Filed 9/17/18




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                           S043520
           v.                        )
                                     )
CARL DEVON POWELL,                   )
                                     )                      Sacramento County
           Defendant and Appellant.  )                     Super. Ct. No. 113126
____________________________________)



        A jury convicted defendant Carl Devon Powell of first degree murder,
robbery, and grand theft. It found that the murder occurred during the robbery and
that defendant personally used a firearm. It then returned a verdict of death.1 The
court imposed that sentence, as well as an aggregate determinate sentence of eight
years four months. This appeal is automatic. We affirm the death judgment.




1      Two codefendants, John and Terry Hodges, were tried with defendant, but
before a separate jury. At the end of the guilt phase, the Hodges brothers were
granted mistrials because the prosecutor, in his opening statement, informed their
jury of testimony he anticipated from defendant that incriminated them.
Defendant, however ultimately exercised his constitutional right not to testify. All
references to defendant are to Mr. Powell.


                                         1
                                     I. FACTS
       A. Guilt Phase
       Keith McDade and his wife Colleen owned and managed a Kentucky Fried
Chicken (KFC) franchise in Sacramento. Between 10:30 and 11:00 on the night of
January 19, 1992, Keith left the building with a box of chicken and the day’s
receipts. While sitting in his parked car, he was shot in the head at point-blank
range. A KFC box and a bank bag were later found by the roadside two or three
miles away. The bank bag had been cut open. Inside were a deposit slip, a
personal check of the McDades, and some KFC gift certificates.
       Defendant, an 18-year-old former employee, was soon arrested. His
fingerprints were lifted from the recovered chicken box and gift certificates. He
gave several versions of the killing. First, he claimed he waited in a car while
someone else robbed and killed McDade. Next, he said he shot McDade, but the
gun went off accidentally after McDade threatened to have him killed. Then, he
admitted he shot intentionally, but only because he was frightened by McDade’s
threats. Finally, after identifying Terry and John Hodges as his accomplices, he
said the brothers had insisted he kill McDade to eliminate him as a witness. This
last version was consistent with the testimony of Daryl Leisey, an acquaintance of
Terry Hodges. Terry told Leisey that “the other guy” had been taking too long, so
Terry had to tell him to “get it over with” and “just whack the motherfucker.”
Terry wanted no witnesses. The shooter was a “wimp” who had “no heart,” so
Terry had to “jack him up.” Eric Banks, a cellmate of John Hodges, gave similar
testimony. John told Banks that defendant had not wanted to kill anyone, but John
ordered him to kill McDade so he could not identify them.
       On a car trip from Stockton to Sacramento, defendant confessed his role in
the crimes to Angela Littlejohn, the mother of a friend. He said McDade had
threatened him and “had it coming.” When Littlejohn learned that defendant had
                                          2
the murder weapon with him, she demanded he give it to her. She was afraid he
might use it against her or get her son into trouble with it. Defendant surrendered
the weapon, but later asked Littlejohn to return it. She refused and eventually
threw it in a dumpster. Officers retrieved the weapon. The bullet recovered
during the autopsy was damaged, but bore markings consistent with the barrel of
the recovered gun.
       Eight to nine months before the murder, the McDades had discovered that
three of their franchise’s daily deposits were not reflected on their bank records.
The amounts were about $800, $1,500, and $2,000. Defendant had worked on the
days these deposits were to be made. The McDades told all their employees they
would hire an investigator unless the money was returned. The next day,
defendant called and said he had to leave town. They told him he had to complete
his schedule for the week or lose his job, as was their policy. Defendant did not
come to work. After he left his job, he spoke to another KFC employee about
robbing the restaurant. Later in the summer, he began asking for his job back.
They did not want to rehire him, given the circumstances of his departure. During
his police interview, defendant admitted to three thefts from the business in the
amounts of $1,600, $2,200, and either $800 or $1,100.
       B. Penalty Phase
       Widow Colleen McDade testified that she and Keith had a good
relationship with defendant. They tried to help him, and he would talk to them
about personal problems at school or with girls. He played with their children at
the store. They would give him bus money if he needed an advance on his
paycheck. Initially he was a good worker, but his performance declined. He came
in late and missed shifts, then the thefts occurred. Colleen recounted the impact of
Keith’s murder on her and their children. Her mother gave similar testimony.


                                          3
       Witnesses described previous assaults in which defendant participated,
several of them gang-related. A detective testified that in late 1991 defendant was
known as a “main player” in the Freeport Crips gang.
       In mitigation, the defense presented testimony from defendant’s mother,
brothers, and a family friend about his upbringing in a South Central Los Angeles
neighborhood rife with gangs and drugs. His father left the family when defendant
was one or two years old. His mother struggled to raise six children, sometimes
working two jobs. Defendant participated regularly in church activities. When he
was 16, his family wanted him to get out of the neighborhood, so they sent him to
live with his brother in Sacramento. He attended high school there and helped
care for his brother’s children. He liked his job at KFC, but had difficulty with
school.
       His family did not know defendant belonged to a gang. His relatives
acknowledged the pain caused by the murder and expressed their sympathy. An
expert testified about the social structure of gangs and how older members
manipulate those younger and less sophisticated. A psychologist testified that
defendant’s intelligence quotient was in the fourth percentile, bordering on
intellectual disability. On a personality test, he scored high for paranoia, deviant
thought patterns, anxiety, and introversion. He was incapable of complex
planning but susceptible to manipulation. Jail officers testified that defendant was
a trustworthy inmate worker.
                                 II. DISCUSSION
       A. Pretrial Issues

           1. Use of Dual Juries
       Early in pretrial proceedings, Terry Hodges moved for a severance,
anticipating that defendant’s statements to the police would implicate the Hodges


                                          4
brothers. He argued admission of defendant’s hearsay statements would deprive
them of the opportunity to confront him as a witness. (See Bruton v. United States
(1968) 391 U.S. 123, 126; People v. Aranda (1965) 63 Cal.2d 518, 524.) The
severance motion was granted, but the court considered whether to hold separate
trials or one trial with separate juries.
       The prosecutor requested dual juries. At the first court hearing, defendant’s
counsel said defendant would testify in the prosecution’s case-in-chief that the
Hodges brothers had forced him to commit the killing. This unusual defense
strategy was to have a transformative impact on the trial. The court pointed out
that there could be no assurance defendant would actually waive his privilege
against self-incrimination and take the stand. The prosecutor said defense counsel
“seems pretty firm that his client is going to testify,” and defense counsel
confirmed that intent. At the next hearing, the court observed that if defendant
testified, the need for either a severance or dual juries would be eliminated.
However, the prosecutor and defense counsel agreed that no one could know for
certain whether defendant would take the stand when the time came.
Nevertheless, defendant’s counsel repeated his expectation that his client would do
so, and the prosecutor maintained his request for separate juries. Defendant’s
counsel concurred with that preference, noting he had not joined in Terry
Hodges’s severance motion. Counsel for John Hodges stated a preference for
separate trials.
       At a later hearing on the admissibility of statements made by the Hodges
brothers, John’s counsel emphasized the conflicting interests among the
defendants. Defendant’s counsel responded that antagonistic defenses were not
necessarily a ground for severance and contended the Hodges brothers were




                                            5
attempting to “escape, basically, from a joint trial.” He conceded that on certain
issues, his position was closer to the prosecutor’s than to the Hodges brothers’.2
Counsel adhered to his promise that defendant would testify and also to his
preference for a joint trial. Subsequently, the prosecutor mentioned the possibility
of trying defendant with one of the brothers and conducting a separate trial for the
remaining brother. Defendant’s two lawyers said their first choice was for one
jury. Otherwise, they preferred a single trial with separate juries. The prosecutor
finally opted for dual juries. Defendant’s counsel said, “Sounds reasonable to
me.” The court chose that procedure.
       The prosecutor’s opening statement was given to both juries. Ultimately,
despite his counsel’s repeated assurances, defendant elected not to testify. He now
contends the court erred by employing two juries. He recognizes that dual juries
are an accepted means of honoring the statutory presumption favoring joint trials.
(Pen. Code, § 1098;3 People v. Jackson (1996) 13 Cal.4th 1164, 1207-1208
(Jackson); People v. Harris (1989) 47 Cal.3d 1047, 1075.) Nonetheless, he
contends he was prejudiced by the prosecutor’s opening statement, which related
defendant’s expected testimony that the Hodges brothers had coerced him into
shooting McDade. Defendant urges that the jury would have drawn a negative
inference against him when no such testimony was forthcoming. He also argues
he was prejudiced by the brothers’ antagonistic defenses, their attacks on the
credibility of Leisey and Banks, and their disappearance after mistrials were


2      Both the prosecution and defendant’s counsel wanted defendant’s
testimony against the Hodges brothers. The defense sought to shift blame to them.
The prosecutor acknowledged that if defendant did not testify, the case against the
brothers would rest on the testimony of Daryl Leisey and Eric Banks, both of
whom had credibility problems.
3      Further undesignated statutory references are to the Penal Code.


                                          6
declared upon his refusal to testify. He further complains of the logistical
difficulties posed by having two juries in a courtroom designed for one and the
likelihood that his jury speculated about the evidence it did not hear when excused
from the courtroom.4
       The Attorney General contends defendant has forfeited these claims by
failing to object below and, indeed, invited any error by endorsing the idea of dual
juries. We agree. Defendant’s counsel repeatedly made it plain that they wanted
to go to trial with the Hodges brothers. If one jury were not possible, counsel
consistently favored two. Given this oft-stated tactical preference, defendant is in
no position to claim error. (People v. Coffman and Marlow (2004) 34 Cal.4th 1,
49.) He asserts his counsel’s objection to a severance encompassed the dual jury
question. The argument fails. Counsel steadfastly opposed the idea of separate
trials, but never objected to dual juries. To the contrary, they affirmatively
expressed their approval of the procedure on a number of occasions.
       In any event, defendant fails to demonstrate error in the use of two juries.
“Whether the court abused its discretion by denying complete severance and
impaneling separate juries is decided on the basis of the facts known at the time of
the ruling on the severance motion.” (People v. Cummings (1993) 4 Cal.4th 1233,
1287 (Cummings).) Defendant concedes that when the trial court made its ruling,
dual juries were a proper option. He cannot show, based on subsequent events,
any “identifiable prejudice or ‘gross unfairness [that deprived him] of a fair trial or
due process of law.’ ” (Ibid.) His primary ground for asserting prejudice arises

4       Defendant asserts violations of his right to a fair trial under the Fourteenth
Amendment, his right to remain silent under the Fifth Amendment, his rights to
trial by jury and effective assistance of counsel under the Sixth Amendment, and
his right to a reliable guilt and penalty determination under the Eighth
Amendment.


                                           7
from his own decision not to testify, which disrupted the trial strategy of his
defense team. As discussed more fully below, no cognizable prejudice or
unfairness resulted from defendant’s exercise of his privilege not to testify.
       His remaining arguments fail as well. Claims of antagonistic defenses and
attempts by codefense counsel to discredit witnesses are insufficient. (Jackson,
supra, 13 Cal.4th at pp. 1208-1209; see People v. Letner and Tobin (2010) 50
Cal.4th 99, 150, 153.) As to the Hodges brothers’ absence after their mistrials, the
trial court instructed the jury not to speculate about their status and to decide
defendant’s case based solely on the evidence about him. Logistical difficulties,
and the potential for jury speculation about evidence received in its absence, are
not necessarily an impediment to the use of dual juries. (People v. Harris, supra,
47 Cal.3d at pp. 1071-1072.) Defendant’s description of the inconveniences
caused by having two juries falls well short of establishing identifiable prejudice
or gross unfairness. (Cummings, supra, 4 Cal.4th at p. 1287.)

           2. Refusal To Exclude Jurors for Cause
       The juries for defendant and the Hodges brothers were selected separately.
Defendant contends the court erroneously failed to exclude two of his jurors for
cause, requiring the defense to use peremptory challenges to remove them.5 The
defense eventually exhausted its peremptory challenges but expressed no
dissatisfaction with the jury as empaneled. The Attorney General urges this
failure to protest forfeited any claim of error. (See People v. Crittenden (1994) 9
Cal.4th 83, 121, fn. 4.) Defendant correctly notes we have not required expressed

5      He claims violations of his rights to a fair trial under the Sixth Amendment
and article I, section 16 of the California Constitution; to due process under the
Fifth and Fourteenth Amendments and article I, sections 7 and 15 of the California
Constitution; and to a fair and reliable penalty determination under the Eighth and
Fourteenth Amendments and article I, section 17 of the California Constitution.


                                           8
dissatisfaction when, as here, the trial took place before our decision in Crittenden.
(People v. Wallace (2008) 44 Cal.4th 1032, 1055 (Wallace); People v. Boyette
(2002) 29 Cal.4th 381, 416.)
       We need not examine the merits of defendant’s claim because he cannot
establish prejudice. He argues that if he had not been required to use peremptory
challenges on two prospective jurors, he could then have struck Juror Nos. 1 and
5. He now claims both of these jurors were constitutionally inadequate. The
argument is not sustainable. The defense challenged neither juror for cause.
Subsequently, with peremptory challenges still available, defendant’s counsel
twice expressed their willingness to accept panels including Juror Nos. 1 and 5.
Accordingly, defendant cannot now claim he was forced to keep these jurors.

           3. Defendant’s Absence from Certain Proceedings
       Defendant claims his absence from certain pretrial proceedings violated his
rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal
Constitution and article I, section 15 of the California Constitution. Defendant
fails to demonstrate prejudice.
       “ ‘Under the Sixth Amendment’s confrontation clause, a criminal defendant
does not have a right to be personally present at a particular proceeding unless his
appearance is necessary to prevent “interference with [his] opportunity for
effective cross-examination.” ’ [Citation.] [¶] ‘Similarly, under the Fourteenth
Amendment’s due process clause, a criminal defendant does not have a right to be
personally present at a particular proceeding unless he finds himself at a “stage . . .
that is critical to [the] outcome” and “his presence would contribute to the fairness
of the procedure.” ’ ” (People v. Cole (2004) 33 Cal.4th 1158, 1231 (Cole); see
People v. Castaneda (2011) 51 Cal.4th 1292, 1317-1318.) “ ‘The state
constitutional right to be present at trial is generally coextensive with the federal


                                           9
due process right.’ ” (People v. Butler (2009) 46 Cal.4th 847, 861.) “Under
article I, section 15 of the California Constitution, ‘a criminal defendant does not
have a right to be personally present “either in chambers or at bench discussions
that occur outside of the jury’s presence on questions of law or other matters as to
which [his] presence does not bear a ‘ “ ‘reasonably substantial relation to the
fullness of his opportunity to defend against the charge.’ ” ’ ” ’ ” (Cole, at p.
1231; see Castaneda, at p. 1318.)6 “Erroneous exclusion of the defendant is not
structural error that is reversible per se, but trial error that is reversible only if the
defendant proves prejudice.” (People v. Perry (2006) 38 Cal.4th 302, 312; see
People v. Delgado (2017) 2 Cal.5th 544, 569, fn. 14 (Delgado).)
       Defendant complains he was absent from several proceedings when the
court and counsel discussed whether he would testify, the substance of his possible
testimony, and whether the prosecutor would mention his anticipated testimony in
opening statements. As set out below, however, defendant was present for
numerous other hearings at which these subjects were thoroughly covered.
Moreover, the court directly advised him that the decision was his alone and made
sure he understood its consequences. Any possible error was harmless beyond a
reasonable doubt.
       Defendant was absent from a chambers hearing on April 18, 1994, when
the court and counsel discussed the theory of his defense and its impact on
whether dual juries would be required. At that hearing, his counsel disclosed that

6      Defendant develops no distinct arguments under the Fifth, Sixth, or Eighth
Amendments. He mentions his statutory right to be present under sections 977
and 1043, but makes no explicit argument for statutory error. In any event, for the
reasons we discuss in connection with his constitutional arguments, it is not
reasonably probable that he would have obtained a more favorable result at either
phase of trial had his statutory rights been strictly observed. (See People v.
Weaver (2001) 26 Cal.4th 876, 968.)


                                            10
defendant was prepared to testify for the prosecution that the Hodges brothers had
coerced him to shoot McDade. However, on the afternoon of the same day,
defendant was present when the court explained that if he did in fact testify, there
would be no need for dual juries because he would be subject to cross-
examination. Only if he decided not to testify would separate juries be required.
(See Bruton v. United States, supra, 391 U.S. at p. 126; People v. Aranda, supra,
63 Cal.2d at p. 524.) In defendant’s presence, it was made abundantly plain that
no one could be sure whether he would testify until he actually took the stand. His
counsel agreed, adding that while defendant was expected to testify, he could
change his mind.
       Defendant was absent from a portion of an April 19 discussion about
whether to hold a conditional examination to determine the substance of his
testimony. This option was not pursued. Defendant was present the next day
when his counsel outlined strategies for preserving the Hodges brothers’
confrontation rights. Counsel said, “We are willing to go forward with any
procedure that the Court can fashion to guarantee that the codefendants have an
effective right to cross-examine.”
       Defendant was present on May 3 when his possible testimony was
discussed again. The court mentioned the potential for conflicts between his
anticipated testimony and his statements to the police. His counsel again made it
clear that an “ironclad guarantee” of defendant’s testimony was impossible and
mentioned that the prosecutor might have to redact his opening statement to avoid
exposing the jurors to evidence that might not be presented. Defendant was
present on May 9 when his possible testimony and its effect on the dual jury
question were yet again subjects of discussion. On May 17, in defendant’s
absence, the court and his counsel considered whether the possibility that
defendant might not testify should be mentioned during jury selection. One of his
                                         11
lawyers initially resisted the notion, expressing confidence that defendant would
testify. However, after consulting with cocounsel, he changed his mind and asked
the court to address the question.
       On the morning of July 6, defendant was evidently present for an extensive
discussion of the order of proof in the event he did not testify.7 During that
discussion, the court and all counsel explored at length the issues that might arise
from the prosecutor’s inclusion of defendant’s expected testimony in his opening
statement. At the end of the hearing, counsel for Terry Hodges moved to preclude
the prosecutor from mentioning the subject. After a recess, and in defendant’s
absence, there was further consideration of the topic. The court declined to bar the
prosecutor from bringing up defendant’s expected testimony. It acknowledged
that the Hodges brothers might be entitled to mistrials if the prosecutor went into
the subject and defendant then decided not to take the stand. It ordered
defendant’s counsel to disclose to them any consideration defendant may have
received from the prosecution in exchange for his testimony. Counsel and the
prosecutor insisted that no such consideration had been offered or received.
       On July 11, defendant was absent when the prosecutor briefly indicated that
his opening statement would include defendant’s expected testimony and his
conflicting statements to the police. The following day, however, defendant was
present when these subjects were discussed at length. The prosecutor made clear
his opening statement plans. Moreover, at this hearing the court questioned all the
defendants to make sure they understood their constitutional right not to testify,

7      The clerk’s transcript states that all defendants were present with counsel.
The reporter’s transcript does not reflect defendant’s presence in the opening
summary of attendance at this hearing, but the court stated that “everyone” was
present, except for one of defendant’s attorneys and one of John Hodges’s
attorneys. Ordinarily, the court noted on the record if the defendants were absent.


                                         12
telling them that “when the case is over that will have been your decision and not
simply because your attorney told you not to or made you testify.” Defendant said
he understood. The court told all defendants that if they did not testify, the jury
would be told not to consider their refusal as a factor in its deliberations. The
court commented that “no counsel, no one in the world . . . can understand and
know that a defendant — any defendant — in any actual case is going to testify.”
       This review of the proceedings shows that defendant had ample
opportunity, early and often, to participate in the preparation and discussion of his
defense during pretrial hearings. He knew the prosecutor’s opening statement
would include the substance of his anticipated testimony and fully understood the
consequences of his decision whether to testify. No significant subject was
discussed in his absence that was not thoroughly covered in his presence.
Accordingly, defendant cannot demonstrate prejudice on this record. (See
Delgado, supra, 2 Cal.5th at p. 569 [exclusion from in-chambers conference
harmless]; People v. Thompson (2016) 1 Cal.5th 1043, 1098 [same as to ex parte
hearings].)
       B. Guilt Phase Issues

              1. The Prosecutor’s Opening Statement
       In opening statement, the prosecutor said “it is my understanding that Carl
Powell is going to testify.” Defendant would testify that he and the Hodges
brothers discussed robbing the KFC. When they went there on the day of the
murder, defendant learned that “they’re hiring again.” Later, “they went back . . .
Keith [McDade] was just leaving, locking the door. They pulled into a parking
carport . . . next door and in back.”
       The prosecutor continued: “Carl got out and went to talk to Keith. Carl left
the gun in the car. It was fully loaded. Carl talked to Keith 10 to 15 minutes.


                                          13
Keith said: ‘Talk to me Monday about getting . . . your job back.’ Terry and John
[Hodges] then came walking up. Carl did not have the gun. Terry and John now
started talking about robbing Keith McDade. Terry and John were going to take
the money. John had a two-shot derringer with him, and Terry had a short shotgun
. . . . John said, ‘We’re going to take the money.’ Keith was just sitting there.
John had the derringer out. Terry reached into the car and got the money. Or
Keith handed Terry the money. Carl . . . does not remember which, according to
his proposed testimony. John handed Carl his gun. Carl Powell could tell there
was only one round in it based on its weight. Carl started to point the gun at John.
Terry drew down on Carl with a shotgun. Terry said, ‘don’t even think about it.’
Carl knew he had only one bullet. John put the derringer to Carl’s chest, said, ‘We
ain’t leaving no witnesses.’ Carl said there was nothing he could do; Carl pointed
the gun at Keith and pulled the trigger.” The prosecutor then related defendant’s
expected testimony about the getaway, during which defendant cut open the bank
bag and threw some papers from the car.
       Defendant ultimately declined to testify in either the prosecution’s case or
his own. After the defense rested, the Hodges brothers were granted mistrials.
Defendant also sought a mistrial. He argued that the prosecutor’s opening
statement amounted to a comment on his failure to testify in violation of Griffin v.
California (1965) 380 U.S. 609 (Griffin). The court pointed out that the defense
had never objected to the prosecutor’s comments and, in fact, had “orchestrated
this thing to the point of having the D.A. do your bidding and make a
representation of what Carl Powell would testify to.” Counsel were well aware
that defendant could change his mind. Nevertheless, they “elected not to object to
the D.A. putting that in front of the jury.” The court denied the motion for a
mistrial, finding that “whatever error was committed was invited,” and its effect
could be mitigated by a proper admonition to the jury.
                                         14
       The court gave the usual jury instructions that statements by counsel are not
evidence, and a defendant’s failure to testify is not to be considered during
deliberations. It also gave a specially tailored instruction, approved by
defendant’s counsel, that “any references in the prosecutor’s opening statement
concerning the expected content of the testimony of the defendant is to be
disregarded and not enter into your deliberations in any way. The fact that the
defendant elected to exercise his right not to testify may not in any way be held
against the defendant nor affect your verdict.”
       Defendant contends the prosecutor’s “false promise” of his testimony
invited the jury to draw an adverse inference from his silence and amounted to
Griffin error. He also claims prosecutorial misconduct and violation of his rights
to due process and a fair trial.8 In a supplemental brief, defendant additionally
argues the trial court erred by allowing the prosecutor to mention defendant’s
potential testimony during opening statements. These arguments lack merit. As
the trial court ruled, any error was invited by the defense’s calculated strategy to
have defendant testify during the prosecutor’s case-in-chief. (People v. Coffman
and Marlow, supra, 34 Cal.4th at p. 49.) In any event, the prosecutor made no
comment on defendant’s failure to testify. He adopted the defense’s
representation of the expected testimony. That choice cannot be deemed
misconduct or court error in light of defense counsel’s repeated assurances that
their client intended to take the stand and their decision not to object to the
opening statement.
       Nor can defendant claim he was denied a fair trial because he elected to
ignore his counsel’s advice. The implications of the defense strategy were

8      Defendant cites the Fifth, Sixth, and Fourteenth Amendments and article I,
sections 7 and 15 of the California Constitution.


                                          15
thoroughly explored pretrial in his presence. (See pt. II.A.3, ante, pp. 9-13.) He
knew that his lawyers expected him to testify and that the prosecutor would
present that expected testimony to the jury. Indeed, the only reason the prosecutor
had that information was because the defense revealed it to him as a matter of
tactics. Defendant also knew all along that the final decision whether to take the
stand was his alone. He understood the consequences of that choice. During trial,
at a hearing on a request by defendant for new counsel, the court told him that if
he elected not to testify, the jury would decide the case based on the evidence that
was presented. It advised him that his failure to testify would not be a ground for
mistrial. (See pt. II.B.3, post, pp. 24-25.) Defendant’s fully informed decision to
remain silent cannot be transmuted into prosecutorial misconduct or court error.
       Defendant claims the jury would have inferred that he did not testify
because his statements implicating the Hodges brothers were false. We disagree.
The jury was specifically instructed not to give any consideration to defendant’s
exercise of his right not to testify. In any event, there is no reason to believe jurors
would surmise that defendant decided not to take the stand to avoid giving false
testimony. We note that his anticipated testimony was already questionable
because it conflicted with the various versions of the shooting he had given to the
police and Littlejohn.
       Defendant relies on Ouber v. Guarino (1st Cir. 2002) 293 F.3d 19. There, a
habeas corpus petitioner claimed her counsel was ineffective for promising in
opening statement that she would testify but later deciding not to call her as a
witness. It appeared the petitioner wanted to testify, but counsel persuaded her
otherwise. (Id. at pp. 22-24.) Ouber, of course, is not binding precedent. (People
v. Collins (2010) 49 Cal.4th 175, 233; People v. Williams (1997) 16 Cal.4th 153,
190.) It is also not on point. Defendant makes no claim of ineffective assistance,
and it was he alone who decided not to testify. Nor does he claim his decision was
                                          16
uninformed. (Cf. Ouber, at p. 31.) The Ouber court affirmed a grant of relief,
finding that “counsel’s belated decision not to present the petitioner’s testimony
sabotaged the bulk of his efforts prior to that time (and, in the process, undermined
his own standing with the jury, thereby further diminishing the petitioner’s
chances of success).” (Id. at p. 34.) No such error occurred here. Defense
counsel did not belatedly change plans. It was defendant who chose to abandon
their strategy.
       Defendant also relies on Lockett v. Ohio (1978) 438 U.S. 586 (Lockett),
claiming it shows that Griffin error can arise from the unfulfilled promise of a
defendant’s testimony. He misreads the case. There, the defense argued that “the
prosecutor’s repeated references in his closing remarks to the State’s evidence as
‘unrefuted’ and ‘uncontradicted’ constituted a comment on her failure to testify
and violated her Fifth and Fourteenth Amendment rights. See Griffin[, supra,]
380 U.S. [at p.] 615.” (Id. at pp. 594-595.) The court disagreed, reasoning that
“Lockett’s own counsel had clearly focused the jury’s attention on her silence,
first, by outlining her contemplated defense in his opening statement and, second,
by stating to the court and jury near the close of the case, that Lockett would be
the ‘next witness.’ When viewed against this background, it seems clear that the
prosecutor’s closing remarks added nothing to the impression that had already
been created by Lockett’s refusal to testify after the jury had been promised a
defense by her lawyer and told that Lockett would take the stand.” (Id. at p. 595.)
       Lockett cuts strongly against defendant’s position. Like defendant, Lockett
refused to testify in a capital case against counsel’s advice after the jury was told
what the defense would be and that she would take the stand. (Lockett, supra, 438
U.S. at pp. 589, 592-593.) The claim of Griffin error was summarily rejected, and
the court found no fundamental unfairness in the unexpected absence of Lockett’s


                                          17
testimony. In sum, defendant cannot show prosecutorial misconduct or court error
on this record.

           2. Removal of a Juror for Cause
       On a Monday morning, during a break in guilt phase testimony, the court
informed counsel that it had received a phone message from a juror who said she
had not been able to sleep for five days and needed counseling. The same juror
had earlier expressed fear to the court attendant about the defendants looking at
her and some concern over questioning by counsel. The court brought the juror in
and asked if she was requesting to be excused or seeking some other
accommodation. She replied, “there’s some facts of the case that relate really
closely to some personal things that have happened to me, so I feel very — I need
somebody to talk to, and I don’t know who to talk to.”
       The court asked if the situation was affecting her ability to be impartial.
The juror replied, “not necessarily. But it’s just — it’s gotten me to the point of
— because I started losing sleep the weekend before, so it’s been — it’s been all
week. And from my past experience when I get like that, I start exploding.”
Asked if she had mentioned her past experiences in the jury selection process, the
juror said, “no. They’re just unresolved issues.” Asked to elaborate, she said,
“well, I have had other instances where I — for example, about five years ago or
so, I started receiving harassing phone calls at home and — I never knew who it
was or anything. But it started on Friday night, and they continued all
weekend. . . . Luckily, my parents were there. . . . My dad picked up the phone,
and the guy just insisted that he had to talk to me. He had to talk to me. Well, I
was afraid for my life.” The police and the phone company were unable to do
anything because it was a Friday, so the juror unplugged the phone and went out
of town. But she “left the answering machine on, and the guy fills up a tape with


                                         18
obscenities. It was pretty bad; it was a very frightening experience. And it — it
caused me to — it caused me to do all kinds of things that I don’t normally do.”
       The calls stopped after the juror changed her phone number. The police or
the phone company told her it was probably a random incident. The court asked if
any other past experience was causing her distress. She said, “well, I did have an
episode again, and I’m having trouble — 1992, when I injured my back, was also
— resembled something.” She told the court she had never received counseling
and would like to get it now. The court inquired what it was about the case that
was evoking these past experiences. The juror said, “I find myself identifying
with all of the parties and feeling sympathy for everybody.” Asked what she
meant by “everybody,” she answered, “as each issue is brought up, I identify it
with myself. But I think that’s just because of the sleep deprivation.”
       Counsel also questioned the juror. She told defense counsel that it would
help if there could be a break in the proceedings “when things get really intense.”
The court asked if she could continue to participate if the normal schedule were
followed. She replied, “the reason I called yesterday is because I felt like I had
come to the end, like to the end of my rope. And I need somebody to talk to.”
Counsel asked how she was feeling presently. She said, “I feel okay. I took some
sleep medication last night.” She admitted she was “very tired.” Counsel said he
would like her to continue on the jury. She said, “that’s what my supervisor told
me, that I have a lot of time invested in this. And I should make this the main
focus.” Asked if she thought she could regain her composure and continue to
serve, the juror said, “well, in my line of work, I deal with issues as they come in.
Situations, if there’s an explosive situation, I handle it. But when I’ve lost sleep,




                                          19
I’m unable to handle it. And so the reason I talk to my supervisor is I don’t want a
relapse.”9
       The juror told the prosecutor that she found herself identifying with the
defendants. She explained, “well, I put myself in their shoes. I — it’s just — it’s
a very — it’s very confusing . . . . On Wednesday, I became very confused and
very frightened.” The prosecutor asked in what way she was confused. She said,
“um, I guess it was the pressure. . . . I just became frightened. . . . I was
frightened of the defendants sitting over there, just because they were looking at
me. And then later, it dawned on me, that’s not what I’m frightened of; I’m
frightened of the situation.” She explained, “like I said, I closely identified —I
was identifying with the witness.” The prosecutor asked if it was because Daryl
Leisey said he had been threatened. The juror said, “yes. And because of what
I’ve gone through.” Asked if she could be impartial, the juror affirmed that “I’m a
fair and impartial person.” The prosecutor inquired whether she could be fair
when she was putting herself in the defendants’ shoes. She answered, “well,
remember, though, I started losing sleep last weekend, and then — and then I
wasn’t able to sleep at all. So I get confused when that happens.” She said she
was not confused at present, “just a little upset is all.”
       The juror said she was not currently afraid of the defendants. She felt she
could continue “if I can resolve these personal issues . . . and if I have somebody
to talk to.” She did not have anyone to talk to, however, and agreed that her issues
might not be resolved if she could not discuss them with someone. In that case, “it
would frighten me more and more. And because I would continue to lose sleep.
And I get to the point where I — when this happens to me.” The prosecutor


9      The juror worked as a workers’ compensation insurance representative.


                                           20
sought clarification. She said she was “frightened of — every night I’m afraid that
I’m not going to be able to sleep. It’s a general fear.” The fear increased the less
she slept. Asked what she would like to do, the juror said she would like to talk to
somebody about her issues. She could talk to her doctor and get a referral for
counseling. She said she did not know how many counseling sessions she would
need. The prosecutor asked, “three, four, five, ten?” She said, “yeah.”
       At this point, the court, after asking the juror to step out of the courtroom,
commented: “She appears to be very fragile emotionally and physically . . . she
moves very slowly. She talks slowly . . . . Whether she understands counseling
with one session or multiple sessions, my concern is that she is seeking assistance
from another person dealing with the pressures of the trial, and what is going on in
the trial; that is creating pressure to her. And that is necessarily going to
contaminate a juror having to counsel with someone about dealing with the jury
function, and how this relates to her prior difficulties.” For these reasons, the
court leaned toward excusing the juror. “Requiring her to continue with the case
without undergoing counseling or assistance would be asking too much of her.
And to the point where she may have a significant emotional breakdown.”
Defense counsel objected; the prosecutor sought removal. The court discharged
the juror.
       Defendant contends this action violated his rights under the Sixth and
Fourteenth Amendments and article I, section 16 of the state Constitution. “ ‘If at
any time, whether before or after the final submission of the case to the jury, a
juror dies or becomes ill, or upon other good cause shown to the court is found to
be unable to perform his or her duty, or if a juror requests a discharge and good
cause appears therefor, the court may order the juror to be discharged . . . .’
(§ 1089.) Removal of a juror under section 1089 is committed to the discretion of
the trial court, and we review such decisions by asking whether the grounds for
                                          21
such removal appear in the record as a demonstrable reality.” (People v.
Thompson (2010) 49 Cal.4th 79, 137.) “The most common application of [section
1089] permits the removal of a juror who becomes physically or emotionally
unable to continue to serve as a juror due to illness or other circumstances.”
(People v. Cleveland (2001) 25 Cal.4th 466, 474.) “We have recognized that both
trial-related and non-trial-related stress can provide good cause for discharging a
juror. (See People v. Collins (1976) 17 Cal.3d 687, 690–691, 696 [inability to
cope with the experience of being a juror]; People v. Fudge (1994) 7 Cal.4th 1075,
1099–1100 [anxiety about new job].)” (Thompson, at p. 138.)
       Here, the excused juror was experiencing extreme stress caused by issues
both trial-related and personal. Her answers to questioning by the court and
counsel were less than clear, even though she said she was feeling better at the
time. She stated that her problems would continue if she could not resolve them
through counseling, but she had never received counseling. Neither she nor
anyone else could say how much counseling might be required or if it would help.
Defendant emphasizes that the juror did not ask to be excused, but that is not a
dispositive factor. Defendant faults the trial court for being concerned that
counseling might lead the juror to improperly discuss trial matters. Yet it was
logical to conclude that counseling necessitated by the stress of trial would involve
some discussion of trial proceedings and her reactions to jury service. Any such
conversation by a sitting juror would be highly inappropriate. It also appears the
juror had told her supervisor about her jury service and the problems it was
causing her.
       The court was confronted with an emotionally fragile, frightened, and
confused juror whose past experiences led her to identify herself both with
prosecution witness Leisey and with the defendants. At the same time, she
became fearful of the defendants when they looked at her. On this record, the
                                         22
court was well within its discretion to find that the juror was emotionally unable to
discharge her duty to decide the case impartially. We defer to the trial court’s
assessment of her mental and physical condition based “on firsthand observations
unavailable to us on appeal.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1053.)
Here, as in Barnwell, “the trial court’s conclusion is manifestly supported by
evidence on which the court actually relied.” (Ibid.)

           3. Marsden Claim
       After the juror was excused, the court read into the record a note from
defendant, saying he wanted “to make a mistrial motion for myself” because of
“misrepresentation” by his lead counsel, who was “siding with the D.A.” and
“hasn’t been fair for me at all” because he “hasn’t made one motion on my
behalf.” Defendant also asked “that I have new counsel to represent me.” The
court held a hearing with only defendant and his counsel present. (People v.
Marsden (1970) 2 Cal.3d 118 (Marsden).) Defendant complained about counsel
being friendly in court with the prosecutor but said, “I don’t want to fire him; I just
feel that I should have a mistrial.” Defendant said counsel had “basically given
the case to the D.A., because he hasn’t filed any motions to try to get anything that
could hurt me thrown out.” The court declined to grant a mistrial and noted that
defendant was not requesting new counsel.
       Two days later, near the close of the prosecution’s case, defendant again
asked for a mistrial. The court informed him that the motion had to be made
through counsel. Defendant said, “Well, I’ll again make a motion to — Marsden
— to fire him because he ain’t making no motion.” The court held another
Marsden hearing, at which defendant complained that his attorneys were
cooperating with the prosecutor and not doing “the defense job.” The court asked
if that was the extent of his complaint, and defendant said, “yeah, basically.” The


                                          23
court explained to defendant that this was a difficult case for his counsel given the
strong evidence of his identity as the shooter and that they were “attempting to
save you by shifting some of the responsibility and blame on to the other
defendants,” which is why they were not objecting to evidence supporting the
Hodges brothers’ role as “manipulators.”
       The court told defendant that there were no grounds to exclude the evidence
that had come in against him and no grounds for a mistrial. Defendant said he
understood what the court had said. The court asked if he had any other reason to
ask for new counsel. Defendant said counsel “should have at least . . . tried to
attack my confession, because . . . well, I wasn’t under the full influence of
alcohol, but I had been drinking before I got arrested.” Counsel explained that he
could find no basis for excluding the confession and pointed out that defendant’s
statements to Littlejohn about the shooting were equally damaging. He said the
reason the defense decided not to join in the Hodges brothers’ mistrial motions
was because the evidence that had come in against them was helpful to defendant.
The court observed that it would be logistically difficult for another attorney to
take over the case at such an advanced stage of trial and “not necessary.”
       The court told defendant that “the big issue in this case” was whether he
was going to testify, emphasizing that the decision was his alone. Defendant said
he understood. The court advised him that, either way, he would not be heard to
complain about his decision later. Defendant asked whether a mistrial would be
granted if he did not testify. The court said, “It wouldn’t be a basis for you to ask
for a mistrial because you elected not to testify. If you don’t testify, your jury is
going to decide the case based on what they’ve heard without your testimony. If
you do testify, they’re going to decide your case based on what they’ve heard,
including your testimony. And you may either help or hurt your case when you
testify. That all remains to be seen.” Defendant said he understood. The court
                                          24
suggested that he listen to the advice of his attorneys and then “just make the
decision yourself.” Defendant again said he understood. He did not renew his
request for new counsel.
       Five days later, defendant made another Marsden motion. By this point, he
had decided not to testify, and the court had denied his counsel’s request for a
mistrial based on Griffin error. (Griffin, supra, 380 U.S. 609; see pt. II.B.1, ante,
pp. 14-18.) Defendant said the basis for his motion was counsel’s failure to object
to the prosecutor’s opening statement, which the court had noted when it refused
to grant a mistrial. Counsel explained that they had not objected because they
expected defendant to testify. The court denied the motion.
       Defendant contends the court failed to make an adequate inquiry into
whether he had an irreconcilable conflict with counsel.10 (Marsden, supra, 2
Cal.3d at pp. 123-124.) The record shows the opposite. At each Marsden hearing,
the court ascertained the basis for defendant’s complaints. Initially, defendant
explained that he did not want a new attorney, only a mistrial. At the second
hearing, the court took care to explain the theory being pursued by defense counsel
in light of the strong evidence against defendant. It made sure he understood that
his own testimony would be an important factor and one that was under his sole
control. Defendant repeatedly said he understood. At the third hearing, defendant
made it plain that his dissatisfaction arose not from any irreconcilable conflict but
from a belated disagreement over trial strategy. The court gave him ample
opportunity to state his reasons for wanting new counsel.




10     He claims violation of his rights under the Sixth Amendment and article I,
section 15 of the California Constitution.


                                          25
             4. Firearm Evidence
       The murder weapon was a .38-caliber revolver, which defendant gave to
Angela Littlejohn after the shooting. She threw it in a dumpster but later assisted
the police in its recovery. On appeal, defendant claims evidence that he possessed
other firearms was improperly admitted. No objection was made on this ground.
In any event, the other firearm evidence was largely tangential and could not have
affected the outcome of either the guilt or penalty phases.
       Two KFC employees testified that several months before the murder,
defendant came to the business and showed them a handgun. One witness said
this gun did not resemble the murder weapon; the other was not sure. Asked by
John Hodges’s counsel about defendant’s connections with guns, one witness said
he heard that defendant had sold a shotgun. No objections were made to this
testimony.
       Later in the trial, just before defendant’s videotaped statement to the police
was played, his counsel asked the court to redact portions in which defendant
talked about owning a .32 automatic handgun and about a picture showing him
with that weapon. Counsel was concerned that this part of the statement would
open the door to admission of the photograph itself, in which defendant and a
friend were making gang signs. The court noted that the statement included no
mention of gangs, and the gun “may or may not be a weapon that witnesses have
testified he had possession of earlier.” The prosecutor assured the court that he
did not intend to present the photograph, which the court had earlier ruled
inadmissible. The court pointed out, “what that means is that what the jury will
have is no more and no less than this reference to a .32, and that he took a picture
with it. It doesn’t suggest gangs. It doesn’t infer gangs in any way. It does admit
ownership of another firearm. And I don’t agree with you that it is irrelevant,
prejudicial, or inadmissible.” Counsel conceded there were no gang connotations

                                         26
in the statement and said that, as long as the picture was not going to be presented
in evidence, “I would still object to it, but I feel a little bit better.”
       Defendant now complains that this evidence of his firearm possession
amounted to inadmissible bad character evidence and improper collateral
impeachment of his statement to the officer that the .32 was the only gun he had
ever owned.11 These grounds were not asserted below and are forfeited. (Evid.
Code, § 353; People v. Carey (2007) 41 Cal.4th 109, 126 (Carey).) Counsel’s sole
objection was based on the gang connotations of his client’s weapons possession.
There is no merit to defendant’s claim that the court’s ruling on this objection
shows that others would have been futile. In any event, the “other firearm”
evidence was of minor significance. Given the strong evidence of defendant’s
possession and use of the murder weapon, evidence that he had other firearms
earlier added little.

            5. Gang Evidence
       Before trial, defendant’s counsel requested that “no mention be made of
any gang involvement.” In response, the prosecutor asked that he be allowed to
impeach defendant with evidence of his membership in the Crips gang. The court
did not rule on the defense request but said “at least as far as articulated so far, I
will deny the D.A.’s motion to permit evidence concerning Carl Powell’s alleged
gang affiliation as . . . reflecting on his credibility and moral turpitude.”
Subsequently, the court ruled that “no references in opening statements be made to
claims of . . . gang affiliations of various defendants or other persons.”




11     He relies on his rights to a fair trial under the Fourteenth Amendment and a
reliable penalty determination under the Eighth Amendment.


                                             27
       In his opening statement, the prosecutor mentioned that Ruben Martinez,
one of defendant’s fellow employees, would testify that defendant had two
nicknames: “Scrooge” and “Baby Hoove.” Defendant did not object. The
prosecutor also read the transcript of defendant’s police statement, which included
an exchange in which the detective asked defendant if he went by any other
names. Defendant replied, “Scrooge and Baby Hoove,” explaining that “Scrooge
was my house name. Baby Hoove was my street name.” Asked if he got his street
name when he was in Los Angeles, defendant said “yeah.” The defense did not
object, nor did it object when the prosecutor read a passage in which the detective
asked about the street name of Roosevelt Coleman, Angela Littlejohn’s son.
Defendant said it was “Baby Snake.” The prosecutor omitted an earlier portion of
the transcript in which defendant affirmed that Coleman was a Crip.
       When Martinez testified, the prosecutor asked if he knew defendant’s
nicknames. The defense objected. The court initially sustained the objection but
then asked if the prosecutor’s purpose was “what had been detailed in your
opening statement?” The prosecutor said “yes,” and the objection was overruled.
Martinez answered that defendant told him “Baby Hoove or Scrooge,” and the
questioning moved on to other matters. At a subsequent hearing, defense counsel
referred to the court’s ruling against gang evidence and pointed out that the
prosecutor had questioned Martinez about defendant’s nicknames. The court
asked, “How does that imply gang membership? If you have a nickname, you’re a
member of a gang?” The court noted that the defense intended to ask Martinez
about gang membership in relation to defendant’s anticipated testimony, though
such questions would be allowed only if defendant did in fact testify.
       Witness Charlie Schuyler saw defendant near the scene around the time of
the murder. Outside the presence of the jury, Schuyler told the court that he was
unsure whether he should testify about defendant’s “gang way of dressing.” His
                                         28
pants were “dropped in the back,” a style Schuyler identified with Crips. No
advisement was requested or given as to how Schuyler should describe
defendant’s appearance to the jury. Under cross-examination by Terry Hodges’s
counsel, Schuyler said he had noticed defendant’s pants and said “the only way I
really know how to word it is in my book he was crippin’.” He added a little later,
“the way I was brought up it was how you identified a Crip.”
       There was no objection at the time, but, during the next recess, John
Hodges’s counsel objected to Schuyler’s gang reference and requested a jury
admonition. Defendant’s counsel said, “I concur with that, although the
description of the way the pants were worn was appropriate, and I think that’s
relevant to the jury. I think it’s relevant to what . . . the witness would perceive in
aiding his identification. But his characterization of cripping, I think, should be
. . . there should be some admonishment. Since it was in before anybody could
say anything . . . I think a simple admonition would be appropriate.” He
explained, “the jury should . . . receive some caution . . . that it’s admissible . . .
not to show gang involvement or anything, but simply as a description.”
       The court refused an admonishment “at this time,” but said, “depending on
what is developed in further testimony, by the end of the case . . . I will consider
orders as to the limited admissibility of this and any other evidence. I will agree
that the prejudice outweighs the probative value to further question this witness
concerning his beliefs as to what it meant for someone to be dressed as they were.
And the witness may describe the dress . . . and not volunteer opinions as to
whether that meant a gang affiliation.”
       Before defendant’s videotaped statement was played, his counsel requested
that the portion in which defendant gave his “house name” and “street name” be
taken out because the jurors would think they were gang names. The court
pointed out that there had already been references to the Scrooge and Baby Hoove
                                            29
nicknames. The prosecutor noted the court had already said that nicknames do not
necessarily carry a gang connotation. The court overruled the objection. Counsel
further objected to the inclusion of the references to Coleman as one of
defendant’s “homies” and his “road dog.” The court overruled that objection as
well. The jury saw and heard the entire videotape, including defendant’s answer
that Coleman was a Crip.
       Defendant claims he was prejudiced by these references.12 The Attorney
General correctly responds that the claim is forfeited as to many of the references
by defense counsel’s failure to timely object. Nor did he request a limiting
instruction at the close of evidence, even though the court had expressly left that
possibility open. If the defense considered these references damaging, counsel
should have requested limiting instructions.

           6. Defendant’s Statements to Littlejohn
       Angela Littlejohn, who had made defendant give her the murder weapon,
told the investigating detective that he “kept pushing” her to give it back to him.
“He say to me, I need that gun, that gun will get me some money.” She also said
she asked defendant why he needed the gun, and he replied, “Well, that’s the only
way I’m going to get the money, with the gun.” Littlejohn added that another of
defendant’s associates had tried to get the gun as well, but she refused because she
feared it might get her son in trouble.
       Early in the trial, defense counsel moved to bar Littlejohn from testifying
about defendant’s desire get the gun back to make money. He argued that such
statements about future intentions did not qualify as character evidence under


12   Defendant refers to his rights to a fair trial under the Fourteenth
Amendment and to a reliable penalty determination under the Eighth Amendment.


                                          30
Evidence Code section 1101 and were irrelevant. The prosecutor responded that
defendant’s intent to use the gun to commit more robberies days after the murder
tended to prove that he used the gun to rob McDade. Counsel for the Hodges
brothers agreed. The court denied the motion, finding that Littlejohn’s testimony
on this point amounted to an implied admission by defendant that he committed
the earlier robbery and was relevant to show consciousness of guilt.
       Just before Littlejohn testified, counsel renewed the objection. He asked
the court to bar testimony about defendant saying he wanted the gun to commit
robbery. Counsel conceded the evidence was relevant on the issue of intent but
claimed it was unduly prejudicial under Evidence Code section 352. He argued
that if the jurors heard this evidence, the defense would not have a fair chance to
persuade them that defendant had approached McDade not to rob him, but to get
his job back. The court adhered to its earlier ruling, finding that the probative
value of the evidence with respect to defendant’s state of mind at the time of the
murder outweighed its prejudicial impact. On the stand, Littlejohn claimed she
did not remember defendant saying he wanted the gun for robbery. Counsel
stipulated to providing the jury with a video of Littlejohn’s police statement,
including the parts where defendant asked for the gun back so he could use it to
get money.
       Defendant now argues that, while probative to some extent, this evidence
was speculative and highly prejudicial, violating his right to due process. The
abuse of discretion standard applies to rulings on admissibility and is particularly
appropriate when the trial court’s determination involved questions of relevance
and state of mind. (People v. Guerra (2006) 37 Cal.4th 1067, 1113.) The court’s
ruling will not be disturbed unless made “in an arbitrary, capricious, or patently
absurd manner that resulted in a manifest miscarriage of justice.” (Ibid.)
Defendant falls well short of that standard. There was evidence that he had stolen
                                         31
from his employers and had spoken to a KFC employee about robbing the
business. He had shown two employees a handgun, though it was evidently not
the murder weapon. His requests to recover the murder weapon from Littlejohn so
he could “get money” were relevant to his intent to rob McDade. Counsel was
correct that this evidence undermined the theory of the defense. However, that
impact was what made the evidence relevant.
       “ ‘The prejudice that [Evidence Code] section 352 “ ‘is designed to avoid is
not the prejudice or damage to a defense that naturally flows from relevant, highly
probative evidence.’ [Citations.] ‘Rather, the statute uses the word in its
etymological sense of “prejudging” a person or cause on the basis of extraneous
factors. [Citation.]’ [Citation.]” [Citation.] In other words, evidence should be
excluded as unduly prejudicial when it is of such nature as to inflame the emotions
of the jury, motivating them to use the information, not to logically evaluate the
point upon which it is relevant, but to reward or punish one side because of the
jurors’ emotional reaction. In such a circumstance, the evidence is unduly
prejudicial because of the substantial likelihood the jury will use it for an
illegitimate purpose.’ ” (People v. Doolin (2009) 45 Cal.4th 390, 439.)
       Defendant claims his statements to Littlejohn were likely to lead the jury to
view him as part of a dangerous group of young African-Americans predisposed to
rob and kill. We disagree. The defense sought to show that defendant did not
mean to rob or harm McDade. His statements were properly admitted to rebut that
claim. There is no reason to believe the jury would have indulged in the
speculative and emotional response defendant imagines.

           7. Photographic Evidence
       Before trial, the Hodges brothers moved to exclude photographs of
McDade’s body at the crime scene and the autopsy, contending they were


                                          32
cumulative and unduly prejudicial. The court made a preliminary ruling that three
of four crime scene photographs were admissible, but that one labeled T-4 was
duplicative of T-3. Both pictures show the body in the car; T-4 was taken at closer
range. The court said it would reconsider if the prosecutor had a witness who
could use T-4 to prove something T-3 did not show. During the testimony of the
first responding police officer, the prosecutor established that T-4 showed the
powder burns on McDade’s temple better than any other photograph. All
defendants objected to the photograph’s admission. The court observed that T-4
did most clearly show the powder burns, which was something “I didn’t even
notice . . . the first time.” It admitted T-4 as relevant to demonstrate the manner of
the shooting.
       Defendant claims error, arguing that the powder burns were visible in T-3,
and T-4 was inflammatory because it showed a large amount of blood on
McDade’s chest.13 We disagree. T-4 reveals the nature of the wound, including
the powder burns, much more clearly than T-3. “ ‘This court is often asked to rule
on the propriety of the admission of allegedly gruesome photographs. [Citations.]
At base, the applicable rule is simply one of relevance, and the trial court has
broad discretion in determining such relevance. [Citation.] “ ‘[M]urder is seldom
pretty, and pictures, testimony and physical evidence in such a case are always
unpleasant’ ” [citation] . . . . [W]e rely on our trial courts to ensure that relevant,
otherwise admissible evidence is not more prejudicial than probative (Evid. Code,
§ 352). A trial court’s decision to admit photographs . . . will be upheld on appeal
unless the prejudicial effect . . . clearly outweighs their probative value.
[Citation.] Finally, prosecutors, it must be remembered, are not obliged to prove


13     Again, defendant refers to his federal due process rights.


                                           33
their case with evidence solely from live witnesses; the jury is entitled to see
details of the victims’ bodies to determine if the evidence supports the
prosecution’s theory of the case. [Citations.]’ ” (People v. Lewis (2009) 46
Cal.4th 1255, 1282, quoting People v. Gurule (2002) 28 Cal.4th 557, 624.) The
court did not err in this case.

            8. Refusal To Instruct on Duress
       While initially inclined to instruct on duress, the court ultimately decided
not to do so. It found nothing in the evidence to support an inference that
defendant had acted under an immediate threat against his life. It noted the
defense could argue that defendant’s mental state was affected by pressure from
the Hodges brothers. Defendant claims the refusal to instruct was error.14 Not so.
       “The defense of duress is available to defendants who commit crimes,
except murder, ‘under threats or menaces sufficient to show that they had
reasonable cause to and did believe their lives would be endangered if they
refused.’ (§ 26; see People v. Anderson (2002) 28 Cal.4th 767, 780.) Although
‘duress is not a defense to any form of murder,’ (People v. Anderson, supra, 28
Cal.4th at p. 780) ‘duress can, in effect, provide a defense to murder on a felony-
murder theory by negating the underlying felony. [Citations.] If one is not guilty
of the underlying felony due to duress, one cannot be guilty of felony murder
based on that felony.’ (Id. at p. 784.) A trial court is required to instruct sua


14     Defendant asserts violations of his rights to due process under the
Fourteenth Amendment, to counsel and a jury trial under the Sixth Amendment,
and to a reliable penalty determination under the Eighth Amendment. For the first
time on appeal, he contends that section 26, subdivision Six, which rules out
duress as a defense to crimes punishable with death, is unconstitutional. We need
not reach that argument, because the court correctly found the evidence
insufficient to support a duress defense.


                                          34
sponte on a duress defense if there is substantial evidence of the defense and if it is
not inconsistent with the defendant’s theory of the case. (See People v.
Breverman (1998) 19 Cal.4th 142, 157.)” (People v. Wilson (2005) 36 Cal.4th
309, 331.) This requirement does not extend to any evidence, no matter how
weak. To be “substantial,” evidence must be sufficient to deserve the jury’s
consideration. (Ibid.)
       Here, there was no evidence that either of the Hodges brothers was armed
at the crime scene. Defendant observes that in a videotaped statement played for
the jury, Banks said John Hodges “probably had a pistol,” but Banks was talking
about a time before the shooting when the robbery was being planned. As to the
robbery, Banks said John simply “told” defendant to shoot McDade. Defendant
also points to Leisey’s testimony that Terry Hodges had to “coach” defendant to
shoot, but coaching is far from duress. In his police statement, defendant said the
brothers were not armed. He did not claim they threatened him in any way, only
that he felt “pressured.” This evidence is insufficient to support an inference of
duress. It is true that the version of events in defendant’s anticipated testimony
included elements of duress. However, defendant elected not to provide that
version and the jury was properly instructed to disregard the prosecutor’s
summary of it in his opening statement.

           9. Failure To Instruct on Theft
       When discussing jury instructions, defendant’s counsel both agreed it made
no sense to instruct the jury on theft as a lesser included offense of robbery. On
appeal, however, defendant contends the evidence would have supported a finding
that he formed the intent to steal only after shooting McDade. Therefore, he




                                          35
claims, there was a sua sponte duty to instruct on theft.15 (See People v. Zamudio
(2008) 43 Cal.4th 327, 360; People v. Breverman, supra, 19 Cal.4th at p. 162.)
The claim fails. Defendant relies on the following portion of his statement to the
police, made just after he admitted shooting McDade:
       “Lee [the detective]: Alright. It’s no secret. I know. I know you pulled
the trigger. He wouldn’t give it to you because he looked at you and he says, man,
. . . get out of here. What did he say to you? Just tell me what he said when you
walked up to him.
       “Powell: I was talking to him about getting my job back and he was like,
come back tomorrow. And I, he didn’t say nothing. You know, he just gave me
the money. And then he just started talking, just you know, cause there was a lot
of stress on my mind, my brother, he was killing me, it’s like my brother don’t
want me around no more.
       “Lee: Calvin’s getting on your butt because you ain’t got a job, right? [16]
       “Powell: Yeah, exactly.
       “Lee: Okay.
       “Powell: You know, and that hurt me. That’s why I kept going to Keith
cause that’s the only job . . . that I’m really good at . . . .
       “Lee: So let me ask you, did you wait for him to come out?
       “Powell: Uh hmm.
       “Lee: Okay. Then he got in the car. And then you walked up to him.
       “Powell: That’s when I started talking to him.

15     Defendant claims violations of his rights to due process, trial by jury, and
reliable guilt and penalty verdicts under the Fifth, Sixth, Eighth, and Fourteenth
Amendments, and his rights to due process and trial by jury under article I,
sections 7 and 15 of the state Constitution.
16     Calvin was the brother with whom defendant was living in Sacramento.


                                             36
         “Lee: When you walked up to him, just tell me, . . . what did you say to
[him]?
         “Powell: I said . . . when you gonna let me get my job back. He said . . .
we’re kinda full right now. And . . . he offered me some chicken. I was like no, I
don’t want no chicken man, you know.
         “Lee: So when you asked him for [your] job, . . . what’d he say, come back
and see me tomorrow?
         “Powell: Yeah, come back and see me tomorrow.
         “Lee: And then what’d you say?
         “Powell: I said, okay. And then I was like, what you got in the bag.
         “Lee: Uh huh.
         “Powell: [Inaudible] money. And then I said, hand it over.
         “Lee: Uh hmm.
         “Powell: And then he was like, . . . he wanted to get out of the car and hurt
me. But I was like, I pulled my gun out and he’s like kinda just sat back down.
And then he started talking on off the wall stuff like, you know (inaudible) . . . .
It’s bad enough my brother was killing me and then he was saying stuff . . . .
         “Lee: So it was really getting you down?
         “Powell: Yeah.
         “Lee: Putting some pressure on you?
         “Powell: It hurt, it hurt me real bad.
         “Lee: Okay. So you pulled your gun out.
         “Powell: Uh hmm.
         “Lee: And what’d he say?
         “Powell: He looked at it.
         “Lee: What’d he say?


                                           37
         “Powell: He looked and I just said, hand it over and he handed it over and
then he really started talking crazy . . . .”
         Defendant urges the jury could have gleaned from this passage that
McDade freely handed the money to defendant, who only later formed the intent
to steal it. The argument beggars belief. The court was not required to instruct on
theft.

             10. Instructions Given

                 a. CALJIC No. 2.50
         The parties discussed CALJIC No. 2.50, regarding evidence of other
crimes, based on defendant’s weapon possession before the night of the crimes.17
The prosecutor argued that the possession tended to show that defendant intended
to commit an armed robbery. Defense counsel disagreed, arguing that mere
possession of a weapon reflects no such intent. The prosecutor pointed out that
defendant had told a KFC employee about his robbery plan. Defense counsel
briefly disputed that evidence, but the witness did, in fact, clearly relate several of
defendant’s statements indicating he was contemplating robbery. The court said it
would instruct that the evidence could be considered for the limited purposes of
showing intent, identity of the perpetrator, and knowledge or possession of means
to commit the crime. The court added, “And if you want to make a note about
objecting when we go back over the instructions, counsel, do so.” No subsequent
objection was made.




17     In addition to defendant’s display of a handgun at the KFC, there was
testimony that he had a handgun with him when he visited a park with friends
about a week before the crime.


                                            38
       Although defendant failed to lodge an objection to this instruction, he may
nevertheless raise a claim that it affected his substantial rights.18 (§ 1259; People
v. Benavides (2005) 35 Cal.4th 69, 111.) He contends the instruction invited
irrational inferences based on mere propensity. The claim fails. Defendant
concedes that his possession of the murder weapon shortly before the shooting was
relevant. The jury could also properly consider his exhibition of a gun to KFC
employees some months earlier, around the time he was talking about robbing the
establishment. This evidence was relevant as to intent, identity, and knowledge.
The connection between the charged offenses and the earlier gun display was
sufficiently close that the evidence did not merely reflect general criminal
propensity. (See 1 Witkin, Cal. Evidence (5th ed. 2012) Circumstantial Evidence,
§ 95, p. 490.) In any event, the instruction included an admonition not to consider
the evidence to prove bad character.

                b. CALJIC No. 2.06
       The prosecutor requested CALJIC No. 2.06, on suppression of evidence,
based on Angela Littlejohn’s disposal of the murder weapon in a dumpster.
Defense counsel objected, noting that defendant was trying to get the weapon
back, not conceal it. The court gave the instruction, which told the jury: “If you
find that a defendant attempted to suppress evidence against himself in any
manner such as by concealing evidence, such attempt may be considered by you as
a circumstance tending to show a consciousness of guilt. However, such conduct




18     Defendant invokes the due process clauses of the Fourteenth Amendment
and article I, sections 7 and 15 of the state Constitution, and his right to reliable
guilt and penalty determinations under the Eighth Amendment and article I,
section 17 of the state Constitution.


                                          39
is not sufficient by itself to prove guilt, and its weight and significance, if any, are
matters for your consideration.”
          Defendant argues that nothing in Littlejohn’s account of her disposal of the
weapon implicated him.19 She demanded that he give her the gun not for disposal
but to prevent further misuse. Defense counsel correctly pointed out that
defendant was trying to retrieve the weapon, not hide it. The Attorney General
suggests the instruction might apply to defendant’s false statements in his police
interview or to his disposal of the bank bag and KFC containers after the murder.
We need not address these alternative theories. Any error in giving CALJIC No.
2.06 was harmless because the inference it permitted was superfluous.
Defendant’s consciousness of guilt was not in question given his statements to the
police.

                  c. CALJIC No. 2.52
          Defense counsel did not object to CALJIC No. 2.52, which allowed the jury
to infer consciousness of guilt from his flight after the crime. Again, because of
the failure to object, we review the claim of error only to determine “if the
substantial rights of the defendant were affected” by the instruction. (§ 1259.)
They were not. As noted, defendant’s consciousness of guilt was established in
his police interview. It has long been recognized that flight may support an
inference to the same effect. (People v. Abilez (2007) 41 Cal.4th 472, 521-523.)
We decline to consider defendant’s arguments, raised for the first time on appeal,
based on the definition of “flight.”




19        He claims the instruction violated his federal due process rights.


                                            40
               d. CALJIC No. 2.71.7
       Defense counsel also raised no objection to CALJIC No. 2.71.7, which
advised the jury to consider with caution an “oral statement of intent, plan, motive
or design . . . made by the defendant before the offense.” Defendant contends the
jury could have applied this instruction to Eric Banks’s testimony that John
Hodges told him defendant had said he did not want to kill McDade. He argues
that the cautionary aspect of CALJIC No. 2.71.7 pertains only to statements
harmful to the defense. It is true that this instruction properly applies to “any
extrajudicial oral statement by the defendant that is used by the prosecution to
prove the defendant’s guilt.” (People v. Diaz (2015) 60 Cal.4th 1176, 1187, italics
added; see CALCRIM No. 358.) Even so, defendant fails to establish any impact
on his substantial rights.20 (§ 1259.) Any “caution” on the jury’s part regarding
Banks’s testimony would not have affected the verdict. Defendant himself
repeatedly said in his police statement that he did not want to kill McDade.
Moreover, Terry Hodges’s account of the crime, as related by Daryl Leisey,
clearly portrayed defendant as a reluctant shooter. It included no statement by
defendant.

               e. CALJIC No. 3.16
       The court asked defense counsel whether he preferred CALJIC No. 3.16,
which would tell the jury the Hodges brothers were accomplices as a matter of
law, or CALJIC No. 3.19, which would leave that determination for the jury.
Counsel asked for the former, while the prosecutor favored the latter. The court
gave CALJIC No. 3.16, which said that “[i]f the crimes of robbery or murder . . .


20      He relies on the due process clause of the Fourteenth Amendment, his right
to a jury trial under the Sixth Amendment, and his right to a reliable penalty
determination under the Eighth Amendment.


                                          41
were committed by anyone, Terry and John Hodges were accomplices as a matter
of law and the statements of each to the extent they incriminate Carl Powell are
subject to the rule requiring corroboration.” Defendant contends this instruction
improperly led the jury to view him as the direct perpetrator.21 This asserted error
was invited by his counsel’s own request. (People v. Harris (2008) 43 Cal.4th
1269, 1293 (Harris).) In any event, defendant fails to show any impact on his
substantial rights. (§ 1259.) The instruction was entirely consistent with the
defense theory that the Hodges brothers pressured defendant into shooting
McDade. Defendant now claims the jury could have credited the first version of
events he gave to the police that he remained in the car while the brothers
committed the crimes. No rational jury would have so concluded given
defendant’s subsequent confession and his statements to Littlejohn taking
responsibility for the shooting.

                f. CALJIC No. 8.81.17
       Without objection, the court instructed: “[T]o find that the special
circumstance referred to in these instructions as murder in the commission of
robbery is true it must be proved, one, the murder was committed while the
defendant was engaged in the commission of a robbery, or, two, the murder was
committed in order to carry out or advance the commission of the crime of robbery
or to facilitate the escape therefrom or to avoid detection. In other words, the
special circumstance referred to in these instructions is not established if the
robbery was merely incidental to the commission of the murder.” (See CALJIC
No. 8.81.17.)

21     He asserts his rights to a jury determination under the Sixth and Fourteenth
Amendments and article I, sections 7, 15, and 16 of the state Constitution, and to a
reliable penalty determination under the Eighth Amendment.


                                          42
       Defendant contends the use of the conjunctive “or” in the first sentence of
this instruction allowed the jury to find the special circumstance true based on
commission of the murder during the robbery, even if the robbery was merely
incidental to the murder. He is correct that we have disapproved the use of “or” in
this context. (Harris, supra, 43 Cal.4th at p. 1299.) However, he fails to show
any impact on his substantial rights.22 (§ 1259.) As in Harris, there was no
evidence to support an inference that defendant killed McDade without the intent
to steal. (Harris, at p. 1300; see pt. II.B.9, ante, pp. 35-38.) Defendant claims the
jury could have found that he shot McDade out of frustration over not being
rehired and only later decided to take the money. No objective view of the
evidence supports such a theory. Neither the prosecution nor the defense
advanced it. Multiple witnesses testified that defendant was contemplating a
robbery before the shooting. In his statement to the police, defendant denied
killing McDade because of his job situation and repeatedly acknowledged the
robbery plan.

                g. First Degree Murder Instruction
       Defendant contends it was improper to instruct the jury on first degree
murder because the information charged him with murder “in violation of section
187,” which he claims pertains only to second degree murder.23 No such


22      Defendant invokes his rights to a jury trial under the Sixth Amendment, to
due process under the Fourteenth Amendment, and to a reliable penalty
determination under the Eight Amendment.
23      Defendant claims violation of his rights to due process under the Fourteenth
Amendment and article I, sections 7 and 15 of the state Constitution, to a jury trial
under the Sixth and Fourteenth Amendments and article I, sections 7, 15, and 16
of the state Constitution, and to reliable guilt and penalty determinations under the
Eighth and Fourteenth Amendments and article I, section 17 of the state
Constitution.


                                         43
objection was raised below. As defendant acknowledges, we have repeatedly
rejected this argument and the claim that it is supported by Apprendi v. New Jersey
(2000) 530 U.S. 466. (E.g., People v. Moore (2011) 51 Cal.4th 386, 412-413;
Harris, supra, 43 Cal.4th at pp. 1294-1295; People v. Morgan (2007) 42 Cal.4th
593, 616-617.) Defendant fails to persuade us to change our view.

           11. The Prosecutor’s Guilt Phase Closing Argument
       Defendant claims the prosecutor committed misconduct during closing
argument on a number of occasions.24 He objected only once, however.
Accordingly, the rest of defendant’s claims of prosecutorial misconduct have been
forfeited. “To preserve such a claim for appeal, ‘a criminal defendant must make
a timely and specific objection and ask the trial court to admonish the jury to
disregard the impropriety.’ ” (People v. Clark (2011) 52 Cal.4th 856, 960.) The
lack of a timely objection and request for admonition will be excused only if either
would have been futile or if an admonition would not have cured the harm. (Ibid.;
see People v. Hill (1998) 17 Cal.4th 800, 820.) Here, there is no merit in
defendant’s argument that the court’s ruling on his single objection rendered it
futile for him to object again.
       The objection was lodged when the prosecutor said “witnesses were able to
be manipulated by the defense attorneys with these leading type questions.” The
court overruled it, telling defense counsel “this is argument; you can respond to it
in your argument.” Nothing in this exchange suggested that objections to other
arguments would have been futile. Nor was the prosecutor’s remark improper. It
is fair comment to argue that witnesses were confused or misled. “ ‘A
prosecutor’s misconduct violates the Fourteenth Amendment to the United States


24     Defendant recites the Fifth, Sixth, Eighth, and Fourteenth Amendments.


                                         44
Constitution when it “infects the trial with such unfairness as to make the
conviction a denial of due process.” [Citations.] In other words, the misconduct
must be “of sufficient significance to result in the denial of the defendant’s right to
a fair trial.” [Citation.] A prosecutor’s misconduct that does not render a trial
fundamentally unfair nevertheless violates California law if it involves “the use of
deceptive or reprehensible methods to attempt to persuade either the court or the
jury.” [Citations.]’ ([]Cole, supra, 33 Cal.4th at p. 1202; accord, People v. Redd
[(2010)] 48 Cal.4th [691,] 733–734.)” (People v. Clark, supra, 52 Cal.4th at p.
960 (Clark).) Here, the “manipulation” remark fell far short of fundamental
unfairness or deception.
       With respect to defendant’s other claims, there was no prejudicial
misconduct, as his counsel’s silence would suggest. Defendant complains that the
prosecutor denigrated defense counsel by calling their theory of the case “the
Svengali defense.” This description, however, logically referred to the claim that
the Hodges brothers forced defendant to shoot McDade. Defendant also objects to
an assertion that defense counsel “doesn’t care about a just verdict. He cares
about the defense of his client, which he’s supposed to. That’s his professional
duty. But don’t buy for a second that he just wants a just verdict.” It is not
misconduct to comment on the role of defense counsel as an advocate. (See
People v. Gionis (1995) 9 Cal.4th 1196, 1216-1218.) In any event, there was no
likelihood of prejudice to defendant. (See People v. Fierro (1991) 1 Cal.4th 173,
212-213.)
       Defendant contends the prosecutor made various improper statements of
personal belief. None of the examples he cites were remotely objectionable, save
one: “Carl Powell is a cold-blooded murderer. That’s what Carl Powell is, and
that’s what I think he is.” “ ‘We have held [that a prosecutor] may not express a
personal belief in defendant’s guilt, in part because of the danger that jurors may
                                          45
assume there is other evidence at his command on which he bases this
conclusion.’ ” (People v. Sandoval (1992) 4 Cal.4th 155, 183.) No prejudice
appears on this record. The prosecutor’s statement of belief was made in passing
in the context of urging what the evidence showed. Accordingly, the jury was
unlikely to have understood the comment as referencing evidence beyond the
record.
       Defendant claims the prosecutor made an improper emotional appeal to the
jury when he questioned the supportiveness of defendant’s family. These
comments came in response to defense counsel’s argument that defendant feared
the Hodges brothers because they posed a threat to his family. The prosecutor’s
statements may not have been particularly logical or persuasive, but they were
hardly likely to provoke an irrational, purely subjective response from the jury.
(See People v. Redd, supra, 48 Cal.4th at p. 742.)
       Defendant also faults the prosecutor for emphasizing defendant’s lack of
remorse, based on Banks’s testimony about a conversation with John Hodges and
Littlejohn’s account of her conversations with defendant. We have said that
“unless a defendant opens the door to the matter in his or her case-in-chief (People
v. Clark (1993) 5 Cal.4th 950, 1016), his or her remorse is irrelevant at the guilt
phase.” (People v. Jones (1998) 17 Cal.4th 279, 307; accord, People v. Riggs
(2008) 44 Cal.4th 248, 301.) Here, the theory of the defense was that defendant
did not want to shoot McDade but was pressured into doing so by the Hodges
brothers. Evidence that he displayed no remorse in the aftermath of the killing
was relevant to rebut that theory.

           12. Jury Misconduct Claim
       After the Hodges brothers’ mistrials, the court told the jury there might be
media reports about the case, adding, “all I can do is ask you to continue to be


                                         46
mindful of avoiding any contact with any of the news reports about any of the
cases and not speculate also as to the status of the case against Terry and John
Hodges.” Several days later, defense counsel noted that the mistrials were
reported in the Sacramento Bee on August 27. He requested an inquiry to the jury
and an admonition that the article “is of no relevance in our situation.” The
prosecutor agreed. Defense counsel added, “I would anticipate the vast majority
[of the jurors], when they saw the headlines in the paper as before, just quit right
there, but . . . .” The court suggested asking the jurors if they could give their
assurance that the article would not affect their deliberations and, if any said it
might, following up with questions outside the presence of the other jurors.
Defense counsel agreed.
       When the jurors came in, the court asked whether any of them had seen
“the short article” or the headline in the newspaper on Saturday concerning the
charges against the Hodges. It asked for a show of hands. One juror responded
“title.” Six jurors and two alternates raised their hands. The court then asked if
the article or headline would in any way affect their deliberations. No hands were
raised, nor did any juror respond when the court inquired, “if I were to direct you
to disregard what you’ve read in either the headline or the article, are there any of
you that feel you would have any problem disregarding any of . . . that in making
your decision in this case?” The court asked if counsel were satisfied or if they
wanted any further inquiry. Defense counsel replied, “no, I think that’s
appropriate, your Honor; that’s fine.”
       After deliberations began, counsel advised the court that defendant wanted
to know if the jury would be questioned about another article in the Sacramento
Bee. Counsel noted that the jury had been advised about the August 27 article but
that on August 24 a similar article discussing the mistrials had appeared. Counsel
added, “my feeling is that . . . the court’s inquiry on the last one it would probably
                                          47
cover both of them. Maybe [the] court has different feelings on that.” The court
pointed out that its last advisement had been specific to the August 27 article.
Defense counsel explained, “the reason I said that is I heard several of them say
yeah. We saw the caption. But that’s where we stopped. . . . I think that — from
what several said I assume maybe they were doing the same thing with the
previous articles.”
       The court noted that there had been no further inquiry on the August 27
article because defense counsel were satisfied with simply asking how many jurors
had seen the article and the headline without going into the content of the article.
Counsel observed that the August 24 article might be more damaging to the
defense than the August 27 article because it included some comments from jurors
in the Hodges brothers’ case. Counsel were uncertain as to how or even whether
to make an inquiry while the jury was deliberating. Ultimately, they agreed with
the court’s suggestion that it send the jury a written question, asking simply if they
had seen the August 24 article and, if so, would they have any difficulty
disregarding it. When the court asked if there had been any other articles, counsel
pointed out that there had been others that had been brought up, but no request was
made to include those in the query. Counsel expressly approved the court’s
proposal, saying, “that sounds good — just the way you said it.” Five jurors
responded they had read the August 24 article or its headline. None indicated they
would be unable to disregard whatever they had read.
       Defendant claims it was misconduct for jurors to have read the articles.25
However, the record does not show that any juror actually read either article.

25     He relies on his rights to an impartial jury under the Fourteenth
Amendment and article I, sections 7, 16, and 17 of the state Constitution, and to a
reliable penalty determination under the Eighth Amendment.


                                         48
Indeed, defense counsel stated their belief that the jurors who said they saw the
articles had probably stopped reading after the headlines, as they had become
accustomed to doing throughout the trial. Accordingly, defendant fails at the
outset to show any misconduct. He further contends the court’s inquiry was
inadequate. That claim has been forfeited by counsel’s approval of the court’s
approach and failure to seek any broader investigation. (People v. Holloway
(2004) 33 Cal.4th 96, 126-127 (Holloway).) In any event, no prejudice appears.
(See People v. Tafoya (2007) 42 Cal.4th 147, 192.) The jury clearly understood
that the articles were not to be considered during deliberations. Even if it could be
inferred that any juror read one or both of them, neither article is part of the
record. Thus, there is no basis to conclude that the articles affected the verdict.
       C. Penalty Phase Issues

           1. Restrictions on Testimony of Defense Expert
       In his penalty phase opening statement, defense counsel said the jury would
hear from a psychologist, Larry Nicholas. The prosecutor objected when counsel
began detailing what defendant told Nicholas about the murder. The court
excused the jury and heard argument. Counsel said Nicholas would report a
version of events similar to the testimony the prosecutor had told the jury it would
hear from defendant himself at the guilt phase: Defendant had approached
McDade to talk about his job, then the Hodges brothers walked up, announced a
robbery, gave defendant a gun, and pressured him into shooting McDade.
       Counsel contended this testimony was relevant to mitigation. The
prosecutor argued that he would be deprived of his ability to cross-examine
defendant if the defense presented his story through Nicholas’s testimony and that
such testimony would significantly enhance the testimony of Leisey and Banks,
which tended to shift blame to the Hodges brothers. The court observed it could


                                          49
instruct the jury not to consider defendant’s statements for their truth but only as
the basis for the doctor’s opinion. The prosecutor was skeptical the jury would be
able to make that distinction. The court asked defense counsel whether he could
limit the doctor’s description by simply having him testify that defendant gave him
a version of the events similar to the evidence the jury had heard during the guilt
phase. Counsel responded that defendant’s credibility during his interview with
the doctor was a critical issue, and he wanted the doctor’s opinion on defendant’s
credibility to be clearly based on defendant’s statements.
       The prosecutor objected to Nicholas vouching for defendant’s credibility.
Defense counsel agreed this would have been improper at the guilt phase but
argued that he was entitled to elicit lingering doubt during the penalty phase. The
court asked for the psychologist’s report and said it would conduct research during
the noon recess. It ultimately sustained the prosecutor’s objection, ruling that
defendant’s statements to Nicholas were inadmissible hearsay. Subsequently, the
court explained that its ruling was based on People v. Coleman (1985) 38 Cal.3d
69 (Coleman) and People v. Price (1991) 1 Cal.4th 324 (Price). It drew from
these cases the rule that “otherwise inadmissible hearsay that prejudices one side”
cannot be presented through expert testimony. The court said Nicholas could be
asked hypothetical questions based on the evidence presented to the jury. What he
could not do was “give a self-serving albeit somewhat incriminating and
somewhat exonerating statement of an out-of-court declarant.”
       Defendant claims the court erred by reading Coleman and Price as
requiring the automatic exclusion of hearsay statements from expert testimony if




                                          50
no exception applies.26 He relies on the proposition that experts may rely on
statements that would otherwise be hearsay in forming their opinions because the
statements are not being offered for their truth. (People v. Montiel (1993) 5
Cal.4th 877, 918; Coleman, supra, 38 Cal.3d at p. 92.) 27 Defendant
mischaracterizes the trial court’s reasoning. The court applied no rigid rule of
exclusion but made clear its view that, under Coleman and Price, it had discretion
to exclude matters relied upon by an expert if their content was unduly prejudicial.
At one point, the court noted that the error in Coleman was that “the trial judge
should have exercised discretion to disallow that prejudicial content from being
utilized in cross examination of the doctor.” (See Coleman, at p. 93; Price, supra,
1 Cal.4th at p. 416 [“A trial court has considerable discretion to control the form in
which the expert is questioned to prevent the jury from learning of incompetent
hearsay”]; see also People v. Pollock (2004) 32 Cal.4th 1153, 1172 [“Although an
expert may base an opinion on hearsay, the trial court may exclude from the
expert’s testimony ‘any hearsay matter whose irrelevance, unreliability, or
potential for prejudice outweighs its proper probative value’ ”]; People v.
Carpenter (1997) 15 Cal.4th 312, 403 [prejudice may arise if, under the guise of



26      He refers to his rights to due process under the Fifth and Fourteenth
Amendments, to present a defense under the Sixth Amendment, and to a reliable
penalty determination under the Eighth Amendment.
27      Defendant does not rely on Green v. Georgia (1979) 442 U.S. 95, which
held that even if certain penalty phase evidence was barred by state hearsay rules,
due process required its admission when it was “highly relevant to a critical issue
in the punishment phase of the trial” and “substantial reasons existed to assume its
reliability.” (Id. at p. 97.) We have noted that Green applies only to evidence
having “ ‘special indicia of reliability.’ ” (People v. Eubanks (2011) 53 Cal.4th
110, 150, quoting People v. Weaver, supra, 26 Cal.4th at p. 981.) As discussed
post, defendant’s statements to Nicholas bore no such indicia.


                                         51
reasons, an expert’s detailed explanation presents the jury with incompetent
hearsay evidence].)
       We have recently clarified the law in this area, holding that “[w]hen any
expert relates to the jury case-specific out-of-court statements, and treats the
content of those statements as true and accurate to support the expert’s opinion,
the statements are hearsay.” (People v. Sanchez (2016) 63 Cal.4th 665, 686
(Sanchez).) We disapproved a number of cases, including Coleman, supra, 38
Cal.3d 69, to the extent they held that a limiting instruction and a trial court’s
evaluation of the prejudicial impact of such statements may sufficiently address
the hearsay and confrontation problems. (Sanchez, at p. 686, fn. 13.) Here,
because the trial court excluded defendant’s statements to Nicholas, no such
problems arose. Moreover, the court’s ruling was fully consistent with Sanchez,
under which defendant’s statements were inadmissible as “[c]ase-specific facts . . .
relating to the particular events and participants alleged to have been involved in
the case being tried.” (Id. at p. 676.)
       In this case, the version of events defense counsel wanted to introduce
through Nicholas’s testimony was significantly more exculpatory than the versions
properly admitted into evidence, including those defendant himself provided in his
police interview. Defense counsel made plain his intent to use the doctor to
enhance defendant’s credibility, making it clear that defendant’s self-serving
statements were being offered for their truth. Thus, they were “incompetent
hearsay evidence.” (Coleman, supra, 38 Cal.3d at p. 92.) The court did not abuse
its discretion by excluding defendant’s self-serving account to Nichols.

           2. Gang Evidence
       Defendant challenges the admission of two forms of gang evidence in the
penalty phase. The first was a photograph of him and William Akens taken in


                                          52
November 1991. It shows them pointing guns at each other and curling their free
hands into a “C” shape, standing for “Crips.” The second was testimony from a
gang unit detective that defendant had a reputation as a “main player” in the
Crips.28
       During an in limine discussion of penalty phase evidence, the court ruled
that the photograph did not qualify as evidence of a threat of violence for purposes
of the aggravating factor set out in section 190.3, subdivision (b). However, the
court noted that gang evidence would be admissible in connection with any violent
conduct by defendant that was gang-related. Akens testified for the prosecution at
the penalty phase. He identified himself as a Freeport Crip but was evasive about
defendant’s gang membership. He said his association with defendant “wasn’t
about a gang; it was about who had each other’s back.” Akens acknowledged that
defendant had been a Crip when he was in Los Angeles but said he did not “look
at him as a Crip,” and refused to identify him as a Freeport Crip. Akens testified
that in the fall of 1991, defendant had remained outside when Akens entered a
high school classroom and confronted Zeke Moten, a student who had left the
Crips and joined the Bloods. The teacher in the room, however, testified that
defendant had entered with Akens and also threatened Moten.
       Akens testified that as he and defendant drove by the high school some
days later, they saw Moten at a bus stop with other people. Moten’s group shot at
their car, so they returned fire. Akens said defendant had been a shooter.
However, on cross-examination, he insisted he had not seen defendant shoot and
was only told about it later. On redirect, he conceded he had told a police officer
that defendant was the shooter but said he was on medication at the time and was

28   Defendant relies on his rights to due process under the Fourteenth
Amendment and to a reliable penalty determination under the Eighth Amendment.


                                         53
only relating an assumption. Akens claimed he did not know if defendant owned a
gun at that time but admitted he had taken “some pictures” with defendant in
which they both had guns. He repeated that he did not know whether defendant
had been armed during the bus stop shooting or had fired any shots.
       The prosecutor called Ronald Aurich, a detective who questioned Akens
after the shooting. Aurich had been a gang detective from 1984 until 1994. He
said Akens had identified defendant as the shooter. The defense objected,
unsuccessfully, when the prosecutor asked about the dispute that led to the
shooting. Aurich said that, according to Akens, the dispute had been between
defendant and a person named Andre Whitaker. The prosecutor asked if Aurich
recognized defendant’s name. When the defense objected, the court restricted the
question to the issue of defendant’s reputation. Aurich said defendant had a
reputation as a “Freeport Crip and was a main player.”
       The prosecutor moved to admit the picture of Akens and defendant. The
defense argued that after Akens’s testimony, there was no doubt he and defendant
were Crips, so the photograph was cumulative. Counsel also claimed it was
inflammatory, because it suggested defendant and Akens “were on some sort of
a[n] endless trail of crime.” The court ruled the photograph was relevant to show
defendant’s gang membership and not unduly prejudicial. The court noted that the
thrust of the penalty phase defense was that defendant only committed the crime
because of the Hodges brothers’ influence. The photograph indicated that
defendant had “considered doing such a thing previously,” even if he was joking
when holding the gun to Akens’s head.
       Defendant renews his arguments on appeal. The photograph, however, was
neither cumulative nor prejudicial. Akens did not identify defendant as a Freeport
Crip during his testimony. Although Detective Aurich testified to defendant’s
reputation as a Freeport Crip and Nicholas testified for the defense that defendant
                                         54
continued his association with the Crips after moving to Sacramento, the
prosecutor was not required to rest his case on such attenuated sources. Further,
the photograph was admitted in rebuttal after defendant attempted to minimize his
gang involvement. His gang membership was directly relevant to his participation
in the classroom incident and drive-by shooting, which were gang-related. It was
also relevant to another assault against a rival gang member, Harold Rigsby, who
testified at the penalty phase. Additionally, the photograph shows defendant in
possession of a gun around the time of the drive-by shooting, something Akens
was not willing to confirm. The court did not abuse its discretion.
       Defendant claims there was insufficient foundation for Detective Aurich’s
testimony that he was reputed to be a “main player” in the Freeport Crips. In a
supplemental brief, defendant argues the testimony improperly conveyed hearsay
and violated confrontation principles, relying on Sanchez, which concluded that
“[w]hen any expert relates to the jury case-specific out-of-court statements, and
treats the content of those statements as true and accurate to support the expert’s
opinion, the statements are hearsay. It cannot logically be maintained that the
statements are not being admitted for their truth. If the case is one in which a
prosecution expert seeks to relate testimonial hearsay, there is a confrontation
clause violation unless (1) there is a showing of unavailability and (2) the
defendant had a prior opportunity for cross-examination, or forfeited that right by
wrongdoing.” (Sanchez, supra, 63 Cal.4th at p. 686, fn. omitted.)
       Initially, the Attorney General argues defendant forfeited his claim because
he raised no hearsay or confrontation objection to Aurich’s testimony, nor did he
challenge the evidence as improper reputation testimony. We agree under the
present circumstances. Defense counsel objected on grounds of “relevance” and
“one of your prior rulings as well,” an apparent reference to the court’s pretrial
ruling against the admission of gang-related evidence unless incidents of gang
                                         55
violence were at issue. On cross-examination, counsel explored the basis for
Aurich’s assessment of defendant’s reputation but did not move to strike his
testimony.
       It is true that Sanchez postdated the trial here. However, Sanchez would
only excuse a lack of objection if an objection would have otherwise been futile
under prior law. The issue in Sanchez was whether an expert may properly relate
to the jury out-of-court statements to explain the bases for the expert’s opinion
testimony. Pre-Sanchez law characterized such statements as nonhearsay,
reasoning that “matters admitted through an expert go only to the basis of his
opinion and should not be considered for their truth.” (People v. Montiel, supra, 5
Cal.4th at p. 919; see Coleman, supra, 38 Cal.3d at p. 92.) As such, a hearsay
objection to such expert testimony would generally have been futile unless it was
shown that the jury could not “properly follow the court’s limiting instruction in
light of the nature and amount of the out-of-court statements admitted.” (Sanchez,
supra, 63 Cal.4th at p. 679.)
       Here, however, Aurich did not testify as an expert. Aurich initially testified
regarding his interview of Akens. He was then asked about defendant’s reputation
for gang activity, whereupon he testified he “was receiving” information that
defendant was a “Freeport Crip and was a main player,” explaining the latter
phrase. Aurich was not testifying as an expert by conveying his own opinion
about defendant’s gang activity or offering hearsay in support of such an opinion.
Rather, he was relating what he had been told about defendant’s gang activity.
(Cf. People v. Jones (2017) 3 Cal.5th 583, 603, fn. 4.) Whether such testimony
fell within the ambit of the hearsay exception for reputation concerning character
(Evid. Code, § 1324) or otherwise violated the right of confrontation, the bases for
challenging it predated Sanchez. (See, e.g., People v. Eli (1967) 66 Cal.2d 63, 78-
80 [finding error in the admission of reputation evidence].) As such, defendant’s
                                         56
failure to object forfeited his claims. (See People v. Abel (2012) 53 Cal.4th 891,
924.)
        In any event, even assuming error, the admission of the “main player”
statement was harmless beyond a reasonable doubt. As the Attorney General
observes, evidence was presented at the penalty phase of defendant’s involvement,
along with Akens, in a shooting of a rival gang member. Additionally, evidence
reflected that defendant had been a gang member since he was 12 years old and
continued his involvement in the Crips when he moved to Sacramento at age 16.
A photo depicted defendant and Akens holding guns and displaying gang signs.
Aurich described “main players” as “a little more hardcore, gang members who
promote their gang, be involved in gang activity, be involved in gang related type
crimes, be a little more blatant about who they are and what they do.” The
evidence already reflected defendant’s significant gang involvement without
Aurich’s shorthand characterization. (Cf. People v. Banks (2014) 59 Cal.4th 1113,
1199 [improper reputation evidence harmless].)

            3. Victim Impact Evidence
        Edwina Pama, Colleen McDade’s mother, testified about the impacts of the
murder on the McDade family. After she spoke about Colleen and the two
McDade children, the prosecutor asked her about Keith’s mother and siblings.
Defense counsel objected, stating he had been “holding back on my objections,”
but argued that “if counsel wants to ask one witness about the effects on another, I
suggest he bring the other witness in.” The court overruled the objection “to the
extent that the witness may describe things she has perceived as opposed to
opinions she has otherwise.”
        Pama said the murder had been “very, very hard” on Keith’s mother. “At
first it seemed like she didn’t want to talk about Keith. To me it was like, you


                                         57
know . . . if you don’t say anything about it, it will go away.” Defense counsel
renewed his objection, asking that the testimony be struck and that questioning be
restricted to what the witness had seen or heard. The court again overruled the
objection, stating that Pama could give her “lay opinion” “as to what she actually
perceived and what she believed concerning those perceptions.” Counsel objected
again when the prosecutor asked how Keith’s murder had affected his brother.
The court sustained this objection, telling the prosecutor to restate the question so
as to focus on “what she has perceived other than what she may know from any
other hearsay source.”
       Defendant challenges these rulings.29 First, he claims Pama’s testimony
should have been excluded as improper lay opinion. He cites People v. Chatman
(2006) 38 Cal.4th 344, 397 for the proposition that “[g]enerally, a lay witness may
not give an opinion about another’s state of mind.” But as the Chatman court
continued to say, “a witness may testify about objective behavior and describe
behavior as being consistent with a state of mind.” (Ibid.) There, a penalty phase
witness testified that he had seen the defendant kicking a school custodian. The
prosecutor asked whether the defendant “ ‘seemed to be enjoying it.’ ” (Ibid.)
The witness’s affirmative answer was held to be proper. Similarly here, Pama was
qualified to testify about her own direct perceptions of how McDade family
members reacted to the murder. The trial court’s responses to the objections made
plain to the jury and the witness what the proper scope of her testimony was.
Defendant’s attempt to parse the record for examples of Pama’s projection of her
own feelings is not persuasive. Any defects in the testimony in this regard were
merely semantic and cannot be deemed prejudicial.

29   He claims violations of the Fifth, Sixth, Eighth, and Fourteenth
Amendments.


                                         58
       Defendant further contends that Pama’s testimony was so inflammatory as
to invite an irrational, purely subjective response from the jury. (See Payne v.
Tennessee (1991) 501 U.S. 808, 824-825; People v. Edwards (1991) 54 Cal.3d
787, 835-836.) As defendant concedes, he failed to raise such an objection below,
forfeiting this claim. (People v. Simon (2016) 1 Cal.5th 98, 139 (Simon).) What
we said recently in Simon also applies here: “Even if [the] claim were not
forfeited, his argument fails on the merits because the victim impact evidence was
not unduly prejudicial. The family members’ testimony here properly described
the nature of their relationships with the victims, how they learned about the
crimes, and how the crimes impacted their lives. [Citations.] Furthermore, neither
the number of witnesses . . . nor the amount of testimony . . . was excessive.” (Id.
at pp. 139-140, citing People v. Romero and Self (2015) 62 Cal.4th 1, 46 [no error
where victim impact testimony consisted of six witnesses spanning 96 pages of the
reporter’s transcript]; People v. Pearson (2013) 56 Cal.4th 393, 464–467 [victim
impact testimony of 13 witnesses]; People v. Nelson (2011) 51 Cal.4th 198, 219–
221 [victim impact testimony of one victim’s six family members].)
       “Moreover, the content of the victim impact evidence was not so emotional
that it became unduly prejudicial. [Defendant] is likely correct that the testimony
painted a picture of ‘the complete devastation of two families,’ but that is to be
expected when loved ones have been brutally murdered. [Citations.] The question
is not simply whether victim impact evidence was emotional or demonstrated the
devastating effect of the crime; rather, it is whether the testimony invited an
irrational response from the jury. [Citation.] [Defendant], however, provides no
persuasive basis for us to conclude that the testimony presented in this case
triggered such a response. And our review of the record indicates the testimony
was not so emotional that the trial court’s failure to exclude it amounted to an


                                         59
abuse of discretion or rendered [the] trial fundamentally unfair.” (Simon, supra, 1
Cal.5th at p. 140.)

           4. The Prosecutor’s Penalty Phase Closing Argument
       Defendant argues, at great length, that the prosecutor committed
misconduct during his penalty phase argument.30 No objection was made below.
As noted, a claim of prosecutorial misconduct is forfeited when there was neither a
timely and specific objection nor a request for admonition. (Clark, supra, 52
Cal.4th at p. 960.) Defendant refers to the court’s rejection of his single objection
to a guilt phase argument when the prosecutor asserted that “witnesses were able
to be manipulated by the defense attorneys with these leading type questions.”
(See pt. II.B.11, ante, pp. 44-45.) On this basis, he asserts that any objections at
the penalty phase would have been futile. The claim is meritless. Nor do we
accept defendant’s contention that the effects of the prosecutor’s misconduct could
not have been cured by admonition. None of the alleged instances of misconduct
were so provocative that an advisement would have been ineffective, assuming
one were called for.
       Although defendant’s claims are forfeited, we address them in summary
fashion. Defendant contends the prosecutor’s comments comparing him to a
Bengal tiger constituted a “thinly-veiled racist allusion” that dehumanized him and
thus constituted an improper argument regarding his future dangerousness. We
have previously rejected claims based on similar comments and find no ground to
reach a different result here. (See People v. Brady (2010) 50 Cal.4th 547, 585;
People v. Duncan (1991) 53 Cal.3d 955, 976-977.) It goes without saying that a


30   He asserts violations of the Fifth, Sixth, Eighth, and Fourteenth
Amendments.


                                          60
prosecutor may not compare a defendant to a beast for the purpose of
dehumanizing him before the jury or in an effort to evoke the jury’s racial biases.
The prosecutor may, however, properly remind a penalty phase jury of the
circumstances of the offense, including the brutality of the murder, and caution the
jury against judging defendant solely based upon his calm demeanor in the
courtroom. Here, as in our prior cases, the record makes clear that the prosecutor
was using the Bengal tiger analogy only to make the latter point. Under the
circumstances of the case, we find no prejudicial misconduct.
       Defendant acknowledges that, under our precedent, the prosecutor could
urge the jury to give him the same degree of sympathy he gave to McDade. (E.g.,
People v. Collins, supra, 49 Cal.4th at p. 230; People v. Ochoa (1998) 19 Cal.4th
353, 464-465.) He does not persuade us to change our view. Similarly, we
decline to overrule our cases holding that the jury may be asked to consider the
crime from the victim’s point of view. (E.g., People v. Scott (1997) 15 Cal.4th
1188, 1220; People v. Garceau (1993) 6 Cal.4th 140, 206.) The prosecutor’s
arguments here were based on reasonable inferences from the evidence about the
circumstances of the shooting. The evidence also supported the prosecutor’s
observation that defendant could have killed someone when he fired at the crowd
around the bus stop. In general, the prosecutor’s use of the aggravating evidence
of defendant’s gang activity was proper.
       “The prosecutor is entitled to note the absence of the mitigating
circumstance of remorse. . . .” (Burney, supra, 47 Cal.4th. at p. 266.) To the
extent the prosecutor’s arguments here could have been construed by the jury to
employ defendant’s lack of remorse as an aggravating factor, such a
misapplication could easily have been remedied by the court if an objection were
made. (See People v. Jurado (2006) 38 Cal.4th 72, 141.)


                                           61
      The prosecutor’s comments on defendant’s supportive family were not an
improper use of extenuating circumstance evidence under section 190.3,
subdivision (k). (See People v. Caro (1988) 46 Cal.3d 1035, 1062-1063.)
      “Although it is misconduct to misstate facts, the prosecutor ‘enjoys wide
latitude in commenting on the evidence, including the reasonable inferences and
deductions that can be drawn therefrom.’ ” (People v. Collins, supra, 49 Cal.4th
at p. 230.) Here, the prosecutor did not materially misrepresent the evidence of
defendant’s relationship with the McDades or Nicholas’s testimony regarding
whether defendant was pressured into shooting Keith. His comments with respect
to whether the Hodges brothers were present at the moment of the shooting were
based on defendant’s own statements to the police. Any misstatement could easily
have been corrected by the court upon timely objection. Further, the jury was told
to determine the facts from the evidence and not from the arguments of counsel.
      The Attorney General concedes the evidence did not support the
prosecutor’s argument that William Akens was on probation, giving him an
incentive to testify truthfully. However, defense counsel made no effort to correct
the mistake. The record shows that Akens was, in fact, on parole from the
California Youth Authority (now the Division of Juvenile Justice), though the jury
was not informed of this. However, the jury heard evidence that Akens had just
been released from the custody. Defendant was not prejudiced by the prosecutor’s
misstatement.
      Defendant asserts the prosecutor denigrated defense counsel by claiming
they were trying to shift blame to the Hodges brothers. That was the essence of
the defense strategy. The argument was a proper comment on this tactic. (See,
e.g., People v. Seaton (2001) 26 Cal.4th 598, 663; People v. Bemore (2000) 22
Cal.4th 809, 846.) Defendant also contends the prosecutor improperly attacked
the credibility of Nicholas, claiming he was “bought and paid for” and disputing
                                        62
his assessment of defendant’s IQ. The prosecutor’s remarks were not improper.
(See Clark, supra, 52 Cal.4th at p. 962 [“our decisions make clear that ‘harsh and
colorful attacks on the credibility of opposing witnesses are permissible’ ”];
People v. Arias (1996) 13 Cal.4th 92, 162 [argument that defense expert
“ ‘stretch[ed]’ ” a principle “ ‘for a buck’ ” was permissible comment suggesting a
paid witness may be biased].)
       Finally, defendant claims the prosecutor improperly invoked biblical
authority when he argued, “If you make certain choices in your life theology-wise
you go to hell. If you make other certain choices in your life, you go to heaven.
That’s the way it is.” “As we have explained, ‘[t]he primary vice in referring to
the Bible and other religious authority is that such argument may “diminish the
jury’s sense of responsibility for its verdict and . . . imply that another, higher law
should be applied in capital cases, displacing the law in the court’s
instructions.” ’ ” (People v. Hughes (2002) 27 Cal.4th 287, 389.) Any possible
misconduct was harmless. These comments came in response to the defense
argument that the Hodges brothers made defendant shoot McDade, in an effort to
persuade the jury to hold him responsible for his actions. The prosecutor did not
urge the jury to apply a source of law other than the court’s instructions. (See
People v. Huggins (2006) 38 Cal.4th 175, 208.)

           5. News of an Unrelated Case
       After the jury announced it had reached a penalty verdict, but before it was
brought in to announce it, defense counsel commented, “I’m sure we’ve all read
[about] the incident that happened here the other day, the McDonald’s on Florin
Road, the shooting and probably some gang relationship to that as well. What I’m
thinking is, that perhaps the Court might make some inquiry whether the jurors
have, number one, have they read that article, and if they did, whether it


                                          63
influenced them in any way? And however the Court wants to handle that, I
would leave it up to you.” Counsel observed that the coverage of this incident
occurred during the arguments and continued during the jury’s deliberations.
Counsel agreed with the court’s suggestion that it question the jury as a panel
rather than individually. Counsel further agreed with the prosecutor that the
inquiry take place after the jury disclosed its verdict.
       After the verdict was entered, the court asked the panel, “Which, if any of
you, were exposed to any of the news reports . . . of the recent McDonald’s fast-
food robbery-murder case? Were there any of the deliberating jurors who heard or
read any of those reports?” Only two jurors were unaware of the incident. The
court asked, “those who did receive any information about that, were there any of
you that were influenced in your decision by any of the news reports concerning
that?” No juror gave a positive response.
       Defendant contends the court conducted an inadequate inquiry into jury
misconduct.31 However, defense counsel fully acquiesced in the court’s approach
and made no request for further inquiry, forfeiting any claim of error. (Cf.
Holloway, supra, 33 Cal.4th at pp. 126-127.) In any event, the claim is
unfounded. The court need not have conducted any inquiry at all. We have held
that the effects of a jury’s exposure to coverage of other crimes is too speculative
to require investigation by the court. (Clark, supra, 52 Cal.4th at pp. 966-967, and
cases therein cited.)




31      He invokes his fair trial rights under the Sixth and Fourteenth Amendments
and article I, sections 7, 15, and 16 of the state Constitution, as well as his right to
a reliable penalty determination under the Eighth Amendment.


                                           64
            6. Refusal of Instructions Proposed by the Defense

                a. Victim Impact Evidence
        The court declined to give the following instruction proposed by the
defense: “Evidence has been introduced for the purpose of showing the specific
harm caused by the defendant’s crime. Such evidence, if believed, was not
received and may not be considered by you to divert your attention from your
proper role of deciding whether defendant should live or die. You must face this
obligation soberly and rationally, and you may not impose the ultimate sanction as
a result of an irrational, purely subjective response to emotional evidence and
argument. On the other hand, evidence and argument on emotional though
relevant subjects may provide legitimate reasons to sway the jury to show mercy.”
We have rejected claims of error based on the refusal to give this instruction or to
instruct sua sponte on the proper use of mitigating evidence. (People v. Russell
(2010) 50 Cal.4th 1228, 1265-1266; Carey, supra, 41 Cal.4th at p. 134.) We do so
again here.32 The jury was adequately instructed with CALJIC Nos. 8.84.1 and
8.85.

                b. Mitigating Evidence
        Defendant contends the court erred by failing to give several proposed
instructions with regard to mitigating evidence.33 First, he challenges the rejection
of an instruction stating: “If the mitigating evidence gives rise to compassion or
sympathy for the defendant, the jury may, based upon such sympathy or
compassion alone, reject death as a penalty. A mitigating factor does not have to


32      Defendant refers to the Sixth, Eighth, and Fourteenth Amendments and
article I, sections 7, 15, 16, and 17 of the state Constitution.
33      He claims violations of his rights under the Fifth, Sixth, Eighth and
Fourteenth Amendments and article I, sections 7 and 15 of the state Constitution.


                                         65
be proved beyond a reasonable doubt. A juror may find that a mitigating
circumstance exists if there is any evidence to support it no matter how weak the
evidence is.” The court did instruct the jury that mitigating factors need not be
proven beyond a reasonable doubt and that a mitigating factor may be found to
exist “if there is any credible evidence to support it.” The court’s instructions on
this point, together with the standard CALJIC instructions on mitigation evidence,
were entirely sufficient. (CALJIC Nos. 8.85 & 8.88.) We have rejected claims
that the jury must be told that sympathy or compassion alone may justify rejection
of the death penalty. (People v. Davis (2009) 46 Cal.4th 539, 621-622; People v.
Loker (2008) 44 Cal.4th 691, 744.) We have also held that the court has no duty
to instruct the jury that it may find a mitigating circumstance if there is “any
evidence to support it.” (People v. Brasure (2008) 42 Cal.4th 1037, 1069.)
       Defendant also asked for the following instruction on mental impairment:
“The mental impairment referred to in this instruction is not limited to evidence
which excuses the crime or reduces defendant’s culpability, but includes any
degree of mental defect, disease or intoxication which the jury determines is of a
nature that death should not be imposed. That the jury has rejected a defense of
insanity, diminished capacity or diminished actuality at a previous stage of the
proceedings does not prohibit its consideration of evidence showing some
impairment as a reason not to impose death.” The court declined to give this
instruction, saying it would instead modify CALJIC No. 8.85, factor (i) to permit
the jury to consider defendant’s “chronological or psychological age at the time of
the crime.” (Italics added.) Defense counsel said, “I think that’s appropriate, your
honor.”
       The court’s instructions were adequate. The passage in defendant’s
proposed instruction regarding the defenses of insanity, diminished capacity, or
diminished actuality were irrelevant. None of these defenses were presented to the
                                          66
jury. CALJIC No. 8.85, factor (h) advised the jury that in deciding which penalty
to impose, it must consider “[w]hether or not at the time of the offense the
capacity of the defendant to appreciate the criminality of his conduct or to
conform his conduct to the requirements of law was impaired as a result of mental
disease or defect or the effects of intoxication.” The portion of the proposed
instruction that was not irrelevant was duplicative of this standard instruction.
       Finally, defendant contends the court erred by refusing to instruct the jury
that “[t]he mitigating circumstances that I have read for your consideration are
given merely as examples of some of the factors that a jury may take into account
as reasons for deciding not to impose a death sentence in this case. A juror should
pay careful attention to each of those factors. Any one of them may be sufficient,
standing alone, to support a decision that death is not the appropriate punishment
in this case. But a juror should not limit his or her consideration of mitigating
circumstances to these specific factors. . . . Any mitigating circumstance may
outweigh all the aggravating factors.”
       The court decided these instructions were duplicative of CALJIC No. 8.85,
factor (k), which required the jury to consider: “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 referred to the
portion of CALJIC No. 8.88 that instructed the jury, “you are free to assign
whatever moral or sympathetic value you deem appropriate to each and all of the
various factors you are permitted to consider.” The latter instruction also told the
jury that the weighing process is not “a mere mechanical counting of factors on
one side of an imaginary scale, or the arbitrary assignment of weights to any of
them.” (Ibid.)
                                           67
       Defendant argues that the instructions given did not inform the jury that just
one mitigating circumstance can be sufficient to justify a sentence of life without
the possibility of parole. As he points out, we have approved instructions making
that point. (E.g., People v. Anderson (2001) 25 Cal.4th 543, 599; People v.
Sanders (1995) 11 Cal.4th 475, 557.) The Attorney General responds that we
have never required such an instruction to be given and have held that “CALJIC
No. 8.85 is both correct and adequate,” and that “CALJIC No. 8.88 properly
instructs the jury on its sentencing discretion and the nature of its deliberative
process.” (People v. Valencia (2008) 43 Cal.4th 268, 309, 310.) Here, the court
did not abuse its discretion by relying on instructions that were standard at the
time of trial. There is no constitutional requirement that the jury be told a single
mitigating factor may be enough to support its decision. The court’s instructions
left ample room for counsel to argue that any one factor may be sufficient to
justify life without the possibility of parole, and counsel pressed that point in his
closing argument.

           7. Asserted Repetition of Guilt Phase Instructional Error
       Defendant contends the court repeated three guilt phase instructional errors
at the penalty phase.34 First, he claims he was prejudiced because the jury
received a written copy of CALJIC No. 2.71.7, advising the jury to consider “an
oral statement of [intent, plan, motive or design] . . . made by the defendant before
the offense” with caution. There was no objection below, and defendant shows no
impairment of a substantial right. (§ 1259.) He repeats the argument we have
rejected in part II.B.10.d., ante, page 41: That the instruction improperly applied


34     He asserts violation of his right to a reliable penalty determination under
the Eighth and Fourteenth Amendments.


                                          68
to John Hodges’s statement, reported by Eric Banks, that defendant had said he
did not want to kill McDade. Defendant argues that his penalty phase defense
centered on the claim that he shot McDade only because he feared and felt
pressure from the Hodges brothers. As we have noted, however, there is no reason
to think that extra “caution” would have influenced the jurors’ consideration of
Banks’s testimony. Defendant’s own recorded statements to the police
emphasized that he had not wanted to kill McDade, and Terry Hodges’s
description of the crime to Daryl Leisey conveyed the same impression.
       Next, defendant contends the court should have given a duress instruction
at the penalty phase. The court refused counsel’s request for one, saying “there’s
no more evidence to support it than there was in the guilt phase.” The court was
correct. As discussed in part II.B.8, ante, pages 34-35, there was no guilt phase
evidence supporting a conclusion that defendant shot McDade because of an
imminent threat against his life. Defendant claims Nicholas’s penalty phase
testimony provided additional support. It did not. The psychologist’s testimony
merely tended to show that defendant was susceptible to manipulation and
intimidation, not that there was any actual duress.
       Finally, defendant argues that the court erroneously gave the jury a version
of CALJIC No. 3.16 to the effect that the Hodges brothers and Akens were
accomplices as a matter of law. No objection was made, and defendant cannot
show that this instruction had an impact on his substantial rights at the penalty
phase. (§ 1259.) For the reasons stated in part II.B.10.e., ante, pages 41-42, the
instruction was helpful to the defense with regard to the Hodges brothers, and
defendant’s admissions left no doubt that they were accomplices, not perpetrators
of the murder. Defendant contends Akens took responsibility for the threat against
Moten in the classroom and the drive-by shooting, and, thus, the instruction
erroneously cast defendant in the role of perpetrator. However, the accomplice
                                         69
instruction would not have led the jury to believe that defendant was a perpetrator
as a matter of law with respect to these incidents. To the contrary, the court
modified the penalty phase instruction to state that the rule requiring corroboration
of Akens’s statements applied “to the extent they incriminate [defendant].” Thus,
the instruction aided the defense.

           8. Denial of Automatic Modification Motion
       The trial court stated its reasons on the record for denying the motion for
modification of the verdict mandated by section 190.4, subdivision (e). “In ruling
on the application to modify, the trial court does not make an independent penalty
determination, but instead reweighs the evidence of aggravating and mitigating
circumstances and then determines whether the weight of the evidence supports
the jury verdict.” (Wallace, supra, 44 Cal.4th at p. 1096.) Here, the court
primarily emphasized three circumstances: Defendant took advantage of his
relationship with McDade, who had treated him with care and concern; defendant
committed an execution-style murder knowing the impact it would have on a
young family; and McDade himself was a relatively young man.
       Defendant does not take issue with the court’s reliance on these factors.
Instead, he claims the court erred by giving aggravating weight to other factors
that can only be mitigating and by failing to consider certain mitigating
evidence.35 The Attorney General concedes that the court erred by weighing in
aggravation whether the victim was a participant in or consented to the homicide
(§ 190.3, subd. (e)), and whether defendant reasonably believed his conduct was
justified or extenuated (§ 190.3, subd. (f)). However, he urges the errors were


35    Defendant cites his rights to a reliable penalty determination under the
Eighth Amendment and to due process under the Fourteenth Amendments.


                                         70
harmless as they were in People v. Hamilton (1989) 48 Cal.3d 1142, 1186-1187.
We agree. As in Hamilton, the court stressed that the murder was “brutal and
cold-blooded” (id. at p. 1186), “the mitigating evidence was comparatively weak”
(id. at pp. 1186-1187), and “the court did not deem the issue of penalty to be a
close on” (id. at p. 1187). A proper weighing of mitigating factor (e) and (f)
evidence would not have led to leniency. The aggravating evidence on which the
court placed primary and proper weight was substantial.
       Defendant also claims the court gave improper aggravating effect to
defendant’s positive family atmosphere and support, which was extenuating
evidence under factor (k). Not so. The court specifically stated that it was
considering this evidence in mitigation, and its observation that defendant “should
have been the product of a loving and caring family” is reasonably understood as a
comment on the weight of this mitigating evidence. Defendant faults the court for
not mentioning the environment of his youth in Los Angeles and the difficult
circumstances his family faced there. Similarly, defendant complains that the
court did not mention his positive personality traits. However, “[i]n ruling on an
automatic motion to modify a death verdict, a trial court need not recount details
of, or identify, all evidence presented in mitigation or in aggravation. [Citation.]
The trial court’s only obligation was to provide a ruling that allows effective
appellate review. [Citation.] The trial court here did: It identified what it viewed
as mitigating and aggravating evidence of significance to its ruling, and it engaged
in the requisite weighing.” (People v. Romero (2008) 44 Cal.4th 386, 427.)
       Defendant further objects that the court refused to consider his youth as a
mitigating factor. On this subject, the court said: “The age of the defendant at the
time of the crime, that could in some jurors’ or fact finders’ minds be a mitigating
factor because the defendant was relatively young at the time of the offense, but I
don’t find this to be of — the defendant’s age at the time of the offense to
                                         71
constitute a mitigating factor. At best, it’s a neutral factor.” These comments
show that the court understood that a defendant’s youth can be a mitigating factor.
In reweighing the evidence before the jury, however, the court concluded that its
impact was negligible. We note that the court was not required to find that
evidence of youth was actually mitigating in light of all the evidence. (Wallace,
supra, 44 Cal.4th at pp. 1095, 1097.) Defendant points out that the Eighth
Amendment prohibits the execution of persons under the age of 18. (Roper v.
Simmons (2005) 543 U.S. 551, 568 (Roper).) Therefore, he contends the
circumstance that a capital defendant is only 18 years old at the time of the murder
must always be considered mitigating. This conclusion does not flow from
Roper’s reasoning, which recognized that 18 is necessarily a somewhat arbitrary
line to draw, given human variability. (Id. at p. 574.)
       In any event, our review of the trial court’s ruling is independent.
(Wallace, supra, 44 Cal.4th at p. 1096.) Considering all the evidence before the
jury, including defendant’s youth and childhood environment, we cannot say the
penalty verdict is unsupported. The aggravating evidence of the McDades’
supportive relationship with defendant, as well as the brutality of the murder he
committed with full knowledge of its impact on their family, was sufficient to
sustain the verdict.

           9. Cruel and Unusual Punishment
       In his supplemental brief, defendant contends his death judgment
constitutes cruel and unusual punishment in violation of the federal and state
Constitutions in light of his youth and intellectual shortcomings. With respect to
the former, defendant acknowledges he was 18 years old at the time of the killing
here. “We previously have rejected the argument that a death penalty scheme that
treats differently those who are 18 years of age and older, and those younger than


                                         72
18, violates equal protection. [Citations.] Indeed, the United States Supreme
Court has concluded the federal Constitution draws precisely this line, prohibiting
the death penalty for those younger than 18 years of age, but not for those 18 years
of age and older.” (People v. Gamache (2010) 48 Cal.4th 347, 405.)
       Defendant suggests that Roper, supra, 543 U.S. 551 and Atkins v. Virginia
(2002) 536 U.S. 304, “stand for the principle that it is cruel and unusual, by
evolving standards of decency, to execute someone who is over 18, but whose
brain functions at a level equivalent to a juvenile.” Defendant misreads those
cases. In adopting a categorical rule, Roper expressly acknowledged that “[t]he
qualities that distinguish juveniles from adults do not disappear when an
individual turns 18. By the same token, some under 18 have already attained a
level of maturity some adults will never reach. . . . The age of 18 is the point
where society draws the line for many purposes between childhood and adulthood.
It is, we conclude, the age at which the line for death eligibility ought to rest.”
(Roper, at p. 574.) Atkins adopted a similar categorical rule prohibiting the
execution of “mentally retarded” persons. (Atkins, at pp. 313-321.)
       Roper teaches that a death judgment against an adult is not unconstitutional
merely because that person may share certain qualities with some juveniles.
Likewise, nothing in Atkins suggests that the execution of someone who is neither
a juvenile nor developmentally disabled may nevertheless be unconstitutional
based on a showing that person is actually immature. (Cf. People v. Mendoza
(2016) 62 Cal.4th 856, 908-912 [rejecting claim that Roper and Atkins precluded a
death judgment against mentally ill persons].)
       In support of his claim, defendant asserts his IQ is 75, he had “high levels
of paranoia and suffered from symptoms of schizophrenia,” he had trouble
reading, and he performed poorly in school. He claims these factors made him
prone to manipulation and impulse. To the extent defendant suggests he is entitled
                                          73
to relief on a showing less than that required in Atkins, the suggestion is not well-
taken. In any event, “[p]ostconviction claims of mental retardation should be
raised by petition for writ of habeas corpus . . . .” (In re Hawthorne (2005) 35
Cal.4th 40, 47.) After Atkins, the Legislature enacted section 1376. To make out a
prima facie case, a petitioner must file a declaration “by a qualified expert stating
his or her opinion that the defendant is a person with an intellectual disability”
(§ 1376, subd. (b)(1)), defined as “the condition of significantly subaverage
general intellectual functioning existing concurrently with deficits in adaptive
behavior and manifested before 18 years of age” (§ 1376, subd. (a)). (See In re
Hawthorne, at pp. 47-48.) Defendant makes an Atkins claim in his separate habeas
corpus petition, which is currently pending before us. (See In re Powell, S208154
[Claim XII].) We reject defendant’s claim on direct appeal without prejudice to
resolution of the issue in his separate habeas petition.

           10. Challenges to the Death Penalty Statute
       Defendant raises a number of challenges to the constitutionality of
California’s death penalty statute that we have consistently rejected. He argues
that all of these flaws, considered together, amount to a “wanton and freakish”
system that randomly selects some murderers for the death penalty. (See Furman
v. Georgia (1972) 408 U.S. 238, 310 (conc. opn. of Stewart, J.).) We decline to
deviate from settled precedent.
       “ ‘The death penalty law adequately narrows the class of death-eligible
defendants. [Citations.]’ (People v. Boyce (2014) 59 Cal.4th 672, 723 (Boyce);
see also People v. Linton (2013) 56 Cal.4th 1146, 1214 (Linton).)” (People v.
Salazar (2016) 63 Cal.4th 214, 255 (Salazar).)
       “ ‘ “The sentencing factor of ‘circumstances of the crime’ (§ 190.3, factor
(a)) is not unconstitutionally vague and does not result in the arbitrary and


                                          74
capricious imposition of the death penalty.” [Citation.]’ (People v. Scott (2015)
61 Cal.4th 363, 407 []; see also People v. Merriman (2014) 60 Cal.4th 1, 105–
106.)” (Salazar, supra, 63 Cal.4th at p. 255.)
       “Except for evidence of other crimes and prior convictions, jurors need not
find aggravating factors true beyond a reasonable doubt; no instruction on burden
of proof is needed; the jury need not achieve unanimity except for the verdict
itself; and written findings are not required.” (People v. Johnson (2015) 60
Cal.4th 966, 997; see People v. Sánchez (2016) 63 Cal.4th 411, 487.) “Nor is the
death penalty unconstitutional ‘for failing to require proof beyond a reasonable
doubt that aggravating factors . . . outweigh the mitigating factors . . . .’ ” (Simon,
supra, 1 Cal.5th at p. 149; see People v. Case (2018) 5 Cal.5th 1, 50.)36
“ ‘ “Intercase proportionality review is not required.” [Citation.]’ ” (Salazar,
supra, 63 Cal.4th at p. 257; see People v. Scott, supra, 61 Cal.4th at p. 408; People
v. Boyce, supra, 59 Cal.4th at p. 725.)
       “The jury may properly consider evidence of unadjudicated criminal
activity under section 190.3, factor (b) (People v. Whisenhunt [(2008)] 44 Cal.4th
[174,] 228), [and] jury unanimity regarding such conduct is not required (People v.
Kelly (2007) 42 Cal.4th 763, 800. . . .” (People v. Lee (2011) 51 Cal.4th 620,
653.) The death penalty statute is not unconstitutional because it allows the

36     In his supplemental brief, defendant asserts we should reconsider our
precedents in light of Hurst v. Florida (2016) 577 U.S. ___ [136 S.Ct. 616], which
found unconstitutional Florida’s death penalty law. We have rejected this claim,
noting that “[t]he California sentencing scheme is materially different from that in
Florida. Here, a jury weighs the aggravating and mitigating circumstances and
reaches a unanimous penalty verdict that ‘impose[s] a sentence of death’ or life
imprisonment without the possibility of parole. (Pen. Code, § 190.3; see id., §
190.4.) Unlike Florida, this verdict is not merely ‘advisory.’ ” (People v. Rangel
(2016) 62 Cal.4th 1192, 1235, fn. 16; see People v. Henriquez (2017) 4 Cal.5th 1,
45.)


                                          75
consideration of juvenile criminal conduct in aggravation. We have repeatedly
rejected this claim, observing that Roper “says nothing about the propriety of
permitting a capital jury, trying an adult, to consider evidence of violent offenses
committed when the defendant was a juvenile.” (People v. Bramit (2009) 46
Cal.4th 1221, 1239; see People v. Lee (2011) 51 Cal.4th 620, 649.) As we
recently explained in People v. Rices (2017) 4 Cal.5th 49: “Defendant did not
receive the death penalty for his juvenile crimes. He received the death penalty
for the execution-style murders of two unresisting robbery victims committed
when he was an adult. No legal principle prohibits admitting evidence of his
violent juvenile conduct on the question of what the punishment for those crimes
should be.” (Id. at p. 87.)
       “ ‘The use of the words “ ‘extreme’ ” in section 190.3, factors (d) and (g),
and “ ‘substantial’ ” in factor (g), does not act as a barrier to the consideration of
mitigating evidence in violation of the Fifth, Sixth, Eighth, and Fourteenth
Amendments.’ (People v. Linton, supra, 56 Cal.4th at p. 1216.)” (People v. Cage
(2015) 62 Cal.4th 256, 296 (Cage).)
       “ ‘ “ ‘ “[T]he statutory instruction to the jury to consider ‘whether or not’
certain mitigating factors were present did not impermissibly invite the jury to
aggravate the sentence upon the basis of nonexistent or irrational aggravating
factors.” ’ ” ’ (People v. Edwards (2013) 57 Cal.4th 658, 766; accord, People v.
Linton, supra, 56 Cal.4th at p. 1216.) ‘There is no constitutional requirement that
the jury be instructed regarding which of the statutory factors in section 190.3 are
aggravating, which are mitigating, and which could be either aggravating or
mitigating.’ (People v. Merriman [, supra,] 60 Cal.4th [at pp.] 106–107.)” (Cage,
supra, 62 Cal.4th at p. 296.)
       “ ‘ “The California death penalty scheme does not violate equal protection
by treating capital and noncapital defendants differently.” [Citation.] “. . .
                                           76
California’s death penalty scheme does not violate international law and norms.”
[Citation.]’ (People v. Scott, supra, 61 Cal.4th at p. 408; see also People v. Boyce,
supra, 59 Cal.4th at p. 725.)” (Salazar, supra, 63 Cal.4th at p. 257.)

            11. Cumulative Prejudice
       Defendant contends the cumulative impact of errors at both phases of his
trial resulted in fundamental unfairness in violation of the due process clauses of
the state and federal Constitutions. We disagree. The guilt phase was complicated
by defendant’s belated decision not to testify. He was fully aware of the
consequences of that decision, however, and no unfairness resulted. Any errors,
actual or arguable, were minor. The claim of cumulative prejudice must be
rejected.
                                 III. DISPOSITION
       We affirm the judgment in its entirety.


                                                      CORRIGAN, ACTING C. J.


WE CONCUR:

CHIN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
HUFFMAN, J.*
HULL, J.**

__________________________
*     Associate Justice of the Court of Appeal, Fourth Appellate District, Division
One, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

** Associate Justice of the Court of Appeal, Third Appellate District, assigned
by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

                                         77
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Powell
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S043520
Date Filed: September 17, 2018
__________________________________________________________________________________

Court: Superior
County: Sacramento
Judge: James I. Morris

__________________________________________________________________________________

Counsel:

Neoma Kenwood and Kat Kozik, under appointments 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, Michael P. Farrell, Assistant Attorney General, Stephanie A. Mitchell, Sean
M. McCoy and Paul E. O’Connor, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Neoma Kenwood
PMB #414
1569 Solano Avenue
Berkeley, CA 94707
(510) 528-4775

Paul E. O’Connor
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 210-7750
