2005. Respectfully submitted, BILL LOCKYER Attorney Generalof the State of California f) oa Arete (DPAGor THERESA A. PATTERSON Deputy Attorney General Attorneys for Respondent 50069740.wpd DECLARATION OF SERVICE Case Name: People v. Juan Manuel Lopez (CAPITAL CASE) No.: $073597 I declare: I am employed in the Office of the Attorney General, which 1s the office of a member of the California State Bar, at which member’s direction this service is made. I am 18 years ofage or older and not a party to this matter; my business address is 300 South Spring Street, Suite 1702, Los Angeles, CA 90013. I am familiar with the businesspractice at the Office ofthe 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 December16, 2005, I served the attached RESPONDENT?’SBRIEFbyplacing a true copy thereofenclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail system of the Office of the Attorney General, addressed as follows: Michael J. Hersek (TWO COPIES) California Appellate Project - SFO State Public Defender Attention: Michael Millman Arnold Erickson 101 Second Street, Suite 600 Deputy State Public Defender San Francisco, CA 94105-3647 State Public Defender’s Office 221 Main Street, 10th Floor San Francisco, CA 94105 Los Angeles County Superior Court John Nantroup Van Nuys Courthouse West Deputy District Attorney NorthwestDistrict Los Angeles County 14400 Erwin St. Mall District Attorney’s Office Van Nuys, CA 91401-2705 Clara Shortridge Foltz Building FOR DELIVERYTO: 210 West Temple Street HON. MEREDITH C. TAYLOR,Judge Los Angeles, CA 90012-3210 On December 16, 2005, I caused fifteen (15) copies of the RESPONDENT’SBRIEFinthis case to be delivered to the California Supreme Court at Ronald Reagan Bldg., 300 S. Spring Street, Fl. 2, Los Angeles, CA 90013-1233 by Personal Delivery. I declare under penalty ofperjury underthe laws ofthe State of California the foregoing is true and correct and that this declaration was executed on December 16, 2005, at Los Angeles, California. C. Damiani AVibgotet Declarant Signature TAP/cd LA2001XS0006 50069402.wpd
