PEOPLE v. JOHNSONRespondent’s BriefCal.May 28, 2013Copy SUPREME CourTCOP\ Jn the Supreme Court of the State of Caltfarnta THE PEOPLE OF THE STATE OF CAPITAL CASE CALIFORNIA, Plaintiff and Respondent, Case No. S093235 Vv. JERROLD ELWIN JOHNSON, Defendant and Appellant. Lake County Superior Court Case No. CR4797 The Honorable Robert L. Crone,Jr., Judge RESPONDENT?’SBRIEF KAMALAD. HARRIS Attorney General of California DANE R. GILLETTE Chief Assistant Attorney General RONALDS. MATTHIAS Senior Assistant Attorney General DONNA M. PROVENZANO Deputy Attorney General MASHAA. DABIZA Deputy Attorney General State Bar No. 235343 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-1305 Fax: (415) 703-1234 Email: Masha.Dabiza@doj.ca.gov Attorneysfor Respondent i) [NY Dee Wf Maria ds il ik tid i E i f LoL | TABLE OF CONTENTS Page Introduction...ss eecectecsseseseesseeseesensesssessesesesessecsscssecsssssesasesecsesucsaesssseasets 1 Statement of the Case... ccccccscsssssessesssessessscsseeseesesssecsecseesseeseeseerenesuesevans 1 Statement Of Facts... cc cescsccscessssecssessesseesseeeecesessesseessesseseeesecsecsesensvensausess 3 I. Guilt Phaseoececececssceessesssecseeesecessccssscseessesnscsseecssesssesses 3 A. Early December, 1998 ..0....cccccccsecscssseesseseessseseessseeees 3 B. December 18, 1998 ooo... cccccessssccsscssscesesssrseceessaaees 4 1. Morning: appellant disappears from a MECHANIC JOD... eeeeceeseeseesesseeeecsessesesesseensens 4 2. Afternoon:police attempt to apprehend appellant for a parole Violation...........ccccccees 5 3, Evening: Ellen Salling hosts William Ellis for dinner .......cccccesessssesseeeseeseesecssessesenens 7 C. December 19, 1998 oo... ccccccscccsssssseessesssccssecseseeneees 8 1. Early morning: Salling last seen alive............. 8 2. Late morning and afternoon: William Ellis searches for—and finds—Salling........... 8 D. Crime Scene INVEStiGatiON ........ceccceccsseessecesceerseeseeees 10 E, December20: appellant goes to the casinos with Salling’s POSSESSIONS .........ccccseeseeesesseeeeseesseseeeeeseeees 11 1, Night to early morning: Salling’s Gaughter 0... ceccesesseeseeseeseeseeesesseessessesseeses 11 2. Night to early morning: Starlene Parenteau and appellant...eceeeeeeees 12 F, December 21 o....ececcecccessessseeessessseeseesssesseseseessensreees 14 1. Morning:appellant and Parenteau continue driving around in Salling’s car....... 14 2. Afternoon: appellant is involved in another Chase ........ccecceescessesseeseeseeesseeeserseeens 15 G. Subsequent investigation ..........ccccssccsssssssesestesesseseees 17 TABLE OF CONTENTS (continued) Page 1. Investigation at Salling’s home...............0+ 17 2. Salling’s DOdY .........cssecsssecssteesseesteessteesentens 19 3, Items found by John Jones...eee 20 4. Detectives Stein and Carlisle obtain the evidentiary items from Jones...eee 21 5. Other investigation .........ecceeeeeeeereteteeeneens 22 6. Appellant’s past Job .....ccccccsecessesesteeeeseeeens 23 Il. Pemalty phase ........cccccccsccecesseccsssseecscseecesenseeessseeeseeesessenseesaes 24 A. Evidence in aggravation ........cceeseceseceeeeeeseneeesteeeneens 24 1. Arizona burglary COnVICtION..........:cccccereees 24 2 Pamela Martin Braden assault in 1988.......... 24 3, Jennifer VonSeggern killing...eee 25 4 Margaret Johnson death...eeeeeeeeeees 31 a. Margaret Johnson’s medical history and cause of death ................. 32 b. Margaret Johnson’s credit cards, cell phone, andjewelry... 33 5. Appellant’s admission on a job APPHCAatiON 2... ee eeecceeesceeeseeessceesseeeseteesseeenses 35 6. Evidencerelated to Ellen Salling killing....... 35 B. Evidence in mitigation ..........ccccsccssssecsssessseesteseeeees 38 1. Appellant’s stepfather’s testimony............... 38 2 Appellant’s testimony.........ccccccsceceseessseeeeees 38 3. Addiction testimony ........ccccccccseesteeesteeeeeees 45 4 Other penalty phase testimony.................05 46 ATRUMENE 0... eee ee eeceeceecneeecsneteceaaeeeceeecensaeeessaeseeseaseeessesaeeesessesessesesssnaeeneas 46 I. Thetrial court properly denied appellant’s motion for Change Of VENUE 0.0... eecessssesseessecesseeeesseeessseessssessaseessnersees 46 i I. Il. TABLE OF CONTENTS (continued) Page A. General legal principles ...........ccccccsccsseesseessseetseeeeens 46 B. Factual background........ccccceccsssssseseseesesesessscaeevenes 48 l. Defense expert testiMONny 0.0...cece eeeeeeens 48 2. Prosecution expert testiMONny............:ceeee 50 3. The court’s ruling ......cceeccccsceeeseeseesseeeenseees 53 C. Appellant has failed to preserve the issue for APPOALeeeeeceetecsseeseeeeeseeseeerecsseesesessesaceseesseenses 59 D. Thetrial court did not err in denying appellant’s motion for change of VENUE ........c.cccceceseeseesesseeeeees 60 1. Nature and gravity of the offense .........0..0000. 60 2. Nature and extent of news coverage.............. 60 3, S1Ze Of COMMUNILY........ cece esecseseeseeeeceseees 64 4, Appellant’s status in the community............. 65 5. Victim’s popularity or prominence in the COMMUDILY .0...ceeeseessceessessecsesseessseeseesssseesnees 66 E, Appellant received a fair trial in Lake County ......... 66 Thetrial judge was not required to disqualify himself........ 70 A. Factual background.......cccccceccsesscssseseesecssevssevenees 70 B. Appellant has forfeited his statutory remedy............. 73 C. Appellant did not receive ineffective assistance Of COUNSEL]...ee eeceesesssseesesceseseseeseatsecsesseterenseseenens 74 D. Appellant has failed to show a probability of actual DIAS woo... leeesscsssscceceececerttsseseesecccessersersertettees 77 Substantial evidence supports appellant’s conviction of carjacking charged in count four and murder committed during the commission or attempted commission of carjacking charged in count one.............0.. 80 A. Standard Of review ...........cccesescscsccscecceeeccesssssecsersecacs 81 lit IV. VI. TABLE OF CONTENTS (continued) Page B. Substantial evidence supports appellant CATJACKING CONVICTION .........ccceeeseeeseeeeseeseneeeenseeeteeees 81 1. Substantial evidence supports the inference that appellant harbored an intent to take Salling’s car prior to assaulting and killing her... ceeeeeeeeteeees 82 2. Salling’s car was in her immediate presence for purposes of the carjacking StAtUte eeeeeeeeeneceseeeeeeeteeeessanesseaeetsateesssensas 83 C, Substantial evidence supports the felony-murder conviction predicated on carjacking .........ceeeeeeeee 85 Substantial evidence supports the special circumstance IN COUMNE ONC... eee eceeeeeeteeeeseeceseeseecaseeeeesesseeseseteseenseenseeesees 87 A. Standard of reVICW .....ceecceesecetecseseseeesteeseeseeenseenes 87 B. Substantial evidence supports the carjacking special circumstance finding ...........ccccecseeesseeeseeeens 88 C. Appellant has failed to demonstrate prejudice......... 89 The trial court properly instructed the jury on the use of victim impact evidence during the penalty phase of the trialoeee eeseesseeecseeeseeeseessessseessesessetseessesseeeneeeeaeeees 90 A. Appellant’s claim has been forfeited \..............ee 90 B. General principles of admissibility of victim UMNpPact CVIGENCE ........ceceecsceesseeeseceseeeesseeeeteesenseeesseeees 91 C. The court properly instructed the jury duringthe pemalty phase oo.eceeseesceneeteeseeseeeneeseteeeeeeees 92 The court properly admitted evidence ofthe VonSeggern Killing .......ecececssecesececseeeseeeeeeeeecreesseaeeeseees 96 A. Appellant has waived his claim ..........eeceesceeseeeseeeees 96 1, Appellant did not receive ineffective assistance Of COUNSEL... ceeecceeseeesteeeetteees 99 B. General legal principles for factor (b) evidence..... 102 iv VOI. VUL O F, G, TABLE OF CONTENTS (continued) Page Factual background......eccccceesessessssesssstseseseesesseens 103 Appellant was not “impliedly acquitted” of murdering VonSeggern........cccsccsessesseccseeseceesesens 105 Collateral estoppel and res judicata did not bar introduction of detailed evidence of VonSeggern’s killing ........ceecessecseceseceesseesseesseeees 109 Appellant was not subjected to double jeopardy .... 110 Any error was harmless .0......ccccceescsssessseseessesseeseees 111 Jury instructions on mitigating and aggravating factors in section 190.3 and application of the samedid not violate the Comstitution.......cccccccesccsecsseseeeeseesessenssssteserees 113 A. Appellant has forfeited his claim... 114 B. Section 190.3, subdivision (a) and CALJIC No. 8.85 adequately narrow the death-eligible class..... 114 C. Theinstruction on section 190.3, subdivision (b) and the jurors’ application thereof did not violate appellant’s constitutional rights................. 115 D. The Constitution does not require the jury to make written findings regarding the aggravating FACTOTS .o.ceeeeccccsceeeeseeseeseeseesecseeesseesscsseseccsessessscasestes 116 E. Section 190.3 and implementing instructions do not violate equal protection principles..............0. 117 Section 190.3 and implementing jury instructions are NOt UNCONSTITUTIONAL0. eee eeccsccseeseseeseeeessessecssecceseneeeaseaeees 117 A. Section 190.3 and instructions are not constitutionally defective for failing to assign the state the burden ofproving beyond a reasonable doubt that an aggravating factor exists, that the aggravating factors outweigh the mitigating factors, and that death is the appropriate penalty .........ccescecssscesssccsssteeseeeessessevens 118 TABLE OF CONTENTS (continued) Page B. There is no constitutional requirement that the jury be instructed that it may impose the death penalty only if it is persuaded beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors and death is the appropriate penalty ..0....eee eeeneeeseeeeeeeeesteeeeneeeans 121 C, Thestate is not constitutionally compelled to bear a specified burden of persuasion.............:006 122 D. A jury unanimity instruction on aggravating factors is not constitutionally compelled................ 122 E, The penalty jury need not be instructed on presumption Of life...eeeeeseeeesteteneeneeeeneenes 123 IX. The use of CALJIC No.8.88 did not violate appellant’s constitutional rights...........:-.ccscceesseseseeesteeeseees 124 A. CALJIC No.8.88 provides adequate guidance and is not vague Or AMDIQUOUS..........::ceeseeeseeeteeees 124 B. CALJIC No. 8.88 is not defective for not informing the jurors that the central determination is whether death penalty is the appropriate punishment, not merely an authorized ONC... eeecceseseeeeneeseseeteneeecteeetseeeeeees 125 C. The court was not required to instruct the jury that it was required to vote for life without possibility of parole if mitigation outweighed AQSTAVALION ....cesceeeseescecseseeceeseeceecsnsecseteetecsneteeetreees 126 X. Appellant’s death sentence does not violate international law or the Eighth Amendmentofthe United States Constitution .0......ccceececceeeceseeeeseceeeneeeeneeraes 127 XI. There is no cumulative error...cee eeeesseeeeneeeeeeeeeneeeneees 128 Conclusion .0.....ecceeecceesscceeeeeseesseeseseeeaeeeesaeeeseeceeeeceeaeecsieeesaeeceaeestaeeeeateens 130 Vi TABLE OF AUTHORITIES Page CASES Aetna Life Ins. Co. v. Lavoie (1986) 475 U.S. 813ccccneneeceeceeeseeeeceesseceeeseaeseasiseneeseseeseeeessetneees 79 Apprendi v. New Jersey (2000) 530 ULS. 466...eeeceeseeneeeneceecereneserseeteesereseaesseseeseerseeeeeaeseaeas 119 Arizona v. Fulminante (1991) 499 U.S. 279ecccccsetececcneetececeesereneeseccaesaeeeseesreesetesseseeeneteas 77 Blakely v. Washington (2004) 542 US. 296.ceecesteseeeeeeeereeeecnesaeeeeesteeaeeesseeerseeeaesaesarenees 119 Boyde v. California (1990) 494 U.S. 370.cecccneeeesesteeeesseeeeeceecnesesesecsenssesereeesersesseeaeeasens 95 Brown v. Sanders (2006) 546 US. 212oicceeeeceeteeeetcentesseceeeteeteceseveseesersesesssessseceaseaeeasens 95 Caperton v. A. T. Massey Coal Co. (2009) 556 U.S. 868occ ececeseeeseeseeecneeeeessecseeeseeeeessensensesteseeees 77, 78, 79 Chapmanv. California (1967) 386 U.S. 18.eecceceeceenesereesssesecseenesesenseeteeesenseeeseaeeaessserensecseeatens 95 Cunninghamy. California (2007) 549 U.S. 270 oc ccceeceesceesteessesseceaeeeeesueeseeseaeeeeseesseecesieseseseesatens 119 Harrington v. Richter (2011) US. [131 S.Ct. 770]oeeceeneeeeeeeteeteneees 76, 99, 100, 101 Harris v. Pulley (9th Cir. 1988) 885 F.2d 1354 ooceceeeeeeceecseeeeceeeeeeecseeeseeseeecseeneees 67, 68 In re Albert A. (1996) 47 Cal.App.4th 1004 ooo ccccsecsceeseceecesseeeeeceeesesseeeseeresseeeeseaes 86 In re Begerow (1901) 133 Cal. 349 oieicceceesesceeeeeeseeceesenseeceeneceeensessecaseseesssesstenees 80 Vil In re Travis W. (2003) 107 Cal.App.4th 368 oo... cecccscceccscrereceeeeretneeeseseeecseeesenseeseseeetenes 84 Irvin v. Dowd (1961) 366 U.S. 717 oo. eececcecteceececessneeseeeeeeeseseaeeeaeseneeneseesenecsersaaeagspassim Jackson v. Virginia (1979) 443 U.S. 307 oe eeccccecceseeesceceeseceeeseceseseceereceesseseaneseeseatersetensbarenatens 81 Lutwak v. United States (1952) 344 US. 604 ccccceceeteecteeeseeeceeeeeeeeseeeeeeeeeseeseeneeseeeeseeesiaeeneeed 128 Maine vy. Superior Court (1968) 68 Cal.2d 375 .occceccccsccececececesneeceeeeeeseceseeneeceeseceaeeesreseneeeaeees 53, 54 Murphy v. Florida (1975) 421 U.S. 794 oe ecccceceseeectecsevereveeceeceeaeetevseseeessetseesesesesseenesnees 68, 69 Nebraska Press Assn. v. Stuart (1976) 427 U.S. 539. ececcceeeeeeecetteeetseteetaeeeeeseeveeseveeeusecetanscesesereveersnerseas 67 Niko v. Foreman (2006) 144 Cal.App.4th 344 ooocccccssecseecenceeseeeeeeeessereseeeenteseeeeneee 51 Patton v. Yount (1984) 467 U.S. 1025eececececeteccesssseeeensecteseeeeesetsesenenseeseeseeseteseeeareees 61 Payne v. Tennessee (1991) 501 U.S. 808eeeeteteeeseeeeeneeeeesesaeecsaeessaressinessaresieeteeeseereees 9] People v. Abilez (2007) 41 Cal.4th 472 oo icccsccceecsecceeceteeenetsecessessnessaeseaesseeeeeseeesesereeeeee 86 People v. Adcox (1988) 47 Cal.3d 207 oeceeceseeseccseesesceneeeeeeeerseeseneesareceesieseeseeesersenesenees 64 People vy. Alcala (1992) 4 Cal.4th 742 oicccccccseecetecsecssesseeseeseesseeseeseessecsesseseseesessecseenees 123 People v. Allen (1986) 42 Cal.3d 1222oiccecnseeeeeteteseecsecseveeseeeeeeeseeseceeeasareaeeas 117 People v. Anderson (2001) 25 Cal.4th 543 oecececeeeneeeeneeeeeeeeseeesecseeeereeseasessseeesaseseesneeessas 122 People v. Arias (1996) 13 Cal.4th 92icesceecneceeeseesaecerevaecseceeeesnesesseressenetenees 125 Vill People v. Ashmus (1991) 54 Cal.3d 932 oooceeccccsccescssessssesesecsssecsecsesecsecsseessecsessseseesnssensusiens 92 People v. Bacigalupo (1993) 6 Cal.4th 457 ooo cccccccccesessecsesecseesetessecseeessecsesssessseeaeesetscsessetecsens 115 People v. Bacon (2010) 50 Cal.4th 1082 oiccccecesecesecsccsesssesscsscssssetesssesssesecsenss 121, 123 People v. Balderas (1985) 41 Cal.3d 144occeeceecesessecsssessessesscssestesesecsesescatsevseesecsusevins 64 People v. Barnett (1998) 17 Cal.4th 1044 ooeccceccceceseseseesteesesesessesesersesesseseessteseeeesenes 95 People v. Barragan (2004) 32 Cal.4th 236 oc cccccccecsssssssessesecsesecseescsecsessecssssesesscsscscsseetevaseees 109 People v. Beames (2007) 40 Cal.4th 907 oo..eccccccscssssessessssesseeescecsessesecsscstsscsessssecsetesenevees 115 People v. Beeler (1995) 9 Cal4th 953 ooo cccccsesesscssescssesscsecscseceecssescsessesssesssscsessssaseavenenes 129 People v. Belcher (1974) 11 Cal.3d 91 ooeecsecsseeesessesseeecssessesesscseesecsseecsessecsnessessseseaseas 96 People v. Benson (1990) 52 Cal.3d 754 oo icccccccscesessescsseesssecsecsecssseesesessseesessessesessecnsereasees 95 People v. Blacksher (2011) 52 Cal.4th 769 oeccccccecssesecssecsscscceccsscsssseesecsscssesecesscsscsrevaneages 128 People v. Bloom (1989) 48 Cal.3d 1194 oicccceccsesscssccssececseccsecssesessscsecsssssecsussesseserevsveass 82 People v. Bonin (1988) 46 Cal.3d 659 ooo ccceesessesenseeseteeseraccseteeseessesesesseseesenees 47, 61, 62 People v. Box (2000) 23 Cal.4th 1153icccccecceessessesceeesecsesecsessecessecssssesstscesessesenes 122 People v. Boyette (2002) 29 Cal.4th 381 oc ccceccecsseeseseessenscseeesseseuecsesssstesesesasseasees 117, 126 People v. Bradford (1997) 15 Cal.4th 1229oecccceeessesenecsesseeeeseesecsseaseeseesenseees 105, 110 ix People v. Bramit (2009) 46 Cal.4th 1220oeeeceeneenecneeeeceereseeeeseereneraeseenees 114, 120 People v. Brown (1988) 46 Cal.3d 432 oooeccecceecseceeceeeeeeeeseseeeeecseeeseseesesentseteeseneees 111 People v. Brown (1993) 6 Cal.4th 322 oeeececceseeseeescsessecseesceeeeeesecescnsssesssesseesesseeeeesetees 77 People v. Brown (2004) 33 Cal.4th 382 oie ccecccseesececsseneeesceessecneeseccsessecsessesneeeeesseegs 116, 117 People y. Burgener (2003) 29 Cal4th 833 woo icsccseeseeecseeenecteeeeesereeeseeceeeeeeeseeseeesseees 115, 122 People v. Burney (2009) 47 Cal4th 203 oo. eeceecceeecsesseecnessecserseeseveeseseesssseeessesessesaes 121, 123 People v. Cardenas (1982) 31 Cal.3d 897ceeree eeicssiesiennersseeneeesineaneseienseneeaee 129 People v. Carey (2007) 41 Cal.4th 109 ooeccceseccsecceesecsneeneeseeesseceesneeseesseeaes 93, 102 People v. Carpenter (1997) 15 Cal.4th 312 icccicccsesseesecsecceeeseeenseeeecseseecseseeasstesseens 114, 122 People v. Carrington (2009) 47 Cal.4th 145 occecccseccecsecsecseeseeeseseesesrsecesssessecsesesesesatens 121 People v. Chatman (2006) 38 Cal.4th 344 ooo ccccccssecsscseseseeeesseeeccseecssesecssenseseesones 80, 125 People v. Clark (2011) 52 Cal4th 856iiccccccceeseeseeseeneeseesessesseeesesecseseascsecsecsessseesaeeas 103 People v. Coffman (2004) 34 Cal4th doocecceccseseccsscseseeseeeessetsensesssesesenesessseeteseeeaenes 66 People v. Coleman (1989) 48 Cal.3d 112 ceeceseeseteceseeeeeesenecseseaesescecsessasesesesseessees 63, 65 People v. Coleman (2007) 146 CalApp.4th 1363 ooccecceseccectecesseerssenteessseseseesenseeesesseess 85 People v. Collins (2010) 49 Cal.4th 175 cccccccceccesceseccseserecsesesecsesaesssecssesseseseseseessesseeenss 103 People v. Cooper (1991) 53 Cal.3d 771 occ eeccccesecssssesecssecscsseseecscsesscsescsssssesecsscsnsesesenees 66, 70 People v. Cowan (2010) 50 Cal.4th 401eccccsccecsecsesstsesscesesressscscsseaseneesees 73,77, 78 People v. Cummings (1993) 4 Cal.4th 1233 ecceccesescssssesscseessecsesececsesvsssessssesessecssssssscesecnsasees 47 People v. Cunningham (2001) 25 Cal.4th 926 ooo ccccccsccsssssscescsscsssecsesscsssssescscsusseesseusseatees 103, 119 People v. D’Arcy (2010) 48 Cal.4th 257 oc ccccccccessecsscsscssesecssesecsesevsecsscsessessecsevsetens 116, 123 People v. Daniels (1991) 52 Cal.3d 815 oeecccscceccecseescesesesecsecssseeesseaseacscssessesscsesesees 66, 122 People v. Danielson (1992) 3 Cal.4th 691icecceseeeeseestscsesesecsesesesecsesscevseesessesteavsessvenes 108 People v. Davis (2009) 46 Cal.4th 539 oieccccnseseesenecsesessesssscsecseestecsessessssersanaes 62, 66 People y. Dement (2011) 53 Cal4thdeeecceeteneeecsesesesesesesescsesecsessscsssecssseesssscsesreeses 86 People v. Demetrulias (2006) 39 Cal.4th onccccecesssesssseeseseescsecscssecssesecsssecsscssescsenseeeeceens 114 People v. Dennis (1998) 17 Cal.4th 468oecceeesesseteseeeseseseeeeseessseeseseess 47,122, 127 People v. Dominguez (1995) 38 CalApp.4th 410 occ cccccsccsssecsssecssescscssesecssesersessecnevseneseecevens 81 People v. Dominguez (2006) 39 Cal.4th 114d ocecccecseeeneesesssesseserscssssesssscstsessevsesservees 88 People v. Douglas (1990) 50 Cal.3d 468 oocececeeeesessessteetssseeeecsssecsescsecstersesssseneegs 66, 102 People v. Duncan (1991) 53 Cal.3d 955 occceeccecteneeneeseesseseesessseseseeescsessscsesscseseatesesssees 126 People v. Edwards (1991) 54 Cab.3d 787 occcccececceseseesecsesenecsesssssseessesevessessessesstsesscnsvsessents 92 X1 People v. Elliot (2005) 37 Cal.4th 453occeecsscsseeseecerersecsescseessessesesesesecseesneees 116, 124 People v. Famalaro (2011) 52 Cal.4th boeseseeceeceeseseceeetseeessssessesssseesessseseeerenaeespassim People v. Farley (2009) 46 Cal.4th 1053 oo. ceeeceeescsseneeeseseesssssessesssceseessessesseeegs 60, 61, 64 People v. Fauber (1992) 2 Cal4th 792 ooocccccccseseeceeeceneceeeeneseeeeeneeseeseeesesaeseetserereserseneeseaes 117 People v. Fields (1996) 13 Cal.4th 289occesceeeeeeereeeserreriscenseeseesscseseesseessseereeees 106 - People v. Freeman (2010) 47 Cal.4th 993 ooo. ceeeeeeceeeceeeeeeeneseeessssasnsessesseeaes 73, 74, 77, 78 People v. Frierson (1979) 25 Cal.3d 142 .cccccccscceccesecneeneeseetneeeeeneesneesssesessesseessaeteeseeneenses 119 People v. Gallego (1990) 52 Cal.3d 115 occccceececcceeeeecneeeeeneeneeeetessesseenseseeeseeiseseeneessees 65 People v. Garceau (1993) 6 Cal4th 140oeeceseeseesereeeneseseenesesesnsonneesineees 106, 110, 111 People v. Gomez (2011) 192 CalApp.4th 609 woecseseecneseneeeeetnesseeeseeeaeeseeens 82, 83, 86 People v. Gonzales (2011) 51 Cal.4th 894oeeeeeeereerneeeserteeeieeseaseeeeaes 122, 123, 128 People v. Green (1980) 27 Cal.3d 1 o.cee ec ceceeseeseeccecseeeceecseesneesteesseeeesecseeenesissnseesnerereaes 88, 89 People v. Guerra (2006) 37 Cal.4th 1067 oo... ce cceccccecsseteneecneeseceneceeseeestesserseeserseateaeeerenens 73 People v. Gurule (2002) 28 Cal.4th 557 oc icccccccccscceeccesseeeeneeceeeesseeesaeeeeeesnesseeseseeeneeereaeees 92 People v. Harris (1981) 28 Cal.3d 935 oo ecscceseeeecenecececeneesseeceseaeeeeesessecnseneesseeseness 65, 70 People v. Harris (2005) 37 Cal.4th 310 occ cececcecsccenecceceeesseeceareeseeeessessseseneseeeeeneee 115, 125 xii People v. Hart (1999) 20 Cal.4th 546 oo. cccecesecsecseeneceneceeceaecseceecseeesaeeceesaesteeseeeeeeereas 59 People v. Hartsch (2010) 49 Cal.4th 472 oo. ceccccccceececsccsceseeseceeecaeeeeseeereseeseeesaeeeeeeneeeates 93,115 People v. Harvey (1979) 25 Cal.3d 754 oo. .ececccescecceseeeeceecseeeecseeeeeeseceeseeeenaesneeeeneeeenaeeas 106, 107 People v. Hawthorne (1992) 4 Cal.4th 43 ooo ccecccesneseecteeseetseeseeseseeseeeteeeeeseeeeees 92, 93, 122 People v. Hawthorne (2009) 46 Cal4th 67 ooo ceecccsceeeeecenseneceneeseeeessevseneesieeeseeessessesaeeeseaeaes 128 People v. Hayes (1990) 52 Cal.3d 577 ooo. ccccscceseeteeteeeeneseceesseeeanetseeeseetenaeseneeseeesaas 84, 85 People v. Hayes (1999) 21 Cal4th 1201oeeeeesceesrecseceecsseseeeseesneeecseetsessreeeeeses 66, 70 People v. Hillhouse (2002) 27 Cal.4th 409 occcceseneeeceeceeeseeeeeesseeeeseeeesesseeaenesesseees 90, 128 People v. Hinton (2006) 37 Cal.4th 839 ooo cccecceseseeceesesereeesecesessereseeesseeeees 74, 100, 117 People v. Holt (1997) 15 Cal.4th 619 ooccceeeesecceeeseecseesesseessaeeecsessesesatessssenseaeees 122 People v. Hoyos (2007) 41 Cal.4th 872 oo ccceseeseeseseeseetecseseesseeesenesees 114, 117, 118, 128 People v. Hughes (2002) 27 Cal.4th 287 ooo ccccccsscsessesssesessecseesesscseesssessesesssessesiees 87, 115, 126 People v. Jackson (2009) 45 Cal.4th 662 ooo. iccceccecccsseeseeesesetecsesesersecssseesssessssesssetessecees 123 People v. Jenkins (1975) 13 Cal.3d 749 ooo ccceccecessesessssseeeeenecsesseseesssecescsecsesesssessessesscaseasnees 76 People v. Jenkins (2000) 22 Cal.4th 900 ooo. cccceeseceteeeeeensssecssesesetecesesecsseesseesesens 47, 67, 87 People vy. Jennings (1991) 53 Cal.3d 334 oo eccccseeseesesesenecseeseeecsecseessseesecseeseesecsesscsesaneass 63, 64 Xill People v. Jennings (2010) 50 Cal.4th 616 oc cececeecesecereeneerieeeeetscenessesseesessssesserereensestaees 121 People vy. Johnson (1992) 3 Cal.4th 1183 occceccsseenecneenecersneessecseseeessnessesesesesceseseeesneeses 108 People v. Johnson (1993) 6 Cal.4th Docceccescsecceecseeeeneeseeeeseeeseeeeeneerseeeeesseesensseeene 90, 91 People v. Jones (1998) 17 Cal.4th 279 ooo ecccecceeseeneeereseceeneesneeenecseasssessessaeenes 107, 110, 111 People v. Jones (2003) 29 Cal.4th 1229 ooo eeceeeseeetsteeeesaseeseeesenseensenesssereeseesenespassim People v. Jurado (2006) 38 Cal.4th 72 ooo cecccscecesserereseeseeeeceeesesseeseetesseseessetertertecias 92, 103 People v. Kelly (1992) 1 Cal.4th 495 oocecccsescneesecsestecsessectsessestetsssatentesessesseeesteesses LOS People v. Kelly (2007) 42 Cal.4th 763 ooececnsecereeneeeeecenerseesteesseceeecesensenecsecneeetise 90 People v. Kipp (1998) 18 Cal.4th 349occreeceeeesseeeseesensteserecneeeseesneeneees 115 People v. Koontz (2002) 27 Cal.4th 1041 occecccsesseneesessecsecseessesecsesessecsecnseeeseeeatenees 105 People v. Kronemyer (1987) 189 Cal.App.3d 314ceceesecnetecsecseenecsecsaetsstseeaseresseenaes 129 People v. Lee (2011) 51 Cal.4th 620oecceseescecsectecteeeceessessceeessecaeeeseseesrsneeterseasens 115 People v. Leonard (2007) 40 Cal.4th 1370 vcccsccccssssssssesssssesessosssesusessssessesessesseesssssese 60, 118 People v. Lewis & Oliver (2006) 39 Cal.4th 970 oo. cccccccccseesesseesecetsensecesessesseseseenetes 73, 96, 105, 118 People v. Lewis (2001) 25 Cal.4th 610 oo. cccecescceeseeseeeeecesesseeeseeesesereeneesareseseeeesneees 115 People v. Lewis (2001) 26 Cal.4th 334oeecccscecceereceeecseeseeceneseeeseaesereseecaeeneesaestarenaeees 116 XIV People v. Lewis (2008) 43 Cal.4th 415 oo. ecccccsceseesscenseesesssesseeseesaeeeseeseees 61, 62, 120, 128 People v. Lopez (2003) 31 Cal.4th 105] oecceeaeseesetsesecsseeseeecneessesssseesteeseeseeeeseees 82, 84 People v. Marshall (1990) 50 Cal.3d 907 oo esecsecseeeeteceesseeesecseeseaseessseeecsenestenseneesenes 66, 128 People v. Marshall (1997) 15 Cal.4th Loececceeeceenesetecseesseeessesecseeessssessesessessessesseessenees 86 People v. Massie (1998) 19 Cal.4th 550cecceccsecseceneesenecnesesseneeseseeseseesseeesteees 47, 60, 67 People v. Mattson (1990) 50 Cal.3d 826 oeccccecessseseesseeseeseesenessessenessnsesessesesaseecseeseens 102 People v. Maury (2003) 30 Cal.4th 342 occccccessessesesseesescecsecsecsesecsesssesesecsesecsecetseseeeeses76 People vy. McKinnon (2011) 52 Cal.4th 610occeccceseesensensstecseesssessesessenensestens 114, 125, 128 People v. Medina (1995) 11 Cal.4th 694icecceesecsesectecseneeeessensesessseseseesssseeessenecsesenss 126 People v. Medina (1995) 39 Cal.App.4th 643 oo ecccccssscssseesesseescseeeseetscsesecsressens 83, 84, 85 People v. Mendoza (2007) 42 Cal.4th 686 oo. ieccecsecsessessesstecseecsesesseseesvscnessassessstscerees 122 People v. Mickey (1991) 54 Cal.3d 612 oo cccceccccssecseesessesecssssesecsesscsscsessacscsecsssessseaveneres 88, 95 People v. Mills (2010) 48 Cal.4th 158occcseenseseetecssseecssesesesssseessssessevseseseceeveeseees 127 People v. Miranda (1987) 44 Cal.3d 57 oo cececccssssseseessssescsessesessesecscssseecsessessesssesseseacsenesesaees 128 People v. Mitcham (1992) 1 Cal.4th 1027 occceeceesseseetecesseesesseeesssesesseeesessesscseesenenes 74, 99 People y. Monterroso (2004) 34 Cal.4th 743 ooo cccccccsecssccsscssecssccsseeseesrsessestevaes 105, 106, 111 XV People v. Moon (2005) 37 Cal.4th 1 oo. ceccccsecsesseeseeseesecseeseceeeneeeneensens 115, 124, 126, 127 People v. Moore (2011) 51 Cal.4th 1104occceceeceseeeeteeeeeseeesssseeeseesnesressesseeens 92 People v. Morrison (2004) 34 Cal.4th 698otecsesneceeeeseneseeeeectessaseeessesseesreesens 117, 120 People v. Mungia (2008) 44 Cal.4th 1101oeeseeeeeceee es eeeseeeeeseeeraesneeeresseseeseseenees 127 People v. Musselwhite (1998) 17 Cal.4th 1216 oo. cceceencceseesseeeeeeeeseeteneeseeeesesnesesneeseseesersesseee 86 People v. Neely (1999) 70 Cal.App.4th 767 o....cccccccccsscessestesneeteeeneesneeeeeeenrcesaseeeseseeeesaeee 96 People v. Nelson (2011) 51 Cal.4th 198 ooeeeeeteceeeenereesteeseesseseneeree 88, 116, 127 People v. Ochoa (1993) 6 Cal4th 1199 ooo cceescssecteesecteesecnecseessecneesseseessecesnesrseeesaeens 81 People v. Ochoa (1998) 19 Cal.4th 353 ooo ccceccscccccsesseecereseeeseesseeeeeceaeeseceeeeeaeenarenessanerpeees 122 People v. Ochoa (2001) 26 Cal.4th 398 oooceceseeeeteesscereeseseneeeneesneeeneessseneesessneerenies 93 People v. Osband (1996) 13 Cal.4th 622 oo cccicccceeceseeesseceeeeseeseerseesenessaeesseeessersrseseeeneeease 81 People v. Parson (2008) 44 Cal.4th 332 ooo cccsssscccnecstecceeceeerseeensesseetenessseseseeseesenereaeeeeees 125 People v. Perry (2006) 38 Cal.4th 302 ooo eccccccsseeneeeneecsecseesecseeeeecserceneeseaeesaeseaees 124, 127 People v. Price (1991) 1 Cal4th 324oesceecenesesenscsesseeseesneesseessseenesesseaseaee 92, 103 People v. Pride (1992) 3 Cal.4th 195 ooo ccccccccsceneeeeeneccneceeesceceesneeseaeeceaeesseeeseeesneseates 67 People v. Prieto (2003) 30 Cal.4th 226 oo... ccccceeccesneeeeeeessceeeseeneeeceeeesneeteneesenesenaeeesaeenenes 93 XV People v. Prince (2007) 40 Cal.4th 1179 icccccccsecseseeseeseeseesseeesseeseeesessseensesseeatens 61, 62, 66 People v. Proctor (1992) 4 Cal.4th 499 ooo ecceececssscsceseeseessessesceeeseceeceessesesesssesseressaserteses 47 People v. Raley (1992) 2 Cal.4th 870 ooo ccccccsecscnesesesesscseesscssssessessessesasssscsecesceeeneseseessenes 88 People v. Ramirez (2006) 39 Cal4th 398 ooo cescetsenseescnecnessecseeeseessessecesseesseseeeeeseesteneenta 60 People v. Robinson (2005) 37 Cal4th 592 ooo. ei eccccceseesseseesseesesesscseensessesesssesesesaesstecssessssssases 91 People v. Rodrigues (1994) 8 Cal.4th 1060 ooo. cccseccceeesetsesscsseesesessesseeseeseens 91, 106, 107, 108 People v. Rogers (2006) 39 Cal4th 826 ooo. ececccssesecscsecsesecseescsessseeseeesseeseesesseessecsssesesenss 90 People v. Rogers (2009) 46 Cal.4th 1136ccceeeecesessesssecseseecseseessesetscsesscseeesnes 125, 127 People v. Rundle (2008) 43 Cal.4th 76cc cccecccecesesessecsesecsesecseescsecsesecsseessecseesesscsrcseensveneeevaes 73 People vy. Salcido (2008) 44 Cal.4th 93ieecccsessssssesssesecscecsesssesscecseessesesscasevsseseasnentes 114 People v. Samayoa (1997) 15 Cal4th 795 ooo cecccceecscsessesessseecseescsesesscssssesessescssessseatseevavaneaes 123 People v. Sanders (1995) 11 Cal.4th 475 oo cccccceeecseesesesessssecsecsssecstsssseeseesneesies 48, 70, 121 People v. Scott (1997) 15 Cal.4th 1188cece ccccscsessesesesscsesssecsssesscsssesscsessvesssessvesenveseees 101 People v. Smith (2005) 35 Cal4th 334 occ ccccccccsessescesssecscsssseessssssesecsecsssssesaevseseassesensers 117 People v. Snow (2003) 30 Cal4th 43 ooo ecccccccscccssssscsesecsecscsecsccsssessssecseceeseessevssersasersers 122 People v. Stanley (1995) 10 Cal.4th 764 ooo. ccccceeseeeessseesssseecseecseceseassesseseesseeetsesseenay 51, 110 XVil People v. Stanley (2006) 39 Cal4th 913 ooo cccceccceccseceeeceneceeeeneeesneseseeseeeseeesnaeeeaertaaessnaeees 121 People v. Stitely (2005) 35 Cal.4th 514 occcccscecsceteecereveeeeneccerseecceesesseseseeeveeseseaeventens 105 People v. Tate (2010) 49 Cal.4th 635 ooo eseseesssesecesecnscnecneseeesaeseecneeeneeeeenesseerseeeeneees 92 People v. Taylor (1990) 52 Cal.3d 719 ooo ceeccseeecseeecceeeenereceeeseeecteersaeesaeesaeseneeseeessaates 123 People v. Thomas (2011) 51 Cal.4th 449oereneeneseneteecnerneenneeisenesieesrsntecnes 103 People v. Thomas (2011) 52 Cal.4th 336 oo. ecccccceeeeeneceeeeceneesneeecaeecnseecesearesaeseeeeneeeeeaaes 115 People v. Thompson (2010) 49 Cal.4th 79 oocecescecsesseeenecnecenesssecseeseeeeeeseressereeeaecneseeeseneees 102 People v. Thornton (2007) 41 Cal.4th 391oeceeceneceeceeceeceeseeseseeeseseenneeaesseseneessaes 88 People v. Turner (1990) 50 Cal.3d 668 oo. cceccceccsneeseseeeeeeseeceeeceaseeseseeceaeseeeseseesesenteeensaes 86 People v. Valencia (2008) 43 Cal.4th 268 oo. cececcecscceseesceeeeseeceeseseeaesseesseseessnsseresseesss 106, 124 People v. Visciotti (1992) 2 Cal.4th 1eeecsesseesseesecssecsecesececseeecseseeseecseesarensens 110, 111 People v. Wader (1993) 5 Cal.4th 610 oo ecccccseeeeesseeseesecseeseceessessssesseeeeesesateas 110, 126 People v. Wallace (2004) 33 Cal4th 738 occ eecccsesetssessecseseseeecesecseecneeseescessetesseseresseesensees 110 People v. Wallace (2008) 44 Cal4th 1032 oo... eeeececcececessecesseteceresseeeseessecnsssseeseeenee 51, 103, 110 People v. Watson (2008) 43 Cal.4th 652 ooo cececeeececeeeeeeeeecsereeseeeeseeeeeieseuaeeneeseeaeeene 126 People v. Webb (1993) 6 Cal.4th 494oeeececceceeeneceecneeeeeeseenesneteecneseeseneeeesneseaeesaeees 47 XVill People v. Welch (1999) 20 Cal4th 70]cece cccceseeeececneenereeeeteceseerssecseesseeseseessessessees 60, 122 People v. Whisenhunt (2008) 44 Cal.4th 174 ooeeccseeseeeeenersenesesecaeesesesereaseatesenseatseseeeaees 115 People v. Williams (1997) 16 Cal4th 635 oseccescccsesseeceeseeecsectecesecesseesseseeseeesessesstesseseneeas 59 People v. Wrest (1992) 3 Cal.4th 1088 oo. cccccccsescesscsscseessseceressesecsscssessecsesssecsseesseeaeenes 129 People v. Young (2005) 34 Cal4th 1149 ooceeseeneeteeeeeneenensessees vaseeaeeeneceeteneeaeenaeeees 86 Peoplev. Zamudio (2008) 43 Cal4th 327 oo. eccecsccesesecseeseeseeseeesseeeeeeserseeeessesesssssesseseteseesees 94 Pope v. Hlinois (1987) 481 U.S. 497ecceceeeecseeteesessecseeeseeseseeessesesesecsesaseaessessessesseeaees 95 Price v, Superior Court (2001) 25 Cal.4th 1046 occccccescecscsessecessecsensseesssseesessesessecsesseeaeens 108 Rideau v. Louisiana (1963) 373 U.S. 726... cccccscccssccessetesscssessscsecesssscasccssscesevessesesessacressenaaeeuss 67 Ring v. Arizona (2002) 536 US. S84. cecscscctecsecesesessseeseseesessessasseesseaeesseeetcaesecseceee 119, 120 Rose v. Clark (1986) 478 U.S. S70. eecccccccccsecccseccesscccssesssssevssscesseceeesseeeesetseseresseteterens 95 Skilling v. United States (2010) US. [130 S.Ct. 2896]ceeecccesecseersecneersetsetecsiens 60 Stone v. Superior Court (1982) 31 Cal.3d 503 occcccccccecseesseseesesesscsecssesseseccsessseseecsssesesessecsesanes 106 Strickland v. Washington (1984) 466 U.S. 668.0. ccecseessecseeseetascseesssesesstessessnenaes 74, 75, 99, 101 Tumey v. State ofOhio (1927) 273 U.S. S10eeeccccseeneeenecneeeseeceeeeeeeessseeateneesseseeseessateesees 78, 79 United States v. Booker (2005) 543 US. 220... ecccccccccccccccsssccecenssecssseeesesscscecsecutreeacecsteeasentaates 119 X1X United States v. McVeigh (10th Cir. 1998) 153 F.3d 1166 occcee esse reneereressesecsierseesseerseseaes 67 Verdin v. Superior Court (2008) 43 Cal.4th 1096 oo...cee ecccceeesceeeneeceeeeeneeeeeeeraeseseeessetsesssensseess 114 STATUTES Code of Civil Procedure § 170.1, subd. (a)(6)(A)(1IL) oo. eecccceeeeeseeeeeeseeeeeeaeeeceseneseeeeeeensessenaeenerates 73 § 170.3, SUbd. (A)(1) ...ecceceecesceeseeeneeceeeeseeeceseeeeeeeneesneeseeneeensesesieseasneeseeaseeees 78 § 170.3, subd. (d) ..... ce eeeeceeeeeeteeteeeeeetreseeees (1961) 366 U.S.717, 723. * Appellant appearsto raise a novelclaim forthe first timein this Court that Professor Ebbesen was biased by claiming he was“[t]horoughly (continued...) 50 RT 440.) Ebbesen reviewedthe data and calculations provided by Dr. Schoenthaler. (14 RT 450-453.) Ebbesen believed the survey design was problematic, Schoenthaler’s analysis was inadequate and incomplete, and Schoenthaler’s conclusions were not supported by the data. (14 RT 454- 455; 2 CT 302-332.) Ebbesen’s specific concerns with the survey design includedfirst, that Schoenthaler did not include any false questionsto test the veracity ofthe subjects. This was an important consideration because Ebbesen had previously found that as muchas 20 percentofparticipants will say yes to (...continued) pro-prosecution,” having “regularly and repeatedly tesified as a prosecution witness opposing change of venue motionsin other cases.” (AOB 91, see also fn. 12.) Appellant had not raised such a claim below and it must be dismissedas forfeited. - Furthermore, to properly raise an issue for appellate review, appellant mustclearly articulate a claim and support it with argument, legal authority, and citations to the record. (Niko v. Foreman (2006) 144 Cal.App.4th 344, 367-368.) If an appellantfails to raise an issue, or fails to adequately support an issue raised, the appellate court may deem the issue forfeited. (People v. Stanley (1995) 10 Cal.4th 764, 793.) Appellant fails to provide any argument, legal authority, or citations to the record, supporting his apparent claim that the prosecution expert was generally “pro-prosecution”or biased in any way. Therefore, his argument has been forfeited on appeal. Finally, it must be rejected on the merits. Thetrial trial court made a credibility determination as to the experts by weighing their testimony and findings based on the evidence before it. The determination of whether a witness qualifies as an expert under Evidence Codesection 720, subdivision (a), comes withinthetrial court's discretion. (People v. Wallace (2008) 44 Cal.4th 1032, 1062-1063.) Appellant has not cited any evidence from the record that Ebbesen wasin fact biased in favor of the prosecutionor that thetrial court abusedits discretion to rely on his objectivity and expertise. Appellant’s attempt to impugn Ebbesen’s credibility is forfeited and unsupported by any evidencein the record. 51 false items. (14 RT 461.) Second, Ebbesenfaulted the limited nature of the response optionsin that subjects were not permitted to respondin detail sufficient to illustrate the extent of their knowledge about the question’s subject matter. (15A RT 468-472.) Ebbesen suggested that a more accurate measureofthe participants’ knowledge aboutthe facts of the case could have been obtained with open ended recall questions. (15A RT 472- 474.) Ebbesen also criticized the survey for not attempting to determine the extent of prejudgment and whether subjects were open to changingtheir opinion. (15A RT 475-476.) Ebbesen faulted the survey for not asking any questions aboutthe participants’ personal involvementto test the embeddednessof the information in the community. (15A RT 476-477.) Ebbesenbelieved the order of the questions made the answerspotentially unreliable. (15A RT 478-483.) He concludedthat the survey did not adequately assess general death penalty opinion andthat its assessment of guilt prejudgment wasless than ideal as well. (15A RT 484-485.) Ebbesen opined that the survey did not appropriately measure demographic information. (15A RT 488-490.) He opined that the record keeping was inadequate and madeit impossible to double-check the survey. (15A RT 492.) Ebbesen notedthat at least two of the survey participants would not have been eligible to serve on ajury. (15A RT 498.) Finally, Ebbesen noted that not all questions were askedof all participants, thus confusing the results further. (ISA RT 500-503.) Ebbesentestified that Schoenthaler’s analysis was inadequate. Schoenthaler failed to properly measure and analyze general attitudes and how they affected prejudgment. (15A RT 493.) He also did not measure the depth of participants’ knowledge. Furthermore,participants’ general attitudes strongly affected their opinions expressed in the survey without regard to any informationrelated to this particular case, including appellant’s name. (15A RT 504-512.) 52 Ebbesen did not believe that the survey data supported Schoenthaler’s conclusions. (15A RT 487.) Conversely, Ebbesen analyzed the data and concludedthat at least 91 of 112 respondents, or 81 percentofthe entire sample, could be said to have open minds. (15A RT 513-514.) He also determined that only 10 people out of the entire sample recognizedall three of the following: the case description, the victim’s name, and appellant’s name. (15A RT 514.) In Ebbesen’s analysis, only 7 out of 112 individuals might have formed an opinion about appellant as an individual thinking that he was guilty before taking the survey. (15A RT 518.) Ebbesen outlined waysof ferreting out prejudiced potential jurors without asking leading questions. (15A RT 529-548.) Hetestified that an adequate voir dire will result in a panel without any individuals on the jury panel whowill be a problem. (15A RT 548.) With regard to the effects of pretrial publicity, Ebbesen read the surveyresults to suggest that “the court would have no problem selecting a fair and impartial jury from voir dire of potential jurors in Lake County.” (2 CT 331.) The prosecutor subsequently argued that voir dire would be sufficient to filter out potential jurors who have prejudged any relevant aspect of the © case andto obtain a fair jury panel. (15B RT 608-610.) 3. The Court’s Ruling After the hearing, the court first pointed out that the survey standard presented by appellant differed significantly from the relevantlegal standard. (16 RT 630 [“statistical possibility” versus “reasonable likelihood”that a fair and impartial trial can not be had in the venue].) The court noted that it considered all evidence presented and factors set out in Maine v. Superior Court (1968) 68 Cal.2d 375, and concludedthat appellant had failed to meet his burden of showing a reasonable likelihood that a fair and impartial trial cannot be had in Lake county. The court denied the motion for change of venue, but notedthat “[t]he denialis 53 without prejudice to renew the motion during the jury selection, should actual experience in trying to select a jury so justify.” (16 RT 630.) Using Maine, supra, as a guide, the court set out its findings in detail. First, the court considered the gravity and nature of the offense. The court found the gravity of the offense to be “as weighty as any criminal case can be, because the possible penalty here is one of death,” and therefore weighed “more heavily towards the granting of a change of venue.” However, the court recognized the case law explaining “that if the analysis were to end then at that point then every capital case would... necessitate a change of venue,” and that the gravity of the offense “needs to be considered in lightof all the other factors.” (16 RT 630-631.) The court also considered the nature of the offense, as follows: Here the nature ofthe case is one that involves alleged murder of another individual, and obviously that type of case, it’s a serious case. It’s significant. But on the other hand, the death that’s involved here, when looked and ranked against other types of murder cases—it’s a single death. The court, in looking at the exhibits that were attached involving the newspaperarticles that were submitted as an exhibit, couldn’t find information in it that sensationalized the murderitself beyond that that would be given to any other such offense. For instance, it was not multiple victims, it was not torture, it wasn’t—well anyway,herein the pressit’s not—you’ve seen some of these others: [mJutilation, sexual events, connected with the offense. So in looking at the nature of the case, certainly it’s serious, it’s murder, and every murderis serious, but there are other types of murders that one sees in the cases and onesees in court which have a—would seem to have a greater impact on people. (16 RT 631-632.) 54 Next, the court considered the size of the community. It noted that the county had a population of 56,000, which was small comparedto other counties but determinedthat it must consider that there are other small counties in California, with as few as 10,000 residents. The court noted that Lake county wasnot the smallest county. (16 RT 632-633.) The court made a further distinction: And I think that hasa little bit of significance here too, because some counties, the population, maybe over in Colusa County, is centered around the county seat, of 15 thousand people, or 12 thousand people. Here it was indicated in the evidence that was submitted, the 56 thousand people in this county are somewhat spread out, and it indicated in the evidence there are various population centers, Lakeport, where weare, being one population center, being about 46 hundred, and from the location where the events occurred, as far as where the victim in this case lived, overin the Lucerne/KonoTayeearea, as the court understandsit, from what waspresented, that is probably anywhere from 12 to 14 miles from Lakeport. And the other population center’s around 10 or 12 thousand, downin Clearlake, andit’s about the same distance from the Lucerne Kono Tayeearea to Clearlake. And then another population center that wasreferredto is in Kelseyville, whichis a straight shot across the lake, basically, from Lucerne, but if you have to driveit, that’s probably, you know, 15 miles, anyway. And then another large population center that wasn’t mentioned is down in Middletown, Hidden Valley area, and that’s probably, from Lucerne, oh, probably 30 miles, or 25 miles, anyway. Andthen there is the Cobb Mountain area too, whichis behind Kelseyville. So here the 56 thousand people that are in the county aren’t just centered in onearea, and certainly they aren’t centered over in Lucerne, on the—what’s known as the North Shore. 55 Andthe North Shore consists of sort of a ribbon of small communities that run along the north shore of the Lake, the Nice, Lucerne/Kono Tayee area, Glenhaven and Clearlake Oaks. (16 RT 633-634.) The court distinguished cases cited by the defense involving smaller counties: There was [Corona], [Fane], [Frasier], and really when you look at those cases, there’s some very significant facts that are there in those cases. I mean—and someofthoseare the most notoriouscases, quite frankly, in the State of California that have ever beentried. Juan Corona, 25 murders, Frasier, down in Santa Cruz, a family was killed; I think five people, a doctor, prominentin the community. And there wasall kinds of concern about some hippies or something that were going to— Someof the other cases, there had already been onetrial in the county, and the person had been found guilty and actually had been sentenced to death, and then it was reversed, came back,and trying to try the same case in the same county after that. There were cases where in a small county—there was one, [ Tindel], out of Lassen—lIthink it was Lassen. Where the people on the jury knew,were friends with the victims, that actually served on the jury. Everybody in the community knew the victims in the case. And with public statements in some ofthese cases, like the autopsy surgeon saying, “This is the most horrible case I’ve ever seen in my 27 years,”all kinds of mutilations and disfigurement. And there was another case where the head of the—some motorcycle—somepeople belonged to a motorcycle gang, put the victim’s head under a—oneofthose hoists you put a car up, and then brought it down, smashedthe head. You know,it was a situation where one of cases involved a peace officer—lI believe that was down in Stanislaus County— and was well-liked, well-involved, I guess, in sports and 56 athletics in the community, and, you know,there were memorials, scholarship funds. The funeral procession was—took, I don’t know,a long time, even just to have all the peoplefile by the casket at the funeral. So certainly with that type of attention in a smaller county—certainly that would weigh—if you hada sensational caselike that it would weigh, certainly, becauseofthe size, towards going to another county, where you mightbe able to get a real large county, like Los Angeles or San Diego County, or Sacramento, to find jurors that were not impacted. But here, because of the lack of the sensationalism—here size doesn’t really play a factor here, a significant factor. And because ofthe distribution of the people the court concludes herereally it’s kind of a—it’s a neutral—teally neutral in this case. (16 RT 634-636.) Next, the court considered “the nature and extentofthepretrial publicity.” (16 RT 636.) The court consideredthe pretrial publicity to have been moderate and non-sensational. The court felt that any publicity related to the VonSeggern killing and to appellant’s step-grandmother, Margaret Johnson, could be “adequately addressed during the jury selection process.” (16 RT 637.) The court addressed Professor Schoenthaler’s pretrial survey as follows: Nowthere was the survey of Dr. Schoenthaler. And the court paid great attention to that, and went over notes, and went back over a couple of times the survey as he presented it, and the court is aware what his bottom line conclusion was. Onthe other hand, the court listened also attentively to the testimony of Dr. Ebbesen. And spent time reviewinghis report. Andhis report is basically critical of Dr. Schoenthaler’s report in various aspects. 57 Andofcourse the question here, as with any evidentiary issue, factually, that the court has to determine, what weight to give various items of evidence, and then going toward the ultimate conclusion that the court makes. Andthe court foundthat the criticisms by Ebbesen—the court concluded that those criticisms had merit, and by reason of that it lessened the weight substantially that the court gave to Dr. Schoenthaler’s survey, and certainly to his ultimate findings. Andthis is particularly true—I’m just going to mention a couple of matters, but it’s not to be inclusive—thatthe criticism that Ebbesen had of the—of Schoenthaler’s survey, in thatit didn’t take into account preexisting tendencies of Lake County jurors that are unrelated and have not been influenced by any pretrial publicity involving this case. Andthat’s basically found on—in Ebbesen’s report on pages 6 throughthetopof 9. Also the court was well influenced by the summary of analysis that was in table 3 on page 22 ofhis report. The opinion surveys the court believes are important. The court has to give it weight. The court has given it weight. Andit’s a lesser weight becauseofthecriticisms. But there again, that in itself is not determinative; the court has to view all the evidencein the case and applyall the factors. (16 RT 637-639.) The court next addressed appellant’s status in the community. It was “mindful of the fact that there was certain publicity in the exhibits about a parolee and so on, and the involvementor possible involvement with the step-grandmother,” but noted that appellant was not a memberof any disfavored group so as to makethis factor weigh toward venue change. (16 RT 639.) Next, the court addressed Ellen Salling’s status in the community: [T]here was no indication that she had any prominenceas such in the community. There was an indication that she was 58 active in a senior center, Alpine Senior Center, over in Lucerne, but nothing really beyondthat. And the court indicated before, the diversity of the population locations within the county, there wasn’t anything to indicate that she had a prominence suchthat it would be recognized by anyoneotherthan outside of the Lucerne community. In reading these cases it seemsthat wherethe victim is a prominentindividual, then you find a lot more extensive coverage, detailed coverage. There’s other things that happen in the community, scholarships, big funerals; and I guess people in the community may tend to relate more with somebody that they know either directly, or they perhaps feel they know becausethey are prominent in the community; they associate perhaps more with that person and—than somebody whomthey didn’t know. So here the victim was not prominent, andit really didn’t cause anything to be generated in the community as such, any big uproar or outcry because of her death. So this factor obviously points in the direction of denial of a motion for a change of venue. (16 RT 639-641.) The court concluded byreiterating its denial of the motion for change of venue. C. Appellant Has Failed to Preserve the Issue for Appeal Whena trial court initially denies a change of venue motion without prejudice, a defendant must renew the motion after voir dire to preserve the issue for appeal. (People v. Hart (1999) 20 Cal.4th 546, 598; People v. Williams (1997) 16 Cal.4th 635, 654-655.) Here, appellant movedthetrial court for a change of venue only prior to voir dire. During the denial of appellant’s motion,thetrial court specifically noted that “[t]he denial is without prejudice to renew the motion during the jury selection, should actual experience intryingto select 59 a jury so justify.” (16 RT 630.) Despite the court’s invitation, appellant failed to renew his motion for change of venueafter voir dire concluded and the jury was empanelled. Appellant has forfeited this claim. D. The Trial Court Did Not Err in Denying Appellant’s Motion for Change of Venue A review of the five factors used by courts in venue determinations showsthat it was not reasonably likely that a fair trial could not be had in Lake Countyat the time the motion was made. (See People v. Massie, supra, 19 Cal.4th at p. 578.) 1. Nature and Gravity of the Offense Thefirst factor—the nature and gravity of the offense—weighs in favor of a change of venue in most capital cases andis not a dispositive factor. The denial of a change of venue has been upheld on numerous occasions even in capital cases involving multiple murders. (Peoplev. Farley (2009) 46 Cal.4th 1053, 1083, citing, e.g., People v. Leonard (2007) 40 Cal.4th 1370, 1395, 1397 [6 murder counts]; People v. Ramirez (2006) 39 Cal.4th 398, 407, 434-435 [13 murder counts]; People v. Welch (1999) 20 Cal.4th 701, 721, 744-745 [6 murder counts].) Asthe trial court noted, this case did not involve multiple murders or any other element that would particularly exacerbate the nature of the offense. (16 RT 632.) This factor does not compel a change of venue. 2. Nature and Extent of News Coverage “When pretrial publicity is in issue it makes especially good sense to primarily rely on the judgmentofthe trial court because the judgesits in the locale and may base the evaluation based on the judge’s own perception of the depth and extent of newsstories that might influence a juror.” (People v. Famalaro, supra, 52 Cal.4th at p. 24, quoting Skilling v. United States (2010) UUS.__ [130 S.Ct. 2896, 2918], internal quotation marks 60 omitted.) Furthermore,it is well settled that pretrial publicity itself—even pervasive, adverse publicity—does not invariably lead to an unfairtrial. (People v. Prince (2007) 40 Cal.4th 1179, 1216; see also People v. Farley, supra, 46 Cal.4th at p. 1084 [discussing “extraordinary cases” reviewed in Prince wherein high court presumed prejudice from pretrial publicity].) Appellant acknowledgesthis point. (AOB 95.) In its pleadings below,the prosecution pointed out that the publicity pertaining to this case wasnot persistent and pervasive but rather consisted of 14 newspaperarticles and twoletters to the editor, spanning approximately 18 months, which averaged out to approximately less than one article per month. (1 CT 253.) According to the prosecution’s pleading, most of the publicity occurred in 1998 and 1999, and only three publicity pieces appeared in the Lake County Record Bee in 2000: January 7, January 20, and April 29, 2000. Ubid.) Furthermore, the April 29, 2000 publicity piece simply stated: “Trudjen is also defending accused murderer Jerrold Johnson, whosetrial is scheduled to begin June 13. Johnsonis accused of the Dec. 19, 1998 bludgeon murder of 76-year old Ellen Salling in her Kono Tayee home.” (/bid.) The passageoftime diminishesthe potential prejudice from pretrial publicity. (People v. Lewis (2008) 43 Cal.4th 415, 449.) The 18-month time period between crimeandtrial also supports the court’s decision. “That time soothes and erasesis a perfectly natural phenomenon, familiar to all.” (People v. Bonin, supra, 46 Cal.3d at pp. 677-678, quoting Patton v. Yount (1984) 467 U.S. 1025, 1034.) Thetrial did not take place until one and a half years after Salling’s murder. Accordingly,it is reasonable to infer memories of prospective jurors who read or watched reports would have been “dimmedbythe passage of time.” (See People v. Famalaro, supra, 52 Cal.4th at p. 22.) 61 Atanyrate, “[t]he ultimate question that the trial court must resolve ..., is whether on the peculiar facts of the individualcase [citation] there is a reasonable likelihood that the jurors who will be, or have been, chosen for the defendant’s trial have formed such fixed opinionsasa result of pretrial publicity that they cannot make the determinations required of them with impartiality.” (People v. Bonin, supra, 46 Cal.3d at p. 672.) This Court has explained: Wehaveneverrequired potential jurors to be ignorant of news accounts ofthe crimeorfree of “‘any preconceived notion as to the guilt or innocence of an accused.’” [Citations.] The mere presence of such awareness on the jurors’ part, without more, does not presumptively deny a defendant due process, because to hold otherwise “‘would be to establish an impossible standard.’” [Citations.] In the absence of somereason to believe otherwise,it is only necessary that a potential juror be 6ceewilling to set aside his or her “‘impression or opinion and render a verdict based on the evidence presented in court.’” [Citations.| (People v. Davis (2009) 46 Cal.4th 539, 575.) Thus, there is no requirementthat jurors be totally ignorant of the facts of a case, so long as they can lay aside their impressions and render an impartial verdict. (People v. Lewis, supra, 43 Cal.4th at p. 450.) Courts mayrely on jurors’ assurances of impartiality, absent a showing that pretrial publicity was so persuasive and damagingthat prejudice had to be presumed. (/bid.) Furthermore,the trial court must distinguish between mere familiarity with the defendantor the crime and an actual predisposition against the defendant. (People v. Prince, supra, 40 Cal.4th at p. 1215.) Here, Ebbesen’s testimony strongly suggested that Schoenthaler’s high estimates of case familiarity and prejudgment were likely unreliable. (See 15A RT 478-485, 487, 493, 498, 500-512.) Furthermore, Ebbesen believed that the reported survey data did not support Schoenthaler’s prejudgment conclusions. (15A RT 487.) Ebbesen’s analysis of the survey data yielded 62 significantly lower prejudgment numbers:at least 91 of 112 respondents,or 81 percent of the entire sample, could be said to have open minds. (15A RT 513-514.) Crucially, Ebbesen determined that only 10 people out of the entire sample of 112 recognizedall three of the following: the case description, the victim’s name, and appellant’s name. (15A RT 514.) In Ebbesen’s analysis, only 7 out of 112 individuals might have formed prejudgmentasto appellant’s guilt prior to the survey. (15A RT 518.) Ebbesen concludedthat potential jurors did not report a high rate of prejudgmentandthat “the court would have no problem selecting a fair and impartial jury (with regard to the effects of pre-trial publicity) from voir dire of potential jurors in Lake County.” (2 CT 331.) In its decision, the court specifically noted that it credited Ebbesen’s criticism of Schoenthaler’s survey results and ultimate findings. (16 RT 638.) This degree of exposureto publicity is lower than that in reported cases in which a change of venue was denied. For instance, in People v. Jennings (1991) 53 Cal.3d 334, 359, 72 percent of the sample remembered the crime, and 31 percent believed the district attorney had a very strong case againstthe defendant. Similarly, in People v. Coleman (1989) 48 Cal.3d 112, 135, 46.3 percent of the public recalled the crime and 31 percent thought the defendant wasdefinitely or probably guilty. Finally, appellant claims the court “totally ignor[ed]” the claims of pretrial publicity related to Margaret Johnson. (AOB 93.) Tothe contrary, in considering the nature and extent of the pretrial publicity, the court specifically addressed this issue by noting that any publicity related to the VonSeggern killing and to Margaret Johnson, could be “adequately addressed during the jury selection process.” (16 RT 637.) Consideration of the nature and extent of the publicity as well as the potential juror pool survey and expert opinions aboutthe survey supports the trial court’s decision to deny appellant’s motion to change venue. 63 3. Size of Community “The larger the local population, the more likely it is that preconceptions about the case have not become imbeddedin the public _ consciousness.” (People v. Balderas (1985) 41 Cal.3d 144, 178.) However, the “size of the county is not alone determinative. [Citation.] ... The key is whether it can be shownthat the population is of such a size that it ‘neutralizes or dilutes the impact of adverse publicity.’ [Citation.]” (People v. Jennings (1991) 53 Cal.3d 334, 363.) There is no magic number of people that must reside in a county in order for it to be deemed large enoughto support a sufficiently diverse jury pool. Indeed, this Court has affirmed a denial of a change of venue in a capital case from a county with 36,555 residents. (People v. Adcox (1988) 47 Cal.3d 207, 233.) The court below acknowledged that Lake County was a small county with approximately 56,000 to 60,000 peopleat the time ofthe trial. (16 RT 632.) However, the court stressed that the population is somewhatspread out over various population centers ranging between 15 to 30 miles from each other. (16 RT 633-634.) Furthermore,the trial was going to be held in an area that would benotat the locus ofthe crime buta substantial distance away. The court concluded that county size did not play a significant factor and, consequently, deemed the third factor in venue determination to be neutral. (16 RT 636.) Appellant argues that the county was so small and media publicity so wide-ranging that some of the seated jurors were exposedto pretrial publicity or knew the victim or witnesses. (AOB 104-106.) However, “it is well-settled that pretrial publicity itself—-even pervasive, adverse publicity—does notinevitably lead to an unfairtrial. This prejudiceis presumedonly in extraordinary cases—notin every case in which pervasive publicity has reached most membersof the venire.” (Peoplev. Farley, supra, 46 Cal.4th at p. 1086, citations and quotations omitted.) 64 Here, jurors about whom appellant specifically complains (AOB 105- 106) all indicated to the court that they would be able to be fair, would follow the law, and would maketheir decision based only on evidence they heard in the courtroom. (22B RT 1887-1890 [juror no. 200002970]; 24B RT 2287-2293 [juror no. 200034886]; 31B RT 3778-3779, 3786 [juror no. 200019102]; 24B RT 2314, 2317 {juror no. 200012964]; 26BRT 2770- 2776, [juror no. 200010689]; 30B RT 3583-3584 [juror no. 200002006]; 25A RT 2443-2444 [juror no. 200014476].) “Tt is sufficient if the juror can lay aside his impression or opinion 299and render a verdict based on the evidence presented in court.’” (People v. Harris (1981) 28 Cal.3d 935, 950, quoting Irvin v. Dowd, supra, 366 U.S. at p. 723.) There is no reason to doubt the jurors’ assertions that they could be fair. (People v. Gallego (1990) 52 Cal.3d 115, 168.) Although a juror’s declaration of impartiality is not conclusive (People v. Williams, supra, 48 Cal.3d at p. 1129),the trial judge, who waspresentandbest able to evaluate the jury, thoroughly examined the prospective jurors regarding their ability to be fair. 4. Appellant’s Status in the Community This factor does not weigh in favor of a change of venue. Asthetrial court found, appellant was neither well-known nor considered an outsider in the community. (16 RT 639.) Schoenthaler admitted that appellant was not a particularly prominent memberof the community andthis factor did not weigh heavily either in favor or against a change of venue. (13C RT 253.) There was no evidence that appellant or his family were well-known before his arrest for the murder. He wasnotassociated with any group such as a disfavored racial minority or street gang towards which the community was“likely to be hostile.” (See People v. Famalaro, supra, 52 Cal.4th at p. 23.) Nor was there any evidenceto indicate that appellant was individually unpopular prior to his commission of the crime inthis case. 65 5. Victim’s Popularity or Prominencein the Community This factor similarly does not weigh in favor of a change of venue. There is no evidencethat Salling was particularly prominent in the community. “‘Prospective jurors would [have] sympathize[d] with [her] fate’ no matter wherethe trial was held and this sympathy stems from the nature of the crime, ‘not the locale of the trial.’” (See People v. Davis, supra, 46 Cal.4th at p. 578.) A change of venueis not required merely because the death of the victim, such as an elderly woman whois loved and respected amongher family andfriends, evokes great sympathy within the community. (See People v. Douglas (1990) 50 Cal.3d 468, 495, abrogated on other grounds in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.) In sum, appellant has failed to demonstrate that his change of venue motion should have been granted. Appellant did not exhaust his peremptory challenges (33A RT 3889), a further indication that appellant believed the jury would be fair and impartial. (People v. Hayes (1999) 21 Cal.4th 1211, 1252 & fn. 5; People v. Daniels (1991) 52 Cal.3d 815, 853- 854.) Thetrial court’s denial of the motion for change of venue is supported by substantial evidence. (See People v. Cooper (1991) 53 Cal.3d 771, 806; see also People v. Coffman (2004) 34 Cal.4th 1, 45 [upholding denial of motion to change venue despite polling showingthatat least 70.9 percent of survey participants recognized the case, and over 80 percent of those believed defendants were guilty or probably guilty].) This case does not fall “within the limited class of cases in which prejudice would be presumed underthe United States Constitution.” (People v. Prince, supra, 40 Cal.4th at p. 1217.) E. Appellant Received a Fair Trial in Lake County Appellant also claims that denial of his venue motion violated his constitutional rights to a fair trial, due process, and a reliable penalty 66 determination. (AOB 107-118.) Appellant’s claim must fail as he has not shown that he was prejudiced bythe trial court’s denial of his motion to change venue. (See People v. Massie, supra, 19 Cal.4th at p. 578; People v. Pride (1992) 3 Cal.4th 195, 224.) Specifically, appellant has failed to show “both that the courterred in denying the change of venue motion,i.e., that at the time of the motion it was reasonably likely that a fair trial could not be had, and that the error was prejudicial, i.e., that it [is] reasonably likely that a fair trial was not in fact had.” (People v. Jenkins, supra, 22 Cal.4th at p. 943, citations and quotations omitted.) Appellant was entitled to be tried by “a panel of impartial, ‘indifferent’ jurors.” (rvin v. Dowd, supra, 366 U.S. at p. 722.) A trial court may be unable to seat an impartial jury because of prejudicial pretrial publicity or an inflamed community atmosphere. (Rideau v. Louisiana (1963) 373 U.S. 726.) Prejudice is presumed when the record demonstrates that the community where the trial was held was saturated with prejudicial, and inflammatory media publicity about the crime. (Rideau v. Louisiana, supra, 373 US. at pp. 726-727; Harris v. Pulley (9th Cir. 1988) 885 F.2d 1354, 1361.) Under such circumstances, it is not necessary to demonstrate actual bias. However, the presumption of prejudice is “‘rarely invoked and only in extremesituations.’” (United States v. McVeigh (10th Cir. 1998) 153 F.3d 1166, 1181; Nebraska Press Assn. v. Stuart (1976) 427 U.S. 539, 554.) For the reasons detailed above, the publicity in appellant’s case was not such as to support a presumption of prejudice. Indeed, the publicity had subsided before trial began and was unremarkable in comparison to other capital cases. Professor Ebbesentestified at the venue motion hearing that an adequate voir dire will result in a panel without any jurors with prejudgmentissues. (15A RT 548.) Ebbesen read the pretrial survey 67 results to suggest that “the court would have no problem selecting a fair and impartial jury from voir dire of potential jurors in Lake County.” (2 CT 331.) Appellant has not shownthat prejudice could be presumed based on pretrial publicity. Appellant has also failed to demonstrate actual prejudice. Actual prejudice is shown where a sufficient number of the jury panel has such fixed opinions about the guilt of the defendant that they could not impartially judge the case, and trial before that panel would be inherently prejudicial. (Harris v. Pulley, supra, 885 F.2d at p. 1364.) In deciding whether there wasactual prejudice against a defendant, the reviewing court “must determine if the jurors demonstrated actual partiality or hostility that could not be laid aside.” (id. at p. 1363.) Appellant has failed to demonstrate any such hostility by the empanelled jurors and instead relies on pretrial publicity and the small size of Lake County as proxies for showing actual prejudice. (AOB 114-118.) However, as previously explained, a juror need not be “totally ignorant of the facts and issues involved.” (Murphy v. Florida (1975) 421 U.S. 794, 799-800.) ““‘It is sufficient if the juror can lay aside his impression or opinion and render a verdict based upon the evidence presented in court.’” (/d. at p. 800, quoting Irvin v. Dowd, supra, 366 U.S. at p. 723.) Appellant relies on Murphy to argue that “juror assurances that they are equal to the task cannot be dispositive of an accused’s rights to a fair trial by an impartial jury.” (AOB 113.) Murphy, however, distinguished trials which ... had been conductedin a circus atmosphere, due in large part to the intrusions of the press, which was allowedto sit within the bar of the court and to overrun it with television equipment. Similarly, Sheppard arose from trial infected not only by a background of extremely inflammatory publicity but also by a courthouse given over to accommodate the public appetite for carnival. The proceedings in these cases were entirely lacking in 68 the solemnity and sobriety to which a defendantis entitled in a system that subscribes to any notion of fairness and rejects the verdict of amob. They cannot be madeto standfor the proposition thatjuror exposure to information abouta state defendant's prior convictions or to news accounts ofthe crime with which he is charged alone presumptively deprives the defendant ofdue process. To resolve this case, we mustturn, therefore, to any indicationsin the totality of circumstancesthat petitioner’s trial was not fundamentallyfair. (Murphy v. Florida, supra, 421 U.S. at p. 799, italics added.) Even though in Murphy, during voir dire, a juror “conceded that his prior impression of petitioner would dispose him to convict,” the court did not “attach great significance to this statement, . . . in light of the leading nature of counsel’s questions and the juror’s other testimony indicating that he had no deep impression ofpetitioneratall.” (Ud. at pp. 801-802.) Here, no jurors made any statements approaching a demonstration of prejudice against appellant. Asthis Court has observed: [I]t should be emphasized that the controlling cases “cannot be made to stand for the proposition that juror exposure to information about a state defendant’s prior convictionsor to newsaccounts of the crime with which heis charged alone presumptively deprives the defendant of due process.” (Murphy v. Florida, supra, 421 U.S. at p. 799 [44 L.Ed.2d at p. 594].) “It is not required . . . that the jurors betotally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion of the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or Innocence of an accused, without more,is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficientifthejuror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” 69 (People v. Harris, supra, 28 Cal.3d at pp. 949-950, italics added, quoting Irvin v. Dowd, supra, 366 U.S. at pp. 722-723; accord, People v. Cooper, supra, 53 Cal.3d at p. 883.) “The defendant bears the burden of proof that the jurors chosen have such fixed opinionsthat they cannot be impartial.” (People v. Hayes, supra, 21 Cal.4th at p. 1250, citing People v. Sanders, supra, 11 Cal.4th at p. 505.) The voir dire questioning of the jurors about whom appellant complains demonstrates the lack oftaint ofjurors by pretrial publicity. Noneofthe jurors held a fixed opinion regarding appellant’s guilt, let alone one they wouldnot set aside so as to decide the case fairly on the evidence presentedat trial. (See 22B RT 1887-1890; 24B RT 2287-2293; 24B RT 2314, 2317; 25A RT 2443-2444; 26B RT 2770-2776; 30B RT 3583-3584; 31B RT 3778-3779, 3786.) Appellant has failed to demonstrate presumedor actual prejudice. He had a right to a fair trial and received noless. Ii. THE TRIAL JUDGE WAS NOT REQUIRED TO DISQUALIFY HIMSELF Appellant contendsthat thetrial judge’s relationship with the prosecutor required the judge to disqualify himself, and that the court’s failure to do so deprived appellantofhis rights to a fair trial, due process of law, and a reliable penalty determination. He further contendsthat the failure to disqualify was structural error and reversible per se. (AOB 119- 140.) Appellant’s claim fails. A. Factual Background Prior to beginning the venue hearing, the judge in this case made the following statement: THE COURT:There’s some matters that I need to advise everyone. There are provisions in the Code of Civil Procedure, 170, et seq. [h]aving to do with disqualification ofjudges for various causes and reasons. 70 Andif a judge believes that there’s something about a case where the parties—or something connected with the case which rises to a certain threshold that falls within one of the categories that’s there, then the judge hasthe obligation to disqualify himself or herself. On the other hand, there may be information that—inthe judge’s opinion that falls below that threshold for disqualification that’s required, but nevertheless there has to be disclosure. Andit’s on that basis now that I’m stating what I’m about to state to you. And I’m stating that because Mr. Hedstrom is the prosecutor who’s bringingthe case, as I understandit, on behalf of the People. Andso there are certain things that I wanted to disclose about myrelationship with him overthe past years. I wasthe district attorney in this county from 1977 to 1984, the elected district attorney, and during that period of timeMr. Hedstrom was a deputy district attorney in that office. Healso, for a period of about the last year that I was in office—I wastrying a change of venue case over in Butte County, and he—lIput him in charge, in essence, of runningthe district attorney’s office in my absence. And we havebasically been friends over a numberofyears. Andthere’s never been a time, I have to say, when, after I went on the bench—obviously the relationship you have with people changesas to what you can do, what you can’t do, what you can talk about, what you can’t talk about. And there was never anything inappropriate about that whenever we met atsocial functions or whatever: Business wasnot the topic of conversation. So then—I don’t know, maybe a couple—a yearagoor so, maybe a year and a half—I’m not sure anymore—but when— whetherit was a year and a half ago or two years ago, when Mr. Hedstrom didn’t run for his third term, then his status wasa little different. He was no longerthe district attorney. It turned outthat there was a judge, in department 4, who was not going to run again for election. And about that time I had 71 had discussions with Mr. Hedstrom aboutjudging, about that position, and quite frankly and candidly, I urged him to run for that position. And in a non-public way, during the campaign I helped him, advising him on judicial ethics which apply to candidates during a campaign, various inner workings of the court, explained that to him, that—variousareas of the law,et cetera, et cetera, and helped him in a non-public way with his campaign, as a judge could do in a judicial campaign. In fact a judge could publicly endorse or support or give money. I gave no money,but I did give advice and timein that regard, in a non-public way, to his campaign, which was—wellthe election was, I guess, in Marchofthis year. And so wegot on maybean evencloser basis asa result of that, and—butthere again, there’s always a separation and a distance from whatI do as a judge. He also was—well to give you an example: My mother passed away in April, and he wasone ofthe pallbearers at the funeral this past Apmil. Andsince his election we have had various conversations from time to time aboutthe facilities down in department4, things relating to types ofjudicial research material that would be available, things like that. I suspect he’s had that conversation maybewith other judges as well. Andwerecently, I think last week, talked more aboutjudicial material and facilities and other things. So anyway, I just wanted everyone to know what the relationship had been. In my opinion it doesn’t affect anything that I would do, but on the other hand, I feel compelled, as I understand the responsibilities of a judge in this position, to makethis disclosure. So with that, if there’s—if this is new information,or information you haven’t discussed with your client, whatever, I’d be happy to give you time,if you want a reasonable— (13A RT 127-130.) 72 Defense counsel responded: Mr. Hedstrom andI had a conversation before your Honor took the bench aboutthat very thing, and I talked to myclient aboutit. As I explained to myclient, I’ve practiced law in Fresno for 24 years; I’ve gone to law school with a couple of the judges; I’ve got a close personalrelationship with acouple of the other judges, but I’ve never received a ruling from any of them thatI didn’t deserve, either for or against my position. And Mr. Hedstrom expects that the rulings from the bench will be fair and impartial for both ofus. Myclient agrees[.] (13A RT 131.) Appellant was present in court during these proceedings. (13A RT 127.) B. Appellant Has Forfeited His Statutory Remedy 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 appearanceofbias.” (People v. Freeman (2010) 47 Cal.4th 993; People v. Cowan (2010) 50 Cal.4th 401, 456.) A party must seek the disqualification of a judgeat the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification. The issue cannot beraised for the first time on appeal. (People v. Lewis & Oliver (2006) 39 Cal.4th 970, 994; People v. Guerra (2006) 37 Cal.4th 1067, 1111, overruled on other grounds, People v. Rundle (2008) 43 Cal.4th 76, 151; Code Civ. Proc., § 170.3, subd. (d).) Nor can the defendant complain that the alleged bias affected subsequent rulings. (/d.) Where the defendant had a statutory remedy to challenge the judge but forfeited that remedy by failing to pursueit, the defendant cannot then “fall back on the narrower dueprocess protection without making the 73 heightened showingof a probability, rather than the mere appearance, of actual bias to prevail.” (People v. Freeman, supra, 47 Cal.4th at p. 1006.) Therefore, appellant has to show a probability of actual bias to prevail in his claim. C. Appellant Did Not Receive Ineffective Assistance of Counsel To preserve his claim, appellant contends that his counsel ineptly failed to “seek the judge’s recusal or object attrial to judicial acts that could have been perceived and objected to as manifesting bias, presumedbias, or actual bias.” (AOB 122.) There is no merit to this claim. To demonstrate ineffectiveness of counsel, defendant must show that, “(1) counsel’s representation was deficient, i.e., it fell below an objective standard of reasonableness underprevailing professional norms; and (2) counsel’s representation subjected the defendant to prejudice,1.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant. [Citations.]” (People v. Mitcham (1992) 1 Cal.4th 1027, 1058; see also Strickland v. Washington (1984) 466 U.S. 668, 687-688.) “Reviewing courts defer to counsel’s reasonable tactical decisions,” and a conviction will be reversed only if there could be no conceivable reasons for counsel’s acts or omissions. (People v. Jones (2003) 29 Cal.4th 1229, 1254.) Tactical errors are generally not reversible and defense counsel’s tactical decisions should be evaluated in the context of available facts, not in the “harsh light of hindsight.” (People v. Hinton (2006) 37 Cal.4th 839, 876.) “In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.” (Strickland v. Washington, supra, 466 U.S.at p. 688.) “Judicial scrutiny of counsel’s performance must be highly deferential.” (Cd. at p. 689.) “It is all too tempting for a defendant to 74 second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.]” (/bid.) “Becauseofthe difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcomethe presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ [Citation.]” (/bid.) The United States Supreme Court has recently reaffirmed the principles discussed in Strickland: A court considering a claim of ineffective assistance must apply a “strong presumption”that counsel’s representation was within the “wide range” of reasonable professional assistance. [Citation.] The challenger’s burden is to show “that counsel ’ madeerrors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” [Citation.] [4]... “Surmounting Strickland’s high baris never an easy task.” [Citation.] An ineffective-assistance claim can function as a wayto escaperules of waiver and forfeiture and raise issues not presentedat trial, and so the Strickland standard must be applied with scrupulouscare,lest “intrusive post-trial inquiry” threaten the integrity of the very adversary process the right to counselis meant to serve. [Citation.] Even under de novo review,the standard for judging counsel’s representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge.It is “all too tempting”to “second-guess counsel’s assistance after conviction or adverse sentence.” [Citations.] The question is whether an attorney’s representation amounted to incompetence under“prevailing professional norms,” not whetherit deviated from best practices or most common custom. [Citation.] 75 (Harrington v. Richter (2011) ___ U.S. __ [131 S.Ct. 770].) “To the extent the record on appeal fails to disclose why counsel acted or failed to act in the mannerchallenged,[courts] affirm the judgment unless counsel was asked for an explanation andfailed to provide one,or unless there simply could be nosatisfactory explanation.” (People v. Maury (2003) 30 Cal.4th 342, 389.) The reviewing court’s inability to understand counsel’s action or inaction is no basis for finding ineffective assistance, because the reasons, which mayinclude the defendant’s communications with counsel, may not appear on the record. (Peoplev. Jenkins (1975) 13 Cal.3d 749, 755.) Here, defense counsel wasinvited to object or take further action after the trial judge explained on the record the nature ofhis relationship with the prosecutor. (13A RT 130.) Defense counsel madeclear that in his experience, a close personal relationship does not result in differential treatment. He discussed the issue with the prosecutor and explainedit to appellant. Defense counsel professed his belief and appellant’s agreementthat the court “will be fair and impartial for both of us.” (13A RT 131.) It was therefore reasonable for defense counsel to makethetactical decision not to challenge the judge. Appellant’s related contention that he wasnot personally advised about the relationship between the judge and the prosecutor (AOB 120) is counterfactual, as he was present in court during the discussion of their relationship. Additionally, defense counsel stated on the record that he explained the issue to appellant and appellant agreed with his evaluation. (143A RT 127, 131.) Appellantfails to cite any authority to support his contention that his counsel’s thoughtful waiver of a judicial bias claim constituted ineffective assistance of counsel. (AOB 122-127.) Counsel was notineffective. 76 D. Appellant Has Failed to Show a Probability of Actual Bias A defendant has a due processright under the state and federal Constitutions to an impartial trial judge. (Arizona v. Fulminante (1991) 499 U.S. 279, 309; People v. Brown (1993) 6 Cal.4th 322, 332.) “TWJhile a showing ofactual bias is not required for judicial disqualification under the due process clause, neither is the mere appearanceofbias sufficient. Instead, based on an objective assessment of coethe circumstancesin the particular case, there must exist “the probability of actual bias on the part of the judge or decisionmaker[that] is too high to 999999be constitutionally tolerable. (People v. Cowan, supra, 50 Cal.4th at p. 456, quoting Caperton v. A. T. Massey Coal Co. (2009) 556 U.S. 868, 872.) A claim relating only to the appearance ofbias is to be pursued understate disqualification statutes, with resort to the Constitution beinga rarity. (lbid., citing Caperton, supra, 556 U.S. at p. 890.) The high court made clear that only the most “extreme facts” would support judicial qualification based on the due processclause. (Cowan,supra, at p. 457, citing Caperton, supra, 556 U.S.at p. 887.) The United States Supreme Court has “made it abundantly clear that the due process clause should not be routinely invoked as a ground for judicial disqualification. Rather, it is the exceptional case presenting extreme facts where a due process violation will be found. [Citation.] Less extreme cases—includingthose that involve the mere appearance, but not the probability, of bias—should be resolved under more expansive disqualification statutes and codes ofjudicial conduct. (/bid.)” (People v. Freeman, supra, 47 Cal.4th at p. 1005.) In Freeman,this Court foundthat due process was not denied where the defendant wastried before a judge who had previously disqualified himself based on an appearance of bias— his friendship with a judge whom the defendant was rumoredto have been 77 stalking—but wholater was reassigned to the defendant’s case after the stalking rumors proved unfounded. (/d. at pp. 997, 1000-1006.) This Court also declined to find that a defendant’s federal due process right and statutory right (Code Civ. Proc., § 170.3, subd. (a)(1)) to an impartial judge were violated whenthe original trial judge continued to preside overa brief period of the trial after learning his close friends were both upcoming witnesses andrelatives of one of the victims. (People v. Cowan, supra, 50 Cal.4th at pp. 456-457.) Appellantfails to present any legal or factual support for his claim that “Judge Crone was evidently biased and had a clearly manifested and pervasive unity of interest with the prosecutor” (AOB 131). Appellant unsuccessfully analogizesthetrial judge’s alleged bias to that in Caperton, supra, 556 U.S. 868. (AOB 133.) A closer discussion of Caperton is helpful in placing claims of bias in proper perspective. Caperton madeclearthat judicial bias is largely left to regulation by statute and suggestedthat “[P]ersonal bias or prejudice ‘alone would not be sufficient basis for imposing a constitutional requirement under the Due Process Clause.’ [Citation.]” (Caperton, supra, 556 U.S.at p. 876.) Additionally, the court discussed the meaning of “probability of actual bias” as “circumstances ‘in which experience teaches that the probability of actual bias on the part of the judge or decisionmakeris too high to be constitutionally tolerable.’ [Citation.]” The Court then discussed “two instances where the Court has required recusal.” (Caperton, supra, 556 U.S. at p. 877.) The first was “where a judge had a financial interest in the outcomeofa case, although the interest was less than what would have been considered personal or direct at common law.” (/bid.) The Court discussed Tumey v. State ofOhio (1927) 273 U.S. 510, a case where a judge was disqualified in part because he received a salary supplementas a direct result of whether or not a defendant was convicted. It then turned to other 78 cases where the judges were deemedto have been biased because they held some financial stake in the outcome. (/d. at p. 878.) “The second instance requiring recusal” the Caperton Court continued, wasa situation where a judge had “a conflict arising from his participation in an earlier proceeding.” (dd. at p. 880.) Therefore, Caperton does not support appellant’s bias argument, as he does notassert that the judge below had either a pecuniary interest or participated in any earlier proceeding resulting in conflict. Appellant’s reliance on Aetna Life Ins. Co. v. Lavoie (1986) 475 U.S. 813 (AOB 134) is equally unavailing. In Aetna, too, the judge had a direct and personal pecuniary interest related to the claim he was charged with adjudicating. (/d. at pp. 822-824.) Indeed, the Supreme Court found the judge biased because his “opinion for the Alabama Supreme Court had the clear and immediate effect of enhancing both the legal status and the settlement value of his own case,” which essentially made him “‘a judge in his own case.’” (/d. at p. 824.) Appellant fails to identify concrete examples where probability of actual bias was intolerably high. Instead, he suggests that the prosecutor’s proper discharge of his duty to ensure a speedytrial was merely a subterfuge for his eagerness to assumethe bench and further his own career. (AOB 135.) However, “[I]n a criminal case, the people of the State of California have the right... toa speedy... trial.” (Cal. Const., Art. I, § 29.) “|T]he people, the defendant, and the victims and other witnesses have the right to an expeditious disposition, and to that end it shall be the duty of all courts and judicial officers and of all counsel, both for the prosecution and the defense, to expedite these proceedings to the greatest degree thatis consistent with the ends ofjustice.” (§ 1050, subdivision (a).) A speedy trial is generally considered to be both a fundamentalright of the accused 79 and a policy of sound administration of the criminal law. Un re Begerow (1901) 133 Cal. 349, 352-354.) Appellant similarly argues that the judge made variousrulings “in order to benefit the prosecutor’s interests” in speeding the trial along. (AOB 135-137.) Appellant is mistaken. Thetrial court has a duty to control the proceedings. (§ 1044). “{A] trial court’s numerousrulings against a party—even when erroneous—donotestablish a charge of judicial bias, especially when they are subject to review.” (Peoplev. Guerra, supra, 37 Cal.4th at p. 1112.) On appeal, a defendant’s due processright to a an impartial judge underthe state and federal Constitutions requires a showing ofjudicial misconduct or bias so prejudicial that it deprived defendantofa fair trial, as opposed to a perfect trial. (/bid.) Indeed, the reviewing court presumes the honesty and integrity of those serving as judges. (People v. Chatman (2006) 38 Cal.4th 344, 364.) In his nonstatutory due process claim, appellant has failed to present this Court with “extreme facts,” which demonstrate a probability of actual bias. Accordingly, his state and federal constitutional rights to due process were not violated. Further, to the extent that appellant contends, in conclusory fashion,that his other state and federal constitutional rights were violated by the appearance ofjudicial bias (AOB 138-140), his contention is unsupported by the record andis without merit. If. SUBSTANTIAL EVIDENCE SUPPORTS APPELLANT’S CONVICTION OF CARJACKING CHARGED IN COUNT FOUR AND MURDER COMMITTED DURING THE COMMISSION OR ATTEMPTED COMMISSION OF CARJACKING CHARGEDIN COUNT ONE Appellant claims that the evidence wasinsufficient to support a conviction of carjacking (§ 215, subd. (a)) in count four and felony-murder predicated on carjacking in count one. Appellant argues that there is 80 insufficient evidence that he harboredtheintentto steal Salling’s car before or during his use of force or fear against the victim, and that the more reasonable inference from the evidence is that he formedtheintent totake the car after killing Salling. (AOB 141-150.) We disagree. A. Standard of Review Whenthe sufficiency of the evidence to support a criminal conviction is challenged on appeal, the appellate court must review the whole record in the light most favorable to the judgment below to determine whetherit discloses substantial evidence that is reasonable, credible, and of solid value such that a reasonabletrier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Osband (1996) 13 Cal.4th 622, 690; see also Jackson v. Virginia (1979) 443 U.S. 307, 318.) The court presumesin support of the judgmentthe existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Osband, supra, 13 Cal.4th at p. 690.) The reviewing court cannot reweigh the evidence or evaluate the credibility of the witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Ifthe circumstances reasonably justify the trier of fact’s findings, reversal is not warranted merely because the circumstances mightalso be reasonably reconciled with a contrary finding. (People v. Dominguez (1995) 38 Cal.App.4th 410, 421.) B. Substantial Evidence Supports Appellant Carjacking Conviction Thereis sufficient evidence that appellant intendedto take the car from Salling prior to assaulting and killing her and that the car was in her immediate presence. 81 1. Substantial Evidence Supports the Inference that Appellant Harbored an Intent to Take Salling’s CarPrior to Assaulting and Killing Her ““Carjacking’ is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motorvehicle, againsthis or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by meansofforce or fear.” (§ 215, subd. (a).) Establishing a “carjacking” requires substantial evidence of “either an intent to permanently or temporarily” “take” a vehicle from a person possessing it, or from such a person’s immediate presence, by means of force or fear. (People v. Lopez (2003) 31 Cal.4th 1051, 1058-1059.) “The requisite intent—to deprive the possessor of possession—mustexist before or during the use of force of fear. [Citations.]” (People v. Gomez (2011) 192 Cal.App.4th 609, 618.) The jury may infer a defendant’s specific intent to commit a crime from all of the facts and circumstances shown bythe evidence. (See People v. Bloom (1989) 48 Cal.3d 1194, 1208 [“Evidence of a defendant’s state of mindis almost inevitably circumstantial, but circumstantial evidenceis as sufficient as direct evidence to support a conviction”’].) Here, substantial evidence supports the conclusion that appellant formed an intent to permanently or temporarily deprive Salling of her vehicle prior to assaulting Salling. First, appellant needed a car. He was on the run from the police, had crashed his own car during this pursuit, and needed a methodof continuing his escape. Second,there is substantial evidence to infer that appellant knew that Salling’s car was in the garage when he cameacrossher house. Salling’s 82 housing development waslocated in a rural, mountainous area (34B RT 4080), a difficult one to access without a car. Appellant was familiar with the area having previously delivered newspapers to Kono Tayee, and specifically to Salling’s house for an entire year. (36A RT 4404-4408.) He approached Salling’s house as she was baking cookies in the kitchen. The kitchen wasvisible from the road. It was reasonable for the jury to infer that appellant knew that since Salling was at home,then there wasalso a car in the attached garage. Third, appellant had already armed himself with a weapon—atree branch——-whenheentered Salling’s home. (34B RT 4153.) Therefore, there was substantial evidence to support the finding that appellant had already formedthe intent to steal Salling’s car when he assaulted and killed her. 2. Salling’s Car Wasin Her Immediate Presence for Purposes of the Carjacking Statute Appellant further argues that Salling’s car was not taken from her immediate person or presence. (AOB 150-154.) Wedisagree. The evidence here showedthat Salling’s garage wasattached to her main living quarters, separated from her by a door. (34B RT 4130.) Salling kept her purse and car keys on the countertop in the kitchen. (34B RT 4132-4133.) Were she not prevented by appellant’s forceful assault from getting in her vehicle, she could have retained possession of it. As in People v. Medina (1995) 39 Cal.App.4th 643, Salling’s car was in her “immediate presence” for the purpose of section 215. ‘A vehicle is within a person’s immediate presence for purposes of carjackingif it is sufficiently within his control so that he could retain possessionofit if not prevented by force or fear. [Citations.] It is not necessary that the victim be physically present in the vehicle when the confrontation occurs. [Citation.]” (People v. Gomez, supra, 192 83 Cal.App.4th at p. 623.) Similarly, CALJIC No. 9.46 defined immediate presence as “an area within the alleged victim’s reach, observation or control, so that he or she could, if not overcomeby violence or prevented by fear, retain possession of the subjected or subject property.” (See also, People v. Medina, supra, 39 Cal.App.4th at p. 643 [“immediate presence” element does not require the victim to be in actual physical possession of the car when confrontation occurs; rather, immediate presence encompasses area in proximity to vehicle].) Carjacking “‘is a direct offshoot of the crime of robbery.” (/n re Travis W. (2003) 107 Cal.App.4th 368, 374.) Robbery is defined as “the felonious taking ofpersonal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211.) Property is considered to be in the person’s Cees“immediate presence” for purposes of robberyif it is “““so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession ofit.”’ [Citations.]” (People v. Hayes (1990) 52 Cal.3d 577, 627.) Thus, “immediate presence ... must mean at least an area within which the victim could reasonably be expected to exercise some physical control over [her] 333 property. in the victim's immediate presence ‘even thoughit is located in another [Citation.] Underthis definition, property may be foundto be room ofthe house, or in another building on [the] premises.’ [Citations.]’’ (Ibid.) The later carjacking statute uses language identical to the earlier robbery statute, and no contrary intent appears, courts presumethat the Legislature intended the phrase “immediate presence” to have the same meaning in both the robbery and carjacking statutes. (People v. Lopez (2003) 31 Cal.4th 1051, 1060.) Therefore, Salling’s car was within her “immediate presence”for the purposeof the carjacking special circumstance becauseit was “located in 84 another room ofthe house,” specifically an attached garage, which wasjust down the hallway and within her eyesight. (People v. Hayes, supra, 52 Cal.3d at p. 627.) The case is analogous to Medina in which car keys were taken from the victim through force or fear while inside a building, and the car parked outside was then stolen. (People v. Medina, supra, 39 Cal.App.4th at pp. 651-652.) Salling’s proximity to the car at the time of her assault was quite unlike the facts ofPeople v. Coleman (2007) 146 Cal.App.4th 1363, to which appellant analogizes this case (AOB 153-154). In that case, the defendant entered a store and forced a store employee to give him the keys to the store owner’s personal vehicle which was not on the premisesat the time. (Ud. at p. 1366.) The appellate court concluded the requirements for a carjacking conviction had not been met because the store employee “was not within any physical proximity to the [vehicle], the keys she relinquished were not her own, and there was no evidencethat she had ever been or would be a driver of or passengerin the [vehicle].” (/d. at p. 1373.) In other words, while the evidence showed the defendant took the vehicle from someone’s immediate presence, it did not show the defendant took the vehicle from the immediate presence of a person whopossessed it within the meaning of section 215, subdivision (a). Conversely, appellant took Salling’s car from the immediate presence of its owner, Salling herself. C. Substantial Evidence Supports the Felony-Murder Conviction Predicated on Carjacking The felony-murderrule providesthat “[a]l] murder . . . which is committed in the perpetration of, or attempt to perpetrate, arson,rape, carjacking, robbery, burglary, mayhem,[or] train wrecking . . . is murder of the first degree.” (§ 189.) The rule does not require “a strict causal or temporal relationship between the felony and the murder . . . whatis required is proof beyond a reasonable doubtthat the felony and murder 85 werepart of one continuoustransaction. [Citation.] This transaction may include a defendant’s flight after the felony to a place of temporary safety.” (People v. Young (2005) 34 Cal.4th 1149, 1175.) The specific intent to commit the underlying felony must coexist with the act of killing before the felony could be used as a basis for felony murder. (See People v. Musselwhite (1998) 17 Cal.4th 1216, 1250.) The requisite carjacking intent, to deprive the possessor of possession, must exist before or during the use of force or fear. (People v. Gomez, supra, 192 Cal.App.4th at p. 609.) “The specific intent with which an act is performed is a question of fact. [Citation.] If any substantial evidence supports the trier of fact’s finding on this issue, [the appellate court] will not disturb it.” (/n re Albert A. (1996) 47 Cal.App.4th 1004, 1008.) A jury deciding the truth of a felony-murder special circumstanceis not required to assign a hierarchy to the defendant’s motives in order to determine which of multiple concurrent intents was “primary,” but instead the jury need only determine whether the commission of the underlying felony was or was not merely incidental to the murder. (People v. Dement (2011) 53 Cal.4th 1, 47.) The court need not “discern various mental states in too fine of a fashion,” as a concurrent intent to kill and commit an independentfelonyis sufficient to support a felony-murder special circumstance. (People v. Abilez (2007) 41 Cal.4th 472, 511.) This Court has stated that “when one kills another and takes substantial property from the victim,it is ordinarily reasonable to presume the killing was for purposes of robbery.” (People v. Turner (1990) 50 Cal.3d 668, 688.) “Ifa person commits a murder, and after doing so takes the victim’s wallet, the jury may reasonably infer that the murder was committed for the purpose of obtaining the wallet, because murders are commonly committed to obtain money.” (People v. Marshall (1997) 15 86 Cal.4th 1, 35.) Appellant acknowledgesthis authority, citing People v. Hughes (2002) 27 Cal.4th 825A. (AOB 147.) In Hughes, this Court found that whereafter killing the victim the defendant cashed a check madeoutto the victim and hid her wallet, there is substantial evidence to suggest that the defendant entered the apartment with the intent to rob. (People v. Hughes (2002) 27 Cal.4th 287, 357-358.) “{O]n this record a jury reasonably could infer that defendant intended from the outset to steal the victim’s possessions by force, or at least possessed that intent as he was engagedin inflicting force upon her.” (/d. at p. 358.) Similarly here, substantial evidence supports a finding ofa first degree murderin the attempted commission of a carjacking. The factthat, after killing Salling, appellant took her car and usedit as a getaway vehicle to continuehisflight from the police, compels the conclusion that appellant entered her house with the intent to steal her car, amongotherthings. Substantial evidence supports the conclusion that appellant killed Salling in furtherance of the carjacking. In sum, there wassubstantial evidence for the jury to have found beyond a reasonable doubtthat appellant killed Salling in the commission of, and in furtherance of, a carjacking. IV. SUBSTANTIAL EVIDENCE SUPPORTS THE SPECIAL CIRCUMSTANCE IN COUNT ONE Appellant similarly argues that the carjacking special circumstance alleged in count one is unsupported by substantial evidence that the murder occurred while appellant was engaged in the commission or attempted commission of carjacking. (AOB 158-168.) Appellant’s claim fails. Furthermore, appellant fails to demonstrate prejudice. A. Standard of Review A special circumstance finding must be supported by substantial evidence. (People v. Jenkins, supra, 22 Cal.4th at p. 1022.) In reviewing the sufficiency of evidence of a special circumstance, the question is 87 whether, after viewing the evidence in the light most favorable to the People, any rationaltrier of fact could have found the essential elements of the allegation beyond a reasonable doubt. (People v. Mickey (1991) 54 Cal.3d 612, 678.) B. Substantial Evidence Supports the Carjacking Special Circumstance Finding A felony-murder special circumstance is proven absent intent to kill, premeditation, or deliberation if there is proof beyond a reasonable doubt that appellant personally killed the victim in the commission of, and in furtherance of, one of the felonies enumerated in section 190.2, subdivision (a)(17). (People v. Thornton (2007) 41 Cal.4th 391, 436.) In People v. Green (1980) 27 Cal.3d 1, 61-62, overruled on other groundsas stated in People v. Dominguez (2006) 39 Cal.4th 1141, 1155, fn. 8, this Court “held that the felony-murder special circumstance1s ‘inapplicable to cases in which the defendant intended to commit murder and only incidentally committed one of the specified felonies while doing so.” (People v. Raley (1992) 2 Cal.4th 870, 902.) There is sufficient evidence to support a carjacking special circumstance based on evidence that the defendant killed another person andat the time ofthe killing took substantial property from the victim, as “a jury ordinarily may reasonably infer that the defendant killed the victim to accomplish the taking and thus committed the offense of robbery.” (People v. Nelson (2011) 51 Cal.4th 198, 212.) Here, there was substantial evidence for the jury to have reasonably found that appellant, having crashed his car and on the run from the police, was looking for another vehicle to complete his escape from the police. It wasfurther reasonable for the jury to infer that appellant assaulted and killed Salling in the course of stealing her car (CALJIC No. 8.81.17) and 88 not that the carjacking was “merely incidental to the murder” (AOB 162, citing People v. Green, supra, 27 Cal.3d at pp. 59-61). Asset out in Part IT], supra, appellant was familiar with Salling’s house, having previously delivered newspapers to her housing development. It was reasonable to infer that appellant knew or assumed that many residents of that developmenthad cars, given the remotenessofthe area. He approached Salling’s house already armed with a weapon—atree limb—as she was baking cookies in the kitchen, which wasvisible from the road. The jury heard testimony that Salling sustained injuries consistent with having been causedby a tree limb. (39B RT 5049.) The jury may have madea reasonable inference that appellant knew that if the resident of the house was at home,then there wasalso a car in the attached garage. It wasreasonable for the jury to accept the prosecution theory that appellant formed the intent to steal Salling’s car before he assaulted and killed her. Thus, the carjacking was not merely incidental to the killing of Salling. Lastly, appellant claims that the lack of substantial evidence supporting the special circumstance deprived him ofhis rights to a reliable penalty determination under the Eighth and Fourteenth Amendments. (AOB 167-168.) However, as discussed above, substantial evidence supported the carjacking special circumstance finding. Moreover, appellant’s penalty is supported by twoother special circumstancesthat appellant does not challenge. C. Appellant Has Failed to Demonstrate Prejudice Appellant was charged with felony-murder in count one based on three special circumstances: the killing was committed while appellant was engaged in committing burglary, robbery, and carjacking. (1 CT 104-105.) Assuming, arguendo, that the carjacking special circumstance finding is unsupported by substantial evidence, appellant’s conviction for first degree 89 murder based on felony-murder remains supported by the two other special circumstance findings: burglary and robbery. “T1|f one of the prosecution’s alternative theories of criminal liability is found unsupported by the evidence, the judgment of conviction mayrest on any legally sufficient theory unaffected bythe error, unless the record affirmatively demonstrates that the jury relied on the unsupported ground.” (People v. Johnson (1993) 6 Cal.4th 1, 42, overruled on another ground by People v. Rogers (2006) 39 Cal.4th 826, 879; see also People v. Kelly (2007) 42 Cal.4th 763, 789 [true findings of rape-murder and robbery- murder special circumstances make it unnecessary to decide whether the evidence was sufficient for the jury to also find premeditated murder].) Appellant has failed to demonstrate prejudice. V. THE TRIAL COURT PROPERLY INSTRUCTED THE JURY ON THE USE OF VICTIM IMPACT EVIDENCE DURING THE PENALTY PHASE OF THE TRIAL Appellant contendsfor the first time on appeal that the trial court erred by not instructing the jury on the proper use of the victim impact evidence during the penalty phase ofhis trial. (AOB 169-182.) Asan initial matter, appellant has forfeited his claim because hefailed to either object to the instructions or request a clarification below. In any event,his contention fails becausethetrial court properly instructed the jury on how to consider the evidence presented duringthe penalty phase ofthe trial with standard CALJIC instructions. A. Appellant’s Claim Has Been Forfeited Appellant did not raise this claim in the trial court. “A party may not argue on appeal that an instruction correct in law was too general or incomplete, and thus needed clarification, without first requesting such clarification at trial.” (People v. Hillhouse (2002) 27 Cal.4th 469, 503.) When a defendant believes a jury instruction needs amplification, 90 clarification, or explanation, it is incumbent upon him or her to make such a request. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1192.) A failure to object or request such clarifications at trial bars appellate review of the issue. (People v. Johnson (1993) 6 Cal.4th 1, 52-53.) In the instant matter, the jury was instructed, inter alia, pursuant to CALJIC Nos.8.84.1 [Duty of Jury—Penalty Proceeding] (4 CT 927), 8.85 [Penalty Trial—Factors For Consideration] (4 CT 928-929), 8.86 [Penalty Trial—Conviction of Other Crimes—Proof Beyond a Reasonable Doubt] (4 CT 957-958), 8.87 [Penalty Tnal—Other Criminal Activity—Proof Beyond a Reasonable Doubt] and 8.88 [Penalty Trial—Concluding Instruction] (4 CT 986-987). As appellant did not object to these jury instructions before the trial court, nor request that the court instruct the jury with specific guidance regarding victim impact evidence,this claim has been forfeited. B. General Principles of Admissibility of Victim Impact Evidence The Eighth Amendmenterects no per se bar prohibiting a capital jury from considering victim-impact evidencerelating to a victim’s personal characteristics and impact of the murder on the family, and does not preclude a prosecutor from arguing such evidence. (Payne v. Tennessee (1991) 501 U.S. 808.) Victim-impact evidence is admissible during the penalty phase ofa capital trial because Eighth Amendmentprinciples do not prevent the sentencing authority from considering evidence of the specific harm caused by the crime. The victim impact evidence cannot be cumulative, irrelevant, or “so unduly prejudicial that it rendersthe trial fundamentally unfair.” (d. at pp. 825, 829.) The California Supreme Court found victim-impact evidence and related “victim character” evidence to be admissible as a “circumstance of the crime” under section 190.3, factor (a). (People v. Robinson (2005) 37 Cal.4th 592, 650.) Section 190.3, subdivision (a), permits the prosecution 91 to establish aggravation by the circumstances of the crime. The word “circumstances” does not mean merely immediate temporal and spatial circumstances, but also extends to those which surround the crime “materially, morally, or logically.” Factor (a) allows evidence and argument on the specific harm caused by the defendant, including the psychological and emotional impact on surviving victims and the impact on the family of the victim. (People v. Edwards (1991) 54 Cal.3d 787, 833- 836.) Furthermore, undersection 190.3, subdivision (b), a jury may hear facts surroundingprior criminal activity involving force or violence. (People v. Moore (2011) 51 Cal.4th 1104, 1135; People v. Jurado (2006) 38 Cal.4th 72, 135.) Factor (b) embraces not only the existence of the activity, but the pertinent circumstancesas well, including the results of the conduct and impact on victims. (People v. Price (1991) 1 Cal.4th 324, 479; People v. Ashmus (1991) 54 Cal.3d 932, 985.) Neither the state nor federal Constitution forbids admitting evidence ofunadjudicated prior crimes for penalty determination, including the surrounding circumstances. (People v. Hawthorne (1992) 4 Cal.4th 43, 76-77.) C. The Court Properly Instructed the Jury During the Penalty Phase Asnoted in subsection A, supra, the trial court instructed the jury with the requisite CALJIC instructions pertaining to proper consideration of penalty phase evidence. (4 CT 927-929, 957-958, 986-987). This Court has explained “that the standard CALJIC penalty phase instructions ‘are adequate to inform the jurors of their sentencing responsibilities in 295compliance with federal and state constitutional standards.’” (Peoplev. Gurule (2002) 28 Cal.4th 557, 659; see also People v. Tate (2010) 49 Cal.4th 635, 708.) Appellant now claimsthat thetrial court neglected to sufficiently guide the jury regarding how to evaluate victim impact 92 evidence. (AOB 174.) Appellant acknowledgesthat this Court has consistently rejected such claims (AOB 176) but contends that the Court’s reasoning in so doing “is unsound” (AOB 178). Appellant offers no persuasive reason for this Court to revisit its prior decisions. The jury below wasinstructed: “You mustneither be influenced by bias nor prejudice against the defendant, nor swayed by public opinion or public feelings. Both the People and the defendant have a right to expect that you will considerall of the evidence, follow the law, exercise your discretion conscientiously, and reach a just verdict.” (CALJIC No. 8.84.1; 4 CT 927). CALJIC No.8.84.1 is sufficient to guide the jury in considering the emotional impact of the penalty phase evidence. (People v. Hartsch (2010) 49 Cal.4th 472, 511; see also People v. Ochoa (2001)26 Cal.4th 398, 455, abrogated on other groundsas stated in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14.) Thetrial court need not instruct a jury not to be influenced by emotion resulting from victim-impact evidence. It need not give duplicative instructions; an instruction that the jury may not imposethe death penalty as a result of an irrational, subjective response to emotion evidence is duplicative of CALJIC No. 8.84.1. (People v. Carey (2007) 41 Cal.4th 109, 134.) Appellant specifically complains about victim impact testimony surrounding appellant’s killing of VonSeggern, which wasintroduced during the penalty phase pursuantto section 190.3, subdivision (b). VonSeggern’s father, Gerald Ohman,testified about the impact of VonSeggern’s death on the family. (48B RT 6107-6111.) As an initial matter, neither statute nor state or federal constitutional principles forbid admission of such evidence. (See People v. Hawthorne, supra, 4 Cal.4th at pp. 76-77.) However, appellant contendsthat “[a]llowing victim impact evidence to be placed before the jury without proper instructions on the jury’s use 93 and consideration of that evidence has the clear capacity to taint the jury’s decision on whether to impose death.” (AOB 177.) This claim is without merit. The jurors weretold to considerall of the jury instructions given, and, in CALJIC No.8.88,the trial court specifically told the jurors that in “weighing the aggravating and mitigating circumstances,” they were to “determine underthe relevant evidence which penaltyis justified and appropriate by consideringthetotality of the aggravating circumstances with the totality of the mitigating circumstances.” The trial court also instructed that each juror “must be persuaded that the aggravating circumstancesare so substantial in comparison with the mitigating circumstancesthat it warrants death instead of life without parole.” (4 CT 986.) Appellant contendsthat “there was nothing in the instructionsto dissuade the jury from incorporating . . . considerations into the sentencing calculus, including vengeance and the wishesor opinionsofthe victim’s families.” (AOB 180.) This Court has previously rejected this contention, noting that a specific instruction about how to evaluate victim impact evidenceis not necessary, and that a suggestion “that a juror’s ‘emotional response’ to the evidence mayplay nopart in the decision to vote for the death penalty” is incorrect. (People v. Famalaro, supra, 52 Cal.4th at p. 73.) Furthermore,the trial court had no sua sponte duty to instruct the jury “not to consider the viewsof the victim’s survivors, .. . because it is ‘not necessary to the jury's understanding ofthis case.’ [Citation.]” (/bid.) Conversely, “jurors may in considering the impact of the defendant’s crimes, ‘exercise sympathy for the defendant’s murder victims and .. . their bereaved family members.’” (People v. Zamudio (2008) 43 Cal.4th 327, 369.) , In assessing whether the jury was adequately guided under the Eighth or Fourteenth Amendment, the court determines how it is reasonably likely 94 the jury understoodthe instruction, and whetherthe instruction, so understood, accurately reflects applicable law. (People v. Barnett (1998) 17 Cal.4th 1044, 1161.) When instructed in the penalty phase that it “must neither be influenced bybias nor prejudice against the defendant,” and to “follow the law” and “reach a just verdict,” the jurors likely understood and followed those simple instructions. (See People v. Mickey, supra, 54 Cal.3d at p. 689, fn. 17 (“The crucial assumption underlying our constitutional system oftrial by jury is that jurors generally understand and faithfully follow instructions”’].) No reasonable juror would have misunderstoodthe jury instructions that were given as permitting an improperuse of the victim impacttestimony. Since there is no reasonable likelihood that the jury misunderstood the properuse of victim impact evidence,the instructions given cannot be deemed erroneous. (See, Boyde v. California (1990) 494 U.S. 370; People v. Benson (1990) 52 Cal.3d 754, 801.) The jury was sufficiently instructed about how to consider penalty phase victim impact evidence. In any event, any instructional error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)° The United States Supreme Court has suggested that a death sentenceis not rendered unconstitutional by an erroneousinstruction when other aggravating facts and circumstancesare sufficient to result in a death verdict. (See Brown v. Sanders (2006) 546 U.S. 212, 224.) A differently wordedinstruction to the jury would not have changed the outcomein the ° Instructional error, even one which impermissibly shifts the burden of proof, or omits an element of the offense or a special circumstance, may be subjected to the Chapman harmless-error standard. (Popev. Illinois (1987) 481 U.S. 497, 501-504; see also Rose v. Clark (1986) 478 U.S. 570, 579 [aside from errors affecting fundamental rights, “there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis’’].) 95 penalty phaseofthis case given the substantial evidence in aggravation and moral considerations that supported the jury’s penalty determination. Any instructional error was harmless beyond a reasonable doubt. Appellant’s claim should be rejected. VI. THE COURT PROPERLY ADMITTED EVIDENCEOF THE VONSEGGERN KILLING Appellant contends that the trial court erred by purportedly permitting the prosecutionto retry the VonSeggern killing by including the crime of murderin the relevant penalty phase instructions: CALJIC Nos. 8.00 through 8.21 and 8.87. (AOB 183-224.) Asan initial matter, appellant has. waivedhis claim. If not waived, appellant’s claim fails because his no contest plea to the charge of voluntary manslaughterin the killing of VonSeggern did not constitute an implied acquittal of the murder charge. Accordingly, the principles of collateral estoppel, res judicata, and double jeopardyare inapplicable. Further, appellant’s constitutional rights were not abridged. Finally, appellant has failed to show prejudice. A. Appellant Has Waived His Claim A defendant must object to introduction of factor (b) (other violent criminal conduct by the defendant) evidence to preserve the issue for appeal on either statutory or constitutional grounds. (People v. Lewis & Oliver, supra, 39 Cal.4th at p. 1052.) Similarly, if not raised in the trial court, claims of collateral estoppel (People v. Neely (1999) 70 Cal.App.4th 767, 782-783) and double jeopardy (People v. Belcher (1974) 11 Cal.3d 91, 96) are waived. During the penalty phaseofthetrial, the prosecutor sought to introduce evidenceof the circumstances underlying appellant’s manslaughter conviction for VonSeggern’s death. (45A RT 5598-5606.) The prosecutor madeit clear that “the People obviously are intending to introduce evidence of conduct more serious than what the Defendant 96 admitted to in the prior case.” (45A RT 5607.) Defense counsel noted on the record “Didn’t I say earlier this morning—maybe I was not understood—we’re not objecting to the evidence being offered in aggravation being presented by the Prosecution, to any aspectofit.” (45A RT 5607.) The prosecutor also asked “that the jury be instructed concerning the elements of murder with respect to his killing of [VonSeggern].” (45A RT 5607.) The court again asked defense counsel whether there was any objection, and defense counsel said “no.” (45A RT 5609.) The court asked whether there was “any objection on the legal theory of whichit’s offered, that is, the crime of murder?” (45A RT 5609.) Defense counsel explained: Well, I don’t have an objection to the legal theory. But, of course, we’re going to point out to the jury that the ultimate conviction was voluntary manslaughter. And if the D.A.is seeking an instruction to the jury on murder, we’ll certainly seek an instruction on voluntary manslaughter. But as far as the presentation of it is concerned andthe theories, no, no objection. (45A RT 5609.) The court asked, with respect to factor (b) evidence, “will there be a request by either party to have the Court instruct on the basic crime or crimes to which such evidenceis offered?” (45A RT 5610.) The prosecutor respondedthat he will make such a request. Defense counsel stated, “We don’t have a problem with—if the D.A. wants to have an instruction, we don’t have a problem with it.” (45A RT 5610.) After discussing other instructions, the court again returned to the matterofinstructionsrelated to the VonSeggern killing: The Court: [I]n looking again at instructional matters, on the VonSeggern factor B, the People intend to apparently ask forit to be instructed or at least ask for an instruction from which the jury could concludethat the factor in aggravation is one in essence that they should consider as murderrather thanit’s manslaughter; is that correct? 97 [Prosecutor]: Correct. The Court: So on that matter, then, the instruction,as I think you said, [defense counsel], that your position at this time is that that evidence—it would be yourposition that that offense was no more than whatthe records show,that is, voluntary manslaughter? [Defense Counsel]: That’s correct. The Court: So there would be a need then to have [them] instructed both ways _ [Prosecutor]: That’s correct [Defense Counsel]: And that’s my position. (45A RT 5628-5629.) After some further discussion of the meaning of appellant’s no contest plea for manslaughter of VonSeggern, defense counsel noted, “Well, we certainly agree that no contest is considered by the Court the sameas a guilty plea. And we have no problems dealing with the idea that voluntary manslaughter is a plea bargain from a murder charge. In fact, we’dlike to have the opportunity to argue that to the jury ourselves.” (45A RT 5629.) Finally, during discussion ofjury instructions, defense counsel was asked his views on whether a murderinstruction should be given to the penalty jury and responded,“I think we ought to giveit out of an abundanceof cautionto tell you the truth.” (51B RT 6615.) The court asked, “So for [VonSeggern] you believe that both the voluntary, which there’s the conviction, as well as what’s contended 1s murderby the District Attorney, that the murderinstruction ought to be given?” The defense counsel said that he did. (51B RT 6616.) The above statements by defense counsel make clear that he considered and waived the evidentiary and instructional claim appellant now bringsto this Court. 98 1. Appellant Did Not Receive Ineffective Assistance of Counsel _To preserve his claim, appellant contendsthat if he is deemed to have waivedor forfeited his claim, he received ineffective assistance of counsel. (AOB 213-217.) Appellant’s claim fails because the record discloses that his counsel’s representation did not fall below an objective standard of reasonableness underprevailing professional norms,noris there a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant. (See People v. Mitcham, supra, 1 Cal.4th at p. 1058.) The relevant legal standard for effectiveness of counselis set out fully in Part U.C., supra. In short, to demonstrate that his counsel was ineffective, appellant must show that counsel’s representation fell below an objective standard of reasonableness underprevailing professional norms and that there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant. (People v. Mitcham, supra, | Cal.4th at p. 1058; Strickland v. Washington, supra, 466 U.S.at pp. 687-688.) Counsel’s reasonable tactical decisions are entitled to deference, subject to the inquiry of whether counsel’s assistance was reasonable considering all the circumstances. (People v. Jones, supra, 29 Cal.4th at p. 1254; Strickland v. Washington, supra, 466 U.S.at p. 688.) Courts considering ineffective assistance claims “must apply a ‘strong presumption’ that counsel’s representation was within the ‘wide range’ of reasonable professional assistance.” (Harrington v. Richter, supra, _ U.S. atp.__‘ [131 S.Ct. at p. 787].) Appellant’s “burden is to show ‘that counsel madeerrors so serious that counsel was not functioning as the “‘counsel” guaranteed the defendant by the Sixth Amendment.’” (/bid.) “Surmounting Strickland’s high bar is never an easy task.” [Citation.] An ineffective-assistance claim can function as a wayto escape rules of waiver and forfeiture andraise issues not 99 presented at trial, and so the Strickland standard must be applied with scrupulouscare, lest “intrusive post-trial inquiry” threaten the integrity of the very adversary process the right to counsel is meant to serve. [Citation.] Even under de novoreview,the standard for judging counsel’s representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is “all too tempting” to “second-guess counsel’s assistance after conviction or adverse sentence.” [Citations.] The question is whether an attorney’s representation amounted to incompetence under “prevailing professional norms,” not whetherit deviated from best practices or most common custom. [Citation.] (Harrington v. Richter, supra, _U.S.atp.___ [131 S.Ct. at p. 788].) Here, defense counselactively participated in the penalty phase of the trial. He lodged a motion objecting to the introduction of the evidence of Margaret Johnson’s homicide andfire at her trailer and then withdrew it upon further consideration. (45A RT 5589.) When the prosecutor sought to introduce evidence of the underlying circumstances of appellant’s manslaughter conviction related to VonSeggern’s death (45A RT 5598- 5606), defense counsel explicitly noted on the record that he was not objecting “to any aspect” of the evidence being offered in aggravation during the penalty phase. (45 RT 5607.) Defense counsel participated in a thorough discussion of potential penalty phase evidence of the VonSeggern killing, and made clear that he was not objecting to the murderinstructions. (51B RT 6615-6616.) Appellant has failed to show that there could be no conceivable reasons for defense counsel’s tactical decision to allow the introduction of the evidence andthe relevant CALJIC instructions. (See People v. Jones, supra, 29 Cal.4th at p. 1254.) Evaluated in the context of available facts, not in the “harsh light of hindsight,” defense counsel’s tactical decision is reasonable. (People v. Hinton, supra, 37 Cal.4th at p. 876.) Considering 100 the evidence to be introduced in the penalty phase regarding VonSeggern’s death, including evidence showing that appellant had sex with another woman on the night of VonSeggern’s death and was not bothered by VonSeggern’s death (46B RT 5802; 50B RT 6456-6457), that appellant sold VonSeggern’s car and forged her signature (47A RT 5826, 5832-5833, 5877-5880), the postmortem manipulation of VonSeggern’s body by appellant (50B RT 6460-6461), and painful victim impact testimony (48B RT 6107-6109), defense counsel may have reasonably madethetactical decision that it would be prudent both to allow sympathetic evidence of appellant’s remorse(see e.g., 53A RT 6766-6768) and to advise the penalty phase jury on the relevant crimes attending this conduct including involuntary manslaughter—a lesser crime than that for which appellant was convicted (see 4 CT 959; 53B RT 6839). Defense counsel argued in closing that appellant acknowledged killing VonSeggern and took responsibility for that act. (53A RT 6761.) Counsel’s assistance was reasonable consideringall the circumstances. (See Strickland yv. Washington, supra, 466 U.S.at p. 688.) Our Supreme Court has warned that “[a]n ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presentedat trial.” (Harrington v. Richter, supra, __ U.S. atp. ___ [131 S.Ct. 770, at p. 778].)° The Court focused the relevant inquiry on “whether an attorney’s representation amounted to incompetence under ‘prevailing professional norms,’ not whetherit deviated from best practices or most common custom.” (/bid.) Here, defense counsel actively ° Indeed, appellant’s recognition that “a plea of once in jeopardy cannotberaised forthe first time on appeal except in the context of a claim of ineffective assistance of counsel” (AOB 213, citing People v. Scott (1997) 15 Cal.4th 1188, 1201) may suggest heis raising an ineffective assistance of counsel claim precisely for this reason. 101 participated in the discussions related to evidence admissible in the penalty phase pursuant to section 190.3, factors (b) and (c) and related instructions. (45A RT 5607, 5609-5610, 5628-5629; 51B RT 6615-6616.) His participation evinced an understanding of the penalty phase proceedings and wasa tactically considered approach to the evidence offered in aggravation andrelated instructions. Appellant briefly notes that where double jeopardy appliesas bar, there could be “no legitimate tactical reason for failing to raise it.” (AOB 216, citing People v. Morales (2003) 112 Cal.App.4th 1176, 1185.) However, as discussed below, here double jeopardy wasnot a bar to the factor (b) evidence introducedbythe prosecution. It is established that counselis not ineffective for failing to make frivolous or futile motions (People v. Thompson (2010) 49 Cal.4th 79, 122), so a failure to object on double jeopardy grounds does not constitute ineffective assistance of counsel. The record makesclear that defense counsel’s representation was not incompetent under prevailing professional norms and that appellant’s ineffective assistance claim should not allow him to escape rules of waiver. Appellant did not receive ineffective assistance of counsel. B. General Legal Principles for Factor (b) Evidence Section 190.3 contemplates consideration of someaspects of a defendant’s criminal history: (factor (b), prior violent criminalactivity; factor (c), prior felony conviction). (People v. Douglas (1990) 50 Cal.3d 468, 525; see also People v. Mattson (1990) 50 Cal.3d 826, 877.) A defendant’s criminal history is part of his or her background and can properly be considered in aggravation. (People v. Carey (2007) 41 Cal.4th 109, 135.) | Prior criminal activity may be admitted both as violent criminal activity under section 190.3, subdivision (b), and as a prior felony 102 conviction undersection 190.3, subdivision (c). (People v. Kelly (1992) 1 Cal.4th 495, 549; People v. Price, supra, 1 Cal.4th at p. 472.) Factor(b) evidence must demonstrate the commission of an actual crime, specifically, a violation of the Penal Code. (People v. Jurado (2006) 38 Cal.4th 72, 136.) “[A] defendantis not entitled to prevent admission ofthe ‘“sordid details” of criminal conduct under section 190.3, factor (b) “by stipulating to any resulting conviction or to a sanitized version of the facts surrounding the offense.””” (People v. Clark (2011) 52 Cal.4th 856, 1000, quoting People v. Cunningham (2001) 25 Cal.4th 926, 1017.) “The proper focus for consideration ofprior violent crimes in the penalty phase is on the facts | of the defendant’s past actions as they reflect on [the defendant’s] character, rather than on the labels to be assigned to those crimes.” (People v. Collins (2010) 49 Cal.4th 175, 219, internal quotation marks omitted.) When evidence of other crimes is admissible underfactor (b), then “‘evidence of the surrounding circumstancesis admissible to give context to the episode, even though the surrounding circumstances include other criminal activity that would not be admissible by itself.’” (People v. Thomas (2011) 51 Cal.4th 449, 505, quoting People v. Wallace, supra, 44 Cal.4th at p. 1081.) C. Factual Background | During the penalty phase ofthetrial, the prosecutor sought to introduce evidence of the circumstances underlying appellant’s manslaughter conviction of VonSeggern’s death. (45A RT 5598-5606.) The prosecutor madeit clear that “the People obviously are intending to introduce evidence of conduct moreserious than what the Defendant admitted to in the prior case.” (45 RT 5607.) Ata later hearing, the prosecutor explained that he did not intend to “characterize the prior felony conviction other than a plea of no contest to voluntary manslaughter,” but “that doesn’t preclude the people from introducing evidence that showsthat the killing of [VonSeggern] was something more than voluntary 103 manslaughter.” (46A RT 5649-5650.) Healso asked that the jury be given a murderinstruction. (46A RT 5650.) After penalty phase testimony, the court held another hearing to discuss instructions. At that hearing, the defense requested instructions for voluntary manslaughter, and the court asked what was the purpose of the instructions. Defense counsel responded: Myclient was convicted of voluntary manslaughter for Jennifer VonSeggern. The District Attorney wants to or—and has presented a case in an effort to argueit’s really not manslaughter; it’s really murder. And I think it’s fair to have the jury understand what voluntary manslaughteris in relation to that set of facts. (51B RT 6608.) The prosecutor argued in the penalty phase closing argumentthat appellant admitted to having committed an involuntary manslaughter of VonSeggern, which can be considered in aggravation against him. The prosecutor urged the jury, however, that the crime really was a murder because of additional testimony appellant provided in the penalty phase of the Salling trial that was not available at the time of his plea. (53A RT 6719.) He had this motive of getting money to cook methamphetamine with James Vaughn;he had the near immediate sale of Jennifer’s car; he needed a place for James and Desiree tostay; and obviously he had a romantic interest in Desiree. Jennifer was in the way. He removedherjust like he removed Margaret, like he removedEllen. (53A RT 6719.) Later in the argument, the prosecutor discussed the VonSeggern manslaughter as a prior conviction that must be proven beyond a reasonable doubt. (53A RT 6730.) He continued: [W]hether you decide beyond a reasonable doubt [VonSeggern’s] case is a murderor an involuntary manslaughter, I submit to you, 104 it doesn’t really matter for this analysis. And I’Il tell you why. Wecan’t prove exactly how that crime occurred, but we can proveall sorts of things about what kind ofperson heis by the way he handled himself after the actual killing. So the law requires that you be givenall these instructions, regardless of the label you put on it. And the minimum label is involuntary manslaughter. This is very, very weighty. (53A RT 6733.) The court instructed the jury that “[e]vidence has been introduced for the purpose of showingthat the Defendant has committed the following criminal acts: .. . murder or voluntary manslaughter or involuntary manslaughter of Jennifer Lisa VonSeggern.” (53B RT 6839.) D. Appellant Was Not “Impliedly Acquitted” of Murdering VonSeggern Section 190.3, subdivision (b), does not permit use of evidence of criminalactivity of which the defendant has been acquitted. (Peoplev. Lewis & Oliver, supra, 39 Cal.4th at p. 1052; People v. Monterroso (2004) 34 Cal.4th 743, 777.) Appellant argues that he was prosecuted and acquitted of VonSeggern’s murder. (AOB 187-194.) Appellant is mistaken. This Court has “strictly limited this statutory notion of an acquittal to a judicial determination on the merits ofthe truth orfalsity of the charge. [Citations.] Thus, an acquittal after prosecution does not occur for purposesof section 190.3 wherethe trial court dismissed the case under section 995 for lack of probable cause as to guilt. [Citation.]” (People v. Stitely (2005) 35 Cal.4th 514, 563.) Stitely clarified that the Court has “reached the same result even wherea statutory bar preventsrefiling of the dismissed charge. [Citation.]” (/bid.) Dismissal of charges, whether bargained for or otherwise, does not constitute an acquittal and thus does not dictate exclusion of evidence ofthe underlying incident. (People v. Koontz (2002) 27 Cal.4th 1041, 1087; People v. Bradford (1997) 15 Cal.4th 1229, 1375.) Appellant recognizes 105 this authority. (AOB 190-192.) The fact that previous charges have been dismissed does not prevent their being proved at the penalty phase of a capital-murder charge. (People v. Valencia (2008) 43 Cal.4th 268, 294.) The use of dismissed charges as a circumstance in aggravation does not violate an implicit term of a plea bargain when usedat a capital penalty hearing, and People v. Harvey (1979) 25 Cal.3d 754, does not preclude consideration by the jury of prior violent acts which underlay charges previously dismissed pursuant to a plea bargain. (People v. Rodrigues, supra, 8 Cal.4th at p. 1157; People v. Garceau (1993) 6 Cal.4th 140, 199.) Appellant relies on a host of cases to support his general assertion that “a conviction of a lesser included crime or on a lesser degree of an offense is generally considered to be an implied acquittal of the greater crime.” (AOB 189.) However, the cases on which appellantrelies for this proposition are quite explicit that it is acquittal by ajury that is entitled to such treatment. (See People v. Fields (1996) 13 Cal.4th 289, 299 [“for double jeopardy purposes, an acquittal barring a second prosecution may be either express, or implied by a conviction on a lesser included offense when the jury was given the opportunity to return a verdict on the greater offense]; see also Stone v. Superior Court (1982) 31 Cal.3d 503, 511, fn. 5.) The limitation in section 190.3 concerning criminal activity for which the defendant was prosecuted and “acquitted” is strictly construed to refer only to a determination on the merits. (People v. Monterroso, supra, 34 Cal.4th at p. 777.) Appellant acknowledges the Court’s decision in Monterroso. (AOB 207.) In Monterroso, the defendant claimed that admission of conduct underlying his misdemeanor charge which was subsequently dismissed waserror becauseit violated section 190.3’s bar of “prosecuted and acquitted”activity. (/bid.) The court found no error because courts “havestrictly construed the limitation in section 190.3 concerning criminal activity for which the defendant was prosecuted and 106 “acquitted” to refer only to “a determination of the merits.” [Citation.] Thus, a charge that was dismissed under section 995, whichis not a determination on the merits, is admissible at the penalty phase.” (/bid.) This Court has found thata trial court did not err in permitting the prosecution to introduce evidence from whichthe jury could conclude defendant committed a greater related offense (assault likely to cause great bodily injury) than that to which he pleadedguilty in a prior proceeding (battery). (People v. Jones (1998) 17 Cal.4th 279, 312.) In Jones, the Court found that the evidence of the conduct underlying the battery conviction was appropriately admitted pursuant to factor (b). (/bid.) The Court also foundthat the trial court “did not err by permitting the ' prosecution to introduce evidence from whichthe jury could find the attack constituted an assault by meanslikely to inflict great bodily injury.” (bid.) This issue similarly presented itself in People v. Rodrigues, supra, 8 Cal.4th 1060. In Rodrigues, defendant wasinitially charged with murder committed in 1980 and eventually pleaded guilty to being an accessory under section 32. Other charges were dismissed. (/d. at p. 1148.) In the penalty phase of defendant’s later capital trial, the prosecutor introduced evidence in aggravation of defendant’s participation in the 1980 homicide pursuantto factor (b) as well as evidence of his conviction as an accessory pursuantto factor (c). (/bid.) Rodrigues relied on People v. Harvey, supra, 25 Cal.3d at p. 758 to contend that an implied term of his dismissal of the 1980 murder charges and other allegations was that he would suffer no adverse consequences by reason of the facts underlying the dismissed charges. (People v. Rodrigues, supra, 8 Cal.4th at p. 1157.) The Court rejected his argumentas follows: As defendant acknowledges, we have squarely rejected the argumentthat the use of dismissed charges as a circumstance in aggravation violates an implicit term of a plea bargain when 107 used at a capital penalty hearing. [Citation.] We see no reason to revisit the issue. (lbid.) Rodrigues also contended that “because his conviction of being an accessory constituted an acquittal of murder, relitigation of the dismissed murder charge during the penalty phase violated his federal due process rights and the state and federal constitutional guarantee against double jeopardy.” (People v. Rodrigues, supra, 8 Cal.4th at p. 1157.) The Court rejected that argument as well, because ““‘[a] bargained conviction or dismissal does not constitute an acquittal under section 190.3.’ [Citations.]” (/bid.) In a footnote, the Court rejected “any notion that defendant’s plea to accessory meant that he had been prosecuted and acquitted of murder as a matter of law”in part because accessory to a felony was not necessarily a lesser included offense of murder. (/bid., fn. 57.) However, the converse of this statement is not necessarily also true— that is, a plea to a lesser included offense does not mean that a defendant had been acquitted of the greater offense. Indeed, this Court has found that introducing the facts of a prior manslaughter conviction which tend to show malice doesnot violate the section 190.3 provision barring evidence whenthereis a prior acquittal, because defendant was never charged with or acquitted of murder during his prior manslaughtertrial. (People v. Johnson (1992) 3 Cal.4th 1183, 1240-1241; People v. Danielson (1992) 3 Cal.4th 691, 720, overruled on other grounds, Price v. Superior Court (2001) 25 Cal.4th 1046, 1069.) Although appellant here wasinitially charged with VonSeggern’s murder, he was nevertried for it, and thus his manslaughter no contest plea cannot be held to equal an acquittal of VonSeggern’s murder. 108 E. Collateral Estoppel and Res Judicata Did Not Bar Introduction of Detailed Evidence of VonSeggern’s Killing Appellant claims that principles of collateral estoppel and res judicata barred the prosecutor from “retrying” appellant’s manslaughter conviction. (AOB 194-203.) “The doctrine of res judicata gives certain conclusive effect to a former judgmentin subsequentlitigation involving the same controversy.” (7 Witkin, Cal. Procedure (4th ed. 1997) Judgment, § 280,p. 820.) This Court explainedit thus: The doctrine “has a double aspect.” (Todhunter v. Smith (1934) 219 Cal. 690, 695, 28 P.2d 916.) “In its primary aspect,” commonly knownasclaim preclusion, it “operates as a barto the maintenance of a second suit between the sameparties on the same cause ofaction. [Citation.]” (Clark v. Lesher (1956) 46 Cal.2d 874, 880, 299 P.2d 865.) “In its secondary aspect,” commonly knownascollateral estoppel, “[t]he prior judgment .. . ‘operates’”in “a second suit... based ona different cause of action ... ‘as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determinedin thefirst action.’ [Citation.]” (Ibid.) (People v. Barragan (2004) 32 Cal.4th 236, 252-253.) In order to apply collateral estoppel to an issue, “(1) A claim or issue raised in the present actionis identical to a claim orissue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted wasa party or in privity with a party to the prior proceeding. [Citations.]” (/d. at p. 253.) Appellant claimsthat the principles of collateral estoppel and res judicata barred admission of the facts underlying appellant’s killing of VonSeggern and instruction that permitted the jury to consider the facts in the context of the crimeof murder. (AOB 194-203.) Appellant is mistaken. This Court has rejected the notion that evidence of incidents underlying previously dismissed counts is barred under the doctrine of 109 collateral estoppel, preventing relitigation of an issue decided at a prior proceeding. (People v. Bradford, supra, 15 Cal.Ath at p. 1375.) Appellant’s reliance on principles discussed in People v. Wallace (2004) 33 Cal.4th 738 (AOB 202) is unavailing. Wallace does not provide guidance on the issue appellant raises. In Wallace, this Court merely noted that the legal effect of a no contest plea is the same as of a guilty plea, that is, admission of every element of the charged crime(id. at p. 749) and that a defendant who hadstipulated to the existence of a factual basis for his plea “could not have appealed from his ensuing conviction on the basis of insufficiency of the evidence” (/d. at p. 750). Wallace did not hold that a dismissal of charges is the same as acquittal on the merits. Appellant’s claim must fail. F. Appellant Was Not Subjected to Double Jeopardy Appellant’s related double jeopardy claim fails for similar reasons. This Court has madeclear that use of prior crimes as an aggravating factor does not violate double jeopardy. (People v. Garceau, supra, 6 Cal.4th 140, 199-200; People v. Wader (1993) 5 Cal.4th 610, 656; People v. Visciotti (1992) 2 Cal.4th 1, 71.) The constitutional guarantee against double jeopardy “is inapplicable where evidence ofprior criminal activity is introduced in a subsequenttrial as an aggravating factor for consideration by a penalty phasejury. [Citations.]” (People v. Garceau, supra, 6 Cal.4th at pp. 199-200.) Presentation of facts and circumstances underlying prior violent felony conviction does not violate double jeopardy principles. (People v. Stanley, supra, 10 Cal.4th at p. 820.) The Court addressed such a claim in Jones, supra, noting that the double jeopardy guarantees “are inapplicable when ‘evidence of prior criminal activity is introduced in a subsequenttrial as an aggravating factor 399for consideration by a penalty phase jury.’” (People v. Jones, supra, 17 110 Cal.4th at p. 312, citing People v. Garceau, supra, 6 Cal.4th at pp. 199-200.) The Court continued: Andbecausehe hasnot been “subject for the same offense to be twice put in jeopardyoflife or limb” (U.S. Const., Amend. V), his claim that the Fifth Amendmentgives him “a nghtto be tried only on the grand jury’s indictment” is without merit-he was not tried here for the prior offenseat all, although evidenceofits circumstances was introduced against him in his penalty trial for his current crime. (People v. Jones, supra, 17 Cal.4th at p. 313.) Courts have likewise rejected identical double jeopardy claims in earlier decisions. In People v. Visciotti, supra, 2 Cal.4th 1, at page 71, this Court found: “[t]he presentation of evidence of past criminal conductat a sentencing hearing does not place the defendant in jeopardy with respect to the past offenses. He is not ontrial for the past offense, is not subject to conviction or punishmentfor the past offense, and may not claim either speedytrial or double jeopardy protection against introduction of such evidence. [Citation.]” Appellant has not been subjected to double jeopardy. G. Any Error Was Harmless Appellant must establish that there is a reasonable possibility that, even if it was error for the court to have instructed the jury and to have permitted the prosecutor to argue the evidence in aggravation in relation to VonSeggern’s killing prejudiced the jury’s consideration of the appropriate penalty. (See People v. Brown (1988) 46 Cal.3d 432, 446-448; People v. Monterroso, supra, 34 Cal.4th at p. 777.) Appellant has failed to make such a showing for a numberofreasons. First, the penalty jury was instructed on murder, voluntary manslaughter, and involuntary manslaughter. These instructions clearly applied to the VonSeggern homicide evidence. (53B RT 6839.) In the face of these instructions, the jurors could reasonably infer that the evidence was 11] offered in aggravation as factor (b) and concerned the same conductthat wasalso offered as a prior conviction pursuantto factor (c). Furthermore, the involuntary manslaughter instruction (53B RT 6839) allowed the penalty jury to find appellant guilty of a lesser offense than the one of which he was convicted. Second, the penalty jury heard an overwhelming amount of evidence in aggravation which would have been presented regardless of whether the VonSeggern acts were deemed murder or manslaughter. There was evidence that appellant assaulted a past girlfriend, Pamela Martin Braden, as early as 1988. (46A RT 5705-5706.) There was evidencethat after killing VonSeggern in 1992, appellant had sex with—and gave some of VonSeggern’s clothes and jewelry to— Desiree, a young woman hepicked up at a motel. (46B RT 5802-5803, 5791; 47A 5852-5853.) There was evidence that appellant bound VonSeggern’s body with various cords from her own apartment and dumpedit in a ditch where it decomposed grotesquely. (46B RT 5765- 5769; 47A RT 5872-5875, 5844, 5859, 5882, 5885-5887.) There was evidence that appellant sold VonSeggern’scar after her killing, lied about her whereabouts, and forged her signature. (47A RT 5826-5827, 5877- 5880.) There was evidencethat appellant burglarized and then burnedhis own step-grandmotherin hertrailer (47B RT 5971, 5974, 5980; 48A RT 6056, 6067, 6073-6074; 49A RT 6208; 49B RT 6312; 6315), used her credit cards, debit cards, and cell phone after her death (48A RT 6016, 6018, 6021; 49A RT 6211, 6213-6217; 6226-6227), and gifted to Parenteau some of his step-grandmother’s jewelry after her death (48B RT 6133). There was evidence that appellant stole Salling’s wallet, purse, car, driver’s license, credit cards, and $13,600 worth ofjewelry (36A RT 4381, 4388-4392, 4395, 4398; 37A RT 4566-4567) from Salling after her death. 112 Appellant drove Parenteau aroundin Salling’s car (36B 4476-4477, 4485; 37A RT 4573), tried selling Salling’s jewelry for drug money (36B RT 4503; 37A RT 4578-4579, 4581-4582, 4593), used Salling’s money to purchaseclothes for himself and a faucet for Parenteau (36B RT 4476; 37A RT 4588-4589, 4591; 38B RT 4884), used Salling’s credit card to purchase gasoline (37A RT 4594; 38B RT 4877), and attempted to use Salling’s credit card to gamble (36B RT 4512-4515; 37A RT 4597; 38A RT 4782). This evidence painted a picture of a man who abuses women and treats them as disposable objects, to rob and kill. As the prosecutor argued at the penalty phase, whether the jury deemed VonSeggern’s killing to be a murderor an involuntary manslaughter, “it [did not] really matter for this analysis.... We can’t prove exactly how that crime occurred, but we can proveall sorts of things about what kind of person he is by the way he handled himself after the actual killing.” (53A RT 6733.) In sum, evidence presented in aggravation was especially compelling such that it was not reasonably possible the jury was influenced by the distinction of whether the VonSeggern killing was classified as a murder or manslaughter. VII. JURY INSTRUCTIONS ON MITIGATING AND AGGRAVATING FACTORSIN SECTION 190.3 AND APPLICATION OF THE SAME Dip NOT VIOLATE THE CONSTITUTION Appellant claims that the jury instructions on the mitigating and aggravating factors in section 190.3, and the jurors’ application of the factors rendered his death sentence capricious andarbitrary in violation of the federal constitution. (AOB 225-254.) The court instructed the jury on the sentencing factors listed in section 190.3 pursuant to CALJIC Nos. 8.85 and 8.88. (53 RT 6820-6822, 6858-6860.) Appellant claimsthat the statute, the implementing instructions, and the jurors’ application of the sentencing factors violate the narrowing requirement because they “make virtually 113 every murderer death-eligible.” (AOB 226.) Appellant acknowledgesthat this Court has consistently rejected this claim but urges the Court to reconsider. (AOB 227.) Appellant’s claim fails. A. Appellant Has Forfeited His Claim Appellant did not requestthe trial court modify the instructions now challenged on appeal. Thus, this claim is not preserved for this appeal. (People v. Carpenter (1997) 15 Cal.4th 312, 391, superseded by statute on other groundsas stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106.) B. Section 190.3, Subdivision (a) and CALJIC NO. 8.85 Adequately Narrow the Death-Eligible Class Appellant claims that becauseit is permissible to rely upon the circumstancesof the crime undersection 190.3, factor (a), therefore factor (a) and CALJIC No. 8.85 are overbroad. (AOB 228-237.) This claim has been repeatedly rejected by this Court and appellant provides no reason to revisit this holding. “California’s death penalty statute does not fail to narrow the class of offenders as is required by the Eighth Amendment, norhasthe statute been expanded ‘beyond consistency with’ the Fifth and Fourteenth Amendments.” (People v. Salcido (2008) 44 Cal.4th 93, 166; see also People v. Hoyos (2007) 41 Cal.4th 872, 926, overruled on another ground by People v. McKinnon (2011) 52 Cal.4th 610, 637-643; People v. Demetrulias (2006) 39 Cal.4th 1, 434.) The California Supreme Court has found that factor (a) “does not foster arbitrary and capricious penalty determinations” (People v. Bramit (2009) 46 Cal.4th 1221, 1248) and rejected the argumentthat section 190.3 or CALJIC No.8.85 “are unconstitutionally vague, arbitrary, or render the sentencing process unconstitutionally unreliable under the Eighth and 114 Fourteenth Amendments...” (People v. Moon (2005) 37 Cal.4th 1, 41-42; People v. Kipp (1998) 18 Cal.4th 349, 381.) “California’s death penalty statute ‘does not fail to perform constitutionally required narrowing function by virtue of the numberof special circumstancesit provides or the manner in which they have been construed.’” (People v. Beames (2007) 40 Cal.4th 907, 933.) Becausethe factors in section 190.3 do not perform a narrowing function, they are not subject to the Eighth Amendmentstandard used to define death-eligibility criteria. They violate the Eighth Amendmentonly if they are insufficiently specific or if they direct the jury to facts not relevant to the penalty evaluation. California’s factors suffer no such deficiencies. (People v. Thomas (2011) 52 Cal.4th 336, 365; People v. Lee (2011) 51 Cal.4th 620, 653; People v. Hartsch, supra, 49 Cal.4th at p. 516; People v. Whisenhunt(2008) 44 Cal.4th 174, 228; People v. Harris (2005) 37 Cal.4th 310, 365; People v. Hughes, supra, 27 Cal.4th at pp. 404-405; People v. Bacigalupo (1993) 6 Cal.4th 457, 478-479.) Similar claims have repeatedly been rejected by this Court as this Court has found that California’s death penalty law sufficiently narrowsthe class of death eligible defendants so that it is neither arbitrary nor capricious. (People v. Burgener, supra, 29 Cal.4th at p. 884; People v. Lewis (2001) 25 Cal.4th 610, 676.) Accordingly, this claim must fail. C. The Instruction on Section 190.3, Subdivision (b) and the Jurors’ Application Thereof Did Not Violate Appellant’s Constitutional Rights Appellant claimsthat section 190.3, subdivision (b), and CALJIC No. 8.87 violate appellant’s constitutional nghts by permitting the jury to sentence him to death by relying on evidence on whichit did not necessarily unanimously agree. (AOB 237-239.) Appellant further contends that the use of unadjudicated criminalactivity in aggravation 115 renders his death sentence unconstitutional. (AOB 239-240.) Appellant also claimsthat a failure to require a unanimousjury finding on the unadjudicated acts of violence denied him his right to a jury trial and requires reversal. (AOB 240-244.) Appellant argues that absent a unanimity requirement, the instructions on section 190.3, subdivision (b) allowed the jurors to impose the death penalty on him based on unreliable factual findings. (AOB 244-248.) This Court has consistently rejected such claims. There is no requirementthat a jury unanimously agree as to each instance of unadjudicated criminal activity before considering it. (People v. D’Arcy (2010) 48 Cal.4th 257, 308.) “The jury may properly consider unadjudicated criminal activity at the penalty phase and need not make a unanimousfinding on each instance of such activity. [Citations.]” (People v. Nelson, supra, 51 Cal.4th at p. 226.) The jury’s consideration of unadjudicated criminalactivity in the penalty phase is not unconstitutional, and the jury need not make a unanimousfinding the defendant was guilty of the unadjudicated crimes. (People v. Elliot (2005) 37 Cal.4th 453, 488; People v. Brown (2004) 33 Cal.4th 382, 402; People v. Lewis (2001) 26 Cal.4th 334, 395.) Appellant offers no reasons whythis Court should revisit its prior opinions. D. The Constitution Does Not Require the Jury to Make Written Findings Regarding the Aggravating Factors Appellant claimsthat his constitutional rights have been violated because CALJIC Nos.8.85 and 8.88 failed to require the jury to make “written or other specific findings about the aggravating factors they found and considered in imposing a death sentence.” (AOB 248.) Appellant again acknowledgesthat this Court has rejected such arguments but urgesit to reevaluate its reasons. (AOB 249.) 116 This Court has held that the Eighth and Fourteenth Amendments do not require the jury unanimously find the existence of aggravating factors, or make written findings regarding aggravating factors. (People v. Hoyos, supra, 41 Cal.4th at p. 926.) The jury is not required to make express findings on unadjudicated crimes. (People v. Fauber (1992) 2 Cal.4th 792, 848.) Appellant does not offer sufficient reasons to reevaluate these opinions. E. Section 190.3 and Implementing Instructions Do Not Violate Equal Protection Principles Appellant also contends that the absence of various procedural safeguardsin section 190.3 violates his right to equal protection because he was treated differently than non-capital defendants. (AOB 252-253.) This Court has repeatedly held that capital and non-capital defendants are not similarly situated and thus may be treated differently without violating equal protection principles. (People v. Hinton, supra, 37 Cal.4th at p. 912; People v. Smith (2005) 35 Cal.4th 334, 374; People v. Morrison (2004) 34 Cal.4th 698; People v. Brown, supra, 33 Cal.4th at p. 402; People v. Boyette (2002) 29 Cal.4th 381, 465-467; and People v. Allen (1986) 42 Cal.3d 1222, 1286-1288.) Accordingly, appellant’s equal protection claim is without merit. VIII. SECTION 190.3 AND IMPLEMENTING JURY INSTRUCTIONS ARE NOT UNCONSTITUTIONAL Appellant claims that section 190.3 and CALJIC Nos. 8.84-8.88 are unconstitutional because they fail to assign a burden of proof with respect to the jury’s penalty determination. (AOB 255-284.) Appellant complains that the CALJIC instructions do not require jury unanimity as to the existence of aggravating factors utilized by the jury as the basis for imposing a sentence of death, do not assign a burden of provingthatthe aggravating factors outweigh the mitigating factors, and that death is the 117 appropriate penalty. (AOB 255-256.) Appellant recognizes that this Court has consistently ruled that failure to require that a jury unanimously find aggravating circumstancestrue beyond a reasonable doubt, unanimously find beyond a reasonable doubt that aggravating circumstances outweigh mitigating circumstances, or unanimously find beyond a reasonable doubt that death is the appropriate penalty does not violate various constitutional protections. (AOB 257.) A. Section 190.3 and Instructions Are Not Constitutionally Defective for Failing to Assign the State the Burden of Proving Beyond a Reasonable Doubtthat an Aggravating Factor Exists, that the Aggravating Factors Outweigh the Mitigating Factors, and that Death is the Appropriate Penalty “Neither the federal Constitution nor section 520 of the Evidence Coderequiresthat the jury be instructed that the prosecution has the burden of proof with regard to the truth of aggravating circumstancesor the appropriatenessof the death penalty, and thetrial court is not required to explicitly tell the jury that neither party bears the burden ofproof.” (People v. Leonard (2007) 40 Cal.4th 1370, 1429.) “‘The death penalty law is not unconstitutional for failing to impose a burden of proof—whether beyond a reasonable doubt or by a preponderance of the evidence—asto the existence of aggravating circumstances, the greater weight of aggravating circumstances over mitigating circumstances, or the appropriateness of a 299death sentence.’” (People v. Hoyos, supra, 41 Cal.4th at p. 926; People v. Lewis & Oliver, supra, 39 Cal.4th at p. 1066.) The California death- penalty law which doesnot specify the burden of proof for the penalty phase, but does require a beyond-a-reasonable-doubt standard for proving special circumstances, and then requires the jury to consider and take into account all mitigating and aggravating circumstances in determining whether to imposethe death penalty, is constitutional. (People v. Leonard, 118 supra, 40 Cal.4th at p. 1429; People v. Frierson (1979) 25 Cal.3d 142, 180 [interpreting 1977 Law].) Appellant contends that Cunningham v. California (2007) 549 U.S. 270 compels the conclusion that any determination made by a penalty jury to arrive at a sentence of death must be found beyond a reasonable doubt. (AOB 258-259.) In Cunningham, the United States Supreme Court held California’s determinate sentencing law, by placing sentence-elevating fact-finding within the judge’s province, violated a defendant’ s nght to trial by jury under the Sixth and Fourteenth Amendments. (Cunningham v. California, supra, 549 U.S. at p. 274.) The United States Supreme Court reasonedthat its decisions in Apprendi v. New Jersey (2000) 530 U.S. 466, Ring v. Arizona (2002) 536 U.S. 584, Blakely v. Washington (2004) 542 U.S. 296, and United States v. Booker (2005) 543 U.S. 220, instruct that “the Federal Constitution’s jury-trial guarantee proscribes a sentencing schemethat allows a judge to impose a sentence abovethe statutory maximum basedona fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham v. California, supra, 549 US. at p. 275.) The United States Supreme Court clarified the relevant statutory maximum “‘is not the maximum sentence a judge may imposeafter finding additional facts, but the maximum he may impose without any additional findings.’” 303-304.) (Ibid., quoting Blakely v. Washington, supra, 542 U.S.at pp. However, this Court has rejected this claim: Finally, section 190.3 and the pattern instructions are not constitutionally defective for failing to assign the state the burden of proving beyond a reasonable doubt that an aggravating factor exists, that the aggravating factors outweigh the mitigating factors, and that death is the appropriate penalty. As defendant acknowledges, we have repeatedly rejected these arguments. [Citation.] The recent decisions of the United States Supreme Court interpreting the Sixth Amendment's jury trial 119 guarantee [Cunningham v. California (2007) 549 U.S. 270; United States v. Booker (2005) 543 U.S. 220; Blakely v. Washington (2004) 542 U.S. 296; Ring v. Arizona (2002) 536 U.S. 584; Apprendi v. New Jersey (2000) 530 U.S. 466] do not compela different result. [Citation.] (People v. Bramit, supra, 46 Cal.4th at p. 1250 & fn. 22.) In People v. Morrison, supra, 34 Cal.4th at p. 698, this Court specified “the jury need not make written findings or achieve unanimity as to specific aggravating circumstances, or find beyond a reasonable doubt that an aggravating circumstance is proved (except for other crimes), that aggravating circumstances outweigh mitigating circumstances,or that death is the appropriate penalty.” (/d. at p. 730.) This Court further specified the death penalty statute is not constitutionally infirm for failing to provide the jury with instructions regarding the burden of proof and standard of proof for finding aggravating and mitigating circumstances in reaching a penalty determination. (/d. at pp. 730-731.) The Court found that the death penalty statute withstood constitutional scrutiny. The statutory factor that renders a defendant found guilty of first degree murder eligible for the death penalty is the special circumstance. The special circumstance thus operates as the functional equivalent of an element of the greater offense of capital murder. The jury’s finding beyond a reasonable doubt of the truth of a special circumstance satisfies the requirement of the Sixth Amendment that a jury find facts that increase a penalty of a crime beyond the statutory minimum. (People v. Lewis, supra, 43 Cal.4th at p. 521.) 120 B. There Is No Constitutional Requirement that the Jury Be Instructed that It May Impose the Death Penalty Only If It Is Persuaded Beyond a Reasonable Doubt that the Aggravating Factors Outweigh the Mitigating Factors and Death Is the Appropriate Penalty Appellant again acknowledgesthat this Court has previously rejected such claims, but urges the Court to reconsider and hold that the jury must be instructed that it may only impose a sentence of death if it finds beyond a reasonable doubt that aggravating factors outweigh the mitigating factors. (AOB 265-272.) Wedisagree. A capital sentencer need not be instructed how to weigh any particular fact in the capital sentencing decision. The sentencer may be given unbridled discretion in determining whether the death penalty should be imposedafter it has found that the defendant is a memberofthe class madeeligible for that penalty. (People v. Sanders, supra, 11 Cal.4th at p. 564.) This Court has repeatedly held that the jury need not find the death penalty appropriate beyond a reasonable doubtor that the death penalty is appropriate. (People v. Bacon (2010) 50 Cal.4th 1082, 1129; People v. Burney (2009) 47 Cal.4th 203, 268; People v. Carrington (2009) 47 Cal.4th 145, 199-200; People v. Stanley (2006) 39 Cal.4th 913, 963.) Furthermore, “[n]Jeither the federal nor the state Constitution requires that the penalty phase jury make unanimousfindings concerning the particular aggravating circumstances,find all aggravating factors beyond a reasonable doubt, or find beyond a reasonable doubtthat the aggravating factors outweigh the mitigating factors.” (People v. Jennings (2010) 50 Cal.4th 616, 689.) There is no reason for this Court to revisit these decisions. 121 C. The State Is Not Constitutionally Compelled to Bear a Specified Burden of Persuasion Appellant claims that the federal constitution requires the state to bear someburden of persuasion at the penalty phase. (AOB 272-276.) Appellant concedes that this Court has rejected such a claim, holding “that a burden of persuasion at the penalty phase is inappropriate given the normative nature of the determinations to be made.” (AOB 272,citing People v. Gonzales (2011) 51 Cal.4th 894, 956; People v. Mendoza (2007) 42 Cal.4th 686, 711.) Appellant urges this Court to reconsider. This Court has long considered that “[u]nlike the guilt determination, ‘the sentencing function is inherently moral and normative, not factual’ [citation] and, hence, not susceptible to a burden-of-proof quantification.” (People v. Hawthorne, supra, 4 Cal.4th at p. 79; see also Peoplev. Burgener (2003) 29 Cal.4th 833, 884-885; People v. Anderson (2001) 25 Cal.4th 543, 601; People v. Daniels, supra, 52 Cal.3d at p. 890.) The Court has also repeatedly rejected any claims that focus on a burden of proof in the penalty phase. (People v. Welch, supra, 20 Cal.4th at pp. 767-768; People v. Ochoa (1998) 19 Cal.4th 353, 479; People v. Snow (2003) 30 Cal.4th 43, 126; People v. Box (2000) 23 Cal.4th 1153, 1216; People v. Carpenter, supra, 15 Cal.4th at pp. 417-418; People v. Dennis, supra, 17 Cal.4th at p. 552; People v. Holt (1997) 15 Cal.4th 619, 683- 684 [“the jury need not be persuaded beyond a reasonable doubtthat death is the appropriate penalty’’].) Appellant fails to offer any valid reason whythis Court should vary from its past decisions. D. A Jury Unanimity Instruction on Aggravating Factors is Not Constitutionally Compelled Appellant claimsthat the instructions violated his constitutional nghts because the jury wasnotinstructed that its findings on aggravating circumstances needed to be unanimous. (AOB 276-282.) Appellant 122 recognizes that this Court has held that the penalty jury is not constitutionally required to reach unanimous agreement on aggravating factors. (AOB 277, citing People v. Taylor (1990) 52 Cal.3d 719, 749.) He nevertheless asserts that the absence of a unanimity requirement1s inconsistent with his constitutional protections. (AOB 277-278.) Unanimous agreement beyond a reasonable doubt that aggravating circumstances outweigh mitigating is not required. (People v. Bacon, supra, 50 Cal.4th at p. 1129; People v. Burney, supra, 47 Cal.4th at p. 268; People v. Alcala (1992) 4 Cal.4th 742, 809.) This Court has consistently held that there is no requirement under state or federal law that the jury unanimously agree on the aggravating circumstances that support the death penalty, since ageravating circumstancesare not elements of an offense. (People v. Gonzales, supra, 51 Cal.4th at p. 956; People v. Jackson (2009) 45 Cal.4th 662, 701.) There is no requirementthat a jury unanimously agree as to each instance of unadjudicated criminalactivity before considering it. (People v. D’Arcy, supra, 48 Cal.4th at p. 308.) E. The Penalty Jury Need Not Be Instructed on Presumption of Life Appellant claims that the penalty jury should have been instructed on the presumption oflife. (AOB 282-284.) There is no requirementthat the jury be instructed on a presumption oflife in the penalty phase of a capital trial. (People v. Gonzales, supra, 51 Cal.4th at p. 956.) This claim is also meritless. Appellant recognizes that the Court has rejected such claims but again urges that the claim should be reevaluated. (AOB 283.) As this Court has explained, [N]either death norlife is presumptively appropriate or inappropriate under any set of circumstances, but in all cases the determination of the appropriate penalty remains a question for each individualjuror. (People v. Samayoa (1997) 15 Cal.4th 795, 853.) 123 Appellant offers no valid reason why this Court should revisit this issue. Accordingly, this claim too should be denied. IX. THE USE OF CALJIC No.8.88 DID NOT VIOLATE APPELLANT’S CONSTITUTIONAL RIGHTS Appellant claims that the use of CALJIC No.8.88 to define the scope of the jury’s sentencing discretion and the nature ofthe deliberative process violated his rights to a fair trial, due process, equal protection, and reliable determination of penalty. (AOB 285-298.) Appellant recognizes that this Court has consistently upheld the use of CALJIC No.8.88, but contends that this Court’s reasoning “is unsound and should be evaluated.” (AOB 285-286.) Appellant’s claim fails. CALJIC No.8.88 is constitutionally sound. A. CALJIC No. 8.88 Provides Adequate GuidanceandIs Not Vague or Ambiguous CALJIC No.8.88 instructs the jury “to determine which of the two penalties, death or imprisonmentin the state prison for life without possibility of parole, shall be imposed on . . . defendant.” “CALJIC No. 8.88 explains to the jury how it should arrive at the penalty determination.” (People v. Perry (2006) 38 Cal.4th 302, 320.) CALJIC No. 8.88 “accurately describes how jurors are to weigh the aggravating and mitigating factors.” (People v. Elliot, supra, 37 Cal.4th at p. 488.) This Court has held that CALJIC No. 8.88 does not violate the Fifth, Sixth, Eighth, or Fourteenth Amendments. (People v. Moon, supra, 37 Cal.4th at pp. 41-42.) “CALJIC No. 8.88 properly instructs the jury on its sentencing discretion and the nature ofits deliberative process,” and there is no need to elaborate how the jury should consider any particular type of penalty-phase evidence. (People v. Valencia, supra, 43 Cal.4th at p. 310.) 124 Death is considered to be a more severe punishmentthan life without possibility of parole, so the trial court does noterr in instructing the jury with CALJIC No. 8.88 to the effect that each juror must be persuaded that “the aggravating circumstancesare so substantial in comparison with mitigating circumstancesthat it warrants death instead oflife without parole.” (People v. Harris, supra, 37 Cal.4th at p. 361.) The requirement that the jury find the aggravating circumstances“so substantial” in comparison with the mitigating circumstancesthat it “warrants death” is not vague or directionless. (People v. Chatman (2006) 38 Cal.4th 344, 409; People v. Arias (1996) 13 Cal.4th 92, 170.) Appellant claims that CALJIC No. 8.88 is impermissibly vague and ambiguous becauseit permits the death penalty to be imposed wheneverthe jurors are “‘persuaded that the aggravating circumstancesare so substantial in comparison with the mitigating circumstancesthat it warrants death instead oflife without parole.’” (AOB 286.) He argues that the phrase “‘so substantial’” “creates a standard that is vague, directionless, and impossible to quantify.” (AOB 286.) This claim has been repeatedly rejected by this Court and appellant provides no reasonto revisit this holding. (See,e.g., People v. McKinnon, supra, 52 Cal.4th 610; People v. Rogers (2009) 46 Cal.4th 1136, 1179; People v. Parson (2008) 44 Cal.4th 332, 371.) B. CALJIC No. 8.88 Is Not Defective for Not Informing the Jurors that the Central Determination Is Whether Death Penalty Is the Appropriate Punishment, Not Merely an Authorized One Appellant complains that “CALJIC No. 8.88 failed to inform the jurors that the central determination is whetherthe death penalty is the appropriate punishment, not simply an authorized penalty.” (AOB 289.) This Court has rejected this claim, finding that CALJIC No. 8.88is not defective in requiring the jury to determine whether death is “warranted” as opposed to “appropriate.” (People v. Rogers, supra, 46 125 Cal.4th at p. 1179; People v. Watson (2008) 43 Cal.4th 652, 702; People v. Moon,supra, 37 Cal.4th at p. 43, citing People v. Boyette, supra, 29 Cal.4th at p. 465.) C. The Court Was Not Required to Instruct the Jury that It Was Required to Vote for Life Without Possibility of Parole if Mitigation Outweighed Aggravation Appellant complains that “CALJIC No.8.88 failed to inform the jurors that if they determined that mitigation outweighed aggravation, they were required to return a sentenceoflife without the possibility of parole.” (AOB 293.) CALIJIC No.8.88 is “not unconstitutional for failing to inform the jury there is a presumptionoflife.” (People v. Moon, supra, 37 Cal.4th at p. 43, citing People v. Maury (2003) 30 Cal.4th 342, 440.) Conversely, failure to instruct the jury thatit “shall” impose life without possibility of parole if mitigating evidence outweighs aggravating evidence does not create a presumption favoring death. (People v. Medina (1995) 11 Cal.4th 694, 781; People v. Wader, supra, 5 Cal.4th at p. 662.) As appellant recognizes, in People v. Duncan (1991) 53 Cal.3d 955, 978, this Court noted that CALJIC 8.88 “clearly stated that the death penalty could be imposedonly if the jury found that the aggravating circumstances outweighed mitigating. There was no needto additionally advise the jury of the converse(1.e., that if mitigating circumstances outweighed aggravating, then life without parole was the appropriate penalty).” (See AOB 294-295.) This Court reaffirmed this decision in People v. Hughes, supra, 27 Cal.4th at 357-358. Appellant cites a numberof older cases to support his contention, but none of them stand for the proposition that the jurors should have been informedthat if they determined that mitigation outweighed aggravation, they were required to return a sentenceoflife without the possibility of parole. (AOB 295.) 126 CALJIC No. 8.88 is “not unconstitutional for failing to inform the jury thatif it finds the circumstances in mitigation outweigh those in aggravation,it is required to impose a sentence oflife without possibility of parole.” (People v. Rogers, supra, 46 Cal.4th at p. 1179; People v. Moon, supra, 37 Cal.4th at p. 42, citing People v. Dennis, supra, 17 Cal.4that p. 552.) X. APPELLANT’S DEATH SENTENCE DOES NOT VIOLATE INTERNATIONAL LAW OR THE EIGHTH AMENDMENTOF THE UNITED STATES CONSTITUTION Appellant contends that his death sentence under California’s death penalty statute violates both the Eighth and Fourteenth Amendments to the U.S. Constitution as well as international law. (AOB 299-303.) We disagree. California’s death-penalty law does not violate the International Covenantof Civil and Political Rights which prohibits the “arbitrary” deprivation of life and bars “cruel, inhumanor degrading treatment or punishment.” The covenantspecifically permits the use of the death penalty “if imposed only for the most serious crimes in accordance with the law in force at the time of the commission ofthe crime.” (Art. VI, § 2.) Whenthe United States ratified the treaty, it specifically reserved the right to impose the death penalty on any person, except a pregnant woman,duly convicted under the laws permitting imposition of the death penalty. (See 138 Cong. Rec. S-4718-01, S4783 (1992); People v. Mungia (2008) 44 Cal.4th 1101, 1143; People v. Perry, supra, 38 Cal.4th at p. 322.) The death penalty as applied in California is not rendered unconstitutional through operation of international law andtreaties. (People v. Nelson, supra, 51 Cal.4th at p. 227; People v. Mills (2010) 48 Cal.4th 158, 215.) California’s death penalty law does not violate international law, such as the International Covenant on Civil andPolitical 127 Rights, or the American Declaration of the Rights and Duties of Man. (People v. Gonzales, supra, 51 Cal.4th at p. 958.) Nor do international normsrequire the application of the death penalty to only the most extraordinary crimes. (People v. Blacksher (2011) 52 Cal.4th 769, 849.) California’s death penalty does not violate international law,as international law doesnot prohibit a sentence of death rendered in accordance with state and federal constitutional and statutory requirements. (People v. Hawthorne (2009) 46 Cal.4th 67, 104; People v. Lewis, supra, 43 Cal.4th at p. 539; People v. Hoyos, supra, 41 Cal.4th at p. 925.) This Court has repeatedly that a “[d]efendant’s death sentence violates neither international law norhis rights under the Eighth and Fourteenth Amendments to the federal Constitution, as no authority ‘prohibit[s] a sentence of death rendered in accordance with state and federal 295constitutional and statutory requirements’” and appellant provides no reasonto revisit this holding. (People v. McKinnon, supra, 52 Cal.4th at pp. 670-671, citing People v. Hillhouse, supra, 27 Cal.4th at p. 511.) XI. THERE IS NO CUMULATIVE ERROR Appellant claims that the cumulative effect of the alleged errors requires reversal. (AOB 304-308.) This claim is meritless. As noted supra, the trial court did not commit any error. Therefore, appellant could not have been prejudiced by cumulative error. Moreover, assuming arguendo that multiple errors occurred, appellant fails to explain how, under the circumstancesofthis case, such errors, though individually harmless, are collectively prejudicial. The Court should therefore reject this conclusory assertion of cumulativeerror. Appellant was “entitled to a fair trial but not a perfect one.” (Lutwak v. United States (1952) 344 U.S. 604, 619-620; People v. Miranda (1987) 44 Cal.3d 57, 123, overruled on another ground in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.) When a defendant invokes the 128 cumulative-prejudice doctrine, “the litmus test is whether defendant received due process anda fair trial.” (People v. Kronemyer (1987) 189 Cal.App.3d 314, 349.) Appellate courts review claims of cumulative prejudice by assessing the cumulative effect of any errors to see if “it is reasonably probable that the jury would not have convicted appellant of the charged offenses.” (People v. Cardenas (1982) 31 Cal.3d 897, 907.) Applying that analysis to the instant case, appellant’s contention should be rejected. Where none ofthe claimed errors actually constitute individual errors, there is no prejudice to cumulate. (People v. Beeler (1995) 9 Cal.4th 953, 994.) Since appellant’s claims of evidentiary errorall lack merit, they could not—separately or together—infringe on appellant’s state or federal constitutional, statutory, or other legal rights. (People v. Wrest (1992) 3 Cal.4th 1088, 111 1.) Moreover, review of the record showsthat appellant received a fair and untainted trial. The Constitution requires no more. Whether viewing all appellant’s allegations of error individually or cumulatively,it is not reasonably probable that absent the alleged errors, appellant would have received a more favorable verdict. (See People v. Wrest, supra, 3 Cal.4th at p. 1111.) 129 CONCLUSION Respondentrespectfully requests that the judgment beaffirmed. Dated: May 28, 2013 SF2000XS0005 Respectfully submitted, KAMALA D. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General RONALDS. MATTHIAS Senior Assistant Attorney General DONNA M. PROVENZANO Deputy Attorney General SHA A. DABIZA Deputy Attorney General Attorneysfor Respondent 130 CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S BRIEFusesa 13 point Times New Romanfont and contains 40,163 words. Dated: May 28, 2013 KAMALAD. HARRIS Attorney General of California Deputy Attorney General Attorneysfor Respondent DECLARATION OF SERVICE BY U.S. MAIL Case Name: People v. Johnson No.: S$093235 I declare: I am employed in the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplacedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On May 28, 2013, I served the attached RESPONDENT’SBRIEFbyplacing a true copy thereof enclosed in a sealed envelopein the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: William D. Farber County of Lake Attorney at Law Lakeport Division 369-B Third Street, #164 Superior Court of California San Rafael, CA 94901 255 North Forbes Street, 4th Floor (2 copies) Lakeport, CA 95453 California Appellate Project (SF) The Honorable Donald A. Anderson 101 SecondStreet, Suite 600 ‘District Attorney San Francisco, CA 94105-3647 Lake County District Attorney's Office 255 N. Forbes Street Lakeport, CA 95453 I declare under penalty of perjury under the laws of the State of California the foregoingis true and correct and that this declaration was executed on May 28, 2013, at San Francisco, California. Tan Nguyen ShutCfLTYCo — SDeclarant 1gyature/ SF2000XS0005 20696941 .doc