PEOPLE v. GOMEZ

Respondent’s Brief

Cal.June 12, 2013

SUPREME COURTCOPY Jn the Supreme Court of the State of Caltfornta THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Vv. RUBEN P. GOMEZ, Defendant and Appellant. CAPITAL CASE Case No. 8087773 Los Angeles County Superior Court Case No. BA156930 The Honorable William R. Pounders, Judge RESPONDENT?’S BRIEF KAMALA D. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General LANCE E. WINTERS Senior Assistant Attorney General JAIME L. FUSTER Supervising Deputy Attorney General DAVID A. VOET Deputy Attorney General State Bar No. 182544 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 576-1338 — Fax: (213) 897-6496 Email: David.Voet@doj.ca.gov Attorneysfor Plaintiffand Respondent eA) PENALTY TABLE OF CONTENTS Page Statement of the Case.........ccsccecesceessteceseceeeecsceeeeesasseseessaaeeseeeeneesnsseenssseesees 1 Statement Of Facts .......cccccsscecsssscecsssseeceeseeesseeeseeeeesseessseeeeesseeesssesenserseseseeaaee 4 The ProSeCution ......cceeceeeecenesscneeesaeeeeceeenserseecssserscsssseesesecsseceeeeneneeenaeeseenaees 4 A. The Mexican Mafia.........cceeeceseeessssersseseeessesesesseeees 4 B. Appellant’s street gang and Mexican Mafia AFFILIATIONS 0... ceeeeeceeeteeeeneeceeeeecerneetesteeeeereeeeenseneenes 8 C. Codefendant Grajeda’s street gang and Mexican Mafia affiliations.........cceceeeseeeseeeeessseossseeersseneeseeaeee 9 D. Backgroundinformation ..........cce ee ceeseeereeeeeeeeeens 10 E. Counts 3, 4, and 5: appellant kidnaps, robs, and murders Rajandra Patel...teeenseteereeens 11 1. Patel’S SOM ......cc.cccsssesccesssseereesseeeeecessereeesteeeeens 11 2. The Police find Patel’s body...eieeeeeeees 12 3. Medical forensic evidence..........eeesecee scene 13 4, Witness three .......ccecesceeessreeseseseeseensessneeeeens 15 5. Angel Rodriguez....cesccccscesssssesseseeeeeeseeeeeeeeens 16 6. Firearm forensic eVidence.......... sees eeeeeeeees 17 FR, Counts 8 and 9: appellant murders Raul Luna......... 17 1. Luna’s brother........cccccecseeeeeeeenceeeererseeeeeseenens 17 2. Charles OF .......ccccccescecseseeeeseeeeeesseessneeeenenaaeeres 19 3, William Owen sssssssssesesssessssecssssssssseeeses 19 4, Police investigation........csscccseeseesseeseseeeeees 19 5. Evidence related to Luna’s cellular telephoneoeeeeee eeteesetseessseseeeeneeeeeerneees 20 G. Counts 6 and 7: the murder and robbery of Jesus Escareno (hung jury) 00... eeeeeeeeeeesseereeeerses 21 1. WItMESS ONC... eeeeeeesneeeeeeeeeeseenesnneneeseeeneees 21 2. Additional witnesses ..........eesscsseeesereseeseeres 23 TABLE OF CONTENTS (continued) Page 3. Escareno’s body is found... 24 4:~ Police investiQation..........ccccccseeeeseeeteeseeeeeees 24 5. ESCareno0’s SISCOL ......cceeeeeesreeceseeesseeenneeesneennees 25 6. Appellant’s spontaneousstatement............... 25 7. Firearm forensic CVIdENCE........ ccc cceeeeetereees 26 H. Counts 10 and 11: appellant murders Dunton ANG ACOSCA.....ceccccsesetecsesneceesceseseeseeecessaeeeseeenesesirererates 26 1. Events leading up to the double homicide..... 26 2. The double homicide .........cccccscceeseseeeeretees 31 3. The police investigatiOn........eceseseerreeee 32 4. Appellant’s arrest .....ccccccseseeecnrseseerentseseees 33 5. Codefendant Grajeda admits killing Dunton and Acosta oo... eccseeeeees seeesteeeeenees 34 6. Appellant admits he was the last person at Dunton’s apartment when Dunton and Acosta were murdered ........:cccceesceesenteeeteeeens 34 7. Acosta’s note to his Wife..........cecseeeeeseeretees 35 Additional police investigation and forensic CVIGENCE ........ cee eeeeessteeeesteeeeeteeeetens 36 I. Count 1: appellant robs Xavier Salcedo............0+ 38 1, Salcedo’s testiMONny........:ceccccessteessteeereereneees 38 2. Silvia Salcedo’s testiMONy........cssececeeeeeeees 40 J. Thepolice arrive at Salcedo’s hoMe......eseeeeseeeees 4] K. Evidence regarding appellant’s refusal to come CO COULT oo... ieeeccccesesseceeceeeeeetteseneneraeeeeeeeeeseeeeeterernaaaeees 41 The Defense......cccccceecccessssessscessesceseeseeetseeceeneeessesesseessuressnesesnsensaueseneenaeeeags 42 Prosecution’s Rebuttal .......ccccceseceseeesesseccnssseeeeseeersneeeerecaseeseeesessaeseenees 47 The Penalty Phase .......cecueccsonteesssstiustestassuscsssannesetessansensesessasasenssuseseessasiees 48 A. The prosecution .......csecsesssceseeneeiseeesseneeeeseeeeseneesens 48 il TABLE OF CONTENTS (continued) Page B. The defense .0.......eceescceseeessceesseeeeseesseesseecsseeseeesseees 52 ALBUMEN...cece eeeeeeeeseeeseteeseeceseeneeeeseeasesesseeessusessssesseeseeessesseseersnerneesags 56 A. Standard Of review 0... eccecccesseeceeeteeeseeeeseeeeseeneeens 56 B. Substantial evidence established that appellant II. IIL. IV. was guilty of murdering Lunain thefirst degree ..... 58 Substantial evidence supports appellant’s convictions for kidnapping, robbing, and murdering Patel...............00. 66 The prosecution presented substantial evidence that appellant murdered Acosta and Duntoninthefirst degree based on premeditation and deliberation.................. 71 A. Applicable law 00... eecsscsseesesereesseenseesenseneeseenens 71 B. The finding that appellant acted with premeditation and deliberation was supported by ample evidence of motive, planning, and the manner Of killing...eeeeetecsseeeseeeteessteesneeeeneeees 72 Appellant’s claim was forfeited; and in any case, the trial court never denied appellant of his constitutional right to self-representation ........ccceceeseteceseseteeseeteeeereeeeeeees 76 A. Relevant proceedings .........cceesesseeseseeesseeeeseeees 76 B. Appellant’s claim was forfeited because neither C. appellant nor Nardoni objected or raised any concern aboutthe trial court’s comments................. 80 Thetrial court preserved appellant’s sixth amendment rights .........ccsessseesenseeeeeeeeseesenseseeteesaes 82 Thetrial court properly denied appellant’s motion to sever the charges, and appellant has failed to establish a reasonable likelihood that he was prejudiced by joinder of the Charges........cceccesseecseteeseeseeetesteseeeeesnerteetees 87 A. Relevant proceedings ..........ccccsceeesceesssseeteeseeeeseeeres 88 B, Relevant law ........cccccsseceseeeceeseneeseseseereeseesneoesneeesesess 91 C. Thetrial court acted within its discretion ............0. 92 ili VI. VII. TABLE OF CONTENTS (continued) Page l. Cross-admissibility 0.0.00... cceceseesseeseeseeeteertes 93 2. The charges were not unusually likely to inflame the jury against appellant.................. 95 3. Joinder of the charges did not combine a “weak” case with a “strong”case as the evidence supporting all the offenses was strong or overwhelMiNg.........cceereererees 98 4. All the murder charges werecapital offenses, so joinder ofthe charges did not turn the matter into a capital case.......... 101 D. Appellanthasfailed to show the joinder actually resulted in gross unfairness amounting to a denial of due Process........csceeeresesreeeereteens 102 The decision to deny separate trial was well within the trial court’s discretion and appellant suffered no prejudice from a joint trial...terete 104 A. Appellant hasfailed to establish error or PPEJUCICE....ee scecseereseseeeetetereesererenseaseeeneenesrteenenens 104 Appellant’s willful refusal to attend his trial was relevant to show his consciousnessof guilt; the jury was properly instructed how to consider such evidence;the trial court did not commit misconduct by introducing such evidence sua sponte; and, any alleged Error WaS harmless ........e:csecceesssseseeesseeeeeesteeeeteerseeneeeeesens 108 A, Relevant proceedings........cccceeccsesetseesereeeestersenesens 108 B. Appellant’s claim was forfeited because he failed to make a specific and timely objection....... 111 C, Applicable law regarding relevance and admissibility pursuant to evidence code section 35ceeecescesscessecsecensecssceneeeseeseueseneeseeneeesseeneeenieesnenets 112 D. The challenged evidence was properly admitted to show appellant had a consciousnessof guilt ...... 113 E, Consciousness of guilt instructiOn .........: eee eeseeee 118 iv VII. IX. TABLE OF CONTENTS (continued) Page F, Appellant has failed to show judicial Misconduct OF Prejudice... eseesseeeseeeeereeeeees 119 appellant’s has forfeited most of his challenges to the expert testimony about the Mexican Mafia; thetrial court acted within its discretion to admit relevant evidence; and, in any case, appellant hasfailed to establish prejudice..........cccccseesscecesteeeeseeeeesecneerenneessetenaaes 122 A. Relevant proceedings 0.0... cceeseseesseeesseeenseeseserens 122 B. Appellant’s claims were almost entirely forfeited 0... eeccceceesneeseeeeeereessetecerensereseseeesasersaes 127 | C. Thetrial court acted within its broad discretion ..... 129 D. Any alleged error was harmless...........ceeeeeeees 132 Appellant’s crawford claim was forfeited because he failed to object based on the sixth amendment; Acosta’s note was not testimonial and therefore was admissible under Crawford; and in any case, the alleged error was harmless beyond a reasonable doubt..... 133 A. B. Relevant proceeding ......... ce eeseeeceresecsreeeeersseeeeeeey 133 Appellant’s claim was forfeited because he failed to object to the admission of Acosta’s note to his wife based on his sixth amendment right to COMfPONTATION ....... eee eeeeeeeeteeeeeeeeeeeeeeeeeenees 135 Acosta’s note wasnot testimonial under the sixth amendmentas interpreted in crawford and ItS PLOBCNY..... eee eeeeseeeseeecesseeeesseeeseseseseeseeensenesnees 136 The alleged error was harmless beyond a reasonable doubt 200.0... ec eeeeseeeeseecesseeeeeseenerseeses 139 XI. XII. TABLE OF CONTENTS (continued) Page Appellant’s claims are forfeited because hefailed to requestclarifying instructions; appellant has failed to establish a reasonable probability that the jurors misconstrued the court’s instructions regarding note taking and readbackoftestimony as appellant suggests; and, in any case, appellant has failed to establish any prejudice.0... cceseesereseteetereerectseneeeeneenes140 A. Relevant proceedings .........c:ccsceseeseeeretseeseerseensenes 140 B. Appellant’s claims of instructional error were forfeited because he failed to request a Clarifying iMStrUctiONn.......cccceseeteteeeteerettereeeeesees 144 C. Appellant has failed to show instructionalerror..... 145 D. Appellant has failed to showthe trial court’s instruction regarding the readback of testimony Was CITONeOUs.......... seseseseuseseseeseseeaeaeseeeaseeessereseees 148 E, Anyalleged error was harmless beyond a reasonable COubt .........cccccccceeeeeeescceesecceneveeseeeuaereseses 149 Appellant’s claims ofjudicial error were forfeited; the trial court’s comments during voir dire were not erroneous understate law or the federal constitution; and, appellant has failed to show he wasprejudiced by the alleged Crrors .....e.cccseseeeeteeeeeetereteeteeeeereesenenesseerteeaey 150 A. Relevant proceedings .......cccceseceserenerreesenstenereeeens 150 B. Appellant’s claims were forfeited...sees 151 C. Applicable Law .....cccccesessseseeereserssesreeseseenessenenens 154 D. Appellant’s Claim lacks MeTit ..........ceseecceeseeeeeeneeees 155 Appellant has failed to establish that the trial court erred by giving CALJIC No.8.71, and byfailing to give CALJIC No. 17.11; and,in any case, the alleged error was harmless beyond a reasonable doubt..............4 158 A. Relevant proceedings ........ccccssereseseeererteeeeseees 158 vi TABLE OF CONTENTS (continued) Page B. Appellant has failed to establish instructional CITOL ...eeceeeeneccecessneeeecsneeeceeseseeeceeeeneeeseseeeesenessneneeenes 160 XII. Appellant forfeited his constitutional challenges to CALJIC No. 17.41.1, and, in any case, this court has determined that giving this jury instruction does not violate a defendant’s constitutional rights...eee 165 XIV. This court has previously rejected appellant’s claims of instructionalerror at the guilt phase .......eeeee eeeees 167 XV. There was overwhelming evidence that patel was kidnapped, as conceded by defense counsel, so the use of the 1990 revision of CALJIC No. 9.50, while in error, was harmless beyond a reasonable doubt................ 169 XVI. Theinstructions defining simple kidnapping were not unconstitutionally Vague ....... eee ecesesseseseeeseersesseensesseeeaes 174 A. The jury instruction belOW.........cccceseeeeseeereeneeeees 175 B. This court has already rejected the claim that section 207 andthe related jury instruction are impermissibly vague under both the california and federal constitutions ..........:.ccscccsseeessesseeees 176 XVII. Appellant’s claim of Griffin error was forfeited; the prosecutor merely commentedonthestate of the evidence; and, any error was harmless beyond a reasonable COubt..........ccccescesereeereeeeeesesneeeeseeceenseseranesseeees 178 A. Relevant proceedingS..........ecceeceessereseessseeseeesseeees 178 B. Appellant’s claim was forfeited because he did not make a contemporaneous objection to the SUbDJeCt COMMENTS... eceeseesteeeseerseeeeeesdesteteeteeeee 179 C. Reversal is not warranted evenif trial court had preserved the Griffin-error claim for appeal........... 180 XVIII. Thetrial court properly denied appellant’s motion to dismiss the charges pertaining to Escareno; and, accordingly, the jury was properly instructed how to consider these alleged crimes during the penalty phase .... 182 Vil XX, XXI. TABLE OF CONTENTS (continued) Page A. Substantial evidence supported the Escareno a CHALQeS oes eeeeceeseeeeeseeseeneeneeceeesessenrererseeseneaneneenees 182 B. Thetrial court properly instructed the jurors at the penalty phase ........cceeeceeeeeetereereereerereeeesees 187 XIX. Appellant’s has failed to show thatthe trial court committed instructional error at the penalty phase, and any error was harmless under any standard...........1ssesee 187 A. Relevant proceedings .........cccscseseseeeereteresseeeeensens 187 B. Appellant’s claim is meritless...seers 189 Appellant forfeited his constitutional claims; the trial L court properly permitted the prosecution to introduce evidenceofthe race orethnicity of the deputies assaulted by appellant to argue that appellant’s future dangerousnessapplied to anyoneat the prison without regard to race or ethnicity; and any alleged error was Harmless oe. cecccccsccccsccccsncesseeesereesssesseessenesseeesssaneaeereueeeeenenes 190 A. Relevant proceedings.........ccscecceccsesersesseseneetersens 190 B. Appellant forfeited his federal constitutional CLAIMS ooo. ceeeceescessseeeecececeeeateceeescsaeeeueeeestaeerssesenatenes 192 C. Appellant has failed to establish error or PLEJUCICEeeeceesesseeeeteteteeereceeacerseeeseesseenetecaeeey 192 Appellant’s challenge to the trial court’s instruction regarding “biblical references”wasforfeited; there wasno error becausethe challenged instruction was unambiguousandcorrectly stated the law; and there wasnothing in the record that showed appellant was PLEJUGICE™ee eeccceseseteeseseeteeeeeetetetetseessesesseeeessensacneneees 194 A. The challenged jury instruction .........cesses 195 B. Appellant has forfeited any claim thatthetrial court should haveclarified the now challenged IStLUCTION ......ccscceceeseeeeeeeseenneeeaseensaneaeesersacesesneees nas 195 C. The challenged instruction was a correct statement Of JAW .......cceesceeseecssseeneeesaneeeetsneerreeeetees 196 Vill TABLE OF CONTENTS (continued) Page D. The alleged error was harmless...........sceeeeeeeeee 203 XXII. This court has already denied appellant’s claim that capital punishment should not be permitted absent a finding that a defendantis guilty beyondall possible OUD...eee eecesesecteesetseesteeseeersneeeeeseuusessesueseresaeeaneeseesarenss 204 XXIII. This court has already denied appellant’s claim that the death penalty is unconstitutional in cases permitting the jury to impose death for accidental or unforeseeable Killings .0.... eee eeeeceeseeseceeeseseeseeessaseesnees 205 XXIV.Appellant’s challenges to california’s death penalty statute have been repeatedly denied by this coutt.............. 206 XXV. The cumulative effect of any errors did not deprive appellantof a fair trial during either the guilty or penalty phase... cece sesecscsseseesessseseeeeeessesteceeeneeeeeserenees 207 COnCIUSION.........cccccccccccucecececceseseeccecceseuscececuseseceeeeceesensssececseaeereeteasensesaees 208 ix TABLE OF AUTHORITIES Page CASES Alcala v. Superior Court (2008) 43 Cal4th 1205 oo. cccccescsseseeeeeneeeseereeesseenesseeeeeseernenes 91, 92, 93, 94 Arizona v. Fulminante (1991) 499 U.S. 279 [111 S.Ct. 1246, 113 L.Ed.2d 302]...120 Boyde v. California , (1990) 494 U.S. 370 [110 S.Ct. 1190, 108 L.Ed.2d 316]...197 Boyde v. California (1990) 494 U.S. 370 [110 S.Ct. 1190, 108 L.Ed.2d 316]...eee104 Bribiesca v. Galaza (9th Cir, 2000) 215 F.3d LOLS cecenese eeseeneseensenssneneeseneeenseeseenctig 86 Brown v. Sanders (2006) 546 U.S. 212 [126 S.Ct. 884, 163 L.Ed.2d 723]...66, 167 Bullcoming v. New Mexico (2011) 131 S.Ct. 2705 [180 L.Ed.2d 610]...seseseeeeeeeenens 136 California v. Brown (1987) 479 U.S. 538 [107 S.Ct. 837, 93 L.Ed.2d O34] o.ecceceecesseeesteeeeeenes 200 California v. Ramos (1983) 463 U.S. 992 [103 S.Ct. 3446, 77 L-Ed.2d LI7L] veeeceeseseeeeeseeeeees 113. Chambers v. Mississippi (1973) 410 U.S. 284 [93 S.Ct. 1038, 35 L.Ed.2d Q37] csccccceterreeseeeseeseeseens 131 Chapmanv. California, SUpVA, 386 U.S, at p. 24 vecesserssseeeerrenenersesereneneneeseesasesetspassim Cotton v. Superior Court (1961) 56 Cal.2d 459 oc .ccccesscsseceesessnennestssesreseessensensnnseneeaseneesensensanensenseegty 172 Crawford, Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305 [129 S.Ct. 2527, 174 L.Ed.2d SIA] weeeee eeteeenens 136 Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177]eepassim Davis v. Woodford (9th Cir, 2004) 384 F.3d 628 oo cccceeeeecneeeeteneeseeeeesesesesssessesnesenseseess 103 Delaware v. Van Arsdall (1986) 475 U.S. 673 [106 S.Ct. 1431, 89 L.Ed.2d 674] oo.eee139 Estelle vy. McGuire (1991) 502 U.S. 62 [112 S.Ct. 475, 116 L.Ed.2d 385) occceceeeeeeeeeees 132 Evangelatos v. Superior Court (1988) 44 Cal.3d 1188oescneeseesetisssceeessesesseseesseeeeereessreseenees 177 Faretta v. California (1975) 422 USS. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562]........... 82, 83, 86, 87 Giles v. California (2008) 554 U.S, 353 [128 S.Ct. 2678, 171 L.Ed.2d 488]...eeeeeceee 135 Griffin v. California (1965) 380 U.S. 609 [85 S.Ct. 1229, 14 L.Ed.2d 106].....178, 179, 180, 181 In re Marriage ofHinman (1997) 55 CalApp.4th 988 o.oo. ccccccceeseeeeseneteneneeeeeeterenerersnerteeereenseeces 82 In re Sheena K. (2007) 40 Cal.4th 875 oo ecccscceecscsseeseneereeerenseneneeneeecieniersresissenseensens 196 Indiana v. Edwards (2008) 554 U.S. 164 [128 S.Ct. 2379, 171 L.Ed.2d 345]oes83 Jackson v. Virginia (1979) 443 U.S. 307 [99 S.Ct. 2781, 61 L-Ed.2d 560]...seen57 Jammalv. Van de Kamp (9th Cir. 1995) 926 F.2d 918 ve eccccccecsescsesesesesesesereseeeecasenseenecerecnenens 118 McKaskle v. Wiggins (1984) 465 U.S. 168 [104 S.Ct. 944, 79 LEBd.2d 122] crccsseccsensseneen 82, 85 Montanav. Egelhoff (1996) 518 U.S. 37 [116 S.Ct. 2013, 135 L.Ed.2d 361] .....eeeeetee 132 MwMinv. Virginia (1991) 500 U.S. 415 [111 S.Ct. 1899, 114 LBd.2d 493] seeeeneteceeeeesetneeens 155 Xi Neder v. United States (1999) 527 U.S. 1 [119 S.Ct. 1827, 144 L.Ed.2d 35)eee139, 165 People v. Ainsworth (1988) 45 Cal.3d 984 occceceeeesececscsesseeenenerereeetsssesseesesssenseeeeness 183 Peoplev. Alcala (1984) 36 Cal.3d 604 oecccccecssesereeseeeessesnsneserenenseareressssessssisasssasseseesees 74 People v. Alexander (2010) 49 Cal4th 846... ccccceccereeeteeneeeneeenersssnseenseesesssseseserensees 119, 148 People v. Anderson (1968) 70 Cal.2d 15 .iceccceseeesseetescetserseeeireeeresnenerenseneeeneseesenees 71, 72, 74 People v. Anderson (1987) 43 Cal.3d 1104 oe esceeseseereseeeseeesseerenterensstessrsssenensarensaeeneneeys 105 People v. Anderson (2007) 152 Cal.App.4th 919 ....ccccccscscenseeeereresssessesseersenenenenseserenensaces 198 People v. Andrews (1989) 49 Cal.3d 200 ...cecesscesscssscsesseeseeestenerssesesnsasssasssassesseeetneadecenteens 196 People v. Avena (1996) 13 Cal.4th 394 oo cccsccceseeeseseecserenenenserereneeseseneerseesnenensesenererensines 145 People v. Avila (2006) 38 Cal4th 491 o.ccceecccsesscssenseeetereneseerereeessasessssnenenenensncerens 103, 183 People v. Babbitt (1988) 45 Cal.3d 660 ve ccssscessesercseesseseetensersssesssensenessesenenseneneasenscnceney 112 People v. Bacigalupo (1993) 6 Cal.4th 457 o.cccscsccssseeeeeseseeseeneerseeenesssssssnssessnsesenenersnencass 192, 193 People v. Balderas (1985) 41 Cal.3d 144 ccccescccesscscecenseceetseeneeestereessssssssseeneresacnsererensensys 92 People v. Barnwell (2007) 41 Cal4th 1038 oo... ccceeseteneeeneeneeeesessseseeeeneetsnenenensiesseneres 68, 71 People v. Bean (1988) 46 Cal.3d 919 v.ccccccceeeeteecesee reer sess teeinenerserenensenensasentcnsenenegeess 91 People v. Beeman _ (1984) 35 Cal3d 547 ..cccccececesseeneeerererereesseeesesssenenenenteeasesienseneeneensaseres 62 xii People v. Blacksher (2011) 52 Cal.4th 769 oo... cccccceesseeeeeseeseteeeenecsesnecneseensesneeetesenecnresseeiey 138 People v. Bloyd (1987) 43 Cal.3d 333 voo.ccecccccesceneteesecneeeetesnecsessessseessseseresecssieseeseegs 71,75 People v. Bolin (1998) 18 Cal.4th 297 ooo. ciccceeececeeecneeeeessereesesseessseseaseeseeecseesssecsenneeeses 76 People v. Booker (2001) 51 Cal.4th 140ccccecsesscereneeceteeeeseesseneeenessetetsassessesesseseeennees 72 People v. Box (2000) 23 Cal.4th 1153 oo. eeeesseessersenessecsetssstssseseesseesessesseneenes 104, 207 People v. Boyde , (1988) 46 Cal.3d 212 occciececeesseesesseesesetsessessesssessessesessessesasceeseesgeeeees 104 People v. Boyette (2002) 29 Cal.4th 381 oesccccesccssessecsessesecessscsevstesssaseeesseeesssseeseseseesenees 181 ‘People v. Brady (2010) 50 Cal.4th 547 oiiceccssccenscnscseseseseeressenessessesetseneeeeecaeees 167, 180 People v. Briscoe (2001) Cal.App.4th 568 occccecceseseessssesscsesecseenesessecsesensenenetseecisreetisees 63 People v. Brown (1974) 11 Cal.3d 784iceccccccssscsesecnscsseesensessceessenessrensnactecnretseersctereatas 172 People v. Brown (1988) 46 Cal.3d 432 oeccsccsseecseenessrseeseenscsneeseenecssesenesesssnenenesetees 200 People v. Brown (1993) 6 Cal.4th 322.0... sesacaceeseessesecsesseseeneceesseesseaeeesseessessecsesneaseneens 120 People v. Brown (2003) 31 Cal.4th 518 oo. ceeesesensescssseseecsenenseessesseseneesssesasereersenenaees 111 People v. Brown (2004) 33 Cal.4th 382 oecccesesscsssesssenscsstsesecsesessecsesseeseeesteensneneeneeeys 166 People y. Burgener (1986) 41 Cal.3d 505 oo. ccsecesesesensescseeessececesseesessusessecaeerenesneesiecates 197 People v. Burnell (2005) 132 CalApp.4th 938 occececccseecesessesseneseesserneeenesrsseeseenesens 103 XU People v. Burney (2009) 47 Cal4th 203 o...ccceccsesesceeseseeenensertenerstsessseseeeeecerenersnrenas 105, 107 People v. Cage (2007) 40 Cal.4th 965 vo. ccccceeseeereteneeeeeceeereienereeneeseenssesseneesientneerenttey 138 People v. Cain (1995) 10 Cal.4th Lcees cesesesseseeseeseeeeeeeerenerensnerssnereessersreesneereasenentney 127 People v. Carasi (2008) 44 Cal.4th 1263 oo. .cccccceceesesesereeceeeceeersneneterensnessesessseessereetesesataeey 155 People v. Cardenas (1982) 31 Cal.3d 897 svcsausavesuessecsuccuecaesnecressesavessssrsaenecsesseseeeseeereasessesseesse DO People v. Caro (1988) 46 Cal.3d 1035 w..cesceseseseeecsnenenerseressseessssennsacsssssensnenecnersenensasans 75 People v. Carpenter (1997) 15 Cal.4th 312 w.cccceesesesseecenenersereesiesneeenenseeenensensesenennereneneses 57, 121 People v. Carrera (1989) 49 Cal.3d 29] w.cscccecsssesseectenecseeesseeeeeeasseasensensnereciseneseeeeeetiens116 People v. Carter . (2005) 36 Cal.4th 1215 vo ceseceseeseereeeserererenereseeneserenenteneenensens 111, 155, 157 People v. Castaneda (2011) 51 Cal.4th 1292 vo. ccccsseeeecteeererenereteessseeesceneneeneneencas 170, 171, 172 People v. Castillo (1997) 16 Cal.4th 1009 oo. ccesccssscceseeesseresenssssssnessssansanennsasensareneasensevensens 145 People v. Caudillo (1978) 21 Cal.3d 652 v.ccseccsscceseseeeererersneersesieeeeecnessereeetensensnsereraneacey 172, 176 People v. Ceja (1993) 4 Cal.4th 1134ccsessseecseensnesssnenenensasarstenenens 57, 61 People v. Champion (1995) 9 Cal.4th 879 .o.ccccecceneneeeteeeeerenerenseesesenscesenenentey 111, 127, 129, 131 People v. Clair (1992) 2 Cal.4th 629 .o..cecccceesessecseeeereeeenenseneeesessersssnenssseenseneererensrsesereess 145 People v. Clark (1990) 50 Cal.3d 583 w..cecccssescesecsecneteseeneestsntsnssserseserersesssneneenteceeseressesseeyy 82 XIV People v. Clark (1992) 3 Cal.4th 41 cc ccccseececesneseeseessseeeessssseesesesseseseseseeesseseseessessessess 127 People vy. Cleveland (2004) 32 Cal4th 704 occ eccsecseeneeeecnseeseteseeesseseeneeesesestenesaeeeeenaseees 155 People v. Coffman and Marlow (2004) 34 Cal4th Looe eccccceeeeteeseeneeeesssesssenieeesneessens 104, 106, 119, 180 People v. Cole ; (2004) 33 Cal.4th 1158 vc cccceccceesecsenseeneeseseeresecsesssesseensssesessassenseeees 183 People v. Corrigan (1957) 48 Cal.2d S551 oeeececeeeseseecensenenessenecsecessesseeseseseessessseessenesseeaees 119 People v. Crittenden (1994) 9 Cal4th 83 oo. eeceecssecssssseeesieecssnisessnseecssseccssecsnnecnneesanectesnneesanns 112 People v. Croy (1985) 41 Cal.3d 1 eccceeeessesesesesenersesesesssscseeasseseeseeecsssesenssaseesaseeeetaees 166 People v. Cruz (1980)26 Cal.3d 233 occcccessseseesesecseeeseeeseeeseneseseetesseenereeersnensenereeney 75 People v. Cummings (1993) 4 Cal.4th 1233 occcecccseessecseeeeeeeesenereneeeseeseenereerseneeeseeteeenees 105 People v. Cunningham (2001) 25 Cal4th 926 oc iiecccscsscsereseeerseseesetsnessessseereesesieeereeneegs 94, 207 People v. D’Arcy (2010) 48 Cal4th 257 ooo. ccecsssssesenessesesesenecneseeessseereseeeeenereseeeanenerscaey 135 People v. Danielson (1992) 3 Cal4th 691 oeccceecececeeseetereeseeeceeseseeteserenereeieereneesteeeeey 199 People v. Danks (2004) 32 Cal4th 269eicsscccesseesesseesssscseseeenesssenereneserseresesnens 200, 201 People v. Davis (1992) 8 CalApp.4th 28 oo. ccccccccssesscsessneeecsesenenensserterseenenenenenerseneees 63 People v. Davis (2009) 46 Cal4th 539cccecceteseeseeseereneenenenenesserereneeneeeseessrentterecee 197 People v. De La Plane (1979) 88 CalApp.3d 223 o.ccicccccesssesetesecrenersenesteeeerseeseesnenensenerecney 112 XV People v. Dennis (1998) 17 Cal.4th 468 oo ccscecseeeseseteeeeeeeeeaeesnerenenssessesenenerenentss 144 People v. Dent . (2003) 30 Cal.4th 213 .cccccccccseereerenerererssrenstesseseerssssesssnenenerenseneypassim People v. Dungo (2012) 55 Cal.4th 608 oo. csccceseeseseseeneeceeeeneeeteenesseseeeseseenensseereteneenticnsey 137 People v. Dunkle (2005) 36 Cal.4th 861 ...ccceccccseceseceneeeenererenensterecssesseseseseesenenees 80, 152, 153 People v. Edwards (1991) 54 Cal.3d 787 ...cccecccceeeceseseteeeeeestereeeetsneenssenseeseneseseneneens 63, 72, 119 People v. Elliot (2005) 37 Cal4th 453 v..cccecccsseseeseesneeeneeneerersstsserssennensseenenseneasenereneanensess 75 People v. Ellis (1966) 65 Cal.2d 529 v.ccececseseecssseseneereceeneneeesessseesseneeesensensensnensersasecestess 114 People v.. Engelman (2002) 28 Cal4th 436 w...ccccsseeseseeseeerseseseeecessasssensensasensneesevencass 166, 167 People v. Ervin (2000) 22 Cal4th 48 ....cccccsessecseseeecsetsreeserssseesssesesensensneeertentenssecersssesnss 104 People v. Fairbank (1997) 16 Cal.4th 1223 ..ceccssccsseessecteeseerereeseseseesssssenessenensnnsasenensscseseaeas 206 People v. Farnam — (2002) 28 Cal.Ath 107 ...cccecsecscseserereressererssenesseesssensnsnnseceseensssseess 114, 118 People v. Fauber (1992) 2 Cal.4th 792 v..cececcessesesssssesesscerseneeresrensssesseensnssnsensersensnserensaseesass 183 People vy. Fitzpatrick (1992) 2 Cal.App.4th 1285 eeeevatsueceseeseesessecaeenectnenscneseeseeeeseeseeeey 197 People v. Flood (1988) 18 Cal. Ath 470 .oeccessccecssrecsscees ees ne iene eens eee eee e eeeeeeeeeees 165 People v. Foster (2010) 50 Cal4th 1301 ...scececceseseseeeeeserssesesseeseanenseesanenennsensetareeseseesaes 151 People v. Friend (2009) 47 Cal4th Lo. ceccccessseeeeeseeneereneesersseeneseessaressesenecenencnsarsrssceneentes 168 / Xvi People v. Frye (1998) 18 Cal.4th 894 oocccsececeneeeneeeteseeneeseeesesssesessrsseersesseeneegees 148 People v. Fuiava (2012) 53 Cal.4th 622 oo. ccecceeceneeseeseeseeesssessesnecseeseeseesenss senevees 151, 157 People v. Gamache (2010) 48 Cal4th 347 oo.cccccecesessesesseneeneneeseesesecssesessesssssensssesseeessessessees 128 People v. Garceau (1993) 6 Cal.4th 140oescesensssecseresesscsecsessesseeseeeeenes 112, 113, 118 People v. Garrison (1989) 47 Cal.3d 746 voce ceeecseecseteesseseeessssecsesessesseessenessrerieens 61, 64, 67 People v. Geier (2007) 41 Cal.4th 555 oceeececsesesseseseeeesseeeseneeeeraes 94, 113, 137, 139 People v. Gonzales (2011) 51 Cal.4th 894oecccsescereececsesecteceesessessesseeteseeerereeneceey 63, 173 People v. Gonzales (2011) 52 Cal4th 254 ooccesesseeeeescsssesseessenerseneeessseenesessecereennersey 74 People v. Gonzales (2012) 54 Cal4th 1234 oo cceeccssesssseseceeseeserseeseeneseeneraseerecseressersenenens 137 People v. Green (1980) 27 Cal.3d 1 oe ceseeeseenesecssessesssssesssseseescseeeseseeereassereenereseeataenees 127 People v. Guerra (2006) 37 Cal4th 1067 o..cccsessseseseeseeceeseneseneeeeestseereeeneeereesnreeness 57, 61 People v. Gunder (2007) 151 Cal.App.4th 412 oo. ccsccseseseseeneseneseeseneerenens 161, 162, 163 People v. Gutierrez (2002) 28 Cal.4th 1083 oocceeseesesseneesenesseesenesseeessercaeteseaseessecereriaegs 98 Peoplev. Gutierrez (2009) 45 Cal4th 789 occceccceseseesssseneneeesneetessertecneerecersesneenereeernt 137 Peoplev. Guzman (2000) 80 Cal.App.4th 1282 ....ccccccscesessseeneeeerereteteneeeenersseensenereneney 181 People v. Halvorsen (2007) 42 Cal.4th 379 oc cccesscsssssssscscssssseseneececsessnereceseerererenenerasieety 59, 75 XVil People v. Harris (2005) 37 Cal.4th 310 oe ccccssesessessesescssseseeserereressssesssessrsssseeectes 119, 120 People v. Hart (1999) 20 Cal.4th 546 oo ecceccseeescseeneseteeeeeeenesereneesesessseerensesesseetieerenty 196 - People v. Hartsch (2010) 49 Cal.4th 472 o..ccsecseseccsecsessecssessseeneesssesssneseneennareen 114, 147, 148 - People v. Hayes (1999) 21 Cal.4th L211 cccccseceeeeeeeeeeseetersnessserenenenesesenenens 61, 67, 183 People v. Heard (2003) 31 Cal.4tl 946 o..cscecsessesesesereeeeeterenenenssrensnsesseseerereneacens 111, 152, 192 People v. Hernandez (2004) 33 Cal.4th 1040 o.ccccecceesesereeeeeseereneestsnesereneseansnsensnsersensareners 130 People v. Hillhouse (2002) 27 Cal.4th 469 o...cccccecccseseercseenesreneensatessenssreneensrsensrneneensnnennensasesesnes 65 People v. Holmes (2012) 212 Cal.App.4th 431 ..cecceeesstsessessesseseeseensereereneenrceeasessenseenss 137 People v. Holt (1984) 37 Cal.3d 436 .o.cecccscsssecessereeecnecnsesssesnesrennssnsesensaneanenteaseasenseesnsatas 96 People v. Holt (1997) 15 Cal.4th 619 ..ccccccsecseereeseeteresseesessrssessesseneneeneneensesaneenss 155, 196 People v. Homick (2012) 55 Cal.4th 816 ....ceccccssceseeeeesseeretessseesseseessenensenenensensseeeerees 104, 106 People v. Hoover (1974) 12 Cal.3d 875 vescececsccsesesecneneesesessseesseessseeneensensensnsenearenecsensesseseegys 183 People v. Hovey (1988) 44 Cal.3d 543 v.cceccscsssescstsseenssseneeresssesstesssnsereneereatsesenreneacnteseeseesnsees 72 People v. Howard (2008) 42 Cal.4th 1000 .....cscecsceseeeesereseereenssessssesseseenesesrsaneneancerensesesseseys 168 People v. Howard (2010) 51 Cal.4th 15 .o.ccceccsssecseseeeetsseersenteseesserssnenssesscusenseneeerassseesenseeets 152 People v. Hoyt / (1942) 20 Cal.2d 306 .o..cecceccesecsesneseecrernerreserseenseneesesssnsensensetensarcenensenens 183 XVili People v. Hudson (2006) 38 Cal.4th 1002 wcecccccccceesescensetesseeteesesesseeeeesesenesseceesensesnresees 196 People v. Huggins (2006) 38 Cal4th 175 ...cecccsessesesereeseenesseseeeseeensnenensnecestecseeeeseneey 129, 145 People v. Hughes (2002) Cal.4th 287 oo. eceeeeseeseecesseeecneessseeeesesasesesseecsesessessesssseesssseeseeey 180 - People v. Jasper (2002) 98 Cal.App.4th 99 occecesrcnereterscssesessenscenecsessscneereseesersenees 196 People v. Jenkins (2000) 22 Cal4th 900 oo. ccecesssssscsecesnsssseeessseseeeeesneceseeseeneeespassim People v. Johnson (1980) 26 Cal.3d 557 cccccccsssseessenssssseeesssecssessesenstecssnssneesesiteereneenereeets 63 People v. Johnson (1992) 3 Cal.4th 1183 oo eecesecseseesesessesccesecsseesseesseseceteneeenesseesesiey 114 People v. Joseph (1983) 34 Cal.3d 936 ...ceccecsssssesersereeessenecsstereseseenteesseererensssssessreresiseenes 82 People v. Jurado (2006) 38 Cal4th 72 oo. eececsscssssseceseneneeeserseesseeecerereenseeeersteneseeseieneens 57 People vy. Karis (1988) 46 Cal.3d 612 occccceseeecsereceseeneneeeeesetenenenerereeseerenessnens 113, 197 People v. Kaurish (1990) 52 Cal.3d 648 oo. cccesecsesseneeertesesseeeneereetenereeteereerseseseseneseerees 129 People v. Keenan (1988) 46 Cal.3d 478 oocecceeeeseneseseeeneeecsseneneenerseneeereninenenecerseees 180 People v. Kelly (2007) 42 Cal4th 763 oo. cccssecssssscsesessseneeceseesenseeeeeeenneererererereratnenes 168 People v. Kipp (1998) 18 Cal4th 349 oocceeseetereseseseneneeseceesereneneeenereteneteneteceey 113 People v. Kipp (2001) 26 Cal4th 1100 ccceeseseenenersneeeecisaseenesecieterereteneees 57, 131 People v. Kraft (2000) 23 Cal4th 978 oo. ecessscssecseeetesesserecsereeesteneeneteeneneeererenereey 112 XIX People v. Lancaster (2007) 41 Cal4th 50 oeei eccesseseseeeeseseeneneseeesetensieessenserernseeesseeseney 80, 86 People v. Ledesma (2006)39 Cal4th 641 ooo eeeeessceeeseneescereeneseeeieeseeeneresassssreeenenenesereengs 139 People v. Lee (2011) 51 Cal4th 620 occcccesesescseneteeeeeeetecetenenessessenesesesesssesenenessenseacens 75 People v. Letner (2010) 50 Cal4th 99 oo cccesesesesseeeesseeneeeenteensaenenssnenensssseseseesnasesesnenteney 137 People v. Lewis (2004) 117 CalApp.4th 246occreeerenssesseresnsrsesessrsenensecneey 180 People v. Lewis (2009) 46 Cal4th 1255 .cccsscesesseseeeeetereeneeerenseereressesensasenenceneacereneasanans 205 People v. Lewis and Oliver (2006) 39 Cal4th 970 wo. ccecceseceseetenseeeressesscenseenssnerssseesnsenteceteensanertes 136 People v. Lopez (2012) 55 Cal.4th 569 oo. ccccecessesessecteeeterereseenesenesneneenenensnensnrenensness 136, 137 People v. Loy (2011) 52 Cal.4th 46 oes cecccesceceseeceeerereseserenesnenssneseenesaceenacnnensersanesseserees 137 People v. Loza . (2012) 207 Cal.App.4th 332 ....cccseseseesssseseseeseeeeeserssnnrerensenseererensseeseseentes 62 People v. Lynch (2010) 50 Cal4th 693 ..ccccsscssesscrceecesesensesestensecsssesseesseseseenncatersatanesnesnenss 93 People v. Manriquez (2005) 37 Cal4th 547 oo. ccccseseceseceeeeeerereesnessseseeeeeeneneensenensnenensenenenens 95, 149 People v. Manson (1977) 71 Cal.App.3d 1 .isceccccesseseseeecteeeerteniessseeserenseenesnennsarenrenieatanenices 187 People v. Marks (2003) 31 Cal.4th 197 ..cccccececseseeeeeresceieneetsessssesensensasensnsnrenersensseaereesensess 75 People v. Marquez (1992) 1 Cal.4th 553 .o.cescsscssesssseseceereneereneseseereeseensensenensensecesaneasesensesnes 101 People v. Marsden (1970) 2 Cal.3d 118 w.ccseecsscceesseseeeeeecesenseenenserescereneensensnerncanensenceneaseressiens 77 XX People v. Marshall (1997) 15 Cal.4th 1cceeecesaeeesensessscesessesseeeeesssesessesbeensesnessesags 82, 92 People v. Martin (2000) 78 Cal.App.4th 1107sieccseseesesserersscsesessensssetesensesesenesaeees 199 People v. Martinez (1999) 20 Cal.4th 225 .occccesceseeseeesseneessesssersesscsscsseecsersesessseeseeesaes 170, 172 People v. Martinez (2003) 113 CalApp.4th 400 occcseecsesseecneereneenenesenenees 74,171, 172 People v. Martinez (2010) 47 Cal.4th 911 occeceeseesssesesssscnesecnecnesessessesetsssesaseeseetaeneens 206 People v, Mason (1991) 52 Cal.3d 909 oeicccccsstessesesecseersesceesersereneeserseeneneres 91, 103, 105 People v. Massie (1967) 66 Cal.2d 899 oo. eeeeessseseeseceesesesereeeesenenstensererecenieasnereneenregs 105 People v. Maury (2003) 30 Cal.4th 342 .ciecsesesecscssecsssenesesseeeeneneeseenenenseney 57, 61, 68, 71 People v. Mayfield (1993) 5 Cal.4th 142 ceceseceeseseseeseenesereeneneeneneneeessieeseneeees 145 People v. McKinnon (2011) 52 Cal.4th 610cesceesssesesescesenenesesereereseesnenesesseesssreasiressseesees 206 People v. Medina | (1995) 11 Cal.4th 694 ooeesceseeseeneneenerenenenereeneeyceseeeeeeseeeeeetneess 181 People v. Memro © (1995) 11 Cal4th 786 vo. eccceeeeseneeeneneneeeeeneenerstaenseerresesesseeseneness 58, 179 People v. Mendoza (1998) 18 Cal.4th 1114 occccceeeeneneenenenenenecenereereeenereneseneterenseess 63 People v. Mendoza (2000) 24 Cal.4th 130 oo. cceeesesseeeesesesesessseecesreeseeeseenesentecsaneeens 101 People v. Mickey (1991) 54 Cal.3d 612 voceseenereceneneseeeeneeeierensenssssesssessssensseeress 113 People v. Mills (2010) 48 Cab.4th 158 oeccceeeessseteenensenerstseececneneresetteecsnerarecsesens 151 Xx1 People v. Mincey (1992) 2 Cal.4th 408 oiececccseceeesseneseeeecetenerssnereessessnerseneneseatennenenty 197 People v. Mitcham (1992) 1 Cal4th 1027 .cccccceceseseseeeeeeeeeeererenerenenesseesseeescsesnenesneaennntnens 180 People v. Monterroso (2004) 34 Cal4th 743 oo cccccseseseseneneneeeeseeeeeenensseseneeesesssnesenenesereesecnens 181 People v. Moore (2011) 51 Cal.4th 386 occecceesesseneseseensenenersassessscasasassenenens 163, 164, 165 People v. Morgan (2007) 42 Cal4th 593 woeseet reeereneestsrenssesssenereneneenes 175, 176, 177 People v. Musselwhite (1998) 17 Cal4th 1216 .ccccsccecsessesecteteeneeeenesssersensesensasensasenenensnenneneny 145 People v. Narvaez (2002) 104 Cal.App.4th 1295...essesneeneesereeessierecssesnsensnesanereieny 62 People v. Nazeri (2010) 187 Cal.App.4th 1104 ...eeccceceeseseesnsssneseesenesseneetenienseneresssesseneas 72 People v. Ochoa (1993) 6 Cal.4th 1199cccsenesssesrenesseeererteaseneneatenenserenererseeaspassim People v. Orozco (1993) 20 Cal.App.4th 1554 occsesesseseeserseessenssrsnnensentsscesessenseeensens 74 People v. Osband (1996) 13 Cal4th 622 .cccceeeeesesserererererenenens Secsesaceseeseesersesserseeneesseeatens 71 Peoplev. Parson (2008) 44 Cal.4th 332 ....cceccsecsesseceeeereseeresseresseneesenesncensnceneaseaceeeecssnenseenegs 168 People v. Partida (2005) 37 Cal4th 428 ....ccccsseteeeereserereteeneseseerensesesanenens 111, 129, 152, 192 People v. Pearson (2013) 56 Cal.4th 393 ..ccccesccsseseesseeeneesesesssceseneersneessnenseneasersasereeees 151, 157 People v. Perez (1992) 2 Cal4th L117 vcccceccecseeeeeeeeecreee sees renesessenenensneneerensicnsasersensesenregegy 71 People v. Perry . (1972) 7 Cal.3d 756 .o.cseccssecceseeesteseecneerseneseeteneeeranessensanereseneenencen 185, 186 XXii People v. Pescador (2004) 119 Cal.App.4th 252 oo... eceeeeceeeeeeneeeeseeneeneennes 160, 161, 162, 163 People v. Poindexter (2006) 144 Cal.App.4th 572 oo. cecccssesecnesseeessssssssseecneesssseesseeneseneeasenens 75 People v. Prettyman (1996) 14 Cal.4th 248 voceeeceseeseseseceesseserecesesessesssseaseseeseeneessesseenessees 62 People v. Ramirez (2006) 39 Cal.4th 398 ooo. ceccecneenececeneeesessssseecsesseessssessesiessesseesseseeseeas 114 People v. Ramos (1982) 30 Cal.3d 553 wseeceeseneseseseeseerseeseessessesscsesecssseesseseesserseteeneets 113 People v. Redd (2010) 48 Cal.4th 691 occceeesscseresscsessssnssasecessenessesseessenssnrseseenetens 135 People v. Reyes (1998) 19 Cal.4th 743 occcccseeesssssceseseeseseeessensesesssssesseseaereersesatenegs 198 People v. Riccardi (2012) 54 Cal.4th 758 oo. cccccccssscsssscssesessenseenessenseereeeeenereneensenens 135, 136 People v. Riggs (2008) 44 Cal.4th 248 osccescsseneenseeseesesseseneneeeeeieeerensrertees 111, 192 People v. Riley (1992) 2 Cal.4th 870 ose esecsessecsecsessseesseeseesseeensessssennesescnecnesnetanearecnstias 129 People v. Roberts (1992) 2 Cal.4th 271 occsssenesenseseeteeceesenetetseeessenenseesseressees 65, 114 People v. Robinson (2006) 37 Cal.4th 592 oo. cciccccseecsessescseeesenenenereteneneeiereteneeerenen 149, 157 People v. Rodrigues (1994) 8 Cal4th 1060 oo. ececsssesecsetseseseseteseeesseetestesneereersenens 130, 166 People v. Rogers (2006) 39 Cal.4th 826 occcccccseecsesseseeeesenseeesseeseerereresersetsesssens 103, 203 People v. Rogers (2009) 46 Cal.4th 1136 oececccesecsecsenectesenerenesecneeareeneerestesteeseeess 196 People v. Romero (2008) 44 Cal.4th 386 oeccccceesseereneceesesseneneestereeseteteenssenees 75, 153, 154 XXil People v. Rudd. (1998) 63 Cal.App.4th 620 oo. cceeceseseceseseeeteneserereteeienerersnerenens 82, 129 People v. Samaniego (2009) 172 Cal.App.4th 1148 o.cceceeceeeeeesseeseerseeseeseeseeensenersesentans 196 People v. Sanchez (1995) 12 Cal4th cececcssecsesssesssenenecessseeeeneeesenenererssasenereeaseesegs 151 People v. Sanchez (2001) 26 Cal4th 834 oecceeeecseeceeeessenseesesenssneereneeesensnerenesseeeeensnsaees 197 People v. Sanders (1990) 51 Cal.3d 471 voeceecccesceeesesesesesenesererssseseseseseensenenesenessseneeserens 65 People v. Sanders (1995) 11 Cal.4th 475 oo cccceccesseeseseresereeeeertsenenesesesenenensneneseneseesesesens 183 People v. Sandoval (1992) 4 Cal.4th 155 occ ceccesseeeeeseeneteecereestetessseesssensssesseees 94, 129, 198 People v. Santamaria (1994) 8 Cal4th 903 ....sccssssscesessseseeseneneasenenereseerssenssesensensasseesenseeenenty 63, 64 People v. Santos (1994) 30 Cal.App.4th 169... cccseseeeeecneresssseersesnesesnensesenenerseaseessertens 128 People v. Schafter (1911) 161 Cal. 573 eeecscsccseeseseseeneseeeeseeneneerenseneresseasanensesesaarraneneasenens 116 People v. Schmeck (2005) 37 Cal.4th 240 oc sccesseeeseneeseseeetesereerseeseserenssensssensnsntacaceneneneneey 206 People v. Seaton (2001) 26 Cal4th 598 ..cccccsecseeeseseeneeenenenstnsesseeseeecsesessasesesenerens 151, 207 People v. Sherren (1979) 89 Cal-App.3d 752 cvvcesssssssssnsssnststietintsstieeisteateises 116, 117 People v. Shied (1997) 16 Cal4th 1 ecccsccseessseseesereseeneneeneernesssneeesessanensneeseeneenceney 112,113 People v. Silva (1988) 45 Cal.3d 604 ooo. cecccecseseeeneeeteseestecnensererstseeessessssensssensnesereeeeaney 65 People v. Smith (2007) 40 Cal4th 483 o.ooreteeeeeeeeenssasersnesenerenenesererenseeneey 91, 92 XXIV People v. Smithey (1999) 20 Cal4th 936 oo. eecceeseeeeersereesenessessssseessenscsenesseesesenesensees 113, 196 People v. Snyder (1976) 56 Cal.App.3d 195cecerecsssseeesessscsesseserenesensenenersseerenenens 116 People v. Soper (2009)45 Cal.4th 759 oiceescesssesesscsseeseseessesseecseneeessessenecetienererieypassim People v. Souza (2012) 54 Cal.4th 90 occecccsecseeeeeeeeeeneseeneneresieneerereererernerey 107, 167 People v. Stanley (1995) 10 Cal.4th 764eescccccseccsesesesessecessesesseeeneneieeesrsnenenanerenesererteey 58 People v. Stanley (2006) 39 Cal.4th 91 oo scesssessescsencseeeseseesenssceseeeeeseenenecssssasssansecsessnesenes 80 People v. Stanworth (1974) 11 Cal.3d 588 oo cccecseseeneseseseseeneenesenenesnecerensteesseresenenseresseseees 172 People v. Stender (1975) 47 Cal.App.3d 413 occeecccesscessseenersenensestenssesreesserenseenssssesenees 172 People v. Streeter (2012) 54 Cal.4th 205 .o..cccececeseeseresesenenseneenerssserseesseesensensnssernenrensneeey 168 People v. Sully (1991) 53 Cal.3d 1195 .ececsceseseccsseeseeneseneeerersasecsneneesensnssserenenseseneetes 104 People v. Tafoya (2007) 42 Cal.4th 147 cccceseseceeseneneecrerernenearesessssesresaeneneeneea 107, 136 People v. Taylor (1992) 5 Cal.App.4th 1299 oo. ccsescseeccsseeeeseererenserseensceneenesessneseneeseeasaeas 155 People v. Taylor (2010) 48 Cal.4th 574 sessucecaucaecsusuesusatsatssesissnsavcaveseeaecsecneseseseeusseseseateeeanens 205 People v. Thomas (1992) 2 Cal.4th 489 oo ccccceseseeeeeeeeeseeeeeerersrereeiesteeesisessensees 71, 74, 75 People v. Thorton (1974) 11 Cal. 3d 738 vcccccccsceesesecsneeeeseseeeneecnestersessseeeecssnesenesesnssensnrns 172 People v. Thorton (2007) 41 Cal.4th 391...aseaceceasesecseccecueeaeesenersnsepeseeneneeeeaeenees 145, 196 XXV People v. Tully (2012) 54 Cal.4th 952 vcccccceeeseseereteeensenenersssreceseneseseessserseneseneeneteey 152 People v. Turner (2004) 34 Cal.4th 406 oe ccccscesseseteseserseeeeesereereesststesesisnsasassenenseseneneys 181 People v. Turner (1984) 37 Cal.3d 302 o..essecssescesssesensetersseceseerenensasererseneeseesssseneneneateneys 105 People v. Valdez (2012) 55 Cal.4th 82 vcccccsccseseeseneseneteeceeeeressessesassseeseenenseensasenennnenennens 131 People v. Vargas (2001) 91 CalApp.4th 506 ...ccccscceeseeereteseterereeneesseenenrsnsrieneesaeeni 62 People v. Walker (1988) 47 Cal.3d 605 vo.cseecccseseseseecesereeesereneerseeasseeesssarenssessereneeesnsniessaneecs 91 People v. Watkins (2012) 55 Cal.4th 999 oo ccecsessessssresseneteneasnenesssseescenenenseeesensnenenens 113, 114 People v. Watson (1956) 46 Cal.2d 818 ..ccsceccesecseeeeeerereeetsseseesseensseensessneacnensenennercienspassim People v. Welch (1999) 20 Cal4th 701 o.cececcessecsecsessecseeseessesteseeesesseseesssnssnennserseserssenectes 206 People v. Whalen (2013) 56 Cal4th 1 oc eceeeceeeeteeeeetees teense reeeseenenensees eenesenetsnessereenespassim People v. Whisen (2008) 44 Cal4th 174 oc cccessnerererseeeererensessseeasteseneenensessesnenrensnees 145, 168 People v. Wilkins (2013) 56 Cal4th 333 ..ccssscessessecseeseesseeneerenseresssessesersenerneasenennenseneaseentyss 165 People v. Williams (1997) 16 Cal4th 153 ..cccccseesecseneseceeeeesrenssessserssererseneseeaserensersesseenecteas 189 People v. Williams (2006) 40 Cal.4th 287 ....sccsscseecscsecereeseresersreseneenneneenssnsnscnsnreasseessanenrnees 197 People v. Williams (2008) 43 Cal.4th 584 o...cccccsceeceeereersteeseensrsseetenssnenseeeseerennentes 61, 67, 183 People v. Williams - (2013) 56 Cal.4th 630 [156 Cal.Rptr.3d214]...184, 186 XXV1 People v. Wilson (2008) 44 Cal.4th 758 ....ceccccccccscecceceeeeeeseeteeeeenesaeeesseenseseesenressacieesesseseeney 128 People v. Young (2005) 34 Cal.4th 1149cccesecccecnscneesenenetseeseesseesesssessessesseseesesseees 205 People v. Zapien (1993) 4 Cal4th 929 oo cccccceeeeeceseneeseeenseeesesnessscsesesssnssseeseseseeesneaees 184 Rock v. Arkansas (1987) 483 U.S. 44 [107 S.Ct. 2704, 97 L.Ed.2d 37] oe cccscseseeteteneteees 131 Sandoval v. Calderon (9th Cir. 2001) 241 F.3d 765 occsects ssereesenecneeneseeesecesessesseneensennees 103 State v. Papasavvas (2000) 163 N.J. 565cece eeesescsseeesevscneserstsecsesseeseesessesseneesssseseeenenesneerneees 154 Sullivan v. Louisiana . ; (1993) 508 U.S. 275 [113'S.Ct. 2078, 124 L.Ed.2d 182]...eee165 United States v. Decoud (9th Cir. 2006) 456 F.3d 996 oo. ccccesesseesseseneeseneeeseeceateraseerensieneneeys 108 United States v. Jackson (7th Cir. 1989) 866 F.2d woescscsssesssseseneereneeeeeseeeeeceseseneeseressenessacnenees 113 United States v. Johnson (9th Cir. 2002) 297 F.3d 845 occ cccccsseseseessseseeesnererseeestererenereateeeeneees 108 United States v. Lane (1986) 474 U.S. 438 [106 S.Ct. 725, 88 L.Ed.2d 814] 0.eeeeeeees 103 United States v. Lewis (9th Cir. 1986) 787 F.2d 1318 .o.cccececsseseseseseneneeeeeeeeneeeenenenenensenenens 108, 205 United States v. Manfre (8th Cir, 2004) 368 F.3d 832 oo.cccccsseseseeseseneeseeesteneesesenerererseerenrenens 137 United States v. Nelson (9th Cir, 1998) 137 F.3d 1094 occceessseseeeseerereseeetereetneteeeneeseeneneres 108 United States v. Olano (1993) 507 U.S. 725 [113 S.Ct. 1770, 123 L.Ed.2d 508}...ee 112, 192 United States v. Robinson (1988) 485 U.S. 25 [108 S.Ct. 864, 99 L.Ed.2d 23]... ccseeeceeeeeereteerees 181 XXVii United States v. Solorio (9th Cir. 2012) 669 F.3d 943 occresets nererenseeseeceeneeteteeeeenetensy 137 United States v. Throckmorton (9th Cir. 1996) 87 F.3d 1069 ..cccsesceesseeeneeeesseeeseesessssensseenenesseesnsenentens 107 Williamsv. Illinois (2012) 132 S.Ct. 2221, [183 L.Ed.2d 89] oesneeeteeeneteneeteeetenenees 136 Zafiro v. United States (1993) 506 U.S. 534, [113 S.Ct. 933, 122 L.Ed.2d 317] ees105, 107 Zant v. Stephens (1983) 462 U.S. 862 [103 S.Ct. 2733, 77 L.Ed.2d 235] .occescescesesseeseeeeeees 65 STATUTES Evid. Code § QO. cccccscsscesverseeeseeetsesvesssessessanensenceesnceneessseenesessesesavenanneaseensananessenssweel 12 § BS. cccccsececsesessecseessesseeessesesnensesecnsencsnsnesscsesaeasensssenessensnasascasenensersasessesgssns 112 § 35 Licccscsccseseseseenecesscsesesessesesecsseveneenseesaceeessuesssanessssesseseasertucoseacacasesacsaansess 112 § BSQa eeecesscsessesssesseseeseessenecnsensesesssessesresenseessassensanencqnsatsaneaseecssensnsss ...passim § B53 cecccccsscseceseessensssserscesssescerecesserasenessssssessscacenesenensensnsarensesereassegsaes 111, 127 STS ccccssccesncsetsessesessesesessesneseenecesseeseeseeseeeseeeneeteeenegeeee eee eeeneseeeeg eens eg0804 110 SLLOL eeeccccsecseeseeessesesseseeseseeseesesrscnccsessasenssereensaseneneeneansasenceeassesisgess 94, 111 § 1250. ceecccececcereseeescsesessesesceveeeenecessseesssaneseasecseenensseensnsnsersnseneess 134, 135, 138 Gov. Code § 1464 ..cecccsssssssecsessseeeseseeeeenseessenecseseseersasesneerecnensssenerseneneransagnnns 4 Pen. Code § UBT cccccscccsseseseeesenesesssecesesseseesesneenecseneseensnesnenssaneneensnseaccncensasensasesetens 1, 2, 58 § 190.2. ccecscsececseseressssesesseseansnseesseenensenssnenssessssenenensnsensacaneacenesntess 1, 2, 3, 102 § 190.3 .eeeeeecesesseteeeeseeeeeteeneees leveeeentesenerteeneescuceevensecenecseesessecsanerssasensenees 194 § LOT cececsscseceseeseeseseseseseseeneneneseenscensrevensnescsseasensaceranersacecine rey 1, 171, 174, 176 SQ diccecccsseccsseseeseseeresarscseesesnesseanernessencnesrearersevenssssnenaensnasearecarsarserasseseseey 1,2 § O54 ceccccssssnesseseecessenessssssensscaseasecsescrssnseesasesseetssensavecsccnsansanenecasenseesesensssssgeas 4 § O54. eccccscsscsecneceeneseesesessssecseescsussnesesnesscensnsstsssseenensansneraconsanencntessessastass 91, 94 § O54acccssceseesessssssescseesvessessesecseseneeneentensesesensensnsesssnanacensneceasevsosssecsseseessens 94 § O95 .cccccssesessccesseesesesesseseeseavenesnersesseencensneenssssneseaenseneasorsestnceensessgsesees77, 78 § O44 eeeccccsccseeseenesesseseseeseeseanesecsnsneeneeecseesensseeasavenensenenacneearsnsaceasenteresessets 121 SLD Dicceeeeeeccceeseescseseeseseeseeneseensesneneeasansnserssesseneesensneeesersasensereaceseeseys 183, 189 SLLSD eceeceecececserssesseseseeseessenennssnssesnesstsnsnesssseseesensesenscasnnenneaseneaceseeensntsgts 182 § L138 .ceecceccsscesesseceeessssssesncseseesesnssessennsnseserseneaseseneneesenensaneneereeasestenss 148, 149 § 1202.4. cesecsecsecessesessessesneaesnesneensecesersansatsnesseseensessnecesenesnnsereasencesseesessesseesey 4 § 1239. ceetecseetetereteteeees ceseesuessessecsseasecsecnecscesecncoesscescarecsucansqnecnenasenssenecan 4 § 1Q59 ee eeceeeeteeseseeseesesesenreneees vbaeaeeavecensecssceseeeaessesseeeteeeeeetensseseenees 152, 166 © § 1385 .cececsecsssessecessecsssesesscseeseansenssneeseneasessassnssesveaesessesagasensenencersaessassesnsessnnss 3 § 12022.5..ccccccsescessessrssessescsseesesnseneaceeneerenssssseneseasanensesenraceseeacserensesgsss 1, 2,3 XXVill CONSTITUTIONAL PROVISIONS Cal. Const. ALT. TL, § 7 eeceesecssescceseeceseessecsceeceecseeseeecersesseesecsaceeeseessenseneeseeseesessesasneseeenas 177 AIT. 1, 8 1S ee ecececesseescesecesececcseeseeaceaeessesseceeseneceesssesesneessaesessesenaeens 81,177 AIT. 1, § 28 voce cccccsesecssccsecsecsesseeessesteeseeeseeseeevsessnecsesteseesensseesseeseseesenseegs 134 ALt.L, § BOee cececcceeeseseeneenecsevsetecseeeeneceneereeeseessesseeseseseseeeseesieeneesanseeneeens 104 U.S. Const. AMeNd, V oie. .eecccccessccessecessseeseneesaeccseeeseneereneesseacesseaessneeeenaeeaseessenesseeseeanees 129 Amend, Vu.eecccecscseeeceneeseeeeareeeecseeseneessecesaeeeaesesessssessesessseesseesanessnesepassim Amend. VII... cccccseccscssscesesecseceecseeseserseeseeeenesseetsenscnnessarens 129, 166, 177 Amend. XIV ooo. .ccececeeceecsessececeseesevsesseesaesereeesesesssnseteeseneaes 81, 129, 166, 177 OTHER AUTHORITIES 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 394, p. 444...eens82 CALJIC NO. 2.01] ..cccccccsccesscsscesecceseesecseesssceseeesseceneeseeeecesesnsessessressesssesesseeeseeeesesnes 168 NO. 2.20 ..ccccceccessccssesscesecccesescesecseesesscesaeesseeseeseesesessosessseeessesessessseseaee 156, 203 NO. 2.21 .Qecccccccccssecscescescececssceceressessenececeseenssssecsessessseesesevsseneseesesaeeenes 156, 168 NO. 2.22. ccccccccsscessecseessecseecsecsecsessesesesseesesaeeesneesaessessessssssessesssesaseneeeseeags 168 NO. 2.24Av. ccccccccccssessceseecseseseseececeeceaeeseeesceaecseeeseasausseessesneseeseseeeeesesesenennens 156 NO. 2.27 vecccccscsscsssecescensecsecesecsesescsecssecsesenessesseseaseaeesseesscsesssaeseesensenseseeesneeey 168 NO. 2.5L vceccccsccssecsscseseseccsscssecsseeeeesecseceesenesceeeseeenecseessesseesseseseessesseesnnerseseaes 168 NO, 2.52. .cccccsseseeeseceeeeseeeteesereseenessevecuesacsessusecsesessessesesceteneeseersiestesteesateass 116 NO. 2.60. cccccccsccscecsccsssessscesessescesseeesecaesececseseeeneceseseeeseseeesssessasenseseseaeenges 179 NO. 2.6L ovccccccccessecsscescesscesscsseceseeeceseeseeeaeseessaessaeseussecssecaesseseeessseeneessseneeeeags 179 NO, 2.90. .ccccccccsscsssesscessecsseesecsesesecseeceseeceneeaeessaeeaesseessessesssesesesseeseersseeesaes 168 NO. 3.1 Licccccccccscssseessesseccsscseesseesessecseseeseaeeeessesseseaseneessasseessareeesesessseenaesnees 184 NO. 8.20. ccccccccsssessssscessesssccsesceenscseessceseeaeeseesecensessseeseseessesenesensesseseeenseeeees 168 NO, 8.2] vvcecccccccsecccscsseccsecseescssceseecsecseenesersesneensssusessesrsessateaeeseeeeeseerenaees 168 NO. 8.70. .ccescccsessseeseceeeeneseneeseerersrseasenseras vusessevscessesesessusecseeseseeuseseeueeseeseas 158 NO. 8.7L v.cccecsscesscesseescenceseeeeceeessceseeeeseaseeeseneesesssessauseesgesgs 158, 160, 161, 163 NO. 8.72. .ccccccsccscccscssscessessscesscescesgesessevsecsecseesesseeesseesseeesseseesusessesseeeseegesenes 163 NO. 8.74 vocccecccscccscssscesseseseseecsseesessesaeceseceesseeeeaeeneesteseseusersesesesseesssersassesenee 159 NO. 8.75 vcccccssccsssesssesecssecssecsegesesseeeeceeeesecesceeesesaceeeseassesssesensessssseseeesenesseesnees 163 NO. 8.83 .cccccccsscscsseescssenceceesctecceesseeecaeeeessescussessesecsscnenasseessesessssesseseeseeneaees 168 NO. 8.83. Licccccccccccsccsscsscessecsescnesseessesesneceeeceesneereeseseesseeesssessesvecseesnessenenees 168 NO. O9.5Q cc ecccecscccsssscecsneccecsseccesesseessneeecneeseneeeessesesnssssnesessaneeesessesseeaeenepassim NO. 8.74. .ccceccccsesssesssccseccsecssessecereneccaecaeseeseesseeseseaussesssesneesensseseegsensenseegaas 163 NO. 2.21. Livceccccsscsceseccseccececseseecececscenecseeceesneeeeeeeesnesessseseeesensessessaeeessegnesaes 156 NO. U7.LLiccccccccccssscesscecceseeseeeeesseveeeeeesesnencesevsssseesssensenes 158, 161, 162, 163 NO. 17.4Qs ccecccccccescessesseecssecsecsecerseeeeeeesneceeeneaseesseesessasreeees 158, 159, 161, 163 NO. 17.4 1. Liccceccccsccsecesecessceseeeceesesseeeesseeneeneeceseseesenecseceseas 165, 166, 167, 202 XX1X STATEMENT OF THE CASE In an informationfiled July 7, 1998, the Los Angeles County District Attorney’s Office charged appellant with six counts of robbery (counts 1, 2' 4, 7, and 9; Pen. Code” § 211), five counts of murder (counts 3, 6, 8, 10, and 11; § 187, subd. (a)), and kidnapping (count 5; § 207, subd. (a)). (2CT 406-412.) In count 1, the victim was Xavier Salcedo. Appellant was charged with robbing Salcedo in the second degree (§ 211) on February 25, 1997, and it was alleged that he personally used a firearm (§ 12022.5, subd. (a)(1)). 2CT 407.) In counts 3, 4, and 5, the victim was Rajandra Patel. In count3, appellant was charged with murdering Patelin the first degree (§ 187, subd. (a)) on May 26, 1997, and it was alleged that appellant: personally used a firearm (§ 12022.5, subd. (a)(1)); committed the murder while engaged in the commission of the crime of robbery (§ 190.2, subd. (a)(17)); and committed the murder while engagedin the crime of kidnapping (§ 190.2, _ sub. (a)(17)). In count 4, appellant was charged with robbing Patel in the second degree (§ 211), and it was alleged that he personally used a firearm (§ 12022.5, subd. (a)(1)). In count 5, appellant was charged with kidnapping Patel (§ 207, subd.(a)), and it was alleged that he personally used a firearm (§ 12022.5, subd. (a)(1)). (2CT 407-409.) In counts 6 and 7, the victim was Jesus Escareno. In count6, appellant was charged with murdering Escarenoin the first degree (§ 187, subd. (a)) on June 9, 1997, and it was alleged that he personally used a ' Count 2 was withdrawnby the prosecution priorto trial. (RT 21; LIRT 1752-1753.) * All further statutory references are to the California Penal Code unless otherwise specified. firearm (§ 12022.5, subd. (a)(1)). It was furtheralleged that he committed the murder with malice of forethought, and while engagedin the commissionofthe crime of robbery (§ 190.2, subd. (a)(17)). In count 7, appellant was charged with robbing Escareno (§ 21 1), and it was alleged that he personally used a firearm (§ 12022.5, subd. (a)(1)). (2CT 409.) In counts 8 and 9, the victim was Raul Luna. In count8, appellant was charged with murdering Lunainthefirst-degree (§ 187, subd. (a)) on June 10, 1997, and it wasalleged that he personally used a firearm (§ 12022.5, subd. (a)(1)), and committed the murder while engaged in the commission of the crime of robbery (§ 190.2, subd. (a)(17)). As to count 9, appellant was charged with robbing Luna (§ 21 1), and it was alleged that he personally used a firearm (§ 12022.5, subd. (a)(1)). (2CT 410.) In count10, the victim was Robert Dunton. Appellant was charged with murdering Acosta in the first degree (§ 187, subd. (a)) on July 1, 1997, andit was alleged that he personally used a firearm (§ 12022.5, subd. (a)(1)). (2CT 410.) In count 11, the victim was Robert Acosta. Appellant was charged with murdering Acosta in the first degree (§ 187, subd.(a)) on July 1,1997, and it was alleged that he personally used a firearm (§ 12022.5, subd. (a)(1)). (2CT 411.) As to counts3, 6, 8, 10, and 11, it was alleged that those multiple murders were a special circumstance within the meaning of section 190.2, subdivision (a)(3). (2CT 411.) Appellant pled not guilty and denied the allegations. (2CT 424-425.) The guilt phase was tried before a jury. QCT 689-692.) - Incount 1, Appellant was convicted of robbing Salcedo in the second degree and the jury found that he personally used a firearm. (3CT 836; 29ORT 4343-4344.) In count 3, appellant was convicted of murdering Patel in the first degree, and the jury foundthat appellant: | personally used a firearm, committed the murder while engaged in the commission of the crime of robbery, and committed the murder while engagedin the commission of the crime of kidnapping. In count 4, appellant was convicted of robbing Patel in the second degree, and the jury found that he personally used a firearm. In count 5, appellant was convictedof: kidnapping Patel, and the jury found that he personally used a firearm. (3CT 837-840; 29RT 4344-4347.) In counts 6 and 7, the jury was unable to reach a verdict, so the court declared a mistrial for these counts, which were subsequently dismissed pursuant to section 1385. (3CT 836-844, 850-853; 13CT 3476; 29RT 4338-4440; 32RT 4661.) In count 8, appellant was convicted of murdering Lunainthefirst-degree, but the jury rejected the allegations that he personally used a firearm and committed the murder while engaged in the commission of the crime of robbery. As to count9, appellant was acquitted of robbing Luna. (3CT 840-841; 29RT 4339, 4348-4349.) In count 10, appellant was convicted of murdering Dunton in the first degree, and the jury found that he personally used a firearm. (CT 842; 29RT 4349-4351; 4SCT 737-738.) In count 11, appellant was convicted of murdering Acostain thefirst degree, and the jury found that he personally used a firearm. (3CT 843; 29RT 4349-4351; 4SCT 737- 738.)° The jury found that appellant committed multiple murders. (3CT 844.) . The penalty phase was tried before the same jury. (4CT 901.) As to counts 3 and8, the jury fixed the penalty at death. (13CT 3449-3450.) As 3 Codefendant Grajeda was convicted of murdering Acosta and Duntonin the first degree. The jury found that these crimes were a special circumstance within the meaning of section 190.2, subdivision (a)(3). The jury rejected the allegation that codefendant Grajeda personally used a firearm within the meaning of section 12022.5, subdivision (a)(1). (ICT 254, 2CT 682-684.) Codefendant Grajeda was sentencedto lifein state prison withoutthe possibility of parole for both murders. (2CT 706.) to counts 10 and 11, the jury fixed the penaltyat life without the possibility of parole. (13CT 345 1-3452.) On March31, 2000,thetrial court denied probation. (13CT 3476.) For count1, the court sentenced appellant to state prison for an aggregate term of 15 years. The court ordered this sentence to run consecutively with the indeterminatelife terms due to the great violence and cruelty displayed by appellant. For count3, the court imposed the penalty of death. For counts 4 and 5, the court sentenced appellant to state. prison for aggregate terms of 5 years and 20 months, respectively, but stayed these sentences pursuant to section 654. For count8, the court imposed the penalty of death. For counts 10 and 11, the court sentenced appellantto state prison for life without the possibility of parole. The court ordered that the sentence imposed for counts 10 and 11 be served consecutively becausethese crimes involved violence towards separate victims. In addition to direct victim restitution, appellant was orderedto pay a restitution fine of $10,000 (§ 1202.4, subd. (a)(3)(A)), a state penalty assessment of $10,000 (§ 1464), and a county penalty assessment of $7,000 (Gov. Code § 1464). Appellant was given credit for 1,004 days of presentence custody. (13CT 3476-3481, 3486-3488, 3494-3499, 3501- 3503, 3506-3513.) This appeal is automatic. (§ 1239, subd.(b).) STATEMENT OF FACTS THE PROSECUTION A. The Mexican Mafia ~ There were four main prison gangs divided by ethnic background. The Aryan Brotherhood had White members. The Black Guerrilla Family had African-American members. The Nuestra Familia andthe Mexican Mafia had Hispanic members. The Mexican Mafia was also knownas “Eme.” (15RT 2341.) The Mexican Mafia started in a Youth Authority facility in 1956, after a Hawaiian Gardens gang member namedLouis Florez, also know as Huero Buff, came up with the idea of forming a prison gang that would control criminal street gangs. When Florez and others were transferred to an adult prison, they recruited new membersfor the prison gang. Eventually, the Mexican Mafia gained control of mostjail and prison systems in California. Street gang members understood that, at some point, they would beincarcerated at a prison controlled by the Mexican Mafia, where they could be killed. (1SRT 2361-2365.) . California had 33 state prisons, which were divided into four categories of controlled custody: the minimum level (level one); the medium level(level two); the high level (level three); and the most restrictive custody (level four). (2ORT 2968-2970.) Several factors were considered in placing an inmate: the current offense, the length ofthe sentence, any prior prison record, and marital status. Inmates with continued management problems while in custody could be movedto a level three or a level four prison. (2ORT 2970-2971.) The Department of Corrections could not guarantee the safety of inmates who became informants or defected from a gang, even in a lowerlevel prison with less gang activity, because the Mexican Mafia had so much influence on inmates. (20RT 2984-2990, 2993-2994.) With very few exceptions, the Mexican Mafia controlledthe activities of Hispanicstreet gangs in the Southern California area. (1SRT 2363.) The membersofthe East Side Williams gang were “Surenos” whoaligned themselves with the Mexican Mafia. A “Sureno” was the term used to describe a soldier who aligned himself with gangs from the Southern California area. (ISRT 2363-2364.) The extent of the Mexican Mafia’s control over local gangs was profound; it had control of the Hispanic gangs inside Southern California during the early 1970s. (L4RT 2217-2218, 2348.) By the timeoftrial, Los Angeles County had about 700 geographically distinct gangs with 90,000 Latino gang members, the majority of them teenagers. (12RT 2355, 2402, 2416.) One such gang in Wilmington, the East Side Wilmas, was a “Sureno” or Southern California gang aligned with the Mexican Mafia. (12RT 2363-2364, 2420.) Rancho San Pedro was another Sureno gang with Mexican Mafialoyalties. Only a few gangs successfully resisted the Mexican Mafia’s influence. (12RT 2421.) The Mexican Mafia demanded “absolute loyalty,” and prohibited members from puttingtheir religion, family, or friends before the gang. The Mexican Mafia often used someonecloseto a victim, including family members, to threaten or even murderthe victim. (15 RT 2382-2383.) One primaryrule of the Mexican Mafia was that Surenos gang members, and their associates, were prohibited from cooperating with law enforcement or the legal system in any way. The Mexican Mafia covertly acquired police reports or court transcripts, also knownas “paperwork,” which were used to identify people violating these rules. (ISRT 2381-2382.) People testifying against the Mexican Mafia risked death for themselves as well as their families. Wives and relatives of gang members were expected to lie in court. Loyal gang members used any meansto delay, obstruct, or reverse criminal prosecutions against fellow gang members. (15RT 2384-2385.) Los Angeles County Sherriff’s Sergeant Richard Valdemar began his career at the Los Angeles County Men’s CentralJail. (l4RT 2213-21 18, 15RT 2331-2341, 2343-2350.) Sergeant Valdemar’s duties at the jail brought him into contact with incarcerated gang members, and he used these contacts as opportunities to gather intelligence regarding gangs, gang rivalries, and criminalactivities. (L4RT 2218-2119.) Sergeant Valdemar opined that incarcerated gang members committed crimes, including assault, battery, extortion, robbery, rape, murder, making contraband weapons, and narcotics crimes. (14RT 2219-2220.) Sergeant Valdemarwascross designated as an F.B.I. agent after participating in operations to bring RICO charges against prison gangs, including the Mexican Mafia. (1S5RT 2349-2351.) While working for a gang surveillance team from 1984 through 1991, Sergeant Valdemar observed Mexican Mafia members out in the streets. Based on this experience, Sergeant Valdemar opined that Southern California Hispanic street gangs associated and aligned themselves with the Mexican Mafia, and that Northern California gangs aligned themselves with Nuestra Familia. In other words, these criminal street gangs are primarily under the control of the prison gangs. (ISRT 2341-2342, 2348.) In fact, the Mexican Mafia ordered street gangs to engage in crimesor other activity. (ISRT 2348.) | Sergeant Valdemaropined that the Mexican Mafia controlled criminal street gangs because “they foster a feeling of terror among the communities in which they operate, and especially among street gang members,andtheir reputation for violence and murder causes gang members to comply with their wishes.” (15RT 2399-2400.) Asan investigator and expert for the federal task force, Sergeant Valdemar worked on operations that secretly recorded Mexican Mafia meetings discussing criminal activity. The task force used video and audio recordings. (15RT 2351-2352.) The meetings were primarily about murders and drug dealing. The criminalstreet gangs aligned with the Mexican Mafia were responsible for controlling territory, making money through criminalactivity, and turning over a portion of that money to the Mexican Mafia. The payments to the Mexican Mafia were known as “taxes.” Some of the money waspassed to incarcerated members. (15RT 2353-2355.) In exchange for the paymentof taxes, the Mexican Mafia ostensibly protected local gang membersagainst drug-related robberies by killing the robbers. (15RT 2396-2370.) Local gang members whofailed to pay taxes could be marked for death. (ISRT 2365, 2669, 2403.) The term “greenlight” refers to a person whom the Mexican Mafia had marked for death. Such persons were put on a “greenlightlist.” (15 RT 2371.) Getting offthe list required intervention by a gang member, making a large paymentto the Mexican Mafia, or committing a murder for the Mexican Mafia. However, on someoccasions, these people were killed anyway. (15 RT 2380-2381.) Around 1997, law enforcement authorities intercepted several green-light lists, some recordedin voicemail, containing the names “Huero” and “Spider.” (1SRT 2440-2441, 2444.) Sergeant Valdemar opinedthat a Hispanic criminalstreet gang member with tattoos indicating he was aligned with the Mexican Mafia, who robbed drug dealers in San Pedro and Wilmington and failed to pay taxes to the Mexican Mafia, would be marked by the Mexican Mafia for retribution and put on the greenlightlist. The retribution in such a case would be murder. (15 RT 2378-2380.) B. Appellant’s Street Gang and Mexican Mafia Affiliations On July, 2, 1997, Los Angeles Police Detective Debra Winter, and her partner, Detective Carolyn Flamenco, were assignedto investigate the Escareno homicide. They contacted appellant at HarborJail for the purpose of observing his tattoos. Appellant’s tattoos included a rose on his left wrist and left bicep, the number 13 on the web area of his left hand, depictions of “comedy clown faces”on his right shoulder, the words “ghost town gang”on the center of his neck, the words“I’m so proud”and a rose on the right side of his neck, “3CE”onhis left foot, and “SUR” and ~ “Wilmero”on his back. (13RT 2040, 2042-2043, 2045-2046.) According to Sergeant Valdemar,a tattoo of the letters “SUR” was the phonetic pronunciation of the Spanish word for “South,” and was an acronym for “Southern Race United”or “Raza.” That kind oftattoo showed a pledgedofallegiance and support to the Mexican Mafia. The numberandletters “3CE” stood for the number 13, which was another reference to the Mexican Mafia. These tattoos showed membershipin a Sureno gang and loyalty to the Mexican Mafia. (15 RT 2366-2367.) A tattoo of the letters “ESW” showed membershipin the criminalstreet gang known as Eastside Wilmas or Wilmington. (15 RT 2367-2368, 2429- 2430.) Sergeant Valdemar opinedthat appellant’s tattoos showedhistriple membership in Surenos, the East Side Wilmas, and oneofits subsets, the Ghost Town Locos. (15RT 2449-2430, 2443.) C. | Codefendant Grajeda’s Street Gang and Mexican Mafia Affiliations California Department of Corrections Special Agent Leo Duarte had worked at Soledad State Prison, where he came into contact with gang members during investigations that involved a stabbing or an assault by one inmate on another. While working at Chino State Prison from 1983 until 1996, Agent Duarte’s duties also brought him into contact with gang members. (20RT 2971-2974.) In 1997, when Agent Duarte becamea special agent, his duties included investigating parolees andassisting in prison investigations, Agent Duarte was also assigned as a “gang agent,” andhis duties included monitoring and tracking prison gangs. (2ORT 2975-2976.) Based on four monthsof personally observing codefendant Grajeda in prison, Agent Duarte opined that codefendant Grajeda was an associate of the Mexican Mafia. (2IRT 2968-2969, 2971-2973, 2957, 2990.) Mexican Mafia associates acted as “soldiers” for members and did favors for them. (16RT 2987.) According to Sergeant Valdemar, codefendant Grajeda’s tattoo ofa frog and the words “La Rana” showed he was a member ofLa Rana, a gang ‘located in the general area of San Pedro and Wilmington. (15RT 2430- 2431, 2435-2436.) Codefendant Grajeda’s older “SUR”tattoo (SRT 2436-2437, 2446) showedthat he had made a pledge ofallegiance and support to the Mexican Mafia. (15RT 2366.) D. Background Information Robert “Huero” Dunton was a drug dealer, selling mostly rock (“crack”) cocaine and crystal methamphetamine. (11RT 1822; 1 6RT 2525; LORT 2927; 21RT 3078; 22RT 3221.) Robert “Spider” Acosta, a street fighter in his early thirties, was “Dunton’s muscle.” (23RT 3483-3484.) Witness One’ had known Dunton and Acosta since 1974 or 1975, when they were kids, because they hung around the same gang as Witness One’s step kids. (22RT 3221, 3283.) That gang was knownas Rancho San Pedro or “RSP.” Witness One developed a “pretty good relationship” wit h Acosta. Over the years, Witness One saw Acosta and Dunton, except when Acosta wasin prison. During the two years before Acosta and Dunton were killed, Witness One saw them everyday. Witness One also bought 4 Witness One hadagreedto testify truthfully and completely regarding the homicides being prosecuted in exchangefor aroundthe clock protection, relocation after thetrial, and a per diem allowance of $30. Witness One understoodthat his testimony would involveincriminating himself in crimesincluding murder, and that he had not received any promise that he would not be prosecuted for such crimes. Healso acknowledgedthatin the late 1960s he had been convicted of auto burglary and sentencedto three yearsin state prison. (J9RT 2910-2912; 22RT 3323-3324.) Beforetrial, the prosecutor asked that Witness Oneandthree other witnesses not be namedin the record. (IRT 156-158, 161, 211.) There was no objection to the use of their names in the courtroom. (RT 157-158.) At the time oftrial, Witness One believed his life was in danger. (24RT 3553-3554.) 10 drugs from Dunton. > Witness One believed that codefendant Grajeda was associated with the Mexican Mafia. (24RT 3552-3553.) Witness Two knew codefendant Grajeda.° Codefendant Grajeda had been with Witness Two’s niece for five years, and they had a child together. (16RT 2577-2583.) Witness Twohadthetattoos, “Harbor Area” and “San Pedro.” Witness Two knew Duntonbecause he lived in the apartment in the back of Witness Two’s mother’s home. Witness Two knew Acosta from living in the same neighborhood. (16 RT 2583-2586, 17RT 2664.) E. Counts 3, 4, and 5: Appellant Kidnaps, Robs, and Murders Rajandra Patel 1. Patel’s Son Sunjal Patel (“Sunjal) testified that his father, Rajandra Patel, was 49 years old when he died. Patel had worked for 20 years at Allied Signal Automotives in La Palma. (12RT 1868-1870.) Patel lived with his wife, Sunjal, Sunjal’s wife and daughter, and anotherson. Patel owned a white Toyota Camry with the license plate: “POOJA 96.” (12RT 1871.) Sunjal ° Witness One primarily used heroin, and had used heroin “on and off” for 40 years. He used $20of heroin a day in order to prevent “getting sick.” He also smoked crack cocaine daily. Sometimes he used methamphetamine. Attrial, Witness One no longer considered himselfa heroin addict. (22RT 3221-3226, 3283-3284; 24RT 3506-3509.) Witness One admitted he had committed robberies in the past and usually used a knife. (22RT 3319-3320.) Witness One agreed he was an accessory after the fact to the Escareno murder and mightbe prosecuted forthat crime. (22RT 3320, 3324.) Witness One knew he could go to prison for helping Acosta to sell drugs. (22RT 3321.) ° Witness Two knew ofa person knownas Boxer, who wasreputed to be “a little hard core guy” and a “gang banger.” (17 RT 2646-2649.) Witness Two had never met “Boxer,” although he had heard that Boxer and codefendant Grajeda collected taxes for the Mexican Mafia. (18RT 2771- 2772, 2786.) 11 last saw his father on May 25, 1997, at about 9:00 p.m., whenPatel was leaving home in his Camry. Patel was wearinga bracelet, a gold watch, and achain. Attrial, Sunjal identified his father’s bracelet and watch. (12RT 1872-1873.) | 2. The Police Find Patel’s Body On May26, 1997, at around 5:00 a.m., Los Angeles Police Detective Sal La Barbera was assignedto investigate Patel’s death.’ Detective La Barbera went to the northbound Terminal Island freeway on-ramp between Anaheim and Pacific Coast Highway. (ORT 1475-1477; 12RT 1858-1859.) Uniformed officers had contained the scene using police vehicles, crime scene bannertape, and flares. It was just turning light on a clear and dry morning. The roadwayand the shoulder were dry. Patel’s body was found on the shoulder areaofthe on-ramp. Hehad been shot andstabbed. Three expended .40 caliber cartridge casings were discovered: one about 90 to 100 feet from Patel’s body; another a few feet away from thefirst casing, and thethird a few feet from Patel’s body. There was blood on th e shoulder area which was about 75 feet from Patel’s body. (ORT 1 478-1486, 1494-1496, 1501-1505.) On May28, 1997, Los Angeles Police Officer Sheldon Nicholson was on patrol in the area covered by the Harbor Division. At about 11:15 p.m., Officer Nicholson wasdirected to go to the alley in the rear of 648 WestIst Street in San Pedro, where he discovered Patel’s car. The car’s in terior was completely burnt. Patel’s car was towedto the police garage in San Pedro. (12RT 1877-1880.) 7 Patel’s identity was not immediately known because there was no identification on his body and variousinitial fingerprint searches came back negative. Detective La Barbera discovered Patel’s identity by checking missing person reports, finding a missing person flyer in Torrance, and matching fingerprints from Patel’s DMV records. (QRT 1486-1488.) 12 3. Medical Forensic Evidence An autopsy established that Patel’s death was caused by multiple injuries. The primary injury was a gunshot wound wherethe barrel of the gun wasin contact with Patel’s head. The bullet entered through the back _ middle of Patel’s head, went throughhis brain, and exited throughhis right - temple. Patel had been stabbed intheleft side of his neck andhisleft chest. The stab wound to Patel’s chest was a cause of death because his lung was punctured andbled into his chest cavity. (QRT 1523-1530, 1565.) Patel’s chin and left cheek had been cut. (QRT 1135.) According to the medical examiner, a person stabbed in a major vessel such asa large artery in the neck, leg, or arm, would typically die within a minute. Stab woundsto the chest or abdomenthat did not hit a large artery took longer to cause death, and the victim couldliveforfive to ten minutes depending on the circumstances. (ORT 1531-1532.) Jon Babicka worked as a criminalist for the Los Angeles Police Department Crime Laboratory. He was assigned to the Serology Unit, which involved the study of bodily fluids such as blood, semen,and saliva. (12RT 1882-1883.) Babicka identified six photographs of Patel’s vehicle. Hecollected potential blood evidence. Each area with potential blood evidence wascollected, marked with a separate number, and photographed. The sampleswere collected using either a cotton swab or swatch. At his laboratory, Babicka prepared the samples for testing. Afterward, the samples were booked into evidence and stored. (12RT 1884-1889.) At trial, Babicka identified the three swatches he had collected. (12RT 1896- 1902.) William Moore workedasa criminalist for the Los Angeles Police Department’s Scientific Investigations Division in the Forensic Toxicology Unit. (12RT 1889-1892.) Moore examinedthe three swatchescollected by Babicka for the presence of human blood. All three swatches contained 13 humanblood, but Moore was unable to determineifthe blood was from Patel using enzyme typing techniques. He recommendedthat the blood samples be tested using DNA techniques. (12RT 1892-1894.) Harry Klann worked asa criminalist for the Los Angeles Police Department’s Scientific Investigations Division in the Serology DNA Unit. Klann compared the three swatches containing human blood collected from Patel’s vehicle with a sample of Patel’s blood collected during the autopsy. (12RT 1903-1907.) Usingsix tests, Klann determined that the blood was consistent with one out of 60,000 people in the general population and was consistent with Patel’s blood. Klann explained that he conductedall the tests he could perform in 1998. (12RT 1908-1911.) Sometime before Acosta and Dunton were killed, appellant brought Patel’s jewelry to Dunton’s apartment. Appellant was accompanied by another person known as“Little Diablo.” Appellant was driving a black and gray “older Ford”or a black Toyota pickup. Appellant and Witness One, and perhaps “somegirl” were at Dunton’s apartment at that time. Appellanttried to sell the jewelry to one of Dunton’s connections, but that “never materialized.” Appellant left the jewelry at Dunton’s apartment. (22RT 3230-3232, 3253, 3255-3258; 24RT 3529-3530.) Dayslater, appellant asked Witness Oneto burn Patel’s car, which was parked in an alley behind Dunton’s apartment. Appellant told Witness Oneto check the trunk and makesure there was no bloodinside. Witness Onegot the keys from a different location, and took Patel’s car to a 7-11, where he purchased two bottles of rubbing alcohol. He took the car to an alley aboutfive blocks from Dunton’s apartment between First and Santa Cruz. Witness One poured mostofthe alcohol onthe upholstery, used the remaining alcohol and a rag to makea wick, and threw the wickinside the car. After returning Dunton’s apartment, Witness One told appellant what he had done. Witness One burned Patel’s car because he and appellant 14 were “pretty tight for a while.” (LORT 2931-2934, 2938-2939; 20RT 3039; 22RT 3229-3230, 3257-3260.) Aboutthree or four days before burning Patel’s car, appellant talked about the victim, stating: “I hated to kill that guy because he hadballs’ Andhesaid, ‘If you’re going to do it, go ahead and shoot me, mother fucker.’” Witness One believed he was burning “a murder car” because he had heard appellant talking about the ownerofthe car, and appellant had asked him to checkthe trunk for blood. ® Witness One “put that together” with the jewelry and the “brick telephone” appellant brought to Dunton’s apartment. At trial, Witness One identified Patel’s watch andbracelet. (19RT 2937-2940; 22RT 3252, 3255.) 4, Witness Three Witness Three lived in Wilmington with her husband, who was “good friends” with appellant. Appellant visited her home three or four times a weekto talk with her husband. Witness Three had a “hi and bye” relationship with appellant. In late May 1997,after Witness Three and her husband has returned from an overnight trip to Mexico, appellant brought Patel’s bracelet and watch to their home. Appellant offered to sell them Patel’s jewelry. (12RT 1912-1916.) _ Whenappellant displayed Patel’s bracelet and watch, Witness Three’s husband askedif she thought the items were “real.” Witness Three told her husbandnot to buy the items. (12RT 1917.) Witness Three’s husband wentto appellant and told him the items were not real. Appellant responded: “Yes, it is real. It’s from this Mexican man J havein the trunk 8 On cross-examination, Witness One said that appellant put “a hit” on him because he did not completely burn the car. Appellant asked Dunton to kill Witness One, but Dunton refused to kill him. This occurred before Witness One and appellant wentto the “junk yard.” (23RT 3448- 4350; 24RT 3483-3484, 3491-3492, 3511-3514, 3542-3543, 3549.) 15 of the car I just killed.” ? Witness Three looked out a window. She saw the white car that appellant had parked outside. She had never seen that car before that day. Witness Three’s husband purchased Patel’s bracelet and watch by paying appellant with narcotics. (12RT 1918-1919, 1924, 1926.) Subsequently, on a trip to Las Vegas with her husband, Witness Three pawned Patel’s bracelet and watch. She received $600 to $700 for the items. At trial, Witness Three identified a pawn shopticket and a slip for the bracelet and watch. The slip was dated June 5, 1997. (12RT 1919- 1922.) Sometimeafter returning from Las Vegas, Witness Three and her husband werearrested, and the police found the pawn shopslip inside Witness Three’s handbag. Witness Three spoke with a police detective about the bracelet and watch, and waslater released. (I2RT 1228-1231.) Los Angeles Police Officer Frank Caincoy went to the pawn shop in Las Vegas where Witness Three had pawnedPatel’s bracelet and watch, and took possession of these items. (13 RT 1968-1972.) 5. Angel Rodriguez On June 8, 1997, Los Angeles Police Officer Terry Shelley went to Angel Rodriguez’s residence in Wilmington. Rodriguez gave Officer Shelley a Smith and Wesson .40 caliber stainless steal semi- automatic handgun and a magazine containing six bullets. (2RT 1943-1948.) Afterward, Detective La Barbera was unable to locate Rodriguez. (12RT 1859-1860.) ° Witness Three did not make a police report because she thought appellant was joking when he said he had killed a man. (12RT1927.) 16 6. Firearm Forensic Evidence Anthony Paul wasthe firearms examiner whotested the spent cartridge casings foundat the scene ofPatel’s death. (14RT 2130-2134.) He also examined the Smith and Wesson handgun and magazine containing six live rounds that Rodriguez gave Officer Shelley. (L4RT 2135-2136.) According to Witness One, appellant broughtthis handgun to Dunton’s apartment. (20RT 3004.) Paul determinedthat the spent cartridge casings had been ejected from the handgun (14RT 2137-2143) Rodriguez gave Officer Shelley12RT 1943-1948). F. Counts 8 and 9: Appellant Murders Raul Luna 1. Luna’s Brother On June 9, 1997, Rudy Luna (“Rudy”) lived with his brother, Raul Luna, his other brother, Andy, along with Andy’s wife and son. Rudy went to bed at about midnight. At about 12:10 a.m., Rudy heard a car pull up in front of his apartment. Rudy heard the car’s door open andclose, and then he heard the car drive off. A few minutes later, Rudy heard somerustling in the bushesin front of his bedroom window. Rudy looked outside, but did not see anything. A minute later, Rudy heard someonesay: “There’s somebodyin there, there’s somebodyin there.” (13RT 2057-2059.) | Rudy did not recognize the voice he heard outside his bedroom window. Rudy looked out his window a secondtime, but didn’t see anything. A few minutes later, Rudy then heard someonesay, “He’s here.” Rudy heard Lunasay, “Oh, shit.” Afterward, Rudy heard one gunshot, and then “hit the ground.” little later, after hearing a garbled cough, Rudy went outside and discovered Luna lying on his back. Luna’s head was bleeding. (13RT 2060-2061.) Luna’s autopsy established that the cause of his death was a shotgun woundto the head. The shotgun muzzle was6 to 17 12 inches from Luna’s head whenit was discharged. (11RT 1801-1804, 1807-1808.) On June 10, 1997, about 1:20 a.m., Los Angeles Police Detective Geoffrey Lancaster was assigned to investigate Raul Luna’s death. At approximately 1:50 a.m., Detective Lancaster arrived at a residence located in Torrance. (11 RT 1695, 1697-1699.) Detective Lancaster observed Luna’s body lying on the front yard, adjacent to a walkway running from the sidewalk to the front porch. (11 RT 1700.) An unspent 12-gauge shotguncartridge was found about15 feet from Luna’s body. Luna had a shotgun woundto theleft rear portion of his head. (12 RT 1701-1703.) A clear plastic baggie containing methamphetamine was found near Luna’s knee. (LIRT 1710-1711.) An ATMcard wasfound near Luna’s body. (11RT 1714.) Duringthe early morning hours of June 10, 1997, Torrance Police Officer Steve Fletcher (13RT 2079-2081) founda “gray over blue” Oldsmobile parked about 150 to 200 yards from the crime scene. The car’s windows were down, the key wasin the ignition, the engine was warm, and the tires were wet from water in the gutter. Officer Fletcher notified his sergeant, who in turn notified the investigating officers. (13RT 2082- 2085.) Detective Lancaster discovered a white plastic bag containing seven unspent 12-gauge shotgun shells on the back seat of the car. (11RT 1703- 1706, 1710.) | | Torrance Police Officer Brook McMillon had the car towed to the police tow yard. Afterward, she checked the car for fingerprints. (13RT 2086-2090.) Latent fingerprints were found. Out of 34 latent fingerprints, 10 matched appellant’s fingerprints (11RT 1716-1717): one from the roof on the passenger side; two from the exterior surface of the passenger door; one from the rearview mirror; three from the exterior surface of the driver’s 18 window; and three from the exterior surface of the driver’s door. (13RT 2091-2094, 2099-2107.) 2. Charles Orr | On June 9, 1997, Charles Orr lived in Torrance. (13RT 2068-2070.) At around midnight, Orr was working on his computer, when he heard a noise that soundedlike an explosion. Orr thought that a transformer had exploded. Ten to fifteen minutes later, Orr heard the sound of running, so he looked out of his window. Someoneran past his apartment. The runner sounded “very heavy footed” and was“[k]ind of noisy.” (13RT 2071, 2074.) Orr went outside and walked to the end ofthe street, but did not see anyoneat that time. (13RT 2072-2073.) Later that morning, Orr briefly spoke with a police officer. (13RT 2074-2075.) It was “very possible” that Orr told the police that the person who ran by his apartment was “dark- skinned” because Orr thought the person was Hispanic, or dark-skinned, but not Black. (13RT 2075-2078.) 3. William Owens William Owensandhis wife lived in a large apartment complex in Torrance. (14RT 2180-2182.) On June 10, 1997, at around 1:30 to 1:45 a.m., Owens wasoutside smokinga cigar near the corner of a park. Owens heard a gunshot, which was unusual for his neighborhood. Aboutfive to ten minutes later, appellant ran up to Owensandaskedfor rideto his girlfriend’s apartment. Owens denied having a car. Appellant replied, “Okay man,” and kept running. (14RT 2183-2187.) At trial, Owens identified appellant as the man who confronted him. (14RT 2201-2204, 2249.) 4. Police Investigation On June 10, at about 2:30 a.m., Detective Lancaster contacted Owens. (15RT 2322-2323.) Owensgave a description of the man who confronted 19 him: a Hispanic male, 25 to 30 years old, wearing a white and red nylon jacket, blue denim pants, and white shoes. Owens estimated the encounter lasted 20 seconds. (15RT 2326-2327.) Later the same day, Detective Lancaster contacted Owens and showed him a photographic six-pack. Owens said that appellant’s photograph “somewhat resembled” the man whoconfronted him. (15RT 2324-2325.) 5, Evidence Related to Luna’s Cellular Telephone Luna’s cellular telephone was recovered from Dunton’s apartment. (11RT 1740-1742.) Raul Luna, Sr., Luna’s father, identified Luna’s cellular telephone. (14RT 2150-2152.) Latent prints on the cellular telephone weretested, but no identifiable prints were found for appellant. (1IRT 1706-1707, 1715-1716; 14RT 2165-2167.) According to Witness One, appellant brought Luna’s telephone to Dunton’s house. (20RT 3005.) Shannon Harvey, custodian of records for Airtouch Cellular, identified Lunaas the customer who ownedthecellular telephone. (14RT 2153-2158.) According to the records, the cellular telephone was used on June 10, 1997, at 12:14 a.m. to make a 21-secondcall to (310) 718-9703. At 1:12 a.m., it was used to makea 33-second call to (310) 249-3213. At 1:13 a.m., it was used to makean eight-second call to (310) 260-3402. At | 1:14 a.m., it was used to make a 38-second call to (310) 793-0868. At 1:15 a.m., it was used make an eight-secondcall to (310) 808-2211. At 1:16 a.m., it was used to make a nine-second call and a ten secondcall to (310) 808-2211. At 1:30 a.m., it was used to call a one-minute and a nine-second call to (310) 513-9962. At 4:54 a.m., it was used to make a six-secondcall to (310) 549-3774. At 5:00 a.m., it was used to make a six-secondcall to (310) 548-3482. (14RT 2158-2160.) Jerre] Uhler, a special agent with telephone company GTE, examined records held by GTEregarding telephone calls made from Luna’s cellular telephone. The telephone number (310) 260-3402 was a GTEtelephone 20 number assigned to Southwest Paging. The telephone number (310) 793- 0868 was a GTE telephone numberassigned to America’s Best Cab. (14RT 2167-2170.) Antoinette Carter was a trainer and a custodian of records for the Pacific Bell telephone company,andtestified regarding telephonecalls made to Pacific Bell customers. The telephone number (310) 249-3213 was assigned to Page Net. The telephone number (310) 808-2211 was assigned to Hideo Ohta, doing business as “Yellow Cab.” The telephone number (310) 513-9962 wasassigned to Holland Hotel in Wilmington. The telephone number(310) 594-3374 was assigned to Marline Andrewsin Wilmington. Finally, the telephone number (310) 548-3482 was assigned to Robert Dunton in San Pedro. (14RT 2171-2173.) G. Counts 6 and 7: The Murder and Robbery of Jesus Escareno (Hung Jury) 1. Witness One On June 30, 1997, after Witness One burned Patel’s car, he and appellant drove to Wilmington looking for someone to rob. Witness One was driving and appellant wassitting in the front passenger seat. (1ORT 2940-2941; 22RT 3266.) They traveled in a gray Ford or a Toyota pickup truck. (22RT 3265.) Appellant had a shotgun that belonged to Dunton and Witness One. Theycalled the shotgun “Shorty.” (J9RT 2942; 22RT 3264; 23RT 3431-3432.) It was a “break open” shotgun and not a “pump” shotgun. (19RT 2943.) Dunton acquired the gun from someone who owed him money. (23RT 3433.) '° As Witness One and appellant passed a bar, appellant saw Escareno driving an “older Thunderbird” and commented: “Did you see that guy,all '° Witness One was shown People’s Exh. 50. According to Witness One,that shotgun wasnot“shorty.” (LORT 2943.) 21 them rings on his fingers.” Appellant and Witness One tracked Escareno. WhenEscareno stopped his car, Witness Onepulled directly behind him and stopped. Through the passenger window,appellant started talking to the man in Spanish. The man spoke in Spanish and was “mostly laughing.” Witness One only knew a little bit of Spanish, but heard appellantsay: “I got mucho[s] huevos and mucho corazon.” Appellant was saying he had “a lot of balls and a lot of heart.” (19RT 2944-2946; 22RT 3266-3268.) About two minuteslater, appellant fired a single shot at Escareno. Escareno “suddenly disappeared” after appellant shot him. Appellant told Witness Oneto take the victim’s car back to Dunton’s apartment where they could take Escareno’s rings off of his fingers. Escareno “took such a blast” that his head was “overat the passenger door” and “his left foot was up behind the steering wheel.” Witness One moved Escareno’s foot and drove away. Instead oftaking the car to Dunton’s apartment, Witness One drove about two blocks and parked the car behind a hamburgerstand. Witness One took Escareno’s billfold and walked back to Dunton’s apartment. On the way, Witness One purchased someheroin, which he used when he got to Dunton’s apartment. (19RT 2947-2950, 22RT 3270.) Appellant asked Witness One aboutthe victim’s rings. Witness One said he did not want to removerings from a dead man. Appellant asked about the victim’s money. Witness One gave appellant about $60. Appellant said, “Is that all.” Witness Onetold appellant that he bought a “dime bag” on the way to Dunton’s apartment. Dunton told Witness One that he “didn’t follow orders.” Witness Onereplied that he did not have to follow orders. Appellant told Witness Oneto drive the victim’scar to Dunton’s apartment. Witness Onegot a ride back to the victim’s car, and then droveit into an alley about one-half block from Dunton’s apartment. (L9RT 2950-2952, 2954; 22RT 3275.) 22 Witness One returned to Dunton’s apartment. When Witness One said the jewelry wasstill on the victim, appellant told Witness One: “Go ahead andgetit, mother fucker.” Witness One took the victim’s rings and two watches, went back inside Dunton’s apartment, and gave the itemsto appellant. " Appellant gave the items to Dunton, whosaid they were “costume jewelry” and threw them away. (19RT 2953; 20RT 3000; 22RT 3272-3273.) Appellant told Witness Oneto get rid of the car and the victim’s body. Witness One drovethe victim’s car to Park Plaza shopping center. Witness Onedroveto the back of the shopping center and took the body outofthe car. After seeing the victim’s head, Witness One decided to leave the body “where someone could find it.” Afterward, Witness One drove the victim’s car to an open garageandleft it there. As Witness One was walking away - from the car he noticed blood on his shirt, so he took it off and threw it in a trash can. (20RT 3000-3003; 22RT 3275-3276.) Witness One did what appellant told him to do because appellant “had the guns.” In addition to the shotgun called Shorty, appellant possessed a small shiny chrome-plated pistol that was “a smaller version of a .40 or a..45.” Appellant usually had a firearm in his possession. (20RT 3003-3004.) 2. Additional Witnesses DeannaGallardo lived in the area where Escareno waskilled. On June 9, at around 4:42 a.m., Gallardo woke up after hearing a gunshot. She “jumped out of bed and ran to the window.” Gallardo and her husband 'l Witness One did notrecall telling Detective Joya that appellant removed Escareno’s rings. (3271-3272.) 23 looked out a window,but neither one saw anything. After looking out another window,they heard a car skidding away. (13RT 1997-2001.) | Pedro Herreralived in the same area as Gallardo. He was getting a glass of water when he heard a gunshot. (13RT 2006-2009.) Deputy Winter interviewed Herrera, who said he saw a car double parked, heard a gunshot, and then saw the double parked car drive away. (13RT 2010- 2013.) 3. |Escareno’s Bodyis Found On June 9, 1997, at about 8:00 a.m., Frederick Odle discovered Escareno’s body near some garbagecans at Park Plaza Retail, located at 916 North Western. Odle had checked the samearea at 5:30 a.m., but Escareno’s body wasnotthereat that time. (13RT 2034-2037.) 4. Police Investigation On June 9, 1997, at approximately 8:45 a.m., Los Angeles Police Detective Debra Winter was assigned to investigate the death of Escareno. Detective Winter and her partner, Detective Carolyn Flamenco,drove to the shopping center where Escareno’s body was discovered. (9 RT 1570- 1572.) Escareno’s body was lying facedowninan alcoveat the rear of the shopping center. The top of Escareno’s head had been shot off. It appeared that rings had been removed from Escareno’s fingers. (9RT 1573-1575, 1578-1579.) Two dayslater, Detective Winter went to the location where Escareno vehicle was found, 449 Oliver in San Pedro. (QRT 1572-1573.) There was blood in the car, mostly on the front passenger seat and door. (9RT 1582.) Projectiles were discoveredin the car and were consistent with a 12-gauge shotgun firing double-aught buckshot. (1I5RT 2393-2394.) 24 5. Escareno’s Sister Maria Rosales, Escareno’s sister, lived with her brother, her husband, and her children at the time Escareno waskilled. Escareno worked as a bus boy for Carrow’s restaurant. On Sundays, Escareno typically worked from 2:00 p.m. until 10:30 p.m., went home to change clothes, and around 11:00 p.m. went to Los Tres Cochinitos restaurant to chat with friends. The Sunday before Escarenodied, June 8, 1997, Escareno came home from work and slept for a while. After sleeping, Escareno went out dancing at MiCasita, and afterward wentto Los Tres Cochinitos. (13RT 1975-1979.) Escarenoleft the restaurant at about 4:10 am. (13RT 1982-1984.) | During the early morning hours of June 9, Rosales was at home when she woke up after hearing a gunshot outside her apartment. At around 5:00 p.m., Rosales learned that her brother had died from police detective who cameto her apartment. Rosales identified her brother’s car from a photograph. (13 RT 1980.) According to Rosales, Escareno always carried his wallet. (13RT 2067.) 6. Appellant’s Spontaneous Statement Detective Winter had nointentto interrogate appellant regarding the Escareno homicide. However, after she asked appellant some standard booking questions, appellant told the officers that they must be busy because things had “gone crazy”in the harbor area. Appellant talked about a man having his head shot off on Western, a woman whohadbeenkilled and then wrapped and disposed in a dumpster, and two men whohad been shot and hadtheir brains splattered all over the place. Appellant mentioned that these victims could not be identified, and that their wallets were missing. According to Detective Winter, the police had not released any information that Escareno’s wallet had been stolen. (13RT 2043-2045.) 25 7, Firearm Forensic Evidence Diana Paul worked asa criminalist for the Los Angeles Police Department. Theparties stipulated that Paul was qualified to testify as an expert regarding firearms examination. In the course ofher duties, Paul performeda bullet path determination of a vehicle (Peo. Exh. 11) seized by the police. After examining the vehicle, Paul concludedthat projectiles foundin the vehicle were consistent with shotgun pellets known as “double aught buck,” which was a kind of buckshot. (15 RT 2392-2394.) This type of ammunition wastypically fired from a 12-gauge shotgun, which was designed for hunting medium to large game. (15 RT 2394-2395.) The driver side window ofthe vehicle was open. Paul determinedthat the twoprojectiles had a trajectory of upward andleft to right, which in this case was upward from the driver side door towards the passenger side. The shots were consistent with a shotgun beingfired through the opendriver’s side window. (15RT 2396-2397.) H. Counts 10 and 11: Appellant Murders Dunton and Acosta 1. Events Leading up to the Double Homicide About one or two months!” before Dunton and Acosta were killed, Witness One movedinto Dunton’s apartment. In exchange, Witness One gave Dunton $250 in rent and helped Dunton sell mainly “crack” and some “crystal meth.” Dunton weighed about 500 pounds, and hadtrouble moving, so Witness One would assist by letting people inside the apartment to buy drugs. (19 RT 2923-2928: 22RT 3219-3121, 3225-3226, 3228, 3274-3275.) 12 On cross-examination, Witness One acknowledged that on July 24, 1997, he “might have” told Detectives Winter and Flamenco that he moved into Dunton’s apartment on April 1. (22RT 3219-3220, 3285.) 26 About three weeks to a month before Acosta and Dunton werekilled, appellant came to the apartment to buy crack. Appellant was introduced as “Diablo.” Appellant and Dunton were friends, so Witness One saw appellant regularly. About two weeks before Acosta and Dunton were murdered, appellant began sleeping on the couch and showeringat Dunton’sapartment. (LORT 2929-2930; 20RT 3005; 22RT 3228-3229, 3273-3274.) . Appellant and Boxer were from rival gangs and did not get along. 8 (22RT 3294.) During the week before the murders, around June 27, Witness One saw Boxer at Dunton’s apartment. Boxer came to Dunton and said: “You ain’t paying your taxes and they’re getting on me because I’m not doing my job.” The next day, Boxer returned with his girlfriend and a “protégé.” Boxer took out a machete and told appellant: “Mother fucker, you ain’t never seen megooff, have you.” Boxer took $100 and appellant’s small shiny chrome gun. Appellant complained. Boxersaid he would return the gun to appellant. (2ORT 3006-3008; 22RT 3285-3287; 24RT 3541-3542.) After Boxer took appellant’s gun, appellant called someone and asked for a gun becauseit was “a matter oflife and death.” A manarrived at Dunton’s apartment and gave appellant a shotgun. Witness One and appellant cut six inchesoff the barrel and cut off the stock. This shotgun was used to murder Acosta and Dunton. (20RT 3010; 22RT 3290-3291- 3294.) '3 Witness Two knew of a person knownas Boxer, who wasreputed to be “a little hard core guy” and a “gang banger.” (17 RT 2646-2649.) Witness Two had never met“Boxer,” although he had heard that Boxer and codefendant Grajeda collected taxes for the Mexican Mafia. (18RT 2771- 2772, 2786.) 27 The day before Acosta and Dunton werekilled, in the afternoon, Witness One saw codefendant Grajeda at Dunton’s apartment. Codefendant Grajeda was with someone he knew as “Bimbo.” ‘4 After codefendant Grajeda and Bimboleft Dunton’s apartment, late at night, Witness One andappellant took a stolen black Toyota pickuptruck to a place in Wilmingtoncalled “the junkyard” or the “third world.” In that area, there were only junkyards and shipping containers. There wasa lot of drug dealing in the area. (20RT 3008-3012; 22RT 3289-3290.) Appellant had the sawed-off shotgun. (22RT 3289-3290.) Appellant and Witness One asked a manto get them drugs. Whenthe manreturned, appellant gotout of the vehicle and “drew down on him with the shotgun.” (20RT 3013, 3015.) Someone appeared from behind a fence and said, “Diablo,just take it and go.” Afterward, appellant and Witness One went back Dunton’s apartment. Appellant parked the truck down the street. (2ORT 3014-3015.) The day before the murders, at about 4:00 p.m., Witness Two’? saw codefendant Grajeda at 12th Street and San Pedro along with some other \4 Witness Two was known as Bimbo. (18RT 2771.) '5 Witness Twobelievedthat his life was in danger because he was testifying at appellant’s and codefendant Grajeda’s trial. Witness Two wantedto be placedin a “level one” penalinstitution because he felt that he would be safer. (18 RT 2787-2788, 2792.) Witness Two admitted that he had severalprior felony convictions, some involving violent crimes. He also admitted that he had beenincarcerated multiple times, and was currently incarcerated because he had violated his probation. For the probation violation, Witness Two wasoriginally facing 12 years in prison. However, in exchange fortestifying truthfully at appellant’s trial, Witness Two wasoffered a maximum sentence ofsix years in prison with credit for time already served. Also, Witness Two was promised that his testimony could not be used against him unless he committed perjury. Witness Two did not wantto besent to a “level four” prison because he “wouldn’t last a day”after he had “taken a chance”bytestifying. (17 RT 2649-2654.) 28 men whowere drinking at Donald Juarez’s apartment. (16 RT 2588-2590.) Codefendant Grajeda talked about appellant and Acosta, whom hereferred to as Diablo and Spider, and complained they both failed to pay taxes to the Mexican Mafia.'° Codefendant Grajeda said that he wanted to go to Dunton’s apartment and “take care of Diablo.” (16RT 2592-2595.) Witness Two and codefendant Grajeda left together and drove to Dunton’s apartment. After they arrived, they walked up to Dunton’s apartment. Appellant opened the door, and Witness Two and codefendant Grajeda went inside. At that time, Witness Two wasinside the apartment with appellant, codefendant Grajeda, Dunton, and Witness One. (16RT 2595-2600.) Witness Two heard another person inside the apartment, but did not see that person. While the others talked, appellant was “nervous, walking back and forth.” Witness Two saw the back door move, so he wentto the bathroomandtried to listen for noise in an adjacent room. Witness Two heard someoneonthe otherside of the door. Witness Twoleft the bathroom and told codefendant Grajeda that they should leave becauseit did not “look right.” (16RT 2606-2609; 17RT 2710.) Witness Twoand appellant got up to leave. Appellant wasthefirst one out the door. Codefendant Grajeda and Witness Two followed. Appellant and codefendant Grajeda spoke privately for a few minutes. Acosta arrived and greeted codefendant Grajeda, Witness Two, and possibly appellant. (16 RT 2601-2604, 16 RT 2609-2610.) '€ Witness Two admitted that his “gang nickname” was “Bimbo.” Dueto his age, Witness Two was considered a “veterano.” (18RT 2771- 2772, 2784-2785, 2971-2792.) Witness Two was an associate of the Mexican Mafia while he was incarcerated, but this association ended when he wasreleased from prison, so he had nevercollectedtaxes for the Mexican Mafia. (17 RT 2665-2666; 18RT 2785.) 29 Witness Two drove codefendant Grajeda back to San Pedro. Along the way, codefendant Grajeda asked Witness Two to pick him upat 8:00 p.m.and take him back to Dunton’s apartment so he could “take care” of appellant and Duntonforfailing to pay their taxes to the Mexican Mafia. Codefendant Grajeda specified that he would kill appellant and then Dunton,ifhe refused to pay his taxes. Witness Two droppedoff codefendant Grajeda, picked up a friend, and drove to the Rose Room to have a beer. About 15 minutes later, at around 6:00 p.m., Witness Two drove to his mother’s apartment wherehe spent the night. (16 RT 2610- 2614; 17RT 2718.) Alicia Gandara was Witness Two’s wife. (19RT 2894-2895.) They stayed the night together at her in-laws’ apartment in San Pedro. Witness Twotold his wife that codefendant Grajeda wouldcall at 8:00 p.m. Witness Twoinstructed his wife to answer the telephoneto tell codefendant Grajeda that he was asleep, and that she would not wake him up. (16RT 2614-2615; 18RT 2769-2770.) Around 8:00 to 8:30 p.m., Gandara received a telephone call from codefendant Grajeda. (19RT 2898, 2906- 2907.) Gandaradid as her husbandinstructed. (19RT 2899-2902.) Eddie Maldonado!’ considered Acosta his father. (16RT 2506-2508.) On June 30, 1997, between 11:30 p.m. and midnight, Maldonado wasat home with Acosta, when Acosta received a telephonecall. The call lasted a couple of minutes. After Acosta hung up the telephone, he started pacing back and forth. Afterward, Acosta wentinto his bedroom for a few minutes and prepared to leave. Maldonado asked Acosta what was the matter. (16RT 2509-2510.) Acosta said he had to go to a meeting. (16RT 2517.) '7 Maldonado was21years old at the time oftrial. (16RT 2508.) 30 2. The Double Homicide As Witness One andappellant walked toward Dunton’s apartment, appellant said: “They sent somebody to fuck Huero and Spiderup.” Witness Oneand appellant went inside the apartment and joined Acosta, Dunton, and codefendant Grajeda. Witness One asked appellant for some crack. Appellant said there was no more crack. Witness One cussed and then headed for his room. As he passed behind Acosta, Acosta handed him some methamphetamine. Witness One wentto his room to prepare the methamphetaminefor ingestion. (2ORT 3016-3020; 22RT 3297, 3299- 3301, 3312-3313.) At that time, appellant had the sawed-off shotgun, and codefendant Grajeda had the shotgun they called “Shorty.” (20RT 3034.) From his room, Witness One heard what wassaid in the other room, and he recognized individual voices. He heard Dunton said: “[I]f1I got to — go, I’m goingto go like a man.” Codefendant Grajeda said: “You know the rules.” Appellant said: “Yeah, forward and backward.” Then appellant said: “Don’t point that at me. I don’t like people pointing things at me.” Afterward, “fa]ll hell broke loose” and Witness One heard about four gunshots and then someone bumping into the washing machineasheleft through the back door. (20RT 3021, 3033-3036; 22RT 3307; 24RT 3486- 3488.) Witness Oneleft his room and saw Acosta’s body lying by the front door and Dunton’s body on the couch with his head to the side. (2ORT 3036-3037; 22RT 3303.) Witness Oneleft through the back door, rode his bicycle to a store, called 911, and then rode to an AM/PMgasstation. (20RT 3037-3038.) Dunton’s autopsy established that the cause of death was a “single tight shotgun woundto the head that caused the destruction [to the scalp and head bone] because there was an explosive effect underneath the scalp 31 as the hot gases were trapped in the head andscalp, and the direction of fire wasto the left downward and towardsthe front.” Duntonalso suffered non-fatal gunshot woundsto his right upper arm andtheright chest area. (LIRT 1823-1825.) Acosta’s autopsyrevealed “a large gapping gunshot wound[to] the | front right side of the throat,” and the shotgun was“at the throat in some contactbut not pressed tightly against throat.” (1 IRT 1811-1812.) The parties stipulated that the bodily fluids drawn from Robert Acosta, also knownas Spider, and Robert L. Dunton, also knownas Huero, were analyzed by toxicologists. Acosta’s blood sample was positive for the presence of methamphetamine, amphetamine, and phencyclidine. Dunton’s blood sample waspositive for the presence of alcohol, methamphetamine, and amphetamine. (26RT 3768-3769.) 3. The Police Investigation Los Angeles Police Officer Rafael Mora drove to a triplex located at 2332 West O’Farrell Street in San Pedro to investigate an allegation of assault with a deadly weapon. Officer Moraand other officers were unable to get through the front door of the apartment, so they went in the back door. After determining that there wasnoonealive inside the apartment, and a paramedic confirmed that the victims were dead,the officers left the apartment and did not allow anyoneto enter it before the detectives arrived. (15RT 2449-2453.) At approximately 4:20 a.m., Los Angeles Police Detective Olivia Joya was assigned to investigate the deaths of Robert Dunton and Robert Acosta. Detective Joya and her partner, Detective Scott Masterson, drove to the San Pedro triplex. (11RT 1727-1729, 1734.) According to Detective Masterson, Acosta’s head was so close to the front doorthat the door could not be opened without disturbing Acosta’s body. (2IRT 3119-3121, 3126.) Dunton’s body was on a living room sofa. 32 There were four expended Remington shotgunshells on the floor and a bag of several Remington shotgun shells on a table. There was “blood matter” on the walls and ceilings. Luna’s cellular telephone was found on the sofa (Peo. Exh. 20), which waslater taken into custody by Detective Masterson. (1IRT 1737-1741, 1749-1751, 1754-1756, 1764-1765.) A metal tube was found underneath Dunton’s body. (11RT 1742-1743.) A loaded gun was found tucked in Acosta’s left arm pit. (11RT 1757-1758, 1778.) Narcotics were found in the apartment, including rock cocaine packagedforsale, as well as paraphernalia for using drugs. (11RT 1759-1761, 1784-1785.) Witness Oneinitially told Detectives Masterson and Joya that he foundthe bodies after returning from getting some food, because he was afraid of being viewed as a suspect. (2ORT 3038-3039; 22RT 3320; 23RT 3376-3378; 25RT 3557-3659.) '° 4. Appellant’s Arrest Witness Four was appellant’s cousin. Witness Four lived in Long Beach. (21RT 3083-3084.) On July 2, 1997, during the late afternoon, Witness Four was home with her two-year-old daughter. Appellant knocked on her door. Appellant had a shotgun and a bag. Even though Witness Four had no contact with appellant for about eight years, appellant demanded shelet him stay. Witness Four left with her daughter and went to a friend’s homeandcalled the police. When the police arrivedat the '8 Witness One wasinterviewed “several times,” but he did not remembereverything that he said during these interviews. (23RT 3379- 3386, 3423-3431, 3434-3438, 3442, 3446-3448; 24RT 3488-3490, 3495- 3499, 3515-3516, 3549-3550; 25RT 3657-3660) Witness Onehadlied “[p]robably more than a few”times during the course of the investigation. (22RT 3301-3306; 23RT 3428, 3430, 3437-3440, 3446-3447, 3452.) He also lied to the 911 operator because he did not wantto be placedin the apartment during the murders. (22RT 3327-3329; 23RT 3358-3361.) 33 friend’s home, Witness Fourtold them what had happened. (21RT 3085- 3087.) Appellant wasarrested outside of Witness Four’s home, without incident, after the police ordered him to exit the residence. The police seized a shotgun (Peo. Exh. 50), that was loaded with six live rounds. (21RT 3098-3103.) 5. Codefendant Grajeda Admits Killing Dunton and Acosta Witness Six had known codefendant Grajeda for a couple ofyears, and had stayed at Dunton’s apartment. After Witness Six learnedthat Acosta and Dunton had been murdered, she spoke with codefendant Grajeda by telephone. Codefendant Grajeda told Witness Six that the police were looking for him, and askedif she had spoken with the police. (21RT 3077-3080, 3082.) . Witness Twolearned about the deaths of Acosta and Dunton about two days after they were killed, and saw codefendant Grajeda at the Rose Room beforehe and his wife took a vacation on July 4, 1997. (16RT 2615- 2616; 18RT 2786-2787.) Witness Twoasked if Dunton and Acosta had beenkilled. Codefendant Grajedareplied, “Yeah,I did it.” (16RT 2617- 2618; 17RT 2704-2706.) 6. Appellant Admits He Wasthe Last Person at Dunton’s Apartment When Dunton and Acosta Were Murdered Witness Five was Acosta’s wife and the motheroftheir children. Witness Five knew appellant and codefendant Grajeda. She had known appellant for 15 years through friends and family. Witness Five was in San Diego when Acosta waskilled and when she was notified of his death. . '9 According to Detective Masterson, Witness Four told him that appellantarrived at about midnight. (21RT 3123.) 34 (16RT 2518-2520.) On July 7, 1997, Witness Five received a telephone call from appellant, who asked herto visit him at the county jail. During the telephonecall, appellant offered his condolences and also laughed. (16 RT 2528.) On July 21, 1997, Witness Five went to visit appellant. 20 (16RT 2523-2524, 2541.) Appellant talked about the deaths of Acosta and Dunton, but denied shooting them. Appellant said his fingerprints were all over the apartment as well as Dunton’s face, andthat he waslast person present when Acosta and Dunton were murdered. (16 RT 2525-2526.) 7. Acosta’s Note to His Wife Witness Five and Acosta had a Bible they kept in a bedroom dresser. Five days after Acosta was killed, Witness Five discovered a hand-written note from Acosta left between the pages of the Bible. Acostasigned the note and also wrote downhis full name, his address, and his nickname, | “Spider.” Witness Five and Acosta often left notes to each other in the pages of the Bible. (16RT 2521-2522.) Normally Acosta did not sign his notes with so much information, and the fact that he did so meantthat the content of the note was “something serious.” After finding the note, Witness Five turnedit overto the detectives investigating Acosta’s death. (16RT 2522-2523.) 20 Witness Five told Detective Joya about the telephonecall and the visit, but said she visited appellant on July 17, 1997. (16RT 2544-2547.) 35 8. Additional Police Investigation and Forensic Evidence Witness Onetold Detective Joya that there was a shotgunstock inside Dunton’s apartment. On July 7, 1997, a shotgun stock was found inside a trash can in Dunton’s kitchen. (25RT 3655-3657.) Witness Six called Detective Joya on July 26, 1997. (25RT 3655.) On July 27, 1997, Witness Six gave Detective Joya permission to take the | cellular telephone found in Dunton’s apartment. Oneortwo dayslater, the cellular telephone was given to Detective Lancaster. (11RT 1761-1763.) Marshall Severson worked for the Los Angeles Police Departmentin the Scientific Investigation Division as an expert regarding gunshot residue analysis. (22RT 3182-3187.) Severson opined that no information could be gained by performing a gun residue tests on suspects or their clothing 24 hours after the firearm was discharged. (22RT 3188-3189.) José Vazquez and Anthony Ortiz were forensic print specialists for the Los Angeles Police Departmentassigned to the Scientific Investigation Division. Vazquez collected Dunton’s and Acosta’s latent fingerprints and several latent fingerprints from the crime scene. (16 RT 2621-2625; 17RT 2634, 2641.) Ortiz estimated that they collected 30 lifts of latent prints. (LORT 2822-2824, 2831-2832.) Rosaly Garcia was a forensic print specialist with the Los Angeles Police Department. (19RT 2849-2852.) Garcia found four identifiable prints on the sawed-off shotgun (Peo. Exh. 50): one the right side of the barrel, one theleft side of the barrel, and two ontheleft side of the frame nextto the trigger. (ORT 2858-2863, 2865-2866.) Forensic print specialist Efren Caparas determined that three out of these four prints (Peo. Exhs. 53B, 53C, and 53D) matched appellant’s prints (Peo. Exhs. 53A through 53D). (19RT 2867-2872.) 36 Daniel Rubin wasa criminalist and firearms analyst for the Los Angeles Police Department’s Scientific Investigation Division. His responsibilities included collecting, preserving, analyzing, and examining physical evidencerelated to all types of firearms, ammunition, and ammunition components. Using comparison microscopy, Rubin could determine whetherspentcartridge casings had been shot from a particular gun. The spent cartridge casings were comparedwith test fired cartridges generated in the laboratory. (18 RT 2738-2741.) Rubin tested the shotgun recovered by the police. The shotgun’s magazine could hold five shotgun shells. An additional shell could be loaded into the chamber. (18RT 2741-2743.) Attrial, Rubin identified the shotgun, the spent cartridge casings, and the test-fired casing. (18RT 2744- 2745.) Rubin compared the unique marksleft on the head ofthe fired shotgun shells caused by forcing the shell against the shotgun’s bolt when discharged. Rubin opined that the four shotgun shells he examined (items 1,3, 4, 12) eo. Exhs. 21B, 21C, 21D, and 21F) had beenfired from the shotgun recovered by the police. The shotgun that Rubin examined was a 12-gauge shotgun. The live round recovered by the police was meantfor a 12-gauge shotgun. (18RT 2745-2747, 2752-2758, 2763-2764, 2766-2768.) The shotgun shells had a “loaded designation” of one ounce of No.8 shot, which indicated the size of the pellets inside the shell. (18RT 2748.) Rubin also opinedthat the five-inch metal tube recovered by the police could have been part.of the barrel of a shotgun. (18 RT 2749, 2761.) After both parties had rested, they entered into the following stipulation: Manuel Hernandez is deemed to have been called as a witness, to have been sworn andto havetestified as follows: 37 Manuel Hernandezis 67 years of age. He wasinterviewed by investigators on July 1, 1997. On July 1, 1997, he lived in the first residence to the west of the Dunton residence. - Hernandez was homeduring the early morning hours of July 1, 1997. At about 3:15 a.m., he heard what soundedlike three gunshots. Hernandez went to the window closestto the Dunton residence and looked out. The Dunton residence was in darkness. Hernandez saw one man comeout the back doorofthe Dunton residence. The man had something dark pulled down over his head. The man was betweenfive feet six inchestall and five feet eight inchestall. The man ran down the walkway toward O’Farrell Street. Hernandez then heard a carstart nearby. Afterward someone cameinto the room andturnedonthelights in the Dunton residence. Hernandez heard someonesay, “Oh, my God.” Hernandez then saw the manleave the Duntonresidence by the back door. (29RT 4292-4293.) Theparties also stipulated that [appellant] was six feet two inchestall and [codefendant] Grajeda was betweenfive feet eight inchestall and five feet and ten inchestall. (29RT 4293.) I. Counti: Appellant Robs Xavier Salcedo 1. Salcedo’s Testimony” Monthsbefore any of the murders occurred, appellant robbed Salcedo. Salcedo knew appellant from “growing up.”2A couple of weeksprior to the robbery, appellant came by Salcedo’s apartment. Appellant said he was 21 galcedo died beforetrial, so the jury heard his preliminary hearing testimony. ?2 Salcedo explainedthat he did not wantto testify because he had been threatened withretaliation if he did so. The threats were delivered anonymouslyby telephone. Salcedo was jailed for a short amountoftime based onhis refusalto testify. (SRT 1406-1408.) 38 out ofjail and demanded money. Salcedo denied having any money. WhenSalcedo answeredhis door on February 25, 1997, appellant and another manentered and told Salcedo to sit down, while a third man stood in the doorway. Appellant sat Salcedo down on the couchandsat nextto him. (8RT 1381-1386.) Appellant pulled a gun from his waistband and pointed the gun at Salcedo’s stomach. A second manstoodin front of them about four feet away. Appellant told Salcedoto take off his jewelry. Salcedo complied, and appellant placed the jewelry on the coffee table. Appellant told | Salcedo they needed to have a private conversation, so Salcedo went upstairs and closed his bedroom door. Atthat time, Salcedo told Silvia that he was being robbed. (8RT 1387-1390.) Salcedo wentback to the living room. Appellant told him to “sit down”and “shut up.” Salcedo complied. Appellant pointed the gunat Salcedo’s stomach and asked Salcedo if he had any money. Salcedo asked appellant what he wanted. Appellant replied: “Whatever you got”and then said “go getit.”. Salcedo went to his bedroom. Appellant followed Salcedo to the hallway outside the bedroom. Salcedo wentinto the bedroom, gave Silvia a gun,andtold herto protect herself. Salcedo retrieved $5,000 from the bedroom,returned to the hallway, and handed appellant the money. (8RT 1391-1394.) It appeared to Salcedothat the other two men had guns. Salcedo pleaded with appellant to give back his jewelry. Appellant handed Salcedo his gun, but Salcedo handed the gun back to appellant andsaid, “I don’t want no problems.” Appellant eventually agreed to give back Salcedo’s jewelry. Afterward,all three men left. Salcedo locked the door, turned off the lights, and went to his bedroom. (8RT 1395-1400.) Salcedo told Silvia they needed to take their children and leave immediately. Before they could leave, the men returned and demandedto 39 be let inside. They threatenedto start shooting into the walls. Salcedo had a gun, but did not want a gun battle because his children were present. Silvia called 911 a second time from the bedroom. Salcedo looked outside his bedroom window andsawhis friend, Darren Smith, walking towards his apartment. Appellant and the two other men spoke with Smith. Afterward, appellant repeated his threat to shoot into Salcedo’s apartment. (8RT 1400-1404.) 2. Silvia Salcedo’s Testimony On February 25, 1997, at about 11:00 to 11:30 p.m., Silvia Salcedo (“Silvia”) was at home with her boyfriend, Xavier Salcedo (a.k.a. Alfonso Elizarraz), and their three children. Someone knocked at the back door, which was unusual, but Salcedo let two men inside. Silvia could hear words being exchanged,but could not make out what was being said. Salcedo entered Silvia’s bedroom, spoketo her, and thenleft her bedroom. 23 She believed appellant sawSilvia saw appellant standing in the hallway. her. Afterward, Silvia called 911 from her bedroom and spoke with an emergency operator. The two men werestill insideat this time. Salcedo returned to Silvia’s bedroom again andtold her the two menhadleft. (8RT 1335-1340, 1345, 1348-1349, 1352, 1355, 1363.) Subsequently, someone knocked on the front door and Silvia could hear male voices. Several times someoneyelled: “Open the fucking door, let me in.” Silvia called 911 the second time and spoke with an emergency operator.’ A recording of both 911 calls was played for the jury. (13RT 1341-1343.) 3 silvia met appellant around 1989. Appellant was “a friend” of Salcedo, but not a “close friend.” Silvia had seen appellant a few weeks before he robbed Salcedo. Aside from that, Silvia had seen appellant once about seven years before the robbery. (8RT 1344-1346, 1362.) 40 Salcedo kept a large amount of cash at home. The money came from his regular business andselling narcotics. (8RT 1343.) After the robbery, Silvia discovered that appellant took $5,000 of $10,000 Salcedo kept in a box. After the police and detectives arrived, Silvia identified appellantas one of the robbers. (8RT 1355-1356.) J. .. The Police Arrive at Saleedo’s Home _ The police arrived, and Salcedoheard people running to the back of the apartment and a dog barking. Salcedo placed his gun on top of the television. The police entered the apartment and detained “everyone.” Salcedo explained that he had been robbed. (8RT 1405-1406.) K. Evidence Regarding Appellant’s Refusal to Cometo Court Los Angeles County Sherriff’s Deputy John Ganarial workedat the Central Men’s Jail. Deputy Ganarial was responsible for module 3301, which housed K-10 inmates for discipline. Appellant was housedin module 3301. These modules were in single-man cells. Deputy Ganarial’s duties included getting inmates ready to go to court. Normally, inmates were fed breakfast before going to court. (12RT 1841-1843.) When it was time to go to court, inmates were taken outoftheir cells one at a time and placed in waist chains. Afterward, they were taken to a separate module to wait for transportation. The separate module was run by other deputies. (12RT 1843-1844.) ~ On December14, 1999, at about 5:50 a.m., Deputy Ganarial informed appellant that he had about 30 minutes to get ready for court. Deputy Ganarial did not hear appellant respond. Deputy Ganarial returned five to ten minutes later and found that appellant was sleeping. Deputy Ganarial tried to wake appellant up, but was unsuccessful. Deputy Ganarial proceeded to feed other inmates, and returned to appellant’s cell about 10 to 15 minutes later. (12RT 1844-1847.) 4] Deputy Ganarial woke appellant up by yelling into his cell that he neededto be ready for court. Appellant responded by saying: “Fuck court.” Deputy Ganarial reminded appellant that he neededto be ready at 6:30 a.m. on the days he wasscheduled to go to court. Deputy Ganarial returned to appellant’s cell a few minutes later, appellant again said “fuck court.” (12RT 1847-1848.) At around 8:30 a.m., appellant refused to leave his cell to go court. Appellant refused to leave his cell until about 10:00 a.m. Deputy Ganarial received information that an extraction order had beenissued regarding appellant’s failure to go to court. Deputy Ganarial informed appellant of the extraction order. About 15 to 20 minutes later, appellant informed Deputy Ganarial that he was going to go to court. (12RT 1848-1850.) The parties stipulated that on December 14, 1999, the parties wereinstructed trial would begin at 10:30 a.m. (12RT 1850-1851.) THE DEFENSE Appellant recalled Detective Joya. (22RT 3238.) There was a “murder book” containingall the information obtained during the investigation of Acosta’s and Dunton’s deaths. Detectives Joya and Masterson prepared the murder book. The murder book contained a “chronological log,” which was a running log of any significant information. The entries included dates and times. Detectives Joya wrote his last nameor initialed his entries where he personally received information. (22RT 3239-3240.) On July 23, 1997, Detectives Joya and Masterson interviewed Witness Six at her residence. About three days later, Witness Six contacted Detective Joya by telephone. Witness Six said that she had talked with codefendant Grajeda, whotold her: “I was supposedto go overtherethat night for a meeting.” Codefendant Grajeda was referring to Dunton’s apartment. (24RT 3596-3597; 25RT 3655.) 42 Detective Joya interviewed Witness One on July 2, July 15, and August 20, 1997. Witness One wasalso interviewed on July 24, 1997, but Detective Joya was not present during that interview. (24RT3597.) On July 2, Witness One denied being present when Acosta and Dunton were killed. Witness One further claimed that he walked through the front door, even though Acosta’s body was blocking the door. (25RT 3657-3658.) Witness Onesaid that the day before the murders, a man named Boxer came to Dunton’s apartment and took some money. Atthat time, Acosta was “trying to sneak out.” After Boxer left Dunton’s apartment, appellant called a friend to get a gun. (24RT 3605-3606.) Witness One claimedthat he and appellant sawedoff the barrel and wooden stock of a shotgun in Dunton’s apartment." (24RT 3619; 25RT 3655.) That day, Witness Onestated: “But I’ve been awake solong andstarted hallucinating and hearing things.” (25RT 3689-3691.) On July 15, 1997, Witness One again claimed he wasnot present during the shootings.” Healso claimed he entered through his bedroom window, even though the window wasblocked by a dresser, a television, and other items stacked inside the window. (25RT 3659-3660.) Witness Onetold Detective Joya that he went to the junk yard with appellant, and returned to Dunton’s apartmentat about 9:30 p.m.”6 (24RT 3607-3608, 3619-3621.) At that time, Witness One, appellant, Acosta and Dunton were present. Dunton wason the couch facing the door and Acosta wason the *4 The barrel was found on July 1, and the wood stock was found in a kitchen trash can on July 7, 1997. (25RT 3655-3656.) °° Witness Onesaid that “appellant got mad real easy and he was very upsetoverthe theft of his money and pistol by Boxer” and “when [appellant] smokeshe gets paranoid and scary.” Witness One claimed that he was “real scared” of appellant. (24RT 3610-3612.) *6 Witness Onealso said he “wasn’t too good”at estimating times. (24RT 3608.) 43 large sofa. (24RT 3608-3609.) Appellant told Dunton to give Witness One some moneyto buy food. Witness One used the money to buy rock cocaine, and then returned to Dunton’s apartment about 45 minuteslater. Witness Oneclaimedthat he tried to enter the apartment by crawling through a windowin the front bedroom. (24RT 3609-3610.) On August 20, 1997, Witness One wasinterviewed again because the two prior versions of what happened were “impossible.” (25RT 3660- 3661.) Forthefirst time, Witness One talked aboutthe white car and a dark car. Healso said that codefendant Grajeda was present when Acosta and Dunton were killed. (25RT 3661-3662.) Witness One further claimed that, after retuning from the junkyard,appellant said that somebody was coming over to “fuck with” Acosta and Dunton. (25RT 3664-3665, 3674.) Witness Onebelieved that appellant’s commentpertained to the Mexican Mafia. (25RT 3696-3698.) Afterward, Witness One and appellant entered Dunton’s apartment, where they joined Dunton, Acosta, and codefendant Grajeda. Acosta gave Witness One somedrugs. Codefendant Grajeda had the shotgun knownas Shorty, and appellant had a pump-action shotgun. (25RT 3668-3669.) Witness One heard appellant say “don’t point that at me.” Witness One speculated that appellant was speaking to Acosta. Duntonsaid, “I’ll go out like a man.” (24RT 3600-3602; 25RT 3670.) After hearing these statements, Witness One heard gunshots, and someone bumping into a washing machineashe ran out the back door. (25RT 3670- 3671.) On August 21, 1997, at 10:20 a.m., Caparas informed Detective Joya that four latent prints had been lifted from the shotgun seized after appellant’s arrest. Detective Joya made a notation, “negative on comparison with [appellant], which meantthat the prints had not been compared with any suspects.” (22RT 3241-3244, 32247.) Latent print expert Wendy Cleveland requested another palm print from appellant. 44 (22RT 3249.) On August 27, 1997, Caparas called Detective Joya and informed him that the prints lifted from the shotgun had been compared with appellant’s prints. On September 3, 1997, Cleveland told Detective Joya that appellant’s prints were on the shotgun. Detective Joya also received reports from Cleveland and Caparas. (22RT 3244-3248.) Appellant recalled forensic print specialist Vazquez. (23RT 3345.) Vazquez and Ortiz eachlifted latent prints from Dunton’s apartment. Vazquezlifted a fingerprint from outside the kitchen front door about 48 inches from the bottom of the door. Another print waslifted from the doorjamb about 59 inches from the ground. (23RT 3345-3348.) A print waslifted from a decorative wood on the bathroom wall about 60 inches from the ground, and inside the bathroom door about 56 inches from the floor. (23RT 3349.) A print was lifted from a hallway door about 50 inches from the floor. A print was lifted from a doornext to the bathroom about 50 inches from the floor, and the side of a kitchen doorjamb leaving the living room. (23RT 3350.) Twoprints were lifted from inside the kitchen door leading outside. A print waslifted from the back of a metal chair. (23RT 3351-3352.) A print was lifted from the toilet lid which was smeared. A print waslifted from an open can of Pepsi. (23RT 3353-3355.) Imelda Solorzano, Melanie Gandara’s friend, knew codefendant Grajeda. Codefendant Grajeda and Gandara had custody of twochildren, Arthur and Andrew. (24RT 3569-3570, 3572-3573, 3584-3585, 3592- 3595.) On June 30, 1997, Solorzano helped codefendant Grajeda and Gandara prepare for an annual multi-day picnic until about 3:30 a.m., on July 1, 1997. (24RT 3571-3576.) Solorzano did not see codefendant Grajeda leave the apartment. (24RT 3577, 3590.) Appellant recalled Detective La Barbera. (25RT 3698.) According to Detective La Barbera, the approximate time of Patel’s death was from 9:00 p.m. on May25to about 4:00 a.m. on May 26, 1997. Detective La Barbera 45 believed the time of death was probably between 1:00 and 2:00 a.m. on May 26, 1997. (25RT 3699.) Detective La Barbera interviewed Witness Three several times. She told him that appellant brought Patel’s jewelry to her homeon May 26, 1997. (25RT 3701.) There were variations in the information Witness Three provided during these interviews. Witness Threeinitially said that appellant passed Patel’s jewelry through a bedroom window. Detective La Barberadid not believe that a person could see the drivewayor front of the apartment from the bedroom window. Witness Three’s first interview occurred on July 2, 1997, after she was detained for a narcotics violation. Atthat time, her husband was arrested and charged with possessionof cocaine for sale. (25RT 3702-3705.) In a subsequentinterview, Witness Three said that appellant came into the apartment with the jewelry. She also said that appellant cameto their bedroom window,orto the front door, depending on the timeof day. (25RT 3706.) During the first interview, Witness Three said that appellant cameto her home “alot.” (25RT 3708.) Detective Winter was recalled by the defense. (25RT 3710.) Detective Winter interviewed Witness One on July 24, 1997. Witness One mentioned the name Boxer, probably concerning the Acosta and Dunton murders, although Detective Winter was trying to focus on the Escareno homicide. Witness Onesaid that Boxer had a 12-gauge shotgun. (25RT 3710-3713.) Witness One said that Dunton gave Escareno’s costume jewelry to women who cameto his apartment. (25RT 3713-3715, 3719.) According to Witness One, appellant had two shotguns,a 12-gauge and a pumpaction,as well as the “.25 auto” that Boxer took from appellant. (25RT 3717-3720.) In another interview on August 20, Witness One revealed that he was with appellant whenhekilled Escareno, butdid not participate in the killing. (25RT 3716-3717.) 46 PROSECUTION’S REBUTTAL According to Detective Flamenco, on July 24, 1997, Witness Onesaid that Boxer took appellant’s .25 caliber handgun. (26RT 3755-3756, 3763.) Detective Flamenco was aware that Witness One hadtold Detective Winter that Boxer took appellant’s 12-gauge shotgun. (26RT 3758, 3763.) There was information in Detective Flamenco’s notes that was not included on Detective Winter’s report, and vice versa. (26RT 3762.) Detective Flamenco was aware that two newspaperarticles were published after Escareno was killed. Thearticles were published on June 10, and June 18, 1997. On July 2, 1997, appellant wasarrested and interviewed. (26RT 3766-3767.) Detective Masterson interviewed Witness Two. Witness Twostated that he took codefendant Grajeda to Dunton’s apartment, where codefendant Grajeda went inside to speak to some people. Witness Two stayed outside until codefendant Grajeda returned. They drove away together. (26RT 3772.) Witness Twoalso stated that he saw codefendant Grajeda at the Rose Room the Friday following the double homicide. Codefendant Grajeda told Witness Two: “I killed him.” (26RT 3770- 3772.) Detective Masterson interviewed Witness Onethree times, and these formal interviews were recorded and transcribed. Healso had about 24 contacts with Witness One onthe street. Sometimes they happenedto see each other, and other times Detective Masterson went looking for him. These encounters were not recorded or memorialized because they were informal, but each encounter was entered into the chronological record. (26RT 3773-3775, 3777-3782.) During one encounter, Witness Onesaid he had been threatened, so they discussed relocating him for his safety. (26RT 3783-3784, 3787.) 47 Detective Masterson opinedthat in a case involving the Mexican Mafia, a prosecution witness was in the greatest danger just before the trial started. Prior to trial, since December 3, 1999, Witness One was protected by a platoon of Metro Division police officers, who had extensive training. Detective Masterson believed these extra measures were needed to protect Witness One. (26RT 3789-3792.) The parties stipulated that opening argument began on December13, 1999. (26RT 3794.) THE PENALTY PHASE A. The Prosecution On April 4, 1991, Jorge Lucho was working at a gasstation in Carson. Shortly after midnight, Lucho was walking home on Pacific Coast Highway. Appellant blocked Lucho from walking, threatened him with a pointed screwdriver, and demandedhis wallet. Appellant pressed the screwdriver against Lucho’s stomach and neck. Lucho gave appellant his wallet, which contained Lucho’s personal papers and one dollar. Appellant threatenedto kill Lucho if he did not have more money. Lucho escaped by running away. Police officers arrived at Lucho’s home, and Luchotold them what happened. Later the same morning, Lucho was taken to a location in a patrol car, where he identified appellant as his robber. (30RT 4399-4403.) Officer Celia Komathy interviewed Lucho aboutthe robbery. 0RT 4405-4406.) Officer Komathy asked for a K-9 unit, an airship, and extra patrol officers to set up a perimeter. Appellant was apprehended 10 to 20 minutes later. Officer Komathy saw appellant behind a car. Another officer ordered appellant to stop, but appellant ran away and jumped over a fence. Appellant was found hiding in a shed underneath a mattress. A sharp metal weapon was foundnextto appellant. (30RT 4407-4409.) 48 Forensic print specialist Peter Valverde verified that appellant’s fingerprints were the same as those on an eight-page document from the California Department of Corrections bearing the number E99658. (30RT 4412-4414.) When Detective Winter interviewed appellant in the instant case, he said that he was born on March6, 1970. (30RT 4415-4416.) Nathan Reynolds wasthe custodian of records for the California Department of Corrections. Reynolds identified a “969(b)” packet showing appellant had been convicted of second degree robbery, possession of cocaine, possession of a deadly weapon bya prisoner, and assault with a deadly weapon with great bodily injury. Appellant committed robbery and cocaine possession, in two separate cases, before being sent to prison. Appellant wasfirst sentenced on May 24, 1991. On June 12, 1991, appellant wasreceived by the California Department of Correctionsat Chino State Prison. On February 5, 1992, appellant was received at Pelican BayState Prison. On February 2, 1996, he was received at Centinela State Prison. On November 27, 1996, appellant wasreceived at Calipatria State Prison. Appellant was paroled to Los Angeles County on January 10, 1997. G0RT 4423-4428.) In June 1998, Los Angeles County Sheriff’s Deputy Chad Millan worked in the Men’s Central Jail on his days off from his regular duties. Deputy Millan was a “prowler,” meaning that he handled inmates on the floor. On June 1, 1998, Deputy Millan and other officers searched appellant’s cell. (30RT 4435-4436, 4438.) At least two jail-made weapons were foundin his cell. According to Deputy Millan, inmates commonly secreted contrabandin their rectums, and appellant was suspected of doing so. Appellant was escortedto the hall, where he was orderedto strip down to his underwear, squat down, and cough. (30RT 4438-4440.) _ Appellant pulled his underwearto his knees, but otherwise refused to comply. Appellant started looking around. Theofficers told appellant to 49 take out whatever was in his buttocks and dropit on the floor. Appellant continued to look around. Eventually, appellant took a long object from his buttocks and broughtit around to his front waist area. Appellant began peeling away a layer of white paper. Appellant repeatedly refused to drop the object, so Deputy Millan sprayed him with “pepper spray.” It had no apparent effect on appellant. Appellant turned away, but anotherofficer sprayed appellant. (30RT 4440-4442.) Appellant ran downthe hallway, grabbed an inmate worker, and started stabbing him in the chest. Deputy Millan caught up to appellant and kicked him in the head. The inmate worker ran away. Appellant turned around and faced Deputy Millan. Appellant said, “Fuck you, punk,” charged at Deputy Millan, and then cut or stabbed him three times with the blade. Appellant stabbed him intheleft rib area twice and the knee once. Deputy Millan received five stitchesto his rib area and four to his knee. He was off duty for a “couple of days.” (30RT 4442-4444.) Deputy Millan identified the shank appellant used: a sharpened fork and a half inch piece of metal wrappedin toilet paper with a string on one end. Thetoilet paper and string acted as the handle ofthe shank. Appellant also had the finger of a latex glove, which was contraband because it was used to hide weapons or drugs in the rectum. (30RT 4444-4448.) Deputy Millan was Mexican- American. (30RT 4449.) Los Angeles County Sheriffs Deputy Timothy Vanderleek workedat the Men’s Central Jail. On November 20, 1999, he responded to a disturbancein one ofthe six-man modules. Deputy Vanderleek entered the module through a large sliding door. Inmates yelled derogatory comments. The module was very loud. Both televisions were on. Deputy Vanderleek unplugged onetelevision and then the other. As Deputy Vanderleek was 50 leaving the module, appellant threw urine on his chest, neck, and face.”’ Deputy Vanderleek explained this was a commonattack in someareas of the jail, and was knownas “gassing.” (30RT 4454-44456.) Los Angeles County Sheriff's Deputy Frank Montoya workedin the Men’s Central Jail as a module officer in the high power discipline module. On December14, 1999, appellant was housed in that module. After returning from court, appellant walked by Deputy Montoya’soffice. Deputy Montoya noticed appellant was carrying a large bag of candy and other store items, which werenotallowedin the high powerdiscipline module. Deputy Montoya confronted appellant and advised him that he could not have store items because he was being disciplined. Deputy Montoyaoffered to store the items until after appellant was through being disciplined. (30RT 4459-4462.) Appellant became very angry and shouted profanities at Deputy Montoya. Appellant said he would not give up his items and walked away. Deputy Montoyagrabbedthe bag of items, but appellantdid notlet go. Appellant turned aroundandtried to head butt Deputy Montoya, buthis head landed on Deputy Montoya’s shoulder. Deputy Montoya wrestled appellant to the ground. Appellant said: “You fucked up, Montoya. You fucked up. I’m goingto kill you. I’m goingto kill you and I’m goingto kill every deputy here.” (30RT 4462-4463.) On December 15, 1999, Deputy Montoya locked appellant in the shower area. When appellant was done showering, Deputy Montoya approachedappellant very carefully. Appellant’s hands were out of view, so Deputy Montoyatold appellant to turn around and puthis hands behind his back so he could be handcuffed. Deputy Montoya was concerned about "7 Attrial, appellant said: “You’re a fucking liar, punk. Stop lying, > (30RT 4456.) 51 appellant’s threats and believed appellant might have a weapon. (30RT 4463-4465.) Appellanttried to strike Deputy Montoya through the bars. Deputy Montoya moved his head and stepped back. Appellant had a plastic comb with the teeth removed and a razorbladefixed toit “like a slashing instrument.” The razor came from a plastic disposable razor inmates were given before showering. Appellant would have slashed Deputy Montoyain the face or neck if the deputy had not moved his head and backed away. Afterward, appellant broke the weapon and threw it down the showerdrain. Appellant said “fuck you, puto,” and threatened to kill Deputy Montoya. Appellant threatened he would get Deputy Montoya later, or attack a slower deputy. (30RT 4465-4466.) Deputy Montoya was Mexican-American. “Puto” was a Spanish derogatory term. (30RT 4467.) Los Angeles County Sheriff's Deputy Keith Holly worked as a prowlerat the Men’s CentralJail. On December 20, 1999, Deputy Holly was assisting with a discipline hearing for appellant. Deputy Holly and ° Sergeant Spiel went to appellant’s cell. After giving appellant a chance to respondto the charges against him, appellant was found guilty, and told he was sentencedto a 30-daylossofprivileges. (30RT 4472-4475.) Appellant said: “Fuck this discipline time. I should have fucking slashed Montoya’s throat when I had a chance.” Appellant also said: “Just wait until those fucking deputies take me to court and I’ll slash one of those fuckers.” (30RT 4476.) Deputy Holly knew that appellant had attacked Deputy Montoyaand took appellant’s threats seriously. (30RT 4476- 4477.) | B. The Defense Michael Picket workedfor the California Department of Corrections as a regional administrator who supervised the wardensof 12 prisons in Northern California, including Pelican Bay. Picket had worked for the 52 California Department of Corrections for 31 years. His jobs included | correctional officer, correctional sergeant, parole field agent, parole field agent supervisor, criminal investigator, associate warden, chief deputy warden, and the warden of several prisons. His duties as regional administrator included security conditions for inmates, guards, and other prison employees. (31RT 4500-4505.) Picket explained that each California prison wasclassified by a numberindicating the level of security: level one for minimum security; level two for minimum security with “a bit higher” security; level three for medium security; and level four for maximumsecurity. The State of California had 33 prisons. Of these, 10 were classified level four, including prisons at Pelican Bay, Susanville, Salinas Valley, Corcoran, Calipatria, and Tehachapi. Prisoners were classified with a number system based on the inmate’s background, type of offense, length of sentence, in-custody behavior in California Department of Correctionsinstitutions and other institutions. The classifications were one through four. (31RT 4506-4507.) There were two different types of level four prisons. The lower level four prison, for “close” inmates, was a single building which contained 100 cells and had a large open day room. These inmates took mealsin a large dining room with several hundred inmates. They could work,attend school, or attend vocational training. They could recreate in the yard and have face-to-face visitor contact. A higher level four prison, for maximum security, had smaller sections: two contained 20 cells, and a third section contained 24 cells. These sections were smaller and walled off from each other. Inmates in the smaller sections took meals in a small dining room adjacentto their sections. Their movementwasrestricted, they had fewer program privileges, and remainedin their cell 23 hours a day, and had one hour to recreate with other maximum security inmates. (31RT 4507-4513.) 53 Level three and level four prisons had armedpostsinside the prison’s perimeter. (31RT 4515.) Three level four prisons hadsecurity housing units within the prison, which were used to segregateinmates for violent crimes, possession of illegal weapons,or dealing narcotics. Depending on the conduct, inmates were placed in administrative segregation for various periods oftime. (31RT 4513-4514.) Gang memberscould be placed in administrative segregation for an indeterminate term. (31RT 4514-45 15.) Inmates were allowed family visits, but they were separated by a Plexiglas partition. (31RT 4527, 4533.) Control booth officers guardingthe security housing units were “armed with lethal weapons.” Inmates in the security housing units had daily contact with the staff who gave inmates meals, and medicalstaff for medical assessments regarding minor health problems. These inmates would be escorted to any other part of the prison. Inmates were chained or shackled while being escorted by guards withoutfirearms. (3 IRT 4515- A516, 4524-4526, 4532, 4534, 4540.) Meals were placed into the inmate’s cell through a small opening, so the main door did not have to be opened. Assaults still occurred under these conditions. (31RT 4517, 4525.) A substantial portion of violent crimes were committed in the security housing units. (3 1RT 4530.) There where approximately 160,000 inmatesin California’s 33 prisons. Thestatistics for 1989 indicated there were over 10,000 incidents of assaults on staff, assaults on inmates, homicides, suicides, and narcotic seizures. The majority of incidents were assaults against staff or inmates. A disproportionally higher amountofincidents occurred in level four close conditions. There were five homicides in 1989, and Picket guessed most o f ‘these homicides occurred at a level four prison. (31RT 4521-4523, 4529- 4530.) 54 Accordingto Picket, appellant would be placed in a level four prison, probably in the maximum security section. (31RT 4517-4518.) Picket opined that an inmate sentencedto life without the possibility of parole who attacked a sheriff's deputy sheriff multiple times while in jail would likely _ be put into a secure housing unit. (31RT 4519-4520, 4537-4538.) Based on his review of appellant’s convictions and his behavior in county jail, Picked opinedthat appellant would be sent to a secured housing unitat Corcoran or Pelican Bay. (31RT 4523-4524.) Picket opined that Mexican Mafia inmates housed in a secured housing unit at Pelican Bay still used a communication system to control the behavior of inmates under the Mexican Mafia’s control. Prison staff routinely intercepted communications, but communicationsstill got through to inmates in the general population. Murders and violent assaults had been ordered by Mexican Mafia members from the secured housing units. (31RT 4530-4532.) On a daily basis, staff members would be within an arm’s length of inmates housed in the secured housing units. Assaults occurred when shackled inmates were escorted to anotherpart of the prison. Inmates made weaponsusedforslashing or stabbing. (13RT 4532-4533.) Staff members had been assaulted with prison-made weapons while serving meals to inmates in the secured housing units. Attacks on staff were fairly common. (31RT 4534.) In 1999,there were 200 incidents of inmates assaulting staff at the medical facility at Vacaville, 195 at Pelican Bay, 168 at Corcoran, and 144 at California State Prison at Sacramento. There were 776 assaults on staff and inmates at Pelican Bay, 698 at Corcoran, 584 at the California State Prison at Sacramento, 552 at Salinas Valley State Prison, 476 at Tehachapi, and474 at the medical facility at Vacaville, which housed inmates with severe psychiatric problems. (31RT 4535.) 55 Appellant and his sister, Mercedes Sanabria, had seven other siblings. Appellant had three children: Ruben, who was 11 years old; Richard, who was 10 years old; and Coreena, who wasnine yearsold. Appellant’s children weresitting in the courtroom. Sanabria andthe children had visited appellant during the three years he hadbeeninjail. According to Sanabria, appellant’s children loved him “very much.” (31RT 4542-4544.) Appellant’s family loved him very much. Sanabria told the jury “[t]hat despite what[her] brother has done, weare real sorry, but weall love him, and wejust don’t want to see him to be executed.” (3 IRT 4545.) ARGUMENT I. APPELLANT’S CONVICTION FOR THE FIRST DEGREE MURDE R OF RAUL LUNA IS SUPPORTED BY SUBSTANTIAL DIRECT, CIRCUMSTANTIAL, AND FORENSIC EVIDENCE Appellant’s first claim on appealis that the evidence wasinsufficient to support his conviction for murdering Raul Lunain thefirst degree. (AOB 42-73.) Appellant’s first claim should be denied. Appellant’s conviction for first degree murder was supported by substantial evidence that appellant was a principal to Luna’s murder. The jury’s “not true” finding that appellant personally used a firearm to kill Luna makes no difference because the jury could convict appellant, either as the shooter o r the aider and abettor, and the jurors did not have to be unanimousas to an y specific fact supporting his conviction. For the same reasons, it was prope r for the trial court to deny dismissal of count 8, for the jury to sentence appellant to death for Luna’s murder, and for the jury to consider Luna’s murder in sentencing appellant to death for murdering Patel. A. Standard of Review “To determinethe sufficiency of the evidence to support a conviction, an appellate court reviewsthe entire record in the light most favorable to the prosecution to determine whetherit contains evidence that is reasonable, credible, and of solid value, 56 from whicha rationaltrier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Jurado (2006) 38 Cal.4th 72, 118, quoting People v. Kipp (2001) 26 Cal.4th 1100, 1128; Jackson v. Virginia (1979) 443 U.S. 307, 319 [99 S.Ct. 2781, 61 L.Ed.2d 560].) In doing so, [a] reviewing court may not substitute its judgment for that of the jury. It must view the record favorably to the judgment below to determine whether there is evidence to support the [verdict], not scour the record in search of evidence suggesting a contrary view. (People v. Ceja (1993) 4 Cal.4th 1134, 1143, citing People v. Perez (1992) 2 Cal.4th 1117, 1126; see also People v. Carpenter (1997) 15 Cal.4th 312, 387.) As this Court has observed, an appellate court may not “reweigh evidenceor reevaluate a witness’s credibility.” (People v. Guerra (2006) 37 Cal.4th 1067, 1129, citing People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Even | “(cjonflicts and even testimony whichis subject to justifiable suspicion do notjustify the reversal of a judgment,forit is the exclusive provinceofthetrial judge or jury to determinethe credibility of a witness and the truth or falsity of the facts upon which a determination depends.” (People v. Guerra, supra, 37 Cal.4th at p. 1141, quoting People v. Maury (2003) 30 Cal.4th 342, 403.) If a reviewing court determines that a rational trier of fact could find the essential elements of the crime proven beyonda reasonable doubt, the due process ~ clause of the United States Constitutionis satisfied [citation], as is the due processclauseofarticle I, section 15 of the California Constitution [citation]. 57 (People v. Memro (1995) 11 Cal.4th 786, 861.) The standard of review is the samein cases in whichthe prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.) Murderis the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) This Court has defined “deliberate” as “formed or arrived at or determined uponasa result of careful thought and weighing of considerations for and against the proposed course of action.’” (People v. Memro, supra, 11 Cal.4th at pp. 862-863.) B. Substantial Evidence Established That Appellant Was Guilty of Murdering Lunain the First Degree Appellant’s conviction for the premeditated murder of Luna is supported by ampledirect, circumstantial, and forensic evidence, and when the entire record is reviewed in the light most favorable to the prosecution, this evidence leadsineluctably to the conclusionthat appellant’s first claim on appeal should be denied. Rudy, Luna’s brother, provided direct evidence highly relevant to the circumstances of his brother’s murder, and established importantfacts supporting appellant’s conviction. Shortly before Luna was murdered, someonepulled a carin front of Luna’s home and stopped, a car door was opened and closed, and then the car was driven away. (13RT 2057-2059.) Minutes after the car was driven away,the killers returned to Luna’s home on foot. (13RT 2057-2059.) Onekiller told the other: “There’s somebodyin there[.]” Afterward, the killers found Luna, one exclaiming: “He’s here.” Immediately Luna exclaimed, “Oh, shit,” and then Luna wa s killed by a single shotgun blast to the head, (13RT 2060-2061) while the muzzle was 6 to 12 inches from his head (11RT 1801-1804, 1807-1808). An unspent shotgun cartridge was lying about 15 feet from Luna’s body. (12 RT 1701-1703.) From these facts showing planning and a preconceived mannerofkilling, a reasonable fact-finder could conclude 58 that the killers used a car to hunt down Luna with the premeditated and deliberate intent to kill him with a shotgun. Underthese circumstances, the question remains whether appellant wasone of the principals to Luna’s murder. The answeris yes. The prosecution presented direct, circumstantial, and forensic evidence that | overwhelmingly established appellant and a coperpetrator murdered Luna in the first degree. The jurors could easily infer that the killers used the abandoned Oldsmobile when they tracked and murdered Luna. The Oldsmobile had been abandoned around the time Lunawaskilled: the engine was warm and the tires wet. The car wasleft in a highly unusualstate: late at night with the windows downand the key in the ignition. (13RT 2082-2085.) Perhaps most importantly, a bag of unspent 12-gauge shotgun shells was found in plain sight inside the Oldsmobile. (11RT 1703-1706, 1710.) These factors, taken together, show that this particular Oldsmobile was used by Luna’s killers. The jury could also easily infer that appellant was one ofthe killers whoarrived in the Oldsmobile. Appellant’s fingerprints were on the roof, the exterior the front doors, the exterior of the driver’s window,and the rear view mirror of the Oldsmobile, which was left within walking distance, 150 to 200 yards, from Luna’s house. (11RT 1700-1703; 13RT 2091-2094, 2009-2107, 2099-2107.) The location of appellant’s fingerprints showed that appellant was the driver (driver’s side prints, rear view mirrorprint, and roofprint) or perhaps the passenger (passengerside print and roof print). In the face of this evidence, this Court “must accept logical inferences that the jury might have drawn from the evidence evenifthe court would have concluded otherwise[.]” (People v. Halvorsen (2007) 42 Cal.4th 379, 419, internal quotations and citations omitted.) 59 As mentioned above, an unspent 12-gauge shotgun cartridge was found about 15 feet from Luna’s body. (11RT 1701-1703.) This spent cartridge wasfired from the same shotgun used to kill Acosta, Dunton, and Escareno. (18RT 2745-2749.) Witness One saw this shotgun being delivered to appellant. Moreover, Witness One helped appellant saw off the barrel, and Rubin, the firearms expert, opined that the five-inch metal tube recovered from Dunton’s home could have been part of a shotgun barrel. (18RT 2749, 2761.) Accordingly, a reasonable fact-finder could concludethat appellant had the murder weaponatthe time ofthe killing andthat appellant, or his coperpetrator, killed Luna with that shotgun. Additional evidence supports the jury’s verdict. Appellant was identified fleeing from the area where Luna waskilled. Owens heard a gunshot. Within five to ten minutes of the gunshot, appellant ran up to Owens, who was a complete stranger, and asked him for a ride out ofthe area, When Owens denied owning a car, appellant continued running away. (14RT 2180-2184.) Owensidentification was based on observing appellant for about 20 seconds (14RT 21 85-2187; 1SRT 2327), so Owens’ identification was reliable. Orr provided additional evidence that someone was running through the area where Luna waskilled. (13RT 2068-2071, 2074-2075-2078.) The evidence proving appellant murdered Luna continued to accumulate even after he wasseen fleeing. After Luna waskilled, Luna’s telephone was usedto call Dunton’s apartment, where appellant had been staying for about a month. Before that, between the hours of 12:14 and 1:30 a.m., Luna’s telephone wasused to makefive telephonecalls. (14RT 2158-2160.) Thefirst two calls were to paging numbers,the third and fourth were to cab companies, and thefifth call was to the Holland Hotel. (14RT 2167-2170.) All of these telephone calls have a common theme: the caller wanted to get away from the area where Luna was murdered, either 60 by taxi or a ride, and the caller wanted to find a place to stay for that night. Whenthese desperate attempts failed, the caller attempted to reach somebody at Dunton’s homeat 5:00 am. (14RT 2171-2173.) This call to Dunton’s residenceis additional circumstantial evidence that appellant acquired, used, and kept Luna’s telephoneafter killing him. (11RT 1740; 14RT 2150-2152.) Appellant points to potential reasons the jury would have discredited Witness One™* (AOB 56 fn. 14), as well as Owens’ identification (AOB 53- 55), but this Court cannot “substitute its judgmentfor that of the jury” as to the credibility or reliability of Witness One, Owens, or any other witness at appellant’s trial (People v. Ceja, supra, 4 Cal.4th at 1143), even where a witness’s testimony “““‘is subject to justifiable suspicion do not justify the reversal of a judgment[.]’” (People v. Guerra, supra, 37 Cal.4th at p. 1141, quoting People v. Maury, supra, 30 Cal.4th at p. 403.) Appellant also complains that appellant’s possession of Luna’s telephone, when considered alone,is insufficient to show he took Luna’s telephone when he was murdered. (AOB 55-58, 62.) However, “*Tc]orroborating evidence may beslight, may be entirely circumstantial, and need notbe sufficient to establish every element of the charged offense.’” (People v. Williams (2008) 43 Cal.4th 584, 636, quoting People v. Hayes (1999) 21 Cal.4th 1211, 1271; see also People v. Garrison (1989) 47 Cal.3d 746, 773 [evidence the defendant was in possession of property stolen from the victim, less than 24 hours after the murders, corroborated the accomplice’s testimony].) Here, appellant’s possession ofLuna’s telephone further proves that appellant murdered Luna, and when viewedin *8 Witness One wasnot an accompliceto this crime, as he wasin the Escareno murder, so his testimony did not need corroboration, even though there was overwhelming evidence of appellant’s guilt based on all of the reasons discussed above. 61. light of other highly incriminating evidence such as his fingerprints, his possession of the murder weapon,and the identification testimony. Certainly, the jury had morethan appellant’s possession of the stolen telephone to connect him to the murder. (See People v. Narvaez (2002) 104 Cal.App.4th 1295, 1304.) Appellant claims there was insufficient evidencethat he acted as an aider and abettor in Luna’s murder. Appellant is wrong. It is well settled that “an aider andabettoris a person who,‘acting with (1) knowledge of the unlawful purposeofthe perpetrator; and (2) the intent or purpose of committing, encouraging,orfacilitating the commission ofthe offense, (3 ) by act or advice aids, promotes, encourages or instigates, the commission o f the crime.’ [Citation.]” (People v. Prettyman (1996) 14 Cal4th 248, 259, quoting People v. Beeman (1984)35 Cal.3d 547, 561.) It matters not that jurors may disagree overthe theory of the crime, for example, whetherthe situation involves felony murder or premeditated murder. Nor does it matter that they disagree on the theory ofparticipation, for example, whether there was direct participation or aiding and abetting or coconspiracy. (People v. Vargas (2001) 91 Cal.App.4th 506, 558.) Here, appellant and a coperpetrator drove the Oldsmobile to L una’s home, stopped for a while, and drove away. They returned onfoo t, searched for Luna, found him, and killed him. The perpetrator ha d appellant’s shotgun, and there were shotgun shells displayed open ly in the abandoned Oldsmobile. This is substantial evidence that appellant and a coperpetrator acted in concert with the intent to murder Luna. (See P eople vy. Loza (2012) 207 Cal.App.4th 332, 361 [“Although the evidenc e against Jeanne was circumstantial, it is sufficient to support a finding that J eanne aided and abetted John in committinga premeditated murder.”].) 62 Appellant points to other unlikely, but conceivable, reasons he might not have shared the shooter’s intent, assuming he wasnotthe shooter. (AOB 63-68.) Appellant’s points are irrelevant because the test for substantial evidence on appeal is whether a reasonable fact-finder could conclude beyond a reasonable doubt that a defendant aided and abetted murder, not whether there were other facts supporting the opposite conclusion. (People v. Gonzales (2011) 51 Cal.4th 894, 941 [a reviewing court presumesevery fact supporting the judgment whicha fact-finder could reasonably deduced from the evidence]; People v. Johnson (1980) 26 Cal.3d 557, 578 [“We may concludethatthere is no substantial evidence in support of conviction onlyif it can be said that on the evidence presented no reasonable factfinder could find the defendantto be guilty on the theory presented.”].) Appellantrelies, in part, on the jury’s not true finding to the allegation that appellant personally used his shotgun to murder Luna. (AOB 60-62.) However,the jury’s finding makes no difference in this case. While an aider and abettor “shares the guilt of the actual perpetrator,”the mental state necessary for convictionis the intent to encourage and bring about conductthat is criminal, not the specific intent that is an element of the target offense. (People v. Mendoza (1998) 18 Cal.4th 1114, 1123.) “More specifically, the jury need not decide unanimously whether defendant was guilty as the aider and abettoror as the direct perpetrator.” (Peoplev. Santamaria (1994) 8 Cal.4th 903, 918-919.) Thus, whether appellant was the shooter, or aided and abetted the shooter, he wasa principal to Luna’s murderand “it does not matter if the jurors disagree[d] about any facts proving the defendant’s guilt, even if based on differing theories.” (People y. Briscoe (2001) Cal.App.4th 568, 591, italics added, citing People v. Davis (1992) 8 Cal.App.4th 28, 40-41; see also People v. Edwards (1991) 63 54 Cal.3d 787, 824 [a jury need not agree on whichacts constituted lying in wait charged as a special circumstance].) The material facts in People v. Garrison, supra, 47 Cal.3d 746 are almost identical to the facts in the instant case. In Garrison, the jury found the defendant guilty of murder,but failed to reach a verdict as to personal use allegations. This Court sustained the murder conviction because there was evidencethat the defendant was the shooter, and evidence he wasnot, which evidenced “that the jury determined that both [coperpetrator] and defendantwerejointly involved in the criminal activity but could not decide beyond a reasonable doubt which one hadpulled the trigger.” (Ud.at p. 782.) . Five years later, this Court sustained a murderconviction where the jury ... may not have been able to decide beyond a reasonable doubt whether defendantor [the coperpetrator] actually wielded the knife, but was convinced beyond a reasonable doubtthat, either way, defendant was guilty of... murder. (Peoplev. Santamaria, supra, 8 Cal.4th at pp. 919-920.) This Court cited with approval a Court of Appealcase using the example of two robbers in masks. Oneacts as a lookout while the other uses a gun to rob the store clerk. Some evidence showsthat either defendant could be the shooter. As the defendant wasguilty of robbery under either theory, it would be “absurd” to makeall 12 jurors agree on the defendant’s role. (/d. at p. 920.) _ “Equally absurd would beto let the defendant go free because each individual juror had a reasonable doubtasto his exactrole.” (Id. at p. 920 fn. 8.) Likewise, in the instant case, the jury quite rationally found appellant was guilty of first degree murder, but rejected the personal use allegation becausethey could not determine beyond a reasonable doubt that he fired the shotgun. Accordingly, it would be absurd to overturn appellant’s 64 murder conviction based on the jury’s not true finding that appellant personally used a firearm. For the reasons discussed above, appellant’s conviction for murdering Lunain the first degree is supported by substantial evidence that therefore did not contravenestate law, the state constitution, or thefederal Constitution. For the same reasons, the trial court properly denied appellant’s motion to dismiss the charges involving Luna. Finally, the jury properly sentenced appellant to death for Luna’s murder (count 8), and properly considered Luna’s murder whenit sentenced appellant to death for Patel’s murder (count 3). A determination of an invalid conviction or special circumstance is not prejudicial perse, but subject to harmlesserror analysis. (People v. Sanders (1990) 51 Cal.3d 471, 521.) “The United States Supreme Court has upheld a death penalty judgment despite invalidation of one of several aggravating factors ... and this [C]ourt is in accord. (/d., citing Zant v. Stephens (1983) 462 U.S. 862 [103 S.Ct. 2733, 77 L.Ed.2d 235] and People v. Silva (1988) 45 Cal.3d 604, 632-636.) As discussed below,appellant has failed to establish any prejudicial error, so his sentences should be affirmed. However, assuming someprejudicial error, appellant must show that there was no basis to impose the death penalty to obtain a new penalty phase. Each of appellant’s murders were so brutal and senseless there is no reasonable possibility that the jury would have recommendeda sentence of life without the possibility of parole for the Luna and Patel murders. (People v. Roberts (1992) 2 Cal.4th 271, 327; see People v. Hillhouse (2002) 27 Cal.4th 469, 512 [reversal of the penalty not required where jury considered invalid conviction for kidnapping for robbery, felony-murder theory, and felony-murder special circumstance]; People v. Silva, supra, 45 Cal.3d at p. 632 [death penalty upheld wherethis Court found three of four special circumstances were invalid].) 65 Thus, even assumingthe jury should not have considered Luna’s murder, appellant has failed to show a reasonable possibility that the jury would have recommendeda sentence oflife without the possibility of parole. Thejury selected the death penalty for the Patel homicide based on the felony-murder rule as well as premeditation. Thus, even if Luna’s murder wasnot considered by the jury, appellant would havestill been eligible for the death penalty based on murder convictions as to Patel, Acosta, and Dunton. Accordingly, appellantis not entitled to a new penalty trial. (See Brown v. Sanders (2006) 546 U.S. 212, 224-225 [126 S.Ct. 884, 163 L.Ed.2d 723] [where there are oneorvalid special circumstances, which render a defendant“eligible for the death penalty,” the consideration of an invalid circumstanceis “no constitutional violation.”].) II. SUBSTANTIAL EVIDENCE SUPPORTS APPELLANT’S CONVICTIONS FOR KIDNAPPING, ROBBING, AND MURDERING PATEL , Appellantalso claimsthat the evidence was insufficient to affirm his convictions for kidnapping, robbing, and murdering Patel in the first degree (counts 3-5). (AOB 74-95.) This claim should be denied because the prosecution presented substantial evidence, which amounted to overwhelming evidence, that appellant committed these crimes. During closing argument, the prosecutor discussed the evidence showing that Patel had been kidnapped andstated: “I invite the defense to concedethat Patel was kidnapped sothat you don’t haveto spend any appreciable time on that issue. That would leave only the issue ofwho was the kidnapper for you to decide.” (26RT 3810.) Appellant accepted this invitation, when defense counseltold the jury, “I will concede there was a robbery, I will concede it was a murder, and I will concede it was a kidnapping.” Also, the defense essentially reiterated the prosecution’s position stating: “The issue, as I believe Mr. Manzella concedes himself, is 66 whetheror not [appellant] is the person that committed the [alleged crimes].” (27RT 3903.) Thus, the only disputed issue was identity. As discussed below,the prosecution presented substantial evidence from whicha rational fact-finder could conclude beyond a reasonable doubt that appellant was the person who kidnapped, robbed, and murderedPatel. The only reasonable interpretation of the evidence is that appellant kidnapped, robbed, and murdered Patel. Patel was murdered sometime after 9:00 p.m. on May 26, 2007, and sometime before 5:00 a.m. on May 27, 1997. When Patel’s body was discovered, his watch, bracelet, and white Toyota Camry were gone. Witness Three and her husband returned from a vacation in Mexico around May 20, 1997. After Patel’s murder, appellant sold Patel’s jewelry to Witness Three and her husband.” The sale occurred “about a week”after Witness Three and her husband returned from a trip to Mexico. (12RT 1912-1916, 1940.) This evidence is sufficient, by itself, to affirm appellant’s convictions for kidnapping, robbing, and murdering Patel. Appellant’s possession of Patel’s jewelry was corroborated by the evidence described above. On appellate review the ““[c]orroborating evidence maybeslight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense.’” (People v. Williams, supra, 43 Cal.4th at p. 636, quoting People v. Hayes, supra, 21 Cal.4th at 1271; see also People v. — Garrison, supra, 47 Cal.3d at p. 773 [evidence the defendant wasin possession of property stolen from the victim, less than 24 hoursafter the murders, corroborated the accomplice’s testimony].) ~ ? On June 5, 1997, Witness Three’s testimony was corroborated by her possession of the pawn slip for Patel’s watch and bracelet. (12RT 1919-1922, 13RT 1968-1972.) 67 Additional evidence supports affirming appellant’s convictions. Appellant told Witness Three, and her husband,that he had murdered the victim wearing Patel’s jewelry. Appellant also admitted that he had arrived in the victim’s car, and claimedthat the victim’s body wasin the trunk.*° These admissions provided strong evidence that appellant murderedPatel. Also, the car appellant wasdriving looked like Patel’s Camry, and Witness Three had neverseen appellant driving this car, even though he had visited her homefrequently. (12RT 1917-1919, 1924, 1926.) This evidence was compelling and a rational jury could conclude beyond a reasonable doubt that appellant murderedPatel. In fact, there is no other reasonable explanation. Appellant argues that Witness Three’s identification was not corroborated andthereforeis insufficient to prove appellant sold Patel’s jewelry to Witness Three and her husband. (AOB 89-90.) Even assuming Witness Three’s testimony was not corroborated, even thoughit was, thi s is a distinction without a difference. Witness Three was not appellant’s accomplice, so her testimony did not require corroboration, and wasin fact sufficient, by itself, to establish appellant sold the jewelry after killing Patel. “[I]t is the exclusive provinceofthetrial judgeor jury to determin e the credibility of a witness and thetruth or falsity of the facts upon which a determination depends.” (People v. Maury, supra, 30 Cal.4th. at p. 403.) Moreover, even when thereis a significant amountof countervailing evidence, the testimony of a single witness can be sufficient to uphold a conviction. (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) 30 KJann determinedthat 1 out of 60,000 peoplein the general population have blood consistent with Patel’s blood. (12RT 1908-1911. ) This ratio proves beyond a reasonable doubtthat is was Patel’s blood tha t was spilled in the trunk of Patel’s car. 68 Of course, the prosecution presented additional forensic, eyewitness, and circumstantial evidence. The bullet that killed Patel was fired from a 40 caliber semiautomatic pistol, and appellant was seen with this type of gun before Patel was murdered. Rodriguez gave this gun, which was found in appellant’s neighborhood,to Officer Shelley, who wasinvestigating Patel’s murder. (14RT 2130-2134, 2137-2143.) Witness One’s testimonyalso established that appellant possessed Patel’s car after he was murdered. Appellant asked Witness One to burn Patel’s car and specifically told him to removeany bloodstill inside the trunk. However, Witness Onefailed to completely remove Patel’s blood. On May28, 1997, Patel’s car, which was completely burned out, was discovered in San Pedro, about five blocks from Dunton’s apartment. (12RT 1877-1880; 19ORT 2931-2934, 2938-2939; 20RT 3039; 22RT 3229- 3230, 3257-3260.) This reliable eyewitness, forensic, and circumstantial evidence also showsthat appellant’s convictions should be affirmed. Witness Onealso established that appellant had Patel’s jewelry. Appellant brought Patel’s jewelry to Dunton’s apartment, wherehetried to sell the jewelry to one of Dunton’s connections. Whenthis “never materialized,” appellant left the jewelry at Dunton’s apartment. 3 (22RT 3230-3232, 3253, 3255-3258; 24RT 3529-3530.) Witness One believed that he had burned “a murder car.” Witness One’s belief was well-founded. Appellant talked about killing the owner, and asked him to check for blood in the trunk of the car.” Witness One 3! Witness One could not remember how manydays it was after Patel’s death that appellant brought the jewelry to Dunton’s house, or whether it was day time or night time. (22RT 2940) 32 On cross-examination, Witness Onesaid that appellant put “a hit” on him because he did not completely burn the car. Appellant asked (continued...) 69 “nut that together” with the fact that appellant brought Patel’s jewelry and cellular telephone to Dunton’s apartment. (L9RT2937-2940; 22RT 3252, 3255: 24RT 3549.) | Appellant asserts that Witness Three’s testimony,if true, establishes that appellant only had Patel’s jewelry “at most, from after 9:00 p.m. on May25, to sometime before 5:00 a.m. the following day.” (AOB 89-90.) This assertion is not supported by the record. It is important to understand that appellant’s statement to Witness Three,that Patel wasstill in the trunk, does not make his statement true. Appellant could have kidnapped and later killed Patel on the freeway, andstill claimed that Patel was in the trunk, even though he wasnot, in order to persuade Witness Three that the jewelry wasreal, to add bravadoto his claim, or for some other reason. Thus, appellant cannot showthat the sale took place within eight hours after Patel was killed. Appellant argues that Witness Three and Witness One gave inconsistent accounts regarding the date Patel’s jewelry wassold, and therefore their testimony is physically impossible or inherently unreliable. (AOB 89-90.) Even assumingthat appellantis correct, whichheis not, appellant could have kidnapped appellant, sold the jewelry the samenight, and then dumpedPatel’s body on the freeway. Thus, contrary to appellant’s assertion, appellant could have sold Patel’s jewelry the night Patel was killed. Even assuming Witness One recollection was inconsistent with Witness Three’s recollection, the jury couldrely on either witness to support the conclusion that appellant murderedPatel. Conflicting (...continued) Dunton to kill Witness One, but Dunton refusedto kill him. (23RT 3448- 4350; 24RT 3483-3484, 3491-3492, 3511-3514, 3542-3543, 3549.) 70 testimony does not rendereither witness’s testimony physically impossible or inherently unreliable. (People v. Barnwell, supra, 41 Cal.4th at p. 1052; People v. Maury, supra, 30 Cal.4th. at p. 403.) Underthese circumstances, there was overwhelming evidence, and therefore there was necessarily substantial evidence, supporting the jury’s conclusion that appellant was guilty of kidnapping, robbing, and murdering Patel. Accordingly, appellant’s second claim on appeal should be denied. III. THE PROSECUTION PRESENTED SUBSTANTIAL EVIDENCE THAT APPELLANT MURDERED ACOSTA AND DUNTONIN THE FIRST DEGREE BASED ON PREMEDITATION AND DELIBERATION Appellant further claims that the evidence wasinsufficient to support his convictions for the first degree murders of Acosta and Dunton. (AOB 96-106.) This claim should be denied. There was substantial evidence supporting appellant’s convictions for first degree murder based on premeditation and deliberation. A. Applicable Law Murderis “premeditated” whenit is “‘considered beforehand.’” (People v. Perez, supra, 2 CalAth at p. 1123.) Premeditation and deliberation can occur in a brief interval, and “[t]he test is not time, but reflection. ‘Thoughts may follow each other with great rapidity and cold, calculated judgment may bearrivedat quickly.’” (People v. Osband (1996) 13 Cal.4th 622, 697, quoting People v. Memro, supra, 11 Cal.4th at pp. 862-863; see also People v. Bloyd (1987) 43 Cal.3d 333, 348.) Thus, premeditation and deliberation can occurin “a very short period of time” (People v. Bloyd, supra, 43 Cal.3d at p. 348) and may be shown by circumstantial evidence (People v. Thomas (1992) 2 Cal.4th 489, 514; People v. Anderson (1968) 70 Cal.2d 15, 25). 71 Three types of evidenceare significant, but not exclusive, to the issue of premeditation and deliberation: planning, motive, and the manner of killing. (People v. Anderson, supra, 70 Cal.2d at pp. 26-27.) However, as this Court has stated: | Evidenceofall three elements is not essential . . . to sustain a conviction. A reviewing court will sustain a conviction where there exists evidence ofall three elements, wherethere is “extremely strong”evidenceofprior planningactivity, or where there exists evidence of a motiveto kill, coupled with evidence of either planning activity or a manner ofkilling which indicates a preconceived design to kill. (People v. Edwards, supra, 54 Cal.3d at pp. 813-814, citing People v. Hovey (1988) 44 Cal.3d 543, 556.) Exceptions to the general rule are considered because “[t]hese three categories are merely a frameworkfor appellate review; they need notbe present in some special combination or afforded special weight, nor are they exhaustive.” (People v. Booker (2001) 51 Cal.4th 141, 173, citing Peoplev. Brady (2010) 50 Cal.4th 547, 562.) | Motivecan beinferred based on“the defendant’s prior relationship and/or conduct with the victim[.]” (People v. Nazeri (2010) 187 Cal.App.4th 1104, 1111-1112, quoting Peoplev. Thomas, supra, 25 Cal. 2d at pp. 898, 900-901.) B. TheFinding That Appellant Acted with Premeditation and Deliberation was Supported by Ample Evidence of Motive, Planning, and the MannerofKilling Sergeant Valdemaropined that appellant had severaltattoos (13RT 2040, 2042-2043, 2045-2046) which showed membership in a “Suren o” street gang and loyalty to the Mexican Mafia (15RT 2366-2368, 2429- 2430, 2443). Agent Duarte opined that appellant’s codefendant was an associate of the Mexican Mafia. (20RT 2971-2974.) 72 According to Sergeant Valdemar, the Mexican Mafia demanded absolute loyalty above anyoneor anything, including law enforcement, and severely punished those who disobeyedthis rule. (1SRT 2381-2383.) In fact, prosecution witnesses risked death by testifying, and this risk was heightened because the gang could identify these witnesses by acquiring court documents. (15RT 2384-2385.) Secretly recorded Mexican Mafia meetings were mainly about murder, drug dealing, and collecting “taxes.” (15RT 2351-2355.) A gang member would be marked for death for robbing local drug dealers and/or failing to pay taxes. (15 RT 2378-2380.) Those marked for death were put on a “green light” list. (15 RT 2371.) Only intervention by a Mexican Mafia member, or making a large payment, might get a marked person off the green light list. (ISRT 2380-2381.) The record herein showsthat appellant’s motive for killing Dunton and Acosta was based on the Mexican Mafia’s rules. Appellant, codefendant Grajeda, and the victims used hard drugs, sold hard drugs, or both, and all were boundbythe rules of the Mexican Mafia. The seized “green light” lists showed the Mexican Mafia had marked Dunton and Acosta for death, evidencing an obvious motive by some underthe Mexican Marfia rules to kill Acosta and Dunton, dueto their failure to pay taxes or otherwise follow the rules. (See 15RT 2440-2441, 2444.) A day or so before the murders, a Mexican Mafia enforcer, Boxer, warned Dunton’s of his obligation to pay taxes and became angry when Dunton refused to pay. (27RT 3847-3848.) Moreover, appellant committed these murders with codefendant Grajeda, who wasan active memberofthe Mexican Mafia (20RT 3021, 3033-3036; 22RT 3307; 24RT 3486-3488), which further evidenced that appellant’s motive arose from the inner workingsofthe gang. In fact, around 1997, law enforcement authorities intercepted several green-light 73 lists, some recorded in voicemail, containing the names “Huero” and “Spider.” (1SRT 2440-2441, 2444.) Moreover,appellant committed both shootings, while codefendant Grajeda watched, showinghis actions were motivated the Mexican Mafia’s green lightlist, which involved by murdering Dunton and Acostafor their failure to pay taxes. Indeed, before Dunton and Acosta were killed, codefendant Grajeda told Dunton: “You know the rules.” Appellant added: “Yeah, forward and backward.” (20RT 3035.) Recognizing he hadviolatedthe rules, Dunton’s last words were: “(I]f I got to go, [Pmgoing to go like a man.” (20RT 3035.) There was also evidence Acosta submitted to the Mexican Mafia rules requiring his execution. (1IRT 1742-1743.) Before killing Acosta and Dunton, appellant said, probably to Acosta: “Don’t point that at me. I don’t like people pointing things at me.” (2ORT 3035.) Yet, even though Acosta was armed,he did not fire even one shotbefore appellant discharged his shotgun four times. Thus, even though motive is not required to show premeditation and deliberation, the record herein provide d compelling evidence of motive. (See People v. Orozco (1993) 20 Cal.App.4th 1554, 1567, citing People v. Tihomas, supra, 2 Cal.4th at p. 519: see also People v. Gonzales (2011) 52 Cal.4th 254, 295 [motive shown when a gang memberkills a rivalin retaliation for a prior killing]; People v. Martinez (2003) 113 Cal.App.4th 400, 412-413 [premeditation and deliberation found where motive was gangrelated].) There was also compelling evidence that appellant formed a preconceived plan to execute Acosta and Dunton. Planningis typically the most important of the Anderson factors. (Peoplev. Alcala (1984) 36 Cal.3d 604, 627.) Planningactivity involves the “facts about how and what a defendant did prior to the actual killing” and can “show that the defendant was engagedin activity directed toward, and explicable as intended to result in, the killing[.]” (People v. Anderson, supra, 70 Cal.2d at pp. 26- 74 27.) Here, planning was demonstrated when appellant and codefendant Grajeda committed the crimes together, and when both armed themselves before murdering Acosta and Dunton. (People v. Romero (2008) 44 Cal.4th 386, 401 [defendant’s bringing of weaponto crimelocation demonstrates planning activity]; People v. Elliot (2005) 37 Cal.4th 453, 471 (“That defendant armed himself prior to the attack ‘supports the inference that he planneda violent encounter.”’]; see People v. Lee (2011) 51 Cal.4th 620, 636 [bringing a loaded gun indicated defendant had “considered the possibility of a violent encounter”’].) Finally, the mannerof killing showsthat appellant killed Dunton and Acosta with premeditation and deliberation. Appellant shot Acosta and Dunton from close range in the head or neck. There wasnoindication of a struggle. As this Court has held, an “execution-style mannerof killing supports a finding of premeditation and deliberation[.]” (People v. Romero, supra, 44 Cal4th at p. 401; People v. Caro (1988) 46 Cal.3d 1035, 1050, 251; People v. Bloyd, supra, 43 Cal.3d at p. 348.) Even assuming Acosta and Dunton were not executed, premeditation and deliberation canstill be partly premised on the mannerof killing. Here, the shotgun blasts were at an extremely close range to the heador neck, showing appellant was focused,ruthless, and exacting when hekilled the victims. (People v. Halverson, supra, 42 Cal.4th at p. 422 [victims shotin the head or neck from within a few feet]; People v. Marks (2003) 31 | Cal.4th 197, 232, [noting the calm, cool, and focused mannerof the subject shootings]; People v. Thomas, supra, 2 Cal.4th at p. 518 [the manner of the killings strongly suggested a preconceived plan where the victims were killed with close range shotgun blasts to the head]; People v. Cruz (1980) 26Cal.3d 233, 245:[a shotgunblast to the face was substantial evidence of “a preconceived design and for a reason”].) Additionally, appellant rapidly shot the victims four times. (People v. Poindexter (2006) 144 Cal.App.4th 75 572, 588 [mannerofkilling demonstrated by three quick shotsatrelatively close range]; see People v. Bolin (1998) 18 Cal.4th 297, 332 [premeditation and deliberation does not require any extendedperiodof time,rather,it is the extent of the reflection].) | Under these circumstances, the prosecution presented compelling evidence of motive, planning, and the manner ofkilling, which collectively amounted to overwhelming evidence that appellant acted with premeditation and deliberation when he murdered Acosta and Dunton. Accordingly, appellant’s third claim on appeal should be denied. IV. APPELLANT’S CLAIM WAS FORFEITED; AND IN ANY CASE, THE TRIAL COURT NEVER DENIED APPELLANT OF HIS CONSTITUTIONAL RIGHT TO SELF-REPRESENTATION Appellant’s fourth claim on appealis that the trial court unconstitutionally foreclosed the possibility of self-representation bytelling appellant that his decision to proceed with counsel wasfinal. (AOB 107- 116.) This claim should be denied because it was forfeited and lacks merit. Appellant forfeited his claim becauseneither appellant nor his counsel objected to the court’s commentsthat appellant challenges forthe first time on appeal. Appellant’s claim lacks merit because the trial court scrupulously, carefully, and properly followed the law by allowing appellant to exercise both of the mutually exclusive rights to counsel and self-representation prior to the beginningoftrial. At no time was appellant denied a request for self-representation, and appellant never sought to represent himself after deciding to exercise his right to counsel. A. Relevant Proceedings On October 1, 1997, appellant was represented by Deputy Public Defender Nancy Gast, who asked for a two-week continuance of the arraignment and plea, so the Public Defender’s Office could assign an attorney to handle the case. Appellant waivedhis right to be arraigned and 76 enter a plea. (1CT 41-42.) On October 6, 1997, Gast appeared again, but appellantwas a “miss out.” Gast informed the court that that her office had a conflict. The court ordered appellant to appear for the appointmentof counsel. (1CT 44.) On October 7, 1997, appellant appeared with Deputy Alternate Public Defender Lee Rosen. Appellant waivedhis right to be . arraigned and entera plea. (1CT 46-47.) | On October 14, 1997, appellant appeared with Deputy Alternate Public Defender Joy L. Wilensky. Appellant pled not guilty and requested to have the preliminary hearing on November7, 1997. (ICT 48-50.) On November 7, 1997, appellant was a miss-out. Wilensky explained that appellant wasin the hospital. The court ordered appellant to appear on November 10, 1997. (1CT 52-54.) On November10, 1997, appellant appeared with Wilensky. Appellant waived time for the preliminary hearing. (1CT 55-58.) On November20, 1997, the case was continued. (1CT 59-62.) On January 8, 1998, the case was continued. (1CT 63-67.) On February 26, 1998, Deputy Alternate Public Defender Patrick Thomas appeared for Wilensky and explained Wilensky wasin trial. Thomasrequested a continuance until March 25, 1998. (1CT 68-71.) On March 25, and April 22, 1998, appellant appeared with Wilensky and refused to waive time, but the court continued the case based on good cause. (1CT 72-77, 82-87.) On June 22, 1998, the preliminary hearing was conducted, and appellant was held to answer. (1CT 168, 171-301; 2CT 300-314.) During the middle of the preliminary hearing, appellant made a Marsden*> motionto relieve Wilensky, which was denied. (1CT 266.) On August 7, 1998, appellant appeared with Wilensky. (2CT 428.) On August 20, 1998, Wilensky filed a motion to dismiss under section 995. *? People v. Marsden (1970) 2 Cal.3d 118. 77 (2CT 429-430.) On August 25, 1998, appellant appeared with Wilensky. The prosecutionannouncedit would seek death. (2CT 432-433; IRT 7.) On October 8, 1998, appellant moved for a continuance. (2CT 455-466.) On November3, 1998, appellant moved to dismiss the case pursuantto section 995. (2CT 480-506.) On November9, 1998, the prosecution filed an opposition. (2CT §08-512.) On November 11, 1998, the court denied the 995 motion. (2CT 522.) On November 23, 1998, appellant filed a motion for separatetrials. (2CT 540-560.) The prosecution filed an opposition. (2CT 561-570.) On December4, 1998, the motion to sever was denied. (2CT 580.) On February 18, 1999, appellant soughtproperstatus, and the court | set a hearing date for February 23, 1999. The court asked appellantto fill out the pro per form. (2CT 585.) On February 23, 1999, the court granted appellant’s motion for self-representation, relieved Wilensky as counsel, ordered standby counsel to appearat the next hearing, and ordered discovery be turned overto appellant. Appellant requested advisory counsel, and the court respondedthat this request would be granted,after appellant filled out a form and made a knowing andintelligent waiver of his right to counsel. (2CT 592-593; IRT 100-107.) Thetrial court told appellant: We do have a trial date set for April [1999], but obviously you'll need sometime to prepare[for] the case, yet you should be advised that you can’t go back andforth on this. If you wantto represent yourself, that’s fine. That’s going to cause a delay in the proceedings, and you can’t keep switching back and fourth being represented by counsel and representing yourself. (1RT 101.) The court asked appellant, “Do you understandthat?” Appellantreplied, “I understand that.” The court gave appellant the pro per form to fill out. Wilensky indicated that her office could not serve as advisory counsel. (1RT 101-102.) Appellant completed the paperwork 78 and acknowledgedthat he signed the form. Appellant indicated that he had no questions regarding the information in the form. (1RT 103.) Thecourt advised appellant that he would be facing a trial where the prosecutor was educatedin the law,and that appellant would have to abide by the rules of trial and would not get any special allowances,either in the presentation of evidence or making objections to the prosecution’s case. Appellant stated that he understood. (IRT 104.) The court warned appellant that he could not appeal based on his ownrepresentation, but could appeal if he was represented by counsel and counsel made a “big mistake” causing prejudice. Appellant stated he understood twice. The court warned appellant he would only get two hoursa day in the law library subject to restrictions at the prison. Appellant stated he understood. Appellant indicated that he understood the consequences of a conviction. The court found that appellant made a knowing and voluntary waiver of his right to an attorney and advised appellant that he would have advisory counsel for consultation. Appellant stated he understood. Wilensky was relieved as counsel. (1RT 105-107.) On February 26, 1999, Wilensky cameto court with bar panel attorney Daniel Nardoni, who indicated he had yet to determine if he could take the case. Wilensky provided a confidential discovery list to Nardoni and appellant, as well as a sealed copy for the court. Wilensky indicated that the only missing discovery was the murder book, which Wilensky believed would be turned over the following week. (2CT 594-597; 1RT 113-114.) The court addressed appellant about his pro per status, stating: “I do know you’ve run into somedifficulties, Mr. Gomez, about maintaining pro per status. I don’t know what’s going to happen outat thejail, but I did get a report of an attempted murderofone of the deputies at the jail, so they may not give you pro perstatus out there.” (IRT 115.) 79 On March 10, 1999, appellant relinquished his pro perstatus and Nardoni was appointed as appellant’s counsel. (2CT 598.) The court told appellant, “I told you before you can’t switch back and fourth.” Appellant replied,“I know that.” The court stated, “I’m going to hold youto this kind of change.” (1RT 188.) The court also told appellant: “All I’m saying is I’m not going to let you bounce back and forth. You have a right to represent yourself, I recognize that and gave that to you, and asthis momentyou dorepresent yourself.” (IRT 119.) The court asked appellant, “So at this point you understand thatif I’m goingback, this is the final change.” Appellant replied, “I understandthat, yeah.” Afterward, the court appointed Nardoni as appellant’s counsel. Neither appellant nor Nardoni objected to the court’s ruling or comments. (RT 119.) B. Appellant’s Claim Was Forfeited Because Neither Appellant Nor Nardoni Objected or Raised Any Concern Aboutthe Trial Court’s Comments In People v. Lancaster (2007) 41 Cal.4th 50, Lancaster claimedhis rights to “due process and self-representation underthe Fifth, Sixth, and Fourteenth Amendmentsto the federal Constitution were violated when the trial court ‘compelled’ him to relinquish his in propria persona status[.]” (Id. at p. 67.) This Court stated: “[b]ecause [Lancaster] never made this claim below, it is questionable whether he may properly raise it now.” (dd . citing People y. Jenkins (2000) 22 Cal.4th 900, 999-1000; see Peoplev. Stanley (2006) 39 Cal.4th 91, 929 [the defendant “must be found to have ultimately waived or abandoned his asserted right ofself-representation” because hedid not renew his request after the court deniedhisfirst motion for self-representation], citing People v. Dunkle (2005) 36 Cal.4th 861.,,. 909.) | | In Jenkins, Jenkins madeseveral constitutional claims, including th e claim that he was denied effective assistance of counsel under th e Sixth and 80 Fourteenth Amendmentsandarticle I, section 15, of the California Constitution. Jenkins’s claims were predicated on several alleged errors by the trial court: (1) permitting the jail authorities to confiscate his legal materials; (2) permitting the prosecutor and defense counsel to withhold discovery; (3) improperly overruling objections and restricting defendant’s questioning at the preliminary hearing; (4) denying him accessto the law library, telephone, witnesses, and special jail housing; (5) denying him the effective assistance of advisory counsel; and (6) disparaging his decision to represent himself. (People v. Jenkins, supra, 22 Cal.4th at pp. 999-1000.) This Court “question[ed] whether this issue [was] properly before [the Court] on direct appeal.” (People v. Jenkins, supra, 22 Cal.4th at p. 999.) This assessment was made even though Jenkins “repeatedly complained to the trial court regarding the conditions of his confinement” andat times represented that due to these conditions “he was — or soon would be — unable to assist in his defense.” Despite Jenkins’s complaints and representations, this Court focused on Jenkins’s failure to make “a motion for a mistrial or other motion in which he askedthetrial court to consider and rule on the contention that he asks this [C]ourt to consider[.]” (Ibid) In the instant case, appellantfailed to object or file a motion of any kind, and unlike Jenkins, appellant never personally complained about the trial court’s comments regarding self-representation andtherightto counsel. Appellant’s final trial attorney, Nardoni, appointed immediately after appellant relinquished self-representation, did not make an objection, file a motion, or even mention the trial court’s comments. (1RT 115-119.) Of course, appellant never challenged the court’s comments by requesting self-representation. Asa result, appellant offers mere speculation that the court’s comments stopped him from exercising his Sixth Amendments 81 rights. Thus,it is unquestionable that appellant’s constitutional claims were forfeited as he has failed to “offer any reason [for this Court] to deviate from the general rule that ‘{a]n appellate court will ordinarily not consider procedural defects or erroneousrulings[in connection with relief sought or defenses asserted], where an objection could have been, but was not presented to the lower court by some appropriate method.’” (People v. Jenkins, supra, 22 Cal. 4th at p. 1000, quoting In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002, quoting 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 394, p. 444; see People v. Rudd (1998) 63 Cal.App.4th 620, 628-631 [defendant whofailed to object to the court’s revocation ofhis self-representedstatus for failing to be ready for trialon — an agreed date could not complain on appeal].) Accordingly, appellant’s fourth claim should be denied becauseit was forfeited. C. The Trial Court Preserved Appellant’s Sixth - AmendmentRights Under the Sixth Amendment, a defendant possesses two mutually exclusive constitutional rights: the right to be represented by counselatal l critical stages of a criminal prosecution, and the right to self-representatio n. (People v. Marshall (1997) 15 Cal.4th 1, 20; Faretta v. California (1975) 422 U.S. 806, 807-834 [95 S.Ct. 2525, 45 L.Ed.2d 562].) Asin other criminal cases, the right to self-representation applies in capital cases. (People v. Clark (1990) 50 Cal.3d 583, 617.) “Erroneous denial of a Faretta motionis reversible per se.” (People v. Dent (2003) 30 Cal.4th 213, 217, citing McKaskle v. Wiggins (1984) 465 U.S.168, 177, fn. 8 [104 S.Ct. 944, 79 L.Ed.2d 122]; People v. Joseph (1983) 34 Cal.3d 936, 948 [an error in denying a timely Faretta motionis reversible perse.].) In the instant case, there was no Sixth Amendmenterror. Appellant wasinitially assigned counsel to represent him at all critical stagesoftrial. 82 This satisfied his Sixth Amendmentright to counsel. When appellant asked to represent himself, the trial court granted appellant’s request after being satisfied that appellant was knowingly and voluntarily relinquishinghis right to counsel. This satisfied the Sixth Amendment’s right to self- representation. Later on, the court granted appellant’s requestto relinquish self-representation and re-invokehis right to counsel, again preserving appellant’s Sixth Amendmentrights. After exercising both of his mutually exclusive Sixth Amendmentrights, appellant chose representation by counselrather than self-representation, and made no further requestforself- representation. Accordingly, appellant’s fourth claim should be denied because no Sixth Amendmentviolation occurred or could have occurred, as the trial court granted all of appellant’s Sixth Amendmentrequests. Appellant’s Sixth Amendmentclaim is necessarily based on speculation. As discussed above, the trial court granted all of appellant’s requests, and appellant never questioned or challenged the subject commentsbythe trial court about not going back andforth; so there is no basis for establishing error. Even if appellant had requestedself- representation a secondtime, this Court should not speculate about the circumstancesor propriety of such a request. (See Indiana v. Edwards (2008) 554 U.S. 164, 171 [128 S.Ct. 2379, 171 L.Ed.2d 345] [“Faretta itself and later cases have madeclearthat the right of self-representationis not absolute.”’].) Appellant relies on People v. Dent, supra, 30 Cal.4th 213. (AOB 109- 111.) Appellant’s reliance is misplaced. In Dent, a capital case, two lawyers (Miller and Maple) were appointed counsel for Dent in August 1988. Trial began in March 1991. However, the court found that, at that time, neither Miller nor Maple was preparedto try the case. (/d. at p. 215.) The court noted that counsel had requested many continuancesandfailed to appear on the record. The court expressed great concern about Dent having 83 a fair trial and proper representation. The court decided to release the jury, continue the case, and relieve Miller and Maple as counsel of record. The court stated: You must be represented by attorneysthat are seniortrial attorneys. And you have gotto have peoplehere to represent you. You cannot represent yourselfin this matter. So that’s whatI want to do and those are the reasons that I am doingit. Andthese attorneys are hereby relieved as ofthis time. (Cd.at p. 216, italics added.) Dentasked to address the court. The court responded: “Mr. Dent, because ofthe gravity ofthis case, let me get some attorneys in hereto talk to you and I will have the attorneys talk to you because I don’t want you to say anything to me that will incriminate you in any way.” Later that morning, Maple appeared and, after conferring with Dent, Maple represented that he was ready fortrial, although it was unclear when Miller would be ready. The court declined to reappoint Maple or Miller. Maple relayed Dent’s concern regarding the delay inherentin having two new lawyers. Maplereiterated that he was ready and that Dent wanted to proceed. Maple told the court that Dent would consentto a replacement for Miller while retaining Maple. Dent indicated this was acceptable. Finally, Maple told the court that alternatively, Dent wanted to proceedin pro per. When Mapletried to explain Dent’s reasoning, the court interrupted Maplestating, “I am not going to let him proceed pro per.” When Mapletried to address the court, the court stated that appellant would be prohibited from representing himself in “‘a death penalty murder trial.’” Dent acknowledged that he had not previously expressed a desire to represent himself. However, Dent explained, “But if I receive two new [attorneys], Iwouldlike to go proper.” Thetrial judge did not speak with Dent before relieving Maple and orderingthe files be turned overto the court. That afternoon, the court appointed new counsel, and Dent did not ask for self-representation again. (Jd.at pp. 216-217.) 84. The facts ofDent support respondent’s argumentrather than appellant’s. Unlike thetrial court in Dent, the court below carefully explained appellant’s right to self-representation and the right to counsel, allowed appellant self-representation after he had invokedthis right, and ultimately permitted appellant to choose between these mutually exclusive constitutional rights when appellant chose to relinquish his pro perstatus. This fact alone distinguishes these cases because Dent requested but was categorically denied self-representation for improper reasons,i.e. Dent was facing the death penalty and therefore had to be represented by “senior attorneys.” It is well-established that a defendant cannot be deniedself- representation because he faces the death penalty, or because he will undoubtedly do a poor job defending, as the foundation ofthe right to self- representation is rooted in individualliberty rather than foreseeable results. Indeed, the United States Supreme Court explained that the rightto self. representation “exists to affirm the accused’s individual dignity and autonomy.” (McKaskle v. Wiggins, supra, 465 U.S.at p. 17.) Another distinction between Dent and the instant case is that Dent was not responsible for any potential delay in his trial because the court dismissed his appointed attorneys. In the instant case,the trial court noted and accepted that appellant’s decision to represent himself would necessarily cause somedelay to transfer discovery and appoint qualified standby counsel. Also, appellant was allowedto relinquish self- representation, even after he had been warned the court would not permit - him to switch “back and fourth.” The court allowed appellant to switch back despite any delay that could result from appointing Nardonias counsel. (2CT 594-597; IRT 105-107, 113-114.) There are other material distinctions which show the court below committed no error under the Sixth Amendment. Dent wasnot allowed to speak to the court, but here the court spoke directly with appellant. Dent . 85 was not advised ofhis rights, but appellant was carefully advised of his Sixth Amendmentright to counsel, his right to self-representation, and the consequencesofself-representation. Dent was not asked if he understood his Sixth Amendment rights, but appellant expressly told the court that he understoodthoserights. Dent was never asked to weighthe respective consequencesofelecting counsel or self-representation, but appellant was expressly asked to weigh such considerations before makinghis final decision. Based on these reasons, Dent does not support appellant’s claim, but ratherillustrates that the court below carefully preserved both of appellant’s mutually exclusive Sixth Amendmentrights. Appellantalso relies on People v. Lancaster, supra, 41 Cal.4th 50. (AOB 112-114.) Appellant’s reliance is misplaced.** This Court fo und the trial court comments werenot a “‘preemptive denial’” of his Faretta right” and distinguished Lancaster’s case from People v. Dent, supra, 30 Cal.4th 213 and Bribiesca v. Galaza (9th Cir. 2000) 215 F.3d 1015, 10 19), finding there was no fundamental error because there was neither an “outright | denial ofthe right [to self representation]” nor any “improper restriction on Lancaster’s ability to present his own defense[.]” (People v. Lanc aster, supra, 41 Cal.4th at pp. 69-70.) While this Court commentedthat thetrial court should not have warned Lancaster that he needed to make “a permanent decision” at that point, this Court expressly found that the impropriety was slight a nd caused neither fundamental nor prejudicial error. Here, as in Lancaster, ap pellant “suffered neither” fundamental nor prejudicial error. (Peoplev. ‘Lan caster, supra, 41 Cal.4th at p. 70.) Indeed, appellant had been granted b oth the 4 In Lancaster, this Court noted that Lancaster’s “claims require a discussion of the underlying circumstances at some length.” Respo ndent relies on this Court’s discussion ofthe relevant facts. (Peoplev. Lanc aster, supra, 41 Cal.4th at pp. 69-70.) 86 right to counsel andthe right to self-representation. Moreover, appellant never challenged the court’s comments,or thereafter requested self- representation, so thetrial court never made a “final” ruling. Accordingly, the trial court’s comments about appellant’s Faretta rights did not foreclose the possibility of another change, because the court did not indicate another request for self-representation would have been summarily rejected without any consideration. For the reasons stated above, appellant’s fourth claim was forfeited and lacks merit understate law, the state Constitution, and the federal Constitution. It is also manifest that there was no prejudice to appellant. Accordingly, appellant’s fourth claim on appeal should be denied. V. THE TRIAL COURT PROPERLY DENIED APPELLANT’S MOTION TO SEVER THE CHARGES, AND APPELLANT HAS FAILED TO ESTABLISH A REASONABLE LIKELIHOOD THAT HE WASPREJUDICED BY JOINDER OF THE CHARGES Appellant’s fifth claim on appealis that the trial court erred whenit refused to order four separate trials for the Salcedo robbery, the Patel homicide, the Luna homicide, and the Dunton/Acosta homicides. Appellant soughta jointtrial for the Acosta/Dunton homicides and Escareno homicide. (AOB 117-176.) This claim should be denied because appellant failed to establish below that there was a substantial danger of prejudice requiring that the charges betried separately. In anycase,thereis no reasonablelikelihood that appellant was prejudiced by the joinder of charges. 87 A. Relevant Proceedings” Appellant and codefendant Grajeda were jointly accused of murdering Acosta and Dunton (counts 10and 11), while appellant alone was charged crimes with pertaining to Luna,Patel, Escareno, and Salcedo. (2CT 414- 419.) On September 25, 1998, codefendant Grajeda sought a separate trial. (2CT 437-445.) The prosecution opposed separate trials. (2CT 446-449.) On November3, 1998, appellantfiled a motion for severance of counts. (2CT 469-479.) Appellant sought a jointtrial for the Dunton/Acosta homicide and the Escareno homicide, and separatetrials for the Salcedo robbery, the Patel homicide, and the Luna homicide. (2CT 469-479.) The prosecution opposed severance of any count. (2CT 561- 596.) On November23, 1998, appellantfiled his own motion for separate trials. (2CT 531- 551.) The prosecution opposed the motion. (2CT 552-560.) Subsequently, the court held a hearing addressing both motions. The court found that Luna’s murder(count 8) was linked to the Dunton homicide (count 10) because appellant brought Luna’s stolen cell phone to Dunton’s apartment. (1RT 69-70.) Appellant concededthat the Acosta/Dunton homicides were linked to the Escareno homicide because Witness One was a “crucial witness” in both cases. (1IRT 70.) Appellant’s counsel addressed the motion for severance of counts, but stopped and asked thecourt to address the motion for separatetrials. (IRT 71-73.) The court first focused on whether to sever the counts charged against appellant. Whenthe court foundall the charges were violent crimes in the 35 Thetrial court addressed appellant’s motion to sever counts (Arg. V) and appellant’s motion for a separate trial (Arg. VI) during the same hearing. Someofthe facts considered are applicable to both motions. Accordingly, respondent has set forth the relevant proceedings for both issues. 88 same class, appellant counsel stated: “Yes, I have no problem with that.” The court framed the issue as whether appellant would be prejudiced by joined counts. The court found appellant would suffer no prejudice by joinder of the Salcedo robbery, and framed the issue as to whether the homicide charges should be joined. Before adjourning for the day, the court stated that both motions were “very viable,” and would be further considered by the court. (IRT 75.) At the second hearing, the court stated it had read and considered the both motions and the prosecutor’s response. (LRT 76-77.) The court reiterated that counts 8 and 10 were properly joined. (IRT 78-80.) The court raised codefendant Grajeda’s concern that he would “sink with the ship” if he were tried jointly with appellant. (1RT 83-84.) The prosecution pointed out that appellant and codefendant Grajeda both accused the other as the source ofprejudice: Appellant complained that codefendant Grajeda was a memberofthe Mexican Mafia, and codefendant Grajeda complained that appellant committed numerous crimes unrelated to the Acosta/Dunton homicides. The prosecutor asserted that a jury would find them both “morally bankrupt and that neither was much worse or muchbetter that the other[.]” (IRT 84.) _ Appellant’s counsel raised her concern that the prosecution intended to introduce codefendant Grajeda’s extrajudicial statements*®that *6 Codefendant Grajeda’s statement form was attached to appellant’s motion. In his first statement, codefendant Grajeda denied attending the meeting at Dunton’s apartment. He denied that he was in the Mexican Mafia, even thoughhis incarcerated uncles were members, and the name “Grajeda” is “synonymous with the Mexican Mafia.” Codefendant Grajeda knew appellant, but disliked him, because he was friends with codefendant Grajeda’s wife. He denied attending the meeting where Dunton and Acosta were murdered, despite the fact that he knew them both, and Acosta had repeatedly invited him to attend the meeting. (2CT 549-550.) (continued...) 89 inculpated appellant Grajeda. However,the prosecutor stated Grajeda’s statement would not be introducedat trial. The court held that there was “no problem”unlessthe prosecution tried to introduce the statement during trial. (IRT 87-90.) | | The court found that appellant and codefendant Grajeda should be tried together for the Acosta/Dunton homicides. (IRT 90.) The court addressed whether any counts should be severed. The court found: none of the homicide charges was significantly stronger that the others; a strong case was not being used to support a weak case; and the homicides should be tried together because they were “close together in time and circumstance.” (IRT 80-82, 90-91.) In addition, the crimes were tied “in large part” due to “the mannerin which the execution took place.” Further, the court found that: shotguns were used, except in the Patel homicide; Witness One would testify in the Escareno case as well the Acosta/Dunton cases; the items stolen during the robberies were similar; and cars facilitated the homicides in the Luna, Patel, and Escareno homicides. The court denied the severance motion, stating: “So I’m left with the only (...continued) . In codefendant Grajeda’s second version, he and an unnamed uncle went to Dunton’s apartment where he saw appellant, Acosta, and Dunton. Appellant and Dunton were arguing about Boxer stealing appellant’s money and gun. Dunton told codefendant Grajeda about the incident. Appellant told codefendant Grajeda that he had heardthat “the Grajedas” put him “onthelist,” and asked codefendant Grajedaifhe intended to kill him. Codefendant Grajeda denied having knowledge ofthelist, and denied he was goingto kill appellant. Acosta repeatedly asked codefendant Grajeda to attend a meeting at Dunton’s apartmentto discuss appellant’s claim that he collected taxes for the Mexican Mafia. Acosta did not indicate whether the meeting had been called by an “M” member. ~ According to codefendant Grajeda, he would not attend a meeting called by an “M” member. (2CT 542-543, 544-547.) 90 concern I really have, which is the numbers, and they are so well tied together that I think they should be tried together.” (1RT 91-92.) B. Relevant Law The:consolidation or joinder of charged offenses is the course of action preferred by the law becauseit ordinarily promotesefficiency. (People v. Soper (2009) 45 Cal.4th 759, 771-772; Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220; People v. Smith (2007) 40 Cal.4th 483, 510.) Consistent with this mandate, section 954 allows the charging of different . offenses connected together in their commission or of different offenses of the same class of crimes. (People v. Walker (1988) 47 Cal.3d 605, 622.) Joinder obviates the need to select an additional jury, avoids the waste of public funds, conserves judicial resources, and benefits the public due to the reduced delay in the disposition of criminal charges. (People v. Mason, supra, 52 Cal.3d at p. 935; People v. Bean (1988) 46 Cal.3d 919, 935-936, 939-940.) In the instant case,it is undisputable the section 954 statutory requirements for joinder were met, because appellant was charged with murdering Luna, Patel, Escareno, Acosta, and Dunton,in thefirst degree with special circumstances. The only non-homicide crime wasthe Salcedo robbery, but that crime involved: multiple assailants; forced entry into a home;the useof a firearm; the use of assaultive or forceful behavior; stealing money from a drug dealer; an attempted forceful reentry: and threats to shoot into the house while Salcedo’s wife and children were inside. This charge was properly joined because Section 954 permits joinderofall assaultive crimes against the person becausetheyare all considered “of the sameclass of crimes or offenses.” (See People v. Walker, supra, 47 Cal.3d at p. 622.) Since the joinder of the counts herein wasstatutorily authorized, the trial court’s ruling against severance in favor of consolidating the counts 91 must be affirmed unless appellant clearly established below that there was a “substantial danger ofprejudice requiring that the charges be separately tried.” (People v. Soper, supra, 45 Cal.4th at pp. 773-774; People v. Smith, supra, 40 Cal.4th at p. 510; People v. Marshall, supra, 15 Cal.4th at p. 27.) Pertinent factors on the issue of prejudice include whether: (1) evidence on the crimes jointly tried would not have been cross-admissible in separate trials; (2)-certain of the charges were unusually likely to inflame the jury against the defendant; (3) a “weak” case was joined with a “strong” case, so that the “spillover” effect of aggregate evidence on several charges might well have altered the outcome of someorall; and (4) one ofthe chargesis a capital offense, or joinder of them turns the matter into a capital case. (People v. Soper, supra, 45 Cal.4th at pp. 774-775; People v. Smith, supra, 40 Cal.4th at pp. 510-511; People v. Marshall, supra, 15 Cal.4th at pp. 27- 28.) Thetrial court’s ruling is reviewed for abuse ofdiscretion “in light of the showings then made andthefacts then known.’” (People v. Mars hall, supra, at p. 27, quoting People v. Balderas (1985) 41 Cal.3d 144, 171; see also Alcala v. Superior Court, supra, 43 Cal.4th at p. 1220.) This Court has clarified that, in the context of properly joined offenses, the defenda nt “must make a stronger showingofpotential prejudice than would be necessaryto exclude other-crimes evidence in a severedtrial.” (People v. Soper, supra, 45 Cal.4th at p. 774, internal quotation marks omitted.) C. The Trial Court Acted within Its Discretion Trial court properly denied appellant’s severance motion. There was cross-admissible evidence and, in any event, none of the othe r factors supported the requisite showing of substantial prejudice. All four mu rders were equallybrutal and based on reprehensible motives, so no partic ular murder charge was unusually likely to inflame the jury against appell ant. The charges did not combine a “weak” case with a “strong”case or a nother weak case, and there was no dangerof any “spillover” effect becaus e the 92 evidence wasstrong in each case. Finally, the joinder ofcharges did not turn the matter into a capital case because each murder wasalready charged as a capital offense. 1. Cross-Admissibility Whenthe evidence underlying the charges would be cross-admissible in hypothetical separate trials of other charges,the trial court is usually justified in refusing to sever the charges as any potential prejudice is _ dispelled. (People v. Lynch (2010) 50 Cal.4th 693, 736; People v. Soper, supra, 45 Cal.4th at pp. 774-775.) The cross-admissibility need not be complete or “two-way,”as it is sufficient the evidence as to count “A” would be admissible in thetrial of count “B” but not vice versa. (Peoplev. Alcala, supra, 43 Cal.4th at p. 1221.) There was cross-admissible evidence for all the homicide cases. Appellant made a spontaneous statement in which he mentioned about a man whohad his head shot off, and two other men who were shotin the head and hadtheir brains splattered all over the place. (13RT 2043-2045.) This statement was admissible as to all the homicides becauseit describes the Acosta/Dunton homicides as well as the Patel, Luna, or Escareno homicides. Witness One’s testimony wasrelevant to all the homicide cases. He was a direct witness to the Acosta/Dunton and Escareno homicides. He saw appellant arrive at Dunton’s apartment with Patel’s jewelry, and appellant asked him to burn Patel’s car. He also saw appellant arrive at Dunton’s with Luna’s cell phone. Hetestified that appellant brought a handgun to Dunton’s apartment, which could have been usedto kill Patel. (14RT 2130-2136; 20RT 3004.) There was cross-admissible evidence between certain counts. Witness Three saw appellant arrive in Patel’s car, and appellanttold her that he had the victim in the truck of the car. Appellant brought Patel’s jewelry to Dunton’s house, connecting the Dunton/Acosta homicides with Patel 93 homicide. The evidence regarding the shotguns, the spent shells, and the unspentshells, linked some ofthe homicides together. In the Escareno homicide, shotgun pellets in the car showed shots were fired from a 12- gauge shotgun using double aught buck. (ISRT 2392-23 95.) Witness One testified about the shotgun called “shorty” and the sawed-off shotgun. When appellant was arrested, he had a shotgun and shotgun shells. (2URT 3098-3103.) The ballistics evidence showedthat the same gun was used to kill Acosta and Dunton,and used a shotgun in every murder except Patel’s murder. Healsoshotall of the victimsin the head at very close range. Thesefacts strongly indicating that the same person committed each crime. (People v. Cunningham (2001) 25 Cal.4th 926, 985 [“Because complete cross-admissibility is not necessary to justify the joinder of counts [citation], in the present case the cross-admissible evidence concerning the gun would justify such joinder.”].) | In any event, cross-admissibility “is not the sine qua non ofjoint trials.” (People v. Geier (2007) 41 Cal.4th 555, 575; People v. Sandoval (1992) 4 Cal.4th 155, 173; see also § 954.1.) The absence of cross-. admissibility, by itself, does not suffice to demonstrate prejudice, since certain additional factors favor joinder andthetrial court’s discretion under section 954 to join the counts and deny severance is broader thanits discretion to admit evidence of uncharged crimes under Evidence Code section 1101. (People v. Soper, supra, 45 Cal.4th at pp. 772-774, 779-780; People v. Alcala, supra, 43 Cal.4th at p. 1221; People v. Geier, supra, 41 Cal.4th at p, 575.) Similarly, severance is not required “merely because properly joined charges might make it more difficult for a defendant to avoid conviction compared with his or her chances were the charges to be separately tried.” (People v. Soper, supra, 45 Cal.4th at p. 781.) 94 2. The Charges Were Not Unusually Likely to Inflame the Jury Against Appellant. All the murders were equally egregious, so appellant cannot establish that any of the five murders was“significantly more egregious” than any of the others. Accordingly, no particular murder was “unusually likely to inflame the jury” against appellant. (People v. Manriquez (2005) 37 Cal.4th 547, 574, internal quotations omitted.) Thus, even if this Court determines the evidence wasnotsufficiently cross-admissible, joinder was appropriate based on the remaining factors. (See People v. Ochoa, supra, 26 Cal.4th at pp. 423-425 [court did not address cross-admissibility because court did not find that either charge was unusually likely to inflamethe jury or that the evidence of either charge was weak].) | Appellant asserts that the Dunton, Acosta, and Escareno charges were particularly inflammatory. As to Dunton and Acosta, appellant asserts that the evidence regarding the Mexican Mafia made those murders “particularly inflammatory[.]” Appellant also claims that the Escareno murder wasparticularly inflammatory because of the manner his body was treated after his murder. (AOB 135-138.) These claims lack merit. None of the murders were “significantly more inflammatory”than the others. Patel was robbed and kidnapped before he was murdered. The circumstances of his murder were horrifying. Patel was cut with a knife, put in the trunk of his own car, and broughtto the freeway onramp where he was murdered. After appellant released Patel from the trunk, appellant stabbed him in the chest. Patel tried to run, even though the stab would wasfatal, so he was unable to get away. Appellant executed Patel by shooting him in the head at point bank range, and then left his body to rot. Appellant’s motive would send chills downthe spine of any law-abiding person: appellant murdered a random strangerfor jewelry of minimal value in order to buy narcotics. As this Court has 95 found, ““It cannot be doubted that the public generally is influenced with the seriousnessofthe narcotics problem . . . and has been taught to loathe those who have anything to do with illegal narcotics in any form or to any extent.’” (People v. Holt (1984) 37 Cal.3d 436, 450, quoting Peoplev. Cardenas (1982) 31 Cal.3d 897, 907.) Thus, the Mexican Mafia killing of two drug dealers (Acosta and Dunton) was no more inflammatory than the random killing of someonetotally innocentlike Patel for drug money. The circumstances of Luna’s murder were no less inflammatory than _ any ofthe other murders. Luna’s murderalso involved the “seriousness of the narcotics problem.” Luna wasa drug dealer. Appellant stalked Lunaat his residence, where he lived with two brothers, and one brother’s wife and son. After stopping near Luna’s residence, appellant and his coperpetr ator drove away, parked the car about 200 yards away, and then returned to the area outside the residence. (13RT 2057-2059.) Appellant and his coperpetrator found Luna, and appellant or his coperpetrator shot L una’s head with a shotgun while the muzzle was6 to 12 inches from Luna’s head. (11RT 1801-1804, 1807-1808.) Thus, appellant and his coperpetrator hunted down Luna, killed him in grotesque manner, and left his bo dy outside his residence wherehis relatives discovered the body. Like the circumstances of the Patel murder, the circumstances of Luna ’s murder werenot significantly more inflammatory than the others. Escareno’s murder was no more inflammatory than Patel’s murder or Luna’s murder. In fact, the jury could not reach a verdict for Escare no’s murder, showing that the jury was unaffected by the circumstances of Escareno’s murder. This result necessarily showsthat Escareno’s murd er did not influence the jury whenthe jury considered the other charges. Nor should a jury have beenso influenced. The circumstancesofthe Escareno murderare very similar to those underlying Patel’s murder. Appellant and Witness One decided the look for someone to rob. (19RT 96 2940-2941; 22RT 3265-3266.) Appellant had a shotgun. (19RT 2942; 22RT 3264; 23RT 3431-3432.) When the perpetrator saw Escareno, he mentioned “all them rings on [Escareno’s] fingers.” (19RT 2943.) The perpetrator followed Escareno until he parked near an apartment complex. The perpetrator and his partner parked directly behind Escareno’s car. The perpetrator taunted Escareno. (19RT 2944-2946; 22RT 3266-3268.) Afterward, the perpetrator shot Escareno in the head, causing his head to come apart and leave remnantsinside the car. (19RT 2949.) This shotgun injury was no more egregious than those in the other cases. In fact, perhaps less so, because the other victims where shot in the head or neck at point blank or contact range. Unlike Patel, Escareno was not cut with a knife, kidnapped, placed in the trunk ofhis car, and stabbed in the chest, before he was shotin the head at point blank range. Both murders were motivated by the desire to buy narcotics. Moreover, as in Patel’s case, the money and items taken hadlittle value, but were nonetheless used to buy narcotics. (19RT 2951.) Patel was murderedfor jewelry sold to a pawn shop for about $700. (12RT 1919-1922.) Escareno was murderedfor less than $100 and “costume jewelry,” which was thrown away. (19RT 2953; 20RT 3000; 22RT 3272-3273.) Finally, Escareno’s body wasleft more or less in the same condition as the other victims. Patel’s body wasleft on the edge of a freeway on- ramp. Luna’s wasleft bleeding to death in front of his home where helived with other relatives. Dunton’s and Acosta’s bodies wereleft sprawled out in their home. Escareno’s body wasleft in a public place where Witness One believed the body would be found. Thus, there is no appreciable difference in the mannerofthe killings or treatment of the bodies. Accordingly, contrary to appellant’s assertion, the circumstances of the Escareno murder were not more inflammatory that any of the other murders. 97 3. Joinder of the Charges Did Not Combine a “Weak” Case with a “Strong” Case as the Evidence Supporting All the Offenses Was Strong or Overwhelming The evidence supporting all the offenses wasstrong or overwhelming, and thus, this was not “a situation where a weak case was joined with a strong one in order to produce a spillover effect that unfairly strengthened or bootstrapped the weak case.” (People v. Gutierrez (2002) 28 Cal.4th 1083, 1121.) Asset forth in greater detail in the Statement of Facts, as well as ArgumentsI,II, andIII,all of the charges werestrong; noneofthe charges were weak. Appellant’s conviction for the premeditated murder of Luna was supported by ample direct, circumstantial, and forensic evidence. Rudy heard a car stop at Luna’s residence and then drive away. Minutes later, he also heard the perpetrators return to the house on foot. (13RT 2057-2059.) Luna waskilled by a single shotgunblast to the head at close range. (1I RT 1801-1804, 1807-1808; 13RT 2060-2061). Appellant’s fingerprints we re found on several areas of a car, abandoned about 200 yards from Luna’s house, with a warm engine, wettires, the windows down, and the keys left in the ignition. (13RT 2082-2085.) Moreover, Luna waskilled with a shotgun, an unspent shotgun cartridge was found near Luna’s body (11 RT 1701-1703), and a bag of unspent 12-gauge shotgun shells were left in the abandoned car (11RT 1703-1706, 1710). The unspent shell was a type of ammunition used for the 12-gauge shotgun usedto kill Acosta, Dunton, and Escareno. (18RT 2745-2749.) This shotgun had been delivered to appellant. (18 RT 2749, 2761.) Appellant was seen fleeing from the area where Luna was murdered. (14RT 2185-2187; 1SRT 2327.) Luna’s telephone wasused to call Dunton’s apartment, as well as other calls indicative of person fleeing an d 98 seeking aplace to hide. The call to Dunton’s residence showsthat appellant acquired, used, and kept Luna’s telephoneafter killing him. (1IRT 1740; 14RT 2105-2152, 2158-2160, 2167-2173.) Appellant’s possession of Luna’s telephone wasadditional strong evidencethat appellant murdered Luna. Asto the kidnapping, robbery, and murderofPatel, the only issue was identity because appellant’s counsel concededthat these crimes had occurred. (26RT 3810; 27RT 3903.) Witness One saw appellant with Patel’s jewelry at Dunton’s apartment. (22RT 3230-3232, 3253, 3255- 3258; 24RT 3529-3530.) Moreover, appellant sold Patel’s jewelry to Witness Three and her husband. (12RT 1912-1916, 1940.) Appellant told Witness Three and her husbandthat he had murdered the victim wearing Patel’s jewelry. Appellant arrived in the victim’s car and claimedthe victim’s body wasin the trunk. (12RT 1917-1919, 1924, 1926.) The bullet that killed Patel was fired from a .40 caliber semiautomatic pistol, and appellant had that type of gun. Appellant had possession of Patel’s car, and told Witness One to burn it and removethe blood (which was Patel’s). Patel’s burned out car was found aboutfive blocks from Dunton’s apartment. (12RT 1877-1880; 19RT 293 1-2934, 2938-2939; 20RT 3039; 22RT 3229-3230, 3257-3260.) Appellant talked about killing the ownerofthat car, and in addition to Patel’s jewelry, appellant brought Patel’s cellular telephone to Dunton’s apartment. (L9RT 2937-2940; 22RT 3252, 3255; 24RT 3549.) Under these circumstances, there was overwhelming evidence supporting the jury’s conclusion that appellant was guilty of kidnapping, robbing, and murdering Patel. As to Escareno, Witness One described the circumstances ofhis murder, and identified appellant as the shooter. And there was strong evidence corroborating Witness One’s testimony. Witness One took the victim’s rings, and when Escareno’s body wasfound,it appeared that rings 99 had been removed from his hand. (19RT 2953, 1573-1575; 20RT 3000; 22RT 3272-3273.) Escareno’s body was foundin the shoppingcenter, where Witness Onesaid he left the body. (20RT 3000-3003; 22RT 3275- 3276.) Multiple witnesses heard gunshots around the time Escareno was murdered. (13RT 1980, 1997-2001, 2006-2013.) When Escareno’s car was found, there was bloodin the interior, consistent with Witness One’s description of the shooting. (QRT 1572-1573, 1582.) There was also firearm evidencelinking appellant to the shooting. (15RT 2393-2397.) Finally, appellant spontaneously told Detective Winter things had “gone crazy” in the harborarea because three men had been shot in the head. (13RT 2043-2045.) Thus, the evidence that appellant murdered Escareno wasstrong. Finally; there was very strong evidencethat appellant murdered Acosta and Dunton. In ArgumentIII, ante, appellant merely argued that there was insufficient evidence to show hekilled Acosta and Dunton with premeditation and deliberation. There was evidence that appellant was in trouble with the Mexican Mafia. (20RT 3006-3008; 22RT 3285-3287; 24RT 3541-3542.) After Boxer took appellant’s gun, appellant acquired a shotgun becauseit was “a matter of life and death.” This shotgun was used to murder Acosta and Dunton. (20RT3010; 22RT 3290-329 1-3294.) Codefendant Grajeda complained that appellant and Acosta were not paying taxes. (16RT 2592-2595, 16 RT 2610-2614; 17RT 2718.) Appellant was “nervous”aboutthe situation, and spokedirectly with codefendant Grajeda before Acosta and Dunton were murdered. (16 RT 2601-2604, 16 RT 2609-2610.) Witness Two, and his wife, corroborated that codefendant Grajeda was going to deal with the failure to pay taxes. (16RT 2614-2615; 18RT 2769-2770; 19RT 2899-2902, 2906-2907.) Acosta’s son observedthat he was pacing back and forth before leaving for ameeting. (16RT 2509-2510, 2517.) 100 Witness Oneobserved that appellant had the sawed-off shotgun, and codefendant Grajeda had the shotgun they called “Shorty.” (2ORT 3034.) Appellant and Grajeda told Acosta and Duntonthat they had violated the rules, and then appellant shot Acosta in the neck and Dunton inthe head, chest, and arm. (20RT 3021, 3033-3036; 22RT 3307; 24RT 3486-3488.) Thepolice seized the shotgun when appellant was arrested (Peo. Exh. 50), which was loaded with six live rounds. (21RT 3098-3103.) Appellant admitted he wasthe last person to see Acosta and Dunton before they were killed. (16 RT 2525-2526.) Appellant called Acosta’s wife, while appellant was in jail, and during the conversation he offered his condolences and also laughed. (16 RT 2528.) Acostaleft his wife a note that he was concerned aboutattending the meeting at Dunton’s apartment. (16RT 2521-2523.) Appellant’s fingerprints matched those on the shotgun used to kill Acosta and Dunton. (19RT 2858-2863, 2865-2872.) Additional forensic evidence tied appellant to the murders, (18RT 2745- 2749, 2752-2758, 2761-2764, 2766-2768.) Finally, after this double murder appellanttried to hide with a relative he had not had contact with for almost a decade. (21RT 3083-3084.) On July 2, 1997, appellant knocked on her door, while holding a shotgun and a bag of shotgunshells. (21RT 3085-3087.) Where the joined crimesarerelatively similar, they do not carry an inflammatory effect when joined. (See People v. Marquez (1992) 1 Cal.4th 553, 573.). Accordingly, the prosecutor’s evidence was strong for all the offenses, and thetrial court acted well withinits discretion in denying the severance motion. | 4, All the Murder Charges Were Capital Offenses, So Joinder of the Charges Did Not Turn the Matterinto a Capital case. In the instant case, the capital charges did not result from the joinder of the separate incidents. (See, e.g., People v. Mendoza (2000) 24 Cal.4th 101 130, 162.) Each murder charge carried a special circumstance allegation. The Patel and Luna murders, as well as the alleged Escareno murder, were based on the felony-murderrule under section 190.2, subdivision (a) (17). These murders were also charged as.a special circumstance based on multiple murders, within the meaning of section 190.2, subdivision (a)(3). The Acosta and Dunton murders were also multiple murders within the meaning of section 190.2, subdivision (a)(3), regardless of the other charged murders. Since the double homicide made appellanteligible for the death penalty based on multiple murders, joinder of these charges with the others did not turn the matter into a capital case. (2CT 407-410.) Appellantpoints out that the Luna homicide was not initially charged as a murder with special circumstance, and the severance motion was made before the special allegations were added. (AOB 146-147.) However,the order of these events does not support appellant’s case. At the time of the motion, the court understood that the Luna case wasnot charged as a capital case. Had the court knownthat the prosecution would add a speci al circumstanceallegation, the court would have one additional reason to deny the severance motion. Moreover, there was no requirementthat the Luna case betried before any of the other case, so a conviction in any other murder case would have madeappellant eligible for the death penalty for murdering Luna, pursuantto section 190.2, subdivision (a)(2). And contrary to appellant’s assertion, joinder of the charges did not create a capital case as to Luna, because there was already a basis for charging a capital case,i.e., the felony-murderrule. | D. Appellant Has Failed to Show the Joinder Actually Resulted in Gross Unfairness Amounting to a Denialof Due Process Underfederal constitutional law, appellantis not entitled to reversal unless he showsthe joinder “actually resulted in ‘gross unfairness’ 102 amounting to a denial of due process” or rendered thetrial fundamentally unfair. (People v. Soper, supra, 45 Cal.4th at p. 783; People v. Rogers (2006) 39 Cal.4th 826, 851-853; accord, United States v. Lane (1986) 474 U.S. 438, 446,fn. 8 [106 S.Ct. 725, 88 L.Ed.2d 814]; Davis v. Woodford (9th Cir. 2004) 384 F.3d 628, 638.) He cannot meet this high burden. As already explained above, there was no prejudicial error in denying appellant’s severance motion andtrying the counts together, as the evidence was cross-admissible, the crimes were equally egregious, strong evidence supported all counts, and joinder of the charges did not have much,if any, effect on seeking the death penalty. (See, e.g., United States v. Lane, supra, 474 at p. 450; People v. Soper, supra, 45 Cal.4th at p. 784; Sandoval v. Calderon (9th Cir. 2001) 241 F.3d 765, 772-773.) The fact that the jury deadlocked as to the Escareno charges tends to show that jury wasable to differentiate among the charges and evaluate each one separately. The sameapplies to jury’s penalty phase verdicts. Thus, ultimately, appellant has not met his burden of showingthatit is reasonably probable the joinder affected the jury’s verdicts or that the joinder actually resulted in gross unfairness amounting to a denial of due process. (People v. Avila (2006) 38 Cal.4th 491, 575.) Finally, there is no dispute the conservation ofjudicial resources and public funds wassignificant as to both the trial and the instant appeal. The trial herein required a single courtroom,judge, and jury panel. There was no need for separate discovery, pretrial motions, and hearings. Similarly, the consolidation of charges eliminated the need for multiple appellate records, as well as separate appellate and habeas proceedings. (See, e.g., People v, Soper, supra, 45 Cal.4th at p. 782; People v. Mason, supra, 52 Cal.3d at p. 935.) And the public was further served by the reduced delay on disposition of criminal charges both at trial and through the appellate process. (See, e.g., People v. Soper, supra, 45 Cal.4th at p. 782; People v. 103 Burnell (2005) 132 Cal.App.4th 938, 947.) Accordingly, appellant fifth claim should be denied. VI. THE DECISION TO DENY SEPARATE TRIAL WAS WELL WITHIN THE TRIAL COURT’S DISCRETION AND APPELLANT SUFFERED NO PREJUDICE FROM A JOINT TRIAL Appellant’s sixth claim on appealis that the trial court’s refusal to severhis trial from that of codefendant Grajeda requires reversal. (AOB 177-184.) This claim lacks merit because the trial court properly exercised its discretion to proceedwith a jointtrial. In doing so, the trial court also preserved appellant's federal constitutional rights. Even assumingerror, appellant hasfailed to. show a reasonable probability he would obtain a morefavorable result at a separate trial.*” A. Appellant Has Failed to Establish Error or Prejudice The California Constitution will not be construedto prohibit criminal joinder as prescribed by the Legislature. (Art. I, § 30, subd. (a); People v. ~ Homick (2012) 55 Cal.4th 816, 848; People v. Sully (1991) 53 Cal.3d 1195, 1221-1222.) Whether to grant a separate trial is within the trial court’s discretion, and the court’s ruling is reviewed for abuse ofthat discretion. (People v. Box (2000) 23 Cal.4th 1153, 1195; People v. Ervin (2000) 22 Cal.4th 48, 69.) Appellate courts almost never interfere with thetrial court’s exercise of discretion denying severance. (People v. Boyde (1988) 46 Cal.3d 212, 232, overruled on another point sub nom. Boydev. California (1990) 494 U.S. 370 [110 S.Ct. 1190, 108 L.Ed.2d 316].) However,“{[s]everance motionsin capital cases generally receive heightened scrutiny for potential prejudice.” (People v. Homick, supra, 55 Cal.4th at p. 848, citing People v. Coffman and Marlow (2004) 34 Cal.4th 1, 43-44.) Abuse ofdiscretion in denying the severance depends upon the 37 The relevant proceedings wereset forth above, in Argument V. 104 facts as they appearedat the time of the hearing on the motion. (Peoplev. Burney (2009) 47 Cal.4th 203, 237; People v. Mason (1991) 52 Cal.3d 909, 934.) However, “[i]f [this Court] conclude[s] the trial court abusedits discretion, reversal is required only if it is reasonably probable the defendant would have obtained a more favorable result at a separatetrial.” (People v. Burney, supra, 47 Cal.4th at p. 237.) In People v. Cummings (1993) 4 Cal.4th 1233, 1286, this Court observed that separate trials may be warranted in cases where:(1) there is an incriminating confession by one defendant; (2) the defendant will be prejudiced by an association with codefendants; (3) the jury could be confused by multiple conflicting defenses; (4) and codefendant would exonerate the defendantat a separate trial. (citing People v. Turner (1984) 37 Cal.3d 302, 312, overruled on other grounds in People v. Anderson (1987) 43 Cal.3d 1104, People v. Massie (1967) 66 Cal.2d 899, 917, 59, and Zafiro v. United States (1993) 506.U.S. 534, [113 S.Ct. 933, 122 L.Ed.2d 317].) Here, none of these factors were presentin thetrial below. The prosecution did not present an incriminating confession by codefendant Grajeda. Both defenses were based on,identification, the most easily understood defense; so there was no confusion based on “multiple conflicting defenses.” There was no evidence that codefendant Grajeda would exonerate appellant at a separate trial. Appellant was not prejudiced by association at a joint trial with codefendant Grajeda because both of them were equally reprehensible defendants. In fact, appellant was the more reprehensible defendant in light of the numerous violent charges against him. “Additionally, severance may be called for when there is a serious risk that a joint trial would compromisea specifictrial right of one of the defendants, or prevent the jury from makinga reliable judgment about guilt or innocence.” (People v. Burney, supra, 47 Cal.4th at p. 237, internal 105 quotations omitted.) In the instant case, appellant and codefendant Grajeda “were charged with having committed commoncrimes involving common events and victims, presenting a classic casefor a jointtrial.” (Peoplev. Homick, supra, 55 Cal.4th at p. 848, quoting People y Coffman and Marlow, supra, 34 Cal.4th at p. 40, internal quotations omitted.) However, appellant nonetheless claims he wasprejudiced bya joint trial, because codefendant Grajeda presented an antagonistic defense that “improperly suggested [appellant]’s guilt on a propensity theory.” (AOB 178-179.) This claim is meritless. Appellant and codefendantboth relied on an identity defense, and neither blamed the other, so there was nothing antagonistic betweentheir defenses and noprejudice. Thus,the trial court acted within its discretion. Appellant suggests that codefendant Grajeda’s counsel “sought to shift the blame” to appellant for the double homicide. (AOB 179.) To support his argument, appellant cherry pickstiny bits from a lengthytrial. Appellant complains that codefendant Grajeda’s counsel arguedthat the Mexican Mafia had nothing to do with the Acosta/Dunton homicides, so the jury should not convict him solely on his relationship with that prison gang. Counsel also argued that Acosta and Dunton were murdered by somebody who wasviolent, paranoid and drug crazy. (28RT 3988.) Second, counsel asked Witness One if he knew, before the Escareno homicide, that the. person he was with “had murdered before.” Witness One answeredthat he “knew before that he had murdered someone for some jewelry.” (22RT 3318.) Appellant uses a “see also”signal to point to Reporter’s Transcript, Volume 18, pages 2407-2418, but makes no argument based onthis reference. (AOB 179.) - From these two bits of minutia, appellant argues that codefendant Grajeda’s defense was antagonistic to his defense, while at the same time conceding that “mutually antagonistic defense are not prejudicial per se.” 106 (Zafiro v. United States, supra, 506 U.S. at p. 538.) Appellant also recognizes that this remains true “even if defendants are hostile to or seek to blame one another.” (People v. Tafoya (2007) 42 Cal.4th 147, 162; see also United States v. Throckmorton (9th Cir. 1996) 87 F.3d1069, 1071- 1072.) Therefore, even assuming conflicting defenses, there was no error becauseif “conflicting or antagonistic defenses alone required separate trials, it would negate the legislative preference for joint trials and separate trialswould appear to be mandatory in almost every case.” (People v. Souza (2012) 54 Cal.4th 90, 110, internal citation omitted.) Nonetheless, to support his argument, appellant again points to tiny bits of the record to suggest that codefendant Grajeda might benefit from a jointtrial, and that this necessarily meant appellant would somehow be disadvantaged. (AOB 180-181.) This argument makes no sense. The jury wasnot privy to any of the discussions by the parties or the court had, and therefore these instructions had by appellant nothing to do with determining whether appellant was prejudiced by a jointtrial. Thus, even assuming error, appellant has failed to establish a reasonable probability that the he would have obtained a more favorable result at a separate trial. (People v. Burney, supra, 47 Cal.4th at p. 237.) Appellant has also failed to establish that he was prejudiced at the penalty phase. (AOB 181-184.) Appellant argues that he was prejudiced because the jury knew that the prosecution sought the death penalty for appellant and not codefendant Grajeda. Appellant recognizes that this claim has been rejected by this Court in People v. Tafoya, supra, 42 Cal.4th at pages 163-164. (AOB 182, fn. 58.) Appellant presents no reason for this Court to reconsiderits prior holdings. Accordingly, appellant has failed to establish either error or prejudice understate law or the California Constitution. 107 The federaltest is similar: reversal is not warrantedunless a jointtrial “was so manifestly prejudicial as to require the judge to exercisehis discretion in but one way, by ordering a separatetrial.” (United Statesv. Nelson (9th Cir. 1998) 137 F.3d 1094, 1108; United Statesv. Decoud (9th Cir. 2006) 456 F.3d 996, 1008 [same]; United States v. Johnson (9th Cir. 2002) 297 F.3d 845, 855 [same]; see United Statesv. Lewis (9th Cir. 1986) 787 F.2d 1318, 1321 [“The prejudice must have been of such magnitude that the defendant’s right to a fair trial was abridged.”].) For the reasons discussed above, appellant has failed to show anyviolation of the federal Constitution. Accordingly, appellant’s sixth claim should be denied. VII. APPELLANT’S WILLFUL REFUSAL TO ATTEND HIS TRIAL WAS RELEVANT TO SHOW HIS CONSCIOUSNESS OF GUILT; THE JURY WAS PROPERLY INSTRUCTED HOW TO CONSIDER SUCH EVIDENCE; THE TRIAL COURT DID NOT COMMIT MISCONDUCT BY INTRODUCING SUCH EVIDENCE SUA SPONTE; AND, ANY ALLEGED ERROR WAS HARMLESS Appellant’s seventh claim on appeal is that the trial court erroneously ‘required the presentation of evidence ofhis refusal to come to court one morning, erroneously instructed the jurors that they could consider the refusal as evidence of a consciousnessofguilt, and failed to perform the role of a neutral arbiter. Appellant asserts that these errors violated his rights under California law, the California Constitution, and the feder al Constitution. (AOB 185-225.) Appellant’s claims should be rejected. A. Relevant Proceedings On December 14, 1999, during the morning session, the court was informedthat appellant refused to leave his cell and cometo count, so the court issued an extraction order to removeappellantfrom his cell, with or without his consent. (3CT 701-702.) Later that morning, the court was informedthat appellant had decided to come to court, but only after he was told of the extraction order. (QRT 1473.) 108 The court noted that one juror’s co-worker had covered a business meeting, so that juror could arrive on time. The court observedthat the Jurors seemedirritated by the delay because they had “buzzed” the court twice. About 40 minutesafter trial was scheduled to resume, appellant appeared with counsel. (QRT 1473-1474; 3CT 703-705.) After the jury cameinto. the courtroom, the court stated: Wedo haveall the jurors present, and I do thank you for being on time. I know atleast one of you had to work hard to get here on time, even though we werestarting at 10:30 [a.m.] ~ The reason for the delay may well be presented to you later during the trial. If you’re frustrated by it, you’re no less frustrated than I was. We’ll do ourbest to be on time, and I appreciate the fact that you were here on time. (ORT 1475.) Later that day, the appellant moved for a mistrial because: (1) there was no evidence showing whetherhis refusal to attend trial was based on “illness or what ever may be”; (2) the court’s comments to the jury created the inference that the delay was caused by appellant; and (3) evidence of appellant’s refusal was irrelevant to the guilt phase unlesshetestified. (ORT 1507.) The court found that appellant’s refusal wasrelevant to show a consciousness of guilt. Appellant’s counsel replied that such evidence was “totally impermissible” during the guilt phase. (QRT 1508.) The court disagreed with counsel, stating that the need for an extraction order showed “pretty well it [was] a refusal.” The court found that appellant’s refusal showed a consciousnessofguilt, and the court could call its own witnesses, so the jury would hear evidence addressing this subject.*® The court madeit clear that “the jury would get . . . evidence on *8 The court stated that it “intend[ed] to do even morethan thatif this happens again.” (9RT 1508.) 109 the subject, not my statement about what I’ve been informed about.” The court denied appellant’s motion for a mistrial. (QRT 1508-1509.) Later that day, the court heard testimony regarding appellant’s refusal to come to court. Subsequently, appellant arguedthat his refusal to come to — court did not support consciousnessof guilt instructions and was inadmissible under Evidence Codesection 352. (1ORT 1664.) The court noted that the facts werenotin dispute. The court found that the undisputed facts showed “a situation in which fourtimes he had the opportunity to come to court andrefused, and capsulized that saying that he would go to when he is ready.” This was, in the court’s view, “inconsisten t with innocence and showsa consciousnessofguilt.” (LORT 1664.) Appellant’s counsel addressed the court’s intent to introduce the evidenceat trial. Counsel concededthat the court could call witnesses under Evidence Code 775, but expressed concern that the court was introducing evidence of appellant’s consciousness of guilt. The prosec utor offered to present the evidence, andthe court agreedthat this wasth e proper course. (1ORT 1666-1667.) The court told the parties: “It’s not my intension to interfere with either side, simply to expose the jury som ething that is uniquely appropriate to the court’s control.” (1ORT 1667.) The court found appellant’s actions werelike a defendant whorepeatedly refuses to stand upin court to display his height. (ORT 1667-1668.) The jury heard the evidence regarding appellant’s refusal, as set forth in the Statement:of Facts. Before beginning deliberations, the jury was instructed: If you find that [appellant] voluntarily absented himself from this trial by refusing to come to court, you may consider that as a circumstance tending to prove a consciousnessofguilt. That conduct, however, is not sufficient by itself to prove guilt, andits weight andsignificance,if any, are for you to decide. (3CT 876.) 110 B. Appellant’s Claim WasForfeited Because He Failed to Makea Specific and Timely Objection Reviewing courts will not consider a challenge to the admissibility of evidence absent a specific and timely objection in the trial court on the ground soughtto be urged on appeal. (People v. Champion (1995) 9 Cal.4th 879, 918-919; Evid. Code, § 353.) Here, appellant forfeited most of his current challenges to the admission of his willful refusal to come to court. Appellant merely argued that the evidence was inadmissible under Evidence Code section 352. (LORT 1663.) Accordingly, appellant has forfeited his argumentthat evidence of willful refusal to come to court should have been excluded under Evidence Code section 1101. (People v. Carter (2005) 36 Cal.4th 1215, 1256.) Furthermore, the section 352 objection did not preserve any federal constitutional claims. (People v. Partida (2005) 37 Cal.4th 428, 438, fn. 3 [“We reiterate that a defendant may not argue that the court committed error for a reason not includedin the trial objection”].) For thefirst time on appeal, appellant claimsthat the trial court “diminished the proof beyond a reasonable doubt standard, violating [appellant]’s rights to a fair trial, to the presumption of innocence, to properly instruct the jury, to counsel, to due processoflaw,to a reliable determination of his guilt and sentence, and to be free from cruel and unusual punishment.” (AOB 208-215.) These claims wereforfeited. (People v. Riggs (2008) 44 Cal.4th 248, 292 [“To the extent defendant on appeal raises a federal constitutional claim distinct from his claim that the trial court abused its discretion under Evidence Code section 352, he forfeited this claim by failing to identify that ground in his objections to the trial court.”]; People v. Heard (2003) 31 Cal.4th 946, 972, fn. 12 [failure to raise federal constitutional objection in trial court forfeits appellate claim]; People v. Brown (2003) 31 Cal.4th 518, 546 [‘“Wereject the constitutional claims at the threshold, for we find defendant 111 failed to preserve these issues for appeal by failing to object on the state and federal constitutional grounds now asserted.”].) Accordingly, appellant has forfeited all federal constitutional claims by failing to raise these concernsin the trial court. (United States v. Olano (1993) 507 U.S. 725, 731 [113 S.Ct. 1770, 123 L.Ed.2d 508] [constitutional rights may be forfeited in criminaltrial by failure to make timely assertion ofright].) C. Applicable Law Regarding Relevance and Admissibility Pursuant to Evidence Code Section 352 “Only relevant evidence is admissible [citations] and all relevant evidence is admissible unless excluded under the federal or California Constitution or by statute.” (People v. Shied (1997) 16 Cal.4th 1, 13, citing Evid. Code, §§ 350, 351; People v. Crittenden (1994) 9 Cal.4th 83, 132; People v. Garceau (1993) 6 Cal.4th 140, 176-177; People v. Babbitt (1988) 45 Cal.3d 660, 681.) Evidence Code section 210 provides: “Relevant evidence” means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequenceto the determination of the action. Thetrial court has broad discretion in determining the relevance of evidence, but lacks discretion to admit irrelevant evidence. (People v. Shied, supra, 16 Cal4th at p. 14.) Thetest of relevance is whether the evidencetends logically, naturally, and by reasonable inference to establish material facts such as identity, intent, or motive. (/d. at pp. 13-14, citing People v. Garceau, supra, 6 Cal.4th at p. 177.) Evidence leading only to speculative inferencesis irrelevant. (People v. Kraft (2000) 23 Cal.4th978, 1035, citing People v. De La Plane (1979) 88 Cal.App.3d 223, 244.) Evidence Code section 352 provides: The court in its discretion may exclude evidenceif its probativevalueis substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time 112 or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. A finding as to the admissibility of evidenceis left to the sound discretion ofthe trial court and will not be disturbed unlessit constitutes a manifest abuse ofdiscretion. (People v. Kipp (1998) 18 Cal.4th 349, 371; People v. Mickey (1991) 54 Cal.3d 612, 655; People v. Karis(1988) 46 Cal.3d 612, 637.) Appellate courts rarely find an abuse of discretion under Evidence Code section 352. (People v. Ramos (1982) 30 Cal.3d 553, 598,fn. 22, reversed on other grounds in California v. Ramos (1983) 463 U.S. 992 [103 S.Ct. 3446, 77 L.Ed.2d 1171].) The “‘prejudice’” referred to in Evidence Code section 352 is that which “uniquely tends to evoke an emotionalbias against a party as an individual, while having only slight probative value with regard to the issues.” (People v. Garceau, supra, 6 Cal.4th at p. 178; see also People v. Smithey (1999) 20 Cal.4th 936, 973; People v. Shied, supra, 16 Cal.4th at p. 19.) D. The Challenged Evidence Was Properly Admitted to Show Appellant Had a Consciousness of Guilt This Court has found several different types of evidence support an inference that a defendant has a consciousness of guilt. The fabrication of evidence, the suppression of evidence, and willful falsehoods each support such an inference. (People v. Watkins (2012) 55 Cal.4th 999, 1028,citing People v. Geier (2007) 41 Cal.4th 555, 589; see also United States v. Jackson (7th Cir. 1989) 866 F.2d, 838, 845, [defendant’s refusal to furnish writing exemplars, like evidence offlight and concealment, is probative of consciousnessof guilt].) This Court has also held that certain behaviors while in custody support an inference a defendant has a consciousness of guilt. For example, in People v. Ochoa (2001) 26 Cal.4th 398, 438-439, the defendant, who was facing murder charges, tattooed the numbers “1-8-7” onto his forehead. 113 This Court held that “[t]he trial court properly found the tattoo represented an admission of defendant’s conduct and a manifestation ofhis » consciousness of guilt. The [trial] court reasonably considered the tattoo highly probative,as it would be unlikely that an innocent person would so advertise his connection to murder.” Likewise, in People v. Hartsch (2010) 49 Cal.4th 472, 505, the defendant, also facing murder charges, displayed the number“187,” by shaving the hair on his head. As in Ochoa, this Court rejected the defendant’s claims that such evidence “was irrelevant, speculative, and highly prejudicial” because “as the trial court noted, the evidence wasrelevant and not particularly prejudicial.” (People v. Hartsch, supra, 49 Cal.4th at p. 505, citing People v. Ochoa,supra, 26 Cal.4th at pp. 438-439.) Willfully violating certain court orders can support an inference of a consciousnessofguilt. For example, “[a] defendant’s refusal to participate in a lineup is admissible evidence supporting an inference of consciousness of guilt.” (People v. Watkins, supra, 55 Cal.4th at p. 1027 citing People v. Johnson (1992) 3 Cal.4th 1183, 1235.) Refusing to follow a court order for a hair or blood sample permits such an inference. (People v. Farnam (2002) 28. Cal.4th 107, 164.) This applies to voice samples too (People v. Ellis (1966) 65 Cal.2d 529, 536-539), as does “defendant’s refusal to removehis sunglassesso that the witness could better identify him”after being orderedto do so in open court. (People v. Ramirez (2006) 39 Cal.4th 398, 456). Notably, under state law and the federal Constitution, it makes no difference whether a defendant believes that he had the right to refuse a court order where the “defendantfails to establish that his refusal was protected by law[.]” (People v. Farnam, supra, 28 Cal.4th at p. 165, citing People v. Roberts, supra, 2 Cal.4th at p. 311.) The instant matter is a capital case; so, as the trial court observed, appellant had “no right to absent himself” because “Thje must be present.” 114 (1ORT 1661.) The record shows appellant refused to be ready for court by 6:30 a.m., even though Deputy Ganarial specifically and repeatedly told appellant to get ready. Appellant continued to willfully violate his obligation to leave his cell for over three hours. When appellant was advised that the court had issued an extraction order, hestill refused to follow that order for about twenty minutes. (12RT 1848-1850.) Appellant’s actions showedhis intention to stay inside his cell, necessarily delaying his trial, despite his obligation to be present in court, until he was faced with a forcible extraction. Even then, appellant waited until execution of the order was imminent. Thus, accordingly, appellant’s unprivileged and willful refusal to follow court orders caused a delay of about three hours and thirty minutes. Like the defendants in Ochoa and Hartch, it was “highly unlikely that an innocent person would”willfully act in this fashion. (People v. Ochoa, supra, 26 Cal.4th at p. 437.) Appellant denied that he committed any ofthe crimes charged by the prosecution, yet he made the decision to rudely and willfully disobey the court’s orders to come to court. An innocent person would havenointerest in acting this way. Appellant’s counsel conceded that appellant’s comment, “fuck court,” was not something an innocent man would do. (1ORT 1658.) Furthermore, forcing jurors to wait for trial to resume, after the jurors were on time, is not in an innocent person’s interest. Noris delaying the trial where a defendant seeks exoneration. And in a capital case, like appellant’s, a defendant faces the penalties of death orlife without parole, the harshest punishments under law, makingit imperative that the defendant obey court orders and attend court. Appellant’s actions are indistinguishable from out-of-custody defendants who refuse to come to court. When a defendantfails to appear for trial, without excuse for the absence,it is “reasonable to infer that defendant’s absence was voluntary and it was a fact relevant to the 115 determination as to his guilt or innocence.” (People v. Snyder (1976) 56 Cal.App.3d 195, 199.) Appellant’s willful refusal is also similar to a defendant’s decision to attempt escape from incarceration, because each case involvesthe intent to avoid prosecution and punishment. (See People v. Carrera (1989) 49 Cal.3d 291, 314 [escape from jail after being arrested and charged with crimes admissible to show a consciousness of guilt]; see also People v. Schafter (1911) 161 Cal. 573, 579 [evidence of a plan to escape shows a consciousnessofguilt even if the plan was neveractually attempted].) | | In People v. Sherren (1979) 89 Cal.App.3d 752, 762-764, an out-of- custody defendant twice failed to appear for a pretrial hearing. “There was - no evidence as to why [the defendant] failed to appear.” (dd.at p. 763.) The court took judicial notice of these absences, and the prosecution argued that jury could infer that these absences evidenced the defendant “knew he was guilty and wanted to evadetrial.” (Ibid.) The court instructed the j ury “with CALJIC No.2.52 onflight as showing consciousness of guilt.” (bid. footnote omitted.) The appellate court rejected challenges based on relevance and Evidence Codesection 352. ([bid.) Likewise, appellant’s claim should be denied. Appellant attempts to distinguish Sherren, noting : “An out-of- custody defendant’s failure to appear may well reveal[the] intent to avoid prosecution or punishment.” (AOB 197, fn. 63.) However,it is immaterial whether a defendantis in custody or out of custody: the underlying motive, to avoid prosecution or punishment,is fundamentally the same. Logically, appellant’s refusal to come to court was relevant because any deliberate failure to come to court supports the inference that appellant expected to be found guilty of one, more, or all of the charges against him because he was actually guilty. Moreover,in Sherren there was no evidence as to why the defendant missed court, but in the instant case the evidence unquestionably © 116 established that appellant willfully refused to come to court without any privilege to do so. This difference dispels any concern that appellant’s conduct was not relevant, because the reason for the absence was knownto be unprivileged. Thus, as in Sherren, appellant’s willful refusal to come to court, absent the imminent execution of an extraction order, was relevant and probative to his consciousnessofguilt. Appellant cites to this Court’s cases upholding the admission of consciousness ofguilt evidence and the giving of related instructions in cases offlight, resisting a court orderto give hair and blood samples, failure to remove sunglasses for in-court identification, and escape. (AOB 196.) Based onthese cases, appellant asserts that consciousness ofguilt evidence must involve “a purpose to avoid being observedorarrested,to prevent the production or presentation of evidence, or to avoid punishment.” (AOB 197.) However, this Court’s cases, cited above, show that consciousness of guilt evidence is not limited as appellant suggests. Evenso, appellant’s actions met appellant’s test because he willfully refused to cometo court, and in doing so prevented the presentation of any evidence during his absence. Appellant also cites to cases where the defendant was permitted to be absent by the court. (AOB 199.) However, these cases do not support appellant’s argument because they do not involve the defiance ofa court orderor the disruption and delay caused by a deliberate refusal to come to court. Thetrial court also acted within its discretion under Evidence Code section 352. First, the probativevalue of the evidence wasnot substantially outweighedby the probability it would necessitate undue consumption of time because Deputy Ganarial’s testimony constituted only 11 pages in a trial with thousands of pages of Reporter’s Transcript. Second, the evidence did not create substantial danger of undue prejudice because the failure to come to court is not the type of evidence that “uniquely tend[s] to 117 evoke an emotional bias against” appellant. (People v. Garceau, supra, 6 Cal.4th at p. 178.) This was especially true in this case. Appellant was on trial for five murders, so there was nothing overly prejudicial about his refusal to come to court. Appellant did not hurt anyone, or even touch anyone, and the extraction order did not need to be executed. There was no evidence that appellant would be punished in any wayfor refusing to come to court. Under these circumstances, the jury merely heard evidence that appellant willfully refused to cometo court until after the court issued an extraction order. Third, there was not a substantial dangerthatthis evidence caused the jury to confuse the issues or be mislead. There was no basis for confusion becausethe issues wereeasily differentiated. The overriding issue was whether appellant committed the charged crimes, and the evidence ofappellant’s refusal to come to court was merely one piece of evidencethat appellant was guilty. Finally, there was nothing misleading about the evidence because it was true and accurate. Therefore, “[b]ecause the testimony was neither inflammatory nor misleading, its admission was proper under Evidence Codesection 352.” (People v. Farnam, supra, 28 Cal.4th at p. 154.) Also, appellant has failed to show any federal constitutional error because the evidence wasrelevant and not unduly prejudicial. (Jammal v. Van de Kamp (9th Cir. 1995) 926 F.2d 918, 920.) E.- Consciousness of Guilt Instruction Thetrial court has the duty to instruct on general principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty to refrain from instructing on principles of law which not only are irrelevantto the issues raised by the evidence butalso havethe effect of confusing the jury or relieving it from makingfindings on relevant issues. [Citation.] It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which,if believed by the jury, will support the suggested inference. 118 (People v. Alexander (2010) 49 Cal.4th 846, 922, internal quotations and additional internal citations omitted.) “When testimony is properly admitted from which an inference of a consciousness of guilt may be drawn, the court has a duty to instruct on the proper methodto analyze the testimony.” (People v. Edwards, supra, 8 Cal.App.4th at p. 1104.) The record need only have “‘some evidence’” to support the suggested inference: (People v. Alexander, supra, 49 Cal.4th at p. 922, quoting People v. Coffman and Marlow, supra, 34 Cal.4th at p. 1020.) In the instant case, as argued above, the evidence of appellant’s willful refusal to cometo court was relevant to his consciousness of guilt, and therefore the trial court properly instructed the jury on this evidence and the suggested inference. F. Appellant Has Failed to Show Judicial Misconduct or Prejudice Appellant claims thetrial court improperly became an advocate for the prosecution by using its powersto call a single witness andinstruct the jury regarding appellant’s willful refusal to cometo court in order to punish appellant for his disrespect to the court, to deter similar conduct, and to punish appellant and counsel for counsel’s mistrial motion. Appellant asserts this violated his rights to due process andthe right to counsel. (AOB 215-221.) These claims should be rejected because they were forfeited by appellant’s failure to raise these concernsin thetrial court. (People v. Harris (2005) 37 Cal.4th 310, 350 [Defendant argues the court overstepped its bounds with respect to the tone, form, and number of questions posed. However, he did not object to the trial court’s questioning, thus making the claim not cognizable on appeal.”’], citing People v. Corrigan (1957) 48 Cal.2d 551, 556.) Assuming this Court reaches the merits of appellant’s claim,it should be rejected. Understate law and the federal Constitution, a defendant has a 119 due processright to an impartial trial judge. (Arizona v. Fulminante (1991) 499 U.S. 279, 309 [111 S.Ct. 1246, 113 L-Ed.2d 302]; People v. Brown (1993) 6 Cal.4th 322, 332.) In People v. Harris, this Court stated: Evidence Code section 775 confers upon thetrial judge the power, discretion and affirmative duty... [to] participate in the examination of witnesses wheneverhe believes that he may fairly aid in eliciting the truth, in preventing misunderstanding, in clarifying the testimony or covering omissions,in allowing a. witness his right of explanation,andin eliciting facts material to a just determination ofthe cause. [Citations.] [{] The constraints onthetrial judge’s questioning of witnesses in the presence ofa jury are akin to the limitations on the court’s role as commentator. Thetrial judge’s interrogation mustbe... temperate, nonargumentative, and scrupulously fair. The trial court may not ... withdraw material evidence from the jury’s consideration, distort the record, expressly or impliedly direct a verdict, or otherwise usurp the jury’s ultimate factfinding power.’ [Citations.| (People v. Harris, supra, 37 Cal.4th 3 at p. 350,all internal quotatio ns and citations omitted.) In the instant case, appellant has failed to show any judicial misconduct or prejudice. There was nothing in the record which demonstrates the loss of impartiality. (People v. Jenkins (2000) 22 Cal.4th 900, 1050.) Similarly, there is nothing in the record showingthetri al court engaged in bias against the defense. (Ibid.) Appellant speculates t hat the trial court intended to punish appellant for his disrespect to the court . (AOB 218-219.) There was no evidencethat the court intended to “punish” him. There was no evidencecontradicting that appellant willfully r efused to come to trial. And the court’s comments that appellant, and codef endant Grajeda, were not goingto control the trial were whole appropriate b ecause it is simply irrational to allow defendants to choose if, and when, he or she wishes to attend his trial. This was a capital case involving five murde rs, andthetrial could not resume without him, so the court obviously neede d 120 Appellant willfully refused to come to court, and the court believed this wasrelevant to his consciousnessof guilt; so, the court had the prosecution present this evidence during the guilt phase. The court did not “punish” appellant; the court took proper action in response reacted to appellant’s decision to disobey court orders. Appellant also argues that the court intended to deter similar conduct. (AOB 212-213.) Such intent is not misconduct. Section 1044 providesthat a trial court has the duty to controlthe trial proceedings. (See People v. Carpenter (1997) 15 Cal.4th 312, 397.) Appellant was willfully violating court orders, and disruptinghistrial, and codefendant Grajeda’s so deterring further incidents is exactly what the court should try to achieve. Finally, appellant asserts that the trial court’s intent was to punish the defense for the mistrial motion. (AOB 219.) But appellant has failed to show, in any way,that the trial court intended to punish the defense. Rather, the court wanted the evidence admitted because it was relevant. There is nothing atypical about a court and a party to have a serious exchange regarding any important aspectofthe trial. For these reasons, appellant has failed to show judicial misconduct understate law or the federal constitution. Anystate-law error was clearly harmless under the “reasonable probability” test of Watson, and any federal constitutional error was harmless under the “beyond a reasonable doubt” test of Chapman. Asin Ochoa, the evidence ofthe “1-8-7” shaved in the defendant’s hair must be viewedin light of the overwhelming evidence that appellant was guilty of the charged crimes. Here, appellant’s failure to cometo court, if considered at all by the jury, would not have much effect on the nature of the evidence. This evidence was not inflammatoryor a significant part of the prosecution’s strong case against appellant. (See Statement of Facts, ante.) Thus, the error, if any, does not require reversal because it is not reasonably 121 probable appellant would have received a more favorable outcomeifthe evidence had not been admitted. Moreover, considering the strength of the prosecution’s case, any error was harmless beyond a reasonable doubt. Accordingly, appellant’s seventh claim on appeal should be denied. VIII. APPELLANT’S HAS FORFEITED MOST OF HIS CHALLENGES TO THE EXPERT TESTIMONY ABOUT THE MEXICAN MAFIA; THE TRIAL COURT ACTED WITHIN ITS DISCRETION TO ADMIT RELEVANT EVIDENCE; AND, IN ANY CASE, APPELLANT HAS FAILED TO ESTABLISH PREJUDICE. Appellant’s eighth claim on appealis that the trial court’s erroneous admission ofhighly inflammatory expert testimony about the Mexican Mafia rendered jurors fearful for their own safety, and deprived appellant o f his rights to due process and fair trial. (AOB 226-249.) Appellant’s claim should be denied. The claim is almostentirely forfeited because appellant either failed to object or failed to object on the grounds he now asser ts for the first time on appeal. In any event, the trial court properly admitt ed the gang evidence becauseit was highly relevant to the Acosta/Dunton double homicide, and,in the context of the whole case, it was not prejudi cial to the defense. A. Relevant Proceedings Prior to opening statements, the prosecutor addressed the eviden ce regarding the Mexican Mafia, and argued it was admissible to show motive in the Acosta/Dunton homicides. The court asked: “That this was a contract killing carried out on behest of the Eme by the defendants ?” The prosecutor assented. Appellant’s counsel objected that “{t]here is no evidence . . . that [appellant] . . . is a memberofthe Mexican Mafia [,]” so “bly utilizing that statementthatthis is a contract killing carried out by Eme,.. . implies that [appellant] is a member of Eme.” (8RT 1282-1 283.) The prosecutor told the court that he had “no evidence that [appellant ] is associated with the Mexican Mafia[,]” but the evidenceestablished a 122 motive to kill Acosta and Duntonfor their failure to pay taxes to the Mexican Mafia. (8RT 1284-1285.) Codefendant Grajeda’s counsel objected that there was no foundational evidence that the “Mexican Mafia” was anything more than “talk, gossip and newspaperpublicity.” The court rejected this argument. (8RT 1286-1287.) Neither appellant nor codefendant Grajeda raised any other objections prior to (@RT 1287-1309), or during (8RT 1309-1326), the prosecutor’s opening statement. Later on, the parties and the court addressed Sergeant Valdemar’s proposed testimony. The prosecutor represented that Sergeant Valdemar wouldtestify that the type of tattoos appellant had announced membership in a Hispanic street gang and allegiance to the Mexican Mafia. (14RT 2115-2116.) Appellant’s counsel objected that appellant’s membership in a street gang, if any, was irrelevant to the crimes other than the Acosta/Dunton homicides. Counsel also stated: “And to a degree it’s a form of character evidence” appellant had not “placed in issue.” (14RT 2117.) The prosecutor clarified that the Mexican Mafia used street gang members to commit homicides and appellant was found with the shotgun used to kill the victims. Further, appellant committed the murder with codefendant Grajeda, a Mexican Mafia member, showing appellant was a “loyal soldier ofEme” whenhekilled Acosta and Dunton. (14RT 2117- 2118.) The prosecutor concluded this evidence pertainedto the Acosta/Dunton homicides (counts10 and 11). Appellant’s counsel objected that the prosecution’s theory was “speculation” (14RT 2118), and relied on the conclusion of Witness One (14RT 2121-2122). The court found that the proposed Mexican Mafia evidence was relevant to the motive for killing Acosta and Dunton and gave context to the terminology used by someof the witnesses. The court addressed whether the evidence should be excluded under Evidence Code section 352. The court acknowledged that evidence related to gangs could be “highly 123 prejudicial information,” but that did not “overcome[] the probative value of proving the motive andtherefore” the “why” and “how”these killings “took place.” (14RT 2122.) The court noted that it appeared Acosta and Dunton had been executed. (14RT 2112-2113.) Appellant’s counsel argued that motive was not relevant because it was unnecessary to establish premeditation and deliberation for the Acosta/Dunton homicides. (14RT 2123-2124.) The court foundthat the evidence was highly relevant to appellant’s motivefor killing Acosta and Dunton, and was not inadmissible under Evidence Code section 352. (14RT 2124-2129.) Sergeant Valdemartestified that while in jail, gang members committed assaults, battery, murder, making contraband weapons, robbery, rape, extortion, and drug crimes. Appellant’s counsel asked for a side bar, wherehe argued that appellant would be prejudiced if Sergeant Valdemar established his expertise by telling the jury about such crimes because the jury “was obviously aware” that appellant wasinjail, and “to a degree”it was “an improper form of character type evidence.” (14RT 2220-2221 ) The court asked the prosecutor how Sergeant Valdemar’s experience with gangs in custody was relevant. The prosecutor stated Sergeant Valdemar’s in-custody experience with gang memberswasnodifferent than similar out-of-custody experience, and that there was nolonger a need to ask questions about that subject. (14RT 2223.) The prosecutor recitedall the opinions he expected Sergeant Valdemarto offer (14RT 2223-2225), and explained that he called Sergeant Valdemar early during the trial to give context to the other witnesses testifying about the Acosta/Dunton homicides (14RT 2232-2233.) Afterward, the court addressed the original objection, finding that there was no objection before Sergeant Valdemar’s answer, but the court would sustain a further objection to evidence about in-custody gangactivities, unless it related directly to the expert’s opinion in this case. (14RT 2236.) 124 Later on, when Sergeant Valdemarwasrecalled to the stand, he explained that he had been involved in a program designed to prevent gang activity “within the custody environment.” Appellant counsel objected on relevance grounds,but the court overruled the objection. Sergeant Valdemarexplained that hard core gang members committed the majority of assaults, so they wereplacedin special units to segregate them from the general population. (14RT 2346-2347.) Sergeant Valdemaraddressed his experience recording Mexican Mafia meetings. (15RT 2352-2353.) The court sustained appellant’s objection to testimony generally addressing the content of these meetings, finding the question was “too broad.” The prosecutor narrowedhis question to Sergeant Valdemar’s personal observations. Without objection, Sergeant Valdemartold the jury that the majority of meetings he overheard involved murderor drug dealing within Mexican Mafiaterritory. (1SRT 2354-2355.) The prosecution asked Sergeant Valdemarifhe had any conclusions about the Mexican Mafia, such as where, when, and by whom it was started. Codefendant Grajeda’s counsel objected on relevance grounds. The court sustained the objection, subject to an offer by the prosecution. (15RT 2356.) The prosecutor explained that background information, regarding the extent of the Mexican Mafia’s history of control overstreet gangs, drug dealers, and inmates, was necessary to understand why appellant killed two people who appearedto behis friends. (JSRT 2356- 2359.) Codefendant Grajeda’s counsel stated: “We have not objected to previous questions that the street gangs are in fact controlled by Eme[, so] that[] come[s] in.” However, counsel complainedthat additional inquiry was “just repetitive.” (15RT 2358-2359.) The court overruled codefendant Grajeda’s objection. Appellant’s counsel reiterated there was no proof appellant was a Mexican Mafia member. The court rejected this reasoning 125 because such evidence wasto be established later during trial. Appellant raised no further objection. (1SRT 2359-2360.) | Without objection, Sergeant Valdemartestified that the Mexican Mafia hadstrict rules which prohibited cooperation with the legal system in any way, and had the means to acquirecourt documents confirming a violation ofthis rule. He also opined that the Mexican Mafia demanded absolute loyalty, aboveall else, from Hispanic street gang members, and often the Mexican Mafia “used someoneclose to the victim to either approach them oractually carry out the murder.” (15RT 2381-2383.) The next question was: “Has Eme ever used a family memberto carry out a retaliatory murder on Eme’s behalf?” Codefendant Grajeda objected on relevance grounds, which was immediately overruled by the court. Sergeant Valdemar answered: “Yes,sir, they have.” (15RT 2328.) Without objection, Sergeant Valdemar opined that the Mexican Mafia had a “reputation for seeking out witnesses and killing them[,]” so prosecution witnesses assumed that risk by testifying. He also opinedth at wives and relatives of a Mexican Mafia associate would lie for them. When theprosecutor inquiredif there were other “types of relationships” where a witness would lie for a Mexican Mafia memberor associat e, appellant objected on relevance grounds, but the court overruled the objection. Sergeant Valdemarreferred to a case wherea father and son gave contrary testimony about a Mexican Mafia suspect. When the prosecutor asked for Sergeant Valdemar’s opinion whether the Mexican Mafia expected such perjury to be committed, appellant offered the “same” relevance objection. The objection was overruled and Sergeant Valdemar opined that the Mexican Mafia’s expectation appliedto its “soldiers.” (15RT 2385.) 126 B. Appellant’s Claims Were Almost Entirely Forfeited In a capital case, as in any other case, a judgment may not be reversed based on the admission of evidence absent a timely and specific objection in the trial court. (See Evid. Code, § 353; People v. Cain (1995) 10 Cal.4th 1, 28; People v. Champion, supra, 9 Cal.4th at p. 918; People v. Clark (1992) 3 Cal.4th 41, 127-128; People v. Green (1980) 27 Cal.3d 1, 22, fn. 8.) Appellant did not preserve his claim that Sergeant Valdemar’s testimony addressing the extensive crimes committed in jail was inadmissible. Rather, counsel objected afterward, asked for a sidebar, but never asked the court to strike this testimony. Therefore, appellant’s has forfeited this part of his claim. Appellant tries to “bundle”this testimony with subsequent testimony where counsel objected. (AOB 227-228,first indented paragraph.) However, appellant’s objection did not apply retrospectively to the subject evidence, and thus wasnotpertinent to the initial testimony. Appellant did not object to Sergeant Valdemar’s testimony that he personally overheard Mexican Mafia meetings, recorded on audio and video, where murder and drug dealing was discussed. Appellant only objected to the prior question asking, without regard to personal observation, what crimes were discussed during Mexican Mafia meetings. The court sustained this initial objection on the ground it was too broad and thus not relevant. If appellant’s counsel believed that expert testimony about personal knowledge of Mexican Mafia meetings was objectionable, he had a duty to raise this groundin the trial court, but failed to make any objection whatsoever. Since thetrial court sustained the first objection, appellant cannot show that another objection would have beenfutile. Accordingly, appellant has forfeited any claim pertaining to this part of Sergeant Valdemar’s testimony. 127 Codefendant Grajeda’s objection to opinion testimony about the history of the Mexican Mafia did not preserve appellant’s claim on appeal. Appellant asserts that his counsel “implicitly seconded”the objection, but fails to explain how this was done. (AOB 288,fn. 72.) Anyway, “ee [elenerally, failure to join in the objection or motion of a codefendant constitutes a waiverofthe issue on appeal.’” (People v. Wilson (2008) 44 Cal.4th 758, 793, quoting People v. Santos (1994) 30 Cal.App.4th 169, 180, fn. 8.) However,“[a] litigant need not object, however, if doing so would be futile.” (People v. Wilson, supra, 44 Cal.4th at p. 793) Here, appellant did not join in codefendant Grajeda’s objection, even though the court held a side-bar hearing, so he cannot complain that his obj ection would have “futile” because “trial court overruled the objection before [appellant] h ad a chanceto join[.]” (Peoplev. Gamache (2010) 48 Cal.4th 347, 373.) Moreover, during that sidebar, codefendant Grajeda’s counsel admitte d that there were no previous objectionsto “previous questionsthat the s treet gangsare in fact controlled by Eme[.]” (15RT 2358-2358.) App ellant’s counsel implicitly accepted this assessment because he did nothing to dispute itwhile at side-bar. (ISRT 23 59-2360.) For these reasons, this part of appellant’s claim wasforfeited. Appellant failed to object to the question: “Has Eme ever used a family memberto carry outa retaliatory murder on Eme’s behalf?” However, codefendant Grajeda’s objection on relevance grounds was immediately overruled, so appellant’s failure to object might have bee n futile. (1SRT 2328.) Nonetheless, codefendant Grajeda only objected on relevance grounds,soall other state or federal constitutional claims wer e forfeited, even assumingthat appellant’s relevance claim was preserve d for review. Moreover, appellant’s objectionto evidence of “other types” of relationships involving perjury was also based on relevance, so any additional state or federal constitutional grounds were forfeited. Even if 128 appellant’s counsel had suggested any other groundbesides relevance, he failed to ask the court to make any rulings. (See People v. Kaurish (1990) 52 Cal.3d648, 680 [failure to pursue ruling has sameeffect as failure to make objection].) | Moreover, counsel made no federal constitutional objection at all to the gang expert’s testimonyin thetrial court, so his federal claims oferror were entirely forfeited. (See People v. Riley (1992) 2 Cal.4th 870, 891 [objection under Evidence Code section 352 does not preserve due process or confrontation issues]; People v. Rudd (1998) 63 Cal.App.4th 620, 628- 629 [collecting this Court’s cases holding that “constitutional objections must be interposed before thetrial judge in order to preserve such contentions for appeal”].)°” ~C. The Trial Court Acted within Its Broad Discretion Because gang evidence can be highly inflammatory,“trial courts should carefully scrutinize suchevidence before admitting it.” (Peoplev. Champion, supra, 9 Cal.4th at 922.) But where the evidenceisrelevantto explain the circumstances and motivation for a crime,it is admissible. (Id. at pp. 922-923; see also People v. Sandoval (1992) 4 Cal.4th 155, 175 >? In People v. Partida (2005) 37 Cal.4th 433-438, this Court redefined the forfeiture doctrine. Consistent with prior decisions, this Court held that an objection to evidence under Evidence Code 352 does not preserve a due process claim that the evidence for reasons other than those articulatedin his section 352 argument. This Court added, however, the defendant may makea “very narrow due process argumenton appeal,i.e., | the asserted error in admitting the evidence overhis section 352 objection had the “additional legal consequencesofviolating due process,” Partida does not allow appellant to raise new constitutional claims based on the alleged violation of other constitutional rights. (See, e.g, People v. Huggins (2006) 38 Cal.4th 175, 240-241 & fn. 18 [objection to evidence on grounds of Sixth, Eighth and Fourteenth Amendments did not preserve objection under Fifth Amendment, citing Partida].) 129 [gang evidence properly admitted because shooting was committed as part of gang “turf battle”]; see also People v. Hernandez (2004) 33 Cal.4th 1040, 1048 [“evidence of gang membership is often relevantto, and admissible regarding, the charged offense. Evidence ofthe defendant’s gangaffiliation-including evidenceofthe gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like-can help prove identity, motive, modus operandi, specific intent, means of applying force orfear, or other issues pertinentto guilt of the charged crime.”’].) Appellant has failed to show that the challenged evidence was irrelevant or inadmissible under Evidence Code section 352. Under that section, a trial court enjoys broad discretion in makingits determination, and its ruling will not be disturbed on appeal absent an abuseofdiscretion. (People v. Rodrigues(1994) 8 Cal.4th 1060, 1124-1 125.) Here, the entire context and motivation of the double homicides were gang-related, The Mexican Mafia put Acosta and Dunton onthe “greenlight”list for the failure to pay taxes, and appellant, who wasreputedly a tax collector, killed them for the Mexican Mafia. Thus, such evidence washighly relevant to motive, and crucial to understanding the context of the double homicide, where otherwise it appeared that appellant inexplicably executed two friends over a dispute about “taxes” or “rules.” In addition, appellant performed the executions in front of codefendant Grajeda, a Mexican Mafia member, even though they werenotfriends; so the jury needed to understand the complex rules of the Mexican Mafia byall those involved in the double homicide which were being followed. The expert testimony as to violentactivities of the Mexican Mafia, and its history, helped explain why appellant would comply with Mexican Mafia orders. The history showsthat the Mexican Mafia was a criminal enterprise run by a relatively small group of powerful inmates. The in-custody crime by Mexican Mafia 130 - inmates showsthat this powerful prison gang was capable of murdering peopleinside and outside ofprison. oe | The challenged testimony wasnot unduly prejudicial, in the sense that it was not inflammatory in the context of the case.” (See People v. Kipp, supra, 26 Cal.4th at p. 1121 [for purposes of Evidence Codesection 352, “prejudicial” is not synonymous with “damaging,” but refers instead to evidence that “uniquely tendsto evoke an emotionalbias against defendant” without regard to its relevance on material issues].) Given the very violent nature of appellant’s crimes, it was not uniquely bias-inducing for the jury to hear aboutthe history,activities, relationships, and methods of the Mexican Mafia. (See People v. Champion, supra, 9 Cal.4th at p. 921 [gang evidence probative as to identity properly admitted over Evidence Codesection 352 objection].) . Appellant has failed to show any constitutional violation. Non- arbitrary application of the rules of evidence does not ordinarily infringe on a defendant’s federal constitutional rights. (See Rock v. Arkansas (1987) 483 U.S. 44, 56 [107 S.Ct. 2704, 97 L.Ed.2d 37]; Chambers v. Mississippi *° Appellant references communications between the court and the jury, where jurors expressed concern fortheir safety. (AOB 229-230, 242.) The jury’s concern wasvalid, and in no way supports appellant’s claim. (See People v. Valdez (2012) 55 Cal.4th 82, 106 [witness identification properly withheld from defense in a case based largely on evidencethat the Mexican Mafia had ordered the homicide, posed an extreme dangerto governmentwitnesses, had an excellent intelligence network and, before approving a contract to kill a witness, demanded documentation identifying an individual as a government witness].) In any event, the court told the jury not to be concerned and took measuresto ease the jury aboutits safety. (15RT 2386-2387, 2391; 29RT 4332, 4335.) Also, the court instructed the jury not to be biased or prejudiced against appellant. (3CT 871.) Thereis no showing the juror’s safety concerns affected their verdicts, especially where thejury did not convict appellant on all counts, and foundnottrue the personal use of a firearm allegation for Luna’s murder. 131 (1973) 410 U.S. 284, 295 [93 S.Ct. 1038, 35 L.Ed.2d 237].) In particular, anEvidence Codesection 352 determination is a judgment call that is “unquestionably constitutional.” (See Montana v. Egelhoff(1996) 518 US. 37, 42 [116 S.Ct. 2013, 135 L.Ed.2d 361].) The admission of evidence may violate due process only ifit is so prejudicial as to renderthe entiretrial fundamentally unfair. (Estelle v. McGuire (1991) 502 U.S. 62, 67-72 [112 S.Ct. 475, 116 L.Ed.2d 385].) For the reasons explained above, appellant’s constitutional claimsalso fail. | D. Any Alleged Error Was Harmless To the extent the court erred in allowingthe challengedtestimony, the: error was harmless undereither the state or federal standard. (See Chapmanv. California, supra, 386 U.S. at p. 24 [reversal based on federal constitutional error not warrantedif error is harmless beyond a reasonable doubt]; People v. Watson, supra, 46 Cal.2d at p. 836 [reversal based on state law error warranted only whenit is reasonably probable a result more favorable to the appealing party would have been reached in the absence o f the error].) The portions of Valdemar’s testimony challenged by appellant could not have been prejudicial because, as previously discussed abovein ArgumentIII, there was overwhelming evidence that appellant was guilty of murdering Acosta and Dunton. All of appellant’s crimes were violent and despicable, so hearing about the Mexican Mafia when comparedto appellant’s own violent conduct. Asalso explained abovein Arguments I, II, andIII, appellant’s convictions were supported by strong evidence. Accordingly, appellant eighth claim on appeal should be rejected. 132 IX. APPELLANT’S CRAWFORD CLAIM WASFORFEITED BECAUSE HE FAILED TO OBJECT BASED ON THE SIXTH AMENDMENT; ACOSTA’S NOTE WAS NOT TESTIMONIAL AND THEREFORE WAS ADMISSIBLE UNDER CRAWFORD; AND IN ANY CASE, THE ALLEGED ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT Appellant’s ninth claim on appealis that the trial court’s admission of a note left by Acosta to his wife in the pages of a family Bible violated Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177]. (AOB 250-259.) This claim wasforfeited, lacks merit, and any alleged error was harmless. A. Relevant Proceeding Acosta’s wife, Witness Five, had a Bible which she kept in her bedroom dresser. Acosta and his wife left notes for each otherinsidethis Bible. Five daysafter Acosta was killed, Witness Five discovered a handwritten note from Acosta left between the pages of their Bible. Acosta signed the note and also wrote downhis full name, his address, and his nickname, “Spider.” (16 RT 2521-2522.) According to Acosta’s wife, Acosta did not normally sign his notes with so much information, and the fact that he did so meant that the content of the note was “something serious” and “meanta lot.” After finding the note, Witness Five turned it over to the detectives investigating Acosta’s death. (16 RT 2522-2523.) The handwritten note was dated “6-30-99,” and stated: Tuesday morning Mondaynite [sic] 1.20 Went to meet Shady La Rana don’t like the meeting at Big Hueros. Robert Acosta Spider (3CT 659, 672.) 133 Codefendant Grajeda sought to exclude the note on the groundsthat: (1) it was hearsay and there was no applicable exception to the hearsay rule; (2) it should be excluded undersection 352; and (3) it should be excluded ‘under the Truth-in-Evidence provision of California Constitution articleI, section 28. GCT 653-658.) The prosecution filed a memo of law regarding the admissibility of Acosta’s note. (3CT 663-672.) At a hearin g on the motion,the trial court stated it had read and considered code fendant Grajeda’s motion and the prosecution’s response. The courtreiterated th at codefendant Grajeda sought exclusion because the note was hearsay, inadmissible under Evidence Code section 1250, and prejudicial unde r Evidence Codesection 352. (8RT 1257-1258.) At the court’s in vitation for additional argument, codefendant Grajeda expressed his concern t hat the note was forged and could not be authenticated. (8RT 1258-1261 .) Appellant objected for the first time, and stated that “‘in additi on to what [co-defendant Grajeda] has cited in his moving papers,” appellant’s “biggest concern and biggest problem”was authenticating the note. Appellant expressed his belief that the note was “very very suspicious.” (8RT 1261.) Appellant ultimately argued that the note was either forged or fabricated, and should be excluded under Evidence Code section 352. (8RT 1262.) The prosecution argued that Acosta’s note would be authentica ted by Acosta’s wife. (8RT 1263.) Appellant argued that the prose cution should have to establish the foundation for admissibility before the not e was admitted at trial. (3RT 1264.) The court found that: (1) the note was authenticated by Acosta’s wife, and further authenticated by it s discovery at Acosta’s home; (2) the note was admissible hearsay under Evid ence Code section 1250; and (3) admission of the note was not prohibited by Evidence Code section 352. (8RT 1265-1269.) 134 B. Appellant’s Claim Was Forfeited Because He Failed to Object to the Admission of Acosta’s Note to His Wife Based on His Sixth Amendment Right to Confrontation Appellant admits that he did not object based on the confrontation clause of the Sixth Amendment. (AOB 251-252.) Indeed, appellant’s failure to object on Sixth Amendment groundsforfeits appellate review of his claim. Last year, this Court reiterated that a defendant’s Sixth Amendmentclaim is forfeited where his objections are based onthe state law grounds. (People v. Riccardi (2012) 54 Cal.4th 758, 827, fn. 33.) This — Court held: Defendant voiced no objection based upon the confrontation clause or due process, and expressed his objections purely on state law grounds, specifically arguing that the evidence wasnot relevant and wasprejudicial under the Evidence Code. These objections “presented legal issues different from those underlying an objection that the admission of testimony would violate the confrontation clause” and, therefore, did not preserve his Sixth Amendmentclaim. (bid, quoting People v. Redd (2010) 48 Cal.4th 691, 732,fn. 19; see People v. D’Arcy (2010) 48 Cal.4th 257, 289-290 [defendant’s failure to object that statement was admitted in violation to the Sixth Amendment forfeits the claim].) Here, appellant objected on the state law grounds of authentication, Evidence Code section 1250, and Evidence Code section 352. Like the defendant in Riccardi, appellant presented legal issues which did not pertain to his Sixth Amendmentrights, and therefore his claim was forfeited. Appellant argues thathis trial was decided before Crawford and Giles v. California (2008) 554 U.S. 353 [128 S.Ct. 2678, 171 L.Ed.2d 488], and therefore an objection based on the Sixth Amendment would have been “futile.” (AOB 252.) This Court has already rejected this reasoning. In Riccardi, the defendant committed murder and other crimes in 1983, 135 abscondedfor eight years, and was eventually arrested andtried in 1991, almost a decade before appellant’s trial. Like appellant herein, the defendant only objected onstate law grounds, and never raised a Sixth Amendment concern. Underthese indistinguishable circumstances,this Court found the defendant’s Crawford claim wasforfeited. This Court should likewise find appellant’s forfeited his Crawford claim. (People v. Riccardi, supra, 54 Cal.4th at 872, fn. 33; see People ve Tafoya (2007) 42 Cal.4th 147, 166 [failure to raise confrontation clause claim at trial forfeits issue on appeal]; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028 [same].) C. Acosta’s Note Was Not Testimonial underthe Sixth Amendmentas Interpreted in Crawford andIts Progeny In Crawford,the high court held than “testimonial out-of-court statements are inadmissibleat trial unless the declarant is unavailable and the defendant had the opportunity to cross-examine the declarant. (Crawford v. Washington,supra, 541 U.S.at pp. 52-54, 68-69.) In Peopl e vy, Lopez (2012) 55 Cal.4th 569, 577, this Court analyzed the “quartet of cases”! from the Supreme Court addressingthe test for determining whether a statementis “testimonial.” From an analysis of these cases, this Court identified a two-part inquiry to determine whetheror not a statement is testimonial — first, the out of court statement must have been made with - some degree of formality or solemnity. (/d. at p. 581.) Second, an out-of - court statementis testimonialonly ifits primary purpose pertains in some fashion to a criminal prosecution. (/d. at p. 582.) “It is now settled in “! The quartet consisted of Crawford, Melendez-Diazv. Massachusetts (2009) 557 U.S, 305 [129 S.Ct. 2527, 174 L.Ed.2d 314], Bulicomingv. New Mexico (2011) 131 S.Ct. 2705 [180 L.Ed.2d 610], and Williamsv. Illinois (2012) 132 S.Ct. 2221, [183 L.Ed.2d 89].) 136 California that a statementis not testimonial unless both criteria are met.” (People v. Holmes (2012) 212 Cal.App.4th 43 1, 438, quoting People v. Dungo (2012) 55 Cal.4th 608, 619, and People v. Lopez, supra, 55 Cal.4th at p. 582.) | a | Here, appellant hasfailed to establish that Acosta’s note to his wife meets the two requirements under Lopez. First, the subject out-of-court statement was not madewith a sufficient degree of formality or solemnity. Acosta was not “‘[a]n accuser who [made] a formal statementto government officers bear[ing] testimony[.] Cal.4th at p. 581, quoting Crawford, supra, 541 U.S. at p. 51.) Rather, (People v. Lopez, supra, 55 Acosta wrote the note to his wife, and not to a law enforcement agent in a formalized manner; so, the note was not testimonial. (United States v. Manfre (8th Cir. 2004) 368 F.3d 832, 838, fn. 1 [a declarant’s statement to family membersis not testimonial].) Moreover, this Court has held that a three-yeat-old’s statement to his aunt wasnot testimonial (People v. Gutierrez (2009) 45 Cal.4th 789, 812), a statementto a friend was not testimonial (People v. Loy (2011) 52 Cal.4th 46, 55), and a statement to a brother-in-law wasnot testimonial (People v. Gonzales (2012) 54 Cal.4th 1234, 1270-1271). Moreover, neither Acosta nor his wife was acting as a police agent. (People v. Letner (2010) 50 Cal.4th 99, 199-120 [“Therefore, the statements in the letters did not constitute ‘testimonial’ evidence as that term has been defined after the United States Supreme Court’s decision in Crawford’|; People v. Geier, supra, 41 Cal.4th at p. 605.) Here, there is no evidence, or reason to believe, that Acosta or his wife were acting as police agents. Second, as discussed above, an out-of-court statement is testimonial only if its primary purposepertains in some fashion to a criminal prosecution. (See United States v: Solorio (9th Cir. 2012) 669 F.3d 943, 952 [statements made out-of-court with a primary purpose other than 137 possible prosecutorial use are nontestimonial”].) Acosta wrote his note before he went to the meeting, and before any charged crime was committed. (16RT 2509-2510, 2517). In his note, Acosta did not claim that appellant, or anyone else, had committed or would commit, any crime against Acosta or anyoneelse. Thus, Acosta’s note wasnot testimonial because it was not an “out-of-court analog[], in purpose and form,ofthe testimony given by a witnessattrial.” (People v. Cage (2007) 40 Cal.4th 965, 984.) a : Moreover, Acosta’s note wasnot “taken primarily for the purpose ascribed to testimony—to establish or prove somepastfact for possible use in a criminaltrial.” (People v. Cage, supra, 40 Cal.4th at p. 984.) Acosta’s primary purpose wasto tell his wife that he went to a meeting met with codefendant Grajedathat he “didn’t like.” (See Peoplev. Blacksher (2011) 52 Cal.4th 769, 818 [“statements of a distraught mother and grandmother to those offering solace completely lacked the ‘formality and solemnity characteristic of testimony”of speaking with the police], | quoting People v. Cage, supra, 40 Cal.4th at pp. 965, 984.) Thus, wh ile Acosta usedhis full name and moniker, hestill wrote the note to hi s wife; so, its primary purpose was providing her with his feelings about the upcoming meeting, and notdescribe past facts for use in a criminaltrial. Furthermore, Acosta’s life was riddled with drug use and sales, so he had every reason to stay away from law enforcement agents. (People v. Cage, supra, 40 Cal.4th at p. 984.) Thus, there was no Crawford violation. — Appellant asserts that statements by the prosecutor during argument support his claim that Acosta’s note was testimonial. (AOB 254-255.) . 42 The note was admitted under Evidence Code section 1250 to prove Acosta’s state of mind about the meeting. Appellant does not dispute that the note was admissible under state law. 138 This assertion is meritless because the prosecutor’s beliefs are not ‘determinative of whether the statement is testimonial under Crawford. Certainly, the prosecution was nor concedingthat the note was testimonial under Crawford, which wasdecided years after the instant trial. The prosecutor described the note as “almost - - the testimony of Robert Acosta from his grave.” (27RT 3851, italics added.) The prosecutor asserted that the note was “very formal” and was “not the kind of note a husband would leave for his wife.” (27RT 3851.) Rather, the prosecutor believed that such a note would have beenleft “with a minister” or with “a confidante.” In any case, regardless of the prosecutor’s views on the formality of the note, leaving a note meant for one’s wife, a religious figure, or a confidante, still does not have the requisite primary purpose of describing a past criminalact for projection. Finally, the prosecutor argued that Acosta wanted to let any reader know that he had authoredthe note, but did not argue that Acosta wrote the note for the police. Accordingly, appellant’s argument should berejected. D. The Alleged Error Was Harmless Beyond a Reasonable Doubt Even assuming a confrontation clause error occurred, it was harmless beyond a reasonable doubt because the jury would have convicted appellant even if Acosta’s note had been excluded. (People v. Geier, supra, 41 Cal.4th at p. 608; see People v. Ledesma (2006) 39 Cal.4th 641, 709; Chapman vy. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705].) As the United States Supreme Court has previously held, violations of an accused’s right to confront witnesses as guaranteed by the Sixth Amendmentare subject to harmless-error analysis under the standard of Chapman,i.e., whether the error was harmless beyond a reasonable doubt. (Neder v. United States (1999) 527 U.S. 1, 18 [119 S.Ct. 1827, 144 L.Ed.2d 35]; Delaware v. Van Arsdall (1986) 475 U.S. 673, 680-684 [106 S.Ct. 139 1431, 89 L.Ed.2d 674].) Here, Acosta’s note did not even mention appellant, and set forth Acosta’s state of mind about meeting codefendant Grajeda. Moreover, the note played only a minor role in proving appellant murdered Acosta and Dunton, and the prosecution presented overwhelming evidence with, or without, Acosta’s note. (See Statement of Facts and Arg . Ill, ante.) Accordingly, appellant ninth claim on appeal should be denied. X. APPELLANT’S CLAIMS ARE FORFEITED BECAUSE HE FAILED TO REQUEST CLARIFYING INSTRUCTIONS; APPELLANT HAS FAILED TO ESTABLISH A REASONABLE PROBABILITY THAT THE JURORS MISCONSTRUED THE COURT’S INSTRUCTIONS REGARDING NOTE TAKING AND READBACK OF TESTIMONY _ AS APPELLANT SUGGESTS; AND, IN ANY CASE, APPELLANT HASFAILED TO ESTABLISH ANY PREJUDICE. Appellant’s tenth claim on appealis that the trial court’s improper and unconstitutional instructions effectively required jurors to take notes, sternly discouraged readbackoftestimony, and prohibited readback of testimony for the first two days of deliberations. (AOB 260-289.) Based on these allegederrors, appellant asserts the court “interfered wi th the jury’s unique and exclusive responsibility and powerto evaluate the credibility of witnesses ....” (AOB 261.) Appellant’s claims sh ould be - denied because each wasforfeited, lacks merit, and caused no prej udice. Appellant’s claims were forfeited because hefailed to request clarify ing instructions addressing the concernsheraisesforthe first time on appe al. Appellant’s claims lack merit because there is no reasonable likelihoo d that the jury misunderstood or misconstrued the court’s instructions as app ellant suggests. In any case,the alleged errors caused no prejudice. A. Relevant Proceedings On December 13, 1999, prior to opening argument, the court instructed the jury on taking notes duringthetrial: Let metalk aboutthatfirst. It’s very very important that you take notesduringthistrial. Those are for your own personal 140 use, not to prove to somebodyelse that what you wrote down wasaccurate but to refresh your ownrecollections of what goes on duringthetrial. You can take notes of any aspect of the case. If you take notes during the opening statementorthe final arguments, understandthatthat is not evidence in the case. The evidence comes from the sworn testimony of witnesses and from physical evidence that’s offered and received during thetrial. . Butif you do not take notes, you will not remember what — went on during thetrial, and the thing that infuriates me the most about jurors is whenthey first go into deliberations andthefirst houror two I get a note sent out saying we want a reread of the testimony of, and then I get a list of witnesses, which indicates to me the jurors didn’t do their job in recording the information that you need to rememberat the endofthistrial. As I’ve indicated, it will be some weeks before the caseis given to you in the guilt phase. You’ve got to be able to rememberthe testimony, and that means you should write down names of witnesses, dates, times, places, things that are said and done. The offenses in this case are alleged to have occurred on four different datesor five different dates, February 25th, May 26th, June 9th, June 10 and July 1, 1997. You’vegotto try to. keep all of this organized in your minds. AndI’ve given this speech many manytimesto jurors, and I sit back and watch 90 percent of them not taking enough notes thinking, oh, well, somebody else will remind meor I will remember everything becausethis is so unusual, I’m going to remembereverything that happens. I know the judge is wrong. I’ve been here 15 years. I know I’m right. You will not rememberif you don’t take notes. Onecaution aboutthat is not to take so many notesthat you’re not watching andlistening as the evidence has been presented. A witness that looks uncomfortable to you may be uncomfortable because that witnessisn’t telling the truth. So you should watch the witness while they’re testifying as well. 141 Don’t have your head buriedin yournotesall the time taking notes, but take a lot of notes to remind yourselves of what happened during thetrial. If you don’t, you’ll have to rely on other people to refresh your memory, and you shouldn’t do that. It should be your own memory that you can recall the things that are important to you. The mainthingis I’m goingto be very discouraged when I sit back and see jurorsjust sitting there with their notes in their laps and they’re looking at the witnesses, and I realizeit’s all going by andit won’t be recorded in your memories because you aren’t trying to take those notes. You’vegot to try to rememberthe evidence that’s been presented. Ill tell you honestly at the end ofthis trial, you will not have beengiven the information that you need to know what will be the key to you to make decisionsin this case. ' We cannotpredict to you the things that are going to make a difference to you in advance. The attorneys will try to do that. It may seem very obvious, butat the end of the trial so often whathappensis the key to the answer that you are asked to give will be somethingthat occurred earlier and nobody flagged it, nobodyput up a red flag saying,listen, people,this is very important. That’s for you to do. You'vegotto pay attention to everything, understandingit may be something minorat theend of the trial that’s really important to you and you didn’t recordit, so you’re going to be asking what happened. SO So take notes. Understand they’re for your own personal use, You’ll leave them on the’seat or under the cushion when you vacate the jury box. The bailiff is in charge of the jury box. Noonewill have access to that information but you. It’s not — something that somebodyis going to spy on, but we'll make sure nobodygets into the jury box to look at your notes. But keep them for your ownpersonal use. . I’m only saying this because I am so exhausted with saying this so many timesto jurors and they don’t take notes. So many of them don’t take any notesat all, and that’s a big mistake. 142 (8RT 1297-1301.) During the guilt phase, the jury was instructed that: During deliberations, any question or request the jury may have should be addressed to the court on a form that will be provided. Please understandthat counsel mustfirst be contacted before a response can be formulated. Ifa readback of testimony is requested, the reporter will delete objections, rulings, and sidebar conferences so that you will hear only the evidence that was actually presented. This may take hours. . During the course ofthis trial, you have been attentive and many of you havetaken notes. Your general discussion ofthe testimony should refresh yourrecollection of the evidence. If thereis still a disagreement among thejurors as to the state of the evidence, we will have the necessary testimony read back to you as soon as possible. Please understandthatit will take time to provide a response to your request. Continue deliberating until you are called back into the courtroom. (3CT 890-891.) Thetrial court also instructed the jury that: The final commentis on read back of testimony. You may find that that’s necessary, but I would not want to hear from you today or tomorrow that you think you’ve discussed everything and there’s a dispute about what the witness actually said. [{] . . . If after a day or two youstill have a disagreementas to what the witness actually said, then put that on the . . . question format _ and tell us what you needto have. If you wantthe entire testimony of the witness read, we’ ll do that. If you wantit selected on a specific topic, we'll do that. We'll give you the direct or cross-examination on that particular topic for that particular witness. But be specific as to what you’d like to have read back to you if that happens, and then any readbackwill start then on Monday. You’ve got some time to look at the exhibits and discuss the evidence. 143 (29RT 4176-4177.) The court instructed the prosecutor and defense counsel to maintain the ability to be in court within an hourof beingcalled. (29RT 4182-4183.) B. Appellant’s Claimsof Instructional Error Were | Forfeited BecauseHeFailed to Request a Clarifying Instruction . In People v. Dennis, this Court held that Dennis had waived his claim that the trial court failed to fully instruct the jurors about taking notes during the trial. This Court stated: The court permitted the jurors totake notes during the guilt and penalty phases ofthe trial. The trial court twice gave the jurors essentially the same cautionary instruction regarding the use of notes. At the conclusion oftrial, the court instructed the jurors that their notes “are your own personalnotes and not for the use of any otherjuror,” andthat if a juror’s notes and memorydiffer, “the reporter’s notes mustprevail.” [Dennis] claimsthe instruction was insufficient. Heasserts the court also should haveinstructed the jurors not to permit their notetaking to distract them from thetrial proceedings, advised them to use their notes only as an aid to their memories, and admonished them notto be influenced by other jurors’ notetaking. [Citations]. [Dennis] failed to request a more complete instruction and therefore waived the point for appeal. Thetrial court has no sua sponte duty to give an instruction regarding use ofjurors’ notes. [Citation.] (People v. Dennis (1998) 17 Cal.4th 468, 537-538.) Likewise, in the instant case, appellant failed to ask the court for any instruction to clarify the concernsheraises for the first time on appeal. For the same reasons, | appellant forfeited his challenge to any instructions regarding the readback of testimony. Accordingly, appellant’s claims were forfeited. 144 C. Appellant Has Failed to Show Instructional Error A reviewing court must determine whetherthere is a reasonable likelihood that the jury misconstrued or misapplied the terms of the challenged instruction. (People v. Thorton (2007) 41 Cal.4th 391, 436, citing People v. Clair (1992) 2 Cal.4th 629, 663; People v. Huggins (2006) 38 Cal.4th 175, 217, citing Middleton v. McNeil (2004) 541 US. 433, 437 [124 S.Ct. 1830, 158 L.Ed.2d 701].) “‘[T]he correctness ofjury instructions is to be determined from theentire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.’” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248, quoting People v. Castillo (1997) 16 Cal.4th 1009, 1016; People v. Whisen (2008) 44 Cal.4th 174, 220 [“weconsider the entire charge to the jury, and not simply the asserted deficiencies in the challenged instruction”’].) In People v. Mayfield, this Court stated: [Mayfield] contends the court erred in failing to caution the jury to pay attention to the trial and not become overly absorbed in note- taking. [Citation.] We note that although thetrial court invited the jurors to take notes, it reminded them simultaneously that they should “keep in mind what you hear during the presentation of the evidence.” Even if this brief comment did not suffice to warn the jurors that they should notlet their note- taking distract them from the task ofjudging defendant, we have explained since [People v. Whitt (1984) 36 Cal.3d 724] the trial court is not required to give such an instruction. [Citation.] (People v. Mayfield (1993) 5 Cal.4th 142, 180; People v. Avena (1996) 13 Cal.4th 394, 423 [trial court is not required to give cautionary instructions regarding note taking].) Here, although the court had no sua sponte duty to caution the jurors about taking notes duringtrial, the court’s instructions were proper, and in no way interfered with the jury’s responsibilities. Rather, the court encouraged the jurors to take notes, based on years of experience 145 overseeingtrials, but never told or implied that each juror was required to take notes. Instead, jurors were told: “You can take notes of any aspect of the case.” The court did not say “must,” “mandatory,” “required,”or any other language which would causeajuror to believe there was no other choice. The court never implied a juror wouldface any repercussions for rejecting the court’s advice to take notes. In fact, the court recognized that the jurors could choose to “not take notes” and observed that “90 percent” ofjurors chose notto take notes even though the court had “given this speech many manytimesto jurors[.]” In fact, the court candidly told these jurors that “{s]o many”other jurors “don’t take notesat all[.]” The fact that the court would be “very discouraged”ifjurors chose not to take notes only furtherillustrates that the court never instructed the jurors, expressly or impliedly, that they were requiredto take notes. To be sure, the court addressed the most obvious reasonfor taking notes: without taking notes there waslittle likelihood that a juror would rememberthetrial or be able to refresh his or her memory ofthetrial. This common-sense observation was particularly applicable to the instant case, involving five homicidesat four different locations, a robbery at afifth location, ten special allegations, and multiple special circumstance allegations. Based on 15 years of experience overseeingtrials, the court properly emphasized that taking notes could assist a juror’s recollection of: the trial, and that the decision notto take notes often affected the number and timing of requests for readback of testimony. Additionally, the court advised taking notes becauseit wasdifficult to predict which parts of the trial will be important during deliberations. In sum,the court gave propercautionary instructions aboutnote taking, even though there is no sua sponte duty to do so. First, the instructions clarified notes were for personaluseto assist recollection of what happenedattrial. Second, the court cautioned taking notes should not 146 prevent the jurors from “watching andlistening as the evidence has been presented” because each juror should use his or her memoryto “recall the things that are important to you.” Third, the court assured that thejury notes would not be accessible to anyone else. Fourth, the court pointed out that jurors could take notes of any aspect of the case, and reminded the jury that “opening statement and the final arguments” were “not evidence in the case.” Finally, the court cautioned that jurors should balance note taking with “watching and listening as the evidence has been presented.” (8RT 1297-1301.) Therefore, contrary to appellant’s novel assertion, the court’s instructions. did not “‘interfere[] with the jury’s unique and exclusive responsibility and powerto evaluate the credibility of witnesses” (AOB 261), send the message that “observation of the witnesses wasnotas important as notetaking” (AOB 273), imply that jurors who did not take notes would have to rely on other jurors’ notes” (AOB 277), or violate appellant’s constitutional rights (AOB 275). Underthe court’s instructions regarding note taking and the numerousinstructions on witnesscredibility, the jurors clearly understood it was their duty to determine the witnesses’ credibility, and the court did not interfere with the jury’s credibility determination. * The trial court told the jurors that without taking notes “you'll haveto rely on other people to refresh your memory, and you shouldn’t do that. It should be your own memorythat you canrecall the things that are important to you.” (People v. Solomon, supra, 49 Cal.4th at p. 823.) 147 D. Appellant Has Failed to Show the Trial Court’s Instruction Regarding the Readback of Testimony Was Erroneous Section 1138” gives jurors, during deliberation,the right to rehear _testimony and instructions on request. (People v. Solomon,supra, 49 Cal.4th at p. 824, citing People v. Frye (1998) 18 Cal.4th 894, 1007.) “It also implicates a defendant’s fairtrial rights.” (Peoplev. Solomon, supra, 49 Cal.4th at p. 1007.) Here, the trial court never prohibited the jury from hearing readback oftestimony. In fact, the trial court told jurors that they could request anypart, or all of, any witness’s testimony. The court asked the jurors to be specific and readback would begin on Monday. The court merely suggested jurorsto discuss the evidence and examinethe exhibits before requesting a readback. (29RT 4176-4177.) The jury was obviously not discouraged to request assistance. After two days of deliberation the jury sent the court a note requested assistance defining first degree murder. (3CT 814.) The following morning, the jury sent a note requesting _ readback. Within an hour the court provided the jury with the readbacki t had requested. (3CT 817.) The next day of deliberations, the court answered. another question from the jury. (3CT 819.) Accordingly, appellant has failed to show any error. 4 Section 1138 states: “After the jury have retired for deliberation, if there be any disagreement between them asto the testimony,or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Uponbeing broughtinto court, the information required mustbe given in the presence of, or after notice to, the prosecuting attorney, and the defendantor his counsel, or after they have beencalled.” 148 E. Any Alleged Error Was Harmless Beyond a Reasonable Doubt A violation of section 1138 is not a basis for reversing a conviction unless prejudice is shown. (People v. Robinson (2006) 37 Cal.4th 592, 634; People v. Jenkins, supra, 22 Cal.4th at p. 1027.) As to any error based on state law, appellant has failed to show a reasonable probability he would have obtained a better result absent the error. (People v. Robinson,supra, 37 Cal.4th at pp. 635-636.) “[I]ndeed, any alleged federal constitutional error [is evaluated by the Chapman] “‘beyond a reasonable doubt’”test[.]” (Id. at p. 636.) There is no indication in the record that the court’s instructions or comments on note taking or readback had any affect on the jury’s deliberations. As discussed above,the jury requested readback, as well as clarifications regarding the jury instructions; so the jury was obviously not discouraged to seek the court’s guidance or the readback oftestimony. | Appellant merely speculates that the jury would have asked for more readback. (AOB 280-281.) In addition, as noted above, the jury was given numerousinstructions on witness credibility (3CT 874-876), and nothing in the challenged instructions superseded the credibility instructions, or underminedthe jury’s credibility determination. Also, the convictions were supported by overwhelming evidence. (See ArgumentsI, II, andIII, ante.) Accordingly, appellant has failed to show a reasonable probability he would have obtained a better verdict, and in this case, any federal constitution error was harmless beyond a reasonable doubt. (People v. Robinson, supra, 37 Cal.4th at pp. 635-636, fn. 21 [rejected claim that error wasstructural].) 149 XI. APPELLANT’S CLAIMS OF JUDICIAL ERROR WERE FORFEITED; THE TRIAL COURT’S COMMENTS DURING VOIR DIRE WERE NOT ERRONEOUS UNDER STATE LAW OR THE - FEDERAL CONSTITUTION; AND, APPELLANT HAS FAILED TO SHOW HE WAS PREJUDICED BY THE ALLEGED ERRORS Appellant’s eleventh claim on appealis that the trial court erroneously and unconstitutionally instructed jurors during voir dire regarding the exchangeoftestimony for leniency, effectively telling jurors that the prosecution’s witnesses were lesser participants in the charged crimes and that appellant and codefendant Grajeda were the “greater culprits.” (AOB 290-308.) This claim should be rejected. Appellant’s state and federal claims wereforfeited by his failure to object to the court’s comments during voir dire. Appellant’s state and federal constitutional claims lack merit because thetrial court’s comments were notjury instructions, and those comments were well-within the court’s broad discretion to conduct voir dire. Finally, appellant has failed to establish he was prejudiced at either theguilt or penalty phases. A. Relevant Proceedings The court asked Prospective Juror 11 about the concept of granting partial immunity, total immunity, or a lesser sentence for a witness, in order to secure that witness’s testimony “against someone else.” (6RT 951.) Prospective Juror 11 told the court that he understood the concept “much better” after the court used the hypothetical situation of two men whorob a bank: one goes in and kills someone, while the other stands outside as a lookout, so the prosecution grants immunity to the lookout in order to convict the shooter. Prospective Juror 11 agreed with the court that: “It would be badthe other way around. . . to grant immunity to the killer to get (the lookout].” (6RT 951.) Later on, the court asked Prospective Alternate Juror 2 whether he understood the concept of granting immunity or giving a lesser sentence to 150 a witness in order to secure his or her testimony. The court reiterated the hypothetical of two bank robbers, where the prosecution lacks enough evidence to bring the shooterto trial, but has such evidence regarding the lookout, so the prosecution gives the lookout immunity in order to prosecute the shooter. (7RT 1096-1097.) Prospective Alternate Juror 2 stated that this was not “fair,” but he did not have “a problem.” The court used the example of two bank robbers, but added that the lookouttold the shooter not to bring a loaded gun, but the shooter did so anyway. Prospective Alternate Juror 2 had no problem “{iJn that case.” (7RT 1097- 1098.) The court reiterated the concept of securing the lookout’s testimony in order to prosecute the shooter, where there was not enough evidenceto bring the shooterto trial without the lookout’s testimony. Prospective Alternate Juror 2 agreed that this “sounded right’ and not “wrong.” (7RT 1098.) B. Appellant’s Claims Were Forfeited “The controlling principle is that a defendant may not challenge on appeal alleged shortcomingsin the trial court’s voir dire of the prospective jurors whenthe defendant, having had the opportunity to alert the trial court to the supposed problem,failed to do so.” (People v. Fuiava (2012) 53 Cal.4th 622, 653; People v. Pearson (2013) 56 Cal.4th 393 [“Preliminarily, defendant’s failure to make a timely and specific objection on the ground he nowraises forfeits the claim on appeal]; People v. Foster (2010) 50 Cal.4th 1301, 1324 [claim that the trial court erroneously defined “ageravating circumstances” forfeited by failure to object during voir dire].) This applies to “comments implyingit believed defendant was guilty of murder[.]” (People v. Seaton (2001) 26 Cal.4th 598, 635; see People v. Mills (2010) 48 Cal.4th 158, 189.) Here, appellant did not challenge the subject comments during voir dire; so any claims premised on state law were forfeited. (People v. Sanchez (1995) 12 Cal.4th 1, 61-62 151 [failure to object to court’s questioning of prospective juror during voir dire forfeits claim].) Nonetheless, appellant now asserts,for the first time, that the trial court undermined the presumption of innocence, aligned itself with the prosecution, vouchedfor witnesses, usurped the jury’s power to determine witnesscredibility, and reduced the prosecution’s burden beyond a reasonable doubt. Healso asserts that these alleged errors violated his rights to a fair trial, an impartial jury, due process of law, andto a reliable determination of guilt at the penalty.(AOB 300-301.) These federal constitutional claims were also forfeited. (People v. Tully (2012) 54 Cal.4th 952, 1066; People v. Howard (2010) 51 Cal.4th 15, 26; Peoplev. Heard (2003) 31 Cal.4th 946, 972, fn. 12 [appellant’s claim of violation of constitutionalrights raised for first time on appeal not preserved for review].) Appellant admits thattrial counsel failed to objectto the challenged comments. (AOB 301, fn. 94.) However, he asserts that no objection was necessary because these comments were, in fact, jury instructions that affected his substantial rights under section 1259. (See People v. Partida, supra, 37 Cal.4th at p. 431.) This characterization is patently erroneous because the court was notinstructing the jury on howto decide the case,it was conducting voir dire of prospective jurors, so the exception to the general forfeiture rule does not apply to appellant’s claim. “Appellant cites to People v. Dunkle , supra, 36 Cal.4th at p. 928, for the proposition that pre-instruction during voir dire is subject to appellate review undersection 1259. Whilethis is true as to jury instructions, the subject commentsin this case were notjury instructions. Dunkle involved a printedpre-instruction regarding the penalty phase distributed to 152 prospective jurors.” (People v. Dunkle, supra, 36 Cal.4th at pp. 928-929.) Thus, Dunkle is inapposite and distinguishable. Moreover, in People v. Romero, supra, 44 Cal.4th at pages 422-424, a case appellant relegates to a footnote (AOB 301, fn. 94), this Court addressed a similar situation. In Romero, during voir dire, the court made “brief” comments about the nature of aggravating and mitigating circumstances.*© This Court rejected the defendant’s claim that these comments were jury instructions, stating: Defendant arguesthat the trial court’s comments, which he mischaracterizes as jury instructions, were biased and misled the jury because they did not include a statementthat mitigation includes any other circumstance that extenuates the gravity of the crime. (§ 190.3, factor (k).) Thetrial court, however, was “> The preprinted instruction stated: “Tn the penalty phase ofthe trial both counsel are permitted to introduce mitigating and aggravating evidence about the defendant. Aggravating circumstances may involve other badacts, different from the offense(s) charged. Mitigating circumstances could be psychiatric testimony or other sympathetic factors in a defendant’s life. If you[ ] are selected as a juror in this case you must, by law, consider these mitigating and aggravating factors along with the facts of the case in makinga decision about the penalty to be imposed.” (People v. Dunkle, supra, 36 Cal.4th at p. 928.) “© This Court observed: In its comments to the second panel, the court stated, “And the court will give you a rather exhaustive list, if we ever get to that point.” In addition, during the voir dire of a prospective juror : on the second panel, the trial court commented: “You have to weigh the bad things, serious things about the case, versus the mitigating factors, the things that make the crime perhaps less blameworthy or good things about the defendant’s background.” (People v. Romero, supra, 44 Cal.4th at p. 423.) 153 not instructing the jury at the time it made the commentsin question. Indeed it was conducting voir dire of prospective jurors. Its comments were not intendedto be, and werenot, a substitute for full instructions at the endoftrial. [Citation.] The purpose of these comments was to give prospective jurors, most ofwhom hadlittle or no familiarity with courts in general and penalty phase death penaltytrials in particular, a general idea of the nature of the proceeding. [Citation.]. (Id. at p. 423, internal quotations omitted, italics added.) Likewise, in the instant case, the trial court comments were neither jury instructions nor intended to be jury instructions. Therefore, every aspect of appellant’s claim wasforfeited by his failure to object. C. Applicable Law Recently, this Court stated: Trial courts possess broad discretion over both [d]ecisions concerning the qualifications of prospective jurors to serve and the manner of conducting voir dire. Indeed, decisions of the United States Supreme Court in this area have madeclear that the conductof voirdire is an art, not a science, so [t]here is no single wayto voir dire a juror. The Constitution... does not dictate a catechism forvoir dire, but only that the defendant be afforded an impartial jury. (People v. Whalen (2013) 56 Cal.4th 1, 29-30,all internal citations and quotations omitted.) While a trial court “must [obviously] control voir dire examination[,]’” the court “‘must remain neutral’” and “‘mustnot | proselytize [or] indicate its views ofthe “right” or “wrong” answers to voir dire questioning.’”(/d. at 30, quoting State v. Papasavvas (2000) 163 N.J. 565, 585.) “IT]he adequacyofvoir dire is not easily subject to appellate review. Thetrial judge’s functionat this pointin thetrial is not unlike that ofjurors later on in thetrial. Both must reach conclusionsas to impartiality and credibility by relying on their own evaluations of demeanor evidence and of responses to questions.” (People v. Whalen, supra, 56 Cal.4th at p. 30, 154 internal quotations omitted, quoting People v. Holt (1997) 15 Cal.4th 619, 661, quoting Mu’Min v. Virginia (1991) 500 U.S. 415, 424 (111 S.Ct. 1899, 114 L.Ed.2d 493].) “(The exercise of discretion by trial judges with respect to the particular questions to ask and areas to coverin voir dire is entitled to considerable deference by appellate courts.” (People v. Taylor (1992) 5 Cal.App.4th 1299, 1313; see People v. Cleveland (2004) 32 Cal.4th 704, 737 [courts have broad discretion in deciding what questions to ask on voir dire]; cf. People v. Carasi (2008) 44 Cal.4th 1263, 1325 [trial court’s discretion is “not limitless”].) “For these reasons, the court’s manner of conducting voir dire will not be disturbed on appeal unlessit renders the trial fundamentally unfair.” (People v. Whalen, supra, 56 Cal.4th at p. 31, citing People v. Carter, supra, 36 Cal.4th at p. 1250, and MwMin v. Virginia, supra, 500 U.S. at pp. 425-426.) D. Appellant’s Claim Lacks Merit Thetrial court acted well-within its discretion during voir dire. There — wasno error, as the court was trying to explain a pertinent issue using a hypothetical situation and did nottell jurors how to decide this issue or any other issue. The court’s explanation about leniency was not unreasonable, erroneous, or controversial, as it is almost a matter of common knowledge that prosecutors obtain assistance of witnesses by offering leniency or immunity if the witness was somewhatinvolvedin the case. It would also be clear to any juror that a prosecutor’s choice ofwho deservesleniencyis a judgmentcall of the prosecutor. As appliedto the facts of this case, the jury would certainly know,regardless of the court’s remarks, that the prosecutor’s theory was that appellant was the killer and that Witness One 155 wasa lesser player in the Escareno homicide.’” Witness Onedid not believe’? he would be prosecuted for the Escareno homicide, and received the promiseofpolice protection duringtrial, relocation aftertrial, and a $30 daily per diem. (19RT 2910-2912; 22RT 3323-3324.) In addition, the brief exchanges upon which appellantrelies were a miniscule part of the voir dire, which involved hundreds of prospective jurors. (3CT 679, 683-689.) Voir dire for alternate jurors continued. (3CT 690.) On December 10, 1999, four alternate jurors were selected. (3CT 691-692.) The object exchanges werenotjury instructions,let alone instructionsthatall the jurors were required by law to assumethat prosecution witnesses were “lesser participants”in the charged crimes and that appellant and codefendant Grajeda were the “greater culprits.” (AOB 294-301.) Instead, as noted above,the challenged comments involved hypotheticals to explain a pertinent issue and to obtain the general views of prospective jurors. on the issue. Furthermore, the jury received several instructions which madeclear that the trial court was merely using a hypothetical during voir dire and was not instructing the jury at that time. The guilt phase instructions included CALJIC Nos.2.20 (believability of witness), 2.21.1 (discrepancies in testimony), 2.21.2 (witness willfully false), 2.22 (weighing conflicting testimony), 2.24A (witness in fear), 2.23 (believability of witness— *7 Appellant also claims the court’s comments encompassedsituations where the prosecution witness was nota participant to the charged crimes. (AOB 304-305.) This claim makeslittle sense. If a witness is not an accomplice, he cannot be the “greater” or “lesser” culprit for the charged crime. 48 Witness One was not granted full immunity, partial immunity, or a lesser sentence for the Escareno murder, andtestified with the knowledge that he would incriminate himself in Escareno’s murder. 156. conviction ofa felony’’), and (3.10, 3.11, 3.12, 3.14, 3.16, and 3.18 (instructions addressing accomplice testimony). (3RT 874-877.) These instructions told the jury to evaluate and determine witness credibility and were not superseded or modified by the court’s comments during voirdire. Here, as explained above, nothing in the voir dire told the jury how to decide the case. Thus, appellant has failed to that he did not have an impartial jury, at either the guilt or penalty phaseofthe trial. The fact that the jury failed to convict appellant asto the Escareno crimes, despite the testimony of his accomplice, unquestionably showsthat challenged comments did not direct, interfere, or otherwise effect the jury’s determinationas to the credibility as to the credibility of accomplices to appellant’s crimes. Underthese circumstances,“{appellant] has not established that the trial court’s comments or the prospective jurors’ responsesto thetrial court’s questions negatively affected any prospective juror.” (Peoplev. Pearson, supra, 56 Cal.4th at p. 420.) Thus, “[v]iewing the voir dire record as a whole,[it] cannot be sa[id] that the voir dire was inadequate andthat the resulting trial was fundamentally unfair.” (People v. Robinson (2006) 37 Cal.4th 592, 613.) Appellant’s claims of constitutional error, although forfeited, should be denied as well. “The right to voirdire, like the right to . peremptorily challenge [citation], is not a constitutional right but a meansto achieve the end ofan impartial jury. [Citation.]” (People v. Fuiava, supra, 53 Cal.4th at p. 654; internal quotations omitted, quoting People v. Carter, supra, 36 Cal.4th at pp. 1250-1251.) Thus, appellant has failed to show that he did not have an impartial jury, at either the guilt or penalty phase ofhistrial. Accordingly, ” Witness One admitted he was convicted of bank robbery aboutthee decades before appellant’s trial. 157 appellant’s eleventh claim on appeal should be denied because appellant’s claims wereforfeited, lack merit, and caused no prejudice. XT. APPELLANT HASFAILED TO ESTABLISH THAT THE TRIAL Court ERRED BY GIVING CALJIC No.8.71, AND BY FAILING TO GIVE CALJIC No.17.11; AND, IN ANY CASE, THE ALLEGED ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT Appellant’s twelfth claim on appealis that the CALJIC instructions defining the process by whichjurors reach a verdict on the lesser offense of second degree murder and the court’s failure to instruct the jury with CALJICNo. 17.11 unconstitutionally skewed the jurors’ deliberations towardsfirst degree murder. (AOB 309-320.) This claim should be rejected. There was no reasonable likelihood that the jury misconstrued the court’s instructions as appellant suggests, and the alleged error was harmless beyond a reasonable doubt. A. Relevant Proceedings The jury was instructed with CALJIC No.8.70, whichstated: “Murderis classified into two degrees. If you should find the defendant guilty of murder, you must determine and state in your verdict whether you find the murderto be ofthe first or second degree.” (3CT 884-885.) The jury wasthen instructed with the 1996 version of CALJIC No. 8.71°, which provided: . If you are convinced beyonda reasonable doubt and unanimously agree that the crime of murder has been committed by a defendant, but you unanimously agree that you have a °° This instruction, prior to the 1996revision, stated: “If you are convinced beyond a reasonable doubtthat the crime of murder has been committed by a defendant, but you have a reasonable doubt whether such murder was ofthe first or of the second degree, you must give defendant the benefit of that doubt and return a verdict fixing the murder as of the second degree.” (Italics added.) 158 reasonable doubt whether the murder wasofthefirst or of the second degree, you must give the defendant the benefit of the doubt and return a verdict fixing the murder as of the second degree. (29RT 4151-4152; 3CT 885, italics added.) The jury received other relevant instructions. These instructions included CALJIC No.8.74, which provided: - Before you may return a verdict in this case, you must agree unanimously not only as to whether a defendantis guilty or not guilty, but also, if you should find him guilty of an unlawful killing, you must agree unanimously as to whether he is guilty of Murderin the First Degree or Murder in the Second Degree. (29RT 4152; 3CT 885, italics added.) The relevant parts of CALJIC No. 17.40 stated: “The People and the defendantare entitled to the individual opinion of each juror. [§] ... Each of you must decide the case for yourself”and should not “decide any question in a particular way because a majority ofthe jurors, or any of them,favorthat decision.” (3CT 891; 27RT 4152.) Asto the special circumstance allegation, the jury wasinstructed: If you find a defendant in this case guilty of murder of the first degree, you must then determine if one or more of the following special circumstances: is true or not true: Multiple Murderas to both defendants and Murder during the perpetration of Robbery or Kidnapping as to [appellant]. The People have the burden ofproving the truth ofa special circumstance. Ifyou have a reasonable doubtas to whether a special circumstanceis true, you mustfind it to be not true. If you are satisfied beyond a reasonable doubtthat a defendantactually killed a human being, you need notfind that the defendant intendedto kill in order to find the special circumstance to be true. 159 You must decide separately as to each of the defendants the existence or nonexistence of each special circumstance allegedin this case. If you cannot agree as to both defendants, but can agreeas to one of them, you make yourfinding asto the one upon which you do agree. You must decide separately each special circumstance alleged in this case. If you cannot agree asto all of the special circumstances, but can agree. as to both defendants, you must make yourfinding as to the one or more of them upon which you do agree. In ordertofind a special circumstanceallegedin this case to be true or untrue, you must agree unanimously. (3CT 887, italics added; 27RT 4159.) Finally, the jury was instructed that: “To find the special circumstance, referredto in these instructions as Multiple Murder convictions, is true, it must be proved: A defendant has in this case been convicted ofat least one crime of Murderofthe First Degree and one or more crimes of Murderofthe First or Second degree.” (3RT 887-88 8; - 27RT 4160.) B. Appellant Has Failed to Establish Instructional Error In People v. Pescador (2004) 119 Cal.App.4th 252, the defendant argued that the 1996 version of CALJIC No. 8.71 — the instruction gi ven in this case — ’force[d] individual jurors who had a reasonable doubtas to the degree of murder” to conclude that they could not individually give the defendantthe benefit of that doubt, unless “the jury collectively and unanimously agree[d] upon the existence of reasonable doubt.” (dd.at p . 256.) The court of appealrejected that assertion. In so holding, the co urt first observed that, when assessing the correctnessofjury instructions, the court reviewsall of the instructionsgiven, rather than considering only “parts of an instruction or...a particular instruction.” (Jd.at p. 257.) 160 The court then noted that the defendant’s proposed interpretation of the challengedinstructions flew “in the face of CALJIC Nos. 17.11 and 17.40.” (People v. Pescador, supra, 119 Cal.App.4th at p. 257.) CALJIC No. 17.11 specifically informed the jurors that if they had “a reasonable doubt” regarding the degree of murder, the jurors must give the defendant the benefit of that doubt and “find him guilty of that crime in the second degree.” ([bid.) CALJIC No. 17.40 further instructed the jurors that the prosecution and defense were “entitled to the individual opinion of each juror,” that each juror must“decide the case” for himself, and that a juror should “not decide any question in a particular way because a majority of the jurors, or any of them, favor that decision.” (Ibid.) Finally, the jurors were directed to all the others.’” (/bid.) [c]onsider the instructions as a whole and eachin light of The Pescador court concludedthat, in“light of the instructions as a whole,” it was not reasonably likely that the jury interpreted CALJIC No. 8.71 “as requiring them to make a unanimousfinding that they had reasonable doubt as to whether the murder wasfirst or second degree.” (People v. Pescador, supra, 119 Cal.App.4th at p. 257.) For the same reasons, Pescador also found that “CALJIC No. 8.72, when considered in context with CALJIC Nos. 8.50 [explaining difference between murder and manslaughter], 17.11, and 17.40, did notinstruct the jury thatit - had to make a unanimousfinding that they had a reasonable doubt as to whether the crime was murder or manslaughter in order for defendant to receive the benefit of the doubt.” (Ibid.) Following Pescador, the validity of CALJIC No. 8.71 was again considered in People v. Gunder (2007) 151 Cal.App.4th 412. There, as in Pescador, the defendant arguedthat the instruction violated his due process rights because it purportedly “condition[ed] any juror’s decision in favor of 161 second degree murder on the unanimous agreementofthe jurors that a doubtexists as to degree.” (/d. at pp. 424-425.) The Gunder defendant also asserted that Pescador was inapposite, because the Pescadorjury, unlike his jury, was given CALJIC No.17.11, the instruction stating that if there was a reasonable doubtasto the degree of murder, the defendant was to be given the benefit of that doubt. (Jd. at p. 425.) The Gunder court concluded that the foregoing distinction was immaterial, stating: Wedisagreethatthis is a crucial distinction. If indeedit were reasonablylikely that CALJIC No. 8.71 communicated the need for the procedural prerequisite of a unanimousfinding of doubtas to degree,the parallel pattern instruction [CALJIC No. 17.11] does not refute this any moredirectly than the instruction on the duty to deliberate individually. It is mere icing on the cake. Whatis crucial in determining the reasonablelikelihood of defendant’s posited interpretation is the express reminderthat each juror is not boundto follow the remainder in decision making. Oncethis principle is articulated in the instructions, a reasonable juror will view the statement about unanimityin its proper contextofthe procedure for returning verdicts, as indeed elsewhere the jurors are told they cannot return any verdict absent unanimity and cannot return the lesser verdict of second degree murderuntil the jury unanimously agrees that the defendantis not guilty of first degree murder. Thus, nothing in the instructionis likely to prevent a minority ofjurors from voting against first degree murder and in favor of second degree murder. (Ud. at pp. 827-828.) Here, as in Pescador and Gunder, the totality of the instructions clearly informed the jurors not to forsake their individual opinions when considering appellant’s guilt or innocence. Like the juries in Pescador, the jury in this case was instructed that both the People and the defendant were “entitled to the individual opinion ofeach juror,” and that each juror must “decide the case” for himself or herself, and that a juror should “not decide any question in a particular way because a majority of the jurors, or any of them, favor that decision.” (CT 891.) Likewise, the jurors were further 162 ee directed to the others.’” (3CT 871.) [c]onsider the instructions as a whole and eachin lightofall Appellant nevertheless seeks to distinguish Pescador, claimingthat, unlike the circumstances in Pescador, his jury was not given CALJIC No. 17.11, the instruction directing the jury to give the defendant the benefit of the doubt and find him guilty of second degree murderif it could not decide the degree of the murder. (AOB 311-315.) Here, even though the jurors were not instructed with CALJIC No. 17.11, Gunder aptly notes that CALJIC No. 17.11 “is mere icing on the cake,” and that the “crucial” instruction is CALJIC No. 17.40 which expressly reminds jurors that they are “not boundto follow the remainder[of other jurors] in decision making.” (People v. Gunder, supra, 151 Cal.App.4th at pp. 827-828.) In People v. Moore, the defendant’s jury was instructed with CALJIC Nos. 8.71. and 8.72, as well as CALJIC 17.40. After discussing Pescador and Gunder, this Court concluded that“the better practice is not to use the 1996 revised version[] of CALJIC No[]. 8.71[], as the instruction[] carr[ies] at least some potential for confusing jurors aboutthe role oftheir independent judgmentin deciding betweenfirst and second degree murder[.]” (People v. Moore (2011) 51 Cal.4th 386, 411.) This instruction was “unnecessary” becausethe jury wasinstructed with CALJIC No.8.75. (Ibid.) In the instant case, this Court should rely on Gunder and find no instructional error occurred below because the jury wasinstructed with . CALJIC Nos. 8.74 and 17.40, which cured any ambiguity in CALJIC No. 8.71. Should this Court decline to address the merits of the claim in this case, as it did in Moore, then as in Moore,the alleged error should be found harmless beyond a reasonable doubt. In Moore, this Court found that the alleged error was harmless beyond a reasonable doubt becausethe jury found felony-murder circumstancestrue for both alleged murders, and 163 therefore second degree murder was a “not legally available verdict[.]” (People v. Moore, supra, 51 Cal.4th at p. 412.) Here, the jury foundthat appellant had committed the Patel murder during a robbery and kidnapping. (3CT 837-839.) The jury found Luna’s murder wasin the first degree, but rejected the robbery charge;thus, the jury convicted him offirst degree murder based on premeditation. The Acosta and Dunton murders were also foundto bein thefirst degree based on premeditation. The jury also found appellant committed multiple murders. (3CT 844.) As in Moore, the jury’s verdict as to Patel was necessarily first degree murder based on the felony murderallegation so “the challenged instructions, therefore, could not have affected the jury’s - verdict[]” as to Patel’s murder. (People v. Moore, supra, 51 Cal.4th at p. 412.) Moreover,there is no doubt that the Acosta and Dunton homicid es were committed in the first degree, as discussed above in ArgumentIV. The Lunahomicide wasalso supported by overwhelming evidence that the murder was committed in the first degree, as discussed above in Argument I. Also, aside from speculation, there was no showing that, despite th e overwhelming evidence of premeditation, any juror had a doubtasto the degree of the Luna, Acosta, and Dunton murders. Furthermore, even thoughthe jury did not find the Luna, Acosta,or Dunton murders were based on the felony-murder,this is immaterial based on the other verdicts. The jury found that Luna, Acosta, and Dunton had been murdered. Andthe jury wasinstructed that multiple murder convictions are present when: “A defendanthasin this case been convicted of at least one crime ofMurderofthe First degree and one or more crimes of Murderofthe First degree or Second degree.” (3CT 888,italics added.) Thus, even assuming that some jurors had doubtas to whether the Luna, Acosta and Dunton murders were inthe first degree, the multiple murder special circumstance would not be affected by this doubtor the alleged 164 error. Therefore, any instruction error could not affect either of these special circumstance findings by the jury. For these reasons, and error was harmless beyonda reasonable doubt. (See People v. Moore, supra, 51 Cal.4th at p. 412.) Finally, appellant also claims that the purported instructional deficiency constituted astructural error requiring reversal of his conviction. (AOB 317-318.) Appellant is incorrect because this Court has already rejected this claim. In People v. Moore, this Court applied the Chapman standard when adjudicating the same issue. Also, instructional errors are usually evaluated under Chapmanifthere is a constitutional violation. (Neder v. United States (1999) 527 U.S. 1, 15-20 [119 S.Ct. 1827, 144 L.Ed.2d 35]; People v. Wilkins (2013) 56 Cal.4th 333, 348-349; People v. Flood (1988) 18 Cal.4th 470, 487-490.) Needless to say, Sullivanv. Louisiana’, cited by appellant (AOB 317-318), is easily distinguishable as it involved the wrong reasonable doubt standard. Moreover, as discussed in ArgumentsI, II, and III, each conviction was supported by strong evidence and, therefore, any instructional error was harmless beyond a reasonable doubt. XIII. APPELLANT FORFEITED HIS CONSTITUTIONAL CHALLENGES TO CALJIC No.17.41.1, AND, IN ANY CASE, THIS COURT HAS DETERMINED THAT GIVING THIS JURY INSTRUCTION DOES NOT VIOLATE A DEFENDANT’S CONSTITUTIONAL RIGHTS Appellant’s thirteenth claim on appealis that instructing the jury with CALJIC No. 17.41.1 violated appellant’s rights under the Sixth, Eighth, and Fourteenth Amendments. (AOB 321-343.) This claim should be rejected. Appellant’s claim wasforfeited by his failure to object or ask for a modification to this instruction. In any case, appellant’s claim lacks merit >! Sullivan v. Louisiana (1993) 508 U.S. 275 [113 S.Ct. 2078, 124 L.Ed.2d 182].) 165 because this Court has already held that CALJIC No. 17.41.1 doesnot violate a defendant’s constitutional rights under the Sixth and Fourteenth Amendments, and there is no reason to grantrelief under the Eighth Amendment. Thereis no indication in the record that appellant objected to CALJIC No. 17.41.1, or asked for a modification. Appellant does not claim he objected or asked for a modificationattrial. Therefore, appellant’s federal constitutional claims were forfeited. (People v. Rodrigues (1994)8 Cal.4th 1060, 1126, fn. 30.) Appellant’s state-law claimsare likewise barred from consideration for the same reason. (See Jd. at pp. 1153, 1167.) In the event, this Court decide to address the challenged instruction as affecting appellant’s “substantial rights” (§ 1259), appellant has failed to establish any error. (People v. Croy (1985) 41 Cal.3d1, 12, fn. 6.) In fact, appellantrecognizes that his claim has already been rejected by this Court. Anystate law errorin this regard would have been harmless under the “reasonable probability” test ofPeople v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243 and, indeed, any alleged federal constitutional error also was harmless underthe “beyond a reasonable doubt”test of Chapman, supra, 386 U.S. at pp. 23-24 [guilt phase instructions], People v. Engelman (2002) 28 Cal.4th 436, 442-443; People v. Brown (2004) 33 Cal.4th 382, 393 [penalty phase instruction].) (See AOB 321-322, fns. 100, 101.) Moreover, in 2012, this Court affirmed its prior holdings, stating: Defendant contendshis rights under the Sixth and Fourteenth Amendmentto the federal Constitution were violated by instruction pursuant to CALJIC No. 17.41.1. The instruction, as it was readto the jury, provided: “Theintegrity ofa trial requires that jurorsat all times during their deliberations conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law orto decide the case based on penalty or punishment or any other improper basis, it is the 166 obligation of the other jurors to immediately advise the court of the situation.” Although defendant correctly observes that we held in People v. Engelman ... that CALJIC No. 17.41.1 should not be given in criminaltrials in California because it has the potential to intrude unnecessarily on the deliberative process and affectit adversely, defendant points to nothing in his trial that would provide a compelling reason for us to reconsider our further conclusion that giving the instruction, althoughill-advised, does not violate a defendant’s constitutional rights. (Enge/man, supra, at p. 454, 121 Cal.Rptr.2d 862, 49 P.3d 209.) (People v. Souza (2012) 54 Cal.4th 90, 121.) Here,at the guilt phase, the jury was instructed with the same instructions discussed in Souza. (See 3CT 891; 29RT 4168-4169.) At the penalty phase, the words “based on penalty or punishmentor any other improperbasis,” where redacted to “based on any improper basis.” (13CT 3447; 31RT 4613.) Appellant has not offered any persuasive reason for this Court to reconsider the holding in Souza, Engelman, Brown, or Brady. — Appellant also fails to point to anything in the record to show the subject instruction had any affect whatsoever in the jury’s guilt or penalty deliberations. Certainly, appellant’s rank speculation about therisk that CALJIC No. 17.41.1 could distort deliberations is insufficient to show error or prejudice. (People v. Engelman, supra, 28 Cal.4th at. pp. 448-449.) XIV. THIS COURT HAS PREVIOUSLY REJECTED APPELLANT’S CLAIMS OF INSTRUCTIONAL ERROR AT THE GUILT PHASE Appellant’s fourteenth claim on appealis that a series of guilt phase instructions impermissibly and unconstitutionally undermined and diluted the requirement of proof beyond a reasonable doubt. (AOB 344-361.) This claim should be rejected becauseit lacks merit, and has previously been rejected by this Court. 167 Appellant concedesthat this Court has repeatedly denied many of his claims ofinstructional error. (AOB 356.) Indeed, this Court has rejected all, rather than many,ofhis claims of instructionalerror. In Peoplev. Whalen, this Court held: Defendant contends that 10 standard jury instructions given in his case—CALJIC Nos.1.00, 2.01, 2.21.1, 2.21.2, 2.22, 2.27, 2.51, 2.90, 8.83 and 8.83.1—individually and collectively allowedthe jury to convict him based uponproof insufficient to satisfy the constitutionally required “beyond a reasonable doubt” standard. (In re Winship (1970) 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368.) He arguesthat the error violated his right to due process of law under the federal Constitution and requires reversal without an inquiry into prejudice. (See Sullivan v. Louisiana (1993) 508 U.S. 275, 278, 113 S.Ct. 2078, 124 L.Ed.2d 182.) As defendant concedes, we haverejectedthis precise argument on occasions too numerousto recite. (E.g., People v. Tate (2010) 49 Cal.4th 635, 697-698, 112 Cal.Rptr.3d 156, 234 P.3d 428; People v. Kelly (2007) 42 Cal.4th 763, 792, 68 Cal.Rptr.3d 531, 171 P.3d 548.) As we have explained, each of these instructions “is unobjectionable when,ashere,it is accompanied by the usual instructions on reasonable doubt, the presumptionof innocence, and the People’s burden ofproof.” _ (People v. Nakahara (2003) 30 Cal.4th 705, 715, 134 Cal.Rptr.2d 223, 68 P.3d 1190.) Defendant invites us to revisit the issue, but provides no persuasive reason to do so. (People v. Whalen (2013) (2013) 56 Cal.4th 1, 70; People v. Friend (2009) 47 Cal.4th 1, 48-53 [the jury was properly instructed with CALJIC Nos. 2.01, 2.21.2, 2.22, 2.27, 2.51, 8.20, and 8.83]; Peoplev. Howard(2008) 42 Cal.4th 1000, 1024-1027 [holding no error occurred where the jury instructions included CALJIC Nos. 2.01, 2.21.2, 2.22, 2.27, 2.51, 2.90, 8.20, 8.21, 8.83, and 8.83.1].) This Court has “repeatedly rejected the same challenges to all of these instructions.” (People v. Streeter (2012) 54 Cal.4th 205, 253, citing People v. Parson (2008) 44 Cal.4th 332, 358; People v. Whisenhunt, supra, 44 Cal.4th at pp. 220-221; Peoplev. Howard, supra, 42 Cal.4th at pp. 1025-1026 & fn. 14; People v. Kelly (2007) 42 168 Cal.4th 763, 792.) Just as the appellant in Whalen, appellant provides no persuasive reason to reconsideror revisit this Court’s prior holdings. Accordingly, appellant’s fourteenth claim should be denied. XV. THERE WAS OVERWHELMING EVIDENCE THAT PATEL WAS KIDNAPPED, AS CONCEDED BY DEFENSE COUNSEL, SO THE USE.OF THE 1990 REVISION OF CALJIC No. 9.50, WHILE IN ERROR, WAS HARMLESS BEYOND A REASONABLE DOUBT Appellant’s fifteenth claim onappealis that the trial courted erred by instructing the jury with the 1999 revision of CALJIC No.9.50™, rather ** Thetrial court instructed the jury with the 1999 revision of CALJIC No. 9.50 as follows: Defendant Gomez is accused in Count 5 of having committed the crime of kidnapping, a violation of section 207, subdivision (a) of the Penal Code. [§] Every person who unlawfully and with physical force, or by any other means of instilling fear, steals, or takes or holds, detains or arrests another person andcarries that person without her consent or compels any person without her consent and because of a reasonable apprehension of harm to movefor a distancethat is substantial in character, is guilty of the crime of kidnapping in violation of Penal Code section 207, subdivision (a). [{] A movementthat is only for a slightor trivial distance is not substantialin character. In determining whethera distance that is more than slight or trivial is substantial in character, you should consider the totality of the circumstances attending the movement, including, but not limited to, the actual distance moved, or whether the movementincreased the risk of harm abovethat whichexisted prior to the movement, or decreased the likelihood of detection, or increased both the danger inherent in a victim’s foreseeable attempt to escape and the attacker’s enhanced opportunity to commit the additional crimes. If an associate crime is involved, the movementalso must be morethan that whichis incidental to the commission of the other crime. [§] In order to prove this crime, each of the following elements must be proved: [{] 1. A person was movedbythe use of physical forceor by any other meansofinstilling fear; [§[] 2. The movement of the other person was without her consent; and [{] (continued...) 169 than the 1996 revision.” Specifically, appellant claims that the jury was unconstitutionally told to considerthe “totality of the circumstances” (1999 revision), rather than whether the victim was moved“for a distance that [was] substantial in character” (1996 revision), to determine whether the asportation element of kidnapping wassatisfied. (AOB 362-368.) This claim should be denied. While it was error to use the 1996 revision of CALJIC No. 9.50, the error was harmless beyond a reasonable doubt. In 2011, in People v. Castaneda, this Court discussed the 1996 and 1999 revisions of CALJIC No.9.50, as well its prior opinion in People v. Martinez (1999) 20 Cal.4th 225, stating: (...continued) 3. The movementofthe other person in distance was substantial in character. (3CT 886-887.) 53 CALJIC No.9.50 (6th ed. 1996) provided: {Defendant is accused [in Count[s] ] of having committed the crime of kidnapping, a violation of section 207, subdivision (a) of the Penal Code.] [{] Every person who unlawfully [and with physical force [or] [by any [other] means of instilling fear], steals or takes, or holds, detains, or arrests another person and carries that person without [his] [her].consent and because ofa reasonable apprehension of harm, to move] for a substantial distance,that is, a distance morethanslight ortrivial, is guilty of the crime of kidnapping in violation of Penal Code section 207, subdivision (a). In orderto provethis crime, each ofthe following elements must be proved:[{] [1. a person was [unlawfully] moved by the use of physical force [, or by any other means of instilling fear];] [{] [1. A person was [unlawfully] compelled by another person to move because of a reasonable apprehension of harm;] [{] 2. The movementofthe other person was without[his][her] consent; and [{] 3. The movementof the other person was for a - substantial distance, that is, a distance more thanslightortrivial. 170 Defendant contendsthetrial court provided an erroneous instruction concerning the element of asportation for the offense of kidnapping, and thereby violated his rights to due process and a fair trial under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, andarticleI, sections 7 and 17 of the California Constitution. Thetrial court instructed the jury, pursuant to CALJIC No. 9.50, concerning the crime of kidnapping. (§ 207, subd. (a).) The instruction observed that kidnapping requires movementof the victim “for a distance that is substantial in character.” It further explained, in language taken from our opinion in People v. Martinez ... that, “[i]n determining whether a distance .. . is substantial in character, you should considerthe totality of the circumstances attending the movement, including, but not limitedto, the actual distance moved or whether the movementincreasedthe risk of harm abovethat which existed prior to the movement, or decreased the likelihood of detection, or increased both the danger inherent in a victim’s foreseeable attempt to escape and the attacker’s enhanced opportunity to commit the additional crimes.” (Italics added.) The eventsat issue here occurred before Martinez ... was decided, when “the asportation standard [was] exclusively dependent on the distance involved.” [Citations.] In Martinez, this Court held that the jury should consider instead ““‘the totality of the circumstances’” in deciding whether the distance a victim was moved was“‘substantial in character.’” [Citation.] We further concludedthat the new standard could not be applied retroactively, because it effected an unforeseeable enlargement of the factual basis for determining what constitutes a “substantial distance” under the-kidnapping statute, and the defendant did not have fair warning of the enlargement. (People v. Castaneda (2011) 51 Cal.4th 1292, 1319.) Thus, this Court’s prior holdings in Martinez and Castaneda makeit clear that the jury should have been instructed with the 1996 revision of CALJIC 171 No. 9.50, rather than 1999 revision, because appellant’s crimes occurred in 1997, and the 1999 revision does apply retroactively. However, as discussed below, the error was harmless beyonda reasonable doubt. The asportation element for the crime of kidnapping,as defined by the 1996 revision of CALJIC No. 9.50,is satisfied where: “The movement of the other person wasfor a substantial distance, thatis, a distance more than slight or trivial.” In Martinez, this Court discussedits prior holding in People v. Caudillo (1978) 21 Cal.3d 652. In Caudillo, this Court focused on the numberoffeet the victim was moved, and comparedthat estimate to the movement found in other kidnapping cases.. In the cases finding insufficient evidenceof asportation, the victims were moved about 75 feet (People v. Brown (1974) 11 Cal.3d 784), confined in a single room (People v. Thorton (1974) 11 Cal.3d 738), or moved from various rooms in a house plus an additional 15 feet outside of the house (Cotton v. Superior Court (1961) 56 Cal.2d 459). In the cases finding substantial evidence of asportation, the victim was movedfor a quarter of a mile (Peoplev. Stanworth (1974) 11 Cal.3d 588) or 200 feet (Peoplev. Stender (1975) 47 Cal.App.3d 413). (People v. Martinez, supra, 20 Cal.4th at p. 234.) In Castaneda, this Court found that the instructional error was prejudicial under Watson. That finding was based on particular factors and arguments not present in the instant case. Castaneda gained access to a medical clinic where he was a formerpatient. At that time, one female employee wasinsidethe clinic. While inside, Castaneda forced the victim to go 40 or 50 feet, from her office to a procedure room, where he then sexually assaulted and murdered her. The prosecutor arguedthat the asportation element was met based on factors consistent with the 1999 revision of CALJIC No.9.50, such as: facilitating additional crimes, preventing detection of the crimes, and preventing the victim from escaping. In fact, the prosecutor admitted that the movement was“[n]ot a 172 great distance in termsofactual feet” before urging the jury to focus on factors unrelated to the distance the victim was actually moved. (People v. Castaneda, supra, 51 Cal.4th at pp. 1003-1004.) As discussed below, the salient facts of the instant case were quite distinct from those in Castaneda. In the instant case, there was no doubt that Patel had been moved a distance “substantial in character” as defined by prior case law. Attrial, the prosecution and the defense disputed who kidnapped Patel, but neither party disputed that Patel had been kidnapped. During the People’s opening argument, after discussing the evidence showing Patel had been kidnapped, the prosecutor stated: “I invite the defense to concede that Patel was kidnapped so that you don’t have to spend any appreciable time on that issue. That would leave only the issue ofwho was the kidnapper for you to decide.” (26RT 3810.) Defense counsel acceptedthis invitation, telling the jury: “Mr. [Prosecutor], I will concede there was a robbery, I will concede it was a murder, and I will concede it was a kidnapping.” Counselalso told the jury: “Theissue,as I believe [the prosecutor] concedes himself,is whetheror not [appellant] is the person that committed the murder, committed a robbery and committed the kidnapping of Mr. Patel.” (27RT 3903.) This agreement between the parties showed there wasnoactual dispute that Patel had been kidnapped. The parties’ agreement was well-founded becausethetrial evidence allowed no reasonable dispute that Patel had been kidnapped. The prosecutionpresented evidence showing thatPatel had beenforcedinto the trunk of his car and, while alive, moved to a freeway on-rampin an industrial area, where he waskilled. For example, Patel was placed in the truck of his car after he suffered non-fatal stab wounds, which left blood in the trunk. Afterward, he was killed on a freeway on-ramp that was not easily accessible on foot. It was clear that Patel was released from the trunk, while alive, and then appellant fatally stabbed and shot him in the 173 head. (ORT 1475-1477; 12RT 1858-1859.) Thus, contrary to appellant’s assertions (AOB 367), there was no basis to conclude that Patel was only moved on the freeway on-ramp, or moved in his car when he wasalready dead. The jury could reasonablyinfer that Patel was moved a distance substantial in nature because freeway on-ramps are normally accessed by automobiles rather than pedestrians, and Patel was killed on the freeway on-rampafter he was stabbed in the lung and shotin the head at close range. (QRT 1523-1530, 1565.) Thus, there was only one reasonable conclusion; the killer drove Patel to the freeway on-rampafter forcing Patel into the trunk ofhis car from a location away from that freeway. Such movementclearly satisfied the asportation element of kidnapping, as defined by the 1996revision of CALJIC No. 9.50, because it was patent that Patel was moved morethan a slight or trivial distance. Therefore, the instructional error was harmless, undereither the Watson or Chapmanstandard for reviewing prejudice, because there was overwhelming evidence establishing the asportation element of kidnapping. Accordingly, appellant’s fifteenth claim should be denied. XVI. THE INSTRUCTIONS DEFINING SIMPLE KIDNAPPING WERE NOT UNCONSTITUTIONALLY VAGUE Appellant’s sixteenth claim on appealis that the section 207, subdivision (a), definition of simple kidnapping,in effect at the time of the kidnapping in this case, was unconstitutionally vague, affecting both the guilt and penalty phases. Specifically, appellant contendsthat the term “substantial distance”is so vague that its use violates due process, and the prohibition against cruel or unusual punishment, underboth the state and federal Constitutions. (AOB 369-384.) This claim shouldberejected because it lacks merit. As appellant concedes, this Court has already 174 rejected his claim in People v. Morgan (2007) 42 Cal.4th 593. Nevertheless, appellant asks this Court to revisit the issue. (AOB 370.) A. The Jury Instruction Below Thetrial court instructed the jury that: Every person who unlawfully and with physical force or by any other meansofinstilling fear, steals or takes or holds, or arrests another person, and carries that person withouthis consent for a distance that is substantial in character, is guilty of the crime of kidnapping in violation of Penal Codesection 207, subdivision (a). A movementthatis only for a slight or trivial distance is not substantial in character. In determining whethera distance. that is more than slightor trivial is substantial in character, you should considerthe totality of the circumstances attending the movement, including, but not limited to, the actual distance moved, or whether the movementincreased the risk of harm above that which existed prior to the movement, or decreased the likelihood of detection, or increased both the danger inherent in a victim’s foreseeable attempt to escape andthe attacker’s enhanced opportunity to commit additional crimes. If an associated crimeis involved, the movement also must be more than that whichis incidental to the commission ofthe other crime. In order to prove this crime, each of the following elements must be proved: . 1. A person was unlawfully moved bythe use of physical force, or by any other meansofinstilling fear; 2. The movementof the other person was withouthis her consent; and 3. The movementof the other person in distance was substantial in character. (3CT 886-887.) 175 B. This Court Has Already Rejected the Claim That Section 207 and the Related Jury Instruction Are Impermissibly Vague under Both the California and Federal Constitutions In People v. Morgan, supra, 42 Cal.4th 593, this Court addressed the sameissue presentedin the instant case. In that opinion,this Court stated: Defendant contends the asportation element ofsimple kidnapping under section 207, requiring movement ofa “substantial distance,” was “impermissibly vague underthe [statutory] construction that existed at the time of his 1994 offense and 1996trial,” in violation of our state and federal Constitutions. (U.S. Const., Amends. 8 & 14; Cal. Const., art. I, §§ 7 & 15.) We disagree. “Section 207, originally enacted in 1872, delineated what is today called simple kidnapping and merely restated the common law, which required that the victim be movedacross county orstate lines. [Citations.]” [Citation.] Section 207, subdivision (a), now provides, and at the time of defendant’s crimes provided, that “[e]very person who forcibly, or by any other meansofinstilling fear, steals or takes, or holds, detains, or arrests any personin this state, and carries the person into another country, state, or county,or into another part of the same county, is guilty of kidnapping.” “The language ‘into another part of the same county’ was added in 1905 in response to Ex parte Keil (1890) 85 Cal. 309{], in which this court held that the forcible removal of a person 20 miles from San Pedro to Santa Catalina Island, both in Los Angeles County, was not kidnapping within the meaning ofthe statute as it existed at that time. [Citations.]” [Citation.]. (Ud. at p. 604.) This Court also found that the relevant case law “provided adequate guidance as to what distances would be considered ‘substantial’ under the simple kidnappingstatute.” (People v. Morgan, supra, 42 Cal.4th at p. 607, citing People v. Caudillo (1978) 21 Cal.3d 562, 573-574.) And that the term “substantial distance,” in the context of defining the asportation elementfor simple kidnapping, was not unconstitutionally vague, and 176 therefore did not “violate due process or constitute cruel or unusual punishment.” (/d. at pp. 604-607, citing U.S. Const., Amends. 8 & 14; Cal. Const., art. I, §§ 7 & 15.) Moreover, as in Morgan, appellant “must do more than identify some instances in which the application of the statute may be uncertain or ambiguous; he must demonstrate that ‘the law is impermissibly vague in all of its applications.’ [Citation.]” (People v. Morgan, supra, 42 Cal.4th at p. 606, quoting Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1201.) In other words, “some marginal or hypothetical act” covered by the | languageofthe statute is insufficient, because of the strong presumption that a statute will be upheld unlessits “unconstitutionality clearly, positively, and unmistakably appears.” (/d. at pp. 605-606, internal quotations andcitation omitted.) In appellant’s case, Patel was clearly moved far enough to constitute the asportation element of simple kidnapping (see Statement of Facts and Argument XV,ante), so appellant cannot show anything other than a “marginal orhypothetical”situation, whichare insufficient to show statute is unconstitutionally vague. As discussed above, appellant expressly recognizes his claims were rejected by this Court in Morgan, and appellant does not offer any valid reasons for this Court to revisit this issue, for either the guilt or penalty phase. Accordingly, appellant’s sixteenth claim on appeal should be denied. 177 XVII. APPELLANT’S CLAIM OF GRIFFINERROR WASFORFEITED; THE PROSECUTOR MERELY COMMENTEDON THE STATE OF THE EVIDENCE; AND, ANY ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT Appellant’s seventeenth claim on appealis that the prosecutor violated Griffin v. California™ when,in an effort to fill a crucial evidentiary gap in his case for the Escareno homicide, he argued that there was no evidencethat appellant read certain newspaperarticles. (AOB 385- 397.) This claim should be rejected because it was forfeited, lacks merit, and resulted in no prejudice to the defense at either phaseofthetrial. A. Relevant Proceedings During closing argumentat the guilt phase, the prosecutor argued there was “ample” evidence corroborating Witness One’s testimony. (27RT 3835-3836.) The prosecutor arguedthat appellant’s statement to Detective Winter included informationnot released to the press by law enforcement, namely, that the victims’ wallets had been stolen. The prosecutorstated that the defense had presented only two newspaper articles, and invited the jurors to read thesearticles to determine whether appellant did not have “enough information to have told this to Detective Winter.” Afterward, the prosecutor told the jury that there was “absolutely” no evidence that appellant had seen orread the articles, and no evidence that appellant read any newspapersatall, especially because hislife was about drugs and drug dealers. Appellant raised no objection during this portion of the prosecutor’s apartment. (27RT 3836-3838.) After the prosecutorfinished his argument, appellant’s counsel moved for a mistrial based on the prosecutor’s “inadvertent” comments which “in effect and implied” that appellant “did not take the stand to testify that he 54 Griffin v. California (1965) 380 U.S. 609 [85 S.Ct. 1229, 14 L.Ed.2d 106].) 178 read these articles.” (27RT 3860.) Counselasserted that “in all likelihood” appellant was the only person who could establish whether he read the articles about Escareno and Patel. (27RT 3861.) The court disagreed becauseafter “listening carefully”it was clear the prosecutor did not say that appellant did nottestify. Counsel asserted it was “borderline.” The court found “it was a direct statement that there was no evidence that he read the article.” The court also found that appellant was not the only person who could confirm whether he did, or did not, read the articles. The court noted appellant could have presented evidence that he had a subscription to San Pedro Pilot, or testimony from someone who knew appellant read the paper, and heard him commentonthe articles. The court denied the motion for mistrial. At the guilt phase, thecourt instructed the jury with CALJIC Nos. 2.60 and 2.61, whichstate: A defendantin a criminaltrial has a constitutional right not to be compelled to testify. You must not draw any inference from the fact that a defendant does nottestify. Further, you must neither discuss this matter nor permit it to enter into your deliberations in any way. In deciding whetheror notto testify, the defendant may chooseto rely on the state of the evidence and uponthe failure, if any, of the People to prove beyond a reasonable doubt every essential element of the charge against him. No lack of testimony on defendant’s part will make up for failure of proof by the People so as to support a finding against him on any such essential element.” (3CT 877.) B. ' Appellant’s Claim Was Forfeited Because He Did Not Make a Contemporaneous Objection to the Subject Comments Appellant’s Griffin claim was forfeited because he did not raise an appropriate objection at trial. (People v. Memro, supra, 11 Cal.4th 786, 179 873-874; People v. Mitcham (1992) 1 Cal.4th 1027, 1050-1051.) Although appellant movedfor a mistrial after the prosecutor completed his argument, this did not preserve appellant’s claim because he failed to make a contemporaneous objection and request an admonishment. By seeking a mistrial, appellant sought a new trial, rather than to continue the trial with an admonishmentto the jury. Accordingly, appellant’s claim wasforfeited. (People v. Coffman, supra, 34 Cal.4th at p. 74; People v. Hughes (2002) Cal.4th 287, 372.) Nonetheless, appellant claimsthat the mistrial motion rendered any further request for a remedy futile. (AOB 388, fn. 121.) This argument makeslittle sense becauseat the time of the mistrial motion, appellant had already forfeited his current claim byfailing to make a contemporaneous _ objection and request an admonishmentduring the prosecutor’s argument. C. — Reversal Is Not Warranted Evenif Trial Court Had Preserved the Griffin-Error Claim for Appeal Addressing the standard for reviewing a claim of Griffin error, this Court hasstated: “T]he Fifth Amendment... forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidenceofguilt.” [Citation.] The prosecutor’s argument cannotrefer to the absence of evidence that only the defendant’s testimony could provide. [Citation.] The rule, however, does not extend to comments on the state of the evidenceor on the failure of the defense to introduce material evidence orto call logical witnesses. [Citation]. (People v. Brady (2010) 50 Cal.4th 547, 565-566.) There was no Griffin error because the prosecutor did not refer in any way to appellant’s decision not to testify. (People v. Keenan (1988) 46 Cal.3d 478, 509 [no Griffin error where the prosecutordid notrefer to defendant’s failure to testify].) As a “general principle,” a prosecutor may “allude to the defense’s failure to present exculpatory evidence”(People v. 180 Lewis (2004) 117 Cal.App.4th 246, 257, quoting People v. Guzman (2000) 80 Cal.App.4th 1282, 1289.) Here, the prosecutor commentedon “‘state of the evidence, or on the failure of the defense to introduce material evidence or to call logical witnesses’” which doesnotfall within the rule in Griffin. (People v. Turner (2004) 34 Cal.4th 406, 419, quoting People v. Medina (1995) 11Cal.4th 694, 755.) Here, the prosecutor merely commented that there wasno evidencethat appellant had read newspapers aboutthe crime. - (See United States v. Robinson (1988) 485 U.S. 25, 32 [108 S.Ct. 864, 99 L.Ed.2d 23] [“Griffin . . . protection of the right to remain silent is a “shield,” not a “sword”that can be used to “cut off the prosecution’s ‘fair response’ to the evidence or argumentofthe defendant.”].) As noted by the trial court, the missing evidence could have beenelicited, if it existed atall, from sources other than appellant. Certainly, the prosecution did nottell the jury that appellant was the only source of this evidence, that he should have testified, or that the jury could infer guilt from appellant’s failure to testify. There wasnoprejudice. Of course, appellant was not convicted of murdering Escareno. Asto any error or prejudice at the penalty phase, the prosecutor’s comments were ““‘[i]ndirect, brief and mild references to a defendant’s failure to testify, without any suggestion that an inference of guilt be drawn there from, are uniformly held to constitute harmless error.’” (People v. Monterroso (2004) 34 Cal.4th 743, 770, quoting People v. Boyette (2002) 29 Cal.4th 381, 455.) There was no “direct” comment on appellant’s failure to testify and no invitation to the jury to decide guilt or punishmentbased on appellant’s failure to testify. Regardless of the Escareno crimes, the jury had overwhelming evidence of appellant’s violent conduct and convictions under the death penalty verdicts. — Moreover, the jury wasinstructed that appellant had the “constitutional right .. . to elect to testify in the guilt phase only”and that the jury was 181 “instructed not.to consider or discuss the fact that the defendantelected not to testify in the penalty phase. That is a matter that must not in any way affect your verdict as to the penalty.” (3CT 876.) Thus, any error that may have occurred, assuming the claim was preserved for appellate review, was cured by the instructions which were presumably followed by the jury and washarmless. XVIII. THE TRIAL COURT PROPERLY DENIED APPELLANT’S MOTIONTO DISMISS THE CHARGES PERTAINING TO ESCARENO; AND, ACCORDINGLY, THE JURY WAS | PROPERLY INSTRUCTED HOW TO CONSIDER THESE ALLEGED CRIMES DURING THE PENALTY PHASE Appellant’s eighteenth claim on appealis that there was insufficient evidence that he murdered Escareno,sothe trial court erred and violated his constitutional rights by denying his section 1118.1 motion, allowing the jury to consider this murderat the penalty phase, and instructing the jurors that those whobelieved appellant guilty of murdering Escareno could consider that murderat the penalty phase. (AOB 398-424.) This claim should be denied because there was substantial evidence that appellant murdered Escareno by shooting him in the head with a shotgun. Witness One’s testimony was corroborated by additional evidence tying appellant to Escareno’s murder. So, the court properly denied appellant’s motion to dismiss counts 6 and 7 pursuantto section 1118.1. For these reasons, the trial court properly instructed the jury how to consider the evidence of Escareno’s murder during the penalty phase. A. Substantial Evidence Supported the Escareno Charges “Tn ruling on a motion for judgmentof acquittal pursuant to section 1118.1, a trial court applies the same standard an appellate court applies in reviewing the sufficiency of the evidence to support a conviction, that is, 182 ‘whether from the evidence, including all reasonable inferences to be drawnthere from, there is any substantial evidence of the existence of each elementofthe offense charged.’ (People v. Cole (2004) 33 Cal.4th 1158, 1212-1213, quoting People v. Ainsworth (1988) 45 Cal.3d 984, 1022.) Section 1111 provides that a defendantshall not be convicted on the testimony of an accomplice unless that testimony is corroborated by other evidence. (People v. Williams (2008) 43 Cal.4th 585, 635-636.) An accomplice is “one whois liable to prosecution for the identical offense charged against the defendantontrial in the cause in which the testimony of the accomplice is given.” (§ 1111.) Whether a person is an accomplice under section 1111 is a question of fact for the jury to decide, “[uJ]nless there can be no dispute concerning the evidence or the inferences to be drawn from the evidence[.]” (People .v Williams, supra, 43 Cal.4th at p. 636, citing People v. Avila (2006) 38 Cal.4th 491, 565; see Peoplev. Hoover (1974) 12 Cal.3d 875, 880 [the trial court, rather than the jury, determines whether a witness is an accomplice where the evidenceis “clear and not disputed”’].) The evidence necessary to corroborate accomplice testimony need only be slight, such that it would be entitled to little consideration standing alone. (People v. Sanders (1995) 11 Cal.4th 475, 534-535.) Corroborative evidence may be entirely circumstantial. (People v. Hayes, supra, 21 Cal.4th at p. 1271.) “The [corroborating] evidence ‘is sufficient if it tends to connect the defendantwith the crime in such a wayasto satisfy the jury that the accomplice is telling the truth.’” (People v. Lewis (2001) 26 Cal.4th 334, 370, quoting People v. Fauber (1992) 2 Cal.4th 792, 834.) However, the evidence need not establish the accomplice has actually told _ the truth. (People v. Hoyt (1942) 20 Cal.2d 306, 312.) Moreover, corroborating evidence need not“establish every element of the offense 183 charged[.]” Rather,it “must relate to some act or fact which is an element of the crime.” (People v. Zapien (1993) 4 Cal.4th 929, 982, internal quotations omitted.) Recently, this Court explained that this standard “means no more than that the evidence must ‘tend[] to connect [the] defendant with the commission ofthe offense,’ as stated in CALJIC No. 3.11.” (People v. Williams (2013) 56 Cal.4th 630 [156 CalRptr.3d 214, 256-257], quoting CALJIC No.3.11.) In the instant case, Witness One was an accomplice to Escareno’s murder; his testimony identifying appellant as Escareno’s killer needed sufficient corroborating evidence tending to show a connection between appellant and the commission ofthe Escareno murder. There were multiple sources of corroboration which individually, and collectively, tended to show appellant was connected to Escareno’s murder. Appellant’s statement to Detective Winter, and the particular circumstances under which it was made, corroborated Witness One’s testimony that appellant killed Escareno. On July 2, 1997, appellant was arrested after he attempted to hide from the police by forcing his way into a relative’s apartment. He possessed a shotgun and ammunition at tha t time. This attempt to hide occurred shortly after Acosta and Dunton were murdered, and less than a month after Escareno was murdered. Appell ant wastransportedto the HarborJail. The sameday, Detective Winter a nd her partner identified themselves as officers from “South Bureau homicide” before asking appellant standard booking questions. (13RT 2043-2044 .) Appellant told the officers that they must be busy because things had “gone crazy” in the harborarea, and that a man having his head shot off on Western, a woman whohadbeenkilled and then wrapped and dispose d in a dumpster, and two men who had been shot and had their brains splattered all over the place. Appellant mentioned that these victims could not b e identified, and that their wallets were missing. According to Detective 184 Winter, the police had not released any information that Escareno’s wallet had been stolen. (13RT 2043-2045.) The surrounding circumstances provided the crucial context for evaluating appellant’s spontaneous statement to Detective Winter. Appellant’s actions were entirely inconsistent with a person who was innocent, and/or inconsistent with a person concerned about facing serious criminal charges. Rather, appellant’s actions clearly raised the inference that he was connected to recent murders in the area. For example, appellant deliberately displayed bravado and taunted the police about unsolved murders in the area. This naturally raised the inference that appellant could have murdered Escareno. Whyelse would appellant chooseto tell Officer Winter, a homicide detective, that things had “gone crazy” because, among other murders, there was a man whohadhis head shot off on Western. (13RT 2043-2045.) There was norational innocent reason for engaging and taunting Detective Winter about unsolved murders in the area, the state of the victims’ bodies, and the effect this had on the homicide detectives. Even if there was a different possible reason for appellant’s inculpatory and provocative statement, this goes to the weight of the evidence before the jury, but does not negate the inference that appellant was involved in Escareno’s murder. (See People v. Perry (1972) 7 Cal.3d 756, 772 [This court has considered and rejected similar contentions on the theory thatit is the jury’s function to determine which ofseveral possible reasonsactually explains why a defendantfled.”].) Thus, appellant’s focus on whether he may havelearned of the murders by reading a newspaperor speaking with Witness One (AOB 403-412)is irrelevant to whether the jury could draw the inference that appellant’s statements tended to connect him to Escareno’s murder because he was aware the victims’ wallets had been stolen, butthis information had not been released to the press. Accordingly, appellant’s claim should be 185 rejected because appellant’s statement to Detective Winter sufficiently corroborated Witness One’s testimony. Second, as discussed above in ArgumentVII, appellant’s decision to willfully and rudely refuse to come to court, despite his obligation to do so, and despite thecourt’s extraction order, raised the inference that he had a consciousnessof guilt. The jury was also instructed on consciousness of guilt based onflight. (3CT 876.) This evidence tends to corroborate Witness One’s testimony. This Court has foundthat the evidence of flight, which is an implied admission,“may properly be considered as corroborative of the accomplice testimony.” (People v. Williams, supra, 56 Cal.4th at p. 257.) This Court has also foundthat “attempts of an accused to conceal his identity [citation] or his whereabouts [citation], may warrant an inference of consciousness of guilt and may corroborate an accomplice’s testimony.” (People v. Perry, supra, 7 Cal.3d at pp. 771-772,italics added.) Here, not only did appellant display a consciousness of guilt by willfully refusing to cometo court, he also displayed a consciousness of guilt by trying to conceal his whereabouts. This double display of a consciousnessof guilt was sufficient to corroborate Witness One’s testimony, either by itself, or in combination with appellant’s statement to Detective Winter. | Finally, as the prosecutor argued: There are two otheritems of corroboration that tend to connect[appellant] with the Escarenokilling. [{] Oneis that the killing was committed with a 12-gauge shotgun, and the other is that Escareno wasshotin the head; and each of the killings took place within 37 days in the Harbor/Torrance area, in each ofthese killings a 12-gauge shotgun wasused,except for ‘the Patel killing, and. . . except for Acosta, each of the victims wasshot in the head. (25RT 3648.) In other words,appellant’s involvementin the other charged murders tends to show he also committed the Escareno murder and 186 corroborates Witness One’s testimony. For these reasons, there was sufficient corroboration of Witness One’s testimony, and therefore the court correctly denied appellant’s motion pursuant to 1118.1, and denied appellant motion to dismiss the Escareno charges. B. The Trial Court Properly Instructed the Jurors at the Penalty Phase For the reasons stated above,the trial court properly allowedthe jury to consider Escareno’s murder during the penalty phase, as long as a juror found appellant guilty of Escareno’s murder beyond a reasonable doubt. (See People v. Manson (1977) 71 Cal.App.3d 1, 36 [Just as an artist creates a mosaic a piece at a time, so a prosecutor creates a picture of guilt by consideration of individual bits of evidence, otherwise insignificant, which in totality convince the seeker of truth.”].) Accordingly, appellant’s eighteenth claim should be denied. XIX. APPELLANT’S HAS FAILED TO SHOW THAT THE TRIAL COURT COMMITTED INSTRUCTIONAL ERRORAT THE PENALTY PHASE, AND ANY ERROR WAS HARMLESS UNDER ANY STANDARD Appellant’s nineteenth claim on appealis that the trial court failed to instruct the penalty phase jurors that they could not consider the murder of Jesus Escarenoas a factor in aggravation unless they found that Witness One’s testimony was corroborated by independentevidencelinking appellant to the crimes, while instructing jurors to disregard guilt phase - instructions that were not repeated at the penalty phase. (AOB 425-433.) This claim is plainly meritless. A. Relevant Proceedings During the guilt phase, the jury was given the standard instructions regarding accomplice testimony. (CT 880-881.) The jury hung on the charges involving Escareno. (3CT 836-844, 850-853; 29RT 4338-4440; 187 32RT 4661.) During the penalty phase, before argument, the trial court specifically addressed the allegation that appellant murdered Escareno. The court told the jury that this allegation was “no longer oneof the circumstances ofthe crime.” (31RT 4562.) The court explainedthat “ft]hose jurors who concluded beyonda reasonable doubt that [appellant] was guilty of the murder ofMr. Escareno are permitted to considerthat as an aggravation factor underfactor (b), prior acts of violence.” And “[t]he ~ other jurors that did not find that to be true beyond a reasonable doubt cannot considerthat as an aggravating factor.” (31RT 4562-4562.) The court further instructed the jury that: “you cannot require orinsist or suggest that jurors that did not reach that conclusion beyond a reasonable doubt can considerthat as an aggravating factor.” The court reiterated and emphasized that: “those of you whodid find beyond a reasonable doubt that [appellant] murdered . . . Escareno can considerit, those of you who did not find beyond a reasonable doubt cannot considerit as an aggravating factor.” (31RT 4563.) During argument, the prosecutor told the jury: Andtherefore as the Court already pointed out, for those of you who donot, did not believe that we proved Escareno’s murder beyond a reasonable doubt, then you may not consider that he killed five people in 37days, you are limited to considering that he killed four people in 37 days. Those of you who believe that we did prove appellant murdered Jesus Escareno beyond a reasonable doubt, you mayconsideras an aggravating circumstance that he killed five people in 37 days. (31RT 4567.) Defense counsel did not address the evidence of Escareno’s murder, or the crimes of which appellant was convicted. Rather, counsel told the jury that life without parole was punishment enough, and appellant, like any other humanbeing, deserved mercy. 31RT 4579-4593.) 188 B. Appellant’s Claim is Meritless Section 1111, which governs the treatment of accomplice testimony, states: A conviction cannot be had uponthe testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstancesthereof. This Court has held “the general rules requiring accomplice instructions apply at the penalty phase as well as the guilt phase of a capital trial” for “the defendant’s unadjudicated prior criminal conduct.” (People v. Williams (1997) 16 Cal.4th 153, 275.) | In the instant case, appellant has misconstrued or mischaracterized the trial court’s instructions tothe jury. Appellant erroneously asserts that the court merely told the jurors “that those whobelieved [appellant] guilty beyond a reasonable doubt of the Escareno murder could considerit in aggravation.” (AOB 426,citing 29RT 4329-4330, 4338-4340, 4362.) Based on this unsupportable supposition, appellant erroneously argues that the trial court never instructed the jurors how to consider Escareno’s murder, causing jurors to reconsider the evidence without considering corroboration. (AOB 426-427.) This is plainly incorrect. The court’s specific instructions were by far more preferable that the standard instructions regarding accomplice testimony. The court’s instructions cut to the quick and eliminated any doubt about which jurors could, and which jurors could not, consider Escareno’s murder as an aggravating factor. The court’s instructions or admonitions clearly told the jury only those jurors who already found appellant guilty of the Escareno murderat the guilt phase, necessarily based on the proper accomplice instructions given at the guilt phase, could consider these crimes as aggravating evidence. The court did not give the 189 jury the option to reconsider the truth of the Escareno crimes at the penalty phase deliberations. Moreover, the prosecutor’s statement to the jury complemented, and specifically referred to, the court’s prior instruction. Thus, there was no error. If somehow there waserror, which there was most certainly not, it was harmless under either the Watson or Chapman standard. The Escareno crimes were just one set of many violent crimes committed by appellant. It is very doubtful that jurors whodid not find appellant guilty of the Escarenocrimesat the guilt phase somehow based their penalty phase verdicts on the Escareno crimes, despite the court’s admonition to the contrary and despite their prior rejected of the charges at the guilt phase. Accordingly, appellant’s claims based on state law and/or the federal Constitution must berejected. XX. APPELLANT FORFEITED HIS CONSTITUTIONAL CLAIMS; THE TRIAL COURT PROPERLY PERMITTED THE PROSECUTION TO INTRODUCE EVIDENCE OF THE RACE OR ETHNICITY OF THE DEPUTIES ASSAULTED BY APPELLANT TO ARGUE THAT APPELLANT’S FUTURE DANGEROUSNESS APPLIED TO ANYONEAT THE PRISON WITHOUT REGARD TO RACE OR ETHNICITY; AND ANY ALLEGED ERROR WAS HARMLESS Appellant’s twentieth claim on appealis that “the prosecutor’s elicitation, andthetrial court’s admission, over objection, of evidence regardingthe ethnic backgroundoftwojail officers appellant attacked, evidence which the prosecutor then employed arguing for death, requires reversal.” (AOB 434-442.) Appellant’s claim should be rejected because he hasfailed to establish error or prejudice. A. Relevant Proceedings During the penalty phase, as fully described the Statement of Facts, the prosecution presented evidence that appellant used a “shank”to stab Deputy Millan, along with an inmate worker, while in custody at the jail. At the end of his direct examination, the prosecutor asked Deputy Millan, 190 “Whatis your ancestry?” Deputy Millan said he was Mexican-American. After Deputy Millan’s response, appellant objected that the evidence was irrelevant. The court overruled the objection. (30RT 4449.) According to Deputy Vanderleek, appellant threw urine on him at the jail. (30RT 4454- 4457.) According to Deputy Montoya, appellant attacked him, and when appellant was subdued, he threatened to kill Deputy Montoya and “every deputy here.” The next day, appellant tried to slash Deputy Montoya’s throat with an improvised weapon. (30RT 4460-4466.) The prosecutor, without objection, asked Deputy Montoyafor his ancestry, and he responded, “Mexican American.” (30RT 4467.) During argumentat the penalty phase, the prosecutor stated, without objection: | ’ Ask yourself which sentence balancesthe scales of the lives taken by this man. Ask yourselvesthis: is not passed violence the best predictor of future violence? We’ve shown this man’s history of past violence, and we’ve shownthat this man’s conduct while in custody is not the result of a racial or ethnic conduct, because his conduct, his violent behavior wasnot directed just at Vanderleek but also against Montoya and Millan, so that has nothing to do with it. (31RT 4571.) The prosecutor also argued: I respectfully submit to you that sentencing this mantolife without parole instead of death is like handing yourcredit card which allows him to assault other inmates, correctional officers and prisonstaff. I believe that with some murders, with somekillers you can say that custody will tame them. Custody will make society safe from them. I don’t believe you can say that in this case. Wehave shown this man’s conductin custody since 1991. We’ve shownthat custody does notinhibit him, custody does not tame him. (31RT 4573-4574.) 191 B. Appellant Forfeited His Federal Constitutional Claims Appellant objected exclusively on the ground the admission ofthe deputies’ ancestry wasirrelevant at the penalty phase. However, this objection did not preserve any federal constitutional claims. (Peoplev. Partida, supra, 37 Cal.4th at p. 438,fn. 3; People v. Heard, supra, 31 Cal.4th at p. 972, fn. 12 [federal constitutional claims forfeited]; Peoplev. Riggs, supra, 44 Cal.4th at p. 292 [same].) Accordingly, appellant has forfeited all federal constitutional claims by failing to raise these concerns in the trial court. (United States v. Olano, supra, 507 U.S. at p. 731.) C. Appellant Has Failed to Establish Error or Prejudice Thelegal principles regarding the introduction of relevant evidence are set forth in Argument VII, part C. Here, the deputies’ ancestry was relevant to whether appellant was a potential dangerto all jail staff or inmates. This Court hasstated: The section 190.3 factors of our death penalty law “direct the sentencer’s attention to specific, provable, and commonly understandable facts about the defendant andthe capital crime — that might bear on [the defendant’s] moral culpability.” (Citation.] The “facts and circumstances of the defendant, his background,andhis crime’”are mostrelevant to the sentencing decision in a death penalty case. [Citations. ] (People v. Bacigalupo (1993) 6 Cal.4th 457, 476.) However, “these factors must meet the dual standardsof‘specificity’ and of ‘relevance.’ They must be defined in termssufficiently clear and specific that jurors can understand their meaning, and they mustdirect the sentencer to evidence relevant to and appropriate for the penalty determination.” (id. at p. 477.) This Court explained: To meetthese dualcriteria, sentencing factors should not inject into the individualized sentencing determination the possibility of “randomness”or “bias in favor of the death penalty.” (Stringer v. Black, supra, 503 U.S. 222,at p. , 112 S.Ct. 192 1130 at p. 1139.) Inappropriate for consideration in the sentence selection process would be any aggravating factor that was either “seriously and prejudicially misleading,” or that invited “the jury to be influenced by a speculative or improper consideration[ ],” such as the race or political beliefs of the defendantthat are without any bearing on moral culpability. (People v. Ramos (1984) 37 Cal.3d 136, 153, 207 []; Dawsonv. Delaware (1992) 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309.) (People v. Bacigalupo, supra, 6 Cal.4th at p. 477.) In the instant case, the prosecution properly elicited, and the court properly admitted, the deputies’ ancestry during the penalty phase because it was relevant to appellant’s future dangerousness. The prosecutor addressed appellant’sfuture dangerousness bytelling the jury: “Ask yourselves this: is not past violence the best predictor of future violence?” (30RT 4571.) In this context, the prosecutor argued that appellant’s violence while in custody was “not the result of a racial or ethnic conduct” and that race “had nothing to do with” appellant’s attacks against the three deputies. This argument wasnot“seriously and prejudicially misleading” and did not direct the jury to consider matters that were “speculative or improper consideration.” The prosecution in no way asked the jury to consider appellant’s race to determine the penalty. The prosecutor did not assert that appellant acted with racial animus during any of the murders, or during the attacks on the three deputies. The prosecution did not ask the jury to consider the victims’ race, or the deputies’ race or ethnicity, as a reason in andofitself to impose the death penalty. Rather, the prosecutor merely arguedthat appellant was dangerous and would attackjail staff and inmateswithout regard to their race nor ethnicity. As the prosecutor argued, sentencing appellantto life without parole waslike giving him a “credit card .. . to assault otherinmates, correctional officers and prison staff.” To buttress this notion of future 193 dangerousness, the prosecutorasserted: “We have shown this man’s conduct in custody since 1991. We’ve shown,that custody does not inhibit him, custody does not tame him.” (30RT 4572.) It was in the context of in-custody violence that the testimony regarding the deputies’ ancestry was admitted; therefore, appellant has failed to show the evidence was irrelevant, or inadmissible for any other reason. Assumingthe evidence should not have been admitted, the error was completely benign, because the prosecutor merely argued that appellant’s violent actions were not basedon racial animus and therefore showed appellant was a danger to anyonein the prison. But this point was not a significant aspect of the prosecutor’s aggravation case. Instead, the prosecutor argued that appellant deserved the death penalty based on every factor of section 190.3, and appellant merely argued thatlife without parole would protect society and appellant, like every human being, deserved mercy. Underthese circumstances, appellant has failed to establish reasonablelikelihood that he would have been sentenced to life without parole absent the alleged error. XXI. APPELLANT’S CHALLENGE TO THE TRIAL COURT’S INSTRUCTION REGARDING “BIBLICAL REFERENCES” WAS FORFEITED; THERE WAS NO ERROR BECAUSE THE CHALLENGED INSTRUCTION WAS UNAMBIGUOUS AND CORRECTLY STATED THE LAW; AND THERE WAS NOTHINGIN THE RECORD THAT SHOWED APPELLANT WASPREJUDICED Appellant’s twenty-first claim on appealis that the trial court erroneously and unconstitutionally told the jurors that they were forbidden to “refer to biblical references.” (AOB 443-452.) Morespecifically, appellant arguesthat the trial court’s instruction “erroneously impl[ied] that jurors who, in deliberations, engaged in mora! reasoningillustrated by or rooted in biblical passages would be committing misconduct.” (AOB 446.) 194, This claim should be rejected. By failing to challenge the trial court’s instructions during trial, appellant forfeited any claim that the object instruction should have been clarified or modified sua sponte. This claim lacks merit because the challenged instruction plainly, and unambiguously, stated the correct law, and there was no reasonable likelihoodthat the jurors misconstrued or misapplied the court’s instructions as appellant suggests. Finally, the alleged error was harmless because nothing in the record supported even an inference that the jury would have returned a more favorable verdict. A. The Challenged Jury Instruction During the penalty phase,the trial court reiterated the substance of a guilt phase instruction,stating: I do want to emphasize again as ’ve done before that you’re not to bring anything to the deliberation process. Jurors are sometimes tempted in this phase ofthe case to refer to biblical references. Don’t bring the Bible and, don’t refer to those. You'll be guided by your own conscience andthe law. (31RT 4593.) B. Appellant Has Forfeited any Claim That the Trial Court Should Have Clarified the Now Challenged Instruction Appellant has limited the issue presented on appeal, stating that “the trial court may wellhave been correct insofar as it instructed jurorsthat they could not bring the Bible into their deliberation room.” Nonetheless, appellant claimsthatthe trial court “wenttoo far” bytelling the jurors not to refer to “biblical references.” (AOB 444.) Appellant forfeited his right to challenge the court’s instruction for the. first time on appeal. ““Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or 195 amplifying language.’” (People v. Hudson (2006) 38 Cal.4th 1002, 1011- 1012, quoting People v. Andrews (1989) 49 Cal.3d 200, 218; see People v. Whalen (2013) 56 Cal.4th 1, 71 [“Because defendant did not request clarification attrial, his subclaim is forfeited.”]; People v. Rogers (2009) 46 Cal.4th 1136, 1175 [During discussion of the proposedjury instructions, defense counsel did not request additional instruction and thus has forfeited his claim on appeal.”]; People v. Hart (1999) 20 Cal.4th 546, 622; People vy. Samaniego (2009) 172 Cal.App.4th 1148, 1163.) “But that rule does no t apply when. . . the trial court gives an instruction that is an incorrect statement of the law.” (People v. Hudson, supra, 38 Cal.4th atp. 1012, citing People v. Smithey (1999) 20 Cal.4th 936, 967, fn. 7.) Here, appellant’s failure to raise this claim in the trial court is not disputed, and, as will be shown below,the challenged instruction plainly, unambiguou sly, andcorrectly stated the law. Accordingly, appellant's claim of instr uctional error wasforfeited. ”° C. The Challenged Instruction Was a Correct Statement of Law Thepertinent inquiry is whether there wasa reasonable likelihood that the jury misunderstoodthe applicable law based on the language of th e instruction given at trial. (People v. Thorton (2007) 41 Cal.4th 391, 4 36.) This Court must “review the [challenged] instruction in combination w ith the other instructions and/orthe argument of counsel in determining if the instructions challenged on appeal confused the jury.” (Peoplev. Holt (1997) 15 Cal.4th 619, 699: People v. Jasper (2002) 98 Cal.App.4th 99, °5 The terms “waiver” and“forfeiture” are occasionally used “interchangeably.” The correct term in this case is forfeiture becaus e appellant failed to “object” to the instruction as given, and failed to “ invoke [his] right” to a clarification instruction. (in re Sheena K. (2007) 40 C al.4th 875, 880, fin. 1.) 196 111.) The Court must also assumethe jurors wereintelligent persons and capable of understanding andcorrelating all jury instructions that were given. (People v. Sanchez (2001) 26 Cal.4th 834, 852; Peoplev. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1294.) This Court must further presumethat a “commonsense understandingofthe instructionsin the light of all that has taken placeat the trial [is] likely to prevail over technical hairsplitting” during deliberations. (Boyde v. California (1990) 494 US. 370, 381 [110 S.Ct. 1190, 108 L.Ed.2d 316].) Here, the subject instruction did not preclude consideration of moral values based onreligion, just use of religious texts during deliberations. Whenread as a whole, the challenged instruction wasa plain, unambiguous, and correct statement of law, consistent with this Court’s prior holdings. Jurors were forbidden “to bring anything to the deliberation eeprocess.” This was a correct statement of law because “fi]t is, of course, misconduct for a juror to introduce any extrinsic material into the jury room.’” (People v. Davis (2009) 46 Cal.4th 539, 624, quoting People v. Mincey (1992) 2 Cal.4th 408, 483 and citing § 1137; see People v. Karis (1988) 46 Cal.3d 612, 642 [jury’s use of a dictionary to define legal terms is misconduct].) Jurors also commit misconduct by “reading aloud from the Bible or circulating biblical passages during deliberations” (Peoplev. Williams (2006) 40 Cal.4th 287, 333), so the trial court properly told the jury notto refer to biblical references. The court did address an individual’s “moral reasoning,” and using commonsense in other instructions, and jurors would have understood they could use their moral reasoning during deliberations, but had to leave extrinsic evidence outside the deliberation room door. Additionally, the general prohibition of extrinsic material provided the proper context for the remaining parts of the instruction. (Peoplev. Burgener(1986) 41 Cal.3d 505, 538-539 [‘“a reviewing court does not 197 focus exclusively on only “parts of an instruction”], disapproved on other grounds in People v. Reyes (1998) 19 Cal.4th 743, 753-754;see, €.g., People v. Anderson (2007) 152 Cal.App.4th 919, 928-929 [This argument depends upona strainedinterpretation of a single sentence read out of context.”].) Here,the trial court’s admonition notto refer to biblical references was, within the context of the general prohibition, merely a common example of improperextrinsic material, and therefore a correct statement of law. In fact, reliance onreligious authority “supporting or opposing the death penalty” is objectionable because “[t]h penalty determination is to be madeby reliance on thelegal instructions given by the court, not by recourse to extraneous authority.” (Peoplev. Sandoval (1992) 4 Cal4th 155, 194.) Appellant complainsthat the trial court’s penalty phase instruction improperly singled out moral reasoning based on the Bible orbiblical references. The record showsotherwise. A previous guilt phase instruction madeit clear that jurors were prohibited from using a “religious text of some kind,” including “a Bible or somethinglike that.” The jury was unambiguously told not to “refer to those”religioustexts becauseall such texts were “outside information.” (29RT 4174-4175.) During the penalty phase, the court specifically referredto its guilt phase instruction,stating “I do want to emphasize again as I’ve done before[.]”"° (31RT 4593.) This specific referencelinked the guilt phase and penalty phase instructionsto each other, and therefore the penalty phaseinstruction should be read in light of the prior jury instruction.’ Viewedin this light, these two °6 The court also explainedthat the jurors “could not look for outside sources of information.” This included a dictionary, a magnifying glass, and cellular telephones. (29RT 4174.) - 57 During the penalty phase, the jury wasinstructedto: “Disregard all other instructions given to you in other phasesofthetrial.” (13CT 3440.) (continued...) 198 instructions, combined, plainly and unambiguously barred the use of religious texts during deliberations. But the instruction did not bar individual jurors from considering their own moral values, religious or otherwise. Moreover, the subject instruction must be considered inlightofall the otherjury instructions. Here, the jury was told howto interpret the penalty phase instructions: “Do not single out any particular sentence or any individualpoint or instruction and ignore the other. Consider the instructions as a whole andin the light of all the others.” (13CT 3440.) It is presumed the jury understood and followed this instruction. (People v. Danielson (1992) 3 Cal.4th 691, 722.) It is also assumedthat the jurors were intelligent and capable of understanding and correlating all of the court’s instructions, and the “[i]nstructions should be interpreted,if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.” (People v. Martin (2000) 78 Cal.App.4th 1107, 1111-1112, internal quotations and citations omitted.) Here, the court’s instructions, taken as.a whole, simultaneously required the jury to rely on the facts and the law, and allowedjurors to be guided by their own conscience and the law.? For example, the jury was told not to investigate the law by “consult[ing] reference works or persons (...continued) . However,the trial court’s express reference to the guilt phase instruction about religious texts, and the court’s desire to “emphasize [that instruction] again,” manifested the court’s intention to havethis instruction readin conjunction with its penalty phase counterpart. *® The prosecution’s argument was consistent with the relevant jury instructions. The prosecutortold the jury “as [the] court pointed out and I want to make clear, each of you makes your own decision as to which aggravating circumstancesor mitigating circumstancesare true. Each of you makes your own decision.” (31RT 4567.) 199 for additional information.” (13CT 3441.) This admonishment, onits face, applies to any written or verbal source of information regarding the law. Employing commonsense, the jurors understoodthat the court was speaking about anyoutside written reference works, religious in nature, or otherwise. In other words, the totality of the instructions did not single out biblical passagesor religioustexts. The jury wasalso expressly instructed to consider: “Any other circumstance which extenuatesthe gravity of the crime even thoughit is not a legal excuse for the crime and any sympathetic or other aspect of the defendant’s character or record that the defendantoffers as a basis for a sentence less than death, whetheror notrelated to the offense for which he is on trial.” (13CT 3445.) The instructions regarding mitigating circumstances included “any fact, condition or event which does not constitute a justification or excuse for the crime in question, but may be considered as an extenuating circumstance in determining the appropriateness ofthe death penalty.” Each juror was “free to assign whatever moral or sympathetic value you deem appropriate to each and all ofthe various factors you are permitted to consider.” (13CT 3447-3448.) Thus, the instructions as a whole, in no uncertain terms, properly authorized each juror to considerhis or herbelief system, religious or otherwise, in determining the proper punishment. (See generally, People v. Danks (2004) 32 Cal.4th 269, 311 [jurors may properly consider their “personal religious, philosophical, or secular normative values during penalty deliberations”].) Under these circumstances, there was no reasonable likelihood that the jury believed, based on the instructionsas a whole, that moral reasoning rooted in the Bible was fundamentally different from other sources of moral reasoning and couldnotbe considered as to the penalty decision. (See People v. Brown (1988) 46 Cal.3d 432, 460,citing California v. Brown (1987) 479 U.S. 538, 546 [107 S.Ct. 837, 93 L.Ed.2d 200 934] [“we conclude the jury was otherwise properly informedofits obligation to considerall of defendant’s mitigating evidence”].) For the reasons stated above, appellant’s state law claim ofinstructional error shouldbe denied. For the same reasons, appellant’s federal constitutional claims should also be denied. Appellant erroneously insists that the jury must have singled out particular sentences of the instructions, even though the jurors were instructed not to “single out any particular sentence or any individual point or instruction and ignore the others.” (31RT 4596.) For example, appellant asserts that the challenged instruction “erroneously impl[ied] that jurors who, in deliberations, engaged in moral reasoningillustrated by or rooted in Biblical passages would be committing misconduct.” (AOB 446.) He also asserts that the challenged instruction deprived him ofa “judgmentofajury reflective of the conscience of the community, as brought to bear by the jurors’ ‘personal religious, philosophical, or secular normative values.’” (AOB 446, quoting People v. Danks, supra, 32 Cal.4th at p. 311.) As explained above, the challenged instruction limited the use ofreligious texts, as they were extraneousor extrajudicial information. But jurors were ultimately permitted to consider their own moral values, whatevertheir source, in deciding the punishment. Appellant erroneously implies that the orderof the jury instructionsis relevant to determining instructional error. (AOB 443, 451.) Appellant asserts: “Yet immediately after defense counsel concluded his summation, the court gave an instruction depriving jurors of one common and potentially crucial source of moral reasoning.” (AOB 443, italics added.) Later on appellant asserts: “Moreover, the court’s instruction, delivered immediately after defense counsel’s summation, suggested to the jury that counsel had made improper arguments for a life without parole sentence.” (AOB 451, italics added.) 201 This assertion is meritless for at least three reasons. First, the jury was instructedthat “[t]he order in which the instructions are given has no significance as to their relative importance.” (13CT 3440.) Second, - appellant’s counsel did not exhort jurors to use the Bible inclosing argument, so the instruction was not directedat appellant’s counsel. (31RT 4579-4593.) Instead, near the beginning of his argument, appellant’s counsel merely told the jury that “perhaps”a priest, rabbi, minister, or philosopher could argue or express issues involving life or death better than the attorneys. (31RT 4580.) Near the end of argument, appellant’s counsel’s referenced Terrence, an “ancient Roman playwright,”for the proposition that capital punishment was a great injustice to society. (31RT 4592.) But counseldid not ask the jury to disregard the court’s instructions or use religious texts to determine the sentence. Third, counsel’s primary argument wasbased on practical matters. Defense counsel argued why a sentenceoflife without parole was an adequate punishmentbecause: (1) appellant would die in prison (31RT 4580); (2) society would be protected (31RT 4581, 4584-4587): (3) and the punishment wassevere (3 IRT 4582 , 4587-4588). Acknowledging that there were aggravating circumstances, and no substantial mitigating factors, counsel nonetheless maintained that the jury should be merciful because appellant was a humanbeing with “innate metaphysical goodness”that was “incorruptible.” (31RT 4590- 4592.) So, defense counsel did not exhort jurors to rely on Biblical passagesorreligious viewsto decide punishment. Appellant also erroneously asserts that his claim of instruction error was “exacerbated” because the jury was instructed with CALJIC No. 17.41.1. (AOB 452.) This assertion should be rejected because there was no error to “exacerbate.” As argued above, the court properly instructed the jury that it was prohibited from bringing outside materials to jury deliberations or referring to outside materials to determine the law. 202 Furthermore, the jury deliberated for about two days before rendering a verdict and, during that time, the jury did not raise any concern regarding misconductor religious views. (13CT 3424-3428.) Accordingly, for all the reasons discussed above, appellant’s claim should be denied becauseit lacks merit. D. The Alleged Error Was Harmless In any case, even assuming the jury misconstrued the court’s instructions, there is no affirmative showing of prejudice, and there is no reasonable probability that the jury would have returned a more favorable verdict, but for the alleged error. (See People v. Rogers (2006) 39 Cal.4th 826, 904 [applying Watson standard of harmless error where the court erroneously omitted CALJIC No. 2.20 during the penalty phase].) As appellant concededattrial, there were several aggravating circumstances and no mitigating circumstances. Additionally, the verdicts of death for Lunaand Patel, and life without parole for Acosta and Dunton,patently illustrated that the jurors carefully considered the court’s instructions. Appellant erroneously asserts that the prosecutor’s closing argument supports his claim. (AOB 450.) Appellant’s assertion is.wrong. The °° Here, the prosecutor concluded in his argument bytelling the jury: Whenoneperson kills another, there is an immediate revulsion at the nature of the crime, but in a time so shortas to seem indecent to the membersofthe victim’s family, the dead person ceases to exist as an identifiable figure. _ To those individuals in the community of goodwill and empathy, warmth and compassion, only one ofthe key factors in the drama remains with whom to commiserate, andthatis always the criminal. The dead person ceasesto be part of everyday reality, ceases to exist. It is only a figure in an historic event. And weinevitably turn away from the past towardsthe ongoing reality. And the ongoingreality is the criminal trapped, (continued...) 203 prosecutor’ s quotation” had no substantive connection whatsoeverto the challenged instruction, the jury was expressly instructed that “[s]tatements made bythe attorney’s during thetrial are not evidence” (13CT 3440), and the prosecutor never suggested to the jurors that they should disregard the jury instructions. Certainly, there was no suggestion by the prosecutor or the court that the jurors should consider exclusively secular, rather than other sources of moral reasoning. (31RT 4577.) For these reason, even assumingerror, appellantis not entitled to any relief understate law or the federal Constitution. XXII. THIs COURT HAS ALREADY DENIED APPELLANT’S CLAIM THAT CAPITAL PUNISHMENT SHOULD NOT BE PERMITTED ABSENT A FINDING THAT A DEFENDANT IS GUILTY BEYOND ALL POSSIBLE DOUBT Appellant’s twenty-second claim on appealis that a death sentence should not be permitted absenceajury finding that the defendant is guilty beyondall possible doubt. Appellant asks this Court to vacate his death sentences for victims Luna and Patel and remandthecase for a new penalty phase. (AOB 453-462.) This claim should be denied. (...continued) anxious, now helpless, isolated, perhaps badgered, perhaps bewildered. He usurps the compassionthatis justly the victim’s. And he will steal his victim’s moral constituency along with hislife. (31RT 4577-4578.) 6° Here, the prosecutordid notrely on religion to persuadethe jury to impose death. Rather, the prosecutor focused on the callousness with which appellant executed his victims, out of greed or cowardice, by shooting them in the head or neck atcontact range. (31RT 4577-4578.) The prosecutor ended by arguing appellant did not deserve the jury’s sympathy, goodwill, warmth, compassion, mercy,or leniency. (31RT 4578.) 204 Appellant concedes that this Court has previously rejected the claim that the evidence of guilt must be stronger in a capital case than a noncapital case. (AOB 455 citing People v. Lewis (2009) 46 Cal.4th 1255, 1290, fn. 23.) This Court has already rejected this claim in Lewis and appellant has not provided new andvalid reasons to reconsider the issue. Therefore, appellant’s twenty-second claim on appeal should be denied. XXIII. THIS COURT HAS ALREADY DENIED APPELLANT’S CLAIM THAT THE DEATH PENALTYIS UNCONSTITUTIONALIN CASES PERMITTING THE JURY TO IMPOSE DEATH FOR ACCIDENTAL OR UNFORESEEABLE KILLINGS Appellant’s twenty-third claim on appealis that because the robbery and kidnapping special circumstances in this case permitted the jury to impose a death sentence for an accidental or unforeseeable killing, the death penalty is unconstitutional. (AOB 463-474.) This claim lacks merit because, as appellant concedes, “this Court has rejected this claim.” (AOB 464, citing People v. Taylor (2010) 48 Cal.4th 574, 661, and Peoplev. Young (2005) 34 Cal.4th 1149, 1204.) In 2010, this Court reiterated the state of the law: Asdefendant acknowledges, however, since 1987 we have repeatedly rejected the claim that an intent to kill or any other similar mental state is required under the Eighth Amendmentin order to establish death eligibility for the actual killer in a felony murder, and we havealso rejected the related claim that the imposition of the death penalty under these circumstancesfails to adequately narrowthe class of death-eligible offenders. [Citations. ] 205 (People v. Martinez (2010) 47 Cal.4th 911, 966-967.) Here, appellant has not provided any new andvalid reason for this Court to reconsiderhis claim and, therefore, his twenty-third claim on appeal should be denied.” XXIV. APPELLANT’S CHALLENGES TO CALIFORNIA’S DEATH PENALTY STATUTE HAVE BEEN REPEATEDLY DENIED BY THIS COURT Appellant’s twenty-fourth claim on appealis that California’s death penalty statute, as interpreted by this Court and applied at appellant’s trial, violates the United States Constitution. (AOB 475-497.) Each claim should be rejected. Appellant concedesthat this Court has consistently rejected all of his “routine” claims that California’s capital sentencing law violates the United States Constitution. (AOB 475, citing People v. Schmeck (2005) 37 Cal.4th © 240, 303-304.) Accordingly, appellant “briefly presents the following to urge their reconsideration and to preserve this claim for federal review.” (AOB475.) Appellant also asks this Court to grant him the right to present supplementalbriefing if this Court decidesto reconsider the issues presented in Ground XXIV. Because appellantfails to raise anything new or significant that would cause this Court to depart from its earlier holdings, his contentions should be rejected. (See, e.g, People v. McKinnon (201 1) 52 Cal.4th 610, 697-698 [rejecting, without reconsideration, all of the routine challenges to California’s death penalty law].) Moreover, it is entirely proper to reject appellant’s contentions by case citation, without additional legal analysis. (E.g., People v. Welch (1999) 20 Cal.4th 701, 771-772; People v. Fairbank (1997) 16 Cal.4th 1223, 1255-1256.) 6! Needless to say, there is no showingthat any of the charged murders was “accidental” or “foreseeable.” Instead, each and every one of the murders victims was executed with a clear intent to kill by the killer. 206 XXV. THE CUMULATIVE EFFECT OF ANY ERRORS DID NOT DEPRIVE APPELLANTOF A FAIR TRIAL DURING EITHER THE GUILTY OR PENALTY PHASE In his final contention, appellant argues that the cumulative effect of the alleged errors involving voirdire, self-representation, substantial evidence, the joinder of counts and defendants, the jury instructions, prosecutorial misconduct, and the admission of evidence. (AOB 498-505.) As respondent has demonstrated throughoutthis brief, however, there was no error; to the extent there was anyerror, appellant has failed to demonstrate prejudice. Indeed, whether considered individually or in the aggregate, the alleged errors could not have affected the outcomeofthe trial. (People v. Seaton, supra, 26 Cal.4th at pp. 675, 691-692; People v. Ochoa, supra, 26 Cal.4th at pp. 447, 458.) Even a capital defendant is entitled only to a fair trial, not a perfect one. (People v. Cunningham (2001) 25 Cal.4th 926, 1009; People v. Box, supra, 23 Cal.4th at pp. 1214, 1219.) The record showsthat appellant received a fair trial. His claim of cumulative error should, therefore, be rejected. 207 CONCLUSION Based on the foregoing, respondent respectfully asks this Court to affirm the convictions and sentence of death. Dated: June 10, 2013 Respectfully submitted, KAMALA D. HARRIS Attorney General of California DANE R. GILLETTE Chief Assistant Attorney General LANCEE. WINTERS Senior Assistant Attorney General JAIME L. FUSTER Deputy Attorney General / Lf io ID A. VOET Deputy Attorney General Attorneysfor Plaintiffand Respondent DAV:Ith LA2001XS0008 51308581.doc 208 CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S BRIEF usesa 13 point Times New Romanfont and contains 59,518 words. Dated: June 10, 2013 KAMALA D. HARRIS Attorney General of California JAA, VR DAVID A. VOET Deputy Attorney General Attorneys for Plaintiff and Respondent DECLARATION OF SERVICE Case Name: People v. Gomez No.: 8087773 I declare: I am employed in the Office of the Attorney General, which is the office of a memberofthe California State Bar, at which member’s direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in 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 June 11, 2013, I served the attached RESPONDENT’S BRIEFbyplacing a true copy thereof enclosed in a sealed envelope in the internal mail system of the Office of the Attorney General at 300 South Spring Street, Suite 1702, Los Angeles, CA 90013, addressed as follows: Roy L. Wallen Deputy Alternate Public Defender Los Angeles County Alternate Public Defender's Office 320 West Temple Street Los Angeles, CA 90012 Maria Arvizo-Knight Death Penalty Appeals Clerk Los Angeles County Superior Court Clara Shortridge Foltz Criminal Justice Center 210 West Temple Street, Room M-3 Los Angeles, CA 90012 The Honorable William R. Pounders Judge Los Angeles County Superior Court Clara Shortridge Foltz Criminal Justice Center 210 West Temple Street, Department 101 Los Angeles, CA 90012-3210 LynneS. Coffin Attorney at Law 8605 Santa Monica Blvd. #95752 Los Angeles, CA 90069 Counsel for Appellant Laura S. Kelly Attorney at Law 4521 Campus Drive, #175 Irvine, CA 92612 Counsel for Appellant Governor’s Office, Legal Affairs Secretary State Capitol, First Floor Sacramento, CA 95814 California Appellate Project Attn.: Michael Millman 101 Second Street, Suite 600 San Francisco, CA 94105 Anthony C. Manzella, Jr. Deputy District Attorney Los Angeles County District Attorney's Office 320 West Temple Street, Room 1180 Los Angeles, California 90012 On June 11, 2013, I caused thirteen (13) copies of the RESPONDENT’S BRIEFin this case to be delivered to the California Supreme Court at 350 McAllister Street, San Francisco, CA94102-4979 by OnTrac. I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on June 11, 2013, at Los Angeles, California. Lily Hood | fiboteok Declarant ~ Signature LA2001XS0008 $1309300.doc