PEOPLE v. HARDY

Respondent’s Brief

Cal.October 30, 2013

SUPREME COURT COPY COPY Ju the Supreme Court of the State of Caltfornta PEOPLE OF THE STATE OF CAPITAL CASE CALIFORNIA, Case No. $113421 Plaintiff and Respondent, SUPREME COURT oo FILED WARRENJUSTIN HARDY, OCT 3.0 2013 Defendant and Appellant. Frank A. McGuire Clerk Los Angeles County Superior Court Case No. NA039436 Deputy The Honorable John David Lord, Judge RESPONDENT’S BRIEF KAMALAD. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General LANCE E. WINTERS Senior Assistant Attorney General KEITH H. BORJON Supervising Deputy Attorney General JOSEPH P. LEE Deputy Attorney General MICHAELJ. WISE Deputy Attorney General State Bar No. 185026 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 897-2381 Fax: (213) 897-6496 Email: DocketingLAAWT@doj.ca.gov Wise@doj.ca.gov Attorneysfor Plaintiffand Respondent DEATH PENALTY TABLE OF CONTENTS Page STATEMENT OF THE CASEuiceccseceseeseteseneceneesaeeeneeeeeessrecenesennessaresaees l STATEMENT OF FACTSoccccecessesseesereeearsetecenesenesccneesseeseeseneeseaeeeaees 5 I. THE GUILT PHASE.....sccseccecceseeeeneeeseeerseeseensessestessnesneeestentens 5 A, Prosecution Evidence.............. vesceeeceeteneesenseeeeentaneesens 5 l. The Defendants And The Victim ...............006 5 2. The Discovery Of The Crime Scene................ 6 3, The Police Investigation...........ceccesseeesseereerers 6 4. Appellant’s Statements...seeteeeeeee 12 5. The Autopsy ......cccccccscesssccessneeetieecsseetssnsereees 21 6. The DNA Evidence ........eeeeececssecettecesteereeees 28 7. The Prior Conviction Allegation ..............0 29 B. — Defense EVIdence ......cecececceceseeseeeeesesstsessnseeeneess 30 I]. THE PENALTY PHASE .....scececcecscscseseeseeeteneesessetseseseeessenssseeeeaes 30 A. Prosecution Evidenceoccceecesecteeeseeeeeeersees seeenees 30 l. The 1996 Prior Robbery ......... ce eeeeeeeeesseereeees 30 2. The 2006 Injury To Appellant’s Son............. 32 3, The Events Just Prior To Penny’s Murder 200.0... ce eecccccceceeseececeeeneseneeeeceesensaeeeeeeeaaes 36 4, The Impact Of The Murder On Penny’s Son Ted Keprta.......ccccscesesssscecssneceeseeeessenneees 37 B. Defense Evidence .00...... ce eeccceeesecceeeseereeetteetetstneeestaees 38 I, Appellant’s Family Life And History............ 38 2 Appellant’s Work And Church Activities......44 3. Forensic Expert Testimony..........0 cc ceeeeeeeee 46 4 Appellant’s Cooperation During A 1997 Murder Prosecution ......ccceesecsescsssersereeneeeneeens 56 C, Prosecution Rebuttal... cccccsecesseeseeseeesteessseenseeees 58 ARGUMENTsssssssstessssersstesssscssseeestesesierensresennesencesseseeteeuneeseeeee 61 Il. IL. TABLE OF CONTENTS (continued) Page THE TRIAL COURT PROPERLY EXCUSED TWO PROSPECTIVE JURORS FOR CAUSE BECAUSE THEIR VIEWS ON THE DEATH PENALTY SUBSTANTIALLY INTERFERED WITH THEIR ABILITY TO FUNCTION AS JURORS woe cecsccceseecsessessecsecsseeeesnecsseseseseeneesecseesseeteesneeseeaeraes 61 A. Applicable Law .......ccccccccccseccsssessteeceseeeeeteesssreeesseeses 62 B. The Trial Court Properly Excused Prospective Juror D.D. For Cause... ceecccessecsssneeeeesseeesssneeseeens 63 C. The Trial Court Properly Excused Prospective Juror K.F. For Cause wc. cecceccsceecsssneeeessseeeseseeteneens 83 D. In Any Event, Any Error Was Harmless.............0.4.. 99 THE APPLICATION OF THE SUBSTANTIAL IMPAIRMENT STANDARD TO DETERMINE THE DEATH- QUALIFICATION OF PROSPECTIVE JURORS DID NOT VIOLATE APPELLANT’S FIFTH, SIXTH, EIGHTH OR FOURTEENTH AMENDMENTRIGHTS1.0... .escceseseeeesseeesseeeeeeees 101 THE TRIAL COURT PROPERLY DENIED APPELLANT’S WHEELER/BATSON MOTIONS....cccsseccsceeeeceeecceteeeeensasseeeaannanes 102 A. Relevant Proceedings ...........eeseeeeeeesnnertneceteeeesers 103 1. F.G. (Prospective Juror Number 2041)........ 105 2 D.B. (Prospective Juror Number 3747)........ 108 3. M.H.(Prospective Juror Number 4826)....... 113 4 The Wheeler/Batson Motion .........::cccceeeees 115 a. F.G.(Prospective Juror Number QOAL). oc cccecsseesseessceecteeessscseessesesteeeenees 116 db, D.B. (Prospective Juror Number BTA). cccccccssccessscsseesnseesssesereessneeseeees 117 C. M.H.(Prospective Juror Number A826). occccccccerecssnceeeeetsaneeteseecteneeenetenees 118 d. The Trial Court’s Ruling... 119 B. General Principles .........cccccccecseeecesssteeeeesseeeersenees 120 il IV. EB. F, TABLE OF CONTENTS (continued) Page Appellant Failed To Show A Prima Facie Case Of Discrimination As To F.G., D.B., And M.H...... 12] 1. E.G. veicsecssesececcecesvevveccssseussseteasenvensensVeveceeenavane 123 2. D.By voceeeccceccccccceccuseesoccecacssececeesausrsceeesseseneues 126 3, MLHan ece ccc cccccccccccccccececusauneavsseseeessseseveetevenes 128 Even If The Trial Court Should Have Found A Prima Facie Case, Appellant’s Contention Fails Because The Prosecutor’s Stated Reasons Were Race Neutral .........ccceeccececccceesssecceceseesecessuenavensecseees 130 1. |©131 2. DB viccccceccecccccccceueeuseecccsseusvececcsacuessesetessesens 134 3, MHeeeecccceccsessseseecesecnenesovcseceucecececsecesuaennes 135 Comparative Juror Analysis........deceuaeesanseesteessseeseaes 138 Prejudice wo... eee eeeeeeeneeeeedecetesneeeesseneeecectatersnaeeeennaes 145 THE TRIAL COURT PROPERLY EXERCISED ITS DISCRETION TO EXCLUDE THE VICTIM’S TOXICOLOGY REPORT; IN ANY EVENT, ANY ERROR WAS HARMLESS.... 147 A. B. C. Relevant ProceedingS 00.0...148 The Victim’s Toxicology Report Was Properly Excluded vo... ececsceesncesenneeerecseeseeesereecenaeeeeeeeesses 149 Any Error Was Harmless .0...... ccc eesesceesetteeeeseteees 153 APPELLANT HAS FAILED TO DEMONSTRATE THAT EITHER HIS FEDERAL OR STATE CONSTITUTIONAL RIGHTS WERE VIOLATED BY THE TESTIMONY OF THE DEPUTY MEDICAL EXAMINER; IN ANY EVENT, ANY ERROR WAS HARMLESS.......ccccsceeseseeeceteessneenteesneeseesneseaees 157 A. Relevant Proceedings 00... cecceccesseeseeseseeseeesetenes 157 B. Dr. Djabourian’s Testimony Did Not Constitute Testimonial Hearsay And His Testimony Did Not Violate Appellant’s Federal Or State Constitutional Rights...eee eeeseeceeseeeeeeeeeereneees 159 ill VI. VII. VIII. IX, TABLE OF CONTENTS (continued) Page C. Appellant Could Not Possibly Have Been Prejudiced By Any Error in Admitting One Of TwoSplinters Identified In The Autopsy REPOLt. oo eeeceeeceeeseesssnecscseeeenecesseeseeeersaeessereesenseeeeaes 164 THE TRUE FINDINGS AS TO THE PENAL CODE SECTION 190.2, SUBDIVISION (a)(17), ALLEGATIONS AND THE JUDGMENT OF DEATH SHOULD BE AFFIRMED BECAUSE APPELLANT COMMITTED EACH OF THE SPECIAL CIRCUMSTANCEFELONIES FOR AN INDEPENDENT FELONIOUS PURPOSE... csssscessenseeneeeeseentens 166 A. Relevant Proceedings ...........cecccececessssseseseesseesseetens 166 B. General Legal Principles ........cecceesseseseceesteeeeteeeres 167 C. Appellant Committed Each OfThe Special Circumstance Felonies For An Independent Felonious Purpose ..0......::cccceecsceesneeeeteeetnseeesneeeesarens 169 D. PLejJUCICE 00... ee eeeccceeneceseeeeceseneeeeseeeeeesneeeseneneeeens 175 OVERWHELMING EVIDENCE SUPPORTED APPELLANT’S ROBBERY CONVICTION AND THE ROBBERY SPECIAL CIRCUMSTANCEFINDING wu... ecccccccccccssesececeececnaeesncccceuensussvess 176 THE TRIAL COURT PROPERLY INSTRUCTED THE JURY ON FELONY MURDER;IN ANY EVENT, ANY ERROR WAS HARMLESS... eseececessesseeseeneeceeceneesseessueeeneeeseeenseeens 180 A. Relevant Proceedings 0.0.0... eeesceceeeseeesesteceeerseeeres 180 B. General Legal Principles ........cceeeseeseceeeneeeeeneeteneee 181 C, The Trial Court Properly Instructed The Jury Pursuant To CALJIC No, 8.21 ceeeeeeeesnreeeeereees 182 D. Appellant Could Not Have Been Prejudiced By ANY EQrOreeeeee eeceenceererneeseeseateneesteeeseeseeeeenens 184 THE TRIAL COURT INSTRUCTED THE JURY WITH THE CORRECT DEFINITION OF AIDING AND ABETTING LIABILITY; IN ANY EVENT, ANY ERROR WAS TIARMLESS00... cccceccccccccccecccececccceccccessececcsesuuseueueetausuaaasseesetes 186 iV XI. XII. w TABLE OF CONTENTS (continued) Page General Legal Principles .........cceceeeseeseeeneeeneeeenees 186 The Trial Court Instructed The Jury With The Correct Definition OfAiding And Abetting Liability oo ei eeesseececsscnesesecneesseessecaecsaseeeeeneeutens 189 Appellant Could Not Have Been Prejudiced By Any Error With Respect To The Definition Of Aiding And Abetting Liability ....0.......cceeeeeeeeeee 193 THE TRIAL COURT PROPERLY INSTRUCTED THE JURY ON FIRST DEGREE MURDER, AND THE VERDICT FORM REFLECTED THE CORRECT FINDINGS OF FACT REQUIRED FOR FIRST DEGREE MURDER; IN ANY EVENT, ANY ERROR WAS HARMLESS......:ceeeseesestetereeseneees 195 A. Relevant Background Proceeding$S...........ccceseeeees 195 B. General Legal Principles 0.0.0... eee eceseeeeeeeeeeensees 197 C. The Trial Court Properly Instructed The Jury D. On First Degree Murder ..0........cccceccsccessceceseesseeeeees 198 Appellant Could Not Have Been Prejudiced By | Any Error With Respect To The Definition Of First Degree Murder Or With Respect To The Structure Of The Verdict Form oo... eeeeeeeeeeerene 202 THE TRIAL COURT PROPERLY INSTRUCTED THE JURY ON AIDING AND ABETTING LIABILITY AND TORTURE; IN ANY EVENT, ANY ERROR WAS HARMLESS..........00000000+ 204 A. Relevant Law And Background Proceedingg.......... 205 B. The Trial Court Properly Instructed The Jury On Aiding And Abetting Liability And Torture.....209 C, Appellant Could Not Have Been Prejudiced By Any Error With Respect To The Aiding And Abetting Or Torture Instructions .............ccceeeeeees 212 THE TRIAL COURT IMPROPERLY INSTRUCTED ON TORTURE AS A PREDICATE FELONY FOR FELONY MURDER, BUT THE ERROR WAS HARMLESG.........000:ss0000 215 XIII. XIV. XV. XVI. TABLE OF CONTENTS (continued) Page THE TRIAL COURT WAS NOT REQUIRED TO INSTRUCT ON THE LESSER-INCLUDED OFFENSE OF THEFT; IN ANY EVENT, ANY ERROR WAS HARMLESS. Q.......ceceeseteneeeees 217 A. Relevant Background ProceedingS............cccceseees 218 B. General Legal Principles 0.0... eeseeseeneeeteeeees 219 C, The Trial Court Was Not Required To Instruct Sua Sponte On The Lesser Included Offense Of Theft; In Any Event, Appellant Could Not Have Been Prejudiced oo... ceecccceccecscesseseeeseeseseeessneeeeneees 220 THE TRIAL COURT PROPERLY INSTRUCTED THE JURY ON HEAT OF PASSION AND PROVOCATION; IN ANY EVENT, ANY ERROR WAS HARMLESS.......c:sceceteeeeerressserees 225 A. Relevant Background Proceedings And General Legal Principles .........cccceecceececeeetrecseeeeeteeseeeneeeaees 225 B. The Trial Court Properly Instructed The Jury On Heat Of Passion And Provocation; In Any Event, Appellant Did Not Suffer Prejudice As The Result Of Amy Error... cceeeecceesseeeteesteeeens 226 THE TRIAL COURT DID NOT INSTRUCT THE JURY WITH AN ERRONEOUS DEFINITION OF ASPORTATION;IN ANY EVENT, ANY ERROR WAS HARMLESS..........:.:00000se0ees 230 A. Relevant Background Proceedings And General Legal Principles 0.0... ..ceeeeccseecssneceeseeneeeetseerersaeeeees 230 B. The Trial Court Properly Instructed The Jury On The Asportation Required For Kidnapping For Rape; In Any Event, Appellant Did Not Suffer Prejudice As The Result Of Any Error........ 236 The Trial Court Did Not Impermissibly Favor The Prosecution By Giving Instructions Which Used The Term “Stake” Rather Than “Stick;” In Any Event, Any Error Was Harmless ........cccccecsceceeneeceeeeeeneeeesneeenesenseeeenaees 241 vi B. TABLE OF CONTENTS (continued) Page Appellant’s Contention Is Forfeited; In Any Event, The Trial Court Properly Instructed The Jury Using The Term “Stake” Rather Than “SUCK? oo eeceececeseceseeeeeeteeeeneesressneseaneceaeseaeessetenneseaes 241 Any Error Was Harmless...........ccccccccsseeeeestreesesnees 242 XVII. AGGRAVATING EVIDENCE REGARDING APPELLANT’S INVOLVEMENTIN A GANG-RELATED FIGHT AND SHOW OF FORCE WAS PROPERLY ADMITTED IN THE PENALTY PHASE; IN ANY EVENT ANY ERROR WAS HARMLESSou. ccccccscesesssscecsccseesseeecccesssstecessessnaneeceeesssteseseeeees 244 A. B. C. Relevant Proceedings ..........ccceeseeceeesereeeeeneresenneeees 244 General Legal Principles 0.000... eeseeseeeeeeeesteeeeeneees 251 The Trial Court Properly Admitted Relevant Evidence In Aggravation.....cccccccssseererrenees253 XVUI. THE TRIAL COURT DID NOT IMPROPERLY PRECLUDE THE CROSS-EXAMINATION OF A PROSECUTION WITNESS; IN ANY EVENT, ANY ERROR WAS . HARMLESS........cccseecesscceececcceeeececcecseececeseeeueaeaesnaaaanaaaaagananes 258 A. B. C. D. Relevant Proceedings .........c:ceecceecccceteceenetentesenetens 258 General Legal Principles 00.0... cece eceseceneeetereeeneeeees 261 The Trial Court Properly Excluded Irrelevant AndSpeculative Testimony Regarding The Result Of Any Investigation By The Department Of Children’s Services .........eee261 Any Error Was Harmless.0.....0.cccceccsseeeseeeecressneeeees 265 XIX. THE PROSECUTOR DID NOT USE INCONSISTENT THEORIES AT THE PENALTY PHASES OF THE SEPARATE TRIALS OF APPELLANT AND SEVERED CODEFENDANT KEVIN PEARSON; HOWEVER,THIS CLAIM IS NOT PROPERLY BEFORE THIS COURT BECAUSE IT RELIES ENTIRELY ON EVIDENCE OUTSIDE THE RECORD uo. ceeccceeceeseserecnssseeeetessessecietasersesscneseetiesarenees267 A. Relevant Proceedings...........ccceeeecessecetteeeeseeeareees 267 Vii XX. XX. TABLE OF CONTENTS. (continued) Page The Prosecutor Did Not Use Inconsistent Theories At The Penalty Phases Of The Separate Trials OfAppellant And Codefendant Pearson; However, This Claim Is Not Properly Before This Court Because It Relies Entirely On Evidence Outside The Record ............eeeeeeeee 268 THERE WAS NO CUMULATIVEERROR.........ccssecccucececcueseees 271 CALIFORNIA’S DEATH PENALTY STATUTEIS CONSTITUTIONAL AND FULLY CONGRUENT WITH THE STATE AND FEDERAL CONSTITUTIONS.........cc:sscssceeseeteeseees 271 A. B. The California Death Penalty Statute Is Not Impermissibly Broad ........cseesessessseesteeenseeteeteeeens 272 The Categories Of Special Circumstances Described In Section 190.2 Effectively And Meaningfully Narrow The Class OfFirst Degree Murderers Who May Receive The Death Penalty 00... ceecccssssceeeecensteeeesecsssneeeesens 273 Section 190.3, Subdivision (a), As Applied Does Not Allow For Arbitrary And Capricious Imposition Of Death 0... eceeeseeeeessneeeeeeseeeeees 274 CALJIC No. 8.88’s Use Of “So Substantial” Language To Describe Aggravating Circumstances Warranting A Verdict Of Death Is Not Impermissibly Vague..............:ccccccseeeseesees 274 The Use Of Restrictive Adjectives In Mitigating Factors [s Proper........cccceecesscseceeesssteeeeececsesnareseeeees 275 The Trial Court Was Not Required To Instruct That Statutory Mitigating Factors Were Relevant Solely As Potential Mitigators ............ 276 The Jury Is Not Required To Find Beyond A Reasonable Doubt That Aggravating Factors Exist, That They Outweigh The Mitigating Factors, Or That Death Is The Appropriate SENTENCE... ce eccccecsceecceeneeeeensneeeesenenesevaneeseestneeenteeenes 276 vill TABLE OF CONTENTS (continued) Page H. The Jury Is Not Required To Unanimously Agree On Aggravating Factors........cecceescceeeteeeees 278 I. The Trial Court Does Not Have The Duty To Instruct On Any Burden OfProof At The Pernalty Phase........cccccccscsccssssscesstseccesestseeeessteeeesaners 279 J. There Is No Requirement Or Necessity For The Instructions To Inform The Jurors That If They Determined That Mitigation Outweighed Aggravation, They Were Required To Return A Sentence Of Life Without The Possibility Of Parole... eec elise seseeesecseccnseeeseecseeeeneeesaneesnesrsersipenees 280 K. The Jury Is Not Required To Make Written Findings OfAggravating Factors «0.00... cee eeeseene 280 L. Intercase Proportionality Review Is Not Required oo... ceesceessseeesecesseeeeceeeetseeesenesesseeessnetensens 281 M. The Use Of The Death Penalty Does Not Violate International Law And/Or The COMStitutiOn oc cece csccessseccceecevesseccecuansecessceeuaunens 281 CONCLUSION0... ccceceeeseccseeneeeesesseeseceneceeeeeecsessessaesaeeeaeeeaseieeaeeeneens 282 iX TABLE OF AUTHORITIES Page CASES Abbott v. Mandiola (1999) 70 Cal.App.4th 676 oc cccccccsesssescsscsesesssesestscssseetesessessseeesesees 137 Apprendi v. New Jersey (2000) 530 U.S. 466... ccccccescceesesetecsssesssecsesseeesscsssenesseseeseesesesesassees 174 Batson v. Kentucky (1986) 476 U.S. 79 vooecccccecscccssesseessessseeneceseceseeeteesaeeceeesseenaeeeness 103, 119, 120 Berger v. United States (1935) 295 U.S. 78 vcccccceesseseeleseseseneesesesesseseseseeecsesesessesesanecssseeseeeaeeees 131 Blakely v. Washington (2004) 542 U.S. 296.cccecctecesesetsteteescseeessseseenessseereeenees 174, 277, 278 Brownv. Sanders (2006) 546 U.S. LQ eceecccccneescsesscssseeeeseeseseesesenecseseesesseecsesesaeeeseereaeees 176 Bruton v: United States (1968) 391 U.S. L238 occ cccesesesecseseeeseseteseseetecseseseneneeaeeenessesstecsenenenes 267 Bullcoming v. New Mexico (2011) 564U.S. [131 S.Ct. 2705, 180 L.Ed.2d 610]... 159 Chapmanv. California (1967) 386 U.S. 18 ccccccccccenctecsenseeeseeesecseneessseeeesesenssnecseereasensaneess passim Cunningham v. California (2007) 549 U.S. 270.eseteeeeeesneesneetnneesnneennereneenneeenneesne 277, 278 Delaware v. Van Arsdall (1986) 475 U.S. 673... eecseecceeeseeesiesesneeesuneesnnetennseesneeesniecsaecsnteennes 164 Gray v. Mississippi (1987) 481 U.S. 648octsseneeetceeeeceteceeesssenseaeeeeaees 63, 99, 100, 101 Hovey v. Superior Court (1980) 28 Cal.3d occecccccesseersecstesesecesseeccseeeseeesaeecteeessiresiteseaneeees passim In re Anderson (1968) 69 Cal.2d 613 voccccccccccccscssssesesecsessctsesesecscnecsssesseesseessesseeeeereees 63 In re Christian S. (1994) 7 Cal.4th 768 vccccccccccscssecscsscsscsevssesseeseecesccsenessessessessesaeensenes 226 In re Ross (1995) 10 Cal.4th 184 oi ccsessessscscssesssesssescsssscsescsssscssseesssseneess 256 Jackson v. Virginia (1979) 443 U.S. 307 cccecescscessesessseneeeeeesecscseseceeceeecsceesaseetereesenes 167, 200 Jacobs v, Scott (1995) 513 U.S. 1067 wooseveeeeseneeseseassesacsesecsssssetsseessneeecnesenenees 270 Johnson v. California (2005) 545 U.S. 162 oeccc sseeceseessseeeeneceeceesasesenaeeseecseseerseeeeneeetes 103, 121 Lockett v, Ohio (1978) 438 U.S. S86...ccc“siucansceeessserencecevensceseeseesesaceesenacerss 261 Lockhart v. McCree (1986) 476 U.S. LO2.cccccccceeseteetecseeseeseesensesessecsessesteeeessecseesetaeegs 100 Melendez—Diaz v. Massachusetts (2009) 557 U.S. 305 occcccccccccecseeseesssecsecsecsessetesscsesteestesesetsaesees 159, 164 Miller-el v. Cockrell (2003) 537 U.S. 322 .cccccccsccsccsesesssseesscsesecscscsseesesssesecscseseesscsesesseeseaees 130 Nienhouse v. Superior Court (1996) 42 Cal.App.4th 83.0.0 ccceeeseeeeeeerensnseeeseecseereeeeasasseeeereeenes 262 People vy. Abilez . (2007) 41 Cal4th 472occcccececcseessesesseceesesseenesseseeesesessenessensaenees 173 People v. Anderson (2001) 25 Cal.4th 543 iccecceccesessteeseseseeeeseteeseees 251, 262, 273, 277 People v. Anderson (2006) 141 Cal.App.4th 430 oicccccessceecssecenstsenensrerenetseeeesssseeters 226 People v. Aranda (1965) 63 Cal.2d 518 oicicccceccsssenesetseteneceeeesesesessseeneteseenseeeesseeseeees 267 xl People v. Arias (1996) 13 Cal.4th 92 occccccccssseseseesssseesesereceseseteesecscsesesens 275, 279 People v. Avila (2006) 38 Cal.4th 491 oc ecccccessecssneescseesnneeseneeceneeensesnnessneeeenete 275 People v. Babbitt (1988) 45 Cal.3d 660 oo. cccccccssssssneesestetscsescsesessseseerscscsesetessserseseasneas 150 People v. Bacigalupo (1993) 6 Cal.4th 457 oo ccccscseseeesessescecetecsesesesesenesearsceeseeeetsesesssearaees 273 People v. Balderas (1985) 41 Cal.3d 144icccessseteneestenececseseseneseeeseseersesesereeeeereesssees 226 People v. Bandhauer (1970) 1 Cal.3d 609icccccecesenststseesesecsesessteccsesesessseseneneseresseaeaens 146 People v. Barnett (1998) 17 Cal.4th 1044 oo ccccccceceseseseseseeeesseseseneeneneseseeseeeeeeaeees 82 People v. Bell (1989) 49 Cal.3d 502 ccccccccsscseneeseseesenecseeecesseeesenseesseeeeeaseenecnenes 131 People vy. Bell (2007) 40 Cal.4th 582 oo. ccccececeseseeeeteteteneeeseeeeeees 123, 124, 139, 145 People vy. Beltran (2013) 56 Cal.4th 935 ooo iccceecccececsseeseeseesecesecseeereneeeeseessesneseevteerenneeas 270 People v. Bemore (2000) 22 Cal.4th 809 ooo cccccccccceeseecesneescsserseeesesesenecseeneseeenesetees 169 People v. Bivert (2011) 52 Cal.4th 96iccccseesesectctseecssssesscessesneeessessrarscenerssnenens 279 People v. Black (2007) 41 Cal.4th 799 oc ccccsccscscecessesssesseseescsenecseenscecsesessetesseneesees 160 People v. Blacksher (2011) 52 Cal4th 769 ooo cccccccsecsscetenecsesenenseseeesesetessensieeeeseeeeeeseens 130 People v. Blair (2005) 36 Cal.4th 686 vc cccccccccessssesersessececescnsesevectecteenessestesseeeees passim XU People v. Bolden (2002) 29 Cal.4th 515ieccssseeeseseeneteneessstssseesesseseeneseesessenees 171 People v. Bonilla (2007) 41 Cal.4th 313 ooeeceesseceeeeeseseeseeeetenenens 122, 139, 142, 144 People v. Booker (2011) 51 Cal.4th 141 ooeeeeereneneeeeeeeeeeesMeseeeesenes 124, 182, 236 People v. Box (2000) 23 Cal.4th 1153 occcccceeseteteteeeetseeeeeeereeees 124, 271, 272, 273 People v. Bradford (1997) 15 Cal4th 1229oocceeeessnessseseseeeeseverescsenssaseeeteteeevenseneass 62 People v. Brady (2010) 50 Cal.4th 547 oo ccccccceeeseteteecessnesseeersescsenesseeeneceeeaseeeees 274 People v. Breaux (1991) 1 Cal4th 280oceceeenenseecseecesseseneasscssacsenesecetesesatasaeeeaees 274 People v. Brents (2012) 53 Cal.4th 599occcecsessesstsseeecsesenetecseseaeeeeeees 171, 173, 174 People v. Breverman (1998) 19 Cal.4th 142 oocceceeseseeceescseseseseseeesesenenenes 184, 219, 266 People v. Brown (1988) 46 Cal.3d 432 oo ccccceccsesetseseseetecsesetseeeseecseeessessieteeecseteneees 257 People v. Brown (2004) 33 Cal4th 382 ooo cicccccccesceeeceeetseceeeeseseeeeeaeeessesiseeteeenee 274, 277 People v. Bryant (2013) 56 Cal.4th 959 ooccccecessesecenetsesesssenecscecseieneeseserevseseenseeseeaes 226 People v. Bunyard (1988) 45 Cal.3d 1189occceccceeeseseteeesscsenseeceesssesecsssenetsesesesenenens 192 People v. Burney (2009) 47 Cal4th 203 oiiccecececssessssesssneseeseeeneesseeenenseenensanensetes 170, 171 People v. Burton (2006) 143 Cal.App.4th 447 ooo ccccseeecesesseneesseenssseseeeeesnesseeeseeiees 205 Xill People v. Butler (2009) 46 Cal.4th 847 occccccccesesecececscsrsesenecsssenscessensescseseessasenseenees 97 People v. Cain (1995) 10 Cal.4th Loiccccesesenstsseteneneesseeeeesesessseneeesees 168, 197, 261 People v, Carasi (2008) 44 Cal.4th 1263 occccsetsesessenssecseeesseeteesesassecseetetsensees 127 Peoplev. Carpenter (1997) 15 Cal.4th 312cccccesenesseetenenensensessessessacseeeetenesersseeseeeees 183 People v. Carrington (2009) 47 Cal.4th 145ecccceccsseecsetesssesssectevscssneesesenesesseseereaeeenenees 279 People v. Cash (2002) 28 Cal4th 703 oo... ccccceecssecseeseecerseeeeeneceeenseesesseenerneeesenas 97, 218, 264 People v. Castaneda (2011) 51 Cal.4th 1292ooccceceeeseneteteteteeeeesseeeteateesees 174, 222, 236 People v. Castillo (1997) 16 Cal.4th 1009iceceesscteceesseeesseseesseseaseceeseeesseseneeesens 200 People v. Catlin (2001) 26 Cal4th 81 oicccccceccccceceeecetecsscenssnetsenseseneeensseeeseetteseetetes 271 People v. Chatman (2006) 38 Cal.4th 344 oooeteeeneeenetene pecacaeeeeaeseeeescseesesesetseataees 275 People v. Clair (1992) 2 Cal4th 629 oncccccccsccenenecesseneteneeceaenesessenessveeeeesseenneeeeess 252 People v. Clark (1992) 3 Cal.4th 41ccceeeseseeecctececseseneeceseeeenesaesenseaseeesseseneneees 160 People v. Clark (2011) 52 Cal.4th 856 .occcccccccccccccecsecsecsecsesssenscesecsseesesseeesessesetees passim People v. Coffman (2004) 34 Cal.4th Loic ccccecececccsensecceecececeeesetesseecenseseeeseesaeeeeatenees passim People v. Cole (2004) 33 Cal.4th 1158 occecceeeeesseneeceneeesneeseeeseesctevvsessesecsessesenees 181 xiv People v. Collins (2010) 49 Cal.4th 175 occceceeseneseseneeeseeeseneseneeecsenenseerseteessnesees 279 People v. Cottle (2006) 39 Cal.4th 246ccceseseseessnsneseesetsnssesseeesssenssssneeretssieneeees 146 People v. Crew (2003) 31 Cal4th 822occceeccccccsecessesssnesesteseenseesnenssesaeseeneeeeneeteasseens 274 People v. Crittenden (1994) 9 Cal.4th 83 oc cccccccccecssesesessesesetetscessseeesseeneeeees 62, 82, 272, 273 People v. Culuko (2000) 78 Cal.App.4th 307 oo. ccccsseseesseessseesseseceesststesseneeeeeees 192 People v. Cunningham (2001) 25 Cal.Atle 926oc cccccccccccsscscseesesseeesesecsesseseessseesesessesetseeeenees passim People v. D’Arcy (2010) 48 Cab.4th 257occeeeecererceeeenenseenerssessessceeneneesesserseeseees 167 People v. Daniels (1969) 71 Cal.2d 1119oeeeeeesecteteneseeneesnesesieeneneeseeseeeeeey 232, 237 People v. Davenport (1995) 11 Cal.4th L171nessescessesnesses 124 People v. Davis (1995) 10 Cal.4th 463 oeecccceeeseeseesseseseeeessesteeeseeessneeeneneneesaes 199 People v. Davis (2005) 36 Cal.4th 510... ecccccesseseeetecsecssseressees 220, 221, 277, 280 People v. Davis (2009) 46 Cal.4th 539 ooocccccccecssesecsesscsecsersesseesecescsctecseesessesees passim People v. Daya (1994) 29 Cal.App.4th 697 oo cccccsceecessnecesceseereetessenecseeesseetseeerses 274 People v. DeHoyos (2013) 57 Cab.4th 79 oo ccecceteseceneececeteveeecsssstetseseneeecssseeesesetereseaseeees 133 People v. Demetrulias (2006) 39 Cal.4th booeeceececeeecteseessesneneeeeeeeeteens 229, 276, 278, 281 XV People v. DePriest (2007) 42 CalAth 1 vcccccccccccssssssesssssssssssesrseesssesseees 168, 170, 178, 219 People v. Diaz (2011) ST Cab.4th 84 occcccccccscsessessseesesescsssesesesesesesesesseseveneeseenens 102 People v. Doolin (2009) 45 Cal.4th 390.0.cieteseueeseessestecettaseeseesnenseesenanen 98, 146, 261 People v. Duncan (1991) 53 Cal.3d 955 occcccesecessssscecstecessesesesssesssesesseaeteteenteres 220, 280 People v. Dungo (2012) 55 Cal.4th608oecccsseseseneesenetstensesseerereeesseaes 161, 162, 163 People v, Earp (1999) 20 Cal.4th 826 oo ccccccccseessesseseseeeseenetensseseseseenenenssseetessesneeseeees 62 People v. Edwards (1991) 54 Cal.3d 787 cccccececcsecessecsesesesesesesesesesesesneneneensssseseaeatetsees 150 People v. Elliot (2005) 37 Cal.4th 453 ooccecesssseceeetsecestsvsnsneeeeseseseesnessstseseneneeseens 169 People v. Elliott (2012) 53 Cab.4th 535.eeeeeeeseeieeeeeeteeeisseceeneeeeneentaes 119, 273, 275 People v. Ervin . (2000) 22 Cal4th 48 oooceenesnessessneeneaeessneesesasensencenens 98 People v. Estrada (1995) 11 Cal.4th 568octetsseeeeessaeeessenneeneasennecesneeesen 169 People v. Famalaro (2011) 52 Cal.4th 1 sovssseenecnegeneeatecnecnesseceneeaessegnuegatsoneeseenteatecnneateaneeneg 278 People v. Farley . (2009) 46 Cal.4th 1053oceeneenesetesenssesessssesenenenestesesesesseees 261 People v. Farmer (1989) 47 Cal.3d 888 oooccccceccsesescssseesestenssenessesenenesetsseteereseeeesetees 200 People v. Fauber (1992) 2 Cal.4th 792occeeeeeneteneneseeeieeeseeeeeneerersterieeesseseteeieeey 281 XV1 People v. Fierro (1991) 1 Cal.4th 173 ccccceccnesseeecteresssssacsecessesnestesvesssereseeneeatenes+ 256 People v. Flannel (1979) 25 Cal.3d 668 o.ccccccecsccecessssseselessetsseseseensesteseeseensteeneseaes 185, 219 People v. Foster (2010) 50 Cal4th 1301 ceceseneeseeteteseeeeseessssssesseesenererennens 171, 281 People v. Frye (1998) 18 Cal4th 894cessesreeseeneecnensscsessssesessesesenssessesecsess 261 People v. Fuiava (2012) 53 Cal.4th 622 ooiccccccccsesccessscseseseseeseeeaeeseesesseseesseseeeases 275 People v. Gambos (1970) 5 Cal.App.3d 187........... Leseseaeeeeeeeene seseeeveneeeesnneccenecesnneecenarecssseny 264 People v. Garcia (2011) 52 Cal4th 706 oo. csccecsssseeseceretenstseseenereeteneeessenes 62, 130, 132 People v. Gardeley (1996) 14 Cal4th 605 oo cseecceseceetesesentescsesensecsserenesecenenenseeneesseees 163 People v. Garrison | (1989) 47 Cal.3d 746 oc ccccccecsetseceeneteseeecessienecssesseasseeteterereneees 192, 193 People v. Gonzales (2012) 54 Cal4th 1234oecceenescnsseneneneneenenensessesesseessesenesentes 263 People v. Gonzalez (2006) 38 Cal.Ath 932 ooo icccccccccccceceseceseccesssessceeseeeecssesesssenseesseenaes 257 People v. Gray (2005) 37 Cal.4th 168 oooccccccccccccssssssessseesssssesseeess 139, 222, 278, 281 People v. Green (1980) 27 Cal.3d 1 ooccccecesececeseseneneeeeseseensteeestenseenenesseeeeteeeees 166, 168 People v. Griffin . (2004) 33 Cal4th 536 cccccccccccccscsssssecserscsesscsssecsesessesseseesesesseneees passim People v. Guiuan (1998) 18 Cal 4th 588ooeeeceseeneeeeneeeeeeneeeenseecesesssseseesenees 181 XVil People v. Gutierrez (1993) 14 Cal.App.4th 1425oceccceeeeteeecsesesetenseseneeeesenes passim People v. Gutierrez (2002) 28 Cal. 4th 1083wccccsssecseceeseteesesetetesecsessseserssenessees 125, 133 People v. Hale (1999) 75 Cal.App.4th 94.0. ccccccsscscsrscscseseseecsssesssessseenerensseeeretees 205 People v. Hall (1986) 41 Cal.3d 826vecesessesceseeseesctecseescessereersecesesteseeeneeeeatenteaes 166 People v. Harris (2008) 43 Cal.4th 1269occccscetececeseseseenenensssseesseseseeeeteeeataeerenes 281 People v. Harvey (1984) 163 Cal.App.3d 90... ceeeecteseesseneneisesecsesneneeseecseesesetiees 124 People v. Heard 2003) 31 Cal.4th 946occsecneseneesessensseesesssssessseeeseeeeseneees 63, 94( People v. Hillhouse (2002) 27 Cal.4th 469 ooo cccseeceeenseeesessssesnesseeseeeseceeeenenens 242, 281 People v. Horning (2004) 34 Cal.4th 871cccccneseserenececeecsssesesssenetenesestenessecierereees 169 People v. Houston . (2012) 54 Cal.4th 1186.0.cececeeeseeesneeessesesesneneneneneteasenseseens 198 People v. Hovarter (2008) 44 Cal.4th 983 oo ccccecceseeesereteneeesetsscnesseesseenrenenenerees 274, 278 People v. Howard (1988) 44 Cal.3d 375 .occeccsccctesenesesssseseeneeenseseeeseeeecseanenseetesaeereraeaees 62, 82 People v. Howard . (1992) 1 Cal.4th 1132iccceseeeteteneeeteeeeeeeeeeeenenseesetereeesatasaens 124 People v. Howard (2008) 42 Cal.4th 1000.0... cccecsececseeseeseseesesssessesessssessensereneeets passim People v. Hoyos (2007) 41 Cal.4th 872occeeereeeeeseseesssesssesseneeienes 121, 135 XVIiil People v. Huggins (2006) 38 Cal.4th 175 occ cccccsccccseeeesssctetserseeseneeneeeeneeees 138, 170, 187 People v. Hughes (2002) 27 Cal.4th 287 oo. cccccecceseesceeeseseceeeeteceseneeseevsceeseeesneseeeeeneee 205 People v. Jackson (1996) 13 Cal.4th 1164...cccsesscseseseesesesssseesteessesseeeesesserenenes 200 People v. Jennings (2010) SO Cal.4th 616... cccccccsececeteneseetenessesesseeectenseesenseteeensesasers 215 People v. Johnson . (1989) 47 Cal. 3d 1194 cccccccccccessesecsssecsssecseseeseescsetecseessseesssseneeetes 139 People v. Jones (1964) 228 Cal.App.2d 74... ccccesetetsessseteesesstensereaeecseessensesensesetes 265 People v. Jones (2011) 51 Cal4th 346occcceetenecseeneereseneteeseeteneeseeeeenes 139, 254 People v. Jordan (1986) 42 Cal.3d 308 oecccccsecsesecterseessesesseeaenscnecsessecseescteesenseseeeees 150 People v. Kauffman (1907) 152 Cal. 331 eeiecessseeteccneeeesersesseeeeereecaeersserseesseenaseneesaeeaaeeas 192 People v. Kaurish (1990) 52 Cal.3d 648 ooocccccccsecscsetscecseseesccssseeecssessesecsscesseseeseesees 82 People v. Kelly (1992) 1 Cal.4th 495 ooo ccccceccccescccecsseseeesecessesseenseesssessesseeseressenes 151 People v. Kipp (1998) 18 Cal.4th 349occcccceceeecsesenenecssensesesesesessesesesenenseeeseas 280 People v. Kirkpatrick (1994) 7 Cal.4th 988 ooo ccccceesesesenesseenseseseeescscseseaeseseseseneeeeseeneaeseneas 98 People v. Kraft (2000) 23 Cal4th 978 occcccccceccceseceseteneceesssesesesesseseseseeeeseesees 150, 168 People v. Kwok (1998) 63 Cal.App.4th 1236cccceccceccesecsseseecsseeseeeseceressseennesesntenaes 222 XIX People v. Landry (1996) 49 CalApp.4th 785 oo cccccecccessecesestssseeseeseesssstesseansetssesneeneens 136 People v. Lara (1994) 30 Cal.App.4th 658 oecccessesereseseeasissesenenseerseseaeeeneees 220 People v. Laws (1993) 12 Cal.App.4th 786 occcecssssscnenenesetenenenenenecerssssseeterenesenees 197 People v. Ledesma (2006) 39 Cal.4th 641ieetecssseeteteeeesneneeeseecsesseseenenenesenees 130 People v. Lee (2011) 51 Cal.4th 620 v.cccccccccssscesssesssssecssssessseneresessseeee 182, 189, 227, 262 People v. Lenart . (2004) 32 Cal.4th L107ceere ceseseeseneeeseneeesseenstesteeeneey 279 People v. Lenix (2008) 44 Cal.4th 602 0... ceecsceeeeeeeteeeseeeeeeneseseeeeenas 119, 122, 136, 138 People v. Letner (2010) 50 Cal.4th 99 ooo cccccecseseteesesssessscscscssseesssseseessseesseas passim People v. Lewis (1983) 147 CalApp.3d 1135 oiccscceteteeseeseteeeesietsersessseenenreaees 199 People v. Lewis (2004) 120 CalApp.4th 882 occcceee cere cenecsetenseseseecseeeseseenes 205 People v. Lewis — (2008) 43 Cal.4th 415 ooeneneeceneeeesseesesteceesestecssssasnesseneseratrees 138 People v. Lewis (2009) 46 Cal.4th 1255oeecceeceeeecteeeeecseseeseeeereceseesseesnesseneeseney 168 People v. Lightsey (2012) 54 Cal.4th 668 oo. ccccccccscccseseesssessesesesssecseecseecseeeeeeeeeeesseasseates 262 People v. Lindberg (2008) 45 Cal.4th Loon cccceseceeeceessseesecsncseeeesenenereneeeetssavecseessessanees 167 People v. Loker (2008) 44 Cal4th 691ccceeeserererrersereeasenens 252, 278, 281 XX People v. Lomax (2010) 49 Cal.4th 530ccccceeeseetseesteeessenseeesseteneceeiseerseeneees 130, 137 People v. Lucky (1988) 45 Cal.3d 259 oocceeseeseeteteneecesnenetseessesensienseseesesesaeasaerenes 254 People v. Maciel (2013) 57 Cal.4th 482 ooocccsccetceceneeeeeesceecaeeeesecaeeesseeeeneneseecteates 160 People v. Marks (2003) 31 Cal.4th 197occccecesesensessseteeeeseneneeeceeeeeeasteeeeenees 153, 273 People v. Marlow (2004) 34 Cal.4th 131cccceeceesetetecseeeeeeneeseeeseseneseeeeneneveveeenetevees 269 People v. Martinez (1999) 20 Cal.4th 225oeeeesseeeetecnesneeretnesneereeees 231, 236, 237, 239 People v. Martinez (2003) 31 Cal4th 673 occecceccsecseereceesseeseceeceesseesseteesesesaeenens 254, 258 People v. Maury (2003) 30 Cal.4th 342 ooccccescseesenesscsseeeteessneseteeseretteees 168, 178, 275 People v. McDermott (2002) 28 Cal.4th 946occcecesseetenereeesstseeeesneressenesseeseenenersereaes 124 People v. McKinnon (2011) 52 Cal4th 610cceccccccseecessesecececseeesneesenesstsecsseetseneeesieeasers 95 People v. McKinzie . (2012) 54 Cal-4th 1302occ ccecceceseesesescesesenetensseneteesseeseseses 102, 119 People v. Mejia (2012) 211 Cal.App.4th 586 oo cccceeeeecesesesssescseeneteneterenteen 201, 202 People v. Mendoza (2000) 23 Cal.4th 896 occccccscsesesseseeseseessesecsseresecscsessssecsserssetetsesees 226 People v. Miller (1994) 28 Cal.App.4th 522 ooo cccccceceeceetsesseesesensenscnsseesesecsetestevareeens 218 People v. Mills (2010) 48 Cal.4th 158cereteense 103, 105, 119, 146 XXI People v. Monterroso (2004) 34 Cal.4th 743 oicccsesesssecestensceseecseesessenssseceesseesseseseseeeeeees 167 People v. Montiel (1993) 5 Cal.4th 877 oo. csesscecssnsscseseenenenesssseessessecsessesesersenaserseseenees 130 People v. Moon (2005) 37 Cal.4th Lieeecenstescsssnenenesenseceesseesesasssasesscasacerenesseeees 274 People v. Morrison (2004) 34 Cal 4th 698 oooceessseseeneeetsneesseeneesssneneateieseseeeens 276 People v. Musselwhite (1998) 17 Cal.4th 1216.ceeeeeeeseeeeeeseenssescensneveesesasssesesseeseees 172 People v. Navarette (2003) 30 Cal.4th 458vecesveeeseseseeseseseaeeeveeseseneees 168, 170, 178 People v. Neely (1993) 6 Cal.4th 877 oiceccececeeccesecscseseseaesessseeeseasseneeeersieseseeeeaeees 200 People v. Nichols (1967) 255 Cal.App.2d 217 oo iccssesesseeesstessseteenecnsseisseeeteneeesseeees 199 People v. Ochoa (1998) 19 Cal.4th 353 oo ccceecseseecseeceessssesenseeteeseeteenerenereeee 252, 273 People v. Ochoa (2001) 26 Cal.4th 398occceeseteteesesenenenesseeeeeseseeetaees 271, 274 People v. Osband (1996) 13 Cal.4th 622icccceteeneteeeseneneeereeeteneeeteenens 197, 200, 278 People v. Panah (2005) 35 Cal4th 395 oo ccccceccsesessteseeeeseetscetssseenenssesersesssseeesessenees 132 People v. Pearson (2012) 53 Cal.4th 306icccecsctenesneeeeteeeetenessensseesenerecsseeseeees passim People v. Pearson (2013) 56 Cal.4th 393 occceeseeseeeeeseeesecseeseenecseeeetseeenerenenes 136, 160 People v. Peggese (1980) 102 Cal-App.3d 415 vic cccceneneeesseneteneesserereaseceseneeees 149 XXil People v. Phillips (2000) 22 Cal.4th 226... cceeeesenseeeseeseteneeeeentes ceoneeenneeeeeneeeenness 62, 77 People v. Pinholster (1992) 1 Cal.4th 865 occcceceecseseseeeetecseseseeeseseseseneneeseseaeaeneneneees 98, 258 People v. Posey (2004) 32 Cal.4th 193 occcccsssesecenesscseneeseesenecseastscssasiererseseeseeneees 181 People v. Prettyman (1996) 14 Cal.4th 248 oooecessseeseseeesssecneeeeetensstersteeaeatens 187, 192, 195 People v. Prieto (2003) 30 Cal.4th 226 occcceesseseneeessessesseretsnsseseesseeseesserereeeeas 271, 275 _ People v. Raley (1992) 2 Cal.4th 870 occcccceccceseeecseeseseseeetessesesesetesseseaseaesess 171, 174 People v. Rayford (1994) 9 Cal4th Loeeeeseteseseseeeseenseeseeneeseeeeeesenens 231, 236, 237 People v. Redd (2000) 48 Cal.4th 691occcecsesececeseseetesceneneteeeeseeeseetcseaeaeeeenens 279 People v. Reynoso (2003) 31 Cal.4th 903 oc ccccccccsccsecscseescescssssectecsessesseesesateseeecsseseens passim People v. Riccardi (2012) 54 Cal.4th 758 voccccccesecssceteescrersesetsceeeenes veceneeeteeneentenes passim People v. Richardson (2008) 43 Cal.4th 959oieccececececeeceseecsseseneeesneecessecenseeestees 189, 193 People v. Rodrigues (1994) 8 Cal4th 1060...cccccsesecseeecteeeececsessstsscseteesetsacseenes passim People v. Rodriguez (1986) 42 Cal.3d 730 occcicccccnecsseseeetseeesssetenscersctersesseeseressenerseesnenes 280 People v. Rogers (2006) 39 Cal.4th 826 occccccsscseseseesscscsesetsessseseesssessesessseerecsees passim People v. Roldan (2005) 35 Cal.4th 646 occ ccccccccseseeseseteseeeceseecsesenesseeesenevssenesereeaes 146 XX People v. Rountree (2013) 56 Cal.4th 823 oo. cceccesceccceteeeeseeneesesesetenesssseseesseseees 168, 229 People v. Roybal (1998) 19 Cal.4th 481ieesesenetstseseeeserssssetesssssesesesseseeeeseseeeeeeees 62 People v. Rupp (1953) 41 Cal.2d 371 oceeeceseneseseeseseeseessessesneessneevensnensesensnseeanees 226 People v. Russell (1953) 118 Cal.App.2d 136 oc ccccessctceeseerevecersssesenssecseessseaeteeees 178 People v. Saille (1991) 54 Cal.3d 1103 cccccececeeseneecestsesesssesesesessscseesseseseneesnseeeesees 227 People v. Sakarias (2000) 22 Cal.4th 596... cccsseneesccetenececetecseesseseneessssseseseesenes 268, 269 People v. Salcido (2008) 44 Cal.4th 93 occ cccccescscescscnstecsesseeeeesesetenscesseseseesseessesseneeees 275 People v. Schmeck (2005) 37 Cal.4th 240occsoeeessneeessneeeenneesnneesennnecenins 272 People v. Seaton (2001) 26 Cal.4th 598ocececeeecceeeceneteseesesseneneeeneeeeaes 77, 226, 269, 271 People v. Sedeno (1974) 10 Cal. 3d 703 occ ccceceseececcesseneeseceneeseeesensneeeessseaeneeseaeseeeeeees 184 People v. Silva (2001) 25 Cal.Ath 345 ooo. ecceceecccsceseeesseeeeseceneenacersesseeseeesaeceaeeneeenaeens 223 People v. Smith (2005) 35 Cal.4th 334 oo ccccceeeeeeeeteretessenenetsteceeneneeeees 252, 256, 275 People v. Snow (2003) 30 Cal.4th 43 occcccesreeseeceeteneesessneseserssasesasnesessenenees 273, 281 People v. Souza (2012) 54 Cal.4th 90 occccccceesencereesseenevssesensesseseeesenrseseeneneseesenes 261 People v. Stanley (2006) 39 Cal.4th 913occeeeneeneseeereesseressesseevsneesaeeeesansrseenenenees 277 XXIV People v. Stanworth (1974) 11 Cal.3d 588 occccesecsectseaeeeeeeeteeessetenenesesereesseneees 231, 240 People v. Staten (2000) 24 Cal.4th 434 oocecccseeerecetenseseetersesteceeeseeeseseseeseneeeees 167 People v. Stender (1975) 47 Cal.App.3d 413. cccccsesccssssesescsecssevecsseesessseessesenenesseeees 239 People v. Stevens (2007) 41 Cal.4th 182occessseeeteseeeetseestesetereneeees 121, 279, 280, 281 People vy. Stitely (2005) 35 Cal.4th 514 oo ccceneeeseeeseneeeeeeeseeseeseneeneeeees 150, 151, 281 People v. Streeter . (2012) 54 Cal4th 205 oncccccescscessscsesenesseteeecsceerersetseesssieneeteeeeeaes 276 People v. Taylor (1990) 52 Cal.3d 719 cccccccccccessssessesesesecseecssesesesssnessseesaecreneseseeesaes 279 People v. Taylor (2009) 47 Cal.4th 850 ccccccceessssecsnensesssecseecseseseressesesseseressersaeesees 127 People y, Taylor (2010) 48 Cal.4th 574 oc cccccccccscescsensesstersceessersesstesseseeteenenesseaes passim People v. Thomas (2011) 51 Cal.4th 449oocccccescnsecssceseessseeeetaeecseesasesteseareeaees 120, 127 People v. Thornton (1974) 11 Cal.3d 738 ooo ccccccecceeseseseeeeeeesesenecseesetetsesessetasseenes 239, 240 People v. Tully (2012) 54 Cal.4th 952ccc cesescscssecseesecssscseceseeserersssserecseeseeesesessseeesenees 166 People v. Valdez (2004) 32 Cal.4th 73 ooo cccccccccceccsccscsssscsecseseseesserssessesensessees 167, 218, 262 People v. Valdez (2012) 55 Cal4th 82oceececsesseceseeeesseeeessnerseetseneeeneaseeeesessensees 275, 278 People v. Vieira (2005) 35 Cal4th 264occssscceesessssecesesensnsesestesserssssessecssssseireeeee DOL XKV People v. Vines (2011) 51 Cal4th 830ooceccecesctenssenensnseeeeseeeescseasseeteeteneeesesstaes 263 People v. Virgil (2011) 51 Cal4th 1210.eeceeensneneeeeseeesssestseseaeseetenteerees 182, 227 People v. Visciotti (1992) 2 Cal4th Loccceccsesesesstesenenenenstsneseeseecesesssenseseseseeneneseeeeaes 228 People v. Wader (1993) 5 Cal4th 610 oc cccceseecsecsesssesesesesneeseseceessesesesnensasaeseseseeeseeeenes 62 People v. Waidla (2000) 22 Cal.4th 690occcccsecesssesseserensceesssceesecsssenenecseseesssssevesaees 200 People v. Ward (2005) 36 Cal.4th 186 occccccccesencsetsesetensnecssseceesscseseeesssstecsenseessess 130 People v. Watson (1956) 46 Cal.2d 818occcceccesecseesetecseesenstscestessesesseeeeestneees 153, 224 People v. Watson (2008) 43 Cal.4th 652 occccccceessseeecereeteeseseeeenees 130, 145,153, 265 People v. Webster (1991) 54 Cal.3d 411 occeceesetesecessestecetsessesesssssteneseseees 200, 223 People v. Welch (1999) 20 Cal.4th 701 oc ceccccccessseecscsssessesescseasseneseeneneneeeeesneas 97, 122 People v. Whalen (2013) 56 Cal.4th Loccccecscccccsseecserscesseeseesssessessesteneenees passim People v. Wheeler — (1978) 22 Cal.3d 258 sccccsccsccssssssssssssesesssesssssesssessasasssencsesesnssnseeeeeeee passim People v. Whisenhunt (2008) 44 Cal.4th 174iccccecetentenseereestsesnesssssenecsessseaes 169, 197, 279 Peoplev. Whitt (1990) 51 Cal.3d 620 oo. iccceccseeeeeeceseneeseseecetenseeeseenenersenesersenesatienes 262 People v. Williams (1976) 16 Cal.3d 663 o.cecccccccccceeceseeseneteneisseneissieciensnenesenseeeetentenes 160 XXV1 People v. Williams (2006) 40 Cal4th 287 occ cccecssescsersssseeeseeesensacaseveneneessessnsseesensieess 261 People v. Williams (2010) 49 Cal.4th 405 occccseeeesesenenecseseeneeseneveusensesesetecsseeeneneees 98 People v. Williams (2013) 56 Cal.4th 630iccceeeeecsssenensteetseesessereereenesetstesessesteeseens 241 People v. Wilson ° (2005) 36 Cal4th 309 oeccecseseescsessescseesusuecsseseensscseenssescssensevensensens 278 People v. Wilson (2008) 43 Cal4th Loneeeeseeneneseseeeseeseneessessssevassnensessseeaseeeseees 276 People v. Wright (1990) 52 Cal. 3d 367 .cccceecscseeeseseeeenereseseseseeseeetseseeeseeesncasaeaveveeseens 258 People v. Yeoman (2003) 31 Cal4th 93 occceesecseseesereesneesseesseseerseesenseseensneneees 147, 273 People v. Zambrano (2007) 41 Cal.4th 1082.0ccceceeteteneeeeeteeeseeesseeneneeneneneees 120, 121 People v. Zangari (2001) 89 Cal.App.4th 1436.eceeeneeseenessersessecseeessenesessenecnens 222 Pulley v. Harris (1984) 465 U.S. 37 ecccccccssessessscssesecseeseecsecseesessessesseseessesecseesseetaees 101 ‘Purkett v. Elem (1995) S14 U.S. 765 ooo cccc cece cesecccsscescesceceaseseesecesessevsevsasesensseasens 121 Ring v. Arizona (2002) 536 U.S. S84cceceeseseseeeereeenetenecesacaeeeseeeeeteeseesneaees 174,277 Rodriguez de Quijas v. Shearson/American Express, Ine. (1989).490 U.S. 477 ccccccccccseeesesesesesesesesesesenesenecesetseaeseseseneneaeneneatens 102 Ross v. Oklahoma (1988) 487 US. 81ccsesecscseeecsececsscecsesessesecsecsesssesesseseeesees 99, 100 Uttecht v. Brown (2007) S51 US. Liccccceccsssecsesssesseseescsessesseeesesassesseceesesscsesesseeesstaneess 716 XXVil Wainwright v, Witt (1985) 469 U.S. 412 vocceccscscsesscssssessssssececsessvecessseveseesssevecessssvceeasevesesee passim Witherspoony.Illinois (1968) 391 U.S. 510eeeecceneeseeceeaeeectecsesecnecnenesneseetsetseeseeneees 5, 77, 100 STATUTES Evid. Code, § 210... ccccccssssestessesssssscseseeecscsesesessesssesesereseesscseseneseeseeees 150 Evid. Code, § 350.cccccecesenessesesescseseneneseneneeensceesesesessessescaenenensnenenenenees 149 Evid. Code, § 352 oe ccececesssceseeseererseserenersecseeecneseesneesenseees 152, 153, 264 Evid. Code, § 354. ccccccccsssesssescscsesessseseseseseseseesssesseevesesecsssesssesesees 263, 266 Evid. Code, § 354, Subd. (8) ccccccccssssessescsesessereseseeseessesecessesetererseneeees 262 Evid. Code, § 356 ..ccccececscceseecereeeceeesereaessereseeeeseeeeeeerarsneeetiens 264, 265 Pen. Code, § 187, SUD. (8) ..occcccccccccesesensessseesceecsesscscesescsecsesacseeacsceeeaeereeteas 1 Pen. Code, § 189eicecccseseneeereesteeersenseneeesereees 204, 216, 226, 228 Pen. Code, § 190.2 occ ccccsccceceeescereeseecnececsetecsecsesenseseneceetecsenecnenssatereaeeeey 273 Pen. Code, § 190.2, subd. (8) ccc ccccccccscscesseessesscssesseeesecsececsecseeseneeeenes 166 Pen. Code, § 190.2, subds. (a)(1)-(22) .occcccccccecessssseteeseteeseneeseteneteeeees 273 Pen. Code, § 190.2, subd. (€)(17) o.oo. eececceeeteeeesesectststssnn 166 Pen. Code, § 190.2, subd. (A)(17(A)... cceceeeesssenseesetenentecesecseseseaetenesseeeens 1 Pen. Code, § 190.2, subd. (€)(17)(B) ..cccssccscecsecseesesseeseessessessesseesteeseenen 1,3 Pen. Code, § 190.2, subd. (€2)(17)(C) eececceceeeeesestseeneceesneeneeseeeetneeneenennen 1 Pen. Code, § 190.2,subd. (€)(17)(K)....eeseecceeesneesneeeeeeeetteteeneeesseeeeetenen 1 Pen. Code, § 190.2, subd. (a)(18).....ccccecesececsseeeesteteeenetetereeseseaes 1, 166, 169 Pen. Code, § 190.2, subd. (d)occcceccceeneterereesteeeneneeseetseseesesnenseatieneneees 168 Pern. Code, § 190.3 vcccccccescscseeseseeseeseseeeseneeneseeeeeenensresssesseesseesenes passim Pen. Code, § 190.3, subd. (8) occ cccccccccscsesessesecsesesssscsecsctersesecsesecesteeseeens 274 XXViil Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. | Pen, Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen. Pen, Pen. Pen. Pen. Pen. Pen. Pen. Code, § 206 .......ccceeeeeseeeeenees ceeds ceeeseneeseseeneeseesenesecsesaesseeseneeeeeenengs 1 Code, § 207 voccccccccccsssesesecsscseesecesscesetecsecsceecnsvsesaesecesseeseeeesseatenveeseaees 232 Code, § 207, SUD. (8) oo. cc i cceceeccsesscseecenecseeseescsassesseeeesseeeeeeeeseseeens 231 Code, § 209, Subd. (Db)... ccceeeccsssseseertseeseeeeesenecsesaeeseeneesesseneesaeaeees 231 Code, § 209, subd. (b)(1)...eeetuttntasnnanansnaee 1 Code, § 211 icccccccescetseseneeeteesenecsesesescenecsetetseeesseeeenees 1, 29, 170, 219 Code, § 261, subd. (€)(2) ccc cccscccsessesesersetececscsesseneceesseeeeesevasesetseeees 1 Code, § 242 viciccccccccscccsscssesscssecsscsscescssccsecssssessecsscsssesseesrenesseeneesseesees 254 Code, § 261, subd. (A)(2) cccccccssscssessesesssscseseeseescsecesseeseneesetersseesseereaes 1 Code, § 264.1 iececeeteteeeseeeeeeeeensseseeesuceesenseeseseenerenseeneneneseseneanensenees 1 Code, § 289, subd. (a)(1) occ ccccccscssceessssecensescecseseeseeetseseeaeeeeseesesteeiees 1 Code, § 290 oo ecccceeseeneseseeneneneseeeeeeneeasaeseceseesesseacesneeeeessseseeseeenesaeaes 4 COde, § 41Seectsteeseseseeseenessesesnersseseaneseseseaenesseseeeesnenees 254 Code, § 484 icccccccccsccecscsecscseessnscseneetsacsessesecseesaseessetseesrsseersenecssees 219 Code,§ 654 biceveeecseesecevveescesuccecscecessuscesssececsessesssacesseseceesesseensetecneaecesante 4 Code, § 664 wu._senststsstststttsesutiseseiiesnisese 2,29 Code, § 667 oocccccccccccccesscsscssccsecsscssssecsscessseeecsecsssessesesasessesseessensesenees 4 Code, § 667, Subd. (A)(1) cccececcesssesesesesseseseeeseseseneeseenenereneressnaeaentaess 4 Code, § 667, subds. () - (i). ccceceeeceeseceeeeesesesesesenenseseenseeseneraenenees 2 Code, § 667.61 oo. eeceecsscnceecseesscesenecneveenecaeesesaesaesseseseeteteneneenee 207 Code, § 667.61, SUD. (8)... cecccccctcessccseesttseecseesersesaees 1, 3, 237, 238 Code, § 667.61, SUD. (A)(2)...ceccccceceenecsesetseecseceeeeseerseteseetetseteenees 232 Code, § 667.61, subd. (D) cecscccsssssssseeeeen scestssssnestane 1, 3, 237, 238 Code, § 667.61, subd. (4) occ cccceeseecseeeeeteeenes eeueeaeeeseesesseeaeees 1,3 XXIX Pen. Code, § 667.61, subd. (€).....ccccccccecccssessteetseetestesteeseseees 1, 3, 237, 238 Pen. Code, § LIL 8.1ceccccccsccsseecssecesssecsseeecsseceesseeeseeeessnesessnessteeenees 2 Pen. Code, § LISD iccccccccsccsccscscsecsesscsssscsenecsecssscscsesseessesessseseseeseseaens 199 Pen. Code, § 1152 vccccccccsssccsesccseseesesecsesecsecscsecsssevscseesssesessesseeseseeeesesees 199 Pen. Code, § 1170.12 icccccccesesesssscseneesssetecsescneteeesseteesseeseteeeseenevssereenees 4 Pen. Code, § 1170.12, subds. (8) - (d) vce ccccecsensesesetenseeeseneeessetenerseeeaenees 2 Pen. Code, § 1192.7, subd. (C) cece ccccscccsssscececessececsseeesseseeeeesteeesetseeee 1 Pen. Code, § 1202.4 cccccccssescssesssesesscscsssstsesssessescsenenseseasseessseteseeeesenseenees 4 Pen. Code, § 1239, SUD. (D) occcecccceesesesseteeeesenscseeeeeeesstereesaseeeeteeesseeses 5 Pen. Code, § 12022, subd. (D)(1).....cceecccesscessseeeeseeestesesreessseesereseneees 1,2 Pen. Code, § 12022.3 .iciicccccessscessseseseesenesseeeeseeeesseesseeessenersenestevseaevenatersaees 1 CONSTITUTIONAL PROVISIONS Cal. Const., art. 1, § 17 icceeececcsccssecceneeesseecesseesseseecseeensaeeeeteeeneeeenns 157 Cal. Const., art. VI, § 13 voc. ccecccssceessccssecesaeeeeeeesereesseeceeeesaeeseeeersas 266 US. Const., Sth amend. ...........ccccecssssscccceeceeeceeeeeeeesessessseeeeseeseeeeeees 95, 147 U.S. Const., 6th amend. 0.0... cceeceeceeeseeeereeeeeeneeeneeeeneens 99, 147, 162, 164 U.S. Const., 8th amend. .........cececccccsccccccecsesesesseesssseeeans 147, 193, 267, 277 U.S. Const., 14th amend. .........cecccccecenssecesecsessneeeeseneeseeeessertneeesens passim OTHER AUTHORITIES CALJIC No. 1.0] ccccccccscscseeceectecssececcseescseeeeseseeseeecserscneaeseeseaeesenseessenteas 201 CALJIC No. 1.20 iccccccccccesseseeeeteeecseteesceececeecseneqeceeeccenseaesesenseneseanevsseneeas 252 CALIIC No. 2.02 vessesstssseecteteteeeseeetistntreetstrnretntstneneneee 207,214 CALSIC No. 3.00 cccceeeeeeeestereteneseteneeceseneeeteeneteseeersenesenees 210, 214 CALJIC No. 3.01 cicceccesecesceeeseseneeesecseneeeseeeneneseseesnersetseneanas 190, 210, 214 XXX CALIIC No. 3.02 cssscsssssssssssssssesneisessnssnerneenetnssraninesnseeseneeve 181, 187 CALIJIC No. 3.027S secssssssssssssssessesasssssnstnisnetnsssaninetasiassseesenneeve 189 CALJIC No. 3.30 sssscsssssssssesssesessntssssserenstve seccusasensantetassnee passim CALIIC No. 3.31 sssssssssssssessseesessssnssssrnetnsssstnsnianassasenetsneve 208, 214 CALIIC NO. 3.3105 scscssesssssssssssssseseanssstsnsasintssansenisansesessesannessee 208 CALJIC No. 8.10 cscscsssssssssssssasseseetsnssestsnsesssssanssssisessasenensee 204, 218 CALIJIC No. 8.20 ssessssssssssssssssnsssisasnssisaniesnsesiassasesenn 181, 225, 227, 228 CALJIC No. 8.21 ciccccccccccsesseseseessrecsesnsessesecsesseseesecsesseesesseceeeeteeesenrenes passim CALIJIC No. 8.24 scescssssssssessnsesansatssnasistntintsasisenisenieeiassusnaesaten 181 CALJIC No. 8.27 ssesssssssesssssssssssnsessssasisnianietsnstnsessnsetissssee 204, 218 CALIIC No. 8.30 sscsscssssssssssssssissssnvsssnssnssanianssenseniensansasnnesnetnsen 223 CALJIC No. 8.71 ssscscssssssssssssssssssstsssssstnnssniassnsssenisanansnsnnesnennsee 273 CALIJIC No. 8.80.1 sscssssssssssssssssssnssssnsesseee 175, 197, 201, 203, 204, 218 CALIIC No. 8.81.17 ssssssssssssssssustnesssnasessnassnesuseistsanense 167, 190, 218 CALIIC No. 8.81.18 vcscsssssssessssstussssssssnssussassssnsesssiatsnessee 212,214 CALIIC No. 8.85 ceccssssssssssssssstisstssessnssessansssesansessnssnseceecatsesse 253 CALSIC No. 8.87 cocccccsccccssssesceesseecsstesnstvananstnssnneetananneneese 252 CALSIC No. 8.88 vsossssscsssesstsssssststssttssssstansnssesnsenaniesee 274, 275, 280 CALIIC NO. 9.40 csssscsssssssssstsessssstsssisstssssnssisastsestanasiasesssnenntee 218 CALIJIC NO. 9.50 ssccsssssssssssssssssessssssnsstsessaunssssnieesaniasee 233, 237, 238 CALIIC No. 9.54 cosccssssssssssssssssnesssnssnsssnsensesennnssetsansnseesesee 234, 237 CALIIC No. 9.90 sssccsssssssssstssssstsetssssssassansensessanssnientasssensesese 214 XXXI STATEMENT OF THE CASE In a second amendedinformation filed by the Los Angeles County District Attorney, appellant’ was charged with: murder (count1; Pen. Code,” § 187, subd. (a)); second degree robbery (count 2; § 211); kidnapping to commit another crime, to wit, rape (count 3; § 209, subd. (b)(1)); forcible rape while acting in concert (count 4; § 264.1); forcible rape (count 5; § 261, subd. (a)(2)); sexual penetration by foreign object while acting in concert (count 6; §§ 289, subd. (a)(1), 264.1); sexual penetration by foreign object (count 7; § 289, subd. (a)(1)); and torture (count 8; § 206). Counts | through 8 were alleged as serious felonies | within the meaning of section 1192.7, subdivision (c). (2CT 394-406.) As to count 1, the following special circumstances werealleged: the murder was committed while appellant was engaged in the commission of (1) robbery (§ 190.2, subd. (a)(17)(A)); (2) kidnapping (§ 190.2, subd. (a)(17)(B)); (3) kidnapping for purposes ofrape (§ 190.2, subd. (a)(17)(B)); (4) rape (§ 190.2, subd. (a)(17)(C)); and (5) rape by foreign object (§ 190.2, subd. (a)(17)(K)). It was further alleged as to count | that the murder was intentional and involvedthe infliction of torture within the meaning of section 190.2, subdivision (a)(18). (2CT 396-397.) Asto counts 4 through 7, it was further alleged that the victim was kidnapped and tortured by appellant within the meaning of section 667.61, subdivisions (a) and (d), and that appellant kidnapped the victim and used a deadly weapon (in violation of sections 12022.3 and 12022, subdivision (b)(1)) within the meaning of section 667.61, subdivisions(a), (b) and(e). ' Appellant’s two codefendants, Kevin Darnell Pearson and Jamelle Edward Armstrong, were severed from the instant case and tried separately. (ICT 6-13, 195-201, 214-219, 368-379; 2RT 50-51; SRT 791-792.) * Unless stated otherwise,all further statutory references are to the Penal Code. . Additionally, as to counts 3 through 7, it was alleged that appellant used a dangerous and deadly weapon,to wit, a stake/stick, within the meaning of 12022.3, subdivisions (a) and (b). Moreover, as to all the counts, the information alleged that appellant personally used a deadly and dangerous weapon, to wit, a stake/stick, within the meaning of section 12022, subdivision (b)(1). Finally, the second amended information asserted that appellant had incurred oneprior serious or violent felony conviction (attempted robbery in violation of sections 664 and 21 1) within the meaning of section 667, subdivisions (b) through (i), and section 1170.12, subdivisions (a) through (d). (2CT 394-406.) Appellant pleaded not guilty and denied the special allegations. (2CT 405-406; 2RT 2-4.) On October 21, 2002, the court granted the People’s motion to exclude the victim’s toxicology information and report, and also granted a defense motion to exclude evidence of gangaffiliation. (2CT 422.) Thetrial court granted appellant’s motion to bifurcate his prior conviction allegations. (2CT 477; 6RT 896-897.) Trial was by jury. (2CT 477-478, 481-482.) Voir dire commenced on October 31, 2002, and the jury and alternates were impaneled on November 12, 2002. (2CT 477-478; 7TRT 1084; ORT 1862-1863, 1878-1879; 1ORT 1904-1905.) The presentation of evidence on the guilt phase began on November 13, 2002. (2CT 501; 1ORT 1924.) Thetrial court denied appellant’s section 1118.1 motion for judgment of acquittal due to insufficiency of the evidence. (2CT 508; 11RT 2344.) At 11 a.m. on Tuesday, November19, 2002, the jury began deliberations on the guilt phase. (2CT 587; 11RT 2422-2424.) At 2:20 p.m. on Friday, November 22, 2002, the jury found appellant guilty of counts | through 8, and foundall of the count | special circumstancesallegations to be true.’ (3CT 597-607; 12RT 2527-2534.) On count 1, the jury additionally found that appellant was “[a]n Aider and Abettor and had the intent to kill or was a Major Participant and acted with reckless indifference to humanlife.” (3CT 597.) The jury made “not true” findings on the personal use enhancements alleged in counts 2 through5, and was unable to reach a verdict on the personal use enhancements alleged in counts 1 and 6 through 8. (3CT 597-607; 12RT 2527-2534.) As to counts 4 through 7, the jury found to be true the allegation that the victim was kidnapped and tortured pursuantto section 667.61, subdivisions (a) and (d). (3CT 601-604; 12RT 2527-2534.) As to counts 4 and 5, the jury found to be “not true” the allegations that appellant kidnapped the victim and used a deadly weapon pursuantto section 667.61, subdivisions(a), (b) and (e), and was unable to reach a decision on those allegations with respect to counts 6 and 7. (3CT 601-604; 12RT 2529- 2532.) Finally, outside the presence of the jury, appellant waivedjurytrial and admitted the truth of the prior conviction allegation. (3CT 607; 12RT 2537-2538.) Jury trial in the penalty phase began on December 2, 2002. (3CT 608; 12RT 2559.) Jury deliberations began on December10, 2002 at 9:15 a.m. (3CT 640; 14RT 3175-3177.) At 11:20 a.m. on December 11, 2002, the jury returned a verdict of death. (CT 641, 643.) On January 23, 2003, the court denied appellant’s motion to modify the judgment of death. (3CT 692; 14RT 3195-3203.) On the same day, the * For unknownreasons, the second special circumstanceallegation of kidnapping pursuantto section 190.2, subdivision (a)(17)(B), alleged in the second amendedinformation was notlisted on the verdict form. In other words, the second amendedinformation alleged six special circumstanceallegations, but the verdict form listed only five “true” findings, with the kidnapping allegation being the missing special circumstance allegation. (See 2CT 396-397; 3CT 597-598.) trial court sentenced appellant to death on count 1. (3CT 693, 697-698.) Asto the remaining counts, the trial court sentenced appellant to the middle term of three years on count 2, doubled to six years pursuant to sections 667 and 1170.12, plus five years pursuant to section 667, subdivision (a)(1), for a total determinate term of 11 years on count 2. (CT 693.) The court stayed the sentence on count 3 pursuantto section 654. It imposed the middle term of seven years on count 4, again doubled pursuant to sections 667 and 1170.12, for a total term of 14 years on count 4. The court sentenced appellant to 25 years to life on count 5, once again doubled to 50 years to life pursuant to sections 667 and 1170.12. The court gave appellant the middle term of six years on count 6, doubled, for a total term of 12 years on count 6. The court again sentenced appellant to the middle term of six years on count 7, doubled, for a total term of 12 years. Finally, on count 8, the court imposed a term oflife with the possibility of parole.’ (14RT 3203-3206.) The court also ordered appellant to pay a $200.00restitution fine (§ 1202.4), and to register as a sex offender pursuant to section 290. (14RT 3215.) The court granted appellant 1,697 days of presentence custody credits, consisting of 1,476 actual days plus 221 days good time/worktime. (3CT 693; 14RT 3213.) 4 Unfortunately, with respect to counts 2 through 8,the trial court did not clearly delineate which counts were consecutive and which counts were concurrent to one another. Rather, after pronouncing the sentence on count7, the trial court simply stated, “The sentences will be concurrent.” It then went on to sentence appellant to “an indeterminate sentenceoflife” on count 8. (14RT 3206.) It is unclear from the record whetherthe trial court meantall the sentences in counts 2 through 7 to be concurrent, or whether the court meant for the sentences on counts 6 and 7 to be concurrent to the sentence on count 5. Both the determinate and indeterminate abstracts of judgmentrefer to each of counts 2 through 8 as “concurrent.” (3CT 699- 702; see also 3CT 692-696.) This appeal from the judgmentof death is automatic. (§ 1239, subd. (b).) STATEMENT OF FACTS I. THE GUILT PHASE A. Prosecution Evidence J. The Defendants And The Victim At the timeofthe instant kidnapping-robbery-rape-torture-murder, appellant was 22 years old, his half-brother Jamelle Edward Armstrong was 18 years of age, and their mutual acquaintance Kevin Darnell Pearson was 21.° (LIRT 2238, 2250.) Armstrong was five-feet-ten inchestall, and weighed roughly 160 pounds. (11RT 2252, 2274, 2278.) Pearson was about six feettall, and weighed approximately 175 pounds. (11RT 2252, 2278-2279.) Appellant was about five-feet-four inches tall, and weighed approximately 150 pounds. (11RT 2252, 2256.) Victim Penny Sigler was a diminutive 43-year-old woman, whostoodjust five-feet-four inches tall, and weighed only 113 pounds. (JORT 1952; 11RT 2238.) > Pearson and Armstrong wereboth identified in front of the jury during the instant trial. (11RT 2273, 2278.) Codefendant Pearson was convicted and also sentenced to death in connection with the crimes in the — instant case. On appeal, this Court affirmed Pearson’s guilt phase convictions, but reversed the penalty of death due to error under Witherspoonv. Illinois (1968) 391 U.S. 510 [88 S.Ct. 1770, 20 L.Ed.2d 776] and Wainwright v. Witt (1985) 469 U.S. 412 [105 S.Ct. 844, 83 L.Ed.2d 841]. The People subsequently re-tried the penalty phase, and a second juryonce again recommended death on April 15, 2013. Los Angeles Superior Court Judge Tomson Ong re-sentenced Pearson to death on June 26, 2013. That case has been automatically appealed to this Court (see case number $212159). Codefendant Armstrong wasalso sentenced to death in a separate proceeding, and his automatic appeal is currently pending before this Court (see case number $126560). 2. The Discovery Of The Crime Scene In 1998 and 1999, Mr. George Bark worked for Caltrans. On Tuesday, December 29, 1998,° Bark was working along the 405 freeway west of Long Beach Boulevard, near Wardlow Road. Bark’s job wasto pick up debris and repair fences along the freeway embankment. While doing so, Bark discovered PennySigler’s battered body. (LORT 2025.) Bark felt for a pulse, but the corpse was cold. Heleft the body andnotified his supervisor, who contacted the California Highway Patrol (CHP). (1ORT 2026.) Whenhe found Penny’s body, Bark was located at an upper area along the freeway, looking down towardsa fence along a ditch. (1ORT 2027.) The fence consisted of a black screen, held in place by large stakes, some of which were downon the ground. Exhibit 3A’ lookedlike oneof the stakes. Exhibits 3B and 3C appearedto be broken stakes. The wind sometimes broke the stakes. Bark picked up the bad ones, and replaced them with unbroken ones if necessary. (LORT 2027-2028.) 3. The Police Investigation Detective Brian McMahonofthe Long Beach Police Department (LBPD) arrived at the crime scene on December 29, 1998, at roughly 3:30 p.m. Penny’s body waslocated near the rear of 3395 Long Beach Boulevard, a small shopping center complex, situated at the intersection of Wardlow Road whereInterstate 405 passed overhead. (1IRT.2221, 2223.) ° The prosecutorincorrectly asked Mr. Bark to confirm that he discovered the body in January, 1999, to which Barkreplied affirmatively. Actually, the evidence demonstrated that Mr. Bark discovered Penny’s body on December29, 1998. (LIRT 2221, 2249-2250; see AOB 317.) 7 All the exhibits presentedattrial were introduced by the People. The defense did not introduce any exhibits. Wardlow Road ran east to west. Long Beach Boulevard ran north to south. (1IRT 2225.) | A small retaining wall ran from the drainage ditch to the sidewalk of Wardlow,separating the parking lot and stores from a small, triangular- shaped area adjacent to the sidewalk. There were a lot of leaves, debris, bushes and eucalyptus trees in the area. A chain-link fence ran along the drainage ditch and alongthe rear of the buildingsall the way to Long Beach Boulevard. (11RT 2222-2223.) The drainage ditch from Long Beach Boulevard to Wardlow Road was about 410 feet long. (LIRT 2231.) The fence was about a foot away from the back wall of the businesses. (11RT 2227.) The chain-link fence intersected a cinder-block wall. (11RT 2223.) The fence that separated the parking lot was aboutsix feet high. The cinder-block wall was right next to the fence, which was about three-and- one-half to four feet high. (11RT 2239.) A portion of the chain-link fence had been pulled back. A person, perhaps with somedifficulty, would have been able to squeeze through the opening. (1IRT 2240; Exh. 16A.) The fence was bentoverin different areas along its entire length. (11RT 2240.) There wasalso another fence constructed of “black mesh-like nylon type meshing,” held up by woodenstakes, that was designed to keep debris from washing down the embankment. (11RT 2224.) There was quitea bit of blood and debris on the portion of that fence near Penny’s body, along with drag marks nearby. (11RT 2228.) Photographsofthe area taken by LBPDinvestigators clearly reflected Penny’s body, as well as a broken wooden stake. (11RT 2224, 2226 -2229; Exhs. 16 [photo board] & 23.) Her body wasroughly 150 feet south of Wardlow Road, approximately in the middle area of the businesses at that location. (11RT 2231.) Specifically, Penny’s corpse was located about 35 feet from the chain- link fence, and roughly the same distance from the lower cinder-block wall. (11RT 2238.) Placard 27 in one of the crime scene photographs (Exh. 16H) markedthe location of a shoe. (11RT 2230.) It was a very dark area, even in the late afternoon when the photographs were taken. (11RT 2231.) There were no lights in the back of the businesses. There werenostreet lights in that area, either on Wardlow Roador on Long Beach Boulevard. There waslighting in the parking lot that illuminatedthe lot, but not the back of the businesses or the embankment. (11RT 2233.) A group of photographs captured Penny’s body the way she was found. (11RT 2242; Exh. 11.) It was difficult to see her corpse because of the location, the lighting, and due to the mulch piled on top of her. (11RT 2242-2243, 2249.) Two photographs (Exhs. 23C and 23D) showedseveral small areas of blood splattering on the wall. There wasa lot of blood on the bushes, but it was difficult to photograph. (11RT 2235-2236.) The closest blood splatter to the body was about 10 to 12 feet away. There was a large amountof splatter in the drainage area, and drag marks over the mesh fencing and through the mulch. (11RT 2247, 2249.) The splatter in the drainage ditch was about 12 feet from the body. (11RT 2228.) Detective McMahonlater located a stake on the embankmentthat was introduced as evidenceat trial. He did not believe that it was the actual weaponusedto violate Penny, but opined that it was similar to the object that may have been used in the crime. (11RT 2251.) Penny’s death occurred around 11:00 p.m. to midnight on December28, 1998. (11RT 2250.) Penny lived at 3342 Maine Avenue, about one-half to three-quarters of a mile away. (11RT 2237; 12RT 2669.) Prior to the homicide, a shipment of 2,000 Los Angeles County food stamp couponshad beensent to the Nix check cashing store at 6583 Atlantic Boulevard, number 106, in Long Beach, California. The shipment included food stamp couponsbearing the serial number F02520550V. (1ORT 2034.) Mr. Joseph O’Brien had been with Pennyearlier on the night of her death. The parties stipulated if O’Brien had been calledto the stand, he would havetestified that on December 29, 1998,° he gave Penny a ten dollar food stamp coupon book containing five and one dollar coupons to buy soda and candy. O’Brien had obtained the food stamps from the Nix check cashing store on Atlantic Boulevard in Long Beach. Penny left home between 10 and 11 p.m. That was the last time O’Brien ever saw Penny alive. (LORT 2065.) Los Angeles Police Department (LAPD) Detective Paul Edwards assisted other detectives assigned to this case. On January 6, 1999, Detective Edwardsreturned to the crime sceneafter receiving information that Penny had food stamps on herpersonat the time of her death. (LORT 2050-2052.) He first went to the south side of 3395 Long Beach Boulevard (the small strip mall). Detective Edwards scoured the groundsofthe small, triangular, wooded area that constituted the crime scene. He subsequently found a single white sock. (LORT 2053-2055.) At the opposite end of the building, on the southeast side, Detective Edwardsnoticed a ladder leading to the roof. At the foot of the ladder, he found the cover of a food stamp coupon book. (LORT 2054-2056.) The inside cover bore the serial number F02520550V. (ORT 2057.) The Lorena Market? waslocated at 6625 South Broadwayin Los Angeles. Mr. Efrain Garcia managed the family-run business. Approximately 30 percent of the market’s business was transacted using food stamps. (LORT 2035-2036.) Garcia recognized appellant from the neighborhood as a regular customer, and remembered seeing him in the ® This stipulation appears to be incorrect, as the evidence demonstrated that Penny left the residence late on the evening of December 28, 1998, not December 29, 1998. (1IRT 2250.) ” The name alternatively appears as “La Reina” market in the record, (1ORT 2040.) market between Christmas and New Year’s Eve of 1998. (1ORT 2043- 2044, 2047.) Appellant came into the market and bought food using food stamps. (1ORT 2044, 2046.) Garcia also recognized several photographs of other individuals as customers who cameto the market. The photographs Garcia recognized included those of Damion Monson, Maurice McDaniel, and codefendant Armstrong. (LORT 2047.) Garcia also viewed a photograph of codefendant Pearson. He thought that he recognized Pearson, but wasnotcertain. (1ORT 2049.) Police officers had previously arrived at the market and had asked Garcia about food stamps. The market deposited food stamps once a month. (1ORT 2037.) However,at the time, the marketstill had the food stamps received between December 23 and December 30, 1998. (JORT 2037- 2038.) Garcia’s father had retrieved the stamps from their homefor the police. (ORT 2038.) Twoofthe food stampsbore the serial number F02520550V. (1ORT 2038-2039; Exhs. 18A & 18B.) Garcia recognized his market’s stamp and account number on the food stamps. (1ORT 2040.) On January 7, 1999, at 1:15 a.m., Detective Edwards executed a search warrant at appellant’s residence at 335 % West 69th Street in Los Angeles. (LORT 2057-2058.) Detective Edwards seized a gray gym bag from the north closet of the master bedroom. Inside the bag were a brown “checked”shirt, “Nautica” blue jeans, and a green long-sleeved sweater with a blue stripe. In the same closet, Detective Edwards found a brown- rimmedhat, a whitet-shirt, and a pair of “American Eagle” blue jeans. (1ORT 2058.) While searching under the bed, Detective Edwards also found a pair of black ‘“‘Guess” brand shoes with an unusualcircular pattern on the soles. (10RT 2058, 2062.) This same unusual pattern appeared in a photograph of a Shoe print from the crime scene. (1ORT 2059.) Next to the bed, 10 Detective Edwards found a shoe box containing a “PacBell” telephonebill in appellant’s name. (1ORT 2058.) Detective Edwards also found a food stamp coupon (with a different serial number from the booklet foundat the crime scene) in a tin can on the television in the master bedroom. Moreover, he found several black leather jackets in the master bedroom. Oneleather jacket hung on the door to the bedroom,and appeared to have bloodstains on it. (LORT 2059; Exh. 13A.) Detective Edwards searched a second bedroomin the northwest corner portion of the house, which appeared to be the children’s room. The room had two beds. He found a blue “Travel-Lite” gym bag underneath the pillow at the head of the bed closest to the door. The bag contained a North Carolina sweatshirt, a tan “Dickies” brand shirt, tan “Dickies” pants, a football jersey, white shirt, blue jeans, “Arizona” brand overalls, and a pair of black “Redwood”brand boots. (LORT 2059-2061, 2063.) Appellant later identified the overalls as belonging to Armstrong and the boots as belonging to Pearson. (11RT 2166-2167.) Detective Edwards also discovered an employment application in appellant’s nameon thetelevision stand in the living room. (1ORT 2059-2060.) On January 7, 1999, LBPD Detective Steven Lasiter served a search warrant at Pamela and Jamelle Armstrong’s residence located at 73 1 Redondo Avenue in Long Beach. Asa result of the search, Detective Lasiter seized several items of clothing, includinga shirt reflected in photographs marked as Exhibits 12D and 12H. (1IRT 2211-2212.) On January 11, 1999, Detective Lasiter recovered two food stamp coupons (Exhibits 18A and 18B bearing the serial number F02520550V) from Mr. Efrain Garcia.'° (LIRT 2213-2214.) '0 Detective Lasiter also conducted the aforementioned photographic lineup with Mr. Garcia. (1IRT 2214-2218.) 11 4. Appellant’s Statements LBPD Detective Steven Prell questioned appellant on January 7, 1999 at the police station. (1ORT 2067.) Appellant was in custody, and was transported to the interview room, where he remained from 2:00 to 5:00 a.m.'' At 5:10 a.m., he was advised ofhis constitutional rights. (11RT 2172-2173.) Detective Prell advised appellant of his rights from a standard form (Exh. 25). (LORT 2071.) Appellant wrote his name on the form, initialed each of six phrases, and signed it. (ORT 2073-2075.) Detective Prell printed his name on the form, and his partner Detective McMahon, who waspresent during appellant’s interview,also signed it. (1ORT 2075.) At the beginning of the interview, Detective Prell and Detective McMahonintroduced themselves. (1ORT 2067, 2069.) The detectives normally did not tape interviews, because a visible tape recorder made people inhibited and nervous. Generally, Detective Prell interviewed people off-tape to avoid covert recording. (10RT 2069-2070.) Detective Prell told appellant that they were investigating a recent murder, but he did notinitially disclose the location of the crime. (1ORT 2076-2077.) Appellant subsequently made three unrecorded statements about the murder, as well as one recorded statement. (LORT 2076, 2152: 11RT 2175.) Thefirst and second statements were made during a single session lasting about one hour and 25 minutes. (1ORT 2090.) In the first statement, appellant denied any involvement whatsoever. He said on the night ofthe murder, he wasinitially at his mother’s house near Seventh and Redondo. 'l Detective Prell indicated that he waited to interview appellant until the completion of the search warrantactivities at appellant’s house. Heexplainedthat, if anything was found during the execution of the search warrant, he wantedto be able to question appellant aboutit during the interview. (11RT 2172.) 12 He then wentto his friend Mr. Monte Gmur’s house,” and finally, he took a bus back to his own residence on 69th Street in Los Angeles. (JORT 2076, 2079.) Appellant said that Gmur’s house wasin the area of Anaheim and Cedar in Long Beach. Detective Prell estimated that this location was two to three miles from the crime scene. (1ORT 2077-2078.) Next, according to appellant, he awoke the following day at his home. His friend “Shawn”then drove him backto his (appellant’s) mother’s house, where appellant picked up some clothes. Shawnthen drove him to an adult bookstore in Long Beach. While at the adult bookstore, appellant — bought edible panties, and Shawn bought a “dildozer.” (LORT 2079-2080.) They then went to a fish market in South Central Los Angeles at 120th and Avalon, purchased somefood from Burger King,andfinally returned to appellant’s residence on 69th Street. (LORT 2080-2081.) Initially, appellant was not very forthcoming, so Detective Prell asked him if he had heard about a murder, or had watched the news about a woman found onthe side of the freeway. (LORT 2081-2082.) By that time, there had been newscasts and newspaperarticles about the murder. The newscasts were attempting to identify the woman. (1ORT 2082-2083.) Appellant then made a second unrecorded statementrelating a different version of events. Hesaid that he received a phonecall at his home on 69th Street informing him about the newscasts. (1ORT 2083.) His fiancé’s mother, Trisha Garner, had called and notified him. After the call, appellant’s fiancé turned on the television to watch the newscast. (LORT 2084-2085.) Detective Prell then asked appellant about the clothing seized from his residence, because he wanted to identify the owners of those clothing '2 Mr. Gmur had a music studioinside his residence. (12RT 2655.) 13 items.'? (1ORT 2085.) Detective Prell asked appellant whether he owneda leather jacket. Appellant said that he ownedthe black leather jacket that washanging on the door knob behind the bedroom door. Appellant said that there wasjust that one leather jacket and that it belonged to him. (1ORT 2086.) In this second version of events, appellant then indicated that codefendant Armstrong had borrowedthat particular black leather jacket. Appellant said that, on the same day he wentto the adult bookstore, he had first stopped by his mother’s house andretrieved the jacket from where his half-brother Jamelle Armstrong had allegedly left it. ((ORT 2087-2088.) Detective Prell also asked appellant about shoes during this second version of events, and appellant admitted that he kept shoes at the 69th Street residence, and that he wore a size nine. Appellant claimedthat the last time he was in Long Beach was on December29, 1998, at about 7:30 p.m., after he left the adult bookstore. (1ORT 2088.) This was the day after the murder. (11RT 2165.) During the second version of events, appellant did not provide any other detailed information regarding his whereabouts on the night of the murder. (1ORT 2089.) Appellant simply stated that he left Gmur’s house, and then rode busesback to his house in Los Angeles. Appellant admitted that he might have the dates wrong,and that he could have been confused by one or two days. Detective Prell testified that appellant was going back and forth in his statement because he was getting the dates confused. At one point, appellant said that he was on a bus, or buses. However, he then stated that if he was identified by people as being on these buses, then those '° Prior to questioning appellant, Detective Prell had searched appellant’s residence on 69th Street. (ORT 2085.) An inventory of the items seized had been prepared by other officers. (LORT 2085-2086.) 14 witnesses were lying, because he was not on a busthat night. (LORT 2089- 2090.) Following a 15-minute break, appellant made a third unrecorded statement. Prior to this statement, Detective Prell informed appellant that the platform areas of the Los Angeles rail system had video surveillance cameras.'* (10RT 2091.) Detective Prell also advised appellantthat his brother, Jamelle Armstrong, was already in custody. (LORT 2092.) Appellant then becamevisibly shaken and upset. He asked Detective Prell to prove that Armstrong wasin custody, and that he wouldthentell the truth. Appellant wanted to see Armstrong. Instead, Detective Prell wrote the date on a piece of paper, and then he gavethe paper to appellant to write down whateverheliked. (10RT 2093.) Appellant wrote, “I love you,” on the piece of paper. (LORT 2094; 11RT 2245-2246; Exhs, 26 & 28.) Detective McMahonthen took the paper to Armstrong while Detective Prell remained with appellant. Detective McMahonreturned with the paper and a developing “Polaroid” picture. Appellant watched the picture develop. (See LORT 2133, 2134; Exh. 29.) He wasvisibly upset and crying. Appellant then said that he wouldtell the truth. (LORT 2095.) Appellant subsequently beganto relate his third and final version of events. Appellant described the music studio activities at Gmur’s house in Long Beach. (10RT 2096.) Appellant then stated that he and Pearson went to a liquor store and bought several alcoholic beverages (“Night Train,” “Thunderbird,” “Cisco,” and “Old English”). They mixed all the liquor together, and began drinking. (11 RT 2178.) Appellant, Armstrong, Pearson, “Chris,” and a man appellant knew only as “Boulevard” then left Gmur’s house at approximately 11 p.m. They ‘4 The cameras monitoredthe areas, but did not record. (1ORT 2091-2092.) 15 went to the “Metro”rail platform. (1ORT 2099, 2101.) Chris and Boulevard boarded southbound. Appellant, Pearson and Armstrong boarded northbound to Wardlowstation in Long Beach. (10RT 2100.) From the station, the three men walked to a bus stop. They walked _ east on Wardlow,onthe north sidewalk, toward Long Beach Boulevard. (1ORT 2101-2102.) Appellant and his two companions reached the other side of an overpass, and then noticed a Whitefemale on the south sidewalk of Wardlow. She yelled, “Fuck you, niggers,” at them out of the blue. They did not provoke her. (1ORT 2102-2103; 11RT 2178-2179.) The three men then crossed the street together toward her. (ORT 2102-2103; 11RT 2179.) Appellant suspected that she made the remark because she was drunk or on drugs. (11RT 2184.) Appellant said that something just “clicked” when she madethe racial slur. He indicated that he “he hears voices, but he does not know whose voice he hears.” (11RT 2180.) After crossing thestreet, all three men approached the woman,later identified as Penny Sigler. Appellant asked, “Whothe fuck you calling a nigger?” Everyone began yelling at one another. The next thing appellant remembered wasPennybeing on the ground. He did not know how she ended up on the ground. (10RT 2103.) Penny was lying on the ground on her back. Appellant removed her shoes. He began to climb up an embankmentalongside the freeway. He intended to throw her shoes on top of a building, but he lost his footing and slipped. (LORT 2103-2104.) Penny was nude when she waslying on the ground on her back. The next thing appellant knew, he was down on the ground next to Penny. She was nude and bloody. Appellant did not know how Penny becamebloody. Hejust realized that she had a bloody face. ~ Penny asked for help in a faint voice, and extended her hand to him. (LORT 2104-2105; LI1RT 2180.) 16 Penny used the words, “Help me.” (11RT 2174.) Appellant did nothing when she asked for help. Pearson told appellant to collect the clothes, and he complied. He gathered the clothes from around Penny’s body, and placed them into a brownplastic grocery bag. Appellant also collected one shoe. (1ORT 2105.) The shoe was near Penny’s head. (1ORT 2106.) Asappellant picked up the shoe, Pearson and Armstrong jumped over a wall or fence. Appellant followed them overa wall to the otherside. (1ORT 2105, 2106.) The three men then crossed thestreet to the bus stop on Long Beach Boulevard, north of Wardlow. All three boarded bus number60 to Los Angeles. Pearson had the bag with Penny’s clothing. (10RT 2106-2107.) While on the bus, appellant argued with another passenger. (1ORT 2107, 2134.) Appellant, Pearson and Armstrong exited the bus near Florence Avenueto transfer to another bus. After they were on the second bus, appellant noticed that Pearson no longer had the bag containing Penny’s clothing. All three men exited the bus at Grand, and then wentto appellant’s house on 69th Street.!> (1ORT 2134-2135.) Appellant then added additional details to his third version of events. Prior to doing so, he confirmed thattheinitial portions ofhis earlier third version of events were correct, i.e., the part about Gmur’s house,the portion about going to the Metrorail and Wardlowstation, and finally the part about walking east on Wardlow. (10RT 2137.) Appellant also. '> Detectives Prell and McMahon spoke with appellant about getting a court order for dental impressions from him, as well as from Pearson and Armstrong. The detectives told appellant that a test would show whether any sex acts had occurred with the woman. Appellant denied having sex with Penny, but admitted that he bit her once on the “chest area.” (ORT 2136.) 17 confirmed that he was on the north curb of Wardlow when Penny was on the south curb, and that she yelled the racial epithet at them. (1ORT 2137- 2138.) Appellant then further explained that, after the three men had crossed the street, Penny grabbed at him, andhebit her on the left breast in self- defense. After he bit her, Penny slapped him in the face. (LORT 2137- 2138.) Pearson then directed appellant and Armstrong to get Penny over the fence. (LORT 2138-2139.) Appellant repeated that he could not recall how they got Penny over the fence that ran along the freeway. (LORT 2142.) Pearson, and perhaps Armstrong also, had ordered Pennyto lie down, and she complied. (ORT 2139; 11RT 2169.) They were along the embankmenton the other side of the fence. Pearson told appellant to remove Penny’s shoes, and he did so. Appellant could not recall if Penny wore socks. Appellant then saw Pearson unbutton Penny’s pants. Appellant turned and walked up the embankmenttoward the freeway while carrying the shoes. He planned to throw the shoes on top of an adjacent building. (LORT 2139.) Asappellant walked up the freeway embankment, he saw that Penny’s pants were pulled down around her knees. Appellant was paying attention to several things as he was walking, and helost his footing and slipped, possibly on a tire. When appellant slipped, he fell a bit, and dropped one of Penny’s shoes. (LORT 2141-2142.) Appellant was angry about falling, 1.e., “it pissed him off.” (LORT 2144.) Appellant subsequently saw Pearson on top of Penny, moving up and down in a thrusting motion. Pearson was in a push-up position over Penny. She was on her back. Pearson got up, and then ordered Pennyto orally copulate him. (LORT 2142; 11RT 2188.) Detective Prell could not recall if 18 appellant used the word “rape.” Appellant watched and estimated that Pearson had intercourse with Penny for about a minute.'® It was after appellant fell that he saw Pearson get up and order Pennyto orally copulate him. (LORT 2143.) Appellant claimedthatit “was sickening to watch.” (1ORT 2145; 11RT 2188.) Appellant said that “he saw no injuries at that point.” (1ORT 2145.) Appellant, however, continued to be angry with Pennyfor hitting him earlier. He subsequently went over to Penny and punchedhertwice in the jaw with a closed fist. (LORT 2147; 11RT 2169, 2188.) Penny was on her back, and appellant was close enough to punch her. (LORT 2146.) He used the right side ofher body to support himself as he stood. (11RT 2171.) Penny reached out with her hand and asked for help. She used profanities, saying, “You mother fuckers.” Appellant did nothing to help her. He ignored Pennyas he stood next to her. Appellant saw that Pearson was looking for something. (ORT 2147; 11RT 2188.) Pearson wasstill in the area, but appellant was not clear regarding Pearson’s exact location. (1ORT 2146.) Armstrong then appeared out of the dark carrying a wooden stick.’ (LORT 2148.) The stick was 36 inches long and an inch and one-half wide. (11RT 2189.) Armstrong gave the stick to Pearson, who then usedit to hit Penny numeroustimes in the face. Pearson then stomped on Penny with his boots. (1ORT 2148; 11RT 2189.) The “Redwood”boots in appellant’s bedroom ‘6 Appellantinitially said that Pearson was the only one who had intercourse with Penny, and only for a short time prior to Pearson moving her and forcing herto orally copulate him. (1IRT 2191.) '’ Appellant found a brown,plastic grocery bag in the ditch nextthe embankment, inside of which he placed Penny’s clothing and one of her shoes. (LORT 2148-2149.) 19 belonged to Pearson, who wore them on the night of the murder. (11RT 2166-2167.) Appellant climbed over the fence with Armstrong and Pearson. Appellant looked back and saw that the wooden stick Armstrong had given to Pearson was protruding from Penny’s vagina. (1ORT 2149.) Pearson wasthe last person appellant saw with the stick. (1IRT 2190.) Appellant asked Armstrong to go back and get the stick. Armstrong refused. (LORT 2149.) Appellant then climbed back over the fence, went to Penny, and wrested or “jacked”the stick from her vagina. He hadto twist the stick to removeit. Penny was bloody. (1O0RT 2150.) Appellant made several inconsistent statements about the stick. He said that he threw the stick into the parking lot. Appellant claimed that he did so after he climbed over the fence and into the parking lot. Healso said that he gave the stick to Armstrong. (LORT 2150.) Later, appellant said that he threw the stick into a dumpster. (11RT 2190.) Appellant also said that Armstrong carried the stick while the three men walked across Long Beach Boulevard. He said that Armstrong carried the stick while Pearson carried the bag with clothes. They walked to the east side of Long Beach Boulevard. (LORT 2150.) Armstrong putthe stick into a dumpster behind the businesses on the east side of Long Beach Boulevard just north of Wardlow. The three men then boarded the bus and rode to Florence, where they switched to another bus. (LORT 2151.) Appellant said that he was wearing a short-sleeved, light brownshirt, darker brownpants, three-quarter length high, black leather shoes, and a black leather jacket. (LORT 2151.) The jacket he wore wasthe one that had been hanging behind the bedroom door. (1ORT 2152; 11RT 2165.) Theblack leather shoes also were in the bedroom. (11RT 2165.) Appellant also said he touched Pennythree times: once whenhebit her on the chest area, twice when he punchedherin the jaw, and a third 20 time when he checked herpulse to see if she was breathing. (11RT 2167, 2185.) He bit her on the chest before she was on the other side of the fence. (1 IRT 2168.) Appellant did not rememberbiting her anywhere else on her body. (11RT 2185.) After appellant completed this third unrecorded statement and added the additionaldetails, Detective Prell asked him to record a statement. (ORT 2152.) Appellant agreed, and then gave a 44-minute long recorded . statement, largely repeating his third unrecorded statement. (1ORT 2152; Exh. 29.) Transcripts of the recording were provided to the jurors. (1ORT 2156; Exh. 29A.) The tape recording wasalso played to jurors. (ORT 2159.) Appellant said that he had trouble sleeping becauseofthe vision of Penny’s hand reaching out to him. He told no one aboutthe incident. (11RT 2182.) He did not talk to Armstrong aboutit. All three men had been at appellant’s house on 69th Street after the incident, and theyleft their clothing there. Appellant threw awayhis shirt and pants, but the jacket and boots Pearson wore werestill at the house. (11RT 2183-2184.) Appellant began to cry. Pearson had threatened to kill appellant if he talked. (11RT 2186.) 5. The Autopsy Dr. Raffi Djabourian, a deputy medical examinerfor the Los Angeles County Coroner, had performed-approximately 1,000 autopsies at the time of trial. On January 1, 1999, he performedautopsy number 98-08891 on Penny Sigler’s corpse. Dr. Dj abourian’s procedure wasto first photograph the body, and,if there were clothes present, he would then examine the clothing. Next, he performed an external examination on the autopsytable. (10RT 1924-1926.) Finally, Dr. Djabourian would then perform an internal examination to search for evidence of injury or disease, and to collect 21 evidence. With respect to the instant case, there were no clothes to examine during the autopsy. (ORT 1926.) Dr. Djabourian explained the significance of several exhibits admitted at trial. Exhibits 1A through 1H consisted of photographs taken by the Coroner’s Office. Exhibit 1A depicted an abrasion to the lowerleft thigh. Exhibit 1B depicted an abrasion to the lower back. (LORT 1927.) Exhibit 1C depicted a long linear scrape on the left arm and elbow. Exhibit 1D depicted abrasions, scrapes, bruising, and contusions to the neck. Exhibit 1E depicted an eyelid with pinpoint hemorrhages. Exhibit 1F depicted an eyelid with pinpoint hemorrhagesand lacerations. Dr. Djabourian explained that a laceration, contusion, or abrasion was caused by blunt force traumatic injury. That meant that there was somekind of impact with the surface or a hard object. (LORT 1928.) Exhibit 1G depicted the back right hand with bruisingat the little finger. Exhibit 1H depicted the left hand with extensive bruising, lacerations, and tearing between the webs of the fingers. (LORT 1929.) Exhibit 2 consisted of front and back renditions of Penny’s corpse, showinginjuries to the right side of the face. (1ORT 1930.) The injuries were to the right side of the scalp, above and at the ear, with multiple lacerations from blunt force trauma. Theright ear was torn off. Theleft side of the face had injuries to the chin and cheeks, including some evulsions, i.e., where a part of the body gets separated from the rest. (ORT 1930.) There was substantial bruising on the front and back of the body, including the right shoulder, left shoulder and neck. There wasa bite mark on the inside ofthe left nipple. The right side of the abdomen had a rectangular abrasion. Both of Penny’s thighs revealed substantial bruising. The left thigh had bruising, abrasions and scrapes. Both lower legs had 22 smaller bruises. On the right thigh above the knee, there was a lesion or bite mark, similar to the lesion or bite mark onthe left breast. (1ORT 1931.) The back of the body showedbruising and abrasionsto the scalp and back. There were scrapes to the upper and lowerback, as well as abovethe left buttocks and hips. A microscopic examination revealed bleeding into the underlying tissues, suggesting that the injuries occurred aroundor just before the time of death. There wasnoindication thatthe bruising was from older injuries. Any hard object could haveinflicted the bruises. ‘(ORT 1932-1933.) Exhibits 3A through 3C wereidentified as pieces of a woodenstake. (ORT 1933.) These exhibits were consistent with Penny’s injuries,thatis, with the abrasions on the abdomen,thigh, and with the linear injury to the back. (LORT 1934.) Exhibits 4A through 4J consisted of postmortem photographs of Penny. Exhibit 4A depicted the front andleft side of the face with lacerations on the left cheek, forehead, scalp, mouth and chin. An abrasion to the right neck area wasalso visible. (LORT 1935-1936.) Exhibit 4B was similar to 4A, except that the white bone matter was visible. Also, the upper lip was folded back to reveal tearing inside the mouth. A tooth on the left side was uneven, which wasindicative of recent chipping or damage. Exhibit 4C depicted abrasionsto the right neck, and light yellow areas, which wereinsect bites. (LORT 1936.) Exhibit 4D showedlacerationsto the left face. Exhibit 4E showed the right facial area, with portions of Penny’s hair shaved, revealing lacerations and bruising to the right ear, cheek and neck areas, and the torn right ear injury. Exhibit 4F depicted lacerations to the top of the scalp. Exhibit 4G depicted contusions to the top of Penny’s scalp. (LORT 1937.) Exhibit 4H, taken during the autopsy of the neck muscles, showed evidence of hemorrhaging, more prominentonthe right side, with bleeding into the tissue. Dr. Djabourian dissected the neck muscles, but could not 23 tell if the injury was from blunt force trauma or manualstrangulation. (1ORT 1938.) Exhibit 4J depicted the broken cricothyroid bone, which was located under Penny’s larynx. (1ORT 1039.) Exhibit 5 was a rendition of the neck area, with several areas showing bruising. Some deeper muscles also showed hemorrhaging. (1ORT 1943.) The thyroid and lowercartilage of the larynx sustained horn fractures and showed evidence of hemorrhaging. Lacerations to the face and head were also depicted. (1ORT 1944.) All the injuries: shown in Exhibit 5 were sustained while Penny was alive. The petechia shown in Exhibit 1E was bleeding into the white of the eye. This could occur during manual strangulation, sudden heart attack or with some diseases. (LORT 1945.) The bruising to the right face could have been related to the petechia. Application of a woodenstake could have causedthis injury if enough pressure were applied. Petechia was not commonly the result of a hit or strike, but it could occur in that manner. (1ORT 1946.) Exhibits 6A through 6F were photographsof the genital area before and after the autopsy. (1ORT 1946-1947.) Exhibit 6A depicted bruising to both sides of the outer genitalia. Exhibit 6B depicted a laceration and some bruising to the external genitalia. Exhibit 6C depicted lacerations, abrasions andbruising to the perineum. (10RT 1947.) Exhibit 6D depicted two lacerations of the anus. Exhibit 6E was a post-autopsy photograph of the genitalia depicting areas ofprominent bleeding, which was indicative of pre-death injuries. Exhibit 6F depicted the internal genitalia, including the cervix, which had a laceration and bruising. (1ORT 1948.) The vagina near the cervix showedextensive tearing with some hemorrhaging. A splinter-type object was recovered from that area. Exhibit 7 was a rendition of the external genitalia depicting lacerations and bruising. (LORT 1949-1950.) There wasa laceration to the vaginalarea, 24 and a splinter was embeddedinto the vaginal tissue. There were lacerations to the anus, approximately four inches from the vaginal opening. The injuries to the genitalia and anus were from a foreign object. (LORT 1951- 1952.) A male penis could not have caused these injuries, except possibly in a very young child or a very elderly female. (LORT 1952.) Exhibits 3A through 3C (pieces of a wooden stake) were consistent with the aforementioned injuries, especially with respect to Exhibits 3B and 3C, which were smaller pieces and tapered. Exhibit 3A was quite large, and Dr. Djabourian could not exclude it, but Exhibits 3B and 3C were more likely. (LORT 1952-1953.) Dr. Djabourian opined that the injuries to the genital area were pre-death due to the amountof bleeding. All the injuries occurred within a very narrow time frame. (1ORT 1977-1978.) Exhibit 8 consisted of two envelopes each containing one wooden splinter. One envelope contained a small, two-millimeter splinter, and the other envelope contained a “somewhat larger piece of wood.” (LORT 1953- 1955.) Dr. Djabourian recalled the smaller splinter, but he did not know precisely from where the somewhatlarger splinter had been recovered. Dr. Pena had supervised Dr. Djabourian during the autopsy. It was possible that Dr. Pena had recoveredthe larger splinter. (LORT 1954-1955.) Dr. Djabourian wasable to specifically recall only the smaller, approximately two millimeter splinter. (LORT 1956.) Dr. Djabourian and Dr. Pena both examinedthe genital tissue. (LORT 1957.) Exhibit 9 was a depiction ofthe right, left, and front of the head. It showed multiple lacerations to the forehead, a scrape to the right side, the torn right ear, bruising, and scrapes and lacerations to the chin. (LORT 1957-1958.) The middle depiction showedthe front face, head, upper chest and neck areas. There were bruises and abrasions on the right side of the neck. There were lacerations to the left side of the cheek and left temple. 25 The chipped left tooth was also depicted. These injuries were consistent with the pieces of the wooden stake. (1ORT 1959; see also Exhibit 3.) The third depiction captured the left side of the face with bruising to the scalp and left cheek, lacerationsto the left forehead, and exposed bone on the upper left cheek. (LORT 1958-1959.) The injuries in Exhibits 7 and 9 appeared to be pre-death injuries. (LORT 1961.) Exhibit 10 was a depiction of additional horrific injuries noted during the autopsy. The skull bone was fractured onthe rightside,i.e., it was pushed and broken into several pieces. (LORT 1959.) Theright orbit, cheek bones and jaw were fractured and pushed inward. Several bonesat the base of the skull were fractured, including a long linear fracture. (LORT 1960.) The linear fracture reflected the application of significant force to the right side of the skull. The left lobes of the back and middle brain were bruised. These bruises were consistent with an injury to the base of the skull. The injuries in Exhibit 10 also appeared to be pre-death injuries. (1ORT 1961.) Exhibit 10 depicted the injuries that constituted the cause of death. While the bleeding wasrelatively minimal, tremendous traumato the brain tissue could have caused death in various ways. When the covering to the brain wastorn, the brain short circuited, which prevented normal functioning. Indeed, the instant injuries would have causedthe brain to stop functioning. The brain would have then been unable to send messages to the heart or lungs. This was one mechanism which explained the cause of death. (LORT 1962.) However, in this case, several mechanisms were involved. Dr. Djabourian could not determine which of the numerousterrible injuries had actually caused Penny’s death. The ultimate cause of death was multiple injuries to the head and neck areas. (1ORT 1963.) The head injuries would have been fatal relatively rapidly. (1ORT 1976.) Indeed, if Penny had been 26 hit in the head and neck with a big stick (Exh. 3), this could have rendered her unconscious, similar to a concussion, but far more severe. (LORT 1974.) The blunt force injuries were the predominant factors causing death, but it was difficult for Dr. Djabourian to exclude manual strangulation with possible asphyxiation. While there were no finger marks on the neck, a stick could have been squeezed onto the neck, or stomping on the neck could have caused asphyxiation. (LORT 1975.) Manualstrangulation did not necessarily leave fingerprints. (ORT 1976.) Exhibits 11A through 11D depicted the right thigh area. (LORT 1963.) The lesion to the right thigh (Exh. 11D) wasconsistent with a bite mark. Incredibly, there were 114 total wounds: 94 of which were external, and 20 of which wereinternal. It was difficult for Dr. Djabourian to conclude how long Pennylived during this brutality, but death would havebeenrelatively rapid, that is, within minutes of her injuries. (LORT 1964.) Dr. Djabourian likewise could not determine the order of her injuries. He did not count the fractures, but there were at least 10 to the skull and one to the rightrib. Therewere defensive woundsto the backs of the hands and forearms. There wasbruisingto theleft little finger, and to theleft handat the knuckles, to the wrists, and to back of the left middle finger. (1ORT 1965.) There were lacerations to:the web between the index and _ ring finger, and to the web betweenthe ring andlittle finger. These were defensive wounds. Other injuries to Penny’s hands could have been defensive, but Dr. Djabourian couldnot be certain. (1ORT 1966-1967.) The defensive injuries occurred while Penny was conscious. The other injuries posed a moredifficult question, i.e., as to whether they occurred during consciousness. Nothing about the other injuries demonstrated whether Penny wasconsciousat the time that they were inflicted. (LORT 1972.) Dr. Djabourian could determine pre-death injuries by noting the presence of bleeding, but he could not determine 27 consciousness. His strong opinion that someofthe injuries were pre-death wasbased on microscopic analysis of the tissues. (LORT 1973.) ASpreviously noted, it was very difficult to determine which injuries occurredfirst, but Dr. Djabourian opined that the sexual assaults very likely occurred prior to the injuries to Penny’s head. (1ORT 1977-1978.) The long linear scrape (Exh. 1C) may have been scraped along the sharp portion of a fence. Other injuries were consistent with being thrown overa fence, specifically the multiple abrasions. (1ORT 1967; Exh. 1B.) The petechia (Exh. 1E) was consistent with compression to the neck by someone wearing a heavy shoe. (JORT 1968.) Any blunt force could have been painful. The two bite marks showedbleeding into the underlying tissue, which meant that they were pre-death. The bites could have been close to the time of death. (LORT 1968.) The injuries to the genitals were consistent with blunt force trauma. The genital area was sensitive, with numerous nerve endings right under the skin. Dr. Djabourian believed that these injuries would have been extremely painful. The location of the splinters would have been very painful. (LORT 1971.) 6. The DNA Evidence Paul Colman,a criminalist with the Los Angeles County Sheriff Department’s Crime Laboratory, was primarily responsible for the forensic analysis of DNA evidence. (ORT 1979-1980.) DNA wasthe same throughout one’s life and throughoutall parts of one’s body. (LORT 1982.) DNAevidence had been used forensically since 1985. (LORT 1982.) Except for identical twins, everyone’s DNA was unique. (LORT 1981.) The DNAspecimensof brothers shared somepatterns, but were not identical. Criminalist Colman did not know whenhe conductedhis analysis that the two samples (from appellant and Armstrong) were from half-brothers. (LORT 2013.) On March 7, 2000, Colman received four reference samples and 12 unknown samples for analysis. (LORT 1986.) 28 Colman analyzed samples taken from several clothing items,i.e., overalls and brown pants (Exh. 12), and from a leather jacket (Exh. 13). (1ORT 1992-1993.) The parties stipulated to the chain of custody. (LORT 2031- 2032.) Criminalist Colman compared the samples from these exhibits to known samples from appellant, as well as from the other two co-defendants and Penny. (1ORT 1995.) Theleather jacket had a mixture of DNA, with major and minor contributors. (ORT 1995-1996.) Penny was a major contributor. Codefendant Armstrong was a possible donor for the minor types on the leather jacket. (ORT 1996.) The brown pants contained a DNA sample that was a clear match to Penny.'® (10ORT 1999.) Colman also swabbeda bite mark on Penny and analyzed that sample. (LORT 1999-2000.) This sample revealed a mixture with contributors from two sources. Based onhisscientific analysis, Colman concluded that the sample consisted of appellant’s and Penny’s DNA. (ORT 2000, 2006.) Based on twodifferent methods of calculation, each based on different assumptions, Criminalist Colman concluded that the bite mark was madeby appellant. The analysis demonstrated that it was 859 billion times morelikely that the bite mark stain consisted of material from Penny and appellant, rather than from Penny and a random Black man. (1ORT 2006-2012.) 7. The Prior Conviction Allegation Appellant waivedhis constitutional rights to jury trial on the prior conviction allegation. He thereafter admitted his prior conviction on December9, 1997, 1.¢., for attempted robbery (§§ 664, 211) in case number '8 Gary Harmor,a forensic serologist, also used DNAtesting to match the stains on the brown pants, the black leather jacket, the black “Guess”shoe, and the “Redwood”boots to Penny Sigler. (2RT 2114- 2122.) 29 NA030710. (12RT 2538.) Defense counsel joined, and agreed that there wasa factual basis for appellant’s admission. (12RT 2538.) B. Defense Evidence Appellant did not testify in his own defense. The defense did not put on any witnesses. (11RT 2267, 2280.) Indeed, during his opening statement, defense counselstated, “We are disputing some,but, basically, weare admitting guilt in this case as to most of these charges.” (LORT 1917.) Il. THE PENALTY PHASE A. Prosecution Evidence 1. The 1996 Prior Robbery” Mr. Cory Garrotestified that he and his wife Grace Garro were vacationing in Long Beach, California on December8, 1996. (12RT 2566.) The Garros went to dinner at Shoreline Village, and then walked back to their hotel along a boardwalk from Shoreline Village. As they walked, Cory Garro noticed three Black mento their left as they walked. (12RT ~ 2566-2567.) The three Black men came within 10 feet of the Garros, moving from their left side over to their right. Cory Garro suddenly felt a gun pressed into his chest, and one of the men demandedhis wallet. Two men moved behind him andlifted his jacket to remove his wallet, while the man with the gun remained in front of him. Garro’s hands were up. Grace remained to his side. (12RT 2567.) Out of the corner of his eye, Garro could see that one of the men grabbed Grace’s purse, causing her to scream. The Black man whowastrying to take her purse then gave up that effort, and all three " The parties stipulated to appellant’s prior conviction. (12RT 2671.) Exhibit 31 was a certified copy of that conviction. (12RT 2670.) 30 men fled the scene. They took Garro’s wallet, but were unableto take Grace’s purse. (12RT 2568.) A nearby security guard heard Grace’s screams. Thepolice arrived within a few minutes. (12RT 2568.) A short while later, Garro attended a field show-up that was about a five-minute drive from the hotel. He observed the show-up from a distance of about 47 feet, but.was unable to positively identify anyone. However, early the next morning, Long Beach Police Department detectives brought him a set of photographs to view, and Garro wasable to point out the person wholookedlike the Black man with the gun.” (12RT 2569-2570.) LBPD Detective Karl Movchanreceived a radio dispatchcall regarding the robbery just after dusk. While proceeding to the location, Detective Movchan saw a Black man running. This person matched the description of one of the suspects. (12RT 2572-2573.) Movchan was driving a black and white patrol car, which he then exited in order to confront the suspect. The suspect, who waslater identified as appellant, attempted to conceal himself by hiding under a parked van. (12RT 2574.) Appellantinitially refused to cooperate with Detective Movchan, but after another officer arrived, Detective Movchanpersuaded him to come out from under the van. After the witnesses were transportedto his location, appellant turned to Detective Movchan and spontaneouslystated, “I bet he said I wasn’t the one with the gun, didn’t he?” (12RT 2574, 2577.) Appellant then offered to take Detective Movchanto another suspect in exchange for leniency. (12RT 2577.) At appellant’s direction, Detective Movchan drove to a house in the western portion of Long Beach. The house was vacant. Appellantsaid that *° This person waslater identified as Reginald Wilson, appellant’s accomplice during the robbery. (12RT 2583-2584.) . 31 it was “Eddie” that they were looking for, and that maybe he had moved. (12RT 2578.) Appellant also told Detective Movchan about a man named “Chocolate,” but appellant wanted a deal before saying anything more. Appellant said, “But I wasn’t the one holding the gun.” (12RT 2579.) He wanted to be released. Detective Movchantold appellant that he would be booked for the crimes. (12RT 2579.) Appellant subsequently told Detective Movchan that he, Eddie and “Chocolate,” 1.e., Reginald Wilson, were walking near the boardwalk when Chocolate said, “Let’s get some.” To appellant, that meant to get some love from females, or something else that appellant failed to specify. Appellant told Detective Movchanthat as long as he did not have the gun, that he would be “all right.” When the accomplices told appellant to “break”after the robbery, appellant ran. Chocolate had the gunthe entire time. (12RT 2581-2582.) Appellant directed Detective Movchan to a second location, which was supposed to be Chocolate’s residence. (12RT 2580, 2583.) Chocolate wasnot there. Garro’s wallet was recovered near the robberysite by investigating officers. (12RT 2583.) At around 2:00 a.m. on December 9, 1996, Detective Movchan went to Garro’s hotel lobby to show him photographsof several suspects. (12RT 2569.) Garro identified Reginald Wilson as the man whohad held the gun to his chest. (12RT 2570, 2583.) Garro’s wallet was returned to him aroundthis time, but his money was missing from the wallet. Garro’s wife wasShaken andhysterical, and had been affected by the robbery eversince. She wasafraid to walk by herself at night, or in areas that she was unfamiliar with. (12RT 2570-2571.) 2. The 2006 Injury To Appellant’s Son On April 11, 2006, LBPD Officers Jacinto Ponce and Philip Cloughesy respondedto a 911 call from appellant’s residence in Long 32 Beach. (12RT 2586-2587, 2598.) The 911 call consisted of screaming, followed by a hang-up ofthe phone. (12RT 2626.) Officer Ponce had been to the residence several hours earlier, but was not sure regarding the exact time. (12RT 2587.) When Officers Ponce and Cloughesy arrived, they discovered that the 911 call concerned a child who had been stabbed. They observed appellant on the steps of the apartment holding a Kleenexto the leg of his four or | five-year old son. (12RT 2588, 2598, 2624.) Appellant repeatedly told the child to say that it was an “accident.” (12RT 2588, 2626.) Appellant continued to hold his son for this entire time. After the paramedicsarrived, appellant would not release his son, who had to be forcibly removed from appellant’s grasp. (12RT 2589.) The boy then reported to the police that his injury was an accident. (12RT 2598, 2619.) Officer Ponce also spoke to appellant about the incident. (12RT 2589.) Appellant initially said that he had keysin his pocket, and that the keys had stabbed the child. Officer Ponce consequently believed that there should have been blood on appellant, but none wasvisible. (12RT 2590.) Officer Cloughesy confirmed that appellant initially said that he only had keysin his pants’ pocket. (12RT 2625.) Later in the conversation, appellant changedhis story and said that his son was impaled on a knife after he (appellant) picked him up and rested him on his lap. (12RT 2592.) Appellant said that he had a knife in his front pants’ pocket with the blade facing upward. When herested his son on his lap, the boy’s left thigh was stabbed by accident. (12RT 2612.) After Officer Ponce advised appellant that he had no holesin his pants, al Appellant repeated (about four times) his commandto the boy to say that it was an accident. (L2RT 2589.) 33 appellant again changed his story. (12RT 2592, 2613.) Appellant then said that he had a knife in his front pants’ pocket for protection. Officer Ponce then read appellant his constitutional rights. (12RT 2592.) Appellant then gave another, final story concerning the kitchentable. Appellant said that he and his son had fallen on the table, causing the cut to his son. (12RT 2593, 2613.) Appellant had picked up his son,lost his balance, and fallen against the table. His son then ran to the bedroom screaming, and appellant saw that the boy was bleeding. (12RT 2600, 2613.) Appellant’s son had a large cut to his leg that appeared to be a knife wound, (12RT 2590.) The cut was on the back of his thigh. It was a bleeding puncture wound, not a slice. (12RT 2594, 2596.) Officer Ponce looked for a knife. He subsequently found a knife with a five-inch blade in a kitchen drawer. It had blood anda pieceof tissue on it, but had been “wiped.” (12RT 2592, 2594.) The knife was a steak knife, and Officer Ponce believedthat it had a serrated edge. (12RT 2596.) Officer Ponce smelled alcohol on appellant. (12RT 2598.) Appellant’s blood alcohol level tested at .10 percent, which was over the .08 legal limit for driving. (12RT 2598, 2618.) Officer Ponce inspected the knife, and also analyzed the pocket of appellant’s pants. (12RT 2615.) The pocket was not sufficient to completely conceal the knife. (12RT 2615.) Officer Ponce then arrested appellant, because he believed that appellant had intentionally stabbed his own son. (12RT 2614.) Meanwhile, Officer Cloughesy went to the hospital with appellant’s son. (12RT 2627.) The boy’s injury consisted of a puncture wound about two inches in diameter to the back ofhis leg, requiring stitches. (12RT 2628.) In the emergency room, appellant’s son told Officer Cloughesy that appellant had come homeandpicked up somethings. Appellant called the boy into the kitchen, where appellant physically lifted him up. Whenthe 34 boy wrappedhis legs around appellant, he felt a stabbing sensation and consequently screamed. Appellant then put him down, grabbeda tissue, and called 911. Appellant held him until the police arrived. (12RT 2629; 13RT 2821-2824.) Officer Cloughesy subsequently contacted Child Protective Services. (12RT 2630.) Officer Gary Hodgson wasa police officer with the Long Beach Police Department on April 11, 1996. (12RT 2642.) Officer Hodgson wentto appellant’s residence and assisted with the child cruelty investigation. He searched the residence and found a bloody knife with a five-inch blade inside a kitchen drawer. (12RT 2643-2644.) Thomas Rodriguez was a detective with the child abuse detail of the LBPD in 1996. The day after appellant’s arrest, Detective Rodriguez questioned appellant about the injury to his son. (12RT 2645, 1249.) Appellant said that it was an accident. (12RT 2651.) Appellant explained that, initially, he had been arguing with his wife or girlfriend, and was gathering items to leave the residence. (12RT 2646.) Detective Rodriguez wasnotcertain, but he thought the woman’s name was TiyaryeFelix. (12RT 2651.) Appellant said that, at the time of the stabbing, he had asked for permission to kiss the two children. (12RT 2646.) Appellant had a knife in» his pocket with the blade pointing upward. Helifted the two children, and placed them on his hips. (12RT 2647.) Appellant was standing, and he then walked into the kitchen and sat down. The knife poked appellant, causing him to shift his position. He then said goodbye, and put the children down onto the floor. His son then cried out, because his leg was cut. Appellant’s wife then came into the kitchen, and they put gauze, Kleenex, andtoilet paper on the wound. His wife then called 911. (12RT 2648.) 35 Appellant told Detective Rodriguez that he hadinitially lied to the police because he was scared. (12RT 2649.) Detective Rodriguez asked about the pants that appellant had been wearingat the time that his son was injured. Appellant was actually wearing the same pants, and there were no holes in them. (12RT 2649-2650.) 3. The Events Just Prior To Penny’s Murder Monte Gmurlived on Cedar Avenue in Long Beach on December29, 1998. He had a music studio in his home, and wasan acquaintance of appellant. (12RT 2652-2653, 2656.) Appellant went to Gmur’s house in December, 1998 in the early evening, around 6:30 p.m. (12RT 2654, 2655.) Appellant arrived with his brother Jamelle, Kevin Pearson and another man. They wanted to work in Gmur’s studio, which Gmurpermitted them to do. After about 45 minutes, appellant left Gmur’s house. (12RT 2655-2656.) Appellant returned with three bottles of alcohol: “Cisco,” “Thunderbird” and “Night Train.” (12RT 2657, 2659.) Appellant mixedit together and drank part of it with the others. They were at Gmur’s house three to four hours total. (12RT 2656.) During this time, Gmurwas in another part of the house for two and one-halfto three hours. He wasnotin the studio unless there was a sound problem. (12RT 2660.) After three to four hours, all four menleft, but then returned within about 20 minutes. They returned tomake a telephonecall, and asked to use Gmur’s telephone. (12RT 2657.) Appellant spoke clearly, and Gmur could understand appellant’s speech just fine. Appellant walked without any problems. (12RT 2658.) There were somesignsof intoxication,i.e., the four men were loud, but they were not staggering. Gmurbelieved that they had been drinking. He saw appellant drinking, but did not know how much he drank. Whenthe four menleft, all the alcohol bottles were empty. (12RT 2660-2661.) 36 4. The Impact Of The Murder On Penny’s Son Ted Keprta Ted Keprta, Penny’s son, testified during the penalty phase. (12RT 2662.) Exhibits 30A through 30D were four photographs that includedhis mother. Exhibit 30A washis parents on their wedding day. Exhibit 30B was a Shot of Ted and his mother onhis fifth birthday. Exhibit 30C was the family together on Thanksgiving. Exhibit 30D wasa photograph of Penny and Ted in their backyard. (12RT 2663.) _ Ted was 16 years old when his mother was murdered. He hadjust started high school. Normally, she was home every day when he returned from school. After her death, numerous holidays had passed. It wasreally tough without his mother. Ted was not accustomed to coming home from school to a quiet house. After school, they used to talk about his school day. | After Penny’s death, it was rough without her, because the house was empty. Ted had no brothersor sisters at home. He did not complete high school because he lacked the motivation to finish. (12RT 2664-2665.) Tedstill resided in the same house where he hadlived with his mother. (12RT 2665.) They had lived there for about five years prior to her death. (12RT 2669.) Penny did special thingsfor Ted at Thanksgiving and Christmas. She prepared dinners for him. Penny was notthe best cook, but she always put forth an effort. (12RT 2665.) Recently, when thefamily celebrated Thanksgiving, Ted thought of his mother. He thought of her every Christmas, because the murder wasclose to the holidays. Hefelt angry, upset and enraged, (12RT 2670.) Ted’s mother did the best she could for Ted andhis father, who also still lived in the same house. (12RT 2665.) Currently, Ted’s father was homeduring the day. In the past, he was occasionally there when Ted got home from school, but many times he was at work. Ted always got along 37 better with his mother than his father. Ted could talk with his mother, but not his father. (12RT 2666.) Ted attended his mother’s funeral. It was very rough. He learned about his mother’s murder when a detective knocked on their door. (12RT 2666.) Prior to his mother’s murder, Ted had ajob. After her death, he lost interest and quit. He had just recently begun working again, and had been working for about four months. His mother’s murderwaslargely to blame for his prior failure to work. (12RT 2667.) Ted planned to go to high school or earn a G.E.D. He wasstill emotionally impacted,i.e., sad and lonely. He and his mother shared the same birthday, which was on March 5th. On the birthdays following his mother’s murder, Ted kept to himself. He said nothing, did not celebrate, and locked himself in his room. (12RT 2668.) Ted thought of his mother daily, and was very angry. He was somewhatrelieved by the verdicts, but not really, because they did not bring his mother back. (12RT 2669.) B. Defense Evidence Appellant did not testify in his own defense. (11RT 2267-2268.) 1. Appellant’s Family Life And History Pamela Armstrong, appellant’s mother, testified on his behalf. Codefendant Jamelle Armstrong was her second son. (13RT 2770.) By the time oftrial, appellant was 25 and Jamelle was 22. Hersons had different fathers. Pamela was 19 when she became pregnant with appellant. She was not married to his father Henry Hardy. The couple had been together three years, but had then broken up. Pamela becamejealous after discovering that Henry was having a baby with another woman. She wanted a baby as a meansto get back together with Henry. (13RT 2771.) Consequently, she becamepregnant on purpose. However, her plan did not work, and Henry abandoned her and appellant. (13RT 2772.) 38 While pregnant with appellant, Pamela had daily stress. After she told Henry about her pregnancy, he denied paternity. Pamela’s mother threatened to cut appellant out of Pamela. (13RT 2790.) When appellant wasborn,he had birthmarksall over his body. Additionally, one of appellant’s eyes turnedin to the side, such that only the white of the eye wasvisible when he looked at someone. He had eye surgery when he was in kindergarten or elementary school, but he still had lingering problems with that eye. (13RT 2772-2773.) Pamela married James Armstrong when appellant was one yearold. Before marrying James, Pamela lived with her mother in Pasadena. Appellant was clumsy from ages two through four, but sweet and loved. (13RT 2773-2774.) He wasinitially a happy baby, but with James in the picture, things changed. When appellant was about two years old, James jumped on Pamela andbeatherup around the Fourth of July. Pamela suffered a black eye and bruising as a result of that incident. (13RT 2775- 2776.) Whenappellant was older, Pamela becamesuspicious of James, because she found needles and a powdery substance-in their home. She suspected that James was on drugs. He would not keep a job, and only worked sporadically. (13RT 2777.) Mostly, James was unemployed. James and Pamela argued constantly about money, food, and the children. Appellant was present during many of the arguments. (13RT 2777-2779.) Appellant attended kindergarten while Pamela worked. Sheleft at 5:00 a.m., and returned homeat 5:00 or 6:00 p.m. (13RT 2778.) Other people watched appellant during this time. When appellant was fourorfive years old, Pamela gave birth to Jamelle, but there was no improvementin their lives. (13RT 2780.) Pamela and James continued to argue, and she drank heavily. Initially, things were good between appellant and James. Appellant and Jamelle also played together regularly. (13RT 2780-2781.) 39 Unfortunately, appellant had to repeat kindergarten. He had problems learning and wrote things backwards becauseofhis eyes, i.e., one eye would see things straight and the other eye would overlook what the straight eye was seeing. Appellant had poor writing skills and the schools never corrected it. (13RT 2781.) His learning disability was not tested or investigated. (13RT 2801.) Appellant liked others and wasfriendly, but other people shied away from him. Nevertheless, appellant tried hard to make others his friends, which sometimes pushed them away. After his eye surgery, his clumsiness improved,buthestill had learning problems. (13RT 2782.) The two brothers got along well, but James treated the boys differently. At first, he took both boys out together, but then he began taking only Jamelle. It was like “Cinderella” when appellant wasolder. (13RT 2783.) It was “pure hell.” They went to church because Pamela wanted something better. She was afraid that her sons would be taken away from her. (13RT 2784.) Appellant liked church, and was involved in Sunday school, choir, picnics, and plays. (13RT 2788.) | Pamela and James continued to drink and use drugs. James would break in and steal from the family. (13RT 2784.) Pamela’s own drinking worsened. She was afraid of James andhis physical abuse. James waslike Tarzan or a roaring lion. He once bit out a chunk of Pamela’s arm. (13RT 2785.) Pamela drank to inebriation weekly. There was physical abuse that still haunted her. Appellant and Armstrong werein the vicinity of the abuse. Pamela took her sons into the bedroom if she thought that abuse might occur. (13RT 2786.) When appellant was older, he tried to intercede between James and Pamela. In fact, when appellant was about 11 and one-half years old, he told James not to hit her. (13RT 2788.) Sometimes appellant tried to hit James. Appellant turnéd away from James, and did not want to hang out 40 with him as much. Consequently, he would go outside with other kids and would always be getting in trouble. His grades, which were alwaysbad, became worse. Heincreasingly stayed away from home. (13RT 2789.) By the time appellant was 13 years old, he did not wantto attend school or do what he wastold around the house. (13RT 2794.) The situation between appellant and James was bad,i.e., he did not want to listen to anything that James had to say to him. Appellant was unhappy and . would notlisten to anything or anyone. By the age of 13, he spent his time with gang members. (13RT 2795, 2804.) Appellant attended school up to the tenth grade, but then quit. (13RT 2805.) Appellant did attend some counseling at the church, but he suddenly did not want to go any longer. (13RT 2796.) At the age of 16, appellant ran away. He wanted to commit suicide. The police brought him back home. Appellant said that he wanted to die because no one cared about him. (13RT 2797-2799.) Pamela never sought professional help for appellant. (13RT 2802.) At the age of 19, appellant reported that, when he was 13 years old, he had been molested after a pastor had taken him home. (13RT 2796-2797.) According to Pamela, when appellant was 19 or 20 years old, and after he had been drinking, he hada terrible argumentwith his girlfriend Tiyarye Felix. He was violent and called her names. Then he wentinto the middle of the street because he wantedto get hit by a car. (13RT 2800, 2808, 2818.) This was the only time Pamela ever saw appellant act violently. (13RT 2815.) Felix already had two children when she met appellant, and they had two more children together. Appellant lovedall four children, and treated them as equals. (13RT 2813.) On cross-examination, Pamela said that she had taught appellant right from wrong. She taught himthat it was wrongto rob,rape,orkill. Appellant knew that it was wrong to commit crimes or violate the law. 41 (13RT 2805, 2811.) Appellant also learned right from wrong at church. (13RT 2810.) At one point, appellant wrote his mothera letter indicating that he would rather hang around with gang membersthan go to school. (13RT 2806.) Pamela did not allow appellant to bring gang members in the house. (13RT 2811.) Tiyarye” Felix met appellant when he was 18 years old. She was a few monthsolder than him. Felix had two sons from priorrelationship, who were three and four years old respectively when she met appellant. (13RT 2818-2819.) They had been together approximately four years prior to the instant murder. (13RT 2838.) After appellant moved in with Felix, the couple lived together in Long Beach. They had two sons together. At the time oftrial, appellant’s sons were five and six years old. He was a loving and caring father andtreatedall four boys equally. All four called appellant “Dad.” (13RT 2821.) Both Felix and appellant received welfare benefits. (13RT 2838-2839.) Felix was there whenher son wasstabbed. During that incident, she had foughtwith appellant, who had been drinking. Consequently, she told him to leave. Appellant then took their son into the kitchen to explain the situation. Felix heard a scream, and saw herson bleeding. (13RT 2822.) She talked to her son immediately, and the boy said that it was an accident. The boy said that he was on appellant’s lap when the knife cut through the pants to the back of his leg. The boy’s story never changed. (13RT 2823- 2824.) Felix and appellant lived together in Long Beach,andthenlater they resided together in Los Angeles. Appellant worked intermittently. His last job wasregistering voters. (13RT 2824.) When appellant was sober, he ~ was sociable. However, when he drank, the couple argued. Appellant 2 “Tiyarye”is also spelled as “Tiyarie”in the record. (13RT 2818.) 42 would black out or pass out, and remembervery little afterwards. Sometimes he was violent. He would push and shoveFelix, but he did not strike her. On one occasion, the violence was so bad that Felix called appellant’s probation officer. Appellant had shoved her on twoorthree occasions. (13RT 2825-2826, 2841.) He was never violent with the children. (13RT 2841.) Felix admitted that she had discussed her testimony with the defense attorney prior to taking the stand. (13RT 2842.) There were continuing problems with appellant’s mood and behavior. He was easygoing, except when he drank. Something “clicked” when he drank, and then he became violent. Appellant knew that he becameviolent when hedrank, but he still drank anyway. (13RT 2832, 2840.) In November, 1998, the couple fought, and as a consequence, Felix asked appellant to stop living with her. This argument happenedjustprior to appellant’s arrest. (13RT 2845.) Appellant moved out, but then began to visit more frequently. He often stayed until the children wentto bed, and then left. (13RT 2846.) In 1996, appellant tried to kill himself. (13RT 2834.) On that occasion, the couple had been arguing. Appellant suddenly put a cord around his neck andpulledit tight. He wentto the closet and pretended to be dead. He was there about an hour. Felix finally called the paramedics after appellant repeatedly refused to get up. (13RT 2835.) Again, in 1996, after drinking heavily, appellant threatened to commit suicide. He put a gun to his head andtold Felix to give his car to Jamelle. (13RT 2836.) Felix stated that the gun belonged to appellant’s friend. (13RT 2852.) On Thanksgiving Day in 1997, the couple attended a family get- together. Felix and appellant argued during this event. Felix subsequently wentto the car. Appellant followed her and pushed her. He threw himself in front of the car. He wantedto go to jail. (13RT 2833.) Appellant’s mother cameout to get him, and Felix left the scene. (13RT 2933.) 43 The couple had a healthy sex life. They did nothing perverted. Felix said that appellant got along well with his half-brother Jamelle. (13RT 2827.) Felix bought appellant the jacket that he wore on the night of the murder. (13RT 2847.) According to Felix, appellant was a follower. He never led anyone except the children, who “looked up” to him. Felix met codefendant Pearson twice. Usually, she did notaffiliate with appellant’s friends. (13RT 2828, 2830, 2853.) Felix knew that appellant was a gang member. His gang involvement came aboutthroughhis half-brother Curtis. (13RT 2828.) Appellant was knownin the gang as “Little No Good.” (13RT 2844.) Appellant tried unsuccessfully several times to contact his biological father. (13RT 2829.) 2. Appellant’s Work And Church Activities AlbertScales was the overseeing bishop for Victory Center Community Churches of Visions Anew Community. He was a pastor, and had known appellant since he was four or five years old. In the past, Scales saw appellant and his family two to three times a week. Appellant was a cute little kid, lots of fun and “really no problems.” (13RT 2863-2864.) Appellant’s family lived close to the church. Scales knew that there were drinking problemsin the family when appellant was a child. (13RT 2865.) Scales counseled appellant’s mother and stepfather James for over 20 years. (13RT 2866-2867.) James was unemployed. Helived on street called the “alley,” where drugs, violence and gang activity were commonplace. (13RT 2867.) Pamela worked, but continued to drink. James was involved with drugs, and would cometo church underthe influence. The kids were not cared for that often. James was jealous ofPam and did not take care of appellant very well. (13RT 2868.) Spousal abuse occurred in the relationship. (13RT 2870.) On one occasion, James cameto the church and pulled Pamela outside. Scales opined that “there was some violence 44 there,” and “lots of verbal abuse, pulling on the child, that type of thing.” (13RT 2872-2873.) Appellant was one of the better behaved children in the church. When appellant was older, Scales learned that appellant was involved with gangs. Scales notified Pamela, and counseled appellant to avoid the gangs. Appellant showedScales respect and listened to him. Scales never had one problem with him. (13RT 2869-2870.) Scales never saw appellant act in a mean-spirited manner. (13RT 2872.) However, when advised of appellant’s crimes, Scales admitted that the facts underlying those crimes changedhis opinion of appellant. (13RT 2880.) Mr. James Johnson knew appellant because Johnson worked with appellant’s mother Pamela. (13RT 2751-2752.) Johnson wentto appellant’s house for Christmas dinner. Pam was a good cook. Appellant was 12 or 13 years old when Johnson met him. Later, they becameclose. Whenappellant was 18 years old, he participated in a training program instructed by Johnson. At that time, Johnson was an instructor and job developer with the Century Community Training Program. The program found men in the neighborhoodand taught them construction skills. (13RT 2752-2753, 2760.) Appellant participated in the program and completed the course. He wasdifferent from others in the program. Appellant only did what he was told to do. He lacked initiative to complete a job. (13RT 2753.) Johnson pushedappellant, who wanted to learn, although he neededa little more help than others. However, appellant was always present when Johnson was doing a job, watching what Johnson was doing andtrying to learn from him. (13RT 2754.) Johnson continued his relationship with appellant after he completed the eight-week program. Appellant seemed to want a job because he had two children. Appellant had no car, and that madeit very difficult. (13RT 45 2754-2755.) Johnson met appellant’s wife. He obtained a refrigerator and a stove for them. Johnson had a businessinstalling low-flow toilets. It was a small business, and appellant worked daily for Johnson for about a yearin 1994 and 1995. (13RT 2755, 2758, 2761.) Johnson either picked appellant up for work, or appellant rode the bus. (13RT 2755.) Appellant worked well. He watched other workers and learned. However, appellant never madethe first move. Johnsontried to get appellant to take the initiative, but appellant was more of a follower than a leader. However, after he had been working for Johnson’s company for a while, he learned the routine and would takethe initiative to do things on his own. (13RT 2756.) Johnson’s company subsequently went out of business. (13RT 2765.) Johnson did not contact appellant when Johnsonstarted a new business because the new jobs required greater skills than those possessed by appellant. Appellant was a good worker, buthis only skill wasinstalling toilets. He did not know plumbing. (13RT 2766, 2768.) Appellant had no alcohol problems on the job, but Johnson opined that he had alcoholic tendencies. (13RT 2757.) 3. Forensic Expert Testimony Dr. Gordon Plotkin was a medical doctor who earned his B.S. and Ph.D. in biochemistry from the University of California, Los Angeles. He earned his medical degree from the University of Miami, and completed his residency in psychiatry at the University of California, Irvine. (12RT 2677- 2678, 2688-2689.) Dr. Plotkin was able to work for both the prosecution and the defense in criminal cases. (12RT 2689.) Dr. Plotkin examined Penny’s medical records. (12RT 2689.) The records included a toxicology report from the medical examiner. (12RT 2690.) Dr. Plotkin had never questioned Penny or even spoken with her while she wasalive. (12RT 2700.) The parties stipulated that the autopsy 46 report showed that Penny’s blood levels included .73 microgramsper milliliter of methamphetamine, and a .22 blood alcohol content. (12RT 2690.) A methamphetaminelevel of .73 was not a huge amount, but it was enoughto have an effect. A blood alcohollevel of .22 was a significant level. (12RT 2691-2692.) Dr. Plotkin also examined the autopsy report and Penny’s medical records, which included an admission to the hospital in May, 1998. (12RT 2690.) Penny’s diagnosis at the time of her admission in May, 1998 was adjustment disorder with depression. Dr. Plotkin considered Penny’s symptoms, as well as other medical opinions. (12RT 2692, 2701.) There were different levels of depression: major and dysthymia, which wasa reaction to life. (12RT 2692.) The adjustment disorder was like stress. There wasstress in paying property taxes, but most taxpayers did not end up in a psychiatric hospital. (12RT 2701.) In Dr. Plotkin’s opinion, Penny wasnot adjusting in a healthy way. (12RT 2693.) Dr. Plotkin was able to speculate regarding certain aspects of the evening of the murder. There were a host of methamphetamine and alcohol symptoms. A .22 blood alcohol content level for a chronic alcoholic could be a functional level. Someone unaccustomedto alcohol use would be stumbling at that level. (1L2RT 2693.) The autopsy showed that Penny’s liver was normal. (12RT 2703.) Alcohol was a central nervous system depressant. It was not a mood depressant. (12RT 2701.) The effects of alcohol typically became amplified if the user was depressed. (12RT 2706.) Methamphetamine was a stimulant and was highly addictive. (1L2RT 2693.) It was “180 degrees” different from alcohol, but there was no balancing effect between the two. (12RT 2702.) Methamphetamine wassimilar to the caffeine in coffee, exceptthat it was many times more potent. Over-the-counter precursors to 47 methamphetaminecausedirritability, jitters and sleeplessness. These symptoms were multiplied by the use of methamphetamine. (12RT 2494.) A stimulant increased aggression. (12RT 2704.) A combination ofall three factors, i.e., a disorder, methamphetamine, _ and alcohol, could result in poor impulsivity. (12RT 2494.) After a few drinks, a person became “lubricated.” For example, if a person saw someone on the street who looked peculiar, a normal person would not say anything to them. A person underthe influence would, or might, comment. (12RT 2695.) Penny, being high on methamphetamineand alcohol, was probably more sedated. She could have suffered a loss ofjudgment. (12RT 2705.) Dr. Plotkin did not know if Penny was sedated or aggressive on the night of her murder. He simply extrapolated based on her blood alcohol content level of .22. (12RT 2705.) Dr. Plotkin considered a hypothetical situation where Pennyfirst saw the three young, Black defendants, and then allegedly madethe racial epithet, “Fuck you niggers.” Dr. Plotkin could not opine whether Penny might have said somethinglike that if she was under the influence. He could not speculate about the methamphetamine and alcoholeffects. (12RT 2695.) However, a disorder could cause a racial epithet if a person were prone to such epithets. (12RT 2696.) Stimulation causes aggression, irritability and possibly even violence. With respect to alcohol, a person would be morelikely to fight and have poor judgment. Dr. Plotkin admitted that the disorder Penny suffered in May, 1998 was not necessarily the same as any disorder she may have experienced in December, 1998. (12RT 2696-2697.) Dr. Plotkin reviewed appellant’s medical records, which did not reveal the presence of any major mental disorders. (13RT 2861.) He considered appellant’s alcohol abuse in conjunction with a report that he 48 may havebeen intoxicated at the time of the murder. Dr. Plotkin also reviewedtranscripts of the interviews taken on January 7, 1999, as well as the investigator notes, and other LBPDreports. (12RT 2697.) Appellant may have been impaired. Appellant’s comments about missing parts of his memory wereself-reported without verification. The void could have been part of an alcoholic blackout. Three bottles of alcohol could be evidence of being underthe influence if one drank enough of the mixture. Dr. Plotkin opined that appellant drank only for intoxication. (12RT 2698.) Dr. Plotkin further theorized that, on the night of the murder, appellant was intoxicated to the point that his memory was missing. He called it “twilight sleep”intoxication. The effects were the same for appellant as for Penny. Appellant’s judgment could have been impaired. (12RT 2699.) However, appellant initially remembered some details regarding the night in question, and continued to disclose moredetails in the later interviews. (13RT 2856-2858.) When there was a “blackout,” there were no memories. The fact that additional information continued to be disclosed throughoutthe later interviews implied that appellant was lying. It was also possible to “float” in and out of the “blackout” state. (13RT 2858.) Events with a strong stimulus were morelikely to be remembered, such as beating the victim, or committing a rape. Events below certain threshold could occur without memory. (13RT 2858-2859.) It was similar to surgery,i.e., as it lightened, the person awakened. (13RT 2860.) Dr. Plotkin opined that there was a relationship between drunkenness and violence. A person who wasproneto violence could misread the circumstances, (12RT 2699-2700.) Also, there were changes in impulse control. It was like pouring gas onto a fire. Amnesia was possible. (12RT 2700.) However, Dr. Plotkin indicated that the prosecutor’s hypothetical, 49 which resembled the facts of the instant case, were inconsistent with a blackout, particularly because appellant remembered so many mundane details about that evening, such as getting on the bus. (13RT 2859-2860.) Dr. Carl Osborn wasa forensic psychologist. (13RT 2906.) He had been a therapist for 15 years, and was on the superior court panel. Dr. Osborn wascontacted two yearsearlier to evaluate appellant for issues that could be addressedat the guilt and penalty phases. (13RT 2907-2908.) Dr. Osborn worked with appellant for about a year and one-half, for more than 40 hours, and examined him 13 times. Dr. Osborn obtained in-depth information about appellant from the date of his birth to the time ofthe instant murder. (13RT 2908-2909.) He had reviewed the “murder book” prepared by the prosecution team. (13RT 2910.) Dr. Osborn had reachedthree conclusions regarding the instant crimes. First, the crimes were completely out of character for appellant if he had been sober. (13RT 2911, 3020.) Second, appellant had actively participated, but was dominated by the codefendants. Third, it was a crime of “passion,” because appellant was intoxicated. Intoxication played a significant part in the events. (13RT 2911-2912.) Appellant had no known prior sex offenses or instances of “extreme”violence. If appellant drank, he “clicked.” He pushed, shoved or becamesuicidal. (13RT 2954.) Dr. Osborn theorized that, from birth through childhood, appellant wasa tool used by his mother to win back his father. For example, when appellant’s mother was in high school, she learned that a friend was pregnantby appellant’s father. (13RT 2912.) She then decidedto get pregnantalso. For the father, it was merely a “fling.” He refused to acknowledge appellant. Appellant’s father abandoned them,joined the military, andprovided nothing for them. (13RT 2913.) Appellant had not seen his father in 20 years, until the father visited him in jail. Appellant said that his father was a “phony.” According to 50 appellant, it was toolittle, too late. (13RT 2915.) Additionally, when appellant’s mother was pregnant with him, his grandmotherthreatened her. She madeaccusations about whothe father was, which led to shame and embarrassmentfor appellant’s mother. About four or five monthsafter he was born, appellant’s mother allegedly attempted suicide by overdosing, and had to have her stomach pumped. (13RT 2916.) | Appellant had birth defects, i.e., his eye turned inwards and he saw everything upside down, which required corrective surgery at an early age. (13RT 2916.) He always had trouble learning. Neither his mother nor the school addressed appellant’s learning difficulties. He repeated kindergarten. Everyone“failed” appellant. Although federal law required an individualized program, one was not provided for appellant. He continued to fail, and did not learn properly. (13RT 2917-2918.) Appellant’s stepfather, James Armstrong, entered appellant’s life when he was about one year old. James was a poor role model. His friends were gangsters. He was a heavy drinker and drug user. Appellant’s mother drank throughout her pregnancy, and drank heavily when appellant was two to three years old. It was a household of substance abusers. Appellant’s mother Pamela admitted that it affected her ability to parent. James admitted that there was domestic abuse. He was physically abusive. James beat Pamela every other day over a long period of time. (13RT 2919-2920.) During Dr. Osborn’s interviews, appellant broke down andcried at least six times. The first time was when they discussed the fact that his stepfather James beat his mother. In response, Pamela was generally passive andjust cried. Appellant’s job was to comfort her. (13RT 2920.) Appellant became a caretaker to his mother. However, his mother generally sided with James, and appellant received the blame. This started whenhe was young, aboutthe time that his mother started drinking. 51 Appellant had no support, which wasa life long theme. Appellant believed that he was a burden that James did not want around. (13RT 2921-2922.) Dr. Osborn only received appellant’s records for the seventh grade. Appellant dropped out of school duringthe first term of the tenth grade. (13RT 2922.) Appellant’s grades were D’s and F’s. He earned an A in physical education and in somesports, but academically his grades were terrible. His achievementtests were at a sixth to eighth grade level, maybe ninth. In most areas, appellant was in the lowest 20 percent. During one three year period, however, appellant received one-on-one mentoring, and consequently did very well. He earned A’s. (13RT 2923.) Appellant desperately sought a role model, which was very important fora young §- male. (13RT 2924.) Appellant regularly witnessed violencein his daily life. His mother and stepfather were violent. He lived in a very violent area. He saw a man gunned downin front of his house. Appellant’s aunt was raped. His mother and aunt, while intoxicated, were involved in a knife fight. (13RT 2926, 2930.) James reported that the family lived in the Carmalitas project from 1989 to 1995. The children saw several killings, including police shootings. The area was a drug haven with a proliferation of weapons. This constituted the daily environment that appellant grew accustomedtoin his life. (13RT 2930.) Appellant’s family experienced the effects of drug and alcohol addiction. His alcoholic maternal grandparents died from liversclerosis. His mother Pamela became an alcoholic when appellant was twoyears old. James was on the streets with women shooting dope. James attempted a recovery in 1999. (13RT 2931-2932.) Alcohol dependence had genetic and social factors. The Diagnostic and Statistical Manual (DSM) recognized a familial pattern of 40 to 60 percent of variance of risk could 52 be explained by genetic factors. Appellant was an alcoholic. He had the genetics, as well as the environmental factors. (13RT 2932-2933.) Duringhis entire life, appellant never felt like he belonged anywhere. Hedid notfit in at homeor at school. He was a small, poor student. He was picked on by others. He dressed poorly, was ashamed, and searched for a place to fitin. (13RT 2933.) At ages 12 and 13, he showed athletic talent. He was fast and played football. He also was involvedin choir, and had a deep baritone voice. (13RT 2934.) | Appellant claimed that he was molested by a pastor when he was 13. Thesituation began astheresult of a conflict between football and choir. The pastor told appellant that, if he chose choir, they would go on daytrips to Disneyland. (13RT 2935.) Appellant hated being at home, and he spent several nights with the pastor, during which time the molestation occurred. Appellant’s mother subsequently learned of the molestation. Appellant cried when he told Dr. Osborn about the molestation. (13RT 2936, 2939.) Prior to the molestation, appellant had tried in goodfaith to find a healthy place with healthy people. After being molested, he began a downwardspiral. (13RT 2941.) Appellant “hid” behind alcohol, and became involvedwith the Scottsdale Piru Bloods gang. This gang provided him a different type of home. Appellant had a perverse kind of worth within the gang. (13RT 2942.) Dr. Osborn administered certain tests to appellant, and determined that his I.Q. was 83. An1.Q. of 70 represented mental retardation. Appellant wasin the thirteenth percentile, which meant 87 percent of people scored higher than appellant. Consequently, people could “trick” appellant. (13RT 2943.) I.Q. testing was completely revised in 1997, with changes to the sample size and norm. Certain circumstancesat the time of testing, such as sleeplessness and depression, could affect the results. (13RT 2999.) 53 Dr. Osborn opined that appellant was dominated by the other two defendants. (13RT 2952.) People who knew him,such as Albert Scales (the family pastor), James Johnson (appellant’s former employer), and Tiyarye Felix (his girlfriend), said that appellant was a “follower.” (13RT 2952.) On the street, one needed “horsepower,” and appellant did not have it. (1I3RT 2944.) Dr. Osborn opined and speculated at length regarding appellant’s psyche. Hesaid that appellant’s urge to fit in was desperate. The gang became his only family and structure. Appellant was an “also ran,” which meantthat he did what he wastold to do by others. The same wastrue with the instant offenses. (13RT 2953.) However, Dr. Osborn admitted that appellant did receive some support from his father. While he wasin the service, Henry Hardy (appellant’s father) sent $250.00 a monthto his grandmotherto assist with the expenseofraising appellant. (13RT 3014- 3015.) According to Dr. Osborn,at the time of the murder, appellant was driven by emotion, not thought. He was drunk. He had been drinkingall day, beginning in the morning. Theracial slur wasthe precipitating event. Whenthe victim yelled “nigger,” it was aggressive, causing appellant to “click.” If appellant had been alone, Dr. Osborn opined that there “probably” would only have been punching directed against the victim. The instant offenses were “different” from the way that appellant normally behaved. According to Dr. Osborn, appellant was not the leader during the instant crimes. (13RT 2955.) Quite simply, gang culture prevented appellant from walking away. Appellant could not say “no” to people he perceived as being authority figures. Additionally, there was a fear factor. If one did not follow instructions in a gang, there were consequences. In prison, disobedient 54 | people could be killed. Appellant’s rage was unleashed by alcohol, and his rage could have continued throughout the murder. (13RT 2956.) Appellant was not devoid of conscience. (13RT 2962.) He cared about people, and most strongly for children. When Dr. Osborn asked appellant about a time when he had been happy, appellant was dumbstruck and could not answer. Later, appellant said that he thought that he was happiest when his two sons were born. His sons gave him a sense of purpose. (13RT 2962-2963.) Dr. Osborn opinedthat appellant had two disorders. He was dysthymic, which meantthat he was “down”all of the time, and an alcoholic. Thefirst disorder significantly depressed the person, who then struggled with life. (13RT 2947.) Appellant was quiet and withdrawn. Dr. Osborn did not recall appellant being happy about anything. Appellant had two suicide attempts during major depressive episodes. From the age of 13 or 14, appellant was constantly sad and depressed. He turnedto daily alcohol use in his teens, leading to the second disorder,i.e., alcoholism. (13RT 2948.) After leaving home, appellant drank and experimented with drugs. Marijuana made appellant paranoid. He drank from the early morning and continued throughout the day, until he vomited or passed out. Alcohol and dysthemia had a “very nasty reaction.” (13RT 2949.) Alcoholinitially acted as a stimulant and madethe user feel better. (13RT 2949.) However, it was also a central nervous system depressant, causing appellant to become more depressed. The individual response to alcohol varied. If a person was depressed and then drank,initially, that person felt better, but then became a lot worse. A person with dysthemia was“seriously depressed.” Some dysthymics were violent. Others were not. (13RT 2950-2951.) The “clicking” sensation appellant described was 55 “explosive disinhibition.” Alcohol wasa “lubricant” that caused impulsive emotions to manifest themselves. (13RT 2951.) On cross-examination, Dr. Osborn admitted that appellant told him that he was able to get alcohol while he wasin jail. Appellant also admitted being involved in violence while incarcerated in the county jail. He had participated in a riot in the county jail the prior Summer. Additionally, appellant had been in a fight with a Hispanic inmate and bit the man onhis hands and fingers. (13RT 2979-2980.) Appellant also told Dr. Osborn that prior to the murder, he had been violent towards Tiyarye Felix. Other people had advised appellant that he becameviolent when he drank. (13RT 2981, 3014.) Despite that, appellant made a conscious decision to continue drinking, even while in custody. (13RT 3004.) Appellant advised Dr. Osborn that he became more involved with gangs after moving in with Tiyarye, because she liked the gang lifestyle. (13RT 3013.) 4. Appellant’s Cooperation During A 1997 Murder Prosecution In 1997, Robert Grace was a Los Angeles County Deputy District Attorney (DDA)assigned to the hardcore gang unit. (13RT 2729.) He | prosecuted gang murders, including the murder case ofPeople v. Johnson/Amado, case number TA037534. (13RT 2730.) In 1997, Crips gang members had stopped and boarded an MTA bus. Numerous high schoolstudents were on the bus. The high school was in a Blood neighborhood. The Crips were a rival gang. (13RT 2731-2732.) The Crips gangsters boarded the bus to identify members of the Bloods. Suddenly, a third person fired at, and into, the bus. A high school student was killed, and her friend was wounded. The incident occurred around the sametime that Bill Cosby’s son waskilled. (13RT 2733.) Appellant wasvisiting in the areaat that time. There was a meeting of the 56 Crips, during which they discussed what to do about Bloods riding through the Crips neighborhood. Twoofthe defendants in the case (Peoplev. Johnson/Amado) attended the meeting. The discussion was about stopping a bus, and dragging Bloods from the busto beat or kill them. (13RT 2733- 2734.) The prosecution contacted appellant, who eventually provided information andtestified. The information appellant provided was necessary to obtain conspiracy (to commit murder) convictions. (13RT 2734.) As previously noted, appellant was a Bloods gang member. Since the Bloodswere the gang that the Crips were trying to eradicate, revenge could have been the motive for appellant to testify. (13RT 2741-2742.) While witnesses in gang cases often changed their stories (13RT 2742), appellant cooperated with the prosecution, and did not recant or change his testimony. (13RT 2747.) DDA Grace was an experienced gang prosecutor. In gang prosecutions, witnesses werereluctantto testify becausethey feared retaliation. (13RT 2735-2736.) Appellant was in the area when the shooting occurred. He saw a suspect running, and he wasable to identify people. Due to his testimony, appellant’s life was in jeopardy. (13RT 2736, 2738.) DDA Grace had been so concerned about witness safety that he had not released the names of witnesses during discovery. (13RT 2738.) Victor Corella was an LAPD detective in the aforementioned Johnson/Amado case. (13RT 2975.) The information appellant provided ~ helped lead to an arrest. Detective Corella met appellant at midnight at a location away from appellant’s home. Appellant was scared forhis safety, and did not want to be seen with the police. However, he provided key information in the case and went to court andtestified for the prosecution. (13RT 2976.) 57 C. Prosecution Rebuttal Monte Gmur was at home on December28, 1998. (13RT 3036.) Appellant arrived at Gmur’s house with Pearson and Armstrong. Gmur heard Pearson andappellant debating, including the comment, “You ask him.” Appellant stood in the hallway behind Pearson. (13RT 3037-3038.) Pearson askedto use the room, saying that they wanted to put “Chris” on _ the block to initiate him into a gang. Gmursaid “no.” The men went back into the music room briefly, and then left with Chris for about 20 minutes. (13RT 3042; 14RT 3084.) | Appellant returned and asked to use Gmur’s telephone, and hecalled “Capone.” Appellant said that they had just put Chris on, that he was “cool,” and that he was “Playboy.” All four men then left the premises. (13RT 3043.) Gmurdid not notice anything unusual about Chris. He was not injured. They were all “stupid drunk” when they left his house. (13RT 3044.) In January 1999, Gmurreported to the police that, on the evening of the murder, appellant could carry on a conversation. He was loud and obnoxious. Gmur could understand what appellant was saying on the phone, but he was very intoxicated. At that time, Gmur would not have driven in a car with appellant as the driver; Gmur believed that he was underthe influence of something. (13RT 3045-3046.) On December 29, 1998, Mr. Terri Aitken operated the MTA bus on Route 60. This route traveled from Long Beach to downtown Los Angeles from 8:00 p.m. to 4:00 a.m. The bus stopped near Wardlow Road and Long Beach Boulevard at either 12:30 or 2 a.m. (13RT 3048.) At that time, Aitken had given a statement to the police about a gang- related incident on the bus. He had picked up three Black male gangstersat Willow, not Wardlow. Thefirst one argued over the fare. Aitken told that particular passenger to pay and sit. When Aitken picked up the phone to 58 request assistance, the others told the first one to pay. (13RT 3049.) The three men then argued amongst themselves about Crips and Bloods. (13RT 3051.) All three men exited the bus at Florence. (13RT 3049.) Detective Brian McMahoninterviewed Aitken on January 5, 1999. Aitken reported to Detective McMahonthat three Black males, who had been drinking, had a dispute with a fourth male over gangs. Aitken was unable to identify any of the males from photographs. (13RT 3053, 3056.) Detective McMahonalso questioned appellant, who said the dispute wasover Crips, Bloods and gang colors. Appellant did not tell Detective McMahonthat he had been drinking the entire day of the incident. He said that they had goneto the liquorstore after leaving Gmur’s house, which was about two and one-half miles from the murder scene. (13RT 3054.) It would take about 10 minutes to walk to the bus from that location. The bus ride itself would have been about 10 or 15 minutes. Consequently, the trip would have taken 30 minutes or more. (13RT 3055.) Detective McMahonarrested appellant on January 7, 1999. Detective McMahoninterviewed appellant and recorded a statement from him. (144RT 3090.) Appellant gave Detective McMahona litany of reasons purporting to justify his rape and torture of Penny, including an allegation that he had been molested, his problems with alcohol, and his stepfather’s physical abuse of his mother. (14RT 3091.) Millard Jackson wasthe pastor at First John Baptist Church in Long Beach. (14RT 3066.) Pastor Jackson knew appellant and his mother Pamela. He knew appellant between the ages of seven and 10. (14RT 3067.) After the instant murder, Pastor Jackson spoke with Pamela regarding appellant’s accusations of molestation. Pamela called Pastor Jackson, and said that appellant was on the phone and wanted to speak with him. (14RT 3068, 3071-3073.) 59 Appellant asked Pastor Jackson, “Why did you do that to me?” Pastor Jackson was very upset by the allegation. Appellant claimed that Pastor Jackson had taken him to his house, told him to strip and bathe, and then had went to bed with him where they masturbated each other. Pastor Jackson asked appellant why he was making such allegations. Appellant then stated, “See, Mom,I told you he would lie.” (14RT 3069.) Later, Pamela called Pastor Jackson and apologized, and told Pastor Jackson that her daughter wanted him to marry her.” (14RT 3070.) Pastor Jackson explained that he had counseled appellant as a young teenager. (14RT 3073.) Appellant sang in the choir, and they wentto Magic Mountain. Appellant spent the night with Jackson because the pastor was working with appellant. (14RT 3075.) Appellant stayed if he wanted to, and other children were also present. Appellant did not stay over very often. When he did, appellant used the spare bedroom. (14RT 3076.) Pastor Jackson was very close to appellant’s family. The entire family had stayed with Pastor Jackson. (14RT 3078.) Pastor Jackson vehemently denied molesting appellant. (14RT 3081-3082.) Sergeant Steve Newmanofthe Los Angeles County Sheriff's Department had worked in the gang unit for 14 years. (L4RT 3083.) Sergeant Newmanexplainedthat “jumping in” was a ganginitiation process. Unless he was escorted into the gang, a new member would be beaten for one to three minutes. No blood or broken bones were required. (14RT 3084.) Usually the new member went downand waskickedin the body or torso while protecting himself. (14RT 3085.) ?3 Pastor Jackson had received a previous phonecall from Pamela regarding appellant’s upcoming murdertrial. During that phonecall, Pamela did not mention anything about molestation allegations. (14RT 3071.) Moreover, appellant told Pamela that the “molestation” occurred whenhe was 16 years old, rather than 13 years old. (13RT 3017.) 60 Appellant had the tattoo “CK,” which meant Crip Killer. (3RT 2981.) The “CK”tattoo showed allegiance to the Bloods gang. It meant that the person was willing to kill Crips. (14RT 3085.) The Crips’ gang color was blue; the Bloods’ color of choice was red. If a Blood gang memberwas on a bus and saw someone wearing a blue bandana, he would be expected to challenge that person. This was a matter of gang pride. Ifa Bloodtestified against a Crip, it would be frowned upon (because a snitch was a Snitch), but it might very well be tolerated. (14RT 3087.) If a new memberhad been jumpedinto a gang, Sergeant Newman would expect to see torn clothing anddirty, tussled hair. (14RT 3088.) The new gang member would receive a gang moniker (or nickname)after being jumpedinto the gang. (14RT 3089.) ARGUMENT I. THE TRIAL COURT PROPERLY EXCUSED TWO PROSPECTIVE JURORS FOR CAUSE BECAUSE THEIR VIEWS ON THE DEATH PENALTY SUBSTANTIALLY INTERFERED WITH THEIR ABILITY TO FUNCTION AS JURORS Appellant contendsthat the trial court’s excusal of two prospective jurors for cause based on their views on the death penalty violated his rights to a fair trial under the Fifth, Sixth, Eighth and Fourteenth Amendments of the federal Constitution. (AOB 76-114.) Specifically, appellant argues that granting challenges for cause against prospective jurors D.D. Guror number 6840) and K.F. Guror number 4283) was error because “those jurors’ views on the death penalty did not prevent, or substantially impair, [either] one of them from considering or imposing a sentence of death.” (AOB 77-114.) Respondentdisagrees. 61 A. Applicable Law A prospective juror may be excluded if his views would preventor substantially impair the performance ofhis duties as a juror in the case before the juror. (Wainwright v. Witt (1985) 469 U.S. 412, 424 [105 S.Ct. 844, 83 L.Ed.2d 841]; People v. Earp (1999) 20 Cal.4th 826, 853; People v. Bradford (1997) 15 Cal.4th 1229, 1318; People v. Rodrigues (1994)8 Cal.4th 1060, 1140); People v. Wader (1993) 5 Cal.4th 610, 652-653.) A personal opposition to the death penalty or “the mere absence ofstrong, definite views about the death penalty,” by itself, is not disqualifying. (People v. Pearson (2012) 53 Cal.4th 306, 331, italics original.) If a juror gives conflicting or ambiguous answers to questions about his views on the death penalty,the trial court is in the best position to evaluate the juror’s responses, so its determination as to the juror’s true state of mind is binding on the appellate court. (Wainwright v. Witt, supra, 469 US. at pp. 428-429; People v. Phillips (2000) 22 Cal.4th 226, 234; People v. Rodrigues, supra, 8 Cal.4th at p. 1147.) “As noted in Witt itself, the trial judge may be left with the ‘definite impression’ that the person cannot faithfully and impartially apply the law even though he has not expressed his views with absolute clarity. [Citation.]” (People v. Garcia (2011) 52 Cal.4th 706, 743.) | Any ambiguities in the record are resolved in favorofthe trial court’s assessment, and the reviewing court determines whetherthetrial court’s findings are fairly supported by the record. (People v. Crittenden (1994) 9 | Cal.4th 83, 122; People v. Howard (1988) 44 Cal.3d 375, 417-428.) “Whenthere is no inconsistency, but simply a question whetherthe juror’s responses demonstrated a bias for or against the death penalty, the trial court’s judgment will not be set aside if supported by substantial evidence. [Citation.]” (People v. Roybal (1998) 19 Cal.4th 481, 519.) 62 C06 bE.“The real question is “‘“whether the juror’s views aboutcapital punishment would prevent or impair the juror’s ability to return a verdict of death in the case before the juror.”’”’ [Citations.]” (People v. Heard (2003) 31 Cal.4th 946, 958-959.) The erroneousgranting of even a single challenge for cause necessarily has an effect on the composition of the jury. (Gray v. Mississippi (1987) 481 U.S. 648, 659-668 [107 S.Ct. 2045, 95 L.Ed.2d 622,]; accord In re Anderson (1968) 69 Cal.2d 613, 619-620 [applying reversal per se standard]; see also People v. Pearson, supra, 53 Cal.4th at pp. 327-328.) B. The Trial Court Properly Excused Prospective Juror D.D. For Cause Thetrial court used a 53-page written questionnaire with 237 questions, many of those with subparts. Pages 42 through 53, containing questions 177 through 237, exclusively concerned the death penalty. | (Q1CT 5445-5498.) According to his juror questionnaire, prospective juror D.D. (number 6840) was a 48-year old married White male with one child andinterests in politics and literature. He worked as a salesman at Ganahl Lumberin Los Alamitos. (21CT 5446, 5450.) D.D. was born in Texas, but had lived in California for 47 years. He resided with his family in a house in Long Beach, which they had owned for nine years. (21CT 5446-5448 ) D.D. was a U.C. Berkeley graduate with a degree in biology. (21CT 5452.) | D.D. considered jury duty an “awesome duty, which he had“little desire for.” With respect to his prior jury service, D.D. stated that he felt like he had “caved to the majority opinion.” (21CT 5454-5455.) D.D. indicated that prosecutors were “often over-zealous to convict and too willing to accept the police evidence.” He based that opinion on the “rampart scandal, DNA exonerations, [and] the book “Blind Justice.” (21CT 5455.) D.D. had been a memberof the ACLU for four years, and 63 described its primary goals as “civil liberties human rights.” (21CT 5456) D.D. described himself as neither a leader nor a follower, but stated in his jury questionnaire, “I do things my way.” (21CT 5457.) D.D. had a 1972 conviction for marijuana possession in his record, and he opinedthat the police report with respect to that incident “was largely fictional.” (21CT 5462.) Hestated in his jury questionnaire, “As the defendant has reason to shadethe truth, so does law enforcement.” D.D.also said that he would question the testimony of law enforcement officers. (21CT 5463.) With respect to his 1972 conviction, D.D. believed that he wasnottreated fairly by the police. He remembered the police report as being “wildly inaccurate.” (21CT 5469.) D.D.described the causes of crime as “poverty” and a “lack of hope.” When asked what he thought should be done about the crime problem, D.D. answered,“rehabilitation, mentoring, jobs.” He also indicated that “living as a child under violent/cruel conditions contributes to adult violence.” (21CT 5471.) In response to a question aboutthe criminaljustice system, D.D.answeredthat “way too many people are incarcerated for victimless crimes.” (21CT 5472.) D.D.indicated that with respect to our criminal justice system, he “would initially be leaning towards the defense. I have developed a mistrust of prosecutors.” (21CT 5473.) He believed that the police were clumsy or “criminal” in the O.J. Simpsoncase, as well as in the Rampart scandal. D.D. revealed that his father was an alcoholic during his (D.D.’s) childhood. (21CT 5473-5474.) He thought that Blacks were “often perceived as “dangerous”or “menacing” by Whites. D.D.indicated that he might be biased for Blacks becauseof “the disproportionate numbers of Blacks incarcerated or living in poverty.” (21CT 5476.) D.D.“abhored” the death penalty. He was“strongly againstit.” Recent executions of persons convicted of murder had only strengthened 64 his feelings against the death penalty. D.D. thoughtthat the death penalty was used “too often.” As a member of the ACLU,he opposed the death penalty. D.D. thought that the death penalty was “cruel and unusual.” He held these views “strongly.” (21CT 5486.) D.D.believed that the “death penalty [was] out of step in a modern society,” and that “the death penalty does nothing to deter crime andis applied unevenly.” He did not support the death penalty. D.D. expressed the view that the death penalty should never be imposed. Its purpose was “revenge” and “political.” Significantly, when asked whether it would be impossible for him to vote for the death penalty under any circumstances, D.D.replied, “I’m not sure.” (21CT 5487.) Whenasked abouthis philosophical views, D.D. plainly stated, “I feel the killing of any humanbeing diminishesusall and goes against the laws of nature and man.” (21CT 5488.) When asked whether he would automatically vote for life without possibility of parole, regardless of the evidence, D.D. responded, “I’m not sure.” (21CT 5489.) D.D.indicated that he could not see himself rejecting life in prison without the possibility of parole and voting for the death penalty. (21CT 5490.) D.D. was also “not sure” whether he could set aside his philosophical convictions and vote for the death penalty. (21CT 5491.) He believed that imposing a death sentence did not do any good in easing anyone’s pain. Without having heard the evidence, D.D. opined thatlife in prison without the possibility of parole was an “appropriate punishment”for a person convicted of murder with special circumstances. (21CT 5494.) He thought that “death goes against biology”and “only the most barbaric countries on earth still impose” the death penalty. (21CT 5495.) 65 The Hovey voir dire”* questioning of D.D.also plainly demonstrated that he could not vote to impose a death sentence, if appropriate, in the case at bar. However, even prior to that, D.D.first tried to have himself excused from jury service. The following colloquy transpiredattrial: PROSPECTIVE JUROR NO.6840: 6840. THE COURT: All right. Why couldn't you stay on the case with us? PROSPECTIVE JUROR NO.6840: I'm concerned I might not be able to finish outthetrial, due to the fact that my mother-in-law has lung cancer. My wife's moving her today to Seal Beach. AndI've got a six-and-a-half-year-old son, if my wife hadto start taking care of her motherfull-time, I'm not sure who would take care of my boy. _ THE COURT: Okay. All right. Well, if something happensin that arena, let us know. But I can't excuse you because something may happen. PROSPECTIVE JUROR NO.6840: Uh-huh. (6RT 937.) With D.D.’s hardship request denied, appellant’s defense counsel, and the court, later questioned D.D.as follows: THE COURT:All right. Now, the questioning today is going to be primarily focused on yourability to keep an open mind on the penalty phase. If we get to the penalty phase of the trial. There are two phases in a death penalty case. The first is the guilt phase, and if the jury finds one or more of the circumstancesto be true, then we would goto the penalty phase. There are two phases[sic], one is the death penalty, the other is life in prison without the possibility of parole. All right? PROSPECTIVE JUROR NO.6840: I understand. THE COURT: Can you keep an open mind onthe penalty phase? 24 Hovey v. Superior Court (1980) 28 Cal.3d 1, 80. 66 PROSPECTIVE JUROR NO.6840: I believe I can. MR. YANES [DEFENSE COUNSEL]: Good morning, sir. I just have very few questions to ask you, but I want to make sure that weare clear, in terms of the waythis trial would work. Thejury first hears the evidence of guilt and they decide whether myclient is guilty or not guilty of the charges. If the jury finds him guilty and finds some ofthe things, the special circumstancesto be true, some of the more horrible things involved in this case, then we go on to a second phase and that’s where the jury decides the penalty. Okay, there are only two choices once weget there and that is death or life without the possibility of parole. Are you with me? PROSPECTIVE JUROR NO. 6840: Yes. MR. YANES: Now, what we need to knowis notwhat you would decide, but the fact that you could sit in that phase of the trial, listen to the evidence that will be presented and make a rational decision. PROSPECTIVE JUROR NO.6840: I believe I could. MR. YANES: Okay, and what you are going to hearis aggravating evidence and mitigating evidence in other words, bad things and good things, reasons why you should give him the death penalty and reasons why you should give life without the possibility of parole. Weconsiderlife to be the lesser. You may differ with that philosophically, but for our purposes death is the worse. Life without the possibility of parole is the lesser. PROSPECTIVE JUROR NO. 6840: I understand. MR. YANES: Would yoube able to accept that death is worse? PROSPECTIVE JUROR NO.6840: Yes, I do. 67 MR. YANES: Andyou are going to hear evidence of aggravation, the factors of this aggravation. Other things he may havedonein his life could be factors in aggravation. And then you will hear factors in mitigation maybe things which would cause you to have sympathy for him, things about an abusive childhood, mental issues, that sort of thing. At the end of listening to that the judge is goingto tell you that if you find that the aggravating factors substantially outweigh the mitigating factors, then you can vote for death. If you don’t, then you must vote for life, could you follow that? PROSPECTIVE JUROR NO. 6840: Yes. MR. YANES: I’m not asking youif you would enjoy it. I want to know if you could doit. PROSPECTIVE JUROR NO.6840: Yes, I could. (7RT 1256-1258.) The prosecutor and the court then questioned D.D.as follows: MS. LOCKE-NOBLE [THE PROSECUTOR]: Thank you. In reviewing your questionnaire you indicate on question 178, “What are your general feelings regarding the death penalty?” and you say, you abhorit. PROSPECTIVE JUROR NO.6840: Yes. MS. LOCKE-NOBLE: Youare strongly against the death penalty? PROSPECTIVE JUROR NO. 6840: Iam. MS. LOCKE-NOBLE: Andyou say the execution of personsin the past has strengthened yourfeelings against the death penalty? PROSPECTIVE JUROR NO.6840: Yes. MS. LOCKE-NOBLE: And you feel that the death penalty is cruel and unusual? PROSPECTIVE JUROR NO.6840: I do. 68 MS. LOCKE-NOBLE: Andthat you hold these beliefs also very strongly? PROSPECTIVE JUROR NO.6840: I do. MS. LOCKE-NOBLE: Now,what is important here is that if you cannot impose the death penalty because you feel that you have these strong convictions, then it wouldn’t be fair either to the defendantor to the people of the State of California for you to sit on this jury, would it? PROSPECTIVE JUROR NO.6840: No,it would not. MS. LOCKE-NOBLE: So, honestly, can you ever impose the death penalty, based on your feelings and convictions? _ PROSPECTIVE JUROR NO.6840: I’m not sure. I think T haveto sit in that jury room and makethat decision at the time of the deliberations. MS. LOCKE-NOBLE:But you feel that it is barbaric? PROSPECTIVE JUROR NO.6840: I do. MS. LOCKE-NOBLE: How could you impose something that is barbaric? PROSPECTIVE JUROR NO. 6840: Ifit was necessary to follow the law, and the law said this was the only answerto this case, I believe I could doit. MS. LOCKE-NOBLE: But on question 193 you state that life without the possibility of parole is the only acceptable alternative to the death penalty, isn’t that how youfeel? - PROSPECTIVE JUROR NO. 6840: Yes. MS. LOCKE-NOBLE: Wouldn’tit be correct to say. that you would vote life without the possibility parole because you actually believe it’s worse for the defendant to spendtherest of his life in prison than the death penalty? PROSPECTIVE JUROR NO.6840: No,I feel the death penalty is a worse fate than life in prison. 69 MS. LOCKE-NOBLE:Andit’s your opinion that not only is the death penalty out of step with modern society, it doesn’t deter crime andis not applied evenly? PROSPECTIVE JUROR NO.6840: That is correct. I don’t feel that the death penalty does anything to make our world better. MS. LOCKE-NOBLE:Andyoufeelits only purposeis for revenge? PROSPECTIVE JUROR NO.6840: I -- I -- Yes. MS. LOCKE-NOBLE: How can you imposethe death penalty? PROSPECTIVE JUROR NO.6840: The only way I could impose the death penaltyis if it was clear-cut that the law -- the law madeit very clear that the death penalty had to be imposed. I don’t feel that I’m above the law. However, I hold these convictions very strongly. I think if I sat in the jury room andit becamevery clear there was only one answer,I believe I could impose the death penalty. I won’t know that until I sit in the jury room. MS. LOCKE-NOBLE: Okay, but there are two options here. PROSPECTIVE JUROR NO. 6840: Uh-huh. MS. LOCKE-NOBLE: Yes? You understand there are two options, only two options that are provided, that guilt has been determined already and that is what we are assuming in these questions. PROSPECTIVE JUROR NO.6840: Okay. MS. LOCKE-NOBLE: So in yourparticular case because there are two options, wouldn’t you always vote for life without the possibility of parole, based on your convictions? PROSPECTIVE JUROR NO. 6840: Again, I don’t feel that I would, if the law madeit very clear that death wascalled for in this case. 70 MS. LOCKE-NOBLE: Butthe law -- PROSPECTIVE JUROR NO.6840: And I’m maybe I don’t understand the law. Is it clear-cut to when the death penalty has to be imposed or when life imprisonment-- THE COURT: No, you would betelling -- you are saying if the law wasthat you have to impose, the law doesn’t say that you have to impose the death penalty. I won’t be telling you. Youwill be telling me. Basically, the court will be asking what is the appropriate penalty. PROSPECTIVE JUROR NO.6840: So it becomes an objective decision at that point. It’s not cut anddry. MS. LOCKE-NOBLE:It’s not an objective decision. It’s subjective, it’s a subjective decision as counsel explained there will be mitigating and aggravating factors. The court will not tell you how to weigh those factors. You, as an individual, will have to determine what weight you wantto give to each of the factors. And based on the weight that you provided to each one of the factors, you have to determine if the aggravating factors substantially outweigh the mitigating factors. And that’s how you would arrive at voting for death, based on your conviction. Andthe court is not going to tell you it’s clear-cut in this circumstance. You vote for death in this circumstance you vote for life. It is subjective. Do you believe that you can impose death? PROSPECTIVE JUROR NO.6840: I believe -- I believe I _ could. It would be very difficult for me. I would have to have the almost everyone on the jury trying to convince methatit would be essential or necessary to impose death. MS. LOCKE-NOBLE: Would youprefer not to sit as a juror in this particular case? PROSPECTIVE JUROR NO.6840: I would prefer not to. MS. LOCKE-NOBLE:Is that based on your convictions? PROSPECTIVE JUROR NO,6840: Yes. In the questionnaire | think I madeit clear that I would not like to sit on this jury. | 71 MS. LOCKE-NOBLE: How would you feel if everyone on the jury was voting for death except you? PROSPECTIVE JUROR NO. 6840: I would feel under intense pressure. I would do everything I could to convince the jury that death was not appropriate. MS. LOCKE-NOBLE: And didn’t that happen to you once before in terms of being on a jury? PROSPECTIVE JUROR NO.6840: Ihave been on a jury before, and the jury went against the way I wanted to go. The verdict went the against the way I wanted it to go. MS. LOCKE-NOBLE: Andyoufelt at thatPoint in time you caved in to the majority? PROSPECTIVE JUROR NO.6840: I did. Yes, I do. MS. LOCKE-NOBLE: And knowing that and knowing this is a much moreserioussituation, do you feel that you would, as a result of your previous experience, not listen to the other jurors and hold to your convictions? PROSPECTIVE JUROR NO.6840: I would listen to the other jurors. I would hold to my convictions and I would stand up for my convictions. I would be much moredifficult to be persuaded to vote for the death penalty in this case. I think the last experience made mea stronger person towards my convictions. MS. LOCKE-NOBLE: Andis there anything -- when you go into the jury room for the penalty phase, if you are selected as a juror and when youfirst walk in there, would you be leaning towards life without the possibility of parole? PROSPECTIVE JUROR NO. 6840: Yes. (7RT 1258-1264.) Appellant’s defense counsel and the court then had the following additional questions for D.D.: MR. YANES:In this case, you have convicted him of some of the chargesorall of the charges of having taken a 72 woman off the street, kidnapped her, robbed her, raped her, tortured her and raped her with a foreign object, killed her. In this case when youare going to hear other evidence which could convince you beyond a reasonable doubt, okay, of the guilt of [appellant], DNA-type evidence, statements from his own mouth. PROSPECTIVE JURORNO.6840: I understandthat. MR. YANES: So now youare in that state of mind when you are going into the jury room to decide to go to the penalty phase. PROSPECTIVE JUROR NO.6840: Correct. MR. YANES: You know that you have been convinced overwhelmingly that he is guilty of these charges,all right? Now, you would agree that there are some cases where a person should get the death penalty, that they deserve it, wouldn’t you? In order for you to say you could imposeit at times, you would have to say you feel there are times when a person deservesit? PROSPECTIVE JUROR NO.6840: That’s a hard question to answer. MR. YANES: I’m sayingin general. THE COURT: Let me ask you was your answerto that question based on the belief that, under certain situations, the law compels you or instructs you? PROSPECTIVE JUROR NO.6840: That’s what I was thinking. The only way I could impose the death penalty is if the law compels you to imposethe death penalty. I’m talking aboutif it’s -- if this mitigating circumstance took place and the death penalty is called for, I would to stay within the law. I would have to impose the death penalty. MR. YANES: Theonly thing the judge is goingtotell you, in termsofthe law,is if the aggravating circumstances occurred, what the defendantdid to the victim, that sort of thing, are so much worsethan any good things you hear about him, then you can vote for the death penalty. That’s what the court is goingto tell you, but you haveto then decideifthose things are so much worse than the mitigating. The court doesn’t tell you to 73 vote death. The judge says you have a choice. You have heard all the evidence. You heard the bad thing and good. Now, you decide the bad things outweigh the good things then you can vote for the death penalty. If you don’t think so, then you must vote for life. So the question is if you find that those aggravating things are so much worse would you, on your own, without the court telling you what to do, be able to vote for the death penalty? PROSPECTIVE JUROR NO.6840: I understand that my answerto this question is probably going to determineif I sit on this trial or not. MR. YANES: Whether you are eligible. There is still another process we are going to eliminate people. Just answer this question if whether yourare [sic] eligible to go on to this stage don’t doit -- don’t do it for that. Doit to be honest. PROSPECTIVE JUROR NO.6840: I’m tryingto figure out. This is a huge question. Can I have a couple days to think about it? MR. YANES: No. Weneed to know now,I’m sorry. THE COURT: The fact of the law is the law would never, in a death penalty case, nevertell you that you shall return the death penalty, if certain factors are here, anything like that. That’s never the law. The law is simply if the aggravating factors substantially outweigh the mitigating factors then you can return a verdict of death, otherwise you can’t. If the mitigating circumstances outweigh the aggravating you wouldn’t return a death verdict. If you wantedto return life without the possibility of parole you can return that period. You can return that verdict you can only. You only have the option of returning a death verdict if the aggravating factors substantially outweigh the mitigating. So knowing that would be the charge, basically, to you, would you beable to vote for the death penalty knowing the court is never goingto tell you that you should or shall or anything like that? PROSPECTIVE JUROR NO.6840: I think I could, yes. (7RT 1264-1267.) 74 The trial court then asked D.D. a few more questions: THE COURT: Why do youthink that you can? It seemed that your convictions werepretty strongly held that you think it’s a bad idea. You indicated it was for revenge. Is that appropriate for the State to impose the penalty based on revenge? PROSPECTIVE JURORNO.6840: Personally, I don't think so, however, if the law states one thing i would feel compelled to follow the law. THE COURT:All right. Do you understand the law will never compeljurors to vote for the death penalty? PROSPECTIVE JUROR NO.6840: I understandthat. THE COURT: Could you vote for the death penalty even if the law did not compel you to vote for the death penalty? PROSPECTIVE JUROR NO.6840: I think if the other jurors were able to convince meto vote for the death penalty,I would do it, yes. MR. YANES:Justfinally, it's not a matter — we are not asking what the other jurors would do. We are asking about. you. Could you cometo a conclusion, after hearing the evidence in the penalty phase, that this was a case whichcalled for the death penalty? If all other jurors agreed with you, would you be able to do that? We are not asking if you could be convinced by the others could you make that determination which -- and say this is a case which deservesthis or this is a case that doesn't deserve. It's a personal decision. PROSPECTIVE JUROR NO.6840: I could, yes. (7RT 1267-1268.) Thereafter, the prosecutor challenged D.D. for cause, explaining D.D. had “hesitated numeroustimes” about whether he could impose the death penalty. D.D. had indicated that he would do so only if other jurors convinced him, and that he would not make his own decision. (7RT 1269.) The prosecutor further argued that D.D. abhored the death penalty, his 75 convictions were very strong, and, even “if the law compels him, he’s asking for someoneelse to be the judge . . . that other people have to convince him....” (7RT 1269.) The prosecutor additionally opined that, quite simply, “He can’t do it.” Significantly, the prosecutor also observedthat, “If the law compels him, he's asking for someoneelse to be the judge and he's not saying that in those words, but his body language, the hesitations his statements, that other people have to convince him have told us. Defense counsel even admitted that D.D. “want[ed] the law to give him more help.” Finally, the prosecutor correctly noted that D.D. wanted two more daysto think about it. (7RT 1269.) Thetrial court granted the prosecutor’s challenge for cause, ruling as follows: THE COURT:I sort of have a two-fold problem with this juror. One is based on his answers,atleast initially, it certainly appeared that his views would prevent or substantially impair his performanceas a juror, in accordance with the law. So it would seem at the outset, that he probably could not — impose the death penalty no matter the circumstances. The second problem that I have, if he was a juror andif the jury did impose death, I’m not sure that that verdict would be worth much becausehe told us repeatedly if it comes back with the death verdict that means 11 people voted for death and so did he. So I don’t think he will be helpful or useful to us in this case. So I’m going to grant the People’s challenge for cause. (7RT 1270.) Aspreviously noted, a prospective juror may be excludedif his views would prevent or “substantially impair’ the performanceofhis duties in the case before the juror. (Wainwright v. Witt, supra, 469 U.S. at p. 424.) The United States Supreme Court, in Uttecht v. Brown (2007) 551 U.S. 1, 10 [127 S.Ct, 2218, 167 L.Ed.2d 1014], instructed that a reviewing court 76 should considerthe entire voir dire when determining a Witherspoon issue.”° In the case at bar, substantial evidence supportedthe trial court’s . excusal of D.D. for cause. Moreover, since D.D. gave conflicting or ambiguous answersto several questions about his views on the death penalty, the trial court unquestionably wasin the best position to evaluate D.D.’s responses. “Thetrial court is in the best position to determine the potential juror's true state of mind because it has observed firsthand the prospective juror's demeanor and verbal responses.” (People v. Clark (2011) 52 Cal.4th 856, 895.) Consequently, the trial court’s determination as to D.D.’s true state of mind is binding on this Court. (Wainwright v. Witt, supra, 469 U.S.at pp. 428-429; People v. Phillips, supra, 22 Cal.4th at p. 234.) Here, the record leaves little doubt that D.D. was much morethanjust “substantially” impaired with respect to his ability to recommend a sentence of death. Indeed, as the prosecutor aptly noted, D.D. madeit perfectly clear that, quite simply, “He can’t do it.” (7RT 1269.) First, and most importantly, D.D. repeatedly expressed the view that he could only impose the death penalty if “it was clear-cut that the law — the law madeit very clear that the death penalty had to be imposed.” (7RT 1260.) Despite repeated efforts by the parties to explain to D.D.that the. law would never“require” him to vote for death, i.e., that he would always have an option to chooselife without the possibility of parole, D.D. continually defaulted to the position that he could only impose the death *> Appellant repeatedly relies on evidenceoutside the record to support his claims of error. (See, e.g., AOB 97,fn. 7; see also AOB 110, fn. 8.) Of course, such evidence cannot be considered by this Court on direct appeal. (People v. Seaton (2001) 26 Cal.4th 598, 464.) 77 penalty if the law “required” him to imposeit.*° (7RT 1260-1263, 1265- 1268.) Indeed, even after repeated and lengthy exchangesonthis point, D.D. indicated that he could impose death onlyif all the other jurors agreed with him. (7RT 1268.) Most tellingly, when defense counsel tried to pin down D.D.on this very point, D.D. replied, “I’m trying to figure out. This is a huge question. Can I have a couple days to think aboutit?” (7RT 1266.) This single point alone is overwhelming evidence that D.D. was “substantially impaired,” i.e., thoroughly biased against the death penalty, and unfit to serve as a juror in this capital case. Second, with respect to question number 209 on the jury questionnaire, D.D. replied “no” when asked whether he could see himself, in the appropriate case, “rejecting life in prison without the possibility of parole and voting for the death penalty.” (21CT 5490.) D.D., in the answer to this question, thus plainly stated that he could never see himself voting for the death penalty. D.D.’s inability to follow the law, standing alone, constituted substantial evidence of impairment. (See People v. Riccardi (2012) 54 Cal.4th 758, 780 [Given that question No. 68 was phrased unequivocally, a prospective juror's decision to write “yes” as an answer clearly established that the prospective juror held a bias against the death 299penalty that “would ‘prevent or substantially impair’” the performance of his or her duties as a juror even if the evidence leaned in favor of imposing death.].) Third, when asked in writing if he could “set aside religious, social or philosophical convictions and decide the penalty based solely upon the aggravating and mitigating factors presented... .?,” D.D.’s answer was °° D.D.plainly stated, “The only way I could impose the death penalty is if the law compels you to impose the death penalty. (7RT 1265.) 78 equivocalat best, i.e., “Not sure,” and, “I believe I can.” (21CT 5491.) With respect to D.D., this equivocating type of answer permeated the entire voir dire proceedings. (See 21CT 5487, 5489-5491; 7RT 1259, 1262, 1265 (“I’m not sure,” “It would be very difficult for me,” & “I would prefer not to”’].) D.D. plainly stated that, when hefirst walked into the jury room, he would be leaning towards life without the possibility of parole. (7RT 1264.) Fourth, D.D.’s use of the specific words “cruel and unusual”plainly _ demonstrated that he believed, as an educated man,that the death penalty constituted cruel and unusual punishment, and therefore should not be imposed.”’ Appellant wholly fails to explain how D.D. was not “substantially impaired” when he (D.D.) believed that the imposition of death penalty would violate one of the core constitutional principles of our democracy. Fifth, D.D. would have been a disruptive presence in the jury room,as he plainly required the other jurors to convince him ofthe necessity to impose the death penalty, yet he was determined notto “cave,” as he had done duringhis prior jury service. Hestated, “I would have to have the almost everyone[sic] on the jury trying to convince methat it would be essential or necessary to impose death. (7RT 1262-1263.) Sixth, appellant offered two different answers on whether he wasa current memberofthe ACLU,i.e., first stating that he had been a member for four years in the past, but then stating that he was currently a member. (21CT 5456, 5486.) He described the goal of the organization as “civil liberties” and humanrights,” and indicated that he “strongly” shared the group’s view that the death penalty was “cruel and unusual.” (/bid.) *7 As previously noted, D.D. was highly educated, having graduated from U.C. Berkeley with a degree in biology. (21CT 5452.) 719 Appellant argues that “D.D.’s use of the words “cruel and unusual” cannot be interpreted to mean “constitutionally cruel and unusual” (see AOB 93- 94), but such an argumentis plainly specious. Appellant simply ignores the fact that D.D. strongly agreed with the ACLU’s view that the death penalty wascruel and unusual, which wasplainly constitutional in nature. Seventh, there was ample evidence that D.D. was incurably biased in favor of the defense. He stated that he “would initially be leaning towards the defense. I have developed a mistrust of prosecutors.” (21CT 5473.) D.D. admitted that he might be biased for Blacks because of the “disproportionate numbers of Blacks incarcerated or living in poverty.” (21CT 5476.) D.D.stated that he “would do everything [he] could to convince the jury that death was not appropriate. (7RT 1263.) Thus, D.D. overtly admitted that he would be an advocate for appellant in the jury room during deliberations, which would obviously be highly improper. Eighth, D.D. admitted that he “abhored” the death penalty. He was “strongly against it.” (21CT 5486.) He expressed the view that it should never be imposed. Its purpose was “revenge” and “political.” D.D. repeatedly responded with equivocal answers such as “I’m not sure” when asked whetherit would be impossible for him to vote for the death penalty under any circumstances. (21CT 5487, 5489, 5491.) When asked whether there were times when a person deserved the death penalty, D.D. responded, “That’s a hard question to answer.” (7RT 1265.) D.D.felt that “the killing of any human being diminishesusall and goes against the laws of nature and man.” (21CT 5488.) He was“not sure” whether he couldset aside his philosophical convictions and vote for the death penalty. (21CT 5491.) He thoughtthat “death goes against biology” and “‘only the most barbaric countries on earth still impose” the death 80 penalty.”’ (21CT 5495.) When asked by the prosecution whether, based on his feelings and convictions, he could ever imposethe death penalty, D.D. responded, “I’m not sure. I think I haveto sit in that jury room and make that decision at the time of the deliberations.” (7RT 1259.) In light ofall the above, describing D.D.as “substantially impaired” would be an understatementto say the least. Finally, in excusing D.D. for cause,the trial court correctly identified two insurmountable problems. First, the court stated that “based on [D.D.’s] answers,at least initially, it certainly appeared that his views would prevent, or substantially impair his performance as a juror... .” (7RT 1270.) Asthe trial court’s comment inherently recognized, D.D. answers on the subject were “conflicting and ambiguous”at best. (/bid.) Second,the trial court wisely noted that if D.D. were on the jury, and it imposed the death penalty, it would not “be worth much” becauseit would mean only 11 other jurors “voted for death and so did he.” (7RT 1270.) Thetrial court’s second point plainly recognized that, with D.D. on the jury, any verdict of death would be worthless and immediately reversed on appeal. This is because D.D.all but plainly stated that he would only impose death if the other jurors forced him to do it. He even admitted that he had previously “caved” under pressure, and had changed his decision as a jurorin a prior case to agree with the majority. D.D. opined that he was determined notto let that happen again. (21CT 5454-5455.) Thus, there — was ample foundation for the trial court’s conclusion that D.D. was substantially impaired. Consequently,the trial court properly excused D.D. for cause. *8 D.D.also tried to have himself excused from jury service due to hardship. (6RT 937.) This can also be interpreted as an attempt to avoid being placed into a position where he might have to either “hang” the jury or “cave” to the wishesof others. 81 Furthermore, if this Court found D.D.notto be “substantially” impaired, then the word “substantial” would cease to have any meaning, and this court would necessarily be establishing a new “totally” impaired standard.”? Suchis not the currentstate of the law, nor shouldit be, as a “totally” impaired standard would impose an insurmountable burden on the prosecution. (See People v. Barnett (1998) 17 Cal.4th 1044, 1144 [SA prospective juror is properly excluded if he or she is unable to | conscientiously considerall of the sentencing alternatives, including the death penalty where appropriate.”’|] quoting People v. Rodrigues, supra, 8 Cal.4th at p. 1146; People v. Kaurish (1990) 52 Cal.3d 648, 698-699 [“if the record of a juror’s death qualification is ambiguous,the trial court’s determination on substantial evidence of the juror’s fitness is binding on appellate courts.’’].) As noted above, any ambiguities in the record are resolved in favor of the trial court’s assessment, and the reviewing court determines whether the trial court’s findings are fairly supported by the record. (Peoplev. Crittenden, supra, 9 Cal.4th at p. 122; People v. Howard, supra, 44 Cal.3d at pp. 417-428.) Here, without any doubt, there was a plethora of overt evidence plainly demonstrating that D.D.’s views on the death penalty would substantially impair the performance ofhis duties. D.D.’s answers during voir dire clearly established his inability to follow the court’s instructions on the law concerning sentencing,andthetrial court properly dismissed D.D. for cause. Appellant’s claim otherwise lacks merit.’ *? Even a “totally” impaired standard wouldnot be determinative in this case, as D.D.’s responses on his questionnaire and during voir dire left little doubt that he was “totally” impaired. 82 C. The Trial Court Properly Excused Prospective Juror K.F. For Cause According to his juror questionnaire, prospective juror K.F. (number 4283) was a 28-year old, married White male with no children. His interests included skiing, billiards and racing cars. K.F. worked as a programmer/analyst for St. Jude Medical Center, and had workedas a mechanical engineer and a teacher in the past. (2OCT 5230-5234.) He was born andraised in Illinois, but had lived in Norwalk, California for the past 2 years. KF.was a college graduate with a degree in mechanical engineering. (20CT 5232-5233, 5236.) He was a Lutheran, and described his wife as Christian. K.F. described his religion as “somewhat important” to him. (20CT 5237-5238.) KF. had receiveda traffic ticket in 1998 which he considered as “harassment” by the police officer. (2OCT 5246.) He had also been to court for reckless driving and shoplifting. K.F. was actually convicted of shoplifting when he was 17 years old. (20CT 5248, 5252.) He opined that the criminal justice system was “sometimes lacking in fairness.and [an] ability to be timely.” K.F. described himself as “leaning to the side of [the] defense since the system is very complex and cumbersomefor the defendant.” (20CT 5256-5257.) K.F. indicated that he “would dislike this case due to the charges that were listed.” He also said that he “may be biased against people that commit crimes against women.” (20CT 5260.) K.F. further stated, and later emphasized, that he might not be an impartial juror because he disliked “hearing about rape and other crimes against women.” (20CT 5261, 5265.) KF.also admitted that he would havedifficulty keeping an open mind until he had heardall the evidence because he tendedto “try and solve problemsin [his] head as [he received the] information.” K.F. felt that ifa 83 defendantdid not testify in his own defense, it would impact his determination of the case because he would wonder why the defendant “did not wish to defend himself, possibly [because] he was hiding something.” (20CT 5264.) K.F. said that he would feel obliged to reach a verdict merely to be part of the majority, because he would feel “pressure”if his indecision affected other jurors. (20CT 5266.) In the portion of the questionnaire concerning K.F.’s views on the death penalty, he said that it would be difficult for him to be fair and impartial because he would “feel for the victim in a crime suchasthis.” (20CT 5270.) K.F. answered “yes” to the question asking him if he supported the death penalty, “yet could not personally vote to imposeit.” Hesaid that he “may not be able to make the final decision for the penalty.” (20CT 5271.) K.F. also answered “yes” to the question asking him whether he held any social, philosophicalor religious convictions that would preclude him from imposing the death penalty. He answeredthat the “taking of another person’s life, based on judgment, [was] difficult from [his] religious experiences and social awareness.” (20CT 5272.) K.F. checked the block that stated “cannotset aside beliefs” when asked if he could set aside his convictions and decide the penalty question based solely upon the law. He opined that he would “try to set aside [his] beliefs but [could not] say for certain [he would] be able to.” (20CT 5273.) K.F. also indicated that he could not see himself rejecting life in prison - without the possibility of parole and voting for the death penalty.QOCT 5274.) K.F. also again repeated that he was biased against people who commit rape and other crimes against women. (20CT 5279.) Finally, K.P. noted on his questionnaire that, “I do not feel comfortable with the charges and I am not sure I could only consider the evidence presented when 84 deciding (if needed) between imprisonmentandthe death penalty.2O0CT 5280.) During voir dire, the following colloquy transpired betweenthe trial court, the parties, and prospective juror number 4283: THE COURT: The questioning now is going to be primarily focused on whether you would be able to keep an open mind on the subject of penalty or punishment. There are two phases in a death penalty trial. The first phase would be the guilt phase, and if the jury voted guilty and if the jury found one or more of the special circumstancesto be true, then we would go to the second phase. At the second phase, you would be determining the appropriate punishment. There are two possible penalties, if we get to that phase, and that is the death penalty orlife in prison without the possibility of parole. All right. Do you think that you could keep an open mind and decide between those two penalties? PROSPECTIVE JUROR NO.4283: I would try to. THE COURT: Okay. Is there some hesitancy? Do you feel like you would almost invariably vote one way or the other? PROSPECTIVE JUROR NO. 4283: Of what I’ve seen of the case so far, I feel strongly more about the death penalty, but— THE COURT: By what you’ve seen of what? PROSPECTIVE JUROR NO. 4283: Well, just what P’ve read about it and the way -- also someofthe - the questions on that questionnaire. As [ went throughit, when I started looking at it, I guess J don’t really feel like I have an open mind aboutit. I think I might already have some thoughts already aboutit. THE COURT: You mean the questionnaire in this case? PROSPECTIVE JUROR NO.4283: Well, yeah. Just the wayI started to look at the questionnaire and the things that was presented aboutthe case. 85 THE COURT: Okay. You’re not talking about reading about the case any other place? PROSPECTIVE JUROR NO.4283: No, not aboutthat. THE COURT: Well, no oneis going to dispute that the facts in this case are horrific, all right? No one is going to say anything other than that. But what we need for you to do, see, if we get to the penalty phase, you would have to weigh mitigating factors, that is, factors that are in the defendant’s favor, against aggravating factors, that would be factors that are against the defendant, and you could only vote for the death penalty if the aggravating factors substantially outweigh the mitigating factors. Now,that decision would be based on, amongst other things, on the circumstances of the crime. But we’re just, today, you know, we’re going to be making sure that -- you haven’t firmly fixed in your mind whatthe penalties would be,right, because you haven’t heard, actually, the evidence? PROSPECTIVE JUROR NO.4283: Right. THE COURT: And you'll be able to keep an open mind, and if the aggravating factors don’t substantially outweigh the mitigating factors, you would vote forlife in prison, right? PROSPECTIVE JUROR NO. 4283: Yes. THE COURT: Okay. Questions? MR. YANES: Good morning,sir. PROSPECTIVE JUROR NO.4283: Good morning. MR. YANES: You know, we’re asking you these questions as to not would you enjoy doing this or would it be something pleasant, but could you just, as a man in society, be able to do your duty to your country, basically. And so we need to know if you can doit, all right? PROSPECTIVE JUROR NO.4283: (no audible response) 86 MR. YANES: So if you got into the penalty phase of the case, my client had been convicted,all right? PROSPECTIVE JUROR NO. 4283: Yes. MR. YANES: Would you beable to weigh the factors and decide whether the death penalty was appropriate, orlife without the possibility of parole was appropriate? PROSPECTIVE JUROR NO.4283: I wouldtry to do that. MR. YANES: Well, not try, would you be able to do it? Could you doit? PROSPECTIVE JUROR NO.4283: Well, just looking at like the survey, just someofthe beliefs I had before this case, I don’t know for sure what I would beable to do in the case. MR. YANES: Well, we’re not asking you whatverdict you’d cometo orresult, what I’m asking you is would you be able to follow the law that the judge gives you about penalty. He’s goingto tell you what he just told you just now,basically, that you’re going to hear evidencein the penalty phase of aggravating factors, which would be someofthe horrible things that he did to this woman,thingsin his prior life that he did, bad things, and then you’re going to hear mitigating evidence, good things he’s donein his life, maybe issues for sympathy, maybe issues of mental illness or abuse when he wasa kid, things to make you not want to give the death penalty. Okay. And then you have to weigh those. And the way you have to weighit, it isn’t a test of what is equal or what’s a little bit more,it’s got to be the aggravating, the worse stuff, the bad stuff has to substantially outweigh the mitigating, and then and only then can you vote death, if you wantto -- youstill don’t have to, but you canat that point. Butif the aggravating doesn’tsubstantially outweigh the mitigating, then you must vote forlife; that’s the law. That’s the reason tell you. Would you be able to follow that? 87 PROSPECTIVE JUROR NO.4283: I would try to -- again, I don’t know what I’d -- I think I understand what you’re saying, but — MR. YANES: You wouldn’t throw your hands up andsay, “T just can’t follow the law?” PROSPECTIVE JUROR NO.4283: No. No. I would try to follow the law as muchaspossible. MR. YANES: Okay. Whatpart of that is bothering you? Whatis it that’s making you say “try” and not “you can.” What is it you’re concerned about? PROSPECTIVE JUROR NO.4283: It’s just that Pve never been faced with trying to make this decision before, and I’ve never really thought about where my position would be — MR. YANES: Uh-huh. PROSPECTIVE JUROR NO.4283: -- on the death penalty. MR. YANES: Okay. In your questionnaire you stated that you understandthe death penalty is something California should have. PROSPECTIVE JUROR NO. 4283: (no audible response.) MR. YANES: You’re not crazy aboutit, but you understand that it has its purpose? PROSPECTIVE JUROR NO.4283: Right. MR. YANES:Correct. And you indicated also that you could vote for it if you felt it was the appropriate case. PROSPECTIVE JUROR NO.4283: Right. MR. YANES:Okay. Is that what youare telling me today? PROSPECTIVE JUROR NO. 4283: Yes. 88 MR. YANES: We’re not asking you if you’d doit lightly or if you’dlike to do it — PROSPECTIVE JUROR NO.4283: No. MR. YANES:-- Just could you do it. Andthisis a first time for everybody, you know,for the jurors. PROSPECTIVE JUROR NO.4283: Right. MR. YANES:This is their first time doing this kind of thing, and so no one knows,exactly, what they’re going to do or how they’re going to react until they get into the actualsituation. I guessit’s like going into combat, whether you’re going to run awayscaredorfight, until it happens. Soit’s like that; no one knowsfor sure. But we do needto get some assurance from you that you can follow the law and that you’d be impartial, whether or not you like the death penalty or don’t like it. Could you follow the law and voteforit, in the appropriate case, and vote forlife, in the appropriate case? PROSPECTIVE JUROR NO.4283: I understand the law and I understand, I guess, the details and instructions that will be given to me. I guess I don’t know. Like you’re saying, I don’t know what will happen whenI actually try to make the decision, whether [ll just look at what is there or my personalbeliefs wil MR. YANES: Whatare your personal beliefs that you’re concerned about? PROSPECTIVE JUROR NO.4283: I guess, like I said, I was brought up in a conservative home, and I went to Lutheran High Schoolfor six years, so I’m not-- I don’t -- I’m not practicing my religion now,but in the past I’ve hadbeliefs, when I was growing up andstufflike that. So it’s kind of -- I guess it’s kind of uncertain for me. J don’t know, exactly, where I stand. MR. YANES: Whatis it about your beliefs? What beliefs are there that might cause you problems? What kind ofbeliefs? Beliefs about what? 89 PROSPECTIVE JUROR NO.4283: I’m trying to get to it. Really, taking someoneelse’s life or making that decision to take another person’s life. MR. YANES:All right. So what we need to know is -- let’s assume that you have somereligious issues or doctrine which causes youto feel that it’s a problem taking someone’s life, even in this kind of -- even in a legal way. We needto know if you can set that aside and be willing to consider the death penalty, when you gointo the penalty phase, we need to know that you can do that. PROSPECTIVE JUROR NO.4283: I would try to considerit. I just don’t know,at the end, what factor that would play. MR. YANES: Sure. So what you’re telling us is you think you can do it and you’d give it your best shot, but you don’t know,100 percent sure, if you can do that? PROSPECTIVE JUROR NO.4283: Right. MR. YANES: OKAY. Let me give youa little bit to help you. Let’s suppose that you’ve heard evidence which was overwelming[sic] of guilt. Okay. It’s not whether you’re going to have any doubt, you’re really not going to have a problem, you’re going to have an overwelming [sic] conviction of physical evidence, confessions, that kind of thing. PROSPECTIVE JUROR NO.4283: Uh-huh. MR. YANES: Andyou’re goingto hear horriblestuff, you’re going to see horrible photos, things that were doneto this woman. Andthen you’ve got to go in there and decide life or death. Okay? Do you think that you’d be able to evaluate those things fairly, both to the prosecution and to the defense, and make a fair decision? PROSPECTIVE JUROR NO.4283: Again, I would try to. 90 MR. YANES: Okay. PROSPECTIVE JUROR NO. 4283: Again, I don’t know what will happen at the end. I mean — MR. YANES:Right. But you can’t tell me for sure? PROSPECTIVE JUROR NO.4283: Not for sure, because I don’t know. Before this case I had never thought about these issues. MR. YANES:But you’re telling me that you think you can or you’d do yourbest? PROSPECTIVE JUROR NO.4283: I’d do my best. MR. YANES: Andyou can follow the law? PROSPECTIVE JUROR NO.4283: Right. MR. YANES: Okay. You say that someofthe factors that you would have to know in deciding whether you could vote for death or not, would be the defendant’s involvementin the crime and the things that he did, right? PROSPECTIVE JUROR NO.4283: Right. MR. YANES:Soifyou heard things that wereterrible that he did and/or horrible that he did, and you found the aggravating factors and mitigating, that you’d consider that and follow the law? PROSPECTIVE JUROR NO.4283: [ would considerit. I guess the only concern that I haveis just with everything that goes on in our legal system -- I wasn’t there, I wasn’t the person there. So even, I guess, in the back ofmy mind, I’d always worry, how do I makesure that I know for sure, you know? I mean it can’t be 100 percent, it’s always secondhand. MR. YANES: Okay. Well, I agree with you that in some cases that is the case. All right? This case isn’t like that. PROSPECTIVE JUROR NO. 4283: Okay. MR. YANES:There is going to be physical evidence, DNAevidence, confessions — 91 PROSPECTIVE JUROR NO. 4283: Okay. MR. YANES:-- coming out of the mouth of my client as to what he did, and about his involvement. This is not going to be that kind of case where you go, oh, maybe the witness was lying and maybereally he wasn’tthere, or that kind ofthing.It’s not going to be that kind ofcase. PROSPECTIVE JUROR NO.4283: Uh-huh. MR. YANES:Sotry to think of it in removing any doubt about the actual guilt, now we’rejust talking strictly about the penalty. With that removed andjust thinking about penalty, would you be able to make a decision considering death orlife? PROSPECTIVE JUROR NO.4283: Yes. If I was comfortable with that; yes. (7RT 1308-1318.) The prosecutor and the court then questioned K.F. about his views: MS. LOCKE-NOBLE: You indicated that you attended Lutheran High Schoolfor six years? PROSPECTIVE JUROR NO.4283: Right. MS. LOCKE-NOBLE: Although you’re not practicing at this moment, you still have a lot of those beliefs; is that right? PROSPECTIVE JUROR NO. 4283: Partially because,I guess, my parents weren’t very religious, but they were very conservative. So it goes hand-in-hand,I still have some of the beliefs of -- I guess I’m notas structured as I once was. MS. LOCKE-NOBLE: Okay. And does the Lutheran — faith believe in imposing the death penalty? They’re againstit, aren’t they? PROSPECTIVE JUROR NO.4283: I think so. MS. LOCKE-NOBLE: You know so? PROSPECTIVE JUROR NO.4283: Yes. 92 MS. LOCKE-NOBLE: Okay. Now, you’ve indicated several times, both on the questionnaire and here in court, that you don’t know whether or not you can set aside your personal beliefs; is that correct? PROSPECTIVE JUROR NO.4283: Right. MS. LOCKE-NOBLE: Andpart of your personal beliefs include the Lutheran faith; is that correct? PROSPECTIVE JUROR NO.4283: Yes. MS. LOCKE-NOBLE: Andtheir belief is that you cannot impose the death penalty on someoneelse, that that is God’s right; is that correct? PROSPECTIVE JUROR NO.4283: Correct. MS. LOCKE-NOBLE: Andyoubelieve that, don’t you? PROSPECTIVE JUROR NO. 4283: Yes. I mean toa certain extent. MS. LOCKE-NOBLE: Andat this point in time, you cannot say for certain that you can set aside those beliefs, while you’re in the jury room;is that correct? PROSPECTIVE JUROR NO.4283: Yes. MS. LOCKE-NOBLE: And wouldit be a fair statement to say that it would be best if you were not a juror on this case? PROSPECTIVE JUROR NO.4283: Yes. (7RT 1318-1319.) Atthis point, the prosecutor asked if the court wanted to hear more, but the court then asked K.F. to wait outside. (7RT 1319-1320.) Defense counsel indicated that he would just “submit it” and let the court decide the challenge. The court then excused K.F. for cause, ruling: THE COURT: Okay. It would appearthatthe juror’s viewson capital punishment would prevent or substantially impair the performanceofhis duties if he was a juror, in accordance with the law. So we’ll excuse that juror. 93 (7RT 1320.) Asthe United States Supreme Court stated in Witt, a juror’s bias need 299not be “proved with ‘unmistakable clarity.’” (Wainwright v. Witt, supra, 469 US. at p. 424.) Witt explained the difficulty in assessing jurorbias: [D]eterminations ofjuror bias cannot be reduced to question- and-answersessions which obtain results in the mannerof a catechism. What commonsenseshould haverealized experience has proved: many veniremen simply cannot be asked enough questions to reach the point where their bias has been made “unmistakably clear”; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings. (id. at pp. 424-425, footnote omitted.) While the record might lack in clarity, Witt found that a trial judge could be “left with the definite impression”about a prospective juror’s ability to faithfully apply the law. (Ud. at pp. 425-426.) 66666.‘ The prosecutor made five peremptory °3° Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69]; People v. Wheeler (1978) 22 Cal.3d 258, overruled in part by Johnson v. California (2005) 545 U.S. 162 [125 S.Ct. 2410, 162 L.Ed.2d 129]. ** As will be explained in greater detail below, this Court need only consider whether Wheeler/Batson error occurred as to F.G., because D.B. and M.H.could only have been seated as the third and fourth alternate jurors. Since only the first alternate juror was seated in the instant case, appellant could not have been prejudiced by any Wheeler/Batson error as to D.B. or M.H. (People v. Mills (2010) 48 Cal.4th 158, 182 [“Althoughit is therefore unnecessary to consider whether any Wheeler/Batson error occurred as to this [alternate] juror, as any error in this regard would necessarily be harmless. . . the prosecutor's reasons for challenging her,if found unsupported by the record, can - when coupled with the [other] challenges . . . be considered part of an overall and deliberate plan to removeall African-Americans from the jury in violation ofhis constitutional rights”]. Therefore, since the prosecutor’s reasons for challenging D.B. and M.H.potentially can “be considered part of an overall and deliberate plan to remove all African-Americans from the jury,” respondentwill also substantiate the validity of the prosecutor’s race- neutral reasons for removing D.B. and M.H. *> The final 12 jurors seated on the primary panel consisted of the following: Seat 1) Juror number 1938, a White male (see 3CT 708); Seat 2) Juror number 5904, a White male (see 3CT 763); Seat 3) Juror number (continued...) 103 challenges during the voir dire of the primary panel, and usedall four of her available peremptory challenges during the voir dire of the alternate panel, whichconsisted offouralternates.°° (ORT 1863-1876.) The prosecutor excused one Black male during the selection of the primary panel (prospective juror number 2041), and one Black male followed by a Black female during the selection of the alternate panel (prospective juror numbers 3747 and 4826). (QRT 1856, 1870, 1876; 14RT 3182-3184.) (...continued) 8868, a White female (see 3CT 818); Seat 4) Juror number 4635, a White male (see 4CT 871); Seat 5) Juror number 8460, a Pacific Islander female (see 4CT 926); Seat 6) Juror number 7421, a Japanese female (see 4CT 981); Seat 7) Juror number 2052, a White female (see 4CT 1036); Seat 8) Juror number 9710, a Hispanic male (see 4CT 1089); Seat 9) Juror number 3164, a White male (see SCT 1142); Seat 10) Juror number 7007, a White male(see SCT 1195); Seat 11) Juror number 0057, a White female (see SCT 1250); and Seat 12) Juror number 3388, a White male (see SCT 1303). Thefinal jury was thus composed of seven males and five females, of which nine were White, one was a Pacific Islander, one was Japanese, and one was Hispanic. Thefirst alternate, juror number 2723, replaced juror number 4635 for the penalty phase, but both 2723 and 4635 were White _ males, so the racial composition of the jury did not change. (See 12RT 2535.) This diversity of the jury flatly refutes appellant’s claim that his fate was decided by an “all White” jury. (See AOB 134.) *° The prosecutor made herfive peremptory challenges during the selection of the primary panel in the following order: 1) Prospective juror number 6750, a White female (see 11CT 2789; 9RT 1855); 2) Prospective juror number 6242, a White female (see 7CT 1886; ORT 1856); 3) Prospective juror number 2041, a Black male (see 11CT 2897; 9RT 1856); 4) Prospective juror number 8967, a White female (see 11CT 2842; 9RT 1858); and 5) Prospective juror number 9976, a Native-American/Mexican American female (see 10CT 2736; 9RT 1858). The prosecutor made her four peremptory challenges during the selection of the alternate panelin the following order: 1) Prospective juror number 8100, a White female (see 8CT 2204; 9RT 1863); 2) Prospective juror number 7465, a White female (see 6CT 1568; 6RT 1049; ORT 1864); 3) Prospective juror number 3747, a Black male (see 12CT 3056; 9RT 1870; 4) Prospective juror number 4826, a Black female (see 8CT 2098; 9RT 1876). 104 After the prosecutor’s fourth and final peremptory excusal during the selection of the alternate panel (against Black female prospective juror number 4826), defense counsel made a Wheeler/Batson motion.*’ (2CT 499; ORT 1879-1885.) A detailed analysis of each juror’s background and voir dire questioning is required prior to addressing the merits of the instant claim. 1. E.G. (Prospective Juror Number 2041) Accordingto his juror questionnaire, F.G. was a 68-year old Black male who workedas a unit supervisor for Hertz Corporation. He supervised five senior claim examiners and one claim assistant. F.G. was born in Oakland, but wasraised in Oakland, Berkeley, San Francisco and Los Angeles. At the time oftrial, he had been living in South Central Los Angeles for 22 months, but he had also lived in Long Beach for 13 years. (11CT 2897, 2899, 2901.) °7 Appellant mistakenly contendsthat “the prosecutoreffectively used 60 percent of her peremptory challenges to remove every [B]lack person from sitting as one of the 12 jurors.” (AOB 146.) Actually, the prosecutor exercised only one of five peremptory challenges, or 20 percent, against Blacks during the selection of the primary panel. (9RT 1881.) The prosecutor used two of her four peremptory challenges, or 50 percent, against Blacks during the selection of the alternate panel. (ORT 1882- 1884.) Appellant also mistakenly contendsthat the trial court somehow applied Wheeler/Batson incorrectly because the challenge was made during the selection of the alternate jurors. (See AOB 134, 138-139.) The record, however, plainly demonstrates that the trial court merely made an off-hand comment musing whether Wheeler/Batson applied to the selection of alternate jurors, but in fact used the correct standard in renderingits decision denying appellant’s motion. (9RT 1885.) In fact, the trial court did not seem to be awarethatit “was unnecessary to consider whether any Wheeler/Batson error occurred”as to D.B. and M.H., hence if there was error, it was undoubtedly in appellant’s favor. (See People v. Mills, supra, 48 Cal.4th at p. 182.) 105 F.G. had served as an enlisted soldier in the United States Air Force for 10 years, from 1952 to 1962. (11CT 2900.) He wasprepared to serve as a juror if selected (11CT 2905), and believed that it was his duty as a citizen to do so. (11CT 2906). F.G. believed that prosecutors were “not alwaystruthful and tend[ed] to exaggerate.” (11CT 2906.) F.G. believed the same of defense counsel, and based his opinion on newspaperarticles, radio broadcasts, and television media that he had read, heard or seen. (11CT 2906.) He also read the Bible in his spare time. (11CT 2910.) F.G. indicated that he had seen “a lot of investigative procedures” by watching Court TV.” (11CT 2913.) Aspart of his regular job duties, F.G. spoke with lawyers on a daily basis. He knew about 50 to 60 “civil and criminal defense attorneys.” F.G. had appeared before “many judges”in civil matters, but knew no judges personally. (11CT 2914.) He had once been falsely accused ofstealing a rental car due to a computererror by the rental agency. (11CT 2920.) F.G. favored hiring more law enforcement personnel, and did not “believe in too many mitigating factors” because “people have choices.” (11CT 2922.) He believed that the three most important problems with our criminal justice system were “misleading evidence, wrongful accusations, [and the] appeal process.” (11CT 2923.) F.G. had “experiencedracial prejudice while in the Air Force stationed in San Antonio, Texas in 1952.” (11CT 2926.) F.G.believed that Black Americans were “rarely” treated fairly in our country, and when askedto explain stated, “I will not explain.” He stated a reluctance to sit on the jury “due to the nature of the alleged crimes.” He foundit “difficult to understand the killing of another human being.” (11CT 2927.) The charges of murder and rape caused him to wonder whether he could be impartial. (11CT 2928.) 106 F.G. believed that “certain crimes deserve [the] death penalty.” (11CT 2938.) He listed “multiple murder” and “kidnaping with great bodily harm”as crimes deserving of the death penalty. (11CT 2938.) F.G. “disagree[d] somewhat” with the statementthat “[a]nyone who intentionally kills another person withoutlegal justification, and not in self- defense, should receive the death penalty.” (11CT 2939.) F.G.believed that life without parole was a worse punishmentfor a defendant than death (11CT 2939), but believed death was the more severe punishment. (11CT 2944). He considered heinous crimesandtorture as circumstancesjustifying the rejection of a sentenceoflife without the possibility of parole. (11CT 2941.) During Hovey voir dire, the prosecutor asked F.G. to explain why he thought life without the possibility of parole was worse than death for a defendant. (7RT 1294.) F.G. explained that with respect to a life without the possibility of parole sentence, the defendant would haveto think about the crime he had committed, and he would be locked up for life “with no possibility of getting out, it could have a trying effect on a person’s mind.” (7RT 1294.) He told the prosecutor that he could weigh and determine whether aggravating factors outweighed mitigating ones. (7RT 1295.) The prosecutor asked F.G. why he had written in his questionnaire that he did not want to serve on the jury. F.G. explained, “Other thanit’s a big decision, is probably maybe the length of the trial. But I guess I can live with the length ofthe trial, as long as it’s not more than 30 days.” The prosecutor subsequently assured F.G.that the trial would not be more than 30 days. (7RT 1295-1296.) The court then confirmed thetrial schedule, i.e., that it would be November 12 through November 22. F.G.replied that he could arrangehis life to accommodate that trial schedule. (7RT 1296.) F.G. also informed the court about pendinglitigation involving his employer, and the fact he was on the witnesslist, expecting to testify on 107 November 15, or November 18, in Santa Monica. He indicated that his testimony was“critical,” because he signedall of the discovery and verification responses. (7RT 1296.) The court commented, “Well, fortunately, I'll have a great deal of influence with that Santa Monica court.” (7RT 1297.) F.G. responded, “Okay,” and the court told F.G.to remind the court if F.G. wasselected to serve as a juror. (7RT 1297.) The parties passed for cause. (7RT 1294, 1297.) 2. D.B. (Prospective Juror Number 3747) According to his juror questionnaire, D.B. was a 33-year old Black, male manager-engineer for SBC Pacific Bell. He was born in Lynwood, California, and had been raised in Compton and Cerritos. D.B. lived in Bellflower with his six-year old daughter. (12CT 3056-3057, 3062.) He was a graduate of the Southwestern University School of Law, and was a memberof the State Bar of California, as well as the Los Angeles Bar Association. D.B. had previously been employed as a clerk in a prosecutor’s office, and had been a memberof the Black Law Student’s Association. (12CT 3062, 3066, 3071.) D.B. enjoyed reading, and had recently read “Invisible Man,” a book about the Black experience duringthefirst half of the 20" Century. (12CT 3068.) As part of his employment, he had been on a ride-along in a police car. D.B. viewed the ride-along as “a learning tool, designed to show officer experiences.” (12CT 3072.) He had a friend who workedat the LBPD,andhis other friend (his 33-year-old male roommate) worked for the Immigration and Naturalization Service. (12CT 3057, 3062.) D.B. had two personal experiences with law enforcement. One was in 1990, and he described the encounteras the “police roughed me up for no reason.” He called the police department aboutthe incident, “but was unable to get [the] badge numberthus no action [was] taken.” (12CT 3072.) More recently, on December 31, 1999, less than two years priorto 108 appellant’s trial, D.B. was arrested for driving under the influence. He pled guilty in June, 2000. (12CT 3078.) D.B. believed that the outcome was “fair but extremely putative due to excessive fines.” (12CT3079.) D.B. indicated that he had some knowledgeofpolice procedures and methods from watching television, and from speaking with other attorneys. (12CT 3072.) Hestated that he had several friends who had diedas the result of running from the police or from gang activity. (12CT 3080.) Whenasked about the most important problems with our criminal justice system, D.B. listed “corrupt lawyers and police” as one of the problems. Healso thought that “money buysjustice.” (12CT 3082.) D.B. further opined that the police did not arrest the suspect in the “Baretta” case due to his star status. (12CT 3083.) D.B. questioned whether the death penalty was fair, because “so many are later deemed innocent.” (12CT 3096.) During Hovey voir dire, the prosecutor asked D.B. several questions about his 1999 conviction for driving under the influence, for which he was still on probation at the time of appellant’s trial. (8RT 1565.) The following colloquy transpired: MS. LOCKE-NOBLE:I believe youindicated that you had a driving underthe influence. PROSPECTIVE JUROR NO.3747: Yes, ‘99. MS. LOCKE-NOBLE:Are youstill on probation for that? PROSPECTIVE JUROR NO. 3747: The probationary period is what, three years. That wasa little less than three years, yes. MS. LOCKE-NOBLE:So youarestill on probation? PROSPECTIVE JUROR NO.3747: Yeah. MS. LOCKE-NOBLE: Howisthat going to affect you in determining, you had somepenalties and punishments imposed upon you. Howis that going to affect you? 109 PROSPECTIVE JURORNO.3747; Not at all. (8RT 1565.) The prosecutor also asked four questions concerning D.B.’s legal education and/or experience. MS. LOCKE-NOBLE: AndI’m notsure, in reading your questionnaire, did you finish law school? Are you in law school. PROSPECTIVE JUROR NO.3747: Finished law school, passed the bar. MS. LOCKE-NOBLE: Are you practicing as a lawyer? PROSPECTIVE JUROR NO.3747: I’m inactive right _now.I work for a corporation. MS. LOCKE-NOBLE: Not as a lawyer? PROSPECTIVE JUROR NO.3747: I’m notlitigating, no. MS. LOCKE-NOBLE: Andare you seeking employment with a prosecutorial agency? PROSPECTIVE JUROR NO. 3747: Currently, no. (8RT 1565-1566.) The prosecutor then questioned D.B. regarding his views about sentencing as expressedin his jury questionnaire, including his written answersreflecting concerns about indigent or poor defendants on death row wholater were exonerated. The following exchange took place: MS. LOCKE-NOBLE: Youindicated several concernsin your questionnaire about people who havelittle money andlater are found innocent on death row? PROSPECTIVE JUROR NO.3747: Correct. MS. LOCKE-NOBLE: Would that affect you personally, in making your decision in this case? PROSPECTIVE JUROR NO. 3747: Not at all, just answering the question. 110 MS. LOCKE-NOBLE: Okay. I know there werea lot of — questions. Now, as the court has indicated during, what weare talking about right now is the penalty phase. We are assuming _ that the defendant has been found been guilty and the special circumstances, one or more have been found true. Then weare going to present additional evidence, aggravating and mitigating factors. It is a very subjective standard. For you in orderfor you to imposethe death penalty, the aggravating must outweigh the mitigating. You canstill impose life without the possibility of parole, you understandall of that? PROSPECTIVE JUROR NO.3747: Yes, I understand. MS. LOCKE-NOBLE: Andit’s not a counting on one side or the other. You do you understand that you don’t count up the mitigating and count the aggravating andarrive at verdict. Each juror, including yourself, will have to assign a weight to each one of the factors. You may decide that this particular factors [sic] gets no weight, and another juror may decide that factor has a lot of weight. You don’t have to agree how muchweightto give to each factor nor do you haveto agreethis is a mitigating one, and this is aggravating. You maysaythis is aggravating and one maysayit is mitigating. You have taken several criminal procedures classes and criminal law? PROSPECTIVE JUROR NO. 3747: Yes. MS. LOCKE-NOBLE:In order for you to sit and be fair and impartial as a juror, you haveto set aside all that training. PROSPECTIVE JUROR NO.3747: No problem. MS. LOCKE-NOBLE: Andall the -- I don’t know ifyou did any litigation while you worked for the Long Beach City Prosecutor’s Office, and all the law and things you know as evidence, that’s up to the judge, he’s going to make those decisions. PROSPECTIVE JUROR NO. 3747: IT understand. MS. LOCKE-NOBLE: And won’t be able to tell them any of the knowledge that you have. PROSPECTIVE JUROR NO,3747: I promise not to do that. 111 MS. LOCKE-NOBLE: Okay. On Question No. 219, I’m sure you rememberthat one. PROSPECTIVE JUROR NO.3747: Oh, yeah. MS. LOCKE-NOBLE: [’ll read it to you. “Do you feel that someone convicted of murder during the commission of a robbery, torture or sexual assault during a robbery should be sent to death without the consideration of background information?” And then it says always, probably, possible, possibly, never or unsure and you checked,“never” and you explained. PROSPECTIVE JUROR NO.3747: Excuse me. I misread the answers. The answers weren’t clear. I thought it said never unsure. I didn’t see a box, “possibly.” MS. LOCKE-NOBLE: Youare correct. PROSPECTIVE JUROR NO.3747: I know. MS. LOCKE-NOBLE: Thereis a box for possible, but there is not a box for unsure. PROSPECTIVE JUROR NO. 3747: Then possibly. MS. LOCKE-NOBLE: Andthenit’s really the explanation that I have question about. PROSPECTIVE JUROR NO.3747: Okay. MS. LOCKE-NOBLE: Youindicate mental defects may alter intent, thus making death unwarranted whetherlife without the possibility of parole would suffice. PROSPECTIVE JUROR NO.3747: Correct. MS. LOCKE-NOBLE: What did you mean by that? PROSPECTIVE JURORNO.3747: Meaningthat I would have to look at the background circumstances regarding the defendant. If there was some mental defect, then life without the possibility of parole would be the mostlogical option. MS. LOCKE-NOBLE: Whatdo you consider a mental defect? 112 PROSPECTIVE JUROR NO. 3747: How doI defineit? MS. LOCKE-NOBLE: Yes. PROSPECTIVE JURORNO.3747: I would havethe[sic] hear the circumstancesofthe situation and weighit from then with the experts and whatnot. I would define it as anything that would negate intent. MS. LOCKE-NOBLE: Okay. Now,taking that into consideration, what you just said, that would go for the guilt phase. You would have to determineintent as the court instruction you [sic] for those crimes? PROSPECTIVE JUROR NO.3747: Right. MS. LOCKE-NOBLE:But in determining penalty there is no intent issue. PROSPECTIVE JUROR NO.3747: I understand that. MS. LOCKE-NOBLE:Okay. PROSPECTIVE JUROR NO.3747: Uh-huh. MS. LOCKE-NOBLE: So wehave-- the jury has already decided that he is guilty. We don’t have the intent issue. Do you have a different definition for mental defect with regards to penalty issues? PROSPECTIVE JUROR NO. 3747: No. (8RT 1566-1569.) The parties passed for cause. (8RT 1564, 1570.) 3. M.H. (Prospective Juror Number 4826) M.H.was a 40-year old Black female who was born andraised in Long Beach. She workedas an audit clerk in Compton for Ralphs Grocery Company, and had served for three years as an enlisted soldier in the U.S. Armyin the early 1980's. (8CT 2098, 2100-2102.) A friend of hers had worked as a jailer for the Los Angeles Police Department. (8CT 2104.) M.H.considered herself a religious person and described her Christian religion as “very important” to her. (8CT 2105-2106.) She admitted that 113 she foundit “difficult” to judge another’s guilt or innocence. M.H. explained, “‘given all the facts I will do my best as a jurist.” (8CT 2106.) When asked whether she was a leaderor a follower, M.H.replied, “I have a mind of my own I do what’s best for me.” (8CT 2109.) She listed “C.S.1. as one of her favorite television shows, and she also wrote, “I watch C.S.I. all the time.” (8CT 2112, 2125.) M.H.indicated that she had previously been to court for a worker’s compensation settlement. (8CT 2116.) M.H. had sister with a persistent alcohol problem. (8CT 2126.) She indicated that, when she wasin the U.S. Army, she “had a First Sergeant who didn’t like Blacks.” (8CT 2127) M.H.believed that the death penalty was used “randomly,” and thoughtthat a sentenceoflife without the possibility of parole was worse than a sentence of death. (8CT 2138, 2140.) During Hovey voir dire, the prosecutor asked M.H.about her answer to question 186, where she wrote that she had “no opinion” regarding whether California should have the death penalty. (1ICT 2139.) M.H. explained, “Depending on the crime, then, yes, you should. If it’s a sufficient enough crimeforit, yes.” (7RT 1219.) The prosecutor then asked M.H.aboutherstated difficulty in judging another person. MHagreedthis was “based onreligious or philosophical or moral reasons.” (7RT 1220.) Finally, the following colloquy transpired between the prosecutor and M.H.: MS. LOCKE-NOBLE:I believe you indicated on your questionnaire that you wantto be jailer. PROSPECTIVE JUROR NO.4826: No. I said at one time [ putin for it. I changed my mind. _ MS. LOCKE-NOBLE: What caused you change your mind. 114 PROSPECTIVE JUROR NO.4826: It's not something that I would like to do. MS. LOCKE-NOBLE: Whatwasit that caused you to change your mind. PROSPECTIVE JUROR NO. 4826: It seemed dark. (ORT 1865-1866) The parties passed for cause. (7RT 1207, 1221.) 4. The Wheeler/Batson Motion Appellant only made one Wheeler/Batson motion, which he raised at the very close of the alternate panel voir dire (following the excusal of prospective juror number 4826). At the time of the motion, the primary panel had already been accepted by both parties, and both parties had already exhaustedall four peremptory challenges with respectto the alternate panel. Appellant’s defense counsel argued that the prosecutor improperly used peremptory challenges on the basis of race as to prospective juror numbers 2041, 3747 and 4826. (QRT 1879-1880.) As previously noted, prospective juror number 2041 was excused by the prosecutor during the selection of the primary panel. (QRT 1856.) Prospective juror numbers 3747 and 4826 were excused by the prosecutor during the selection of the alternate panel. (9RT 1870.) However, on at least two occasions, the prosecutor accepted the alternate panel with prospective juror number 4826 remaining on the panel. (QRT 1869-1870, 1880.) Had they not been excused, prospective juror numbers 3747 and 4826 would have been the third and fourth alternates, respectively.”® (ORT 1869.) No alternates were seated during the guilt phase, and only one *8 At one point, defense counsel incorrectly claimed that prospective juror number 4826 wasthe second alternate. (ORT 1880.) This was observedto be incorrect by the trial court. (ORT 1885.) 115 alternate was seated during the penalty phase. (12RT 2535.) The excusal of prospective juror numbers 3747 and 4826 did not have had any impact on the proceedings or on the composition of the jury. Thetrial court specifically noted that it seated alternates in the order of selection, not randomly. (ORT 1868, 1881.) The prosecutor noted that a prima facie case had not been established, and also volunteered race-neutral explanations for the three excusals. The trial court subsequently noted that the defense had not established a prima facie case, and, even assuming that it had, that it found the prosecutor’s proffered explanations to be race-neutral. (ORT 1881-1884.) The explanations provided by the prosecutor for removing each ofthe three prospective jurors were as follows: a. F.G. (Prospective Juror Number 2041) The prosecutor excused F.G. during the selection of the primary panel, and defense counsel did not object or make a Wheeler/Batson motion. However, after the primary panel had beenseated, andat the close of the alternate voir dire, defense counsel cited the excusal of F.G.as evidence supporting his Wheeler/Batson motion. He argued that F.G. was qualified to sit as a juror, that “[h]e appeared to be just a middle-of-the-road guy,” and that his race was the only basis for the prosecutor’s exercise of her peremptory challenge. (ORT 1880.) The prosecutor subsequently provided numerous race-neutral reasons for her challenge of prospective juror number 2041 as follows: MS. LOCKE-NOBLE: Okay. On juror G-2041, he indicated on question no. 42, "police are not always truthful and tend to exaggerate."*l He speaks to attorneys daily, and knows *° Actually, the prosecutor was mistaken. Prospective juror number 2041 stated that “prosecutors” are not always truthful and tend to exaggerate, rather than “police.” (11CT 2906.) 116 50 to 60 civil or criminal lawyers. He did not wantto sit on this case. He wasarrested in 1992 by the Los Angeles Sheriff's department. AndI felt that all of those things, in combination, in . addition to the fact that when I was questioning him in Hovey, he refused to smile at me, although he smiled at the defense,all of that, to me, indicated that he would not be a good prosecutorial juror. He also indicated that LWOP was worsefor a defendant, so that's why I kicked him. (ORT 1881-1882.) b. D.B. (Prospective Juror Number 3747) The prosecutor used herthird alternate peremptory challenge (her third of four available peremptory challenges during the selection of the alternate panel) to excuse D.B., and defense counsel did not object under Wheeler. However, as previously noted, at the close of the alternate panel voir dire, defense counsel cited the excusal of D.B. as evidence supporting his Wheeler/Batson motion. He argued that D.B., “the attorney, he worked for a prosecutorial agency, as an attorney, so I don’t understandthat either.” (ORT 1880.) The prosecutor then provided a plethora of race-neutral reasons for her challenge of prospective juror number 3747 as follows: MS. LOCKE-NOBLE:Heis currently on probation for driving underthe influence. He wasalso roughed upby the police, for no reasonat all, according to his questionnaire. And I think -- I'm not sure if that's what I was looking for, I don't have it listed here, but I think he wasalso arrested for a 314. But the fact that he is currently on probation,I thinkit's highly unusual that a prosecutor would keep somebodythat's currently on probation for a criminal offense on a jury, let alone a death case. 117 No, he wasnot arrested for a 314, he was -- he was just on probation for the DUI andthe police roughed him up for no reason. He also feels that mental defects mayalter intent, thus making death unwarranted and LWOPwould suffice. That's question 219. He also had great concerns about whetheror not it was fair to make those with little money, while they were on death row, and later found not guilty -- I think we talked about that with him during the Hovey selection. Those are the reasons whyI kicked him. Also, he's an attorney, and [ don't normally keep attorneys on my panel. | think they have too many problemsin the jury. (ORT 1882-1883) c. M.H.(Prospective Juror Number 4826) The prosecutor used her fourth alternate peremptory challenge (her fourth of four available peremptory challenges during the selection of the alternate panel) to excuse M.H., and defense counsel immediately objected pursuant to Wheeler. Defense counsel cited the excusal of M.H.as evidence supporting his Wheeler/Batson motion. He argued that there was no plausible reason for removing her from the alternate panel. (9RT 18.) The prosecutor then provided numerousrace-neutral reasons for her challenge of prospective juror number 4826as follows: MS. LOCKE-NOBLE:I do know that oneofthe -- off the top of my head, without looking at the notes, I recall this particular juror watches CSI, crime scene investigation,all the time; she underlined that on her jury questionnaire. This case, as we have indicated to the court, does involve DNA,a substantial amount of DNA. Also, some of the questions that I asked her just a few minutes ago concerning beinga jailer, she indicated that it was dark and she didn't want to be involved with these type of people. I feel that she has somespecial knowledge with regards to what it would be like to be in jail, and that may 118 play a part in her decision making process. I did not want someonein that- - with that frame of mind, i.e. that it's dark to be in jail, to be on this particular panel. There’s only two possibilities here, and one is going to be LWOP, and one is going to be death. And if we get to the penalty phase -- and that's whatI'm concerned about, mostly, with that particular juror, but let me find the rest of my notes. She indicated that she findsit difficult to judge another. And I believe she -- okay. That she did not want to be on this panel, it would be extremely hard for her to put someoneto death, andit is a sad case, on question no. 231. (8RT 1883-1884.) d. The Trial Court’s Ruling Thetrial court found that the defense had failed to make a prima facie showing ofracial discrimination, but it noted that “even if the court had reachedthat point, the prosecution has explained race neutral reasons for excusing the jurors.” (ORT 1884.) *° This Court has repeatedly held that, even wherea trial court finds no primafacie case of racial discrimination in the prosecutor’s use of a peremptory challenge, if the prosecutor states his or her reason for the peremptory challenge, and thetrial court rules on the ultimate question of intentional discrimination, the issue of whether the defendant made a prima facie showing is moot. (See, e.g., People v. McKinzie, supra, 54 Cal.4th at p. 1320; People v. Elliott (2012) 53 Cal.4th 535, 560; People v. Mills, supra, 48 Cal.4th at p. 174; People v. Lenix (2008) 44 Cal.4th 602, 613, fn. 8.) Such a case is deemed a “first stage/third stage Batson hybrid,”andit is appropriate to proceed directly to the third stage of the Batson/Wheeler analysis, determining whether substantial evidence supports the trial court’s finding that the prosecutor did not engage in purposeful discrimination. (People v. Mills, supra, 48 Cal.4th at pp. 174-175; People v. Lenix, supra, 44 Cal.4th at p. 613, fn. 8.) A trial court’s finding of no purposeful discrimination, which may be express or implied, is entitled to great (continued...) 119 Thetrial court finally noted: And, naturally, the explanation doesn't have to be onethat the court would do,if the court wasstill a lawyer. But the only one that was kind of out of the ordinary for the court, was as to the alternate, and I'm not even sure if there has ever been a case that addresses how Wheeler would apply to alternates. It's unlikely that we'll use any of the alternates in this case, and even more unlikely that we'll get to alternate no. 3. But, nonetheless, just because of the fact when [ was a lawyer, just because I might not have donethat, doesn't mean that the reasonis not sufficient pursuant to Wheeler. So the Wheeler motion is denied. (ORT 1884-1885.) B. General Principles The use of peremptory challenges to remove prospective jurors solely on the basis of their membership in a racial or other cognizable groupis prohibited by the state and federal Constitutions. (People v. Zambrano (2007) 41 Cal.4th 1082, 1104; see Batson v. Kentucky, supra, 476 U.S. at pp. 84-89; People v. Wheeler, supra, 22 Cal.3d at pp. 276-277.) Under Batson, the following three-step procedure governs review of a prosecutor’s use of peremptories: First, the defendant must make out a prima facie case “by showingthatthe totality of the relevant facts gives rise to an . inference of discriminatory purpose.” [Citations.] Second, once the defendant has madeouta primafacie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutraljustifications for the strikes. (...continued) . deference on appeal. (See People v. Riccardi, supra, 54 Cal.4th at pp. 786- 787; People v. Thomas (2011) 51 Cal.4th 449, 473-474.) Here, however, the trial court expressly based its ruling on the absence of a prima facie case, and merely made an off-hand commentthat the prosecutor’s reasons were also race-neutral. (ORT 1884-1885.) 120 [Citations.] Third, “if a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponentof the strike has proved purposeful racial discrimination.” [Citation.] (Johnson v. California, supra, 545 U.S. at p. 168, internal brackets and fn. omitted, ellipsis original; People v. Zambrano, supra, 41 Cal.4th at p 1104.) Under Johnson, a defendantestablishes a prima facie case “by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” (Johnson v. California, supra, 545 U.S. at p. 170, 125 S.Ct. 2410; see also People v. Taylor (2010) 48 Cal.4th 574, 614.) “[T]he ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponentofthe strike. [Citation.]” (Purkett v. Elem (1995) 514 U.S. 765, 768 [115 S.Ct. 1769, 131 L.Ed.2d 834]; see People v. Stevens (2007) 41 Cal.4th 182, 192.) It is presumedthat a prosecutor who uses a peremptory challenge does so for a purpose other than to discriminate. (People v. Griffin, supra, 33 Cal.4th at p. 554; People v. Wheeler, supra, 22 Cal.3d at p. 278.) | C. Appellant Failed to Show A Prima Facie Case Of Discrimination As To F.G., D.B., And M.H. A defendantestablishes a prima facie case of discrimination by eeemaking a showingthat “‘the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citation.]” (Johnson v. California, supra, 545 U.S. at p. 168; People v. Howard (2008) 42 Cal.4th 1000, 1016.) Ifa trial court denies a Wheeler/Batson motion withoutfinding a primafacie case of discrimination, this Court reviews the record of voir dire for evidence to support the trial court’s ruling, and will affirm that ruling where the record suggests non-discriminatory grounds whichthe prosecutor might reasonably haverelied upon in challengingthe stricken jurors. (People v. Hoyos (2007) 41 Cal.4th 872, 900.) While the reviewing court considers “the entire record before the trial court” in determining 121 whether a prima facie case wasestablished, other types of relevant evidence include the following: “The party may show that his opponent has struck most or all of the members of the identified group from the venire, or has used a disproportionate numberof his peremptories against the group. He mayalso demonstrate that the jurors in question share only this one characteristic — their membership in the group — andthat in all other respects they are as heterogeneous as the community as a whole. Next, the showing may be supplemented when appropriate by such circumstances as the failure of his opponent to engage these same jurors in more than desultory voir dire, or indeed to ask them any questionsatall. Lastly, ... the defendant need not be a memberof the excluded _ group in order to complain ofa violation of the representative cross-section rule; yet if he is, and especially if in addition his alleged victim is a memberofthe group to which the majority of the remaining jurors belong, these facts may also be called to the court's attention.’ [Citation.]” (People v. Bonilla (2007) 41 Cal.4th 313, 342, internal brackets omitted, ellipsis original.) _ If a trial court expressly states that it does not believe that a prima facie case has been madetheninvites the prosecution to justify its challenges for the record on appeal, the issue of whether a primafacie case has been madeis not rendered moot, and there is no implied finding of a prima facie case. (People v. Howard, supra, 42 Cal.4th at p. 1018; People v. Welch, supra, 20 Cal.4th at p. 746.) On the other hand, “[wJhena trial court, after a Wheeler/Batson motion has been made, requests the prosecution to justify its peremptory challenges, then the question whether defendant has made a primafacie showingis either considered moot [citation] or a finding of a prima facie showing is considered implicit in the request [citation].” (People v. Welch, supra, 20 Cal.4th at pp. 745-746; see People v. Lenix, supra, 44 Cal.4th at p. 613, fn. 8.) Here,the trial court plainly stated that it had not found a primafacie case, but the prosecutor volunteered to provide explanations for the record 122 and the trial court agreed. (Q9RT 1881, 1884.) As previously noted, the mere fact that the prosecutor, in the absence of a prima facie case, also explained her reasons for excusing these jurors, does not constitute an implied finding of a prima facie case. (Péople v. Howard, supra, 42 Cal.4th at p. 1018.) Here, the trial court’s finding that the defense failed to make a primafacie case is supported by substantial evidence. The prosecutor provided numerousrace-neutral explanations for each of her three peremptory challenges against Black prospective jurors. 1 FG. Here, the record supports the trial court’s determination that appellant failed to establish a prima facie showing of discriminatory purpose as to F.G. He wasthe first Black prospective juror to be excused by the prosecutor. As later recounted by the prosecutor, there werestill at least six other Black prospective jurors in the venire at that time." There was no “pattern” of striking jurors of a specific race, and appellant failed to prove a primafacie case of discrimination. (Peoplev. Bell (2007) 40 Cal.4th 582, 597; see People v. Davis (2009) 46 Cal.4th 539, 583 [relevant evidence to make a prima facie showing of discriminatory “' Of course, at that time, prospective juror numbers 3747, 4826 and 6169 still remained in the venire. Additionally, three more Black prospective jurors remainedin the venire at the close of voir dire,i.e., prospective juror numbers 1348 (see 9CT 2363), 7281 (see 9CT 2310) and 0884 (see 13CT 3426). The prosecutor, on January 14, 2003, prior to sentencing, took the opportunity on the record to lay out several precise factual details regarding the prior Wheeler motion, and she identified by prospective juror numberthe three Blacks who remained on the venire whenthe parties accepted the final panel. The prosecutor also noted that defense counsel had peremptory challenges remaining, and could have used them if he was unhappy with the final composition of the jury. (14RT 3182-3184.) The prosecutor additionally identified nine Black prospective jurors from the venire who were excused for cause,i.e., prospective juror numbers 7433, 3253, 9808, 0039, 7068, 1626, 2019, 1921, and 0505. bid.) 123 exercise of peremptory challenges includes a showing that “opponent has struck mostor all of the members ofthe identified group from the venire”’].) “As a practical matter, [ ], the challenge of one or twojurors can rarely suggest a pattern of impermissible exclusion.’” Cal.4th at p. 598, quoting People v. Harvey (1984) 163 Cal.App.3d 90, 111, italics original; see People v. Box (2000) 23 Cal.4th 1153, 1188-1189 [the (People v. Bell, supra, 40 fact that three Black prospective jurors were challenged by the prosecutor was an insufficient basis for stating a prima facie case of discrimination].) Further, as to all three challenges, the prospective jurors’ responsesin their juror questionnaires and during voir dire revealed numerous obviously race-neutral reasons for the prosecutor’s challenge. (People v. Howard (1992) 1 Cal.4th 1132, 1155 [“If the record ‘suggests grounds upon which the prosecutor might reasonably have challenged’ the jurors in question, we affirm.”’].) As this Court has repeatedly stated, “[a] prospective juror’s views about the death penalty are a permissible race and group-neutral basis for exercising a peremptory challenge in a capital case. [Citation.]” (People v. McDermott (2002) 28 Cal.4th 946, 970; see People v. Booker (2011) 51 Cal.4th 141, 167; People v. Davenport (1995) 11 Cal.4th 1171, 1202.) Here, the prosecutor explained her reasons for challenging F.G.in great detail. (QRT 1881-1882.) First, the prosecutor noted that, in his questionnaire, F.G. stated that, “I believe prosecutors are not always truthful and tend to exaggerate.” (11CT 2906.) The prosecutor next expressed concern aboutthe fact that F.G. “speaks to attorneys daily, and knows50 to 60 civil or criminal lawyers.”"” (QRT 1881.) Third, F.G., on “ FG.specifically stated “civil and criminal defense attorneys,” and did not mention prosecutors, clearly indicating that he may have been biased toward the defense. (11CT 2914.) 124 his questionnaire, indicated that he did not want to sit as a juror on this case. Fourth, the prosecutor was alarmed by the fact that F.G. had been falsely arrested in 1992 by the Los Angeles County Sheriff's Department. (QRT 1881; see also 11CT 2919.) Fifth, and perhaps most importantly, the prosecutor noted that when - she was questioning F.G. during the Hovey voir dire, F.G. refused to smile at her, although he had smiled at defense counsel. (9RT 1882.) “Hostile looks from a prospective juror can themselves support a peremptory challenge.” (People v. Gutierrez (2002) 28 Cal.4th 1083, 1125.) Finally, the prosecutor pointed out that F.G. had indicated on his questionnaire that life without parole was worse for a defendant. (11CT 2939; 9RT 1881- 1882) The prosecutorstated that all of these things, in combination, indicated that “he would not be a good prosecutorial juror.” (9RT 1882.) Contrary to appellant’s claim (see AOB 151-152), during voir dire, the prosecutor asked F.G. about several of her (the prosecutor’s) aforementioned concerns regarding F.G.’s service as a juror. The prosecutor queried F.G. for an explanation as to whyhe believedlife ~ without the possibility of parole “was worse for a defendant.” (7RT 1294; see 11CT 2939.) The prosecutor also asked F.G. why he did not wanttosit as a juror on this case. (7RT 1295-1296.) Additionally, the subject of F.G.’s interaction with attorneys unquestionably came up during the prosecutor’s questioning. F:G. indicated that he could call his “defense attorney” to have her work around his schedule. (9RT 1298.) Thus, in actuality, three of the prosecutor’s stated concerns were the subject of dialogue with F.G. during his questioning by theprosecutor. Moreover, the record reveals numerous additional race-neutral reasons why the prosecutor chose to excuse F.G. First, F.G. indicated that he had seen “a lot of investigative procedures” by watching Court TV.” (11CT 2913.) Second, he believed that two ofthe three biggest problems 125 with our criminal justice system were “misleading evidence” and “wrongful accusations.” (11CT 2923.) Third, F.G. indicated that he had experienced racial prejudice in the past, and stated that Blacks were “rarely” treated fairly in our country. Fourth, he refused to give an explanation forhis view. (11CT 2927.) “An advocate may legitimately be concerned about a prospective juror who will not answer questions.” (People v. Howard, supra, 42 Cal.4th at p. 1019.) These answersall implied that F.G. was biased in favorofthe defense. | Fifth, and finally, the charges of murder and rape caused F.G.to wonder whether he could be impartial. (11CT 2928.) That answer alone, i.e., F.G.’s admission that he was biased, could have put any future - conviction at risk. Therefore, because the record suggests numerous race- neutral reasons why the prosecutor might reasonably have challenged F.G., substantial evidence supportsthe trial court’s finding of no prima facie case of discrimination. (People v. Griffin, supra, 33 Cal.4th at p. 555, fn. 5.) 2. D.B. D.B. was only the second Black juror to be challenged by the prosecutor(in fact the first to be challenged during the selection of the alternate panel). With respect to her excusal of D.B., the prosecutor offered as primary reasons that D.B. was currently on probation, and that he had once been “roughed up”by the police without cause. The prosecutor noted that it would be “highly unusual that a prosecutor would keep somebody that’s currently on probation for a criminal offense on jury, let alone a death case. (QRT 1882.) The prosecutor further noted that D.B. felt “that mental defects may alter intent, thus making death unwarranted and LWOP wouldsuffice. That’s question 219.” (QRT 1883.) The prosecutor also observed that D.B. also had expressed concerns about indigent defendants on death row who were later exonerated. Finally, the prosecutor noted that she normally did 126 not keep attorneys on her juries, because they cause “too many problems.” (bid.) Consequently, the record fully supportsthetrial court’s determination that appellant failed to establish a prima facie showing of discriminatory purpose as to D.B. (See People v. Riccardi, supra, 54 Cal.4th at pp. 786-787; People v. Thomas, supra, 51 Cal.4th at pp. 473- 474.) The prosecutor also asked D.B. about several of her (the prosecutor’s) aforementioned concerns regarding D.B.’s potential service as a juror. The prosecutor asked him abouthis conviction for driving underthe influence, and queried him regarding his current status as a probationer. (8RT 1565.) Theprosecutor asked D.B. about his status as an attorney, and whether he currently worked as an attorney. (8RT 1565-1566.) She also queried D.B. about his concerns regarding indigent defendants on death row. (8RT 1566.) Indeed, these were hardly unusual questions, as the Hovey voir dire required the prosecutor to ask questions about a prospective juror’s views about the death penalty in the abstract. (People v. Carasi (2008) 44 Cal.4th 1263, 1327.) Finally, the prosecutor queried D.B. abouthis belief that mental defects mayalter intent. (8RT 1568-1569.) Furthermore, the record reveals numerous additional] race-neutral reasons whythe prosecutor chose to excuse D.B. First, D.B. indicated that he hadat least one friend who had died as the result of running from the police. (12CT 3080.) Second, when asked about the most important problems with our criminal justice system, D.B. listed “corrupt lawyers and police” as one of the problems. Healso thought that “money buys justice.” (12CT 3082.) D.B. opined that the police did not arrest the suspect in the “Baretta” case due to his star status, and questioned whether the death penalty was fair, because “so manyare later deemed innocent.” (12CT 3096.) These answersall implied that F.G. was heavily biased in favor of the defense. (People v. Taylor (2009) 47 Cal.4th 850, 893.) 127 Thetrial court even noted as to F.G. and D.B., “And, naturally, the explanation doesn’t have to be one that the court would do,if the court was still a lawyer. But the only one that was kind of out of the ordinary for the court, wasas to the alternate [M.H., or prospective juror number 4826]... .’ (ORT 1884-1885.) Thus, even the trial court, which had the ability to personally observe the jurors and listen to their answers, considered the excusals of F.G. and D.B as unremarkable.” Therefore, because the record suggests race-neutral reasons whythe prosecutor might reasonably have challenged D.B., substantial evidence supports thetrial court’s finding of no primafacie case of discrimination. (People v. Griffin, supra, 33 Cal.4th at p. 555, fn. 5.) 3. M.H. With respect to her excusal of M.H., the prosecutorlisted her concerns as follows: 1) M.H. watched C.S.I. “all the time” and the instant case involved DNAevidence; 2) M.H. had special knowledge with regards to what it would belike to be in a jail, i.e., that it was “dark,” and that knowledge might play a part in her decision-making process; 3) M.H. foundit “difficult” to judge another and did not wantto be on the panel; and 4) M.H.indicated that the case was “‘sad” and that it would be extremely difficult for her to put someone to death. (QRT 1883-1884.) The prosecutor asked M.H. aboutseveral of her (the prosecutor’s) aforementioned concerns regarding M.H.’s service as a juror. The prosecutor asked M.H.aboutherbelief that the case was “sad” and the fact that she did not want to be a juror. She also queried M.H. about her difficulties in judging another, which were based onreligious, ‘43 The court further noted as to M.H., “But, nonetheless, just because of the fact when I was a lawyer, just because I might not have done that, doesn’t mean that the reasonis not sufficient pursuant to Wheeler.” (ORT 1885.) 128 philosophical or moral reasons. (7RT 1220-1221.) The prosecutor additionally asked M.H. about her belief that jail wasa dark place. (QRT 1865-1866.) Thus, the prosecutor asked M.H. questions aboutthree of the four concernsshe (the prosecutor) had expressed regarding M.H.’s potential service as a juror. Moreover, the record reveals numerous additional! race-neutral reasons why the prosecutor chose to excuse M.H. First, M.H. considered herself a religious person and described her Christian religion as “very important to her. (8CT 2105-2106.) Second, when asked whether she was a leader or a follower, M.H.replied, “I have a mind of my own I do what’s best forme.” (8CT 2109.) Third, M.H. had a sister with a persistent alcohol problem, which the prosecutor could have reasonably believed would have led her to be sympathetic to appellant’s alcohol problem. (8CT 2126.) Fourth, and finally, M.H. believed that the death penalty was used “randomly,” andthought that a sentence oflife without the possibility of parole was worse than a death sentence. (8CT 2138, 2140.) To besure,it is extremely unlikely that any prosecutor would want to keep a prospective juror who described the death penalty as “random.” Therefore, the record supports the trial court’s determination that appellant failed to establish a prima facie showing ofdiscriminatory purpose as to F.G., D.B. or M.H. Indeed, M.H. was only the third Black juror to be challenged by the prosecutor during voir dire (in fact, only the second during the selection of the alternate panel). The prosecutor only used three of her nine peremptory challenges against Blacks (or 33.33%). The prosecutor used one against a Native/Mexican-American (or 11.11%); and five against Whites (or 55.55%). (6CT 1568; 8CT 2098, 2204; 7CT 1886; 1OCT 2736; 11CT 2789; 2842, 2897; 12CT 3056.) That hardly constitutes a formula for racial discrimination, and thetrial court’s refusal to find a prima facie case was thus well-justified. 129 D. Even If The Trial Court Should Have Found A Prima Facie Case, Appellant’s Contention Fails Because The Prosecutor’s Stated Reasons Were Race Neutral A prospective juror’s feelings about the death penalty are reasonably related to trial strategy (see Miller-el v. Cockrell (2003) 537 U.S. 322, 339 [123 S.Ct. 1029, 154 L.Ed.2d 931]) and are a legitimate race-neutral reason for exercising a peremptory challenge (People v. Ledesma (2006) 39 Cal.4th 641, 678; People v. Montiel (1993) 5 Cal.4th 877, 910, fn. 9). Specifically, a juror’s uncertainty, reservations, or skepticism about the death penalty is a race-neutral justification for a peremptory challenge. (People v. Watson (2008) 43 Cal.4th 652, 681; People v. Ward (2005) 36 Cal.4th 186, 201.) [E]ven whenjurors have expressed neutrality on the death penalty, “neither the prosecutor northe trial court is required to take the jurors’ answersat face value.” [Citation.] If other statements or attitudes of the juror suggests that the juror has “reservations or scruples” about imposing the death penalty, this demonstrated reluctance is a race-neutral reason that can justify a peremptory challenge, even if it would not be sufficient to support a challenge for cause. [Citations.] (People v. Lomax (2010) 49 Cal.4th 530, 572, internal brackets omitted.) “Obvious race-neutral grounds” for peremptory challenges include considering life imprisonment as a more severe penalty than death. (People v. Davis, supra, 46 Cal.4th at p. 584.) A juror’s negative experience with the criminal justice system or a criminal conviction constitutes a valid, race-neutral reasons for a prosecutor to dismiss a potential juror from the panel. (People v. Lomax, supra, 49 Cal.4th at p. 575; accord, People v. Garcia, supra, 52 Cal.4th at p. 749 [negative contacts with criminal justice system].) A prospective juror’s occupation or educational background could pose a race-neutral reason for excusing the juror. (People v. Clark, supra, 52 Cal.4th at p. 907; People v. 130 Blacksher (2011) 52 Cal.4th 769, 802; People v. Reynoso (2003) 31 Cal.4th 903, 924-925 [a prosecutor “can challenge a potential juror whose occupation, in the prosecutor’s subjective estimation, would not render him or her the best type ofjuror to sit on the case for which the jury is being selected”].) As will be shown,the prosecutor’s reasons for excusing each ofthe three prospective jurors were race-neutral as recognized by well- settled case law. 1. E.G. Here, race-neutral groundsreadily supported the prosecutor’s challenge of F.G. First, F.G. believed that “prosecutors are not always truthful and tend to exaggerate.” (11CT 2906.) Appellant attempts to make muchofthe fact that F.G. had the same opinion of defense attorneys. (See AOB 173; see also 11CT 2906.) However, the two opinionsare hardly the same. The vast majority of potential jurors, or the public-at-large, might reasonably have such an opinion about defense attorneys, because their primary duty is to acquit their client. (See, e.g., People v. Bell (1989) 49 Cal.3d 502, 538, [argumentthat“it's [defense counsel's] job to throw sand in your eyes” not improper].) However, a prosecutor’s job is not to convict, but to see that justice is done. “[The prosecutor’s| interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” (Bergerv. United States (1935) 295 U.S. 78, 88 [55 S.Ct. 629, 633, 79 L.Ed. 1314].) The fact that no other seated juror had such an opinion about prosecutorsis ample evidence that F.G. held a negative view of the criminal justice system, and set him apart from the other prospective jurors. Appellant argues that “[rJather than a reason to challenge, this showed a healthy skepticism that should be valued in a juror.” (AOB 173.) Appellant concedeshis case, as one would haveto search quite diligently to find a 131 prosecutor who perceived “a healthy skepticism” about prosecutors as a desired personality trait in a potential juror. Furthermore, the fact that F.G. knew 50 or 60 attorneys and frequently interacted with the court system was a second race-neutral reason for the peremptory challenge. A prospective juror’s occupation or educational background can constitute a race-neutral reason for excusing the juror. (People v. Clark, supra, 52 Cal.4th at p. 907.) As this Court has explained, “{A]n attorney could peremptorily excuse a potential juror because he or she feels the potential juror’s occupation reflects too much education, and that a juror with that particularly high a level of education would likely be specifically biased against their witnesses, or their client’s position in the case.” (People v. Reynoso, supra, 31 Cal.4th at p. 925,fn. 6, italics original.) Moreover, the fact that F.G. wasfalsely arrested by the police constituted a third race-neutral reason. This false arrest was further compoundedbythe fact that F.G. consequently believed that two of the three biggest problems with our criminal justice system were “misleading evidence” and “wrongful accusations.” (11CT 2923; see People v. Garcia, supra, 52 Cal.4th at p. 749 [negative contacts with criminal justice system].) “A negative experience with police ... is a gender-neutral reason for exclusion. [Citations.]” (People v. Panah (2005) 35 Cal.4th 395, 442.) Onecan hardly imagine a prosecutor keeping a juror whohasstated a belief that “wrongful accusations” are one of the biggest problems with our criminal justice system. | Additionally, F.G. indicated that he had experienced racial prejudice in the past, and stated that Blacks were “rarely”treated fairly in our country. Significantly, he refused to give an explanation for this view. (11CT 2927.) “An advocate may legitimately be concerned about a prospective juror who will not answer questions.” (People v. Howard, 132 supra, 42 Cal.4th at p. 1019.) This constituted a fourth race-neutral reason for the prosecutor’s challenge. Furthermore, F.G. opined that the charges of rape and murder caused him to wonder whetherhe could be impartial. The presenceof a biased juror would havecertainly placed the prosecutor’s entire case in jeopardy. This constituted a fifth race-neutral reason for the peremptory challenge. (See People v. Blair (2005) 36 Cal.4th 686, 742, [“[t]o establish that the erroneousinclusion of a juror violated a defendant's right to a fair and impartial jury, the defendant must show either that a biased juror actually sat on the jury that imposedthe death sentence... .”].) Moreover, as asixth race-neutral reason for the challenge, the prosecutor noted that when she was questioning F.G. during the Hovey voir dire, F.G. refused to smile at her, although he had smiled at defense counsel. (9RT 1882.) “Hostile looks from a prospective juror can themselves support a peremptory challenge.” (People v. Gutierrez, supra, 28 Cal.4th 1083, 1125.) “[A] prosecutor's demeanor observations, even if not explicitly confirmed by the record, are a permissible race-neutral ground for peremptory excusal, especially when they were not disputed in the trial court.” (People v. Clark, supra, 52 Cal.4th at p. 1012.) This alone provided sufficient reason for the prosecutor’s challenge. Seventh, and finally, during Hovey voir dire, F.G. indicated that he believed that life without the possibility of parole was worse than death for a defendant. (7RT 1294; see 11CT 2939.) “Obvious race-neutral grounds” for peremptory challenges include considering life imprisonment as a more severe penalty than death. (People v. Davis, supra, 46 Cal.4th at p. 584.) The prosecutor specifically indicated that all of the aforementionedthings, in combination, indicated that F.G. “would not be a good prosecutorial juror.” (QRT 1882; see People v. DeHoyos (2013) 57 Cal.4th 79, 106-107 (“the prosecutor expressly stated that his challenge to each ofthe identified 133 prospective jurors was based on the cumulative or combinedeffect of all of his expressed reasons”|.) | The record amply reflects race-neutral grounds for challenging F.G. Accordingly, the trial court did not err in denying appellant’s Wheeler/Batson motion. 2. OD.B. Similarly, race-neutral grounds supported the prosecutor’s challenge of D.B. Most importantly, D.B. was on active probation, and indicated that he had once been “roughed up”by the police “for no reason.” (12CT 3072.) The prosecutor noted that it would be “highly unusual that a prosecutor would keep somebody that’s currently on probation for a criminal offense on a jury, let alone a death case.” (QRT 1882.) D.B. also indicated that he had at least one friend who had died as a result of running from the police. (12CT 3080.) Moreover, D.B. listed “corrupt lawyers and police” as one ofthe problems with our criminaljustice system. He also thought that “money buysjustice.” (12CT 3082.) D.B. opined that the police did not arrest suspectin the “Baretta” case due to his star status, and questioned whether the death penalty was fair, because “so many are later deemed innocent.” (12CT 3096.) D.B. expressed concern about indigent defendants on death row. “A prospective juror’s distrust of the criminal justice system is a race- neutral basis for his excusal. [Citation.]” (People v. Clark, supra, 52 Cal.4th at p. 907.) Also, D.B. was an attorney, and the prosecutor noted that she normally did not keep attorneys on her juries, because they cause “too many problems.” (9RT 1883.) In that regard, D.B. felt “that mental defects mayalter intent, thus making death unwarranted and LWOP would suffice.” (QRT 1883.) This is precisely the type of “problem”that the prosecutor feared from attorneys on the jury. As previously noted, a 134 prospective juror’s occupation or educational background canconstitute a race-neutral reason for excusing the juror. (People v. Clark, supra, 52 Cal.4th at p. 907.) The record amply reflects race-neutral grounds for challenging D.B. Accordingly, the trial court did not err in denying appellant’s Wheeler/Batson motion. 3. M.H. Numerous race-neutral grounds supported the prosecutor’s challenge of M.H. Most importantly, M.H. foundit “difficult” to judge another, described the case as “sad,” and indicated that it would be extremely - difficult for her to put someoneto death. (ORT 1883-1884.) One can hardly imagine a prosecutor keeping someone onajury in a capital case whofindsit “difficult” to judge another. Also, M.H. considered herself a religious person and described her Christian religion as “very important to her. (8CT 2105-2106.) In response to questioning by the prosecutor, M.H. indicated that her difficulties in judging another were based onreligious, philosophical or moral reasons.“* (7RT 1220-1221.) Moreover, M.H.believed that the death penalty was used “randomly,” and thoughtthat a sentence oflife without the possibility of parole was worse than a death sentence. (8CT 2138, 2140.) These aforementioned concernsall constituted valid race-neutral reasons for excusing M.H. from the alternate panel. (7RT 1220-1221; see People v. Hoyos, supra, 41 Cal.4th at pp. 902-903 [a prospective juror's equivocation about the death “ Appellant’s claim that “the prosecutor, in most instances, did not even question the prospective jurors about the prosecutor’s claimed areas of concern,” is simply incorrect and belied by the record. (See AOB 170-171; see also 7RT 1220-121 [prospective juror number 4826]; 7RT 1294-1297 [prospective juror number 2041]; 8RT 1565-1570 [prospective juror number 3747].) . 135 penalty and strong religious beliefs against capital punishmentprovide race-neutral reasons for a prosecutor's decision to exercise a peremptory challenge]; see also People v. Pearson (2013) 56 Cal.4th 393, 422.) Furthermore, M.H. watched “C.S.I.” all the time, and the instant case involved DNA evidence. M.H.had special knowledge about what it was like to be in jail, and described it as a “dark” place. (QRT 1865-1866, 1883- 1884; see also 8CT 2125.) The prosecutor’s belief that M.H. held special knowledge that might be disruptive or harmful to the People’s case also constituted a race-neutral reason for the challenge. (See People v. Landry (1996) 49 Cal.App.4th 785, 790-791 [peremptory challenge properly based on juror's educational background and experience in psychiatry or psychology].) This was especially true in the instant case, where M.H.’s view ofjail as a “dark” place might sway the other jurors to impose life without the possibility of parole as a just punishment. Furthermore, M.H. had a sister with a persistent alcohol problem, whichthe prosecutor could have reasonably believed would have led her to be sympathetic toward appellant’s alcohol problem. (8CT 2126.) This was particularly important in the instant case, as the prosecutor knew that appellant would rely on his alcoholism as an excuse to avoid the death penalty. M.H., given hersister’s struggles, would obviously be sympathetic to that argument. Finally, M.H. indicated that she had a mindofher own and did what wasbest for her. (8CT 2109.) The prosecutor could have obviously viewedthat attitude as a disruptive presence in the jury room,andthatalso constituted a race-neutral reason for her removal. “A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons.” (People v. Lenix, supra, 44 Cal.4th atp. 613.) Additionally, in People v. Reynoso,this Court noted: 136 If the prosecutor's occupation- and demeanor-based reasons for excusing Elizabeth G. were indeed pretextual, and he was in actuality bent on removing her from the jury because of her Hispanic ancestry, his acceptance of the jury 14 times with Elizabeth G. seated in the jury box, on four such occasions with a second Hispanic prospective juror also seated on the jury, was hardly the most failsafe or effective way to effectuate that unconstitutional discriminatory intent. (People v. Reynoso, supra, 31 Cal.4th at p. 926, footnote omitted.) Likewise, here, the prosecutor accepted the alternate panel twice with M.H.remaining on the panel, which is hardly evidence of discriminatory intent. (See People v. Lomax (2010) 49 Cal.4th 530, 576 [acceptance of panel containing African-American strongly suggests that race was not a motive in the challenge].) Clearly, M.H.’s race had nothing to do with the prosecutor’s peremptory challenge againsther. Therefore, the prosecutor thus provided race-neutral reasons for each of her questioned peremptory challenges, and thetrial court accepted these reasons as genuine. (9RT 1884.) Typically, an appellate court has only a cold transcript, exhibits, and papers from thetrial court's file to go on. Even when a videotape is available we cannot experience what the trial judge experienced-- the nuances,the inflections, the body language whichtraditionally form part of the basis on which credibility is evaluated by triers of fact. Despite technology, credibility determinations require a personal presencethat a cold transcript cannot convey. (Abbott v. Mandiola (1999) 70 Cal.App.4th 676, 682-683; see also People v. Reynoso, supra, 31 Cal.4th at p. 918, fn. 4.) Here, the record amply reflects race-neutral grounds for challenging F.G., D.B., and M.H. Indeed, even defense counsel appeared to be satisfied with the prosecutor’s explanations. After the prosecutor finished stating her reasons,the trial court specifically asked defense counsel if he wanted 137 to respond. Defense counsel simply replied, “No.” (ORT 1884.) As previously noted, the trial court then ruled that there was an insufficient showingto state a prima facie case and, even if such a showing had been made, “the prosecution has explained race neutral reasons for excusing the jurors.” (QRT 1884.) Accordingly, the trial court did not err in denying appellant’s Wheeler/Batson motion. E. Comparative Juror Analysis This Court has stated that comparative juror analysis is appropriate for the first time on appealat the third step of the Wheeler/Batsontest, if an appellant relies upon such an analysis on appeal and “the record is adequate to permit the urged comparisons.” (People v. Lenix, supra, 44 Cal.4th at p. 622.) “The reviewing court need not consider responsesby stricken panelists or seated jurors other than those identified by the defendant in the claim of disparate treatment.” (/d. at p. 624.) In conducting such an analysis, the issue is not whether the challenged prospective jurors are similarly situated to jurors who were accepted, but whether the record showsthe party exercising the peremptory challenges honestly believed the jurors were not similarly situated in legitimate respects. (People v. Lewis (2008) 43 Cal.4th 415, 472; People v. Huggins (2006) 38 Cal.4th 175, 233.) “Trial lawyers recognize that it is a combination of factors rather than any single one which often leads to the exercise of a peremptory challenge. In addition, the particular combination or mix ofjurors which a lawyer seeks may, and often does, changeas certain jurors are removed or seated in the jury box.” (People v. Reynoso, supra, 31 Cal.4th at p. 918; see also * Appellant argues thatthe trial court failed to undertake a sincere and reasonable evaluation of the prosecutor’s explanations. (AOB 134- 135.) However, given that defense counsel offered no opposition and apparently accepted the prosecutor’s reasons,thetrial court could hardly be expected to expoundat length on them. 138 People v. Johnson (1989) 47 Cal.3d 1194, 1220-1221.) “One of the problems of comparative juror analysis not raised at trial is that the prosecutor generally has not provided, and was not askedto provide, an explanation for nonchallenges.” (People v. Jones (2011) 51 Cal.4th 346, 365.) A comparative juror analysis is not required for the first time on appeal wherethetrial court finds that the defense failed to make out a primafacie case. (People v. Bell, supra, 40 Cal.4th at pp. 600-601; People v. Bonilla, supra, 41 Cal.4th at p. 350.) As discussed above, appellant’s Wheeler/Batson motionas to F.G., D.B. and M.H.was denied after the trial court concluded that appellant failed to make a prima facie showing ofa discriminatory exercise of peremptory challenges. Thus, a comparative juror analysis as to these prospective jurorsis of little value and is not required in the instant case. (People v. Taylor, supra, 48 Cal.4th at pp. 616-617 [declining to engage in comparative analysis at first-stage Wheeler/Batson analysis]; see also People v. Bonilla, supra, 41 Cal.4th at p. 350.) Regardless, in the event a comparative juror analysis would somehow be helpful to this Court, such an analysis of the points raised by appellant in his openingbrief plainly demonstrates that there was no disparate treatment. Appellant presents his comparative analysis by subject, rather than by individual prospective juror (see AOB 171-175), and thus respondent will do the samefor ease of reference. Appellant first argues that numerous seated jurors expressed a reluctance to serve on the jury. (AOB 172-173.) The prosecutor cited this reason (as one of many) for his excusal of F.G. and M.H. QRT 1881, 1884.) However, the prosecutor mentioned this “reluctance” reason as to F.G. and M.H.only in passing,as a collateral concern, (See People v. Gray (2005) 37 Cal.4th 168, 189 [“a party may decide to excuse a prospective 139 Juror for a variety of reasons, finding no single characteristic dispositive.’’].) Moreover, F.G. was very specific about the timeline for an upcoming civil trial, where he anticipated being called as a witness (see 7RT 1296- 1297), to the point wherethetrial court even offered to intercede with the Santa Monica court if necessary. Thetrial court specifically ordered F.G. to remind the court if he was selected to serve as a juror. (7RT 1294, 1297.) Clearly, this comprised more than the “reluctance” expressed by the other jurors. This constituted a “conflict,” which the prosecutor could have simply sought to avoid by excusing F.G. M.H.also expressed far.more than mere reluctance. She indicated on her questionnaire that she foundit difficult to judge another’s guilt or innocence, and wrote that she would do her “best” as a jurist, which was hardly reassuring. (8CT 2106.) Appellant fails to identify any seated juror whoindicated that he or she would have difficulty judging another due to religious, philosophical or moral reasons. (See 7RT 1220.) The closest seated juror appellant proffers is juror number 7421, who indicated that she would feel “uncomfortable” in response to the same question (question number 30). (4CT 989.) M.H.’s argumentas to juror number 7421 fails in numerousrespects. First, virtually any juror would feel “uncomfortable”in a capital case, whichis a far cry from findingit “difficult” to judge the guilt or innocence of another, whichis the very core function of a juror. Second, contrary to appellant’s argument, juror number 7421 was neither “white” nor “male.” Rather, she was a Japanese female. (4CT 981.) Third, juror number 7421 wasvery different from M.H. in many other ways,i.e., juror 7421 did not describe her religion as “very important”to her, she did not describelife without parole as worse than death, and she did not describe jail as a “dark” 140 place. (4CT 988-989, 1023.) In this regard, M.H. was notsimilarly- situated to any of the seated jurors. Appellant next addresses F.G.’s and D.B.’s biases against prosecutors and law enforcement, as well as their negative experiences with law enforcement. (See AOB 173.) The differences here between the excused and seated jurors are even more evident. Appellant fails to identify any other juror who,like F.G., was actually “falsely” arrested for a crime. He fails to identify any other juror who thoughtthat prosecutors “are not always truthful and tend to exaggerate.” (11CT 2906.) Indeed, it is hard to imagine any prosecutor keeping a potential juror with that opinion. As previously noted, it is one thing to have such an opinion about defense counsel, but an entirely different matter to express that opinion about prosecutors in a capital case. This was in addition to F.G.’sopinion that “misleading evidence” and “wrongful accusations” were two ofthe three biggest problems with our criminal justice system. (See 11CT 2923.) Likewise, appellantfails to identify any other juror who was on active probation. Indeed, the prosecutor specifically stated as to D.B., “I think it’s highly unusual that a prosecutor would keep somebody that’s currently on probation for a criminal offense on a jury, let alone a death case.” (ORT 1882.) Moreover, D.B. indicated that he was “roughed up”by the police “for no reason,” which clearly indicated that he might be biased against law enforcement. (12CT 3072.) Appellant does, however, point to seated juror number 4635, who may have had a “conviction” for driving under the influence. However,the prosecutor never cited D.B.’s conviction as a reason, or even cited a “conviction”as a reason at all. “Whatever use comparative juror analysis might have in a third-stage case for determining whether a prosecutor's proffered justifications for his strikes are pretextual, it has little or no use wherethe analysis does not hinge on the prosecution's actual proffered 141 rationales, and we thus decline to engage in a comparative analysis here.” (People v. Bonilla, supra, 41 Cal.4th at p. 350.) Here, rather, the prosecutor was concerned aboutthe fact thatD.B. wasstill on probation. Moreover, juror number 4635 did not hold the negative perception of the criminal justice system expressed by F.G. Indeed, he certainly had not been “roughed up”by the police “for no reason.” Furthermore, with respect to juror number 4635, it is unclear whether | the prosecutor or defense counsel even realized that he potentially had a DUIarrest or conviction. Strikingly, neither party asked him aboutit during voir dire, which was highly unusual. (7RT 1278-1284.) There is little evidence in the record that either the defense or the prosecution was. even aware of 4635’s potential DUI arrest or conviction. First, in response to question 78, juror number 4635 indicated that he had experienced contact with law enforcementin the past, but he unfortunately left the “type of contact” portion of the answer blank, and neither party asked him about it. (See 4CT 886.) Moreover, juror number 4635 checked “no” when asked if he had any negative experiences with law enforcement, which would seem to imply that he had never beenarrested. (4CT 887.) Indeed, if he had been arrested, unlike F.G. or D.B., 4635 certainly did not hold a grudge aboutit. Furthermore, when asked if he had ever been to court, juror number 4635 checked “yes”andlisted “traffic ticket” as a reason, but not a DUI arrest or conviction. (See 4CT 889.) Additionally, when asked if he had ever been a defendantin a court proceeding, juror number 4635 checked “no.” (4CT 893.) That alone seemedto indicate that he did not have any - arrests or convictions. However, in response to question number 100, juror number 4635 replied that he had “visited” or “been inside”a jail, and he listed “drunk driving” under “Charges & Arresting Agency.” (4CT 895.) 142 It thus seems clear from his questionnaire that juror number 4635 was simply visiting someonein jail for drunk driving. However,it is also possible that the prosecutor and defense counsel may simply have missed this potential arrest or conviction information due to the vague nature of the answers on his questionnaire. Appellant certainly did notraise this point as an issueat trial during his Wheeler motion, when the prosecutor could have ascertained whether juror number 4635 had been arrested or was simply visiting someoneelse, or alternatively explained that she (the prosecutor) had simply missedthat potential DUIarrest or conviction information on his questionnaire. Moreover, juror number 4635 had formerly been employed by the California Highway Patrol, which the prosecutor could have deemed as a favorable trait. (See 4CT 876.) He also indicated that he made charitable donations to the Long Beach Police Department. (See ACT 881.) He checked “no” when asked if he knew anyone who hadbeenfalsely accused of a crime. ‘Juror number 4635 did indicate that he had witnessed a violent incident, i.e., two police “beating someone,” but he did not indicate whether the person being beaten wasresisting arrest, or whether the force was reasonable. (See 4CT 892.) He even indicated that he called the police about the incident, perhapsto assist the police involved in the altercation. (4CT 895.) As with the potential DUI, neither party asked juror number 4635 aboutit during voir dire, so the details regarding that event, whether they were favorable or unfavorable to law enforcement, are unknown. (7RT 1278-1284.) Additionally, it is unknown whethereither party even noticed that information on the questionnaire. Finally, juror number 4635 did not believe that life without the possibility of parole was worse for a defendant (see 7RT 1281), nor was he on probation. Likewise, he was not a lawyer and he did not work with 143 lawyers on a daily basis. Thus, juror 4635 was not even remotely similar to prospective jurors F.G. and D.B. Next, appellant claims that seated juror number 8868 had “a friend” who wasa city attorney, which according to appellant is somehow equivalent to the 50 or 60 civil and criminal defense attorneys that F.G. worked with on a daily basis. (SeeAOB 173-174.) Appellant compares apples and oranges, as simply knowingoneattorney is hardly equivalent to working with 50 or 60 attorneys, or some numberofthem, on a daily basis. Such a comparison is specious. Finally, appellant claims that alternate juror number 9343 also watched C.S.I., but he fails to mention that M.H. further indicated, “I watch C.S.I. all the time.” (8CT 2125.) In fact, none of the seated jurors, unlike M.H., checked C.S.]J. as the only program they watched from thelist of 26 showson the questionnaire. (/bid.) M.H.wasclearly fascinated by C.S.1. Unlike M.H., juror number 9343 believed that death was worse than life without the possibility of parole, and he did not indicate that the death penalty was used “randomly.” (6CT 1449; see also 8CT 2138.) Evena cursory review ofthese two jurors indicate that they were not substantially similar, but appellant attempts to mold them as such by pointing to the answerto a single question. Aspreviously noted, with respect to F.G., D.B., and M.H., the prosecutor specifically stated that, in her analysis, it was a “combination” of factors that caused her to excuse a prospective juror, rather than any one particular thing. The prosecutor aptly noted: AndI felt that all of those things, in combination, in addition to the fact that when I was questioning him in Hovey, he refused to smile at me, although he smiled at the defense, all of that, to me, indicated that he would not be a good prosecutorial juror. (ORT 1882.) 144 Appellant errs by repeatedly attempting to use a comparative analysis of a single factor or question as evidence of discriminatory intent. With a 53-page, 237-question jury questionnaire, respondenthaslittle doubtthat appellant could parse through the answersof the 12 seated and four alternate jurors ad nauseam and find individual answersthat were similar to a few of those of the three excused Black prospective jurors. However, appellant, with his brief argument, wholly fails to demonstrate that either F.G., D.B., or M.H. were even remotely similar to any of the seated jurors. Appellant thus fails to identify any seated juror who, as a whole, was _ substantially similar to any one of the three Black prospective jurors excused by a prosecutorial peremptory challenge. Accordingly, the identified jurors’ responses were not comparable as a whole, or even substantially in part, and appellant’s comparative juror analysis should be soundly rejected. (See People v. Watson (2008) 43 Cal.4th 652, 675-676 (“None of the jurors brought to our attention by defendant expressed a substantially similar combination of responses to the responses provided by L.M.”}.) F. Prejudice Respondent recognizes that Wheeler/Batson error is reversible perse. “The exercise of even a single challenge based on raceis constitutionally proscribed.” (People v. Howard, supra, 42 Cal.4th at p. 1018, fn. 10.) “To be sure, the ultimate issue to be addressed on a Wheeler—Batson motion “‘is not whetherthere is a pattern of systematic exclusion; rather, the issue is whether a particular prospective juror has been challenged because of group bias.” (People v. Bell, supra, 40 Cal.4th at p. 598,fn. 2.) However, these casesall refer to prospective jurors who could have been seated on theprimary panel. In other words, the defendant’sright to an impartial jury could not have been violated if the prospective juror could never have been seated on the jury. This Court has held that, quite simply, 145 if an alternate juror could never have beenseated, then there could be no prejudice. (People v. Mills, supra, 48 Cal.4th at p. 182 [“L.L. was considered as an alternate juror only and, as defendant concedes, no alternate juror served in this case; the original 12 jurors tried the case to its termination. Althoughit is therefore unnecessary to consider whether any Wheeler/Batson error occurred as to this juror, as any error in this regard would necessarily be harmless . . . the prosecutor's reasons for challenging her, if found unsupported by the record, can—when coupled with the [other] challenges . . . be considered part of an overall and deliberate plan to remove all African—Americans from the jury in violation of his constitutional rights”.]; see also People v. Roldan (2005) 35 Cal.4th 646, 703, overruled on other grounds as stated in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) Here, alternate jurors D.B. and M.H., the third and fourth alternates respectively, could never have been seated on the jury, because thetrial court only usedthe first alternate juror during the trial, and it selected alternates in order, rather than randomly. (QRT 1868.) Thus, even if D.B. and M.H. were somehow excludedonthe basis of race, there is simply no manner in which appellant could have been prejudiced,or that his right to an impartial jury could have been impacted, by their excusal. (Compare People v. Bandhauer (1970) | Cal.3d 609, 617-618,[“‘the error, if any, in excluding a venireman by reason of his views on capital punishment was harmless beyond a reasonable doubt where,at the time of the ruling, the regular panel of 12 jurors had been chosen, the prospective juror was under consideration solely as an alternate juror, and, as matters turned out, no alternate juror was called upon to participate in the deliberations of the jury”’].) Indeed, alternate jurors do not participate in deliberations, and they are not permitted to discussthe case prior to deliberations. (See People v. 146 Cottle (2006) 39 Cal.4th 246, 257 [“alternate jurors are treated distinctly under the code, thus supporting the conclusion that ‘the jury is sworn’ is a phraserelating only to the 12 trial jurors and notthe alternates”].) Quite simply, there is method by which D.B. or M.H. could have impacted the verdict in any way. They had absolutely no effect on the final composition of the jury. Moreover, they could not have impactedthe alternate panel in any way, because defense counsel had already used his four peremptory challenges, and the prosecutor usedhis last two challenges to exclude D.B. and M.H. (9RT 1870, 1876.) Thus, because appellant’s aforementionedright to an impartial jury could not have been impactedin this case, appellant could not have been prejudiced by the exclusion of D.B. or M.H. This holds true regardless of appellant’s reliance on boilerplate invocations of various provisions ofthe state and federal Constitutions. (See People v. Yeoman (2003) 31 Cal.4th 93, 118 [“Defendant's unelaborated citations to the Fifth, Sixth and Eight Amendments to the United States Constitution add nothing to his argument”’|.) IV. THE TRIAL COURT PROPERLY EXERCISED ITS DISCRETION TO EXCLUDE THE VICTIM’S TOXICOLOGY REPORT; IN ANY EVENT, ANY ERROR WAS HARMLESS Appellant contendsthat the trial court’s exclusion of the victim’s toxicology report violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution, including his rights to due process of law,a fair trial, a jury determination ofthe facts, confrontation, and effective assistance of counsel. He further argues that the exclusion of the toxicology report somehow violated the “prohibition against imposition of cruel and unusual punishmentin the Eighth and Fourteenth Amendments and the California Constitution.” (AOB 178-189.) Respondent disagrees. 147 A. Relevant Proceedings Beforetrial, the prosecutor sought to exclude evidence of the victim’s toxicology report. (6RT 868.) At the time, the defense did not anticipate offering the evidence during the guilt phase, but indicated that it would “definitely” offer the evidence during the penalty phase. (/bid.) However, on November 13, 2002, immediately prior to swearing in the jury, defense counsel alerted the trial court that the defense had reconsidered the use of the victim’s toxicology report during the guilt phase. (LORT 1890-1891.) Defense counsel arguedthat the toxicology report corroborated appellant’s confession, which includedhis description of the victim making racial epithets to appellant and his companions. (See, e.g., LORT 2137.) Appellant told police the victim yelled, “Fuck you, niggers,” to both him and his companions. (10RT 2102.) Defense counsel wanted jurors to believe appellant’s entire confession, including that only Pearson, rather than appellant, used the stick as a weapon.*° (1LORT 1894.) Defense counsel argued that the toxicology report corroborated appellant’s confession, in that a woman “in her right mind, isn’t going to say somethinglike that.” (ORT 1892.) Thetrial court concluded that any corroboration was minimal in comparison to the amount of time that presenting the evidence would require. (LORT 1894.) Defense counsel proposed a stipulation to the toxicology report, but the People were unwilling to stipulate during the guilt phase. (LORT 1895.) Defense counsel then pointed out the coroner would be in court testifying for hours anyway,and he further argued that part of the autopsy report included the toxicology screening results. However, the prosecutor “© Ofcourse, as previously noted,the jury either foundall ofthe personal use allegations not true, or was unable to reach a verdict on those allegations, rendering defense counsel’s concerns mootin any event. (3CT 597-607; 12RT 2527-2534.) 148 countered that additional witnesses and time wouldstill be required, because the coroner would notbeableto testify as to how long the drugs had been in Penny’s system. The prosecutor noted that the drugs may have largely metabolized by the time of the murder. (LORT 1895-1896.) Defense counsel continuedto press the point, arguing that this additional topic would notsignificantly add to the time required. (LORT 1896-1897.) Ultimately, defense counsel planned to introduce appellant’s observations that the victim appeared to be underthe influencebyeliciting the corroborating statements that appellant made during his interrogation. (ORT 1897.) Thetrial court ruled that it would not preclude defense counsel from exploring this topic, but held that the toxicology report could not be admitted until the penalty phase. (LORT 1898, 1902.) The prosecutor’s opening statement acknowledged that the victim had made “some racial remarks.” (LORT 1913.) Defense counsel, in his opening statement, indicated that Penny yelled out “a racial slur, something to the effect of “Fuck you, niggers.” (LORT 1919.) During his cross- examination of Detective Prell, defense counsel elicited the fact that, during his confession, appellant told Detective Prell “that he thought maybe the female was drunk or on drugs.” (11RT 2184.) During the penalty phase, the parties stipulated to the relevant contents of the toxicology report. (12RT 2690.) B. The Victim’s Toxicology Report Was Properly Excluded , Evidenceis admissible only if it is relevant. (Evid. Code, § 350 [“No evidence is admissible except relevant evidence”].) The test of relevancyis not whether the evidence conclusively establishes a material fact; rather, evidenceis relevant if it “tends, logically, naturally, or by reasonable inference to establish a material fact... .” (People v. Peggese (1980) 102 Cal.App.3d 415, 420.) Evidence leading only to speculative inferencesis 149 irrelevant. (People v. Kraft (2000) 23 Cal.4th 978, 1035.) “[T]he trial court is vested with wide discretion in determining relevance and in weighing the prejudicial effect of proffered evidence against its probative value. Its rulings will not be overturned on appeal absent an abuseofthat discretion.” (People v. Edwards (1991) 54 Cal.3d 787, 817.) Thus, reversal is not required unless defendant can show thatthe trial court “exercised its discretion in an arbitrary, capricious or patently absurd 999mannerthat resulted in a manifest miscarriage ofjustice.’” (People v. Rodrigues, supra, 8 Cal.4th at p. 1124, quoting People v. Jordan (1986) 42 Cal.3d 308, 316.) Here, Penny’s toxicology report was properly excluded asirrelevant. Defense counsel’s claim that evidence of Penny’s intoxication would support appellant’s statement to the police about her confronting his party with inflammatory racial slurs is purely speculative. A person’s intoxication level has no “tendency in reason”to prove heorsheislikely to utter racial slurs. (Evid. Code, § 210; see People v. Babbitt (1988) 45 Cal.3d 660, 681-682 [Speculative inferences that are derived from evidence cannot be deemedto be relevant to establish the speculatively inferred fact in light of Evidence Code section 210, which requires that evidence offered to prove or disprove a disputed fact must have a tendency in reason for such purpose.”].) Evenif it did, the defense’s proffered evidence lacked any insight into how Penny would have responded to intoxication, that is, whether Penny was more,orless, likely to have uttered inflammatory racial slurs because she wasintoxicated. In People v. Stitely (2005) 35 Cal.4th 514,the parties stipulated that the victim’s autopsy report indicated that she was intoxicated. The defendant, however, sought to prove the victim was intoxicated under the Vehicle Code standards and to introduce expert testimony to show how a certain level of blood-alcohol level would affect people in general. (/d. at 150 pp. 548-549 & fn. 17.) The defendant plannedto use evidence of intoxication to prove that the victim impulsively consented to sexual intercourse. (/d. at p. 549.) The Stitely Court held: Thetrial court properly excluded defendant’s evidence on relevance grounds. [Citation.] Nothing in the offer of proof showed how[the victim’s] blood-alcohol content and intoxication affected her judgment and behaviorthe night she waskilled, or increased the chancethat she did, in fact, consent to vaginal and anal intercourse. Defendant essentially wanted jurors to speculate on intoxication, inhibition, and impulse. Speculative inferences are, of course, irrelevant. [Citation.] (Ud. at pp. 549-550.) Similarly, any evidence of Penny’s intoxication in the toxicology report would simply haveinvited the jury to speculate on its effect on Penny during the evening hours of December28, 1998. Such a speculative inference wasirrelevant and properly excluded. (See People v. Kelly (1992) 1 Cal.4th 495, 523 [the trial court properly excluded evidence of victim’s substance abuse which,“without more, would be meaningless to a jury’s consideration of the victims’ conduct”’].) The evidence wasalso irrelevant on the issue of specific intent. Contrary to defense counsel’s claim (see AOB 186-188), Penny’s possible intoxication had no bearing upon appellant’s intent. Appellant told the police that, while he wasat the crimescene,his participation was minimal and only at Pearson’s direction. (ORT 2105, 2138-2139; 1IRT 2169, 2417.) Indeed, appellant claimed that Pearson’s rape of Penny “was sickening to watch.” (ORT 2145; 11RT 2188.) Moreover, the prosecutor never presented any evidence, or argued, that Penny did not makethe racial remarks. Indeed, during her opening statement, the prosecutor conceded, “You will hear testimony or evidence that she made someracial remarks, and that the defendant and his companions approachedheras a result of these.” (LORT 1913.) Defense 151 counsel further noted in his opening statement, “[Appellant] tells the police that she appeared to be underthe influence of drugs or alcoholat the time of this incident.” (1ORT 1919-1920.) During her closing argument, the prosecutor even asked the jury to believe appellant’s statement that “he’s the one that first attacked her.” (11RT 2379.) Moreover, for the same reasons, the evidence of Penny’s intoxication had no relevance on appellant’s intent to aid and abet in the underlying felonies for felony murder. (See AOB 187-188.) Accordingly, the evidence wasirrelevant and properly excluded. (See People v. Rodrigues, supra, 8 Cal.4th at p. 1125 & fn. 29 [“the proffered evidence [of the victim’s relationship with his brother] hadlittle, if any, significance to the vital issues in the case against defendant” wherethe defense case was not based on the theory that the brother might have killed the victim and there was no evidenceto support such a theory].) Penny’s toxicology report was therefore properly excluded under Evidence Codesection 352*’ since the evidence was,at its very best, collaterally relevant to the unchallenged racial remarks. On the other hand, the likelihood of undue consumption of time and confusion to the jury was | great. Indeed, had it been admitted, the prosecutor would have been required to call his own expert to testify as to the possible ability of the to elicit such racist remarks, and the trial would have degenerated into an lengthy irrelevant sideshow on a collateral matter oflittle importance. This would have been distracting and confusing to the jury. Under the circumstances,the trial court properly exercised its discretion to exclude the evidence. (1ORT 1989, 1902.) “7 Although the trial court did not directly cite Evidence Code section 352,it did refer to the undue consumption of time that would be required to present the toxicology evidence. (1ORT 1895.) 152 C. Any Error Was Harmless In any event, even assumingthat the trial court should have admitted Penny’s toxicology report during the guilt phase, any error was clearly harmless. Initially, appellant argues that the standard of Chapmanv. California, supra, 386 U.S.at page 24, should apply here because evidence of significant probative value was excluded, depriving him ofvariousrights underthe United States Constitution. (AOB 188.) However, the applicable standard in this case is that ofPeople v. Watson (1956) 46 Cal.2d 818, 836, i.e., if a trial court erroneously excludes evidence, the defendant must show on appeal thatit is reasonably probable he or she would have received a more favorable result had that evidence been admitted. ([bid.; see People v. Rodrigues, supra, 8 Cal.4th at p. 1125.) Further, “the application of ordinary rules of evidence like Evidence Code section 352 does not implicate the federal Constitution... . [Citations.]” (People v. Marks (2003) 31 Cal.4th 197, 227.) As this Court explained in People v. Cunningham (2001) 25 Cal.4th 926, while “the complete exclusion of evidence intended to establish an accused’s defense may impair his or her right to due process of law, the exclusion of defense evidence on a minoror subsidiary point does not interfere with that constitutional right. [Citation.]” (/d. at p. 999.) Here, as Penny’s toxicology report had, at best, only slight probative value and concerned a minoror subsidiary issue, the applicable harmless error standard is the less stringent Watson standard. Applying the Watson standard,it is not reasonably probable that appellant would have received a more favorable result had Penny’s toxicology report been admitted during the guilt phase. Unquestionably, there was strong evidence to support the jury’s verdict. Indeed, near the beginning of his opening statement, appellant’s defense counsel plainly stated: 153 Firstofall, this is an unusual time for a defense attorney to, basically, make a concession speech, but I am,basically, conceding to you the guilt of my client as to most of these crimes and these allegations against him. Weare disputing some, but, basically, we are admitting guilt in this case as to most of these charges. (ORT 1916-1917.) Moreover, in his statementto the police, appellant admitted biting Penny on herleft breast during the murder. (LORT 2137.) Appellant said that he removed Penny’s shoes, intending to throw them on top of a building. (LORT 2103-2104, 2139.) Appellant, angry at Pennyfor striking him during the initial confrontation, at one point punched Penny twice in the jaw with a closed fist. (LORT 2147; 1IRT 2169, 2188.) Penny was on her back when hepositioned himself above her and punched her. (10RT 2146.) Appellant also collected Penny’s clothing, and threw awaythestick that one of the men had usedto violate Penny. (LORT 2150; 11RT 2190.) Appellant admitted being the one whopulled the stick out of Penny’s vagina. (LORT 2150.) Furthermore, appellant’s leather jacket had a mixture of DNA onit, with major and minor contributors. (LORT 1995-1996.) Penny was a major contributor. Codefendant Armstrong was a possible donor for the minor types on the leather jacket. (1ORT 1996.) The brown pants contained a DNA sample that was a clear match to Penny. (10RT 1999.) Based onhis scientific analysis, Criminalist Colman concluded that the bite mark sample consisted of appellant’s and Penny’s DNA. (1ORT 2000, 2006.) Based on two different methods of calculation, each based on different assumptions, “8 Despite strong advisements otherwise from his counsel on the record, appellant elected to wearjail clothes starting out the trial, but then changedto civilian clothes, and finally changed backto jail blues for the penalty phase. (6RT 881, 883-884, 893, 1064; 12RT 2541-2542.) 154 Criminalist Colman concluded that the bite mark was made byappellant. (LORT 2006-2012.) Additionally, the portion of appellant’s statements to the police which minimized his own involvementwereself-serving and not credible. From the very beginning, appellant tried to minimize his involvementin the horrific crimes against Penny. (11RT 2405, 2416-2417.) Indeed, during his interview with the police, appellant initially denied everything throughout his first two unrecorded statements. (LORT 2076, 2079, 2089.) After the police proved to him that they had already arrested Armstrong, appellant gave a different version of the events, still minimizing his own involvement, but blaming Pearsonfor all the decision-makingthat night, and for the majority of the heinousinjuries inflicted upon Penny. (LORT 2145; LIRT 2188.) Although appellant claimed that he was afraid of Pearson (see 11RT 2186), there was no evidence whatsoeverthat he feared Pearson either before December28, 1998, or after that date. Appellant claims that there was“little to show”that he “premeditated the murder, or had the specific intent to inflict pain required for torture by murder.” (AOB 188.) Appellant, of course, simply ignores the factthat, among other things, he helped Pearson and Armstrong get Penny over the fence, removed Penny’s shoesso that she would havedifficulty running away, bit Penny at least twice, punchedherin the face with a closedfist at least twice, and “jacked”the stick from her vagina. (LORT 1931, 1964, 1968, 2138-2139, 2147, 2150; LIRT 2169, 2188, 2351.) Moreover,at best, appellant stood by and watched as Pearson stomped Penny to death with his “Redwood”boots, or, at worst, he held Penny down while Pearson stomped on her. (LORT 2148; LIRT 2166- 2167, 2189.) Penny’s devastated corpse bearing 114 separate injuries was ample proof that appellant had the requisite specific intent. (LORT 1964.) 155 Quite simply, Penny was dragged, beaten, raped, stomped, bludgeoned, asphyxiated and impaled to death. Finally, appellant fails to recognize that the jury did hear evidence that Penny uttered racial epithets, and they also heard evidence that Penny waseither intoxicated or high on drugs. (11RT 2184, 2186; 1ORT 2137- 2138.) Defense counsel elicited the fact that appellant told Detective Prell that somethingjust “clicked” when Penny madethe racial slur. (1IRT 2180.) Defense counsel, during his cross-examination of Detective Prell, also specifically elicited the fact that appellant told Detective Prell that he thought Penny “was drunk or on drugs.” (11RT 2184.) In his opening brief, appellant even concedesthat the “evidence wasthat [he] engaged with [Penny] after she yelled a racial slur at [appellant] and his companions.” (AOB 228-229.) Thus, the jury heard the evidence in any eventand appellant’s right to present a defense wasnotviolated. Further cumulative evidence on this collateral point would have hardly made a difference in this terrible case. Thus, even if Penny’s toxicology report had been admitted into evidence, it would have, at best, had only a slight corroborating effect on appellant’s claim that the assault followed Penny’s inflammatory racial slurs. Indeed, the jury sentenced appellant to death even after learning about the toxicology report during the penalty phase. Clearly, therefore, the toxicology report had absolutely no impact on the jury’s decision-making. Underthe circumstances, there is no reasonable probability or possibility that appellant would have obtained a morefavorable outcomeif the court had admitted Penny’s toxicology report. For the same reason, any error was harmless under the more stringent Chapman standard as well. 156 V. APPELLANT HAS FAILED TO DEMONSTRATE THAT EITHER HIS FEDERAL OR STATE CONSTITUTIONAL RIGHTS WERE VIOLATED BY THE TESTIMONYOF THE DEPUTY MEDICAL EXAMINER; IN ANY EVENT, ANY ERROR WAS HARMLESS Appellant contends that the judgment of death, and the judgment of guilt on counts 1 and 3 through 8 must be reversed becausethetrial court erroneously admitted testimonial hearsay by permitting Deputy Medical Examiner Dr. Djabourianto testify regarding procedures performed by other doctors. Appellant claims this testimony violated the Fifth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution, as well as Article I, Section 17, of the California Constitution. (AOB 190- 218.) Appellant’s claim is forfeited, and lacks merit in any event. A. Relevant Proceedings Aspreviously noted, Dr. Djabourian conducted the autopsy of Penny’s battered corpse, andtestified for the prosecution in his role as a deputy medical examiner. During his testimony, Dr. Djabourian detailed Penny’s injuries, and gave his expert opinion on the cause of death, on how quickly death occurred, and on the approximate time of death. Dr. Djabourian also opined that certain genital injuries occurred prior to several identified head injuries. He also expressed his view that the head injuries were rapidly fatal. (LORT 1971-1975, 1977-1978.) The pain Dr. Djabourian mentioned with respect to the genital! area to some extent involved internal woodensplinters removed during the autopsy. (JORT 1971.) Dr. Djabouriantestified that his supervisor, Dr. Pena, assisted him during the autopsy, specifically with the removalof internal wood splinters from Penny’s vagina. Additionally, another person, identified by the initials C.L.H., also assisted by cataloging the splinters removed from 157 Penny’s vagina. (1ORT 1954-1956; Exh. 8.) Dr. Djabourianalsotestified that the location of one splinter was near the cervix (LORT 1949), that a splinter had been embeddedin the vaginal tissue (LORT 1951), that the location of the splinter would have been painful (1ORT 1971), and that he did not recall removing two of the splinters. (LORT 1954-1965.) Specifically, appellant complains about a smallsliver of Dr. Djabourian’s testimony with respect to Exhibit 8, which was an envelope, containing two smaller envelopes that each held wood splinters. ((ORT 1954-1955.) After cutting open the envelope, Dr. Djabourian identified a “small linear speck or splinter” from one of the smaller envelopes. He had in fact recovered it from Penny’s “vaginal area.” (1ORT 1955.) The second small envelope contained “loose debris and... a somewhatlarger piece of wood, appears to be a piece of a woodsplinter that’s recovered.” (1ORT 1955.) Dr. Djabourian did not recall specifically from where the items in the second envelope had been recovered. He testified, “I’m unable to determine where that was. I can read whatit says on the label.” (1ORT 1955.) The following colloquy transpired: [THE PROSECUTOR:] And did you recover both of these items that cameout of the package marked People’s No. 8? [DR. DJABOURIAN:] There was a doctor supervising me, Dr. Pena, andit’s possible he may have recovered oneof these others. The only one I can recall is that smaller one that was two millimeters. Q. And was that the one you referred to People’s 7 that you circled in the upper right-hand rendition? . A. Yes, that’s correct. Q. And on that envelope that you are referring to, is that your handwriting? A. The handwriting is Dr. Pena’s. 158 Q. Andthat’s the outside of the envelope? A. Yes. Q. Marked People’s 8 and the small envelope that you recovered that indicated handwriting on it, whose handwriting is on that envelope? A. That’s not my handwriting. I don’t recognize that. | recognize Dr. Pena’s. It says “isolated by C.L.H.” I’m notsure. Q. Can youflip it over? I guess the writing was on the inside. A. There are several numbers 00-129-0-6. There is possibly a date indicated 3-23-01 andinitials C.L.H. Q. And whenyou had the internal genitalia placed in formalin, did that go outside of the coroner’s office or did that stay inside the coroner’s office? A. That was inside the coroner’s office. Q. Did someoneelse other than yourself do that? A. We examinedthat specimen with Dr. Pena, so it was the two ofus. (ORT 1956-1957.) B. Dr. Djabourian’s Testimony Did Not Constitute Testimonial Hearsay And His Testimony Did Not Violate Appellant’s Federal Or State Constitutional Rights Relying on Melendez—Diaz v. Massachusetts (2009) 557 U.S. 305 (129 S.Ct. 2527, 174 L.Ed.2d 314], and Bullcoming v. New Mexico (2011) 564U.S. [131 S.Ct. 2705, 180 L.Ed.2d 610], appellant claims that portions of Dr. Djabourian’s testimony should not have been admitted because he did not actually personally perform certain portions of Penny’s autopsy. As such, he contends that the admission of certain pieces of Dr. Djabourian’s testimony violated his rights to jurytrial and due process, to 159 confront witnesses, his right to the effective assistance of counsel, and was in violation of the California Constitution as well. (AOB 190-218.) Initially, the instant claim is forfeited due to appellant’s failure to object to this testimony on any groundin thetrial court.”? (Peoplev. Williams (1976) 16 Cal.3d 663, 667, fn. 4 [“It is the general rule, of course, that questions relating to the admissibility of evidence will not be reviewed on appeal absent a specific and timely objection attrial on the ground sought to be urged on appeal”; see also People v. Maciel (2013) 57 Cal.4th 482, 351-352.) Appellant acknowledgeshis failure to object, but claims his failure should be excused becausethe “controlling law at the time wasthat a pathologist could testify about the contents of an autopsy report prepared by another, unavailable pathologist without violating the Confrontation Clause.” (AOB 193-194; People v. Clark (1992) 3 Cal.4th 41, 158, abrogation recognized by People v. Pearson, supra, 56 Cal.4th at p. 462 [Crawford “dramatically departed from prior confrontation clause law,” was unforeseeable, and counsel’s failure to object did not forfeit issue]; see also People v. Black (2007) 41 Cal.4th 799, 810-11.) However, the instant case is distinguishable from both Clark and Pearson because, unlike those cases, here, Dr. Djabourian actually performed the autopsy and waspresent for the entire autopsy. (1ORT 1925.) Appellant merely complains about Dr. Djabourian’s inability to recall precisely who removed the second of two splinters from Penny’s vagina, andhis inability to recall the nameofhis assistant with theinitials “C.L.H.” (AOB 195-197.) Despite appellant’s multiple constitutional labels, these are California Evidence Code-based chain-of-custody-type “ Respondentrespectfully requests that this Court specifically rule on respondent’s forfeiture arguments, as such forfeitures often constitute proceduralbars in later proceedingsin state or federal court. 160 objections that implicate state law only (see AOB 208), and are completely distinguishable from the constitutional objections lodged in Clark and Pearson, where an entirely different deputy medical examinertestified, rather than the one whoactually performed the autopsy. Thus, the instant claim is forfeited due to the failure to object below. In any event, as fully briefed below, this Court rejected appellant’s constitutional argumentrelatively recently in People v. Dungo (2012) 55 Cal.4th 608, 619-620.) Moreover, any error in admitting the testimony was harmless given the overwhelming evidence supporting appellant’s convictions, as well as the minimal influence Dr. Djabourian’s testimony on these few points even had on the instant matter. Appellant’s claim that Dr. Djabourian was not permitted to give expert opinions based on portions of the autopsy report that, despite his presenceat the autopsy as the primary examiner, he may not have physically completed personally, is unavailing, as this Court recently rejected an analogous claim in Dungo. There, the defendant was charged with murder, and the prosecution informedthetrial court that the pathologist who performed the autopsy would not be called as an expert witness. The prosecution, instead, was goingto call a different forensic pathologist, even thoughit did not represent that the one who performed the autopsy was unavailable. The defendant objected, but the trial court overruled the objection and permitted the other pathologistto testify. (People v. Dungo, supra, 55 Cal.4th at pp. 613-614.) Attrial, the Dungo pathologist testified that he reviewed the autopsy report and photographs. He provided his conclusion as to the cause of death, and pointed out injuries to the victim that supported his conclusion. The pathologist did not testify as to the other pathologist’s opinion regarding the cause of death. On cross-examination, the defense counsel 161 inquired about the testifying pathologist’s views of the cause of death. (People v. Dungo, supra, 55 Cal.4th at pp. 614-615.) The Dungo defendant was convicted, but prevailed on his challenge on appeal to the admission of the pathologist’s testimony on the basis that it violated the Confrontation Clause. The prosecution petitioned this Court for review, and this Court granted review. It confined its inquiry on review to whether the testifying expert’s testimony about objective facts known to him from the autopsy report and photographsentitled the defendant to confront and cross-examine the pathologist who conducted the autopsy. (People v. Dungo, supra, 55 Cal.4th at pp. 616-619.) | This Court answeredits inquiry by holding that the testifying witness’s description of objective facts of the victim’s body, which he derived from the autopsy report and photographs,did not give the defendantthe right to confront and cross-examinethe pathologist who conducted the autopsy. This Court basedits holding onit findingsthat the facts related to the jury were not so formal and solemnto be considered testimonial under the Sixth Amendment, and that criminal investigation was not the primary purpose of recording the facts. As such, this Court held that the Court of Appeal erred because allowing the pathologist’s testimony did not violate the Confrontation Clause. (People v. Dungo, supra, 55 Cal.4th at pp. 620-621.)- This Court should equally apply its reasoning in Dungoto the facts here, whichare far less troublesome. This case is not one in which the testifying expert was a mere conduit for forensic information prepared and analyzed by someoneelse. Here, Dr. Djabourian actually performed the autopsy, but simply could not remember who removed oneof twosplinters, or which technician had the initials “C.L.H.” Dr. Djabourian’s opinionsin this case, thus, were reached and conveyed noton the basis of the 162 nontestifying pathologists’ testimonial statements or findings, but through his own independent conduct of the autopsyitself. © Appellant therefore had a full opportunity to test Dr. Djabourian’s opinions On cross-examination and to explore any weaknessesin his conclusions, and any discrepancies in the evidence, on which his assessments were premised. (See People v. Dungo, supra, 55 Cal.4th at pp. 620-621.) Here, Dr. Djabourian wasentitled to rely on his own analysis, medical procedures and forensic reports as the basis for his expert testimony. Expert testimony may “be premised on material that is not admitted into evidence so long asit is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. [Citations.]” (People v. Gardeley (1996) 14 Cal.4th 605, 618.) “So long as this threshold requirementofreliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an expert’s opinion testimony. [Citations.]” (/bid.) Thus, Dr. Djabourian was allowed to give his own expert opinions aboutthe victims’ injuries and cause of death based on information or data set forth in the autopsy reports, even if he did not personally extract one of the two splinters. The facts here, therefore, are far less bothersome than those in Dungo, and this Court should reject the highly technical argument that the pathologist who performed each minute part of an autopsy must testify to that individual portion ofit to satisfy the Confrontation Clause (and that an expert witness may not provide his independent opinion based on a review of the autopsy report and photographs). Under Dungo, appellant is not entitled to relief on this claim. 163 C. Appellant Could Not Possibly Have Been Prejudiced By AnyError in Admitting One Of Two Splinters Identified In The Autopsy Report. In any event, assuming appellant has somehowidentified a constitutional violation, any alleged error in admitting Dr. Djabourian’s testimony regarding the autopsy was clearly harmless beyond a reasonable doubt. (Chapman vy. California, supra, 386 U.S. at p. 18; People v. Davis, supra, 46 Cal.4th at p. 620 [applying Chapman to Crawford claim].) The Chapmanharmless-error inquiry requires consideration of “the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.” (Delaware v. Van Arsdall (1986) 475 U.S.673, 684 [106 S.Ct. 1431, 89 L.Ed.2d 674.) As the majority stated in Melendez- Diaz: Weof course express no view as to whether the error was harmless .... In connection with that determination, however, we disagree with the dissent’s contention that only an analyst’s testimony suffices to prove thefact that the substance is cocaine. Today’s opinion, while insisting upon retention of the confrontation requirement, in no wayalters the type of evidence (including circumstantial evidence) sufficient to sustain a conviction. (Melendez-Diaz v. Massachusetts, supra, 557 U.S. at p. 329, fn. 14, citation, internal quotation marks, and brackets omitted.) To the extent Dr. Djabourian’s testimony regarding the removal of one of the two splinters ran afoul of the Sixth Amendment, it was not prejudicial. Dr. Djabourian’s conclusions regarding the larger splinter were precisely the sameas his conclusions regarding the smaller splinter,1.e., each one caused pain. (1ORT 1954-1957, 1971-1972.) Additionally, the 164 jury obviously did not need Dr. Djabourian to tell them that jamming a wooden freeway stake up Penny’s vagina would be extraordinarily painful. Furthermore, appellant did not challenge the fact that either Pearson or Armstrong had violated Penny with the stake. Rather, his counsel attempted to explain that appellant’s removalof the stake did not constitute “personal use” of a deadly weapon. (1URT 2421-2422.) As previously noted, defense counsel’s argumentto that effect was successful. (3CT 597- 607; 12RT 2527-2534.) Appellant’s statement to Detective Prell plainly acknowledged that Penny had been violated with a stake. (LORT 2150.) Although appellant makes muchofpurported discrepancies regarding the removal of the second, larger splinter, whether there was one splinter or two obviously had no bearing on whether the jury could convict appellant of the instant crimes as an aider and abettor, or on any other theory. His convictions, therefore, were not established by Dr. Djabourian’s testimony about the second splinter, or even by the autopsy itself for that matter. There was without question a plethora of alternative evidence substantiating the instant crimes, i.e., the semen on appellant’s jacket, appellant’s confession, the DNA evidence, the photographs taken by the police, the drag marks on the eround, the broken fence, the stolen food stamps, etc. (LORT 1996, 1999, 2086, 2138-2139, 2142, 2150; LIRT 2166- 2167, 2188, 2211-2212, 2213-2214.) Forall of the foregoing reasons, any error in admitting into evidence Dr. Djabourian’s testimony regarding the removalofthe second splinter was harmless beyond a reasonable doubt.” °*0 Appellant argues that there was no evidence that Penny was screaming during the agonizing minutes of her murder. (AOB 217.) Suffice it to say that it is a reasonable inference from the evidence that Penny was screaming while she was being impaled through her vagina with a wooden freeway stake, or while she was being brutally raped and savaged, or while she wasbeing viciously beaten, dragged across the (continued...) 165 VI. THE TRUE FINDINGS AS TO THE PENAL CODE SECTION190.2, SUBDIVISION(a)(17),. ALLEGATIONS AND THE JUDGMENT OF DEATH SHOULD BE AFFIRMED BECAUSE APPELLANT COMMITTED EACH OF THE SPECIAL CIRCUMSTANCE FELONIES FOR AN INDEPENDENT FELONIOUS PURPOSE Appellant contendsthat there “was no substantial evidence that any of the felonies [were] committed with an independent felonious purpose.” (AOB 219.) He further argues that under “the People v. Green (1980) 27 Cal.3d 1, line of cases, the controlling law at the time of the crimes, the true findings to the felony special circumstances can be upheld only if [he] had an independent felonious purpose for committing each special circumstance felony, which wasnot merely incidental to the murder.”*? (AOB 219-220; see also AOB219-244.) Appellant’s claim simply ignores the record, as well as the law. A. Relevant Proceedings Here, the jury found the special circumstances alleged pursuantto section 190.2, subdivision (a)(17) and (18), to be true,i.e., that the murder was committed during the commission of a robbery, a kidnapping,a kidnapping for rape, a rape, and a rape by foreign object, and that the murder was intentional and involved the infliction of torture. (3CT 597-. 598; 12RT 2528.) Asa result, appellant was eligible for the death penalty or imprisonmentfor life without the possibility of parole. (§ 190.2, subd. (a).) ‘(...continued) ground and over a fence, or while she was being stomped to death by Pearson. (People v. Tully (2012) 54 Cal.4th 952, 1022.) >! Green was disapproved on another ground by People v. Hall (1986) 41 Cal.3d 826, 834,fn. 3. 166 Indeed, in the instant case,the trial court instructed the jury pursuant to CALJIC No. 8.81.17 as follows: To find that the [sic] any of the special circumstances, referred to in these instructions as murder in the commission of robbery, kidnap, kidnapping for rape, rape, or rape by a foreign object - a woodenstake,is true, it must be proved: 1. The murder was committed while [the] defendant was [engagedin] [or] [was an.accomplice] in the [commission] of one or more of the following crimes: robbery, kidnap, kidnapping for rape, rape, or rape by a foreign object (a wooden stake). (2CT 555; see People v. D'Arcy (2010) 48 Cal.4th 257, 297 [“a trial court has no duty to instruct on the second paragraph of CALJIC No. 8.81.17 unless the evidence supports an inference that the defendant might have intended to murderthe victim without having had an independentintent to commit the specified felony”’]; see also People v. Monterroso (2004) 34 Cal.4th 743, 767; People v. Valdez (2004) 32 Cal.4th 73, 113-114 [holding challenge to instruction was forfeited by defendant’s failure to object or request the omitted language].) B. General Legal Principles ““When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whetherit contains substantial evidence - that is, evidence that is reasonable, credible, and of solid value - from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ (People v. Lindberg (2008) 45 Cal.4th 1, 27 [].) ‘[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ (Jackson v. Virginia (1979) 443 U.S. 307, 318-319 []; see People v. Staten (2000) 24 Cal.4th 167 434, 460 [] [‘An identical standard applies under the California Constitution.’]; People v. Cain (1995) 10 Cal.4th 1, 39 [] [the same standard applies to the sufficiency of the evidence to sustain a special circumstance finding].)” (People v. Lewis (2009) 46 Cal.4th 1255, 1289- 1290 [], fn. omitted [].) “Althoughit is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054 [].) “(If the felony is merely incidental to achieving the murder- the murder being the defendant's primary purpose- then the special circumstanceis not present, but if the defendant has an ‘independent felonious purpose’ (such as burglary or robbery) and commits the murderto advance that independent purpose,the special circumstance is present.” (People v. Navarette (2003) 30 Cal.4th 458, 505; see People v. Rountree (2013) 56 Cal.4th 823, 854; People v. Green, supra, 27 Cal.3d at pp. 59-62; see also People v. DePriest (2007) 42 Cal.4th 1, 47 [Where a personisleft dead or dying in ‘relative proximity’ to property that was taken, and such property is later found in the defendant's possession, the jury is entitled to ‘infer that the victim was robbed and that the defendant committed the crime”]; People v. Maury (2003) 30 Cal.4th 342, 402 [because property that wasin the possession of the victim was missing, the jury could reasonably infer that the defendantstole the property].) The felony-based special circumstances do not require that the defendantintendto kill. It is sufficient if the defendantis the actual killer or either intendsto kill or “with reckless indifference to humanlife and as a majorparticipant, aids, abets, counsels, commands,induces, solicits, requests, or assists in the commission”ofthe felony. (§ 190.2, subd. (d); 168 see People v. Estrada (1995) 11 Cal.4th 568, 575.) The torture-murder special circumstances requires that a murderbe “intentional and involve[] the infliction of torture.” (§ 190.2, subd. (a)(18); People v. Whisenhunt (2008) 44 Cal.4th 174, 202.) There must be an intentto kill, an intent to torture, and infliction of an extremely painful act on a living victim. (People v. Bemore (2000) 22 Cal.4th 809, 839.) “[T]he requisite torturous intent is an intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any other sadistic purpose. A premeditated intent to inflict prolonged pain is not required.” (People v. Elliot (2005) 37Cal.4th 453, 479, footnote omitted.) C. Appellant Committed Each Of The Special Circumstance Felonies For An Independent Felonious Purpose In the case at bar, overwhelming evidence demonstrated that appellant committed each of the special circumstance felonies for an independent felonious purpose. Quite simply, there is absolutely no evidence that appellant intended to kill Penny at the momentshe allegedly yelled, “Fuck you, niggers,” at appellant and his companionsacrossthe street. Rather, as noted by the prosecutor, the more reasonable interpretation of the evidence wasthat appellant and his companions crossedthestreet initially intending to rob Penny, and that the crimes escalated with Penny’s resistance. (11RT 2356; see People v. Horning (2004) 34 Cal.4th 871, 907 [the commission of the felony was not merely incidental to an intended murder’’].) In his opening brief, appellant concedesthat: The evidence wasthat [he] engaged with [Penny] after she yelled a racial slur at [appellant] and his companions. The altercation escalated from shouting to battery, and ultimately to murder. The prosecution was unable to present evidence ofthe order of events, except that the kidnapping followedtheinitial engagement, and the torture and murderlikely were last in the timeline. 169 (AOB 228-229.) Appellant essentially concedeshis case, as he impliedly acknowledges that appellant and his companions did not form the intent to kill until the very end of the encounter, when they actually killed Penny, most likely in an attempt to conceal their prior crimes. Therefore, the special circumstance felonies were committed for an independent felonious purpose,rather than just “incidental” to the murder. Appellant argues that “the fact the food stamp cover was found closer to the body than where [Penny] first had contact with [appellant] supports the reasonable inference that the theft may have occurred later.”” (AOB 229.) Of course, it also supports the inference that appellant may have taken the food stamps during the initial encounter, and then tore off the cover later while he was trying to gatherall the incriminating evidence for disposal. (See People v. DePriest, supra, 42 Cal.4th at pp. 46-47 [court rejected defendant's complaint that prosecution did not eliminate the possibility the defendant formed the intent to steal after he used force, finding substantial evidence he intended to steal when he accosted his victim]; People v. Navarette, supra, 30 Cal.4th at p. 499 [“one can certainly rob a living person by killing that person and then taking his or her property”].) Robbery is “the felonious taking of personal property in the possession of another . . . and against [the person's] will, accomplished by means of force or fear.” (§ 211.) “The only intent required to find the felony-murder-robbery special circumstance allegation true is the intent to commit the robbery before or during the killing.” (People v. Huggins, supra, 38 Cal.4th at p. 215.) Ifa defendant does not harborthe intent to take another's property at the time the force or fear is applied, the taking is a theft, not arobbery. (People v. Burney (2009) 47 Cal.4th 203, 253.) 170 “(T]he special circumstance of murder during the commission of a robbery requires that the murder be committed ‘in order to advance [the] independent felonious purpose’ of robbery, but the special circumstanceis | not established when the felony is merely incidental to the murder.” (bid; see also People v. Clark, supra, 52 Cal.4th at p. 947 [“Contrary to defendant's assertion, that he may have succeededin taking [the victim’s| money only after her death does not underminethe special circumstance finding”].) Here, appellant obviously had an independent felonious purpose for the robbery, as he spent the stolen food stamps at the Lorena Market. (ORT 2044, 2046.) With respect to the kidnapping and kidnapping for purposes of rape special circumstance allegations, the California Supreme Court has found sufficient evidence to support a kidnapping special circumstance so long as there was a.concurrent purpose to commit both the murder and one of the listed felonies. (People v. Bolden (2002) 29 Cal.4th 515, 554, 558; People v. Raley (1992) 2 Cal.4th 870, 903.) That the evidence may also support another scenario does not renderthe evidence insufficientto support the verdict. (See People v. Foster (2010) 50 Cal.4th 1301, 1349; see also People v. Brents (2012) 53 Cal.4th 599, 610 [““A reasonable jury therefore could infer that defendant was not sure what he wanted to do with [the victim] when he drove away with her in the trunk. He wanted to think about it, and going for a drive was his way of thinking aboutit.’].) Here, it was entirely reasonable for the jury to infer that appellant and his cronies were not sure what they wanted to do with Penny when they passed her over the fence and dragged her down the embankment. (See, e.g., People v. Raley, supra, 2 Cal.4th at pp. 902-903 [sufficient evidence of independentfeloniouspurpose where defendant mightnot have decided victim's fate at time of kidnapping but might have formedintentto kill after asportation].) After committing the other terrible crimes, a reasonable 171 inference from the evidenceis that the defendants then simply decided to kill her. ‘Likewise, with regard to the rape and rape by foreign object special circumstance allegations, appellant and his cohorts obviously removed the victim’s clothes prior to the rape. (People v. Clark, supra, 52 Cal.4th at p. 947 [“the evidence supported the inference that, before the fatal assault, defendantforcibly removed [the victim’s] coat and the contents of its inside pocket for the purpose of taking her money. The jury thus necessarily would have inferred that defendant's intent to rob preceded the killing”’]; see also People v. Musselwhite (1998) 17 Cal.4th 1216, 1263.) Here, as in Clark, appellant’s intent to commit the crimes, including the rape, obviously preceded the killing. There was ample evidence from Dr. Djabourian that Penny wasstill alive at the time that she was raped and ~ tortured (see 1ORT 1977-1978), and no evidencethat appellant intended to “rape” Penny to death, thus somehow making the rape “incidental” the murder. The jury could have reasonably inferred that the defendants committed the rape and rape by foreign object for sexual gratification, whichclearly constituted an independent felonious purpose. Likewise, with regard to the torture allegation, appellant told Detective Prell that he continued to be angry with Penny for striking him during the initial part of their confrontation. (ORT 2147; LIRT 2169, 2188.) The jury could have easily inferred from this that appellant tortured Penny because he wasangryat her for striking him, which constituted an independent felonious purpose, or because appellant derived sexual gratification from it, as well as the rape. Nothing more wasrequired. (See 2RT 27-31.) Nor does any evidence that defendant harbored concurrentintents to commit multiple crimes, such as rape and murder, render that crime,i.e., the rape, merely incidental to the murder. (People v. Davis, supra, 46 172 Cal.4th at p. 609 [“even if a defendant harboredthe intentto kill at the outset, a concurrent intent to commit an eligible felony will support the [felony murder] special-circumstanceallegation”]; accord, People v. Abilez (2007) 41 Cal.4th 472, 511 [evidence of the defendant's concurrent intent to take the victim's money and humiliate her established the requisite independent felonious purpose for the robbery-murder, burglary-murder and sodomy-murderspecial-circumstancefindings].) In People v. Brents, supra, 53 Cal.4th at pp. 610-611, this Court noted: Moreover, even if defendant intended from the beginning to kill [the victim] and even if that was his primary purpose,that pointis irrelevant to our analysis. The jury only needed to find that defendant also had another concurrent objective when he kidnapped[the victim]. (See People v. Bolden, supra, 29 Cal.4th at p. 554, 558 []; People v. Raley, supra, 2 Cal.4th at p. 903 [].) If defendant intended to kill [victim], but he wanted first to drive her aroundin a lockedtrunk, thoroughlyterrifying her before she actually died, then the independent purpose .- requirement ofPeople v. Green, supra, 27 Cal.3d at pages 59 to 62 [], is satisfied. (See People v. Raley, supra, 2 Cal.4th at p. 903 [“Concurrentintent to kill and to commit an independent felony will support a felony-murder special circumstance.. . .”’].) This Court also noted in Brents: It is true that the jury also could have inferred defendant's version of the facts, but defendant is wrongto assert that his interpretation of the evidence is the only reasonable interpretation. Because, as discussed above,the record contains sufficient evidence to support the jury's finding of an independent purpose to kidnap [the victim], we need notset aside the kidnapping special circumstance finding on that ground. (See People v. Raley, supra, 2 Cal.4th at p. 903 [] [because the defendantput his victims in the trunk of his car and drove them to his home, he might not have formed the intent to kill until after the asportation]; see also People v. Barnett (1998) 17 Cal.4th 1044, 1158 [] [although some evidence showedthat the defendant threatened to kill the victim on the day of the 173 murder,the jury could infer that the defendant had notfinally decided the victim's fate at the time of the asportation].) (People v. Brents, supra, 53 Cal.4th at p. 611.) Finally, this Court itself has noted that its own view of whatthe evidence showsis irrelevant. The relevant inquiry is whether, for example, it would beirrational for a jury to conclude that the defendants intended to kidnap the victim for some reason (suchasto instill fear) that was in addition to and independentofhis intent to murder her. (People v. Raley, supra, 2 Cal.4th at p. 902.) In People v. Castaneda (2011) 51 Cal.4th 1292, this Court specifically noted: Asexplained previously, the substantial evidence supporting defendant's convictions for sodomy, robbery and burglary also supports the conclusion that those felonies were not merely incidental to an intended murder. “This behavior wasnot incidental or ancillary to the murder, but amply demonstrates an independent felonious purpose in support of the ... Special circumstances.” (People v. Abilez, supra, 41 Cal.4th at p. 511 [].) Contrary to defendant's suggestion, Blakely v. Washington (2004) 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (Blakely), Ring v. Arizona (2002) 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (Ring), and Apprendi v. New Jersey (2000) 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (Apprendi), do not require that the jury expressly find each element of a special circumstance. (id. at p. 1327.) Likewise, here, appellant’s heavy reliance on Blakely, Ring and Apprendi is misplaced and adds nothing to his argument. (See AOB 220- 221, 240-243; see also People v. Taylor, supra, 48 Cal.4th at pp. 628-629.) Here, quite simply, as in People v. Davis, supra, 46 Cal.4th 539, appellant and his cohorts killed the victim “to conceal the felonies [they] had already committed.” Ud. at p. 610.) The instant claim fails. 174 D. Prejudice In any event, appellant could not have been prejudiced by any error as to any oneof the special circumstance findings, or even by any error as to a combination of several of them. Thetrial court specifically instructed the jury pursuant to CALJIC No. 8.80.1 as follows: If you find that a defendant wasnotthe actual killer ofa human beingor if you are unable to decide whether the defendant was the actual killer or an aider and abettor or co- conspirator, you cannotfind the special circumstanceto be true unless you are satisfied beyond a reasonable doubt that the defendant with the intent to kill aided, abetted, counseled, commanded,induced,solicited, requested, or assisted any actor in the commission of the murderin the first degree, or with reckless indifference to human life and as a majorparticipant, aided, abetted, counseled, commanded, induced,solicited, requested, or assisted in the commission of one or more of the following crimes: robbery, kidnapping, kidnapping for rape, rape, rape by a foreign object, (a wooden stake), or torture pursuant to Penal Codesection 190.2 subdivision (a)(17) which resulted in the death of a humanbeing, namely Penny Keprta, also known as PennySigler. A defendant acts with reckless indifference to humanlife whenthat defendant knowsor is awarethat his acts involve a grave risk of death to an innocent humanbeing. You must decide separately each special circumstance alleged in this case. Ifyou cannot agreeasto all of the special circumstances, but can agree to one or more of them, you must make yourfinding as to one or more upon which you do agree. In orderto find a special circumstance alleged hadin this case to be true or untrue, you must agree unanimously. (2CT 553-554; 11RT 2314-2315.) Thus, the jury was specifically instructed that it must decide each special circumstance allegation separately, and that it must agree unanimously. Moreover, in counts 2 through 8, the jury specifically found appellant guilty of each of the underlying crimesalleges as special 175 circumstances. (3CT 597-607; 12RT 2527-2534.) Thus, this is not a case where, but for the special circumstanceallegations, the information would not have been presented to the jury. Indeed, appellant acknowledgesthat in Brown v. Sanders (2006) 546 U.S. 12, 220-221 [126 S.Ct. 884, 163 L.Ed.2d 723], the Supreme Court affirmed the judgment ofdeath, even thoughit set aside two of the four special circumstance allegations. The High Court noted: | [T]he jury’s consideration of the invalid eligibility factors in the weighing process did not produce constitutional error becauseall of the facts and circumstances admissible to establish the “heinous, atrocious, or cruel” and burglary-murdereligibility | factors were also properly adduced as aggravating facts bearing upon the “circumstances of the crime” sentencing factor. They were properly considered whetheror not they bore upon the invalidated eligibility factors. (Brown v. Sanders, supra, 546 U.S. at p. 224.) Precisely the sameis true in the instant case; hence appellant could not possibly have been prejudiced, unless this court reversesall six of the special circumstance allegations. (See 3CT 623 [factor (a) — the circumstances ofthe crime]; see also AOB 237-238 [conceding that in Brown v. Sanders, “all of the facts and circumstances admissible to establish the ‘heinous, atrocious, or cruel’ and burglary-murdereligibility factors were also properly adduced as aggravating facts bearing upon the ‘circumstances of the crime’ sentencing factor”].) Appellant therefore could not have been prejudiced by anyerror, and the instant claim is therefore unavailing. Vil. OVERWHELMING EVIDENCE SUPPORTED APPELLANT’S ROBBERY CONVICTION AND THE ROBBERY SPECIAL CIRCUMSTANCE FINDING Appellant arguesthat “the evidence was insufficient as a matter of law to prove that he took the victim’s property in a robbery, or took the 176 property while the victim wasalive.” (AOB 245; see also AOB245-255.) Appellant’s claim misstates the law, and simply ignores the strong evidence of guilt presented duringthetrial. Respondenthas already summarized the law regarding insufficiency of the evidence and robberyin the preceding argument, i.e., Argument VI, ante. In the interest of brevity, respondent will not restate that law here. Moreover, in Argument VI, ante, respondentalso addressed the sufficiency of the facts substantiating the robbery special circumstanceallegation. However, for ease of reference, respondent will briefly review the substantial evidence of guilt supporting appellant’s robbery conviction and the true finding on the robbery special circumstance allegation. Duringtrial, the parties stipulated that Mr. Joseph O'Brien, had he been called as a witness, would havetestified that on December 29th, 1998, between 10 p.m. and 11 p.m., he gave Penny a ten dollar food stamp coupon book, containing a single five dollar coupon and a single one dollar coupon, to buy him a soda and candybarat the store. Mr. O’Brien had obtained the food stamps from the Nix check cashing store on Atlantic Boulevard in Long Beach. (1ORT 2065.) Prior to the homicide, a shipment of 2,000 Los Angeles County food stamp couponshad beensentto the Nix check cashing store at 6583 Atlantic Boulevard, number 106, in Long Beach, California. The shipmentincluded food stamp couponsbearing the serial number F02520550V. (10RT 2034.) On January 6, 1999, Detective Edwards returned to the crime scene after receiving information that Penny had food stamps on herperson at the time of her death. (ORT 2050-2052.) Atthe foot of a ladder near the crime scene, he found the cover of a food stamp coupon book. (10RT 2054-2056.) The inside cover bore the serial number F02520550V. (1ORT 2057.) 177 Detective Lasiter recovered two food stamp coupons (Exhibits 18A [a five-dollar coupon] and 1 8B [a one-dollar coupon] bearingtheserial number F02520550V) trom Mr. Efrain Garcia, the owner of the Lorena market. (11RT 2213-2214.) Garcia recognized appellant from the - neighborhoodas a regular customer, and rememberedseeing him in the market between Christmas and New Year’s Eve of 1998. (1ORT 2043- 2044, 2047.) Appellant came into the market and bought food using food stamps. (LORT 2044, 2046.) Thus, there was ample evidence not only that the food stamps were taken from Penny’s person, but also that appellant personally spent them for personal gain at the Lorena Market. (See People v. Navarette, supra, 30 Cal.4th at p. 499 [“one can certainly rob a living person by killing that person and then taking his or her property”’].) Appellant also alleges that there was no substantial evidencethat the property was taken while Penny wasstill conscious or alive. (AOB 253- 255.) He asserts that, even if he rendered the victim unconscious, a defendant must have formedthe intent to take the victim’s property prior to rendering her unconscious. (AOB 253.) However, appellant simply ignores well-settled case law that is far more aptto the facts of the instant case. (See People v. DePriest , supra, 42 Cal.4th at p. 47 [Where a person is left dead or dyingin ‘relative proximity’ to property that was taken, and such property is later found in the defendant's possession, the jury is entitled to infer that the victim was robbedandthat the defendant committed the crime”]; People v. Maury, supra, 30 Cal.4th at p. 402 [because property that wasin the possession of the victim was missing, the jury could reasonably infer that the defendantstole the property].) Furthermore, the only case law cited by appellant in support ofhis novel proposition regarding consciousness involved a situation where there was no evidencethat the defendant used any force or fear whatsoever on the victim. (See People v. Russell (1953) 118 Cal.App.2d 136, 138-139 178 [“the additional necessary element to support a conviction of robbery, to wit, that the moneyor the wallet was taken by appellant through the use of force upon [the victim] rests upon nothing but speculation”’].) Appellant fails to recognize that Penny’s clothes, and her food stamps, were unquestionably removed while Penny was consciousandviolently resisting. Appellant told Detective Prell that Penny asked him for help afier Pearson rapedher, and after he (appellant) punched her twice in the face. (ORT 2146-2147; 11RT 2188.) Penny continued to resist to the very end, calling the defendants, “You mother fuckers.” (1ORT 2147; 11RT 2188.) Thus, the food stamps were taken while Penny was conscious and resisting. There is virtually no evidence supporting any other theory. Moreover, as noted by the prosecutor, a reasonable inference from the . evidence is that the food stamps were taken during the initial encounter, prior to Penny being kidnapped and dragged over the fence and down the embankment. (11RT 2356.) Indeed, it is an entirely reasonable inference from the evidence that Penny violently resisted from the very beginning, causing the defendants to physically overwhelm her and drag her to a safer place to perpetrate their increasingly nefarious deeds. Appellant’s numerous scenarios otherwise are nothing but rank speculation, and largely unsupported by the evidence adducedattrial. (See AOB 251.) Finally, appellant, as previously noted, obviously had an independent felonious purposefor the robbery, as the evidence demonstrated that he spent the stolen food stamps at the Lorena Market. (LORT 2044, 2046; see People v. Clark, supra, 52 Cal.4th at p. 947 [“Contrary to defendant's assertion, that he may have succeededin taking [the victim’s] money only after her death does not underminethe special circumstance finding”’].) Appellant’s claim is specious. 179 VIII. THE TRIAL COURT PROPERLY INSTRUCTED THE JURY ON FELONY MURDER; IN ANY EVENT, ANY ERROR WAS HARMLESS Appellant argues that “instructional error occurred based on modifications to pattern instruction CALJIC No. 8.21, which explained felony murder.” (AOB 257; see also AOB 256-270.) He further opines that “[i]ts use was error when multiple section 189 felonies were alleged becauseit permitted jurors to find [appellant] guilty of murder, ifjurors foundthe killing occurred during onelisted felony, and [appellant] had the specific intent to commit another, unrelated listed felony. (AOB 258.) Appellant claims that “fujnder California case law, when it cannot be determined from the record whether the jury based its murder verdict on a legally correct theory or a legally flawed theory, the appellate court cannot say the error is harmless and the error must be deemedprejudicial.” (AOB 268.) Appellant’s claims simply ignore the law and should be soundly rejected.” A. Relevant Proceedings Here, the prosecution proceeded on three different possible theories of first degree murder: 1) deliberate and premeditated; 2) felony murder; and 3) torture murder. (See, e.g., 11 RT 2355-2367 [prosecutor’s closing argument].) The prosecutor also argued, without objection,that: All persons who,either directly and actively commit the act constituting that crime talking about these up here or who with the knowledge of the unlawful purpose,of the perpetrator of the crime, and with the intent or purpose of committing encouraging or facilitating the commission ofthe events, aids, °° As will be noted in Argument XII,post, the trial court improperly instructed the jury on felony murder by including torture amongthelist of predicate felonies, but the error was harmless. In any event, that is a different argument from the one presented in the instant claim. 180 promotes, encouragesor instigates by act or adviceits commission are guilty of the murderinfirst degree. (LIRT 2365.) Thetrial court properly instructed the jury on these theories. (2CT 543-544 (CALJIC No. 3.02 (aiding/abetting)], 548-549 [CALJIC No. 8.20 (deliberate / premeditated)], 550 [CALJIC No.8.21 (felony murder)]; 551 [CALJIC No. 8.24 (torture murder)].) The jurors were also properly | instructed that they need not agree on a theory of guilt. (2CT 547.) The verdicts confirmedthat the jury found that appellant harbored the requisite intent for each of the underlying crimes outlined in counts 2 through8, i.e., robbery, kidnapping to commit rape, forcible rape while acting in concert, forcible rape, sexual penetration by foreign object while acting in concert, sexual penetration by foreign object, and torture. (3CT 597-607; 12RT 2527-2534.) B. General Legal Principles Errors in jury instructions are questions of law which are reviewed de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1206; People v. Guiuan (1998) 18 Cal.4th 588, 569-570.) “The independent or de novo standard of reviewis applicable in assessing whether[jury] instructions correctly state the law, and also whetherinstructions effectively direct a finding adverse to a defendant by removing an issue from the jury’s consideration.” (People v. Posey (2004) 32 Cal.4th 193, 218 [citations omitted].) Thetrial court instructed the jury pursuant to CALJIC No. 8.21 as follows: The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs [during the commission of any of the following crimes: robbery, kidnap for rape, rape in concert, rape, sexual penetration by a foreign object (a woodenstake) in concert, sexual penetration by a foreign object (a woodenstake), or torture, is murderofthe first degree 181 whenthe perpetrator had the specific intent to committhat crime. The specific intent to commit any of the following crimes: _robbery, kidnap for rape, rape in concert, rape, sexual penetration by a foreign object (a woodenstake) inconcert, sexual penetration by a foreign object (a woodenstake), or torture and the commission of any such crime must be proved beyond a reasonable doubt. (2CT 550; 1IRT2310-2311.) Appellant did not lodge any objection to the given version of CALJIC No. 8.21. C. The Trial Court Properly Instructed The Jury Pursuant to CALJIC No. 8.21 Initially, appellant’s claim amounts to an argumentthatthe trial court should have, sua sponte, clarified for the jury instructions that were already correct in law. His failure to request such clarification, however, forfeits his claim on appeal. (People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1439.) “A trial court has no sua sponte duty to revise or improve upon an accurate statement of law without a request from counsel [citation], and failure to request clarification of an otherwise correct instruction forfeits the claim of error for purposes ofappeal. ...” (People v. Lee (2011) 51 Cal.4th 620, 638; People v. Virgil (2011) 51 Cal.4th 1210, 1260.) In any event, assuminghis claim is not forfeited, in People v. Booker, this Court noted: To the extent defendant contendsthetrial court failed to instruct the jury that an antemortem-formed intent to commit rape or a lewd act by force is required for a first degree felony- murder conviction, we repeatedly have held that CALJIC No. 8.21,{] which the trial court read to the jury here, adequately conveys that the required intent must be formed before the murder occurred. (E.g., People v. Jones (2003) 29 Cal.4th 1229, 1258-1259 [].) (People v. Booker, supra, 51 Cal.4th at pp. 180-181, footnote omitted.) 182 Appellant argues that “[nJowhere did the instruction tell jurors that in order to find [him] guilty under a theory of felony murderthe jury had to find: (1) the killing occurred during the commission of one of the specified felonies; (2) and [appellant] had the specific intent to commit that specified felony which resulted in the victim’s death. (AOB 259.) Inexplicably, appellant simply ignores the plain language of CALJIC No. 8.21, which tells the jury precisely that any unlawful killing which occurs during the commission of one of the specified crimes “is murderof thefirst degree when the perpetrator had the specific intent focommit that crime.” (2CT 550, italics added.) Additionally, appellant simply ignores the special circumstance findings by claiming that “the jury did not find the death occurred during, or wasthe result of, the felony [he] specifically intended to commit... .” (AOB 263.) If that were true, the jury would not have returned six true findings on six special circumstance allegations. In People v. Taylor, this Court specifically explained: To convict a defendantoffirst degree murder, the jury must unanimously agree that the defendantis guilty ofthat offense beyond a reasonable doubt. But, as we have repeatedly explained, the jury need not unanimously agree on the theory underlying the first degree murder. (People v. Hawthorne [(2009) 46 Cal.4th 67], 89 []; People v. Carpenter (1997) 15 Cal.4th 312, 394-395 [].) We have also repeatedly rejected the argument, which defendant puts forth here, that a unanimity instruction is required under Apprendi v. New Jersey (2000) 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 [], which held that the constitutional guarantees of due process andjurytrial require that “any fact that increases the penalty for a crime beyondthe prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (See People v. Morgan (2007) 42 Cal.4th 593, 617 [] [nothing in Apprendi requires unanimousverdict on theory offirst degree murder]; People v. Nakahara [(2003) 30 Cal.4th 705], 712-713 [] [same].) 183 (People v. Taylor, supra, 48 Cal.4th at p. 626.) Appellant concedesthat: People v. Cavitt (2004) 33 Cal.4th 187, explained that a non-killer’s liability for murder dependson the relationship betweenthe target felony andtheactresulting in death. For felony murderliability to attach to the non-killer “there must be a logical nexus, beyond mere coincidence of time and place, between the felony the parties were committing or attempting to commit andthe act resulting in death.” (/d. at p. 201.) (AOB 263.) Appellant’s argument simply ignores the fact that he was convicted of each and every one of the underlying crimes, as well as all of the special circumstanceallegations.” Indeed, appellant’s argument seemingly promotes the absurd view that, since the defendants savaged Penny so badly, and since the coroner could not determine precisely when she died or whatactually killed her, he could not be convicted of felony murder because the order of the crimes was not clear. (See AOB 259-263; see also 11RT 2364, 2368.) As noted above, such is hardly the state of the law. D. Appellant Could Not Have Been Prejudiced By Any Error Finally, even assumingthat the trial court somehowerred in instructing the jury, any error was harmless, as “the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.” (People v. Sedeno (1974) 10 Cal.3d 703, 721, overruled in part on other grounds in People v. °> For this reason, appellant’s complicated chart proffered on page 261 of his opening brief is completely irrelevant. In short, the jury found each of the seven underlying crimestrue, and each ofthe six special circumstance allegations to be true. (CT 597-607; 12RT 2527-2534.) Thus, using appellant’s logic, there were a total of seven times six, or 42 “possibilities,” and 42 of the 42 were “proper.” 184 Breverman (1998) 19 Cal.4th 142, 149, and disapproved on other grounds. in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12; see People v. Coffinan (2004) 34 Cal.4th 1, 96.) Appellant brazenly argues that “the evidence that [he] harbored specific intent to commit any crimeat all was weak circumstantial evidence .... (AOB 265.) Ifthis were so, it is highly doubtful that appellant’s defense counsel would have conceded most of his case during his opening argument. (1ORT 1916.) Appellant also ignores the record by claiming that “no other evidence showedthe order in which the offenses were committed... .” (AOB 266.) To the contrary, the physical evidence at the scene demonstrated that the kidnapping offense was committed prior to the sexual offenses, and prior to the torture offense. (11RT 2228, 2235-2236, 2247, 2249.) Quite simply, as confirmed by the jury, every theory of guilt wasfactually supported in the instant case. In Taylor, this Court also noted: In any event, even hadthetrial court erred in not giving a unanimity instruction, the error was harmless under any standard. The jury unanimously found defendantguilty of the substantive crimes of rape, forcible oral copulation, and burglary, and it unanimously found true the associated felony- murderspecial-circumstance allegations. Given these verdicts and findings, the jury necessarily reached unanimous agreement that defendant committed a first degree felony murder based upon rape, forcible oral copulation, and burglary. (Cf. People v. Hawthorne, supra, 46 Cal.4th at pp. 89-90 []; People v. Carpenter, supra, 15 Cal.4th at p. 395 [].) (People v. Taylor, supra, 48 Cal.4th at p. 626.) This Court finally noted in Taylor: “The evidence merely present[ed] the possibility the jury may divide, or be uncertain, as to the exact way the defendantis guilty of a single discrete crime.” ([People v. Russo (2001) 25 Cal.4th 1124], 1135 [].) Under these circumstances,juror unanimity was unnecessary. (/bid.) 185 (People v. Taylor, supra, 48 Cal.4th at p. 628.)°* Appellant’s claim fails. IX. THE TRIAL COURT INSTRUCTED THE JURY WITH THE CORRECT DEFINITION OF AIDING AND ABETTING LIABILITY; IN ANY EVENT, ANY ERROR WAS HARMLESS Appellant contendsthat “[t]he aiding and abetting instruction impermissibly mixed and matched amongthe seven offenses in counts 1 through 7, and permitted the jury to find Hardy guilty of each of the seven counts without requiring any natural and probable consequence connection between his target offense and the nontarget offense that actually caused the offenses of conviction.” (AOB 271; see alsoAOB 271-283.) Appellant’s claim once again ignores well-settled case law to the contrary. | A. General Legal Principles As in Argument VIII, ante, appellant contendsthatthe alleged error arose becausethe pattern instruction appears to contemplate only a single target, and single non-target offense. Respondent therefore incorporates by reference the authorities cited in Argument VIII, ante, that demonstrate otherwise. Respondentalso incorporates from Argument VIII the standard of review for instructionalerror. With regard to criminaltrials, “not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation. The question is ‘ “whether the ailing instruction ... so infected the entire trial that the resulting conviction violates due process.” ’ [Citation.] ‘ “[A] single instruction to a jury may notbe judgedin artificial isolation, but must be viewedin the context of the overall charge.” ’ [Citation.] If the charge as a whole is ambiguous,the question is whetherthere is a ‘ “reasonable likelihood that the jury has ** Appellant even concedesthat“all charged offenses occurred during a single incident, and overa relatively short period of time.” (AOB 260.) 186 applied the challenged instruction in a way”that violates the Constitution.’ ” [Citation.] (People v. Huggins, supra, 38 Cal.4th at p. 192.) In People v. Prettyman (1996) 14 Cal.4th 248, this Court summarized the natural and probable consequences doctrine as follows: Under California law, a person whoaids and abets a confederate in the commission of a criminal act is liable not only for that crime (the target crime), but also for any other offense (nontarget crime) committed by the confederate as a “natural and probable consequence”of the crime originally aided and abetted. To convict a defendant of a nontarget crime as an accomplice under the ‘natural and probable consequences’ doctrine, the jury must find that, with knowledge of the perpetrator's unlawful purpose, and with the intent of committing, encouraging, or facilitating the commission of the target crime, the defendant aided, promoted, encouraged,or instigated the commissionofthe target crime. The jury must also find that the defendant's confederate committed an offense other than the target crime, and that the nontarget offense perpetrated by the confederate was a “natural and probable consequence”ofthe target crime that the defendantassisted or encouraged. (Ud. at p. 254.) Thetrial court instructed the jury pursuant to CALJIC No. 3.02 as follows: One whoaids and abets another in the commission of a crime [or crimes] is not only guilty of that crime or those crimes, but is also guilty of any other crime committed by a principal whichis a natural and probable consequenceofthe crime[s] originally aided and abetted. In order to find the defendantguilty of the [sic] any one of the following crimes[s] of murder, or robbery, or kidnap for rape, or rape in concert, or rape, or sexual penetration/rape by a foreign object - a woodedstake in concert, or sexual penetration/rape by a foreign object — a woodenstake,as charged in Count[s] 1-8, you mustbe satisfied beyond a reasonable doubtthat: 187 1. The crime or any oneof the following crimesof: murder,or robbery, or kidnap for rape, or rape in concert, or rape, or sexual penetration/rape by a foreign object - a wooden stake in concert, or sexual penetration/rape by a foreign object- a woodenstake were committed; 2. That the defendantaided and abetted any one of those crime[s]; 3. That a co-principal in that crime committed the [sic] any one of the following crimes of: murder, or robbery, or kidnap for rape, or rape in concert, or rape, or sexual penetration/rapeby a foreign object - a woodenstake in concert, or sexual penetration/rape by a foreign object - a wooden stake; and 4. That any oneof the following crime[s] of: murder, robbery, or kidnap for rape, or rape in concert, or rape, or sexual penetration/rape by a foreign object - a woodenstake in concert, or sexual penetration/rape by a foreign object - a wooden stake were a natural and probable consequence of the commission of any one of the crime[s] of: murder, or robbery, or kidnap for rape, or rape in concert, or rape, or sexual penetration/rape by a foreign object - a woodenstake in concert, or sexual penetration/rape by a foreign object - a woodenstake. Youare not required to unanimously agree as to which originally contemplated crime the defendant aided and abetted, so long as you are satisfied beyond a reasonable doubt and unanimously agree that the defendant aided and abetted the commission of any of the identified and defined target crimesof: murder, or robbery, or kidnap for rape, or rape in concert, or rape, or sexual penetration/rape by a foreign object - a wooden stake in concert, or sexual penetration/rape by a foreign object - a woodenstake and that any one of those crimes were a natural and probable consequence of the commission of any of the target crimes. Whether a consequenceis “natural and probable”is an objective test based not on what the defendant actually intended but on whata person of reasonable and ordinary prudence would have expected would be likely to occur. The issue is to be decided in light ofall of the circumstances surrounding the incident. A “natural” consequence is one which is within the 188 normal range of outcomes that may be reasonably expected to occurif nothing unusualhas intervened. “Probable” means likely to happen. (2CT 543-544.) B. The Trial Court Instructed The Jury With The Correct Definition Of Aiding And Abetting Liability Initially, as in Argument VIII, ante, appellant’s claim amounts to an argument that the trial court should have, sua sponte, clarified for the jury instructions that werealready correct in law. His failure to request such Clarification, however, forfeits his claim on appeal. (People v. Gutierrez, supra, 14 Cal.App.4th at p. 1439.) “A trial court has no sua sponte duty to revise or improve upon an accurate statement of law without a request from counsel [citation], and failure to request clarification of an otherwise correct instruction forfeits the claim of error for purposes of appeal... .” (People v. Lee, supra, 51 Cal.4th at p. 638.) | In any event, assuming the instant claim is not forfeited, this Court has expressly endorsed the adequacy of CALJIC No. 3.02’s explanation of the natural and probable consequencesdoctrine. (People v. Richardson (2008) 43 Cal.4th 959, 1022 [“First, we reject any challenge to the adequacy of CALJIC No.3.02’s explication ofthe natural and probable _ consequences doctrine’’].) Additionally, in People v. Coffman, supra, 34 | Cal.4th 1, this Court explained: To the extent [defendant] contends that imposition of- liability for murder on an aider and abettor under this doctrine violates due process by substituting a presumption for, or otherwise excusing, proof of the required mentalstate, [he] is mistaken. Notably, the jury here wasalso instructed with CALJIC No. 3.01, advising that an aider and abettor must act with the intent of committing, encouraging or facilitating the commission of the target crime, as well as CALJIC No. 8.81.17, which required, for a true finding on the special circumstance allegations, that defendant[ | had the specificintent to kill the 189 victim. These concepts fully informed the jury of applicable principles of vicariousliability in this context. (id. at p. 107.) Likewise, here, the trial court additionally instructed the jury with CALJIC Nos. 3.01 and 8.81.17, hence there could not have been error. (2CT 542, 555.) Moreover, appellant’s argumentalso fails because the prosecutorin the present case, contrary to appellant’s assertions, did not rely upon the natural-and-probable-consequences doctrine; rather, she repeatedly argued that the evidence established that appellant intended to commitall of the charged crimes, and intended to kill Penny. (See, e.g., 11 RT 2356-2357.) “The prosecutor never argued that one defendant intended only to commit one particular crime, but that the other defendant committed a different crime, which wasthe natural and probable consequence of the commission of the first, thereby making both defendants guilty of the second offense.” (People v. Letner (2010) 50 Cal.4th 99, 183-184.) Indeed, here, the prosecutorspecifically argued that, with 114 injuries, it was likely that the defendants took turns inflicting them on Penny. (1LRT 2364-2365.) The prosecutor also commentedthat, “[Appellant's] the | onethat instigated this entire situation, the murder of Penny.” (11RT 2365.) Although the jury found the personaluse allegations to be not true, or could not reach a verdict on them, the prosecutor nevertheless argued that appellant personally participated in all of the crimes. (11RT 2366, 2372, 2378-2379.) Appellant errs by failing to distinguish between the prosecutors argument and the jury’s verdict. Much like Argument VII, ante, appellant’s argument simply ignores the fact that he was convicted of 190 each and every oneof the underlying crimes, as wellas all of the special circumstance allegations.” Appellant specifically told the police that he watched as Pearson raped Penny,and that, after the rape, he punchedPennyin the face, not once, but twice. (LORT 2145, 2147; 1IRT 2169, 2188.) The jury could have reasonably inferred that punching Pennyin the face after the rape was far more consistent with having participated in the rape, rather than being “sickened”by it. (See LORT 2145; L1RT 2188.) Moreover, a reasonable inference from the evidence, specifically the DNA on appellant’s jacket, is that appellantalso personally raped Penny. (1ORT 1995-1996, 2000, 2006- 2012.) This was by far the more likely scenario,i.e., the DNA and semen transferred to appellant’s jacket as he laid on top of Penny raping her. The natural and probable consequences doctrine was hardly required to convict appellant of any of the instant crimes. Even if appellant did not “personally use” the stake, he certainly helped beat Penny into submissionprior to her being raped/sexually penetrated by a foreign object, to wit, the stake. (ORT 2147; 1IRT 2169, 2188.) Furthermore, the prosecutor explained during her closing argument: So, basically, what that is saying is it is reasonable and logical that after they robbed her, they decided to rape her, and after he raped her, they raped her with a foreign object. It's a reasonable and logical and natural progression as to what was taking place that night. That's what this instruction says, a natural and foreseeable consequenceand ultimately they killed her. Which was a natural, rational and probable consequence of forcing her over that fence, because once they forced her over the fence, her life was over. (11RT 2357.) °° Once again, for this reason, appellant’s complicated, strained and farfetched “chain of logic” and “if A then B” examples are wholly irrelevant, if not fanciful. (See, e.g., AOB 272, 279.) 19] The prosecutor very specifically referred to appellant as a principal by arguing that “he” raped her, and explained that appellant directly participated in the rape by a foreign object by stating that “they” raped Penny with a foreign object. (LIRT 2357.) As in People v. Letner, supra, 50 Cal.4th 99, the prosecutor here never argued that one defendant intended only to commit oneparticular crime, but that the other defendant committed a different crime. *° (/d. at pp. 183-184; see People v. Prettyman, supra, 14 Cal.4th at p. 270.) , Similarly, this Court has previously rejected any argumentthat the natural and probable consequences doctrine unconstitutionally presumes malice on the part of the aider and abettor. (People v. Garrison (1989) 47 Cal.3d 746, 777-778; People v. Bunyard (1988) 45 Cal.3d 1189, 1231- 1232; see also People v. Culuko (2000) 78 Cal.App.4th 307, 322 [The [California] Supreme Court has repeatedly rejected the contention that an instruction on the natural and probable consequences doctrine is erroneous becauseit permits an aider and abettor to be found guilty of murder without malice”’|.) Finally, to the extent that appellant is contending that the application of the natural-and-probable-consequences doctrine in a capital case is a violation of due process because it permits the jury to convict the defendant of the substantive charges and special circumstance allegations without a need to decide if he had the otherwise requisite intent, and would authorize a death sentence based on a vicarious negligence theory ofliability in 6 Appellant relies heavily on People v. Kauffman (1907) 152 Cal. 331, but Kauffmanis inapposite. (See AOB 274-277.) Appellant concedes that “Kauffman wasa case involving a conspiracy theory ofliability for substantive crimes committed in the course of the conspiracy,” whichis completely distinguishable from the facts of the instant case. (See AOB 276.) 192 violation of the Eighth Amendment, this Court has repeatedly rejected these contentions, and should declineto revisit its prior decisions. (Peoplev. Richardson, supra, 43 Cal.4th at p. 1021; see also People v. Coffman, supra, 34 Cal.4th at pp. 107-108 [We agree with the [People v. Neuyen (1993) 21 Cal.App.4th 518, 535] court that CALJIC No. 3.02 correctly instructs the jury on the natural and probable consequences doctrine”); People v. Garrison (1989) 47 Cal.3d 746, 777-778.) C. Appellant Could Not Have Been Prejudiced By Any Error With Respect To The Definition Of Aiding And Abetting Liability Appellant attempts to make muchofthe fact that the jury “found not true the allegation [he] personally used a deadly weapon onthree counts. (3CT 599 [robbery], 600 [kidnap for rape], 601 [rape in concert],” as well as the forcible rape. (AOB 282; 3CT 602.) However, due to the mannerin which the evidence unfolded, i.e., Armstrong did not appear with the stake until after the rape had been completed (LORT 2148), this was a perfectly reasonable finding by the jury. The fact that the jury could not reach agreement on the remainder of the personal use allegations,i.e., as to the murder (3CT 597), rape/sexual penetration by a foreign object while acting in concert (3CT 603), rape/sexual penetration by a foreign object (3CT 604), and torture (3CT 605), simply meansthatall of the jurors could not agree on the personal use allegations. It does not mean that appellant did not personally use the stake as to these counts. Nor does this mean that“the jury understood [appellant’s] liability wasas an aider and abettor.” The evidence plainly demonstrated that the robbery, kidnap for rape and rape in concert were completed without the use of the stake by any oneof the three men, butit also demonstrated that appellant personally, i.e., physically, assisted with the perpetration of each 193 one ofthese three crimes,i.e., by personally taking the food stamps, physically helping to get Penny overthe fence, and by biting and punching her into submission and ultimately death.>” (1LORT 2044, 2046, 2137-2139, 2147.) The absence of prejudice here is analogousto the absence of prejudice in People v. Letner, supra, 50 Cal.4th at page 99. In Letner, this Court observed: | _ To point out, as defendants do, that the ambiguous instruction could have led the jury to “indulge in unguided speculation” (Prettyman, supra, 14 Cal.4th at p. 267 []) concerning the unspecified target offenses, does not establish a reasonable likelihood that the jury did so. As mentioned above, the prosecutor did not rely upon the natural-and-probable- consequences doctrine, but argued that both defendants intended to commitall of the charged offenses. (See id. at p. 273 [] [“‘[b]ecause the parties made noreference to the ‘natural and probable consequences’ doctrine in their arguments to the jury,it is highly unlikely that the jury relied upon that rule whenit convicted defendant’’].) There alsois little doubt that the jury determined that each defendant intendedto kill [the victim], because, as the prosecution conceded, there wasno clear evidenceestablishing which defendant wasthe actual killer, and, as discussed above,the trial court's instructions required in such circumstances that in order to sustain the special circumstance allegations, the jury must find each defendant intendedto kill [the victim]. Thus, the jury's true findings on the special circumstance allegations essentially negate the possibility that the jury relied upon the natural-and-probable-consequences doctrine in convicting defendants of murder, which reliance - absent such findings - otherwise would have been the most likely application of that doctrine under the circumstancesofthe °7 As previously noted, appellant was indisputably much more than an ‘“‘aider and abettor” as to the robbery, as he personally took possession of and spent the food stamps. (ORT 2034, 2044, 2046, 2057; 11RT 2213- 2214.) Indeed, even if one of the other men forcibly took the food stamps from Penny and immediately gave them to appellant, that too would demonstrate that appellant was the “primary actor,” i.e., the leader. 194 present case. In sum,there is no reasonable likelihood the jury misunderstood or misapplied the instruction. (Id. at p. 184.) Letner, in this regard, is virtually identical to the instant case, and outlines very clearly the absence of prejudice in the case at bar. Moreover, the arguments demonstrating the absence of prejudice in Argument VIII, ante, are equally applicable here. In other words, “given these verdicts and findings, the jury necessarily reached unanimous agreement that defendant committed a first degree felony murder based upon[the target crimes].” (People v. Taylor, supra, 48 Cal.4th at p. 626.) Appellant’s claim otherwise is unavailing. . X. THE TRIAL COURT PROPERLY INSTRUCTED THE JURY ON FIRST DEGREE MURDER, AND THE VERDICT FORM REFLECTED THE CORRECT FINDINGS OF FACT REQUIRED FOR FIRST DEGREE MURDER;IN ANY EVENT, ANY ERROR WAS HARMLESS Appellant argues “the verdict form, combined with the jury instructions, incorrectly permitted the jury to find [him] guilty offirst degree murder based on a legal theory that supports only second degree murder, and resulted in a written verdict form that fails to reflect the findings of fact required for first degree murder... .” (AOB 284;see also AOB284-301.) Appellant simply ignores the given jury instructions and well-settled case law to the contrary, and his claim therefore lacks merit. A. Relevant Background Proceedings The verdict form for count 1, murder, first required a finding as to guilt and degree of the murder, and then subsequently, in its latter portion, required findings on the special circumstance allegations. The form presented two options for the jurors to select. Jurors were required to select as to the special circumstance allegations whether they found that appellant 195 was:“(A) The Actual Killer; or (B) An Aider and Abettor and had the intentto kill; or was a Major Participant and acted with reckless indifference to humanlife.” (3CT 597.) The jury circled option B. (/bid.) Option B contained two legal theories: (1) aiding and abetting; and (2) a major participant acting in reckless disregard for human life. These theories applied only to the special circumstanceallegations. (/bid.) Specifically, the verdict form used for count 1 contained the following language: . Wethe jury in the above-entitled action find the defendant WARREN HARDYGUILTYofthe crime of MURDER,in violation of Penal Code Section 187(a), a felony, as charged in Count 1 of the information. Wefurther find it to be Murder of the FIRST Degree. (Insert First or Second) Wefurther find the allegation that the defendant Warren Hardy in the commission of the above offense personally used a dangerous and deadly weapon in violation of Penal Code Section 12022(b)(1) to be (insert True or Not True) Wethe jury in the above-entitled action find the defendant Warren Hardy was: A. The Actual Killer; or B. An Aidér and Abettor and had the intent to kill; or was a Major Participant and acted with reckless indifference to humanlife (Circle all of either “A”or “B”) Wefurther find the allegation of the special circumstance of robbery pursuant to Penal Code Section 198.12(a)(17)(A)to be (Insert Trueor Not True) We further find the allegation of the special circumstance of kidnapping for rape pursuant to Penal Code Section 198.12(a)(17)(B) to be (insert True or Not True) 196 WeFurtherfind the allegation of the special circumstance of rape pursuant to Penal Code Section 198.12(a)(17)(B) to be (Insert True or Not True) Wefurther find the allegation of the special circumstance of rape by a foreign object pursuant to Penal Code Section 198.12(a)(17)(K) to be (Insert True or Not True) Wefurther find the allegation of the special circumstance of torture pursuant to Penal Code Section 198.12(a)(18) to be (Insert True or Not True) (3CT 597-598.) B. General Legal Principles Whenreviewing an instructional ambiguity claim, the court asks whether the jury was reasonably likely to have construed the instruction in a mannerthat violated the defendant's rights. (People v. Whisenhunt, supra, 44 Cal.4th at p. 214.) It is presumed that the jurors were intelligent and capable of understanding the instructions (People v. Laws (1993) 12 Cal.App.4th 786, 796), and followed the instructions as given. (Peoplev. Osband (1996) 13 Cal.4th 622, 714; see People v. Cain, supra, 10 Cal.4th at p. 34 [the jury is presumed to follow the trial court's instructions].) CALJIC 8.80.1, as given in the instant case, provided as follows: If you find [the] defendant in this case guilty of murder of the first degree, you must then determine if [one or more of] the following special circumstance[s]: [are] true or not true: robbery, kidnapping, kidnapping for rape, rape, rape by a foreign object (a woodenstake), or torture. The People have the burden ofproving the truth of a special circumstance. If you have a reasonable doubt as to whether a special circumstanceis true, you mustfind it to be not true. Unless an intent to kill is an element of a special circumstance,if you are satisfied beyond a reasonable doubtthat the defendantactually killed a human being, you need notfind 197 that the defendant intendedto kill in order to find the special circumstanceto betrue. If you find that a defendant was notthe actualkiller ofa humanbeing,or if you are unable to decide whether the defendant wasthe actual killer or an aider or abettor or co- conspirator, you cannotfind the special circumstanceto be true unless you are satisfied beyond a reasonable doubt that the defendant with the intent to kill [aided,] [abetted,| [counseled,] {commanded,] [induced,] [solicited,] [requested,] [or] [assisted] any actor in the commission of the murderin thefirst degree], or with reckless indifference to humanlife and as a major participant [aided,| [abetted,] [counseled,] [commanded,| [induced,] [solicited,] [requested,] [or] [assisted] in the commission of one of more of the following crimes: robbery, kidnapping, kidnapping for rape, rape, rape by a foreign object (a wooden stake), or torture pursuant to Penal Code, § 190.2 (a)(17) which resulted in the death of a humanbeing, namely Penny Keptra also known as PennySigler. A defendant acts with reckless indifference to humanlife when that defendant knowsoris aware that [his] acts involve a grave risk of death to an innocent humanbeing. You must decide separately each special circumstance alleged in this case. If you cannotagreeasto all of the special circumstances, but can agree as to one or more of them, you must make yourfinding as to the one or more upon which you do agree. In order to find a special circumstance alleged in this case to be true or untrue, you must agree unanimously. You will state your special finding as to whetherthis special circumstance is or is not true on the form that will be supplied. C. The Trial Court Properly Instructed The Jury On First Degree Murder Once again, appellant has forfeited the instant contention byfailing to object, in this instance to the structure or wording of the verdict form in the trial court. (See People v. Houston (2012) 54 Cal.4th 1186, 1226-1228 198 [“Had defendant raised a timely objection to the jury instructions and verdict formsat any of these. stages ofthe trial on the ground that the indictmentdid not allege that the attempted murders were deliberate and premeditated, the court could have heard arguments on whether to permit the prosecutor to amend the indictment’’].) An objection to jury verdict formsis generally deemed waivedif not raised in the trial court. (People v. Lewis (1983) 147 Cal.App.3d 1135, 1142; People v. Nichols (1967) 255 Cal.App.2d 217, 224.) In any event, assuming the instant claim is properly before this Court, appellant’s argumentthat the verdict form was somehow a “hybrid”verdict form (because it contained both the verdict of guilt (§ 1151), and findings of fact without a judgment of guilt (§ 1152)) is simply incorrect. (See AOB 286-287.) Appellant ignores the plain language of section 1152, which provides: A special verdict is that by which the jury finds the facts only, leaving the judgment to the court. It must present the conclusionsof fact as established by the evidence, and not the evidence to prove them, and these conclusions of fact must be so presented as that nothing remainsto the court but to draw conclusions of law upon them. Here, the verdict form clearly asked the jury to reach legal conclusions, which they did, and the form did not leave anything for the trial court “to draw conclusions of law upon them.” There was simply nothing “hybrid” about the verdict form. Furthermore, even if the count | verdict form is somehow deemed a hybrid form, appellant concedes that this Court, in People v. Davis (1995) 10 Cal.4th 463, specifically approved hybrid verdict forms, and pointedly rejected the challenge to the verdict form because the defendant could not show the form had interfered with the jury’s deliberative process. (/d. at pp. 511-512; see also AOB 294.) 199 Appellant also acknowledges a holding contraryto his position in People v. Jackson (1996) 13 Cal.4th 1164. (See AOB 294.) In Jackson, the jury was provided verdict forms which required it to find the defendant guilty of premeditated murder, guilty of felony murder, guilty under both theories, or not guilty. The defendant argued that the verdict form was not authorized by statute. This Court rejected that argument, concluding, “The verdict rendered by the jury, however, wasnot a special verdict; it did not present only findings of fact.” (People v. Jackson, supra, 13 Cal.4th at p. 898; see also People v. Neely (1993) 6 Cal.4th 877, 898 [approving the use of verdict forms which required the jury to find the defendant guilty of either premeditated murder or felony murder and concluding the verdict was not a special verdict]; People v. Webster (1991) 54 Cal.3d 411, 446-447 [approving verdict formsfor different theories of murder andstating that special findings may accompanya generalverdict as long as they do not interfere with the jury’s deliberative process]; People v. Farmer (1989) 47 Cal.3d 888, 920, abrogated on other grounds by People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6 [“But in a true special verdict the jury finds only the facts, leaving judgmentto the court. [] Here, the jury returned a general verdict of guilt and, on the assumption it followed instructions, decided the two specific questions afterwards. The findings were thus not a special verdict’’].) Appellant again attempts to piecemeal together a convoluted,strained andillogical readingof pieces of several different jury instructions (see AOB 288-289), while ignoring the plain meaning of others, and he additionally ignores the well-settled principle that jury instructions are read as a whole, rather than from parts of an instruction or from a particular instruction. (See People v. Castillo (1997) 16 Cal.4th 1009, 1015-1016 [““[T]he correctness ofjury instructions is to be determined from the entire 200 charge of the court, not from a consideration ofparts of an instruction or from a particular instruction.’ [Citation.]”].) Indeed, the jury was specifically instructed pursuant to CALJIC No. 1.01 that the instructions were to be considered “as a whole and eachinlight of all the others.” (2CT 517.) | | This Court has specifically approved the verdict form at issue here in People v. Pearson, supra, 53 Cal.4th 306. In Pearson, this Court noted: The verdict form for the offense of murder asked the jury to make oneof twofindings, that defendant was “A. The Actual Killer; or [§] B. An Aider and Abettor and hadthe intentto kill; or was a Major Participant and acted with reckless indifference to humanlife.” The jury selected finding B. The jury thereby showedits reliance on an aiding and abetting theory. (dd. at p. 322.) Appellant, however, simply fails to address this Court’s approvalof virtually identical verdict form language(as stated in a written opinion following codefendant Pearson’s separatetrial). Appellant “acknowledgesthat [the] instruction likely would have sufficed if some other instruction, or the verdict form itself, made clear that the selection ofA or B related only to special circumstances.” (AOB 292.) In fact, CALJIC 8.80.1 specifically stated as much in its fourth paragraph, ante, and directed the jury to the verdict form at issue, thereby eliminating any possibility of error. Moreover, the very first sentence of CALJIC No. 8.80.1 states, “If you find the defendantin this case guilty of murder of the first degree, you must then determineif one of more of the following special circumstance[s]: [are] true or not true:....” (2CT 553.) Furthermore, even if there wasstill some inexplicable confusion, CALJIC 8.80.1 then specifically instructed in the last paragraph, “You will state your special finding as to whetherthis special circumstanceis oris not true on the form that will be supplied.” (2CT 554; see People v. Mejia (2012) 211 Cal.App.4th 586, 633 [“‘it includes the paragraph of the form 201 instruction, paragraph three above, defining reckless indifference to human life. This definition is applicable to aiders and abettors in felony murder cases only. . .”’].) In People v. Pearson, supra, this Court further noted: Thejury wasnotlikely to understand the simpler CALJIC No. 8.81.17 as negating or displacing CALJIC No. 8.80.1, but rather as supplementing it. As the Attorney General suggests, the two instructions, read together, outline respectively the relationship of the murderto the predicate felony (CALJIC No. 8.81.17) and the mental state required for either an actualkiller or an aider and abettor in the murder (CALJIC No. 8.80.1). The instructions as a whole posed no reasonable likelihood (People v. Kelly (1992) 1 Cal.4th 495, 525 []) ofjury ¢confusion on the point defendantidentifies. (People v. Pearson, supra, 53 Cal.4th at p. 324.) Appellant’s claim fails on the merits. D. Appellant Could Not Have Been Prejudiced By Any Error With Respect To The Definition Of First Degree Murder Or With Respect To The Structure Of The Verdict Form In any event, appellant could not have been prejudiced by anyerror in the count 1 standard verdict form. Indeed,at trial, the parties agreed that, to find appellant guilty of second degree murder, the jury would haveto find that the murder wasnot “premeditated and deliberated,” and that appellant did not commit any of the enumerated felonies. (12RT 2481-2483; see People v. Mejia, supra, 211 Cal.App.4th at p. 634 [“To the extent the jury found any of them to be aidersand abettors of the direct perpetrator or perpetrators, it found that they were awareof the perpetrator's intentto kill, intended to facilitate the desired killing, and by conduct did facilitate that purpose”]. Sucha result in the instant case, given appellant’s admissions and the other overwhelming evidence of guilt, was not even a remote possibility. 202 Moreover, appellant simply ignores the fact that the jury, during bP)deliberations, sent the following question to thetrial court, “On the “guilty for murder verdict sheet, there is an instruction/note on the sheet to “insert first or second”related to degree. Is 2nd degree an option and if so, whatis the definition.” The trial court answered that question as follows: Murderof the second degree is the unlawful killing of a human being with malice aforethought, when the perpetrator intended unlawfully to kill a human being, but the evidenceis either insufficient to prove deliberation and premeditation or the felony was not an enumeratedfelony. . If the felony was an enumerated felony, then the murder would be first degree murder. All felonies alleged in this case are enumerated felonies. Stated another way,if you find that the evidenceis insufficient to prove deliberation and premeditation, and you further find that the murder did not occur during the commission of any of the felonies listed in counts 2 through 8, then the murder would be of the second degree. If you are convinced beyond a reasonable doubt and unanimously agree that the crime of murder has been committed by a defendant, but you unanimously agree that you have a reasonable doubt whether the murder wasofthe first or of the second degree, you must give the defendant the benefit of that doubt and return a verdict fixing the murder as of the second degree, as well as a verdict of not guilty of murder of the first degree. (12RT 2488-2489.) Thus, the jury was well aware that second degree murder was an option in the instant case, but also well advised that, pursuant to CALJIC No.8.80.1, it must find the degree of murder prior to determining the truth of the special circumstanceallegations. (2CT 553.) Appellant’s argument that the jury somehow completed the verdict form in reverse order, and 203 ignored the plain dictates of CALJIC No. 8.80.1, is rank speculation that is completed unsupported by the record.” Finally, appellant ignores the myriad of other instructions given to the jury, i.e., CALJIC No. 8.10, Murder — Defined (2CT 545),CALJIC No. 8.21, First Degree Felony-Murder (2CT 550), CALJIC No.8.27,First Degree Felony-Murder — Aider and Abettor (2CT 552), etc. These and other instructions madeit absolutely clear that appellant could not be convicted of first degree murder based solely on a “reckless indifference to humanlife.” Appellant’s claim fails, as he could not possibly have been prejudiced by any assumed minor ambiguity in the count |verdict form. XI. THE TRIAL COURT PROPERLY INSTRUCTED THE JURY ON AIDING AND ABETTING LIABILITY AND TORTURE; IN ANY EVENT, ANY ERROR WAS HARMLESS Appellant argues that the “judgment of death, and the judgmentof guilt to counts | and 8, and the true findings on the torture allegations should be reversed becausethe trial court failed to instruct the jury that aiding and abetting liability and torture required specific, not general intent ....” (AOB 302; see also AOB 302-315.) Appellant’s contentions ignore the given jury instructions and well-settled case law to the contrary, and his . <4: 59 claims are therefore unavailing. °§ Moreover,later in his opening brief, appellant plainly concedes that the jury “decided murder” prior to makinga finding on the special circumstance allegations. (AOB 322-323.) Appellant admits that, “The first verdict form jurors had to complete was for murder. (3CT 597.) Only after jurors decided murderdid they turn their attention to the special circumstances, including whetherthe special circumstance of torture was true. (AOB 322-323.) Given appellant’s plain concession, his claim must fail. °? “As will be noted in Argument XII, post, the trial court did improperly instruct the jury on torture as a predicate felony for first degree felony murder, because torture was not added to section 189’s list of (continued...) 204 A. Relevant Law And Background Proceedings The standard of review for instructional error and related legal points and authorities have been well-outlined in Arguments VIII, [X and X, ante. In the interest of brevity, respondent will not re-state that law here. This Court applies the “reasonable probability” test of prejudice to the court's failure to give a legally correct pinpoint instruction. (People v. Hughes (2002) 27 Cal.4th 287, 362-363; see 2CT 538 [CALJIC No. 3.30].) A defendant who facilitates torture as an aider and abettor — i.e., acts with the intent or purpose of committing, or of encouraging or facilitating the commission of that crime (see People v. McCoy, supra, 25 Cal.4th at pp. 1117-1118) —is equally liable as the actual torturer. (People v. Lewis (2004) 120 Cal.App.4th 882, 888-889.) Torture’s mental state element describes a specific intent rather than general criminal intent. (People v. Burton (2006) 143 Cal.App.4th 447, 451-452.) However,torture does not require the defendant act with premeditation and deliberation, and it does not require that he intend to inflict prolonged pain. (People v. Hale (1999) 75 Cal.App.4th 94, 107.) | The jury’s findings on the torture count and the torture-related special allegations consisted of the following: As to count 1 (murder): “Wefurther find the allegation of special circumstances of torture pursuant to Penal Code Section 190.2(a)(18) to be TRUE (Insert True or Not True).” (3CT 598) As to count 4 (forcible rape while acting in concert): “We furtherfind the allegation that the defendant Warren Hardy in (...continued) predicate felonies until after the instant murder, but that is a different issue from the one presented in the instant argument. Moreover,as will be noted later, that error was harmless. 205 the commission of the above offense that the following circumstancesapply: .. . 2) torture, in violation of Penal Code Section 206, pursuant to Penal Code Section 667.61(a) and (d) to be TRUE (Insert True or Not True).” (3CT 601) Asto count 5 (forcible rape): “We further find the allegation that the defendant Warren Hardy in the commission of the above offense that the following circumstances apply: ... 2) torture, in violation of Penal Code Section 206, pursuant to Penal Code Section 667.61(a) and (d) to be TRUE (insert True or Not True).” (3CT 602); As to count 6 (forcible rape/sexual penetration by a foreign object while acting in concert): “We further find the allegation that the defendant Warren Hardy in the commission of the above offense that the following circumstances apply: . . . 2) torture, in violation of Penal Code Section 206, pursuant to Penal Code Section 667.61(a) and (d) to be TRUE (Insert True or Not True).” (3CT 603) Asto count 7 (forcible rape/sexual penetration by a foreign object): “We further find the allegation that the defendant Warren Hardy in the commission of the above offense that the following circumstances apply: . . . 2) torture, in violation of Penal Code Section 206, pursuant to Penal Code Section 667.61(a) and (d) to be TRUE (Insert True or Not True).” (3CT 604) As to count 8 (torture)” “We the jury in the above-entitled action find the defendant WARREN HARDY GUILTYofthe crime of TORTURE,in violation of Penal Code section 206, a felony, as charged in Count 8 of the information.” (3CT 605.) 206 CALJIC No. 2.02, Sufficiency of Circumstantial Evidence To Prove Specific Intent Or Mental State, instructed the jury in the instant case as - follows: The specific intent or mental state with which anactis done may be shownbythe circumstances surrounding the commission of the act.However, you may not [find the defendant guilty of the crime charged in Counts 1, 2, and 3 or find the allegations pursuant to Penal Code section 667.61 (a), (b), (d), and (e) to be true, unless the proved circumstances are not only(1) consistent with the theory that the defendant had the required specific intent or mental state but (2) cannot be reconciled with any other rational conclusion. Also, if the evidence as to any specific intent or mental state permits two reasonable interpretations, one of which points to the existence of the specific intent ormental state and the other to its absence, you must adoptthat interpretation which points to its absence. If, on the other hand, one interpretation of the evidenceas to the specific intent or mental state appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable. (2CT 520.)” CALJIC No. 3.30, Concurrence Of Act And General Criminal Intent, instructed the jury in the case at bar as follows: In the crime[s]| [and] unless otherwise instructed [allegation[s]] charged in Count[s] 4, 5, 6 7, and 8, namely, rape in concert, rape, sexual penetration by a foreign object (a wooden stake) in concert, sexual penetration by a foreign object ~ a woodenstake, or torture and the personaluse of a deadly weapon — a woodenstake, there must exist a union or joint 6 Appellant claims that “[nJeither torture in count 8, nor the special torture allegations, was[sic] included [in CALJIC No.2.02].” (AOB 308.) Appellant inexplicably ignores the plain language of CALJIC No. 2.02 as given to the jury, which includes the section 667.61 torture allegations. QCT 520.) What CALJIC No. 2.02 did not include was the torture charge alleged in Count 8. 207 operation of act or conduct and general criminal intent. General criminal intent does not require an intent to violate the law. Whena personintentionally does that which the law declares to be a crime,[he] is acting with general criminal intent, even though [he] may not know that[his] act or conduct is unlawful. (2CT 538; LIRT 2300-2301.) CALJIC No, 3.31, Concurrence Of Act And Specific Intent, instructed appellant’s jury as follows: In the [crime[s}] [and] [allegation[s]] charged in Count[s] 1, 2,3, namely, murder, robbery, or kidnap for rape, and the special allegations pursuant to Penal Code section 667.61(a), (b), - (c), (d), and (e), there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator. Unless this specific intent exists the [crimes[s] [or] {allegation] to whichit relates [is not committed] [or] [is not true]. [The specific intent required is included in the definition[s] of the [crime[s]] [or] [allegation[s]] set forth elsewhere in these instructions. | (2CT 539; 1IRT 2301-2302.)°" CALJIC No. 3.31.5, Mental State, instructed the jury as follows: In the crime[s] changed in Count 1, namely, murder, there must exist a union or joint operation of act or conduct and a certain mental state in the mind of the perpetrator. Unless this mental state exists the crime to which it relates is not committed. [The mental state required [is] included in the definition of the crime set forth elsewhere in these instructions. | (QCT 540; 11RT 2302.) 6! CALJIC No. 3.31 did notinstruct the jury incorrectly. Rather,it left merely Count 8 off the list of specific intent crimes. 208 B. The Trial Court Properly Instructed The Jury On Aiding And Abetting Liability And Torture Here,the trial court properly instructed the jury on aiding and abetting, and, but for one minor nonprejudicial error (including torture within the definition of CALJIC No. 3.30), also instructed correctly on the torture substantive offense, as well as on the torture special allegations. Initially, as in ArgumentVIII, ante, appellant’s claim amounts to an argumentthat the trial court should have, sua sponte, clarified for the jury instructions that, but for one insignificant exception, were already correct in law. His failure to request such clarification, however, forfeits his claim on appeal. (People v. Gutierrez, supra, 14 Cal.App.4th at p. 1439.) In any event,assuming his contention is properly before this Court, appellant’ s claim is largely foreclosed by this Court’s ruling in Peoplev. Pearson, supra, 53 Cal.4th 306. This Court, in Pearson, explained at length as follows: Thetrial court instructed on the crime oftorture (§ 206) through CALJIC No. 9.90,telling the jury that crime required proofthat “[a] person inflicted great bodily injury” on the victim and that “[t{he person inflicting the injury did so with specific intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose.” [] Defendant is correct this instruction, by itself, does not require a finding that an aider and abettorto the torture personally harbored the specific intent that the torturer cause extreme pain to the victim. The court's instruction defining aiding and abetting (CALJIC No.3.01), however, explained that defendant wasliable on that theory only if he acted “[w]ith knowledge of the unlawful purpose of the perpetrator” and “[w]ith the intent or purpose of committing or encouraging or facilitating the commission of the crime.” And while the court did instruct on the natural and probable consequences extension of accomplice liability (see People v. McCoy (2001) 25 Cal.4th 1111, 1117 []), telling the jury defendant was guilty of certain charged offenses if they were the natural and probable consequencesof a target offense in which defendant might be found complicit, torture was not among the charged offenses 209 listed in this instruction. [] The combination of instructions on torture and aiding and abetting thus ensured defendant could not be found guilty of torture as an aider and abettor without proof he knew andsharedthe actual torturer's specific intent to inflict extreme pain and suffering on the victim. (A/cCoy, at p. 1118 lI.) (Ud. at pp. 320-321, footnotes omitted.) Furthermore, appellant’s constant mantra that the jury found him guilty on an aiding and abetting theory ignores the definition of “principals” in CALJIC No. 3.00. That instruction includes within the definition of principals: “2. Those whoaid and abet the [commission] of the crime.” (2CT 541.) Additionally, the very next instruction, CALJIC No. 3.01, Aiding And Abetting - Defined, requires, inter alia, that an aider and abettor not only have “knowledge of the unlawful purpose of the perpetrator,” but also that the aider and abettor have “the intent or purpose of committing or encouraging or facilitating the commission of the crime.” (2CT 542; 11RT 2302-2303.) Thus the jury found appellant to be a principal with the requisite specific intent for each crime. Moreover, as to the murderitself, the jury clearly could have found that appellant committed the first degree murder with premeditation and deliberation, even though they found that he wasnotthe actual killer. A special instruction submitted by the People specifically informed the jury that they “need not unanimously agree on the theory offirst degree murder. In other words, the jury need not agree as to whether the murder was deliberate and premeditated or if the murder was committed during the commission of one or more of the following crimes... .” (2CT 547; 11RT 2308.) Additionally, CALJIC No. 8.21, First Degree Felony-Murder, specifically advised the jury that torture required specific intent as follows: The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs [during the 210 commission of any of the following crimes:. . . or torture,is murder of the first degree when the perpetrator had the specific intent to commit that crime. The specific intent to commit any of the following crimes: .. .or torture and the commission of any such crime must be proved beyond a reasonable doubt. (2CT 550; 11RT 2310-2311.) Thus, appellant’s argumentthat the jury somehow convicted him of murder and torture on an aiding and abetting theory (without a finding of specific intent) simply ignores the record. Moreover, as appellant must concede, the trial court specifically left torture off the list of crimes that could be established by the natural and probable consequences theory. Indeed, during their deliberations, the jury asked a very specific question about whether torture should be included amongthat list of crimes. (3CT 590.) After a lengthy debate, the parties agreed that torture would not fall among the class of crimes that could be established by the natural and probable consequencesdoctrine, reinforcing to the jury that torture, as stated in its definition, constituted a specific intent crime. (See 12RT 2447-2475.) This is indisputable evidence that the jury was astute enoughto identify the difference between the different crimes charged in the information. _ Asfurther noted by this Court in Pearson: The instruction on first degree murder perpetrated by torture (CALJIC No. 8.24), similarly to the instruction on the offense of torture, required a finding that “[t]he perpetrator” of the murder acted with the “intent to inflict extreme and prolonged pain”on the victim (see fn. 3, ante ). Again, however, the aiding and abetting instruction (CALJIC No. 3.01) supplemented this direction by explaining an aider and abettor must know ofthe direct perpetrator's unlawful purpose and must act with the intent of furthering the perpetrator's crime. Perhaps a juror could have read the inclusion of murderin the list of charged crimes subject to the natural and probable consequences rule as suggesting defendant could be guilty of murder by torture if he intentionally assisted Hardy or Armstrong in one of the 211 listed target crimes, regardless of defendant's personal intent regarding the victim's torture, though such a convoluted interpretation of the instructions seems unlikely. In any event, such reasoning would appear consistent with the natural and probable consequencesrule itself, which extends accomplice liability to the perpetrator's reasonably foreseeable crimes regardless of whether the defendant personally harbored the specific intent required for commission of the charged, nontarget offense. (See People v. McCoy, supra, 25 Cal.4th at p. 1118,fn. 1 []; People v. Prettyman (1996) 14 Cal.4th 248, 261 [].) Likewise, here, appellant’s “convoluted” chain-of-logic argument must necessarily fail. C. Appellant Could Not Have Been Prejudiced By Any Error With Respect To The Aiding And Abetting Or Torture Instructions Appellant could not have been prejudiced by the minorerrorin CALJIC No. 3.30, and, as previously noted, there was noerrorat all with respect to the aiding and abetting instructions. Fatal to appellant’s argumentisthe fact that the trial court instructed the jury pursuantto CALJIC No. 8.81.18, Special Circumstances — Murder Involving Infliction Of Torture, as follows: To find that the special circumstance, referred to in these instructions as murder involving infliction of torture, is true, each ofthe following facts must be proved: 1. The murderwasintentional; and 2. [The] defendant intendedto inflict extremecruel physical pain and suffering upon a living human beingfor the purpose of revenge, extortion, persuasion or for any sadistic purpose. (2CT 556; 1IRT 2318,italics added.) This Court also noted in Pearson: Nordid the court err in instructing on proof of defendant's intent to inflict pain on the victim with respect to the torture- murder special circumstance. Theinstruction explicitly required 212 a finding “defendant” intendedto inflict extreme pain and suffering on the victim, precluding the jury from resting a true finding on the theory that only Hardy or Armstrong actually intendedto torture [Penny]. (People v. Pearson, supra, 53 Cal.4th at p. 321.) Moreover, CALJIC No. 3.30 specifically included the trial court’s “unless otherwise instructed” language, specifically making that instruction subordinate to the other properly given torture instructions. This also | served to alert the jury that they had been “otherwise instructed”as to torture. (2CT 538.) Appellant ignores this language, as well as the plethora of correct torture instructions, and seizes on one minor mistake in an avalancheofinstructions to boldly claim reversible error. The law and given instructions, as noted above, dictate otherwise. . Furthermore, and most importantly, CALJIC No,9.90, Torture, specifically instructed the jury in pertinent part that: In order to prove this crime, each of the following elements must be proved: 1. A person inflicted great bodily injury upon the person of another; and 2. The person inflicting the injury did so with specific intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose. (2CT 568; 11RT 2331-2332.) Appellant concedesthat the substantive instructions for the crime oftorture in count 8 were correct. (AOB 312.) However, he speculates without foundation that the jury simply disregarded this plain statement of the law. Morestrikingly, and analogousto the instant case, this Court in Pearsonalso noted that the prosecutor incorrectly included torture as one of the charged crimes to which the jury could apply the natural and probable consequencesrule andthat, in her rebuttal argument, the prosecutor 213 suggestedthe intent tocause pain, required for torture, could have been held by “defendant or his accomplices.” (People v. Pearson, supra, 53 Cal.4th at p. 320, fn. 5.) Nevertheless, despite the gravity of that error, this Court found any misinformation to be harmless. (Id. at p. 321.) In Pearson, this Court examined a closely-related issue, and noted that, even though“the torture count was also omitted from instructions on concurrence ofact and specific intent,” defendant Pearson could not have been prejudiced. (/d. at p. 326.) The Pearson court noted that, “the jury necessarily determined any such intoxication did not prevent defendant from forming the specific intent to permanently deprive [Penny] of her property or the specific intent to rape her, mental states the jury was instructed were required for conviction of robbery and kidnappingforrape, respectively.” (/d. at p. 325.) The samelogicis true here, i.e., the jury found the requisite specific intent for the other crimes listed above (robbery and kidnap for rape), henceit is highly unlikely that such a minorerror in one instruction made any difference whatsoever. Finally, since the jury was properly instructed on the definition of — torture itself, as well as on the torture special allegations, there is absolutely no probability that the jury used the wrong standard for torture, and the minor drafting error was clearly harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 26.) Essentially, appellant points to one obscure instruction where count 8 was mistakenly left among a laundry list of crimes, and ignores at least seven other instructions which instructed the jury correctly, ie., CALJIC Nos. 2.02, 3.00, 3.01, 3.31, 8.21, 8.81.18, and 9.90." As noted above, appellant also ignores the fact that the © Indeed, appellant claimsthat the jury was instructed 11 times on torture. (See AOB 318-321.) 214 jury asked a question on this specific issue to correct the mistake as to anotherinstruction. (3CT 590; 12RT 2447-2475.) Consequently, appellant could not have been prejudiced under any conceivable scenario, or undereither the state or federal standard of review, and his claims therefore fail. (See People v. Jennings (2010) 50 Cal.4th 616, 676-677 [evaluating trial court error in omitting the actus reas requirementofthe torture-murder special-circumstance by assessing the ee instructions as a whole to determine ‘“‘if there was a reasonablelikelihood the jury applied the challenged instruction in an impermissible manner’”’].) XU. THE TRIAL COURT IMPROPERLY INSTRUCTED ON TORTURE AS A PREDICATE FELONY FOR FELONY MURDER, BUT THE ERROR WAS HARMLESS Appellant appears to be correctthat the trial court improperly included torture amongthe predicate felonies for felony murder, but he incorrectly asserts that the error was somehowprejudicial. (AOB 316-323.) This Court has specifically addressed the precise error at issue here and found it to be harmless. . In People v. Pearson, supra, this Court noted: In its instructions on felony murderas a theory offirst degree murder, the trial court included torture (along with robbery, kidnapping, rape, and sexual penetration by foreign object) as a possible predicate felony upon which a guilty verdict could be based. As the Attorney General concedes, this waserror, as torture in violation of section 206 was not added to section 189’s list of predicate felonies for first degree murder until 1999, after [Penny] Sigler's murder. (Stats.1999, ch. 694, § 1, p. 5054.) (id. at p. 319.) However, this Court in Pearson went on to note that: Weagree with the Attorney General that the error was harmless because the jury necessarily convicted defendant of first degree murder on other, proper felony-murdertheories. 215 Thejury found true special circumstanceallegations that defendant murdered [Penny] Sigler while engaged in the -commission of robbery, kidnapping, rape, and foreign object rape. Because a killing in commission of any of these offenses constitutes first degree murder undersection 189, it follows the jury must unanimously have found defendant guilty offirst degree murder onthe valid theory the killing occurred during the commission ofthese felonies. (See People v. Haley (2004) 34 Cal.4th 283, 315-316, []; People v. Marshall (1997) 15 Cal.4th 1, 38 [].) The erroneous instruction thus did not affect the verdict and was, on any standardofprejudice, harmless. (id. at p. 320.) In a footnote, this Court also observed: Torture as a predicate for first degree felony murderis distinct from first degree murderas a killing “perpetrated by meansof... torture” (§ 189), a theory on which the jury was also instructed. “The elements of first degree murderby torture are: ‘(1) acts causing death that involve a high degree of probability of the victim's death; and (2) a willful, deliberate, and premeditated intent to cause extreme pain or suffering for the purpose of revenge, extortion, persuasion, or anothersadistic purpose. [Citations.]’ (People v. Cook (2006) 39 Cal.4th 566, 602 [].) The prosecution need notestablish that the defendant intended to kill the victim (idid.), but must prove a causal relationship between the torturous acts and the death [citation].” (People v. Jennings (2010) 50 Cal.4th 616, 643 [].) (Id. at p. 319, fn. 3.) Appellant’s only argument rebutting this Court’s reasoning asserts that, “As explained in ArgumentVIII, ante, the standardfor reversal based on factual or legal deficiencies in the prosecution’s case differ. Argument VIII also demonstrated the evidence failed to establish an independent felonious purpose for any of the several felonies.” (AOB 322.) However, respondent response in ArgumentVIII, ante, has demonstrated the fallacy of appellant’s logic and, in the interest of brevity, respondent will not repeat that argumenthere. 216 Moreover, appellant again incorrectly claims that the verdicts definitively showed that appellant “was not armed with, and did not use a weapon, including the one usedto inflict torture. Rather, jurors found [appellant] was vicariously liable.” (AOB 318.) In fact, as previously noted, the jurors could not reach a verdict on the personal use allegations, whichis a far cry from finding that appellant did not personally use a weapon. (3CT 597-605.)° | Based on the aforementioned mountain of evidence, it is certainly equally likely that the jurors found that appellant committed the first degree murder with premeditation and deliberation, as well as committing it during one of the predicate felonies for felony murder. In any event, as this court noted in Pearson, any error wasclearly harmless. XII. THE TRIAL COURT WAS NOT REQUIRED TO INSTRUCT ON THE LESSER-INCLUDED OFFENSE OF THEFT; IN ANY EVENT, ANY ERROR WAS HARMLESS Appellant argues that the “judgment of guilt to count 2, robbery, the special circumstancefinding of the commission of robbery during a murder, the first-degree murder conviction, and the judgmentof death, should be vacated, becausethe trial court failed to instruct the jury on the lesser included offense of theft... .” (AOB 324; see also AOB 324-351.) Appellant’s claim ignores the law.” 8 As previously noted, the jurors only found the personal use allegations “not true” as to the robbery, the kidnapping for rape, the forcible rape in concert, and the forcible rape, which matchedthe prosecutor’s ultimate theory (and appellant’s statement) that Armstrong appeared out of the darkness carrying the stake after the rape had been completed. (ORT 2148; 3CT 599-602.) 64 Althoughthe trial court has a sua sponte duty to instruct as to lesser-included substantive offenses, as appellant concedes, no such duty exists as to the felony murder chargeor the special circumstance (continued...) 217 A. Relevant Background Proceedings The jury found appellant guilty of robbery as charged in count 2, and found the robbery special circumstance allegation to be true. (2CT 597, 599.) The robbery count and special circumstance allegation were based on evidence which demonstrated that: 1) Penny had been given certain specific food stamp couponsonthe evening of her death (1ORT 2065); 2) the specific serial-numbered food stamp couponsthat were in Penny’s possession were used at a market frequented by appellant (1ORT 2045- 2049); 3) the owner of the market selected appellant’s photograph from a photograph lineup andidentified him as being present in the market during the period in question (1ORT 2043-2047); and 4) a serial-numbered food stamp booklet cover was foundlying to the rear of the building behind which Penny’s battered body was ultimately discovered by Mr. Bark.® (1ORT 2051, 2054; 11RT 2353.) The evidence further demonstrated that the food stamps were taken from Penny by force or fear while she wasstill alive and conscious. (1ORT 2146-2147; 11RT 2188, 2352.) Thetrial court instructed the jury on the elements of robbery using CALJIC No. 9.40, included robbery in the felony murderinstructions using CALJIC Nos. 8.10, 8.21 and 8.27, and included robberyin the special circumstancesinstructions using CALJIC Nos. 8.80.1 and 8.81.17. (2CT 550-555, 558.) (...continued) allegations. (See AOB 337.) Thus, appellant’s claim as to the felony murder charge or the special circumstance allegations are forfeited due to his failure to request such instruction in the trial court. (See People v. Valdez, supra, 32 Cal.4th at p. 110; People v. Cash, supra, 28 Cal.4th at p. 737; People v. Miller (1994) 28 Cal.App.4th 522, 526; see also AOB 341.) 6° Appellant claimsthat the food stamp cover was paper, andeasily could have been moved there by animals “over the course ofthat intervening week.” (AOB 328.) To the contrary,it is highly unlikely that “animals” took or moved the food stamps. 218 Thetrial court specifically asked defense counsel if he desired any instructions on lesser-included offenses, and counsel declined any such instructions. Defense counsel then confirmed the prosecutor’s question that he “wasnotasking for any as a result of tactical reasons.” (1IRT 2402.) Consequently, due to the lack of any evidence supporting such an instruction, as well.as the lack of a request from the defense,the trial court did not instruct the jury that theft is a lesser included offense of robbery. B. General Legal Principles “ Thus appellant’s claim that “the defense also never attempted to portray [appellant] as having stellar or even good character”is clearly false. (AOB412.) 256 In any event, assumingthat the trial court erred, any error in admitting the evidence (of the “jumping in” and the incident on the bus) wasclearly harmless. Whena trial court erroneously admits section 190.3, factor (b) evidence understate law, the penalty phase judgment will be reversed only if there is a reasonable possibility the error affected the verdict. (Peoplev. Brown (1988) 46 Cal.3d 432, 446-448; People v. Gonzalez (2006) 38 Cal.4th 932, 961.) Here, properly admitted factor (b) evidence showed that appellant, just as he had in the murder, ganged up on oneperson with his cohorts and delivered a beating.” It also showed an impliedthreat to use force or violence on the bus (again in a “three-on-one” scenario) to promote the supremacy ofhis gang. Additionally, the defense itself admitted evidence of appellant’s gang involvementprior to the prosecutor introducing his rebuttal evidence. For example, Pamela Armstrongtestified extensively about appellant’s gang- background. She indicated that, by the age of 13, appellant spent his time with gang members. (13RT 2795, 2804.) Ms. Felix also testified that appellant was a gang member. (13RT 2828.) Moreover, Albert Scales, the pastor, opined that appellant was involved with gangs. (13RT 2869-2870.) Finally, Dr. Osborn indicated that appellant was a Scottsdale Piru Bloods gang memberandthat he had a “perverse kind of worth within the gang.” (13RT 2942.) Thus,this is not a case where the prosecution somehow “tainted” appellant with gang evidence because, as appellant concedes, 7© Indeed, defense counsel even seemed to acknowledgethat the evidence could have been “properly admitted” during the prosecution’s initial penalty phase case-in-chief, and seemedto be objecting onlyto its admission during the prosecution’s rebuttal phase of the case. Thus, appellant’s only real complaint was about the order of the evidence, which also demonstrates that its admission was harmless. (See 13RT 2889.) 257 >“defense evidence showed[that appellant] was a gang member... .” (AOB 410.) Further, as discussed above, appellant’s case in mitigation paled in comparison to the properly admitted evidence in aggravation,particularly the circumstancesof the crime. (See Statement of Facts, ante, § II.) Quite simply, given the savagery inflicted on Penny, as well as the nature of the other evidence introduced by the People during the penalty phase, there is - no chancethat relatively minimal andbrief testimony regarding the ‘Jumping in” and the incident on the bus somehow swayed the jury to impose death. (See Statementof Facts, IJ.A.) | Accordingly, there is no reasonable possibility that any error affected the penalty verdict. (See People v. Martinez, supra, 31 Cal.4th at p. 694- 695; cf. People v. Pinholster, supra, 1 Cal.4th at p. 962 [admission of irrelevant aggravating evidence rarely reversible error]; People v. Wright (1990) 52 Cal.3d 367, 426-427 [same].) Indeed, appellant cannot show prejudice under any standard. Under the circumstances, appellant’s claim must therefore be rejected. XVII. THE TRIAL COURT DID NOT IMPROPERLY PRECLUDE THE CROSS-EXAMINATION OF A PROSECUTION WITNESS; IN ANY EVENT, ANY ERROR WAS HARMLESS Appellant contendsthatthe trial court improperly “precluded cross- examination of a prosecution witness concerning a prior incident during which [his] son suffered a stabbing injury. (AOB 423, see also AOB 423- 431.) Appellant’s claim misconstrues the record andis unavailing. | A. Relevant Proceedings The prosecution called two LBPD police officers, Officers Ponce and Cloughesy, whotestified about a “911”call from appellant’s home in April 1996. The officers indicated that they discovered appellant’s fouror five- 258 year-old son with a stab woundto his left thigh. On cross-examination, defense counsel sought to introduce Officer Cloughesy’s testimony concerning any results from any Department of Children Services (DCS) investigation into the incident, as well as any final determination by the DCS. Thetrial court sustained the prosecutor’s relevance objection to that - testimony being elicited from Officer Cloughesy, and the defense made no attempt to legitimately introduce the evidence from a proper source. (12RT 2629-2630.) Specifically, at the time of the incident, Officers Ponce and Cloughesy arrived at the residence to find appellant, who was 19 years old at the time, sitting on the porch holdinghis five-year-old son. Appellant was holding a tissue to the back of his son’s left thigh, and he repeatedly told his son to say that his injury was an accident. (12RT 2588, 2624.) Appellant was underthe influence of alcohol with a .10 blood alcohol content. (12RT 2617-2618.) The child was bleeding from a two-inch diameterpuncture wound. (12RT 2628.) After the paramedics arrived, appellant would not release his son, who had to be forcibly removed from his grasp. (12RT 2589.) Officer Poncetestified that appellant gave three different stories to explain the boy’s injury: 1) appellant’s keys, which were in appellant’s pocket, had stabbed the boy (12RT 2590); 2) a knife in appellant’s pocket had stabbed the boy (12RT 2592-2593); and 3) appellant and his son had fallen onto the kitchen table, and his son was cut as a result. (12RT 2613). Officer Ponce thought the explanation was inconsistent with the wound. (12RT 2617.) Officer Cloughesy later spoke with the child at the hospital as he received medical treatment. The boy reported that he had wrappedhis legs around appellant, and felt a stabbing. He screamed, and appellant put the boy down,called “911,” and held a tissue to the wound. (12RT 2629.) 259 Officer Ponce subsequently arrested appellant, because he believed that appellant had intentionally stabbed his son. (12RT 2614.) The following colloquy occurred during the cross-examination of ~ Officer Cloughesy: Q [BY DEFENSE COUNSEL MR. YANES]: Whocalled 9-1-1? A [OFFICER CLOUGHESY]: The defendant. Q: Okay. A: He called 9-1-1, grabbed some Kleenex, put him on the back of his leg and held him onthe front porch. Q: Until the police came? A: Until the police came. Q: Did you contact the Department of Children Services? A: Yes, I did. MS. LOCKE-NOBLE [THE PROSECUTOR]: Objection, Your Honor. Irrelevant. THE COURT:Well, that answer will stand. I’m not sure I see the relevance of anythingelse. Go ahead. MR. YANES: Let’s venture another one, Your Honor. Q: Were you aware of their determination of what happened? MS. LOCKE-NOBLE:Objection, Your Honor.Irrelevant. THE COURT:Well, sustained. MR. YANES:I have nofurther questions. (12RT 2629-2630.) 260 B. General Legal Principles “The Eighth and Fourteenth Amendments require that the sentencer in a capital case not be precluded from considering any relevant mitigating evidence,that is, evidence regarding ‘any aspect of a defendant’s character or record and anyofthe circumstances ofthe offense that the defendant proffers as a basis for a sentence less than death.’” (People v. Frye (1998) 18 Cal.4th 894, 1015, overruled in other grounds in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22, quoting Lockett v. Ohio (1978) 438 US. - — 586, 604 [98 S.Ct. 2954, 57 L.Ed.2d 973].) “Nonetheless, the trial court still ‘“determines relevancy in the first instance and retains discretion to exclude evidence whose probative value is substantially outweighed by the probability that its admission will create substantial danger of confusing the issues or misleading the jury.””’” (People v. Williams (2006) 40 Cal.4th 287, 320, quoting People v. Cain, supra, 10 Cal.4th at p. 64.) “[R]elevant mitigating evidence is evidence whichtends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value. [Citations.]” (People v. Farley (2009) 46 Cal.4th 1053, 1128, internal quotation marks omitted.) The court “has the authority to exclude as irrelevant evidence that does not bear on the defendant’s character, record, or the circumstancesofthe offense. [Citation.]’ (People v. Souza (2012) 54 Cal.4th 90, 137.) C. The Trial Court Properly Excluded Irrelevant And Speculative Testimony Regarding The Result Of Any Investigation By the Department of Children’s Services Initially, appellant has failed to preserve his claim thatthe trial court erred in denying him an opportunity to present evidence regarding the result of any DCSinvestigation into the stabbing of his son. To preserve for appeal a claim concerning the exclusion of evidence, the proponent must revealto thetrial court “[t]he substance, purpose, and relevance of the 261 excluded evidence .. . by the questions asked, an offer ofproof, or by any other means[.|” (Evid. Code, § 354, subd.(a), italics added; Peoplev. Anderson, supra, 25 Cal.4th at p. 580; People v. Whitt (1990) 51 Cal.3d 620, 648.) Thetrial court admitted Officer Cloughesy’s testimony that he had contacted DCS.. Whenthetrial court thereafter stopped Officer Cloughesy from testifying about any potential DCS determination of what had occurred that day, defense counsel offered no argumentregarding the substance, purpose or relevance of the excluded evidence. He simply stated, “I have no further questions.” (12RT 2630.) Consequently, because appellant’s counsel never: 1) advised the trial court that he knew that the DCShad even conducted an investigation; 2) attempted to lay a foundation for its admission; or 3) even argued that the trial court was required to admit such evidence, appellant has failed to preserve his claim on appeal. (See People v. Lightsey (2012) 54 Cal.4th 668, 630-631 [‘‘we cannot hold the trial court abusedits discretion in rejecting a claim that was never made’’] citing People v. Valdez, supra, 32 Cal.4th at p. 109.) Indeed, appellant has failed to affirmatively demonstrate error from the record. (Nienhouse v. Superior Court (1996) 42 Cal.App.4th 83, 93- 94.) The source of appellant’s potential knowledge of any DCS investigation was, and remains, undeveloped and unknown. Similarly, no testimony was adducedto permit the court to determine whether the DCS had.even conducted an investigation, or what the outcomeofthat investigation was. Indeed, Officer Ponce specifically testified, “I [Officer Ponce] don’t think I ever found outthe truth.” (12RT 2614.) Further, where “the trial court’s ruling did not foreclose defendant from presenting a defense, but ‘merely rejected certain evidence concerning the defense[,]’” appellant cannot show thetrial court’s rulings infringed on his constitutional rights. (People v. Vines, supra, 51 Cal.4th at p. 869.) 262 Indeed, appellant could havealternatively called a DCS case worker as a witness, rather than try to elicit irrelevant hearsay testimony from Officer Ponce. Now,he asks this Court to reverse his judgment of death based on evidence that to this day does not even appearto exist. Quite simply, by failing to present any foundation, appellant has failed to preserve this claim on appeal, and the contention is therefore forfeited. (Evid. Code, §354; People v. Vines (2011) 51 Cal.4th 830, 868-869.) | In any event, assuming the instant claim is properly before this Court, defense counsel wholly failed to explain how any DCSinvestigation was relevant to the officer’s testimony. Trial counsel was simply trying to have the jury speculate, based solely on his asking of the question, that maybe DCSconducted an investigation, and that maybe DCS determined that he did not deliberately stab his son. Indeed, appellant argues that the “only reasonable inference from the record also was that the [DCS] lookedinto the incident (12RT 2629 [officer contacted child protective services], and that no action was taken by authorities as a result of the incident.””’ (AOB 427.) If that were true, then defense counsel could have submitted an offer of proof and called the DCS case worker as a witness. Even had appellant done so, testimony from a DCS case worker about the placement or non- placement of appellant’s son was hardly relevant to Officer Cloughesy’s criminal investigation. Thetrial court correctly exercised its discretion in sustaining the prosecutor’s objection to speculative testimony from Officer Cloughesy about any DCSinvestigation. (People v. Gonzales (2012) 54 ” Appellant’s entire claim is based on speculation. For example, without any support whatsoever, appellant suggests that “[i]nvestigating law enforcement and child protective services, however, at the time, most certainly reached a different conclusion.” (AOB 429.) Appellant’s fanciful assumptions do not constitute evidence before this Court. 263 Cal.4th 1234, 1260 [‘Speculative inferences are, of course, irrelevant’’]; see also People v. Cash, supra, 28 Cal.4th at p. 727.) Thus, there was no violation of appellant’s right to present mitigating evidence. Moreover, assumingthatthe trial court engaged in an Evidence Code section 352 analysis, appellant cannot showthetrial court abusedits discretion. As appellant never explained why the potential DCS investigation evidence was, or was not, time consuming, confusing and/or more probative than prejudicial, the trial court could have foundthat the potential for undue consumption of time or confusing the issues(i.e., lengthy testimony about a collateral DCS investigation) was substantial. However, relying on Evidence Code section 356, appellant argues that the “[e]xclusion of evidence ofthe officer’s knowledge aboutthe results of [the or any] investigation by the Department of Child Services violated the doctrine of completeness by permitting the prosecutor to introduce only a portion ofthe state’s evidence regarding the 1996 incident when [appellant’s] son was injured.” (AOB 426.) Evidence Code section 356 states, in relevant part: “Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party .....” “By its terms [Evidence Code] section 356 allows further inquiry into otherwise inadmissible matter only, (1) where it relates to the same subject, and (2) it is necessary to makethe already introduced conversation understood.” (People v. Gambos (1970) 5 Cal.App.3d 187, 192, italics original.) Thus, the courts have excluded the additional evidence “if not relevant to the conversation already in evidence.” (/d. at p. 193.) Here, evidence that DCS may have conducted an investigation and made somefinding wasnot admissible under Evidence Code section 356 becauseit was notrelevant, i.e., it was not necessary to make any already introduced conversation understood. Indeed, it was not part of any 264 “conversation”at all. Nor was it part of any “act” by Officer Cloughesy, any declaration, or any writing. Evidence Code section 356 was thus wholly inapplicable to the trial court’s ruling. Appellant also claims that “the testimony from the twoofficers created ‘a misleading impression’ that [appellant] was responsible for the injury to his son in 1996.” To the contrary, there was no disputethat appellant was “responsible” for the injury to his son, the only possible dispute was whether appellant was guilty of drunken gross negligence while carrying a concealed weapon during a domestic argument, or an intentional stabbing. Either scenario would have been admissible. Thus, appellant’s claim fails as lacking foundation, speculative, and contrary to the law. D. Any Error Was Harmless “Penalty phaseerror is prejudicial understate law if there is a ‘reasonable possibility’ the error affected the verdict.” (People v. Watson, supra, 43 Cal.4th at p. 693.) “This standardis identical in substance and effect to the federal harmless beyond a reasonable doubt standard enunciated in Chapmanv. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705]. [Citation.]” (bid.) Initially, the record here, as previously noted, does not show how Officer Cloughesy would have answeredthe question.’® It is an appellant’s duty to establish prejudice on appeal. (See People v. Jones (1964) 228 Cal.App.2d 74, 89.) Indeed, there is no reasonto believe that Officer Cloughesy’s response would have been any different from Officer Ponce’s response, i.e., that he did not know what happened. (See 12RT 2614.) ’8 Appellant claimsthat “[t]he officer knew theresults of the investigation and the agency determination.” (AOB 427.) Appellant | proffers absolutely no support for his assertion, nor has respondent found any in the record. 265 Nor can appellant show that the exclusion somehow constituted a miscarriage ofjustice. (Cal. Const., art. VI, § 13; Evid. Code, § 354; People v. Breverman (1998) 19 Cal.4th 142, 173.) Even without the evidence of any DCS investigation, as appellant concedes, the “only reasonable inference from the record also was that the [DCS] looked into the incident . . . and that no action wastaken by authorities as a result of the incident.” (12RT 2629.) Thus, as appellant concedes, the jury must have determined that appellant wasnot actually convicted of a crime. Indeed, appellant’s son indicated that the stabbing was an accident. (12RT 2598, 2619.) Furthermore, as previously noted, the evidence of appellant’s guilt was extremely strong in the instant case. (See ante, Arg. IV.C.) The properly admitted aggravating evidencein this case — specifically, the circumstances of the crime — was overwhelming, and far outweighed any mitigating evidence offered by appellant, as well as any mitigating evidence that was improperly excluded. Appellant and his cohorts savagely sexually assaulted, tortured and murdered Penny in an unusually cruel and painful manner. Shesustained 114 internal and external injuries and 11 fractured bones. (LORT 1964-1965.) Additional unspecified testimony from Officer Cloughesy leading to a conclusion that appellant had “accidentally” stabbed his son in a drunken stupor/domestic argument/rage while carrying a concealed weaponillegally would have madelittle, if any, difference. Moreover, as defense counsel mostlikely realized, exposing the full DCS investigation to the jury may very well have revealed additional damning evidence casting appellant in a negative light. Therefore, as there is no reasonable possibility that any error affected the verdict, appellant’s claim should berejected. 266 XIX. THE PROSECUTOR DID NOT USE INCONSISTENT THEORIES AT THE PENALTY PHASES OF THE SEPARATE TRIALS OF APPELLANT AND SEVERED CODEFENDANT KEVIN PEARSON; HOWEVER, THIS CLAIM IS NOT PROPERLY BEFORE THIS COURT BECAUSEIT RELIES ENTIRELY ON EVIDENCE OUTSIDE THE RECORD Appellant contends that “(t]he prosecutor’s use of inconsistent theories of leadership to exaggerate [his] role in the offenses and persuade the jury to select the death penalty violated [his] trial and due processrights under the Sixth and Fourteenth Amendments, and violated the Eighth Amendmentprohibition against cruel and usual punishment.” (AOB 433; see also AOB 432-460.) In fact, the prosecutor did not use inconsistent theories, but this claim is nor properly before this Court as it relies on evidence outside the record. Therefore, it is not in a proper posture for consideration by this Court and must be rejected. A. RelevantProceedings Thetrials of the three codefendants were severed because each had made confessions that could not be introduced against the other two. (2RT 50-51; see also People v. Aranda (1965) 63 Cal.2d 518, and Bruton v. United States (1968) 391 U.S. 123 [88 S.Ct. 1620, 20 L.Ed.2d 476].) Appellant wastried first Gudgment of death on January 23, 2003), followed by codefendant Pearson (case number $120750; judgmentof death on November 19, 2003) and then codefendant Armstrong (case number S$ 126560; judgment of death on July 16, 2004). | On August 12, 2009, in response to appellant’s successful superior court effort to augment the record with materials from codefendants Pearson’s and Armstrong’s trials, and in response to respondent’s motion seeking to vacate that augmentation, this Court issued the following order in this case: “Respondent's Motion to Vacate Superior Court's Order 267 Augmenting the Appellate Record with Reporter's Transcripts of Codefendant's Separate Trials, filed May 22, 2009, is granted. (See People v. Sakarias (2000) 22 Cal.4th 596, 635-636.) The guilt and penalty phase transcripts from the separate trials of Kevin Darnell Pearson and Jamelle Edward Armstrong are orderedstricken in their entirety from the record on appeal herein.” Thus, codefendants Pearson’s and Armstrong’s reporter’s transcripts were stricken from the record on appeal in the instantcase. Apparently notsatisfied with that ruling, on June 24, 2013, appellant filed a “Motion for Judicial Notice” seeking to accomplish precisely the samething, i.e., augment the record with “the court records in Peoplev. Pearson, including the transcripts.” (AOB 432, fn. 34.) Respondentfiled opposition to the motion for judicial notice on July 3, 2013. Appellant filed a reply to respondent’s opposition on July 15, 2013. Asofthe instantdate, this Court has not ruled on appellant’s motion. Thus,currently, the transcripts in People v. Pearson are not currently part of the instant record on appeal. Moreover, given this Court’s prior August 12, 2009 ruling, ante, it is highly unlikely that this Court will grant appellant’s motion for judicial notice. | B. The Prosecutor Did Not Use Inconsistent Theories At The Penalty Phases Of The Separate Trials Of Appellant And Codefendant Pearson; However, This Claim Is Not Properly Before This Court BecauseIt Relies Entirely On Evidence Outside The Record Appellant claimsthat, in the case at bar, “in the prosecutor’s words, - [appellant] was theleader. Butlater, in the penalty phase of Pearson’s trial, the same prosecutor argued Pearson, not [appellant], was the leader.” (AOB 438.) As previously noted, the instant claim is not properly before this Court because Pearson’s reporter’s transcripts are not part of the instant record on appeal. Consequently, the instant claim fails becauseit is largely 268 based on evidenceoutside the record. (See People v. Marlow (2004) 34 Cal.4th 131, 149; People v. Seaton, supra, 26 Cal.4th at p. 634.) Obviously, as appellant seems to acknowledge, respondent cannot fully address the merits of this claim without determining if the prosecutor uncovered additional evidence between the dates of appellant and Pearson’s trials. (AOB 456.) The only way to demonstrate that would be to present evidence outside the record on appeal. Appellant claimsthat,in this case, “there can be no reasonable inference that the prosecution’s inconsistent theories was due to the discovery of ‘new evidence.’” (AOB 457.) Appellant cannot possibly know that, since he has not deposed the prosecutor. He even concedesin his briefing that the prosecutor’s unanticipated discovery of new evidence wouldbe fatal to his claim. (See AOB 456-457.) Appellant even acknowledgesthat this Court’s decision in Sakarias “involved referee’s findings that the prosecution’s use of ‘divergent factual theories was intentional’ and other related findings.” (AOB 447.) Given that admission,it is difficult to understand precisely how appellant believes that the instant issue is in the proper posture for consideration by this Court. Moreover, appellant fails to seriously address the fact that, at the time of his conviction, the prosecutor’s theory painting him as the “leader” was not “inconsistent” with anything, because the other two codefendants had not been tried yet. Thus, as to this case, the prosecutor could not possibly have had a chance, or even a reason, to explain any inconsistency. Although a discussionof the merits of this claim is not appropriate dueto its procedural posture,” it does bear mentioning that individuals may ” Appellantcites a litany of largely worthless case law, as the majority of it is not binding on this Court, or consists of vague dicta. (See AOB441-458.) However, he acknowledges that the one case which is (continued...) 269 assumedifferent “leadership”roles in any given situation. Indeed, appellant may have been the “leader” for parts of the confrontation with Penny,i.e., the initial part, and Pearson may have beenthe “leader” for other parts of the confrontation,i.e., the latter part. Additionally, appellant may have beenthe leader administratively or for planning purposes by directing the others and by taking charge of the disposal of the incriminating evidence, while Pearson may have been the physical leader on the ground,1.e., raping Penny, beating her with the stake, impaling her, etc. Appellant’s simple argumentfails to recognize that there are many different potential leadershiproles, andit is entirely possible that both appellant and codefendant Pearson may have been “leaders”in these differing contexts. Thus the prosecutor’s alleged arguments in the two cases were hardly “inherently factually contradictory” or “irreconcilable.” (See AOB 452.) Finally, appellant fails to acknowledge that codefendant Armstrong wasnot alleged to be the leader, yet he was nevertheless also sentenced to death. This is strong evidence that appellant could not have been prejudiced by any inconsistent theory about the leadership roles of appellant and Pearson. Even if there were inconsistent arguments about leadership roles, given appellant’s savagery toward Penny,i.e., biting her at (...continued) actually binding on this Court was decided in respondent’s favor. (See Jacobs v. Scott (1995) 513 U.S. 1067 [115 S.Ct. 711, 130 L.Ed.2d 618]; see AOB 442.) He acknowledgesthat the federal circuit court cases that he relies on were “later reversed by the United States Supreme Court.” (AOB 443, fn. 37.) This, of course, renders them meaningless. In any event, federal circuit court cases are not binding on this Court. (People v. Beltran (2013) 56 Cal.4th 935, 953 [“lower federal decisional authority is neither binding nor controlling in matters involving state law”’].) 270 least twice and punching herdirectly in the face at least twice, appellant could not possibly have been prejudiced in any event. However, since the instant claim is not properly before this Court, it should be rejected on that proceduralbasis. XX.THERE WAS NO CUMULATIVE ERROR Appellant contends that the cumulative effect of errors during the guilt and penalty phases requires reversal of the death verdict. (AOB 461- 463.) _Respondent disagrees because there was only two minorerrors here, both involving the jury instructions on torture (including torture within CALJIC No. 3.30 [Arg. XI, ante] and improperly instructing the jury on torture as a predicate felony for first degree felony murder [Arg. XH, ante]) and, with respect to these minorerrors, appellant has failed to demonstrate prejudice. Moreover, whetherconsidered individually or for their cumulative effect, the alleged errors could not have affected the outcomeofthe trial. (See People v. Seaton , supra, 26 Cal.4th at pp. 675, 691-692; People v. Ochoa (2001) 26 Cal.4th 398, 447, 458, abrogated on another point in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14; People v. Catlin (2001) 26 Cal.4th 81, 180.) Even a capital defendantis entitled only to a fairtrial, not a perfect one. (People v. Cunningham, supra, 25 Cal.4th at p. 1009; People v. Box, supra, 23 Cal.4th at pp. 1214, 1219.) The record shows appellant received a fair trial. His claims of cumulative error should, therefore, be rejected. XXI. CALIFORNIA’S DEATH PENALTY STATUTEIS CONSTITUTIONAL AND FULLY CONGRUENT WITH THE STATE AND FEDERAL CONSTITUTIONS Appellant contends that “[m]any features of California’s capital sentencing scheme,alone or in combination with each other, violate the United States Constitution.” (AOB 464.) He further states that “[b]lecause 271 previous challenges to most of these features have been rejected by this Court, these arguments are presented in an abbreviated fashion for the purposeofalerting this Court to the nature of each componentclaim andits federal constitutional grounds.” (Ibid.; see People v.Schmeck (2005) 37 Cal.4th 240, 303-304.) Likewise, because this Court does not require extensive briefing on routine challenges to California’s capital punishment scheme, respondent will present abbreviated arguments with respect to each of appellant’s 13 claims. Appellant also asks this Court to “consider the defects in the California scheme, ‘in context’ and collectively, to hold that the cumulative operation of the schemeis unconstitutional.” (AOB 466.) However, because there are no “defects” in California’s death penalty statute, i.e., no error, the cumulative operation of the schemeis therefore constitutional. A. The California Death Penalty Statute Is Not Impermissibly Broad Appellantfirst argues that California’s death penalty statute violates the Constitution because it is impermissibly broad. (AOB 466-467.) Respondentdisagrees. Appellant argues that “nearly every murder in California permits a prosecutor to seek the death penalty.” (AOB 467.) The defendantin People v. Crittenden, supra, 9 Cal.4th 83, made a similar argument: “In particular, defendant contendsthat the categories of murder subjecting a defendantto eligibility for the death penalty have been expanded to the extent that the death penalty law does not perform the mandated narrowing function. This development, defendant asserts, is reflective of an original unconstitutional purpose, harbored by the proponents ofthe law, to apply the death penaltyin every case of murder.” (/d. at p. 154.) This Court held in Crittenden, “[e]ven taking into account this statutory expansion, 272 however, we believe the death-eligibility component of California’s capital punishmentlaw does not exceed constitutional bounds.” (/d. at p. 156.) Similarly, this Court has repeatedly held, “California’s death penalty law, which permits capital punishment for many first degree murders, including unintentional felony murders, is not overly broad. [Citations.]” (People v. Elliott, supra, 53 Cal.4th at p. 593.) Appellant provides no reason for this Court to depart from its prior holding. B. The Categories Of Special Circumstances Described In Section 190.2 Effectively And Meaningfully Narrow The Class Of First Degree Murderers Who May Receive The Death Penalty Appellant contends that “California’s capital sentencing scheme does not meaningfully narrow the pool of murdererseligible for the death penalty.” (AOB 468-469.) Appellant’s claim lacks merit. This Court has consistently rejected the claim that the California death penalty statute fails to narrow,in a constitutionally acceptable manner, the class of personseligible for the death penalty. “California’s statutory special circumstances (§ 190.2, subds. (a)(1)-(22)) are not so numerousor inclusive as to fail to narrow the class of murderers eligible for the death penalty. [Citation.]” (People v. Yeoman, supra, 31 Cal.4th at p. 165.) “The special circumstanceslisted in section 190.2 adequately narrow the class of murders for which the death penalty may be imposed. [Citation.]” (People v. Snow (2003) 30 Cal.4th 43, 125.) “The statute (§ 190.2) does not impose overbroad death eligibility, either because of the sheer numberand scope of special circumstances which define a capital murder, or becausethe statute permits capital exposure for an unintentional felony murder. [Citations.]” (People v. Anderson, supra, 25 Cal.4th at p. 601; see, e.g., People v. Marks, supra, 31 Cal.4th at p. 237; People v. Box, supra, 23 Cal.4th at p. 1217; People v. Ochoa, supra, 19 Cal.4th at p. 479; see also People v. Bacigalupo (1993) 6 Cal.4th 457, 468.) | 273 C. Section 190.3, Subdivision (a), As Applied Does Not | Allow For Arbitrary And Capricious Imposition Of Death Appellant contends that California’s death penalty statute is invalid because section 190.3, subdivision (a), as applied, allows arbitrary and capricious imposition of death in violation of various rights under the federal Constitution. (AOB 469-472.) Respondentdisagrees. This Court has repeatedly rejected this claim. (People v. Brady (2010) 50 Cal.4th 547, 590 [“Section 190.3, factor (a), whether considered on its face or as applied, does not allow for arbitrary and capricious imposition of the death penalty’’]; People v. Hovarter (2008) 44 Cal.4th 983, 1029; People v. Brown (2004) 33 Cal.4th 382, 401.) Appellant offers no reason for this Court to depart from its prior holdings. (See People v. Brown (2004) 33 Cal.4th 382, 401.) D. CALJIC No. 8.88’s Use Of “So Substantial” Language To Describe Aggravating Circumstances Warranting A Verdict Of Death Is Not Impermissibly Vague Appellant argues that the trial court’s use of CALJIC No.8.88 violated his constitutional rights because it creates a standard that is “vague and directionless” by the use ofits “so substantial” phrase, which creates a “risk of arbitrary and capricious sentencing.” (AOB 472-473.) To the extent appellant did not request the specific modifications alleged here, he has waivedhis claim on appeal. (People v. Daya (1994) 29 Cal.App.4th 697, 714 [“defendantis not entitled to remain muteattrial and scream foul on appeal for the court’s failure to expand, modify, and refine standardized jury instructions’’].) In any event, as appellant recognizes, CALJIC No. 8.88 has been found to be constitutional (People v. Moon (2005) 37 Cal.4th 1, 41-42; People v. Crew (2003) 31 Cal.4th 822, 858), and this Court has rejected appellant’s challenge to this standard instruction (People v. Breaux (1991) 1 Cal.4th 281, 316, fn. 14; People v. Ochoa, supra, 26 Cal.4th at p. 274 452, abrogated on another point by People v. Prieto, supra, 30 Cal.4th at p. 263, fn. 14). (See AOB 473.) Indeed, the language of CALJIC No. 8.88 is not unconstitutionally ~ vague; it adequately conveys the weighing process andis consistent with section 190.3. (People v. Chatman (2006) 38 Cal.4th 344, 409; People v. Smith, supra, 35 Cal.4th at p. 370.) The “so substantial” language does not create a presumption for death or a risk of arbitrary and capricious | sentencing. (People v. Salcido (2008) 44 Cal.4th 93, 163; People v. Maury, supra, 30 Cal.4th at p. 440.) Rather, it properly admonishesthe jury “to determine whether the balance of aggravation and mitigation makes death the appropriate penalty.” (People v. Arias (1996) 13 Cal.4th 92, 171.) “The statutory language referring to aggravating and mitigating circumstances is not vague or ambiguous. [Citations.]” (People v. Salcido, _ supra, 44 Cal.4th at p. 164.) Appellant has not provided any reason for this Court to depart from its past decisions. Accordingly, his claim must be rejected. E. The Useof Restrictive Adjectives in Mitigating Factors Is Proper Appellant argues that the use of adjectives such as “extreme” and “substantial in the list of potential mitigating factors acted as a barrier to the consideration ofmitigation in violation of Fifth, Sixth, Eighth, and Fourteenth Amendments. (AOB 473.) Respondent disagrees. “Including in thelist of potential mitigating factors adjectives such as ‘extreme’ (§ 190.3, factors (d), (g)) and ‘substantial’ (7d. factor (g)) does not erect an impermissible barrier to the jury’s consideration of mitigating evidence. [Citation.]” (People v. Valdez (2012) 55 Cal.4th 82, 180; People v. Fuiava (2012) 53 Cal.4th 622, 732; People v. Elliott, supra, 53 Cal.4th at p. 594; People v. Letner, supra, 50 Cal.4th at p. 208; People v. Avila (2006) 38 Cal.4th 491, 614.) 275 F. The Trial Court Was Not Required to Instruct that Statutory Mitigating Factors Were Relevant Solely As Potential Mitigators Appellant contendsthat the trial court’s failureto instruct that statutory mitigating factors were relevant solely as potential mitigators precludeda fair, reliable, and evenhanded administration of the capital sanction. (AOB 474-476.) Respondent disagrees. “A trial court is not required to delete inapplicable sentencing factors or to instruct that statutory mitigating factors arerelevant solely as potential mitigators. [Citation.]” (People v. Streeter (2012) 54 Cal.4th 205, 268; People v. Wilson (2008) 43 Cal.4th 1, 32; see also People v. Morrison (2004) 34 Cal 4th 698, 730 [“‘instruction to the jury to consider ‘whether or not’ certain mitigating factors were present did not impermissibly invite the jury to aggravate the sentence uponthebasis of nonexistentor irrational aggravating factors’’] .) G. The Jury Is Not Required to Find Beyond a Reasonable Doubt That Aggravating Factors Exist, That They Outweigh the Mitigating Factors, or That Death Is the Appropriate Sentence Appellant argues that the jury must be required to find beyond a reasonable doubtthat aggravating factors exist, that the aggravating factors outweigh the mitigating factors, and that death is the appropriate penalty. (AOB 477-480.) As this Court explained in People v. Demetrulias, supra, 39 Cal.4th 1, California’s death penalty statute does not require instruction on the burden ofproofat the penalty phase and “‘is not invalid for failing to require .. . (2) proof of all aggravating factors beyond a reasonable doubt, (3) findings that aggravation outweighs mitigation beyond a reasonable doubt, or (4) findings that death is the appropriate penalty beyond a reasonable doubt.’ [Citation.]” (/d. at p. 43; accord People v. Rogers, supra, 39 Cal.4th at p. 893; People v. Blair, supra, 36 Cal.4th at p. 753; 276 People v. Davis, supra, 36 Cal.4th at p. 571; People v. Brown, supra, 33 Cal.4th at p. 402.) Unanimity is required only as to the appropriate penalty. (People v. Stanley (2006) 39 Cal.4th 913, 963; People v. Anderson, supra, 25 Cal.4th at p. 590.) Appellant contends that Cunningham v. California (2007) 549 US. 270 [127 S.Ct. 856, 166 L.Ed.2d 856], Blakely v. Washington, supra, 542 US. at 296, and Ring v. Arizona, supra, 536 U.S. 584, require that the aggravating factors be found beyond a reasonable doubt by a unanimous jury. (AOB 477-480.) This claim should be rejected. Ring is inapplicable to the penalty phase of California’s capital murdertrials because “once a defendant has been convicted of first degree murder and one or more special circumstances have been found true under California’s death penalty statute, the statutory maximum penalty is already set at death. [Citation.]” (People v. Stanley, supra, 39 Cal.4th at p. 964.) Thus, “‘[A]ny finding of aggravating factors during the penalty phase does not “increase the penalty for a crime beyondthe prescribed statutory maximum” [citation], [and] Ring imposes no newconstitutional requirements on California’s penalty phase proceedings.’ [Citations.]” (/bid., internal brackets omitted.) Appellant also argues that the jury must be required to find beyond a reasonable doubt that aggravating factors outweigh the mitigating factors. (AOB 478-479.) As this Court, however, explained,“neither the cruel and unusual punishment clause of the Eighth Amendment, nor the due process clause of the Fourteenth Amendment, requires a jury to find beyond a reasonable doubt that aggravating circumstancesexist or that aggravating circumstances outweigh mitigating circumstancesor that death is the appropriate penalty. [Citations.]” (People v. Blair, supra, 36 Cal.4th at p. 753.) Furthermore, “the trial court need not and should notinstruct the jury as to any burden ofproofor persuasion at the penalty phase. [Citations.]” 277 (bid.; accord People v. Demetrulias, supra, 39 Cal.4th at p. 43; People v. Gray, supra, 37 Cal.4th at p. 236; People v. Wilson (2005) 36 Cal.4th 309, 360.) | Asthis Court stated in People v. Hovarter, supra, 44 Cal.4th 983: That “twenty-five states require that any factors relied on to impose death in a penalty phase must be proven beyond a reasonable doubt,” as defendant contends, does not erode our confidence in the constitutionality of this state’s death penalty law. “A capital sentencer need notbe instructed how to weigh any particular fact in the capital sentencing decision.” [Citation.] (id. at p. 1029, internal brackets omitted.) Accordingly, appellant’s claim should be rejected. (See People v. Loker, supra, 44 Cal.4th at p. 755.) H. The Jury Is Not Required To Unanimously Agree On Aggravating Factors Appellant contendsthat his rights under the Sixth, Eighth, and Fourteenth Amendments are violated because California’s capital sentencing schemedoes not require the jury to agree unanimously on aggravating factors. (AOB 480-482.) Respondent disagrees. This Court has repeatedly held that neither the federal nor the state Constitution requires the jury to agree unanimously as to aggravating factors. (People v. Famalaro (2011) 52 Cal.4th 1, 44; People v. Osband, supra, 13 Cal.4th at p. 710; see People v. Valdez, supra, 55 Cal.4th at p. 179 [“The trial court need not instruct jurors that . . . their findings regarding aggravating factors must be unanimous”].) Nor do these decisions have to be reexaminedin light of Blakely v. Washington, supra, 542 USS. at page 296, and Cunningham v. California, supra, 549 US.at page 270, because this Court has held that these recent decisions in the United States Supreme Court “interpreting the Sixth Amendment’sjury trial guarantee [citations] have not altered our conclusionsin this regard. 278 [Citations.]” (People v. Whisenhunt, supra, 44 Cal.4th at p. 227; see People v. Bivert (2011) 52 Cal.4th 96, 124; People v. Stevens, supra, 41 Cal.4th at p. 212.) Appellant offers no reason for this Court to depart from its prior holding. (See People v. Taylor (1990) 52 Cal.3d 719, 749 (“unanimity with respect to aggravating factors is not required by statute or as a constitutional procedural safeguard’’].) I. The Trial Court Does Not Have The Duty To Instruct On Any Burden Of Proof At The Penalty Phase Appellant arguesthat the trial court’s failure to instruct the jury on any burden of proofin the penalty phase violated his rights under the federal Constitution. (AOB 482-483.) Respondent disagrees. Indeed, as this Court in People v. Collins (2010) 49 Cal.4th 175, stated: . It is settled that “the trial court need not and should not instruct the jury as to any burden of proof or persuasion at the penalty phase.” [Citation.] “The death penalty law is not unconstitutional for failing to impose a burden ofproof- whether beyond a reasonable doubt or by a preponderanceofthe evidence- as to the existence of aggravating circumstances, the greater weight of aggravating circumstances over mitigating circumstances, or the appropriateness of a death sentence.” [Citation.] (id. at p. 261, italics original.) As noted above, this Court has repeatedly rejected claims identical to appellant’s claim regarding a burden ofproofat the penalty phase. (People v. Collins, supra, 49 Cal.4th at p. 261; People v. Redd (2000) 48 Cal.4th 691,757; People v. Carrington (2009) 47 Cal.4th 145, 200.) Appellant offers no reason for this Court to depart from its prior holding. (See People v. Lenart (2004) 32 Cal.4th 1107, 1136-1137; see also People v. Arias, supra, 13 Cal.4th at p. 190.) 279 J. There Is No Requirement Or Necessity For The Instructions To Inform The Jurors That If They Determined That Mitigation Outweighed Aggravation, They Were Required To Return A Sentence Of Life Without The Possibility Of Parole Appellant contends that, because section 190.3 directs a jury to impose a sentenceoflife imprisonment without parole when the mitigating circumstances outweigh the aggravating circumstances, CALJIC No.8.88 must inform the jury accordingly, rather than just informing the jurors that of the circumstances that permit a rendition of a death verdict, i.e., when the aggravating circumstances outweighthe mitigating circumstances . (AOB 483-484.) Respondentdisagrees. This Court has repeatedly rejected this claim. (People v. Duncan, supra, 53 Cal.3d at p. 978; see also People v. Kipp (1998) 18 Cal.4th 349, 381 [We have determinedthat the trial court need not expressly instruct the jury that a sentence oflife imprisonment without parole is mandatory if the aggravating circumstances do not outweigh those in mitigation’’].) Appellant offers no reason for this Court to depart from its prior holding. K. The Jury Is Not Required To Make Written Findings Of Aggravating Factors Appellant argues that the jury must make written findings of aggravating factors. (AOB 485-488.) Respondent disagrees. The jury is not required to make written findings regarding aggravating factors. (People v. Stevens, supra, 41 Cal.4th at p. 212; People v. Rogers, supra, 39 | Cal.4th at p. 893; People v. Blair, supra, 36 Cal.4th at p. 754; People v. Davis, supra, 36 Cal.4th at p. 571; People v. Griffin, supra, 33 Cal.4th at pp. 593-594; People v. Rodriguez (1986) 42 Cal.3d 730, 777-778.) This Court has repeatedly held that the absence of written findings by the sentencer does not render the 1978 death penalty scheme unconstitutional. 280 (People v. Fauber (1992) 2 Cal.4th 792, 859; People v. Rogers, supra, 39 Cal.4th at p. 893.) L. Intercase Proportionality Review Is Not Required Appellant contends that intercase proportionality review is required in capital sentencing. (AOB 488-490.) Respondent disagrees. “Comparative intercase proportionality review bythe trial or appellate courts is not constitutionally required. [Citations.]” (People v. Snow, supra, 30 Cal.4th at p. 126; accord People v. Stevens, supra, 41 Cal.4th at p. 212; Peoplev. Demetrulias, supra, 39 Cal.4th at p. 44; People v. Gray, supra, 37 Cal.4th at p. 237; People v. Blair, supra, 36 Cal.4th at p. 753; People v. Stitely, supra, 35 Cal.4th at p. 574.) M. The Use Of The Death Penalty Does Not Violate International Law And/Or The Constitution Appellant contendsthat use of the death penalty as a regular form of punishmentviolates international law and the Eighth and Fourteenth Amendments. (AOB 490-492.) Respondent disagrees. As this Court stated in People v. Hillhouse, supra, 27 Cal.4th at page 511, “had defendant shown prejudicial error under domestic law, we would haveset aside the judgmenton that basis, without recourse to international law. [{] ... International law does not prohibit a sentence of death rendered in accordance with state and federal constitutional and statutory requirements. [Citations.]” (See also People v. Foster (2010) 50 Cal.4th 1301, 1368; People v. Loker, supra, 44 Cal.4th at p. 756; People v. Harris (2008) 43 Cal.4th 1269, 1323; People v. Vieira (2005) 35 Cal.4th 264, 305.) 281 CONCLUSION For the stated reasons, respondent respectfully asks that the judgment be affirmed. Dated: October 29, 2013 Respectfully submitted, KAMALAD. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General LANCE E. WINTERS Senior Assistant Attorney General KEITH H. BORJON Supervising Deputy Attorney General JOSEPH P. LEE Deputy Attorney General Deputy Attorney General Attorneysfor Plaintiffand Respondent LA2003XS0001 61114661.doc 282 CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S BRIEFuses a 13-point Times New Romanfont and contains 82,006 words. Dated: October 29, 2013 KAMALAD. HARRIS Attorney General of California For Micmrel Wise MICHAEL J. WISE Deputy Attorney General ~ Attorneysfor Plaintiff and Respondent DECLARATION OFSERVICE BY U.S. MAIL Case Name: People v. Warren Justin Hardy No.: §113421 I declare: lam employed in the Office of the Attorney General, which is the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On October 29, 2013, I served the attached RESPONDENT?’S BRIEFbyplacing a true copy thereof enclosed ’in a sealed envelope in the internal mail collection system at the Office of the Attorney General at 300 South Spring Street, Suite 1702, Los Angeles, CA 90013, addressed as follows: Susan K. Shaler Honorable John David Lord, Judge Attorney at Law Los Angeles County Superior Court Professional Law Corp. Governor George Deukmejian Courthouse 991 LomasSanta Fe Drive, Suite C, #112 275 Magnolia Avenue Solana Beach, CA 92075 Long Beach, CA 90802 Aundre M. Herron Maria Elena Arvizo-Knight Senior Staff Attorney Death Penalty Appeals Clerk California Appellate Project (S.F.) Los Angeles County Superior Court 101 Second Street, 6th Floor Criminal Appeals Unit San Francisco, CA 94105 210 West Temple Street, Room M-3 Los Angeles, CA 90012 Corene Locke-Noble Deputy District Attorney Governor’s Office Los Angeles County Attn: Legal Affairs Secretary District Attorney's Office State Capitol, First Floor 210 West Temple Street, 18th Floor Sacramento, CA 95814 Los Angeles, CA 90012 ‘I declare under penalty of perjury underthe lawsof the State of California the foregoingis true and correct and that this declaration was executedon October 29, 2013, at Los Angeles, California. J. Villegas os Llyr__= Declarant Signature LA2003XS0001 61119840.doc