PEOPLE v. DUENAS (ENRIQUE P.)

Respondent's Brief

Cal.March 30, 2010

OUPREME COURT COPY Jn the Supreme Court of the State of Calitarnia THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, V. ENRIQUE PARRA DUENAS, Defendant and Appellant. CAPITAL CASE Case No. S077033 SUPREME PilRae? T COU than R Bem Fld! MAR 3 0 2010 Frederick kK. Onivich Clark oeRenan Pete,Daputy Los Angeles County Superior Court Case No. BA109664 The Honorable Dewey LawesFalcone, Judge RESPONDENT’S BRIEF EDMUNDG. BROWN JR. Attorney General of California DANER. GILLETTE Chief Assistant Attorney General PAMELA C, HAMANAKA Senior Assistant Attorney General KEITH H. BORJON Supervising Deputy Attorney General TAYLOR NGUYEN Deputy Attorney General State Bar No. 213785 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 620-6495 Fax: (213) 897-6496 Email: DocketingLAAWT@doj.ca.gov Attorneysfor Respondent DAT PENALTY TABLE OF CONTENTS Page TntrOductiOn .......ceeceesceeeecceeseeceneeeceeseeeenaesseeeeeneesseetsaeeesaeenaeaennseeenseeneeeeneeens l Statement of the Case... ceccececesssceseeeeseescreceneetteeeeneeseeesssseeesneasttsenserenas 1 Statement Of Facts... eeeccecseeececeeseeeaeeceseceaneeeensesseeesatessesessueeseneeecseeeenaeens 2 A. Prosecution Evidence... seceesessnereeseeeeeeneeneeerseees 2 B. Defense Evidence .........ccccccccceessceseeeesnceteeeeesenseesaeeesas 20 C. Victim Impact Evidence... eeeeeneeeneeeeeeeeens 21 D Evidence In Mitigation ..........cceccseesseeeeeeeeenrereeeeeees 26 ATBUMEMN0...eee eeeeeeressreeeeteeenereenaes sssutuesecesessavesssussucsessesessesesueseeeseeneseenees 28 I. The Trial Court Properly Excused Three Prospective Jurors for Cause ....cccccccccccsssssscsssscsesesessssessesssesscseessseneseenseees 28 A. The Applicable Law ..0.... ce ieeeceseeesecreseeeeeeeneeenseeeens 29 B. The Trial Court Did Not Err When It Excused for Cause Three Jurors Who Expressed Reservations about Their Ability to Impose the Death Penalty in the Appropriate Situation.............. 31 Il. The Computer Animation Was Properly Admitted as Demonstrative Evidence ...........cccecccesscceetceeeneeeesneceenereneeerene 46 A. Procedural Background............ececseseeeseeeeeteeeeeeeeees 46 B. The Computer Animation Was Properly Admitted to Assist the Jury with Expert TeStiMOny ......ccccccccssecesstececsseceeseseeessaseeeesseesensteeeeenas 51 C. Any Alleged Error Was Harmless..............:::cceceee 63 IW. CALJIC No. 8.85 Did Not Violate Appellant’s Eighth and Fourteenth AmendmentRights to a Reliable Sentencing Determination.............ccccecesseecssseceestseeeesseeeeeens 65 IV. CALJIC No. 8.88 As Given Was Valid and Properly Defined the Scope of the Jury’s Sentencing Discretion and the Nature of Its Deliberative Process ............cccceeee 68 TABLE OF CONTENTS (continued) Page CALJIC No. 8.88 Properly Informed the Jury of Its Responsibility in Determining Whether to Impose Death or a Sentence of Life Without the Possibility of Parole ..........cccecceceesseeeseeteeneeeneeeeeseenaes 69 CALJIC No. 8.88 Properly Imparted to the Jury That It Could Return a Sentence of Life Without the Possibility of Parole Even in the Absence of Mitigating Factors ........ cc eeeeeeeeeees 70 CALJIC No, 8.88 Is Not Unconstitutionally Vague in Instructing the Jury That It Must Be Persuaded That Aggravating Circumstances Must Be “So Substantial” in Comparison to Mitigating Factors That It Can Impose Death Instead of Life Without the Possibility of Parole..... 71 CALJIC No. 8.88 Does Not Violate the Eighth and Fourteenth Amendments by Useofthe Term “Warrants” Rather Than “Appropriate’’.......... 72 Burden of Proof ..c.....cccccececccseeesececeesevcceeuscesecuevecesevens 73 1, The Failure to Have a Penalty Phase Instruction on the Burden of Proof Does Not Violate the United States COMStitutiOn ...c.ccccccccccessseseessseeceeeeseeeeeceeseaees 73 2. The Trial Court Was Not Required to Instruct The Jury on Burden of PELFSUASION.........ccceceeeeceeeeeeceeenceeeteesnneeteteretaes 75 3-5 The Trial Court was not Requiredto Instruct the Jury on the Burden of Proof on Mitigating Circumstances or That There was no Unanimity Requirement Regarding the Mitigating Circumstances....................00e- 75 Jury Unanimity on Aggravating Factors in Not Constitutionally Compelled .........ee eeeeeeeeene renee 77 ll TABLE OF CONTENTS (continued) Page G. Written Findings Regarding Aggravating Factors Is Not Required ............:cesceeesseeeerseeeeeeeeesenens 77 H. The Trial Court Was Not Requiredto Instruct the Jury on Presumption of Life Without . Possibility of Parole....... dee eesceceaeeenaeeteneeeeneeesieetnetens 78 V. The Trial Court Properly Instructed the Jury on the Meaningof Life without the Possibility of Parole............... 79 VI. Because Appellant Has Not Demonstrated Any Errors, There Are No Errors Which Taken Cumulatively Require Reversal of Appellant’s Conviction and Death SENTENCE oo... eee ceccccsteeeseeeeeseneeerenteeerecereresaseceeseneessennenenseerens 80 VII. Based on the NumerousDecisions of This Court Rejecting Constitutional Challenges to California’s Capital Sentencing Statute, This Court Should Reject Appellant’s Challenges As Well... ccccccesseceseeneeseeeeees 81 VIII. Appellant’s Death Sentence Does Not Violate International Law ........escceeeeeeseeesetersseesessesesseeseesesseeenneeegs 82 - Conclusion ......cccccecssssceseesseccesseeeecseneeeeceesenneseeeseeeuneeeseetenseaeesesteesnenesenags 85 lil TABLE OF AUTHORITIES CASES Apprendi v. New Jersey (2000) 530 U.S. 466 Page [120 S.Ct. 2348, 147 L.Ed.2d 435) ooreseeseesterseeteenes 73, 76 Atkins v. Virginia (2002) 536 U.S. 304 [122 S.Ct. 2242, 153 L.Ed.2d 335] oweeeeeeeeeeeeeesae Blakely v. Washington (2004) 542 U.S. 296 ecneeeaeenaee 83 [124 S.Ct. 2531, 159 L.Ed.2d 403] ooeeeeeeseeeeseeeseeeereneees 73, 76 Bledsoe v. Salt River Valley Water Users' Assoc. (Ariz. App. 1994) 179 Ariz. 469 ooocecccccccccccccccestestesesesseseens Blystone v. Pennsylvania (1990) 494 U.S. 299 [110 S.Ct. 1078, 108 L.Ed.2d 255) occteeters Boyde v. California (1990) 494 U.S. 370 eveeesnetens 54 eveeenneeens 67 [110 S.Ct. 1190, 108 L.Ed.2d 316] oo.eeeeter eeereeeeetes 67, 72 Chapman y. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 LBd.2d 705] sssssssssssssssessssssssseeeseseseneen Clark v. Cantrell (S.C. 2000) 339 S.C. 369 oeeceeesseeseesesseeeteenterneteeeaes People v. Cauley (Colo. App. 2001) 32 P.3d 602 ooo... cece eesecsseseeeserteseseeerens Cleveland v. Bryant (Ga. App. 1999) 512 S.E.2d 360 vcccccscssessssssseessessseesssseeeeeee Dunkle v. State eseeeneeesees 64 evteesatenaee 54 beeeentteerens 54 eveeetnneees 54 (Okla. Crim. App. 2006) 139 P.3d 228 versesssssssesssesssessenees 59, 60, 62 iv Hanoch Tel Oren v. Libyan Arab Republic (D.D.C. 1981) 517 F.Supp. 542 oc eeeececcsceeteeseesestesteseesteteeeeeeaees 81 Harris v. State (Okla. Crim. App. 2000) 13 P.3d 489 ooocccseeeseecseseeteeees 54,55 Hinkle v. City ofClarksburg (4th Cir, 1996) 81 F.3d 416... ccccsecseseesseeseesseeereeeeseesseseensenes 53 Jones v. United States (1999) 526 U.S. 277 [119 S.Ct. 1215, 143 L-Ed.2d 311] ooeccceessseceessseeeesteeeenees 73 Kelly v. South Carolina (2002) 534 U.S. 246 | [122 S.Ct. 726, 151 L.Ed.2d 670] ceeceeceeeetesseeceesetetsecneesetsetesees 78 People v, Abilez (2007) 41 Cal.4th 472 oo. cecccccccessessesssseesecseessessecseessesesesseeees beceeeees 44 People v. Alvarez (1996) 14 Cal.4th 155ooccccssccsecssessecenseseecssessseessseessessseseseseaeenes 29 People v. Anderson (2001) 25 Cal.4th 543 oo. ccescccccseseseseceessectrecsecseescesseessecereerennenes 65 People v. Arias (1996) 13 Cal.4th 92 o.oo ecccccceeesesseeseesseeeeees 67, 69, 70, 73, 77, 78 People v. Avila - (2006) 38 Cal.4th 491occccccecsesccnseeseesesseecessscsseessessreteesseeneeses 30 People v. Bacigalupo (1991) 1 Cal.4th 103 occcccccccccsecssesecssessessesssesseeseessesesneseseeeeens 76 People v. Barnett (1998) 17 Cal.4th 104400. eccceeceeseeseeseesesseeeseeseeneess 35, 36, 37, 38 People v. Blair (2005) 36 Cal.4th 686.00... ecccecceeneeeereteeseeeetteesseneees 66, 74, 76, 77 People v. Box (2000) 23 Cal.4th 1153 occ cecccccceseeeceeeseeseseeesecsececsecsesessessesseeaees 79 People v. Boyer (2006) 38 Cal.4th 412.cececece reneneneceserecseeserenesnitnniiies 82 People v. Boyette (2002) 29 Cal.4th 381eeeeeneereneesreeeeceeetieteeeeeseeeseensees 72, 80 People v. Bradford (1997) 15 Cal.4th 1229occeecesecneceeeessceeneeneeesessesennesieersaes 29, 34 People v. Breaux (1991) 1 Cal.4th 281ceeeseeseteneseeneereseeseensetenteensenseeeeenes 71, 75 People v. Breverman (1998) 19 Cal.4th 142occecccsecneenneeeneseeesneeenesenresseeseneesaneats 62 People v. Brown (2004) 33 Cal.4th 382 ooeecceccsseeeneeseenreneesseestetsersaeeeates 80, 81, 82 People v. Burgener (2003) 29 Cal.4th 833 oooceceree cseneeeetsesesseseseesesseessesseseeseseenes 80 People v. Cain (1995) 10 Cal.4th Loeecccceseeeeteseeeeneeseeeneeeneeeeenneessdeeeteeeeeens 38 People v. Carpenter . (1997) 15 Cal.4th 312occeset rsetsererereneeseees 34, 65, 73, 74 People v. Carter (2003) 30 Cal.4th 1166.0... cccescesssscessecsceceeessneetseressseesneeeseneeeeaas 70 People v. Catlin (2001) 26 Cal4th 81 ooeeccccececcceceeseceeeeersreseeesrssareseesiesenarensaeeas 79 People v. Cauley (Colo. App. 2001) 32 P.3d 602 oo... ccccsseececeeeeerececeterteseaneeenaeens 53 People v. Clark (1992) 3 Cal.4th 41 occecscsessecneeseeseeessessressrevseeeeeeesntecaeeseareeas 66 People v. Coffman & Marlow (2004) 34 Cal.4th 1cccccececcccsecsseceeeeseeeseeeeesseeeseeseeceaeesseesneteseaeens 71 People v. Cole (2004) 33 Cal.4th 1158occcccceseceesseeseeeceersrestrevsrteseeeenseenteseneeens 62 People v. Combs (2004) 34 Cal.4th 821 ooo. ccecncecsceceeeeeceeeseceeesseeessaseceueeeeenanetaas 77 v1 People v. Cook (2006) 39 Cal.4th 566...sieeeeeceeeeseecseeseceeseseseeuteeeneneaeientess 82 People v. Cooper (1991) 53 Cal.3d 771 oececccscecseserecenseneeeeeeeeaeceseceesaeeneesnterenneeaees 79 People v. Crew (2003) 31 Cal.4th 822 00. ccccccsceesneceseesseceeeessescseseseneteneseseesseens 72 People v. Crittenden (1994) 9 Cal.4th 83 ooo ccceecccsseseenrerseseeeteseeeneeeareeseees 29, 30, 34, 35 People v. Cunningham (2001) 25 Cal.4th 926.00. ecccsccsecreeesecescenessessesneecsessesneesteeseees 29,79 People v. Davenport (1995) 11 Cal4th L171ceeeeeseecnecneesseesseneesesersneteaesererens 66, 71 People v. Dickey (2005) 35 Cal.4th 884.0eeeeeeeneeneees eveeaeeseeesens 66, 80, 81, 82 People v. Duncan (1991) 53 Cal.3d 955 oie ccccccccsecneccenseeseecneecsecsereesseceeesseseeseeseeens 69 People v. Dunkle (2005) 36 Cal.4th 861 0... ccccecccceccceseeecseecseseeeseseeeeseeneessteeeess 77, 78 People v. Farnam (2002) 28 Cal.4th 107cccsceseecesceeceseestereesseenevereaeens 64, 65, 66 People v. Frye (1998) 18 Cal4th 894oecceceeeseensesseeneeneeseeeeneens 69, 71, 72, 80 People v. Gardon (1990) 50 Cal.3d 1223 oo ieccecceseeseceseceseeneeereeseceessessesaeesareeseaeesees 78 People v. Ghent (1987).43 Cal.3d 739 oo. cccccccccccseessecessecsseessessesesessesceesssessessnessees 81 People v. Gionis (1995) 9 Cal.4th 1196... cccececsesseestecseesseeseeseeseessessecsseensssseeeseaes 64 People v. Griffin (2004) 33 Cal.4th 536.0... cccccscssccsecsseessesseesesseeessssesesseeeeeeseens 76,77 vil People v. Hamilton (2009) 45 Cal4th 863... ccccccccccscsscsscsssseesesscseesesseesecsesesceecssssecsesssees 34 People v. Hart (1999) 20 Cal.4th 546... ccccscesesseesssseeeesessseesecscsecseseesesesseeeeesees 62 People v. Hayes (1990) 52 Cal.3d 577 oo. ececcseeeeeessesesesensescsesesesesesesesseneaeessesees 74, 76 People v. Hill (1992) 3 Cal.4th 959iccccccccscsscssecssseesecsssecsecsessecscsecsecseeseesevssess 29 People v. Hill (1998) 17 Cal.4th 800... ccccsecesecseteesseseteeteeeesensvevieeesnetnenseeeaes 79 People v. Hillhouse (2002) 27 Cal.4th 469 ooo. cccccctscsecsecssseesecseeesestseesesseeeaees 66, 81, 82 People v. Hines (1997) 15 Cal.4th 997oicccccsseeecesesceeeeesstessecsesseessessecsenseseeatiees 28 People v. Holt (1997) 15 Cal.4th 619.ccccceseeseeseseessescsessessecseeseeecsesseeeeens 28, 30 People v. Hood (1997) 53 Cal.App.4th 965... cccccccscscssssscsensensssseeestees 45, 46, 50, 51 People v. Hovarter (2008) 44 Cal.4th 983 ooiceceseseecsteeseeeseseeteeseseeersesesessesaeseses 70, 73 People v. Howard (1988) 44 Cal.3d 375 oo. ceccescssesssseeseescsecsesecseesecseesseseeacsseensenevas 30, 32 People v. Jenkins (2000) 22 Cal.4th 900... ceeccescseeesssseseeeessseseeeessseescecseeressearstens 30, 81 People v. Kelly . (1976) 17 Cal.3d 24oeeceesseeeeesesteeecsseeeseeesteessensssecsessenaeees 51, 52 People v. Kipp (1998) 18 Cal.4th 349oocccccccsesssssecsscsecsetcsecsecesesesssusesscssesstets 69 People v. Koontz (2002) 27 Cal.4th 104]cccccccccccecccsscssescsessessscscsssesecsesstsesnevaesas 79 vill People v. Lewis (2001) 26 Cal.4th 334.ceccceceeeerecseeeeeseesneesneessnsecnestcesneeneereaes 80 People v, Lewis (2008) 43 Cal.4th 415occccccccsscnecsnreerecereeneeeneetsaesenesesseeseeeseesees 44 People v. Lindberg (2008) 45 Cal.4th Looeeecnecnreenersseseereeseesssseeseeseeeeereeraes 69, 70 People v. Marks (2003) 31 Cal.4th 197cenceeeeereciseeresecsresseeseesseneeseeneens 65 People v. Maury (2003) 30 Cal4th 342oeciceecneeeneeeeseesecneeseesseeseneeeesens 77, 80 People v. Mayfield (1997) 14 Cal.4th 668oeeeceseesecceeceeeeareseeesseeseeesneesseeees 29, 34, 66 People v. Medina (1995) 1] Cal.4th 694oreceeeeneeneeenre rene rrietietieesieeneessinens 69 People v. Mincey (1992) 2 Cal.4th 408..........daaeuseeesaeeeaeeesacecsseseaeeceneeseaeeeesseeesiesnnneetenes 29 People v. Moon (2005) 37 Cal.4th Locceeceesceeecesseeeeteeseeeneeessesens 66, 67, 69, 70, 73 People v. Morrison (2004) 34 Cal4th 698 o.oo. ececcceeeecseeceeeeeneeeeneeesneecenneeeenetsareseneees 75 People v. Musselwhite (1998) 17 Cal.4th 1216...ceeeecereereeeseeeeeceesneseseeeresnesseseeteneaes 78 People v. Ochoa (2001) 26 Cal.4th 398 oo. cccesceccecsescenreseeeseeseneeseeeseesaeessessaeesseens 79 People v. Osband (1996) 13 Cal.4th 622 oo... cccccceeseseceeeecseeeeeeceeeeteeeseseneeeeeseneeeeaeess 73 People v. Panah (2005) 35 Cal.4th 395 oo ciecccecccceceecsneeeerecsneeeenesrsneeesneneenneesneeeseatess 75 People v. Ray (1996) 13 Cal.4th 313oieeccecececseeceeceeeseeseseeeeseeeseeeeteneetieeseneeees 69 ix People v. Rodrigues (1994) 8 Cal.4th 1060...cece cccsecsecsecseeseeseessessscseesseseccseseessesaees 71 People v. Roldan (2005) 35 Cal.4th 646.00. ceececescescessessnecseeseesenscsessseseeseesessesseeats 34 People v. Seaton (2001) 26 Cal.4th 598 ooo cceccneseesseeeseeeesesecseessstecteeaeeevseessseesentens 79 People v. Slaughter (2002) 27 Cal4th 1187.00.00.eeeeveeaseeecaeeeeveseaecaeessesaaesaeetenaeseesatees 79 Peoplev. Smith (2005) 35 Cal.4th 334.cccceeeseseeccneesecseseeeceeereaeeteeeseeseees 69, 70, 72 People v. Smithey (1999) 20 Cal.4th 936... ccccccccescesseseescsscsessesecseesessessessecseeessteseeseeees 78 People v. Snow . (2003) 30 Cal.4th 43 oo. cccccsecssccseseescnsecscsessssecsseseeseesesseecsseeeseesasees 77 People v. Stewart (2004) 33 Cal.4th 425 oo icccceccscsesscsesscsesscsecseesscsesseesessessesseeseesteaes 44 People v. Stitely (2005) 35 Cal.4th S14.ccccececsseseesesseeseessceessecenscsseeescersasensens 75 People v. Taylor (2001) 26 Cal.4th 1155icecseneeeeeseesseeeeseesetrenrenseseeers 65, 69, 72 People v. Thompson (1988) 45 Cal.3d 86... ceccsesesseecneseeceeesesessesessecsessesseesessesneentens 78 People v. Turner ; (1994) 8 Cal.4th 137occceccsceseesecsessessscecsesseeseesseeeessesssesseeeeeees 66 People v. Vieira (2005) 35 Cal.4th 264occ ccccccccccsscsessesscseesssscsecssesecseseecssesssasenesateees 75 People v. Ward (2005) 36 Cal.4th 186......cccccccccscsssssessessscsssssescecsesssssscsescssssssesvenevens 73 People v. Watson (1956) 46 Cal.2d 818 o.oo cccccccccccesecseseesscsessssecsessesssearcaessevseseseas 62, 63 People v. Weaver (2001) 26 Cal.4th 876.0... cceccsesseeeeesseeneeeseeessserseseeseeens 66, 69, 72 People v. Welch (1994) 20 Cal4th 70] oo. ecc cccccesecsneeeneeeneeseereseesssssesseesssessesenaeees 75 People v. Wharton (1991) 53 Cal.3d 522cece ceeeeeceeereeeseetsereessressesieseseeesesseseeeeaees 39 People v. Williams . (1997) 16 Cal4th 635 ooo eeecsceeeeceneeeerceserteesesseneeeseeseeeenessaaseeanens 29 People v. Yeoman (2003) 31 Cal.4th 93 ooo.eereesererseeeesenerenieeensesseeeseesneeseeaees 66 People v. Young (2005) 34 Cal4th 1149ooeeeceeeesse creer ceesteeseesessesseeceeseeegs 70 Ring v. Arizona (2002) 536 U.S. 584 [122 S.Ct. 2428, 153 L.Ed.2d 556] oo.eeeeenereteeeesseeneeeenes 73, 76 Simmons v. South Carolina (1994) 512 U.S. 154 [114 S.Ct. 2187, 129 L.Ed.2d 133] eeeeects tees eeeeeeneeneneeeeens 78 Stanford v. Kentucky (1989) 492 U.S. 361 [109 S.Ct. 2969, 106 L.Ed.2d 306] oo.eeetees eeseteeereerseeees 83 State v. Farner (Tenn. 2001) 66 S.W.3d 188 oo.eeeeeeeeneeeee tenes“suuvuvevuseveacauvessess 54 State v. Harvey (La. App. 2 Cir. 1995) 649 S0.2d 783... eceeesenene rere netreesneeeaeens 53 State v. Sayles (Clowa 2003) 662 N.W.2d 1...eeeeeesenteeeerneeteeeeneeneesecetseeenneees 53 Tuilaepa v. California (1994) 512 U.S. 967 [114 S.Ct. 2630, 129 L.Ed.2d 750] oo.eeesereeeeeeneesseneeeesseeees 71 United States v. Duarte Acero (11th Cir. 2000) 208 F.3d 1282escrseeceeeeeetesenneeeeseenenees ee 81 X1 Uttecht v. Brown (2007) 551 U.S. 1 [127 S.Ct. 2218, 167 L.Ed.2d 1014] ooecccsccesssseeeesseeeeeseeees 30 Wainwright v. Witt (1985) 469 U.S. 412 : [105 S.Ct. 844, 83 L.Ed.2d 841] ooeeeeseseeseeteees 28, 29, 35. 39 Witherspoonv.Illinois (1968) 391 U.S. 510 [88 S.Ct. 1770, 20 L.Ed.2d 776] woecette rereteeeereeeeneeneeeiens 28 Xl CONSTITUTIONAL PROVISIONS Cal. Constitution, Article 1, § 7...reneeeseneesenenessenessesnneens 78 Cal. Constitution, Article I, § 24.0... cccceccseeeesneeereneeeennereeesesssensseeeeens 78 Cal. Constitution, Article VI, § 13 oo... ccccccseeesseeseneeeeenseesenensersnseeenens 63 United States Constitution, Amendment vuveveeeessaeeeesens 67, 72, 77, 81-83 United States Constitution, AmendmentXIV.......eees 64, 71, 72, 77 OTHER AUTHORITIES | CALTIC No. 8.84.2 ccccccssssssssssssssssssnseessesasssseesunnsceesecinnsseeseeensseetene 71 CALJIC NO. 8.85 ..cccceccccecseceseeseeerecieeseceneesssensessessesanenareaseaes 64, 65, 66, 67 CALJIC No. 8.88 veersvessatannnsenatanasnene 68-72, 76, 78 STATUTES Evid. Code, § 13 ...cccccccccesceccseeceeccnseerenseeseneessessssessesseessesenseenssenesnsenesaeys 62 Evid. Code, § 212.0... ccccsecsceeseneseeeseenreneseseneceeseeeeenens deveeeeeneneeeeeeeeass 53 Evid. Code, § 352.....cccccscscecsecseeeneseecnesseeseeseenersessessessecssneeeeeneneenees 49, 58 Evid. Code, § 353 v..cccecccccsscesceceseccneesieeesnnesenntenseeesresseesseeeesssessaseeneesas 62 Evid. Code, § 402.0... cesecereseneeeeessceseceeseesecieeseneteaeens 45,55, 56 Pen. Code, § 187, subd. (8) ....c. ccc eeeeeeseeeceneeceneeeneesenseseeesneeeeesseesseeessesesges 1 Pen. Code, § 190.2, subd. (€)(5) ..ccceceeccecseesereenecteeeeeeeseesteeseeenesserseseseaees l Pen. Code, § 190.2, subd. ()(7) ..ccecceccceecereceeseesseeetceseeeeneeseaseseeesseeneens 1 Pen. Code, § 1203.06, subd. (€)(1) oo.eeeeee cere eteseseeesssereeeeernneenes 1 Pen. Code, § 1239, subd. (D) oo... cccccececcecseeeeeeerereerestenesserseceseereessesneeneenes 2 Pen. Code, § 12022, subd. (a)(1) 0... eee ee eencee eee eeteceeseeeessseenessetensensees 2 Pen. Code, § 12022.5, subd. (a)(1) cescssccsscesssssessessesssessessseesecsesssessessneesees 2 xii INTRODUCTION | In the early morning hours on October 30, 1997, appellant shot and killed Los Angeles County Sheriff's Deputy Michael Hoenig with a loaded Colt .45 handgunthat he had stolen from his uncle. Several witnesses, including a witness who knew appellant personally, saw the shooting and later identified appellant as the shooter. Shortly after the shooting, law enforcement personnel found appellant hiding behind the garage of a home near the crime scene. Following his arrest, appellant led detectives to the location where he had thrown the murder weapon, which had appellant’s fingerprints on it. Appellant then confessed to the crime onat least three different occasions. STATEMENT OF THE CASE By indictment filed on March 11, 1998, a Los Angeles County Grand _ Jury accused appellant of one count of murder(Pen. Code’, § 187, subd. (a)). The indictment alleged that appellant committed the murder for the purpose of avoiding and preventing a lawful arrest (§ 190.2, subd. (a)(5)). It was also alleged that the victim, Los Angeles County Sheriff's Deputy Michael Hoenig, was a peace officer who wasintentionally killed while engaged in the performanceofhis duties, and that appellant knew and reasonably should have known that Deputy Hoenig was a peaceofficer engaged in the performanceofhis duties (§ 190.2, subd. (a)(7)). It was further alleged that appellant personally used a .45 caliber semiautomatic pistol during the commission of the offense (§§ 1203.06, subd. (a)(1); 12022.5, subd. (a)(1)), and a principal was armed with a .45 caliber semiautomatic pistol (§ 12022, subd. (a)(1)). (ICT 181-182.) ' All statutory references are to the Penal Codeunless otherwise indicated. Trial was by jury. On December2, 1998, the jury convicted appellant of first degree murder and found the special allegations to be true. (SCT 918, 924-925.) At the penalty phase, the same jury returned a verdict of death. (SCT 945,950.) After denying appellant’s motion to reduce the penaltyto life imprisonment withoutthe possibility of parole, the trial court sentenced appellant to death, and imposed a consecutive term of ten years (upper term) for the firearm-use finding. Appellant receiveda total of 518 days custody credit, consisting of 450 actual days and 68 days good time/work time. (SCT 983, 986-987.) The appeal is automatic. (§ 1239, subd.(b).) STATEMENT OF FACTS GUILTY PHASE A. Prosecution Evidence Nada Watson Witnesses Deputy Michael Hoenig’s Murder At approximately 1:00 a.m. on October 30, 1997, Nada Watson, a prostitute, was standing at the corner of Long Beach Boulevard and Seminole Avenue in South Gate waiting for her “date” or “trick” when she encountered Los Angeles County Sheriff's Deputy Michael Hoenig. Deputy Hoenig gotout of his patrol car to speak to Watson. Watson knew Deputy Hoenig because he hadarrested her on a cocaine-related charge in the past. Despite the arrest, Watson was on good terms with Deputy Hoenig. (SRT 1184-1186, 1196, 1282.) While Watson spoke to Deputy Hoenig, appellant rode his bicycle past them going south on Long Beach Boulevard. (SRT 1191, 1196.) Watson knew appellant from a “dope house”in the area. In fact, she had last seen appellant at the dope house a few hours earlier that evening, at which time appellant told Watson he had a gunin his waistband. Watson thought appellant was “iiving” because he appeared nervous. Watson would have warned Deputy Hoenigabout the gun had shebelieved appellant. (SRT 1192-1193, 1225.) When Deputy Hoenig saw appellant, he ordered appellant to stop because appellant wasriding his bike withoutlights, a traffic violation, and because Deputy Hoenig had information that individuals on bicycles were involvedin burglaries in the area. (SRT 1193; 1313-1315, 1366.) Appellant extended his middle finger in an obscene mannerandsaid, “Fuck you, cop.” Appellant then rode away quickly going west on Seminole Avenue. (SRT 1194-1195.) Deputy Hoenig got back into his car, made a U-turn on Long Beach Boulevard, and followed appellant on Seminole Avenue. (SRT 1195-1196.) Watsongotinto her date’s car, and they drove south on Long Beach Boulevard to Martin Luther King Boulevard. They continued west on Martin Luther King Boulevard and turned north onto Pescadero Avenue. At the corner of Pescadero and Seminole Avenues, Watson could see that Deputy Hoenig had pulled his car over to the curb. (SRT 1197-1199.) Deputy Hoenig’s headlights, break lights, and light bar were on. Watson heard a gunshot, but she did not know whofired that shot.’ (SRT 1197, 1200, 1202.) Watson’s date kicked herout of the car and drove away. (SRT 1201-1202.) As Watson stood on the corner of Pescadero and Seminole Avenues, she saw appellant fire two more shots at Deputy Hoenig, who wassitting in the driver’s seat with half of his body outside the car and the driver door opened. Appellant was standing nearthe left * Watsonlatertestified that she saw appellant shoot Deputy Hoenig from the back window while the deputy wassitting in his car reaching for a - “walkie-talkie” on his radio. (SRT 1205-1206.) According to the prosecution’s theory, the first shot was fired through the rear window of Deputy Hoenig’s patrol car. (4RT 1136.) rear tire of Deputy Hoenig’s patrol car holding a black handgun, possibly a “38” or “9MM,” with both handsdirectly in front of his chest. Watson could see appellant’s arms bend from the gun’s recoil each timehefired a shot. (RT 1202-1208,1212.) Watsontestified that she saw appellantfire two shots, but she heard a total of five or six shots. (SRT 1205, 1207, 1223.) After the shooting, appellant ran aroundthe patrol car and got back on his bike that he had left by a tree. Appellanttried to ride away,butfell off his bike whenit hit a fence. He eventually left the bike on the ground and fled on foot. (SRT 1208-1209, 1221.) Watson watched appellant run around a corner, and thought he hid in some bushes, but she later realized that she was mistaken. (SRT 1210-1212, 1214-1216.) As Watsonran east on Seminole Avenue, she heard gunshots behind her. (SRT 1212, 1222- 1224.) Watson saw police cars going to the crime scene, so she flagged down a sheriff's deputy to report the shooting and because she heard Deputy Hoenig calling for help. Watson also took the deputy to the bushes where she thought appellant hid. (SRT 1213-1216, 1228.) Watson later identified appellant as the shooter at an in-field show-up. Appellant, however, was not wearing the blue/black hooded sweatshirt or the . blue/black baseball cap he had on during the shooting. (SRT 1216-1219.) Watsonalso identified appellant in court. (SRT 1196.) Watson admitted that she had consumedabout 20 ounces of beer and “smoked some rocks”several hours before witnessing the shooting. However, Watson said that her alcohol and drug use did not interfere with her ability to hear or understand what wasbeingsaid to her, or her ability to recognize appellant. (SRT 1226-1228.) South Gate Police Officers Respond to the Crime Scene South Gate Police Sergeant Tim Lee Williams,a shift supervisor, was the first officer to arrive at the crime scene in responseto a “shots fired” call. At the time, he did not know that an officer had been shot. (SRT 1254-1256.) When Sergeant Williams saw Deputy Hoenig’s patrol car, he actuallythought Deputy Hoenig wasthere responding to the call. (SRT 1256.) As Sergeant Williams parked behind Deputy Hoenig’s car, he saw Deputy Hoenig lying on the ground. Sergeant Williams movedhiscar to a location east of Deputy Hoenig, and illuminated the location with the lights on his car so he could see the shooter in case the shooter wasstill in the area. (SRT 1257.) South Gate Police Officer Frank Mena, a Canine Unit officer, was driving on Abbott Road at San Miguel Avenue in South Gate when he received a “shots fired” call or “hot call.” (4RT 1150, 1152-1153.) Officer Menadroveto the crime scene and saw Deputy Hoenig lying on the ground. (4RT 1153, 1157.) Deputy Hoenig was dressedin his Sheriff's Department uniform. (4RT 1159, 1163.) The driver’s doorof his patrol car was opened. (4RT 1158.) Officer Mena spoke to Sergeant Williams about what to do. Atthat point, Officer Mena and Sergeant Williams only knew that there was a sheriff’s deputy down. Neither man knew wherethe shooter was located, whether the shooter was watching,or if the shooter was within gunshot range. (4RT 1159-1160; SRT 1257.) Sergeant Williams and Officer Mena decided that Sergeant Williams would cover Officer Mena with a shotgun while Officer Mena wentto render aid to Deputy Hoenig. (4RT 1161; SRT 1258.) Officer Mena positioned himselfjust south of Deputy Hoenig’s patrol car. (4RT 1160.) Officer Mena found Deputy Hoenig lying on the ground with his nose and forehead resting on the pavement. Deputy Hoenig’s left arm wasresting underneath his body. He had a bullet woundto his right hand and blood on his throat. Deputy Hoenig was holding his gun, a Beretta 9-millimeter firearm, in his right hand, with his index finger on the trigger guard. (4RT 1161-1162; SRT 1170.) The “hammer” on Deputy Hoenig’s gun was down,the magazine wasatfull capacity, and there was a bullet in gun’s chamber,indicating that the gun hadnot been fired. (SRT 1170-1171; 6RT 1446-1447, 1450.) Deputy Hoenig’s back-up magazines werestill in his magazine pouch onhis belt, and they wereatfull capacity. (6RT 1449.) His back-up revolver also had not been fired. (6RT 1451- 1452.) Officer Mena removed Deputy Hoenig’s gun from his hand, rolled him over, and administered CPR. (4RT 1162, 1170.) Office Mena noticed that he was kneeling on a .45 caliber shell casing as he was administering CPR to Deputy Hoenig. (SRT.1171.) . South Gate Police Officer Carlos Fernandez cameto help Officer Mena. They checked for Deputy Hoenig’s pulse, but did not feel a pulse or hear him breathing. The officers removed Deputy Hoenig’s bullet-proof vest and administer CPR. Officer Mena neverreceived any response from Deputy Hoenig. South Gate Police Officer Rodney Bishopeventually joined the rescue efforts. He immediately noticed a bicycle onthe sidewalk and the broken rear passenger side window on Deputy Hognig’s patrolcar. The paramedicsarrived shortly thereafter to relieve the officers. (4RT 1162-1164; SRT 1266, 1268-1270, 1272-1273.) After the paramedics took Deputy Hoenig away, Officer Mena saw a bicycle near Deputy Hoenig’s patrol car. (SRT 1176.) Healso saw thatthe passengerwindow of Deputy Hoenig’s patrol car was broken. (SRT 1177- 1178.) - Residents LivingAbove the Crime Scene Witness the Murder After other law enforcement units began arrivingat the scene, Sergeant Williams spoke to Sandra Carranza and Luis Gomez who both lived in a building just northwest of the crime scene. (SRT 1258-1259, 1295-1296.) Sandra Carranza lived at 3041 Seminole Avenue with her husband. She wassleeping at 1:15 a.m. when she was awakenedbythe sounds of gunshots. Carranza looked out the window and saw a man stumbling around on her driveway. He wasdressedin dark clothing -- “really over sized pants and sweater” and a black baseball cap. Carranza said the area was “verylit” by several different lights, including the lights from Deputy Hoenig’s patrol car. (SRT 1281-1283, 1285, 1301.) Carranza heard gunshots and saw flashes near the man’s upper body. The man moved in a southeasterly direction as he fired. After the shooting, the man ran westbound on Seminole Avenue. (SRT 1284-1285.) Carranza called 9-1-1 and reported the shooting to the Southgate Police Department. (SRT 1291.) Later that morning, Carranza identified appellant as the shooterat an in-field show-up. Carranza said appellant’s clothes were “mangled”or “shredded”by that time, and he was not wearing his baseball cap. (SRT 1296-1297, 1300.) Carranza again identified appellant in court. (SRT 1299-1300.) Like Carranza, Luis Gomez was awakened by the sounds of gunshots. Gomez likewise saw appellant stumbling around on his driveway, then running away. Appellant was dressed in brown pants, a dark sweatshirt, and a white tank top or t-shirt. He also wore a black cap. Other than the initial gunshots, Gomez did not hear any additional shots. (SRT 1300- 1301.) Gomezlater identified appellant as the shooterat an in-field show- up. However, appellant was not wearing the dark sweatshirt or cap at the time of the identification. Gomezalso noticed that appellant’s pants were “torn up.” Gomezalso identified appellant in court. (1SRT 1303-1304.) Reyes Estrella Quintero lived on the corner of Capistrano Avenue and Seminole Avenue. (SRT 1406.) He wasasleep at 1:15 a.m. when he heard gunshots from a large caliber weapon and someoneyelling, “Fucking police.” (SRT 1406-1407.) Quintero looked out the window and saw a policeman lying on the ground next to a gun. (SRT 1408.) He called 9-1-1 and said “somebody killed the police.” (SRT 1409.) The next day, Quintero discovered that his brother-in-law’s van andhis sister-in-law’s car sustained some gunshot damage. (SRT 1410.) Appellant is Found Hiding in the Backyard of a House Nearthe Crime Scene Sergeant Williamsreceived information that the police dispatcher had received a call regarding suspicious noises at a house on Montara Avenue. Sheriff's deputies and police officers immediately set up a perimeter around the house, as a well as a larger perimeter aroundthe entire neighborhood,to find the shooter. (SRT 1260, 1262-1263, 1274-1275, 1413-1414.) Sergeant Williams believed the shooter was at the house on Montara Avenue because it was located in the direction in which the witnesses had seen the shooter run. (SRT 1261.) Los Angeles County Sheriff's Deputy Steven Wilkinson andhis canine partner, “Ronnie,” participated in the search for the shooter. Based on information from the police dispatcher, the search efforts focused on a property at 10448 Montara Avenue. (SRT 1320-1322.) Ronnie and the search team cleared the driveway andfront of the garage. (SRT 1324, 1328-1330.) As Ronnie searchedthe sideof the garage by a cement block wall, Deputy Wilkinson heard appellant say, “I’m here. You got me.” Appellant was lying flat on his back, and his hands were notvisible to Deputy Wilkinson. (SRT 1331-1333.) Ronnie bit appellant, and Deputy Wilkinson ordered appellant to show Deputy Wilkinsonhis hands, but appellant refused to comply with Deputy Wilkinson’s orders. (SRT 1334- 1335.) Upon Deputy Wilkinson’s command, Ronnie pulled appellant out of his hiding place, and Deputy Wilkinson could see that he did not have anything in his hands. Officers took appellant into custody. (SRT 1335- 1336.) The paramedics treated appellant’s injuries from Ronnie’s bite. (SRT 1337-1338.) Sheriff's Detective Eugene Fines founda black leather cap in the back of the garage at 10448 Montara Avenue. (6RT 1418, 1421) In the backyard of 10451 Pescadero Avenue, a residence directly behind 10448 Montara Avenue, Detective Fines found a ladder propped up against a cementblock wall. (6RT 1420.) Recovery of the Murder Weapon and Collection of Ballistic Evidence Los Angeles County Sheriff’s Deputy Philip Geisler, a S.W.A.T. team member, recovered a chromestainless steel Colt .45 caliber semiautomatic pistol at 10432 Montara Avenue, a few housenorth of appellant’s hiding place. (SRT 1347-1348; 6RT 1432.) The gun waslying nextto a planter. The gun’s slide was “locked backindicating that the weapon waspossibly empty.” (SRT 1347-1349.) Test fires conducted by Los Angeles County Sheriff's Deputy Patricia Fant revealed that the Colt pistol was the murder weapon. (6RT 1444-1445.) At the crime scene, Los Angeles County Sheriff's Sergeant John Greenwoodand Deputy Fant collected a total of seven shell casings -- one underneath a fence on the sidewalk, three on the street in front of the patrol car, and three on the street by the driver’s side of the patrol car. (SRT 1351, 1356, 1358-1359; 6RT 1441, 1453-1457.) All seven shell casings were .45 caliber. (SRT 13601; 6RT 1443.) Sergeant Greenwoodalso collected four “projectiles or fragments of projectiles” below the driver’s side of Deputy Hoenig’s patrol car. (SRT 1361.) Additionally, there werethree other bullet fragments recovered from the keyboard of the mobile digital console in Deputy Hoenig’s car, the rear of a van parked nearby, and the hubcap of a second van parked nearby. (SRT 1362.) Finally, a bicycle was found near the bullet on the sidewalk;it did not have anylights on it. (SRT 1364, 1366.) The rear passenger and back windowsof deputy Hoenig’s patrol car were shot out. A bullet had traveled through the dashboard andstruck the inside of the windshield, in front of the steering wheel, but it did not penetrate the windshield. Based on bullet trajectory analysis, Deputy Fant determined that the shooter stood near the bike on the sidewalk when he fired the bullet that hit the dashboard and windshield. (6RT 1462-1463.) Deputy Fant recoveredthat bullet from inside the patrolcar; it had glass and bloodon it.’ (6RT 1464-1465.) Blood Spatter Evidence Los Angeles County Sheriff's Criminalist Dean Gialamas processed Deputy Hoenig’s patrol car. (6RT 1489.) When Criminalist Gialamas arrived at 6:50 a.m., Deputy Hoenig’s car wasstill running andall the doors were closed. Criminalist Gialamastried to turn off the engine, but he could. not do so becausethe gear shift was set between the ‘‘Park” and “Reverse” positions, which indicated that it had not been fully engaged in the park position. (6RT 1492-1493.) There was a tremendous amount of blood spatter inside the patrol car. (6RT 1495.) Criminalist Gialamas documentedthe blood evidence on a hand-drawn diagram (People’s Exh. No. 68). Criminalist Gialamas drew the diagram while sitting in the driver’s seat. The blood spatter pattern on the windshield showedthatthe blood traveled away from the gear shift in an upward direction to the left. (6RT 1495-1496.) There wasalso tissue evidence and other blood evidence on various portions of the equipment inside the car. (6RT 1497-1498.) However, there was no blood on the gear shift lever, which indicated that something blocked or prevented blood from splattering on the gear shift lever. That evidence suggested that Deputy Hoenig’s hand was on the gear shift lever when the bullet struck his * Duringtrial on November 23, 1998, the court permitted the jury to view Deputy Hoenig’s patrol car in the courthouse “bus bay.” The jury could only walk around the car. (6RT 1574-1577.) 10 hand. (6RT 1500-1502.) Criminalist Gialamas also found blood droplets | on the exterior of the rear left door, suggesting that the driver’s door was opened whenthe blood droplets were deposited. (4RT 1499.) Based onthe directional blood spatter evidence present inside Deputy Hoenig’s patrolcar, the bullet trajectory analysis, and the coroner’s report, Criminalist Gialamas opinedthat the bullet had to have traveled from outside of the patrol car, through the back window and towardthe front windshield. Criminalist Gialamas explained that blood spatter generally traveled in the direction of the bullet. Since all the spatter evidence was toward the dash, that meant the bullet had to come from the opposite end, which wasthe rear of the car. (6RT 1502-1503.) Appellant’s Fingerprints are Found on the Murder Weapon Los Angeles County Sheriff's Sergeant Thomas Lapisto processed the Colt .45 caliber semiautomatic pistol found at 10432 Montara Avenue. (6RT 1537.) Sergeant Lapisto recovered twoidentifiable fingerprints; one from the slide of the gun, and one from the magazineinside the gun. (6RT 1541-1543.) Forensic Identification Specialist William Leolater determined that the latent print from the slide matched appellant’s left palm print just below the index finger. The latent print from the magazine matched appellant’s left thumb print. (6RT 1552-1555.) Pursuant to departmental policy, two other sheriff’s expert fingerprint examiners examinedthe latent prints, and they confirmed Mr. Leo’s findings. (6RT 1556-1557.) An Autopsy Reveals that Deputy Hoenig Bled to Death From a Gunshot Wound That Tore Through His Aorta Dr. Eugene Carpenter performed the autopsy of Deputy Hoenig. (SRT 1369, 1371.) Deputy Hoenig did not have any alcohol ordrugsin his system. (SRT 1372, 1374.) Deputy Hoenig had a small abrasion on his right cheek andbruisingto hislips that are consistent with a fall onto an 11 asphalt street, and small abrasions on his knees and his wrists. (SRT 1375- 1376.) Deputy Hoenig also had a blunt force injury on his right lower back due to a bullet hitting his bulletproof vest. (SRT 1376-1377.) That bullet traveled upward and lodgeditself on the outside Deputy Hoenig’s bulletproof vest. (6RT 1471-1472, 1480.) Deputy Hoenig died from a gunshot woundto the upperchest just below his throat. The fatal bullet entered his chest from the front, passed through the breast plate in a downward motion,hit the aorta, and then exited the right lower back near the spine. (SRT 1377-1378, 1388, 1391, 1398-1399.) That bullet lodged itself inside Deputy Hoenig’s bulletproof vest. (SRT 1391-1393; 6RT 1470-1474.) Dr. Carpenter explained that Deputy Hoenig lost consciousness within about five to ten secondsafter sustaining the wound, and bled to death in less than a minute. (SRT 1389- 1390.) Deputy Hoenig also had non-fatal through-and-through bullet woundsto his lowerleft leg and his right hand. The leg wound showedthat the bullet entered the front of the leg while Deputy Hoenig’s leg was bent, moved downward, and exited the back of the leg. The wound on the hand showedthat the bullet entered near the wrist and exited out the base of the long finger. (SRT 1378, 1383; 6RT 1477.) Dr. Carpenter opined that a large caliber weapon, such as a .45 caliber semiautomatic pistol, caused all of Deputy Hoenig’s wounds. (SRT 1384.) Deputy Hoenig’s injuries were consistent with him falling to the ground after being shotin the leg, and the shooter advancing toward him while shooting in a downward manner. (SRT 1400-1401.) Computer Animation Evidence Parris Ward and Dr. Carley Ward worked for Biodynamics Engineering, a consulting firm on injury-causing events. (6RT 1559, 1592.) The Los Angeles County Sheriff’s Department retained Mr. Ward and Dr. Ward to develop a computer animation re-enactmentof the 12 shooting involving Deputy Hoenig. (6RT 1561, 1596.) The computer animation wasbasedonthe police reports, police photographs, the coroner’s report and photographs, Mr. Ward’s various measurementsat the crime scene using a Nikon Total Station (a device used by surveyors to take precise measurements ofterrain), Mr. Ward and Dr. Ward’s examination of Deputy Hoenig’s patrol car and bullet proof vest, and their consultation with other experts involved in this case. Mr. Ward took close to 200 measurements to accurately create a three-dimensional model of the crime scene, which included various landmarks, and items suchasthe bicycle, shell casings, various cars, and Officer Hoenig’s patrol car. Mr. Ward also included in his measurements the view of an upstairs apartment overlooking Seminole Avenue. (6RT 1561-1569, 1582-1583, 1596-1597.) The animation did not show the actual shooter moving in the conventional sense because Mr. Warddid not have any information about the shooter’s body position or how he held his gun. Rather, the animation depicted the general locations where the shots were fired through the use of still frames that were “dissolved between them” based on the photographs of crime scene, the measurements taken by Mr. Ward, the physical evidence obtained from the crime scene, and the coroner’s report and photographs. Mr. Ward explainedto the jury that the computer animation was not meant to show whathad actually happened. Rather, it was an “illustrative tool for explaining concepts.” (6RT 1569-1570.) Mr. Wardsaid the primary locations where the shooter fired his gun were determined from bullet trajectory, shell casing placement, and information he obtained from other experts involved in the case. (6RT 1571-1572, 1582-1583.) The shot sequence shownon the animation was numberedarbitrarily because Mr. Ward could not determine the actual sequence. However,it was his best estimate that the sequence was as follows: Shot number | occurred by a tree, shot numbers 2, 3, and 4 were 13 fired from the street on the driver’s side of the patrol car, and shot numbers 5, 6, and 7 werefired over by the curb on the driver side. (6RT 1581- 1583.) Mr. Ward determined this progression of shots made the most logical sense based on the evidence. (6RT 1586-1587.) With regard to shot numbers 2, 3, and 4, Mr. Ward opined that they werefired in the stated order based onhis review of the evidence and information obtained from other experts in the case. Mr. Ward explained that shot number 1 was most easily defined becauseofthe shell casing that was found by the bicycle, the broken patrol car’s rear window,the bullet wound to Deputy Hoenig’s hand,the bullet strike to the dashboard, and the bullet’s final resting place by the driver’s window. trajectory analysis “connecting the dots between those points” would reveal the location of shot number 1. (6RT 1584- 1585.) According to Dr. Ward, shot number1, fired from the tree, hit Deputy Hoenig’s hand while he wasstill in the patrol car. That shot was fired “at some distance.” (6RT 1598-1599.) Dr. Ward determined that shot number 2 was fired while Deputy Hoenig wasstill sitting in the patrolcar, turned to his left with his feet flat on the ground to exit the car. The bullet hit Deputy Hoenig’s leg, causing him to fall to his knees. The entry and exit wounds to Deputy Hoenig’s leg suggested that he had turnedto face the shooter. (6RT 1599-1600, 1604.) Shot number 3 was fired while Deputy Hoenig was leaning over. Dr. Ward believed the shooter took a step or two closer to Deputy Hoenig and shot Deputy Hoenig while he was on his knees. The bullet from shot number 3 entered Deputy Hoenig’s chest and ripped through his aorta, causing him to bleed to death. (6RT 1601-1604.) The bullet wound to Deputy Hoenig’s chest, and the lack of stippling and sooting, suggested that the shooter was fairly close to Deputy Hoenig when he fired the third shot, about four to six feet away. (6RT 1605-1607.) A shell casing found by the driver’s side.door supported that theory. (6RT 14 1609.) The shooter fired shot number 4 down at Deputy Hoenig while Deputy Hoenig either laid on the ground or leaned way over. This bullet hit Deputy Hoenig in the back and was stopped byhis bulletproofvest. (6RT 1607-1609.) Appellant Confesses to Murdering Deputy Hoenig Los Angeles Sheriff’s Sergeant Jack Ewell took appellant into custody after he was extracted fromhis hiding place. (6RT 1613, 1615-1616.) Sergeant Ewell asked appellant to take him to the location where appellant threw the murder weapon so no one would get hurt. Appellant led Sergeant Ewell to 10432 Montara Avenue. While they were walkingto that location, appellant told Sergeant Ewell, “Why don’t you just kill me. I deserve to die for what I did.” Appellant also said, “I don’t know why I did that. That cop was writing a ticket and I just started shooting him.” Appellant spoke in English. (6RT 1616-1617.) Sergeant Ewell then took appellant to the paramedics for treatmentof his dog bite wounds. (6RT 1618.) Deputy Geisler later recovered the Colt .45 caliber semiautomatic pistol at 10432 Montara Avenue. (SRT 1347-1348; 6RT 1616.) Los Angeles Sheriffs Sergeant Isaac Aguilar and his partner Detective Martin Rodriguez took custody of appellant after he was treated by the paramedics. (6RT 1623-1625, 1654, 1657.) Sergeant Aguilar advised appellant of his constitutional rights from a Sheriff's Department admonition card. Sergeant Aguilar read appellant his rights in English because appellant said he understood English. Appellant indicated he understood his rights and initialed paragraphs 5, 6, and 7 on the card asit was read to him. Appellant also signed, dated, and put the time on the card. (6RT 1625-1628, 1642, 1657.) | Sergeant Aguilar and Detective Rodriguez drove appellant to Downey Community Hospital for additional treatment of the dog bite. (6RT 1629, 1657.) Sergeant Aguilar spoke to appellant during the ride to the hospital. 15 Most oftheir conversation was tape-recorded by a hidden recording device that was attached to Detective Rodriguez’s arm. (6RT 1629-1631.) Appellant saidthat before the shooting, he was at a house on Stanford Avenue near Seminole Avenue and Montara Avenue. Appellant was carryinga silver Colt .45 caliber gun with a black grip. Appellant had stolen the gun from his uncle two weeks before then, and had been carrying it around for the last three days to protect himself from gang members. (6RT 1630; People’s Exh. No. 77Aat pp. 4-5, 10, 15.) Appellant said he loaded the gun with seven or eight silver and gold bullets, and was contemplating using it to rob someone of moneythat night. (People’s Exh. No. 77A at pp. 6, 10-11, 15-17.) Appellant directed Sergeant Aguilar and Detective Rodriguez to the | house on Stanford Avenue andalso to the location on Long Beach Boulevard and Seminole Avenue where appellant first encountered Deputy Hoenig. (6RT 163 0-1631, 1658-1660.) Appellant explained he wasriding his bicycle on Long Beach Boulevard when he encountered Deputy Hoenig. (People’s Exh. No. 77A at pp. 2, 6.) Appellant did not want to stop for Deputy Hoenig because he was “tweaking” and he had a gun on him. (People’s Exh. No. 77A at p. 2.) Appellant claimed Deputy Hoenig tried to run him over with the patrol car, causing him to fall off his bike. Deputy Hoenig then got out of the patrol car and pointed a gun at him. - Appellant initially said he got on the ground, andfired seven to nine shots at Deputy Hoenig before Deputy Hoenig shotat him, but appellant did not know whether he hit Deputy Hoenig. (/d. at pp. 2-3, 7-8, 14.) However, appellant later changedhis story and said Deputy Hoenig shotat him first, and he then returnedfire. (/d. at pp. 8-9.) At the hospital, appellant told the treating doctor, “I think I shot a police officer.” (6RT 1661.) After appellant received medical treatment, Sergeant Aguilar and Detective Rodriguez took him to the Sheriff's 16 Department homicide headquarters in the City of Commerce. (6RT 1633.) They interviewed appellant in an interview room that was wired with a hidden videotape recording device. (6RT 1633-1634.) Sergeant Aguilar and Detective Rodriguez sometimes spoketo appellant in Spanish. Although they were notfluent in Spanish, they spoke enough Spanish to be able to interview Spanish-Speaking suspects. (6RT 1624.) Appellant again said that he had stolen the gun from his uncle, and wascarrying it around for three days before the shooting. The gun was loaded with seven or eight bullets. (6RT 1665; People’s Exh. No. 78A at pp. 9-10, 21-22.) Appellant had planned on using the gun to rob someone. (People’s Exh. No. 78A at pp. 10-11.) Appellant repeated thathe was “tweaking” with his friends at an apartment on Stanford Avenue. (People’s Exh. No. 78A at p. 3.) He was riding his bicycle home when Deputy Hoenig tried to stop him. (/d. at pp. 4,6.) Deputy Hoenig was dressed in a uniform and driving a black and white patrol car. (/d. at pp. 14-16.) Deputy Hoenig motioned appellant to comeoverto the patrol car. (/d. at p. 24.) Appellant did not want to stop because he was “tweaking on speed” and had a gun on him. Appellant said Deputy Hoenig followed him andtried to “cut him off” with his patrol car. Appellant went aroundthe car and fell down. (dd. at pp. 4, 7, 11-12.) Whenappellant got up and ran away, Deputy Hoenig got out of the car and fired one or two shots at him. Appellant took out a silver Colt .45 caliber handgun andfired seven or eight shots back at Deputy Hoenig. (6RT 1666; Id, at pp. 4, 8-9, 17-18.) Appellant said he was on the ground about 15 to 20 feet from Deputy Hoenig when he shot Deputy Hoenig. (People’s Exh. No. 78Aat pp. 17, 19-20.) Appellant heard Deputy Hoenig groan and saw him fall to the ground, but appellant thought Deputy Hoenig was reaching for another gun. Appellant did not know whetheror not he had hit Deputy Hoenig, and he continued to run away. (/d. at pp. 4, 9, 16, 18.) Appellant 17 believed he shot through the back window of Deputy Hoenig’s patrol car becausehe heard glass shatter. (/d. at pp. 26, 28.) Appellant ran for two or three blocks and threw the gun onthe roof of a house, and hid in a doghousein the backyard of a house for about twenty minutes before a police dog found him. Thedog bit appellant and dragged him out. Appellant claimed the police beat him after the dog bit him several times. (People’s Exh. No. 78Aat pp. 5, 20.) At the time of the shooting, appellant said he wore a white shirt, a dark sweater, brown pants, black and white shoes, and a leather baseball cap. Ud. at pp. 30-31.) Appellant said that he shot Deputy Hoenig because he did not wantto go to jail for possessing a gun. (/d. at p. 34.) Appellant also said he acted alone. (/d. at pp. 28-29, 37.) Appellant admitted he would have fled to Mexico if he had gotten away with the crime. (/d.at p. 36.) According to Detective Rodriguez, appellant was alert, awake, and responsive during the interview. He spoke in both English and Spanish, and at no time indicated that he did not understand English or his constitutional/legal rights. Sergeant Aguilar and Detective Rodriguez never promised appellant anything or threatened him. (6RT 1640, 1642-1643.) Based on appellant’s statements and Detective Rodriguez’s training and experience, he believed appellant was under the influence of methamphetamine. (6RT 1662.) Detective Rodriguez explained that a central nervousstimulant, such as methamphetamine, generally speeds up the brain operation and escalate the spinal cord reaction to produce rapid movements, but it does not usually distort the reasoning process,that is, the individual’s ability to understand, his/her awareness, and his/her coherence. Detective Rodriguez said that appellant was very aware of “what was going on’during the interview. (6RT 1663.) Appellant respondedto directions and the questions appropriately. Appellant becametired and sleepy at the 18 end of the interview whenthe effects of the methamphetamine beganto wearoff. (6RT 1664.) At the conclusion ofthe interview, Detective Rodriguez left the room to turn off the video camera. When he camebackinto the room, he picked up the admonition card that was read to appellant earlier that night. Appellant noticed the Spanish languageside of the card and asked if he could read it. After appellant read the card aloud, Sergeant Aguilar asked him if he wanted to sign it. Appellant responded, “Yes,” and initialed and signed the Spanish side of the card. (6RT 1641-1642, 1661-1662.) Appellant’s Blood Sample Tests Positive for Methamphetamine Medical personnel obtained a blood sample from appellant while he was at Downey Community Hospital. (6RT 1515, 1633.) The blood sample tested negative for alcohol,but positive for methamphetamine. (6RT 1518, 1520.) Los Angeles County Sheriff's Criminalist James Lovastestified that methamphetamine wasa stimulant that causes a person to feel euphoric or talkative, or it could cause muscle tremors, dry mouth, lack of appetite, rapid speech, elevated pulse, elevated blood pressure, elevated body temperature, and dilated pupils. (6RT 1518.) When methamphetamineis ingested, it metabolizes into amphetamine. Appellant’s blood sample showed 41 nanogramsper milliliter of amphetamine and 222 nanograms per milliliter of methamphetamine. (6RT 1520.) Criminalist Lovas could not give an opinion aboutthe level of intoxication or impairmentthat those concentrations would have on an individual. (6RT 1520-1522.) However, based onstatistical research for the years 1995 through 1998 of methamphetamine and amphetamine cases submitted to the Sheriff's Departmentcrime lab, Criminalist Lovas determined that 41 nanogramsper milliliter was the average concentration of amphetamine foundin the blood in those cases; 222 nanogramsper milliliter was 33 percent lower than the 19 average concentration for methamphetamine found in the blood in those cases. (6RT 1522-1525.) Eliseo Villa Discovers His Gun is Missing Eliseo Villa was married to appellant’s cousin; they lived in Compton. (4RT 1145.) Appellant stayed with Villa and his wife periodically. (4RT 1148.) Villa had his own businessselling cars. In April 1991, Villa purchased a chrome “government model” “Colt Mark IV series 80” .45 caliber semiautomatic handgunto use as protection for his business. The serial number of the gun was SS44874, andit was registered with the California Departmentof Justice Automated Firearms System. (4RT 1146- 1147; SRT 1181-1182.) Villa normally kept the gun at work. However, in October 1997, he took the gun homeand putit under his mattress because he was going on trip and the business was going to be closed. Three days after returning from his trip, Villa discovered that his gun was missing. He became concerned when he heard about Deputy Hoenig’s murder. (4RT 1148.) Villa reported the gun missing to the Sheriff's Department. Villas said that he never gave appellant permission to take his gun. (4RT 1149.) B. Defense Evidence The defense did not present any evidencein the guilt phaseoftrial. PENALTY PHASE‘ C. Victim Impact Evidence The prosecution offered the testimony of the following witnessesto show the impact of the murder upon the victim’s family and friends: Steven Hoenig, David Hoenig, Debra Hite, Deputy Terresa Gunnels, Mary * As respondentwill be referring to many witnesses with the same last name, respondentwill use their first names to avoid confusion. No disrespect is intended. 20 Hoenig, and Robert Hoenig. The prosecutor also showedthejury numerous photographs of Deputy Hoenig duringhis life and of his funeral. Deputy Hoenig was born on January 4, 1965. (7RT 1877.) He was the third oldest child of four children born toMary and Robert Hoenig. (7RT 1820-1821.) Deputy Hoenig wasnice,serious, private, “annoyingly neat,” and he hada lot of friends. (7RT 1877-1878, 1900.) The family was close and took manytrips together. (7RT 1896.) After receiving his bachelor degree from California State University Los Angeles, he enrolled in the law enforcement academy at Rio Honda College. Deputy Hoenig was sworn in as a Deputy Marshal in 1987. (7RT 1898-1899.) He became a Deputy Sheriff after the Marshal’s Department merged with the Sheriffs — Department. (7RT 1857-1858, 1900-1901.) Steven Hoenig was Deputy Hoenig’s youngerbrother. (7RT 1820.) Steven said Deputy Hoenig washis closest friend. (7RT 1828.) Steven and Deputy Hoenig were very close growing up because they were less than two years apart in age. They shared manyofthe same friends and belonged to the same organization -- Odd Fellows --that helped the elderly, poor, and disabled. Deputy Hoenig wasthe “highest state officer for that organization.” (7RT 1821-1822.) When Deputy Hoenig was not working, he enjoyed many outdoorsactivities, especially fishing. Steven and Deputy Hoenig developed a fondnessfor fishing in their early childhood years whentheir father would take them camping. Steven and Deputy Hoenig continuedto share their love offishing, and often took fishing trips together. (7RT 1822-1824.) Steven took his last fishing trip with Deputy Hoenig a month before Deputy Hoenig was murdered. (7RT 1829-1830.) Steven was away at college when he learned of Deputy Hoenig’s death. (7RT 1830-1831.) He came homeandpersonally thanked the officers who hadtried to save his brother. The officers reassured Steven that his brother died while surrounded by people who loved him. (7RT 21 1833.) For four months after Deputy Hoenig’s murder, Steven slept with his lights on because he had reoccurring nightmares about Deputy Hoenig’s murder. (7RT 1834.) Steven failed most ofhis college classes, and took some time off school. Steven believed he had failed Deputy Hoenig by not being there for him the night he died. (7RT 1835-1837.) David Hoenig was Deputy Hoenig’s eldest brother. (7RT 1838.) David considered himself selfish and irresponsible, a “lost soul.” Even though David did not have a close relationship with Deputy Hoenig, he believed Deputy Hoenig was his moral compass and hadinspired him to changehis life. After Deputy Hoenig’s death, David decided to go back to school and to eventually becomea police officer like his brother. (7RT 1839-1841.) David said he often visits the cemetery gates at night when he could not sleep. (7RT 1875-1876.) Debra Hite was Deputy Hoenig’s longtimegirlfriend. (7RT 1846- 1847.) Hite considered Deputy Hoenig herbest friend, and she shared with the jury the memories ofher last vacation with Deputy Hoenig. (7RT 1847-1849.) The program distributed at Deputy Hoenig’s funeral featured a picture that Hite had given to the family, as well as her final note to Deputy Hoenig that read: “To Mike: [{] I would rather have 30 minutes of wonderful than a lifetime of something special. [§]] Thank you for my eight years of wonderful.” (7RT 1853.) Los Angeles County Sheriff's Deputy Tressa Gunnels met Deputy Hoenig in 1990 while he was a Deputy Marshall at the Los Angeles County traffic court. (7RT 1854-1856.) When the Marshall’s Department merged with the Sheriff's Department, both Deputy Hoenig and Deputy Gunnels were transferred to the Century Sheriff’s Station, where they became partners assignedtotraffic patrol. (7RT 1857-1858.) Deputy Gunnels explained that they responded to manytraffic accidents, and when the accident involved children, Deputy Hoenig would give the children stuffed 22 animals that he kept in the trunk oftheir patrol car to calm down the children. (7RT 1859-1860.) Deputy Gunnels said that Deputy Hoenig was well liked at the Century Station as he was quiet and helpful. (7RT 1861.) Deputy Gunnels recalled responding to the crime scene and seeing Deputy Hoenig lying on the ground in a pool of blood after the shooting. She explained that Deputy Hoenig’s death affected the sheriff's deputies “a great deal,” and that there had been a “dark cloud” hanging over the Century Station ever since his death. In fact, one of the officers who had rendered CPR to Deputy Hoenig at the scene went on leave and had not returned to work. Deputy Gunnels stated that it was “because ofthe gruesomescenethat he saw that night.” (7RT 1861-1868.) Deputy Gunnels said she would never recover from Deputy Hoenig’s murder. (7RT 1873.) Membersofthe Century Sheriffs Station each placed a rose near Deputy Hoenig’s picture or gravesite to show their support, love, and respect. (7RT 1872.) Deputy Gunnelstestified that the citizens of South Gate created a memorial for Deputy Hoenig at the crime scene with candles, notes, flowers, and other items. Theyalso started a “Stop the Violence” campaign in honor of Deputy Hoenig. (7RT 1870.) The Sheriff's Departmentretired the numbers on Deputy Hoenig’s patrol car after his death. (7RT 1869.) Mary Hoenig was Deputy Hoenig’s mother. Mary was disappointed that Deputy Hoenig worked in a one-man car in whatshe referred to as the “worst area to work in.” (7RT 1881.) Mary expressed regret for blaming Deputy Hoenig’s death on his captain after the shooting. (7RT 1883.) Following Deputy Hoenig’s death, Mary attended some survivor group meetings to cope with his death. She was encouraged to keep a journal of her feelings, but her journal consisted of only three pagesofletters to Deputy Hoenig. (7RT 1883.) Marysaid that she stopped going to the 23 survivor meetings because they were depressing, she said, “It’s like October 30th all over again, every time we go to one of these meetings . .. .’ (7TRT 1890.) When asked what she would say to Deputy Hoenig, Mary said, “I’m sorry.” (7RT 1894.) . Robert Hoenig was Deputy Hoenig’s father. (7RT 1896.) Robert recounted Deputy Hoenig and Steven’s involvement in Odd Fellows, and said that he eventually joined the organization because he was proud of Deputy Hoenig’s involvement. (7RT 1896-1897.) Robert talked about Deputy Hoenig’s love for fishing and his frequent fishing trips to Lundy Lake with his friends from the Sheriff's Department. A week before his murder, Deputy Hoenig went to Lundy Lake with his friends and jumped into the cold water during the “Polar Bear Jump.” (7RT 1902.) After Deputy Hoenig’s death, several of his fishing mates from the Sheriffs Department went back to Lundy Laketo dedicate two plaques to Deputy Hoenig. One of the plaquesis on display in the Lundy Lake general store, and the other oneis on display in the youth station at the former Firestone Sheriff’s Department. (7RT 1903-1904.) Robert helped clean out Deputy Hoenig’s lockerat the sheriffs station and claimed his car. In Deputy Hoenig’s gear bag that wasin the trunk ofhis patrolcar, Robertfoundlittle gifts that Deputy Hoenig’s kept for the children involvedin accidents. (7RT 1906.) Robert explained that during the courseoftrial, appellant was always smiling. Specifically, during the testimonyofthe police officer who performed CPR on Deputy Hoenig, appellant made eye contact with Robert and grinned at Robert. Robert felt angry that appellant “could assassinate [his] son and then just smile aboutit.” (7RT 1908.) Robert testified his family was “deeply affected” by Deputy Hoenig’s death, and they have not enjoyed a holiday season since his death. (7RT 1916.) 24 Finally, Robert read a poem authored by an officer who performed CPR on Deputy Hoenig: | A demonkilled a deputy tonight and bloodied the badge that he wore. Hewasshotin front of those he protected as several watched in horror. They watched from their windows and they watched from the street, they watched as a demon took Mike’slast heartbeat. The demon’s lawyer will stand up in court and demand the demonwasright, but where wasthe court on that dark lonely street, when Mike could no longerfight? Hepatrolled the dangerousstreets of that city, the streets that most could not walk. Helay on his back on those very streets, but Mike could no longertalk. Kneeling beside him wetried to revive a heartbeat or maybe a breath. His body neverreacted, it never came back, Mike hadbeenlost to death. I pleaded for God to give me more strength and let me see Mikealive. Mike, I pray for you then, and with all of my heart as I will for the rest of mylife. (7RT 1913-1914.) Thatofficer ultimately left the force. (7RT 1914.) D. Evidence in Mitigation Defense counsel presented evidence in mitigation from appellant’s family members and a family friend. Each witness asked the jury to impose life without the possibility ofparole. According to Juan Parra, appellant’s eldest brother with whom appellant lived for eight months, appellant was a good hearted boy growing up. Appellant got along with everyone, and he wasnot violent. Parra testified that their father was deceased and their mother lived in Mexico. Appellant had six brothers and three sisters; some lived in the United States 25 and some lived in Mexico. Parra said that he had not been closeto appellant “lately.” (7RT 1919-1923.) Luis Navarro was appellant’s brother-in-law. Navarro was closeto appellant because appellant lived with him and his wife (appellant’s sister Blanca) for four or five years. Appellant worked for Navarro loading and unloading boxes for a delivery service. Navarro said that appellant was a hard worker, and he credited appellant for helping him get recognition for providing quality service. Navarro had neverseen appellant get violent, _ break the law, or carry a gun during the years appellant lived with Navarro. Navarro had seen appellant use drugs, however. Appellant becamea | “totally different person” when he used drugs; he wasviolent, tense and pushy. (7RT 1923-1929.) Maria Villa, appellant’s cousin and the daughter of Eliseo Villa (ownerof the gun used to murder Deputy Hoenig),testified that appellant lived with her family periodically, and he waslike a brother to her. Villa said appellant was helpful, nice, and respectful. Maria denied seeing appellant with a gun, be violent, associate with gang, or get in trouble with the police. (7RT 1929-1932.) Villa stated she had never witnessed appellant do drugs, but she had seen him underthe influence of drugs, which caused him to be paranoid and scary. According to Villa, appellant’s drug use increased near the time of the murder. (7RT 1932-1933.) Fernando Solano metappellant through appellant’s family, and had been appellant’s close friend for about twelve years. Solano said he had never seen appellant be violent, hit anyone, associate with gang members, or get in trouble with the police. Solano knewthat appellant used methamphetamine and had seen appellant underthe influence. Solano described appellant as erratic, nervous, and violent when he was underthe influence of drugs, but Solano had not seen appellant lash outor get in fights. (7RT 1934-1938.) Solano admitted that appellant wasa “totally 26 different” person and “very paranoid” when he was underthe influence of drugs. (7RT 1940-1941.) Appellant used drugs a lot during the year before the murder. Solanotried to convince appellant to stop using drugs, but appellant respondedthat he did not care and wanted to die. (7RT 1942- 1943.) Appellant had tried drug rehabilitation in the past in Mexico, and stopped using for a while. However, after appellant’s father died, appellant came back to the United States and started using drugs again. (7RT 1943- 1944.) Solanotestified appellant was a nice person. Even though appellant sometimes acted like a “tough guy,” anyone could see that he was faking it. Solano believed that appellant was remorseful about Deputy Hoenig’s murder even though he did not show it, because he may be confused about the event or did not understandit fully. Solano maintained that appellant. wasnot the demon describedin the poem readto the jury by Robert Hoenig. Solano believed the real demon wasthe drugs that appellant used. (7RT 1938-1940.) Martin Parra was appellant’s older brother. Parra lived in Mexico. Parra said he wasclose to appellant when appellant lived in Mexico. Parra had never seen appellant becomeviolent, carry a gun, or use drugs. (7RT 1947-1948.) Parra said appellant was not a delinquent assassin, and blamed the killing on “the dirty stuff that’s being sold here.” (7RT 1948-1949.) Blanca Navarro was appellant’s sister; she was married to Luis Navarro. Blanca had lived with appellant for most of his life. She portrayed appellant as an obedient and thoughtful brother. Navarro said that appellant was loved by his parents, and that their parents taught them the difference between right and wrong. (7RT 1953-1957.) Rosa Delgadillo was appellant’s older sister. She asked the jury to give appellant life imprisonment, and asked the victim’s family for forgiveness. (7RT 1957-1959.) 27 Eliseo Villa was appellant’s uncle who owned the murder weapon. Villa had knownappellant for fifteen years. Appellant had lived with Villa and his wife for a short time before the murder.Villa testified that appellant and his brothers and sisters were humble people. Prior to the murder, Villa had suspected that appellant’s life was not going well because he was having problems at work. Villa advised appellant to behave better and take care of his job. Appellant cried during their conversation. Villa believed that appellant killed Deputy Hoenig because he was underthe influence of drugs. Villa did not think appellant would have committed the crimeif he werein the right frame of mind. (7RT 1959-1962.) ARGUMENT I. THE TRIAL COURT PROPERLY EXCUSED THREE PROSPECTIVE JURORS FOR CAUSE Appellant contendsthe trial court erred under Witherspoon vy. Illinois (1968) 391 U.S. 510 [88 S.Ct. 1770, 20 L.Ed.2d 776] and Wainwrightv. Witt (1985) 469 U.S. 412 [105 S.Ct. 844, 83 L.Ed.2d 841], in improperly excusing for-cause three prospective jurors: (1) prospective Juror No. 4593, (2) prospective Juror No. 5637, and (3) prospective Juror No. 6611.° Appellant claimsthe trial court’s excusals for-cause each ofthe three prospective jurors violated his constitutional right to due processanda fair trial, and constituted per se reversible error. (AOB 39-62.) To the extent appellant raises any state or federal constitutional or statutory issue not squarely grounded in Wainwright, those issues have been waived and are subject to procedural default since appellant failed to raise them in thetrial court. (See People v. Hines (1997) 15 Cal.4th 997, 1035; People v. Holt ° Respondentwill use the same numericalidentification numbers usedat trial to preserve the jurors’ privacy, as provided by California law. (See Code of Civil Procedure, §§ 206 & 237.) 28 (1997) 15 Cal.4th 619, 666-667; People v. Alvarez (1996) 14 Cal.4th 155, 186.) In any event, respondent will demonstrate below that appellant’s contention is meritless since the record contains substantial evidence supporting each of the three for-cause excusals. A. The Applicable Law In Wainwright v. Witt, supra, 469 U.S. 412, the United States Supreme Court held, “The proper standard for determining when a prospective juror may be excluded for cause becauseof his or her views on capital punishment. . . is whether the juror’s views would “prevent or substantially impair the performanceofhis duties as a juror in accordance with his instructions and his oath.” (/d. at p. 424; see People v. Williams (1997) 16 Cal.4th 635, 667; People v. Crittenden (1994) 9 Cal.4th 83, 120- 121; People v. Mincey (1992) 2 Cal.4th 408, 456.) The critical question in each challengeis “whether the juror’s view about capital punishment would prevent or impair the juror’s ability to return a verdict of death in the case before the juror. [Citation.]” (People v. Bradford (1997) 15 Cal.4th 1229, 1318-1319, italics and quotation marks omitted; People v. Hill (1992) 3 Cal.4th 959, 1003.) If a prospective juror provides conflicting or equivocal answersto questions concerning his or her impartiality, the trial court’s determination as to that person’s true state of mind, which may include an evaluation of the juror’s demeanor, is binding on the appellate court. (Wainwright v. Witt, supra, 469 U.S.at pp. 428-429; see People v. Cunningham (2001) 25 Cal.4th 926, 975; People v. Bradford, supra, 15 Cal.4th at p. 1319; People . v. Mayfield (1997) 14 Cal.4th 668, 727; People v. Crittenden, supra, 9 Cal.4th at p. 122; see also Wainwright v. Witt, supra, 469 U.S. at pp. 425- 426.) Morespecifically, [A] trial court’s rulings on motions to exclude for cause are afforded deference on appeal, for “appellate courts recognize 29 that a trial judge who observes and speaks with a prospective juror and hears that person’s responses (noting, among other things, the person’s tone of voice, apparent level of confidence, and demeanor), gleans valuable information that simply does not appear on the record.” [Citation.] (People v. Avila (2006) 38 Cal.4th 491, 529.) The United States Supreme Court recently explained, “Deference to the trial court is appropriate because it is in a position to assess the demeanorofthe venire, and of the individuals who composeit, a factor of critical importance in assessing the attitude and qualifications of potential jurors.” (Uttecht v. Brown (2007) 551 U.S. 1, 9 [127 S.Ct. 2218, 167 L.Ed.2d 1014].) Likewise, a prospective juror who has expressed an unwillingness to impose the death penalty may properly be excused for cause. (People v. Jenkins (2000) 22 Cal.4th 900, 986-987.) Any ambiguities in the record are to be resolved in favor ofthe trial court’s determinations, and the reviewing court determines only whetherthetrial court’s findings are fairly supported by the record. (People v. Holt, supra, 15 Cal.4th at p. 651; People v. Crittenden, supra, 9 Cal.4th at p. 122; People v. Howard (1988) 44 Cal.3d 375, 417-418.) B. The Trial Court Did Not Err Whenit Excused for Cause Three Jurors Who Expressed Reservations About Their Ability to Impose the Death Penalty in the Appropriate Situation Amongthe venire of prospective jurors in appellant’s case were Juror Nos. 4593, 5637, and 6611. Juror No. 4593 Juror No. 4593’s juror questionnaire appears on pages 300 through 303 of the Clerk’s Transcript (Vol. IT). In question numberthree of the questionnaire, which asked, “What are your general feelings about the death penalty,” the juror responded, “Have mix [sic] feeling. Not sure can decide guilty or not guilty because it concerns people’s life.’ (2CT 300.) 30 In question numberten, which asked, “Regardless of your views on the death penalty, would you as a juror, be able to vote for the death penalty on another person if you believed, after hearing all the evidence, that the penalty was appropriate,” the juror answered, “Not sure.” (2CT 302.) Finally, in question numberthirteen, which asked, “Do you have any conscientious objections to the death penalty which you believe might impair yourability to be fair and impartial in a case in which the prosecution is seeking the death penalty,” the juror responded, “Yes.” (2CT 302.) Thevoir dire for Juror No. 4593 appears at pages 222 through 235 of the Reporter’s Transcript (Vol. I). During voir dire, the trial court explainedto this juror that there are two phasesoftrial; the guilt phase and the penalty phase. The court said the jury may neverget to the penalty phase if appellant was found not guilty or guilty of a lesser included offense. The court further explained the process of weighing aggravating and mitigating factors toward reaching a penalty determination. (1RT 224- 225.) The juror indicated he understood the court’s explanations of both the guilt and penalty phases of trial. (IRT 226.) With regard to the juror’s answers on the questionnaire, the court said, ‘‘As I read your answerto the questionnaire, you believe that you would not exercise your right to the option, but rather would not impose death. Am | stating your position correctly?” (1RT 226.) The juror responded, Well, because it’s hard for me, even though I know he killed someone and -- but I -- what’s kind of hard for me,too, is because my judgment-- I can’t put people to death, you know, because my vote, or because my -- you know,even though I hear and, yes, I agree he killed this person, and maybe I agree with -- I heard all the evidence, but my conscience-- still kind of hard for me to, you know,because of my vote, I able to put this person to death. So, that’s -- I think that’s what my biggest feelingis. 31 (IRT 226.) The juror said that his feelings about the death penalty were based onboth his personalbeliefs and religious beliefs.° (IRT 227.) The court said that at some pointin the trial, the juror may haveto look at appellant and say, “Yes, I vote that death should be imposed.” (/bid.) The court askedif the juror would have a difficult time doing that. The juror said his “most honest” answer would that he would have a hard time doing that. (/bid.) Based on these answers, defense counsel askedthe jurorif he could vote for death if appellant was found guilty of killing an officer in the line of duty. The jurorsaid, “If all the factor [sic] really convince me,I do, but I still will feel guilty. Even though I voted. yes, but probably later on I would think because my vote I would cause -- I would cause a person’s death, but I wouldstill vote, yes.” (IRT 228.) The juror agreed with the prosecutor’s statement that he (the juror) wanted to give the “right answer”to the judge, defense counsel, and the prosecutor. However, the prosecutorsaid, “The only real right answeris what you believe inside --[.]” (1RT 229.) The prosecutor went on to explain to the juror that the decision whether or not to impose the death penalty is a difficult for everyone. Based on the juror’s answers to the questions on the questionnaire, the prosecutor believed the juror did not wantto vote to end another person’s life because of his value system and personal beliefs. (LRT 230.) The jurorsaid, “Yes. But I would think it the other way too, because he took -- you know,because wealready voted guilty, and I can feel he took the other person’s life with the -- with no reason, or with the -- whateverthe reasonis, andI still can feel -- I will feel ° In question numberfour ofthe questionnaire, which asked,“Are your views on the death penalty based on religious conviction,” Juror No. 4593 answered, “No.” (2CT 302.) . 32 -- because the other personis already dead, and I feel I need to do some justice too, but --[.]” (ART 231.) The juror expressed some confusion during the prosecutor’s questioning of him about whetherthe factthat appellant would neverbe released from prison wasjustice enough for the juror, and whetherthe juror could impose the death penalty based on certain criteria that the judge will instruct on in the penalty phase. (1RT 232-234.) “But when it comes downto it,” (1RT 234), and based on the juror’s “beliefs, religious and personal moral values,”the prosecutor asked if the juror could imposethe death penalty knowing that he would haveto live with that decision for the rest of his life. (ART 235.) The juror responded: Yes, yes, I will still give you kind oflike an in between answer, becauseright now -- for meright now I havereally mixed feeling about that, because I can see it both side because- - but the otherside is the -- the victim, you know,he died. And maybe because, you know,the causeis -- you know,I really feel sorry, or feel, you know,justice has to be made. But I will consider because myvote -- so,it’s really -- I thought aboutit over weekend,andI really think I still have a mixed feeling right now. So, I probably answerI still cannot make-- probably cannot makea decision. (IRT 235.) The court found “that the juror’s response demonstrates that his views would substantially impair his performance and duties as a jurorin this case, and he would havedifficulty in accordance with the instructions--[.]” Thejuror interrupted the court and said, “Yes.” The court continuedits statement, and excused the juror for cause. (1RT 236.) Applying the abovestandardsto the instantcase, it is clear thetrial court did not err in excusing Juror No. 4593. As demonstrated above,this juror repeatedly equivocated about whether he could impose the death penalty. Significantly, “when it came downtoit,” he repeatedly asserted that it would be difficult for him to put someone to death, that he had 33 “mixed feelings” on the matter, and that he could not make that decision. (IRT 226, 227, 235.) As noted by this Court in People v. Roldan (2005) 35 Cal.4th 646,a juror’s response that he would have a “hard time” voting for the death penalty or that he would find the decision “very difficult” “indicate a degree of equivocation on the juror’s part which, taken into _ account with the juror’s hesitancy, vocal inflection, and demeanor, can justify a trial court’s conclusion regarding the juror’s mentalstate that the juror’s views would ‘prevent or substantially impair the performanceofhis duties as a juror in accordancewith his instructions andhis oath.’” (Jd. at p. 697.) Even though the juror expressed some willingnessto be fair to both sides and vaguely indicated he had not foreclosed the possibility of returning a verdict of either life or death (IRT 228, 231), it appears from the record that the juror’s show ofwillingness to be fair and possibly impose the death penalty was his attempt to give the “right answer’to the court and counsel, andto satisfy them by saying whathe believed they wanted to hear (see 1RT 228, 229). Jurors commonly supply conflicting or equivocal responses to questions directed at their potential bias or incapacity to serve. When such conflicting or equivocal answers are given, the trial court, through its observation of the juror’s demeanoras well as throughits evaluationofthe juror’s verbal responses, is best suited to reach a conclusion regardingthe juror’s actual state of mind. (People v. Hamilton (2009) 45 Cal.4th 863, 890.) Thetrial court here resolved those differences in deciding to excusethis juror for cause. Even though the juror gave some conflicting answers, in the end and after having the weekendto think about it, the juror concededthathestill could not “make a decision.” (1RT 235.) Notably, the juror agreed with the trial court’s finding that “his views would substantially impair his performance and duties as a juror.” (IRT 236.) Thetrial court’s determination as to the prospective juror’strue state 34 of mind,if supported by substantial evidence,as is the case here, is binding on the appellate court. (See People v. Bradford, supra, 15 Cal.4th at p. 1329; People v. Carpenter (1997) 15 Cal.4th 312, 357; People v. Mayfield, supra, 14 Cal.4th at p. 727; People v. Crittenden, supra, 9 Cal.4th at p. 122.) Indeed, the juror’s answerto the questionnaire revealed the juror’s equivocation in the matter. The juror wrote that he had “mix[ed] feelings” about the death penalty. (2CT 300.) He reiterated his “not sure” answer whenasked if he could impose death if all the evidence showed it was appropriate. (2CT 301.) Not surprisingly, the juror marked, “Yes,” when asked if he had any conscientious objection to the death penalty. (bid.) Appellant contends this juror “repeatedly” stated he could vote for the death penalty. (AOB 43.) To the contrary, the juror only stated that there was a possibility that he could vote for the death penalty, and in the end agreed with the court that he would be impairedin his performance and duties as a juror. (IRT 228, 236.) When Juror No. 4593’s statements during voir dire are view in context with his answers on the questionnaire, there is ample evidence to support the trial court’s excusal for cause ofthis th juror since his views on the death penalty would “prevent or substantially impair the performanceof[his] duties as a juror in accordance with [his] instructions and [his] oath.” (Wainwright v. Witt, supra, 469 US.at p. 424; see People v. Barnett (1998) 17 Cal.4th 1044, 1114-1115 [while some answers showed willingness to follow the law and the court’s instruction, other answers furnished substantial evidence of a prospective juror’s inability to consider a death verdict].) Accordingly, the court didnot abuse its discretion in excusing Juror No. 4593 for cause. Juror No. 5637 Juror No. 5637’s juror questionnaire appears on the pages 352 through 355 of the Clerk’s Transcript (Vol. II). In question numberthree, which 35 asked the juror about his generally feeling about the death penalty, the juror responded, ‘Do notbelieve in death penalty.” (2CT 352.) In question numberfour, which asked, . Are you so strongly against the death penalty that no matter what the evidence shows, you would refuse to vote for guilt as to first degree murderorrefuse to find the special circumstances true in order to keep the case from going to the penalty phase where death orlife in prison without the possibility of parole is decided. The juror marked, “Yes.” (2CT 353.) Likewise, in question numbersix, which asked, Are you so strongly against the death penalty that if a jury found a defendant guilty of intentional first degree murder and found a special circumstanceto be true, you would always vote against death, no matter what evidence of aggravation or mitigation mightbe presented at the penalty hearing in the case? The juror again marked, “Yes.” (2CT 353.) In question numberten, which asked if the juror could vote for death if it was the appropriate penalty, based onall the evidence, the juror wrote, “Don’t Know.” (2CT 354.) In question numbertwelve, whichasked, “In the penalty phase would you automatically, in every case, regardless of the evidence, vote forlife in prison without the possibility of parole?” The juror marked, “No.” (/bid.) Likewise, the juror marked, “No,” to question numberthirteen, which asked abouthis ability to be fair and impartial based on “any conscientious objections to the death penalty.” (/bid.) The voir dire for Juror No. 4593 appears at pages 327 through 334 of the Reporter’s Transcript (Vol. I). The trial court questioned the juror about his answersin question numbers three, four, and six. With regard to question numberthree, the juror said that he did not personally believe in the death penalty. When asked further whetherthe juror was saying he would under no circumstances impose the death penalty, the juror 36 answered,“I -- right now I don’t think I would.” (1RT 328.) The court then asked whether the juror could set aside his personal belief and impose the death penalty if the evidence showedit wasjustified, the juror said, “I think I could, yes, your honor.” (/bid.) Given a hypothetical where appellant was found guilty of murdering police officer, and the prosecution presented evidencethat justified the death penalty, the court asked the juror whether he could imposethe death penalty. The jurorsaid, “I think I could, yes, but although I don’t really believe in the death penalty.” (1RT 329.) The juror said that for him to impose the death penalty, the scenario would have to be “quite bad.” (1RT 329-330.) The court further clarified the hypothetical, “Well, what about killing a police officer sitting in a police car wearing his uniform, andthere is no reasonfor killing him?” The juror answered,“I guess I could yeah.” (1RT 330.) The court commented that the juror’s answer “I guess I could” was“alittle equivocal.” (/bid.) The court repeated the hypothetical and again askedif the juror could impose the death penalty. This time the juror answered, “Yes, I could.” The juror also said he could also imposelife without the possibility of parole. (/bid.) The court reviewedthe juror’s answer to question number four, and asked if the juror’s if his answer wasthe sameat that point in time. The juror said, “I guess I could change that answer to no.” (/bid.) The juror said he could also change his answer to question numbersix. (IRT 331.) Thereafter, defense counsel questionedthe juror briefly, and asked the juror whether he could consider the two penalty options, includinglife in prison without the possibility of parole. The juror said that he could consider both types of penalties. (LRT 331-332.) After reviewing the juror’s answers to the questionnaire, the prosecutor observedthat the juror was being sincere and honest when he answered the questions on the questionnaire. That the juror wasbasically conveying the belief that he “couldn’t pull the switch.” The prosecutor 37 asked the jurorif “that summed up[his] feelings.” The juror said, “TI think so, sir. Yes.” (LRT 332-333.) The prosecutor then asked, “And whenthe Judgeis asking the questions, everyone says they are fair and, yeah, both sides but deep downinside, you couldn’t do it, could you?” The juror responded,“I guess I could doit, yeah.” (1RT 333.) In responseto the prosecutor’s next question, the juror expressed that he would rather not impose the death penalty. U/bid.) When asked by the prosecutor whether he wasthe right juror to sit on a capital case in light of his answers on the questionnaire and the questions asked of him during voir dire, the juror responded, “No.” (1RT 334.) The prosecutor challenged this juror for cause. The court excused the Juror, finding that his “responses do demonstrate his views, would substantially impair his performance and duties as a juror in accordance with his oath and with his instructions by the court.” (IRT 334.) Here, substantial evidence was presented during the voir dire to support the trial court’s ruling excusing Juror No. 5637 for cause. In particular, the juror did not believe in capital punishment. (2CT 352.) Significantly, as expressed in his questionnaire, and reaffirmed to the prosecutor, he was so against capital punishment that he would “refuse to vote for guilt . . .1n order to keep the case from going to the penalty phase . ..” QCT 353; IRT 332-333.) Furthermore, he expressed the inclination to vote for life without the possibility of parole, regardless of what the evidence of aggravation and mitigation may show. (/bid.) The juror maintained his position when asked by the court whether he would impose the death penalty “under no circumstances”-- the jurorsaid, “I -- right now I don’t think I would.” (1RT 328.) Even though the juror suggested the remote possibility that he could impose the death penaltyif the evidencejustified the penalty in “bad” cases, the converse wasalso possible, that his strong feelings against the 38 death penalty could not be swayed. (See People v. Cain (1995) 10 Cal.4th 1, 60-61 [the trial court properly excused a prospective juror whose equivocal responses could have meant merely that she was unable to predict what she would doifin a position to vote for death because they also substantially supported the contrary conclusion that, despite her desire to have an open mind,her emotional leaning against death was so strong that she probably could notvote for it even if she thought the evidence justified it].) Indeed, the juror reiterated that he “did not really believe in the death penalty.” (1RT 329.) Even when the court-presented the juror with a hypothetical based on the facts of this case, the juror express equivocation; the court noted the juror’s equivocal answer. (1RT 330.) Although the juror later declared a theoretical possibility that he could vote for the death penalty, the court legitimately could infer from the strength of the juror’s views and subsequent contrary responses to the prosecutor, and his equivocal statements, that he was substantially impaired in his ability to perform his duties as a juror. The mere theoretical possibility that a juror _ mightbe able to reach a verdict of death in some case does not necessarily render the dismissal of the juror an abuse of discretion. (People v. Wharton (1991) 53 Cal.3d 522, 588-589.) The record clearly showsthat the juror equivocated to some extent, but he obviously favored a life sentence, and his answers on the questionnaire suggested he would notvote for death. Most significantly, the juror himself opined that he was not the right juror to sit on a capital case. (IRT 334.) Contrary to appellant’s assertion that the juror’s own opinion was“quite irrelevant” (AOB 53-54), the fact of the matteris that his opinion honestly shed light on his true ability to perform his duties as a juror. The bottom line is that even after repeatedly expressing the equivocal view that he “thought” he “could” imposea death verdict, the juror concededhis view that he could not “pull the switch” and would 39 rather not impose the death penalty, and was not “the right juror”to sit on a capital case. (1RT 333-334.) The record presents sufficient and ample evidence to support the trial court’s excusal for cause of this prospective juror since his views concerning capital punishment would “prevent or substantially impair the performance of[his] duties as a juror in accordance with [his] instructions and [his] oath.” (Wainwright v. Witt, supra, 469 U.S. at p. 424.) Neither the court nor the prosecutor did anything to “taint” the jury selection process as appellant suggests. (AOB 53.)’ The juror’s own written responses as well as his statements during voir dire spoke volumes ' of his inability to sit a juror in this case. Accordingly, the court did not abuseits discretion in excusing Juror No. 5637 for cause. Juror No. 6611 Juror No. 6611’s juror questionnaire appears on the pages 578 through 581 of the Clerk’s Transcript (Vol. IV). This juror answered,“Neutral,” to question numberthree which asked him abouthis general feelings about the death penalty. (4CT 578.) During voir dire, the court asked the juror to explain what he meant by, “Neutral,” in question numberthree of the questionnaire. (2RT 497.) The juror answered,“I really haven’t -- I don’t know. I’ve --[.]” (Ubid.) The court interrupted the juror to clarify the question, and asked thatif appellant was found guilty of the charged crime, and basedonall the evidence, could the juror impose death. The juror said, “I think so, yeah.” (/bid.) The juror further explainedthat he did not have any religious convictions that prevented him from imposing the death penalty. The court ’ Appellant does not cite any authority or tender an analysis why asking a juror abouthis ability “to pull the switch”is error. The claim is therefore waived. (People v. Gray (2005) 37 Cal.4th 168, 198.) The question wasalso entirely proper inasmuchasit underscore the magnitude of the juror’s responsibility. 40 again askedif the juror could represent that he could imposethe death penalty, and the juror said, “I believe so.” (Jbid.) When asked bythe court whetherthe juror had anyhesitation, the juror said his answer was, “No,”. but this was a “big deal.” (2RT 497-498.) Defense counsel was given an opportunity to question the juror. Counsel asked the jurorif he had anyfriends or family that was in law enforcement. The juror said that he did not. (2RT 498.) When asked by counsel if the juror could imposethe death penalty if appellant was found guilty of killing a police officer and the evidence showedthe appropriate penalty was death, the juror answered,“I think so.” (Jbid.) Counsel pressed for a more definite answer by asking, “When you say you think so, the prosecution and I, we need 12 jurors up there and we need 12 jurorsthat . could vote either for death or life without the possibility of parole. We can’t haveit just one-sided. Okay?” ([bid.) “So do you think that if you thought it was appropriate, could you vote death?” The jurorsaid, “I think I -- yes, I think.” Counsel notedthat the juror was “sort of shaking [his] head,” andtold the juror that it wasfine if the juror could notvote for death. He would just be let go. (2RT 499.) The juror respondedto that commentby saying, “I think I could do what would be called upon me. It’s just this whole thing, I’ve never been here before, andthis is a big case so I’m little nervous.” (bid.) Counseltold the juror that he was one ofthe few jurors who wascalled upon to decidethis case, it was important for the parties to know whetherthe juror could vote for death -- “‘yes or no.” The juror said, “Yes.” The juror gave the same answerto counsel’s question about his ability to impose life without the possibility of parole. (Jbid.) The prosecutor then questioned the juror. The prosecutorfirst explained that this case “wasa veryserious case. It’s the most serious case we deal with.” (2RT 500.) The prosecutor then asked the juror, “If the question were onthe ballot last week, should California have a death 4l penalty, how would you vote.” (/bid.) In the same equivocal mannerthat had been commontothis juror’s responses,hesaid, “I kindof feel like P’'d probably vote yes becauseit does seem like there are someoffenses that the state should have reserved for higher penalty, I guess.” (Wbid.) The prosecutor went on to explain that California put people to death by lethal injection. He further explained that the parties had to have “‘a fair opportunity to get the result [they] want.” The prosecutor expressed the concern that the juror’s answers “don’t guarantee [he’s] going to vote for either side,” and reiterated that the parties “need[ed] to have a fair chance.” (ibid.) The prosecutor continued, And assuming that we get to the penalty phase,I -- as the representative of this community -- need to know,can these jurors vote death. And whatit really means is because we have a working death penalty now, that your vote meansthat he will be put to death in San Quintin by lethal injection. And essentially you voting death is like you pushing the button. And with your hesitancy here, listening to your answers from the judge and [defense counsel], I have a question in my mind, basically can you pull the trigger? Can you have your finger on the button, say I condemn you to death? And if you can’t, that’s perfectly fine because there’s many cases you'd be a fine juror on, but not this one. So -- and only you know inside. It’s obviously a weighty question. It’s the most serious question we ask membersofthe public in this country to deal with. And there is a numberofpeople that say I support the death penalty, we should haveit on the books but I can’t make that decision. Are youin that group? (2RT 500-501.) There was no response from the juror. (2RT 501.) At that moment, the court reassured the juror that “there is no right or wrong answer. Weonly want to know what yourtrue beliefs are.” (2RT 501.) The juror said, “Yeah,” before the court added, “And I indicated also I want you to stand by whatever yourbeliefs are, so don’t try to satisfy us. 42 Youjust tell us what yourbelief is.” (/bid.) The juror remarked that he had | never been in this situation before. (/bid.) He further explained, “I feel that I could weigh, you know,everything brought upon me, but, you know, you just never know until you get there. That’s kind of how I feel on some things here. I -- I don’t feel pre-dis- -- predisposition, you know,either way, but -- but you want to know if I -- if I would be able to.” (2RT 502.) The prosecutor explained that there was only onepolice officer victim in this case, unlike the Oklahoma City bombing where there were 168 victims killed. The prosecutor again reassured the juror that it was fine if he could not impose the death penalty. (2RT 502.) The juror did not respond, and the court noted that there was “substantial silence.” The court asked if the juror was “mulling over in [his] mind whetheror not [he] could or could not impose the death penalty” and if “at this point in time[the juror] still haven’t reached a conclusion.” (/bid.) The juror responded, “True. [’m kind of hitting a blank just with --[.]” (Wobid.) At that point, the court found “that the juror’s response does demonstrate that his views would substantially impair his duties as a juror in accordance with his oath and instruction by the court. The court excused the juror. (2RT 502-503.) Here, substantial evidence was presented during voir dire to support the trial court’s ruling excusing Juror No. 6611 for cause. Even thoughthis juror’s answers on his questionnaire suggested he could befair to both sides and had not foreclosed the possibility of returning a verdict of either death or life without the possibility of parole, the record shows that his demeanor and attitude as observedbythe trial court revealed more about his opinion regarding the death penalty than what he had expressedin the questionnaire. During voir dire, most ofthe juror’s answers showed equivocation-- “T don’t know” (2RT 497), “I think so” Ubid, 2RT 498), “I believe so” (2RT 497), “No, but...” (2RT 497-498), “I think I -- yes, I think” (2RT 43 499), “... yes... I guess” (2RT 500). It is not clear from the record how the juror appeared to the court and counsel as he answered the question posed to him -- whether his demeanorsuggested sincerity, dissimulation or merely nervousness, But what is apparent from the recordis the juror’s equivocation. This juror’s answers were so equivocal that defense counsel had to press for a more definite answer-- “yes or no,” and even noted that while the juror said he “thinks” he could impose the death penalty, he was shaking his head. (2RT 498-499.) The prosecutor likewise noted the juror’s “hesitance.” (2RT 501.) The juror’s equivocation prompted both defense counsel and the prosecutorto reassure the juror that it was “fine”if the juror could not vote for death, and the court addedthat there was “no right or wrong answer.” (2RT 499, 501.) | Aside from his equivocal answers, the juror remainedsilent on two occasions when questionedbythe prosecutor. (2RT 501-502.) Appellant speculates from the cold record that the juror’s silence was because he “might have been wondering why no one seemed to be accepting his statements that he could vote forlife or for death, once the evidence had been presented to him.” (AOB 60.) That was unlikely the case given the trial court’s observation that the juror was probably “mulling overin [his] mind whetheror not [he] could or could not impose the death penalty” and at that “point in time [the juror] still haven’t reached a conclusion.” (2RT 502.) Indeed, at the end of voir dire, the juror specifically said it was “true” that he wasstill “mulling over” his ability to impose the death penalty and that he had “kind of hit a blank... .” (/bid.) Thetrial court was in the best position to assess the juror’s state of mind based onhis tentative responses, his demeanor,his vocal inflection, and other nonverbal cues. As this Court has explained in manydecisions, “Tt}here is no requirementthat a prospective juror’s bias against the death penalty be proven with unmistakable clarity. [Citations.] Rather, it is 44 sufficient that thetrial judgeis left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law in the case before the juror.” (People v. Abilez (2007) 41 Cal.4th 472, 497-498, internal quotation marks omitted.) “[A]ppellate courts recognize that a trial judge who observes and speaks with a prospective juror and hears that person’s responses (noting, among other things, the person’s tone of voice, apparent level of confidence, and demeanor) gleans valuable information that simply does not appear on the record.” (People v. Stewart (2004) 33 Cal.4th 425, 451.) Thus, the reviewing court should deferto the trial court on the essentially factual question of Juror No. 6611’s true state of mind. (People v. Lewis (2008) 43 Cal.4th 415, 483.) It is clear from the record that each of the three prospective jurors was extensively questioned during voir dire about their views on the death penalty. The record demonstrates that the court properly excused Jurors Nos. 4593, 5637, and 6611, based on its impression that they were unable to faithfully and impartially apply the law, and no violation of appellant’s right to an impartial jury occurred. Il. THE COMPUTER ANIMATION WAS PROPERLY ADMITTED AS DEMONSTRATIVE EVIDENCE Appellantasserts the trial court erred in admitting a computer animation depicting the sequence of shots and the locations from which the shots were fired. Specifically, he argues the animation did not fairly and accurately depict the evidencein this case. (AOB 63-77.) Appellant’s argument must be rejected. The one animation that was playedto the jury was short, non-dramatic, and a fair and accurate depiction of the evidence, ' the experts’ opinion, the prosecution’s theory of the case. Therefore, the trial court did not abuseits discretion in admitting the computer animation as a demonstrative exhibit to assist the jury with understanding expert testimony. 45 A. Procedural Background Priorto trial, the trial court held a hearing pursuant to Evidence Code section 402 with respect to the prosecutor’s use of a computer animation that depicted the sequence of gunshots that ultimately killed Deputy Hoenig. The prosecutor proposedto call the creators of the computer animation, Parris Ward and Dr. Carley Ward,to testify to the procedure used in creating the animation and its compliance with the requirements and guidelines set forth in People v. Hood (1997) 53 Cal.App.4th 965. (4RT 1024-1028.) The prosecutor explained the animation would simply show the prosecution’s theory regarding the orderof the shots based on the physical evidence and expert opinions, but the exact order could not “be conclusively proven.” The prosecutor recounted the detail of the animation as follows: Shot number | “came from the north side of the street, in the approximate location of where the bicycle was found.” (4RT 1027.) More specifically, shot number| came from therightrear of the radio car, went through the right rear window,throughthe steel cage separating the front seat from the back seat, over the top of the seat, passed through the deputy’s right hand, which wasonthe gearshift lever in the approximate position of where it would be if you are putting a car -- shifting an automatic transmission, which is whathis Crown Victoria was, into park. The bullet exited his hand, approximately the middle knuckle of the right hand where the -- the bottom knuckle wherethe fingerjoins [{]] [a]nd then went throughthe top of the dash, then into the windshield. (4RT 1027-1028.) Shot numbers 2,3, and 4,“ struckDeputy Hoenig,[and] came from the driver’s side of his radio car, while the shooter was in the street. [J] Shots 2, 3, and 4 came from the left side of his car. And in the animation shot 2 is going throughhisleft leg, justabove the ankle. Shot 3 enters his uppertorso, just above the top ofhis bulletproofvest, slightly below the neck. And shot 4 impacted the lower right rear quadrantof his 46 bulletproof vest, basically a shot in the back which wasstopped by the vest.” (4RT 1027-1028.) Finally, shot numbers “5, 6 and 7 came from a westward direction, shooting back towards the east, which would be from the front of the patrol car.” (4RT 1028.) The prosecutor stated he would makeclearto the jury “that the order of the shots between 2, 3 and 4 could have been different, as well as [shot numbers] 5, 6 and 7[.]” He also said the shot sequence shownon the animation was“the best opinions based uponall of the physical evidence and expert opinion at the scene.” The prosecutor said he would makethat fact clear to the jury, and suggested the court instruct the jury with a “Hood instruction.” (4RT 1028-1029.) Defense counsel objected to the admission of the animation, arguing the animation wasspeculative as to timing and order of shot numbers 2 through 7, as well as the location of the shooter whenhefired those shots. (4RT 1030.) Testimony of Parris Ward Parris Ward worked for Biodynamics Engineering as a computer graphics and animation specialist. (4RT 1032.) Mr. Parris’ training and experience included taking numerousclasses in computer science and working as a professional photographer. By the time of the hearing, Mr. Ward had developed approximately 30 animations and simulations of various accidents scenes, and had twicetestified in court as an expert in computer animation and reconstruction. Mr. Ward also had a law degree from Pepperdine University Law School and a degree in photo journalism. (4RT 1032-1033.) In connection with this case, Mr. Ward developed a computer animation based on his review ofthe police reports, coroner’s report, coroner’s photographs, crime scene photos; the measurements he personally obtained from the crime scene in April 1998; his examination of Deputy Hoenig’s patrol car; and his consultation with Dr. Ward and Dr. 47 Carpenter(the coroner). (4RT. 1033-1038, 1041-1042, 1044-1046, 1048- 1051.) Mr. Ward explained that at the crime scene, he used different reference points on the street to help him determine the placement of evidence such as Deputy Hoenig’s patrol car and the expendedbullets. (4RT 1038-1040, 1043-1044.) Mr. Ward used a popular surveyor’s instrumentto take precise measures (between one-hundredth of a foot and one-thousandths of a foot) of the crime scene, including the location of the bicycle. (4RT 1041-1043, 1047.) Mr.Ward measured variousparts of Deputy Hoenig’s patrol car by hand as well as with the surveyor’s instrument. (4RT 1045-1046.) Additionally, Mr. Ward hired a professional digitizing companyto digitally create the same modelpatrol car for use in the animation. The model was similar to Deputy Hoenig’s patrol car “to a very high degree of precision,” including the location ofthe gear shift lever and other parts of the car. (4RT 1051.) | | The final animation video showeda series of gunshots from different positions based onall the evidence and expert opinions. (4RT 1052.) Mr. Ward explained the animation showed shaded gray areas to indicate the approximate location from which the shots werefired, rather than specific locations from which the shots were fired because shell casings bounce and roll around. (4RT 1055-1056.) For example, the three shots that were fired in proximity to Deputy Hoenig as he wasexiting the patrol car (shot numbers 2, 3, and 4) had about an 80 degree radius that was defined by the car door andthe caritself. For these shots to make contact with Deputy Hoenig, they had to have been fired within a certain range. Furthermore, the area placementof shot numbers 2, 3, and 4 were based on three shell casings that were found within the area of the shots, expert opinion with regard to Deputy Hoenig’s body positions, and the trajectory of the bullet woundsto Deputy Hoenig’s leg, chest, and back. (4RT 1028, 1055.) The entirety of the animation showed “three principal areas where the shots 48 [were] fired” -- the shooter fired one shot near the bicycle, a set of shots near the open doorofthe patrol car, and a final set of shots at the west end of the street. (4RT 1056.) Mr. Ward stated the animation was not intended to be a simulation of what happened, or to show the exact location of the shots. Rather, it was intendedto be anillustration of the approximate area from which the shots were fired based on the evidence and expert opinion. (4RT 1052, 1061.) Testimony of Dr. Carley Ward Dr. Carley Ward was a biomechanical engineer, and she also worked at Biodynamics Engineering with her son, Parris Ward. (4RT 1066, 1070.) Dr. Ward holds a bachelor’s degree in mechanical engineering, a master’s degree in engineering mechanics, and a Ph.D. in biomechanics and dynamics. (4RT 1067.) Her training and experience included work with the Los Angeles County Coroner in biomechanical evaluations and autopsies to determining the cause of death. (4RT 1067-1068.) Dr. Ward had testified in court as a biomechanics expert about 350 times;fifteen of those times involved testimony about body positions and gunshots. (4RT 1069.) In relation to this case, Dr. Ward reviewed the coroner’s report, coroner’s photographs and measurements, crime scene photographs, and the measurements taken by Mr. Ward around Deputy Hoenig’s patrol car. Dr. Ward’s analysis in this case and her contribution to the computer animation waslimited to the shots around Deputy Hoenig, more specifically shot numbers | through 4. (4RT 1070-1071.) Based on the coroner’s photographs and measurements, and bullet damage to Deputy Hoenig’s pant leg, Dr. Ward theorized that Deputy Hoenig’s leg was bent whenhe sustained the bullet woundto his leg. (4RT 1071.) With regard to the fatal shot to Deputy Hoenig’s chest, Dr. Ward determined that Deputy Hoenig waseither bent over or kneeling on his knees when he sustained 49 that wound. Dr. Ward based her opinion onthe locations of the bullet entry and exit wounds. Dr. Ward opinedthe shooter could not have been eight to ten feet away from Deputy Hoenig whenhefired the fatal bullet because the bullet trajectory was in a downward position. From that particular distance, the shooter would have hadto be elevated about twostories to inflict that wound. (4RT 1073-1075.) Like Mr. Ward, Dr. Ward also explained the animation wasintended to show the generalposition of the shooter, not his exact position. (4RT 1075.) Trial Court Ruling After considering the testimony of Mr. Ward and Dr. Ward,as well as defense counsel’s objection, the court found the computer animation was relevant, and that the prosecutor hadlaid sufficient foundation for its admission. The court explained the animation would assist the jury in understanding “what transpired based upon the statements of the various experts|.]” In exercising its discretion under Evidence Code section 352, the court found the probative value of the evidence outweighed any prejudicial effect. The court indicated it would instruct the jurors pursuant to Hood before showing them the computer animation. (4RT 1080.) Jury’s Viewing of Computer Animation Prior to playing the animation, the court instructed the jury as follows: What you’re going to see is an animation based on a compilation of different expert opinions. This is similar to the expert using charts or diagrams to demonstrate their respective opinion. This is not a film of what actually occurred or an exact re-creation. It is only an aid to giving you a view asto the prosecution version of the events based upon-particular viewpoints and based uponinterpretation of the evidence. (6RT 1572-1573.) The computer animation (People’s Exh. No. 1) was played for the jury during the testimony of Mr. Ward (6RT 1573) and again during Dr. Ward’s testimony. Dr. Ward paused the video throughouthertestimonyto explain 50 her opinion and/or theory with regard to the specific woundssustained by Deputy Hoenig. (6RT 1598-1610.) B. The Computer Animation was Properly Admitted to Assist the Jury with Expert Testimony Appellant asserts that People v. Hood, supra, 53 Cal.App.4th 965,is | not applicable to this case. Appellant’s main complaint about the computer animation here and belowis that it did not fairly and accurately represent the shot sequence and/or the shooter’s position whenhefired the shots. (AOB 66-76.) Although the holding ofHoodis not directly applicable,it’s reasoning with regard to computer animation provides guidance on the view of computer animation as demonstrative aids. Hood’s reasoning1s consistent with case authorities in jurisdictions that have addressedthe issue. These jurisdictions uniformly hold that computer animations are admissible as demonstrative aids to enhance the jury’s understanding of testimony. There is no reason for this Court to reject the reasoning of Hood. In Hood, the defendant was charged with premeditated and deliberate murder. Thefirst trial resulted in a hung jury. The defendant was convicted as charged after a second trial. (People v. Hood, supra, 53 Cal.App.4th at p. 967.) Before thefirst trial, the prosecution soughtto introduce a computer animation that depicted the shooting based on information from the defendant’s secretary, the measurements taken by a detective from the crimescene, the pathologist’s reports and opinions, and the reports and opinions ofballistics and gunshot residue experts. The defense opposed admission of the animation, arguing among other things that computer animation had notgained scientific acceptance under People v. Kelly (1976) 17 Cal.3d 24, necessary for admissibility. The trial court permitted the prosecutor to introduce the animation, finding that it was nothing morethananillustrative exhibit similar to drawings by an expert, 51 and it was not evidencein and ofitself. (People v. Hood, supra, 53 Cal.App.4th at p. 968.) Both parties ultimately introduced computer animation of the shooting during the first trial. Prior to the secondtrial, the defense prepared a new computer animation becauseit had concludedthe first animation was not as accurate as it could be. Nevertheless, the defendant objected to the prosecutor’s use of its computer animation on the basis of foundation. The trial court overruled the objection, finding that both computer animations (prosecution and defense) had adequate foundation. (People v. Hood, supra, 53 Cal.App.4th at p. 968.) | Before the prosecutor’s animation wasplayed to the jury, the court instructed the jurors that the animations were based on a compilation of opinions and designedto assist testimony similar to charts, diagrams, and drawings. They were not intended to show what actually happenedor to recreation of “every detail or every event or every movement.” Rather, they were “only an aid to giving an overall view ofa particular version of the events, based on particular viewpoints or particular interpretations of the evidence.” (People v. Hood, supra, 53 Cal.App.4th at p. 968.) On appeal, the defendant claimed the prosecution’s computer animation was erroneously admitted becauseit did not meet the requirements of Kelly. (People v. Hood, supra, 53 Cal.App.4th at pp. 969- 970.) The defendant also claimed the animation invaded the province of the jury on the ultimate issue of how the killing occurred, and lacked foundationasit wasbased on “‘a numberoffactors, including the reactions and stats [sic] of mind of two people underconditions of extreme stress, for which there simply was no clear evidence. [The computer expert who prepared the prosecution's animation] cumulated assumptions(styled as ‘expert’ inferences) together to create an overall scenario that became remote from the necessary evidentiary foundation. [{]] Even the prosecution 52 witnesses admitted other explanations of the proven facts were possible.... [§]] This re-enactment wasalso based on inadmissible speculation regarding the position and posture of [the victim] at the time of the shots.... [{] ... [T]he resulting construct improperly sought to demonstrate [Hood]’s purported _Intent by portraying his actions in conformity with the prosecution's mental state theory.” (Id. at p. 970, alterations in original.) The Court of Appeal rejected the defendant’s Kelly claim, finding the computer animation was tantamountto drawingsto illustrate testimony. The Court of Appeal viewed the animation as “a mechanized version of what a human animator does when he or she draws each frameofactivity, based upon information supplied by experts, then fans through the frames, making the characters drawn appear to be moving.” (Ud. at p. 969.) Therefore, it concluded, “there was no Kelly issue as to the functioning of the computer in creating the animations.” (Jd. at p. 969.) With regard to the other claims, the Court of Appeal found the defendant had waived them ashefailed to assert them inthetrial court. (/d. at pp. 970-971.) Although the Hood opinion did not address the foundational requirements for the admission of computer animation, the Court of Appeal’s reasoning that computer animations are nothing more than demonstrative aids to testimony is sound. Jurisdictions viewing computer animation as merely illustrating the expert witness’ testimony require only that the animation meetthe rules of admissibility for demonstrative evidence. A computer animation doesnot need to be exact in every detail (State v. Harvey (La. App. 2 Cir. 1995) 649 So.2d 783, 788), and courts generally have allowed the admission of a computer animationifit is _® “Demonstrative evidence”is that which is “tendered for the purpose of rendering other evidence more comprehensible to the trier of fact.” (2 McCormick on Evidence § 212 (John W.Stronget al. eds., Sth ed.1999).) 53 authenticated by testimony of a witness with personal knowledge ofthe content of the animation, upon a showingthatit is a fair and accurate representation of whatit is purports to depict, and that it will help to illustrate the expert’s testimony given in the case. (See State v. Sayles (lowa 2003) 662 N.W.2d1, 10 [a prosecution’s expert witness had knowledge of content of shaken infant syndrome animation and could testify that it correctly and adequately portrayed the facts that would illustrate her testimony); Hinkle v. City ofClarksburg (4th Cir. 1996) 81 F.3d 416, 424-425 [holding that a computer animation of events at issue in trial is not unduly prejudicialif it is sufficiently close to the actual events and is not confused by the jury for the real life events themselves); People v. Cauley (Colo. App. 2001) 32 P.3d 602, 607 (holding that, “[a] computer animation is admissible as demonstrative evidenceif the proponentof the video proves thatit: 1) is authentic ...; 2) is relevant ...; 3) is a fair and accurate representation of the evidence to whichit relates; and 4) has a probative value that is not substantially outweighed by the dangerof unfair prejudice... .”); Clark v. Cantrell (S.C. 2000) 339 S.C. 369, 386 (“[A] party may authenticate a video animation by offering testimony from a witness familiar with the preparation of the animation and the data on whichitis based... [including] the testimony of the expert who prepared the underlying data and the computer technician who usedthat data to create it.]; Bledsoe v. Salt River Valley Water Users’ Assoc. (Ariz. App. 1994). 179 Ariz. 469, 472 [the animation’s proponent must show the computer simulation fairly and accurately depicts whatit represents]; State v. Farner (Tenn. 2001) 66 S.W.3d 188, 209 [to be admissible, a computer-generated animation must be relevant and a fair and accurate depiction of the eventit purports to portray]; People v. Cauley (Colo. App. 2001) 32 P.3d 602, 607 [a computer animation is admissible as demonstrative evidenceif the proponentof the video provesthatit is: 1) authentic, 2) relevant, 3) a fair 54 and accurate representation of the evidence to whichit relates, and 4) has a probative value that is not substantially outweighed by the danger of unfair prejudice]; Cleveland v. Bryant (Ga. App. 1999) 512 S.E.2d 360, 362 [computer animation which merely illustrates a witness’ testimonyis admissibleifit is a fair and accurate representation of the scene soughtto be depicted].) | In Harris v. State (Oka. Crim. App. 2000) 13 P.3d 489,a case relied upon by appellant (AOB 70-71), an expert witness for the prosecution used in his testimony a computer animation ofthe trajectory of a bullet passing through the victim’s body. The Court of Appeal concluded the video and the computer-generated animation were “properly categorized as. illustrative or demonstrative aids used to explain the expert’s testimony, because they merely give visual meaning anddefinition to the testimony.” (/d.at p. 495.) The court offered the following guidelines for trial courts to use when deciding whether a computer animation should be permitted: In order for a video or computer crime scene reenactment to be seen by a jury,as an aid to illustrate an experts [sic] witness’ testimony,the [trial] court should require (1) that it be authenticated-the trial court should determinethat it is a correct representation of the object portrayed,or that it is a fair and accurate representation of the evidence to whichit relates, (2) that it is relevant, and (3) that its probative value is not “substantially outweighed by the dangerof unfair prejudice, confusion of the issues, misleading the jury, undue delay, needless presentation of cumulative evidence, or unfair and harmful surprise.” [Citation.] (bid.) The court further held the trial court should instruct the jury at the time the animation is shownthat “the exhibition represents only a re- creation of the proponent’s version of the event; that it should in no way be viewed as an actual recreation of the crime, andlike all evidence, it may be accepted or rejected in whole orin part.” (/bid.) 55 A trial court must also ensure the opposing party is given the opportunity before trial to examine the animation. (Harris v. State, supra, 13 P.3d at p. 495.) The court noted that “expert testimony can be very confusing” and concluded computer animations could clear “up the confusion and ma[k]e the expert’s testimony easier to understand.” (dd. at p. 496.) In this case,the trial court did not abuseits discretion in admitting the computer animation because the court conducted a careful and thorough review similar to that described in Harris prior to admitting it. The court ensured that the above admissibility requirements were met and then gave the jury an appropriate limiting instruction. Asto the first requirement, during the Evidence Codesection 402 hearing, the prosecutor stated he intended to use the computer animation, which was prepared by Mr. Ward and Dr. Ward to show the sequence of shots that were fired by the shooter in the killing of Deputy Hoenig. The prosecutor represented that the animation would show shot number1 “came from the north side of the street, in the approximate location of where the bicycle was found.” (4RT 1027.) More specifically, the prosecutor stated that he believed shot number1 camefrom the right rear of the radio car, went through the right rear window,through the steel cage separating the front seat from the back seat, over the top of the seat, passed through the deputy’s right hand, which wason the gear shift lever in the approximate position of where it would be if you are putting a car -- shifting an automatic transmission, which is whathis Crown Victoria was, into park. The bullet exited his hand, approximately the middle knuckle of the right hand wherethe -- the bottom knuckle wherethe finger joins [§] [a]nd then went through the top of the dash, then into the windshield. (4RT 1027-1028.) Further, the prosecutor believed shot numbers 2, 3, and 4 3 56 actually struck Deputy Hoenig, {and] came from the driver’s side of his radio car, while the shooter wasin the street. [{] Shots 2, 3, and 4 came from the left side of his car. And in the animation shot 2 is going throughhisleft leg, just above the ankle. Shot 3 enters his upper torso, just above the top ofhis bulletproofvest, slightly below the neck. And shot 4 impacted the lower right rear quadrant of his bulletproof vest, basically a shot in the back which wasstoppedbythe vest. (4RT 1027-1028.) Finally, the prosecutor believed that shot numbers“5, 6 and 7 came from a westward direction, shooting back towards theeast, which would be from the front of the patrol car.” (4RT 1028.) The prosecutor clearly explained the order of the shots shown onthe animation was the prosecutor’s theory of the shot sequence,“but it cannot be conclusively proven.” (Jbid.) The prosecutorstated he would makeclear to the jury “that the order of the shots between 2, 3 and 4 could have been different, as well as [shot numbers] 5, 6 and 7[.]” He asserted the shot sequence shown on the animation was “the best opinions based uponall of - the physical evidence and expert opinion at the scene.” (4RT 1028-1029.) Moreover, the prosecutorcalled the creators of the computer animation, Mr. Ward and Dr. Ward,to testify at the hearing to authenticate the animation. Mr. Wardtestified in creating the animation, he relied on various report and photographs, spent a day at the crime scene taking precise measurements and reconstructing evidence, consulted with other experts, and personally examined Deputy Hoenig’s patrol car. (4RT 1033- 1051.) He explained that based on the evidence he reviewedandthe opinion of other experts, the animation depicted shaded gray areas to show the general location of the shooter rather than the exact location of the shooter. (41055-1056.) For example, the three shots that were fired in proximity to Deputy Hoenig as he wasexiting the patrol car (shot numbers 2,3, and 4) had about an 80 degree radius that was defined by the car door and the caritself. For these shots to make contact with Deputy Hoenig, 57 they had to have beenfired within a certain range. Furthermore,the area placement of shot numbers 2, 3, and 4 were based onthree shell casings that were found within the area of the shots, expert opinion with regard to Deputy Hoenig’s bodypositions, and the trajectory of the bullet woundsto Deputy Hoenig’s leg, chest, and back. (RT 1028, 1055.) The entirety of the animation showed “three principal areas where the shots [were] fired”-- the shooter fired one shot nearthe bicycle, a set of shots near the open door of the patrol car, and a final set of shots at the west end of the street. (4RT 1056.) Dr. Wardtestified that with regard to her work in creating the animation, she reviewedthe coroner’s report, photographs, and measurements, as well as crime scene photographs, and the measurements taken by Mr. Ward around Deputy Hoenig’s patrol car. Dr. Ward’s specified her contribution to the computer animation was limited to shot numbers | through 4. (4RT 1070-1071.) Based on the evidence that she reviewed, Dr. Ward opined that Deputy Hoenig’s leg was bent when he sustained the bullet woundto his leg, and that he sustained the fatal shot to the chest while he waseither bent over or kneeling on his knees. (4RT 1071.) Dr. Ward based her opinion on the locations of the bullet entry and exit wounds. Dr. Ward opined the shooter could not have been eightto ten feet away from Deputy Hoenig whenhefired the fatal bullet because the bullet trajectory was in a downward position. The shooter would haveto be elevated about twostories to inflict that wound from that distance. (4RT 1071, 1073-1075.) Both Mr. Ward and Dr. Ward stated the animation was notintended to be a simulation of the shooting, or to show the exactlocation of the shooter. Rather, it was intendedto be an illustration of the approximate locations from which the shots were fired. (4RT 1052, 1061, 1075.) Defense counsel never challenged the reliability and/or accuracy of any of the 58 evidence relied upon by Mr. Ward and Dr. Ward, and at no time did Mr. Ward or Dr. Ward indicate the animation wasnot a fair and accurate depiction of the evidence and/or their opinion. Given this evidence, the court property found the prosecutor had laid adequate foundation for admission of the animation. _ As to the second and third requirement,the trial court found the computer animation wasrelevant to the expert’s opinion. The court carefully conducted an Evidence Code section 352 balancing test, and in so doing,it specifically found the probative value of the animation outweighed any prejudicial effect. (4RT 1080.) Finally, counsel was given the opportunity to view the animation prior to trial (4RT 1029), and the court instructed the jury on the limited purpose of the animation pursuant to Hood,stating that the animation was demonstrative, similar to the use of charts or diagramstoillustrate testimony. The court further instructed that the animation was not “a film of what actually occurred or an exact re-creation,” but “only an aid to giving [the jurors] a view as to the prosecution [sic] version of the events based upon particular viewpoints and based uponinterpretation of the evidence.” (6RT 1572-1573.) Becausethetrial court properly consideredall of the requirements for admitting computer animation evidence and also gave an appropriate limiting instruction, there was no abuseofdiscretion here. Appellant’s reliance on Dunkle v. State (Okla. Crim. App. 2006) 139 P.3d 228, does notassist his argument becausethat case is factually distinguishable. (AOB 70-74.) In Dunkle, the defendant was charged with shooting and killing her fiancé. (/d. at p. 231.) The prosecutor soughtto use several computer animations that depicted a man and womanstanding in different positions while interchangeably holding a gunat the location of the shooting. (/d. at pp. 249-250.) The defendant challenged the 59 prosecution’s use of the computer animations to show that the defendant’s version of a shooting wasinconsistent with the evidence. Thetrial court found that the animations were merely demonstrative aids and overruled the defendant’s objections. (/d. at p. 246.) On appeal, the Court of Appeal noted the victim only had one bullet wound, the bullet did not pass through any solid surface other than the victim’s body, and the bullet was never found. Cd. at p. 248.) The court found the expert “had no objective physical evidence from which to determine the position of the victim’s body, at the time of the shooting, in relation to some other knownpoint or surface.” (/bid.) The court found the use of the animations was inappropriate and misleading and that the data, including physical evidence, the crime scene analysis, and the defendant’s statements, did not support the computer animations.(/d. at pp. 249-250.) The Court concluded, “Because the animations were notfairly representative of the evidence in the case, they were notrelevant.” (Ud. at p. 251.) The trial court in Dunkle had also failed to instruct the jury on how to view and evaluate the animations. (/bid.) Unlike Dunkle, appellant’s case did not involve use of multiple animations. The one animation that was played to the jury wasconsistent with the evidence, experts’ opinion, and the prosecution’s theory of the case. None of the prosecution’s physical evidence showed the shooter was at some location other than the general area shown on the animation, nor did defense counsel challenge the reliability and/or accuracy of any ofthe evidence relied upon by Mr. Ward and Dr. Ward in making the animation. The animation wasintroduced during Mr. Ward and Dr. Ward’s testimony and served onlyto illustrate their opinion and theory ofthe case. Unlike the lack of “objective evidence” in Dunkle, the approximate locations where the shooter had fired his gun were determined from bullet trajectory, shell casing placement, and information Mr. Ward obtained from 60 other experts involved in the case. (6RT 1571-1572, 1582-1583.) Mr. Wardwascareful to explain that the animation did not actually show the actual shooter moving in the convention sense because Mr. Ward did not have any information about the shooter’s body position or how heheldhis gun. Rather, the animation depicted the locations where the shots were fired throughthe useofstill frames that were “dissolved between them” based on the photographsof crime scene, the measurements taken by Mr. Ward, the physical evidence obtained from the crime scene, and the coroner’s report and photographs. Mr. Ward explained the computer animation was not meant to show what had actually happened. Rather,it was an “illustrative tool for explaining concepts.” (6RT 1569-1570.) Mr. Ward also madeclearto the jury that the shot sequence shown on the animation was numberedarbitrarily because Mr. Ward could not determine the actual sequence of the shots. However, it was his best estimate that the sequence was as follows: Shot number 1 occurred by a tree, shot numbers 2, 3, and 4 werefired from the street on the driver’s side of the patrol car, and shot numbers5, 6, and 7 were fired over by the curb. (6RT 1581-1583.) This progression of shots made the most logical sense based on the evidence. (6RT 1586-1587.) Likewise Dr. Ward’s opinionasillustrated on the animation was based on the evidence found on the coroner’s reports, photos, and measurements. According to Dr. Ward, shot number1, fired from thetree, hit Deputy Hoenig’s hand while he wasstill in the patrol car. That shot was fired “at some distance.” (6RT 1598-1599.) Counsel did not contest Dr. Ward’s opinion in this regard. (4RT 1029.) Moreover, it was consistent with Nada Watson’s testimony that she saw appellant shoot Deputy Hoenig from the back window while the deputy wassitting in his car reaching for a “walkie-talkie” on his radio. (SRT 1205-1206.) 61 Dr. Ward determined shot number 2 wasfired while Deputy Hoenig wasstill sitting in the patrol car, turned to his left with his feet flat on the groundto exit the car. The bullet hit Deputy Hoenig’s leg, causing him to fall to his knees. The entry and exit wounds to Deputy Hoenig’s leg suggested that he had turned to face the shooter. (6RT 1599-1600, 1604.) This was also consistent with Watson’s testimony that appellant stood near the left rear tire of Deputy Hoenig’s patrol car and fire two shotsat the deputy while the deputy sat in his car with his body half way outside the car (SRT 1202-1205), and it was consistent with Sandra Carranza’s testimony that the shooter moved in a southeasterly direction as he shot Deputy Hoenig (SRT 1284-1285). Shot number3 was fired while Deputy Hoenig was leaning over. Dr. Wardbelieved the shooter took a step or two closer to Deputy Hoenig and shot Deputy Hoenig while he was on his knees. The bullet from shot number 3 entered Deputy Hoenig’s chest and ripped throughhis aorta, causing himto bleed to death. (6RT 1601-1604.) The bullet wound to Deputy Hoenig’s chest, and the lack of stippling and sooting, suggested that the shooter wasfairly close to Deputy Hoenig whenhefired the third shot, about four to six feet away. (6RT 1605-1607.) A shell casing found by the -driver’s side door supported that theory. (ORT 1609.) The shooter fired shot number 4 down at Deputy Hoenig while Deputy Hoenig laid on the ground or leaning way over. This bullet hit -- Deputy Hoenig in the back, and was stopped byhis bulletproof vest. (6RT 1607-1609.) . It is apparent that Mr. Ward and Dr. Ward’s opinionsillustrated by the animation were based on objective physical evidence, which were consistent with eyewitness testimony. The computer animation shown to the jury in this case is in no waysimilar to the ones utilized in Dunkle. Thus, Dunkle is of no assistance to appellant’s position on this issue. 62 C. Any Alleged Error Was Harmless Under Evidence Codesection 353 and section 13 ofarticle VI of the California Constitution, a judgmentshall not be set aside for the erroneous admission of evidence unless the error resulted in a miscarriage ofjustice. (People v. Breverman (1998) 19 Cal.4th 142, 172-173; People v. Watson (1956) 46 Cal.2d 818, 836.) As explained in People v. Watson, supra, at page 836, underthe miscarriage ofjustice standard, a defendantis not entitled to reversal unless, but for the complained oferror, there is a reasonable probability the defendant would havereceived a betterresult. (See People v. Cole (2004) 33 Cal.4th 1158, 1199 [applying Watsontest to erroneous admission of photographsofvictim].) Here, any alleged error in allowing the prosecutor to use the computer animation was harmless. Since the presentation was merely a visual representation of the testimony, testimony that appellant does not complain was erroneously admitted, the use of the presentation would have had a negligible effect. This is especially true in light of the strong evidence of guilt (see below). (See People v. Hart (1999) 20 Cal.4th 546, 648 [any error in admitting cumulative photographs of victim in penalty phase was harmless in light of other evidence of guilt].) Moreover, the animation was not inflammatory -- it merely depicted the general location of the shooter, and not the shooter himself. (6RT 1569-1570.) Compared to the autopsy photos, crime scene photos, and other evidence of the murder, the computer animation was pedestrian in nature. Andthetrial court specifically instructed the jury on how to view and evaluate the animation. (6RT 1572- 1573.) Finally, the evidence of guilt against appellant was simply overwhelming. Several eyewitnesses identified appellant as the shooter. (SRT 1196, 1216-1219, 1296-1297, 1299-1300, 1303-1304.) In fact, Nada Watson knew appellant personally, and watchedin horror as he murdered 63 Deputy Hoenig. (SRT 1192-1193, 1199-1208.) Appellant was found hiding near the crime scene. (SRT 1331-1336.) After his arrest, appellant led investigators to the location where he had thrown the murder weapon, and appellant’s palm andfinger prints were later found on the murder weapon. (6RT 1541-1543, 1552-1557, 1616.) And mostsignificantly, appellant confessed to murdering Deputy Hoenig onatleast three separate occasions followinghis arrest. (6RT 1617, 1630-1631, 1658-1661, 1667- 1668; People’s Exh. No. 77A & 78A.) Appellant so much as concededthe evidence against him was overwhelming by claiming that the computer animation was cumulative in nature. (AOB 73.) So even if the trial court erred in admitting the computer animation, appellant cannotarticulate how such evidence would be prejudicial when, by definition, the jury already had the evidence shown on the animation properly before it from other witnesses. In light ofall these circumstances, there is no reasonable probability that appellant would have received better result attrial if the computer animation was excluded from evidence. (People v. Watson, supra, 46 Cal.2d at p. 836.) For the same reasons, any federal constitutional error was harmless beyond a reasonable doubt. (Chapmanv. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705].) Wl. CALJIC NO. 8.85 DID NOT VIOLATE APPELLANT’S EIGHTH AND FOURTEENTH AMENDMENTRIGHTS TO A RELIABLE SENTENCING DETERMINATION Appellant contendsthe failure of CALJIC No. 8.85 (Factors(a), (b), & (c) Cover Different Conduct) to identify statutory mitigating factors that were relevant solely as potential mitigators precludeda fair, reliable and evenhanded administration of the death penalty. (AOB 78-80.) Appellant further argues the inclusion of “extreme mental or emotional disturbance” as a mitigating factor underfactor (d) of section 190.3 and CALJIC No. 8.85, precluded the jury from considering as mitigating evidence a mental 64 or emotional disturbance that were less than extreme. He claimsthe use of the terms “extreme”and “substantial” violated his constitutional rights under the Fifth, Sixth, Eighth and Fourteenth Amendmentsas well as state law.” (AOB 80-84.) Appellant recognizes that in People v. Farnam (2002) 28 Cal.4th 107, 191-192, this Court rejected this argument, but suggests this Court has not “adequately addressed the underlying reasoning presented by appellant” and asks this Court to reconsiderits decision in Farnam. (AOB 78.) Appellant’s arguments are without merit. First, appellant did not request the trial court modify the instructions now challenged on appeal. Thus, this claim is not preserved for this appeal. (People v. Carpenter, supra, 15 Cal.4th at p. 391.) Second, the instruction did not violate constitutional principles. Thetrial court had no obligation to instruct the jury on which factors are aggravating and whichare mitigating. (People v. Marks (2003) 31 Cal.4th 197, 237; People v. Farnam, supra, 28 Cal.4th at p. 191; People v. Taylor (2001) 26 Cal.4th 1155, 1180; People v. Anderson (2001) 25 Cal.4th 543, 601.) | CALJIC No. 8.85, the implementing instruction for the aggravating and mitigating factors set forth in section 190.3, was given in relevant part as follows: In determining which penalty is to be imposed on the defendant, you shall considerall of the evidence which has been © received during any part of thetrial in this case. You shall ” Appellantfails to provide any authority for his one sentence assertion that instructing the jury with CALJIC No.8.85 violated state law. (See AOB 79.) He neverindicates what state law was violated or makes any argument understate law. Because matters perfunctorily asserted without argument or authority in support thereof are not properly raised (People v. Gionis (1995) 9 Cal.4th 1196, 1214, fn. 11), respondent declines to speculate as to the nature of appellant’s state law claim. 65 consider, take into account and be guidedbythe following factors, if applicable: (a) The circumstancesof the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances foundto betrue. (b) The presence of absence of criminal activity by the defendant, other than the crime for which the defendant has been tried in the present proceedings, which involvethe use or attempted use of force or violence or the express or implied threat to use force or violence. (c) The presenceor absenceof anyprior felony conviction, other than the crimes for which the defendant has been tried in the present proceedings. (d) Whetheror not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance. (k) Any other circumstances which extenuates the gravity of the crime even thoughit is not a legal excuse for the crime and any sympathetic or other aspect of the defendant’s character or record that the defendant offers as a basis for a sentences less than death, whetheror not related to the offense for which heis on trial. You must disregard any instruction given to you in the guilt or innocence phaseofthis trial which conflicts with that principle. (8RT 1973-1976; SCT 931-932.) This instruction was proper. This Court has repeatedly held that the failure to identify which factors are aggravating and which are mitigating is not error-- “the aggravating and mitigating nature ofthe factors is self-evident within the context of each case.” (People v. Dickey (2005) 35 Cal.4th 884, 928; see also People v. Moon (2005) 37 Cal.4th 1, 41-42; People v. Farnam, supra, 28 Cal.4th at p. 191; People v. Hillhouse (2002) 27 Cal.4th 469, 509.) 66 Appellant has provided no reason for this Court to depart from these decisions. Appellant also complainsthat the jury could only consider mental illness or duress that was “extreme” and being under the domination of another person only if it was “substantial.” (AOB 80; see 8RT 1974-1975; 5CT 931-932.) This Court has established that while factor (d) of section ~ 190.3 and CALJIC No.8.85 only permit consideration of“extreme mental or emotional disturbance,” factor (k), the catch-all provision, permits “consideration of nonextreme mental or emotional conditions.” (Peoplev. Turner (1994) 8 Cal.4th 137, 208, quoting People v. Clark (1992) 3 Cal.4th 41, 163; see also People v. Moon, supra, 37 Cal.4th at p. 42; People v. Blair (2005) 36 Cal.4th 686, 753; People v. Yeoman (2003) 31 Cal.4th 93, 165; People v. Weaver (2001) 26 Cal.4th 876, 993; People v. Mayfield, supra, 14 Cal.4th at p. 806; People v. Davenport (1995) 11 Cal.4th 1 171, 1203.) Appellant’s argumentto the contrary is thus clearly at odds with the decisions of this Court. Furthermore, in Blystone v. Pennsylvania (1990) 494 U.S. 299, 308 [110 S.Ct. 1078, 108 L.Ed.2d 255], the United States Supreme Court held that a similar catch-all provision in Pennsylvania’s jury instruction comported with the Eighth Amendment. The corresponding California provision, factor (k) of section 190.3 and CALJIC No.8.85, was similarly upheld as constitutional in Boyde v. California (1990) 494 U.S. 370, 381- © 383 [110 S.Ct. 1190, 108 L.Ed.2d 316]. Thus, the aggravating and mitigating factors set forth in section 190.3 and CALJIC No.8.85 are not “unconstitutionally vague,or arbitrary, or render the sentencing process unreliable under the Eighth and Fourteenth Amendments.” (People v. Moon, supra, 37 Cal.4th at p. 42.) Therefore, appellant’s argument must be rejected. 67 IV. CALJIC NO.8.88 AS GIVEN WAS VALID AND PROPERLY DEFINED THE SCOPE OF THE JURY’S SENTENCING DISCRETION AND THE NATURE OF ITS DELIBERATIVE PROCESS Appellant challenges CALJIC No. 8.88 in several respects. (AOB 85- 120.) Appellant acknowledges his challenges have been previously rejected by this Court, but submits this Court incorrectly decided those cases and should nowreconsiderits decisions. (AOB 86.) Appellant’s failure to object to the instruction or request it be modified on these grounds bars him fromraising this issue on appeal. (People v. Arias (1996) 13 Cal.4th 92, 171.) Nevertheless, there is no reason for this Court to reconsider its numerouscases rejecting arguments identical to those made by appellant. The jury was instructed pursuant to CALJIC No.8.88 as follows: It is now your duty to determine which ofthe two penalties, death or confinementin the state prisonforlife without possibility of parole, shall be imposed upon the defendant. After having heardall the evidence, and then after you’ve heard and considered the arguments of counsel, you shall consider, take into account and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have beeninstructed. An aggravating factor is any fact, condition or event attending the commission of a crime whichincreasesits guilt or enormity, or addsto its injurious consequences which is above and beyondthe elements ofthe crime itself. A mitigating circumstanceis any fact, condition or event which does not constitute a justification or excuse for the crime in question, but . may be considered as an extenuating circumstance in determining the appropriateness of the death penalty. The weighing of the aggravating and mitigating circumstances does not mean a mere mechanical counting of factors on eachside of an imaginaryscale, or the arbitrary assignment of weights to any of them. Youare free to assign 68 whatever moral or sympathetic value you deem appropriate to each andall of the various factors you are permitted to consider. In weighing the various circumstances you determine underthe relevant evidence which penalty is justified and appropriate by consideringthe totality of the aggravating circumstances with the totality of the mitigating circumstances. To return a judgment of death, each of you must be persuaded that the aggravating circumstancesare so substantial in comparison with the mitigating circumstances that it warrants death instead of life without the possibility of parole. (8RT 1976-1978; SCT 933-934.) A. CALJIC No. 8.88 Properly Informed the Jury OfIts Responsibility in Determining Whether to Impose Death or A Sentence of Life Without the Possibility of Parole Appellant claims that CALJIC No. 8.88 did not conveyto the jury that a life sentence was required if the aggravating factors did not outweigh the mitigating factors. (AOB 87-90.) Thetrial court need not expressly instruct the jury that a sentence of life imprisonmentwithout parole is mandatory if the aggravating circumstances do not outweigh those in mitigation (People v. Kipp (1998) 18 Cal.4th 349, 381; People v. Duncan (1991) 53 Cal.3d 955, 978.) As previously noted, this Court has found CALJIC No. 8.88 gives the jury adequate instruction on howto return life sentence (People v. Taylor, supra, 26 Cal.4th 1155, 1181; People v. Kipp, supra, 26 Cal.4th at p. 1138; People v. Frye (1998) 18 Cal.4th 894, 1023-1024; see People v. Arias, supra, 13 Cal.4th at pp. 170-171) and the standard instruction has been consistently upheld. (People v. Moon, supra, 37 Cal.4th at p. 43; Peoplev. Smith (2005) 35 Cal.4th 334, 370; People v. Medina (1995) 11 Cal.4th 694, 781-782; People v. Duncan, supra, 53 Cal.3d at p. 978.) CALJIC No. 8.88 permits a death penalty only if aggravation is so substantial in comparison with mitigation that death is warranted; if aggravation failed even to 69 outweigh mitigation, it could not reach this level. (People v. Smith, supra, 35 Cal.4th at p. 370.) The instruction was proper. B. CALJIC No. 8.88 Properly Imparted to the Jury thatIt Could Return a Sentence of Life Without the Possibility of Parole Even in the Absence of Mitigating Factors Next, appellant contends that because CALJIC No. 8.88 did not inform the jurors that they had the discretion to impose a sentence of life without the possibility of parole even in the absence of mitigating factors, the instruction improperly reduced the prosecution’s burden of proof in violation of appellant’s rights to due process and reliable penalty determination under the Eighth and Fourteenth Amendments. (AOB 91- 92.) This Court has repeatedly rejected his contention. (See People v. Lindberg (2008) 45 Cal.4th 1,52; People v. Moon, supra, 37 Cal.4th at p. 43; People v. Ray (1996) 13 Cal.4th 313, 355; People v. Duncan, supra, 53 Cal.3d 955, 978-979). C. CALJIC No.8.88 is Not Unconstitutionally Vague in Instructing the Jury that It Must be Persuaded that Ageravating Circumstances Must be “So Substantial” In Comparison to Mitigating Factors That It can ImposeDeath Instead of Life Without the Possibility of Parole Next appellant claims that CALJIC No. 8.88 is unconstitutionally vague and violates his rights under the Eighth and Fourteenth Amendments by informing the jury that “[t]o return a judgment of death, each of you mustbe persuaded that the aggravating circumstances are so substantial in comparison with the mitigating circumstancesthat it warrants death instead of life without the possibility of parole.” (AOB 92-94; see 8RT 1978; 5CT 933-934.) The phrasein the instruction telling the jurors thatthe aggravating factors must be “so substantial” as compared to the mitigating factors that death is warranted is not impermissibly vague. 70 This Court has previously held that the phrase “so substantial” in the last paragraph ofthe instruction properly instructs the jury that aggravating circumstances must outweigh mitigating ones. (People v. Lindberg, supra, 45 Cal.4th at p. 52; People v. Moon, supra, 37 Cal.4th at p. 43; Peoplev. Young (2005) 34 Cal.4th 1149, 1227; People v. Arias, supra, 13 Cal.4th at p. 171.) CALJIC No. 8.88 is not vague and adequately guides the jury’s sentencing discretion. (People v. Hovarter (2008) 44 Cal.4th 983, 1028 [“Is not overly vague for using the words ‘so substantial’ as a modifying phrase”’]; People v. Smith, supra, 35 Cal.4th at p. 369; People v. Carter (2003) 30 Cal.4th 1166, 1226 [rejecting argumentthat phrase “so substantial” contained in CALJIC No. 8.88 was unconstitutionally vague, conduciveto arbitrary and capricious decision making, and created an unconstitutional presumption in favor of death].) Further, the United States Supreme Court has stated that once the jury ' finds the defendant is within a category of personseligible for the death penalty, the sentencer may be given “‘unbridled discretion’ in determining whether the death penalty should be imposed.” (Tuilaepa v. California (1994) 512 U.S. 967, 979-980 [114 S.Ct. 2630, 129 L.Ed.2d 750].) Indeed this Court has cited the Tuilaepa case in rejecting a claim that the phrase “so substantial” is too vague. (People v. Davenport, supra, 11 Cal.4th at p. 1231.) As appellant presents no persuasive reason for this Court to revisit any of its past rulings, his claims should be rejected. (See People v. Frye, supra, 18 Cal.4th at p. 1024; People v. Rodrigues (1994) 8 Cal.4th 1060, 1193.) D. CALJIC No. 8.88 Does Not Violate the Eighth and Fourteenth Amendments by Use of the Term “Warrants” Rather than “Appropriate” Appellant next attacks CALJIC No. 8.88 for instructing the jury that to imposethe death penalty, it must find the aggravating circumstances so 71 substantial comparedto those in mitigation thatit “warrants death instead of life without parole.” (AOB 94-95.) Appellant claims the term “warrants,” violates his Eighth and Fourteenth Amendmentrights arguing that “just because death may be warranted, or authorized, in a given case does not meanit is necessarily appropriate.” (AOB 95.) | In People v. Breaux (1991) 1 Cal.4th 281, 315-316, this Court termed this same contention “spurious.” The Court held that use of the term “warrants” is not a considerably broader term than “appropriate,” as the defendant argued andthat the language of CALJIC No.8.84.2 (the precursor to CALJIC No. 8.88), essentially informed the jury that “it could return a death verdict only if the aggravating circumstances predominated and death [was] the appropriate verdict.” (People v. Breaux, supra, 1 _ Cal.4th at p. 316; accord, People v. Coffman & Marlow (2004) 34 Cal.4th 1, 122 [relying on Breaux to reject identical challenge to CALJIC No. 8.88]; People v. Crew (2003) 31 Cal.4th 822, 858; People v. Boyette (2002) 29 Cal.4th 381, 464-465.) “Byadvising that a death verdict should be returned only if aggravationis 'so substantial in comparison with' mitigation that death is ‘warranted,’ the instruction clearly admonishesthe jury to determine whetherthe balance of aggravation and mitigation makes death the appropriate penalty.” (People v. Smith, supra, 35 Cal.4th at p. 370, citing People v. Arias, supra,13 Cal.4th at p. 171.) CALJIC No. 8.88 gives the jury adequate instruction on how to return a life sentence. (People v. Taylor, supra, 26 Cal.4th at p. 1181; People v. Kipp, supra, 26 Cal.4th at p. 1138; People v. Frye, supra, 18 Cal.4th at pp. 1023-1024.) Further, there is certainly no federal claim involvedhere since the United States Supreme Court has approved language providing that if the aggravating circumstances outweigh the mitigating circumstances the jury “shall imposea sentence of death.” (Boyde v. California, supra, 494 72 U.S. at pp. 373-377.) The jury in this case wastold, “In weighing the various circumstances you determine under the relevant evidence which penalty is justified and appropriate by consideringthe totality of the aggravating circumstances with thetotality of the mitigating circumstances.” (8RT 1978; SCT 933.) Appellant has neither acknowledged, nor attempted to demonstrate why this Court should reconsider, its prior decisions rejecting his contention. E. Burden of Proof 1. The Failure To Have A Penalty Phase Instruction On The Burden Of Proof Does Not Violate The United States Constitution Appellant contends that his rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution were violated because the jury was not instructed in the penalty phasethat all aggravating factors had to be proven by the prosecution beyond a reasonable doubt. (AOB 95-102.) This Court has consistently rejected similar contentions. (See People v. Hovarter, supra, 44 Cal.4th at p. 1028 [Is not flawed for failing to assign the burden ofproofto one ofthe parties”’]; People v. Moon, supra, 37 Cal.4th at pp. 43-44; People v. Carpenter, supra, 15 Cal.4th at pp. 417-418 [because the penalty decisionis “inherently moral and normative”rather than factual, instruction on the burden ofproofis not required]; People v. Osband (1996) 13 Cal.4th 622, 709-710 [rejecting claim that federal constitution required penalty phase jury to be instructed that all aggravating factors and decision to impose death penalty had to be supported by proof beyond a reasonable doubt].) Appellant argues, however, that this Court should revisit this issue in light of the United States Supreme Court’s decisions in Jones v. United States (1999) 526 U.S. 277 [119 S.Ct. 1215, 143 L.Ed.2d 311], Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435], and 73 Ring v. Arizona (2002) 536 U.S. 584 [122 S.Ct. 2428, 153 L.Ed.2d 556]. (AOB 96.) Recently, this Court did reexamineits decisionsin light of Apprendi, Ring, and the more recent decision in Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403]. This Court determined that those cases have not altered the Court’s conclusion that no burden of proofis required in the penalty phase of a capital trial. (People v. Arias, supra, 13 Cal.4th at p. 171.) “[U]nder the California death penalty scheme, once a defendant has been foundguilty of first degree murder and one or morespecial circumstances have been found true beyond a reasonable doubt, death is no more than the prescribed statutory maximum for the offense; the only alternative is life imprisonment without the possibility of parole.’ [Citation].” (People v. Ward (2005) 36 Cal.4th 186, 221-222 quoting People v. Prieto (2003) 30 Cal.4th 226, 263.) The Court need not reexamineits decisions yet again. 2. The Trial Court was Not Required to Instruct the Jury on Burden of Persuasion Appellant also contendsthe failure to instruct the jury that the prosecution bears “some burden”ofpersuasion at the penalty phase violated his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments. (AOB 102-105.) Appellant acknowledges this Court has rejected this contention. (AOB 102, citing People v. Hayes (1990) 52 Cal.3d 577, 643.) This Court has repeatedly held that “[b]ecause the determination of penalty is essentially moral and normative [citation omitted] and therefore different in kind from the determination of guilt, there is no burden of proof or burden of persuasion.” (People v. Hayes, supra, 52 Cal.3d at p. 643; People v. Blair, supra, 36 Cal.4th at p. 753; People v. Carpenter, supra, 15 Cal.4th at pp. 417-418.) There is no compelling reason to reexaminethis Court’s decisions. 74 3-5. The Trial Court was not Required to Instruct the Jury on the Burden of Proof on Mitigating Circumstances or That There was no Unanimity Requirement Regarding the Mitigating Circumstances Appellant further claims the instructions violated the Fifth, Sixth, Eighth, and Fourteenth Amendments byfailing to instruct the jury on the standard of proof required for mitigating circumstances,i.e., that the defendant bears no particular burden to prove mitigating factors and that the jury wasnot required to unanimously agree on the existence of mitigation. Heurgesthe failure to so instruct cause structural error mandatingreversal. (AOB 105-110.) As with appellant other arguments, this Court has repeatedly held the California death penalty statute is not unconstitutional because it does not contain a requirementthat the jury be given burden ofproofor standard of proofinstructions for finding aggravating and mitigating circumstances in reaching a penalty determination. (People v. Stitely (2005) 35 Cal.4th 514, 574; People v. Panah (2005) 35 Cal.4th 395, 499; People v. Vieira (2005) 35 Cal.4th 264, 300; People v. Morrison (2004) 34 Cal.4th 698, 730-731; People v. Welch (1994) 20 Cal.4th 701, 767-768) Because appellant offers no meritorious reason for this Court to reconsiderthis rule, his claim should be rejected. . Similarly, appellant’s claim that the jury should have been instructed that appellant bore no particular burden to prove mitigating factors and that the jury was not required to unanimously agree on the existence of mitigation has also been rejected by this Court. In Breaux, the defendant claimedthat the trial court improperly rejected his proposed jury instruction that unanimity was not required for consideration of mitigating evidence. (People v. Breaux, supra, 1 Cal.4th at p. 314.) This Court disagreed, explaining: 75 There was nothing in the instructions to limit the consideration | _of mitigating evidence and nothing to suggest that any particular number ofjurors was required to find a mitigating circumstance. The only requirement of unanimity wasfor the verdictitself. [Citation.] [§]] The instructions that were given in this case unmistakably told the jury that each member mustindividually decide each question involved in the penalty decision. They were told to considerall the evidence, specifically including any circumstance in mitigation offered by defendant. We find no error in the court’s refusal to give defendant’s proposed instruction. (Id. at p. 315, italics in original.) Such wasthe case here. As in Breaux, there was nothingin the given instructions that limited the jurors’ consideration of mitigating evidence or that suggested that “any particular numberofjurors was required to find a mitigating circumstance.” (See People v. Breaux, supra, | Cal.4th at p. 315.) Also, similar to the instructions in Breaux, the jurors were instructed with CALJIC No. 8.88 (1989 rev.), which told them that “[t]o return a judgment of death, each of you must be persuadedthat the aggravating circumstancesare so substantial in comparison with the mitigating circumstancesthat it warrants death instead of life without the possibility of parole.” (8RT 1978; SCT 933-934.) Appellant has provided no persuasive reason for this Court to reexamine this holding. F, Jury Unanimity on Agegravating Factors in not Constitutionally Compelled Again recognizing that this Court has previously rejected his claim that the constitution requires a jury unanimously find aggravating circumstances (AOB 110,citing People v. Bacigalupo (1991) 1 Cal.4th 103, 147, & People v. Taylor, supra, 52 Cal.3d at p. 749), appellant nevertheless asserts that the failure to require unanimity as to aggravating circumstances“encouraged the jurors to act in an arbitrary, capricious and 76 unreviewable manner, and slant the sentencing process in favor of execution.” (AOB 110-111.) He asserts the United States Supreme Court’s decision in Ring “undercuts the constitutional validity of this Court’s ruling in Bacigalupo.” (AOB 111.) This Court has already rejected appellant’s argument. In People v. Griffin (2004) 33 Cal.4th 536, 593, this Court expressly held that the constitution does not require jury unanimity as to the existence of aggravating factors. In People v. Blair, supra, 36 Cal.4th at page 753, this Court reaffirmed its holding after considering the ramifications of Apprendi, Ring, and Blakely. It need not do so again in this case. G. Written Findings Regarding Aggravating Factors is not Required Appellant argues that CALJIC No.8.88 as given at trial violated his rights under the Equal Protection and Due Process Clauses of the Fourteenth Amendmentandarticle I, sections 7 and 24 of the California Constitution, because the jury was not require to make explicit written findings as to which factors in aggravation it relied upon in imposing the death penalty. (AOB 113-119.) As with appellant’s previous challenges to California’s death penalty scheme, this Court has repeatedly rejected the claim that unanimous written findings regarding aggravating factors are constitutionally required. (See e.g., People v. Blair, supra, 36 Cal.4th atp. 753; People v. Griffin, supra, 33 Cal.4th at pp. 593-594; People v. Snow (2003) 30 Cal.4th 43, 126; People v. Maury (2003) 30 Cal.4th 342, 440.) Having offered no compelling reasons for reconsideration, appellant’s contention fails. H. The Trial Court was not Required to Instruct the Jury On Presumption of Life Without Possibility of Parole 77 Finally, appellant contendsthetrial court should have been required to instruct the jury with the presumption oflife. He maintains that the court’s failure to instruct the jury with the presumptionoflife violated his right to due process under the Fifth and Fourteenth Amendments, his Eighth Amendmentrights to a reliable penalty determination andto be free from cruel and unusual punishment, and to his Fourteenth Amendmentright to equal protection. (AOB 119-120.) This Court has repeatedly rejected this challenge, holding trial court is not required to instruct on a “‘presumptionoflife.’” (People v. Dunkle (2005) 36 Cal.4th 861, 940 citing People v. Combs (2004) 34 Cal.4th 821, 868; People v. Arias, supra, 13 Cal.3d at p. 190.) There being no requirementfor the trial court to do so, appellant’s constitutional challenges mustfail. Vv. THE TRIAL COURT PROPERLY INSTRUCTED THE JURY ON THE MEANING OF LIFE WITHOUT THE POSSIBILITY OF PAROLE Appellant claims neither CALJIC No. 8.88 nor any other instruction informedthejurors that a sentence of life without the possibility of parole meantthat appellant would “never” be considered for parole. (AOB 121, emphasis in original.) Thus, he maintains the trial court had a sua sponte duty “to instruct on the true meaningof this sentence.” (AOB 121-127.) Appellant recognizes this Court previously rejected this argumentfinding a proposedinstruction that “A sentence oflife without the possibility of parole meansthat the Defendant will remainin state prison for the rest of his life and will not be paroled at any time.” (People v. Gardon (1990) 50 Cal.3d 1223, 1277; see also People v. Thompson (1988) 45 Cal.3d 86, 130- 131.) However, he suggests this Court should reconsider these decisions in light of Simmons vy. South Carolina (1994) 512 U.S. 154 [114 S.Ct. 2187, 129 L.Ed.2d 133], and Kelly v. South Carolina (2002)534 U.S. 246 [122 78 S.Ct. 726, 151 L.Ed.2d 670]. (AOB 121-124.) This Court has considered the impact of Simmons, in rejecting this argument and need not reconsider its decisions. (People v. Smithey (1999) 20 Cal.4th 936, 1008-1009; People v, Musselwhite (1998) 17 Cal.4th 1216, 1271; People v. Arias, supra, 13 Cal.4th at pp. 172-174.) The trial court is not required to instruct the jury that life without the possibility of parole means the defendant will never be paroled. (People v. Dunkle, supra, 36 Cal.4th at p. 940.) Thus, appellant’s contention should be summarily rejected. VI. BECAUSE APPELLANT HAS NOT DEMONSTRATED ANY ERRORS, THERE ARE NO ERRORS WHICH TAKEN CUMULATIVELY REQUIRE REVERSAL OF APPELLANT’S CONVICTION AND DEATH SENTENCE Throughout appellant’s opening brief, appellant alleges that even if an error does not individually require reversal of his murder conviction and special circumstance finding and/or his death sentence, when taken together the cumulative effect of such errors requires reversal. (See AOB 128-130.) None of appellant’s claims demonstrate any error at any stageoftrial. Moreover, even assuming there were anyerrors, taken individually or together, those errors do not require reversal of appellant’s murder conviction, the special circumstance findings, or the jury’s determination that death was the appropriate penalty for appellant’s crime. (People v. Slaughter (2002) 27 Cal.4th 1187, 1223; People v. Koontz (2002) 27 Cal.4th 1041, 1094 [guilt phase instructional error did not cumulatively deny defendanta fair trial and due process]; People v. Cooper (1991) 53 Cal.3d 771, 830 [“little error to accumulate”];.) 79 The evidence against appellant was simply overwhelmingin both the guilt and penalty phasesof trial. Even if this Court finds there were few errors, whether considered individually or for their cumulative effect, any error or combination oferrors could not have affected the outcomeofthe trial. (See People v. Seaton (2001) 26 Cal.4th 598, 675, 691-692; People v. Ochoa (2001) 26 Cal.4th 398, 447, 458; People v. Catlin (2001) 26 Cal.4th 81, 180.) “The pertinent question in determining whetherthereis cumulative error is whether the defendant’s guilt or innocence wasfairly adjudicated.” (People v. Hill (1998) 17 Cal.4th 800, 844.) Even. acapital defendantis entitled only to a fair trial, not a perfect one. (People v. Cunningham, supra, 25 Cal.4th at p. 1009; People v. Box (2000) 23 Cal.4th 1153, 1214, 1219.) Even if appellant has demonstrated a few errors, which he has not, there is no reasonable possibility that the sentencing jury would havereacheda different result absent any of the alleged errors. (People v. Maury, supra, 30 Cal.4th at p. 444; People v. _ Jones, supra, 29 Cal.4th at p. 1268; People v. Burgener (2003) 29 Cal.4th 833, 884.) | VII. BASED ON THE NUMEROUSDECISIONSOF THIS COURT REJECTING CONSTITUTIONAL CHALLENGES TO CALIFORNIA’S CAPITAL SENTENCING STATUTE, THIS COURTSHOULD REJECT APPELLANT’S CHALLENGES AS WELL Appellant claims the use of the death penalty as a regular form of punishment, and the failure to provide intercase proportionality review, violate the prohibition against cruel and unusual punishmentunderthe Eighth and Fourteenth Amendments. (AOB 131-138.) Because this Court has repeatedly rejected such challenges, it should reject appellant’s challenges as well. (See i.e., People v. Dickey, supra, 35 Cal.4th at p. 931 [law not defective in failing to require intercase proportionality review]; 80 People v. Brown (2004)33 Cal.4th 382, 402; People v. Lewis (2001) 26 Cal.4th 334, 394-395.) Nor has appellant demonstrated the death penalty schemein California is used “for a substantial numberof crimes”in violation of the Eighth and Fourteenth Amendments. (AOB 133.) Appellant cannot make this showing as this Court has repeatedly held that the special circumstancesprovisions of California’s death penalty law adequately narrowsthe class of death-eligible offenders. (People v. Brown,supra, 33 Cal.4th at p. 401; People v. Frye, supra, 18 Cal.4th at p. 1028 [rejecting | challenge that special circumstance provisions perform no narrowing function; nor have they been construed in an “overly expansive manner’J.) ~ Based on the foregoing, all of appellant’s challenges to California’s capital sentencing scheme mustagain berejected by this Court. VI. APPELLANT’S DEATH SENTENCE DOES NOT VIOLATE INTERNATIONAL LAW Finally, appellant contends that his death sentence violates international law. (AOB 139-141.) However, as appellant acknowledges, this contention has been previously rejected the claim that California’s death penalty scheme andanindividual death sentence violates Article VII of the International Covenant of Civil and Political Rights (ICCPR), and the Eighth Amendmentof the United States Constitution (AOB 141, citing People v. Ghent (1987) 43 Cal.3d 739, 778-779; People v. Hillhouse, supra, 27 Cal.4th at p. 511), appellant urges this Court to reconsiderits holdings and find appellant’s death sentence violates international law. (AOB 141.) First, there is no reason for this Court to reexamineits rulings. (People v. Dickey, supra, 35 Cal.4th at p. 932.) Second, appellant does not have standing to allege a violation of the ICCPR. Evenif he did, no international law violation occurred because neither California’s capital sentencing schemenor appellant’s death sentence violate the state or 81 federal constitution. (People v. Jenkins (2000) 22 Cal.4th 900, 1055.) Appellant’s Eighth Amendment claim should also be rejected because appellant has failed to establish the existence of a national consensus against executing those who commit crimes like the ones committed by appellant. The United States is, as appellant points out, a signatory to the ICCPR. (People v. Brown, supra, 33 Cal.4th at pp. 402-403.) But because treaties generally apply only to disputes between sovereign governments, appellant lacks standing to challenge the death penalty under the ICCPR. (Hanoch Tel Oren v. Libyan Arab Republic (D.D.C. 1981) 517 F.Supp. 542, 545 547; but see United States v. Duarte Acero (11th Cir. 2000) 208 F.3d 1282, 1286 [“The clear language of the ICCPR manifests that its provisions are to govern the relationship between an individual andhis state”].) Even assuming appellant does have standing, his claim fails on the merits. “International law does not prohibit a sentence of death rendered in accordance with state and federal constitutional and statutory requirements.” (People v. Hillhouse, supra, 27 Cal.4th at p. 511; accord, People v. Cook (2006) 39 Cal.4th 566, 620; People v. Boyer (2006) 38 Cal.4th 412, 489.) With respect to the ICCPR,as this Court recently observed: [The United States] signed the [ICCPR] on the express condition “t]hat the United States reserves the right, subject to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age.” (138 Cong. Rec. $4781 01 (Apr. 2, 1992); see Comment, The Abolition of the Death Penalty: Does “Abolition” Really Mean What You Think it Means? (1999) 6 Ind. J. Global Legal Studies 721, 726 & fn. 33.) 82 (People v. Brown, supra, 33 Cal.4th 382, 403-404.) Asdiscussed infra, there were no state or federal constitutional law violations in this case. Consequently, this Court need not consider whether such violations “would also violate international law[.]” (People v. Dickey, supra, 35 Cal.4th at p. 932; People v. Hillhouse, supra, 27 Cal.4that p. 511; accord, People v. Brown, supra, 33 Cal.4th at p. 404 [declining to find law defective based on international law where no other defect in imposing the death penalty against defendant was found].) Appellant’s related Eighth Amendmentclaim also does not provide a basis for relief. The problem with appellant’s argumentis that it is not the international community’s viewsthat are relevant to the Eighth Amendmentanalysis; “it is American conceptions of decencythat are dispositive[.]” (Stanford v. Kentucky (1989) 492 US. 361, 370 [109 S.Ct. 2969, 106 L.Ed.2d 306].) . Because appellant has failed to show there is a national consensus against imposing a sentence of death in cases like his, his international law and related Eighth Amendmentclaimsfail. (Compare Atkinsv. Virginia (2002) 536 U.S. 304, 314-316, 321 [122 S.Ct. 2242, 153 L.Ed.2d 335] [holding the execution of a mentally retarded prisoner violates the Eighth Amendment’s ban on cruel and unusual punishmentafter noting a national consensusagainst this practice had emerged].) 83 CONCLUSION In sum, appellant has not shownthat any of the trial court’s rulings regarding excusal of prospective jurors and the admissibility of evidence were erroneous. Nor has he demonstrated that the instructions given in the guilt and/or penalty phases were faulty and that the California death penalty is unconstitutional. For these reasons, respondent respectfully requests this Court affirm appellant’s first degree murder conviction, the special circumstance findings, and his death sentence. Dated: March 29, 2010 TN:vss LA1999XS0010 60528154.doc Respectfully submitted, EDMUND G, BROWN JR. Attorney General of California DANER. GILLETTE Chief Assistant Attorney General PAMELA C. HAMANAKA Senior Assistant Attorney General KEITH H. BORJON Supervising Deputy Attorney General TAYLOR IN Deputy Attdmey General Attorneysfor Respondent 84 CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S BRIEFuses a 13 point Times New Romanfont and contains 26,424 words. Dated: March 29, 2010 EDMUND G. BROWN JR. Attorney General of California TAYLOR NGU Deputy Attorney General Attorneys for Respondent DECLARATION OF SERVICE BY U.S. MAIL Case Name: PEOPLE v. ENRIQUE PARRA DUENAS Case No:: S077033 I declare: I am employedin the Office of the Attorney General, which is the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplacedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same dayin the ordinary course ofbusiness. On March 29, 2010, I served the attached RESPONDENT’S BRIEFbyplacing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid,in the internal mail collection system at the Office of the Attorney General at 300 South Spring Street, Suite 1702, Los Angeles, CA 90013, addressed as follows: Ronald Turner . Governor’s Office, Legal Affairs Secretary Attorney at Law State Capital, First Floor 5050 Laguna Blvd., Suite 122 Sacramento, CA 95814 PMB#322 FOR DELIVERYTO: Elk Grove, CA 05758 GOVERNOR SCHWARZENEGGER Gil Garcetti California Appellate Project Deputy District Attorney 101 Second Street, Suite 600 320 West TempleStreet., Suite 780 San Francisco, CA 94105-3672 Los Angeles, CA 90012 Los Angeles County Superior Court Southeast District 12720 Norwalk Boulevard, Dept. W Norwalk, CA 90650-3188 FOR DELIVERYTO: HON. DEWEY LAWESFALCONE, JUDGE I declare under penalty of perjury under the lawsof the State of California the foregoingis true and correct and that this declaration was executed on March 29, 2010, at Los Angeles, California. Vanida S. Sutthiphong edCome Declarant Signature 7 TN:vss LAL999XS0010 60528465.doc