PEOPLE v. HENRIQUEZ

Respondent’s Brief

Cal.November 25, 2009

du the Supreme Court of the State of California THEPEOPLEOF THE STATE OF CAPTTAL CASE CALIFORNIA, Case No. $089311 Plaintiff gn Respandent, ¥. CHRISTOPHER HENRIQGUEZ, Defendant and Appellant. Contra Costa County Saneror Court Cause Na, 88)003~4 The Honorable Peter L. Spimetta, duds RESPONDENT'S BRIEF Preessf}. POROEN Be Attorney Creneral of California DANE K. Cs PTE GERALD A. Sener ASS NARETTE W : epealy oeney General Rises TOP Deputy Attorney Creal State Bar No. 105085 455 Gaiden Gate Avanos, Suite 11008) San Francisco CA SaltOoNS Telechone: (41453 703-4872 Fax, (415) 753-1234 Email Marge YurdesHOR. OU SitorngesJar Hexponent TABLE OF CONTENTS Page Statement of the Case oo...ccecececeesenecescesscesssecenssecenasecsateensseeees 1 Statement Of Facts 2.00.00... eee cece cee eceseecccsesccsssecensescnssecseseessssensrserereees 2 A. Guilt phase 2.00...cccececcceseeeeesececsseeeesseceneevenes 2 1. Introduction...cececcc cecee cece censeeeeseees 2 2. PrOSECULION CASE... eee cceeccceeeeeesceseteeeneees 3 a. Before the murders.............00.00.000000 3 b. After the murders.....00..0.0.0..00cccccecee 6 C. The police investigation..........0.0.00...... 10 d. Appellant’s admissions...................... 12 e. The autopsies .....0...000..0 cececece 18 3. Defense Case. o.oo... ..cccccccccccccccscceesseeeeseeees 20 B. Penalty Phase ......0.......cccccccccccccccceseserssecesnsceenseeeats 23 1. Prosecution Case.......0....ccccccccceeseceesceeneeeeees 23 a. Other-crimes evidence .................0.2. 23 (1) July 31, 1996—bank 110)0)01<19ree23 (2) July 26, 1996 — bank TODbETY «0...eeeec et eeeees 24 (3) 1994 robbery of Frank 10)£10ere25 (4) 1994 robbery-murder of Jerome Bryant.........0000..00000.. 26 (5) Appellant’s admissionsto the 1996 bank robberies and the 1994 robbery- MUFET ooo...eeecee eee eees 26 b. Victim impact witnesses ........0..0.0000... 28 (1) Harold Jones «0.00.0... 28 (2) Angelique Foster.........0.00..000... 28 TABLE OF CONTENTS (continued) Page (3) Heidi Jones ........eee 29 (4) Valen Jones..............e eee 30 2. Defense Case.............ceccecccceeeseeeeeseeeeentneeeees 31 a. Appellant’s background..................... 31 b. Expert witnesses...........0..:cceeeeeeeeees 32 (1) Dr. Donald Dutton .................. 32 (2) Dr. Leont. :remncon............. 33 (3) Dr. Jonathan Mueller.............. 33 C. Character evidence.............ceee 35 (1) Mrs. Deborah Henriquez......... 35 (2) Edwin Henriquez.................... 35 (3) Renee Dunn,Charles Dunn, Viola Goldenberg, and Kenneth Henley................ 35 (4) Modesto Henriquez................. 35 3. Prosecution rebuttal case ............cece 36 ATQUMEM..... 2... eee ec eeececcceeeceecceceeeeceeeeeeeeeeeeeeeceeeeeeesecaaeaieaeeeaeeeeeereeeeeeseeeneaa 37 L Appellant failed to make a primafacie showingthat the jury selection system in Contra Costa County unconstitutionally underrepresents African-Americans...... 37 A. Applicable legal principles................eeceeeeeeeeeees 38 B. Relevant proceedings................cccceccceeesceeesteeeeetaees 39 C. Appellant has failed to establish a prima facie violation of the fair-cross-section requirement........ 47 Il. Thetrial court properly ruled that the prosecutor could cross-examine/rebut appellant’s expert witness with his uncharged robbery-murdet.............0......ccccccceceteeeteeees 54 A. Relevant proceedings ..............ccccceecceeessccecesteeeeteees 54 i I. IV. TABLE OF CONTENTS (continued) Page Appellant’s in limine motion to exclude evidence of the 1994 robbery-murder of Jerome Bryant .00......000cccececccceeneeeees 54 402 Hearing...eecece seeteeceneeeeees 55 The trial court’s ruling...eee 59 Dr. Dutton’s testimony during guilt PHASE ooo.cecece cc eeeseeeeeseeestsseenseeeaes 62 B. Applicable legal principles ........000..00.cece 62 C. Thetrial court’s ruling to admit evidence ofthe 1994 robbery-murder for impeachment wasnot an abuse of discretion ............000.0cccccccceeeeee eerste 65 D. Even assuming arguendothetrial court’s ruling was an abuseofdiscretion, any error in ruling to admit the challenged evidence washarmless........... 67 The trial court properly allowed the prosecutor to introduce evidence of appellant’s attempted jail escape to show consciousness Of guilt 0.0.0.0...eccoeceeeeeeneee 70 A. Relevant proceedings............0.ccccecccecectceeteeeseeeees 70 B. Thetrial court properly allowed evidence of appellant’s escape attempt......0...0000.0cceceeee 74 C. Evidence of appellant’s escape attempt was not unduly prejudicial «22.0.0...cece ceeceeeceseeeseeees 77 D. Even assuming arguendo that admission of evidence of appellant’s escape attempt was erroneous, any error was harmless...........0.0..0000.000. 79 The trial court properly allowed into evidence Carmen’s out-of-court statement.......0...00000000cceeeeeeeeees 79 A. Relevant proceedings..............c cc ceccceeseeeteeeeceseeeee 79 B. The trial court properly admitted evidence of Carmen’s statement as a spontaneousstatement...... 84 lil VIL. D. TABLE OF CONTENTS (continued) Page Thetrial court properly admitted the statement as circumstantial evidence of appellant’s motive tO KAD ceeccceceeceeeeceeeeneeseeeeseeeneeeneeeeneenaee 87 Anyalleged error was harmless............0....0: ee 89 Thetrial court properly instructed the jury that it could infer consciousnessofguilt if it found that the defendant made false statements, attempted to escape from jail, or fled the crime scene...eee91 A. The challenged instructions were properly given and did not duplicate other instructions on the use of circumstantial evidence.............0...cees 9] Theinstructions were not unfairly partisan or ATBUMEMNLALIVE 2.eee ee eeecceeeeeeeeneeeeeeeneeeteneeeeeets 95 The challenged instructions did not permit the jury to draw irrational permissive inferences about appellant’s guilt 22.0...eeeeseeeeteees 97 Even assuming arguendothe challenged instructions were erroneously given, any error was harmless .............0cccccceeeceeeseeeseceeeeeeeseceeseeeeeeeens 99 CALJIC No. 2.51 does not permit the jury to find guilt based upon motive alone or shift the burden of proof onto appellant to prove imMoOcence..............eeeeeeeeee 100 Thetrial court did not abuse its discretion in denying appellant’s motions for separate guilt and penalty juries and for sequestered voir dire............00..ccceee 103 A. Thetrial court did not abuseits discretion in denying appellant’s motion for separate guilt and penalty juries ........00...c eee eeeeeeeeeeeteeeeteeeseteees 104 Thetrial court did not abuse its discretion in denying appellant’s motion for individual! death qualifying voir dire...eceeeeeeeeeeereeeeteees 107 iv VII. XIl. TABLE OF CONTENTS (continued) Page C. Thetrial court’s denial of defense counsel’s request to conduct voir dire a second time before the penalty phase wasnot an abuse of GUSCTEtION 22... cece e cece cece ceeteecceeeessesesseeetinensns 116 The trial court properly admitted victim impact evidenceat the penalty phase; the prosecutor did not commit misconduct by arguing vengeance..............00..0.... 119 A. The admission of victim impact evidence was not an abuse of discretion...........00..00.00cccee cece 120 1, Relevant proceedings ............00..ccccceeeee 120 2. Applicable legal principles.........00..00000000. 128 3. ALQUMeNt 000.ccceceesseeeeeeececeeseeres {29 B. The prosecutor did not commit misconduct by arguing for vengeance on behalf ofthe family....... 134 Thetrial court did not abuseits discretion at the penalty phase by admitting into evidence two photographsof the victims in death........0..0000000e 139 A. Relevant proceedings..........0..0...0cccceceeseeseeseees 139 1. The guilt trial...cccceeeeeeeees 139 2. The penalty trial...eee 142 B. Applicable legal principles ....0..00.000000cc ee 144 C. The admission of the challenged photographs was not an abuseofdiscretion.............000.0000.00.. 145 D. Anyalleged error was harmless...............00..00.0000. 149 Evidence that appellant would kill a guard to escape jail was properly admitted in rebuttal 0.000000. 151 Thetrial court properly rejected appellant’s requestto instruct the jury that it could consider mercyin deciding whether to imposea life sentence .............0..0..... 160 Thetrial court did not mislead the jury regarding the nature of their sentencing determiantion |... 169 TABLE OF CONTENTS (continued) XIII. This Court has previously rejected all of appellant’s attacks on the constitutionality of California’s death peralty LAW... ceceecsseeseceeeeeteneeseteteeneterseeststessessenssaeneees 177 A. The death penalty statute adequately narrows the class of murdererseligible for the death POMAILY0seeeeeseceeereeeeesceeeserseeeeneereeseenesaseneees Penal Codesection 190.3 properly requires juries to consider the circumstancesofthe crime when considering whether to impuse ute ueauh penalty; it did not violate appellant’s rights underthe Fifth, Sixth, Eighth, or Fourteenth AMeNAMENHS...........0ceccceseeccceeesseceeeeeecescenescenenererene The death penalty statute and corresponding jury instructions properly set forth the appropriate burden of proofand did notviolate appellant’s rights under the Sixth, Eight, and Fourteenth Amendments...............ccccccccseesceeneereneee 1, Aggravating factors need not be fourid true beyond a reasonable doubt..............4. 2. The trial court properly abstained from instructing the jury that the state bore the burden of persuasion regarding the aggravated circumstancesand on the burden of proof regarding how to weigh aggravating and mitigating factors............ 3. Appellant had noright to a unanimous jury finding on the fact of prior unadjudicated activity, nor on the aggravated circumstancesthatjustified the death penalty 0.0... eeeeeeeteeereertrees 4. Thetrial court properly instructed the jury that it could impose the death penalty if the aggravating circumstances substantially outweighed the mitigating CIPCUMSLANCES............cceccseevceesseseeeeseeeseneeees vi Page .. 178 . 178 .. 178 .. 179 .. 179 .. 180 . 181 TABLE OF CONTENTS (continued) Page 5. The trial court properly instructed the Jury to determine whether death wasthe appropriate punishment.............0...0.000000.. 181 6. The trial court properly instructed the jury that it could impose death only if aggravating factors outweighed mitigating factors 2.20... cece eeeeeeeeeneees 181 7. The trial court properly refrained from instructing the jury on a burden of proof and unanimity regarding mitigating CITCUMSTANCES 0.0.0... eee eececcceteeeeeeeeteceeens 182 8. Thetrial court properly refrained from instructing the penalty jury that it should presumethat life was the proper sentence... 182 D. The lack of written findings by the jury did not deprive appellant of meaningful appellate TOVICW 00... cccceeeeeceeeeeeeceeeeeeaeeecseeeseesseeesteteessstecenss 182 E, Appellant had no nght to inter-case proportionality review to determine whetherhis planning and execution of three murders warranted imposition of the death penalty ............. 183 F. The California death penalty law doesnot violate the equal protection clause....................02. 183 G. California’s use of the death penalty does not violate any controlling international laws or AQTECMENES22.eee c cece cece ccecceeeeceeeeeeeeeteeeeeeennnes 184 XIV. Appellant cannot demonstrate any entitlementto relief for “cumulative” error ....0.0.000.00c cece cceceeeceeceeeceesseeeseseees 184 COnCIUSION 000... eee eceeee cece eenecceeeeecseseeeeseeessseseeecesscsesesesesecsreesstersates 185 Vii TABLE OF AUTHORITIES Page CASES Apprendi v. New Jersey (2000) 530 U.S. 466 ooo.eeecece etter cenit rnttenetneeees 179, 180 Blakely v. Washington (2004) 542 U.S. 296 oooeectcence ener eens ereeenetnteeneeeinees 179, 180 California v. Brown (1987) 479 U.S. 538 oooeeeee ete e etre ee tereneevnrsssstentenrniterteenes 102 Chapman vy. California (1967) 386 U.S. 18oieeeeeee eeneteneeeneeneteneey 79, 99, 149 Clemonsv. Mississippi (1990) 494 U.S. 738 oo...eeeect reise test eeteneereteneersetneeeeees 183 Cunningham v. California (2007) 549 U.S. 270 ooo.eteeter eect etn ee entre neeeeniey 179, 180 Duren v. Missouri (1979) 439 U.S. 357 oooceceeee eer ee nets er neeteneteeenteennes passim Engle v. Isaac (1982) 456 U.S. 107ooteecette e eee cet ecrtereetentetteneernrens 149 Estelle v. McGuire (1991) 502 U.S. 62 ooo.eteeee eet eter eter tenet eneeeeneenntey 149 Fuller v. Roe (9th Cir. 1999) 182 F.3d 699.00eeeeete rere e ete 185 Gregg v. Georgia (1976) 428 U.S. 153 oooeectereer crete ns reseertneeneeesnitens 167 Harris v. Pulley (9th Cir. 1982) 692 F.2d 1189.00eeeeentn eereieens 183 Hope v. Arrowhead & Puritas Waters, Inc. (1959) 174 Cal.App.2d 222.0000.eectete teeter een tenets 63, 64 vill Hovey v. Superior Court (1980) 28 Cal. 3d Looecece eter t teers t eee tteettetenennnieeieens 110 In re Emilye A. (1992) 9.Cal.App.4th 1695 2200.eceeeeteeveeeees Lectetteeees 86 Jefferson v. Terry (N.D. Ga. 2007) 490 F.Supp.2d 12610eenrererenees 49 Lesko v. Lehman (3d Cir. 1991) 925 F.2d 1827200000 cececcccccetsteeseeevettteeeenrsees 138 Lockhart v. McCree (1986) 476 U.S. 162 0000cece cccececeeeeveeeseeeeececesssseeeventea erties, 104 Miranda v. Arizona LIRR ZF SFN ADA TIO A ier Om ULL. B36 ooo cp cce ccc c es tecveceecuttesbttbebeetubetietietcerecere elec. passim Moradi-Shalal v. Fireman’s Fund Ins. Companies (1998) 46 Cal.3d 287o.ooeecette bb ebtcttenntenieees 138 Payne v. Tennessee (1991) 501 U.S. 808 oooeetete b bette cnitnrtteerey 129, 139 People v. Abilez (2007) 41 Cal.4th 472oooeeecec tee tecettnettteeeereneen 182 People v. Adcox (1988) 47 Cal.3d 207oooeecttetettebbetctettnniteriets 102 People v. Allen (1986) 42 Cal.3d 1222oooccccet tete tenet 149, 150, 184 People v. Andersen (1994) 26 Cal.App.4th] 24) ooocecetee ttceerivteetees 93 People vy. Anderson (1922) 57 Cal.App. 720 oo...eeeee cette ettevietetviteveteenene, 98 People v. Anderson (2001) 25 Cal.4th 543oooeeete ntnntenen 134, 145, 146 People v. Andrews (1989) 49 Cal. 3d 200ooo.ceect beets bettetetetenieresiees 184 People v. Arias (1996) 13 Cal.4th 92.020cecece cetestnseveretnteeteennen, passim 1X People v. Bacigalupo (1991) 1 Cal.4th 103 oo.cccece ec eect eens ete eee ereeeneety 95, 96 People v. Barnett (1998) 17 Cal.4th 1044ooceerience 178, 179, 183 People v. Barnwell (2007) 41 Cal4th 1038 oo...eeeeenterrence ne ceecesteeteetenes 95 People v. Beivelman (1968) 70 Cal.2d 60.00...iccceeeecttient tee tetecterteteniees 135 People v. Bell (1989) 49 Cal.3d 502 000.0eecette tte ti eteenee 47, 48, 49, 50 People v. Belmontes (1988) 45 Cal. 3d 744oooeeteeter teeter ett tteeteetetetces nee People v. Bemore (2000) 22 Cal4th 809 ooo...ceeer teeter teeter ctetcerees 179 People v. Benson (1990) 52 Cal.3d 754, 786 000.0ees148, 161, 162, 168 People v. Blair (2005) 36 Cal.4th 686 2.00...eectetn tit tebe ct tees 180, 182 People v. Bolden (2002) 29 Cal.4th 515 ooo.eeeect eneeenetenenneee 178, 179, 183 People v. Bolin (1998) 18 Cal4th 297oooteeeeecient enereee 98, 180 People v. Box (2000) 23 Cal.4th 1153 0...eeereece tne titertenenererniees 145 People v. Boyette (2002) 29 Cal.4th 381 20...eeneet eter e tee tenteees 129, 130, 184 People v. Bramit (2009) 46 Cal.4th 1220 oo...cecece cere renee eneteeneeenieenies 130 People v Breaux (1991) 1 Cal4th 280oooeenett ttt netneteee passim People v. Brown (1985) 40 Cal.3d 512 o.ooceceeect estes eect eeecetctetenetentereetetees 171 People v. Brown (2003) 31 Cal.4th 518 vcececssscseeccsstesseeessecseetersesseeseeeeeeseeees 85, 129, 130 People v. Buford (1982) 132 Cal.App.3d 288 oo. e cc eecsseeessecsseeersceressecseeseeeresneretessaeeasereens 52 People v. Burgener (2003) 29 Cal.4th 833 occecssececcseeseeseceesneecseseeeseseseeeerneey 47, 50, 52, 53 People v. Caro (1988) 46 Cal.3d 1035 oeeesceseecessersnsneneessseetsesseessesesaeeeneesecsesaeeaees 162 People v. Carpenter (1997) 15 Cal.4th 312eeecscsseccnssessssesenessseeessessesssssesasseeseeseeesseseees 180 People v. Carpenter LOGOS 2 CalAth 1016eeedecceeeeereeeeterdMascssessesessetersesseieseee £80, 182 People v. Carrington (2009) 47 Cal.4th 145 oocccccccteneceesseseesserssseesesseeseeeseesaeeeeaeenseereeaes 98 People v. Cash (2002) 28 Cal.4th 703 oo.eecesscssecccscnseereeeseseessseeseseeseseasenees 105, 106, 107 People vy. Castillo (1997) 16 Cal.4th 1009 oo... eeccsceccsseeeecccsssteecessetsessseceseesseseseesenstessseses 102 People v. Catlin (2001) 26 Cal. 4th 81 oeeeeescccsneneeceessseeesesesescsessstevseetssetesseseeeeaee 119 People v. Cavanaugh (1955) 44 Cal.2d 252 oo. ccccsseecsssccesssessecceeseeseeecseceeesteeeseseseeeestescseeesteates 148 People v. Clark (1992) 3 Cal 4th 41 oceccsessnansseneecceceneseeeeesesseesseeeesersceseeeesstentvas 161 People v. Coffman (2004) 34 Cal. 4th 1 o..cccceeecceesesscesseteeececeeeeseeeeeeeeeeeeaeesseecseeeeessseseseeneess 182 People v. Coleman (1985) 38 Cal.3d 69 oo. ccccccccecceseecaceeeeeeceneeseeeeeecieeesseesseeeseesesettesersees 89, 90 People v. Cook (2007) 40 Cal.4th 1334 oo.seceeeeeceereeeessesseeseseetensesensetenseessseenss 181 People v. Cornwell (2005) 37 Cal.4th 50 oo. eceeceeeseseereeseeaeeeeseeeceecneeceeesatecseeesestaeenes 67, 179 Xl People v. Cox (1991) 53 Cal.3d 618 .occcccccccsssssseesesesscsteesssesseeteeseetttecasineesnsneneeees 134 People v. Crandell (1988) 46 Cal.3d 833 oo...eectteeter ti etree eieeeieeeeiee 98 People v. Crew (2003) 31 Cal.4th 822 000.0...cecee cette cette teeeeeieeeeieeienes 178 People v. Crittenden (1994) 9 Cal.4th 83.00.00eecc eee ee terete teen eee eieceeencireenteneey 183 People v. Cudjo (1993) 6 Cal.4th 585 ooo.ceene nec itn teen enti tteteeetestettiees 64 People v. Cunningham (2001) 25 Cal.4th 926.00...eescceetteeeeeeeeee SOT People v. Currie (2001) 87 Cal.App.4th 225 ooo.etertee passim People v. Davenport (1985) 41 Cal.3d 247 ooo.teeneee e cient etenetetteetteeiees 170 People v. Davis (2009) 46 Cal.4th 539 .o...ccccccccscssecessercsessrstseesesseesesscessiceserestenssseneees 133 People v. Demetrulias (2006) 39 Cal4th Loiccece eee tre ett t te cttitcicetetteee 167 People v. Dennis (1998) 17 Cal. 4th 468oooectite eect t nner nent tnetteeneecny 64 People v. DePriest (2007) 42 Cal4th dooceeecetneect tree tnenee 167 People v. Doolin (2009) 45 Cal. 4th 390.2...enerer etter tne nt tcenetneeenee 63 People v. Duncan (1991) 53 Cal.3d 955 ooo.eeecette ete n treet etttretneees 171, 182 People v. Dykes (2009) 46 Cal. 4th 730 oo.eectcence retro rtteeneeteneennnees 178 People v. Edwards (1991) 54 Cal. 3d 787 ooo.eeeeter te treet ete tettiertetteerereeeeeny 129 People v. Ellis (1922) 188 Cal. 682 0000.0eieee teste tte teeeeetcteteeteenniteens 78 People v. Ellis (1966) 65 Cal.2d 529200icette ee eeetetetteeteeeteenetenes 96 People v. Farmer (1989) 47 Cal. 3d 888 ooo.eeeee e tte ee cnet tteetttteeectecnteennes 85 People v. Farnam (2002) 28 Cal4th 1070.00eeet e tee ttteeteccensseeenets 74 People v. Fauber (1992) 2 Cal4th 792ootetttt ttteteee 118, 119, 183 People v. Fields (F283) lo rn ae) FeO ye J SAL Od B29ceed ces voce cece cee e ect e eee eee eee eee estate turner eeeees 104 People v. Flood (1998) 18 Cal. 4th 470oooceceesecsecsesses esreteteisetteteteeese 99 People v. Frierson (1979) 25 Cal. 3d 142200ieect tebe e cbs cbtesctesteeenenseennrey 183 People v. Geier (2007) 41 Cal.4th 555ooeetice t testes teetneteeeererentey 182 People v. Ghent (1987) 43 Cal. 3d 739 oo. cccccccccccssesesssessssessessessessvesseessrestareessiessese 136, 184 People v. Griffin (2004) 33 Cal.4th $36 o.oo. ccccccccccccesssssssessessereteesevessreserssssveseveeeeee 162, 164 People v. Guerra (2006) 37 Cal. 4th 1067oo.eeee ec ceneteteetteenrecerinvenes 97 People v. Gurule (2002) 28 Cal. 4th S57oooeectecb cts cbteteteteteevieventenes 144 People v. Hall (1926) 199 Cal. 45Deecte tte brctnetttnenieereey 76, 77 People v. Harris (2008) 43 Cal. 4th 1269occcect ecttreetnteneeneny passim People v. Hart (1999) 20 Cal. 4th 546.0cecect tenetnneey 155, 180, 182 xii People v. Hayes (1990) 52 Cal.3d $77 ooo...etetter eter etter rneeeees 179, 183 People v. Hendricks (1988) 44 Cal.3d 635 oo...eceteteenie 60, 63, 64 People v. Hill (1998) 17 Cal4th 800 00...ceetereteeiner rreererites 135 People v. Hillhouse (2002) 27 Cal4th 469 ooo...ccccettenett t te nentneees 93, 184 People v. Holloway (2004) 33 Cal.4th 96.000...ceeeeeetree ener tree r ne eeneees 95 People v. Holt (1984) 37 Cal.3d 436 oo...cecettt te tre tteeeees - FS People v. Holt (1997) 15 Cal4th 619ooottctei tn tent er rere 180 People v. Honig (1996) 48 Cal.App.4th 289 ooo.ttteeete eteeetee 152 People v. Horton (1995) 11 Cal4th 1068oooeetrentenrenes 38 People v. Howard (2008) 42 Cal.4th 1000.00.00.cetectriteeeenetes 94 People v. Howard (1992) 1 Cal4th 11320000.ceeeeetiereeteteeneeee 50 People v. Hoyos (2007) 41 Cal4th 872 0000020itereteees 108 People v. Hughes (2002) 27 Cal 4th 287ooo.tities64 People v. Jackson (1980) 28 Cal.3d 264 oo...ceceeeecite etree ttteneeeey 183 People v. Jackson (1996) 13 Cal.4th 1164oottetter 38, 98 People v. Jenkins (2000) 22 Cal.4th 9002...eeeetreceereeey 184 XIV People v. Johnson (1992) 3 Cal.4th 1183 20...ceceeee ete eects seetcseeenees 180, 182 People v. Jones (1964) 225 Cal. App.2d 598.0000.eectte tte ttt e te batons 63, 64 People v. Jordan (1986) 42 Cal. 3d 308 220...ceecnet ee ereeeetsttstteeeccennenennes 65 People v. Jurado (2006) 38 Cal4th 72.000.ceeeet eect tte eebbttentteeetaeey 97, 167 People v. Kaurish (1990) 52 Cal. 3d 648oooeeeect ccc e tenet eebettbtetteerestraeens 146 People v. Keenan (198°) 46 Cat. 3d 478oo.Leceeebeseee Seccesbecececenseteeeeetsesteneeubeeeeenaas 184 People v. Kennedy (2005) 36 Cal. 4th 595 ooo.eeeett tteeecnees 62, 63, 178 People v. Kipp (1998) 18 Cal. 4th 349oeeeeeee c eee tbeetnettecnenieeeniees 118 People v. Kipp (2001) 26 Cal. 4th 1100.00.00eeeeee bebe ects ctnetevnrnesnees 78 People v. Kostal (1958) 159 Cal.App.2d 444.00eeeeect ccc tevetteevetentetenes 78 People v. Kraft (2000) 23 Cal4th 978 ooo.eeecent teens stctennetenieentaees 119 People v. Lewis and Oliver _ (2006) 39 Cal. 4th 970ooo.eeeeects tbe csstbetttntteerresenrees 130 People v. Loker (2008) 44 Cal4th 697 ooo.ceeeben ect ttenttenieee passim People v. Lucero (2000) 23 Cal. 4th 692 00.00eeeeect eects tenetneeerreeerteeene: 134 People v. Marks (2003) 31 Cal4th 197oooceectteeteettveteetitereereeneey 130 People v. Martinez (2003) 31 Cal4th 673 2200...tieee cntetnteteeetinery 155, 158 XV People v. Massie (1998) 19 Cal.4th 550...eeerterect teneneiiree 38, SO People v. Mattson (1990) 50 Cal.3d 826 oo...ieeetite e etter ete ern entteet renee 38 People v. McPeters (1992) 2 Cal.4th 1148.00.eeteeterenterica 164 People v. McWhorter (2009) 47 Cal.4th 318... 0ccccccccccccccssceesssseseeseseesstetessrtissesristsereeseeneearens 95 People v. Medina (1995) 11 Cal.4th 694ooo.eterna178 People v. Mendoza (2007) 42 Cal.4th 686.0020.eeetees i People v. Millwee (1998) 18 Cal. 4th 96.000rire184 People v. Mincey (1992) 2 Cal4th 408 ooo...cetteteeters 96, 97, 183 People v. Miranda (1987) 44 Cal. 3d 57 ooo.ccceteierect reeieeeierireree: 104 People v. Mooc (2001) 26 Cal.4th 1216.00.00teetererent 100 People v. Moon (2005) 37 Cal. 4th Loo...eeettereees passim _People v. Morrison (2004) 34 Cal4th 6980.0eiiittretenet 85 People v. Nakahara (2003) 30 Cal.4th 705 20.00.etttttei 95, 96, 97 People v. Neely (1993) 6 Cal. 4th 877oooectteieettieteieeiee 75 People v. Nicolaus (1991) 54 Cal. 3d 551 oootert105, 162 People v. Nye (1969) 71 Cal.2d 356.0...cccteteet trceeiereee 63, 64 Xvi People v. Ochoa (2001) 26 Cal.4th 398 ooo...eeecece cece cee tbeeteetetteneenaes 53, 179 People v. Odle (1988) 45 Cal.3d 386.200ecece eect ete e sense tettetsetenevnesennesy 75 People v. Osband (1996) 13 Cal.4th 622000.0ectt ieee tests teteeetettnenctennay 178 People v. Panah (2005) 35 Cal.4th 395 ooocececee ceee cette eee teetietttettetteenetenes 66 People v. Parson (2008) 44 Cal.4th 332000eeeee cee tee ete seeceeseteeneesensts 182 People v. Pensinger (eee 22 Cal. Bd L210eectect e eee c ete e ects tte tneeettteteenieens 85 People v. Phillips (2000) 22 Cal4th 22600...teecet cbt tteetetenteerneenss 86 People v. Pinholster (1992) 1 Cal4th 865oooceceeee crete eee eeeetietetttetcnteeneenaey 94 People v. Poggi (1988) 45 Cal. 3d 306 oo...ecece eect ebb cetstteeteseteeernneserts 86 People v. Pollock (2004) 32 Cal.4th 1153000ceee cee 128, 130, 132, 133 People v. Prieto (2003) 30 Cal.4th 226 ooo... ccccccccccccscessssesesuessvsssetssesseessresvereees 53, 101, 102 People v. Raley (1992) 2 Cal. 4th 870.0000 ccceeeteeeee reeset 86, 129, 145, 146 People v. Ramos (1997) 15 Cal.4th 1133 0000ceecette tenet 38, 39, 47, 48 People v. Ray (1996) 13 Cal. 4th 313oeettttttetee 106, 107 People v. Remiro (1979) 89 CalApp.3d 809 oo.cececette stent tettteveeeeennens 79 People v. Rich (1988) 45 Cal. 3d 1036200.cccc tbe cbenetetesterineensees 104 XVU People v. Riggs (2008) 44 Cal.4th 248ooo.cetteette tet rneneees 182 People v. Robinson (2005) 37 Cal.4th 592.0...etnies 131, 132 People v. Rodriguez (1986) 42 Cal.3d 730 oo...cccetetter trent iecnrnretierees 155 People v. Roldon (2005) 35 Cal.4th 646.2...citeresent etneeneneees 86 People v. Rowland (1992) 4 Cal. 4th 238oo...etttities 104, 105, 119 People v. Samayoa (1997) 15 Cal.4th 795 .ooccccccccssccccccesesse te eeeeesseeesssesssetteennnneessneest MEO People v. Sanders (1990) 51 Cal.3d 471 oo...ccccette cient ttirirtieneeteeeeeeiey 50 People v. Sanders (1995) 11 Cal.4th 475 occ cccccecccccssesesessseeeeeeesvetetteeessniesnneeessseseee 178 People v. Sapp (2003) 31 Cal4th 240ooo.cecteteener ieieteneee 179 People v. Scheid (1997) 16 Cal.4th Vo.tee145, 146, 148, 149 People v. Silva (2001) 25 Cal.4th 345 ooo...ectcect cere cece seentieeeneeeeiens 135 People v. Smithey , (1999) 20 Cal4th 936.000.cntenet tne eneireteeteten 76, 98 People v. Snow (2003) 30 Cal. 4th 43.00...ent ee tne ce eee en se ce stcteteeneeces 10] People v. Stanley (1995) 10 Cal4th 764oo...eereece t tt teeneeeeees 146, 178 People v. Steele (2002) 27 Cal.4th 1230 2.00...ceceentice tect ttttitnteseetereees 76 People v. Taylor (1990) 52 Cal. 3d 719...eecette tenn tt ne trtneeeee 118, 171 XVili People v. Terry (1970) 2 Cal.3d 362.00...eecette ete eeteettttteeeeetees 75, 78 People v. Thompson (1988) 45 Cal. 3d 86.2000eecece eect eect eee eeteteeettieeteess 148 People v. Thompson (1990) 50 Cal.3d 134oooeeeeect tee b tte t bette ttieeenes 147 People v. Thornton (2007) 41 Cal. 4th 390oooeeeee t crt tetttteecenteeneey 75 People v. Trimble (1992) 5 Cal.App.4th 1225 oooeecttee t ttt ecettenes 85, 87 People v. Turner (19945 6 CaL.4th 137200Se eeeeeeeveeetneeeeseeteteteseteneetteeeesitieenes 178 | People v. Valencia (2008) 43 Cal4th 268oo.eectetc teeeceetbtrteenneetnteen 183 People v. Vieira (2005) 35 Cal. 4th 264oooeeecee ecb teeettereteeeneeey passim People v. Wader (1993) 5 Cal.4th 610...ettere ttt teteeentennes 162, 178 People v. Waidla (2000) 22 Cal4th 690ooo.cectett tt ttttetnteeens 107, 108 People v. Ward (2005) 36 Cal4th 186 .000..0cccecttet tect teee 179, 180, 182 People v. Wash (1993) 6 Cal.4th 215oooteeterett etetctteenenetenes 145 People v. Watson (1956) 46 Cal.2d 81800ccccecreeeesevnsestevevevennreees passim People v. Watson (2008) 43 Cal4th 6522200ccees cnet cneteetteteevverteses 144 People v. Welch (1999) 20 Cal 4th JOD oo.cecec ce ceecteceereneteretenteeeee: 70 People v. Wharton (1991) 53 Cal. 3d 522 oooicecece e ttt tettteteeteeniees 134, 146 XIX People v. Williams (1997) 16 Cal.4th 153 0...ceetee tee te te eieeeeereees 78, 119 People v. Wims (1995) 10 Cal.4th 293 ooo...eeeteenerences99 . People v. Wright (1990) 52 Cal.3d 367 2.0...cectteeter et enertetteteerteeteees 134 People v. Young (2005) 34 Cal.4th 1149 o.oo ocececeeeee testi eters te sisereeeeneetey 155 People v. Yu (1983) 143 Cal. App.3d 358.00...ceceetic ttre eteeeteeeees 64 People v. Zambrano (2007) 41 Cal.4th 1082.00.00. 136, 227, rere People v. Zamudio (2008) 43 Cal. 4th 327 oo...ceceecee ence teens tieeeteseteteneeey 132 Pulley v. Harris (1984) 465 U.S. 37 oooeeetter rice tbee ce eeesitetieeteeteteetees 183 Ring v. Arizona (2002) 536 U.S. 584 oooeteteetn eer tt entree tene trees 179, 180 Roberts v. Louisiana (1976) 428 U.S. 325 oooeneeect teeta e crete ete ttettestestetereaees 167 Salazar v. State (Tex. Crim. App. 2002) 90 S.W.3d 330 ooo...cecetes 132 State v. Bigbee (Tenn. 1994) 885 S.W.2d 797 ooo.ceceetere eect eteeteees 138 State v. Middlebrooks (1999) 995 S.W.2d 550.000.eecteeecreer etree titer e teenies 138 State v. Pindale (1991) 249 N.J. Super. 266 00.000ceeere eet tener net tenet teeees 138 Swain v. Alabama (1965) 380 U.S. 202 oooeeeeeeetree nine terete tteeeeey 48 United States ex rel. Barksdale v. Blackburn (Sth Cir. 1981) 639 F.2d 11S.eeeterenti e ene 48 XX United States v. Chanthadara (10th Cir. 2000) 230 F.3d 1237oooceccc ce cent teecenteneeees 49 United States v. Hafen (ist Cir. 1984) 726 F.2d 20occeect c eect ecb tettetvestevteeens 49 United States v. Maskeny (Sth Cir. 1980) 609 F.2d 183.000.tts eceteeeeteteeeeeey 48 United States v. Musto (D.N.J. 1982) 540 F.Supp. 346 oo.cccceccccccccccscecssesevesseesvessvesvessesstes eevee 49 United States v. Rogers (8th Cir. 1996) 73 F.3d 774.0000cccce eteteeesttesteretrevtentees 49 Williams v. Superior Court (1989° 49 Cal.3d 736000bo vlestesesserseeeenes Leeceseteveteesteeeeeedanes 38, 47 STATUTES Civil Procedure Code B23eeeee bee e bbcode ceeeteeteptnisttesensnieeeeeeesnnes 109, 110, 116 Evidence Code §QDceceeect e eee e tebe eee bete tbe sttbetsessescctetnetevenraesreey 144 § B50eeecect e tree eee tebe tie eect ebestestttsstensttsenretesertrertreey 144 BBS coc ceccccccccseseresesesseseressesvesevseverevenesveseesetsesiteseste essesvee17 8 35Dleceee ete e eet eee cie bt eeecetueetcstetstevttenitentiseteeeeey passim §AQQ occ cco sees cesecesssesssevesesereeseseresveveissseeveseseeevessvessessienststeseseeesese 55, 62 § 720 occ ccc cccceccesecesseesessevesevsesvevevsvsvesssitevevevesesretetesttevetsesiesetetvesesesees 64 SQeecteect cee beecesetntteeissevtitevsnveseritevenieeteers: 63 § 721, subd. (a)...cececece cence tester riteeniteestitertetensns 63, 64 § 790eeeeect eee cette ee tbeetbbeetetstectitentnitertitevertrens 63, 64 SLVOV oeoccecccccccceccececeveesecseseedeeseeeescsesssettee cette eevee vette65, 74, 75, 152 § 1101, subd. (a).cettecee bette tenseetnittriteerrnets 54, 65 § LIOL, subd. (C)ooceceteense eneeeeviteetriventeeentterteeen 63 152 § 1102, subd. (B)o.oocecece tervtenteeernneen 151, 152, 156 § 240eeeec cceeeseeeeevriseeeeveeverttteteeentreees 81, 84, 86 Penal Code SBDceceeects ttt te tte be ect tcbiteienuttnitteitereeevinerreeee 1 § 190.2, subd. (a)(3).....0cececece ete ceceseeeveteverseectterttterterree, 1 § 190.3 oooccccccccccccesseseessessessseesseseesesseseessee vests esetseestettes teeters: 161, 175 § 190.3, subd. (a)...cececece ete sevuteevttertieetetereen passim XX § 190.3, SUA. (b)....c..cecscccseesseseesssoseessesseessesseecesvetecessvneeessvineeeeeveeeen 179 § 190.3, subd. (Kk)...cececreer treet retberteteecseenneeiseeny 166, 175 § 190.4, subd. (C)oo.ceceeee cetetee tenets teens tieecttesensiseseteeeiey 103 § 667, Subd. (a)...eeecece cere rt eee e recat teers tececeecieeneiessiseercetiserenaes 1 § 1127, subd. (D) oo.eeecee ces cette cree nteetetesnensssecentesseaeegs 64 SVD QTCococeceee eee ences test eeeeterecrscntesesersteetestiseseisestecstsieeieees 94 § 1170. 12, subd. (DB)...eecece eee ete ce reece tenets tne tenenestetieesenees 1 § 1170.12, subd. (C) oo...ceceence eet ses eteteeertieeeneneeteey 1 § 12022, subd. (b) oo...ieeece cece etter eee cere ene eet cite ttneeeeneeeeiees 1 CONSTITUTIONAL PROVISIONS California Constitution Article VI, § 13.00...ceeeee een terrier tent ter nttteteteectnneen 109 United States Constitution bom ava Fourth Amendment......0......00.00..ccccccceecc cece eect eee te erin neeeentreeenneeeees 1sy Fifth Amendment 2..0.0000000000 0.0 ccccccc cece ccc ceccececceceeeeeeeeeeneeeateeeeenee 103, 139 Sixth Amendment ..........0...000 00000ccece cece cceceeeeeeeeeeeeeeeeeeeeeeenees 103, 139 Eighth Amendment.......0..0000000 cecececeett70, 103, 139, 184 Fourteenth Amendment............0000000.0ccceecececee ce eeenee ce enettnneeetetentreeens passim OTHER AUTHORITIES 1A Wigmore, Evidencein Trials at Common Law (Tillers rev. 1983) § 173, Pp. VB4QLeccecece eens teeter e ect eee tte tienes taeeereceenerteeneesesteetets 95 California Jury Instructions, Criminal NO. 2.002.000cccece c cece eenececcnsceesaeseereseeeeeesesseeestetensnrenseeeeats 92, 94 NO. 2.0)ooocececece ce teeeeetseeeeciteeeviteeeteseteeesteeeneneeen 92, 93, 94 NO. 2.03.00 ccccc cece teeee teeters eeneteeesebneteenseeevseeeenrsteenttterneeeess passim NO. 2.040000 coccicece cece eee eet teeee tenets cteeeecneseeenieeeeneneerenseseeens passim NO. 2.50...ccece ec ceceseeneeeeeeeceneeeeueesteeectessesesetesseseneessnteenees 66 ONO. 2.5iccce ececeee este ee ceseeeeeneeustseenseenssensiseesiteceeteees 100, 101, 102 NO. 2.522000 cccccc cece eee eenceeceseeeteeeeneeseestecetessereesttesseenitenses passim NO. 2.802000ccccece cc ccceceeceecnseceteeeecesenteesseeeserecessreentsesserssteeniees 64 NO. 3.3 Lococo cccccc ccc c cece cee ceece ee cteeeetenseeeeieeeetieteenteteeeensereesneeeey 101, 102 NO. 8.88.00ceceeee e eee eeeeceeneeeerernnieeeeentnntateesenneeeed passim NO. 17.30.oooceecece eeee cee eteeeceeecceetntetesseucteeseteseevisseneesrerens 99 NO. 17.3 Lincocece cece eee cece ceeceeeeseeeeecteeeeeteeeciteeeeetetennteeesseeesneeey 99 NOS. 8.85ccccetera tees eee etieeeeeseneteeeesesnteeereetnieeeesnnes 179 Kairys, Jury Representativeness (1977) 65 Cal.L.Rev. 776, 795, fn. 103 ....... 49 XXil STATEMENT OF THE CASE On October 10, 1996, the Grand Jury of Contra Costa County filed an indictment accusing appellant of two counts of premeditated murder (Pen. Code, § 187; counts I & II)’ and one count of murderofa fetus (§ 187; count III). As to counts | andII, the indictmentalleged that appellant personally used deadly and dangerous weapons; a knife and plastic bags and a claw hammer,respectively (§ 12022, subd. (b)). As amended, the indictmentalso alleged a multiple murder special circumstance (§ 190.2, subd.(a)(3)), one prior strike (§ 1170.12, subds. (b) and (c)), and a prior serious felony conviction (§ 667, subd. (a)). (1 CT 132-134, 136; 18 RT 4696.) On October 16, 1996, appellant pleaded not guilty and denied the enhancements and special circumstanceallegation. (1 CT 140.) On November 20, 1998, appellant moved to quash the jury master list and jury vemre. (2 CT 360-567.) On June 2, 1999, Judge Thomas Reardon denied the motion. (2 CT 739-740.) On October 22, 1999, appellant moved for the court to empanel a separate penalty jury and implementcertain jury selection procedures. (3 CT 767-786.) On November 1, 1999, the court held a hearing on appellant’s motion and on November10, 1999, it denied the motion. (3 CT 817, 871.) On November15, 1999, appellant’s guilty-phase jury trial began. (3 CT 874.) On December 14, 1999, the jury found appellant guilty as charged and foundtrue the attendantallegations and enhancements and special circumstanceallegations. (3 CT 954, 4 CT 1423-1424; 14 RT 3342; ' All subsequent references will be to the Penal Code unless otherwise indicated. 18 RT 4696-4697.) On January 21, 2000, appellant’s penalty-phasetrial began. (4 CT 1236.) On February 2, 2000, appellant moved for a mistrial; the trial court denied appellant’s motion. (4 CT 1243.) On February 7, 2000,the jury sentenced appellantto death. (4 CT 1312, 1314.) On March 29, 2000, appellant moved for a new trial. (4 CT 1322-1323, see also 4 CT 1395- 1397.) On April 12, 2000,the trial court denied the motion. (4CT 1410.) On June 2, 2000, the trial court denied appellant’s motion to modify the verdictto life in prison withoutparole. (4 CT 1423.) On that samedate, the trial court sentenced appellant to death. (4 CT 1423-1424; 12 RT A4AQ%-, 4697.) Appeal is automatic. STATEMENTOF FACTS A. Guilt Phase 1. Introduction Appellant admitted to the police, his mother, and his uncle that on August 12, 1996, he killed his wife Carmen Henriquez, whowaseight months pregnant, and their two-year old daughter, Zuri, at their apartment in Antioch, California. Appellant attempted to smother Zuri with a pillow and, whenthatfailed, he retrieved a hammerandstruck her head until she died. Appellant cut Carmen’ with a knife, kicked herin the face and head, tied her ankles together and hands behindherback, tied a plastic bag over her head in an attempt to suffocate her and, whenthatfailed, strangled her to death with his hands. The next day, appellant fled to New York where he was apprehended bypolice. * Because many of the witnesses and family members share the same last name, for clarity, respondent refers to most witnesses by their first names. Appellant admitted to police that he robbed two banksshortly before killing Carmen and Zuni, and that he committed a second degree robbery in 1994, where he badly beat his victim. The defense was that appellant killed Carmen, Zuri, and the fetus in an impulsive act of intimate rage because appellant wasafraid that Carmen was goingto leave him. The prosecution’s theory wasthat the killings were premeditated and deliberated; that appellant killed Carmen to stop her from talking to friends and family about his bank robberies, and to avoid being sent backto prison. 2. Prosecution case a. Before the murders In July 1992, appellant lived in San Francisco and married Carmen. (9 RT 2159; 10 RT 2350.) Sometime after, appellant left Carmen and went to Bronx, New York, where he had grown up. (9 RT 2157, 2160, 2389.) Shortly after, Carmen gavebirth to their daughter Zuri. (10 RT 2388-2389.) In July 1995, appellant moved back to California and reconciled with Carmen. (9 RT 2160; 10 RT 2389.) He, Carmen,and Zuri lived in San Francisco where Carmen workedasa dental assistant. (10 RT 2390.) In the summerof 1996, Carmen was pregnant with their second child. Appellant, Carmen, and Zuri moved to an apartment in Antioch, California, where Carmen’s best friend Angelique Foster lived. (9 RT 2161; 10 RT 2390, 2394.) Angelique introduced appellant to Gregory Morton, whoalso lived in the same apartment complex, hoping that Morton could help appellant find a job. (9 RT 2195; 10 RT 2391.) In mid-July 1996, appellant confided in Angelique that his marriage wasvery difficult, and that Carmen was demanding at times. (10 RT 2393.) A few nights later, appellant called Angelique; he was angry andirritated, and asked if she knew Carmen’s whereabouts. (10 RT 2395.) Appellant told Angelique that Carmen wastelling people that he was planning to rob banks. (10 RT 2395.) From July 19 to 22, 1996, Carmen and Zuni stayed with Carmen’s cousin Trenice White. (9 RT 2126-2128.) Carmen seemed abnormal, withdrawn, and stressed. (9 RT 2127.) Carmentold Trenice that appellant wasinto “heavy stuff.” (9 RT 2127-2128.) From about July 22, 1996,to the end of July 1996, Carmen and Zuri stayed with Carmen’s father Harold Jones and her stepmother MonaLisa in Gilroy. (8 RT 1964-1965, 1969- 1970.) Jones found out about appellant’s plans to rob banks andcalled appellant at his Antioch apartment; he warned appellant of the consequencesto his family. (8 RT 1965-1966.) Appellant was defensive and boisterous and said it was his “business.” (8 RT 1966.) On July 26, 1996, appellant and Morton robbed a California Federal Bank in San Francisco and stole $9,054. (12 RT 2739, 2790.) On July 31, 1996,appellant and Morton robbed a Bank of America on Diamond Heights Boulevard in San Francisco and stole $179,397. (12 RT 2739, 2790.) Sometimeafter the robberies, appellant went to his mother’s houseat 120 Rainbow Court in Vallejo. (9 RT 2158, 2163.) He claimed he had a boxing contract and that his manager had given him an advance. (9 RT 2163-2164.) Hetold his mother, Deborah Henriquez, that he had told Carmen about the boxing contract, but she did not believe him and thought he stole the money. (9 RT 2167.) His motheraskedif it was true; appellant said “no.” (9 RT 2167.) The first weekend of August, 1996, Angelique visited Carmen and Zuri at their apartment and spentthe night; appellant was not home. (10 RT 2396-2397.) There was new furniture, a new television, and a new playhouse for Zuri. (10 RT 2397.) The next day, Angelique wentto Morton’s apartment. (10 RT 2397-2398; 12 RT 2788.) Although she suspected that Morton and appellant had committed bank robberies, Angelique assured Morton that she wasnottalking to anyone about“his business.” (10 RT 2398.) That evening, appellant called Angelique. (10 RT 2398.) Appellant asked why his name had been mentioned in her conversation with Morton. (10 RT 2399.) He demanded to know what was going on and what Carmentold her. (10 RT 2399.) Angelique told him nothing. (10 RT 2399.) On or about August 7, 1996, appellant took Carmen, Zuri, his mother, sister, brothers, and a family friend to Disneyland for four days. (9 RT 2131-2132, 2147, 2165, 2168-2169.) They returned to the Oaklandairport on August 11, 1996; that night appellant gave his mother $5,000 wrapped in rubber bandsandtold her that he might be going to New York. (9 RT 2166, 2170.) On Monday, August 12th, between 11:00 a.m. and 1:00 p.m., Heidi Jones, Carmen’s sister-in-law, called Carmen.? (8 RT 1960.) Carmen told her, “Heidi, things are very bad right now.” (8 RT 1960.) Heidi heard appellant yelling in the background; she spoke to two-year-old Zuri, and then Carmen got back on the phone. (8 RT 1961-1962.) While appellant yelled, Carmen reassured Heidi, “Zuri is okay. I'll take careofit.” (8 RT 1961.) Carmenthensaid, “I better get off the phone,” and hung up. (8 RT 1961-1962.) Heidi told Valen that the situation between appellant and Carmen was very bad. (8 RT 1962.) That was the last time Heidi talked to Carmen. (8 RT 1962.) That same day Carmencalled Angelique and they spoke briefly; it was the last ttme Angelique heard from Carmen. (10 RT 2399-2400.) * Heidi was married to Carmen’s brother Valen. (8RT 1960.) b. After the murders On the evening of August 12, 1996, appellant’s mother talked to appellant on the phone;he sounded troubled. (9 RT 2171.) When she asked him what the problem was, appellant said he could nottalk aboutit over the phone. (9 RT 2171.) Appellant went to his mother’s house carrying the same small bag hehad carried at Disneyland. (9 RT 2132- 2133.) He looked a “bit dazed” and “kindof sick.” He was “bobbing” and drunk. (9 RT 2132, 2142, 2147-2148, 2172.) Appellant’s mother,his sister Vanessa and youngerbrothers Francisco and Edwin were home. (9 RT 2174.) Mrs. Henriquez asked what was wrong and asked about Ca. -ren'*""" * whereabouts. (9 RT 2173.) Appellant told her that Carmen had taken the baby to Carmen’s mother’s house. (9 RT 2174.) Appellant threw up and mumbled, “She just doesn’t listen. She just doesn’t listen.” (9 RT 2174.) Whenappellantcried andcalled for Zuri, his mother asked, “Where is Zuri?” He answered, “Where is my Zuri at?” (9 RT 2174.) Appellant said over and over, “She didn’t listen.” (9 RT 2175-2176.) Mrs. Henriquez asked, “Well, what do you mean, she didn’t listen?” (9 RT 2176.) Appellantdid not answer and complainedthat his head hurt. (9 RT 2176.) Mrs. Henriquez suggested he lay down andrest; appellant went upstairs to Ms. Henriquez’s bedroom andcalled “Gregory.” (9 RT 2176-2177.) After learning that Morton wasnot home, appellant went into his brothers’ room and slept on the floor. (9 RT 2177.) Early the next morning, appellant asked his mother, “[C]ould you just stay home?” Mrs. Henriquez said she needed to go to work. (9 RT 2177.) Appellantasked,“[wJell, could — could you just stay — stay home?” and “Ic]an you just be here for me?” Mrs. Henriquez replied, “ I’m always here.” (9 RT 2177.) At 6:00 a.m., appellant took a taxi home. (9 RT 2134- 2135, 2178.) Sometime before 8:00 a.m., appellant called his mother who wasstill home. (9 RT 2178.) Mrs. Henriquez told him to meet her at her workplace to have lunch and talk. (9 RT 2178-2179.) At her 9:30 morningbreak, she called homeandinstructed Edwin totell appellant that she would be home at 4:00 p.m. and they could talk then. (9 RT 2179.) Edwin replied that appellant was there at home with him; appellant got on the phone. (9 RT 2180.) He sounded urgent. (9 RT 2180.) Mrs. Henriquez asked, “Well, whatdid you do? Did you cheat on your wife or something?” Appellant said “No.” (9 RT 2180.) Mrs. Henriquez replied, “Well, if it’s not that, then what more horrible thing could it be that you needto talk to me about?” (9 RT 2180-2181.) When she asked about Carmen, appellant was very quiet. (9 RT 2181.) Mrs. Henriquez said, “Well, you know,I called,” but Carmen wasnot there. (9 RT 2181.) Appellant said, “Well, she’s not going to return your call.” (9 RT 2181.) Mrs. Henriquez asked, “Why? Is she still with her mother?” (9 RT 2181.) Appellant said, “No.” Mrs. Henriquez asked, “Whyisn’t she going to?” He answered, “Well, because she can’t.” (9 RT 2181.) Mrs. Henriquez inquired, “Well, what?” Appellant answered, “Because you know, Carmenis dead. I killed Carmen.” (9 RT 2181.) Mrs. Henriquez asked, “where is Zuri?” Appellant said he killed Zuri too. (9 RT 2181.) Mrs. Henriquez said she would come right home. (9 RT 2181.) Mrs. Henriquez, in a state of disbelief, first went to her sister Chryisse Stewart’s house to think. (9 RT 2182.) She told Chryisse what had happened, and asked her to call Chryisse’s husband Daniel. (9 RT 2182; 10 RT 2348, 2351.) Daniel immediately left work and went home; when he arrived, Mrs. Henriquez told him what had happened. (9 RT 2183; 10 RT 2352.) The two went to Mrs. Henriquez’s house, but appellant was not there. (9 RT 2183; 10 RT 2352.) Daniel went to look for appellant, and found him walking back to the house. (10 RT 2352-2363.) Daniel waved for him to get into the car. (10 RT 2353.) Appellant was “quite cocky” and said, “What’s up?” Daniel answered, “I’m here to support you.” (10 RT 2352-2353.) Daniel drove appellant back to his mother’s house. (10 RT 2354.) Mrs. Henriquez asked appellant what had happened. (9 RT 2184; 10 RT 2354.) Appellant explained that he and Carmen argued. (9 RT 2185.) He said, “She just wouldn’t stop — she talked too much. (9 RT 2185.) She wouldn’t stop talking. She wouldn’t listen.” (9 RT 2185.) Mrs. Henriquez said, “Wait. What happened?” (9 RT 2185.) Appellant explained that the evening they came home from Disneyland, the couple had argued. (9 PT... 2185.) Mrs. Henriquez said, “But everything seemed to be okay between the two of you. What happened?” Heanswered,“It wasall an act. It never was okay.” (9 RT 2185.) He said the next day, Monday, he woke up and heard Carmentalking on the telephone. (9 RT 2185.) Hesaid, “She just, you know,didn’t listen. She just didn’t know howto stop talking about things.” (9 RT 2185.) He said they constantly argued, and he was angry because she wastalking abouttheir business. (9 RT 2185.) Appellant said that at 3:00 in the afternoon, he started choking Carmen and Zuni woke up. (9 RT 2185-2186.) Appellant then changedhis story and said, “[nJo,I hit Carmen with the hammer, and while I washitting her, Zuri got in the way.” (9 RT 2186.) Mrs. Henriquez thought appellant was confused and did not know whathe was saying. (9 RT 2187.) She said, “You needto go to the police. In fact, I will go with youto the police. Because, you know,thisis terrible. So, I will go with you. You don’t have to worry. I will go with you and, you know,you can tell them what you have done.” (9 RT 2187.) Appellantrefused. (9 RT 2187-2188.) Mrs. Henriquez asked where Carmen and Zuri were; appellant said they were in the apartment. Mrs. Henriquez felt sick. (9 RT 2188.) Mrs. Henriquez wentoutside for air; Daniel followed and the twosat on the front steps. (9 RT 2188; 10 RT 2355.) Shesaid, “[appellant] is not going to turn himself in. Heis not going to do that.” (9 RT 2188.) Appellant came outside and joined them. (9 RT 2188; 10 RT 2355.) Appellant said he would not turn himself in because he was on parole and, if he did, his life would be over. (9 RT 2188-2189.) He repeatedly complained that Carmen would notlisten. (9 RT 2189.) Hestated that he did everything for her, that he wastired of struggling and working hard and not getting anywhere. (9 RT 2189; 10 RT 2355.) Daniel encouraged appellant to do the right thing and turn himself in. (10 RT 2355, 2361- 2362.) Appellant stated that he would neverbe in a cage again and would fight so he would not be taken in. (10 RT 2355-2356.) Appellant cried and said he felt bad about what happened. (9 RT 2189.) He said he missed Zuri and wantedhislittle girl. (9 RT 2189.) He laid back and then sat back up and said, “oh, by the way, I robbed a bank.” (9 RT 2189.) Daniel started crying. (9 RT 2189.) Mrs. Henriquezsaid, “I can’t stay here any longer. I have to go. Because you know what,I feellike I’m goingto pass out. | don’t believe what I’m hearing from myears. I can’t believe this. I can’t believe this, Christopher. This is just too much.” (9 RT 2189-2190.) Concermed for Mrs. Henriquez, Daniel told appellant, “Don’t say anymore.” (10 RT 2356.) After Mrs. Henriquez went down thestreet to her girlfriend’s house, Daniel and appellant continued talking. (9 RT 2190;10 RT 2356.) Appellant said he told Carmen he wasgoingto rob a bank. (10 RT 2359.) Carmen,upset, told her parents, who called appellant on the phone and cursed at him. (10 RT 2359.) Appellant said that when the family returned from Disneyland, Carmen continued talking about his business to her friends, which made him furious. (10 RT 2360.) Appellant said he could not believe he killed his own daughter. (10 RT 2357.) He blamed Carmen because she “wouldn’t stop blabbing her mouth.” (10 RT 2357.) Daniel told appellant they could not just leave Carmen and Zuri’s bodies at the apartment. (10 RT 2357.) Appellant responded, “Why not? They are dead.” (10 RT 2357, 2359-2361.) Daniel stood up andsaid, “We have to go to the authorities. I will go find your motherso that you can say good- bye to her, and then we have to go.” (10 RT 2370.) Appellant refused. (10 RT 2370.) Appellant argued that if Daniel spent a few minutes in appellant’s place, he might have more empathy. (10 RT 2371.) Daniel left and went to get Mrs. Henriquez; when the two returned to Mrs. Henriquez’s house, appellant and his bags were gone. (9 RT 2191; 10 RT 2371-2377 ) Mrs. Henriquez wentupstairs to her bedroom;spread across her bed were pictures of her granddaughter, Zuri. (9 RT 2191.) Close to noon, on August 13, 1996, taxi cab driver Niranjan Dhaliwal picked up appellant on Rainbow Court in Vallejo. (8 RT 1955; 10 RT 2386; 10 RT 2449.) Mr. Dhaliwal drove appellant to the United Airlines terminal at the Oakland airport. (8 RT 1955-1956.) c. Thepolice investigation Pursuant to Mrs. Henriquez’s notification of the murders, at 2:15 p.m., on August 13, 1996, Antioch police officers, Orman and Welch, and two other officers drove to appellant’s apartment at 1000 Claudia Court, number 67. (10 RT 2420-2422.) Detective Orman banged onthe front door and announcedthat they were police officers; nobody answered. (10 RT 2422, 2489.) Ultimately, Detective Orman kicked in the door. (10 RT 2422, 2490.) In the west bedroom, wrappedin a blanket, the police found Carmenlaying face down, her ankles were bound and her hands weretied behind her back. (8 RT 1924; 10 RT 2422-2423, 2489.) Sergeant Welch saw a large box with a small hand sticking out; he pulled back a blanket and confirmedit was a little girl, Zuri, who was dead. (8 RT 1903; 10 RT 2423-2424) 10 Later that afternoon, Mrs. Henriqueztold police she thought appellant was going to New York. (9 RT 2193; 10 RT 2372, 2425-2426.) Mrs. Henriquez also gavepolice pictures of Zuri and $4,900 cash, which appellant had given her. (10 RT 2427.) Appellant’s younger brother Francisco told police that about a month before the murders, appellant told him that if Carmen “didn’t stop talking,” he was goingto kill her, and that Carmen “doesn’t know whento keep her mouth shut.” (9 RT 2144-2147.) Whenpolice processed appellant’s apartment for evidence, they found the following: in the living area, there was a knife anda bottle of carpet cleaner on the counter. (9 RT 2029.) There were bloodstains on the air conditioner grate and underneath on the wall, which smelled like the carpet cleaner. (9 RT 2030, 2048-2051, 2078-2079.) There were blood smears and bloody prints on the sofa, a large blood stain on the carpet and pooled blood consistent with where a person’s injured head had lain. (9 RT 2031, 2050, 2102-2103.) There was no blood spatter on the ceiling or on the wall abovesix feet, indicating that the victim wasclose to the ground when struck. (9 RT 2032, 2102-2103.) In the west bedroom, wrapped in a bed cover was Carmen’s dead body. (9 RT 2034, 2047-2048, 2093) The right side of Carmen’s face was swollen and bloody anda plastic bag was near her mouth. (9 RT 2050- 2051.) Under Carmen’s head, there was a pool of blood andbloodstains on the carpet. (9 RT 2034, 2099.) On top of a mattress which was on the floor, was a large box containing Zuri’s body; there was also a pair of child’s underpants, a plastic bag, a plastic playhouse, and a child’s table turned upside down. (9 RT 2034, 2047, 2051-2053, 2077, 2098-2099.) The playhouse and mattress were blood- stained. (9 RT 2034-2035, 2053.) On the west wall there was blood spatter, mostly near the floor, and consistent with a victim lying on 1] the mattress when struck. (9 RT 2034, 2043-2045, 2053, 2078-2079, 2096- 2098.) On the lowerpart of the north wall, there were blood stains. (9 RT 2034, 2044-2045, 2079.) On the east wall, near the bedroom door, there were indentations in the sheetrock about five feet above the floor, consistent with a striking hammer. (9 RT 2052-2053.) Blood dots on the same wall were consistent with a raised bloodied instrumentorfist. (9 RT 2098.) Appellant and Carmen’s marriagecertificate was in the bathroom garbage can. (9 RT 2062.) At the victims’ autopsies, Corporal Barakos collected the telephone cord that bound Carmen’s wrists (9 RT 2063), two blue shoelaces that boundher ankles (9 RT 2064), a knotted plastic bag that was next to Carmen’s face (9 RT 2064-2065), a bloodied hammerthat wasinside the box with Zuri’s body (9 RT 2066-2067), and three boxes of bloodied clothes, toiletries and shoes (9 RT 2067). d. Appellant’s admissions On August 13, 1996, at 11:40 p.m., Port Authority police detective John Trotter and five other officers went to the United Airlines terminalat La Guardiaairport in New York. (10 RT 2430-243 1.) At the jet way, Detective Trotter approached appellant and took him into custody. (10 RT 2432-2434.) Detective Trotter and another officer advised appellantof his Miranda‘ rights. (10 RT 2434-2435.) Detective Trotter asked appellant for consent to search his backpack, black suitcase, and black nylon bag. (10 RT 2437-2438.) Appellant signed a written consent form. (10 RT 2439.) Detective Trotter informed appellant that they arrested him because they were investigating the murderof his daughter and wife in California. (10 RT 2440-2442.) While the police were waiting for appellant’s luggage, appellant admitted that he had argued with his wife, and then killed her and 4 Miranda v. Arizona (1966) 384 U.S. 436. 12 their daughter. (10 RT 2440-2441.) Appellant said that his wife wentto the bank and he wentinto his daughter’s bedroom and suffocated her with a pillow. (10 RT 2441.) At 2:15 a.m., Detective Trotter, in the presence of Detective Loesch, re-advised appellant of his Miranda rights at a nearby police precinct. (10 RT 2444.) Appellant gave the following signed written statement. (10 RT 2441-2442, 2444-2446.) On Thursday,[] July 31st, 1996, at between 11:00 a.m. and 12:00 p.m. at the location of around Glen Park, San Francisco, I entered a bank. I acted alone. I used my wife’s Ford Escort, maroon. I told my wife Carmen [] about the bank robbery plan. She got mad at me andleft and went to her mother’s house. | talked to my wife at length about the robbery. After a few days, I asked my wife if she wanted to take a trip. We did. We went to Disneyland. We spent about six daysthere. I gave my mother $15,000. I spent about $50,000 in jewelry. At Disney I spent aroundfive or $6,000. I took my mom,a friend of hers, Janelle, my two younger brothers, Edwin and Francisco, to Disneyworld [sic]. My mother thoughtI got the money from boxing. Weretumed from Disneyworld [sic] on or about August 11th, 1996, at about 11:00 p.m. I laid low for aboutfive days prior to leaving for Disneyland. Onor about August 12th, 1996,I started arguing with my wife. She left the house to cash a check. After my wifeleft, I suffocated my daughter Zuri, who had been playing. I brought her over to her bed andput the pillow over her face until she was not breathing anymore. | covered Zuri with a sheet completely, and left her there. [W]hen my wife returned, I took the money from her and Just started beating her. She is seven months pregnant. I puta plastic bag over her face and kept it there until she was dead. | dragged her body into my daughter’s room. | left the body of my wife on the floor and covered her with a quilt. 13 I was going to put my daughter’s body in an. . . old cardboard boxto get rid of it. But I decided notto. After I killed my daughter and wife, I went to my mother’s house and stayedthere until 7:30 a.m. Tuesday, when I left. I went back to my house. Both bodies werestill there. Not moved. I picked up my duffel bag and all my clothes, called a taxi, and I went back to my mother’s house on Tuesday, August 13th, 1996, at around 9:30 a.m. I called my mother at work, and told her whatI haddid. She got really excited and said she wouldbe right there. She arrived with her sister’s husband named Daniel. Both of them were talking to me. My mother was very upset. My mother kissed me and walked away. Daniel told meto turn myselfin. About 11:00 a.m. on August 13th, 1996, I called the cab and went to Oakland Airport and purchased a one-way. . . ticket to New York. I came here [New York] to see guys I knew from jail. I purchased a United ticket with a changeover in Chicago. After I killed my wife and daughter, I wrapped a cord around them. I tied her hands and legs. I don’t know whyI tied her up. I only tied my wife up, and not my daughter. (10 RT 2447-2449.) Early that afternoon, Detective Trotter and Sergeant Welchre-advised appellant of his Mirandarights and interviewed him a second time. (10 RT 2449-2451.) Detective Trotter told appellant that his accomplice in California admitted to the police that he and appellant committed two bank robberies together. (10 RT 2452.) Thereafter, appellant admitted that he robbed another bank in San Francisco two to four weeks before the July 31st bank robbery he had already admitted, and that Morton washis accomplice in both bank robberies. (10 RT 2452.) 14 Appellant also told police that he killed his daughter by striking her multiple times in the face and head with a hammer. (10 RT 2453.) He threw the hammerand his daughter’s body into a box in her bedroom. (10 RT 2453.) Appellant stated that when his wife returned home, he immediately beat her, but did not recall striking her with a hammer. (10 RT 2453.) After he killed his wife, he wrapped her body in a quilt. (10 RT 2453.) Then he tied up her hands and feet. (10 RT 2453.) He plannedto move the bodies. (10 RT 2453.) Police asked why hekilled his wife. (10 RT 2453.) Appellant said he wassick andtired of always finding out about things after his wife. (10 RT 2453.) Detective Trotter saw no injuries on appellant. (10 RT 2454.) Inside appellant’s backpack Detective Trotter found $49,574.75 in cash. (10 RT 2456-2457, 2468.) Detective Trotter also found a pair of lady’s tan shoes, appellant’s three Social Security cards, his boarding passes andairline tickets, and a Bank of America credit card. (10 RT 2455-2456, 2467.) Appellant also had three chains, three pairs of earrings, one ring with white stones, a Rolex watch, a Mickey Mouse watch, and a bracelet. (10 RT 2457-2458, 2467-2468.) According to Detective Trotter, appellant was very calm during both interviews; he did not cry or show any outward emotion. (10 RT 2466.) Detective Orman and Sergeant Welch flew from California and met appellantat the jail in New York City. (10 RT 2429, 2492.) Detective Orman read appellant his Miranda rights, which appellant waived, and conducted a taped interview. (10 RT 2429, 2492-2496; 4 Supp.CT of Exhibits pp. 937-976.) > “ASupp.CT”referencesthe “Clerk’s Supplemental Transcript On Capital Appeal Photocopies Of Exhibits Requested By Appellate Counsel.” 15 Appellant acknowledged that he confessed to robbing two San Francisco banks in July with Gregory Morton. (4 Supp.CT 939.) Appellant stated that he told Carmen he was going to commit robbery and that she told him not to. (10 RT 2521-2522.) Carmentold her mother and father, other family membersandfriends. (4 Supp.CT 939.) Appellant said he was concerned that Carmenalso told them that he was abusing her. He was worriedhis parole officer would find out or someone would “snitch him out” to the police. (10 RT 2509-2510, 2517-2518; 4 Supp.CT 940.) Morton also was concerned that Carmen would implicate him (Morton). (4 Supp.CT 940.) After the first bank robbery, Morton told appellant to “try to keep your wife’s mouth shut.” (4 Supp.CT 940-941.) Appellant stated that on Monday morning, August 12, 1996, he woke up mad and confused. (4 Supp.CT 937.) He and Carmen argued “about somestuff,” including hertelling people about the bank robberies. (4 Supp.CT 938-939, 960-963.) Appellant indicated he knew he wasgoing to do something to his daughterand that he first had to separate Carmen and Zuri. (4 Supp.CT 971-972.) Appellant sent Carmen to the bank to cash her disability check. (4 Supp.CT 946, 949-950, 967.) Five minutes after Carmenleft, he went into Zuri’s room andstarted suffocating her. (4 Supp.CT 946-949.) The “baby started crying” so he knew she wasstill conscious. (4 Supp.CT 947.) Appellant went to his room andretrieved a hammerhe kept under his bed. (4 Supp.CT 946-951.) Ten secondslater, appellant returned to Zuri’s room. (4 Supp.CT 947.) Zuri was lying on her back and appellant could see her eyes. (4 Supp.CT 948.) Hestruck Zuni with the hammer; he did not know how manytimes. (4 Supp.CT 947-949.) Appellant thoughtit took a couple of minutes to kill Zuri. (4 Supp.CT 949.) Appellant covered the child and shut the bedroom door. (4 Supp.CT 950.) Almost immediately, Carmen returned. (4 Supp. CT 950-951.) Appellantstood at the door and stopped her, and tookher to the living room. 16 (4 Supp.CT 951.) When he realized what he had doneto Zuri, he ran into his bedroom and looked out the window forpolice, but did not see them. (4 Supp.CT 954, 957.) He returned to Carmen; when she looked into appellant’s eyes and saw blood on him,she screamedandtried to run out the sliding door. (4 Supp.CT 954-955.) Holding a sharp kitchen knife, appellant pulled Carmen awayfrom thesliding door andtried to stab her in the neck andslice her face. (4 Supp.CT 952-957.) Carmen raised her arms to protect her face and appellant cut her arms instead. (4 Supp.CT 956-957.) Appellant told Carmen he had killed Zuri. (4 Supp.CT 952-953, 957.) Appellant knocked Carmen down and pulled her overto the sofa, telling her to calm down, and everything would be fine. (4 Supp.CT 955, 958.) Appellant kicked Carmen in the face and head, causing her face to swell. (4 Supp.CT 958-959.) Appellant told Carmen he loved her and wished that she talked to him about her thoughts. (4 Supp.CT 959.) Carmen told appellant she knew he was goingto kill her and asked him to do it quickly. (10 RT 2518.) Appellant went into the bedroom and brought back a shoelace and telephone cord, which he used to tie Carmen’s hands and feet so she could not escape. (10 RT 2518-2519.) Appellant debated whetherto kill her, and then decided that since he had already killed his daughter, he would kill his wife. (10 RT 2519.) Appellant wentto the kitchen and retrieved plastic shopping bags. (10 RT 2520.) He put a bag over Carmen’s head and wrappedittightly around her neck. (10 RT 2520.) He waited for some time. (10 RT 2520.) The bag did not seem to work, so he stood over Carmen, grabbed her neck and madea tight seal with the bag, and choked heruntil she stopped moving. (10 RT 2520.) He wrapped Carmenin a blanket and movedher into the bedroom with Zuri. (10 RT 2520.) He removedtheplastic bag from Carmen’s head, hoped she was breathing, but she was not. (10 RT 2520.) 17 Next, appellant tried to clean the apartment; he threw towels and blankets over the blood, and used cleaner and tried to wipe bloodoff the wall. (10 RT 2522-2523.) He knew whathe did was wrong andfelt bad; when he killed Carmen, he thought the fetus might survive, but deep down, he knew he waskilling his unborn child. (10 RT 2523-2524.) He thought about torching the apartment. (4 Supp.CT 943.) About 20 minutes later, he went to Morton’s apartmentandtold Morton whathe did. (10 RT 2512; 4 Supp.CT 943.) Morton told appellant to run. (10 RT 2512; 4 Supp.CT 943.) Appellant and Morton wentto appellant’s apartment. (10 RT 2512; 4 Supp.CT 943.) Appellant thought Morton did not see, but smelled the bodies. (10 RT 2513.) e. The autopsies On August 14, 1996, forensic pathologist Dr. Arnold Josselson, conducted three autopsies at the Martinez coroner’s office. (8 RT 1900, 1902.) Inside a large cardboard box, Dr. Josselson founda child identified as Zuri Henriquez. (8 RT 1903, 1906.) She wore no clothes and was wrappedin two sheets; one was a Pocahontas bed sheet with bloodstains and darkerstains resembling stool. (8 RT 1904-1095.) Also inside the box were a claw hammer[with a claw and a blunt face on opposite ends], white material with dark stains resembling stool, and more bedding. All items were blood stained. (8 RT 1903-1905, 1915.) Zuri had suffered a “great deal” of hemorrhaging to her eyes and eyelids consistent with blunt force blowsto the head, or death by strangulation or smothering. (8 RT 1907-1908.) There was also blood around her nose, mouth, and in each ear. (8 RT 1908.) Zuri’s skull, upper face bone, and upper jaw bone werefractured. (8 RT 1914-1916, 1919.) Dr. Josselson posited that the fractures were the result of a “considerable amount of force” such as a blow of a hammer, and 18 that the blowsto the skull caused brain damage and werelethal. (8 RT 1908-1909, 1916.) There also were non-lethal bruises, scratches, and lacerations consistent with being struck with both the claw and blunt endsofthe hammer. (8 RT 1914-1916.) Zuri suffered abrasions andlacerations on the right temple, on both cheeks, above both eyebrows, on the forehead, and on the nose and lowerlip, and skin tears on the nght corner of the mouth and on the lower lip. (8 RT 1914-1919.) Two small bruises on the front of Zuri’s neck were consistent with fingers pressing her neck in an attempt to suffocate or strangle her. (8 RT 1913.) A bruise on her chest was consistent with fingers or a hand applying pressure to smother or suffocate her. (8 RT 1913, 1919.) Dr. Josselson observed scratches up to two inches long on her upperchest, left collar bone, back left hand, and front left wrist, consistent with blows from the claw end of the hammer. (8 RT 1919.) Dr. Josselson testified that the hemorrhaging to Zuri’s eyes and the fingerprint marks on her throat and chest were consistent with the statement “I started to suffocate her. (8 RT 1938-1939.) Pursuant to an internal examination of Zuri’s body, Dr. Josselson found a large area of bleeding on both sides of the scalp, and multiple skull fractures underneath the scalp. (8 RT 1920.) There was “profuse blood over the entire surface of the brain from the bluntforce injury,” as well as blood in the cavities of the brain. (8 RT 1920.) The cause of Zuri’s death wasblunt force injury to her head. (8 RT 1921.) Pursuant to his autopsy on Carmen, Dr. Josselson noted that Carmen was “obviously” pregnant. (8 RT 1924.) Her clothing was bloodstained; her hands were tied behind her back with a white cord connected to a telephone jack, and her feet and ankles were bound with two black and green shoelaces. (8 RT 1922-1924.) Dr. Josselson opinedthat her wrists 19 were bound before death based on bruising around the wrists which indicated that her heart was pumping blood when she wasbound. (8 RT 1932.) There was hemorrhaging on Carmen’s eyelids and eyes, consistent with manualstrangulation. (8 RT 1924.) There were also bruises on the inside ofher lips, hemorrhaging on her gums, bruises beneath herright eyelid, and on hernose, and aboveherright eyebrow. (8 RT 1925-1926.) Her facial injuries were consistent with blunt force trauma from fists or feet, but were notlethal. (8 RT 1931-1933.) Based on the hemorrhaging, Dr. Josselson stated that the blows to the head mostlikely occurred before death. (8 RT 1934-1935.) There were multiple linear scratches on the back of her upper and lower arms, consistent with defense woundspossibly made with the tip of a knife. (8 RT 1926-1928.) Pursuant to an internal examination of Carmen’s body, Dr. Josselson noted two large, non-lethal bruises on both sides of the scalp, and hemorrhaging on the neck muscles indicative of manual strangulation. (8 RT 1928-1929.) Dr. Josselson opined that Carmen died from manual strangulation. (8 RT 1931.) InsideCarmen’s reproductive system was a male fetusin its eight- month gestation, weighing four pounds. (8 RT 1930-1931.) The fetus was completely normal. (8 RT 1930.) The cause of death to the fetus was lack of oxygen dueto his mother’s death. (8 RT 1931.) 3. Defense case The defense argued that the murders were intimate impulsive “rage” killings, and were not deliberate or premeditated. Psychologist Dr. Donald Dutton, a domestic violence expert, testified. (12 RT 2792-2796.) Dr. Duttontestified that based on his studies, there are salient features of an impulsiverage killing, which constitutes the majority of spousal homicides. (12 RT 2798.) The characteristics include a history of domestic violence; a 20 history of separations and reconciliations; and “overkill,” which is a “sort of clumsiness” and “numberofstrikes or blows that are more than 99 ce sufficient to kill a person” “driven largely by an explosion of rage” by the perpetrator. (12 RT 2798-2799.) Dr. Dutton explained that the rage is related to the man’s ego deficiencies developedearlyin life due to being raised in a dysfunctional family. (12 RT 2799-2800.) The man develops a personality flaw where he establishes an unnatural dependencyonhis partner, and masks the dependencyby controlling his partner’s space and time. (12 RT 2807-2808.) Whenhis spouseleavesthe relationship, the man is incapable of withstanding the separation; the overwhelming impact generates into a high incident of the impulsive rage-type spousal homicide. (12 RT 2808.) Dr. Dutton testified that the spousal killer’s behavior in public has norelationship to his behavior in an intimate relationship. (12 RT 2800-2801.) Dr. Dutton testified that prior to an impulsive rage-type spousal homicide, there is a tension buildup where the man is convincedthat his spouseis to blame for his emotional turmoil and the man becomes withdrawn andirritable. (12 RT 2801-2802.) Dr. Duttontestified that just prior to or during the homicidalact, the man hasa spotty recollection or complete amnesiaas to the transpiring events. (12 RT 2802-2804.) Dr. Dutton stated that in the post-homicidalstate, the man is stunned and completely confused. (12 RT 2804.) Therisk rate for spousal homicide is six times more likely where the man fears his spouse’s departure or a marriage breakup. (12 RT 2806-2807.) The cyclical impulsive batterer, who blowsup, tends to be violent predominantly within the home, tends not to have a history of violent criminal behavior and hasa negative attitude toward violence. (12 RT 2823-2824.) He typically does not have the wherewithalto sit and plan methodically. (12 RT 2825.) In contrast, the instrumental batterer has a 21 goal-directed act. (12 RT 2827.) He tends to be violent both inside and outside the home, and hasa history of antisocial behavior, such ascar theft, burglary or violence. (12 RT 2823.) Hebelievesit is acceptable to use violence to get what he wants, and associates with other criminals. (12 RT 2824.) Healso receives pleasure from hurting other people, either physically or emotionally. (12 RT 2825.) These characteristics are important factors for Dr. Dutton to consider in his studies to determine a type of spousal killer. (12 RT 2825-2826.) Dr. Dutton explained there are some overlapsin the characteristics. (12 RT 2826.) Dr. Dutton added that he considers whether the spousal homicideis planned,if strategy is used, and if the killer expresses beforehand that he wanted to kill his spouse. (12 RT 2827-2828.) Dr. Dutton analyzes the methodof killing, such as whether there was “overkill.” (12 RT 2828- 2829.) Dr. Dutton also considers the batterer’s past conduct, such as whetherhe hasa history of violent behavior, if the violence is centered predominantly within or outside the relationship, andif he hasa history of other antisocial behavior. (12 RT 2833.) Dr. Dutton takes into account the batterer’s relationship with his spouse, whothe batterer associates with, his interests, and statements made by close family membersandfriendsof the victim. (12 RT 2831, 2834.) Psychiatrist Dr. Michael Gamble admitted Carmen Jonesinto Alta Bates Herrick Hospital on July 27, 1996. (12 RT 2935-2936.) He treated Carmen and discharged her on July 30, 1996. (12 RT 2936.) Dr. Gamble instructed Carmen with options for follow-up treatment including contact numbers for Kaiser and the Battered Women’s Alternatives. (12 RT 2937- 2940.) 22 B. Penalty Phase 1. Prosecution case a. Other-crimes evidence (1) July 31, 1996—bank robbery On Wednesday, July 31, 1996, at about 11:00 a.m., a Loomis armored car made its routine large delivery of cash into the vault compartmentsat the Diamond Heights branch of the Bank of America in San Francisco. (14 RT 3534-3535.) The ATM bag contained $160,000 in twenty dollar bills. (14 RT 3535.) Ten minuteslater, appellant and Morton, both wearing sweatshirts, Jeans, and knit ski masks, came “barrelingin, yelling.” They ordered everyone to lie down onthe floor. (10 RT 2452; 14 RT 3536, 3538, 3572; 14 RT 3586-3601; 15 RT 3692-3693.) Appellant jumpedoverthetellers counter and ordered teller Mary Chan to lay on the floor, which she did. (14 RT 3572-3573.) He grabbed anotherteller, Natalie, by the arm and threw her onto the floor, and then grabbed Ms. Chan’s left arm and pushed her and orderedher to get “big money”from Natalie’s drawer. (14 RT 3573-3576.) Ms. Chan took the “big money” from the bottom drawer and put it into his bag. (14 RT 3576.) Appellant pulled Ms. Chan to her own station and again to Natalie’s station. (14 RT 3572-3578.) He then ordered Ms. Chan to lay down onthefloor, which she did. (14 RT 3579-3580.) Meanwhile, Morton, holding a gun, approached Loretta Fraser, the acting branch manager, and ordered her, another employee Christian, and a customerto crawlinto the center lobby and lay face down with therest of the customers. (14 RT 3536-3537, 3539, 3541.) Morton yelled, “Branch manager, open the vault.” (14 RT 3541.) Hethen yelled, “[h]urry up. You are stalling. I’m goingto start shooting your employees. Don’t mess with me, lady.” (14 RT 3542.) Ms. Fraser answered, “The keys are in my desk. 23 I’m just going to get the keys.” (14 RT 3542.) Ms. Fraser went to her desk drawer and took out the keys. (14 RT 3542, 3578.) Frightened, she walked in the wrong direction. (14 RT 3543.) Morton yelled and appellant,still holding a gun, redirected and followed Ms.Fraser to the vault. (14 RT 3542, 3545.) Ms.Fraser explained,“[i]t takes two keys to open the vault. I need Christian’s keys.” (14 RT 3544.) The robber answered, “Ty]ou’re stalling, lady. I’m goingto start shooting people.” (14 RT 3544.) Ms. Fraseryelled, “Christian, I need your keys. Get them. Bring them here.” Once Ms.Fraser got the keys, she opened the vault and gave a bag of moneyto appellant. (14 RT 3544.) Hetook the bag and ordered everyone back onto the floor (14 RT 3544); the menyelled “[nJobody move”andleft. (14 RT 3545.) (2) July 26, 1996 — bank robbery On Friday, July 26, 1996, at 10:20 a.m., appellant jumped over the counter at the California Federal Bank at 2600 Ocean Avenue in San Francisco, wearing a black ski mask. (10 RT 2452; 12 RT 2739, 2790; 14 RT 3491-3492, 3512-3513, 3515, 3525, 3582, 3586-3601.) He shouted, “get down on the floor. Get down onthe floor.” (14 RT 3493, 3500, 3515.) Tellers Amanda WooandElsa, and acting managerPatricia Hultinglaid face down onthe floor behind the counter. In the lobby, employee Tanya Ho crawled underher desk. (14 RT 3493, 3500, 3512-3513, 3523, 3525.) Gregory Morton, also wearing a mask, stood at the front door. (14 RT 3494.) Herepeatedly yelled, “[g]et down. 30 secondsbefore| start shooting. More money. Large bills.” (14 RT 3494-3495, 3501, 3518, 3525-3526.) Appellant stood behindthe counter, and holding an object that looked like a gun, demanded that Ms. Woo “[g]et up.” (14 RT 3493.) He ordered her to take the moneyout ofthe drawer, but specifically instructed her not to include bait money. (14 RT 3493-3499, 3516-3517, 3519.) Ms. Woo 24 nervously threw the moneyinto appellant’s bag. (14 RT 3494, 3496, 3498.) Whenappellant grabbed the bait money out of the drawer, Ms. Woo warned him, but he ignored her. (14 RT 3496-3497.) He wanted “more money” and demandedthat she take all the money from the othertellers’ drawers. (14 RT 3497-3498, 3517.) Appellant hit Ms. Hulting’s arm andsaid he wanted big bills and keys to the vault. (14 RT 3500-3502.) He pushed Ms. Wooto the vault. (14 RT 3502, 3503, 3517.) Ms. Woo unlocked and openedthe gate and her drawer inside the vault, but she did not have keys to the other drawers. (14 RT 3503-3504.) She removed money from her drawerandputit into his bag. (14 RT 3505.) Appellant repeatedly demanded,“big bills. Big bills, where are they?” Ms. Woosaid, “I don’t have anymore.” (14 RT 3506-3507, 3509.) He told Ms. Wooto “get down,” and she complied. (14 RT 3507- 3508.) Morton, who wasat the front door, yelled, “[t]ime’s up.” The two men ran out of the bank. (14 RT 3508, 3520.) (3) 1994 robbery of Frank Pecoraro On January 9, 1994, Frank Pecoraro lived at 28th Street and Third Avenue in New York City. (14 RT 3611.) At 4:00 a.m., Pecoraro walked back from the corner grocery store toward his apartment. (14 RT 3611.) On the way, appellant approached from behind. (14 RT 3612, 3615-3618.) Heaskedif the bar on the corner wasstill open; before Pecoraro could answer, appellant punched him in the face and knocked him down flight of metal stairs into a basement area. (14 RT 3613-3614.) He stood over Pecoraro, punched him in the face, kicked him in the body, andrepeatedly said, “[g]ive it up. Just give it up.” (14 RT 3614.) Appellant then took Mr. Pecoraro’s wallet and fled when anothertenant intervened. (14 RT 3615.) As a result of the robbery, Mr. Pecoraro suffered two black eyes. (14 RT 3614-3615, 3617.) 25 (4) 1994 robbery-murderof Jerome Bryant On January 2, 1994, at about 2:00 a.m., New York City Police Officer John Reilly was in his patrol car in the South Bronx. (15 RT 3679.) Officer Reilly was stopped by pedestrians who claimed that someone had been thrown off a bridge. (15 RT 3679, 3743, 3745.) Officer Reilly followed them to the McCoombs Dam Bridge. (15 RT 3679, 3745, 3755.) The bridge was about three stories high. (15 RT 3680.) Underthe bridge, Officer Reilly saw a black male covered in blood anda blue hat. (15 RT 3683-3684, 3745.) The man could not moveor speak, but wasstill breathing. (15 RT 3680.) Officer Reilly could not find the man’s wallet or identification. (15 RT 3680.) An ambulance drove the man to the hospital where he died. (15 RT 3680.) Oneofthe pedestrians described two young Hispanic malesin dark clothing struggling with the victim on top of the bridge. (15 RT 3689-3690, 3746, 3756.) The pathologist who conducted the autopsy on Bryantopinedthat the cause of death was multiple blunt impact injuries to the head and torso resulting in hemorrhagic shock, loss of blood, and neurogenic shock injuries to the brain; the manner of death was homicide. (15 RT 3675- 3676.) (5) Appellant’s admissionsto the 1996 bank robberies and the 1994 robbery- murder On August 14, 1996, at 2:15 a.m. at the Kennedy Airport precinct, Port Authority detective Trotter arrested appellant for the homicides of Carmen and Zuri Henriquez. (15 RT 3691-3692, 3694-3695.) Detective Trotter read appellant his Miranda rights, which he waived. (15 RT 3692.) Appellant admitted committing a bank robbery in San Francisco on July 31, 1996. Appellantstated: 26 I entered a Bank of New Yorkand yelled for everyoneto get on the floor. I jump behindtellers and collected money from about three or four drawers. I acted alone and was in the bank for only about a minute, minute-and-a half. I got the manager to get in to go [sic] into the vault. I took a money bag from the safe, put it into a bag and ran outside the bank. I used my wife’s Ford Escort maroon, which wasparkedbythe back entrance of the bank. I planned this robbery about one week[sic]. I acted as if J had a gun, but I did not. After I robbed the bank, I drove home. Once home,I watched TV to see if it made the news. I counted the money andsaw it wasclose to $200,000. (15 RT 3692-3693.) Appellant also admitted: On October [sic] December of 1993, my brother Timothy’ and J robbed a guy, a male black 6’, in his 40s, at 155th Street, a bridge by Yankee Stadium. Mybrother anda friend threw this guy from the bridge down to me onthestreet below. The guy wasdead and hadnothing on him,so weall left there — weall left him there. (15 RT 3693.) Appellant signed the following statement. (15 RT 3704-3705.) It was me and my brother, Timothy Henriquez, and Pete. We weresitting across the street from the bank. Chemical Bank or Apple Bank near the court house on the Grand Concourse. Wesaw him coming out from the bank. He wasblack, over 40. He wasdressedin dark clothing with, I think, a blue hat. We followed him towardsthe bridge on 161st Street, before 161st Street bridge over Yankee Stadium parkinglot to rob him. My brother Timothy and Pete walked together at the bridge. My brother said something to him. My brother threw him off from the bridge. Hehit the floor. I was below the bridge. Hehit the floor. I search him. I search. There was nothing on [sic] the wallet. I throw them on the floor. I threw it on the floor. We ran towards the Concourse. My brother Michael called me the next day, early in the morning, andsaid, “Look at the news.” Michael knew wedid it. Welaid low for a while. (15 RT 3705.) 27 On August 16, 1996, appellant admitted orally and in writing that he and Morton, the latter armed with a gun, committed both bank robberies. (14 RT 3586-3601.) b. Victim impact witnesses (1) Harold Jones Harold Jonestestified that he had two children; his daughter Carmen, and his son Valen. (14 RT 3624, 3626.) Mr. Jones stated that Carmen enjoyed spending time with her child Zuri and “liked to spread joy with everyonethat she touched.” (14 RT 3625.) At the age of 13, Carmen becamevery involved with the Jehovah’s Witnesses church. (14 RT 3625.) Mr. Jones stated that Carmen was “everything” to him, his “hope” and “heroine.” (14 RT 3625.) She waslaw abiding, “never even got a speeding ticket,” and never used profanity. She was respectful and loyal. (14 RT 3625.) Mr. Jones frequently talked on the phone with and visited Carmen and Zuri; the three were very close. (14 RT 3625.) Zuni washisfirst grandchild and he wanted to help raise her and do things that grandparents do for their grandchild. (14 RT 3626.) He recalled that when heandhis wife were in bed, Zuri would crawl in and lay between them. (14 RT 3626.) Mr. Jones heard about Carmen’s death through Valen. Mr. Jones “blank[ed]” and wasin disbelief. (14 RT 3626.) Hestruggles with the everyday “emptiness,” the pain of loss, and constantly thinks about whether he could have prevented the murders. (14 RT 3627.) Mr. Jones is now even moreprotective of his son Valen and his remaining grandchildren. (14 RT 3627.) (2) Angelique Foster Angelique Fostertestified that in September 1993, Carmen lived with her while pregnant. (14 RT 3629.) That month, Angelique wentto the hospital with Carmen and coachedherdelivery of Zuri. (14 RT 3629.) 28 Angelique took care of Zuri at her day care for almost two years; during that time, Carmen and Zuri often spent the night at Angelique’s. (14 RT 3629-3631.) Carmen and Zuri were very close; in the evenings, Zuri would not let go of her mother. (14 RT 3630.) Zuni enjoyed playing, singing, and dancing, and wasvery affectionate. (14 RT 3630.) Angelique loved Zuri as though she were her daughter. (14 RT 3631.) After Carmen and Zuri’s deaths, Angelique had difficulty sleeping and doing daily activities. (14 RT 3633.) She thinks of Zuri everyday. (14 RT 3633.) Everytime she sees a child at her daycare she thinks of Zuri, a happy child who brightened everybody’s day. (14 RT 3633.) Angelique identified a photo of Carmen and Zuri taken a week before they were killed, and a photo of Zuri taken in the spring of 1996. (14 RT 3633-3634.) (3) Heidi Jones Heidi Jones, Carmen’s sister-in-law,testified that she and Carmen werelike sisters. (14 RT 3636.) Carmen stayed with Heidi and Valen in 1993, and when Zuri was about nine months old, Carmen and Zuri moved in with them. (14 RT 3636.) Zuri wasintelligent and listened to and respected Valen as a father figure. (14 RT 3637.) Heidi and Valen spent a lot of time with Zuri and Heidi thought of Zuri as her own daughter. (14 RT 3637.) Heidi described Zuri as happy and kind: she enjoyed singing and dancing, and was very smart. (14 RT 3637.) At the age of two, Zuri could recite the alphabet. (14 RT 3640.) After working all day, Carmen brought Zuri homeand spent every evening with her. (14 RT 3637.) Even though Carmen was exhausted, Carmen and Zuri wouldeat together, talk, and play. (14 RT 3637-3638.) Carmen rarely went out with friends but, when shedid, she brought Zuri, and included Zuri in everything she did. (14 RT 3638.) According to Heidi, Carmen wasvery smart, goodat her job, and spent time in study and prayer andat the ministry. (14 RT 3638.) At the 29 time Carmen waskilled, Heidi and Carmen were both pregnant, with their babies due a day apart. (14 RT 3639.) Heidi and Valen had previously moved away on a mission, but moved back to California because they wantedtheir children to grow up together. (14 RT 3638-3639.) Heidi and Carmentalked on the phoneat least three times a week, and Heidi always talked to Zuri. (14 RT 3640.) Heidi was horrified when she learned of Carmen’s death;herfirst concern was Zuri. (14 RT 3641.) Thinking Zuri wasstill alive, Heidi thought she and Valen could adopt and care for Zuri. (14 RT 3641-3642.) Heidi also hoped the unborn fetus survived. (14 RT 3642.) After learning that Zuri and the fetus were dead, Heidi went into premature labor; her daughter was born a month early. (14 RT 3642.) Afterwards, Heidi felt guilty and constantly thought about Carmen, Zuri, and Carmen’s unborn baby. (14 RT 3642.) Heidi named her daughter Sienna Carmen Jones. (14 RT 3643.) Heiditestified that she thinks of Carmen and Zuriall of the time, that their pictures are everywherein their home, and that she and Valentell their children about their memories of Carmen and Zuri. (14 RT 3644.) (4) Valen Jones Valen Jones described Carmenas playful and smart, but naive. The two grew up with the Jehovah’s Witnesses faith and started learning the Bible at about six years old. (14 RT 3646.) They have lotof close friends that are Jehovah’s Witnesses and forged a real sense of community and family in their congregation. (14 RT 3647.) Valen and Carmen were taught thatit is important to develop a strong relationship with God and that committing bad or immoral acts would hurt God. Theytried to act accordingto their faith. (14 RT 3647.) Valen stated that he had a close father-daughter type relationship with Zuri. (14 RT 3648.) He recalled going to the hospital when Zuri was born and thinking that Zuri wasthe next generation. (14 RT 3648.) The 30 momentwasvery special because Carmen washis sister and a very close friend. (14 RT 3648.) Valentestified that there are no wordsto express the devastating loss Carmen and Zuri are to the Jones family. (14 RT 3648.) The family was looking forward to the birth of Carmen’s baby boy. (14 RT 3648.) Her murder remains a difficult subject for the family. (14 RT 3648-3649.) Valen cried when his and Heidi’s baby was born. He hadfelt that Carmen and Zuri were his responsibility. He worried how he could protect his newborn daughter from such a horrible fate. (14 RT 3643-3644.) 2. Defense case a. Appellant’s background Defense Investigator Sandra Coketestified that appellant’s paternal grandfather had been committed to a mental institution for seven years, and that appellant’s paternal aunt had also been committed to an institution. (15 RT 3766.) Appellant’s father, Edward, wasplaced in fostercare as a child. (15 RT 3767.) Throughout much of appellant’s life, Edward waspartially disabled and unemployed. (15 RT 3769-3770.) During that time appellant’s family received welfare and other aid payments. (15 RT 3768.) Investigator Coke testified that appellant’s brother, Michael, was placed in a social service setting by the Jewish Child Care Association when hewaseight. (15 RT 3767.) Appellant’s brother Edwin has mental and learning disabilities which entitle him to S.S.I. disability payments. (15 RT 3770.) Investigator Coke discussed prison records for appellant’s father, and appellant’s brothers Michael and Timothy. (15 RT 3772-3774).° ° Appellant’s brother Michael was convicted in 1994 for shooting his girlfriend. (ISRT 3774.) 31 b. Expert witnesses (1) Dr. Donald Dutton Domestic violence expert, Dr. Donald Dutton, testified again at the penalty trial. (12 RT 2791-2869; 15 RT 3811-3900.) Given his expertise, and his review of police and psychiatric reports, and transcripts of various interviewsin this case, Dr. Dutton opinedthat appellant had the common characteristics of a spousal batterer. (15 RT 3812, 3814.) Dr. Dutton pointed to onecharacteristic, e.g., extreme physical abuse in appellant’s family of origin, and noted that appellant’s father shamed appellant’s brother by forcing him to wear a sign in public reading that he had run away from home. (15 RT 3817.) Dr. Dutton noted that rage is almost a “knee-jerk response” to hide the feeling of shame. (15 RT 3817.) Dr. Dutton testified that another characteristic of a spousalbattereris the lack of a secure attachmentbase in the family. (15 RT 3818.) According to Dr. Dutton, appellant’s father was an emotionally unstable heroin addict, and was physically violent. (15 RT 3826.) Appellant’s mother lacked maternal warmth and wasphysically abusive. (15 RT 3818, 3823, 3825-3826.) Dr. Dutton furthertestified that appellant’s family lived in a very violent community with routine drug dealings. (15 RT 3819.) Appellant’s backgroundled to the anger and ragethat he felt in an intimate relationship. (15 RT 3820-3822.) Dr. Dutton opined that appellantfit the profile of the spousal batterer whokills his wife in an “unexpected episodeof violent, impulsive, acting out behavior, which is not well thought out, for no obvious purpose or personal advantage.” (15 RT 3827- 3828.) According to Dr. Dutton, the impulsive rage-type batterer’s private personality is independent of his public personality. (15 RT 3820-3823.) Appellantis capable ofprivate, intimate-rage violence asa result ofhis 32 family abuse, him being shamed, and him having nosecure attachmentbase. (15 RT 3820-3823.) Appellant also is capable of public violence sociologically learned from his father and the neighborhood in which he grew up. (15 RT 3821.) Dr. Dutton opinedthat the violent acts appellant committed against Carmen and Zuri were intimate estrangementkillings committed because appellant was afraid that Carmen would abandon him, and that the killings were not instrumental and goal-directed. (15 RT 3830- 3831.) (2) Dr. Leonti Thompson Based on his review of police reports, transcripts, interviews, and a handwritten statement by appellant, and his interviewsof appellantinjail, Dr. Thompson,a psychiatrist, testified that the most noticeable feature of appellant’s mental reaction was his “continued expressions of remorse. [Appellant’s] disbelief that he had done what he had done. His concerns abouthis religious affiliation.” (16 RT 3945, 3950-3951, 3962-3963.) Dr. Thompsontestified that at each interview, appellant expressed in “a quite genuine fashion... [§] . .. his remorse over having lost self-control.” (16 RT 3953-3954.) Appellant indicated that he always had prided himself for being able to control his temper with his wife who “pushed him”abouthis inability to hold a job and support the family. (16 RT 3954.) (3) Dr. Jonathan Mueller Dr. Jonathan Mueller, a medical doctor trained in psychiatry and neurology, opined that based on his review of psychiatric and police reports, interviewsandletters written by appellant and his brothers, inter alia, the following factors influenced appellant’s development: a clear history of psychiatric disorders and mentalillness on both sides of appellant’s family, and a strong history of violence appellant was exposedto from his family and neighborhood. (16 RT 3990-3994, 4025, 4043.) Dr. Muellertestified 33 that appellant chose his mother, a devoted Jehovah’s Witness,as his role model, andthat he struggled to conduct himself in a manner that would please her. (16 RT 3995.) According to Dr. Mueller, at age 15 or 16, appellant experienced his first auditory hallucination. (16 RT 3998.) Then, when appellant was 16 years old, his father died, and he became depressed and confused. (16 RT 3999.) Nevertheless, according to Dr. Mueller, up until the age of 20 years old, appellant had a very “saint-like, unbelievablelife.” (16 RT 3999.) squeaky clean,” “sort of Dr. Mueller opinedthat the root of appellant’s inability to controlhis emotions, particularly his anger, stems from a violent, explosive, brutal, and intimidating father, and from a mother whohad episodesof anger and punishedherchildren. (16 RT 4002, 4005, 4008-4009.) Dr. Mueller opinedthat appellant lived with great fear of not pleasing his mother and the possibility that she would abandon him. (16 RT 4004-4005.) Dr. Mueller also opined that appellant resembles someone with Intermittent Explosive Disorder, based on the discrete episodes of him becoming violent, and because the violence seemsto be out of proportion to the provocation. (16 RT 4068-4069.) Dr. Mueller opined that appellant fits most closely to the Borderline Personality Disorder which makesit very difficult to maintain intimate relationships. (16 RT 4070.) The hallmarks of the disorder are intense fear of abandonment, extreme reaction to perceived abandonment, rejection orcriticism, greatdifficulty controlling anger, and emotional swings. (16 RT 4069.) Dr. Mueller did not view appellantas a typical Antisocial Personality Disorder. (16 RT 4070.) Dr. Mueller believed that appellant was full of remorse, full of shame, and repeatedly tried “to pull himself out” by turning to the Jehovah’s Witnessesfaith. (16 RT 4075-4076.) 34 c. Character evidence (1) Mrs. Deborah Henriquez Appellant’s mother, Deborah Henriquez,testified that when appellant’s father died in 1988, appellant became withdrawn, but at the sametime he helped her run errands andlookafter his siblings. (16 RT 3920-3922.) His siblings loved and looked up to him; appellant wascaring, sensitive and responsible. (16 RT 3920-3922.) In his teens, appellant was an active participant in the Jehovah’s Witnesses church. (16 RT 3923.) (2) Edwin Henriquez Appellant’s younger brother Edwin Henriqueztestified that appellant washis role model. (16 RT 4079.) Appellant played basketball with Edwin, and helped him graduate from high school while his brothers Michael and Timothy teased him. (16 RT 4079-4080.) (3) Renee Dunn, Charles Dunn,Viola Goldenberg, and Kenneth Henley Renee and Charles Dunn, Viola Goldenberg, and Kenneth Henley knew appellant in New York when he was growing up; they wereall members of Jehovah Witnesses congregations and the community. They described appellant as an exemplary teenager, very devotedto his faith, and someone who wasrespected by the youth in the congregation. (16 RT 4094, 4095-4097, 4112-4117, 4126-4127, 4134-4135, 4137, 4143.) Theytestified that appellant was respectful and helpful to the elders in the community, and that he helped his mother watch his siblings after his father passed away. (16 RT 4128, 4136, 4138.) (4) Modesto Henriquez Modesto Henriquez, appellant’s paternal uncle, testified that he and appellant’s father lived together in a foster home for five years. (17 RT 4238-4240.) Their foster parents were God-fearing, religious, and very 35 strict. They often physically punished Modesto and Edward. (17 RT 4240.) Edward wasconsidered disobedient and left. (17 RT 4241.) When Modesto turned 16, he joined Edward andthey lived on thestreets. (17 RT 4241.) According to Modesto, Edward’s “ purpose wasfor himself,” and whathe could not talk out of you “he physically took . . . from you.” (17 RT 4242.) Edward wasexceptionally goodat stealing; he could “smile in their face, and when they turned their back he would have them down so he could get a hold of their money.” (17 RT 4242.) Modesto and Edwardstarted drinking heavily in their teens. (17 RT 4242.) Edwardstarted using drugs, and they venturedinto prostitution to make money. (17 RT 4243.) Edward wasverbal and charming until he needed drugs or alcohol. (17 RT 4243.) He had a violent temper and would beat someonefor saying the wrong thing and argue over a few dollars worth of drugs. (17 RT 4243.) Edward wentinto the service, where he became more dependent on drugs. (17 RT 4244.) After the service, Edward was in andoutofprison and while on parole, he married Deborah. (17 RT 4244-4245.) The ten times or so that Modesto saw Edward and Deborah,their family washectic and chaotic. (17 RT 4246.) Modestotestified that when Edward was on drugs he was placid and easy going. (17 RT 4246.) But when he needed drugs and alcohol he was verbally abusive, short tempered, loud, and could be violent. (17 RT 4246-4247.) Edward wasnot a nice person andstole from Modesto when Modestotried to help him. (17 RT 4247-4250.) Modestotestified that Edward andtheir sisters were alcoholics and/or mentally ill. (17 RT 4251.) 3. Prosecution rebuttal case Concordpolice officer Tom Lawrencetestified that on August 23, 1998, he wasassigned to the D Module, the administrative segregation unit and disciplinary housing unit, at the county jail. (17 RT 4254-4255.) That 36 day, at 4:00 p.m., Officer Lawrence saw appellant in the recreation area of the D Module. (17 RT 4256.) Atthat time, the officer monitored a conversation between appellant and inmate Joshua Puckett. (17 RT 4257.) Puckett talked about an earlier escape attempt that he and another inmate had attempted. (17 RT 4257.) Appellant said that he also hadtried to escape by kicking out a window in the cell. (17 RT 4257.) Thetwotalked aboutthe layout of the jail facility and discussed the best escape route, ultimately deciding that it was in the recreation area, through steel grate covering the open air ceiling. (17 RT 4257-4258.) They mentioned that the method had beenused successfully in the past. (17 RT 4258.) Appellant and Puckett discussed how the morning and afternoon shifts were covered e€.g., one deputy is stationed in the control booth and one deputy works the floor. (17 RT 4258.) They also noted that at night, there was only one deputy stationed in the booth andthat the deputy left the booth unarmed to perform the floor duties. (17 RT 4259.) Appellant stated that he thought it would be easy for him to kill the deputy during the night watch and escape unnoticed. (17 RT 4259.) Puckett said that the night deputy has a special emergency function key on his radio so he can call for help, andthat appellant’s idea of assaulting the deputy would probably be unsuccessful. (17 RT 4260.) Appellant wasinsistent that it was worth the risk to try and kill the deputy if it would lead to his escape. Officer Lawrence immediately recorded the conversation in writing. (17 RT 4260.) ARGUMENT I. APPELLANT FAILED TO MAKE A PRIMA FACIE SHOWING THAT THE JURY SELECTION SYSTEM IN CONTRA COSTA COUNTY UNCONSTITUTIONALLY UNDERREPRESENTS AFRICAN-AMERICANS Appellant contends that African-Americansare routinely underrepresented in the Contra Costa County jury venires. Heasserts that 37 county officials are responsible for the systematic exclusion of African- Americans from his jury venire, thus violating his federal and state constitutional rights to a jury drawn from a representative cross-section of the community. (AOB 16-47.) Thetrial court properly denied appellant’s motion to quash the jury venire. A. Applicable Legal Principles A criminal defendant has both state and federal constitutional right to a jury drawn from a representative cross-section of the community. (Duren v. Missouri (1979) 439 U.S. 357, 367; People v. Ramos (1997) 15 Cal.4th 1133, 1154; People v. Jackson (1996) 13 Cal.4th 1164, 1194, People v. Horton (1995) 11 Cal.4th 1068, 1087; People v Breaux (1991) 1 Cal.4th 281, 297.) That guarantee mandates that venires, or pools from which juries are drawn,“‘must not systematically excludedistinctive groups in the community and thereby fail to be reasonably representative thereof.’ [Citation.]” (People v. Mattson (1990) 50 Cal.3d 826, 842.) The relevant community for the purpose of determining whetherthe cross- section requirementhas been metis the judicial district in which the case wastried. (Williams v. Superior Court (1989) 49 Cal.3d 736, 744-746, accord, People v. Horton, supra, at p. 1089.) Whena fair-cross-section challenge to the jury selection procedureis made, the defendant bears the burden of establishing a primafacie violation of the fair cross-section requirement. (People v. Massie (1998) 19 Cal.4th 550, 580; People v. Horton, supra, 11 Cal.4th at p. 1088.) In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excludedis a “distinctive” group in the community; (2) that the representation ofthis group in venires from which juriesare selected is not fair and reasonablein relation to the numberof such persons in the community; and (3) that this 38 underrepresentation is due to systematic exclusion of the group in the jury- selection process. (Duren v. Missouri, supra, 439 U.S.at p. 364.) “Resolution of defendant’s claim on appeal presents a mixed question: Application of the constitutional standard is a question of law on whichthis court rules de novo.” (People v. Ramos, supra, 15 Cal.4th at p. 1154.) “With respect to the factual predicates, however, we defer to thetrial court’s findings to the extent they are supported by substantial evidence. (See People v. Breaux, supra, | Cal.4th at p. 297.) (People v. Ramos, supra, at p. 1154.) B. Relevant Proceedings On November20, 1998, appellant moved to quash the jury masterlist and jury venire. (2 CT 360-373.) Appellant claimed there wasconsistent underrepresentation of African-American jurors from the Bay and Delta Areas in Contra Costa County. (2 CT 360-373, 739-740; March 29, 1999 RT; May 17, 1999 RT; June 12, 1999 RT.) Appellant argued that under the three prongtest set forth in Duren v. Missouri, supra, 439 U.S.at p. 364, he established a prima facie violation of a fair cross-section requirement. (2 CT 367.) As to Duren’s second prong, appellant argued that the representation of African-Americans in venires from whichjuries are drawnis not fair and reasonable in relation to the numberofAfrican-Americans in Contra Costa County. Appellant, relying on the “County Population by Race (age 18 and older) and Geographic Area,” prepared by the Contra Costa County Jury Commissioner’s Office, asserted that “the African-American jury-eligible population in Contra Costa County totals 8.1% of the general jury-eligible population. [Fn. omitted.]” (2 CT 362.) Appellant also asserted that “[i]n a [public defender’s] survey of 42 Contra Costa County Superior Court jury panels, beginning in February, 1996, and ending in July, 1997, the number of African-Americans who appeared for jury duty represented only 4.8%— 39 a comparative disparity of 40%,and an absolute disparity of 3.3% of their numbersin the eligible county population. [Fn. omitted.}”’ (2 CT 362.) Appellant noted: A survey conducted by Dr. Robert S. Ross, an expert in areas of survey design, implementation and analysis almost identically duplicated these findings. Dr. Ross’ survey,[], found that African Americans comprised 4.6% of the venire jurors, while they represent 8.4% of the county’s population. This results in an absolute disparity of 3.8 percentage points and a comparative disparity of 45.2%. (2 CT 362-363.) On May17, 1999,thetrial court received into evidence the transcripts considered in People v. Currie (2001) 87 Cal.App.4th 225° andthe exhibits received and considered bythetrial court in that case. (May 17, 1999 RT 29-30, 45, 75; 1 Supp.CT (Currie); 2 Supp.CT (Currie), 3 Supp.CT ’ The “absolute disparity” test “measures representativeness by the difference between the proportion of the population in the underrepresented category and the proportion ofthose personsin the [jury pool] in the underrepresented category. The “comparative disparity” standard is more complex, and the disparity is obtained by using the formula: (A-B)/ A x 100 A represents the percentage of the community that makes up the cognizable group, and B represents the percentageofthe jury venire which is composedofthe cognizable group. [Citations omitted.] (People v. Breaux, supra, | Cal.4th at p. 297,fn. 3.) ® In Currie, the First District Court of Appeal rejected the defendant’s claim that the underrepresentation of African-Americansin the Contra Costa County jury venire was due to the systematic exclusion ofthis groupin the jury-selection process. (People v. Currie, supra, 87 Cal.App.4th at p. 238.) 40 (Currie). Assistant Jury Commissioner Sherry Dorfman testified as an expert in jury summoningprocedures,statistics, jury population sampling and methods for determining jury representativeness. (May 17, 1999 RT 118, 175, 182, 187, 190, 191.) Based on a study done in 1999, Ms. Dorfman testified that the “absolute difference between the percentage of African-Americans appearing in the Contra Costa jury venire” (7.24% based on the preliminary report), as compared to the 1997 population estimates for that population, age 18 and older (8.34% based on the U.S. Census Bureau estimates), was 1.1 percent. (May 17, 1999 RT 192-193.) Ms. Dorfman testified that the comparative disparity for African-Americans, using the 1997 population census estimate, was 27.24. (June 1, 1999 RT 476.) Ms. Dorfman alsotestified that the absolute disparity between the percentages of African-Americans appearing in the Contra Costa jury venire as compared to the 1997 population estimates by the U.S. Census Bureau for the African-American population age 18 and overthat are citizens is 2.71 percent. (June 1, 1999 RT 433, 437.) Ms. Dorfman expressed concerns about the method used in Dr. Ross’s study, which showeda significantly higher underrepresentation in the Currie case. (May 17, 1999 RT 203.) She pointed out that Dr. Ross’s survey was conducted by telephone andthat the surveyors attempted to “reconnect with jurors who had previously appeared.” Ms. Dorfman noted that persons from the minority community tend to fall into the lower income level makingit more likely they are not available by phone, and tend to change addresses more frequently. (May 17, 1999 RT 203-204.) <1 Supp.CT (Currie),; 2Supp.CT (Currie); 3 Supp.CT (Currie)” references “Clerk’s Supplemental Transcript of the Record of Proceedings held in the Currie Case.” 4] On Monday, May 24, 1999, Dr. Michael J. Sullivan filed a declaration in opposition to appellant’s motion to quash the jury master list and jury venire. (2 CT 690-734.) Dr. Sullivan, specializing in the application of statistical surveying to business, engineering andpublic policy decision making, declared he designed, pre-tested and implemented the survey of the membersofjury venires used to conduct the Jury Commissioner’s survey on which Ms. Dorfman based her opinion. He declared that “[t]he survey ofjury venires complied with the measurements protocols currently used by the United States Census for measuring population race and ethnicity. . . to ensure measurements from the venire survey and the United States Census for Contra Costa County are comparable.” (2 CT 691.) He declared that “fa]s an expert in the field of population surveys,” he opinedthat “the procedure used in the 1999 Contra Costa County juror census . . . exceeds the acceptable standardsfor ensuring the Contra Costa County jurorracial and ethnic demographics and theresults are the type of informationthat would be reasonablyrelied upon for policy and planning purposes.” He also explainedthebasis for his opinion. (2 CT 692 -695.) Dr. Sullivan criticized the Public Defender’s survey offeredin the Currie case, which was based on observations by Public Defenders in the Richmond/Bay Judicial! District, as having “none of the measurement protocols nor methodological controls that are necessary to obtain an accurate estimate ofthe racial composition of the groups under study.” (2 CT 695.) Dr. Sullivan also criticized Dr. Ross’s telephone survey '0 This Public Defender’s survey consisted of deputy public defenders’s observationsofthe racial composition of 42 superior court jury panels from February 1996to July 1997. (See People v. Currie, supra, 87 Cal.App.4th at p. 234,fn. 3; see 2 Supp.CT pp. 710-796 (Currie) [Clerk’s Supplemental Transcript of the Record of Proceedings Held in the Currie Case].) 42 sampled jurors were ever interviewed, the team was unable to find 40% of the people they were seeking to interview, and another 15% refused to be interviewed once they were found. Dr. Sullivan opined that Dr. Ross’s sample had a significant potential for “non-responsebias.” (2 CT 696.) Dr. Peter Sperlich, a defense expert in statistical analysis ofjury selection issues who had qualified as an expert in the Currie case, testified that he did not consider Ms. Dorfman’s study to be an adequate survey of the potential jurors in the superior courts in Contra Costa County. (June 1, 1999 RT 547-548.) Dr. Sperlich posited that Ms. Dorfman’s drawn sample for two and one-half months did not accountfor seasonalfluctuation of attendancefor a full year census. (June 1, 1999 RT 547-550.) Dr. Sperlich expressed concern about the general methodology of Ms. Dorfman’s study, such as the design of the questionnaire and the possibility of key punch error. (June 1, 1999 RT 555- 566; June 2, 1999 RT 588-590.) Dr. Sperlich could not offer his opinion regarding Dr. Ross’s survey becausehe was not familiar with the details of that study. (June 2, 1999 RT 601-602.) The trial court opined Dr. Ross’s study wasthe mostreliable study submitted to date. (June 2, 1999 RT 626.) Thetrial court, in addressing the second Duren prong,stated its preference for the comparativedisparity test over the absolute disparity test. The court stated there was an “underrepresentation” of African-Americans and thatit “seemsstatistically significant.” (June 2, 1999 RT 704-705.) The court, however, questioned, “is it of such a degree that it rises to a constitutional level?” (June 2, 1999 RT 704.) The court conflated its analysis of the second and third prongs and continued to discuss in-depth the third prong, regarding whether there was an underrepresentation due to systematic exclusionin the jury selection process. (June 2, 1999 RT 706-712.) The court commented: 43 _... Apparently according to Bell, it doesn’t mean an ongoing statistical underrepresentation. That apparently is not enough to satisfy those two prongs. But what would satisfy those two prongs? What would be the probable causeofthe disparity, and something that’s constitutionally impermissible? .... (June 2, 1999 RT 713.) As to Duren’s third prong, appellant argued that there was “systematic exclusion” because: (1) “the source lists used to prepare the jurorlist from which venires are drawn do not fairly represent the African-American jury eligible population of Contra Costa County”; (2) of the failure to purge duplicate names;(3) of the failure to adequately follow-up on potential jurors summoned whodonotrespond; (4) of the “historical pattern of residential and employmentsegregation of the county’s African-American population in the East and West endsofthe county,” and “the lack of viable public transportation from East and West county”to the Superior Court in Martinez; and (5) the “overwhelmingly all-white workforce” in the Martinez courthouse “furthers a[] historic perception of minorities in East and West county that they are not welcome, and will be treated poorly if they travel to Martinez in central county to serve as jurors.” (2 CT 363, 368-372; March 29, 1999 RT 38-39.) As to defense counsel’s argumentthat all capital cases involving African-American defendants should be tried in Richmond,insteadofat the Martinez Superior Court (June 2, 1999 RT 635-636),thetrial court stated'’: The Jury Commissioner’s year-end reports show that the residents of the Bay District, Richmond,at least in 1998, that’s whatI am lookingat right now, 43 percent of those who got a jury summonsin that judicial district didn’t show up, orfailed to '! Defense counsel argued that the demographics, geographics, and distance between the locations where the highest numberof African- Americansreside, and the Martinez Superior Court results in systematic exclusion. (June 2, 1999 RT 675, 680.) 44 appear, which is the highest of the four judicial districts. The Delta District, which is Pittsburg, was 30 percent, approximately. Mt. Diablo 20 percent, and Walnut Creek 15 percent. So the highest rate of not showing up for the summonsis folksliving in the Bay Judicial District, getting a summonsand cominghere. They also, residents of that district, also have the highest rate of failing to appear, according to this Jury Commissioner’sreport, in the court house in their own district. [{].... [{] In Bay. Getting a summonsin Bay andthen going downto the Richmondcourt houseit’s 42.5 percent, according to their report, whichis the highest of the four districts. And at least in the 1998 report the failure-to-appear rates are comparable, that is the rate of Bay residents coming here, or not coming here, is about the same as going to their own court. Same in Walnut Creek. The rate at which Walnut Creek residents come to Martinezis about the same as they showup to their own court house... . (June 2, 1999 RT 646-647.) The trial court later explained: Thestatistics wouldtell usit’s not geography and transportation. Appearsthat, as I pointed out during the arguments of Counsel, that the failure-to-appear rate is the same for Bay residents, roughly the same for Bay residents, when they are summoned to come to Martinez as when they are summoned to come to Richmond. Andthat’s going back to about 1993. It’s roughly the same. Andit’s quite high. (June 2, 1999 RT 706.) .... SO it’s not clear on the evidence before me whatis causing the folks from the Richmond [D]istrict, the Bay District, excuse me,to fail to appear in such a high rate here in Martinez, or even in their own homecourt, so to speak. Statistics before me suggest it’s not transportation... . But if the burden is for the defense to demonstrate that transportation is the issue I don’t think that they have done that. I don’t think they have carried the day there. (June 2, 1999 RT 708.) 45 Asto defense counsel’s claim that the county’s failure to conduct “more assertive or aggressive follow up” resulted in systematic exclusion (June 1, 1999 RT 640-641), the court commented: _... [I]t seemsto me thatif this additional follow upis to be doneoris the crux of the problem that it would, just off the top of my head, would need to be concentrated in the Richmond-the Bay District. (June 2, 1999 RT 661.) Rejecting defense counsel’s suggestion that the source list was the cause of underrepresentation of African-Americanson the jury panels in Cunisa Costa County (June 2,1999 RT 666), the trial court noted: I have to say I really can’t say that there was any particular evidence that source list in, as you said, in this county was underrepresentative. There was an opinionthat, by Dr. Fukurai, as I recall, that — apologize, I’m not sure whether it was to both the DMV andRegistrar of Voters, or just one, but suggesting that minorities are underrepresented on Department of Motor Vehicle lists and/or Registrar of Voter lists. But really I have to say I don’t think that’s enough for meto find that there is a source list problem in this county, that the originallists used is somehow problematic. AndI say that conscious of whatI think is really the ultimate turning point in this case, which is the burden of proof, and whohasit. And whohasto establish what. And it seems that that’s where Morales and Bell have taken us. The California Supreme Court cases that have seemed quite clearly to suggest that most of the burden, the laborin thesecases, seemsto be with the defense. So then having said that I don’t see that there’s any issue in regard to the sourcelist. (June 2, 1999 RT 696.) The court later commented: And I knowattorneys have expressed reservations about telephonelists, PG&E lists, or Pac Bell lists, or even PG&Elists, that sort of thing, that they too present their own problems. (June 2, 1999 RT 711-712.) 46 The trial court concluded that “as set forth by the Supreme Court of this state, which I’m boundto follow, the defense has not met their burden” to demonstrate a violation of the fair cross-section requirement. (June 2, 1999 RT 714; 2CT 739-740.) C. Appellant Has Failed To Establish a Prima Facie Violation of the Fair-Cross-Section Requirement Given that African-Americans are a cognizable group within the community for purposes of representative cross-section analysis, appellant hassatisfied the first prong of Duren. (People v. Ramos, supra, 15 Cal.4th at p. 1154; People v. Breaux, supra, | Cal.4th at p. 298; Williamsv. Superior Court, supra, 49 Cal.3d at p. 742.) Appellant fails, however, to . satisfy the second and third prongs of the Durentest. To establish a primafacie violation of the fair cross-section requirement, “[t]he second prong ‘requires a constitutionally significant difference between the number of membersof the cognizable group appearing for jury duty and the numberin the relevant community.’ (People v. Ramos (1997) 15 Cal.4th 1133, 1155.)” (People v. Burgener (2003) 29 Cal.4th 833, 859.) In this case, as in Currie, the trial court relied upon Dr. Ross’s survey whichindicates that about 4.6 percent of the residents who appeared for jury service identified themselves as African American. (June 2, 1999 RT 698-700; 705-706.) The court relied on‘a “low eight percent” figure for Contra Costa County residents whoidentified themselves as African-American or African-American and someother race and are overthe age of 18, as did the court in Currie (utilizing 8.1 percent see Currie p. 234, fn. 2), thus, resulting in an absolute disparity of 3.5 percent. Courts have held that numbers much higher than those in this case were insufficient to show disparity. In People v. Bell (1989) 49 Cal.3d 502, the defendant alleged that there was an underrepresentation of African- 47 Americans in Contra Costa County. There, this Court used the absolute disparity test in analyzing whether the second prong of Duren wassatisfied. The evidence showedthat African-Americans constituted about 8 percent of the adult population andthis distinctive group constituted only about3 percentof the prospective jurors in the county. (/d. at p. 527.) Thus, the record showed an absolute disparity of 5 percent. Although its ultimate ruling did not turn on this issue, this Court stated “it does not appear that a disparity of this degree renders the representation of Blacks on jury venires less than fair and reasonable in relation to their numbers in the general nonnlatinn of Contra Costa County.” (Jd. at p. 527.) That recognition is persuasive authority that such a disparity is insufficientto satisfy the second prong of Duren. (See also People v. Ramos, supra, 15 Cal.4th atp. 1156 [“a range of absolute disparity between 2.7 and 4.3 percent and of comparative disparity between 23.5 and 37.4 percent [is]. . . “generally within the tolerance accepted”], citing United States v. Pepe (11th Cir. 1984) 747 F.2d 632, 649 [7.6 percent absolute disparity insufficient], United States ex rel. Barksdale v. Blackburn (Sth Cir. 1981) 639 F.2d 1115, 1126- 1127 [absolute disparity ranging from 4.5 percent to 11.5 percent insufficient], United States v. Maskeny (Sth Cir. 1980) 609 F.2d 183, 190 [less than 10 percent absolute disparity insufficient], Swain v. Alabama (1965) 380 U.S. 202, 208-209 [10 percent absolute disparity found inadequate]. Based onthis authority, appellant has failed to establish Duren’s second prong. Not surprisingly, appellant eschews the 3.5 percent absolute disparity in favor of a comparative disparity of 43 percent. (AOB 37.) Appellant asserts “[w]here, as here, the cognizable group comprisesless than 10% of the population, absolute disparity cannot be controlling.” (AOB 38-39.) Thecasescited by appellant are not helpful to defense. (United Statesv. Maskeny, supra, 609 F.2d at p. 190 [court declined to focus on comparative 48 or standard deviation disparity and found the absolute disparities shown do not show a constitutional violation]; United States v. Chanthadara (10th Cir. 2000) 230 F.3d 1237, 1256 [recognizedlimitations of both absolute and comparative disparities]; Jefferson v. Terry (N.D. Ga. 2007) 490 FSupp.2d 1261, 1284 [same]; see also United States v. Rogers (8th Cir. 1996) 73 F.3d 774, 776-777 [same]; People v. Bell, supra, 49 Cal.3datp. 528, fn. 15 [“it is far from clear” that a 5 percent absolute disparity (50 percent comparative disparity) is sufficient, and no jurisdiction has so held]. In People v. Bell, supra, 49 Cal.3d at p. 527, fn. 14, this Court acknowledged that “we have in the past declined to adopt anyonestatistical methodology to the exclusion of the others. [Citation].” This Court, however, stated: The Supreme Court used an absolute disparity statistical analysis in Duren. (439 U.S. at p. 367 [].) Many federal courts have approvedthe absolute disparity test asthe statistical method of choice by which to make out a primafacie fair cross- section violation. (See, e.g., United States v. Cecil (4th Cir. 1988) 836 F.2d 1431; United States ex. rel. Barksdale v. Blackburn (5th Cir. 1981) 639 F.2d 1115, 1121-1122.) Use of more complex tests than the absolute disparity method — e.g., the “statistical significance”test or the “comparative disparity” test — has beencriticized as distorting the proportional representation when the group allegedly excludedis very small. (See United States v. Hafen (1st Cir. 1984) 726 F.2d 21, 24; United States v. Musto (D.N.J. 1982) 540 F. Supp. 346, 355-356; see also Kairys, supra, 65 Cal. L. Rev. at p. 795, fn. 103.).... (See also United States v. Hafen (1st Cir. 1984) 726 F.2d 21, 24; United States v. Musto (D.N.J. 1982) 540 F.Supp. 346, 355-356 [minorities constituting 13 percent and 5.3 percentof eligible population; comparative disparity test rejected]; see also Kairys, Jury Representativeness (1977) 65 Cal.L.Rev. 776, 795, fn. 103.) 49 In any case,statistical disparity alone is insufficient to establish systematic exclusion. Appellant must also show that the disparity is the result of a constitutionally impermissible feature of the jury selection process. (People v. Burgener, supra, 29 Cal.4th at p. 857; Peoplev. Bell, supra, 49 Cal.3d at p. 529; People v. Howard (1992) 1 Cal.4th 1132, 1160.) Thetrial court here found that the criteria applied by the jury commissioner on its face was racially neutral and that the manner in whichthe criteria was applied is not the probable causeof the disparity and is not constitutionally impermissible. (June 2, 1999 RT 712-714.) When, as here, a county’s jury selection criteria is neutral with respect to race, ethnicity, sex, and religion, moreis required to shift the burden to the People. A defendant cannot carry this burden with just statistical evidence of a disparity. (People v. Burgener, supra, 29 Cal.4th at p. 857.) The defendant must identify some aspect of the mannerin whichthosecriteria are being applied thatis the probable causeof the disparity andthatit is constitutionally impermissible. (People v. Massie, supra, 19 Cal.4th at pp. 580-581; People v. Howard, supra, | Cal.4th atp. 1160; People v. Sanders (1990) 51 Cal.3d 471, 492; People v. Bell, supra, 49 Cal.3d at p. 524.) Therefore, evidence that race/class neutral jury selection processes may nonetheless operate to permit the de facto exclusion of a higher percentage ofa particular class of jurors than wouldresult from a random drawis insufficient to make out a primafacie case. (People v. Breaux, supra, | Cal.4th at p. 298; People v. Sanders, supra, 51 Cal.3d at pp. 492-493.) Appellantrecites some of the same argumentsas the causeofthe underrepresentation that appear in Currie (AOB 42-46), where the court relies upon Bell. The trial court here determinedthat it was bound bythe holding of this Court in Bell, that “defense has not met their burden.” (June 2, 1999 RT 714.) 50 The court in Currie rejected appellant’s argumentthatall felony trials occur in Richmondin orderto satisfy the fair cross-section requirement: The failure-to-appear rate for Richmond jurors remains constant, whether jurors are summonedto appear at the local Richmondcourthouse or at the superior court in Martinez. In fact, to obtain sufficient jurors to operate the local Richmond courts, the county has been required to increase the frequency of summoning local Richmondresidents for service. Appellant paradoxically assails the county for doing so, suggesting that local Richmondresidents, whoare likely to be African- Americans, would be less willing to serve given the greater frequency upon which they are summoned. Appellant however presents no evidence to support such speculation. Even if he were correct, such a phenomenon would not demonstrate the constitutionally impermissible ““systematic exclusion’” of African-Americans allegedly caused by the county’s jury selection process. (Bell, supra, 49 Cal.3d at p. 530.) (Currie, supra, 87 Cal.App.4th at p. 237.) The court in Currie also rejected appellant’s argumentthat public transportation be provided for African-Americans to commute from the east and west county to the Martinez Superior Court. (AOB 43.) For example, appellant suggests Contra Costa County might reduce the high failure-to-appear rate among African- Americanjurors by instituting such affirmative measures as “qnsuring direct transportation” from the west county tothe site for the trial of the case in Martinez. Even the majority opinion in People v. Buford (1982) 132 Cal.App.3d 288[], the only appellate decision crediting a defendant with making out a prima facie case as to Contra Costa County venires, rejected a similar suggestion. (See Buford, supra, at p. 299 [“And wecertainly do not suggest that a county should engage in race conscious selection procedures in order to assure representative juries.”].) Contra Costa County is not constitutionally required— and maynot even be constitutionally permitted—to implement racially disparate practices such as affirmative action quotas, busing, or other race-based programsin orderto correct any underrepresentation caused by factors unrelated to exclusionary features of the jury selection process: “The Sixth Amendment 5] forbids the exclusion of membersof a cognizable class ofjurors, but it does not require that venires created by a neutral selection procedure be supplementedto achieve the goal of selection from a representative cross-section of the population. (United States v. Cecil [(4th Cir. 1998)] 836 F.2d 1431, 1447-1449.” (Bell, supra, 49 Cal.3d at p. 530, italics omitted.) (People v. Currie, supra, 87 Cal.App.4th at pp. 236-237.) The court in Currie further dismissed appellant’s argumentthat a more aggressive follow-up is required to resolve the underrepresentation of African-Americans on the jury panels in Contra Costa County: ... [T]here is no merit in appellant’s suggestion that the county was 1vueired to conduct more extensive follow-up of African- American jurors who do not appear, in orderto coerce their attendance. The county currently takes reasonable steps to follow up and urge attendanceforall jurors. A more coercive and harassing approach, which singles out African-American jurors, would seemingly raise serious questions of fairness and discrimination. (Currie, supra, 87 Cal.App.4th p. 237, fn. 5.) '? In People v. Buford (1982) 132 Cal.App.3d 288, the appellate court reversed the defendant’s burglary conviction, holding that he had established a prima facie case of systematic exclusion in the jury-selection process. (/d. at p. 290.) Defense counsel hadpresentedstatistical disparities and suggested “a plausible systematic explanation for some degree of disparity, i.e., the informal procedure by which Contra Costa County goes about excusing prospective jurors from service,” to establish a primafacie case under Duren. (Jd. at p. 298.) The burden then shifted to the prosecution to provide “evidence of explanation and justification, so as to enable the court to determine whether the county is doingall that can reasonably be expected to achieve the constitutional goal mandated by Wheeler.” (Id. at p. 299.) As shown above, appellant did not present evidence of“a plausible systematic explanation for the disparity subject to control by the county.” (/d.at p. 299, fn. 5.) Instead, appellant basically raises arguments that already have been rejected by this Court in Currie and Burgener. Therefore, Buford is distinguishable. 52 ( Appellant in this case also argues that the use of two sourcelists from the DMVandvoter’s registration was an improperpractice of systematic exclusion. (AOB 43-45; June 1, 1999 RT 488-490; June 6, 1999 RT 666, 696, 711-712.) This Court has found, however,that use of voter registration lists and DMV records,“‘shall be considered inclusive of a representative cross-section of the population, whereit is properly nonduplicative.’ [Citation.]” (People v. Burgener, supra, 29 Cal.4th atp. 857.) Assistant Jury Commissioner Dorfman specifically testified that the source lists are purged to eliminate duplicity of names. (June 1, 1999 RT 488-490.) oe. In the final analysis, appellant has established nothing more than statistical evidence of disparity; he has not associated the underrepresentation of African-Americans with any constitutionally impermissible feature of the Contra Costa County jury selection process. The procedures employed by the county to summonandselect persons for Jury service are, according to the undisputed evidence, entirely race-neutral. “Statistical underrepresentation of minority groupsresulting from race- neutral . . . practices does not amount to “systematic exclusion’ necessary to support a representative cross-section claim. [Citations.]” (People v. Currie, supra, 87 Cal.App.4th at p. 237; see also People v. Ochoa (2001) 26 Cal.4th 398, 427-428, disapproved on another groundin People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14.) Appellant has failed to satisfy Duren’s third prong. Accordingly, he has failed to make a prima facie showingthat the jury selection system in Contra Costa County unconstitutionally underrepresents African-Americans. 53 Il. THE TRIAL COURT PROPERLY RULED THAT THE PROSECUTOR COULD CROSS-EXAMINE/REBUT APPELLANT’S EXPERT WITNESS WITH HIS UNCHARGED ROBBERY-MURDER Appellant contendsthat the trial court erred by ruling that the prosecutor could introduce his uncharged 1994 robbery-murderto cross- examineor rebut the defense witness’s testimonythat appellant killed Carmen and Zuri in an impulsive act of intimate rage. (AOB 48.) Appellantclaimsthatthe trial court’s ruling precluded him from “putting on critical evidence in his own defense.” (AOB 48.) A. Relevant Proceedings 1. Appellant’s in limine motion to exclude evidence of the 1994 robbery-murderof Jerome Bryant On September 10, 1999, the prosecutorstated that she did not intend to introduce the 1994 New York robbery-murder of Jerome Bryant in her case-in-chief, but “depending on which path the defensetravels in the guilt phase,” she might introduceit in rebuttal. (2 RT 499-501.) On October 21, 1999, defense counsel movedto exclude evidence of the 1994 robbery-murder. Counsel argued that the evidence was inadmissible character evidence under Evidence Codesection 1101, subdivision (a), substantially more prejudicial than probative under Evidence Code section 352, and violated hisright to a fair trial under the federal and California Constitutions. (3CT 760-766; see also 3CT 790.) On October 28, 1999, the prosecutor explained that the defense had notyet provided discovery regarding his expert witness, Dr. Donald Dutton, so she could not determine if the witness would “open[] the door”for her to cross- examine/rebut the witness with the 1994 robbery-murder. (3CT 792.) On December7, 1999, defense counsel requested an ex parte hearing regarding Dr. Dutton’s anticipated testimony. Counsel indicated that he did 54 not want to present Dr. Dutton as a witnessif the prosecution intended to impeach him with the 1994 robbery-murder. (11 RT 2544-2545; 3CT 929.) Defense counsel offered that Dr. Dutton was an expert on the subject of domestic violence, the personality of male batterers, and the causes for wife assault and femicide. (11 RT 2546-2547.) Dr. Dutton wouldtestify that he reviewed appellant’s statements, his background and development, and pertinent police reports, and would offer his expert opinion regarding appellant’s mental condition and how itaffected his conduct on the day he killed Carmen and Zuri. (11 RT 2550.) Counsel argued that Dr. Dutton’s opinion would help the jury reach their own conclusion regarding appellant’s mental state; e.g., whether he premeditated and deliberated Carmen’s and Zuri’s killing. (11 RT 2550.) 2. 402 Hearing That same day, the trial court held an Evidence Code section 402 hearing on the matter. Dr. Dutton testified that the prominent characteristics of spousal homicide for cyclical, impulsive-type personalities are a history of domestic violence, and a series of separations and reconciliations. Also prominentis “overkill” where so muchtension and rage builds up in the intimate relationship that the man releases more violence than is required to kill his spouse, and afterthe killing is in a “disassociated state,” confused, and has a “spotty” memory and sometimes complete amnesia. (11 RT 2561-2562.) The man’s intimateragerelates to “early-occurring factors that transpire between [him] and[his] parents,” his upbringing, his learning how to deal with marital conflict, and his ability to control impulsive events, such as his impulse triggered by a perception that his spouseis leaving him. (11 RT 2560, 2572.) Dr. Dutton testified that abandonment, where the woman plansto leave or doesleave the relationship, is highly related to intimate rage and spousal homicide. (11 RT 2571-2572.) This is due to an egodeficit that 55 makesit absolutely essential for the man to have his spouse in place, making her the cornerstoneof his identity. When he perceivesthat his spouseis leaving him, his perception “creates a state of terror that translates instantly into rage.” (11 RT 2572-2573.) Based on his review of material relevant to this case, and his work and expertise, Dr. Dutton opined that appellant’s killing of Carmen and Zuri had the characteristics of intimate rage arising out of appellant’s fear that Carmenwasleaving him. (11 RT 2565-2566, 2569, 2600.) Dr. Dutton explained that his opinion was consistent with the disorganized crime scene, the use of every-day household items for weapons, appellant’s confusion and shifting ability to recall elements of the crimescene, his difficulty with the “temporal relationships of the crime scene,” the amountof violence and “overkill,” and appellant’s feelings about Carmen and Zuri before and after the homicides. (11 RT 2566-2569.) Dr. Dutton noted that appellant and Carmen’s relationship washighly conflictual, with physical and verbal abuse, and that the couple had separated numeroustimesandlater reconciled. (11 RT 2570-2671.) Dr. Dutton testified that the history of abuse and Carman’s plan to leave the relationship’ were two“hallmark characteristics” of a spousal estrangement homicide. (11 RT 2570-2671.) Dr. Dutton also considered the fact that appellant’s brother, Michael, was incarcerated for spousal homicide, as part of appellant’s family background and developmental factors and “the fact that they were raised in a family that I would say was kind of a breeding ground for violence.” (11 RT 2582-2583.) '3 Dr. Dutton notedthat in her diary, Carmen described the problems and abusein their relationship; in the kitchen drawer, there were notes in Carmen’s handwriting of an escape plan and the numberofthe battered women’s shelter. (11 RT 2570-2571.) 56 Dr. Dutton indicated the important factors to consider to determine whethera spousal killer is an impulsive-rage killer is whetherthere is a history of violence between the couple, whether the man hasa pattern of violent behavior, the type of people he associates with, if the violence came predominantly from inside or outside the relationship, andif there is a history of any other antisocial behavior. (11 RT 2591-2592.) Dr. Dutton acknowledged that a man’s antisocial behavior, specifically his commission of crimes, especially violent ones, may bear on the doctor’s opinion as to whether the homicide was driven by rage or was goal-directed. Dr. Dutton testified that he focuses most of his work on impulsive rage killers; where a person blowsup because of built-up tension and kills his partner with no logical explanation. (11 RT 2601-2602.) Asto the 1994 robbery-murder of Jerome Bryant, “it wasn’t crystal clear to me whetherit was necessarily a murderousact or not” on appellant’s part, but was awarethat appellant had an antisocial criminal career. (11 RT 2577.) Dr. Dutton added that even assuming that appellant participated in the murder of Bryant, it still would not affect his opinion. (11 RT 2578.) Dr. Dutton stated that “things that occurred on the outside would be tangentially related to that set of facts [occurring within appellant’s intimate relationship],” but was not “completely irrelevant.” (11 RT 2578.) Dr. Dutton admitted that he did not review the following material which showincidents of appellant using violence to achieve his goal: reports from the Martinez Detention Facility about appellant’s attempted escape and subsequentplans to escape andkill a guard; the underlying facts of the 1994 New York robbery of Frank Pecoraro where appellant brutally beat Mr. Pecoraro; FBI reports detailing the San Francisco bank robberies where appellant and Gregory Morton,the latter armed with a .357 magnum, physically assaulted and threatened to shoot and kill bank employees and customers;letters appellant wrote shortly before the bank robberies asking 57 for a gun; and Detective Castaneda’s interview of appellant’s sister, Vanessa Henriquez, where she described an act of violence by appellant upon a homeless man. (11 RT 2588-2590, 2600.) Dr. Dutton considered appellant’s antisocial behavior outside the homeand concludedthat it did not play a role in the killing of Carmen and Zuri. (11 RT 2603-2604.) Dr. Dutton indicated that Michael Henriquez’s spousal homicide and the 1994 robbery-murder of Bryant by Timothy Henriquez and appellant show that appellant has a “rageful family.” (11 RT 2605-2606.) Dr. Dutton, however, opined that the 1994 robbery- murder of Rrvant was goal-driven, to rob, although with some elements of rage since appellant and Timothy did not need to throw Bryant over the bridge and kill him in orderto take his wallet. (11 RT 2606.) The prosecutor argued that the 1994 robbery-murder wasrelevantto show that Dr. Dutton’s opinion wasbiased. (11 RT 2609.) Appellant, outside the relationship, used violence to commit bank robberies, and urged throwing a man off of a bridge in order to rob him. Appellant also threatened to kill a jail guard to effectuate his jail escape, and committed another robbery where appellant pushed a man up against a wall, held a knife to his throat, and demanded money. (11 RT 2609-2610.) In this case, appellant violently killed his spouse and child, showing that his persona outside and inside his intimate relationship was consistent; that he is violent, and that he uses violence to get what he wants. (11 RT 2609.) The prosecutor pointed out that in the 1994 Bryant robbery-murder, although appellant and his accomplices did not have weapons, they used violence to effectuate their goal, which was to rob the man. Similarly,in this case, appellant did not have a conventional “weapon,” but used ordinary household items and his handsto violently kill Carmen and Zuri to effectuate his goal, which wasto stop Carmen from talking to friends and 58 family about him robbing banks and about him abusing her so he would not be sent back to prison. (11 RT 2609-2611.) The prosecutor explained that she intended to cross-examine Dr. Dutton about whythe 1994 Bryant robbery-murder did not changehis opinion, since he stated that antisocial behavior is an importantfactor in his determination. The prosecutor also intended to ask Dr. Dutton if there are other cases where he considered antisocial behavior and concludedthatthe man wasan instrumental spousal killer, and whether he was awarethat appellant had previously used a knife in committing a robbery, threatened to kill a guard, and used violence in the bank robberies, all goal-type © exercises in violenceandall indicative of an antisocial personality disorder of an instrumental batterer, and not of a borderline personality of an impulsive batterer. (11 RT 2625-2626.) The prosecutor explained her theory as one in which appellant killed Carmen and Zuri in an instrumental and goal-directed act, to punish Carmenfortalking to others abouthis criminal activities and to stop her from continuing to do so, in an attempt to avoid prison. (11 RT 2621.) The court summarized the prosecutor’s argumentas follows: “the doctor may haverejected it [the Bryant robbery- murder], but you [the jury] should give it more value than the doctor did. Andif one did, then reject [the doctor’s] opinion.” (11 RT 2621.) Defense counsel countered that Dr. Dutton is “not saying that [appellant] does not have the capacity to premeditate or plan.” (11 RT 2622.) According to defense counsel, the prosecution could effectively cross-examine Dr. Dutton abouthis studies andliterature without raising the prejudicial matter of appellant’s mental state in the 1994 Bryant robbery- murder to impeach Dr. Dutton. (11 RT 2623-2624.) 3. The trial court’s ruling In denying appellant’s motion, the trial court noted that Dr. Dutton considered the 1994 robbery-murder because it showedantisocial behavior, 59 a factor Dr. Dutton stated should be considered when determiningif a spousalkilling is an impulsive or instrumental act. The court noted that despite appellant’s use of violence to rob his victim in the 1994 robbery- murder, Dr. Dutton concluded the domestic violence killing in this case was impulsive and due to rage. (11 RT 2611-2613.) The court stated that Dr. Dutton “locks on. . . to the concept. . . that antisocial behavior. . . or other crimesis [sic] relevant to the issue about whether any specific incident of domestic violence was impulsive or instrumental,” and that such material is worthy of consideration with respect to the issue. (11 RT 2614.) Dr. Dutton “hasicallyhas said to us . . . this is [] informationthatis reliable. . . . [t]he kind of information that experts in this field look at in trying to make a determination of the kind that he is giving his opinion on.” (11 RT 2614- 2615.) Thetrial court ruled that if Dr. Dutton testified that appellant killed Carmen and Zuri in an impulsive act of intimate rage, the prosecution could introduce evidence of appellant’s participation in the 1994 Bryant robbery- murder, his use of violence in the robbery of Mr. Pecoraro, his use of violence or threats of violence in his commission of two bank robberies, and perhapshis threat to kill a guard to effectuate his jail escape. (11 RT 2713-2715.) Relying on People v. Hendricks (1988) 44 Cal.3d 635, the court stated: In that case, an expert by the name of Dr. Carson was goingto be called by the defense as a defense psychologistto testify that the murders in those cases were committedas impulsively as homosexual rage. The People put the defendants on notice that if the defense called this expert, then they intended to introduce three other uncharged murders which the defendant had allegedly committed, in order to dispel — in order to allow the jury to properly evaluate the psychologist’s testimony that this was an impulsive act of homosexualrage. 60 It went up to the Supreme Court. Whenthe People said this, the defense asked that this evidence be excluded. The Court conducted a hearing not unlike what we did today. The Court concludedit should come in for impeachmentpurposes. Thereupon, the defense rested without putting on any evidenceatall. And it went up to the Supreme Court. The Supreme Court said other evidence may be used to impeach the testimony of an expert witness, because an expert witness may be cross-examined more extensively and searchingly than a lay witness. The Court has broad discretion to admit such evidence for impeachment. No abuse of discretion appears here, because Dr. Carson’s opinion that this was an impulsive act of homosexual rage wasat odds with the evidence introduced by the prosecution. The prosecutor wasentitled, therefore, to attempt to discreditit. Defendantseeks to avoid this conclusion by arguing on the basis of People vs. Coleman,citation, “The use of the uncharged homicides should have been barred as unduly prejudicial.” But the evidence here appears to be both probative and less prejudicial than the woman’s, quote, “accusatory statements from the grave” which wereat issue in Coleman. Andthe court finds that this evidence would have highly probative value for a jury to properly evaluate the doctor’s testimony, and would not be substantially outweighed by the prejudicial value. Therefore, if the defense calls Dr. Dutton, and he does testify to this effect, that this was an impulsive crimeof intimate rage, then the People would have an opportunity to introduce evidenceof the kindthat I indicated, including the Bryantkilling andall the other things that I’ve mentioned. And that would be not just cross-examinedonit, but to introduce evidence aboutit. (11 RT 2715-2717.) Thetrial court also expressly rejected appellant’s claim that under Evidence Code section 352,the proffered evidence was unduly prejudicial. 61 “T]he acts of violence by the People was[sic] very probative on the question of the weight to be given to the doctor’s testimony,and[] was[sic] extremely importantbecauseit [sic] is related to the real key issue in this case, whether there was premeditation or deliberation.” (12 RT 2761.) Subsequently, defense counsel proposedthat to prevent cross- examination of Dr. Dutton about appellant’s participation in the 1994 Bryant robbery-murder, counsel wouldnotelicit Dr. Dutton’s opinions expressly concerning appellant’s mental state at the time he killed Carmen and Zuri. Instead, counsel would limit direct examination of Dr. Dutton to general exnert knowledge based onhis studies regarding spousal homicide. (12 RT 2733, 2747-2749, 2753.) Thetrial court concluded that since Dr. Dutton would no longer offer his opinion as to whether appellant killing Carmen and Zuri was impulsive or instrumental, evidence of appellant’s other acts of violence would notgoto the credibility or the weight of Dr. Duttons’ testimony. (12 RT 2761.) However, the prosecutor couldstill cross-examine Dr. Dutton as to how antisocial behavior in generalis relevant to whether a spousal homicide is an impulsive or instrumental act. Counsel agreed that such inquiry was relevant. (12 RT 2749-2750.) 4. Dr. Dutton’s testimony during guilt phase After the People rested, defense expert witness Dr. Dutton testified. His testimony wassimilar to that at the 402 hearing, excluding references to informationrelating to appellant and this case, and excluding his opinion that appellant killed Carmen and Zuri in an impulsiveactof intimate rage because he feared that Carmen wasleaving him. (12 RT 2792-2869.) B. Applicable Legal Principles Evidence Code section 1101, subdivision (c), reads “[nJothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.” (See also People v. Kennedy (2005) 36 Cal.4th 62 595, 634.) Moreover, “[o]ther-crimes evidence may be used to impeachthe testimony of an expert witness. (People v. Nye (1969) 71 Cal.2d 356, 373- 376 []; People v. Jones (1964) 225 Cal.App.2d 598, 610-613 [].)” (People v. Hendricks, supra, 44 Cal.3d 635, 642; see also People v. Kennedy, supra, 36 Cal.4th at p. 634.) Evidence Code section 721 provides, in relevant part: (a) ... [A] witness testifying as an expert may be cross- examined to the same extent as any other witness and, in addition, may be fully cross-examinedasto (1) his or her qualifications, (2) the subject to which his or her expert testimony relates, and (3) the matter upon whichhis or her opinion is based andthe reasons for his or her opinicr. Similarly, a prosecution’s rebuttal evidence is properly admitted to attack the basis of an expert witnesses’s testimony. (People v. Doolin (2009) 45 Cal.4th 390, 438,citing Evid. Code, §§ 721, subd.(a), 790.) The court in People v. Jones, supra, 225 Cal.App.2d at p. 611, explained: The general rules regarding expert testimony and the scope of cross-examination of experts have been frequently stated. “A medical expert ts entitled to express his opinion on a medical question presented in issue and then he may support that opinion by giving the reasons assigned in support ofit. [Citation.] Expert evidence is really an argument of an expert to the court, and is valuable only in regard to the proof of the facts and the validity of the reasons advanced for the conclusions. [Citation.] The weight to be given to the opinion of an expert depends on the reasonshe assigns to support that opinion. [Citations.]” (People v. Martin (1948) 87 Cal.App.2d 581, 584 [.) (id. at p. 611.) “Once an expert offers his opinion, [] he exposes himself to the kind of inquiry which ordinarily would have no place in the cross-examination of a factual witness.” (Hope v. Arrowhead & Puritas Waters, Inc. (1959) 174 Cal.App.2d 222, 230.) 63 The expert invites investigation into the extent of his knowledge, the reasonsfor his opinion, including facts and other matters upon whichit is based [citation], and which he took into consideration; and he may be “subjected to the most rigid cross- examination” concerning his qualifications, and his opinion and its sources [citation]. (Ibid.; see also Evid. Code, § 721, subd.(a).) It is for this reason that expert witnesses are subject to far broader cross-examination than are other factual witnesses. (Evid. Code, § 721, subd. (a); People v. Hendricks, supra, 44 Cal.3d 635, 642; People v. Nye, supra, 7\ Cal.2d at pp. 374-375; People v. Jones, supra, 225 Cal.App.2d at pp. 610-615.) Tne weigin accorded an expert’s opinion is a matter for the jury to determine. (§ 1127, subd. (b); Evid. Code, § 720; CALJIC No.2.80.) Because an expert witness may be cross-examined “more extensively and searchingly than a lay witness,” the trial court has broad discretion to admit such evidence for impeachment. (People v. Dennis (1998) 17 Cal.4th 468, 519.) Thetrial court’s ruling is reviewed for abuse of discretion. (People v. Hughes (2002) 27 Cal.4th 287, 335.) Additionally, Evidence Code section 352 providesthatall relevant evidence which has not been excluded bystatue is admissible, unless the trial court, in its discretion, findsthat its “probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” “The ‘prejudice’ referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendantas an individual and which has very little effect on the issues. In applying section 352,‘prejudicial’ is not synonymouswith ‘damaging.”” (People v. Yu (1983) 143 Cal.App.3d 358, 377.) “On appeal, the ruling is reviewed for abuse of discretion.” (People v. Cudjo (1993) 6 Cal.4th 585, 609.) “Where . . . a discretionary 64 poweris inherently or by expressstatute vested in the trial judge, his or her exercise of that wide discretion must not be disturbed on appeal except ona showingthat the court exercised its discretion in an arbitrary, capricious or patently absurd mannerthat resulted in a manifest miscarriage ofjustice.” (People v. Jordan (1986) 42 Cal.3d 308, 3 16; italics in original.) C. The Trial Court’s Ruling To Admit Evidence of the 1994 Robbery-Murder for Impeachment WasNot an Abuse OfDiscretion Appellant claims the 1994 robbery-murder was inadmissible under Evidence Code section 1101 because it showsthat he has a propensity for violence. (AOB 58-59.) Appellant’s contention is misplaced. The prosecutor here did not offer this evidence under Evidence Code section 1101, subdivision (a), nor did the trial court admitit on this basis. Instead, the prosecutor plannedto rely on the robbery-murderto cross- examine Dr. Dutton as to his bias; specifically, on the basis of his opinion that appellant killed Carmen and Zuri in an impulsiveact of intimate rage. (11 RT 2608-2621.) At the 402 hearing, Dr. Dutton testified that a man’s antisocial or criminal history is an important factor to consider in determining whether he is an impulsive or instrumental type killer. (1JRT 2591-2592.) Dr. Dutton opined that the 1994 robbery-murder wasan instrumentalkilling, with the objective to rob, with “some elements of rage” since appellant and his brother Timothy and friend used excessive means. (11RT 2606.) Dr. Dutton indicated that this robbery-murder wasthe type of antisocial behavior that should be considered to determineif a spousal homicide was an impulsive rage or instrumentaltype killing. (11RT 2603-2604.) In fact, Dr. Duttonstated that he considered this robbery-murder, but did not rely on it or give it any weight in rendering his opinion that appellant killed 65 Carmenand Zuri in an act of impulsive rage due to estrangement. (11RT 2576-2578.) The weight of Dr. Dutton’s testimony clearly depended uponthebasis for his opinions, especially his opinion that appellant killed his victimsas a result of him losing control and erupting in a rage, rather than because he had violent tendencies. As such, the prosecutor wasentitled to impeach and cross-examine Dr. Dutton with/about appellant’s 1994 robbery-murder as a means of highlighting the inconsistenciesin his testimony, andtesting his credibility. “[A]ny possibility the jury might have misunderstood the purpose ofthie evidence fvould have been] obviated by [a] limiting instruction, which we presumethe jury [would have] understood and followed.” (People v. Panah (2005) 35 Cal.4th 395, 491; see CALJIC No. 2.50, 3 CT 1022-1023; 13 RT 3227.) Appellant’s claim that the challenged evidence was moreprejudicial than probative under Evidence Code section 352 likewisefails. The 1994 robbery-murder involved killing a stranger for money, facts muchless inflammatory than those of the instant offense which were extremely brutal. Here, appellant suffocated his two-year old daughter with a pillow and thenstruck her with the claw and bluntend of a hammeruntil she died. Appellant then tortured andkilled his pregnant wife by binding her armsandlegs, beating and kicking herin the face, cutting her with a knife, tying a plastic bag around her head, and strangling her. (4 Supp.CT 883-885, 889-890, 892-896; 9 RT 2063-2065; 10 RT 2441, 2448-2449, 2453, 2513-2514, 2516, 2518-2520.) The trial court’s ruling that the challenged evidence was not unduly prejudicial was not an abuse of discretion. Appellant’s claim that the trial court’s ruling effectively prevented him from presenting a defense, e.g., that appellant killed his victimsin fit of rage fueled byhis relationship with his wife and his family history (see 66 AOB 50-51), is misplaced. While “[a] defendant has the general right to offer a defense through the testimonyofhis or her witnesses[citation], . . a state court’s application of ordinary rules of evidence . . . generally does not infringe upon this right [citations].” (People v. Cornwell (2005) 37 Cal.4th 50, 82.) Regardless, even assumingerror, the admission of the challenged evidence was harmless. D. Even Assuming Arguendothe Trial Court’s Ruling Wasan AbuseofDiscretion, Any Error In Ruling To Admit the Challenged Evidence Was Harmless Thetrial court ruled that evidence of the 1994 robbery-murder, in addition to other acts where appellant uséd violenceto attair hrs goals, would be admissible in the event Dr. Dutton opined that appellant killed Carmen and Zuri in an impulsive act of intimate rage.'* In each ofthe other acts of violence, the evidence showedthat appellant personally committed violent acts; thus, even without evidence of the 1994 robbery-murder, the jury would have heard evidence of appellant’s violent tendencies. Additionally, the evidence introduced at the guilt trial was overwhelming that appellant had motiveto kill, and that he premeditated and deliberated killing Carmen and Zuri. First, there was no doubt that appellant knew and wasangry that Carmen wastalking to friends and family about him robbing banks and abusingher, that he wanted her to stop, and that he was concerned that someone would “snitch him out” and he would be sent back to prison. (See 8 RT 1960-1970; 9 RT 2126-2128, ‘4 Appellant doesnot challengethetrial court’s ruling as to these other violent acts. (e.g. 11 RT 2713-2715; see 14 RT 3613-3614 [evidence presented that in 1994 appellant robbed and beat Frank Pecoraro]; 11 RT 2713-2715; see 14 RT 3506, 3509 [evidence that appellant and accomplice used violence and threatened to shoot and kill employees and customers to effectuate two bank robberies]). 67 2190, 2195-2196; 10 RT 2357, 2359-2361, 2395, 2398-2399, 2509-2510, 2517-2518; 4 Supp.CT 877, 899-900.)"° Before the murders, appellant told his mother that Gregory Morton, his accomplice in the bank robberies, told him to teach his wife not to talk so much because he (Morton) had nointention of going back to prison. (9 RT 2195-2196.) Carmen’sfriend, Angelique Foster, testified that appellant called her before the murders and angrily said Carmen was going crazy and wastelling others that he planned to rob banks. (19 RT 2395.) Second, appellant’s statements to others showedthat he planned to kill Carmen and Zuri to stan Carmen from talking, and to avoid being sent back to prison. (See e.g., 9 RT 2144-2147 [appellant’s brother testified that appellant told him that if Carmen “didn’t stop talking” appellant was going to “kill her’ and that Carmen “doesn’t know when to keep her mouth shut.”]; (9 RT 2174-2176 [appellant explained to his mother that Carmen “just doesn’t listen. She just doesn’t listen.”]; see also 9 RT 2185 [appellant told his mother that “She just wouldn’t stop — she talked too much. She wouldn’t stop talking. She wouldn’t listen.” “She just, you know,didn’t listen. She just didn’t know how to stop talking about things.”}) Third, the physical evidence from the autopsies (8 RT 1900-1931), in addition to appellant’s admissionsto the police (4 Supp.CT 874-913; 10 RT 2441, 2446-2449, 2453, 2495, 2508-2524), showedthat appellant planned the murders. For instance,in his interview with police, appellant indicated that he woke up the morning of the murders and knew he wasgoingto kill Carmen and Zuri, but first had to separate the two. (4 Supp.CT 908-909.) ' “A Supp.CT”references volumefour of the “Clerk’s Supplemental Transcript of Capital Appeal Photocopies of Exhibits Requested By Appellate Counsel.” 68 Appellant then detailed his plan; he sent Carmento the bank to cash her pregnancy disability check, knowing that he could not do so after he killed her. (4 Supp.CT 883, 887, 908.) Right after Carmen left the apartment, appellant went into Zuri’s room where she was napping onthe floor mattress, and puta pillow over her face andtried to suffocate her. When he was unsuccessful he went to his bedroom,retrieved a hammer, and went back to Zuri’s room where he struck her until she was dead. (4 Supp.CT 883-885; 10 RT 2441, 2448, 2453, 2513-2514.) Appellant then waited until Carmen returned. When shedid,hefirst tried to slash her with a knife, then kicked her in the face and mouth, and next went into a bedroom andretrieved shoe laces and a phonecord, with whichhe tied Carmen’s ankles together and her hands behind her back. (4 Supp.CT 889-890, 892-896; 9 RT 2063-2065; 10 RT 2449, 2516, 2518- 2519.) He then wentinto the kitchen and retrieved plastic grocery bags, one of which he used to put over Carmen’s head, stopping to tie a knotat her neck. When appellant realized that Carmenstill was not dead, he grabbed her neck, and tightened the plastic bag around her neck until she died. (9 RT 2064-2065; 10 RT 2448, 2520.) The evidence further showsthat appellant planned his escape before the murders. For instance, his mothertestified that the night before the murders, appellant told her he was“thinking” about going to New York, whichis exactly where he fled after he murdered Carmen and Zuri. (9 RT 2170, 2193.) In sum, appellant made at least two separate consciousacts to kill each of his victims. He attempted to suffocate Zuri with a pillow. When that failed, he retrieved a hammerandfatally struck her in the head. Later, after methodically torturing Carmen, appellant attempted to suffocate her by tying a plastic bag over her head. Whenthatfailed, he strangled her to death with his hands. This, in addition to appellant planning in advanceto 69 separate Carmen and Zuri to facilitate the murders, andto flee to New York afterwards, is ample evidence that appellant premeditated and deliberated killing Carmen and Zuri. It is not reasonably probable appellant’s verdict would have been more favorable even without the admission of evidence of the 1994 robbery-murder of Jerome Bryant. (People v. Watson (1956) 46 Cal.2d 818, 836; see also People v. Welch (1999) 20 Cal.4th 701, 749-750.) Ill. THE TRIAL COURT PROPERLY ALLOWED THE PROSECUTOR TO INTRODUCE EVIDENCE OF APPELLANT’S ATTEMPTED JAIL ESCAPE TO SHOW CONSCIOUSNESSOF GUILT Appellant contendsthat the trial court erred in admitting into evidence his attempted jasi wovape ao “vier crimes” evidence or to show consciousnessof guilt. (AOB 65.) Appellant claims that the error violated his right to due process and reliable adjudicationat all stages of a death penalty case under the Eighth and Fourteenth Amendment ofthe federal Constitution. (AOB 67.) Appellant’s contention is without merit. A. Relevant Proceedings On October 22, 1999, defense counsel movedin limine to exclude prejudicial “other crimes” evidence. (3 CT 789-790.) On November2, 1999, the prosecutor filed an opposition to defense’s motion (3 CT 828-829) and stated her intent to introduce evidence of appellant’s attempt to escape from jail. (3 CT 818-829.)'° In a written motion, the prosecutor described the facts of the attempted escape, based on police report, as follows: '© The prosecutorstated her intent to introduce two incidents of appellant attempting to escape jail while awaiting trial. First, on August5, 1998, appellant and four inmates attempted to escape from jail. Three weekslater, appellant planned a second escape andthreatened to kill the jail guard. (11 RT 2713.) The prosecutor ultimately withdrew her motion to introduce the latter planned escape. (12 RT 2734.) Therefore,it is the August 5, 1998, attempted jail escape that appellant challenges here. 70 On August 5, 1998, Defendant and four other inmates on “C” Module were interviewed by deputies after a confidential informant/inmate advised that they were involved in an attempt to break out ofthe jail. Specifically, a window in room 33 had suffered damage. A metal screen coveringtheinterior side of the window hadbeenpried back and bent. A glass portion of the window was broken out, and there were chippedpieces of concrete that surround[ed] the window. Numeroussheets from one of the beds weretied together in a “rope” fashion. The confidential informant told Sergeant John Cox that he saw Defendant Henriquez and another inmate, Jerry White, ramming a metal piece against the concrete, trying to chip it away from the window. When questioned by the deputies, Defendant admitted that he was “fully responsible,” and added that “nobody else” was involved. (3 CT 823; see also 3 RT 614.) At oral argumenton the motion, the prosecutor explained that appellant’s escape attempt was probative to show consciousnessofguilt and an attemptto avoid the death penalty. (3 RT 597-598, 615.) Thetrial court noted that appellant’s actions were a “form offleeing.” (3 RT 615.) Defense counsel argued that appellant’s escape attempt was inadmissible since the defense was not contesting any elements of the murder charges and wasnot disputing the identity of the killer in the charged homicides, but was focusing only on appellant’s degree ofguilt. Thus, “consciousness of guilt” wasirrelevant to this determination,i.e., whetherappellant was guilty of first or second degree murder, and whether the crimes were premeditated. Defense counsel also argued that even if relevant, evidence of the escape attempt should be excluded under Evidence Code section 352 as cumulative and weaker than other “consciousness of guilt” evidence, and because it would create “a substantial danger of undue 7) prejudice and misleadingthe jury.” (3 CT 836-841;3 RT 694-696.) Thetrial court held that the escape attempt was admissible to show consciousnessofguilt for different types of criminal conduct, such as premeditated first degree murder, second degree murder, and manslaughter: We're presented with somewhat different issues when we get to the attemptedjail break from cell 33 on August 5th, 1998.... Now,Ms. Levine [defense counsel], I’ve read your paperscarefully, and the authorities. Andit seems to me that close reading of Romero and Terry indicates as follows: That where you havea situation that multiple inferences can be drawn from a set ¢ f Savin — foi eaw iple in this case we have an escape — the question is, what doesthat reflect? Guilt. Guilt of what? Guilt of first degree murder? Guilt of second degree murder? Guilt of manslaughter? Violating parole and going back to prison for the battery? What? It’s consistent with any one of those things. It seems to methat a fact is no less admissible becauseit permits [Jmultiple inferences. That’s the lesson in Romero and Terry — andespecially in Romero. That’s the one where he escapes. Andina case where he’s being tried for a crime in Alameda County, he says “you can’t allow evidenceof that escape in, because I also committed the crime in Contra Costa and I may have beentrying to escape to avoid prosecution ofthe Contra Costa crime.” Andthe escape, in and ofitself, was consistent with guilt - of either of those two crimes — the one that was involvedin his trial and another one in another county that wasn’t involved in the trial. Andthe Court said that goes to the weight. It’s for the jury to decide, based uponall the evidencein the case, whether the specific act of escape showed consciousnessof guilt of the '? The prosecutor countered appellant’s Evidence Codesection 352 argumentin part by noting that the only evidence to be presented would be appellant’s confession to jail authorities. (3 CT 867-869.) 72 Alamedacrime or showed consciousnessof guilt for the Contra Costa crime. Andin this case similarly it seems to methat the escape is consistent with a numberofthings, or crimes committed in this case, whether premeditated or second degree or manslaughter, and consistent with other types of criminal conduct that aren’t charged in this case. It’s consistent with all those things. It’s for the jury to decide, in considering the totality of all the evidence, whether it shows consciousness of guilt of any of those. And if'so, which oneor ones. Andso based upon People vs. Romero and like cases in that, it seems to methat’s a jury issue. And People will be allowedto establish escape from the jail on August 5, 1998... [qj ....[§] And there’s somecases right on point ofthat that clearly show that that goes to the weight. In orderto fully evaluate the consciousnessof guilt aspect of that, you should allow that in so they can understand the full measure of action that the defendant was prepared to undertake in order to avoid the conviction or the penalty, depending uponthesituation. .. . (3 RT 727-730.) The court continued: Remember, the inferences to be drawn from the escape don’t have to be made based upon the escapeisolated from all the other evidence. It should be made,in fact, by a consideration of the escape in the context ofall the other evidence that they hearat the trial. And then the questionis, if they dothat, is it a logical and reasonable inference from this that the escape reflects consciousnessof guilt of premeditated murder or some other crime. Andif it permits that kind of inference, the fact thatit permits other inferences doesn’t necessarily exclude it — although the jury couldn’t find guilt simply based upon consciousness of guilt. But they’ll be so instructed, in any event. (3 RT 730-731.) The court added: 73 To me,that’s the ultimate issuethat’s raised. If it allows for a reasonable and logical inference,if it’s supported by substantial evidence unless outweighed by prejudicial value, then it seems to me it should comein. . . . [§] If it’s probative, it outweighs the prejudicial value. No, I don’t believe that the question is identity — only identity. I don’t believe that. I understand your argumentin that respect. I don’t believe that that’s the case. The question is relevancy on any material issue. And you read these cases to confine materiality to identity issues. And I see nothing in logic that would so constrain it. . . . (3 RT 735-736.) Appellant ultimately stipulated to the August 5, 1998, escape attempt. On December2, 1°07 ain. iviat snus read the following to the jury: It is stipulated between the parties that on August Sth, 1998, five inmates, including Christopher Henriquez, using part of a cell bunk attempted to pry open a cell windowto escape from the custody of the Main Detention Facility of Contra Costa County where they were housed awaitingtrial. (10 RT 2418 -2420.) After all evidence waspresented, the trial court instructed the jury on murderin the first degree, murder in the second degree, and voluntary manslaughter. (13 RT 3233-3244.) The court also instructed the jury with a modified version of CALJIC No.2.04, [attempted escape from jail] asit relates to consciousnessof guilt. (13 RT 3223; 3CT 1012; see also Arg. V, infra.) B. The Trial Court Properly Allowed Evidence of Appellant’s Escape Attempt Appellant claims that “[t]he escape attempt was not admissible as other crimes evidence” pursuant to Evidence Code section 1101. (AOB 65.) Because the prosecution here did not offer evidence of appellant’s attempted jail escapeto establish criminalpropensity, appellant’s claim fails. (See People v. Farnam (2002) 28 Cal.4th 107, 154 [when defendant claimedinter alia that “bad act” testimony had “no basis for admission” 74 under Evid. Code, § 1101, this Court rejected defendant’s claim, noting that challenged evidence wasnot offered by the prosecution to show criminal propensity underthis section].) In any event, a defendant’s attemptedjail escape maybe properly admitted to prove a defendant’s consciousness of guilt. (See People v. Arias (1996) 13 Cal.4th 92, 127-128; People v. Neely (1993) 6 Cal.4th 877, 896-897; People v. Terry (1970) 2 Cal.3d 362, 395.) Here, appellant’s escape attempt was relevant and admissible because it tended to show his consciousnessof guilt of the charged murders. Appellant knew he had been charged with premeditated murders and was aware he could be sentencedto life in prison or death; it was a reasonable inference that he attempted escape to avoid the severe consequences. (See People v. Terry, supra, 2 Cal.3d at p. 395 [it is probable that “one who expects his guilt to be provedat trial will attempt an escape and that an innocent man will stay fortrial in order to clear his name and win lawful liberty”].) Appellant also claimsthat the trial court erred in allowing the prosecutor to introduce evidence of his escape attempt to show consciousness of guilt since he did not contestthe killings, so that identity wasnotan issue, but only the degree of the offenses. (AOB 65.) Appellant’s claim fails. First, as note ante, evidence of escape is admissible to show consciousnessof guilt. (People v. Odle (1988) 45 Cal.3d 386, 402-403; People v. Holt (1984) 37 Cal.3d 436, 455, fn. 11.) “Instructions on consciousnessof guilt are proper not only whenidentity is at issue, but also when‘the accused admits someorall of the charged conduct, merely disputing its criminal implications.’ [Citation.]” (People v. Thornton (2007) 41 Cal.4th 391, 438.) It is not error to give flight instructions when the primary issue in dispute is not identity, but whether the defendant 75 “premeditated and deliberated his crimes.” (People v. Moon (2005) 37 Cal.4th 1, 27-28, see also People v. Smithey (1999) 20 Cal.4th 936, 983.) Although appellant characterizes the question before the jury as that of the degree of his crime,rather than his guilt, “the fact remain[s] that defendantdid not plead guilty to any of the charges and the jury had before it the issue of guilt on all charges.” (People v. Breaux, supra, | Cal.4th at p. 304.) “Although defendant’s theory of the case was that he wasguilty of only second degree murder,he pleaded notguilty to the charges, thereby putting in issue ‘all of the elements of the offenses.’ (People v. Steele (2002) 27 Cal.4th 1230 174211(People v. Moon, supra, 37 Cal.4th atp. 28.) Thus, “[e]ven if he concededattrial his guilt of some form of criminal homicide, ‘the prosecution [was]still entitled to prove his case and especially to prove a fact so central to the basic question of guilt as intent [of whether he premeditated anddeliberated his crimes].’ [Citation.]” (Ibid.) In People v. Hall (1926) 199 Cal. 451, 459-460, this Court held that a person’s flight after the commission of a crime—while notin itself sufficient to establish guilt—is a circumstance to be considered by the jury in connection with all other facts and circumstances tending to prove a consciousnessof guilt. (/d. at p. 460.) “It is elementary that the flight of a person after the commission of a crime, while notof itself sufficient to establish guilt or to raise a presumption of guilt, is a circumstance to be considered by the jury in connection with all the other facts and circumstancesin the case as tending in some degree to prove the consciousnessofguilt, and evidence thereof is admissible, not as part of the res gestae, but as indicative of a guilty mind. It is permissible, in proof of the fact of flight, to show all ofthe facts and circumstancesattendingthe flight either to increase or decrease, as the case maybe,the probative force of the fact of flight. In other words, when testimonyasto flight is resorted to, it is proper to show the extent ofthe flight and the circumstances 76 thereof, including the acts and doings of the defendant, which tend to characterize and increase its significance.” (People v. Hall, supra, 199 Cal. at p. 460.) The evidencethat appellant attempted to escape from jail was undisputed. Asthe trial court pointed out, the indictmentspecifically charged appellant with the premeditated murders of his wife and daughter. Thelikely inference is that appellant was awareofhis guilt of the most serious of crimes and feared the profound consequencesoflife in prison or death. The probative force of the escape wasincreasedbythe facts attending the escape. Appellant admitted he killed his pregnant wife and his two-year old daughter. There is no doubt that appellant knew that by attempting to escape from custody, he risked resistance by armed guards and the likelihood that the guards would attempt to shoot an accusedtriple murdererto stop him. Yet, appellant willingly took that risk and the risk of perpetrating additional serious crimesin the event the guardsorhis accomplices were injured or killed. Thus, the evidence of appellant’s flight in this case wasrelevant to appellant’s consciousnessofguilt and to the prosecutor’s theory that appellant’s post-offense conduct wasconsistent with his awareness that he committed the most serious of crimes and faced the ultimate penalty. The huge risk to life and limb appellant took in attempting to escape showed not merely his awarenessthat he committed some wrong, but his awareness he wasguilty of an extraordinarily serious crime and faced the ultimate penalty. C. Evidence of Appellant’s Escape Attempt Was Not Unduly Prejudicial Evidence Code section 351 provides, “Except as otherwise provided by statute, all relevant evidence is admissible.” Section 352 provides, “The court in its discretion may exclude evidenceif its probative valueis substantially outweighed by the probability that its admission will (a) 77 necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” As discussed above, evidence that appellant attempted to escape from jail while awaitingtrial in this case washighly probativeto show his consciousnessof guilt, and that he premeditated and deliberated his crimes. Anyrisk of undue prejudice wasslight. The escape attempt, where appellant and four other inmates attempted to pry open a window and screens and tied sheets together, wasnot particularly severe or inflammatory since it did not involve any overt violence. (See People v. Kipp (2001) 26 Cal.4th 1199 1196 Twhere defendant, charged with capital offense claimed that attempted escape was unduly prejudicial, this Court noted that because attempted involved no overt violence, risk of undue prejudiceslight].) Moreover, the attempted escape paled in comparison to the heinous murders of appellant’s pregnant wife, and two year-old daughter. | The admission of the challenged evidence as not unduly prejudicial wasnot an abuseofdiscretion. (See People v. Williams (1997) 16 Cal.4th 153, 213 [appellate court reviews rulings under Evid. Code, § 352 for abuse of discretion.]) Appellant suggests that his escape attempt lacked probative value becauseit “occurred two yearsafter the charged offense.” (AOB 63, 67.) The claim that the probative value of such evidenceis necessarily diminished by the passage of time has been consistently rejected. (People v. Terry, supra, 2 Cal.3d at p. 395; People v. Ellis (1922) 188 Cal. 682, 693; See also People v. Kostal (1958) 159 Cal.App.2d 444, 451.) “[T]he questionof time of escape goes to the weight, not to its admissibility.” (People v. Terry, supra, at p. 395.) Evidence of escape—evenviolent escape—is properly admitted though substantial time elapses between the 78 crime andflight from custody. (See e.g., People v. Remiro (1979) 89 Cal.App.3d 809, 845 [16 months.].) D. Even Assuming Arguendo That Admission of Evidence of Appellant’s Escape Attempt WasErroneous, Any Error Was Harmless Even assuming arguendothat the trial court erroneously admitted evidence of appellant’s escape attempt to show consciousnessofguilt, it is not reasonably probable appellant’s verdict would have been more favorable without the evidence. (People v. Watson, supra, 46 Cal.2datp. 836.) The evidence showedthat appellant admitted killing his family to the police on several occasions, and also told some of his family membersthat he committed the crimes. (4 Supp.CT 937-959; 9 RT 2181; 10 RT 2357, 2443, 2447-2449, 2453, 2518-2520.) Moreover, as noted ante, (see Arg.II), there was overwhelming evidence presented of appellant’s guilt. For these reasons, appellant’s claim of error under the federal Constitution (see AOB 67) must also be rejected. (See Chapmanv. California (1967) 386 U.S. 18, 24.) IV. THE TRIAL COURT PROPERLY ALLOWED INTO EVIDENCE CARMEN’S OUT-OF-COURT STATEMENT Appellant contendsthat the trial court erred by allowing Trenice White, Carmen’s cousin, to testify that three weeks before Carmen’s death, Carmentold her that appellant was into “heavy stuff.” (AOB 68.) Appellant claims that Carmen’s statement was inadmissible hearsay and violated his rights under the federal and state Constitutions andstate law. (AOB 69.) Appellant’s contention is without merit. A. Relevant Proceedings On November24, 1999, defense counsel filed a motion to exclude hearsay evidence, including statements made by Carmen,claiming such 79 evidence would violate his federal andstate rights to due process and fair trial. (3CT 882-889.) On November29, 1999, the prosecutor noted her intent to introduce out-of-court statements made by Carmen. (7 RT 1697-1706.) Defense counsel expressed concern that Trenice White would testify about statements Carmen made whenshestayed at Trenice’s apartment. The prosecutorstated she did not intend for Trenice to testify about what Carmensaid, but about Trenice’s observations that Carmen was very withdrawn, scared andsaid little. (7 RT 1762.) The prosecutor explained that Trenice’s observations that Carmen wasscared and upset were relevant to show that appellant had a motive to kill Carmen. “She’s scared because of these robberies; she’s telling him not to doit, . . . she’s going around telling people,” and that gives appellant a motive to kill her. (7 RT 1762- 1764.) Defense counsel read to the jury from a police report as follows: Carmen told White, Trenice White, that she would talk to her, White, aboutit later. That Chris wasinto heavy stuff. Carmen appeared to betired and afraid and was crying. Carmen stayed with White at White’s apartment from July 19th to July 21st , etc., etc. White also heard that Christopher had threatened to kill Carmenif she told about the robberies. (7 RT 1765.) Defense counsel argued that Trenice’s testimony that Carmen was afraid was inadmissible hearsay, inadmissible evidence of Carmen’s state of mind, and inadmissible opinion testimony. (7 RT 1765-1766, see also 7 RT 1774-1775.) On December 1, 1999, the prosecutor was preparedto call Trenice White to the stand. Defense counsel challenged the admission of Trenice’s proposedtestimonythat “Carmen comesover andsheis just saying he’s into alot. That’s all she says. That’s it.” The prosecutor offered Carmen’s 80 out-of-court statement as a spontaneousstatement, an exception to the hearsay rule. (9 RT 2114; see also Evid. Code, § 1240.) The prosecutor reiterated that she was offering it as “a spontaneous statement” made under stress. “[A]nd that’s it. She wouldn’t say anything more.” (9 RT 2115- 2116.) The prosecutor argued that Trenice’s proposed testimony wasthat Carmenacted very differently, was very upset, and blurted out that appellant wasinto heavy stuff. (9 RT 2116.) Thetrial court allowed into evidence Carmen’s out-of-court statement, explainingits ruling as follows: I guess your argumentis that it qualifies under Penal Codesection [sic] 1240 as a spontaneous statementin thatit’s a statement that describes something she perceived, to wit, that he 1s into some heavy stuff, meaning the bank robberies, and that it was made understress or excitement caused bythat. (9 RT 2116.) The court explained “the stress is an ongoing thing, has been with [Carmen] and she made a statement underthat stress and that the statement wascausedby the perception [that appellant was going to rob banks]. [1] ..-[9]... In fact, she was very upset. .. . [J] I will allow it under [Evidence Code sec.] 1240.... [{] It does seem to qualify.” (9 RT 2117- 2118.) The Court finds that the statementconstitutes description of what the witness — what the declarant perceived andthat it was made — it appearsin the totality of her testimony considered, to have been made understress causedbythe very fact that she perceived, the fact that her husband wasinvolvedin heavy stuff or, more specifically, bank robberies. “So, I will allow that in... . (9 RT 2118-2119.) 81 As to defense counsel’s claim that the statement characterized Carmen’s state of mind, the court noted that in the event the statement was not hearsay, it was relevant to show that Carmen wasupset because she knew appellant was planning to rob banks. (9 RT 2119-2120.) The court discussed: If it were offered for the truth of the matter asserted that he wasinto heavy stuff, I believe there is enough here to indicate it’s a spontaneousstatement, falls within the exception ofthe hearsay rule. However, myprinciplerulingis thatit is based on the fact that in my viewit is not hearsay,it is being offered to establish that Carmen nau nuvwicuye of the bank robberies and wastalking about them in this form of defendant being into heavy stuff to third parties. And went on — and when considered for those purposes,it’s not even hearsay. It’s simply — it’s not even hearsay, it’s state of mind of Carmen and communication of that state of mind to a third party, which my vieware relevant to the overall motive contentions of the People in this case. (9 RT 2124-2125.) Attrial, Trenice White testified during the prosecution’s case-in-chief that when Carmen and Zuri stayed with her in July 1996, Carmen was abnormal, withdrawn,said little, and appeared stressed. Carmen told her that appellant was into “heavy stuff,” but did not elaborate. (9 RT 2127.) After Carmenleft, Trenice tried to contact her, but Carmenleft to stay with her father in Gilroy. Defense counsel did not cross-examine Trenice. (9 RT 2128.) Later, outside the jury’s presence, the trial court reaffirmed its ruling that Carmen’s statement, that appellant was into “heavy stuff,” was admissible. The court, however, revised the basis for its ruling and clarified that Carmen’s state of mind wasnotrelevant to the issues in this case. (10 RT 2342-2343.) 82 On December13, 1999, after the court excused the jury for deliberation, the court explained: One,I’ll make briefly, and it simply relates to my admission into evidence with respect to that statement, that testimony by Ms. White about Carmen havingtold her at one point that defendant wasinto heavy stuff. I admitted that over defendant’s objection. I have reviewed that in my mind several times. Finally concludedthat I think the ruling 1s correct on two grounds. One, insofar as it’s being offered into evidence for the truth of the matter asserted — that is, that defendant was into heavy stuff - that it did constitute a spontaneous statement, a statement made understress about whatwas being perceived. I found that to be a close question. And I read a lot of cases that had to do with whether something can qualify as a spontaneous statement whenthereis a substantial amount of time that passes from the occurrence of the matter that’s perceived that causesthestress. Andit really always boils to, in all the cases, a question of whether the statement was made whilestill acting underthe stress of the excitement. In this case, we don’t really have too much — we don’t have any evidenceor any evidenceas to precisely when Carmen learned about the defendant beinginto heavy stuff or committing the bank robberies. Andsoit’s hard to tell how that relates to how much time passed betweenherfinding that out and passing on the information to Ms. White that wastestified to. But it could have been a very short time. And whatwascontrolling to meis the fact that Ms. White emphasizedthat this Carmen she saw wasa different Carmen she had ever seen before. And she wasvery stressed. So the statement appears to have been made during a period of time while the stress occasioned by defendant — her 83 having learned that defendantwasin heavy stress wasstill governing. [sic] A close issue. But I found,all things considered, that it would be admitted under the spontaneous exception to the hearsayrule. But, as I indicated,it also comes in for nonhearsay purposes. And whenweruledatthetrial, we talked aboutstate of mind of Carmen. It’s unfortunate that I talked about it in those terms. And | think I raised that. It’s not really so much state of mind. Whatit is is it’s evidence of a communication made by Carmen to a friend. Andto that extent, it corroboratesall the other evidence, including a statement made by Francisco that defendant’s brother — that defendant had complained to him about Carmen talking to her friends. The evidence will show that fits that description of a friend, Carmen’s statement to Whitefits the description of talking about the bank robberiesto a friend, and therefore tends to corroborate that defendant was concerned aboutthat. I just wantedto state that for the record. I’m sorry, | started talking about it in terms of state of mind of Carmen. That created some problems. It’s really notstate of mind,it’s simply evidence of communication. (13 RT 3257-3260.) B. The Trial Court Properly Admitted Evidence of Carmen’s Statement As a Spontaneous Statement Thetrial court here properly admitted evidence of Carmen’s statement as a spontaneous statement, a well-established exception to the hearsay rule. Evidence Code section 1240 provides that evidence of a statementis not made inadmissible by the hearsay rule if the statement: (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and 84 (b) Was madespontaneously while the declarant was under the stress of excitement caused by such perception. (See also People v. Morrison (2004) 34 Cal.4th 698, 718.) “To render [statements] admissible [under the spontaneous statement exception] it is required that (1) there must be some occurrencestartling enough to producethis nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposedstill to dominate andthe reflective powersto be yet in abeyance; and(3) the utterance mustrelate to the circumstance of the occurrence preceding it.” [Citations.] (People v. Trimble (1992) 5 Cal.App.4th 1225, 1233, quoting People v. Poggi (1988) 45 Cal.3d 306, 318.) This Court, in People v. Farmer explained: [I]n the stress of nervous excitement the [declarant’s] reflective faculties may bestilled and the utterance may become the instinctive and uninhibited expression of the speaker’s actual impressionsand belief. The crucial element in determining whether a declaration is sufficiently reliable to be admissible under this exception to the hearsay rule is thus not the nature of the statement but the mental state of the speaker. The nature of the utterance—how long it was madeafter the starling incident and whetherthe speakerblurted it out, for example—maybe important, but solely as an indicator of the mental state of the declarant. (People v. Farmer (1989) 47 Cal.3d 888, 903-904.) Accordingly, a statement is “spontaneous”if it is made without deliberation or reflection (People v. Morrison, supra, 34 Cal.4th at p. 718), that is, it is reasonable to conclude the person was underthe influence of the stress of excitementat the time he or she made the statement. (People v. Brown (2003) 31 Cal.4th 518, 541; People v. Farmer, supra, 47 Cal.3d atp. 903; People v. Pensinger (1991) 52 Cal.3d 1210, 1266.) A trial court’s ruling that a statement was madeundersufficient stress to qualify for 85 admissibility under Evidence Codesection 1240is reviewed for abuse of discretion. (People v. Roldon (2005) 35 Cal.4th 646, 714; People v. Phillips (2000) 22 Cal.4th 226, 236; People v. Poggi, supra, 45 Cal.3d at pp. 318- 319.) According to Trenice White, Carmen wasnotacting like herself when she made the challenged statement. Carmen was withdrawn andscared, and was crying. (7 RT 1765; 9 RT 2127.) Thus, the record showsthat Carmen wasin a mentalstate of extremestress and excitement when she blurted out that appellant was into “heavy stuff.” There is no doubtthat the knowledge that appellant was going to rah » hank was shocking and upsetting to Carmen; Carmen waseight months pregnant, on pregnancy disability, and supporting herself, an unemployed husband, and a two-year old child. Upon seeing her bestfriend, Carmen could not contain herself and unsolicited, blurted out that “appellant was into heavy stuff,” and then recovered enough to stop herself from saying anything else that would reveal appellant’s criminal activities. Thetrial court’s admission of Carmen’s out-of-court statement as a spontaneous declaration under Evidence Code section 1240 wasproper. Appellant argues that assuming “heavy stuff’ related to bank robberies, there was no evidence as to when Carmenheard about the “heavy stuff.” Appellant asserts that “while a brief period of time may elapse without precluding application of the spontaneous utterance hearsay exception(see, e.g. People v. Raley (1992) 2 Cal.4th 870, 893-894; [18 hours]; In re Emilye A. (1992) 9 Cal.App.4th 1695, 1713 [one to two days]), there was no way of knowing how manyhours, days or weeks had elapsed in this case.” (AOB 72.) The record, however, showsthat appellant told Carmen he was planningto rob a bank near the time Carmenvisited Trenice. Trenice testified that Carmen stayed with her from July 19 through July 21, 1996. 86 (9 RT 2126-2127.) The parties stipulated that appellant committedthefirst San Francisco bank robbery on July 26, 1996, and the second oneon July 31, 1996. (12 RT 2790.) The record also showsthat appellant and Morton plannedthe first bank robbery sometime between July 15-20, 1996. (3 Supp.CT 759-767.'*) Moreover, appellant admitted to police that he told Carmenhe wasgoing to rob a bank before the fact. (3 Supp.CT 767.) The likely (and most reasonable) inference to be drawn from this evidenceis that appellant told Carmen about the planned robbery on or aboutJuly 19, 1996, which meansthat she learned about it just before she wentto stay with Trenice. In any case, “[t]he lapse of time between the described event and the statement, although a factor in determining spontaneity, is not determinative.” (People v. Trimble, supra, 5 Cal.App.4th at p. 1234 .) “Neither lapse of time between the event and the declarations nor the fact that the declarations wereelicited by questioning deprives the statements of spontaneity if it nevertheless appears that they were made underthestress ofexcitement and while the reflective powers werestill in abeyance.” [People v. Poggi, supra, 45 Cal.3d 306, 319 [].]” (People v. Trimble, supra, 5 Cal.App.4th at pp. 1234-1235; internal quotes omitted, italics in original.) C. The Trial Court Properly Admitted the Statement As Circumstantial Evidence of Appellant’s Motive To Kill Appellant also challengesthetrial court’s admission of Carmen’s statementthat appellant was into “heavy stuff” as corroborative evidence establishing appellant’s motive to kill; “that appellant killed his wife because she wastalking about the robberies to others.” (AOB 73.) Appellant argues that “the robberies had not taken place at the time Carmen '8 «3 Supp.CT”references volumethree of the “Clerk’s Supplemental Transcript of Capital Appeal Photocopies of Exhibits Requested by Appellate Counsel.” 87 talked to White” and there was no “evidence that showed that appellant was aware of the comment Carmen made to White.” (AOB 73-74.) According to appellant, the challenged “statement was irrelevant hearsay that wasfar more prejudicial than probative.” (AOB 74.) The record shows, however, that appellant knew that Carmen was telling others about his activities. (See 10 RT 2395 [Angelique Foster testified that appellant complained Carmen wasgoingcrazy andtelling people he was robbing banks]; 9 RT 2144-2147 [Francisco Henriquez testified appellant told him that Carmentalked too much and he wanted to kill her]; 9 RT 2195-2196 [Deborah Henriaueztestified that appellant said Gregory Morton warnedappellant to teach his wife notto talk so much because he did not wantto go back to prison]; 9 RT 2174-2176, 2185 [Deborah Henriqueztestified that after murders, appellant complained that Carmen wouldnotstop talking about his business]; 10 RT 2509-2510, 2517-2518; 4 Supp.CT 940 [appellant told police he was angry at Carmen for talking to friends and family about his committing robberies]. In People v. Mendoza (2007) 42 Cal.4th 686, a capital murder case, the trial court admitted into evidence the defendant’s wife’s testimony that the defendant’s stepdaughter, Sandra,said that defendant was abusingher, and that she [defendant’s wife] confronted the defendant with Sandra’s accusations. (/d. at p. 697.) This Court held thatthe trial court properly admitted Sandra’s statement for a non hearsay purpose: Thetrial court concluded the prosecutor was notoffering Sandra’s [the stepdaughter’s] statements to prove defendant actually molested her, but rather to prove defendant was aware of the accusations and to explain defendant’s motive for killing Sandra. Accordingly, the evidence did not constitute hearsay. Weagree. Sandra’s accusations were properly admitted to explain defendant’s state of mind, motive, and conduct. (People v. Hill (1992) 3 Cal.4th 959, 987 []; People v. Duran (1976) 16 Cal.3d 88 282, 295 [].) Rocio [defendant’s wife] testified that, after Sandra told her about defendant’s abuse, she had numerous conversations with defendant during which she confronted him with the details of Sandra’s accusations. There is no dispute defendant was aware of the accusations before he wentto Landers[, California]. (Id. at p. 697.) Similarly, in this case, Carmen’s statementthat “appellant was into heavy stuff’ to Trenice was properly admitted as circumstantial evidence that appellant had a motive to kill Carmen. It did not matter for this purposeif the statement was true. What mattered was that Carmen was telling her friends and family that appellant was committing robberies which explained appellant’s motive to kill her — that is to silence Carmen and avoid going backto prison. Based onthe foregoing,the trial court’s admission of evidence of Carmen’s statement to Trenice to corroborate other evidence of appellant’s motive, was not an abuse ofdiscretion. D. Any Alleged Error Was Harmless Even assuming Trenice’s testimony was erroneously admitted, the error was harmless under both state and federal standards. The jury learned about appellant’s bank robberies or the “heavy stuff” (he was involvedin) through various other sources, including appellant himself through his admissions to police. Moreover, the jury heard overwhelming evidence of appellant’s guilt, including that he suffocated and bludgeonedhis young daughter to death, and laid in wait for his pregnant wife before torturing and killing her. (See Arg. I, ante.) Last, appellant’s admissionsto police, included multiple statements indicating his motive to kill his wife. (10 RT 2509-2510, 2517-2518; 4 Supp.CT 940.) Appellant’s reliance on People v. Coleman (1985) 38 Cal.3d 69, 81- 82, that evidence of a defendant’s past or future conduct is unduly 89 prejudicial (see AOB 74-75) is misplaced. In Coleman,the trial judge permitted introduction ofthree letters written by the defendant’s wife (one of his victims) who stated that on numerousoccasionshethreatenedto kill the family and also recounted her fear of future violence. Theletters also contained descriptions of certain events, including pastacts of violent behavior by the defendant. Thetrial court allowed the evidence to be admitted for two limited nonhearsay purposes and allowedthe cross- examinationof a psychiatrist concerning the hearsay contents ofthe letters. This Court held that the potential for prejudice from this evidence wasgreat, and the probative valuelittle, based on the inflammatory nature of the hearsay and the fact the opinionsofthe expert could only beeffectively underminedifthe allegations were true. Thus,the trial judge abusedits discretion under Evidence Code section 352 by permitting extensive quotation from theletters and the reading of them. (/d. at p. 81, 85, 93.) In contrast, here, Carmen’s sole outburst and isolated commentthat appellant wasinto “heavy stuff’ was incomparableto the prejudicial hearsay statements admitted into evidence in Coleman. Appellant also complainsthat the prosecutor here “urged”the jury to consider Carmen’s statement as evidence that she knew that appellant plannedto rob banks, to corroborate Angelique Foster’s testimony that Carmen was“going crazy”andtelling people he was goingto rob banks, and to establish appellant’s motive to kill Carmen, and of his premeditation and deliberation. (AOB 74-75.) Trenice’s statement, however, wasnot pivotal in establishing that appellant had a motive and premeditated and deliberated the murders. As shown ante, in ArgumentII, there was substantial independent evidence, apart from Trenice’s testimony to show that appellant premeditated and deliberated the murders; there wasalso independentevidenceofappellant’s motive contained in his admissionto police. (10 RT 2509-2510, 2517-2518; 4 Supp.CT 940.) 90 Thetrial court’s admission of Carmen’s out-of-court statement was properly admitted for the reasons detailed above. In any event, even assumingerror, its admission was harmless. V. THE TRIAL COURT PROPERLY INSTRUCTED THE JURY THAT IT COULD INFER CONSCIOUSNESSOF GUILT IF IT FOUND THAT THE DEFENDANT MADE FALSE STATEMENTS, ATTEMPTED TO ESCAPE FROM JAIL, OR FLED THE CRIME SCENE Appellant contendsthat the trial court improperly gave the jury pinpoint instructions based on CALJIC Nos. 2.03 [Consciousness of Guilt- Falsehood], 2.04 [Attempted Escape From Jail], and 2.52 [Flight After Crime]. (AOB 76-77.) He is mistaken. All of the instructions were germaneto evidence admittedat trial, none of them were pinpoint instructions, and each instruction has been repeatedly upheld by this Court. A. The Challenged Instructions Were Properly Given And Did Not Duplicate Other Instructions on the Use of Circumstantial Evidence Appellant claims the challenged instructions merely reiterate what wasincluded in CALJIC Nos. 2.00 and 2.01.'? (AOB 78-79.) '? Thetrial court instructed the jury with CALJIC Nos. 2.00 and 2.01, as follows: Evidence consists of testimony[] of witnesses, writings, material objects, or anything presented to the senses and offered to prove the existence or the nonexistence of a fact. Evidence is either direct or circumstantial. Direct evidence is evidence that directly proves a fact. It is evidence which,byitself, if found to be true, establishes that fact. Circumstantial evidence, on the other hand, is evidence that if found to be true, proves a fact from which an inference of the existence of yet another fact may be drawn. (continued...) 9] (...continued) Aninference is a deduction offact that may logically and reasonably be drawn from anotherfact or groupoffacts established by the evidence. It is not necessary that facts be proved by direct evidence. They mayalso be proved by circumstantial evidence or by a combination of direct evidence and circumstantial evidence. Both direct evidence and circumstantial evidence are acceptable as means ofproof, and neitheris entitled to any greater weight than the other. (13RT 3220-3221; CALJIC No.2.00.) However, a finding of guilt as to any crime maynot be based on circumstantial evidence, unless the proved circumstancesare notonly: One,consistent with the theory that the defendantis guilty of the crime; But two, cannotbe reconciled with any other rational conclusion. Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant’s guilt must be proved beyonda reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyonda reasonable doubt, each fact or circumstance upon whichthe inference necessarily rests must be proved beyond a reasonable doubt. Also,if the circumstantial evidence as to any particular count permits two reasonable interpretations, one of which points to defendant’s guilt and the otherto a finding of not guilty, you must adoptthat interpretation that points to the finding ofnot guilty, and reject the interpretation that points to defendant’s guilt. If, on the other hand, one interpretation of this evidence appears to youto be reasonable andthe other interpretation to be (continued...) 92 First, appellant did not claim the challenged instructions were duplicative or cumulative below; he therefore has waived this claim on appeal. “[T]he failure to object to an instructionin the trial court waives any claim oferror unless the claimed error affected the substantial rights of the defendant, i.e., resulted in a miscarriage ofjustice, making it reasonably probable the defendant would have obtained a more favorable result in the absence of error. [Citations.].” (People v. Andersen (1994) 26 Cal.App.4th1241, 1249.) In this case, noneofthe instructions affected appellant’s substantial rights. Instructions on howto evaluate evidence of flight, false statements by appellant, and an attemptedjail escape are not on a par with instructions that describe the elements of a crime, explain the presumption of innocence, or require the jury to find guilt beyond a reasonable doubt. (See, e.g., People v. Hillhouse (2002) 27 Cal.4th 469, 503 [Instructions regarding the elements of the crime affect the substantial rights of the defendant, thus requiring no objection for appellate review”].) In any case, appellant’s claim fails on the merits. First, evidence presentedat trial warranted the giving of each of the challenged instructions. As to CALJIC No. 2.03, making willfully false statements, the prosecutor presented evidencethat after the killings, appellant told his mother “I hit Carmen with the hammer,and while I washitting her, Zuri got in the way,” implying that he killed Zuri accidentally. (9 RT 2185-2186.) Additionally, appellant told police that he sought advice from Morton, whotold appellant to run, implying that he had noplansto flee to New York butdid soat Morton’s instruction. (10 RT 2512; 4 Supp.CT 943.) As to CALJIC No. (...continued) unreasonable, you must accept the reasonable interpretation and reject the unreasonable. (13 RT 3221 -3222; CALJIC No.2.01.) 93 2.04, it was stipulated that on August 5, 1998, appellant attempted to escape from jail while awaiting trial. (10 RT 2418-2419.) As to CALJIC No. 2.52, the evidence showedthat after appellant killed Carmen and Zuri, he fled to New York. (10 RT 2430-2433, 2449; see also § 1127c, which mandates that the trial court instruct jury where evidenceofflight is relied on to show guilt; People v. Howard (2008) 42 Cal.4th 1000, 1020 [same].) As to appellant’s claim that CALJIC Nos. 2.00 and 2.01, by themselves, constituted sufficient instruction on the matter, appellant’s claim is misplaced. These instructions on circumstantial evidence focused on the facts of the crimes and the mental state of the defendant while committing the crime. (13 RT 3220-3222; 3CT 1008-1009.) The challenged instructions, on the other hand, concernedthe defendant’s state of mind after committing the crimes and whetherit reflected the defendant’s ownbelief that he had done something wrong. Not only did the challenged instructions concern a different matter, they were more specific than the generalinstructions on circumstantial evidence. Also, CALJIC Nos. 2.00 and 2.01 specifically told the jury thatit could convict the defendants based solely on circumstantial evidence. The challenged instructionstold the jury that evidence of consciousness ofguilt wasinsufficient to prove guilt. Accordingly, the challenged instructions were not duplicative of the general instructions on circumstantial evidence. Thetrial court further instructed the jury, “[i]f any rule, direction, or idea is repeated or stated in different ways in theseinstructions, no emphasis is intended and you must not draw any inference because ofits repetition.” (13 RT 3218.) Thus, evenifthe challenged instructions were repetitive, the jury wastold notto infer any significance to thatfact. (People v. Pinholster (1992) 1 Cal.4th 865, 919 [appellate courts presume the jury followedthe instructions it was given].) 94 B. The Instructions Were Not Unfairly Partisan Or Argumentative Appellant next claims that the three challenged instructions were impermissibly argumentative pinpoint instructions. (AOB 79-80.) This Court has repeatedly rejected this claim. (See People v. McWhorter (2009) 47 Cal.4th 318, 377; People v. Barnwell (2007) 41 Cal.4th 1038, 1057, People v. Nakahara (2003) 30 Cal.4th 705, 713; People v. Bacigalupo (1991) 1 Cal.4th 103, 128; see also People v. Holloway (2004) 33 Cal.4th 96, 142.) Appellant asks this Court to reconsider these and other cases, claiming that such instructions only benefit the prosecution. (AOB 81-82.) Appellant is mistaken. Such instructions are necessary to the jury’s understanding of the law. The jury is entitled to know that consciousness- of-guilt evidence tends to impeach a defendant’s credibility and denial of guilt. Wigmore summed upthe law asfollows: The commission of a crime leaves usually upon the consciousness a moral impressionthatis characteristic. The innocent man is withoutit; the guilty man usually hasit. Its evidential value has never been doubted. The inference from consciousnessof guilt to “guilty” is always available in evidence. It is a most powerful one, because the only other hypothesis conceivable is the rare one that the person’s consciousnessis caused by a delusion, and not by the actual doing of the act. The difficulty in connection with this evidenceis not its own relevancy to show the doing ofthe act — that is universally conceded — but the mode of proving this consciousnessofguilt in its turn by other evidence. There are two processesor inferences involved — from conduct to consciousnessofguilt, and then from consciousnessof guilt to the guilty deed. (1A Wigmore, Evidence in Trials at Common Law(Tillers rev. 1983) § 173, p. 1840.) This Court has long held that conduct of defendants evidencing their own awarenessof criminal culpability is circumstantial evidence of their 95 guilt. (See generally, e.g., People v. Ellis (1966) 65 Cal.2d 529, 537-538.) In contending that these consciousness-of-guilt instructions are erroneous, appellant relies upon People v. Mincey (1992) 2 Cal.4th 408, where he claims this Court rejected as impermissibly argumentative, an instruction like CALJIC Nos. 2.03, 2.04, and 2.52. (AOB 81.) In Mincey,a capital case, the defendant askedthetrial court to give the following pinpoint instruction: “‘[i]f you find that the beatings were a misguided, irrational andtotally unjustified attemptat discipline rather than torture as defined above, you mayfind that they were notin a criminal sense willful, deliberate, or premeditated.”” (People v. Mincev sunra 9 Cal.4th at p. 437, fn. 5.) This Court held: In asking thetrial court to emphasize to the jury the possibility that the beatings were a “misguided,irrational, and totally unjustifiable attempt at discipline rather than torture,” defendant sought to have the court invite the jury to infer the existence of his version of the facts, rather than his theory. of defense. Because of the argumentative nature of the proposed instructions, the trial court properly refused to give them. (id. at p. 437.) In appellant’s view, both the rejected argumentative instruction in Mincey and the approved CALJIC Nos. 2.03, 2.04 and 2.52 “tell the jury, ‘[i]f you find certain facts (escape attempt, making willfully false statements andflight in this case, and a misguided and unjustified attempt at discipline in Mincey) then ‘you may’ consider that evidencefor a specific purpose (showing consciousness ofguilt in this case and concluding that the murder was not premeditated in Mincey.)’ (AOB 80-81.) Appellant asserts “there is no discernible difference between the instructionsthis Court has upheld(see, e.g., People v. Nakahara, supra, 30 Cal.4th at p. 713; People v. Bacigalupo, supra, | Cal.4th at p. 123 [CALJIC Nos. 2.03 ‘properly advisedthe jury of inferences that couldrationally be drawn from the evidence’]) and a defense instruction held to be argumentative because 96 it “improperly implies certain conclusions from specified evidence.’ (People v. Wright, supra, 45 Cal.3d at p. 1137.) (AOB 82.) Appellantis wrong. CALJIC Nos. 2.03, 2.04, and 2.52, do not invite the jury to infer the existence of the prosecution’s version ofthe facts, but inform the jury of the law concerning consciousness-of-guilt evidence. And, besides noting the evidence the jury may consider, CALJIC Nos. 2.03, 2.04, and 2.52tell the jury that the evidenceit may consideris not sufficient by itself to prove guilt. The instruction rejected in Mincey lacked this elementof neutrality. (People v. Mincey, supra, 2 Cal.4th at p. 437, fn. 5.) Indeed, the instructions here were thus favorable to appellant in that they prevented a finding of guilt on very incriminating evidence. Thetrial court here did not err in instructing the jury with CALJIC Nos. 2.03, 2.04, and 2.52. C. The Challenged Instructions Did Not Permit the Jury To DrawIrrational Permissive Inferences about Appellant’s Guilt Appellant claims that the consciousness-of-guilt instructions “embody improper permissive inferences” that “permitted the jury to use the consciousness-of-guilt evidence to infer not only that appellant committed the murders, but that he had done so with premeditation and deliberation.” (AOB82, 84.) This Court has repeatedly rejected argumentsthat pattern jury instructions on consciousness of guilt permit “the jury to draw irrational inferences about a defendant’s mentalstate during the commission of the charged offenses.” (People v. Jurado (2006) 38 Cal.4th 72, 125; see also People v. Guerra (2006) 37 Cal.4th 1067, 1137; People v. Nakahara, supra, 30 Cal.4th at p. 713.) The instructions were neither irrelevant nor misleading as to whether appellant harbored the requisite mentalstate for first degree murder. 97 The extent and degree offlight, false statements, and escape may bear on the severity of the crime appellant is conscious of committing. “One conscious of his innocence isless liable to use a lethal weapon to avoid detention orto facilitate his escape from the scene of a tragedy than is one whofears the consequencesofhis guilty act.” (People v. Anderson (1922) 57 Cal.App. 721, 728.) Additionally, the court instructed the jury on three different forms of homicide: first degree murder, second degree murder and voluntary manslaughter. “[A] reasonable jury would understand [consciousness of guilt] to mean only ‘consciousness of some wronodoing * not consciousness of each and every element of the charged offense.” (People v. Arias, supra, 13 Cal.4th at p. 142.) The instructions advise the jury to determine what significance, if any, should be given to evidence of consciousnessofguilt, and caution that such evidenceis not sufficient to establish guilt, thereby clearly implying that the evidence is not the equivalent of a confession andis to be evaluated with reason and commonsense. The instructions do not address the defendant’s mental state at the time of the offense and do not direct or compel the drawing of impermissible inferences in regard thereto. (People v. Crandell (1988) 46 Cal.3d 833, 871; see also Peoplev. Carrington (2009) 47 Cal.4th 145, 189 [this Court rejected defendant’s complaint that CALJIC No. 2.03 did not limit the jury’s use of the evidence and allowed jury to infer the defendant was conscious of committing crimes with particular mentalstate, i.e., deliberation and premeditation]; People v. Smithey, supra, 20 Cal.4th at pp. 982-983 [this Court rejected appellant’s claim that “CALJIC No. 2.52 should be given only whenthe identity of the perpetrator is disputed, and not whenthe principal disputed issueis the defendant’s mentalstate at the time of crime”; People v. Bolin (1998) 18 Cal.4th 297, 326-327; People v. Jackson, supra, 13 Cal.4th at p. 1224.) 98 Finally, although appellant asserts the jury instructions given were unnecessary since he concededthat he committed the killings (AOB84), the prosecution wasentitled to instructions informing the jury how to evaluate evidence of consciousness of guilt since defendant’s not guilty plea placed on the prosecution the burden of proving every element of the charged offenses. (People v. Breaux, supra, | Cal.4th at p. 304.) D. Even Assuming Arguendo the Challenged Instructions Were Erroneously Given, Any Error Was Harmless Appellant claims the error in the giving of the consciousness-of-guilt instructions wasnot harmless under the federal Constitution. (See Chapmanv. California, supra, 386 U.S. p. 24.) (AOB 86.) As threshold matter, the proper standard of review for claimsofinstructional error are reviewed under People v. Watson, supra, 46 Cal.2d at p. 836. (See People v. Flood (1998) 18 Cal.4th 470, 489-490; People v. Wims (1995) 10 Cal.4th 293, 314-315.) Under this standard anyerrorin giving the challenged instructions washarmless. First, the prosecution presented overwhelming evidence of appellant’s guilt. (See Arg. II, ante.) Second, the jury naturally would have drawn inferences about appellant’s consciousnessof guilt even without the challenged instructions. For instance, there was evidencethat appellant fled to New York after the killings, a stipulation that he attempted to escape from the jail after being charged with the crimes, andhislies after he killed Carmen and Zuri, thus, any prejudicialeffect from the challenged instructions would have been minor. Pursuant to CALJIC Nos. 17.30 and 17.31, the trial court instructed the jury: Now,I’ve not intended by anything that I may have said or done, or by any questions that I may have asked during the courseofthis trial, or by any ruling that I may have made during the course ofthis trial, to intimate or suggest what you should find to be the facts, or that I believe or disbelieve any witness. 99 If anything I have said or done has seemedto you to so indicate, please ignore it. In fact, I order you to ignoreit and form your own conclusion. The purposeof the Court’s instructionsis to provide you with the applicable law so that you may arrive at a just and lawful verdict. Whether someinstructionswill apply will depend upon whatyou findto be the facts. Disregard any instruction which applies to facts determined by younotto exist. Do not conclude that because an instruction has been given,that I am expressing an opinionas to the facts. (13 RT 3248-3249; 3 CT 1073-1074.) It is presumedthat the jury followedthe trial court’s instructionsand, thus, that it did not use the challenged instructions unlessit first found the predicate facts were true. (See People v. Mooc (2001) 26 Cal.4th 1216, 1234.) In sum,evenif the jury had not been instructed with CALJIC Nos. 2.03, 2.04, and 2.52,it is not reasonably probable appellant’s verdict would have been more favorable. (People v. Watson, supra, 46 Cal.2d at p. 836.) VI. CALJIC No. 2.51 DOES NOT PERMIT THE JURY TO FIND GUILT BASED UPON MOTIVE ALONEORSHIFT THE BURDEN OF PROOF ONTO APPELLANT TO PROVE INNOCENCE Appellant contendsthatthe trial courterred in giving standard jury instruction CALJIC No. 2.51. Appellant claims “[t]his instruction improperly allowed the jury to determine guilt based upon the presence of an alleged motive and shifted the burdenof proof to appellant to show an absence of motive to establish innocence, thereby lessening the prosecution’s burden of proof.” Appellantasserts that the instruction thereby violated his constitutional rights to a fair jury trial, due process, and a reliable verdict in a capital case. (AOB 87.) Appellant’s contention is without merit. 100 Thetrial court instructed the jury at the guilt trial with CALJIC No. 2.51 as follows: Now,motive is not an elementof the crime charged, and need not be shown. However, you may consider motive, or lack of motive, as a circumstance in this case. Presence of motive maytend to establish the defendantis guilty. Absence of motive may tend to show the defendantis not guilty. (13 RT 3227; 3 CT 1024.) This Court in People v. Snow (2003) 30 Cal.4th 43, 97-98, and People v. Prieto, supra, 30 Cal.4th at p. 254, approved the language of CALJIC No. 2.51. In Snow, this Court held that CALJIC No. 2.51 does not impermissibly suggest that motive alone is sufficient to establish guilt. (People v. Snow, supra, at pp. 97-98.) This Court noted that CALJIC No. 2.51 explicitly instructs that motive is not an elementof the crime, and therefore reasonedthat it is highly unlikely that a jury would concludethat motive could establish all the elements of the crime. (/bid.) Furthermore, this Court stated that when CALJIC No.2.51 is given with CALJIC No. 3.31 on the concurrence ofact and intent, and with the instructions detailing the specific elements of the charged crime, as the court did here (13 RT 3233-3242, 3247-3248), it is even more unlikely that a jury wouldinterpret CALJIC No. 2.51 as allowing motive aloneto establish guilt. (People v. Snow, supra, at p. 98.) This Court in People v. Prieto, supra, 30 Cal.4th 226, rejected the argument that CALJIC No. 2.51 shifts the burden of proof from the prosecution to the defendant. (Jd, at p. 254.)° *° Thetrial court in Prieto instructed the jury with an older version of CALJIC No. 2.51, than the one used here, “which stated in relevant part that: ‘Presence of motive maytend to establish guilt. Absence of motive maytendto establish innocence.” (People v. Prieto, supra, 30 Cal.4th at p. 254.) This change doesnotalter our analysis. 101 “CALJIC No. 2.51 [does] not concern the standard of proof... but merely one circumstancein the proof puzzle—motive.” [Citation.] “[T]he instruction merely uses innocenceas a direction signal or compass. It doesnottell the jurors they must find innocenceas a direction signal or compass. It does nottell the jurors they mustfind innocence, nor doesit lighten the prosecution’s burden of proof, upon whichthe jury receivedfull and completeinstructions.” [Citation.] Thus, no reasonable juror would misconstrue CALJIC No. 2.51 as a “standard of proofinstruction apart from the reasonable doubt standardset forth clearly in CALJIC No. 2.90. [Citation.]” (People v. Prieto, supra, 30 Cal.4th at p. 254; see also 13 RT 3232.) Appellant arguesthat other instructions addressing an individual circumstance, such as CALJIC No. 2.52 [flight after crime]; CALJIC No. 2.03 [consciousnessof guilt-falsehood]; and CALJIC No. 2.04 [attempted jail escape], contained admonitionsthat a particular circumstance alone was not sufficient to establish guilt. Appellant asserts that CALJIC No. 2.51 is so “obviously aberrant” because it is missing such an admonition,that the jury wasled to believe it could properly use motive aloneto establish appellant’s guilt. (AOB 88.) As shown above,the court also instructedthe jury on CALJIC No.3.31 andinstructions on the specific elements of the charged crimes. Correctness ofjury instructions is determined from the entire charge to the jury. (People v. Castillo (1997) 16 Cal.4th 1009, 1016.) Wepresumethe jury followed the instructions and obeyed the law. (People v. Adcox (1988) 47 Cal.3d 207, 253.) This Court has rejected appellant’s challenge to CALJIC No. 2.51. Appellant offers no persuasive reason whytheresult should differ in this case. 102 VII. THE TRIAL COURT DID NOT ABUSEITS DISCRETION IN DENYING APPELLANT’S MOTIONS FOR SEPARATE GUILT AND PENALTY JURIES AND FOR SEQUESTERED VOIR DIRE Appellant contendsthat “the trial court’s denial of [his] requests for separate guilt and penalty juries and for sequestered voir dire” on death qualification deprived him of his Fifth, Sixth, Eighth, and Fourteenth Amendmentrights under the United States Constitution, the California Constitution and statutory law. (AOB 90, 92.) Appellant’s contention is without merit. On October 21, 1999, appellant made a pre-trial motion to empanel a separate pcaalty jury if a penalty phase wasreached,orin the alternative to empanel dual juries. (3CT 767-786.) Appellant also requested that “only the penalty-phase jury be death qualified,” and “voir dire regarding any death qualification be conducted on an individual, sequestered basis.” (3CT 768.) Appellant argued that good cause existed for the above procedures pursuantto section 190.4, subdivision (c)”' because voir diring the guilt-phase jury about appellant’s uncharged robbery-murder would be prejudicial and infringe uponhis right to a fair trial. (CT 769.) The prosecutor opposed the motion. (3CT 795- 803.) After an extensive hearing, the trial court denied appellant’s motionfor a separate penalty jury as well as his motion for individual sequestered voir dire on death qualification. (3 RT 697-715.) *! Section 190.4, subdivision (c) provides, in relevant part: If the trier of fact which convicted the defendantof a crime for which he maybe subject to the death penalty wasa jury, the same jury shall consider . . . the penalty to be applied, unless for good cause shown the court discharges that jury in which case a new jury shall be drawn. The court shall state facts in support of the finding of good cause upon the record and cause them to be entered into the minutes. 103 A. The Trial Court Did Not AbuseIts Discretion In Denying Appellant’s Motion for Separate Guilt And Penalty Juries First, appellant claims that the trial court erroneously denied his motion for separate juries to determine guilt and penalty. He argues that as a result, he “was effectively deprived of his ability to question prospective jurors on critical issue [;]” specifically, on the uncharged 1994 robbery- murder of Jerome Bryant. This resultedin his inability to determine whether prospective jurors held beliefs regarding the death penalty which would make them unable to impartially follow the court’s instructions and evaluate the evidence. (AOB 93-94.) A capital defendantis not denied due processor the right to an impartial jury undereither the state or federal constitution by impaneling a single jury to determine both guilt and penalty verdicts. (Lockhart v. McCree (1986) 476 U.S. 162, 182-183; People v. Rich (1988) 45 Cal.3d 1036, 1103-1104; People v. Miranda (1987) 44 Cal.3d 57, 79.) In People v. Fields (1983) 35 Cal.3d 329, this Court noted the “long established legislative preference for a single jury qualified to try both phasesofthetrial,” and additional valid considerations favoring one jury: Since the penalty jury must take into account “[t]he circumstances of the crime of which the defendant was convicted . . . and the existence of any special circumstances found to be true” (former Pen. Code, § 190.3, subd. (a)), the case would haveto be retried in major part before the new jury. If on the other hand both juries were impaneled at the onset ofthe guilt trial, the state would incur the delay of double voir dire and the expense of maintaining twojuries in all capital cases, even though manycases terminate before reaching the penalty phase. (Id. at p. 352.) The defendant in People v. Rowland (1992) 4 Cal.4th 238, made the same claim made by appellant: 104 Asrelevant here, defendant’s argument[for separate juries at the guilt and penalty phases] was effectively bottomed on the desire of counsel to examine prospective jurors in one wayfor the guilt phase andin a different way for the penalty phase. Counsel expressed a belief that “other crimes” evidence might not be presented in the former but would be presented in the latter. They wishedto voir dire prospective penalty phase jurors on such evidence but not prospective guilt phase jurors. (Id. at p. 267.) This Court rejected the claim as follows: The appropriate standard of review is abuse ofdiscretion. [Citation]. [{] No abuse appears. In People v. Nicolaus (1991) 54 Cal 34 551 [286 Cal. Rptr. 628, 817 P.2d 893], we recognized that Penal Codesection 190.4, subdivision (c), “expressesa Clear legislative intent that both the guilt and penalty phases of a capital trial be tried by the same jury.” (54 Cal.3d at p. 572.) There, we held that the “mere desire” of defense counsel “to voir dire in one way for the guilt phase and a different way for the penalty phase” does not constitute ‘good cause’ for deviating from the clear legislative mandate... .” (Jd. at pp. 573-574.) Here, such a [] desire existed — and substantially nothing more. We understand counsel’s wishes in this regard. But we cannot deem them sufficient. (People v. Rowland, supra, 4 Cal.4th at p. 268.) Given this Court’s holdings in Nicolaus and Rowland, appellant’s claim that the trial court abused its discretion in denying his motion for separate juries mustbe rejected. To the extent appellant relies upon People v. Cash (2002) 28 Cal.4th 703 (see AOB 94-95) to support his claim, his reliance is misplaced. In Cash, a prosecution for murder and attempted murder, this Court reversed the death judgment, ruling that the trial court erred by prohibiting defense counsel from asking prospective jurors on voir dire whether they would automatically impose the death penalty if they learned that defendant had committed prior murders (the murders of his grandparents which were 105 introduced during the penalty phase). (/d. at pp. 721-723.) The trial court in this case committed no sucherror. Here, the trial court never ruled that defense counsel was prohibited from questioning prospective jurors as to whether they would automatically imposethe death penalty if appellant had an unchargedprior robbery- murder. Asthetrial court noted, “[defense counsel] would want to conduct voir dire with respect to the 1994 murderincident, in order to determine who would be the appropriate jurors on the penalty phase, but he doesn’t want to conduct that voir dire if we have one jury because it might serve to alert them of evidence of another crime.” (3 RT 620) Tt wae a tectral decision whether defense counsel voir dired the unitary jury on the prior violent act. In fact, the trial court specifically asked defense counsel how many questionshe proposedto ask the unitary jury regarding the uncharged robbery murder. (3 RT 538.) Defense counsel was adamantthat his choice wasnot to question the prospective jurors in this regard. (3 RT 539-540.) This Court in People v. Ray (1996) 13 Cal.4th 313, rejected the claim madehere: The claim fails for reasons we have previously explained. “In almost every capitaltrial, regardless of the special circumstancesalleged, there will be evidence introduced [in aggravation] at the penalty phase . . . which would otherwise be irrelevant or inadmissible in the determination of guilt. Defense counsel are routinely faced with difficult tactical decisions in havingto fashion voir dire inquiries that probe for possible penalty phase biases regarding such evidence, while stopping short of revealing information otherwise prejudicial and excludable in the guilt phase. Certainly such will almost always be the case wherethe special circumstancealleged is a prior murder or murders.” (People v. Nicolaus, supra, 54 Cal.3d 551, 573.) Defendantcites no authority for the proposition that a death penalty schemeis constitutionally invalid unlessit presents the defense with no difficult tactical choices in conducting voir dire or persuading jurors to reject a death sentence. (See People v. Pride (1992) 3 Cal.4th 195, 252 106 [separate juries not required to prevent jury from “blam[ing] the defense for withholding” evidence of prior convictions and other violent crimesat guilt phase]; People v. Taylor, supra, 52 Cal.3d 719, 737-738 [separate juries not required to prevent penalty jury from questioning “credibility” of mental defense where defendant presented no evidenceat guilt phase].) As before, we decline to invalidate the scheme simply becauseit establishes a single-jury procedure that was followedhere. (Id. at pp. 322-323.) In any case, “[e]rror in restricting death-qualification voir dire does not invariably require reversal of a judgment of death. (People v. Cunningham (2001) 25 Cal.4th 926, 974 [].)” (People v. Cash, supra, 28 Cal.4th at p. 722.) The trial court here went to great lengths to work with the defense to structure voir dire to elicit information defense sought and to “minimize the impact of making inquiry into other crimes.” (3 RT 713, see also 3 RT 534, 536, 711-715.) For example, the court revised question no. 111 of the written questionnaire which originally read “Do you believe the death penalty should also be imposed on one, who murders a human being; two, commits multiple murders on the same occasion; and three, murders his spouse and\or child,” by striking theitalicized phrase “on the same occasion,” thereby encompassing a prior murder suchas appellant’s uncharged Bryant robbery-murder. (4 RT 780-781; italics added.) Hence, any alleged error was harmlessin this case. B. The Trial Court Did Not Abuse Its Discretion in Denying Appellant’s Motion for Individual Death Qualifying Voir Dire Appellant next arguesthatthe trial court erred by failing to permit sequestered voir dire for the death-qualifying questions. (AOB 96-99.) In People v. Waidla (2000) 22 Cal.4th 690, this Court explained the relevant legal principles: Section 223 of the Code of Civil Procedure provides, among other things, that, “[i]n a criminal case,”the trial court 107 has “discretion in the manner in which”it conducts the voir dire of prospective jurors. (Code Civ. Proc., § 223.) But it also providesthat, in all such cases, including those involving the death penalty,the trial court must conduct the voir dire of “any prospective jurors . . .. where practicable, . . . in the presence of the other” prospective “jurors... .” (/bid) In doingso,it “abrogates” (Covarrubias v. Superior Court (1998) 60 Cal.App.4th 1168, 1171) the holding of Hovey v. Superior Court (1980) 28 Cal.3d 1[], wherein we “declare[d], pursuantto [our] supervisory authority over California criminal procedure, that in future capital cases that portion of the voir dire of each prospective juror which deals with” his views on the death penalty “should be done individually and in sequestration”(id. at p. 80, fn. omitted). An appellate court applies the abuse of discretion standard of review to a trial court’s granting or denial of a motion on the conductof the voir dire of prospective jurors. (See Code Civ.Proc., § 223.) A trial court abusesits discretion whenits ruling “fall[s] ‘outside the bounds of reason.”” (People v. Ochoa (1998) 19 Cal.4th 353, 408, quoting People v. DeSantis (1992) 2 Cal.4th 1198, 1226.) (id. at pp. 713-714.) This Court recently reaffirmed its decision in Waidla in People v. Hoyos (2007) 41 Cal.4th 872: Defendantclaimsthe trial court erred in denying his motion for individual and sequestered juror voir dire, and thus violated his right to trial by an impartial jury and to due process of law under the Sixth and Fourteenth amendments to the United States Constitution. .. . [] Defendant’s claim fails on the merits, however, because, as defendant concedes, Code of Civil Procedure section 223, enacted as part of Proposition 115, abrogated the former individual voir dire procedure directed by Hovey v. Superior Court (1980) 28 Cal.3d 1, 80. (id. at pp. 898-899.) 108 Thetrial court’s ruling here clearly indicates that the court understood its discretion under the law and reasonably chose to conduct voir dire as proscribed by CodeofCivil Proceduresection 223.* Thecourt stated: ... defendant movesfor individual sequestered voir dire. And this too is denied. The defense contends that group questioning would hinderthe effective eliciting of information. But remember[,] most of this informationis being elicited by form of a written questionnaire, which [prospective jurors] will be answering at home, numberone. ** Code of Civil Procedure section 223 provides: In a criminal case, the court shall conductan initial examination of prospective jurors. The court may submit to the prospective jurors additional questions requested by the parties as it deems proper. Upon completion of the court’s initial examination, counsel for each party shall have the right to examine, by oral and direct questioning, any orall of the prospective jurors. The court may, in the exercise ofits discretion, limit the oral and direct questioning of prospective jurors by counsel. The court may specify the maximum amount of time that counsel for each party may question an individual juror, or may specify an aggregate amountof time for each party, which can then be allocated amongthe prospective jurors by counsel. Voir dire of any prospective juror shall, where practicable, occur in the presenceofthe other jurors in all criminal cases, including death penalty cases. Examination of prospective jurors shall be conducted only in aid of the exercise of challenges for cause. Thetrial court’s exercise of its discretion in the mannerin which voir dire is conducted, including any limitation on the time which will be allowed for direct questioning of prospective Jurors by counsel and any determination that a questionis notin aid of the exercise of challenges for cause, shall not cause any conviction to be reversed unless the exercise of that discretion has resulted in a miscarriage ofjustice, as specified in Section 13 of Article VI of the California Constitution. 109 Numbertwo,it will be made clear to the jurors thatif they wantto ask any question outside the presence ofthe other jurors, they’re entirely welcometo that. I’ll honortheir request. We’ll meet — if they feel they can speak more freely about any subject matter by simply meeting with us, Counsel, defendant and myself, outside the presenceof the jury, I will honorthat request. And I’m going to remind them it’s important that they speak openly aboutall these matters. Andif it will help them to speak to us in confidence, then I will accommodate them. Thirdly, there’s an argumenthere that a non-sequestered voir dire would produce conviction-prone juries. I find that to be speculative. More importantly, any bias that’s inherent in that process I think would beeasily corrected by appropriate admonishments. (3 RT 714-715.) Relying on Hovey v. Superior Court (1980) 28 Cal.3d 1, appellant argues that “group voir dire contributes to the ‘tendency of a death- qualified jury to presume guilt and expect conviction.”” (AOB 96.) As appellant acknowledges, however, the Hovey rule for individual sequestered voir dire on death qualifying issues was abrogated by Code of Civil Procedure section 223. (AOB96.) Appellantalso argues that becausethetrial court “questioned jurors about their viewsin front ofall the other prospectivejurors, the jurors actually impaneled were repeatedly focused upon the death penalty in advanceof any determinationas to appellant’s culpability.” (AOB 98.) This claim ignoresthe letter of the law. Code of Civil Procedure 223 mandatesthat “[vJoir dire of any prospective juror shall, where practicable, occur in the presence ofthe other jurorsin all criminal cases, including death penalty cases.” Appellant’s claim also ignores defense counsel’s ability to address this concern with prospective jurors. For example,after the court voir-dired each groupofpotential jurors, the attorneys were given 110 the opportunity to ask additional questions. Followingthefirst group, defense counsel took advantage of this opportunity as follows: Do you understand that we have spent — you have spent with the Judge, you have spentin the privacy of your home,thinking about what your approach about the death penalty would be? So, therefore, it is—seems,I believe, that this is a trial about whether or not Mr. Henriquez is goingto get the death penalty. Andso, I think that your natural tendency would be to—to focus on that and say that counsel believes or that the judge believes that this is going to be about the death penalty. . . [J]... But I’m worried, and Ms. Levine — we are worried that because there’s so muchfocus on this, that you think and have an assumption. AndI wantedto tell you the issue in this case is whether you will ever get to that — a second phase. (5 RT 1167-1168.) Defense counsel continued: Myquestionto all of you: Has the process that you have gone through here, the focus, the thinking about the death penalty, made youthink that that is — it’s inevitable or quite likely or quite probable that we are ever going to get to that? (5 RT 1168-1169.) Potential Juror Orlando answered: At least in my view,that’s the end result. What weare talking about nghthereis the end result. It’s like a staircase, and the being at the end of the hall. So, there’s a whole lot in between before we can even getto that. So, there’s no sense me even thinking aboutthat right now. (5 RT 1169.) Defense counsel further stated: I’m worried aboutthe focus on it then givesit a natural momentum. And I’m asking you whether now,in summary, becauseI see the clock expiring[, | let’s put both of those concepts together, okay? Aside from the question of whether or not there might ever be a second phase beyondthis culpability phase, whatis your attitude? Can you assure Mr. Henriquez, can you assure 111 the People, that you can be fair on the issues that the Judge has raised through the questionnaire and his questions that you can be fair, given the fact that the defense in this case strongly will be contesting whether Mr. Henriquezis guilty of premeditated murder? Do you understand that? And weare acknowledgingthat he killed — I mean,I don’t have enough time tosay that I can’t tell you how profoundly sad weall are to be here.. . [{] . . . My question1s: Doyou,will you allow either of these two factors that exist now, to impact you in terms of your approachtothe decision in the culpability phase aboutguilt on that question of premeditation? That’s my question. (5 RT 1169-1170.) Where uponeachofthe eight potential jurors answered no. (5 RT 1170.) Although given the opportunity to repeat this line of questioning with the other prospective jurors, defense counsel declined to do so. (See 6 RT 1410-1425; 1544-1555; 1646-1655.) Appellant also arguesthat“several jurors indicated on their questionnaires that they would automatically vote to impose the death penalty in certain situations.” (AOB 97.) Appellant complainsthat “[i]n response, the court merely asked these jurors leading questions without ensuring that the jurors truly understoodthatthe death penalty wasnot automatic.” (AOB 97 citing 5 RT 1103, 1120-1121, 1126-1127; 6 RT 1386-1389, 1401-1402, 1408-1409, 1522.) The record shows otherwise. Throughoutvoir dire, the trial court repeatedly admonished the potential jurors who indicatedthat the death penalty should be imposed in certain situations, that the death penalty was not automatic. (5 RT 1078-1079, 1091-1093, 1103, 1120-1121, 1126-1127, 1137, 1143, 1183, 1239, 1248- 1249, 1274; 6 RT 1385, 1401-1402, 1409, 1522, 1531, 1543-1544, 1609- 1612, 1640, 1644, 1671, 1676.) Thetrial court also repeatedly asked those 112 potential jurors if they could follow the law asinstructed despite their beliefs. (5 RT 1077-1079, 1091, 1093, 1103, 1105, 1121, 1127, 1129-1130, 1137, 1144, 1183, 1239, 1241, 1249, 1274; 6 RT 1385, 1402, 1409, 1522, 1531, 1544, 1612, 1640-1641, 1645, 1671, 1676.) Appellant counters that “those [potential jurors] who expressed doubts about the death penalty were similarly asked questionsthat essentially tracked the [written] questionnaire, without permitting any efforts at rehabilitating them.” (AOB 97.) Not so. The trial court admonished those Jurors who expressed doubts about the death penalty that the law required them to consider the aggravating and mitigating factors presented in this case to determine the appropriate penalty, and further asked whether they could follow the law or whether their beliefs were so strong that they prohibited them from doing so. (5 RT 1094-1096; 6 RT 1337-1341, 1362- 1365, 1402-1406, 1453 -1456, 1504-1509, 1513-1515; 8 RT 1600-1602, 1630-1633.) Contrary to appellant’s claim then (AOB 97-98), the trial court adequately voir dired all potential jurors to determineif their beliefs regarding the death penalty would prevent them from fairly considering this case. Additionally, the trial court repeatedly noted that it was the court’s responsibility to ensure that the panel was comprised ofjurors who could follow the law. At one point the trial court addressed the potential jurors beforeit: So you understand — and I hopeall of you understand — there’s notreally any particular situation where the law requires the imposition of the death penalty. It’s more complicated than that, you understandthat. No one ofthese situations, the state of the law in California never requires that the death penalty be imposed for murdering a human being. It never requires that the death penalty be imposed simply for the commission of multiple 113 murders. It never requires that a person who murders his spouse and/or child be put to death. You all understand that. Whatthe law is, is that there are certain types of murders that when accompanied by so-called special circumstances, can make youeligible for imposition of death orlife without possibility of parole. But even if you commit one of these murders, andit’s accompanied by oneof these special circumstancessuchthat you are eligible for one or the other of these punishments,that, in and ofitself, does not require you to impose the death penalty, or, alternatively, does not require you to mmpose life withont possibility of parole. You have to hear the aggravating factors and the mitigating factors, and arrive at your decisionafter that. [{]. . . [{] We’ll go into great length about what aggravating and mitigating factors are at the appropriate time, but I read you a general description about whatthese factors are aboutearlier, and you’d have to consider and weighall of those before you can reach a decision as to the appropriate punishment. . You understandthat?. . . [J] . . . [J] I hope it’s clear to everybody,the law in California does not require the automatic imposition of the death penalty in any typeofcase. Is that understood?[] . . .[]] Does anybody have any problem with that? (5 RT 1222-1223.) The court continued: For example, there was a question here, “Are there types of factual circumstances for which you feel the death penalty should always be imposed?” And you [potential juror Marcel Hetu] said yes. Now, I want to make clear. You can havea view thatit should always be imposed. You can have a view that there are certain situations where it should always be imposed. 114 Any one of you can have a view thatthere are certain situations where it should always be imposedorsituations where it never should be imposed. But what’s important to me is you understand and that what you’re willing to do is irrespective of your particular view, are you willing to comply with the law, which doesnot provide for the death penalty in any circumstance. [{]] Do you understand that? . . [{] . . .[§] If people have trouble with that, please raise your hand and let me know. Again, we’re not here as legislators, where we decide whatthe law should be. We’re here as jurors. Andin the State of California, the jurors must follow the law, whether you agree with the law or not. So we might have viewsthat are inconsistent with what the law is, but as long as we are willing to subjugate our views to the law and follow the law and whether weagree with it or not, then you can serve as a juror. If, however, we feel that our views take precedence over the law, such that we can’t render a decision in accordance with the law, then we shouldn’t be serving as jurors. (5 RT 1224-1225.) Later, to a group of potential jurors, the court stressed the point as follows: [I]t really pinpoints what I’m principally concerned with. I recognize weall have different views. And having different views would be particularly important if we weresitting here as a legislature. But we’re not. We’re sitting here as potential jurors. Andasjurors, the key question is: Irrespective of what your views are, can you follow the law? Can you abide by the law? Are you willing to listen to the law in this matter and apply the law to the facts, as you determinethose facts to be, and in that wayarrive at your decision? I wanted to begin our session this morning by referencing them, because | think it will better help you understand some of the questions I’m going to propose. 115 (6 RT 1313-1314.) The law requiresthatthe trial court voir dire prospective jurorsin the presence of other prospective jurors. (Code of Civ. Proc. § 223.) Based on the foregoing, appellant has failed to show thatthe decision ofthe tal court not to conduct sequestered voir dire was an abuseofdiscretion. C. The Trial Court’s Denial of Defense Counsel’s Request To Conduct Voir Dire a Second Time Before the Penalty Phase Was Not an Abuseof Discretion Appellantclaimsthatafter the guilt phase, the trial court erred by not permitting defense to voir dire the jury again before the penalty phase. (AOB 99-101.) On January 14, 2000,the prosecutor indicatedit intendedto introduce evidence about the uncharged 1994 Bryant robbery-murder during the penalty phaseoftrial. (14 RT 3345.) Thetrial court stated thatit usually conductedall jury voir dire before the guilt phase oftrial, but asked both parties to prepare argument as to whether the defense should be allowedto conduct additional jury voir dire about the uncharged robbery-murderprior to the penalty phase. (14 RT 3346.) The prosecutor objected. (14 RT 3347.) On January 24, 2000, defense proposed four questions for the court to ask prior to the commencementof the penalty phase. 3 (14 RT 3378-3379.) *3 The four questions proposed by defense counsel were as follows: 1. Having heard all of the evidence that was presented to you at the culpability phase (and having found Mr. Henriquez guilty of two counts of first-degree murder, one count of second- degree murder, and certain enhancements) have you formed an opinionas to the appropriate penalty in this case? 2. At the penalty phase ofa capital case, the prosecutoris entitled to introduce evidence of other crimes committed by a defendant duringhis lifetime. Based on the evidence that (continued...) 116 Defense counsel argued that there was good cause for additional voir dire because evidence of appellant’s uncharged robbery-murder would be introduced during the penalty phase, possibly warranting a new penalty jury. (14 RT 3432-3433.) The prosecutor objected to the reopening of voir dire after the trial court’s initial ruling regarding a unitary jury and defense counsel’s decision not to question the jury on the uncharged robbery- murderat the beginning of tnal. (14 RT 3379, 3433-3435; 4CT 1204-1210.) (...continued) you have already heard and the findings that you have already made in the culpability phase, do you have any assumptions about whether Mr. Henriquez may have committed other crimesnot yet brought to your attention? 3. The judge will instruct you that, in determining the appropriate penalty in this case, you are not allowed to consider evidence of any other crime unless youfirst find that the prosecutor has proven to you, beyond a reasonable doubt, that the defendant committed that other crime. Given that you have already heard much evidence against Mr. Henriquez and have already found him guilty of a number of crimes, do you think you can begin now with the presumption that Mr. Henriquez is not guilty of any other crime, and discard that presumption if and onlyif the prosecution proves to you beyond a reasonable doubt each and every element of any other“crimes”? 4. Together with the evidence that you have already heard in the culpability phase, if you were to hear additional evidencethat the defendant had participated in a robbery wherethe victim had been killed, would you automatically vote for imposition of the death penalty? (AOB 99-100 citing 14RT 3432.) 117 Thetrial court, relying on People v. Taylor (1990) 52 Cal.3d 719, 737-738, concluded that defense did not demonstrate good cause to conduct a second voir dire: Bottom line, is that this jury was voir dired at the beginning of this trial extensively with respect to a number of subject matters as a result of which the Court concludedit had a jury that was prepared, willing and able to make the decisions in this case in a fair and impartial mannerand,in particular, in accordance with the law, regardless of the views, the perspectives, the sentiments, and so forth. The Court wassatisfied that we had a jury that was willing to follow the law on these subject matters. Nothing has been brought to myattention that would call into question einer their ability or their willingness to do this. And the fact that they have nowsat through the culpability phase does nothing and of itself provide any good cause to re-examine them. But the cases are pretty clear on that. People [v.] Taylor, People [v.] Malone, in particular. If they did provide good cause, then there would be a duty to re-examineafter every culpability phase. And surely, that’s not contemplated by the law and seems inconsistent with 190.4 (c). Nospecific showing persuasive to the Court of good cause having been made,the request to voir dire the jury in the mannerrequested by defendantis denied. (14 RT 3468-3469.) Appellant argues that as a result of the trial court’s ruling, counsel was effectively precluded from inquiring about the impact of the uncharged Bryant robbery-murder that was introduced by the prosecution as an ageravating factor during the penalty phase. (AOB 99-102.) “Voir dire is not to be reopened on speculation that good cause to impanel a new jury may thereby be discovered; rather, a showing of good causeis a prerequisite to reopening.” (People v. Fauber (1992) 2 Cal.4th 792, 846; see also People v. Kipp (1998) 18 Cal.4th 349, 368.) “Good causeis established only by facts which ‘appear in the record as a demonstrable 118 reality,’ and defendant cites none.” (People v. Williams, supra, 16 Cal.4th at p. 229.) As argued above, the desire to voir dire jurors in a different way is not good cause for separate juries. (People v. Catlin (2001) 26 Cal.4th 81, 113-114; People v. Rowland, supra, 4 Cal.4th at pp. 267-269; see also People v. Kraft (2000) 23 Cal.4th 978, 1069 [expert testimony by a psychologist that guilt-phase jurors would be less able to give defendant a fair penalty trial than a newly selected jury was generally applicable to any capital case involving proof of other crimesin the penalty phase; thus, was insufficient to demonstrate prejudice].) Appellantfails to sustain his burden of showing good cause to empanel a secondjury for the penalty phase,or to justify the reopening of voir dire. Appellant ignores the trial court’s repeated instructions admonishing the jury to follow the law. Healso ignoresthetrial court’s voir dire of each potential juror about his or her belief as to whether the death penalty should be imposed on a defendant who commits multiple murders, thereby encompassinghisor her belief about the uncharged robbery-murder. Appellant “has raised only speculation that some jurors may have entertained some hidden bias regarding the testimony [concerning the uncharged robbery-murder] or that they may have prejudgedthe issue of penalty. Hefails to establish error, constitutional or otherwise.” (People v. Fauber, supra, 2 Cal.4th at p. 846.) VITI. THE TRIAL COURT PROPERLY ADMITTED VICTIM IMPACT EVIDENCEAT THE PENALTY PHASE; THE PROSECUTOR DID NOT COMMIT MISCONDUCT BY ARGUING VENGEANCE Appellant contendsthat the trial court erred by allowing the prosecutor to present victim impact evidenceat the penalty trial, and that the prosecutor committed misconduct by arguing for vengeance on behalf of the family in closing argument. (AOB 102.) Appellant’s claims are without basis. 119 A. The Admission of Victim Impact Evidence Was Not an Abuse OfDiscretion 1. Relevant proceedings On January 14, 2000, defense counsel expressed concern aboutthe breadth of victim impact testimony that the prosecutor intended to present at the penalty phase. (14 RT 3357-3358.) On January 19, 2000, defense counselfiled motions to exclude “victim impact” evidence, for discovery, and to preview the People’s proposed victim impact evidence. (4 CT 1157- 1170.) Counsel argued that victim impact evidence must stay “within the confines of PC sec. 190.3(a)”,”* and that “[cJharacterizations or opivi>ns concerningthe crime, the defendant, or the appropriate sentence by the victim’s family membersare highly prejudicial and must be excluded under the Eighth and Fourteenth Amendments to the United States Constitution.” (4 CT 1170.) Thetrial court agreed with defense counsel that the victims’ family members should not characterize and/or give opinions about the crime. (14 RT 3407.) The court indicated it would admonish the witnesses to this end prior to their testimony. (14 RT 3408.) Defense counsel requested that the prosecutor provide counsel with the victim impact evidenceshe plannedto present and objected to victim impact testimony by non-family members. (14 RT 3413-3415.) The prosecutor indicated that Angelique Foster, a friend of Carmen’s, would *4 Section 190.3, subdivision (a) provides: In determining the penalty, the trier of fact shall take into account any of the following factors if relevant: (a) The circumstancesof the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances foundto be true pursuant to Section 190.1. 120 testify about Zuri, “not about the impact so much on her(Foster), but the impact onthe child victim and the mother victim.” (14 RT 3416." The court summarized: There are two aspects here. Firstofall, it appears that Ms. Foster is the only non family memberthat willtestify as to so- called victim impact evidence. And it appears that the People are going to use her notto testify about the impact on her, but the impact on the victims, Zuri and mother. In so far as her testimony relates to the impact the crime had on——onthe child, Zuri and the mother, it is in my view clearly admissible. In so far as the People want to develop the impactit had on Ms.Foster, before going into it, I want you to put me on notice of that, that you would like to do that or intend to do that. But, my general view is that under certain circumstances, victim impact evidence can relate to impact on non family membersand, my further feelingis that in this situation the relationship of Ms. Foster is — to — to the victimsin this caseis such that impact on her is probably admissible. But I want — but that’s just my tentative conclusion and, before you gointothat,I want to be apprised ofthat. (14 RT 3419-3420.) The court continued: I mean if you paint a picture of Zuri playing with hertoys, a happy, healthy child playing with the toys, and so forth, and paint that kind of a picture, and whatthe child is doing on a daily basis and the kind ofthings she observed herself taking care of the child, the jury will get a greater sense of how — of what kind of crime this was. It’s one thingto kill a child of whatever — however painted by this witness, as opposed to one who may have been infirm already, physically ill, limited mentally and/or physically. These are things that a jury can take into account. If you snuff out of existence a precious flower, it’s one thing. If you put to death someone whois an incapacitated °° The prosecutor explained that Angelique Foster would paint a fuller picture of Zuri and Carmenso the jury could understand the mother- child relationship and the effect on Carmen when she learned Zuri was dead. (14 RT 3421.) 121 child, it’s another thing, in terms of what kind of a moral judgmentis to be passed on that kind of an act. (14 RT 3421-3422.) Defense counsel also objected to multiple witnesses testifying about each victims’ individuality. (14 RT 3422.) The court responded: Butthere is no suggestion here that the People intend to introduce redundant testimony where it might raise such concerns and, as a general observation, which I think both of you appreciate, you know — I see nothing wrong with different peopletestifying abouttheir particular experiences with the child or one of the other victims. Though it all deals with the child, people experience it in different ways, different perspectives, and shedslight. If it’s simply repetitive, then we have another problem. But that will become quite apparent. If there was some suggestion here that the People were going to go in that direction, simply inundating us with redundanttestimony, then I would say: Okay[,] I want to hear in more detail. There’s nothing to lead [the court] to believe the People intend to do that. They may introducea lot of evidence about Zuri, but I think each of them would present different perspectives. (14 RT 3422-3423.) Defense counsel further argued that the victim impact witnesses should be limited to “what the defendant knew, because that goes to what his blameworthinessis in this incident.” (14 RT 3424-3425.) The court countered that the argument had been argued and rejected by numerous courts. (14 RT 3425.) The court tentatively ruled: First, the defendant’s motion for discovery and preview of People’s proposed victim impact evidence is denied. Requiring the People to preview all the impact evidenceis unnecessary in the circumstances of the case and discovery has been appropriately provided by the People in accordance with the law. I mightsay, that notice of aggravating factors in this 122 matter has also been given, given in a reasonable and timely fashion. Defendant’s motion to exclude victim impact evidenceis denied, except as I have indicated that Ms. Georgiou, if you are going to have Ms. Foster talk about the impact on her, as opposed to the impact on the victims, I want to receive prior notice so that I can see exactly whatshe 1s goingto testify to and make a determine — make a morespecific ruling on that matter, okay? (14 RT 3426.) Before the prosecution’s victim impact witnessestestified, the court admonished the witnessesas follows: And I believe all of you are in the courtroom. From my recollection from the culpability phase, there are a couple of remarks that I want to make. You’re going to be called, folks, what are called victim impact witnesses. Miss Georgiouis going to call you to the stand and ask you questions about Carmen andabout Zuri and about the impact of their absence on you. Thoseare all proper areas for her to get into and for you to answer. There are certain areas where you can’t go into as witnesses. One would be to characterize the crimesin this case or characterize the defendant. Those are conclusionsfor the jury to come to hearingall the evidence they’re hearing, as you know, during this penalty phase. It’s also called aggravating circumstancesand also mitigating circumstances,all bad things relating — that the law allows the People to introducerelating to the defendant and his record, character and the circumstances related to the offense and then all good things that the defense wantto bring to the attention of the jury relating to Mr. Henriquez. Then the jury is going to draw its conclusions about Mr. Henriquez in connection with what penalty to impose and not impose, and it would not be proper for you to volunteer your opinions as to Mr. Henriquezoras to the crimes. Whatyou can testify to and what you’re going to be asked about is how the crimesofthis case impacted you and 123 impacted the immediate victims, the crimes to your daughter and granddaughterandsister and friend. Andsolisten to the question that Miss Georgiou asks of you andrestrict your answers, ifyou would,to the specific questions. (14 RT 3620-3621.) The court continued: But they are going to be ableto testify as to the impact upon them as to the crimes and the impact about their daughter. The thing is we talk about what it means to you and whateffect it’s had on your family and obviously whateffect it had on your daughter and grandchild as opposed to mentioning opinions or characterizations about the crime. For example, just to give youan illustration. It’s for the jury to decide how gruesomeor heinousthis crime was. You don’t haveto tell the jury it’s — it was a heinous crime. They’re going to reach their conclusions about what the crime wasall aboutafter they hear evidence about the circumstancesof the crime, which they — and a good part which they’ve already heard and once they heard about what impact this has had on all of you. Let them draw their conclusions about how heinousor gruesome or whatever feelings you may have of the crime as opposed to your telling them. Similarly, they’re going to draw their own conclusions about Mr. Henriquez. It would be improperfor you totell them your feelings about Mr. Henriquez. (14 RT 3621-3622.) After the witnessestestified, defense counsel made a motion to strike certain portions of Angelique Foster’s testimony. (14 RT 3655-3656.) Counsel argued that the prosecutor’s questions to Ms. Foster about “how do you feel” and “what has this done to you?” exceededthetrial court’s ruling. (14 RT 3656.) The court found the prosecutor’s questioning of Ms. Foster appropriate. (14 RT 3663-3664.) 124 Defense counsel also argued that the prosecutor’s questions to Ms. Foster and Heidi Jones about their responsesto the circumstancesofthe crime(i.e., murder vs. accident) constituted an improper“characterization of the crime.” (14 RT 3657.) The court disagreed: (14 RT 3657.) I took those to be questions directed towards the impact ofthis particular crime on them, the impactthat the crime had on them, the nature of the crime, the nature of whatit is that took the lives of these people impacted them in a certain way. There wasno prohibition — I don’t think there was a prohibition on going and making inquiry aboutthat kind of subject matter. Quite the contrary. I think that’s a legitimate area of inquiry, the fact that it was a murder has an impact on you andto be able to develop that in front of the jury I think is appropriate. It’s — it relates to impacton the victimsof the crime. [{]...[{].... [Ml]y feeling againis it was proper inquiry with regards to the impact that the crime hadon the[the victim, family, and friends]. (14 RT 3657-3658.) The court summarized: There were two issues. One wasthe issue about evidence could be presented about impact of these murders on a non family member. And that’s one issue. And with respect to that, you did indicate you didn’t intend to develop that. We had some discussion, and I said it would depend uponthe particular circumstances a person could have, in my view,that a person could be in sucha relationship to the victims that you could have testimony about that. But that’s separate and apart from the issue that Mr. Coleman [defense counsel] has referred to now. Whathe’s referred to now and whathe objects to was you’re asking questions of the witnesses that had to do with the impact on them becauseof the type of — cause of the death, and he felt that that was asking them to characterize — to characterize the crime. And I didn’t think that was being developedfor that purpose. I thought it was being developed and it wascertainly admitted for the purpose that that has impacted them. In other words, the type of crimeit was had a particular impact on them. (14 RT 3664-3665.) 125 On January 31, 2000, appellant filed a motion for mistrial on the groundsthat the testimony elicited from the victim impact witnesses “contradicted the prosecutor’s representations” and “exceeded whatis constitutionally andstatutorily permitted and whatthis court had expressly authorized[,}” and that the prejudice caused “cannotbe cured bya court’s instruction or admonition”to the jury. (4 CT 1231, 1234.) Specifically, defense counsel objected to the prosecutor’s asking 1) Angelique Foster about the impact of the killings on Ms. Foster herself because the question exceededthe trial court’s ruling; 2) “what they [Ms. Foster and Heidi Jones] were feeling” when they learned howthe victims died in comparison to how they would feel if the victims were killed in a car accident because “Ts]Juch questioning implicitly asks the witness to characterize the crime and/or the defendant”. .. . ; and 3) Heidi Jonesif the killings impacted her (Heidi’s) pregnancy. (4 CT 123 1-1233.)°° On February 2, 2000, the trial court held a hearing and denied the motion for mistrial. (17 RT 4207- 4217.) Asto the prosecutor exceeding the trial court’s ruling by asking Foster about the umpactof the killings on her, the court stated: Second, the second type of conduct complained about has to do with the relevancy of impact evidence, impactof the crimes on — that are at issue in this case on Ms.Foster. I do think that Ms. Georgiou intentionally or unintentionally — for the moment, I will leave it at that, won’t characterizeit as either intentional or unintentional though at some later point we may have to get into that — I do think she acted in contravention of the Court’s instruction that she not develop victim impact evidence with respect to Ms. Foster, without first approaching the bench and giving both Court and counsel for the defense an opportunity to address the issue. *° In responseto the latter question, Heiditestified that she wentinto premature labor. (14 RT 3642.) 126 I—I agree with her, however, that had — in effect, that had that issue been presented to the Court, the Court would have ruled, as I suggested earlier that I was inclined to do,that that evidence of the impact on Ms. Foster is admissible as part of the circumstancesof the crime under 190.3 (a). When onereadsthe rationale which led to the Supreme Court expanding impact evidence beyond impact upon the defendant to impact on the family, the rationale is equally applicable to people whoare not as strictly speaking or technically speaking, family members. Especially, it seems to me,that circumstancesof the crime, certainly includes impact upon people who,like Ms. Foster, stand in a familial relationship to the victimsin this case. AsI pointed out to you during the course ofthe trial, remember her testimony was that she considered herself and — as motherto Zuri, and the testimony was given that the nature and extent of her child care indeed puther in a position ofin loco parentis. In my view, without getting into — without making a decision of how far we can examine impact to beyondthe family, whether we have to go — whether we can consider impact on the community at large, or other people, certainly in this case, given the relationship of Foster to the children and to the mother involved, impact evidence of impact on heris properly admitted, would be proper under 190.3(a). So, there’s certainly no prejudice by Ms. Georgiou’s conduct, intentional or unintentional, of failing to give the Court and counsel an opportunity to address the issue further, before — before going intoit. (17 RT 4213-4214.) Asto the prosecutor asking Foster and Heidi Jones abouttheir feelings upon learning of the nature of the crimesthe trial court continued: The third kind of conductthat was complained of were questions asked of Ms. Foster and of family members about forms of impact evidence on them, but. . . require them in some sense to characterize or involve characterizations.. . of the defendant’s conduct. And I hadinstructed all family members — I don’t rememberif Ms. Foster was among them. But I had instructed them — and I had instructed Ms. Georgiou not to ask 127 questions that would call upon them to characterize defendantor the crimesin this case. I was thinking when I so instructed her ofsituations such as we had during the culpability phase where I believe mother referred to the crime as heinous, and maybe Mr. Stewart also characterized the crime. I can’t rememberthat, specifically. But it wasthat sort of thing I was seeking to avoid. Seeking to avoid counsel for the prosecution soliciting witnesses testifying in a manner that would characterize defendantasevil, as the crimes — characterizing the crimes as heinous, or otherwise. I don’t think the questions that were asked of these people, specifically the question of: How did you feel, learning that the victims had died and the way they actually did in this case, as opposedto say if they had died in a car accident? | don’t believe that that was the kind of question that I intended to exclude, even though indirectly the responses to those makes — mayinvolve characterization of the crime. In so far as the family members are concerned,that’s clearly impact evidence, and because they were — and Ms.Foster, for purposesof this discussion,I will characterize as a family member, as well. The impact on her and on the family members of this particular kind of crime, and the nature of the crime,is something that Ms. Foster — that I believe the government can get into, illustrating that this crime hada particular impact on them that’s distinguishable from the kind of impact that the deaths of these people may havehadif the agency of their death was something other than the — from some criminal conduct involved in this matter. (17 RT 4215-4216.) There was no discussion regarding counsel’s objection to the prosecutor asking Heidi Jones about how thekillings impacted her pregnancy. 2. Applicable legal principles “In a capital trial, evidence showing the direct impact of the defendant’s acts onthe victims’ friends and family is not barred by the Eighth or Fourteenth Amendmentsto the federal Constitution.” (People v. 128 Pollock (2004) 32 Cal.4th 1153, 1180; see also Payne v. Tennessee (1991) 501 U.S. 808, 825-827.) “[A] state may properly concludethat for the jury to assess meaningfully the defendant’s moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the defendant. “[T]he state has a legitimate interest in counteracting the mitigating evidence which the defendantis entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.’ [Citation.]” (Payne v. Tennessee, supra, at p. 825.) UnderCalifornia law, victim impact evidence is admissible at the penalty phase undersection 190.3, factor (a), as a circumstanceofthe crime. (People v. Boyette (2002) 29 Cal.4th 381, 444; People v. Edwards (1991) 54 Cal.3d 787, 835-836.) “The jury, in making a normative decision whether the defendant should live or die, 1s entitled to hear how the defendant’s crime has harmed the survivors. [Citation.]” (People v. Brown, supra, 31 Cal.4th at p. 573.) Admission of victim impact evidence is subject to the trial court’s discretion. (See People v. Raley, supra, 2 Cal.4th at p. 916.) 3. Argument Appellant argues thatthe trial court exceeded the permitted scope for victim impact evidence by allowing into evidence: 1) victim impact testimony by a non-family member; 2) evidence beyondthe defendant’s knowledgeat the time of the crime; 3) cumulative testimony by several witnesses, and 4) evidence about how the family members learned about the crime. (AOB 108-109.) Appellant acknowledgesthat these claims have been rejected by this Court, but raises them “for purposes of preservation.” (AOB 109.) 129 First, appellant complainsthe trial court erroneously allowed into evidence victim impact testimony from a non-relative. (AOB 108.) This Court has “reject[ed] the suggestion that victim impact evidencein a capital trial is or should be limited to blood relatives.” (People v. Brown, supra, 31 Cal.4th at p. 573; see also People v. Marks (2003) 31 Cal.4th 197, 235-236, People v. Pollock, supra, 32 Cal.4th at p. 1183.) Here, the trial court properly admitted the testimony of Angelique Foster; as the court noted, Angelique hada relationship with the victims and wasin a position of “in loco parentis” to Zuri. (14 RT 3629-3631; 17 RT 4214.) Second, appellant complainsthetrial court permitted “evidence beyond the defendant’s knowledgeat the time of the crime.” (AOB 108.) This Court has rejected the argumentthat the defendant mustanticipate the consequencesofhis acts. “We have approved victim impact testimony from multiple witnesses who were not present at the murder scene and who described circumstances and victim characteristics unknown to the defendant.” (People v. Pollock, supra, 32 Cal.4th at p. 1183, see also People v. Bramit (2009) 46 Cal.4th 1221, 1240; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1057; People v. Boyette, supra, 29 Cal.4th at pp. 440-441, 443-445.) Third, appellant complains that testimony by four victim impact witnesses was cumulative. (AOB 108.) This Court repeatedly has upheld admission of multiple victim impact witnesses at the penalty phase of a capital trial. (See, e.g., People v. Pollock, supra, 32 Cal.4th at pp. 1166, 1183 [five witnesses for the two married victims]; People v. Boyette, supra, 29 Cal.4th at pp. 440-441, 444 [three witnesses for one victim;five witnesses for another].) In this case, the trial court expressly noted that there was nothing that led it to believe that the prosecutor intended to inundate the jury with redundanttestimony by the victim impact witnesses. Rather, the court 130 believed testimony by the four victim impact witnesses would “present different prospectives.” (14 RT 3423.) The court was correct. Each of the victim impact witnesses had close but different relationships with Carmen and Zun: Harold Jones was Carmen’s father and Zuri’s grandfather. (14 RT 3624-3626.) Heidi Jones was Carmen’s sister-in- law; their babies were due around the same time and the two plannedtoraise their children together. (14 RT 3636, 3639.) Valen Jones was Carmen’s brother, and Angelique Foster was Carmen’s close friend and Zuri’s day care provider. (14 RT 3629-3630, 3645.) Each had a different relationship with the victims and offered a different perspective of Carmen and Zuri’s personalities and relationship, and how their deaths impacted their families’ and friend’s lives. (14 RT 3624-3649.) Appellant claimsthat this Court in People v. Robinson (2005) 37 Cal.4th 592, “recently suggested that there are outer limits to the sheer volume of victim impact evidence allowable before due processis violated.” (AOB 109.) Appellant points out that in Robinson, the four victim impact witnesses “filled 37 pages of reporter’s transcript and focused onthe attributes of each victim and the effects of the murders on the witnesses and their families. The prosecutoralso introduced 22 photographsofthe victimsin life.” (AOB 109.) As appellant acknowledges, this Court in Robinson declined to address the merits of the issue since the defendantfailed to object to the testimony and photographs when offered at the penalty proceedings and therefore waived the issue on appeal. (People v. Robinson, supra, 37 Cal.4th at p. 652.) In anycase, the volumesof victim impact evidence in Robinson are markedly greater than similar evidence in this case. Here, four impact witnessestestified. Their testimony wascontained in 25 pagesofreporter’s transcripts, 32% less than in Robinson. Moreover, the prosecutor only introduced 2 photographs of 13] the victimsin life (14 RT 3633-3644), 99% less than the numberof photos shown in Robinson. Thus, Robinsonis distinguishable. Appellant also references Salazar v. State (Tex. Crim. App. 2002) 90 S.W.3d 330, cited by this Court in Robinson. (AOB 109.) However, this Court in Robinson cites the Salazar case as an “extreme example of . . . a due process infirmity,” ... where “the court admitted a 17-minute ‘video montage’ tribute to the murder victim-approximately 140 photographsset to emotional music, including ‘My Heart Will Go On,’ sung by Celine Dion and featured prominently in the film Titanic (20th Century Fox 1997). [Citation.]” (People v. Robinson, supra, 37 Cal.4th at p. 652.) The victim impactevidence here, 25 pages of transcript and two simple photographs, is deminimus comparedto the evidence introduced in Salazar. Fourth, appellant objects to victim impact “evidence as to how family memberslearned about the crime.” (AOB 108.) In People v. Pollock, supra, 32 Cal.4th at p. 1182, this Court found victim impact evidence admissible, where in “response to a question asking how [a witness] had learnedofthe [victims] deaths and how the newsaffected her, [a witness] testified that someonehadtold her that [the victims] ‘had been brutally murdered, that their throats had beenslit,’ and that this was‘a terrible, terrible shock.’” (/d. at p. 1182.) In contrast here, the witnesses simply responded that they had learned of Carmen and Zuri’s death from their son, husband,or police. (14 RT 3626, 3631-3632, 3641.) These responsesare far less prejudicial than the responseelicited in Pollock. Therefore, appellant’s claim fails. (See e.g., People v. Zamudio (2008) 43 Cal.4th 327, 364-365.) This Court has rejected the claims raised by appellant. Appellant offers no persuasive reasons for this Court to reconsider its conclusions. Additionally, appellant suggests that victim witness Heidi Jones testimony wasspeculative and remote; specifically, her testimony that “she 132 went into premature labor when she heard of the deaths[.]” (AOB 110.) “° To the extent appellant contests the admission of the challenged evidence under Evidence Code section 1102, subdivision (b) (see AOB 131-132), appellant’s claim ignores that at the new tral motion,thetrial court revised its earlier ruling and expressly noted it was not admitting the challenged evidence underthis statute. 156 into the Borderline Personality Disorder rubric; one whosuffers from this disorder has great difficulty controlling anger and emotional swings, inter alia. (16 RT 4069.) Dr. Mueller did not consider appellant to be a typical Antisocial Personality Disorder, whose characteristics would be more instrumental and goal-directed. (16 RT 4070.) Thus, the prosecutor’s evidence that appellant threatened to kill a guard so he could escape from jail was relevant to show that appellant was not an out-of-control rage killer, but a man whoacted with a purpose in mind, and for his own personal advantage; e.g., to escape punishmentfor his crimes. The evidence that appellant threatened to kill a guard to escape from jail thus goes to his character as an instrumental, goal-orientedkiller, and wasnecessary to rebut the experts’ testimony that appellant killed because he was mentally disturbed. Appellantasserts that “none of [the medical experts] testified that appellant’s violent conduct wasneverthe result of planning.” (AOB 132- 133.) Asthe trial court noted, this did not preclude the prosecution from refuting expert testimony that appellant deviated from his usual antisocial behavior(i.e., instrumental and goal- directed) outside the home, when he committed this violent, out-of-control rage killing of Carmen and Zuri on this one occasion inside the home. Asthe court pointed out, the record showsthat “[t]here were a numberof other instances of violent behavior | engagedin by the defendant that appeared . . . to be[] . . . goal oriented. . . . [I}t’s not an unreasonable inference for the jury to conclude from the fact that the defendant engaged in a numberofviolent behaviors [that are goal oriented], that this act of violent behavior[killing Carmen and Zuri] was also committed with that [same] certain state of mind.” (18 RT 4546-4547.) The court added “[t]he fact that there was this additional incident, especially after the crime is committed, supported the propositionthat the leopard has not changedhis spots... .” (18 RT 4547.) Thus, the fact that 157 defense did not introduce evidence that appellant was not capable of planningor acting with purpose did not preclude the prosecution from introducing such evidence to imply that he acted the same whenhe killed Carmen and Zuri. (18 RT 4545-4547.) Finally, appellant argues that “a conversation between two inmates about a hypothetical escape attempt in which appellant boasts about killing a hypothetical guard is too vague, inconclusive, and too remote[.]” (AOB 134.) To support his argument, appellant relies upon People v. Martinez, supra, 31 Cal.4th at pp. 694-695, wherethis Court found that “inconclusive and sneculative testimony of the defendant’s involvementin a shooting was improperly admitted as rebuttal evidenceat penalty phase.” (AOB 135.) Martinez, however, involved an incident about whichthe testifying witness knew virtually nothing. (See People v. Martinez, supra, at p. 695.) Here, in contrast, Deputy Lawrence’s testimony wasnot based on assumption and speculation. Deputy Lawrenceheardfirst-hand appellant and inmate Puckett’s discussion about the best route to escape from the jail and appellant’s insistence that he would kill the jail guard to effectuate his escape. (17 RT 4256-4260.) In any case, appellant’s threat to kill a guard to escape from jail was properly admitted to rebut Drs. Thompson and Mueller’s testimonythat appellant was remorseful. Defense counsel explained that Dr. Thompson would testify about appellant’s mental state at the time of his interview and that “it relates to remorse.” (16 RT 3943, 4199.) Consistent with counsel’s offer, Dr. Thompsontestified to this effect at the penalty phase. (16 RT 3950-3951, 3953-3954, 3968-3969, 3983;°' see also 17 RT 4226-4227 3! Tn closing argument, defense counsel indicated that Dr. Thompson’s observationsthat appellant showed remorse wassubstantiated (continued...) 158 [defense counsel acknowledging that Dr. Thompson’s testimonyhas “a great deal . . . to do with the issue of remorse.”].) Hence, appellant’s threat to kill the guard only twoyears after he killed Carmen and Zuri, was relevant to show that he was not remorseful nor had he changedhis criminal ways. Asthis Court recently observed, the prosecutor was “entitled to rebut with evidence or argument suggesting a more balancedpicture ofhis personality. [Citation.]” (People v. Loker, supra, 44 Cal.4th at p. 709.) The challenged evidence was properly admitted to rebut evidencethat appellant was out-of-control, mentally disturbed, and remorseful. The _ admission of this evidence was not an abuseofdiscretion. Even assuming arguendo the challenged evidence waserroneously admitted, any error was harmless. Appellant argues that the evidence was prejudicial since evidenceofhis threat to kill a jail guard, along with the prosecutors argument, “suggest[ed] to the jury that ‘the death penalty is the only meansofprotecting the public from a defendant whoposesa significant escape risk’ (citations.)” (AOB 136.) The prosecutor here did not argue, however, that appellant would remain a dangerto others if not put to death. Instead, her argument was that life without parole was not sufficient punishmentfor appellant’s crimes, andthat if the jury granted appellant life without parole, he would continue to live in a society, albeit in a prison community, but still have hopes and dream. (17 RT 4351-4353.) In addition, the nature of the evidence against appellant was compelling (See Args. II and [X harmlesserrorargs., supra); thus, even _ (...continued) by Dr. Thompson’s 30 to 40 years of working in forensic psychiatry. (17 RT 4388-4389.) 159 without evidencethat appellant threatened to kill a guard to escapejail, it is not reasonably probablethat a result more favorable to appellant would have been reached. (People v. Watson, supra, 46 Cal.2dat p. 836.) For the reasons discussed above, appellant’s federal constitutional nghts were not violated by the admission of the challenged evidence. XI. THE TRIAL COURT PROPERLY REJECTED APPELLANT’S REQUEST TO INSTRUCT THE JURY THAT IT COULD CONSIDER MERCYIN DECIDING WHETHERTO IMPOSE A LIFE SENTENCE Appellant contendsthatthe trial court erred by denying his request to instru ~* “uc wary iLat + could consider mercy, amongother things, as a factor to justify a life sentence” (AOB 137), and by “preclud{ing] the defense from informing the jury in argument that they could take mercy into account in determining the appropriate penalty.” (AOB 142.) Appellant’s contention is without basis. On February 1, 2000,the trial court discussed proposedinstructions for the penalty phaseoftrial. (16 RT 4160-4161.) The court’s proposed instruction no. 25 reads: A mitigating circumstance does not have to be proved beyond a reasonable doubt; nor do any of the aggravating circumstances, excepting that set forth in [Pen. Code, § 190.3] paragraph (b), above. A juror mayfind that a mitigating circumstance exists if there is any evidence to support it, no matter how weak the evidence is. Again,this is true of aggravating circumstances too, excepting that set forth in paragraph (b). Any mitigating circumstance may outweighanyorall the agpravating factors; and vice versa. A juroris permitted to use sympathy, compassion,or pity for the defendant, or any similar sentiment, in deciding what 160 weight to give to any ofthe factors listed in paragraphs a throughk. 32] A juror mayalso,in this regard take a lenient or tolerant view of the defendant and/or his conduct, if he or she — thatis, the juror -- choosesto do so. (17 RT 4453; 4 CT 1297; 17 RT 4430-4431.) Defense proposed that the following instruction, no. 11, be given: A mitigating circumstance or factor does not constitute a legal justification or excusethat lessens factual guilt for the offenses in question. A mitigating circumstanceor factor is something about Christopher Henriquez, or about the offenses, whichin fairness, sympathy, compassion or mercy, may be considered in extenuating or reducing the defenaa::t’s degrée' of moral culpability or which justifies a sentence of less than death. (4CT 1267.) Relying on this Court’s decision in People v. Benson, supra, 52 Cal.3d 754, the trial court rejected appellant’s proffer. (16 RT 4163- 4167.) The court noted, however, that it would instruct, and that counsel could argue, that the jury can be compassionate, “use pity, and other adjectives. .. . that expresses a sentiment.” (16 RT 4169-4170.) Thetrial court’s ruling was sound. Thetrial court has no duty to instruct the jury that it can consider mercy for a defendant. (People v. 32 Penal Code section 190.3, in pertinentpart, reads: In determining the penalty, the trier of fact shall take into account anyof the following factors if relevant: (k) Any other circumstance which extenuates the gravity of the crime even throughit is not a legal excuse for the crime. 33 In Benson, this Court rejected the defendant’s claim thatthetrial court’s refusal to instruct the jury on mercy in deciding the appropriate penalty violated either statutory law or the Constitution. (People v. Benson, supra, 52 Cal.3d at pp. 808-809.) 161 Clark (1992) 3 Cal.4th 41, 163-164; People v. Nicolaus, supra, 54 Cal.3d at p. 588; People v. Benson, supra, 52 Cal.3d at pp. 808-809; People v. Caro (1988) 46 Cal.3d 1035, 1067,; see also People v. Wader (1993) 5 Cal.4th 610, 663 [no errorin failing to give proffered “mercy” instruction where court instructed jury to consider any sympathetic factors defendant offered for sentence less than death and prosecutor did not argue that jury should not consider sympathy or mercy]; see also California v. Brown (1987) 479 U.S. 538, 541-543 [giving ofstandard anti-sympathy instruction not to be swayed by mere sentiment, conjecture, sympathy, etc. did not violate federal Constittion] ) Directly on point, is People v. Griffin (2004) 33 Cal.4th 536,a capital case, in which this Court held that the trial court’s refusal to instruct on mercy—in addition to the sympathy instruction given—wasnoterror. (ld. at p. 591-592.) In Griffin, the trial court, at the penalty phase, instructed the jury that “[i]Jn determining which penalty is to be imposed on the defendant, you shall considerall of the evidence. . . [and] shall consider, take into account and be guidedby. . . [specified penalty] factors” including, as pertinent here, “[aJny sympathetic or other aspect of the defendant’s character or record that the defendant offers as a basis for a sentence less than death.” (Id. at p. 590.) “Thetrial court also instructedthe jury that ‘[y]ou are free to assign whatever moral or sympathetic value you deem appropriate to each andall of the various factors you are permitted to consider.”” (/bid.) Thetrial court denied defendant’s request to instruct the jury thatit “could exercise mercy based on the evidence, in part because someofthese requested instructions were duplicative of those quoted above.” (J/d. at p. 590-591.) This Court held: Defendant contendsthat the trial court’s denial of his request to instruct the jury that it could exercise mercy based on the evidence waserror. We haverejected substantially similar 162 claimsin the past(see, e.g., People v. Smith (2003) 30 Cal.4th 581, 638 []; People v. Hughes (2002) 27 Cal.4th 287, 403 []; People v. Lewis (2001) 26 Cal.4th 334, 393 []), and wereject the present claim as well. A trial court, of course, may refuse an instruction that is duplicative. (E.g. People v. Sanders (1995) 11 Cal.4th 475, 560 []; People v. Mickey (1991) 54 Cal.3d 612, 697 []; see e.g., People v. Benson, supra, 52 Cal.3d at p. 805, fn. 12.) The question of the appropriate standard of review applicable to a determination of duplicativeness need not be resolved (see People v. Berryman (1993) 6 Cal.4th 1048, 1079 []), because even whenscrutinized independently,the trial court’s decision was sound. The instructions requested were clearly duplicative of the instructions given, which informedthe jury that it had to “considerall of the evidence” and could “consider, take into account and be guided by”any factor, including “[alny sympathetic or other aspect of the defendant’s character or record that the defendant offers as a basis for a sentence less than death,” and that the jury was“free to assign whatever moral or sympathetic value you deem appropriate to each andall of the various factors you are permitted to consider.” (See, e.g. People v. Smith, supra, 30 Cal.4th at p. 638; People v. Hughes, supra, 27 Cal.4th at p. 403; People v. Lewis, supra, 26 Cal.4th atp. 393.) Defendant argues that withoutthe instructions he requested, a reasonable likelihood exists (see People v. Clair, supra, 2 Cal.4th at p. 663) that the jury was misled into believing it was precluded from considering and giving effect to at least some of the evidencethat he presented in mitigation in violation of the cruel and unusual punishmentclause ofthe Eight Amendmentto the United States Constitution and the due process clause of the Fourteenth Amendment. But having received an instruction expressly declaring that it had to “considerall of the evidence” and counsel “consider, take into account and be guided by” any factor including “[a]ny .. . aspect of the defendant’s character or record that the defendantoffers as a basis for a sentence less than death,” the jury adequately 163 was advisedthat it could consider and give effect to all of the evidence presented by defendantin mitigation.“ (People v. Griffin, supra, 33 Cal.4th at pp. 591-592;italics in original.) In People v. McPeters (1992) 2 Cal.4th 1148, the Court rejected defendant’s request for a pure mercyinstruction for the reasonthat the instruction is misleadingin that it fails to make reference to statutory factors and implies an unguidedorarbitrary discretion in the jury to render a greater or lesser penalty at its whim . . the unadorned use of the word ‘mercy’ implies an arbitrary or capricious exercise of powerrather than reasoned discretion based on particular facts and circumstances. Defendant wasnot entitled to a pure ‘mercy’ instruction. (Id. at p. 1195.) This Court noted that unlike the pure mercy instruction, “the given instruction focusing on sympathy and compassionin relation to the circumstances moreprecisely and adequately cover the area.” (/bid.) In this case the trial court instructed the jury: You’re guided by those previous instructions given in the culpability or guilt phase of the trial in this case whichare applicable and pertinent to the determination of penalty. However, you are to completely disregard any instructions given in the guilt trial which prohibit you from considering pity or sympathy for the defendant. In determining penalty, the jury shall take into consideration, among other things, pity and sympathy for defendant, insofar as youfindthat it is warranted by the evidence. * “To the extent defendantclaimsthe jury could exercise mercy apartfrom the evidence, and should have been instructed accordingly, the contention lacks merit. A jury maynot exercise mercyin this fashion, and therefore should not be instructed that it could. (People v. Benson, supra, 52 Cal.3d at pp. 808-809.)” (People v. Griffin, supra, 33 Cal.4th at p. 592, fn. 26; italics in original.) 164 (17 RT 4443-4444.) Thetrial court added: In determining which penalty is to be imposed on defendant, you shall consider, for the purposes for which it was admitted, all of the evidence which has been received during any part ofthetrial of this case. Further, in determining which penalty is to be imposed, you shall consider, take into account, weigh, and be guided by the following factors [a through k], if applicable. (17 RT 4444.) Thetrial court further instructed: Any mitigating circumstance may outweigh any or all of the aggravating factors, and vice versa. A juror is permitted to use sympathy, compassion,or pity for the defendant, or any such similar sentiment, in deciding what weight to give any of the factors listed in Paragraphs A through K. A juror mayalso,in this regard, take a lenient or tolerant view of the defendant and/or his conduct, if he or she — thatis, the juror — choosesto doso. With regard to factors in mitigation or aggravation, each Juror must make his or her own individual assessmentof the weight to be given to such evidence. There is not a requirementthat all jurors unanimously agree on any matter offered in mitigation or aggravation. Each Juror makesan individual evaluation of each fact or circumstance offered in mitigation or aggravation of the penalty. Each juror should weigh and consider such matters, regardless of whether or not they are accepted by the other jurors. (17 RT 4453-4454.) The weighing of aggravating or mitigating circumstances does not mean a mere mechanical counting of the factors on each side of an imaginary scale, or the arbitrary assignment of weights to any of them. 165 Youare free to assign whatever moral or sympathetic value you deem appropriate to each andall of the various factors you are permitted to consider. (17 RT 4454.) Further, the prosecutor, in closing, discussed section 190.3, subdivision (k), and expressly argued: So, essentially factor (k) says 1f you can grasp any sympathy from this defense evidence, you can usethatas sufficiently mitigating evidence and spare hislife. (17 RT 4345.) Onc fine! note More than any other potential factor in mitigation, should you allow your pity for the defendant or any other sympathetic emotion to give him a sentence of LWOP or life without parole. . . . (17 RT 4350.) Sometimes, compassion is deserved and, as membersof a civilized race, we show compassion. Weimpose a system of justice which fairly and systematically justifies private wrongs. Compassion is saying: No, we are not going to leave that defendant out to be lynched or stoned by the family members. Weare goingto bring trial here and have his rights safeguarded. (17 RT 4354.) Interestingly, defense counsel did not expressly argue in his closing argumentfor the jury to consider sympathy, pity, or compassion, but instead argued that appellant “should geta just verdict of life without possibility of parole because he earnedit himself,” by the exemplary life he led when he was younger. (17 RT 4365-4408.) | Given the foregoing authority, the trial court here was not required to instruct the jury that it could consider mercy in deciding whether to impose a life sentence. Appellant’s contrary claim should be rejected. Moreover, even assumingthetrial court erred in refusing the instruction, any error was 166 harmless under any standard, given the trial court’s repeated instruction to the jury that it could consider sympathy, compassion, and pity for appellant; the prosecutor’s argumentto that effect; and defense counsel’s acknowledgmentin the lower court that the term “mercy,” as defined by defense counsel and the court, is synonymous with the definitions of the terms “sympathy” and “pity.” (See 16 RT 4170, 4172, 4345, 4350, 4354, 4443-4444, 4453-4454.) To the extent appellant relies on several cases to support his claim of federal constitutional error, appellant’s reliance is misplaced. (AOB 139.) (See Roberts v. Louisiana (1976) 428 U.S. 325, 331, 334-335 [Court held unconstitutional Louisiana law mandating death penalty for certain crimes regardless of “[a]ny qualification or recommendation which a jury might add to its verdict .. . such as arecommendation of mercy.” Court found law created risk that juror reluctant to impose capital punishment on particular defendant might rely on arbitrary considerations so as notto convict defendant of capital crime]; Gregg v. Georgia (1976) 428 U.S. 153, 203 [Court held capital punishment constitutional under Georgia law where Jury can afford mercy under system that does not create a substantial risk of arbitrariness or caprice]; People v. Jurado, supra, 38 Cal.4th at p. 131 [Court held trial court did not abuse discretion by admitting evidence that murder victim was pregnant, since evidence “to sway the jury to show mercy or to imposethe ultimate sanction” is admissible if not irrelevant or inflammatory]; see also People v. DePriest (2007) 42 Cal.4th 1, 57; People v. Zambrano, supra, 41 Cal.4th at p. 1176; and People v. Demetrulias (2006) 39 Cal.4th 1, 31.) The cases cited by appellant do not address whethera court’s refusal to instruct on mercy is erroneous. Nordo these cases discuss the multiple definitions of the term “mercy.” These cases appear to use the term “mercy” as connoting sympathy, compassion,or pity, and not to accord a 167 defendant “a punishmentother than the onethat heorsheis entitled to under the law.” (16 RT 4168-4169.) Hence, these cases are distinguishable. In People v. Benson, supra, 52 Cal.3d 754,this Court stated: To be sure, “Nothing in any of [the] cases [of the United States Supreme Court] suggests that the decision to afford an individual defendant mercy violates the Constitution.’ But nothing in any ofthose cases suggests that such a decision is in fact authorized by the Constitution. . . . At its root, the Eighth amendmentis simply prohibitory. it bars imposition of punishmentthat is unduly severe. It does not grant power, and hence does not authorize imposition ofpunishmentthat is unduly lenient.” (Id. at p. 808,iiaiivs audcu, uitations omitted, bracketsin original.) Appellant also arguesthat “[i]f the jury is not told thatit has the power to consider mercy,in the same waythatit must considerall statutory mitigation offered by the defendant, it may falsely believe that the sentencing process involves merely a calculated weighing of factors, leaving them no meansof effecting a moral responseto evidence falling outside the enumerated factors.” (AOB 142.) This claim ignoresthat the trial court expressly instructed the jury that it was not to mechanically weigh the factors. (See 17 RT 4454-4455; CALJIC No.8.88.) Appellant further claimsthat “mercy is a concept separate and distinct - from sympathy. (AOB 144.) As noted above, defense counsel specifically arguedthat“I, for the life of me, don’t see how there’s a substantial or any distinction between urging pity, urging compassion for, and urging mercy.” (16 RT 4170.) Defense counsel further stated that the common sense understanding of the word “mercy” was more synonymouswith the concept of incorporating compassion andpity into one’s decision. (16 RT 4170.) For appellant to claim here that the terms have meaningsthat are separate and distinct is disingenuous. 168 XII. THE TRIAL COURT DID NOT MISLEAD THE JURY REGARDING THE NATUREOF THEIR SENTENCING DETERMIANTION Appellant contends that the trial court’s voir dire and comments to counsel, byitself or together with the trial court’s instructions to the jury based on CALJIC No. 8.88, erroneously permitted the jury to impose “a sentence of death if aggravation outweighed mitigation even if the juror[s] d[id] not personally believe death [was] the appropriate sentence underall the circumstances.” (AOB 152-153.) Appellant’s contention is without merit. Thetrial court instructed the jury at the penalty phase with CALJIC - No. 8.88 asfollows: 7 - An aggravating factor is a fact, condition, or event attending the commission of a crime whichincreasesits guilt or enormity, or addsto its injurious consequences which is above and beyondthe elements of the crimeitself. A mitigating circumstanceis a fact, condition or event, which doesnot constitute a justification or excuse for the crime in question, but may be considered as an extenuating circumstance in determining the appropriateness of the death penalty or life without possibility of parole. (17 RT 4447; 4 CT 1281.) The court continued with the sameinstruction: It’s now your duty to determine which ofthese two penalties, death or confinementin the state prison for life without possibility of parole, shall be imposed on the defendant. After having heardall of the evidence, and after having heard and considered the argumentsofthe attorneys, you shall now consider and take into account and weigh and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have beeninstructed. The weighing of aggravating or mitigating circumstances does not mean a mere mechanical counting of the factors on 169 each side of an imaginary scale, or the arbitrary assignmentof weights to any of them. Youare free to assign whatever moral or sympathetic value you deem appropriate to each andall of the various factors you are permitted to consider. In weighing the various circumstances, you determine, under the relevant evidence, which penalty is justified and appropriate by considering the totality of the aggravating circumstances with thetotality of the mitigating circumstances. To return ajudgmentofdeath, each ofyou must be persuadedthat the aggravating circumstances are so substantial in comparison with the mitigating circumstance, that it warrants death insieuuvy tye wunvut possibility ofparole. (17 RT 4454-4455; 4 CT 1300;italics added.) This Court has repeatedly rejected appellant’s claim thatthe italicized language aboveis misleading. By advising that a death verdict should be returnedonly if aggravation is “so substantial in comparison with” mitigation that death is “warranted,”the instruction clearly admonishes the jury to determine whether the balance of aggravation and mitigation makes death the appropriate penalty. (People v. Arias, supra, 13 Cal.4th at p. 171; see also People v. Moon, supra, 37 Cal.4th at p. 43 [CALJIC No.8.88 “[i]s not unconstitutional for failing to inform the jury that death must be the appropriate penalty, not just a warranted penalty”’].) In People v. Davenport (1985) 41 Cal.3d 247, 282, 285, this Court stated: In People v. Brown, supra, 40 Cal.3d 512, this court upheld the validity of 190.3... . [{]].. . The Brown court then determinedthat the statutory reference to “weighing” and the use of the word “shall” “need not beinterpretedto limit impermissibly the scope of the jury’s ultimate discretion. In this context, the word ‘weighing’ is a metaphorfor a process which by nature is incapable of precise description. The word connotes 170 a mental balancing process, but certainly not one whichcalls for a mere mechanical counting of factors on each side of the imaginary ‘scale,’ or the arbitrary assignment of ‘weights’ to any of them. Each juroris free to assign whatever moral or sympathetic value he deems appropriate to each andall of the various factors he is permitted to consider, including factor ‘k’ as we haveinterpreted it. By directing that the jury ‘shall’ impose the death penalty ifit finds that aggravating factors ‘outweigh’ mitigating, the statute should not be understood to require any juror to vote for the death penalty unless upon completion of the ‘weighing’ process, he decides that death is the appropriate penalty underall of the circumstances. Thus, the jury, by weighing the various factors, simply determines under the relevant evidence which penalty is appropriate in the particular case.” (Brown, supra, at p. 542.) This Court in People v. Brown (1985) 40 Cal.3d 512, nevertheless, “noted that instruction in the terms of the statute had the potential to confuse jurors” and thus suggested the adoption of an instruction where “[t]he instruction given informed the jurors that to return a verdict of death they must be persuadedthat the ‘aggravating evidence1s so substantial in comparison with the mitigating circumstancesthat it warrants death instead 399 of life without parole,’” and that weighing is not a mechanical process. (People v. Duncan (1991) 53 Cal.3d 955, 978.) Here, the court instructed the jury with CALJIC No. 8.88, which eliminates the “shall” language that 1s potentially misleading (see People v. Taylor, supra, 52 Cal.3d at p. 845), and adopted the “so substantial in comparison” and “warrant” language as suggested in Brown. Additionally, the court here instructed and repeatedly admonishedthe jurors during voir dire that the weighing was not a mechanical process, but one where each Juroris free to assign whatever moral or sympathetic value he or she deemed appropriate to each factor. In so doing, the jury wastold thatit could not impose a death sentence unlessit believed that death wasthe appropriate sentence underall the relevant circumstances. 17) Appellant also claims that the trial court erred in its “comments during voir dire—and to counselin guiding their closing arguments—thatthe jury must vote for death if they find that aggravation outweighs mitigation, and can only vote for life without parole if mitigation outweighs aggravation.” (AOB 153-154.) To support his claim, appellant points to statements by the trial court, in isolation, so they appear to suggest that the jury weigh factors in aggravation and mitigation simply by applying a mechanical weighing processto determine penalty. (AOB 147-150.) Reading these statements, in context, however, the record shows otherwise. Forinstance, in addition to instructing the daryith CAT JIC No.8.88, the court voir dired potential juror Thomas Jenningsas follows: You remembernow,the culpability phase is one thing. Culpability phase is you have to determine whetherthe defendantis guilty of the charges. And in that connection, you cannotfind him guilty of any of the charges, or any lesser included offense, unless you find beyond a reasonable doubt that he committed that offense. The death penalty phaseofa trial is a different proposition. We don’t get involved in burden of proof concepts such as beyond a reasonable doubt. Whatyou haveto do in the death penalty phase is you have to weigh — and weigh is not a mechanical process. When weuse the word “weigh,” we think of a scale and loading up things on oneside and loading up on anotherside. It’s not really what the law envisions in this regard. What it envisions is a normative judgmental thing where basically it’s a qualitative decision, if you will, as opposed to a quantitative decision. But you weigh all the factors in that sense, qualitatively. All the factors being the aggravated factors and the mitigating factors, specific ones that I'll define for youin greaterdetail. Butafter you do that, if you conclude that the aggravating factors outweigh the mitigating, the law providesit, the death 172 penalty should be imposed [sic]. And if you concludein this qualitative way that the mitigating factors outweigh the ageravating factors, then it provides for the imposition oflife without possibility of parole. (6 RT 1337-1338; see also 6 RT 1492-1493 [court voir diring prospective juror number78]; 6 RT 1506-1507 [same with prospective juror Lea Zywickie]; 7 RT 1609-1611 [same with prospective alternate juror Barry Soares]; 7 RT 1631 [same with prospective alternate juror number 107].) The court repeated: So if we get to the death penalty phase, assuming you would have found that defendantis guilty of premeditated murder, and the special circumstance allegations of multiple murders is true, what I’m trying to getat 1s: Notwithstanding your philosophical views about death being an extreme penalty, are you preparedto listen to the ageravating and mitigating factors, and makethis a decision at somepoint, this qualitative decision that the law calls upon you to make, as to what the appropriate punishment would be? (6 RT 1340.) Moreover, contrary to appellant’s claim, the trial court’s comments to counsel in guiding their penalty phase closing argumentsdid not“dispute the notion that the jury could reach a life verdict if it determined that death wasnot the appropriate penalty even if it found aggravation outweighed mitigation.” (AOB 149.) The court, in its discussion with counsel, stated: That language that the authors of CALJIC havepicked,is subject to a lot of debate. When they’re saying “it’s so substantial,” what they really mean 1s—those wordsare being used in the sense of: It’s substantial enough when compared with the mitigating circumstancesas to warrant the imposition of death. So if you find that the aggravating circumstancesare of such a nature and of such a substance, when compared with the mitigating circumstances, that you feel they warrant death in a normative sense, then impose death. 173 If you feel that the mitigating circumstances, when compared with the aggravating circumstances, are of a type that warrantlife without possibility of parole, then imposelife without possibility of parole. That’s really what that language means.. . .[{] It does not mean that the aggravating circumstances must be so weighty when compared with the mitigating circumstances, in the sense of there must be substantially more in some quantitative sense. For, indeed, that’s what we’re getting away from. We’re getting away from this mechanical concept of suggesting that it’s some sort of a weighing process like you might weigh flour. It’s a normative process. So basicaily wnat you’re saying is you consider the aggravating circumstances, and you consider the mitigating circumstances, and then you make a value judgmentas to whetherthe aggravating circumstances, when compared with the mitigating circumstances, warrant death or vice versa. (16 RT 4174 -4175.) The court continued: The only reason I wentinto [this] at some length 1s I don’t want the defense to argueto the jury that, “Look, ‘so substantial’ meansit’s got to outweigh it. There’s got to be so many aggravating factors as against a mitigating factor, thatit’s substantially greater. That the aggravating factors substantially outweigh.” Because that can be misleading, as well. So you haveto be careful when you arguethat, is what I’m telling you. ... (16 RT 4176 -4177.) Hence, the court was correctly advising counsel not to imply to the jury that the weighing process is a mechanical process, sinceit is a normative one. Nor, as appellant claims, did the prosecutor’s closing argument “exploit[] the court’s erroneous comments,” so that “it cannot be established that the errors described above were harmless beyond a 174 reasonable doubt.” (AOB 155.) As shown above, the court’s comments were not erroneous. In any case, the prosecutor arguedthat “[t]he Judge is going to tell you there are various factors in determining the appropriate penalty,” and discussed relevant subdivisions(a) through (k) as set forth in Penal Code section 190.3. (17 RT 4306, 4308.) But the Judge will tell you it is not an automatic weighing process. You don’t stand up and say for example in a hypothetical situation: gee, okay. We havefactors (d), (e), (g) and (i), but on the prosecution’s side they just have factor(a), therefore four against one, we have to vote for LWOP,life withoutparole. (17 RT 4309.) The prosecutor also discussed the aggravating circumstances (17 RT 4309-4309) and any possible mitigating factors. (17 RT 4329-4345.) The prosecutor acknowledged that under factor (k), the jury could rely on sympathy, appellant’s remorse, pity, or compassion to sentence him tolife without parole. (17 RT 4345, 4349-4351, 4354.) The prosecutor stated “[i]f you feel that the aggravating factors (a) and (b) does[sic] not outweigh the mitigation, in other words,that is that there’s some mitigating factor that you find that prevents you from imposing the death penalty, then you would not feel good about giving the death penalty and you should not do it....” (17 RT 4360.) Likewise, defense counsel argued that “[a]s the Judge hastold you, it’s about a moral and a normativedecision.” (17 RT 4371.) Defense counsel told the jury that the law says “to impose the death penalty when you feel that the aggravating evidenceis so substantial thatit outweighs any mitigating evidence.” (17 RT 4379.) Defense counsel advised the jury to consult the languageof the instructions to apply the law correctly. (17 RT 4379.) Defense counsel argued: You can weigh the aggravation. You can weigh the mitigation. I want to talk to you about the mitigation. I want to challenge you to think about something. 175 If you’re making a normative judgment,that’s a comparison, there’s no absolutes. It has to be comparative. You're being asked to make a judgment about someone whose shoes you’ve never walked in. That’s whatthis processisall about. (17 RT 4385.) Defense counsel discussed, at length, the earlier life appellant led as a Jehovah’s witness and that each good deed, good conduct, or good choice by appellantis a “brick,” and “[e]very one of those bricks that he putthere to help build this building is mitigation. . .”. Defense counsel did not use a mechanical weighing process. but argued that appellant “should get a just verdict of life without possibility of parole because he earned it himself.” (17 RT 4394, 4407.) Subsequently, at the conclusion of the penalty phase, the court instructed the jury, in relevant part, as follows: A mitigating circumstance does not have to be proved beyond a reasonable doubt, nor do any of the aggravating circumstances have to be proved beyonda reasonable doubt, excepting that set forth in [Penal Code section 190.3] Paragraph B. A juror mayfind that a mitigating circumstanceexists if there is any evidence to support it, no-matter how weak the evidence is. And again, this is true of aggravating circumstances, as well, excepting the factors set forth in [Penal Code section 190.3] Paragraph B. Any mitigating circumstance may outweigh anyorall of the aggravating factors, and vice versa. A jury is permitted to use sympathy, compassion,orpity for the defendant, or any such similar sentiment, in deciding what weight to give any of the factors listed in [Penal Code section 190.3] Paragraphs A through K. A jury mayalso,in this regard, take a lenient or tolerant view of the defendant and/or his conduct, if he or she — that1s, the juror - chooses to do so. 176 With regard to factors in mitigation or aggravation, each juror must makehis or her own individual assessmentof the weight to be given to such evidence. There is not a requirementthatall jurors unanimously agree on any matter offered in mitigation or aggravation. Each juror makes an individual evaluation of each fact or circumstance offered in mitigation or aggravation of the penalty. Each juror should weigh and consider such matters, regardless of whether or not they are accepted by the otherjurors. While the existence of factors in aggravation and mitigation depend on the evidence, their proper evaluation requires a normative or a moral judgmentas to which penalty, death orlife without possibility of parole, should be imposed. (17 RT 4453-4454.) The court then instructed the jury in accordance with CALJIC No. 8.88. (17 RT 4454-4455.) The court added: In considering, taking into account, weighing, and being guided by the aggravating and mitigating circumstances, you must not decide the evidence of such circumstance by the simple process of counting the numberof circumstances on eachside. The particular weight of such opposing circumstancesis not to be determinedbytheir relative number, but by their relative convincing force on the ultimate question of punishment. (17 RT 4455-4456.) The trial court did not mislead the jury to vote for the death penalty without deciding that death is the appropriate penalty underall the circumstances. XIII. THIS COURT HAS PREVIOUSLY REJECTED ALL OF APPELLANT’S ATTACKSON THE CONSTITUTIONALITY OF CALIFORNIA’S DEATH PENALTY LAW Appellant contends that many features of California’s capital sentencing scheme, alone or in combination with each other, violate the 177 federal Constitution. (AOB 156-172.) Appellant acknowledges that this Court has consistently rejected the arguments he makes here, however, he makesthese claims in order to preserve them for federal review. A. The Death Penalty Statute Adequately Narrows the Class of Murderers Eligible for the Death Penalty This Court has repeatedly rejected appellant’s contention that California’s death penalty law fails to adequately narrow theclass of murderers for which the death penalty can be imposed. (AOB 157; People v. Kennedy, supra, 36 Cal.4th at p. 640; People v. Crew (2003) 31 Cal.4th 822, 860; People v. Bolden (2002) 29 Cal.4th 515, 566; People v. Barnett (1998) 17 Cal.4th 1044, 1179; People v. Arias, supra, 13 Cal.4th at p. 187; People v. Stanley, supra, 10 Cal.4th at pp. 842-843; People v. Wader, supra, 5 Cal.4th at p. 669.) B. Penal CodeSection 190.3 Properly Requires Juries To Consider The Circumstances Of The Crime When Considering Whether To Impose The Death Penalty;It Did Not Violate Appellant’s Rights Under TheFifth, Sixth, Eighth, Or Fourteenth Amendments This Court has repeatedly rejected appellant’s contention that section 190.3, subdivision (a) (“circumstancesof the crime”) has no limitations and thus permits arbitrary and capricious imposition of the death penalty. (AOB 157-159; People v. Dykes (2009) 46 Cal.4th 731, 813; People v. Harris (2008) 43 Cal.4th 1269, 1322; People v. Vieira (2005) 35 Cal.4th 264, 299; People v. Osband (1996) 13 Cal.4th 622, 703; People v. Medina (1995) 11 Cal.4th 694, 780; People v. Sanders (1995) 11 Cal.4th 475, 563; People v. Turner (1994) 8 Cal.4th 137, 208.) 178 C. The Death Penalty Statute And Corresponding Jury Instructions Properly Set Forth the Appropriate Burden of Proof And Did Not Violate Appellant’s Rights underthe Sixth, Eight, And Fourteenth Amendments 1. Aggravating factors need not be found true beyond a reasonable doubt Contrary to appellant’s view (AOB 160-161), even after Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Ring v. Arizona (2002) 536 U.S. 584 (Ring), Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Cunningham vy. California (2007) 549 U.S. 270 (Cunningham), there is no constitutional requirementthat aggravating factors (other than prior criminality per section 190.3, subd. (b)), be proven beyond a reasonable doubt, that aggravating factors be proven to outweigh mitigating factors beyond a reasonable doubt, or that death is the appropriate penalty beyond a reasonable doubt. (People v. Loker, supra, 44 Cal.4th at p. 755; People v. Cornwell, supra, 37 Cal.4th at pp.103-104; People v. Ward (2005) 36 Cal.4th 186, 221-222; People v. Bolden, supra, 29 Cal4th at p. 566; People v. Ochoa, supra, 26 Cal.4th at pp. 453-454; People v. Barnett, supra, 17 Cal.4th at p. 1178.) 2. The trial court properly abstained from instructing the jury that the state bore the burden of persuasion regarding the aggravated circumstances and on the burdenof proof regarding how to weigh aggravating and mitigating factors Contrary to appellant’s view, the prosecution is not required under the federal Constitution to bear the burden of proof and/or the burden “of persuasionat the penalty phase.” (People v. Sapp (2003) 31 Cal.4th 240, 317; see also People v. Bemore (2000) 22 Cal.4th 809, 859; People v. Hayes (1990) 52 Cal.3d 577, 643; AOB 162.) Nor are CALJIC Nos.8.85 179 and 8.88, as given in the present case, constitutionally vaguefor failing to “provide the jury with the guidance legally required for administration of the death penalty.” (AOB 162.) (See generally People v. Moon, supra, 37 Cal.4th at pp. 41-44 [upholding CALJIC Nos. 8.85, 8.88].) Contrary to appellant’s view (AOB 162-163), there also is no constitutional requirementthat the trial court instruct the jury that there is no burden of proof at the penalty phase. Indeed, because the California death penalty statute does not specify any burdenofproof, except for prior- crimes evidence,thetrial court should not instructat all on the burden of proving mitigating or ageravatine circumstances. (People v. Harris, supra, 43 Cal.4th at p. 1322; People v. Vieira, supra, 35 Cal.4th at p. 303; People v. Holt (1997) 15 Cal.4th 619, 682-684; People v. Carpenter (1997) 15 Cal.4th 312, 417-418.) 3. Appellant had no right to a unanimousjury finding on the fact of prior unadjudicatedactivity, nor on the aggravated circumstances that justified the death penalty Contrary to appellant’s view (AOB 163-165), California’s death penalty law is not unconstitutional because it permits the jury to consider unadjudicated offenses as aggravating evidence (People v. Loker, supra, 44 Cal.4th at p. 756; People v. Harris, supra, 43 Cal.4th at p. 1323; People v. Ward, supra, 36 Cal.4th at pp. 221-222; People v. Bolin, supra, 18 Cal.4th at p. 335; People v. Samayoa (1997) 15 Cal.4th 795, 863), and does not require that the existence of an aggravating factor be found true by a unanimousjury. (People v. Harris, supra, 43 Cal.4th at p. 1323; People v. Blair (2005) 36 Cal.4th 686, 753; People v. Ward, supra, 36 Cal.4th at pp. 221-222; People v. Carpenter (1999) 21 Cal.4th 1016, 1061; People v. Hart, supra, 20 Cal.4th at p. 649; People v. Johnson (1992) 3 Cal.4th 1183, 1245.) This is so even after Apprendi, Ring, Blakely, and Cunningham. (People v. Loker, supra, 44 Cal.4th at p. 755.) 180 4. Thetrial court properly instructed the jury thatit could impose the death penalty if the aggravating circumstances substantially outweighed the mitigating circumstances Contrary to appellant’s view (AOB 165-166), CALJIC No. 8.88 is not unconstitutionally vague in requiring that aggravating circumstances must be “so substantial in comparison with the mitigating circumstancesthat it warrants death instead of life without parole.” (CALJIC No. 8.88; People v. Breaux, supra, | Cal.4th at p. 315-316 & fn. 14; see also People v. Loker, supra, 44 Cal.4th at p. 755; People v. Harris, supra, 43 Cal.4th at pp. 1321-1322.) 5. The trial court properly instructed the jury to determine whether death was the appropriate punishment Contrary to appellant’s view (AOB 166-167), there is no need to inform the jury that it must decide whether death is the appropriate punishment. That conclusionis inherent in the jury’s determination that aggravating factors substantially outweigh mitigating factors. (CALJIC No. 8.88; see also People v. Loker, supra, 44 Cal.4th at p. 755; People v. Cook (2007) 40 Cal.4th 1334, 1367; People v. Arias, supra, 13 Cal.4th at p. 171; People v. Breaux, supra, | Cal.4th at pp. 315-316.) 6. The trial court properly instructed the jury thatit could impose death only if aggravating factors outweighed mitigating factors Contrary to appellant’s view (AOB 167-168), it is not necessary to instructthe jury that it must return a verdict of life without parole if mitigating factors outweigh aggravating factors. That is implicit in the instruction that a death verdict can only be imposedif aggravating factors outweigh mitigating factors. (People v. Cook, supra, 40 Cal.4th at p. 1367; 181 People v. Vieira, supra, 35 Cal.4th at p. 303; People v. Coffman (2004) 34 Cal.4th 1, 124; People v. Duncan, supra, 53 Cal.3d at p. 978.) 7. Thetrial court properly refrained from instructing the jury on a burden of proof and unanimity regarding mitigating circumstances Contrary to appellant’s view (AOB 162, 168-169), there is no burden of persuasion in the penalty phaseof a criminaltrial, andtrial courts have no duty to instruct the jury that mitigating factors need not be provenbythe defendant, nor unanimously agreed uponby the jury. “There is no reasonable likelihoodthe trial court’s instruction requiring a unanimous verdict would confuse the jury segaiuimg, each juror’s duty individually to evaluate and weigh the aggravating and mitigating evidence in arriving at a decision regarding the appropriate penalty. [Citation.]” (People v. kiggs (2008) 44 Cal.4th 248, 328,italics in original; see also People v. Geier (2007) 41 Cal.4th 555, 619; People v. Blair, supra, 36 Cal.4th at p. 753; People v. Ward, supra, 36 Cal.4th at pp. 221-222; People v. Carpenter, supra, 21 Cal.4th at p. 1061; People v. Hart, supra, 20 Cal.4th at p. 649; People v. Johnson, supra, 3 Cal.4th at p. 1245.) 8. The trial court properly refrained from instructing the penalty jury that it should presume that life was the proper sentence Contrary to appellant’s view (AOB 169-170), he wasnotentitled to | an instruction on the presumption that life without parole was the presumptive sentence. (People v. Parson (2008) 44 Cal.4th 332, 371; People v. Abilez (2007) 41 Cal.4th 472, 532; People v. Arias, supra, 13 Cal.4th at p. 190.) D. The Lack Of Written Findings by the Jury Did Not Deprive Appellant of Meaningful Appellate Review Contrary to appellant’s view (AOB 170), California’s death penalty law is not unconstitutional becauseit fails to require that the jury base a 182 death sentence on written findings regarding aggravating factors. (People v. Valencia (2008) 43 Cal.4th 268, 311; People v. Harris, supra, 43 Cal.4th at p. 1322; People v. Vieira, supra, 35 Cal.4th at p. 303; People v. Fauber, supra, 2 Cal.4th at p. 859; People v. Belmontes (1988) 45 Cal.3d 744, 805; People v. Jackson (1980) 28 Cal.3d 264, 316-317; People v. Frierson (1979) 25 Cal.3d 142, 178-180; see also Clemons v. Mississippi (1990) 494 U.S. 738, 750; Harris v. Pulley (9th Cir. 1982) 692 F.2d 1189, 1195-1196, vacated and remandedon other grounds, Pulley v. Harris (1984) 465 U.S. 37.) E. Appellant Had No Right To Inter-Case Proportionality Review To Determine Whether His Planning And Execution of Three Murders Warranted Imposition of the Death Penalty Contrary to appellant’s view (AOB 170-171), California’s death penalty law is not unconstitutional because this Court does not require inter-case proportionality review. (People v. Loker, supra, 44 Cal.4th atpp. 755-756; People v. Harris, supra, 43 Cal.4th at pp. 1322-1323; People v. Vieira, supra, 35 Cal.4th at p. 303; People v. Bolden, supra, 29 Cal.4th atp. 566; People v. Barnett, supra, 17 Cal.4th at p. 1182; People v. Crittenden (1994) 9 Cal.4th 83, 156; People v. Mincey, supra, 2 Cal.4th at p. 476; People v. Hayes, supra, 52 Cal.3d at p. 645.) F. The California Death Penalty Law Does Not Violate the Equal Protection Clause This Court has repeatedly rejected appellant’s contention (AOB 171) that California’s death penalty law deprivescapital defendants of equal protection becauseit does not guarantee the same safeguards onthe jury’s enhancement determinationasis afforded noncapital defendants. Capital defendants are not similarly situated with noncapital defendants, and asthis Court hasheld,the first prerequisite to a successful equal protection claim “is a showingthat the ‘state has adopted classification that affects two or 183 more similarly situated groups in an unequal manner.” (People v. Andrews (1989) 49 Cal.3d 200, 223; see also People v. Boyette, supra, 29 Cal.4th at p. 466, fn. 22; People v. Keenan (1988) 46 Cal.3d 478, 545; People v. Allen, supra, 42 Cal.3d at pp. 1286-1288.) G. California’s Use of the Death Penalty Does Not Violate Any Controlling International Laws Or Agreements Appellant’s final contention is that “California’s use of the death penalty as a regular form of punishmentfalls short of international norms,” and also violates the Eighth and Fourteenth Amendments. (AOB 172.) As this Court stated in People v. Hillhouse, supra, 27 Cal.4th at p. 511, however, had defendant shown prejudicial error under domestic law, we would haveset aside the judgmenton that basis, without recourse to international law. . . . [f] . . . International law does not prohibit a sentence of death rendered in accordance with state and federal constitutional and statutory requirements. (See also People v. Loker, supra, 44 Cal.4th at p. 756; People v. Harris, supra, 43 Cal.4th at p. 1323; People v. Vieira, supra, 35 Cal.4th at p. 305; People v. Jenkins (2000) 22 Cal.4th 900, 1055; People v. Ghent, supra, 43 Cal.3d at pp. 778-779 (maj. opn.); id. at pp. 780-781 (conc. opn. of Mosk, J.).) Asnoted by the foregoing, the various claims raised by appellant have been considered and rejected by this Court. Appellant offers no persuasive reason whythe result should be differentin this case. XIV. APPELLANT CANNOT DEMONSTRATE ANY ENTITLEMENT TO RELIEF FOR “CUMULATIVE” ERROR Appellant seeks reversal of both the guilt and death judgments on “cumulative” error grounds. (AOB 172-174.) As wehave demonstrated, no “serious flaw” appears in either the guilt or penalty phase. (See People v. Millwee (1998) 18 Cal.4th 96, 168.) 184 Moreover, overwhelming evidence established appellant’s guilt on all charges andthe truth of the special circumstances and enhancements. As we have also explained, appellant’s attacks on the penalty judgment are unavailing as well. Accordingly, appellant’s various challenges, alone or in combination, furnish no basis for relief. (See Fuller v. Roe (9th Cir. 1999) 182 F.3d 699, 704 [“where nosingle error is sufficiently prejudicial to warrant reversal, nothing can accumulate to the level of a constitutional violation”].) CONCLUSION Accordingly, for all the foregoing reasons, the People respectfully ask this Court to affirm the judgment. Dated: November 23, 2009 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of California DANER. GILLETTE Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General NANETTE WINAKER Deputy Attorney General ae MARGO J. YU Deputy Attorney General Attorneysfor Respondent SF2000XS0003 20231855.doc 185 CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’SBRIEFuses a 13 point Times New Romanfont and contains 55,935 words. Dated: November 23, 2009 EDMUND G. BROWN JR. Attorney General of California Mh MARGO J. YU Deputy Attorney General Attorneys for Respondent DECLARATION OF SERVICE BY U.S. MAIL Case Name: People v. Henriquez No.: $089311 I declare: I am employedin the Office of the Attorney General, which is the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the businesspractice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplacedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same dayin the ordinary course of business. On November25, 2009, I served the attached RESPONDENT’SBRIEFbyplacing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: Lynne S. Coffin California Appellate Project Attorney at Law 101 Second Street, Suite 600 1030 W. Edgeware Rd. San Francisco, CA 94105-3672 Los Angeles, CA 90026 (two copies) Habeas Corpus Resource Center 303 SecondStreet, Suite 400 South The Honorable Robert J. Kochly San Francisco, CA 94107 District Attorney Contra Costa County District Attorney's Office P.O. Box 670 Martinez, CA 94553 County of Contra Costa Main Courthouse Superior Court of California P.O. Box 911 Martinez, CA 94553 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 November 25, 2009, at San Francisco, California. B. Wong B. A) Sy Declarant Signature SF2000XS$0003 20237010.doc