PEOPLE v. PEOPLES (LOUIS JAMES)

Respondent’s Brief

Cal.December 22, 2011

5 a 1} nc = DeUU‘dalPENANLaTa Cain the Supreme Court of the State ofee orti a + "3 mt ; THE PEOPLE OF THE STATE OF CALIFORNIA, |CAPITAL CASE | Plaintiff and Respondent, Case No. S090602 V. _ LOUIS JAMES PEOPLES, SUPREME COURT se Defendant and Appellant. F | L E D DEC 22 Zvit Alameda County Superior Court Case No. 135280 On Change of Venue From Frederick K. Ohirich Clerk San Joaquin County Superior Court Case Ne: Deputy SP062397A The Honorable MichaelE.Platt, Judge RESPONDENT’S BRIEF KAMALAD. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General GLENN R. PRUDEN Supervising Deputy Attorney General DONNA M. PROVENZANO Deputy Attorney General State Bar No. 215302 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-1303 Fax: (415) 703-1234 Email: Donna.Provenzano@doj.ca.gov Attorneysfor Respondent TABLE OF CONTENTS Page . [troduction ...esssssscsssssesessssssssesseseessstsessseeee Leeeeeeeeeescessueseesserssscsseeseeseseasenaees 1 Statement Of the Case......cceccccsscssssssecescesssseccsseesesseceseeseeceeeesecssecesenseseeees 9 Statement Of Facts 0... ceceesessesscsecsecesesescessesecsecsessecessereceecsesaeeeeeseeseensees 11 I, Guilt phase: prosecution Case ........ccecceecceeeeeseeseesseeeseesseeee 11 A. Automobile burglary: June 21, 1997oe. 11 B. Cal Spray shooting: September 16.00...eee 12 C. Bank of the West robbery: October 24.0.0... 16 D. Eight Mile Road murder: October 29.0... 17 E. Mayfair Liquors murder: November4 .............008 22 F, Village Oaks Market murders: November11.......... 24 G. Police investigation and appellant’s arrest on November 12 oo... seeescesseseeseseeetecteeseeeesenesseeneeesseeens 28 H. Appellant’s interview and recovery of the MUPCer WEAPON 000... eeececeeseeseceteeeeeeeeeeseeeeeeseeseensenses 32 Il. Guilt phase: defense Case .........cceeseeeccessesseessestsesseeaseateees 35 A. Lay testimony .........ccseeesseesseeceessesseceeetsesessessenseeseees 35 B. Expert testimony ...........::cccscsssecsssesseeeeseesseesseeeseeenseess 43 II. Guilt phase: prosecution rebuttal 0.0.0...ceecceeseseeeeseeees 52 IV. Defense surrebuttal 0.0...cececceceeeeseeeseesecesesesseenseseesecseens 59 V. Penalty phaseretrial: aggravating factors............cccceeeeees 60 A. Circumstances of the CrIMES «0.0... eceeeesseeeeteeseeeeeees 60 1. Auto burglary and theft of Michael KINGS GUN 0... eee eeeceeseeseeeeseecesececeessseeesesaeees 60 2. Cal Spray shooting... sevteeeeseeseeeseeseessaeeseeateeaees 60 3, Fight Mile Road murder..........ccceseseeeeeteees 60 4. Bank of the West robbery...........ccecseseseeees 60 5. . Mayfair Liquors murder...........cceeeeeseeeeeee 60 6. Village Oaks murders 20.0... cee cceesecseesseeseeees 60 VI. VIL. Argument.. I, I. I. TABLE OF CONTENTS (continued) Page 7. Police investigation and appellant! S © ALTOSoes eeeeteeeeeteceeeeeeenenetenstenenesersssenseeeeensenans 60 B. Victim impact CVIdeENCE 00... ee eesseeeeeereeteeteeteeeeens61 1. Impact of James Loper’s Murder.................. 61 2. Impact of Stephen Chacko’s Murder............. 63 3. Impact of Besun Yu’s Murder..........:cccceee 64 C. Appellant’s prior CONVICTIONS ..........:ccsseseteeeeeetees 65 Penalty phaseretrial: mitigating factors...........ccceeeeerees 66 A. Appellant’s family 0.0... eseeseeseeeeeteeeeeeeenreeteeey 66 B. Friends, neighbors, co-workers, and others.............. 75 C. Psychosocial expert testiMONy...........scsseesesesereeres 86 D. Correctional officers’ testiMONy ...........ccceeeeeeeeserees 93 Penalty phaseretrial: prosecution rebuttal...............00waveee 9S essessuseveucsceeeasessecsasesecasceccseeneceneecsueeaeeseeeesneseseseesetaeeesseesseeengs 99 Appellant’s pretrial motion to disqualify Judge Platt was properly denied .......... ce eseseseeeesseessceeessneesessereeseeneenenees 99 A. Procedural HistOry..........sccescccseecessecersessseesseeeeseesseenes 99 B. Appellant has failed to show aprobability of ACTUAL DIAS «00.0... eeeeeeeceeceeeseeeteeceeererseeeseneeeseeeseeeees 105 Appellant’s claim that the trial court erroneously denied his recusal and mistrial motions is barred, but, in any event, the claim is without merit as the motions were properly demied .......eee ceessssceseceeeeraseneeeseeeseseeeseenes 109 A. Procedural WistOry........e ee eeesessesceceeeeeesseeneeneenneens 110 B. Mootness and forfeiture...sseeeceeseseeeeeees 115 C. The recusal motion and motion for mistrial were properly denied occecesesesseeeeteneeseeneeneees 116 Judge Platt ensured that appellant’s trials were fair.......... 119 A. General legal principles ..........eeeeceseeseseeeteeneeneees 120 ul IV. TABLE OF CONTENTS (continued) Page B. Judge Platt’s conduct did not communicate to the jury that he disbelieved the defense evidenceor that he wasallied with the PTOSCCULION.........eeceesseesseeeeesecessesseueeecesecseesseesseeeeees 121 Thetrial court did not coerce a death verdict.........0...00. 135 A. Procedural background ...........ccccescecssesscseeeseeevenes 136 B. General legal principles ...........ccccecessessesceseereeeseees 144 C. Thetrial court conducted the requisite inquiry in determining whether there was a reasonable probability the jury could render a verdict............. 145 D. Taken alone or together, the trial court’s instructions and suggestion to the jury did not amount to an improper “Allen charge”..............00 148 E, The trial court’s decisions on the jury’s use of the prosecution and defense charts constituted a proper exercise ofits discretion...........cceesceeeeeeeees 152 F, Thetrial court properly denied appellant’s motion for a mistrial because there was no merit to appellant’s contention that the court coerced a death verdict...seeceeeeseseeeeeseaceseesneneeneeseeess 154 The prosecutor’s actions did not, singly or in combination, constitute prejudicial misconduct............0... 155 A. General legal principles ...........ccceccseseeteeseeeee eeeess 156 B. There was no prejudicial misconductrelated to the prosecutor’s verbal or non-verbal COMMUNICATION 00... eceeececeseesceceseeeeeseseesesseeseseeesens 156 The prosecutor did not engage in deceptive practices or intentionally ignore thetrial court’s TULINGS oo... eeecesssceescesseescescecsseenseeceessteseesecsssesseeeaes 161 The prosecutor did not commit prejudicial misconduct in his opening statementor closing ATQUMENUS.........eecessscceesesessssescessseceeceecessecenssesessseeeses 164 lil VI. VIL. VIII. TABLE OF CONTENTS (continued) Page E. Noprejudice resulted from the prosecutor’s conversations with victims’ family members which were overheard by others ...........ccecceeeeeeeeees 169 F, Appellant has not established prejudice.............. 171 There wasnotrial court error, or prosecutorial misconduct, with regard to the issue of remorse............... 173 A. Procedural history ..........::csccccscesseeeeeseseseseeeserensees 174 1. Testimony of clergy members. .............-..00 174 2. Letters ......ccccccsccceseesceeeseceereeeeseeeeeeeaseneeseneees 176 3. Relevant testimony ......2...eeecceceesseeseeeeeeneens 176 B. — General legal principles .........cescsessesseesectseseceeeteees 177 C. Thetrial court acted within its discretion when it found appellant’s hearsay expressions of remorse lacking in trustworthiness..........::ceeeee 178 D. The prosecutor did not commit prejudicial misconduct when he arguedtheissue of appellant’s reMOLse ....... es eeceseeseeseeeeeseeeeeeeeeeeeneeney 180 E. Anyerror or misconduct wasnot prejudicial......... 181 Thetrial court properly admitted appellant’s taped StAtCMENL.........eccceseececceececsceeesseeeeeessecssteesesseesseesseeeenesserees 182 A. Procedural history ..........:cceeeeseestesssecsseseesseeeeeeseeeeees 183 B. General legal principles................. aseeseesnaeeeeeeneeerss 185 C. Thetotality of the circumstances demonstrate that appellant’s statement was voluntary................ 186 D. If the trial court erred in admitting appellant’s statement, it was harmless..............:eesseessssssceeseeeees 190 Thetrial court’s ruling admitting some,butnotall, lay testimony pertaining to appellant’s methamphetamine USE WAS PIOPED .....eeeeeeseessecesesseeeceessesaneaseeseeneseeeetaeenareneees 191 A. Procedural HistOry ..........:ccsseeceesecesseeseeeseeeseeteeeeeenees 192 1V IX. Xi. O E. TABLE OF CONTENTS (continued) Page Appellant forfeited his claim by failing to object to the court’s TUlING.........eeeeceeseceeseeeeeeeeneeeesteeeees 195 General legal principles.............:cceeeseeeseeceseeteeeeeeee 195 Thetrial court’s ruling admitting some, but not all, lay testimony regarding appellant’s use of methamphetamine was a properexercise of GISCTCtION.........cccecceccceessccsseeeceneeeeseeceseeeeeseeeeeeeoseae 196 If exclusion of the evidence waserror, it was Harmless .........ceeecessesssscssssesssssessseesensneeeeeeceeeeeeeeseeees 197 Thetrial court did not err in limiting defense counsel’s cross-examination of Doctor Mayberg during the penalty phaseretrial or in its admonition to the jury about a defense discovery violation.............:cssceesceeseeeneees 199 A. Procedural History... ceeeeseeseesseesereeeeeseeseeseeeeeens 199 B. General legal principles............::cceseeeceeeeecereeteeeeeeee 203 C. Thetrial court’s limitation of cross-examination D. of Doctor Mayberg wasproperas wasits admonition regarding the discovery violation......... 203 If the trial court erred, it was harmless................... 208 Thetrial court properly exercisedits discretion in excluding a portion of the defense forensic expert’s TESTIMONY .......ceeeseeseesceesssecceecscesseceeeneeatersneeessesseesneneesenaners 209 A. Procedural History...ee eeeeecessseeseeseeeseeeeseseseees 210 B. General legal principles...00...... 2. eeesseeseeeseeeereeeee 212 C. Thetrial court properly excluded turvey’s mental-state profiling testimony...eee 213 D. If the trial court erred, it was harmless................... 215 Thetrial court’s penalty phaseretrial ruling regarding sexual abuse mitigation evidence was a proper exercise Of GISCTETION ........eeeeeeeseeeeceeseeeceeeetceceeeenseeesseeseseaeeesaersaersaes 216 A. Procedural history ......c.ccccesccceeeeeees eseneeeseaeesesenens 217 AML. XIU. XIV. TABLE OF CONTENTS (continued) Page B. General legal principles.............cseseeeeeeseeeeereeeeees 219 C. Thetrial court’s ruling admitting some, but not all, corroborating evidence of sexual abuse was a proper exercise Of discretiOn...........ceeeeeeseeeeeeees 219 D. Appellant has not demonstrated prejudice.............. 222 Thetrial court properly admitted autopsy photosat the guilt phase and penalty phaseretrial .......... ee eee eeeeseeeteees 224 A. Procedural history ...........:cccccessseccesceeeeeereeeceeneeennees 224 B. General legal principles...........::.:cseceesceneceneereserees 226 C, The autopsy photos wererelevant and clearly more probative than prejudicial...eeeeee 227 D. The prosecutor’s argument was proper..............004 229 E. Any error was harmless............c:ccccsssessecesseeeeeeeseees 230 Thetrial court properly permitted the prosecutorto question defense witnesses about their knowledge of the facts of appellant’s Crimes ............ceeeeeceseeseesseeeereetenees 230 A. Procedural history ..........:ccc:cccescessseceseseeereeeenseeeeees... 230 B. General legal principles..............:::eeeeeeeedeeteeeseeees 233 C. Thetrial court properly permitted the prosecutor to cross-examine defense witnesses about the facts of appellant’s CriIMes...........:eseeeseeseeeseeteeeeees 233 D. Ifthe cross-examination was improper,it was nonetheless harmless ..............:0:cccccceeeeeesececcceeeeeeeess 237 Thetrial court’s admission of evidence in aggravation WAS PLOPeL.......eesccecescersseceeesscecesseceeeseneecesseeossseeseesessseeesseas 238 A. Procedural history ...........ccssscccssssseesereeseeeeeereecneeerees 238 B. General legal principles.............c:ceeceeseeeeeeseeeeeeeees 240 C. Thetrial court’s evidentiary rulings were proper... 241 Vi XV. XVI. TABLE OF CONTENTS (continued) Page D. The prosecutor’s argumentto the jury concerning the victim impact evidence was PTOPEToccee eeeeeescceeeeeeceesecesscecceereeessueessreesaeeereeneees 244 Thetrial court’s rulings regarding evidence in mitigation, motions to continue, and evidence in AVLTAVALION WETE PIOPET........:cceecesceecececceeesecenetseeeneesseetsees 244 A. Procedural history .......::ccccesescesceeececeeeeeereeseeesneesees 245 1. Mitigation evidence 0.0.0... eeeeeeeeeeeeeeeeeees 245 2. Defense motions to continue guilt phase and penalty retrial oo... ce eeeeeeceeneeeseereeeees 246 3. Evidence in aggravation..........::csceceeseeeees 249 B. ArQUMENoe ceececeseesesseseesseessesstsscsseesesssessscaveeneeseen 250 1. The court’s rulings on mitigation EVIGENCE WETE PLOPET ........ceeeeceeeeeeeetteessteees 250 2. The trial court did not abuseits discretion in denying appellant’s motions to continue the trials 0.0.0... eee eeeeeereeeeeenees 252 3. The court’s admission of certain guilt phase evidence comported with the relevant statutory ProViSiONS............cee 254 Thetrial court properly instructed the penalty phase TOtrial JULY ooo... ce cccscessseceessecessseeeeeceseseeseeeeseesesaeessnaneeses 257 A. Procedural istry ...........ceseesceesseescecceeeeeeeeseeeseeeeass 257 B. General legal principles.0....... ec ceeeeseeeeeeeeeeeeeeeeeees 258 C. Thetrial court’s rejection of the instructionsat ISSUC WAS PLOPEL.........ccccsccesscsscceeseesseceeseeseeeseeeseaeenes 258 1: Proposed instructions regarding normative function OfJUTY......... ce eeeeeeeees 258 2. Proposedinstructions limiting use of factors 1N AGLTAVATION ...... eee eeeeeeseeeseeeeeeeees 259 vil TABLE OF CONTENTS (continued) Page 3. Proposed instructions on mitigation CVIGENCE 2... eeeceeseceeececeeecerseceseeseeesneseeeneeesetees 260 4. Proposedinstructions on weighing of aggravating and mitigating factors.............. 262 5. Proposed Ochoa instruction ...........eee 265 D. Any error was harmless...........eecesssesseeseesreeeseeees 266 XVII. Thetrial court’s denial of appellant’s motion for a new trial, based on juror misconduct, was a proper exercise of discretion as was its decision not to remove juror TUDE7 0... eceeseceeeeececsececescereencecenseeeoesseesaesccenesseaseeesgnees 267 A. Procedural history.........cceceeeeeeeee desetesseeeeseneeees 267 B. General legal principles .........eeeeseeeseeeeeereeees 268 C. There was no juror MiSCONUCT 00...eeeeetee ees 269 1, Extraneous material ......0... cece eeeeeeeeeeeees 269 2. JUrOr NUMDET7.0.0... eeeeceeeeeeeeeeeeereseeteeeeeaeees 272 D. Appellant has failed to demonstrate a substantial likelihood ofjuror bias............eee 274 XVIII. Appellant’s penalty retrial under Penal Code section 190.4, subdivision (b) did notviolate his state and federal constitutional rights ...........::ecseesereereneneeeneneeeees 275 A. Procedural histOry ..........::cccscceeceesecereceseseseeeseesenneees 276 B. There was no double jeopardy bar to appellant’s penalty retrial because of pervasive, prejudicial prosecutorial MiscONdUCt.........eeeeeeseeeeseeteeees 277 C. Appellant’s penalty retrial violated neither the Eighth Amendment’s prohibition against cruel and unusual punishmentnor the Fourteenth Amendment’s rights to due process and fundamental fairness of his trial nor his Sixth Amendmentright to a fair trial oo...eeeeee eeeeees 279 vill TABLE OF CONTENTS (continued) Appellant’s penalty retrial does not constitute cruel and unusual punishment because California’s statute permitting sucha retrial is the minority view ofjurisdictions having a death penalty and because subsequent inquiry showedthat the deadlocked jury voted eight- four in favor Of LWODP........ccecceeeseeeeeeeeeceeeteeeeeeeesees XIX. Appellant’s trial was not fundamentally unfair due to the cumulative effect of the errors he alleges ..............0.. 284 XX. California’s death penalty statute, as interpreted by this court and as applied at appellant’s trial, violates neither the United States Constitution nor internationallaw.......... 285 A. B. Delay in the process and execution of sentence... Penal Code section 190.2 is not impermissibly DrOAd wooo eece cece ceececeeeccccensscncsessecsssssteesessrsssssesseseeee Penal Codesection 190.3, factor (a) is not impermissibly overbroad ..........:ccceeeceseeeeteeeeeeseees CALJIC No.8.88 is not impermissibly vague ANd AMDIQUOUS..........ccssscsseceseseessseesseeeeescsteeeseseeees The use ofrestrictive adjectives in mitigating factors did not impermissibly bar consideration of mitigation in appellant’s case, nor did the failure to instruct that mitigating factors are only potential preclude fair, reliable and evenhanded application ........ ee eeeseeeeseeeeeeeteeeeeees There are no constitutional requirementsthat the jury unanimously find aggravating factors, make written findings regarding aggravating factors or find aggravating factors beyond a reasonable doubt ...........cceccececccccccceccesscceccecceeeeeaee California’s death penalty does not violate either the Eighth and Fourteenth Amendments or international laW .0.0.......ececcccecsseeeecccceeeececceeceeeess 1X Page .. 283 285 285 286 .. 286 .. 287 .. 288 .. 289 TABLE OF CONTENTS (continued) Page COnclUSION ........0...scceccececcsececcccccuceccccccceececeeccecssssasccseesnceereeseseceesuesseesceees 291 TABLE OF AUTHORITIES Page CASES Allen v. United States (1896) 164 U.S. 492.ceceeceeseeeteeceneessseeseeeeceseeeseeseseanersaees 148, 149, 151 Arizona v. Fulminante (1991) 499 U.S. 279oeeceeceeecceseeecesseceneccesecsseaeesneeeaeearseesseeeeseneraeess 105, 190 Boydev. California (1990) 494 U.S. 370... eeeeceecescceccseceseeceseenecaeeseseeeeaseeeseeeeceaeseeseaneneaaeneaees 168 Brady v. Maryland (1963) 373 U.S. 83 ...ecccseeccecccesceceeeeecseceaecscenssseescesseeeesseeseceseseeseatecteesaeeaaees 283 Caperton v. A. T. Massey Coal Co. (2009) 556U.S. 129 S. Ct. 2252.eeceeccecceseesecssessennecsscecsceeceneesscnceceasesessesuersaeeaeeseteeeeeeas... 106 Doody v. Schiro (9th Cir. 2010) 596 F.3d 620 oo.cccccesessseeteesceeseeeseeseeceeeceeeeeeteseeeeeatees 189 Hunt v. Superior Court (1999) 21 Cal4th 984 oo cccccceccescessceseceececessseeeacseesceeseceeeeeteeaseaeeeees 252. In re Bolden (2009) 46 Cal.4th 216 occccccssccceseceereeecesssecseeenseessssseeeeeseseestseseeseeneess 273 In re Lucas (2004) 33 Cal.4th 682 0... eeceeescecccesssesscesceecesesnesssecsesecacceaeceeeseetanses 221, 272 In re Ross (1995) 10 Cal.4th 184 oooccccccccsscessceceescsseesesesecseeeaeessaeesesseeeseeereesees 256 In re Walker (1974) 10 Cal.3d 764 oo. ccceseeeceseceseeseenetsenseesceeneaeeacetseeeareceeeesteaeeenees 186 J. C. Penny Casualty Ins. Co. v. M. K. (1991) 52 Cal.3d 1009 occccceccssssesseesceeeeeseeeeseeeeeseeeeceseseasenetensetaresens 280 X1 Oregon v. Kennedy (1982) 456 U.S. 667 ...csccscsesscseessesesesesceneesaeetenescseasssensssesasssesenenenenes 277, 278 Payne v. Tennessee (1991) 501 U.S. 808oescseeneesenseeneeeeseeeneneeeatsesestereneenenssenesennes 240, 255 Pennsylvania v. Ritchie (1987) 480 U.S. 39.ececesesessensteeenenenenesesieseceneasasetseeessasseneaesenesenenens 203 People v. Alcala (1992) 4 Cal.4th 742 o.ccccsssseseesesenecesseesseetensececaesssseecessesenenenenssasenensnens 195 People v. Alfaro (2007) 41 Cal4th 1277 ...ccecesccssscssesesesecesseesetenereeenenesesessenscneassensneness233, 237 People v. Allen (1986) 42 Cal.3d 1222 oc ecececccsessssereenereeeenseseeenenensseensnssssessseeresenesseneenees 289 People v. Alvarez (1996) 14 Cal.4th 155 oe ccececssseseseecsetseserecseeessseneescsseseneescseesseresenaeaspassim People v. Anderson (1990) 52 Cal.3d 453 .o.ccesssesescseceessseseseteseeeeenenenesesesessnserseneneneneneeanens 230, 284 People v. Anderson (2001) 25 Cal.4th 543 oo.essesesesecenssesenesenseeeeneesecansseseerssensnssenens 241, 285 People v. Arias (1996) 13 Cal4th 92 oo. eeecccscseeeseeseeeeeeeeeeteenenecsssesseenesenseasseneseneespassim People v. Ashmus (1991) 54 Cal.3d 932 v.eeeccsssscsseseeseneeserssessseeeereneessesnsssasessensanenenseneneneates 243 People v. Avila (2006) 38 Cal.4th 491 oo. ceesseeesesessseneeseneesseeeeessersneesescseesesseessnanenees1.269 People v. Bacigalupa (1993) 6 Cal.4th 457cccceesseseseseseeseneeseseecenesneeneressssenesensensseeneneneas 286 People v. Barnett (1998) 17 Cal.4th 1044 ooocscs cescscesseseseeeseeseeneeseteerteseeseeseeseens 258, 285 People v. Barraza | (1979) 23 Cal.3d 675 .o.cececccsssscssseseseseseessnesensseeeenessnersenseeseessenssensneneates ... 149 People v. Batts (2003) 30 Cal.4th 660 oo... cessccsseccesersseeeeseeeenererseeenensnssesseesnseasseesiens 277, 278 Xil People v. Beames (2007) 40 Cal4th 907oecee seesscsseseerseteeeeeeeeeesecneessenseeeses 253, 286, 290 People v. Beeler (1995) 9 Cal.4th 953 oooceeseseeeeeeessecseeeeversaseeeseeesesesenseessenecsesessusenteas 253 People v. Bell (1989) 49 Cal.3d 502oceeeeeceeseeeeeceeceeeserseeeeceensessseaseesesseeesents 165, 205 People v. Bell (2004) 118 CalApp.4th 249 oooeceerscnecnesneseeeneeeeeeeeeensscteteesenenees 208 People v. Bell (2007) 40 Cal4th 582 ooo ciceescsecsseeeeetseeetccetenecssesssesesssecssserseeees 145, 204 People v. Bennett (2009) 45 Cal4th 577 .o..ccccccccsccsccssscesseeescessecssceseeeesecsseeeateneesseeseeeneaespassim People v. Benson (1990) 52 Cal.3d 754 oieeceseecesececeeeesecteteceaceseseeeseeeceneeeseaeaseatseeees 226, 265 People v. Berryman (1993) 6 Cal.4th 1048 ooeeseeeneeseescnecsesseeseesessesesseeserssteeaesesseraes 165 People v. Blacksher (2011) 52 Cal4th 769 ooo. ececccccceecscessesecessseceeseceeeesesseeceeaceneteeeeeeaes 129, 180 People v. Blakeley (2000) 23 Cal4th 82oeceeseeesenessceccsseseseeesseesesensrseesetessseeceseessasseeaes 280 People v. Bolton (1979) 23 Cal.3d 208 ....cececccessesessscsecesseeseeecesscaeeseeesecseceassaeeaeeasecssseteateas 171 People v. Booker (2011) 51 Cal4th 141 ooeceesesseeecseseeeseerseeesenereeeessecarsesasesseseseesees 284 People v. Box (2000) 23 Cal4th 1153 ...ecccccccescessesseeseceseseceeceececseeseeeeeeeeeaeeeseensaeeeeeneees 228 People v. Boyette (2002) 29 Cal.4th 381 ooo. eecccccssesscessseseesseeeeeeseeeceeseserecaesseeeseeseaseatspassim People v. Bramit (2009) 46 Cal4th 1221 ooo ccecccescesecsccesceeenseseesseeeesaeeaeceeaeeneensseeseeseas 288 People v. Brasure (2008) 42 Cal4th 1037 oo. cecceccccesscssecssecsecseenseereseeesesceesesneaeceseenseeeeesans 288 xill People v. Brown (1988) 46 Cal.3d 432 ooeecseeseecceeeeeeeeeeesseeesensseeegecsssesseeeesseeeesenees 154, 163 People v. Brown (1993) 6 Cal.4th 322oesecccneeeeeseeecsecseeseeeseseessssesseeeseeeseseees 105, 108 People v. Brown (2003) 31 Cal.4th 518veeesececeseeesseenerereaees povseccesenenecraseuenesossens 168, 205 People v. Brown (2004) 33 Cal4th 382 occceeessceeecsseneceeseeesssescssesseeenses 240, 285, 289, 290 People v. Cahill (1993) 5 Cal.4th 478 ooo. eccceecseesesceceeceeeessnecseeseseseescseseesssessessssseseseensseseees 190 People v. Cain (1995) 10 Cal.4th 1 ooeceercscseeetseteesessecsesesseeseneeseeseeseseneenees 228, 286 People v. Carpenter (1999) 21 Cal.4th 1016oeeceeeesereessscsecsseseesssesseseseeseeeceeesesseeseeesees 213 People v. Carrington (2009) 47 Cal.4th 145 occccecsesesesscessecsesesssessesenassesseensnesessenseeenens 286 People v. Carter (1968) 68 Cal.2d 810 woeeeeeeesccteceeseesecsessesassessseessensssesesseesnscseeneeseeneees 149 People v. Castaneda (2011) 51 Cal.4th 1292oessevesnesustisecesssssssssssaviseesesecesssessssasneeeses 263 People v. Chatman (2006) 38 Cal4th 344 oocceseesessecsessseseesssteneeseeeeseeeseesseees 120, 287 People v. Clair (1992) 2 Cal.4th 629 oon. eeecessesssessneesseessessneesnessnessneeesnessnescnecnernaeen 227 People v. Clark (1992) 3 Cal.4th 41 oeeeeeeeseeceessecseeesssessescasseseseeeeseesens 120, 121, 128 People v. Clark (1993) 5 Cal.4th 950occcseeee reece ceessasseeacseeneessseeeaeeneeseesessesaeeeenees 206 People v. Coffman and Marlow (2004) 34 Cal.4th1ccccesncecssceesneessesseseeeeecsenessecsesseesssseteeeseeseesens 256 People v. Coleman (1985) 38 Cal.3d 69 oeesesessescsessesenscecsscsssesssssssssssssceesesesenseseseessseanee 205 XIV People v. Collins (2010) 49 Cal4th 175 occccccsccseeseeeesesesseeeseeesecsecseseesseeeeseeeeseeeessass 269 People v. Cornwell (2005) 37 Cal4th 50 ooo ccesscsseseeeesecsseseeeceeecseeeesseeeeeaetaeenersesesaees 203, 212 People v. Cowan (2010) 50 Cal4th 401 oooeccssecseceeseseeeeeeesaeseeseeeseeeenes 105, 106, 107 People v. Cox (1991) 53 Cal.3d 618 oo.eesscsseesceeseseessesessecesseseesesseaectessenseessee 122, 270 People v. Crittenden (1994) 9 Cal.4th 83 oceansdesessescessesesaeeseeaseaecsseaesasessessesenecaseeeeaeees 180 People v. Cummings (1993) 4 Cal.4th 1233 oooeeeeecscescsenseseeneseeeceesseceeesseaserecesesesaceeees 163, 242 People v. Cunningham (2002) 25 Cal4th 926 oo.ceccecesseeseeneceeseseeeeseeeseeeesesereeeseeees 197, 198, 215 People v. Davenport (1995) 11 Cal.4th L171 oeeccecscesseessecesecssceeeesesseecsecsessseeeeseseees 236, 280 People v. Davis (2009) 46 Cal.4th 539 oo.eeseeceesesseceesenseessresenereneneeeenes 186, 215, 287 People v. Delgado (1993) 5 Cal.4th 312ecessesseeesseesecsescesecsscesssnesceseeseeaeeseesseceseseecsseaten 128 People v. Demetrulias (2006) 39 Cal4th doocececsseseeceeceeseeeeseesesecsesetsesetseeeesseseseaeeseseeaeees 286 People v. Dennis (1998) 17 Cal4th 468 ooo.ececccssessscssessesscseseeceseesecseeeeeesecseeeeeas 167, 223 People v. DePriest (2007) 42 Cal4th 1 occccescessscesseseessecseseeseceecseseescesessesseseessesesseeeseasseees 255 People v. DeSantis | (1992) 2 Cal.4th 1198 ooeescsesssssseceeeeseeseseeeesssseseseeeeeeessssnseseeseseeaes 230 People v. Doolin (2009) 45 Cal4th 390 ooo eccssessesssesseseseessessecsesseseseeeseeesssseseeeseeaespassim People v. Dykes (2009) 46 Cal.4th 731 oo... cccccccccseccesesesccrseceessscecsssecesasesetsssssseespassim XV People v. Earp (1999) 20 Cal.4th 826oesseeaesesecsesesesseesasseseaseesenessens 159, 165, 223 People v. Edwards (1991) 54 Cal.3d 787 oo. ceeceeseececsccseeseesseceaeeceesessseeseesasensereeseeseeeseeeaeeepassim People v. Elliot (2005) 37 Cal.4th 453 oo.ccceccccsssecssssestecseeeesseeeseesesseeseseeneesecseceecesseneeeenees 289 People v. Ervin (2000) 22 Cal4th 48 oo... cccccccsccsscsscsesseseacsseeeesecsecaerseessssesseseesarsesesseneas 175 People v. Espinoza (1992) 3 Cal.4th 806oeee eceesesseeeeereeseeeeeteeceseeseseeseeseesees 113, 114, 260 People v. Farnam , (2002) 28 Cal4th 107 vos. eecceecccseeceeeceseeeeeesecseeesecsecseeseesscssesssesesssesseseesses 260 People v. Freeman (2010) 47 Cal4th 993 ooeececesceeceeeeeeesesenecesecesesesssseessasseesssaseeeeneens 106 People v. Frye - (1998) 18 Cal4th 894 oooecceeecesseesseeteseeeeeeeeeeeaesseseseneseeneees 195, 214 People v. Fudge (1994) 7 Cal.4th 1075 oooeecccseecseeeeeseceeseceesscecereeesesesseeseeeeseteeesespassim People v. Gainer (1977) 19 Cal.3d 835 weeesecsecsereceeeeesscssecesesssseseesessresesessssessesseneseeees 149 People v. Gamache (2010) 48 Cal.4th 347 oo. ccccccccscescesceeeeeeseeseeeeeeseenesessssceacesseeseenees 116, 287 People v. Garcia (2011) 52 Cal.4th 706 oo... cecsscesecseeeeresecereeeeseeceesenesees 167, 241, 242, 284 People v. Gay (2008) 42 Cal4th 1195 oo.cceeccsecsecseseeeesseeeecsseeaeeseeeeseesssseesssseseseneeses 219 People v. Geier (2007) 41 Cal.4th 555oeceeceeseseeeeeretereeeeeseesseessesseeeees 121, 128, 235 People v. Gionis (1995) 9 Cal.4th 1196eeeceesseseecessesesesesesecseasseseessesesseesesseceeseeeeaes 156 People v. Gonzales and Soliz (2011) 52 Cal.4th 254oocceecnesseeceeeeestersaeeesseeseeseseseeseessnseeeeeespassim Xv1 People v. Gonzalez (1990) 51 Cal.3d 1179 ceeececcceseseseeteeeeseceseecsseseeesseeseceseseaeeeseseeereeseeeees 255 People v. Gonzalez (2006) 38 Cal4th 932 ooo. ccccssssscecesssesecseeeseeeesseeeseeecsaeseeaeesaeeseeereeaes 122 People v. Gordon (1990) 50 Cal.3d 1223eecceeesessessececceesecsseeeseesseeseeeeceseeeeesseseeeeaes 140, 152 People v. Griffin (2004) 33 Cal4th 536 oo. ccccccscessesseeseecssessessseseseseessesaeesseeeeaeeeeeeseereenes 280 People v. Guerra (2006) 37 Cal.4th 1067 oo.eeeccseeseeseeneeseteeeeseeesereneecees 182, 219, 250, 255 People v. Gurule (2002) 28 Cal.4th 557 ooo eecccccesceseccseceenceesseeseeeneceneeeenecenceeeaeeteeenneeeeespassim People v. Harris — (2005) 37 Cal4th 310 oo... ccescesseesecseeeeseesesseesessaeeeneeees 144, 147, 250, 286 People v. Hart (1999) 20 Cal4th 546 oecccsceeessecssecesecsessessaeeseeaeeeseesaeeeceseeeneneeeates 227 People v. Hartsch (2010) 49 Cal4th 472 ooo. ec ccccceccesecsseenecesecsecsesesesseescecenesceseceeeseaseeesaeeenees 286 People v. Hawkins (1995) 10 Cal.4th 920 ooocecseecseseecssecsecesecseenecseesesesecenceeseaeeeees 280, 284 People v. Hawthorne (2009) 46 Cal.4th 67 oo. cecceesessceceeseceeceesseeeeseeseesaerecaeeceseeseetaararenesaenes 290 People v. Heishman (1988) 45 Cal.3d 147 ooccccceseceeeesecsssesseseessecsecesetseesaeenasteceeseeesereeeees 165 People v. Hill (1998) 17 Cal.4th 800 oo... eeseeesececcesencteeeseneeeeeaseaseeees 156, 165, 180, 223 People v. Hillhouse (2002) 27 Cal.4th 469 oo.eecccssesseecesseeseeeeeecesesaseesaecaeeeeeeeesesseeeseeseaeeas 290 People v. Hines (1997) 15 Cal4th 997 oooce ceccssececeseesseesesecseceecsecasececaeenessttereecresseneeaes 262 People v. Hinton (2006) 37 Cal.4th 839 ooo ceeeseccesceceeeseesceeeseeceecsetareesaeeeeseensaeeetsees 156, 228 XVli People v. Holloway (2004) 33 Cal.4th 96 ....cccccscssesscsseerseeceeeereeeseactaseecseeseeessnrssssessseaieaeesees 185 People v. Holt (1997) 15 Cal4th 619oecccecsecececeteercseenesseseetseseaeseseseseesseneeees 161, 287 People v. Howard (2008) 42 Cal4th 1000 0... cee csesscsseeeeeeeeceeseeceaceeeesseesesecsussssaseeeseseseeenees 144 People v. Hoyos * (2007) 41 Cal4th 872 ..occiccccceesssscesecessreseeeeeceeseeseseeeeereeseseeeseneneaass 286, 290 People v. Huggins (2006) 38 Cal4th 175 occcecseseesecnsesceeesaceeceeesaeeseeeseesssssssesssseesesensseeseees 166 Peoplev. Hughes. (2002) 27 Cal.4th 287 .oo..ccccseccscssceseeseeeseseeeesceeesseeeseeeseeesseeseeneetsaseaseases 286 People v. Jablonski (2006) 37 Cal.4th 774 oo. ccccccscsecseeserseesceeseessseeecseeeeseteeesseassesassesessssscness 154 People v. Jackson (2009) 45 Cal4th 662 occcccseceeeeseceeseeeeceeeeeesceseteeseesesessnessenseseesessaneeas 169 People v. Jennings (2010) 50 Cal4th 616 oo.ccseeseeseesseeeseeeceeeseceseeeeseseeessusersesesessesseeseea 263 People v. Jones (1998) 17 Cal4th 279occeeseceeceessesecreseseseseetesseassesseceesereenees 186, 262 People v. Jurado (2006) 38 Cal4th 72 ooo. ccccecceseesceseeseeecneceseeeceecserseeeecsesenesessseeseeaseaes 178, 243 People v. Kirkpatrick (1994) 7 Cal.4th 988 oooeee seseeseeseeeceeeecsesseeseseseenssesseseessseesesseseeseeess 244 People v. Lancaster (2007) 41 Cal4th 50 oo.eeceseescseeeeeeeeeeeeeeseesereenessassesessnseeseseeeass 233, 235 People v. Lanphear (1984) 36 Cal.3d 163 oo ieesessesscececeterescesereseeeesesueceeesesensecstatateeeeteeees 251 People v. Lee (2011) 51 Cal4th 620oeeeeseteereeseerereee Veceeseescetsneeeeeeee 286, 287, 288 People v. Lenart (2004) 32 Cal.4th 1107 oo.eeceecescecereceeeetseeceeeseeersasseesessessecseteesseeeeees 285 XViil People v. Leonard (2007) 40 Cal.4th 1370 oo.ecceceeescecssesseesseesenecesaesnesseesaeersatesseeeaes 271, 273 People v. Lewis & Oliver (2006) 39 Cal.4th 970 oo. ccceccecceccsseeeecseeceeeeeceteseeseceeaceaeeseecsetsesseaneseaeeers 243 People v. Lewis (2001) 26 Cal.4th 334 oo. ceccccceseessecesceseeceeeessaeeeseseaeecessaeceneesesenenectesenees 268 People v. Lewis (2009) 46 Cal.4th 1255 ooo ceeccecesecseceeecseeseeseecsseseenessceseasaceaeeeseeteees 226 People v. Livaditis (1992) 2 Cal.4th 759 ooo cccesccssecssesseeeeceseesseeesseeeeesseeceneeasaes 175, 178, 179 People v. Loker (2008) 44 Cal.4th 691 occcsceccccsseseesestceeeeeseeseceeseesseeeeceeesersseneeeeeaeees 237 People v. Lomax (2010) 49 Cal.4th 530 ...cccccceccccessessecessesecceeeseseeeceseacsaeeaneseessceeessesseeeeees 273 People v. Lucero (1988) 44 Cal.3d 1006eeeeeseeseeescesseceseseeseeseseesreneeeeersetaeenaeees 221, 222 People v. Lucero | (2000) 23 Cal.4th 692 oo. ecceceesceecseessesecensscersesensecsesersaceensees 241, 287, 289 People v. Ludviksen (1970) 8 Cal.App.3d 996 ooo. cesecescesscecseceseceseeeesseeesetseeaeessesensesesesaneeenaees 187 People v. Marshall (1996) 13 Cal.4th 799oieceeecneeseeeeeseseseeeesecsetesssssecsecsessssessensersenees 178 People v. Martinez (2010) 47 Cal.4th 911 occcssecnsereceeceesssenecesecseeceenseaeeeseneeeeees 228, 229 People v. Massie (1998) 19 Cal.4th 550oescesceecseesecsenenessessesseeraseeessessteseetseseneesetees 185 People v. Mattson (1990) 50 Cal.3d 826 oeceecseceecserscesecssesetensnssersssegensesstsesanesseeseees 214 People v. Maury (2003) 30 Cal.4th 342 ooeseeecseeeeeeeecsescscesesssessesseseseeseassaesnensesaenees 167 People v. Mayfield (1997) 14 Cal.4th 668 occeeceecsseeesesssseeeeeeesceeseateateeseesees 159, 161, 195 X1xX People v. McKinnon (2011) 52 Cal.4th 610 . . 2011 WL 3658915 ooesetecsssseesececsesesecsecssssserseseeees 287, 288, 289, 290: | People v. McPeters (1992) 2 Cal.4th 1148 ooo ceeceeeeeeeeeseeseeecsececneraesseseeseseeseeseseesteneeneesesee 266 People v. Medina (1990) 51 Cal.3d 870 oieeeeesenecseeceeseeseeaeesecseceessssrseressesseseesessenteeneeeees 163 People v. Medina . (1995) 11 Cal.4th 694 ooccceeneseeeereeereeeeeeteeseseeesesaseessesenseeeess 163, 242 People v. Melton (1988) 44 Cal.3d 713 wccessscsceceesecseessseceseceeceesesseeesessessesscessecssessueeens 243 People v. Mendoza — (2000) 24 Cal.4th 130 on.ececcseeseceeesceseesesceetssesesseeseeseessesecsenesees 108, 270 People v. Mendoza (2007) 42 Cal.4th 686 0...eesescseesesseeseeeceeeseeseseesesesscersesetsesersesees 168, 290 People v. Mendoza (2011) 52 Cal.4th 1056 oo... ceceeesceseceeseeseeeesessescsssesersessseeeesseseesseaeeseees 264 People v. Michaels (2002) 28 Cal.4th 486 0... ececescescnreeceseesecseceececetecsssseeseesseseesesseresneeseeees 289 People v. Mickle (1991) 54 Cal.3d 140 oo ceeeecseeeeeceeetecseeeeeeeseneesessesenseseeseeseseeeeneseeseseesees 243 People v. Mincey (1992) 2 Cal4th 408 ooo. eecceeceecnecseeseecsesscseceeseescssessssesecssseesenssseneenens 284 People v. Mitcham (1992) 1 Cal4th 1027cceeecceeeseesecseseeeeceeeseseeeesesasesesseresassesesneeennens 240 People v. Moon (2005) 37 Cal.4th dooceeeeseeecseeeersssssssarsessesssesesseseesseseeereneeaeeneespassim People v. Moore (2002) 96 Cal.App.4th 1105 oececssecssceseesseseesesesessssseesssseseesesnereeesee 151 People v. Moore (2011) 51 Cal.4th 1104 oooeeeeeesenecsaceereseeeseesesssessesseesseseeseesseeseenes 286 People v. Morrison (2004) 34 Cal.4th 698 oooecsececsesseeeesescssesesseseneesesecsessessesesesseneeneees 288 People v. Mungia (2008) 44 Cal.4th 1101 ooocecccceseseescesceeeeeeseeseeeeeeaerees veseesseenees 253, 290 People v. Musselwhite (1998) 17 Cal.4th 1216occcnecsesecsceessesseeeesessecaeeeeeacseeeeecaeeateesees 262 People v. Nakahara (2003) 30 Cal.4th 705 oo cccecccsssceseesseresseecsesseceeeseesseoneeecseeeesseeessdeaeeaseess 289 People v. Neal (2003) 31 Cal.4th 63 oecccesscccsecereeseceeeeseseeeceeseecsacessceseeseseeeteeeeseateeates 189 People v. Nelson (2011) 51 Cal.4th 198occecsesceeeesseseseeseteceeeeseaseeeeseeereeeeesSe eseseeees 195 People v. Noguera (1992) 4 Cal4th 599occeeesesseseeeseeeeeeseeeeseeesseseaeeaeneeseesetiseneaeenesaees 265 People v. Ochoa (1998) 19 Cal4th 353 ooecescsceeecceeseeessseeeeesecessesseesecaseaeeetseneeaees 229, 265 People v. Page (2008) 44 Cal.4th Docecceceecenecesscsecseneeseeseesssseeesensesseeeaseeeetes 264 People v. Parson (2008) 44 Cal.4th 332 oo eeccccsccsecessseessesseseesessssceseceeesseeeesseeessesaeaeeseenees 287 People v. Perry (2006) 38 Cal.4th 302 oooeceeccseesesetsesscesceeesseaeteesaeeseeressseeseeeeeas 287, 290 People v. Pinholster (1992) 1 Cal4th 865 occccccsecssensesesseeseeecseessesseeerseeaenaeenees 159, 161, 241 People v. Pollock (2004) 32 Cal.4th 1153eeeccceccseeseseceeceeceeessersesesereceseeeeaesesseeeeaeeaeeates 180 People v. Price (1991) 1 Cal.4th 324ocececccssecseceeeceecsessesesesesseeseeseesesaeeneeearses 168, 243 People v. Pride (1992) 3 Cal4th 195 occcccccsscssssessecseessessceesseceseeseeeseseseeaeteeeseeespassim People v. Prieto (2003) 30 Cal.4th 226 oo.ceseneeseeseeeeesceeecesscaeceeseersecataseeetateesaeees 289 People v. Proctor (1992) 4 Cal.4th 499 ooceececeseeeesesseteaeessesessesseneeeeeetaceeeeeseeteatees 146 XX1 People v. Raley (1992) 2 Cal.4th 870 oo. cececcceeseceseersceteseeceeeseeeseesssessesescssessssssseeseeneees 226 People v. Ray (1996) 13 Cal.4th 313 oiecceeeceeeeceeeneeseeeesseseeseeersesesescsessssessseseeeseseases 186 People v. Richardson (2008) 43 Cal.4th 959 oiieccesecseeneseceesesserseesessecsecsssenesecsassesseseaseerseentes 208 People v. Riel (2000) 22 Cal-4th 1153 oecseeseeeeneeeeeesseseeseeseerennesenneanesVeseueeseeseeeeeeees 271 People v. Riggs (2008) 44 Cal4th 248 oocscceeenseseeeeeseetseeeesseeereeeaes 207, 208, 229, 238 People v. Rodriguez (1986) 42 Cal.3d 730 oo. eecescesessceseseesesseresesesescsessessesessessesesseasseenes 149, 288 People v. Rodriguez (1999) 20 Cal.4th 1 ooececceenecsecnesseeseesseeesseeseessesessassaseassssessessesereaeees 195 People v. Rogers (2009) 46 Cal.4th 1136 occeeeccssesseeeresceesceceeseesesessesesssstseesesseesses 264, 287 People v. Romero (2008) 44 Cal4th 386 occeeccceecntecseceeeesessessesesesssssesssesecssseeseseneneenees 266 People v. Rundle (2008) 43 Cal.4th 76 oo... eeeecscseeseeseceseenseesessseetsasereeeeees 182, 219, 250, 255 People v. Salcido (2008) 44 Cal4th 93 oooceceecseeeeceseeesecnetesetsesereseecenseseneeess 285, 286, 287 People v. Samayoa , (1997) 15 Cal.4th 795 occceccseseeceeceseceesessesseessseeesesesees 156, 235, 236, 289 People v. Sanchez (1995) 12 Cal4th 1 oeececseseeeeceeseeeeessessesenseseeseeseteees 226, 241, 264 People v. Sandoval (1992) 4 Cal.4th 155 eeeceeeeeenecsecseeseseeeseessesseeesseesssssseseseeseesecseeeeees 160 People v. Schmeck (2005) 37 Cal.4th 240 oe.cccccecessscsseeeeecceeeeceeeneeaeeeeeneerseeees 203, 269, 270 People v. Scott . (1997) 15 Cal4th 1188 oooeesesecseceeseesseeseessecsessessssessesssesserserssseeaceee 116 Xxil People v. Sears (1970) 2 Cal.3d 180 o...eeeccceecceceeseeseeeeessesececeeeaceanceneenaesrsnseeaceaseeeessesarenees 264 People v. Sims . (1993) 5 Cal4th 405 occcccceccccsseesecteesesseneeeeceeesseeeesseseesecseeateeveee 153, 190 People v. Smith (2005) 35 Cal.4th 334 oeecccseecceecesecseeeseescessesceeseessceeeessceseeaeseseeseateaes 213 People v. Smithey (1999) 20 Cal4th 936cece esescecceeesseeeceesterseceeeneseseessessessssesseesseeeeseas 235 People v. Snow (2003) 30 Cal.4th 43 occesssccssssseeeseesecereeceeseeeerseeesasenes 121, 123, 129, 134 People v. Staten (2000) 24 Cal.4th 434 ooceesseceseceseenecersenersesseeareetessssessesenecees 119, 155 People v. Stitely (2005) 35 Cal.4th 514 ooccccseecessecesecseseeceneseeeseeeeaeeeesaceenteeesetees 157, 286 People v. Sturm (2006) 37 Cal.4th 1218 ooeeessceeeeseseeeeneceeseeseseneeees 120, 121, 127, 128 People v. Sully (1991) 53 Cal.3d 1195 oceeeesceeessecteeeeeceeceecacesevsaeeevsesseesstacsesarsacseeeas 287 People v. Tafoya (2007) 42 Cal.4th 147 occcccesssescsceeteseecesecsecseesescnseersetaeenereeeseaes 268, 288 People v. Taylor (1990) 52 Cal.3d 719 ooo ccecscessesseseceseceeseeeesecaecssesreseeeaeeaecaesaeeeeeaeseeeeees 288 People v. Taylor (2001) 26 Cal.4th 1155eececesseeceseeseseeeecsceceeeseeceeeaeeesseseeees 240, 266 People v. Taylor (2010) 48 Cal.4th 574 ooeeescescessecseceeeeeseaecneessecesecssesesesssastenessaesnae 284 People v. Thomas (1992) 2 Cal4th 489 oocesesesseseesecsesnecseeeeeeceeseeesaeeaesecseceesseeesneeeeeetens 181 People v. Thomas (2011) 52 Cal.4th 336oeccecsssscesecnsenseeceeceesserscesaeseesecsesseescessatesseeeas 286 People v. Thompson (1988) 45 Cal.3d 86 occeescesesesesseeteceecseceeeecsecsetsceaeeecsesseesensenseesaneeeeeas 289 XXili People v. Thompson (1990) 50 Cal.3d 134oesscseeneeessseeesserereaecssessessesceeesaeeeseaees 226, 284 People v. Thornton (2007) 41 Cal.4th 391 oo...eee ccesescessesseessetesesaeeseeensesseeeeeaees 219, 220, 250 People v. Tuilaepa © (1992) 4 Cal.4th 569 ooosscesseeseeeeeeeestersnessesseeseesaeeeeseseeseesseseeeeees 289 People v. Valencia (2008) 43 Cal.4th 268 .......cccccccssscccssscssceecesnscesssecesssessssueeseeeecseecsaeenspassim People v. Vieira (2005) 35 Cal4th 264 occcccsecsscssessescessesseneetseeecsesesseeteseseesenas 229, 261 People v. Vines (2011) 51 Cal.4th 830 ooo cceccceccsscesecsceeseesseeseescesseesecesaceeceaeeneeeseeaeeenees 285 People v. Visciotti (1992) 2 Cal.Ath 1 vcscccccssssscsssecsessssscsssssssessssssesacessssssesssastensasesseanese 289 People v. Waidla (2000) 22 Cal.4th 690 oo.ceeeeccseesceeceetesesesceseeeeeeeseseeeeeseessseeeeseras v1212 People v. Wash (1993) 6 Cal.4th 215 ooo ccecccsscssccssecsssesseesscesessecnsecececsececeeseseaeseeeeeseeseneees 230 People v. Watson (1956) 46 Cal.2d 818 ooocceccccsseceseeseceseceeeecesseesseeeeseeeeeneeees 181, 208, 209 ' People v. Weaver (2001) 26 Cal4th 876ceeeeecsseeseceeeceesesscesersceessessesesssecesseseeenseneesees 287 People v. Whaley (2007) 152 Cal.App.4th 968 oo... cccccesscesscssessececereceesecenecetecseeetesees 150, 151 People v. Wharton . (1991) 53 Cal.3d 522oeeeeseeeeeeeeees seseseseasesesesseseasesesesneseaneaens 166, 167 People v. Whisenhunt (2008) 44 Cal4th 174oeccesscssceeseesesseeacesseeneeesaseecsesseesesseees 228, 286 People v. Williams (1997) 16 Cal4th 153 oececeeccsccssecsecsnecssecsecseeesseesesseceseescesseeseeeaseesees 289 People v. Williams (1997) 16 Cal4th 635 oo.eeceseecseeseeeeesecceecereaseeeseaeeeressecceeeeeeeee tecsseeeaenees 186 XXIV People v. Williams (2006) 40 Cal.4th 287 .........aeeececaceceeneesaeaeeeaectesseeeeesvarsaeeeaeesseeseeses 177, 179 People v. Williams (2010) 49 Cal.4th 405 oo... cccecscceccsesccessecseeaceeseeseeeeenaceeetaessesenes 159, 241, 256 People v. Wilson (2008) 43 Cal.4thr oo.cecccccsesssseeseceesesseeseeeseeesaeesesaseseseeeaeeesaeseeees 272, 289 People v. Wright . (1990) 52 Cal.3d 367 0... .ceeeeesccscereeeeceerseseseeeesesaeeeetensersessessseeseasseussseeaes 256 People v. Young (2005) 34 Cal.4th 1149 ooceecnessseeseeeeeseseeseassesseeseesseesaneaseeeeteas 285 People v. Zapien (1993) 4 Cal.4th 929oeceeseceseeeeceeeesersessceseesseeaseessenasensnes 243, 253, 254 Ryan v. Doody (2010) 131 S. Ct. 456.ceecceecteeeneceeeeneeeeeeseeeesessesseseessseeesesecessesseseeens 189 Sattazahn v. Pennsylvania (2003) 537 U.S. LOL... ee ceececeeseeseseceseneeeeseeceeseceaeeeeeenseseveeeesssssssseseeseoanees 278 Sons v. Superior Court (2004) 125 CalApp.4th 110oesceeseesseeneeresssseseenesseessenserseess 283 State v. Baker (1998) 310 N.J. Super. 128 voceeccsecneeeeeceeestseeeeaseeeees 280, 281, 282, 283 State v. Sugar (1980) 84 N.S. 1 eeeesecsccsecssectecseeseetseesessteesesssesessessessseseestensesescseseaseess 283 Wong Sun v. United States (1963) 371 U.S. 471 ccccccscscecsccseteceeeeneeseeenaeteeesenesseseeseeseesenersessseerseesenes 189 Woodson v. North Carolina (1976) 428 U.S. 280.0... eceescesecesceeeseeeeeeesns aececeseteeceesesuseeseeessaseenssees 279, 280 XXV STATUTES Codeof Civil Procedure S LTO oe eececccccsccscceseeseesseeesesseeceesaceeseeeseescecsecceeaeeaceeacececeseeeaseesesssesssnaeseeenes 99 § 170.1, subdivision (€)(6)(A)(i11) ...... eee eeeeeeeseeeeatenreeessessecneecssrensesesees 105 §§ 170.1, subdivisions (a)(6)(A)(1), (A)(7) ..-eeceeescessestcesesceeseeesseseeeneeseeee 110 § 170.3 ececcesescescescescesnceecceseaeesessecsecseesceseceesaeeecaeesesseesecuesescsecsseeassaseseeeenes 112 § 170.3, subdivision (d) .....ceeecceceesseeeeesceeseeteceecsceseeeaeeeseessesseeeeseseseereeees 105 § 170.4, subdivision (D) ....... ce eeecesseeetsesseeecseescesseeseseeensetesesasessscssassnsecees 112 § 170.4, subdivision (C)........cccceceecceeecseceeeeeeeeeeeseesaeeaseseeessesseeassanseseseaseeeee 112 § 170.4, subdivision (C)(1) ..cccessesssssssecsssssssesseessessesssesssesessesssesssecseesveeseesees LL Evidence Code § QO.eececcesccsseeeesecenceeseseesevsceaeeseceeseeteeeetseeeeaeeeeseseeatsaseessuees 195, 196, 212 § 35Qecccccecssscssccnscesecsneceeecsesececscessecenecseceseeceesaeeseceaeeaesereseessnesseeessneeseegey 212 SBS Li ceeeeseessseescesesseceesesseeceseceseeaceeesseeaesseeeseesseseessessessasessstesssneseseeeeneey 195 § BaDeeecesceeseeeecceeceesseecseeceseesacersneesscersaescssecseseseseeesseeecsesensesseeesesaspassim § 353 cececcccsscessecsseereceseessessesseeceeessecaessceeseeeseeseciesaeeseeaeesseessseseesteees 195, 214 § 356. ccccccsssescesssscescessessescesceeseeaceaeeseeseesecaeeeerseeeseeeeeaecsesesessseeseussaseneasenes 206 § AODececccsescescessescceseeeeesessecseeaecaecseesecaeceeseseeeetereceesecasessseseussasensenseeenes 211 § D2 ieecccccsccssesecsessseccescececeeesecneaceeeeseeseeaesseceeeaeenseaseasneesseesssensseseassssaeseases 203 § 721, SUbdIVISION (D) 0... eeeceesceeencecteeceeeeeseeteeeeseceeeeeceeesuseassnesessasseensees 205 § TOS ..ccccsccsccsscsscssessescesccesenseesceseeseesecaeessssccaeceaeeeeseseeesceseeseereseseseessesetsesssees LOD § 800... eccccccseesceccsecseesseeseesseseenecseceesaresecseseserseessesseereseesesseadssnsenseasens 195 § 801, subdivision (a)............sesssescseeesesssceececsescssaeeesesesesecaesesessnensnesenaneeates 214 § B02... cececccccssscsscesecscecsecseeseecaecnsecscesseeeeseceesacessesaeeasesesessesseeseessaeseseeseeeeed 204 § 1150, subdivision (8) .......cccceeeceeseeseeececeeceeeeeeeessecssseeeasseseseesseeenseessaeeeses 270 XXV1 Penal Code $§ 28 and 29.cecccccccssscesseececesseccenssseeceseescessceescesessaeeesseneeeesssesesseaeees 231 SSTcee eeececceseecesseeeecesceesseeeeseesseessensenseseaeesseaeeceseeeseneaeseeecseseeceeesetsesteeeates 10 § 1902ecccessceseeseccnseeeesueceseeseeesesaessnersneecesecseeaeeseeseesesesseaseaesaeeasteeeeas 285 § 190.2, subdivisions (a)(3), (a)(15), (€)(17) ..eeccccssceesceeecesecseeseeeeeesesseeenens 10 § 190.3ee eescccescsssccesseeceessesseeccsecessaeeseseecsseeeeeeessessesceeeeeuecesgessaasersnteespassim § 190.3, SUDCIVISION (€)........cessceesecessesseeeseeenseeecenecsaeeeeeececeateeeernneeeees 240, 255 § 190.3, SUbdIVISION (D) 0... .ecceseesesseesceceseceeseessesceecceseceseceseeeseceeeeseetetenses 243 § 190.4, subdivision (D) .......cccecessessesseesseesseteceseeeseeseeaeeeeees 9, 275, 279, 284 § 190.4, sUbdIVISION (€).......ccececesecsccseeeceeessesseeeesaceeseeseeeseecaeeseeeteesasenses 132 SQL Lecceceeecsccesecseeesseesecoeessesssessesaeeeneccesaseessecseseeseetsaeerecsesenesseeaeeneeenees 10 8 SOLeecccececeseeescceseessessceersseceseceesaeesseeseesaesceaesaesesesetenessecseesserseenseaeeeates 10 § 496, SUBCIVISION (2) ........ccscesssessscessesseceeceesecesesseceeseseceeeseceecesacerasensessaeens 10 § 664eeeccccsscescceecscetencenecseseesessesnsneesaesseenecsesaessesssenesaecsaessecseseeseseatenseas 10 § 87Oeceesceseneceeeseescessceseesesecscecaesessesseeanenecsesseaceeseseaeeeeeseteeeaeeseneeeneeees 100 § 1033eeecceeceeseeseescceceescesneeecsecessesesseesseeeasenseaeseeeseeeseeseaseaeseecseeesees 133, 134 § LOB6... ceeesecceccsseeseeseeceesessesscsesaceeesesssesaeseeseseesesseeeeseeeeeseasersereeeeneereetes 133 § 1036.7. ..ceeeccesceccescesceccescecscsscesscecesseeseesseessessesessecseseeeseneeseesseseseseessaaeenes 133 § 1044.eeebeaaeesseacessensecsacecesaeseseccensesseasceneaecseseaeeaessecenesseeaeeanens 122 § 1LOSO..eee eeeceeteeeeenecesceseeseeeseesesececeeseeseceeseesecaseaecaesaeeseenseseeaecerseeeacaes 254 S LLDSeeeeeeeeescecesneseesecseeseecesseeeseescesaeeeeseeeseeaeeeesesseeseeaeneesessesseeeseneess 10 § L138Lecce ee ccceseescesceeeeesscessensecseessecseeseesseesaesassesseseesnessesesseseseeaeeeseesesaeengs 152 S LL4Oeecesseeseesecesseesneeceseessesseeseseseeseeecessecseseesaeseaeeaesseesaeeaseassaeenss 144 § 1203.06, subdivision (@)(1) .....ccccecessesssessecssceesesecesesteestecseeseasesseseseseseenss 10 § 12022.5, subdivision (a)(1) ......csescessseesessseseeccseeeseeeeceeceeceeeseeeeeseeenseneeeates 10 § 12022.7, SubdiViSION (a)........ccececseessecsseceececeseeeseecsscesecneceseeseeeneesesesaeees 10 3 Witkin, California Procedure (4th ed. 1997) Actions, § 73 ......ccscceeseeeees 115 CONSTITUTIONAL PROVISIONS United States Constitution Sixth AMendMent.0.......c ccc ccccccceecesececessceessecscesseeesseessseeeseeeses 203, 279, 280 Eighth Amendment .0......0ccccccssssceseesscsereeeseeesceseeeeeaeeseres 240, 279, 280, 286 Fourteenth Amendment..............ccccccesscecsssesssecsscesseesseccseseeseeessseesess 227, 258 XXVi OTHER AUTHORITIES California Jury Instructions, Criminal NO. 1.00... cecessceseceeseteesceeseeeeeassecseseeeaceeeceeseesaeavsesessassessceseeseases 258, 259, 260 NO. 2.28 .o..cccscsscssesesceceecessessseececeseeeesecsceseesasscssesessessssesesesseseeseseenseesesesesaees 207 NO. 8.88 ...ccccscccesssececeecesecessecessneesseeccsseeesesseaeesseessaescssssesessusenssensagerenseespassim NO. 2.28 .ccccccscssescscssessesesceseseseeecaecececeeesecseesceacseseesuesssessscssecsssseseeseeseneenees 207 NO. 2.42 ..ececcccesesceseeseceescsecsesceseeesececsceeesceseessesesesseaseesssesseeseeesensessensseneneees 237 NO. 8.85 ....ecesceseeeeesceeeseeseseeseeeeeteseeessesseasseesesneeeesees,..260, 261, 264, 266, 287 NO. 8.87 v.ccscccssssecesceecesceccsccceececesesenceceeseceeseeseeeseeseesaesssesessssessaseaeseneeeeseees 262 NO. 8.88 ..ccccsessssssessssessescesessececeeecesseeseeaceseesceesseseesaessseseaseterssesssaeenesesnseeens 259 NO. 8.88(A).cccccccescssecceseeecseesseeecseeeeeeeseesecseessseeseessessssnessesseeseatensenensessseens 260 NO. 17.30. ..ccceccsseeseecessesccsceseceeceeesesenceceseeseneeeseeeaceseeseessseueesessssscseeeenseeseenees 128 NO. 17.40... cscccscesesceceeecsseeeeceessceeeseeseesseeesssesessseesesasesesseees 139, 151, 262, 263 NO. 17.49 .ecccccscsssscsssscecescesencesesceseceescesceseessessseeesseessesesecsssesercassecsesseeesaseeeas 264 NO. 17.50. sceceeesescseceeesececeecececersceeseneseesevseescseesesseseseenscsseenseeseneenseseneesseaees 264 http://www.urbandictionary.com/define.php?term=crank (as of October 5, 2011).eeeee eee eeeeeeeesessecseesessseseeeeessessseseeeneenesseseeenees 39 Jefferson’s California Evidence Benchbook, 3rd Edition.......ccccceeerreee201 XXVIi1 INTRODUCTION Overa five-month period, beginning in June 1997, appellant terrorized the city of Stockton. He carefully planned and orchestratedhis one-man crime wavethat started with an auto burglary and theft of a gun ~ and culminated in the ruthless murders of four defenseless people. Explaining his motives, appellant wrote in his self-titled “Biography of a Crime Spree,” that he committed the murders because he always wanted to know whatit would be like to kill someone. Also, in the case of one victim, he wanted revenge. _ On June 21, 1997, appellant burglarized Michael King’s van, while King and his family were at a nearby park watching his son’s baseball game. King, an Alameda County Sheriff’s deputy, was off-duty at the time. Amongother items, appellant stole King’s service weapon—a Glock .40 caliber handgun. Having also secured King’s personal information from the van, appellant placed an anonymouscall to King the following day and said, “Thank you for the fucking gun, you idiot” and hung up. A couple of months later, on September 16, appellant went to Cal Spray—a former employer—andexacted revenge for having beenfired. In the early morning darkness, appellant vandalized numerous employees’ vehicles, which were parked in the lot. When ThomasHarrison arrived for work and drove into thelot, he happened uponappellantleaning into one of the burglarized vehicles. Appellant pulled out the stolen Glock andfiredat Harrison, striking him in the leg. As appellant fled the scene, he continued to fire over his shoulder. Harrison noticed that appellant smiled as hefired at him. | In need of money, on October 24, appellant walked into the Bank of the West that afternoon. He was wearing a jacket, ball cap, and glasses with dark lenses. Appellant went to bank employee Jason Tunquist’s teller station and pushed a note toward Tunquist, which demanded money. In exchange for Tunquist’s compliance, no one would be shot. To impress upon Tunquist the seriousness of the demand, appellant pulled out the gun, cockedit, and aimed it at Tunquist. Tunquist gave appellant the money in his drawer, which totaled about $900. Appellant fled. Two dayslater, on October 29, after disguising himself as a stranded motorist in need of a tow, appellant lured a former co-worker from Charter Way Tow, James Loper, out to an isolated rural county road. When the unsuspecting Lopergot out of his tow truck, appellant began firing at him. Loper desperately sought refuge under his tow truck from the hail ofbullets. Undeterred, appellant leaned down, canted the gun, and continuedto fire at Loper underthe truck murdering him. Appellant, who had been fired from Charter Way Tow, considered Loper a “goody goody two shoes.” Knowing he had just created a vacancy, appellant called his former employer the next day, expressed his sympathy over Loper’s death, and askedifhe could havehis job back. On November4,after carefully stalking his next targetand planning his escape route, appellant walked into Mayfair Liquors, which was a small neighborhoodstore, intent on robbery and murder. A surveillancetape, later obtainedby police, showed appellant repeatedly firing at store employee Stephen Chacko as Chacko ran for his life toward the store’s front doortrailing blood behind him. Chacko died just outside the front doorin the parking lot, felled by appellant’s greed and lack of humanity. Appellant shot at the store’s register to try and gain access to the moneyit contained. Appellant went to Walmart later that day and shoppedfor more bullets. He was not done. Whennewsof Chacko’s murder broke, appellant and his wife Carol were watching a newsreport. Before the murder victim’s identity was revealed, appellant confirmed for Carol that it was Chacko who was dead. Appellant smiled and said somethingto the effect of, “Weall go.” A weeklater, on the morning ofNovember 11, appellant went to Village Oaks Market, which was a small “mom and pop”store in appellant’s neighborhood. Pretending to be on a call at a payphonejust outside the store, appellant waited until the store was free of patrons before entering. Whenpolice later arrived on the scene, they found a male employee, Jun Gao, laying dead on the floor, someofhis teeth scattered near his head—theresult of a bullet that went through his neck and outhis mouth. Another employee, Besun Yu, was barely clinging to life. She was found unresponsive and huddled in a fetal position behind the store counter. Appellant had leaned over the counter and shot the diminutive woman twice as she cowered and crouched downtrying to shield herself with her arms. Yu died of her woundsshortly after medical help arrived. This time, instead of shooting the store register, appellant tore the cash register from its moorings and took it with him when hefled. Writing of the murders shortly afterward, appellant said, “I never thought the two people in the Village Oaks store would die. After all, I only shot them two times each. Haha.” Whenpolice arrested appellant the next afternoon, they found the tools of his murderoustrade in his backpack: a black nylon jacket, green knit gloves, a black baseball hat, a police scanner, a police radio call book (with various radio frequencies for the local police and fire departments), and a blue folder with the words “Biography of a Crime Spree.” Inside the folder, were newspaper clippings from appellant’s various crimes. In appellant’s fanny pack, police found a small pair of binoculars, a Swiss army-type knife, a buck knife in a holster with appellant’s initials, handcuffs, pepper spray, and Mike King’s sheriff's badge and identification. Whenpolice searched appellant’s apartment, they found, among other things, a map of Stockton with certain locations marked, including Mayfair Liquors and Village Oaks Market. There were other businesses highlighted on the map. Whendetectives interviewed appellant after his arrest, he repeatedly and steadfastly denied involvementin the crimes. It was not until detectives confronted him with statements made by his wife, which implicated him, that appellant confessed. He led them to the murder weapon, which he had carefully wrapped and buried in field. At the guilt phase, appellant’s defense centered on his mentalstate. Appellantattributed his crimes to his abuse of methamphetamine and childhood head trauma, whichleft him brain damaged to the point that it impaired his brain functioning. The jury rejected appellant’s defense and convicted him on all but the attempted murder count. The jury was unable to reach a verdict on that charge, as well as on penalty. ‘During the penalty retrial, the prosecution presented the circumstances of appellant’s heinous crimes. Thejury also heard compelling victim impact testimony from the victims’ family members, as well as evidence about appellant’s prior convictions. Appellant’s defense, again, focused on brain damage that may have impacted his actions. The defense also presented evidence of appellant’s dysfunctional childhood. The second | jury returned a verdict of death. On appeal, appellant raises various challenges in connection with the guilt phase and penalty retrial. To the extentthat appellant’s claims have been preserved for appellate review, considered on their merits, the claims are unpersuasive. A brief summary ofthe primary issues in each of these claimsis set forth below. Appellant raises several issues that center on allegations of bias on the part of Judge Platt, who presided over the guilt phase and penaltyretrial. In his first claim, appellant contendsthetrial court committed error whenit denied his motion to disqualify Judge Platt based on three ex parte communications that occurred between the judge and otherindividuals. Contrary to appellant’s assertions, the trial court properly denied the disqualification motion because the record did not demonstrate that the ex parte communications showed a probability of actual bias on the part of Judge Platt. In his second claim, appellant asserts the trial court erroneously denied his motions for a mistrial and for recusal of Judge Platt. The motions were based on Judge Platt’s physical condition, the jury’s knowledge thereof, and the purportedrestrictive effect of this situation on defense counsel’s advocacy. However, appellant’s claim is not cognizable on appeal. In any event, the motions were properly denied because there wasnothing about Judge Platt’s physical condition that impacted defense counsel’s ability to advocate on appellant’s behalf. Appellant asserts in his third claim that the cumulative effect of Judge Platt’s alleged misconduct andbias violated numerousfederal and state constitutional guarantees. Contrary to his contentions, appellant’s claim fails because, when the record is reviewedin its entirety, it demonstrates that Judge Platt ensured that the guilt phase and penalty retrial were conducted in a manner that was fair to appellant. Appellant’s fourth claim alleges the trial court improperly coerced a death verdict in its directives to the penalty retrial jury whentheyinitially indicated during deliberations that they were at an impasse. However, as the record demonstrates,the trial court’s instructions and suggestions did not constitute a coercive chargeto the jury. Next, in claim five, appellant alleges numerousinstances of prosecutorial misconduct involving impropereditorializing, deceptive practices, non-compliance with the court’s orders, and improper argument to the jury. While the prosecutor effectively fulfilled his role as a zealous advocate, none of the instances appellant cites in support of his claim— either singly or in combination—constitute prejudicial misconduct. In the next group of claims, appellant assigns numerousinstances of error to the trial court in its exclusion or admission of evidencé, in whole or in part, during the guilt phase and penalty retrial. With regard to his sixth claim, appellant argues that, during the penalty retrial, the trial court erroneously excluded expressions of remorse that appellant made to pastors and the prosecutor exploited the court’s ruling in his closing argument. Because the hearsay evidence of appellant’s remorse lacked indicia of trustworthiness, the court properly excluded it. Nor, did the prosecutor improper argue the issue of remorse,as the defense raised the issue first. Appellant’s seventh contention is that the trial court erroneously denied his motion to suppress his taped statement, and other evidence, because the statement was the product of police coercion. Since the record proved appellant’s statement was voluntary, the trial court properly admitted the evidence. Next, in his eighth claim, appellant challenges the trial court’s exclusion of proffered lay testimony,in the guilt phase and penalty retrial, on the effects of methamphetamine intoxication. However, the proffered evidence was inadmissible because it was not relevant or otherwise probative of appellant’s mental state at the time he committed the crimes. Underhis ninth claim, appellant argues the trial court erred whenit restricted cross-examination of a prosecution rebuttal witness during the penalty retrial, admonished the jury to disregard a portion of defense counsel’s examination as a sanction for a discovery violation, and failed to instruct that counsel’s errors should not be attributed to appellant. Because the line of questioning defense counsel pursued called for inadmissible hearsay, the trial court was correct in limiting the inquiry of the witness. Further, the court’s admonition concerning the defense discovery violation was adequate under the circumstances. In his tenth claim, appellant contends thetrial court erred during the guilt phase whenit restricted the mental state profiling testimony of the defense forensic evidence expert. However, the portion of the testimony the trial court excluded was speculative and unreliable. Therefore, the court’s ruling allowing some,but notall, of the testimony was proper. Next, in his eleventh claim, appellant contendsas error the court’s exclusion of purported corroborating evidence of appellant’s molestation. Hefurther argues that the prosecutor’s conduct exacerbated the gravamen of the error. On the contrary, the evidence was properly excluded because it was more prejudicial than probative and not relevant to defendant’s character or record or circumstancesofthe offense. The prosecutor’s argument was in accord with the evidence and court’s rulings on the matter. Appellant’s twelfth claim challenges the court’s admission of autopsy photosin the guilt phase and penalty retrial on the grounds they were inflammatory and cumulative. Contrary to appellant’s argument, the photographswere relevantas they clarified expert testimony regarding the cause and mannerof death, as well as being probative of appellant’s malice, deliberation, and premeditation in murdering his victims. Additionally, while the general nature of the photographs may have been unpleasant, they were not unduly inflammatory. In his thirteenth claim, appellant argues that during the guilt phase and penaltyretrial, the court improperly permitted the prosecutor to introduce details of the crime through its cross-examination of defense witnesses. Appellant maintains these details were irrelevant, inflammatory, and cumulative. A prosecutor may bring in facts beyond those introduced in the testimony of an expert witness on direct examination in order to explore the groundsandreliability of the expert’s opinion. Accordingly, there was no error. In his fourteenth claim, appellant raises several challenges to the introduction of victim impact evidence at the penalty phase retrial. None his challenges have merit. The evidence at issue wasstatutorily and constitutionally authorized. . Next, under claim fifteen, appellant contendsthetrial court improperly restricted the admission of mitigation evidence while permitting introduction of non-statutory aggravation evidence. In conjunction with this claim, appellant also arguesthe trial court erroneously denied defense motions to continue the guilt phase and penalty retrial. On the contrary, appellant was afforded ample opportunity to present mitigation evidence during the penalty phaseretrial and was only prevented from presenting evidence that did not meet the standards for admission. Further, the evidence in aggravation at issue wasstatutorily authorized. Last, because appellant failed to show good cause for his motions to continue, thetrial court properly denied them. In his sixteenth claim, appellant attacks the trial court’s rejection of certain defense proposals to modify and supplementinstructions during the penalty phase retrial. Because appellant’s proffered instructions were argumentative, duplicative of other instructions, or both, the trial court properly refused them. Appellant’s seventeenth claim challenges the trial court’s denial of his motion for a mistrial based, in part, on allegations ofjuror misconduct. In this claim, appellant also arguesas error the court’s refusal to remove a purportedly biased juror. However, because there was no juror misconduct or a substantial likelihood ofjuror bias, the court’s decisions were sound. In the next group ofclaims, appellant raises constitutional challenges to California’s death penalty framework. First, with regard to claim eighteen, appellant contends Penal Code section 190.4, subdivision (b), whichprovidesforretrial of the penalty phase of a capital prosecution, was unconstitutional as applied to him. Specifically, appellant alleges that the prosecution committed intentional misconduct for the purpose of securing a retrial, which should have served as a bar to the prosecution’s ability to pursuea retrial. However, appellant misapprehendscertain fundamental aspects of state and federal constitutional law as they apply to his penalty phaseretrial. Further, this Court has previously addressed similar claims and deniedrelief. Asfor claim nineteen, appellant argues the cumulative effect of the trial court’s errors rendered the guilt phase and penalty phaseretrial fundamentally unfair. We disagree. Noneofthe errors claimed by appellant, whether considered individually or cumulatively, resulted in prejudice. Last, in claim twenty, appellant contends that California’s death penalty framework violates the federal constitution and international law and norms. His contentions are standard objections to California’s death penalty statute and penalty phase instructions. Similar claims have been rejected by this Court and appellant provides no basis for this Court to reconsiderits prior decisions. Accordingly, the judgment and sentencein this case should be affirmed. STATEMENT OF THE CASE In an information filed on July 9, 1998, and subsequently in an amendedinformation filed on May 11, 1999, the San Joaquin County District Attorney charged appellant, Louis James Peoples, with four counts of first degree murder (counts 7, 9, 11, 12—Pen. Code,§ 187),' one count of attempted willful murder (count 3—§§ 664, 187), three counts of second degree robbery (counts 8, 10, 13—§ 211) four counts of auto burglary (counts 1, 4, 5, 6—§ 459), and one count of receiving stolen property (count 2—§ 496, subd. (a)). (3 CT 579-591; 6 CT 1563-1573, 1575.) The information further alleged firearm-use enhancements as to the murder, attempted murder, and three of four burglary counts” (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)(1)). Multiple-murder, lying in wait, and robbery special circumstances werealso alleged. (§190.2, subds. (a)(3), (a)(15), (a)(17)). Last, it was alleged that appellant personally inflicted great bodily injury in connection with the attempted murder count (§12022.7, subd. (a)). (3 CT 579-591; 6 CT 1563-1573, 1575.) Appellant pleaded not guilty. (3 CT 592-593.) On September 30, 1998, appellant moved for a change of venue. (3 CT 624-632.) Although the prosecution initially opposed the motion, which the court denied without prejudice on January 4, 1999 (4 CT 931- 932), the prosecution subsequently stipulated to a change of venue (5 CT 1337-1338) and the case was transferred to Alameda County Superior Court on March 9, 1999 (5 CT 1371). The jury trial was divided into two phases: guilt and penalty. After the conclusion of the guilt phase, on August 11, 1999, the jury found appellant guilty of murdering James Loper, Stephen Chacko, Besun Yu, and Jun Gao. As to these murders, the jury convicted appellant of the ' All further references are to the Penal Code, unless otherwise noted. * Counts 5 and 6 werelater dismissed on appellant’s motion, pursuant to Penal Code section 1118. There was no objection by the prosecution. The court denied appellant’s motion to similarly dismiss the attempted murder charge. (6 CT 1695.) 10 related robbery charges and foundtrue the firearm-use enhancements and special-circumstance allegations. (8 CT 2023-2024.) Further, the jury found appellant guilty of burglarizing Michael. King’s vehicle, receiving stolen property belonging to King, using a firearm to rob the Bank of the West, and using a firearm in the burglary of David Grimes’s vehicle. (8 CT 2023, 2025-2027, 2031.) The jury could not reach a verdict on the attempted murder charge involving Thomas Harrison and the court declared a mistrial as to that count andthe related allegations. (8 CT 2022.) After conclusion of the penalty phase evidence, the jury was unable to reach a verdict and a mistrial was declared on September 27, 1999. (9 CT 2499.) | The prosecutionretried the penalty phase to a new jury and on June6, 2000, that jury returned a verdict of death. (12 CT 3214; 13 CT 3348-3349.) On August 4, 2000, the court sentenced appellant to death. The court — also imposed determinate term of 56 years on the capital and non-capital counts and enhancements. (13 CT 3424-3428.) STATEMENTOF FACTS I. © GUILT PHASE: PROSECUTION CASE A. Automobile Burglary: June 21, 1997 On June 12, 1997,° off-duty Alameda County Deputy Sheriff Michael King and his family arrived at Anderson Park in Stockton to watch his son play baseball. (28 RT 5569-5571.) The park waslocated at the intersection of West Benjamin Holt Drive and El DoradoStreet. (28 RT 5560-5561, 5569.) King parked the family’s white Plymouth Voyager van about 20 to > All further date references in the Statement of Facts are to 1997; unless otherwise noted. 11 30 yards away from the baseball diamondin the field’s parking lot. Heleft the driver’s side window lowered about an inch and locked the van. (28 RT 5561-5562, 5572-5573.) WhenKing and his family returned to the van about two hourslater, he noticed the passenger side door was unlocked. (28 RT 5573-5574.) There were no signs of forced entry. However, King determinedthathis fanny pack, which containedhis fully loaded 40-caliber Glock service pistol, deputy badge, and identification card, was missing. His wife’s purse wasalso gone, which contained, amongother things, two checkbooks and other personal information. (28 RT 5564-5565, 5574, 5588-5590.) The gun’s magazine—also missing—contained hollow-point 40-caliber bullets. (28 RT 5581.) King flagged down Stockton Police Department Officer Michael Scofield and provided a report. (28 RT 5560-5561, 5569, 5576.) The next day, King contacted Scofield about two phonecalls the Kings received at home. Thefirst call was taken by King’s fourteen-year- old son. (28 RT 5578.) The secondcall King tookhimself. The male caller said, “Thank you for the fucking gun, you idiot.” The caller hung up. (28 RT 5566, 5577-5578, 5590.) The King’s telephone number was on their checks. (28 RT 5578.) B. Cal Spray Shooting: September 16 California Spray Dry (hereinafter “Cal Spray”) was a plant that handled raw materials from slaughterhouses and fish canneries and turned the materials into a dry protein supplement that was used in pet food and fertilizer. The plant was located in an isolated rural area on the outskirts of Stockton. (28 RT 5593-5595, 5650, 5693-5694; 29 RT 5748-5749.) ‘On September 16, Thomas Harrison, a Cal Spray employee, pulled up to the secured plant entrance around 3:20 to 3:30 a.m.to start his 4:00 a.m. shift. (28 RT 5664, 5700-5702.) Harrison’s co-worker, Timothy Steele, pulled up to the gate about the same time. (28 RT 5665, 5670, 5706-5707.) 12 As Steele pulled into the employee parkinglot, his headlights fell upon someoneleaning into the open passengerside doorof a blue pickup truck. There were items on the groundnearthe truck, but Steele did not think anything of it. Steele gathered his personal belongings and opened his driver’s side doorto exit the vehicle. (28 RT 5666-5669.) When Harrison droveinto the lot, he noticed that co-worker David Grimes’s pickup truck was vandalized; the windows were smashed,three tires were punctured andflat, as was the spare underthe bedofthe truck, and there wasa large dent to the passengerside of the cab. (28 RT 5707.) Harrison got out of his vehicle, walked up to Steele, and asked him if he saw the damage to Grimes’s truck. | (28 RT 5669, 5710-5711.) Steele looked around and noticed that most of the vehicles in the lot were vandalized. (28 RT 5669; 29 RT 5755, 5775, 5796, 5801, 5804, 5810, 5822-5823.) It was later determined that several of the damaged vehicles’ glove boxes were opened andrifled through, including Grimes’s truck. Missing from Grimes’s truck were binoculars, a flashlight, and a camera. (29 RT 5796-5797.) Harrison noticed the blue pickup truck was “smashed up.” (28 RT 5669, 5710-5711.) Thinking the man who wasat the blue pickup truck was the owner, Harrison walked toward him to ask him if he knew what happened. (28 RT 5671-5672, 5711.) When Harrison wasabout halfway to the blue pickup, he saw the man appearedto be holding speaker boxes. The man, whoHarrison later realized was appellant — a former co-worker at the plant— moved away from the truck andfired a large gun at Harrison twice. (28 RT 5712-5713, 5718-5719, 5724-5725, 5737.) Appellant had “a smile on his face”as he fired at Harrison from about 15 to 20 feet away. (28 RT 5672-5673, 5680, 5683, 5713, 5723.) Harrison panicked and went to the ground. (28 RT 5713-5715.) Appellant continued to shootat Harrison while he was on the ground. (28 RT 5713-5715.) Harrisonyelled 13 out, “‘Oh, my God. Heshot me. I can’t believe he shot me.” (28 RT 5673, 5680.) Harrison felt pain in his leg and pelvic bone. (28 RT 5724.) According to Steele, as appellant, who was wearing dark clothing, ran toward a hole in a nearby fence, he turned the gun toward Steele and fired at him twice. (28 RT 5660, 5674, 5713-5714.) Steele heard one bullet go by his head, which lodgedin a trailer behind him. (28 RT 5674-5675, 5681-5682, 5723.) Seeing Harrison wasin a great deal of pain, Steele retrieved Harrison’s cell phone and called 911. (28 RT 5676, 5721.) Medical personnel arrived and Harrison wastransported to the hospital where he remained for nine days. (28 RT 5596-5597, 5721.) He sustained 4 bullet woundto his upperright leg. (28 RT 5595.) The bullet went throughhis leg, hit the pelvic bone, and traveled up thesideofhisleg. (28 RT 5728-5729.) Harrison was in recovery for about six months after the shooting and had ongoing numbnessinhis right leg. (28 RT 5725- 5726.) Harrison described appellant as “a nice guy” and observed that they never had any problems with one another. (28 RT 5719, 5733.) Evidence technicians recovered seven 40-caliber shell casings from the scene. The casings were in two areas, separated by about90 feet. (32 RT 6600-6601.) Four of nine vehicles in the parking lot were vandalized. (28 RT 5626.) Harrison’s vehicle had a bullet hole near the front windshield. (28 RT 5602.) In a smaller covered portion of the parking lot, two of three vehicles were vandalized. (28 RT 5626.) Officers located a large pair of bolt cutters in one of the vandalized vehicles. (28 RT 5612- 5613.) Upon examiningthe area aroundthe plant property,officers also discovered a two-foot wide cut in the chain link fence that appeared freshly made. (28 RT 5613, 5632.) The shell casings were located about 147 feet from the cut in the fence. (28 RT 5616-5617, 5633.) Dried blood product, 14 which contained shoe prints, was strewn about the parking lot. (28 RT 5614-5615, 5637.) , The next day, on September 17, between 2:30 and 3:30 a.m., Cal Spray shift supervisor Michael Liebelt received a phonecall. The unidentified caller asked if “‘anyone had gotten wasted outthere last night?’” (29 RT 5758-5759.) Liebelt demanded to know whowascalling. There was“a deviouslittle giggle” and then the caller hung up. (29 RT - 5759.) Liebelt did not recognize the caller’s voice. (29 RT 5759-5760.) Gregory Beal, who hired and eventually fired appellant, also received a phonecall. The call was to Beal’s home around midnight, a few hours before the shooting. The male caller said, “‘Greg, we have fire in one of our dryers.’” Beal did not recognize the caller’s voice because he was “half asleep” at the time, but he believed it was someone who knew the proceduresat the plant. (30 RT 6133-6136, 6140-6141.) Beal rushed out to the plant and discovered there was no fire. (30 RT 6136-6137.) He turned around and hurried home because he was concerned that someone may have tricked him into leaving his home for some nefarious purpose. (30 RT 6137.) Beal explained that his home phone numberwasunlisted, but employees had accessto the number. (30 RT 6139.) Cal Spray employees provided details about the plant andits surroundings. The plant machines, located about 150 yards from the parking lot, were very noisy and employees were required to wear earplugs. (28 RT 5655-5656, 5658.) It was impossible to hear anything when inside the plant while the large drying machines were operating. (29 RT 5749.) The smaller covered parking lot was near the business office and used only by managementpersonnel. Althoughthe plant operated 24 hours every day, the business office closed at normal business hours. (28 RT 5655, 5658- 5659, 5690.) The smaller portion of the lot was well-lit, but not the larger 15 part. (28 RT 5660-5661; 29 RT 5756.) The hole in the chain link fence led to a large openfield on theeast side of the parking lot. (28 RT 5660.) Liebelt, who trained appellant, explained that appellant started out as a good employee, but that repeated mistakes resulted in his eventualfiring. (29 RT5762-5770; 30 RT 6132.) Liebelt observed that appellant changed over time and became“very edgy”and “alittle weird.” (29 RT 5763, 5770.) However, appellant’s erratic behaviorstarted soonafter he washired in 1994, (29 RT 5781-5786.) Beal explained that he wrote up appellant several times for mistakes. Appellant reacted by becoming angry at himself. Toward the end of appellant’s employment, Beal and Liebelt noticed appellant outside the plant, walking in circles, and seemingly yelling at the sky or cursing himself. Eventually, appellant was fired. He took it personally and said it was not right. (29 RT 5787-5788; 30 RT 6144-6147, 6151.) C. Bank of the West Robbery: October 24 On October 24, Jason Tunquist was working as teller at the Bank of the West in Stockton. (29 RT 5826-5827.) It was a busy Friday. (29 RT 5827-5828.) Sometime between 3:30 and 4:30 that afternoon, a man,later identified as appellant, walked up to Tunquist’s teller station and placed a note before Tunquist on the counter. (29 RT 5828, 5850.) The note read something to the effect of, “‘Give meall your 10s, 20s, 50s, and 100s and no one will get shot.” (29 RT 5829.) Initially, Tunquist was skeptical until he looked up and saw appellant pull out a gun, cock it, and aim it at Tunquist. (29 RT 5829-5830, 5857.) Tunquist grabbed a stack ofbills from his drawer and placed them on the counter. There were no 50s among them because Tunquist did not have any in his drawer. Appellant took the moneyand ran outofthe bank like a “gazelle.” (29 RT 5830-5832, 5843.) Tunquist’s supervisors later determined that appellant stole $900. (29 RT 5834, 5861.) 16 Tunquist observed that appellant wore a ball cap, wire-rimmedglasses with dark lenses, and a partially zipped jacket. (29 RT 5833, 5839-5840, 5868.) The description Tunquist gave police was of a male about five feet seven inchesin height, about 150 pounds, 45 or 50 years old, and with a “weathered” look. (29 RT 5834, 5841, 5864.) Tunquist also observedthat appellant had a “nervous twitch;”his chin protruded forward sporadically while he was waiting for Tunquist to get the money. (29 RT 5833, 5859.) Tunquist identified appellant as the robber about a month later in November whenhe saw appellant’s photo in a newspaperarticle. Tunquist waspreviously unable to identify the robber from a police photo line-up. (29 RT 5835-5836.) D. Eight Mile Road Murder: October 29 On October 29, at about 3:48 a.m., San Joaquin County Sheriff’s Deputy Kenneth Bassett was on routine patrol with his partner Deputy Bil] Gardner. (29 RT 5877-5878.) They were traveling west on Eight Mile Road, about one-quarter of a mile from the Interstate 5 overpass near Stockton. The area was desolate and rural. (29 RT 5878-5781, 5933.) The deputies noticed a Charter Way Towtruck parked on the south side ofthe road, pointed in an easterly direction. The truck’s front and rear lights were on and the engine was running. (29 RT 5882-5883, 5895, 5932.) Bassett thought it strange that no one wasin the truck. (29 RT 5883.) There were no other vehicles in the area. (29 RT 5884.) After they pulled in behind the truck, Gardner got out and walked up to the truck. He called back to Bassett that there was no one inside. (29 RT 5884.) A few secondslater, Gardner yelled out, ““He’s underthe truck.’” (29 RT 5884-5885.) Initially, Gardner believed the man,later identified as James Loper, was pinned underneath the truck. Loper waslying on his stomach and unresponsive. The deputies called for an ambulance. (29 RT 5884-5885.) | 17 Using a flashlight to illuminate the area aroundthetruck, Bassett located nine expended gun cartridges that appeared to be 40-caliber. They were on the driver’s side ofthe truck. (29 RT 5885-5886, 5892, 5902.) The position of the cartridges suggested to Bassett that the shooter fired numerous roundsat Loper after Loper sought shelter under the truck. (29 RT 5909-5910.) Bassett also observed, based on the pattern of the tire tracks, that Loper had made a u-turn in front of another vehicle and backed up. (29 RT 5903.) The tire patterns also suggested the other vehicle accelerated rapidly whenit left the scene. (29 RT 5909-5910, 5921-5924.) Given the circumstances, the deputies called for back-up. (29 RT 5886-5887, 5907.) When medical personnelarrived, they removed Loper from under the tow truck. Bassett observed blood on Loper’s face and in the spot where he was lying. Healso noticed a bullet strike on the underside of the truck. (29 RT 5888, 5893.) San Joaquin County Sheriff's Office Homicide Detective Antonio Cruz responded to the scene—now a suspected homicide—and tookover the investigation with his partner Detective John Huber. (29 RT 5915- 5917.) Shell casings were located in two separate groupings. The casings wereall within a diameter of 25 to 30 feet of the truck. (30 RT 6079.) Also, investigators found two bullet fragments under the truck and another about 84 feet down the road. (29 RT 5925-5927.) There werea pair of leather gloves near the passengerside ofthe truck and a pair of cloth gloves underneath the truck. (29 RT 5928.) Cigarette butts were located toward the rear of the truck along with two or three boot or shoe prints. A pair of blood-stained glasses and a lighter were recovered from underneath the truck. (29 RT 5834-5835, 5928-5929, 5938-5939; 30 RT 6065, 6081.) On a seat inside the truck, investigators found a clipboard with paperwork attached. The writing on the top sheet said, “Eight mile. w/I-5, black 18 Mazda 626, 1647 South Airport.” (29 RT 5938; 30 RT 6064-6065, 6067.) Blood waspresent on the driver’s side of truck. (29 RT 5935.) No weapons were found. (29 RT 5930.) Doctor Sally Fitterer, forensic pathologist, conducted Loper’s autopsy on October 29. (30 RT 5984.) Loper’s body had 10 gunshot wounds,all of which were sustained while he was alive. (30 RT 6003-6005, 6007, 6056.) However, by the time medical personnel removed him from underthe truck, Loper was dead. (30 RT 6051-6054.) The wounds were as follows: one to Loper’s left thigh that fractured his left femur (thigh bone) and which would have madeit impossible for Loperto walk (30 RT 6008-6010, 6019, 6027-6028, 6057); one to the outside of the left forearm (30 RT 6011-6013); one to the lowerleft abdomen that passed through the left kidney and fractured a rib (30 RT 6013-6015); one to the left side of the chest that fractured a rib, passed through the small bowel, and lodged in the abdomen(30 RT 6015-6016); one to the left upper arm, which exited the arm and re-entered Loper’s left upper chest fracturing the left humerus (upper arm bone) anda rib before passing through the pancreas, small bowel, andliver (30 RT 6016-6021); one to the upperleft arm, which passed through the left humerus,left chest, andribs, before perforating Loper’s left lung, aorta, and right lung (30 RT 6020-6022); one superficial woundto his left flank (30 RT 6023); one superficial wound that passed through Loper’s right side (30 RT 6023- 6024); two superficial woundsto the left side of the chest that were atypical entry-exit-reentry wounds (30 RT 6034); and one woundto the upperleft chest that traveled through the chest, entered the left arm, went through the left chest muscle above the breast, and through Loper’s left armpit (30 RT 6035-6037). Four bullets were recovered from Loper’s body and one from his belt. (30 RT 6029, 6038-6039.) Loper died as a result of the gunshot woundsto his abdomen, which caused him to bleed to death; most likely, in 19 a matter of minutes. (30 RT 6028-6029, 6058.) The shots were primarily fired from a range ofat least 18 inches to 2 feet away. (See generally 30 RT 6008-6037.) Loper also had fresh abrasions on his face and hands, which were sustained when he wasalive. (30 RT 6051-6053.) Mary Kuwabara wasa telephone answering service operator for Charter Way Tow. She was working the midnight to 8:00 a.m. shift on October 29. (30 RT 6089-6090.) Around 2:50 a.m., Kuwabara received a call from a man whoidentified himself as “Jason Lee” and said he was on Eight Mile Road, west of I-5, and needed a tow to 1647 South Airport, which wasa long distance from Eight Mile Road. The caller described his vehicle as a black Mazda and said he was willing to pay cash. He provided a call-back number. There was nothing unusual about the man’s voice or demeanor. There were no objective indications that he was intoxicated. (30 RT 6096-98, 6108-6109.) Three drivers from the tow companywere oncall at the time. Loper was second onthe list. He was dispatched to the Eight Mile Roadcall becausethe first driver on the list had been dispatched to an earlier call that came in at 2:28 a.m. (30 RT 6092-6093, 6098, 6104.) The male caller identified himself as “Doug Stone” and specifically requested a slide-back tow truck. (30 RT 6104.) Ofthe three drivers on call, only Loper did not have a slide-back truck. (30 RT 6105.) The man saidthat he was calling from a pay phone. He described his vehicle as a 1996 green Bronco and said that he needed a tow to Manteca. He provided a home phone number and specified that he would pay with cash ora credit card. (30 RT 6105- 6106.) Kuwabara dispatchedthe first driver to the French Campexit on Highway 99 south of Stockton. This location wasat the opposite end of Stockton and from the Eight Mile Road location. (30 RT 6099-6100.) The locations implicated in the two phonecalls represented about 14 square 20 miles. (30 RT 6125-6127.) Kuwabara observed that the voice onthefirst call sounded different from the second. (30 RT 6119.) At 3:30 a.m., James Loper called in to Kuwabara and reported that he was on scene. (30 RT 6100, 6111.) At 3:53 a.m., sheriff’s deputies called Kuwabara and asked her to contact the tow company’s owner. (30 RT 6123-6124.) Rodney Dove,’ who owned Charter Way Tow with his wife Sandi, went out to the murder scene. Based on his observations, it appeared that Loper had backedhis truck up to the car that was to be towed. (32 RT 6540-6542.) Rodney explained that drivers were paid by commission oncalls they made. The mostlucrative calls were individuals calling off the street and paying cash. The longer the drive for the tow truck driver, the more money they made. Thecall that Loper responded to—from Eight Mile Roadto South Airport—would bea lucrative call, as would the first dispatch from French Campto Lathrop. (32 RT 6537-6539.) According to Rodney and Sandi, appellant started working at the company in June. (32 RT 6545, 6576.) During appellant’s employment, they garnished appellant’s wages for some minoraccidents. This was customary when tow drivers wereat fault. (32 RT 6563-6565, 6577.) Appellant did not protest the first two garnishments, but he did object to the third one. (32 RT 6587-6588.) Appellant was suspended on October 6 becausehe failed a drug test. After 30 days, appellant could retest and,if he was clean, resumehis duties. (32 RT 6548-6549, 6581.) Typically, * In citing to the testimony of individuals who share the same surname, respondentrefers to them bytheir first names to avoid confusion. No disrespect is intended. 21 employees are drug-tested before being hired and then tested one time each year thereafter. (32 RT 6545-6546.) Rodney wasnot aware of any hostility or animosity that existed between appellant and Loperor, for that matter, between appellant and himself. (32 RT 6551-6552.) Although, Rodneyrecalled that appellant was unhappy when he madeappellant take an Oakland Raiders sticker off the company-ownedtow truck, which appellant drove. Appellant was also upset when he was suspended. (32 RT 6558-6559.) The day-after Loper’s murder, appellant called the company and spoke to Sandi. Appellant said that he was sorry about Loper’s death and said that Loper was a “‘good guy.’” Knowing the Doves were shorthanded, appellant asked Sandi if they wanted appellant to come back to work sooner. She declined appellant’s offer telling him that he had to wait the allotted 30 days andthen retest. In Sandi’s estimation, there was nothing unusual | about the phonecall. In fact, she thought appellant kind to call. (32 RT 6582.) However, after appellant’s arrest, Sandi informed police ofthe call. (32 RT 6583.) E. Mayfair Liquors Murder: November4 On November4, at about 7:33 a.m., Stockton Police Department Officer Emest Alverson responded to Mayfair Liquors store, near Anderson Park in Stockton, on the report of shots fired. (31 RT 6178-6179, 6188.) Whenhearrived, Alverson saw a man lying in the parking lot about 25 feet from the store entrance. The man,later identified as Stephen Chacko, was bleeding and appearedlifeless. There was a group ofpeople standing nearby. (31 RT 6180, 6184.) | Alverson andhis partner, Officer Bowen, wentinside thestore. Stockton Police Department Detective Jeff Coon later joined the officers. There were broken items and heavy concentrations of blood throughoutthe store. A trail of blood led from one ofthe aisles to the front door and 22 outside into the parking lot. In the lot, there was a broken pair of eyeglasses with blood on them. There wasa bullet hole in the cooler where sodas were stored, and one in the window nearthe front door. The cash register also had gunshot damage and there were spent 40-caliber cartridges inside and outside the store. (31 RT 6181, 6185, 6191, 6204-6206.) There was a chain link fence that surroundedthe store. Coon observed that a hole had been cut at the bottom ofthe fence, adjacent to the rear of the store, which was large enough for a person to crawl through. (31 RT 6207-6210.) There was also a boarded-up fence in this area with one slat unhinged. (31 RT 6210.) Witnesses told Coon they saw someone run toward the fence area. (31 RT 6212.) Investigators recovered 19 bullet fragments, 14 shell casings, and one live round from the scene. (32 RT 6353.) One of the casings was located outside the store, about six feet from the entrance. (32 RT 6356.) trail of eight pennies led from the front of the store around to the end of the shopping center. (31 RT 6294.) Crime scene analysis experts determined there were 12 separate firings of the murder weaponinside the store. (See generally 31 RT 6234-6253.) Investigators recovered video footage from a security camera inside the store. The video wasplayed for the jury. (32 RT 6372; People’s Exh. No. 400.) The store opened at 7:00 a.m. The robbery and murder occurred about 20 minutes into the footage, after the first two customers of the day left the store. (31 RT 6203-6204; 32 RT 6370-6371.) Stephen Chacko was seen in the video standing in one ofthe store’s aisles. Appellant wasalso visible in the video and could be seen with his arm extended. (32 RT 6377- 6378.) At another point in the footage, appellant was standing behind the cash register looking into an open drawerofthe register. (32 RT 6378- 6379.) Next, appellant looked:past the register, moved to the left of the register, and extended his right arm slightly. It was unclear what appellant 23 was holding in his hand. A second individual could be seen in the frame but is not identifiable. (32 RT 6380-6381.) In the next frames, an individual was at the front doorway and then gone. (32 RT 6382.) Doctor Fitterer conducted Stephen Chacko’s autopsy. He sustained five gunshot wounds. One bullet entered the left side of his chest and traveled along the outer surface of the chest wall. (32 RT 6333-6335.) Another entered the left shoulder, passed through the ribs, perforated Chacko’s left lung, passed through his ribs again, and exited the chest cavity and back. (32 RT 6336-6338.) One bullet entered the right side of Chacko’s body below the armpit, passed through his ribs, perforated his right lung, traveled through the pericardium (heart sac), grazed the right atrial and ventricular chambers, went through the wall separating the chambers and throughtheleft ventricle, proceeded throughthe left lung and ribs, fracturing a rib, and then exited the armpit area. This wound wasfatal. (32 RT 6338-6340, 6345, 6351.) Another bullet entered the left buttock and exited Chacko’sleft side near the hip. (32 RT 6340-6341.) One bullet struck Chackoin the right buttock and right hip area. (32 RT 6341.) Detective Coon explained that after the Mayfair Liquors robbery and murder, he had a hunchthat the crime was connected to the Eight Mile Road murderbased on the shell casings and weapon used. (32 RT 6387- 6392.) Also, the subject on the Mayfair Liquors video lookedlike the subject on the Bank of the West video, which investigators had also reviewed. (32 RT 6386-6387.) | F. Village Oaks Market Murders: November11 Deputy Sheriff Charles Locke was on patrol on the morning of November11, around 9:55, when he was dispatched to the Village Oaks Market at 6222 Harrisburg Place in Stockton on the report of gunshotsfired and twoindividuals injured. (32 RT 6398-6399, 6403.) When Locke 24 arrived, two civilians directed him inside the store and said there were people inside who werehurt. (32 RT 6400.) Because he wasthefirst officer on the scene, Locke drew his gun and “entered the store. He saw trail of coins going from store aisle and extending to about five feet outside the front door. (32 RT 6401, 6420.) Inside, there were a man and woman, who were “clinging to each other.” The woman wason the phonetalking rapidly in Chinese. Locke couldtell from her voice that she was stressed and concerned. The manpointed to the cash register area. Locke looked and saw whathefirst thought was a “bundle of clothes.” However, upon further inspection, Locke saw a female, later identified as Besun Yu, in a crouchedposition up against the counter. (32 RT 6401, 6408, 6411.) Locke explained that she was “in a real tight position” with “[h]er arms around her knees” and her head bent forward as if hiding herself. There were no obvioussigns of injury, but Yu was unresponsive. (32 RT 6408-6410.) Locke pulled the woman out from behind the register and began administering CPR because she had a very weak pulse. (32 RT 6402, 6410.) Lockealso saw a male, later identified as Jun Gao, face down in a prone position with a large pool of blood near his head. (32 RT 6402, 6410, 6413.) Locke surmised there had been “somesort of impact” behind the man’s left ear and there were what appearedto be teeth scattered near Gao. (32 RT 6410.) Upon closer inspection, Locke saw that Gao had a bullet exit wound near his mouth. (32 RT 6411.) Locke further observed a pair of shoes, a pair of glasses, and 40- caliber shell casings near a cash register. (32 RT 6414.) It appeared the other cash register had been forcibly removed from one of the two work stations. (32 RT 6415, 6421-6424.) There wasa safe in the store’s office that was unlocked; inside wererolls of coins. (32 RT 6426-6427.) There were also two desksin the office. A purse was located in the drawer of one 25 of two desks. Inside the purse, wasabout $4,700 in cash. Additional cash was foundin the other desk’s drawers. (32 RT 6427.) Evidence technicians collected five shell casings, four expended bullets, and two bullet fragments at the scene. (32 RT 6450-6452.) Michael Giusto, an expert in forensic firearms examination and bullet trajectory analysis with the state Department of Justice, opined that the 40- caliber casings recovered at the scene were “mostlikely” fired from a Glock pistol. (33 RT 6692.) Giusto also explained that given the positions of the casings recovered around the counter area, and the manner in which a Glock ejects cartridges, Yu was likely shot while she was behind the counter, while the shooter—appellant—was in front of the counter. (33 RT 6695-6697.) | Doctor Fitterer performed the autopsy on Jun Gao. The 43-year-old man sustained a single perforating gunshot wound, which entered Gao’s left upper neck and exited through the mouth and right cheek. (33 RT | 6636-6640.) The bullet perforated Gao’s left jugular vein and carotidartery, went through his tongue, fractured his jaw, and knocked outhis bridge and teeth. (33 RT 6640-6641.) Fitterer opined that the bullet traveled from back to front, which suggested the possibility that appellant was behind and to the left of Gao whenhefired the gun. (33 RT 6644-6645.) Gao also had _premortem abrasions on his forehead and cheek, as wellas an internal brain injury that may have been dueto the blunt force of falling andhitting his head on the floor. (33 RT 6638-6639, 6646-6649, 6668.) Gao died from blood loss due to the bullet wound. (33 RT 6645.) Fitterer also performed the autopsy on 56-year-old Besun Yu. Yu suffered three gunshot wounds, two of which were to her back. (33 RT 6650-6653, 6674.) The remaining wound wasto Yu’s left thigh. (33 RT 6655-6656. ) As for the two woundsin Yu’s back, one bullet entered on the left side. It fractured her vertebral column and cut through Yu’s spinal 26 cord. The bullet then traveled into Yu’s right chest, went through her right lung, and fractured her right clavicle and rightfirst rib. (33 RT 6656-6657.) The other bullet entered the left side of Yu’s back a few inches lowerthan the other. It went through herleft shoulder blade, entered the left chest cavity, fractured ribs, passed through Yu’s left lung, and outherleft chest ‘cavity fracturing an additional rib. (33 RT 6658-6659.) The gunshot wound to Yu’s back, which severed her spinal cord was fatal becauseit caused Yu to go into spinal shock andlose a significant amount of blood. (33 RT 6659-6660.) In Fitterer’s opinion, Yu could have sustained one of the wounds while crouched down with her head tucked betweenherlegs. (33 RT 6662, 6672.) Steven Hobson, a Stockton resident, was driving on Highway 99 south through Stockton on November 11. He noticed a cashregister in the middle of the freewaysitting by the center divider. Other motorists were swerving to avoid the object. Hobson pulled over and movedthe register offthe freeway and into some bushes. It looked like a piece ofjunk that had fallen off someone’s vehicle. (32 RT 6467-6468, 6472, 6475.) The register’s drawer was missing andit had exposed wires. (32 RT 6473.) About two orthree hours later, Hobson’s son, who was with him when he found the register, saw on the newsthat the register was connected to a robbery-homicide. (32 RT 6469, 6474.) Hobson called the police and told them about the register discovery. (32 RT 6469.) Around this same time period, John Gareau, who lived on the outskirts of Stockton, was told by his stepdaughter that there was a cash register drawer and other related parts scattered on the street near their home. (32 RT 6509-6511.) Gareau went out and grabbedtheregister drawerby its cable and movedit off the street. His stepdaughter alerted police to the discovery. (32 RT 6511-6513.) Based on the comings and 27 goings of Gareau andhis stepdaughter that evening, the drawer wasleft sometime between 6:00 p.m. and 7:30 p.m. (32 RT 6511-6513.) A crimelab analyst determined that the register had been wiped of prints, but the cash register drawer did not appear to have been wiped down. (32 RT 6484-6486, 6519-6520.) G. Police Investigation and Appellant’s Arrest on November 12 Department of Justice analyst Michael Giusto examinedthe shell casings recovered from Cal Spray, Eight Mile Road, and Mayfair Liquors shootings. (33 RT 6705-6716.) He concludedthe cartridges found at Eight Mile Road and Mayfair Liquors linked the crimes. (33 RT 6717-6718.) Further, after examining the casings collected from the Village Oaks Market, Giusto determinedthat the bullets at each of these crime scenes were fired from the same gun. (33 RT 6719.) After responding to the Village Oaks Market on November11, Detective Coon received information about a suspect vehicle that may have been associated with the crime. It was a 1990s Nissan Stanza, four-door, dark gray, with primer or oxidation marks. (33 RT 6750-6751.) The next day, November 12, Stockton Police Department Officer Brian Swanson wason a special assignment looking for the suspect vehicle. (33 RT 6765-6766.) Shortly before | p.m., Swanson saw a vehicle in the parking lot at 230 West Benjamin Holt Drive—an apartment complex near several of the crime scenes—which matchedthe description. (33 RT 6767- 6768.) Swanson conducted a registration check of the vehicle’s license plate, which revealed the car was registered to Carol Peoples with appellant as a possible owner. (33 RT 6753-6754, 6769-6770.) Detective Coon recognized appellant’s name as person who had been terminated from Charter Way Tow. He told Swanson to stop and detain anyone that got in the car and drove away. (33 RT 6770.) Officers were 28 provided with a photo of appellantto aid in their surveillance of the apartment complex. (33 RT 6770-6771.) One of those officers saw a white male matching appellant’s description walk away from the apartment complex. (33 RT 6771.) Officer Swanson and otherofficers arrested appellant at 3:15 p.m. on November12. (33 RT 6754, 6750, 6772-6773, 6809, 6816.) Officers recovered the following items from a backpack appellant was carrying at the time of his arrest: a black nylon jacket, green knit gloves, a black baseball hat, a police scanner, and a radio call book, which contained various radio frequencies for police and fire personnel, including the Stockton Police Department. (33 RT 6774, 6799-6801.) The backpack also contained a blue folder with the handwritten words, “Biography of a Crime Spree.” (33 RT 6774.) Inside the folder were newspaperclippings about the crimes. Portions of the articles were highlighted. (33 RT 6774, 6798; 34 RT 6950-6953.) There was a note inside the folder, which read: Some ofthe inserts in this scrapbook were[] merely for the motive ofrevenge. Some wasto support my family when I was unemployed. Some of them started out to be one thing and turned into somethinga little more extreme. I have to admit I’ve always wanted to murder someone,andthe idea of a crime spree has appealed to me for some time now. Hence,the crimespree. I guess we will see whereit goes. [] I never thought the two people in the Village Oaks store would die. After all, I only shot them two times each. [] Ha ha. (33 RT 6797-6798; 34 RT 6949-6950; People’s Exh. No. 578.) Appellant’s wallet was also in his backpack. Inside the wallet, police found a Walmart receipt dated November4, at 2:04 p.m. with a list of items purchased. (34 RT 6930-6934.) There wasalso tally sheet with coin and bill amounts, which was dated November 11, 1997. (34 RT 6935.) In the front pocket of the backpack was a piece of paperthat listed Stockton businesses and locations with some accompanying notes. (34 RT 6937- 29 6938.) Also found in the backpack were: a California license plate, green knit gloves with silver duct tape on the fingers and back of the palm, an Oregon driver’s license in the name ofNathan Gelder, and checkbooksin Michael and Eva King’s names. (34 RT 6940-6945.) Appellant wasalso wearing a fanny packat the time ofhisarrest. Inside were a small pair of binoculars, a Swiss army-type knife, a mini MagLite flashlight, a buck-type knife in a holster with appellant’s initials, handcuffs, pepper spray, a Social Security card in the name of Justin Werner, a black nylon gun holster, and Michael King’s sheriff's badge and identification. (33 RT 6775, 6803-6805; 34 RT 6941, 6943.) The photo on King’s identification appeared to be that of appellant. (34 RT 6945-6946.) At the time ofhis arrest, appellant appeared “unkempt”and “slightly dirty,” with his clothes askew. He was quiet. However, there was nothing about appellant’s appearance or demeanorthat struck Officer Swanson as odd. (33 RT 6777, 6792.) Swanson, who hadtraining in drug recognition, did not observe any obvioussigns of intoxication or drug use, including methamphetamine. (33 RT 6777-6778, 6795.) There was nothing unusual about appellant during the 10-minute driveto the police station. (33 RT 6793, 6813.) Police subsequently obtained a search warrant for appellant’s residence. On the nightofhis arrest, police executed the warrant. (33 RT 6861-6862.) Among other items, they found a Stockton mapin the living room that had certain locations marked, including Mayfair Liquors and Village Oaks Market. There were other businesses highlighted on the map such as a liquor store and an electronics store. (33 RT 6867, 6883, 6885.) This map correlated with the list of businesses found in appellant’s backpack. (34 RT 6938-6939). A slim jim—typically used to getinto locked vehicles—wasfoundin the hall closet. (33 RT 6871.) Police also collected items from both bedrooms, including a baseball cap found under a 30 bed and items from a trunk. A bag in the trunk contained rolled and loose coins and license plates from other states. (33 RT 6872-6873, 6875-6876, 6882.) An eviction notice issued by appellant’s apartment complex on November4 wasalso found. (33 RT 6887.) Police discovered a note in the top drawerof a dresser in the master bedroom closet, which said: CWTCharter Way Tow. CanI help you? Dude, yeah, check this out. You and the poposare all fucked up about Jimbo. He was a punk. He was on dopelike the rest of your Charter Way drivers. Jimbo didn’t want to pay. That’s why he got capped. He wasn’t the goodie goodie everybody thought he was. So get it straight. (33 RT 6887-6888.) A Doctor Pepper sodabottle was found on the bathroom floor. (33 RT 6886.) There was no methamphetamine or methamphetamine-related paraphernalia found in appellant’s apartment, only three suspected marijuana seeds. (33 RT 6892-6893.) From a dumpster nearby appellant’s apartment, police found several newspaperclippings. Two concerned the Village Oaks Market. Portions of one ofthose articles were highlighted in pink. Another article showed _ police personnelat the scene of the Mayfair Liquors murder scene. (33 RT 6888-6890.) An empty Doctor Pepper bottle was also in the dumpster. (33 RT 6873, 6882.) Whenpolice initially went to appellant’s residence shortly after his arrest, they noticed bootprints in front of residence. This was significant because a certain type of boot print (Ariat brand boots) was found at the Eight Mile Road murder scene. (33 RT 6861-6863; 34 RT 6923-6926.) Whenpolice searched the residence, they found Ariat boots near the front door. (33 RT 6866.) The Ariat boots recovered from appellant’s apartment were similar to the bootprint pattern at Eight Mile Road and to those observed outside appellant’s apartment. (34 RT 6927-6928.) 31 Appellant’s apartment complex was very near to Anderson Park—the site of the King auto burglary in June, as well as Mayfair Liquors, and the Village Oaks Market. (33 RT 6755-6757.) H. Appellant’s Interview and Recovery of the Murder Weapon . Detectives Huber and Cooninterviewed appellant.” They met appellantat the police annex around 4:30 to 4:45 p.m., on November 12 after his arrest. (34 RT 6922, 6928-6929.) The interview lasted approximately 12 hours, including time taken for breaks. (34 RT 6929.) In Huber’s opinion, during the interview, appellant did not manifest any objective indications ofbeing under the influenceofnarcotics, including methamphetamine. However, he appeared sleepy and may have been withdrawing from the effects of narcotics use. Huber explained that he would have no idea if appellant used methamphetaminea day or two before the interview; even a urine sample would not be conclusive on that question. (34 RT 6947; 35 RT 7187-7189, 7228-7229.) Based on Huber’s experience, some of appellant’s behavior during the interview, such as rolling his eyes back or twitching, may have been an avoidance mechanism or a stress-related reaction to the interview. (35 RT 7216-7227.) These behaviors or reactions happened most frequently when appellant denied involvementin the crimes. (35 RT 7233.) Also, any signs of dehydration would not be unusual given the length of interview and the small amount of liquid appellant had to drink. (35 RT 7228.) Huber noted that appellant was missing the bottom portion of his dentures. (34 RT 6948; 35 RT 7236- 7237.) > Detective Huberrepresented the San Joaquin County Sheriff's Department and Detective Coon the Stockton Police Departmentsince the crimes involved county and city jurisdictions. 32 Appellant explained that he highlighted the portions of the newspaper accounts of the crimes because they were mistakes madebythepolice in their investigation. (34 RT 6953-6956.) For example, appellant’s handwritten note on one ofthe articles regarding the Village Oaks Market murders said: “In Village Oaks, the entire cash register was removed from the store, 11/11/97. Later that night, it was wiped clean ofprints and disposed of. It was thrown off of the overpass located south ofHammer Lane on Highway 99 southbound. This happened about 8:30 p.m.in the slow lane.” (34 RT 6956-6957.) Appellant told the detectives with regard to the November 4 Walmart receipt, that while he and his wife Carol wereat store, he left Carol to go and buy bullets in another part of the store. The shopping excursion took place after the murder of Stephen Chackoearlier that day. (34 RT 6959.) During Huber’s testimony, the videotapes of appellant’s interview were played for the jury, after the court’s special instructions. (34 RT 6957-6961, 6964-6969, 6983-6986, 6998-7004, 7092-7096, 7075-7080, 7092-7096.) In the first 9 or 10 hours of the interview, appellant denied involvementin the crimes over 200 times. It was not until the last hour of the interview,that appellant confessed his responsibility for the homicides and other crimes. (34 RT 6963.) Appellant drew a diagram showing where the murder weapon waslocated. (35 RT 7181.) The interview ended at approximately 4:30 a.m. on November 13. (34 RT 7089.) Huber recontacted appellantin jail later in the morning on November 13 because police officers were having difficulty finding the murder weapon. (34 RT 7089.) Huber asked appellant if he would show the detectives the exact location. Appellant agreed and accompanied two detectives to the area where the gun waslocated. (34 RT 7089-7090.) Later that morning, officers recovered a gray plastic bag from a vacant lot located about three blocks from appellant’s residence, which was 33 also approximately 75 to 100 feet from a school. (35 RT 7241-7243, 7262- 7263.) The plastic bag waspartially covered by aboutsix inches ofmud and dirt and was secured so that moisture could not penetrate. (35 RT 7245, 7251, 7262.) . Inside the bag, were a black leather pouch and a box of 40-caliber, fully jacketed, hollow-point bullets. (35 RT 7246.) These bullets were designed to make larger wound cavities. (37 RT 7608-7609.) The zippered pouch contained a handgun (People’s Exh. Nos. 622, 624), one rubber glove, six white envelopes, and an off-white piece of paper. (35 RT 7246- 7247.) The gun wasblack with a silverslide on top and held 15 hollow- point 40-caliber rounds in the magazine. (35 RT 7249, 7251.) A note on one of envelopesread, “Give meall the 100’s, 50’s, 20’s and 10’s. Makeit fast, and nobody will get shot.” (35 RT 7252.) | Although the weapon had beenaltered and the serial number under the barrel obliterated, the recovered weapon wasidentified as that which appellant stole from Deputy Sheriff Michael King’s vehicle in June. (37 RT 7605-7612, 7614-7617; People’s Exh. No. 622.) According to Michael Giusto, the prosecution’s firearms expert, the breech face on the gun wasalso scratched out. (33 RT 6725.) He noted that there was a difference in the breech faces ofthe cartridges recovered from the Eight Mile Road murder scene compared to those from Mayfair Liquors. This suggested a possible alteration to the gun between the shootings. (33 RT 6727-6730.) Giusto explained that sandpaper could be used to alter a gun’s breech face and doing so would make comparison of cartridges recovered from different crime scenes moredifficult. (33 RT 6731-6733.) Giusto test-fired the Glock and determined that it was operational. (33 RT 6724-6725.) Giusto determined that the cartridges recovered from the Village Oaks Market murder scene matchedthosetest-fired from the 34 Glock. (33 RT 6735-6736.) The gun could hold up to 16 cartridges, including one in the chamber. (33 RT 6723-6724.) On November 14, Detective Huber spoke with appellant once more. An audiotape ofthe brief interview was played for the jury. (34 RT 7090- 7091.) Among other areas of inquiry, Huber asked appellant if he made alterations to the weapon. Appellant admitted to sanding down the gun. (34 RT 7090-7091; People’s Exh. No. 663.) II. GUILT PHASE: DEFENSE CASE A. Lay Testimony Appellant’s mother, Loretta Peoples, told the jury that she was involved in a major car accident when she waseight and one-half months pregnant with appellant. (43 RT 8961-8962.) She delivered him two weekslater, without any complications. (43 RT 8962.) Yet, appellant was avery unhealthy baby. (43 RT 8963.) Loretta described a couple of mishaps appellant experienced when he was young. At four years old, he tripped andfell and hit the back of his head on a gate while at the zoo. Appellant received about 8 to 10 stitches to close the resulting injury. (43 RT 8964.) At 10 years of age, appellant wasplaying baseball in the yard when his youngerbrother threw a bat at him hitting him above the eye. Appellant needed aboutsix stitches. (43 RT 8965.) There were no complications from either incident. (43 RT 8966-8967.) Appellant’s father, Luther Peoples, testified to the history of alcoholism in his family, including his own battle with alcohol. There was also a history of alcoholism on Loretta’s side of the family. (45 RT 9217- 9220.) Convicted felon Michael Quigel testified that he sold appellant methamphetamine beginning in the spring of 1997 while they lived in the 35 same apartment complex at 290 West Benjamin Holt Drive in Stockton. (37 RT 7652, 7703.) Quigel previously sold methamphetamine to appellant’s wife Carol. (37 RT 7626-7627.) Appellant typically purchased $30 worth of the drug at a time, which was approximately 1.75 grams. Quigel recalled three or four such purchases by appellant. (37 RT 7628, 7632.) While Quigel wasliving at the apartment complex, he saw appellant on a daily basis. Appellant always looked “jittery.” Appellant’s movements were fast, he was sweaty, his face was oily, and his eyes were “real pinned and big.” Quigel further observed that appellant was “always wired,” often movinghislips in a circular motion and expelling his tongue. (37 RT 7629-7630.) Appellant was “quiet,” “kept to himself,” and never bothered anyone. Quigel never saw appellant consumealcohol. (37 RT 7633.) In Quigel’s opinion, appellant was a good father and a better parent than Carol. He never saw appellant behave violently toward his family or anyoneelse. (37 RT 7640-7641.) Quigel could not believe it when appellant was arrested for murder. (37 RT 7641.) Quigel saw appellant on the morning of the Village Oaks Market murders. (37 RT 7633-7634.) Appellant was in his car when Quigel pulled up. Quigel saw that appellant’s skin looked oily, his eyes “were realbig,” and he seemed“paranoid andreal crazy looking.” Appellant appeared “real skinny” and exhausted. Quigel had sold appellant $30 worth of methamphetamine two days before appellant’s arrest, but hedid not see appellant use the methamphetamine. Quigel also observeda cashregister in the front seat of appellant’s car. (37 RT 7634-7636, 7712, 7648.) Quigel waved to appellant four or five times, but appellant did not acknowledge Quigel at first. (37 RT 7635-7636.) On August 28, 1998, Quigel provided a statement to District Attorney . Investigator Pete Rosenquist. (37 RT 7644-7645.) At the time, Quigel was 36 on felony probation for robbery. (37 RT 7694.) Quigel lied to Rosenquist and said that he did not sell drugs to appellant. 37 RT 7645-7648, 7661, 7695.) Quigel never told Rosenquist that appellant looked crazy or appeared underthe influence the day he saw him with the cash register. (37 _ RT 7655.) Nor did Quigel mention that appellant was always jittery or wired. (37 RT 7658.) Quigel contended his omissions resulted from Rosenquist’s failure to ask specific questions. (37 RT 7659, 7700.) Quigel contacted the District Attorney in March 1999 in an attempt to secure sometype of leniency. That was because Quigel had a burglary charge pending and a related felony probation violation, which carried the potential for a six-year sentence. In fact, this was the second time Quigel raised the possibility of a deal whereby he offered to provide information about appellant in exchangefor leniency on his pending case. Representing the District Attorney’s Office, Rosenquist told Quigel there would be no deals. (37 RT 7660-7661, 7704, 7706.) At this meeting, Quigel said that he sold appellant $30 worth of methamphetaminebefore the Village Oaks Market murders. (37 RT 7645-7648, 7661, 7695.) Quigel did not mention that appellant looked sweaty, oily, or jittery on the morning of the Village Oaks Market murders. (37 RT 7662, 7715, 7717.) That morning, was the only time that Quigel noticed appellant had a crazy look about him. (37 RT 7728-7729.) It was not until April 1999—shortly before trial was to begin—that Quigel told defense investigator Michael Kale that appellant was always wired from methamphetamine use. (37 RT 7664-7667.) Quigel said he shared the information because Kale asked him specific questions about appellant’s appearance. (37 RT 7710; 38 RT 7859-7862.) Kale testified that Quigel “may have” disclosed that he was not a fan ofthe police, but Kale had no specific recollection about asking Quigel what his attitude was toward law enforcement. (38 RT 7867, 7870.) 37 Michael Jack lived in Stockton and wasnear the Village Oaks Market around 9:30 to 9:45 the morning of the murders there, waiting to use the pay phoneoutsidethe store. (37 RT 7731, 7745.) Appellant was on the phone and “looked like he was having a conversation.” (37 RT 7732.) In Jack’s opinion, appellant looked a little “sucked up”andlike he had not slept. (37 RT 7732.) Jack further described appellant as looking “alittle unshaven,” “rough,” “ratty” (37 RT 7734), and “wild looking” (37 RT 7740). Appellant appeared as if he had been using methamphetamine “crank”). Jack’s observations were based on his own experience with the drug, although he was not using methamphetamine atthe time he saw appellant on the phone. (37 RT 7732.) Jack also noticed that a car outside thestore, which he assumed belonged to appellant, was parked oddly—at an angle across the parking space lines with the passenger door open. (37 RT 7734-7735.) Jack described the car as Nissan or Datsun, which had a primer spot on one of the doors. (37 RT 7735.) Jack waited a few minutes while appellant was on the payphone. Then, Jack went inside the store to buy cigarettes for a minor. (37 RT 7737, 7747.) When Jack cameoutofthe store, appellant wasstill on the phone. So, Jack got on his bicycle and left. (37 RT 7737.) Whenpolice interviewed Jack after the murders, he wasinitially hesitant to talk them about his observations of appellant because Jack had purchased cigarettes for a child. (37 RT 7737-7738.) When police contacted Jack a second time, he was moreforthright. (37 RT 7738.) At the time that investigators first spoke to Jack, it was clear to him that the police were concerned about apprehending the perpetrator. Nonetheless, when Jack provided a detailed description of appellant, he 38 never mentioned that the man at the phone was a “crankster.”* In fact, Jack described appellant as a clean-shaven white male adult, 35-40 years old, with a thin build and dark hair. (37 RT 7750, 7752.) Jack did nottell police investigators that appellant had wild-looking hair or that he appeared rough or ratty looking. (37 RT 7755-7756.) Jack also described appellant’s car differently from his court testimony and heinitially reported that he saw appellant in a car, not at a payphone. (37 RT 7753-7754; 38 RT 7868.) Joni Fitzsimmonslived in the same Stockton apartment complex as appellant and his family. Fitzsimmonsfirst met Carol, appellant’s wife,at the pool with their children in the summer of 1997. (37 RT 7766-7768.) Fitzsimmons, Carol, and appellant did methamphetamine almost daily. (37 RT 7770-7771.) Appellant sometimes becameirritable and withdrawnafter using the drug. (38 RT 7797-7798.) During these times, he would work on his bicycle. (38 RT 7797-7798.) Despite appellant’s near-daily use of methamphetamine, he was a good father to his children—Matthew and Lindsey—and he “‘acted normal.’” (37 RT 7773; 38 RT 7821, 7833.) At the time, appellant was working at Charter Way Tow. (38 RT 7800.) When appellant was suspended from the company, he was angry. (38 RT 7802-7803, 7835.) After that, arguments between appellant and Carol ensued. (38 RT 7803.) Despite appellant’s irritability and anger, he was never violent. (37 RT 7773-7774; 38 RT 7806.) Fitzsimmons observed that Carol had a temper, which she would often vent at appellant. Carol also demeanedappellant. (38 RT 7804.) Carol and appellant were experiencing financial pressures. When appellant lost his job, Carol yelled at him to get a new job. (38 RT 7813.) ° “Crank”is slang for methamphetamine. (http://www.urbandictionary.com/define.php?term=crank (as of October 5, 2011).) 39 Appellantcontrolled the family funds and when Carol needed money, she had to ask appellant. This was a point of contention. The couple argued about moneyoften, including after appellant’s pay from the tow company was docked for an accident. (38 RT 7812, 7823-7824, 7830.) At times, Carol would get drugs on credit and she and Fitzsimmons would exhaust the supply, which would make appellant very upset. (38 RT 7831.) However, Fitzsimmons was not aware of any conduct on Carol’s part, which suggested that she condoned or otherwise was complicit in appellant’s decision to commit any of the crimes in light of financial pressures. (38 RT 7843-7848.) Fitzsimmonsdid notnotice anything unusual about appellant’s behavior during September and October, although he became “snappy” every once in a while. (38 RT 7816-7821.) However, during the last two weeks of October, Fitzsimmons saw appellant and Carol muchless. (38 RT 7821.) In the two-weekperiod before his arrest, appellant did not shave or get his hair cut. He was not eating and his cheeks were suckedin andhis clothes were dirty. (38 RT 7829.) Aroundthis time, appellant and Carol were on the verge of being evicted. (38 RT 7832.) Appellant spent time with Fitzsimmons’s children. (38 RT 7805.) Fitzsimmons entrusted them to appellant’s care when he was under the influence of methamphetamine. (38 RT 7824-7825.) However, after Carol showed Fitzsimmonsa gun in a black pouchthat she found in their apartment, Fitzsimmons became upset knowing that her own son spent time in the apartment. After that discovery, Fitzsimmons stoppedletting her son go to appellant and Carol’s apartment alone. (38 RT 7852-7855.) Following the murders, Fitzsimmons provided numerousstatements to the police and to a defense investigator. (38 RT 7814.) She lied about a numberofthings, including telling the police that she never saw appellant use drugs. (38 RT 7815.) Defense investigator Kale testified that 40 Fitzsimmonswasinitially reluctant to talk and denied any drug use. (38 RT 7862-7863.) | Appellant’s wife Carol testified on his behalf. She and appellant had been married for seven years. (38 RT 7884-7885.) They had two children—Matthew and Lindsey. Matthew was Carol’s child from a previousrelationship and was 14 years old at the time oftrial. (38 RT 7885.) Appellant and Carol started using drugs together when they metin the summerof 1988. (38 RT 7885-7886.) They both favored methamphetamine and appellant also indulged in marijuana. (38 RT 7886.) Whenappellant was doing drugs, oftentimes he would stay up late and not come to bed. This was dueto the effects of the drugs; they caused | sleeplessness. (38 RT 7895-7896, 7898.) The couple used drugs continuously, except for the time they movedto Florida in July 1991 to get away from the local drug culture in Stockton. However, they returned to Stockton in March of 1993 because of problems they were having with appellant’s family there. When they returned, they fell back into using drugs. (38 RT 7887-7888.) Appellant was a good husband and wasneverviolent with Carol. She had no problem letting appellant care for their children during the time that he was using methamphetamine. (38 RT 7894-7895.) Appellant’s condition changed during the summerof 1997. He stopped eating and rarely slept. (38 RT 7889.) In Carol’s opinion, appellant’s physical condition changed dramatically beginning that summer and continued until his arrest in November. (38 RT 7890-7891.) However, Carol could not say how muchsleep appellant wasgetting in the last few months before his arrest. (38 RT 7896.) The couple had no income in September or October because appellant was not working. (38 RT 7907.) About three or four days before his arrest, 4] Carol and appellant fought abouta letter that she found that he had written to someone else. (38 RT 7893.) Carol had no involvementin appellant’s crimes. (38 RT 7897.) She knew of James Loper because appellant spoke about him. (38 RT 7899.) She recalled watching the news about Loper’s killing. It upset Carol because appellant worked for the same company. (38 RT 7899-7900.) Carol told police that when she and appellant were watching the news account regarding Loper’s death, appellant smiled and said something to the effect of “‘Weall die.”” (38 RT 7900-7901.) Carol was familiar with the Mayfair Liquors neighborhood store and knew Stephen Chacko. She often took Lindsey there to get ice cream. (38 RT 7901-7902.) Carol and appellantwere watching television when news of the shooting aired. Carol remarked aloud that she hoped the person killed was not the big guy—the oneshe liked (Chacko wasthe larger of the two men who workedatthe store). (38 RT 7902-7904.) Appellant told her that it was, in fact, the larger of the two men, which was noteworthy to Carol since that had yet to be revealed through newsaccounts. (38 RT 7904.) The morning of appellant’s arrest on November 12, appellant told Carol about his involvementin the string of crimes. (38 RT 7893.) Appellant explained to her how he lured Loper out to Eight Mile Road and that as soon as Lopergotoutof the truck, appellantjust started shooting. (38 RT 7905-7906.) Carol saw the murder weapon when, some months before, her son Matthew, then 12 years old, found the gun in the closet and brought it to Carol. She told appellant to get it out of the house. (38 RT 7907). When Carol first talked to police investigators, she lied for the first five hours of the interview because she wasscared and wastrying to protect her children. (38 RT 7906.) When Carol began to share the truth, she told 42 detectives that appellant had explainedto her that he was angry because he could not get the register at Mayfair Liquors to open and so he took the money from underneath the register. (38 RT 7908-7909.) Carol also revealed that appellant told her that he tried to erase the serial numbers on the gun. She recalled seeing appellant working on the gun even after she told him to get rid of it. She was upset because the gun wasstill in the apartment. (38 RT 7909-7910.) Carol also related that when she and appellant went shopping at Walmart in Lodi around the time of the murders, she recalled him leavingher in the store for a while. (38 RT 7911-7912.) Appellant never shared with Carol any of the moneythat he took during the robberies. (38 RT 7908.) | B. Expert Testimony Doctor Joseph Chong-Sang Wutestified as an expert in Positron Emission Tomography(hereinafter “PET”) scan brain imaging. (38 RT 7946-7949, 8034-8036.) Wu was a medical doctor and also an associate professor at the University of California Irvine Medical Center and the clinical director of the medical school’s brain imaging center. (38 RT 7946.) He was board-certified in psychiatry, but was not a neurologist or radiologist. (38 RT 8037.) Wu was asked by the defense to conduct a PET scan on appellant’s brain. A technician completed the scan on September 14, 1998. (38 RT 7946, 8048, 8053.) Wu explained that PET scan imagingis used to analyze activity and functioning inside the brain by measuring glucose metabolism. (38 RT 7978, 7987.) He acknowledged that some insurance companies consider PET scan imaging experimental and mostwill notcover the costs of the test. (38 RT 8054-8056.) Despite his background in psychiatry, Wu did not conduct a psychiatric evaluation of appellant or a diagnostic interview. (38 RT 8041- 8042.) He did not take an extensive background history. Nor did he read 43 the relevant crime reports or watch appellant’s interview with law enforcement. (38 RT 8042-8043.) ‘Wu explained that he was not asked to do anyofthese things or render final conclusion about appellant’s mental health. (38 RT 8043-8044.) Wu’s report was a “preliminary impression” and limited to three quarters of a page. (38 RT 8044.) Based onhis interpretation of the resulting data, Wu opined that appellant’s brain function was abnormal. (38 RT 8004.) Relative to a baseline or normalscan, appellant’s scan revealed a decrease in frontal lobe function, while the rear part of his brain showedincreased activity. (38 RT 8000-8003.) Wu explained that this pattern is commonly foundin certain conditions, including traumatic brain injury and high levels of substance abuse. (38 RT 8004.) In Wu’sopinion, injury to a person’s frontal lobe, such as that _ presented by appellant’s scan, impaired executive function or higher order thinking and judgment. (38 RT 8006.) Individuals with this kind of damage “will sometimes do inappropriate impulsive things.” (38 RT 8006- 8007.) However, Wuwasnot saying that individuals with orbital frontal lobe injuries had no ability to plan. (39 RT 8125.) Appellant’s abnormality wasin the limbic region, an areaofthe brain typically associated with regulation of aggression. (38 RT 8010.) Because of appellant’s brain defect, appellant was at a greater risk for poor judgment, which would be exacerbated under certain conditions, such as sleep deprivation or stimulant use. (38 RT 8012-8013.) Long-term stimulant use would adversely impacthis brain function and activity. (38 RT 8014.) However, appellant’s scan was not conducted while he waseither using stimulants or sleep deprived. (38 RT 8053, 8067.) Wu acknowledged that the scans would be affected if appellant was suffering from anxiety or depression. In fact, appellant’s thoughts could affect the scan results. (38 RT 8073-8075.) Wu did not believe that 44 appellant’s scan results were consistent with depression, although he could not rule it out. (38 RT 8079; 39 RT 8128-8129.) That was because frontal lobe dysfunction had been implicated in a numberofpsychiatric conditions. (39 RT 8211.) Wuestimated that 25 to 30 percent of the population had somehistory of psychiatric disorders, which would result in abnormal brain scans. (38 RT 8112.) He recognizedthat a psychiatric diagnostic evaluation of appellant would have been helpful to determine if appellant wassuffering from depression at the time of the scan. (39 RT 8246.) According to Wu, although the scan was conducted in September 1998, the results would likely have been the same aroundthe time of appellant’s crimes, absent an intervening event. (38 RT 8014-8015.) Further, if appellant was using stimulants and experiencing sleep deprivation at the time, the scan results would likely have revealed more pronounced abnormalities. (38 RT 8015.) While traumatic brain injury or long-term stimulant use could have been the cause of appellant’s brain abnormalities, Wu could not ascertain the actual reason. (38 RT 8008, 8017.) He was not privy to any medical records associated with a traumatic brain injury or any manifestations of childhood head trauma. (38 RT 8060- 8064.) Wuco-authored a study with Doctor Monte Buchsbaum (the Raine study), which used PET imaging to examine whether a connection existed between brain abnormalities and violence. (39 RT 8120-8122.) The subjects were 22 individuals, 20 of whom were murderers that pleaded not guilty by reason of insanity. To the extent that the findings indicated a connection between brain defects and violence, Wu acknowledgedthat the study results could notbe generalized to the population at large because the findings applied to a severely violent group who were legally insane. (39 RT 8122, 8209-8210.) Further studies were needed before generalizations could be madeto violent offenders in general. (39 RT 8210-8212.) 45 Although other peer-reviewed studies supported Wu’sview about a link between brain abnormalities and violence (the Volkow and Goyerstudies), the design of the studies differed significantly from one another as well as from the Raine study. (39 RT 8203-8209, 8222.) Wu further acknowledgedthat predicting violent behavior could not be done with scientific certainty. (39 RT 8123.) Wuwasnot well-acquainted with the facts of appellant’s crimes. (39 RT 8138-8148, 8151-8157.) He recognized that many of appellant’s individual acts in committing the crimes were not necessarily impulsive. (39 RT 8146, 8153.) However, Wu opined that appellant’s actions were consistent with having an impaired ability to understand what he was doing, appreciate the consequences, and inhibit his aggressive impulses. (39 RT 8159.) Wu’s conclusion that appellant’s crimes were the product of an impaired brain was not swayed by appellant’s 260-plus denials to detectives of his involvement, law enforcement’s post-arrest discovery of appellant’s highlighted map with crime locales, appellant’s writings in “Biography of a Crime Spree,” appellant’s highlighted inaccuracies in newspaper accounts of the crimes, and recovery ofthe altered murder weaponburied in waterproofplastic. (39 RT 8181-8193.) Wu clarified that he was not saying that appellant was incapable of planning. His opinion wasthat appellant’s overall conduct demonstrated a “profound lapse ofjudgment” during the crime spree. (39 RT 8236.) Wu concededthat not every criminal has brain damage and that criminal acts generally reflect poor judgment. However, he maintained that some criminal acts can have rational basis. (39 RT 8242-8243.) Doctor Daniel Amen, a medical doctor with specialties in brain imaging and psychiatry, testified as an expert in the area of the Single Photon Emission Computed Tomography(hereinafter “SPECT”) brain 46 imaging process. (40 RT 8263-8264, 8282.) While SPECT and PET imaging are nuclear-basedprocesses, they differ in that SPECT imaging measures blood flow activity in the brain, while PET imaging measures glucose (sugar) metabolism. (40 RT 8284.) Amen explained that SPECT imaging allowed for sophisticated evaluation of the medial temporal lobes, which are important in the biology of violent behavior. (40 RT 8286.) However, the scan wasa tool designed to be correlated with a clinical history of the patient. (40 RT 8379.) Amen did not do a psychiatric evaluation of appellant because he wasnot asked. (41 RT 8425.) Amen opined that, based on his experience, there was a correlation between substance abuse, impaired brain functioning, and violence. (40 RT 8298-8299.) However, he acknowledged there were few studies and no publishedarticles that supported his view linking substance abuse and violence and that his view wasnot necessarily widely held in the scientific community. (40 RT 8371-8372, 8367-8370.) Generally speaking,if a person used methamphetamine for 10 years, a scan would reflect an abnormal brain. The same wastrue if the person had a history of heavy drinking or smoking. (40 RT 8369-8370.) The defense retained Amen to do SPECTscans on appellant. (40 RT 8309.) Appellant was scanned three times: a baseline scan, a concentration scan in which appellant performed a focused task, and one for which appellant was provided Adderall (a legal stimulant), caffeine, and deprived of sleep so as to try and replicate his condition at the time of the offenses. (40 RT 8310-8311, 8319.) The baseline scan showedvery pooractivity in the prefrontal cortex area, which was abnormal. (40 RT 8313-8314, 8317.) The concentration scan showeda slight improvementin the inferior part of the prefrontal cortex, but it wasstill underactive, as were the temporal lobes, which wasalso abnormal. (40 RT 8314-8315, 8317.) The third scan revealed increased activity in the cingulate gyrus, whichis part of the 47 limbic system and in charge of emotions. (40 RT 8316.) In short, according to Amen, appellant’s brain was “very dysfunctional.” (40 RT 8321-8322.) From the scan results, Amen concluded that the combination of an underactive prefrontal cortex and overactive cingulate gyrus caused appellant to becomefixated on negative thoughts andhis brain was compromisedin its ability to manage these negative fixations. (40 RT 8324-8327.) Methamphetamine, caffeine, stress, and lack of sleep would only serve to worsen these issues. (40 RT 8329; 41 RT 8508-8509.) Asto the cause of appellant’s brain dysfunction, Amen could not be certain. It could be from a traumatic injury or substance abuse. (40 RT 8334-8337.) Amen opined that appellant’s case was similar to patients he had treated who had histories of substance abuse and werealleged to have committed violence. (40 RT 8337.) In Amen’sview,had appellant not been a methamphetamineuser, he would not have committed the crimes. (41 RT 8510.) Methamphetamine andstress triggered heightened overactivity in appellant’s cingulate gyrus, which, in turn, compromisedhis brain and caused him to go from onestate ofbehavior to another. (41 RT 8513.) Amen believed that appellant’s issues were treatable with medication. (40 RT 8390-8391.) Amen and Wucollaborated previously and had been in contact regarding appellant’s case. (40 RT 8357.) Amen explained that findings from PET and SPECTscans should be essentially the same. (40 RT 8358- 8359.) However, Wu’s view that PET imaging showedthat a normal brain would be moreactive in the rear portion andless so in the front portion conflicted with Amen’s view, based on SPECT scanning,that the front portion should be more active than the rear. (40 RT 8366.) Asfor the specific details of appellant’s crimes, Amen knewlittle. (40 RT 8409-8416.) Nonetheless, while he accepted that some of 48 appellant’s specific acts evinced planning, overall, the conductreflected “Srrational thought and fixation” and general poor planning. That was because appellant’s goal-oriented behavior in carrying out the crimes did notfit with positive life goals. (41 RT 8440, 8471-8472.) Amen acknowledgedthat a great deal of criminal conduct would be considered poor planning based on his view. (41 RT 8472, 8486.) Amen adhered to this view, despite appellant writing that he always wanted to murder someoneandthat the notion of a crime spree held appeal for him. Amen attributed these writings to appellant’s use of methamphetamine, which compromised his brain function at the time. (41 RT 8487-8490, 8496- 8497.) | Doctor Monte Buchsbaum testified as an expert in the area of nuclear imaging science. (41 RT 8541.) He worked at the Mount Sinai Medical Center in New York City where his practice was devotedto studies involving schizophrenia, autism, and aggressive impulse disorder. (41 RT 8526-8530.) Buchsbaum utilized PET scansin his practice and worked with Doctor Wu previously. (41 RT 8524-8530.) He was retained by the defense to review Wu’s PETscan of appellant. Buchsbaum wasalso familiar with SPECT scanning and Doctor Amen. Buchsbaum reviewed appellant’s SPECT scans and discussed the case with Amen. (41 RT 8546, 8551.) In Buchsbaum’s view, both Amen and Wu administered good scans. Hedid not think the scans were inconsistent with each other with respect to the levels of activity in the front and back of appellant’s brain. (41 RT 8552, 8554-8556.) Buchsbaum acknowledgedthat he did not review the scans of Wu’s control group members. (42 RT 8661.) Buchsbaum observedthat, in the PET scan, the frontal area of appellant’s brain was moreactive than the back. (41 RT 8551.) Relatively few people display this type of abnormality. (41 RT 8552.) Buchsbaum 49 concurred with Wu’s assessment regarding the abnormality in appellant’s frontal lobe area. (41 RT 8555.) Regarding Amen’s SPECTscans, Buchsbaum likewise concurred that the cingulate gyrus showed marked hyperactivity. (41 RT 8561.) | Buchsbaum explained thatif the planning or organizational function in the frontal lobes is decreased, then parts of the cingulate gyrus may be more active and vice versa. (41 RT 8557-8558.) If the limbic system (i.e., the cingulate gyrus) is out of sync with the prefrontal cortex,it could result in dysfunctional behavior because the person may be more directed by emotion than thought. (41 RT 8560-8561.) After reviewing appellant’s PET and SPECT scans, Buchsbaum concluded that appellant had a defect in the area of his prefrontal lobe, which could have beenthe result of head trauma, substance abuse, genetic depression, or schizoid personality disorder. (41 RT 8575-8576; 43 RT 8928-8929, 8939, 8941.) He concludedthatthe deficit had been present for some time. (41 RT 8575-8576.) Buchsbaum further opined that his conclusions were consistent with appellant’s conduct during the crime spree as well as his writings about the crimes. (41 RT 8578; 43 RT 8950- 99 66. 8954.) In short, appellant’s behavior was “bizarre,” “unusual,” and indicative of poor planning. (43 RT 8957-8958.) Buchsbaum recognized that while SPECT and PET scansare important tools in assessing disorders, a patient’s medical history and other relevant facts were very importantto have, as well. (43 RT 8933.) | Buchsbaum did not have the benefit of Magnetic Resonance Imaging (an MRD), a neurological exam,or appellant’s medical recordsto verify his conclusions, although a neurological exam would not have been necessary. (42 RT 8585-8587.) Buchsbaumstated that there were fouror five studies that utilized PET scanningin identifying a link between frontal lobe damage and 50 aggression, including the Raine study, which he co-authored. (42 RT 8606- 8607.) In the Raine study, Buchsbaum concludedthat individuals who were accused of murder tended to have lower values regarding frontal lobe activity, which impacted impulse control. (42 RT 8609-8610.) However, Buchsbaumrepeatedlyclarified that it was not possible to project the findings to the population at large and predict aggression. (42 RT 8610, 8614, 8709-8710; 43 RT 8921.) Researchers would need to study thousands of people to be able to generalize such an “unlikely finding” that frontal lobe damage leadsto individuals becoming murderers. (42 RT 8611.) The implication of the Raine study wasthat the frontal lobe was important to impulse control and that the frontal lobe would “probably” be defective in cases of murder and other impulsive acts. (42 RT 8611.) As for Amen’s conclusions about the functionality and activity of the cingulate gyrus, there were no studies that connected a hyperactive cingulate gyrus to aggression or violence. (43 RT 8893-8894.) Doctor George Woodstestified as an expert in psychiatry and addictionology (addiction medicine). (43 RT 9026-9027.) He wasretained by the defense in December 1997 to discern what role methamphetamine played in appellant’s criminal conductandlife in general. He met twice with appellant and reviewed numerous materials before testifying. (43 RT 9029-9030.) Yet, Woodsdid not make a diagnosis of appellant. (44 RT 9135-9136.) Woods explained that there was a connection between methamphetamine-related impairment and dysfunctional behavior, including violence. (43 RT 9037; 44 RT 9079.) Nonetheless, methamphetamine addiction did not invariably lead to aggression. (44 RT | 9138.) Someof the long-term effects of chronic methamphetamine use included paranoia, psychosis, agitation, weight loss, and hypervigilance. (43 RT 9042-9045; 44 RT 9071.) Typically, addiction took place over a 51 series of four stages. (44 RT 9071-9074.) Environmental and genetic factors contributed to addiction. (43 RT 9033-9035.) In Woods’s opinion, appellant’s appearance and demeanor,as described by others and as reflected in the crime reports, were consistent with the latter stages of addiction. (44 RT 9104, 9120-9124.) There was no indication of psychosis. (44 RT 9144-9145.) Having viewedthe tape of appellant’s interview with detectives, Woods believed that appellant exhibited manifestations of chronic drug use and signs of withdrawal. (44 RT 9110.) Woods’s interviews with appellant also confirmed a pattern of methamphetamine abuse. (44 RT 9125.) He reviewed appellant’s PET and SPECTscansandfelt they were consistent with chronic methamphetamine use and reflected the residual cumulative effects of drug use in terms of psychological and physical impairment. (44 RT 9116-9117.) Nonetheless, the scans could not predicta direct relationship between methamphetamine use and violence. (44 RT 9156-9157.) Woods’s opined that, considering appellant’s history of drug abuse,it had had been a matter of time before appellant became violent given his methamphetamine use. (44 RT 9080.) Woods acknowledgedthat, in reviewing the crime reports related to appellant’s arrest and searchofhis residence, no evidence associated with methamphetamine use was found. (44 RT 9149.) III. GUILT PHASE: PROSECUTION REBUTTAL Doctor Helen Mayberg was a board-certified neurologist with a primary focus on brain imaging research, PET scanning in particular. (45 RT 9222-9226.) Maybergtestified as an expert in the areas of neurology, PET scanning, andneuropsychiatry.” (45 RT 9263-9264.) In both a ’ Although the prosecutor asked that Doctor Mayberg be qualified as an expert in “SPECT”scanning,it is clear from the record that her expertise (continued...) 52 clinical and research capacity, she conducted approximately 350 SPECT scans and 2,000 PET scans during her career. (45 RT 9260-9261.) In preparation for her testimony, Mayberg reviewedcopies of the scans done by defense experts Amen and Wu,the crime reports, transcripts of Wu, Amen, Buchsbaum, and Woods’strial testimony, Wu’s control group sample,andall articles the defense experts referenced. (45 RT 9266- 9272.) Mayberg was familiar with Wu and his work because,like Wu, Mayberg did considerable work on depression and its effects on the brain. She wasalso familiar with Doctor Buchsbaum. Although Maybergdid not know Doctor Amen, she was familiar with his work. (45 RT 9272.) As a threshold matter, in Mayberg’s view, generally speaking, a patient diagnosis was required before a PET or SPECT scan was administered. (45 RT 9264.) In her view, a PET scan should not be undertaken based only on a lawyer’s referral because it was a medical procedure. (45 RT 9258-9259.) Moreover, since a scan is a picture of the brain in action, one cannot extrapolate back in time from theresults. (45 RT 9315-9316; 46 RT 9450-9451.) However, a PET scan might have utility for a surgeon, even if it was taken a month before the surgery. (46 RT 9499.) Yet, that was a different situation than using the scan for research purposes to see whatparts of the brain were affected by chronic methamphetamine use. (46 RT 9500.) In short, the scans could notreliably | show what appellant’s brain looked like at the time of his arrest. (46 RT | 9443.) With regard to Wu’s PET scan and the control group he employed, Mayberg explained that, ideally, MRIs should have been doneto see if (...continued) is in the area of PET neurological imaging. (See generally 45 RT 9223- 9261.) Alternatively, it may have beena transcription error. 53 there were any brain abnormalities in the group. (45 RT 9302-9303.) Withoutthis screening, it was difficult to identify appellant’s brain as abnormal in comparison. Additionally, to be able to generalize findings based on the effects of methamphetamine onthe brain, the group should have been comprised ofpeople who used methamphetamine chronically and had no other brain abnormality. (45 RT 9306-93 07.) Further, as concerned predictive values relating to aggression and the brain, the control group should have been screened to exclude those individuals with psychiatric or neurological diseases or diagnoses. (45 RT 9306-9307.) Last, the group should have been comprised of methamphetamine users whowerenotviolent. (45 RT 9308.) In this way, there would have been controls for relevant variables that influenced the brain and the scan’s ability to isolate for violence would have been optimized. (45 RT 9309.) In Mayberg’s opinion,at least five individuals should not have been included in the control group and more should have been added. (45 RT 9305-9306.) Mayberg pointed out that depression affected brain imagingin thatit manifested as decreased frontal lobe and cingulate gyrus activity. Thisis true whether the depression is genetic or situationalin its origins. (45 RT 9310-9313.) She agreed that chronic methamphetamine use could cause damageto the brain and that methamphetamine abusecouldresult in psychosis and paranoia andthat clinical literature existed that supported a connection between the chronic use of methamphetamine andacts of violence. (46 RT 9488-9489.) Mayberg also recognized that sleep deprivation affected the brain. (46 RT 9488.) Mayberg’s opinion, based on appellant’s PET scan and the raw data underlying the scan, was that mild hypometabolism (decreased activity) existed in two very discrete portions of his bratn—theright frontal lobe and in the cingulate. This abnormality was more consistent with depression 54 than with chronic methamphetamineuse or head trauma. (45 RT 9360- 9363, 9370; 46 RT 9400, 9423, 9505.) If appellant’s brain were affected solely by chronic methamphetamineuse, it would have manifested in most other parts of his brain as well, not just the frontal lobes. (45 RT 9364; 46 RT 9400.) Mayberg disagreed with the main conclusions reached by the defense experts. Specifically, she disputed Wu’s assessment that the amygdala was one of the most active portions of appellant’s brain. (46 RT 9398.) Mayberg further disagreed with Amen and Buchsbaum’s viewsthat significant disparity existed between frontal and rear brain activity. To the contrary, she noted that the raw data underlying the scans revealed normal front-to-back activity. (46 RT 9417-9418, 9423.) Mayberg respected and utilized Buchsbaum’s work on schizophrenia and depression. However, she also believed his research, as contained in the Rainestudies, was flawed due to bad controls, which resulted in limited conclusions. (46 RT 9469.) While Mayberg agreed that damageto the limbic system—involved with primitive behaviors—could impair a person’s ability to control their behaviors, she could not say that methamphetamineuse, sleep deprivation, and stress would necessarily enhanceirrational feelings in someone with decreased activity in the prefrontal cortex and increasedactivity in the limbic system. (46 RT 9493-9496.) With regard to Amen’s SPECTscans, Mayberg notedthat he bypassed multiple steps, which made it impossible to discern what was happeningin appellant’s brain. (46 RT 9425.) In short, his scans were susceptible to false readings, including a false representation ofblood flow in the cingulate gyrus. (46 RT 9433, 9436.) This, in turn, called into question the conclusions he reached based on these scans. (46 RT 9439.) To the extent that the scans might reflect increased blood flow in certain parts of the brain, that would be typical for anyone who hadtaken 55 amphetamines. (46RT 9442.) Nonetheless, Mayberg disagreed with Amen’s conclusion that the cingulate gyrus was overactive. (46 RT 9447.) Additionally, Mayberg opined that the studies the defense experts cited in support oftheir opinions were irrelevant to appellant’s case. (45 RT 9335.) The Grafman, Goyer, Volkow,and Rainestudiesall involved different parts of the brain and different types of people. (45 RT 9326.) Specifically, the Grafman study hadnorelation to appellant’s case because it concerned different part of the brain. (45 RT 9329.) The Goyer study focused on certain personality disorders and the Volkow study involved _ patients who were hospitalized due to mentalillness. (45 RT 9330-9334.) In the Raine studies, all subjects were murderers, but they were not qualified as to whether they had head injuries, psychiatric disorders, or other characteristics that might have relevance to appellant’s case. (45 RT 9335-9340.) Additionally, the Raine study repeatedly cautioned against generalizing the findings beyondthe specific groups studied. (45 RT 9341.) Further, Mayberg noted there were no published studies on the effects of methamphetamineonthe brain. (45 RT 9321.) Doctor Kent Rogerson wasa psychiatrist in private practice in Stockton. He was board-certified in psychiatry and neurology andtestified as an expert in psychiatric care. (47 RT 9625, 9630.) Rogerson had assisted the prosecution and defense in various criminal cases during his career. He worked with the courts to evaluate competency, as well. (47 RT 9630-9633.) Rogerson wasretained by the prosecution in appellant’s case and asked to complete a general psychiatric exam and to assess competency, insanity, and whether appellant suffered from any mental disorders. (47 RT 9636.) - Rogerson examined appellant on November 13—-the day after he was arrested. (47 RT 9634-9635.) The interview took place at the county jail and lasted a little less than two hours. (47 RT 9637.) Thejail records 56 showed Rogerson’s visit may have been shorter, but Rogerson explained that he did not personally sign himself in or out. (47 RT 9688-9691.) Rogerson obtained background information after his interview with appellant, which he incorporated into his diagnosis. (47 RT 9639-9640, 9647.) Appellant freely discussed his crimes with Rogerson. (47 RT 9648- 9650.) Appellant told Rogerson that he committed the robberies because he was unemployed and needed moneyto pay rent. (47 RT 9648.) After discussing his burglary of King’s van andstealing the gun, appellant described the Loper murder, “[S]hooting the dude at work was the second one.” (47 RT 9649.) He described Loperas “an asshole” and a “goodie- two-shoes.” (47 RT 9649.) Appellant elaborated, “I shot him as he got out of the truck and left him where he dropped. I tried to get myjob back by calling, but they wouldn’t take me back because of the drug suspension.” (47 RT 9649.) With regard to Mayfair Liquors and the Chacko murder, appellant said, “I walked in and shot him. I wasn’t thinking. I was thinking about the money and payingbills.” (47 RT 9650.) As for Village Oaks Market and the murders of Gao and Yu, appellant stated, “I didn’t want them to resist. I just walked in and shot.” (47 RT 9651.) He observed, “[J]ust kept going, so I wouldn’t feel anything.” (47 RT 9652.) When Rogerson asked appellant why he committed the crimes, appellant said, “I guess my motive was revenge and money.” (47 RT 9652.) As for drug use, appellant started using marijuana when he was 14 and progressed to amphetamines overthe next several years. Appellant said that he used methamphetamineextensively in the 10 years preceding his arrest, with the exception of a two-year period when he wasliving in Florida. (47 RT 9651-9652.) 57 On a couple of occasions during the interview, appellant became tearful when discussing the effects of his crimes on his family—his daughter, in particular. (47 RT 9699.) Regarding mental status, Rogerson determinedthat appellant’s mood was appropriate and that his short-term and long-term memory and general judgmentwereintact. (47 RT 9641-9647.) Appellant’s intellectual skills were average, at worst. (47 RT 9645.) Rogerson determined that appellant met thecriteria for competency. He did not show evidence of psychosis, depression, thought disorder, or brain injury. In Rogerson’s opinion, appellant executed multiple complex behaviors in committing the crimes and wassaneat the time of the offenses. (47 RT 9652-9653, 9660.) Rogerson’s psychiatric evaluation was that appellant engaged in excessive use of methamphetamine and developed a dependence on the drug, which impaired his functioning. He also observed that appellant exhibited some withdrawal symptoms. Additionally, Rogerson classified appellant as having an antisocial personality disorder with schizoid traits. (47 RT 9654-9655.) Rogerson explained that an antisocial personality disorder described someone whohad noregard or respect for the rights or property ofothers andlittle ability to empathize. Typically, such a person engaged in deception and criminal conduct. (47 RT 9657, 9722-9723.) In Rogerson’s view, appellant exhibited seeds ofthis antisocial personality disorder in his teen years. Rogerson quoted Doctor Kerry Krop, a psychologist who evaluated appellant when appellant was 15 years old: “He is bored at home, at school, and generally with his friends. He sees moneyas a panacea andthusis motivatedto get it [quoting appellant] ‘anyway I can.’ He has almost no insight into his self-destructive behavior patterns andseeslittle need for change. Thereis little guilt expressed regarding his situation, except that [quoting appellant] ‘I wish I didn’t get into trouble so much.’” 58 (47 RT 9658-9659.) Krop’s report also included background information from appellant’s mother Loretta. She described someofthe negative family dynamicsthat existed during appellant’s formative years. (47 RT 9709-9710.) The report noted that appellant was submissive, suggestible, and overly dependent on others—a personality pattern that resulted in conflict for him. (47 RT 9711.) Krop strongly recommended family therapy. (47 RT 9712.) Rogerson opinedthat appellant’s actions in carrying out the crimes were “well thought out, carried out, and they were donein either the commission of a robbery or for revenge and that sort of thing.” (47 RT 9660.) He did not observe any indication that the crimes werethe result of impulse. (47 RT 9660.) On the contrary, appellant’s conduct was purposeful and goal- driven. (47 RT 9660-9661.) IV. DEFENSE SURREBUTTAL Detective Coon stated that appellant’s interview concluded around 5:00 or 5:30 a.m. on November 13. (47 RT 9725.) Appellant arrived at the field to assist in recovery of the gun at approximately 9:45 a.m. that morning and departed around 10:00 a.m. (47 RT 9725.) 59 V. PENALTY PHASE RETRIAL: AGGRAVATING FACTORS® A. Circumstances ofthe Crimes 1. Auto burglary and theft of Michael King’s gun (See generally 78 RT 16155-16200.) 2. Cal Spray shooting (See generally 78 RT 16200-16220, 16241-16336; 79 RT 16348- 16392; 82 RT 16896-16909.) 3. Eight Mile Road murder (See generally 79 RT 16395-16423, 16437-16527; 80 RT 16540- 16555; 82 RT 17107-17139.) 4. Bank of the West robbery (See generally 80 RT 16556-16587.) 5. Mayfair Liquors murder (See generally 80 RT 16591-16703; 81 RT 16708-16741, 16842- 16864; 82 RT 17139-17158.) 6. Village Oaks murders (See generally 81 RT 16742-16780, 16789-16841; 82 RT 16966- 16982; 82 RT 17159-17177.) 7. Police investigation and appellant’s arrest (See generally 81 RT 16866-16881; 82 RT 16916-16965; 83 RT 17193-17241, 17290-17349, 17357-17427.) | ® Appellant’s claimsthat involve penalty-phaseissuesrelate to the retrial. For this reason, respondent does not set out the evidence adducedat the first penalty phase trial. Also, at the penalty retrial, the prosecution presented evidence aboutthe crimes, which largely mirrored that adduced at the guilt phase. To conserve resources, it is omitted here. Insofar as these portions of the record maybe relevantto any issue, they will be referenced accordingly. 60 B. Victim impact evidence 1. Impact of James Loper’s Murder Monica Loper was the wife of James Loper. They had been high school sweethearts and were married for about eight and a half years. The Lopers had two boys—Andy and James—whoweresix and eight years old, respectively, at the time of the murder in October. (83 RT 17429-17430.) Monica, James, and their children were living with James’s parents at the time. (83 RT 17429.) James’s pager went off in the early morning hours of October 29. Monica explained that James’s reaction was, “‘Oh,great.’” He hated getting up early. Jamesleft the bedroom to makea call, returned to the room, got dressed, and told Monica that he had to leave. (83 RT 17435.) Monicasaid, “‘Okay. I love you.’” James responded,“I love you, too.” Heleft to go and do his job. (83 RT 17435.) About 6:30 that morning, the couple’s oldest son James wentinto Monica’s room andsaid, ““Mommy,the sheriff's department’s outside for you.’” Monica did not think anything of it and went to the door and then had James and the rest of the family wait inside the house. She told them she would be return in a few minutes and closed the door behind her. (83 RT 17434.) Detective Huber told her that James’s body was found under his truck and that he had been shot and killed. (83 RT 17434-17435.) Monica explained that James took the job with Charter Way Tow so that he could spend more time with their children. (83 RT 17340.) During James’s employment, Monica visited the Charter Way Tow office with the children. She saw appellant, but never talked to him. (83 RT 17431-17432.) Judith Loper was James’s youngest sister. (83 RT 17436.) She described her brother as a protector and friend. He was a personthat 61 “would do anything for anybody.” They were a close family. (83 RT 17438.) Judith explained that, since James’s death, their father cried a lot and could not bring himself to attend the court proceedings. (83 RT 17437.) Hazel Loper, James’s mother,testified that around 5:30 on the morning of October 29 she was on her way to the cemetery, before heading to work, to visit her mother and father’s graves. (84 RT 17455-17456.) On the way, she saw trucksandpolice cars at the end of Eight Mile Road. She did not think muchofit and drove onto Interstate 5. (84 RT 17456.) Hazel then received a call from her eldest daughter Debbie whotold her to come home. Hazel told Debbie that she could not because she was on her way to work. Debbie insisted that Hazel return home. (84 RT 17456.) When Hazel returned, she found her oldest grandson crying. She thought perhaps something happenedto her daughter Judy, who was in an abusive relationship. When Debbie told her that James was murdered, Hazel did not believe it. She told her that she heard his beeper go offthat morning andhis truck start. (84 RT 17457.) Hazel said that James was probably just on another call and would be back soon. Her family told her that James was dead. (84 RT 17457.) | Hazel explained that James wasclose to his sisters and that his death had devastated the family. Her youngest grandson could not go to school any longer and had to be home-schooled. Her eldest daughter’s marriage ended. (84 RT 17457, 17460.) Ron—her husband of 38 years—could not come to court because he wasafraid of what he might do that could put him in jail. (84 RT 17458.) James’s death also affected the family financially because he helped buy the house in which their family resided. (84 RT 17461.) Hazel’s health was compromisedbythe strain of her son’s murder. © (84 RT 17462.) | 62 Hazel said that James loved his family and worked very hard because he wantedthe best for them. (84 RT 17457.) He was saving moneyso that Monica could finish school. James also had plans to become a deputy sheriff and started doing ride-alongs. (84 RT 17457-17458.) Monica and Hazel shared some of the Loper’s family photos with the jury. (83 RT 17432-17433; 84 17459-17461.) Hazel said that it tore her apart knowing that her son died by himself out in the middle of nowhere. (84 RT 17458.) 2. Impact of Stephen Chacko’s Murder Anice Chacko was married to Stephen for seven years. They had two children and she was pregnant with a third at the time of his murder. (84 RT 17463-17464.) Stephen, who had been a lawyerin India, movedto the United States to be with Anice. They owned Mayfair Liquors together. (84 RT 17464-17465.) On the morning ofNovember 4, Anice noticed that Stephen did not call at 9:00 to wake her up,as he typically did. She kept calling the store, but there was no answer. (84 RT 17468.) On her way to work, Anice stopped by the store, which “was covered with plastic tape.” (84 RT 17468.) Anice knew something was wrong. She wantedto go inside the store, but the police stopped her and said that Stephen was taken to the hospital. She thought he was going to be okay. Anice was taken to the hospital. (84 RT 17468-17469.) After Stephen’s death, Anice was forced to move to India with their children because they were “homeless.” They moved in with Stephen’s brother. (84 RT 17465-17466.) Stephen’s body was transported back to India where he was buried. One of their young children asked Anice why his daddy wasin a “special bed” and not talking to him. (84 RT 17467.) The children still did not understandthat their father was not coming back to them. (84 RT 17467.) Anice explained that she and the children wanted 63 to return to the United States, but they did not have a house and she could no longer work. (84 RT 17467-17468.) Anice described what was shownin several family photos. (84 RT 17466-17467.) 3. Impact of Besun Yu’s Murder” Besun Yu was Jack Yu’s mother. He described herasthe pillar of their family—tlike the center post in a tent. She was a loving and hard- working person. (84 RT 17471.) Besun took over the Village Oaks Market to help out a family friend who was having trouble managing thestore. (84 RT 17473.) Besun would get up at 6:00 a.m., drive an hourtothestore, and return home at 10 or 11 o’clock at night. Sometimes, she would provide someofthe poorer children in the neighborhood with something to eat and drink as they passedthe store on their way to school in the morning since they could not afford breakfast. (84 RT 17475.) Besun taught Jack and his siblings to be responsible. (84 RT 17472.) Jack’s mother and father were married for 30 or 35 years. His father had changed since Besun’s murder. (84 RT 17472.) His mother’s death also put pressure on Jack,as the firstborn son, to take over the market. He struggled with depression. (84 RT 17473-17474.) Jack’s sister was not herself either. Neither of them smiled much anymore. (84 RT 17474.) It was important to Jack to testify so that people would know who his mother was and because he was angry that appellant took away his mother’s life and then turned her murder into a joke. (84 RT 17476.) Besun’s son David Yualsotestified. He described his motheras sweet and kind. (84 RT 17478.) She madesure the family was close. (84 ” No victim impact evidence waspresented regarding Village Oaks murder victim Jun Gao because he did not have family in the United States from whom the prosecution could secure such evidence. (49 RT 10306.) 64 RT 17479-17480.) David helped Besun when she took over the store. Like Jack, David saw his mother work long hours at the store. (84 RT 17479.) Jack missed his mother’s smile, her tender loving care, and her cooking. Since her murder, the family had drifted apart. The siblings did not see each other as often. (84 RT 17480.) David felt that his brother Jack changed a great deal after their mother’s death. (84 RT 17481.) David felt like he was missing a part of himself, too. (84 RT 17482.) Karen Tan was Besun’s daughter. She wished the jury could have met her mother. (84 RT 17483.) Besun worked very hard for her children. Her only dream in life was to see her children grow up, get married, and have children. Only then, did Besun feel that her life would be complete. (84 RT 17486-17487.) Karen felt that her mother was her soul mate. (84 RT 17484.) She talked to her mother and said good night every night before she wentto bed. Karen would sometimes go to Besun’s closet and smell her clothes. (84 RT 17487.) She said, “Do you know so many night, I woke upin the night, and I could feel my mom was holding my hand. Warm, chubby,hard working hand. I woke up like that. And I am disappointed there is no mother.” (84 RT 17487.) Like the other victims’ family members, Jack, David, and Karen shared a few family photos. (84 RT 17474, 17481, 17484-17486.) C. Appellant’s Prior Convictions Appellant’s certified 1982 felony burglary priors from Florida were admitted into evidence. (84 RT 17488-17489; People’s Exh. No. 667.) 65 VI. PENALTY PHASE RETRIAL: MITIGATING FACTORS” A. Appellant’s Family Appellant’s mother, Loretta Peoples, described their family and appellant’s upbringing. He was the second-born of three sons. Larry was appellant’s older brother and Lee the younger. (86 RT 17941-17942.) As a baby, appellant was very anemic and of low birth weight. (86 RT 17957.) When he was a youngchild, appellant wet his bed. He also had allergies. (86 RT 17959.) He wasvery sensitive, timid, and shy. (86 RT 17961.) However, appellant was the most affectionate of the children. (86 RT 17964.) In Loretta’s opinion, he was the most emotionally needy. Yet, these needs were never met. (86 RT 17962.) Loretta explained that she was in a 40-year loveless marriage to Luther—a verbally abusive alcoholic. Luther was also an absent parent; he wasin the Navy and at sea most of the time. (86 RT 17946, 17951-17952, 17954, 17965.) Herarely interacted with the boys. (86 RT 17962.) When he did interact, Luther was verycritical. At times, he called appellant “stupid.” (86 RT 17955, 17974.) Appellant was a marginal student. (86 RT 17981.) In fifth grade, he started associating with the wrong crowd. (86 RT 17982.) In seventh grade, Loretta sent him to Carla Hawthorne whoacted in the capacity of a social worker and counselor. (86 RT 17985-17986.) Eventually, Doctor Krop conducted a psychiatric evaluation of appellant. (86 RT 17987.) During his teenage years, appellant still soiled his pants. (86 RT 17966.) This frustrated Loretta and on one occasion when this happened, '° At the penaltyretrial, the defense presented testimony from numerous witnesses who hadalso testified during the guilt phase. To the extent that there was a significant and relevant difference in the witnesses’ testimony between the guilt phase and penaltyretrial, it is included in addition to the evidence in mitigation. 66 Loretta put appellant in a diaper and had Larry tie him to a tree in the front yard. (86 RT 17967.) The neighborhood children came by and made fun of appellant. He managedto get loose and then ran and hid underneath the family’s car in the driveway until the children left. (86 RT 17967.) This tactic did not cure appellant of bedwetting or soiling his pants. (86 RT 17970.) WhenLoretta could no longer control appellant, she had the sheriff take him. (86 RT 17986.) He becamea ward of the court and wasassigned John Fry as a counselor. Loretta later became aware that Fry was convicted of molesting children. (86 RT 17994.) Appellant was in and out of boys’ homes as a youth. Although he managedto get his high school equivalency certificate, he committed burglaries and went to prison. (86 RT 17995.) After getting out of prison, appellant moved to California to live with Loretta’s parents. (86 RT 17996.) While in California, appellant met Carol and got married. (86 RT 17997.) In 1991, appellant and Carol and their children movedto Florida to live with Loretta and Luther. Appellant had been unemployed and Loretta and Luther thought they could help appellant and appellant could help them take care of Lee, who had been in an accident and had becomea paraplegic. (86 RT 17947, 18002.) Appellant wasthe happiest he had ever been. (86 RT 18001.) He and Carol got jobs and were helping to pay rent. However, family tensions increased because Loretta and Luther had issues with Carol and her parenting. (86 RT 18003- 18004.) The tensions boiled over, which resulted in appellant, Carol, and their children moving back to California in 1993. (86 RT 18005-18007.) Apart from a few bitter and acrimonious letters exchanged between appellant and his family, there wasno contact until appellant’s arrest in 1997. (86 RT 18007, 18014-18024.) Since appellant’s arrest, appellant and his family had mended fences. (86 RT 18056.) 67 In Loretta’s view, appellant was a loving father and husband. He neverhit Carol or their children and hetreated his dog well, too. (86 RT 17998, 18047-18048.) Loretta shared numerous family photos with the jury as she talked about certain events in appellant’s life. (86 RT 18031-18056.) She hoped the jury would spare appellant’s life because he meant so muchto her. (86 RT 18057-18058.) Luther Peoples confirmed much of whatLoretta testified to concerning family life and appellant’s formative years, in particular. (See generally 86 RT 18143-18153.) Growing up, the boys had a loving and caring mother; to a fault, in Luther’s mind, because Loretta pampered the boys and wastoo lenient with them. So, Luther took the role of the stern disciplinarian. (86 RT 18167- 18168, 18177.) Although he was at sea muchofthe time, Luther coached appellant’s little league baseball team when appellant was young. (86 RT 18172.) Whenappellant started having problems, Loretta wentto variousstate agencies to secure help and Lutherleft the Navy to come homeandtry to put appellant on the right track. (86 RT 18152, 18170.) Luther stopped drinking in 1978 and wasno longer drinking when appellant was in high school. (86 RT 18167.) Appellant completed ninth or tenth grade, but then his troubles with the law landed him at a boys’ correctional facility for 18 months. Loretta constantly worried about appellant during his teen years, given his drug use and problems with the law. (86 RT 18175.) Despite eventually getting his high school equivalencycertificate, appellant ran afoul of the law again and went to prison for two years. (86 RT 18175- 18176.) Luther never turned his back on appellant during this time. He visited appellant when he wasat the youth correctional facility and in prison, as did Loretta. (86 RT 18176-18177.) When appellant was released 68 from prison, he returned to home. (86 RT 18177.) Luther was no longerin the Navy andstill sober. He and appellant spent time together goingto. baseball games. (86 RT 18178.) Luther also concurred with Loretta’s account of appellant’s return to Florida with his family and the upheaval that led to their departure. (86 RT 18156-18160.) Luther read one of the caustic letters that he sent to appellant after appellant returned to California. (86 RT 18161.) Luther had since forgiven appellant for leaving Florida abruptly. (86 RT 18174-18175.) Lutherfelt that he had grown to be a loving and caring father who was very supportive of his children, including appellant. (86 RT 18171.) He never abandoned appellant. (86 RT 18178.) Since reconnecting with appellantafter his arrest, Luther talked to him andvisited him every chance he had. (86 RT 18162.) Appellant’s life had value and Luther hoped the jury would spare his son’s life. (86 RT 18163.) Appellant’s brother Lee was four years younger than appellant. (86 RT 18134-18135.) Growing up, Lee wascloser to appellant than to Larry. They shared a room until their family moved to Florida. (86 RT 18135.) Larry was more of a loner. (86 RT 18136.) In 1986, when Lee was 17 years old, he fell off a dock into shallow water, which left him disabled. There was one occasion, while Lee was still hospitalized, that appellant rushed to the hospital in the early morning hours to help him. (86 RT 18136.) Appellant moved to California shortly after Lee’s accident. (86 RT 18136.) He returnedto Florida in 1991 and helped care for Lee on the weekends. (86 RT 18137.) The family environment deteriorated and appellant left Florida, which caused a large rift in the family. (86 RT 18138.) There were no phonecalls to or from appellant in the years that followed; only letters. (86 RT 18139.) 69 After appellant’s arrest, Lee and appellant spoke on the phone. Lee also visited appellant in jail, which wasdifficult and emotional. (86 RT 18140.) Lee loved appellant and supported him. (86 RT 18141.) Larry Peoples—appellant’s older brother—alsotestified. He worked as a correctionalofficer in Florida. (92 RT 19299-19300.) Larry described appellant as quiet, sensitive, passive, and timid. (92 RT 19301-19302.) He could not rememberappellant ever getting into a fight. (92 RT 19302.) When theywere younger, Larry’s role was as appellant’s protector. He tried to keep appellant out of trouble. (92 RT 19300-19301 ) Larry reiterated what other family memberssaid about their upbringing andrelationship with their parents. Hefelt that appellant took the brunt of Luther’s punishment. He also recounted appellant’s history with drugs and how heeventually ended up in prison. (92 RT 19302-19313, 19316-19317.) Onetime, Larry found a 25-caliber Beretta handgun and some marijuana in appellant’s room. Larry took the gun apart and buriedit. Appellant never asked Larry aboutthegun or the marijuana. (92 RT 19314.) On another occasion, Larry noticed that a rifle their grandfather had given to appellant when he was younger was missing. Larry foundit in appellant’s car, which was parked outside a barat the time. (92 RT 19315.) Appellant was happiest and most stable when he returned to Florida with his wife and children. (92 RT 19318.) Appellant appeared to be a good husband and father. (92 RT 19318-19319.) He was also employed during this time. (92 RT 19320.) Yet, Larry discerned tension and sensed that appellant would ultimately leave Florida. Luther and Loretta’s hostility toward appellant resulted from their feelings of betrayal since they built an addition onto the house and counted on appellant to help take care of Lee. (92 RT 19321.) 70 Larry lost contact with appellant for five and one-half years after appellant left Florida. (92 RT 19322, 19339.) The next thing Larry heard wasthat appellant was arrested, which shocked him. (92 RT 19322-19323.) Having workedon death row in Florida prisons for six years, Larry believed the death penalty was appropriate in certain cases. However, he did not want appellant to receive a death sentence because appellant had shown humanity and his death would devastate their family. (92 RT 19338.) Appellant’s fifteen-year-old stepson Matthew loved appellant. (92 RT 19363.) Appellant was involved with Matthew’s little league baseball team and taught him how to swim. (92 RT 19355, 19362.) Matthew visited appellant in jail as often as he could. He and appellant also exchanged letters. Matthew received over 100 letters from appellant, three of which he read to the jury. (92 RT 19356-19361.) Matthew shared some family photographs. (92 RT 19361-19363.) Appellant’s nine-year-old daughter Lindsey told the jury that she loved appellant and that he loved her. (92 RT 19373.) Lindsey was a fourth grade honorroll student. (92 RT 19364-19365.) She visited appellantin jail often. Lindsey and appellant exchanged written correspondence. (92 RT 19366.) She sent about 20 or 30 cards andletters to appellant; she read three to the jury. (92 RT 19367-19369.) Lindsey received about 110 letters from appellant and read four of them aloud. (92 RT 19367, 19369-19372.) Appellant’s wife Carol described appellant’s parenting of his stepson Matthew and daughter Lindsey. He treated Matthew like he was his own. son. (87 RT 18224.) Appellant helped with Lindsey’s delivery and was primarily responsible for her potty training. (87 RT 18226, 18230.) He wasa very loving family man; the children werehislife. (87 RT 18228, 18230.) Carol believed appellant was a good father even though he was under the influence of methamphetamine while caring for their children and 71 their friends’ children. Carol had no objection to appellant driving the children around while he was using methamphetamine. (87 RT 18295- 18296.) | After Lindsey was born in 1991, Carol and appellant started using methamphetamine. Appellant was unemployedat that point. (87 RT 18231-18232.) Needing a clean start, they moved to Florida to live with appellant’s family. (87 RT 18233.) Atfirst, things were fine in Florida. Luther bought Carol and appellant each a car and built an addition onto the house for them. (87 RT 18236.) Appellant got a job, was fired, and then foundanother job. They contributed $800 a month towardrent, insurance, and household expenses. (87 RT 18236.) Carol and appellant remained free of drugs or alcohol for the entirety of their time in Florida. (87 RT 18237.) Family tensions arose because appellant’s parents did not accept Matthew and they were hard on Carol, as well. Carol and Matthew were very unhappyliving there. (87 RT 18238-18242.) Appellant was caught in the middle, but Carol persuaded him that they needed to move back to California. (87 RT 18243.) They returned to California in 1993 and returned to using drugs. Appellant got a job at Cal Spray and waseventually fired. He then started working at Charter Way Tow. (87 RT 18248-18250.) Carol was drinking heavily at the time andtreated appellant poorly. (87 RT 18251.) He never fought back when Carol picked fights; he walked away. (87 RT 18252.) During the nine years that they lived together, appellant was never violent with Carol. (87 RT 18305-18306.) Appellant had accidents while working at the tow company and, as a result, his wages were garnished. He was eventually suspended, which angered him. (87 RT 18252.) There was no money comingin and they were using methamphetamine heavily. During this period, Carol yelled at 72 appellant a lot. (87 RT 18253-18255.) Over the summer, Carol saw appellant working on the gun that, as it turned out, became the murder weapon. (87 RT 18283.) Matthew found the gun and wasplaying with it, which scared Carol. (87 RT 18283.) It was Carol who suggested that appellant call Charter Way Tow after James Loper waskilled. She told appellant what to say. Carol maintained that appellant did not ask for his job back during call. (87 RT 18254.) Shortly before appellant’s arrest, they received a three-day eviction notice. Appellant was looking for work at the time. (87 RT 18279.) He hadlost a lot of weight and his health was in decline. (87 RT 18279.) Appellant did drugs on the day ofhis arrest. (87 RT 18255.) Carol maintained that she was not actually aware that appellant perpetrated the crimes until he told her on the day of his arrest. (87 RT 18284, 18288.) However, during television news coverage of James Loper’s murder, appellant smiled and remarkedthat, “[W]Je all have to go sometime.” (87 RT 18280-18281.) Carol told police that she confronted appellant about the Loper murder and he did not denyit. (87 RT 18289- 18290.) Later, when he affirmed his role as the killer, appellant told Carol that he killed Loper because Loper was a “suck-up” and a “brown-noser.” Hetold Carol how he planned the ambush and murder of Loper. (87 RT 18299.) Appellant recounted that Loper was underthe truck fighting for his life while he continued shooting at him. (87 RT 18300.) Additionally, when Carol saw coverage of Stephen Chacko’s murder on television, she remarked to appellant that she hopedit wasnotthe nice one. Carol knew both men who worked there. (87 RT 18292-18293.) Smiling, appellant confirmed that it was the nice one. (87 RT 18293.) This was when Carolfirst suspected appellant’s involvement. (87 RT 18281.) She also saw money from the Mayfair Liquors robbery in their home 73 around the time of the crime. (87 RT 18290.) Eventually, appellant told Carol the details ofthis crime, as well. (87 RT 18300-18301.) She lied to the police for five hours, whentheyfirst interviewed her because she wanted to protect appellant. (87 RT 18285.) When detectives asked Carol why she did not leave after appellant killed Stephen Chacko, she said that it was because she loved appellant. (87 RT 18294.) Since appellant’s arrest, Carol no longer used drugs or alcohol. (87 RT 18270.) She still loved appellant. Appellant exchangedletters with Carol and the children every week. (87 RT 18255, 18279.) Carol read selected letters into record. (87 RT 18256-18262, 18273-18278.) She and the children visit appellant as much as they could. (87 RT 18262.) Carol shared family photos. (87 RT 18270-18271.) Joyce Southard, Luther’s youngersister and appellant’s aunt, concurred with much of Luther and Loretta’s testimony about their marriage, parenting, and appellant’s homelife. (86 RT 18106, 18115- 181 17.) WhenLuther, Loretta, and the children relocated to Florida, appellant lived with Southard. However, Southard was unclear about the reason; it may have been that she had plenty of room. (86 RT 18105- 18106.) Southard and appellant stayed in touch after appellant moved to California. (86 RT 18105-18107.) She read someoftheir correspondence into the record. (86 RT 18119-18121.) Southard loved appellant and hopedhis life would be spared. (86 RT 18121.) Alice Hamilton was Loretta’s youngersister and appellant’s aunt. (86 RT 18123-18124.) Hamilton laid out the history of grudges that existed on their side of the family. (86 RT 18124.) She confirmed much that other family members had to say about appellant and the family environment. (86 RT 18126-18128.) Hamilton further observed that Larry wasthe favorite in the family and Lee was a confident person. (86 RT 18128.) 74 Appellant, on the other hand, was more laid back. He was also a good husband andfather. (86 RT 18128.) Hamilton loved appellant. (86 RT 18132.) She and appellant kept in touch by mail. She also visited him. Hamilton read someoftheir correspondence to the jury. (86 RT 18129-18130.) B. Friends, Neighbors, Co-workers, and Others Joey Uybungcolived in Chula Vista, near San Diego. Appellant used to live near him when they were children. (89 RT 18591-18592.) Appellant waslike a younger brother to Uybungco. (89 RT 18593.) Uybungcopreviously described appellant as a normal kid from a normalfamily. He did, however, recall the incident when appellant was tied to a tree and laughedat by the neighborhood children, including Uybungco. Healso recounted that appellant’s mother gave appellantoil and vinegar to drink to clean out his body and his father locked appellant in the garage by himself when appellant was in trouble. (89 RT 18595-18596.) Nonetheless, Uybungcostill believed that, overall, appellant’s family, including his mother, was nice. (89 RT 18601.) There were a lot of drugs going around in the neighborhoodback then. Uybungcogave appellanthisfirst marijuana cigarette when appellant was around 9 or 10 years old. (89 RT 18594.) Appellant’s family left Chula Vista without notice. (89 RT 18597.) Uybungcolost touch with appellant, until appellant’s arrest. (89 RT 18601.) Appellant and Uybungcohad since written to each other. (89 RT 18598.) Jeffrey Sproles also knew appellant and Uybungco from Chula Vista whenthey were in sixth to eighth grades. (89 RT 18607.) Appellant was Sproles best friend. (89 RT 18608.) One time, appellant helped Sproles— who was shy—talk to a girl that Sproles had a crush on. (89 RT 18608.) Sproles considered appellant one of the people that helped build hislife. (89 RT 18610.) Appellant seemed like a normal kid to Sproles. (89 RT 75 18613.) Sproles did not know if appellant used drugs during their friendship. Although, Sproles was awarethat Uybungco did drugs and that appellant associated with Uybungco. Sproles believed that appellant started using drugs later. (89 RT 18614-18615.) After appellant and his family moved, Sproles thought about appellant from time to time. (89 RT 18610-18611.) When the defense investigator called, Sproles was excited to hear appellant’s name. However, when he learned what appellant had done, Sproles cried. (89 RT 18611.) Hestill loved appellant because of what appellant meant to Sproles. (89 RT 18612.) Kenneth Blair was the assistant principal of appellant’s high schoolin Keystone Heights, Florida. (86 RT 18072.) Blair had contact with appellant due to “low order”disciplinary problems like cutting school and not doing homework. (86 RT 18073-18074.) Blair noted that appellant’s brothers Larry and Lee were good students. (86 RT 18090-18091.) He- also felt that Loretta was a good mother whotried hard to be supportive of her children. (86 RT 18097.) Blair described appellant as quiet and passive during high school. (86 RT 18075.) Appellant was ignored by most of the other students and had an almost “ghostlike” presence. (86 RT 18076-18078.) While appellant did not pose a threat to students or teachers, he associated with bullies. (86 RT 18081, 18088-18089.) John Hawthorne—son of Carla Hawthorne— was appellant’s best friend. John was exceptionally violent and aggressive, which caused Blair to be concerned about appellant’s association with John. (86 RT 18082, 18095.) At one point, appellant’s mother approached Blair about counseling for appellant. Blair explained the counseling options available, which were not extensive. (86 RT 18079-18081.) There was no drug counseling at the school. (86 RT 18082-18083.) 76 Blair was shocked when he heard the crimes appellant was accused of committing. (86 RT 18084.) Blair was unaware of appellant’s confinementat the juvenile detention facility during his teenage years and his later prison incarceration. (86 RT 18093-18094.) When Blair heard about appellant’s crimes, he wrote to appellant to see if he could reestablish . a relationship with him. (86 RT 18085.) Blair would have madethetrip to testify for any of the youth he knew from school. (86 RT 18086.) He cared for appellant despite what appellant had done. (86 RT 18087.) Carla Hawthorme wasappellant’s outreach social worker when he was living in Keystone Heights. (89 RT 18549.) She worked for a community agency there and helped families deal with problems. (89 RT 18551.) Carla had three children: Tonya, Tosha, and John. Tosha and John were friends with appellant in school. (89 RT 185.) Appellant’s mother contacted Carla for help because he wasgetting into trouble at school and with the law. (89 RT 18553, 18559.) Drugs had become a problem in the community, including with appellant and Carla’s son John. (89 RT 18559- 18560, 18562-18563.) | After meeting with appellant for about six months, Carla recommendedthat appellant undergo more extensive counseling in — Jacksonville where such resources were available. (89 RT 18561-18564.) It seemed that the marital turmoil between Loretta and Luther had an impact on him, which appellant kept inside. Also, he was also constantly chided by other children in the neighborhood and called names. (89 RT 18555-18556.) Carla described appellant as small in stature, withdrawn, quiet, and submissive, with very little self-esteem or confidence. (89 RT 18554, 18565.) He wasalso polite and respectful. (89 RT 18573.) Despite his docile nature, Carla acknowledged that appellant was a troubled boy, who 77 ~ had numerouscontacts with the juvenile justice system during this time. (89 RT 18573.) Carla last saw appellant when he returned to Florida in the early 1990s. He seemed happy and wasclean and sober. (89 RT 18566-18567.) Appellant looked good physically, too, having put on some weight. (89 RT 18567.) He was loving and openly affectionate. Appellant was employed, had assumed familial responsibilities, and was making good choicesin his life. (89 RT18569-18570, 18573-18574.) Carla had a difficult time accepting that appellant committed the crimes. (89 RT 18571.) She cared for appellant and loved him. (89 RT 18572.) Tosha Hawthornestated that she and appellant enjoyed a close friendship when they were teenagersliving in Florida. (89 RT 18576.) Tosha explained that appellant used a variety of drugs then: marijuana, cocaine, acid, barbiturates, and narcotics. (89 RT 18577.) Tosha and her brother John—also close friends with appellant—were using as well. (89 RT 18577-18578.) Tosha described appellant as very quiet, timid, and submissive. He was a wallflower who,in her opinion, would not hurt anyone. (89 RT 18578.) On the other hand, her brother John wasa bully who beat up people, including Tosha, and he picked on appellant a lot. John was very cruel and would sometimes burn appellant with cigarettes. (89 RT 18578.) Appellant never fought back; he merely told John to stop. (89 RT 18579.) John also verbally abused appellant, including accusing appellant of having been “butt-fucked.” (89 RT 18580.) Tosha and her female friendstried to protect appellant from John. (89 RT 18581.) Eventually, Tosha got off drugs and cleaned up herlife. (89 RT 18582.) She saw appellant when he moved backto Florida with his wife and children. He was off drugs, looked healthy, and was a great husband 78 and loving father. (89 RT 18583-18584.) In Tosha’s view, appellant’s wife Carol was always nagging him,but he would never get upset with her. (89 RT 18585.) Appellant left Florida because Caroldid not get along with his parents. Appellant wanted to stay, but was caught in the middle. (89 RT 18586.) Tosha lost contact with appellant after he left Florida, but she supported him and loved him. (89 RT 18586-18587.) Roy Gratzmiller was appellant’s probation officer in Florida. (87 RT 18197-18198.) Appellant wentto prison as a youthful offender for two burglaries. Appellant was released to Gratzmiller’s supervision. (87 RT 18200-18201.) Gratzmiller observed that appellant was moreat ease meeting away from his home due to family tensions and-stress that increased shortly after Lee’s accident. (87 RT 18202-18203.) Appellant was cooperative and, to Gratzmiller’s knowledge, did not violate his probation. (87 RT 18204-18205.) However, when the prosecutor asked Gratzmiller whether he was aware of Larry People’s statement regarding finding marijuana and gunsin appellant’s possession during this time, Gratzmiller said he was not. He acknowledgedthat if appellant was in possession of drugs or guns during the probationary period, it would have constituted a violation. It would not be unusualif a probationeror parolee deceived Gratzmiller. (87 RT 18215-18216.) Guy Lazarro lived in Florida. He met appellant at the rendering plant where they both worked in 1992. (86 RT 18060-18061.) Lazarro knew appellant for about two months. They neversocialized. (86 RT 18068- 18069.) Lazarro felt that appellant was a good worker with a positive attitude. (86 RT 18062.) Although appellant was fired for making a mistake within the first 90 days of his employment, Lazarro believed it was unfair. (86 RT 18065.) He did not want the jury to render a death verdict because he saw something good in appellant. Lazarro never had contact with appellant after appellant was fired. (86 RT 18069-18070.) 79 Joni Fitzsimmons—aneighbor and friend—reiterated muchofher guilt phase testimony abouther association with appellant and Carol and their life at the apartment complex, including her opinion that appellant was a good father and family man. (87 RT 18312-18317.) She knew the couple and their children for about four and one-half months. (87 RT 18330.) Fitzsimmonsshared her observations of appellant, Carol, their marriage, and their parenting. Appellant and Carol argued, but it was typically Carol that started it. She would yell at appellant and he would walk away. (87 RT 18317.) The couple disagreed about howto discipline the children: Carol believed in corporal punishment; appellant did not. (87 RT 18318.) Carol was a heavy drinker, which upset appellant and created friction. (87 RT 18320-18321.) When she was drunk, Carol would sometimes engage in conduct that humiliated appellant, like flashing her bare breasts and asking others to fondle them. (87 RT 18319-18320.) She would often demean appellant and call him names. (87 RT 18326.) Although she wasnot sure how muchshe saw appellant a couple of weeks before his arrest, Fitzsimmonsnoticed that he looked skinny, unkempt, and dirty. (87 RT 18324, 18335.) She noted that when appellant was on methamphetamine, he sometimes movedhis jaw back andforth. (87 RT 18325.) At one point, Carol showed Fitzsimmonsa gunthat appellant had during the time he wasstill employed at Charter Way Tow. Fitzsimmons had concerns about her children being in appellant’s home with a loaded weapon there. (87 RT 18337-18339.) | Whenshe spoke to law enforcement investigators, Fitzsimmons initially lied about the gun anddrug use. (87 RT 18329, 18341-18343.) Whenshe acknowledgedto policethat appellant used methamphetamine on a daily basis, she also told them that his behavior during July, August, 80 September, and October was normal. Appellant was his usual calm,nice, peaceful self. (87 RT 18330-18334, 18339.) Mary Redvelski lived in the same Stockton apartment complex as appellant and Carol. (88 RT 18357.) Redvelski had two children andtheir families becamefriendly. (88 RT 18358.) Based on her association with the couple, Redvelski described appellant as a “very sweet person” and seemingly normal during the six months she knew him. (88 RT 18358, 18365.) He loved working as a tow truck driver and, during the summerof 1997, appellant was workinga lot. He sometimes looked disheveled after he was done working. At the time, Carol was drinking heavily. (88 RT 18359-18362.) Appellant was generally a quiet person, but not withdrawn. (88 RT 18370.) Redvelski’s conversations with appellant were limited; they never discussed personal things. (88 RT 18371.) Redvelski never saw appellant and Carol argue. (88 RT 18359- 18361.) Nor did she have any knowledge regarding drug use in the apartment complex. Redvelski was a Mormon;she did not do drugs or drink alcohol. She never saw anything about appellant that led her to distrust him, including with her children. (88 RT 18362.) However, had she known about appellant’s drug use, Redvelski would not have trusted him. (88 RT 18363.) Nonetheless, Redvelski felt that appellant was a good | father and husband. It shocked Redvelski when she learned of appellant’s arrest and his drug use. (88 RT 18363.) There was nothing out of the ordinary or unusual that Redvelski noticed about appellant during the time period in which he committed the crimes. (88 RT 18366-18367, 18372.) She remained friends with Carol andstill cared about appellant. (88 RT 18364.) Redvelski’s ex-husband, David Eppling,lived in the apartment complex with Redvelski and next door to appellant and Carol. (88 RT 81 18374.) Eppling considered appellant an acquaintance; they never had personal conversations. (88 RT 18379-18380.) Appellant helped Eppling and Redvelski one time when their car broke down. (88 RT 18376.) In Eppling’s opinion, appellant appeared to be a normal person with a normal marriage. (88 RT 18381.) Appellant was a good father and Carol was a nice person who cared appropriately for her children. (88 RT 18375- 18376.) Although, Eppling noted that Carol would get “hammered”and “boisterous” sometimes and “show herself off’ to the public in the complex courtyard. (88 RT 18377.) Eppling could tell that this upset appellant, but appellant never confronted Carol. (88 RT 18377.) Appellant never impulsively flew off the handle or exploded in rage. He was able to control his feelings and reactions to Carol’s negative conduct. (88 RT 18381- 18382.)Carol would,at times, be upset over appellant’s long work hours. Yet, Eppling never heard them argue or Carol criticize appellant. Nor did he ever hear arguing or shouting coming from appellant and Carol’s apartment. (88 RT 18378, 18380-18382.) Arnetta Scott lived in the apartment complex above appellant and Carol. (88 RT 18384, 18389.) Scott’s son Julian went to school with appellant and Carol’s daughter Lindsey. (88 RT 18384.) Appellant was very helpful because he took Julian to and from school while Scott was involved in a criminaltrial in Oakland. (88 RT 18385.) Appellant also stayed with Julian when Carol took Scott to the hospital. (88 RT 18386.) She trusted appellant. (88 RT 18388.) Julian never reported any problems while in appellant’s care. (88 RT 18391.) Scott believed that Carol and appellant had a normal marriage. Scott never heard arguing coming from their apartment. (88RT 18389.) Appellant seemedlike a pleasant and nice person. She had no idea about his drug use. Scott never saw appellant use drugs and he neveracted asif he was on drugs. (88 RT 18390-18391.) Nor was there was anything about 82 appellant to suggest that he was violent. (88 RT 18386.) If Scott had knowndefinitively that appellant was using drugs, she would not have entrusted Julian to appellant’s care. (88 RT 18389.) Lori Fike was Carol’s best friend. (88 RT 18393.) They met in 1996 when Carol and appellant moved in next to Fike. (88 RT 18394.) She never heard any major arguments between the couple. (88 RT 18395.) Fike felt that appellant was a kind and loving father—even while on methamphetamine. (88 RT 18395, 18398.) He was excellent at barbecuing. (88 RT 18396.) Fike loved appellant and felt that his life had value. (88 RT 18397.) Edward Richards wasalso a neighbor and the person who secured appellant his job at Charter Way Tow. Richards was leaving the company and knew there would be an opening. (88 RT 18399-18400.) He described the job as stressful and demanding with long hours. (88 RT 18401.) Appellant was quiet and mainly kept to himself. The children loved him. Richards was impressed with appellant’s interaction with the children, whichled him to take an interest in appellant and get him the job. (88 RT 18406.) Appellant had just been laid off from McDonald’s and Richards ‘thought appellant deserved a break. (88 RT 18407.) Richards observed that Carol sometimes engaged in promiscuous conduct when she was drinking. She would get loud, too, which would prompt appellant to leave her presence. (88 RT 18406.) . Richards also knew James Loper from working at Charter Way Tow. Hedescribed Loperas “a nice guy.” (88 RT 18408.) Despite what appellant had done, Richards remained appellant’s friend. (88 RT 18408.) Rhonda Allen coached appellant’s daughter’s baseball team in early to mid-1997. Allen saw appellant and Carol about three or four times a week then. (91 RT 19163.) Appellant was very involved and wentto all of Lindsey’s practices and games. Sometimes, he would help coach. (91 RT 83 19164.) Appellant wasstrict about Lindsey getting homework donebefore she went out to play. Allen liked appellant and thought he was a good | father. (91 RT 19164, 19167.) Sometimes appellant or Carol would watch Allen’s boys. The boys enjoyed having a male figure spend time with them. (91 RT 19165.) Allen tried to help appellant and his family when they were having financial problems. (91 RT 19168.) Allen was not aware that appellant was using methamphetamine during the time she knew him. Hedid notact strange or abnormal when he was aroundthe children. Had Allen known, she probably wouldnot have — entrusted her children to appellant’s care. (91 RT 19172.) Allen also did not know that, during their association, appellant committed an auto burglary at Anderson Park. (91 RT 19173.) Allen lost contact with appellant around June 1997 when hestarted working at Charter Way Tow. (91 RT 19169-19170.) Michael Quigel reprised muchofhis guilt phase testimony regarding his association with Carol and appellant, including having sold them methamphetamine. (88 RT 18413-18414.) Quigel said that he sold appellant methamphetaminethe night before the Village Oaks murders. Appellant was with his friend Joey at the time. (88 RT 18418.) Quigel estimated that he sold appellant methamphetamine about three or four times. Typically, appellant bought small amounts. (88 RT 18442-18443.) Quigel had a dim view of Carol and felt she was a “poor excuse for a woman.” (88 RT 18446.) As for appellant and Carol’s marriage, Quigel stated that the couple seemed to get along and he never saw them fight. (88 RT 18441.) Ashe did during the guilt phase, Quigel recounted his encounter with appellant in the apartment complex on the morning of the Village Oaks murders. (88 RT 18416-18417.) He acknowledgedthat he left out many details about the encounter, whenhefirst talked to the prosecution’s 84 investigator—specifically with regard to appellant’s appearanceat the time. (88 RT 18439-18440.) | Quigel, a state prisoner serving six years for armed robbery,tried unsuccessfully to obtain a deal from the prosecution in 1999 in exchange for his testimony about appellant. (88 RT 18413, 18423-18424, 18435.) Prior to that, in 1998, he gave a detailed statement to an investigator from the District Attorney’s Office in which hesaid that appellant was wired all the time, but wasstill nice and calm when on methamphetamine. (88 RT 18429-18430.) On one occasion during Quigel’s association with appellant, appellant drove Quigel to a gas station in the early morning hours after they had used methamphetamine. (88 RT 18431-18432.) Quigel remarked to appellant that the female store clerk was “stupid” for unlocking and opening the door for appellant because she wasalone and could easily be robbed. Appellant suggested to Quigel that they rob her. (88 RT 18432-18433.) Gerald Ball lived in Stockton and was part-owner and manager of Cal Spray. (88 RT 18461.) Ball knew appellant from work. Appellant started out doing the low-end difficult work. (88 RT 18462-18464.) Initially, appellant performed well and was quickly promoted to an operator. Ball had a personalinterest in appellant because he knew that appellant had a family and needed a break. (88 RT 18465.) While an operator, appellant had a couple of mishaps. He was demoted one time andthen brought back up. (88 RT 18467-18468.) Over time, appellant’s performance declined, which Ball suspected was drug-related. (88 RT 18468-18469.) Ball thought appellant was bright, but was messing uphis life. Ball “got in his face” and told appellant how disappointed he was in him. (88 RT 18471.) Appellant did not say much other than to suggest to Ball that things that Ball observed did not really happen and that Ball was imagining 85 it. (88 RT 18471.) Ball told appellant that he was goingto befired and the shop steward let appellant go a day:or two later. (88 RT 18471-18472.) Ball observed appellant behave oddly shortly before he waslet go. He watched appellant walk across the parking lot, stop halfway, go to his knees, put his arms up in theair, and start talking to the sky. (88 RT 18470.) At the time, appellant was having serious problems at work. (88 RT 18474.) Michael Jack testified to seeing appellant at the pay phone outside the Village Oaks Market, shortly before the murders,.as he did during the guilt phase. (89 RT 18623-18646.) | Reverend Troy Skaggs ministered to jail and prison inmates to help them get their lives back on track. (92 RT 19294-19295.) Skaggs heard about appellant and wentto the jail in Stockton to see him. He was unable to make contact with appellant, so he sent appellant a letter. They correspondedin this mannerfor about two years. Skaggs also sent appellant Bible studies. (92 RT 19296.) Since then, Skaggs met with appellant about nine times. He also met some of appellant’s family. Since he started his prison ministry in 1953, it was only the third time that Skaggs testified on an inmate’s behalf. (92 RT 19295, 19297 .) Skaggs andhis wife became friends with appellant and Carol. Skaggs valued appellant’s life. (92 RT 19298.) | C. Psychosocial Expert Testimony Doctor Amentestified about the three SPECT scans that he conducted on appellant in early 1999 and then an additional follow-up scan in 2000. (84 RT 17639-17640.) As hestated in the guilt phase, Amen’s opinion was that the scans revealed that appellant possessed brain abnormalities, which affected his thought process. When appellant used methamphetamine,it exacerbated this dysfunction. (84 RT 17572-17574.) Amen agreed that any person that used methamphetamine,cigarettes, or alcohol consistently for 10 years would have an abnormalbrain. (84 RT 86 17575-17576.) Further, any person who abused drugs could have a heightened susceptibility to anger. (84 RT 17594.) In fact, statistically speaking, half of the jury would have potentially abnormal scans. (84 RT 17611.) | Amen had scanned the brains of 30 known killers—four of them were multiple murderers. (84 RT 17593.) Only one had an abnormal brain. (84 RT 17594.) While he opined that methamphetamine inducedanirrational thought process in appellant that fueled the commission ofhis crimes, Amen conceded that murder, in general, was largely the product of an irrational thought process. (84 RT 17610.) Further, he could not explain why despite appellant using drugs for 27 years, there were notearlier instances of violence. (84 RT 17612.) If Amen wereto treat appellant, he would medicate him to balance his brain function and significantly inhibit dangerous behavior. (84 RT 17569- 17571, 17696-17697.) Yet, medication would notfix appellant’s brain and Amencould not predict whether appellant would commit violence in the future. (84 RT 17694, 17699.) Doctor Wutestified that, based on his PET scan of appellant’s brain, that he was 95 percent certain appellant’s brain was abnormal, althoughit wasnot necessarily correlative of appellant being a murderer. (85 RT 17764-17765, 17768.) While the abnormality made appellant vulnerable to impulsive conduct, it did not exclude the possibility that he could plan and premeditate. (85 RT 17905-17906.) Wu’s conclusions were “preliminary” in the sense that it would be helpful to have additional tests performed such as an MRI or neuropsychological testing. (85 RT 17831.) Wu acknowledged that he could not predict future behavior from looking at a scan. (85 RT 17790; 86 RT 17919.) Wuestimated that 10 to 20 percent of the general population would have abnormal scans. (85 RT 17822.) Mood swings, anxiety, and fear 87 could affect brain scans, as could psychiatric illnesses that had a neurological component. (86 RT 17901-17903.) Of the general population, approximately one-quarter to one-third had psychiatric illnesses. (86 RT 17903.) There wasa probability in excess of 95 percent that someone who used methamphetamine would have an abnormal scan. (85 RT 17804.) Doctor Gretchen White wasa licensed psychologist retained by the defense to investigate and evaluate appellant’s social background and history, specifically, as it related to factor (k) mitigation evidence. (89 RT 18662-18667; 90 RT 18822.) Shetestified in 41 capital cases for the defense. (90 RT 18788.) Ninety-five percent of her work was defense mitigation in the form ofpsychosocial history. (90 RT 18789.) White taught seminars exclusively for capital defense lawyers. (90 RT 18794.) White’s psychosocial investigation was limited to appellant’s childhood and teenage years; she did not focus on his adult life. White was, however, aware that appellant was married, had two children, and provided for his family by being employed for periods of time. (90 RT 18814.) | Although she spent 10 to 12 hours interviewing appellant, White never asked appellant about his statement that he always wanted to murder someone. Nordid she ask if he had these thoughts when he was younger. (90 RT 18763, 18819-18820.) In her view, there was nothing about appellant’s childhood or youth that suggested sadistic or bullying behavior. (90 RT 18828.) White opined that what appellant wrote in his “Biography of a Crime Spree” evinced the same pattern of viciousness and hatefulness that was exemplified in the correspondence between appellant and his | family after he departed Florida in 1993. (90 RT 18820.) With respect to appellant’s family and upbringing, White opined— based in large part on Doctor Krop’s report—that appellant was the product of “a very destructive family system.” (89 RT 18674-18675.) To avoid dealing with the bad feelings generated by a family racked with tension and 88 bitterness, appellant shut down emotionally and turned to drugs. (89 RT 18677-18678.) Yet, White did not believe that appellant suffered emotional abuse to the extent that it reached a clinical level. (90 RT 18798.) Also, there was no indication of physical abuse. (90 RT 18799.) White detailed Luther and Loretta Peoples’s respective family histories, including alcoholism, grudges, bitterness, and other factors that White believed negatively impacted appellant. She also delvedintotheir marriage and their hostility toward one anotherto the extent that it affected appellant. (90 RT 18716-18726, 18733-18762.) In White’s view, appellant wasthe classic middle child: invisible, overlooked, and the neediest and most neglected of the three boys. (90 RT 18751-18756.) | During his teen years, appellant fell in with the drug crowd, which White maintained was a major contributing factor toward his downfall. (90 RT 18772-18773.) Although it was unclear exactly when appellant started using drugs, it was at an early age. (90 RT 18804-18809, 18826.) Another contributing factor was appellant’s molestation by his counselor, John Fry, who orally copulated appellant on two occasions. (90 RT 18778-18779; Defense Exh. Nos. 806, 824.) '! Appellant never mentioned the molest until he was arrested. (90 RT 18779.) This was appellant’s first sexual encounter. He felt ashamed and wasangry at Fry because appellant trusted him. (90 RT 18781.) White characterized appellant’s reaction to the molest as “passive.” (90 RT 18782.) White also spoke to Michael Portbury and David Lamson—Fry’s previous molest "! Certified documents were admitted. One wasajuvenile record, which demonstrated that Fry was appellant’s counselor. (90 RT 18780; Defense Exh. No. 824.) The other wasa certified copy of Fry’s conviction for procuring a person underthe age of 16 for prostitution, whichrelated to White’s recounting of her discussions with Lamson and Portbury. (90 RT 18780; Defense Exh. No. 806.) 89 victims—to corroborate appellant’s allegation that he was molested by Fry. (90 RT 18779-18780.) White acknowledged that appellant received 18 months of counseling when he wasin a group home andthat his family was involved and visited him frequently. Nonetheless, White opined that the family needed more intensive therapy. (90 RT 18802-18803.) In sum, White found that appellant’s self-perception wasthat of generally being an incidental character in his own life. (90 RT 18782.) . Recurring themes throughout his life centered around passivity, humiliation, taunting, and other effects from the poisonous homelife he had while growing up. (90 RT 18783-18784.) Doctor George Woods wasa psychiatrist in private practice with a specialization in mental health issues arising from trauma or chemical dependency. (90 RT 18859-18860.) Woods wasretained by the defense “to try to understand what had happened.” (90 RT 18870-18871.) Among the individuals Woods interviewed were Pastor Kilthau and Reverend Skaggs. (90 RT 18872.) Woods did not conducta clinical diagnosis of appellant. (90 RT 18948.) Woodsdetailed appellant’s past, including his burglary and weapons offenses. (90 RT 18876-18887.) He also generally explained the effects of methamphetamineuse and the stages of substance abuse. (90 RT 18889- 18913.) With specific regard to appellant’s drug use, Woodsopinedthat appellant was addicted to methamphetamineandthat there were genetic influences underlying his addiction. (90 RT 18915.) Woods also explained the phases of addiction as they manifested in appellant’s life. (90 RT 18915-18928.) The fact that appellant committed the shooting at Cal Spray three years after he wasfired indicated to Woods that appellant’s mental state deteriorated in that span of time. (91 RT 19073.) Inasmuchas 90 appellant appeared normal to people around him,the impressions were deceiving. (90 RT 18933-18934.) That was because most of the people making these observations were on drugs themselves. Also, the effects of methamphetamine were, generally speaking, not obvious. (90 RT 18933- 18934.) Asfor why appellant committed the crimes, Woods believed that, at the time, appellant was experiencing an extreme emotional disturbance. Further, appellant’s drug use caused him to misperceive reality, which led to paranoid ideations and aggressions. (90 RT 18930.) That did not mean, however, that appellant was incapable of planning or deliberating. (90 RT 18930.) Appellant could plan, but his paranoid ideations and aggressions propelled him to act out violently. (90RT 18930.) Woods believed that appellant was impaired right up until the day of his arrest. (90 RT 18939.) Yet, when asked about someofappellant’s actions in carrying out the crimes, Woods acknowledgedthe acts did not necessarily reflect paranoia; only unusual aggression. (90 RT 18969; 91 RT 19046.) As for whether appellant’s letters to his family a few years before displayed signs of aggression, Woodssaid they evinced extreme viciousness—onboth ends of the correspondence. (91 RT 19057.) In short, the four violent days of appellant’s 35-year life were attributable to methamphetamine impairment. (91 RT 19079.) However, Woodsbelieved that appellant knew right from wrong and could appreciate the nature of his actions. (91 RT 19055.) With respect to appellant’s crimes, while appellant was able to plan and carry out the crimes, Woodsdid not believe the crimes were well thought out. As an example, Woodspointed to the murder of Stephen Chacko. Woods opinedthat, although appellant shot Chackofive times and shot at the register twice, the fact that there were nine additional shots that did not strike Chacko meantthat the crime wasnot the product of good planning. (90 RT 18971.) Even though Chacko was runningforhis life as 91 appellant chased him while firing athim, this did not alter Woods’s view. (91 RT 19002-19003.) The same held true for the murders of Jun Gao and Besun Yu. (90 RT 18973.) Woods believed that, although Yu also died from the gunshot wounds,the trajectory and angle of the wounds- manifested poor planning. (91 RT 19009-19011.) He said the same of appellant’s murder of James Loper. (91 RT 19059.) As examples of the “bizarre” nature of appellant’s behavior in carrying out the crimes, Woods pointed to appellant having thrown the register from the Village Oaks Market onto the freeway, as well as the fact that he killed Loperto get his job back. (91 RT 19078-19079.) Whenaskedby the prosecutor if appellant explained his writings in “Biography of a Crime Spree” to Woods during the time Woods interviewed appellant, Woods said that appellant attributed them to the fact that methamphetamine had destroyed his heart. (91 RT 18997.) Woodsobserved that appellant gained clarity and an appreciation of his actions, while he wasin jail and not using drugs. (90 RT 18935.) In Woods’sopinion, appellant was truly remorseful. He was very emotional and cried a lot. (90 RT 18936.) Doctor David Lisak was a psychologist from Boston whotestified as an expert in clinical psychologyrelating to sexual trauma on male adolescent development. (91 RT 19090-19091, 19098-19099.) Lisak did not interview appellant. Nordid he know anything about the case. (91 RT 19108, 19130-19131.) In mostof the other capital cases in which Lisak testified for the defense, he evaluated the defendants by taking a childhood history and ascertaining the effects of abuse on their development. He did not do that here and could not offer an opinion specific to appellant. (91 RT 19134, 19146.) . Lisak explained that the long-term psychological effects of sexual trauma included long-standing fears, anxieties, phobias, vulnerability to 92 depression and substanceabuse, inability to form relationships, and deep shame and humiliation. (91 RT 19100-19001, 19115.) Molestation could also affect self-esteem and self-worth. (91 RT 19108-19109.) The effects could last a lifetime. (91 RT 19112.) Whenthe abuse occurred during adolescence, especially ifit is the victim’s first sexual experience, it could interfere with identity development. (91 RT 19102, 19117-19118.) Oral copulation was one of the more intrusive forms of abuse. (91 RT 19103.) Further, hypothetically speaking, if a youth was abused byhis probation officer, it might affect the victim’s view of authority and could foster distrust of authority. (91 RT 19107.) Yet, Lisak was unaware ofany details relating to appellant’s incarcerations or his conduct during those periods. (91 RT 19145.) Lisak opined that there was a link between molestation and violence. (91 RT 19119.) Approximately 15 percent ofmen were molested as boys and, of that group, about 35 percent go on to commit violence. (91 RT 19120.) Yet, none of the studies with which Lisak was familiar related sexual abuse to murder. (91 RT 19122, 19138-19139.) D. Correctional Officers’ Testimony Judy Perez was a correctional officer with the San Joaquin County Sheriff's Department. She met appellant when he wasarrested in 1997. (89 RT 18649.) Appellant was housed in the maximum security part of the jail. (89 RT 18657-18658.) At all times, he wasto be supervised by three correctional officers. (89 RT 18655.) Perez had contact with appellant for about a year while he wasin jail. (89 RT 18649-18650.) She described appellant as quiet, obedient, polite, cooperative, cordial, and respectful. (89 RT 18650-18651.) For the most part, Perez knew that she was not going to have any problems supervising appellant. (89 RT 18654.) Perez observedthat, at times, appellant appeared sad. (89 RT 18652.) 93 While correctional officers were sometimes exposed to negative conduct by maximum security inmates, appellant did not engage in such conduct. (89 RT 18660-18661.) Johnny Johnson, also a correctional officer with the San Joaquin County Sheriff's Department, stated that appellant never gave him any problems during the time that Johnson supervised him. (90 RT 18830.) He and appellant got along fairly well. (90 RT 18831.) Johnson explainedthat, given appellant’s high-security status, he had to be shackled whenever he was moved. Appellant went through this process repeatedly without any problems. (90 RT 18832-18835.) Nor did appellant pose problems when undergoing strip searches. (90 RT 18836-18837.) Johnson never saw appellant behave violently or aggressively. (90 RT 18833.) However, security procedures in the maximum-security unit were designed to minimize or eliminate the potential for inmates to becomeviolent or aggressive. (90 RT 18442.) Appellant was one of the better-behaved maximum-security inmates. (90 RT 18838.) Deputies Gary Sanchez and William Westontestified largely in accord with the other correctional officers concerning appellant’s attitude and conduct during his confinementin jail. (91 RT 19155-1962, 19175- 19182.) James Esten wasa retired California state prison corrections officer. Healso workedin the prisons as a correctional counselor, a housing unit supervisor, and inmate appeals investigator. (91 RT 19184-19197.) He was familiar with 28 of the 32 state prisons andthe rules pertaining to inmate classification, including death-eligible inmates. Esten testified as an expert on whether appellant—a death-eligible inmate—could adapt to a life-without-parole prison sentence. (91 RT 19199-19203.) To be able to do so, Esten evaluated appellant’s criminal history, including his conductin penal institutions. (92 RT 19224.) 94 Esten detailed the classification and housing system at California prisons, including the type of high-security prison where appellant would be housed, if he were sent to prison for life. (92 RT 19239-19267.) Although drugs were available in prison, it was muchless so than in society at large. The most popular drugs were marijuana and heroin. (92 RT 19277-19278.) Beyondthe logistical difficulties of getting drugs, inmates also had a financial barrier to obtaining them. (92 RT 19278.) As for weapons, inmates manufactured them, but measures were taken to minimize this happening. (92 RT 19279.) “For the mostpart,” guns were not available in prison. (92 RT 19279-19280.) There was nothing about the nature of appellant’s crimes that would cause problems for him in prison. (92 RT 19281.) Esten’s opinion would be different had appellant stabbed or strangled his victims since those types of offenses can—and were—committed in prison. (92 RT 19282.) After interviewing appellant and reviewing his history, Esten opined that if appellant were sentencedto life without parole, he would adapt peacefully to a maximum-security setting until he died a natural death or waskilled by another inmate. (92 RT 19235-19236, 19283.) However, Esten was not familiar with all the facts of appellant’s crimes and could not’ predict with absolute certainty whether appellant would becomeviolent in the future. (92 RT 19238, 19287-19288.) VII. PENALTY PHASE RETRIAL: PROSECUTION REBUTTAL Doctor Helen Mayberg,a clinical neurologist and expert in the areas of neurology, PET and SPECTscanning, and nuclear imaging (93 RT 19540-19541), testified largely in accord with her guilt phase testimony. Maybergdisagreed with Doctor Wu and Amen’s conclusions. Her differential diagnosis was that appellant’s scans revealed “overall a normal, absolute range of metabolism.” (93 RT 19562.) While there was mild right frontal and right cingulate lobe low metabolism, no neurobiologic or 95 psychiatric diagnosis was indicated. (93 RT 19581-19582.) In short, Maybergopinedthat the best evidence that appellant’s brain was functioning properly was the evidence of the crimes themselves. (93 RT 19594.) In Mayberg’s view,if the scans reflected any neurobiological condition, it was possibly depression. Given that the scans were administered a year after appellant was incarcerated, they were consistent with sadness or depression. (93 RT 19581-19582.) Mayberg explained that when an individual was depressed, his or her attention span became very distracted and depression could lead to impairment ofmany functions of the frontal lobe. (93 RT 19595-19596.) Nonetheless, appellant’s complete scan pattern was not necessarily indicative of depression. (93 RT 19734.) Further, Mayberg disagreed with the defense experts’ assertions that appellant’s PET and SPECTscans corroborated each other. The scans did not show the sameareas of the brain as being abnormal. (93 RT 19557, 19584-19585.) Wu pointed to abnormalities in the higher portion ofthe prefrontal cortex, which involved planning and organization. (93 RT 19587.) Yet, Amen’s testimony, based on the SPECT scans, wasthat the lowerpart of lobe reflected abnormalactivity. (93 RT 19588.) Also, Mayberg explained that the defense exhibits generated from the scans were misleading. The three-dimensional PET scan exhibits essentially conflated the images of each memberofthe control group with the normalirregularities from appellant’s scan. (93 RT 19557-19565.) In fact, some of the individual scans from the control group exhibited the same normalvariation as appellant’s, including hypometabolism. (93 RT 19604.) As for Amen’s SPECT scans and conclusions, they showedthat appellant’s brain function seemed to worsen overthe time that he was 96 incarcerated, which was counterintuitive since he wasnot ingesting drugs. (93 RT 19589.) Maybergclarified that the scientific community had yetto identify a part of the brain that was responsible for aggression. (93 RT 19608-19609.) Appellant’s frontal lobe irregularity was not in an area commonly linked to aggression; the area was associated with apathy and passivity. (93 RT 19613.) In cases where there was frontal lobe damage or damage to the limbic system that resulted in aggression, it was typically impulsive and explosive aggression. (93 RT 19614, 19714.) On the other hand, appellant’s aggression was planned and not consistent with brain damage, acute intoxication, or other drug-related issues. (93 RT 19615.) While the murders occurred over a two-weekperiod, the auto burglary of Michael King’s van and theft of his gun occurred in June. Three monthslater, appellant committed the shooting at Cal Spray. Five weeks later came the bank robbery. Another five days passed before he murdered James Loper. (93 RT 19691-19692.) On the contrary, considering appellant’s history, his crimes represented an increasing pattern of violence over many years that escalated during the five-month period preceding his arrest. (93 RT 19692.) Doctor Kent Rogerson—boardcertified in psychiatry and neurology—teprised muchofhis expert testimony from the guilt phase. Rogerson was in charge of mental health community services in San Joaquin County and frequently did work for the courts regarding competencyevaluations. (94 RT19765-1967.) Over the previous 25 years of his career, Rogersontestified about 100 times, conservatively speaking. (94 RT 19766.) He explained that it was unusual that the prosecution retained him in this case because, typically, he testified as a neutral and whennotin that capacity, it was for the defense. (94 RT 19768-19769.) Rogerson detailed his mental status evaluation of appellant, including his interview with him and comments appellant made about the crimes. (94 97 RT 19776-19787.) As for major psychiatric or mental disorders, Rogerson’s diagnosis of appellant was that he was methamphetamine- dependent with evidence of acute or chronic withdrawal symptoms. Appellant also exhibited an antisocial personality disorder with schizoid traits. (94 RT 19790.) The latter disorder manifested itself as a pervasive pattern of disregard for the rights of others. Typically, antisocial personality types, such as appellant, had problems with the law and exhibited criminality. (94 RT 19792.) Rogerson opined that Doctor Krop’s evaluation of appellant as a teenager revealed the genesis of appellant’s antisocial personality disorder. (94 RT 19838.) Individuals with antisocial personality disorder were capable of committing heinous acts because they hadlittle or no empathy for others. (94 RT 19884-19885.) Rogerson noted that appellant showed no objective signs of psychosis or paranoia. (94 RT 19795-19796.) In Rogerson’s opinion, appellant’s crimes indicated goal-directed conduct with motive. His conduct in committing the crimes was not impulsive. (94 RT 19793-19794.) As for whether appellant’s dysfunctional family backgroundorhis methamphetamine addiction were responsible for his crimes, Rogerson observedthat, in his experience, others with similar backgrounds made more law-abiding choices and these issues did not necessarily dictate appellant’s course of conduct. (94 RT 19846-19848.) In fact, Doctor Krop’s report concluded that appellant appeared to haveintellectual potential and his judgment wasnotsignificantly impaired. (94 RT 19888.) Rogerson elaborated that, although there was little question that appellant’s later problems with methamphetamine abuse seriously impacted his life, he was capable of cognitively and intellectually making decisions to hurt someone. Appellant’s writings and reaction to his crimes indicated that he committed the crimes for notoriety and to feel special, given his 98 feelings of inadequacy, which stemmed from being treated poorly as a child. Once appellant figured out that he could harm people and not feel badly aboutit, he kept doing it. (94 RT 19852, 19894.) ARGUMENT 1. APPELLANT’S PRETRIAL MOTION TO DISQUALIFY JUDGE PLATT WAS PROPERLY DENIED In his opening claim, appellant contends the trial court committed error whenit denied his motion to disqualify Judge Platt based on three separate ex parte communications that occurred between the judge and other individuals. (AOB 87-97.) Accordingly, he alleges that his constitutional rights to due process oflaw,a fair trial, an impartial judge, and a non-arbitrary guilt, death-eligibility, and penalty determination were abridged. (AOB 97.) Not so. Thetrial court properly denied the disqualification motion because the record did not demonstrate that the ex parte communications showed a probability of actual bias on the part of Judge Platt. Therefore, appellant’s constitutional rights were not violated. A. Procedural History OnNovember6, 1998,” appellant movedto disqualify Judge Platt pursuant to Code of Civil Procedure section 170.1, former subdivision (a)(6)(C) (now subd. (a)(6)(A)(iii)), which requires disqualificationif, “(flor any reason. . . a person aware of the facts might reasonably entertain a doubtthat the judge would be able to be impartial.” (3 CT 763-775; 1 RT 111-112.) The disqualification motion was based on several ex parte communications. One occurred between Judge Platt and Deputy District !2 The relevant events for this claim occurred in 1998, unless . otherwise noted. 99 Attorney Lester Fleming, supervisor of the Homicide Unit, concerning the San Joaquin District Attorney’s position on a probable change of venue motion. (3 CT 766-767.) Another conversation took place with the Honorable Stephen Demetras of the San Joaquin County Superior Court. Judge Demetras was responsible for Penal Code section 987.9 funding requests. (3 CT 767.) The third ex parte communication occurred with Patrick Piggott, counsel for appellant’s wife, which occurred at the preliminary hearing and regarded the issue of whether appellant’s wife would invoke her spousal privilege notto testify at the hearing. (3 CT 767- 768.) On November10, San Joaquin County Counselfiled an answerto the disqualification motion. (4 CT 875-878.) Also that day, Judge Platt filed a declaration (3 CT 803-806; 1 RT 114), as did Deputy District Attorney Fleming (4 CT 872-874). In his declaration, Judge Platt acknowledged the conversation with Fleming. He explained that the conversation occurred either in the hallway or outside the courthouse and possibly during the lunch hour. (3 CT 804- 805.) Thetrial prosecutor, George Dunlap, was unavailable and so the judge asked Flemingifhis office was going to oppose a possible change of venue motion. Fleming said the District Attorney would oppose such a motion, if it were made. (3 CT 804-805.) The contact lasted about 5 to 10 seconds. The judge did not express an opinion abouta possible venue change. Nordid the judge discuss his previous work as a prosecutor on capital cases involving a venue change. The purpose of the discussion was to aid the judge in scheduling the motion and providing sufficient time to consider the issue. (3 CT 805.) | Asfor the conversation with Judge Demetras, Judge Platt explained that it occurred on September 16, as they encountered one another on the way to court. Judge Demetras asked Judge Platt if the District Attorney 100 was going to oppose a venue change. Judge Platt said that it appeared so. There was no discussion about funding applications or monies pertaining to the case. (3 CT 805.) With respect to Patrick Piggott, Judge Platt said that Piggott approachedthe bench during the preliminary hearing to discuss potential scheduling problems. Healso told the judge that Carol Peoples would invoke the spousal privilege. Judge Platt alerted the parties and the issue of the privilege invocation was heard in the presence of defense counsel and the prosecutor. (3 CT 805-806.) Judge Platt declared that he was not biased or prejudiced against appellant. (3 CT 803.) He explained that, as a judge, he had made hundreds of rulings contrary to the District Attorney’s position. During his legal career, Judge Platt worked as a prosecutor and a defense attorney. (3 CT 806.) Deputy District Attorney Fleming declared that the conversation in question took place in Mayor June, on the sidewalk outside the courthouse, as he and the judge were walking in opposite directions. Judge Platt asked Flemingifthe District Attorney was going to oppose the venue motion. Flemingreplied in the affirmative. (4 CT 872.) Based,in part, on Judge Platt’s declaration, County Counsel argued there was no factual showing ofactual bias or that a person aware ofthe facts might reasonably entertain a doubt about Judge Platt’s ability to be impartial. (4 CT 877.) Additionally, County Counsel contended that Judge Platt could not be disqualified based on his having workedas a prosecutor before becoming a judge. (4 CT 877-878.) Last, County Counsel pointed out that Judge Plant properly litigated the issue of spousal privilege in the presence of both counsel. A copy of the relevant transcript was attached to the answer. (4 CT 878.) 101 On November13, the District Attorney joined in County Counsel’s answerto the disqualification motion. (4 CT 890-891.) That day, defense trial counsel, Michael Fox,filed a supplemental declaration (4 CT 882-885) and defense investigator Michael Kale also filed a declaration (4 CT 886- 888). | Foxasked that the hearing court take judicial notice of Peoplev. Gordon, a capital case in which Judge Platt was the prosecuting attorney. Fox asserted that, in that case, Judge Platt had an ex parte communication with Judge Demetras, the judge presiding overthe case, which resulted in Judge Demetras being replaced. The case was granted a change of venue from San Joaquin County. (4 CT 882-883.) In his declaration, Michael Kale detailed his interview with Deputy District Attorney Fleming, which took place in October. Fleming told Kale the conversation with Judge Platt was brief and may have occurred outside the courthouse during the lunch hour. (4 CT 887.) Fleming had the impression that Judge Platt was not in favor of a venue change andthat such a motion would beclosely scrutinized and not granted unless absolutely necessary. (4 CT 887.) The judge may have mentioned his experience with the People v. Gordon and People v. Caputo capital cases as a prosecutor, or Fleming said he may haverecalled the judge’s involvement independently of their conversation. (4 CT 887.) Fleming told the judge that the District Attorney’s Office would oppose a change of venue. (4 CT 887.) Fleming told Kale that he did his best to recall the conversation, which wasbrief and which had occurred some months before. (4 CT 887.) Kale also spoke to Piggott, who confirmed that he approached Judge Platt on the morning of the preliminary hearing and advised him that Carol Peoples would assert her privilege not to testify. (4 CT 888.) Piggott did this so he did not surprise the judge during the hearing and to avoid “showboating” when Carol was called to the stand. (4 CT 887-888.) They 102 had a brief discussion about applicable code sections and Piggott provided the judge with copies of those code sections. (4 CT 888.) Pursuant to established procedure, the Honorable Duane Martin ofthe San Joaquin County Superior Court was assigned to hear the disqualification motion. (4 CT 897; 1 RT 120, 123-124.) On November 18, the parties advised the court that the matter would be submitted on the documents, without an evidentiary hearing. (IRT 124-126.) On November 20, Judge Martin heard the disqualification motion. (4 CT 899.) In addition to the papers filed by the parties, the court read the transcripts of the proceedings on August 7 and August 17, regarding the venue issue. (1 RT 129-130.) Defense Attorney Fox argued in accord with his filings on behalf of appellant. (1RT 130-137.) Additionally, he contendedthat the declarations of Judge Platt and Lester Fleming were contradictory on somepoints. (1 RT 133.) Judge Martin told Fox that he wasfamiliar with Judge Platt’s involvement with the Gordon case. (1 RT 135-136.) In concluding his argument, Fox said the following: “It is the appearance—andI just stress that word, I can’t stress it enough—itis the appearance of impropriety that creates such doubt regarding a judge’s impartiality.” (1 RT 137.) County Counsel’s Chief Deputy, Robyn Truitt, reiterated that Judge Platt’s previous occupation as a prosecutor did not, alone, require his disqualification. (1 RT 137.) Truitt maintained that the judge’s discussion with Fleming about venue centered on the judge’s concern about scheduling. The transcripts of the relevant proceedings made clear that there was no prejudice or bias against appellant. (1 RT 138.) — Deputy District Attorney Dunlap addressed the court briefly and joined County Counsel’s argument. (1 RT 139-140.) 103 Fox responded and reiterated that the circumstances gaverise to the appearance of “some impropriety” and that Judge Platt was not “completely impartial.” (1 RT 141 [“I’m just saying that based on appearances ... .”].) Judge Martin began his remarks by noting that the legal question was governed by an objective standard. (1 RT 142.) With respect to Judge Platt’s discussion with Piggott, the court found that the judge and attorney were “bending over backwards”not to generate controversy around Carol Peoples’s involvement in the case, which would be publicized and which might serve to prejudice the jury pool. (1 RT 142.) Judge Martin found that the average memberofthe public would believe that Judge Platt was doing the best he could to preserve the procedural integrity of the case, without delving into the merits. (1 RT 143.) With respect to Judge Platt’s conversation with Judge Demetras, the court found that Judge Demetras’s commentor question to Judge Platt about the defense trying to move the case did not concern the merits. Instead, it seemed that it was a typical remark one judge might maketo another about a case. (1 RT 144.) Regarding the conversation with Deputy District Attorney Fleming, Judge,Martin first noted that it took place in public and by happenstance. (1 RT 145, 153.) The declarations indicated that the conversation may have occurred overthe lunch hour and that Fleming’s wife was present, which suggested that Judge Platt encountered Fleming as Fleming was having lunch with his wife. (1 RT 145, 154.) The court noted that Judge Platt’s comments werein service of ascertaining whether time would needto be allotted for extended hearings on the subject. (1 RT 146.) After reading the relevant transcripts and declarations, Judge Martin found that the average person would see the conversation as an effort on Judge Platt’s part: to anticipate the effect on the court’s calendar,if the prosecution opposed the venue change motion. The reasonable person would not conclude from 104 the conversation that Judge Platt was biased or prejudiced against appellant. (1 RT 146-150.) Accordingly, Judge Martin denied the motion. (4 CT 899; 1 RT 151-152.) Although defense counsel expressed his disappointment with the ruling (1 RT 154), appellant acknowledgesthat he did notpetition for a writ _ of mandate as statutorily required (AOB 95). B. Appellant Has Failed to Show a Probability of Actual Bias Although an order denying a motion to disqualify a judge, made pursuant to Code of Civil Procedure section 170.3, subdivision (d),'? is not reviewable on appeal, section 170.3, subdivision (d), does not bar review on appeal of nonstatutory claims that a final judgmentis unconstitutionally invalid because ofjudicial bias. (People v. Brown (1993) 6 Cal.4th 322, 335.) While appellant’s nonstatutory due process claim is reviewable,it is nonetheless without merit. A defendant has a due process right under the state and federal Constitutions to an impartial trial judge. (Arizona v. Fulminante (1991) 499 U.S. 279, 309; People v. Brown, supra, 6 Cal.4th at p. 332.) Recently, in People v. Cowan (2010) 50 Cal.4th 401 (Cowan),this Court explained the requisite showing for a nonstatutory due process claim ofjudicial bias. Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii) provides “‘an explicit ground for judicial disqualification” based on “‘a public perception ofpartiality, that is, the appearance ofbias.’ [Citation].” (Cowan, supra, 50 Cal.4th at 456.) However, the Court, citing 'S California Code of Civil Procedure section 170.3, subdivision (d) states, in part: “The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought only bythe parties to the proceeding.” 105 its earlier decision in People v. Freeman (2010) 47 Cal.4th 993 andthe United States Supreme Court’s decision, in Caperton v. A. T. Massey Coal Co. (2009) 556 U.S. ___ [129 S. Ct. 2252] (Caperton), observed that “the due process clause operates more narrowly.” (Cowan, supra, at 456.) The Supreme Court clarified that the mere appearance of bias would not suffice for judicial disqualification. Instead, there must be the probability of actual bias, which is objectively assessed based on the circumstancesin a particular case. (/bid., citing Caperton, supra, 556 U.S. at p.___ [129 S.Ct. 2259].) A claim relating only to the appearanceofbias is to be pursued understate disqualification statutes, with resort to the Constitution being a rarity. (Ibid., citing Caperton, supra, 556 U.S. atp.____ [129 S.Ct. at p. 2267].) The high court madeclearthat only the most “extreme facts” would support judicial qualification. (Cowan, supra, at p. 457,citing Caperton, supra, 556 U.S. atpp.__,__—_—=«[129 S.Ct. at pp. 2265, 2266], internal quotation marks omitted.) Asa threshold matter, appellant attempts to import other claims of judicial bias into his argumentthat the trial court erred in denying his disqualification motion. (AOB 97 [“Asset forth in detail in Arguments L- IV, post, Judge Platt demonstrated prejudice against defense counsel and appellant ...”].) The issue presented by appellant’s first claim concerns the ex parte communicationsallegedin the disqualification motion. In that regard, as a nonstatutory due process claim, appellant has failed to present this Court with “extremefacts,” which demonstrate a probability of actual bias sufficient to overturn the trial court’s denial of the motion. Further, at the hearing on the disqualification motion, defense counsel argued the statutory standard. Onat least two occasions, defense counsel cited the “appearance”ofbias or impropriety on the part of the judge. (1 RT 137, 141.) Asstated above, the appearanceofbias does notsuffice to 106 establish judicial bias under the due process clause of the Constitution. (Cowan, supra, 50 Cal.4th at p. 456.) Applying thecorrect standard, appellant has failed to show the probability of actual bias. As the hearing court did, Judge Platt’s conversations with Lester Fleming and Judge Demetras, on the issue of a possible venue change, should be consideredin the context of the hearings, which preceded the conversation. At the August 7 hearing, Judge Platt expressed his concerns to the parties about expending taxpayer funds for jury selection in the county,if the case was ultimately moved. (1 RT 18- - 20.) The court attempted to ascertain the defense and prosecution positions on a change of venue because it would impact not only funding issues, but also scheduling. (1 RT 19-22.) The prosecutortold the court that the District Attorney was not prepared to committo a position at that time. (1 RT 26.) The court expended considerable effort to secure some agreement from the parties on howto litigate the issue in an efficient manner. (1 RT 27-56.) On August 17, the court and parties revisited the issue. During the course of the dialogue, Judge Platt, responding to the prosecutor’s consternation with the defense position on the matter, stated: I think Mr. Fox [defense counsel] has an obligation to do what he has to do. If he can convinceor put together some facts and figures that even if J disagree with it he’s established a record, that’s still his obligation. And in a case of this magnitude,thatis absolutely what is mandated. And I [] don’t have a problem with it. I don’t like it, but I don’t have a problem with it. That’s what wehaveto do. (1 RT 62.) Asviewed against this factual backdrop, there was nothing about Judge Platt’s conversation with Lester Fleming, which would suggest the probability of actual bias. Instead, the relevant declarations and the transcripts demonstrate that Judge Platt, as the presiding judge of a high- profile capital case, was trying to assess the likelihood of a contested venue 107 motion and the implications for the expenditure of taxpayer funds and for the trial schedule. Judge Platt madeclear that, regardless of his personal views on the matter, he would ensure that defense counsel wasable to fulfill his obligations to appellant. Norwas there anything about the content of the communications with Judge Demetras and Patrick Piggott that indicated the probability of actual bias. Judge Platt merely responded to Judge Demetras’s question andtold him that the prosecution intended to oppose a motion to change venue. (3 CT 805.) As for the conversation with Piggott, the attorney approachedthe judge to give him advance notice about Carol Peoples’s intention to invoke her privilege notto testify at the preliminary hearing so that the matter could be handled appropriately. (3 CT 805-806.) Moreover, in all three instances, the conversations were brief (3 CT 805-806; 4 CT 872, 877), and those involving Judge Demetras and Lester Fleming were chance encounters—in the courthouse hallway and outside the courthouse, respectively (3 CT 804-805; 4 CT 872). In the case of Piggott, it was Piggott who approachedthe judge andinitiated the conversation. (3 CT 805-806.) In short, there was nothing in these limited exchangesthat indicated a lack of impartiality by Judge Platt. (See People v. Mendoza (2010) 24 Cal.4th 130, 196-197 [finding no bias regarding an ex parte meeting between judge and prosecutor on question ofjury misconduct]; People v. Brown, supra, 6 Cal.4th at pp. 328-329, 336-337 [fact that trial judge made ex parte contacts with counsel and investigator, telling them their efforts to contact jurors were a waste of time and money becauseirrelevant to hearing on modification of death verdict, does not establish bias].) On the contrary, Judge Platt was mindful to avoid off-the-record discussions so as not to “conduct the case in a telephone booth.” (8 RT 1682.) Further, in keeping with the mandate of due process and fairness, 108 the court disclosed a personal association it had with a police witness. (9 RT 1843-1845.) In sum, appellant’s disqualification motion was properly denied because the record does not establish the probability that Judge Platt was actually biased against appellant. Accordingly, his state and federal constitutional right to due process wasnotviolated. Further, to the extent that appellant contends, in conclusory fashion, that his other state and federal constitutional rights were violated by the denial of his disqualification motion (AOB 97), his contention is unsupported by the record and without merit. II. APPELLANT’S CLAIM THAT THE TRIAL COURT ERRONEOUSLY DENIED HIS RECUSAL AND MISTRIAL MOTIONSIS BARRED,BUT, IN ANY EVENT, THE CLAIM IS: WITHOUT MERIT AS THE MOTIONS WERE PROPERLY DENIED Appellant next contendsthat, during the pendencyofthe first penalty phase,thetrial court erroneously denied his motions for a mistrial and for recusal of Judge Platt. The motions were based on JudgePlatt’s physical condition, the jury’s knowledge thereof, and the restrictiveeffect of this situation on defense counsel’s advocacy. Accordingly, appellant contends the errors resulted in violationsof his state and federal constitutional rights. (AOB 98-112.) Respondentdisagrees. In the first instance, appellant’s claim is moot becauseit pertainsto the first penalty phasetrial, which did not produce a verdict. If not moot, the claim is forfeited because appellant’s motions were not renewed when JudgePlatt returned to preside over the penalty phaseretrial. If not moot or forfeited, appellant’s claim has no merit becausethe trial court properly exercisedits discretion in denying the motions. 109 A. Procedural History On August 18, 1999,"at the start of the first penalty phase, in explaining schedule changes, Judge Platt informed the jury that in the previous month he suffered a mild heart attack, which hadinitially gone undiagnosed. (52 RT 10700-10701.) The judge reassured the jury that it was not a major concern andthat everything was fine. (52 RT 10701.) Judge Platt wanted the jury to understand that the scheduling issues were his fault and, by implication, not that of the parties. (52 RT 10701.) He then moved on to discuss the near-term schedule. (52 RT 10701-10705.) Opening statements were presented later that day. (52 RT 10761-10807.) The next morning, on August 19, defense counsel Foxfiled separate motions for a mistrial and for recusal of Judge Platt, the latter pursuant to Code of Civil Procedure sections 170.1, subdivisions (a)(6)(A)(i), (a)(7).° (8 CT 2227-2234; 52 RT 10814.) Fox’s affidavit in support of the recusal motion stated that Judge Platt informed counsel that he was on medication and told by his doctor to reduce stress and changehis diet. (8 CT 2229-2230.) Fox further stated that he was informedbythe court’s clerk that Judge Platt’s doctor asked the clerk to be aware of certain physical symptomsandto call for medical | assistance should they occur. (8 CT 2230.) Since the court had informed the jury about his heart attack, Fox feared that if he disagreed with the court in the jury’s presence, the jurors might misperceive him as being insensitive ‘4 The relevant events for this claim occurred in 1999, unless otherwise noted. . '° Subdivision (a)(6)(A)(i) provides for disqualification when “[t]he judge believes his or her recusal would further the interests ofjustice.” Subdivision (a)(7) provides for disqualification when “[b]y reason of permanent or temporary physical impairment, the judge is unable to properly perceive the evidence or is unable to properly conduct the proceeding.” 110 to the court, which would serveto restrict his representation of appellant. (8 CT 2230-2231.) In the motion for a mistrial, Fox contended that the judge, having informedthe jury of his heart attack, put defense counselin a difficult position when, afterward, the court impermissibly restricted his opening statement. Given what the judge hadtold the jury about his physical condition, Fox felt he neededto refrain from disagreeing with the court for fear that he would lose credibility with the jury, as the jurors might feel protective of the judge. In short, the issue of the judge’s health had a chilling effect on Fox’s advocacy on behalf of appellant. (8 CT 2232-2233.) Judge Platt advised counsel that the recusal motion would need to be heard by the presiding judge. (52 RT 108 14, 10816.) However, Judge Platt madeclearthat, if there were any question abouthis health impacting the trial, he would recuse himself. He reiterated that his ability to continue to preside overthe trial was not compromisedin any fashion. (52 RT 10816.) Asfor the motion for mistrial, Judge Platt stated that his rulings on the prosecutor’s objections during defense counsel’s opening statement were correct. (52 RT 10815-10816.) Further, the judge explained that he told the jury about his health issue because he was concemedthat the jury may have overheard a discussion the court had with its staff about the matter. The judge wanted to allay any fears on the part of the jury. (52 RT 10815.) Also, the court clarified that to the extent that stress contributed to his health issue, it was stress unrelated to counsel or thetrial in general andthis was communicated to the jury. (52 RT 10815-10816.) The court denied the motion for a mistrial. Whenthetrial resumed, Judge Platt reassured the jury that his health wasfine and should be of no concern. (52 RT 10825-10826.) Also, during a break in the proceedings, the court advised the parties that his doctor had 111 faxed a medical clearance, which would be incorporated into the response to the recusal motion. (52 RT 10855.) Atthe start of the afternoon session on August 19, the court informed counsel that it had conferred with San Joaquin County Counsel about the recusal motion. Pursuant to Code of Civil Procedure section 170.4, subdivision (b),'° the court ordered the motion and supporting declaration stricken for failure to state sufficient legal grounds. (52 RT 10865-10866.) Pursuant to Code of Civil Procedure section 170.4, subdivision (c),"” court ordered that thetrial continue. (52 RT 10866.) The court advised the parties that it was also forwarding the recusal motion to the presiding judge of the Alameda County Superior Court and that the doctor’s clearance _ would bepart of thetrial court’s verified response. (52 RT 10866.) The judgelater read the letter into the record. (52 RT 10892.) On the afternoon of Monday, August 23, the Honorable Alfred Delucchi of the Alameda County Superior Court informedthe parties that Judge Platt had suffered a heart attack over the weekend and was scheduled for open heart surgery the next morning. (53 RT 10929.) The presiding '© Code of Civil Procedure section 170.4, subdivision (b) provides, in relevant part: “[{I]f a statement of disqualification is untimelyfiled or if on its face it discloses no legal grounds for disqualification, thetrial judge against whom it wasfiled may orderit stricken.” '’ Code of Civil Procedure section 170.4, subdivision (\(1) provides, in relevantpart: “Ifa statement of disqualification is filed after a ’ trial or hearing has commencedbythestart of voir dire, by the swearing of the first witness or by the submission of a motion for decision, the judge whoseimpartiality has been questioned may orderthe trial or hearing to continue, notwithstanding the filing of the statement of disqualification. The issue of disqualification shall be referred to another judge for decision as provided in subdivision (a) of Section 170.3, andif it is determined that the judge is disqualified, all orders and rulings of the judge found to be disqualified made after the filing of the statement shall be vacated.” 112 judge, the Honorable Philip Sarkisian, assigned Judge Delucchi to the case until its completion or until Judge Platt returned. (53 RT 10929.) The next morning, on August 24, Judge Delucchi informedthe jury that Judge Platt suffered a heart attack the previous Saturday and that he was taking over for Judge Platt. (54 RT 10977.) On August 25, Judge Delucchi advised the parties that, due to Judge Platt’s medical emergency, Judge Platt was notable to file his verified responseto the recusal motion. Therefore, Judge Delucchi ordered that the relevant portions of the transcript, wherein Judge Platt provided a response on the record, be incorporated by reference. (54 RT 11005-11007.) Later in the day, Judge Delucchi advised the parties that San Joaquin County Counsel would file an answer shortly and that Judge Sarkisian would hear the recusal motion, unless there was an objection. (54 RT 11160-11161.) On August 27, County Counsel filed its response to the recusal motion. (8 CT 2256-2286.) In its response, County Counsel first argued that the recusal motion was moot because,after the recusal motion wasfiled, Judge Platt suffered a heart attack and was replaced by the Judge Delucchi. (8 CT 2256-2257.) Even if not moot, County Counsel argued there was no factual or legal basis to support recusalat the time, citing Judge Platt’s responses to the motion on the record.'® (8 CT 2257-2286.) On the morning of September 1, Judge Sarkisian heard the recusal motion. Defense counsel conceded the issue was moot given that Judge Delucchi had been assigned to take over for Judge Platt. (56 RT 11337.) Defense counselstated, “[W]e accept the proceedings that have occurred.” However, he noticed his objection should Judge Platt return and replace Judge Delucchi because,citing this Court’s decision in People v. Espinoza '8 The prosecutor did not observe anything that suggested Judge Platt was impaired. (52 RT 10817.) 113 [(1992) 3 Cal.4th 806], two judicial substitutions could not be madein the same capital case. (56 RT 11338.) Judge Sarkisian denied the recusal motion as moot due to Judge Platt’s physical condition. (56 RT 11338.) On September9, after evidence and argument were concludedin the first penalty phase, Judge Delucchi advised the parties that the court would invite Judge Platt to impose sentence, regardless of the jury’s verdict. (58 RT 11952.) The court explained that Judge Platt was “on the mend” and would be available in about six weeks. (58 RT 11952-11953.) Judge Delucchi observed that Judge Platt, having heard the guilt phase evidence, wasin better position to weigh the evidence, in the event there were a death verdict and related motions. (58 RT 11953.) Also, Judge Delucchi advised that Judge Platt was reading the dailies and it would be easier for Judge Platt to read three weeks ofdailies than it would be for Judge Delucchi to read two and one-half months worth of dailies. (58 RT 11953.) Defense counsel stated that he erred when he agreed with Judge Sarkisian’s ruling that the issue was moot. Fox contendedthat the issue was not mootand the recusal motion should have been granted. (58 RT 11954.) Fox reiterated that he was objecting to “a double switch,” based on People v. Espinoza. (58 RT 11954.) Judge Delucchi observedthat appellant’s due process rights were “more protected by having the [j]udge who headthe lion’s share ofthe trial go through the weighing process.” (58 RT 11955.) Fox responded that appellant’s due process rights were violated by having Judge Platt preside over the case. Judge Delucchi told Fox that he wasraising a different issue. (58 RT 11955.) On September 27, Judge Delucchi declared a mistrial, finding no reasonable probability that the jury could arrive at a verdict. (60 RT 12370- 12371.) The following day, Judge Sarkisian advised the parties that the penalty retrial was pending assignmentto a judge. The presiding judge of 114 the San Joaquin County Superior Court, the Honorable Thomas Teaford,Jr., would decide whether the retrial would be handled by a judge from that county or Alameda County. (60 RT 12376.) Judge Sarkisian advised ~ counsel that Judge Platt would be willing to resume his duties on the case in six to eight weeks, if his doctor allowed. (60 RT 12382.) After several proceedings on the matter of scheduling and assignment with respect to the retrial, on October 18, the Honorable Terrence Van Oss of the Alameda County Superior Court advised the parties that the penalty retrial was assigned to Judge Platt, given his familiarity with the case. (61 RT 12417.) On the morning ofNovember22, JudgePlatt returnedto the case. (61 RT 12425.) B. Mbootness And Forfeiture Asa threshold matter, appellant’s claim is moot because,as raised below, the motions for a mistrial and for recusal pertainedto the first penalty phase. However, there was no penalty verdict from this jury. (60 RT 12370-12371.) Therefore, the claim is moot.'? Appellant’s attempt to evade this bar by interjecting unrelated claims (AOB 112) should be rejected. Further, if not moot, appellant’s claim is forfeited with respect to Judge Platt’s involvementin the penalty phase retrial. When JudgePlatt '? Whether characterized as mootnessorlackofjusticiability, the overriding principle is the same: courts will not entertain actions where there is no actual controversy between the parties. (3 Witkin, Cal. Procedure (4th ed. 1997) Actions, § 73, pp. 132-133.) Insofar as appellant may contend that, but for the alleged errors, the first penalty phase jury would have returned a life-without-parole verdict, such an argument would rest on sheer speculation. It would be equally plausible that, had Judge Platt returned to preside overthe first penalty phase, the jury would have returned a life-without-parole verdict. 115 returned to preside over the penalty phase retrial, appellant did not renew either the motion for a mistrial or the recusal motion. Atthestart of the retrial, defense counsel was fully aware of all the facts appellant now cites in support of his claim. But, defense counsel did not moveto have Judge Platt disqualified once he was assignedto preside over the penalty phase retrial. He has, therefore, forfeited his claim to the extent that it encompasses Judge Platt’s involvementin the retrial. (People v. Scott (1997) 15 Cal.4th 1188, 1207.) So, in sum, appellant’s contention that the mistrial and recusal motions were improvidently denied is mootasto the first penalty phase and forfeited as to the penalty phaseretrial. Even if appellant’s claim is viable on appeal, it is without merit. C. The Recusal Motion and Motion for Mistrial Were Properly Denied Thetrial court’s decision to deny a recusal motion, even in a capital case, is reviewed for an abuse ofdiscretion. (People v. Gamache (2010) 48 Cal.4th 347, 361.) Here, there was no abuseofdiscretion. As thetrial court properly found, the recusal motion was moot because Judge Platt did not return to preside overthe first penalty phase. (56 RT 11337.) The basis for appellant’s recusal motion had been Judge Platt’s health, the jury’s awareness of the health issue, and defense counsel’s concern that he would lose credibility in the eyes ofthe jury, if he challenged Judge Platt during the rest of the trial. (8 CT 2230-2231.) As it turned out, Judge Delucchi was substituted in for Judge Platt at the start of the first penalty phase. 116 Hence, defense counsel correctly conceded the motion was moot.*? (56 RT 11337-11338.) Nonetheless, defense counsellater tried to resurrect the motion by reversing position and contending it was not moot, since the possibility existed that Judge Platt could return to preside overthe first penalty phase, thereby effecting a “double switch.” (58 RT 11954.) This did not occur. Therefore, concerns about a double substitution were unfounded and the motion remained moot. Accordingly, the trial court’s denial of the recusal motion wasa proper exercise of discretion. Further, although Judge Platt did return to preside over the penalty phaseretrial, it was a different jury and there was no similar concern about a chilling effect on defense counsel’s advocacy before this new jury. This explains defense counsel’s decision not to renew the recusal motion at the penalty retrial. Likewise,the trial court’s denial of appellant’s motion for a mistrial was proper. A trial court’s denial of a motion for a mistrial is also reviewed underthe deferential abuse-of-discretion standard. (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 314.) The gravamenof appellant’s motion for a mistrial was essentially the same as his motion for recusal. The only difference wasthat, in the former, appellant specifically contended the purported chilling effect resulted in an impermissiblerestriction of defense counsel’s opening statement. (8 CT 2232-2233.) | A closer look at the record of defense counsel’s opening statement supports the propriety ofthe trial court’s denial of the motion for a mistrial. Defense counsel began his statement as follows: *° This assumes the motion wasstill viable since JudgePlatt struck the pleadings for failure to state sufficient grounds. (52 RT 10865-10866.) 117 Myappealto a jury in a death penalty case is the most difficult thing that a lawyer can do in a career. It may be the most personal thing that one humanbeing [implores] anotherto do, not to kill. [{]] I have thought what I would say for a long, long time. I am coming to you at a moment when some of you could be favoring the death penalty and are favoring the death penalty. [{] You’re in a position that has faced only a select few, but this question has been put forth since ancient times, the calculated decision to kill. You have Louis’s life in your hands now. (52 RT 10780-10781.) The court sustained the prosecutor’s objection based on the argumentative nature of the comments. (52 RT 10781.) Defense counsel continued, “I come to you as a servant comes to a master.” The court sustained the prosecutor’s objection on the same grounds. (52 RT 10781.) After additional remarks and another sustained objection, defense counselsaid: Louissits there by operation of law because of your verdicts, he is condemnedto die in prison. He will never, ever get out. [{] The only question that remains for each and every oneofyouis, is God goingto set the date that Louis departs this earth - - (52 RT 10781-10782.) This time, the court overruled the prosecutor’s objection. (52 RT 10782.) Shortly afterward, defense counsel continued: “First, I believe that you cannotbegin to do the right thing in this case unless you honestly acknowledge your present feelings. You cannot go intothis next phase, the penalty phase, with a false sense of impartiality.” (52 RT 10783.) The - prosecutor objected on argumentative groundsandthetrial court, again, sustained the objection. (52 RT 10783.) Defense counselpersisted, “You are angry, you are outraged, and you are saddenedbyall of this - -” (52 RT 10783.) The court sustained another prosecution objection and then excusedthe jury. (52 RT 10783-10784.) The court explained to defense counselthat, in the first five minutes of his opening statement, there were “at least seven points of argument.” (52 RT 118 10784-10785.) The court also pointed out that it had sustained defense objections to several argumentative comments during the entirety of the prosecution’s opening statement. (52 RT 10784.) Defense counsel explained his objectionable comments as a “preamble.” (52 RT 10784.) Whatthis record reveals is twofold: 1) the court’s rulings were correct and fair to the parties and, 2) defense counsel was, in no way, cowed by any concerns about Judge Platt’s health. With respect to the latter point, despite numerous sustained objections, defense counsel persisted in making argumentative commentsto the jury during his opening statement. In short, if defense counsel’s opening statement wasrestricted in any fashion,it was in accord with the rules of argument and evidence.” Notably, at the time that Judge Sarkisian advised the parties that a decision had not yet been made abouta trial assignment for the penalty retrial, defense counsel accused the prosecution of being unhappy with Judge Platt and forum-shopping for a different judge. (60 RT 12380.) This is a further indication of the absence ofbias or prejudice against appellant on the part of Judge Platt. Since there was no abuse ofdiscretion in denying appellant’s motions, there was no federal constitutional error. (See People v. Staten (2000) 24 Cal.4th 434, 448, fn. 1 [finding no predicate error on which federal constitutional claims can be based].) Iti. JUDGE PLATT ENSURED THAT APPELLANT’S TRIALS WERE FAIR Appellant argues that Judge Platt, by virtue of his conduct over the course ofthetrial, “abused the trust of his judicial office, eviscerating appellant’s enumerated constitutional rights in the process. (AOB 115.) *! After complaining that the prosecutor enjoyed morelatitude during opening statements, defense counsel concededthat he did not make © objections during the prosecutor’s statement. (52 RT 10862.) 119 Specifically, appellant contends that the judge was abusive to defense counsel and engaged in a double standard, which benefitted the prosecution and prejudiced the defense. (AOB 118-135.) Appellant also maintainsthat the court made defense counsel a party to the prosecutor’s alleged improprieties and that this “pattern of transference” amounted to judicial misconduct. (AOB 135-146.) Next, appellant argues that the court denied his trial counsel the opportunity to make a record of the court’s alleged abusive practices. (AOB 146-157.) Last, as part of this same claim, appellant contendsthe trial court was without jurisdiction to impose the death penalty. (AOB 157-164.) Appellant’s claim fails because, whenthe record is reviewed in its entirety, there was nothing about Judge Platt’s conduct that communicated to the jury that he wasaligned with the prosecution or that he did not believe the defense evidence. Judge Platt ensured that the guilt phase and penalty phaseretrial were conducted in a mannerthat was fair to appellant. Further,the trial court was within its authority to consider and decide the motion to modify the verdict and impose the death penalty. A. General Legal Principles The reviewing court presumes the honesty andintegrity of those serving as judges. (People v. Chatman (2006) 38 Cal.4th 344, 364.) A claim ofjudicial bias requires a determination whetherajudge officiously and unnecessarily usurped the duties of the prosecutor and created the impression he wasallying himself with the prosecution. (People v. Clark (1992) 3 Cal.4th 41, 143.) Such judicial misconduct requires reversal when it rises to a level that communicates to the jury that defense evidenceis not believed by the judge. (People v. Sturm (2006) 37 Cal.4th 1218, 1233.) The appellate court’s role is not to determine whetherthetrial judge’s conductleft something to be desired, or even whether some comments would have beenbetter left unsaid; the appellate court must decide whether 120 the judge’s behavior wasso prejudicial that it denied the defendant a fair trial. (People v. Snow (2003) 30Cal.4th 43, 78.) When a claim ofjudicial misconduct or bias is made on appeal, the appellate court reviews the record to determine whether “‘the appearance ofjudicial bias and unfairness colors the entire record.’ [Citation.]” (People v. Geier (2007) 41 Cal.4th 555, 614, fn. 16.) B. Judge Platt’s Conduct Did Not Communicate to the Jury that He Disbelieved the Defense Evidenceor that He WasAllied with the Prosecution In this case, when the record is reviewedin its entirety, it © demonstrates that Judge Platt’s conduct did not serve to communicate to the guilt and penaltyretrial juries that the court was aligned with the prosecution or that it disbelieved the defense evidence. (See People v. Sturm, supra, 37 Cal.4th at p. 1233; People v. Clark, supra, 3 Cal.4th at p. 143.) | Notably, and dispositively, while appellant cites a numberof instances of what he purports to be examples ofjudicial bias and misconduct, he does not argue that the conduct in question communicated to the jury that the court disbelieved the defense evidence or had otherwiseallied itself with the prosecution. Appellant does, however, agree that this is the standard by which his claim is to be assessed. (AOB 163.) Further, in omitting those equally important parts of the record wherein the court demonstrated even-handedor favorable treatment of the defense, as well as stern or harsh treatment of the prosecutor, appellant presents a skewed and inaccurate impression of the record. When viewed as a whole, the record showsthat Judge Platt ensured that appellant receiveda fair trial. And, while there were instances when the judge’s demeanor or remarks—outside the presence of the jury—mayhave been ‘121 imperfect, at the end of the day, thejudge’s conduct comported with constitutional mandates. Judge Platt had an obligation to make certain the trial proceedings were completed in an orderly and efficient manner. Moreover, he possessed the authority to make sure this occurred. A trial court has _ inherent as well as statutory discretion to control the proceedings to ensure the efficacious administration ofjustice. (People v. Gonzalez (2006) 38 Cal.4th 932, 951; People v. Cox (1991) 53 Cal.3d 618, 700, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.; see Pen. Code, § 1044; Evid. Code,§ 765.) On numerousoccasions during trial, the court reminded the attorneys about the importance, and necessity, of litigating the case in an efficient and constructive manner. (8 RT 1510/58-1510/59; 9 RT 1946-1950, 1980-1983; 38 RT 7838-7842; 45 RT 9375-9376; 79 RT 16433.) In his claim, appellant focuses on the trial court’s conduct toward defense counsel. However, viewing the recordin its entirety,it is clear that the court, in attempting to control the proceedings and administer justice, also specifically lectured, admonished, or sanctioned the prosecutor. (3 RT 413: 4 RT 691 [defense counsel: “Judge, I object to the editorializing of the prosecutor.” Court: “Mr. Dunlap, ask the question. If you want to testify, get an attorney and take the stand.”]; 5 RT 989-990 [after prosecutor argued defense counsel engaged in a pattern of conduct, court stated: “Stay away from it, Mr. Dunlap.”]; 8 RT 1510/22 [court to prosecutor, “[W]ith all due respect, I do not give a damn about what time frame you’re concerned about.”]; 8 RT 1637 [court to prosecutor: “But that’s a bogus argument, Mr. *? These citations represent just a handful of the numerousinstances the court took action to ensure the trial proceeded in an orderly and efficient manner. 122 Dunlap.”]; 9 RT 2010 [court told prosecutor to stop arguing: “Issue’s now been addressed, Mr. Dunlap. It is gone.”]; 22 RT 4285-4286 [court admonishedprosecutor, after defense counsel objected to conduct]; 24 RT 4840-4841 [court sanctioned prosecutor for sighing]; 27 RT 5356 [court to prosecutor: “You don’t have any standing. Sit down.”]; 32 RT 6566-6568 [court makesfinding that prosecutor’s conduct violated court order]; 34 RT 6987-6989 [court refuses prosecutor’s request to rescind admonishment of prosecutor providedto jury],”? 6995 [court to prosecutor: “It is an absolutely ridiculous argument.”]; 38 RT 7838 [court to prosecutor: “[C]hoose your words carefully. This Court has not allowed an inquisition. That is an affront to the Court. [§] Cross the line again, and J will sanction you. Period.”], 7931[court to prosecutor: “Mr. Dunlap, don’t play games with me... Listen to whatI said.”]; 50 RT 10341-10342 [court to prosecutor: “Let metell you Mr. Dunlap,like the theory ornot, it will be the last time that I request not to have a physical reaction, whetherits throwing the handsinthe air, or guffaw, or another audible reaction to the theory of opposition counsel.”|; 82 RT 16957 [court sustained defense objection to editorializing]: 92 RT 19348 [court to prosecutor: “Mr. Dunlap, change your attitude, because the record will reflect the Court is getting offended by the tone of voice and theattitude.”].) It is well within a trial court’s discretion to rebuke an attorney, sometimes harshly, when that attorney asks inappropriate questions, ignores the court’s instructions, or otherwise engages in improperor delaying behavior. (People v. Snow, supra, 30 Cal.4th at p. 78.)* Further, on one occasionin particular, the *? The court advised the jury: “And understand that the question was asked in violation of the Court’s order.” (33 RT 6881.) ** At onepoint, during a particularly contentious exchange between the attorneys, Judge Delucchi wasforcedto interject, “Will you children stop arguing?” (60 RT 12325.) Defense counsel’s combativenessalso (continued...) 123 prosecutor complainedthat the court had instituted a double standard for speaking objections, which favored the defense. (90 RT 18789-18793.) Thus, given the record on the whole, appellant’s contentions that the trial court refused to take action to address the prosecutor’s conduct (AOB 140, fn. 84), that any actions taken by the court were “hollow” (AOB 138), and that the court assigned the prosecutor’s misdeeds to defense counsel (AOB 135-146)”are baseless. Additionally, in trying to ensurethe trial proceededin a timely fashion, the court not only put pressure on defense counsel to avoid unnecessary delays, as appellant points out (AOB 127-135), it did the same with the prosecutor. (3 RT 604-609; 39 RT 8091 [during guilt phase, when prosecutor said he had knee injury and might need additional time, court told him to rub mud onit]; 51 RT 10683 [court told prosecutor case would proceed even though prosecutor stated he was not prepared]; 61 RT 12428 [at start of penalty phaseretrial, court advised that prosecutor’s vacation would need to be terminated early to comport with agreed-upontrial schedule].) At the sametime, the court accommodated defense scheduling requests and concerns—forthe benefit of defense counsel and defense. witnesses—on numerousoccasions throughout the trial. (3 RT 409; 4 RT 730; 6 RT 1207; 29 RT 5947; 34 RT 7031-7032; 35 RT 7177-7179 [granting defense one-week continuance between guilt and penalty phases]; (...continued) prompted Judge Delucchi to make a wry remark about counsel’s proclivity for making objections. (60 RT 12314.) Thus, this “veteran jurist” (AOB 132, fn. 81) was also challenged by the conductof counsel. *° Onat least one occasion, the court made clear that it was reprimanding the prosecutor and not defense counsel. (36 RT 7574 [“THE COURT: Counsel, that’s enough. . . Not you [referring to defense counsel], him [referring to prosecutor].) 124 39 RT 8133-8134; 47 RT 9760 [scheduling accommodation because ‘defense counsel had headache]; 48 RT 10014 [extra time granted defense counsel to set up for guilt phase argument]; 77 RT 16149 [extra time granted defense counsel for opening statementin penaltyretrial]; 84 RT 17446-17448 [court accommodated defense scheduling request for expert witness testimony in penalty retrial], 17590 [defense counsel acknowledged court gave him day off to accommodate defense witnesses], 17707-17714 [at defense request, and over prosecution objection, court permitted defense to present appellant’s taped statement in piecemeal fashion over several days]; 94 RT 19751 [court gave defense extra time to review reports].) Althoughthe trial court may have had disagreements with defense counsel aboutthe efficacy of certain defense tactics, the record establishes the court’s support of defense counsel’s mandate and obligations in a capital case. For example, during pretrial discussions on the change-of- venue issue, the court expressed its support for defense counsel’s right to take positions for the sake of the record, even if those positions were not necessarily meritorious. (1 RT 61-62.) On one occasion duringpretrial hearings, when a defense witness who had been scheduled to testify became unavailable, the court made clear that it understood it was not defense counsel’s fault and was beyond his control. (5 RT 981.) In fact, there were instances when the court went beyondthe call of duty to protect the defense’s interests. (5 RT 1048-1049 [during discussion on jury selection procedures, court cautioned defense counsel about agreeing to prosecution’s proposed procedure].) On one occasion,after defense counsel made an impolitic remark about having frontal lobe damage, the court, to assuage counsel’s concern, ordered that the record reflect that counsel made the commentin jest during informal discussions. (39 RT 8253.) During the penalty phase, the court defended defense counsel’s prerogative not to indicate whether appellant would testify. (49 125 RT 10265.) In the course ofthe penaltyretrial, after an extended break ensued when the prosecutor objected to defense counsel’s questioning of a defense expert, the court made clear to the jury that it was, upon the court’s further inquiry, a proper line of questioning by defense counsel. (84 RT 17659-17670.) Also, during the retrial, the court proactively advised defense counsel that he might want to address an issue with a key defense witness, through questioning, because otherwise the witness’ credibility could be adversely impactedas far as the jury was concerned. (87 RT 18191-18193.) On another occasion, the court defended defense counsel when the prosecutor accused counsel of purposefully extending his cross- examination of a prosecution rebuttal witness leaving the prosecutor with less time to prepare for closing argument. (94 RT 19860-19864.) Additionally, during the penaltyretrial, the court made clear to the jury that a brief hiatus taken to deal with an evidentiary issue, which arose during defense counsel’s examination of an important defense witness, was the result of the court’s misunderstanding andnotthe fault of defense counsel. (92 RT 19222-19223.) Last, the court, over prosecution objection, stayed most of the sanctions imposed on defense counsel (97 RT 20704-20705)° and, in at least one instance, the court did not impose sanctions on defense counsel whenit could have (36 RT 7577). Notably, at various times during the proceedings, defense counsel thanked the court for its consideration, graciousness, and fairness. (4 RT 806; 17 RT 3279-3280; 47 RT 9799; 49 RT 10255; 82 RT 17020; 84 RT 17706.)°’ Defense counselalso apologized to the court for someofhis °° The vast majority of the sanctions were for discovery non- compliance after repeated admonitions bythe trial court. (97 RT 20640- 20643.) | *” Defense counsel admitted to a propensity for “loquaciousness.” (9 RT 1881.) 126 transgressions. (17 RT 3279-3280; 52 RT 10699; 81 RT 16886-16887; 84 RT 17706.) Contrasting the situation here with that which occurred in Peoplev. Sturm, supra, 37 Cal.4th 1218, further demonstrates that Judge Platt did not exhibit a bias in favor of the prosecution and did not otherwise abridge appellant’s constitutional rights. In Sturm, the trial court told prospective jurors during the penalty phaseretrial that the issue of premeditation and deliberation was a “gimme”andthatthe matter was “all over and done with.” (d. at p. 1231.) Thetrial court’s comments were especially problematic because the guilt phase jury was unable to reach a decision on whether the murders were premeditated and the focus of the mitigation case wasa lack of premeditation. (/d. at p. 1232.) Also, in Sturm, the trial court repeatedly belittled defense expert witnesses during their testimony in the second penalty phase. (Sturm, supra, 37 Cal.4th at pp. 1233-1235.) Further, during the defense presentation of mitigation evidence,the trial court interrupted the testimony over 30 times to interpose its own objection or disallow a question by defense counsel, even though the prosecution had not objected. On the other hand, the court disallowed a question from the prosecutor on only five. occasions. (/d. at pp. 1235.) Realizing that his actions may have suggested to the jury that it favored the prosecution, the judge gavethe jury an admonishment, which only served to highlight the apparent inequities. (Ud. at pp. 1235-1236.) This Court found that “under the unique facts” of the case, “the trial judge engagedin a pattern of disparaging defense counsel and defense witnesses in the presence ofthejury, and conveyed the impression that he favored the prosecution by frequently interposing objections to defense counsel’s questions.” (Sturm, supra, 37 Cal.4th at pp. 1238,italics added.) 127 Also illuminating of the issue here is People v. Geier (2007) 41 Cal.4th 555. In Geier, the trial court associated one mitigation witness with the “dim-witted fictional character” “‘Forrest Gump’” and suggested that the private life of another mitigation witness wasofthe variety that belonged on the “‘Oprah’” show. (/d. at p. 612.) Even though these improper remarks could have been perceived by jurors as derogatory comments on the credibility of those witnesses, the comments werebrief, isolated incidents that did not rise to the level of intemperate or biased judicial conduct that required reversal. (Ud.at p. 614.) Here, in contrast to Sturm and Geier, there was no conducton the part of Judge Platt that suggested to the jury that the defense evidence was not believed by the court or that the court was otherwise aligned with the prosecution. (People v. Sturm, supra, 37 Cal.4th at p. 1233; People v. Clark, supra, 3 Cal.4th at p. 143). In addition, the court instructed the guilt phase and penaltyretrial juries with CALJIC No. 17.30, which includes the following language: “I have not intended by anything I have said or done or by any questions that I may have askedor by any ruling I may have madeto intimate or suggest what you should find to be the facts or that I believe or disbelieve any witness. [§] If anything I have doneor said has seemed to so indicate, you will disregard it and form your own conclusion.” (48 RT 10137; 96 RT 20441-20442). Jurors are presumed to understand and follow the court’s instructions. (People v. Delgado (1993) 5 Cal.4th 312, 331.) Appellant’s contention that the court tried to cleanse “the record of rage” (AOB 118, 122, 126) is without merit. On one occasion, the court acknowledgedand apologized to the attorneys for an off-color remark. (46 RT 9566.) The court also acknowledged being upset or angry and speaking in a loud tone at times. (7 RT 1417; 61 RT 12521; 92 RT 19222-19223.) In short, the court was not trying to hide anything. To the extent that the 128 court resisted defense counsel’s attempts to supplementthe record along these lines, as appellant argues (AOB 146-157), the court’s concern wasthe creation of a misleading record (61 RT 12521). Further, insofar as frustrations arose between thetrial court and the attorneys, this Court recently reiterated that “‘such manifestations of friction between court and counsel, while not desirable, are virtually inevitable in a longtrial.’” (People v. Blacksher (2011) 52 Cal.4th 769, 825, citing People v. Snow, supra, 30 Cal.4th 43, 78-79.) To help alleviate someofthe stress and friction inherent in the longtrial, Judge Platt made an effort to lighten the mood in the courtroom, in an appropriate manner, including by poking fun at himself. (7 RT 1342; 9 RT 1882; 10 RT 2033/223; 31 RT 6283; 38 RT 7925; 39 RT 8199; 41 RT 8504-8505; 42 RT 8665; 43 RT 9027-9028; 47 RT 9841.) With particular regard to appellant’s contention regarding prosecutor George Dunlap’s temporary absence from the proceedings (AOB 119-124), considered in context, the court’s handling of the matter was not inappropriate or suggestive of a biased attitude against the defense. Dunlap’s absence immediately followed the defense and prosecution’s stipulation to a change ofvenue, which occurred on March 1, 1999. (8 RT 1510/11-1510/31.) The resulting reassignment could have taken several monthsto effect, a situation that did not sit well with Dunlap, who was preparedto start the trial and which, seemingly, put the prosecutor at odds with his office. (8 RT 1510/20-1510/23.) The next moming, Tuesday March 2, the prosecution’s representative, Ms. Verber, advised the court that Dunlap would not be available until the following Monday, March 8. (8 RT 1510/34.) The colloquy between the court and Verber suggested that Dunlap’s temporary absence may have been connected to discussions that involved San Joaquin County District Attorney Phillips and the head ofthe office’s homicide unit, Lester Fleming. 129 (8 RT 1510/35- 1 510/36.) Defense counsel, Michael Fox, did not complain about Dunlap’s absence. In fact, the defense had previously submitted a motion to continue the trial, which was denied. (6 RT 1205.) On March3, while the court made mention of using the remainder of the week to address pretrial motions, it was on an opportunistic basis, while the case was pending reassignment. The motions were not previously scheduled. (8 RT 1510/39, 1510/54.) That same day, defense counsel advised that he had medical and dental appointments on March 8 and would not be available. Consequently, the court set the next proceeding for Tuesday, March 9, at which time pretrial motions would begin. (8 RT 1510/42, 1510/49.) Also that day, Fox submitted additional information in support of his motion to continue the penalty retrial and asked that the motion be considered a continuing motion. (1510/37.) On March 9, Fox:asked the court to inquire into the reasons behind Dunlap’s absence, observing that pretrial motions had beenset for the previous week. (8 RT 1510/54.) The court declined to inquire and corrected counsel, pointing out that pretrial motions werenot set for the previous week. (8 RT 1510/54.) Given the circumstancesat the time of Dunlap’s brief absence—the case was pending reassignment, the defense wasstill seeking a continuance of the trial, defense counsel needed a day off for personal appointments, and no schedule had beenset for pretrial motions, Judge Platt’s handling of the matter was not inappropriate and did not indicate a double standard that prejudiced appellant. At the sametime he ignores the considerable portions of the record that illustrate Judge Platt’s even-handed treatment of the attorneys, appellant equates the court’s conduct with the extraordinarily oppressive atmospherethat civil rights lawyers endured in the “‘deep south’” in the 1960s. (AOB 154-155.) As evidenceofthis, appellant pointsto thetrial 130 court’s rulings on the issue of appellant’s remorse, the court’s purported whitewashing ofthe record pertaining to his treatment of defense counsel, and the court’s unwillingness to permit defense counsel to videotape the proceedings. (AOB 146-155.) First, the court’s rulings on the issue of remorse and the attorneys’ arguments on the issue, to which appellant cites, pertain to the first penalty phasethat did not produce a verdict. As such, this argumentis nothing more than a red herring. Next, the court did not attempt to create amisleading record by cleansing it of the court’s purported abuse of counsel. As stated earlier, the court acknowledged being angry and speaking in a loud tone at times. (7 RT 1417; 61 RT 12521; 92 RT 19222-19223.) Also, appellant neglects to mention that Alameda County Deputy Sheriff Ken McCullum and San Joaquin County Deputy Sheriffs Rick Adams and Willis Smith—all present in court on December 20, 1999— provided declarations that directly refuted defense counsel’s assertions that the court yelled at counsel on December 20, 1999 (10 CT 2766-2768), which was the primary basis for the motion to videotape the proceedings (10 CT 2672-2673).”® In its opposition to the motion, the prosecution also pointed out that the California Rules of Court expressly prohibited videotaping as a replacement or augmentationto the official record. (10 CT 2734-2735.) Appellant’s last contention underthis claim,is that the trial court was without jurisdiction to impose the death penalty. His first argumentin this *8 Earlier in the proceedings, the court denied the prosecution’s motion to videotape the proceedings. The stated purpose wasto capture appellant’s “jocularity” in the courtroom so as to rebut anticipated defense mitigation evidence characterizing appellant as remorseful. (20 RT 3877- 3883.) 131 regard is that Judge Platt’s alleged bias against appellant prevented the court from impartially weighing the evidence and from reliably determining the propriety of imposing the death penalty, as required by Penal Code section 190.4, subdivision (e). (AOB 157-160.) His second argumentis that the trial court had no authority to impose sentence in San Joaquin County sincethe trial proceedings occurred in Alameda County, pursuant to a stipulated change of venue. (AOB 160-161.) As we have argued, Judge Platt did not exhibit bias against appellant that compromisedconstitutional mandates. Therefore, the court had the requisite independenceand,accordingly,jurisdiction to impose the death penalty. Notably, appellant does not cite to any portion of the August 4, 2000 sentencing record—in particular, the court’s findings on the motion to modify the death verdict (97 RT 20664-20670)—1in support of his argument: that the court was not able to independently weigh the evidence and determine the propriety of imposing the death penalty. Likewise, appellant’s argumentthat the trial court did not have jurisdiction to impose the death penalty, because it sentenced appellant in San Joaquin County, is without merit. During the colloquy with defense counsel on July 7, 2000, on the subject of where appellant wasto be sentenced, the court explainedthat, at its request, the assistant court administrator contacted the Judicial Council to determine whetherfinal proceedings in the case must be conducted in Alameda Countyor if the court could sit in San Joaquin County for post-trial proceedings. (97 RT 20593.) The Judicial Council advised that the court had authority to sit whereit designated andthat, regardless, it would still be under Alameda County jurisdiction and authority. (97 RT 20593.) The court made clear that the case was not removed from Alameda County to San Joaquin County, the latter being the court oforiginal jurisdiction. (97 RT 20593.) Instead, the court wassitting in San Joaquin County as an Alameda County 132 Superior Court. (97 RT 20593.) The court explained that it made the decision to hold post-trial proceedings in San Joaquin County based on the location of defense and prosecution witnesses, family members, the court’s other obligations, and considerations related to court staff and personnel. (97 RT 20594.) Citing Penal Code sections 1033 and 1036,” appellant’s objection to being sentenced in San Joaquin County wasbased on the potential for harm or danger and that, when he wastransferred from the Alameda Countyjail to the San Joaquin Countyjail, his personal property was not returned to him. (97 RT 20594-20595.) The court made clear that appellant would be provided with whatever personal items, including legal materials, to which he wasentitled. (97 RT 20595.) Appellant characterizes this portion of the record as an example of “judicial tyranny.” (AOB 162.) He is wrong. The venue change to *° Penal Codesection 1033 provides: “In a criminal action pending in the superior court, the court shall order a change of venue: [{] (a) On motion of the defendant, to another county whenit appears that there is a reasonable likelihoodthat a fair and impartialtrial cannot be had in the county. When a change of venueis ordered by the superior court, it shall be forthetrial itself. All proceedings before trial shall occur in the county of original venue, except whenit is evident that a particular proceeding must be heard by the judge whois to preside overthe trial. [§] (b) On its own motion or on motion of any party, to an adjoining county whenit appearsas a result of the exhaustion ofall of the jury panels called thatit will be impossible to secure a jury to try the cause in the county.” Penal Code section 1036 provides: “(a) Unless the court reserves jurisdiction to hear other pretrial motions, if a defendantis incarcerated and the court orders a change of venue to another county, the court shall direct the sheriff to deliver the defendant to the custody ofthe sheriff of the other county for the purposeoftrial. [{] (b) If the defendant is incarcerated and the court orders that the jury be selected from the county to which the venue would otherwise have been transferred pursuant to Section 1036.7, the court shall direct the sheriff to deliver the defendant to the custody of the sheriff of that county for the purpose ofjury selection.” 133 Alameda County pertained only to the selection of the jury and thetrial proceedings. The plain language of Penal Code section 1033 states, in relevantpart, that“[w]hen a change of venueis ordered by the superior court, it shall be forthetrial itself.” The statute expressly provides that pretrial proceedingsare to be held in the county of original jurisdiction. (Pen. Code, § 1033.) Taken together, these provisions suggest there is no obligation on the part ofthetrial court to conduct post-trial proceedings in the venue wherethetrial proceedings were conducted. Evenifthe court’s actions in sentencing appellant in San Joaquin County could be reasonably construed as a change of venue andjurisdiction, as appellant contends, he had the opportunity to petition the appellate court, as the trial court observed. (97 RT 20594.) Appellant did not. Nor did he provide support for his contention that the potential for physical harm was greater in San Joaquin County than in Alameda County. Therefore, considering the absence of persuasive reasons for sentencing appellant in Alameda County, and the existence of persuasive reasons for sentencing appellant in San Joaquin County,the trial court’s decision was an appropriate exercise of its discretion. Last, to the extent that appellant imports separate legal claims in support of his present claim of prejudicial judicial bias (AOB 159 [“Judge Platt’s improper instructions, admission of the prosecutor’s exhibits to the retrial jury, while excluding defense exhibits . . . .”]) respondent addresses those contentions post, separately and cumulatively. In sum,althoughthe trial court’s conduct may have been imperfect on occasion, it did not deprive defendantofa fair trial, the effective assistance of counsel, or a reliable penalty determination. (See People v. Snow, supra, 30 Cal.4th at p. 82.) 134 IV. THE TRIAL CourRT DiD NOT COERCE A DEATH VERDICT In this claim, appellant contends the death judgment must beset aside becauseoftrial court errors which, separately and cumulatively, resulted in a coerced death verdict in the penalty retrial. Accordingly, appellant argues, he was denied certain state and federal constitutional rights. (AOB 165- 166.) ‘Specifically, appellant assignserror to the trial court as follows: 1) failing to poll the jurors as to whether there was a reasonable probability of reaching a verdict (AOB 193-198); 2) implying that deliberations would continue for an additional month or until a verdict was reached (AOB 198); 3) characterizing the jury’s efforts as “a drop in the bucket” (AOB 199-200); 4) telling the jurors to “roll up your sleeves and go back to work” (AOB 199-200); 5) suggesting to the jury that they reverse role-play during their deliberations (AOB 200-203); 6) permitting certain of the prosecution’s charts, used in penalty phase argument, to be used in deliberations (AOB 181-185); 7) excluding the jury’s use of one defense chart, used in argument, during deliberations (AOB 185-193); and 8) refusing to grant a mistrial (AOB 165, 204). Appellant’s claim fails because noneofthe trial court’s actions in assisting the jury during deliberations constituted error. The trial court was not obligated to ask the jurors whether there was a reasonable probability of reaching a verdict. Further,the trial court’s instructions and suggestions did not, individually or taken together, constitute a coercive charge to the jury. Nor wasthere anything erroneous aboutthetrial court’s decisions concerning the jury’s use of the prosecution and defense charts during deliberations. Last, the trial court’s denial of appellant’s motion for a mistrial was a proper exercise of discretion. If there waserror, there is no reasonable probability it affected the penalty verdict. 135 A. Procedural Background After thetrial court instructed on the afternoon of Tuesday, May 16, 2000,”° the jury received the case. (96 RT 20445.) Since it was approximately 3:15 p.m., the court suggested to the jurors that they not address any issues that afternoon,but decide what time they wanted to return the following morning tostart deliberations. (12 CT 3167; 96 RT 20445-20448.) The jurors began deliberations at 10:00 a.m. on Wednesday, May 17, and were excusedfor the day at approximately 3:30 p.m. (12 CT 3172; 96 RT 20470.) The jury reconvened at 10:00 a.m. on Thursday, May 18. (12 CT 3176; 96 RT 204.) As Judge Platt prepared to send the jurors to resume their deliberations, he said, “All right. Thank you. Time to go to work.” (96 RT 20477.) The jury was excusedat 3:00 that afternoon and ordered to return on Monday, May 22 at 10:00 a.m. (12 CT 3176; 96 RT 20479.) Deliberations resumed at approximately 10:15 a.m. on May 22. (12 CT 3180; 96 RT 20481-20482.) The jurors were excused for the day about 15 minutes earlier than usual. For this reason, the court ordered the jury back at 9:45 a.m. the following day stating, “I’m going to try and steal that 15 minutes back on the other side. 9:45, please.” (12 CT 3180; 96 RT 20484.) On Tuesday, May 23, the jury resumed deliberations in the morning and was excused in the afternoon. (12 CT 3184; 96 RT 20487-20488.) Deliberations continued the next morning, May 24, at 10:00 a.m. (12 CT 3188; 96 RT 20477.) Before the jury resumeddeliberations, the court said, “We will send you back out to go to work.” (96 RT 20490.) The *° The events at issue took place in 2000, unless other noted. 136 court excused thejury for the day at 2:45 p.m. (12 CT 3188; 96 RT 20490- 20491.) The jury deliberated for a shortened period of time on Thursday, May 25, because certain jurors had family members who werevisiting. (12 CT 3192; 96 RT 20493-20494.) Outside the presence ofthe jury, the court advised counsel that based on the previously agreed-upon schedule, which was communicatedto the jury, deliberations could continue until the end of June. (96 RT 20495.) The court indicated its intention to substitute alternates if sitting jurors could not continue to serve after that time. (96 RT 20495.) The court did not anticipate dealing with the potential of a hung jury in the near-term, although the court acknowledgedthat it did not know “whetheror not they have issues” and “how close they are or not.” (96 RT 20495.) The court advised counsel that they shouldplanto use the time during deliberations to certify the record. (96 RT 20495 [“I don’t intendtosit here idly and not work while they’re working”].) The jury was excused at 1:00 p.m. and ordered to return at 10:00 a.m. on Tuesday, May 30 because it was a holiday weekend. (12 CT 3192; 96 RT 20497.) At approximately 2:00 p.m., on Tuesday, May 30, the jury foreperson advised the court that the jury was at an impasse and needed further instructions. (12 CT 3196, 3208; 96 RT 20500.) Pursuant to the court’s request, the foreperson chronicled the numberofballots taken and the breakdown ofthe votes, without specifying the direction of the split. (96 RT 20500.) The jury voted six times. Each vote occurred on a different day. The first vote occurred on thefirst day of deliberations and was six and two, with four undecided. (96 RT 20500-20501.) The next vote was eight and two, with two undecided. (96 RT 20501.) The third vote was taken on May 23. The breakdown was seven and three, with two undecided. (96 RT 20501.) On May24,the breakdown was eight and two, with two undecided. (96 RT 20501.) On May25, the vote was nine and two, with 137 one undecided. (96 RT 20501.) That day, May 30, the breakdown was ‘nine and three. (96 RT 20501.) The court asked the foreperson to be more specific about the jury’s request for further instruction. The foreperson only replied that they were at an impasse. (96 RT 20501.) The court told the jurors that they had been in deliberations for approximately 20 hours and had “come a very long way.” (96 RT 20502.) The court explained that the issues they were grappling with were“literally life and death issues.” (96 RT 20502.) The court continued: Andthe only instruction that I can give youat this point in time is 20 hours of discussion does not amount to an impasse that we cannotjustify going further and having further discussion. [] At whatpointthat is or is not the case, I don’t know. But I think you oweit to yourselves to continue to talk about the matter and see if there is further discussion. See if there is any change in any fashion. Before we decide whether or not weare truly at an impasse. [{] So my instruction to you at this pointin time is, as I said this morning- - it’s time again to roll up your sleeves and go back to work. (96 RT 20502.) After the jury left, defense counsel, Michael Fox, recounted for the court what Judge Delucchi did whenthe first penalty phase jury reached a similar point. Fox told the court that after the second impasse, Judge Delucchi asked the jurors if further deliberations would be helpful. (96 RT 20503.) Fox requested the court do the sameif the jury came back a second time and stated they were at an impasse. (96 RT 20504.) Healso asked the court to let the jurors know that a non-verdict was “something that the law embraces.” (96 RT 20504.) The court responded that the law accepted a non-verdict and that each judge,in his or her estimation, had to decide whenthat point was reached. (96 RT 20504.) Responsive to Fox’s request, the court stated it would poll the jurors if the jury came back a second time indicating an impasse. (96 RT 20505.) The court characterized 20 hours of | 138 deliberation as “a drop in the bucket”on a life and death issue. (96 RT 20505.) Further, the court explained that if deliberations continued until the end of June—the timeframe the jury was provided for whenthetrial would conclude—the court would have to consider replacing jurors that might need to be released. The court also contemplated the possibility of having to declare a mistrial beforethat time. (96 RT 20506.) The court observed, “And quite frankly, I would hope that in 20 hours, someone cannot decide a life and death issue.” (96 RT 20506.) Before excusing the jury on the afternoon of May 30, the court reread certain instructions to the jury: CALJIC numbers 17.30 Gury Not To Take Cue From The Judge), 17.31 (All Instructions Not Necessarily Applicable), 17.40 (Individual Opinion—Duty to Deliberate), and 17.41 (How Jurors Should Approach Their Task). (96 RT 20507-20509.) Judge Platt also told the jurors that just because he encouraged them to continue deliberating, he was not suggesting that any juror should change his or her position. (96 RT 20507.) He added, “Thatis entirely up to you as individuals . . . | have no position other than to move you along until and if you can reach a verdict.” (96 RT 20507.) The court also noted that in light ofthe issues the jurors were dealing with, the time they had spent in deliberations was “a drop in the bucket.” (96 RT 20509.) The court stated that until it decided further deliberations would befutile, “I'll have you continue to roll up your sleeves and go to work as best you can.” (96 RT 20509.) The court added: | Oneof the ways that I would suggest you doit - - and it is merely a suggestion. Because obviously now there have been somepositions taken. During the discussions that you have in the next few days, if you take the other side’s position, advocate it as if it were yours, see whetheror not that changes your own thoughts about your position. []] Discuss it again with the other 139 jurors. Do that talking, do that deliberating. And then we’ll see where weare. (96 RT 20509.) The jury was excused for the day. (12 CT 3196; 96 RT 20509.) After the jury left, Fox moved for a mistrial based on the court’s instructions and comments, which Fox argued invaded the province ofthe jury. (96 RT 20510-20511.) The court denied the motion stating thatit carefully construed its comments soasto assist the jury’s ability to deliberate. (96 RT 20511-20513.) The jury returned the next morning on Wednesday, May 31 and resumeddeliberations. (12 CT 3200; 96 RT 20515.) At the start of the afternoon session, the court advised counselthat it received two notes from the jurors. (96 RT 20518.) The communication from the foreperson advised the court that the jury decided to recess at 12:30 p.m. the following day, June 1, and return at 1:00 p.m. on June 5 dueto a previously acknowledged commitmentfor one of the jurors. (12 CT 3207; 96 RT 20518.) The other communication was from juror numberfive requesting several days’ absence to accompany her daughter on a school trip. (96 RT 20518.) The court agreed to the first request and took juror numberfive’s request under submission. (96 RT 20520-20521.) When court resumed on the morning of June 1, the court sent the jurors to the deliberation room stating, “We will send you back out to resume deliberations. Back to work, folks.” (97 RT 20524.) Shortly thereafter, the jury requested the prosecution’s timeline exhibit used during closing argument. (12 CT 3201, 3206; 96 RT 20522.) Defense counsel objected because, he contended, the exhibit was argument and not evidence. (97 RT 20525, 20528-20529, 20532-20533.) The prosecutor, citing this Court’s decisions in People v. Pride (1992) 3 Cal.4th 195 and People v. 140 Gordon (1990) 50 Cal.3d 1223,*! argued the court haddiscretion to allow the timeline to go back to the jury. (97 RT 20525-20527.) The court advised counsel that it was going to agree to the jury’s request. However, it would instruct the jury that the exhibits were not evidence and could only be used to refresh their memories about the relevant testimony. (97 RT 20528-20529.) The court also stated that it would tell the jury that if there was any other aspect of either attorney’s argument they needed, it would be provided, subject to the same limitations. (97 RT 20529.) Thereafter, the court twice instructed the jury that it was “absolutely critical” that they understand the timeline exhibits*” were not evidence and could only be usedto aid discussions of the evidence. (97 RT 20530- 20531.) The jurors nodded, presumably indicating they understood. (97 RT 20535.) The court also asked the jury to speak up if there were other things the court could provide to assist with deliberations. (97 RT 20531.) After the jury left the courtroom, defense counsel moved for a mistrial. (97 RT 20533-20534.) The court denied the motion stating that it was fulfilling its obligation to assist the jury in their deliberations. (97 RT 20534.) A little while later, the foreperson requested the defense poster board exhibits, which explained mitigating and aggravating factors. (12 CT 3201, 3205; 97 RT 20536.) It was unclearif the jury wanted the definitions or examples of the factors. The court stated its intention to send in the exhibits that encompassed both. However, the court cautioned the jury that *! Overruled on other groundsin People v. Edwards (1991) 54 Cal.3d 787, 835. >? The three boards were marked as Court’s Exhibits “OOOO,” “PPPP,” and “QQQQ.” (97 RT 20532.) 14] the definitions were defense counsel’s interpretation of the definitions. (97 RT 20538-20539.) Outside the presenceofthe jury, the court reviewed with theparties which of the defense argument exhibits would be providedto the jury. Defense counsel explained that there were three separate sets of boards. The court agreed to provide the jury with the first set, which was compromised of three boards. (97 RT 20540-20541 .) Another board, which contained defense counsel’s definition of a mitigating factor, was also permitted to go to the jury. (97 RT 20541.) Additionally, there were four boards that discussed mitigating and aggravating factors, as provided for in the CALJIC instructions. (97 RT 20541.) After some debate, the court allowed two ofthe four boardsthat it determined were responsive to the jury’s request. (97 RT 20541-20544.) Whenthe jury returned, the court advised that it was sending the defense boards in, although two concerneddefinitions already provided for in the court’s instructions. (97 RT 20544.) The court sent the jury off stating, “Okay. Alright. Get some exercise and go backthere andstart to work then. [§] We'll send these back.”*? (97 RT 20544-20545.) A short while later, the foreperson requested the defense poster board that discussed the manner in which aggravating and mitigating evidence wasto be weighed and considered.(12 CT 3202, 3204; 97 RT 20546.) 3 The defense boards were marked as Court’s Exhibits “RRRR,” “SSSS,” “TTTT,” and “UUUU.” (97 RT 20545.) *4 This board was marked as Court’s Exhibit number “VVVV.” (12 CT 3202.) As described by defense counsel, it stated, “You must vote for life if mitigation outweighs aggravation . . . you must votelife if mitigation and aggravation are equal. [§]] You mustvote life if aggravation outweighs mitigation, but not substantially. [§] You must votelife if aggravation substantially outweighs mitigation, but you believe death is not the appropriate punishment .. . [You] may vote for death... There is never a (continued...) 142 The court distinguished this particular board as “pure argument.” Although it was a correct statement of the law, unlike the other boards providedto the jury, it did not reference matters related to the evidence. (97 RT 20547.) The prosecutor reiterated his objection to any defense boards going back to the jury that included defense counsel’s interpretation of the law. (97 RT 20547-20548, 20551.) The court explained, in detail, why it permitted certain of the boards to go back and not others. (97 RT 20551.) In short, the court found that the board in question commented onthe ultimate issue before the jury and accorded impropersignificance to defense counsel’s argument on the issue. (97 RT 20552.) In the court’s view, the board was not an argument or comment aboutfacts or circumstances that would lead them to decide the issue of penalty. (97 RT 20552-20553.) Before explaining its decision to the jury, the court—responding to defense counsel’s concern (97 RT 20550, 20555), corrected the jury’s understanding of what the defense board said (97 RT 20554) and, accordingly, what defense counsel had argued. Then, the court explained how the board encompassedthe ultimate issue they were to decide in contrast to the other boardsthat the court had allowed. (97 RT 20554.) _ After the jury left the courtroom, defense counsel moved for a mistrial a second time, which the court also denied. (97 RT 20555-20556.) Before adjourning for their extended weekend break, the jury returned to court and the foreperson advised that they decided to take a few days off from deliberations the following week to accommodate one juror’s scheduling conflict. (12 CT 3202; 97 RT 20559.) (...continued) mandatory vote for death, even if the aggravation substantially outweighs mitigation, and you believe death is appropriate.” (97 RT 20548-20549.) 143 On Mondayafternoon, June 5,the jurors continuedtheir deliberations beginning at approximately 1:00 p.m. (12 CT 3213; 97 RT 20562.) Before the jurors left the courtroom for their deliberations, the court said, “All right. Time to go to work.” (97 RT 20562.) The jurorsleft for the day at 3:30 p.m. (12 CT 3213; 97 RT 20565.) The jurors returned to their deliberations at approximately 10:00 a.m. the next day, Tuesday, June 6. (97 RT 20567.) Atthe start of the afternoon session, the court announced the jury had reached a verdict. (97 RT 20573.) B. General Legal Principles Jurors can be asked to continue deliberating when,in the exercise of its discretion, the trial court finds a reasonable probability they will be able to reach agreement. (People v. Howard (2008) 42 Cal.4th 1000, 1029, citing Pen. Code, § 1140.)*° The determination as to whetherthere is a reasonable probability of agreementrests within the sound discretion of the trial court. [Citation.] “Although the court must take care to exercise its powerwithout coercing the jury into abdicating its independent judgmentin favor of considerations of compromise and expediency[citation], the court may direct further deliberations uponits reasonable conclusion that such direction would be perceived ‘“‘as a means of enabling the jurors to enhancetheir understanding of the case rather than as mere pressure to reach a verdict on the basis of matters already discussed and considered.”’” [Citation.] (People v. Harris (2005) 37 Cal.4th 310, 363-364.) °° Penal Code section 1140 provides, “Exceptas provided bylaw, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless, at the expiration of such time as the court may deem proper,it satisfactorily appears that there is no reasonable probability that the jury can agree.” 144 “Anyclaim that the jury was pressured into reaching a verdict depends on the particular circumstancesofthe case. [Citations.]” (People v. Pride (1992) 3 Cal.4th 195, 265.) C. The Trial Court Conducted the Requisite Inquiry In Determining Whether There Was a Reasonable Probability the Jury Could Render a Verdict Appellant argues that after the foreperson advised the jury wasat an impasse, the trial court failed to conduct an inquiry to determine if there was a reasonable probability of reaching a verdict. (AOB 193-198.) On the contrary, this Court has held that a trial court does not have a duty to specifically ask jurors if further deliberations would help. Further, the trial court here conducted the requisite inquiry, the manner of which has been approved bythis Court. . In People v. Bell (2007) 40 Cal.4th 582, this Court reiterated that “Twhile the trial court has a duty to avoid coercing the jury to reach a verdict, we have held that inquiry as to the possibility of agreementis ‘not a prerequisite to denial of a motion for mistrial.’ [Citation.]” (Ud. at pp. 616- 617.) In Bell, the defendant arguedthe trial court erred in its response to the jury’s note concerning an 11-to-1 impasse during guilt phase deliberations. (/d. at p. 612.) Although the guilt phase was not especially long, the jury heard “extensive and complicated” expert testimony from both sides, which the Court termed a “complex expert debate.” (/d. at p. 617.) At the point at which an impasse wasreached,the jury had deliberated for approximately 10 hours. (/bid.) This Court foundthetrial court’s conclusion that further deliberations were necessary—without having polled the jurors—wasnot unreasonable based on those circumstances. (/bid.) Here,the penaltyretrial jury heard evidence and argumentover a two- month period, which included not only testimony concerning aggravating 145 and mitigating factors, but also extensive testimony on the facts of the crime—essentially, guilt phase evidence. Like the guilt phase jurors in Bell, the jurors in this case heard complicated and highly technical expert testimony from both sides. Yet, unlike the jurors in Bell, at the point of impasse, the jurors here were also deliberating the issue of whether the penalty would be life or death. Therefore, it was not unreasonable for the trial court to conclude, without polling the jurors, that further deliberations might producea verdict. Further, the inquiry the trial court undertookat the point ofthe- declared impasse was proper. In People v. Proctor (1992) 4 Cal.4th 499, during deliberations, the jury advised thetrial court that it had reached an impasse and requested guidanceas to how to proceed. (/d. at p. 538.) The court asked the foreperson for the numerical division of the jurors, without disclosing the breakdownfor guilty or not guilty verdicts. (/bid.) This Court approvedthetrial court’s inquiry, finding it was conducted in a neutral mannerand in service of determining whether further deliberations wouldbe productive. (Jd. at p. 539.) | In this case, the trial court conducted the same inquiry utilized in Proctor. The court asked for the numberofballots taken and the numerical breakdown. (96 RT 20500.) The jury took six ballots. The first ballot was six and two, with four undecided. (96 RT 20500-20501.) The next vote was eight and two, with two undecided. (96 RT 20501.) The third was seven and three, with two undecided. (96 RT 20501.) On the fourth ballot, the breakdown waseight and two, with two undecided. (96 RT 20501.) The next was nine and two, with one undecided. (96 RT 20501.) Thelast ballot was nine and three. (96 RT 20501.) Taken together, these ballots strongly suggested the deliberations were progressing. Four jurors, who wereinitially undecided, had taken positions. Further, the most recent numerical breakdown—nine to three—also suggested a verdict was 146 reasonably probable. (See People v. Harris, supra, 37 Cal.4th at pp. 364- - 365 [record supportedtrial court’s determination that jury had not reached impasse where each successiveballot taken revealed changesin votes].) Moreover, in addition to asking for the numerical breakdownofthe ballots, the court asked the foreperson if the jury could be morespecific aboutits request for further instruction. The court thentailored its response to the jury’s needs. (96 RT 20501-20502.) | Appellant cites no controlling or persuasive authority for his proposition that, on May 30, when the first—and only—indication came from the jury that deliberations were stalled, the court was required to ask each juror whetherheor she felt there was a reasonable probability of reaching a verdict. Instead, he points to Judge Delucchi’s handling ofthe first jury’s impasse. (AOB 197.) However, a closer look at that portion of the record only serves to undermine appellant’s position. After deliberations commencedin the first penalty phase on September 17, 1999, the jury sent the court a note asking what would happen “if there’s a hung jury.” (9 CT 2475; 60 RT 12278-12279.) In the ensuing days, the court replaced a juror whohad refused to deliberate. (60 RT 12304-12305.) Thereafter, deliberations continued. On September22, the foreperson sent a note advising the jurors were “hopelessly deadlocked.” (9 CT 2486; 60 RT 12340.) After telling counsel that it was premature to declare a mistrial (60 RT 12340), Judge Delucchi brought the jury in and asked for the number of ballots taken andthe split (60 RT 12342). The foreperson advised they had taken eight votes and the most recent split was six to six. (60 RT 12342.) Judge Delucchiinstructed the jurors to continue with their deliberations, but he adjourned court early and suggestedto the jurors that they go homeandsleep on it in the hope that when they returned in the morning, they would have a fresh perspective. (60 RT 12343.) 147 Deliberations continued until September 27, when the jury advised a second time that they were “deadlocked.” (60 RT 12366.) Judge Delucchi asked for the numberofballots taken and the split. The foreperson advised that they had voted a total of 12 to 15 times and the most recent split was eight to four. (60 RT 12368.) At that juncture, the court asked the foreperson if there was anything the court could provide in the way of instructions, readback, or evidence that would assist them. The foreperson said no. (60 RT 12368.) The court then polled the jurors to determine if there was a reasonable probability of reaching a verdict. Each answered in the negative. (60 RT 12368-12369.) Thus, the record shows that when the firstpenalty phase jury explicitly advised that the situation was “hopeless,” Judge Delucchi conducted the exact inquiry that Judge Platt did with the retrial jury at a similar juncture. Notably, Judge Delucchi did not poll the jurors until they made clear a second time that they were deadlocked. Judge Platt had clearly anticipated polling the jurors, as defense counsel requested, if their deliberations stalled a second time. (96 RT 20504-20505.) So, both judges approachedthe issue in the same manner. | In short, the record demonstrates the trial court discharged its statutory obligation in determining whetherthere was a reasonable probability the jury could agree on a verdict. The record further supports the court’s determination that the jurors had not become deadlocked and unable to reach a verdict. D. Taken Alone or Together, the Trial Court’s Instructions and Suggestion to the Jury Did Not Amount to an Improper “Allen Charge” Appellant contendsthetrial court’s instructions and suggestion to reverse role-play amounted to an impermissible intrusion during 148 deliberations. Respondent disagrees. There was nothing intrusive or coercive aboutthe trial court’s comments. Appellant’s claim is based on People v. Gainer (1977) 19 Cal.3d 835, 852 (Gainer) (AOB 199), which held: [I]t is error fora trial court to give an instruction whicheither (1) encourages jurors to consider the numerical division or preponderance of opinion on the jury in forming or reexamining their views on the issues before them; or (2) states or implies that if the jury fails to agree the case will necessarily be retried. This Court explained that such an instruction, known as an “Allen charge” (for an instruction upheld in Allen v. United States (1896) 164 U.S. 492) or a “dynamite charge” (because it was meant to “blast” a verdict out of a deadlocked jury), “instructed the jury to consider extraneous and improper factors, inaccurately states the law, carries a potentially coercive impact, and burdensrather than facilitates the administration ofjustice.” (Gainer, supra, 19 Cal.3d at pp. 842-843; see People v. Barraza (1979) 23 Cal.3d 675, 682.) “Coercion has been found wherethetrial court, by insisting on further deliberations, expressed an opinion that a verdict should be reached.” (People v. Rodriguez (1986) 42 Cal.3d 730, 775.) The basic question is “whether the remarks of the court, viewed in the totality of applicable circumstances, operate to displace the independent judgmentofthe jury in favor of considerations of compromise and expediency. Such a displacement may bethe result of statements by the court constituting undue pressure upon the jury to reach a verdict, whateverits nature, rather than no verdictat all.” (People v. Carter (1968) 68 Cal.2d 810, 817.) Here, the trial court’s comments and suggestion to the jury had none of the hallmarks of the type of charge disapproved in Gainer. First, there was nothing coercive with respect to the court’s characterization of the first 20 hours of the jury’s deliberations as a “drop in the bucket” (96 RT 20509) 149 andtelling the jurors to “roll up your sleeves and go back to work” (96 RT 20502). The court’s comments were emblematic of the court’s work ethic, as well as the court’s view of the gravamenofthe “life and death issues” the jury was called upon to decide. Throughoutthe course of the jury’s deliberations, including before the jurors advised that their deliberations hadstalled, the court exhorted the jurors to keep their nosesto the grindstone.*® (96 RT 20477 [“Time to go to work’’], 20484 [“I’m going to try and steal that 15 minutes back on the other side”], 20490 [“We will send you back out to go to work”, 20509 [“[R]oll up your sleeves and go to work as best you can”];°’ 97 RT [“We will send you back out to resume deliberations. Back to work folks.”], — 20544-20545 [“Okay. Alright. Get some exercise and go back there and start to work then”], 20562 [“All night. Time to go to work’”].) Asfor the drop-in-a-bucket characterization, the court repeatedly qualified that commentbyreferringto the enormity and importance of the task before the jury. On May 30, when the jurors indicated they were at an impasse, the court noted that they had “come a very long way.” (96 RT 20502.) In other words, the court acknowledgedthe efforts the jurors had already expended on the case. However, the court remindedthe jurors, and the attorneys, that investing 20 hours in deliberations was not inappropriate or unusual given that they were dealing with “literally life and death issues.” (96 RT 20502, 20505.) In light of this record, appellant’s contention that the court was demeaning the minority jurors’ efforts is baseless. © The court helditself, and the attorneys, to the same work standard. It made similar comments to the attorneys while the jury was deliberating. (96 RT 20495 [I don’t intend to sit here idly and not work while they’re working]”.) °7 See People v. Whaley (2007) 152 Cal-App.4th 968, 975, 982 [words “if you can” suggest jury may reach deadlock and do nottell jurors they must reach verdict]. 150 With respect to the trial court’s suggestion that the jurors switch positions and reverse role-play, lower courts have addressed this practice and foundthat it does not run afoul of Gainer. In People v. Whaley (2007) 152 Cal.App.4th 968, the Court of Appeal foundthat this approach to facilitating deliberations comported with Gainer.*® (Id.at pp. 982-983; see also People v. Moore (2002) 96 Cal.App.4th 1105, 1121.) First, the role playing approach applied to minority and majority jurors alike, in contrast to an improper Allen charge, which asks only minority jurors to reassess their positions. (People v. Whaley, supra, 152 Cal.App.4th at p. 983.) Second, there was nothing about the supplemental instruction that was inherently coercive in light of the trial court having emphasized the necessity for jurors to use their independent judgment. (/bid.) Third, the court’s comment aboutreverse role-playing was a suggestion and not an order. (/bid.) Last, defense counsel failed to object to the supplemental instruction at the time. (/bid.) Here,the situation is practically identical to that in Whaley. The court’s commentaboutreverse role-playing wasdirected toall of the jurors, not just the minority jurors. (96 RT 20509.) The court reinstructed the jury with CALJIC number 17.40, which madeclear the need for each juror to render an individual determination. (96 RT 20508.) The court explicitly stated that its comment about reverse role-playing was a suggestion. (96 *8 The trial court’s supplemental instruction included the following language: “‘May I suggest that since you’ve been unable to arrive at a verdict using the methods that you have chosen, that you considerto change the methods you have been following, at least temporarily and try new methods. [{] For example? You may wishto consider having different jurors lead the discussions for a period of time. You may wish to experiment with reverse role-playing by having those on oneside of the issue present and argue the other side’s positions and vice versa. This might enable you to better understand the other’s positions.’” (People v, Whaley, supra, 152 Cal.App.4th at p. 981.) 151 RT 20509.) And, while defense counsel objected, it was after the fact. (96 RT 20510.) In sum, the court’s comments and suggestion did not operate— separately or in combination—to displace the independent judgmentofthe jury in favor of considerations of compromise and expediency. Further, the trial court’s explicit admonitions on the purpose ofthe furtherinstructions and suggestion ensuredthat the jurors’ independent judgment would not be usurped. (96 RT 20507-20509 [including, “And I don’t want you to misperceive what the Court’s position is. I have no position other than to move you along until and ifyou can reach a verdict,” emphasis added].) E. The Trial Court’s Decisions on the Jury’s Use of the Prosecution and Defense Charts Constituted a Proper Exercise of Its Discretion Appellant’s challenge to thetrial court’s rulings on allowing the jury to have certain visual aids during their deliberations should be rejected. Thetrial court’s decisions constituted a properexerciseof its discretion. “[A] trial court’s inherent authority regarding the performanceofits functions includes the powerto order argument by counsel to be reread to the jury or to be furnished to that body in written form. The exercise of such power mustbeentrusted to the court’s sound discretion.” (Peoplev. Gordon (1990) 50 Cal.3d 1223, 1260, overruled on another ground in People v. Edwards (1991) 54 Cal.3d 787, 835.) A trial court has discretion under Penal Codesection 1138°” to provide a readback of counsel’s °° Penal Code section 1138 states: “After the jury have retired for deliberation,if there be any disagreement between them asto the testimony,or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendantor his counsel, or after they have been called.” 152 arguments, althoughit is not required to do so. (People v. Sims (1993) 5 Cal.4th 405, 453; see People v. Gurule (2002) 28 Cal.4th 557, 649; People v, Pride, supra, 3 Cal.4th at p. 266.) In this case, in providing the jury with certain prosecution and defense charts—used during closing arguments—thetrial court was respondingto the jury’s requests. (12 CT 3205-3206.) The majority of the aids provided were defense boards. (97 RT 20532, 20545.) Thetrial court excluded one requested defense aid, which, in the court’s view, accorded too much significance to defense counsel’s view on the ultimate question before the jury. (97 RT 20552; Court’s Exh. VVVV [repeatedly advising “You must” with respect to a decision favoring life imprisonment and onereference that “{You] may” with respect to voting for death].) The court also explained that this particular board did not commenton facts related to the evidence. (97 RT 20551-20553.) Additionally, the court excluded two other defense boards because they were not responsive to the jury’s request. (97 RT 20541-20544.) Under these circumstances, the court’s actions were a proper exercise of its discretion in facilitating a verdict, not directing one in particular. Further, inasmuchas appellant contends the court promised the jury the moon and then reneged onthis, given its rulings on three of the defense boards, the court madeclear to counsel that any additional request by the jury would be subjectto the limitation that it aid in consideration of the evidence. (97 RT 20529.) Evenif the court erred, there was noprejudice.” The court expressly, and repeatedly, instructed that the charts were only to be usedto aid in “° Appellant argues for application of a standardof “‘heightened scrutiny.” (AOB 184.) However, the cases from this Court he cites (continued...) 153 discussions of the evidence; they were not evidence themselves. (97 RT 20530-20531 , 20538-20539.) It is presumed the jury understood and followed the instruction. (People v. Jablonski (2006) 37 Cal.4th 774, 834.) Moreover, at the point the charts were provided, the jury had already deliberated for about 21 hours. (96 RT 20509.) After receiving the charts, the jurors deliberated for approximately another six hours before returning a verdict.*'! Therefore, the bulk of the deliberations occurred without benefit of the parties’ charts. F. The Trial Court Properly Denied Appellant’s Motion for a Mistrial Because There Was No Merit to Appellant’s Contention that the Court Coerced a Death Verdict Asstated above,a trial court’s denial of a motion for a mistrial is reviewed underthe deferential abuse-of-discretion standard. (People v. Gonzales, supra, 52 Cal.4th at p. 314.) Because appellant failed to show that the trial court’s actions— _ individually or in combination—coerced a death verdict, his motions for a mistrial were properly denied. The court’s decision to deny the motion for a mistrial was an appropriate exercise of discretion and, accordingly, did not itself serve to coerce a verdict. Moreover,if any of the court’s instructionsor rulings, geared toward facilitating the jury’s deliberations, were improper, there is no reasonable probability that the outcome wasaffected. (See People v. Brown (1988) 46 Cal.3d 432, 446-448 [error in the penalty phase of capital trial that is not of (...continued) concern the potential for prejudice in capital cases, which involved issues ofjoinder and severance of inflammatory charges. *' The boards wentto the jury early in the afternoon session on June 1. (12 CT 3201.) The jurors returned to deliberations at 1:00 p.m. on June 5 (12 CT 3213) and returned a verdict at the start of the afternoon session on June 6 (97 RT 20573). 154 federal constitutional dimension is subject to harmless-error analysis under the reasonable-possibility test].) The prosecution’s presentation of evidence on the circumstances of the crimes wasincredibly compelling. The gravamenofthe evidence was that appellant planned the murders, enjoyed executing his victims, and did so either because he needed moneyor because he wanted to exact revenge. The jury also heard gripping evidence on how the murders impacted family membersofthe victims. On the other hand, appellant’s call for mercy which argued, in essence, that he carried out the murders because he had a tough childhood and used drugs, fell well short of convincing the jury that his life should be spared. This was not a close question on the issue of penalty. Further, any error was ameliorated by thetrial court’s repeated admonitions, which madeclear to the jury that they were to render individual opinions on the question of penalty based solely on the evidence presented. | Last, since there was no abuseofdiscretion in denying appellant’s motions, there was no federal constitutional error. (See People v. Staten, supra, 24 Cal.4th at p. 448, fn. 1 [finding no predicate error on which federal constitutional claims can be based].) V. THE PROSECUTOR’S ACTIONS DID NOT, SINGLY OR IN COMBINATION, CONSTITUTE PREJUDICIAL MISCONDUCT Appellant contends that a pervasive pattern of prosecutorial misconduct renderedhis trial fundamentally unfair. Accordingly, he seeks “reversal of the guilt and penalty judgments. (AOB 205-288.) Respondent disagrees. Noneofthe instances appellantcites in support of his claim—either singly or in combination—constitute prejudicial misconduct. Thus, reversal of either verdict is unwarranted. 155 A. General Legal Principles Aprosecutor’s conductviolates the federal Constitution when it is “so egregiousthat it infects the trial with such unfairness as to make the conviction a denial of due process,” whereas a prosecutor’s conduct that does not rendera criminal trial fundamentally unfair is prosecutorial misconduct understate law only if it involves “the use of deceptive or reprehensible methods to persuade either the court or the jury.” (People v. Hill (1998) 17 Cal.4th 800, 819; People v. Samayoa (1997) 15 Cal.4th 795, 841; People v. Gionis (1995) 9 Cal.4th 1196, 1214.) This Court noted the “critical inquiry on appeal is not how many timesthe prosecutor erred but whetherthe prosecutor’s error renderedthetrial fundamentally unfair or constituted reprehensible methods to attempt to persuadethe jury.” (People v. Hinton (2006) 37 Cal.4th 839, 864.) | An appellate court generally reviewsa trial court’s ruling on prosecutorial misconduct for abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 213.) B. There Was No Prejudicial Misconduct Related to the Prosecutor’s Verbal or Non-Verbal Communication Appellant complains the prosecutor used prejudicial inflammatory and derogatory language during the entirety of the proceedings. Specifically, appellant points to the prosecutor’s repeated use of the following words: 399 666 999 666 999 666 999 666““ludicrous,’” ““‘ridiculous,’” “‘preposterous,’” “‘outrageous, outrage,” ““offensive,’” “‘umbrage,’” “‘aghast,’”“‘shock,’” and, “ bull.’” (AOB 217.) | Asa threshold matter, it is axiomatic that vigorous representation is not the equivalent of misconduct. (People v. Valencia (2008) 43 Cal.4th 268, 301.) The prosecutor’s perceived penchant for descriptive language 156 falls far short of reprehensible methods constituting prosecutorial misconduct.” (See People v. Stitely (2005) 35 Cal.4th 514, 559-560 [not improperfor the prosecutor to warn the jury notto “fall[] for’ defense Gee 999 counsel’s “‘ridiculous efforts to let the defendant “‘walk’” free; nor wasit improper to describe counsel’s attack of victim as “‘outrageous””]; see also People v. Dykes (2009) 46 Cal.4th 731, 771-772 [prosecutor’s comment during closing argument that he was “‘shocked’” that someone of defense counsel’s reputation would interject race into the trial was not prejudicial misconduct].) Appellantalso arguesthat the prosecutor, George Dunlap, derogated and personally attacked defense counsel, Michael Fox, and, in the process, misled the court. (AOB 219.)In support ofthis contention, appellant cites Dunlap’s statements to the court on October 18, 1999, outside the presenceof the jury, concerning Fox’s ongoing absence from the proceedings and perceived infirmities with a medical excuse Fox proffered in absentia. (AOB 219.) However, when viewedin the proper context, the prosecutor did not inappropriately attack Fox or mislead the court. The previous two weeks, on October 4 and October 12, Fox was absent from the proceedings due to an undisclosed medical problem. (61 RT 12385, 12392.) On October 12, second-chair defense counsel Slote, who wassupposed to appear that day, was also absent. (61 RT 12392.) “ Of appellant’s 30 specific citations to the record (AOB 217), approximately 27 instances occurred outside the presence of the guilt and penaltyretrial juries. *? Appellant seemsto suggest that since Fox had the “enormous responsibility of defending a multiple-murder defendant in [counsel’s] first capital case” (AOB 219), the prosecutor—andthe court—should have been especially sensitive to Fox’s responsibilities and inexperience. This, more than anything appellant accuses the prosecutor of doing, demeans Fox’s integrity and apparentabilities. 157 This prevented the court from setting a date for the penaltyretrial. Dunlap expressed his frustration that he was not provided notice about counsel’s absenceandthat there had already been a two and one-half week delay in choosinga trial date. Now, there would be an additional delay until October 18. (61 RT 12392-12934.) Dunlap pointed outthat the prosecution team, and the court, traveled two hours to Alameda County for nothing. (61 RT 12394.) The court ordered that Fox personally appear on October 18 or, in lieu of a personal appearance,that he produce a statement from his physician stating when he would be ready to proceed with the retrial. (61 RT 12395-12399.) On October 18, Slote presented a note to the court from a county health clinic doctor, which stated Fox could return by November 1. (61 RT 12402-12404.) However, Slote was quick to caution the court that the time estimate might not be reliable because the note was only for the purpose of letting “your boss know you’re going to be gone for such and such time. (61 RT 12404-12405.) At that juncture, given that three weeks had passed and there wasstill no reliable time estimate from the defense, Dunlap questioned—basedonhis personal knowledge of such clinics—whetherthe note was, in fact, authored by a doctor or, as was Dunlap’s experience, by a nurse practitioner. (61 RT 12405-12406.) This was not an attempt to misleadthe court, as appellant contends. Dunlap wastryingto geta trial date. He also observed that there was no information in the note about the nature of Fox’s illness. (61 RT 12406.) The prosecutor was concerned further delaying closure for the victims’ families. (61 RT 12407.) He also expressed frustration with another fruitless two-hour trip to Alameda County. (61 RT 12407.) Based on the circumstanceofthe previous three weeks, Dunlap believed the defense was purposefully delaying the start of the retrial. (61 RT 12407-12409.) 158 In light of these circumstances, Dunlap’s actions, as well as his views, did not constitute reprehensible conduct. Dunlap,rightfully, questioned the reliability of the medical excuse becauseit directly impacted the court’s ability to set a date forthe retrial. This is especially true in light of Slote’s accompanying qualification that the date ofNovember | wasnot certain. Also, contrary to appellant’s contention (AOB 219), Fox’s interests did not go unrepresented during the proceedings. The record demonstrates that co- counsel Slote was present and spoke on Fox’s behalf. (61 RT 12410- 12411.) Appellant next challenges the prosecutor’s purported prejudicial proclivity for editorializing during questioning of witnesses—defense experts, in particular. (AOB 223-246.) Appellant cites a number of instances wherethetrial court sustained defense objections to the argumentative nature of the prosecutor’s questioning. However, sustained objections do not serve to transmute the questioning into misconduct. (People v. Mayfield (1997) 14 Cal.4th 668, 755 [a party generally is not prejudiced by a question to which an objection has been sustained]; see People v. Pinholster (1992) 1 Cal.4th 865, 943, disapproved on other grounds in People v. Williams (2010) 49 Cal.4th 405, 459.) Even if appellant’s criticisms of the form of some of the prosecutor’s individual questions were valid, there is no showing that, viewed in context, the prosecutor’s cross-examination of the defense witnesses constituted misconduct, muchless that it was so prejudicial as to deprive appellant of a fair trial. (See People v. Earp (1999) 20 Cal.4th 826, 860 [prosecutor’s aggressive questions based on evidence admitted at trial not misconduct]; see also People v. Hinton, supra, 37 Cal.4th at pp. 864-865 [finding no 159 prejudice from sustained objections to “asked and answered” questions or from “a series of leading questions” on foundational matters].)“* Notably, although appellant argues the conduct in question “poisoned the trial” (AOB 246), he does not specifically contend that the prosecutor’s examination of any witness resulted in the deliberate production of inadmissible evidence or called for inadmissible and prejudicial answers. On the contrary, a review of the colloquies demonstrates that, to the extent that the witness answered the prosecutor’s questions or comments,it was evidence that could properly have beenelicited by questions not objectionable in form. In any event, there was no prejudicial misconduct. Although the prosecutor should have abstained from editorializing, he wasentitled to attempt to show that the defense witnesses were biased andthat their opinions concerning the reasons why appellant committed the murders— family dysfunction and methamphetamine abuse—should not be given any weight by the jury. (See People v. Sandoval (1992) 4 Cal.4th 155, 180, affd. sub nom. Victor v. Nebraska (1994) 511 U.S. 1.) Further, the trial court’s charge to the guilt phase and penalty retrial juries ensured that any misconduct wasnotprejudicial. The instructions included that the jurors were to base their decision on the evidence adduced at trial (48 RT 9889, 9893; 96 RT 20420), that statements of the attorneys were not evidence (48 RT 9890, 9895; 96 RT 20420), that they alone were “ In Hinton, the defendant complained ofprosecutorial misconduct based on the prosecution’s direct examination of a witness becausethetrial court sustained 34 defense objections, admonished the prosecution 10 times, ordered a responsestricken 5 times, and held 9 sidebar discussions. In response, this Court noted the “critical inquiry on appeal is not how many times the prosecutor erred but whether the prosecutor’s error rendered the trial fundamentally unfair or constituted reprehensible methods to attempt to persuade the jury.” (People v. Hinton, supra, 37 Cal.4th at p. 864.) 160 to judge the credibility of the witnesses (48 RT 9902; 96 RT 20422), if an objection wassustained to a question, not to guess what the answer might have been or speculate as to the reason for the objection (48 RT 9890, 9895; 96 RT 20420), not to assumeto be true any insinuation suggested by a question (48 RT 9890, 9895; 96 RT 20420), and notto consider for any purpose evidencethat wasstricken by the court (48 RT 9890, 9895; 96 RT 20420). It is presumed the jurors followed these instructions. (See People v, Holt, supra, 15 Cal.4th at p. 662.) C. The Prosecutor Did Not Engagein Deceptive Practices or Intentionally Ignore the Trial Court’s Rulings Appellant also contends the prosecutor repeatedly flaunted the court’s rulings and engagedin other deceptive practices, which resulted in prejudice. (AOB 246-257.) As an example of misconduct, under this heading,appellantfirst points to the prosecutor’s occasional use of the word “murder,” during the guilt phase, to refer to the killings. (AOB 246-247.) First, insofar as the court sustained any defense objection to the prosecutor’s use of the word, there was no prejudice. As argued above, a party generally is not prejudiced by a question to which an objection has been sustained (People v. Mayfield , supra, 14 Cal.4th at p. 755; see People v. Pinholster, supra, | Cal.4th at p. 943.) Furthermore, the record does not suggest, nor does appellant argue, that these references improperly conditioned the jury to find appellant guilty of the alleged murders. Appellant admitted planning and committing the killings for revenge and for monetary gain and there was overwhelming evidence that corroborated his confession. Also, the jurors were instructed not to assumethe truth of “any insinuation” suggested by a question asked of a witness. (48 RT 9890, 9895.) In short,there was no prejudice in the 161 guilt phase that resulted from the prosecutor’s use of the word “murder”in referring to the killings. Likewise, with respect to that portion of the prosecutor’s direct examinations of Rodney Dove and Detective Johnson during the guilt phase (AOB 247-251), which ran contrary in somefashion to the court’s rulings, there was no prejudice. Given the overwhelming evidence of appellant’s guilt, whether other Charter Way Tow truck drivers passed drugtests or whether police found an inoperable antique shotgun in appellant’s possession, in addition to the murder weapon,had no bearingonthe verdicts. Further, with respect to the prosecutor’s questioning of Detective Johnson that resulted in the shotgun testimony, the court admonished the jury at length: [A] momentago, there [were] questions posed to Detective Johnson, who was going through his inventory in the search. And mentioned a shotgun was found. [{] That was specifically an order of the Court that that not be mentioned in any fashion. And it was a violation of the Court’s order to have the question asked. [9] What you need to understand is the Court made its ruling because it was a nonfunctional firearm. Had nothing to do with this case. It was of antique value. It was in the house. had nothing to do with evidentiary value, which is why I excludedit. [§] It was gone through by Detective Johnson, and in an inadvertent fashion, presented in his testimony. That’s whyI have to deal with that. [|] You are not to considerit [in] any fashion. And understand that the question was asked in violation of the Court’s order. (33 RT 6881.) Additionally, appellant’s complaint that the prosecutor’s questioning of Officer Happelcalled for prejudicial hearsay evidence regarding the fact that several of the cars in the Cal Spray parking lot had car alarms,is without merit. There was no prejudice. The prosecutor properly elicited the information later through the testimony of Officer Happel (79 RT 16380-16382) and Shayne Goodman (82 RT 16899-16901). 162 Asfor the prosecutor’s display and use of mannequinsto represent the murdervictims, there was no prejudice. The mannequins were formally entered into evidenceat the guilt phase and used by the prosecution’s forensic pathology expert during the guilt phase and penalty retrial to illustrate the location and angle of the victims’ wounds. (30 RT 6007-6008; 32 RT 6498 [People’s Exh. No. 672, Loper]; 32 RT 6333-6335, 6493 [Exh. No. 673, Chacko]; 33 RT 6663-6664, 6781 [Exh. No. 674, Yu], 6644, 6780 [Exh. No. 675, Gao]; 82 RT 17115-17116 [Loper], 17139 [Chacko], 17159 [Yu], 17168 [Gao].) This evidence wasrelevant to appellant’s intentto kill and the issue of premeditation and deliberation. This Court has approved the use of such evidence. (People v. Medina (1995) 11 Cal.4th 694, 754 [finding notrial court error in permitting prosecution to use life-size mannequin during guilt and penalty phases, including allowing mannequin into jury room during deliberations]; see also People v. Cummings (1993) 4 Cal.4th 1233, 1291 [use of mannequinsfacilitates jury’s understanding of witness testimony or circumstances of crimes]; People v. Brown (1988) 46 Cal.3d 432, 442-443.) Asfor possible prejudice, the Court has observed that “[t]he trial court wasin a far better position than weto assess the potential prejudice arising _ from the display of such physical evidence.” (People v. Medina (Medina I) (1990) 51 Cal.3d 870, 899.) Here, when defense counsel articulated concerns about the presence of the mannequins,the trial court took reasonable steps to minimize any prejudicial effect on the jurors. (34 RT 6995 [guilt phase]; 79 RT 16433[penalty retrial]; 85 RT 17852 [penalty retrial]; 90 RT 18944 [penaltyretrial].) Last, the prosecutor did not intentionally misrepresent a discovery violation involving Doctor Amen’s raw data, as appellant contends (AOB 255-256). During the course of prosecution expert Doctor Mayberg’s testimony in the guilt phase, it became clear the defense had raw data 163 corresponding to Doctor Amen’s scansin its possession, which the prosecution did not. (46 RT 9387-9390.) Doctor Mayberg believed the raw data was “quite significant” to her opinion and testimony. (46 RT 9387.) Although defense counsel maintained the information was provided to the prosecution, he could not produce the form the prosecutor would have signed, acknowledging receipt of the discovery. (46 RT 9390.) The court ordered defense counsel to make copies of the data from the defense files. (46 RT 9390.) Defense counsel unsuccessfully attempted to avoid turning overthe data. (46 RT 9391-9392.) Subsequently, at the penalty retrial, defense counsel stated his intention to cross-examine Doctor Mayberg as to why she wasprepared to offer an opinion in the guilt phase without havingall of the relevant information—the raw data that the defense could not confirm was turned over to the prosecution and which the prosecution never received. (93 RT 19706-19707.) The prosecutor characterized this deceptive tactic as “intentional misconduct” on Fox’s part because it would mislead the jury into thinking that Doctor Mayberg had the raw data available to her before she testified, which she simply chose to ignore. (93 RT 19707.) Thus, there wasnothing inappropriate about the prosecutor’s representations to the trial court about the Fox’s machinations involving the raw data discovery. D. The Prosecutor Did Not Commit Prejudicial Misconduct in His Opening Statement or Closing Arguments Next, appellant challenges as prejudicial misconduct specific comments the prosecutor made in his opening statement in the penalty-phaseretrial and in his closing argumentsin all three phases ofthe trials. (AOB 256-282.) 164 Wedisagree. First, appellant has forfeited his right to challenge some of the remarks on appeal. Otherwise, the remarks at issue were not improper. However, if any were, appellant wasnot prejudiced. A prosecutor is given widelatitude to vigorously argue the case, make _ remarks based on the evidence and inferences drawn from the record, and use appropriate epithets and harsh and colorful language. (People v. Hill, supra, 17 Cal.4th at p. 819; People v. Arias (1996) 13 Cal.4th 92, 162; People v. Earp, supra, 20 Cal.4th at pp. 862-863.) However,the prosecutor should not mischaracterize the evidence, refer to facts not in evidence unless they are matters of common knowledge or drawn from common experience, misstate the law, urge the jury to view the crime through the victim’s eyes, or attack the integrity of defense counsel. (People v. Hill, supra, 17 Cal.4th at p. 823; People v. Bell (1989) 49 Cal.3d 502, 538; People v. Arias, supra, 13 Cal.4th at pp. 160, 162.) When evaluating the propriety of the prosecutor’s comments to the jury, “the question is whether there is a reasonable likelihood thatthe jury construed or applied any of the complained-of remarks in an objectionable fashion.” (People v. Berryman (1993) 6 Cal.4th 1048, 1072, overruled on other grounds in People v. Hill, supra, 17 Cal.4th at p. 823, fn. 1.) Appellant specifically contends that, during guilt-phase argument, the prosecutor committed misconduct when he impermissibly vouched for prosecution expert witness Mayberg while, at the sametime, denigrating the opinions of the defense experts. (AOB 258-259.) Not so. There was nothing improper about the remarks. Impermissible “vouching” may occur where the prosecutor places the prestige of the government behind a witness through personal assurances of the witness’s veracity or suggests that information not presented to the jury supports the witness’s testimony. (People v. Heishman (1988) 45 Cal.3d 147, 195.) Here, considered in context, the examples cited amounted to 165 permissible argument, derived from facts in the record, and directed to the credibility of expert witnesses, not the personal statement of the prosecutor vouching for his own expert’s credibility. “‘Harsh and vivid attacks on the credibility of opposing witnesses are permissible, and counsel can argue from the evidence that a witness’ testimony is unsound, unbelievable, or even a patent lie.’” (People v. Valencia (2008) 43 Cal.4th 268, 305; see also People v. Huggins (2006) 38 Cal.4th 175, 253.) Nor was the prosecutor’s reference to the defense “brain science” testimony as “bull,” as appellant contends (AOB 259-260). It wasfair comment on the evidence. Also, the prosecutor’s comments during his guilt-phase rebuttal argument, which characterized the content of defense counsel’s closing argumentas “two hours of bull,” constituted fair comment on the defense evidence. A prosecutoris not limited to “Chesterfieldian politeness” in argument and may use “appropriate epithets.” (People v. Wharton (1991) 53 Cal.3d 522, 567-568.) Insofar as appellant contends the prosecutor misstated the law during his argument when he suggested the defense brain science evidence wasill- suited to the guilt phase of the trial, there was no prejudice. Even if improper, the trial court instructed the jury that the statements of the attorneys were not evidence (48 RT 9890, 9895), and that if anything the attorneys said conflicted with the court’s instructions, they were to follow the instructions (48 RT 9889). The instructions addressed the brain science evidence and its relevance to the jury’s consideration of the charges. (48 RT 9916.) Also, there could be no prejudice given the overwhelming. evidence of appellant’s premeditation and deliberation andintent to kill. Asfor appellant’s contentions related to the prosecutor’s argument during the first penalty phase (AOB 260-264), they are moot or otherwise irrelevant since the jury did not return a verdict. In any event, the comments were not misconduct. Useofthe term “serial killer’ was not 166 inappropriate. (People v. Maury (2003) 30 Cal.4th 342, 419 [prosecutor’s reference during argument to defendant, who committed three murders, as a “serial killer” was an “apt” description ].)*° As for use of the term “bull,” while it may have been impolite, it was not misconduct. (See People v. Wharton, supra, 53 Cal.3d at pp. 567-568.) With respect to the penalty retrial, appellant contends the prosecutor impermissibly interjected argumentinto his opening statement. (AOB 267- 269.) However,“[t]he function of an opening statementis not only to inform the jury of the expected evidence, but also to prepare the jurors to follow the evidence and morereadily discern its materiality, force, and meaning.” (People v. Dennis (1998) 17 Cal.4th 468, 518.) To the extent that any of the cited examples exceeded these limits, there was no prejudice since the court sustained defense objections as appropriate (77 RT 16010, 10653-10654), and the jury was instructed that the statements of the attorneys were not evidence (96 RT 20420). Concerning the prosecutor’s closing argumentin the penaltyretrial, appellant cites 10 separate instances ofpurported misconduct. (AOB 270- *° As this court recently reiterated in People v. Garcia (2011) 52 Cal.4th 706, 759-760: Prosecutorial argument “may include opprobrious epithets warranted by the evidence. [Citation.] Where they are so supported, we have condoned a widerange of epithets to describe the egregious nature of the defendant’s conduct.” (People v. Zambrano [2007] [] 41 Cal.4th 1082, 1172 [defendant is “‘evil,’ a liar, and a ‘sociopath’”]; see People v. Friend [2009] [] 47 Cal.4th 1, 84 [defendant is an “ ‘insidiouslittle bastard,’ with ‘no redeeming social value,’ and being ‘without feeling” or “ ‘sensitivity’”]; People v. Farnam (2002) 28 Cal.4th 107, 199-200 [121 Cal. Rptr.2d 106, 47 P.3d 988] [defendant is a ‘monster,’ an ‘extremely violent creature,’ and the ‘beast who walks upright’”’].) 167 275.) Yet, he concedes that defense counsel did not interpose a contemporaneousobjection or make a request for a curative admonition at trial to the last five. (AOB 274, fn. 152.) Therefore, he has forfeited that portion of his claim, which encompasses these comments. (See Peoplev. Brown (2003) 31 Cal.4th 518, 553; People v. Price, supra, | Cal.4th at p. 447.)"° With respect to the remaining four instances, appellantfirst argues that the prosecutor’s reference to Stephen Chacko’s murderas a potential | “freebie” was a misstatement of the law as it suggested to the jury that appellant would evade punishmentfor three of four murders,if their verdict waslife imprisonment. (AOB 270-271.) “However, arguments of counsel ‘generally carry less weight with a jury than do instructions from the court. The formerare usually billed in advanceto the jury as matters of argument, not evidence [citation], and are likely viewed as the statements of advocates; the latter, we have often recognized, are viewed as definitive and binding statements of the law.’ (Boyde v. California (1990) 494 U.S. 370, 384 [108 L. Ed. 2d 316, 110 S. Ct. 1190].)” (People v. Mendoza (2007) 42 Cal.4th 686, 703.) Even charitably construing the comment as improper, there was no prejudice given the court’s instructions, including that the jury was obligated to follow the court’s instructions in the event the attorneys’ statements conflicted with the law. (96 RT 20419.) Next, appellant challenges the prosecutor’s use of the term “serial killer” in his penalty retrial argument. (AOB 271.) As we stated above, use of the term “serial killer” was proper argument. “© Inasmuch as these comments were broughtto the trial court’s attention in a defense motion for a mistrial, which was denied (96 RT 20228-20231, 20392), the court’s decision is entitled to deference. (See People v. Alvarez, supra, 14 Cal.4th at p. 213.) 168 Asfor the prosecution’s references to the murder weapon and the victims’ fear (AOB 272-273), the comments may have been misconduct had they occurred in the guilt phase, but the comments were not misconductin the penalty phase. (See People v. Jackson (2009) 45 Cal.4th 662, 691-692.) - With regard to the prosecutor’s reference to the fact—arguably outside the evidence—that Doctor Rogerson personally knew the prosecutor and defense counsel (AOB 274), the remarks did not prejudice appellant because they were exceedingly brief and the defense objection wassustained. Last, appellant maintains the prosecutor committed misconduct during his penalty retrial argument when he made improperreferences to appellant’s lack of remorse and a lack of corroboration of remorse to support Doctor Amen’s opinion. (AOB 278-282.) Appellant’s argument in this regard is based on numerousallegations ofjudicial error, embodied in Arguments VI, IX, X, and XI, post. Becausethe trial court’s rulings were proper, as we argue, post, the prosecutor’s comments during argument, which were based on these rulings, were appropriate. In any event, if the trial court’s rulings were error—in whole or in part—the prosecutor cannot be faulted for abiding by the court’s rulingsat the timeoftrial. E. No Prejudice Resulted from the Prosecutor’s Conversations with Victims’ Family Members Which Were Overheard by Others Appellant’s last category ofpurported prejudicial misconduct is that the prosecutor engagedin reckless and prejudicial conduct in the courtroom by talking to victims’ family members within earshot of others. (AOB 282- 288.) First, appellant maintains that misconduct occurred, during the guilt phase,as a result of the prosecutor’s comments, made within hearing range 169 of alternate jurors, which were geared toward keeping victims’ family members apprised of what had occurred during thetrial and what was anticipated to occur. (AOB 282-284.) Although appellantalleges that he was prejudiced (AOB 282), he does not explain how. Thetrial court found that no one, including the alternate jurors, was affected by the prosecutor’s comments. (49 RT 10268-10269.) Thetrial court’s determination is entitled to deference on appeal. (See People v. Alvarez, supra, 14 Cal.4th at p. 213.) Next, appellant contends that, during the penalty retrial, the prosecutor committed prejudicial misconduct when he made comments about defense witness Quigel to one victim’s family members, which were overhead by the wife of Juror Number 7. (AOB 284-288.) Defense counsel brought a motion for a mistrial based on the incident. (88 RT 18506-18509.) The trial court conducted an inquiry, including calling the victim’s family members, Juror Number 7, and Juror Number 7’s wife to testify on the matter. (88 RT 18478-18493.) The juror’s wife overheard the prosecutor discussing the timeline for the trial. Although she heard him mention Quigel’s name,shetried not to listen. (88 RT 18480- 18482.) Juror Number7 said that his wife remarked to him that the man in the jumpsuit was interesting (referring to witness Quigel, who was in custody), but that they did not discuss anything his wife may have overheard. (88 RT 18484.) ; The court denied the motion for a mistrial. (88 RT 18517.) It found there was no prejudice that occurred with regard to Juror Number 7. The court also found that while the transgression wasnotintentional,it termed the prosecutor’s conduct “reckless” and “absolutely inexcusable.” (88 RT 18516-18517.) The prosecutor responded: “I sincerely apologize, Your Honor. It will not happen again.” (88 RT 18518.) Thetrial court’s denial 170 of the mistrial motion, finding there was no prejudice, is entitled to deference. (See People v. Alvarez, supra, 14 Cal.4th at p. 213.) F. Appellant Has Not Established Prejudice Appellantasserts that, even if no single incident warrants reversal on its own, the extensive nature of the prosecutor’s misconduct contributed to a pattern of unfairness and prejudice that render the guilt and penalty verdicts infirm. (AOB 288-289.) Appellant’s claim of prejudice is without merit and should be rejected. Even if prosecutorial misconduct occurred, reversal is not required unless appellant can demonstrate that a result more favorable to him would have occurred absent the misconduct or with a curative admonition. (People v. Arias, supra, 13 Cal.4th at p. 161.) In this case, any reasonable jury would have reached the same verdict in the absence ofthe alleged instances of prosecutorial misconduct. (People v. Bolton (1979) 23 Cal.3d 208, 214.) Despite the guilt phase jury’s careful consideration of the capital charges, the evidence of appellant’s guilt was ironclad. There was no dispute that appellant carried out the murders. Theonly conceivable question for the guilt phase jury was whether, due to methamphetamineabuse, appellant could form the requisite intent to kill and premeditate and deliberate. Yet, the evidence overwhelmingly demonstrated that appellant went on a meticulously planned six-month crime binge, which culminated in a series.of murders, over a two-weekperiod, carried out for the purposes of revenge and monetary gain. The jury soundly rejected the defense theory that appellant was brain damaged, which caused him to act impulsively. With their verdicts, the guilt phase jury found that appellant murdered methodically and with purpose. Asfor the penalty verdict, the evidence in aggravation so substantially outweighed the evidence in mitigation that a death verdict was compelled— 171 based not only on the evidence, but also on the moral considerations attending that evidence. Amongthe horrific circumstances of appellant’s crimes, the penalty- phase jury heard evidence that appellant always wanted to know whatit would be like to murder someone and go on crimespree. (83 RT 17376.) The jurors also learned that appellant carefully lured unsuspecting James Loperto his death and ambushed him with a hail of bullets, even as Loper tried desperately to find refuge under his truck. Appellant did so out of revenge because appellant thought Loper was a “goody two-shoes” and an “asshole.” (94 RT 19784, 19788.) The jury heard from Loper’s mother Hazel that she saw the emergency vehicles at Eight Mile Road on her way to work, not knowing that her son’s body lay there riddled with bullets. (84 — RT 17456.) Further, the jury heard evidence that on her way to work, Anice Chacko stopped by the store where her husband worked and saw thatit “was covered with plastic tape.” (84 RT 17468.) Appellant murdered Stephen Chacko for money. (94 RT 19786.) Appellant’s actions left Anice to try and explain to one of their young sons whyhis dad wasin a “special bed” and unable to speak to him. (84 RT 17467.) Anice, pregnantat the time of the murders with the couple’s third child, and without financial means, was forced to relocate to India, where Stephen’s family lived. (84 RT 17465-17466.) The jury learned that appellant joked about gunning down Jun Gao and Besun Yu and extinguishing their lives with only a couple of bullets each. (83 RT 17376-17377.) In the case of Gao, he was found with his head laying in a pool of blood andhis teeth scattered about his head. Appellant shot Gao through his neck and the bullet traveled through Gao’s jugular vein and out his mouth. (82 RT 16970, 1717) Appellant shot Yu while she helplessly crouchedin a fetal position. (82 RT 16973, 17168.) 172 Amongthetrail of destruction left in appellant’s wake, five children lost their fathers and three lost their mother. (83 RT 17429, 17463-17364, 17470, 17478, 17483.) *’ On the other hand, the evidence in mitigation, in essence, was that appellant had a dysfunctional childhood—atthe handsof his parents and youth counselor—which caused him to be addicted to methamphetamine as an adult. His addiction altered his brain to the extent that he was not thinking correctly when he committed his crimes. This latter contention was an issue that wasstrongly disputed by the prosecution’s experts. In sum,at best, there may have been several instances where the prosecutor’s conduct crossed the lines of appropriate advocacy, but individually or in combination, and judged by any standard ofprejudice, the cited instances cannothave influenced either the guilt or penalty outcomes. Therefore, there is no basis for reversal. VI. THERE WAS NO TRIAL COURT ERROR, OR PROSECUTORIAL MISCONDUCT, WITH REGARD TO THE ISSUE OF REMORSE Appellant challenges as reversible error thetrial court’s rulings excluding certain proffered hearsay evidence of appellant’s remorse during the penalty phase retrial. (AOB 290-335.) He also argues the prosecutor committed prejudicial misconduct in arguing an absence of remorse. Accordingly, appellant argues the combinedeffect violated numerous federal constitutional rights, as well as state statutory rights. (AOB 290.) Appellant’s claim is without merit. The trial court’s exercise of discretion in excluding certain hearsay evidence of appellant’s remorse was proper in that the proffered evidence was lacking in trustworthiness. *” Asstated earlier, victim impact evidence was unavailable for Jun Gao. (49 RT 10306.) 173 Likewise, the prosecutor’s argument on the subject was proper. In any event, any error or misconduct was harmless. A. Procedural History 1. Testimony of clergy members Duringpretrial hearings in the penalty phaseretrial, on March 7, 2000, defense counsel argued extensively in support of admitting the testimony of Pastor Kilthau and Reverend Skaggs on the subject of appellant’s remorse. (76 RT 15814-15836.)® The prosecutor responded andreiterated his opposition to admission of the proffered testimony. (76 RT 15837-15842.) Before ruling on theissue, the trial court stated that it had reviewedall of the pleadings the defensefiled in support of its motion to admit the testimony and motion for reconsideration,” as well as the relevant transcripts of previous hearings on the issue. (76 RT 15843.) The court stated that its chief concern wasthe unreliability of the testimony, as suggested by the timing of the Skaggs and Kilthau’s contacts with appellant. (76 RT 15843.) The contacts occurred “long after the defendant was in custody, long after the defense strategy was in progress.” (76 RT 15843.) With particular regard to Pastor Kilthau, the court noted that while the pastor initiated the contact, there was no follow-up on the part of the pastor. (76 RT 15844.) Kilthau visited appellant a couple of months later, at appellant’s invitation. (76 RT 15846-15847.) Before that time, defense experts were already meeting with appellant. (76 RT 15847-15848.) The *® This is but one of numerousinstancesofthetrial court permitting the defense ample time to makeits record, contrary to appellant’s repeated suggestions to the contrary. Additionally, on a subsequent occasion, second-chair counsel Laub thanked the court for its consideration in permitting the defense to argue a different evidentiary issue at length. (82 RT 17020.) * See 52 RT 10918-10919. 174 court observed that while this Court’s discussion of a similar issue in People v. Livaditis [(1992) 2 Cal.4th 759] was dicta, the logic and reasoning inherent in the discussion were compelling. (76 RT 15849.) The court found the particular circumstances attending Skaggs and Kilthau’s proffered testimony were notsufficiently reliable to admit their testimony on the matter of remorse. However,the trial court left open the possibility that the defense could introduce evidence of appellant’s remorse from a source other than appellant. (76 RT 15849-15851.) On March 21, upon motion ofthe defense, the court, again, reconsidered its earlier ruling. The defense presented a new case, People v. Ervin [(2000) 22 Cal.4th 48], in support of its argument that Reverend Skaggs be permitted to testify on the subject of remorse. (79 RT 16529.) The court found the case inapposite because it did not concern the question at issue: whether clergy members could testify about a defendant’s remorse during the penalty phase. Defense counsel Fox asked the court to delay ruling until co-counsel Laub could argue the issue. The court agreed. (79 RT 16529-16532.) When the matter was heard again on March 28, Laub arguedthat Ervin compelled the court to reverseits earlier rulings, even though the issue in the case was whether a clergy membercouldtestify to his or her opinion regarding the sincerity of a defendant’s religious beliefs. (82 RT 17050-17055.) The court disagreed, observing that this Court’s discussion in Ervin was dicta, as was the case in Livaditis. However, even if Ervin was controlling, appellant’s argumentfailed because in Ervin, the defendant had far more contacts and, hence a moresubstantial relationship, with the clergy member. Unlike Ervin, the trial court did notfind that a substantial relationship existed between appellant and Skaggs sufficient to permit Skaggs to render an opinion on whether appellant wastruly remorseful. (82 RT 17050-17055.) Yet, the court advisedcounsel that it was open to 175 Skaggstestifying to his viewof appellant’s character and why the death penalty was not warrantedin his case. (82 RT 17062.) The court reiterated its earlier rulingsthat neither clergy member would be allowedtotestify on their opinion of whether appellant was sincerely remorseful. (82 RT 17063.) 2. Letters Prior to the start of the first penalty phase, the court and parties initially discussed admission ofcertain letters that appellant wrote to Pastor Kilthau. The court stated that it would take some time to consider the matter. (50 RT 10387-10411.) The court later ruled the letters were inadmissible since they were a de facto form of impermissible allocution, in addition to possessing insufficient indicia ofreliability. (51 RT 10665- 10668.) | The court andparties also discussed, at length, letters appellant wrote to his family members. The court ordered numerousredactions in the cases of those passages that were unreliable and inadmissible or otherwise prejudicial. (51 RT 10597-10643.)”° 3. Relevant testimony The following relevant testimony was adduced during the penalty phaseretrial: | During the course of defense witness Doctor George Woods’s testimony, Woodsstated that, in his opinion, appellant was truly remorseful and had accepted responsibility for his crimes. (90 RT 18936.) Woods’s opinion wasbased, in part, on his interviews of Reverend Skaggs and Pastor Kilthau (90 RT 18872) and his interviews of appellant (90 RT 3°° Appellant cites to the specific redactionsin his brief. (AOB 320- 322.) 176 18871). Woods explained that, in the intervening time since appellant’s arrest, appellant had gained someclarity and a greater understanding of his crimes. (90 RT 18935-18536.) During the interviews, appellant also exhibited a great deal of emotion andcried frequently. (90 RT 18939.)°' In Woods’s view, appellant was psychologically impaired right up until the day of his arrest. (90 RT 18939.) Reverend Troy Skaggstestified to the nature and extent of his association with appellant, which began after appellant was incarcerated for his present crimes. Skaggs offered his opinion that appellant’s life had value. (92 RT 19293-19298.) B. General Legal Principles The Eighth Amendmentto the United States Constitution requires that a capital jury not be precluded from “considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstancesof the offense that the defendant proffers as a basis for a sentence less than death.” _ (Lockett v. Ohio (1978) 438 U.S. 586, 604 [57 L. Ed. 2d 973, 98 S. Ct. 2954], fn. & italics omitted.) Nonetheless, the trial court still “‘determines relevancyin thefirst instance andretains discretion to exclude evidence whoseprobative value is substantially outweighed by the probability that its admission will create substantial danger of confusing the issues or misleading the jury.’” (People v. Cain (1995) 10 Cal.Ath 1, 64 [40 Cal. Rptr. 2d 481, 892 P.2d 1224].) (People v. Williams (2006) 40 Cal.4th 287, 320.) >! During a break in the testimony, the prosecutor maintainedthat Woods’s testimony went beyondthe scope of the court’s rulings on the issue of remorse and had openedthe doorto the prosecution’s ability to comment on appellant’s failure to testify to his lack of remorse, if appellant did not testify. (90 RT 18942.) The court disagreed, but advised that the prosecution could attack and argue the sources of the information conceming remorse. (90 RT 18946.) 177 The presence of remorse is relevant at the penalty phase of a capital prosecution. (People v. Marshall (1996) 13 Cal.4th 799, 855.) However, a capital defendant has no federal constitutional right to the admission of evidence lacking in trustworthiness, particularly when the defendant seeks to put his own self-serving statements before the jury without subjecting himself to cross examination. (People v. Jurado (2006) 38 Cal.4th 72, 130.) C. The Trial Court Acted within Its Discretion WhenIt Found Appellant’s Hearsay Expressions of Remorse Lacking in Trustworthiness Appellant specifically challenges the exclusion of the following proffered evidence of remorse: 1) letters from appellant to Pastor Kilthau; 2) testimony from Pastor Kilthau and Reverend Skaggs; and 3) portions of letters appellant wrote to family members. | The court’s rulings on the proffered evidence constituted a proper exercise of discretion. As appellant must concede, his statements— assertions and descriptions of his own feelings and mental state—were hearsay. Asthe trial court properly found, the timing of appellant’s hearsay statements to his family and to the clergy members were madeafter his arrest and concurrent with the formulation of his defense strategy. This was a time when appellant had a compelling motive to minimizehis culpability for the murders and to play on the sympathies of potential defense witnesses. These circumstancesindicated a lack of trustworthiness. In People v. Livaditis, supra, 2 Cal.4th 759, 780, this Court observed: While defendant wasin jail awaiting trial he certainly had a motive to claim remorse. Hissincerity in telling potential _ defense witnesses he was sorry was suspect. The need for cross- examination was thus compelling. The court would have had discretion to find a lack of trustworthinessin the claims of remorse, and thus to exclude the evidence if asked to rule on the question. [Citation.] Since the court was never asked to exercise this discretion, the issue is not properly before us. 178 Oneof the examples appellantcites illustrates this problematic nexus of hearsay statements and defense strategy. In one letter appellant wrote to his wife, he stated: “J was out ofmy mind on drugs and overtaken by my addiction andall the rage inside methat I went berserk.” (AOB 321.) Like appellant’s other self-serving statements, this particular justification for the murders was properly excluded. (See People v. Williams (2006) 40 Cal.4th 287, 318 [capital murder defendant’s hearsay statement that he went ““crazy all of a sudden,’” was suspect because it tended “to disavow that he committed the murder with premeditation”]; see also People v. Edwards (1991) 54 Cal.3d 787, 837-838 [defendant’s journal, written after the murder, was hearsay and notsufficiently reliable to compel admission into evidence].) Further, “[t]he same lack of reliability that makes the statements excludable under state law makes them excludable under the federal Constitution.” (People v. Livaditis, supra, 2 Cal.4th at p. 780.) © Appellant cites this Court’s decision in People v. Bennett (2009) 45 Cal.4th 577, 604, as supportive of his claim. (AOB 294-295.) He is mistaken. The portion of the opinion to which appellant cites did not concern the issue of hearsay expressions of remorse. Instead, the Court addressedthetrial court’s erroneous exclusion of mitigation evidence, which regarded the defendant’s concern for his family and how they were faring. In this case, the court permitted this type of hearsay evidence through the testimony of appellant’s wife (87 RT 18256-18262) and children (92 RT 19357-19361, 19369-19372). 179 D. The Prosecutor Did Not Commit Prejudicial Misconduct When He Argued the Issue of Appellant’s Remorse Appellant contends the prosecutor committed prejudicial misconduct whenhe arguedto the penalty phaseretrial jury that the evidence demonstrated a lack of remorse. (AOB 322-330.) | Appellant’s claim is barred because he failed to interpose | contemporaneous objections, or request curative admonitions, with regard to the 14 examples of purported misconductthat he presents in support of this claim. (People v. Hill, supra, 17 Cal.4th at p. 820.) In any event, there was no prejudicial misconduct. “