PEOPLE v. REED

Respondent’s Brief

Cal.September 26, 2011

In the Supreme Court of the State of Calitarnia THE PEOPLE OF THE STATE OF CALIFORNIA, | Plaintiff and Respondent, Case No. S082776 % CAPITAL CASE ENNIS REED, Defendant and Appellant. i. SUPREME COURT FILED Los Angeles County Superior Court, Case No. TA037369 SEP 2 § ant The Honorable John Joseph Cheroske, Judge Frederick K. OhirienClerk RESPONDENT?’S BRIEF ~ Deputy KAMALA D. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General SHARLENE A. HONNAKA Deputy Attorney General WILLIAM H. SHIN Deputy Attorney General State Bar No. 216310 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 897-2038 Fax: (213) 897-6496 Email: DocketingLAAWT@doj.ca.gov Attorneysfor Respondent Page Statementof the Case...de eaneaeeseeeneeesecneeascansseeessatesseasesaseneesenttages Statement Of Facts ........cccessssessessessseessesseseseeseeeseseeseecsseeeecesserseatensereesensenss 2 I. Guilt Phase...ceeeeeeeessteees biesaseesnecsneeenenenaternesaeennensenneen2 A. PLOSCCULION 0... ceeeecceeesesesceseeseesessesecessecsesseestscssvenseeees 2 l. Murder of Amarilis Vasquez and Attempted Murder of Carlos Mendez.............. 2 2. Murder of Paul Moreland and Attempted MurderofRoy Fradiue ............cccccessesesseeeees 6 B. Defense 0.0... .cccccccccesssescescccecesseucestsesecesessseseeseseeesennees 11 C. Rebuttalocccccccsscsesssecesscescsesssesssesssssssssenssseeasers 12 Il. Penalty Phase ...........cccsessscssssscesscescsesseusssceserevseescessueesssesess 13 A. PLOSECULION ....cccssescssssssessvessutsssecessecsavenecesseesucaseceeesnes 13 1. Murder of Vasquez and Attempted Murder of MendeZ ..........ccccccsecsssesssesceesensene 13 2. Murder of Moreland and Attempted . Murder of Fradivie........c.cccceseesesssesscesssesesees 15 B. Defense.....seecesssseseeseeeeseveessessesesesseesatensenessecanenetenees 17 Co Rebuttal. ccccssesssssssceesnetsssesenesssetnssessassstn 19 Argument sieeneeaecnesnasassneeneseeneaesenneeseesscsveassnsessesuensesseaissnteneeseussunenseesasseseetins 20 I, The Trial Court Did Not AbuseIts Discretion in Denying Appellant’s Motion to Continue the Trialto . Permit a Defense Witnessto Testify .........cccccceeseeeeerees 20 A, Factual Background.........ccccessescessesscesesesessessesneretes 20 B. The Trial Court Properly Denied the Request for COMtinuance .......eceeesesesesseseseessesscstsesecssenseserees 22 C, Any. Error Was Harmless..........0ccccccccssssssseececeeseesees 25 Il. There Was Substantial Evidence to Support Appellant’s Convictions for the Murder of Vasquez and the Attempted Murder of Mendez...0........cessceseeseseeeees 27 TABLE OF CONTENTS IIL. IV. Vi. TABLE OF CONTENTS (continued) Page A. Standard of RevieW.sccsssssssssssssssssssssesssensesessee 27 B. Sufficient Evidence Supports the Jury’s Finding that Appellant Wasthe Shooterof Mendez and VASQUECZ....-sesesecseestsesseeeereeseaseeetenestennenssentenentaneresens 28 ThereWas Substantial Evidence to Support Appellant’s Convictions for the Murder of Moreland and the Attempted MurderofFradiue .............eseseeeeneeeees 32 A. Standard of Review........c:ccsccscsesessseeeeeeeesveseneeaesens 32 B, Sufficient Evidence Supports the Jury’s Finding That Appellant Was the Shooter of Moreland ANG Fradive oo... cesccceceeeesseeesseecsesenecseeeeeseneersneenaees 33 The Trial Court Properly Denied Appellant’s Wheeler/Batson Motion During the Guilt Phase Jury Selection Because He Failed to Establish a Prima Facie Case of Group Bias...........ccscccccsssseeesecssrresssnsesseneees 34 A. Factual Background..........ccceeesecesseeeeeneeeseterererersaees 34 B. Applicable Law....ccccccccccccssssssssssssssssssssessssssecsserenss 36 C. The Record Supports the Trial Court’s Determination That Appellant Failed to Establish a Prima Facie Showing of Discriminatory PUrpOSe ..........cscceeeseressseeeeeeseeseees 38 The Jury Was Properly Instructed with a Modified Version of CALJIC No. 2.92 oo... cecceeseeseeneetenetieeeteeseeeees 44 A. Factual Background.....cccccssssscssssccsssssseessseseesssvevesen 45 B. The Trial Court Properly Modified CALJIC No. 2.92 According to the Evidenceat Trial; in Any . Event, Any Error Was Harmless..............::csccceeesees 47 The Trial Court Did Not Abuse Its Discretion in Allowing Mendez’s Use of the Term “Devil” During Testimony .......cceccscecsseeseceessecesseecessusesseecsstessseessesseeesstesaes 50 A. Factual Background .o.....ccccccccssccesescessssesssesssesseeees 50 il VU. VII. IX, TABLE OFCONTENTS (continued) B. Appellant’s Guilt Phase Claim Has Been Forfeited for Failure to TimelyObject................ C. There Was No AbuseofDiscretion and in Any Event, Any Error Was Harmless..............::0000 The Trial Court Properly Denied Appellant’s Request for Lingering DoubtInstructions, Adequately Respondedto Jury’s Written Inquiry, Did Not Direct a Verdict of Death, and Was Not Required to Inform the Page bees 55 sees 55 Jury Aboutthe First Penalty Phase Mistrial and a Defense Witness’s Absence in Guilt Phase Trial ................ 58 A. Factual Background.........cccceceseseeseseeseseseeeteeeenes 58 B. The Trial Court Properly Refused to Give Lingering DoubtInstructions... 65 C, The Trial Court’s:Response to Jury’s Written Inquiry Was Proper..........ceccsessceseccsseseeseececseeeeseesanens . 67 D. The Trial Court’s Instructions That Appellant’s Guilt Was Conclusively Proven Did Not Direct a Verdict of Death... cccceeccessseesreessssseesseeeseeenseeens 69 E. The Trial Court Was Not Required to Instruct the Jury About the First Penalty Phase Mistrial and Galindo’s Absence During Guilt Phase............. 71 The Trial Court Did Not Coerce a Verdict During the Penalty Phase Retrial by Ordering the Jury to Continue the Deliberations.0...........cccccscsssecesecseseeesseesesneeessresseeesneseaes 72 A. Factual Background..........Seeeeaceceseeesaneeetsaeeeneseatersnees 72 B. The Trial Court Did Not AbuseIts Discretion in | Returning the Jury for Further Deliberations........... 73 The Trial Court Properly Refused Appellant’s Proposed Pinpoint Instructions.........cscecsecssesesteesseeseseseenes 76 The Use of CALJIC No. 17.41.1 Did Not Violate Appellant’s Constitutional Rights..........cccccccccssessseseeseseseees 77 il TABLE OF CONTENTS (continued) Page Xl. Appellant’s Penalty PhaseRetrial Did Not Violate His Constitutional Rights .0...... esc eeeeteecesecessecceeeneecesaeeeneeerateens 78 XII. The Jury WasProperly Instructed with CALJIC No. B85 co eseecesscessessebercesesssscsnessecsececcaesseeseseeeeseesneseeesessaeenenaeeas 79 XI. The Trial Court Properly Instructed the Jury with CALJIC No. 8.88 occ cecccccsceccecseeseecseecneeseaeessaeeesneesneeeareneseaes 79 XIV. The Special Circumstance of Multiple Murder Did Not Violate Appellant’s Eighth Amendment Rights................... 81 XV. The Imposition of Death Penalty Does Not Violate Appellant’s Eighth AmendmentRights...eeeeeneees 81 XVI. California’s Death Penalty Law Comports with the United States Constitution... cecececsersseeeseeeeeeeeneseneeeeens 82 XVII. The Methods of Execution Do NotAffectthe Validity of Appellant’s Death Penalty Sentence...............0. seeteetees 85 XVIII. There Was No ‘Cumulative Error .......ccceseseceeseseessseeeeseens 86 Conclusion ........seesseseeseeneaeensaeeensaneaeseatenenseanensneneetieensasanteraeeneeneentey 87° fy iv TABLE OF AUTHORITIES Page CASES Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] seveeeaeeeneeens.. 84 Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69]. viccececeseseees 34 Blakely v. Washington (2004) 542 U.S, 296 [124 S.Ct. 2531, 159 L.Ed.2d 403]...cee 84 Chapman v. California (1967) 386 US. 18 [87 S.Ct. 824, 17 L.Ed.2d 705)... ceeseccscecsescseees 25 Chipman vy. Superior Court (1982) 131 CalApp.3d 263 ...ccccccccsssssscscsstsssvesecsscecsesrscstevscsessans 74 In re Winship (1970) 397 U.S. 358 [90 S.Ct. 1068, 25 L.Ed.2d 368).....0.cee 81 J.E.B. v. Alabama ex rel, T.B. (1994) 511 U.S. 127 [114 S.Ct. 1419, 128 L.Ed.2d 89]...ese 37 Johnson v. California 7 (2005) 545 U.S. 162 [125 S.Ct. 2410; 162.L.Ed.2d 129] w.0...... 37, 38 Miller-El v. Cockrell - (2003) 537 U.S. 322 [123 S.Ct. 1029: 154 L.Ed.2d 931] wo37 Owens v. Superior Court (1980) 28 Cal.3d 238...eeseseeuesaseaveseseanesesecessacevesssssivensassvees 22 People v. Allen (1985) 165 Cal.App.3d 616 ....ccccccccssssscssscssersescevseversvevevsecesscaracsears 29 People v. Anderson” (1990) 52 Cal.3d 453 oo. eccccccscssscsesssscsssssescscscsvsvsvecseversvavecsusavacsvacavaes 71 People v. Arias (1996) 13 Cal.4th 92ooececeebenecereeetereeeeeesendesesseseeseesenees 28, 80 People v. Avila (2006) 38 Cal.4th 491 ooecceteeeereeereersee serene sesesseeenseeseeeenaees 39, 67 People v. Barnes (1986) 42 Cal.3d 284testeseseesesteseeneerseteseeseseanesenes30 People v. Beames (2007) 40 Cal.4th 907.0... csseessesseeesesessereesenereseeeeeseetteee 22, 23, 24 People v. Beardslee . (1991) 53 Cal.3d 68... cececessccstessececeeeeeneesneeeseseeneesssesseseesanessesigees 68 People v. Beeler . (1995) 9 Cal4th 953 ooo eeecsseseecenerseeteesseeessesenssesaessesseseseeesseneseeasas 22 People v. Bell (2007) 40 Cal.4th 582.0... cceescsnesneeecneesnsesasseeseeeseesssenecsessesenens 37 People v. Blakeley (2000) 23 Cal.4th 82.0... cccccesseereeneeeresseerseenerssesseesressrerssssersserseees 25 People v. Box (2000) 23 Cal.4th L1S3 eeceseessessecssesesseeseeeseenescseneesnsenseatenesenseneenneees 86 People v. Boyer (2006) 38 Cal.4th 412ieeeeceeneeeseeceeesseessseeserensssersaeeaes 29, 67 People v. Bradford (1997) 14 Cal.4th 1005 oo.cccecseeeneseeseneesenereeseneneeeesssesteeseeaeseeeees 85 People v. Bradford . (1997) 15 Cal.4th 1229eeeeeensecsecreensentesseceseerseesesseseeenes 57 People v. Brady . (2010) SO Cal.4th 547... ccccccsessessseesesescrscsssteeserssssrssneeesesnesses 78 People v. Bunyard . (2009) 45 Cal4th 836.0... eceseessersecnsesseesesesesseesessseesaeesensenseeseres 84 People v. Burney (2009) 47 Cal.4th 203.0... ceceeeseeeeeeseseeneeeeneenteneenensensaeeneenenens 47, 85 vi People v. Cain (1995) 10 Cal.4th Lonccccesesscscscsscssevscnereeeseansasetaeeeseeseeeseeees 70 People v. Carasi (2008) 44 Cal.4th 1263 oo ccccccccsessssssssssssscssrsesesestscevsrevsesesscaesesees 38 People v. Carpenter (1997) 15 Cal.4th 312.ccccccsesscssssscsssessssessesssnsestscetsvavavaesiassesens 30 People v. Carrasco (2008) 163 Cal.App.4th 978 0... ecsccsessesccsecsesssessessesvscsrssssseseseveeses 74 People v. Cash (2002) 28 Cal.4th 703 .....ccccccccssesescsssssscsecssevsssretsrcecssacscavateesseseesesees 4] People v. Catlin . (2001) 26 Cal.4th 81 oo ccccsscsecseessscscsscsescsvsrsssassvacecsessasseaeveeass 86 People v. Champion (1995) 9Cal.4th 879.sesseeseessssesssesesseessessssesesnesscssesessessreseraee 30 People v. Chatman (2006) 38 Cal.4th BAiceeeeseesntectesteeseeseessesecssssstsatenssueeaeeaseeens 57, 80 People v. Cook (2007) 40 Cal.4th 1334... cccccccccssscecsssscssssssvecerersecscssssssscatessscasesevees 31 People v. Coombs (2004) 34 Cal.4th 821 occcccccccssssssssstssesssestsestssessareeeestetttteneeeeaees 80 People v. Cox — C991) 53 Cal.3d 618occeccccsssessescscssessescsssstsvsvesvavseceseceusneseesvevecess 66 People v. Crew . (2003) 31 Cal.4th 822.0... cccccccsescssssssssscscesecssstsesssesesscsesvsescevevees 80 People v. Cuevas (1995) 12 Cal.4th 252... ccccccesssescssessscsesssecesassrststesesasssesveveseswee 29 People v. Cunningham (2001) 25 Cal.4th 926.0... cccessessesesessesesscscsscsesesasseseessecsesetacssesavers 86 People v. Davenport (1995) 11 Cab.4th L171 cccccccsssscscsssssssstscscsscssscscssscseescsesessseceees 80 vii People v. Davis (2009) 46 Cal.4th 539...seceacseeseensesaeneciesseeseesaeseesesaeeeeeaeratentees 76- People v. Daya (1994) 29 Cal.App.4th 697 oo... ecceeneeesceetenessaeeesuecssceateeeseeneetsatens 79 People v. Demetrulias (2006) 39 Cal.4th Lincecccsssesseneeseseceesereeesesnseerssaseeseeeeratiens OO People v. DeSantis _ (1992) 2 Cal.4th 1198...ccecccsseeeteeceees sevaeeeecetaeeeeaners: 69, 70 People v. Diaz (1992) 3 Cal4th 495 ooo ccscssesessesssessesesesesecssccsesseeeceeeeseeaeees 30, 34 People v. Doolin (2009) 45 Cal.4th 390.00.ce eecsssessscsessesestessseessesesseseesessseeessees 22, 66 People v. Duncan © (1991) 53 Cal.3d 955 oo ecisecssecsetsessessssssssseesesseeeesseeeeeseeseaeeaeeeeeenens 79 People v. Earp (1999) 20 Cal.4th 826.0. ceeseeesesseesseecsscseeseseeeeetsessessessesees 76, 79 People v. Elam (2001) 91 Cal.App.4th 298 oo. scsecesessessssssssscssssseseeessseseseseeeees 77 People v. Engelman oo (2002) 28 Cal.4th 436.00... cccscccssescsseseesesessecsseessessessecseseees Leesteseeeaes 77 People v. Flynn (1963) 217 Cal.App.2d 289 oo. cccccccsscseseessessessssessesssscssceseessessevesses 73 People v. Frye (1998) 18 Cal4th 894eeeseseeesnerescetsnerereaeeeesue 22, 23, 56 Peoplev. Garceau (1993) 6 Cal.4th 140... ecccsseesessesecsevesseeseseessceecsesscsscesssesesensenses 43 People v. Gay (2008) 42 Cal.4th 1195...Leceeeeseeesevseesaneeeesaeetesseeeseeeeseneesaes 72 People v. Ghent (1987) 43 Cal.3d 739 ...cccccccessesensssessseresseneeeeeeeseesneessaeasisaeenaneeess 79. vill People v. Gonzalez (2006) 38 Cal4th 932... ccscssscscsescscsesssseessssesvscscacsssensseressvateveeeeees 30 People v. Gray (2005) 37 Cal.4th 168... cceccesescssssesesescssesssesesssescssssssssnsescssreveneees 67. People v. Griffin | (2004) 33 Cal4th 536... .ccceccscccseecssssescscsssscssscssnscesseesteeers 37, 40, 80 People v. Gurule - (2002) 28 Cal.4th 557. ccccccccccscssssscssscsssscsscecsasevesseasssavavevacevsnseavaen 78 People v. Gutierrez (2009) 45 Cal.4th 789... ccscccccsesessscsescsssessscscssssscsvsessesssensesesecatersers 85 People v. Hamilton (2009) 45 Cal4th 8630. ccccccsssesscssescscsscscseevsssesesarsereeens 67, 83, 84 People v. Harris (2005) 37 Cal.4th 547.0...cesecesneeeneeeeeseeseesaresseesseeenerenes 67 People v. Hartsch (2010) 49 Cal.4th 472 oo. cccccsesesesesesssescscscssrsescseersvens 48, 57, 58, 67 People v. Hawkins (1995) 10 Cal.4th 920.0... ccccsscscecscscsssscssececsesesvevscsstsesrevesansesees 25, 71 People v. Holt . (1997) 15 Cal.4th 619occccccccccsccsscscssessessssssssvssecseseacestevsesesnsveneens 85 People v. Howard (1992) 1 Cal.4th 1132.00.00.seseeesseeeeseeceseeeesseseseceueeeessessteeessenees 22, 23 People v. Howard (2008) 42 Cal.4th 1000...seseeeceusaeeusscssaeensesaeersaeeseesseessgecaeesateees 38 People v. Huggins (2006) 38 Cal.4th 175 oi... cecceccesscssesessessscsessssssvscsssecereeseseeceers 39, 67 People v. Jackson (2009) 45 Cal.4th 662 ....ccccccccscssscssssscesssscsersscssevevscscssstssvavavsesvavees 22 People v. Jenkins (2000) 22 Cal.4th 900... ccscccsccscssssssscssssecscscecsescssssstecsvaavavanees 22, 37 1X People v. Jennings (2010) 50 Cal.4th 616...ceeseesenseneeeenseeesreneeeensheeeeeeeneaes 67, 71 People v. Johnson (1993) 6 Cal4th 1...escseeenens veeaseseeeaeeaeesececeeesetsnseaeeneseneraeeneees 80 People v. Johnson (2003) 30 Cal.4th 1302cccecescsesseceeesesssseceeesesessesseesessesarsaeees 37 People v. Jones (1990) 51 Cal.3d 294.0. cceceeseeteeeesseseeeseeeaceveaeesnaeecaseaeeessenaeeeaes 27 People v. Jones | (2003) 30 Cal.4th 1084... scesesssesseessesenesesnseeesnssssenerteenseneeneeens 79 People v. Jordan (1986) 42 Cal.3d 308... eecececsessessesstssseesesenesseenesssneesnenesssessteansenensy 56 People v. Lancaster (2007) 41 Cal.4th 50... ccccccessessecsessesecseeseseecsscssececsseseesessesees 39, 42 People v. Ledesma (2006) 39 Cal.4th 641]occesseneeseessensesesseeseseesetseetaetesseeees 39, 42 People v. Lee (2011) 51 Cal.4th 620...eeeseveetasesseecaeeraresteetatessnesensteneed 48 People v, Lessard (1962) 58 Cal.2d 447 occceccsccstescsscssesessessessesssetsesssseceseressseesessenees 73 People v. Lewis (2001) 26 Cal.4th 334000. cccccssccsscssessesesssesessessessecnsceeseeseeeeens 30, 34 People v. Lewis (2006) 39 Cal.4th 970.0... .ccecccccscssssessssessecssescssecesensessessesseeneeeeseneeees 56 People v, Lewis (2008) 43 Cal.4th 415oiccccecsecesenssecsessseseeeseeseneespeevaeeeseeateneee 39 People v. Lewis (2009) 46 Cal.4th 1255oeeccssscsscscesesseesesssesscseeseseesetseeceesnsenens 22 People v, Loker (2008) 44 Cal.4th 691] oo. ccccssescesesessesscssessssscsscsesseessesesssesseeseeseeas 81 People v. Lomax (2010) 49 Cal4th 530... ccccscsccessesesveeseees seseeeeteaeesenenettaeenseseeeee 43 People v. Martinez © (2010) 47 Cal.4th 911 cccccceececscscesescsscsescssesverseseeaees 83, 84, 85, 86 People v.Maury (2003) 30 Cal.4th 3420. ccccccecscecsssssssssssnscseeseesrereees 27, 29, 32, 80 People v. McGhee (1987) 193 Cal.App.3d 1333 ..cccccccccsscsssssssscssssseessesssececsessesesveseeess 42 People v. Moon (2005) 37 Cal.4th Lo.seusaneverseasseeeaneesneesneeseeeesseeeeseseens 47, 79, 80 People v. Morris . (1991) 53 Cal.3d 152. cccccscssccsssesescsessssssscsessssecsssssrsstecresssatsvsteassesees 60 People v. Musselwhite (1998) 17 Cal.4th 1216...cecebeteseeseeeseaeeeseasesneeeessesentess 79 People v. Ochoa (1993) 6 Cal.4th 1199...ccccecsctcscesscseseeeeesheseveeeseaeeeesanennes eee 27 People v. Ochoa . (2003) 26 Cal4th 398 oo. eccccccccccssecscsssscsssssscsssceesceretstsesesasecseas 80, 86 . People v. Osband (1996) 13 Cal4th 622... cccceceseeesteeesseeees eeeoeeseteveneeseesesesenees 57 People v. Panah . (2005) 35 Cal4th 395 oo cccccsscsssssscscessssevecssstssssessessacseaveseeves 67, 85 People v. Partida (2005) 37 Cal.4th 428 ooo. eecccsesssssessssscscsessesscevsesesacacsesseseatsreaveens 55 People v. Perry 7 (2006) 38 Cal4th 302.0...seheeeseeeseeeneeetaeeseeesenaees 79, 80, 83 People v. Pollock (2004) 32 Cal.4th 1153.0,seaeeesusceceaeceeecaeeacessseteseecseseueenasestes 55 People v. Price (1991) 1 Cal.4th B24 vo eeseessteseeseesteseenesecsssssssseesssstsseeseeesatsatsnesseaeneesess 56 x1 People v. Pride (1992) 3 Cal.4th 195 oo cccccccscscsescsssesssssssssscsscssavscsevevacsescasseerevans 41 People v. Prieto (2003) 30 Cal.4th 226 .....cccccccscssssssssscsssscsssssssstsecsscsesesecsesecavsesecscees 68 People v. Prince (2007) 40 Cal.4th 1179... cccccscsesescscssecssscscscscsvecsvsvevscecavavstevavevenees 27 People v. Riggs (2008) 44 Cal.4th 248.0.weeeaeeaeeneesescnssesesssccsesaeeeseersetieseaesarenss 85 People v. Robinson (2005) 37 Cal.4th 592 oo. ccceccsssesscesescscscsescssscssevsvsvatseserseearaeees 65, 66 People v. Rodrigues (1994) 8 Cal.4th 1060.0...eeLeseaseeseeseessetae eeneeteeteeeaeeaeeenees 67 People v. Rodriguez : (1999) 76 Cal.App.4th 1093... .ccccccescsescscscsssssscscscssscscsvsscassestsneasens 40 People v. Rogers (2006) 39 Cal4th 826.0... cccecccccsscscsesesssssesecssssssessssesestatsvereeees 80, 81 People v. Rogers (2009) 46 Cal.4th 1136.0... ccccscccscetsesvscssscssscscscsssvscsesesrsaceeacaverens 79 People v. Saille oe (1991) 54 Cal.3d 1103 occcccccsccssscsssssscessssesessesseseerseresseeeeeeneestens 71 People v. Salcido (2008) 44 Cal.4th 93 ooo. ccscccccsesesescseseecssssseseevsvevacavassesessassvavavacavens 80 People v. Samoyoa (1997) 15 Cal.4th 795 ooo ccccccescsscscscsssessessssscscacsssesssasevsteeseeeeesseers 85 People v. Sanchez (1995) 12 Cab.4th dans ccecccccsesescsescssssecsessssscscscscssseeseenssnsaseeseeens 83 People v. Sanchez (2001) 26 Cal.4th 834.0. ccsccescssssssscsrscssscscssevscsseceeeeseassessscaeess 75 People v. Seaton (2001) 26 Cal.4th 598 ooo. ccccscccscscssscscescscssssscssssvevsetstscavssscseerenens 86 XU People v. Smith (2005) 37 Cal4th 733 0... cceccsccscssesssesnsscsesessssessesessesescsesersecaceneesssaes 27 People v. Smith (2006) 35 Cal.4th 334.0... ceccssescesessssesssssssssessssesseststsesstsessesssvavecaees 80 Peoplev. Smithey (1999) 20 Cal.4th 936... ccecssscecsssssssessscssssssesstevseesststssesetstsaseneeses 68 People v. Snow (2003) 30 Cal4th 43 oo... ccccccscscsssssssscssavsesesessesesescevscasavavsvavaeavesies 85 People v. Stansbury (1995) 9 Cal4th 824.00.ceceseeseveeeecaeesessaeeesaeseaesteseeneeeeeses 60 People v. Stevens (2007) 41 Cal.4th 182... eccccccsssscsssscsecscsscsstssesevsssecsecseccessescesce. 81 People v. Superior Court (Thomas) (1967) 67 Cal.2d 929 oo ccccccccssssssscssssssscssstsessessesasssatssstasseassesveceves 74 People v. Taylor | (2010) 48 Cal4th 574...cecsestcesessescsestsssscacsessssecseseevenes passim People v. Thomas (2011) 51 Cal.4th 449oiccccsesseesesssesscsessuesseecsrsstestearsaveaveseaess 79 People v. Thompson | (1988) 45 Cal.3d 86...ccsseeseneseaeaeaeseaeseseseeaenenes 60, 66 People v. Thompson (1990) 50 Cal.3d 134. cccccccccscssssssssecsvssssscsesessescssssacavsesssseeves 71,78 People v. Thornton —| (1984) 155 Cal.App.3d 845... ccccssccsesssssssessesstessecsescsrsecsressees 74, 75 People v. Turner (1994) 8 Cal4th 137, overruled oo... ccccccccsssscscsecescesscecsvececcesvereesces 40 People v. Valdez (2004) 32 Cal4th 73... .ccsccccccscsssescsssssscesssscsrsssstevassvseessssestesseeesee: 67 People v. Vines (2011) 51 Cal.4th 830... cccccccscsscsesscsscstssssessecseseteteresesssateseessavevees 42 xii People v. Virgil (2011) 51 Cab.4th 1210... ceeeseesssesssesesesesesessssssseesscscsssessesens 68 People v. Ward . (2005) 36 Cal4th 186.0... cccscsssssscssssesssescssseseesessessesssessesvececavesesvans 67 People v. Watson (1956) 46 Cal.2d 818oecesesesesssssscsessesscsvscsescssscssestavsssenes 25, 49, 76 People v. Watson 2008) 43 Cal.4th 652.0... ecccescccsessesesscsesesessdsscssssstessasanseeens 76, 83, 84( People v. Wattier (1996) 51 Cal.App.4th 948occssesscssssssssesessssscsesesessscstsecssseseens 74 People v. Welch 1999) 20 Cal4th 701oeeecessssesssssscssscseeeseseseesevscauscseessesseas 76, 83( People v. Wheeler . (1978) 22 Cal.3d 258 oo. eecccesesesssescsssecscssscssessevscsvsensaeees 34, 36, 37, 74 People v. Williams (1997) 16 Cal4th 153coerssesaceaeeeeseeserseeaeetageatiesenenss 55 People v. Williams (2006) 40 Cal.4th 287 ooo. eeeseseesssesessesessssesessesesscesseecsensesseaeenees 44 People v. Williams (2010) 49 Cal.4th 405... cccccesscsesscsssscecssesssecsnssssucarsasstsrssesncaens 73, 84 People v. Willis © (2002) 27 Cal4th 811 ccccecescscscecsssssescscsescscscscerscseecetsvecesasareceeeees 37 People v. Wilson (2008) 44 Cal.4th 758........... seeeveneeenseuasesseeeseeenaesonseaseneesseeeeaseestoasenens 78 People v. Wright (1988) 45 Cal.3d 1126... cccsccssscsssssesssecscssessssscetssaeeseseecacassees 48, 49 People v. Wright (1990) 52 Cal.3d 367 oo. eeccccssescsesesssssssscssscssssscsssceccseseceseetersasersees 73 People v. Yeoman . (2003) 31 Cal-4th 93occccecssscessccsscccsecsscecsseceascareesesseeseesereee D4, 43 XIV People v. Young (2005) 34 Cal.4th 1149eceesescstesesescsssstsssessssssessssstseseeseesees 30 Ring v. Arizona (2002) 536 U.S. 584 [122 S.Ct. 2428, 153 L.Ed.2d 556]...cece 84 Sattazahn v. Pennsylvania . (2003) 537 U.S. 101 [123 S.Ct. 732, 154 L.Ed.2d 588]...eee 78 Tuilaepa v. California (1994) 512 U.S. 967 [114 S.Ct. 2630, 129 L.Ed.2d 750]...cece. 68 _ United States v. Booker . (2005) 543 U.S. 220 [125 S.Ct. 738, 160 L.Ed.2d 621]... 84 STATUTES Pen. Code § 187, SUDA. (8)... ceecccccssccsccscsscsscseccscevsesuscessacssucsscseesaccsscsussesusene 1 § 190.2, subd. (€)(3) ...eeceeseesesseees vesceereaeeseesaeceaeereseeeseaseatesssensanes 1 § 190.3 oeecsteteesseseesseeeseeseeneseesnesseeaseseavesessassessueesssneansaseans passim § 190.3, SUD. (8) occ cscescesssssscescsecsscscsssecssecstsssacsessesaesaecacenseucsesans 72 § 190.4, Subd. (B)eeeecssssesesssesesesecscssesesssscsrscacesscsvecuevaverevsvaeens 78 § 664 occcccsseeeeeenseseseescssnessesssevepecsesessesvecsevsssuessusvsvssssvavavasessasaesaeas l § 667 (a)(1), (b)-(i) «wetessa eeansanaesecseonenenenteaeessessenssersestensanseeseeses 1 § 667.5, subd.(b).........Lasasecesosseeeseeatseaeeeateeessneeenseasseeeeeeeeesetessessetaeeneees 1 § 1050, SUDA. (6) ..eceeeesccsesessssesessesscssesesessessessscsteacsusessrsasststeeteesseeeten 22 8 L188 oeeeeccseeseeeesseceesseesseceessetersststsssaseavees deseneeeesaesetesseseesens 68 § 1163cesseseeeetspesesesssssssesesesesevscssesecseucessssssesesesvevavevavers 74, 75 § 1170.12, subds.(a)-O ” § 1203.06, subd. (a)(1) «0...seaeeateaeseseceaecssssesesesseeteesessesecatenssenes 1 § 1239, subd.(b)......eeeseeeeeseasesseeseeseeeneateaeceaesseeateatensesseeeneaenas 2 § 1259 Llceeeeteeteeeesceseaeecaeevsuseecsesseeceaseserseeeesscaeevseseesensesssecstsessaass 48 § 12022.5, SUB. (8) oo. ecccccssesssescseeseestsseecscssscstscsrstersaseeececavscetstacaeans 1 § 12022.5, SUDA. (D)(2) oo. eecsceccsesssessssesssssscsscscsvscseecesecaceseasetstacsesesenes l § 12022.7, SUDA.(8)ee eececsssesescsesesessesssssscsscacsvscscsessevscecssvssesavaassens 1 CONSTITUTIONAL PROVISIONS Cal. Const., Article I, § 16 .ecccccsssssssesssssssessssssssesesssssessssssesersssusessanseses 74 Equal Protection Clause of the United States Constitution ..........ccc000. 83 U.S. Const. Eighth Amend...ce cciccccsscsscssecccsessecssesseeserecens 78, 81, 82 XV OTHER AUTHORITIES CALJIC . NO. 1.00 oo eeeceeccscseessesscesesecseesecsessesseesessucsessussusseveusacesessvaseaseaavaaeeeves 57 1 Leeeecssesecesssnecseeseesesatessenaeeeeaes passim NO, 8.85 Loci eeesesesssscssssssesscsscssecsecssessecssevecesseseessscessvaeenaeeasens 66, 68, 79 NO. 8.88 voc eeccecssscessecssessessesserseeessssscsseeesseetesetasesateresecteesseesssseeses 19, BO NO. U74D ecceecseseseseesessseeseseeeessseesesesnsseacarencateneacaceetacantasneaeenees 77, 78 XVi STATEMENT OF THE CASE In an amendedinformationfiled by the Los Angeles County District Attorney, appellant was charged with two counts of murder(counts 1, 3; Pen. Code,’ § 187, subd. (a)), and two counts of attempted willful, deliberate, and premeditated murder (counts2,4; §§ 187, subd. (a), 664). ‘The special circumstance of multiple murder was alleged (§ 190.2, subd. (a)(3)). As to counts 1 and2,it was alleged that in the commission ofthe offenses, appellant personally used an assault rifle (§ 12022.5,subd. (b)(2)). As to counts 3 and4,it wasalleged that in the commission ofthe offenses, appellant personally used a firearm (§§ 1203.06, subd.(a)(1), 12022.5, subd. (a)). As to count 4, it was further alleged that in the commission of the offense, appellant personally inflicted great bodily injury — (§ 12022.7, subd. (a)). As to all counts, it was further alleged that appellant had oneprior conviction for a seriousor violent felony (§§ 667, (a)(1), (b)- (i), 1170.12, subds. (a)-(d)), and one prior conviction for which a prison term wasserved (§ 667.5, subd. (b)). (2CT 450-454.) Appellant pleaded not guilty and denied the allegations. (2RT 122, 138-139.) Appellant wastried by jury. (2CT 456-457.) The jury found appellant guilty as charged and foundthe special allegationsto betrue. (2CT 478-482.) The same jury was unable to reach a verdict duringthe first penalty phase, andthetrial court declared a mistrial. (2CT 595.) A second jury was impaneled. (10CT 2823.) After the penalty phaseretrial, the jury reached a verdict of death. (10CT 2888.) Appellant’s motions for a newtrial and to modify the death verdict were denied. (20CT 5643-5653, 5657.) On counts 1 and3, appellant was ' All further statutory referencesare to the Penal Code, unless otherwise noted. sentenced to death. On count 2, appellant was sentencedto life in prison _ with the possibility of parole plus six years, which was stayed. On count 4, appellant was sentencedto life in prison with the possibility of parole plus seven years, which was also stayed. (20CT 5654-5656.) This appeal from the judgmentof death is automatic. (§ 1239, subd. (b).) STATEMENTOF FACTS ~y, GUILT PHASE A. Prosecution 1. Murder of Amarilis Vasquez and Attempted Murder of Carlos Mendez On September24, 1996, Carlos Mendez andhis wife, Amarilis Vasquez, were working together'at Kirk. Plastics. They worked in the same shift from 3:00 p.m. to 12:00 a.m. (3RT 461.) At approximately 8:00 p.m., Mendez and Vasquez took their usual lunch break and wentto a Mexican ~ fast-food restaurantcalled Tacos El Unico located at 1521 South Long Beach Boulevard near the intersection with Glencoe Street in Compton. (3RT 450-451, 462.) They droveto the restaurantin their brand new — Toyota Tacomapickuptruck. (3RT 462.) After parking the truck in stall, Mendez and Vasquez walkedto the taco stand window,ordered some food to go, and returnedto their truck. (3RT 462-463.) _ Mendezenteredthetruck first and reachedoverto open the doorfor his wife. (3RT 463.) Vasquez entered the truck and Mendez was about to start the engine when Vasquez saw a manhelateridentified as appellant. Vasquez said in Spanish, “Look, that guy, ... he has a... pistolf,] a big pistol.” BRT 464.) When Mendezlooked up, he saw appellant with a pistol in his hand walking from the corner towardthe truck. (3RT 464-465, 468.) Mendez had never seen appellant before. (3RT 479, 490.) He described the gunmanattrial as an African-American man, having a shaved bald head and a “5 o’clock shadow”orlight beard, and wearinga blackt- shirt.? (3RT 490-491, 495-497.) Appellant had a finger on the trigger and the gun was pointed down toward the ground. Mendez described the weaponas a pistol approximately 12 inches longand that it was a handgun instead of rifle. (3RT 469, 488-489.) . Mendeztried to calm his wife by saying, “Don’t worry. We’ll just leave.” (3RT 470.) As Mendezstarted the truck, appellant pointed his gun toward Mendez and Vasquez,stoodstill “for seconds,” and then began shooting. (3RT 470-471.) Appellant was standing approximately 22 feet away from the truck. (3RT 476-477.) Mendez held up his hand andtried to say, “Don’t shoot.” (3RT 471.) Vasquez wasshot first and Mendez was shot in the right cheek. (3RT 473.) The shotto the face broke Mendez’s jaw and knockedout several teeth. (3RT 492.) After getting shot in the face, Mendez openedthe doorofthe truck. (3RT 473-474.) As he was getting outside, Mendez was shotin his left thigh. (3RT 474.) Mendez believed he was“close to death”so he forgot about his wife and tried to run awayto get some help. (3RT 474-475.) He was screamingfor help but everyone was hiding. Mendez rememberedthat his wife wasstill in the truck so he returned to the passenger side. (3RT 475.) Bythis time, the shooting had stopped and appellant appeared to have run away. Mendez saw his wife bleeding from her head and he believed she was dead. (3RT 476.) | * Duringthe preliminary hearing, Mendeztestified that appellant was wearing a white shirt at the time of the shooting. ($RT 491.) Attrial, Mendez explained that he was not paying attention to appellant’s clothing because he wasafraid butthat he did see appellant’s face and the gun. (3RT 492, 497.) Officer James Lewis of the Compton Police Department testified that shortly after the shooting before the paramedicsarrived, Mendez told him that the shooter was wearing a black jacket. (3RT 501.) Officer Robert Childs responded to Tacos El Unico. (3RT 450-451 ) Officer Childs arrivedat the parking lot and found a new tan-colored Toyota pickup truck. He observed a Hispanic man,later identified as Mendez, with blood on his face and who appearedto behysterical. (3RT 451.) Mendez had beenshotin the right cheek and thigh. (3RT 452, 458.) A womanonthe passenger seat, later determined to be Mendez’s wife, had been shot twice in the head. (3RT 451.) The passenger window, which wasrolled up, was shattered and had a hole in the middle. (3RT 451-453.) Officer Childs found shell casings on the groundnearthe front right side ofthe truck.? Although it was nighttime,the street lights were on and . the parking lot was “reasonably welllit.” (3RT 452.) Officer Childs estimated that the distance from the truck’s location to the comerofthe parking lot was approximately 22 feet. (3RT 456.) The distance from the truck to the far north side of the parking lot near the Zodiac Motorcycle Club was approximately 50 to 60 feet. (3RT 458.) Detective Paiz wentto the scene to conduct the homicide investigation. (3RT 506.) By the timehe arrived, Officer Childs had already cordonedoff the scene andthe shell casings had been identified with evidence cards. (3RT 505-506.) Later in the evening, Detective Paiz wentto the hospital to interview Mendez whohadreceived sometreatment for his injuries but wasstill upset and crying. (3RT 503.) During the interview, Mendez described the shooter as being approximatelyfive feet eight inchesto five feet eleven inches tall, 20 to 25 years of age, clean * Detective MichaelPaiztestified that as a generalrule, semiautomatic firearms expel the expended cartridges up towardsthe right and slightly backwards. (3RT 532.) shaven with short black hair, and wearing black jacket and pants.* (3RT 494, 505.) Between September 1996 and January 1997, Detective Paiz obtained appellant’s nameas a possible suspect. (3RT 506.) On January 30, 1997, Detective Paiz met with Mendezatthe police station and conducted a photographic lineup which included appellant’s photograph.” (3RT 479, 483, 506.) After being admonished and “within seconds,” Mendez selected appellant’s picture as that of the shooter. (3RT 480-481, 507.) On July 14, 1998, Detective Paiz again met with Mendez and conducted a live lineup at the county jail. (3RT 481, 484.) Mendezselected appellant“really fast” as the shooter. GRT 481-482, 484.) Dr. Ogbonna Chinwah, a deputy medical examiner for the Los Angeles County, reviewedthe autopsy report of Vasquez, which was prepared by another deputy medical examiner. Based on the autopsy report, Dr. Chinwah opined that Vasquez’s cause of death was a gunshot woundto the head. (3RT 544.) * While at the hospital, Mendez spoke with anotherpolice officer and described the shooteras “a male Black adult, 25 years old, wearing black pants and a black jacket, clean shaven, with short hair, 5711”, 150 to 180 pounds, medium complexion.” (RT 581-582.) During cross- examination, Mendez gave anadditional description ofthe shooter, describing him asbeing five feet eleven inchestall, weighing between 150 to 180 pounds, and havinga bald head. Mendez explained that by “bald,” he meantthe shooter had a head “like... when somebodyis shaving... .” (3RT 494.) During re-direct, Mendez further explained that the shooter was “bald shaved,”not naturally bald. (3RT 497.) > The photographic lineup was introducedattrial as People’s Exhibit No. 8. (3RT 479-480.) 2. Murder of Paul Moreland and Attempted Murder of Roy Fradiue On November22, 1996, at approximately 5:00 p.m., Roy Fradiue® and Paul Moreland metat Fradiue’s uncle’s house located at 2527 Pearl Street in Compton. (3RT 372-373.) Fradiue and Moreland had “a few” drinks before leaving to go to a store on Long Beach Boulevard.’ (3RT 373-374.) a At approximately 11:00 p.m. to 11:30 p.m., Fradiue and Moreland briefly stopped bya friend’s house on Pearl Street regarding some plumbing work. (3RT 374.) After leaving the friend’s house, Fradiue and - Moreland were walking on Glencoe Street when Fradiue saw a manhelater identified as appellant standing in a fenced front yard of a duplex with several other people.® (3RT 375, 390.) Appellant was holdinga rifle on his shoulder and he wasthe only person in the group holding a gun orrifle. (3RT 376-377, 384, 391.) Fradiue had never seen appellant before that day and did notrecognize any of the other men. (3RT 375, 391.) Fradiue | described appellant as a Black man with a“real short” hair. (RT 393-394.) Although it was dark outside, there wasa light standard one house away from the duplex where appellant wasstanding and anotherlight standard acrossthestreet. (3RT 394-396.) | Appellant said something to Moreland to which he responded, “That’s all right.” (3RT 377.) As Fradiue and Moreland continued to walk, ° On cross-examination, Fradiue admitted that he had one prior conviction for assault with a firearm and another conviction for theft. (3RT 400-401.) : 7On cross-examination, Fradiue stated that he “somewhat”felt the effects of the alcohol and that he had smoked “a little” weed that evening. (3RT 399.) . ® Fradiue initially stated that he could not be specific about how many people were standing in the yard with appellant but later testified that there were approximately 10 men. (3RT 375,390.) appellantfirst fired a shot into the air and then began shooting at Moreland and Fradiue. (3RT 377-378.) When thefirst shot was fired, Fradiue and Moreland were approximately one house down from the duplex where appellant had been standing. (3RT 379.) | Fradiue ran across the street diagonally toward the corner, heading down Temple Street toward Greenleaf. Moreland ran the other way. (3RT 378-380.) Fradiue did not turn around to see what had happened to Moreland.” As Fradiue turned the corner, a bullet hit a pole. Approximately three to four minutes later, Fradiue heard additional three to . four shots. (3RT 381.) Fradiue ran all theway to Long Beach and Artesia where a friend gave him a ride backto his uncle’s house. (3RT 378, 399.) Fradiue did not return to the shooting scene that evening. He never again saw Morelandalive after the shooting incident. (RT 382.) Fradiue did not contact the police about the shooting because he did not know whether Moreland had been killed. (3RT 400.) Ronald Darby was watchingtelevision with his family in his house located near the intersection of Glencoe and Temple whenhe heard approximately three to four shots. (3RT 522-523.) After a brief silence, Darby heard another round of three to four shots.!° Darby eventually went outside and saw a commotion about someonelaid out on a driveway. (3RT 523.) ” During cross-examination, Fradiue stated that he did not see appellant shoot Moreland but that he only saw appellant holding a gun. (3RT 392.) '® Darbytestified at trial that the second roundof shots occurred approximately five to ten secondsafterthe initial shots. (RT 523.) However, Darby admitted that after the shooting, he told one ofthe officers that the interval between the shots was approximately two to three minutes. (3RT 526.) At approximately 11:00 p.m., Officer George Betor received callto respond to the 1500 block of South Temple Street, located near the intersection of Temple and Glencoe. (3RT 348.) When Officer Betor arrived at the scene, he saw a body lyingon the driveway on the southwest corner of Glencoe and Temple Street. (3RT 349.) Officer Betor also found blood, bodily tissue and three expended 7.62 by 39 millimeter shell casings near the body. (3RT 352-353, 362.) Detective Marvin Branscomb responded to 1324 Glencoe for a possible homicide investigation. (3RT 404.) Detective Branscomb took pictures ofthe scene, collected the three expended shell casings, and booked them as evidenceat the police station. (3RT 405-406.) The shell casings were 7.62 by 37 millimeter in caliber, which was a type of round used in assault rifles. (3RT 407.) Detective Branscomb took photographs of blood splatter on the garage doorand trail of blood coming down from the victim’s body. (RT 591) No other blood or bodily fluid evidence was found. (RT 592.) Both Officer Betor and Detective Branscomb observedthatthere was a light standard on the east side of Temple Street, just south of the location where the body was found. (3RT 362-363, 408.) The body was located directly below a “welllit” security light on the driveway above the garage. (3RT 363-364, 408.) Detective Branscombalso noted that there wasa full moon andclear skies that evening. (3RT 408.) On November23, 1996, at approximately 10:00 p.m. to 10:30 p.m., Officer Marvin Pollard stopped appellant and another man named “I. Mc Laine” near 1315 East Glencoe which wasacrossthe street from where Moreland was shot. (3RT 358, 412-413, 416, 418.) Officer Pollard filled out a field interview (“F.I.”) card for appellant by using a California identification card. Officer Pollard also noted on the F.I. card a description of a tattoo on appellant’s left forearm. (3RT 414-415.) On the same evening,in an unrelated incident, Lieutenant Reginald Wright, Officer Betor and anotherofficer chased a suspect named Chico McLaineinto a house on GlencoeStreet, just northwest of the homicide location. (3RT 355-357, 365.) After detaining Mc Laine and another man inside the house, Officer Betor found an S.K.S.type ofrifle with a loaded 30-round magazine located inside a hallway closet. (3RT 357-358, 367.) Healso found another loaded magazine with 12 live roundsinside. (3RT 361, 368-369.) Officer Betor noticed that the rifle used the same type of casings foundat the homicide scene acrossthestreet on the previous evening. (3RT 358.) In April 1997, Detective Paiz contacted Fradiue at his grandmother’s house in Bellflower. (3RT 392, 513-514.) Fradiue could not give a description of the shooter because his “mind was [] blurry’at the time. (RT 392.) On April 18, 1997, Fradiue met with Detective Paiz at the Compton Police Station for a photographic lineup.'’ (3RT 383-385, 509, 51 1.) After studying the pictures “fora little while,” Fradiue selected appellant’s picture as depicting the manwhohad shot at him and Moreland.'” (3RT 385-386, 510.) Appellant’s photograph wasthe only onethat depicted a person with short hair while the remaining pictures depicted men with longer hair. (3RT 393.) Appellant was arrested on April 25, 1997. (3RT 513.) '! The photographic lineup shownto Fradiue was the same one shown to Mendez, which was markedat trial as People’s Exhibit No.8. (3RT 385-386.) '* Attrial, Fradiue testified that it took him approximately 10 minutes to pick the shooter’s picture. (3RT 386.) However, Detective Paiz testified that it took Fradiue approximately 10 seconds to makehis selection andstated that the entire interview lasted less than 10 minutes. (3RT 510.) 4 q Approximately one year later, Fradiue participated in a live lineup conductedat the county jail. (3RT 387, 511.) It took Fradiue “[nJot even two seconds”to select appellant as the shooter. (3RT 388-389.) Dale Higashi, a senior criminalist with the Los Angeles County Sheriff's Department (“LASD”), examinedtherifle and the magazine recovered by Officer Betor. (3RT 439.) The serial numberon the rifle appeared to have been “attacked”or groundoff. After chemically restoring the area, Higashi determined thatthe rifle’s serial number was 03882. (3RT 439-440.) Higashi test-fired the weapon and foundit to be functional. The magazine held 30 rounds. Higashi opined that the rifle was considered to be an assault weapon becauseofthe detachable magazine. (3RT 440.) ~ Higashi also examined the three expended shell casings recovered from the scene and compared them with thetest-fired rounds from therifle. (3RT 440-441.) He opined that twoofthe shell casings were positively identified as having beenfired from the rifle while the third shell casing had marks consistent with having been manually inserted into the chamber and then extracted. (3RT 441.) After examining the bullet fragments received from the Coroner’s Office and comparing them to the casings recovered at the scene, Higashi opinedthat the test results were inconclusive because the fragments did not have sufficient individual characteristics to positively identify them as having been fired from the rifle. (3RT 441-442.) However, Higashi added that the bullet fragments could have beenfired from the rifle. (3RT 442.) Fred Roberts, an LASDforensic identifications specialist, examined the rifle and its magazine for fingerprints. (RT 445.) Noprints were recovered. (3RT 445-446.) Roberts stated that on average, the fingerprint evidence is found on a firearm only in approximately six to eight percent of the cases. (3RT 446, 448-449.) 10 Duringtrial, Detective Paiz returned to the shooting scene and located a bullet hole on a no parking sign on the westside of Temple, south of Glencoe. (3RT 532-533.) Based on the metal shapeof the sign post, Detective Paiz opined that the bullet was traveling in a southwesterly direction. (3RT 533.) On November25, 2006, Dr. Chinwah conducted Moreland’s autopsy. (3RT 537-538.) He opined that the cause of death was multiple gunshot wounds. (3RT.378.) Dr. Chinwah found nine gunshot wounds on Moreland’s body. Thefirst bullet entered from the back ofthe left chest and exited through the right upper neck nearthe right ear. (3RT 539.) The second bullet went in the back of the left arm and continuedinto the chest area. (3RT 539-540.) The third bullet went in the back ofthe left forearm. The fourth bullet went into the abdomen andits fragmented parts became lodgedin the lower rib cage. Thefifth bullet went in the back ofthe right thigh and exited near the groin area. The sixth bullet went in the front of the right thigh and exited through the back. The seventh bullet went through the right front leg and cameout through the back. (3RT540.) The eighth bullet went in the innerleft leg, shattered the bone, and exited through the outer side. (3RT 540-541.) The ninth bullet went through the front side of the right hand and cameout through the back. (3RT 541.) A toxicology report showedthat Moreland hadalcohol, cocaine and phencyclidine or “P.C.P.”in his body at the time of his death. (3RT 546- 547.) B. Defense On the day of the Mendez/Vasquez shooting, Foster Slaughter and his fellow motorcycle club members were seated on their motorcycles near the Zodiac Club located north of Tacos El Unico. (3RT 565-569.) When the gunshots rang out, Slaughter and his club members rushedto get 1] everyone inside. (3RT 569.) Slaughter saw a “Spanish-American” man standing outside his truck and a gunman standing behind the truck shooting at him. (3RT 569-571.) The gunmanfired approximately three to four shots at the Hispanic man,ran overto the side of the truck, and shot into the truck twice. (3RT 573, 575-576, 579.) The gun appeared to be jammedat somepoint and the gunman escaped around the corner toward a street behind the restaurant. (3RT 573, 575-576.) The victim ran toward the phonebooth andtried to dial 911 without success. He yelled toward Slaughter andhis colleagues, asking them to call the police. (3RT 571.) Slaughter was standing approximately 50 feet away from the gunmanand could not recognize his face. (3RT 572.) Slaughter described the gunmanas a Black male, approximately five feet nine inchesto six feet tall, weighing between 190 and 200 pounds, having long hair, and wearing a black hat, beanie or cap, and a big black long coat. (3RT 573-574, 578.) Slaughter explainedthat the coat was a puffy jacket that fell just abovethe knee. He did not recall seeing a hood or any writing on the jacket. (3RT 576-577.) After observing appellantat trial, Slaughter stated, “[Appellant] don’t [sic] look like the one [who] wasthere. [The gunman] wasa little thicker than [appellant] in arm-wise.” (3RT 574.) C. Rebuttal Officer Kenneth Roller interviewed Slaughterat the scene ofthe shooting at Tacos El Unico. Slaughter described the gunman as a male Black adult, wearing a three-quarter length black jacket and dark jean pants. (3RT 584, 586.) There was no description given regarding the gunman having long hair or being bulky like a weightlifter. (@RT 586-588.) -12 Il. PENALTY PHASE” A. Prosecution Theparties stipulated that on September 15, 1992, appellant was convicted in case number TA015119 of attempted murderas an aider and abettor in a shooting occurring in 1991. (SRT 1116.) Appellant wentto prison on September 15, 1992, and wasreleased on parole on August3, 1996. (SRT 1098.) Appellant reported to the parole office on August 5, 1996. (SRT 1099.) 1. Murder of Vasquez and Attempted Murderof Mendez On September 24, 1996, Mendez and Vasquez drove together to workat Kirk Plastic Companyfortheir 3:30 p.m. shift. (SRT 1004-1005.) At approximately 8:00 p.m., Mendez and Vasquez took their lunch break and drove five minutes to a Mexican restaurant. (SRT 1005-1006.) Mendez parkedhis truck on the side of the restaurant’s window and together with his wife, walked up to the window to order somefoodto go. (SRT 1006.) After picking up the food, Mendez entered his truck through the driver’s side and opened thedoor for Vasquez. (SRT 1007.) While they were getting ready to leave, Vasquez told Mendez that there was a man with a gun. (SRT 1007, 1011.) Mendez looked up toward the passenger side and saw appellant walking towardhis wife, holding a black gun _ This penalty phase statement of facts summarizes the evidence presented at the penalty phaseretrial. The first penalty phase jury deadlocked sevento five in favor of life without the possibility of parole. (4RT 792, 796.) The penalty phaseretrial jury was presented with similar aggravating evidence previously presented during the guilt phasetrial, with the addition of appellant’s social history and the testimony of Joe Galindo regarding the Mendez/Vasquez shooting. (6RT 1127-1172.) 13 pointed to the ground. (SRT 1007-1011.) Mendez put up his hands in an attempt to stop appellant from shooting. (SRT 1012-1014.) Mendez heard several shots, one of which hit him on the right cheek. (SRT 1014-1015.) Mendez opened the door and while trying to comeoutof the truck, he was shot again in the left leg. (SRT 1016.) . Mendez screamedfor help but nobody came. (SRT 1017.) Realizing his wife wasstill in the truck, Mendez returned and saw Vasquez bleeding from the right side of her face. (SRT 1017-1019.) Officer Childs arrived at the scene at approximately 8:00 p.m. and saw Mendez running aroundthe truck screaming hysterically. (SRT 1030.) Officer Childs recovered nine shell casings outside of the truck near the passengerside. (SRT 1031-1032.) He also recovered two expended bullets, one of which was found behindthe benchseat of the truck. (SRT 1032.) Typically, a semiautomatic weapon will eject the shell casings up and to the right of the gun. (SRT 1033-1034.) At the time of Vasquez’s death, Mendez had been married to Vasquez for five months. They had been living together since 1993. (SRT 1004.) Mendez described that since Vasquez’s death,his life has been “really hard” because“it’s really hard to lose [the] one who[m] youlove,. . . especially when she . . . is killed [] this way.” (SRT 1020.) Mendez eventually remarried because hebelieved it would help him deal with the loss of his wife. (SRT 1020, 1028.) | Dr. James Ribe, a senior deputy medical examiner with the Los Angeles County Department:-of Coroner, testified about Vasquez’s autopsy. (SRT 1103-1104.) Vasquez’s autopsy report indicated that she died of a gunshot woundto her head.. The report also stated that the wound was caused by a gunshotentering the right front side of the head and coming out through the left rear side of the head. (SRT 1106.) The victim also had 14 pseudo-stippling around her wound whichweretiny abrasions caused by the glass fragments as the bullet struck the car window. (SRT 1106-1107.) 2. Murder of Moreland and Attempted Murderof Fradiue On November 22, 1996,at approximately 12:00 p.m., Fradiue and Moreland met up at Fradiue’s uncle’s house on Pearl Street. (SRT 1044.) They had “quite a few drinks” of Olde English 800 and Fradiue also smoked some marijuana. (SRT 1046.) At approximately 11:00 p.m., Fradiue and Morelandleft the house to go to a store located on Long Beach Boulevard. (SRT 1045, 1056.) While walking eastbound on Glencoe, Fradiue and Moreland saw a group of approximately 13 to 15 men standing in front of a duplex. (SRT 1045, 1047-1048.) Appellant was in the group holdinga rifle overhis shoulder. (SRT 1048-1049.) After appellant and Moreland exchanged some words, Fradiue heard a gunshotin the air. (SRT 1049-1050.) When Fradiue turned around, he saw appellant bringing the rifle down and shoot toward them. (SRT 1051.) Fradiue and Moreland began running in opposite directions. (SRT 1050.) Moreland was slumping downasif he had been hit. (SRT 1052.) As Fradiue was turning the corner, he heard a gunshot hit a pole near him. (SRT 1052-1053.) Fradiue ran southbound on Temple, hopped over a gate and ran through the apartmentsall the way to Artesia. He found a friend at the phone booth who gave him ride to his cousin’s house. (SRT 1053.) At approximately 11:00 p.m., Darby heard approximately four gunshots coming from the front of his house located near the intersection of Glencoe and Temple. (SRT 1037-1038.) There was a pause of approximately a minute or two before Darby heard additional three to four 15 gunshots. (SRT 1038, 1040.) When Darby wentoutside, he saw a person lying on the driveway with gunshot wounds. (SRT 1038-1039, 1041.) Officer Betor arrived at the corner of Glencoe and Temple shortly after 11:00 p.m. He saw a male Black victim lying on the driveway, propped up against the garage door, and with severallarge caliber bullet wounds to his body. There was blood around the body as well as blood and flesh particles splattered on the garage door. (SRT 1079.) The victim’s ankle was completely snapped and turned underhis body andhis feet were crossed. (SRT 1080.) Officer Betor discovered two expendedshell casings of 7.62 by 39 millimeter caliber at the crime scene. (SRT 1077.) This type of bullet iscompatible with the AK-47, S.K.S. rifle, and Ruger Mini-30. (SRT 1078.) On the following day, Officer Betor assisted Lieutenant Wright with a suspect chase into a duplex on Glencoe Street. (SRT 1080.) After detaining the suspect, Officer Betor found an S.K.S. rifle with a loaded magazine inside the duplex. (SRT 1082, 1084.) In May 1999, Detective Paiz went to the southwest corner of Glencoe and Temple and founda bullet hole in a no parking sign. (SRT 1066.) The bent metal appeared to show that the bullet was traveling in a southern direction whenit struck the sign. (SRT 1067.) Moreland’s autopsy report indicated that he died of multiple gunshot wounds. (SRT 1108.) Moreland suffered nine gunshot woundsto his back, neck, ear, arm, chest, forearm, abdomen,thigh, hip, leg, and hand. (SRT 1109-1111.) The toxicology report indicated the presence of P.C.P., cocaine and alcohol in Moreland’s system at the time of his death. (SRT 1112-1113.) Floyd Moreland is Moreland’s father. On the day ofthe shooting, Floyd Moreland wentto the crime sceneto identify his son’s body. (SRT 1070.) Moreland was38 years old when he waskilled. At the time ofhis 16 death, Moreland was working for his fatheras a plumber. Since his death, Floyd Moreland has been missing his son very muchandit has been difficult not having Moreland aroundto help him with work. (SRT 1071.) Moreland had twobrothers, two sisters, and one daughter who was 16 or 17 years old when he died, (SRT 1071-1072.) The daughter used to live with Moreland when she was younger but now lives in Detroit with her mother. (SRT 1072.) B. Defense On the day of Vasquez’s shooting, Joe Galindo was workingfor the California National Guard. (6RT 1127.) Between 6:00 p.m. and 7:00 p.m., Galindo went to Tacos El Unico to buy sometacos and returned to his girlfriend’s house approximately five to six houses downthestreet on Glencoe. (6RT 1127-1128.) While outside on the front porch, Galindo heard three gunshots coming from thetaco stand. (6RT 1128.) Galindo turned around and saw a Black male with his right arm up shooting into a car. (6RT 1128, 1132.) Galindo grabbedhis girlfriend and took herinside the house. (6RT 1128.) When he returned outside 15 seconds later, Galindo saw the same man runningpasthis location from a distance of approximately 53 feet away. (6RT 1128-1130.) The man fled around the side of a corner house on Glencoe and Temple. (6RT 1135-1136.) Thelighting was “pretty dark” and Galindo did not see the man’s face. (ORT 1129.) Galindo described the manas being “somewhat stocky,” wearing dark colored pants, a checkered shirt, and a black baseball cap. (6RT 1129-1130.) After a brief visual examination of appellantin the courtroom, Galindo opined that appellant did not appear to be the man he saw running downthe street because appellant was “smaller.” (6RT 1131- 1132.) Galindo described himself as being six feet one inch tall and 17 weighing 204 pounds. (6RT1131.) According to Galindo, the gunman wasatleast astall as or a bit taller than he was. (6RT 1132.) Slaughter was declared unavailable and his guilt phase trial testimony wasreadinto the record. (6RT 1141-1158.) Dolores Churchill is appellant’s great-aunt. (6RT 1214-1215.) Churchill lives with appellant’s mother, Beatrice Reed, in Fullerton. (6RT 1215.) Churchill is a retired social work administrator who is working as a part-time instructor at Santa Ana Community College. (ORT 1215-1216.) Appellant’s mother could not cometotestify in court because she was emotionally “fragile.” (6RT 1228.) Churchill believed that appellant had a strained ordistant relationship with his mother because “they just didn’t communicate with each other well.” (6RT 1219, 1228.) Churchill also believed appellant was a very considerate person who offered to help around the house. (6RT 1226-1227.) He was baptized as a Catholic and participated in his first communion. She has never witnessed appellant displaying uncontrollable anger or having problems with his temper. (6RT 1227.) | Appellant was born on October 30, 1972. (6RT 1216-1217.) Appellant’s mother had a nervous breakdown while pregnant with appellant and was committed to a hospital for approximately 14 days. (6RT 1220.) Appellant’s parents had a “strained relationship” and separated before appellant started kindergarten. (6RT 1217-1218.) Appellant continued to live with his mother in Compton until she became unemployedandlost the house. (6RT 1221.) While in school, appellant showeddifficulty paying attention. (6RT 1222.) He attended several different schools and teachers believed he had learning disabilities: (6RT 1222-1224.) He never received any formal testing for his learning disabilities. (6RT 1225.) 18 Dolores Sheen is the executive director and principal of Sheenway School and Culture Center, which is a school appellant attended 15 years ago. (6RT 1159-1160.) Appellant enrolled at Sheenway School on May 19, 1986, as a seventh grader. (6RT 1161.) At the time appellant was attending the school, Sheen opined that he was not performing to his grade level. Appellant began manifesting behavioral problems dueto his difficulty in accomplishing the school workat his level. (6RT 1167.) Despite numerousattempts, Sheen received no support from appellant’s mother regarding improving appellant’s performance at school. (6RT 1167-1168, 1173.) Appellant failed to makeit to eighth grade because he wasperforming at a third or fourth grade level. (ORT 1169.) He was behind in school assignments, was irregular in attendance, and regularly failed to wear the uniform. (6RT 1171, 1175.) Appellant was suspended and eventually expelled after one year. (6RT 1172.) C. Rebuttal Officer Lewis interviewed Mendezat the scene of the shooting. (6RT 1187-1188.) Mendez wasupset, crying and bloody. Mendez told Officer Lewis that he wassitting inside his truck when a Black male wearing a black jacket approached the passengerside of the vehicle and shot at him and his wife. Mendez also stated that after the shooting, the shooter turned and ran away westbound on Glencoe. (6RT 1191.) Officer Childs interviewed Galindo at the scene. (6RT 1205-1206.) Galindo described the shooter as a Black male wearing a black hat and a long black coat. Galindo gave no description regarding the shooter’s height or weight. He also described another person who was with the shooter as an adult Black male wearing a plaid shirt. (6RT 1207.) In January 1997, approximately three and a half to four months after the shooting, Detective Paiz contacted Mendez to conduct a photographic 19 lineup. (6RT 1194-1195.) After being admonished, it took Mendez approximately 15 seconds to identify appellant as the shooter out of the lineup. (6RT 1195-1196.) In July 1998, Mendez attended a live lineup at the county jail. (ORT 1198.) Again, it took Mendez between 10 to 15 secondsto identify appellant as the shooter. (6RT 1198-1199.) Mendezreiterated that the shooter had a shaved head at the time of the shooting. (6RT 1200-1201.) He had no doubt in his mindthat appellant was the shooter. (6RT 1204.) ~ ARGUMENT I. THE TRIAL COURTDID NOT ABUSE ITS DISCRETION IN DENYING APPELLANT’S MOTION TO CONTINUE THE TRIAL TO PERMIT A DEFENSE WITNESS TO TESTIFY Appellant argues that the trial court abused its discretion whenit denied his motion for a continuanceto allow Joe Galindoto testify at trial. Hefurther contends that the court’s failure to grant the continuance resulted in a violation of his federal constitutional rights under the Sixth, Eighth and Fourteenth Amendments. (AOB 42-75.) Respondentdisagrees. A. Factual Background On May25, 1999,the first day oftrial, appellant’s counsel orally moved for a continuance based on the unavailability of defense witness Galindo,andthe trial court denied the request as follows: [COUNSEL]: Your Honor, I want to raise one problem so the court is aware. [The prosecutor] and I discussed this yesterday. It is about a witness by the nameofJoe Galindo. Mr. Galindo apparently has been transferred within his National Guard Unit perhaps to Yugoslavia. Heis a percipient witness in regards to one of the crimes. And on the basis ofhis transfer, I would be requesting this matter be continued. 20 THE COURT: People, anything? [PROSECUTOR]: I’d object to the continuance. I believe in being a percipient witness, he’s referring to the shooting first in time, victim Vasquez. And Mr. Galindo was present at a location where he couldn’t actually see the shooting, but he saw a person running awayfrom thearea of the shooting and going to a particular location on Glencoe Street. And he indicated at the time to the police that he could not identify that person if seen again; he could just give a description, which I believe would be somewhat. . . inconsistent with the way the defendantlooks. [COUNSEL]: That’s a fair and accurate statement of the facts, Your Honor. THE COURT: Well, the request for a continuanceis denied. Mr. Galindo being transferred to Yugoslavia — there’s no way of knowing if he’ll ever come back or when he might come back. So for that reason, the continuanceis denied. (2RT 75-76.) Galindo subsequently returned from his military duty andtestified at the penalty phaseretrial on August 2, 1999. (6RT 1127-1132.) Galindo stated that he was standing approximately 53 feet away whenthe shooter ran past him. (6RT 1128-1130.) Despite being “pretty dark” outside, Galindo described the shooter as being “stocky,” wearing dark pants, a checkered shirt, and a black baseball cap. (6RT 1129-1130.) After a brief visual examination of appellant in the courtroom, Galindo opined that appellant did not appear to be the man he saw running downthestreet because appellant was “smaller.” (6RT 1131-1132.) After the penalty phaseretrial jury returned a judgmentof death, appellant filed a motion for new trial alleging that he was deprived ofhis right to a fair trial when thetrial court denied his request for a continuance to allow Galindoto testify during the guilt phase. (2OCT 5643-5650.) The motion was denied. (6RT 1335-1336.) 21 B. The Trial Court Properly Denied The Request For Continuance Section 1050, subdivision (e), provides, “Continuances shall be granted only upon a showing of good cause.” A particularized showing ts required when a continuance is requested to secure the attendance of witnesses. (Owens vy. Superior Court (1980) 28 Cal.3d 238, 250.) Specifically, “defendant had the burden of showing he had exercised due diligence to secure the witness’s attendance, that the witness’s expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, andthat the facts to which the witness wouldtestify could not otherwise be proven.” (People v. Howard (1992) 1 Cal.4th 1132, 1171; see People v. Jenkins (2000) 22 Cal.4th 900, 1037.) In determining whetherthere waserror, “the appellate court looks to the circumstances of each case andto the reasons presented for the request.” (People v. Frye (1998) 18 Cal.4th 894, 1013, disapproved on another groundin People v. Doolin (2009) 45 Cal 4th 390, 421, fn. 22.) “ The DMVidentification card showed that appellant was 23 years old at the time of the Mendez/Vasquez shooting. The documentalso indicated that appellant wasfive feet nine inches tall and weighed 122 pounds. Thepicture depicted a clean shaven Black male with a shaved bald head. (See People’s Exh. 13a-13b.) 26 _ have given them the wrong impression that the shooter was bulkier than he really was. Based onthis evidence,any error in denying a continuance was harmless under any standard. Il. THERE WAS SUBSTANTIAL EVIDENCE TO SUPPORT APPELLANT’S CONVICTIONS FOR THE MURDER OF VASQUEZ AND THE ATTEMPTED MURDER OF MENDEZ Appellant contends there wasinsufficient evidence that he was the shooter in the murder of Vasquez and the attempted murder of Mendez. (AOB 76-109.) Respondentdisagrees. A. Standard Of Review In reviewingan insufficiency of evidence claim, the court asks “whether after viewing the evidence in the light most favorable to the prosecution, any rationaltrier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 403, original italics, internal quotations omitted.) The evidence upon which the judgmentrelies must be “reasonable, credible, and of solid value.” (People v. Jones (1990) 51 Cal.3d 294, 314.) The reviewing court cannot reweigh the evidence or evaluate the credibility of the witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Rather, the reviewing court “presume[s] ‘“in support of the judgmentthe existence of every fact the trier could reasonably deduce from the evidence.” [Citation.] This standard applies whether direct or circumstantial evidence is involved.’” (People v. Prince (2007) 40 Cal.4th 1179, 1251.) When verdict is supported by substantial evidence, the appellate court must defer to the lower court’s findings. (People v. Smith (2005) 37 Cal.4th 733, 739.) 27 Even where an eyewitness has been subjected to undue suggestion, the fact finder must be allowed to hear and evaluate the identification Cece testimony, unless the totality of circumstances suggests “'"a very 392999substantial likelihood ofirreparable misidentification.””” (People v. Arias (1996) 13 Cal.4th 92, 168.) B. Sufficient Evidence Supports The Jury’s Finding That Appellant Was The Shooter of Mendez and Vasquez Here, there was sufficient evidence that appellant was the shooter in the murder of Vasquez and attempted murder of Mendez. Mendeztestified that on the day ofthe shooting, he saw appellant approaching his truck from approximately 22 feet away while holding a 12-inch long pistol in his hand. (3RT 464-465, 468-469, 476-477, 488-489.) Ignoring Mendez’splea notto | shoot, appellant fired multiple shots into the truck, striking Vasquez in the head and Mendezin the right cheek. (3RT 471, 473.) Mendez was also shotin his leg as hetried to get out of his truck. (3RT 474.) At the time of the shooting, the parking lot was illuminated bystreet lights and was reasonably well lit. (3RT 452.) Mendez had ample opportunity to observe appellant prior to being shot, not only when appellant was slowly approaching the truck but also as appellant stoodstill “for seconds” before firing multiple shots into the truck. (3RT 470-471.) Furthermore, after the shooting, Mendez gave consistent descriptions of the shooter on three separate occasions. Immediately following the shooting, while Mendez was'still “very, very upset [and] crying,” he described the shooter to Officer Lewis as a Black male wearing a black jacket. (3RT 500-501.) Later in the evening, during an interview with Detective Paiz at the hospital, Mendez described the shooter as being approximately five feet eight inchesto five feet eleven inchestall, 20 to 25 years of age, clean shaven with short black hair, and wearing a black jacket 28 and black pants. (3RT 494, 505.) The same description, with the addition of the shooter’s skin tone, was given to anotherpolice officer at the hospital. (3RT 581-582.) Mendez’s descriptions of the shooter’s physique mostly matched the information and photograph containedin appellant’s California identification card from DMV, which had been issued on August 6, 1996,less than two months before the shooting. (See People’s Exhibit Nos. 13a-13b.) In addition to the verbal descriptions, Mendezpositively identified appellant as the shooter in two separate lineups. First, during a photographic lineup conductedatthe police station, Mendez selected appellant’s picture as that of the shooter “within seconds.” (3RT 480-481, 507.) Second, in a live lineup conductedat the countyjail, Mendez again identified appellant as the shooter“really fast.” (@RT 481-482, 484.) Combined with Mendez’s in-court positive identifications of appellantat both the preliminary hearing:andtrial, and viewing all evidence in light most favorable to the prosecution, this was sufficient evidence to support the jury’s finding that appellant was guilty of murder of Vasquez and attempted murder of Mendez. (People v. Maury, supra, 30 Cal.4th at p. 403.) Citing federal appellate opinions from other jurisdictions as well as a 2006 report by the California Commission on the Fair Administration of Justice, appellant argues that Mendez’s identification of him as the shooter is not substantial or credible evidence. (AOB 82-108.) However, the testimonyof a single eyewitnessis sufficient to support a conviction. (See People v. Boyer (2006) 38 Cal.4th 412, 480 [identification by single eyewitness and out-of-court identification both provided sufficient evidence to prove defendant’s identity]; People v. Cuevas (1995) 12 Cal.4th 252, 275 [out-of-court identifications repudiated at trial may provide substantial evidence]; see also People v. Allen (1985) 165 Cal.App.3d 616, 623 [“It is 29 well settled that, absent physical impossibility or inherent improbability, the testimony ofa single eyewitnessis sufficient to support a criminal conviction.”].) Appellant’s arguments are nothing more than an attack on the credibility of Mendez and an improper attempt to reweigh the evidence on appeal. (People v. Lewis (2001) 26 Cal.4th 334, 361; People v. Diaz (1992) 3 Cal.4th 495, 541; People v. Barnes (1986) 42 Cal.3d 284, 303.) Since appellant cannot demonstrate that Mendez’s testimony was inherently improbable or physically impossible, his contention mustfail. (Peoplev. Young (2005) 34 Cal.4th 1149, 1181; see People v. Champion(1995) 9 Cal.4th 879, 927 [although there wasinconsistencies in eyewitness testimony, jury could reasonably conclude that testimony was credible].) Appellant also claimsthat the photographic andlive lineup results are unreliable due to suggestive identification procedures. (AOB 82.) No such arguments were madeattrial to challenge Mendez’s identification. In any event, neither the photographiclineup northe live lineup was unduly suggestive. Appellant claims that he was the only bald individual in the photographic lineup wearing a white T-shirt. (AOB 82.) However, shortly after the shooting, Mendez described the shooter to Detective Paiz as having short black hair and wearing a black jacket. (3RT 494, 505.) Thus, the fact that Mendez selected appellant’s picture which depicted him with a shaved bald head and a white T-shirt, instead of the pictures of two other men with short black hair and dark clothing (Picture Nos. 3 and 4), further increases the reliability of Mendez’s positive identification. (See People’s Exh. 8.) Since there was nothing in appellant’s picture that caused him to stand out in a way that suggested Mendez should select him, the photographic lineup was not unduly suggestive. (People v. Gonzalez (2006) 38 Cal.4th 932, 943, citing People v. Carpenter (1997) 15 Cal.4th 312, 367 [“‘Because humanbeingsdo not look exactly alike, differences are inevitable. The question is whether anything caused defendantto 30 “stand out” from the others in a way that would suggest the witness should select him.’’’].) Asto the live lineup, appellant claims that it was suggestive because Mendeztestified that he picked the manhe hadpreviously seen in the photographic lineup. (AOB 82.) However, Mendezalsotestified that the manhe picked was “the person who did the shooting” and that he picked appellant out of the lineup “as fast as” he had identified appellant in court. (3RT 481.) Underthe totality of circumstances, Mendez’s identification of appellant out of both lineups werereliable. (See People v. Cook (2007) 40 Cal.4th 1334, 1354 [pretrial identification held reliable underthetotality of the circumstances after considering such factors as the witness’s opportunity to view the suspectat the time of the offense, the witness’s degree of attention at that time, the accuracy of the witness’s prior description, the level of certainty the witness expressed when making the identification, and the lapse of time between the offense and the identification].) Finally, appellant’s attempt to attack Mendez’s identification of appellant by characterizing Mendez’s descriptions of the shooter as “evolving” is groundless. Shortly after being shot twice and before receiving any medical treatment, Mendez gave Officer Lewis a brief description of the shooter as being a Black male wearing a black jacket. (3RT 501.) After being transported to the hospital and finally receiving some treatment for his wounds, Mendez wasable to give a moredetailed | description of the shooter to Detective Paiz, describing him as five feet eight inchesto five feet eleven inchestall, 20 to 25 years of age, clean -Shaven with short black hair, and wearing black jacket and pants. (3RT 494, 505.) Virtually the same description was given to anotherofficer while Mendezwasstill in the hospital. (3RT 581-582.) The fact that Mendez provided a more detailed description of the shooterat the hospital 31 does not demonstrate that hewas making up facts about the shooter. Instead,the more likely explanation is that Mendez simply had more time to reflect and gather his thoughts about the shooting incidentafter his woundshad beentreated at the hospital. Mendez’s preliminary hearing description ofthe shooter as having a bald head and wearing a white T-shirt also does not demonstrate that his descriptions were “evolving.” The description of the shooter as having a bald head wasentirely consistent with his trial testimony that appellant had a shaved bald head. (3RT 491, 497.) Asto his testimony that the shooter was wearing a white T-shirt, Mendez later explained that he was not paying attention to the shooter’s clothing but that he could clearly see the shooter’s face and gun. (3RT 492, 497.) Again, whenall evidenceis viewedin light most favorable to the prosecution, Mendez’s descriptions of the shooter consistently supported the conclusion that appellant was indeed the man who shot at Vasquez and Mendez. (People v. Maury, supra, 30 Cal.4th at p. 403.) Therefore, this argument should be rejected. Ill. THERE WAS SUBSTANTIAL EVIDENCE TO SUPPORT APPELLANT’S CONVICTIONS FOR THE MURDER OF MORELAND AND THE ATTEMPTED MURDER OF FRADIUE Appellant also contends that there was insufficient evidence to support his conviction for the murder of Moreland andthe attempted murder of Fradiue. (AOB 110-132.) Respondent disagrees. A. Standard Of Review The applicable law on review was previously discussed in Argument II. (See Arg.IIA, ante.) 32 B. Sufficient Evidence Supports The Jury’s Finding That Appellant Was The Shooter Of Moreland And Fradiue Aswas the case with the shooting of Mendez and Vasquez,there was ample evidence to support the jury’s guilty findings that appellant was the shooter in the murder of Moreland and the attempted murderof Fradiue. Fradiue testified that he saw appellant among a group of men standing in front of a duplex as Fradiue and Moreland walked on Glencoe Street. (3RT 375, 390.) Fradiue described appellant as a Black man with a “real short” hair, and stated that he wasthe only manin the group holding a rifle over his shoulder. (3RT 393-394, 376-377, 384, 391.) Althoughit was dark outside, there were multiple street lights illuminating the location. (3RT 363-364, 374-396, 408.) Fradiue stated that appellantfirst fired a shot into the air and then began shooting toward him and Moreland. (3RT 377-378.) Fradiue was able to run away without being struck but Moreland wasshot multiple times and killed. (3RT 349, 378, 399.) Fradiue later positively identified appellant as the shooter in two separate occasions, first in a photographiclineup at the police station and subsequently in a live lineupat the jail. (3RT 383-389, 509-511.) He also identified appellant as the shooter during the preliminary hearing andattrial. (LCT 141; 3RT 374- 375.) | Furthermore, in addition to Fradiue’s positive identification of appellant as the shooter, the evidence also established that appellant returned to the scene of the shooting the very next day as documentedin the F.I. card filled out by Officer Pollard. (RT 412-416, 418.) On the same date, the police also recovered the murder weaponinside a house near where Fradiue had seen appellant standing with the rifle over his shoulder just before the shooting. (3RT 355-358, 365, 367, 440-441.) Thus, Fradiue’s identification of appellant was corroborated because he identified a person who wasconnectedto the area where the shooting occurred and 33 the murder weapon was found in a house with appellant’s companionat the time the F.I. card was completed. This evidence, when viewed in light most favorable to the prosecution, was sufficient to support appellant’s convictions for the murder of Moreland and the attempted murder of Fradiue. Asstated previously (see Arg. II.B, ante), appellant’s arguments attacking Fradiue’s credibility based on minorinconsistencies in his testimony as well as challenging thereliability of the identification procedures constitute nothing more than improper attempts to reweigh the evidence on appeal and should be rejected. (People v. Lewis, supra, 26 Cal.4th at p. 361; People v. Diaz, supra, 3 Cal.4that p. 495, 541.) | IV. THE TRIAL COURT PROPERLY DENIED . APPELLANT’S WHEELER/BATSONMOTION DURING THE GUILT PHASE JURY SELECTION BECAUSE HE FAILED TO ESTABLISH A PRIMA FACIE CASE OF GROUPBIAS Appellant, who is African-American, contendsthetrial court erred in overruling the defense Batson/Wheeler'® objection to the prosecutor’s peremptory challenges against five African-American prospective jurors, in violation of the federal and state constitutions. (AOB 133-161.) Respondentdisagrees. A. Factual Background- The guilt phase jury selection began with an initial panel of 250 jurors. (2RT 80-81.) After the jurors claiming hardships were excused,the '© Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69] (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). Forthefirst time on appeal, appellant asserts a claim under Batson. (2RT 296-297.) This Court has held that consideration of a Batson claim is not forfeited on appeal if Wheeler was the only case cited in the trial court. (People v. Yeoman (2003) 31 Cal.4th 93, 117-118.) 34 jury selection proceeded with a panel of 123 jurors who were requested to fill out a jury questionnaire.'’ (2RT 85-127, 150; 2CT 458-461.) Based on the jury questionnaire responses, 41 additional jurors were excused either by stipulation or for cause andthe general voir dire portion ofthe jury selection began with 82 prospective jurors.'® (2RT 150, 155-156, 162-271, 274-276, 292.) The first 18 jurors to fill the jury box were Jurors Gladys Beard, No. 5645, No. 1450, Corinne Tate, No. 2801, No. 6761, Janice Clark, Jacqueline Wilson, Kevin Wees, Bert Abron, No. 1923, Billie Lawrence, Nickey Wright, Mary Cole, Betzaida Campizta, No. 0744, David Wilcox, and No. 9937. (2RT 275-277.) The court conductedthe initial voir dire to the entire panel before the attorneys were allowed to ask additional questions. (2RT 277-287.) After a brief voir dire session, the prosecutor exercised his first five peremptories to excuse Jurors Tate, Abron, Lawrence, Campizta and Janice Clark. (2RT 287-292.) The prosecutorlater used three additional peremptories to excuse Jurors Bruno Blanco, Wright and Cole. (2RT 296.) '’ Althoughthetrial court stated that there were 124 jurors who filled out the questionnaire, the final juror list generated by the court clerk after the jurors claiming hardships had been excused contained only 123 names. (2RT 150, 157-159; 2CT 458-461.) '8 After reviewing thejury questionnaire responses,theparties jointly stipulated to excuse 31 jurors. (2RT 150, 155-156, 162-165.) The trial court and the attorneys then questioned some jurors regarding their responses in the questionnaires before excusing additional seven jurors for cause. (2RT 165-271.) Before the general voir dire began, the court excused Juror Frank Hayes for cause. (2RT 274.) Whilefilling the jury box with the first 18 prospective jurors, it was agreed that Juror Jose Espinosa had already been excused for cause. (2RT 275-276.) During voir dire, the clerk advised the court that Juror Pamela Bryson had been previously excused. (2RT 292.) 35 Following the prosecutor’s eighth peremptory challenge, appellant’s counsel requested to approach the bench and made a Wheeler motion as follows: [COUNSEL]: Yes, your Honor. I would note that — at least it would appear from my count that the People have excused by way of peremptory challenges six — pardon me — five African-Americansout of the eight challenges. THE COURT:All right. Is there anything further? [COUNSEL]: Well, it doesn’t look like, in regards to the last one, there was any — that it was justifiable, and I think it was doneon thebasis ofrace. THE COURT:Sothis is a motion pursuant to Wheeler? - [COUNSEL]: Yes. THE COURT:Is there anything else? [COUNSEL]: No. THE COURT:All right. The court is going to find that there has not been a showingofa strong likelihood and that the burden has not been metat this point in time, so accordingly the Wheeler motion is denied. Thank you. [COUNSEL]: Thank you, your Honor. (2RT 296-297.) After the denial of Wheeler motion, the prosecutor exercised five additional peremptories. (2RT 298, 300-301, 307.) Each party exercised three peremptories duringthe selection of fouralternate jurors. (2RT 308- 318.) B. Applicable Law Both the state and federal constitutions prohibit the use of peremptory challenges to exclude prospective jurors based on bias against membersofa protected cognizable group, such as one identified by race, 36 ethnicity, or gender. (/.E.B. v. Alabama ex rel. T.B. (1994) 511 U.S. 127, 129 [1148.Ct. 1419, 128 L.Ed.2d 89]; People v. Bell (2007) 40 Cal.4th 582, 596.) The improperuse ofperemptory challenges violates a criminal defendant’s federal constitutional right to equal protection andstate constitutional right to be tried by a jury drawn from a representative cross- section of the community, and is subject to challenge by a Wheeler/Batson motionat trial. (See People v. Jenkins, supra, 22 Cal.4th at p. 992; see also People v. Griffin (2004) 33 Cal.4th 536, 553; People v. Willis (2002) 27 Cal.4th 811, 816-817.) A trial court’s evaluation of a Batson/Wheeler motion involves three steps. (Johnson v. California (2005) 545 U.S. 162, 168 [125 S.Ct. 2410; 162 L.Ed.2d 129]; Miller-E] v. Cockrell (2003) 537 U.S. 322, 328-329 [123 S.Ct. 1029; 154 L.Ed.2d 931]; People v. Bell, supra, 40 Cal.4th at p. 596.) “First, the defendant must make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’” (People v. Taylor (2010) 48 Cal.4th 574, 611, quoting Johnson v. California, supra, 545 U.S. at p. 168.) Second, if a prima facie case is shown, the burden shifts to the prosecution to provide a race-neutral explanation for the strike. Finally, if the prosecution meets this burden, then the defendant must show the prosecutor’s reasons were pretextual and the true reason for the strike was purposeful discrimination. (/bid.) At the timeof the guilt phase jury selection in 1999, the relevant California standard for establishingthefirst-step prima facie case in Wheeler/Batson challenges was whether the defendant had shown a “strong likelihood”or “reasonable inference” — terms meaningit was “morelikely than not” and treated as synonymous — that purposeful discrimination had occurred. (See People v. Johnson (2003) 30 Cal.4th 1302, 1313-1314 [citing the use of both terms in Wheeler and confirming they articulated the same standard].) In 2005, the United States Supreme Court disapproved 37, this standard for federal constitutional purposes, stating that a prima facie burden simply meansthe production of evidence that permits thetrial court to draw an inference of discrimination. (Johnson v. California, supra, 545 USS. at p. 170; see also People v. Carasi (2008) 44 Cal.4th 1263, 1292- 1293 [discussing Johnson v. California].) Becausethetrial court in this case denied the Wheeler/Batson motion for appellant’s failure to establish a prima facie case, this Court should independently determine “whether the record permits an inference ' that the prosecutor excused jurors on prohibited discriminatory grounds.” (See People v. Carasi, supra, 44 Cal.4th at p. 1293; see also Peoplev. Taylor, supra, 48 Cal.4th at p. 614 [when a motionis denied without finding a prima facie showing ofdiscrimination, reviewing court | independently reviews the record to decide if it supports an inference that the prosecutor improperly exercised a peremptory challenge].) To prevail, appellant “must make a ‘showingthatthe totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citations.]” (People v. Howard (2008) 42 Cal.4th 1000, 1016-1017, internal quotations omitted.) C. The Record Supports The Trial Court’s Determination ThatAppellant Failed To Establish A Prima Facie Showing Of Discriminatory Purpose Anindependent review of the record supportsthe trial court’s finding that appellant failed to make a prima facie showingthat the prosecutor based his challenges on improperracial discrimination as alleged. Indeed,the trial court’s ruling should be upheld because the record does not permit an inference that the five challenged jurors were excused for constitutionally impermissible reasons. Here, the 12 jurors who were sworn to try the case includedthree African-Americans. (9CT 2583 [Juror No. 8060]; 1OCT 2619 [Juror No. 6761], 2691 [Juror No. 3257].) While not dispositive, the presence of three 38 African-Americanson the jury is an indication that the prosecutor’s peremptory challenges were not based on race discrimination. (See People v. Lewis (2008) 43 Cal.4th 415, 480; People v. Huggins (2006) 38 Cal.4th 175, 236; People v. Avila (2006) 38 Cal.4th 491, 556.) The racial composition of the 12 sworn jurors confirmsthe indications that there was no improperrace or genderdiscrimination by the prosecutor when he exercised his peremptory challenges: there were four Caucasians (Juror Nos. 0744, 5645, 2801, and 9937), two Asians (Juror Nos. 1450 and 9716), three African-Americans (Juror Nos. 8060, 6761, and 3257), one “Middle[-]East[ern]” (Juror No. 5209), one Hispanic (Juror No. 1923), and one “European” (Juror No. 7697). (9CT 2528, 2546, 2565, 2583; 1OCT 2601, 2619, 2637, 2655, 2673, 2691, 2709, 2727.) Moreover, the actual responses given by each ofthe five challenged jurors in their questionnaires or during the oral voir dire showed an obvious permissible reason for the prosecutor’s challenge. Juror Abron wrote in his questionnaire that his brother had a “bad or negative experience[] with law enforcement” when he wasconvicted ofa robbery in 1984 and wassent to prison. (7CT 1854, 1866.) Although Juror Abronstated that his brother’s experience would notaffect his ability to evaluate the credibility of law enforcement witnesses, the prosecutor may have reasonably concluded that the fact that someonesoclose to the juror spent time in prison could affecthis decision-making process in determining appellant’s punishment. (See People v. Lancaster (2007) 41 Cal.4th 50, 78 [no inference of group bias found from the prosecutor’s decision to challenge a prospective juror whose family members had served prison terms]; People v. Ledesma (2006) 39 Cal.4th 641, 678 [the fact that a prospective juror had a brother confined in prison was an “adequate” reason to strike the juror].) 39 Additionally, Juror Abron indicated in the questionnaire that he had previously been on a criminal jury involving a murder charge in 1992 whichresulted in a “hung” jury. (7CT 1867.) Although there is no explanation as to what role Juror Abronplayed in the previous jury’s failure to reach a verdict, the prosecutor mayhave had legitimate concerns about a juror who could have caused a “hung”jury in the past, particularly in a murdertrial. (See People v. Turner (1994) 8 Cal.4th 137, 170, overruled on another ground in People v. Griffin, supra, 33 Cal.4th at p. 555, fn. 5 [a prospective juror’s “experience ofsitting on a hung jury constitutes a legitimate concern for the prosecution”]; People v. Rodriguez (1999) 76 Cal.App.4th 1093, 1108-1109.) Thus, this record does not support an inference that Juror Abron was excused for prohibited discriminatory reasons. Juror Lawrencestated in her questionnaire that she was “[s]trongly against”the death penalty and that her view on the issue had not changed in the past ten years. She also:indicated that in her opinion, the death penalty is imposed too often. (4CT 1028.) Duringthe oral voir dire, Juror Lawrencereiterated her opposition to death penalty as follows: [PROSECUTOR]: All right. How do you feel about having a death penalty? Do you think we should have one or we should not. PROSPECTIVE JUROR LAWRENCE: Well, you know, I look at it — so many people are being sent, you know,to a — given the death penalty and they are not — you know,five years, ten years later, they have found that they really didn’t commit the crime. [§] . ... [J] So, you know,I mean, if we are going to have justice, I believe that maybe we should just not have a death penalty. You know,‘cause you can send somebody to death and they could be innocent. (2RT 209-210.) Later on, despite her words of assurance that she would follow the law and apply the death penalty based on the evidence, Juror 40 Lawrence again mentioned her concern forthe possibility of imposing the death penalty on an innocentperson as follows: [PROSECUTOR]: In your heart, given the way that you feel, can you [impose the death penalty]? PROSPECTIVE JUROR LAWRENCE: Oh,yes. I mean, ... there’s two different things that we have. We haveto lookat the law, and we haveto go accordingto the evidencethat’s put before us as jurors. And underthe law, .. . you have to do what the law says. [PROSECUTOR]: All right. PROSPECTIVE JUROR LAWRENCE:Although we could send somebody — give them death and they could be sent — you know. But you haveto go underthe law. Really, you have to look atall the evidence. But like I said, there is always a possibility that a person could be sent to death and be innocent. But I would lookat the law. (2RT 210-211, italics added.) | Thetotality of Juror Lawrence’s questionnaire and oral responses plainly raised questions aboutherability and willingness to impose the death penalty, legitimate concernsthat supported the prosecutor’s peremptory challenge. This record does not support an inference that the juror was excusedfor prohibited discriminatory reasons. (See People v. | Cash (2002) 28 Cal.4th 703, 725 [willingness to impose death penalty is proper consideration for exercising peremptory challenge]; People v. Pride (1992) 3 Cal.4th 195, 230 [a prospective juror’s concerns about an innocent person being executed foundto be a legitimate race-neutral reason to exercise peremptory challenge].) Juror Clark, similar to Juror Abron,also had a close relative who had been previously convicted of a crime. In her questionnaire, Juror Clark stated that her spouse was convicted of a drug offense in 1977. (7CT 41 1813.) Although she also indicated that her husband hadreceiveda fair outcomefrom the incident, the prosecutor may have reasonably concluded that Juror Clark’s experience with her husband’s criminal conviction could affect her ability to be a fair juror in this case. (See People v. Lancaster, supra, 41 Cal.4th at p. 78; People v. Ledesma, supra, 39 Cal.4th at p. 678.) Juror Wright disclosed in his questionnaire that he was familiar with Tacos El Unico, the scene of the Mendez/Vasquez shooting. In People v. Vines (2011) 51 Cal.4th 830, a capital murdertrial stemming from a robbery of a fast food restaurant, this Court found that the prosecutor reasonably took into account the fact that a prospective juror’s daughter had previously workedat a fast food restaurant in exercising his peremptory challenge. (/d. at p. 852.) In this case, Juror Wright was personally familiar with the actual restaurant where oneof appellant’s murders occurred. Similar to the prosecutor in Vines, the prosecutor here could have reasonably concludedthat a juror personally familiar with the crime scene maybebiased in evaluating the evidence of the shooting location. Additionally, Juror Wright indicated in his questionnaire that a defendant in a criminaltrial had to prove his innocence. (7CT 1781.) The fact that Juror Wright had a fundamental disagreementas to the burden of proofin a criminal trial was an obvious point of concernfor the prosecutor. (See People v. McGhee (1987) 193 Cal.App.3d 1333, 1352 [juror’s ability to follow the law foundto be a legitimate concern in exercising a peremptory challenge].) Based on this record, it cannot be inferred that Juror Wright was excused for prohibited discriminatory reasons. Juror Cole also had a husband who hadbeenarrested or charged with a crime. As was the case with Jurors Clark and Abron,the prosecutor had legitimate reasons to be concerned abouta juror who hada close relative with a criminal history. (See People v. Lancaster, supra, 41 Cal.4th at p. 78; People v. Ledesma, supra, 39 Cal.4th at p. 678.) Further, 42 Juror Cole disclosed in her questionnaire that she owneda firearm which originally belonged to her father. (3CT 694.) The fact that appellant’s case involved two separate shootings with firearms gave the prosecutor reasonable basis to be concerned abouta juror’s familiarity with firearms. (See People v. Lomax (2010) 49 Cal.4th 530, 577-578 [the fact that a juror owned gunsand hadfired a gun or been present when guns werefired were legitimate reasons for excusing the juror].) Asto this juror, the record did not raise an inferencethat the prosecutor improperly exercised a peremptory challenge of her based on prohibited race discrimination. Asjust demonstrated, the record completely supportedthetrial court’s finding of no prima facie case and therefore, it should be affirmed. (See People v. Garceau (1993) 6 Cal.4th 140, 172-173, overruled on another ground in People v.. Yeoman, supra, 31 Cal.4th at pp. 117-118 {denial of Wheeler/Batson motion affirmed where record showedtrial court relied on individual juror’s responses and supported court’s finding that defendantfailed to establish prima facie case of discrimination].) The record does not raise an inference of discrimination as to any ofthe five challenged jurors, muchless any pattern of discrimination, and as previously discussed, the composition ofthe jury that was sworn to try the case demonstrates there was no design to exclude African-Americans. Appellant argues that the prosecutor’s failure to orally question any of the five challenged panel members on voir dire suggests that he was exercising his peremptory challenges based on a group bias. (AOB 154.) This is factually incorrect. The prosecutor spent a significant amount of time questioning Juror Lawrence regarding her concern for innocent people being sentenced to death penalty. (2RT 209-211.) More importantly, under the applicable law at the time of appellant’s trial, the trial court properly assumed the primary role in questioning the jurors which limited the timeit allotted to counsel for questioning. (See People v. Taylor, supra, 48 43 Cal.4th at pp. 615-616 [prosecutor’s failure to ask questions is not significant where, consistent with the law at the time, court assumed primary responsibility for questioning and prosecutor reviewedextensive questionnaire].) Plainly, the limited nature of attorney voir dire explains the lack of questioning as to the four other jurors, and also justified the prosecutor’s heavy reliance'on the jurors’ responses to written questionnaires. As for appellant’s attempt to compare the responsesofthe challenged jurors with each other and those ofother jurors (see AOB 142- 154), such comparative analysis has beenheld to be oflittle value and not requiredat thefirst stage of a Wheeler/Batson analysis in determining whether a defendant established a primafacie case of discrimination. (People v. Taylor, supra, 48 Cal.4th at pp. 616-617 [declining to engage in comparativeanalysisatfirst-stage of Wheeler/Batson analysis]; see also People v. Williams (2006) 40 Cal.4th 287, 312-313 [noting diminished value of comparative analysis where there is an objectively plausible basis for dismissing prospective juror and no pattern of discrimination appears; court should be hesitant to infer Wheeler/Batson violation under such circumstances giventhe legitimate role of subjective factors in a prosecutor’s decision of whether to exercise a peremptory challenge].) Forall of these reasons, appellant’s Wheeler/Batson argument should be rejected. V. THE JURY WAS PROPERLY INSTRUCTED WITH A MODIFIED VERSION OF CALJIC NO.2.92 Appellant arguesthat his constitutional rights were violated when the trial court instructed the jury with CALJIC No. 2.92 without two ofthe eyewitness identification factors requested by defense. (AOB 156-161.) Respondentdisagrees. 44. A. Factual Background While discussing the jury instructions, appellant’s counsel raised an objection to the revisions madebythetrial court to CALJIC No. 2.92 regarding the factors to be considered bythe jury in determining the proof of identity by an eyewitness testimonyas follows: THE COURT: ... Then the defense wanted to discuss [CALJIC No.] 2.92,factors in proving identity by eyewitness testimony. [COUNSEL]: Yes, your Honor. I think there was...a couple ofstricken itemsthere. THE COURT:Yes. [COUNSEL]: ... One of them is on the second page... . THE COURT: The one on the second page that has been stricken is whether the witness hadprior contacts with the alleged perpetrator. There’s no evidencein either case that any of the witnesses have ever had any contact with Mr. Reed. [COUNSEL]: That’s correct. AsI understandthat . . . factor, the suggestion is. . . that if he hadprior contacts, then it is more likely that the identification is a goodidentification; and if he didn’t have prior contacts, then it is less likely. And that’s why I would request that one to be left in. THE COURT: Did you have any responseto that? [PROSECUTOR]: No. THE COURT: I’m goingto leaveit out. Theotherstricken area was. . . the witness’ capacity to make an identification. 45 I don’t think that we havethat as an issuein this case. There is no someone whois of minor age or anythingelse to indicate — | [COUNSEL]: I agree. The problem . . . has to do with the issue of intoxication. Mr.Fradiue had told us that he was drinking all day. And I agree I don’t think it is really a capacity argument, but . . . there must be anotherplacein that instruction that allows me to argue that. THE COURT:I think there is. That’s the concludingline, whichsays “and any other evidence relating to the witness’ ability to make an identification.” [COUNSEL]: We’ll use that then. THE COURT:All right. (3RT 559-560.) The jury waslater instructed with the revised version of CALJIC No.2.92, as follows: Eyewitness testimony has been receivedin thistrial for the purpose ofidentifying the defendantas the perpetrator of the crime[s] charged. In determining the weight to be given eyewitness identification testimony, you should consider the believability of the eyewitness as well as other factors which bear upon the accuracy of the witness’ identification of the defendant, including but not limited to, any of the following: [The opportunity of the witness to observethe alleged _ criminalact and the perpetrator of the act;] [The stress, if any, to which the witness was subjected at the time of the observation;] [The witness’ ability, following the observation, to provide a description of the perpetratorofthe act;}] [The extent to which the defendanteither fits or does not fit the description of the perpetrator previously given by the witness; ] 46 [The cross-racial [or ethnic] nature ofthe identification;] [Whether the witness wasableto identify the alleged perpetrator in a photographic or physical lineup;] [The period of time betweenthe alleged criminal act and the witness’ identification;] [The extent to which the witnessis either certain or uncertain of the identification;] [Whether the witness’ identification is in fact the product of [his] own recollection;] [ ;| and Any other evidencerelating to the witness’ ability to make an identification. (2CT 526-527; 3RT 613-614.) | B. The Trial Court Properly Modified CALJIC No. 2.92 _ According To The Evidence At Trial; In Any Event, Any Error Was Harmless Thetrial court is required to instruct the jury only on the relevant and/or raised theories of defense. Further, the court may “‘properly refuse an instruction offered by the defendantif it... is not supported by substantial evidence[citation].’” (People v. Burney (2009) 47 Cal.4th 203, 246, quoting People v. Moon (2005) 37 Cal.4th 1, 30.) Here, as thetrial court correctly noted and counsel so acknowledged, there was no evidence that any of the eyewitnesses were previously acquainted with appellant. (3RT 559-560.) In fact, both Mendez and Fradiuetestified that they had never seen appellantpriorto their respective shootings. (3RT 375, 391, 479, 490.) In the absenceof any evidence,let alone substantial evidence, of prior contact with appellant, the trial court did not err in striking the “prior contacts” factor from CALJIC No. 2.92 47 before instructing the jury with it. (See People v. Burney, supra, 47 Cal.4th at p. 246.) . Similarly, there was no evidence presentedattrial that Fradiue lacked capacity to make an eyewitness identification.” Although counsel tried to argue that Fradiue’s intoxication might have affected his capacity to make an identification, he readily agreed with the court that “it is really [not] a capacity argument.” (BRT 560.) Aside from Fradiue’s own testimony that he had been drinkingprior to the shooting, there was no other evidence presented to support an argumentthat Fradiue lacked any legal capacity to identify the shooter. To the contrary, Fradiue was fully capable of careful observations and well-aware of his surroundings as evidencedbyhis detailed description of the shooting incident. (RT 372- 399.) Since there was no substantial evidence of lack of capacity by any witness, this factor was also appropriately left out by the trial court.” Appellant appearsto rely on People v. Wright (1988) 45 Cal.3d 1126, to argue that the entirety of CALJIC No. 2.92, including the two G66omitted factors, ““should be given . . . in a case in which identification is a '? Appellant’s counselobjected to the “capacity”factorattrial based . on Fradiue’s intoxication issue only. (3RT 560.) To the extent that appellant is now attempting to claim that the trial court should havealso instructed with the “capacity” factor because Mendez’s identification was allegedly affected by the state of his injuries (AOB 156,fn. 54), this argument has been forfeited on appeal for failure to timely objectattrial. (See People v. Lee (2011) 51 Cal.4th 620, 638.) Although section 1259 permits review of issues affecting appellant’s substantial rights without an objection being asserted, it is inapplicable here since the remainderof the instruction allowed consideration of the omitted factors and appellant’s substantial rights were not affected. *° Similarly, appellant’s argumentthat the alleged instructional error resulted in a violation of his federal constitutional rights should be rejected as the “[rJejection of a claim on its merits necessarily disposes of the additional constitutional ‘gloss.’” (People v. Hartsch (2010) 49 Cal.4th 472, 493, fn. 19.) 48 crucial issue... .”” (AOB 158-159.) However, this Court in Wright also stated that a court instructing the jury with CALJIC No.2.92 “should list onlyfactors applicable to the evidenceattrial, and should refrain from being unduly long or argumentative.” (/d. at p. 1143, italics added.) Additionally, this Court specifically instructed that “[t}]his model instruction, with appropriate modifications to take into accountthe evidence presentedattrial, will usually provide sufficient guidance on eyewitnessidentification factors.” (Id. at p. 1141, italics added.) As previously stated, since there was no evidence to support either of the two omitted factors, the trial court’s modifications to the jury instruction were appropriate. In any event, even assumingthetrial court should have instructed the jury with the two omitted factors, any error was harmless becauseit is not reasonably probable that appellant would have obtained a more favorable result absent the alleged error. (See People v. Wright, supra, 45 Cal.3d at p. 1144 [applying the Watson standard of harmless error in alleged CALJIC No. 2.92 instructional error].) In addition to the specific factors listed under CALJIC No. 2.92, the jury was also instructed with a “catch-all” provision at the very end ofthe instruction, which instructed the jury to consider “[a]ny other evidence relating to the witness’ ability to make an identification.” (2CT 526-527; 3RT 613-614.) Underthis provision, the jury wasfree to consider appellant’s lack of prior contacts with the eyewitnesses and the witnesses’ intoxication even withouta- pinpoint instruction. Furthermore, counsel argued extensively during his closing arguments that Fradiue’s identification of appellant should be discarded because he had been drinking all day, was under the influence of drugs and had not observedthe actualfiring of the rifle. (RT 672-674.) In contrast, there was strong evidence presented that heighted the credibility of the 49 eyewitness testimony. For example, both Mendez and Fradiue provided multiple descriptions of the shooter from their own recollection which _ matched appellant’s appearanceat the time,identified appellant out of both photographic andlive lineups, and were highly confident oftheir identifications. (3RT 383-389, 393-394, 376-377, 384, 391, 464-465, 480- 482, 484, 494, 501, 505, 507, 509-511, 582.) The jury’s guilty verdicts clearly demonstrate thatit believed the eyewitness identifications and rejected counsel’s arguments to the contrary. In light of this record, any error in omitting two factors out of CALJIC No. 2.92 was harmless. VI. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ALLOWING MENDEZ’S USE OF THE TERM “DEVIL” DURING TESTIMONY Appellant claimsthatthe trial court erred in failing to control Mendez’s outbursts on 13 occasions during his guilt phase testimony and three occasions during his penaltyphaseretrial testimony when hereferred to appellant as the “devil.” (AOB 162-169.) Respondentdisagrees. A. Factual Background During Mendez’s guilt phase testimony, he obviously became emotional discussing the shooting death of his wife and referred to appellant as the “devil” on several occasionsas follows: [PROSECUTOR]: Once you wereinside yourtruck, what’s the next thing that happened? [MENDEZ]: Uh, we weretalking for a minute, for some — you know, some — “Let’s go, we are hungry,” something. And then I was readyto start on the truck when my wife saw that devil over there. [PROSECUTOR]: And what did you see? 50 {MENDEZ}: This devil (indicating) with the pistol in his hand. [PROSECUTOR] All right. You pointed — sorry to stop you, but you pointed at somebody in the courtroom. Point again so the judge can see you andtell the judge whatis the man wearing right now. . [MENDEZ]: This devil right there (indicating). I saw this devil coming with pistol, you know,against us. THE COURT: Excuse me. Would you describe what he’s wearing now orhis race, the man that you’re pointing to here. You see there are four menatthis table. [MENDEZ]: Yeah,that devil (indicating). You know,he has that shirt. That devil (indicating). [PROSECUTOR]: Whatcoloris the shirt? [MENDEZ]: Like a blue with a whiteinside. THE COURT: All right. That’s the defendant, Mr. Reed. Thank you,sir. (3RT 464-465, italics added.) Mendezintermittently referred to appellant as the “devil” as he continued to describe the shooting as follows: [PROSECUTOR]: You said you — okay. You then began to start the truck? [MENDEZ]: Yeah, when my wife — because she was afraid already. You know, she was — she wasafraid. Andthen I tried not to worry my wife. And then I said, “Don’t worry. We’ll just leave.” And then I start on the truck. WhenI start on the truck — [PROSECUTOR]: Okay. [MENDEZ]: — and then this — this devil right there start [shooting] at us. . 51. [PROSECUTOR]: Sorry. From yourposition in the truck, did you continue to watch him as he walked closer, or did you turn yourattention to the key and the truck? [MENDEZ]: No, when... this devil—... at that time, he was... standing right there, and he point us, you know,the pistol, the arm.... [PROSECUTOR]: Did you hold your hand uplike that? [MENDEZ]: Facing to the windshield. Because he was really straight to... my wife. She was right here. And this devil was right there. And I tried to stop... him to not to, you know, sho[o]t us, you know. [PROSECUTOR]: Where did you go? [MENDEZ]: Tried to run, you know,tried to run to somebodyhelp me from the devil that was there.... [PROSECUTOR]: ... But are you able to tell whether or not your wife washit by the first shot or whether you werehit by the first shot, or were you not abletotell? [MENDEZ]: I’m able to say that she gotthe first shot. She got the first shot. But I don’t know. She didn’t talk to me. WhenI tried to — she didn’t have any reaction. When tried to stop this devil. She didn’t have any reaction.... [PROSECUTOR]: He stopped shooting? [MENDEZ]: Yeah. Yeah. 52 And then when I — when — well, I didn’t think aboutif he was there or not. I just came back for my wife. And then — but this devil, he wasn’t there. And I think he runs away. And then I came back for my wife. (3RT 470-473, 476,italics added.) Later, while discussing the photographic identification, Mendez referred to appellantas the “devil” once again as follows: [PROSECUTOR]: In January of the next year, 1997, did you contact this manright in front of me, Detective Paiz, or did he contact you? [MENDEZ]: Yes, he did. [PROSECUTOR]: Andthen did he show you some photographs? [MENDEZ]: Yes, hedid. [PROSECUTOR]: Anddid you dothat at your houseorat the police station, or where did you do that? [MENDEZ]: Hecall{ed] me to. . . his office, and then he showed me;and then I recognize this devil right away. (3RT 479,italics added.) Mendez referred to appellant as the “devil” a total of 13 times duringhis guilt phase testimony but no objections were ever asserted. Duringthe penalty phaseretrial testimony, Mendez againreferred to appellant as the “devil” as follows: [PROSECUTOR]: Okay. After you got in and when you openedthe doorfor her, what’s the next thing that happened? [MENDEZ]: I was,uh, ready to... go, and, uh, we were talking for a — pretty — couple of words, and then she saw that devil right there (indicating). (SRT 1007,italics added.) Later, when Mendez againreferred to appellant as the “devil,” defense counsel objected for the first time as follows: 53 [PROSECUTOR]: ... When you looked to your right, what did you see? : [MENDEZ]: I saw that devil with the — [COUNSEL]: Your Honor,I object, and I'd ask the witness not to describe him in such a way. It’s not appropriate. THE COURT:Yes,sir. Ifyou see somebodyin the courtroom that is the person that you saw that day, would you simply point him out where he’s seated andtell us what he’s _ wearingfor today,please. Do you see somebody here? [MENDEZ]: Yeah. A red shirt. THE COURT: Whereis he seated? [MENDEZ]: Right in the — first place. THE COURT: Youpointed to the defendant. That’s Mr. Reed. . If you’ ll refer to him as either “the defendant” or “Mr. Reed,”please. [MENDEZ]: Oh. THE COURT: Okay? [MENDEZ]: (Witness nods his head up and down.) (SRT 1008, italics added.) Closer to the end ofhis direct testimony, Mendez usedthe term “devil” once again for thelast time as follows: [PROSECUTOR]: All right. When you got it in your mindthat your wife wasstill there, was the shooterstill shooting or had heleft — [MENDEZ]: No, no. No,this devil alreadyleft. [PROSECUTOR]: All right. You mean the defendant? _ [MENDEZ]: Yeah. 54 (SRT 1017, italics added.) B. Appellant’s Guilt Phase Claim Has Been Forfeited For Failure To Timely Object Generally, objections to evidence on the specific grounds asserted must be madeorthe objectionis forfeited. (People v. Pollock (2004) 32 Cal.4th 1153, 1181.) Here, there were no objections asserted during the 13 times Mendez usedthe term “devil”to referto appellant during the guilt phase ofthe trial. RT 464-465, 470-473, 476, 479.) Therefore, - appellant’s claim oferror as it relates to the use of the term “devil” during Mendez’s guilt phase testimony has been forfeited on appeal. Furthermore, appellant also forfeited any federal constitutional claims stemming from Mendez’s use of the term “devil.” Constitutional objections must be interposedin the trial court in order to preserve them for appeal. (See People v. Partida (2005) 37 Cal.4th 428, 433-434; People v. Williams (1997) 16 Cal.4th 153, 250.) Here, there was no objection asserted on federal constitutional grounds in either of Mendez’s guilt or penalty phase testimony. Therefore, the federal claim has been forfeited as _ well. C. There Was No Abuse Of Discretion And In Any Event, Any Error Was Harmless Even assuming therewas no forfeiture, the trial court did not abuse its discretion in allegedly failing to control Mendez’s use of the term “devil.” The trial court has the broad discretion to control the proceedings duringtrial “with a view to the expeditious and effective ascertainmentof the truth regarding the matters involved.” (§ 1044 .) “Where a discretionary poweris inherently . . . vested in thetrial judge, his or her exercise of that wide discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or 55 patently absurd mannerthatresulted in a manifest miscarriage ofjustice.” (People v. Jordan (1986) 42 Cal.3d 308, 316; see also People v. Frye, supra, 18 Cal.4th at p. 948.) The outbursts here were limited to the use of the term “devil” in referring to appellant by a single victim who had personally andat close- range witnessed his wife being shotin the head by appellant and was himself shot multiple times. Due to the understandably emotional nature of the crime, and especially in light of counsel’s continued lack of objection to the use ofthe term “devil,” the court could have properly determined that an intervention was unnecessary during the guilt phase testimony. Indeed, as soon as appellant’s counselfinally decided to intervene and object to the use of the term “devil” during the penalty phase, the court immediately admonished Mendezto referto appellant as “defendant.” (5RT 1008.) Nothing in the record demonstrates that the trial court’s lack of early intervention to Mendez’s use of the term “devil” constituted an arbitrary or capricious exerciseof discretion resulting in manifest miscarriage of justice. (See People v. Lewis (2006) 39 Cal.4th 970, 1029 [trial court did not err in denying motion for mistrial based on witness’s commentthat the defendant wasa “dirty black dog” as she was leaving the witness stand, because the jury was awarethat the witness scorned the defendant for gunning down her daughter in church].) Furthermore, “[a]t the penalty phase, the prosecution may introduce evidence of the emotional effect of defendant’s prior violent criminal acts on the victims of those acts.” (People v. Price (1991) 1 Cal.4th 324, 479.) Thus, Mendez’suse of the term “devil” to describe his wife’s murdereris not groundsfor reversal of the penalty phase.”! al Similarly, appellant’s argument that Mendez’s use of the term “devil” also resulted in a violation of his federal constitutional rights should (continued...) 56 In any event, any errorin failing to control Mendez’s emotional outbursts was harmless. A witness’s blurting out of inadmissible evidence does not require reversal unless the trial court abusedits discretion in concluding the statement was not incurably prejudicial. (See Peoplev. Bradford (1997) 15 Cal.4th 1229, 1336.) “Whether a particular incidentis incurably prejudicial requires a nuanced,fact-based analysis.” (People v. Chatman (2006) 38 Cal.4th 344, 369-370.) In the instant case, Mendez’s use of the term “devil” did nottell the jurors anything that they could not easily surmise for themselves. In the context of the heinous facts surrounding the shooting of Mendez andhis wife, the trial was understandably an emotional one for him, and Mendez’s frustration and animosity towards appellant would comeaslittle surprise to the jury. Once counselasserted an objection, the court promptly ordered Mendezto refrain from using the term. The court also instructed the jury with CALJIC No. 1.00 which stated that the jury “mustbase[its] decision on the facts and the law” and that it “must not be influenced by sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling.” (2CT 502-503.) Thejury is presumed to have followed these instructions. (People v. Osband (1996) 13 Cal.4th 622, 714.) Therefore, any error in failing to control Mendez’s use of the term “devil” was harmless. (...continued) be rejected since the trial court did not abuseits discretion in controlling the witness testimony. (See People v. Hartsch, supra, 49 Cal.4th at p. 493, fn. 19.) 57 Vil. THE TRIAL COURT PROPERLY DENIED APPELLANT’S REQUEST FOR LINGERING DOUBT INSTRUCTIONS, ADEQUATELY RESPONDED TO JURY’S WRITTEN INQUIRY, DID NOT DIRECT A VERDICT OF DEATH, AND WAS NOT REQUIRED TO INFORM THE JURY ABOUT THE FIRST PENALTY PHASE MISTRIAL AND A DEFENSE WITNESS’S ABSENCEIN GUILT PHASE TRIAL Appellant contendsthatthe trial court improperly refused to give the penalty phaseretrial jury lingering doubtspecial instructions requested by appellant and failed to adequately respond to the jury’s written inquiry asking whether a death verdict could be returned “[i]f the jury agrees that one of the cases presented warrants the death penalty, however, one of the cases contains some doubt... .” Appellant also contends that the court’s instruction that appellant’s guilt was “conclusively presumed”or “conclusively proven” directed a verdict of death and that the court was _ required to inform the jury aboutthe first penalty phasejury’s deadlock and Galindo’s unavailability during the guilt phasetrial.“* (AOB 170-214.) Respondentdisagrees. A. Factual Background During the penalty phaseretrial-jury selection, the court gave the following instruction to the jury: All right. Ladies and gentlemen,this is a criminal case. It is what is referred to as a penalty phasetrial. There hasalready been a guilt phase jury trial. In thattrial, the defendant was convicted of two counts of murderin thefirst *2 Appellant also adds a federal constitutional claim to each allegation. (AOB 182-183, 189-191, 201-203, 207-208.) As will be shown below,since there was noerror underthe applicable state law, appellant’s federal claims must be rejected as well. (See People v. Hartsch, supra, 49 Cal.4th at p. 493, fn. 19.) 58 degree and two counts of willful, deliberate, and premeditated attempted murder. It was also foundto be true that the defendant personally used a firearm in each of those four felonies and,further, that he inflicted great bodily injury in one of the attempted murders. The jury in the guilt phasetrial also foundto betrue the allegation of whatis called a special circumstance, that is, that the defendant was convicted of two first degree murdersin that proceeding. Having been found guilty of those offenses and the special circumstance having been foundtobetrue, there is a second trial, the penalty phasetrial. Jn this penalty phasetrial, the defendant's guilt is to be conclusively presumed as a matter of law. In the penalty phasetrial you will be asked to decide what penalty will be imposed. You’ll be given only two alternatives: life without the possibility of parole or death. Life inprison withoutthe possibility of parole means just that. The defendant will spendtherest of his life in prison, and he will never be released on parole. Death means exactly that. The defendant will be sentenced to death and will be executed in the San Quentin prison. The jury must listen to the information about the defendant’s background, both the good andthe bad, and take that into consideration, along with the evidencethat you will hear about the circumstancesof the crimes he has been convicted of, and then decide between the two punishments whichare allowedby law. (SRT 963-964,italics added.) Later on in the voir dire, when three additional potential jurors joined the jury pool, the court reiterated the above instructions and once again remindedthe jurors that “[i]n this . .. penalty phasetrial, the defendant’s guilt is to be conclusively presumed as a matter of law. You are not here to determinehis guilt or innocence.” (SRT 969-970.) 59 At the close of evidence presentation, the court instructed the jury as follows: Well, ladies and gentlemen, we’ve reachedthat part of the trial where you have nowall the evidence that you are ever going to haveinthis trial to decide the issue which is before you, which, as you are aware, is simply what punishment should be imposed. Remember whenwestartedoff, I advised you ofthe fact that the defendant has been convicted of the two counts of attempted murder, two counts of murderin the first degree, that the use of a firearm was found to have been true already by anotherjury, and thatthe infliction of great bodily injury was found to be true. As a matter oflaw, you are to treat those convictions as conclusively proven. (6RT 1232, italics added.) While discussing the jury instructions, defense counsel requested the court to instruct the jury with two special instructions regarding lingering doubt. (6RT 1241-1244.) Defense special instruction “A”, which was based on People v. Morris (1991) 53 Cal.3d 152, 218-219, disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830,fn. 1, stated as follows: The adjudication of guilt is not infallible and any lingering doubts you entertain on the question of guilt may be considered by you in determining the appropriate penalty, including the possibility that some timein the future, facts may cometo light that have not yet been discovered. (10CT 2881.) Defense special instruction “C”, based on Peoplev. Thompson (1988) 45 Cal.3d 86, 134, stated as follows: Each of you mayconsideras a mitigating factor any lingering or residual doubt that you may haveasto the guilt of the defendant. Lingering or residual doubtis defined as doubt concerning proof that remains after you have been convinced beyond a reasonable doubt. (10CT 2883.) 60 The prosecutor objected to the lingering doubt special instructions, and the following discussion ensued: THE COURT:.:. And the People object to [special instruction “A”’]? [PROSECUTOR]: Yes. THE COURT: Andthe basis of the objection is? [PROSECUTOR]: In a numberofcasessince then, the court has found that the defense is not entitled to a specific instruction concerning lingering doubt. AndI'd cite two just as examples. People v. Ochoa, at 19 Cal.4th 353 at page 478. That’s a 1998 case. And People v. Mayfield, 14 Cal.4th 448, at page 807. And that’s a 1997 case. THE COURT:I think, yeah, what Mayfield standsfor is the proposition that since we have 8.85 of the jury instructions whichgives the broad definition of factor (k), that there isn’t any need to give pinpoint instructions on the definition of lingering doubt. I'll hear from whoeveris going to addressthis. [COUNSEL]: You Honor, I found 174 cases talking about lingering doubt, and they wereall over the place. As [the . prosecutor] has pointed out, there are cases that go both ways. It struck me that becausethis is a second jury, I would think that an understanding of that lingering doubt would be more clear to a guilt phase — to a jury that had considered the guilt of the defendant; and that when we havethe secondjury,I think it might be moreimportant to give such an instruction there. Thereis a case called People v. Arias — 61 THE COURT:I’m familiar with it. I’m looking rightatit. [COUNSEL]: And mythought is — the only language I waslookingat there is where it was talking about,asI understoodit, in some circumstances they thoughtthat a lingering doubtinstruction should be given. Andit struck me that perhapsthis is that kind ofcase. (6RT 1241-1242.) After considering the arguments from both sides, the court declined to give the proposed defensespecial instructions “A” and “C”, (6RT 1243-1244.) During the closing arguments, appellant’s counsel emphasized that appellant had been found guilty of the two murders beyond a reasonable doubt and explainedto the jury that any lingering doubt it might have regarding appellant’s guilt could be used as a mitigating factor in deciding whether to imposethe death penalty. (6RT 1284-1285.) Counsel went on to highlight in detail the apparent inconsistencies in the prosecution evidencein an attempt to undermine the victims’ eyewitness identifications. -(6RT 1285-1292.) In his concluding remarks, counsel again returned to the issue of residual doubtas follows: Thereis possible doubt. Mr. Reed stands before you convicted of these two homicides. The jury at the trial in the guilt phase found him guilty of them beyonda reasonable doubt. Ladies and gentlemen, I submit to you that there is a residual, possible doubt; and I believe it should form the basis of your vote against death in this case. (6RT 1292-1293.) - Onthe second day of deliberation, the jury submitted the following question to the court: If the jury agrees that one of the cases presented warrants . the death penalty, however, one of the cases contains some doubt, according to the instructions, is this sufficient for awarding death? 62 (6RT 1316.) Counsel and the prosecutor presented their positions as follows: [COUNSEL]: Your Honor, I’d ask the court to consider answering this question in the following way: that I believe that the answeris “no.” The jury, I think, has expressed a question that suggests that they have a lingering doubt in regards to one of the special circumstances. Andsince the reason that weare here is because of a finding of the special circumstances, I think what they are expressing is a lingering doubt as to that special circumstance; and therefore I think they should be advised that the answeris “no,” and that they should consider lingering doubt asa... circumstance in mitigation. [PROSECUTOR]: I think that we should tell them that they can considerall the evidence that they have andthat they have had, in light of the law; and on balance,if they think the death penalty is warranted, they can return a verdict of death. But morespecifically than that, I don’t think we can answer. [COUNSEL]: That soundslike a reasonable response to their question, also. I just don’t think we cantell them just a short “yes.” I think that’s — I think we would be making a mistake in doing that. This is really their decision, and I think on balance they have to weigh this mitigation. . (6RT 1317.) After considering the arguments from both sides, the court reasoned as follows: THE COURT: Well, I think we haveto start from the position that the guilt phase jury has already found the special circumstanceto betrue; that the second jury, in this case, the penalty phase jury, is not charged with the duty ofre- determining the issue as to whether or not the special circumstanceis true or not. In other words, they don’t re-decide the special circumstance. 63 Andit would appear to me that sincethis jury, the penalty phase jury, then doesn’t re-decide the special circumstance allegation, which was previously foundto betrue bythe [guilt] phase jury, that even thoughthis jury may have some lingering or residual doubt as to perhaps one of the two murders, it would appearfrom their note that. . . they feel that the circumstances of at least one of the two murders, the factor (a) circumstances, would substantially outweigh the mitigating factors andin their opinion the death penalty would be appropriatein this case. The court concluded bystating that it believed the correct answerto the jury’s question was“yes,”but that it was willing to reword the answerto makeit less “abrupt.” (6RT 1318.) The prosecutor agreed with the court that the legally correct answer was“yes,” but expressed concern that doing so “will betelling [the jury] how they should vote.” The prosecutor suggested the following answer instead: “‘All things considered, including whatever doubt you may have on one of the murders,all things considered, you can choose oneorthe other.’” Appellant’s counsel agreed that the suggested answer was appropriate. (6RT 1319.) The jury was reconvened and instructed as follows: THE COURT: ... Thatall things consideredin this case, in the context of your question,the jury still may choose which of the two penalties is appropriate in this case. The answeris yes. Does that answer your question? THE FOREPERSON:I believe so. (6RT 1320.) The jury resumeddeliberationsat 10:28 a.m. and at 10:45 a.m.,it returned a verdict of.death. (6RT 1320-1321.) While pollingthe jury, Juror No.1 indicated that death was not her verdict. The court noted that 64 there was no unanimousverdict, returned the verdict forms to the jury and asked the jurors to go back to deliberations. (6RT 1322.) At 1:50 p.m., the jury requested the readback of Slaughter’s testimony. As the court was getting ready for the read back, the jury submitted another note stating that the testimony wasno longer needed. (6RT 1324.) The parties and the court agreed that from the jury’s latest note, it appeared that the jury had resolved whatever concern it might have had regarding Slaughter’s testimony, and that the jury should resume deliberations. (6RT 1324-1325.) At 2:08 p.m., the jury returned a verdict of death. (6RT 1325-1326.) B. The Trial Court Properly Refused To Give Lingering DoubtInstructions Appellant argues the trial court erred whenit refused to instruct the penalty phase jury on the issue of lingering doubt, especially after the jury’s written inquiry on the second day of deliberations. (AOB 170-214.) This Court has “repeatedly [] rejected claimsthat, undereither state or federal law,a trial court must instruct concerning lingering doubt, whether on the court’s own motionor in responseto aspecific request.” (Peoplev. Robinson (2005) 37 Cal.4th 592, 635.) In Robinson, this Court could “perceive no reason to reconsider those determinations here,” and observed that “consistent with defense counsel’s closing arguments, the jury was allowed under the factor (k) instruction to considerin mitigation any lingering doubt it may have had.” (Ibid.) Here, the evidence presentedat the penalty phase retrial by appellant regarding the Mendez/Vasquez shooting exceeded the evidence he presentedat the guilt phase. Appellant wasable to present even more evidence of lingering doubt through Galindo’s testimony, which was unavailable at the timeof the guilt phase trial. At the conclusion ofthe 65 penalty phaseretrial, the jury was instructed with factor (k) under CALJIC No. 8.85, whichstated that it should consider “[a]ny other circumstance which extenuates the gravity of the crime even thoughit is not a legal excuse for the crime .. . as a basis for a sentence less than death... .” (10CT 2865-2866.) Counsel argued extensively during closing arguments that any lingering doubt the jury might have regarding appellant’s guilt could be used as a mitigating factor in deciding whether to impose the death penalty. (6RT 1284-1293.) Since the jury was allowed to consider lingering doubt regarding the Mendez/Vasquez shooting as a mitigating factor based on counsel’s closing arguments and capital sentencing factor (k), the trial court did not err in refusing to give special lingering doubt instructions. (See People v. Robinson, supra, 37 Cal.4th at p. 635.) Appellant suggests that a lingering doubt instruction.was required because the jury’s question showed it “did not understandthat residual doubt could be weighedin mitigation.” (AOB 181.) To the contrary, the jury’s question demonstrated that it was well aware of the mitigating value of lingering doubt because the inquiry was whether the existence of lingering doubt on the Mendez/Vasquez shooting would automatically preclude a verdict of death.| Appellant relies on People v. Cox (1991) 53 Cal.3d 618, disapproved on another ground in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22, for the proposition that the evidencein this case required the court to instruct on lingering doubt. (AOB 187-179, 181-182.) However,“[t]he Cox dictum that a lingering doubt instruction may be required as a matter of statutory law, which itself was based on dictum from [People v.] Thompson, supra, 45 Cal.3d 86], has been put to rest. [This Court] ha[s] repeatedly heldthat instruction on lingering doubtis not required by state law, andthat the standardinstructions on capital sentencing factors, together with counsel’s closing argument, are sufficient to convey the 66 lingering doubtconceptto the jury.” (Peoplev. Hartsch, supra, 49 Cal.4th at pp. 512-513, originalitalics.) : Appellants have put forward nobasis in law, fact or logic which would distinguish the instant case, or suggest that the Court should revisit this issue and cometo a contrary conclusion to that result repeatedly reachedin everyother case in whichthis issue has been consistently rejected. (See also People v. Avila, supra, 38 Cal.4th at p. 615; Peoplev. Boyer, supra, 38 Cal.4th at pp. 487-488; Peoplev. Huggins, supra, 38 Cal.4th at p. 251; People v. Harris (2005) 37 Cal.4th 547, 579; People v. Gray (2005) 37 Cal.4th 168, 231-233; People v. Ward (2005) 36 Cal.4th 186, 219-221; People v. Panah (2005) 35 Cal.4th 395, 497; People v. Valdez (2004) 32 Cal.4th 73, 129,fn. 28.) C. The Trial Court’s Response To vary’s Written Inquiry WasProper -Appellant’s argumentthat the trial court inadequately responded to the jury’s written inquiry should berejected as well. Initially, appellant waived any claim oferror pertaining to the court’s responseto the jury’s inquiry because defense counsel “both participated in the formulation of a response andaffirmatively approved of the response ultimately given.” (People v. Jennings (2010) 50 Cal.4th 616, 683; see People v. Hamilton (2009) 45 Cal.4th 863, 949-950 (Hamilton) [claim waived where counsel and defendant both agreedto the court’s response]; People v. Rodrigues (1994) 8 Cal.4th 1060, 1193 [claim of error waived when defendant both suggested and consentedto the responses given bythe court to the jury’s questions].) Even though thetrial court in this case did not give the exact agreed-upon wording of the instruction, counsel essentially agreed to the substanceof the given instruction. Therefore, any claim pertaining to the 67 propriety of the court’s response to the jury’s question has been waived. However, even if the claim has not been waived,it is without merit. When a deliberating jury desires to be informed on any point of law arisingin a case, the jury must be returnedto court and the information required must be given. (§ 1138.) The court has a primary duty to help the jury understand the legal principles it is asked to apply. (Peoplev. | Beardslee (1991) 53 Cal.3d 68, 97.) But elaboration uponthe original instructions is not necessarily required. (/bid.) Where the original instructions are themselves full and complete, the court has discretion to determine what additional explanations are needed. (Jbid.) A trial court’s decision as to what informationis sufficientto satisfy the jury’s request for information is reviewed for abuse ofdiscretion. (People v. Smithey (1999) 20 Cal.4th 936, 985.) | There was no abuse of discretion here. The court’s responseto the jury’s question waslegally correct. This Court has repeatedly stated that “in the penalty phase, the jury merely weighsthe factors enumerated in section 190.3 and determines “whether a defendant eligible for the death penalty should in fact receive that sentence.” (Tuilaepa v. California (1994) 512 U.S, 967, 972 [114 S.Ct. 2630, 129 L.Ed.2d 750].) Nosingle factor therefore determines which penalty — death orlife without the possibility of parole — is appropriate.’” (People v. Virgil (2011) 51 Cal.4th 1210, 1278-1279, citing People v. Prieto (2003) 30 Cal.4th 226, 263.) The jury in this case inquired as to whetherit could impose the death penalty if they had “some doubt”as to one of appellant’s murder convictions. (6RT 1316.) Since any lingering doubtas to the circumstances of appellant’s crimesis just one of the factors the jury should consider in determining the appropriate penalty, the legally correct answer to the jury’s question was and still is “yes.” Taken together with the already-given instruction under CALJIC No. 8.85, which laid out the factors to be considered in 68 determining appellant’s penalty, the court’s response advised the Jury of the applicable law. Therefore, no abuse of discretion occurred. D. The Trial Court’s Instructions That Appellant’s Guilt WasConclusively Proven Did Not Direct A Verdict Of Death Appellant also complainsthat the trial court’s instructions during voir dire and before deliberations instructing the penalty phaseretrial jury that appellant’s guilt was “conclusively proven,” combined with the court’s responseto the jury’s written inquiry, effectively directed a verdict of death. (AOB 194-205.) This argument is meritless. In People v. DeSantis (1992) 2 Cal.4th 1198,thetrial court instructed the penalty phase jury that it could consider the defendant’s “claim ofinnocence. . . in terms of possible doubt about his complicity in the crime... ,” but declined to give two supplemental special instructions on lingering doubt requested by defense counsel. Duringvoir dire and while answering a question from the jury, the trial court also instructedthat ““the issue of guilt is not to be reconsidered by[the jury],’” and that“the previous ‘jury decided that Mr. DeSantis wasin fact guilty of the crime.’” (/d. at pp. 1236-1237.) On appeal, this Court rejected the defendant’s _ Suggestion that the jury instructions somehow “removed the lingering doubt question from the jury” as follows: [T]o the extent that the court’s rulings and the prosecutor’s comments merely remindedthe jury that it was not to redetermine guilt, those actions did not removethe question of lingering doubt from the jury, but only told it the truth: that in the penalty phase defendant’s guilt was to be conclusively presumed as a matter of law becausethetrier of fact had so found in the guilt phase. (See People v. Gonzalez (1990) 51 Cal.3d 1179, 1235....) To the extent they dwelt on the point that defendant’s guilt had been established, therefore, we do not consign the court’s rulings or the prosecutor’s actions to the rubric of extinguishing lingering doubt, and accordingly find no 69 error. Indeed, defendant conceded during closing arguments that the prior jury’s determinations, includingits specific findings that defendant had personally, intentionally and premeditatedly killed Edward Davies, were not subjectto revisitation and that he was guilty of the crime. (Seeid. at pp. 1234-1235.) (id. at p. 1238.) Similar to the defendant in DeSantis, appellant now complainsthat the trial court’s instructions to the jury that his guilt had been conclusively proven and the court’s responseto the jury question precludedthe jury from considering any lingering doubt and effectively directed a verdict of death. However, as this Court stated in DeSantis, the jury was simply told the truth, i.e., that the penalty phase jury wasnot there to determine guilt or innocence,but just the appropriate penalty after consideringall the mitigating evidence. Furthermore, there was no directed verdict in the court’s answerto the jury question becausethe court correctly instructed them that no juror wasaffirmatively precluded from returning a death verdict if he or she had a lingering doubt as to whether appellant committed one of the murders but could consider everything in the case in choosing the appropriate penalty. Finally, as in DeSantis, appellant’s counsel repeatedly conceded during the closing arguments that appellant had already been found guilty of the murders and that he was there just to ask the jury “not to kill him.” (6RT 1280-1281.) Therefore, neither the responseto the jury’s question northe instruction that appellant’s guilt had been conclusively proven improperly coerced the jury to return a verdict of death. (See People v. Cain (1995) 10 Cal.4th 1, 66 [“the penalty phase jury ... must perforce ‘accept’ the guilt phase verdicts and findings”].) 70 EK. The Trial Court Was Not Required To Instruct The Jury About The First Penalty Phase Mistrial And Galindo’s Absence During Guilt Phase Appellant also contendsthat the trial court committed error whenit failed to instruct the penalty phaseretrial jury aboutthefirst penalty phase jury’s deadlock, its numerical vote, and the absence of Galindo’s testimony during the guilt phase. (AOB 205-214.) None of these arguments are meritorious. As a threshold matter, appellant has forfeited any claim of instructional error regarding the penalty phase mistrial and missing witness testimony forfailure to specifically request the desired pinpointinstructions at trial. Thetrial court is required to instruct only on generalprinciples of law that are necessary to the jury’s understanding ofthe case. Instructions on specific points or special theories that may be applicable to a defendant’s particular case must be requested. (People v. Saille (1991) 54 Cal.3d 1103, 1119-1120.) Here, appellant never requested thetrial court to instruct the penalty phaseretrial jury regardingthefirst penalty phase jury’s deadlock,its numerical vote, and the fact that Galindo had nottestified during the guilt phase. Therefore, this issue has been forfeited on appeal. (People v. Jennings, supra, 50 Cal4th at p. 675 [failure to request pinpoint instruction forfeited the issue on appeal].) Even assuming there wasno forfeiture, the trial court did noterr in failing to instruct the jury as appellant desired. As appellant acknowledges (AOB 208-209), this Court has repeatedly stated that “the fact of a first jury’s deadlock,or its numerical vote, is irrelevant to the issues before the jury on a penaltyretrial.” (People v. Hawkins, supra, 10 Cal.4th at p. 968; | see People v. Anderson (1990) 52 Cal.3d 453, 467; People.v. Thompson (1990) 50 Cal.3d 134, 178.) Appellantfails to provide any compelling reason to deviate from this reasoning. 71 Moreover, although Galindo’s testimony was relevant and proper mitigating evidence regarding the circumstances of the crime to be considered at the penalty phase (see People v. Gay (2008) 42 Cal.4th 1195, 1221-1223), the fact of his absence during the guilt phase wascertainly not relevant. As the jury in this case wasinstructed, the proper function of a penalty phase jury is to determine the appropriate sentence ofeither death or life in prison without the possibility of parole after weighing the aggravating and mitigating factors as set forth in section 190.3. (1OCT 2864-2866, 2870-2871.) Whether Galindo actually testified during the guilt phase wasirrelevant as the penalty phase jury did not require such information for his testimony to be considered undersection 190.3, subdivision (a). Indeed, had counsel believed that the fact of Galindo’s non-testimony wasa relevant and important mitigating factor, he could have easily elicited such information during Galindo’s testimony, which he did not. Therefore, appellant’s claim should be rejected. VIL.THE TRIAL COURT DID NOT COERCE A VERDICT DURING THE PENALTY PHASE RETRIAL BY ORDERING THEJURY TO CONTINUE THE DELIBERATIONS Appellant contends that the trial court coerced a verdict at the penalty phaseretrial whenit sent the jury back for further deliberations after finding out during polling that the verdict was not unanimous. (AOB 215-222.) Respondentdisagrees. A. Factual Background On the second day of deliberations, at approximately 10:45 a.m., the court was advised that the penalty phase jury had reached a verdict. (1OCT 2847-2848; 20CT 5638-5639; 6RT 1320-1321.) After the jury and the | alternates were brought into. the courtroom,the court read aloud a verdict of 72 death signed and dated by the jury foreman. (6RT 1321.) When the court inquired to the jury as a whole whetherthis was the correct verdict, the jury collectively answeredin the affirmative. (6RT 1322.) The court proceededto poll each juror individually as to whether the verdict of death was indeedhis or her verdict. When the court inquired Juror No. 1 whether this was her verdict, the juror responded,“No.” The court repeated the question to Juror No.1 andthe juror again answered, “No.” The court continued to poll Juror Nos. 2 to 6 whom all answered in the affirmative. The court stopped the individual polling after Juror No.6, stating, “I don’t need to go any further. It appears that we do not have a unanimousverdict. I’m going to return the verdict form to you and ask the jurors to go back into deliberations, please.” (6RT 1322.) At 2:08 p.m., the jury returned a verdict of death for the second time. The jury collectively and individually confirmedthat the verdict was correct. (6RT 1326-1327.) B. The Trial Court Did Not AbuseIts Discretion In Returning The Jury For Further Deliberations Initially, appellant forfeited his claim for failure to assert an objection below. Theright to request the jury be polled, to assert any defects in the mannerofpolling or to request correctionsorclarifications in jury polling may be forfeited by the defendant’s failure to object in thetrial court. (People v. Wright (1990) 52 Cal.3d 367, 415, disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 458-459; People v. Flynn (1963) 217 Cal.App.2d 289, 294-295.) Asto polling errors, the defendant “cannotsit idly by and then claim error on appeal whenthe inadvertence could have readily been corrected upon his merely directing the attention of the court thereto.” (People v. Lessard (1962) 58 Cal.2d 447, 452.) Since appellant failed to voice any objection to the 73 court’s decision to return the jury for further deliberations, this claim has been forfeited on appeal. Even assuming there wasnoforfeiture, there was no abuse of discretion. Every criminal defendantis entitled to a unanimous'jury verdict. (Cal. Const., art. I, § 16; Wheeler, supra, 22 Cal.3d at p. 265.) To assure that the verdict expresses the unanimous judgmentofall jurors, any Juror is empoweredto declare, up to the last moment, that he or she dissents from the verdict. (Chipman v. Superior Court (1982) 131 Cal.App.3d 263, 266.) Accordingly, after a written verdict is announced,either party may request a polling of each juror to determine whetherthe verdict is his or her verdict. If any juror answers “in the negative, the jury must be sent out for further deliberation.” (§ 1163.) The polling procedure allowsthe court to determine whether the written verdict :form is the “true verdict” of every juror, or the “product of mistake or unduly precipitous judgment.” (People v. Thornton (1984) 155 Cal.App.3d 845, 858-859.) The trial court’s decision to orderor not order further deliberation pursuantto section 1163 is reviewed for abuse of discretion. (See People v. Superior Court (Thomas) (1967) 67 Cal.2d 929, 932-933; People v. Wattier (1996) 51 Cal.App.4th 948, 955-956.) Here, the trial court was in the best position to determine whether the jJury’s verdict truly reflected Juror No. 1’s individual verdictor not. “Where,as here, a juror makes equivocal or conflicting statements as to whether he has assented to the verdict freely and voluntarily, a direct question of fact within the determination ofthetrial judge is presented. Thetrial judge has the opportunityto observe the subtle factors of demeanor and tone of voice which mark the distinction between acquiescence and evasion ofindividual choice.” (People v. Superior Court (Thomas), supra, 67 Cal.2d at p. 932; see also People v. Carrasco (2008) 163 Cal.App.4th 978, 986-991.) It was obvious from Juror No. 1’s 74 unequivocal responses to the court’s inquiry that the death verdict was not her “true verdict.” Therefore, the court properly returnedthe jury for . further deliberations pursuantto section 1163. (People v. Thornton, supra, 155 Cal.App.3d at p. 859.) Appellant also argues that the trial court coerced Juror No.1 to changeher verdictto death byinstructing the jury that a unanimousverdict wasneededjust before sending the jury back for further deliberations. Appellant adds that the court instead should havecautioned the jury that “no juror should surrenderhis or her individual judgmentand conscience, even if this meant no unanimousdecision could be reached,” and that “there wasno necessity that they reach any verdict.” (AOB 216-217, original italics.) Appellant’s argumentis based on a faulty assumptionthat Juror No. | was the single holdout juror against a death verdict. (AOB 215, 217.) However, since the court stopped the individualpolling after Juror No.6,it -is impossible from this record to determine how manyotherjurors had second thoughts about their death verdict. It is equally possible that Juror No. | was not a hold-out juror, but simply wanted to reassure herself about the momentouslife and death decision she was making by discussing the matter one moretime. In any event, the jury, including Juror’No. 1, was fully aware of the unanimity rule even before they began deliberating because the court had instructed that “[i]n order to make a determination asto the penalty,all twelve jurors must agree.” (10CT 2871.) More importantly, the jurors were also instructedthat “[e]ach [juror] must decidethe case for yourself” and that they should “not hesitate to change an opinionif [they] are convincedit is wrong.” (10CT 2874.) The jury is presumed to have followed the court’s instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) In lightof the instructionsalready given, no further instructions 75 were neededprior to sending the jury back for further deliberations. There was no coercion and no abuseof discretion occurred. IX. THE TRIAL COURT PROPERLY REFUSED APPELLANT’S PROPOSED PINPOINT INSTRUCTIONS Appellant contends that thetrial court erred in refusing to instruct the jury with two separate special instructions. (AOB 219-225.) Respondentdisagrees. | First, appellant argues that the jury should have beeninstructed that the law has no preference “for the punishmentof death” andthat the penalty decision is the sole province of-the jury. (AOB 219 [Arg. IX].) This Court has already considered and rejected this argument in People v. Earp (1999) 20 Cal.4th 826, in which this very same proposedinstruction was found to be “misleading and argumentative.” (/d. at p. 903.) The Court revisited this issue again in People v. Watson (2008) 43 Cal.4th 652 (Watson), and found that there was noerror in refusing to give this instruction because in light of the other instructions given, “there was no room for the jury to speculate that the laws of the State of California had a preference as to penalty. Rather, the jurors certainly must have understood that the decision wasleft to their sole discretion.” (dd. at p. 699.) As appellant cannot provide any compelling reason to deviate from the above decisions, this argument should be similarly rejected. Second, appellant argues that the jury should have been instructed not to consider the deterrent value and monetary cost of death penalty. (AOB 223-225 [Arg. X].) Again, this Court has repeatedly rejected similar claims oferror for failure to give such an instruction. (See People v. Davis (2009) 46 Cal.4th 539, 621 [instruction was unnecessary in light of other instructionssetting forth proper factors for consideration]; People v. Welch 76 (1999) 20 Cal.4th 701, 765-766 [same].) Therefore, appellant’s claim shouldalso berejected. X. THE USE OF CALJIC NO.17.41.1 DID NOT VIOLATE APPELLANT’S CONSTITUTIONAL RIGHTS Appellant contends that the trial court’s instruction with CALJIC No. 17.41.1 infringed upon his state and federal constitutional rights to trial by a jury that engaged in free and open deliberationsin reaching a unanimousverdict. (AOB 226-229.) Respondent submits appellant’s contention is foreclosed by this Court’s express holdingto the contrary in People v. Engelman (2002) 28 Cal.4th 436, | Both the guilt phase and penalty phaseretrial juries were instructed with CALJIC No. 17.41.1 as follows: The integrity of a trial requires that jurors, at all times during their deliberations, conduct themselves as required by these instructions. Accordingly, should it occurthat any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on any improperbasis,it is the obligation of the other jurors to immediately advise the Court of the situation. No objections were asserted by defense. (2CT 556; 10CT 2876; 4RT 694; 6RT 1311.) | Initially, appellant forfeited his right to raise this claim on appeal because hefailed to object at trial and the instruction did not affect his substantial rights. (See People v. Elam (2001) 91 Cal.App.4th 298, 311 [failure to object to CALJIC No. 17.41.1 forfeited the issue on appeal].) However, even assuming there wasno forfeiture, the claim should be rejected on its merits. As appellant acknowledges (AOB 226), this Court already rejected the same argument in People v. Engelman, supra, 28 Cal.4th 436. Although this Court directed that CALJIC No. 17.41.1 should no longer be 77 given dueto the risk that the instruction could potentially interfere with a jury’s deliberative process, the Court found no error in the giving of the instruction and ruledthatit “does not infringe upon [a] defendant’s federal or state constitutionalrightto trial by jury or his state constitutional rightto a unanimousverdict[.]” (/d. at pp. 439-440, 449; see People v. Brady (2010) 50 Cal.4th 547, 587 [rejecting similar claim that the instruction violates a defendant’s federal constitutional rights]; People v. Wilson (2008) 44 Cal.4th 758, 805-806 [same].) Appellantfails to provide any compelling reason to revisit this issue. Therefore, appellant’s claimshould be rejected. XI. APPELLANT'S PENALTY PHASE RETRIAL DID NOT VIOLATE HIS CONSTITUTIONAL RIGHTS Appellant contendsthat hispenalty phaseretrial violated various constitutional rights, primarily based on analleged violation ofhis Eighth Amendmentright against cruel and unusual punishment, becauseCalifornia is one of a minority ofstates that permits a penalty phase retrial whena first jury cannot reach a unanimousdecision. (AOB 230-234.) Appellant concedes that the Supreme Court has foundthat a penalty phaseretrialis not a double jeopardy violation. (AOB 233-234,citing Sattazahnv. Pennsylvania (2003) 537 U.S. 101, 106-110 [123 S.Ct. 732, 154 L.Ed.2d 588].) This Court has also rejected similar constitutional challenges. (See People v. Taylor, supra, 48 Cal.4th at p. 634; People v. Gurule (2002) 28 Cal.4th 557, 645-646.) Indeed, the trial court had no discretion to do anything other than select a new jury for a new penalty phase. (Peoplev. Thompson, supra, 50 Cal.3d at pp. 176-177, citing § 190.4, subd. (b).) These decisions appropriately resolve this issue and appellant’s arguments should be rejected accordingly. 78 XH. THE JURYWAS PROPERLY INSTRUCTED WITH CALJIC NO.8.85 Appellant claimsthat before instructing the jury with CALJIC No, 8.85, the trial court should have deleted the inapplicable factors and specified whether each was aggravating, mitigating, or could be considered as either. (AOB 235-243.) As appellant acknowledges (AOB 235),his arguments have already been rejected by this Court. First, this Court has repeatedly heldthatthe trial court is not required to delete the inapplicable factors before instructing with CALJIC No.8.85 oeebecause “‘the jury is capable of deciding foritself which factors are “applicable”in a particular case.’” (People v. Thomas (2011) 51 Cal.4th 449, 505, citing People v. Ghent (1987) 43 Cal.3d 739, 777; see Peoplev. Perry (2006) 38 Cal.4th 302, 3 19; People v. Moon, supra, 37 Cal.4th at p. 42; People v. Duncan (1991) 53 Cal.3d 955, 979.) Second,thetrial court is under no obligation to specify whichfactors listed in section 190.3 are aggravating or mitigating. (See People v. Rogers (2009) 46 Cal.4th 1136, 1178-1179; People v. Jones (2003) 30 Cal.4th 1084, 1129; People v. Earp, supra, 20:Cal.4that pp. 898-899; People v. Musselwhite (1998) 17 Cal.4th 1216, 1268.) Appellant offers no persuasive reason to reconsider these decisions. Therefore, this claim should be rejected. XIII.THE TRIAL COURT PROPERLY INSTRUCTED THE JURY WITH CALJIC NO.8.88 Appellant argues that the trial court’s use of CALJIC No. 8.88 violated his constitutionalrights. (AOB 244-254.) To the extent appellant did not requestthe specific modifications alleged here, he has forfeited his claim on appeal. (People v. Daya (1994) 29 Cal.App.4th 697, 714 (“defendantisnot entitled to remain muteattrial and scream foul on appeal 79 for the court’s failure to expand, modify, and refine standardized jury instructions”].) In any event, as appellant recognizes (AOB 245), CALJIC No.8.88 has been found to be constitutional (People v. Moon, supra, 37 Cal.4th at pp. 41-42; People v. Crew (2003) 31 Cal.4th 822, 858), and this Court has rejected all of appellant’s challenges to the standard instruction (People v. Ochoa (2003) 26 Cal.4th 398, 452, abrogated on other grounds in People v. Coombs (2004) 34 Cal.4th 821, 860; People v. Johnson (1993) 6 Cal.4th 1, 52, overruled on another ground in People v. Rogers (2006) 39 Cal.4th 826, 879). Indeed, the language of CALJIC No.8.88 is not unconstitutionally vague;it adequately conveys the weighing process andis consistent with section 190.3. (People v. Chatman, supra, 38 Cal.4th at p. 409; People v. Smith (2006) 35 Cal.4th 334, 370; People v. Davenport (1995) 11 Cal.4th 1171, 1231, overruled on another ground in People v. Griffin, supra, 33 Cal.4th at p. 555, fn. 5.) The instruction “{i]s not unconstitutional for failing to inform the jury that if it finds the circumstances in mitigation outweigh those in aggravation, it is required to impose a sentenceoflife without the possibility of parole [citation].” (People v. Moon, supra, 37 Cal.4th at p. 42.) The instruction informs the jury regarding the proper weighing of aggravation andmitigation to determine whetherdeath orlife without parole is warranted. (People v. Perry, supra, 38 Cal.4th at p. 320; People v. Smith, supra, 35 Cal.4th at p. 370.) The “so substantial” language does not create a presumption for death. (People v. Salcido . (2008) 44 Cal.4th 93, 163; People v. Maury, supra, 30 Cal.4th at p. 440.) Rather, it properly admonishesthe jury “to determine whetherthe balance of aggravation andmitigation makes death the appropriate penalty.” (People v. Arias, supra, 13 Cal.4th at p. 171.) “The statutory language referring to aggravating and mitigating circumstances is not vague or ambiguous. [Citations.]” (People v. Salcido, supra, 44 Cal.4th at p. 164.) 80 Appellant has not provided any reason for this Court to depart from its past decisions. Accordingly, appellant’s claim must be rejected. XIV. THE SPECIAL CIRCUMSTANCE OF MULTIPLE MURDERDID NOT VIOLATE APPELLANT’S EIGHTH AMENDMENTRIGHTS Appellant claimsthat the multiple murder special circumstance violates the Eighth Amendmentbecauseit fails to appropriately narrow the class ofpersonseligible for the death penalty. (AOB 255-259.) As appellant concedes (AOB 255), this Court has repeatedly rejected similar Eighth Amendmentchallenges to the multiple murder special circumstance in the-past. (See People v. Loker (2008) 44 Cal.4th 691, 755; Peoplev. Stevens (2007) 41 Cal.4th 182, 211; People v. Rogers, supra, 39 Cal.4th at p. 893.) Since appellant offers no compelling reason requiring reconsideration ofthis issue, the instant claim should be rejected. XV. THE IMPOSITION OF DEATH PENALTY DOES NOT VIOLATE APPELLANT’S EIGHTH AMENDMENT RIGHTS Appellant claims that California’s criminal justice system is too unreliable to allow the imposition of death penalty. (AOB 260-275.) In essence, appellant appears to argue that underthe Eighth Amendment, death sentences should be affirmed only if guilt is proven beyondall doubt. However, appellant has not cited, and respondentis unaware of, any controlling United States orCalifornia Supreme Court authority requiring proof beyondall doubt in capital cases. To the contrary, the United States Supreme Court expressly rejected such argument in In re Winship (1970) 397 U.S. 358, 364 [90 S.Ct. 1068, 25 L.Ed.2d 368], stating that the standard required to convict a criminal defendantis “proof beyond a reasonable doubt.” 81 In support of his argument, appellant againcites to the eyewitness identification evidence andreiterates his position that he was misidentified as the shooter. (AOB 272-274.) As previously demonstrated, the jury was presented with substantial evidence that appellant was indeed the gunman in both shooting incidents, and there was no wrongful conviction. (See Args. I.C, IIB,IIB, ante.) Since appellant was sentencedto death after the jury found him guilty of his crimes beyond a reasonable doubt based on substantial evidence of guilt, and after he was permitted to presentall lingering doubtevidenceat his penalty phaseretrial, there is no Eighth Amendmentviolation here. Accordingly, appellant’s claim is without merit and should berejected. XVI. CALIFORNIA’S DEATH PENALTY LAW COMPORTS WITH THE UNITED STATESCONSTITUTION Appellantraises several federal constitutional challengesto California’s death penalty that he acknowledges have already been rejected by this Court. (AOB 276-310.) Specifically, appellant presents the following federal constitutional issues: (1) section 190.2 is impermissibly broad (AOB 278-279); (2) section 190.3, factor (a), allows for arbitrary and capricious imposition ofthe death penalty (AOB 280-282); (3) California’s death penalty does not contain adequate safeguards becausethe jury does not need to unanimously find beyond a reasonable doubtthat aggravating circumstancesexist or outweigh mitigating factors, it does not require that the death sentence be based on written findings regarding the aggravating factors, intercase proportionality review is not permitted, jury unanimityis not required for unadjudicated criminal activity to Serve as an aggravating circumstance, the use of restrictive adjectives such as “extreme” and “substantial” acted as “barriers” to the mitigating circumstances appellant could present, andit fails to require an instruction that statutory mitigating 82 factors are relevantsolely as mitigation (AOB 282-305); (4) California’s sentencing scheme violates the EqualProtection Clause ofthe United States Constitution because it denies procedural safeguards to capital defendants that are afforded to non-capital defendants (AOB 305-308); and (5) . California’s use ofthe death penalty violates international norms of humanity and decency, and'imposition of the penalty violates the Eighth and Fourteenth Amendments (AOB 308-310). As set forth by this Court in the cases that will be cited with each argumentbelow,all of appellant’s constitutional challenges to his death sentence and/or California’s death penalty generally should be rejected. This Court has repeatedly rejected appellant’s constitutional challenges to California’s death penalty, finding as follows. First, California’s death penalty law and the special circumstancesset forth in the law adequately narrowsthe scope of death-eligible defendants. (People v. Martinez (2010) 47 Cal.4th 911, 967 (Martinez); Watson, supra, 43 Cal.4th at p. 703; People v. Perry, supra, 38 Cal.4th at p. 322.) Second, section 190.3, factor (a), which permits the jury to consider circumstances of the crime, does notresult in the arbitrary or capricious imposition of death. (Martinez, supra, 47 Cal.4th at p. 967; Hamilton, supra, 45 Cal.4th at p. 960; Watson, supra, 43 Cal.4th at p. 703.) Third, California’s death penalty law contains adequate safeguards. The law “does not require that the jury achieve unanimityasto aggravating circumstancesorthat it be given burden of proofor standard ofproof instructions for finding the existence of aggravating factors, finding that aggravating factors outweigh mitigating factors, or finding that death is the appropriate penalty.” (Martinez, supra, 47 Cal.4th at p. 967; Hamilton, supra, 45 Cal.4th at p. 960; see also People v. Welch, supra, 20 Cal.4th at p. 767, quoting People v. Sanchez ( 1995) 12 Cal.4th 1, 81 [“Unlike the determination of guilt, ‘the sentencing function is inherently moral and 83 normative, not factual’ [citation] and thus ‘not susceptible to a burden-of- proof quantification’”].) The United States Supreme Court’s rulings in Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435], Ring v. Arizona (2002) 536 U.S. 584 [122 S.Ct. 2428, 153 L.Ed.2d 556], Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403], United States v. Booker (2005) 543 U.S. 220 [125 S.Ct. 738, 160 L.Ed.2d 621], or their progeny, have not affected the foregoing conclusions. (Martinez, supra, 47 Cal.4th at p. 967,citing Peoplev. Bunyard (2009) 45 Cal.4th 836, 858.) Written findings are also not required safeguards. (Martinez, supra, 47 Cal.4th at p. 967; Hamilton, supra, 45 Cal.4th at p. 960.) Intercase proportionality review is not required to render California’s death penalty constitutional. (bid.; Watson, supra, 43 Cal.4th at p. 704.) Underthe federal Constitution, the jury “properly may consider a defendant’s unadjudicated criminal activity and need not agree unanimously or beyond a reasonable doubtthat the defendant committed those acts.”*? (Martinez, supra, 47 Cal.4th at p. 967; see Watson, supra, 43 Cal.4th at p. 704.) Further, “[t]he use ofrestrictive adjectives, such as “extreme”and “substantial,”in the statute’s list of potential mitigating factors does‘ not renderit unconstitutional.” (Ibid.) Likewise, “[t]here is no constitutional obligation to instruct the jury to identify which factors are aggravating and which are mitigating, or to instructthe jury to restrict its consideration of evidencein this regard.” (Martinez, supra, 47 Cal.4th at p. 967; see Hamilton, supra, 45 Cal.4th at p. 961.) 3 Understate law, prior unadjudicated criminalactivity must be found beyond a reasonable doubtfor consideration at the penalty phase. (See People v. Williams, supra, 49 Cal.Ath at p. 459.) 84 Fourth, California’s sentencing scheme does not violate the equal protection clause by providing different procedural rights to capital and non-capital defendants because capital and non-capital defendants are not similarly situated. (Martinez, supra, 47 Cal.4th at p. 967;-#eople v. Riggs (2008) 44 Cal.4th 248, 330.) Finally, California’s use of the death penalty does notviolate international law or norms, and such normsdonotlimit application ofthe penalty only to the most extraordinary crimes. (Martinez, supra, 47 Cal.4th at p. 967; People v. Gutierrez (2009) 45 Cal.4th 789, 834; People v. Panah, supra, 35 Cal.4th at pp. 500-501.) Asappellant has failed to show any compelling reasonsforthis Court to depart from the above decisions, and has not shownthat the impact of California’s scheme taken as a wholedenied his constitutional rights, the instant claims should be rejected. XVII. THE METHODS OF EXECUTION DO NOT AFFECT THE VALIDITY OF APPELLANT’S DEATH PENALTY SENTENCE Appellant contends that the methods of execution used in California, including lethal injection, violate his federal constitutional rights. (AOB 311-321.) This Court has repeatedly ruled a challenge to the method of a future execution is not cognizable on appeal, because such a claim does not affect the validity of the judgment. (People v. Burney, supra, 47 Cal.4th at p. 270; People v. Demetrulias (2006) 39 Cal.4th 1, 45; People v. Snow (2003) 30 Cal.4th 43, 127-128; People v. Holt (1997) 15 Cal.4th 619,702; People-v. Bradford (1997) 14 Cal.4th 1005, 1058-1059; People v. Samoyoa (1997) 15 Cal.4th 795, 864.) Therefore,this claim should be rejected. 85 XVIII. THERE WAS NO CUMULATIVE ERROR Appellant contendsthat the cumulative effect of errors during the guilt and penalty phases requires reversal of the death verdict. (AOB 322- 325.) Respondent disagrees because there wasnoerror, and,to the extent there was error, appellant has failed to demonstrate prejudice. Moreover, whetherconsidered individually or for their cumulative effect, the alleged errors could not have affected the outcomeofthetrial. (See People v. Seaton (2001) 26 Cal.4th 598, 675, 691-692; People v. Ochoa,supra, 26 Cal.4th at p. 458: People v, Catlin (2001) 26 Cal.4th 81, 180.) Even a capital defendantis entitled only to a fair trial, not a perfect one. (People v. Cunningham (2001) 25 Cal.4th 926, 1009; People v. Box (2000) 23 Cal.4th 1153, 1214, 1219, disapproved on another groundin Martinez, supra, 47 Cal.4th at p. 948, fn. 10.) The record shows appellant receiveda fair trial. His claims of cumulative error should, therefore, be rejected. 86 CONCLUSION For the foregoing reasons, the judgmentshould beaffirmedinits entirety. Dated: September 22, 2011 Respectfully submitted, KAMALA D. HARRIS Attorney General of California DANER.GILLETTE Chief Assistant Attorney General SHARLENE A. HONNAKA Deputy A Deputy Attorney‘General Attorneysfor Resppndent LA2000XS0001 60683494.doc 87 CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S BRIEFuses a 13 point Times New Romanfont and contains 24,090 words. Dated: September22, 2011 KAMALAD. HARRIS Attorney General of California Attorneysfor Respondent DECLARATION OF SERVICE BY U.S. MAIL CAPITAL CASE Case Name: People v. Ennis Reed - No.: $082776 I declare: I am employedin the Office of the Attorney General,whichis the office of a memberof the California State Bar, at which member's direction this service is made. I am 18 years of age or older andnota party to this matter. Tam familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplacedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On September 23, 2011, I served the attached RESPONDENT’S BRIEFbyplacing a true copy thereof enclosed in a sealed envelope in the internal mail collection system at the Office of the Attorney General at 300 South Spring Street, Suite 1702, Los Angeles, CA 90013, addressed as follows: Gail Harper Robert Knowles Attorney at Law Deputy District Attorney P.O. Box 330057 L.A. County District Attorney's Office San Francisco, CA 94133 210 West Temple Street Los Angeles, CA 90012 Addie Lovelace John A, Clarke, Clerk of the Court Death Penalty Appeals Clerk Los Angeles Superior Court Los Angeles County Superior Court 111 N. Hill Street Clara Shortridge Foltz Justice Center Los Angeles, CA 90012 210 West Temple Street, Room M-3 For Deliveryto: Los Angeles, CA 90012 Honorable John Joseph Cheroske, Judge California Appellate Project Governor’s Office 101 Second Street, Suite 600 | Legal Affairs Secretary San Francisco, CA 94105 State Capitol First Floor - Sacramento, CA 95814 I declare underpenalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on September 23, 2011, at Los Angeles, California. E. Obeso hathOftar- Declarant Signature LA2000XS0001 /6068385 |.doc