PEOPLE v. ANDERSON

Respondent’s Brief

Cal.March 25, 2015

SUPREME COURT COPY In the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, | CAPITAL CASE Plaintiff and Respondent, Case No. $138474 Vv. ERIC ANDERSON, Defendant and Appellant. SUPREMECOURT San Diego County Superior Court Case MAR 25 2015 No. SCE230405 The Honorable Lantz Lewis, Judge Frank A. McGuire Clerk RESPONDENT’S BRIEF Deputy KAMALA D. HARRIS Attorney General of California JULIE L. GARLAND Senior Assistant Attorney General HOLy D. WILKENS Supervising Deputy Attorney General THEODORE M. CROPLEY Deputy Attorney General - MICHAEL T. MURPHY Deputy Attorney General — State Bar No. 178384 110 West A Street, Suite 1100 San Diego,CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 645-3081 Fax: (619) 645-2271 Email: Mike.Murphy@doj.ca.gov Attorneysfor Plaintiffand Respondent DEATHPENALTY ‘TABLE OF CONTENTS Page TntrOduction..........ssssssssssscesesceceseenssesneesesessecsessestesesausansoesenessssseaeeeesseessnenees 1 Statement of the Case.............00asaescatesssesenenesesseeesseseseseseereeneesseaneacoessestenas 1 Statement OfFacts .........ccscssccsccssessssescssssccsssesesesssesesesessessasenesussesesusevasseesas 5 I. Summary of Facts Relating to Guilt...eeccseeseesceesesceeeesesetseneeseesees 5 A. Prosecution Case........cccsee.sostseeaeeseaneseesesseenseeanennetnens 5 1. Background information about Anderson and his codefendants............cccsssssscssseseesseene 5 2. Anderson burglarizes home of Bell family on January 8, 2003 ............cccesseseseeee 7 3. Anderson burglarizes home of Dolan family on April 9, 2003 00... cescesseestseteereeees 8 4, Anderson conspires to commit burglary and robbery, and on April 14, 2003, murders Steven Bruckerin the course of that CONSPILACY..........eeceecceeeescseseeneesenseseeseees 10 5. Anderson admits involvement in the murder to a roommate...betencesseesees 19 6. Anderson changeshis appearance,flees to Oregon, gives a false nameto police, and plots his escape from jail ......eee 20 7. Whilein jail awaiting trial, Anderson ' attacks a witness whotestified against him at the preliminary: examination............... 23 B. Defensecase...........ssssesssusesessecssssessecersscsscesasessnvesnenes 23 II. Summary ofFacts Relating to Penalty...secteseseeecessseereceeenseesseevenseateeees 25 A. Prosecution Case..........cescccsssessscseceeseesetssseesssseeses 25 Ll. Anderson shotat a motorist because she “ageravated” him with her driving................ 25 2. Anderson was convicted ofpossessing a stolen car and three separate residential burglaries.............4 setensensecsaneenscessensesessenssess 26 (continued) Page B. Defense Case ........cccsccssessesssscesssessersenesesanssesettesenaeeens 27 ALQUMENE.....ceccsessssssessssssssssesssesssesseosssssteseceesessessesueesaeanesussessussanssecsessascese 28 I. Thetrial court properly refused to sever thetrial of Anderson and Lee because their defenses were not antagonistic and there was substantial independent evidence ofAnderson’s guilt ..........cececssseescesesesseasssreceesers 28 A. Trial court proceedingS..........:sssscessesecssesescsesseescees 28 B. Standard Ofreview .......::.sccssssssessessessesesssssessesssvecsaceee 31 C. Governing laW 00... eeecssssessscsscseseteseecereeseeesseeseees 31 D Thetrial court properly refused to order separate trials ofAnderson and Lee...........cssscceeeee 32 E. Evenifthe trial court abusedits discretion - under state law by denying the motion to sever, the error was harmless............:c:cssessssessesseeees veaeeeeeeeee 35 _F. The jointtrial did not result in a grossly unfair trial that requires reversal under the due process clause of the federal constitution ..............s:cesceseesees 39 Il. Thetrial court properly refused to sever the burglary charges from the murderand conspiracy charges because joinder was authorized by section 954, there was cross-admissibility of evidence, and Anderson failed to make a clear showing thathe wouldbe prejudiced by a joint trial0...cesses cssessecsessssesecesscsereeuee 4] A. Trial court proceedingS .......cccccesseeeseensecsstesneeenses Al B Standard Ofreview .........cccssesceessssesctssseseeessesesceseaees 42 C. GOVeMMING LAW 000... eeceeseelecsesssseceeecssesersseessessseserenes 43 D Thetrial court properly refused to order a separatetrial for the burglary charges................0000 44 1. Joinder was authorized under Section O54 esesessessscssessssevecsestsessesceseesseesssstseseveesesnns 44 TABLE OF CONTENTS il UY. IV. (continued) Page 2. Thetrial court properly concluded that joinder would not prejudice Anderson.......... 45 E. Evenifthe trial court abused its discretion | under state law by denying the motion to sever, the error was harmless.............:scssccecsssecceesseesseneenees 50 Thejoint trial did not result in a grossly unfair trial that requires reversal under the due process clause of the federal constitution ......... ee eeeeteeeeeees 51 The trial court properly exercised its discretion to allow evidence ofAnderson’s flight from San Diego, and his plans to escape from jail, because it was relevant to show consciousness Of QUilt............csssssersrecseees 52 A. Trial court proceedings ........escecsecscesreeeseessneenees 52 B. Standard of revieW.....sccsecsssssssesssssesessessssssssssssesseens 54 C, Thetrial court properly exercised its discretion by admitting evidence that was relevant to establish Anderson’s consciousnessofguilt ............ 55 D. Anyerrorin the admission of evidence was harmless during the guilt phase ofthe trial............... 59 E. Byfailing to object or to request a limiting TABLE OF CONTENTS instruction attrial, Anderson forfeited any claim _ that evidence ofhis flight from California and plans to escape from jail was erroneously admitted at the penalty phase; any error was HArMless .......csscesssecssssssssiecesseeceeseseeceseeesessessaseressess 61 Thetrial court properly allowed Handshoetotestify because his plea agreement was not unduly coercive.......... 63 A. Trial court proceedings..............c:ssssccsssssseseersesseeees63 B. Standard Of review.........scssccscccececssecesecetseesscsneneeseees 65 C. Governing lawoceesereeeessetenesenseesesecesenaneses 65 ill VI. A, B. C. D TABLE OF CONTENTS (continued) Page D. _.Handshoe’s testimony was properly admitted because his plea agreementrequired only that . he testify truthfully ...........siseeeeeneseaeeseeseaseeaeeeneenseses 67 E, EvenifHandshoe’stestimony wasthe result of a coercive plea agreement, no due process violation resulted from its admission because the prosecution’s case did not depend substantially on that tESTHMONY «.....-seeceeceeeeeseseessenss+ 69 | F. Anyerror was harmless.........:.:cccccsssseeeseeeees J.cesesseees 71 Thetrial court properly excludedthe testimony of a defense witness because the proffered testimony was TELEVANE «2...ee eecesseseeeeesssesteeseeseesa aseeceseccseuescerseesnseaesneeasens 72 Trial court proceedingS..........c:csccccscsscscessesseseceesceees 73 B. Standard OfreVICW ........ccsssssssscesscsccessesssrssesssescareees 74 C. Governing 1aW .........scscsssssesessesssesessssecscessssssescsterses 74 D ‘The trial court properly excluded irrelevant CVIGENCE «0... ce esccsessetssscsreesssstsccesseeeceenesne rssasconceasonenaes 74 E, Any error washarmless........cessssessesseeesecseeieseene 2D. Thetrial court properly refused to order that Peretti provide a urine sample for drug testing because there wasno probable cause to believe she was underthe influence of a drug while testifying ............---ssssesseesesssesees 76 A. Trial court proceedings............... saceeeeseneastesneceseeataess 77 Standard Ofreview ..........scsssesessccsessesenscssessssesseceencee 77 GoOVEMING LAW osceecessesssssecesccensessessessetscessstsensceas 77 ‘Thetrial court properly refused to order drug testing because there was no probable cause to believe Peretti was testifying while under the influence Of a GrUG.......ccseseseesesscessscsesessseserseetareees 79 E. Any error was harmless ..........csscsccessessseeesseessessesecess 79 iv VIL. VII. IX. TABLE OF CONTENTS (continued) Page Thetrial court properly allowed the jury to hear the - sound ofAnderson’s Ford Bronco because the sound wasrelevant circumstantial evidence of Anderson’s Participation in Che CLIMES 1...cccessseseserestscnseeeeseereeeeee 81 A. Trial court proceedingS........ ce eceesseesesenseeceeenreents 81 B, Standard ofreview .....cscsssssssesesessesesseesesesseseaverseeses BS C. — Thetrial court properly exercised its discretion by allowing the jury to hear the sound of Anderson’s Bronco because it was relevant to establishing the identity of the murderer.................. 84 D. Any error was harmless ...........:scssesssscsssssssessseseenees 88 - Thetrial court properly allowed the prosecutionto impeach adefense witness with evidence of his prior felony convictions because they were relevantto his Credibility oo... cccccsctsssesseccesesssesesssesssessesenccsecseseseresessensetsas 89 A. Trial court proceedings ...........sessccssctseeesssessenssesees OF B. Standard Ofreview .......ssssssscscereceecescrsssssesseeesees 90 C. The trial court properly allowed the prosecution .. to impeach Stevens with his prior felony convictions because they were relevant to his credibility and where unlikely to cause any undue prejudice to Anderson..........cecessceeccetseeerees 91 D. Any error was harmless................:::-sscseseeeeseeeesnessees 95 Thetrial court properly admitted evidence of a hearsay statement pursuant to the exception to the hearsay rule _ for prior inconsistent statements.............sasaseseeseeeseseoseeetsetees 96 A. Trial court proceedingS .....ciseeseeeeeeceteereeeeees 97 B. Anderson forfeited this claim by failing to raise it in the trial COUT 0...eeeececeeeceneeetteeeaeertetenseees 99 Cc. Standard ofreview seveevsseseees deeevsscccecscosaccucececsccsvsecens 100 XI. Xm, OA. TABLE OF CONTENTS (continued) Page ~D. Thetrial court properly allowed investigator bakerto testify to Northcutt’s statements . regarding what Anderson hadsaid to him because an exception to the hearsay rule applied _ to both levels of hearsay ...........ccccscscssesesceeesseeees 101 E. Any error was harmless..............cssccsssssssseeescceeccssees 106 Thetrial court properly allowedevidence, over Anderson’s hearsay objection, that Anderson was identified by law enforcement as a suspectthree days after the murder because the evidence did not amount tO M€ArSAy oon.eeeeeeessessesetseceseecssssessessesasescercsassesssesereceeaes 108 A. _ Trial court proceedings................. soeeesoeenetsecereentents 108 B. Standard ofreview ..sscsscccsssesecsecsceesssseesenHe eeaeeetsnenees 109 C. Thetrial court properly allowed Detective Goldberg to testify that Anderson wasidentified as a suspect on April 17, 2003, because that evidence was not offered to prove the truth of any out-of-court statement...........eeeseesesueeneeaes beseeense 110° D. — Anyerror was harmless...............:ccsccsssssescseececeseese 111 Cumulative effect of evidentiary errors...................seveteeaes 112 The trial court properly refused to instruct thejury that Peretti and Paulson were accomplices as a matter of law because that determination depended on material facts that were in dispute ..........c:cccccsssssseseseerecceensSeoseeseesees 113 Trial court proceedingS ..........ccccescsesesseesesvesees vesseee 113 B, Standard Of reViCW.......sesesssecteccssessssseessesssecscesneees 114 C. Governing law 0... eeeessesssssesessessessessssesensessesesecseees 114 D Thetrial court properly refused to instruct the jury thatPeretti and Paulson were accomplice as a matter of law because the evidence permitted different conclusions on that issue......... 115 vi E. TABLE OFCONTENTS (continued) Page Any error was harmless because the evidence sufficiently corroborated Peretti’s and Paulson’s TESTIMONY...cece eeeeeeeceeceeececcenceneecesceeecessssesenseenenas 118 XII. The evidence sufficiently corroborated the testimony Of Peretti and Paulson 0...ceceeseesesseeseeseesseereerteeeees 119 Thetrial court properly instructed the jury on the law of accessory liability because it was relevant to issues XIV. XV. XVI. raised by the evidence...........cscessessssseseeseessneeeeaes Saeventenees 120 A. Trial court proceedings .......cc cessessesseereesessretereees 120 B Standard Ofreview ........c.scessssssessesseesseensesees sesseseeees 122 C. Governing AW ou. .eeesseesseesesseessessessterstcseeteeetenenesensens 122 D The trial court properly instructed the jury on E. the law of accessory liability because it was relevant to establish that Peretti’s grant of immunity did not necessarily mean that she was an accomplice to the crimes charged.............ce 123 Any error was harmless......0...scsceseeeeeeeeeeeeeeteessevere 124 Thetrial court properly instructed the jury that it must decide the case based only on the evidence formally —B. presented during thetrial proceedingS .........ccseseeeeeeens 125 A. Trial court proceedingS........c..eeeecesscceeseeceneeneees 125 Standard Of review ..sscccsssessssssessseeesevcsseesesenseseeeen 129 C. Thetrial court properly responded to Juror Number 12’s question... eseseseseesseeeeeeeeereeeeees 129 D. Any error Was harmless ............eeesesseseeeeseteseeeeees 131 The record does not support Anderson’s claim that the prosecutor committed misconduct duringthetrial............ 133 A. Trial court proceedings...........csecsccseessccenseseestersseess 133 B. Standard Of review ..........csscsesscesseeeetessseseesesessecees 137 C. The prosecutor behaved appropriately in each of the instances cited by Anderson ..........cesses: 137 Vii TABLE OF CONTENTS (continued) Page 1. The prosecutor did not inappropriately vouch for his CaS@ .0........ceeescssessscsscescseereees 138 2. Theprosecutor did not mischaracterize the CVIdeNCE oo... eeseeseeetsaseseessessscesseesears 140 3, The prosecutor did not ask argumentative QUESTIONS.......cseccessseseseees 142 D. Any error was harmless..........ccccccssssssssssssssssscssesens 143 XVII. Thetrial court did noterrby failing to conductan inquiry into the impartiality of the members of Anderson’s jury after there were published accounts of the verdict in Huhn’s case........ccccsessessssssesssesseseesessesessvens 143 A, Trial court proceedingS.........:scccccssssessssssstssesceseses 144 B. Standard Ofreview .......csssesscsssscssesssrssscensesesssseeeers 147 C, The trial court exercisedsound discretion in ‘dealing with the verdict in the Huhn case and the publicity that followed...esseessesssseseeseensees 147 1, Thetrial court took appropriate steps to ensure the impartiality of the jury ............... 148 2. Thetrial court did not abuseits discretion by not asking the jurors if they had been exposed to media accounts of the Verdict ......ccseeessessesseeeens ssesnsansensatenes 150 D. Anyerror was HArMess.......essseeeeeeessereeeeeees seeeanessees 151 XVIII. The record does not support Anderson’s claim ofjuror MISCONCUCE 0.0... .ceceeessessssesessessscssevsscsscsesscsaveucssasavsetsesecsceees 152 A. Trial court proceedingS...........cccccssscssseseesceseseees 152 B. Standard Ofreview .0.......ccssscssesesececseseeersseseeeseseees 155 C. The inadvertent placementin the jury room of a document not admitted in evidence did not AMOuNEtO JUFOL MISCONCUCE.......eseeeceeesessrsesesceeeees 155 Vili TABLE OF CONTENTS (continued) Page D. The inadvertent placementin the jury room of a document not admitted in evidence did not result in a Miscarriage OfJUSTICE ......... ees eeeeeeeseneee 158 E. Any presumption of prejudice was rebutted........... 159 XIX. Respondent does not object to Anderson’s request for this court to review the sealed record relating to the denial of his motion for discovery ofpeace officer Persommel TECOTS ....... csssssscrsseeescscesseessenrsesessesenseersesssesss 159 -XX. The validity of the penalty verdict is not undermined by Anderson’s testimony in favor of the death penalty..... 160 XXI. Thetrial court properly refused to instruct the jury with a revised version of CALJIC No. 8.85 ........eeeceseen 163 XXII. Thetrial court did not err in refusing to instruct the jury that there neednot be any mitigating circumstancesto justify a decision that the penalty be life without parole eceonseseepeensensesaneratersensnsensertovrevenpessorenesoets 165 XXIII.The trial court did not err in refusing to instruct on lingering OUD...ceseesecsceseesectecseeeetecneetasterateesvee 166° XXIV.California’s death penalty statute is consistentt with COnstitutional principles..............esceseessesetenscseesesesesanseeees 166 XXV. California’s sentencing scheme does not violate equal Protection PLINCIPlES oo...essessetettseeeceeeereeeseseretnens 167 XXVI.California’s death penalty law does not violate international norms ofhumanity and decency................... 168 XXVII. The one-year enhancementforthe prison prior allegation should be stricken becauseit is based on the same prior offenses that serve as the bases for the serious felony prior allegations, for which five-year enhancements were imposed 00.0.0... ccecsceseseeeserssesseeseeseees 168 XXVIII. The cumulativeeffect ofthe alleged guilt and penalty phase errors do not require reversal of the convictions or death judgment..........cccsseessetseseseseeeseees 168 CONnclusSiONn sec... cecccecsecccscseccesssseeceeseeerens seanconeesoesonsosnsssssssscssssaseaserneensess 169 1X TABLE OF AUTHORITIES Page CASES Alcala v. Superior Court (2008) 43 Cal4th 1205 occcsscsessessessssecssscnscssesssscsssesssssscsscssssveasenreenees49 Arizona v. Fulminante (1991) 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302.0000...40, 71 Bruton v. United States | . ~ (1968) 391 U.S. 123, 88 S.Ct. 1620,20 L.Ed.2d 476 wieeccetesstscsseneens 28 Cahill v. San Diego Gas & Elec. Co. (2011) 194 Cal.App.Ath 939ceeeececectccesessesscnsctseaesaseetscseeseacasersenes 54, 55 Chambers v. Mississippi | (1973) 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297oiccsceeeses 168 Chapman y. California a (1967) 386 US. 18, 87 S.Ct, 824, 17 L.Ed.2d 705 ooo. cesecceceeeespassim ‘Cooley v. Superior Court . (2002) 29 Cal4th 228 oo. eccsesssessssssssessssssscsssecsessessrssserssessevenrecrsevenucsaess 77 Cranev. Kentucky (1986) 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636...eeseccesceee 75 Darden v. Wainwright . : (1986) 477U.S. 168, 91 L. Ed. 2d 144, 106 S. Ct. 2464oo137 Davis v. Alaska _ (1974) 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347...eeesssesesesesees 77 Delaware v. Van Arsdall (1986) 475 U.S.673, 106 S.Ct. 1431, 89 L.Ed.2d 674 eccssss.Leseseesees 77 Donnelly v. DeChristoforo (1974) 416 U.S. 637, 40 L.Ed.2d 431, 94 S.Ct. 1868... ecsseeccenessses 137. - Dyer v. MacDougail (2nd Cir, 1952) 201 F.2d 265....eeccssesssesesssecssessecssssssessssssrcaneereeneenvers 131 Elkins v. Superior Court (2007) 41 Cal.4th 1337............ veteesensossessesneereessossesasesscessesesseatsnesussssatenes 131 Estelle v. McGuire (1991) 502 U.S. 62, 112 S.Ct. 475, 116 L.-Ed.2d 385........ 60, 71, 88, 96 Inre Cruz . - (1966) 64 Cal.2d 178 sesesenesesscevcnecuesenensccscusssaserssssseresssaescsensacseneevesensessenseess4 Jammal v. Van de Kamp (9th Cir, 1993) 926 F.2d 918.ceseeecesessceenensscnsesseseeseees 60, 106, 111 Montana v. Egelhoff (1996) 518 U.S. 37, 116 S.Ct. 2013, 135 L.Ed.2d 361...sees75 NBC Subsidiary (KNBC-TYV), Inc. v. Superior Court (1999) 20 Cal4th 1178 o...sceseeesseccssescssesceoneensnneeersanrsenssessanseseen 149, 150 People y. Adams. | (1960) 182 Cal.App.2d QT cesscsssessseceesenesesseveeceseeneatseceneesseneesseneaeeseneassees 140 _ People v. Adams (1993) 19 CalApp.4th 412...ccsccsscssesssssesesecescssseessscessessesscsseseesees 131 People v. Alcala (1992) 4 Cal4th 742 ooo. cecesseesssecsseseesesseeseesesseeseees seseenseseaensaeaeescacneaneneeees 85 People v. Alvarez (1996) 14 Cal4th 155 ooccccccecssesseestsscssessessessessnsscessseassassassssesssensensesss 109 People v. Andrews a (1983) 149 CalApp.3d 358.0... ccscesesscesssesesssesessssstesseeteseseeeesees 156, 157 People v. Antick © (1975) 15 Cal.3d 79...ececceessovsssssnvesenesssusosssussasossonsssasuscocesnenressessensssany92 People v. Aranda (1965) 63 Cal.2d 518 ooesecesecsscecerteeeeeses ssseseuresesenssesavaneasecnessessvesiees28 People v. Arias (1996) 13 Cal.4th QD veressersccressssessssesssesecnavsseeseesenscreesensseconsesspeacecetenees 42, 43 People v. Bacon - (2010) 50 Cal.4th 1082..........sssaeenesseenevareessessesavaneneaseesesees esneesseecsees 16, 77 Xi People v. Barnett (1998) 17 Cal.4th 1044occescssesaestosesseeeasecsestensecncnsens 58, 62, 95 People v. Beagle | (1972) 6 Cal.3d 44accssesssssessessecssessvecsesstssesecscensesevenestessusassasesees 92 People v. Bean . (1998) 46 Cal.3d 919 occeecsssessessnecssessssssssssssssesssevecsecssecesssesaeesseesses 52 People v. Beeman , (1984) 35 Cal.3d 547 oceccescsssssssssssessssssesssssssscsevsssesrsavecsuesanesecserssnesese 115 People v. Bolden (2002) 29 Cal.4th 515 oe ecccsssessssssessscssessssessesssessessecsessecassecsusenssaesssesens 113 People v. Boyd (1990) 222 CalApp.3d 541cccsessssesssseeeessoeueeseeensessenaeees 85, 86, 87 People v. Boyer : . (2006) 38 Cal.4th 412oessisssaenseenecseseersoneenscsteneessens 66, 114 People vy. Boyette (2002) 29 Cal.4th 381 ooccecsesssssssssseesnsesssesssessssessesssssseeseestesnesnensen 76 People v. Branch (2001) 91 Cal.App.4th 274 ssosrsssssssssccsecnreconennnensensnesenssnnanacessannneerssesss DT People v.Breverman ae (1998) 19 Cal.4th 142 oossesssecsssesssssssessessstssessessecessssenessessessessesseees 122 People v. Brown (1988) 46 Cal.3d 432 0...wsssesiensegavcesnonsssecnaesavesnessesssessonsennees 62, 63, 164 People v. Brown (2004) 33 Cal.4th 382 oo.eccecssecssesssessseessssesssersseesesssssssesssssucsseseaneess 162 People v. Burns (1987) 189 CalApp.3d 734 .0.....cccssssscsssessecssessstessssecevessessitesseauessecsessses 93 People v. Carasi (2008) 44 CalAth 1263 uo...secsneecneatseneesscntnensneseespootorsersncacseansases 31, 32 People v. Carrasco (2014) 59 Cal4th 924 ooo.ecessecssssessesssesssessstsssssssesessssseonsevegeeeees 167, 168 Xii People v. Castro (1985) 38 Cal.3d 301 occecesseesesssssesesstsssscsecseeseceeeseseeeenes 91, 92, 94 People v. Cavazos (1985) 172 CalApp.3d 589.cssssscsssssenescsssscsensssssensseesssceeeessessessens 92 People v. Chavez (2000) 84 CalApp.4th 25occsssessesssssesscssessecsescessnsesesesessseseeseeenes 91 People v. Chessman (1959) 52 Cal.2d 467 oocccsescescsesscscsscssesssesessstescsssessssssessenesseesseneesses44 People v. Clair (1992) 2 Cal.4th629 ooccsscssessecesssssesssessrsessessseeneseseesesseeeees 90, 91, 92 People v. Coffman andMarlow (2004) 34 Cal. 4th Doeeceseeessesesecrsessessessssteussssseeeeseeescesueespassim People v. Cole (2004) 33 Cal.4th 1158 neecsesseessessesssssneeccecsneneesessersneny 114, 122, 129 People v. Cooper (1991) 53 Cab.3d 771 wscssssssseescssensesssssssescsecnanesessnnaneesseesnneersnsess 157, 158 People v. Cotton (1959) 169 CalApp.20 1 uccccsscscesseeccesescsscesnsanseseesssseseesessesseneens 140 People v. Cross (2008) 45 Cal.4th 58sesaseesaveveassesecesensassesseneceessseseesatapeneneesenensanerases122, 125 People v. Cruz (2008) 44 Cal4th 636 oo... cccesesscsssssssessessessecsersessereessesseeesseeeeseaeenees 164 People v. Cummings (1993) 4 Cal4th 1233 ooosccescssscessssstsersscesscnesnscnsensenssteceesseseess29, 151 People v. Cunningham (2001) 25 Cal4th 926 oieecssscsscsesseeseseessessecnessecereersesstsscnsssseseeesene LOD People v. Danielson (1992) 3 Cal.4th 691...ecessesessscesecssserssessesseseesssecseesessesesesssseesesens 63, 161 People v. Davis | (2009) 46 Cal.4th 539 oeecsssssssssesscssssssessssessesseseseess steesneesonteencesanaes46 Xili People v. Dement (2011) 53 Cal.4th Loessescessessseserssesscsnsensensenesnssacssseassacsseeseessees 106 People v. Dewey (1996) 42 Cal.App.4th 216.000... esesesestesseneeteees sovessenssasnsontscssanaeene 91 People v. Doolin . | (2009) 45 Cal.4th 390 ooesessssesssstssseesesteeneeesSessesenenessseseeeeeaeeeescusaesces 49. People vy. Duncan (1991) 53 Cal.4th 955ecessseessssesscscceenentsnesescseesesesssesonssssssseaeeaneees 165 People v. Dunkel | | . (1977) 71 Cal.App.3d 928ccsecsseesscresssnceseesssecessessessssssneansaneeseasees 79 People v. Duty (1969) 269 CalApp.2d 97...ceesesssscsessesesssessssesessesesesesesesseseassessesnssees 124 People v. Dykes (2013) 46 Cal.4th 731......... sovssecesseseeeeesnausoresnnereershnasscanersseeansessananneseesan 137 People v. Earp | (1999) 20 Cal.4th 826..............sotssoverecsonecnnvesnnessennseseneesnncsenessanes 78, 79, 142 People v. Ewoldt | | © (1994) 7 Cal.4th 380 on.ccccccsssssssssscsseesssecssssesssseceseseesessssssssstsssseeeen 47, 48 People v. Falsetta (1999) 21 Cal.4th 903 ooceeessessesestsesessseensenssensensees60, 71, 106, 111 People v. Farnum . (2002) 28 Cal.4th 107 occecssssscsssecssesssessssnsssssesssssevsansscesssessersessnses 167 People v. Fields (1998) 61 CalApp.4th 1063.0... esesecssctssesesssssssesesersesesnescessessesesseess 110 People v. Flood (1998) 18 Cal4th 470osesssecseecssssesssesssesssessesassesseseseseesecseessteaeees LOG People v. Fries . | . (1979) 24 Cal.3d 222.......... sessenseesessecnsesassnesssssseneeaseseeessersssaeesanssecsssessease 94 People v. Frye (1998) 18 Cal.4th 894 .cccssssssssssssnesnssesiesensnetiereseesneeeeene 129, 138 XIV People v. Gaines (2009) 46 Cal.4th 172 2...eeessesessccseseselerseneereecceeseassseesessasessssnenssensaees 160 People v. Gamache (2010) 48 Cal4th 347 ooeccssescsesescecesessessscssesseseaserscasoseesecsseseesenseses 31 People v. Garrison (1989) 47 Cal.3d 746 oeeeseseceseneneesseesssenecssesetscseetsnsteneesseeneeees 66, 69 People v. Gray . (2005) 37 Cal4th 168 00...ccesssseescsseesereesesscensescseassessseeeseessnsecessssesens 166 People v. Green (1951) 102 Cal.App.2d 831vwsescsecsensessssnsessssssessnssersrsssereresresseeses68 People v. Green (1980) 27 Cal.3d Da. eeceecsssssssssmcsssecnessnsecnsecssneesssecssanssseccsssseessaes 100, 139 People v. Guiuan (1998) 18 Cal.4th 558 oocsecsscessncssecesnsesssseneesscssecessssssseesssensers 129 People v. Gutierrez . (2009) 45 Cal.4th 789 ooseesssssscssssessestsccssnesescesseessseescsesssesseasensees we 7A People v. Guzman | (1988) 45 Cal.3d 915 o...csssssesssssssscesssesssetesesneseaeesenesseeeseeeceeceeneenees 160, 161 People v. Hamilton | (2009) 45 Cal.4th 863 ooesssssscsssssscseansssssenesisassesssesessresssesenseeespassim Peoplev. Hardy © (1992) 2 Cal4th86...eeseensessccessenscnsanssesvensasseeesaseneneess32, 33, 35 People v. Hartsch (2010) 49 Cal4th 472 occ eesssssssssesesseeessessesssssssasesssnesssesessseseeesseneen 118 Peoplev. Hensley (2014) 59 Cal.4th 788 oocssssssccsscsetsscscssstcsseseascnescsseessesseesencsesseseees 147 People v. Hernandez (1988) 47 Cal.3d 315 eeeeesssssessececessseessetcnseesnssceeeeees soeevsesseseaeeecenarsees 15] People v. Hill | (1998) 17 Cal.4th 800 oo.esessscesesssesesssesenecsersesseesees 112, 140, 169 XV People v. Hines (1997) 15 Cal.4th 997 vocessesssssessssstsnasissuastssaseesiseesstesesetannssnsen 166 People v. Hinton | | (2006) 37 Cal4th 839 oo.cessessesecsssssecssessessssessene veseseersceneaesentenatasseasens 95 People v. Holloway . (1990) 50 Cal.3d 1098 oocccecsecsessssessesssssssssesscescsstsssessecsterestesesnee 13] People v. Homick | © (2012) 55 Cal4th 816 oocecsssssesessesssecsssessesssssssessssessssecsecsesssesseeneenes 66 People v. Hoover (1974) 12 Cal.3d 875 oncecsecsssssscssessesssssscssseessssssssssscsssassssssrecresscseesenss 114 People v. Hovarter a (2008) 44 Cal.4th 983 ooocsssssecsessessessssecsssessssssesseeseesees 60, 106, 111 People v. Huggins (2006)38 CalAth 175 oeecccssessecssesseseessssscsessscsesrseeresnsenessecnseen 138, 139 People v. Jackson © (1996) 13 Cal.4th 1164 oecsccssecssseesssssssssssseessssssstsesseesssevessusesseesseecs 40 People v. Jenkins . (2000) 22 Cal.4th 900occaevevesseseusessesscasssseserseraseesesnspeaeosassessenseat 65 People v. Johnson (1992) 3 Cab.4th 1183 ou.ccsssescecsessseseesssessetssesesrerees 101, 102, 104, 162 People v. Johnson (1993) 6 Cal.4th 1........sosesareeueansesaseesecssenssensasesSessnasaesssevscseerssenegeecseeaseesees 165 ~ People v. Johnson (2003) 109 Cal.App.4th 1230...eecccesesssesssesseesssssesesssssssssessssessssessees 142 People v. Jones | (1993) 5 Cab.4th 1142 wecccsssssesescccccnsssessessscsessescessenechsseressesssennnmeressanes 168 People v. Jones (2012) 54 Cal.4th Lance“eesesessseseceseeeessessevecaterseeesssenesneveneneaseess 166 People v. Kelly . (1992) 1 Cal.4th 495 ooocssssssseeseesesssessessene esessosseesesesussserserueiseeseees 129 People v. Kipp (2001) 26 Cal.4th 1100 oooccsesscesssestcnseesssssssesscnsessesssssssnseesseeees 56 People v. Kitt (1978) 83 CalApp.3d 834...ccecessssccssssessesscessesessestenesnenss 156, 157, 158 People v. Lang (1989) 49 Cal.3d 991 .........sesesesseasecseseeeseecetsssucstscsesucetscsensensnneanscenenees 91, 92 People v. Letner (2010) 50 Cal.4th 99ocecssscsccsscesscsessesscessesssssessesesssesersenceeseneseaseeess 32 People v. Lucero (2000) 23 Cal.4th 692 oi seccesssscesssssecsscessesesscerssssscersesesssesssssssseseseseneas 164 People v. Lucky (1988) 45 Cal.3d 259 ...........sesescsecsevesesessseeseneseeseerssccesseereneaeseaeaceueeeses 44,45 People v. Mai (2013) 57 Cal.4th 986.............. sssucsscnessensssessssnsensanssaenesassecsessesnsascaseavens 161 People v. Martinez (2010) 47 Cal.4th 911 ooeesecesecersecssscessensenserserseseeneeesens 150, 151, 152 People v. Matson (1974) 13 Cal.3d 35.00.ssvccssvenegevestesecorssseseceesdocsnevensnensnensesesitansasesees 44 People v. Mayfield (1997) 14 Cal.4th 668 uoeccecsesseessteeseessssesssessesassenessserseesenenseees 142 People v. McKinnon (2011) 52 Cal.4th 610 oneesecssnsessecsssssessnecnsnessesessssesesssnesseereseesieens oo 167 People v. McKinzie (2012) 54 Cal4th 1302 on.cessscseeesocessssesssesseeseserersersessessesesees 164, 165 Peoplev. Medina (1974) 41 Cal.App.3d 438 oo... eecsesesssessessesssssssesssessssssesssessnsssssessvenpassim People v. Medina (1995) 11 Cal.4th 694oeecvevcusseonsecevsssscsensnessorscussnessecsssosesnses 138 People v. Melton (1988) 44 Cal.3d 713 oeessecsesecesessesssesecsssseccscssssecsssseessrsasserseseess 78, 79 XVil People v. Mendoza (2000) 78 Cal.App.4th 9180.ccsessesssssssssscessssssscsscsesevecsvecstessneessessenses 93 People v. Merriman . . (2014) 60 Cal.4th 1.saevsvasessvacsenensovensseneqeaeseescesssaseeeeseseeneseessssseves74 People v. Montes . (2014) 58 Cal.4th 809 wu.aeveseseseossessesseueessssessaeeesseasesscsestacessenaces 31, 32 People v. Mooc (2001) 26 Cal.4th 1216... eccecscsessssessesscssssssesscsesscareressecerecesenesecsecaes 160 People v, Morris . | (1991) 53 Cal.3d 152 oocccccssssessesstsesesssssessssssssstensevsessesusssessessnessess 55, 56 People v. Musselwhite (1998) 17 Cal.4th 1218 ooccscsessssreereeseneeeesesseseeee vesssneesnenseeasens 165. People v. Nakahara (2003) 30 Cal.4th 705 oo... eescsssesssssesersesserssssscsessscsesnesvensensretsessens 160, 161 People v. Nesler . _ (1997) 16 Cal.4th 561ceeeeeceeee sveseccenvgneneeessessens 155, 156, 159 People v. Nuckles . (2013) 56 Cal.4th 601 ooo.ececesesssessssssecsestssssessecessesescavasesseeesveeeessenens 124 People v. Padilla . (1995) 11 Cal.4th 8910 onc csccsescssssssesssssssssssessessesssessssscsssecsssssssesssssvesssees 139 People v. Page (2008) 44 Cal.4thLonccesesessssessecsesssssecscssessssesecerereassessesessessessepenenses 167 People v. Perry (1972) 7 Cal.3d 756.0... eccccsesssssesssssssesscsscssssssssscsesssecessseesecssecssuessscasens 55, 56 People v. Perry , (2006) 38 Cal4th 302 oncecssssssesssssesessecssessrsssesstsavsreeceerecaterseesesseenees 165 People v. Pitts . (1990) 223 Cal.App.3d 1547.........sesssenesenseacevesvevasanenseacsesteneateasarees sereeeee 93 - People v.Plengsantip (2007) 148 CalApp.4th 825... cccccssscsescseesesseseseseees Lesesenvenseceesaeeees 124 xvii People v. Price (1991) 1 Cal4th 324 voccccsscssssssccssssssosssssesssssssscessesssessssssssees 85, 118, 169 People v. Quartermain | (1997)16 Cal.4th 600 oneeccssesecssessessvensseassessesesseesesseecssnensseersnssenes 62 People v. Ray (1996) 13 Cal4th 313 oeececeesscsessesessenseneessssssseeseseneeeeseeeees 147, 165 People v. Remiro . (1979) 89 Cal.App.3d 809 .......csesssssesseessenssnessasesnessnsesssrnesvessesses 56, 58 People v. Riggs (2008) 44 Cal4th 248 ooescsecssssecncessenesesceessesssseeseeveseesseersesseeees 138 People v. Robbins (1988) 45Cal.3d 867 oo... eecsscsssesssesersenscssenenvscsenesscacstenesescenssnesterssseeess 47 People v. Rodgers (1987) 240 CalApp.3d 258... cesccessssessescescssesensensscssststssersensensesesss 92 People v. Rodriguez (1986) 42 Cal.3d 730 woeesesecessesessseecssssscsecscnecnscnsersesssneanenceeneesenes 114 People v. Sattiewhite © (2014) 59 Cal.4th446 occscesssseesscssssssseseessssseessessessecsecssssesssssnenssnsseress 164 People v. Schmeck . (2005) 37 Cal.4th 240 oeeecseesessesessseees sessesseenesasesssensessssesaseneenenss 166 People v. Scott (1978) 21 Cal.3d 284.ssssccsecesssssseessssnnsreeessssssssnsssnsnecienserssanesecen 78 People v. Scott (2011) 52 Cal4th 452 oocessesesectsssceseseessestenecesetsenseracsesenssecorspassim People v. Seaton © (2001) 26 Cal.4th 598 ooisscsseeesnssssssssssssesssseesessessesscsnsseessssesnsneeaeees 165 People v. Seijas © (2005) 36 Cab.4th 291 oeecccscssssessssessssessessassseeenessssressersentersessnessressen 100 People v. Soper (2009) 45 Cal4th 759 oesecsseeseeceeescosesspesegnecessesesseseseenes 42, 43, 44, 45 xix People v. Souza (2012) 54 Cal.4th 90 nn... ccssssssssssssssssssnsecessssssssssssesssssasssanesteseeeeeeeeeccccce 31 People v. Stanley (2006) 39 Cal.4th 913 cccccccssssssscsessssssssssssssssssssecerecceseeescesessesssoneesegaees 43 People v. Staten (2000) 24 Cal4th 434 oocccsssscsscsssssssssssssrssssssssssstssstasssssesseeeeeeceec 166 People v. Stewart | (1985) 171 CalApp.3d 59 ..ccccccssssssssssssssessssssssssssssssstssssssssweeeccecces 92, 94 People v. Sully (1991) 53 Cal.3d 1195.00...aesesenesesesscssssecessecssscessesastavsnenestenaessens 114, 115 People v. Thomas (2012) 53 CalAtl 771ceeecccscssssesesssssssscssssessesssssssssssssssissessasesseecccc, 52 People v. Thornton (1992) 3 CalApp.4th 419... cccssscssssssssssssssuvesssssessesssusssesseseseeseeecsseesc. 91 People v. Turner (1984) 37 Cal.3d 302 woecccsssssesssssessssssosececsescosss,seseeseseevenneoes 31, 39, 164 People v. Uribe (2011) 199 CalApp.4th 836..0.....cccccsssssssssesssssessscscsssssssstestteseececccecccc137 People v. Vaiza (1966) 244 Cal.App.2d LOD ec eeeesssecsessssescsssssecssecscsscesevensesecesees 85, 86, 87 - People v. Valencia (2008) 43 Cal4th 268 .......sssssssssssssssssssssssssesssssusuunerececceccocccc 164 People v. Vines (2011) 51 Cal.4th 830 oooeccccccccsscsssssssssssuensrasssssssssssssestessesessensesssess 43, 46 People v. Watson (1956) 46 Cal.2d 818 stsetnseneansseecueseteenttnetensanseteetieestnneseveeees...passim People v. Webb (1993) 6 Cal.4th 494 occcecsssssssssstseseeessssssssseseessessesseeeeceece. 160, 161 People v. Whalen (2013) 56 Cal.4th Lon.cssssssecsssssssssesesssasesssstvassssssesserssseseesess 118, 119 People v. Wheeler (1992) 4 Cal4th 284 ooccesesccsccessssscessescssacsssssesseesseeseassesseses 90, 91 People v. Whitt (1990) 51 Cal.3d 620 oo.eeeeessessstesssssesssesssesersesseseeseersessoessasensswee 161 People v. Williams (2008) 43 Cal4th 584 oooecesesssssssesecssenecsssssanesssesssseeeseecessensens 74, 100 People v. Woodard (1979) 23 Cal.3d 329 ve ccccessecsssescesesessecsessensensenensersoteseseseesseaeessens 92, 93 People v. Yoeman (2003) 31 Cal.4th 93 weessesuecsecaesesessatseensscssegeesatsenenesesageaseesees47 People v. Zambrano (2007) 41 Cal.4th 1082 0... ecsscsessesssrsessssstsssesssssnesssessssereecssneessnes49, 50 People v. Zapien (1993) 4 Cal.4th 929 oooecsccesstensessensesesecesssaeensseneseeneeees 57, 99, 114 Pitchess v. Superior Court (1974) 11 Cal.3d S31 oeeessessssesesessersersesssesessecessesestseseceessseeees 159, 160 Press Enterprise Co. v. Superior Court ofCalifornia (1984) 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629...cece 149 Richmond Newspapersv. Virginia (1980) 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973...ecceseseees 149 Rock v. Arkansas (1987) 483 U.S. 44, 97 L.Ed.2d 37, 107 S.Ct. 2704 ocecesessesseseeeess 160 Shamblin v. Brattain (1988) 44 Cal.3d 474 ooccessecsesersesesssecterseceensassessesesseasecssecsesscsessseseenes 55 Smith v. Phillips (1982) 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 oeeecseseeene 131 Turner v. Louisiana (1965) 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 00...sesseveneeeoes 131 "UnitedStates v. Aragon (Sth Cir. 1992) 962 F.2d 439...eeecssteceeseesssesssessssesesserseeeacsnerseracs 151 | United States v. Balter (3rd Cir. 1996) 91 F.3d 427 wccccscccsssessssstsscscssesssteesssseseereresSeeeenee 40 United States v. Bermea | . | (Sth Cir. 1994) 30 F.3d 1539.ccccesssccsecseresssesesseersecseressssessceeees 151. Yates v. Evatt (1991) 500 U.S. 391, 111 S.Ct. 1884, 114 L.Ed.2d 432.0000...passim STATUTES Evidence Code §4eeeeessesestscsacvesesesessesessscaesesssnsenssessssesesseseseavanesssessnsescstansicens 84 § LO ecsscveccssssssscvssssestssscsensscesseseesesssuvecesssassssessssevesssssesecsecsasensessen 56, 84, 94 § B5O ccecsssvesscssssssssssssusssssssssssssveceessenssevecersesensanstnssneersanssesseseeesceseesnsees74, 84 SSLeesesessssecsssesessenssesessenentessessssssessssseesssseseeseesssssersesesesstsssesserseessees 74 § B52 oo ccecssssessecssecsssssnecsessecsscsssesscssessscessersssesssssavsassensessusenuscsscanseseeenenspassim § 353, SUDA. (D) vaccccsccccsecscssssecccccsssecsssessssssssssecsesuserseseesssansess 59, 106, 111 § B54ecccsesssssnssescseseceserssecscscrsotsecesescosssssssassneaesesensacseesesnsscseassessesesaees 74, 75 § 780, SUDA. (f) un.eesesesssessesssessesesesescsesscsscsnssssesesessscsestesssseesseessensaseeess 143 § 780, subd.(j)............ sesvssesceceasevessccseecesesessssssasusecszesessssseaeanssesssesecensevaces 143 § 788oeecsscesecesesecesscssscsesssssesecesssncgscasasecssassacsesseeusecsusesesesearserscesssssssenseases 9] § 1043 et SOQ. vceecsecsesececsseceereseeseesaeesonesnsonsensostosseatssssneserersccsersesensansees 159 SL LOLieeecscsesssesssssslesssessssssecavscnssvessssesesssseececsssssostsssesacsvaaeees 45, 46 § 1101, subd. (8) onecseseseeeeeseseeesecesesscseonseeseasseeveseseesecsenensaceccesees 61 § 1101, SUD. (b) oececccecessesssesssecessssssssssscssesssessssussecsrssstssavecusesnsneeseterees 46 § 1200..ccssecssessssssssssssscssvecssssssssesecsescensvvececseesscssssenssecsranseasscessesessanseseessue 101 LL) 100 F220eseccsestesesesssesesssesenssesecseeseecaesessesrsnsersesnsrsecussseses seseesesensessenes 101 § 28Siesestsscssssscsssssesesessscsesesessssesescsvscssesssersesenscnsersersavsnsasaves 96, 101, 102 - Penal Code BDcece eseeseesesssesssssssucsssssessessssncssesssensasasesussseceseessavcartassessessaseceveneereavennens 115 § BQ veecscssssecessssssvesecsssssssssccssssusecsssssssuecessuesssessentersasecersnseseerssssseeseessen 115, 124 § 182, SUDA. (8) onsceesesssessesessesssrsesesonsssestessseenessnenssessecscsecseceeessesnesseases 2 (§ 187, SUD. (a) oeeeeccesesessessesscssssssesscensssssscseesscssevesssossvsassnsensenesaveceeseenees 1 § 192, SUDA. (A) on.eeccesssssessssssssscsscsssecscsnssscacsnsesensessssessssssscsersvesssscaeavenses 3 § 190.2, subd, (€)(17) scscssscccssecessseeseensosesesessstscrenseseuenseseesevensesaceansersee 1 § 190.3, subds. (D) & (C) on. cesecsecsesseneeteeseersenseresdeveecseceseseaseesecscesseseseeenes 61 § 190.3, subds. (a) through (kk)....cssesssssssesesssesesessessenescssseneessssesees 163 § QW Locscscccssssssssssnvssvsssssssseesecesevevsessnssesseesssssseessnsnrsssseeeeeseessesacsensasssssassessecanees 3 § L125 ccrccsccsscssesccscccssssssesssvsccesssvesctsvessecseesccercesssssvesseesesssesesssauevscessecessssssssnes 3 §DWBecsrecesscssscecssececcecesserseveevecceccnsnssseceececcceceecceseeceeseeceesessusvenseeeseesesseseseesseeee 3 § AOOc ccesecsscsecsssssccsscsssssssnssssevessssssvssvsssssvuesseseeeeerssssssstsesseeseseansasecsreceesesersessees 2 § 487, SUD, (A) oeeeceeeecessesesecenssessenssessceesnescsesussesecsnsnsseseassuensseessseeeeseees 2 § 654 oo eccsesseseecesseecccneeesesssenssssenssussesssssseseossnsesscnsasseseseserseseseassessseesaseacecs 4,5 § G64. cceeeecesvscssscesssecssssssssssveescesssssvsssvssssseseesecesssnsasuavussosseeesesssssveesecseseessessase30 § 667.5, SUDC. (D) 0... escessesseesesecsssecessesessesssssscseossssesssseseesseneesseneasscsvens 168 § BBQTeceesescesscseetesesesescstscecscsesecarserssscecscnesrerscecersssscnecesascasscssecsessesenes 159 § O54oe rcssecsecceecesesssseseceessesesesescssecnsscsenenenenscesecucsssessenssesesssestaceesseserspassim $995oeecsssscssstsescsssscnssesnsscesenssssnsucsesacorseserscusssceenesesscsesseususesescsesetsesescasecees 2 § 1089.eeeeeesesessessessccscnenenscsecsnensnsseeseseseonsseseeseavensensacaeseneessessaeenses 150 § 1098oneeccseessstsscscsscesesesesesssnesesnesenenscnsgencossesssusesscausessseasatensseseaeMeredl Sbceeeeeeeeeesseasesesssenenecvecneavesnsaresenesueseesessaneneseveneseseaneaesesassenes 114 S LDLS LD eccceeseessseesseesseesesseseees ssusaessssaueseseaeasssceconsesesneasessessscsesueseseessenses3 SG LDBGocccccccccsccssssssssssssssccesecccssesessesssnssesessessenseseenessuesusnensesecesesssesees 129, 130 § L147ceeeeseeneeeesseseeneneeenenstesseeecsesenessarsuceceesesescesesseneseacseeenesenenses 145 § 1163eeessecsscsesssessssssessscsescarssssesseecsesceevsacsensscsucnenssersssscasseeseneecsrsaes 144 $117.1 Qecccccscsscscsccsssesssececccsvusesesccsssssesecassssssssssseceesceessssnssnsssssesssstsssssssevesseen 2 § 1239, SUDA. (D) 0...esseesesssesessccesessendecsessssecesessscssesessensesseeestssseseneneaes 5, 11 § 1B24.eccecssesescesesesseessseseeerssesssnssssessssensssees esesssenessseeaesesscneenecsneseseeens 68 § 12022, subd. (A)(1) 0... cesscssessssessscsescssscseessssesesecsetenesesseacssesecsessseeususees 2 § 12022.5, subd. (A)(1)) «0. sesesssceeseneeesnesecneereeceeenenessens sesesenessesesnearacenene 2 § 12022.53, subd. (D) on. eeesessectectessseescersessessenssssscsesecseesserseesarsecaeseeseeseres 3 *§ 12022.53, SUD. (d) o.c.eeceecesccssscessssesssssessssssecssesssscseerersstsessessssvscseecacsees 2 § 29800, subd. (a)(1) sesscccosseseeveceeevenssscessesevneeserreneesseveesunnseneesineseevsenssee 2 CONSTITUTIONAL PROVISIONS California Constitution At. 1, 3 Laocesessesesncececescsensscssesesscersrseseenencseetsecaceesesassesestsessesesrsreteses 77 art. I,-§ 28, subd. (L)(A)eereseescsersscsesnsersessnecsnensnes sense secessesssesssecsasersevecceanecs 91 ATE. VI, $13eeesecsssssseercecteeessesesenesecssecsescousessssvaserecerseesssesaesessseeespassim United States Constitution . Fifth AMendMent......ccciccccscccsscssccssccsccsscccssccssssescesescesssesseereerseccaese 97, 104 Sixth Amendment...secscssccsscsscsccsccssccseccsscssscccscsscscecescsccesesuececsensce 77 OTHER AUTHORITIES 1AWigmore, Evidence (Tillers rev. ed. 1983) § 102.......ccccscssseseceeseeseee 47 XXxiil 2 Wigmore, Evidence (Chadbournerev. ed. 1979) § 302...47 2 Wigmore, Evidence (Chadbourn rev. ed. 1979) § 304.00.47, 48 Cal. Law Revision Com.com, Deering’s Ann. Code Evid. (2004 ed.) LOU. § 140.cesescssssscsssscessesecccsssssssececescsesnesssacsevsossvateaeastavscesscscereacaesass 84 CALJIC NO. 1.00 weecesssssceesssssssscseesescessravesseeaveseatesessessassaeatentenestessessesssnsasesers 128 NO. 3.00 woesccecesscsesseseceeseneesecssesseeusnssessassssessessesssssssesasosseeserssensesaenensenes 121 NO. 3.10 weesscssesssessssssssesersresseessseesenssessesssescssvsseuscsecsesssseevecesesesesteeeerenses 113 NO. 3.19eceesscsscsessssessssecsscsessesesssesssesescssscascacsasssessssecussvscssonsssassssanecasess 113 NO. 6.40 ooo ccccsesssesssessncssesscecencsssevessasssssansevarcansaseasessosecasvassersvsnseseecesens 121 NO, 8.85 u..ccessessscsssssssssecsesevsevsccesssessscecsssseseessnsesecesscessseonsaneres 163, 164, 165 NO. 8.88 ooccccesssesssssessessssessscessesesssesessesssresssecsussssoeesasscssssasseseeseesseseeee 165 NO. 17.31 ceeeceesscsscsssssersssensecsatsrsccscecsessvsosesesseescsssnessssscsconeeseccsestaceserseees 125 XXIV INTRODUCTION Appellant Eric Anderson and two accomplices drove to the home of Steven Bruckerto steal moneyfrom a safe inside Brucker’s house. Anderson parkedhis car in the driveway and, along with one ofhis accomplices, approached the front doorofthe residence on foot. Brucker opened the door and told Anderson to “get the fuck offmy property.” Anderson respondedby saying, “fuck you,” and shooting Bruckerin the | chest with a .45 caliber handgun. The bullet perforated Brucker’s heart, and caused his death a short time later. After shooting Brucker, Anderson and his accomplices fled the scene. | A jury convicted Anderson of capital murder and conspiracy to commit burglary and robbery.It also convicted him oftwo counts of residential burglary based on other incidents. At a bench trial, the court found Andersonguilty ofbeing a felon in possession ofa firearm. The jury ‘returned a verdict of death, and thetrial court sentenced Anderson | . accordingly. Inthis appeal, Anderson challenges various rulings made and instructions given bythetrial court, accuses the prosecutor ofhaving committed misconduct, and contendsthat his death sentenceis unconstitutional for several reasons. As discussed in detail below, none of Anderson’s claimsentitle him to relief, and the judgmentshould be affirmed. STATEMENT OF THE CASE The San Diego County District Attorney charged Anderson and three | codefendants (Brandon Handshoe, Apollo Huhn, and Randy Lee) with the murder of Steven Brucker on April 14, 2003, and alleged as special circumstancesthat the murder was committed in the course of an attempted residential burglary and an attempted residential robbery (Pen. Code, § 187, subd. (a), 190.2, subd. (a)(17)).'All four defendants were also charged with conspiracy to commit residential burglary andresidential robbery (§ 182, subd.(a)). The district attorney further alleged that Anderson personally fired a handgun in the commission of the murder resulting in great bodily injury and death (§ 12022.53, subd. (d)), that he personally used a handgun in the commission ofthe conspiracy (§ 12022.5, subd. (a)(1)), and that his codefendants were vicariously armed with a handgun in the commission of both offenses (§ 12022, subd. (a)(1)). Anderson was charged with four additional crimes: two residential burglaries based on facts unrelated to the murder and conspiracy charges (§§ 459, 460), being a felon in possession of a firearm (former § 12021(a)(1) (now § 29800, subd. (a)( 1))), and grand theft of a firearm (§ 487, subd. (d)). Finally, the district attorney alleged | that Anderson had previously suffered one prison prior (§ 667.5, subd. (b)), two seriousfelony priors (§ 667, subd. (a)), and three strike priors (§§ 667, subds. (b)-(i), 1170.12). (1 CT 106-114.) - Anderson pleaded not guilty and denied the allegations. (9 CT 1774.) During pre-trial proceedings, the trial court granted Anderson’s unopposed motion pursuantto section 995 to dismiss the grand theft charge on the basis that he had been ordered to answer that charge without reasonable or probable cause. (3 CT 592-599; 9 CT 1810; 4 RT 669). The court denied Anderson’s requestto be tried separately from his codefendants, and further denied his request to sever the burglary charges; however, the court ordered that a separate jury hear the case against Huhn. (1 CT 155-156, 162-196; 5 CT1075-1080; 9 CT 1810; 3 RT 600-4 thru 600-9, 600-30 thru 600-31; 4 RT669-689, 689-691, 712-713; 6RT 1110-1 112 .) Anderson waivedhis right to a jury trial on the charge of beinga felon in possession of a firearm, All further references are to the Penal Code unless otherwise indicated. and that charge wastried to the court; the remaining charges were tried to a jury. (9 CT 1842.) Duringthe jury selection process, Handshoe negotiated a plea bargain with the district attorney. Consistent with the terms of that bargain, he pleaded guilty to voluntary manslaughter (§ 192, subd. (a)) as a lesser included offense of the murder charge. He also pleaded guilty to an added charge of attempted residential robbery (§§ 664, 211, 212.5, & 213), and admitted an allegation that he personally used a firearm in the commission of the attempted robbery (§ 12022.53, subd. (b)). (9 CT 1829-1830.) The case proceeded totrial with two juries: one jury heard the case against Anderson and Lee; the other jury heard the case against Huhn. At the conclusion of the prosecution’s case-in-chief, the court granted Lee’s motion for judgment of acquittal with respect to the conspiracy charge due to insufficient evidence ofan agreementinvolving Lee. (see § 1118.1). (9 CT 1884, 1886, 1889, 1890, 1892; 26 RT 4596-4598.) On June 27, 2005, the jury found Anderson guilty as charged, and found the special allegations to be true. (9 CT 1926, 1928-1934, 1936; 33 RT 5427-5430.) The court found Anderson guilty of the possession charge. (9 CT 1926, 1936; 33 RT 5443-5444.) Anderson waivedhis right to a jury trial on the prior conviction allegations, and, following a benchtrial, the court found those allegations to be true. (9 CT 1926, 1938; 33 RT 5435- 5436; 34 RT 5461-5465.) _ Lee was foundnot guilty of the murder charge anddischarged from ~ the case. (9 CT 1926, 1935; 33 RT 5430, 5434.) The jury that heard the case against Huhn found him guilty ofmurder and conspiracy, and found the special allegationsto be true. (9 CT 1916-1917, 1919-1923.) * The judgmentin Huhn’s case wasreversed on appeal for juror misconduct. (People v. Huhn (April 3, 2007, D047328) [nonpub. opn.].) On July 8, 2005, Anderson’s jury returned a verdict of death. (9 CT 1950-1952; 37 RT 5723.) The court denied Anderson’s motion for a new trial and to modify the sentence from death to life without the possibility of parole. (8 CT 1663-1681, 1701-1707, 9 CT 1953-1954; 36 RT 5731-5745.) Thetrial court imposed judgment on October 28, 2005. Anderson was sentenced to death for the murder conviction. (9 CT 1954, 1956; 38 RT 5754.) As enhancements to that sentence, the court imposed an indeterminate term of25 years to life for the use of a firearm, plus two consecutive terms of 5 years for each ofAnderson’spriorserious felony convictions, for a total indeterminate term of 35 yearsto life. (9 CT 1954; 38 RT 5755.) Forthe conspiracy conviction, the court sentenced Anderson to an indeterminate term of 25 years to life inaccordance with the three strikes law, plus a consecutive term of 4 years for the use ofa firearm, and two consecutive terms of 5 years forthe prior serious felony convictions, for a total indeterminate termof 39 yearsto life. Execution ofthis sentence was stayed pursuantto the rule in section 654 prohibiting multiple punishments for the sameact. (9 CT 1955; 38 RT 5755; see In re Cruz (1966) 64 Cal.2d 178, 180-181 [holding section 654 bars punishing a defendant“for conspiracy to commit several crimes and for each ofthose crimes where the conspiracy had no objective apart from those crimes.”].) For each ofthe burglary convictions, the court sentenced Anderson to an indeterminate term of 25 years to life in accordance with the three strikes law, plus two consecutive determinate terms of 5 years for the prior serious _ felony convictions, for a total indeterminate term of 35 yearsto life. The terms were ordered tobe served consecutively to the prison term imposed for the murder conviction. (9 CT 1955; 38 RT 5755-5756.) For the conviction of being a felon in possession ofa firearm, the court sentenced Anderson to an indeterminate term of 25 yearsto life in accordance with the three strikes law. Execution ofthat sentence was ordered stayed pursuant to section 654. (9 CT 1955; 38 RT 5756.) Lastly, the court imposed a term of | year for the true finding on the prison prior allegation, to be served consecutively to the other prison terms imposed. (9 CT 1955; 38 RT 5756.) ~ Executionofall the prison terms imposed above wasordered stayed pending execution of the death judgment. (9 CT 1955; 38 RT 5756.) ‘This appeal is automatic. (§ 1239, subd. (b).) STATEMENT OF FACTS IL SUMMARYOF FACTS RELATINGTO GUILT A. Prosecution Case 1. Background information about Andersonandhis codefendants Anderson was on parole, living in a condominium in the City of - Poway with James Stevens (a former prison cellmate) andTravis Northcutt. (20 RT 3505-3506; 21 RT 3584, 3617-3621, 3630-3631, 3635.) Handshoe, Huhn, and ‘Lee lived in mobile homeparks in the Rios Canyonarea ofEl Cajon. (16 RT 2499, 2560, 2561, 2568, 2655-2657; 18 RT 3069-3070; 19 RT 3267; 20 RT 2442-2443, 2448, 3479-3480, 3490; 22 RT 3690, 3691, 3701, 3705-3706, 3825.) Among other vehicles, Anderson drove a 1989, two-tone brown Ford Bronco. (15 RT 2441-2442; 16 RT 2520-2521, 2641- 2642, 2697; 18 RT 3072-3074; 19 RT 3196-3202, 3230, 3255; 20 RT 3470, 3484; 21 RT 3572-3573, 3584, 3618, 3637; 22 RT 3666-3667; 24 RT 4170; see 30 RT 5206.) | Handshoe, Huhn,their friend Zachary Paulson, and Huhn’s girlfriend, Valerie Peretti, frequently spent their time at Handshoe’s mobile home. (16 RT 2498, 2560-2562; 17 RT 2911-2912.) Handshoe’s mobile home was the “hangout place” for many in the area because Handshoe’s parents were rarely there and people could freely use drugs. (16 RT 2563, 2566; 17 RT 2885, 2925; 18 RT 3119, 3124-3126.) Handshoe, Huhn, Paulson, and Peretti ingested methamphetamineand/or marijuana on a daily basis,with the exception that Peretti stopped using methamphetamine in January 2003 after discovering she was pregnant with Huhn’s child. (16 RT 2559-2560, 2564, 2570-2571, 2659-2660; 17 RT 2889, 2916-2917, 2924-2927; 18 RT - 3125; 22 RT 3810-3812, 3879-3882, 3886.) None ofthem had jobs, so they sometimes stole items from cars to trade for drugs. (16 RT 2563; 17 RT 2890, 2927-2928; 22 RT 3814-3816.) Paulsontestified he was “pretty messed up” during the months preceding April 2003 due to drug use, and that Huhn and Handshoe were too. (17 RT 2926.) Sometimes they went on binges, meaning they continuously ingested methamphetamine for several days withoutsleeping. (17 RT2925-2926, 2948; 22 RT 3813-3814.) Peretti told police in May 2003 that Huhn’s “life is dope,” and that he did not care about anything else. (16 RT 2565.) - | Lee was a mutualfriend or acquaintance of the above group of . people; however, he generally did not visit Handshoe’s mobile home or ingest methamphetamine. (16 RT 2496, 2695; 17 RT 2862, 2865-2866, 2871-2872; 18RT 3115-3120; 22 RT 3797, 3930-3931; 23 RT 3953.) . . John Michels had gone to school with Handshoe, Huhn,and Lee, and he lived next door to Lee. (20 RT. 3479-3480.) Between November 2002 and April 2003, Anderson visited Michels’s mobile home aboutten timesto - do tattoo work for Michels. (20 RT 3468, 3472, 3475, 3479-3481.) Michels introduced Anderson to Huhn, (20 RT 3490-3491.) Beginning in January 2003, Anderson wasseen “quite frequently” at Handshoe’strailer by Karen. Barnes, one of Handshoe’s neighbors. (19 RT 3267-3269, 3278-3279.) Robert Forchette, an acquaintance ofHandshoe and Huhn,testified that about February 7, 2003, he wasin Handshoe’s mobile for a couple ofhours talking and watching television with Handshoe, Huhn, and Anderson.(22 RT 3727-3279, 3742.) Phone records showedthat between April 8 and April 17, 2003, there were 31 calls made between Anderson’s cell phone numberand the number ofthe phone in Handshoe’s mobile home, including seven on April 14— | twobefore 10:45 a.m., and five after 4:50 p.m. (16 RT 2499, 2500; 20 RT 3304-3308, 3316-3321, 3327-3332.) _ On April 14, 2003, Peretti was 15 years of age, Handshoe was 18, - Huhn and Lee were 22, and Anderson was 29. (1 CT 106; 16 RT 2555,. 2654.) 2. Anderson burglarizes homeof Bell family on January 8, 2003 ~ Arlene Bell lived on Lupin Way in an unincorporated area ofLa ~ Mesa. (19 RT 3169, 3180.) On January 8, 2003, Bell was gone from her homebetween about 12:00 p.m. and 1:30 p.m. When she returned home, | she found a glove in the driveway that did not belong to her. ¢19 RT 3169, 3174.) She also discoveredthat someonehad entered her house through a bathroom window and “tore up” everything inside. In particular, the drawers of a tool chest in the garage wereall open,all the drawers inher bedroom were pulled out, and her mattress wasflipped over. (19 RT 3169- 3170.) Things were missing from an entertainmentcenter and a bookcase. (19 RT 3170.) In addition, everything that was on top ofher dresser had been taken, including two or three jewelry boxes. (19 RT 3171.) One ofthe boxes had a label on the.bottom indicating it was made in Poland, (19 RT 3173.) A couple ofsilver coins were among the itemstaken. (19 RT 3 172.) It total, about 33 items had been stolen from the residence. (19 RT 3176.) Mostofthe items taken were smaller things—like the coins and jewelry boxes—that could be easily “fenced,” or sold for cash. (19 RT 3175.) - A short time later, while talking to a community service officer from the sheriff's department who had goneto her residence to take a report, Bell heard the ringing of a cell phone that did not belongto heror the officer. After a brief search, Bell found a cell phoneinside her home that apparently had fallen underneath a load of firewood. She gave the phonetotheofficer, whointurn providedit to Suzanne Fiske, a deputy with the sheriff's department. (19 RT 3173, 3181-3183.) About a month later, Deputy Fiske determined that the telephone number assignedto the cell phone belonged to Anderson. (19 RT 3220-3222.) . On April 24, 2003, Deputy Fiske searched Anderson’s residencein Poway, where she found the jewelry box made in Poland andthesilver coins taken from Bell’s residence on January 8. (19 RT 3223.) The box was recovered from Stevens’s bedroom, to which Anderson had regular access, (19 RT 3234, 3239.) Inside the jewelry box werecredit cards and an identification card in Anderson’s name. (19 RT 3226.) 3. Anderson burglarizes home of Dolan family on - April 9, 2003 , Mr. and Mrs. Dolan lived on Japatul Valley Roadin Alpine, a “country road”about halfa mile south ofInterstate 8. Michael Hansen, an officer with the San Diego Police Department, lived across the street from the Dolan’s house. (19 RT 3162, 3193.) In the afternoon on April 9, 2003, while tending his garden, Hansen heard Mr. Dolan’s truck, which had a distinctive sound, drive away from the Dolan residence. (19 RT 3193- 3194.) Mrs. Dolan hadleft the house in the morning. (19 RT 3164.) About halfan hourafter Mr. Dolan left, Hansen heard a different vehicle, that was “kind of loud sounding,” drive into the Dolan’s driveway, but didnot pay muchattentionto it. (19 RT 3194.) The driveway of the Dolan’s residence goesdown at a steep angle, and Hansen could not see cars parked in the driveway. (19 RT 3195, 3203.) Later, Hansen heard the vehicle leaving the Dolan residence. This time, Hansen focused on the Dolan’s driveway when he heard the vehicle, recalling that the Dolan’s had been burglarized a ‘couple of years before. (19 RT 3195.) Hansen saw a brownandtan, full- size, older model Ford Broncocrest the driveway ofthe Dolan’s residence and quickly drive away. (19 RT 3196-3197.) Mrs. Dolan returned homelater that afternoon to discover that the house had been burglarized. (19 RT 3164.) A thin white rubber glove,like the ones typically seen in a doctor’s office, was found in the driveway. (19 RT 3159-3160, 3217.) A window of a back door had been broken. (19 RT 3158, 3162, 3165; 21 RT 3216.) Inside the house, “there was glassall over,” and “dresser drawers and things were pulled out and . . . clothes were thrownall over.” (19 RT 3165; see also 21 RT 3216 [sheriffs deputy describing the majority of the house as having been “ransacked”.) Missing from inside the house was money,jewelry, a 22 caliber handgun, and agun holster. (19 RT 3158-3160.) Amongthe items ofjewelry taken were a locket and a ring with the inscription “Jenny”inside it. (19 RT 3165-3167.) _As with the Bell burglary,all ofthe items taken were relatively small in size and easily disposable. (19 RT 3168.) A sheriffs deputy attempted to find fingerprints at several locations throughout the house but was unsuccessful. (21 RT 3216-3217.) = | The following day, Hansen left his home and drove Weston Interstate 8 towards El Cajon. He saw merging onto the freeway a Broncothat looked like theone he had seen leaving the Dolan residence the day before. (19 RT 3198, 3205.) He followed the Bronco for about 10 to 15 minutes. (19 RT 3205-3206.) During that time, Hansen had two good opportunities to look at the driver, whom heidentified in court as Anderson. (19 RT 3198-320], 3206.) Hansen wrote downthe license plate numberofthe Bronco, and: provided that information to the sheriff's department. He also ran the license plate numberhimself, and learned thatthe Bronco wasregistered to Anderson. (19 RT 3199-3201, 3207.) | Several days later, Anderson gave the “Jenny ring” taken from the Dolan residence to the mother of a woman he had been dating. (21 RT 3606-3610.) And on May 16, 2003, when Anderson wasarrested in | Oregon, he wasin possession ofthe .22 caliber handgunstolen from the Dolan residence. (23 RT 4066.) | 4. Anderson conspires to commit burglary and robbery, and on April 14, 2003, murders Steven Bruckerin the course of that conspiracy Peretti testified under a grantof immunity. (16 RT 2653.) She testified that in the summerof2002, Lee told her and Huhn there wasa family living in El Cajon that had a safe containing $2 million. Lee urged Huhn to steal the money, and said he wanted 15 percentofit; Lee said he would not steal the money himself because he knew the family. (16 RT 2523-2530.) Peretti did not take Lee’s statements aboutthe safe seriously, and dismissed it as “crazy. talk,” and just a comment about a “pipe dream.” (16 RT 2964- 2965.) - Handshoetestified for the prosecution in accordancewith a plea agreement. Pursuant to the agreement, in exchange for Handshoe’struthful testimony,theprosecution agreed to let Handshoe plead guilty to a lesser charge ofmanslaughterfor his role in the murder, and further agreedthat - Handshoe would besentencedto total prison term of 17 years, (22 RT 3805-3810, 3875-3879.) Handshoetestified that on four orfive occasions between the summerof2002 and April 2003, Lee raised the topic of committing a robbery, and specified that he knew a house that contained a _ safe with about $1 millionin it. (22 RT3763-3770.) | | Paulsontestified that Lee madesimilar statements in his presence. According to Paulson, Lee raised the idea in January or February 2003 of 10 taking money from safe. (17 RT 2865-2869.) Paulson explained that Lee _ raised the issue while Handshoe, Lee, and Paulson were discussing how to obtain moneyto fundtheir drug habit. (17 RT 2865, 2902, 2961-2962.) Lee offered that he knew the ownerofthe El Cajon Speedway, andthat this person had lot ofmoney,“like a million dollars,” inside a safe. (17 RT 2866-2868.) Lee suggested that Paulson and Handshoe could “just go in . there and rob him,” and that he was “an older man”they could hold hostage. (17 RT 2869-2870.) Lee stated he could show them wherethe - house was, and that he wanted 15 percent of the money taken from thesafe. (17 RT 2871, 2882, 2959-2960.) Paulsontestified he didn’t think the suggested robbery wouldactually take place, but that Lee was just talking gibberish. (17 RT 2896-2897.) Paulsontestified that Lee raised the issue again about a month later, probably in March 2003, when Lee, Paulson, Handshoe, and Huhnwere sitting in Lee’s car. (17 RT 2871-2872.) Lee said he knew the nephew of the ownerofthe El Cajon Speedway, and that the owner hada lot ofmoney in a safe. (17 RT 2872.) Leesaid that Paulson, Handshoe, and Huhn should rob the owner. (Ibid.) Lee would not participate in the robbery, but would show them where the ownerofthe speedwaylived in exchange for 15 _ percent of the money. (17 RT 2872-2873, 2959-2960.) - Paulson considered Lee’s idea, as did Handshoe and Huhn. (17 RT . 2873, 2941.) Handshoe and Huhn talked about hiding out for awhile afterward ifthey committed the robbery, and Handshoefurthersaid he would leave the state. (17 RT 2874-2875.) Handshoe expressed to Paulson that he wanted to doit because he wanted the money. (17 RT 2873, 2959.) Paulson decided he wouldnotparticipate in the proposed robbery. (Jbid.) _ Paulson was present on a third occasion when the prospect ofrobbing the ownerofthe E] Cajon Speedway was discussed. This conversation occurred during the first week ofApril 2003 at Handshoe’s mobile home. 11 (17 RT 2876.) Present were Paulson, Lee, Handshoe, Huhn, someone named Jake, and Anderson. (17 RT 2876-2878.) Huhn said he could get into the safe; Anderson said he could hold the owner hostage and “pistol whip” him if necessary; Handshoesaid he could act as a lookout. (47 RT 2879.) Handshoeagainexpressed that he would leave townafter the robbery. (17 RT 2940.) Both Handshoe and Huhn said they would share someofthe money with Paulson and Jake. (17 RT 2940.) Steven Brucker owned the El Cajon Speedway. (See 15 RT 2394- 2395.) He lived on Medill Avenuein an unincorporated area of El Cajon. (15 RT 2382, 2401; 17 RT 2821.) The Bruckerresidence contained a safe, which was located in a back bedroom.(15 RT 2385, 2392-2393, 2402.) The safe was approximately 4 feet wide by feet tall, and employed a combination lock. (15 RT 2398.) The Bruckers kept guns and jewelry in the safe, and at most up to $2,000 incash. (15 RT 2387, 2393, 2398-2399, 2402.) Brucker had twocars that he generally drove: a red truck and a white jeep. (15 RT 2404-2405.) ° | | Lee had been friends with one ofBrucker’s sons,Eric, for a period of time inthe late 1990’s when they were in high school together. (15 RT 2382-2385, 2388, 2402.) Lee had workedat the El Cajon Speedway for a period oftime selling parking tickets. (15 RT 2389.) Lee also visited Eric at the Bruckerresidence 10 to 20 times. (15 RT 2384-2385.) Eric testified he was confident that Lee knew ofthe presence and location ofthe safe based on his time spent inside the house during thosevisits. (15 RT 2386.) On April 13, 2003, Anderson called Peretti’s house looking for Huhn. Later that day, Peretti sawAnderson at Handshoe’s mobile home; that was the first time she had met him. (16 RT 2601-2602.) She didn’t think anything ofhis presence, however, because she knew that Anderson owed -Huhn sometattoo work, and that Hubn had been trying to get Anderson to ~ do tattoo work for Handshoe. (16 RT 2603-2607.) 12 On April 14, 2003, about 12:30 in the afternoon, Peretti went to Handshoe’s mobile home. (16 RT 2500.) She was planning to meet Huhn ' there, and to go out with him to get something to eat and to see a movie. (16 RT 2501, 2667.) Peretti knocked on the door, and wasletin by Handshoe, who appeared to be underthe influence of drugs. (16 RT 2501- 2502, 2617-2620.) Huhn and Anderson werealso inside. (16 RT 2502.) . Whenshefirst walked in, Peretti sat down and asked, “where’s Apollo at?” (16 RT 2503.) Peretti sensed there was reluctance to her being _ there, and she recalled Handshoe saying to Anderson thatit was okay _.because she was Huhn’s girlfriend. (16 RT 2503-2504.) Handshoe explained to Peretti they were planning to rob someone. (16 RT 2535-2536, 2699.) Huhn expressed to Peretti he wanted hertoleave. (16 RT 2536- 2537.) Nonetheless, Peretti remained in the mobile homefor about 45 ‘minutes until the three menleft. (16 RT 2504.) . Perettitestified that during her time in the mobile home,the three men were doing different things at different times. (16 RT 2510.) Peretti saw Anderson “messing” with several handgunsthat were in a duffle bag. (16 RT 2504, 2507-2508.) Anderson also had another bag that contained what Peretti described as disguises. (16 RT 2508.) Specifically, the bag appeared to contain extraarticles of clothing, including shirts, gloves, ski-masks,and beanies. (16 RT 2508-2509, 2634.) Anderson was wearing a hair-piece or wig that went down overhis ears. (16 RT 2509, 2621.) Peretti described the color ofthe hair-piece as “dirty” or “salt and pepper.” (16 RT 2509-2510, 2621.) Anderson wasalso wearing thick reading glasses, a “trucker hat” (meaning a baseball cap made with mesh or screen material on the top part ofit), and gloves. (16 RT 2519, 2624-2625.) Handshoe and Huhntried on gloves from the bag. (16 RT 2519-2520.) At one point, Huhn wassitting next to Peretti while Anderson and Handshoetalked nearby about how they were going to commit the robbery. 13 (16 RT 2510.) Huhn wasnotdirectly involvedin the conversation with Anderson and Handshoeat that time because “he was too busy listening to [Peretti] yelling at him.” (16 RT 2512.) Peretti was angry at Huhn because she believed he was high on methamphetamine,and she could not get high with him dueto being pregnant. (16 RT 2666-2667, 2698.) Anderson asked for some paper, then drew a mapor diagram of a house and described how they were going to commit the planned robbery. (16 RT-2512-2515, 2640.) Anderson described how a certain doorwayat the house wassituated, and declared that he would stand overthe victim while Handshoe wentinside the houseto the safe. (16 RT 25 14-2515.) Anderson said there should be two vehicles at the residence where the robbery wasto take place: a red one and a white one. (16. RT 25 14.) At the time of the murder, Brucker’s red truck and white Jeep were both parkedin the driveway ofhis residence. (15 RT 2404-2405.) Anderson asked Huhn whetherhe was going to go with them,at which point Huhn joined the conversation with Anderson and Handshoe. (16 RT 2514-2515.) Huhn said he would go because Peretti was a bitch and he did not wantto sit there and listen to her yell at him. (16 RT 2550.) Peretti told Huhn she did not want him to go, but he chose to go anyway. (16 RT 2698-2699.) | - They discussed what they would do with the money they expected to get from the robbery; they all agreedthey would go shopping. “me RT 2516-2518, 2704.) Anderson pulled a large semiautomatic handgun from his waistband, pulled the slide back,andsaid, “Let’s do this fast.” (16 RT 2533-2534, 2538.) Peretti testified this resulted in a tense, scary moment. (16 RT 2673.) Shortly before the menleft the mobile home, Handshoesaid, “Let’s go do this before it gets too late.” (16 RT 2537.) Handshoe was armed with a small gun. (16 RT 2537-2538.) 14 Whenasked about the moodin the mobile home,Peretti testified it seemed as ifAnderson had donethis before. (16 RT 2516.) She further testified that Handshoe and Huhn were nervous and could not keep in one spot, and that she thought they were scared. (16 RT 2516-2517, 2673.) She admitted, however, that she had previously said in an interview that “they were almostexcited because they were going to comeinto a lot ofmoney.” (16 RT 2518.) Handshoe’s testimony largely corroborated Peretti’s. Handshoe testified to the following: he was inside his mobile home with Huhn, Peretti, and Andersonprior to the murder (22 RT 3792); Anderson was “jacking rounds,”i.e., ejecting rounds, from a handgun andsaid something to the effect of, “We’re goingto do this right” (22 RT 3792-3793, 3892- 3894, 3913); he gave Anderson a pen and paper and’Anderson drew ~ somethingon it (22 RT 3835); Anderson haddisguises in a duffle bag and wore a hair-piece and a hat (22 RT 3857-3860, 3911); there was discussion | about burglarizing a house (22 RT 3912); he understood from the discussion that he was to be the lookout (22 RT 3889; 23 RT 3955-3956); before leaving the mobile home, he armed himselfwith a .25 caliber semi- automatic handgun,“just to have it” (22 RT 3794). Handshoefurthertestified that Anderson waslike “a maniac with a gun,” and that he was afraid ofAnderson. (22 RT 3894-3895.) Handshoe told the jury he went with Anderson to the Bruckerresidence that day because he wasafraid ofAnderson and he wanted to help Huhn, whotold him he needed money because he had a child on the way. (22 RT 3791- 3792, 3841, 3895.) Handshoe claimed to have thoughtthey were only going to commit a burglary, and that he did not expect anyone to be at the residence. (22 RT 3896; 23 RT 4000.) | Handshoe, Huhn, and Anderson left the mobile home, and drove away: in Anderson’s Ford Bronco. (16 RT 2520-2521.) Peretti stood at the door to 15 the mobile home, and, as the Bronco drove away, she “flipped off” Huhn because she wasstill angry at him. (16 RT 2522-2523; 24 RT 4221.) - Anderson drove to the Brucker residence. (16 RT 2520-2522; 22 RT 3751-3752.) The Brucker house sits below the elevation of the roadway,at the end of a long driveway. (15 RT 2428-2429, 2433-2436.) Accordingto Handshoe, Anderson parked the Broncoin the Brucker’s driveway, near the street. (22 RT 3753-3754, 3865, 3867.) Anderson and Huhn gotout ofthe Bronco and walked down the driveway toward the front door ofthe house. (22 RT 3755.) Anderson was wearing a disguise, consisting of a “silverfish brown-gray” wig and a baseball cap. (22 RT 3761-3762, 3861.) He was also carrying a.45 caliber handgun tucked under his arm. (22 RT 3756.) Handshoe remained in the Bronco as a lookout; he was supposed toalert his confederates if anyone came toward the house by using a walkie-talkie Anderson had given him. (22 RT 3754-3755.) From his vantage pointin the Bronco, Handshoe could not see the front of the house where Anderson and Huhn walkedto. (22 RT 3755.) Within two minutes, Handshoe heard a gunshot and then heard Brucker scream. (22 RT 3757.) Anderson and Huhn ran back to the Bronco and got inside. Anderson drove the Bronco away from the area. (22 RT 3757-3761.) oe | | Ashe drove away, Anderson said things had gone wrong,and that he “shot the guy.” (22 RT 3759.) After a short while, Handshoe askedto belet out of the Bronconear his friend Rory Fay’s house, which was about two or three miles from Handshoe’s mobile home. (22 RT 3761-3762, 3870.) Before Anderson let Handshoe out, he told Handshoe and Huhn thatif they ' said anything, they “would be next.” (22 RT 3761.) - Four witnessestestified they saw a Bronco driving near Brucker’s residence the day ofthe murder. Kenneth Leonard testified he was “cut-off” by a “dark-colored vehicle, which [he] assumed was a Bronco atthe time,” 16 as it came outofthe Brucker’s driveway. (18 RT 2980-2981, 2984-2986, 2991.)’ Leonard was shown Exhibit 20, which contained four photographs ofAnderson’s Bronco. (15 RT 2441-2442; 18 RT 2982; 22 RT 3666-3667.) Leonardtestified that Anderson’s Bronco wasthe same modelas the one that cut him off, but that, due to how quickly the incident happened, he could not say if it was exactly the same one. (18 RT 2982, 2986.) He had previously told Investigator Baker that the Bronco he saw wasdarker, and had told police that it was black. (18 RT 2987-2989.) Leonard remembers seeing two figures in the Bronco, and thinks he told police that the driver might have been wearinga ball cap. (18 RT 2980, 2982.) ~ Penelope Hartnett testified that she lived just down the street from the Bruckers. (18 RT 2999-3000.) On the day of the murder, she “heard a loud rumble of a car zoomingbyreally fast, so it made me pop my headup to | look up, and I saw a brown Broncowith a beige bottom zooming by my house. .. .” (18 RT 3000.) Hartnett testified that the photographs of Anderson’s Broncoin Exhibit 20 looked “very similar” to the one she saw. (Ibid.) | Megan Guisti, who was 13 years ofageat the timeoftrial, testified that while riding her bicycle on Brucker’s street, she saw a tan Bronco being driven by aman with sunglasses and a mustache. She said the Bronco depicted in Exhibit 20 looked darker than the one she had seen. (19 RT 3258-3264.) Guisti had previously told Investigator Bakerthat the driver ~ also wore a hat. (24 RT 4170-4171, 4200-4201.) * Duringhis trial testimony, Leonard marked on Exhibit 13 the _ driveway from which the Bronco emerged. (18 RT 2980-2981.) That exhibit had been previously identified as an aerial photographshowing Brucker’s house and the surrounding residences. (15 RT 2435-2436.) During closing argument, Anderson’s attorney stated that Leonard indicated the Bronco emerged from the Brucker’s driveway. (30 RT 5207.) 17 Dustin Vangorkumlived near the Bruckers, and was working in front of his house the day of the murder. (18 RT 3083-3084.) He noticed a certain car drive by at a speed that wasa lot faster than mostcars. (18 RT 3084, 3086, 3090.) When asked if the Bronco depicted in Exhibit 20 looked like the car that he saw speeding, Vangorkum answered,“That is the vehicle.” (18 RT 3085.) He explained that the two-tone paintjob on the car was “pretty outstanding, and it’s a vehicle that we hadn’t seen in our neighborhoodbefore.” (/bid.) Vangorkum (a car enthusiast) (18 RT 3091) -further described the features ofthe Bronco that caught his attention:“The wheels andtires were distinctive. They had little oversizedtire on it. I’m not ~ I wasn’t sureat the time ifthat was distinctive to Broncosofthat year, but most distinctively what caught my eyeand attention wasthe exhaust.It didn’t really sound like a factory exhaust; it was a little deeperin tone, not more of a quiet exhaust or what anybody would typically put on a car.” (18 RT 3086.) Vangorkum stated theexhaust sounded “loud.” (/bid.) On cross- examination, Vangorkumtestified that he told police he believed the _ distinctive soundofthe Bronco came from a modified exhaust system, as opposed to a defective exhaust system,i.e., one without leaksin it. (18 RT 3093-3094.) However, he qualified that statement during his testimony by pointing out that he could not say definitively that it was modified without actually inspecting the car. (18 RT 3093.) . After being shot, Brucker called 911. A recording ofthat call was admitted in evidence and played for the jury. (15 RT 2323; 24 RT 4240- 4241; 8 CT 1635; 9 CT 1886.) According to a transcript of that recording, Bruckertold the dispatcher that two white males knocked on his door, and that one of the men shot him one timein the heart. (7 CT 1421-1424.) Deputy Sheriff Karl Miller responded to the residence. He found Bruckersitting on a stool inside the house, holding his left hand on his 18 chest. There was blood on his white shirt. (17 RT 2821-2822.) Brucker told Deputy Miller that two white males cameto his door, and that he opened | his door and told them to “get the fuck offmy property.” The males said something back to Brucker, who told them again to “get the fuck offmy property.” (17 RT 2823.) Bruckerreported that one of the men responded by saying, “fuck you,” and shooting him in the chest with an automatic weapon. (17 RT 2823-2824, 2838-2839, 2841.) Bruckertold Miller that his assailants were white males. He further described the shooter as being in his late 30’s, with hair and a full beard that were “salt-and-pepper” colored, and wearing a baseball cap and dark clothing;all he offered about the otherassailant was to say he looked to be about in his late 20’s. (17 RT 2825, 2832-2836.) Police found a .45 caliber shell casing outside the front door ofBrucker’s house. (17 RT 2824, 2826- 2827; 18RT 3009-3010.) They attempted to lift fingerprints from the shell casing, but could not obtain any with sufficient detail for comparison purposes. (18 RT 3008-3009, 3013-3014.) Bruckerlost consciousness while riding in an ambulance, and was pronounced dead at a hospital. (17 RT 2827.) An autopsy confirmed that Brucker suffered a single gunshot woundto the chest, and showedthat the projectile perforated the rightside of his heart. (18 RT 3056-3059.) 5. Anderson admits involvement in the murder to a roommate , Travis Northcutt, one ofAnderson’s roommates, spoketo district attorney investigator Steven Baker in September 2004. (20 RT 3505-3506; | 24 RT 4167-4168.) Northcutt was initially reluctantto talk, but eventually relented. (24 RT 4168.) He told Investigator Bakerthat he did not care for Anderson, and that Anderson wasan asshole. (24 RT 4182-4183.) Northcutt stated that sometime between December 2002 and April 2003, Anderson said to him that “he was coming along and that something big 19 was going to happen,a big hit that involved a safe,” and that Anderson asked him “ifhe wanted to be part of it.” (24 RT 4169, 4183.) Northcutt also stated that, while watching television with Anderson and Stevens, a newscastaired regarding the murder ofthe ownerofthe El Cajon Speedway. Anderson told Northcutt he was only the third person to know that Anderson wasinvolved, and to “keep his fucking mouth shut” or else. Northeutt “would be next.” (24 RT 4169-4170.) Finally, Northeutt told Investigator Baker he had seen Anderson wearing a goofy hairpiece, and that Anderson drove a Ford Bronco mostofthe time. (24 RT 4170.) 6. Anderson changes his appearance,flees to Oregon, gives a false nameto police, and plots his escape from jail On April 24, 2003, Anderson visited his formergirlfriend, Charlene Hause, and her mother to say goodbye. (21 RT 3573, 3582, 3609.) He told them he wasleaving the area. (21 RT 3575, 3609.) He explained to Hause that he was leaving town becauseofa parole violation, and that he was driving the white truck because “they” knew his Bronco. (21 RT 3574, 3582, 3583-3584.) Hause testified that Anderson had shavedthe mustache he had worn since at least January. (21 RT 3575.) Earlier that day, law enforcement agents had conducted a parole search of the Poway condominium where Andersonlived. (21 RT 3621-3622, 3631.) Anderson was not present during the search. (21 RT 3633-3634.) His Bronco, however, was parked in the carport. (19 RT 3233; 21 RT 3618-3619, 3622, 3634.) Stevens was takeninto custody and returned to prison for a parole violation based on the presenceofstolen property inside the condominium. (21 RT 3622, 3631-3632.) | On April 30, 2003, Andersonleft a voice message for Stevens’s parole agent. (21 RT 3629, 3632-3633.) Anderson was angry that Stevens had been returnedto prison based on the presenceofthe stolen property 20 inside the condominium,telling the agent, “It’s all fucking mine. Come and get me.” (21 RT 3629-3630.) On May 16, 2003, Anderson was stopped for speeding while driving Stevens’ white truck on Highway 20 in Harney County, Oregon. (23 RT 4061-4062, 4069.) He failed to provide an identification card or driver’s license to the Oregon State Trooper who stopped him, and verbally identified himself as James Stevens, with a date of birth ofNovember16, - 1973. (23 RT4062-4063.) The trooper determined there was no DMV record of such a person. (23 RT 4063-4064.) He also learned that the truck Anderson wasdriving “had a California felony status on it.” (23 RT 4064.) The trooper wasn’t sure what that meant, but it made him suspicious and he . searched the.truck. (23 RT 4064-4065.) He found a handcuff key, syringes, marijuana seeds, materials for making false identification cards, and two firearms: a .22 caliber handgun underneath the driver’s seat, and a shotgun in a toolbox in the bed of the truck. (23 RT 4066.) Based on the above circumstances, the trooper was concerned aboutpublic safety. ([bid.) To enable him to gather more information, he arrested Anderson under Oregon law for failing to present a driver’s license, and transported Andersonto jail. (23 RT 4067.) Oregon law enforcementofficials learned Andergon’s true identity the next day. (23 RT4082.) Oregon officials obtained a warrant and searchedthe truck Anderson had been driving. (23 RT 4082.) Items found inside the truckincluded the following: a laminated “U.B.C. scaffolding qualification”card in the name ofJames Stevens, but with Anderson’spicture on it (23 RT 4084-4085); four sheets ofpaper with several different signatures on it (23 RT 4086); four types of “whiteout,” a glue stick, a magnifying glass, several paintbrushes or “pen-type” items, blank self-laminating cards, self-adhesive labels, notary seals, a passport photo ofAnderson, and rubber stamps indicating “Original” and “Acknowledgment. Please sign and return 21 immediately” (23 RT 4088-4089); a book entitled “Counterfeit I.D. Made Easy” (ibid.); a certificate of completion in Anderson’s name for instruction in welding (23 RT 4089); a certificate of participation in Anderson’s name for an adult school, dated October 6, 1997 (23 RT 4090);a certificate in Anderson’s namefor vocational education in auto body and fenderrepair, dated September15, 1997 (ibid.); an unsignedcertificate ofbaptism with | the handwritten names of James Steven Hall, Steven Lee Hall, and Ruth Ann Powell onit (ibid.); a certificate of baptism with no namesonit other than the sponsoring names and a pastor’s signature(ibid.); aphotocopy of a birth certificate for Raoul Guivera indicating a birthdate ofMarch 9, 1970 (ibid.); six pages of blank certificates (23 RT 4091); five pages of blank baptism certificates (ibid.); a page showing different seals including various state seals (ibid.); a date stamp and embossing tool (23 RT 4093); and a Polaroid I-Zone digital camera (ibid. ). - While awaiting extradition to California, Anderson told acellmate that he had “warrants from California and wanted to get out ofjail” (23 RT 4025), and talked about escaping (23 RT 4008-4010, 4014-4016, 4033- 4043). The Harney County jail, where Anderson was housed, waslocated in the small town ofBurns, Oregon, which was “basically in the middle of nowhere.” (23 RT 4019.) The jail was staffed with no more than two guards at any given time. (23 RT 4101.) Anderson wasin possession of a handcuff — key; he told a cellmate he brought the key into thejail in his mouth. (23 RT 4013, 4035, 4042.) | Anderson plotted with one ofhis cellmates to overpowerthe guards. (23 RT 4010, 4014-4016, 4033-4034, 4043.) They would strip the guards of “money,radios,cell phones, if they had anything on them, and gag them and tie them and lock them in the cell and take everything away.” (23 RT 4034.) After locking the guards in the cell, they would take the guards’ keys and get the guns that were locked upin the jail, and steal a police car. 22 (23 RT 4036-4037.) Anderson said they would “shootit out with the copsif it came downto that.” (23 RT 4036.) At Anderson’s request, another cellmate provided him with a hand-drawn mapofthe town of Burns, depicting the location ofthe jail in relation to the rest of the town. (23 RT 4011-4012.) Oregon officials searched Anderson’s cell on July 3, 2003. (23 RT 4094.) Items found that were of interest to law enforcement included the hand-drawn mapdescribed above, a piece ofplastic that was “bent andis in a point formation,” three razor blades from disposable razors (found interspersed inside a deck of cards), two handcuff keys, a paperclip that had one ofits ends sharpened to a point, and twostaples. (23 RT 4095- 4099.) 7. While in jail awaiting trial, Anderson attacks a witness who testified against him at the preliminary examination In February 2005, while awaiting trial, Anderson was placed in the same area ofa jail facility as Paulson. Paulson hadtestified against Anderson in December 2003 at a preliminary examination. Anderson and four others dragged Paulsoninto a cell and beat him. (17 RT 2863-2864; 20 RT 3452-3456, 3464.) After the beating, Paulson was taken on a stretcher to a nurse at the jail. (20 RT 3423-3424.) She examined him, and then asked that he be taken to a hospital. (20 RT 3425.) Paulson was transported to a hospital where he received staple sutures to close a one-inch cutto his scalp. (20 RT 3425-3428.) | B. Defense Case Anderson did not testify, but called various witnesses in an effort to impugn the prosecution’s case in different ways. _ James Stevenstestified he met Anderson in 1996 when they became cellmates in prison. (27 RT 4747.) After Stevens wasparoled in the early 23 part of2000, helived in a condominium in Poway owned by his parents. (27 RT 4747-4748.) Anderson began living there too after he was paroled in the early part of 2001. (27 RT 4748-4749.) Between then and April 2003, Anderson and Stevens often worked construction jobs together. (27 RT | 4749-4751.) It was not unusual for Andersonto drive Stevens’s white Ford F-150, or for Stevens to drive Anderson’s Ford Bronco. (27 RT 4763-4765, 4767.) | | According to Stevens, Anderson was driving the white Ford F-150 on theday ofthe murder; the Bronco was in the condominium carport. (27 RT 4769, 4792-4793.) Andersonreturned to the condominium that evening. (27 RT 4772-4773, 4806.) Stevens did not recall anything unusual about Anderson when he returned, and they both went to work at the same construction job the following day. (27 RT 4773.) The contractortestified Anderson appeared calm at the job site that day, and he did not notice anything unusual about him. (27 RT 4730.) Stevens denied seeing news coverageofthe Brucker murderin the presence of Anderson and/or Northcutt, and denied ever hearing Anderson tell someoneto “shut the fuck up”while watching such a newscast. (27 RT 4763.) "Department ofMotor Vehicles records showed thatin April 2003, there were 1,501 Ford Broncos, model years 1985 through 1995, registered to people residing in the eastern San Diego County communities ofAlpine, El Cajon, Lakeside, and Santee. (27 RT 4851.) There were 559 such Broncosregistered to people in the communities ofLemon Grove, La Mesa, and Poway. (27 RT 4852.) Other evidence presented by Andersonrelated to the credibility ofthe prosecution’s witnesses, in particular Peretti, Handshoe, and Paulson. (See, | e.g., 24 RT 4300-4305 [when stopped by police while riding in a stolen car with Huhn on May 1, 2003, Peretti made no mention ofthe Brucker murder];26 RT 4481 [Paulson wasarrested May 9, 2003, for driving a 24 stolen car, possession of stolen property, and resisting arrest]; 26RT 4490- 4499 [evidence contradicting Handshoe’s claim during a “free talk” in April 2005 that he and Andersonset off an alarm at a homenear the ‘Brucker residence when they attempted to break into the home the day before Brucker’s murder ]; 26 RT 4556-4557 [Peretti’s long-time friend | testified that Peretti is a liar]; 27 RT 4667 [on May 15, 2003, Peretti denied to detectives that Huhn had been involvedin the murder in any way].) II. SUMMARYOF FACTS RELATING TO PENALTY A. Prosecution Case The prosecutor presented evidence that Anderson committed crimes on five occasions prior to the Brucker murder: one involved Anderson - shooting at a motorist; one involved the possession of stolen property; the other three involved residential burglaries. 1. Anderson shot ata motorist because she “aggravated” him with her driving On July 2, 1995, Dean Wall was a passenger in a truck being driven by Anderson in the area ofAlpine, California. (35 RT 5574, 5577.) Anderson was driving slowly, maybe 10 miles an hour under the speed limit, A car that was behind them passed in front of them. Whenthe car merged back in front of the truck, the driver used the blinker and “gave [them] plenty of room.” (35 RT 5575.) Nonetheless, Anderson said to Wall somethinglike, “That fucking bitch, who does she think sheis?” (35 RT 5576.) After a short distance, the car madea right turn at an intersection; Anderson rolled into the intersection and madea left turn. (35 RT 5574- - 5575, 5576, 5581-5582.) Anderson then reached hisarm through sliding window in the back ofthe truck and fired 12 roundsat the car from a .22 caliberpistol. (35 RT 5528-5529, 5574-5575.) Wall then fired one round 25 from a .357 Magnum atthe car’s tires in an attempt to disable it and prevent the driver from getting to a phone. (35 RT 5575.) A jogger flagged downa sheriffs deputy, reported the incident, and provided a description of the truck. (35 RT 5559-5560.) About two minutes later, the deputy saw the truck parked at a “map stop”off of Interstate 8. (35 RT 5561, 5571.) He positioned his patrol unit behind the truck, and approachedthe truck on foot. Anderson wasseated in the driver’s seat. (35 RT 5562.) The deputy saw the butt of a handgunsticking out from underneath the driver’s seat. The gun was a .22 caliber pistol. (35 RT 5563.) The pistol was unloaded, but there was a magazine containing eight rounds of .22 ammunition within inchesofit. (35 RT 5569-5570.) There were 32 rounds of .22 ammunition onthe front seat of the truck, and a full box of .22 ammunition in a briefcase. (35 RT 5570.) Wall had.a loaded .357 Smith and Wesson revolvertucked in his waistband. (35 RT 5564-5565, 5569.) Two expendedshell casings from a .22 caliber bullet were found in the bed ofthe truck, and one such casing was foundinside the cab ofthe truck. (35 RT 5556.) While in jail in Oregon, Andersontold a cellmate about the above incident. Anderson explained that he and someoneelse had been ontheir . way to a golf course to rob someone who had a Porsche. Another driver aggravated him and he “unloaded a clip at the car.” (35 RT 5545.). 2. Anderson was convicted of possessing a stolen car and three separate residential burglaries In April 1995, Anderson was convicted of one countofresidential . burglary and one count ofpossession of a stolen vehicle. In July 1995, in a | separate case, Anderson was convicted oftwo counts ofresidential | burglary. (35 RT 5557.) 26 B. Defense Case ~ The defense called Michael Masonas a witness. Masontestified that © he shareda jail cell with Huhn for three or four weeksin 2003. Duringthat time, Huhn said to Masonthat he personally shot Brucker, and that only he and Handshoeapproached the door ofthe residence. (35 RT 5614-5617.) Anderson refused to allow his attorneys to present any further mitigating evidence. (35 RT 5507.) However, over the objection of his attorneys (35 RT 5505-5507; 9 CT 1943-1944), Anderson made the following statement to the jury: | I’ve given alot ofthoughtto what I want to say to you guys, but, you know,start off [sic] is nine pages. I’m down to one page, because,basically, I think anything I say to you would be a wasted breath. In one ear, out the other. But I feel compelled to tell you two things: oneis that I don’t give a shit. Give me the death penalty. Ifyou believe I’m guilty, kill me. The secondis: I’m innocent. Your verdict was wrong, and I hope you all can’t sleep with yourselves. I don’t know what you expected from my attorneys. This ain’t Perry Mason or Matlock. No oneis going to run into a courtroom saying, “I did it.” What the hell did you expect? Did you not listen to the witnesses? Not a single piece of evidence. The Court: Mr. Anderson, I’ve indicatedto you you can make a statement in the form oftestimony. This is your chance to make a statementthat addresses mitigating factors. Ifyou wantto talk about the penalty that you feelis appropriate, I encourage you notto do that, but ifyou feel compelled to do that — but this is not a chance for you[to admonishthetrial jurors. Please proceed ifyou have something relevantto testify about. — 27 The Defendant: I really despise all ofyou and your decision. I don’t think you were reasonable or fair. Thanks for nothing. (35 RT 5622-5623.) 7 ARGUMENT J. - THE TRIAL COURT PROPERLY REFUSED TO SEVER THE TRIAL OF ANDERSON AND LEE BECAUSE THEIR DEFENSES WERE NOT ANTAGONISTIC AND THERE WAS SUBSTANTIAL INDEPENDENT EVIDENCE OF ANDERSON’S GUILT Anderson contendsthetrial court’s refusal to sever his case [from Lee’s constituted an abuse of discretion, and resulted in an unfair trial that violated his federal and state constitutional rights to due process of law, because Lee’s defense was antagonistic to his own defense. (AOB 37-44.) Respondentdisagrees. Lee’s defense was not antagonistic to Anderson’s case. Evenif it were, there was sufficient independent evidence proving. that Anderson murdered Bruckersuchthat severance was not required, and thejoint trial comported with principles of due process. A. Trial Court Proceedings - Beforetrial, Anderson filed a severance motion asking tobetried separately from his codefendants. (1 CT 155-156, 162-196.) Anderson | argued that severance was required becauseheanticipated the prosecution would introduce extrajudicial statements of his codefendantsat a jointtrial, and that the admission of such statements would violate the Aranda-Bruton rule. (1 CT 181-191; see People v. Aranda (1965) 63 Cal.2d 518; Bruton v. UnitedStates (1968) 391 U.S. 123 [88 S.Ct. 1620, 20 L.Ed.2d 476] [holding that a nontestifying codefendant’s extrajudicial statement that incriminates the other defendant is inadmissible as a violation ofthe latter’s rights to confrontation and cross-examination] .)He also claimedthat severance was required becausehe expected his codefendants to assert antagonistic defenses. (1 CT 192-195.) 28 Thetrial court denied the motion, but ordered that a separate jury hear the case against Huhn after the prosecutorstated his intention to offer in evidence extrajudicial statements made by Huhn. (3 RT 600-4 thru 600-10, 600-30 thru 600-31; 9 CT 1788; see People v. Cummings (1993) 4 Cal.4th 1233, 1287 [“The use of dualjuries is a permissible meansto avoid the necessity for complete severance”].) The court’s decision that antagonistic defenses did not require severance was informed byits review ofthe preliminary hearing testimony and the statementoffacts containedin the severance motions, and was based on its conclusion that “this does not appear to be a case in which a successful defense by one defendantwill preclude the acquittal of another, or the conviction of one will necessarily trigger the acquittal of another.” (3 RT 600-8.) The court explained: [T]he district attorney is perfecting the case on a felony ' _ murder theory and seeking to find each defendant guilty offirst- degree murder, based upon each defendant’s alleged role in the attempted or alleged attempted residential burglary and robbery. [{]] This does not appear to be a case in which the district attorney will toss the facts into a jury’s lap and ask the jury to sort out who is guilty ofmurder and whois not. The district attorney is contendingall four are equally guilty offirst-degree ~ murder. RT 600-8.) Ina later pretrial motion, Andersonjoined a request by Lee to sever the cases. (5 CT 1075-1080.) Anderson argued he should be tried separately from Lee for the same reasons he offered in his previous motion; namely, to avoid Aranda-Bruton issues and because he expected Lee’s defenseto be antagonistic to his own. (5 CT 1075-1080; 4 RT 673-679.) . At the hearing on the motion, Lee’s counsel said he would not contest the allegation that Anderson, Huhn, and Handshoe committed the murder. (4 RT 671) Instead, counsel explained, Lee’s defense would focus on the motivation for the murder,in an effort to show that Lee wasnot a party to 29 thealleged conspiracy that resulted in the killing ofBrucker. Toillustrate, counsel asked rhetorically, “[Was it in response to, you know, Professor Moriarty over here, the grand schemerhere, or was it for far different motivations? Either for Mr. Anderson’s personal motivations or because we have basically a junkie gang that decided to go for the bigger pot ofgold rather than breaking into cars to support their meth habit.” (4 RT 671.)* Anderson’s counsel claimed that Lee’s proposed defense required severance of the cases because it was exclusive of Anderson’s defense, stating that “our defenseis Mr. Anderson did not participate in the attempted robbery, burglary. He was notthere at the time of the homicide. Mr. Roake [Lee’s counsel] is saying that Mr. Andersondidthis out ofhis own motivations and on his own.” (4 RT 679.) | The court again denied the severance motion. (4 RT 689-691; 9 CT 1810.) The court explained: | I think it is fairly clear from the factual statements that have been providedin all these motions and previous motions — that the district attorney agrees in term of, I’Il call it transactional appearance andtransactional quality, that Mr. Lee is not in the same category as the other defendants. However, it’s the argument that he hatched the idea, he gave some background information, he’s encouraged, he’s an aider and abettor. And I don’t believe it’s that classic situation where alleged antagonistic defensesreally create prejudice. Thedistrict attorney is not trying to make Mr. Lee out as-a triggerman or as a getaway driver, or as a safe cracker, so I don’t feel that this issue ofweakness carries much weight because the People’s theory ofthe case, what’s been presented, I don’t think * “Professor Moriarty is a fictional character is some ofthe Sherlock Holmesstories written by Sir Arthur Conan Doyle. Moriarty is a criminal _ mastermind whom Holmesdescribes as the ‘Napoleon ofcrime.’” (“Professor Moriarty,” Wikipedia, The Free Encyclopedia, accessed February 26, 2015, http://en.wikipedia.org/wiki/Professor_Moriarty.) — 30. they’re trying to harness Mr. Lee’s culpability on the culpability of others. It’s here’s what he did, and legally this is why he’s culpable under a felony murdertheory. (4 RT 689-690.) B. Standard of Review A trial court’s denial of a motion to order that a defendantbetried separately from a codefendantis reviewed for abuse of discretion, in light of the circumstances knownto the court at the time of the ruling. (People v. Montes (2014) 58 Cal.4th 809, 835; People v. Turner (1984) 37 Cal.3d 302, 313 [“Although whattranspiresat trial determines the prejudicial effect of an erroneousruling on a motion for separatetrials, ‘[whether] denial of a motion to sever the trial of a defendant from that of a codefendant constitutes an abuse of discretion must be decided on the facts as they appear at the time of the hearing on the motion rather than on what 399subsequently develops.””].) However, even ifthe court did not abuseits discretion, a reviewing court “may nevertheless reverse a conviction where, because ofthe consolidation, a gross unfairness has occurred such as to deprive the defendantofa fair trial or due process of law.” (Peoplev. Turner, at p. 313; accord Montes, at p. 835.) . C. Governing Law The Legislature has expressed a strong preference forjoint trials. (People v. Souza (2012) 54 Cal.4th 90, 109; see § 1098.) Thus, defendants charged with the same crimes against the same victims mustbe tried jointly, unless the trial court orders separate trials. (People v. Gamache (2010) 48 Cal.4th 347, 381; People v. Carasi (2008) 44 Cal.4th 1263, 1296.) Here, the trial court was presented with a “classic case”forajoint | trial, because both Anderson and Lee were charged with the same crimes againstthe samevictim. (Souza, at p. 109 [defendants charged with having 31 committed “commoncrimes involving commonevents and victims” presents a “classic case”for ajointtrial].) This Court has stated that separate trials may be ordered where codefendants advanceconflicting, or antagonistic, defenses. (People v. Carasi, supra, 44 Cal.4th at p. 1296.) However, a mere conflict in defenses eee- is insufficientto requireseverance,“‘even ifthe defendants are hostile or attemptto cast the blame on each other.’” (People v. Hardy (1992) 2 Cal.4th 86, 168.) “If the fact of conflicting or antagonistic defenses alone required separatetrials, it would negate the legislative preferencefor joint trials and separate trials ‘would appear to be mandatory in almost every case.””(Ibid,, italics in original.) Rather, the conflict must be “‘so prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.” (Ibid.; see also People v. Letner (2010) 50 Cal.4th 99, 150 [““we have concluded thata trial court, in denying severance, abusesits discretion only when the conflict between the defendants alone will demonstrate to | - the jury that they are guilty”], italics in original.) Accordingly, ““{a]ntagonistic defenses do not warrant severanceunless the acceptance of one party’s defense would preclude acquittal ofthe other party.’” (Peoplev. Montes, supra, 58 Cal.4th at p. 835.) “‘When, however, there exists sufficient independent evidence against the moving defendant, it is not the conflict alone that demonstrates his or her guilt, and antagonistic defenses do not compel severance.’” (Carasi, at p. 1298, quoting People v. Coffman and Marlow (2004) 34 Cal. 4th 1, 41, italics in original.) | D. The Trial Court Properly Refused to Order Separate Trials of Anderson and Lee In light of the foregoing principles, the trial court properly denied the severance motion for two reasons: Lee’s defense was not antagonistic to 32 Anderson’s defense, and there was substantial independent evidence demonstrating Anderson’s guilt. These points are discussed in turn below. Atthe timeofthetrial court’s ruling, Lee’s anticipated defense was not antagonistic to Anderson’s defense. As previewed byhis attorney, Lee’s defense was that he wasneither an aider and abettor nor a coconspirator to the crimesthat resulted in the murder ofBrucker, regardless ofwhat he might have said about taking moneyfrom safe. (See 4 RT 671, 680.) The successofthis defense did not hinge on Anderson’s participation in the murder; rather, it depended on simply convincing the jury that whoever committed the murder did so independently of Lee. Thus, ajury could do both of the following: find that Lee’s talk aboutstealing money from a safe was wholly unrelatedto, or too attenuatedfrom, the actual commission of Brucker’s murderto hold him criminally liable, and, accept Anderson’s defensethat he had nothing to do with the murder, and believe that persons other than Anderson, for example the “junkie gang” of Huhn and Handshoeas suggested by Lee’s counsel (4 RT 671), perpetrated the murder in the course of a botchedburglary and robbery. Under these circumstances, severance was not required. (See People v. Hardy, supra, 2 Cal.4th at pp. 168-169 [defenses are not “antagonistic,” and severanceis not required, unless “acceptance of one party’s defense will preclude the acquittal of the other,” even where expected defenses are technically conflicting in the sense that multiple defendants deny culpability and speculate that one or more codefendants are responsible].) Moreover, at the time ofthe ruling, therecord revealed there was substantial admissible evidence of Anderson’s involvementin the murder independentofany conflict between the anticipated defenses of Lee and Anderson. Paulsontestified at the preliminary hearing that in early April 2003, while at Handshoe’s mobile home,he heard Anderson, Handshoe, and Huhn discuss plansto rob the owner ofthe El Cajon Speedway. 33 Handshoesaid he would be a lookout, Huhn said he would openthesafe, and Anderson said he would hold anyone hostage who appearedatthe scene, and that he would “pistol-whip”the victim if he tried to do anything. (1 PHT°164-167, 169; 2 PHT 235-236.) Peretti testified that about 12:30 in the afternoon on the day of the murder, she went to Handshoe’s mobile home where she saw Anderson, Handshoe, and Huhn. (3 PHT 462, 476.) Anderson was armed with a handgun, and worea disguise, including a “salt and pepper” colored wig or hairpiece. (3 PHT 484-485, 490-491, 570, 657.) Anderson declared they were “going to come up on some money,” and explained to Handshoe and Huhn how they were going to steal money from safe located inside a house. (3 PHT 480-484.) Peretti then watchedAnderson, Handshoe, and Huhn drive away in Anderson’s Bronco. (3 PHT 488, 492-493.) A witness saw a similar Bronco coming out of Brucker’s driveway. (6 PHT 1043- 1044.) Huhn returned to the mobile homeandtold Peretti that Anderson knocked on the door of the house, told Bruckerto get on the floor, and then shot Brucker in the chest after Bruckertold him to “F off... and that he — ain’t getting anything from him.” (3 PHT 489-500.) - Before he died, Brucker told a deputy sheriff that the person who shot him had “salt and pepper” colored hair. (2 PHT 332-333, 339.) Shortly after the murder, Handshoetold an acquaintance, Robert Forchette, that he had gone to a house with Huhn and a person named Stressed Eric,and that Stressed Eric shot someoneat the house. (2 PHT 389-393, 395.) Huhn told a friend, Melissa Adkins, that he had been present when the owner ofthe E] Cajon Speedway owner had been shot, but that he wasnot the shooter. (5 PHT 885-887.) Peretti told Adkins that Handshoe, Huhn,and Stressed Eric had set out to rob Brucker, and that Huhn was > PHTrefers to the Preliminary Hearing Transcript. 34 standing right next to Stressed Eric when Brucker wasshot. (5 PHT 887- 888, 902-904, 907, 913.) Peretti testified that Stressed Eric was a nickname for Anderson. (3 PHT 648; 4 PHT 786.) Theparties stipulated that Andersonhasa tattoo that says “Stressed Eric” on his right forearm. (4 PHT 787.) . Anderson’s formergirlfriend, Charlene Hause,told investigators that she last saw Anderson in April 2003. At that time he was driving a white | truck (she had previously only seen him driving the Ford Bronco) and had shaved off his moustache. (5 CT 931-932.) Anderson explained to Hause that he had done something andviolated his parole, and that “‘they knew his Bronco.’” (5 CT 932.) He also told Hause he was leaving for Las Vegas or Reno.(/bid.) The foregoing evidence constituted substantial evidence of Anderson’s guilt, anddid not depend on whether a jury would accept or reject Lee’s defense. Therefore, because the anticipated defenses were not antagonistic, and because there was substantial independent evidence ofAnderson’s guilt, the trial court properly denied Anderson’s request to be.tried separately from Lee. E. Evenif the Trial Court Abusedits Discretion Under State Law by Denying the Motion to Sever, the Error Was Harmless . Evenifthe trial court should have granted the motion to sever, Andersonis notentitled to relief unless he can show prejudice. (Peoplev. Coffman andMarlow, supra, 34 Cal.4th at p. 41 [Eveniftrial court | abusesits discretion in failing to grant severance, reversal is required only upon a showingthat, to a reasonable probability, the defendant would have received a more favorable result in a separate trial.”]; People v. Watson (1956) 46 Cal.2d 81 8, 836-837 [California Constitution precludes reversal 35 unless error results in a miscarriage ofjustice, which will be found onlyif, after an examination of the whole record, the court determinesit is reasonably probablethat a result more favorable to the appealing party would have been reachedin the absence ofthe error]; Cal. Const. art. VI, § 13 [“No judgmentshall-be set aside, or new trial granted, in any cause, . .. for any error as to any matter ofprocedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained ofhasresulted in a miscarriage ofjustice.”].) The joint trial here did not result in a miscarriage ofjustice. Lee offered no evidence designed to implicate Anderson in the murder; indeed, Lee did not testify or otherwise offer any affirmative evidenceat all. And, as anticipated, Lee’sdefense strategy was to convince the jury that the _ evidence failed to show he was even aware ofany actual plan to rob Brucker—muchless that he aided and abetted such a plan; instead, he argued, the evidence suggested thatthe “trailer tribe” ofHandshoe, Huhn, and Anderson committed the crime independentofLeefor the purpose of getting money to buy drugs. (See 29 RT 5139-5175 [closing statement by | Lee’s counsel].) As explained above,this defense was not antagonistic to Anderson’s, andin fact did not undermine Anderson’s ability to argueto . the jury that he wasnot involvedin the plan to rob Brucker. (See 30 RT 5188-5261 [closing statement of Anderson’s counsel, in which she argued that the evidence offered by the prosecution was insufficient to prove _Anderson’s involvement; counsel never once referred to Lee or his defense, or otherwise suggested that the jury must reject Lee’s defense in order to accept Anderson’s defense].) In addition to the fact that Lee’s defense did - not interfere with Anderson’s ability to present his own defense, the evidence presented against Anderson was strong, as discussed below. Paulson testified that during the first week of April 2003,at Handshoe’s mobile home, Anderson waspresent during a discussion about 36 a robbery that involved a safe. (17 RT 2876-2878.) During that discussion, Anderson said he could hold the victimhostage and “pistol whip” him if necessary. (17 RT 2879.) | Peretti testified to the following regarding the day ofthe murder: Anderson was at Handshoe’s mobile home with guns and a disguise (16 RT - 2500-2502, 2504, 2507-2510); Anderson talked about committing a robbery of a house with a red car and white car and a safe (16 RT 2510, 2512-2516); Anderson pulled a handgun from his waistband, pulled the slide back, andsaid, “Let’s do this fast,” after which he drove awayin his Bronco with Handshoe and Huhn (16 RT 2520-2521, 2533-2534, 2538). Handshoetestified that, on the day of the murder, Anderson wasin Handshoe’s mobile home with a gun and disguises, Anderson talked about burglarizing a house, and Anderson said somethingto the effect of, “We’re going to do this right.” (22 RT 3792-3793, 3857-3860, 3892-3894, 3911- 3913). Handshoe also testified that Anderson drove him and Huhn to the Bruckerresidence where Anderson approachedthe front door with a .45 caliber handgun,and thata short timelater, after a gunshot rangout, Anderson retumedto the car and admitted he had “shot the guy.” (22 RT 3751-3759.) | | Police found a .45 caliber shell casing outside the front door of Brucker’shouse. (17 RT 2824, 2826-2827; 18 RT 3009-3010.) Kenneth Leonardtestified that he saw a Ford Bronco, the same model as Anderson’s, coming out of the Brucker driveway the day ofthe murder. | “(18 RT 2980-2986, 2991; see 30 RT 5207.) Three other witnessestestified to seeing a Broncobeing drivenin the area the day of the murder. (18 RT 2999-3000, 3083-3085; 19 RT 3258-3264.) Finally, the prosecutor presented evidenceofthe following: Anderson admitted to Northcutt he was involved in the murder, and threatened Northcuttthat he “would be next”ifhe told anyone about Anderson’s 37 | involvement (24 RT 4169-4170); Anderson shaved his mustache, fled to | Oregonin his roommate’struck, gave a false nameto police in Oregon when he was stopped for speeding, and plotted to escape from jail after he was arrested (21 RT 3574-3575, 3582; 3583-3584; 23 RT 4008-4010, 4014-4016, 4033-4037, 4043, 4061-4063); the color ofthe wig that Peretti saw Anderson wearing when he left Handshoe’s mobile home was consistent with Brucker’s description of the hair color of the person who shot him (16 RT 2509-2510; 17 RT 2825, 2834-2836). | All ofthis evidence was independent ofLee’s defense, and highly incriminating ofAnderson. Anderson disputes the strength of the evidence offered against him, arguing that it was “unconvincing” because “built on the testimony ofthree untrustworthy teenage witnesses,” referring to Handshoe, Peretti, and Paulson. (AOB 42.) While each of these witnesses came with credibility issues, they were thoroughly cross-examined by three defense attorneys during thetrial. And their testimony wassubstantially consistent, which tendedto establish credibility. Also, as demonstrated immediately above, theprosecution presented other, credible evidence that corroborated important aspects ofHandshoe’sandPeretti’s testimony regarding the day ofthe murder, and that independently incriminated Anderson. Ultimately, the testimonyofthe prosecution witnesses, combined withall thetrial evidence, was compelling. In light of the whole record, and for the above reasons, it is not reasonably probable that Anderson would have obtained a more favorable outcomeifhe had been tried separately from Lee. Therefore, reversalis unwarranted even if the trial court abused its discretion by denying the pretrial motion to sever. 38 F. The Joint Trial did not Result in a Grossly Unfair Trial That Requires Reversal Under the Due Process Clause of the Federal Constitution A determination ofwhetherthetrial court properly denied the severance motion at the time it was made, and whether an improperdenial washarmless, does not end the inquiry because, even whena trial court properly deniesa pretrial motion for severance, a reviewing court must also consider the actual impact at trial of the joinder to determine whether “a gross unfairness has occurred such as to deprive the defendantofa fairtrial or due process of law.” (People v. Turner, supra, 37 Cal.3dat p. 313.) Anderson contendsthat histrial was grossly unfair for two reasons: because the acceptance of Lee’s defense by the jury necessarily signaled a rejection of his defense, and because, according to Anderson,“thetrial appeared to have three prosecutors instead of one against Anderson.. ..” (AOB 41.) These arguments lack merit. | _ Anderson’s claim thathis trial was unfair because the jury’s acquittal | ofLee necessitated the conviction ofAndersonis merely reiteration of his assertion that the defenses were antagonistic. As explained previously, the defenses were not in fact antagonistic. Moreover, antagonistic defenses alone are insufficient to establish that a trial was unfair. (See, e.g., People v. Turner, supra, 37 Cal.3d at p. 313 [stating that “no denial ofa fairtrial results from the merefact that twodefendants whoarejointly tried have antagonistic defenses and one defendant gives testimony that is damaging to the other and thus helpful to the prosecution”].) Equally unpersuasive is Anderson’s assertion that his trial wasunfair because the attorneys for Lee and Huhn “support[ed] the credibility” of Peretti and Handshoe—witnesses whose testimony implicated Anderson. Anderson argues that becauseofthis, “the trial appeared to have three prosecutors instead of one against Anderson,” a circumstance that 39 Anderson concludes, ipse dixit, was unfair. (AOB41.) This argument misses the mark, A trial is not unfair merely because a codefendant’s counsel choosesnotto attack the credibility of certain aspects ofthe prosecution’s case that are incriminating of the defendant. Instead, the relevant inquiry must focus on specific and significant prejudiceto the _ defendant, not on a more general “second prosecutor” theory. (See United States v. Balter (3rd Cir. 1996) 91 F.3d 427, 434.) This point is illustrated in People v. Jackson (1996) 13 Cal.4th 1164, In that case, the defendant argued he wasprejudiced by a jointtrial because his codefendant’s attorney servedin effect as a second prosecutor by bringing out in cross-examination on a numberofoccasionstestimony detrimental to the defendant. (Ud. at p. 1208.) This Court rejected that claim by focusing onthe fact that the defendantfailed to identify any evidence - elicited by his codefendant’s attorney that would have been inadmissible at a separate trial. (/bid.) This Court further observed: “The merefact that a damagingcross-examination that the prosecution could have undertaken was performed instead by codefendant’s counsel did not compromise any of defendant’s constitutionalor statutory rights.” (Ibid.) | Likewise, in this case, Anderson hasnot identified any evidence _ elicited on cross-examination by Lee’s or Huhn’s attorney that would have been inadmissible against Anderson at a separate trial. Therefore, the mere fact that they did not help Anderson attack the credibilityof certain aspects ofthe prosecution’s case did not result in a violation ofAnderson’s due processrights. | | Evenifthe consolidatedtrial resulted in a violation of due process, - reversal is unwarranted underthe harmlesserrortest articulated in _ Chapman v. California (1967) 386 U.S. 18, 24 [87 §.Ct. 824, 828, 17 L.Ed.2d 705], which appliesto trial errors that violate the federal | constitution. (Arizona v. Fulminante (1991) 499 U.S. 279, 306-308 [111 40 S.Ct. 1246, 1263-1264, 113 L.Ed.2d 302, 329-330].) “The Chapmantest is whetherit appears ‘beyond a reasonable doubtthat the error complained of did not contribute to the verdict obtained.’”(Yates v. Evatt (1991) 500 U.S. 391, 402-403 [111 S.Ct. 1884, 1892, 114 L.Ed.2d 432, 448].) For the same reasons discussed above in explaining why the consolidatedtrial did not result in a miscarriage ofjustice under California law, the record shows beyond a reasonable doubt that the consolidatedtrial did not contribute to the guilty verdicts against Anderson. Il. THE TRIAL COURT PROPERLY REFUSED TO SEVER THE BURGLARY CHARGES FROM THE MURDER AND CONSPIRACY CHARGES BECAUSE JOINDER WAS AUTHORIZED BY SECTION 954, THERE WAS CROSS-ADMISSIBILITY OF EVIDENCE, AND ANDERSON FAILED TO MAKE A CLEAR SHOWING THAT HE WOULD BE PREJUDICED BY A JOINT TRIAL Anderson contendsthetrial court abusedits discretion by denying his motion to sever the burglary charges from the murder and conspiracy charges, and that the consolidated trial was grossly unfair, in violation of his due processrights. (AOB 44-54.) To the contrary, the trial court properly denied the motion to sever the charges because joinder was authorized by section 954, there was cross-admissibility of evidence, and Andersonfailed to clearly establish there was a substantial danger of prejudice from a joint trial. Moreover, the jointtrial of the charges did not result in a grossly unfairtrial in violation of Anderson’s dueprocessrights. A. Trial Court Proceedings Anderson filed a motion seeking to have the burglary charges tried separately from the murder and conspiracy charges. (3 CT 621-638; 6 CT 1345-1348; 4 RT 691-693, 696-709.) Anderson argued that joinder was prohibited by section 954 because the burglary charges were not connected ‘in their commission to the murder and conspiracy charges, and they were a different class of crime than those charges. (3 CT 622-625.) Anderson | 4] further argued that, even ifjoinder ofthe charges was permissible under section 954, the court should exercise its discretion to sever the charges to avoid prejudice to his case and to ensure fairtrial. (3 CT 625-637.) Thetrial court denied Anderson’s motion. (9 CT 1810, 1819; 4 RT 709-713; 6 RT 1110-1112.) The court rejected the argument that joinder wasbarred by section 954 because it concluded the burglarycharges were the same class of crime as the murder and conspiracy charges within the meaning ofthat section. (4 RT 710.) The court further concluded Anderson had failed to establish that severance was otherwise required to protect him from suffering substantial prejudice at a joint trial. This conclusion was based on the court’s findings that there was some “cross-admissibility” of evidence, the alleged burglaries were “garden-variety residential burglaries” that are not inflammatory, the evidence in support ofthe burglaries did not appear to be comparatively weak or strong in relation to the murder and conspiracy charges, and there was no likelihood of “prejudicial spill-over of evidence” from the burglary charges to the murder and conspiracy charges. RT 710-713; 6RT 1110-1112.) | ; B. Standard of Review A trial court’s denial of a motion to sever charges is reviewed for abuseofdiscretion in light of the record before the court when it madeits ruling, and will be reversed only if its decision fell outside the bounds of reason. (People v. Soper (2009) 45 Cal.4th 759, 774.) However, even where a pretrial ruling denying severance was correct when made,reversal may be | warranted if a defendant shows on appeal that the joinderactually resulted in “gross unfairness,” amounting to a denial of due process.(Id. at p. 783; People v. Arias (1996) 13 Cal.4th 92, 127.) 42 C. Governing Law In theinterest of efficiency, “[t]he law prefers consolidation of charges,” and where the offenses charged are ofthe “sameclass,”orare “connected in their commission,”ajoint trialis authorized by section 954. _ (People v. Soper, supra, 45 Cal.4th at pp. 771-772; People v. Stanley (2006) 39 Cal.4th 913, 933; People v. Arias, supra, 13 Cal.4th at p. 126.) However,a trial court retains discretion to order that charges betried separately “in the interest ofjustice and for good cause shown.” (§ 954.) “When exercising its discretion, the court must balance the potential prejudice ofjoinder against the state’s strong interest in the efficiency ofa joint trial.” (Arias, at p. 126.) To show good cause for severance, a defendant must clearly establish there is a substantial danger ofprejudice from joinder of the charges. (Soper, at p. 773.) The potential for prejudice necessarily depends on the particular circumstancesofeach case. (Peoplev. Vines (2011) 51 Cal.4th 830,855.) | Asa general rule, joinder is proper when evidence ofthe offenses would be cross-admissible in separate trials, because an inference of prejudice “is thus dispelled.” (People v. Arias, supra, 13 Cal.4th at p. 126; accord People v. Soper, supra, 45 Cal.4th at p. 774-775.) “Conversely, however, the absence of cross-admissibility does not, by itself, demonstrate prejudice.” (People v. Vines, supra, 51 Cal.4th at p. 856.) Where evidence ofjoined crimes would not be cross-admissible in separatetrials, a court must consider “whether the benefits ofjoinder were sufficiently substantial to outweigh the possible “snill-over” effect ofthe “other-crimes” evidence on the jury in its consideration of the evidence of defendant’s guilt of each set of offenses.’ [Citations.]” (Soper, at p. 775.) The followingfactors are relevant to that assessment: (1) whether someofthe chargesare particularly likely to inflame the jury against the defendant; (2) whether a weak case has been joined with a strong case or another weak case sothat the totality of 43 the evidence mayalter the outcomeas to someorall ofthe charges; or (3) whether one ofthe charges(but not another) is a capital offense, or the joinder ofthe charges converts the matter into a capital case. (Ibid.) D. The Trial Court Properly Refused to Order a Separate . Trial for the Burglary Charges 1. Joinder was authorized under Section 954 Joinder was authorized under section 954 because the underlying motive for all of the charged offensestried to the jury was.to feloniously take moneyorproperty, and the modus operandi was similar in each iristance. | | Section 954 authorizes ajoint trial where all of the charged offenses were “connected together in their commission.” (§ 954.) This Court has interpreted the language “connected together in their commission”to encompass offenses committed at different times and places against different victims, when there is a “common element of substantial importance” among them. (People v. Matson (1974) 13 Cal.3d 35, 39.) | Thus, joinderis proper under section 954 when the charged offenses involve a felonious intent to obtain property (see People v. Chessman (1959) 52 Cal.2d 467, 492), or when they are committed pursuantto a similar modus operandi (see People v. Matson, supra,at p. 39). For example, in People v. Lucky (1988) 45 Cal.3d 259, this Court approvedthejointtrial of charges under circumstances very similar to this case. In thatcase,the trial court held a consolidatedtrial on two counts of robbery, based on twoseparate incidents, along with charges of attempted robbery and capital murder stemming from third incident. (7d. at p. 273.) This Court foundthat all the charged offenses were connected together in their commission because they were linked by a common elementof substantial importance:““[The] elementofintent to feloniously obtain property runslike a single thread through the various offenses. . . .” (Id.at 44 p. 276.) This Court further noted that the facts underlying the joined offenses shared certain characteristics: “the armed robber, usually joined by ‘an accomplice, victimized small businesses which were managed by few employees, sold specialized merchandise, and were located in the same geographical area.” ([bid.) In this case, like in Lucky, the element of intent to feloniously obtain property “runslike a single thread through the various offenses.” Also like in Lucky, the modus operandi wassimilar in each instance, in that Anderson victimized residential owners during midday in the East County area of San Diego. Therefore, joinder was authorized under section 954, 2. The trial court properly concluded that joinder would not prejudice Anderson Becausea joint trial ofthe charges was authorized under section 954, Anderson hasthe burden to makea clear showing ofprejudice, based on the record before the trial court at that time, to prevail on his claim that the trial court abused its discretion when it denied his motion to sever the charges. (People v. Soper, supra, 45 Cal.4th at p. 774.) In thetrial court, Anderson needed to makea particularly strong showing ofpotential prejudice—stronger than would normally be sufficient to exclude evidence ofuncharged offenses at a separate trial—to justify severance of charges that were otherwise properly joined under section 954. (/bid.) Thisis because the countervailing considerations of conserving judicial resources and public funds are present in the context of severance butabsent in the context of admitting evidence of unchargedoffenses at a separatetrial. (Ibid.) “[T]hese considerations often weigh strongly against severanceof properly joined charges.” (Ibid.) | . __ Thefirst step in assessing prejudice is to determine whetherthe evidence on each ofthe joined charges would have been admissible, under Evidence Code section 1101, in separate trials on the others; “if so, any 45 inference ofprejudice is dispelled.” (People v. Vines, supra, 51 Cal.4th at p. 856.) Based on the record beforeit, the trial court concluded the facts | surrounding the burglary offenses would have been admissible ina separate trial of the murder and conspiracy charges as evidence ofintent. As explained below,this conclusion was reasonable, and sufficientto dispel any inference ofprejudice. Anderson was charged with conspiracy to commit residential burglary and residential robbery. (1 CT 109.) To prove this charge, the prosecution neededto establish that Anderson conspired to commit one orboth ofthese target offenses. (See 8 CT 1612 [jury instruction on conspiracy charge].) As to the murder charge, it was prosecuted solely on the theory that Brucker waskilled during the commission or attempted commission of a robbery or burglary (see 8 CT 1601-1602 [instruction telling jury that to prove the murder charge the prosecution neededto prove that an unlawful killing occurred during the commission or attempted commission ofa robbery or burglary]; 29 RT 5123-5124 [prosecutor argued to jury that Anderson was guilty of first degree murder under felony-murder rule because Brucker was _ killed in the course ofan attempted burglary and/or robbery].) Accordingly, evidence tending to show that Anderson agreed with his coconspiratorsto commit, and in fact attempted to commit, a burglary of the Brucker residence would have been admissible in a separate trial ofthe conspiracy and the murder charges. As explained below, evidence ofthe Bell and Dolan burglaries was just such evidence. Under Evidence Code section 1101, evidence ofa defendant’s prior crimes may be admissible in a trial on new charges when relevant to prove somefact other than his disposition to commit such an act. (People v. Davis: (2009) 46 Cal.4th 539, 602; Evid. Code, § 1101, subd.(b).) For example, | evidence ofa defendant’s prior acts may be admissible to provethat, if he committed the alleged act, he did so with the intent that comprises an 46 element of the charged offense. (People v. Ewoldt (1994)7 Cal.4th 380, 394, fn. 2.) To be admissible for this purpose, the prior conduct and the currently alleged act “need only besufficiently similar to support the inference that defendant probably harbored the sameintent in each instance.” (People v. Yoeman (2003) 31 Cal4th 93, 121.) “‘The recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence orself-defense or good faith or other innocent mentalstate, and tends to establish (provisionally, at least, though not certainly) the presenceofthe normal, i.e., criminal, intent accompanying | such an act... .’” (People v. Scott (2011) 52 Cal.4th 452, 471, quoting 2 Wigmore, Evidence (Chadbournerev. ed. 1979) § 302, p. 241.) Further, “if a person acts similarly in similar situations, he probably harbors the same intent in each instance.’” (People v. Robbins (1988) 45 Cal.3d 867, 879.) | “The inference to be drawn is notthat the actor is disposed to commit such _acts; instead, the inference to be drawnis that, in light ofthe first event, the actor, at the time ofthe second event, must have had the intent attributed to him by the prosecution.” (/bid.) Evidence ofother crimes may also be admissible to prove that a defendant committed a charged offense pursuantto the same design or plan he used tocommitthose other, uncharged offenses. (People v. Ewoldt, supra, 7 Cal.4th atp. 393.) “‘The presence of a design or plan to do or not to do a given act has probative value to show that the act was in fact done or not done.””(/bid., quoting 1A Wigmore, Evidence (Tillers rev. ed. 1983) § 102, p. 1666.) “The existence of such a design or plan . .. may be proved _ circumstantially by evidence that the defendant has performed acts having - ‘such a concurrence of commonfeatures that the various acts are naturally to be explained as caused by a general plan ofwhich they are the individual manifestations.’ (2 Wigmore, Evidence (Chadbourn rev. ed. 1979) § 304,p. 249,italics omitted.) Evidence of a commondesign orplan,therefore, is 47 not used to prove the defendant’s intent or identity but rather to prove that the defendant engagedin the conductalleged to constitute the charged offense.” (/d. at pp. 393-394.) “To establish the existence of a common design or plan, the commonfeatures must indicate the existenceofa plan rather than a series of similar spontaneousacts, but the plan thus revealed need notbe distinctive or unusual.” (/d. at p. 403.) | “(T]he difference between requiring similarity, for acts negativing innocentintent, and requiring commonfeatures indicating commondesign, for acts showing design,is a difference of degree rather than of kind; for to be similar involves having commonfeatures, and to have commonfeatures is merely to have a high degree of similarity.”” (People v. Ewoldt, supra, 7 Cal.4th at pp. 402-403.) The information knowntothetrial court at thé time ofits ruling supports the conclusion that Anderson’s conductin committing the Bell and Dolan burglaries was sufficiently similar to his conduct in going to the Bruckerresidence not only to permit the inference that he probably harbored the same intent in each instance,i.e., to enter the homeandsteal property, but also to support the inference that all the offenses were manifestations of a common design or plan. The record showedthat the crimes related to the Bell, Dolan, and Brucker residences shared the following significant characteristics: (1) they occurred during midday (3 PHT 462, 476; 5 PHT 927, 933-934, 942); (2) within approximately a three-month period (3 PHT 462; 5 PHT 989, 933); (3) in neighborhoodsin theEast County area of San Diego (see 3 PHT 44; 5 PHT 927, 933, 939); and (4) there is some evidence the perpetrator wore gloves to avoid leaving fingerprints (3 PHT 492, 581-583; 5 PHT 972-973, 982-983). Taken together, this evidence supports a reasonable conclusion that Anderson acted out a predetermined plan or scheme to commit residential burglaries during midday in certain neighborhoods, and that he murdered Brucker 48 during one such attempted burglary on April 14, 2003. (Cf. People v. Scott, supra, 52 Cal.4th at pp. 471-472.) Therefore, this evidencewould have been admissible against Andersonin a separatetrial of the conspiracy and murder charges to provehis intent and to establish that he committed the murder in the course of an attempted burglary, which wasrelevant both to - prove the legal theory ofmurder presented by the prosecution and to establish the alleged special circumstances. The admissibility ofthe burglaries to prove the conspiracy and murder | chargesis sufficient to dispel any inference of prejudice from joinder; 999“two-way” cross-admissibility is not required.’” (People v. Zambrano (2007) 41 Cal.4th 1082, 1129, disapproved on anotherpoint in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; accord Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1221 [explaining that less than complete (or so- called two-way) cross-admissibility normally issufficient, standing alone, _to dispel any prejudice and justify a trial court’s refusal to sever charged offenses].)But cross-admissibility need not stand alonein justifying the trial court’s decision in this case, because no other factor relevant to the assessment ofprejudice suggested that severance was required. First, the trial court reasonably observed that the Bell and Dolan burglaries were “garden-variety residential burglaries”that were not inflammatory. (4 RT 713.) To be sure, the recordat the time ofthe ruling | showed that Anderson broke into the houses during the day while the residents were gone,andstole small items such as coins, jewelry, and jewelry boxes. (5 PHT 927-930, 942; 5 CT 931-932.) Second,thetrial court reasonably concluded that the evidence in support of the Bell and Dolan burglaries did notappear to be comparatively weak or strong in relation to the murder and conspiracy charges suchthat. the totality of the evidence mayalter the outcomeas tosomeorall of the charges. (6 RT 1111.) As explained in ArgumentI, sub-argument D,the 49 record at the time of the ruling on the motion revealed that the evidence relating to the murder and conspiracy charges was strong. And, as demonstrated below, the record revealed the same with respect to the burglary charges. Asto the burglary ofthe Bell residence, Anderson’s cell phone was found inside the house immediately afterward, and ajewelry box stolen from the homewaslater found in Anderson’s residence. (5 PHT 928-929, 974-979; 5 CT 931.) As to the burglary ofthe Dolan residence, an off-duty police officer, Matthew Hansen, saw Anderson’s Bronco comingoutofthe ‘Dolan driveway shortly before the burglary was discovered. (5 PHT 934- 936; 5 CT 931.) Anderson wasseen driving his Ford Bronco that same day, and the day after the burglary. (5 PHT 936-940; 5 CT 931.) In addition, Anderson gave to an acquaintancea ring that had been stolen from the ‘Dolan home, and, when he was later arrested in Oregon, was in possession ofa handgun stolen from the Dolan home. (5 CT 931, 932.) Finally, although the murder charge carried the death penalty, the evidence ofthe burglaries, as discussed above, would have been admissible to support the murder and conspiracy charge regardless ofjoinder. Therefore, the joint trial of the charges produced no additional prejudicein favor of capital punishment. (People v. Zambrano, 41 Cal.4th at p. 1130.) For the foregoing reasons, Andersonhasfailed to makethe clear showing ofprejudice required to establish that the trial court abusedits discretion in declining to sever the charges. | E. Even if the Trial Court Abused its Discretion Under State Law by Denying the Motion to Sever, the Error Was Harmless . Evenifthetrial court should have granted the motion to severat the time it was made, Andersonis notentitled to relief unless the consolidated trial of the charges resulted in a miscarriage ofjustice. (See People v. 50 Coffman and Marlow,supra, 34 Cal. 4th at p. 41; People v. Watson, supra, 46 Cal.2d at pp. 836-837; Cal. Const. art. VI, § 13.) The consolidatedtrial ofthe charges did notresult in a miscarriage of justice. As set forth above, there was some cross-admissibility of the evidence, which meansseparate trials would not have looked much different from the consolidated trial, especially with respect to the murder and conspiracy charges. Further, the evidence actually introducedattrial relating to the burglary charges was independently strong. Indeed,thetrial evidencerelating to the burglary charges tracked the evidence presented at the preliminary examination described above. (See 18 RT 3022-3024, 3069-3072; 19 RT 3158-3159, 3164, 3173, 3181-3183, 3195-3201, 3205- 3207, 3220-3223, 3226, 3234, 3239; 21 RT 3606-3610; 23 RT 4066.) The trial evidencealso included testimony that on April 30, 2003, Andersonleft a voice message for Stevens’s parole agent in which he expressed anger that Stevens had been returned to prison based on the presenceofstolen property inside the Poway condominium (which included property stolen from the Bell residence),telling the agent, “It’s all fucking mine. Come and get me.” (21 RT 3629-3630, 3632-3633.) Thetrial evidence relating to the murder and conspiracy charges was also strong. (See ArgumentI, sub- argument E, ante.) Therefore, it is not reasonably probable that a result more favorable to Anderson would have been reached had the burglary charges been tried separately from the murder and conspiracy charges. Accordingly, reversal is unwarranted evenifthe trial court abusedits discretion by denying the severance motion. F, The Joint Trial did not Result in a Grossly Unfair Trial That Requires Reversal Under the Due Process Clause of the Federal Constitution Whenreviewingthe denial of a motion to sever charges, a reviewing court mustalso consider the actual impact at trial of the joinder to 51 determine whether“a gross unfairness has occurred such as to deprive the defendantofa fair trial or due process of law.” (People v. Bean (1998) 46 Cal.3d 919, 940.) In determining whethera gross unfairness has occurred, a reviewingcourt looksto the evidenceactually introducedattrial. (Peoplev. Thomas(2012) 53 Cal.4th 771, 800-801.) As explained immediately above, theevidence introducedattrial was strong onall the charges. In addition, there is nothing in the record to indicate that consolidation of the charges resultedin a trial that was grossly unfair to Anderson, or had any impact on the verdicts. Therefore, the joint trial did not violate Anderson’s due processrights, and evenifit did, the violation was harmless beyond a reasonable doubt. III. THE TRIAL COURT PROPERLY EXERCISED ITS DISCRETION TO ALLOW EVIDENCE OF ANDERSON’S FLIGHT FROM SAN DIEGO, AND HIs PLANS TO ESCAPE FROM JAIL, BECAUSE IT WAS RELEVANT TO SHOW CONSCIOUSNESS OF GUILT Anderson contendsthe trial court abused its discretion by allowing evidenceofhis flight from California and ofhis plans to escape from the Harney County jail in Oregon. Respondent disagrees becausethetrial court | reasonably concludedthat the challenged evidence wasrelevant to establish consciousnessofguilt, and that it was not unduly prejudicial. Evenifthe court abusedits discretion by allowing the evidence, the error did not result ina miscarriage ofjustice and therefore reversal is not warranted. A. Trial Court Proceedings Andersonfiled a motion in limine to exclude evidenceofhis flight _ from California andofhis plans to escape from an Oregonjail. (4 CT 758- 767.) He acknowledged that such evidence could be relevant to showa consciousnessofguilt, but argued the evidenceshould be excludedin this case becauseits probative value was outweighed by the potential for undue prejudice. (/bid.; see Evid. Code, § 352.) Anderson pointed outthat he did 52 not leave San Diego until after he became aware there was going to be a parole search ofhis residence, which contained property taken during the burglary of the Bell house. (4 CT 762.) He also pointed outthat he “already had three strikes [on his record] and therefore faced a life sentence upon. _ any additional felony conviction.” (4 CT 763.) Anderson argued these | circumstances showedhefled San Diego out of concern over being prosecuted for burglary or possession of stolen property and being sentenced to 25-years-to-life underthethree strikes law, as opposedto out of-concern over being apprehended for the Brucker murder. (4 CT 762- _ 763.) Andersonfurther argued that forcing him to offer evidence that he hadthree strike offenses on his record to rebut the inference thathisflight and escape plans were a result of a consciousness of guilt related to the murder ofBrucker would be unduly prejudicial. (4 CT 763-764.) Lastly, with respect to his escapeplans, Anderson argued that the nature ofthe plans themselves, which involved “razor blades, handcuffkeys and... causing overt violenceto jail guards, if necessary,” would be unduly prejudicial. (4 CT 766.) _ Atthe hearing on the motion, Anderson reiterated the argument that the evidence did not support the conclusionthat he fled, or made plans to escape from jail, because ofthe Brucker murder, and that it would be unduly prejudicial ifhe were forced to offer evidence to explain hisflight and escape plans as relating to the fact that he had previously suffered three convictions for strike offenses. (6 RT 1030-1034.) He further argued that if | evidenceofhis flight and escape plans wereto be admitted, someofthe details should be excluded.In particular, he argued that items foundin his possession when he wasarrested in Oregon that suggest he was planning to apply for a passport in another name, and the details of the escape plans, should be excluded because they go “far beyond the evidence that wouldbe necessary to establish consciousness of guilt....” (6 RT 1040.) 53 Thetrial court denied Anderson’s motion to exclude the evidence. The court found that based on the prosecution’s offer ofproof, there appeared to be substantial evidence of flight from which a jury could reasonably infer a consciousnessofguilt. (6 RT 1037.) It further concluded that the probative value of that evidence was high and that, standing alone, there was no potential for undue prejudice. (6 RT 1037-1038.) The court acknowledged there would likely be prejudice ifthe defense attempted to explain Anderson’sflight by disclosing his criminalhistory, but concluded that was simply a factor the defense would need to considerin deciding whetherto offer such evidence. (6RT 1038.) The court also explained that. evidence suggesting an intention to obtain.a passport and flee the country wasprobative and not unduly prejudicial: “Thereis, in my mind atleast, a clear distinction between fleeing to San Bernardino, fleeing to Nevada, and fleeing to Canada. I — I don’t see that that’s cumulative or unnecessarily . prejudicial. And it appears to me to be probative ofthese issues thatare, . that courts have found, can be offeredto show consciousnessofguilt.” (6 RT 1042.) ‘B. Standard of Review An appellate court reviewsa trial court’s decision toadmit evidence using the deferential abuse of discretion standard. (People v. Scott, supra, 52 Cal.4th at p. 491.) “Judicial discretion ‘implies absence of arbitrary determination, capricious disposition or whimsicalthinking.It imports the exercise of discriminating judgment within the bounds of reason.’” (Cahill v. San Diego Gas & Elec. Co. (2011) 194 Cal.App.4th 939, 957.) An abuse ofdiscretion can not be foundifthere exists “a reasonable orfairly debatable justification under the law for the trial court’s decision... .” _ (/bid.) A judgment maybereversed for an alleged abuse of discretion only if in the circumstancesofthe case, viewed in the light most favorable to the decision, “the decision exceeds ‘the bounds ofreason’[citation], and 54 therefore ajudge could not reasonably have reached that decision under applicable law.” (Ibid.; accord Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479 [“The appropriate test for abuse of discretion is whetherthetrial court exceeded the bounds of reason. When two or more.inferences can reasonably be deduced from the facts, the reviewing court has no authority . to substitute its decision for that ofthe trial court.”].) Andersonbears the burdento prove thetrial court abusedits discretion. (Cahill, at p. 957.) C. The Trial Court Properly Exercised Its Discretion by Admitting Evidence that was Relevant to Establish Anderson’s Consciousness of Guilt Evidence of a defendant’s flight, or that he was planning an escape from custody, may permit an inference of consciousness of guilt. (People v. Perry (1972) 7 Cal.3d 756, 771, 778; see also People v. Morris (1991) 53 Cal.3d152, 196 [“Evidence of a planned escape permits an inference of consciousness ofguilty, even if the escape wasnotactually attempted.”].). Anderson acknowledgesthis, but contends that the evidence of such conductin this case was irrelevant becausethe circumstances demonstrate that hisflight from California and his plansto escape from jail in Oregon | were for reasons other than the Brucker murder. (AOB 60, 63-64.) In support of this contention, Anderson points out that when heleft town police had not yet suspected he was involved in the murder, his | condominium had just been searched (which contained property that could link him to the Bell burglary), and he told his former girlfriend that he was leaving to avoid a parole violation. (AOB 62.)With respect to-his plans to escape from jail in Oregon, Anderson addsthat he was not being held there for.the Brucker murder. (AOB 63.) Anderson’s contention lacks merit. The existence of explanations, other than consciousness of guilt ofthe crime charged, for conduct whichmay be interpreted as flight merely goes to the weightofthe evidence, notto its admissibility (People v. Perry, 55 supra, 7 Cal.3d at pp. 773-774); “[i]t is the jury’s function todetermine which of several possible reasons actually explains why a defendantfled” (id, at p. 772). The sameis true for evidence ofplans to escape from custody. (See People v. Kipp (2001) 26 Cal.4th 1100, 1126; People v. Morris, supra, 53 Cal.3d at pp. 195-196; People v. Remiro (1979) 89 Cal.App.3d 809, 845.) Aslong as there is some evidencethat could tend to connect a defendant’s flight or escape plans with the commission ofthe charged crime,a trial court’s decision to admit the evidence should not be disturbed on appeal. (See Perry, at p. 774; Evid. Code, § 210 [relevant | evidence includes evidence “having any tendencyin reason to prove or disprove any disputed fact that is of consequenceto the determination of theaction.”].) Here, there is sufficient evidence from which a jury could reasonably _ infer that Anderson’s flight and escape plans were connected with -Brucker’s murder. Prior to Anderson leaving town,a flier had been distributed at the El Cajon Speedway, and posted on the Crime Stoppers website, offering a reward for information leading to the arrest ofthe person who murdered Brucker. (26 RT 4506, 4514-4516.) There was also , evidence that Anderson had threatened Handshoe, Huhn, and Northcutt that they “would be next”ifthey said anything about his involvement in the | murder, reflecting his concern that persons with knowledgeofhis involvement could bring suspicion upon him. (22 RT 3761: 24 RT 4169- 4170.) Finally, Anderson fled using his roommate’s truckinsteadofhis Bronco (which had been seen coming outofthe Brucker driveway the day ofthe murder), and told his formergirlfriend just before leaving townthat he was not driving his Bronco because“they” knew it washis. (21 RT 3574, 3583-3584.) Anderson also contends that even if the evidence wasrelevant,its potential for undue prejudice outweighed its probative value because, in 56 order for Anderson to attempt to rebut the inference of a consciousness of guilt in the Brucker murder, he would be forced to reveal to the jury that he had previously suffered at least two.priorstrike convictions. (AOB 63.) — This argument lacks merit. Anderson’sability to offer an alternative explanation for his conduct did not depend on introducing evidence that he would be facing a life sentence as a third-striker for any future felony conviction. The evidence of the Bell and Dolan burglaries, the fact that Anderson was on parole, his awareness that his condominium had been searched, and his statement to Hause that he was fleeing because of a parole violation provided an ample foundation to make that argument. Moreover, Anderson offers no authority for the proposition that, in deciding whether to admit evidence offered by the prosecution,a trial court must consider the potentially inflammatory nature of evidence a defendant may choose.to offer to rebut the prosecution evidence. Finally, with respect to the evidence ofhis escape plans, Anderson contends the potential for undue prejudice outweighed the probative value because it showed him to be a criminal“inclinedto stealing the identities of others and using violence, exactly the type ofperson who would commit the current offenses.” (AOB 63.) Thetrial court reasonably rejected this argument. . | Evidence Code section 352 vests the trial court with wide discretion to exclude otherwise admissible evidence if, among other reasons, its probative value is substantially outweighed by the probability thatits admission will “create substantial danger of undue prejudice.” (Evid. Code, § 352.) “Prejudice is not so sweeping as to include any evidence the opponentfinds inconvenient.” (People v. Branch (2001) 91 Cal.App.4th 274, 286.) “The prejudice that section 352 is designed to avoid is not the prejudice ordamage to a defensethat naturally flows from relevant, highly probative evidence.” (People v. Zapien (1993) 4 Cal.4th 929, 958.) Rather, 57 evidence is unduly prejudicial under Evidence Code section 352 only when it “uniquely tends to evoke an emotional bias against the defendant as an individual and . . . has very little effect on the issues. [Citations].” (People v. Barnett (1998) 17 Cal.4th 1044, 1119.) The case ofPeople v. Remiro, supra, 89 Cal.App.3d 809, applied these principles to circumstances that are similar tothose here.In that case, the. defendant and his codefendant were prosecuted for murder and attempted murder. About a month before trial began,the defendants attempted forcibly to escape from jail. Before they were subdued) the defendant had knocked a guard to the eround, gougedhim in the eye, taken his keys, and inserted akey in the lock on a gun locker. The codefendant — had knocked another guard to the ground, stabbed him in the throat with a pencil and hit him repeatedly. (/d. at p. 845.) The Remirocourt rejected an argumentthat evidence ofthe attempted escape should have been excluded as unduly inflammatory because “[e]vidence ofthe defendants’ assault on their jailers was essential to prove the escape attempt and to permit the jury to assess the effect and value ofthe evidence on the issue of consciousness of guilt.” (Ibid) oe | Citing Remiro,the trial court here concluded the challenged evidence should be admitted. (6 RT 1038.) That conclusion was within the bounds of reason. Thedetails surrounding Anderson’s flight from California and his plans to escape from the Haney County jail were essential to convey to the jury the nature and extent of the effort Anderson wasinvesting, or planning to invest, in his attempt to avoid arrest, and to permit the jury to assess the value of the evidence on the issue of consciousnessofguilt. At the same time, there is nothing about the challenged evidence, in lightof the other evidence offered at trial, that uniquely tends to evoke an emotional bias against Andersonas an individual. Accordingly, it cannot be said that the trial court abusedits broad discretion in permitting the evidence. 58 D. Any Errorin the Admission of Evidence Was Harmless During the Guilt Phase of the Trial | Assuming, arguendo, the evidence should have been excluded, the failure to do so was harmless. Under California law, the erroneous admission of evidence does not warrant reversal unless the error resulted in a “miscarriage ofjustice.” (Cal. Const. art. VI, § 13; Evid. Code, § 353, subd.(b).) A miscarriage ofjustice will be found only if, after an | examination ofthe whole record, the court determinesit is reasonably probable that a result more favorable to the appealing party would have been reachedin the absence ofthe error. (People v. Watson, supra, 46 Cal.2d at p. 836; see also Peoplev. Coffman and Marlow, supra, 34 Cal.4th | at p. 76 [erroneous admission of evidence is reviewed under Watson standard].) - The case against Anderson wasstrong. Both Peretti and Paulson testified to being present when Anderson discussed plans to rob to the ownerofthe El Cajon Speedway(in Peretti’s case,this discussion occurred the same day as the murder); a Bronco similar to Anderson’s was seen leaving the victim’s house aroundthe time of the murder; Handshoe testified that Anderson drove his Bronco to the Brucker residence, approachedthe residence on foot armed with a .45caliber handgun, returned to the Bronco minuteslater, and admitted he “shot the guy”; police found a .45 caliber shell casing near Brucker’s front door; Peretti’s description ofAnderson’s wig matched the description of the hair of the shooter that Brucker gave to police; and Anderson threatened Handshoe, Huhn,and Northcutt that they would benext ifthey revealed his involvement in the murder. Thus, even if the evidence of Anderson’s flight and plans to escapejail had been excluded, there is no reasonable | probability that the outcome of thetrial would have been more favorable to Anderson. 59 Anderson contendsthe stricter harmless error standard for federal constitutional error should apply because the admission ofthe evidence violated his constitutional right to dueprocess of law. (AOB 64.) Respondentdisagrees. The admission of evidence will violate the federal constitution only whenit “so infuse[s] the trial with unfairness as to deny _ due process of law.”(Estelle v. McGuire (1991) 502 U.S. 62, 75 [112 S.Ct. 475, 484, 116 L.Ed.2d 385, 401]; accord People v. Falsetta (1999) 21 Cal.4th 903, 913 [“The admission of relevant evidence will not offend due process unless the evidence is.so prejudicial as to render the defendant’s trial fundamentally unfair.”]; Jammal v. Van de Kamp (9th Cir. 1993) 926 F.2d 918, 920 [Only ifthere are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must ‘be of such quality as necessarily prevents a fair trial.’”].) As demonstrated above, thetrial court’s exercise of discretion in admitting the evidencewasneither arbitrary nor capricious, nordidit exceed the bounds ofreason. Andsince the evidence was admitted for a permissible purpose and relevantto a contested issue,i.e., to establish Anderson’s identity as the murderer by showing consciousness ofguilt, - Anderson’strial was not fundamentally unfair and his due processrights were not violated. (See, e.g., Estelle v. McGuire,at p. 70; Jammalv. Van de Kamp, at p. 420; see also People v. Hovarter (2008) 44 Cal.4th 983, 1010 [“The ‘routine application of state evidentiary law does not implicate [a] defendant’s constitutional rights.’ [Citation.]”].) In any event, the admission ofthe evidence washarmless even under the federal standard. “The Chapmantest is whetheritappears ‘beyond a reasonable doubt that the error complained ofdid not contribute to the verdict obtained.’”(Yates v. Evatt, supra, 500 U.S. at pp. 402-403.) “To say that an error did not contribute to the verdict is . . . to find that error ' unimportantin relation to everything else the jury considered on the issue 60 in question, as revealed in the record.”(/d. at p. 403.) In light of all the evidence discussed abovedirectly linking Anderson to the murder, there is no reasonable doubtthat the admission of evidence ofAnderson’s flight and escape plans wasrelatively unimportant, and did not contribute to the guilt verdict. | E. ByFailing to Object or to Request a Limiting Instruction at Trial, Anderson Forfeited Any Claim That Evidence of His Flight from California and Plans to Escape from Jail Was Erroneously Admitted at the Penalty Phase; Any Error Was Harmless Anderson claims that even ifan erroneous admission ofthe challenged evidenceat the guilt phase did not result in prejudice with respect to the guilt verdict, it nonetheless resulted in prejudice with respect to the penalty verdict. (AOB 66-67.) This claim is misguided. Evidence that is inadmissible as to guilt is not invariable inadmissible as to penalty. In this case, for example, evidence ofAnderson’s criminality in 1995 was not admissible in the guilt phase (see Evid. Code, § 1101, subd. (a)), but was properly admitted at the penalty phase (see Pen. Code, § 190.3, subds. (b) & (c)). In any event, any error in the admission ofthe challenged evidence was not prejudicial at the penaltyphase such that reversal of the déath sentence is warranted. . Anderson doesnot assert or otherwise argue that the evidence of Anderson’s flight and escape plans was inadmissibleat the penalty phase; instead, his argument assumesthatif it was inadmissible at the guilt phase it necessarily would have been inadmissible at the penalty phase. But the evidence might have been admissible, for example, under section 190.3, subdivision (b), as evidence of criminal activity that involved the use or attempted use of force or violence or the express or implied threat to use force or violence (Anderson’s flight from California in Stevens’s truck involved criminal activity because Anderson wasa felon and he possessed 61 firearmsinside the truck). Further, Anderson did not requesta limiting instruction directing the jury to disregard such evidence during the penalty phase, nor did he object to the prosecutor’s reference to the evidence during argument. (34 RT 5455-5456 [only instructional issue identified by defense counsel related to whether jury should be told which statutory factors are considered aggravating versus mitigating]; 35 RT 5494-5496 [defense counseldid not seek limiting instruction during conference regarding penalty phaseinstructions]; 36 RT 5693-5694, 5698 [no objection during argument].) Therefore, Anderson failed to preserve the issue for appeal. | (See People v. Barnett, supra, 17 Cal.4th at p. 1168 [stating that defendant should have soughta limiting instruction during the penalty phase directing thejury to disregard evidenceof his nonviolent escape admitted during the guilt phase]; People v. Quartermain (1997)16 Cal.4th 600, 630 [finding that by failing to request a limiting instruction, the defendantfailed to preserve for appeal a challenge to the jury’s consideration during the penalty phase of evidence admitted during the guilt phase that defendant had usedracial epithets].) | | - Even if the evidence was inadmissible during the penalty phase, its admissionwas not prejudicial. The state standard ofreview for error at the penalty phase is amore exacting standard than thatfor state law errors at the guilt phase. (People v. Hamilton (2009) 45 Cal.4th 863, 917.)|“{W]hen faced with penalty phase error not amounting to a federal constitutional | violation, we will affirm the judgment unless we concludethere is a | reasonable(i.e., realistic) possibility that the jury would have rendered a different verdict had theerror or errors not occurred.’” (Ibid., quoting _ People v. Brown (1988) 46 Cal.3d 432, 447-448.) “When evidence has been erroneously received at the penalty phase, this court should reverse the death sentenceif it is “the sort of evidencethatis likely to have a significant impact on the jury’s evaluation of whether defendant shouldlive 62 or die.”’” (Hamilton, at p. 917, quoting People v. Danielson (1992)3 Cal.4th 691, 738.) The “reasonable possibility”test articulated in Brownis in substance and effect the same standard as the one employedfor federal constitutional error articulated in Chapman. (Hamilton, at p. 917.) Here, in context ofall the other admissible evidence, the evidence of © Anderson’s flight and escape plans was not prejudicial. During argument, the prosecutor correctly identified as aggravating factors Anderson’sprior violent crimes and criminal convictions, and the circumstances ofBrucker’s murder; the references to Anderson’s flight and escape plans was merely cumulative. (36 RT 5692-5697.) The prosecutor argued there were no mitigating circumstances (36 RT 5692, 5697); indeed, Anderson did not present any evidence of mitigating circumstances, he simply proclaimedhis innocence (35 RT 5623). Underthese circumstances, there was no reasonable possibility that the admission ofthe flight and escape evidence affected the penalty verdict. . IV. THE TRIAL COURT PROPERLY ALLOWED HANDSHOE TO TESTIFY BECAUSE HIS PLEA AGREEMENT WAS NoT UNDULY COERCIVE Anderson contends the admission ofHandshoe’s testimony violated his constitutionalrights to due process, a fair trial, and a fair and reliable guilt and penalty determination. (AOB 67-78.) Respondent disagrees. Handshoeproperly testified because his plea agreement required only that he testify truthfully and, therefore, was not unduly coercive. Even if Handshoe should not have been allowed to testify under California law, the — admission ofhis testimonydid notviolate due process, or, alternatively, any violation was harmless. A. Trial Court Proceedings Pursuant to a negotiated agreement, the district attorney allowed Handshoeto avoid trial on the charges against him by pleading guilty to 63 voluntary manslaughter and attempted residential robbery, and by admitting that he used a gun in the course ofthe offenses. (9 CT 1829-1830; 43 CT 9008-9009.) In exchange for being allowed to plead guilty to these charges, Handshoe agreed to cooperate in the prosecution of his codefendants by providing information to law enforcement officers and by testifying in court or before.a grandjury about the Brucker murder and any related matters. (43 CT 9008-9009.) Included in the written plea agreementis the following language: | On April 11, 2005, defendant gave a statementto investigators regarding his knowledgeofthe circumstances surroundingthe attempted robbery/burglary and murder of STEPHEN | | BRUCKER.Defendant confirmsthat his statementis true and accurate as to his observations, his actions, and the actions of ERIC ANDERSON, APOLLO HUHN and RANDY LEE. Defendant agrees to submit to subsequentinterviews if deemed necessary. Overridingall else, it is understood that this agreement extracts from BRANDON HANDSHOEan obligation to do nothing more other than to plead guilty to the listed crimesandtotell the truth, At all times the defendantshall tell the truth, and nothing other than the truth, both during the investigation and on the witness stand. Defendantshall tellthe truth no matter who asks the questions — investigators, prosecutors, judges or defense attorneys.It is further understood that defendantshalllose the benefits ofthis agreementfor any intentional deviation from the truth, and if a false statement occurs while he is on the witness stand, he shall be subjected to prosecution for perjury. . This agreement is automatically voided ifBRANDON HANDSHOEviolates his obligation to tell the truth or refuses to testify in any grand jury or court proceeding. However, everything defendant has told law enforcementofficers after the commencementofthis agreement can be used against him. (43 CT 9008-9009, emphasisin original.) 64 Andersonfiled a motion seeking an order to prevent Handshoe from testifying against him. (7 CT 1428-1431; 43 CT 8940-8941.) The basis of the motion was thatthe first paragraph quoted above made the agreement “explicitly conditioned upon the truthfulness of his April 11 statement.”(7 CT 1429; 43 CT 8941.) Anderson argued that the “combination ofthis explicit condition and Handshoe’s promisetotestify truthfully . . . binds Handshoe to testify in accordance with his pretrial statementto the authorities,” which violates the principle established in People v. Medina (1974) 41 Cal.App.3d 438,at page 455, that a defendant“is denied a fair trial ifthe prosecution’s case depends substantially upon accomplice testimony and the accomplice witness is placed, either by the prosecution or the court, under a strong compulsion to testify in a particular fashion.” (7 CT 1428-1429; 43 CT 8940-8941; see also 13 RT 2182 {Anderson argued ata hearing on the motion that any testimony from Handshoe would be “coerced” under the terms of the agreement].) Thetrial court denied the motion. The court found the plea agreement required Handshoeonly totestify truthfully, and thatit did not require him to testify in conformity with his prior statement. (13 RT 2233-2234; 15 RT 2275-2276.) B. Standard of Review __ An appellate court reviews de novo whether an agreement under which a witness testified was coercive, and whether the defendant was deprived of a fair trial by the introduction of the testimony. (People v. Jenkins (2000) 22 Cal.4th 900, 1010.) In conducting such a review, factual conflicts should generally be resolved in favor of the judgment. (/bid.) C. Governing Law The admissibility of a witness’s testimony thatis secured by a plea agreement dependson the terms of the agreement. When a witness agrees 65 to plead guilty to lesser offenses in exchange for his testimonyattrial, and the agreement with the prosecution places the witness undera strong compulsion to testify in a particular fashion,the testimonyis tainted and inadmissible. (People v. Garrison (1989) 47 Cal.3d 746, 768, citing People v. Medina, supra, 41 Cal.App.3dat p. 455.) “Such a ‘strong compulsion’ may be created by a condition “that the witness not materially or substantially change her testimony from her tape-recorded statement already given to . . . law enforcementofficers.””” (People v. Boyer (2006) 38 Cal.4th 412, 455.) “On the other hand, although there is a certain degree of compulsion inherent in any plea agreementor grant of immunity,it is clear that an agreement requiring only that the witness testify fully and truthfully is valid,’” (People v. Homick (2012) 55 Cal.4th 816, 862.) The assumption that the witness will receive the benefit of his bargain only if his testimony is beneficial or valuable to the prosecution is insufficient to undermine the | testimony: “‘Whatis improper. . . is not thatwhat is expected from the informant’s testimony . . . will be favorable to the People’s case, but that | the testimonymust be confined to a predetermined formulation or rendered acceptableonly if it producesa givenresult, that is to say, a conviction.’ [Citation.]” (People v. Garrison, supra, 47 Cal.3d at p. 769.) Thus, this Court has upheld-the admission oftestimony where the agreement “simply suggested the prosecution believed the prior statement | to be the truth, and where the witness understood that his or her sole obligation wasto testify fully and fairly.” (People v. Boyer, supra, 38 _ Cal.4th at p. 455,italics in original.) “Unless the bargain is expressly | contingent on the witnesssticking to a particular version,”the principle announced in Medina is not violated. (Boyer, at p. 456; see also People v. Homick, supra, 55 Cal.4th at p. 863 [stating that the principle announcedin _ Medinais violated “only when the agreement requires the witnessto testify 66 to prior statements ‘regardless oftheir truth,’ but not when the truthfulness ofthose statements is the mutually shared understanding of the witness and the prosecution as the basis for the plea bargain.”’].) D. Handshoe’s Testimony Was Properly Admitted Because His Plea Agreement Required Only That He Testify Truthfully Anderson contends the agreement between Handshoe and the prosecution “compelled Handshoetotestify in a particular way,i.e., to conform to his April 11, 2005, statement.” (AOB 71.) Anderson reaches ~ this conclusion by reasoning that Handshoe’spromise totell the truth, and his confirmation that his April 11 statenient was truthful, meant “that Handshoe’stestimony wasnotto differ fromhis April 1 1th statement or else the benefits to him from the agreement would be lost and he would be subject to a perjury prosecution.” (AOB 72.) . Anderson’s conclusion is a non sequitur. That Handshoe confirmed his prior statement wastruthful and promisedto testify truthfully in the future supports the logical expectationof consistency between the two, but only because both are represented to be rooted in truth, which is non- malleable. But the expectation of consistency does not derive from, nor doésit create, an obligation for Handshoeto conform histrial testimony to his prior statement simply for the sake of conformity and regardless of the ‘truth as Anderson suggests. Indeed, the following language quoted.from the agreementestablishes thattelling the truth, as opposed to mere conformity with his prior statement, was the only condition to receiving the benefits of the bargain: Overriding all else, it is understoodthat this agreement extracts from BRANDON HANDSHOEanobligation to do nothing more other than to plead guilty to the listed crimes andtotell the . truth. At all times the defendant shall tell the truth, and nothing other than the truth, both during the investigation and on the witness stand. Defendant shall tell the truth no 67 matter who asks the questions — investigators, prosecutors, judges or defense attorneys.It is further understood that defendantshall lose the benefits ofthis agreementfor any intentional deviation from the truth, and if a false statement occurs while he is on the witness stand, heshall be subjected to prosecution for perjury. (43 CT 9009, emphasisin original.) The termsofthe plea agreement in this case are distinguishable from terms that have been found to be coercive. For example, in People v. Medina, supra, 41 Cal.App.3d 438, orders pursuantto section 1324 granting immunity to three witnesses were “subject to the conditions that the witness not materially or substantially change her testimony from her tape-recorded statement already givento the law enforcementofficers on May 10, 1972, and not resort to silence, whetheror not underorder of contempt, nor feign lapse ofmemory to at least that much given in the aforementioned tape-recorded statement, for otherwise this order of immunity will be void and ofno effect.” (Id.at p. _ 450.) These conditions went“far beyond” requiring the witnessesto testify “fully and fairly as to their knowledgeofthe facts out ofwhich the charges arose.”(Id. at p. 456.) Indeed, the effect ofthese conditions was to place each of the witnesses “in a position of dire peril” because, regardless ofthe truth ofthe testimony,“[i]f his testimony “materially or substantially” differed from the prior recordedstatement he becameliable to prosecution for first degree murder and, having disclosed his participation, stogd little chance of escaping conviction.”(Jd. at p. 452.) Thus, the language explicitly conditioning immunity “upon the testimony being ‘the sameas [the witness] had already told the police’” was properly deemedcoercive. (dd. at p. 455.) | And in People v. Green (1951) 102 Cal.App.2d 831, “an accomplice _ wasinduced to testify by the promise that he would be granted immunity 68 | from prosecutionifhis testimony at the preliminary hearing resulted in the defendant’s being held to answer.” (People v. Garrison, supra, 47 Cal.3d at p. 769.) Because the promised benefit would be given only if the testimony produceda givenresult, the testimony was considered “impure, dubious, and ‘tainted beyond redemption.’” (/d. at p. 769.) | Here, in contrast, the agreement wasnot contingent upon Handshoe sticking to a particular version of events, nor was it dependent upon a particular outcome. Instead, the agreement expressly required that Handshoeonlytestify to the truth and nothing but the truth. Therefore, the agreement was not unduly coercive and thetrial court properly allowed Handshoeto testify. | E. Even If Handshoe’s Testimony Was The Result of a Coercive Plea Agreement, No Due Process Violation ‘Resulted from Its Admission Because the Prosecution’s Case Did Not Depend Substantially on ThatTestimony Even if Handshoe’s plea agreement can be considered unduly coercive, the admission ofhis testimony did not result in a violation of Anderson’s due processrights. Medina held that two conditions must be _ presentto result in an unfairtrial: the accomplice witness must be placed under a strong compulsionto testify in a particular fashion, andthe . prosecution’s case mustdepend substantially on that testimony. (People v. Medina, supra, 41 Cal.App.3d at p. 455.) In Medina, the court found that the testimony of the three accomplice witnesses “was the only evidence which could conceivably have influenced the jury to reach a guilty verdict.” (Id. at p. 456.) Here, in contrast, Handshoe’s testimony wasnot the sine qua non ofthe prosecution’s case against Anderson; rather, it was mostly cumulative of Peretti’s testimony, and there was additional independent evidence ofAnderson’s guilt such that it cannot be said that the prosecution’s case depended substantially on Handshoe’s testimony. 69 . The prosecution presented substantial evidence independent of Handshoe’s testimony that supported the jury’s guilty verdict. In particular, Peretti testified that shortly before the murdershe waspresentin Handshoe’s mobile home while Anderson planned with Handshoe and Huhn to commit an armed robbery/burglary of a house that contained a safe. (16 RT 2500-2503, 2510-2515, 2535-2536, 2640, 2699.) Anderson had guns and wore a salt and peppercolored wig. (16 RT 2504, 2507-2510, 2621.) Peretti watched as Anderson, Handshoe and Huhn drove away in _ Anderson’s Bronco. (16 RT 2520-2522.) Witnesses saw a Bronco similar to Anderson’sdriving on the street where Bruckerlived; one witness saw the Broncoactually coming outofBrucker’s driveway. (18 RT 2979-2986, 2991, 2999-3000, 3083-3087, 3090; 19 RT 3259-3265; 24 RT 4170.) Before he died, Bruckertold a deputy sheriffthat the person whoshot him had salt and pepper colored hair. (17 RT 2835-2836.) After the murder, Anderson threatened to harm Northcutt if he revealed his involvementin the murder. (24 RT 4169-4170.) Finally, ‘Anderson changed his appearance and fled town ten days after the murder, in a vehicleother than his Bronco. (21 RT 3574-3575.) Thus, the prosecution’s case did not depend substantially on Handshoe’stestimony. To be sure, Handshoe did not agree to testify for the prosecution until after jury selection had begun,and the case wasproceedingtotrial on the basis of evidence that was independent. ofHandshoe’s testimony. Moreover, the terms of the plea agreement were disclosed to the jury (both through his testimony and bythe admission of the written plea agreement as an exhibit), and Handshoe wassubjected to meaningful cross- examination, including questioning relating to the plea agreement. (22 RT . 3749-3751, 3803-3810, 3875-3879, 3902.) Therefore, the jury was allowed to factor the impact of the agreement into its assessment ofHandshoe’s credibility. 70 For all these reasons, the admission of relevant testimony by Handshoedid not violate the due process clause. (See People v. Falsetta, supra, 21 Cal.4th at p. 913 (“The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant’strial fundamentally unfair”); Estelle v. McGuire, supra, 502 US. at p. 75 [the admission of evidence will violate the federal constitution | only whenit “so infuse[s] the trial with unfairness as to deny due process of law.”’].) F. Any Error Was Harmless Assuming, arguendo,that the admission ofHandshoe’s testimony violated due process, reversalis not required because the violation was harmless beyond a reasonable doubt. (See Arizona v. Fulminante, supra, 499 US.at pp. 306-308 [federal harmless error standard appliestotrial errors that violate the constitution].) As stated above, Handshoe’s testimony _ relating to Anderson’srole in the murderwas largely cumulative to Peretti’s testimony, the only material difference being when Handshoe testified to his observations after he left the mobile homewith Anderson and Huhn. But even that testimony waslargely cumulative to other evidence; namely, eyewitness accounts of a Bronco-similar to Anderson’s near the Brucker home—including comingout ofthe Brucker driveway— and Brucker’s description ofhis killer’s hair color, which matched the color ofthe wig Anderson was seen wearing whenheleft the mobile hometo commit the robbery. Thus, there was substantial evidence independent of Handshoe’s testimony proving that Anderson murdered Brucker. Therefore, any error in the admission ofHandshoe’s testimony was “unimportant in relation to everything else the jury considered on the issue in question.” (Yates v. Evatt, supra, 500 US.at p. 403.) . For similar reasons, the evidence waslikewiseharmlessin relation to the penalty verdict. Anderson asserts Handshoe’s testimony about 71 Anderson’s “role in the crimes” wasprejudicial at the penalty phase becausethat testimony “may well have been what persuadedthejury to decide he was not only guilty but the most culpable defendant and should be punished [to] the maximum extent possible.” (AOB 77-78.) This - speculation is untenable in light of the whole record, which otherwise strongly supported the notion that Anderson wasthe leader and driving force behind the murder, and that he was the person whoactually shot Brucker. First, Anderson was several years older than Handshoe and Huhn, and had spenttimein prison. Second, Peretti’s testimony about Anderson’s conduct in the mobile home before the murder suggested that Anderson was the “heavy”ofthe bunch, and that Handshoe and Huhn were afraid of him. Third, Brucker told Deputy Miller that the shooter had salt and pepper hair, which matched the description of the wig Anderson wore when heleft the mobile home.Finally, Brucker described the shooter to Deputy Miller as being older than the other man who wasat his door when he wasshot. Therefore, the evidence invariably pointed to Anderson as the most culpable ofthe perpetrators, and Handshoe’s testimony was “unimportant in relation to everythingelse the jury considered onthe issue in question.” (Yates v. Evatt, supra, 500 U.S. at p. 403.) VY. THE TRIAL COURT PROPERLY EXCLUDED THE TESTIMONY OF A DEFENSE WITNESS BECAUSE THE PROFFERED TESTIMONY ‘WAS IRRELEVANT Anderson contends the trial court abused its discretion when it refused his request to present testimony from Andrea Finchthat Handshoe, Huhn, and Lee had access to guns anddisguises from a third person in the summer - of2002. (AOB 78-84.) To the contrary, because the offered testimony was irrelevant, the trial court acted within its discretion whenit refused to allow it. Alternatively, any error was harmless, 72 A. Trial Court Proceedings During its case-in-chief, Anderson offered the testimony ofAndrea Finch, who dated Ronnie Densford between 1992 and 2000, and continued “hanging out” at his houseuntil the summer of2002. (26 RT 4613, 4615.) According to Anderson’s offer of proof, Finch would havetestified that for some period of time until the summer of 2002, Handshoe and Huhn were close friends ofDensford and hungout at Densford’s house. During that period oftime, “there was access to weapons, specifically large-caliber automatic weapons, there was access to disguises, and there was access to vehicles.” (26 RT 4614.) Finch would furthertestify that she saw Densford display a large-caliber pistol in his waistband in the presence ofHandshoe and Huhn, and that Densford was a mechanic who hadaccessto all types of vehicles. (26 RT 4616.) Defense counsel explained this evidence wasnot being offered to establish third-party culpability, but to show that Handshoe . and Huhn “had accessto all of the items that have been described as having been usedin this particular crime through someoneother than Eric ~ Anderson.” (26 RT 4614-4615.) Upon questioning by the court, defense - counsel admitted that the guns and disguises observed by Finch belonged to Densford, not Handshoe or Huhn, and that Finch’s observations ofthese items ended in the summerof2002 when she stopped hanging out with _ Densford. (26 RT 4615.) The court refused to allow the evidence on the basis that, because Finch’s observations ended in the summer of 2002, it wasnot relevantto the events occurring in April 2003. (26 RT 4615.) The court furtherstated, | “I’m finding as to the probative value of summerof ’02,a third party | _ exhibiting a firearm has limited probative value and an undue consumption oftime.” (26 RT 4616.) Finally, the court found the suggestion that the Bronco usedin the murder was tied to Densford because he was a mechanic 73 and hadaccess to a lot ofvehicles in the summer of2002 was speculative. (26 RT 4616.) Ultimately, Finch testified for the defense that she had spent her wholelife in the area close to Rios Canyon, and that a Ford Broncois a commonvehicle in that area. (26 RT 4618-4619.) B. Standard of Review A trial court’s decision to exclude evidence is reviewed for abuse of discretion, and may not be disturbed on appeal except on a showingthat the court exercised its discretion in an arbitrary, capricious, orpatently absurd mannerthat resulted in a manifest miscarriage ofjustice. (People v. Gutierrez (2009) 45 Cal.4th 789, 827, 828; Cal. Const. art. VI, § 13; Evid. Code,§ 354.) | C. Governing Law Only relevant evidence is admissible at trial. (Evid. Code, § 350.) Relevant evidence is evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequenceto the determination of the action.” U/d., § 210.) A trial court “has considerable discretion in determining the relevance of evidence.” (People v. Williams (2008) 43 Cal.4th 584, 634.) Similarly, a trial court has “broad discretion” to exclude even relevant evidence for the policy reasonsarticulated in Evidence Code section 352. (People v. Merriman (2014) 60 Cal.4th 1, 60; see Evid. Code, §§ 351, 352.) D. The Trial Court Properly Excluded Irrelevant Evidence . Thetrial court’s decision to exclude the proffered evidencefell well within the court’s discretion. Thebasis ofthe court’s decision was that the offered evidence wasstale and-could only support speculative inferencesin - support ofthe defense. Given the roughly seven-month gapbetween the y 74 Brucker murder and Finch’slast observation ofDensford interacting with Handshoe and Huhn,andthe fact that there was no alleged uniqueness about the gun, disguises, or vehicles to which Densford had accessthat could tie them to the actual gun, disguises, and vehicle used in the murder, the court’s determination that the evidencehadlittle if any relevance, and was not worth the time it would take to present it, was eminently reasonable. Anderson offers no persuasive argumentto the contrary; he simply concludes, ipse dixit, that Finch’s testimony would have madeit less likely jurors would have rejected his defense that he was not involved. (AOB80.) | E. Any Error Was Harmless Even if the evidence was improperly excluded, it did not result in a miscarriage ofjustice and therefore does not provide a basis under California law to reverse the judgment. (See People v. Watson, supra, 46 ~ Cal.2d at p. 836; Cal. Const., art. VI, § 13; Evid. Code, § 354.) Noris there a basis to reverse the judgmenton federal constitutional grounds. Anderson claimsthat the exclusion of the evidence violated his due processright to present a defense, and that, therefore, the error is subject to the harmless error standard articulated in Chapman v. California, supra, 386 U.S.at p. 24. (AOB81.) Respondentdisagrees. Dueprocess requires states to afford criminal defendants “a meaningful opportunity to present a complete defense.” (Crane v. Kentucky (1986) 476 U.S. 683, 690 [106 8.Ct. 2142, 2146, 90 L-Ed.2d: 636].) That opportunity would be effectively denied if the state were permitted, in the absence of any valid state justification, “‘to exclude competent, reliable evidence when such evidenceis central to the defendant’s claim of innocence.” (Montana v. Egethoff(1996) 518 U.S.37, 53 [116 S.Ct. 2013, 135 L.Ed.2d 361}; quoting Crane, at p. 690.) Here, however, as explained above,the trial court reasonably and justifiably excluded the evidence, 75 whichhadlittle if any probative value. Thus, even if the court erred under California’s rules of evidence,the error did not violate a federal Constitutional right. As this Court has explained: [The defendant’s] attemptto inflate garden-variety _ evidentiary questions into constitutional ones is unpersuasive. “As a general matter, the ‘[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant’s right to present a defense.’ [Citations.] Although completely excluding evidence of an accused’s defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused’s dueprocessright to present a defense. [Citation] Ifthe trial court misstepped, . ‘(t]he trial court’s ruling was an error of law merely; there was no refusal to allow [defendant] to present a defense, but only a _ rejection of some evidence concerning the defense.’ [Citation.] Accordingly, the proper standard ofreview is that announced in People v. Watson {. . .| and not the stricter beyond-a-reasonable- doubt standard reserved for errors of constitutional dimension [Citation].” (People v. Boyette (2002) 29 Cal.4th381, 427-428; see also People v. Bacon (2010) 50 Cal.4th 1082 [stating that “only evidentiary error | amounting to a complete preclusion of a defense violates a defendant’s federal constitutional right to present a defense”].) | Finally, even if the decision to exclude the proffered testimony violated Anderson’s due processrights, the error was harmless beyond a reasonable doubt. The probative value ofthe offered testimony was speculative at best, and would have done nothing to underminethe strong | evidence ofAnderson’sguilt offered by the prosecution. VI. THE TRIAL COURT PROPERLY REFUSED TO ORDER THAT PERETTI PROVIDE A URINE SAMPLE FOR DRUG TESTING BECAUSE THERE WAS NO PROBABLECAUSE TO BELIEVE SHE WAS UNDERTHE INFLUENCEOFA DRUG WHILE TESTIFYING Anderson contendsthe trial court’s refusal to order drugtesting for Peretti violated his constitutional rights to confront and cross-examine 76 witnesses, to present a defense, and to a fair trial. (AOB 84-91.) This contention lacks merit because there was no probable cause to believe that Peretti was under the influence of a drug. Alternatively, any error was harmless and reversal is unwarranted. A. Trial’Court Proceedings During a break in the direct examination ofPeretti, defense counsel stated she had “a concern as to whether Ms. Peretti may be under the influenceassheis testifying today,” and requested the court to order that Peretti provide a urine sample for drug testing. (16 RT 2546.) Counsel stated that Peretti’s “demeanoris such that she’s constantly leaning, constantly locking herjaw, andis scratching herself. Given what I know of her history, I think it is — it would be quite likely that she is under the influence. And think if sheis, that the jurors would havea right to know aboutthat.” (/bid.) The prosecutor objected on the basis there was no authority for the court to order drug testing. (16 RT 2547.)The court denied the request. (16 RT 2548.) . - B. Standard of Review ©Theresolution of mixed questions of law andfact, like probable cause, usually is examined independently [citation], and the resolution ofa question offact, like any such question underlying probable cause, always is examined for substantial evidence [citation].” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 257.) C. Governing Law A defendanthas a constitutional right “to be confronted with the witnesses against him.” (U.S. Const., Amend. VI; Cal. Const., art. I, § 15.) The “main andessential purpose”ofthis right is to provide an opportunity for cross-examination. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678 {106 S.Ct. 1431, 1435, 89 L.Ed.2d 674, 683]; see Davis v. Alaska (1974) 17 415 US. 308, 315-316 [94 S.Ct. 1105, 1110, 39 L-Ed.2d 347, 353].) A defendant’s confrontation rights do not entitle him “on demandto subject a witness to a court-ordered physical intrusion or chemical test to determine whetherhe is underthe influence of an intoxicating substance.” (People v. Melton(1988) 44 Cal.3d 713, 737.) Witnesses, like defendants, have a constitutional right against unreasonable bodily searches, andthat right cannotbe violated on the authority of a defendant’s confrontationrights. (Id. at p. 738.) However, this Court has suggested that a trial court could order a witness to provide a urine or blood sample for drug testing if the circumstancessatisfied the test for “court-ordered intrusions beneath the body’s surface”articulated in People v. Scott (1978) 21 Cal.3d 284. (People v. Earp (1999) 20 Cal.4th 826, 882 [blood sample]; People v. Melton, supra, 44 Cal.3d at p. 738, 739, fn. 7 [blood or urine sample].) In Scott, this Court held that a trial court may authorize a search involving a “bodily. intrusion” only upon a finding of “probable cause to believe the intrusion will reveal evidence ofa crime,” and only after applying a balancing test “to determine whetherthe character of the requested searchis appropriate” under theparticular circumstancesofthe case. (Scott, at p. 293.) This additional balancing test “weighs the degree ofintrusion against the likelihood and importance ofrecovering the evidence.” (Melton, at p. 738.) “The necessary additional showing maybevery slight where only a | minimal intrusion, such as a bloodtest, is planned. But Scott makes clear that no intrusion may be ordered on a showing less than probable cause.” (Ibid, | | 78 D. The Trial Court Properly Refused to Order Drug Testing Because There Was No Probable Cause to Believe Peretti Was Testifying While Under the Influence of a Drug The record does not establish probable cause to believe that Peretti wastestifying underthe influence of drugs. An evaluation of whether probable cause exists must consider the totality of the circumstances; _ (People v. Earp, supra, 20 Cal.4th at p. 882.) Here, Peretti testified that she stopped using methamphetamine eight months before the trial. (16 RT 2574.) There was no other evidence offered on the topic. Thus,like in Melton,the only thing in the record that could possibly support the notion that Peretti was under the influence of drugs was defense counsel’s suspicion. (People v. Melton, supra, 44 Cal.3d at p. 738.) Absent an admission or other credible evidence that Peretti ingested drugs, counsel’s suspicionrelating to Peretti’s demeanoris insufficient to establish probable “cause. (See ibid.; People y. Dunkel (1977) 71 Cal.App.3d 928, 932 [The crucial test for probable cause to arrest for drug use depends upon the -manifestations of drug use identified by an experienced police officer.” Italics in original].) Accordingly, the trial court properly refused to order Peretti to provide a urine sample. E. Any Error Was Harmless Evenifthe trial court erred when it refused to order drugtesting for Peretti, the error was harmless under both the state and federal standards. Anderson argues to the contrary, asserting that Peretti’s credibility was crucial to the prosecution’s case and that, had drug testing shown Peretti was undertheinfluence during her testimony, her credibility would have been damagedtothe point that a more favorable outcome to Anderson was reasonably probable. (AOB 88-91.) This assertion lacks merit. | 79 First, nothing in the record establishesthat drug testing would have in fact revealed Peretti was under the influence of drugs; the record shows only the suspicion ofAnderson’s attorney. Thus, Anderson’s assertion of prejudice is based on mere speculation. | Second, even if Peretti were under the influence, the record doesnot support Anderson’s conclusion that evidenceofthisfact would have “severely minimized her credibility” with the jury. (AOB 90.) It is safe to say that the evidence had already otherwiseestablished that Peretti’s credibility was less thanstellar. For example, Peretti admitted during cross- examination that she had lied to Huhn abouther age when shefirst met him,telling him she was 18 when she wasnot even 15. (16 RT 249-2499, 2654-2655.) She also admitted that sheinitially lied to her parents about Huhn’srole in the murder. (16 RT 2551, 2683.) Peretti further admitted that, during some ofher many statementsto police, she “lied a lot,” and specifically identified as a “pretty big” lie her statements about Huhn’s involvement. (16 RT 2551, 2646-2647.) Patricia Ritterbush, one ofPeretti’s friends, testified she had witnessed Peretti make up stories about things that did not happen, andthat Peretti was a liar. (26 RT 4557.) Patricia Colgan, one ofthe persons who frequently spent time at Handshoe’s mobile home, . testified that Peretti “lies a lot.” (18 RT 3123-3124, 3137.) During closing | statements, the prosecutor acknowledgedthat the witnesses were not angels, and stated rhetorically that he would not be urgingthe jury to nominate Peretti for “motherofthe year and goodcitizen.” (29 RT 5082.) Finally, important parts of Peretti’s testimony were corroborated by other evidence. For instance, Handshoecorroborated her claim that shortly before the murder, while at Handshoe’s mobile home, Anderson drew something on a piece ofpaperand talked about committingthe robbery. (22 RT 3761-3762, 3792-3793, 3835, 3889, 3912-3913; 23 RT 3955-3956.) Handshoealso corroborated Peretti’s testimony that Anderson had a gun, 80 and that he wore a wig and a hat. (22 RT 3761-3762, 3792-3793, 3857-_ 3860, 3911.) Based on the foregoing, even if Peretti were under the influence of methamphetamine while testifying, and even if the court’s refusal to order a drug test was erroneous, with respectto both the guilt and penalty phases of the trial, the record establishes “‘beyond a reasonable doubtthat the error _ complained of did not contribute to the verdict obtained.’” (Yates v. Evatt, supra, 500 U.S.at p. 403.) VI. THE TRIAL COURT PROPERLY ALLOWED THE JURY TO HEAR THE SOUND OF ANDERSON’S FORD BRONCO BECAUSE THE _ SOUND WAS RELEVANT CIRCUMSTANTIAL EVIDENCE OF ANDERSON’S PARTICIPATION IN THE CRIMES —_ Anderson contendsthe trial court erred whenit allowed the jury to assemble outside the courthouse to view Anderson’s Broncoandto listen to the sound of the engine. (AOB 91-100.) Respondent disagrees. Witnesses- testified about the appearance and sound of the Bronco they saw near the Bruckerresidence the day ofthe murder. Seeing and hearing the Bronco wasrelevantto the jury’s determination of whether the Bronco that was seen and heard by the witnesses was in fact the Bronco that belonged to Anderson. Accordingly, the trial court did not abuse its discretion. Alternatively, any error was harmless. A. Trial Court Proceedings Duringits case-in-chief,the prosecutor asked the court to allow the jury to hear the sound ofthe engine ofAnderson’s Bronco because witnessestestified that it was loud, and because he believed it would benefit the jurors to hear the engine for themselves. (21 RT 3593.) Anderson objected on the groundthat the loudnessofthe engine was not being disputed; instead, the dispute centered around the cause ofthe loudness:“Isit a defective muffler, or is it a modified exhaust system,as 81 Mr. Vangorkum thoughtit was?” (21 RT 3592.) Anderson arguedthat hearing the engine would not be helpful in resolving that issue. (21 RT 3593.) Anderson further argued that because the Bronco had beensitting outside in the elements, .and not run,for approximately two years it would not sound the sameas it did at the time ofthe murder. (21 RT 3592-3593, 3594-3595.) The prosecutor countered by offering thatthe detective could establish that the Bronco sounds similar to the way it sounded when it was impoundedshortly after the murder. (21 RT 3595.) Anderson also expressed concern about transporting the Bronco from the sheriffs impoundyardto the courthouse based on information that the muffler was rusted and loose, and was being held in place by a wire. (21 RT 3592, : 3656-3657.) Finally, Anderson objected on the basis that “the conditions under which this experimentis going to be undertakingare very, very _ dissimilar”to the conditions under whichthe Bronco wasobserved on the day ofthe murder, (22 RT 3659.) The prosecutorclarified he did not plan to conduct an experiment, and that the Bronco “is simply going to bestarted - ‘so that the jurors have an opportunity to hear the loudnessorlack thereof of the vehicle.” (22 RT 3661.) Thetrial court overruled the objection: I see this as simply a tidbit of circumstantial evidence.It’s relevant in termsofthere’s been testimony that this particular Ford Bronco has some unique characteristics. So, to me, it’s similar to anytype of eyewitness identification issue.[J] Ifa witness says, ‘all I can tell you, it was a medium-sized, white male,’ that’s not very helpful, not persuasive. If the witness says, ‘it was a medium-sized, white: male with a husky voice,’ that’s anothertidbit of circumstantial evidence, and I see that’s what the peoplearetrying to present. As to the weight to give to this, might be another issue. (21 RT 3596.) Before the jury was taken outside to see the Bronco, Detective Goldbergtestified that the Bronco belonged to Anderson, and that it was 82 impounded on May 13, 2003. Since that time, the Bronco had beensitting in a sheriff's impoundlot in the City ofEl Cajon. Arrangements were made to have the Bronco transportedto the courthouseto be started for the jury’s _benefit. (22 RT 3667-3668.) After Detective Goldberg’s testimony, the court adjourned and then reconvened outside the courthouse near the Bronco. (22 RT 3680.) _ Defense counsel raised more objections. She noted that the Bronco was on flatbed tow truck with a metalfloor, and sat approximately four feet off the ground.“Ifthis vehicle is started up in the positionthatit is in, the soundis going to be reverberating off the metalthat it’s placed... on top of,... It’s going to sounda lot louder.” (22 RT 3681.) Counsel also complainedthat a building was situated about 40 feet from theright side of theBronco, and another building was “even closer” to the front ofthe Bronco. Counsel argued that these conditions werenot similar to those whenthe truck was seen and heard by witnesses on the day of the murder. (22 RT 3681.) The court overruled the objections. (22 RT 3683.) The court : did, however, grant Anderson’s request to have the jury lookat the | undercarriage of the Bronco, in particular at the exhaust system, given that it was on a raised platform andin plain sight. (22 RT 3682-3684.) The Bronco wasstarted for the jury. (22 RT 3684.) B. Standard of Review A trial court’s decision to admit evidence is reviewed on appeal using the deferential abuse of discretion standard. (People v. Scott, supra, 52 Cal.4th at p. 491.) . | 83 C. The Trial Court Properly Exercised Its Discretion by Allowing the Jury to Hear the Sound of Anderson’s Bronco Because It Was Relevant to Establishing the Identity of the Murderer Anderson contends the court abusedits discretion by allowing the _ jurors to hear the sound of the Bronco because the conditions under which they heard it were different from those on the dayofthe murder, and because the Bronco had been “sitting outside, unprotected and exposed for two years.” (AOB 95.) For these reasons, Anderson argues, allowing the jury to see and hearthe Bronco was misleading andirrelevant. (AOB 95, 97.) Anderson’s argument is unpersuasive; the evidence tendedto establish Anderson’s identity as the murderer and therefore wasrelevant to a material issueat trial. Evidence offeredat a trial can be anything “presented to the senses,” including sounds. (Evid. Code, § 140; Cal. Law Revision Com. com., Deering’sAnn. Code Evid. (2004 ed.) foll. § 140, p. 15.) As with evidence of other things presented to the senses, evidence of a sound must be relevant to be admissible. (Evid. Code, § 350.) Relevant evidence includes ‘evidence “having any tendencyin reasonto proveor disprove any disputed fact that is of consequence to the determination ofthe action.” (Evid. Code, § 210.) | The sound ofAnderson’s Bronco wasrelevantto identify Brucker’ S killer, which wastheprincipal issue contested at trial. Vangorkum and Hartnett described the sound of the Bronco they had seen speeding near Brucker’s house the day ofthe murder as “loud” and “very loud.” (18 RT 3002, 3086.) The defense presented evidence to try to convince the jury that it was not Anderson’s Bronco. (See, e.g., 27 RT 4769, 4792-4793 [Stevens testified Anderson drove a white Ford truck the day ofthe murder, andthat Anderson’s Bronco wasparkedat their condominium in Poway], 4851- 4852 [evidence that in April 2003 there were more than 2000 older model 84 Ford Broncosregistered to people in the East County area of San Diego].) If Anderson’s Bronco soundedloud or very loud, that would be one piece of evidence that could support the prosecution’s theory that the Bronco seen by the witnesses belonged to Anderson, and that Anderson wasdriving it; if it did not sound loud, that would be one piece of evidence that could support the defense theory that the Bronco seen by the witnesses did not belong to Anderson and that someone other than Anderson was drivingit. Therefore, the sound of Anderson’s Bronco had sometendencyin reason to prove or disprove a disputed fact that was material to the determination of the case. Anderson complains that the conditions under which the jury heard the Bronco weredifferent than the conditions on the day ofthe murder, and that the Bronco hadbeensitting in an impoundyard for two years. But these facts are not dispositive; they were obvious to the jury, and only affected the weight of the evidence, not its admissibility. (See People v. Alcala (1992) 4 Cal.4th 742, 797 [finding that under broad definition of relevant evidence,trial court could properly determine that evidence could have some tendency in reason to prove a disputed issue of fact, despite the relatively weak probative value of the evidence]; Peoplev. Price(1991) 1 Cal.4th 324, 434 [finding thatalthough relevance of challenged evidence - "was comparatively weak, it was properly admitted because it had some tendencyin reason to establish a contested issue].) In support ofhis position that the evidence wasirrelevant, Anderson characterizes the evidence as a “demonstration,”and relies on Peoplev. Boyd (1990) 222 Cal.App.3d 541, and People v. Vaiza (1966) 244 Cal.App.2d 121. Neither case is on point. | | In People v. Vaiza, supra, 244 Cal.App.2d 121, the defendant was charged with assaulting a peace officer with a deadly weapon; namely, a pistol. (/d. at p. 122.) The alleged assault occurred after two policemen 85 stopped the defendantas hewalked along a street about 2 o’clock in the morning. (/d. at p. 123.) The police saw what the defendantheld in his hand “for only a small spaceoftime, in poorlight,” before the defendant turned and ran. (/d. at pp. 123, 125.) The primary issue contested attrial was whether the defendant pointed an actual pistol at the officer, or whether he pointed a toy pistolas testified to by the defendant. (Id. at p. 125.) Thetrial court allowedthe prosecutionto introduce four photographs designed to show lighting conditions at the scene, andat the time, ofthe crime. However,the photographs were taken at approximately 7:30 in the evening many monthsafter the crime. The Court ofAppeal noted that “[a]t 7:30 p.m., most people are at home with residential lights blazing, cars moving about with headlights on, and porchlights in evidence;the lighting is not — thesame in an area ofthis kind at 2 o’clock in the morning.”(/d. at p. 127.) Indeed, during cross-examination ofone ofthe officers regarding the pictures, the officer could notsay whether certain lights that appearedin the pictures were lit at the time ofthe alleged assault. (/bid.) The court concluded that “[w]hen four ofthe pictures wereoffered solely to show the _ lighting conditionsat the timeofthe crime, it was incumbent upon the prosecution to lay a proper foundationat least by having the pictures taken at the same hour of the morningasthe incident.”(Ibid.) Because the prosecution failed to meet that minimum foundation,thetrial court abused its discretion by allowing the photographs. (Jbid.) | | In People v. Boyd, supra, 222 Cal.App.3d 541, the defendant and a | codefendant were charged with the robbery and murderofa pizza delivery manthat occurred about 12:50 in the morning outside an apartment complex, (Id. at pp. 548-549.) Identity was an issue attrial, and both defendantstestified they did not participate in the charged crimes. (/d.at ‘pp. 954-556.) During thetrial, the defendants sought to introducea film that purportedly reproduced the lighting conditions at the crime scene, for _ 86 the purpose of demonstrating that one of the percipient witnesses could not possibly have seen the events clearly enough to identify the perpetrators. The defense offered evidence at a foundational hearing to establish that the — filming occurred during a time of night, and during a stage ofthe moon, that was similar to whenthe crimes occurred. (/d. at p. 565.) Nonetheless, the trial court refused to allow the defendants to show the film to the jury on the groundthatit believed the film did not accurately represent what the human eye could see under the circumstances, and because no witness testified that the film was an accurate representationofthe lighting conditions on the night of the crimes. (Jbid.) The Boyd court affirmed the ruling. It pointed out various factors affecting the lighting conditions the night of the murder that were notverified or replicated in the film, and found, therefore, that the trial court reasonably concludedthatthe lighting conditions portrayed on the film werenot sufficiently similar to the lighting conditions on the night of the crime. (/d. at p. 566.) Vaiza and Boyd are inapposite. In each ofthose cases, the issue involveda party’s offer of demonstrative evidence for the purpose of conveyingto the jury the lighting conditions that existed at the time and. place of a crime. (See People v. Boyd, supra, 222 Cal.App.3d at p. 566; People v. Vaiza, supra, 244 Cal.App.2dat pp. 126-127.) To serve that purpose, the lighting conditions depicted by the evidence neededto be shownto besubstantially similarto those existing at the time ofthe crime. In both cases, however, the proponentofthe evidence failed to sufficiently establish that foundation. Here, in contrast, the prosecution offered evidence (the sound ofAnderson’s Bronco) that was not merely demonstrative of surrounding conditions. Instead, the evidence was a characteristic of a car actually seizedin the courseofthe investigation—a . characteristic that could be comparedto descriptions of the same 87 characteristic ofthe car seen driving near the victim’s homethe day ofthe murder. D. Any Error Was Harmless’ Anderson assertsthat the alleged error should be subjected to the federal harmless error test becausethe error violated his constitutional right to a fair trial. (AOB98.) This assertion is untenable. Even if the sound of the car should not have been admitted in evidence, there is no credible basis to conclude thatits admission violated Anderson’s constitutionalrights. (See Estelle v. McGuire, supra, 502 U.S.at p. 75 [stating the admission of - evidence will violate the federal constitution only whenit “so infuse[s] the - trial with unfairness as to deny due process of law.”].) Therefore, if the evidence should not have been admitted, only the state harmless error standard applies. In any event, the admission ofthe challenged evidence was harmless undereither standard. While the sound ofAnderson’s Bronco wasrelevant — to establishing the identity ofthe killer, its significance in contributing to the identification ofAnderson was minimalin the face ofother -. overwhelming evidence. For example, Vangorkum testified unequivocally that the photographs ofAnderson’s Bronco in Exhibit 20 depicted the same Bronco he saw the day of the murder, and Peretti and Handshoe both identified Anderson as being involved in the murder(16 RT 2500 et seq.; 18 RT 3085; 22 RT 3749 et seq.) In light ofthe whole record, thete is no reasonable doubtthat any errorin the admission ofthe sound ofthe Bronco did not contributeto the guilty verdicts. Likewise, the sound ofthe Bronco wasnot“the sort of evidence thatis likely to have a significant impact on the jury’s evaluation ofwhether defendant should live or die,””” and therefore any errorin its admission cannot serve as a basis to reverse the penalty verdict. (People v. Hamilton, supra, 45 Cal.4th at p. 917.) 88 VILLTHE TRIAL COURT PROPERLY ALLOWED THE PROSECUTION TO IMPEACH A DEFENSE WITNESS WITH EVIDENCE OF HIS PRIOR FELONY CONVICTIONS BECAUSE THEY WERE RELEVANT TO His CREDIBILITY Anderson contendsthetrial court abused its discretion by allowing the prosecution to impeach defense witness James Stevens with certain prior felony convictions. (AOB 101-107.) According to Anderson, evidence of those prior convictions had minimal value, which was outweighed by the - potential for prejudice. (AOB 104.) Respondent disagrees. Thetrial court’s decision to allow impeachmentwith the prior convictions was well within the boundsofits discretion because the prior convictions were relevantto Stevens’s credibility and the potential for undue prejudice to Anderson was de minimis. | A. Trial Court Proceedings Stevens wascalled as a witness by the defense. Before Stevens took the stand, the defense asked the court to limit the prosecution’sability to impeach Stevenswith his prior felony convictions. Stevens’s criminal history included five convictions for auto theft; two in 1986, and onein 1987, 1992, and 1993, respectively. (27 RT 4709.) Steven also suffered prior convictions for escape in 1986 and armed robbery in 1996. (Ibid.) Defense counsel asked to limit impeachment to the convictions occurring after 1992 because “I don’t think it is necessary to goall the way back to °86, which is almost 20 years old.” (27 RT 4709.) She further asked to exclude referenceto the fact thatStevens used a gun during the 1996 robbery onthe basis that “it is more prejudicial than probative.” (27 RT - 4709, 4714.) Finally, defense counsel stated she did not believe that the crime of escape involved moralturpitude, and that, therefore, it should not be used for impeachment. (27 RT 4709.) 89 Thetrial court refused to limit impeachmentin the ways Anderson requested.It found that an escape did involve moral turpitude and therefore could be used for impeachment. (27 RT 4714; see People v. Wheeler (1992) 4 Cal.4th 284, 296, & fn. 6. [prior felony conviction must involve moral _ turpitude to be admissible for impeachment].) With respect to the armed robbery conviction, the court ruled that Stevens could be impeached with _ that prior conviction, includingthe fact that he used a gun. The court explained:“It is my beliefthat if the firearm was pled and admitted,that constitutes a specific incident of readiness to do evil.” (27 RT 4715.) The court further stated: “I am going to weigh it pursuant to [Evidence Code section] 352. And mybelief is that that is a separate act that would | constitute moral turpitude; the use of a weaponin the course of a felony offense.” (27 RT 4715.) With respect to the convictions occurring before 1993, the court stated “the fact thatthey go back 20 years, I find is not — does not neutralize the probative value ofit becauseit looks like for ten years, up until the 1996 [robbery], it was an uninterrupted sequence of criminalactivity.” (27 RT 4715.) | During his cross-examination, the prosecutor impeached Stevens by having him admit that he had suffered the five convictions for auto theft described above, as well as the 1986 conviction for escape and the 1996 conviction for “robbery with the use of a firearm.” (27 RT 4800-4801.) B. Standard of Review ~ A trial court’s decision to allow impeachment with a prior felony conviction is reviewed for abuseof discretion, that is, whether the court exceededthe boundsofreason. (People v. Clair (1992) 2 Cal.4th 629, 655.) 90 C. The Trial Court Properly Allowed the Prosecution to Impeach Stevens With His Prior Felony Convictions Because They Were Relevant to His Credibility and Where Unlikely to Cause Any Undue Prejudice to Anderson It is well established that a witness may be impeachedwith a prior - felony conviction showing moralturpitude, subject to the court’s discretion under Evidence Codesection 352. (People v. Castro (1985) 38 Cal.3d 301, 306; People v. Clair, supra, 2 Cal.4th at pp. 653-654; Cal. Const., art. I, § 28, subd. (f)(4); Evid. Code, § 788.) Moral turpitude meansa “readinessto -do evil” or a “moral depravity of any kind.” (People v. Lang (1989) 49 Cal.3d 991, 1009; Castro, at pp. 314-315.) This rule reflects the principle that impeachmentwith such a prior conviction provides thetrier of fact with relevant information concerning a witness’s character and credibility. (See Castro, at pp. 313-316; People v. Wheeler, supra, 4 Cal.4th at p. 295 | (“Misconduct involving moral turpitude may suggest a willingness to lie”]; People v. Dewey (1996) 42 Cal.App.4th 216, 221 [same].) Crimesdirectly involving dishonesty lend themselveseasily to the inference that a witness’ character includes a readinesstolie in a particular case, and that he haslied in fact. (People v. Castro, supra, 38 Cal.3d at p. 315; People v. Chavez (2000) 84 Cal.App.4th 25, 28; People v. Thornton (1992) 3 Cal_App.4th 419, 422.) Crimes thatinvolve moral turpitude other than dishonesty, although perhapsless compelling, nonetheless provide a basis for inferring that a witness is more likely to be dishonest than a witness about whom no such thing is known. (Castro, at p. 315; Chavez, at pp. 28-29.) “[I]t is undeniable that a witness’ moral depravity of any kind ~ has some‘tendency inreason’. . . to shake one’s confidencein his honesty.” (Castro, at p. 315.) | Stevens has suffered prior convictions for auto theft, escape, and armed robbery. Each ofthese crimes have been found to involve moral 91 turpitude. (People v. Lang, supra, 49 Cal.3d at p. 1009 [escape without force]; People v. Rodgers (1987) 240 Cal.App.3d 258, 260 [auto theft]; People v. Stewart (1985) 171 Cal-App.3d 59, 64 [robbery].) The use of a gun during a robbery further indicates the moral depravity of the act. (See, e.g., People v. Cavazos (1985) 172 Cal.App.3d 589, 595 [It is the use of the deadly weapon which elevates the assault to a crime ofmoral | turpitude”].) Therefore, each ofthose convictions was relevant to Stevens’s credibility, and was admissible subject to the court’s discretion under Evidence Code section 352. Pursuant to Evidence Code section 352, a court has the discretion to prevent impeachmentwith a prior conviction if the probative value ofthe prior conviction is substantially outweighed by the potential for undue | prejudice. (People v. Clair, supra, 2 Cal.4th at p. 654.) In exercising this discretion,a trial court should be guided, but not bound,by the factors set forth in People v. Beagle (1972) 6 Cal.3d 441. Thus, a court should generally consider: 1) whether the prior conviction reflects on honesty and integrity; 2) whetherit is near or remote in time; 3) whether it was suffered for the sameorsubstantially similar conduct for which the defendantis on trial; and 4) what effect admission would have on the defendant’s decision to testify. (Castro, 38 Cal.3d at p. 307; Beagle, at pp. 453-454.) Whenthe witness subject to impeachmentis not the defendant, a court should focus on whether the conviction reflects on honesty and whetherit is near in time. (People v. Clair, supra, 2 Cal.4th at p. 654.) The nearness or remoteness in timeofa prior conviction is a relevant consideration because “‘the remoteness detracts significantly from the value of this evidence in impeaching ... credibility.’” (People v. Woodard (1979) 23 Cal.3d 329, 337, quoting People y, Antick (1975) 15 Cal.3d 79, 99.) “A conviction, ““feven] one involving fraudorstealing, for example, if it occurred long before and has been followed by a legally blamelesslife, should generally 92 be excluded on the ground ofremoteness.””” (Woodard, at p. 336, footnote omitted.) In his opening brief, Anderson focuses on the relative remoteness of theprior convictionsand,citing People v. Pitts (1990) 223 Cal.App.3d 1547, suggests that the court should have adopted a 10-year period as a presumptive cut-off date for prior convictions, which would haveresulted in the exclusion ofall but the 1996 armed robbery conviction. (AOB 103.) Pitts is inapposite. In that case, the court foundthatthetrial court did not ‘abuse its discretion by applying a presumptive standard ofremoteness of 10 "years; it did not establish, however, that not applying a presumptive 10- year-period for remoteness constituted an abuse of discretion. To be sure, “{t]here is no consensus amongcourts as to how remote a conviction must be beforeit is too remote.” (People v. Burns (1987) 189 Cal.App.3d 734, 738.)Further, convictions remote in timeare not automatically inadmissible for impeachment purposes. Even a fairly remote prior conviction isadmissible if the defendant hasnot led a legally blamelesslife since the time ofthe remoteprior. [Citations.] In fact, in People v. Green (1995) 34 Cal. App. 4th 165, 183 [40 Cal. Rptr. 2d 239], the court admitted a 20-year-old prior conviction, reasoning that defendant’s 1973 conviction was followed by five additional convictions in 1978, 1985, 1987, 1988, and 1989. The court reasonedthat “the systematic occurrence of [Anderson’s] priors over a 20-year period create[d] a pattern that [was] relevant to [his] credibility.” [Citation.] The fact that the intervening convictions were in and ofthemselves probative on the issue of defendant’s honesty and credibility mitigates in favor of admission of the remote prior. (People v. Mendoza (2000) 78 Cal.App.4th 918, 925-926.) Here, the trial court considered the age ofthe convictions in deciding whether to exclude them, and concludedtheir significance wasnot substantially reduced by any remotenessin time because they reflected “an uninterrupted sequence of criminal activity”; in other words, Stevens had 93 not led a legally blamelesslife that might render a remote conviction no longerrelevant to an assessmentofcredibility. (27 RT 471 5.) In light of the foregoing authorities, the trial court’s decision to allow impeachment with Stevens’s prior convictionsthat were more than 10 years old did not constitute an abuse ofdiscretion. With respect to the 1996 armed robbery conviction, Anderson suggests that it should have been excludedbecauseits relevanceto ' Stevens’s credibility was minimal. Anderson offers no argument in support of this assertion; instead, he simplycites to this Court’s opinion in People v. Fries (1979) 24 Cal.3d 222, at page 229, which includes the observation that “convictions for theft offenses such as ‘robbery and burglary, are somewhatless relevant’ on the issue of credibility than are crimes such as perjury [citation] and hence are entitled to ‘somewhatless’ weight.” But the general observation that a robbery conviction may be “somewhatless relevant” on the issue of credibility than a perjury conviction says nothing aboutthe proper assessment ofthe probative value of Stevens’s armed robbery conviction for the purposes of impeachmentin the contextofthis case. As noted above,robbery is a crime involving moralturpitude. (People v. Stewart, supra, 171 Cal.App.3dat p. 64 [“it is beyond dispute that robbery necessarily involves moral turpitude or the “readiness to do evil,” and evinces a charactertrait which can reasonably be characterized as 1 99999““immoral.”””].) As such,it is relevant to a jury’s assessment ofwhetherto believe a witness’s testimony. (People v. Castro, supra, 38 Cal.3d at p. 315 [“it is undeniable that'a witness’ moral depravity ofany kind has some ‘tendency in reason’ (Evid. Code, § 210) to shake one’s confidencein his honesty.”].) Andin this case, the 1996 armed robbery conviction capped a 10-year period in which Stevens committed seven crimes ofmoral _ turpitude, and resulted in his being incarcerated in prison until 2000,just "five years before his trial testimony. Under these circumstances, 94 Anderson’sassertion that the robbery conviction had minimalprobative value is unpersuasive. In addition to asserting that Stevens’s prior convictions had minimal probative value, Andersonalso asserts that the priors were “prejudicial and " cumulative” because thejury already heard that Stevens met Anderson in prison (thereby indicating that Stevens had been convicted of a crime), and they portrayed Stevens as a long-time criminal. (AOB 103.) This argument, too,is unpersuasive. The prejudice implicated by the weighing process under Evidence Code section 352 is not the prejudice or damagethat naturally flows from relevant evidence—in other words, as relevanthere, from the natural implications from the fact that Stevens had previously suffered seven felony convictions involving moral turpitude over a period of about 10 years, i.e., that he was a long-time criminal and therefore may _ not be trustworthy—butthe prejudice that “uniquely tends to evoke an emotionalbias against the defendant as an individualand. . . has very little effect on the issues. [Citations].” (People v. Barnett, supra, 17 Cal.4th atp. 1119.) Anderson has not articulated how learning that Stevens had suffered these prior convictions would tend uniquely to evoke in the jurors an emotional bias against Anderson as an individual, and there is no obvious reason to think that it would. Accordingly, Anderson has failed to show that — the trial court abusedits discretion by allowing Stevens to be impeached with his prior convictions. (See People v. Hinton (2006) 37 Cal.4th 839, 888 [“Nowitness. . . is entitled to a false aura ofveracity.”].) D. Any Error Was Harmless Evenifthe trial court should have limited the prosecution’s ability to impeach Stevens with certain prior convictions, reversal is unwarranted because impeachmentof Stevenswith all his prior convictions didnot result in a miscarriage ofjustice. The state harmless error test applies here because any erroneous admission of Stevens’s prior convictions did not _ 95 result in a fundamentally unfair trial under the circumstances of this case (see Estelle v. McGuire, supra, 502 U.S. at p. 75 {the admission of evidence will violate the federal constitution only whenit “so infuse[s] the trial with unfairness as to deny due process of law.”]); indeed, Anderson doesnot _assert otherwise. | The evidencerelated to Stevens’s criminal history—not Anderson’s. Accordingly, there was norisk the evidence would reflect poorly on Anderson. Moreover, as discussed thoroughly in preceding arguments, there was strong evidence ofAnderson’s guilt. Therefore,it is not reasonably probable that Anderson would havereceived a different outcomeat the guilt phase if Stevens had been impeached with oneprior felony conviction instead of seven. Likewise, evidence of Stevens’s prior convictions wasnot“““the sort of evidencethatis likely to have a. significant impacton the jury’s evaluation ofwhetherdefendant should live or die,””” andtherefore any error in its admission cannot serve as a basis to reverse the penalty verdict. (People v. Hamilton, supra, 45 Cal.4th at p. | 917.) . IX. THE TRIAL COURT PROPERLY ADMITTED EVIDENCE OF A HEARSAY STATEMENT PURSUANTTO THE EXCEPTION TO THE HEARSAY RULE FOR PRIOR INCONSISTENT STATEMENTS Anderson contendsthetrial courtabused its discretion whenit allowed the prosecution to introduce a hearsay statement made by Travis Northcutt under the exception to the hearsayrule for prior inconsistent - statements (see Evid. Code, § 1235). (AOB 107-117.) Anderson forfeited this argumentby failing to make a timely andspecific objection on this groundin the trial court. Evenifnot forfeited, the trial court properly exercised its discretion. Alternatively, even if the court should have excluded the evidence, the error was harmless. 96 A. Trial Court Proceedings The prosecution called Travis Northcutt as a witness. (20 RT 3435.) Before doing so, the prosecutor told the court, “I believe Travis Northcutt is going to do whateverhe can to throw a monkey wrench into the works here; that he doesn’t wantto testify.” (20 RT 3434.) Upon taking the stand, Northcutt said he wanted “to take the Fifth.”(20 RT 3436.) Upon inquiry by the court, Northcutt explained that he just didn’t want to be there and didn’t want to say anything, andthat he “figured taking the Fifth would makeit so] didn’t have to talk... . .” (20 RT 3502.) Based on Northcutt’s . explanation, and an offer ofproofby theprosecutor, the court ruled there wasnobasis to find that Northcutt could refuse to answer questions under the Fifth Amendment. (20 RT 3436-3438, 3499-3503.) Northcutt proceeded to answer questions asked ofhim in front ofthe jury, but was generally -evasive to the point that the prosecutor asked the court to declare him a hostile witness, and the court granted the prosecutor permission to ask leading questions. (20 RT 3505-3506.) | During direct examination, Northcutt testified that prior to April2003, he lived with Anderson and Stevens in a condominium in Poway. (20 RT 3505-3506.) Northcutt denied that Andersonraised with him “the subject of committing a crime involving a safe.” (20 RT 3506.) He also denied that he ever saw Anderson with a “goofy hairpiece.” (20 RT 3508.) Northcutt furthertestified that he did not remember, ordid notrecall, the following: Telling Investigator Baker that Anderson told him he was “coming along and that something big was going to happen, a big hit that involved a safe, and that [Anderson] then askedif [Northcutt] wanted to bepart ofit” (20 RT 3506); seeing a newsreport ofthe murder of the ownerofthe El Cajon | Speedwaywhile at the condominium (20 RT 3506-3507);telling Investigator Baker that he saw such a television news report in the presence of Anderson (20 RT 3507); telling Investigator Baker that Anderson told | 97 him “to keep [his] fucking mouth shut; that [he was] the — only thethird person to know that [Anderson] was involved and that [he] would be next if [he] didn’t keep [his] mouth shut” (20 RT 3507, 3510-3511); telling Investigator Baker that he had seen Anderson wearing a “salt-and-pepper, goofy-looking hairpiece”(20 RT 3508, 3511); andtelling Investigator Baker that Anderson drove a Bronco mostofthe time (20 RT 3512). During cross-examination by Lee’s counsel, Northcutt testified that he talked to investigator Baker twice. (20 RT 35 12.) During the second interview, he “more orless” told investigator Baker that everything he said during the first interview was a lie. (20 RT 3513.) _ During cross-examination by Anderson’s counsel, Northcutt testified he did not care for Anderson at all. (20 RT 3515.) Healso stated he did not recall much of anything hetold investigator Baker because he had been drinking excessively and smoking marijuana. (20 RT 3519.) However, Northcutt rememberedthat, during the second interview, Investigator Baker told him he would likely be asked during a trial whether Andersonsaid he wasinvolved in something big involving a safe and whether Anderson had asked him ifhe wanted to be involved. Northcutt testified variously that ~ “that would have never happened,” “It never happened,” and “it couldn’t possibly” have happened. (20 RT 3520-3521.) _ Theprosecutionlater impeached Northcutt’s testimony through Investigator Baker. Bakertestified that he talked to Northcutt in September 2004. (24 RT 4167-4168.) The prosecutor started to ask Baker ifNorthcutt told him that Andersontold Northcutt “that he was coming along and--”. Atthat point, the defense objected on the ground that the question was leading. (24 RT 4169.) The following colloquy occurred: Mr. McAllister: It’s impeachment, your honor. The Court: The — I think this iis a question that was asked ofMr. Northcutt and — | 98 Ms. Vandenbosch: Okay. _ The Court: --and myruling is that there is the foundation for prior inconsistent statement. (24 RT 4169.) Without further objection by Anderson, Investigator Baker proceeded to testify that Northcutt told him that Anderson said “he was coming along and that something big was going to happen, big hit that involved a safe and that he asked Travis Northcutt if he wantedto bepart ofit.” (24 RT 4169.) Investigator Bakeralsotestified that Northcutt told him that, while in the presence ofAnderson and Stevens, he saw a newscast regarding the murder of the El Cajon Speedway owner and that Anderson told him to “keep his fucking mouth shut,” that Northcutt was only the third person to know that he was involved, and that if he didn’t keep his mouth shut he would be next. (24 RT 4169-4170.) Finally, Northcutttold Investigator Bakerthat he had seen Anderson wearing a goofy hairpiece, andthat Anderson drove a Ford Bronco mostofthe time. (24 RT 4170.) B. Anderson Forfeited This Claim By Failing To Raise It In The Trial Court In this appeal, Anderson asserts that Investigator Baker’s testimony that Northcutt told him Anderson said “he was coming along andthat ‘something big wasgoingto happen,a big hit that involved a safe .. . » and that Anderson asked Northcutt “if he wanted to be part of it,”contained two - levels of hearsay statements (Anderson’s out-of-court statement to Northcutt, and Northcutt’s out-of-court statement to Investigator Baker), . and that there was not an applicable exception to the hearsay rule to overcomeboth hearsay statements so as to make Investigator Baker’s | testimony admissible. (AOB 109-114; see People v. Zapien, supra, 4 Cal.4th at pp. 951-953 [stating rule that admission ofmultiple hearsay is proper where each hearsay statement meets the requirements of an 99 exception to the hearsay rule]; Evid. Code, § 1201 [same].) However, Andersondid notraise a hearsay objection to the admission of Investigator Baker’s testimony in thetrial court. Instead, Anderson only objected to the form ofthe question, asserting that it was leading. (24 RT 4169.) Then, after the prosecutor said he wasoffering the evidence as impeachment, and while the court was explaining that the evidencefell within an exception to the hearsay rule, Anderson’s counsel said “Okay,” and did not thereafter quarrel with the court’s explanation for admitting the evidence or otherwise object to the admission of Investigator Baker’s testimony. Anderson’s initial objection to the form the prosecutor’s question wasinsufficient to preserve a hearsay argument for purposes of appeal. (People v. Williams, supra, 43 Cal.4th at p. 620 {“[Q]uestions relating to the admissibility of evidence will not be reviewed on appealin the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal,” internal quotation marks omitted]; Peoplev. Seijas (2005) 36 Cal.4th 291, 301 [We havelong held that a party who doesnot object to a ruling generally forfeits the right to complain ofthat ruling on appeal.”]; - e@g., People v. Green (1980) 27 Cal.3d 1, 22 [objection on groundthat | questions were leading did not preserve appellate argument that the evidence was impermissible evidence of other crimes].) C. Standard of Review A trial court’s decision to admit evidence is reviewed for abuse of discretion. (People v. Scott, supra, 52 Cal.4th at p. 491.) 100 D. The Trial Court Properly Allowed Investigator Baker To Testify To Northcutt’s Statements Regarding What Anderson Had Said To Him Because An Exception To The Hearsay Rule Applied To Both Levels Of Hearsay Underthe hearsayrule, “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth ofthe matter stated” is not admissible unless an exception to the hearsayrule applies. (Evid. Code, § 1200.) Where proffered evidence contains multiple levels of hearsay, an exception for each level must be satisfied. (/d., § 1201.) _ The challenged testimony of Investigator Baker includedtwolevels of hearsay: Anderson’s statements to Northcutt, and Northcutt’s statements to Investigator Baker.As to Anderson’s alleged statements to Northcutt, the record suggests that the parties agreed in the trial court that such statements would fall within the exception to the hearsay rule found at Evidence Code section 1220, which addresses admissions by a party. (20 RT 3432.) In his | opening brief, Andersondoes not challengethis notion, and limits his argumentto the assertion that “no hearsay exception applied for Northcutt’s statement to Baker.” (AOB 111.) In particular, Anderson contendsthat the exception for prior inconsistent statements, set forth in Evidence Code section 1235, does not apply. (AOB 1112-1114.) Evidence Codesection 1235 provides, in relevant part, that “Telvidence ofa statement made by a witness is not made inadmissible by the hearsay rule ifthe statement is inconsistent with his testimony at the . hearing ... 2’ In People v. Johnson (1992) 3 Cal.4th 1183, at page 1219, this Court stated the “fundamental requirement’ of section 1235 is that the statementin fact be inconsistent with the witness’s trial testimony”(italics in original), and observed that normally “the testimony of a witness that he or she does not rememberan event is not inconsistent with that witness’s prior statement describing the event.” This Court cautioned, however, that 10] this rule did not operate mechanically, and explainedthat ““[i]nconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness’ prior statement [citation], and the same principle governs the case ofthe forgetful witness.’” (/bid.) This.Court furtherclarified that “[w]hen a witness’s claim of lack ofmemory amounts to deliberate evasion, inconsistency is implied. [Citation.] As long as there is a reasonable basis in the record for concluding that the witness’s ‘I don’t remember’ statements are evasive and untruthful, admission ofhis or her prior statements is proper.” (/d. at pp. 1219-1220.) . Theprecise evidence challenged by Andersonin this appealis Northcutt’s out-of-court statement to Investigator Baker that Andersontold him “he was coming along and that something big was going to happen, a big hit that involved a safe andthat he asked Travis Northcutt if he wanted to be part of it.” (24 RT 4169; see AOB 108-109.) Under Johnson, the question then becomes whether this statement was, in effect, inconsistent with Northcutt’s trial testimony; if it was, then it qualified as a prior inconsistent statement and was admissible on that basis as an exception to _ the hearsayrule. | __ The record establishes that Northcutt’s out-of-court statement was indeed inconsistent with histrial testimony. On direct examination, the prosecutor askedNorthcutt: “during the time that you lived [with him], did Mr. Anderson bring up the subject of committing a crime involving a safe?”, to which Northcutt responded, “No.” (20 RT 3506.) Then, during cross-examination, Anderson’s counsel asked Northcutt aboutthe idea of Anderson “telling you that he was involvedin something big and thatiit involved a safe and that — and askingyou if you wanted to be involved with _ it.” 20 RT 3520-3521.) Northcutt responded, “That would have never happened.” (20 RT 3521.) Counsel asked ifNorthcutt told Investigator Baker shortly beforethetrial “that you weren’t even sureif [Anderson] 102 actually told you this and that you may havejust thoughtit up.” (20 RT 3521.) North responded,“Yes, it never happened.” (20 RT 3521) Counsel followed up, “It never happened?”, to which Northcutt responded, “No.It couldn’t possibly, no no.” (20 RT 3521.) This testimonyis plainly contradicted, and thereby inconsistent with, Northcutt’s statement to Investigator Baker that Anderson told him “a big hit” involving a safe was going to happen, and that Anderson asked him if he wantedto be a part of it. . | Anderson ignores or minimizes the above testimony ofNorthcutt— testimonythat amountsto affirmative denials that Andersontold him about committing a crime involving a safe or that Anderson asked him if he wanted to participate—and focuses instead on Northcutt’s testimony that he did not recall telling Investigator Baker about Anderson’s statements. (AOB 113-114; see 20 RT 3506, 3510.) This focusis misplaced. The relevant fact sought to be proved by the prosecutor was that Anderson made statements to Northcutt about planning to commita crime involvinga safe; whether Northcutt relayed Anderson’s statements to Investigator Baker was not the point. The questions put to Northcutt about whathetold Investigator Baker were designed merely to remind him ofhis statementto Investigator Baker, and to provide him a chanceto explain the inconsistency between that statement (i.e., the statement that Anderson told him abouta hit involving a safe and asked if he wanted to participate) and his trial testimony(i.e., that Anderson did not tell him about a hit involving a safe or ask if he wantedto participate). Northcutt’s responses about not remembering what he told Investigator Baker do not change the fact that, whenasked on direct on cross-examination whether Andersontold him about a crime involving a safe and asked him ifhe wantedtoparticipate, Northcutt flatly denied that Anderson made such statements. 103 EvenifNorthcutt’s claim of lack ofrecall about relaying Anderson’s statements to Investigator Baker were relevant to this analysis, his claim did not preclude impeachmentofNorthcutt with his prior statements to Investigator Baker. Anderson arguesthat a witness’s testimony that he does not recall an eventis not inconsistent with a prior statement about that _ event. (AOB 112.) While this position is generally correct,it fails to acknowledge that a witness’s claim of lack of recall should not be blindly accepted: “Whena witness’s claim of lack ofmemory amounts to deliberate evasion, inconsistency is implied.” (People v. Johnson, supra, 3 Cal.4th at p. 1219.) Thus,if there is a reasonable basis in the record for concluding that the witness is being evasive and untruthful, admission of his prior statements is proper. (/d. at pp. 1219-1220.) Here, the record supports a reasonable inference that Northcutt was evasive and untruthful when he claimed he could notrecall telling Investigator Baker about Anderson’s statements. Before calling Northcutt as a witness, the prosecutorstated his beliefthat Northcutt “is going to do whatever he can to throw a monkey wrench into the works here; that he doesn’t wantto testify. I can’t guarantee you what he will and won’t say.” (20 RT 3434.) And when Northcutt first took the stand, he asked to invoke his Fifth Amendmentright to remain silent. (20 RT 3436.) Upon inquiry by the court, Northcutt candidly said that he didn’t want to be there, and that he didn’t wantto say anything. (20 RT 3502.) After being ordered to testify, Northcutt failed to provide straightforward answers. The following excerpt from the reporter’s transcript, which documents a portion of the prosecutor’s direct examination near the beginning ofNorthcutt’s testimony,illustrates the point: Q. How long have you known Eric Anderson? A. have noidea. 104 Q. At somepoint in time, prior to April of2003, were you andMr. Anderson roommates together? A. Yes. Q. And did you also have another roommate? A.Yes. Q. And what was that roommate’s name? A.I don’t recall. Q. Would the name James Stevens sound familiar? A. Soundspretty good. | Q. During that time that you and Mr. Anderson were roommates, where — where didyou share a home? In other words, what was the address ofwhere you wereliving? A. Oh, I have no clue. Q. Okay. And whatpart of the county wasit? A.Inland. Q. And when you say “inland,” sir, what particular community or town? A.A small one. Mr. McAllister: Your honor, may I ask that this witness be declared a hostile witness? The Court: You can ask him leading questions. (20 RT 3505-3506.) Northcutt’s reticence continued throughout his time on the witness ~ stand. Based on the foregoing, there is a reasonablebasis in the record to conclude that Northcutt’s claim of lack ofrecall was evasive and untruthful, 105 and therefore inconsistency between his testimony and his prior statements is implied. | EK. Any Error Was Harmless Anderson asserts, without explanation,that the allegederror resulted in a violation ofhis federal Constitutionalrightto a fairtrial during the guilt phase, and therefore that it should be subjected to the federal harmless errortest articulated in Chapmanv. California, supra, 386 U.S. 18. (AOB 115.) Respondent disagrees. Anderson’s admission to Northcutt was clearly relevantto the contested issueat trial ofwhether Anderson was involved in the murder ofBrucker, And Northeutt appeared as a witnessat the trial, and was subject to cross-examination by Anderson. Forthese reasons, any error understate evidentiary rules did notresult in a constitutional violation. (See People v. Dement (2011) 53 Cal.4th 1, 23 [“When a declarant ‘appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use ofhis prior testimonial statements.’”]; People v. Hovarter, supra, 44 Cal.4th at p. 1010 [“The ‘routine application of state evidentiary law does not implicate [a] defendant’s constitutional rights.’ [Citation.]”]; People v. Falsetta, supra, 21 Cal.4th at p. 913 [“The admission ofrelevant evidence will not offend due process unless the evidenceis so prejudicialas to render the defendant’s trial fundamentally unfair”]; Jammalv. Van de Kamp,supra, 926 F.2d at p. 920 [Only ifthere are no permissible inferences the jury may draw from the evidence can its admission violate due process.”}.) Therefore, if the evidence should not have been admitted, only the state harmless error standard applies. Understate law, reversal is not required for the erroneous admission of evidence unlessit resulted in a miscarriage ofjustice. (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 76; Cal. Const.art. VI, § 13; Evid. Code, § 353, subd. (b).) A miscarriage ofjustice will be found only if, after an examination ofthe wholerecord, the court determinesit is reasonably 106 probable that a result more favorable to the appealing party would have been reachedin the absence ofthe error. (People v. Watson, supra, 46 Cal.2d at p. 836.) In light ofthe whole record,it is not reasonably probable that Anderson would have received a more favorable verdict if Investigator _ ‘Baker had not been allowedto testified to Northcutt’s prior statements. The prosecution’s case against Anderson was multi-faceted. It included direct evidence ofAnderson’s planning and executing the charged crimes as testified to by Peretti, Handshoe, andPaulson.It also included several items of circumstantial evidence. For example: four witnesses saw a Bronco similar to Anderson’s in the area ofBrucker’s house the dayofthe murder; Brucker’s descriptionofhis killer’s hair color matched the color of the wig Anderson was wearing when he left Handshoe’s mobile home; and Anderson changedhis appearance and fled to Oregon in a car that was not his Bronco daysafter the murder. As discussed abovein preceding arguments, the combined strengthof the prosecution’s case wasstrong. While Anderson’s statement to Northcutt was another piece ofevidence that supported the prosecution’s case, it was cumulative to more compelling evidence, and only marginally contributed to the proof against Anderson. Anderson also contends the evidence was prejudicial during the penalty phaseofthe trial because it showed that he participated in the planning ofthe crimes. (AOB 117.) However, like in the guilt phase, this evidence was cumulative of more compelling evidence showing that Anderson participatedin the planning ofthe crimes; namely,thetestimony of Peretti, Paulson, and Handshoe. Therefore, there is no realistic possibility that the jury would have rendered a different verdict had thetrial court excluded the evidence ofNorthcutt’s out-of-court statements. (People v. Hamilton, supra, 45 Cal.4th at p. 917 [““[W]hen faced with penalty phaseerror not amounting to a federal constitutional violation, we will 107 _ affirm the judgment unless we conclude there is a reasonable(i.e., realistic) possibility that the jury would have rendered a different verdict had the error orerrors not occurred.””’].) For these same reasons, even if analyzed under the Chapman standard, any error was harmless at both the guilt and penalty phases ofthe ‘trial, X.. ‘THE TRIAL COURT PROPERLY ALLOWED EVIDENCE, OVER . ANDERSON’S HEARSAY OBJECTION, THAT ANDERSON WAS IDENTIFIEDBY LAW ENFORCEMENTAS A SUSPECT THREE DAYS AFTER THE MURDER BECAUSE THE EVIDENCE Dip NOT AMOUNT TO HEARSAY Anderson contendsthe trial court abused its discretion when it _ allowed the prosecution to introduce evidence that Anderson wasidentified as a potential suspect in the Brucker murder on April 17, 2003 (three days _ after the murder) because the evidence amountedto inadmissible hearsay. (AOB 118-123.) Respondent disagrees. The evidence was not offered to prove the truth of an out-of-court statement and therefore was not hearsay evidence. Any error was harmless. 7 A. Trial Court Proceedings Duringits case-in-chief, the People presented evidence that Anderson fled from San Diego on April 24, 2003, for the purpose of supporting the inference that Anderson harbored consciousnessofguilt for the Brucker imurder. (21 RT 3574-3575.) To counter this evidence, the defense called Detective Goldberg as a witness to testify that, also on April 24, 2003, the San Diego Union-Tribune newspaperpublished anarticle indicating law enforcement officials were looking for two suspects in connection with the Brucker murder, (26 RT 4581, 4583.) Thearticle described the suspects as- | ‘two women between the ages of 17 and 25 who were associated with a gray Toyota “Forerunner”or “Prerunner” type of truck. (26 RT 4583.) A second article was published on May 10, 2003, which indicated police had cleared 108 the two females of involvement in the murder, and that the investigation was “wide open” and police were seeking information from the public. (26 RT 4584-4585.) According to the defense, this evidence, along with the ~ evidence that parole agents searched Anderson’s condominium on April 24, 2003, tended to underminethe prosecution’s consciousness-of-guilt | explanation forAnderson’sflight, and tended to show that Anderson fled the. state because ofhis concern about being returned to prison for parole. violations unrelated to the Brucker murder. (26 RT 4582.) In responseto the testimony ofDetective Goldberg offered by the defense, the prosecution asked Detective Goldberg the following question on cross-examination: “The first time that the person you now know asEric Anderson wasidentified to law enforcement came through the crime stoppertip, didn’t it?” (26 RT 4594.) Anderson objected to the question on. ‘ the ground that it called for hearsay. After the prosecution clarified it was offering the evidence “not for the truth of the matter of thetip” but to establish the progress and the timing of the investigation, the court overruled the objection: “I’m going to allowit for the limited purpose,not for the truth ofthe tip, but the timing of the tip and what happened next.” (26 RT 5494.) Thereafter, Detective Goldberg testified that “[w]e received information in regards to Mr. Anderson on [April 17] via his — his nickname,” and that “by his nickname Mr. Anderson wasidentified as a potential suspect.” (26 RT 4594-4595.) . B. Standard of Review A trial court’s decision to admit evidence is reviewed for an abuse of discretion. (People v. Scott, supra, 52 Cal.4th at p. 491.) 109 C. The Trial Court Properly Allowed Detective Goldberg to Testify That Anderson WasIdentified as a Suspect on April 17, 2003, Because That Evidence Was Not Offered to Prove the Truth of any Out-Of-Court Statement “Hearsay, of course, is evidence ofan out-of-court statement offered by its proponentto prove whatit states.” (People v. Alvarez (1996) 14 Cal.4th 155, 185.) As a corollary to this rule, an out-of-court statementis not hearsay evidenceifit is not admitted for the truth ofthe matter stated. (People v. Fields (1998) 61 Cal.App.4th 1063, 1068.) Thus, to properly analyze any hearsay issue, there must be an examinationofthe challenged evidence to identify whether it contained any out-of-court statement, and the. purpose for which any.such statement was admitted. | Here, the challenged evidence contains twoassertions of fact: The first is the explicit assertion that law enforcementreceiveda tip on April 17, 2003; the secondis the implicit assertion that Anderson was involved in the murder ofBrucker. Thefirst assertion was made by Detective Goldberg himselfwhile testifying and therefore does not amountto an out-of-court _ Statement. The second assertion was made by an unidentified third person on April17, and therefore constitutes an out-of-court statement. However, that out-of-court statement, regardlessofits truth, was offered simply to establish that Andersonbecamea suspect in the murder on April 17, which was several days before April 24 when Andersonfled San Diego; it was not offered to prove that Anderson in fact committed the murder. Therefore, Detective Goldberg’s testimony did not constitute hearsay evidence. Anderson’s argumentthat the evidence amountedto hearsay focuses . on thefirst assertion identified above: “Contrary to whatthetrial court decided, the detective’s response was a statementofferedforits truth since jurors would have to regard the April 17th date as true in order to ascertain the timing ofthe investigation.” (AOB 119.) While this is true enough, 110 Detective Goldberg’s assertion that the tip was received on April 17 was a direct assertion by Goldberg himselfwhile testifying at thetrial. Nonetheless, Anderson suggests that Goldberg’s testimony on that point was not based on his personal knowledge, but instead reflected what he had been told by others. (AOB 119.) This is speculation. Had that been a concem attrial, Anderson could have asked Goldberg while he was testifying how he knew aboutthe tip, but Anderson did not do so. Anderson did; however,elicit testimony from Detective Goldbergthat he had been involved in the murder investigation “pretty muchsinceit’s [sic] happened.” (26 RT 4577.) Onthis record, there is no reasonable basis to conclude that Detective Goldberg did not have personal knowledge ofthe fact that the tip identifying Anderson as a suspect was received on April 17. D. Any Error Was Harmless Anderson contends, without explanation,that the allegedly erroneous admission of Goldberg’s testimony resulted in a violation of his federal constitutional rights during the guilt phase, and therefore is subject to the harmless error standard in Chapmanv. California, supra, 386 U.S. 18. (AOB 120.) Respondent disagrees. The testimony wasrelevant to rebut evidence introduced by the defense regarding whether Anderson was considered a suspect before he fled town. Accordingly, if the admission of the testimony waserror because it amounted to hearsay as claimed by Anderson,the error violated nothing more than state evidentiary rules, and therefore is subject to only thestate standard for harmlesserror. (See People v. Hovarter, supra, 44 Cal4th at p. 1010 [“The ‘routine application of state evidentiary law does not implicate [a] defendant’s constitutional rights.’ [Citation.]”’]; People v. Falsetta, supra, 21 Cal.4th at p. 913 [“The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant’s trial fundamentally unfair”); Jammalv. Van de Kamp, supra, 926 F.2d at p. 920 [“Only if there 111 are no permissible inferences the jury may draw from the evidence can its admission violate due process.”].) Understate law, reversal is not required for the erroneous admission of evidenceunless it resulted in a miscarriage ofjustice. (Peoplev. Coffman andMarlow,supra, 34 Cal.4th at p. 76; Cal. Const. art. VI, §. 13; Evid. Code, § 353, subd. (b).) A miscarriage ofjustice will be found only if, after an examination ofthe whole record, the court determines it is reasonably probablethata result more favorable to the appealing party would have been reachedin the absence ofthe error. (People v. Watson, supra, 46 | Cal.2d at p. 836.) The testimony ofDetective Goldberg aboutreceiving the _. tip on April 17 is patently unimportantto the determination ofAnderson’s guilt in relation to the other evidence presented at trial. ‘Therefore, even if - improperly admitted, the evidence did notresult in a miscarriage ofjustice. Anderson also contends the alleged error was prejudicial at the penalty phase. (AOB 122-123.) Respondentdisagrees. The evidence ofthe tip was not “““the sort ofevidence thatis likely to have a significant impact _ on the jury’s evaluation ofwhetherdefendant shouldlive or die,””” and | therefore any error in its admission cannotserve asa basis to reverse the penalty verdict. (People v. Hamilton, supra, 45 Cal.4th at p. 917.) XI, CUMULATIVE EFFECT OF EVIDENTIARY ERRORS _ Anderson contends the cumulative effect ofthe above-alleged evidentiary errors resulted in an unfairtrial in violation of his due process rights. (AOB 123-126; see People v. Hill (1998) 17 Cal.4th 800, 844 [stating that “a series oftrial errors, though independently harmiess, may in some circumstances rise by accretion to the level ofreversible and ~ prejudicial error.”].) But as demonstrated above, no evidentiaryerror occurred, and even if there were an error,it was harmless. Consideration of _ the cumulative effect ofany possible errors would not alter the conclusion that Anderson wasnotprejudiced by the asserted errors, and that he 112 received a fairtrial. (See, e.g., People v. Bolden (2002) 29 Cal.4th 515, 567-568.) XII. THE TRIAL COURT PROPERLY REFUSED TO INSTRUCT THE JURY THAT PERETTI AND PAULSON WERE ACCOMPLICES AS A MATTER OF LAW BECAUSE THAT DETERMINATION DEPENDED ON MATERIAL FACTS THAT WERE IN DISPUTE Anderson contendsthe trial court erred by refusing to instruct the jury that Peretti and Paulson were accomplices to the Brucker murder as a matter of law becausetheir presence at the mobile home when Anderson, . Handshoe, and Huhn planned the crimes permits only the single logical inference that they were in fact accomplices. (AOB 126-134.) Respondent disagrees. In light of the whole record, another logical inferenceis that _ Peretti and Paulson were present at Handshoe’s mobile homeduring those times simply because they wanted to do drugs and hang out with their friends. Moreover, neither Peretti nor Paulson were presentat the crime scene, and Anderson doesnot point to any evidence in the record to show that either ofthem shared the perpetrators’ criminal intent. Nor does Anderson point to any evidence that conclusively showseither Peretti or Paulson promoted, encouraged,or assisted the perpetrators in committing the crimes. For these reasons, thetrial court correctly refused to instruct the jury that Peretti and Paulson were accomplices as a matter of law. A. Trial Court Proceedings The court decided as a matter of law that Handshoe was an accomplice to the Brucker murder, and so instructed the jury. (28 RT 5064; - see 8 CT 1614.) Anderson requested the court to also find that Peretti and Paulson were accomplices as a matter of law, but the court refused that requeston the basis that the evidence did not indisputably lead to that conclusion. (28RT 4998-5004; 7 CT 1460-1461.) Instead, the court instructed the jury on the definition of an accomplice found in CALJIC No. 113 3.10, and directed the jury, using the standardized language ofCALJIC No. 3.19, that it must determine whether Peretti and Paulson were accomplices. (28 RT 5064; see 8 CT 1613, 1614-1615.) B. Standard of Review Claimsof instructional error are reviewed de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1210.) ‘C. Governing Law A defendant may not be convicted solely on the testimony of an accomplice. (Pen. Code, § 1111.) To sustain a conviction, accomplice . testimony must be corroborated by “other evidence as shall tend to connect the defendant with the commissionofthe offense. ...” bid.) An accomplice is “one whois liable to prosecution for the identical offense charged against the defendantontrial . . . .” Ibid.) Who determines whether a witness is an accomplice depends onthestate ofthe evidence: “if the material facts are in dispute, the question is factual andlies in the domain of the jury; conversely,ifthe facts are not in dispute the question is legal and to be determinedby thetrial judge.” (People v. Hoover (1974) 12 . Cal.3d 875, 880; accord People v. Sully (1991) 53 Cal.3d 1195, 1227 [“Accomplicestatus is a question of fact for the jury unless the evidence permits only a single inference.”]; People v. Rodriguez (1986) 42 Cal.3d 730, 759 [stating that only when facts relating to accomplice status “are _ clear and undisputed may the court determinethat the witnessis or is not an accomplice as a matter of law”].) In either case, where there is substantial evidence that a witness is an accomplice,the trial court must instruct the jury that his testimony should be viewed with caution and that a conviction may not be based on his testimony unlessit is corroborated by other evidence connecting the defendantto the chargedoffense. (People v. Boyer, supra, 38 Cal.4th at p. 466; People v. Zapien, supra, 4 Cal.4th at p. 982.) 114 To qualify as an accomplice, a witness must be chargeable with the crimeas aprincipal and not merely as an accessory after the fact. (People v. Sully, supra, 53 Cal.3d at p. 1227; see Pen. Code, $§ 31 & 32.) “An aider and abettor is chargeableas a principal, but his liability as such depends on whether he promotes, encourages, or assists the perpetrator and shares the _ perpetrator’s criminal purpose.” (Sully, at p. 1227.) “An aider and abettor will ‘share’ the perpetrator’s specific intent when he or she knowsthefull extent ofthe perpetrator’s criminal purpose and gives aid or encouragement with the intent or purpose offacilitating the perpetrator’s commission of the crime.” (People v. Beeman (1984) 35 Cal.3d 547, 560.) It is not sufficient to establish aider and abettorliability where the person “merely gives assistance with knowledgeofthe perpetrator’s criminal purpose.” (Sully, at p. 1227.) D. The Trial Court Properly Refused to Instruct the Jury That Peretti and Paulson Were Accomplice as a Matter of Law Because the Evidence Permitted Different Conclusions on That Issue Anderson contends“the logical inference from the evidence wasthat Peretti and Paulson were accomplices.” (AOB 129.) He points to Peretti’s and Paulson’s presence at one or more “mectings” in the months preceding the murder, during whichdetails ofthe proposed burglary were discussed. He.also points to evidence that Peretti was present at Handshoe’s mobile | home immediately before the crimesas the final preparations were made and while there were discussions about what they would do withthe loot, that Peretti gave misleading information to the police after the murder, and that she was given immunity in order to secure her testimony. Anderson acknowledges that neither Peretti nor Paulson handled weapons or were present at the scene, but observes that those factors are not dispositive. He then asserts that Peretti and Paulson were not credible witnesses, and may have attempted to shift blame away from themselves. Ultimately, Anderson 115 concludes: “In essence, given Paulson and Peretti not only knew but _ associated with the defendants, there was noreasonable explanationfor their presence with them during the planning stages unless part of and encouraging the group.” (AOB 131.) | Anderson’s argument that the evidence permits only the single inference that Paulson and Peretti were accomplices to the charged crimes is unpersuasive. With respect to Paulson, the only evidence ofhis alleged involvement inthe crimes that Anderson points to in the recordis the fact that Paulson waspresent on three occasions when various combinations of alleged conspirators discussed the idea ofrobbing the ownerofthe El Cajon Speedway. But Paulson’s presence during such discussions does not amount to clear and undisputed evidence that he promoted, encouraged, or assisted the perpetrators, or that he shared the perpetrators’ criminal purpose. Uncontested evidence established that over the several-month period of time during which these three discussions took place, Paulson considered Handshoe and Huhn to be goodfriends. (17 RT 2911-2912.) Paulson frequentlyhung out with them (and sometimes Lee), and they consumed drugs together. (16 RT 2561; 17 RT 2893, 2898-2899, 2906.) Thus, the evidence demonstrated that Paulson had reasons to be with the defendants other thanto plan a crime. In addition, there was no evidence _ that Paulson directly participated in the crimes in any fashion,thathe otherwise committed an act that encouraged or assisted others in the commission ofthe crimes, or that he shared the perpetrators’ criminal purpose. To besure, Paulson expressly testified that when the topic was raised, he decided that he did not want to be involved in the proposed criminal activity. (17 RT 2873, 2959.) Therefore, the record does not support the conclusion advanced by Anderson that Paulson’s presence duringthree discussionsofthe crime necessarily signaled his participation in the crimes as an aider and abettor. 116 A similar analysis applies to Peretti. She was Huhn’s girlfriend and a fellow drug-addict; therefore, like Paulson, she had reasons to be with Huhn andhis friendsother than to plan a robbery, and her presence among them whenthey happenedto talk aboutit did not necessarily reflect her participation as an accomplice. Further, Peretti testified she went to | Handshoe’s mobile homethe day ofthe murder with the intention of going out with Huhn to eat and to see a movie. (16 RT 2501, 2667.) When she arrived, she got the sense they did not wanther there, and that Handshoe told Anderson it was okay because she was Huhn’sgirlfriend. (16 RT 2503-2504.) Finally, Peretti testified she did not want any ofthem to go to commit the planned robbery,and that she told Huhn she did not want him to gO. (16 RT 2698-2699.) Thus, the evidence was not clear and undisputed that Peretti was an accomplice. Anderson does not address the specific evidence discussed above. suggesting that Paulson and Peretti were not accomplices. He does, however, make the generalassertion that “[e]ven ifthere were evidence inconsistent with their status as accomplices, this was not enoughto make an instruction on accomplice as a matter of law inapplicable.” (AOB 130.) In support ofthis assertion, Andersoncites the single case ofPeoplev. Medina, supra, 41 Cal.App.3d at pages 443-444. But Medinais inapposite; it does not state the proposition for which Andersoncites it, and does not even address the issue of accomplice instructions, Instead, the court in Medina reversed murderjudgments against two defendants on the ground that orders granting conditional immunity to the three principal prosecution witnesses denied the defendants a fair trial. (/d. at p. 449.) 117 E. Any Error Was Harmless Because the Evidence Sufficiently Corroborated Peretti’s and Paulson’s Testimony Even assuming thetrial court erred by failing to instruct that Peretti and Paulson were accomplices as a matter of law, the error was harmless because the record reveals there was ample evidence of corroboration. (People v. Whalen (2013) 56 Cal.4th 1, 60 [failure to instruct that a witness is an accomplice as a matter of law is harmlessifthere is sufficient corroborating evidence in the record].) “““Corroborating evidence may be slight, may be entirely circumstantial, and need not be sufficientto establish every element of the charged offense. . . .” The evidence “is . sufficient if it tends to connect the defendant with the crime insuch a way as to satisfy the jury that the accompliceis telling the truth.””” (Peoplev. Hartsch (2010) 49 Cal.4th 472, 499.) “The required corroboration must _comefrom a source other than another accomplice.” (People v. Price, supra, | Cal.4th at p. 444.) "Tn this case, several pieces of evidence that were independent of Peretti’s and Paulson’s testimony:(and independent ofHandshoe’s testimony—Handshoebeing anotheraccomplice) tended to connect . Andersonto the crime. Beginning in January 2003, Anderson was seen “quite frequently” at Handshoe’s trailer by one ofHandshoe’s neighbors. (19 RT 3267-3269, 3278-3279.) The day ofthe murder, witnesses saw a. Ford Broncothat looked similar to Anderson’s coming out ofBrucker’s driveway (18 RT 2980-2986, 2991; see 30 RT 5207), and speeding near Brucker’s home (18 RT 3000, 3002, 3086, 3090). Northeutt told Investigator Bakerthe following: he had seen Anderson wearing a “goofy” hairpiece and that Anderson drove the Ford Bronco mostofthe time (24 RT 4170); Anderson told him “something big” was going to happen and that it involved a safe (24 RT 4169, 4183); while watching a newscast with 118 Anderson about Brucker’s murder, Anderson admitted he had been involved, and then threatened Northcutt that he “would be next”ifhe said anything (24 RT 4169-4170). Hause (Anderson’s former girlfriend) testified that ten days after the murder, Anderson explainedto her that he was leaving San Diego because ofa parole violation and that he was driving the white truck because “they” knew his Bronco. (21 RT 3574- 3575, 3582, 3583-3584.) Hause also testified that Anderson had shaved the mustache he had worn since at least January. (21 RT 3575.) Finally, cell phonerecords showed there were several calls between Anderson’scell phone and Handshoe’s mobile homethe day of the murder and the surrounding days. (16 RT 2499, 2500; 20 RT 3304-3308, 3316-3321, 3327- 3332.) This evidence sufficiently corroborated the testimony of Peretti and Paulson implicating Anderson in the conspiracy and murder. XIII. THE EVIDENCE SUFFICIENTLY CORROBORATED THE ‘TESTIMONY OF PERETTI AND PAULSON . In Argument XIII, Anderson repeats the assertion he made in Argument XII that the alleged erroneous refusalto instruct the jury that Peretti and Paulson were accomplicesas a matter of law was prejudicial and requires reversal. (AOB 135-138.) To the contrary, for the reasons | stated in the harmlesserror section of the above argument, the evidence sufficiently corroborated the testimony ofPeretti and Paulson. Therefore, even ifthe court erred by failing to instruct the jury they were accomplices as a matter of law, the error was harmless and reversal is unwarranted. (People v. Whalen, supra, 56 Cal.4th at p. 60 [failure to instruct that a witness is an accomplice as a matter oflaw is harmlessif there is sufficient corroborating evidence in the record].) 119 XIV. THE TRIAL COURT PROPERLY INSTRUCTED THE JURY ON THE LAW OF ACCESSORY LIABILITY BECAUSE IT WAS RELEVANT TO ISSUES RAISED BY THE EVIDENCE Anderson contendsthetrial court erred by instructing the jury on the law of accessoryliability. (AOB 138-142.) According to Anderson,there wasinsufficient evidence to support this theory, and therefore the _ instruction should not have been given. Respondent disagrees. The instruction was properly given because substantial evidence supported the theory that Peretti was an accessory, andthe legal principles related to accessory liability where relevantto the issues raised by the evidence. Even if the instruction was unwarranted, it was harmless. A. Trial Court Proceedings Prior to closing arguments,the trial court instructed the jury on the legalprinciplesrelating to accomplices, including the definition of an - accomplice and therule that testimony of an accomplice must be - corroborated before it can be relied on to support a conviction. (29 RT 5062-5064, 5071.) An accomplice wasdefinedas “a person who, by reason of aiding and abetting or by being a memberof[a] criminal conspiracy, was | _ Subject to prosecution for the identical offenses” chargedagainst a defendant. (29 RT 5062.) The court directed the jury that it was to determine whetherPeretti was an accomplice. (29 RT 5064.) The defense arguedto the jury that Peretti was an accomplice whose testimony needed to be corroborated. (30 RT 5193-5195.) That argument was based on the evidence that Peretti was present in Handshoe’s mobile homeshortly before Brucker was murdered,at a time when Anderson, Handshoe, and Huhn wereplanning a robbery, and that she discussed with them using someofthe expected gains from the robbery to go shopping. (30 RT 5193-5194; see 16 RT 2500-2502, 2510-2518, 2535-2536, 2699, 2704; 22 RT 3792-3795.) Defense counselalso pointedto the evidence that 120 after Brucker waskilled Peretti did not report the murder (she went to the mall with Huhn), and she lied to police several times to conceal Huhn’s involvement. (30RT 5194-5195; see 16 RT 2551, 2645-2647.) Finally, the defense pointed to the fact that Peretti had been granted immunity. (30 RT 5195; see 16 RT 2653.) | After the defense argument, the prosecutor asked the court to instruct the jury on the definition of an accessory. (30 RT 5263.) The prosecutor explained that, “without the jury being aware ofthe fact that thereis anothercriminal liability theory here, and that is accessory [after] the fact, they’re going to be influenced to believe that if she was given immunity,it was becauseshe was an accomplice, and I just don’t think that’s fair under | the facts of this case.” (30 RT 5265.) The trial court agreed that the evidence justified giving an instruction on the law of accessory liability. (30 RT 5269.) To avoid confusion for the jury and to place the instructionsin context, the court decided to reread an instruction that definedprincipals in a crime (CALJIC Nos. 3.00), along with the instruction on accessory liability (CALJIC No. 6.40). Thus, before the prosecutor presented his rebuttal argument, the court instructed the jury as follows: _ Before Mr. McAllister closes the argument, J need to go back and addressa legal instruction — actually,plural. I’m going to reread one instruction that you’ve already heard. I’m not emphasizingthis at all, but I’m readingit so that I can read anotherinstruction that kind of goes with it that I overlooked. Persons whoare involved in committing or attempting to commit a crime are referred to as principals in that crime. Each principal, regardless of the extent or mannerofparticipation, is equally guilty. Principals include: one, those who directly and actively commit or attempt to commit the act constituting the crime,or, two, those whoaid and abet the commission or attempted commission ofthe crime. 121 Every person who,after a felony has been committed, harbors, conceals, or aids a principal in that felony with the specific intent that the principalmay avoid or escapefrom arrest, trial, conviction, or punishment, having knowledgethat the principal has committed that felony or has been charged with that felony, or convicted thereof, is guilty of the crime of | accessory to a felony, in violation ofPenal Code section 32. An accessory to a felony is not, by that factalone,a principalin that felony. (30 RT 5272-5273: 8 CT 1605, 1607.) In his rebuttal argument, the prosecutor argued that Peretti was not an accomplice; instead, he argued, she was merely an accessory based on her conductoflying to police after the murderin an attempt to conceal Huhn’s involvement. (30 RT5278-5279.) B. Standard of Review Claimsof instructional error are reviewed de novo. (People v. Cole, “supra, 33 Cal.4th at p. 1210.) C. Governing Law A trial court has a duty to instruct on the general principles of law relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154.) ““*The principles of law governingthe case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding ofthe case.” [Citation.]”” (ibid.) Conversely, “[g]iving an instruction that is correct as to the law but irrelevant or inapplicableis error.” (People v. Cross (2008) 45 Cal.4th 5 8, 67.) As discussed below, the law of accessory liability was closely and openly connectedwith the facts, and was necessary to assistthe jury in understanding the case. 122 D. TheTrial Court Properly Instructed the Jury on the Law OfAccessory Liability Because It Was Relevantto Establish That Peretti’s Grant of Immunity Did Not Necessarily Mean That She Was An Accomplice to the Crimes Charged The prosecutor wasright: under the facts ofthe case, the jury needed to be aware not only of Peretti’s potential liability as a principal under an accomplicetheory ofliability, but also of Peretti’s potential liability as an accessory; otherwise, the jury could have been misled about the significance of certain evidence. | Whenthe defense pointed to Peretti’s immunity as a factor in support ofthe argument that she was an accomplice, the jury had not been instructed on the law of accessory liability. Thus, in determining the significance of the grant of immunity, the jury could have logically deduced that Peretti’s immunity necessarily resulted from her potential liability as an accomplice, the only theory ofliability presented to them at that time. But the evidence implicated another explanation—thatis, the immunity could haveresulted from Peretti’s potential liability as an accessory only. __ This alternative explanation was plausible because there was substantial evidence to support the conclusion that Peretti did not aid and abet the crimes, and therefore that she was not an accomplice. Specifically, Peretti testified that she went to Handshoe’s mobile homethat day with the | intention of going out with Huhn to eat and to see a movie,that she did not want themto commit the robbery they were planning, and that she . specifically told Huhn she did not want him to go. (16 RT 2501, 2667, 2698-2699.) Moreover, Peretti remained behind-at Handshoe’s mobile home whenthe others left to commit the planned crimes. Anderson’s contention that the evidence wasinsufficient to implicate accessory liability is unpersuasive. ““The crime of accessory consists of the following elements: (1) someoneother than the accused,thatis, a principal, 123 must have committed a specific, completed felony; (2) the accused must have harbored, concealed,or aided the principal; (3) with knowledge that the principal committed the felony or has been chargedor convicted ofthe” felony; and (4) with the intent that the principal avoid or escape from arrest, trial, conviction, or punishment.’(People v. Nuckles (2013) 56 Cal.4th 601, 607.) There was substantial evidence of each ofthese elements. ~Thefirst elementis notin dispute, and the record manifestly contains substantial evidence that Huhnwasa principal in the murder ofBrucker. There was also substantial evidence of the remaining three elements. Peretti testified that when Huhnreturned to the mobile home, she could tell from his demeanorthat something “bad”had happened, and she had a discussion with Huhn aboutit. (16 RT 2644-2645.) Peretti also admitted that she lied to police by telling them that Huhn did not go along with the others, and | she explained thatshetold that lie because Huhn wasthe fatherofher child andshe loved him. (16 RT 2551, 2646-2647.) This evidence, which shows _ that Peretti initially provided a false alibi for Huhn,is sufficient to support liability as an accessory. (People v. Plengsantip (2007) 148 Cal.App.4th 825, 836 [“It is clear that certain lies or ‘affirmative falsehoods’ to authorities, when made with the requisite knowledge andintent, will constitute the aid or concealment contemplated by section 32.”]; see,e.g., People v. Duty (1969) 269 Cal.App.2d 97, 101-104 [upholding conviction for being an accessory based on statements by the defendantthat a principal in an offense was with him and nowherenearthe vicinity ofthe crime when it was committed].) E. AnyError Was Harmless Eveniftheinstruction on accessory liability was erroneously given, | Andersonis notentitled to relief unless he can show thatthe error resulted in a miscarriage ofjustice. (See People v. Flood (1998) 18 Cal.4th 470, 487 [stating principle that California’s harmlesserrorrule applies to all types of 124 ~ instructional error].) The trial court instructed the jury with CALJIC No. 17.31, which informed them that someinstructions may not apply: “The purpose ofthe court’s instructionsis to provide you with the applicable law so that you mayarrive at a just and lawful verdict. Whether some ofthe instructions apply will depend upon whatyoufind the facts to be. Disregard any instruction which applies to facts determined by you not to exist.” (30 RT. 5338; 8 CT 1622.) The instruction was not inherently prejudicial to Anderson,andin light of the whole record, it is not reasonably probable that a result more favorable to Anderson would have been reachedat the guilt phase if the instruction had not been given. (See People v. Cross, supra, 45 Cal.4that p. 67 [“Giving an irrelevant or inapplicable instruction is generally only a technical error which does not constitute ground for reversal.”’].) Likewise, there is no “‘reasonable (i.e., realistic) possibility that the jury would have rendereda different verdict’” at the penalty phase had the instruction not been given. (People v. Hamilton, supra, 45 Cal.4th at p. 917.) . XV. THE TRIAL COURT PROPERLY INSTRUCTED THE JURY THAT IT MUST DECIDE THE CASE BASED ONLY ON THE EVIDENCE FORMALLY PRESENTED DURING THE TRIAL PROCEEDINGS Andersoncontends the trial court failed to adequately respond to a juror’s question about whether, in assessing a witness’s credibility, he could consider his observations of thatwitness outside the courtroom. (AOB 143- 151.) Respondent disagrees. Thetrial court’s response to the question was consistent with the law,and did not deprive Andersonofa fairtrial. A. Trial Court Proceedings Atthe end ofthe first day of Peretti’s testimony, the court held a hearing outside the presence ofthe jury to address a note it had received from juror number 12, in which the juror asked the following question: “Can I figure a person’s attitude and demeanoroutside ofthe court room: 125 [{] i.e. specific witness actions in courts [sic] main area outside ofmain - entrance.” (7 CT 1434.) Juror number 12 was broughtinto the courtroom, and the court began by stating that the short answer to the question was “no,” and explained that the “instructions that I gave in terms of demeanor means demeanorwhile testifying.” (16 RT 2719.) The court proceeded to inquire whether the Juror had seen something that prompted the question. The juror respondedthat he saw a witness in the “common area” outside the courtroom who appeared to be “in a much more joyous and, you know, very high levity than what I would expect of somebody whois in this kind ofmagnitude ofa case. Andit just didn’t really appeal that, you know, can I weigh that the same way, where they’re really happy here but yet they’re completely opposite? And that’s whereI just wasn’t sure, ifyou could, you know,take that kind of opinion or not. I wanted to get a resolution. It won’t affect me.I just wanted to know whatthe right answer was.” (16 RT 2719.) Upon inquiry by Lee’s counsel, the juror said the witness he was referring to wasPeretti. (16 RT 2721.) Hefurther revealed that two other jurors observed Peretti’s demeanor, andthat the three ofthem discussed ~ that “that doesn’t seem, you know, the same demeanorthat they should have, and that’s where weleft it. It was like, okay, can we weighit or not? Andthatwasit.” (16 RT 2721.) The court told juror number 12 that it was “going to ensure that the. witnesses and the rest of the jurors understandthat there is not to be any mingling,” and confirmed with him that his observations outside the courtroom would not affect his evaluation ofPeretti’s testimony. (16 RT 2720.) After juror number 12 was excused, one ofAnderson’s attorney’s credibility—was important to the defense and that a juror should be argued that Peretti’s credibility—or more accurately her lack of allowed to consider her demeanor outside the courtroom. Hethenstated: “If — 126 a witness whohas just testified and is crying on the witness stand is seen secondslater in the hallway laughing it up, I think that is something that a juror should be able to consider in evaluating the credibility ofthe testimony that’s been presented.” (16 RT 2722.) The court invited counsel to offer a special instruction to that effect. (16 RT 2722.) Counsel for Andersonalso told the court that they saw Peretti, while | she was seated in the back ofthe courtroom after her testimony that day, endeavorto make eye contact with, and smile at, each juror as they left the — courtroom. (16 RT 2722-2723.) To resolve these issues, the court proposed admonishing the jurors the next morning“as to what can be considered and not considered as evidence in this case, and that they’re to give wide berth to witnesses. And I will indicate to them that it is my order that witnesses not communicate with them directly or indirectly, body language or otherwise. That that is something that will interfere with the fact finding process.” (16 RT 2723.) Anderson did not object to this proposed course of action; he simply asked that Peretti also be admonished. The court agreed to do so. (16 RT 2723.) | The following morning,the court instructed the jury as follows: It is important to recognize that a witness is allowed to communicate with trial juror only through the question and _answerprocedure. The taking oftestimony in the courtroom.[{] If, at any-time, you feel that a witness is attempting to communicate outsidethis approved procedure, you musttell me. Simply write a note and handit to the bailiff. Further, if you see a witness at a location other than a witness stand and the witness is engaged in conduct that may influence you in yourrole as a trial juror, you musttell me. Again, a simple note, handit to the bailiff. [J] And a reminder, and this is a reminder because I’ve already given you these legal instructions whenI offered some preliminary legal instructions at the time of opening statements. You must determine the facts in this case from the evidence received in this trial and not from any other source. Evidence meanstestimony, writings, material objects, or anything presented to the sensesthat are offered to prove the existence or 127 nonexistence of a fact. In determining the credibility of a witness, you may consider demeanorofthe witness while testifying and the mannerin which the witnesstestifies. (17 RT 2726-2737.) Anderson raised no objection to the court’s admonition. _ Later, during a conference concerning jury instructions, the court indicated Anderson hadoffered a special instruction addressingthis issue. The court stated the proposed instruction would be markedas a formally proposedinstruction; however, Anderson doesnotcite to the record where the proposedinstruction appears, and respondent’s review oftherecord failed to find it. Nonetheless, the court described the “essence” ofthe instruction to be that jurors “can consider the demeanorofthe witness present in the courthouse for the purposeoftestifying.” (25 RT 4446.) Anderson’s counsel agreed with this description of the proposed instruction. (25 RT 4446.) In pressing for the instruction, counsel observed the “basic rule”is that the jury can consider anything that has a tendency in - reason to impactcredibility, and argued that a juror should therefore be | allowed to consider a witness’ demeanoroutside the courtroom. (25 RT 4446.) The court tentatively decided not to give the proposed instruction, citing two reasons:First, because not all of the jurors would necessarily witness the same behaviorof a witness outside the courtroom; and second, because the parties had already agreed thatthe court should instructthe jury with CALJIC No. 1.00, “whichstates first you must determine what facts have been proved from the evidence received in thetrial and not from any other source, and I don’t believethat definition oftrial extends to the hallway or the patio.” (25 RT 4446-4447.) The court emphasizedits ruling wasonly tentative, and that Anderson could pursuethe issuelater ifhe 128 wanted to. (25 RT 4447.) When he was given the opportunity to raise the issue again, Anderson did notdo so. (28 RT 5020-5024.) B. Standard of Review The legal adequacy ofan instruction is reviewed de novo. (Peoplev. Cole, supra, 33 Cal.4th at p. 1210;see People v. Guiuan (1998) 18 Cal.4th $58, 569-570.) In considering whether error occurred, a reviewing court determines whether, in light of all the instructions, there is a “reasonable likelihood”that the jury misunderstoodthe applicable law. (People v. Kelly (1992) 1 Cal.4th 495, 525.) | C. The Trial Court Properly Responded to Juror Number 12’s Question Andersonasserts the jury asked the court whether jurors could consider a witness’s demeanorin the courthouse in assessing credibility, and that the court failed to directly answer the question and “ultimately [gave] no guidance on the matter.” (AOB 147-148.) Anderson suggestthat, as a result, the jurors “were left with the impression”that they could not “pay attention in the courtroom or discuss[] during deliberationsa juror’s observations in the courtroom.” (AOB 148.) Therefore, Anderson argues, the trial court’s decision not to instruct the jury with his proposed instruction violated the court’s duty under Penal Code section 1138 to inform the jury, upon the jury’s request, of any point of law, and violated his“rightto a fair trial conducted substantially in accordance with law.” __ (AOB 147, citing People v. Frye (1998) 18 Cal.4th 894, 1007.) Anderson’s argumentis flawed. | First, this was not a question from the jury; rather, it was a question from a single juror on his own behalf. | Second, contrary to Anderson’s assertion, the court directly answered the juror’s question. Juror number. 12 wanted to know ifhe could consider his observations of Peretti’s demeanor in the commonarea outside the 129 courtroom in assessing her credibility. (16 RT 2719.) The court responded that the short answer was “no,” and explained that the “instructions thatI gave in terms of demeanor means demeanor while testifying.” (16 RT 2719.) . Third, section 1138 is ‘not implicated, and could not have been violated under these circumstances. That section requires the trial court, “Talfter the jury haveretired for deliberation,” torespond to any request by thejury for informationon a point of law. (Pen. Code, § 1138.) As noted above, the question from juror number 12 was not a question from the jury. Further, the question came before the jury began deliberation,notafter. Therefore, section 1138did not govern the court’s responsibility with respect to the question from jeror number12. | Fourth, the failure to give the proposed instruction, whichin essence would havetold the jury it could “consider the demeanorofthe witness present in the courthouse for the purposeoftestifying” (25 RT 4446,italics | added), did not leave the jurors, in light of other instructions, with the incorrect impression that they were forbidden from considering a witness’s - demeanor insidethe courtroom. Twice duringthetrial, once at the | beginning and onceat the end, the court instructed the jury that it may . consider, in assessing the credibility of a witness, “the demeanor and mannerofthe witness while testifying.” (15 RT 2313-23 14; 29 RT 5037.) Because witnesses necessarily testify inside the courtroom, jurors would have hadnoreasonto think they could not rely on their observations of witnesses inside the courtroom in assessing their credibility. Finally, nothing about the court’s handling ofthis issue denied Anderson a fair trial. The court’s instruction to all the jurors that the demeanor and mannerofa witness while testifying could be considered in assessing credibility was a correct statement ofthe law: “‘The words used are by no meansall that we rely on in making up our minds aboutthetruth 130. _ofa questionthatarises in our ordinary affairs, andit is abundantly settled that a jury is aslittle confined to them as we are. They may, and indeed they should, take into consideration the whole nexus of sense impressions which they get from a witness.”(People v. Adams (1993) 19 Cal.App.4th 412, 438, quoting Dyerv. MacDougall (2nd Cir. 1952) 201 F.2d 265, 269; see also Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1358 [“A witness’s demeanoris ‘“part of the evidence”’”].) In contrast, Anderson cites no authority for the proposition that to ensurea fairtrial, an individual juror must be allowed to consider, during deliberation, impressions of a witnessgained during a chance encounter with that witness outside thetrial proceedings. To be sure, the law is to the contrary. (See Smith v. Phillips (1982) 455 U.S. 209, 217 [102 S.Ct. 940, 71 L.Ed.2d 78] [“Due process means ajury capable andwilling to decide the case solely on the evidence before it,.. .”]; Turner y. Louisiana (1965) 379 U.S. 466, 472-473 [85 S.Ct. 546, 550, 13 L.Ed.2d 424, 429] [“In the constitutional sense,trial by jury in a criminal case necessarily implies at the very least that the ‘evidence developed’ against a defendant shall come from the witness stand _ ina public courtroom wherethereis full judicial protection of the | defendant’s right of confrontation, of cross-examination, and of counsel.”]; People v. Holloway (1990) 50 Cal.3d 1098, 1108 [“‘Jurors in a criminal action are sworn to rendera true verdict according to the evidence. They cannot, under the oath which they take, receive impressions from any other source.’”].) | . D. Any Error Was Harmless Anderson contends that, absent the alleged error in the court’s failure. to give the instruction proposed by the defense, the jury likely would have concluded “Peretti was not a credible witness and rejected her testimony.” (AOB 151.) This position is untenable. 131 | First, it is based on the assumptionthat the failure to give the proposedinstruction inappropriately limited the jury’s ability to consider relevant evidence relating to a witness’s credibility. (See AOB 147-148.) But as discussed above, the court’s response correctly informed thejury that it must determine the facts from the evidence receivedin the trial and not from any othersource. Second, during closing argument, defense counseldid in fact point to Peretti’s demeanor to support her argumentthat Peretti was not a credible witness: “You saw her demeanoron the witness stand. You saw the way she laughed, the way she giggled. Mr. Roakepointed outthe body | _Movements, the scratching. You saw her demeanor. You saw how seriously she seemed to be taking these proceedings. That, her demeanor,is | something that you can consider in determining whether she’s a credible witness or not.” (30 RT 5239.) Finally, in light of the whole record, Peretti’s demeanor was a- . télatively insignificantfactor in determiningher credibility. The prosecutor acknowledgedin his argumentthat the witnesses were not angels, and stated rhetorically that he would notbe urging the jury to nominatePeretti for “motherofthe year and goodcitizen.” (29 RT 5082.) Peretti admitted ' during cross-examination that she lied to Huhn about her age whenshefirst met him,telling him she was 18 when she wasnot even 15. (16 RT 249- 2499, 2654-2655.) She also admitted that she initially lied to her parents and to police about Huhn’s rolein the murder.(16 RT 2551, 2646-2647, | 2683.) Patricia Ritterbush, one ofPeretti’s friends, testified she had | witnessed Peretti make up stories about things that did not happen, andthat Peretti wasaliar. (26 RT 4557.) Patricia Colgan, one ofthe persons who » frequently spent time at Handshoe’s mobile home,testified that Peretti “lies a lot.” (18 RT 3123-3124, 3137.) | 132 Based on the foregoing, it appears “beyond a reasonable doubtthat the error complained of did not contribute to the verdict obtained’” (Yates v. Evatt, supra, 500 U.S.at p. 403), and therefore is harmless under any standard. ' XVI. THE RECORD DOES NOT SUPPORT ANDERSON’S CLAIM THAT THE PROSECUTOR COMMITTED MISCONDUCT DURING THE TRIAL Anderson contends the prosecutor engaged in three instances of misconduct duringthetrial. In particular, he asserts the prosecutor personally vouched for the People’s case, misstated the evidence, and asked a witness argumentative questions. (AOB 152-164.) The record belies this contention. Alternatively, any error was harmless, A. Trial Court Proceedings Two instances of alleged misconduct occurred during the prosecutor’s argumentto the jury in the guilt phase ofthetrial. Anderson first points to the following statement of the prosecutor: “I told you whenI started this argumentthat the two defendant — but for the two defendants in this room, ~ Steven Brucker wouldbealive today. I believe with all my heart that I’ve provided you with the evidence to provethat that is true.” (30 RT 5330.) During a break following the prosecutor’s argument, Anderson objected to | this statementon the ground thatit constituted vouching. (30 RT 5333.) The court disagreed: “I don’t believe that was vouchingfor the credibility of anyparticular witness. I believe it was establishing that, in terms ofthe case that has been presented, the evidence that has been presented, the People have presented, and he was arguing he has presented a comprehensivecase. [{] I don’t believe it could be interpreted that Mr. McAllister has inside information, that he is communicating on what the jurors should rely in determining the credibility of any particular witness.” (30 RT 5334.) 133 Anderson next points to certain statements the prosecutor made during his rebuttal argument that related to Handshoe’s plea agreement. The challenged statements were made while the prosecutor was addressing the evidence that supported the theory that Lee was an aider and abettorto the Brucker murder, (See 30 RT 5285-5295.) At one point, the prosecutor was explaining that Handshoehad noreasonto falsely identify Lee as having been the person whofirst raised the idea ofrobbing the ownerofthe El Cajon Speedway: Handshoe, you haveto ask yourself again: Why lie about Randy Lee? How doesit help Brandon Handshoe? How doesit help Brandon Handshoeto lie about Randy Lee? Itjust doesn’t help. Yousee, this is that common-sense analysis.It just doesn’t help Brandon Handshoeto say, “yeah, I went along on the _ erime, and Eric shot the guy, and Apollo went up to the door with Eric, and I was the get-away person, and I stood there with _a walkie-talkie,waiting to notify Eric if somebody was coming, but somehowit’s going to help me to say Rand Lee was involved, that Randy Lee came up with the idea.” It doesn’t make Brandon Handshoeanylessliable to say that. It doesn’t help Apollo. Doesn’t help Brandon. Doesn’t help ' Eric Anderson. Doesn’t help anybody. I know the defense argument is: Look, the People made a deal. Those nasty prosecutors made a deal with Brandon Handshoeso he could avoid life without the possibility of parole. Instead, he’s going to get the walk in the park of 17 years in state prison. Is it a lesser sentence? Youbeit is. You betit is. Is it still a significant sentence? Youbetit is. But, you know,the thing about Brandon Handshoe’s ‘deal’ with the People is that it was done when it was done, and it was done before hetestified on the stand. And he could have blamedthis crime on Martians, and it wouldn’t have changedhis 17-year sentence. (30 RT 5295-5296.) 134 Anderson objected at that point on the groundthat the prosecutor’s - remarks misstated the evidence. The court responded by reminding the jury that the prosecutor’s statements were argument, and advising them that they will have a copy of the plea agreement.It further stated that the prosecutor would be allowed to argue his viewpoint on what the plea agreement - means. (30 RT 5296.) The prosecutor continued: | This would not have changed his sentence, if he came in and said: Martians. Now,ifyou could makea case for perjury, if you could say, ‘oh, geez, he perjured himself,’ yeah, you can do a prosecution for perjury, which is what we call a low-level felony, couple years maximum in state prison or something like that. . The point is: The deal was struck, and no matter what he said, he wasgetting 17 years. If he camein and saidit was ’ Martians that did it, the deal that he was goingto testify and get 17 years was a done deal. It can’t go up,it can’t go down; that’s the wayit is. | So you have to ask yourself: If that’s true ~ andit is — then why would he lie? Why would helie? Well, he has motivations for lying, too. He does. I mean, it’s the old concept of angels for actors in this group. He has motivations for lying because hestill wants to do whatever he can to help Apollo Huhn.Hestill wants to do whatever he can to help Randy Lee. Now, I submit to you, ladies and gentlemen, that’s why he’s talking to us about statements that Randy Lee made to him at different times. And during his debriefing, he tells us what Randy Lee says, and then when we cometo court, it’s not just, “well, he said, ‘you keep me out ofthis, and I’put money on your booksandtake care ofyour-family.’” . It becomes, “you keep me outofthis and prove my innocence, and I’Il put money on the books andtake careof your 135 family.” That’s an addition, and it’s an addition becausehestill wants to help his buddies. (30 RT 5296-5297.) Anderson objected again during the break at the endofthe prosecutor’s argument. He asserted that the plea agreement was revocable if Handshoedid nottestify truthfully, and therefore the prosecutor’s argument that Handshoe “could havetold a tale that was not true” andstill receive the promised sentence wasfalse and misleading. (30 RT 5332-5333.) The court rejected the notion that misconduct occurred: [W]hen the objection was made, it did appear to methatit might have been a characterization that was not borne out by the language of the agreementitself. And it couldbe, however, that _ any reasonable person reviewing that would conclude that what is the truth and whatis notthe truth is going to be hard to establish; and, therefore, it would be difficult to revoke that agreement. Myresponsewasto leave that decision in the handsofthe jurors, simply because the agreement, the precise languageof . that, is going tobe accessible. They caninterpret and determine if it was mischaracterized by Mr. McAllister. (30 RT 5333-5334.) Thefinal instance of alleged misconduct involves the prosecutor’s cross-examination of Stevens. In an attempt to impeach Stevens by | establishing the existenceofa bias in favor ofAnderson, the prosecutor asked Stevens, “Is it fair to say that you’do whateverit takes to help Mr. Anderson avoid responsibility for his actions in this case?” (27 RT 4806.). The following.colloquy occurred: A. No.It’s —I-—I took an oath here and I’m planning on _ telling the truth. Q. Now, you took an oath so thatyou wouldn’t perjure — . yourself? A. That’s correct. 136 Ms. Vandenbosch: Objection, argumentative your honor. The Court: This is — do it in terms ofthose foundational questions. The question and answerstandsasto the oath. Nor more oath questions. Mr. McAllister: Okay. By Mr. McAllister: Q. Well, what you’re telling us here is that you, who has been convicted of these felony offenses that you’ve told us ~ about, just won’t perjure yourself. Ms. Vandenbosch: Your Honor, argumentative. The Witness: Sir, I do not plan on telling any lies. 1 am telling the truth, honest to God. The Court: Okay. He’s telling — he indicates that he’s telling the truth. [J] Mr. McAllister, next question. (27 RT 4806-4807.) The prosecutor moved on to other topics. B. Standard of Review Claims ofprosecutorial misconduct are reviewed de novo. (People v. Uribe (2011) 199 Cal.App.4th 836, 860.) C. The Prosecutor Behaved Appropriately in Each of the Instances Cited by Anderson A prosecutor’s conduct violates the federal Constitution whenit “‘so infected the trial with unfairness as to makethe resulting conviction a denial of due process.’” (Darden v. Wainwright (1986) 477 U.S. 168, 181 | [91 L. Ed. 2d 144, 106 S. Ct. 2464], quoting Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643 [40 L.Ed.2d 431, 94 S.Ct. 1868]; accord People v. Dykes (2013) 46 Cal.4th 731, 760.) Conduct that does not result in an unfair trial—and therefore that does not violate the federal Constitution— maystill violate California law, but only if it involves “deceptive or reprehensible methods” designed to persuadethetrial court orthe jury. 137 (People v. Riggs (2008) 44 Cal.4th 248, 298.) When a claim ofmisconduct is based on a prosecutor’s remarksto the jury, the defendant must show a reasonable likelihood the jury understood or applied the remarks in an improper or erroneous manner. (People v. Frye, supra, 18Cal.Ath atp. 970.) “In conducting this inquiry, we ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.” (/bid.) For the reasons discussed below, the conduct of the prosecutor challenged by Anderson wasneither deceptive nor reprehensible, nor did it render the trial unfair. 1. The prosecutor did not inappropriately vouch for his case Anderson contends the prosecutor engagedin inappropriate “vouching” whenhetold the jury he “believe[d] with all my heart that I’ve provided you with the evidence to prove”that Anderson was responsible for Brucker’s death. (30 RT 5330.) Respondentdisagrees; this statement did not amount to misconduct. “The general tule is that improper vouching for the strength of the 6665' prosecution’s case ‘“involves an attempt to bolster a witness by reference to facts outside the record.”’” (People v. Huggins (2006) 38 Cal.4th 175, 206.) Consequently, prosecutors may not invoke “their personalprestige, reputation, or depth ofexperience, or the prestige or reputation oftheir office, in support ofit.” Ud. at pp. 206-207.) For example, a prosecutor may not compare a defendant’s case negatively to other cases the prosecutor knowsabout orhastried, nor mayhe offer a personal opinion whenit is based solely on his experience or on other facts outside the record. (Jd.at p. 207; see, e.g., People v. Medina (1995) 11 Cal.4th 694,757 [prosecutor’s | commentto jury that “no case that I have ever seen has this amountof - overwhelming evidence pointing to the defendant’s guilt” was improper] (italics in original).) 138 Onthe other hand, it is not misconduct“to ask the jury to believe the prosecution’s version of events as drawn from the evidence.” (People v. Huggins, supra, 38 Cal.4th at p. 207.) “Closing argumentin a criminaltrial is nothing more than a request, albeit usually lengthy and presented in _ narrative form, to believe each party’s interpretation, proved orlogically inferred from the evidence, ofthe events that led to thetrial. It is not misconduct for a party to make explicit what is implicit in every closing argument, .. .” (/bid.) Thus, in Huggins, the prosecutor did not commit misconduct when he argued, regarding the defense’s version of events, “Noneofthis can be true. Please believe me. Hehaslied throughhis teeth in trying to sell this story to you.” (Id. at p. 206.) Moreover, “q prosecutoris free to give his opinion on the state ofthe evidence, and in arguing his case to the jury, has wide latitude to comment both on its quality and the credibility of witnesses.” (People v. Padilla (1995) 11 Cal.4th 891, 945.) | Here, the prosecutor’s statement amounted to nothing more than a . statement of his opinion that the evidence proved Anderson was responsible for Brucker’s murder. The fact that he used the phrase “with all my heart” did nottransform the character ofthat statement from a proper opinion aboutthe state of the evidenceinto improper vouching; it merely expressed ‘sincerity. Further, as thetrial court rightly pointed out, the prosecutor’s statementdid not suggest that the jury shouldcredit his opinion aboutthe state of the evidence based on “inside information” that only the prosecutor knew of. (30 RT 5334.) Therefore, the prosecutor’s statement did not constitute improper vouching. (See People v. Green, supra, 27 Cal.3d atp. 35 [stating that the concern over vouchingis “the risk that the jury will infer that the prosecutor’s belief is based at least in part on proofof guilt that was not—and perhaps could not have been—introducedat the trial”) Anderson’s reliance on two cases to support his argumentto the contrary is misplaced because,in those.cases, unlike here, the prosecutor either 139 expressedhis personal belief as to the reliability of a witness (People v. Cotton (1959) 169 Cal.App.2d 1, 2-3), or “pledged in support ofthe veracity oftwo witnesses’ testimony”the “faith and integrity”ofthe district attorney’s office and the police department (People v. Adams (1960) 182 Cal.App.2d 27, 34-35). . 2. The prosecutor did not mischaracterize the evidence Anderson also contends that the prosecutor committed misconduct by mischaracterizing the nature ofthe plea agreement betweenthedistrict attorney’s office and Handshoe. (AOB 158; see People v. Hill, supra, 17 Cal.4th at p. 823 [“mischaracterizing the evidence is misconduct”].) . According to Anderson,the prosecutor’s comments conveyedto the jury that Handshoe would receive the benefit of the plea bargain evenifhe lied. during his testimony, which directly contradicts the terms ofthe bargain. | (See 43 Supp. CT.9009 [copy ofplea agreement whichstates that Handshoe “shall lose the benefits of this agreement for any intentional deviation from the truth, andif a false statement occurs while he is on the ‘witness stand, he shall be subjected to prosecution for perjury,”and that “It]his agreementis automatically voided ifBRANDON HANDSHOE violates his obligation totell the truth”].) Anderson’s contention may be superficially appealing based on the words used by the prosecutor. However, whenplaced in context ofthe broader argumentthe prosecutor was making, Anderson’scontention losesits force, and there is no reasonable likelihood that the jury understood the comments in an improper manner. The prosecutor’s comments aroseat a time in his rebuttal statement when he was arguing that the evidence wassufficient to prove that Lee acted as an aider andabettorin the Brucker murder.In particular, immediately preceding his discussion ofHandshoe’stestimony, the 140 prosecutor addressed the testimony ofPeretti and Paulson, and argued that their testimony implicating Lee wascredible. (30 RT 5285-5293, 5295.) Amongtheways he endeavored to makethis point, the prosecutor asked rhetorically how lying about Lee’s involvement would have helped either Peretti or Paulson, and what motive they would have hadto falsely _ implicate Lee. (30 RT 5291-5292.) He proceeded to use the same technique to argue for Handshoe’s credibility. The prosecutor then addressed Handshoe’s plea agreement because Anderson’s counsel had argued that the agreement provided Handshoe a motive to lie. Anderson’sattorney told the jury: And Brandon Handshoeis a prime example ofwhy an accomplice testimony [sic] is so untrustworthy andis so tainted. You have a young man whowas19 at the time ofhis arrest. You have a young man whohasspent the last two years in custody, the last two years, knowing heis facing a sentenceoflife without the possibility ofparole, the possibility ofnever getting . out of custody. He has spent those two years trying to reach a plea bargain, trying desperately to reach a plea bargain, and he knowsthe only hope ofhim getting anything other than life without the possibility ofparole is giving the prosecution what he knows they want to hear, because he’s beensitting at all the court hearings throughout the preliminary hearings for thelast two years. He knows what they want, and he’s bound and determined to give it to them, to get what he wants. (30 RT 5192.) To rebut the suggestion that the veracity ofHandshoe’s testimony was suspect in light ofhis plea agreement, the prosecutor made the statements that Anderson challenges here. Viewedin this context, the prosecutor’s statements are properly understood as nothing more thanpointing out, correctly, that Handshoe could not secure a better sentence by “giving the prosecution what he knows they want to hear” during his testimony, 141 becausethe sentence had beenset before hetestified. Therefore, the prosecutor did not mischaracterize the plea agreement. Norshould this Court infer that the jury misunderstood the prosecutor’s point. The plea agreement was admitted in evidence, and plainly states that Handshoe “shall lose the benefits ofthis agreement for anyintentional deviation from the truth, . . .” (43 Supp. CT 9009.) The court directed the jury’s attention to the plea agreement when Anderson objected to the prosecutor’s remarks. (30 RT 5296.) Further, Handshoe testified that he had already been promised a sentenceof 17 years in exchangefor agreeingto testify truthfully, and that a failure to testify . truthfully would violate the terms of his plea bargain. (22 RT 3807-3808.) In light of these facts, and given the context of the prosecutor’s comments as discussed above, there is not a reasonable likelihood that the jury understood, or applied in an erroneous manner, the prosecutor’s remarks. 3. The prosecutor did not ask argumentative questions Lastly, Anderson contendsthe prosecutor committed misconduct by asking argumentative questionsduring cross-examination of Stevens. Argumentative questionsare those “designed to engage the witness in an argumentrather than to elicit facts within the witness’s knowledge.” (Peoplev. Mayfield (1997) 14 Cal.4th 668, 75 5.) A prosecutor should refrain from asking such questions, (People v. Johnson (2003) 109 _ Cal.App.4th 1230, 1236.) At the sametime, “A prosecutordoes not commit misconduct by challenging the credibility ofa defense witness... .” (People v. Earp, supra, 20 Cal.4th at p. 894.) Here, the prosecutor was attempting to elicit from Stevens that he was biased in favor ofAnderson, and to clarify, after Stevens raised the issue, Steven’s attitude towardthe giving oftestimony—i.e., whether he was willing to lie to help Anderson or committed to unerringlytell the truth. 142 Both topics were relevant to Stevens’ credibility and therefore proper | subjects for cross-examination. (See Evid. Code, § 780, subds. (f) & (j) [factors relevant to a witness’s credibility includethe existence ofa bias, interest, or other motive, and the witness’s attitude toward the giving of testimony].) D. Any Error Was Harmless Assuming, arguendo, that any orall ofthe challenged conduct amounted to misconduct, it did not result in a miscarriage ofjustice. The prosecutor’s isolated comment, “T believe with all my heart that I’ve provided you with the evidence to prove” that Anderson wasresponsible for Brucker’s death (30 RT 5330), was patently unimportantto the jury’s verdict when viewedin context of the entire record. So too was the form of _the two questions put to Stevens about whether he waswilling to commit perjury. As to the prosecutor’s alleged misstatement about Handshoe’s plea agreement, defense counsel immediately objected to the statement, and the trial court admonished the jury that the prosecutor was merelystating his . viewpoint about the meaning ofthe agreement. Further, the agreement itself “was admitted in evidence and therefore available for the jury to review for itself. (30 RT 5296.) Therefore, there is no reasonable doubt that the alleged instances of misconduct, eitherin isolation or combined, did not affect the outcomeofthe trial. Accordingly, any error committed by the prosecutor was harmless under both Chapmanv. California, supra, 386 U.S.at page 24, and People v. Watson, supra, 46 Cal.2d at page 836. XVII. THE TRIAL COURT DID Nor ERR BYFAILING TO CONDUCT AN INQUIRY INTO THE IMPARTIALITY OF THE MEMBERS OF ANDERSON’S JURY AFTER THERE WERE PUBLISHED ACCOUNTSOF THE VERDICT IN HUHN’S CASE Anderson contendsheis entitled to a new trial because, while the jury that heard his case (referred to in the record as the Lavender jury) wasstill 143 deliberating, the court accepted and recordedthe verdict ofthe jury that heard Huhn’s case (the Gold jury), and because the court did notthereafter inquire into whether the members ofthe Lavenderjury became aware ofthe verdict in Huhn’s case. (AOB 165-172.) Respondent disagrees. Following the recording of the verdict against Huhn,the trial court exercised sound discretion in taking steps to ensure the impartiality ofthe jurors in Anderson’s case. Any error was harmless. A. Trial Court Proceedings The Gold jury began deliberating the case against Huhn on Monday morning, June 20, 2005. (9 CT 1901.) That afternoon, while closing arguments were ongoing in the case against Anderson, defense counsel requested that, in the event the Gold jury reached a verdict before the Lavenderjury did, the verdict in Huhn’s case be sealed until the jury in Anderson’s case concluded deliberation. (29 RT 5181.) The purposeofthat "request was to ensure that the members ofAnderson’s jury were not . exposed to or influencedby the verdict in Huhn’s case. (See 29 RT 5182; 40 RT 5808.) The prosecutor objected to the proposed course ofsealing the verdict because Huhn indicated he would not waive his rights to have the jurors polled about their verdict. (29 RT 5180-5182; see Pen. Code, § 1163 [“Whena verdict is rendered, and before it is recorded, the jury may be polled,at the request ofeither party, in which case they mustbe severally asked whetherit is their verdict, and if any one answer in the negative, the jury mustbe sent out for further deliberation.”].) The concern wasthat if theverdict was sealed andthe polling ofthe juror’s delayed, something could happen to one or moreofthe jurors that would prevent them from affirming their verdict and thereby prevent the recording ofthe verdict. (See 29 RT 5182[trial court summing upthe concern ofthe Peopleas, “If there is a verdict and we’re goingto seal it, how do we ensurethat that 144 becomesan official verdict at some point in time, should there be a loss ofa juror?”].) | Anderson’s jury began deliberation on Wednesday, June 22, 2005. (9 ~ CT-1911,) On Thursday, June 23, the Gold jury sent a noteto the court stating that it had reached verdicts onthe charges against Huhn. (9 CT 1916.) Anderson’s jury wasstill deliberating. The court discussedwith the prosecutor and Huhn’s counsel how to proceed with the verdict in light of Anderson’s requestthat it be sealed until his jury completed deliberation. Neither Anderson norhis attorneys were present. The court stated its preferenceto seal the verdictand order the jurors to return on the following Wednesday, June 29, to announce the verdict. (40 RT 5815-5816.) Huhn’s attorney stated she preferred to have the verdicts announced and recorded without delay, and stated that Huhn is not willing to waive any rights _Tegarding polling the jurors or having the verdict recorded that day. (40 RT 5813-5814, 5816.) In light ofHuhn’s refusal to agree to the court’s proposal and waive any rights implicated thereby, the prosecutor also objected to the court’s proposed course of action and requested that the "verdicts be verified and recorded without delay. (40 RT 5811-5818.) | _ The court concluded that without a waiver of rights from Huhn, it was required by Penal Code section 1147to bring the jury into the courtroom and announce the verdict without delay. (40 RT 5819.) That section states in full: “When the jury have agreed upontheir verdict, they must be conducted into court by the officer having them in charge. Their names must then be called, and if all do not appear, the rest must be discharged without giving a verdict. In that case the action may be again tried.” The courtproceeded in open court to hear and record the verdict in “Huhn’s case. (32 RT 5381, 5383.) That afternoon, when Anderson’sjury finished deliberating for the day, the court allowed the jury to separate for a 145 three day weekend, and ordered them to return on Monday.Beforeit released the jury, the court gave the following admonishment: Donot discuss anything concerning the case with anyone. I’m going to repeat that. Do not discuss anything regarding the case with anyone. That means family members, spouses, brothers, sisters, neighbors, you cannot talk about this caseat all. The only time you can talk aboutthis case is when you ‘return Monday morning and you’re backin the jury room with all 12 jurors present. Do notread, view,listen to any account or discussion of the case reported in the news media. Please be cautious. This is a long period oftime where you’re going to be away from the courthouse. Don’t let any family member coax you into looking at something that they feel might be associated with the case. Be cautious, don’t scan the headlines, just ignore them, ifyou would, the local section, regarding any type of criminalcase. Donotvisit or view the premises or place where the offenses charged were allegedly committed or any other place or premise involvedin the case. Do not conduct any study or investigate any of the issue raised during thetrial or deliberations to this point. Do not consult any reference work or internet source for assistance on any issue pertainingto the case. In other words, don’t do any homework. All the work on this case is to be donein the jury room with all ofyour fellow jurors present. Any uncertainty about the scope of these orders? Ifthere is, please let me know,becauseit is so important that you abide by these, (32 RT 5388-5389.) The jurors returned on Monday morning and resumeddeliberation. (9 CT 1924-1925.) Meanwhile, the court convened a hearing with Anderson andall counsel present. Anderson’s counsel indicated his objection to the fact that he had not been notified when Huhn’s jury reached a verdict and . that he was not provided an opportunity to object to the taking and recording of the verdict on that day. He furtherobjected that “there were no 146 precautions taken to isolate our deliberating panel from the chance ofbeing tainted by publicity surrounding the Huhn verdict.” (33 RT 5419.) Anderson offered as exhibits two articles about the Huhn verdict. One was an online article published at 4:00 p.m. on Thursday, June 23, the day the verdict was recorded. The second article was published in the newspaper on Friday, June 24. (33 RT 5418.) According to Anderson’s counsel, botharticles referred to Anderson “in particularly demeaning terms, again using the ‘Stressed Eric’ nomenclature.” And the newspaper article indicated that Huhn participated in the attempted robbery only because he wasafraid ofAnderson, who was characterized in the article as a “maniac with a gun.” (33 RT 5422.) | Laterthat afternoon, the jury indicated it had reached a verdict. The verdict was thereafter announced and recorded. (33 RT 5424-5433; 9 CT 1926.) B. Standard of Review “The decision whether to investigate the possibility ofjuror bias, incompetence, or misconduct—like the ultimate decision to retain or discharge a juror—rests within the sounddiscretion ofthetrial court.” (People v. Ray (1996) 13 Cal.4th 313, 343.) j on The Trial Court Exercised Sound Discretion in Dealing | withthe Verdict in theHuhn Case and the Publicity That Followed Anderson accusesthetrial court of “not taking precautions to ensure the impartiality ofAnderson’s jury following the verdict in Huhn’s case... .” (AOB 167 [sub-heading B]; see also AOB 168.) “An impartial © jury is one in which no memberhas been improperly influenced [citations] and every memberis capable and willing to decide the case solely on the evidence beforeit [citations].” (People v. Hensley (2014) 59 Cal.4th 788, 824, internal quotation marks omitted.) Anderson furtherclaimsthetrial 147 court erred becauseit did not ask the jurors if they had become awareofthe Huhn verdict and, if so, whether they could nonetheless decide Anderson’s case impartially. (AOB 168.) Anderson then assumesthat one or more | jurors was exposed to information about the Huhn verdict. Finally, Andersonasserts that a presumption ofprejudice arose becauseofthis juror misconduct, that the record fails to rebut that presumption, and that reversal is therefore required. (AOB 171-172.) These assertions lack merit. Thetrial court did take precautions to prevent the jury from becoming aware ofthe Huhn verdict, and Anderson cites no authority that would have required the court tosealthe Huhn verdict or issue a gag order as Anderson suggests. _ Further, Anderson offered no evidence to show that any juror actually became aware ofthe Huhn verdict during the course of deliberation. . Because there was no evidenceofjuror misconduct, no presumption of prejudicearose and reversal is unwarranted. 1. The trial court took appropriate steps to ensure the impartiality of the jury Anderson asserts the trial court did not take any precautions to ensure the impartiality of the jury after the verdict inthe Huhn case, and that such inaction constituted error. Anderson is wrong on both counts. | The verdict in the Huhn case was announced and recorded on Thursday, June 23. When the jury in Anderson’s case stopped deliberating that afternoon,the court instructed them to avoid exposure to media accounts ofthe case, and also specifically told them to avoid accounts “regarding any type of criminalcase.”(32 RT 5388.) The jury did|not- reconvene until Monday morning, June 27, and reached a verdictlater that day. Thus, contrary to Anderson’sassertion, onthe one occasion whenthe jury had the potential to be exposed to the Huhn verdict before their deliberation completed (between recessing on Thursday afternoon and 148 reconvening Monday morning), the court acted to prevent the jury from learning of the Huhn verdict and to preserve their impartiality. Thetrial court was not required to do more. Anderson states in the . heading to this argumentthat “the trial court erred in failing to seal the verdict in Huhn’s case or issuing agag order... .” (AOB 165.) This assertion is contrary to controlling authority. The First and Fourteenth Amendmentsto the federal Constitution grant to the public the rightto attend trial proceedings in criminal prosecutions. (Richmond Newspapersv. Virginia (1980) 448 U.S. 555, 575-580 [100 S.Ct. 2814, 65 L.Ed.2d 973] (plurality opinion.) Thus, “[a]bsent an overriding interest articulated in ‘findings, the trial of a criminal case must be open to the public.” (id. at p. 581; accord Press Enterprise Co. v. Superior Court ofCalifornia (1984) | 464 U.S. 501, 510 [104 S.Ct. 819, 78 L.Ed.2d 629] [“The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.”].) In NBC Subsidiary (KNBC-TYV), Inc. v. Superior | Court (1999) 20 Cal.4th 1178, at pages 1217-1218, this Court held: [Blefore substantive courtroom proceedings are closed or transcripts are ordered sealed, a trial court must hold a hearing -and expressly find that (i) there exists an overriding interest supporting closureand/orsealing;(ii) there is a substantial probability that the interest will be prejudiced absent closure and/or sealing; (iii) the proposed closure and/orsealing is - narrowly tailored to serve the overriding interest; and (iv) there is no less restrictive means of achieving the overriding interest. | (Italics in original, footnotes omitted.) | This Court also noted that jurors are presumed to follow instructions “to avoid media coverage, and to disregard coverage that they happen to hear or see,” and instructed that “cautionary admonitions andinstructions must be considered a presumptively reasonable alternative” to closing a hearing—“a presumption that can be overcomeonly in exceptional 149 _circumstances.” (Id. at pp. 1223, 1224.) In light ofthese authorities, thetrial court did not abuseits discretion by choosing notto seal the jury verdict in the Huhn case. 2. Thetrial court did not abuseits discretion by not asking the jurors if they had been exposed to media accounts of the verdict Section 1089 provides in part: “If at any time . . . a juror dies or becomesill, or upon other good cause shown to the court is foundto be ~ unable to perform his orher duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged . . . .” Underthis statute, “oncea trial court is put on notice that | good causeto discharge a juror mayexist, it is the court’s duty to make whatever inquiry is reasonably necessary to determine whether the juror _ should be discharged.” (People v. Martinez (2010) 47 Cal.4th 911, 941, internal quotation marks omitted.) However, a hearing is required “only where the court possesses information which,ifproven to be true, would constitute ‘good cause’ to doubt a juror’s ability to perform his duties and — wouldjustify his removal from the case.” (/d. at p. 942, internal quotation marks omitted.) The decision to investigate possible juror misconductrest with the sound discretion ofthe trial court. (Jbid.). Based on Martinez, a trial court’s duty to inquire into possible juror misconductis triggered only when it possess informationthat,iftrue, would constitute good cause to doubt a juror’s ability to perform his duties and. would justify his removal from the case. No such information was presented to the trial court in this case. The only information presented to the court wasthat the verdict in the Huhn case was reported in the local newspaperand in an online article; there was no information that any juror read thosearticles or even became aware ofthem. Therefore, there was no information before the court that any juror had engaged in misconduct. (See 150 generally, People v. Cummings, supra, 4 Cal.4th at p. 1331 [statingit is misconduct for a juror to read, even inadvertently, a newspaperarticle relatingto thetrial].) In turn, the court had no duty to-investigate the matter, nor did the court abuseits discretion in failing to do so. Thecases relied on by Anderson to support a contrary conclusion are | inapposite. In People v. Cummings, supra, 4 Cal.4th 1233, this Court stated that ifajuror inadvertently reads a newspaper accountrelating to the trial, 6665the trial court should conduct a hearing “‘into whether and to what extent the jury as a whole may have been affected and whether there was good 939 (Id. at p. 1332, quoting People v. Hernandez (1988) 47 Cal.3d 315, 338.) Here, unlike in Cummings, there causeto discharge anyofthe jurors. was no information presented to the trial court that any juror had read an article about thetrial. Accordingly, the duty identified in Cummings to conduct a hearing to ascertain the potential impact of such misconduct did notarise. " The two federalcasesrelied on by Andersonare alsoinapposite because they involved the application of federal criminal procedure—nota constitutional rule—to find that thedistrict court should have inquired of the jurors about media publicity. (See United States y. Bermea (Sth Cir. 1994) 30 F.3d 1539, 1557-1560; United States v. Aragon (Sth Cir, 1992) 962 F.2d 439,441, fn. 3.) . D. Any Error Was Harmless Asnoted above,thereis no evidence in the record to suggest that any juror read or otherwise became awareofthe news accounts ofHuhn’s verdict. Accordingly, the record does not show that any juror was unable to perform his or her duty as a juror due to the news accounts ofHuhn’s verdict. (Cf. People v. Martinez, supra, 47 Cal.4th at p. 943 [finding no prejudice in the trial court’s decision not to ask a juror about conversations she had witha district attorney investigator after the trial had begun 151 becausethe record failed to showthat, during those conversations,the juror was exposedto information about the case that she did not already know, and, therefore, that she was unableto fulfill her functions as a juror].) Therefore, assuming, arguendo,thetrial court should have investigated whether any juror had been exposedto the verdict in Huhn’s case,its failure to do so does not warrant reversal under any standard. (See Jd. at p. 943, fn. 6 [“Since wefind noviolation of section 1089,a statute that we | have previously held is consistent with state and federal constitutional proscriptions, our conclusion also necessarily disposes ofdefendant’s state and federalconstitutional claims.”].) XVII. THE RECORD DOES Nor SUPPORT ANDERSON’S CLAIM OFJUROR MISCONDUCT Anderson contends the jjury committed misconduct when a document thatwas not admitted into evidence was mistakenly placed in the jury room during deliberation. (AOB 172-178.) Respondent disagrees. Thetrial _court’s mistake did not amountto juror misconduct. In any event, sending the documentinto the jury room did notresult in a miscarriage ofjustice. A. Trial Court Proceedings The prosecution called John Pasquale as a witness. Pasqualetestified that he spent time as Anderson’s cell mate in the Harney County jail in Oregon. (24 RT 4150.) Duringtheir time together, Anderson showed Pasquale a handcuffkey andtalked about escapingfrom thejail. (24 RT 4151.) Amongthe ideas Anderson shared wasto escape during the ' nightshift when there was only one guard on duty; Andersonsaid he would “pound|] the guard’s headinto the wall.” (24 RT 41451-4152.) Anderson - also told Pasqualethat he (Anderson) should have grabbed a guard’s gun, _shot him, and taken offwhen he hadthe chance on one occasion when both — Pasquale and Anderson were being escorted to a courtroom in Harney | County. (24 RT 4152.) . 152 On cross-examination, the defense attempted to impeach Pasquale, in part, by showing he had a motiveto fabricate evidence that was prejudicial to Anderson. To this end, the defense asked Pasqualeto relate to the jury portions of three letters he wrote to the prosecutor after being subpoenaed to testify in this case. The letters were marked as defense exhibits, and all were admitted into evidence. (24 RT 4157; 28 RT 4977; 8 CT 1638.) In two ofthe letters, Pasquale, in essence, sought assistance from the prosecutor in getting him released from prison in Colorado in exchangefortestifying in this case; in the third letter, Pasquale informed the prosecutor that he had refused to talk with a defense investigator about the case. (24 RT 4158- 4160.) ~ Relevantto the issue Andersonraises on appeal, one of theletters begins with the following language: Dear Mr, McAlister I have been subpoenaedto be a witness in the above case by your office. Unfortunately I am presently incarserated in Colorado Springs, CO. There’ is no doubt in my of Brandon Handshoe’s guilt in your case against him because of information he disclosed to me in Burns County Jail in Oregon where we shared cell. I would like to help you convict him of murder an see to the fact that he neverkills again. (43 CT 8948 [Def. Exh. Q-1], misspellings in original.) Pasquale explained during his testimony that he referred to Brandon Handshoe because he | believes Anderson originally identified himself to Pasquale as Brandon _ Handshoe.(24 RT 4158-4159.) | On redirect examination, the prosecutor identified a letter datedJune 15, 2004, written on letterhead of the district attorney, and asked Pasquale if he received that letter in response to oneofthe letters he had written to the prosecutor. The letter was markedas Plaintiff's Exhibit 79. (24 RT 153 4164-4165.) The letter, addressed to Pasquale and signed by the prosecutor, states in full: . | I received your letter postmarked June 1, 2004, just yesterday. I appreciate yoursituation but I am afraid that thereis nothing I can do for you regarding any cases you have pending. I also appreciate how difficult it is to find yourself in the position of being compelled to testify in such a serious case while incarcerated as an inmate. But, as you pointed out, the greater good here is to see that Anderson is not in a position to harm others in the future. i can tell you that we will make every effort to have you here for testimony and then returned as quickly as possible to minimize any inconvenienceto you. (8 CT 1683.) Pasquale testified that he never received thatletter. Accordingly, he was asked no further questions about the letter, and the prosecutordid not seek to havetheletter admitted into evidence. (24 RT 4165, 4250, 4333.) Instead, in response to the prosecutor’s questions, Pasqualetestified that he did not receive any benefits for appearing in court - andtestifying, (24 RT 4165.) | | After the guilty verdicts in this case, Anderson filed a motion for a newtrial on the ground, among others, that theprosecutor’s letter to Pasquale was given to the jury along with the othertrial exhibits, even . though the letter had not been admitted into evidence. (8 CT. 1663-1672, 1683.) In the motion, Anderson focused on the sentence in the letter that reads: “But, as you pointed out, the greatergood hereis to see that _ Andersonis notin a position to harm othersin the future.” Anderson argued that this “inflammatory” language was“clearly very prejudicial to Mr. Anderson and substantially likely to have resulted in juror bias against him.” (8 CT 1671-1672.) | | Atthe hearing on the motion,thetrial court said it appeared theletter had indeed been placedin the jury room inadvertently during deliberation. 154 (38 RT 5734; 9 CT 1937.) However, the trial court denied the motion for newtrial. The trial stated there was no evidence that any juror actually read the letter, but assumed for purposes of the motion that they did. (38 RT 5734.) The court foundthat the letter was not inherently prejudicial, and ' that, underthe totality of the circumstancesin the case, the letter was not substantially likely to cause a juror to be actually biased against Anderson. - (38 RT 5733-5735.) In support of these conclusions,the trial court relied in part on the fact that the idea that Pasquale should testify against Anderson to prevent him from harming others in the future was first raised in one of Pasquale’s letters to the prosecutor, and that letter was admitted into evidence and properly given to the jury during deliberation. (38 RT 5733- 5734.) The court further cited the fact that the prosecutor’s letter, which was a response to Pasquale’s letter, did not read as an effort “to blast Mr. Anderson as a dangerous man,” but rather “was simply an effort, kind of a subtle effort to [encourage] Mr. Pasquale to come out and cooperate, even though he wasn’t going tostrike a bargain.” (38 RT 5734.) | _ B. Standard of Review When a reviewing the denial of a new trial motion based on alleged _ Juror misconduct, an appellate court must accept thetrial court’s credibility determinations and findings on questionsofhistorical fact if supported by substantial evidence. (People v. Nesler (1997) 16 Cal.4th 561, 582 (lead opn. of George, C.J.).) However, whether prejudice arose from juror misconduct is a mixed question of law and fact subject to an appellate court’s independent determination. (/bid.) C. The Inadvertent Placement in the Jury Room ofa Document Not Admitted in Evidence Did Not Amount to Juror Misconduct Andersontreats this issue as one ofjuror misconduct, and argues that the trial court wrongly concluded that the prosecution failed to rebut the 155. presumption ofprejudice that normally arises therefrom. (AOB 174-178; see People v. Nesler, supra, 16 Cal.4th at p. 578 [“Juror misconduct, such as the receipt of information about a party or the case that was notpart of the evidencereceivedattrial, leads to a presumption that the defendant was prejudiced thereby and may establish juror bias.”].) Respondent disagrees that the inadvertent placement ofthe letter in the jury room falls within the rubric ofjuror misconduct; instead, the error is akin to evidentiary error. Anderson cites People v. Andrews (1983) 149 Cal.App.3d 358,for the _ proposition that it constitutes jury misconduct when exhibits not admitted in evidence are mistakenly sent to the jury room. (AOB 175.) In Andrews, exhibits not admitted in evidence were sent mistakenly to the jury room, including a newspaperarticle that indicated the defendant was facing felony charges in another county. The mistake cameto the court’s attention when the jury asked the court to identify the pending charges in the other county. Becausethe pending charges had not been mentioned during the trial, the question indicated thatat least one juror had readthe article. Thetrial court admonished the jurors to disregard the article and not to consider its contents in their deliberation. (Andrews, at pp. 362-363.) Citing People v. _ Kitt (1978) 83 Cal.-App.3d 834, the Andrewscourt stated that, “[a]though the jury’s obtaining ofknowledge ofthe newspaperarticles was not | purposeful, that the article in fact were read or discussed by jurors falls within the category ofjuror misconduct, albeit unintentional. (Andrews,at p. 363.) © | | In Kitt, four photographs that were not admitted in evidence were inadvertently sent into the jury room, but were removed from the room after about five minutes oncethe error was noticed. Thetrial courtstated for the record that the jury had observedall or some ofthe four photographs. (People v. Kitt, supra, 83 Cal.App.3d at p. 849.) Without explanation or citation to authority, the court of appeal stated that, “[ejven 156 thoughthe jury’s observation of these photographs was notintentional, the fact that the photographs were actually observed by jurors falls under the category ofjuror misconduct.” (/d.at p. 850.) Andrewsand Kitt are no longer good authority on this issue. In People v. Cooper (1991) 53 Cal.3d 771, this Court was faced with a similar circumstance, In that capital case, a reporter’s transcript of a hearing from a prior prosecution of the defendant was “‘inadvertently’ admitted into evidenceat the defense’s request” and wassentto the jury room.(Jd. at p. | 834.) The jurors discussed the transcript and asked the court a question aboutit. The court told the jury that the transcript was “received into evidence inadvertently and through mistake,” and instructed the jury not to considerit. ([bid.) On automatic appeal, this Court rejected the defendant’s assertion that the circumstances implicated jury misconduct, which would give rise to a presumption ofprejudice that may be rebutted by proofthat no prejudice actually resulted. (d. at p. 835.) The Court explained that the cases establishing the presumption ofprejudice involve actual misconduct, ~ or “true jury misconduct,” which properly give rise to such a presumption: A juroris not allowed to say: ‘I acknowledge to grave misconduct. I received evidence without the presence ofthe court, but those matters hadno influence upon my mind when casting my vote inthe jury-room.” Thelaw, in its wisdom, does not allow a juror to purge himself in that way.” [Citation.] When a person violates his oath as a juror, doubt is cast on that person’s ability to otherwise perform his duties. [Citation.] The presumption ofprejudice is appropriate in thosesituations. (dd. at pp. 835-836.) The Court distinguished true jury misconduct cases from those in which the jurors did not act in violation of their oath. “When,asin this case, a jury innocently considers evidence it was inadvertently given, there is no misconduct.” (/d. at p. 836.) Instead, the circumstancesare akin to error regarding the admission of evidence, whichis reversible only ifit 157 resulted in a miscarriage ofjustice under People v. Watson, supra, 46 Cal.2d at p. 836. (Cooper, at p. 836.) This Court expressly disapproved of contrary language in Kitt. bid.) _ Here,like in Cooper, an exhibit was mistakenly sent by the court.to the jury room. Unlike in Cooper, there was no evidencein this case that any juror actually read the letter. (38 RT 5734.) But evenifthey had, it would have been innocent behaviorontheir part and would not have constituted misconductthat gives rise to a presumption ofprejudice. (People v. Cooper, supra, 53 Cal.3d at pp. 835-836.) The issue becomes, then, whetherthe jury’s possession ofthe letter in the jury room resulted in a miscarriage ofjustice. D. The Inadvertent Placement in the Jury Room ofa Document Not Admitted in Evidence Did Not Result in a Miscarriage of Justice A miscarriage ofjustice will be found only if, after an examination of - the whoie record, the court determinesit is reasonably probable that a result more favorable to the defendant would have been reached in the absence of the error. (People v. Watson, supra, 46 Cal.2d at p. 836.) The record militates against such a findingin this case. Asthe trial court pointed out, the opinion ofPasquale that he should | _comeout to testify because Anderson should notbe allowed to harm | anyone else was already properly before the jury inthe form.ofPasquale’s letter, which was offered into evidence by the defense. (38 RT 5734.) And the clear import ofthe letter was to encourage Pasquale to cooperate in testifying at the trial, not, in the words ofthe trial court, “to blast Mr. Andersonas a dangerous man.” (/bid.) In addition, as discussed at various points in previous arguments, the case against Anderson wasstrong. To summarize,Peretti and Handshoe identified Anderson as a principal in the attempted robbery and murder, 158 Witnesses saw a Bronco similar to Anderson’s leaving the scene ofthe crime, Anderson made inculpatory statements to Northcutt, and he fled the state ten days after the crime. E. Any Presumption of Prejudice Was Rebutted Even if this issue is treated as one ofjuror misconduct, the presumption ofprejudice was rebutted because, for the same reasons discussed above,there is no substantiallikelihood that any juror was impermissibly influenced against Anderson based on the prosecutor’sletter to Pasquale. (See People v. Nesler, supra, 16 Cal.4th at p. 578 [“When juror misconduct involvesthe receipt of information about a party or the case from extraneous sources, the verdict will be set aside only if there appears a substantial likelihood ofjurorbias.”].) XIX. RESPONDENT DOES NOT OBJECT TO ANDERSON’S REQUEST FOR THIS COURT TO REVIEW THE SEALED RECORD RELATING TO THE DENIAL OF HIS MOTION FOR DISCOVERY OF PEACE OFFICER PERSONNEL RECORDS Andersonjoined in a motion by codefendant Huhn seeking discovery of certain personnel records for District Attorney Investigator Steven Baker. (5 CT 1073-1074; 5 RT 786-796; see generally Pitchess v. Superior - Court (1974) 11 Cal.3d 531; Pen. Code, § 832.7; Evid. Code, § 1043 et seq.) In particular, the motion sought discovery ofpast complaints against investigator Bakerrelating to dishonesty, excessive force, unnecessary violence, under pressure of witnesses, and other misconduct. (5 RT 788.) Based on the motion and supporting declarations, the trial court found good cause to conduct an in camera review of investigator Baker’s personnel | records to determine if there were past citizen complaints regarding dishonesty, undue pressure of witnesses, or fabrication of reports. (5 RT | 788-789.) The court conducted an in camera review ofthe records, and | denied the request for discovery. (5 RT 790,596.) 159 Anderson asks this Court to independently review the sealed record relating to the Pitchess motion to determine whetherthetrial court erred when it decided not to order discovery of any ofthe personnelrecords. (AOB 178-179.) Respondent has no objection to Anderson’s request, A ‘trial court’s decision notto order the release ofpersonnelrecordsis reviewedfor abuseofdiscretion. (People v. Mooc (2001) 26 Cal.4th 1216, 1228.) And evenifa trial court is found to haveabusedits discretion by refusing to order discovery, a defendantis not entitled to relief on appeal unless he can demonstrate a reasonable probability ofa different outcome had the evidence been disclosed. (People v. Gaines (2009) 46 Cal.4th 172, 181-182.) XX. THE VALIDITY OF THE PENALTY VERDICT IS NOT UNDERMINED BY ANDERSON’S TESTIMONYIN FAVOR OF THE DEATH PENALTY Anderson contendsthe penalty verdict should be reversed becausethe trial court allowed him totestify in favor ofreceiving the death penalty, thereby resulting in an unreliable verdict. (AOB 180-194.) Anderson acknowledges that decisions of this Court foreclose relief on this claim, but he requests that those decisions be reconsidered, (AOB 183.) This Court should decline that request. A defendant has a fundamentalrightto testify on his own behalf, even _ _- against the advice of counsel. (People v. Guzman 45 Cal.3d 915, 962; see Rocky. Arkansas (1987) 483 ULS. 44, 49-53 [97 L.Ed.2d 37, 107 S.Ct. 2704],) This right extends to the penalty phaseofa capital case, and includes the right to indicate a preference for the death penalty. (People v. Nakahara (2003) 30 Cal.4th 705, 716-717, 719; see People v. Webb (1993) 6 Cal.4th 494, 534-535.) Moreover, this court has consistentlyrejected claims that a defendant’s testimony in favorof receivingthe death penalty rendered the jury’s death verdict unreliable. (See People v. Mai (2013) 57 160 Cal.4th 986, 1056; People v. Nakahara, 30 Cal.4th at p. 719; People v. Webb, 6 Cal.4th at pp. 534-535; People v. Guzman, 45 Cal.3d at pp. 961- 963.) _ Anderson’s request to reconsider these authorities should be rejected. Anderson contends a defendant’s testimony that he prefers the death penaltyis irrelevant to the jury’s penalty decision. (AOB 184-185.) Itmay or may not be. In People v. Danielson (1992) 3 Cal.4th 691, at page 715, this Court stated: “A defendant’s opinion regarding the appropriate penalty the jury should impose usually would beirrelevantto the jury’s penalty decision.” However, this Court found under the circumstancesofthat case that the defendant’s testimony, “[i]f I were one ofthe 12 jurors, Iwould ‘vote for death,” elicited by the prosecutor on cross-examination, was relevant to matters raised by the defendant in his direct examination. (/bid.; see also People v. Whitt (1990) 51 Cal.3d 620, 646-648 [defendant’s responseto defense questions asking if he wantedto live or deserved to live -were deemedpotentially relevant mitigating evidence].) But relevancy does not control the issue, because a defendant’s fundamentalrightto testify demands someflexibility in the application of evidentiary rules:“a defendant’s absolute rightto testify cannot be foreclosed or censored based on content.” (People v.. Webb, 6 Cal.4th at p. 535; see also Peoplev. . Danielson, 3 Cal.4th at p. 715 [suggesting that a defendant’s voluntary testimony that he prefers the death penalty would foreclose a relevancy . challenge on a “rightto testify” basis].) Therefore, Anderson’s request to reconsiderprior decisions based onthe alleged irrelevancy ofhis testimony is unpersuasive. Anderson further claims that even if the trial court did not erin failing to preclude or strike his testimony,the trial court neededto at least instruct the jury that his testimony “was not an aggravating factor and therefore could not be used in the weighing process.” (AOB 190.) 161 Respondentdisagrees, Anderson’s testimony wasnot in jeopardy ofbeing . construed as an aggravating factor, and the jury was otherwise properly instructed. Before Andersontestified, his attorneys presented evidence that he did notparticipate in the Brucker murder. (35 RT 5505-5508.) Anderson testified consistently with this defense, telling the jury that he was innocent, there was no evidenceto prove his involvement, and that the guilty verdict was wrong. (35 RT 5622-5623.) Even his statement, “I don’t give a shit. Give methe death penalty. Ifyou believe I’m guilty, kill me,” implies Anderson’sbeliefthat he is innocent. Thus, the overall content of his testimony wasrelevant mitigating evidence, which the jury could properly consider. (See People v. Johnson, supra, 3 Cal.4th at p. 1252 [stating a “defendant may urge his possible innocenceto the jury as a factor in mitigation,” and that a jury mayproperly consider any residual doubt about his guilt].) Nonetheless, Anderson protests that his testimonytelling the jury he ‘did not care and to give him the death penalty “surely encouragedthe jury to short circuit the process and decide ona penalty of death.” (AOB 190.) This is speculation. As explained above, the thrust ofAnderson’s testimony wasthat he was innocent. His statement that he did notcare aboutgetting . the death penalty was more a manifestation of frustration or defiance than a genuine plea for that outcome.In any event, this Court hasstated that a court has no obligation to instruct the jury onhow to view the evidence. (See People v. Brown (2004) 33 Cal.4th 382, 402 [“Since there is no requirementthat the court identify which factors are aggravating and which are mitigating [citation], neithermustit restrict the jurors’ consideration of theevidence in this regard.”].) 162 XXI. THE TRIAL COURT PROPERLY REFUSED TO INSTRUCT THE JURY WITHA REVISED VERSION OF CALJIC No.8.85 During the penalty phase, using the standardized language ofCALJIC No.8.85, the trial court instructed the jury as follows: “In determining whichpenalty it is to be imposed,you shall considerall ofthe evidence which has been received during anypart ofthetrial of this case. Youshall consider, take into account, and be guided by the followingfactors, if © applicable.” (35RT 5515-5516; 8 CT 1642-1643; see also 36 RT 5718- 5719.) The court then listed the potential aggravating and mitigating circumstancesset forth in section 190.3, subdivisions (a) through (k). The trial court had rejected Anderson’s request to give an alternative instruction to CALJIC No. 8.85. (35 RT 5495.) Anderson contendsthis waserror. (AOB 195-198.) This contention should be rejected because this Court has repeatedly held that the standard language of CALJIC No.8.85 is both correct and adequate. Anderson has not cited anywhere in the record that documents the languageofhis proposedinstruction, and respondent’s review ofthe record failed to find it. Trial counsel described the proposed instruction as “one of two options currently being considered by the judicial council as a replacement for 8.85,” but there has been no change to the language of CALJIC No. 8.85 between the time of Anderson’strial and the writing of this brief. (Compare 8 CT 1642-1643 [language of instruction given at trial] with CALJIC (Fall 2014 Edition) No. 8.85.) The contents of the proposed modifications are therefore unknowablebased on the appellate record. The record does reveal, however, that thetrial court firmly believed _ that recent statements ofthis Court providedsolid groundto deny _ Anderson’s requested modifications. The court stated: I have reviewedthe revised CALJIC 8.85 — Ill call it a- revised version ofthat, that is apparently being circulated for comment. In reviewing that and the current 8.85, and relying 163 primarily on somefairly recent California Supreme Court analysis, I’m declining to give the revised version. In People versus Turner, 34 Cal.4th at 406, and People versus Brown, 33 Cal.4th 382, the Supreme Court stated in a matter-of-fact fashion that they have consistently rejected the argument that what’s mitigating and aggravating beidentified, and as recently as Novemberoflast year indicated, “we find no persuasive reason to reexamine 8.85 andthe listing of factors - that can be considered in setting penalty.” So the request to give that revision is denied. (35 RT 5495-5496.) Anderson did not protest that Turner and Brown were not on point, or otherwise indicate that the court’s reasoning was not fully responsiveto the issues raised by the proposed instruction. Therefore, on this record, Anderson cannotestablish that the court erred by refusing to modify CALIJIC No.8.85. | | . Indeed, this Court has repeatedly rejected claims that CALJIC No. 8.85 requires modification, and has declared that “CALJIC No.8.85 is both correct and adequate.” (People v. Valencia (2008) 43 Cal.4th 268, 309;see, e.g., People v. Sattiewhite (2014) 59 Cal.4th 446, 490 [“Thetrial court is not requiredto identify which factors are aggravating and which are mitigating or to ‘restrict the jurors’ consideration of the evidencein this regard.’”]; People v. McKinzie (2012) 54 Cal.4th 1302, 1362 [trial court properly rejected defense instruction which would have identified certain factors enumerated in CALJIC No.8.85 as either aggravating or mitigating because the “nature of the variousfactors is readily apparent without such labels”]; People v. Cruz (2008) 44 Cal.4th 636, 681-682 [finding “unmeritorious” the claim that penalty phaseinstructions unconstitutionally failed to identity which circumstances were aggravating and which were _ mitigating]; People v. Lucero (2000) 23 Cal.4th 692, 728 [rejecting claim 164 that CALJIC No. 8.85 is unconstitutional becauseit fails to “limit the jury to consideration of only the listed factors in aggravation”]; People v. Musselwhite (1998) 17 Cal.4th 1218, 1266-1268 [rejecting claim that unmodified version of CALJIC No.8.85 resulted in an unconstitutional penalty verdict].) Therefore, the trial court did noterr in refusing Anderson’s request to modify that instruction. XXII. THE TRIAL COURT DID NOT ERR IN REFUSING TO INSTRUCT THE JURY THAT THERE NEED NOT BE ANY MITIGATING CIRCUMSTANCESTO JUSTIFY A DECISION THAT THE PENALTY BE LIFE WITHOUT PAROLE Anderson requested an instruction to inform the jury “that there need . not be any mitigating circumstance in order to justify a decision that the penalty be life without possibility ofparole.” (35 RT 5628.) Defense counsel argued such an instruction was important because Anderson had prevented the defense from presenting mitigating evidence. (/bid.) Thetrial court denied the request. Anderson claimsthis waserror. (AOB 198-202.) Respondentdisagrees. | | = _ This Court has repeatedly denied claimsthat a trial court erred by | failing to give an instruction like the one at issuehere, explaining that under the language ofCALJIC No.8.88, “[n]o reasonable juror would assume he or she was required to impose death despite insubstantial aggravating circumstances, merely because no mitigating circumstances were found to exist.” (People v. Johnson (1993) 6 Cal.4th 1, 52; see People v. McKinzie, supra, 54 Cal.4th 1302, 1363-1364; People v. Perry (2006) 38 Cal.4th 302, 320; People v. Seaton (2001) 26 Cal.4th 598, 688; People v. Ray, supra, 13 Cal.4th at pp. 355-356; see also People v. Duncan (1991) 53 Cal.4th 955, 979 [finding the languageofthe instruction does not create a presumption in favor or death, and reasonably conveys to a jury that it “may decide, even in the absence of mitigating evidence, that the aggravating evidenceis 165 not comparatively substantial enough to warrant death.”].) Anderson presents no persuasive argument to reconsider these decisions. XXII. THE TRIAL Court DpNor ERR IN REFUSING TO INSTRUCT ON LINGERING DOUBT Anderson contends thetrial court erred whenit refused his request to give an instructiontelling the jury that it could consider “lingering doubt” regarding his guilt in determining the appropriate penalty. (AOB 202-205.) Relief on this claim is foreclosed by prior decisions ofthis Court, which have held that trial courts are under no obligation to instruct a jury on lingering doubt, even on request. (See People v. Jones (2012) 54 Cal.4th 1, 84; People v. Gray (2005) 37 Cal.4th 168, 231; People v. Staten (2000) 24 Cal.4th 434, 464; People v. Hines (1997) 15 Cai.4th 997, 1068.) XXIV. CALIFORNIA’S DEATH PENALTY STATUTEIS CONSISTENT WITH CONSTITUTIONAL PRINCIPLES Andersonraises several generic claims challenging the constitutionality of California’s death penalty statute. (AOB 205-225.) He acknowledges this Court has rejected the sameor similar claimsin thepast, and therefore presents only “abbreviated” arguments and asks this Court to _ reconsiderits prior decisions. (AOB 205; see People v. Schmeck (2005) 37 Cal.4th 240, 303-304 [advising that an extended argument in support of such claims is unnecessary to secure a ruling on the merits].) Anderson offers no persuasive argumentto revisit any ofthe issues, and they should all be rejected consistent with this Court’s previousrulings. Anderson claims that California’s death penalty schemeis invalid for the following reasons:it is impermissibly broad becauseit does not meaningfully narrow the pool of murdererseligible for the death penalty -(AOB 206-207); it allows arbitrary and capricious imposition ofthe death penalty (AOB 208-210); it fails to require written findings or unanimity as to aggravating factors, proofofall aggravating factors beyond a reasonable © 166 doubt, findings that aggravation outweighs mitigation beyond a reasonable doubt, or findings that death is the appropriate penalty beyond a reasonable doubt (AOB 210-216); it does not require inter-case proportionality review (AOB 221-222); and it permits a jury to consider unadjudicated criminal activity in determining the appropriate penalty (AOB 222-223). Claims that are identical or similar to each of these claims have been repeatedly rejected by this Court. (People v. Carrasco (2014) 59 Cal.4th 924, 970- 971.) , Anderson also claims here that the failure to instruct the jury that statutory mitigating factors are relevant solely as potential mitigating factors precludeda fair, reliable, and evenhanded administration of the death penalty. (AOB 223-224.) This claim, too, has been repeatedly rejected. (See People v. McKinnon (2011) 52 Cal.4th 610, 692; People v. Page (2008) 44 Cal.4th 1, 61; People v. Farnum (2002)28 Cal.4th 107, 191.) XXV. CALIFORNIA’S SENTENCING SCHEME DOES NOT VIOLATE EQUAL PROTECTION PRINCIPLES Anderson contendsthat California’s sentencing scheme violates his right to equal protection because it denies capital defendants procedural safeguards that are afforded to non-capital defendants. (AOB 225-227.) This claim has been repeatedly denied, and Anderson offers no persuasive reason to reconsiderthe issue. (See People v. Carrasco, supra, 59 Cal.4th at p. 971.) | XXXVI. CALIFORNIA’S DEATH PENALTY LAW DOES NOT VIOLATE INTERNATIONAL NORMS OF HUMANITY AND DECENCY Anderson contends that California’s death penalty laws violate international norms ofhumanity and decency. (AOB227-229.) This argument, too, has been repeatedly rejected and Andersonfails to present a 167 persuasive reason to reconsider the issue. (People v. Carrasco, supra, 59 -Cal.4th at p. 971.) os XXVIL THE ONE-YEAR ENHANCEMENT FORTHE PRISON PRIOR ' ALLEGATION SHOULD BE STRICKEN BECAUSEIr Is BASED ON THE SAME PRIOR OFFENSES THAT SERVE AS THEBASES FORTHE SERIOUS FELONY PRIOR ALLEGATIONS, FOR WHICH FIVE-YEAR ENHANCEMENTS WERE IMPOSED Anderson contendsthetrial court erroneously imposed a one-year sentence enhancementforthe true finding on the prison priorallegation _ under section 667.5, subdivision (b), because that allegation was based on the same twoprior convictions that underlie the serious felony prior allegations under section 667, subdivision (a), for which the court imposed five-year sentence enhancements. (AOB 229-230.) Respondentagrees, (See | People v. Jones (1993)5 Cal.4th 1142, 1153 {holding that “when multiple . statutory enhancementprovisionsare available for the sameprior offense, one of whichis a section 667(a) enhancement, the greatest enhancement, but only that one, will apply.”].) | . XXVIII. THE CUMULATIVE EFFECT OF THE ALLEGED GUILT AND PENALTY PHASE ERRORS DO NOT REQUIRE REVERSAL OF THE CONVICTIONS OR DEATH JUDGMENT Anderson contends that the cumulative effect of the alleged errors _ requires reversal of his convictions and death judgment. (AOB 230-234.) However, noerror occurred. Alternatively, to the extenterror did occur, Andersonhasfailed to demonstrate prejudice. Therefore, reversal of Anderson’s convictions and death sentence is not warranted. Whereno single error warrants reversal, the cumulative effect of all theerrors may, in a particular case, require reversal in accordance with the due process guarantee. (See Chambers v. Mississippi (1973) 410 U.S. 284, 298 [93 S.Ct. 1038, 35 L.Ed.2d 297][finding that the combinedeffect ofall the individual errors denied the defendanthis right to due process and fair 168 ~ trial]; People v. Hill, supra, 17 Cal.4th at p. 844 [“a series oftrial errors, though independently harmless, may in somecircumstancesrise by _ accretion to the level of reversible and prejudicial error”].) However, even a capital defendant is entitled only to a fair trial, not a perfect one. (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) Where, as in the present case, few or noerrors have occurred, and where any errors found to have occurred were harmless, the cumulative effect does notresult in the substantial prejudice required toreverse a defendant’s conviction.(E.g., - People v. Price, supra, | Cal.Ath at p. 465.) CONCLUSION Basedon the foregoing, respondent respectfully requests that the judgment be affirmed. Dated: March 19, 2015 | Respectfully submitted, KAMALA D. HARRIS Attorney General of California JULIE L. GARLAND — Senior Assistant Attorney General HOLLY D. WILKENS Supervising Deputy Attorney General THEODORE M. CROPLEY Deputy Attorney General MuhaT MICHAELT. MURPHY . Deputy Attorney General Attorneysfor PlaintiffandRespondent $D2005800233 71043442.doc 169 CERTIFICATE OF COMPLIANCE _ I certify that the attached Respondent’s Briefuses a 13 point Times New Roman font and contains 53,385 words. Dated: March19, 2015 - KAMALA D. HARRIS — Attorney General of California Wrihedh ie MICHAEL T. MuRPHY Deputy Attorney General Attorneysfor Plaintiff and Respondent DECLARATION OF SERVICEBYU.S. MAIL Case Name: People v. Eric SteveAnderson No.: S138474 I declare: _ Tam employedin the Office ofthe 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 formailing with the United States Postal Service. In accordance with that practice, correspondence placedin the internal mail collection system at the Office ofthe 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 March 24, 2015, I served the attached Respondent’s Brief by placing a true copy thereof enclosed in a sealed envelope in the internal mail collection system at the Office of the Attorney General at 110 West A Street, Suite 1100, P.O. Box 85266, San Diego, CA 92186-5266, addressed as follows: . Joanna McKim Court Executive Officer Post Office Box 19493. _ Honorable Lantz Lewis, Judge San Diego, CA 92159 , a San Diego County Superior Court ae — 220 West Broadway California Appellate Project. San Diego, CA 92101 - 101 Second Street, Suite 600 . San Francisco, CA 94105-3672 Governor’s Office, Legal Affairs Secretary State Capitol, First Floor — Sacramento, CA .95814 Bonnie Dumanis District Attorney 330 West Broadway Suite 1300 SanDiego, CA 92101 I declare under penalty of perjury underthe laws of the State of California the foregoingis true’ and correct and that this declaration was executed on Match 24, 2015, at San Diego, California. Kimberly Wickenhagen _ . CichiskoVitekacp..J 02005800233 . 71052.763.doc