PEOPLE v. HARRIS (WILLIE)

Respondent’s Brief

Cal.December 17, 2009

Iuthe Suprentve Court of the State af California THE PEOPLE OF THE STATE OF CAPITAL CASE CALIFORNIA, Case No. $081700 Maintif and Respondent, ¥ > WILLIE LEO HARRIS, Defendant and Appellant. Ker6“syunty Superior Court Case No. Pid7A, The Honorable Roger D. Randall, Judgeme RESPONDENT'S BRIEP Emde, BroreFe Attorney General of California DANE B. CHLLETTE Mhief Assistant Attorney Coneral CHAEL PPARRELE Sesion Assiutant Attorney Generel HAgey Coloma Deputy Afiorney General Deputy Antomey General Deputy|AdtorneyGenneral State Bar No, 232215 2858eeeAvail, Room 30h}AA at Telephone: ‘SFax: (529) 442 Eroaih Arnarsiz. titornaysor Respondent tg s SEER TABLE OF CONTENTS Page Statement ofthe Case.........ccecssssssssssssscsecssestscsesssessseersees vseseeeeesesessssssensens l Statement Of Facts .........essssssssssecsesesssscscsssssassesessssesessesssasasassecesssserseseneeeee. 4 A. — The People’s Case.........cccsssssssscsssscssscscscssssssscseseesees 4 1 The Crime Scene..........ccccccscssssecssscseseseseee15 2 The Autopsy........cccseseccsssssssssssesssecsssesesesseaes 18 3 Crime Scene Evidence Analysis ..........0...0000.. 19 4 DNA EViIdeNCE........ceeecssssescssessecsecessseessceess 21 5. Charles’ ANIDi...scsssscssscsssssssccseseeesessssssse 22 6 Police Investigation ........cc.ccsscscssseseesesseees 24 7 Appellant’s Statements .0.0....0. eecccessseesseeee 27 8 The Torigiani Burglary.....cccccesssssesesees 31 B. —-—- Defense Case....cscesssssssssssssesesssessssessataessssssceseceees 33 1. Medical Experts ..0........cccccssscssssecseccsesesseseses 33 2. Lori Hiler and Loli Ruiz .......c.cceecseseeeeseess 34 3. The ArSOD .........eccsesscsesesessesescssseacecerecnsscaeseess 39 C. Rebuttaleeeeccssssesesssssescsssessssecssecseecseacacscenees 4] D. —— Penalty Phase oo...ceccssscssssessscsesscececscseeccsessescesscens 42 1. People’s Case........csccccsssssescecssesesssescsceeeeees 42 a. Victim Impact Testimony......0.........0.. 42 b. Prior Uncharged Offense... 43 c. Prior Convictions...........ccccceeeeseceees 44 2. Defense Case .........cccecsssssscssssscseseestsseseseeees 45 a. Appellant’s Background... 45 b. Defense Psychologist.....0....ccccecccseee. 49 Cc. Prison Expert ........ccccccsccssscsssesesscseseaes 52 TABLE OF CONTENTS (continued) Page ALQUMENE....... es eeeeeeeesseseseessesseeesecessecessseasesssesseeseeceeeacecsecesssaesaessesassnensneesare 53 I. The Trial Court Properly Denied Appellant’s Change OfVenue Motion ou... cceescssssecesscecceeesnsseeesessseeeeeeeseens 53 A. Relevant Record.........ecssescessccecesecceesesssssseseessesensees 53 1. Change of Venue Hearing...........ccccccccsesseees 53 2. Jury Voir Dire oo... cece ceseeecescccessesssssesseeeerennens 55 B. Law And Analysis ..0......ccccsssessessscsessssssecseceecseesses 59 II. The Trial Court Sufficiently Questioned Prospective Jurors On Racial Bias Through The Use OfA Juror Questionnaire And Individualized Voir Dire..................... 67 A. Relevant Record............csccscsesscssceccecessessessssseeeeceeens 67 B. Law And AnalySis ............c:ccssccsccssesssssssscssssseeeeesseesee 68 Ill. The Trial Court Properly Denied Appellant’s Batson/Wheeler Challenge To The Prosecutor’s Peremptory Strikes Of Two African-American Jurors......... 72 A. Relevant ProceedingS..............::csesssesesscesssseseeessrsenees 73 B. Applicable Legal Principles.........0....:ccccssseseeesesesees 74 C. DISCUSSION ..........scsssesesscessnceseseescesenaaeeceseseseeesasecsees 77 IV. The Trial Court Acted Within Its Broad Discretion In Denying Appellant’s Challenge For Cause..............::0se 81 A. Relevant Proceedings Below ............:ccsccssesesseresens 81 B. Appellant Failed To Preserve This Claim................ 83 C. The Trial Court Properly Declined To Excuse Alternate Juror R.C. For Cause; Any Error Was Harmless 0.0... eeececessssceseseneessceeesecececssesesseseeeeeeeeees 84 V. There Are No Pre-Trial Errors To Accumulate................. 85 VI. The Trial Court Did Not Abuse Its Discretion In Admitting The Facts OfThe Torigiani Burglary Under ~ Evidence Code Section 1101, Subdivision (B)............00.. 85 il VI. VU. IX. TABLE OF CONTENTS (continued) Page The Robbery And Robbery Special Circumstance Verdicts Are Supported By Substantial Evidence............... 91 A. — Standard Of ReviewW.....cccccssssescsssssssseesssssssseeeesesseeeee 1 B. There Is Sufficient Evidence To Support A Finding That The Intent To Rob Was Formed Before The Murder..........c.ccccccccssccssssssssssesesceseceseseaes 92 C. The Prosecutor Did Not Misstate The Law On Intent As It Related To The Robbery Special CirCUMStance ........ceecsssessesssssscsceecevscecescsssrecssseecseeees 95 D. ‘The Special Circumstance Instruction Was Not Erroneous And The Trial Court Had No Sua Aponte Duty To Instruct On When TheIntent To Rob Was Formed..............ccccseccsssssssessseseseceseeeseaes 96 E. Appellant Was Properly Convicted Of Robbery .... 101 Appellant’s Rape Conviction Was Supported By Substantial Evidence ..........ccccccscsssssscsesscsssssesssesecesssceaeecs 101 A. Standard Of RevieW....icssssssssssssscsssssssssssssssseceee 102 B. There Is Sufficient Evidence To Support A Finding Of Lack Of Consent ......0.ceccceececeeeeeeees 102 C. The Trial Court Properly Admitted Two Letters D. E. Written By Alicia Within A Week Of Her Murder To Show HerState OfMind... 106 The Trial Court Did Not Erroneously Exclude Evidence Of Alicia And Charles’ Relationship...... 110 The Trial Court Did Not Commit Prejudicial EEITODoo. .eeesseseseesccseseseescssesecsasssancessscsssssecssacsevaeecacaeas 111 The Trial Court’s Evidentiary Rulings Were Not Erroneous Or Prejudicial..........ccccccccssceesssssesecsesessescecsees 111 li XI. Xll. XII. E. TABLE OF CONTENTS (continued) Page The Trial Court Properly Determined That The Prosecution Could Present Evidence Of Blood Found On Appellant’s Shoe If Appellant Presented Evidence Of The Lack Of Blood On His Shirt .0.......ccccccccscessssecsscscssssecesessscessrsscssssessesseses 111 The Trial Court Properly Limited Testimony Of. The Defense Expert .............:::ccsssssessecseecsseteseresnaees 117 The Trial Court Properly Denied Appellant’s Motion Requesting A Mistrial Following The Admission Of Appellant’s Prior Statement Referring To Alicia As “The Bitch”... 119 The Trial Court Properly Sustained The Prosecution’s Objection To Appellant’s Closing ATQUMENE 200. eeeceeeeteeeeeeetaeeecsuecseeeseesaeeeseeneetnee 121 The Trial Court Properly Instructed TheJury ........ 122 There Are No Pre-Trial Or Guilt Phase Errors To ACCUMUIAte 00.0... eeesceccccsescscsssecerecsccsssvscsscsessesscrsessseenes 124 The Trial Court Properly Denied Appellant’s Motion For A Mistrial And Properly Declined To Dismiss A Juror Who Reportedly Saw Appellant Mouth The Words “I Hate You” To Her...ceeeeeseecceeeeeeeeeeneeseees 125 A. Factual And Procedural Background...................08 125 B. The Trial Court Properly Declined To Grant A Mistrial Or Dismiss JurorNo.6..........:cceceseeseees ... 129 The Prosecutor Did Not Commit Misconduct When He Used The Name “Willie Horton” In His Penalty Phase Closing Argument And TheTrial Court Had No Duty To Admonish The Jury oc.eeccessesssecseceeeeaceaeseneeneeneees 132 The Trial Court Properly Refused To Instruct The Jury That They Must Impose A Sentence Of Life Without The Possibility Of Parole If They Have Any Doubts About Imposing Death...ceeceseeeseeeeeceeeeneeeeeseesentens 134 iv TABLE OF CONTENTS (continued) Page XIV. There Are No Constitutional Flaws In The California Death Penalty Statutes Warranting Reversal Of Appellant’s Sentence ..0........cccccsescssssecescssscsesseeseeseseasaees 135 A. The California Death Penalty Law Does Not Fail To Adequately Narrow The Class Of Crimes Eligible For The Death Penalty.................. 135 B. There Is No Constitutional Violation For The Failure To Require The Jury To Unanimously Find Death Is The Appropriate Punishment Beyond A Reasonable Doubt...........ccccccceesceseee 136 C. There Is No Constitutional Violation For The Failure To Require The Jury To Unanimously Find The Aggravating Factors True Beyond A Reasonable Doubt ..............ccccsscssssccsscescsesssssseseees 136 D. There Is No Constitutional Requirement For Inter-Case Proportionality Review ..........cccseseeeee 136 CONCIUSION...... ee ecsccssessesssesscessneesessesessssescsssesesssesesasesesassesueenserseesee 137 TABLE OF AUTHORITIES Page CASES Batson v. Kentucky (1986) 476 U.S. 79... eecescceesescesecseaessessesesscessessssseesenseseaes 72, 73, 75, 80 Beck v. Washington (1962) 369 U.S. S41occeseeseecsecesessnsssecssesesseeseesssscessssessesscseeasaues 64 Chapmanv. California (1967) 386 U.S. 18.eeseesecsestseesesescesscseseseessestssarsesesurseesensasas 72, 98, 99 Fain v. Superior Court (1970) 2 Cal3d 46ocesecsscsesseessesessesecseseseessssuceessessussseesscsessssesuseceaeas 60 Frazier v. Superior Court (1971) 5 Cal.3d 287 oooeeeseeeececensesesssesssseseceeecseseecstssesesecsecseeusessesesenss 60 In re Carpenter (1995) 9 Cal4th 634 ooocccccssessesssssseescseseseessesesscesescssssssssnssssssasetseees 131 In re Lucas (2004) 33 Cal.4th 682 oooceesesssssssssseecsesenecssessesseseesseessacsesssssessesenses 131 Johnson v. California (2005) 545 U.S. 162...ee cceccesseseeesssscssessesesseeseessesesessassesessuesssessacass 75,76 Maine v. Superior Court (1968) 68 Cal.2d 375 ooocccsecesssesessssesseseesseseeesessesssesuesesessesscsesesecensessess 60 Martinez v. Superior Court (1981) 29 Cal.3d 574 ooo ecccseceecsscesesessessesssesssssseeesssssscesesssceusscesesseeseeaes 60 Miller-El v. Dretke (2005) 545 U.S. 23]eeeccecseeesseceescesesesesesesaessacsessesseseessssssseecseeecaeenseas 76 Miranda v. Arizona (1966) 384 U.S. 436... seeceeceseneessesseseesssesseceeecssssueessesserecsscsusesessasesses 29 People v. Adams (1993) 19 Cal.App.4th 412oeececssssenesessessessseeesesseeesnsensdeeeeeeneees 134 v1 People v. Avila (2009) 46 Cal.4th 680 oo... cecsesescsseesssecesesesesecssssscscsssssssssscsessecatstsseasenens 96 People v. Avila (2006) 38 Cal.4th 491 ooeeessesessssssssessesesscsssessssssscssssssstsneesersseseeeeseens 75 People v. Balderas © (1985) 41 Cal.3d 144 oocccccssssescesssesesssssscsscssstessssvecsenesssesessestsaeacseseses 60 People v. Bell (2007) 40 Cal.4th 582occecececssesssstssesscssestssssecsecessssssteesececseaspassim People v. Berryman (1993) 6 Cal.4th 1048 ooeccccecesscsssessessssesssssescscsescsacscececseenseesstaceasss 135 People v. Bonilla (2007) 41 Cal.4th 313oeccssseesstssscssssessesscsssssseesesscsssesecsssessseaceaenees 75 People v. Burgener (1986) 41 Cal.3d 505 ooeececssecsscessssssssesessesessessecscsacssssssssessscscstecerses 115 People v. Burney (2009) 47 Cal.4th 203 ooecsssesccscssssssscsssesessesssssssssssecsssssssscesseeeeneens2193 People v. Carpenter (1999) 21 Cal.4th 1016 oo.ccsccssseseesesssesscsssssecssssessecestsesecestsassaasas 136 People v. Carrington (2009) 47 Cal.4th 145oeccccescsseessesseescssesessesssussssssssssceesensrsesensees 124 People v. Carter (1957) 48 Cal.2d 737 oecsscsscsssssseseccsssesscsssssscssssssssvaceeessssseetsecseacsnsssuees 100 People v. Cole (2004) 33 Cal.4th 1158ocesccsscsesesssessecsecsssessscssssesssescsssseeseeeseaeees 89 People v. Coleman (1989) 48 Cal.3d 112occcceceessssssesesstsscssscsessseees se eeaeeeseneeseseeeeseeeseees 60 People v. Cornwell (2005) 37 Cal.4th 50 ooo. ceccccscseesssscsssessesesssssssssesecseesasesateseaeees 73, 76, 77 People v. Crittenden (1994) 9 Cal.4th 83 oocecesseesesesessseeecssesssvssssesacsstscsssseesssseseaeaes 114 People v. Daniels (1991) 52 Cal.3d 815 ooeccssssseessesesseseseseseesesssecsscsecsssasstsccsvecareesesseees 64 Vii People v. Dennis (1998) 17 Cal4th 468 ooeessssesssessesesssessessesessesesssessennes 59, 60, 61, 64 People v. Diaz (1992) 3 Cal4th 495 woeececcessessssesecsssseseesecsesseessesesssssseeeesessensesens 135 People v. Doolin (2009) 45 Cal.4th 390 oooeeeeessssseesesssseseesssesesessesseessesssssseeseesseseseas 76 People v. Earp (1999) 20 Cal4th 826oeccsccscssccssesesssessseessscssessssecssssscssssessseeesseeatens 117 People v. Edelbacher (1989) 47 Cal.3d 983 oececsssesssssecsssecssscseesssscessecsssessssecsussussaceseeeees 120 People v. Ewoldt (1994) 7 Cal4th 380 oo.eeseceecssesesseesssesesesessessesseseeeessessens 88, 89, 90 People v. Farley (2009) 46 Cal4th 1053 occcccsssssscssesssesssesessesessesssescsssesssatssesecceesseeeens 64 People v. Farnam (2002) 28 Cal.4th 107ceeseesssesessessseseseessessssseeseeeessessessseesseeaes 76, 80 People v. Friend (2009) 47 Cal.4th 1 occceecsesesessesssecseesssecssssseesecseseesseseeaess 97, 98, 100 People v. Gray (2005) 37 Cal.4th 168 ooecscecccescessessecsseessesessesssessessscsecssensecseeseeeseees 86 People v. Green (1980) 27 Cal.3d boceceececeeessetseseeeessseseessesessessesssesseseesssesseseeseeeess 93 People v. Griffin (2004) 33 Cal.4th 536weccccsecesssesseseseessessecesenseesesceesseeseeesenessaseeseeeass 75 People v. Gurule (2002) 28 Cal.4th 557 ooocessseesseeeseesssecseeserecsecsesseseesseesneeesseseaes 135, 137 People v. Gutierrez (2002) 28 Cal.4th 1083 ooeccsssseteseessessseeessessessessereseessesseeeesseneees 136 People v. Gutierrez (2009) 45 Cal4th 789 oo.ec ccsscseecsseesssssesesessesssesscesseeeneesesseessessesaeens 124 People v. Halsey (1993) 12 Cal-App.4th 885 ooccccsssesssessesssescsesssccseeecsecssecsesesseeseeseees 120 Vili People v. Hart (1999) 20 Cal.4th 546 ooccecccsssesssessssssssesecacsessscscsssecsescseaseeseseeeseceess 59 People v. Haskett (1982) 30 Cal.3d 841 occeeesscsssscssessssssssssesssssssssssesesessesssreassees 120, 129 People v. Haston (1968) 69 Cal.2d 233oeesceseessssessseesssesesscesesssessecscsssssseseseseeenenseseres 88 People v. Hayes (1999) 21 Cal.4th 12.1eeccsssscssscsecsesesssescsssssssssssssssesesseeesseeacacanss 60 People v. Heishman (1988) 45 Cal.3d 147 occeccceesesseessessesssstsssesncsssnssssescessees 129, 130, 131 People v. Hillhouse (2002) 27 Cal.4th 469 ooeccccssesssssessesesesseeseesssecscsussssnees 85, 136, 137 People v. Hinton (2006) 37 Cal.4th 839 occceccssssscesesssecssssseeeceesssssacssseesssssesecaneaceas 83, 85 People v. Hodgson (2003) 111 Cal.App.4th 566 ooo.ccsescsssseseecesessscsessssscessseeaes 91, 92, 102 People v. Holt (1997) 15 Cal.4th 619 occecsecscessssesssesessecssseesssasseseessees 68, 70, 71, 91 People v. Horning (2004) 34 Cal.4th 871 oooesecsesssesssscssssesessesseseceessesesestscscavecessessenens 84 People v. Hovarter (2008) 44 Cal.4th 983 oo.ee ceeecessssecssseescsesseseessesssesssssseeeaes 120, 122, 132 People v. Howard (2008) 42 Cal.4th 1000eeeecsessssesssscsesessecsesssessesesssessscssscscavseeesevans 77 People v. Hoyos (2007) 41 Cal.4th 872 oon. eccceesesssssscssseesssssseeeescsssssssssescnstscseeneees 135, 136 People v. Hughes (2002) 27 Cal.4th 287 oooeeeccnsesecsssescssesesesescssessessesesssssesssssesess 100, 136 People v. Johnson (1980) 26 Cal.3d 557 woeceescssseeecsesseesessesesesesesesssesscsessesssscesaceees 91, 102 People v. Key (1984) 153 Cal.App.3d 888 oooeeccssssessssssesseessessscsescsecesescscsssvaceecenees 103 ix People v. Kipp (2001) 26 Cal.4th 1100 oo.cceccsessessscscscscsssssesscsssvssassccsssesssanessceaeaces 136 People v. Koontz (2002) 27 Cal.4th 1041occcsscssessssecsessssscsssssssessscesesestenseees 136, 137 People v. Lancaster (2007) 41 Cal4th 50 woeccsesessssssescsssesssscssscscssscscseevsesesesesasecseceesacanes 76 People v. Ledesma (2006) 39 Cal.4th 641 occeccccsssssssessseresessseessessssssssccsssssssescsceeceseees 129 People v. Lewis (2001) 25 Cal.4th 610occeeccssssssesssescsesescsesesesessessssssesestsssansees 85, 125 People v. Lewis (2008) 43 Cal.4th 415oeccsssssesesesessssssseeeseseestsnsesessssssssesssscseessees 93 People v. Malone (1988) 47 Cal.3d 1 onceecccccesscsssessecscsesesssecsessessesscasscscseesasesssescseessecereas 90 People v. Medina (1995) 11 Cal.4th 694ooceccsessescsesessssssssesstecrssssssscessesssssseetsreaes 135 People v. Michaels (2002) 28 Cal.4th 486 occccccsccccsscsssssscescsssscrsssecssesanseceseases 135, 136, 137 People v. Miller (1990) 50 Cal.3d 954 oiecceseseeesesssssssessseseseseeseeseseseseesacsessssacseseceaseass 88 People v. Moon (2005) 37 Cal.4th 1 oo.ec eecscssesssseesssssssscessssscsssssssssesssssesesvsssessaecavsasacenens 84 People v. Price (1991) 1 Cal.4th 324oicsessssesesessssssesesecsesaeeseeseessssssesssssesscesesss 64 People v. Pride (1992) 3 Cal.4th 195 woececeeesssesesessssnsssesececssescseseseesssscssssssneessseess 60 People v. Prieto (2003) 30 Cal.4th 226 winecesssecssssscsesessssesesessesesscsesceeccessesesesesseasessees 99 People v. Prince (2007) 40 Cal4th 1179cescccccssscsssscsscsscssssessscssessesseccetssesestsasenspassim People v. Ramirez (2006) 39 Cal4th 398 oooeecccsessecsssessssesssseseseesececseesesseeees 61, 62, 65, 66 People v. Ramirez, Supra, 30 Cal.4th 398oosecsesccessecssccstsesesecsessescseseessscssssscssssstsesserees 65 People v. Reyes (1998) 19 Cal.4th 743 occccccssssscssssseecseesessecsecsesssssecsesscrsecsuteseseasans 115 People v. Robbins (1988) 45 Cal.3d 867oeccssssecssssssesssesessssecssecsessecsavscsseraecsssaseseescsees 89 People v. Rodrigues (1994) 8 Cal.4th 1060 oooeccscesseccssteesesssseesecssesesessssssssescsssaeseess 116 People v. Saille (1991) 54 Cal.3d 1103 ooeeccecesesssesesseesessssseccessssscssvsssassesssseceacecers 123 People v. Sanders (1995) 11 Cal.4th 475occcecsecssesesssnsessssestenscessesssssesscssevscseseaseseeas 64 People v. Schmeck (2005) 37 Cal.4th 240 oooecesecessseseseesseessesssssesessesecsssscsssssssssseaearecees 84 People v. Silva (1988) 45 Cal.3d 604 oo.ccccsessccsssnecssesesessececssceussssesssssesecessesesseseceeas 95 People v. Stanley (2006) 39 Cal.4th 913 occcecsessecsesneessesesecsesseeeeeseeesessssscensessees 133, 135 People v. Staten (2000) 24 Cal.4th 434occceecsssssssseccsesssssscsssssessssavsnssssceecaseeses 85, 125 People v. Thornton (2007) 41 Cal.4th 391 oieeecssessssecssseesseecescsesssecsssecssscesseseseeeeaees 116 People v. Tidwell (1970) 3 Cal.3d 62 occcceeseesseeeessssesssssseseesssecaessessssecsssessssasscsssesseneeees 60 People v. Valdez (2004) 32 Cal4th 73 oiecceesceseessessssscesessssesesseesecsesscsssevsesasseaes 100, 122 People v. Valencia (2008) 43 Cal4th 268 oooccceceseecssssssssesesesscsesssssacsesecscsscscsaserseessenees 108 People v. Vieira (2005) 35 Cal.4th 264 ooocccscscccssssseseseseesseecsecsesscsessscsessesstenereses 59, 60 People v, Warner (1969) 270 Cal.App.2d 900 oo... eccccccsesessssecsssesenessessececsscseeeusessnecaeseaes 109 Xi People v. Watson (1956) 46 Cal.2d 818 wooccesescesesseeesenscssseseeseesseeseeseeeesesseseseenespassim People v. Weaver (2001) 26 Cal4th 876 oo.ecseseesseecessesesesseesssstseterseseseesesssassssseneeseseeees 60 People v. Webster (1991) 54 Cal.3d 411 woeeeeccsccseecseeceecceasseeeeesssessesesesseseeaseeeeess 100 People v. Wharton (1991) 53 Cal.3d 522 oooccsccnsssesesscesssssseessceneeseseeeneessessessssnteess 120, 129 People v. Wheeler (1978) 22 Cal.3d 258 oo... eesssecsssseseceseeseseesceseesseseseseesenseaees 72, 73, 75, 76 People v. Wilborn (1999) 70 Cal.App.4th 339occceccseseseeseeseeeectseeseseeesssessserssecsasseeeees 70 People v. Williams (1988) 44 Cab 3d 1127 oooccecssesecssccsssscesseeeseeseeseescseessssesoneeees 130, 131 People v. Williams (1997) 16 Cal.4th 153 oooeeecesecscesessessseesssceseceeeessensessesesssseessneseees 95 Peoplev. Williams (2006) 40 Cal4th 287 ooo.eesssceesecssssssssecsessceseeseeesssenessesssaseesansessess 131 People v. Yeoman ; (2003) 31 Cal.4th 93 ooeeesescesseesseeseeecsesseeseteessseesessesseseesneees 77, 89 ~ Turner v. Murray (1986) 476 U.S. 28... cccesscssseccensecssessecenscsscecssseesesseteessssecescesscesseesans 68, 70 Williams v. Superior Court (1983) 34 Cal.3d 584 oceeeeeteecsteseesesesseeeneseensnestesseneensnens 60, 65, 130, 131 Zant v. Stephens (1983) 462 U.S. 862.0... ccssesceeecsessessescteneeseeesseeeseesseesecasaceseseeneareereeeees 95 Xi STATUTES CodeofCivil Procedure § 223ecseccssccecesceeceesecesscsessessscseestsccecassseecesscsesssvaraccassacneassasenausss 68, 71, 72 Evidence Code § 210.cece cceeeseesessseseessssesesessessescseacssssscscssscsasacsceseesetecensaaes 107, 108, 109 § 350... eccceccesesecsesecssecesesssessssstseseesssecsesesssssesssescesseseceasssetasasecsusassacsasees 115 § BSLeceeseesccssesssssesesssecssessessesecssssssescsesesacsstecsssssssssststsesessssecsassaseee 107 § 352. ecesecssseceseceseseeesssesesesneaesesesessecssesestesssscsusecsesceevsvasseseseecaaseasacarspassim § 353, SUDA. (D) ooeeeeccessesesesseceecccsssssessussesscavecessetacassestevscessescarensesees 117 § SOLceececteceecsesesscsesesesesssecssecssssssssssssesessesecsesacsesaseusasareesesecsavess 118 § 1101, subd. (D) ooscscsscsessesssssssevsssssesssseessseessesanstseeessaecsases 85, 86 § L200...ceeeesccectsceesscssssesesesesesssseseecsssssussusscessssstsscassceststscsuscarsuseasecses 107 § 1250... eeececeseeeesseceeeeeaceseeaeecseseeesesceeesteecsesecscessucseceeates 107, 108, 109, 110 § a2eeececesceesessseesessessesescesecsecenccsssssccacceseessctecseseasersereaess 108, 109, 110 Penal Code § 187, SUD. (4)... eee ceccessssscseseeecseseeccssssescssessacecusnecsassessustsuscauscscsesssseveceseee 1 § 190.2, SUB. (a)...eececcecseesssseeseeeecsssessssussscssessaecececsnsarenstecavacsassusetecess 95 § 190.2, subd. (a)(L7)(A)occceccecscccssscsecsssssstssesssesescecsssestsssesesseseseusecs 1, 92 § 190.2, subd. (a)(1 7)(C).....ceecccsssesccsssesssssssscsassescssenssacasscseatecacessucssesssecsass 1 § 190.2, subd. (a)(17)(D) 00. eecccccsscccessesesssssscsssssessccscsecsesrsesseceuscsascscsssrsenes 1 § 190.2, subd. (€)(17)(G)oceececcccesssccscscsesssessssssssaceasseeeceseceseesscaeeessesseseesss 1 BLLcsecsecesceeessssesetsesteeesesscsesasevsessssssssecscsesassesevesecsessesasereaseses 92, 96 § 212.5, SUD. (8)... eeccesccscsesesssseseesesccsscseccscessececesesccacesesscatstacecsaeseceusecs 1, 92 § QOL eccceccsssssesecsscsssecsssssssscsssscsssvsssusacssuscssesussassessasesucesasecsessevevessasessescaeeeees l § 261, subd. (€)(2) 0... ccccccscsescesssesssecsssersecsseesenstecsesscassacssssasseecsaacsesss 1, 102 § 286, SUDA. (C)..ceeeceeesecesssesetseescscesesessssscseessusscsvassssesusecsessestacsucarseses 1 § 451, Subd. (d) ooececsesessssseescsssscsesssssecsasssesvessesecsecasststssessssevsesassecuseee 1 § 459iccceseecsssenceesaecseseesescsesesssccssesusesssssusccsssssssssesssasacssarsnseesassesseeavsesess 93 § FOOLceeee ecsceeecseseescsesesesssecsssessssussessecseccssstasaseesesasarstasessesesaesecsesneses 1 § 460, SUD. (4)...ec ceeescsssssessscssesseessssssssssecseecssseseeassceecessesvetecseseceesessaveases 1 § ABT cc eecssccsessscssecsssecsvecssssesssssssessuesessussssessasessssessassssusessssssussrsesssesssateeseve 96 § 654... ececccsssecssnsesnceeeseeseseecseseseesesesestesscescseassussessassesarassessaaesseeavecsuseneness 3 § 667, SUDA. (a)...eeeesectesescsseseseceseseesssscsuessessscacsseesststsesesesatacacsaacacseens 2 § 667, SUDAS. (C)-(]) ...eeeeecesssssesesessesssscssssecessccsecstscsessssesasssseacsausaseassesecsateees 2 § 667, SUDA. (€)..... ce ceecesessesssssssscscssececsssaecesseasecscecssscesssessssasusessvescesseceeseess 2 § 667.5, SUDG. (D) oo. eee ececesssesesssesseseeccssssusssscessecsescsecsssecesscsssesascsssassssesaeesss 2 § 1033, SUDG. (A)... eeceesssssseseseseesesesecssssccsssesssecacesaesssterscecssassasessersecsassases 59 § 1170.12, subds. (€)-(€) oo. ceecesessceccesesscsssssessssseseesssasssssusescesscsseucsceucsesess 2 § 12022, subd. (D)(1)...... ee ceecccccssecscccsscsecsssssssssesssesessesesavatscatenasesesssseses 2,3 Vehicle Code § 10851, SUB. (4)...eccceseecscsecsecesscssccssscessvsssvsecsssasssstatssestesesssansussessas 1 Xili CONSTITUTIONAL PROVISIONS California Constitution §13, art. VIcececcccccccsscssssecsssssecseceesssscssassesscecessececcsstsestecesteccsseesesececeecsees 68 United States Constitution Sixth Amendment 2.0.0.0... iccesccsescscsscsessecsccecsecsecesssessecseserscesesuessasecsenee 117, 136 Fighth Amendment ............ccccscsssessssescssescscesssssssessessucsasecassescaacsesasaseavees 135, 136 Fourteenth Amendment.00....0. ces cecececssesccsccecececsscecssssecssesscsecsecscecceserseceseceees 136 CouRT RULES California Rules of Court tule 8.204(a)(1)(B)......ccccccccscsseccessscessecsscessccsssccscecsscssecsssessseteseesees 66, 111, 120 OTHER AUTHORITIES CALJIC NO. 1.02.00... cccecscsssssesscsccessscccsscsscececeseseceecesecscssusassausuuseessescesssuseccesececcees 96 NO. 8.21 eee eccccccccccssssesscccsscesssssssaseecessccecsssesesecssssesesesesesesecesseeseseeseees 99, 100 NO. 8.81.1 7.........cccccccesccsssceeesencccsececccsceeeesececcescesscsescecsseseteseceeeesessees 96, 97, 98 NO. D4Occecccccceecsssssssecscssscssseesssecesecssececssecsesssstesssersessssusssteeecess 96, 99, 100 NO. 10.00.0000... eccsssssesssecssesssssscsssceceessesecesssceeeesssavcesssssuessessteeseceecesceseees 103 NO. 14.02...cccccssscessccscasecssvsssceccesserscssseceesesesecseussevsessessscecstsceeeecseecece 96 XIV STATEMENT OF THE CASE On November9, 1998, the Kern County District Attorneyfiled an eight-count amended information against appellant, Willie Leo Harris. Count one charged appellant with the willful, unlawful, deliberate, and premeditated murder of Alicia Corey Manning,in violation of Penal Code! section 187, subdivision (a). Count two charged appellant with the robbery of Alicia Corey Manning,in violation of section 212.5, subdivision (a). Count three charged appellant with the rape of Alicia Corey Manning, in violation of section 261, subdivision (a)(2). Count four charged appellant with the sodomy of Alicia Corey Manning, in violation of section 286, subdivision (c). Countfive charged appellant with the residential burglary of Alicia Corey Manning,in violation of section 460, subdivision(a). Count six charged appellant with theft of a vehicle owned by Alicia Corey Manning,in violation of Vehicle Code section 10851, subdivision(a). Count seven charged appellant with arson of a vehicle owned by Alicia Corey Manning,in violation of section 451, subdivision (d). Count eight charged appellant with the residential burglary of Bree Torigiani, in violation of section 460, subdivision (a). (5 CT 1183-1195.) As to count one, the amendedinformation alleged special circumstancesof robbery (§§ 212.5, subd. (a), 190.2, subd. (a)(17)(A)), rape ($§ 261, 190.2, subd. (a)(17)(C)), sodomy(§§ 286, subd. (c), 190.2, subd. (a)(17)(D)), and burglary (§§ 460.1, 190.2, subd. (a)(17)(G)). Count one further allegedthat appellant used a deadly or dangerous weaponin the ' All further statutory references are to the Penal Code unless otherwise indicated. * “CT” refers to the Clerk’s Transcript On Appeal; “RT”refers to the Reporter’s Transcript On Appeal; “AOB”refers to the Appellant’s Opening Brief. Transcript citations will be preceded by a volumedesignation,if appropriate. commission ofthe offense, in violation of section 12022, subdivision (b)(1). Counts one through eight alleged appellanthad served a prior prison term (§ 667.5, subd. (b)), and had a prior “strike” conviction (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)). Counts one through five and eight further alleged that appellanthada priorserious felony conviction within the meaning of section 667, subdivision (a). (5 CT 1183-1195.) On September 19, 1997, appellant was arraigned on the original information.’ He pled “not guilty” on all counts and denied all allegations. (3 CT 517.) . On November23, 1998, a jury was impaneledto try the case. (5 RT 1224-1225.) On December9, 1998,the jury found appellant guilty as charged in count eight, but were unable to reach verdicts on counts one through seven. (5 RT 1288-1289.) Appellant waivedhis right to a jury trial on the issueofthe prior convictions, and the court foundall three prior conviction allegations in count eight to be true. (5 RT 1289-1290.) On January 7, 1999,the trial court denied probation and sentenced appellant to an aggregate term of 18 years in prison, which consistedof: the upper term of six years doubled to 12 years (§ 667, subd. (e)) on count 8; five years for the section 667, subdivision (a) allegation; and one year for the section 667.5, subdivision (b) allegation. Appellant received 864 days total presentence custody credit. (6 CT 1518-1519, 1522.) On January 11, 1999, appellant filed a notice of appeal from the conviction on count 8. (6 CT 1523.) On January 28, 1999, appellant filed a motion to continue the second trial on counts | through 7 to allow him timeto file a motion for change of * Appellant was never arraigned on the amendedinformation because two counts were dropped and the remaining counts were renumbered, but no new counts were added. (5 RT 1176.) venue. (13 CT 3606-3615.) On February 2, 1999,the trial court granted a continuance. (13 CT 3616.) On April 16, 1999, appellant filed a motion for change of venue (14 CT 3640-3774), which was subsequently denied on May 19, 1999 (14 CT 3830). On May 25, 1999, appellant petitioned for a writ of mandate in the Court of Appeal, which was subsequently denied on May 26, 1999. (14 CT 3929.) On June 18, 1999, a second jury was impaneledto re-try counts 1 through 7. (15 CT 3974.) On June 30, 1999, the jury found appellant guilty on count | and foundthe special circumstances of robbery andrape, along with the arming allegation, to be true. They also found appellant guilty as charged in counts 2, 3, 6, and 7. The jury found appellant not guilty on counts 4 and 5,and foundthe special circumstances of sodomy and burglary not true. (15 CT 4029-4030.) Thetrial court then struck the remainingallegations. (15 CT 4931.) On July 1, 1999, the penalty phaseofthe trial began. (16 CT 4309.) On July 6, 1999, the jury returned a verdict of death. (16 CT 4324.) On August 24, 1999,the trial court denied probation and sentenced appellant to the upper term of 6 years on counts 2 and 3, stayed pursuantto section 654, and the upper term of 3 years on counts 6 and 7 to be served concurrent to count 1. As to count 1, the court imposed a sentence of death, plus 1 year for the section 12022, subdivision (b)(1) enhancement. (16 CT 4518-4519.) This appeal is automatic. STATEMENT OF FACTS A. The People’s Case In the spring of 1997," Alicia Manning’ wasa seniorat California State University Bakersfield (CSUB) ontrack to graduate in Juneofthat year. Alicia lived at 5100 Ming Avenue, apartment B-16, with her roommate, Thea Bucholz, who wasalso a senior at CSUB. Alicia and Bucholz were goodfriends whohadlived together for two years. (27 RT 6142-6144.) After graduation, Alicia planned on driving back to the east coast with her boyfriend Charles Hill.° Alicia lined up a summerjob at Fort Belvoir in Virginia and she wasgoingto stay there with her family for the summer. (30 RT 6950.)’ Charles® was moving to Charlotte, North Carolina, to work at his family’s business repairing hydraulic tools. (27 RT 6146; 30 RT 6927, 6950.) At the end of the summer, Alicia planned to drive to Charlotte to see how things were going with Charles and they wereeither goingto live together in Charlotte or, if she got into graduate school, they would both relocate. (30 RT 6927, 6950-6951.) Charles’ father, Lane Hill, helped Alicia map outthe route that she was going to take back to Virginia, * All further dates refer to the year 1997 unless otherwise noted. ° Alicia, Lee, Valerie, Scott, and Kevin Manningwill be referred to by their first names to avoid confusion. ° At the time oftrial, Charles was 24 years old, 5 feet 10 inchestall, and weighed approximately 195 pounds. (30 RT 6954.) "The prosecution admitteda letter entitled “Dear Dave” into evidence, in which Alicia wrote of her plans to moveto the east coast with Charles after graduation. Theletter was written within the weekprior to her murder. (30 RT 6911-6914, 6921-6922; People’s Ex. 14.) ® Charles and Lane Hill will be referred to by their first namesto avoid confusion. and he let her use his AAA membership to rent a moving van. (30 RT 6928.) Alicia and Charles had knowneachother for approximately three and a half years, and they had beenseriously dating for the last year. (27 RT 6144-6145; 30 RT 6924-6925, 6949-6950.) Alicia had a very good relationship with Charles’ parents; she was like a daughter to them. (30 RT 6925, 6952.) Charles planned to propose to Alicia on her graduation day. (30 RT 6949.) In early April, Bucholz met appellant at her friend’s apartment. Bucholz and appellant formed fast friendship and they regularly saw each otherat least once or twice a day. (27 RT 6153-6154.) Appellant made several attempts to turn his friendship with Bucholz into a romantic | relationship, but Bucholz told him she wasnotinterested and they remained friends. (27 RT 6157, 6193.) Alicia first met appellant approximately one weekafter he and Bucholz met. Bucholz brought appellant over to the apartmentforthefirst time, and Alicia was there so Bucholz introducedherto appellant. Appellant visited Bucholz at her apartment approximately five times and Alicia was there on three of those occasions. (27 RT 6155-6156.) When Bucholz and appellant met, he wasliving with his girlfriend Zenobia “Christy” Findley at 601 Taylor Street, apartment 10, near the intersection of Stockdale Highway and New Stine Road. Findley and appellant datedbriefly in July of 1995 and then they got back together in Decemberof that same year. Appellant moved into Findley’s apartment, which she shared with her brother, in January of 1996. (27 RT 6612- 6615.) ” Findley testified that appellant frequently paged her when she was away from the apartment, and he wasvery controlling of the time that she (continued...) Findley workedat the Bakersfield Californian newspaper and was a full-time student at CSUB. Appellant was unemployedandnotattending school. Neither Findley nor appellant had a car during this time, and Findley would get rides to work and school from a friend. (29 RT 6615- 6616.) Throughout April and May, appellant frequently called the apartment when Bucholz was not home, and Alicia told Bucholz that appellant was calling too frequently andit interfered with her studying. Appellant would also page Bucholz several times a day. Alicia asked Bucholz more than once to tell appellant to stop calling the apartment. Bucholz told appellant that his frequent phonecalls were bothering Alicia, and since she wasrarely homethe best way to reach her wasto page her. (27 RT 6157-6160.) Alicia also told Lane that she was annoyed by the numberofphonecalls she received from a person she identified as Thea’s new boyfriend, and she was purposefully not answering the phone and would leave notes for Bucholz relating the messages. (30 RT 6934.) During the latter part of April and the beginning of May, Findley suspected that appellant had become romantically involved with Bucholz. (29 RT 6618-6619.) Findley’s phonebill contained approximately one page of calls to Bucholz’ pager, most of which were made between 11:00 p.m. and 4:00 a.m. (29 RT 6640.)'° Findley had only seen Bucholz twice, but she knew that Bucholz was Caucasian with reddish colored hair, and she drove an older modellight blue two-doorcar. (29 RT 6637-6638.)"' (...continued) spent away from him. (29 RT 6643.) Shealsotestified that appellant flirted with other women while she was dating him. (29 RT 6648.) '° Findley did not find out the number belonged to Bucholz’ pager until sometime after May 21, 1997. (29 RT 6620.) '' Bucholz drove a 1984 blue Toyota Corolla. (27 RT 6220.) At somepoint, Findley called the apartment looking for Bucholz and Alicia answered the phone. (29 RT 6621, 6646-6647.) The call turned into an argument between Findley and Alicia during which Findley threatened Alicia, prompting herto call the police. (27 RT 6163; 29 RT 6621.) Alicia complained to Lane on several occasions that she had received threatening phonecalls from appellant’s girlfriend. (30 RT 6934.) Charles lived at his parents’ house in Tulare. (27 RT 6206.) Alicia stayed at the Hill residence nearly every weekend, and she would occasionally comeupfor a day during the week. (30 RT 6926.)If Charles wanted to visit Alicia in Bakersfield, Alicia would haveto drive to Tulare to pick him up andtake him back to Bakersfield with her, because he did not have a working vehicle. (27 RT 6206; 30 RT 6951, 6928-6929.) There were occasions when Charles would get a ride to Bakersfield with his friend Daniel Cisneros whoalso hada girlfriend at CSUB,and sometimes Lane would drive Charles to Bakersfield himself. (27 RT 6206; 30 RT 6929.) On the weekend of May17, Alicia visited Charles in Tulare and stayed with him at his parents’ house until she drove back to Bakersfield Sunday afternoon. (30 RT 6925, 6951-6952.) Duringthisvisit, Charles and Alicia discussed a possible break-up because Alicia felt Charles spent too much time with his friends. (30 RT 6967-6968.) Alicia also told Charles that she might have Chlamydia and she thought shegotit from him. She told him she sawthe nurseat the health center on campusand got Findley denied threatening Manning during this conversation. (29 RT 6621, 6647.) 13 Going the speed limit, it would take a little over an hourto drive from Tulare to Bakersfield. (30 RT 7022.) tested. (30 RT 6959.) They ultimately decided to stay together no matter whatthe test results were. (30 RT 6983-6984.)'* On the morning of May15, Alicia had goneto the health center on campusto get a birth controlrefill and to get checkedfor a possible urinary tract infection. Based on her symptoms, Carolyn Krone, the nurse practitioner, conducteda full examination, including tests for sexually transmitted diseases (STDs). The examination showedthat Alicia had a yeast infection, and she began treatmentforit that same day. Theresults of the STD tests came in on May 19, and Kronecalled Alicia that same day to tell her that all of the tests came back negative. (30 RT 6987-6988.) Alicia immediately called Charlesto tell him aboutthe results. (30 RT 6959.) On May 19, Alicia came home and found Bucholz and appellant sitting on Bucholz’ bed. Alicia confronted the pair about the threatening phonecall she received from Findley. Alicia was furious about the entire situation. She said a crazy woman called the apartment looking for them and the womanthreatenedher, so shecalled the police. Alicia asked Bucholz and appellant to tell Findley to stop calling the apartment. Appellant simply stared at Alicia, and did not say anything in response. (27 RT 6161-6165.) On the afternoon of May 19, Lane drove to Bakersfield for business and he took Charles with him. (30 RT 6935.) They met Alicia for dinnerat Los Hermanos, a Mexican restaurant on Stockdale Highway, around 5:00 p.m. (27 RT 6165; 30 RT 6935, 6953.) After dinner, they walked across the parking lot to Trader Joe’s so Lane could buy some marmalade for his wife. (30 RT 6936.) Then, Laneleft for his meeting, whichstarted at 7:00 '* The prosecution admitted a letter entitled “Charles sweetheart,” in which Alicia professed her love for Charles. The letter was written within the week prior to her murder. (30 RT 6911-6914, 6921-6922; People’s Ex. 13.) p.m., and Alicia and Charles walked next door to Albertson’s before driving back to Alicia’s apartment. (30 RT 6953, 6936.) Alicia let Charles drive her car backto her apartmentafter dinner, and he parkedthecar in the carport closest to Alicia’s apartment building. (30 RT 6960, 6962.)"° Whentheyarrived at Alicia’s apartment no oneelse was there and they remainedalone in the apartment until Lane cameto pick Charles up between 10:00 and 10:30 p.m. (30 RT 6954.) Charles and Alicia had previously engaged in sexual intercourse and they planned on having sex that evening, but they ultimately did not because Charles was feeling sick from dinner. (30 RT 6951, 6955.) After his meeting ended, Lane picked Charles up at Alicia’s apartment and they drove back to Tulare. (30 RT 6936-6937.) As Lane and Charles weregetting in the car, they saw Bucholz pull into the parking lot and go upto the apartment. (30 RT 6937, 6955.) Bucholz had been out on the evening ofMay 19, and she came home between 10:00 and 10:30 p.m. She did not see anyone she recognizedin the parking lot as she arrived home. Alicia wasalonein the apartment when Bucholz arrived and they stayed up talking andlistening to a radio talk show. They did not go to sleep until midnight or later. (27 RT 6165-. 6167.) On May 20, Alicia came homefrom class around 3:00 p.m. and Bucholz left for her afternoon class about 10 minutes later. When Bucholz left the apartment, Alicia wassitting on the sofa looking through some papers. It turned out that Bucholz’ afternoon class was canceled, so she went overto her friends’ apartment where she spent the rest of the afternoon. (27 RT 6167-6169.) 'S Charles drove Alicia’s car numerous times, but he did not have his ownkey to her car or her apartment. (27 RT 6221; 30 RT 6977, 6979.) Bucholz had a criminal law class that evening that started at 6:00 p.m. and ended at 8:00 p.m. Appellant paged Bucholz around 6:15 p.m., and she stepped out ofclass to return the call. She told appellant she wasin class and he askedherif they could meet up later. She told him to page her between 9:00 and 9:30 p.m., but he never paged her back that evening. (27 RT 6169-6170, 6211.) On May 20, Findley went to work at 4:00 p.m. and got off work around 8:30 p.m. Findley’s friend, Monica Tavarez, gave her a ride home from work that evening. On the way homethey stoppedat the 7-Eleven, near the intersection ofNew Stine and Stockdale Highway, where Findley withdrew money from the ATM"®and bought a beer for appellant. (29 RT 6622-6624.) After they left the 7-Eleven, they drove to Findley’s apartment. They ran into appellant on the south side of the apartment complex, and Findley gave him the beer and some money. Shealso told appellant that she was going to a friend’s house and she would be backlater. Sheleft the apartment complex around 9:15 or 9:20 p.m.to go to her friend Molly Gutierrez’ house to play Trivial Pursuit. (29 RT 6625-6627.) Later that evening, at approximately 10:52 p.m., Findley received a page that she recognized as her apartment phone number. (29 RT 6628- 6629, 6632.) Findley called her apartment and spoke with appellant who was wondering whyshehad not returned homeyet. She told him that. she would be homeshortly but, before she could leave, appellant called her back, although she could not remember what they discussed. Shortly thereafter, Tavarez drove Findley home,and theyarrived at the apartment complex around 11:00 p.m. (29 RT 6629-6631.) When she arrived home, '® The timelisted on the ATM receipt was approximately 9:00 p.m. (29 RT 6624.) 10 appellant was on the balconylistening to music. She did not notice anything unusual about appellant’s demeanoror appearancethat night. (29 RT 6636.) James Ave, an athletic trainer at CSUB,lived at 5100 Ming Avenue, apartment D-10. On May 20, Ave wasat work and did notgetoff until 6:00 p.m. After leaving work, Ave returned homeandthenleft his apartmentto return to campus around 7:30 p.m. (28 RT 6457-6459.) When Avereturned to his apartment around 10:00 p.m., he saw Alicia’s green Ford Escort parkedin the first space closest to her apartment, and he noticed that the dome light was on inside the car. (28 RT 6459-6461; 29 RT 6709-6710.)"" Prabhjeet Singh, a student at CSUB,lived at 5100 Ming Avenue, apartment B-15. His apartment shared a landing andstaircase with apartment B-16, which was occupied by Alicia and Bucholz. On May 20, Singh got off work at 8:00 p.m. On his way home,he stoppedat a restaurant to pick up dinner and he had beerat the bar beforearriving homearound 9:00 p.m. (29 RT 6589-6590.) After Singh arrived home,he ate dinner and talked on the telephone to a friend. He hadplans to meet his friend, Amit Bansal, an MBAstudent, at the racquetball courts on campusat 10:15 p.m. that evening, because Bansal did not get out of class until 10:10 p.m. While he waseating, Singh heard someone go up and downthestairs outside his apartment about six times. (29 RT 6590-6592.) Around 10:10 p.m., Singh heard the door to apartment B-16 open and about five secondslater he openedhis door to leave and he saw someoneat '” Ave had trouble remembering whether he saw the car whenheleft at 7:30 p.m. or when he returned at 10:00 p.m., but he thought it was more likely that he saw the car at 10:00 p.m. because it was darker and the dome light would have been more prominent. (28 RT 6459-6461.) 11 the bottom ofthe staircase turning left. He was not able to make out the person’s race or gender. By the time he madeit downthestairs, the person had vanished. Then, Singh made his wayto the parking lot where his car wasparked under the carport in the second space nearest to his apartment. (29 RT 6592-6595.) As he approachedhis car, Singh saw Alicia’s Ford Escort parked in the stall next to his, which wasthestall closest to the apartments. The domelight inside the car was on and Singh saw television on thefront passengerseat and a portable stereo in the back seat. He looked around | expecting to see Alicia or Bucholz,but did not see anyone. Singh arrived at the racquetball courts around 10:20 p.m., five minutes late, and Bansal was already there waiting for him. (29 RT 6596-6597.) Thatnight, shortly before 11:00 p.m., Bakersfield Fire Captain William Hammons respondedto a reported vehicle fire in the 300 block of Montclair Street. When Captain Hammons arrived on thescene, a group of people were standing approximately 20 to 30 feet away from the vehicle which wasisolated in an alley behind an apartment complex. (26 RT 6062- 6065.) Captain Hammonsdid not notice any unusual behavior from any of the bystandersat the scene. (26 RT 6069-6070.) Bythis time, a bystander had already extinguishedthe fire using a dry powder extinguisher. (26 RT 6065-6066.) The driver and passengerseats of the vehicle were scorched and the roofliner inside the vehicle had also been damaged. In Captain Hammons’ 22 years of experience with the fire department he had neverseen carfire start in the driver’s seat. The unusual nature of the fire prompted Captain Hammonsto request that the police and arson investigators respond to the scene for further investigation. (26 RT 6066-6068.) Bakersfield Fire Captain Jimmy Embry, an arsoninvestigator, arrived on scene between 11:00 and 11:30 p.m. (26 RT 6068, 6080-6081.) 12 Captain Embry spoke to Captain Hammons whotold him the vehicle was a 1996 Ford Escort that appeared to have been intentionally set on fire. The damage was concentrated in the passenger compartmentofthe vehicle, particularly the driver’s seat and the headliner aboveit. (26 RT 6081- 6082.) Based on the location of the damage, Captain Embry wasable to determine that the fire started on the driver’s side seat cushion. From his observations of the vehicle, Captain Embry wasalso able to concludethat the fire was intentionally set using rubbing alcohol as an accelerant. Based on the extent of the damage, Captain Embry concludedthat the fire had only burned for a few minutes before being extinguished. (26 RT 6083- 6085.) Captain Embry requested that the Bakersfield Police Department (BPD)dispatch an officer to the scene. (26 RT 6085-6086.) Bakersfield Police Officer Mike Golleher arrivedon scene at approximately 11:20 p.m. (26 RT 6068, 6085-6086, 6108-6109.) A registration check showedthat the vehicle was registered to Alicia Corey Manning. A purse containing Alicia’s checkbook waslocated on the floorboard in the backseat of the vehicle and the keys werestill in the ignition. (26 RT 6086-6087.) Shortly after midnight, Captain Embry and Officer Golleher went to Alicia’s apartment in an attempt to contact her. (26 RT 6087, 6110.) They knocked on the apartment doorbut did not get an answer. (26 RT 6087- 6088, 6110.) Then they contacted the apartment managerto see if Alicia still lived at that location, and they weretold that she did. (26 RT 6110.) Captain Embry asked dispatchto call the telephone numberon the checkbookand healso called the number from his cell phone,but the line was busy. (26 RT 6088.) The apartment was on the second floor and there was a balcony with a sliding glass door on oneside of the apartment. The blinds onthe sliding 13 glass door werepartially open, allowing Officer Golleher to look into the living room. Officer Golleher did not see a television in the living room, but he did see a space in a cabinet on the north wallofthe living room that appeared to have houseda television at somepoint in time. (26 RT 6111- 6113.) Captain Embry did nottry to open the doorto Alicia’s apartmentto see if it was unlocked beforethey left. (26 RT 6088.) Bucholz arrived homearound 1:35 a.m. on the morning of May21. The door to the apartment was unlocked, which was extremely unusual because Alicia always kept the door locked when she was home. The blinds on the sliding glass door were open, which was also unusual. As she entered the apartment, Bucholz noticed the television wasnotin its usual place and there were itemsscattered aroundthe living room. Bucholz attributed the mess in the living room to Alicia’s packing, and she assumed Alicia had taken the television into the bedroom. (27 RT 6173-6176.) Bucholz went into the bathroom, changed into her pajamas, and brushed her teeth. The doorto the bedroom she shared with Alicia was partially closed, which was how Alicia usually kept it, but when shetried to open it she found that something was blocking the door from inside the bedroom. She turedthe hall light on and she could see that her fan was lying face down on the floor just behind the door. Bucholz turned on the bedroom light, opened the door, and found Alicia, naked from the waist down,lying face down on herbed in a pool of blood. There was blood on the carpet and walls. She called out Alicia’s name severaltimes but did not receive a response. (27 RT 6176-6179.) Bucholz immediately went to the phoneto call 9-1-1. The phone, which was normally on top of the microwave, was lying on the dining room floor. The receiver was off the hook and the phonelookedlike it had been pulled toward the bedroom. Bucholz dialed 9-1-1 and a police officer arrived aboutfive minutes later. (27 RT 6179-6180.) 14 1. The Crime Scene On May21, between 1:00 and 2:00 a.m., Officer Golleher responded to a report of someoneinjured or possibly deceased inside the same apartment he hadvisited earlier in the evening. Officer Golleher entered the apartment and spoke to a womanin the living room whotold him that her roommate wasinjured. When Officer Golleher entered the bedroom inside the apartment, he saw a white female lying across the bed with her feet on the floor and her headfacing the south wall. He checked for a pulse but could not find one, and he determined the woman was deceased. (26 RT 6113-6115.) At approximately 1:44 a.m., Bakersfield Police Officer John Austin Scott arrived on scene. As Officer Scott entered the apartment, he saw a blood-stained white t-shirt lying on the floor. He also saw what lookedlike the wooden handle of a steak knife protruding from underthe t-shirt. Officer Scott preserved the evidence at the crime scene until Sergeant Borton arrived and took over that duty. (28 RT 6375-6378.) After Sergeant Borton arrived, Officer Scott went next door to speak with Alicia’s neighbor, Jerry Singh. (28 RT 6380.) Bakersfield Police Detectives Bob Stratton and Richard Herman arrived on scene around 2:30 a.m. Initially, Detective Stratton spoketo the security officer who did periodic checks throughoutthe night at the apartment complex. Then, he spoke with the patrol officers who secured the scene. (29 RT 6652-6654.) Onceinside the apartment, Detective Stratton saw several telephone messages and a microcassette tape on top of the microwave. There was a telephone answering machineto the right of the microwave. (29 RT 6671- 6672.) He also found a piece of paper on the floor under the kitchen table with the phone numberto the Bakersfield Police Departmentwritten onit. (29 RT 6706-6707.) 15 Detective Stratton went into the bedroom andobserved Alicia’s body in the southeast corner of the room, lying face downacross a futon. He briefly looked at the scene in the bedroom before turningit over to Supervising Criminalist Greg Laskowski, Criminalist Jeanne Spencer, and Identification Technician Debbie Fraley for evidence collection. (29 RT 6675-6676.) Spencer and Fraley assisted Laskowski in collecting physical evidence and photographing the crime scene. (27 RT 6282; 28 RT 6394; 30 RT 6838.) Laskowski examinedthe points of entry into the apartment and did notfind evidenceofa break-in. (28 RT 6348.) Fraley dusted the outside doorknob andthe handrails on the staircase leading up to Alicia’s apartment for latent prints, but did not obtain any usable prints. (30 RT 6870-6871.) She also dusted the inside ofthe apartmentfor latentprints, but was notable to find any that were suitable for comparison. (30 RT 6868-6869.) As Laskowski entered the apartment, he could see the wooden handle of a steak knife protruding from underneath a blood-stainedt-shirt lying on the floor of the living room. (27 RT 6287.) The bloodpattern on the t-shirt indicated someonehad usedit to wipe the bladeof the knife. (27 RT 6290.) Fraley seized the knife and t-shirt as evidence. (30 RT 6851-6853.) Laskowski also observed a note on top of the microwave written on a torn piece of paper towel that said, “Will called at 6:15 p.m., 9:00 p.m., and 9:30 p.m.” (27 RT 6204-6205, 6296-6297.) Inside the bedroom, Alicia was lying face down onthe futon with her feet touching the floor. (28 RT 6396.) A pair of brown plaid shorts"? that were lying on the floor within one or two feet of Alicia’s body were seized '’ Bucholz testified that these shorts belonged to Alicia, but she could not rememberif she was wearing them that day. (30 RT 6905.) 16 as evidence. (27 RT 6299-6301; 28 RT 6396; 29 RT 6676.) There was a blood-stained note pad, two broken bottlenecks, and a shard ofglass underneath the plaid shorts. (27 RT 6303-6306.) Several shardsof glass were found on the futon around Alicia’s head. (27 RT 6310-6311.) Laskowski found a broken Pilsner glass that was consistent with these shards ofglass in a pile of clothes that were lying on the futon next to Alicia’s body. (27 RT 6311.) Glass fragments were also located under Alicia’s body when it was removed from the apartment. (28 RT 6365.) In addition, a pair of white panties’? foundon the floor ofthe bedroom wascollected as evidence. (27 RT 6299-6301; 28 RT 6400.) There was a bloody sanitary napkin inside the panties, and there was also blood on the edges of the panties. (28 RT 6359-6360, 6402.) Fraley also seized a bloody knife with a black plastic handle, fine serrated blade, and double-prongedtip that was found on the floor between the two beds. (27 RT 6314-6315; 28 RT 6404-6405; 30 RT 6861.) The blade ofthe knife wasbent, which waslikely caused byits use as a stabbing instrument. (27 RT 6316-6317; 28 RT 6404.) | A large amount of blood had pooled around Alicia’s head and shoulders, and blood spatter emanated up from her headin a fan-like projection on the walls. (27 RT 6318.) Spencer collected a blood sample from the wall of the bedroom for furthertesting. (28 RT 6394-6395.) There were also blood smearsor transfer patterns on Alicia’s buttock, thigh, and feet, which appeared to come from a bloody hand making contact with those parts of her body. (27 RT 6318-6319.) Alicia was stabbed in the back of the head and neck, and also on her arms,hands, and the side of her body. (27 RT 6324.) Based on his observations, Laskowski Bucholz testified that these panties did not belong to her. (30 RT 6906.) 17 determined that Alicia was lying face down on the futon when she was bludgeoned in the head and neck area with the broken bottles and Pilsner glass and repeatedly stabbed. (27 RT 6323-6324, 6327.) 2. The Autopsy Forensic Pathologist Dr. Donna Lee Brown performed Alicia’s autopsy. (28 RT 6510.) Dr. Brown observed four distinct areas of blunt force traumaalong the left side of Alicia’s head. The force applied was so strong that it removed the skin and exposedher skull. Dr. Brown determinedthat these injuries were caused by a heavy-duty glass object, in part, because she removedseveral shards of glass from under Alicia’s scalp that appearedto be portions of a Pilsner glass. (28 RT 6513-6515.) Dr. Brown opined that the extent of the blunt force injuries in this case would be sufficient to render someone unconscious, and could have been sufficient to kill someone. (28 RT 6518.) Additionally, Alicia was stabbed approximately 57 timesin theside and back of the neck. There were approximately 20 superficial slicing marks on her right cheek, and there wasalso a stab woundto herright cheek that was 2 inches long and 3 inches deep. She had approximately 10 incised marks on the inside portion of her left arm, and she also had a superficial stab woundto the left side of her abdomen. There was an irregular stab woundacrossthe front of her neck that was three inches long and three inches deep, andit cut above and below her voice box. Alicia had a few scrape marksonherleft elbow andthe left side of her chest and abdomen. She also had somecuts on her left hand. (28 RT 6518-6519.) Someofthe stab woundsto the neck appeared to have been caused by a two-pronged object, and were consistent with the two-pronged knife found in Alicia’s apartment. (28 RT 6520-6522.) Based on hertraining and experience, Dr. Brown opinedthat Alicia was alive, but not necessarily 18 conscious, whenthe blunt force trauma and stab woundswereinflicted. (28 RT 6524-6525.) Dr. Brown did not observe any vaginal trauma, whichis not uncommonevenin cases where a sexualassault has occurred. (28 RT 6526, 6534.) Dr. Brown did, however, find anal trauma,consisting of three small contusions or bruises. These bruises were consistent with anal penetration with an object the size of an adult penis, and would not have been present unless there was anal penetration. Dr. Brown opinedthat these three bruises appeared to have beeninflicted at or near the time of Alicia’s death. Based on the results of the autopsy, Dr. Brown determined Alicia’s death was caused by extremeloss of blood, and it happenedin a matter of minutes. (28 RT 6534-6538.) Spencer was present during Alicia’s autopsy and she collected evidence using a sexual assault kit. (28 RT 6410.) Spencer seized control head and pubic hair samples from Alicia, along with vaginal, oral, and anal swabs. She collected pubic combings andthet-shirt that Alicia was wearing when her body was discovered. Spenceralso collected a sample of what appeared to be urine that had pooled between Alicia’s legs. (28 RT 6412-6413.) The oral swab tested negative for semen, but the vaginal and anal swabstested positive for the presence of semen. (28 RT 6414-6415.) Spencer found a large numberof sperm on the vaginal swab but only a few heads on the anal swab. She noted a possible explanation for this was vaginal drainage, rather than actual anal penetration. (28 RT 6434-6436.) The urine sample also tested positive for semen. The hairs Spencer collected from the pubic combing all belonged to Alicia. (28 RT 6415.) 3. Crime Scene Evidence Analysis Spencer tested the brownplaid shorts found near Alicia’s bodyfor blood and semen, but both tests came back negative. (28 RT 6397, 6399.) 19 She also collected some glass shards found on the shorts. (28 RT 6397.) The white panties seized from the bedroom also tested negative for semen. The sanitary napkin found inside the white panties tested positive for blood, but not semen. (28 RT 6416.) Spencertested several items of bedding seized from the futon where Alicia’s body was found, including a fur blanket,fitted and flat sheets, and a comforter. Spencer found one semenstain on the fur blanket that was located under where the vaginal area of Alicia’s body was positioned. She also tested the comforter, which was black on one side and maroon on the other, for the presence of semen. The maroon side, which was facing down and not in contact with Alicia’s body when she wasfound,testedpositive for semen. (28 RT 6416-6419.) A green hand towelandt-shirt found in the living room both tested positive for blood, which Spencer matched to a known sample of Alicia’s blood. (28 RT 6421.) Spencer was given blood samples from the knife foundin the living room and from somepieces ofbroken glass. (28 RT 6405.) The blood samples from these objects were also positively matched to a known sampleofAlicia’s blood. (28 RT 6407-6408.)"" Laskowski and Fraley processed the inside and outside of Alicia’s Ford Escort for fingerprints. They were not able to obtain prints from inside the vehicle due to the fire and smoke damage andthe dry chemical that was used to extinguish the fire. (27 RT 6327-6331; 30 RT 6872-6873.) *° The blood found on andaroundthe sanitary napkin inside the white panties was not tested to determine whether it was menstrual blood because the location was consistent with menstrual blood, the pathologist told Spencer Alicia was onthelast portion of her menstrual cycle, and there is no good wayto test for menstrual blood. (28 RT 6424-6425.) >! Spencer compared the blood samples from all of these items to known samples from appellant, Charles, Anthony Chappell, and Michael Gonzales, but none were a match. (28 RT 6409, 6421.) 20 They were, however, able to obtain usable prints from the outside ofthe vehicle. (30 RT 6871-6872.) Fraley compared the usablefingerprints to appellant’s fingerprints and they were not a match. (30 RT 6875.) The melted remains of a plastic bottle containing rubbing alcohol were located inside the vehicle on the driver’s seat. The rubbing alcohol waslikely used as an accelerant to assist in starting the fire. (27 RT 6331-6332.) 4, DNA Evidence The Kern County Regional Criminalistics Laboratory sent blood samples from Alicia, Michael Gonzales, appellant, Anthony Chappell, and Charles, two pieces of maroon material, and fibers from a fur blanket, a urine sample, four anal swabs, and four vaginal swabs to Cellmark Diagnostic for DNA analysis. (28 RT 6488-6490.) Charlotte Word, Deputy Director of Cellmark Diagnostics (28 RT 6470), reported the results of the DNAanalysis (28 RT 6493-6503). Analysis of the sperm fraction of the anal swabs excluded Gonzales, Chappell, and Charles as sources of the sperm, but were consistent with appellant’s DNA. Some of the sperm fraction results were below the level of interpretation, so Word could not definitively include or exclude appellant as the source of the sperm. (28 RT 6493, 6495-6496.) Appellant was the only person who could not be excluded as a source of both the non-sperm and sperm fractions of the urine sample. The sperm fraction of the urine sample was consistent with appellant’s DNA to a Statistical frequency of 1 in 1,100 African-Americans, 1 in 11,000 Caucasians, and 1 in 13,000 Hispanics. (28 RT 6496-6498.) Alicia could not be excluded as the source of DNA from the non- sperm fraction of the vaginal swabs, and the four males wereall excluded as possible sources. Appellant was the only person whocould not be excluded as the source of DNA from the sperm fraction of the vaginal swabs. The sperm fraction of the vaginal swabs was consistent with 21 appellant’s DNAto statistical frequency of 1 in 410 million African- Americans, 1 in 1.6 billion Caucasians, and 1 in 1.5 billion Hispanics. Wordnoted that when sperm results are present on a vaginal swabit generally means that they were deposited within 24 to 48 hours of collecting the sample. (28 RT 6501-6503.) Gonzales and Chappell were excluded as sources ofthe non-sperm fraction from the fur blanket sample. Appellant, Alicia and Charles, however, could not be excluded as possible sources ofDNA from the non- sperm fraction of the fur blanket sample. Appellant was the only person whocould not be excluded as the source of DNA from the spermfraction of the fur blanket sample. The sperm fraction of the fur blanket sample was consistent with appellant’s DNAto statistical frequency of 1 in 1.6 million African-Americans, | in 4.8 million Caucasians, and 1 in 9.1 million Hispanics. (28 RT 6498-6499.) Two samples of the maroon comforter were tested for DNA, one from the top and one from the center of the comforter. The non-sperm fraction from the top sample wasconsistent only with Alicia’s DNA. Alicia and Charles could not be excluded as sources of the DNA from the sperm fraction from the top sample, and the results were consistent with a mixture from those two individuals. The non-sperm fraction of the center sample was consistent only with Alicia’s DNA. Charles was the only person who could not be excluded as the source ofDNA from the sperm fraction of the center sample. (28 RT 6500-6501.) 5. Charles’ Alibi On May20, around 4:30 p.m., Charles’ friend, Joe Hampton, dropped him off at his friend Pat McCarthy’s house in Tulare. (30 RT 6956, 6976- _ 6977.)Charles called Alicia from McCarthy’s house around 5:30 p.m., and hecalled his father around 6:00 p.m. (30 RT 6938, 6956-6957.)” Charles told Lane he wasat a friend’s house andthat he talked to Alicia earlier and told her where he was. (30 RT 6938.) Charles left McCarthy’s house around 1:00 a.m. and walked home. (30 RT 6957, 7009.) McCarthy’s house was approximately two miles from Charles’ house andit took him about 20 minutes to walk home. (30 RT 6958.) That afternoon and evening, McCarthy and Charles were shooting pool, playing video games, and drinking beer. (30 RT 7011.) Between 4:30 p.m. and 1:00 a.m., neither Charles nor McCarthyleft the house. (30 RT 6958, 6966.)** Charles recalled approximately 10 to 15 people coming and going from McCarthy’s housethat day. (30 RT 6966-6967.)*° Lane wasa light sleeper and he awoke when Charles returned home around 2:00 a.m. on May 21. (30 RT 6938-6939.) After arriving home, Charles went directly to bed. (30 RT 6965-6966.) Around 5:30 a.m., as Lane wasgetting ready to leave for work, Tulare Police Officers cameto the house and asked to speak with Charles. (30 RT 6939, 6958.) The officers told Charles that Alicia was murdered. (30 RT 6958.) Charles broke down crying and ran off to his bedroom. (30 RT 6939-6940, 6959.) 2 McCarthyrecalled picking Charles up between 1:00 and 2:00 p.m. and then driving back to his house. (30 RT 7013-7014.) . ? McCarthy did not see Charles make any phone calls while he was at his house, but there were short periods of time where Charles was out of McCarthy’s presence during which he could have made phonecalls. (30 RT 7010.) *4 McCarthy could not say with absolute certainty that Charles did not leave his residence for a few hours that day, but he did not remember him being gone for more than 15 or 20 minutes at the most. (30 RT 7017, 7021.) *° McCarthy could not rememberif anyoneelse came overto his house on that day, but he always had friends coming and going since he lived at the house by himself. (30 RT 7009-7010.) 23 6. Police Investigation Shortly after discovering Alicia’s body and learning that she had a boyfriend wholived in Tulare, the Bakersfield Police Department contacted law enforcement officials in Tulare County and asked them to notify Charles about Alicia’s death and to lookfor any visible injuries on Charles’ body. On May21, between 6:00 and 7:00 p.m., Detective Stratton went to the Hill residence in Tulare. Charles was not home whenhearrived, so he spoke with Lane while he waited for Charles to return. Detective Stratton spoke to Charles when he arrived home around 8:15 p.m. As he was talking to Charles, Detective Stratton looked at Charles’ hands, arms, head, and neck forvisible injuries but did not see any. (28 RT 6681-6682.) On May22,at approximately 2:30 p.m., Detectives Stratton and Hermanfirst contacted appellant at his apartment. (29 RT 6678-6679, 6755-6756.) Appellant’s apartment at 601 Taylor Street was approximately eight-tenths of a mile from Alicia’s apartment. (29 RT 6662-6663.) Appellant’s apartment was approximately three-tenths of a mile from the location where Alicia’s vehicle was found at 326 Montclair. (29 RT 6665- 6666.) The detectives interviewed appellant and Findley separately. (29 RT 6678-6679.) Findley told Detective Stratton she got off work around 8:30 p.m. on May20, and she stoppedat the store a few blocks from her apartment before going home. She showed him an ATM receipt, which documented the time she wasatthe store as 8:48 p.m. Findley told Detective Stratton that after she left the store she went home, gave appellant some money and the beer she had purchased for him, told him she wouldbe back in a couple hours, and then sheleft with her friend. (29 RT 6683-6686.) Findley said she received a page from appellantlater that evening, and she showed Detective Stratton her pager, which indicated the time of the page was 10:56 p.m. (29 RT 6645, 6687.) Findley stated that she told appellant she 24 would be home by 11:30 p.m., and she did actually arrive homeat approximately 11:30 p.m. (29 RT 6687.) Appellant told Detective Stratton he was home with Findley the night ofMay 20. (29 RT 6689, 6707.) Detective Stratton asked appellant when he had last been in Alicia’s apartment, and appellant said he wasthere on the morning of May 19, with Bucholz. Appellant told Detective Stratton he had only been to that apartment approximately four or five times, and he had never been there when Bucholz wasnot there. Appellant also said that he called the apartmentseveral times on the evening of May20, in an attempt to get in touch with Bucholz. Detective Stratton showed appellant the note found on the top of the microwave, and appellant believed the note wasreferring to the timesthathe called that night. (29 RT 6689-6691.) Appellant specifically denied having been at Alicia’s apartment on the night of May 20. (29 RT 6708.) Detective Stratton spoke with Findley again on June11, at approximately 7:00 p.m. She told him that appellant’s friend, Anthony (Amp) Denweed, cameoverto their apartment around midnight on the night of May 20. Appellant left with Ampthat night to goto the store. (29 RT 6688.) Findley said Amp cameoverto the apartmentfourorfive times a week. He usually cameoverlate in the evening, and appellant would go outside and talk to him and they would leave together. They were typically gone for 30 minutes before appellant returned home. (29 RT 6641-6643.)”° During the course of his investigation, Detective Stratton learned from Bucholz that a 19-inch Sears television, a VCR, and a portable stereo were missing from her apartment. (27 RT 6186; 29 RT 6680.) Alicia and 6 Amptestified that prior to appellant’s arrest, he wouldvisit appellant approximately once a week for anywhere from 30 minutesto an hour. (30 RT 7045.) Sometimes he wouldvisit appellant as late as 10:00 or 11:00 p.m. (30 RT 7045.) 25 Charles had purchased the VCRat a yard sale, andit did not work properly. (27 RT 6186.) On July 1, Kern County District Attorney Investigators Kevin Clerico and Tam Hodgson, wentto a house located at 400 East Fourth Street in Bakersfield to search for the items stolen from Alicia’s apartment. (31 7062-7063.) The house belonged to Amp’s mother and Amplived there with his girlfriend, Michelle Holiday. (30 RT 7039-7041, 7051-7052.) Ampand Holiday gave Investigator Clerico permission to search the residence. He seized two portable stereos and a cellular phone. (31 RT 7063-7064.)"’ Holiday told Investigator Clerico that after Alicia’s murder, appellant contacted Ampandtriedto sell him a television.’ Holiday was glad Amp did not buy the television. After speaking with Holiday, Investigator Clerico talked to Amp andhe denied that appellant hadtried to sell him a television after Alicia’s murder. Healso deniedtelling Holiday that appellanttried to sell him a television. (31 RT 7065-7066.) On March 4, 1999, Kern County District Attorney Investigator Greg Bresson wentto the residence of appellant’s friend, Debra Cain, in an 77 Sometimelater, Investigator Clerico showedthestereos to Bucholz to see if she could identify them as having belongedto her, but she did not recognize either of the stereos. (31 RT 7064.) °8 Attrial, Holidaytestified that she told investigators appellant tried to sell her a television in March, and she deniedtelling investigators that appellant tried to sell Ampa television in Mayor June. (30 RT 7053-7054, 7057.) ° Attrial, Amp claimed appellant never tried to sell him a television anytime after May 20. Hedeniedtelling Holiday that appellanttried to sell him television shortly after May 20. He also denied that appellanttried to sell him a radio or that he testified as suchatthe first trial. (30 RT 7042- 7043.) 26 attempt to locate property that was stolen from Alicia’s apartment.°” Cain told Investigator Bresson that appellant was an acquaintanceofhers, and that he lived acrossthe street from her whenshe lived in an apartment complex at 510 Taylor Street. (30 RT 7024-7026.) Cain testified about an occasion whensheran into appellant in the parking lot of her apartment complex andhetriedto sell her an older model black VCR without a remote control. Cain was interested in buying the VCR,but she did not ultimately buyit becauseit did not work. (30 RT 7000-7001.) Cain initially told Investigator Bresson that appellant tried to sell her a VCR in June. She later changed the date and said it was actually in May. Cain told Investigator Bresson that the incident took place around the time her granddaughter was born andit was definitely prior to appellant’s arrest. (30 RT 7026-7027.)"" 7. Appellant’s Statements Around 4:00 a.m. on May 21, appellant paged Bucholz while she was at the police station talking with Detective Stratton. She called appellant and told him that it was not a goodtimeto talk and that he could pageher later that morning. She spoke to him again between 9:00 and 9:30 a.m.,at which time she told him the police would probably be contacting him because she gave them his name. Appellant got really quiet after she said this. Bucholz asked appellant where he was the night of May 20, and he said he was with Findley watching movies and eating pizza. (27 RT 6170- *° Investigator Bresson did notfind any items of stolen property at Cain’s residence. (30 RT 7025.) *' Attrial, Cain deniedtelling Investigator Bresson that the attempted sale took place in May or June. (30 RT 7003.) Instead, she claimed it happenedin early April. (30 RT 7001) She did admit that she did not want to cometo court to testify because she considered appellant to be a good friend. (30 RT 7003.) 27 6173.) During this conversation, appellant did not sound like himself and Bucholz thought something wasnotright with him. (27 RT 6246-6247.) Detective Herman picked appellant up at his apartment on May30,at approximately 10:15 a.m., to drive him to Physicians Automated Laboratories for a blood draw to be used for later DNA analysis. (29 RT 6756-6757.) On the drive to the laboratory, appellant continually pressed Detective Herman for information related to the physical evidence that was found at the crime scene. Appellant specifically asked whether they found blood that belonged to the suspect. Detective Herman avoided answering these questions and appellant continued to press him for information. © Appellant asked Detective Herman why they wanted a sample ofhis blood, and Detective Hermantold him thatit could be used to conduct a DNAtest. (29 RT 6759-6760.) When Detective Hermanfirst picked appellant up he seemedto be cheerful and in goodspirits. Appellant’s demeanor immediately changed after he learned that DNA evidence was collected from the crime scene, and he became extremely nervous. Detective Herman asked appellant why he wasnervous and appellantsaid that he was afraid of needles. (29 RT 6760- 6761.) Onthe drive home,appellantstill seemed nervous and Detective Hermanasked him if he had sexual intercourse with Alicia. Appellant hesitated and then said he had sex with Alicia twice. Appellantsaid the first time they had sex wasat Alicia’s apartment in her bedroom, sometime in April shortly after he first met her. The second time was around midnight on May 19, the day before her murder, at Alicia’s apartment on her living room couch. Appellant claimed both of these sexual encounters were consensual. Detective Herman asked appellant why he previously denied having a relationship with Alicia, and he said he did not want to be involved with this case. (29 RT 6763-6768.) 28 On June 11, Detectives Stratton and Hermaninterviewed appellantat the Lerdojail.” At this time, appellant was in custody for allegedly committing a residential burglary. (29 RT 6786.) Before the interview began, Detective Stratton read appellant his Miranda? rights and asked him if he was willing to waive those rights, and appellant said, “I’1l cooperate with y’all. I’m trying to clear myself of this shit.” (29 RT 6788-6790.) Detective Stratton questioned appellant about having sexual intercourse with Alicia, and appellant said he only had sex with her once on May 19, between 11:00 p.m. and 1:00 a.m. Detective Stratton asked appellant if he had madeplans to have sex with Alicia before going over that night, and he said he called Alicia earlier in the day to ask if he could comeoverthat night and she said he could. Detective Stratton asked appellant whether they hadstraight, anal, or oral sex, and appellantsaid, “We just fucked.” Appellant said he wasat the apartmentfor about 15 or 20 minutes and the sex took place on the living room floor. Detective Stratton asked appellant if he used a condom,andappellantsaid he did part of the time but he took if off before ejaculating. Detective Stratton asked appellant whether or not he knew if Bucholz was in the apartment when this occurred andhe said he did not know. (29 RT 6790-6793.) Detective Stratton asked appellant if he previously told Detective Hermanthat he had sex with Alicia on two occasions, and appellant denied saying that and repeated that he only had sex with her once. After Detective Herman confronted appellant on this point, he changed back to his previousstory and said he also had sex with Alicia in April. Detective Stratton told appellant that the semen collected from Alicia’s body was *° The majority of their conversation with appellant wastape- recorded without appellant’s knowledge. (29 RT 6787.) ® Miranda v. Arizona (1966) 384 U.S. 436. 29 being compared with his blood sample fora DNA match. Detective Stratton asked appellant if he thought the semen would match his blood sample, and appellant responded, “I’m pretty sure I fucked her.” Detective Stratton told appellant the people at the lab would be able to tell whether the semen had been deposited on Mondayor Tuesday. (29 RT 6793-6795.) After hearing this, appellant changedhis story again claiming he called Alicia on Tuesday and told her Bucholz wasnot going to be home until 10:00 p.m., and he asked her if he could comeoverandshesaidyes. (29 RT 6798.) Appellant said he waited until Findley came home from work andthen left again before walking to Alicia’s apartment. (29 RT 6798, 6817.) He said he arrived at Alicia’s apartment around 9:00 p.m. and they had sex in the bedroom. (29 RT 6798, 6818-6819.) Detective Stratton asked appellant if he used a condom when he hadsex with Alicia on Tuesday night and he said he used a condom buttookit off before ejaculating. (29 RT 6799.) He said he flushed the used condom and wrapper downthetoilet. (29 RT 6818.) Appellant claimed the sex was consensual and hedid notkill Alicia. The detectives told appellant that he was being conniving and changing his story, and appellant responded, “I’m conniving just like you’re conniving, but I didn’t kill the bitch.” (29 RT 6799-6800.) Appellant told Detective Stratton he called Alicia’s apartment three times on Tuesday evening looking for Bucholz. He was notsure if he talked to Alicia all three times, but he left a message on the answering machineat least once, possibly twice. (29 RT 6816-6817.) Detective Stratton listened to the microcassette tape that was found near the answering machine in Alicia’s apartment, and there appearedto be only one message from appellant on that tape. In the message, appellant said something to the effect of, “If someonecalls looking for Thea’s pager 30 number don’t giveit to her, it’s my girlfriend, she’s trippin’.” (29 RT 6699-6700.) 8. The Torigiani Burglary Bree Torigiani and herbrother Scott Torigiani,** lived in a condominium (condo) at 600 New Stine Road, unit 13. On June 11, Bree arrived homearound 1:00 a.m. and she noticed the kitchen window was open and the screen had been removed. Bree continuedintothe living room where she saw the glass door on the entertainment center was open and the VCR was gone. Shealso noticed that a tin container that was normally inside the cabinet was open andall ofits contents were spread out on the floor. (29 RT 6732-6734.) Bree dropped everything she was carrying andran into the garage, because she wasafraid that someone wasin the house. Thensherealized she shut the garage doorafter she pulled her car in and she could not get out of the garage, so she ran back inside to get the phone andcall 9-1-1. She heard someoneinside the house and thought Scott might have come home and had not parkedhis truck in the garage, so she yelled out his name and a man came running downthe hallway and out the front door. (29 RT 6735- 6736.) The man,later identified as appellant (29 RT 6722, 6737), was carrying a suitcase that had been under Bree’s bed (29 RT 6736.). Bree screamed and ran after him. He ran downa lighted path that ran alongside Bree’s condoin the direction ofNew Stine Road. Bree ran backinto the house and called 9-1-1. (29 RT 6736.) Officer Dennis West and his canine partner were working patrol when they received a call around 1:00 a.m. to respond to 600 New Stine Road, ** Bree andScott Torigiani will be referred to by their first names to avoid confusion. 31 unit 13, to assist in the investigation of a suspected residential burglary. (29 RT 6715-6716.) Officer West was given a description of appellant and he saw a person matchingthat description in the central courtyard area of the apartment complex at 601 Taylor. (29 RT 6716-6717, 6720-6721.) Officer West got out of his car and walked into the apartment complex, but he did notinitially see appellant. (29 RT 6721.) Then, he saw appellant carrying a suitcase downthe staircase leading away from apartment number10. (29 RT 6721-6722.) Officer West identified himself as a police officer and told appellant to stop, but he turned around and ran back upthestairs. (29 RT 6722, 6725.) After appellant reached the top ofthe stairs, he turned around and came back down. Whenappellant reached the bottom ofthestairs, he set the suitcase down, turned away from Officer West, and ran. Appellant only took two or three steps before Officer West grabbed his collar and took him downto the ground. Within a few seconds, Officer Hook arrived as backup and the two officers struggled with appellant for approximately 15 seconds before they wereable to place him in handcuffs. (29 RT 6725-6726.) Appellant asked Officer West why he wasbeing arrested and Officer Westtold him he was being detained because he matched the description of a burglary suspect. In response, appellant said he did not burglarize anyone and helived here in apartment number 10. Officer West found several items ofjewelry in appellant’s left front pant pocket and a walkman-type radio in his right rear pant pocket, which he suspected had been takenin the burglary. Officer West searched the suitcase and found a VCR and a camera inside. (29 RT 6726-6728.) Officer John Jamison took Bree to the 600 block of Taylor Street, where Officer West had detained appellant, for an in-field show-up. (29 RT 6728, 6739, 6748-6749.) Bree identified appellant as the man she 32 chased out of her apartment. (29 RT 6739, 6750.) She later identified appellant again in a line-up at the Lerdojail. (29 RT 6739.) After the show-up, Officer Jamison took Bree back to her condo, and sometimelater he returned with the suitcase and other property recovered from appellant. (29 RT 6738-6739, 6751.) Bree identified the property as hers. (29 RT 6739-6740, 6752.) B. Defense Case 1. Medical Experts Dr. Marvin Ament,a pediatric gastroenterologist, was hired by and testified for the defense. (31 RT 7080.) Based on his review ofslides prepared during Alicia’s autopsy, testimony from the coroner who conducted the autopsy, and his review of the autopsy report, Dr. Ament formed the opinion that Alicia had not been forcibly sodomized. (31 RT 7083, 7092.) Dr. Ament did not see any injury to the anus ontheslides he analyzed. (31 RT 7095.) Assuming, however, the blue marks ontheslides of Alicia’s anal tissue were bruises, Dr. Ament opined that they were no more than 24 hours old. (31 RT 7109-7110.) Dr. William David Stanley, an obstetrician/gynecologist andinfertility specialist, was also hired by andtestified for the defense. Dr. Stanley had performed rape examinations on approximately 10 to 12 people about 10 years prior. In preparation for his testimony, Dr. Stanley wasaskedto review the autopsy report, pictures of the crime scene, transcripts of prior medical testimony, and a medical report from CSUB. (31 RT 7129-7131.) Dr. Stanley testified that in some casesofrape there is no vaginal injury, andstatistics show vaginal injury occurs in anywhere between 30 and 95 percent of rape cases. (31 RT 7142.) He admitted that the large scale studies that have morescientific validity show that only between 20 and 40 percent of cases of sexual assault involve vaginal injury. He 33 testified that external injuries to the body occur in 80 percent of sexual assault cases, including bruising, scratches, scrapes, cuts, stab wounds, and wounds caused by being bludgeoned. (31 RT 7145-7148.) Based on the finding of sperm in the vaginal vault, Dr. Stanley opined that Alicia had sexual intercourse sometime during the 24 hours preceding her death and he saw no medical evidence of non-consensual sex. (31 RT 7152, 7158.) 2. Lori Hiler and Loli Ruiz In May of 1997, Lori Hiler lived in the same apartment complex as Alicia, in apartment number A-10. (31 RT 7174-7175.) On May20, Hiler ran into Ray White while she wasat the pool with her son. White invited Hiler to comeoverto his apartmentlater for a drink. Hiler and hersonleft the pool around 9:00 p.m. and went backto their apartment. (31 RT 7206- 7207.) On cross examination, Hiler admitted telling Investigator Bresson she left the pool around 8:00 p.m., but claimed that was a mistake. (31 RT 7242-7243.) After her son wasin bed, Hiler walked to White’s apartment. (31 RT 7207.) Hilertestified that she was supposed to meet White at his apartment at 10:00 p.m., but she was running late. (31 RT 7183.) On cross examination, she admitted to telling Investigator Bresson that she was supposed to meet White at 9:00 p.m., but claimed that was a mistake. (31 RT 7243.) She claimed she lookedat the clock on her microwaveas she left her apartment and the time was 10:08 p.m. (31 RT 7183.) On her way to White’s apartment, Hiler testified she saw someonecarrying a 19-inchtelevision walking from the direction of building B toward the carport. (31 RT 7182- 7184, 7197.) Hiler described the person she saw that night as a white male in his late twenties or early thirties, six feet tall, 200 pounds, with brown *® Portions of the tape-recorded interview of Hiler that took place on December1, 1998, were played for the jury. (32 RT 7386-7387.) 34 shoulder-length hair. Hedid not have facial hair or visible tattoos or scars, and he was not wearing jewelry. (31 RT 7201-7202.) As Hiler passed the man on the walkway, he stepped off the path because it was too narrow for both of them to walk on at the sametime. (31 RT 7200.) She looked at him and said, “How you doing,” and he respondedby saying, “Umm.” Hedid not turn to lookat her, but just continued looking in the direction he was walking. (31 RT 7196-7197.) Hiler testified that she also saw Alicia’s car parked in the parkinglot that night. (31 RT 7188.) One of the car doors appeared to be slightly open and the domelight was oninside the car. (31 RT 7189, 7226-7227.) Hiler was at White’s apartment for about 40 minutes before they walked back to her apartment to check on her son. (31 RT 7202-7203, 7209.) They were at her apartment for about 10 minutes before walking back to White’s apartment. Hiler eventually went back to her apartment for the night at approximately 12:30 a.m. (31 RT 7209.) Hiler testified that she learned of Alicia’s murder whensheleft her apartmentto take her son to schoolthe following morning. After learning of the murder, Hiler and her son went to stay with her boyfriend. Hiler said she returned to her apartment about a weeklater to get some of her belongings but did not permanently retum until a month after the murder, and she moved out a couple monthsafter that. (31 RT 7177-7180.) Hiler testified that the first time she read anything about Alicia’s murder was approximately two weeksafter it happened, when she read an article that showeda picture of Alicia’s boyfriend Charles. Hiler had seen Charles around the apartment complex a couple times, but she did not know him by nameand she had never spoken to him. Atthe time, Hiler thought Charles looked like the person she saw carrying the television the night of May 20. (31 RT 7185-7187.) Hiler claimed she did not realize she might have information relevant to the case until she went back to her apartment 35 sometime around June 1, to pay her rent, and the apartment managertold her the police wanted to speak to everyone that lived in the complex. Hiler said she spoke with Detective Stratton one or two dayslater. (31 RT 7211- 7213.) Hilertestified that Detective Stratton showedhera six-pack photographic line-up and askedherif she could pick the person she saw carrying the television out ofthe line-up. (31 RT 7191.) Hiler picked Charles’ picture out of the line-up. (31 RT 7191; 32 RT 7344.) Hiler said she called Detective Stratton the following day and told him she was not sure if Charles was really the person she saw that night, or if she just picked him because she saw hispicture in the newspaper. (31 RT 7193, 7226.) Hiler said she began to have doubts when she saw picture of appellantin the newspaper along with an article indicating he was a suspectin Alicia’s murder, and her boyfriend asked herif she was sure the guy she saw was white. (31 RT 7194-7195, 7224.) On cross examination, after having herrecollection refreshed with Detective Stratton’s police report, Hiler testified that she first saw Charles’ picture in the newspaper on the night of June 6. The next morning, she read the article and possibly an additional article that came out on June 7. Hiler admitted that whenshefirst saw Charles’ photographin the newspaper she remembered having seen him around the apartment complex, but she did not immediately recognize him as the person she saw carrying the television on the night of the murder. (31 RT 7216-7219.) Hiler admitted, at present, she was not sure if Charles was the person she saw carrying the television that night or whether the person wasblack or white. (31 RT 7223-7224.) | Detective Stratton testified that on June 9, he spoke with Hilerin person and showedher the photographic line-up. Hiler told Detective Stratton she saw someonecarrying a television set at the apartment 36 complex on May 20. She described the person as a white male, approximately 28 to 30 years old, six feet two inchestall, heavy-set, with blond hair, and wearing a button-up multi-colored shirt. (32 RT 7354- 7355.) As Detective Stratton was speaking with Hiler, White appeared and joined in the conversation. Prior to White’s appearance,Hilertold Detective Stratton that she went from her apartment to White’s apartment and thenlater left his apartment to go back homefor the night. After White joined the conversation, Hiler remembered that she and White both went to her apartment and then went back to his apartment before she eventually returned to her apartment for the evening. Hilerinitially told Detective Stratton she saw the mancarryingthetelevision on herfirst trip to White’s apartment, but later said it might have been on the secondtrip. Hiler initially told Detective Stratton she returned homefor the evening around 11:30 p.m., but, after White joined the conversation, she changedher story and said it may have been as late as 12:30 a.m. (32 RT 7355-7358.) In May of 1997, Teodula “Loli” Ruiz also lived in the same apartment complex as Alicia, in apartment number D-4. Ruiz hadlived in that apartment for approximately six months and claimed she did not know Alicia or Charles. Ruiz testified that on May 21, at approximately 2:30 a.m., the police knocked on her door, told her a crime had been committed, and asked herif she heard or saw anything. (32 RT 7308-7310.) She told them she did not see or hear anything. (32 RT 7320-7321.) Ruiztestified that sometime later, when she was talking with her cousin, she remembered seeing a white male driving a blue-green Ford Escort into the apartment complex on the evening of May 20. (32 RT 7313, 7321.) Ruiz specifically noticed this because he seemedto hesitate as he pulled into the space and he parkedthe car at a slant. (32 RT 7313.) She claimed she did not see anyoneelse in the car with him. (32 RT 7315.) 37 The following Saturday, the police knocked on Ruiz’ door again and she told them what she saw. (32 RT 7311.) Ruiz described the man as heavy-set with hair that came to the middle of his neck, and said he was wearing a baseball cap so she couldnotsee his face. (32 RT 7316.) Ruiz said she only saw the man from the side and she could not see his eyes, nose, or mouth. (32 RT 7322.) Despite her limited view, Ruiz picked Charles’ picture out of a six-pack photographic line-up as the person who most resembled the person she saw that night. (32 RT 7319.) On cross examination, Ruiz could not remember what time it was whenshe saw the man, but she did admit that she previouslytestified that it was sometime between 5:15 and 5:30 p.m. She also admitted that when she first spoke to the police at 2:30 a.m. on May 21, they specifically asked her if she had seen a green Ford Escort the previous night and she told them she had not seen anything. (32 RT 7325-7326.) Shetestified that she did not immediately call the police once she rememberedthis information, but instead she waited until May 24, when the police were backat the apartment complex,to talk to them. (32 RT 7329-7330.) Ruiz also admitted that when shefirst spoke to Detective Stratton she told him she was not sure whether she saw the green Ford Escort on Monday, May19,or Tuesday, May 20. When she spoke with him again a few dayslater, she told him she thought it was Tuesday, but she was not positive. (32 RT 7330.) Ruiz testified that she could not rememberever seeing the green Ford Escort at the complex before that day. Ruiz believed the man she saw was wearing blue jean shorts, a white t-shirt, and a blue baseball cap. She admitted telling Detective Stratton that she could not make a positive identification. (32 RT 7734-7337.) Detective Stratton testified that the first time he talked to Ruiz was on the telephone, at approximately 6:00 p.m., on May 25. (32 RT 7345.) Ruiz 38 said the man she saw appearedto be in his thirties, approximatelyfivefeet seven inchestall with a stocky build, and he was wearing a blue baseball cap and blue jean shorts. She told Detective Stratton she wasnotsure if she saw the car on Mondayor Tuesday, but she was leaning toward Tuesday. (32 RT 7350-7352.) On June 10, Detective Stratton met with Ruiz in person and showed her the photographic line-up. (32 RT 7345-7346.) At this time, she was still not sure if she saw the man on Mondayor Tuesday. After making the identification, Ruiz indicated the picture she chose looked like the man she saw getting out of the green Ford Escort, but he had a baseball cap on so she could not makea positive identification. (32 RT 7350-7351.) 3. The Arson Christopher Bourgoine”testified that on May20, at approximately 11:00 p.m., he wassitting in his car in the alley behind his apartment complex, talking to his then girlfriend, when he heard a “poof”noise. (31 RT 7271, 7273-7274.) He looked around and saw car onfire in his rear- view mirror. (31 RT 7273.) He grabbedthefire extinguisher from his car and ran towardthe fire. Thick, black smoke was comingout of the open driver’s side window,so he sprayed the extinguisher through the window and put the fire out in less than one minute. (31 RT 7275-7277.) Christophertestified that as he was putting out the fire, he saw a man, who appeared to have comeoverthe fence, running toward him. According to Christopher, the man seemed nervous and he repeatedly patted him on the back, told him he did a good job, and asked him if he saw whosetthe fire. Christopher described this person as a white male in his late twenties to early thirties, five feet nine inchestall, with dark curly °° Christopher and Gloria Bourgoinewill be referred to by their first names to avoid confusion. 39 brownhair, a thick mustache, and novisible tattoos. He was wearing a paisley-patterned polo shirt, blue jeans, a belt, and tennis shoes. Christopher said he had never seen this man before. (31 RT 7277-7281.) According to Christopher, the man wasstill at the scene when the initial fire department personnelarrived five minutes later. He disappeared, however, after someone in the crowd pointed out that the fire investigator had arrived. (31 RT 7282-7283.) On cross examination, Christophertestified that the fire investigator arrived approximately 10 minutes after the initial fire department personnel. He remembered seeing the manat the scene for several minutes after the fire department personnelarrived, and did not notice that the man was gone until about 10 minutes later. (31 RT 7288-7289.) He admitted that he did not know whether the man left before or after someone commentedthat the fire investigator had arrived. (31 RT 7292.) Christopher andhis twin sister Gloria were living togetherat the time of this incident. Gloria testified that between 10:00 and 11:00 p.m., Christopher’s girlfriend ran into the apartment and said there was a car on fire in the alley. Gloria ran outside and saw herbrothertrying to extinguish the car fire. (31 RT 7293-7295.) A few minutes later, Gloria saw a man who appeared to have come up the back alleyway. The man was clean-cut, with shoulder-length brown hair, and a mustache. He was wearing jeans, tennis shoes, and a polo shirt. Gloria said the man told her he lived in the houses behind the apartment complex. She lived in that apartment complex for four and a half years, and she had never seen the man before. (31 RT 7295-7296.) Gloria said she told the police the man wasacting nervous, and he repeatedly asked if anyone saw whostarted the fire. She claimed the man left after the fire inspector came. According to Gloria, the fire inspector arrived approximately 30 minutes to an hourafter the initial fire department 40 personnel. She admitted that she could not remember exactly when the manleft, because she just looked up at somepoint and he wasgone. (31 RT 7296-7299.) | On cross examination, Gloria testified that she thought the manleft before the fire inspector arrived. (31 RT 7300-7301.) C. Rebuttal Detective Stratton spoke with McCarthy on the telephone on May23, at approximately 11:15 a.m. McCarthytold Detective Stratton he had not spoken with Charles for several days. McCarthy said he picked Charles up at his house around 1:00 or 2:00 p.m. on May20, and they wentback to McCarthy’s house. They hung outthere all day and Charles walked home around 12:30 a.m. When he spoke with Detective Stratton, McCarthy did not know that Alicia had been murdered. McCarthy told Detective Stratton he was. absolutely certain that Charles was with him on Tuesday from approximately 2:00 p.m. until 1:00 a.m. (32 RT 7366-7367.) Detective Stratton spoke with McCarthy over the phone for a second time on June 13, at approximately 7:15 a.m. This conversation occurred after Detective Stratton spoke with Hiler. During this conversation, McCarthy did not waver from the timeline he gave Detective Stratton in their first conversation. Detective Stratton told McCarthythatifthey determined he waslying he could get in trouble for providing Charleswith a false alibi. In response, McCarthy said, “I don’t have to worry aboutthat because Charles Hill was here and did not leave and could not have been in Bakersfield on Tuesday night.” (32 RT 7367-7368.) 41 D. PENALTY PHASE 1. People’s Case a. Victim Impact Testimony Alicia was the only daughter of Lee and Valerie Manning. Alicia had two younger brothers, Scott, 22, and Kevin, 19. Alicia was loving, caring, loyal person who always went out of her wayto help others, and never asked for or expected anything in return. (34 RT 7770-7771.) Alicia had plans to work at a military installation in Virginia before applying to graduate school and eventually taking the Foreign Service examination. Her intent was to become a counselorso that she could help Americans andother people overseas in the diplomatic service. Lee served in the United States Army for 23 years in the advance attaché business. He worked with the Defense Intelligence Agency, and the Manning family lived in nine different countries, China, Finland, South Africa, Ghana, Barbados, South Korea, Malawi, Chile, and Ethiopia, when Alicia was growing up. Lee was employed by the Department of Defense and stationed in Cambodia, Indochinaat the time of Alicia’s death. (34 RT 7771-7773.) Alicia had a loving, close relationship with her brothers, especially with her youngest brother Kevin. Alicia’s death hasleft a tremendous void in the family and while her brothers do notlike to talk aboutit, Lee can see the emptiness in their hearts when he looksinto their eyes. Both of Alicia’s brothers keep pictures of her with them. Lee and Valerie will never have the chance to see their daughter get married or have children, and Valerie has nightmares becauseofAlicia’s death. Alicia’s death causeda lot of anger in Lee, which manifested itself through arguments at home. (34 RT 7774-7775.) 42 b. Prior Uncharged Offense OnFebruary 4, Beatrice Thompson went to the 7-Eleven on the comer of Stockdale Highway and New Stine Road to purchase a money order. Thompson noticed two other customersinside the 7-Eleven, one was a black male. After Thompsonleft the store, she walked through the parking lot on her way back to her apartment. She wascarrying her purse, which had two small handles,in her left hand as she walked. (34 RT 7777- 7779.) Asshe beganto cross the street, a man,later identified as appellant, approachedherand told her to give him her purse. (34 RT 7779, 7811.) Thompson recognized appellant as one of the customers from the 7-Eleven. Appellant was approximately two feet away from Thompson when he initially confronted her. When Thompsonrefused to give him her purse, he snatchedit from her so forcefully that the straps broke off in Thompson’s hand. As he ran away,severalitems fell out of the purse and he came back to pick them up. Thompson screamedfor help but there was no one around to help her. As Thompson wasscreaming, appellant ran downanalley that went through to Taylor Street. (34 RT 7779-7782.) At approximately 2:20 p.m., Officer Jason Hackney responded to Thompson’s apartmentat 609 Taylor Street, apartment number3,in responseto a report ofa purse snatching. 7 Thompson described the perpetratoras a black malein his thirties, approximately five feet eleven inchestall, 170 pounds, with a beard, and wearing a blue hooded sweatshirt and jeans. Officer Hackney went to the 7-Eleven on Stockdale Highway and New Stine Road and seized a videotape from the store’s closed-circuit surveillance camera. (34 RT 7803-7805.) 37 Appellant’s apartment complex at 601 Taylor Street is located right next to the apartment complex at 609 Taylor Street. (34 RT 7805.) 43 Several months later, Thompson saw picture of appellant in the newspaperand recognized him as the man whostole her purse. (34 RT 7783.) Thompson’s daughter contacted the police department sometime in June, and, on June 19, Detective Kevin Legg went to Thompson’s apartmentto show her a photographic line-up. (34 RT 7784-7785, 7797, 7806-7809.) Thompson lookedat the line-up for approximately 20 seconds before identifying appellant as the man whostole her purse. (34 RT 7811.)°8 Detective Legg subsequently reviewed the video surveillance tape seized from the 7-Eleven, and he recognized appellant in the footage. He hada total of 18 still photographs prepared from the videotape. One ofthe photographs depicts Thompson standing at the checkout counter and appellant standingslightly behind andto the right of her.*? The photograph showsthe date and time as February 4, 1997, at 3:11 p.m. The clerk at the 7-Eleven told Detective Legg that the time stamp on the tape was an hour ahead, so the real time wasactually 2:11 p.m. (34 RT 7812-7815.) c. Prior Convictions The People introduced documentation of appellant’s three prior convictions. These convictions included first degree burglary in 1990 and possession of a controlled substance in 1988 and 1995. (34 RT 7820-7821, 7825.) °8 Thompson also made anin-court identification of appellant. (34 RT 7788-7789.) *° This photograph was introduced into evidence. (34 RT 7787.) 44 2. Defense Case a. Appellant’s Background Appellant’s mother, Jerlene Harris,” testified that appellant was born on January 9, 1969, and was the youngest of six children. Jerlene was married to Deo Edward Harris, who wasthe fatherofall but her oldest child. Deo waskilled shortly after appellant was born, and, in the two years that followed, Jerlene continued to stay home andtakecare of her children. Jerlene eventually went back to work to get off welfare. Sheleft appellant with a neighbor while she was at work and the other kids wereat school. (34 RT 7850-7853.) Asa child, Jerlene said appellant always had a lot of energy and it was hard to get him to stay still. Appellant always woke up with a smile on his face, and wheneverthere was a family disagreement appellant would make a joke to break up the tension becausehe did notlike it when people argued. (34 RT 7857-7858.) Appellant did not move out of Jerlene’s home until he moved in with Findley, but even then he would move back in wheneverthey gotinto a fight which, according to Jerlene, happened often. Jerlene said appellant had lot of girlfriends and he constantly fought with all of them, although she claimed that he was neverphysically violent toward any of them. (34 RT 7856-7857.) Appellant’s sister, Delora Harris, testified that she helped raise appellant and they had an extremely close relationship. Delora described an incident that occurred when she wasabout 11 or 12 years old. She said she left school during lunch to check up on appellant and she found the “° Jerlene, Deo, and Delora Harris will be referredto bytheirfirst namesto avoid confusion. 45 babysitter beating him. Delora took appellant home and stayed there with him until her mother got home from work. She rememberedthat appellant would always come homestarving even though their mother would send his breakfast and lunch with him. Jerlene quit working for a period oftime after this happened so she could stay home with appellant. (34 RT 7861- 7864.) Delora left Bakersfield to attend San Antonio Junior College when appellant was about seven or eight years old. Delora hated that she had to leave appellant and he cried and begged hernot to go. Delora said she drove to Bakersfield every weekend to pick appellant up and take him to schoolto stay with her. Appellant would call her every Wednesdayto make sure she wasstill going to comeandget him, and then he would call again on Thursday for the same reason. Delora would makea collect call to the house every Sundaynight to let appellant know shearrived back at school safely, and she told him notto accept the call but he always accepted it anyway. (34 RT 7866-7867.) After she graduated from college, Delora moved back to Bakersfield and she maintaineda close relationship with appellant. He would call her every day several times a day to ask what she was doing andif he could come over. (34 RT 7868.) When Delora hit a low pointin her career appellant talked her into going back to school. (34 RT 7873.) Deloratestified that appellant got into fights when he wasa kid, but she had never knownhim to be in fights or lose his temper as an adult. In fact, appellant would act as a mediatorto try to calm things down whenever an argument broke out between family members. (34 RT 7869-7870.) Whenappellant wasfive years old, his siblings first introduced him to marijuana. (34 RT 7870-7871.) When appellant was 16 or 17 years old, a family member introduced him to crack cocaine. (34 RT 7877.) 46 Delora’s daughter and appellant’s niece, Dracena Smith, is only eight years younger than appellant. (34 RT 7879, 7887.) Shetestified that appellant was morethan a cousin to her; he wasalso a brother and friend. They hung out and partied together. They talked on the phone nearly every day and he would ask her to hook him up with oneofher friends and she would ask him to do the samefor her. (34 RT 7879-7880.) Smith recounted an incident that occurred at her grandmother’s house when she wassix or seven years old. Someofher cousins, including appellant, were jumping from the top bunk ofone set of bunk bedsto the bottom of another set of bunk beds. Smith tried to jump too but she ended up falling and cutting her head open. Appellant picked her up and he becamefaint at the sight of the blood. According to Smith, appellant could not stand the sight of blood. (34 RT 7881.) At one point, Smith was dating one ofappellant’s friends, who appellant did not approveof, and he introduced her to crack cocaine. When appellant found out about this he was upset with Smith and hetold herthat she should not go downthis road becauseit is an expensive habit thatis really hard to quit. Smith said that after appellant talked to her aboutit she never smoked crack again. (34 RT 7882.) According to Smith, appellant was calm in any situation. She recounted oneparticular instance when appellant was going to kiss his girlfriend and she spit in his mouth. Smith claimed appellant simply told her, “I ain’t trippin’ on you no more”and left. She said appellant always wanted to be loved and if the womanhe wasdating wasnotavailable he would see other womenonthe side to get the attention he needed. (34 RT 7882-7886.) Karisha James lived downthe street from Smith and the two grew up together. Smith introduced James to appellant when James was 16 years old, and she has known appellant for about five years. According to James, 47 she and appellant were just friends, but there was an incident when she and appellant were kissing and hebit her lip so she spit in his mouth and burned him with a lighter. In response, appellant just apologized because he did notrealize he had bit her lip. Jamesstill considers appellant to be a friend and has never knownhim to be violent. (34 RT 7949-7952.) Appellant used to date Tameka Hall’s cousin, Sonia Green. Green lived with Hall, and appellant moved in with them whenhe wasdating Green. Hall had remained in contact with appellant up until the time of Alicia’s murder. Hall never saw appellant becomeangryor violent toward another person. Hall still considered appellantto be a friend, and she said that he was alwaysa great friend to her. (34 RT 7955-7958.) AvondaJones dated appellant for approximately six or seven months in 1995, and they had a son together. They lived together in Jones’ house in Southwest Bakersfield for a short period of time. According to Jones, whenshe got upset with appellant he would just walk away instead of arguing back, and he was neverviolent toward her. Appellant maintained contact with his son even after he and Jones broke up, and his son had spent about seven days with him just prior to Alicia’s murder. Jones considered appellant to be a good father and a good person. (34 RT 7943-7948.) Findley lived with appellant from January of 1996 until he was arrested for Alicia’s murder. She wasattracted to him because he was always smiling andtelling jokes. The thing she liked most about appellant washis playful nature. Appellant was always hyper, except when he listened to music which would usually calm him down. According to Findley, when appellant used drugs it would slow him downand he would usually stay home andfall asleep. (34 RT 7894-7895.) Appellant and Findley argued a lot and during one such argument, Findley hit appellant and he called the police on her. According to Findley, appellant never hit her back and she had never seen him in a physicalfight. 48 The majority of the fights between Findley and appellant centered on the many other women appellant became romantically involved with during the course ofhis relationship with Findley. (34 RT 7895-7897.) b. Defense Psychologist Cecil Whiting, a clinical psychologist, was asked by the defense to conduct a mental status examination of appellant. (34 RT 7901, 7904- 7905.) Dr. Whiting administered four different psychologicaltests to appellant. One of these tests was a neuropsychological battery, which was used to assess cognitive efficiency and functioning. (34 RT 7907.) Dr. Whiting found that appellant did not have any significant problems with _ general cognition and thinking. (34 RT 7909.) To test appellant’s logical reasoning, Dr. Whiting administered two different sets of proverbs, one set of general proverbs and anotherset of proverbs that were more familiar to African-Americans. Appellant provided sophisticated responses to both sets of proverbs, which demonstrated to Dr. Whiting that he had a refined andefficient ability to makelogical associations and deduce meaning from a variety oflife experiences. Dr. Whiting presented appellant with a numberofdifficult situations to test his judgment, and he found that appellant, with some minorproblems, had a tendency to apply and associate good judgment. (34 RT 7909-7910.) Dr. Whiting tested appellant’s short-term memory and found no significant problems. Dr. Whiting, however, did find that appellant’s long- term memoryis mildly impaired, which suggests the presence of repression. Dr. Whiting found that appellant had a mild impairment in concentration, whichis not unusual for adults, such as appellant, who were diagnosed with attention deficit hyperactivity disorder (ADHD)as child. Dr. Whiting also tested appellant’s emotionalstatus, specifically looking at 49 depression and anxiety, and he found no firm indication of any emotional problems. (34 RT 7910-7912.) Dr. Whiting tested appellant’s verbalization and expressive speech, which are broken into several segments including rumination, slurred speech,stuttering, echolalia (repetitive speech) aphasic speech, circumspect speech, and metaphoric speech. He foundthat appellant did not ruminate over words, his speech wasnotslurred, he did not stutter or stammer, there was no echolalia, and he did not have a tendency toward aphasic, circumspect, or metaphoric speech. The only things Dr. Whiting found with respect to appellant’s verbalization and expressive speech were mild indications of African-American Creole English. Dr. Whiting also found that appellant had a mild impairment in the area of perceptive speech, which meansthe ability to hear and understand the speech ofothers. (34 RT 7912-7913.) Ashe was developing appellant’s social history, Dr. Whiting discoveredthat, as an adult, appellant found out that his father was a well- knownstreet hustler and pimp who was murdered by a woman with whom he was having an affair. When Dr. Whiting asked appellant how hefelt about this appellant said he did not know how to feel. To Dr. Whiting, this wasa sign of sensory numbing and repression. A person whorepresses has a tendency to cover up the things goingonin his life by compensating. In Dr. Whiting’s opinion, appellant’s verbal impulsivity and talkative nature are forms of compensation used to cover some psychological pain he may have experienced in the past. (34 RT 7915-7916.) Appellant was raised by a group of children and young adolescents, his siblings, because his mother went back to work as soon as she could after appellant’s father died. Dr. Whiting opined that a child who experiences inconsistent parenting is morelikely to develop functional ADHD,which comes from the environmentrather than somethingthatis 50 brain-based. A child that is reared in that environment mustrelate to five different people’s personalities and ideasofdiscipline. In Dr. Whiting’s opinion,this type of group parenting led to appellant’s tendency,as an adult, to form relationships with controlling women who physically abused him. (34 RT 7917-7919.) Dr. Whiting discovered that appellant’s family is extremely close and they get together for six holidays per year, but these gatherings generally endin either verbal or physical conflict. Appellant’s family sees him as a mediator who will step into the middleofan altercation in orderto try to defuse it. When he was young, appellant would leave the house or go to his room whenevera conflict started. (34 RT 7921-7922.) Dr. Whiting administered a Thematic Appreciation test, which is used to determine whether a person is motivated by power,affiliation, or achievement. Based ontheresults of this test, Dr. Whiting determinedthat appellantis affiliation motivated, which meanshelikes interacting with and being around people. (34 RT 7922-7923.) Dr. Whiting also applied the Luria-Nebraskatest to appellantto determine whetheror not he suffered from brain damage. Theresults of the test showedno brain damage and only some minor learning disabilities. (34 RT 7923-7924.) These disabilities do not have any implications for appellant’s overall generalintelligence; they simply meanthat he may have difficulty with certain tasks. (34 RT 7928.) Dr. Whiting noted two psychological problems with appellant, fear of the dark and fear ofblood. (34 RT 7929.) Dr. Whiting administered the Holmes and RaheLife Stressorstest, which suggested that at the time ofhis arrest appellant was undera great deal of stress. Under conditionsof stress, people tend to revert back to previous behaviors. Based upon his experience, Dr. Whiting’s perception of appellantis that he is a passive,jovial, friendly, and outgoing person. In 51 Dr. Whiting’s opinion, appellant’s personality and psychological characteristics are inconsistent with other people convicted ofsimilar crimes. (34 RT 7930-7932.) Dr. Whiting could not diagnose appellant as currently having ADHD, but he did see some indications of ADHDstill present in appellant. One of these indications is appellant’s verbal impulsivity, or tendency to speak before thinking. Verbal impulsivity can, but does not necessarily, reflect a tendency to make impulsive judgmentsin other areas. Based on his mental status examination, appellant did exhibit some characteristics of impulsive judgment. Dr. Whiting opined, however, that appellant does havethe ability to make good judgments. (34 RT 7934-7937.) c. Prison Expert James W.L.Park testified as an expert in prisonerclassification and prison operation. (34 RT 7968-7969.) According to Park, when appellant wasfirst incarcerated at the age of 20, he adjusted to prisonlife with few problems. He did have some problemswith talking when he should have beenlistening and not cleaninghis cell, but by the timeofhis release he was doing good workin the kitchen and attending Narcotics Anonymous. (34 RT 7976.) According to Park, during appellant’s second incarceration, he built an above average work record. He had some minor housekeeping offenses, but no dangerous ordeadly rule infractions. Appellant’s prison records reflected someverbalaltercations but no physical violence. (34 RT 7977.) In Park’s opinion, appellant was not a modelprisoner, but he was not a real problem prisoner either. Park opined, based on theclassification elements and appellant’s prior behavior while incarcerated, that appellant would be able to adequately adjustto prison life. (34 RT 7977-7978.) 52 ARGUMENT Pre-Trial I. THE TRIAL COURT PROPERLY DENIED APPELLANT’S CHANGE OF VENUE MOTION Appellant claims the trial court prejudicially erred in denying his change of venue motion. (AOB 65-158.) Respondentdisagrees. A. Relevant Record 1. Change of Venue Hearing Appellantfiled his written motion for change of venue on April 16, 1999. (14 CT 3640.) The two-day hearing on the pretrial motion began on May18, and ended on May19, 1999. (14 CT 3824-3831.) Professor Edward Bronsontestified as a change of venue expert for the defense. (16 RT 3853.) Based on his review of the media coverage of this case, Professor Bronsontentatively concluded that appellant’s prospective jury pool would be unfairly guilt and death oriented. (17 RT 3964.) This tentative conclusion prompted him to design a public survey to assess the impactofpretrial publicity on the community. (17 RT 3965.) The results of the public survey confirmedhis tentative conclusion regardingpretrial publicity and, based on these results, he opined that there was a reasonablelikelihood that appellant could notget a jury panel unaffected by pretrial publicity. (17 RT 4018.) Rejecting Professor Bronson’sultimate conclusion, the trial court denied appellant’s motion finding that it was not reasonablylikely that appellant could not receivea fair trial in Kern County. (17 RT 4098-4099.) First, the court addressed the nature and extent of the media coverage. The court recognized that the media coverage was substantial andit included discussion of the brutal nature of someaspects of the crime and the sexual overlay. (17 RT 4090.) It found, however, that there was substantial 53 coverage throughoutthetrial of the defense’s theory that a third party, most likely the victim’s boyfriend, wasthe actualkiller. As to the coverage of the 11-1 verdict from the first trial and the reasonsfor the lone holdout, the court noted that while some jurors were quoted as saying the one juror who did not vote for guilt based his decision on religious beliefs and feelings, the juror himself was also interviewed and he explainedthat he voted not guilty because he had not been persuaded beyonda reasonable doubt. (17 RT 4091.) The court also found that the media did not paint an unsympathetic portrait of appellant. Overall, the court determined that the media coverage had beenfairly evenhandedin its portrayal of both sides of the case. (17 RT 4093.) Regarding the size of the community, the court noted that Kern County wasone of seven counties in California that had a population between 500,000 and 1 million people. Unlike the other six counties, however, Kern County was the only county that spanneda relatively large geographical area. The court also noted that Professor Bronson made no attempt to survey Tehachapi, Mojave, and Rosamondor the even smaller communities of Boron and North Edwards. This fact was significant to the court’s analysis, because the actual venire would be drawn from the smaller outlying communities in Kern Countyin addition to the greater Bakersfield area. (17 RT 4094-4095.) In relation to the nature andgravity of the offense, the court stated, [T]his is a case, as both sides have discussed,this is a case that is aS serious as a case can get in that the defendant’s life is on the line as a potential forfeit as a penalty in this case, and that categorycertainly speaks to the knowledgeofthe jurors who enterthe case, that they are dealing with a case that has an overlay that does not exist in most cases. (17 RT 4095.) 54 Lastly, the court considered the status ofthe victim and appellantin the community. It found that the status of the victim and appellantin this case was the opposite of what you usually find in reported appellate cases on change of venue, in that appellant is a local resident and native of Kern County while the victim wasa resident of Virginia who was planning on moving back to the east coast after graduation. Therefore, the court stated, “[Y]ou don’t have a case of a prominent local person becomingthe victim of a wanderer or a vagabond.” The court did not discount the fact that the victim was humanized by the press, but that was countered bythe fact that appellant was not demonized by the press. Further, the court did not find significant political overtones that have been found in some cases where venue was an issue. (17 RT 4095-4097.) Thecourt also considered the findings of Professor Bronson’s survey. The court specifically looked at the results pertaining to prejudgmentof the case andnotedthat out of the 400 people surveyed, 39% thought appellant was probably guilty, 56% did not know orrefused to answer, and 5% thought he was probably not guilty. Based on Professor Bronson’s testimonythat a survey of the average jury pool wouldyieldresults of between 28 and 40% believing the defendant was probably guilty, the court found thatthe results of the survey in this case did not presenta significant increase in prejudgmentby thepotential venire. Consideringall ofthese factors, the court determined that appellant couldreceive a fairtrial in Kern County. (17 RT 4098-4099.) 2. Jury Voir Dire Voir dire began on June 7, 1999, and 12 jurors and 4 alternates were sworn to try the case on June 18, 1999. (26 RT 6007, 6009.) A brief summary of voir dire for the 12 impaneled jurors is described below. Juror 19834 heard about the case through the newspaper and television coverage, but it was roughly the same information that the court 55 had provided to the prospective jurors on the opening day ofvoir dire. (28 CT 7920; 24 RT 5519.) He had not formed any opinionsas to appellant’s guilt or innocence,and the information he acquired aboutthecase priorto coming to court had not caused him to prejudge the case. (28 CT 7922; 24 RT 5520.) Neither the prosecution nor the defense challenged Juror 19843 for cause. (24 RT 5534.) Juror 47554 had not heard about the case through newspaperor television coverage. (28 CT 7943.) Her mother told her about the murder shortly after it happened, but she did not receive any other information about the case. (21 RT 4686-4687.) She had not formed anyopinionsas to appellant’s guilt or innocence, and the information she acquired about the case prior to coming to court had not causedher to prejudge the case. (28 CT 7945; 21 RT 4687.) Neither the prosecution nor the defense challenged Juror 47554 for cause. (21 RT 4696.) Juror 75727 heard about the case through newspaperandtelevision coverage, but it was roughly the same information the court had provided to the prospective jurors on the opening day of voir dire. (28 CT 7966; 24 RT 5599-5600.) She had not formed any opinionsas to appellant’s guilt or innocence,and the information she acquired about the case prior to coming to court had not caused herto prejudge the case. (28 CT 7968; 24 RT 5600.) Neither the prosecution nor the defense challenged Juror 75727 for cause. (24 RT 5613.) Juror 23537 heard about the case through television coverage, butit was roughly the same information the court provided to the prospective jurors on the opening dayof voir dire. (28 CT 7989; 21 RT 4848-4849.) He had not formed any opinionsasto appellant’s guilt or innocence, and the information he acquired aboutthe case prior to coming to court had not caused him to prejudge the case. (28 CT 7991; 21 RT 4849.) Neither the 56 prosecutionnor the defense challenged Juror 23537 for cause. (21 RT 4858.) Juror 83798 read about the case in the newspaper, but he received more information from the court’s brief description of the case on the opening day of voir dire than he did from thearticle he read. (28 CT 8012; 21 RT 4698.) He had not formed anyopinionsasto appellant’s guilt or innocence, and the information he acquired aboutthe caseprior to coming to court had not caused him to prejudge the case. (28 CT 8014; 21 RT 4698-4699.) Neither the prosecution nor the defense challenged Juror 83798 for cause. (21 RT 4704.) Juror 18695 had not heard anything aboutthis case before comingto court, and she had not formed any opinionsas to appellant’s guilt or innocence. (28 CT 8035, 8037; 22 RT 5105.) Neither the prosecution nor the defense challenged Juror 18695 for cause. (22 RT 5118.) Juror 34529 heard about the case through newspaperandtelevision coverage, but he learned more aboutthe case from the court’s brief description on the opening day of voir dire than he did from the media coverage. (28 CT 8058; 23 RT 5285.) He was not even awarethat appellant had already beentried once before. (23 RT 5285.) He had not formed any opinionsas to appellant’s guilt or innocence, and the information he acquired about the case prior to coming to court had not caused him to prejudgethe case. (28 CT 8060; 23 RT 5285-5286.) Neither the prosecution northe defense challenged Juror 34529 for cause. (23 RT 5294.) Juror 39063 heard about the case through newspaper andtelevision coverage, but it was roughly the same information the court providedto the prospective jurors on the opening day ofvoir dire. (28 CT 8081; 21 RT 4935.) He had not formed any opinions asto appellant’s guilt or innocence,and the information he acquired aboutthe casepriorto coming 57 to court had not caused him to prejudge the case. (28 CT 8083; 21 RT 4935.) Neither the prosecution northe defense challenged Juror 39063 for cause. (21 RT 4944.) Juror 36943 had not heard aboutthe case prior to comingto court, and he had not formed any opinionsasto appellant’s guilt or innocence. (28 CT 8104, 8106.) Neither the prosecution northe defense challenged Juror 36943 for cause. (24 RT 5655.) Juror 95187 heard about the murderandthe mistrial on the news, but he had not read any newspaperarticles about the case. (28 CT 8127; 20 RT 4515.) He had not formed any opinionsas to appellant’s guilt or innocence,and the information he acquired aboutthe case prior to coming to court had not caused him to prejudge the case. (28 CT 8129; 20 RT 4516.) Neither the prosecution nor the defense challenged Juror 95187 for cause. (20 RT 4524.) Juror 39313 had read aboutthe case in the newspaper, but it was no more information than the court providedto the prospective jurors on the opening day of voir dire. (28 CT 8150; 22 RT 5188-5189.) She had not formed any opinions asto appellant’s guilt or innocence, and the information she acquired about the caseprior to comingto court hadnot caused her to prejudge the case. (28 CT 8152; 22 RT 5189.) Neitherthe prosecution northe defense challenged Juror 39313 for cause. (22 RT 5197.) Juror 02941 heard about the case throughtelevision coverage, but she learned more aboutthe case from the court’s brief description on the opening dayofvoir dire than she did from the media coverage. (28 CT 8173; 24 RT 5661-5662.) She had not formed any opinions as to appellant’s guilt or innocence, and the information she acquired aboutthe case prior to coming to court had not caused her to prejudge the case. (28 58 CT 8175; 24 RT 5662.) Neither the prosecution nor the defense challenged Juror 02941 for cause. (24 RT 5668.) At the conclusion of voir dire and prior to swearingin thejury,the defense renewedits motion for change of venue. (26 RT 6002-6005.) The court once again denied the motion. (26 RT 6006.) B. Law and Analysis A change of venue mustbe granted when the defendant demonstrates a reasonable likelihoodthata fair trial cannotbe held in the county. (§ 1033, subd. (a); People v. Vieira (2005) 35 Cal.4th 264, 278-279.) In ruling on the motion,the trial court considers: (1) the nature and gravity of the offense; (2) the nature and extent ofthe news coverage;(3) the size of the community; (4) the status of the defendantin the community; and (5) the popularity and prominence ofthe victim. (Jd. at p. 279.) On appeal,it is the defendant’s burden to show: (1) that denial of the venue motion was error (i.e., a reasonable likelihoodthata fair trial could not be hadat the time the motion was made); and(2) that the error was prejudicial (i.e., a reasonablelikelihoodthata fair trial was not in fact had). (People v. Prince (2007) 40 Cal.4th 1179, 1213.) Reasonable likelihood means something less than “more probable than not” and something more than merely “possible.” (People v. Dennis (1998) 17 Cal.4th 468, 523.) The reviewing court sustains any factual determinations supported by substantial evidence, and independently reviewsthetrial court’s determinationas to the reasonable likelihood of a fair trial. (People v. Hart (1999) 20 Cal.4th 546, 598.) With respect to the first factor, there is no question thatthis caseis as serious as they come,andthetrial court said as muchin its ruling on the motion. (17 RT 4095.) It has long been recognized, however, that the nature and gravity of the offense are not dispositive: “‘The charged offenses were serious and predictably attracted the attention of the media. 59 But, . . . the same could be said of most multiple or capital murders. This factoris notdispositive.” (People v. Dennis, supra, 17 Cal.4th at p. 523, quoting People v. Pride (1992) 3 Cal.4th 195, 224.) Asto the secondfactor, in 1999, Kern County had a population of 648,000 people, ranking 14 out of 58 counties in California in population size. (17 RT 3949.) “Cases in which venue changes were granted. or ordered on review have usually involved counties with much smaller populations.” (People v. Balderas (1985) 41 Cal.3d 144, 178-179,citing Williams v. Superior Court (1983) 34 Cal.3d 584, 592 [Placer County, 117,000 population]; Martinez v. Superior Court (1981) 29 Cal.3d 574, 582 [same, 106,500 population]; Frazier v. Superior Court (1971) 5 Cal.3d 287 293, fn. 5 [Santa Cruz County, 123,800 population]; People v. Tidwell (1970) 3 Cal.3d 62, 64 [Lassen County, 17,500 population]; Fain v. Superior Court (1970) 2 Cal.3d 46, 52, fn. 1 [Stanislaus County, 184,600 population]; Maine v. Superior Court (1968) 68 Cal.2d 375, 385, fn. 10 [Mendocino County, 51,200 population].) In fact, denials of requests for ? venue changes have been upheld in cases involving counties with significantly smaller populations than Kern County’s was at the time of appellant’s trial. [See People v. Vieira (2005) 35 Cal.4th 264, 280-283 [Stanislaus County, population 370,000]; People v. Weaver (2001) 26 Cal.4th 876, 905 [Kern County, population 450,000]; People v. Hayes (1999) 21 Cal.4th 1211, 1251 [Santa Cruz County, under 200,000 population] People v. Coleman (1989) 48 Cal.3d 112, 134 [Sonoma County, 299,681 population].) Thus, Kern County’s size does not weighin favor of a change of venue. Asforthe status of appellant and the prominenceofthevictim, neither appellant nor the victim were prominentor notorious apart from their connection with the current case. Asthetrial court pointedout, appellant was a native of Kern County and the victim was a resident of 60 Virginia who planned to move backto the east coast after graduation. (17 RT 4095-4096.) Thus, this wasnota case ofa local person being killed by a transient. (17 RT 4096.) Appellant complains of the potential for prejudice caused by the murder of a young white womanbya black man. (AOB 84.) This Court, however, has foundthat “[t]his elementofpossible prejudice presumably would follow the case to any other venue.” (People v. Prince, supra, 40 Cal.4th at p. 1214.) Furthermore, the defense’s own expert stated that only onearticle actually mentioned appellant’s race (16 RT 3938), and the coverage certainly did not emphasize appellant’s race or use inflammatory racial terms. (See ibid.) Appellant claims the elevated status given to him andthe victim bythe publicity following the murderis determinative ofthe issue. (AOB 128-129.) This Court, however, has found, [a]ny uniquely heightened features of the case that gave the victim[] and defendant any prominencein the wakeofthe crimes, which a change ofvenue normally attempts to alleviate, would inevitably have become apparent no matter where defendant wastried. (People v. Prince, supra, 40 Cal.4th at p. 1214, quoting People v. Dennis, supra, 17 Cal.4th at p. 523.) Appellant’s claim thatthis line of reasoning effectively eliminates the status of the defendant and victim as factor in the analysis (AOB 132-133)is based on the incorrect assumption thatit is their status after the crimethat is relevant. In fact, it is their status prior to the crime that is relevant to this particular issue (see People v. Prince, supra, 40 Cal.4th at 1214; People v. Ramirez (2006) 39 Cal.4th 398, 434), and respondent submits that post-crime publicity is more appropriately addressed under the category of nature and extent of media coverage. The trial court found there was substantial media coverageofthis case that included information aboutthe brutal and sexual nature of the crime. (17 RT 4090.) However, even where the media coverage has been 61 characterized as “saturation,” this Court has found noerrorin the denial of a motion for change of venue where the “defendant did not show that the media coverage was unfair or slanted against him orrevealed incriminating facts that were not introducedattrial.” (People v. Ramirez, supra, 39 Cal.4th at p. 434.) The trial court in this case found the coverage to be evenhandedin the way that it covered both prosecution and defense theories of the case, and did not portray appellant as an unsympathetic person. (17 RT 4093.) The record supports thetrial court’s conclusion that the media reported both prosecution and defense theories of the case. (14 CT 3720-3733.) While the media did report that appellant had prior theft and drug related convictions,the trial court correctly found these facts were not used to make appellant out to be a bad person but, instead, they were used to showthat he had a non-violent past. (14 CT 3703-3704, 3711- 3712; 17 RT 4093.) The coveragealso included statements from appellant’s girlfriend and sister professing his innocence (14 CT 3687- 3690, 3695-3696, 3711-3712, 3714, 3723), and more than onearticle noted that appellant had previously worked for the SPCA and Bakersfield Police Department (14 CT 3687-3688, 3711-3712). Furthermore, the majority of the newspaperarticles were well over one yearold at the start of the second trial (14 CT 3668-3736; 30 CT 8680-8749), and the mostrecent article was printed three monthspriorto the start of the secondtrial (30 CT 8748- 8749). The last recorded television segment was aired over one month priorto the start of the secondtrial. (29 CT 8407; 30 CT 8593.) “The passage oftime ordinarily blunts the prejudicial impact ofwidespread publicity.” (People v. Prince, supra, 40 Cal.4th at p. 1214.) Moreover, the passage of time appears to have had the expected effect in this instance. Amongthe 12 seated jurors, 2 knew nothing aboutthe case prior to coming to court, and the remaining 10 rememberedfew specifics. (See People v. Prince, supra, 40 Cal.4th at p. 1215 [vague recollection of 62 past news coverage suggests absenceofprejudice].) Most of the jurors whohadprior knowledgeofthe case indicated they knew the sameor fewer details about the case than what the judgetoldall prospective Jurors on the first day of voir dire. (21 RT 4698, 4848-4849, 4935; 22 RT 5188-5189; 23 RT 5285; 24 RT 5519, 5599-5600, 5661-5662.) More importantly, the jurors with prior knowledge ofthe case asserted that they had not prejudged the case based on this prior knowledge andall 12 seated jurors indicted they had not formed any opinion as to appellant’s guilt or innocence. (28 CT 7922, 7945, 7968, 7991, 8014, 8037, 8060, 8083, 8129, 8152, 8175; 20 RT 4516; 21 RT 4687, 4698-4699, 4849, 4935; 22 RT 5105, 5189; 23 RT 5285-5286; 24 RT 5520, 5600, 5662.) This record simply does not support appellant’s contention that he could not have had and did not havea fair trial in Kern County. Appellant insists that voir dire is not an effective indicator of prejudice and the jurors’ assurances regarding their ability to be impartial cannotbe trusted. (AOB 139-157.) Although “such assurancesare not conclusive”[citation], neither do we presumethat exposureto the publicity, by itself, causes jurors to prejudge a defendant’s guilt or otherwise become biased. [Citation.] (People v. Prince, supra, 40 Cal.4th at p. 1215.) Here, appellant presumes juror bias based on mere exposureto pretrial publicity and his belief that voir dire cannot adequately expose those biases. Appellant’s argument on appeal doesnotchallenge anyspecific responsesof the seated jurors as indicating they could not befair and unbiased. It is also importantto note that the jury actually found appellant not guilty on counts 4 and 5, which tends to negate his contention that the jury was actually biased against him. Appellant simply fails to show that he,in fact, did not receive a fairtrial by an impartial jury. 63 In addition, none of the seated jurors were challenged for cause. (20 RT 4524; 21 RT 4696, 4704, 4858, 4944; 22 RT 5118, 5197; 23 RT 5294; 24 RT 5534, 5613, 5655, 5668; see People v. Farley (2009) 46 Cal.4th 1053, 1085,citing Beck v. Washington (1962) 369 U.S. 541, 557-558 [the circumstancethat the defendantdid not challenge for cause any of the jurorsselected “is strong evidence that he was convinced the jurors were not biased”’].) Nor did defense counseluse all of their 20 allotted peremptory challenges to excuse jurors from the panel. (26 RT 5993, 6006.) As this Court has repeatedly affirmed, “Thefailure to exhaust peremptoriesis a strong indication that the jurors were fair, and that the defenseitself so concluded.” (People v. Dennis, supra, 17 Cal.4th atp. 524, citing People v. Price (1991) | Cal.4th 324, 393 [internal quotation marks omitted].) This last point has proved decisive in affirming the denial of a motion to change venue. (See People v. Dennis, supra, 17 Cal.4th atp. 524; People v. Sanders (1995) 11 Cal.4th 475, 507; People v. Daniels (1991) 52 Cal.3d 815, 853-854.) Respondent recognizes that defense counselstated on the record that they werenotsatisfied with the final panel ofjurors but were purposefully not goingto usetheir final peremptory challenge becausethe prosecutorstill had several peremptories left. (26 RT 5993, 6006.) Respondent submits the likelihood of any attorney being completely satisfied with a jury is presumably quite rare. Furthermore,it seemslikely that had defense counsel believed someone remaining on the jury panel was actually biased against appellant, they would have exercised their last peremptory challenge even if that may have allowed someone equally undesirable onto the panel. To hold any differently would effectively negate the prior cited authority on this point. Appellant makes several other contentions related to the change of venue motion. First, appellant claimsthe trial court erroneously excluded the expert’s opinion that appellant could not beginhis trial with the 64 presumption of innocenceintact. (AOB 100.) Theauthority that appellant cites does not support his claim that the trial court erroneously excluded this portion of the expert’s testimony. It merely states that a court may base its decision on whetherto grant or deny a change of venue motion on opinion testimony offered by individuals. (Williams v. Superior Court, supra, 34 Cal.3d at p. 588.) Furthermore, appellant has failed to show how he wasprejudiced bythetrial court’s exclusionofthis testimony. Thus, this claim should be rejected. Second, appellant attempts to distinguish his case from Prince and Ramirez, recent cases in which this Court affirmed denials of change of venue motionsin high-publicity cases. (AOB 134-138.) Respondentfails to see any meaningful distinction between these cases and appellant’s case. In People v. Prince, supra, 40 Cal.4th 1179, the defendant was sentencedto death after being convictedof six countsoffirst degree murder, five counts of burglary, and one countofrape. (/d. at p. 1189.) In People v. Ramirez, supra, 30 Cal.4th 398, the defendant was sentencedto death after being convicted of 12 countsoffirst degree murder, one count of second degree murder, five counts of attempted murder, four counts of rape, three counts of forcible oral copulation, four counts of forcible sodomy, and 14 counts offirst degree burglary. (/d. at p. 407.) Respondent submits that the nature of these crimes which involved multiple murders with sexual undertones would be more,notless, prejudicial than the nature of appellant’s crime which was one murderwith sexual undertones. Furthermore, the same potential for racial prejudice that appellant claims waspresentin his case was also present in Prince, but to an even higher degree becauseall of the victims were white women andthe defendant was a black man. (Peoplev. Prince, supra, 40 Cal.4th at p. 1214.) Yet this Court still affirmed the denial of the change of venue motion in thatcase, finding that the publicity did not emphasize the defendant’s race andthis type ofpotential prejudice 65 would follow the case to any other venue. (/bid.) Respondent submits the same reasoning applies to appellant’s case. Appellant attempts to distinguish his case from Prince and Ramirez by the nature and amountofpretrial publicity. (AOB 134-138.) In Ramirez, however,the trial court characterized the media coverageas “saturation.” (People v. Ramirez, supra, 39 Cal.4th at p. 434.) The media coverage in appellant’s case was substantial, as the trial court noted, butit can hardly be characterized as saturation. Furthermore, as was also found in Prince, the initial frenzy of publicity that occurred right after the murder in this case had tapered off by the start ofthe trial two years later. In addition, as was also found in Ramirez, appellant has failed to show that the media was slanted against him andthetrial court, in fact, found the coverage was evenhanded. Appellant appears to argue that the most significant distinction between Prince and Ramirezandhis caseis the size of the community. (AOB 135, 137-138.) While San Diego and Los Angeles Counties did have larger populations than Kern County,it can hardly be said that Kern County was small. Furthermore, respondent submitsthis distinction alone is not enoughto show that the reasoning employed by this Court in Prince and Ramirez to affirm the denial of the change of venue motions shouldnotalso be applied to appellant’s case. As argued above, appellant has simply failed to showthat the trial court’s denial of his change of venue motion was erroneous. Lastly, appellant claimsthe pretrial publicity also biased the jury in favor of the death penalty. (AOB 157.) Appellant cites few facts and no legal authority in support ofthis claim. (See Cal. Rules of Court, rule 8.204(a)(1)(B).) The only support appellant gives for this claim is that the media humanizedthe victim and made multiple references to the death penalty. (AOB 157.) Appellant does not make specific claims of prejudice 66 against actualjurors, and respondent submits such claims would not be supported by the record. This claim shouldbe rejected forlack of factual and legal support. In sum,thetrial court properly denied appellant’s change of venue motion, because examination ofthe relevant factors did not show a reasonable likelihood that a fair trial could not be had in Kern County. Moreover, appellant has failed to show a reasonablelikelihoodthat he in fact did not receive a fair trial. As such, appellant’s claim must be rejected. I]. THE TRIAL COURT SUFFICIENTLY QUESTIONED PROSPECTIVE JURORS ON RACIAL BIAS THROUGH THE USE OF A JUROR QUESTIONNAIRE AND INDIVIDUALIZED VOIR DIRE Appellant claimsthetrial court erred in limiting questions relating to race in the juror questionnaire andin individualized voir dire. (AOB 159- 172.) Respondentdisagrees. A. Relevant Record Priorto trial, appellant filed in limine motionsto allow extensive questioning regardingracial bias (14 CT 3850-3855) and attomey conducted, individual sequestered voir dire (14 CT 3890-3902). Appellant also submitted a proposed juror questionnaire which included questions on racial bias. (16 CT 4462-4486.) Thetrial court excludedfive ofthe defense’s proposed questionsonracial bias and allowed nine such questions to remain on the questionnaire. (16 CT 4479-4482; 18 CT 5059- 5061; 18 RT 4178-4187.) Thetrial court denied appellant’s motions to allow extensive questioning regardingracial bias (18 RT 4206-4207) and attorney conducted, individual sequestered voir dire (18 RT 42 14). The trial court indicated, however, that during individual voir dire, it would allow further questioning related to answersgiven to questions on the juror questionnaire. (18 RT 4207-4208.) 67 B. Law and Analysis In California, voir dire in criminal cases is governed by CodeofCivil Procedure, section 223. This section requires that initial examination of prospective jurors be conducted by the court, which may include questions requested by the parties as the court deems proper. Aftertheinitial examination by the court, the parties have the right to question the prospective jurors. The court, however, has the discretion to limit oral and direct questioning ofjurors by counsel. Unless the exercise ofthis discretion results in a miscarriage ofjustice under Section 13 of Article VI of the California Constitution, reversal of a conviction cannot be based on the trial court’s exercise of discretion under this section. (Code Civ. Proc., § 223.) . The United States Supreme Court has held that a capital defendant accused ofan interracial crimeis entitled to have prospective jurors informed ofthe race of the victim and questionedonthe issue ofracialbias. (Turner v. Murray (1986) 476 U.S. 28, 36-37; see also People v. Holt (1997) 15 Cal.4th 619, 661.) Even with this requirement, the trial judge retains discretion as to the form and number of questions on the subject, including the decision whetherto question the venire individually or collectively. (Turner v. Murray, supra, 476 U.S.at p. 37.) Furthermore, “a defendant cannot complain of a judge’s failure to question the venire on racial prejudice unless the defendant has specifically requested such an inquiry.” (Ibid. ) Here, appellant’s claim that the trial court improperly restricted questioning ofprospective jurors on racialbias is simply without merit. Thetrial court allowed nine questions on racial bias proposed by appellant to remain in the juror questionnaire. (16 CT 4479-4482.) In addition, the 68 trial court further examined prospective jurors on their answersto these questions during individual voir dire. (19 RT 4350-4513; 20 RT 4514- 4661; 21 RT 4662-4956; 22 RT 4957-5219; 23 RT 5221-5514; 24 RT 5515-5766.) The first of the five rejected questions that appellant complains of asked prospective jurors for their opinions on interracial marriage. (16 CT 4480.) Any information aboutracial bias that could have been revealed by this question would havelikely been revealed by question number 50, which asked for prospective jurors’ opinionsoninterracial sexualrelationships. In addition, as thetrial court noted, interracial marriage wasa collateral issue. (18 RT 4181-4182.) This question was both redundant andirrelevantto the facts of the case andthetrial court properly excludedit from the questionnaire. The second question that the trial court excluded asked for the racial composition ofthe jurors’ neighborhoods. (16 CT 4480.) Defense counsel indicated the objective of this question was to revealsocialor personal contacts. (18 RT 4182.) As thetrial court correctly found,the fact that a juror lives in a neighborhood with two black families does notitself indicate that the juror has any feelings about those families either positive or negative. (18 RT 4182-4183.) Furthermore, question number 52 directly asked jurors whether they socialized with people of ethnic backgroundsdifferent from their own, which would havedirectly yielded information on the jurors’ personal and social contacts. Thetrial court rejected question number 60 becauseit started with the presumption that black people complain about racial discrimination. (16 CT 4481;18 RT 4185.) Thetrial court rejected question number 61 because it believed that the same,if not more, information would be revealed bya previous question. (18 RT 4185.) The form of question 62 wassuch that the trial court thoughtit could notbe salvaged, andit wasrejectedforthat reason. (18 RT 4187.) As noted above,the trial court retains wide 69 discretion in determining the number and form ofquestions onracialbias. (Turner v. Murray, supra, 476 U.S.at p. 37.) The court’s rejection ofthese three questions was thus a proper exercise ofits discretion. Furthermore,the trial court was not required ‘“to ask anyparticular numberof questions on the subject, simply because requested to do so by [appellant].”’ (People v. Wilborn (1999) 70 Cal.App.4th 339, 348.) Under this standard, appellant has failed to show howthetrial court’s exclusion of the five previously mentioned questions from the juror questionnaire constituted an abuse ofdiscretion. Respondent submits appellant has also failed to show how further questioning by counsel would have revealed racial bias that was not revealed by the nine questions onracial bias in the juror questionnaire and the court’s follow-up in individual voir dire on the answers to those questions. Appellant cites several cases that all provide the correct legal standard when dealing with racial bias in jury selection (AOB 167-169), but none of those cases actually support his claim that the trial court abused its discretion in the present case. In Turner and Wilborn, supra, the trial court refused to make any inquiry into racial bias or prejudice of prospective jurors. (Turner v. Murray, supra, 476 U.S.at pp. 31-32; People v. Wilborn, supra, 70 Cal.App.4th at p. 343.) On appeal, thetrial courts’ failure to make any inquiry into racial bias ofprospective jurors was found to be a violation of appellant’s constitutionalrights to a fair trial and impartial jury. (Turner v. Murray, supra, 476 US.at p. 36; People v. Wilborn, supra, 70 Cal.App.4th at p. 348.) Here,the trial court did inquire into potential racial bias of prospective jurors through both the juror questionnaire and follow- up on individualvoir dire, thus, distinguishing appellant’s case from both Turner and Wilborn. Appellant also cites People v. Holt, supra, in which prospective jurors had to complete a juror questionnaire, which was supplemented by 70 additional questioning by the court and counsel. (People v. Holt, supra, 15 Cal.4th at p. 661.) After reviewing the record of voirdire, this Court determined that the inquiry into racial bias met the constitutional requirements of the Sixth and Fourteenth Amendments. (Jbid.) Appellant’s case is similar to Holt in that prospective jurors hadto fill out a questionnaire which included nine questions onracial bias and those inquiries were supplemented by further questioning during individual voir dire. While the follow-up questioning here was done bythe court alone, the court did allow counsel to submita list of questions from the questionnaire for each prospective juror that they wantedthe court to make further inquiries about. (18 RT 4208.) Based onthe factual similarities in the types of questioning, respondent submits that this Court’s ruling in Holt supports rather than negatesa finding thatthe trial court in appellant’s case made an adequate inquiry into racial bias of prospective jurors. Not only has appellant failed to demonstrate howthetrial court’s inquiry into racial bias violated his federal constitutionalrights to a fair trial and impartial jury, but he has also failed to show abuseof discretion under state law standards. As noted above,state law requiresinitial questioning of prospective jurors be conducted by the judge andallowsfor limited questioning by counselat the court’s discretion. (Code Civ. Proc., § 223.) That is precisely what occurred here. After filling out the questionnaire, each ofthe prospective jurors wasindividually questioned by the court regarding the answers they gave and then counsel were given a limited opportunity for questioning. Respondent submits the method of conducting voir dire in this case fell within the bounds of Code of Civil Procedure section 223. Assuming, arguendo, there waserror, appellantfails to show prejudice understate or federal standards. Understate law,thetrial court’s exercise of discretion cannot be the basis of a reversal unlessit constitutes a 71 “miscarriage ofjustice.” (Code Civ. Proc., § 223.) As determinedbythis Court, a “miscarriage ofjustice” occurs whenit is “reasonably probable that a result more favorable to the appealing party would have been reached in the absenceofthe error.” (People v. Watson (1956) 46 Cal.2d 818, 836.) Underfederal constitutional standards,an error is not prejudicialif it can be found harmless beyond a reasonable doubt. (Chapmanv. California (1967) 386 U.S. 18, 24.) Based on the above analysis, respondent submitsit is not reasonably probable that further questioning would have yielded a more favorable result, and any error was harmless beyonda reasonable doubt. In sum,underboth federal and state standards,thetrial court properly exercised its discretion anderror, if any, was harmless. Il. THE TRIAL COURT PROPERLY DENIED APPELLANT’S BATSON/WHEELER CHALLENGE TO THE PROSECUTOR’S PEREMPTORY STRIKES OF TWO AFRICAN-AMERICAN JURORS Appellant contends thatthe trial court erred in denyinghis Batson/Wheeler*' motion. Specifically, he contends the court erroneously found no primafacie case of purposeful discrimination in the prosecutor’s use of peremptory challengesto strike two African-Americans from the | jury. (AOB 173-191.) Appellant’s contention should be rejected. Thetrial court correctly found that appellant failed to show a primafacie case of groupbias. *! Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258. 72 A. Relevant Proceedings The defense brought a Wheeler motion”after the prosecution exercised peremptory challenges against two African-American jurors; the following proceedings ensued: [DEFENSE COUNSEL] Yes, your Honor. Asthe court is well aware, weare very sensitive to the fact that the African- Americans are under representedin this panel. We have precious few. One African-American, Mr. Clark (190001863), was excused peremptorily. I did not make an objection at that time because my understanding of Wheeler is one peremptory won’t do it. However, for the record, I did feel that Mr. Clark (190001863) was qualified and I don’t think he showed anybias one way or another. At any rate, your Honor, Ms. Porche (190003287) was also a woman of mixedraces, but the African- American in her wasobvious. I don’t think there was anything that she said during the voir dire that showeda bias or unwillingness orinability to be fair and impartialin thistrial. AndI believe that she was excluded because she wasatleast partially African-American. And I do need to add, your Honor,that duringthelast trial — I needto get it on the record. Duringthelast trial we had — there was one African-American and the rest were essentially Caucasians, one lady did have a Spanish surnamebut she did have reddish hair and very light skin. And, the one person who wasthe hold out, that is, the one person who wouldnotvote for Mr. Harris’ guilt, was African-American. And I am concerned that Mr. Somersis excusing African-Americansontheir race becausehe feels that they will not vote guilty this time. Andit is an unconstitutional exclusion. Did you want to add anything Ms. Mueller? Submitit onthat, your Honor. ” An objection referencing only Wheeleris sufficient to preserve a Batson claim beingraised for thefirst time on appeal becausethe claims are so closely related. (People v. Cornwell (2005) 37 Cal.4th 50, 66, fn.3.) 73 THE COURT: Wasn’t Ms. Porche (190003287) the young college lady, who actually even brought in paperwork? Not brought in paperwork, but raised twice with us her concern about being in college andbeing held up bynotgetting into summersession? [DEFENSE COUNSEL]: She mayhavebeen, your Honor. But the judgedid not find that sufficient for challenge for cause. THE COURT: Correct. Weare talking peremptories now, of course. In any event, I do not, based upon those two peremptories,find a prima facie showing of willful exclusion of aracial group. However, as is my custom andpractice,I will hear from you, Mr. Somers, if you wish to do so. With that not being takenas anindication that the court findsthere is a prima facie showing. [PROSECUTOR]: At this point in time, your Honor,since there is no finding of a prima facie showing,I will notstate for — the reasons for the challenge. Also, 1 would like to make just a couple of notes as to the primafaciecase. First ofall, it has been indicated by counsel, there is — basically counsel says that African-Americans are severely under represented in the panel. Actually, assuming Ms. Porche (190003287) is treated as African-American, which, obviously, she is for purposes of the motion by the defense or we would not be here,actually we had three out of 69 jurors who wereatleast — portion or bulk of African-Americans represented, which one calculates it out, works out to roughly five percent population in the county. So I don’t think they can be characterized as under represented in the panel. Secondofall, I would just note, obviously weare all awareof, for the record, that Mr. (Xxxxx) (092105), who was African- American, was the hold-out juror on several panels. Of course, did vote to convict on Count 8 of the amendedinformation. I would makethosenotes. But I don’t have any reasonsto state at this time, in view of the court’s finding there is no prima facie showing. (26 RT 5983-5986.) 74 B. Applicable Legal Principles Boththe state and federal Constitutions prohibit the use of peremptory challenges to exclude prospective jurors based onrace. (People v. Wheeler, supra, 22 Cal.3d at pp. 276-277; Batson v. Kentucky, supra, 476 U.S.at p. 97.) The discriminatory use of peremptory challenges violates the right of a criminal defendanttotrial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution . . . [and] the defendant’s right to equal protection under the Fourteenth Amendmentto the United States Constitution. (People v. Avila (2006) 38 Cal.4th 491, 541.) It is presumed that a prosecutor who uses a peremptory challenge does so for a purpose otherthan to discriminate. (People v. Griffin (2004) 33 Cal.4th 536, 554; People v. Wheeler, supra, 22 Cal.3datpp. 278.) The first step in a Batson/Wheeler analysis requires a defendant to make a prima facie case of discrimination. (Johnson v. California (2005) 545 U.S. 162, 168; Batson v. Kentucky, supra, 476 U.S.at pp. 93-94; People v. Bonilla (2007) 41 Cal.4th 313, 341; People v. Wheeler, supra, 22 Cal.3d at p. 280- 281.) Second, if a defendant has made a primafacie case of purposeful discrimination, a prosecutor must then provide race-neutral reasons explaining his or her use of peremptory challengesas to the excluded jurors in question. (Johnson v. California, supra, 545 U.S.at p. 168; People v. Bonilla, supra, 41 Cal.4th at p. 341; People v. Wheeler, supra, 22 Cal.3d at pp. 281-282.) Third,a trial court must then determine whether the defendant proved purposeful discrimination. (Johnson v. California, supra, 545 U.S.at p. 168; People v. Bonilla, supra, 41 Cal.4th at p. 341; People v. Wheeler, supra, 22 Cal.3d at p. 282.) The same three-step procedure applies to state constitutional claims. (People v. Bell (2007) 40 Cal.4th 582, 596.) 75 A prima facie case of discrimination is established when a defendant produces “evidencesufficient to permitthe trial judge to draw an inference that discrimination has occurred.” [Citation.] An inferenceis a logical conclusion based on setoffacts. (People v. Lancaster (2007) 41 Cal.4th 50, 74, quoting andciting Johnson v. California, supra, 545 U.S.at p. 168, fn. 4, 170.) The proof of a prima facie case may depend uponall relevant evidence in trial court record. (People v. Bell, supra, 40 Cal.4th at p. 597.) This Court has found the following types of evidence particularly relevantin this context: (1) that the prosecutor“struck mostorall of the membersofthe identified group from the venire, or has used a disproportionate number of peremptories against the group;”(2) that the only shared characteristic between the challenged jurors is their membership in the group andin all otherrespects they are indistinguishable from any other member of the community; (3) that the prosecutor failed to engage these jurors in meaningful voir dire; and (4) that the defendant is a memberof the excluded group. (/bid.) The reviewing court “will affirm the ruling where the record suggests grounds upon which the prosecutor might reasonably have challenged thejurors in question.” (People v. Farnam (2002) 28 Cal.4th 107, 135.) While it is proper for the trial court to examinethe responsesof other Jurors in considering whether the defendant has madea primafacie case of a Wheelerviolation “such an examination forthe first time on appealis unreliable.” (People v. Cornwell (2005) 37 Cal.4th 50, 71, overruled on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421.) Comparative juror analysis haslittle or no use where a groupbiasanalysis does not hinge on the prosecution’s actual proffered rationales for peremptory challenges. Moreover, Miller-El v. Dretke (2005) 545 U.S. 231, does not mandate comparative analysis when a Batson/Wheeler 76 motion was deniedafter the trial court concluded defendant had not made a prima facie showing of discriminatory exercise of peremptory challenges. (People v. Howard (2008) 42 Cal.4th 1000, 1019.) In considering the denial of a prima facie showing,a reviewing court should not attemptits own comparative analysis for the first time on appeal. (People v. Yeoman (2003) 31 Cal.4th 93, 116.) C. Discussion As appellant asserts (AOB 178), in this case thetrial court did not expressly state the standard it used in determining whether appellant had made a prima facie case of race-based peremptory strikes (26 RT 5983- 5986). Whereit is unclear whetherthe trial court applied the correct standard, we review the record independently to “apply the high court’s standard and resolve the /egal question whether the recordsupports an inference that the prosecutor excused a juror” on a prohibited discriminatory basis. (People v. Bell, supra, 40 Cal.4th at p. 597, quoting People v. Cornwell, supra, 37 Cal.4th at p. 73; emphasis in original.) Respondent submits that an independentreview of the record andrelevant factors support thetrial court’s finding of no primafacie case ofracial discrimination. Appellant claims the prosecutor challenged Jurors H.C. (190001863) and K.P. (190003287) because they were African-Americans. (AOB 173- 191.) The record, however, suggests group-neutral reasonsfor the prosecutor’s challenges. Juror H.C. wasthe head basketball coach at CSUB,andheindicated that he knew eight of the potential witnessesin the case because they all worked at CSUB. (24 CT 6690-6697; 23 RT 5234- 5235.) Juror H.C. specifically mentioned that potential witness Jim Ave was his team’sathletic trainer. (23 RT 5235.) Juror H.C.also expressed concern that, in working at CSUB, he mayhave crossedpathswith the victim or appellant. (24 CT 6702.) Based on these responses, the 77 prosecutor could have reasonably concluded that Juror H.C. was too closely connectedto the caseto sit as an impartial juror. Particularly because Juror H.C. appeared to have a relationship with Ave, wholived in the same apartment complex as the victim and who would be offering testimony about his observations of the victim’s car on the night of the murder. What is even moretroublingis Juror H.C.’s response to Question 59 of the juror questionnaire, which asked whetherthe fact that appellant was African- American would make it moredifficult to considerall of the facts objectively than if he were not a Black man. (18 CT 5061.) Juror H.C. marked yes in responseto this question and the following explanation occurred during individual voirdire: [THE COURT]: Question 59 asked would the fact that Mr. Harris is African-American — it says African America, butit’s supposed to be African-American — makeit moredifficult for you to considerall the facts in the case objectively than if he were not a black man,and you checkedyes. Could youtell us little bit about that? [JUROR H.C.]: Well, I just know — you know, even when I walkedin the courtroom the very first day, I think, which was Monday,any time you look up — I’m trying to explain it the best way. If I’m in a ballpark and if I see someone else whois black, then I make eye contact with that person. [THE COURT]: Sure. [JUROR H.C.]: It’s an unwritten rule somewhere along the line that that’s what happens, andsoit’s just that I think people —you know,perceptions would look and say okay,he is black and heis black and there’s going to be sometie in there, and there’s probably something there along theline, though, but the point that he is black and he is here and I am here, there’s always going to be somethingthere, but I will be ableto listen to the facts and makea decision on the facts, yes, but there is 78 something that’s there that, as I’m finding out right now,is unexplainable, but there’s somethingthere. (24 CT 6700; 23 RT 5238-5239.) Respondent submits no reasonable prosecutor would have kept Juror H.C. on the panel after learning that he felt an unspoken connection with the defendant. The record also suggests race-neutral reasons for the prosecutor’s challenge of Juror K.P. Juror K.P.’s brother had been arrested for possessing marijuanafor sale, and proceedings were currently pending in Kern County juvenile court. (21 RT 4913-4914.) The prosecutor could have reasonably concluded that Juror K.P. might harborbias against the prosecution because her brother was currently going through juvenile delinquency proceedings in the same county andinstituted by the same prosecuting agency,or that she may developa bias against the prosecution depending on howherbrother’s case progresses. Juror K.P. also informed the court that she wasstarting summerschoolthe following week andif she wasselected to serve on the jury she would haveto drop two classes which would prevent her from completing her degree requirements that fall, and would ultimately force her to postponetransferring to a four-year collegein the spring. (21 RT 4927-4929; 25 RT 5849-5850.) From this, the prosecutor could have reasonably concludedthat, if chosen to sit on the jury, Juror K.P. would have been distracted by the fact that she was missing summer school and would haveto postpone her plans of completing her AA requirements and transferring to another school, and would not be devoting herfull attention to the case. | Additional factors further support the trial court’s finding. Only two of the prosecutor’s 20 peremptory challenges were exercised against African-Americans. (See People v. Bell, supra, 40 Cal.4th at p. 598 [finding prosecutordidnot use disproportionate number of peremptory challenges against particular group when only twooutof 16 peremptory 79 challenges were exercised against that group].) While the prosecutor did exercise peremptory challenges against two out of three African- Americans, “the small absolute size of the sample makes drawing an inference of discrimination from this fact alone impossible.” (/d. at pp. 597-598; see also People v. Farnam, supra, 28 Cal.4th at pp. 136-137 [finding no prima facie showing where only stated bases for disputing the peremptory challenges were (1) four of the first five peremptory challenges were against African-Americans, and (2) a small minority of the panel members were African-American].) Appellant acknowledgesin his opening brief that this Court has disapproved the use ofjuror question-and-answer comparisonsat the first stage of Batson analysis (AOB 180, 187, 189), but then proceeds to conduct the very analysis that he acknowledges is inappropriate (AOB 181-186). Appellant further compoundsthe erroneousnatureofthis analysis by limiting its scope to only those questions and answersrelating to death qualification. As respondenthas detailed above, there were several reasons, unrelated to death qualification, why the prosecutor would have exercised peremptory challenges against the two jurors in question. Respondent submits a comparison analysis is inappropriate and unreliablein this case, and a review ofthe appropriate factors showsrace neutral reasons for the prosecutor’s dismissal of Jurors H.C. and K.P. Furthermore, appellant fails to make any meaningfuldistinction between his case and People v. Bell, supra, 40 Cal.4th 582. (AOB 187- 191.) Appellant claims that a different outcomeis warranted in this case because he is a memberofthe disfavored group (African-Americans), unlike the defendant in Bell who was not a memberofthe disfavored group (African-American women). (AOB 188.) Whether the defendantis or is not a memberofthe excluded group is not a prerequisite to a Batson/Wheeler challenge, but only one factor that the court may consider. 80 (Id. at p. 597.) As discussed above, the weight of the remaining factors cut against appellant’s argumentoferror. In sum, the record showsthat the trial court here properly performed its duties and correctly found no primafacie case of group bias. Reversalis therefore unwarranted. IV. THE TRIAL COURT ACTED WITHIN ITS BROAD DISCRETION IN DENYING APPELLANT’S CHALLENGE FOR CAUSE Appellantasserts the trial court erroneously denied the defense’s challenge for cause against Alternate** Juror R.C. (190089910). (AOB 192-207.) Appellant did not preserve this issue for appeal as he did not exercise a peremptory challenge against Alternate Juror R.C., exhaust all of his peremptory challenges, or express dissatisfaction with the panel of alternates ultimately sworn. (26 RT 6007-6009.) Further, because Alternate Juror R.C. was never substituted in for one of the 12 sworn jurors and did not rendera verdictin this case, appellant cannot demonstrate he was deniedhis right to an impartial jury. Finally, review of the record demonstrates that the trial court properly denied appellant’s request to excuse Alternate Juror R.C. for cause. Forall these reasons, this claim lacks merit. A. Relevant Proceedings Below In his Juror Questionnaire, Alternate Juror R.C. indicated he was a registered nurse who workedat the Kern County Jail (Lerdo Facility),his wife was a certified shorthand reporter, and his brother was a deputy sheriff. (29 CT 8251, 8253.) He also indicated that he was the victim of a car theft in 1988, he knew potential witness Mike Baird, and he may have “3 Appellant fails to mention that Juror R.C. was an alternate juror who wasneversubstituted in for one ofthe 12 sworn jurors, and who did not actually render a verdict in this case. 81 had contact with appellant because he works atthe facility where appellant wasbeing held. (29 CT 8254, 8257, 8268.) During individual questioning bythetrial court, Alternate Juror R.C. confirmed that he workedas a nurse at the Lerdo Facility and he had previously treated Mike Baird who wasan inmateatthat facility and also a potential witness in this case. In responseto the court’s questionof whether this interaction would affect his ability to judge this witness’ testimony, Alternate Juror R.C. responded, “No. Noneatall.” Regarding contact he may have had with appellant, Alternate Juror R.C. thought he previously treated appellant but they did not talk about the case and he did not even know appellant was involved with this case at the time. Healso indicated that the previous day he heard a detentionofficerat the jail mention the jury was being pickedfor the second trial and that appellant was a “scumbag”or “scum.” Heassured the court that this would not affect his ability to be a fair and impartial juror in this case. He also assured the court that his wife beinga certified shorthand reporter andhis brother being a deputy sheriff wouldnotaffect his ability to be a jurorin this case. (22 RT 5024-5028.) Alternate Juror R.C.also stated he would have no problem returning a verdict of not guilty if that is what he believed to be the appropriate verdict, even knowing he would haveto go back to work and face his co-workersat the jail. (22 RT 5033.) Defense counsel challenged Alternate Juror R.C. for cause: The problem is that he works around detention officers all day every day. And by that one comment about Mr. Harris being scum, I cannot help but believe that it would create a hostile work environmentfor him, and he is going to have to come to that realization that if he came back and found Mr. Harris not guilty. And no one wants to workin a hostile work environment. I think he would be tempted to see the evidence more toward a prosecution standpoint to avoid that possibility. And,therefore, I don’t think he can be a fair and impartial juror. I think he maybe a fair and impartial person, but because ofhis 82 situation, I don’t think practically speaking he is going to be able to rendera fair verdict. (22 RT 5053.) Thetrial court denied the challenge: I have to makethis call based upon whathe hastold us. He has told us he can be fair. And I am going to deny the motion. Itis my intention, should he serve on the jury, to order that he is not to attempt to work, let’s say, shifts on the side or somethinglike that during the time that heis in trial here. He will be paid for his time so there is no reason to be concerned about that. But, in any event, the motion is denied. (22 RT 5053.) Ultimately, a jury that did not include Alternate Juror R.C. was sworn to try appellant’s case. Thereafter, alternate jurors were selected. Defense counsel did not exercise a peremptory challenge against Alternate Juror R.C. After both sides passed on peremptory challenges and indicated their acceptance ofthe alternate as seated, the panel of four alternates, which included Alternate Juror R.C., was swom. (26 RT 6007-6009.) Alternate Juror R.C. was never a seated juror during thetrial. B. Appellant Failed to Preserve This Claim To preserve a claim oferror based on the denial of a challenge for cause, appellant must show: (1) he used a peremptory challenge to remove the juror in question; (2) he exhausted his peremptory challenges or can justify failure to do so; and (3) he objected to the jury as finally constituted. (People v. Hinton (2006) 37 Cal.4th 839, 860.) Appellant did not exercise a peremptory challenge against Alternate Juror R.C., nor did he exhaustall of his peremptory challenges as to prospective alternate jurors, and he did 83 not express dissatisfaction with the panel of alternates that were sworn.” (26 RT 6007-6009.) Thus, this claim has been forfeited. C. The Trial Court Properly Declined to Excuse Alternate Juror R.C. for Cause; Any Error was Harmless It is within the broad discretion of the trial court to determine whether a prospective juror will be “unable to faithfully and impartially apply the laws in the case.” Wherea prospective juror gives “conflicting or confusing answers regardinghis or her impartiality or capacity to serve, .. . the trial court must weigh the juror’s responses in deciding whether to removethe juror for cause.” Thetrial court’s determination of the factual question is binding on appeal if supported by substantial evidence. (People v. Moon (2005) 37 Cal.4th 1, 14.) Ifthe prospective juror’s statements are consistent, then the trial court’s ruling will be upheld if supported by substantial evidence. (People v. Schmeck (2005) 37 Cal.4th 240, 262; People v. Horning (2004) 34 Cal.4th 871, 896-897.) Applying the foregoing principles to appellant’s case, the trial court did not abuseits discretion in denying the defense’s for cause challenge | against Alternate Juror R.C. As outlined above, there were no conflicts or inconsistencies in Alternate Juror R.C.’s answers. He consistently indicated that his ability to serve as a fair and impartialjuror in this case would not be affected by outside factors or influences. Respondent submits “ The bulk of appellant’s argument (AOB 197-207) appearsto focus on the validity of the defense’s justification for not using all of their peremptory challenges during selection of the 12 seated jurors. The defense did not state any reasonsfor not using all of their peremptories during the selection of the four alternate jurors. (26 RT 6009.) Considering the challenged juror here was an alternate juror and not one of the 12 seated jurors, respondent submits the defense’s reasons for not using all of their peremptories in the selection of the 12 jurors whoactually tried the case have no bearing on appellant’s claim oferrorhere. 84 the responses he gave during voir dire provided ample evidenceofhis impartiality and capacity to serve. Further, even ifthe trial court erred in refusing to dismiss Alternate Juror R.C. for cause, appellant is not entitled to a reversal of his convictions since he cannot demonstrate he was denied an impartial jury. Where a prospective juror did not even serve on the defendant’s jury, there is no merit to a claim thatthe trial court erred in failing to excuse the juror for cause, since the defendant could not possibly have suffered prejudice as a result of the trial court’s refusal to excuse the juror. (People v. Hinton, supra, 37 Cal.4th at p. 860, fn. 7; see also People v. Hillhouse (2002) 27 Cal.4th 469, 487-488.) Alternate Juror R.C. was never seated as an actual juror duringtrial. Thus, he could not possibly have compromised the impartiality of the jury. In sum, appellant forfeited his claim of error, substantial evidence supportedthe trial court’s denial of the defense’s challenge for cause, and error, if any, was harmless. V. THERE ARE NO PRE-TRIAL ERRORS TO ACCUMULATE Appellant argues that even if no single pre-trial error acted to deprive him ofa fair trial, the manyerrors he has identified, when accumulated, must have done so. (AOB 208-210.) Respondent, however, has shownthat noneofappellant’s contentions have merit. Moreover, appellant has failed to establish prejudice from any ofthe claims he raises. Accordingly, his claim of cumulative error must be rejected. (See People v. Lewis (2001) 25 Cal.4th 610, 635; People v. Staten (2000) 24 Cal.4th 434, 464.) Guilt Phase VI. THE TRIAL COURT DID NOT ABUSEITS DISCRETION IN ADMITTING THE FACTS OF THE TORIGIANI BURGLARY UNDER EVIDENCE CODE SECTION 1101, SUBDIVISION (B) 85 Appellant arguesthe trial court abusedits discretion in allowing the facts of the Torigiani burglary to come in under Evidence Codesection 1101, subdivision (b). (AOB 211-226.) Respondent disagrees. Evidence Code section 1101, subdivision (b) reads as follows: Nothing in this section prohibits the admission of evidencethat a person committed a crime, civil wrong, or other act when relevant to prove somefact (such as motive, opportunity, intent, preparation, plan, knowledge,identity, absence of mistake, or accident, or whether a defendant in a prosecution for an unlawful sexual act did not reasonably and in goodfaith believe that the victim consented) other than his or her disposition to commit such anact. Evidence Codesection 352 reads as follows: The court in its discretion may exclude evidenceifits probative value is substantially outweighed by the probability thatits admission will (a) necessitate undue consumption oftime or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. In general, proof of other crimes maynotbe introducedin a criminal prosecution. However, proofof other crimes, though inadmissible to show a propensity to commit crimes, may be admissible for other purposes where its probative value to establish a fact at issue outweighsits possible prejudicial effect. While such evidence should bereceived with caution, determination of admissibility is left to the sound discretion ofthetrial court. (People v. Gray (2005) 37 Cal.4th 168, 202.) Here, the prosecution movedto havethe facts ofthe Torigiani burglary admitted under Evidence Code section 1101, subdivision (b), to showintent and identity. (18 RT 4222-4237.) In support of his motion,the prosecutorstated the following similarities between the Torigiani burglary and the Manning rape/murder: (1) similar apartments; (2) inhabited by women;(3) located in close proximity to one another; (4) committed within three weeks of one another; (5) within walking distance of appellant’s 86 apartment; (6) committed late in the evening; (7) similar items taken, including a VCR;and(8) the perpetrator armed himself with a weapon from inside the apartment. (18 RT 4226-4228.) Appellant objected to the admission ofthe facts of the Torigiani burglary as irrelevant to prove any fact in issue. (18 RT 4223-4224, 4230-4232.) Thetrial court foundthe facts of the Torigiani burglary, not the convictionitself, to be more probative than prejudicial and relevant to show intent and identity. (18 RT 4237.) Appellant subsequently filed points and authorities and moved to exclude the evidence, arguing insufficient similarity between the two crimes andthe potential prejudice outweighed the probative value. (14 CT 3920-3926; 18 RT 4273-4284.) Thetrial court denied the motion and once again found the evidenceto be admissible to show intent and identity. (14 CT 3919; 18 RT 4282-4285.) The trial court did, however, grant appellant’s request for a limiting instruction. (14 CT 3919; 18 RT 4285.) Prior to deliberations,thetrial court instructed the Jury as follows: Evidencehas been introducedfor the purpose of showingthat the defendant committed a crime other than those for which he is ontrial. This evidence, if believed, may not be considered by you to prove that the defendantis a person of bad characteror that he has a disposition to commit crimes. It may be considered by you only for the limited purposeofdeterminingifit tends to show the existence ofthe intent, which is a necessary element of the crime charged;the identity of the person who committed the crime, if any, of which the defendantis accused. For the limited purpose for which you may consider such evidence, you must weighit in the same manneras you doall other evidencein this case. You are not permitted to consider such evidence for any other purpose. 87 Within the meaning of the preceding instruction that I just read to you, the prosecution has the burden of proving by a preponderance ofthe evidence that the defendant committed a crime other than those for which he isontrial. You must not consider this evidence for any purpose unless you find by a preponderanceofthe evidencethat the defendant committed the other crime. The preponderance of the evidence meansevidencethat has more convincing force than that opposedto it. If the evidenceis so evenly balanced that you are unable to find that the evidence on either side of an issue preponderates, your finding on that issue must be against the party who had the burdenofprovingit. (15 CT 4114-4120; 33 RT 7655-7657.) The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity. For identity to be established, the uncharged misconduct andthe charged offense must share commonfeatures that are sufficiently distinctive so as to support the inferencethat the same person committed both acts. (People v. Ewoldt (1994) 7 Cal.4th 380, 403, citing People v. Miller (1990) 50 Cal.3d 954, 987.) Aspreviously stated, the similarities between this case and the Torigiani burglary were that the apartments were both inhabited by women; they were located within close proximity to one another; they were located within walking distance of appellant’s apartment; the crimes were committed within three weeks of one another; they were committed at night; the perpetrator stole similar items; and the perpetrator armed himself with a weapon from inside the residence. Respondent submitsthetrial court did not abuseits discretion in admitting this evidence because, even though these factors taken individually would not be sufficient to raise the inference that appellant committed both crimes, when combined they are relevant to prove identity through a commonschemeorplan. (People v. 88 Haston (1968) 69 Cal.2d 233, 245-246 [“[T]he inference need not depend upon one or more unique or nearly unique features commonto the charged and unchargedoffenses, for features of substantial but lesser distinctiveness, althoughinsufficientto raise the inferenceif considered separately, mayyield a distinctive combination if considered together.”’].) Furthermore, the crimes weresufficiently similar to prove intent. “The least degree of similarity (between the unchargedact and the charged offense) is required in order to prove intent.” (People v. Ewoldt, supra, 7 Cal.4th at p. 402, citing People v. Robbins (1988) 45 Cal.3d 867, 880.) To be admissible to show intent, “the prior conduct and the charged offense need only besufficiently similar to support the inference that defendant probably harbored the sameintent in each instance.” (People v. Cole (2004) 33 Cal.4th 1158, 1194, quoting People v. Yeoman, supra, 31 Cal.4th at p. 121.) The facts of the Torigiani burglary showed that appellant entered a woman’s apartment, within walking distance ofhis own apartment, at night, armed himself with a weapon from inside the apartment, and stole several items including a VCR. Respondent submits these facts were sufficiently similar to the facts of the charged offense to support an inference that appellant probably had the intent to steal when he entered Alicia’s apartment. Moreover, the admission of this evidence did not contravene the limitations of Evidence Code section 352, becauseits probative value was not substantially outweighedbyits potential prejudicial effect. The probative value of the evidence of the Torigiani burglary wasits tendency to show that appellant was the person who committed the charged offenses and that he entered Alicia’s apartment withthe intentto steal. The probative value of evidence of uncharged misconductis [] affected by the extent to whichits source is independentofthe evidence ofthe charged offense. 89 (People v. Ewoldt, supra, 7 Cal.4th at p. 404.) The source ofthe uncharged misconductin this case was the victim Bree Torigiani, who was not connected to or influenced by the evidence of the charged offenses. This fact bolsters the probative value of the uncharged misconduct. (See ibid.) The fact that appellant was previously convicted of the Torigiani burglary further enhancesthe probative value of this evidence. (/d. at p. 405.) Furthermore, the fact that the testimony describing the Torigiani burglary was no more inflammatory than the testimony describing the charged offenses lessens the potential for prejudice. (Jbid.) All of these factors support the trial court’s finding that the probative value of the prior acts evidence was not substantially outweighed by the potential for prejudice. Even assumingthetrial court erred in admitting evidence ofthe Torigiani burglary for these purposes, any error was harmless becauseitis not reasonably probable that the outcome would have beendifferentif the challenged evidence had been excluded. (People v. Watson, supra, 46 Cal.2d at p. 836; see also People v. Malone (1988) 47 Cal.3d 1, 22 [Watson applies to erroneous admission of other crimes evidence].) First, the prosecutor presented strong evidence of appellant’s guilt in this case, including appellant’s semen being found on the victim (28 RT 6493, 6495- 6499, 6501-6503), appellant’s lack of an alibi for the time of the murder (29 RT 6683-6687, 6689, 6707), appellant’s proximity to the victim’s apartment (29 RT 6662-6663), appellant’s own conflicting statements about having consensual sex with the victim and being at her apartmentthe night of the murder (29 RT 6763-6768, 6790-6795, 6798-6799, 6817-6819), and appellant’s attempts to sell items matching those taken from the victim’s apartment after the murder (30 RT 7000-7001, 7024-7027; 31 RT 7065- 7066). Second, as previously noted, the testimony describing the Torigiani burglary was muchless inflammatory than the testimony describing the charged offenses, which makesit unlikely that the jury would have 90 disregardedthe evidence of the chargedoffenses and convicted appellant based on the evidenceofthe Torigiani burglary or that the jury’s passions were inflamed by the evidence ofthe Torigiani burglary. (See People v. Ewoldt, supra, 7 Cal.4th at p. 405.) Lastly, the trial court instructed the jury that they could not considerthe evidence ofthe uncharged offense to prove that appellant had a bad character or was predisposed to commit crimes. (33 RT 7656.) “Jurors are presumed to understand and follow the court’s instructions.” (People v. Holt, supra, 15 Cal.4th at p. 662.) Any prejudice flowing from thetrial court’s admission of evidenceofthe uncharged offense was dissipated by the court’s limiting instruction. Moreover, the fact that the jury did not convict appellant of the burglary special circumstanceorthe separate burglary charge showstheyactually did follow the court’s instructions. For these reasons, respondent submits that the absence of evidence ofthe Torigiani burglary would not have compelled a different result in this case. VII. THE ROBBERY AND ROBBERY SPECIAL CIRCUMSTANCE VERDICTS ARE SUPPORTED BY SUBSTANTIAL EVIDENCE Appellantclaimsthereis insufficient evidenceto support his robbery conviction and thetrue finding ofthe robbery special circumstance, because the evidence does not support a conclusionthatthe requisite intent was formedprior to the murder. He further contends an omissionin the prosecutor’s closing argumentand instructional error undermined the integrity of the robbery and robbery special circumstance verdicts. (AOB 227-241.) Respondent disagrees. A. Standard of Review To determinesufficiency ofthe evidence, the appellate court must determine whethera rationaltrier of fact could have foundthe defendant guilty beyond a reasonable doubt. (People v. Hodgson (2003) 111 Cal.App.4th 566, 573.) The court reviews the whole recordin the light 91 most favorable to the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 576-577.) Substantial evidenceis that which is reasonable, credible, and of solid value. (/d. at p. 578.) In cases where the People mainly rely on circumstantial evidence, the standardofreview is the same. (People v. Hodgson, supra, \\1 Cal.App.4th at p. 574.) As stated in Hodgson: Althoughit is the duty of the jury to acquit a defendantifit finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. If the circumstances reasonably justify thetrier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding doesnot warranta reversal of the judgment. [Citations.] Circumstantial evidence maybesufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt. — (bid.) B. There Is Sufficient Evidence to Support a Finding That the Intent to Rob Was Formed Before the Murder Section 211 defines robbery as follows: Robbery is the felonious taking of personal property in the possessionof another, from the person or immediate presence, and againsthis will, accomplished by means offorceorfear. A robbery that is committed in an inhabited dwelling house is classified as robbery in the first degree. (§ 212.5, subd. (a).) Section 190.2, subdivision (a)(17)(A)states: (a) The penalty for a defendant whois found guilty of murderin the first degree is death or imprisonmentin the state prison for life without the possibility of parole if one or more ofthe following special circumstances has been found underSection 190.4 to be true: (17) The murder was committed while the defendant was engaged in, or was an accomplicein, the commissionof, 92 attempted commission of, or the immediate flight after comunitting, or attempting to commit, the following felonies: (A) Robbery in violation of Section 211 or 212.5. Forthe jury to have found appellant guilty of robbery, they must have determined that he formedtheintentto steal prior to or during the application of force used to accomplish the taking. (People v. Lewis (2008) 43 Cal.4th 415, 464.) Similarly, the special circumstance of murderduring the commissionofa robbery requires that the murder be committed ‘in order to advance[the] independentfelonious purpose’ of robbery, but the special circumstanceis not established when the felonyis merely incidental to the murder. (People v. Burney (2009) 47 Cal.4th 203, 253, quoting People v. Green (1980) 27 Cal.3d 1, 61.) In finding appellant not guilty of burglary, the jury must have concludedappellant did not enter the apartment with the intent to steal Alicia’s property or to rape her. (§ 459.) Appellant, therefore, must have informedthe intent to steal after entering the apartmentbut prior to or during the murder. Appellant claims there was insufficient evidence upon which the jury could determine whether he formedtheintent to steal prior to the murder, or as an afterthought once Alicia was already dead. (AOB 229.) Respondent submits the jury had sufficient evidence to makethis determination. The evidence showsthat appellant called the apartment three times on the night of the murder, once at 6:15 p.m., again at 9:00 p.m., and the last call was at 9:30 p.m. (27 RT 6204-6205; 6296-6297.) The jury could have reasonably concludedthat these phonecalls were an attempt to contact Bucholz, because appellant told the detectives he called the apartment that night looking for Bucholz (29 RT 6816-6817), and he paged Bucholz around6:15 p.m. askingherif they could meet up later and she told him to page her between 9:00 and 9:30 p.m. (27 RT 6169-6170, 93 6211). It is likely that appellant received the answering machine whenhe madethese calls, because Lanetestified that Alicia said she was purposefully letting the answering machinepick up and then she would write down the messagesandleave them for Bucholz. (30 RT 6934.) Moreover, appellant himself told Detectives Stratton and Hermanthat he left at least one message on the answering machine that evening. (29 RT 6816-6817.) From this, the jury could reasonably concludethat appellant went to the apartment looking for Bucholz because he was unable to contact her and he wanted to meet up with her that night. The not guilty verdicts on the burglary and burglary special circumstance support this conclusion. Whenappellant arrivedat the apartmentitis likely that Alicia, recognizing him as a friend of Bucholz, opened the door, whichis why there were no signs of a forced entry. (28 RT 6348.) Onceinsidethe apartment, appellant looked around and realized Bucholz was not there and Alicia was alone. The jury could have reasonably concludedthatatthis point appellant saw an opportunity to rob Alicia, because she was alone and he would beable to overpower her. The evidence showsthat appellant had been to the apartment manytimespriorto the night of the murder, so he would have already known whatitems wereinside the apartmentthat he could easily take and resell. (27 RT 6155-6156.) Moreover, the short amountoftime that appellant hadto rob, rape, and murderAlicia further supports the jury’s finding that the intent to steal was formedpriorto the murder. The evidence showsthat appellant hit Alicia over the head with three different glass objects (27 RT 6323-6324, 6327), he stabbed her over 50 times with two different knives (28 RT 6518-6522), which meant he likely made twodifferent trips to the kitchen, and he cleaned up afterward (27 RT 6290). It is not reasonable to think that the decision to steal Alicia’s property was merely an afterthought, because there just would not have 94 been enoughtime for appellant to comeup with a planto steal these items and figure out how he would get them backto his apartmentafter he had raped and murderedAlicia. Particularly because he would have been more focusedon cleaning up and getting out of the apartment before Bucholz returned. Respondent submits the jury’s conclusion that appellant formed the intent to steal after entering the apartment oncehe saw that Alicia was alone wasreasonable and supported bysufficient evidence. Evenif this Court finds there wasinsufficient evidence to support the robbery-murderspecial circumstance, the death judgment neednot be reversed. The United States Supreme Court has upheld a death penalty judgmentdespite invalidation of one of several aggravating circumstances (Zant v. Stephens (1983) 462 U.S. 862, 881), and this Court is in accord (see e.g., People v. Silva (1988) 45 Cal.3d 604, 632-636 [affirming despite the jury’s considerationof invalid special circumstance findings]). Moreover,section 190.2, subdivision (a) only requires one ofthe enumerated special circumstances to be foundtrue to qualify a defendant for the death penalty. As there was morethan sufficient evidence (Argument VIII, infra) to support the rape-murderspecial circumstance, appellant’s judgmentof death should beaffirmed. C. The Prosecutor Did Not Misstate the Law on Intent As It Related to the Robbery Special Circumstance Appellant contends the prosecutorfailed to adequately explain the intent requirementasit related to the robbery special circumstancein his closing argument, and that amounted to a misstatementofthelaw. (AOB 231-233.) This argumentfails for several reasons. First, appellant did not objectat trial to the prosecutor’s closing argumentasit related to the explanationofthe intent required forthe robbery special circumstance. (33 RT 7474.) Accordingly, appellant 95 forfeited any claim of misconduct based on this argument. (People v. Williams (1997)16 Cal.4th 153, 254.) Second, the prosecutor did not misstate the law. The specific portion of the prosecutor’s argument that appellant contends is erroneousreads as follows: The only way you would reach the lesser offense of petty theft is if you found that Miss Manning’s property wastaken, butit wasn’t taken by meansofforce or fear. In that case, the offense would be petty theft. Obviously, however, the taking of her items here was - accomplished by the stabbing and bludgeoningofher which led to her death, and that is robbery. It is not petty theft. (33 RT 7474.) This portion of the prosecutor’s argument does not even relate to the intent required for the robbery special circumstance. The prosecutor was merely explaining the difference between robbery andpetty theft. This explanation is consistent with the Penal Code and CALJIC definitions of those crimes. (See §§ 211, 487; CALJIC Nos. 9.40, 14.02.) Lastly, the prosecutor’s closing argument is not evidence andthe jury was so instructed. (CALJIC No. 1.02; 15 CT 4088-4089.) The jury is presumedto have followed this instruction. (People v. Avila (2009) 46 Cal.4th 680, 719.) Therefore, contrary to appellant’s claim (AOB 233), the statements made bythe prosecutor did notlure the jury into an erroneous finding of the robbery special circumstance. D. The Special Circumstance Instruction Was Not Erroneous and the Trial Court Had No Sua Sponte Duty to Instruct On Whenthe Intent to Rob Was Formed Appellant claimsthetrial court erroneously instructedthe jury with CALJIC No. 8.81.17 by connecting paragraphs one and two with “or” instead of “and.” Hefurtherclaimsthetrial court erredin failing to sua sponte give additional instruction on whentheintent to rob was formed, 96 and both ofthese errors were prejudicial. (AOB 233-238.) Respondent disagrees. Thetrial court orally instructed the jury with CALJIC 8.81.17 as follows: To find that the special circumstancereferred to in these instructions as murder in the commission ofrape, sodomy, robbery or burglary is true, it must be proved: One,that the murder was committed while the defendant was engagedin the commission or attempted commission ofa rape, sodomy, robbery and/or burglary; and two, that the murder was committed in order to carry out or advance the commission of the crime of rape, sodomy, robberyor burglary,or to facilitate the escape therefrom,or to avoid detection. In other words, the special circumstancesreferred to in these instructionsare not establishedif the rape, sodomy, robbery or burglary was merely incidental to the commission of the murder. (33 RT 7672-7673; emphasis added.) Appellant acknowledges that the oral instruction wascorrect as given, but claims the written instruction was erroneous becauseit connected the twofindings the jury needed to make with “or” instead of “and.” (AOB 233-235.) This Court has foundthat the use of the disjunctive “or” between the elements of CALJIC No. 8.81.17 is error. (People v. Friend (2009) 47 Cal.4th 1, 79.) That, however, is not what happenedhere. The written instruction provided to the Jury in this case, as modified by the court, omitted any connector between the two elements: To find that the special circumstance, referredto in these instructions as murderin the commission of rape, sodomy, robbery, or burglary,is true, it must be proved: la. The murder was committed while the defendant was engagedin the commission or attempted commissionofa rape, sodomy,robbery, and/or burglary. 2. The murder was committed in orderto carry out or advance the commissionof the crime of rape, sodomy,robbery, or burglary or to facilitate the escape therefrom or to avoid 97 detection. In other words, the special circumstancereferred to in these instructionsis not established if the rape, sodomy, robbery, or burglary was merely incidental to the commission of the murder. (15 CT 4171-4172.) In People v. Friend, supra, this Court foundthat the giving of CALJIC 8.81.17 without any grammatical connectors between the elements did not make the instruction so ambiguousas to makeit reasonably likely that the jury would have “construed them in a mannerthat violate[d] the defendant’s rights.” (/d. at p. 79.) This Court further held that it was not “reasonably likely the jury understood the elements to be in the disjunctive” and [a]bsent the insertion of express disjunctives, the listing of three separate elements that must be provedclearly implied that proof of each was independently necessary. (/bid.; emphasis in original.) As such, this Court rejected appellant’s claim that the instruction permitted the jury to find the special circumstancetrue based on only one element. (Jbid.) Applying this Court’s analysis in People v. Friend, supra, to appellant’s case leads to the same conclusion, namely,that the lack of a grammatical connector between the two elements of CALJIC 8.81.17 did not makeit reasonably likely that the jury thought they were permitted to find the robbery special circumstance true based on only one element. The trial court’s oral instruction which included the conjunctive “and” between the two elements further supports the conclusionthat the jury understood that each element had to be proven in orderto find the robbery special circumstance true. Therefore, appellant’s claim shouldbe rejected. Evenifthis Court agrees with appellant’s reading of the written instruction as including the disjunctive “or,” reversal of the robbery special circumstance finding is not warranted because anyerror was harmless. The 98 error appellant complains ofis reviewed under the Chapmanstandard of harmless error review. (People v. Prieto (2003) 30 Cal.4th 226, 256; see Chapmanv. California, supra, 386 U.S.at p. 24 [error mustbe found harmless beyond a reasonable doubt].) Here, the trial court instructed the jury with CALJIC Nos. 9.40* (robbery defined) and 8.21% (felony * Thetrial court instructed the jury with CALJIC No.9.40 as follows: Defendantis accused in Count 2 of having committed the - crime of robbery,a violation of section 211 of the Penal Code. Every person whotakes personalproperty in the possession of another, against the will and from the person or immediate presence ofthat person, accomplished by meansofforce orfear and with the specific intent permanently to deprive that person of the property, is guilty of the crime of robbery in violation of Penal Codesection 211. “Immediate presence” meansan area within the alleged victim’s reach, observation or control, so that he or she could,if not overcome byviolenceor prevented by fear, retain possession of the subject property. “Against the will” means without consent. In order to prove this crime, each of the following must be proved: 1. A person hadpossession of property of some value, however,slight; 2. The property was taken from that person or from her immediate presence; 3. The property was taken against the will of that person; 4. The taking was accomplishedeitherby force or fear; and 5. The property was taken with the specific intent to permanently deprive that person ofthe property. (continued...) 99 murder). (15 CT 4151, 4179-4181; 33 RT 7665-7666, 7675-7676.) This Court has previously foundthat ““CALJIC Nos. 9.40 and 8.21 together adequately cover the issue of the time of the formationofthe intent to steal.’” (People v. Friend, supra, 47 Cal.4th at p. 50 [internal quotations omitted], citing People v. Valdez (2004) 32 Cal.4th 73, 112 and People v. Hughes (2002) 27 Cal.4th 287, 359.) Therefore, the jury in this case was adequately instructed on whenthe intent to steal needed to be formed, and any error in the use of the disjunctive “or” was harmless beyond a reasonable doubt. Appellant makes an additional claim ofinstructionalerror in that the trial court failed to sua sponte instruct on whentheintentto steal arose. (AOB 235-237.) Contrary to appellant’s claim, the trial court did not have a sua sponte duty to instruct on whenthe intent to steal was formed. (People v. Webster (1991) 54 Cal.3d 411, 443-444 [no sua sponte duty to instruct that if defendant formed intent to steal only after killing he was only guilty of theft]; People v. Carter (1957) 48 Cal.2d 737, 758 [no error in failing to instruct that homicide wasnotin perpetration of robbery if intent to steal arose after attack on deceased, where defendant never (...continued) . (15 CT 4179-4181.) “© Thetrial court instructed the jury with CALJIC No.8.21 as follows: The unlawful killing of a human being, whetherintentional, unintentional or accidental, which occurs during the commission or attempted commissionofthe crime of rape, sodomy, robbery, or burglary is murderin the first degree when the perpetrator had the specific intent to commit that crime. The specific intent to commit rape, sodomy, robbery,or burglary and the commission or attempted commission of such crime must be proved beyond a reasonable doubt. (15 CT 4151.) 100 contended he formedintent only after attacking the victim, and denied the attack altogether].) Moreover, appellant never requested a special instruction on after-acquired intent, nor did he claim that he formed the intent to steal only after he attacked and killed Alicia. On the contrary, appellant claimed hedid not kill Alicia or steal her property. As the court was underno duty to give such an instruction, its failure to do so could not have beenerror. E. Appellant Was Properly Convicted of Robbery Appellant claims there wasalso insufficient evidence to support the robbery conviction, the prosecutor committed errorin closing argument, and the trial court erred whenit failed to instruct sua sponte on when the intent to steal was formed. (AOB 238-241.) For the same reasons as argued above in relation to the robbery special circumstance, respondent submits there was sufficient evidence to support the robbery conviction, the prosecutor did not misstate the law, and there wasnoinstructionalerror. In sum, there wassufficient evidence to support both thetrue finding on the robbery special circumstanceand the robbery conviction. Moreover, the prosecutor did not misstate the law regarding the formation of intent and the trial court did not commit instructional error. For these reasons, appellant’s claims should berejected. VIII. APPELLANT’S RAPE CONVICTION WAS SUPPORTED BY SUBSTANTIAL EVIDENCE Appellant claims there was insufficient evidence to support a finding of lack of consent necessary for rape. He further claimsthetrial court abusedits discretion by admitting twoletters written by Alicia the week prior to her murder, anderred in sustaining relevance objections to evidence showing problemsin Alicia and Charles’ relationship. (AOB 242-260.) Respondent disagrees. 101 A. Standard of Review To determine sufficiency of the evidence, the appellate court must determine whethera rationaltrier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Hodgson, supra, 111 Cal.App.4th at p. 573.) The court reviews the wholerecordin thelight most favorable to the judgment. (People v. Johnson, supra, 26 Cal.3d at pp. 576-577.) Substantial evidence is that which is reasonable, credible, and ofsolid value. (/d. at p. 578.) In cases where the People mainly rely on circumstantial evidence, the standard of review is the same. (People v. Hodgson, supra, 111 Cal.App.4th at p. 574.) As stated in Hodgson: Althoughit is the duty of the jury to acquit a defendantifit finds that circumstantial evidence is susceptible of twointerpretations, one of which suggests guilt and the other innocence[citations], it is the jury, not the 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 mightalso reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.] Circumstantial evidence maybe sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt. (Ibid.) B. ThereIs Sufficient Evidence to Support a Finding of Lack of Consent Section 261, subdivision (a)(2) defines rapeas: (a) Rapeis an act of sexual intercourse accomplished with a person not the spouseofthe perpetrator, under any of the following circumstances: (2) Whereit is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person of another. 102 “Against a person’s will”is defined as being without the person’s consent. (CALJIC No. 10.00.) The prosecution must provea lack of consent beyond a reasonable doubt. (People v. Key (1984) 153 Cal.App.3d 888, 895.) Appellant claims the only pieces of evidencethat supported the rape conviction were the fact that Alicia was murderedandthat she had a boyfriend. (AOB 245-246.) Appellant paints a less than complete picture of the evidence supporting the rape conviction, which was more than sufficient to find a lack of consent. Onthe other hand, the only evidence supporting a finding of consensual sex was appellant’s own self-serving statement that he and Alicia had consensual sex on the night she was murdered. Considering the number of conflicting statements appellant made regarding what, if any, sexual contact he had with Alicia, it is likely that the jury completely disregarded this statementas untrustworthy. The evidence supporting lack of consent, however, was substantial. First, the evidence showed that appellant and Alicia had a less than amicable relationship, which would support a finding of lack of consent. Alicia wasirritated by appellant’s constant phonecalls to the apartment because they were disrupting her studying. She wassoirritated that she confronted Bucholz aboutthe calls and asked hertotell appellantto stop calling the apartment. Even after Bucholz told appellant to page her instead of calling the apartment hecontinuedto call the apartment. (27 RT 6157- 6160, 6204-6205, 6296-6297) Alicia also told Lane that appellant called so frequently she had purposefully stopped answering the phone. (30 RT 6934.) Moreover, appellant’s girlfriend had called the apartment looking for Bucholz andshethreatenedAlicia, promptingherto call the police. (27 RT 6163; 29 RT 6621.) Alicia was so upset by this that she confronted appellant and Bucholz aboutthe threats the day before her murder, and she told him to tell his girlfriend not to call the apartment again. (27 RT 6161- 103 6165.) From this evidence, the jury could have reasonably concludedthat Alicia would not have had a consensual sexualrelationship with appellant. Second, Alicia and Charles were in a serious and committed relationship that wascertainly not as rocky as the defense wantedthe jury to believe. The evidence showedthat Alicia and Charles planned to move to the east coast together after Alicia graduated. (30 RT 6950.) Charles admitted that he and Alicia contemplated breaking up, but decidedto stay together and continue with their future plans. (30 RT 6959, 6967-6968, 6983-6984.) The fact that Alicia and Charles had dinner and spentthe evening together the night before Alicia’s murder (27 RT 6165; 30 RT 6935, 6953-6954) further showsthat they werestill committed to their relationship. Moreover, the “Charles sweetheart”letter that was written by Alicia sometime in the week leading up to her murder indicates Alicia was still deeply in love with Charles, and does not show anysigns of an imminent break-up. The evidence of Alicia and Charles’ relationship further supports the jury’s finding of lack of consent. Third, the physical injuries to Alicia’s body support a finding of lack of consent. Appellant claims that the lack of vaginal trauma supports his claim of consensual sex (AOB 243-244), butthe totality of the evidence supports a different conclusion. A piece of glass was found underneath the plaid shorts that were lying on the floor close to Alicia’s feet (27 RT 6299- 6306; 28 RT 6396; 29 RT 6676), indicating she was hit with at least one glass object before her shorts were removed. Dr. Browntestified thatit waslikely that Alicia was rendered unconscious by the blunt force trauma to her head. (28 RT 6518.) From this, the jury could have reasonably concluded that Alicia was unconscious during the sexual assault, which would explain the lack of vaginal trauma during nonconsensualsexual intercourse. Further, Dr. Browntestified that a lack of vaginal traumais not uncommonin cases of rape. (28 RT 6526, 6534.) Even the defense’s 104 own expert, Dr. Stanley, testified that in some cases of rape there is no vaginal injury, and the mostscientifically valid, large scale studies show that only 20 to 40 percent of cases of sexual assault involve vaginalinjury. (31 RT 7142.) Hefurthertestified that external injuries to the body, including bruising, scratches, scrapes, cuts, stab wounds, and blunt force trauma, occur in 80 percent of sexual assault cases. (31 RT 7145-7148.) It is not just the simple fact that Alicia was murdered,as appellant claims (AOB 245), that supports a finding of non-consent, butit is that fact combined with the physical injuries and the testimonyof the experts which support a finding ofrape. Finally, Alicia’s behavior upon findingoutthat she might have an STD showsshe wasnot having a sexual relationship with anyone except her boyfriend. On May15, Alicia wentto the health center to get a birth controlrefill and to get checked for a possible urinary tract infection. The hurse practitioner performed a full examination andtested Alicia for STDs. — (30 RT 6987-6988.) On the weekend of May17, Alicia visited Charlesat his parents’ house in Tulare andshe told him she might have an STD and he must have givenit to her. (30 RT 6925, 6951-6952, 6959.) Alicia did not find out that all of the tests came back negative until May 19. (30 RT 6987-6988.) If Alicia was having a sexual relationship with appellant,it would makenosensefor Alicia to tell Charles she thought he gave her an STD. Particularly if you believe appellant’s story that they just started having sex about a month prior, because it would make more sense in that situation for appellant to be the one who gave her the STD. Had Alicia been having sex with someone other than Charles, it would have been more reasonable for her to remainsilent until she gotthetest results, becauseif they were negative Charles would never have to know about her affair. The fact that she not only told Charles before getting the results, but also told him she thoughthe had given her the STD showsthat she wasnot having 105 sex with anyone else. Respondent submits all of this evidence taken together is more than sufficient to support the jury’s finding of lack of consent necessaryfor rape. C. The Trial Court Properly Admitted Two Letters Written By Alicia Within a Week of Her Murderto Show HerState of Mind Appellant claimsthe trial court erred in admitting twoletters written by Alicia during the weekprior to her murder. (AOB 248-254.) He makes twospecific claimsoferrorrelating to the admission oftheseletters. First, the trial court erroneously found that the defense put Alicia and Charles’ relationship in issue, and, second, the letters were irrelevant and unreliable. (AOB 250-251.) Respondent submits the letters were authenticated, relevant to prove a fact in issue, and reliable to show Alicia’s state of mind. The prosecution sought to admit two letters purported to have been written by Alicia within the last week of herlife, to show her state of mind regarding her relationship with Charles. In thefirst letter, referred to as the “Charles sweetheart”letter, Alicia professed her love for Charles and said she wishedshe did not have to work on her paper so she could spend more time with him. In the secondletter, referred to as the “Dear Dave” letter, Alicia wroteto her best friend from homeabouther plans to move back to the east coast with Charles after graduation. The defense objected to the introductionof these letters as late discovery (30 RT 6892-6893) and irrelevant (30 RT 6898-6900). Thetrial court foundthat the defense had equalaccessto theletters, the defense put Alicia and Charles’ relationship at issue, the letters were relevant to that issue, and the prosecution could recall Bucholz to authenticate the letters. (30 RT 6900-6904.) Bucholztestified that Alicia had a habit of writing letters to people and Charles wasa frequentrecipientofherletters. (30 RT 6906.) Bucholz identified the handwriting in both ofthe letters as Alicia’s handwriting. (30 106 RT 6911, 6913.) The “Charles sweetheart”letter referenced Alicia’s work on a paper, which Bucholztestified washervoting paperthat Alicia had started working on the week before her murder. (30 RT 691 1-6912.) The court found that the “Dear Dave”letter was self-authenticating as to the date it was written becausethe body ofthe letter indicated there were only 31 days until graduation. (30 RT 6900-6901.) Bucholztestified that their graduation was scheduledfor June 14 (30 RT 6913), which indicated the letter was written the week prior to Alicia’s murder. Both letters were ultimately admitted into evidence. (30 RT 692 1-6922.) Evidence Code section 351 states that all relevant evidenceis admissible. Relevant evidenceis: evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendencyin reason to prove or disprove any disputed fact that is of consequenceto the determinationofthe action. (Evid. Code, § 210.) Hearsay evidence, however, is inadmissible unlessit falls under one ofthe legally recognized exceptions. (Evid. Code, § 1200.) Evidence Codesection 1250 provides: (a) Subject to Section 1252, evidence ofa statement ofthe declarant’s then existing state of mind, emotion,or physical sensation (including a statementofintent, plan, motive, design, mentalfeeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: (1) The evidenceis offered to prove the declarant’s state of mind, emotion, or physical sensation at that time orat any other time whenitis itself an issue in the action;or (2)The evidenceis offered to prove or explain acts of conduct of the declarant. (b) This section does not make admissible evidence of a statement of memory orbelief to prove the fact remembered or believed. 107 Evidence Code section 1252 precludes the admissionofstatements offered under Evidence Codesection 1250,if those statements were made “under circumstances such asto indicate [their] lack of trustworthiness.” (Evid. Code, § 1252.) Appellantclaimsthe trial court madetwocrucial errors. First, the trial court erred in finding that Alicia and Charles’ relationship was put in issue by the defense. Second,thetrial court erred in admitting the two letters into evidence becausethey were irrelevant, unreliable hearsay declarations. (AOB 250-254.) Both of these claims lack merit. First, whether the defenseput the relationship in issue or not, evidence showingthe status of Alicia and Charles’ relationship was relevant. Evidence showing problemsin their relationship would have a tendency to support appellant’s claim of consensual sex, because it would be more likely for Alicia to cheat on Charles with appellant if she and Charles were having problemsin their relationship. On the other hand, evidence showing a loving, committed relationship would have a tendency to support the prosecution’s theory that appellant raped and murdered Alicia, becauseit wouldbeless likely for Alicia to cheat on Charles with appellant if she and Charles were not having problemsin their relationship. Whether it was consensual sex versus rape wasa disputed fact of consequenceto this case and the status of Alicia and Charles’ relationship had a tendencyto prove or disprove that fact, makingit relevant evidence. (See Evid. Code, § 210.) Therefore, respondent submits thetrial court’s finding that the defense put the relationship in issue had no bearing on the ultimate admissibility of the letters. Second, appellant’s claims of relevancyandreliability also lack merit. Thetrial court had wide discretion in determining relevance andits ruling should not be overturned absent an abuseofdiscretion. (People v. Valencia (2008) 43 Cal.4th 268, 286.) As stated above, relevant evidence means 108 evidence “having any tendencyin reason to prove ordisprove any disputed fact that is of consequenceto the determination ofthe action.” (Evid. Code, § 210.) Moreover, [e]videnceis relevant not only when it tends to prove or disprove the precise fact in issue but when it tends to establish a fact from which the existence or nonexistence ofthe factin issue can be directly inferred. (People v. Warner (1969) 270 Cal.App.2d 900, 908.) Appellant claims the letters were not relevant to show Alicia’s state of mind regardingher relationship with Charles because they were written the week before her murder, and the only relevanttime period is the day of her murder. (AOB 250-252.) Respondent submits, however, that appellant’s interpretation of the relevant time period is too narrow. While respondent agrees that the relevant question is whether Alicia consented to having sex with appellant on the night of her murder, respondent also submits that Alicia’s feelings for Charles and whattheir future plans were a weekprior to her murder would still be relevant to show howshefelt about Charles and whattheir future plans were the day of her murder. Asalready stated above, evidence showingthe status of Alicia and Charles’ relationship was relevant to the issue of whether the sex was consensual or not. While the probative value of the letters may have been higher had they been written on the day ofthe murder, respondent submits the fact they were written a week before the murder does not diminish their probative value to such an extent that they would be considered completely irrelevant. As such, the trial court was well within its discretion to allow their admission. Appellant further claimsthat the letters were unreliable as an exception to the hearsay rule, because they were written a week before Alicia’s murder and they had never been sent to their intendedrecipients. (AOB 252-253.) Hearsay statements sought to be admitted under Evidence Codesection 1250 are subjectto the restrictions of Evidence Code section 109 1252, which looks to the circumstances under which the statements were made to determinetheir trustworthiness. (Evid. Code, §§ 1250, 1252.) There is no indication from the record that Alicia wrote these letters under circumstances that would indicate their lack of trustworthiness. Appellant’s two complaints, that the letters were written a week before her murder and were neversent to their intended recipients, are not circumstances under which the letters were written and, as such, have no bearing on their trustworthinessas it is determined under Evidence Codesection 1252. Theyare simply facts that appellant was free to argueto the jury as having a tendency to reduce the probative value of the evidence. For these reasons, appellant’s claim that the court abusedits discretion in admitting theletters should be rejected. D. The Trial Court Did Not Erroneously Exclude Evidence of Alicia and Charles’ Relationship Appellant claimsthetrial court erroneously sustained relevance objections to testimony offered by the defense during thefirst trial to show problemsin Alicia and Charles’ relationship. (AOB 254-259.) Respondent submits whatever evidentiary rulings the trial court made duringthefirst trial are irrelevant to the appeal that is before this court. Appellant does not claim that these same evidentiary rulings were also madein the second trial. In fact, the defense did elicit testimony from Bucholz and Charles during the secondtrial that showed problemsin Alicia and Charles’ relationship. On cross examination, Bucholztestified that on the night before her murder Alicia told Bucholz that she was not sure if Charles was ready to moveacross the country andstart a new job orifhe wasreally the right guy for her. (27 RT 6229-6230.) Furthermore, on cross examination, Charles testified that he and Alicia had discussed the possibility of breaking up the Friday before her murder, because she felt he was spending too muchtime with his friends. (30 RT 6967-6968.) Respondent is not sure 110 whyappellant is making arguments regarding evidentiary rulingsthat occurred duringthefirsttrial, but, as they are irrelevantto the case before this Court, they should be rejected. EK. The Trial Court Did Not Commit Prejudicial Error Appellant, without citation to authority (see Cal. Rules of Court, rule 8.204(a)(1)(B)), contendsthetrial court’s admission of the twoletters and its exclusion of defense evidence to rebut the prosecution’s claim of lack of consent wasprejudicial. (AOB 260.) As the admission ofthe twoletters wasnot an abuse of discretion (see Arg. VIII.C., supra) andthetrial court did not make evidentiary rulings excluding evidence proffered bythe defenseon the issue of consent in the secondtrial (see Arg. VIILD., supra), respondent submits appellant suffered no harm. IX. THE TRIAL COURT’S EVIDENTIARY RULINGS WERE NOT ERRONEOUS OR PREJUDICIAL Appellantclaimsthe trial court made numerousevidentiary rulings that were erroneous and, while some ofthem maynot have been prejudicial on their own, taken together they were prejudicial. (AOB 261-282.) Respondentdisagrees. A. The Trial Court Properly Determined That the Prosecution Could Present Evidence of Blood Found on Appellant’s Shoe If Appellant Presented Evidenceof the Lack of Blood on his Shirt Priorto the first trial, the defense made an oral motion in limine to exclude evidence of the blood found on appellant’s shoe. They arguedthis evidence wasnot relevant and was potentially prejudicial because the sample was too smallto definitively say the blood belongedto the victim. The prosecutor indicated he did not intend to introduce that evidenceat that point in time, but if he shouldfeel that it was relevant at somelater point he would alert the court and counsel priorto introducing it. In light ofthis, the 111 trial court simply found that the prosecutor would have to make a further showingprior to introducing this evidence. (5 CT 1115; 2 RT 607-608.) Duringthefirst trial, defense counsel attempted to question Findley about a black Budweiser shirt that she claimed appellant was wearing the night of the murder. (11 RT 2719-2720.) The prosecutor objectedto this line of questioning as irrelevant and beingin violation of anin limine ruling. (11 RT 2720.) Thetrial court overruled the objection on relevance but sustained the objection as to the violation of the in limineruling. (11 RT 2720.) Defense counsel requested a sidebar andthe parties discussed the issue with the court in chambers, (11 RT 2721-2726.) The prosecutor argued that if defense counsel introduced evidence of the black Budweisershirt to show that appellant did not have blood on the clothes he purportedly wore the night of the murder, then he should be able to introduce evidence of the blood that was found on appellant’s shoes. (11 RT 2721-2722.) Defense counsel argued evidence of the blood on appellant’s shoes should be excluded becausethe test results were inconclusive, but the lack of blood on his shirt tended to showthat he did not murder Alicia. (11 RT 2722-2723.) In response, the prosecutor argued it would be deceptive to allow testimony regarding the lack of blood on appellant’s shirt and not allow testimony regarding the blood found onhis shoe that could have belongedto the victim. (11 RT 2723-2724.) Thetrial court ruled that the evidence of the blood on appellant’s shoe would be admissible if the defense introduced evidence about the lack of blood on his shirt. (11 RT 2725.) Defense counsel ultimately decided to introduce evidence ofthe lack of blood on appellant’s shirt, even though the prosecutor would be allowed to introduce evidenceof the blood found on appellant’s shoe. (12 RT 2769-2770.) In line with the trial court’s ruling, Detective Hermantestified that during the execution of a search warrantat appellant’s apartment, on June 112 11, he seized four pairs of shoes that Findley told him belongedto appellant. Detective Hermanstated that he saw what appearedto be blood on one or moreofthe individual shoes. (12 RT 2783-2784, 2794.) Word subsequently testified that her lab tested six stains on a pair of shoes andall six areas contained human DNA. (12 RT 2853.) Wordtestified that testing on one of the stains revealed DNA from morethan one donor, and Alicia was excluded as the primary source but she could not be definitively included or excluded as the secondary source becausethe results were too faint. (12 RT 2854-2856.) Prior to the secondtrial, the defense filed a motion in limine to exclude the shoe-blood evidenceas irrelevant, prejudicial, and potentially misleading. (14 CT 3856-3864.) At the hearing on the motion, defense counsel again argued that the shoe-blood evidence waspotentially misleading, irrelevant, and more prejudicial than probative under Evidence Code section 352. (18 RT 4209-4210.) The prosecutor conceded the motion, stating there was a foundational problem because the sample was below the level required for conclusive analysis. (18 RT 4210-4212.) The trial court found that the expert would berestricted to testifying that the sample came from two sources, only one of which wasata level susceptible of testing by her lab, and testing on that source ruled outall five people tested. (18 RT 4212.) On cross examination of Criminalist Spencer during the secondtrial, defense counsel requested a sidebar to discuss questioning Spencer about the lack of blood on appellant’s black Budweiser shirt. (29 RT 6641-6642.) The prosecutor claimed the introduction of evidence to show the lack of blood on appellant’s clothing would open the doorto testimony regarding the blood found on his shoes. (29 RT 6443.) Thetrial court agreed with the prosecutor and ruled that if the defense presented evidence about the lack of blood on appellant’s shirt, the prosecution could introduce evidence 113 that blood was found on appellant’s shoe but the sample wasnot strong enoughto determine the source. (29 RT 6443.) In light of this ruling, the defense decided not to question Spencer about the lack of blood on appellant’s shirt in order to prevent the shoe-blood evidence from being presented to the jury. (29 RT 6443.) On appeal, appellant claimsthe trial court’s ruling was error because the shoe-blood evidence wasirrelevant and more prejudicial than probative. (AOB 261-269.) More specifically, appellant claimsthe trial court failed to make an explicit determination that the probative value of the evidence outweighedits prejudicial effect, which, standing alone, constituteserror, and hadit made such a determination it would have been an abuse of discretion. (AOB 266-268.) These claims lack merit. Thetrial court’s failure to explicitly state that it found the shoe-blood evidence moreprobative than prejudicial was noterror. Although the record must“affirmatively show that the trial court weighed prejudice against probative value” [Citation], the necessary showing can beinferred from the record despite the absence of an express statement by the trial court. [Citation]. (People v. Prince, supra, 40 Cal.4th at p. 1237.) Here, one of the defense’s main arguments, starting in thefirst trial and continuing in the second, was that this evidence was moreprejudicial than probative. During the sidebar in the secondtrial, defense counsel explicitly stated his belief that this evidence wasprejudicial under Evidence Codesection 352. (29 RT 6442.) From this, it can be inferred that the trial court was awareof its duty to make a prejudice determination under Evidence Code section 352. (See People v. Crittenden (1994) 9 Cal.4th 83, 135.) Moreover,the trial court limited the evidence that the prosecutor could presentto the fact that blood was found on appellant’s shoe and the source could not be determined. This ruling further supports the inference that the trial court was aware of the requirements of Evidence Code section 352 because the court was only 114 willing to allow introduction of the most relevant and probative aspect of the shoe-blood evidence while excluding other testimony that may have confusedor prejudiced the jury. The threshold question of admissibility is whether the evidenceis relevant. (See Evid. Code, § 350.) In People v. Burgener (1986) 41 Cal.3d 505, the defendant argued that evidence of blood on his shoe wasirrelevant and thus inadmissible, becausethe test results could not definitively determine whether it was human bloodor bloodatall. (Ud. at p. 526, overruled on other grounds by People v. Reyes (1998) 19 Cal.4th 743, 753.) This Court held the shoe-blood evidence was relevant, because the presence of a substance which might be blood on the defendant’s shoes certainly has some tendency in reason to prove that he might have been presentat the scene of a bloody shooting the night before his arrest. (Id. at p. 527.) Similarly, here, the shoe-blood evidence did have at least sometendencyin reason to prove that appellant might have been presentat the scene of a violent and bloody murder. Appellant claims Burgeneris distinguishable from his case, because he and Alicia were both ruled out as primary sourcesof the blood stain on his shoe. (AOB 267.) Appellant’s logic fails because the question of relevance in this case turns on the secondary source not the primary source, and neither he nor Alicia could be included or excluded as the secondary source. The lack of direct evidence that appellant was wearing these particular shoes the night of the murder does not change the outcome. In Burgener, blood was found on shoes appellant was wearing the dayofhis arrest, which wasthe dayafter the shooting and not at the exact time of the shooting. Here, there was evidence that the blood-stained shoes belongedto appellant andthe fact that he owned shoes that contained blood that may or may not have belonged to the victim was relevant. 115 Thetrial court’s determination that the probative value of the shoe- blood evidence outweighed the potential for prejudice was not an abuse of discretion. | Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value ofparticular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. Where, as here, a discretionary poweris statutorily vested in the trial court, its exercise ofthat discretion “must not be disturbed on appeal except on a showingthat the court exercised its discretion in an arbitrary, capricious or patently absurd mannerthat resulted in a manifest miscarriage ofjustice.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; internal citations omitted.) Appellant claims the shoe-blood evidence was more prejudicial than probative, especially becauseit resulted in the exclusion of relevant and highly probative evidence of the lack of blood on appellant’s shirt. (AOB 268.) Appellant wants to admit the evidence that tends to show his innocence while preventing the prosecution from presenting related evidence that tends to show his guilt. Respondent submits admission of the shirt without admission of the shoes would have misled the jury into thinking there was absolutely no blood on appellant’s clothes. The evidence barred by Evidence Codesection 352 is evidence that uniquely causes the jury to form an emotion-basedbias against a party and that has very little bearing on the issues of the case. (People v. Thornton (2007) 41 Cal.4th 391, 427.) Respondent submits the shoe-blood evidence did not have a tendency to evoke emotionalbias against appellant and it did have substantial probative value. Moreover, even assumingerror, reversal is not required because any error was harmless. The erroneous admission of evidence requires reversal only when “the admitted evidence should have been excluded on the groundstated . . . and the errors complained of resulted in a miscarriage of 116 justice.” (Evid. Code, § 353, subd. (b); see also People v. Earp (1999) 20 Cal.4th 826, 878; People v. Watson, supra, 46 Cal.2d at p. 836 [erroris harmless understate constitutional standards unlessit is “reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error’].) Appellant claims the federal constitutional standard of prejudice should be used becausethe court’s tuling implicated his Sixth Amendmentright to present a defense. (AOB 269.) Respondent submits any error was harmless under either standard. The only evidence that appellant was wearing that shirt the night of the murder came from the testimonyofhis girlfriend, and her testimonyalso provided the only evidencethat the shirt had not been washedsincethat night. It is likely that the jury would have given this evidencevery little weight because its probative value dependedonthe testimony of a witness whowasbiased in favor of appellant. Weighed against the evidence of appellant’s guilt, respondent submits any error in not admitting the shirt was harmless beyond a reasonable doubt. B. The Trial Court Properly Limited Testimonyofthe Defense Expert The defense called Dr. Amentto testify as a sexual assault expert. Defense counsel asked Dr. Ament to describe standard procedures and testing when examining a potential rape victim. (31 RT 7132-7134.) After Dr. Ament described the standard proceduresandtesting, the following exchange occurred: Q. In any of the information that you read concerningthis case, were any of those procedures followed? [PROSECUTOR]: I am going to object, your Honor,as calling for hearsay. THE COURT:Itis sustained. 117 Q. To your knowledge, were any of those procedures followed in this particular case? [PROSECUTOR]: Objectionas calling for - - lack of personal knowledge. THE COURT:It is sustained. (31 RT 7134.) Appellant claimsthetrial court’s rulings were error, because hearsay and lack of personal knowledge are not proper objections to questions asked of an expert. (AOB 271.) While it is true that expert testimony in the form of an opinion can be based on hearsay and facts outside the personal knowledge ofthe expert (Evid. Code, § 801), the questions asked by defense counsel here called for factual statements not opinions. The questions, as worded, asked Dr. Amenttotell the jury whether any of the procedures he just outlined were followedin this case, which would have amounted to factual statements of which he had no personal knowledge, and would have only known through the hearsay statements contained in the medical examiners reports. As such, respondent submits the objections were properly made andsustained. Furthermore,error, if any, was harmless. The question called for a yes or no answer and that answer was yes, because severalof the tests described by Dr. Ament were performedin this case. (28 RT 6412-6413.) Respondent submits it is not reasonably probable that a result more favorable to appellant would have occurred had Dr. Ament been allowed to answerthe question (People v. Watson, supra, 46 Cal.2d at p. 836), and appellant makes no argumentto the contrary (AOB 272). 118 C. The Trial Court Properly Denied Appellant’s Motion Requesting a Mistrial Following The Admission of Appellant’s Prior Statement Referring to Alicia as “The Bitch” Prior to the first trial, the defense filed a motion in limine to exclude certain statements appellant made to Detective Stratton in which hereferred to Alicia as “the bitch,” as being more prejudicial than probative. (4 CT 959-966.) The trial court ruled the term “bitch,” while commonly used by young African-American mento refer to all women, wasstill offensive in the Anglo culture and should be excluded under Evidence Codesection 352. (2 RT 678-679.) The prosecutor indicated he would instruct the detective on the court’s ruling. (2 RT 679.) Prior to the secondtrial, the trial court indicatedall in limine rulings from the first trial would carry over to the secondtrial. (18 RT 4249.) During the secondtrial, Detective Stratton testified that during an interview with himself and Detective Herman appellantstated, “I’m conniving just like you’re conniving, but I didn’t kill the bitch.” (29 RT 6800.) Defense counsel objected to the statement, movedto strike it, requested that the trial court instruct the jury not to considerit, and asked the court to declare a mistrial. (29 RT 6800-6801.) Thetrial court offered to either strike the statementor to instruct the jury that young African-American males use the word bitch in a non-pejorative manner, but declined to declare a mistrial. (29 RT 6802.) The defense chosethe latter and thetrial court instructed the jury as follows: Ladies and gentlemen, you just heard the officer testify to a quotation from the defendant and I'll take judicial notice of something. Judicial notice is sort oflike a stipulation, that the attorneys stipulate to certain facts, you accept them as true. Judicial notice is a notice by the Court that somethingis accurate or factual, 119 such as that the 19th of May in 1997 was a Monday,for example. That would be judicialnotice. I'l] take judicial notice that in our society young African- American males frequently use the word bitch in a non- pejorative fashion, whereasit is generally true that Caucasian males and Hispanic males, if they use that word, are using it in an angry fashion with regard to females. (29 RT 6802-6804.) Appellant claims, without citation to authority (see Cal. Rules of Court, rule 8.204(a)(1)(B)), that the trial court erred in refusing to grant a mistrial. (AOB 273-275.) While statements of a witness can form the basis of a motion for a mistrial, a court should only grant a mistrialif “‘the court is apprised of prejudice that it judges incurable by admonition or instruction.” (People v. Wharton (1991) 53 Cal.3d 522, 565, quoting People v. Haskett (1982) 30 Cal.3d 841, 854.) Whethera particular incident is incurably prejudicial is by its nature a speculative matter, and thetrial court is vested with considerable discretion in ruling on mistrial motions. (/bid.) Here, the trial court correctly found that the error could be cured by either striking the word or instructing the jury on different uses of the word. Defense counsel chose to have the court instruct the jury and the jury is presumedto follow thoseinstructions. (People v. Hovarter (2008) 44 Cal.4th 983, 1005.) Moreover, “[jJurors today are not likely to be shocked by offensive language.” (People v. Edelbacher (1989) 47 Cal.3d 983, 1009; see People v. Halsey (1993) 12 Cal.App.4th 885, 891 [no abuse of discretion in allowing a witness’ testimony as to defendant’s statementthat the deceased victim wasa “son-of-a-bitch”].) Applying these principles, respondent submitsthe trial court properly denied appellant’s motionfor a mistrial, because admission of the word “bitch” was not incurably prejudicial. 120 D. The Trial Court Properly Sustained the Prosecution’s Objection to Appellant’s Closing Argument Appellant claimsthe trial court erred in sustaining the prosecutor’s objection, which waslater withdrawn,to part of appellant’s closing argument. (AOB 275-279.) Respondentdisagrees. During closing argument, defense counsel commented on the prosecutor’s interview of Hiler duringthefirst trial as follows: Remember, Lori Hiler is the very first - - the very first thing she says to Stratton as to the time, she says between 10:10, 10:15. Where in the heck does she come up with that time? Where does she come up with the time? We will get to the details about the time in a minute. Okay. Oneofthe things I want to talk about is Mr. Somers, along with Mr. Bresson, went in for an interview. And you have to understand the context ofthis, they go in while thelasttrial was in progress. Listen to the tape. Five times,five times you will see that Mr. Somers saysat this point in time. This point in time was DecemberIst of 798. At this point in time, Ms.Hiler, do you remember who you saw. Atthis point, saysit five times. At this point in time, Ms. Hiler, can youtell me it was black or white or whatever. At this point in time. You will also notice on the tape he neversays at the time you madethe identification. At the time you were talking to Detective Stratton, what did you think. Were you lying to Stratton. Never says that. In addition to that important point is when she turns around and says 9:00, and even though hesays- - he says it so many times, it is all really fast, just boom, boom, boom, boom. Listen to the tape. He repeats it, doesn’t question her. He is looking for something that he can turn around anduse againstherlater. Becauseif the time is so important, as you ladies and gentlemen knowit is, the time is so important, why would hesit there and say, now youare saying nine o’clock now. Do you remember telling Detective Stratton you said 10:00. Wasn’t it 10:00. Are you sure it was 9:00 and not 10:00. Why doesn’t he ask those questionsif it is so important. And the answeris, becauseheis not going there to investigate, he is going there to find something to use against her whenshetestifies because- - 121 (33 RT 7586-7587.) The prosecutor objected to this line of argumentas being outside the scope of the evidence, but subsequently withdrew the objection. Despite the withdrawal, thetrial court sustained the objection. (33 RT 7587.) While counsel is accorded “greatlatitude at argument to urge whatever conclusions counsel believes can properly be drawn from the evidence[citation],” counsel may not assumeorstate facts not in evidence [citation] or mischaracterize the evidence [citation]. (People v. Valdez, supra, 32 Cal4th at pp. 133-134.) Here, defense counsel was urging the jury to make conclusions about the prosecutor’s motives based on pure speculation. Moreover, whatever the prosecutor’s motives were in obtaining a secondinterview, they were simply not relevant to any issue before the jury. As such, respondent submitsthe trial court properly sustained the objection. Assuming, arguendo,thetrial court’s ruling waserror, it was harmless. Defense counsel was given an adequate opportunity to rehabilitate Hiler on cross-examination, and the jury had the benefit of that testimony in determining whether Hiler was a credible witness. Additionally, the jury was instructed that argumentis not evidence (15 CT 4088-4089; 33 RT 7649) and they are presumed to have followed that instruction (People v. Hovarter, supra, 44 Cal.4th at p. 1005). It is, therefore, not reasonably likely that appellant would have obtained a more favorable result absent any error. (People v. Watson, supra, 46 Cal.2dat p. 836.) E. The Trial Court Properly Instructed the Jury Appellant claimsthe trial court erred in omitting a sentence from the defense’s proposedinstruction on third-party culpability. (AOB 279-281.) Respondent disagrees. The proposedinstruction read as follows: 122 You have heard evidencethat a person other than the defendant may have committed the offense with which the defendantis charged. The defendantis not required to prove the other person’s guilt beyond a reasonable doubt. Defendantis entitled to an acquittal if the evidence raises a reasonable doubtin your mindsas to the defendant’s guilt. Such evidence maybyitself raise a reasonable doubtas to defendant’s guilt. However,its weight and significance, if any, are matters for your determination. If, after consideration of this evidence, you have a reasonable doubt that the defendant committed this offense, you must give the defendant the benefit of the doubt and find him notguilty. (15 CT 4134.) The prosecutor objected to the fourth sentence as a comment on the weight of the evidence. (32 RT 7406-7407.) Thetrial court agreed to give the modified instruction as follows: You have heard evidence that a person other than the defendant may have committed the offense with which the defendantis charged. The defendantis not required to prove the other person’s guilt beyond a reasonable doubt. Defendantis entitled to an acquittal if the evidence raises a reasonable doubt in your minds as to the defendant’s guilt. Its weight and significance,if any, are matters for your determination. If, after consideration of this evidence, you have a reasonable doubt that the defendant committed this offense, you must give the defendant the benefit of that doubt and find him notguilty. (15 CT 4134; 32 RT 7407-7408; 33 RT 7660.) Pinpoint instructions “relate specific facts to a legal issue in the case or ‘pinpoint’ the crux of a defendant’s case.” (People v. Saille (1991) 54 Cal.3d 1103, 1119.) A defendantis entitled to a pinpoint instruction upon request when there is evidence to support the defense’s theory, but thetrial court has no sua sponte duty to give such an instruction. (/bid.) Appellant seems to argue that the instruction as given was required to, butdid not, inform the jury of the standard of proof needed before it could consider evidence ofthird-party culpability. (AOB 280-282.) Respondent does not follow this argument, becauseit is clear from the face of the instruction that 123 appellant is not required to prove the other person’s guilt beyond a reasonable doubt and the evidence of third-party culpability need only raise a reasonable doubt in the mindsofthe jurors for them to find appellant not guilty. Additionally, respondent submits the deleted sentence was repetitive and unnecessary because the sentence immediately precedingit and the last sentence of the instruction both indicate that third-party culpability evidence, if believed, is enough standing aloneto raise a reasonable doubtas to a defendant’s guilt. For these reasons, respondent submits the trial court did not err in giving the modified version ofthe instruction. Assuming, arguendo,the trial court erred, any error was harmless. The question is whether “it is reasonably likely that the court’s instruction[] caused the jury to misapply the law.” (People v. Carrington (2009) 47 Cal.4th 145, 192.) A single jury instruction cannot be viewedin isolation, but must be examined with all of the instructions as a whole. (/bid.) Here, the trial court instructed the jury on reasonable doubt and the burden of proof (15 CT 4132-4133; 33 RT 7660), and the jury could have acquitted appellant had it believed the testimony implicating Charles as the murderer. (See People v. Gutierrez (2009) 45 Cal.4th 789, 824-825.) Respondent submits that even if the standard is harmless beyond a reasonable doubt as appellant asserts (AOB 282), in light of the instructions as a whole, appellant wasnot prejudiced. | X. THERE ARE NO PRE-TRIAL OR GUILT PHASE ERRORS TO ACCUMULATE Appellant argues that even if no single pre-trial or guilt phase error acted to deprive him ofa fair trial, the many errors he has identified, when accumulated, must have done so. (AOB 283-285.) Respondent, however, has shown that none of appellant’s contentions have merit. Moreover, appellant has failed to establish prejudice from any ofthe claimsheraises. 124 Accordingly, his claim of cumulative error must be rejected. (See Peoplev. Lewis, supra, 25 Cal.4th at p. 635; People v. Staten, supra, 24 Cal.4th at p. 464.) Penalty Phase XJ. THE TRIAL COURT PROPERLY DENIED APPELLANT’S MOTION FOR A MISTRIAL AND PROPERLY DECLINED TO DISMISS A JUROR WHO REPORTEDLY SAW APPELLANT MOUTH THE WORDS “I HATE YOU” TO HER Appellant claims the trial court should have declared a mistrial after a juror informed the court that she believed appellant had mouthed the words “T hate you” to her while staring at her in an angry manner, and she had communicated her observation to the other jurors. Appellant further claims that, at a minimum,the trial court should have dismissed that juror, and failure to do either of these was prejudicial. (AOB 286-297.) Respondent disagrees. A. Factual and Procedural Background Shortly after the jury retired for penalty phase deliberations,thetrial court received a note from the jury foreperson indicating Juror No. 6 believed appellant was trying to intimidate her. (35 RT 8036.) Juror No. 6 wasbroughtinto the courtroom so the court and counsel could question her aboutthe situation. (35 RT 8036.) Juror No. 6 indicated that during the testimony of a penalty phase witnessearlier that day, appellant glared at her, mouthed some words, and shook his head. (35 RT 8037-8038.) Then, the following exchange occurred betweenthetrial court and Juror No.6: Q. [by The Court]: Okay. From what he was mouthing, what were you able to determine what he was saying to you? A. (Juror nods head affirmatively.) I could be wrong. I mean, I could have misunderstood what he was mouthing. But from whathe said, I hate you. 125 Q. All right. That was the impression that you got of what he wassaying? A. (Juror nods head affirmatively.) I could be wrong. I could be wrong. Q. Allright. If you misunderstood the wordshesaid, did the visual confrontation, I mean, you know,looking at each other and locking eyes, concern you? A. I don’t know. It was - - it was kind oflike - - It wasn’t like - - it was just kind of- - yes, in a wayit did. But, it could have- - the way he waslooking could have been took in different ways, depends. | mean,it looked kind of confrontational. But he could have- - he could have not meantto look that way. I mean, I look some ways sometimesand I don’t meanto look that way. Butit just - - that’s what I got from it. It was confrontational and kind ofa little bit - - kind of like anger look to it. Q. All nght. Let me ask you this: Given that that was your impression that that was what was happening, do you feel that has affected yourability to be a fair and impartial deciderofthis matter? A. No. Q. You do not? A. No Q. Do youfeel you can still go back, deliberate and make whateverdecision you feel is appropriate? A. Yes. (35 RT 8038-8040.) Defense counsel asked Juror No. 6 if she had communicated any of this information to the rest of the jurors, and she said she had told them everything she hadjust told the court and counsel. (35 RT 8040.) She reiterated that she could have been mistaken about what appellant was mouthing, but she was confident that she understood him correctly. (35 RT 126 8040-8041.) She also stated appellant looked somewhathostile and he shook his head at her. (35 RT 8041.) Thetrial court again asked her if she felt like she could proceed as a jurorin this case, and she indicated that she could. (35 RT 8042.) The court then told her to rejoin the rest of the jurors and admonishedhernotto discuss what had just occurred with the other jurors, and she assured the court that she would not. (35 RT 8042-8043.) After Juror No. 6 returned to the jury room, defense counsel moved for a mistrial as to the penalty phase, arguing that Juror No. 6 had communicated her observations to the jury and those observations were prejudicial to appellant. (35 RT 8043-8044.) The prosecutor opposedthe motion for a mistrial, stating there were other curative measures well short of a mistrial that could be used to address the issue. (35 RT 8044.) The trial court denied the defense’s motion, stating the jury was free to observe the demeanorof the parties in the courtroom andactions taken by the defendantthat are perceivedas hostile are not grounds for a mistrial. (35 RT 8044-8045.) The trial court offered to discuss other remedial measures if the defense had anyto offer. (35 RT 8044-8045.) Defense counsel indicated he did not have any immediate suggestions, but asked the court to dismiss the jury for the day so he and co-counsel could use the three-day holiday weekend to come up with some suggestions. (35 RT 8046.) Since it was the end ofthe day,thetrial court dismissed the jury for the weekend. (35 RT 8046.) On the following Tuesday morning, the defense presented the court with points and authorities and a request for a jury instruction. (35 RT 8050.) Defense counsel requested that the court bring Juror No. 6 back into the courtroom, because the defense wanted to ask her a few questions concerning herability to read lips and exactly whenthis incident occurred. (35 RT 8050.) The trial court denied this request, stating she was already 127 asked the pertinent questions and further questioning would notbe helpful. (35 RT 8050-8051.) The trial court found no problem with the jury using their observations of appellant’s demeanorin the courtroom duringtheir deliberations in the penalty phase. (35 RT 8055-8058.) After further discussion the court and counsel agreed on aninstruction to give to the jury. (35 RT 8057-8063.) Defense counsel then requested that Juror No. 6 be excused, andthetrial court denied that request. (35 RT 8063-8066.) Thereafter, the trial court instructed the jury as follows: Ladies and gentlemen of the jury, as you know, you went out to deliberate on the penalty phaseof thetrial at about 3:30 p.m. on Friday afternoon. Thereafter, at about 4:30 p.m., actually it was 4:27 p.m., you sent out a note indicating that one of your numberfelt a threat, the defendant wastrying to intimidate that juror. Wespoketo the juror individually and the juror rejoined you briefly before we adjourned for the day. The juror told us they had shared with you the basis of their perception which was based on conductof the defendant they had observed in the courtroom. Now,as jurors in the penalty phase ofa capital trial, you can draw inferences based upon the defendant’s demeanorin the courtroom, inasmuchas the defendant’s character is at issue in this phase of the trial. However, you can only draw inferences based upon yourpersonal observations, positive or negative, and not on what another juror may have observed. Nor may you speculate upon any ambiguous conductofthe defendant you have personally observed. (35 RT 8066-8067.) The court asked the jury collectively whether they could fairly decide the issue before them basedonthis instruction, and the jury affirmatively noddedtheir heads. (35 RT 8067.) The court then individually polled the jurors as to whether any one of them was concerned that they could not be fair and impartial after receiving the information aboutthe juror’s observation. (35 RT 8067.) Each juror answered “no.” (35 RT 8067- 8068.) 128 B. The Trial Court Properly Declined to Grant A Mistrial or Dismiss Juror No. 6 Appellant argues the juror’s observation in this case was extra-judicial information broughtinto the deliberation room, because the other jurors did not personally observe the conduct in question. He further argues that the court’s refusal to dismiss Juror No. 6 deprived him ofhis rights to confront witnesses against him andto a fair and impartial jury. (AOB 291.) Respondentdisagrees. Juror misconduct can form the basis of a motion for a mistrial, but a court should only grant a mistrial if “‘the court is apprised of prejudice that it judges incurable by admonition orinstruction.’” (People v. Wharton, supra, 53 Cal.3d at p. 565, quoting People v. Haskett, supra, 30 Cal.3dat p. 854.) Whethera particular incident is incurably prejudicialis by its nature a speculative matter, and thetrial court is vested with considerable discretion in ruling on mistrial motions. (Ibid.) The court may discharge a juror and substitute an alternateif it finds a juror is unable to perform his or her duty. [Citation.] A trial court’s decision to discharge a juror for misconductis reviewed for abuse of discretion and is upheld if supported by substantial evidence. [Citations.] The juror’s inability to perform mustappearin the record as a demonstrable reality. [Citation.] (People v. Ledesma (2006) 39 Cal.4th 641, 743.) Here, as demonstrated below, there was no misconduct and,even if there was,the court sufficiently admonished the jury to cure any potential prejudice to appellant. In People v. Heishman (1988) 45 Cal.3d 147, this Court held a prosecutor’s reference, during penalty phase argument,to the defendant’s facial demeanorwas proper, because the defendant had placedhis character 129 at issue as a mitigating factor and the jury was allowed to draw inferences from their observations of the defendant in the courtroom. (/d. at p. 197.) In People v. Williams (1988) 44 Cal 3d 1127, some,but notall, of the jurors saw the defendant mouth the words,“I’m going to get each and every one of you mother fuckers” after the guilt phase verdict was returned. (Jd. at pp. 1154-1155.) This Court noted that consideration of extra-judicial evidence by the jury is misconduct and groundsfor a newtrial if the defendant was prejudiced byit. (/d. at p. 1156.) This Court, however, found that this rule did not necessarily apply to jurors’ perceptionsof in- court conduct, particularly when the defendant engagesin disruptive or improper conduct. (/bid.) This Court further noted the general policy that a defendant cannotprofit from his own misconduct, and ultimately found that if there was error it was harmless. (/d. at pp. 1156-1157.) Here, there was no misconduct because appellant put his character for non-violence at issue during the penalty phaseofthetrial, and the jury was entitled to rely on in-court observations of appellant’s demeanorin reaching their penalty verdict. (See People v. Heishman, supra, 45 Cal.3d at p. 197.) Appellant argueshis caseis distinguishable from cases in which the use of the defendant’s actions and demeanorin court has been held proper, becausehis actions were only noticed by one juror. (AOB 291-295.) Respondentfindsthis argument unpersuasive. In Heishman, supra, it was the prosecutor who commentedon the defendant’s facial demeanorandthis Court did not express any concern overthe fact that the jurors may not have even observed the conduct the prosecutor was referencing. (Peoplev. Heishman, supra, 45 Cal.3d at p. 197.) In Williams, supra, the alternate juror who brought the issue to the court’s attention specifically said she did not personally witness the conduct and the jury foreman said he saw the defendant mouth something but did not hear what he said. (People v. Williams, supra, 44 Cal.3d at pp. 1154-1155.) Again, this Court did not 130 express concern aboutthe fact that some of the jurors did not witness the conduct or hear the commentin question or that they were told aboutthe defendant’s conduct by other membersofthe jury who had witnessedit. (/d. at p. 1156.) Respondent submits the conductin question in the present case was akin to the conduct in question in Heishman and Williams and,as such, could properly be considered bythe jury. Assuming, arguendo,this conduct was more akin to improperextra- judicial evidence, there wasstill no basis for a mistrial or removal of Juror No. 6. Consideration of extraneous material by a juror is misconduct and creates a presumption ofprejudice that may be rebutted by a showing of no prejudice. (People v. Williams (2006) 40 Cal.4th 287, 333.) The effect of juror misconduct from receipt of information from extraneous sources can be non-prejudicial and is judged by review ofthe entire record. (/bid.) The verdict will be set aside only if there appears a substantial likelihood of Juror bias. Un re Lucas (2004) 33 Cal.4th 682, 696-697; In re Carpenter (1995) 9 Cal.4th 634, 653.) Juror bias may be demonstrated in two ways: (1) if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the jury,or (2) looking at the nature of the misconduct and the surrounding circumstances,it is substantially likely the jury was actually biased against the defendant. (/bid.) Respondent submits appellant mouthing the words “I hate you” was not so inherently prejudicial that it is substantially likely to have influenced the jury. (Seee.g., People v. Williams, supra, 44 Cal.3d at pp. 1155-1157 [defendant mouthing the words “I’m going to get each and every one of you mother fuckers” found not prejudicial].) Furthermore, respondent submits the record indicates the jury was not actually biased against appellant. Here, the trial court instructed the jury that it could not draw inferences based on whatanother juror may have seen andthey could not speculate about ambiguous conduct that they personally observed. (35 RT 131 8066-8067.) The jury is presumed to have followedthis instruction. (People v. Hovarter, supra, 44 Cal.4th at p. 1005.) Finally, the court polled the jurors collectively and individually on whether theyfelt they couldstill be fair and impartial and eachjuror said that they could. (35 RT 8067- 8068.) As such, appellant’s claim should be rejected. XII. THE PROSECUTOR DID NOT COMMIT MISCONDUCT WHEN HE USED THE NAME “WILLIE HORTON”IN HIS PENALTY PHASE CLOSING ARGUMENT AND THE TRIAL COURT HAD NO DUTY TO ADMONISH THE JURY Appellant claims the prosecutor committed misconduct when he referred to him as “Willie Horton”three times*’ during his penalty phase closing argument. Hefurther claimsthat the trial court should have instructed the jury not to consider the Willie Horton matter in deciding appellant’s case. (AOB 298-299.) Respondent disagrees with appellant’s factual determinations and legal conclusions. During his penalty phase closing argument, the prosecutor made the following statements: Mrs. Thompson camein two years later, she identified Mr. Harris in court. She had picked him out of a photo lineup at the time. And she wasin the store with him. Because she hadn’t just seen him whenshe was two feet away from him face to face as he snatched herpurse, she also had seen him in the store a little bit earlier. And the photograph, People’s No. 16, shows Mr. Harris in the store behind herat the counter. It is a side view ofthe face as you will see it if you look at the evidence during deliberations. Butit is recognizable as him. He hasthe beard. She described at the time the short hair. You heard from Mr. Horton aboutjeri curls, but then what he saw,he said was jeri curls, I guessit is a matter of definition wherethe hairis really short. Even Willie Horton said he had on the hooded sweatshirt, the same type of garment, the samekindof- - ‘7 Appellant claims the name Willie Horton was mentionedthree times by the prosecutor, but the record shows the prosecutor said “Mr. Horton” once and “Willie Horton” once. (35 RT 7998-7999.) 132 (35 RT 7998-7999.) At this point, the court interrupted stating, “You said Willie Horton.” (35 RT 7999.) The prosecutor apologized andsaid, “Willie Harris followed Mrs. Thompson from that store and then he robbed her.” (35 RT 7999.) Appellant did not object to the prosecutor’s use of the name Willie Horton, nor did he request any type of admonition inrelation to the name Willie Horton. (35 RT 7999.) Appellant claims the name Willie Horton referred to a black man who murdered a white boy in Massachusetts while released from prison on a weekendpass while Michael Dukakis was the governor of Massachusetts, and this fact was used against Dukakis during his 1988 presidential campaign. (AOB 221-223, fn. 76; 298-299.) Appellant further claims the use of the name Willie Horton was prosecutorial misconductandthetrial court should have admonishedthe jury. (AOB 298-299.) All of these claims lack merit. First, appellant forfeited his claims of prosecutorial misconduct and trial court error in not admonishing the jury byfailing to timely object to the prosecutor’s statement and to request that the jury be admonished regarding the alleged misconduct. (People v. Stanley (2006) 39 Cal.4th 913, 952.) . Second, and more importantly, there was no misconduct. During the penalty phaseofthetrial, the defense called Jack Lyle Horton as a witness. (35 RT 7888.) Horton was a witness to the purse snatching that the prosecution introduced as evidence of an unchargedcrime against appellant. (35 RT 7888-7889.) Hortontestified that the suspect had jeri curls and was wearing a blue hooded sweatshirt. (35 RT 7889, 7891-7892.) Whenthe prosecutor said, “You heard from Mr. Horton about the jeri curls ...,;” respondent submits he was talking aboutthe testimony of Jack Lyle Horton. Twosentenceslater, when the prosecutorsaid, “Even Willie Horton said he had on the hooded sweatshirt . . .,” respondent submits the 133 prosecutor simply misspoke but was again referencing the testimony of Jack Lyle Horton, not the Massachusetts murderer. Assuming, arguendo,the prosecutor was referencing the murderer Willie Horton, appellant fails to show how he wasprejudiced byit. Appellant claims that even though the ages ofthe jurors are not in the record it is still reasonable to assume that mostorall of them would have knownabout the Willie Horton controversy, which occurred 11 years earlier. (AOB 299.) Respondent submitsit is pure speculation to assume the jurors knew who Willie Horton was. It is equally possible that most or all of the jurors knew nothing about Willie Horton. Ifa juror was 18 years old at the timeoftrial, presumably the youngest a juror could be,he or she would have only been seven years old in 1988, and probably was not following the presidential campaign. Additionally, there was no mention in the record that there was a murderer from Massachusetts named Willie Horton. Therefore, even under the more stringent federal constitutional standard, any error was harmless beyond a reasonable doubt. (People v. Adams (1993) 19 Cal.App.4th 412, 444 [prejudice cannot be based on pure speculation].) XIII.THE TRIAL COURT PROPERLY REFUSED TO INSTRUCT THE JURY THAT THEY MUST IMPOSE A SENTENCEOF LIFE WITHOUT THE POSSIBILITY OF PAROLE IF THEY HAVE ANY DOUBTS ABOUT IMPOSING DEATH Appellant claimsthe trial court erred in refusing to give his proffered instruction which told the jury they must choose a sentence oflife without parole if they had any doubt about which penalty to impose. (AOB 300- 301.) Respondentdisagrees. | The instruction in question read as follows: If you have a doubt as to which penalty to impose,death orlife in prison withoutthe possibility of parole, you must give the defendant the benefit of that doubt and return a verdict fixing the penalty at life in prison without the possibility ofparole. 134 (16 CT 4375.) Thetrial court refused to give this instruction,statingits reference to the burden of proof had the potential to confusethe jury. (34 RT 7841.) Thetrial court properly refused to give this instruction. There is no requirementthat the court instruct the jury that it must find death to be the appropriate penalty beyond a reasonable doubt (People v. Medina (1995) 11 Cal.4th 694, 782; People v. Berryman (1993) 6 Cal.4th 1048, 1101; People v, Diaz (1992) 3 Cal.4th 495, 569), and the jury need not find the death penalty appropriate beyond a reasonable doubt. (People v. Stanley, supra, 39 Cal.4th at p. 963). The court was not required to give an instruction that incorrectly stated the law. (People v. Gurule (2002) 28 Cal.4th 557, 659.) Because the beyond a reasonable doubt standard does not applyin this context, the trial court properly declined to give appellant’s proffered instruction. XIV. THERE ARE NO CONSTITUTIONAL FLAWSIN THE CALIFORNIA DEATH PENALTY STATUTES WARRANTING REVERSAL OF APPELLANT’S SENTENCE Appellant contends the California Death Penalty law has numerous constitutional defects. (AOB 303-309.) There are no such constitutional defects. -A. The California Death Penalty Law Does Not Fail To Adequately Narrow The Class Of CrimesEligible For The Death Penalty Appellant claimsa violation of the Eighth Amendment requirement to narrow the class of death eligible persons. (AOB 303.) He contends the specified special circumstances are overly broad and have been construed so broadly that almost every first degree murder qualifies as death eligible. (AOB 303-304.) This claim has been previously rejected by this court. (People v. Hoyos (2007) 41 Cal.4th 872, 926; People v. Gurule, supra, 28 Cal.4th at pp. 663-664; People v. Michaels (2002) 28 Cal.4th 486, 541; 135 People v. Koontz (2002) 27 Cal.4th 1041, 1095; People v. Hillhouse (2002) 27 Cal.4th 469, 510; People v. Carpenter (1999) 21 Cal.4th 1016, 1064.) B. There Is No Constitutional Violation For The Failure To Require The Jury To Unanimously Find Death Is The Appropriate Punishment Beyond A Reasonable Doubt Appellant claimsa violation of his Eighth Amendmentright to a reliable death verdict by the failure to require the jury to unanimously find death is the appropriate punishment beyond a reasonable doubt. (AOB 305-306.) The absence of such a requirementis not unconstitutional. (People v. Hoyos, supra, 41 Cal.4th at p. 926; People v. Gutierrez (2002) 28 Cal.4th 1083, 1151; People v. Michaels, supra, 28 Cal.4th at p. 541; People v. Koontz, supra, 27 Cal.4th at p. 1095; People v. Hillhouse, supra, 27 Cal.4th at p. 410; People v. Kipp (2001) 26 Cai.4th 1100, 1137.) C. There Is No Constitutional Violation For The Failure To Require The Jury To Unanimously Find The Aggravating Factors True Beyond A Reasonable Doubt Appellant claims a violation of his Sixth, Eighth, and Fourteenth Amendmentrights for the failure to require the jury to unanimously find the aggravating circumstances true beyond a reasonable doubt. (AOB 307- 308.) The absence of such a requirementis not unconstitutional. (People v. Hoyos, supra, 41 Cal.4th at p. 926; People v. Gutierrez, supra, 28 Cal.4th at p. 1151; People v. Michaels, supra, 28 Cal.4th at p. 541; People v. Koontz, supra, 27 Cal.4th at p. 1095; People v. Hillhouse, supra, 27 Cal.4th at p. 410; People v. Kipp, supra, 26 Cal.4th atp. 1137.) | D. There Is No Constitutional Requirement For Inter- Case Proportionality Review Appellant claimsa violation of his Eighth Amendmentright to be free from arbitrary and capricious imposition of a death sentence bythe failure to require inter-case proportionality. (AOB 309.) There is no 136 constitutional requirementfor inter-case proportionality review. (People v. Gurule, supra, 28 Cal.4th at p. 663; People v. Michaels, supra, 28 Cal.4th at p. 541; People v. Koontz, supra, 27 Cal.4th at p. 1095; People v. Hillhouse, supra, 27 Cal.4th at p. 511.) CONCLUSION Accordingly, respondent respectfully requests that the judgment be affirmed. Dated: December 9, 2009 FR1I999XS0003 95035955.doc Respectfully submitted, EDMUND G. BROWN JR. Attorney General of California DANER. GILLETTE Chief Assistant Attorney General MICHAEL P. FARRELL Senior Assistant Attorney General HARRY COLOMBO Deputy Attorney General WILLIAM K. KIM Deputy Attorney General Frauke D. AMANDAD. CARY Deputy Attorney Genera Attorneysfor Respondent 137 CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’SBRIEFusesa 13 point Times New Romanfont and contains 41,984 words. Dated: December 9, 2009 EDMUND G. BROWN JR. Attorney General of California Anadl~ D. AMANDAD. CARY Deputy Attorney General Attorneys for Respondent DECLARATION OF SERVICEBY U.S. MAIL Case Name: People v. Harris No.: 8081700 J declare: I am employedin the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 yearsof age or older and not a party to this matter. I am familiar with the businesspractice at the Office ofthe Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplacedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same dayin the ordinary course of business. On December 16, 2009,I served the attached RESPONDENT’S BRIEFbyplacinga true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 2550 Mariposa Mall, Room 5090, Fresno, CA 93721, addressed as follows: Richard I. Targow, Esq. The Honorable EdwardR.Jagels Attorney at Law District Attorney . P.O. Box 1143 Kern County District Attorney's Office Sebastopol, CA 95473-1143. 1215 Truxtun Avenue representing appellant HARRIS Bakersfield, CA 93301 (2 copies) Barry M.Karl Governor’s Office Attorney at Law Legal Affairs Secretary 620 Jefferson Avenue State Capitol, First Floor Redwood City, Ca 94063 Sacramento, CA 95814 County of Kern California Appellate Project (SF) Superior Courts Building 101 Second Street, Suite 600 Superior Court of California San Francisco, CA 94105-3672 1415 Truxtun Avenue Bakersfield, CA 93301-4172 I declare under penalty of perjury under the lawsofthe State of California the foregoingis true and correct and that this declaration was executed on December 16, 2009, at Fresno, California. Lynda Gonzales SoeSSwrrnd, Declarant ! Signature FR1999XS0003 95036055.doc