PEOPLE v. STREETER (HOWARD L.)Respondent’s BriefCal.August 21, 2009CAPITAL CASE I)i\:~";E R, Gl:Ll.ETTE Chicf}:\s~:>isHmt t\tt<:)rncy Gcncall G.ARY \V, SCI·IONS Senior !\~.:.:;i:>.ttorm~y G~~ne:ral NfEL1SSA \JANI>EL Deputy Attomcy Gcncr;;ll S~tatr :B~tr };o, 15914:1 EDMUtD G. BR(}\VN JR. ,v, tOt;', '-", {,\: r~p'l-l '~l' :.' ~ ;.,.;' C\~ 'l' ,;'iT<'<1; 'l..;: x ~.~.~ )0 0;. ? ' .." _. ;.;. ;.(. CasetIe consequence is the burning of a structure or property is presumed to intend that result].) And further, Streeter's history as a welder's assistant, and his elaborate plan to die at the hands of another to avoid eternal fire as his own fate, reveal Streeter knew that burning Yolanda would inflict torturous pain. If, in contrast, Streeter shot a gun at Yolanda, the bullet unexpectedly ricocheted off a nearby gas tank, and an explosion resulted causing her to catch on fire, the pain she suffered would be less helpful in determining Streeter's intent. But here, with these facts, the trial court acted well within its discretion when it ruled Yolanda's pain and suffering tended to show Streeter intended to cause her pain and suffering. Streeter argues his concessions during trial that he was the killer, that Yolanda suffered, and that she died a horrible death, removed these issues from the jury's consideration and rendered the evidence irrelevant. (AGB 86.) A defense offer to stipulate to the cause of death or manner of death does not negate the relevance of othetwise admissible evidence. (People v. Scheid (1997) 16 Ca1.4th 1, 16.) The prosecutor is not obliged to prove relevant facts from testimony alone, or be compelled to accept an antiseptic stipulation. The jury is entitled to see how the victim's body supports the prosecution's theory, and photographs are one kind of physical evidence which may be introduced. (People v. Pride (1992) 3 Ca1.4th 195,243; People v. Price (1991) 1 Ca1.4th 324, 433-435.) Nor may the prosecution be compelled to accept a defendant's offer to stipulate to the cause of death, in lieu of the disputed evidence, where the effect would be to deprive the state's case of its persuasiveness and forcefulness. (People v. Arias (1996) 13 Ca1.4th 92,131; People v. Edelbacher (1989) 47 Ca1.3d 983,1007.) As one appellate court has explained: [A] defendant has no right to transform the facts of a gruesome real life murder into an anesthetized exercise where 109 only the defendant, not the victim, appears human. Jurors are not, and should not be, computers for whom a victim is just an "element" to be proved, a "component" of a crime. A cardboard victim plus a flesh and blood defendant are likely to equal an unjust verdict. (People v. Thompson (1992) 7 Cal.AppAth 1966, 1974.) And finally, Streeter did not concede that he intended to inflict extreme physical pain upon Yolanda, and establishing that fact was the primary purpose of the evidence. Having determined the evidence is relevant, the next inquiry is whether the trial court abused its discretion in concluding the the probative value of the evidence outweighed its prejudicial effect. (People v. Ramirez, supra, 39 Ca1.4th at p. 453, citing People v. Carter, supra, 36 Cal.4th at pp. 1114, 1166.) With respect to the photographs, the trial court carefully described each photograph, the purpose for which it was offered, its relevance and whether or not it was cumulative. The court excluded two of the photographs. (5 RT 476-477.) With respect to the expert testimony, although the trial court did not expressly balance the probative value against the possible prejudice, the court clarified the limited scope of the evidence that would be admitted and impliedly found for that purpose, the evidence was not prejudicial. (6 RT 621-623.) Finally, as to the audiotape, the court expressly considered whether the evidence was cumulative and impliedly rejected the claim it was unfairly prejudicial. (7 RT 679-680.) Here, as in Cole, the trial court acted well within its broad discretion in concluding the probative value of the evidence was not substantially outweighed by the danger of undue prejudice. The 'prejudice' referred to in Evidence Code section 352 is 'evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues.' [Citation.] Graphic evidence in murder cases is always disturbing and never pleasant. 110 (People v. Cole, supra, 33 Cal.4th at p. 1197.) A court may admit even "gruesome" photographs if the evidence is highly relevant to the issues raised by the facts, or if the photographs would clarify the testimony of a medical examiner. (People v. Ramirez, supra, 39 Cal.4th at p. 453; People v. Heard, supra, 31 Cal.4th at p. 973; People v. Crittenden, supra, 9 Cal.4th at pp. 132-133; People v. Coleman (1988) 46 Cal.3d 749, 776.) The evidence was not unfairly prejudicial. Streeter concedes the jury was properly instructed that his intent to commit torture was a necessary element of both torture murder and the torture murder special circumstance, and that no proof was required that the victim was actually aware of pain or suffering. (AOB 98, citing CT 213 (CALlIC No. 8.24), and CT 236 (CALJIC No. 8.81.18.» If, as Streeter contends, the evidence of Yolanda's pain and suffering was irrelevant to prove his intent to kill and torture her, the jury simply would have dismissed it as extra information not pertinent to their ultimate decision. That is true even though the evidence was extremely powerful and emotionally charged. That type of evidence is no more likely to be misused by a properly instructed jury than any other type of evidence. The jury was probably highly disturbed by the evidence. The evidence was extremely upsetting. But either it was highly relevant and the jury considered it for its proper purpose, or the jury dismissed the evidence as upsetting but irrelevant. Streeter's argument that the dramatic sounds of Yolanda's screams in the ambulance, and the "gruesome" photographs and descriptions of her injuries, were likely to arouse the passions of the jury, is really just a claim that the trial court should have protected him from the horrific reality of what he had done. The true risk Streeter faced was not that the jury would III misuse the evidence but that they would properly use it to reach the conclusion they did. Even if the admission of this evidence was error, it would not require reversal of the convictions because it is not reasonably probable the jury would have reached a different result had the evidence been excluded. (People v. Heard, supra, 31 Ca1.4th at p. 978; People v. Scheid, supra, 16 Ca1.4th at p. 21; People v. Watson (1956) 46 Ca1.2d 818,836.) Even if the error violated Streeter's federal constitutional rights, it was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 18.) To overturn a conviction, the defendant must show that "the trial court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage ofjustice." (People v. Rodrigues (1994) 8 Ca1.4th 1060, 1124.) The evidence of Streeter's guilt was overwhelming, even in the absence of these items of evidence. Particularly since the evidence did not disclose information to the jury that was not presented in detail through the testimony of witnesses, and the evidence was no more inflammatory than the testimony of the witnesses, it is not reasonably probable that the admission of the evidence affected the jury's verdict, and any error was harmless beyond a reasonable doubt. (People v. Cole, supra, 33 Ca1.4th at p. 1199 [finding the admission of nine photographs of the victim's bums and injuries was not error, but would be harmless under either standard].) Extensive evidence was presented detailing Streeter's violent, abusive relationship with Yolanda, in which he terrorized her, controlled her, alienated her from her family, acted violently in front of her children, raped her, and prevented her from seeking help. (8 RT 768-770, 10 RT 974-978, 10 RT 996-999.) When Yolanda finally planned and executed her dangerous escape, extensive evidence showed Streeter hunted her down, going from one member of her family to the next, angrily threatening to kill 112 them one by one and to make Yolanda pay for leaving him, as he pounded their homes and property with guns and rocks to make his point. (lORT 1023-1035.) Once he found Yolanda, he carried out his threat in a horrific, catastrophic act of fiery rage. He poured gasoline on Yolanda's car where her disabled young niece was trapped inside, but she was heroically saved by the immediate response of Yolanda's 13-year- old son. (6 RT 526-527, 8 RT 756-757, 8 RT 769-770.) Then Streeter lit Yolanda on fire. All this in the middle of the afternoon, in the middle of a parking lot filled with people and children who watched as flames shot up 15 feet in the air from Yolanda's body. (6 RT 510-512, 523-524, 547, 552-553, 555,590-591.) Yolanda's children watched her bum. (6 RT 525-526, 539, 556-557, 7 RT 687-689, 8 RT 770.) Her skin seared and melted and charred as she screamed for her children and then begged to be killed. (7 RT 672,687- 690.) Streeter's plans were thought out to the last detail; to torture Yolanda and cause her death by fire while protecting himself from a fate of eternal burning by making sure his own death occurred at someone else's hands. (7 RT 633,636,653-654,661,758-759.) Evidence of the extreme pain and suffering Yolanda endured was highly relevant evidence of Streeter's intent to cause such pain and suffering. The trial court acted well within its discretion in admitting the evidence, and in light of the overwhelming evidence of Streeter's guilt, any error was harmless. V. THE ADMISSION OF YOLANDA'S DECLARATION IN SUPPORT OF A TEMPORARY RESTRAINING ORDER DID NOT VIOLATE THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT Streeter contends the admission of Yolanda's declaration in support of a restraining order against him violated the Confrontation Clause of the Sixth Amendment to the United States Constitution. (AOB 104-117.) The rule of forfeiture by wrongdoing prevents Streeter from raising this 113 challenge because Streeter killed Yolanda with the intent of making her unavailable as a witness. If the trial court erred in admitting Yolanda's declaration, the error was harmless beyond a reasonable doubt in both the guilt and penalty phases of Streeter's trial, because the declaration merely corroborated events that were fully presented to the jury through other admissible evidence, the declaration described events that were wholly separate from the charged incident, and the declaration was relevant only to establish Yolanda's fear of Streeter and his motive and intent for committing the crime, which were otherwise established by overwhelming evidence. A. Relevant Facts On August 14, 1998, the People filed a motion to admit a declaration filed by Yolanda in an application for a restraining order against Streeter, in which Yolanda set forth incidents in which Streeter had violently abused her. The People argued the statements were admissible pursuant to Evidence Code section 137022 and that the evidence was relevant. (1 CT 103-109.) 22 At the time of Streeter's trial, Evidence Code section 1370 provided, "(a) Evidence of a statement by a declarant is not made inadmissible by the hearsay rule if all the following conditions are met: ~ (1) The statement purports to narrate, describe or explain the infliction or threat of physical injury upon the declarant. ~ (2) The declarant is unavailable as a witness pursuant to Section 240. ~ (3) The statement was made at or near the time of the infliction or threat of physical injury. Evidence of statements made more than five years before the filing of the current action or proceeding shall be inadmissible under this section. (4) The statement was made under circumstances that would indicate its trustworthiness. ~ (5) The statement was made in writing, was electronically recorded, or made to a law enforcement official. ~(b) For purposes of paragraph (4) of subdivision (a), circumstances relevant to the issue of trustworthiness include, but are not limited to, the following: ~ (1) Whether the statement was made in contemplation of pending or (continued... ) 114 Streeter orally opposed the motion on the grounds that admission of the declaration would violate the Evidence Code and the Confrontation Clause. (3 RT 204-205.) On August 24, 1998, the motion was granted. (1 CT 114,3 RT 207-211.) The declaration was admitted at trial. It stated, On December 30th, 1996, Howard went crazy. He took my braids and wraped (sic) them around his hand. He had a very very tight grip on them. He kept pulling and pulling on my braids so hard he pulled my hair out of my head. When I would scream he told me to shut up and put his hand on my neck. All of this because I wouldn't have sex with him. When my daughter came to see what was happening he told her to leave, he said if she didn't leave she could stand there and watch. He would start drinking and get realy (sic) mean. He push (sic) me out the house and lock the door. He would throw 'things at me. One time he held me down because I wouldn't give him my bank card. He would push me around. He would call me bitches and hores (sic.) One time we went to Knotts Berry Farm he told me if I didn't leave with him, he would beat my ass and every one around us heard. Some times he would make me give him my money and he would make me have sex with him. (1 CT 108-109; Ex. 21.) (... continued) anticipated litigation inwhich the declarant was interested. ,-r (2) Whether the declarant has a bias or motive for fabricating the statement, and the extent of any bias or motive. ,-r (3) Whether the statement is corroborated by evidence other than statements that are admissible only pursuant to this section. ,-r (c) A statement is admissible pursuant to this section only if the proponent of the statement makes known to the adverse party the intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings in order to provide the adverse party with a fair opportunity to prepare to meet the statement." 115 B. The Rule Of Forfeiture Prevents Streeter From Raising A Confrontation Clause Challenge The Sixth Amendment Confrontation Clause provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." (Crawfordv. Washington (2004) 541 U.S. 36 (124 S.Ct. 1354, 158 L.Ed.2d 177].) Prior to the decision in Crawford, the admission of an unavailable witness's out of court statement did not violate the Confrontation Clause if it had adequate indicia of reliability, meaning it fell within a firmly rooted exception to the hearsay rule or bore particularized guarantees of trustworthiness. (Ohio v. Roberts (1980) 448 U.S. 56 [100 S.Ct. 2531, 65 L.Ed.2d 597].) Crawford overruled Roberts and held, "Where testimonial evidence is at issue, ... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." (Crawford v. Washington, supra, 541 U.S. at p. 68.) The declaration at issue is testimonial. Testimony is typically "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." (Crawford v. Washington, supra, 541 U.S at p. 51, citing Webster, An American Dictionary of the English Language (1828).) An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. (Crawford v. Washington, supra, 541 U.S. at p. 51.) Crawford left for another day an effort to spell out a comprehensive definition of "testimonial," but its analysis made it clear certain types of statements were testimonial. (Id. at p. 68.) Examples of those classic types of testimonial statements include ex parte in court testimony or its functional equivalent, such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross examine, or similar 116 pretrial statements that declarants would reasonably expect to be used prosecutorially. (Crawfordv. Washington, supra, 541 U.S. atpp. 51-52.) Here, Yolanda Buttler's statement under penalty of perjury, made for the purpose of obtaining a judicial order against Streeter, is a solemn declaration akin to an affidavit and is therefore testimonial. Streeter does not appear to have had an opportunity to cross examine Yolanda about the contents of her declaration. In People v. Price (2004) 120 Cal.App.4th 224, a domestic violence case, the trial court admitted evidence of statements made by the victim to police officers. The victim refused to testify at the defendant's trial so she was found to be unavailable, and the trial court applied the then controlling law of Ohio v. Roberts and found the statements sufficiently reliable that their admission did not violate the Confrontation Clause. Crawford was decided while the defendant's appeal was pending, and the Court of Appeal requested briefing on the applicability of Crawford. (Id. at p. 237.) The parties agreed that Crawford applied to the case, based on the general rule that even a nonretroactive decision governs cases that are not yet final when the decision is announced. (Id. at pp. 238-239.) The question confronted by the Court of Appeal was whether Evidence Code section 1370, under which the victim's statements were admitted, survived the decision in Crawford. Reasoning that a statute must be construed in a manner that is consistent with applicable constitutional provisions and seeking to harmonize the Constitution and the statute, the court construed Evidence Code section 1370 along with Crawford and held, "we interpret the trustworthiness prong of subdivision (a)(4) of that statute to require a prior opportunity to cross-examine the declarant." (Id. at p. 239.) The court found the defendant not only had the opportunity for cross examination, but vigorously exercised that opportunity at his preliminary ~earing. (Ibid.) 117 In this case, nothing in the record suggests that Yolanda was actually subjected to cross examination regarding the contents of her declaration, and there is no evidence that Streeter was given an opportunity to cross- examine her. Streeter points out his own testimony that he was never served with the restraining order and was unaware of it until the time of trial. (AOB 108.) There was no evidence contradicting his testimony to indicate that he was served, or that he was informed of his right to a hearing on the matter. But that does not end the inquiry. Of course, Yolanda was unavailable to testify at Streeter's trial because she was dead. Streeter killed her, and by causing her unavailability with the intent ofpreventing her testimony, he forfeited his rights under the Confrontation Clause of the United States Constitution. Crawford criticized the Roberts test as allowing a jury "to hear evidence, untested, by the adversary process, based on a mere judicial determination of reliability" thus replacing "the constitutionally prescribed method of assessing reliability with a wholly foreign one." However, the Court emphasized that [i]n this respect, it is very different from exceptions to the Confrontation Clause that make no claim to be a surrogate means of assessing reliability. For example, the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds; it does not purport to be an alternative means of determining reliability. See Reynolds v. United States, 98 U.S. 145, 158-159 (1879). (Id. at p. 2955, italics added.) In Reynolds, the Supreme Court asserted: The Constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if a witness is absent by his own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away. The Constitution does not 118 guarantee an accused person against the legitimate consequences of his own wrongful act. It grants him the privilege of being confronted with the witnesses against him; but ifhe voluntarily keeps the witnesses away, he cannot insist on his privilege. If, therefore, when absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert that his constitutional rights have been violated. (Reynolds v. United States (1879) 98 U.S. 145, 158.) The rule has its foundation in the maxim that no one shall be permitted to take advantage of his own wrong; and, consequently, if there has not been, in legal contemplation, a wrong committed, the way has not been opened for the introduction of the testimony. (Id. at p. 159; see also United States v. Cherry (10th Cir. 2000) 217 F.3d 811, 819-820 [a defendant may be deemed to have waived his or her confrontation clause rights if a preponderance of the evidence establishes, among other things, that he or she participated directly in planning or procuring the declarant's unavailability through wrongdoing].) In Giles v. California (2008) _ U.S. _ [128 S.Ct. 2678, 171 L.Ed.2d 488] the United States Supreme Court made it clear that the rule of forfeiture only applies when the defendant's wrongful actions were conducted for the purpose of making the witness unavailable. In Giles, the defendant shot and killed his ex-girlfriend outside her grandmother's home. He claimed the shooting was in self-defense. Prosecutors introduced a statement made by the victim to police approximately three weeks before the shooting. Police had responded to a domestic violence call and found that the victim had been crying. She told the officers that the defendant had accused her of having an affair, they had argued, and he grabbed her shirt, lifted her off the floor and began choking her. She said she broke free and he punched her in the face and head, and when she broke free again, he held a knife three feet from her and told her he would kill her if she cheated agam. These statements were admitted pursuant to Evidence Code section 119 1370 over the defendant's objection. The Court of Appeal upheld the conviction and the California Supreme Court affirmed, because Crawford had expressly recognized the doctrine of forfeiture by wrongdoing. (Crawford v. Washington, supra, 541 U.S. at p. 2682.) The United States Supreme Court reversed. It held the theory of forfeiture by wrongdoing applied when the defendant engaged in conduct designed to prevent the witness from testifying. The matter was remanded for the state courts to consider whether the defendant had the required intent. (Id. at p. 2693.) It is noteworthy that the United States Supreme Court in Giles remanded the matter for a determination of whether the defendant's conduct was designed to prevent the victim from testifying. The Court did not rule out the possibility that the doctrine of forfeiture would apply if additional facts were developed revealing the defendant acted with the required intent. Those facts are present here. 23 In describing the relevant considerations in the unique context of domestic violence, the Supreme Court noted that while the Confrontation Clause applies equally to all types of crimes, the context of domestic violence is relevant to a detetmination of whether a defendant acted with the purpose of preventing a witness's testimony. 23 Giles did not set forth any particular quantum ofproof required for a finding that a defendant acted with the intent of making a witness unavailable. Nor did it imply that such an intent had to exist to the exclusion of all others, or even that it be the defendant's primary intent in committing the wrongful act. In fact, the Court's discussion, set forth below, suggests that an abusive relationship which is characterized by isolating the victim and preventing her from reporting abuse to authorities is sufficient in itself to establish an intent to make the victim unavailable when such a relationship culminates in murder. The evidence here established exactly that situation. 120 Acts of domestic violence often are intented to dissuade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions. Where such an abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution - - rendering her prior statements admissible under the forfeiture doctrine. Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify. (Crawford v. Washington, supra, 541 U.S. at p. 2693.) In contrast to Giles, where remand was necessary for the development of evidence on the aforementioned issues, both the guilt and penalty phase record here contain ample evidence of the type the Supreme Court deemed "highly relevant to this inquiry." During both phases of the trial, there was extensive testimony from Yolanda Buttler's children and family members about Streeter's violent acts against Yolanda spanning the last year of their relationship, and her bloody scalp and hair loss after the December 30th incident. Streeter dissuaded Yolanda and her children from seeking outside help. Lawanda Johnson testified that although she witnessed a horrible act of violence against her mother on December 30th, and such acts happened continuously over the last year of Streeter and Yolanda's relationship, she did not call the police because she had done so in the past, and this caused Streeter to become angrier and escalated the abuse. (10 RT 996-997 (guilt phase); 19 RT 1937-1939, 1948 (penalty phase.)) Lawanda testified that Streeter pulled the phone cord out of the wall so they would not be able to call the police, and that when she had called the police in the past, Streeter would stay home from work and watch every move they made. She did not 121 want that to happen because they had already planned an escape while Streeter was expected to be at work. (19 RT 1948-1949 (penalty phase.» Lucinda Buttler testified that Streeter did not allow Yolanda to talk to her family, so when Streeter was at work, Yolanda would call Lucinda and Lucinda would call her right back so as to prevent the phone bill from showing the call. (10 RT 1004-1011 (guilt phase); 10 RT 2119-2120 (penalty phase).) Patrick testified that he went with his mother to Chuck E. Cheese that day because he was afraid for her and wanted to protect her. (8 RT 767-771 (guilt phase) 19 RT 2072-2073 (penalty phase.» At the penalty phase, Lucinda testified Streeter would do things to Yolanda's car to prevent her from leaving the apartment. (19 RT 2121.) This case had all the characteristics identified in Giles; an extremely abusive relationship in which Streeter isolated Yolanda and prevented her from seeking outside help, with conduct designed to prevent testimony to police officers or cooperation in a criminal prosecution. Streeter committed his final act of murder because Yolanda had escaped, and she had turned against him by seeking protection. The record contains sufficient evidence to conclude that Streeter killed Yolanda with the intent to prevent her from being a witness. The doctrine of forfeiture thus prevents Streeter from asserting his rights under the Confrontation Clause. C. Any Error In Admitting The Declaration Was Harmless Beyond A Reasonable Doubt Trial errors in violation of the federal constitution require reversal unless they are harmless beyond a reasonable doubt. This standard applies to violations of the Confrontation Clause. (Harrington v. California (1969) 395 U.S. 250, 288 [89 S.Ct. 1726,23 L.Ed.2d 284], citing Chapman v. California, supra, 386 U.S. at p. 18.) Assuming arguendo the admission of Yolanda Buttler's declaration violated the Confrontation Clause, Streeter's conviction and death sentence should nonetheless be affirmed because the 122 error was hannless. The declaration merely corroborated events that were fully presented to the jury through other admissible evidence, the declaration was relevant only to establish Yolanda's fear of Streeter and his motive and intent for committing the crime which were otherwise established by overwhelming evidence, the declaration described events that were wholly separate from the charged incident, and the jury was instructed about the limited use of the evidence. Where wrongfully admitted evidence is cumulative, and the evidence of a defendant's guilt overwhelming, a Confrontation Clause error may be hannless. (Harrington v. California, supra, at pp. 287-288.) That is undeniably the case here. All the statements made by Yolanda in the declaration were thoroughly described to the jury through live witnesses. The most egregious events were described in great detail by eyewitnesses who testified about the events themselves and the injuries Yolanda sustained. Lawanda provided far more vivid detail about the events set forth in the declaration than the declaration itself. Lawanda testified that Streeter threatened Yolanda, pushed Yolanda around and threw stuff at her. She identified herself as the daughter referred to in the restraining order application, which bears her mother's signature. Lawanda testified about the events referenced in the restraining order. It was after midnight and she woke up to her mother screaming. Streeter was pulling her mother's hair and dragging Shavonda by her leg brace in the presence of Little Howie. Yolanda was yelling at Streeter to stop because Little Howie was watching. Yolanda was screaming as Lawanda came to see what was happening. Streeter told Lawanda, "if you want to watch, then I'll just pull harder." Lawanda stopped watching because Yolanda began screaming louder. Streeter did not stop. He got on top of Yolanda and tried to do something sexually to her. He was on top of her and both their pants were down. He 123 did not care that Little Howie was present. Shavonda woke up but she was too scared to get up. Streeter tortured Yolanda for hours. The next day, Yolanda's head was sore on the back and the sides. These incidents happened over the course of the last year of Streeter and Yolanda's relationship. Lawanda testified she knew about all of the incidents mentioned in the restraining order. (10 RT 993-999 (guilt), 19 RT 1937- 1949 (penalty).) Other witnesses provided further detail about the events that occurred in December. Lucinda Buttler, Yolanda's sister, testified that Yolanda told her Streeter was abusive during the last two years of their relationship, and that Yolanda told her about the incidents in the restraining order. She witnessed Streeter push Yolanda out the door when Yolanda did not want to leave their mother's house after her father's funeral. (10 RT 1004-1011 (guilt); 20 RT 2131 (penalty).) During the guilt phase, Quentin Buttler, Yolanda's brother, testified that he observed and photographed blood, scars and scabs on Yolanda's head in December 1996 which Yolanda said had occurred when Streeter beat her up and pulled her hair out. (10 RT 974-975.) Yolanda told her siblings about the beatings and they agreed to help her move and tried to convince her to move in with them to protect her. (10 RT 974-975.) Quentin testified that he advised Yolanda to seek the restraining order after she told him what Streeter had been doing. (10 RT 974-975.) Quentin testified Yolanda told him she was scared and she wanted to leave Streeter because he was beating her. She was so afraid she refused to live with her siblings so she and her children stayed in a motel to make her feel safer. (10 RT 977-980.) The declaration merely corroborated the detailed testimony of these witnesses. The declaration described events wholly separate from the charged incident, and all of this background evidence was relevant only to 124 the extent it showed Streeter's malice and intent at the time he committed the charged crime. The jury was so instructed. During the trial, certain evidence was admitted for a limited purpose and you're not to consider that evidence for any other reason beyond that purpose. Evidence was offered and received concerning the contents of a declaration and made by the deceased, Yolanda Buttler, made in connection with the issuing of a restraining order by a court against the defendant. This evidence was received for the limited purpose of showing intent and/or malice at the time of the killing of Yolanda Buttler. You are admonished that you are not to consider this evidence as showing that the defendant is a bad person, of bad character, prone to commit acts of violence or to show that he committed other offenses on these prior occasions. (11 RT 1111-1112.) Moreover, at the guilt phase trial, the prosecutor went to great lengths to make sure none of the evidence of Streeter's prior conduct would be misused by the jury. At the beginning of his closing argument during the guilt phase, the prosecutor said, And I know we've put on a lot of evidence that may make the defendant sound like a bad guy. But you should not think of him as a bad guy. In making your decision, you should follow the law and don't just convict him because you may not like him, may not think he's a good guy. (11 RT 1063.) Finally, considering the overwhelming evidence against Streeter, there is no reasonable doubt that the same result would have been reached had the declaration not been admitted. Extensive evidence was presented at both phases of the trial detailing Streeter's violent, abusive relationship with Yolanda, in which he terrorized her, controlled her, alienated her from her family, acted violently in front of her children, and prevented her from 125 seeking help. (8 RT 768-770,10 RT 974-978,10 RT 996-999 (guilt), 19 RT 1937-1939, 1942-1944,20 RT 2119-2121, 2124 (penalty.) When Yolanda finally planned and executed her dangerous escape, extensive evidence showed Streeter hunted her down, going from one member of her family to the next, angrily threatening to kill them one by one and to make Yolanda pay for leaving him, as he pounded their homes and property with guns and rocks to make his point. (10 RT 1023-1035 (guilt), 19 RT 1947- 1948,1960-1971,2005-2016,2018,20 RT 2124-2130 (penalty.) Once he found Yolanda, he carried out his threat in a horrific, catastrophic act of fiery rage. He poured gasoline on Yolanda's car where her disabled young niece was trapped inside, who was heroically saved by the immediate response of Yolanda's 13-year-old son. (6 RT 526-527,8 RT 756-757,8 RT 769-770 (guilt), 19 RT 2069-2070, 2075-2076 (penalty.)) Streeter wanted to ruin Yolanda's life because she had ruined his. (24 RT 2561- 2562 (penalty.) Then he lit her on fire. All this in the middle of the afternoon, in the middle of a parking lot filled with people and children who watched as flames shot up 15 feet in the air from Yolanda's body. (6 RT 510-512, 523-524, 547, 552-553, 555, 590-59l(guilt), 19 RT 2064- 2065,2068,21 RT 2173-2182,2186,24 RT 2566 (penalty.)) Her children watched her bum. (6 RT 525-526, 539, 556-557, 7 RT 687-689,8 RT 770 (guilt), 19 RT 2076-2079,21 RT 2186. (penalty.)) Her skin seared and melted and charred as she screamed for her children and then begged to be killed. (7 RT 672, 687-690 (guilt), 19 RT 1990-2003 (penalty.)) His plans were thought out to the last detail; to torture Yolanda and cause her death by fire while protecting himself from a fate of eternal burning by making sure his own death occurred at someone else's hands. (7 RT 633,636,653-654,661, 758-759 (guilt), 20 RT 2108, 2112-2113 (penalty.) 126 The judgment against Streeter was unaffected by the admission of Yolanda's declaration. His conviction and death sentence should be affirmed VI. STREETER'S CONVICTION FOR FIRST DEGREE MURDER WAS SUPPORTED BY SUBSTANTIAL EVIDENCE Streeter contends his conviction for first degree murder was not supported by sufficient evidence of any of the three theories offered by the prosecution. For this reason, he claims, the jury was improperly instructed on each of those three theories. (AOB 117-147.) Streeter is wrong. Substantial evidence supports his conviction on all three theories; that the murder of Yolanda was deliberate and premeditated, that Streeter carried out his plan to murder Yolanda by lying in wait, and that he committed the murder by means of torture. The standard of appellate review of-the sufficiency of the evidence to support a jury verdict is settled. "In assessing a claim of insufficiency of the evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence - that is, evidence that is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Ca1.3d 557, 578.) ... The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Ca1.4th 764, 792.) '''Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, notthe appellate court[,] which must be convinced of the defendant's guilt beyond a reasonable doubt. '''If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.'" [Citations.]'" (Id. at pp. 792-793.)" (People v. Rodriguez (1999) 20 Ca1.4th 1, 11.) (People v. Story (2009) 45 Ca1.4th 1282, 1296.) 127 The standard of review for challenges to the sufficiency of the evidence is the same under the California and the federal constitutions. (Jackson v. Virginia (1979) 443 U.S. 307,314 [99 S.Ct. 2781, 61 L.Ed.2d 560]; People v. Cole, supra, 33 Ca1.4th at pp. 1158, 1212.) Streeter correctly notes that the issue of instructional error as it pertains to each of the three theories of murder involves essentially the same inquiry. (AGB 118.) A trial court must instruct the jury on every theory that is supported by substantial evidence, that is, evidence that would allow a reasonable jury to make a detennination in accordance with the theory presented under the proper standard of proof. (People v. Cole, supra, 33 Ca1.4th at p. 1206, citations omitted.) The trial court's decision regarding jury instructions is reviewed de novo, following a detennination as to the sufficiency of the evidence. Stated differently, we must detennine whether a reasonable trier of fact could have found beyond a reasonable doubt that defendant committed murder based on the [relevant] theory. (Ibid., citations omitted.) Streeter was convicted of murder in the first degree. Murder is the unlawful killing of a human being with malice aforethought. (Pen. Code, §187, subd. (a).) Murder that is willful, deliberate and premeditated, or which is perpetrated by means of lying in wait or by torture, is murder of the first degree. (Pen. Code, §189.) The jury was instructed on the law of first degree murder generally, as follows: Every person who unlawfully kills a human being with malice aforethought is guilty of the crime of murder in violation of section 187 of the Penal Code. A killing is unlawful if it is neither justifiable nor excusable. 128 In order to prove this each (sic) crime following elements must be proved: One, a human being was killed; two, the killing was unlawful; and three, the killing was done with malice of (sic) aforethought. Malice may be either express or implied. Malice is express when there is a manifested - - when there is manifested an intention unlawfully to kill a human being. Malice is implied when the killing resulted from an intentional act; the natural consequences of the act are dangerous to human life; and the act was deliberately perfonned with the knowledge of the danger to, and with conscious disregard for, human life. When it is shown that a killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought. The mental state constitutes - - constituting malice aforethought does not necessarily require any ill will or hatred of the person killed. The word "aforethought" does not imply deliberation or lapse of considerable time. It only means that the required mental state must precede rather than follow the act. (11 RT 1118-1119, 1 CT 209, CALJIC No. 8.10.) The jury was also instructed on the lesser included offenses of second degree murder and voluntary manslaughter. (11 RT 1122-1126, 1 CT 214, 218, CALJIC Nos. 8.30,8.42.) The prosecutor explain~d the three theories of first degree murder during his closing argument. In this case you have thrre choices, three paths to first degree murder. The first choice would be premeditated and deliberate murder, like I have just kind of explained here. 129 We don't have the Felony Murder Rule here, but we do have something like it, and I am going to cross it out. We do have "Lying in Wait Murder." L.I.W. for lying in wait. I will express or explain it to you in a minute. It is another way to get to first degree. Or torture murder is another way. So there are three paths to first degree murder. 1. Premeditated, deliberate. 2. Lying in wait, and 3. Torture murder. You don't have to have all three of these by any means. You can have just one of them and get to first degree murder. (11 RT 1067-1068.) A. Deliberate and Premeditated Murder A murder that is premeditated and deliberate is murder in the first degree. (Pen. Code, § 189.) "Premeditated" means "considered beforehand," and "deliberate" means "formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action." (People v. Mayfield (1997) 14 Ca1.4th 668,767, quoting CALJIC No. 8.20 (5th ed. 1988.) An intentional killing is premeditated and deliberate "if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse." (People v. Stitely (2005) 35 Ca1.4th 514, 543.) This Court has explained that the reflection need not take place over a particular period of time. The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity, and cold, calculated judgment may be arrived at quickly." (People v. Mayfield, supra, 14 Ca1.4th at p. 767, quoting People v. Thomas (1945) 25 Ca1.2d 880, 900.) The jury was instructed on premeditated, deliberate murder as follows: 130 All murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice of (sic) aforethought is murder of the first degree. The word "willful" as used in this instruction means intentional. The word "deliberate" means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. The word "premeditate" means considered beforehand. If you find that the killing was preceded and accompanied by a clear deliberate intent on the part of the defendant to kill, which was a result of deliberation and premeditation, so that it is -- so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree. The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated. The time will vary with different individuals under varying circumstances. The true test is not in the duration of time, but rather the extent of the reflection. A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it includes an intent to kill, is not deliberation and premeditation so as to fix an unlawful killing as murder of the first degree. (11 RT 1119-1120, 1 CT 211, CALJIC No. 8.20.) Streeter claims the evidence was insufficient to establish a premeditated, deliberate killing. (AGB 122-129.) Where an appellate court reviews the sufficiency of the evidence to support a jury's finding of premeditation, the reviewing court need not be convinced beyond a reasonable doubt that the defendant premeditated the murder; the relevant inquiry is whether any rational trier of fact could have been so persuaded. (People v. Lucero (1988) 44 Cal.3d 1006, 1020; see also People v. Wharton (1991) 53 Ca1.3d 522,546.) 131 A reviewing court typically considers three kinds of evidence to determine whether a finding of premeditation and deliberation is adequately supported: preexisting motive, planning activity, and manner of killing. (People v. Stitely, supra, 35 Ca1.4th at p. 543; People v. Anderson (1968) 70 Ca1.2d 15,26-27.) However, these factors "are not exclusive, nor are they invariably determinative" (People v. Combs (2005) 34 Ca1.4th 821, 850), and they "need not be present in any particular combination to find substantial evidence of premeditation and deliberation." (People v. Stitely, supra, 35 Ca1.4th at p. 543; People v. Silva, supra, 25 Ca1.4th at pp. 345, 368.) The aforementioned three factors serve to guide an appellate court's assessment of whether the evidence supports an inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse. (People v. Bolin (1998) 18 Ca1.4th 297,331-332.) In fact, the method of killing alone can sometimes support a conclusion that the evidence sufficed for a finding of premeditated, deliberate murder. (People v. Memro (1995) 11 Ca1.4th 786, 863-864.) In conducting this analysis, a reviewing court draws all reasonable inferences necessary to support the judgment. (People v. Stitely, supra, 35 Ca1.4th at p. 543.) The evidence in all three categories was overwhelming. Streeter had a clear and classic motive for murdering Yolanda; she had left him, and taken their child. He wanted her back, and when she refused, he wanted revenge. He planned every detail of the murder, including arranging for the care of their son, and arranging for his own death at the hands of police. The manner of killing and the circumstances surrounding the murder 132 provide compelling evidence that Streeter reflected and deliberated on his intentions prior to killing Yolanda. 1. Substantial Evidence Of Motive Demonstra tes Premeditation and Deliberation While motive is not required to support a conviction for first degree murder (People v. Orozco (1993) 20 Cal.App.4th 1554, 1567) and '''raJ senseless, random, but premeditated, killing supports a verdict of first degree murder'" (Ibid., quoting People v. Thomas (1992) 2 Ca1.4th 489, 519), there was substantial evidence Streeter here had a clear and classic motive for killing Yolanda. 24 Streeter was angry that she had left him, and that she had betrayed him by turning to her family for assistance and support. He was angry that he could not convince her to give him another chance, and he wanted revenge. The evidence revealed that Yolanda told her siblings about the beatings and they helped devise a plan for her to move out while Streeter was working. (9 RT 974-975.) Yolanda detailed prior incidents of violence in a restraining order application. (9 RT 974-975, Ex. 21.) Lucinda Buttler testified that Streeter did not like Yolanda to talk on the phone or visit, so they talked secretly. Over the past two years, Yolanda told Lucinda she wanted to leave Streeter, and she said that he was abusive during the last year. Lucinda helped Yolanda to move. Lucinda testified that Streeter threatened to kill members of their family one by one when he was trying to find Yolanda and Little Howie. (9 RT 1004-1010.) Patrick testified that Yolanda and the children left Streeter and went into hiding in Victorville. (8 RT 761-762.) Streeter began calling the 24 The jury was instructed that 'although motive was not an element of the crimes charged in the case, presence of motive may tend to establish the defendant's guilt, and absence of motive may tend to show the defendant is not guilty. (11 RT 1115.) 133 house quite often. When Yolanda agreed to meet Streeter at Chuck E. Cheese, Patrick went along to try to protect her. (8 RT 767-768.) By stipulation, the parties agreed Patrick would testify that Yolanda was nervous because Streeter had been calling to get back together with her. (8 RT 771.) Victor Buttler testified Streeter pounded on his door in the middle of the night, broke the windows of his wife's van, and threatened that people in the family were going to start dropping like flies if Victor did not tell Streeter where Yolanda was. Streeter was carrying a gun when he came to Victor's house. (9 RT 1026, 1034.) Streeter called and threatened Victor over the next several weeks. (9 RT 1030.) Edward Jasso testified that as Streeter was fighting with Yolanda, he called her a "fucking bitch." (6 RT 596.) He looked angry and called her names. (6 RT 605-606.) Streeter himself admitted that he was in shock and hurt when Yolanda left him. (9 RT 868-870.) He admitted calling Victor in Fontana, going to his house, and breaking his car windows with a bat. Then he went to Rallin's house in Rancho Cucamonga, yelled that he wanted his wife and kids back, and threw a rock through a window. (9 RT 870-873, 935.) Streeter then went to· Yolanda's sister's house in Los Angeles, and told her something bad would happen to Yolanda's family if they tried to keep his family from him. (9 RT 874, 935.) Streeter returned to Fontana but testified he was too hurt to go to work. (9 RT 874-875.) He was arrested after he called Victor, and Victor tricked him into thinking that Yolanda and Little Howie were there. (9 RT 875-877.) Streeter testified that when he was released from jail, he did not know where Yolanda and the children were. He lost his apartment. When he finally found Yolanda he told her he wanted her back but she would not give him a second chance. (9 RT 882.) During the two to three weeks 134 between their initial meeting and the meeting at Chuck E. Cheese, Streeter called Yolanda almost daily to tell her he wanted her back, but she refused. He told her that if she did not come back to him, he might do something to himself, and he could not live without her. (9 RT 885-887.) The foregoing constitutes substantial evidence of Streeter's motive to kill Yolanda. 2. Substantial Evidence Of Planning Activity Demonstrates Premeditation and Deliberation Even if the murder was not planned weeks and months in advance, premeditation and deliberation can occur in a brief interval, and the test is not time, but reflection, as "'[t]houghts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. '" (People v. Osband (1996) 13 Ca1.4th 622, 697, quoting People v. Memro, supra, II Ca1.4th at pp. 862-863; see also People v. Bloyd (1987) 43 Ca1.3d 333, 348.) In other words, the absence of protracted and elaborate planning activity is not fatal to finding sufficient evidence of premeditation. (People v. Mil/wee (1998) 18 Ca1.4th 96, 134.) Overwhelming evidence established Streeter planned Yolanda's murder down to the last detail, even providing for his own death at the hands of another, and making provisions for the care of his son. Fontana Police Officer Julie Hoxmeier testified she found a suicidelhomicide note in Streeter's car. (6 RT 613-618.) The note said, to mom and pop, I hate to do you gys (sic) like this but I don't like living (sic) the way I am so I don't know what to say but I love you both and I am very sorry to have to put you though (sic) this but my life is over I don't have any thing to live for any more. I know it going to cost a lot to berrie (sic) me but I am sorry I hope you both understand and I know what I did to Youlanda (sic) is womg (sice) but she don't dersive (sic) to live like me. P.S. If you can get my son Baby Howie and raise him to the best of your abbilty (sic). Tell him his dady (sic) is sorry for what I did but I will alway (sic) love him and to don't never 135 fall in love with a women (sic). Love alyaw (sic) Howie. (Ex. 5, I CT 84.) Fontana Police Officer Michael Stark testified the club locking device was secured on the steering wheel of Streeter's car, and the gas cap was laying on the bumper. (8 RT 740-742.) Streeter's suicide/homicide note concluded with Streeter asking his parents to raise Little Howie, foreshadowing his knowledge that Yolanda would soon be unavailable to raise her own son. Streeter asks this Court to draw different inferences from the note, relying on his own testimony to support the reasonableness of those inferences. Specifically, he argues that the reference to what he did to Yolanda referred to the prior incident where he pulled her braids, rather than the murder. And he claims the statement, "she don't deserve to live like me" does not mean they both deserved to die, but rather that she deserved a better life than the one he could provide. (AOB 125.) Streeter's request for this Court to accept his interpretation is in direct conflict with the standard of review, which requires a reviewing court to presume the existence of every fact in support of the judgment that the jury "could reasonably infer from the evidence." (People v. Bloyd, supra, 43 Ca1.3d at pp. 333,346-347.) The foregoing evidence demonstrates Streeter carefully planned Yolanda's murder. He wrote an apology even before he acted, and directed his parents to care for Little Howie since his expectation was that both of Little Howie's parents would soon be dead. His final words of advice to his son were to be delivered by his parents, telling Little Howie never to fall in love with a woman. 136 3. The Manner Of Killing Demonstrates Premeditation and Deliberation "[T]he method of killing alone can sometimes support a conclusion that the evidence sufficed for a finding of premeditated, deliberate murder." (People v. Memro, supra, 11 Ca1.4th at. pp. 786, 863-864.) John Robert Martinez testified that Yolanda was yelling for help as Streeter was beating her up and pulling her hair. He hit Yolanda three or four times. After he poured gasoline on Yolanda, Streeter tried to drag her to his car because he had nothing to light her with. Streeter slammed Yolanda to the ground, and then went to his car and retrieved a yellow container. He poured something from the container on to Yolanda's car and then onto her. Then he lit her on fire. (6 RT 522-543.) Anzerita Chonnay testified that she heard a couple yelling, and saw Streeter hitting Yolanda. Then she saw Streeter retrieve something from the trunk of his car and pour something, and then she saw Yolanda on fire. (6 RT 549-553.) Edward Jasso said that he saw two people he initially believed were engaged in a water fight, but then saw Streeter push Yolanda to the ground and begin hitting and kicking her. Streeter dragged Yolanda by the hair, and then he let go of her and went to his car. (6 RT 577-579, 9 RT 824- 825.) Streeter reached inside to get something and then came towards them with a lighter in his hand. Jasso tried to grab it from him but his hand slipped off Streeter's arm. Yolanda was wet from the substance Streeter had poured on her. Jasso told Streeter to get away from her. Streeter was three or four inches from Yolanda when he lit the lighter and Yolanda went up in flames right away. Jasso tried to grab Streeter but he grabbed Yolanda and his arm caught on fire. (6 RT 588-592.) Jasso testified that the events leading up to Yolanda's burning probably lasted about five minutes, but felt like 15 or 20 minutes. (9 RT 817-818, 822-827.) 137 Patrick's testimony, presented by stipulation, established that Streeter was waiting when they arrived. He grabbed Little Howie from the car and walked towards his own car. Yolanda followed and asked where he was going. They argued as Yolanda tried to get Little Howie out of Streeter's car, and Streeter pushed her away. (8 RT 768-769.) Patrick pounded on the window and yelled to Little Howie to get out. Streeter got a plastic can of gasoline from the trunk of his car. Yolanda began to run away when she saw this. (8 RT 769.) Streeter chased Yolanda and poured gas on her car, and then on Yolanda. Patrick was scared because he smelled the gas and Shavonda was in the car, so he jumped in and drove it around the comer and then ran back. (8 RT 769-770.) When he returned, the plastic can was on the ground and Streeter was hitting Yolanda who was on the ground. A man was trying to help. Yolanda got up and ran around the cars. Streeter chased her and pulled a lighter out ofhis pocket. He lit the lighter, and lit . Yolanda on fire. Streeter ran away as Yolanda was on fire. (8 RT 770.) Deputy Medical Examiner Steven Trenkle testified that Yolanda died from pulmonary failure caused by the effects of subcutaneous bums, having sustained bum injuries to 55 to 60 percent of the surface area of her body. (7 RT 624-640.) Dr. David Lee Vannix testified she sustained bum injuries to 54% of her body surface. (7 RT 666.) Firefighter Jeffrey Gordon Boyles testified that there were dozens of people in the area at the time of the burning, including children, because it happened in the parking lot of a Chuck E. Cheese establishment. Two children, including a girl about 10 years old, and a boy between five and seven years old, appeared to be Yolanda's. (7 RT 687-689.) Th~ parties stipulated that Shavonda Buttler would testify she was six years old on April 27, 1997. Streeter took Little Howie out of Yolanda's car while Shavonda was in the back seat. She had to wear leg braces. After 138 taking Little Howie out of the car, Streeter poured gasoline on the car while she was still in the back seat. (8 RT 756-757.) The manner of killing detailed in the testimony set forth above reveals that Streeter had many opportunites to consider and reflect on his actions, and he did just that. The suicide note was placed in his glove compartment before Yolanda arrived at the scene, and the gas cap had recently been placed on the bumper, indicating his plan was in place and set into motion prior to her arrival. When she got there, Streeter placed Little Howie inthe safety of his own car, to keep him safe as he put his plan into action. He beat Yolanda up to make her more vulnerable and incapacitate her, and then went back to his car to retrieve the gasoline. He poured the gasoline on her car, and then on Yolanda, and then tried to drag Yolanda to his car to get the lighter. He released her, retrieved the lighter and then chased her down and set her on fire. Each interval of time provided Streeter with an opportunity to reflect on, and abandon his plan, and each subsequent action demonstrated a premeditated and deliberate commitment to carry it out. Substantial evidence established a premeditated, deliberate murder. B. Murder Perpetrated By Means Of Lying-In-Wait To prove first degree murder premised on a lying-in-wait theory, the prosecution must prove the elements of concealment of purpose together with a substantial period of watching and waiting for an opportune time to act, and ... immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage. (People v. Stanley (1995) 10 Ca1.4th 764, 795-796; see also People v. Gurule (2002) 28 Cal.4th 557,630.) Moreover, the defendant need not strike at the first available opportunity, but may wait to maximize his position of advantage before 139 taking the victim by surprise. (People v. Hillhouse (2002) 27 Ca1.4th 469, 501.) The determination of whether the trial court properly instructed the jury regarding lying in wait, both as a theory of first degree murder and as a special circumstance, depends upon whether there was substantial evidence presented at trial to support such jury verdicts. (People v. Ceja (1993) 4 Ca1.4th 1134, 1139, fn. 1.) The jury was instructed on the law of murder perpetrated by means of lying in wait as follows: Murder which is immediately preceded by lying in wait is murder of the first degree. The term "lying in wait" is defined as a waiting and watching for an opportune time to act, together with a concealment by ambush or some other secret design to take the other person by surprise even though the victim is aware of the murder's (sic) presence. The lying in wait need not continue for any particular period of time provided that its duration is such as to show a state of mind equivalent to the premeditation or deliberation. The word "premeditation" means considered beforehand. The word "deliberation" means formed or arrived at or determined upon as a result of careful thought and weighing and considerations for and against the proposed course of action. (11 RT 1120-1121, 1 CT 212, CALJIC No. 8.25.) In People v. Cole, supra, 33 Ca1.4th at p. 1206, this Court found sufficient evidence to warrant an instruction on first degree murder by means of lying in wait where the victim told an arson investigator that she was asleep when the defendant began to pour gasoline on her. The arson investigator had concluded that the defendant poured gasoline on the victim's back while she was sleeping, and that the gasoline had dripped from her back to the floor. From this evidence, this Court held a reasonable 140 trier of fact could have found beyond a reasonable doubt that the defendant had watched and waited until the victim was sleeping and helpless before he poured the flammable liquid on her and ignited it. Therefore, substantial evidence supported the jury instruction on first degree murder by lying in wait. (People v. Cole, supra, 33 Cal.4th at p. 1206.) Here, the substantial period of watching and waiting occurred when Streeter watched and waited for Yolanda's arrival. He lured her to the restaurant under the false pretense of meeting with their son, as part of a well thought out plan to kill her. Streeter launched a surprise attack from a position of advantage, after rendering Yolanda helpless by beating her and holding her young child in his car. As Streeter acknowledges, the concealment that is required is the concealment of a defendant's true intent and purpose, not that he literally be concealed from view. (AOB 131, citing People v.Morales (1989) 48 Cal.3d 527, 554-555.) The parties agreed that if called as a witness, Patrick would testify that when they arrived at the Chuck E. Cheese restaurant, Streeter was standing there clapping his hands, and appeared nervous. Streeter grabbed Little Howie and took him to his car. (8 RT 768.) Fontana Police Officer Michael Stark testified the club locking device was secured on the steering wheel of Streeter's car, and the gas cap was laying on the bumper. (8 RT 740-742.) Streeter's detailed suicidelhomicide note was placed in the glove compartment of his car while he waited for Yolanda to arrive. (Ex. 5, I CT 84.) The note foreshadowed Streeter's expectation that both he and Yolanda would be dead by the time it was found. His plans were spelled out in that note even as he stood in front of Chuck E. Cheese awaiting Yolanda's arrival, under the pretext of reuniting with her and meeting with their son. 141 Streeter claims this was a "tragic domestic dispute that escalated out of control, rather than any kind of planned killing," and that his actions were the unplanned consequences of his anger and frustration after waiting for Yolanda for 30 to 45 minutes and believing she was not going to show up. (AOB 118-119.) Once again, Streeter's characterization of the evidence is based solely on his own testimony, which stood in stark contrast to the overwhelming, credible evidence that Streeter's actions were the manifestation of a well thought out plan. Streeter's claim is inconsistent with the standard of review, which requires a reviewing court to presume the existence of every fact in support of the judgment that the jury "could reasonably infer from the evidence." (People v. Bloyd, supra, 43 Ca1.3d at pp. 333, 346-347.)25 Substantial evidence supported Streeter's conviction on a theory of lying in wait. C. Murder Perpetrated By Means Of Torture Murder which is perpetrated by means of torture is murder of the first degree. (Pen. Code, §189; People v. Hindmarsh (1986) 185 Ca1.App.3d 334, 346.) The essential elements of murder-torture require 1) the act or acts that caused death to involve a high probability of death, and 2) an intent by the defendant to cause cruel pain and suffering for the purpose of revenge, extortion, persuasion, or any other sadistic purpose. (People v. Wiley, supra, 18 Ca1.3d at pp. 162, 168.) Murder by torture is murder committed with a willful, deliberate and premeditated intent to inflict extreme and prolonged pain. (People v. Steger (1976) 16 Ca1.3d 539, 546.) A defendant need not intend to kill the victim. The malice element may be supplied by an intentional act involving a high degree of probability of 25 Even Streeter's testimony that he arrived shortly before 4:00 for their planned 4:00 meeting, and then waited 30 to 45 minutes, conflicted with evidence that the 911 call reporting a person on fire was received at 3:21 in the afternoon (10 RT 972-973). 142 death in conscious disregard for human life. (People v. Davenport (1985) 41 Cal.3d 247,267-268.) The jury was instructed on murder perpetrated by means of torture as follows: Murder which is perpetrated by torture is murder of the first degree. The essential elements of murder by torture are: One person murders another person; the perpetrator committed the murder with a willful, deliberate and premeditated intent to inflict extreme and prolonged pain upon a living being - pardon me - upon a living human being for the purpose of revenge, extortion, persuasion or for any other sadistic purpose; and the acts or actions taken by the perpetrator to inflict extreme and prolonged pain were a cause of the victim's death. The crime of murder by torture does not require any proof that the perpetrator intended to kill his victim or of any proof that the victim was aware of pain or suffering. The word "willful" as used in this instruction means intentional. The word "deliberate" means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. The word "premeditated" means considered beforehand. (11 RT 1121, 1 CT 213, CALlIC No. 8.24.) In People v. Cole, supra, 33 Cal.4th at p. 1212, the defendant argued the evidence was insufficient to establish the intent to inflict extreme pain. Like Streeter here, the defendant in Cole argued his case fell into the "explosion of violence" category. (Ibid.; see AOB 140.) This Court rejected his claim, finding there was substantial evidence from which a jury could have found beyond a reasonable doubt the defendant had the requisite intent to inflict extreme pain. Verbal abuse and excessive drinking characterized defendant and [the victim's] five-year relationship, and all accounts indicated that they were functional alcoholics. Placed against this background, the prosecution also presented evidence that defendant was jealous and possessive of [the victim],that 143 she planned to move out of their residence without him, that she discussed battered women's shelters with [her mother's neighbor], and that defendant believed [the victim] was cheating on him. Such evidence, when considered with evidence of the manner in which defendant had poured a flammable liquid on two distinct places - on [the victim] and on the floor near the bedroom door - the resulting condition of [the victim's] body, defendant's statement to [the victim] when he ignited the fire that he hoped she burned in hell, and his statements thereafter that he was angry at her and wanted to kill her, permit an inference that defendant's purpose in setting [the victim] on fire was to inflict extreme pain. Moreover, the prosecution proved in rebuttal that, a week before the fire, defendant said he would bum the house down if [the victim] tried to leave him and that he telephoned [the victim's] mother numerous times - each time more agitated than the last-and at one point mentioned that he thought [the victim] was seeing someone else. This evidence further supported the inference that defendant intended to inflict extreme pain. (People v. Cole, supra, 33 Ca1.4th at p. 1214.) The facts in this case are almost identical to Cole. As in Cole, the evidence here established Streeter had a history of alcohol abuse and violence against Yolanda. He was possessive of her, and prevented her from contacting her family or the police. She had secretly moved away and- enlisted the assistance of family members in escaping from Streeter. (8 RT 768-770,10 RT 974-978,10 RT 996-999.) Like the defendant in Cole, Streeter poured gasoline in two distinct places - - on Yolanda, and on the car in which her six-year-old niece was trapped inside. Streeter called Yolanda a "fucking bitch" as he beat her. He telephoned Yolanda's family members and threatened them. As in Cole, this evidence was sufficient to permit an inference that the defendant's purpose in setting the victim on fire was to inflict extreme pain. (6 RT 526-527, 8 RT 756-757,769-770,10 RT 1023-1035.) It is true that the severity of a victim's wounds does not necessarily indicate an intent to torture because severe wounds may be as consistent 144 with "an explosion of violence" as with torture. (People v. Crittenden, supra, 9 Cal.4th at pp. 83,140; People v. Pensinger (1991) 52 Cal.3d 1210, 1239.) Even gruesome murder-torture convictions will not be affirmed where the evidence showed that the killing resulted from either an explosion of violence or an act of animal fury produced when inhibitions were removed by alcohol. (People v. Davenport, supra, 41 Ca1.3d at p. 268; People v. Hindmarsh, supra, 185 Cal.App.3d at p. 346.) However, the intent to torture is a state of mind which frequently must be proved by the circumstances surrounding the commission of the crime, including the nature and severity of the victim's wounds. (People v. Crittenden, supra, 9 Ca1.4th at p. 141; People v. Proctor (1992) 4 Ca1.4th 499,531.) As explained in Argument IV, supra, the actual injuries sustained by Yolanda constituted compelling evidence of Streeter's intent to inflict severe pain and suffering. This was not a case of alcohol induced fury. (See People v. Davenport, supra, 41 Cal.3d at p. 268.) In spite of Streeter's odor of alcohol and his appearance of being under the influence, Streeter's blood tested negative for drugs and alcohol. (7 RT 697-698, 702-703, 712-713, 722-723.) The callousness of Streeter's prior acts of violence against Yolanda provided additional evidence of an intent to cause tremendous pain and suffering. Quentin Buttler, Yolanda's brother, testified that he observed and photographed Yolanda's injuries following Streeter's assault on her in December. Streeter had pulled Yolanda's hair out of her head and beaten her up. Yolanda had blood, scars and scabs on her head. (9 RT 974-975, Ex. 7.) Yolanda detailed Streeter's prior acts of violence in a restraining order application. (Ex. 21.) Lawanda Johnson testified that Streeter threatened Yolanda, pushed her around and threw things at her. (9 RT 994.) Lawanda testified that on December 30th, she woke up after 145 midnight to her mother screaming. Streeter was pulling Yolanda by the hair. Streeter said, "if you want to watch, then I'll just pull harder." Yolanda began screaming louder, and Streeter did not stop even though she and Little Howie were present. Streeter sexually assaulted Yolanda and tortured her for hours. The next day, Yolanda's head was sore on the back and the sides. These kinds of incidents went on for the last year of the relationship. (9 RT 996-999.) Streeter argues his case is distinguishable from the many cases in which this Court has found sufficient evidence of an intent to cause pain and suffering. (AOB 139-145.) In People v. Proctor, supra, 4 Ca1.4th at pp. 499, 517, in addition to inflicting blows to the face and other parts of the victim's body, the defendant inflicted knife "drag" marks. This Court held the wounds revealed a slow, methodical approach to the infliction of injuries rather than sudden, explosive violence, and considered with the circumstance that the victim was prevented from escaping, this evidence established the defendant's intent to torture. (Id. at pp 531-532.) Similarly, in People v. Elliot (2005) 37 Ca1.4th 453, 467-468, this Court found that the infliction of 81 stab and slash wounds, with only three being potentially fatal, suggested a meticulous, controlled approach indicative of an intent to inflict pain. (Ibid.) Streeter also distinguishes People v. Steger, supra, 16 Ca1.3d at p. 548, in which this Court found sufficient evidence of murder by torture where the defendant bound and gagged the victim before stabbing him. (Ibid.) He cites other cases in which this Court considered the defendant's callous indifference to the victim after inflicting the lethal acts (AOB 142, citing People v. Cook (2006) 39 Ca1.4th 556, and People v. Chatman (2006) 38 Ca1.4th 344) and argues the absence of these factors in his case demonstrates the absence of an intent to inflict pain. Streeter's argument misses the point. In the first place, he is wrong to distinguish himself from those defendants who inflicted non-lethal wounds 146 prior to the infliction of lethal wounds. Streeter hit and kicked Yolanda repeatedly, forced her to the ground and dragged her by the hair before he killed her. The finding of murder-by-torture encompasses the totality of the brutal acts and the circumstances which led to the victim's death. [Citations.] The acts of torture may not be segregated into their constituent elements in order to determine whether any single act by itself caused death; rather, it is the continuum of sadistic violence that constitutes the torture. [Citation.] (People v. Proctor, supra, 4 Ca1.4th at pp. 530-531.) Secondly, while these cases make it clear that the infliction of non- lethal wounds, tying and binding a victim, and callous behavior after the infliction of a lethal wound may be sufficient to establish an intent to torture, the absence of those factors by no means implies the absence of such an intent. Cases involving similar facts are much more helpful in making this fact-specific determination. As set forth above, People v. Cole, supra, involved facts almost identical to the instant case. Similarly, in People v. Martinez (1952) 38 Ca1.2d 556, the defendant had a long history of difficulties with his wife. Much like the threats Streeter made to Yolanda's relatives, the defendant in Martinez announced that some day he would do something bad to his wife. The day before the killing he threatened her with a deadly weapon. He filled a can with gasoline, went to the victim's house, pursued her despite her frantic efforts to escape, covered her with gasoline, struck a second match after the first failed to ignite, and failed to aid in rescue attempts and actively hindered those who tried to rescue her after the fire started. This Court found the evidence sufficient to support his conviction for first degree murder on theories of premeditation, and murder by torture. (Id. at p.561.) Thus, as in Cole and Martinez, substantial evidence supported Streeter's conviction for murder by torture. 147 D. Assuming Arguendo This Court Finds Any One Of The Prosecutor's Theories Of Murder Was Not Supported By Substantial Evidence, Reversal Is Not Required Because Substantial Evidence Supported The Other Theories Assuming arguendo this Court finds any of the three theories of first degree murder were not supported by substantial evidence, reversal is not required because the remaining theories were supported by substantial evidence. If the inadequacy of proof is purely factual, ofa kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground. (People v. Guiton (1993) 4 Ca1.4th 1116, 1129.) Where this Court determines that one theory of murder is valid, it need not address the factual sufficiency of the other theories of murder that were submitted to the jury. (People v. Lewis (2008) 43 Ca1.4th 415,507.) As set forth above, substantial evidence supported each of the three theories of murder offered by the prosecution. Streeter's suicide/homicide note alone demonstrates the murder was premeditated and deliberate. But even if this Court were to find the evidence insufficient as to premeditation and deliberation, the jury's true findings on the special circumstances of lying in wait and murder by torture affirmatively demonstrate their verdict did not rest on an inadequate theory. (See People v. Aguilar (1997) 16 Ca1.4th 1023, 1034.) The judgment should be affirmed. VII. THE JURY WAS NOT REQUIRED TO UNANIMOUSLY AGREE ON THE THEORY OF FIRST DEGREE MURDER, BUT THE TRUE FINDINGS ON THE SPECIAL CIRCUMSTANCES SHOW THAT THEYDm Streeter contends his federal constitutional rights, and his state statutory and constitutional rights, were violated by the trial court's failure 148 to instruct the jury that they had to unanimously agree on the theory of first degree murder. (AGB 148-155.) Since the jury need not unanimously agree on the theory of first degree murder, Streeter's rights were not violated by the absence of a unanimity instruction. In any event, the true findings on the special circumstances of torture murder and lying in wait murder show the jury's unanimous agreement that Streeter committed first degree murder by each of these means. Streeter's jury was instructed on first degree premeditated and deliberate murder, first degree murder by torture, and first degree murder perpetrated by means of lying in wait. (11 RT 1118-1122.) The jury was also instructed, If you are convinced beyond a reasonable doubt and unanimously agree that the crime of murder has been committed by the defendant, but you are unanimously - - but you unanimously agree that you have a reasonable doubt whether the murder was of the first or second degree, you must give the defendant the benefit of that doubt and return a verdict fixing the murder as of the second degree as well as a verdict of not guilty of murder of the first degree. (11 RT 1121-1122, 1 CT 217, CALlIe No. 8.71.) Further, the jury was told, Before you may return a verdict in this case, you must agree unanimously not only as to the whether the defendant is guilty or not guilty, but also, if you should find him guilty of an unlawful killing, you must agree unanimously as to whether he is guilty of murder of the first degree or murder of the second degree or voluntary manslaughter. (11 RT 1127, 1 CT 224, CALJIC No. 8.74.) Streeter did not request an instruction that die jury unanimously agree on a theory of first degree murder. The prosecutor informed the jury that while they had to unanimously agree that Streeter committed first degree 149 murder, they need not unanimously agree on the theory of first degree murder. (11 RT 1068.) Streeter claims that lying in wait murder and torture murder have different elements than premeditated and deliberate murder, which need to be proved beyond a reasonable doubt in order to convict. (AGB 149-154.) The identical claim was rejected in People v. Cole, supra, 33 Ca1.4th at p. 1158. In Cole, the jury was instructed on first degree murder on the same theories as Streeter; premeditated, deliberate murder, murder by torture, and murder perpetrated by means oflying in wait.26 This Court summarily rejected the defendant's claim that his constitutional rights were violated by the trial court's failure to require unanimous agreement as to the theory of guilt. (Id. at p. 1221.) Streeter acknowledges that this Court has rejected this argument but "submits the issue deserves reconsideration in light of the charges and facts of this case." (AGB 148.) But Cole involved nearly identical facts; the defendant poured gasoline on the victim and then set her on fire. And Cole involved the same theories of murder at issue here. Streeter also cites Schad v. Arizona (1991) 501 U.S. 624 [111 S.Ct. 2491, 115 L.Ed.2d 555] to support his contention his due process rights were violated when the trial court failed to require unanimity as to the theory of first degree murder. (AGB 149-150.) People v. Box, supra, 23 Ca1.4th at pp. 1153, 1212, cited in Cole, supra, rejected the defendant's claim that Schad required the jury to unanimously agree on the theory of first degree murder. In Schad, the United States Supreme Court held that federal due process did not require the jury to agree on one of two alternative statutory theories of first degree murder, i.e., premeditated murder and felony 26 The jury in Cole was also instructed on a fourth theory of first degree murder, felony murder (arson.) (Ibid.) 150 murder. Although the majority agreed that due process imposes some limits on the degree to which different states of mind may be considered merely alternative means of committing a single offense, the Court did not agree on the application or extent of such limits. (Schad v. Arizona, supra, 501 U.S. at pp. at pp. 632,651,656.) In writing for the plurality in Schad, Justice Souter explained there exists no single test for determining when two means are so disparate as to exemplify two inherently separate offenses. (Id. at pp. 633-637, 643.) The relevant mental states must be considered to determine whether they demonstrate comparable levels of culpability. In addressing the culpability level of premeditated murder and felony murder, Justice Souter concluded: Whether or not everyone would agree that the mental state that precipitates death in the course of robbery is the moral equivalent of premeditation, it is clear that such equivalence could reasonably be found, which is enough to rule out the argument that this moral disparity bars treating them as alternative means to satisfy the mental element of a single offense. (Id. at pp. 642-644.) Thus, the plurality held that unanimous agreement as to the underlying theory of first-degree murder was unwarranted. (Id. at p. 645.) Similarly, the mental state that precipitates murder by tOrture and murder perpetrated by means of lying in wait could "reasonably be found" to be the moral equivalent of premeditation and deliberation. As Streeter acknowledges, torture murder requires acts causing death that involve a high probability of the victim's death, and a willful, deliberate and premeditated intent to cause extreme pain or suffering for the purpose of revenge, extortion, persuasion, or another sadistic purpose. (AOB 151, citing People v. Cook, supra, 39 Ca1.4th at pp. 566, 602.) And lying in wait murder requires concealment of purpose, together with a substantial period of watching and waiting for an opportune time to act, and immediately 151 thereafter a surprise attack on an unsuspecting victim from a position of advantage. (AOB 151, citing People v. Stanley, supra, 10 Ca1.4th at pp. 764, 795, quoting People v. Morales, supra, 48 Ca1.3d at pp. 527,557.) That is "enough to rule out the argument" that they cannot be considered as alternative means to satisfy the mens rea requirement of first degree murder. (See Schad v. Arizona, supra, 501 U.S. at pp. 642-644.) No unanimity instruction was required. In any event, any alleged instructional error in this case was harmless, as the jury's true findings on the special circumstance allegations demonstrates that it unanimously agreed that Streeter committed the crime of first degree murder on both theories of torture murder and lying in wait murder. (See, e.g., People v. Lewis, supra, 25 Ca1.4th at pp. 610, 654 [omission of unanimity instruction was, at most, harmless error where jury's true findings on robbery-murder and burglary-murder special circumstances signified unanimous agreement as to both first-degree felony murder theories.]) Streeter's conviction must be affirmed VIII. SUBSTANTIAL EVIDENCE SUPPORTS THE JURY'S TRUE FINDING ON THE SPECIAL CIRCUMSTANCE OF LYING IN WAIT Streeter contends the evidence was legally insufficient to support the jurors' true finding on the special circumstance of lying in wait. Specifically, he claims the murder was not committed "while" lying in wait, that Streeter's true concealed purpose was to take Yolanda's son and not to murder her, and the lethal act did not immediately follow the period of watchful waiting or there was no continuous flow of events from the time of waiting to the lethal acts. If the special circumstance does apply to these fact, he contends, then it is unconstitutionally vague and overbroad. (AOB 156-164.) Streeter is wrong. 152 The law governing "sufficiency of the evidence" claims is well established, and applies to special circumstance findings as well as guilty verdicts. (People v. Mayfield, supra, 14 Ca1.4th at pp. 668, 790-791.) When reviewing a claim of insufficient evidence, this Court, like all appellate courts, must view the evidence in the light most favorable to the judgment of conviction and presume in support of that judgment the existence of every fact the jury could have reasonably deduced from the evidence. (People v. Barnes (1986) 42 Ca1.3d 284,303; People v. Johnson (1980) 26 Ca1.3d 557, 576-577.) The oft-repeated rule is that, when a verdict is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, which will support it. When two or more inferences are reasonably deducible from the facts, a reviewing court is without power to substitute its deductions for those of the trier of fact. It is of no consequence that the reviewing court, believing other evidence, or drawing different inferences, might have reached a conclusion contrary to the one reached by the trier of fact. (Ibid.) To the extent the prosecution relied upon circumstantial evidence, the standard of review is the same. (People v. Bean (1988) 46 Ca1.3d 919,932; People v. Towler (1982) 31 Ca1.3d 105, 118.) Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, "it is the jury, not the appellate court, which must be convinced of the defendant's guilt beyond a reasonable doubt." (People v. Bean, supra, 46 Ca1.3d at pp. 932-933.) Indeed, if the circumstances reasonably justify the trier of fact's findings, 153 'the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.' (People v. Bean, supra, 46 Ca1.3d at p. 933, quoting People v. Hillery (1965) 62 Ca1.2d 692,702.) The standard of review mandated by the federal Constitution is the same as the state standard articulated above. That is, the critical inquiry is to determine whether the evidence could reasonably support a finding of guilt beyond a reasonable doubt. The reviewing court does not determine whether it believes that the evidence at trial established guilt beyond a reasonable doubt, but whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. (Jackson v. Virginia, supra, 443 U.S. at pp. 307, 318.) At the time of Streeter's crime, the lying in wait special circumstance required 'proof of 'an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage. ' (People v. Lewis, supra, 43 Ca1.4th at pp. 415,515, citing People v. Jurado (2006) 38 Ca1.4th 72, 119, quoting People v. Morales, supra, 48 Ca1.3d at pp. 527, 557.) At the time of ~treeter's crime, the special circumstance required that the murder be committed "while lying in wait.,,27 (Pen. Code, §190.2, 27 In March 2000, the language of the lying-in-wait special circumstance was changed to delete the word "while" and substitute the phrase "by means of." (People v. Lewis, supra, 43 Ca1.4th at p. 512, n. 25.) 154 former subd. (a)(l5); People v. Lewis, supra, 43 Ca1.4th at pp. 511-512.) The jury was instructed according to these principles. (II RT 1127-1130.) As detailed above in Argument VI, substantial evidence supported the jury's true finding on the lying in wait special circumstance. Streeter intended to kill Yolanda, as evidenced by his planning activity including the note he left for his parents, asking them to raise her son. He concealed his purpose by luring Yolanda to the restaurant under the pretext of an attempted reconciliation and familial visit. Streeter engaged in a substantial period of watching and waiting for an opportune time to act, as he filled the gasoline can and secured his car, and then stood outside of the Chuck E. Cheese restaurant awaiting Yolanda's arrival. Immediately thereafter, Streeter launched a surprise attack from a position of advantage, by snatching Yolanda's child and confining him in his car while he beat Yolanda to incapacitate her. The murder was committed "while" lying in wait because immediately following the period of watchful waiting, Streeter commenced a continuous chain of activities, which started with Streeter immobilizing Yolanda, and culminated in his lethal act of lighting her on fire. Whether there is sufficient evidence of the special circumstance of lying in wait is a highly fact specific inquiry, and substantial evidence supporting the special circumstance has been found in a wide variety of factual situations. For example, in People v. Cruz, supra, 44 Ca1.4th at p. 636, this Court found sufficient evidence of the lying in wait special circumstance based upon evidence that the defendant, who had been arrested and was in the back seat of a patrol car, discovered a fanny pack belonging to the officer and retrieved it through the seat while in handcuffs. Then he secreted the gun on the seat behind him, and waited until the officer got back into the car and had driven two miles to a secluded area of highway before he removed the weapon from its hidden location and shot 155 the officer in the back of the head. (People v. Cruz, supra, 44 Ca1.4th at pp. 679-680.) In People v. Gutierrez (2002) 28 Ca1.4th 1083, this Court found sufficient evidence of lying in wait murder and the lying in wait special circumstance where, viewing the evidence in the light most favorable to the judgment, it established the defendant planned a trip with the intent to harm two victims. He waited in a van for several hours near the house for the victims to arrive home. When they arrived home, he surprised them by wearing masks to gain entry into the home by ruse. Once inside, he subdued one victim by having a companion hold a gun to her head while he went to the bathroom and shot the other victim in the shower. This evidence "plainly established" that defendant intentionally murdered the victim under circumstances that included a concealment of purpose, a substantial period of watching and waiting for an opportune time to act, and immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage. (Id. at p. 1150.) The facts of Streeter's case are similar to those in People v. Sims (1993) 5 Ca1.4th 405. In Sims, this Court found sufficient evidence of the special circumstance of lying in wait where the defendant and his companion purchased a clothesline and a knife, then rented a motel room, telephoned a pizza restaurant and lured the pizza delivery person to the room on the pretext of ordering a pizza, concealing their true intent to rob and murder him. They waited for his arrival, overpowered him, bound him and gagged him, and left him either dead or to drown in a tub of water. (Id. at p. 433.) Here, too, Streeter lured Yolanda to meet with him under a pretext, prepared the instruments of her killing prior to her arrival, waited for her to show up, and immediately overpowered her, maximizing his position of advantage and committing the lethal act. 156 Substantial evidence existed from which a rational juror could conclude Streeter concealed his murderous purpose by convincing Yolanda to meet with him to try to reconcile with her and to visit with Little Howie. As Streeter acknowledges, the concealment that is required is the concealment of a defendant's true intent and purpose, not that he literally be concealed from view. (AGB 131, citing People v. Morales, supra, 48 Ca1.3d at pp. 554-555.) Patrick testified that Streeter had been calling Yolanda, claiming he wanted to reconcile with her. (8 RT 767-768,771.) Streeter testified that he had convinced Yolanda to bring the children to meet with him once before, and the meeting had occurred without incident. (9 RT 885-886.) Streeter himself testified that he told Yolanda he wanted to get back together with her, and when she refused, he told her he might do something to himself, so she agreed to meet him at Chuck E Cheese. (9 RT 882, 887.) In People v. Jurado, supra, 38 Ca1.4th at p. 72, this Court found substantial evidence the defendant concealed his murderous purpose where a rational juror could infer that he formed the intent to kill when he obtained a cord to be used for strangulation, then lured the victim into the back seat of a car and positioned himself in the seat behind her in order to catch her off guard and strangle her. (Id. at p. 120.) Here, similarly, a rational juror could conclude Streeter formed the intent to kill Yolanda some time before he wrote the suicide/homicide note, and then prepared the instruments of her killing as he waited for Yolanda's arrival, having lured her to the restaurant for the pretextual reason of facilitating a visit with their child. Streeter's actions in concealing his purpose are similar to the defendant's actions in People v. Carasi, supra, 44 Ca1.4th at p. 1263, where this Court upheld the validity of the lying in wait special circumstance on evidence that the defendant lured his ex-wife and her mother to a secluded 157 spot on a pretext, by inviting them to meet him for a Mother's Day dinner. (People v. Carasi, supra, 44 Ca1.4th at p. 1310.) Streeter argues that while the evidence supports an inference that he concealed his true purpose, there is no evidence his concealed purpose was a murderous one. Rather, he claims, Streeter's pretextual request of Yolanda asking for a visit with his son concealed his true purpose of taking his son from her. (AOB 157.) Streeter's theory is so far-fetched, he did not even present it to the jury. The testimony of both Patrick and Streeter made it clear that Streeter had the opportunity to leave after he secured Little Howie in his car, but he did not leave, weighing heavily against his claim that his true concealed purpose was to take his son. (8 RT 769,9 RT 895.) More importantly, the note Streeter left in his glove compartment foreshadowed his true concealed purpose to kill Yolanda. (Ex. 5, 1 CT 84.) Even assuming there was evidentiary support for Streeter's inference that his true concealed purpose was to take Little Howie from Yolanda, that does not change the result because this Court does not reweigh the evidence. Indeed, if the circumstances reasonably justify the trier of fact's findings, 'the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. ' (People v. Bean, supra, 46 Ca1.3d at p. 933, quoting People v. Hillery, supra, 62 Ca1.2d at pp. 692,702.) Clearly, the evidence cited above reasonably justified the jury's finding that Streeter's concealed purpose was to murder Yolanda. The evidence also established that Streeter engaged in a substantial period of watching and waiting. A defendant who lures his victim into a vulnerable position by creating or exploiting a false sense of security 158 engages in the watching and waiting conduct contemplated by the lying in wait provisions. (See People v. Stevens (2007) 41 Ca1.4th 182, 203.) "Watchful" does not require actual watching; it can include being alert and vigilant in anticipation of the victim's arrival in order to take him or her by surprise. (People v. Sims, supra, 5 Ca1.4th at p. 433.) Fontana Police Officer Michael Stark testified the club locking device was secured on the steering wheel of Streeter's car, and the gas cap was perched on the bumper. (8 RT 740-742.)· This evidence leads to a reasonable inference that Streeter was at the restaurant long enough to secure his car and remove gasoline from his gas tank to fill up the container he had in his trunk. The parties agreed that if called as a witness, Patrick would testify that when they arrived at the Chuck E. Cheese restaurant, Streeter was standing there clapping his hands, and appeared nervous. (8 RT 768.) Streeter himself testified that he waited for Yolanda and the children for 30 to 45 minutes, and became angry and frustrated. (9 RT 891.) In People v. Lewis, supra, this Court found sufficient evidence of a substantial period of watching and waiting as to two of the three murder victims. As to one victim, this Court concluded the jury reasonably could have found the victim was targeted because he had money, that defendant waited until the victim emerged into an alley, then surprised him by quickly riding up in a car and shooting him. This was so even though the victim was not shot immediately upon entering the alley alone; instead, he was shot after a period of time during which he waited for his wife and then walked her to her car. As to the second victim, this Court found substantial evidence of watching and waiting where the victim and her husband stopped at the mall to run an errand. The husband went into the mall while the victim stayed in the car to tidy up the back seat. The defendant admitted he went to the mall 159 with the intent to rob a jewelry store, but after observing the victim he decided it would be easier to rob her. The defendant waited until the victim was doing something in the back seat and at that point, he took her by surprise, forced his way into the car and drove it away. In contrast, as to the third victim, this Court found there was insufficient evidence of a substantial period of watching and waiting where eyewitness accounts of the aftermath of the shooting were not helpful on the lying in wait issue, the defendant's statements admitted demanding the victim's keys before the shooting and taking property from the victim after the shooting, but supplied no evidence that the victim was followed for that purpose, there was no admissible evidence that the property found in the defendant's possession was anything more than an afterthought that arose after the confrontation with the victim, and the physical evidence of the manner of killing did not supply the missing "watching and waiting" evidence. (People v. Lewis, supra, 43 Cal.4th at p. 508.) Here, as detailed above, Streeter was waiting for Yolanda in the front of the restaurant and clapping his hands nervously when she arrived. His steering wheel was secured with a locking device, the gas cap was on top of the bumper, and his car was parked in the parking lot, leading to the reasonable conclusion Streeter engaged in a substantial period of watching and waiting prior to Yolanda's arrival. Substantial evidence also supported a reasonable inference that immediately after the period of watching and waiting, Streeter launched a surprise attack from a position of advantage. Lying in wait does not require that a defendant launch a surprise attack at the first available opportune time. [Citations.] Rather, the defendant 'may wait to maximize his position of advantage before taking his victim by surprise.' (Id. at p. 510.) 160 Where a victim knows the defendant, she may not immediately suspect she is in danger upon seeing him, but may subsequently be taken by surprise. (People v. Moon (2005) 37 Ca1.4th 1,24.) Here, immediately after watching and waiting, when Yolanda arrived, Streeter maximized his position of advantage before launching a surprise attack. He immobilized Yolanda both by taking her young son and placing him in his car, and then beating Yolanda to the ground in order to physically restrain her while he doused her with gasoline and lit her on fire. Patrick testified that when they arrived at Chuck E. Cheese, Streeter grabbed Little Howie and took him to his car. (8 RT 768.) The parties stipulated that if called to testify, .Shavonda would testify that when they arrived at Chuck E. Cheese, Streeter took Little Howie out of her mother's car. (8 RT 756-757.) John Robert Martinez testified that Streeter beat Yolanda and slammed her to the ground before going back to his car to get the gasoline and returning to pour it on her. (6 RT 523.) Streeter poured gas on Yolanda's car and Yolanda, and then tried to drag her to his car to get something to light her with. (6 RT 529, 535.) Anzerita Chonnay also saw Streeter beat Yolanda and push her down before retrieving the gasoline and lighting her on fire. (6 RT 551-553, 566-567.) Edward Jasso testified that he saw Streeter push Yolanda to the ground and hit her and kick her. (6 RT 577-578.) Streeter dragged Yolanda by her hair, then went to his car and retrieved a lighter. He chased Yolanda and lit the lighter, setting her on fire. (6 RT 586-591.) Streeter contends the evidence was insufficient to support a lying in wait special circumstance, because at the time of Streeter's trial, the prosecutor had to prove the killing was contemporaneous with, or followed directly on the heels of, the watchful waiting, meaning the murder occurred with no "cognizable interruption" following the period of lying in wait. (AOB 159, citing Domino v. Superior Court (1982) 129 Cal.App.3d 1000, 161 1011.) He claims the prosecutor's theory included a cognizable interruption, and in support of this argument, he identifies seven "stages" through which this "domestic dispute" allegedly escalated. (AOB 161.) At the time of Streeter's trial, the special circumstance lying in wait was distinguishable from lying in wait first degree murder because lying in wait murder required only that the murder be perpetrated "by means of' lying in wait, while the special circumstance required that the killing take place during the period of concealment and watchful waiting. (People v. Lewis, supra, 43 Ca1.4th at pp. 511-512, citing Pen. Code, §§ 189, 190.2, fonner subd. (a)(15), People v. Gutierrez, supra, 28 Ca1.4th at pp. 1083, 1149; People v. Sims, supra, 5 Ca1.4th at p. 434.) This Court noted in Lewis that it had not defined the parameters of a murder committed during the period of concealment and watchful waiting. However, this Court approved the meaning supplied to that phrase by CALlIC No. 8.81.15 (1989 rev.), which states, Thus, for a killing to be perpetrated while lying in wait, both the concealment and watchful waiting as well as the killing must occur during the same time period, or in an uninterrupted attack commencing no later than the moment the concealment ends. If there is a clear interruption separating the period of lying in wait from the period during which the killing takes place, so that there is neither an immediate killing nor a continuous flow of the uninterrupted lethal events, the special circumstance is not proved. (People v. Lewis, supra, 43 Ca1.4th at p. 512.) Streeter's jury was instructed with this language. (11 RT 1127-1129, 1 CT 234, CALlIC No. 8.81.15.) The language of this instruction comes from Domino v. Superior Court, supra, 129 Ca1.App.3d at p. 1000. There, the victim was captured while the defendants were lying in wait but was not killed until hours later. The Court of Appeal held the term "while" gave meaning to the distinction 162 between first degree murder and circumstances calling for the death penalty. (Domino, supra, 129 Cal.App.3d at p. 1011.) As stated in Lewis, supra, this Court has sometimes assumed the viability of the Domino formulation, and other times declined to decide whether Domino's interpretation of the special circumstance is correct, choosing instead to conclude that the standard was satisfied on the facts of a particular case. (People v. Lewis, supra, 43 Cal.4th at p. 513, citations omitted.) The Domino standard is satisfied where the lying in wait is followed immediately by a "murderous and continuous assault" that leads to the victim's death. (People v. Morales, supra, 48 Ca1,3d at pp.527, 558.) There is no cognizable interruption between the lying in wait and the killing where there is "no lapse in the culpable mental state of the defendant." (People v. Carpenter (1997) 15 Cal.4th 312, 389, superceded by statute on other grounds as stated in Verdin v. Superior Court (2008) 43 Ca1.4th 1096, 1106.) Clearly, the Domino standard is met on these facts. Streeter's case is similar to People v. Morales, supra, 48 Cal.3d at p. 558. There, the defendant climbed in the back seat of a car driven by his accomplice. The victim was in the front seat. Defendant had armed himseif with a belt, a knife and a hammer. He had told his girlfriend he was going to "hurt" a girl. Once the car drove to a more isolated location, defendant reached over the seat and attempted to strangle the victim. The belt broke and he began to beat her with a hammer. Her cries for help indicated she was taken by surprise and was previously unaware of any plan to harm her. This Court found the Domino standard was clearly met, because although the victim survived the initial attempt to strangle her and beat her to death, there was no "cognizable interruption" between the period of watchful waiting and the commencement of the murderous and continuous assault which 163 ultimately caused her deat~. (People v. Morales, supra, 48 Cal.3d at p. 558.) The same is true here. Streeter's murderous and continuous assault commenced with Streeter maximizing his position of advantage, and then engaging in a continuous assault that ended in Yolanda's death. As set forth above, Streeter took steps to immobilize Yolanda immediately upon her arrival. Eyewitness Edward Jasso was asked about the chronology of events leading up to Yolanda being ignited. He testified that the passage of time between each discrete event was minutes or seconds, and then acknowledged, "It felt like it was happening for a long time, but I guess I was wrong." (9 RT 822-826.) He clarified that it was probably five minutes but it felt like 15 or 20 minutes. (9 RT 827.) As set forth above, the chronology following Yolanda's arrival was corroborated by several witnesses. Notably, even Streeter's own testimony failed to establish any break in the chain of events that led to her death. He did not drive away with his son, or attempt to persuade Yolanda to stay with him, or do anything other than incapacitate her and act upon his plan to kill her from the moment she arrived on the scene, and carry his plan out to the end. Streeter also contends if this Court finds the lying in wait special circumstance is supported by sufficient evidence, then the special circumstance is unconstitutional as applied to his case. Specifically, he argues a finding of sufficient evidence would require this Court to conclude that the requirement of a concealment of purpose does not have to be a murderous purpose and need not be contemporaneous with watchful waiting, that the watchful waiting does not have to be for an opportune time to attack, and that there does not have to be a surprise attack immediately after the period of watching and waiting. Such a construction, he claims, fails to narrow the class of persons eligible for the death penalty. (AOB 163-164.) This Court has previously rejected this claim with respect to 164 analogous facts and circumstances. (People v. Sims, supra, 5 Ca1.4th at p. 434.) Streeter's claim is simply another way to state his facial attack on the statute, which should be rejected for the reasons stated in Argument X. (See People v. Lewis, supra, 43 Ca1.4th at p. 517.) Finally, assuming arguendo this Court finds insufficient evidence of the lying in wait special circumstance, reversal is not required because the error was harmless. The jury properly considered another valid special circumstance finding, all the facts and circumstances underlying Yolanda's murder, and Streeter's history in determining death to be the appropriate penalty. There is no likelihood the jury's consideration of the mere existence of the lying in wait special circumstance tipped the balance towards death. This Court has frequently rejected similar contentions. (See People v. Mungia (2008) 44 Ca1.4th 1101, 1139.) IX. THE JURY WAS PROPERLY INSTRUCTED ON THE LYING IN WAIT SPECIAL CIRCUMSTANCE Streeter contends his state and federal constitutional rights were violated because the lying in wait instructions omitted key elements, and were erroneous, internally inconsistent, and confusing. He further claims that additional instructions, given at the prosecutor's request, misled and confused the jury and lightened the prosecutor's burden of proof. (AOB 164-177.) Streeter is wrong. The jury was instructed pursuant to CALJIC No. 8.81.15 as follows: To find that the special circumstance, referred to inthese instructions as murder while lying in wait, is true, each of the following facts must be proved: One, th~ defendant intentionally killed the victim; and two, the murder was committed while the defendant was lying in wait. The term "while lying in wait" within the meaning of the law of special circumstances is defined as a waiting and watching for an opportune time to act, together with a concealment by ambush or by some other secret design to take 165 the person by surprise even though the victim is aware of the murderer's presence. The lying in wait need not continue for any particular period of time provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation. Thus, for a killing to be perpetrated while lying in wait, both the concealment and watchful waiting as well as the killing must occur during the same time period, or in and (sic) uninterrupted attack commencing no later than the concealment ends. If there is a clear interruption separating the period of lying in wait during the period in which the killing takes place, so that there is neither an immediate killing nor a continuous flow of the uninterrupted act - - uninterrupted lethal act, the special circumstance is not proved. A mere commencement of purpose concealment of purpose is not sufficient to meet the requirement of concealment set forth in this special circumstance. However, when a defendant intentionally murders another person under circumstances which includes a concealment of purpose, a substantial period of watching and waiting for an opportune time to act, and immediately thereafter a surprise attack on an unsuspecting victim from a position of advantage, the special circumstance murder lying in wait has been established. The word "premeditated" means considered beforehand. And the word "deliberation" means formed at or arrived at or determined upon as a result of the careful thought and weighing of considerations for and against the proposed course of conduct. (11 RT 1129-1130, 1 CT 234-235, CALJIC No. 8.81.15.) The jury was also given three special instructions offered by the prosecution. Streeter's objection to two of the instructions was overruled. The court explained the purpose of the special instructions was to clarify the distinction between first degree murder and the special circumstance of 166 lying in wait. The instructions were given in addition to, not instead of, the instructions setting forth the elements of both the crime of lying in wait murder, and the elements of the special circumstance. (CT 231-233, 11 RT 1059.) The jury was instructed as follows: You have received an instruction that defines murder which is immediately preceded by lying in wait as murder in the first degree. The following instruction concerns the special circumstance - - pardon - - a special circumstance of murder committed while lying in wait. There is a distinction. While you may find that this murder was of the first degree because it was immediately preceded by lying in wait, it does not necessarily follow that the murder was committed while the defendant was lying in wait so as to constitute a special circumstance. The special circumstance requires that the killing be committed while lying in wait, whereas first degree murder by lying in wait requires that the killing be immediately preceded by a period of lying in wait. In the instructions regarding lying in wait, both for first degree murder and for the special circumstance, the term "concealment" is used. Actual physical concealment is not required. Concealment of purpose is sufficient. Physical concealment from, or actual ambush of, the victim is not necessary and is not necessarily an element of the offense of lying in wait murder. The use of the word "while" in the special circumstance of lying in wait means that the killing must take place during the period of concealment and watchful waiting or the lethal act must begin at and flow continuously from the moment the concealment and watchful waiting ends. If a cognizable interruption separates the period of lying in wait from the period during which the killing takes place, the special circumstance does not exist. A brief interval of time between the killer's first appearance and the acts inflicted which caused the killing do not 167 necessarily negate a surprise attack, so long as there is a continuous flow in the culpable state of mind between the period of watchful waiting and the homicide. (11 RT 1127-1129, 1 CT 231-233.) Streeter raises a threefold challenge to these instructions. First, he claims the instructions failed to explain to the jury that the concealed purpose must be a concealed intent to kill, and the watchful waiting must be waiting for a time to launch a lethal attack. Second, he claims the instructions eliminated the requirement of immediacy. Third, he claims the additional language added at the request of the prosecutor further complicated the matter, confusing the issue and lightening the prosecutor's burden of proof. Streeter's claim can be quickly rejected. As this Court has repeatedly held, CALJIC No. 8.81.15 correctly sets forth the elements of the special circumstance oflying in wait. (People v. Stevens, supra, 41 Ca1.4th at pp. 182,203-204; People v. Cruz, supra, 44 Ca1.4th at pp. 636, 678.) Regarding the special instructions, those instructions accurately stated the law, and worked to Streeter's advantage by emphasizing the greater degree of proof required for a true finding on the special circumstance than for first degree murder on a theory of lying in wait. This Court has rejected challenges to CALJIC No. 8.81.15 on the very grounds raised by Streeter. In People v. Bonilla, supra, 41 Ca1.4th at p. 313, the defendant argued that CALJIC No. 8.81.15 provided contradictory and confusing descriptions of the time elements associated with the special circumstance, and provided contradictory and confusing descriptions of the concealment elements associated with the special circumstance. (Id. at p. 333.) This Court expressly rejected those claims and found the instruction correctly conveyed the elements of the special circumstance. (Ibid.) 168 Here, as in Bonilla, CALlIC No. 8.81.15 conveyed to the jury that the concealed purpose must be a concealed intent to kill, and that the watchful waiting had to be for a time to launch a lethal attack. Streeter argues the evidence supported a conclusion that his true concealed intent was to take his son, and the instructions as given would have permitted a true finding if the jury found that to be so. (AGB 166-167.) Streeter is wrong. Even assuming arguendo the evidence supported an inference that he concealed his purpose to take his son, the jury necessarily found that he also concealed his intent to kill Yolanda. Those purposes are not mutually exclusive, the jury instructions required the latter, and therefore, there was no error. A similar argument was rejected in People v. Carpenter, supra, 15 Ca1.4th at p. 312. There, the defendant argued the evidence established only an intent to rape his victim, and not a concealed intent to kill, and that the instructions on lying in wait murder and the lying in wait special circumstance failed to require a concealed intent to kill. This Court stated that although the defendant did intend to rape, the two intents are not mutually exclusive, and the evidence established the defendant's dual intent. Further, this Court found the instructions made it clear that more than an intent to rape was necessary for lying in wait murder, even where the instruction on the special circumstance contained additional language that if the defendant merely intended to rape during a period of watchful waiting and concealment, the special circumstance was not established, and the instruction on lying in wait murder omitted that language. (Id. at p. 390.) Similarly, in People v. Sims, supra,S Ca1.4th at pp. 405, 434, this Court upheld the instruction against a challenge that it suggested that a concealment of purpose satisfied the concealment element. CALlIe No. 8.81.15 adequately informed the jury that the concealed purpose had to be 169 an intent to kill, and the watchful waiting had to be for an opportune time to commit a lethal act. As to Streeter's second claim, that the instruction failed to convey the requirement of immediacy, that claim has also been rejected by this Court. (People v. Michaels (2002) 28 Ca1.4th 486, 516.) CALJIC No. 8.81.15 clearly conveyed the immediacy requirement. At the time of Streeter's crime, the special circumstance required that the murder be committed "while lying in wait." (Pen. Code, §190.2, former subd. (a)(1 5); People v. Lewis, supra, 43 Ca1.4th at pp. 511-512.) CALJIC No. 8.81.15 informed the jury they had to find an intentional killing, and also that the lying in wait need not continue for any particular period of time as long as it was sufficient to show a state of mind equivalent to premeditation and deliberation; that the concealment, watchful waiting and killing must occur in the same time period, or in an uninterrupted attack commencing no later than the moment concealment ends. The jury was further told that if there was a clear interruption between the period of waiting and the killing, so that there was neither an immediate killing nor a continuous flow of uninterrupted lethal events, the special circumstance was not proved. (11 RT 1129-1130, 1 CT 234.) Considered as a whole, this instruction made it clear that the concealed purpose had to be a murderous one, the watching and waiting had to be for a time to launch a lethal attack, and the killing had to occur immediately. In addition, the special instructions given by the court at the prosecutor's request emphasized the very principles Streeter contends were lacking in CALJIC No. 8.81.15, and worked to his advantage. Special instruction 1 reminded the jury there was a distinction between lying in wait murder and the special circumstance of lying in wait, and that the special circumstance required a finding that the killing was committed "while" lying in wait. (CT 231.) Special instruction 3 elaborated on that 170 distinction by correctly stating the law, defining the term "while," and explaining that if a "cognizable interruption" separated the period of lying in wait from the time period in which the killing occurred, the special circumstance did not exist. (CT 233.) Streeter challenges the final paragraph of special instruction 3, claiming that "it is not clear to what culpable mental state the instruction refers," and that the jury would not have understood the surprise attack had to occur contemporaneous with the watchful waiting. (AOB 171-172.) A single jury instruction is not to be considered in isolation, but must be viewed in the context of the overall charge. Even when there is an ambiguity, inconsistency or deficiency in a jury instruction, there is no due process violation unless there is a reasonable likelihood the jury misapplied the instruction in a manner that violates the Constitution. (People v. Huggins, supra, 38 Ca1.4th at pp. 175, 192.) Streeter's argument disregards the entire first paragraph of instruction 3, and the other instructions which directly addressed both the requirement that the culpable mental state was an intent to kill, and the requirement that the killing occur during the period of watchful waiting. The arguments of counsel are relevant to determining whether the jury misunderstood the instructions. (Ibid., citing People v. Kelly (1992) 1 Ca1.4th 495, 526-527.) During closing argument, the prosecutor explained the difference between lying in wait murder, and the lying in wait special circumstance. For the special circumstance, he explained, "You kick it up a notch." (11 RT 1075-1083.) The prosecutor clearly explained the relevant principles at length, stating: To find a special circumstance, it is a little tougher, as I say, more stringent requirements. You have to in addition to this over here, you have to have intent to kill and you have to commit the murder while lying in wait. 171 Can you see the distinction? It's a little bit different. You notice in the first one, murder under lying in wait, in the first degree, you don't have that "while" requirement; you just have immediately preceding stuff ... Here we have these requirements: The defendant intentionally killed the victim; the murder was committed while the defendant was lying in wait. And the term "while lying in wait" within the meaning of the law of special circumstances now is defined as a waiting and watching for an opportune time to act together with a concealment by ambush or, like the other instruction, or by some other secret design, take the other person by surprise, even though the victim is aware of the murderer's presence ... Pretty much the same thing in both instructions, right, except that it has to be "while" lying in wait for the special. And I have a couple of other instructions to show you there. For a killing to be perpetrated while lying in wait, both the concealment and the watching and waiting, as well as the killing, must occur during the same time period or in an uninterrupted attack commencing no later than the moment concealment of the purpose ends. In other words, he didn't start telling or showing his real purpose until he started beating up on Yolanda, going and getting the gas and so forth. While I'm out here, I'm just going to go (unintelligible) all the while knowing it was not his intent to do otherwise . . . If there is a clear interruption separating the period of lying in wait from the period during which the killing takes place, so that there is neither immediate killing nor a continuous flow of the uninterrupted lethal events, the special circumstance is not proved. A mere concealment of purpose is not sufficient to meet the requirement of concealment set forth in this special circumstance. However, when a defendant intentionally murders another person under circumstnaces which include, 1, a concealment of purpose; 2, a substantial period of watching and waiting for an opportune time to act; and 3, immediately thereafter a surprise attack. on an unsuspecting victim from a 172 position of advantage, the special circumstance of murder while lying in wait has been is established.... (11 RT 1077-1080.) The prosecutor further explained, Use of the word "while" in the special circumstance of lying in wait means that the killing must take place during the period of concealment - - remember the words of purpose - - and watchful waiting or the lethal acts must begin and flow continuously from the moment of concealment of the purpose and watchful waiting ends. If a cognizable interruption separates the period of lying in wait from the period during which the killing takes place, the special circumstance does not exist. (11 RT 1080-1081.) The prosecutor then went on to explain the Domino case, and the factual distinctions between that case and the facts in this case. You know, we talked about having a surprise attack. So long as there is a continuous flow in the culpable state of mind between the homicide and the period of watchful waiting. Again, makes sense, right? In this case we have that situation. We have Mr. Streeter in his lying in wait, his waiting and watching for a time, to be able to commit this attack, and he does certain other things before he actually finally gets the gas and does it. Always a continuous flow of what he had in mind. He started off thinking he was going to kill her. Brought the gas. Had the lighter ready to do it. Wrote the note. So his culpable state of mind is a continuous flow until he finally did h· . h?t IS act, ng t.... (11 RT 1081-1082.) The prosecutor's argument fully addressed the distinction between lying in wait murder and the lying in wait special circumstance. It made clear that Streeter's concealed intent was the intent to kill Yolanda, that the watchful waiting was undertaken for that purpose, and that there was a 173 continuous flow of the murderous assault immediately after the period of watchful waiting. Finally, if there was any error in the instruction, it was harmless. Under state law, the instructional error is harmless if there is no reasonable probability the outcome of the defendant's trial would have been different had the jury been properly instructed. (People v. Cole, supra, 33 Cal.4th at pp. 1158, 1208-1209, citing People v. Flood (1998) 18 Ca1.4th 470, Cal. Const., art. VI, §13, People v. Watson, supra, 46 Ca1.2d at pp. 818, 836- 837.) Under federal law, the error requires reversal unless it can be shown beyond a reasonable doubt that the error did not contribute to the verdict. (People v. Cole, supra, 33 Ca1.4th at pp. 1208-1209, citing Neder v. United States (1999) 527 U.S. 1,8-16 [119 S. Ct. 1827, 144 L. Ed. 2d 35]; Chapman v. California, supra, 386 U.S. at p. 18; People v. Sengpadychith (2001) 26 Ca1.4th 316, 324; People v. Flood, supra, 18 Ca1.4th at pp. 502- 504.) As set forth extensively in Argument VIII, the overwhelming evidence established that Streeter concealed his purpose to kill Yolanda when he lured her to the Chuck E. Cheese restaurant on the pretext of reconciling and visiting his son. He prepared the instruments of her murder and then watched and waited for Yolanda to arrive. Upon her arrival, he immediately maximized his position of advantage by immobilizing her in two different ways; by taking her son from her, and by physically beating her while he commenced his lethal assault. The jury was properly instructed on the special circumstance of lying in wait. Assuming arguendo the instructions were erroneous, the error was harmless. Finally, if this Court reverses the lying in wait special circumstance, the judgment of death should nonetheless be affirmed, as the penalty jury properly considered another valid special circumstance finding, all the facts and circumstances underlying Yolanda's murder, and Streeter's 174 history. There is no likelihood the jury's consideration of the mere existence of the lying in wait special circumstance tipped the balance towards death. This Court has frequently rejected similar contentions. (See People v. Mungia, supra, 44 Ca1.4th at pp. 1101,1139.) X. THE LYING IN WAIT SPECIAL CIRCUMSTANCE IS CONSTITUTIONAL Streeter contends the lying in wait special circumstance is unconstitutional, because it fails to narrow the class of death eligible defendants and fails to meaningfully distinguish death eligible defendants from those not death eligible. '(AGB 178-187.) Specifically, Streeter argues this Court's expansive interpretation of the elements of the lying in wait special circumstance have eliminated any distinction between the special circumstance and premeditated, deliberate murder. (AGB 179-182.) He also claims this Courts' decisions have weakened the distinction between lying in wait murder and the lying in wait special circumstance. (AGB 182-186.) Finally, he argues the special circumstance fails to provide a meaningful basis for distinguishing death eligible defendants from those not death eligible. (AGB 186-187.) Streeter's claims have consistently been rejected by this Court, and he offers no reason for a different result in his case. In People v. Stevens, supra, 41 Ca1.4th at p. 182, this Court rejected the claim raised by Streeter that the special circumstance fails to distinguish between premeditated, deliberate murder and the lying in wait special circumstance. This Court stated, In distinction with premeditated first degree murder, the lying-in-wait special circumstance requires a physical concealment or concealment of purpose and a surprise attack on an unsuspecting victim from a position of advantage. [Citations.] Thus, any overlap between the premeditation element of first degree murder and the durational element of the Iying-in-wait special circumstance does not undermine the 175 narrowing function of the special circumstance. [Citation.] Moreover, contrary to Justice Moreno's concurring and dissenting opinion, concealment of purpose inhibits detection, defeats self-defense, and may betray at least some level of trust, making it more blameworthy than premeditated murder that does not involve surprise. [Citation.] (People v. Stevens, supra, 41 Ca1.4th at pp. 203-204; see also People v. Gutierrez, supra, 28 Ca1.4th at pp. 1083, 1148-1149.) In People v. Gutierrez, supra, 28 Ca1.4th at pp. 1148-1149, this Court rejected the claim raised by Streeter that the special circumstance fails to distinguish between lying in wait murder and the lying in wait special circumstance. This Court stated, [M]urder by means of lying in wait requires only a wanton and reckless intent to inflict injury likely to cause death. [] In contrast, the lying-in-wait special circumstance requires "an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage ...." [] Furthermore, the lying-in-wait special circumstance requires "that the killing take place during the period ofconcealment and watchful waiting, an aspect of the special circumstance distinguishable from a murder perpetrated by means of lying in wait, or following premeditation and deliberation. The distinguishing factors identified in Morales and Sims that characterize the lying-in-wait special circumstance constitute "clear and specific requirements that sufficiently distinguish from other murders a murder committed while the perpetrator is lying in wait, so as to justify the classification of that type of case as one warranting imposition of the death penalty." (People v. Gutierrez, supra, 28 Ca1.4th at pp. 1148-1149, internal citations omitted, emphasis in original; see also People v. Cruz, supra, 44 Ca1.4th at pp. 636, 678.) 176 In People v. Nakahara (2003) 30 Ca1.4th 705, 721, this Court rejected the claim raised by Streeter that the special circumstance fails to meaningfully distinguish between death eligible defendants and non-death eligible defendants. This Court stated, Defendant next argues that the lying-in-wait special circumstance (§ 190.2, subd. (a)(15)) is invalid for failure to sufficiently narrow the class of persons eligible for death and to provide a meaningful basis for distinguishing the few cases in which death is imposed from the many cases in which it is not. (See Furman v. Georgia (1972) 408 U.S. 238, 313 [92 S.Ct. 2726,2764,33 L.Ed.2d 346] (conc. opn. of White, 1.).) We have repeatedly rejected this contention, and defendant fails to convince us the matter warrants our reconsideration. (See People v. Hillhouse [(2002) 27 Ca1.4th 469,510; People v. Frye (1998) 18 Ca1.4th 94, 1029, overruled on other grounds in People ·v. Doolin (2009) 45 Ca1.4th 390, 421; People v. Crittenden (1994) 9 Ca1.4th 83, 154-156; People v. Morales, supra, 48 Ca1.3d at pp. 557-558 [257 Cal.Rptr. 64, 770 P.2d 244].) (People v. Nakahara, supra, 30 Ca1.4th at p. 721; see also People v. Greier (2007) 41 Ca1.4th 555,617-618; People v. Moon, supra, 37 Ca1.4th at p. I, 44; People v. Carpenter, supra, 15 Ca1.4th at pp. 312,419.) Streeter's contention must therefore be rejected, as this Court has previously considered the issue and Streeter presents no new or persuasive reason to revisit the matter. XI. SUBSTANTIAL EVIDENCE SUPPORTS THE JURY'S TRUE FINDING ON THE SPECIAL CIRCUMSTANCE OF TORTURE MURDER Streeter contends the evidence was legally insufficient to support the true finding on the special circumstance of torture murder. (AOB 188- 189.) Streeter is wrong. The standards for reviewing a claim of insufficient evidence previously discussed in Arguments VI and VIII apply here. Thus, this Court must review the evidence in the light most favorable to the judgment 177 to detennine whether there is substantial evidence to support the jury's true finding on the torture murder special circumstance. (Jackson v. Virginia, supra, 443 U.S. at pp. 307,318; People v. Johnson, supra, 26 Ca1.3d at pp. 557, 576-578.) To prove the torture-murder special circumstance, the jury must find the murder was intentional and involved the infliction of torture. (Pen. Code, §190.2, subd. (a)(18); People v. Chatman, supra, 38 Ca1.4th at pp. 344, 391.) As he did in Argument VI, Streeter claims the evidence was insufficient to establish he intended to torture Yolanda. For the same reasons set forth in Argument VI, respondent disagrees. [T]he requisite torturous intent is an intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any other sadistic purpose. A premeditated intent to inflict prolonged pain is not required. (People v. Elliot, supra, 37 Ca1.4th at pp. 453, 479.) In People v. Cole, supra, 33 Ca1.4th at p. 1158, this Court upheld a jury's true finding on the special circumstance of murder by torture where the issue was sufficiency of the evidence to show an intent to inflict extreme pain. The defendant murdered his girlfriend Mary Ann Mahoney by pouring gasoline on her while she was in bed and lighting her on fire. (Id. at p. 1172.) There was a history of strife between the couple, who were functional alcoholics. (Id. at pp. 1171, 1214.) Before the murder, Mary Ann planned to move out. (Id. at p. 1214.) The defendant was jealous and possessive, and believed Mary Ann was cheating. (Ibid.) This Court held that this evidence - in conjunction with (1) the manner in which defendant had poured a flammable liquid on two distinct places, i.e., on Mary Ann and on the floor near the bedroom door, (2) the resulting condition of Mary Ann's body, (3) the defendant's statement to Mary Ann when he ignited the fire that he hoped she burned in hell, and (4) his statements thereafter that he was angry at her and wanted to kill her - pennitted "an inference that 178 defendant's purpose in setting Mary Ann on fire was to inflict extreme pain." (People v. Cole, supra, 33 Ca1.4th at p. 1214; see also People v. Baker (2002) 98 Cal.App.4th 1217, 1223-24 [reaching a similar conclusion].) The facts in this case are almost identical to Cole. As in Cole, the evidence here established Streeter had a history of alcohol abuse and violence against Yolanda. He was possessive of her, and prevented her from contacting her family or the police. She had secretly moved away and enlisted the assistance of family members in escaping from Streeter. (8 RT 768-770,10 RT 974-978,10 RT 996-999.) Like the defendant in Cole, Streeter poured gasoline in two distinct places - - on Yolanda, and on the car in which her six-year-old niece was trapped inside. Streeter called Yolanda a "fucking bitch" as he beat her. He telephoned Yolanda's family members and threatened them. As in Cole, this evidence was sufficient to pennit an inference that the defendant's purpose in setting the victim on fire was to inflict extreme pain. (6 RT 526-527,8 RT 756-757, 769-770, 10 RT 1023-1035.) Streeter claims that construing the torture murder special circumstance in a manner which would encompass the facts of this case would result in a special circumstance that is vague and overbroad in violation.ofthe Eighth and Fourteenth Amendments. (AOB 189.) To the contrary; the facts of this case reveal that Streeter is among the worst of the worst, and falls squarely within the narrow definition of torturous murderers deemed statutorily eligible for the death penalty. Finally, if the torture murder special circumstance is found deficient, the death judgment need not be reversed. The jury found the lying in wait special circumstance true, and in determining the appropriate penalty, the jury properly considered all of the facts and circumstances underlying the entire event, as well as Streeter's history. (Brown v. Sanders (2006) 546 179 U.S. 212,223- 225 [126 S.Ct. 884, 163 L.Ed.2d 723].) There is no likelihood the jury's consideration of the mere existence of the torture murder special circumstance tipped the balance towards death. This Court has frequently rejected similar contentions. (People v. Mungia, supra, 44 Ca1.4th at pp. 1101, 1139.) XII. THE TORTURE MURDER SPECIAL CIRCUMSTANCE IS NOT VAGUE OR OVERBROAD, AND THE JURY WAS PROPERLY INSTRUCTED ON ITS ELEMENTS 28 Streeter contends the torture murder special circumstance is unconstitutional, and the instructions given to his jury failed to adequately inform them of the elements of the special circumstance. Specifically, he claims the phrases "extreme cruel physical pain" and "any sadistic purpose," were vague and overbroad, and further argues the instructions "omitted and obfuscated the elements of first degree murder and the torture murder special circumstance." (AOB 190-195.) Streeter acknowledges these claims have been repeatedly rej ected by this Court. There is no reason for a different result here. The jury was instructed on the special circumstance of murder by torture according to CALJIC No. 8.81.18 as follows: To find the special circumstance referred to in these instructions as murder following infliction of torture is true each of the following facts must be proved: The murder was intentional; and the defendant intended to inflict extreme cruel physical pain and suffering upon a living human being for the purpose of revenge, extortion, persuasion or for any sadistic purpose; and the defendant did, in fact, inflict extreme cruel 28 Streeter claims this Argument applies with equal force to his conviction for first degree murder by torture, and asks this Court to reverse both his conviction and the special circumstance. (AOB 191, 195.) For the reasons set forth herein, Respondent requests both the conviction and the special circumstance be affirmed. 180 physical pain and suffering upon a living human being no matter how long its duration. Awareness of pain by the deceased is not a necessary element of torture. (11 RT 1130-1131,1 CT 236, CALlIC No. 8.81.18.) This standard instruction correctly and sufficiently defines the special circumstance of torture murder. (People v. Barnett, supra, 17 Cal.4th at pp. 1044,1160-1161.) In People v. Chatman, supra, 38 Cal.4th at pp. 344, 394, this Court rejected a claim that the torture murder special circumstance was vague and overbroad because the tenn "extreme physical pain" was too imprecise. The defendant in Chatman argued the phrase was analogous to the language, "heinous, atrocious or cruel," which the'United States Supreme Court has found void for vagueness. (People v. Chatman, supra, 38 Cal.4th at p. 394, citing Maynard v. Cartwright (1988) 486 U.S. 356, 363-364 [108 S.Ct. 1853, 100 L.Ed.2d 372].) This Court disagreed, citing People v. Mincey (1992) 2 Ca1.4th 408, 454, which held that since the torture murder special circumstance requires proof that the defendant intended to kill and torture the victim, and inflict extreme pain upon a living victim, the torture special circumstance has been narrowly construed and its constitutionality has been upheld. (People v. Chatman, supra, 38 Cal.4th at p. 394.) The term "extreme" was not vague because it has a commonsense meaning which the jury would be expected to apply. (Ibid., citing People v. Arias, supra, 13 Cal.4th at pp. 92, 189.) Like the defendant in Chatman, Streeter argues the use of the term "cruel" is vague because it was found to be so in the context of a special circumstance for crimes that are "heinous, atrocious and cruel." (AOB 192, citing People v. Superior Court (Engert) (1982) 31 Cal.3d 797,802.) Streeter claims, "[t]he language of Engert has yet to be reconciled with the 181 use of the phrase "cruel pain and suffering" in the torture-murder special circumstance." (AOB 192-193.) Streeter's analysis is flawed, because the constitutional rule applied in Engert was a rule against vaguely worded statutes; that is, those statutes that are not definite enough to provide a standard of conduct for those whose activities are proscribed, or a standard for courts to apply in ascertaining guilt. A jury instruction is not subject to scrutiny under this rule because it does not define a crime, but merely attempts to explain a statutory definition. An instruction may be so inadequate or confusing that it violates due process, but the consequence is not that the instruction is void for vagueness; the question is whether there is a reasonable likelihood the challenged instruction has been applied in a way that violates the Constitution. (People v. Raley (1990) 2 Ca1.4th 870, 899-901, citations omitted.) There is no such likelihood here. Like the jury in Chatman, Streeter's jury was instructed that the special circumstance required proof that the defendant intended to kill and torture the victim, and inflicted extreme pain upon a living victim.29 (11 RT 1131.) These instructions gave the special - circumstance a narrow construction which comported with constitutional requirements. And the term "extreme" has a commonsense meaning. (People v. Chatman, supra, 38 Ca1.4th at p. 394; see also People v. Tafoya (2007) 42 Ca1.4th 147, 197 [referring to the words "extreme" and "substantial"].) 29 The third requirement, involving the infliction of extreme pain upon a living victim, was eliminated with the enactment of Proposition 115 in 1990, which-preceded the offense in this case, but the instruction in this case included that requirement. (People v. Elliot, supra, 37 Ca1.4 that pp. 453,476-477; 11 RT 1131.) 182 Streeter claims the instruction contained contradictory language in the last two paragraphs, because it required proof of the infliction of extreme cruel and physical pain and suffering, but then told the jury the awareness of pain was not a necessary element of torture. Streeter argues the instruction was nonsensical, because a defendant cannot inflict pain if no one feels it. (AOB 193.) To the contrary; while there may be some scientific merit to the argument that the extent of pain can only be measured by reference to something that occurs in the mind, the statute requires the infliction of extreme physical pain, emphasizing the concern with the physical rather than the mental experience of the victim, and making it clear that the purpose of the statute is to encompass killings in which the perpetrator intentionally performed acts which were calculated to cause extreme physical pain to the victim. (People v. Davenport, supra, 41 Ca1.3d at pp. 247, 271.) Even assuming the infliction of extreme and cruel pain requires an awareness of pain so that the provisions were contradictory, the error could only have worked to Streeter's benefit. Streeter acknowledges the infliction of pain is not required for the special circumstance of murder by torture (AOB 193, fn. 27) so the only risk was that the instruction added an additional element not required by statute. In that case, Streeter's jury found the special circumstance to be true even under a more stringent standard than what was required by law. Streeter also challenges the phrase, "any sadistic purpose," claiming it may have a settled meaning but it has no application to this case. (AOB 194.) This Court rejected a challenge to that language in People v. Raley, supra, 2 Ca1.4th at pp. 899-901. In doing so, this Court cited several prior decisions which have consistently approved the challenged language, and noted the phrase "sadistic purpose" has been approved as "'a "precise and correct statement of the law. '" (Id. at pp. 899-900, citing People v. Bittaker (1989) 48 Ca1.3d 1046, 1100-1101, People v. Davenport, supra. 41 Ca1.3d 183 at pp. 247, 267, and People v. Talamantez (1985) 169 Cal.App.3d 433, 455.) Streeter argues the term "sadistic purpose" has no application to this case because there was no sexual aspect of this case, and Streeter did not witness any pain he caused. (AOB 194.) However, as this Court noted in Raley, the instruction adequately informs the jury that the defendant's intent to cause cruel suffering may be induced by any number of nefarious purposes, including sadism. (People v. Raley, supra, 2 Cal.4th at pp. 870, 900.) Moreover, Respondent disagrees with Streeter's conclusion that there was no sexual aspect to this case. While it is true that the evidence reveals Streeter's primary purpose in burning Yolanda was revenge, that does not exclude the possibility that he also obtained some sexual pleasure from dominating and hurting Yolanda, as evidenced by the fact that only months before the burning incident, Streeter had violently raped her. The torture murder special circumstance is constitutional, and the instructions properly defined the elements of that special circumstance. Streeter's claim should be rej ected XIII. THE TORTURE MURDER SPECIAL CIRCUMSTANCE PROPERLY NARROWS THE CLASS OF DEATH ELIGIBLE MURDERERS Streeter contends the torture murder special circumstance is unconstitutional, because it fails to perform the narrowing function required by the Eighth Amendment and fails to insure there is a meaningful basis for distinguishing those cases in which the death penalty is imposed from those in which it is not. (AOB 196-201.) The special circumstance is constitutional. The special circumstance in Penal Code section 190.2, subdivision (a), subsection (18), applies to murders that are intentional and involve the infliction of torture. This Court has specifically found that "the special 184 circumstance of intentional murder involving the infliction of torture sufficiently channels and limits the jury's sentencing discretion consistent with Eighth Amendment principles, and meaningfully narrows the group of persons subject to the death penalty. (People v. Barnett, supra, 17 Cal.4th at pp. 1044, 1162-1163, citing People v. Raley, supra, 2 Cal.4th at pp. 870, 898,900; People v. Davenport, supra, 41 Cal.3d at p. 247, internal citations omitted.) As this Court explained, torture murder is "particularly reprehensible because the defendant intends to cause cruel suffering." (People v. Raley, supra, 2 Cal.4th at p. 900.) This Court has rejected Streeter's argument that the definition of murder by torture fails to narrow the class of death eligible murderers. (People v. Chatman, supra, 38 Cal.4th at pp. 344,394, citing People v. Mincey, supra, 2 Cal.4th at pp. 408, 454; People v. Bemore (2000) 22 Cal.4th 809, 843-844;People v. Barnett, supra, 17 Cal.4th at pp. 1044, 1061 [statute provides sufficiently narrow and rational basis on which to base death penalty, therefore satisfies Eighth and Fourteenth amendments].) Streeter argues this Court's interpretation of the torture murder special circumstance in People v. Elliot, supra, 37 Cal.4th at pp. 453, 477, finding there was no requirement of a willful, deliberate and premeditated intent to inflict extreme and prolonged pain, renders the provision the functional equivalent of first degree murder by torture, and results in a special circu~stance that broadens, rather than narrows, death eligibility. (AOB 199-200.) While he acknowledges that unlike first degree torture murder, the special circumstance requires an intent to kill, he claims the requirement is illusory and theoretical. (Ibid.) Streeter is wrong. In People v. Davenport, supra, 41 Cal.3d at pp. 271-272, this Court held the special circumstance was distinguishable from murder by torture because the special circumstance required that the defendant act with the intent to kill. Streeter uses an example, that the jury 185 could have found the special circumstance true while rejecting a first degree murder torture conviction if they found the absence of a willful, premeditated and deliberate torture, to support his claim that the special circumstance is broader than the requirements for first degree murder. But his example misses the point. It is true that the special circumstance does not require a premeditated, deliberate intent to inflict extreme and prolonged pain, but it is also true that the special circumstance adds the requirement of an intentional killing. The additional requirement of an intent to kill narrows the class of persons eligible for the death penalty. (See People v. Davenport, supra, 41 Ca1.3d at pp. 271-272.) Streeter's claim that the torture murder special circumstance fails to perform the narrowing function required by the Eighth Amendment has been consistently rejected by this Court. His claim should be rejected. XlV. THE JURY WAS PROPERLY INSTRUCTED ON THE CONCEPT OF REASONABLE DOUBT Streeter contends the jury instructions impermissibly undermined and diluted the requirement of proof beyond a reasonable doubt. He challenges the standard jury instructions on circumstantial evidence (CALJIC Nos. 2.90 [PRESUMPTION OF INNOCENCE - REASONABLE DOUBT - BURDEN OF PROOF], 2.01 [SUFFICIENCY OF CIRCUMSTANTIAL EVIDENCE - - GENERALLY], 2.02 [SUFFICIENCY OF CIRCUMSTANTIAL EVIDENCE TO PROVE SPECIFIC INTENT OR MENTAL STATE], 8.83 [SPECIAL CIRCUMSTANCES -- SUFFICIENCY OF CIRCUMSTANTIAL EVIDENCE - - GENERALLY], and 8.83.1 [SPECIAL CIRCUMSTANCES - - SUFFICIENCY OF CIRCUMSTANTIAL EVIDENCE TO PROVE REQUIRED MENTAL STATED, several other general instructions (CALJIC Nos. 1.00 [RESPECTIVE DUTIES OF JUDGE AND JURY], 2.21.~ [DISCREPANCIES IN TESTIMONY], 2.21.2 [WITNESS WILLFULLY 186 FALSE], 2.22 [WEIGHING CONFLICTING TESTIMONY], 2.27 [SUFFICIENCY OF TESTIMONY OF ONE WITNESS], and 8.20 [DELIBERATE AND PREMEDITATED MURDER]) and the motive instruction (CALJIC No. 2.51.) (AOB 201-217.) Streeter acknowledges these instructions have been found not to undennine or dilute the concept of reasonable doubt, but asks this Court to reconsider its prior rulings. This Court should decline to do so. This Court has recently rejected identical challenges to every one of these instructions. In People v. Parson (2008) 44 Ca1.4th 332, 358, the defendant argued that several standard jury instructions individually and collectively undennined and lessened the requirement of proof beyond a reasonable doubt; specifically, CALJIC Nos. 1.00,2.01,2.21.1, 2.22, 2.27, 2.51,2.90 and 8.83. This Court cited and followed its many prior decisions finding the instructions unobjectionable when accompanied by the usual instructions on reasonable doubt, the presumption of innocence, and the People's burden of proof. (Id. at p. 358, citing People v. Kelly (2007) 42 Ca1.4th 763,792 and cases cited; People v. Howard, supra, 42 Ca1.4th at pp. 1000, 1025-1026 & fn. 14, and cases cited; People v. Carey (2007) 41 Ca1.4th 109, 129-131, and cases cited; People v. Crew (2003) 3 1 Ca1.4th 822,847-848, and cases cited.) CALJIC Nos. 8.83.1,2.21.2 and 2.51 were upheld in People v. Kelly, supra, 42 Ca1.3d at p. 792, People v. Howard, supra, 42 Ca1.4th at pp. 1025-1026 & fn. 14, and People v. Whisenhunt (2008) 44 Ca1.4th 174,220. CALJIC No. 2.02 was also upheld in People v. Howard, supra, and People v. Whisenhunt, supra. The same conclusion should be reached here, because the challenged instructions were accompanied by the usual instructions on reasonable doubt, the presumption of innocence, and the People's burden of proof. The jury was instructed pursuant to CALlIC No. 2.90 as follows: 187 A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: It is not a mere possible doubt, because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which after the entire comparison and consideration of all the evidence leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge. (11 RT 1134.) The constitutionality of this instruction has been "conclusively settled." (People v. Whisenhunt, supra, 44 Ca1.4th at p. 220, citing People v. Hearon (1999) 72 Cal.App.4th 1285, 1287.) The instruction properly guided the jury on the concepts of proof beyond a reasonable doubt and the presumption of innocence. Streeter argues the instructions on circumstantial evidence compelled the jury to find him guilty if they found an incriminatory interpretation of the evidence to be more reasonable. (AOB 203-204.) He further argues the instructions created a mandatory presumption that required the jury to accept any reasonable incriminatory interpretation of the circumstantial evidence unless he rebutted the presumption by producing a reasonable exculpatory explanation. (AOB 204.) As to this specific challenge, this Court should follow its many decisions rejecting that claim. (See People v. Parsons, supra, 44 Ca1.4th at p. 358, citing People v. Morgan (2007) 42 Ca1.4th 593, 620; People v. Stewart (2004) 33 Ca1.4th 425,521; People v. Nakahara, supra, 30 Ca1.4th at pp 705, 713-714.) As to Streeter's more general claim, that the 188 instructions undermined the presumption of innocence and the requirement of proof beyond a reasonable doubt, the claim fails because it relies on the faulty presumption that the jury misinterpreted the instructions. This Court presumes that jurors followed the instructions. (See People v. Hamilton, supra, 45 Ca1.4th at pp. 863, 937.) Streeter's interpretation requires a distortion of the clear meaning of the instructions and their context. The challenged instructions do not even purport to address the concept of reasonable doubt; i.e., the level of confidence the jury was required to have in its overall determination regarding Streeter's guilt. They deal with an entirely different subject matter. For example, the circumstantial evidence instructions speak directly and solely to the manner in which the jury was to resolve conflicting factual inferences based on circumstantial evidence. As to the burden of proof and the concept of reasonable doubt, the jury was specifically and correctly instructed pursuant to CALJIC No. 2.90. Thus, Streeter's claim that the more specific instructions were likely to have prevailed over the more general instructions (see AOB 214-215) misses the point; the challenged instructions were not more specific at all; they were altogether irrelevant to the issue of reasonable doubt. Streeter's reference to the prosecutor's closing argument illustrates this point. He challenges the prosecutor's argument that "the defendant's explanation is simply unreasonable, isn't it?" and suggests this violates the rule that the accused has no burden of proof or persuasion, even as to his defenses. (AOB 206, citing 11 RT 1104-1105.) Clearly, however, the prosecutor's argument was a reference to the manner in which the jury should resolve factual questions based on circumstantial evidence, and not a reference to the burden of proof required once the factual issues were resolved. The prosecutor's argument was simply another way to say the factual inferences Streeter was asking the jury to draw from the 189 circumstantial evidence were unreasonable. Nothing about the prosecutor's argument implied that the jury was required to find Streeter guilty if they agreed. Assuming arguendo there was any error in these instructions, it was harmless, so reversal is not required. In addition to the overwhelming evidence of Streeter's guilt as set forth in Argument IV, the prosecutor ended his opening argument by reminding the jury he had the burden of proof beyond a reasonable doubt. (11 RT 1087.) The jury was instructed that proof based on circumstantial evidence required a finding beyond a reasonable doubt as to each fact essential to complete a circumstance. (11 RT 1111.) There is no reasonable likelihood the jury misunderstood the burden of proof beyond a reasonable doubt. The judgment should be affirmed. XV. STREETER'S CLAIM THAT THE TRIAL COURT IMPROPERLY INSTRUCTED THE JURY ON FLIGHT PURSUANT TO CALJIC No. 2.52 IS FORFEITED; IN ANY EVENT, THE INSTRUCTION WAS PROPER Streeter contends the trial court deprived him of his constitutional rights by instructing the jury on flight pursuant to CALJIC No. 2.52. He argues the instruction improperly duplicated the circumstantial evidence instructions, it was unfairly argumentative, and it permitted the jury to draw an irrational permissive inference. He further argues the error requires reversal of his conviction and the special circumstance findings. (AOB 218-228.) Streeter's claim is forfeited. In any event, the instruction was properly given, and even assuming arguendo it was error, it was clearly harmless so reversal is not required. The jury was instructed as follows: The flight of a person immediately after the commission of a crime or after he is accused of a crime is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in 190 deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide. (11 RT 1115, 1 CT 201, CALlIC No. 2.52.) Trial counsel did not object. (See 9 RT 800-814,11 RT 1056-1060.) The failure to object to a flight instruction forfeits any complaint that the instruction was given. (People v. Loker (2008) 44 Ca1.4th 691, 705-706; see People v. Farnam, supra, 28 Ca1.4th at pp. 107, 165; People v. Bolin, supra, 18 Ca1.4th at pp. 297, 326; People v. Jackson (1996) 13 Ca1.4th 1164, 1223; but see People v. Smithey (1999) 20 Ca1.4th 936,982, fn. 12 [claim that flight instruction was not warranted by the evidence was not forfeited by failure to object].) Even if it is not forfeited, Streeter's claim fails. Streeter first claims the flight instruction was duplicative of the general instructions regarding circumstantial evidence. (AOB 218-219, citing CALJIC Nos. 2.00, 2.01, 2.02.) Streeter is wrong. CALlIC Nos. 2.00,2.01, and 2.02 instructed the jurors regarding the definition of circumstantial evidence and the sufficiency of circumstantial evidence to establish facts leading to a finding of guilt. On the other hand, CALJIC No. 2.52 was a cautionary instruction which benefitted the defense by "admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory." (People v. Jackson, supra, 13 Ca1.4th at p. 1224.) Moreover, Streeter's argument misses the point. In support of his claim, Streeter cites cases which stand for the proposition that a trial court does not abuse its discretion in declining to read a defendant's proposed instructions if such instructions are duplicative of standard instructions. (AOB 219.) These cases are not relevant to whether the trial court erred in giving a standard instruction. Further, the flight instruction must be given where evidence of flight is relied upon by the prosecution. (People v. 191 Howard, supra, 42 Ca1.4th at pp. 1000, 1020; People v. Abilez (2007) 41 Ca1.4th 472,521-522; People v. Turner (1990) 50 Ca1.3d 668,694; People v. Cannady (1972) 8 Ca1.3d 379,391.) Here, the instruction was properly given because evidence was presented that Streeter fled the scene immediately after lighting Yolanda on fire, while she was still burning. Indeed, Streeter does not contest that the evidence was sufficient to support giving the instruction. Accordingly, the trial court was required to give the flight instruction regardless of the general instructions on circumstantial evidence. Streeter next claims that the flight instruction was argumentative and focused the jury's attention on evidence favorable to the prosecution. (AGB 219-224.) Streeter's claims have been repeatedly rejected by this Court. (People v. Howard, supra, 42 Ca1.4th at p. 1021; People v. Mendoza (2000) 24 Ca1.4th 130, 180-181; People v. Jackson, supra, 13 Ca1.4th at p. 1224 [noting that the cautionary nature of the instruction benefits the defense].) Streeter urges this Court to reconsider its holdings in light of People v. Mincey, supra, 2 Ca1.4th at pp. 408, 437, which he contends rejected as argumentative an instruction analogous to CALJIC No. 2.52. (AGB 220-221.) However, this Court recently rejected the identical claim with regard to CALJIC No. 2.03, a similar consciousness of guilt instruction: [Bonilla] is correct that the rejected instruction in Mincey was structurally identical to CALJIC No. 2.03: both contained the propositional structure 'If certain facts are shown, then you may draw particular conclusions.' But it was not the structure that was problematic in Mincey. Rather it was the way the proposed instruction articulated the predicate 'certain facts': 'If you find that the beatings were a misguided, irrational and totally unjustified attempt at discipline rather than torture as defined above, you may ... .' (Mincey, [supra, 2 Ca1.4th] at p. 437, fn. 5 [].) This argumentative language focused the jury on defendant's version of the facts, not his legal theory of the case; 192 this flaw, not the generic 'if/then' structure, is what caused us to approve the trial court's rejection of the instruction. (Id. at p. 437 [].) Any parallels between that instruction and CALIIC No. 2.03 are thus immaterial. [Citations.] We adhere to our prior decisions rejecting the argument that CALJIC No. 2.03 is impermissibly argumentative. (People v. Bonilla, supra, 41 Cal.4th at p. 330, original brackets omitted.) The same logic applies to CALJIC No. 2.52, as both are similarly structured consciousness of guilt instructions. (See People v. Morgan, supra, 42 Cal.4th at pp. 593,621 [treating claims relating to CALlIC Nos. 2.03 and 2.52 uniformly]; accord, People v. Thornton (2007) 41 Ca1.4th 391,438; People v. Boyette (2002) 29 Cal.4th 381, 438-439; People v. Jackson, supra, 13 Ca1.4th at pp. 1223-1224.) Accordingly, this Court should follow its previous holdings and reject Streeter's claim. Lastly, Streeter contends the flight instruction permitted the jury to draw irrational inferences regarding Streeter's state of mind at the time the offenses were committed. (AGB 224-227.) Respondent disagrees. As this Court has repeatedly held, CALJIC No. 2.52 does not permit the jury to draw such irrational or impermissible inferences. (People v. Zambrano (2007) 41 Ca1.4th 1082, 1160 ["We have explained that the flight instruction, as the jury would understand it, does not a~dress the defendant's specific mental state at the time of the offenses, or his guilt of a particular crime, but advises of circumstances suggesting his consciousness that he has committed some wrongdoing."]; accord, People v. Howard, supra, 42 Ca1.4th at p. 1021; People v. Thornton, supra, 41 Ca1.4th at p. 438; People v. Bolin, supra, 18 Cal.4th at p. 327; see also People v. Mendoza, supra, 24 Ca1.4th at pp. 179-180.) Streeter argues since there was no dispute that Streeter caused Yolanda's death, the only issue was his mental state at the time the charged crimes were committed. Therefore, he argues, the instruction improperly 193 permitted the jury to use the evidence that Streeter fled the scene to prove that he had the mental states required for conviction of first degree murder. (AOB 225.) But such use would not necessarily be improper. To the extent the jury found Streeter's flight after the crime provided insight into his state of mind when he committed the crime, they were permitted to consider it. This case allowed for such a finding. For example, Streeter was charged with first degree murder by torture, and with the special circumstance of murder by torture. The prosecutor was required to prove that Streeter acted with the intent to torture. Streeter fled the scene while Yolanda was on fire, while she was still screaming in fear and in pain and while others were frantically trying to put out the flames. Streeter's flight under those circumstances has a tendency in reason to establish that he acted with an intent to torture. Second, the instruction did not require the jury to draw such an inference or even suggest that they should. The gist of the instruction was to warn the jury against using evidence of flight improperly. The instruction permitted the jury to consider such evidence only to the extent they found it relevant. The instruction begins by informing the jury that flight is not sufficient in itself to prove guilt. It goes on to inform the jury they may consider evidence of flight "in the light of all other proved facts," but that the weight to give to such evidence is a matter for them to decide. Streeter has raised no persuasive basis for reconsideration of this Court's prior decisions. Accordingly, the trial court properly instructed the jury pursuant to CALlIe No. 2.52. Any error in giving the flight instruction was harmless. It is not reasonably probable Streeter would have achieved a more favorable result had the instruction not been given. (See People v. Turner, supra, 50 Ca1.3d at p. 695 [error in giving flight instruction at guilt phase is reviewed under 194 People v. Watson, supra, 46 Ca1.2d at p. 836]; accord, People v. Silva, supra, 45 Ca1.3d 604,628.) The instructions as a whole infonned the jury that the prosecution had the burden of proof beyond a reasonable doubt regarding every fact establishing Streeter's guilt. (See, 11 RT 1107-1140; [CALJIC No. 1.01, CALJIC No. 2.01, CALJIC No. 2.90, CALlIC No. 8.71; see People v. Frye (1998)18 Ca1.4th 894, 957 [appellate court looks to the entire charge to the jury to determine whether there is a reasonable probability the jury improperly applied a challenged instruction].) The instructions also made it clear to the jury that the flight instruction might not apply. ([CALJIC No. 17.31 ["All Instructions Not Necessarily Applicable"]]; see People v. Richardson (2008) 77 Ca1.Rptr.3d 163,211.) Moreover, as set forth fully in Argument IV, the evidence of Streeter's flight was a very small portion of the overwhelming evidence of his guilt. Accordingly, it is not reasonably probable Streeter would have achieved a more favorable result had the flight instruction not been given. For the same reasons, any error was hannless beyond a reasonable doubt. (See Chapman v. California, supra, 386 U.S. atp. 18.) XVI. THE JURY WAS NOT MISLED As To THE WEIGHING PROCESS FOR DETERMINING THE ApPROPRIATE PENALTY Streeter contends his constitutional rights were violated by the trial court's failure to instruct the jury on the process of weighing the aggravating and mitigating factors to determine the appropriate penalty. Specifically, he contends the omission of CALlIe No. 8.88 from the jury instructions prevented the jury from understanding the weighing process, their responsibility to make a personal decision with regard to the appropriate penalty after assigning moral or sympathetic value to the relevant factors, and that they could only vote to impose death if the aggravating circumstances were "so substantial" in comparison to the mitigating circumstances that death was warranted. He further argues that a 195 note from the jury reveals they were given insufficient guidance on these principles, and that the court's response to the note compounded the problem. He claims the error requires automatic reversal, but under any standard, the error was not harmless. (AOB 229-256.) Streeter is wrong. CALJlC No. 8.88 (formerly CALJlC No. 8.84.2) is a prophylactic instruction. It was designed to avoid the potential for confusion which might result from providing juries with nothing more than the statutory language setting forth the weighing process. Here, that risk of' confusion did not exist, because Streeter's jury was not instructed in the potentially misleading language of Penal Code section 190.3. Moreover, the trial court's instructions and the arguments of counsel fully informed the jury about the nature of the weighing process and their responsibility to individually determine the appropriate penalty. The court's answer to the jury note reaffirmed the breadth of the jurors' discretion, and the jury's subsequent conduct reveals they correctly interpreted the court's response. The jury instructions did not mislead the jury as to their sentencing discretion, so there was no error. The death judgment should be affirmed. CALJlC No. 8.88 is the concluding instruction to be given in penalty trials. It states, It is now your duty to determine which of the two penalties, death or imprisonment in the state prison for life without possibility of parole, shall be imposed on [the] [] defendant. After having heard all of the evidence, and after having heard and considered the arguments of counsel, you shall consider, take into account and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed. An aggravating factor is any fact, condition or event attending the commission of a crime which increases its severity or enormity, or adds to its injurious consequences which is above and beyond the elements of the crime itself. A mitigating 196 circumstance is 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 aggravating and mitigating circumstances does not mean a mere mechanical counting of factors on each side of an imaginary scale, or the arbitrary assignment of weights to any of them. You are free to assign whatever moral or sympathetic value you deem appropriate to each and all of the various factors you are permitted to consider. In weighing the various circumstances you determine under the relevant evidence which penalty is justified and by considering the 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 circumstances are so substantial in comparison with the mitigating circumstances that it warrants death instead of life without parole. [ ... ] You shall now retire to deliberate on the penalty. The foreperson previously selected may preside over your deliberations or you may choose a new foreperson. In order to make a determination as to the penalty, all twelve jurors must agree. Any verdict that you reach must be dated and signed by your foreperson on a form that will be provided and then you shall return with it to this courtroom. As a preliminary matter, Respondent disagrees with Streeter's assertions that 1) CALlIC No. 8.88 was entirely and inexplicably stricken, and 2) that such omission requires automatic reversal of the death penalty. (AOB 229, 250-256.) At the beginning of the discussion on jury instructions, the trial court stated it was going to list the instructions it intended to give, and pointed out portions of those instructions which it intended to delete. (22 RT 2376-2377.) The court proceeded to list the instructions it intended to give, and among them listed "8.88 down to the last paragraph - -" The prosecutor interrupted, asking, "Did your honor 197 say .88?" and the court then finished its sentence and answered the prosecutor, by saying, "- - which is stricken. 8.88." Omitting the interruption, and viewed in context, the import of the trial court's statement was that it intended to give CALJIC No. 8.88 down to the last paragraph, and only the last paragraph would be stricken (with the stricken portion to be read later in the instructions, as described below.) Then the court stated, "That's all the penalty phase instructions I would give." (22 RT 2380.) From these comments it appears clear that the court and the parties intended for the full text of CALJIC No. 8.88 to be read to the jury, albeit in two separate parts, with the last portion of the instruction to be read at the very conclusion of the instructions. That interpretation of the record is corroborated by the trial court's subsequent statements, setting forth the final concluding instructions it intended to give, And then, finally, the modified version of 8.88, which you have a copy of regarding 'you shall now retire and select one of your number to act as forepers.on,' et cetera, et cetera. (22 RT 2381.) That portion of the instruction (the final two paragraphs, which was the portion "stricken" from the original instruction) was, in fact, read to the jury (22 RT 2635) and is identified in the Clerk's Transcript as CALJIC No. 8.88 (Modified). (2 CT 461.) Thus, the omission of the first several paragraphs of CALJIC No. 8.88 from the final reading of the jury instructions appears to have been inadvertent, with neither the parties nor the court noticing its omission from the final instructions. Moreover, respondent disagrees with Streeter's assertions that the instruction was omitted in its entirety, and that reversal is automatic without evaluating the effect of the omission on the outcome of his trial. As detailed below, the trial court read portions of the instruction, and summarized other portions, at various points in the proceedings. Either 198 way, the relevant question is whether, considering the totality of instructions and arguments, there was a reasonable likelihood the failure to instruct misled the jurors as to the scope of their sentencing discretion. (People v. Erasure (2008) 42 Ca1.4th 1037, 1062, citing People v. Brown (1985) 40 Cal.3d 512, 541.) The clear answer on this record is no. CALlIC No. 8.84.2, the predecessor to CALJIC No. 8.88, was developed as a prophylactic instruction after this Court found the language of Penal Code section 190.3, standing alone, could cause jurors to be confused about the process required for weighing aggravating and mitigating circumstances to determine penalty. In People v. Brown, supra, this Court addressed the constitutionality of Penal Code section 190.3, which provided that "if the jury finds that 'the aggravating circumstances outweigh the mitigating circumstances; it 'shall' impose a sentence of death." (People v. Brown, supra, 40 Ca1.3d at p. 538, emphasis in original.) In Brown, the defendant argued the statute impermissibly limited the jury's consideration of all mitigating evidence, required a death verdict on the basis of an arithmetical formula, and forced a jury to impose death for reasons other than its own judgment that such a verdict was appropriate under all the facts and circumstances of an individual case. This Court held that Penal Code section 190.3 should not be so interpreted. In this context, the word 'weighing' is a metaphor for a process which by its nature is incapable of precise description. The word connotes a mental balancing process, but certainly not one which calls for a mere mechanical counting of factors on each side of the imaginary 'scale' or the arbitrary assignment of 'weights' to anyone of them. (Id. at p. 532.) Thus, this Court found the statute was constitutional. However, this Court agreed there was a potential for confusion in the law which called for prophylactic instructions. (People v. Brown, supra, 40 Cal.3d at p. 538.) 199 Brown and the cases applying Brown are not directly applicable here. The "problem" in those cases was that the jury was instructed on the "unadorned" language of Penal Code section 190.3, which stated, the trier of fact shall consider, take into account and be guided by the aggravating and mitigating circumstances referred to in this section, and shall impose a sentence of death if the trier of fact concludes that the aggravating circumstances outweigh the mitigating circumstances. This Court determined such an instruction created the potential for confusion as to two issues. One danger is that the jury will perform the weighing process in a mechanical fashion by comparing the number of factors in aggravation with the number in mitigation, or by the arbitrary assignment of weights to the factors. [Citation.] The other danger is that the jury will fail to understand that our statutory scheme does not require any juror to vote for the death penalty unless, as a result of the weighing process, the juror personally determines that death is the appropriate penalty under all the circumstances. (People v. Edelbacher, supra, 47 Ca1.3d at p. 983,citing People v. Allen (1986) 42 Ca1.3d 1222, 1277, People v. Brown, supra, 40 Ca1.3d at p. 541.) That "problem" did not exist in this case, because the jury was not instructed on the unadorned language of Penal Code section 190.3. The jury was not told they "shall" impose a sentence of death if they concluded the aggravating circumstances outweighed the mitigating circumstances. Thus, the risks of confusion stemming from that language were not present here; the jury could not have misconstrued an instruction that was not gIven. For that reason, Respondent here stands on stronger ground than the defendants in the aforementioned cases. Since the jury here was not misled by a confusing instruction, additional instructions were not needed to disabuse the jury of false impressions that may have been created had such 200 an instruction been given. Thus, the issue here is not whether the jury was affinnatively misled by an instruction, but whether they were provided with adequate guidance to perfonn their sentencing function. Notwithstanding that distinction, Respondent agrees that Brown and the cases following Brown are helpful in answering that question. In Brown, this Court directed that cases tried before the Brown decision should be examined on their own merits to detennine "whether, in context, the sentencer may have been misled to defendant's prejudice about the scope of its sentencing discretion ...." (People v. Myers (1987) 43 Ca1.3d 250,276, citing People v. Brown, supra, 40 Ca1.3d at pp. 538-545.) With respect to the weighing process, Brown explains the primary purpose ofCALJIC No. 8.88, and the analysis that must be conducted to detennine whether the jury understood the concepts contained in that instruction in cases where the instruction was not given. Accordingly, those cases provide a useful ahalytical framework for the question presented here, because if the omission ofCALJIC No. 8.88 was not reversible
