Filed 7/12/18




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                           S057242
           v.                        )
                                     )
CHRISTOPHER ALAN SPENCER,            )
                                     )                     Santa Clara County
           Defendant and Appellant.  )                    Super. Ct. No. 155731
____________________________________ )


        A jury convicted defendant Christopher Spencer of murdering James
Madden. (Pen. Code § 187; all further undesignated references are to this code.)
It also found true the special circumstance allegations that Spencer murdered
Madden while robbing him and burglarizing his place of business. (§ 190.2, subd.
(a)(17).) The jury returned a verdict of death, prompting this automatic appeal.
(Cal. Const., art. VI, § 11; Pen. Code § 1239, subd. (b).) We affirm the judgment
in its entirety.
                                   I. FACTS
        On January 24, 1991, four days before Madden was fatally stabbed, a group
of men robbed Ben Graber outside of a liquor store in San Jose. One of the men
shocked Graber with a stun gun. The use of this weapon, along with tips from an
informant, eventually led the police to Daniel Silveria, John Travis, Matthew
Jennings, Troy Rackley, and defendant Spencer. By the time police located and
arrested the men, they had murdered Madden — a crime for which three of the

                                         1
four adult defendants, Silveria, Travis, and Spencer, were convicted and sentenced
to death.1

A. Robbery of Graber at the Gavilan Bottle Shop
       On the evening of January 24, 1991, a group of men stopped Ben Graber as
he was leaving his job at the Gavilan Bottle Shop located in San Jose. One of the
men shocked Graber on his hip with a stun gun. They robbed Graber and took
cash from the store.

    1. The Stun Gun Robbery Investigation
       John Boyles, a detective with the San Jose Police Department, investigated
the Gavilan Bottle Shop robbery and another robbery at a Quik Stop convenience
store that also involved the use of a stun gun. During his investigation, Detective
Boyles learned that Troy Rackley and Matthew Jennings had been identified as
suspects in the robberies. Detective Boyles disseminated this information
generally via a broadcast “over all our channels within the City of San Jose” and
specifically to Officer Brian Hyland, an officer assisting Detective Boyles with the
investigation.
       At approximately 5:00 p.m. on January 28, 1991, Detective Boyles received
a phone call from a female informant. The informant named “Danny, John, Matt,
Chris and Troy” as the perpetrators of the stun gun robberies. Later that night,
Detective Boyles had another phone conversation with a woman identifying
herself as “Cynthia.” Based on her voice and the information she provided,
Detective Boyles identified Cynthia as the female informant with whom he had




1      Rackley was a minor at the time of the murder. He pleaded guilty and
received a sentence of 25 years to life. Jennings, who did not stab Madden, was
sentenced to life without the possibility of parole. (Jennings v. Runnels (9th Cir.
2012) 493 Fed. Appx. 903.)
                                          2
spoken earlier. Cynthia provided the detective with additional information about
the robbers.
       Officer Hyland tracked down the suspects’ addresses. In speaking to
various family members of the group, Officer Hyland corroborated specific
aspects of the tip provided by Cynthia. Because Officer Hyland had learned from
the message of the informant that the group was planning to commit another
robbery, he told everyone with whom he spoke to call 911 if they saw any of the
suspects.

   2. The Arrest
       At approximately 6:45 p.m. on January 29, 1991, an unidentified male
called the San Jose police to alert them that the stun gun robbery suspects were at
the Oakridge Mall. Officers arrived at the mall and, at the direction of Officer
Hyland, stopped two vehicles matching descriptions given by the caller — a
Datsun Z and a Honda Civic. Silveria was driving the Honda, and Travis was
driving the Datsun with Rackley as a passenger. The police arrested all three
individuals. A search of the vehicles yielded over $2,500 in cash from the Datsun,
$694.40 from the Honda, and a stun gun and a roll of duct tape in the Honda’s
hatchback.
       Officer Hyland soon arrived at the scene of the Oakridge Mall arrests. He
spoke with Silveria, who gave Officer Hyland a description of the cars Jennings
and Spencer were driving and told the officer that the two were planning to leave
town. Officer Hyland had Silveria page Jennings, who called back. Jennings said
that he and Spencer were at a friend’s house. Because Silveria knew the location
but not the address of the friend’s place, the police brought Silveria along to direct
them. Silveria brought the officers to Alice Gutierrez, Christopher Wagner, and




                                          3
John Durbin’s shared apartment and pointed out Spencer’s newly acquired 1979
Triumph Spitfire in the parking lot.
       Officer Hyland went up the stairs and saw Durbin in the apartment. Durbin
said that Jennings and Spencer had gone to the store but would return. When the
police searched the apartment, they discovered two packages containing $282 and
$721 in cash.
       Officer Larry Esquivel waited downstairs for Jennings and Spencer to
return. When a red Chevrolet pickup truck pulled up, matching the description of
the vehicle that Officer Esquivel had been expecting, police officers arrested its
occupants, who turned out to be Jennings and Spencer.

B. Murder of Madden at Leewards
       Madden worked as a manager at a Leewards craft store in Santa Clara. On
the night before the robbery suspects were arrested, Madden was the last to leave
work. At 10:53 p.m., an alarm went off at Leewards. A dispatcher from the alarm
company spoke to someone at the store, but did not summon the police as the
person on the other end gave the correct passcode. When Leewards employees
arrived at the store the next morning, they discovered Madden’s body.

       1. The Murder Investigation
       Detective Sergeant Ted Keech of the Santa Clara Police Department and his
partner responded to the crime scene at Leewards at approximately 8:15 a.m. on
January 29, 1991. Sergeant Keech observed Madden’s body lying on the floor
next to a tipped-over chair. Madden’s hands and feet were bound with duct tape,
and he had duct tape wrapped around his face. His body showed numerous
puncture wounds, later counted to be 32 in total. In the office where Madden’s
body was found, Sergeant Keech observed empty register trays and ripped-open
plastic bags on top of an empty safe.


                                          4
       After reviewing the scene and interviewing the assistant manager, Sergeant
Keech concluded that whoever committed the robbery must have had some
familiarity with Leewards’s procedures. He then looked through personnel files
and noted that Silveria and Travis were recently terminated from the store.
Sometime thereafter, Sergeant Keech learned that Silveria and Travis, along with
the other suspects, were in the custody of the San Jose Police Department. He
made his way to the station and arrived shortly after midnight.

   2. The Interrogation
       About an hour before Sergeant Keech arrived, or at around 11:30 p.m. on
January 29, Detective George De La Rocha of the San Jose Police Department
began questioning Spencer. Detective De La Rocha advised Spencer of his
Miranda rights, which Spencer waived. As Detective De La Rocha was unaware
of the Leewards murder when he conducted the interview, his questions centered
on the Gavilan Bottle Shop incident. Spencer admitted to driving the getaway car
during this robbery and getting paid $70 for his participation. He also said that on
the night of January 28 — when Madden was killed — he was with Silveria,
Travis, Jennings, and Rackley.
       At about 4:00 a.m. the next morning, or less than five hours after waiving
his Miranda rights, Spencer began talking to Sergeant Keech and his partner, the
officers investigating the Leewards break-in. Sergeant Keech took charge of the
interview and interrogated Spencer about Madden’s murder. While Spencer
initially denied any involvement, he eventually confessed and gave a detailed
account of what had happened two nights earlier.
       According to Spencer, the plan to rob Leewards was Silveria’s idea, and it
was Silveria and Travis who called the shots at the scene. As they were planning
the robbery, Silveria and Travis mentioned the possibility of killing Madden


                                         5
because he could identify them as former employees. When Silveria, Travis,
Jennings, Rackley, and Spencer arrived at the Leewards parking lot, they saw
Madden’s vehicle parked in the lot. Silveria told Spencer to slash Madden’s tires,
which Spencer did. Spencer, along with Silveria and Travis, accosted Madden as
he exited Leewards. While Jennings and Rackley remained outside as lookouts,
Silveria, Travis, and Spencer went with Madden back to the store. The three took
Madden to his office and bound him with duct tape. When the alarm company
called, Spencer took the tape off Madden’s face so he could give the passcode to
the dispatcher.
       Spencer stated that as they were getting ready to leave, Travis told Silveria
and Spencer to kill Madden. Spencer stabbed Madden three or four times in the
chest — admitting that he was the first to stab the victim — while Silveria
shocked him with the stun gun. Silveria and Travis subsequently also stabbed
Madden. All five perpetrators then left in Spencer’s Dodge Charger.
       The men obtained between $9,000 and $10,000 from the robbery. Spencer
used his share of the money to buy a Spitfire (trading in his Charger) and new
clothes. He also said that he gave the shoes that he was wearing during the
robbery to a Foot Locker store in Oakridge Mall to throw away.
       The interrogation ended at approximately 5:30 a.m. on January 30, about an
hour and a half after it began.

C. Prosecution of Spencer
       The People charged Spencer with the murder and robbery of Madden, the
burglary of Leewards, and the robbery of Graber at the Gavilan Bottle Shop. The
indictment also alleged several special circumstances, although the trial court later
granted the prosecutor’s motion to strike the lying-in-wait and torture allegations.
Spencer’s trial, severed from his codefendants’, commenced on June 10, 1996.


                                          6
    1. Guilt Phase
       During the guilt phase of the trial proceeding, the prosecution introduced
Spencer’s confession, as well as corroborating evidence from various sources. For
example, the prosecution elicited the testimonies of Gutierrez and Wagner, two of
the roommates at the apartment complex where Spencer was arrested. Gutierrez
testified that two weeks before the murder, she had seen Jennings waving around a
stun gun with the other members of the group (Silveria, Travis, and Spencer)
present. She further testified that on January 29, 1991 — the day after Madden’s
murder — Jennings and Spencer came to the apartment wearing new clothes and
Spencer had a package of money and a suitcase. Spencer said he wanted to leave
California to go to Kentucky. Wagner corroborated some of Gutierrez’s account
and testified that Spencer asked him to listen to a police scanner Wagner owned
because Spencer thought “the police were looking for him.”2 Likewise, the facts
that Silveria, Travis, Jennings, and Spencer bought cars and made payments in
cash on January 29 were corroborated by the testimonies of salespeople at the car
dealerships.
       The prosecution also introduced into evidence a pair of shoes recovered
from the dumpster at the Oakridge Mall — the mall where Spencer said he left the
shoes he wore during the Leewards robbery. An expert in shoe prints testified that
one of those shoes matched a footprint at the Leewards crime scene. Finally, the
prosecution presented testimony from a Santa Clara County Coroner’s Office
medical examiner. Doctor Parviz Pakdaman testified that Madden suffered 32
stab wounds: 5 to the neck, including 1 that severed his trachea; 24 to the chest,
causing multiple penetrations of his lungs and heart; and 3 to the abdomen, 2 of
which penetrated the liver. Madden also had some abrasions on his thigh,


2       Wagner provided some inconsistent testimony, later saying that Spencer did
not tell him why he wanted him (Wagner) to turn on the scanner.
                                         7
presumably from the stun gun. Doctor Pakdaman opined that the cause of death
was stab wounds to the neck, chest, and abdomen.
       The defense did not present an affirmative case. Instead, it focused on
attacking the prosecution’s case-in-chief, primarily by challenging police
procedures used in the investigation and interrogation.
       On August 21, 1996, the jury returned guilty verdicts on all counts. It also
found true the special circumstances that Spencer committed first degree murder
while engaged in robbery and burglary.

   2. Penalty Phase
       During the penalty phase, the prosecution presented three types of
evidence: testimonies regarding how Madden died; testimonies from witnesses
who observed the immediate response of Madden’s wife and child upon learning
of his death; and victim impact statements from members of Madden’s family.
       The medical examiner, Doctor Pakdaman, gave testimony indicating how
much Madden was likely to have suffered before he died. He opined that Madden
was breathing when his lungs or trachea were penetrated and that he was alive
when he toppled from the chair. Doctor Pakdaman “guesstimated” that Madden
died 15 to 30 minutes after the first wound. During the examiner’s testimony, the
prosecution displayed on a mannequin the shirt Madden had been wearing at the
time of the murder. The shirt was obviously bloodied, and markers had been
attached to it to identify punctures and cuts in the fabric. Sergeant Keech, who
authenticated the item, admitted on cross-examination that additional bloodstains
got on the shirt when Madden’s body was transported to the coroner’s office.
Doctor Pakdaman likewise confirmed that there was a difference between the
amount of blood on Madden’s shirt as observed at the murder scene and when the
body was delivered to the coroner’s office.


                                         8
       Shirley “Sissy” Madden was the victim’s wife. Two of her coworkers
testified about Sissy’s behavior when she arrived at work on the morning of
January 29, 1991. According to Susan Thuringer, Sissy was visibly upset. Sissy
told Thuringer and Kay House, another coworker, that her husband did not come
home the previous night. Thuringer then learned from the police that Madden had
died. She and House broke the news to Sissy. Sissy “reacted like . . . a wounded
animal,” “screamed,” “flail[ed] around,” and had to be “restrained” while her
coworkers tried to comfort her. Thuringer and House, along with police officer
Brian Lane, accompanied Sissy home, where they witnessed Sissy telling her
seven-year-old daughter, Julie, that her father had died. Thuringer recalled Julie
screaming. Thuringer’s account was confirmed by House, who further stated that
Sissy still had a lot of trouble handling her husband’s death. Officer Lane also
testified briefly about his interaction with Sissy.
       Four members of Madden’s family gave victim impact statements. These
included Madden’s wife, his mother, sister, and brother-in-law. The gist of the
testimonies was Madden’s relationship with his family and the impact his death
had on their lives.
       In mitigation, the defense put on testimony from Spencer’s grandmother,
mother, father, sister, half-sister, half-brother, and middle school teacher. The
witnesses testified to Spencer’s difficult upbringing, marred by poverty, a
dysfunctional family, and drug use. They emphasized that Spencer was a
follower, not a leader.
       On September 19, 1996, the jury returned a recommendation of death. The
trial court sentenced Spencer accordingly, and this appeal followed.
                                  II. DISCUSSION
       Spencer raises a number of issues on appeal, most of which focused on
purported errors made by the trial court. These include: erroneous exclusion of a
                                           9
venireman; admission of Spencer’s confession despite the lack of probable cause
to arrest, Miranda advisement, and voluntariness of the confession; admission of
inflammatory evidence, including excessive victim impact statements, unduly
prejudicial physical evidence, and comments by the prosecutor amounting to
misconduct; and erroneous jury instructions given during the penalty phase with
regards to the robbery of Graber at the Gavilan Bottle Shop. Spencer also
complains of this court’s decision not to supplement the appellate record with his
codefendants’ trial transcripts. Finally, Spencer brings the usual challenges
against the constitutionality of California’s death penalty scheme. We consider
these claims in turn below.

A. Exclusion of Prospective Juror

   1. Background
       Spencer contends that the trial court erroneously dismissed prospective
juror C-67 (Juror C-67) and that the error requires the judgment of death to be set
aside. The trial court dismissed Juror C-67 for cause owing to his views on capital
punishment. Indeed, Juror C-67 expressed strong — though not absolute — views
on the death penalty in both the jury questionnaire and during oral examination.
In the questionnaire, Juror C-67 gave the following responses to questions
designed to gauge his attitude on capital punishment:
       “Q50. Do you have any personal, philosophical, moral or religious
       beliefs that would affect in some way your ability or willingness to
       serve as a juror in this case?
       A. I don’t know. Religiously I would find it very difficult to ask for
       death sentence.

       “Q120. What are your general feelings regarding the death penalty?
       A. I have a religious bias against the death penalty.

       “Q121. Which would you say most accurately states your views
       regarding the death penalty?

                                         10
A. [Juror checked the boxes indicating ‘Strongly against’ and
‘Moderately against’ and wrote the word ‘to’ in between the boxes.]

“Q122. What are the reasons you either support or oppose the death
penalty?
A. It is irreversible. I prefer life without parole, even castration, to
death.

“Q132. If a defendant was found guilty of intentional, deliberate
first degree murder and at least one of the ‘special circumstances’
was found to be true, would you always vote for Life Without the
Possibility of Parole, and reject Death, regardless of the evidence
presented at the penalty phase of the trial?
A. [Juror checked the ‘No’ box.]

“Q142. Do you feel the death penalty should never be imposed for
murder?
A. [Juror checked the ‘No’ box.]

“Q140. Under what circumstances, if any, do you believe that the
death penalty is appropriate?
A. Perhaps torture or child victims.

“Q149. Given the fact that you will have two options available to
you, can you see yourself, in the appropriate case, rejecting life in
prison without the possibility of parole and choosing the death
penalty?
A. I don’t know. [Juror also circled the phrase ‘in the appropriate
case.’]

“Q150. In a capital case, the factors in aggravation and mitigation
upon which a penalty decision must rest are set forth in law which
will be given the jury by the judge. Can you set aside any
preconceived notions you may have about the death penalty, and
make any penalty decision in this case based upon the law as it is
given by the judge?
A. No. My true beliefs are not ‘preconceived notions to be set
aside.’

“Q155. Could you set aside your personal feelings, if any, and
follow the law as the court explains it to you?
A. Yes, with the possible exception of the death penalty.


                                   11
       “Q163. Please mention anything which you believe may affect your
       ability to be a juror or which may affect your participation as a juror
       in this trial?
       A. My reluctance about the death penalty.”
       Juror C-67 offered further insight into his views during oral examination.
In person before the trial court, the judge and juror had the following exchange:
       “Q. Do you think you would automatically vote for one of those
       penalties [life without the possibility of parole versus death] simply
       because you might favor it over the other one?
       A. Well, in the questionnaire there were — there was a lot of
       discussion about the death penalty.
       Q. Right.
       A. And I suppose I have a lot of reservations about that, as my
       answers probably indicate.

       “Q. All right. With your reservations about the death penalty in
       mind, do you think in a penalty-phase determination during
       deliberations, do you think you would always vote against the death
       penalty despite any aggravating or negative evidence that may have
       been presented?
       A. I don’t know. I’ve never had to be in that situation before.

       “Q. All right. Let me ask you another assumption type of question.
       . . . Do you think you would always vote for life without parole and
       reject death despite any of this negative evidence that may have been
       presented during the course of trial?
       A. Well, this is obviously the hardest single thing in that whole
       thing for me and I don’t know.

       “Q. All right. Let me ask you this: Assume that . . . in your own
       mind based on the evidence and the law you believe the death
       penalty is appropriate in this case, would you vote for it?
       A. Well, if I believed the death penalty was warranted in the case
       then I would vote for it, but for me to believe that the death penalty
       is warranted is the whole issue.

       “Q. Do you think the death penalty would ever be warranted in any
       kind of case?
       A. Yes.



                                         12
       Q. Do you think that it would be possible for you to vote for the
       death penalty in a given case without going into what that case might
       be?
       A. I can imagine things horrible enough to get me to vote for the
       death penalty, I suppose.”
       The trial judge then conducted a sidebar with the attorneys. The court
ultimately found that Juror C-67 was “substantially impaired and would not be
able to follow his oath as a juror in this case.” The court acknowledged that the
juror “can think of a situation where he could impose the death penalty, and, of
course, we can’t get into what that is.” The judge noted, however, that Juror C-67
“thought a long time” before giving this answer. Immediately before finding Juror
C-67 to be substantially impaired, the judge remarked, “If you go to Question 150,
which is, you know, ‘Can you set aside any preconceived notions that you have
about the death penalty,’ he says, ‘No. My true beliefs are not preconceived
notions to be set aside.’ ” Spencer’s attorney urged that “that 150 answer [] may
be worth further inquiry,” to which the court replied, “I don’t think it is, not based
on what he said.” The court thereafter stated for the record that he found Juror C-
67 to be substantially impaired and excused the juror.

   2. Analysis
       The standard for determining when a prospective juror may be excused for
cause because of his or her views on capital punishment was initially articulated
by the United States Supreme Court. In Wainwright v. Witt (1985) 469 U.S. 412,
424 (Witt), the court held that such a juror may be excused if the juror’s views
would “ ‘prevent or substantially impair the performance of his duties as a juror in
accordance with his instructions and his oath.’ ” In announcing this standard, the
court clarified that — despite language contained in the earlier case of
Witherspoon v. Illinois (1968) 391 U.S. 510, 515, fn. 9 — dismissal of a
prospective juror may be proper even if the juror does not “‘unambiguously” state


                                          13
that he or she “would automatically vote against the imposition of capital
punishment no matter what the trial might reveal.” (Witt, supra, 469 U.S. at p.
424; see also, e.g., Darden v. Wainwright (1986) 477 U.S. 168, 175 [stating that
Witt “modified” the court’s opinion in Witherspoon]; People v. Kaurish (1990) 52
Cal.3d 648, 697 [noting that the high court’s “position on death penalty exclusion
was substantially modified in Wainwright v. Witt”].) The Witt court further
explained that, because “many veniremen simply cannot be asked enough
questions to reach the point where their bias [against the death penalty] has been
made ‘unmistakably clear,’ ” “deference must be paid to the trial court who sees
and hears the juror.” (Witt, supra, 469 U.S. at pp. 424–425, 426.) The high court
has since “reinforced” this rule of deference. (Uttecht v. Brown (2007) 551 U.S. 1,
7 (Brown).) Thus, “[e]ven when ‘[t]he precise wording of the question asked of
[the venireman], and the answer he gave, do not by themselves compel the
conclusion that he could not under any circumstance recommend the death
penalty,’ the need to defer to the trial court remains because so much may turn on
a potential juror’s demeanor.” (Id. at p. 8.)
       California courts apply the same standard announced in Witt and its
progeny in applying the corresponding provisions of the California Constitution.
(E.g. People v. Ghent (1987) 43 Cal.3d 739, 767 (Ghent) [adopting the Witt
standard]; People v. Gray (2005) 37 Cal.4th 168, 192 (Gray) [“We apply the same
[Witt] standard under the state Constitution.”].) Like the United States Supreme
Court, we emphasize the deference owed to the trial judge, stating that “where
equivocal or conflicting responses are elicited regarding a prospective juror’s
ability to impose the death penalty, the trial court’s determination as to his true
state of mind is binding on an appellate court.” (Ghent, supra, 43 Cal.3d at p.
768.) Accordingly, in such situations where the trial court has had an opportunity
to observe the juror’s demeanor, we uphold the court’s decision to excuse the juror
                                          14
so long as it is supported by substantial evidence. (People v. Martinez (2009) 47
Cal.4th 399, 426–427 (Martinez); People v. Zaragoza (2016) 1 Cal.5th 21, 37–39
(Zaragoza).)
       Applying this standard, we find the trial court did not err in excusing Juror
C-67. Time and again, Juror C-67 expressed uncertainty as to whether he could
set aside his personal antipathy to the death penalty and follow the law as
instructed. For example, when asked in the questionnaire whether he could put
aside his “personal feelings . . . and follow the law as the court explains it to you,”
the juror answered “Yes,” but “with the possible exception of the death penalty.”
The juror also mentioned his “reluctance about the death penalty” as something
which may affect his ability to be a juror or his participation as a juror in this trial.
He further stated that he did not know whether he could choose the death penalty
even “in the appropriate case.” Twice more when probed by the court during oral
examination about whether he “would always vote against the death penalty
despite any aggravating or negative evidence that may have been presented,” the
juror answered “I don’t know.” Given the juror’s own recognition that he did not
know whether he could follow the law or ever vote for the death sentence, the trial
court did not commit Witherspoon/Witt error when it found the juror was
substantially impaired. (People v. Wash (1993) 6 Cal.4th 215, 255 (Wash)
[finding no error in a trial court’s decision to dismiss for cause when the
venirewoman “consistently responded, ‘I don’t know’ in answer to the question
whether she was capable of voting for death”].)
       Both this court and the United States Supreme Court recognize that “those
who firmly believe that the death penalty is unjust may nevertheless serve as
jurors in capital cases” — but only “so long as they state clearly that they are
willing to temporarily set aside their own beliefs in deference to the rule of law.”
(Lockhart v. McCree (1986) 476 U.S. 162, 176; see, e.g., Martinez, supra, 47
                                           15
Cal.4th at p. 431 [applying Lockhart to the facts of the case].) In this context, the
crucial aspect of the trial court’s interaction with Juror C-67 was not the juror’s
“reluctance about the death penalty,” but instead the absence of a clear statement
from the juror regarding his willingness and ability to temporarily set aside his
personal beliefs, if necessary, to follow the law’s requirements. In answering
question 150 on the questionnaire, which asked whether the juror could suspend
“any preconceived notions you may have about the death penalty, and make any
penalty decision in this case based upon the law as it is given by the judge,” the
juror wrote, “No. My true beliefs are not ‘preconceived notions to be set aside.’ ”
Spencer argues that the juror’s answer merely expressed umbrage at his beliefs
being called “preconceived notions.” That is one interpretation of the answer, but
not one the trial court was required to adopt. After considering the juror’s other
in-person responses, his demeanor, and the full text of question 150 (which
prefaces the inquiry with the explanation that “a penalty decision must rest . . . in
law”), the trial judge could have fairly interpreted the prospective juror’s answer
to question 150 as conveying that he was not willing to set aside his beliefs to the
extent required by law. In light of the record, we see no basis to conclude the trial
court erred when it decided that Juror C-67’s views would prevent or substantially
impair the performance of his duties. (Witt, supra, 469 U.S. at p. 434 [“the
question is not whether a reviewing court might disagree with the trial court’s
findings, but whether those findings are fairly supported by the record”].)
       Despite ample evidence supporting the trial court’s decision, Spencer
nonetheless contends that Juror C-67’s excusal was improper because the juror did
not categorically reject the possibility of imposing death. Spencer argues that
because Juror C-67 “recognized there were cases where the death penalty was
warranted and . . . could imagine himself imposing such a punishment,” he was
not substantially impaired. We find otherwise.
                                          16
       A trial court may properly infer a prospective juror’s commitment to
perform the juror’s role with integrity, even where some equivocation is initially
present. (See People v. Stewart (2004) 33 Cal.4th 425, 447 (Stewart) [describing a
qualified juror as someone who may initially express hesitation about imposing
the death penalty and “yet, in response to brief follow-up questioning,
persuasively demonstrate an ability to put aside personal reservations, properly
weigh and consider the aggravating and mitigating evidence, and make that very
difficult determination concerning the appropriateness of a death sentence”].)
Nonetheless, the proper inquiry in determining whether Witherspoon/Witt error
occurred is not whether some evidence exists that the prospective juror could vote
for the death penalty. The standard is instead whether substantial evidence exists
to support the trial judge’s determination that the juror was substantially impaired
in terms of his ability to do so. The record provides support for the trial court’s
decision. So, the fact that Juror C-67 also gave some responses indicating that he
would not automatically vote against the death penalty is not grounds for reversing
the death judgment. (Martinez, supra, 47 Cal.4th at pp. 431–432 [“When a
prospective juror has made statements that tend to support the trial court’s
conclusion that the juror is not qualified, ‘the fact that the juror also gave
statements that might have warranted keeping [him] as a juror does not change the
conclusion’ that substantial evidence supports the trial court’s ruling.” (internal
alteration marks omitted)].)
       Indeed, the specific answers from Juror C-67 on which Spencer hinges his
argument do not change the overall equivocal nature of the juror’s responses.
Consider, for instance, the juror’s answer that “I can imagine things horrible
enough to get me to vote for the death penalty, I suppose.” The response, coming
only after Juror C-67 averred more than once that he did not know whether he
could follow the court’s instructions, was itself qualified and uncertain. The
                                           17
venireman “suppose[d]” he could “imagine” scenarios where he would vote for
death. While the trial court felt it could not “get into what” those scenarios were,
the juror’s questionnaire answer indicated that they involved circumstances not
present at Spencer’s trial — those featuring “torture or child victims.” The
prosecution had withdrawn the torture special circumstance allegation before jury
selection began, and the sole murder victim, age 35 when he died, was not a child.
To excuse the juror under such circumstances does not constitute
Witherspoon/Witt error. (People v. Jones (2017) 3 Cal.5th 583, 615 [affirming the
excusal of a prospective juror for cause when the juror “articulated only a single
hypothetical situation in which he could see himself voting for the death penalty
. . . and that hypothetical situation was not applicable in this case”]; People v.
Tate (2010) 49 Cal.4th 635, 666 (Tate) [“a prospective juror may be excused if his
or her views on capital punishment would cause him or her invariably to vote
either for death, or for life, in the case at hand”].)
       The equivocality of prospective jurors’ responses may be further
compounded by their demeanor, which trial judges can readily observe. (Witt,
supra, 469 U.S. at p. 428, fn. 9 [“ ‘[The] manner of the juror while testifying is
oftentimes more indicative of the real character of his opinion than his words.
That is seen below, but cannot always be spread upon the record.’ ”]; Stewart,
supra, 33 Cal.4th at p. 451 [“a trial judge who observes and speaks with a
prospective juror and hears that person’s responses (noting, among other things,
the person’s tone of voice, apparent level of confidence, and demeanor), gleans
valuable information that simply does not appear on the record”].) In this case, the
record affirmatively discloses that Juror C-67’s demeanor contributed to the trial
court’s decision to excuse him for cause. In discounting Juror C-67’s answer that
he “could imagine things horrible enough to get [him] to vote the death penalty”
— a crucial response on which Spencer rests his case — the court noted that Juror
                                            18
C-67 “thought a long time” before giving that answer. (See People v. Abilez
(2007) 41 Cal.4th 472, 498 [finding that “the trial court was well within its broad
discretion” when it excused a juror for cause based on the juror’s answers and
“[m]ore significantly” her hesitation before answering].)
       We defer to trial courts when they dismiss potential jurors based on their
equivocation and demeanor. (E.g., Zaragoza, supra, 1 Cal.5th at p. 42 [“We defer
to the trial court’s resolution of these conflicting responses, because that court had
the opportunity to assess the juror’s tone, apparent level of confidence, and
demeanor.”]; People v. Moon (2005) 37 Cal.4th 1, 15–16 [deferring to the trial
court’s evaluation of a prospective juror’s state of mind when the juror “was less
than consistent in her answers”]; Gray, supra, 37 Cal.4th at p. 194 [“In light of her
equivocal answers on voir dire, we defer to the trial court’s implicit determination
regarding Juror C.B.’s state of mind and conclude substantial evidence supports
the court’s ruling . . . .”].) Indeed, we have upheld such a decision even when a
prospective juror gave responses somewhat more indicative of her willingness to
vote for the death penalty than what Juror C-67 provided. (Martinez, supra, 47
Cal.4th at pp. 427–430, 433, 466 [affirming the decision to dismiss a juror who,
among other things, stated “I have some very strong views against the death
penalty. And I feel I could listen to the evidence and make a determination based
on the evidence”].)
       Finally, although trial courts have a responsibility to probe ambiguous juror
responses that may initially evince a reluctance to consider imposing the death
penalty (e.g., Stewart, supra, 33 Cal.4th at pp. 445–447), the court here made a
meaningful effort to engage with the questions raised by Juror C-67’s responses.
Given the circumstances of this case, we reject Spencer’s assertion that the trial
court had an obligation to engage in even “further questioning, as defense counsel
suggested” to the extent that Juror C-67’s answers revealed lingering ambiguity.
                                          19
While it is true that “[i]f the trial court remained uncertain as to whether [a
venireman’s] views concerning the death penalty would impair his ability . . . the
court [i]s free . . . to follow up with additional questions” (People v. Heard (2003)
31 Cal.4th 946, 965), it is not true that, once the court has formed a definite
impression, it still must ask more questions. (See Witt, supra, 469 U.S. at pp.
424–425 [noting that “many veniremen simply cannot be asked enough questions
to reach the point where their bias has been made ‘unmistakably clear’ ”]; Brown,
supra, 551 U.S. at p. 8 [reiterating that excusal of a juror may be appropriate even
when “ ‘[t]he precise wording of the question asked of [the venireman], and the
answer he gave, do not by themselves compel the conclusion that he could not
under any circumstance recommend the death penalty’ ”]; Tate, supra, 49 Cal.4th
at p. 678 [finding that the trial court did not err by denying the defense’s request
for further questioning when “the court could reasonably conclude that further voir
dire would not change its impression of [the prospective juror’s] state of mind”].)
       We find the trial court did not commit Witherspoon/Witt error. Because the
record supports the conclusion that a trial court could reasonably conclude Juror
C-67 was substantially impaired, the trial court did not err in dismissing the
prospective juror.

B. Probable Cause to Arrest

   1. Background
       Spencer complains the police lacked probable cause to arrest him and, as
such, the trial court erred in refusing to suppress his confession as the unlawful
“fruit” of his purportedly illegal arrest. To address this argument, we survey the
facts known to the San Jose Police Department at the time its officers apprehended
Spencer.



                                          20
       By the time the police arrested Spencer, they had taken into custody
Silveria, Travis, and Rackley. From the search of the vehicles that Silveria and
Travis were driving when arrested, officers recovered large sums of cash, duct
tape, and a stun gun. They had also identified Rackley and Jennings as suspects in
robberies at the Gavilan Bottle Shop and another location involving the use of a
stun gun.
       Upon being arrested, Silveria offered to help the police track down
Jennings and Spencer, the remaining suspects at large whose names the police
already knew through the tip provided by Cynthia and the investigation done by
Officer Hyland. At a motion hearing conducted some months before the
beginning of trial, Sergeant George McCall, the police officer who took the call
when “Cynthia” phoned the station the evening of January 28, 1991, testified. He
stated that the caller indicated the suspects were driving a Dodge Charger, and
they said they “were going to be leaving town and they were going to pull another
robbery that night.” She also provided a last name of “Silveras” or “Silveria” for
“Danny.”
       Sergeant McCall passed the information along to Detective Boyles and
Officer Hyland. Detective Boyles then spoke to Cynthia. Detective Boyles
testified that Cynthia provided a last name of Jennings for Matt and Silveria for
Danny during this conversation. She also provided Jennings’s address and said
Jennings was driving a vehicle that was possibly a Charger.
       Officer Hyland corroborated crucial details from Cynthia’s account when
he went to the suspects’ residences. For instance, one of Jennings’s brothers
informed Officer Hyland that Jennings, Rackley, Travis, Silveria, and Spencer
hung out as a group and that Jennings had packed a suitcase and left with the
others. The brother also confirmed that Spencer had a Charger. Silveria’s brother
likewise told the officer that Silveria had packed a suitcase and left. So Officer
                                         21
Hyland’s work revealed that Silveria, Travis, Rackley, Jennings, and Spencer hung
out as a group, and that members of the group had packed suitcases and left with
one another. These facts matched the information provided by Cynthia ––
including her information that the group was planning to skip town.
       When Silveria was arrested, he further cooperated with law enforcement.
He contacted Jennings, then directed the officers to the apartment where Jennings
and Spencer were staying and pointed out Spencer’s newly acquired vehicle to
them. The police then arrested Spencer when he and Jennings arrived back at the
apartment together.

   2. Analysis
       Probable cause to arrest exists where facts known to the arresting officer
would be sufficient to persuade a person of “reasonable caution” that the
individual arrested committed a crime. (People v. Celis (2004) 33 Cal.4th 667,
673.) Information provided by an anonymous informant can constitute a sufficient
basis for finding probable cause –– but only when “the informant’s statement is
reasonably corroborated.” (Jones v. United States (1960) 362 U.S. 257, 269.) In
examining whether police obtained such reasonable corroboration of an
informant’s tip, we apply a totality of the circumstances determination in which an
informant’s “ ‘veracity,’ ” “ ‘reliability,’ ” and “ ‘basis of knowledge’ ” are
“relevant considerations.” (Illinois v. Gates (1983) 462 U.S. 213, 230, 233
(Gates).) An informant’s veracity or reliability may be established by her having
provided tips that proved true. (See, e.g., Draper v. United States (1959) 358 U.S.
307, 309 (Draper) [noting that the informant Hereford “from time to time gave
information to [agent] Marsh regarding violations of the narcotic laws . . . [and]
Marsh had always found the information given by Hereford to be accurate and
reliable”].) An informant’s basis of knowledge –– the grounds upon which the


                                          22
informant believes or knows something to be true –– is also important, since the
tip supplied is more trustworthy if the informant has first-hand knowledge of the
criminal activity. (See, e.g., Gates, supra, 462 U.S. at pp. 277–280 [discussing
various cases where the court focused on whether the informant spoke with
personal knowledge].) What the court in Gates clarified, however, is that
“veracity,” “reliability,” and “basis of knowledge” are not rigid, “independent
requirements” which must all be present. (Id. at p. 230.) The focus instead is on
the “overall reliability” of the informant’s tip. (Id. at p. 233.)
       In this case, information known to Detective Boyles and Officer Hyland at
the time of Spencer’s arrest would indeed likely persuade someone “ ‘of
reasonable caution in the belief’ ” to conclude Spencer had committed a felony.
(Wong Sun v. United States (1963) 371 U.S. 471, 479.) During her first call to the
police, Cynthia informed Detective Boyles that “Danny, John, Matt, Chris and
Troy” were perpetrators of the stun gun robberies. Detective Boyles already knew
that Matthew Jennings and Troy Rackley — individuals identified by their full
names — were suspects. The detective thus was immediately able to corroborate
part of Cynthia’s information. Cynthia later also provided some of the suspects’
last names — Silveria for “Danny” and Jennings for “Matt” — and so solidified
the fact she had accurately named at least one person known to the police to be a
suspect (Matthew Jennings).
       Further corroboration of Cynthia’s information emerged from Officer
Hyland’s subsequent investigation. By speaking with the suspects’ family
members, Officer Hyland confirmed that they indeed hung out as a group, and that
some of them had packed suitcases and left with others in the group. While these
details may seem trifling, they lend credence to Cynthia’s tip that the men
committed the robberies together and were planning to leave town. As “innocent
behavior frequently will provide the basis for a showing of probable cause,” the
                                           23
pertinent question is not whether the activities corroborated by the police are
criminal in nature but rather, “the degree of suspicion that attaches to particular
types of noncriminal acts.” (Gates, supra, 462 U.S. at p. 244, fn. 13; see also, e.g.,
Draper, supra, 358 U.S. 307 at pp. 312–313 [a “classic case on the value of
corroborative efforts of police officials” (Gates, supra, 462 U.S. at p. 242) where
the court affirmed that the police had probable cause even though all the details
corroborated from an informant’s tip were of innocuous behavior]; People v.
Costello (1988) 204 Cal.App.3d 431, 446 [“Even observations of seemingly
innocent activity suffice alone, as corroboration, if the anonymous tip casts the
activity in a suspicious light.”]; People v. Ramirez (1984) 162 Cal.App.3d 70, 73–
75 [same].)
       That the five men hung out as a group is an innocent detail. It nonetheless
takes on a suspicious cast in light of Cynthia’s information linking all five together
as stun-gun robbers, and the knowledge that two of them were already suspects.
(See People v. Medina (1985) 165 Cal.App.3d 11, 19–20 [finding it “inappropriate
to conduct a piecemeal examination” of an informant’s tip on different suspects
“when the informant’s information linked these suspects and their houses together
and this link was also corroborated” (italics omitted)].) Likewise, that the men
were planning to leave town is a corroborated piece of information “relating not
just to easily obtained facts and conditions existing at the time of the tip, but to
future actions of third parties ordinarily not easily predicted.” (Gates, supra, 462
U.S. at p. 245.) This last piece of information — along with the nugget that the
men “were going to pull another robbery” on the same night Cynthia contacted the
police — imparted an urgency to the police investigation and, given the rest of the
corroborated details, gave rise to a fair inference that Cynthia gleaned her
information “either from the [suspects themselves] or someone they trusted.” (Id.
at p. 246.) So the details corroborated go beyond mundane facts that remain
                                          24
innocuous even in light of a tip. (Contra People v. Fein (1971) 4 Cal.3d 747, 752–
753 [finding no probable cause when the police corroborated only the
“defendant’s first name, his presence at the apartment, and the presence of the
[defendant’s vehicle]”].)
       By the time Silveria, Travis, and Rackley were under arrest, then, the police
had verified sufficient details of Cynthia’s tip to render them reasonably persuaded
that she was right about some things and so was “ ‘probably right about other
facts.’ ” (Gates, supra, 462 U.S. at pp. 244–245 [stating that such an inference
“suffices for the practical, common-sense judgment called for in making a
probable-cause determination”]; People v. Medina, supra, 165 Cal.App.3d at p. 18
[“ ‘corroboration of information to establish the veracity of the informer . . . is
based on the premise that if it can be shown that part of the information provided
by an informer is correct, this gives credibility to the remainder of the
information’ ”].) Such “other facts” include, in this context, Cynthia’s claim about
Spencer’s involvement in the robberies.
       The evidence recovered from the initial arrests further enhanced Cynthia’s
credibility. From a search of Silveria’s and Travis’s vehicles, the police recovered
substantial sums of cash and a stun gun — evidence highly corroborative of the tip
that the men committed robberies with the use of such a weapon. Silveria then
directed the officers to Jennings and Spencer’s location and pointed out Spencer’s
new car, a purchase that looks suspicious given the tip that Spencer had
participated in robberies in which the perpetrators got away with cash. The
officers then arrested Spencer when he arrived back at the apartment with
Jennings.
       Taking into account the totality of these circumstances, we conclude that
the arrest was made with probable cause, and the trial court did not err when it
refused to suppress Spencer’s confession on this basis. Nothing Spencer says
                                          25
persuades us otherwise. Spencer argues that Cynthia was not a “citizen-
informant” and therefore the information she provided could not be treated as
“presumptively reliable.” (See Gates, supra, 462 U.S. at pp. 233–234 [“if an
unquestionably honest citizen comes forward with a report of criminal activity —
which if fabricated would subject him to criminal liability — we have
found rigorous scrutiny of the basis of his knowledge unnecessary”]; People v.
Hogan (1969) 71 Cal.2d 888, 890–891; Humphrey v. Appellate Division (2002) 29
Cal.4th 569, 575–576.) Yet whether or not Cynthia fits the precise parameters of a
citizen informant is immaterial to our analysis. Neither we nor the police
presumed her information to be reliable. Instead the police substantiated her tip ––
and garnered sufficient corroboration to establish a substantial basis for crediting
her information. That proves sufficient. (Gates, supra, 462 U.S. at pp. 244–245
[“It is enough, for purposes of assessing probable cause, that ‘[corroboration]
through other sources of information reduced the chances of a reckless or
prevaricating tale,’ thus providing ‘a substantial basis for crediting the
hearsay.’ ”].)

C. Necessity of Miranda Readvisement

   1. Background
       Spencer next argues that, even if he had been lawfully arrested, his
confession to Madden’s murder must be suppressed because Sergeant Keech did
not advise him of his rights under Miranda v. Arizona (1966) 384 U.S. 436
(Miranda). Spencer concedes that Detective De La Rocha — who interrogated
him about the robberies — advised him of his rights and that he knowingly and
intelligently waived those rights. He thus concedes that the confession to the
robberies “would stand on its own.” Nonetheless, he contends that Sergeant



                                          26
Keech was under an obligation to readvise him of his Miranda rights when he
interrogated him about the murder.
       Spencer does not dispute that less than five hours passed between the time
when he waived his Miranda rights and when Sergeant Keech began his
interrogation. He also does not dispute that the following exchange took place
after Sergeant Keech introduced himself and his partner:
       “Keech:       We’re from Santa Clara Police Department. Okay, uh,
                     I understand you already talked to one of the San Jose
                     detectives. Is that correct?

       “Spencer:     Yes, I have.

       “Keech:       Okay. And I understand you . . .

       “Spencer:     I’ve admitted to being involved in a robbery.

       “Keech:       Okay. And he read you, uh, your rights?

       “Spencer:     Yes.

       “Keech:       Did you understand your rights?

       “Spencer:     Yes.

       “Keech:       Okay. And you waived your rights.

       “Spencer:     Yes.”
       After some further back and forth which, when transcribed, took about a
page, Sergeant Keech started the questions bearing on the murder. The sergeant
asked, “Where did you spend the night last night? First of all, you understand
your rights. You’re willing to talk to us. Is that correct?” to which Spencer
answered, “Yes.” The interrogation continued apace from there, with Spencer
eventually confessing to participating in the robbery and stabbing Madden
multiple times on the way out the door. After getting the details to the crime,

                                         27
Sergeant Keech once more brought up the Miranda rights. Spencer again
confirmed he was read “[his] Miranda rights,” that “I know my Miranda rights,”
and that he understood those rights. The interrogation terminated shortly
thereafter.

   2. Analysis
       Where a subsequent interrogation is “ ‘reasonably contemporaneous’ ” with
the prior waiver, and the prior waiver was “knowing and intelligent,” police need
not undertake a Miranda readvisement. (People v. Mickle (1991) 54 Cal.3d 140,
170 (Mickle).) In determining whether a subsequent interrogation is reasonably
contemporaneous, we consider the totality of the circumstances. Relevant
considerations include: “1) the amount of time that has passed since the initial
waiver; 2) any change in the identity of the interrogator or location of the
interrogation; 3) an official reminder of the prior advisement; 4) the suspect’s
sophistication or past experience with law enforcement; and 5) further indicia that
the defendant subjectively understands and waives his rights.” (People v.
Smith (2007) 40 Cal.4th 483, 504 (Smith).)
       We conclude that the subsequent interrogation conducted by Sergeant
Keech and his partner was indeed reasonably contemporaneous with Spencer’s
waiver of his Miranda rights. Only five hours had passed between the time of the
waiver and the interrogation; there was no change in the location of the
interrogation and Spencer remained in custody in the interim; Sergeant Keech
officially reminded Spencer of his prior advisement; and Spencer unambiguously
indicated that he understood the advisement and waived his rights.
       Under similar circumstances, this court has more than once found that a
Miranda readvisement is not required. In Mickle, supra, 54 Cal.3d at p. 171, for
instance, we held that that no Miranda violation occurred when, among other


                                         28
things, the subsequent interrogation took place 36 hours after the last advisement,
the suspect remained in official custody, and “[n]othing in the record indicate[d]
that defendant was mentally impaired or otherwise incapable of remembering the
prior advisement and deciding to answer a few more questions.” Likewise, in
Smith, supra, 40 Cal.4th at pp. 504–505, we ruled that no readvisement was
necessary when the second interrogation occurred “less than 12 hours after the
first interrogation ended,” the defendant remained in custody, and “[t]he same
officers conducted the interrogation, in the same office, and asked defendant
whether he remembered the Miranda warnings.” We came to the same conclusion
in People v. Williams (2010) 49 Cal.4th 405, 435 (Williams), in which we
determined that the second interrogation — “having occurred approximately 40
hours later in the same location as the first, and was conducted by one of
the previous interrogators” — was reasonably contemporaneous with the waiver.
       True: not all of the relevant factors tend to cut in the People’s favor. In
particular, different officers interrogated Spencer about the murder and the
robberies, and Spencer — 21 years old at the time and having an “ ‘insignificant
record of criminal conduct’ ”3 — can be presumed not to have much
“sophistication or past experience with law enforcement.” (Smith, supra, 40
Cal.4th at p. 504.) Nonetheless, we find that these factors do not persuade us to a
different conclusion.
       The Miranda court itself confronted a situation in which two different law
enforcement authorities interrogated a suspect for two different crimes. What it
concluded is that “[a]lthough the two law enforcement authorities are legally
distinct and the crimes for which they interrogated [defendant] Westover were
different, the impact on him was that of a continuous period of questioning.”

3    The prosecution noted that at the time of his arrest, Spencer had four prior
misdemeanor convictions and three jail sentences.
                                         29
(Miranda, supra, 384 U.S. at p. 496; see also People v. Pettingill (1978) 21 Cal.3d
231, 245 [observing in a different context that “the large majority of suspects . . .
see the uniform only as a symbol of police authority, [and] neither know nor care
about the precise jurisdictional competence of their interrogators”].) Of course,
the “continuous period of questioning” in Miranda meant that the failure to
provide the necessary advisement at the first interrogation tainted the subsequent
questioning –– during which warnings were given. (Miranda, supra, 384 U.S. at
p. 496.) Yet the same logic runs in reverse, at least barring a gap in time between
portions of the interrogation sufficiently long to establish that the second segment
should be treated as an entirely separate session. (Accord People v. Duff (2014)
58 Cal.4th 527, 555 [“We have permitted as ‘reasonably contemporaneous’ the
resumption of interrogation without a readvisement even a day or two after the
initial waiver.”].) Here, Spencer was advised of his rights at the initial
interrogation by Detective De La Rocha of the San Jose Police Department, and
was later reminded of them by Sergeant Keech of the Santa Clara Police
Department. Despite the fact these departments are legally distinct and “the
crimes for which [the officers] interrogated” Spencer were different (Miranda,
supra, 384 U.S. at p. 496), Sergeant Keech’s interrogation may be reasonably
contemporaneous with Detective De La Rocha’s questioning. Readvisement
therefore was unnecessary.
       This conclusion is not affected by Spencer’s youth or the fact that his
criminal record consisted only of misdemeanors. (See People v. Stallworth (2008)
164 Cal.App.4th 1079, 1089 [ruling that the police were not obligated to readvise
an 18-year-old suspect with an 11th grade education even though the record does
not establish whether the suspect’s “juvenile proceedings gave him experience
with Miranda warnings”].) Moreover, the importance of Spencer’s relative
inexperience and the different identities of his interrogators is overshadowed by
                                          30
the presence of clear indicia that Spencer understood his Miranda rights –– and
chose to waive them.
       At the beginning of the interrogation, Sergeant Keech not only reminded
Spencer of his prior Miranda warnings, but also confirmed Spencer understood
and waived his rights. Before asking Spencer about the circumstances
surrounding the murder, the Sergeant again asked whether Spencer understood his
rights and was willing to talk — to which Spencer again unambiguously answered
yes. Finally, near the end of the interview –– when Sergeant Keech once more
brought up the Miranda warnings — Spencer repeated some of the rights verbatim
back to the officer. While a belated advisement cannot render admissible a prior
confession, we do not think that this exchange constitutes an after-the-fact
Miranda warning. Rather, coming at the end of the interview, the exchange
confirms that Spencer knew his rights throughout the interrogation and waived
them when he willingly talked to the officers.
       Taking into account the totality of relevant circumstances, we find the
officers interrogating Spencer on Madden’s murder were not required to readvise
him of his Miranda rights.

D. Voluntariness of Confession

   1. Background
       Separate from his Miranda-focused argument, Spencer contends that his
confession was involuntary. His argument is based on a long statement Sergeant
Keech made, laying out what he believed happened the night Spencer and his
cohort killed Madden. After giving the facts of the case as he believed them to be,
Sergeant Keech exhorted Spencer to tell his “side of the story.” The Sergeant
continued, “You don’t take this chance right now, you may never get it again.
And if you don’t think I can’t prove this case, if you don’t think I can’t fry you,


                                          31
you’re sadly mistaken, Chris. Now, don’t let these guys lay it all on you ’cause
that’s what’s happening. You get a chance to lay some back and say exactly what
happened. Whose idea was it?”
       Spencer responded by attempting to negotiate. The attempt was cut short
by Sergeant Keech, who said, “If you tell me the whole story, it’s because you
want to tell me the whole story.” After some inaudible comments, the Sergeant
reiterated, “. . . don’t ask me to make you any promises. I can’t make you any
promises, Chris. All I can tell you is that I’ll put this down as accurately as you
tell me what, what really happened, and that’ll be your story.” At this point, the
interrogation proceeded with Spencer providing many of the details about what
happened the night of Madden’s murder and the morning after.
       Towards the end of the interview, Sergeant Keech asked Spencer a series of
questions regarding the statement Spencer just gave.
       “Keech:       The statement that you gave us tonight, was that free
                     and voluntarily given?

       “Spencer:     Yes.

       “Keech:       Did we make you any promises?

       “Spencer:     No.

       “Keech:       Did we coerce you in any way?

       “Spencer:     What does that mean?

       “Keech:       Did we threaten you?

       “Spencer:     [Laughs] No.”
   2. Analysis
       Spencer is of course correct that “[a]n involuntary confession may not be
introduced into evidence at trial.” (People v. Carrington (2009) 47 Cal.4th 145,


                                         32
169 (Carrington).) In determining whether a confession is involuntary, we
consider the totality of the circumstances to see if a defendant’s choice to confess
was not “ ‘essentially free’ ” because his will was overborne by the coercive
practices of his interrogator. (Ibid.) We have found a confession not “essentially
free” when a suspect’s confinement was physically oppressive, invocations of his
or her Miranda rights were flagrantly ignored, or the suspect’s mental state was
visibly compromised. (People v. Neal (2003) 31 Cal.4th 63 (Neal); People v.
McClary (1977) 20 Cal.3d 218 (McClary); People v. Hogan (1982) 31 Cal.3d 815
(Hogan).) We are not persuaded the circumstances of Spencer’s interrogation are
comparable.
       We begin by noting certain factual predicates missing from Spencer’s
involuntariness claim. Spencer makes “no claim of physical intimidation or
deprivation” and “no assertion of coercive tactics other than the contents of the
interrogation itself.” (People v. Holloway (2004) 33 Cal.4th 96, 114 (Holloway).)
(Contra Neal, supra, 31 Cal.4th at p. 84 [a case in which we held the confession
involuntary, in part, because the defendant “was placed [overnight] in a cell
without a toilet or a sink,” “did not have access to counsel or to any other
noncustodial personnel,” “was not taken to a bathroom or given any water until the
next morning,” and “was not provided with any food until some time following the
third interview, after more than 24 hours in custody and more than 36 hours since
his last meal”].) Nor does Spencer dispute that, prior to the interview by Sergeant
Keech, he received Miranda warnings and waived his rights.4 (See Holloway,
supra, 33 Cal.4th at p. 114 [a voluntary confession case where suspect was “fully
advised of his rights and voluntarily waived them”]; Williams, supra, 49 Cal.4th at
p. 442 [another voluntary confession case where “Defendant understood his right

4     Spencer does argue that he should have been readvised of those rights by
Sergeant Keech, but we have rejected that claim.
                                         33
to counsel and to remain silent, but waived those rights”].) (Contra People v.
Hinds (1984) 154 Cal.App.3d 222, 230–231 [a case of coercion in which the
detective “spoke softly and indistinctly” while reading the defendant his Miranda
rights and did not ask if the defendant wished to waive his rights].) Despite his
advisement, Spencer did not attempt to invoke any of these rights during the
interview. (Contra Neal, supra, 31 Cal.4th at p. 74 [the suspect invoked both his
right to remain silent and his right to counsel — the latter “ ‘ probably’ ‘7 to 10
times’ ” — only to be deliberately ignored so that the detective could “obtain a
statement”]; McClary, supra, 20 Cal.3d at pp. 222–226 [“The People concede that
the officers violated defendant’s Miranda rights when they ignored her repeated
requests for an attorney to assist her . . . .”].) These missing elements distinguish
Spencer’s case from those where we have found the confession to be involuntary.
(See People v. Winbush (2017) 2 Cal.5th 402, 454 (Winbush) [“This flagrant
violation of Miranda weighed heavily in our conclusion that the interrogation [in
Neal] was coercive.”]; Holloway, 33 Cal.4th at p. 117 [distinguishing McClary
where “we have no such insistent overriding of a defendant’s invocation of rights,
no false representation regarding the death penalty, and no promise of a particular
charge or other particular lenient treatment in exchange for cooperation”].)
       We also find significant Sergeant Keech’s conduct, and Spencer’s response
to it. While Sergeant Keech confronted Spencer and gradually gleaned from him
ever more incriminating details, the record does not indicate that the officer made
vituperative statements. The officer engaged in no name-calling, no obvious
strong-arm tactics, and no base appeals to Spencer’s deeply held beliefs. (Contra
People v. Esqueda (1993) 17 Cal.App.4th 1450, 1468, 1478, 1485–1486 [a case in
which the police officers “got in [the defendant’s] face,” “yelled,” “screamed,”
“made accusations about him not being a man or not having any balls,” and
“appealed to his manhood, his religion, and his Hispanic heritage”].) For his part,
                                          34
Spencer gave coherent, responsive answers and did not appear excessively fearful
or distressed. (See Carrington, supra, 47 Cal.4th at p. 175 [a case where we found
the confession to be voluntary because, among other things, “[t]here is no
indication that defendant was induced by fear to make a statement. She appeared
lucid and aware throughout the entire interrogation session and never asked the
police officers to terminate the interview. Defendant spoke with confidence, and
her answers were coherent”].) (Contra Hogan, supra, 31 Cal.3d at p. 828 [an
involuntary confession case in which the defendant gave a statement while
“sobbing,” “weeping” and “eventually [becoming] so upset that he vomited”].)
Spencer also had the wherewithal to articulate –– time and again –– a version of
events that minimized his involvement. Along the way, he changed his story from
one emphasizing that he knew nothing about the offense, to one admitting he was
at the scene but maintaining he had not participated in the killing, to finally
admitting that he stabbed the victim. (See Williams, supra, 49 Cal.4th at pp. 442,
444 [crediting the fact that “defendant continued to deny responsibility in the face
of the officers’ assertions” as evidence that the defendant’s will was not
overborne].)
       In addition, Spencer acknowledged at the end of the interview that
his confession was “free and voluntarily given.” He confirmed that the
officers made him no promises and that they did not threaten him. Indeed,
he was comfortable enough so that he could laugh when responding “no” to
the question whether he was threatened.
       Given these circumstances, we do not find a basis here to conclude that the
interrogation techniques Spencer complains of amounted to coercion. These
complained-of tactics include “repeated expressions that appellant was lying, an
implication that the death penalty would be imposed, fabricated evidence against
appellant, and implied promises of leniency” in combination with “appellant’s
                                          35
physical state and personal characteristics.” That Sergeant Keech told Spencer,
even repeatedly, that “the police knew he was lying about the extent of his
involvement” does not rise to the threshold necessary to taint the interrogation as
unlawful. Spencer did lie — artlessly — and the sergeant confronted him with
inconsistencies in his story. This is not an improper interrogation technique, as an
interrogation may include “ ‘exchanges of information, summaries of evidence,
outline of theories of events, confrontation with contradictory facts, even debate
between police and suspect.’ ” (Holloway, supra, 33 Cal.4th at p. 115.)
       Insofar as Spencer is suggesting that Sergeant Keech engaged in
impermissible tactics amounting to “brainwashing” when laying out a narrative of
what he believed happened on the night of Madden’s murder, we note it was
Spencer himself who supplied many of the details. An example: while Sergeant
Keech stated that Spencer and his coconspirators got to Leewards early and waited
to ambush Madden, Spencer added the fact that he and his friends had waited
about “two, two and a half hours” until Madden exited the building and that, while
waiting, he saw janitors who drove a “white van” and were “waxing the floors.”
On the more crucial aspects of the crime, Spencer, again, confessed to details not
suggested by Sergeant Keech. For instance, after much prevarication, Spencer
admitted that he stabbed Madden “[t]hree or four times” before handing the knife
to Travis. Sergeant Keech, in contrast, advanced the theory that Spencer “and
Danny and John, you guys, all three of you, stabbed that dude” without suggesting
the order in which each perpetrator stabbed Madden or how many times they did
it.
       Sergeant Keech’s “outline of theories of events” did not come near the kind
of scenario that was the basis for our finding of unconstitutional “brainwashing” in
a previous case. (Holloway, supra, 33 Cal.4th at p. 115.) In Hogan, supra, 31
Cal.3d at p. 843, we acknowledged that coercion may include “ ‘the brainwashing
                                         36
that comes from repeated suggestion and prolonged interrogation.’ ” What the
police had done in Hogan, however, was to “repeatedly suggest[] to appellant that
he was unquestionably guilty and that he suffered from mental illness.” (Ibid.)
Moreover, “[t]he question of appellant’s mental illness” was not only “raised by
the interrogating officers” but also “reinforced by appellant’s wife and her
communication to him that yet another police officer thought he had gone berserk
and committed the homicides.” (Ibid.) These suggestions, combined with
prolonged interrogations, resulted in the defendant himself eventually expressing
doubts as to his own sanity. (Id. at pp. 835–838.) No circumstance suggesting
that such a brainwash occurred presents itself here.
       We likewise dispose of the rest of Spencer’s arguments regarding Sergeant
Keech’s conduct in the interrogation room. Although Sergeant Keech brought up
the death penalty — remarking that “if you don’t think I can’t fry you, you’re
sadly mistaken” — the statement was made in isolation and Spencer did not
appear cowed by the remark. In any event, “ ‘a confession will not be invalidated
simply because the possibility of a death sentence was discussed.’ ” (Holloway,
supra, 33 Cal.4th at p. 115–116 [finding the confession voluntary despite the
detective stating “We’re talking about a death penalty case here”]; Williams,
supra, 49 Cal.4th at pp. 437–438 [same, despite the detectives referring to the “gas
chamber” more than once].) Instead, a constitutional violation will be found “only
where the confession results directly from the threat such punishment will be
imposed if the suspect is uncooperative, coupled with a ‘promise [of] leniency in
exchange for the suspect’s cooperation.’ ” (Holloway, supra, 33 Cal.4th at pp.
115–116.) Here, Sergeant Keech made no promise of leniency. Contrary to what
Spencer argues, the Sergeant’s suggestion that Spencer did not mean to kill the
victim but only to “cut” him did not amount to an implied promise of leniency.
(Williams, supra, 49 Cal.4th at p. 444 [holding that “the suggestions made by the
                                         37
interrogating officers that defendant may not have been the actual killer, or may
not have intended that the victim die” were a permissible interrogation tactic];
Carrington, supra, 47 Cal.4th at p. 171 [similar].) Indeed, Sergeant Keech
expressly told Spencer that he “can’t make [him] any promises” and that Spencer
should not ask for them.
       Along the same line, we find no error in Sergeant Keech’s false
representation that the police had found Spencer’s fingerprints at the crime scene.
(People v. Farnam (2002) 28 Cal.4th 107, 182 (Farnam) [stating that “[w]here the
deception is not of a type reasonably likely to procure an untrue statement, a
finding of involuntariness is unwarranted” and that “the deception concerning
defendant’s fingerprints was unlikely to produce a false confession”]; People v.
Musselwhite (1998) 17 Cal.4th 1216, 1241 [finding the confession admissible
because “it does not follow that [falsely] telling a murder suspect in the course of
questioning that his prints had been lifted from the neck of the homicide victim
‘caused’ him to confess”]; People v. Watkins (1970) 6 Cal.App.3d 119, 124–125
[similar]; accord Smith, supra, 40 Cal.4th at pp. 505–506 [listing cases where
“[c]ourts have repeatedly found proper interrogation tactics” both “intimidating
and deceptive”].)
       Finally, Spencer’s “physical state” and “personal characteristics” do not
strike us as sufficient bases to disturb the trial court’s decision to admit his
confession. (See People v. Dykes (2009) 46 Cal.4th 731, 753 (Dykes) [rejecting
the defendant’s claim that “his decision to confess was based upon his youth and
his absence of experience with the criminal justice system” since “there was no
indication of police exploitation of these circumstances”].) It is true that Spencer
was coughing during the interrogation and stated that he had bronchitis. There is
no evidence, however, that the cough diminished Spencer’s mental faculties or
made him especially vulnerable to Sergeant Keech’s questioning. Indeed, the
                                           38
activities that Spencer admitted to engaging in the night before and the morning of
his arrest indicated a rather robust constitution; however bad his bronchitis may
have been, it did not keep him from driving around with his friends, enjoying a
night at a hotel, or going shopping for a new car, new clothes, and new shoes in
the morning.
       In light of this analysis and the circumstances of Spencer’s interrogation,
we conclude that his confession was voluntary.

E. Propriety of Victim Impact Statements

   1. Background
       Four members of Madden’s family gave victim impact statements at the
penalty phase of the trial. In addition, three witnesses testified as to how
Madden’s wife received the news of his death. Spencer complains that the number
of witnesses, the presentation of their testimonies, and the content of their
statements were “excessive, irrelevant and highly prejudicial.” In particular, he
complains that too many witnesses discussed the impact of Madden’s death on his
wife; that they discussed too extensively the effect of his death on individuals who
did not testify — including Madden’s daughter, who was seven years old at the
time of her father’s death; that they talked about Madden’s life at points in time far
removed from his death; and that photographs of Madden should not have been
introduced into evidence.

   2. Analysis
       Evidence relating to a murder victim’s personal characteristics and the
impact of the crime on the victim’s family is relevant to show the victim’s
“ ‘uniqueness as an individual human being’ ” and thereby “the specific harm
caused by the defendant.” (Payne v. Tennessee (1991) 501 U.S. 808, 823, 825.)
Under California law, such evidence is admissible as a circumstance of the crime

                                          39
under section 190.3, factor (a). (People v. Edwards (1991) 54 Cal.3d 787, 835;
People v. Russell (2010) 50 Cal.4th 1228, 1264 (Russell).) Victim impact
statements are, by their nature, emotional. They merit exclusion only if they
constitute such “inflammatory rhetoric” as to elicit “purely emotional or irrational
responses from the jury.” (People v. Simon (2016) 1 Cal.5th 98, 138 (Simon).)
We review a trial court’s decision to admit victim impact evidence for abuse of
discretion. (Ibid.)
       With the exception of the photographs, Spencer does not appear to have
objected to the introduction of the victim impact evidence.5 To preserve a claim
of error regarding the admission of evidence, a party must object to its admission.
(People v. Pollock (2004) 32 Cal.4th 1153, 1181 (Pollock)); Simon, supra, 1
Cal.5th at p. 139 [stating that it was “incumbent” upon the defendant “to monitor
the victim impact evidence on an ongoing basis during the penalty phase and raise
any specific objections at that time”].) The absence of such an objection from
Spencer forfeits any claim on appeal that the testimonies were erroneously
admitted.
       Even if Spencer had objected, his argument still fails on the merits. The
number of witnesses that testified in this case, the content of their testimonies, and
the decision to admit four of the victim’s photographs are all within the limits of
what we found proper in prior cases. In Simon, supra, 1 Cal.5th at pp. 135–139,
for example, we affirmed the trial court’s decision to allow six witnesses to give
victim impact statements, which described “the nature of their relationships with
the victims, how they learned about the crimes, and how the crimes impacted their
lives.” This was precisely the nature of the testimonies offered in Spencer’s case,


5        Indeed, in raising an objection to the photographs, trial counsel stated, “I’m
not going to bother to stand up and object to things that I know the law permits
. . . .”
                                          40
where family members testified about their relationship with the deceased, how
they learned about his death (with Sissy’s narrative given special emphasis
through the testimonies of those who saw how she reacted to the news that her
husband had died), and how his murder affected their lives. Like in Simon, the
testimonies painted a picture of emotional devastation, “but that is to be expected
when loved ones have been brutally murdered.” (Simon, supra, 1 Cal.5th at p.
140.) And as in Simon, our independent review of the record indicates the
evidence was not so emotional — even when accompanied with pictures (id. at pp.
135–136) — “that the trial court’s failure to exclude it amounted to an abuse of
discretion or rendered [the] trial fundamentally unfair.” (Id. at p. 140.)
       Focusing on the specific facets of the victim impact evidence Spencer
challenges does not persuade us otherwise. Seven people offered victim impact
statements in this case, with testimonies spanning about 73 pages. Spencer calls
our attention to a case where the evidence introduced was more limited. While it
is true that in People v. Roldan (2005) 35 Cal.4th 646, 732–733, only one family
member testified and her “time on the stand was relatively short and subdued,”
Spencer advances no persuasive reason for why Roldan should be treated as
setting the upper limit on victim impact evidence. Having reviewed the statements
from four members of Madden’s family and three unrelated persons who testified
to Sissy’s reaction upon learning of her husband’s death, we believe the evidence
— while somewhat cumulative — was not excessive. (See Winbush, supra, 2
Cal.5th at p. 464 [discussing cases where more than seven people offered
testimony, which was found to be “not unfairly excessive”].)
       Nor was it improper that the witnesses discussed the impact of the victim’s
death on their own lives, as well as the lives of other family members ––
irrespective of whether these family members themselves testified. (People v.
Panah (2005) 35 Cal.4th 395, 495 [“There is no requirement that family members
                                          41
confine their testimony about the impact of the victim’s death to themselves,
omitting mention of other family members.”].) No authority supports Spencer’s
suggestion that because somebody testified, others must not talk about the
testifying person’s experience. The same goes for his contention that because
somebody — like Madden’s young child and aged great-grandmother — did not
take the stand, the number of witnesses who may properly discuss the impact of
the murder on those individuals must be kept to “at most, one.” Our precedent, in
fact, is to the contrary. (E.g. Russell, supra, 50 Cal.4th at p. 1265 [“Though the
victims’ wives did testify about the impact of their husbands’ deaths on their
families, we reject defendant’s claims that the victims’ children were precluded
from providing testimony regarding their personal experiences resulting from the
deaths of their fathers.”]; id. at p. 1264 [finding no abuse of discretion in the trial
judge’s decision to allow at least two witnesses to talk about how a father’s death
affected his son Christopher even though Christopher himself did not take the
stand].)
       Spencer also contends Madden’s family may testify only about events close
to the time of his death. We disagree. (People v. Garcia (2011) 52 Cal.4th 706,
751–752 (Garcia) [“The People are entitled to present a ‘ “complete life histor[y]
[of the murder victim] from early childhood to death.” ’ [Citation.] Such
evidence, which typically comes from those who loved the murder victim, shows
‘how they missed having [that person] in their lives.’ ”].) As long as the events
relayed are not otherwise unduly prejudicial, they may include anecdotes culled
from a lifetime of shared experiences between the victim and those he left behind.
(People v. Brown (2004) 33 Cal.4th 382, 398 [“To the extent [those who give
victim impact statements] also recollected past incidents or activities they shared
with [the victim], their testimony simply served to explain why they continued to


                                           42
be affected by his loss and to show the ‘victim’s “uniqueness as an individual
human being” ’ ”].)
       So too may a jury be shown pictures of the victim in happier times when it
considers testimonies about the devastation brought about by his death. The
prosecution here entered four such pictures into evidence, including two of
Madden with his daughter around Christmas. These pictures did not create unfair
prejudice. (See, e.g., Garcia, 52 Cal.4th at pp. 720–721, 752–754 [finding no
error where the jury was shown an 11-minute 45-second videotape consisting of a
photo montage of the victim depicting images of him “as a boy sleeping with a
puppy” and as an adult “getting married, raising children, relaxing at home, and
enjoying the outdoors”]; People v. Brady (2010) 50 Cal.4th 547, 579 (Brady)
[finding no abuse of discretion in the trial judge’s decision to admit a videotape
depicting the murder victim celebrating Christmas with his family].)
       Perhaps recognizing the limitations of his argument concerning victim
impact evidence under our case law, Spencer seeks to have us abandon it. He
urges us to reconsider our prior rulings and adopt a narrower limit for victim
impact evidence, in line with what he argues is the approach taken by other states.
We have been extended such invitations before — and refused them. (E.g.,
Pollock, 32 Cal.4th at pp. 1182–1183.) We continue to do so now.
       Under well-established California law, we find that the trial court did not
abuse its discretion in admitting the victim impact evidence given in this case.

F. Admission of Potentially Inflammatory Evidence

   1. Background
       Although we find the victim impact evidence properly admitted, we
nonetheless consider Spencer’s argument that “[t]he prosecution used physical
evidence and expert testimony to compound the prejudicial effects of its victim


                                         43
impact presentation.” The physical evidence to which Spencer refers is two
exhibits. One is a photograph of Madden’s thigh, showing four abrasions
consistent with burns from a stun gun; the other is the shirt that Madden wore on
the night of his death, displayed on a mannequin. The jury thus saw a bloodied
shirt with multiple markers attached to it to show deformities left by the stabbing.
The jury also heard testimony from the medical examiner, Doctor Pakdaman, who
referred to the shirt and photograph during his examination. Spencer asserts that
the doctor’s testimony was “entirely cumulative and unnecessary.” To the extent
that the testimony introduced something new by focusing on how much Madden
was likely to have suffered, says Spencer, it was unreliable and inflammatory.

   2. Analysis
       Spencer’s various arguments may be distilled to the contention that the trial
court abused its discretion in admitting the physical evidence and expert testimony
because their “probative value [was] substantially outweighed by the . . . danger of
undue prejudice.” (Evid. Code, § 352.) He fails to appreciate, however, how
circumscribed is the court’s discretion to exclude evidence at the penalty phase.
(People v. Box (2000) 23 Cal.4th 1153, 1201 (Box).) The contrast between the
guilt and penalty phases of a capital trial is starkly evident in how certain
testimony permissible at the penalty stage would be inappropriate during the guilt
phase. (People v. Haskett (1982) 30 Cal.3d 841, 863 (Haskett) [stating that
“appeals to the sympathy or passions of the jury are inappropriate at the guilt
phase” but not so at the penalty stage].) Because “at the penalty phase the jury
decides a question the resolution of which turns . . . on the jury’s moral
assessment,” “[i]t is not only appropriate, but necessary, that the jury weigh the
sympathetic elements of defendant’s background against those that may offend the
conscience.” (Ibid.) At the penalty phase, therefore, the prosecution is entitled to


                                          44
introduce evidence “to place the capital offense and the offender in a morally bad
light.” (Box, supra, 23 Cal.4th at p. 1201.)
       The bloodstained shirt is admissible to show the brutality of the crime
Spencer committed. (People v. Zambrano (2007) 41 Cal.4th 1082, 1138
(Zambrano) [“The prosecution need not sap the force of its case by presenting
only the most antiseptic evidence . . . .”].) Moreover, although the prosecution
witnesses admitted that more blood got on the shirt as Madden’s body was being
transported to the coroner’s office, the fact that the shirt did not look as it did
when Spencer left Madden merely goes to the probative value of the evidence.
What’s more, the shirt only became more bloody because law enforcement was
trying to maintain the position of the body, found facedown, in transporting it to
the coroner’s office, and blood seeped out from the already inflicted wounds in the
process. So the probative value of the shirt was not much affected by the
additional blood as the blood “all came from the wounds that were inflicted on Mr.
Madden’s body.” And neither was the danger of undue prejudice, since Spencer’s
trial counsel alerted the jury to the fact that the shirt had less blood on it when
Madden’s body was found.
       As to the balance between the two, we believe the trial court acted within
its discretion in finding that the probative value of the shirt was not substantially
outweighed by the risk of undue prejudice. Consistent with our holding in People
v. Medina (1990) 51 Cal.3d 870, 898–899 — a case where the prosecution entered
into evidence a mannequin wearing a victim’s bloodstained shirt — we find that
“[t]he trial court was in a far better position than we to assess the potential
prejudice arising from the display of such physical evidence.” Upon the record
before us, we see no basis to upset its decision.
       Spencer relies on two out-of-state cases in arguing to the contrary: People
v. Blue (Ill. 2000) 724 N.E.2d 920 and U.S. v. Sampson (D.Mass. 2004) 335
                                           45
F.Supp.2d 166 (Sampson). Both cases are distinguishable. In Blue, supra, 724
N.E.2d at p. 934, the court found that the victim’s police uniform, splattered with
his blood and brain matter, was “probative of a material fact” but nonetheless
should have been excluded because its “potential prejudice . . . outweighed its
probative value.” Yet the standard applied in Blue does not appear to be the same
as the standard governing the admissibility of evidence in this state. Our Evidence
Code makes clear that a trial court has the discretion to exclude evidence if its
probative value is substantially outweighed by the danger of prejudice. (Evid.
Code, § 352.) That the potential prejudice of a piece of evidence simply
outweighed its probative value is thus not enough for the trial court to refuse to
admit the evidence. Moreover, the court in Blue identified a “a coalescence of
facts that tip the evidentiary scale” in finding that the blood- and brain-stained
shirt should have been excluded. (Blue, supra, 724 N.E.2d at p. 934.) That
“coalescence” contained a number of facts not found in this case, such as: the
challenged evidence was “not just bloody clothes, but the clothes of a police
officer, which . . . are uniquely ‘charged with emotion’ ”; “the jury knew that the
stains on the uniform were not only from the officer’s blood — a concept
disturbing in and of itself — but also from the officer’s brains”; and “the trial
court appeared to encourage the jury to engage in a tactile interaction with the
uniform.” (Ibid.) In short, defendant’s emphasis on Blue –– a case concerning
facts with “uniquely ‘charged with emotion’ ” –– does not persuade us. (Ibid.)
       The same applies to Sampson. There, the District Court for the District of
Massachusetts decided to exclude bloody shirts worn by the victims because of
“unique considerations.” (Sampson, supra, 335 F.Supp.2d at pp. 184–185.) The
court in Sampson also applied a “more restrictive” standard for admissibility than
is demanded by our Evidence Code. (Id. at p. 177.) Furthermore, simply because
a trial court exercised its discretion to exclude the shirts does not mean that it
                                          46
would be an abuse of discretion to do otherwise. (People v. Medina, supra, 51
Cal.3d at p. 899 [“Although the court reasonably could have excluded the
mannequins from the jury room, we find no abuse of discretion in the court’s
contrary ruling.”].)
       Spencer fares no better with his argument regarding photographs of the
abrasions on Madden’s thigh. The prosecution introduced this picture to highlight
the extent of Madden’s suffering. As he was being stabbed by Spencer, Madden
was simultaneously shocked by Silveria and his body bore the wounds of both.
The photograph is admissible for the same reasons as the shirt –– a conclusion that
holds despite the fact that Silveria, and not Spencer, inflicted the stun gun injuries.
As relevant evidence both of the nature of the crime and Spencer’s indifference to
the victim’s suffering, the photograph was properly admitted. Its probative value
was not substantially outweighed by the danger of undue prejudice — the former
being relatively high since Spencer admitted to stabbing Madden at the same time
that Silveria shocked him, and the latter being relatively low as the jury knew that
it was Silveria who shocked Madden.
       Finally, we find that the trial court did not abuse its discretion by allowing
the medical examiner to testify. Doctor Pakdaman’s testimony during the penalty
phase did not simply duplicate the statements he gave during the guilt portion.
While there was some overlap, his testimony at the penalty phase focused more on
how much Madden was likely to have suffered during his final moments (and less
on the cause of death, as explained in technical detail during the guilt phase). For
instance, Doctor Pakdaman testified that Madden’s hand was clenched when rigor
mortis set in, a fact consistent with his having struggled mightily but fruitlessly
against his bonds before he died. The doctor also testified that Madden did not die
immediately from his injuries, as indicated by the foam found in his airways and
the abrasion on his head. While Spencer got Doctor Pakdaman to say that the
                                          47
clenched hand was also consistent with something other than the victim having
struggled and the estimated time of death was a guess, the doctor’s testimony was
nonetheless based on evidence and reasonable inferences drawn therefrom.
Simply because other inferences were possible does not make the testimony
unreliable. Likewise, just because the testimony placed the killing in a “morally
bad light” does not render it inflammatory, and therefore inadmissible. (Box,
supra, 23 Cal.4th at p. 1201.)
       Spencer resists this conclusion. He purports to find support for his position
in People v. Love (1960) 53 Cal.2d 843. While Love is a case where this court
reversed the death judgment due to erroneous admission of evidence “designed to
appeal to the passion of the jury” (id. at pp. 854–858), it is also a case whose
continuing validity has been called into question. In Brady, supra, 50 Cal.4th at p.
575, we noted that “Love predates the high court’s ruling in Payne v. Tennessee,
supra, 501 U.S. 808, and the enactment of section 190.3, both of which expressly
allow the jury to consider the circumstances of the crime — including its
immediate injurious impact.” Moreover, in the years since Love was decided, “we
have upheld the admission of [evidence] similar to [that] at issue” in the case. (Id.
at p. 575, fn. 13.) “Even assuming for argument that Love has not been overtaken
by subsequent judicial decisions concerning the admissibility of victim impact
evidence in capital trials, it has no bearing on the meaning of section 190.3, factor
(a) as presently written.” (People v. Seumanu (2015) 61 Cal.4th 1293, 1368
(Seumanu).)
       We conclude that the introduction of the challenged physical evidence,
expert testimony, and victim impact statements — considered individually and
cumulatively — was not error.




                                          48
G. Alleged Prosecutorial Misconduct
       According to Spencer, the prosecutor made numerous comments amounting
to misconduct during his penalty phase closing argument. To preserve such a
claim, however, Spencer must have made “ ‘a timely objection at trial and
request[ed] an admonition.’ ” (People v. Clark (2016) 63 Cal.4th 522, 577
(Clark).) Otherwise, his claim is reviewable “ ‘only if an admonition would not
have cured the harm caused by the misconduct.’ ” (Ibid.) Spencer’s claims thus
fail at the threshold since he did not object to the supposed improper comments at
trial and has advanced no persuasive reason why an objection or request for an
admonition would have been futile.
       While Spencer generically asserts that the harm was done the moment the
prosecutor “uttered his comments,” he supplies no plausible reason for why that is
the case. Spencer complains of multiple instances of misconduct, each supposedly
driven home by the prosecutor uttering multiple remarks on the theme, and yet
objected to none of them. Had he objected at the first instance of any improper
comment, the trial court could have instructed the prosecutor to abandon that line
of argument and issued specific disapproving directives to the jury. He did not,
and so cannot now be heard to complain. (E.g., Seumanu, supra, 61 Cal.4th at pp.
1340–1341 [listing numerous cases to show how well established is “the rule
requiring claims of prosecutorial misconduct be preserved for appellate review by
a timely and specific objection and request for admonition”].) (Contra People v.
Hill (1998) 17 Cal.4th 800, 821 (Hill) [excusing the defendant from the obligation
to “continually object” in the “unusual circumstances” when he was subjected to a
“constant barrage” of the prosecutor’s unethical conduct and the trial court not
only failed to rein in the excesses but sometimes contributed to it].)
       Were we to reach the merits of Spencer’s claims, we would find them
deficient. To prevail, Spencer must show “ ‘a reasonable likelihood the jury

                                         49
understood or applied the complained-of comments in an improper or erroneous
manner.’ ” (Dykes, supra, 46 Cal.4th at pp. 771–772.) This is not a low standard
to meet, since “ ‘we “do not lightly infer” that the jury drew the most damaging
rather than the least damaging meaning from the prosecutor’s statements.’ ” (Id.
at p. 772; Donnelly v. DeChristoforo (1974) 416 U.S. 637, 647.) Spencer
consistently ignores this point of law and asks us to adopt the most damaging —
and far-reaching — interpretation of the prosecutor’s comments to find that he
committed misconduct in the five areas discussed below.

   1. Mischaracterization of Jurors’ Oath
       Spencer first claims that the prosecution “mischaracterized the jurors’ oath
and argued that society demanded a death verdict.” To support his claim, Spencer
points to places in the closing argument where the prosecutor described the jury’s
verdict as reflecting some external norms, e.g. the “conscience of the community”
or society’s need for justice. He also highlights parts of the prosecutor’s argument
in which the prosecutor purportedly said that to vote for life without the possibility
of parole was to “take the easy way out.” Spencer argues that these comments
“diminish[ed] the jurors’ sense of personal, moral responsibility for the penalty
decision.” We disagree.
       Far from diminishing the jury’s sober responsibility at the penalty stage, the
prosecutor stated the correct standard jurors were to follow in deciding whether
Spencer should live or die. The prosecutor thus told the jury: “Your
responsibility as jurors is to weigh and consider all of the aggravating evidence, all
of the mitigating evidence, and make your determination based on a moral
evaluation.” Moreover, “[t]o return a judgment of death, you must be persuaded
that the aggravating circumstances are so substantial in comparison with the
mitigating evidence that it warrants death rather than life without parole.”


                                         50
Elsewhere the prosecution impressed upon the jury the weight and solemnity of its
decision, and the fact that each juror must participate in the moral weighing on
which Spencer’s life hung. A fair reading of the prosecution’s closing statement
persuades us that it did not misstate the law applicable at the penalty stage.
       Spencer’s argument to the contrary depends on singling out individual
comments, assigning the most damaging possible interpretation to them, and then
claiming — in contradiction of the record and case law — that these comments
amount to prosecutorial misconduct. For example, Spencer uses the prosecutor’s
comment that the jury’s verdict reflected the “conscience of this community” to
argue that it “told jurors that they were morally bound to return a death sentence.”
Yet Spencer’s trial counsel also told the jury that it was acting as “the conscience
of the community.” As the attorneys’ comments indicate and our precedent makes
clear, “[j]urors are the conscience of the community” and it is “not error to tell
them so in closing argument.” (People v. Gamache (2010) 48 Cal.4th 347, 389
[listing cases].) More generally, not every reference to the victim’s family — an
external institution — the “community,” or society at large constitutes an improper
attempt to dissuade the jurors from making a personal decision. (E.g., Zambrano,
supra, 41 Cal.4th at pp. 1177–1179.)
       Nor did the prosecution denigrate the jury’s “solemn responsibility” by
insisting that anything but a death sentence would be taking the easy way out.
Instead, the prosecutor urged jurors not to forgo the punishment for the wrong
reasons — because it would absolve them of the need to weigh the moral
blameworthiness of Spencer’s conduct. Such comments fall within the scope of
acceptable arguments advanced at the close of trial. (See, e.g., People v. Jones
(1997) 15 Cal.4th 119, 185 [“It was proper for the prosecutor to argue that
determining the appropriate punishment in a capital case is a difficult decision that
requires courage.”].)
                                          51
       In sum, we reject Spencer’s claim that the jurors were “browbeaten with the
message that they owed it to the victim’s family, to the prosecutor, to the legal
system, and to society to condemn Chris Spencer to death.”

   2. Appeal to Emotion
       Spencer next argues that the prosecution improperly appealed to the jurors’
emotion during the opening and closing arguments at the penalty phase. Much of
his argument replays the contention that the victim impact evidence given in this
case — previewed and recapped by the prosecution in its two statements — was
unduly prejudicial. To the extent the opening statement contains any content not
challenged elsewhere, we note that the prosecutor correctly stated the law when he
emphasized that emotion has a role in the jury’s deliberation during the penalty
phase. (Haskett, supra, 30 Cal.3d at p. 863.) Not much else is new, and there is
no basis for us to treat the issues differently here than how we resolved them in the
discussion of victim impact evidence and the prosecution’s closing argument.
       Nor do we need to revisit our prior cases permitting the People to argue
Spencer did not deserve mercy. Most of the prosecutor’s comments focused on
the effect of Madden’s murder on his family and encouraged the jury to empathize
with the victim and his survivors — all of which is permissible during the penalty
phase. (See, post, section II.G.3 [addressing the prosecutor’s appeal for the jury to
empathize with the victim and his family].) Where the prosecutor came close to
eliciting some sort of retribution — such as when he urged the jury to overcome
any reluctance it might have in handing down the death penalty by considering
how Spencer showed no such reluctance in “plung[ing]” a knife “again and again”
into Madden — still such exhortations are not categorically inappropriate. (E.g.
People v. Kennedy (2005) 36 Cal.4th 595, 636 [“We reject defendant’s additional
claim that the prosecution committed misconduct during its closing argument in


                                         52
telling the jury that defendant deserved no less punishment than what he inflicted
on the murder victim and that defendant did not show mercy or sympathy to the
victim. The argument is permissible under California law.”].) Where, as here, the
comments are brief, isolated, and “do not form the principal basis for advocating
the imposition of the death penalty,” they do not constitute misconduct. (E.g.,
Ghent, supra, 43 Cal.3d at p. 771.)

   3. Appeal to Empathy
       Along the same line as his argument about the jury being asked to withhold
its mercy, Spencer argues that it is “impermissible for an attorney to argue to
jurors that they should place themselves in the position of the victim in assessing
the sanction to be imposed against the defendant.” While Spencer claims that “[i]t
has long been held” that such an argument is improper, our precedent is to the
contrary. (E.g., Dykes, supra, 46 Cal.4th at pp. 793–794 [“it is not improper at
th[e] [penalty] phase of the trial for the prosecutor to ‘invite the jurors to put
themselves in the place of the victims and imagine their suffering’ ”]; Wash,
supra, 6 Cal.4th at pp. 263–264 [similar]; People v. Jackson (2009) 45 Cal.4th
662, 692 [“[t]he prosecutor did not commit misconduct by inviting the jurors to
put themselves in the shoes of the victim’s family”]; People v. Stitely (2005) 35
Cal.4th 514, 568 [“the prosecutor was free to ask penalty jurors to consider . . . the
unique pain that either the victims or their families experienced as a result of the
charged crimes”].)
       Ignoring this line of authorities, Spencer instead calls our attention to Loth
v. Truck-A-Way Corp. (1998) 60 Cal.App.4th 757. We fail to see how Loth is
relevant, considering that the case dealt with the proper method for assessing
money damages in a personal injury lawsuit. People v. Lopez (2008) 42 Cal.4th
960, is likewise unilluminating, since it was not a capital case involving a separate


                                           53
punishment proceeding. Here, Spencer is challenging the prosecutor’s closing
statement made at the end of the punishment phase, and as we have made clear,
“[a]lthough it is inappropriate at the guilt phase for a prosecutor to appeal to
sympathy by inviting the jury to view the case through the victim’s eyes [citation],
such appeals are entirely appropriate at the penalty phase.” (Winbush, supra, 2
Cal.5th at pp. 485–486.)

   4. Griffin Error
       Spencer also fails to persuade us that the prosecution improperly
commented on his silence, in contravention of the teaching of Griffin v. California
(1965) 380 U.S. 609. The prosecutor purportedly committed this error when he
argued that Spencer’s trial counsel “won’t be able to point to any remorse on the
part of his client for what he has done, because there is none here before you.”
Quoting from Spencer’s confession, the prosecutor continued, “No remorse, of
course, unless it’s in his statement where he speaks of himself: ‘What am I
looking at? How long am I going to have to serve? . . . Oh fuck. There went my
life.’ ” The prosecutor then asked rhetorically, “Anywhere in there does he say
that he’s sorry for what he’s done?”
       We do not perceive in such remarks an oblique reference to Spencer’s
decision to remain silent at trial. Instead, the prosecution’s emphasis is that there
is no evidence that Spencer has expressed remorse. The lack of remorse is
relevant, as its presence mitigates against the death penalty. (Wash, supra, 6
Cal.4th at p. 265 [“It is proper to argue that remorse is lacking as a circumstance in
mitigation.”]; Dykes, supra, 46 Cal.4th at pp. 798–799 [similar].) Moreover,
calling attention to the fact that “there was no evidence that [the] defendant had
ever expressed remorse” does not violate Griffin. (Zambrano, supra, 41 Cal.4th at
p. 1174 [“The prosecutor did not comment that defendant had failed to take the


                                          54
stand to express remorse; he simply said there was no evidence that defendant had
ever expressed remorse. We have consistently found such penalty phase argument
permissible under Griffin . . . .” (italics omitted)]; Brady, supra, 50 Cal.4th at p.
585 [similar].) In this case, the prosecutor simply stressed that, during his
confession, Spencer showed no sympathy to the victim and only expressed
concerns about what would happen to himself. We find no constitutional violation
in such remarks.

   5. Bengal Tiger Story
          Finally, Spencer claims that the prosecution dehumanized him by telling a
story in which he is analogized to a vicious animal. The story goes something like
this: two friends visit a zoo and see a Bengal tiger “lying in the sun,” “kind of fat
and relaxed and comfortable.” One friend said to the other: “That’s not a Bengal
tiger.” The two then fly to India, where, in the midst of the jungle, they encounter
a creature “fifteen feet long,” standing “over its kill,” with “blood dripping from
its mouth.” After the two friends made a narrow escape, they agreed that they
now have seen a Bengal tiger. The prosecutor explained the parable this way:
“The point of [the story] is this . . . . You’ve got Mr. Spencer in court. You’ve got
a photo of him here. . . . [But] [t]he only one that saw the Bengal tiger, the real
Bengal tiger, inside that man, Chris Spencer, was Jim Madden. In that setting that
night the tiger came out and that’s the result. The boy shown in the photograph is
not the tiger. The boy didn’t kill him. The defendant did, the man seated in
court.”
          Considered in context, the message conveyed by this aspect of the
prosecutor’s closing argument was not categorically different from passages we
have deemed acceptable in earlier capital cases. We have determined it was
acceptable, as an example, for the People to convey in closing that jurors should


                                          55
not be “misled by defendant’s benign and docile appearance at trial, but to
remember him as the murderer.” (People v. Duncan (1991) 53 Cal.3d 955, 976–
977.) Indeed, the Bengal tiger story has been told in California courtrooms before,
and we have more than once found no impropriety in its use. (Ibid.; Brady, supra,
50 Cal.4th at p. 585.) The People may comment on the evidence introduced to
convey the viciousness of Madden’s murder, including by using a story that could
be understood by some jurors to describe the murderer as a monster. (Zambrano,
supra, 41 Cal.4th at p. 1172 [“Argument may include opprobrious epithets
warranted by the evidence.”]; Farnam, supra, 28 Cal.4th at p. 168 [concluding
that the prosecutor’s descriptions of the defendant as “ ‘monstrous, ’ ” “ ‘cold-
blooded, ’ ” and a “ ‘predator’ ” were fair comment on the evidence].)
       So at the close of the penalty phase, the prosecutor has wide latitude and
may argue his case with rigor. (Dykes, supra, 46 Cal.4th at p. 768; Seumanu,
supra, 61 Cal.4th at p. 1331.) We conclude that the prosecutor here did not
exceed the relatively wide scope the law affords him.

H. Consideration of Graber Robbery During Penalty Phase
       Spencer contends that the trial court erred in its response to a question from
the jury regarding how an aspect of the jury instructions related to the jury’s
consideration of the robbery of Ben Graber at the Gavilan Bottle Shop. We find
otherwise.

   1. Background
       At the end of the penalty phase, the court instructed the jury on the
mitigating and aggravating elements that it may consider in deliberation.
Specifically, the court instructed the jury on the various factors laid out in section
190.3, including factors (a), (b), (j), and (k), the catchall factor. As laid out in the
court’s instructions, these are:


                                           56
       “(a) The circumstances of the crime which the defendant was
       convicted in the present proceeding and the existence of any special
       circumstance found to be true.
       “(b) The presence or absence of criminal activity by the defendant,
       other than the crimes for which the defendant has been tried in the
       present proceedings, which involved the use or attempted use of
       force . . . .
       “(j) Whether or not the defendant was an accomplice to the offense
       and his participation in the commission of the offense was relatively
       minor.
       “(k) Any other circumstance which extenuates the gravity of the
       crime even though it is not a legal excuse for the crime and any
       sympathetic or other aspect of the defendant’s character or record
       that the defendant offers as a basis for a sentence less than death,
       whether or not related to the offense for which he is on trial.”
       The court also instructed the jury that the robbery of Graber at the Gavilan
Bottle Shop is an aggravating circumstance that it may consider under factor (b).
The instruction was given over Spencer’s objection. Spencer argued that the
robbery of Graber does not fall under factor (b) because that robbery and
Madden’s murder were “indistinguishable.” As Spencer’s counsel stated, “what
we got here is a course of conduct over the space of about a week . . . based more
or less on the same motivation and culminating in the robbery and murder at
Leewards.” The prosecution disagreed, pointing out that although the robbery and
murder were “consolidated for purposes of this trial,” they were “two separate
crimes,” committed four days apart. The court sided with the prosecution.
       The jury then entered deliberation. Two days later, it sent a question to the
trial judge, asking “Does Factor (j) apply to Factor (b), the robbery of Ben Graber,
in regards to a mitigating factor, or does Factor (j) relate only to the robbery,
burglary and murder of James Madden?” The court consulted with counsel for
both sides, indicating that in its opinion, “Factor (j) only relates to the robbery,
burglary and murder of James Madden.” Spencer objected, with the substance of


                                           57
his lengthy objection being that, under factor (j), the jury can consider his limited
role in the robbery of Graber as a mitigating circumstance to the murder of
Madden. He acknowledged, however, that he understood why “the defense, don’t
have it coming to get strong endorsements from the bench.” After some delay, the
court instructed the jury that “[t]he Factor (j) only relates to the robbery, burglary
and murder of James Madden.” Three days later, the jury returned a verdict of
death.
         On appeal, Spencer argues that the court’s response to the jury’s question
constituted reversible error. He makes three independent arguments to support his
claim. First, he asserts that the robbery of Graber was factor (a) and not factor (b)
evidence. Second, he claims that, even if the robbery was factor (b) evidence, the
burglary may be considered as a mitigating circumstance under factor (j). Finally,
he says that even if the court’s answer was technically correct, it was misleading,
as the court should have instructed the jury that it could consider Spencer’s limited
participation in robbery of Graber as a mitigating circumstance under factor (k),
the catchall factor.

   2. Analysis
         Spencer’s claim on this issue is, at its core, a contention that the court
“misled the jury into believing that Appellant Spencer’s relative culpability in the
Gavilan Bottle Shop robbery was irrelevant.” We reject this contention.
         On appeal, whether the trial court erred in instructing the jury is determined
by examining “ ‘ “the entire record, including the instructions and arguments” ’ ”
to see if “ ‘ “the jury was misled to the prejudice of the defendant.” ’ ” (Dykes,
supra, 46 Cal.4th at p. 795.) The record persuades us that the trial court did not
mislead jurors into believing that the nature of Spencer’s participation in the
incident at the Gavilan Bottle Shop, in which he acted as the getaway driver and


                                            58
got $70 for his participation, was irrelevant. As part of its instructions before the
jury retired to deliberate, the court told jurors that they may consider “[a]ny other
circumstance which extenuates the gravity of the crime . . . and any sympathetic or
other aspect of the defendant’s character or record that the defendant offers as a
basis for a sentence less than death.” Spencer thus already got what he contends
was his due: an instruction that the jury should consider “any other circumstance”
— which includes Spencer’s limited participation in the robbery of Graber — as a
mitigating circumstance under factor (k), the catchall factor.
       Nothing the court conveyed in answering the jury’s question affected this
instruction. The jury asked the court about factor (j) — not factor (k) — and the
court gave a responsive answer as to factor (j). Contrary to what Spencer asserts,
the court was not required to reinstruct the jury as to other evidentiary limits,
including the wide-ranging scope of factor (k). (People v. Burton (1989) 48
Cal.3d 843, 866–867 [“The trial court responded to the jury’s question; it was not
required to do more.”].) The court’s answer itself could not have misled the jury
because the content of the response — strictly relating to factor (j) — posed no bar
to the jury’s ability to take into account mitigating circumstances under factor (k).
(See Burton, supra, 48 Cal.3d at p. 867 [concluding that “the jury could not have
been misled concerning the relevant scope of mitigating evidence” when the trial
court properly instructed it with regard to factor (k) prior to answering a question
that arose during deliberation].)
       In addition, Spencer is mistaken that the court’s characterization of the
Graber robbery as factor (b) evidence precluded the jury from considering his
“relative culpability” in that crime. Although the presence of criminal activity
other than the capital crime is an aggravating factor, how much the Graber robbery
aggravated the circumstances of Madden’s murder is an evaluation the jury was
free to make. The court specifically instructed the jury as such, stating that
                                          59
“[e]ach individual juror may weigh and consider each and all of the various factors
and circumstances on which relevant evidence has been offered in this case, being
free to assign whatever value he or she deems appropriate to each factor and
circumstance.” The jury thus could have considered the fact that Spencer “only”
acted as a getaway driver in deciding the weight to attach to this crime. Again,
Spencer got what he wanted from the court’s instruction: the jury indeed was able
to consider his “level of participation in the prior crime when assessing how much
weight to assign to the 190.3(b) evidence.”
       The court’s answer to the jury’s question did not do violence to this
instruction. The answer only informed jurors that they could not consider
Spencer’s participation in the robbery when debating whether Spencer’s
involvement in the murder was minor under factor (j). Pursuant to factor (j), the
jury considers “[w]hether or not the defendant[’s] . . . participation in the
commission of the offense was relatively minor.” (§ 190.3, subd. (j).) We agree
with the People that the singular reference to “the offense” in a statutory provision
governing the life or death decision in a capital crime refers only to the capital
crime. (See People v. Keenan (1988) 46 Cal.3d 478, 513, fn. 15 [characterizing
factor (j) as “minor participation in the capital offense”].) It does not refer to any
other offense, including a robbery committed four days earlier, targeted at a
different victim at a different location.
       Finally, the court correctly instructed the jury that the Graber robbery was
factor (b) evidence. We said as much in People v. Prince (2007) 40 Cal.4th 1179.
There, in the same proceeding where he was tried for murder, the defendant was
tried for multiple burglaries of homes belonging to persons other than the murder
victims. (Id. at p. 1188.) Citing the same authority as Spencer here principally
relies on, the defendant in Prince argued that “noncapital crimes of which a
defendant was convicted in the same proceeding [as the capital crimes] never may
                                            60
be considered at the penalty phase as evidence in aggravation under section 190.3,
factor (b).” (Id. at p. 1292.) We rejected the claim, finding that the robberies of
those who were not murder victims were admissible under factor (b) and did not
become otherwise merely “because of a joinder with capital offenses.” (Ibid.)
Moreover, although the burglaries of the homes of the murder victims and those
who escaped unharmed featured the same modus operandi (id. at pp. 1192–1193),
we had no trouble concluding that burglaries of homes not belonging to the
murder victims were factor (b) evidence in the penalty phase of the murders. We
come to the same conclusion here.

I. Completeness of Appellate Record

    1. Background
       In addition to his claims about errors committed by the trial court, Spencer
asserts that this court also erred by refusing to supplement his appellate record
with his codefendants’ trial transcripts. The argument hinges on comments that
the prosecution made in its closing statement in the penalty phase.6 The
prosecutor there highlighted the fact that Spencer — by his own confession — was
the first to stab Madden. In response to the various testimonies elicited by the
defense that Spencer was a follower, not the leader, and the emphasis on the same
theme during closing argument, the prosecutor stated, “remember, when he says
follows the lead there was no stabbing before Mr. Spencer started it. Under Mr.
Spencer’s version, in effect, John Travis and Danny Silveria followed his lead. He
led the stabbing.”




6       Spencer also mentions that certain materials from his codefendants’ trial,
e.g., prospective juror questionnaires, were reused at his trial. Such materials,
however, contribute nothing to Spencer’s claim (discussed below) that the
prosecution employed inconsistent theories in his trial and his codefendants’ trials.
                                         61
       Spencer’s trial counsel, James Mantell, objected. What he conveyed is that
he thought it was “not permissible” that the prosecution should try to reduce
Silveria and Travis “to the position of stooges for Chris Spencer.” In a sidebar,
Mantell argued that during Silveria and Travis’s trial, “they were the principals
and Mr. Spencer was absent.” “But more importantly,” said Mantell, “there is on
the record of this case evidence . . . which establishes very clearly the tertiary
position of Chris Spencer in the planning and plotting of this entire operation.”
The prosecutor riposted that he was referring to evidence on the record of this
case. The court dealt with the objection by directing counsel for both sides to
“stick . . . to what was brought out during the course of this trial.” Following this
instruction, the prosecutor argued to the jury: “Don’t speculate. Don’t guess. . . .
Look to the evidence. And I submit that you’re not going to find the evidence that
Mr. Mantell is talking about when he says that Chris Spencer was just following
the lead. Chris Spencer acted. He made choices and he is fully accountable
therefor. He admits finally being the initial stabber and then passing the five [sic]
on to others so that they could continue with the stabbing that he began.” Relying
on these comments, Spencer now claims that the prosecution used inconsistent
theories at his trial and his codefendants’ trials and so arguably violated his due
process rights.
       The nub of Spencer’s contention, however, is not about what happened at
trial, but rather what transpired afterwards. After current counsel was appointed to
represent Spencer on appeal, he petitioned this court for an order augmenting the
appellate record to include the transcripts of Silveria and Travis’s trial. We denied
the motion. Spencer argues that this was a prejudicial error requiring reversal,
with prejudice stemming from the fact that the fees to which his counsel is entitled
depend on the length of the record. Had we supplemented the record, counsel
could have obtained “up to an additional $30,000.” Without this money, counsel
                                          62
was “handicap[ped]” since “[w]hatever the quantum of work Spencer’s counsel
could perform, properly contemplated [sic] counsel could do more.” “This
deficit” of money, says counsel, “potentially affects each and every aspect of
Spencer’s case in the post conviction arena.” Spencer also contends that his
inconsistent theories claim must be raised on appeal, because had he “chosen to
pursue it via habeas corpus . . . the result would have been waiver of the issue”
under In re Dixon (1953) 41 Cal.2d 756 (Dixon). We find no merit in his
arguments.

   2. Analysis
       Under Spencer’s theory, whenever an appellate record omits any
information that a defendant claims should have been included, prejudice
necessarily ensues because counsel is handicapped by the lack of fees that “should
have been forthcoming.” Prejudice, as Spencer tells it, occurs “regardless of the
length of the missing record because any additional uncompensated work creates a
handicap relative to other counsel to that extent.”
       Spencer’s argument proves too much. Even taking the argument at face
value, we are unclear what “additional uncompensated work” counsel claims to
have done, since he does not assert that he reviewed the transcripts of Spencer’s
codefendants’ trial despite their not being included in the appellate record. We
also note that it is very much uncertain whether counsel would have received any
additional fees even if the record were supplemented in the manner he requested.
As Spencer concedes, his counsel was already being compensated at the highest
level under the fixed fee system. Additional fees thus would have been available
only “[i]n extraordinary and unique situations.” (Supreme Ct. of Cal., Guidelines
for Fixed Fee Appointments, on Optional Basis, to Automatic Appeals and
Related Habeas Corpus Proceeding in the Cal. Supreme Ct., guideline 3 [“In


                                         63
extraordinary and unique situations, the Court will entertain requests for additional
fees based on exceptional circumstances (e.g., circumstances that were
unforeseeable at the time of the appointment of counsel on a fixed fee basis). In
such situations, counsel shall have the burden of proof to justify any additional
fees.”].) We see no hints from counsel’s briefing that Spencer’s case presented
such “extraordinary,” “unique,” or “exceptional circumstances.” (Ibid.)
       In any event, we are not persuaded the appellate record here is inadequate.
A criminal defendant “bears the burden of demonstrating that the record is not
adequate to permit meaningful appellate review.” (People v. Young (2005) 34
Cal.4th 1149, 1170.) In this case, Spencer claims that the prosecutor argued
inconsistent and irreconcilable theories at his and his codefendants’ trials — an
issue he would have brought up on appeal had the record been augmented to
include materials from his codefendants’ trial. But our precedent makes clear that
such an inconsistent theories claim should be brought — not on appeal — but in a
habeas corpus petition. (People v. Sakarias (2000) 22 Cal.4th 596, 635 (Sakarias)
[“Where, as here, the asserted inconsistencies in prosecutorial theory were not the
subject of any proceeding in the trial court and, hence, neither the inconsistencies
nor any explanations the prosecutor may have been able to offer appear in the
appellate record, any due process claim defendant can state should be ‘presented
by petition for writ of habeas corpus rather than by appeal.’ ”]; People v.
Waidla (2000) 22 Cal.4th 690, 743–744 [same]; People v. Moore (2011) 51
Cal.4th 1104, 1143 [same].)
       Spencer attempts to undermine this conclusion by arguing that his trial
counsel objected during the prosecution’s closing statement, and so did make the
“asserted inconsistencies in prosecutorial theory” the subject of proceeding at trial.
(Sakarias, supra, 22 Cal.4th at p. 635.) The objection, however, centered on what
the evidence introduced in Spencer’s trial showed. While Spencer’s trial counsel
                                         64
alluded to what the prosecutor argued in Silveria and Travis’s trial, counsel agreed
that what mattered was the evidence “on the record of this case” and did not
otherwise seek to introduce the record of that separate trial into Spencer’s trial
proceeding. As the inconsistent theories claim was not litigated below, it cannot
be litigated on this direct appeal.
       Finally, since the claim properly belongs in a habeas petition, it is not
barred by Dixon’s “general rule” that a claim which “could have been” raised on
appeal cannot wait for habeas proceeding. (Dixon, supra, 41 Cal.2d at p. 759.)
Spencer may make his inconsistent theory claim on habeas corpus without fear of
a Dixon bar and suffers no prejudice because of his appellate record.

J. Constitutionality of California’s Death Penalty Statute
       Spencer asserts that several aspects of California’s death penalty statute
violate the United States Constitution. As Spencer concedes, we have previously
considered and rejected each of his claims. We decline his request to here
reconsider our prior conclusions and continue to hold that section 190.2, which
enumerates a number of special circumstances making a defendant eligible for the
death penalty, is not impermissibly broad. (People v. Wall (2017) 3 Cal.5th 1048,
1072.) Likewise, section 190.3, factor (a), in allowing the sentencer to consider
the “ ‘circumstances of the crime’ ” in a determination of whether to impose the
death penalty, is not unconstitutionally vague, arbitrary or capricious. (Clark,
supra, 63 Cal.4th at p. 643.) Nor do the California or federal Constitutions require
the prosecution to bear the burden of proof or persuasion at the penalty phase of a
capital trial, or compel the jury to find beyond a reasonable doubt matters such as
the veracity of aggravating factors. (Seumanu, supra, 61 Cal.4th at p. 1376.)
       Because capital defendants and noncapital defendants are not similarly
situated, California does not deny capital defendants equal protection by providing


                                          65
certain procedural protections to noncapital defendants but not to capital
defendants. (People v. Johnson (2016) 62 Cal.4th 600, 657 (Johnson).) In
particular, written findings by a jury recommending a death sentence are not
required. (People v. Salazar (2016) 63 Cal.4th 214, 256.)
       The absence of a requirement for the court to consider intercase
proportionality does not violate the federal Constitution. (Clark, supra, 63 Cal.4th
at p. 644.) Nor does the jury’s reliance on unadjudicated criminal activity as a
factor in aggravation under section 190.3, factor (b), without unanimously
agreeing on its existence beyond a reasonable doubt, deprive a defendant of any
rights guaranteed by the federal Constitution, including the Sixth Amendment
right to jury trial. (Clark, supra, 63 Cal.4th at p. 644.)
       The use of restrictive adjectives, such as “extreme” and “substantial” in
section 190.3’s list of potential mitigating factors, does not bar consideration of
constitutionally relevant evidence. (Simon, supra, 1 Cal.5th at p. 150.) There is
no constitutional requirement that the jury be instructed concerning which of the
sentencing factors are aggravating, which are mitigating, and which could be
either aggravating or mitigating. (Clark, supra, 63 Cal.4th at p. 644.)
International law does not render the death penalty unconstitutional as applied in
this state. (People v. Nguyen (2015) 61 Cal.4th 1015, 1092.) And Spencer
advances no other persuasive basis for us to find California’s capital sentencing
scheme unconstitutional as a whole. (Johnson, supra, 62 Cal.4th at pp. 657–658.)




                                           66
                               III. DISPOSITION
       Because we find no reversible error, we affirm the judgment in its entirety.


                                                                    CUÉLLAR, J.


WE CONCUR:


CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
HILL, J.*




*      Administrative Presiding Justice of the Court of Appeal, Fifth Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
                                        67
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Spencer
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S057242
Date Filed: July 12, 2018
__________________________________________________________________________________

Court: Superior
County: Santa Clara
Judge: Hugh F. Mullin III

__________________________________________________________________________________

Counsel:

Emry J. Allen, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief
Assistant Attorneys General, Alice B. Lustre and Arthur P. Beever, Deputy Attorneys General, for Plaintiff
and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Emry J. Allen
5050 Laguna Boulevard, Suite 112
Elk Grove, CA 95758
(916) 691-4118

Arthur P. Beever
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 510-3761
