Filed 5/31/18




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                            S095076
           v.                        )
                                     )
RICHARD PENUNURI,                    )
                                     )                     Los Angeles County
           Defendant and Appellant.  )                   Super. Ct. No. BA189633
____________________________________)


        A jury convicted defendant Richard Penunuri of the first degree murder of
Brian Molina, Michael Murillo, and Jaime Castillo (Pen. Code, § 187, subd. (a);
all statutory references are to this code unless otherwise specified) and conspiracy
to commit the murder of Castillo (§ 182). He was also found guilty of the second
degree robbery of Shawn Kreisher and Randy Cordero (§ 211) and assault with a
firearm on Carlos Arias (§ 245). The jury found true the special circumstances of
multiple murder (§ 190.2, subd. (a)(3)) and witness murder (§ 190.2,
subd. (a)(10)). The jury also found true the enhancement that Penunuri personally
used a firearm with respect to the robbery of Cordero, the assault with a firearm on
Arias, and the murders of Molina and Murillo. (Former § 12022.5, subd. (a)(1).)
At the penalty phase, the jury returned a verdict of death. The trial court denied
the automatic motion to modify the verdict (§ 190.4, subd. (e)) and sentenced
Penunuri to death for the three murders.




                SEE CONCURRING AND DISSENTING OPINION
        This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in
its entirety.
                                       I. FACTS

        A. Guilt Phase
        Penunuri was tried jointly with codefendants Joseph Castro, Jr., Arthur
Bermudez, and Alfredo Tapia. Before the guilt phase began, Penunuri pleaded not
guilty to all charges.

            1. Prosecution Evidence

                a. Ralphs Parking Lot Incident
        Randy Cordero was driving Shawn Kreisher and David Bellman to the
Ralphs market in Whittier on the night of October 23, 1997. The three men
parked in the Ralphs parking lot, exited the vehicle, and began to walk toward the
store. Several men exited a white Cadillac that was later found to be registered to
Alejandro Delaloza. They approached Cordero, Kreisher, and Bellman.
        A fight ensued, during which a man, wearing black gloves and holding a
knife, punched Bellman. Another man, who was the largest member of the group
and was wearing a large dark jacket, demanded money from Kreisher and
Cordero. Kreisher gave the man $40 because he thought the man had a gun.
Cordero refused, saying he had no money with him. Someone from the Cadillac
group yelled, “Get his keys.” Cordero returned to his car and pulled a baseball bat
out of his trunk. A man then yelled, “Blast ’em” or “Blast his ass,” and a man
walked toward Cordero, Kreisher, and Bellman, pulled out a gun, and cocked the
trigger. Cordero identified the gun as a nine-millimeter handgun. Cordero,
Kreisher, and Bellman ran to a nearby intersection where several police officers
were gathered and explained what had happened. When Cordero returned to his
vehicle, his duffle bag was missing.


                                          2
       Kreisher identified Penunuri from a photographic display as the man who
took his money and testified that the man who took his money was wearing a large
black jacket with a hood. Cordero also testified that Penunuri was the man who
took Kreisher’s money and that he was the man who displayed a handgun. He
further testified that Penunuri was wearing a long, bulky sports coat or jacket
during the altercation. He also testified that Delaloza was the man who punched
Bellman. Detective Greg Hamilton showed Cordero a couple of pairs of boxer
shorts found at Delaloza’s residence. Cordero identified the items as having been
inside his duffle bag before it went missing.
       Detective Mary Hanson interviewed Delaloza the day after the incident.
According to Hanson’s testimony, Delaloza said he and three friends had gone
into the Whittier Ralphs parking lot to use a pay phone. Delaloza said that he
came to the aid of a friend by hitting in the face one of the men his friend was
fighting and that he saw one man pull out a baseball bat from his car. Eventually
the three men Delaloza and his confederates had been fighting ran away, and
Delaloza claimed some of his friends may have picked up some possessions that
had dropped.
       Freddie Becerra, a former member of the East Side Whittier Cole Street
gang (sometimes referred to as the Cole Street gang), identified as fellow gang
members Penunuri, Delaloza, and Jaime Castillo, as well as codefendants Joseph
Castro, Jr., Arthur Bermudez, and Alfredo Tapia.

               b. Hornell Street Incident
       In the early hours of October 24, 1997, several hours after the Ralphs
parking lot incident, Luke Bissonnette and Carlos Arias were sitting and eating in
a car parked on Hornell Street near a house belonging to Luke’s grandfather.
Luke was a member of the East Side Whittier Cole Street gang. Luke got out of



                                          3
the car to smoke a cigarette and saw a white Cadillac approach and park on the
street in front of his grandfather’s house. Luke testified that Penunuri exited the
car, walked toward him, called Luke “Youngster” (Luke’s gang moniker),
identified himself as an “East Sider,” and said, “Get in the car.” Luke ran from the
driveway toward his grandfather’s house and hid in the backyard. Shortly after,
Luke heard his mother and Penunuri speaking outside but could not understand
their conversation.
       Roxanne Bissonnette, Luke’s mother, testified that she spent the night of
October 23 at her father’s house on Hornell Street. Early in the morning of
October 24, she heard some loud noises and looked outside. Through the window
she saw a white Cadillac and “bodies or heads” crossing the front yard. When she
opened the door, she saw Delaloza and Penunuri standing outside, with Penunuri
wearing a dark jacket. Penunuri asked her if she had seen Arias and said he
needed to talk to Arias and Luke. Roxanne Bissonnette warned Penunuri not to
touch her son.
       Luke testified that Delaloza was driving the white Cadillac and that
Penunuri, Castillo, and an unidentified woman were passengers. He identified all
four defendants in court and testified that he knew the three men as members of
the Cole Street gang.

                 c. Goodhue Street Incident
       After being denied entry to his grandfather’s house, Luke returned to the
front of the house and saw that everyone had left. He then ran to Laraine
Martinez’s house on Goodhue Street, where he was living at the time. When he
arrived, he joined Arias, his sister Laura Bissonnette, Brian Molina, and Michael
Murillo on the patio. Molina and Murillo were asleep when Luke arrived, and he
did not speak to them. Arias told Luke that he “almost got killed” because



                                          4
“Richard Penunuri had pulled out a gun and put it to his head.” After 20 minutes,
Luke, Laura, and Arias went inside. Laraine Martinez, her son Eric Martinez, her
daughter Monique Martinez, and Luke’s brother Shane Bissonnette were already
inside the house.
       About 20 minutes later, Luke heard about 10 gunshots and looked outside
through a window. Luke testified that he had “seen some figure running outside,
and [his] first action [sic] was, ‘fucking Dozer.’ ” Dozer was Penunuri’s gang
moniker. Luke went to the patio and found Murillo unresponsive with three bullet
holes in his body. He told his sister to call 911, then returned to the patio where he
heard moaning. He found Molina with a gunshot wound above the eye.
       Laraine testified that she heard a noise, “like a backfire,” as she was falling
asleep. She looked through the window and saw “more shooting — or bullets and
the flashes of light.” She jumped up, ran outside, and called 911. She heard Luke
and Shane Bissonnette yell the name Dozer.
       Several neighbors on Goodhue Street witnessed the aftermath of the
shooting. Matthew Walker, who looked out his window onto Goodhue Street after
hearing gunshots, saw a white Cadillac that was not usually parked on the street
and that appeared to be empty. Soon thereafter, he saw two men exit the backyard
of Laraine’s house and enter the Cadillac. The Cadillac then proceeded down
Goodhue Street at a slow speed until it was no longer in sight. He did not get a
clear look at the men. Two other neighbors testified to hearing gunshots and
seeing an older-model white Cadillac driving away shortly thereafter.
       Jaime Castillo lived with his uncle, Francisco Castillo, during this time.
Francisco testified that he saw Jaime enter their house the morning of October 24
around 7:00 a.m., just as Francisco was leaving for work. Jaime had not spent the
previous night at home. When Francisco entered his van to go to work, he found
Penunuri asleep in his van and gave him a ride home.

                                          5
                d. Police Investigation
       On the afternoon of October 24, Officer Jeff Piper executed a search
warrant at Delaloza’s residence and found a black jacket, a black long-sleeve
sweatshirt with a hood, a dark blue long-sleeve sweatshirt with a hood, a small
black knife with a belt clip, a pair of black cotton gloves, a plastic box of nine-
millimeter ammunition with some bullets missing, keys to the white Cadillac
parked in front of the residence, and some men’s briefs and socks inside a trash
can.
       Later that day, Piper arrested Penunuri at his residence and seized a large
black jacket from inside Penunuri’s bedroom. Ruben Pozo, Penunuri’s uncle, was
present at the arrest. He spoke with Officer Terence McAllister, who testified that
Pozo said Penunuri arrived home between 7:00 and 7:30 that morning. When
Pozo testified at trial, he denied making this statement to McAllister and said he
told McAllister that Penunuri was in their shared bedroom when he woke up
around 5:30 a.m. for work that day.
       Richard Catalani, a firearm examiner, testified that all 11 expended casings
found at the Goodhue Street location were fired from the same nine-millimeter
firearm. Catalani further testified that the expended casings matched the live
ammunition found at Delaloza’s house. He explained that a live round of
ammunition can be marked by the barrel of a gun after insertion into the chamber,
by the hook that pulls it out of the chamber, and by the ejector pin that tips the
cartridge out of the firearm. After comparing the markings on the live ammunition
with the expended casings recovered from the scene, Catalani concluded they
“were all worked through the action of the same firearm.” He also testified that
there were the variety of brands of expended casings found at the Goodhue Street
location, similar to a variety of brands of live rounds found at Delaloza’s
residence.


                                           6
                 e. Recorded Jail Conversations
        Penunuri’s mother, Maria Penunuri, testified about two conversations she
had with her son while he was in jail following the October 23 and 24 incidents.
These conversations were recorded, and a tape was played to the jury; the jury was
also supplied with a transcript of the recording. In the first conversation, recorded
on July 19, 1998, Maria said she had “a note [she] wanted to show.” Penunuri
assured her the conversation was not recorded, but she said she did not want to
take a chance. Penunuri said, “I’ll tell the investigator too . . . I was messing
around with . . . so and so . . . but . . . I kept it a secret because . . . she . . . I’ll say
she married too [sic].” After further discussion, Maria said she “asked [Jessie and
Eddie] if they could get someone . . . and they’re like well who? . . . And I go well
any . . . I go even Aunt Laurie . . . ya know for her . . . you are to say she was with
you . . . .” Maria claimed not to remember any of the taped conversation and did
not recall whether she passed a note to her son during the visit.
        The second conversation was recorded on August 15, 1998. Penunuri said
Castillo was with them at Ralphs and was probably with Delaloza later that night
“cause look at where he’s at . . . he died . . . someone killed him.” Penunuri also
said he was dropped off between 2:50 a.m. and 3:00 a.m. that night. Maria said
that “[Delaloza] better find a way to clean this shit up too.” At trial, she testified
she did not recall what she meant by that statement.

                 f.     Conspiracy to Commit Murder and Murder of Jaime Castillo
        Jesus Marin, testifying under a grant of immunity, described a series of
events leading to Jaime Castillo’s murder. Marin was associated with members of
the East Side Whittier Cole Street gang, although he was not a member himself.
He lived with his wife, Tracie McGuirk, their two children, and his wife’s friend
Carmen Miranda in an apartment in Whittier.




                                               7
       Codefendant Castro moved into Marin’s garage in December 1997. He
stayed there through the beginning of January 1998 and developed a relationship
with Miranda. During this time, several members of the gang would hang out and
party in Marin’s garage. Members of the gang also phoned the apartment; the
callers included codefendant Bermudez, codefendant Tapia, and Penunuri. Marin
accepted the calls and spoke with Penunuri occasionally. The two would chat
briefly, then Penunuri would ask if the “homies” were there. As discussed further
below, it was on such phone calls that discussion of the silencing of Castillo
occurred.
       On January 14, 1999, Marin drove Castro, Bermudez, Tapia, and Castillo
into the San Gabriel Mountains, north of the City of Azusa. Marin stopped the car
at mile marker 22.27, and everyone exited the car and started doing drugs. While
away from the group, Tapia confided in Marin that he would not shoot Castillo.
Marin and Bermudez returned to the car. While in the car, Bermudez said that
“[Castro’s] gonna shoot ’em both.” From the rearview mirror, Marin watched
Tapia walk toward Castro and Castillo and stand in front of Castillo. Marin then
saw Castro walk behind Castillo and shoot him. Castillo dropped to the ground.
Castro and Tapia returned to the car, and the four drove back to Marin’s
apartment.
       They arrived at Marin’s apartment between 3:00 a.m. and 4:00 a.m. Castro
removed a semiautomatic .22- or .25-caliber gun, cleaned it, and placed it on the
refrigerator in Marin’s apartment. A few hours later, he told Miranda that he shot
Castillo. Marin was shaking when he entered his bedroom and proceeded to tell
McGuirk that Castillo had been shot.
       Several weeks after the shooting, Bermudez visited Marin at his apartment
and threatened him because he was a “rat.” Fearing for his safety, Marin and his
family moved out of the apartment in March 1999.

                                         8
       The parties stipulated that Castillo “is the same individual who Mr. Luke
Bissonnette claimed he saw the evening of October 23rd, 1997, or the early
morning hours of October 24th, 1997.”
       Department of Transportation workers found Castillo’s body in Azusa
Canyon the morning of January 15, 1998. A live .22-caliber shell was found
within a few feet of Castillo’s body. Castillo died of a single gunshot wound to
the head.
       Telephone records showed that Penunuri called Marin’s apartment from
county jail seven times between January 5, 1998 and January 15, 1998. The calls
ranged from one minute to 31 minutes. The records also showed a series of
telephone calls from Penunuri to Marin’s apartment between January 15, 1998 and
January 25, 1998. We discuss the content of these calls below.
       Detective Curt Levsen was raised in Whittier and was familiar with the East
Whittier Cole Street gang. Levsen knew Penunuri, Castro, Bermudez, and Tapia
to be members of that gang. Ruben Pozo also knew Penunuri to be a member of
the Cole Street gang.

            2. Defense Evidence

               a. Impeached Testimony of Key Witnesses
       On cross-examination, Cordero admitted that the only distinctive feature of
the black jacket he identified as Penunuri’s was its color. He also admitted lying
under oath about the facts of the case. Cordero further admitted to his prior
convictions for forgery and attempted strong-arm robbery and his previous
association with members of the Pagans gang in Whittier.
       On cross-examination, Luke Bissonnette admitted to drug use the day of the
murders. He also admitted he did not know if Penunuri, Delaloza, and Castro
were members of the Cole Street gang. The defense also raised questions about



                                         9
whether Luke could accurately observe from a distance, in the dark, from behind,
and for only several seconds the person fleeing from the Goodhue Street residence
after the murders of Molina and Murillo. An eyewitness identification expert,
Kathy Pezdak, testified that when a witness expects to see a particular person but
does not get a clear look, the expectation could result in an incorrect identification.
In her opinion, Luke’s eyewitness identification testimony was “[v]ery
unreliable.”
       During closing argument, defense counsel argued Marin, McGuirk, and
Miranda did not provide credible testimony regarding Penunuri’s phone calls.
Counsel also said that even if Marin was to be believed, Penunuri did not tell
Marin to kill Castillo, only to stop Castillo from testifying.

                b. Evidence of Misidentification of Penunuri as the Perpetrator of
                   the Molina and Murillo Homicides
       The defense presented evidence that Delaloza was likely the perpetrator of
the Molina and Murillo homicides. Delaloza was wearing similar clothes to
Penunuri on October 23 and 24, and a black jacket and two dark sweatshirts were
found at Delaloza’s house the next day. The black jacket found at Penunuri’s
residence did not have any gunshot residue; the black jacket and sweatshirts at
Delaloza’s home were never tested.
       A firearms expert, Lawrence Baggett, testified that firing 11 rounds from a
nine-millimeter pistol should deposit gunshot residue on the hands of the person
firing the gun. He further testified that he would expect residue to be found on the
fabric of a jacket that extended past the gunman’s knuckles. Penunuri put on the
black jacket found in his room in front of the jury. Penunuri demonstrated that the
jacket sleeves extended almost to his fingers when his hands were outstretched.
Debra Kowal, a Los Angeles County Department of Medical Examiner-Coroner
criminalist, conducted a gunshot residue test on samples taken from the inside and


                                          10
outside surfaces of Penunuri’s jacket sleeves and pockets. She found no particles
of gunshot residue.

           3. Rebuttal Evidence
      On May 21, 1999, wiretaps were placed on the telephones at the homes of
Marin, Castro, Bermudez, and Tapia, and on the jail telephones of Penunuri and
Delaloza. The homes of Castro, Bermudez, and Tapia were searched that same
day. Several conversations were recorded from Bermudez’s telephone calls.
Bermudez said that “we can do [Marin] right away.” In another phone
conversation, he said he was sleeping with his shoes on so he could run if the
police came for him.

      B. Penalty phase

           1. Prosecution Evidence

               a. Prior Assault with a Firearm
      On May 20, 1997, R.J. Uzel was shot after using a pay phone in a
McDonalds. According to the testimony of Debra Recio, who had been with Uzel
at the time of the shooting, the word “on the street” was that Dozer was the person
who shot Uzel. We describe this incident at greater length below.

               b. Victim Impact Evidence
      The prosecution presented the testimony of various family members
concerning the impact on their lives of the murders of Molina, Murillo, and
Castillo. The jury heard testimony from Molina’s father, mother, brothers, aunt,
and godmother, expressing that his death was “heartbreaking” and resulted in a
void in their lives. The prosecution played a videotape about Murillo’s life and
presented testimony from Murillo’s grandmother, father, mother, sister, two aunts,
cousin, and godmother concerning the impact of his death on the family. The
prosecution also presented the testimony of Castillo’s father, stepmother, younger


                                        11
brother, two aunts, and cousin, who testified to the grief and anger caused by his
death.

             2. Defense Evidence

                 a. Assessment of Penunuri’s Mental Health Issues
         The defense called two doctors to testify about Penunuri’s mental state. Dr.
Cynthia Stout, a forensic examiner with a doctorate in psychology, conducted a
clinical interview with Penunuri and administered a number of psychological tests.
She testified that there was a discrepancy between her observations from the
interview and the test results. During the interview, she found Penunuri to be
social and friendly with normal responses and reactions. The test results, by
contrast, showed that Penunuri had elevated results on tests measuring for
paranoia, schizophrenia, and mania. The results pointed to a distortion in his
personality resulting from use of large amounts of methamphetamine combined
with other substances for about two years. Dr. Stout testified that on the night of
October 23, 1997, Penunuri had used about two grams of methamphetamine,
consumed at least 24 beers, and smoked marijuana.
         Dr. James Rosenberg, a psychiatrist, testified on the effects of
methamphetamine and the subsequent violent behavior its use may cause. He
described the short-term symptoms, which include elevated mood and energy
level, feelings of grandiosity and euphoria, decreased appetite, and decreased need
for sleep. Dr. Rosenberg testified that methamphetamine use can also cause
permanent brain damage and frontal lobe brain syndrome. Brain damage can lead
to changes in personality and the development of psychotic symptoms. Damage to
the frontal lobe in particular can cause problems with judgment, impulse control,
and the ability to control aggressive feelings.




                                           12
               b. Character Witnesses
       The defense provided testimony from Penunuri’s close friends and family.
George Garcia, Penunuri’s cousin and best friend, testified that he saw a change in
Penunuri as a result of his use of methamphetamine. He said that prior to
Penunuri’s drug use, he was the “light of the room,” down-to-earth, funny, and
caring. He said that Penunuri had been using methamphetamine every day and
believed that Penunuri had used methamphetamine on October 23 or 24, 1997,
because he had received a large amount before that weekend. As someone who
formerly used methamphetamine, Garcia testified that “it makes you do things you
wouldn’t do in a normal state of mind.”
       Penunuri’s brother Matthew testified that Penunuri helped raise him and
was never mean to him. He said that he saw Penunuri get involved in gang life
and drugs, but that Penunuri kept him away from that lifestyle. Matthew testified
that he did not believe Penunuri would kill someone.
       Lupe Villalba, Penunuri’s great-aunt, knew Penunuri his entire life. She
testified that he was loving, kind, and respectful, and that he had a good
relationship with his family.
       Rita Garcia, Penunuri’s aunt, testified that Penunuri was loving, funny, and
respectful, and that he always made them laugh. She said she loved him like a
son.
       Frances Martinez, Penunuri’s grandmother, said Penunuri respected her and
was a kind, compassionate boy. She said she wanted to see him live.
       Josi Penunuri, Penunuri’s grandmother, testified that Penunuri was a
wonderful boy. She said she loved him and did not want to lose him.
       Maria Penunuri testified that Penunuri was full of life and acted as a big
brother to his brother and cousins. He was always laughing and joking around,
and showed his family a lot of love. She testified she did not believe Penunuri


                                          13
was capable of committing the crimes of which he has been found guilty. She
admitted she created an alibi for the period when the murder occurred because she
knew that Delaloza was responsible, and she said she was trying to protect her son
from being wrongfully convicted.
                                II. PRETRIAL ISSUE
       The trial court granted the prosecution’s request to remove prospective
juror S.M. for cause. Penunuri claims the trial court erred, resulting in a denial of
his state and federal constitutional rights to due process, equal protection, an
impartial jury, and a fair and reliable penalty determination.
       S.M.’s questionnaire revealed that he was married with two children and
worked as a Presbyterian minister. Asked to describe his views on the death
penalty, he wrote: “They are in flux –– away from its use as presently practiced in
this country.” Asked his “general feelings regarding the death penalty,” he wrote:
“I find myself having increasing difficulty in its use today. I have read and heard
of too many who having received this ultimate penalty were found not to have
received all possible consideration.” Asked about whether the death penalty
serves a purpose, he wrote: “I’m honestly not sure. Vengeance (maybe) but
deterrent (?)” Asked “what types of cases justify the death penalty to you,” he
wrote: “I’m not sure that any do. I know how I feel about serious, brutal crimes
against people (esp. those I may love!) but what I feel isn’t necessarily
justification for what is right.” Asked about the “type of things” that he “would
want to know about a defendant before deciding between death or life without the
possibility of parole,” he wrote: “At this point I cannot honestly say. The
possibility of being involved with making such a decision feels staggering at the
moment.” He also indicated on the questionnaire that the death penalty was
applied disproportionately to the poor and to those “more marginalized by their
race or ethnicity in our society.”

                                          14
       S.M. further indicated on the questionnaire that he did not belong to any
group advocating the abolition of the death penalty and that his views on the death
penalty were based on a religious conviction. As to whether his religious
conviction would affect his “ability to render a verdict of death if the facts
suggested that this was the appropriate penalty,” he did not check either the “Yes”
or “No” boxes provided in the questionnaire, but wrote in “Not sure.”       He
indicated that he did not feel that California should have the death penalty today.
Asked if he had such a conscientious opinion concerning the death penalty that he
“would automatically in every case, vote for a verdict of life imprisonment
without the possibility of parole and under no circumstances vote for a verdict of
death,” he replied: “I don’t think so.” Finally, he indicated that death was worse
for a defendant than life without parole because “this is the end –– no opportunity
for change or for justice to make for renewal in defendant or victim’s family or
friends.”
       During voir dire, the trial court asked S.M.’s venire panel as a group if
there was any of them who could “under no circumstances; no matter what the
evidence was; and no matter what the factors in aggravation were, ever vote for a
penalty of death.” After several prospective jurors raised their hands, S.M. said:
“I should probably include myself, your Honor.” Later in the voir dire of the same
panel, defense counsel asked if any prospective jurors felt they shouldn’t serve as
a juror because they would be unable to consider either the alternative of the death
penalty or the alternative of life without parole if the defendant was convicted of
murder with special circumstances. Several prospective jurors sought to
disqualify themselves at this point, but S.M. did not.
       At the conclusion of this panel’s voir dire, the trial court granted the
prosecutor’s request to excuse S.M. for cause. Neither the prosecution nor the trial



                                          15
court commented on the reasons for the excusal, and defense counsel did not
object. S.M. was not individually voir dired.
       It is well established that opposition to the death penalty does not by itself
disqualify a juror from sitting on a capital case. (Witherspoon v. Illinois (1968)
391 U.S. 510, 522.) A juror is validly subject to removal for cause only when “the
juror’s views would ‘prevent or substantially impair the performance of his duties
as a juror in accordance with his instructions and his oath.’ ” (Wainwright v. Witt
(1985) 469 U.S. 412, 424.) “[I]n applying this standard, reviewing courts are to
accord deference to the trial court. . . . [W]hen there is ambiguity in the
prospective juror’s statements, ‘the trial court, aided as it undoubtedly [is] by its
assessment of [the venireman’s] demeanor, [is] entitled to resolve it in favor of the
State.’ ” (Uttecht v. Brown (2007) 551 U.S. 1, 7.)
       Several of S.M.’s responses to key questions were ambiguous. In the
questionnaire, he said he was “not sure” whether his religious objections to the
death penalty would affect his ability to render a death verdict, but he did not think
he would automatically vote for life imprisonment without possibility of parole.
And on voir dire, he belatedly raised his hand to include himself within the group
of prospective jurors who could not vote for the death penalty under any
circumstances, which was consistent with his response on the questionnaire that he
was “not sure that any” types of cases justify the death penalty. But later in voir
dire, S.M. did not include himself in the group who responded affirmatively to
defense counsel’s question as to whether any prospective juror would be unable to
consider either the death penalty or life without parole if the defendant was
convicted of special circumstance murder. In the face of such equivocation,
“ ‘ “we defer to the trial court’s evaluation of a prospective juror’s state of mind,
and such evaluation is binding on appellate courts.” ’ ” (People v. Tully (2012) 54
Cal.4th 952, 995–996.) S.M.’s responses were sufficiently equivocal for the trial

                                          16
court to determine that his views would substantially impair his service as a juror
in this capital case. The trial court did not abuse its discretion in granting the
prosecutor’s request to remove S.M. for cause.
                              III. GUILT PHASE ISSUES

       A. Sufficiency of the Evidence for the Molina and Murillo Murders
       The prosecution’s principal theory at trial was that Penunuri was the one
who shot Molina and Murillo, although the prosecution argued in the alternative
that Penunuri could be found guilty on an aider and abettor theory. Penunuri now
contends there is insufficient evidence of his liability for these murders. We
disagree.
       “To assess the evidence’s sufficiency, we review the whole record to
determine whether any rational trier of fact could have found the essential
elements of the crime or special circumstances beyond a reasonable doubt.
[Citation.] The record must disclose substantial evidence to support the verdict —
i.e., evidence that is reasonable, credible, and of solid value — such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.
[Citation.] In applying this test, we review the evidence in the light most
favorable to the prosecution and presume in support of the judgment the existence
of every fact the jury could reasonably have deduced from the evidence.
[Citation.] ‘Conflicts and even testimony [that] is subject to justifiable suspicion
do not justify the reversal of a judgment, for it is the exclusive province of the trial
judge or jury to determine the credibility of a witness and the truth or falsity of the
facts upon which a determination depends. [Citation.] We resolve neither
credibility issues nor evidentiary conflicts; we look for substantial evidence.
[Citation.]’ [Citation.] A reversal for insufficient evidence ‘is unwarranted unless
it appears “that upon no hypothesis whatever is there sufficient substantial



                                          17
evidence to support” ’ the jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th
327, 357.)
       Penunuri contends there is insufficient evidence to prove that he was the
one who committed those murders. We conclude otherwise. At the time of the
crimes, Penunuri was uniquely identified as being heavyset, bald, and with no
facial hair and wearing a long, bulky black jacket. During the Ralphs parking lot
robbery, Randy Cordero identified Penunuri as wielding a nine-millimeter
handgun. The testimony of Luke and Roxanne Bissonnette establishes that, just a
few hours later, Delaloza drove his white Cadillac to Hornell Street and that
Penunuri exited on the passenger side and confronted Luke and Arias. Penunuri
approached Luke and demanded that he get in the Cadillac. Based on Arias’s
excited utterance, Penunuri again wielded a gun, pointing it at Arias’s head. Both
Luke and Arias fled. At the Hornell Street house, according to Roxanne
Bissonnette, Penunuri told her that he was looking for Luke and Arias. Shortly
thereafter, the white Cadillac appeared on Goodhue Street and left the scene
immediately after the gunshots were fired. A neighbor observed two men entering
the Cadillac before it left. Luke, who had known Penunuri for over five years and
had seen him just hours before, identified Penunuri as the person seen running
across the street from his home after the shooting. Luke believed it was Penunuri
because of his body size and because his jacket hood was down. Under the street
light, Luke could see “Richard Penunuri’s head.” Laraine Martinez confirmed that
both of her sons, Luke and Shane, observed and immediately identified the man
across the street after the gunshots as “Dozer,” Penunuri’s gang moniker. All
casings found at the murder scene were nine-millimeter and were fired from the
same gun.
       The record thus contains solid evidence from which the jury could infer that
Penunuri confronted Luke and Arias, that he searched for them after they fled, and

                                        18
that he, Delaloza, and Castillo pursued Luke and Arias by driving the white
Cadillac from Hornell Street to Goodhue Street, where they knew Luke lived. The
evidence showed that on Hornell Street, Delaloza was driving the Cadillac he
owned and Penunuri was in the passenger seat. The jury could reasonably infer
that Penunuri had exited the Cadillac on Goodhue Street and went into Laraine
Martinez’s backyard. The evidence further showed that Penunuri wielded a gun
both during the Ralphs parking lot robbery and during the Hornell Street incident
with Arias. No evidence suggests he gave the gun to someone else when he,
Delaloza, and Castillo traveled to Goodhue Street. The most probable inference
from the evidence is that Penunuri shot Murillo and Molina execution-style while
they slept, probably believing they were Luke and Arias.
       Moreover, the jury reasonably could have credited Ruben Pozo’s original
statement to the police that Penunuri arrived home between 7:00 and 7:30 a.m.
rather than Pozo’s testimony at trial denying having made such a statement and
telling the police that that Penunuri was in their shared bedroom when he woke up
around 5:30 a.m. for work that day.
       Penunuri’s guilt is further confirmed by his instruction to his gang
confederates to prevent Castillo from testifying, eventually leading to Castillo’s
murder, as discussed further below. Penunuri’s instigation of the conspiracy to
kill Castillo, with its clear motive of silencing him as a witness, was evidence of
Penunuri’s consciousness of guilt.
       We conclude there is sufficient evidence that Penunuri murdered Murillo
and Molina and that the murders were in the first degree. Accordingly, we also
reject Penunuri’s claim that the jury’s multiple-murder special-circumstance
finding is not supported by sufficient evidence.




                                         19
        B. The Evidence Is Sufficient to Support the Conviction for the
           Conspiracy to Murder Jaime Castillo
        Penunuri contends that the evidence is insufficient to support the jury’s
guilty verdict on his participation in the conspiracy to commit the murder of Jaime
Castillo.
        From December 1997 through January 1998, Penunuri made phone calls to
Marin’s apartment from jail. During one of the calls, Marin overheard a
conversation in which Penunuri spoke to fellow gang members Castro and
Bermudez. According to Marin, Castro mentioned Castillo by his gang moniker
“Cartoon” and said, “I’ll handle it.” After the call, Castro explained that Penunuri
had said that “Cartoon was gonna rat him out” and that they needed to tell
“Cartoon to shut up, keep his mouth shut.” A few days later, Penunuri called
again and spoke to Marin. Penunuri said that Castillo was “gonna rat him out” and
that Marin should tell Castillo “not to say shit, that that’s wrong.” Marin testified
about further conversations Penunuri had with Tapia, Bermudez, and Castro.
After one such conversation, Castro, Bermudez, and Tapia discussed plans to harm
Castillo, specifically for Tapia to “blast” Castillo.
        Tracie McGuirk also received calls from Penunuri and overheard a
conversation between Penunuri and Castro. During the call, Castro said to
Bermudez, who was standing nearby, that Castillo was going to testify against
Penunuri. Castro told Penunuri, “[d]on’t worry about it” because he would take
care of it.
        Carmen Miranda, who was living in the apartment at the time, also
overheard a conversation Penunuri had with Castro and Bermudez. Castro or
Bermudez mentioned “Cartoon,” Castillo’s gang moniker, and Castro said, “Oh.
You want us to — you want us to get rid of him —.” Castro replied, “Yeah. Me
and [Bermudez] will get rid of ’em.” Later in her testimony, Miranda said she



                                           20
heard Castro say, “Oh. He’s gonna testify against you in your case? Oh. Don’t
worry. We’re gonna get rid of him. Me and [Bermudez’s] gonna get rid of him.”
       Penunuri argues that there is insufficient evidence to prove that he had
intent to kill Jaime Castillo. He argues that the conversations above provide
evidence only of conspiracy to commit witness intimidation.
       “Conspiracy to commit murder requires an agreement to commit murder
and an overt act by one or more of the conspirators.” (People v. Juarez (2016) 62
Cal.4th 1164, 1169.) Conspiracy also requires specific intent, which includes two
elements: (1) the intent to agree or conspire and (2) the intent to commit the
offense that is the object of the conspiracy. (People v. Swain (1996) 12 Cal.4th
593, 600.) Evidence of an agreement does not require proof that the parties met
and expressly agreed; a criminal conspiracy can be shown through circumstantial
evidence. (People v. Vu (2006) 143 Cal.App.4th 1009, 1025.) “Evidence is
sufficient to prove a conspiracy to commit a crime ‘if it supports an inference that
the parties positively or tacitly came to a mutual understanding to commit a crime.
[Citation.] The existence of a conspiracy may be inferred from the conduct,
relationship, interests, and activities of the alleged conspirators before and during
the alleged conspiracy.’ ” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1135
(Rodrigues).)
       In this case, there were at least two statements, overheard by witnesses to
conversations between Penunuri and gang members involved in the Castillo
killing, from which a jury could infer that Penunuri was involved in the conspiracy
to murder Castillo. First, Carmen Miranda testified that Castro said in reply to
Penunuri, “You want us to get rid of him.” Penunuri points to the fact that she
said later in her testimony that Castro said, “Oh. He’s gonna testify against you in
your case? Oh. Don’t worry. We’re gonna get rid of him. Me and [Bermudez’s]
gonna get rid of him.” But the jury could have found her first version of the

                                          21
statement, which she never repudiated, more credible. And even crediting the
later statement, the jury could have inferred from Castro’s reply –– “Don’t worry.
We’re going to get rid of him” –– that Penunuri and Castro had arrived at “ ‘a
mutual understanding’ ” to commit the murder. (Rodrigues, supra, 8 Cal.4th at
p. 1135.)
       Second, Marin testified that sometime after speaking to Penunuri on the
phone, Castro, Bermudez, and Tapia discussed plans to “blast Castillo.” In light of
the strong evidence that Penunuri conspired with his confederates to stop Castillo
from testifying, the statements above constitute sufficient evidence from which a
jury could reasonably infer that Penunuri’s intent crossed the line from
intimidation into murder.
       Penunuri also contends that evidence of the conspiracy to commit murder is
insufficient in light of the law regarding the admission of hearsay statements by
coconspirators incorporated in CALJIC No. 6.24, which states: “Evidence of a
statement made by one alleged conspirator other than at this trial shall not be
considered by you as against another alleged conspirator unless you determine by
a preponderance of the evidence: [¶] 1. That from other independent evidence that
at the time the statement was made a conspiracy to commit a crime existed; [¶]
2. That the statement was made while the person making the statement was
participating in the conspiracy and that the person against whom it was offered
was participating in the conspiracy before and during that time; and [¶] 3. That the
statement was made in furtherance of the objective of the conspiracy.” (See
People v. Prieto (2003) 30 Cal.4th 226, 251, fn. 10.) Here, Marin’s testimony
about his conversation with Penunuri established that Penunuri was conspiring
with him and his fellow gang members to criminally coerce Castillo into not
testifying. Hearsay statements such as the one made by Castro and reported by
Miranda were therefore admissible to define the exact nature of the conspiracy.

                                         22
       Penunuri contends that his claim of insufficient evidence is demonstrated
by the jury’s failure to return a true finding on one of the overt acts alleged in
connection with the charge of conspiracy to commit murder. Specifically,
Penunuri notes that of the nine acts listed, only one involves him directly, and it is
not marked true. This act states “that on and between January 1, 1998 and January
14, 1998, Richard Penunuri, Joe Castro, Arthur Bermudez, and Alfredo Tapia,
discussed a plan to murder Jaime Castillo. . . .” The other eight overt acts,
including the five overt acts that the jury found true, include only alleged
coconspirators Castro, Bermudez, and Tapia.
       Although a conviction of conspiracy does require commission of an overt
act in furtherance of the agreement, the act does not need to be committed by
every conspirator. “Once one of the conspirators has performed an overt act in
furtherance of the agreement, ‘the association becomes an active force, it is the
agreement, not the overt act, which is punishable.’ ” (People v. Johnson (2013) 57
Cal.4th 250, 259.) The jury found true five overt acts committed by Penunuri’s
alleged coconspirators, Castro, Bermudez, and Tapia. Although Penunuri did not
personally perform any of the five acts, the element of an overt act in furtherance
of the conspiracy was satisfied.
       In sum, we conclude that substantial evidence supported Penunuri’s
conviction on the charge of conspiracy to murder Castillo.

       C. Sufficiency of the Evidence to Support the Conviction for Aiding
          and Abetting Castillo’s Murder
       Penunuri contends there was insufficient evidence to support his conviction
for the murder of Castillo on an aiding and abetting theory. “ ‘[A]n aider and
abettor is a person who, “acting with (1) knowledge of the unlawful purpose of the
perpetrator; and (2) the intent or purpose of committing, encouraging, or
facilitating the commission of the offense, (3) by act or advice aids, promotes,


                                          23
encourages or instigates, the commission of the crime.” ’ ” (People v. Jurado
(2006) 38 Cal.4th 72, 136.) As discussed above, there was sufficient evidence that
Penunuri intentionally promoted, encouraged, and instigated the murder of
Castillo through his conversations with his gang confederates while in jail
awaiting trial for the murder of Molina and Murillo. His conviction for that
murder on an aiding and abetting theory is therefore supported by substantial
evidence.

       D. Sufficiency of the Evidence to Support the Witness Killing Special
          Circumstance
       The jury found true the witness killing special circumstance. (§ 190.2,
subd. (a)(10).) Penunuri claims this finding was not supported by substantial
evidence. As discussed above, substantial evidence supported his conviction for
the first degree murder of Castillo on an aiding and abetting theory. The evidence
discussed above in connection with the Castillo murder also establishes that the
primary motive for the murder was to silence Castillo as a witness to the murder of
Molina and Murillo. We therefore reject his challenge to the witness killing
special circumstance.

       E. Sufficiency of the Evidence for the Assault on Carlos Arias
       As noted, the evidence showed that Penunuri pointed a gun at Arias at the
Hornell Street location earlier in the morning before the Goodhue Street murders.
According to the statement made by Arias to Luke Bissonnette, to which Luke
testified at trial, Penunuri pulled out a gun and pointed it at Arias. Penunuri now
contends there was insufficient evidence that the gun was loaded and thus
insufficient evidence he committed the assault.
       “A long line of California decisions holds that an assault is not committed
by a person’s merely pointing an (unloaded) gun in a threatening matter at another
person.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11, fn. 3.) However, the fact


                                         24
that the gun was loaded may be inferred from circumstantial evidence, and we will
uphold an assault conviction if the inference is reasonable. (See id. at p. 12.)
Here, the jury could reasonably infer, as the prosecutor argued, that the gun
Penunuri pointed at Arias was the same gun that was used to kill Murillo and
Molina a few hours later, and was therefore loaded at the time of the assault. We
reject Penunuri’s claim that the evidence is insufficient to support his assault
conviction.

       F. Denial of Motion for a Mistrial After Mention of Association with
          Mexican Mafia
       The prosecution sought the testimony of Detective Curt Levsen, an expert
on the East Side Whittier Cole Street gang to which Penunuri belonged. The
prosecution wanted Levsen to explain certain gang signs used by the Cole Street
gang and to demonstrate that they were a “very cohesive group,” which would
further illuminate why Penunuri chose the three people that he did to “take care of
Jaime Castillo.” The trial court was initially reluctant to admit the testimony
because the gang affiliation of Penunuri and his coconspirators had already been
established, but it ultimately agreed to permit Levsen to testify regarding the gang
signs. In particular, the court allowed Levsen to interpret a photograph depicting
the “signs that we see . . . defendants in this court throwing . . . .”
       On direct examination, Levsen commented on a photograph showing
several individuals identified as members of the Cole Street gang making various
signs, including the shape of the letters E, W, and C to signify East Side Whittier
Cole Street gang. The photograph also showed three individuals, one holding his
forearms crossed to simulate an X, one holding his forearms parallel to simulate
the roman numeral II, and a third holding his right arm parallel to the other arms,
so as to spell out roman numeral XIII. When asked to explain the significance of
the sign, Levsen said: “13 is the number that is used by Southern California


                                           25
Hispanic Street gangs to show their allegiance to the Mexican Mafia, because 13
. . . represents the 13th letter of the alphabet, which is M, which is their way of
showing their allegiance to the Mexican Mafia. [I’m] not saying these individuals
are members of that Mexican Mafia, but just they’re under the jurisdictional rule
of the Mexican Mafia. In other words, they are Sureños in Southern California,
and they pay taxes to the Mexican Mafia.”
       At this point, Penunuri’s trial counsel objected, moved to strike the
testimony for lack of foundation, and moved for a mistrial. The trial court
overruled the objection but struck Levsen’s testimony about paying taxes to the
Mexican Mafia and instructed the jury to disregard it. Defense counsel later filed
a written motion for a mistrial on the ground that Levsen’s statements regarding
Penunuri’s affiliation with the Mexican Mafia were highly prejudicial in a manner
that could not be cured by admonition. The trial court denied the written motion
and made clear it did not view Levsen’s testimony as damaging. The trial court
also made clear that it would not have allowed the testimony regarding the
Mexican Mafia had it known Levsen would bring it up. But the court concluded
that the number XIII sign was a show of “bravado” and that “I don’t think any
reasonable person would conclude that these young people are saving their
pennies to pay dues to some shadow organization.” Although denying the written
mistrial motion, he agreed to instruct the jury to disregard all reference to the
Mexican Mafia.
       On appeal, Penunuri renews his claim that the trial court erred in denying
the mistrial motion, arguing that Levsen’s reference to the Mexican Mafia was so
prejudicial that it could not be cured by admonition. “In reviewing rulings on
motions for mistrial, we apply the deferential abuse of discretion standard.
[Citation.] ‘A mistrial should be granted if the court is apprised of prejudice that it
judges incurable by admonition or instruction. [Citation.] Whether a particular

                                          26
incident is incurably prejudicial is by its nature a speculative matter, and the trial
court is vested with considerable discretion in ruling on mistrial motions.
[Citation.]’ ” (People v. Wallace (2008) 44 Cal.4th 1032, 1068.)
       Here, Levsen’s mention of the Mexican Mafia was brief, and he made clear
he was “not saying that these individuals are members of that Mexican Mafia” but
that they are “under the jurisdictional rule” and “pay taxes” to the Mexican Mafia.
Penunuri contends that, in light of the Mexican Mafia’s reputation as a dangerous
prison gang known for ordering the murder of witnesses (see Alvarado v. Superior
Court (2000) 23 Cal.4th 1121, 1128–1129), any association would have been
incurably prejudicial. We conclude that the trial court did not abuse its discretion
by determining that Levsen’s brief reference to the Mexican Mafia, which
included his qualification that he was not saying Penunuri or his codefendants
were members of the organization, made such an impact on the jury that it could
not be corrected by admonition.
       Penunuri also argues that the prosecution’s questioning of Levsen
constituted prosecutorial misconduct for which a mistrial was the appropriate
remedy. In deciding whether prosecutorial misconduct justifies a mistrial, we
employ the same inquiry as determining whether such misconduct warrants
reversal of a verdict. (See People v. Ayala (2000) 23 Cal.4th 225, 283–284.)
“ ‘ “ ‘ “A prosecutor’s . . . intemperate behavior violates the federal Constitution
when it comprises a pattern of conduct ‘so egregious that it infects the trial with
such unfairness as to make the conviction a denial of due process.’ ” ’ [Citation.]
Conduct by a prosecutor that does not render a criminal trial fundamentally unfair
is prosecutorial misconduct under state law only if it involves ‘ “ ‘the use of
deceptive or reprehensible methods to attempt to persuade either the court or the
jury.’ ” ’ ” ’ ” (Ibid.)



                                          27
       Penunuri contends that the prosecutor acted deliberately and deceptively in
eliciting testimony that he knew would be highly prejudicial. But a prosecutor is
generally not guilty of misconduct “when he questions a witness in accordance
with the court’s ruling.” (People v. Rich (1988) 45 Cal.3d 1036, 1088.) Nor does
asking a question to which an objection is sustained constitute misconduct.
(People v. Hinton (2006) 37 Cal.4th 839, 864.) As noted, the trial court agreed to
permit Levsen to interpret a photograph depicting the “signs that we see . . .
defendants in this court throwing.” The prosecutor’s questioning of Levsen fell
within the trial court’s authorization; the defense objected to Levsen’s mention of
the Mexican Mafia; and the trial court agreed to instruct the jury to disregard all
references to the Mexican Mafia. On this record, we are unable to conclude that
the prosecutor engaged in misconduct or that the trial court abused its discretion in
denying the mistrial motion.

       G. Violation of Confrontation Clause Through Admission of Arias’s
          Out-of-court Statements
       The prosecution was unable to locate Arias, and the trial court deemed him
an unavailable witness. The court admitted three types of out-of-court statements
made by Arias: (1) statements he made to Luke Bissonnette, who testified to them
at trial; (2) the prior testimony of Arias in Delaloza’s trial; and (3) Arias’s taped
statement to the police. Penunuri contends that the admission of each of these
statements was erroneous and violated his right to cross-examine witnesses under
the confrontation clause of the Sixth Amendment to the United States
Constitution. The Attorney General argues that Arias’s statement to Luke
Bissonnette was properly admitted as an excited utterance but concedes that the
admission of Arias’s prior testimony and his statement to the police violated the
confrontation clause. The Attorney General contends, however, that this claim is
forfeited on appeal and that the error, in any event, was not prejudicial. We


                                          28
conclude that Arias’s statement to Luke Bissonnette was properly admitted and
that the other statements were indeed admitted in error and the claim of error is not
forfeited on appeal. We address the question of prejudice further below.

           1. Facts
       Luke Bissonnette had been with Arias in a car on Hornell Street earlier in
the evening of October 23, 1997 before the murders of Molino and Murillo at the
Goodhue Street house. As noted, Luke had run from Penunuri into the yard of his
grandfather’s house after Penunuri had confronted him and ordered him into the
white Cadillac. Later, Luke heard a commotion and saw Arias run and jump the
fence of his grandfather’s backyard. After running from the Hornell Street house
to the Goodhue Street house, Luke saw Arias talking to Luke’s sister, Laura.
According to Arias’s statement to police, he had hidden for about 20 minutes after
jumping the fence before heading to the Goodhue Street house. Arias, Laura, and
Luke stayed on the patio of the Goodhue Street house for about 20 minutes before
they went inside. Luke testified that before entering the house, Arias was
“exhausted from running, really tired, still breathing heavy.” Over counsel’s
hearsay objection, Luke testified that Arias’s “eyes were big, like he almost got
killed, he said, that night.” Over further hearsay objection, Luke testified that
Arias told him that as he was exiting the car on Hornell Street, Penunuri pulled out
a gun and put it to his head. The trial court agreed with the prosecution that
Arias’s statement to Luke was an excited or spontaneous utterance and was
therefore admissible.
       In Arias’s tape-recorded interview with the police, which was admitted over
defense hearsay objection, Arias said he had run from the vehicle he was sitting in
at Hornell Street after he had seen “that guy . . . I guess Dozer or whatever”
charging Luke, causing Luke to run to the back of the house and Arias to also run.



                                         29
According to Arias’s statement, Penunuri pointed a gun at him, and Penunuri was
“chubby” and wore a black jacket with a hood. Arias also told the police that the
person running away from the Goodhue Street house wore the same jacket.
       Finally, Arias’s testimony from Delaloza’s trial was admitted into evidence
over a hearsay objection. The testimony made clear that Arias had not wished to
testify and was taken into custody after refusing to respond to a subpoena. He
recanted much of what he told the police, including his statement that Penunuri
had pointed a gun at him on Hornell Street on the night of the murders and he
denied he was able to identify anyone running from the Goodhue Street house.

           2. Forfeiture
       The Attorney General contends that Penunuri forfeited his confrontation
clause claim with respect to the admission of Arias’s taped statement to the police
because although counsel objected to the statements as hearsay, he did not object
specifically on confrontation clause grounds. Since the Attorney General’s brief
was filed, we have clarified that because Crawford v. Washington (2004) 541 U.S.
36 (Crawford) made a sweeping change in the interpretation of the confrontation
clause, a defendant tried before Crawford “does not forfeit a Crawford challenge
by failing to raise a confrontation clause objection at trial.” (People v. Rangel
(2016) 62 Cal.4th 1192, 1215.) Penunuri was tried in 2000, prior to Crawford,
and so did not forfeit his confrontation clause claim.

           3. Excited Utterance Exception and Arias’s Statement to Luke
              Bissonnette
       Penunuri claims the trial court erred in admitting what Arias said to Luke at
the Goodhue Street house under the excited or spontaneous utterance exception to
the hearsay rule. As an initial matter, we note that the confrontation clause is not
at issue here because Arias’s statement to Luke was not testimonial. (See Davis v.



                                         30
Washington (2006) 547 U.S. 813, 822 (Davis).) The only question is whether
Arias’s statement falls within any state law exception to the hearsay rule.
       “Evidence of a statement is not made inadmissible by the hearsay rule if the
statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or
event perceived by the declarant; and [¶] (b) Was made spontaneously while the
declarant was under the stress of excitement caused by such perception.” (Evid.
Code, § 1240.) For a statement to fall within this exception, “ ‘it is required that
(1) there must be some occurrence startling enough to produce this nervous
excitement and render the utterance spontaneous and unreflecting; (2) the
utterance must have been before there has been time to contrive and misrepresent,
i.e., while the nervous excitement may be supposed still to dominate and the
reflective powers to be yet in abeyance; and (3) the utterance must relate to the
circumstance of the occurrence preceding it.’ [Citations.]” (People v. Poggi
(1988) 45 Cal.3d 306, 318.) “ ‘When the statements in question were made and
whether they were delivered directly or in response to a question are important
factors to be considered on the issue of spontaneity. [Citations.] But . . .
[“n]either lapse of time between the event and the declarations nor the fact that the
declarations were elicited by questioning deprives the statements of spontaneity if
it nevertheless appears that they were made under the stress of excitement and
while the reflective powers were still in abeyance.” ’ ” (People v. Brown (2003)
31 Cal.4th 518, 541 (Brown), italics in original.)
       In Brown, we concluded that the trial court did not abuse its discretion in
finding a statement made two and a half hours after a shooting to be a spontaneous
utterance, where the declarant was still visibly shaking and crying after having
watched the shooting. (Brown, supra, 31 Cal.4th at p. 541; see also People v.
Raley (1992) 2 Cal.4th 870, 893–894 [statement admitted as spontaneous utterance
18 hours after event].)

                                          31
         Here, Arias, by his own estimation, hid for about 20 minutes after being
confronted by Penunuri and then proceeded to the Goodhue Street house. He was
in the backyard with Luke and Laura Bissonnette for about 20 minutes when he
told Luke about the incident with Penunuri. Therefore, the time between his
encounter with Penunuri and his statement to Luke about that encounter was
between 20 and 40 minutes. When he appeared at Goodhue Street, he was out of
breath from having run from Hornell Street, and Luke testified that Arias’s “eyes
were big and told Luke that he “almost got killed . . . that night.” Under these
circumstances, the trial court did not abuse its discretion in concluding that Arias,
at the time he made his statement, was still in an excited and unreflective state of
stress from having had a gun pointed at him less than an hour before.

             4. Admission of Arias’s Taped Statement and Prior Testimony in
                Delaloza’s Trial
         As the Attorney General concedes, the admission of Arias’s taped
statement to the police and his testimony in the Delaloza trial were inadmissible.
Both were testimonial statements (see Davis, supra, 547 U.S. at p. 822), and
Penunuri and his counsel were unable to cross-examine Arias. The prejudicial
effect of these errors is considered further below in a discussion of cumulative
error.

         H. Violation of the Confrontation Clause Through Admission of
            Delaloza’s Out-of-court Statements
         Penunuri contends that admission of Delaloza’s taped testimony violated
his confrontation rights as well as the state hearsay rule.

             1. Background
         Delaloza refused to testify at Penunuri’s trial and was deemed an
unavailable witness. The prosecution sought to admit Delaloza’s taped
interrogation by Whittier police on the night of October 24, 1997. In that


                                          32
interrogation, Delaloza said he and Penunuri were members of the East Side
Whittier Cole Street gang. As noted, Delaloza said with respect to the Ralphs
parking lot robbery on October 23, 1997, that he saw one man pull out a baseball
bat from his car and that he (Delaloza) came to the aid of a friend by hitting in the
face one of the men his friend was fighting. After the three men Delaloza and his
confederates had been fighting ran away, Delaloza claimed some of his friends
may have picked up some possessions that had dropped. Later on the night of
October 23, 1997, he and Penunuri went to Luke’s grandfather’s house “just ta see
what [Luke’s] up to” because they had not spoken in a long time. While there,
Penunuri spoke with Luke’s mother, and Delaloza stayed in the car. Delaloza saw
someone else whom he recognized but did not know and asked him to “party,” but
the person refused. Delaloza noted that Luke sometimes went to Laraine
Martinez’s house on Goodhue Street.
       According to Delaloza, he and Penunuri went to the house on Goodhue
Street later that night to talk to Monique Martinez, his friend’s ex-girlfriend. They
parked around the corner, and Delaloza waited in the car while Penunuri went to
the house to bring Monique out. Delaloza then heard gunshots and saw Penunuri
running back to the car. At the time, he thought someone was shooting at
Penunuri. He said he never saw Penunuri with a gun that night. He drove
Penunuri home at around 3:45 a.m. When questioned about Penunuri’s clothing,
Delaloza said Penunuri was wearing a parka and jeans.
       Defense counsel objected to admission of the tape, arguing that “[t]he
statements that are given by [Delaloza] to the police are exculpatory. They’re not
against penal interest. They’re in his own interests trying to disavow himself from
this event . . . .” The trial court judge rejected defense counsel’s argument and
admitted the tape, concluding that “[w]hether or not the statement is exculpatory
or incriminating I think is a question of fact to be determined by the jury.” Later,

                                         33
the court admitted testimony by a Whittier police detective recounting statements
that Delaloza had made in the course of interrogation. Defense counsel objected
to the admission of the detective’s testimony on hearsay grounds and on
Aranda/Bruton grounds. (See People v. Aranda (1965) 63 Cal.2d 518; Bruton v.
United States (1968) 391 U.S. 123 [nontestifying codefendant’s extrajudicial
statement that incriminates the other defendant is inadmissible at a joint trial].)

           2. Analysis
       “Unconfronted accomplice statements to authorities [are] ‘core testimonial
statements that the Confrontation Clause plainly meant to exclude.’ ” (People v.
Hopson (2017) 3 Cal.5th 424, 432, quoting Crawford, supra, 541 U.S. at p. 63.)
The Attorney General concedes that the admission of Delaloza’s prior statements
made under police interrogation were testimonial and that their admission violated
the confrontation clause. Having reached this conclusion, we need not determine
whether the trial court properly applied the two-step analysis — determining first
whether a statement is hearsay and then whether it is testimonial — set forth in
People v. Sanchez (2016) 63 Cal.4th 665, 680. As with the confrontation clause
errors concerning Arias’s statements, the prejudicial effect of the erroneous
admission of Delaloza’s prior statements is addressed further below in a
discussion of cumulative error.

       I. Instructional Error Regarding Delaloza’s Accomplice Testimony
       As noted, Delaloza refused to testify at trial, and the prosecution presented
out-of-court statements by Delaloza in support of the robbery of Kreisher and
Cordero and the murders of Molina and Murillo. Penunuri claims that the trial
court should have instructed the jury sua sponte that Delaloza was an accomplice
as a matter of law. Penal Code section 1111 states that a conviction cannot be
“had upon the testimony of an accomplice unless it be corroborated by such other



                                          34
evidence as shall tend to connect the defendant with the commission of the
offense.” The trial court, using CALJIC No. 3.16, instructed the jury that the
testimony of an accomplice requires corroboration only with respect to Jesus
Marin, who participated in Castillo’s murder. Penunuri claims it was error not to
give the same instruction with respect to Delaloza.
       Assuming it was error to fail to furnish the CALJIC No. 3.16 instruction
specifically to Delaloza, we conclude the error was harmless. Immediately before
the jury heard Delaloza’s out-of-court statements, the trial court informed the jury
that Delaloza had been tried for the murders of Molina and Murillo, had been
sentenced, and that his case was on appeal. The court said: “We don’t know
what the jury decided in that case as to the reason, whether they convicted him as
a principal, as an accomplice, as an aider and abettor. But at least, for our
purposes, he would be an accomplice. When an accomplice testifies, whether by
live testimony or by testimony in writing, that testimony must be corroborated. It
doesn’t require evidence that’s beyond a reasonable doubt to corroborate. The
corroboration can be evidence that is only slight.” The trial court then informed
the jury that Delaloza’s testimony should be regarded as “untrustworthy – because
of the fact that he has his own axe to grind by testifying in the matter.” That
admonition, in combination with the fact that the jury knew Delaloza had been
charged with the same crime, would have inclined the jury to view his testimony
with distrust. (See People v. Williams (2010) 49 Cal.4th 405, 456 [failure to give
accomplice instruction harmless when “the jury would have been inclined to view
[the] testimony with caution even in the absence of an instruction” because the
witness had been arrested in connection with the crime].)
       Further, even if the jury would not have understood the corroboration
requirement with respect to Delaloza’s testimony, the error is harmless because
there was sufficient corroboration of Penunuri’s involvement in the Murillo and

                                         35
Molina murders, including Luke Bissonnette’s identification of Penunuri on
Goodhue Street a few moments after the shots were fired. (See People v.
Whisenhunt (2008) 44 Cal.4th 174, 215 [failure to instruct on accomplice
testimony is harmless where there is sufficient corroborating evidence in the
record].)
       Penunuri also contends that even if the jury was properly apprised of
Delaloza’s accomplice status with respect to the Murillo and Molina murders, it
was not so informed with respect to the robbery of Cordero and Kreishner. But it
is unlikely the jury would have viewed with distrust Delaloza’s testimony with
respect to the former crimes but not the latter. Penunuri’s involvement in the
robbery was also amply corroborated by the robbery victims themselves.

       J. Trial Court’s Allegedly Improper Comments Before Introduction
          of Delaloza’s Statements
       Penunuri contends that several of the trial court’s comments before the
introduction of Delaloza’s statements, made in the presence of the jury, were
improper and prejudiced him.
       The prosecution sought Delaloza’s testimony at trial. Delaloza had already
been convicted and sentenced for the Ralphs parking lot robbery and the first
degree murder of Molina and Murillo, but his appeal was pending. When brought
to court in Penunuri’s trial, he invoked his right to remain silent. The court called
in the jury and informed them that Delaloza had refused to testify. The court then
discussed with counsel, in the jury’s presence, whether Delaloza’s out-of-court
statements should be admitted. Penunuri’s counsel argued that the statements
should not be admitted because they were not against penal interest (i.e., Delaloza
disavowed personal responsibility and shifted the blame to Penunuri) and that the
defense would make an offer of proof that Delaloza was the shooter. In response,
the prosecution argued that it was established that Delaloza was the driver of the


                                         36
white Cadillac seen on Goodhue Street at the time of the murder and that the keys
to the Cadillac were found among his property when his residence was searched,
which meant “he had control over the Cadillac that night.” The trial court
commented: “I think that’s inherent in his statement that he made.” The
prosecutor further said that given the circumstantial evidence establishing him as
the “wheel man,” “the getaway driver from the double murder scene,” Delaloza’s
statements were an admission of criminal liability. When Penunuri’s counsel
continued to protest that Delaloza’s statements were exculpatory, the court
commented: “That doesn’t make sense. He was there. He was the driver of the
car. He admits that.”
       Before playing the audiotape of Delaloza’s testimony for the jury, the trial
court reiterated its disagreement with defense counsel’s position that Delaloza’s
statements were exculpatory. Then, during a sidebar, the defense asked the trial
court to inform the jury that Delaloza “has been convicted in this case, so that they
can properly judge his testimony.” The court agreed and informed the jury that
Delaloza had been convicted of the Goodhue Street murders and that his appeal
was pending.
       Penunuri makes several claims of error. As an initial matter, he contends
that the hearing regarding the admission of Delaloza’s statements should have
been held outside the presence of the jury. Evidence Code section 402,
subdivision (b), provides: “The court may hear and determine the question of the
admissibility of evidence out of the presence or hearing of the jury; but in a
criminal action, the court shall hear and determine the question of the admissibility
of a confession or admission of the defendant out of the presence and hearing of
the jury if any party so requests.” Thus, “subdivision (b) requires a hearing out of
the jury’s presence only (1) in a criminal action, (2) regarding admissibility of a
confession or admission (3) of the defendant, and only (4) if any party so requests;

                                         37
otherwise the court may hear and determine the question in the jury’s presence.”
(People v. Rodriguez (1971) 18 Cal.App.3d 793, 798.) “ ‘Ordinarily, the better
practice requires that all doubtful questions of evidence or procedure should not be
proposed or discussed in the presence of the jury.’ ” (Ibid.) But a defendant who
does not object to holding a hearing on the admissibility in the jury’s presence
forfeits the claim on appeal. (Ibid.) No objection was made here.
       Next, Penunuri claims that during the discussion of the admissibility of
Delaloza’s statement in front of the jury, the trial court improperly vouched for the
prosecutor. “A trial court may comment on the evidence (Cal. Const., art. VI,
§ 10), but such comments ‘must be accurate, temperate, nonargumentative, and
scrupulously fair. [Citation.]’ ” (People v. Sturm (2006) 37 Cal.4th 1218, 1232.)
In response to the prosecution’s statements that circumstantial evidence showed
that Delaloza was the driver of the white Cadillac present at the Goodhue Street at
the time the murders, the trial court responded: “I think that’s inherent in his
statement that he made.” The trial court later made a similar statement in response
to Penunuri’s objection to the admission of Delaloza’s testimony. The trial court’s
statements simply conveyed that Delaloza admitted to being the driver of the white
Cadillac on Goodhue Street and that this admission was against Delaloza’s penal
interest. We find no improper vouching by the court here.
       Penunuri also claims that the trial court erred in disclosing to the jury that
Delaloza had been convicted of the Ralphs parking lot robbery and Goodhue
Street murders. He cites People v. Young (1978) 85 Cal.App.3d 594, 601–602, for
the proposition that revealing an accomplice’s conviction or guilty plea can at least
under some circumstances be error, “tantamount to inadmissible hearsay
evidence.” (Id. at p. 602.) Assuming it was error, the error was invited. As noted,
it was defense counsel who requested that the jury be told about Delaloza’s
convictions “so that they can properly judge his testimony.” Thus, counsel made a

                                          38
strategic judgment that the revelation of Delaloza’s convictions would more likely
benefit than harm his client by impeaching Delaloza’s credibility. Because any
error was invited by the defense, it cannot now be asserted as a basis for relief.
(See People v. Cooper (1991) 53 Cal.3d 771, 830–831.)

       K. CALJIC No. 17.41.1
       The trial court instructed the jury with CALJIC No. 17.41.1 as follows:
“The integrity of a trial requires that jurors, at all times during their deliberations,
conduct themselves as required by these instructions. Accordingly, should it occur
that any juror refuses to deliberate or expresses an intention to disregard the law or
to decide the case based on penalty or punishment in this phase of the case, or any
other improper basis, it is the obligation of the other jurors to immediately advise
the Court of the situation.”
       Penunuri contends that this instruction deprived him of his right to a jury
trial and to due process “because the instruction invades the secrecy of jury
deliberations and chills free and open debate, especially by jurors who hold a
minority view.” He acknowledges that we held in People v. Engleman (2002) 28
Cal.4th 436, 443–445, that instructing the jury in CALJIC No. 17.41.1 did not
violate the defendant’s state or federal constitutional rights. But we went on in
Engleman to exercise our supervisory power to direct courts not to give that
instruction because it “creates a risk to the proper functioning of jury
deliberations” that is not necessary or advisable. (Engleman, at p. 449.)
Nonetheless, we have made clear that the furnishing of this instruction is not a
basis for reversing a conviction. (Ibid.; see People v. Rogers (2013) 57 Cal.4th
296, 340.)




                                           39
       L. Cumulative Error
       As explained above, the trial court committed three confrontation clause
errors: admitting Arias’s taped statement to the police, admitting Arias’s prior
testimony at Delaloza’s trial, and admitting Delaloza’s statements to the police. A
violation of the confrontation clause is harmless if the court can conclude beyond
a reasonable doubt that it did not affect the verdict. (People v. Jennings (2010) 50
Cal.4th 616, 654.) The ultimate inquiry is “ ‘ “whether the . . . verdict actually
rendered in this trial was surely unattributable to the error.” ’ ” (People v. Pearson
(2013) 56 Cal.4th 393, 463.) We conclude these errors were harmless beyond a
reasonable doubt because they added little if anything to the properly admitted
evidence against Penunuri.
       Arias’s taped statement to the police identified Penunuri as the person who
pointed a gun at his face on Hornell Street and also indicated that the person he
saw running from the Goodhue Street house was wearing the same jacket he had
seen Penunuri wear in that confrontation. Evidence of that confrontation was
already properly admitted in the form of Luke Bissonnette’s testimony about
Arias’s spontaneous utterance when he arrived at Goodhue Street. Arias’s
statement about Penunuri on Goodhue Street was cumulative of the stronger
testimony by Luke Bissonnette positively identifying Penunuri across from the
Goodhue Street house after the shooting. Nor did Arias’s testimony at Delaloza’s
trial, recanting his prior statements incriminating Penunuri, prejudice Penunuri.
And because Arias’s statements regarding Penunuri’s assault against him on
Hornell Street were supported by the properly admitted and unchallenged
testimony of Luke Bissonnette, we further reject Penunuri’s claim that his
conviction for that assault should be reversed.
       As for Delaloza’s statement, the jury was likely to discount it for several
reasons. First, they were aware that he had been tried and convicted for the


                                         40
Goodhue Street murders and that any statement he had made to investigating
authorities was likely to be exculpatory, a view reinforced by the trial court
advisement to the jury that Delaloza’s statement was to be viewed as
“untrustworthy.” Second, the content of his statement gave the jury further cause
to disbelieve him. His claim that he and Penunuri went to Goodhue Street for the
innocent purpose of talking to an ex-girlfriend of one of their fellow gang
members was contrary to the considerable evidence that they went to Goodhue
Street in pursuit of Arias and Luke Bissonnette after a hostile encounter with them
at Hornell Street. And his claim that Penunuri was the only person to go toward
and then run from the Goodhue Street house was contradicted by the disinterested
testimony of a neighbor, Matthew Walker, who saw two men running from the
house after the shots were fired.
       According to Penunuri, the damage to his case comes from Delaloza
placing Penunuri rather than himself in the backyard of the Goodhue Street house
at the time the shots were fired, thereby undermining Penunuri’s defense theory
that Delaloza was the real shooter. But Delaloza also said he did not see Penunuri
in possession of a gun when he ran into the backyard of the Goodhue Street house.
There is no reason to suppose the jury would selectively believe Delaloza about
being the one who stayed behind in the car but not believe his statement that
Penunuri was unarmed when he entered the backyard at Goodhue Street. To the
extent that the jury selectively credited Delaloza’s testimony –– i.e., believed that
Penunuri did approach the Goodhue Street house, but disbelieved the statement
that he was alone and unarmed — it was because the jury already had evidence
that Penunuri was accompanied by someone and that he, Penunuri, was the one
carrying the gun, as he had a few hours before in the Ralphs parking lot and at
Hornell Street. Delaloza’s untrustworthy statement did not add to that inculpatory
evidence.

                                          41
         We have also concluded above that the trial court’s instructional error with
regard to Delaloza’s accomplice testimony was harmless. Given the totality of the
trial court’s instructions and statements, the jury likely understood that such
testimony required corroboration and should be viewed with caution, and in any
case, the statements were corroborated by other evidence presented at trial. This
error, considered cumulatively with the others, does not alter the conclusion that
there is no basis for overturning Penunuri’s conviction for the murders of Molina
and Murillo.
         The concurring and dissenting opinion, while agreeing that the admission
of Delaloza’s testimony did not affect the guilt phase verdict, argues that the error
requires reversal of the penalty phase verdict because that testimony would have
made the jury more certain it was Penunuri who shot Molina and Murillo and
therefore more likely to impose a death sentence. As an initial matter, we note
that the concurring and dissenting opinion takes the view that the erroneous
admission of Delaloza’s testimony can be harmless as to Penunuri’s guilt only if
there is overwhelming, lawfully admitted evidence that Penunuri was the shooter
in the Molina and Murillo murders. (Conc. & dis. opn., post, at p. 6, citing People
v. Anderson (1987) 43 Cal.3d 1104, 1127–1129; id. at pp. 15–16 & fn. 3
[collecting cases].) But the concurring and dissenting opinion does not explain
why the strength of the prosecution’s case should be the only factor in determining
whether a confrontation clause error affected the verdict, or why the content and
credibility of the erroneously admitted evidence cannot be a critical factor in some
cases.
         More fundamentally, as the concurring and dissenting opinion
acknowledges, the overwhelming evidence standard has no application to the
penalty phase of a capital trial, where the prosecutor had no burden to prove that
the defendant was the shooter or any other particular fact about the capital crimes.

                                          42
Rather, our function in considering whether the erroneous admission of Delaloza’s
testimony affected the penalty phase verdict is not to determine whether there is
overwhelming evidence that Penunuri was the shooter, but whether there is a
reasonable possibility that had the erroneously admitted evidence been excluded,
the jury would have voted for life without parole instead of death. (See People v.
Cowan (2010) 50 Cal.4th 401, 491.) We conclude there is not.
       First, as noted, Delaloza’s statement incriminated Penunuri only if the jury
had discounted several lies of which it would have been aware, while selectively
crediting other parts of his statement. Because Penunuri had openly displayed a
gun twice that night, at the parking lot robbery and again while threatening Arias
at Hornell Street, the jury would have known that Delaloza was lying about being
unaware whether Penunuri was carrying a firearm. The jury also knew he was
lying about going to Goodhue Street with the innocent purpose of talking to a gang
member’s ex-girlfriend. And the jury knew his statement that only Penunuri
entered the backyard of the Hornell Street house was contradicted by Walker’s
testimony about two men running from the house after the shots were fired. The
jury in all likelihood recognized Delaloza’s statement as a mendacious account of
the facts tailored to absolve him of all criminal liability. Indeed, Penunuri’s
counsel during closing argument underscored the obvious point that “Mr. Delaloza
is lying and minimizing his role in this event when he talks to the police.” The
concurring and dissenting opinion does not explain why the jury would have
disbelieved some of Delaloza’s statements but not others.
       This lack of credibility may explain why the prosecutor, in his extensive
and detailed rebuttal of the defense’s contention that Delaloza may have been the
shooter, made only a single passing reference to Delaloza’s statement, and then
only about what Delaloza said he was wearing that night. Instead, the prosecutor
emphasized the properly admitted evidence that strongly pointed to Penunuri as

                                         43
the shooter. This evidence included Penunuri’s and not Delaloza’s possession of a
gun on the day in question during the Ralph’s parking lot robbery and the Hornell
Street assault, Luke Bissonnette’s eyewitness identification, Penunuri’s status as a
leader of the gang, the fact that Delaloza was driving the Cadillac on Hornell
Street, the inconclusiveness of the gunshot residue test performed a year after the
murder, and the defense’s decision not to test Delaloza’s clothing for gunshot
residue. And even the one fact the prosecutor highlighted from Delaloza’s
statement –– that on the night of the murders he was wearing a sweatshirt and
Penunuri was wearing a dark black jacket –– was cumulative of more reliable
testimony by Roxanne Bissonnette about what she saw the two of them wearing
when she encountered them on Hornell Street shortly before the murders.
       Moreover, to the extent that the penalty phase jury, with or without
Delaloza’s testimony, had a lingering doubt about who shot Murillo and Molina
because of the lack of eyewitnesses, the jury also would have been acutely aware
that the lack of witnesses was attributable to the fact that the one person
potentially willing and able to report what had happened that night –– Jaime
Castillo –– had been murdered at Penunuri’s behest precisely in order to prevent
him from making that report. As the prosecutor argued, the fact that Castillo “was
killed so that Dozer could get away with double murders” was “a significant factor
in aggravation which warrants the death penalty in and of itself” and “cannot be
overcome by any mitigating factor that we’ve heard in this particular case.” Nor
was there any question that Penunuri played a leading role in the murders. As
noted, these were murders of mistaken identity, with Luke and Arias as the
intended targets. It was Penunuri who ordered Luke into the car at Hornell Street,
Penunuri who waved a gun in Arias’s face (likely the same nine-millimeter
handgun he used during the parking lot robbery), and Penunuri who asked Luke’s
mother his whereabouts. At every point of which the jury was aware, it was

                                          44
Penunuri who was in command, and the jury had every reason to believe it was
Penunuri who instigated the pursuit of Luke and Arias to Goodhue Street for the
purpose of murdering them. Thus, even assuming the jury would have had
lingering doubt at the penalty phase about the identity of the shooter in the absence
of Delaloza’s false testimony, it is highly unlikely such doubt would have led the
jury to a different penalty verdict.
       Finally, despite what the concurring and dissenting opinion contends,
Penunuri does not raise on appeal the claim that even if the convictions for the
Molina and Murillo murders are affirmed, the enhancement for personally using a
firearm (former § 12022.5, subd. (a)(1)) independently should be reversed with
respect to those murders because of improperly admitted evidence. Accordingly,
we decline to address this claim.
                                IV. PENALTY PHASE

       A. Exclusion from a Portion of the Penalty Phase Closing Argument
       Penunuri and codefendant Castro were jointly tried at the penalty phase
through the close of evidence. At the beginning of closing arguments, Castro was
not present due to administrative problems, and the trial court decided to proceed
with Penunuri’s closing arguments and so informed the jury. The jury began
deliberating Penunuri’s penalty after closing argument. While this was occurring,
the court, outside the jury’s presence, informed counsel of his intention to bring
the jury back to hear Castro’s closing arguments, but without Penunuri present.
Penunuri’s counsel made no objection. Penunuri now claims it was error to
exclude him from Castro’s closing argument.
       Section 977, subdivision (b)(1), provides that with certain exceptions not
relevant here, “in all cases in which a felony is charged, the accused shall be
personally present at the arraignment, at the time of plea, during the preliminary



                                         45
hearing, during those portions of the trial when evidence is taken before the trier
of fact, and at the time of the imposition of sentence. The accused shall be
personally present at all other proceedings unless he or she shall, with leave of
court, execute in open court, a written waiver of his or her right to be personally
present. . . .” (See also § 1043 [requiring a defendant’s presence of felony trial
subject to certain exceptions].) We have held that “[n]either the state nor the
federal Constitution, nor the statutory requirements of sections 977 and 1043,
require the defendant’s personal appearance at proceedings where his presence
bears no reasonable, substantial relation to his opportunity to defend the charges
against him.” (People v. Butler (2009) 46 Cal.4th 847, 861.)
       There is no question that Penunuri did not waive his right to be present
during Castro’s closing argument. Nor did counsel’s failure to object forfeit the
claim. (See People v. French (2008) 43 Cal.4th 36, 46–47 [no forfeiture of claim
for failure to object when express waiver is required].) The Attorney General
acknowledges that closing argument is a critical stage of the trial (cf. Herring v.
New York (1975) 422 U.S. 853, 858 [“There can be no doubt that closing
argument for the defense is a basic element of the adversary factfinding process in
a criminal trial”]), but he argues that a closing argument for a codefendant is not a
critical stage and that Penunuri therefore had no right to be present. Penunuri’s
counsel points to the fact that the prosecutor in particular, and to a lesser degree
Castro’s defense counsel, made a number of disparaging references to Penunuri
during closing argument as the instigator of the conspiracy to murder Castillo in
which Castro participated. In this case, the interrelationship between codefendants
that made a joint trial appropriate makes it difficult to distinguish, for purposes of
the right to be present, between a defendant’s closing argument and that of his
codefendants; both may be critical to each defendant. Therefore, we hold that the



                                          46
trial court erred in failing to obtain Penunuri’s personal waiver before excluding
him from the courtroom during Castro’s closing argument.
       “[S]tate law error at the penalty phase of a capital case requires reversal
only when there is a ‘reasonable (i.e., realistic) possibility’ the error affected the
verdict. (People v. Brown [(1988)] 46 Cal.3d [432,] 447–448.) That standard is
‘the same, in substance and effect,’ as the harmless-beyond-a-reasonable-doubt
standard of Chapman v. California [(1967)] 386 U.S. [18,] 24.” (People v.
Cowan, supra, 50 Cal.4th at p. 491.) We conclude the error was harmless beyond
a reasonable doubt. Penunuri does not contend that his presence during Castro’s
closing argument would have altered the content of those arguments. He contends
that his absence from those proceedings “reasonably showed a lack of interest in
the proceedings at a critical stage.” But there is no reason to think the jury would
infer such lack of interest rather than simply attributing his absence to the fact that
it was his codefendant’s closing argument. Even if the jury believed Penunuri
lacked interest in hearing Castro’s closing argument, we see no reasonable
possibility that this lack of interest, in the context of the totality of the evidence,
would have exerted any influence over the jury’s penalty decision.
       Penunuri also argues that the jury was unable to assess his demeanor during
Castro’s closing argument. But the jury had ample opportunity to assess his
demeanor during the penalty phase trial, including at all times when evidence was
taken. It is not reasonably possible that the inability to observe his demeanor
during Castro’s closing argument would have swayed the verdict.

       B. Claimed Deprivation of Individualized Sentencing
       Penunuri contends that the jury did not render an individualized penalty
verdict because the jury was invited to compare his culpability with that of Castro,




                                           47
his less culpable codefendant. We conclude the jury was adequately informed of
its responsibility to render an individualized sentence.
       Penunuri had been convicted of the murders of Murillo and Molina, as well
as the conspiracy to murder Castillo. Castro was convicted of the murder of
Castillo. They were jointly tried before the same penalty phase jury. On
December 21, 2000, at the close of evidence and just before adjourning for the
long Christmas weekend, the trial court admonished the jury “not to decide the
case” but reminded the jury, among other things, to “realize that there are two
separate people here, in that each of them is entitled to a trial as if he were the only
person. So what you decide against one person should not be carried over into the
decision of the other person, unless you feel it is appropriate.” The court then
said: “But you must give each one individual trial. . . . I’ll instruct you more fully
on that.”
       The Eighth Amendment to the federal Constitution requires an
individualized determination of the appropriate penalty in a capital trial. (Lockett
v. Ohio (1978) 438 U.S. 586, 604–605.) Absent a showing of gross unfairness, a
joint penalty phase trial tried to the same jury does not deprive a defendant of such
individualized determination when the jury is instructed to consider the evidence
separately as to each defendant and to decide separately the question of penalty as
to each defendant. (People v. Taylor (2001) 26 Cal.4th 1155, 1174.) Penunuri
claims that the trial court improperly invited the jury to make a comparison
between him, who was convicted of three murders, with Castro, who was
convicted of one murder and who arguably had more mitigating evidence in his
favor, by telling the jury that what they “decide against one person should not be
carried over into the decision of the other person, unless you feel it is
appropriate.”



                                          48
       Although the Attorney General concedes that the trial court misspoke in
adding the italicized phrase, he contends that the court’s instructions overall were
adequate to inform the jury about the need for individualized sentencing. We
agree. The trial court’s remark about the decision as to one defendant not being
“carried over” to the other “unless you feel it is appropriate” must be considered in
the context of the trial court’s subsequent formal instructions. In those
instructions, the court said: “You’ll recall during the guilt phase of the trial, and
perhaps during this phase as well, that I mentioned . . . to you that each of the
defendants is to be tried as though he were the only defendant. And that your
verdict should be rendered against one defendant without regard to what verdicts
you rendered as to other defendants.” The court further instructed, after
explaining the weighing of aggravating and mitigating circumstances to decide the
appropriate penalty, that “[i]n this case you must decide separately the question of
penalty as to each defendant.” In light of these instructions, we do not believe the
jury could have been led astray by the trial court’s earlier remark.
       Penunuri also contends that such unfair comparison was encouraged when
the jury was interrupted in its deliberations over his penalty with closing argument
pertaining to the arguably less culpable Castro. Penunuri points to remarks by the
prosecutor during closing argument in which he mentions the Murillo and Molina
murders, thereby reminding the jury of Penunuri’s greater culpability. But the
closing argument of both the prosecutor and Castro’s defense counsel, read as a
whole, were overwhelmingly focused on Castro and did not invite comparison
between the codefendants.

       C. Expression of Opinion of Victim’s Relatives Regarding the
          Appropriate Sentence
       As noted, the prosecution called several relatives of the murder victims to
testify as to the impact of the murder on their lives. At the close of testimony by


                                          49
Molina’s father, John Molina, the prosecution asked: “And in your own mind, and
in your heart, what do you feel is the appropriate penalty for this jury to impose on
Richard Penunuri?” Molina responded: “That’s not for me to say.”
       Following this exchange, outside the presence of the jury, defense counsel
objected to this line of questioning on the ground that it might elicit from family
members expressions of a desire for vengeance. Counsel argued that such an
expression would be contrary to the instructions the jury was receiving that the
penalty phase determination “is not a question of revenge.” The trial court
disagreed, opining that both defense and prosecution witnesses should be able to
express their opinion about the appropriate penalty.
       Subsequently, the prosecutor asked Castillo’s father, Javier Castillo, if there
was “anything else that you feel that this jury should know in evaluating a penalty
for the killer of your son Jaime Castillo?” Castillo responded: “I have no
objections [to] the penalty that they are seeking. . . . I believe that these
individuals . . . especially Mr. Penunuri, . . . became very influential when he was
in the jailhouse and being [so] influential, he gave the order to kill my son. And I
don’t think he should be given that same opportunities to the same thing again.”
       Asked a similar question, Castillo’s stepmother, Linda Castillo, responded:
“I am for the death penalty. I want these people to be killed [by] lethal injection.
But it’s a shame that the penalty takes so long and the system lets these people
take advantage of the time they have.”
       Penunuri contends it was error to allow these witnesses to express their
views about the appropriate penalty. Although testimony by a victim’s family
members at the penalty phase of a capital trial regarding the impact of the murders
is constitutionally permissible, “the admission of a victim’s family members’
characterizations and opinions about the crime, the defendant, and the appropriate
sentence violates the Eighth Amendment.” (Payne v. Tennessee (1991) 501 U.S.

                                           50
808, 830, fn. 2.) Here, the trial court erroneously permitted the prosecution to ask
questions designed to elicit from the victims’ family members their opinions of
Penunuri and the appropriate sentence for him.
       The Attorney General contends the claim is forfeited because defense
counsel did not object to the statements of Javier and Linda Castillo. We disagree.
Although defense counsel did not articulate the constitutional basis of his
objection, he correctly brought to the court’s attention the inappropriateness of the
witnesses’ expressions of revenge and the conflict they posed to the jury
instructions. The trial court had expressed the view that this type of testimony was
appropriate, and further objection would have been futile. (See People v.
Anderson (2001) 25 Cal.4th 543, 587 [“Counsel is not required to proffer futile
objections”].)
       Nevertheless, we conclude that the erroneously admitted testimony was
harmless beyond a reasonable doubt. These brief statements by family members
were a small part of the prosecution’s case and were not relied on by the
prosecutor during closing argument. In the context of the totality of the evidence,
we see no reasonable possibility that the jury would have reached a different
penalty verdict without the admission of these statements.

       D. Insufficient Evidence of Assault Introduced in Aggravation

           1. Background
       In addition to the circumstances of the crime, the prosecution introduced
evidence of an uncharged crime pursuant to section 190.3, factor (b). That crime
was the armed assault against R.J. Uzel that occurred approximately two months
before the murders of Murillo and Molina. In the evening of May 20, 1997, Uzel,
Debra Recio, and a male friend (identified by Recio as “some guy Mike”) were
driving in the City of South Whittier. Recio was driving Uzel’s vehicle and



                                         51
parked in a McDonald’s parking lot so that Uzel could use a pay phone. Uzel and
the male friend exited the vehicle, and Uzel used the pay phone. Uzel was
approached by someone while using the phone.
       Uzel and his male friend returned to the car and got inside. Recio was
already in the driver’s seat. As Recio pulled out of the parking lot, bullets came
through the window on the passenger side of the car. The bullets shattered the
glass, went through Uzel’s leg, and skimmed Uzel’s chest. Recio drove them to
Whittier Hospital, where Uzel was treated for his wounds.
       In a hearing pursuant to Evidence Code section 402 on whether the Uzel
assault should be admitted under section 190.3, factor (b), Recio was asked if she
recalled exactly what Uzel had said when he left the hospital a day later. She
replied: “Not exactly. I just know that . . . It happened so long ago, all I
remember him it [sic] was Dozer, and he was trying, they were trying to figure out
how they could get back at Cole Street for shooting at them, vice versa.” She did
not see who had fired the shots. She also said that after she had returned from the
hospital, “a friend of mine had told me that it was Dozer. I don’t know who Dozer
was . . . all I knew was Dozer.”
       Before the jury, Recio testified that when Uzel got out of the hospital, “it
was out on the street that Dozer, whoever Dozer was, from Cole Street had [done]
it. [Uzel] did not come straight out [and say] it was Dozer.” She testified that she
never heard Uzel tell her from his personal knowledge that he knew who the
shooter was.
       Uzel also testified. He admitted that he had refused to testify voluntarily
and was in court on a subpoena. He also claimed that he did not see who had shot
him. He testified that before the shooting, while he was talking on a pay phone
outside the McDonald’s, a person approached him. He said that he did not
recognize the person, and other than the fact that the person was a male, he either

                                         52
could not remember or could not tell anything about the person, including his age
or ethnicity. He said that it was around 8:00 p.m. and dark outside. He said the
corner at which the incident occurred was a busy intersection with streetlights, but
that he did not know the person who had approached him and also did not know if
that person was the same person who had shot him.
       Uzel was asked about a police report in which he had apparently said that
shortly before the incident, he had been confronted by a Hispanic male who told
him to get off the phone and shouted, “This is Whittier.” He had also told the
police that this was the man who walked up to his car and shot him. In his
testimony, he denied that such an exchange had occurred and that he had told the
police about such an exchange. He generally denied that he had answered any of
the police questions. He said the police “kept on pressuring” him to talk and he
kept refusing. He also denied that he had told the police that he did not want his
assailant prosecuted because he “did not get a good look at this person.” He also
testified that he knew Penunuri from two years of high school. He denied he had
told Recio that “Dozer” was his assailant.
       Abraham Van Rood testified that he was in his car at an intersection in
front of the McDonald’s restaurant when he heard shots fired and saw the muzzle
of a gun. He said that he heard two or three shots and saw a young man holding a
gun and shooting at the car. He said the gunman ran to a vehicle and got in the
passenger seat, and then the car drove away. He observed the license plate
number and gave the information to Deputy Jeffrey Reiley, a police officer who
responded to the call at McDonald’s. The vehicle was registered to Diana H. at a
Pico Rivera address. This was the address shown on the driver’s license of
Bermudez, one of Penunuri’s gang confederates and codefendants in the Castillo
murder.



                                         53
           2. Analysis
       A capital defendant who believes that there is insufficient evidence of an
uncharged offense that the prosecution seeks to introduce in aggravation under
section 190.3, factor (b) must object to the admission of such evidence in order to
preserve the claim of insufficiency on appeal. (People v. Delgado (2017) 2
Cal.5th 544, 581–582.) Here, counsel did object, and a hearing was held.
       “ ‘ “[A] trial court’s decision to admit ‘other crimes’ evidence at the penalty
phase is reviewed for abuse of discretion, and no abuse of discretion will be found
where, in fact, the evidence in question was legally sufficient.” ’ ” (People v.
Tully (2012) 54 Cal.4th 952, 1027.) With respect to section 190.3, factor (b),
evidence of an uncharged crime introduced at the penalty phase, the prosecution
bears the burden of proving all the essential elements of the crime, and the jury
may not consider such evidence in aggravation unless the prosecution has met its
burden. (Tully, at p. 1027; People v. Boyd (1985) 38 Cal.3d 762, 778.) Thus,
sufficient evidence in this context means substantial evidence from which a
reasonable jury could have found beyond a reasonable doubt that the defendant
committed the uncharged crime.
       We conclude the trial court erred in allowing the jury to consider the assault
against Uzel because there is insufficient evidence that Penunuri committed that
assault. There was no direct evidence linking him to the crime. The testimony of
Recio and Uzel does not establish that either of them had personal knowledge that
it was Penunuri who had shot Uzel. The fact that the car was registered to
someone at an address shared with a gang confederate and codefendant is also
insufficient to establish Penunuri’s guilt. The only evidence pointing to Penunuri
as the perpetrator was Recio’s testimony that it was “on the street” that Penunuri
had been the shooter. The jury was aware Uzel was reluctant to testify, and it is
possible that statements Uzel made in his police report shortly after the shooting


                                         54
occurred might have provided a basis for reasonably inferring that Uzel had
personal knowledge of who shot him. But, as recounted above, Uzel denied he
had made the statements to the police and disavowed the truth of the statements.
No police officer was called to testify as to whether Uzel did indeed make the
statements in the police report, and the prosecutor’s statements about the police
report in his questions to Uzel were not evidence. (See People v. Samayoa (1997)
15 Cal.4th 795, 843.)
       There was an inconsistency between Recio’s statement that Uzel had
identified Penunuri as the shooter after he left the hospital and Uzel’s denial that
he made such a statement. But even if the jury believed Recio, she also denied
that Uzel’s identification was based on his personal knowledge. And Recio was
consistent in maintaining her own lack of personal knowledge of the shooter’s
identity. The only evidence linking Penunuri to the Uzel assault, Recio’s report of
rumors she heard, is not evidence “that is reasonable, credible, and of solid value”
(People v. Zamudio, supra, 43 Cal.4th at p. 357) sufficient to support a jury
finding beyond a reasonable doubt that Penunuri committed the assault.
       For such erroneous admission of uncharged crime evidence, as for other
errors at the penalty phase, we ask whether there is a reasonable possibility that
the error affected the verdict, a standard essentially the same as the harmless
beyond a reasonable doubt standard. (People v. Lewis (2008) 43 Cal.4th 415, 527
(Lewis).) We conclude under that standard that the admission of evidence of the
Uzel assault was harmless. It is true that at closing argument the prosecutor
referred to the assault, saying, among other things, that “Dozer even two months
before the Whittier murders actually tried to . . . kill and injure Jason Uzel at that
McDonald’s parking lot on May 20th, 1997. That kind of tells you what kind of
person Dozer was. Or still is, for that matter.”



                                          55
       Nonetheless, the jury in this case was properly instructed according to
CALJIC No. 8.87 that evidence of the Uzel assault could not be considered in
aggravation unless the jury was satisfied beyond a reasonable doubt that Penunuri
did in fact commit the assault. Given the lack of sufficient evidence, it appears
unlikely that the jury would have found beyond a reasonable doubt that Penunuri
committed the assault. In an analogous situation, this court has concluded that
when the jury was instructed on two theories of criminal liability, and only one
was supported by the substantial evidence, we can rely on the jury to reject the
theory with inadequate evidentiary support, and we will not overturn a jury verdict
absent an affirmative showing of a reasonable probability that the defendant was
found guilty on the erroneous theory. (People v. Guiton (1993) 4 Cal.4th 1116,
1129, 1131.) Guiton involved ordinary state law error, in which a defendant has
the burden of demonstrating a reasonable probability of prejudice from the error.
(Id. at p. 1130.) It is an open question whether the unlikelihood that the jury
significantly relied on evidence of the Uzel assault allows us to be confident
beyond a reasonable doubt that the jury did not so rely.
       But more fundamentally, the assault evidence was dwarfed by the
prosecution’s primary aggravating evidence: the capital crimes themselves, i.e.,
the murders of Molina and Murillo as well as Penunuri’s role in instigating the
conspiracy to murder Castillo to silence a witness. We therefore conclude that
because it is unlikely the jury found beyond a reasonable doubt that Penunuri
committed the Uzel assault, and because the prosecution’s case rested mainly on
evidence related to the three murders, the error of admitting the Uzel assault was
harmless beyond a reasonable doubt.




                                         56
       E. Failure to Define Reasonable Doubt at the Penalty Phase
       As noted, the jury in this case was properly instructed according to CALJIC
No. 8.87 that evidence of uncharged crimes must be proven beyond a reasonable
doubt before such crimes can be considered in aggravation at the penalty phase.
The jury was given CALJIC No. 2.90 regarding the meaning of reasonable doubt
during the guilt phase, but that instruction was not repeated at the penalty phase.
Furthermore, the trial court told the jury at the beginning of the penalty phase
instructions in open court to “[d]isregard all other instructions given to you in
other phases of this trial.”
       Penunuri is correct that the trial court erred in failing to furnish a reasonable
doubt instruction at the penalty phase. “Normally, a trial court must instruct the
jury on general principles of law that are closely and openly connected with the
facts and necessary for the jury’s understanding of the case, even absent a request
from the defendant. [Citation.] Thus, if a trial court instructs the jury at the
penalty phase not to refer to instructions given at the guilt phase, it later must
provide the jury with those instructions applicable to the evaluation of evidence at
the penalty phase.” (Lewis, supra, 43 Cal.4th at p. 535.) Because evidence of an
uncharged crime was introduced at the penalty phase, the trial court should have
instructed as to the meaning of reasonable doubt according to CALJIC No. 2.90.
(See Lewis, at p. 534.)
       But the error was harmless because “[t]here is no reasonable possibility the
jury would have believed that the reasonable doubt standard it was required to
apply at the penalty phase was any different than the standard it had just applied at
the guilt phase . . . .” (Lewis, supra, 43 Cal.4th at p. 536; see also People v.
Cowan, supra, 50 Cal.4th at pp. 494–495.) Penunuri contends this case is
different because the trial court gave the instruction that the prosecution does not
bear the burden of proof at the penalty phase of the trial. This instruction, while


                                          57
generally correct, does not apply to uncharged crime evidence, for which the
prosecution does bear the burden of proof beyond reasonable doubt. Yet the jury,
which was specifically instructed that it must be convinced beyond a reasonable
doubt that Penunuri did in fact commit the assault against Uzel, would have
understood it was the prosecutor’s burden to convince the jury beyond a
reasonable doubt. There is no reasonable possibility that the jury misunderstood
its role in eliminating from consideration evidence of any uncharged crime when
that crime had not been proven by the prosecution beyond a reasonable doubt.

       F. Constitutional Challenges
       Penunuri raises several constitutional challenges to the death penalty statute
that we have previously rejected. The California death penalty statute is not
impermissibly broad, whether considered on its face or as interpreted by this court.
(People v. Masters (2016) 62 Cal.4th 1019, 1077 (Masters).) Section 190.3, factor
(a), regarding the circumstances of the crime, whether on its face or as interpreted
and applied, does not permit the arbitrary and capricious imposition of a sentence
of death. (Masters, at p. 1077.)
       The California death penalty statute is not invalid for failing to require
(1) written findings or unanimity as to aggravating factors, (2) proof of all
aggravating factors beyond a reasonable doubt, (3) findings that aggravation
outweighs mitigation beyond a reasonable doubt, or (4) findings that death is the
appropriate penalty beyond a reasonable doubt; nor do the decisions in Ring v.
Arizona (2002) 536 U.S. 584, Apprendi v. New Jersey (2000) 530 U.S. 466,
Blakely v. Washington (2004) 542 U.S. 296, and Cunningham v. California (2007)
549 U.S. 270 affect the validity of California’s death penalty law. (Masters,
supra, 62 Cal.4th at p. 1076; People v. Moore (2011) 51 Cal.4th 1104, 1145.)
Review for intercase proportionality is not constitutionally compelled. (Masters,



                                          58
supra, 62 Cal.4th at p. 1076.) We have repeatedly upheld the constitutionality of
using unadjudicated criminal activity under section 190.3, factor (b) at the penalty
phase. (People v. Duff (2014) 58 Cal.4th 527, 563.) The jury need not make a
unanimous finding under section 190.3, factor (b). People v. Lewis and Oliver
(2006) 39 Cal.4th 970, 1068.)
       Use of the adjectives “extreme” and “substantial” in section 190.3, factors
(d) and (g) is constitutional. (Masters, supra, 62 Cal.4th at p. 1077.) “The trial
court was not constitutionally required to inform the jury that certain sentencing
factors were relevant only in mitigation, and the 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. Morrison (2004) 34
Cal.4th 698, 730.)
       “ ‘Because capital defendants are not similarly situated to noncapital
defendants, California’s death penalty law does not deny capital defendants equal
protection by providing certain procedural protections to noncapital defendants but
not to capital defendants. [Citations.]’ ” (Masters, supra, 62 Cal.4th at pp. 1076–
1077.) “ ‘The alleged inconsistency between regular imposition of the death
penalty and international norms of human decency does not render that penalty
cruel and unusual punishment under the Eighth Amendment [citation]; nor does
“regular” imposition of the death penalty violate the Eighth Amendment on the
ground that “ ‘[i]nternational law is a part of our law’ ” [Citation.].’ ” (Id. at
pp. 1077–1078.)

       G. Cumulative Error
       Penunuri contends that the cumulative effects of the errors occurring at the
guilt and penalty phases require reversal of the death judgment because it violates



                                          59
due process, the right to a jury trial, and the prohibition against cruel and unusual
punishment under both the United States and California Constitutions. We have
concluded that the erroneous admission of Delaloza’s and Arias’s testimonial
statements were harmless beyond a reasonable doubt at the guilt phase and that an
erroneous accomplice instruction was likewise harmless. We have also
determined that the admission of Delaloza’s statements was not prejudicial at the
penalty phase. In addition, we have concluded that there was no reasonable
possibility that the erroneous admission of the assault against Uzel and the
testimony by victim family members about the appropriate penalty affected the
penalty phase verdict. Nor was there a reasonable possibility that the jury
misunderstood its charge to consider unadjudicated criminal conduct in
aggravation only if the prosecution proved such conduct beyond a reasonable
doubt. Nor, notwithstanding an isolated inappropriate remark, did the trial court’s
statements and instructions considered in their totality lead the jury to believe that
comparison of Penunuri’s culpability with that of his codefendant Castro was
relevant to its assessment of the proper penalty. Nor was there a reasonable
possibility that Penunuri’s absence during codefendant Castro’s penalty phase
closing argument affected the verdict. We conclude that there is no reasonable
possibility that these errors, considered cumulatively, affected the penalty verdict.




                                          60
                                 V. CONCLUSION
       The judgment is affirmed.
                                                        LIU, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
KRUGER, J.
WILLHITE, J.*




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

                                         61
      CONCURRING AND DISSENTING OPINION BY CUÉLLAR, J.
       The prosecutor sought to convince the jury in this case not only that
defendant Richard Penunuri was guilty of murder, but that he actually pulled the
trigger of the gun that killed Brian Molina and Michael Murillo. So when the trial
court erroneously allowed in the accomplice’s police statements shifting all the
blame to Penunuri — without ever giving him an opportunity to cross-examine the
accomplice — it exposed the jury to critical information supporting the
prosecution’s theory that Penunuri must have been the triggerman. It is, at best,
highly speculative to presume that the death sentence was just as likely even if the
jury had rejected the prosecution’s theory that Penunuri pulled the trigger. There
is no basis for treating the mistaken admission of these statements as a minor
rounding error in the evidentiary calculus.
       In theory, a person found guilty of a murder involving special
circumstances is eligible for the death penalty regardless of whether the person
was the actual killer or merely aided and abetted the murder. (See Pen. Code,
§ 190.2.) In practice, juries are less willing to vote for death when the defendant’s
role involved aiding and abetting the commission of a murder by another.
Because penalty trials ask jurors to make moral judgments about how to align a
particular crime with a suitable punishment and not simply legal determinations of
eligibility, it is no surprise that an accomplice to a murder “is far less likely to
receive the death penalty than the triggerman.” (People v. Garcia (1984) 36
Cal.3d 539, 546.)
       Which is why the prosecutor found it so crucial in this case not only to
show Penunuri participated in the Molina and Murillo double murder, but to
establish he was the triggerman. By the time the penalty phase began, Penunuri
already stood convicted of three murders: the Molina and Murillo murders in the
backyard of a house on Goodhue Street in Whittier, and the murder of Jaime
Castillo in the San Gabriel Mountains three months later. The prosecution
conceded that Penunuri –– who was in custody at the time –– did not personally
kill Castillo. Instead the prosecution argued Penunuri enlisted his codefendants in
carrying out the murder of Castillo to eliminate him as a witness. But to raise the
likelihood of a death verdict, the prosecution theorized that it was Penunuri who
shot and killed Molina and Murillo — and that he did so in a cold and inhuman
manner. Time and again, the prosecutor told the jury not only that Penunuri was
criminally involved in the scheme that led to the victims’ deaths, but that Penunuri
“was actually the triggerman,” that “[h]e was the person who pulled the trigger.”
The prosecutor argued that the location of Molina and Murillo’s gunshot wounds
— as well as the shooter’s failure to give the victims a chance to plead for their
lives or defend themselves — was evidence of the shooter’s “brutal,” “merciless,”
and “unforgivable” conduct. Indeed, the prosecutor posited that even if the jury
discounted all the other crimes and aggravating evidence, “the way that Brian
died” — awakened in the middle of the night by the shooting of his friend, chased
down, and then shot nine times — “is a factor in aggravation beyond compare
which warrants the death penalty in and of itself.”
       So if anyone understood just how critical the shooter’s identity was to the
People’s case for death, it was the prosecutor. The best evidence pegging
Penunuri as the triggerman in the Molina and Murillo murders was the taped
statement of his accomplice, Alejandro Delaloza. Indeed, Delaloza’s statement
made it plain to the jury that Penunuri had to be the shooter. According to

                                          2
Delaloza, he and Penunuri were the only people in the car when it arrived at the
murder scene on Goodhue Street. According to Delaloza, it was only Penunuri
who got out of the car and approached the house. And, Delaloza testified, the
gunfire began just a few minutes after Penunuri got out of the car. When the
shooting stopped, Penunuri came running and got back in the car. If credited,
Delaloza’s statement established beyond a reasonable doubt that Penunuri was the
actual killer.
       The People’s core problem is that Delaloza did not testify in this case, and
Penunuri had no opportunity to cross-examine him. In accordance with the
People’s concession, the majority holds — and I fully agree — that the admission
of Delaloza’s out-of-court statements violated Penunuri’s Sixth Amendment right
to confront witnesses. I also concur with the majority that there is no reasonable
possibility this error affected the Molina and Murillo murder convictions.
Properly admitted evidence overwhelmingly showed that Penunuri was at the
murder scene and, even if not the triggerman, aided and abetted the murders by
serving as a lookout or by blocking the victims’ escape.
       What I do not understand and cannot accept, though, is the majority’s
failure to seriously consider what effect this error had on the firearm use
enhancement1 and the penalty determination that resulted in a death judgment
against Penunuri. In the absence of his co-perpetrator’s statements, one cannot say

1       Penunuri argues that the error in admitting Delaloza’s statement “requires
reversal of [his] convictions in counts 1, 2, 4 and 5.” Count 4, which charged the
Molina murder, included an allegation that Penunuri personally used a firearm.
Count 5, which charged the Murillo murder, likewise included an allegation that
Penunuri personally used a firearm. Nowhere did Penunuri state that his challenge
to the convictions in counts 4 and 5 excluded the use enhancements specifically
recited in those counts. Indeed, he argued at length in his briefing that Delaloza’s
statements were wrongfully used to implicate him as the gunman and exclude
Delaloza. I therefore do not understand how or why the majority can say that this
claim was not raised on appeal.

                                          3
with confidence that the jury here would have concluded that Penunuri was the
shooter. The jury would have been left with nothing more than the fact that
Penunuri had been in possession of a gun earlier that night — and without facts to
establish that Penunuri was the only person in the Cadillac who was armed. This
is far too thin a reed on which to support the jury’s enormously consequential
decision to impose a death judgment. Because the Sixth Amendment error likely
skewed the jury’s assessment of the appropriate penalty, I respectfully dissent.
                                         I.
       The evidence concerning Penunuri’s role in the Molina and Murillo
murders was entirely circumstantial. The prosecution established that fellow gang
members Penunuri, Delaloza, and Castillo had been together in Delaloza’s white
Cadillac when they robbed two people in a Ralphs market parking lot –– and
again, a few hours later, when Penunuri intimidated Luke Bissonnette (a lapsed
gang member) and pointed a gun at Bissonnette’s friend, Carlos Arias, outside a
Hornell Street home. Bissonnette and Arias ran away and ended up at Laraine
Martinez’s nearby home on the north-south segment of Goodhue Street. They
joined a larger group, which included eventual murder victims Molina and
Murillo, on the back patio and talked for a while. Molina and Murillo were
sleeping, and remained so when the rest of the group went inside.
       Sometime later, a white Cadillac drove up and parked on the east-west
segment of Goodhue Street, about one house away from Martinez’s house.
Suddenly, the people in Martinez’s house heard gunfire. After the gunfire
stopped, Bissonnette looked out his front window and caught a glimpse of
someone across the street who, from the back, looked like Penunuri. Meanwhile,
neighbor Matthew Walker, who lived on the east-west segment of Goodhue Street,
noticed the empty Cadillac and then spotted two men exit the backyard of




                                         4
Martinez’s house from the side and enter the car. Molina and Murillo had been
shot on the patio: Murillo as he slept, and Molina as he tried to escape.
       The next day, police seized a large black jacket from Penunuri’s bedroom.
The jacket resembled the jacket Bissonnette had seen on the man across the street
shortly after the shooting. But police also had found a black jacket at Delaloza’s
residence, along with keys to a white Cadillac, fruits of the Ralphs robbery, and a
plastic box of nine-millimeter ammunition with some bullets missing. Ballistics
tests showed that the victims had each been shot with the same nine-millimeter
semiautomatic pistol. Penunuri’s jacket was tested for gunshot residue; none was
found. Delaloza’s jacket was never tested.
       Recordings of two jailhouse meetings between Penunuri and his mother
were played for the jury. In the first, they appeared to be discussing a possible
alibi. In the second, Penunuri said that Castillo had been with them at the Ralphs
parking lot and had probably been with Delaloza later that night, “cause look at
where he’s at . . . he died . . . someone killed him.”
                                          II.
       The Sixth Amendment’s confrontation clause guarantees a criminal
defendant’s right “to be confronted with the witnesses against him.” (U.S. Const.,
6th Amend.; see Pointer v. Texas (1965) 380 U.S. 400, 406.) The “principal evil”
at which the clause is directed was the “use of ex parte examinations as evidence
against the accused” (Crawford v. Washington (2004) 541 U.S. 36, 50) — like the
taped interview of Delaloza. As the majority acknowledges, “ ‘Unconfronted
accomplice statements to authorities [are] “core testimonial statements that the
Confrontation Clause plainly meant to exclude.” ’ ” (Maj. opn., ante, at p. 34.)
       Such evidence tends to be fundamentally unfair. We considered why in
People v. Anderson (1987) 43 Cal.3d 1104. Erroneous admission of a co-
perpetrator’s extrajudicial statements “ ‘can have “devastating” consequences to a

                                           5
nonconfessing defendant, adding “substantial, perhaps even critical, weight to the
Government’s case.” . . . Such statements go to the jury untested by cross-
examination and, indeed, perhaps unanswered altogether unless the defendant
waives his Fifth Amendment privilege and takes the stand.’ ” (Anderson, at p.
1127.) Consequently, to determine whether an error of this type is harmless
beyond a reasonable doubt, we developed a two-part “rule” requiring the People to
show “the properly admitted evidence is overwhelming and the incriminating
extrajudicial statement is merely cumulative of other direct evidence.” (Id. at p.
1129; see People v. Jennings (2010) 50 Cal.4th 616, 652 [“There was
overwhelming circumstantial evidence apart from [the declarant’s] statement”]; id.
at p. 653 [“There was overwhelming direct and circumstantial evidence
establishing that . . . defendant also brutally and continuously physically abused
[the victim]”]; ibid. [“Defendant did not dispute that he starved and physically
abused [the victim]”]; id. at p. 655 [the declarant’s “statements were merely
cumulative of actual and adoptive admissions made by defendant during the
videotaped joint interview”]; People v. Burney (2009) 47 Cal.4th 203, 232
[quoting Anderson].) The People have not satisfied either part of the rule: They
have not shown that properly admitted evidence of the shooter’s identity is
overwhelming, nor have they shown that Delaloza’s statement was cumulative of
other direct evidence.
       In fact, the case for Penunuri being the shooter — apart from Delaloza’s
statement — was strikingly meager. There were no eyewitnesses to the shooting,
nor was there a single piece of physical evidence tying Penunuri to the crime. The
prosecution hammered home the theory that Delaloza was the getaway driver,
leaving Penunuri as the shooter. Support for this theory depended crucially — as
the prosecutor himself conceded — on Delaloza’s own statement that he was
driving the Cadillac when they arrived at Goodhue Street. Forced to put aside this

                                          6
direct evidence, the majority suggests the jury could have inferred Delaloza was
the driver from Bissonnette’s properly admitted testimony that Delaloza was
driving when the white Cadillac arrived at the Hornell Street house prior to the
shooting. (Maj. opn., ante, at pp. 18-19.) But according to Randy Cordero, one of
the robbery victims at Ralphs a few hours earlier, Penunuri was driving the
Cadillac at that time. So it would be difficult to say which man — Penunuri or
Delaloza — was driving when they arrived at Goodhue Street, which (according to
the witnesses) was some 90 minutes to three and a half hours after the Hornell
Street incident.
       Even if we assumed Delaloza was indeed the driver when the men arrived
at Goodhue Street, we would still be hard-pressed to say which of the men was the
shooter. Without Delaloza’s improperly admitted testimony, absolutely no
evidence indicated that anyone remained in the car during the shooting. Matthew
Walker, a neighbor, heard gunfire and looked out his front window to find a white
Cadillac parked on the east-west segment of Goodhue Street. He then spotted two
individuals exit the backyard across the street and enter the empty Cadillac.
Walker watched as the car proceeded eastbound on Goodhue, then around the
bend and northbound on Goodhue until it went out of sight.
       What makes identification of the shooter even more fraught in this case is
the reasonable possibility –– based on properly admitted testimony –– that a third
individual may have been involved. Luke Bissonnette testified that he briefly
glimpsed a man in a dark, heavy jacket with a hood on a different part of Goodhue
Street — the north-south segment — across the street from his house after the
shooting. Based on the jacket, the silhouette, and the back of the man’s head —
and nothing else — Luke identified the man as Penunuri. As the defense pointed
out, there was reason to question that identification: Delaloza had a black jacket
“similar” to Penunuri’s, as well as a black sweatshirt with a hood; an off-duty

                                         7
officer who spotted the white Cadillac earlier that night testified that the driver and
the front passenger were “dressed in the same fashion,” each wearing a big, bulky
jacket “consistent with” Penunuri’s jacket; and a defense expert testified that the
prevailing conditions rendered Luke’s identification of Penunuri as the man across
the street “very unreliable.” But even if the identification inspired confidence, it
would not demonstrate that Penunuri — as opposed to one of the two other men at
the scene — was the triggerman.
       To bolster its contention that Delaloza’s testimony was inconsequential to
the jury’s determination, the majority also relies on the evidence that Penunuri was
in possession of a gun during the Ralphs robbery and during the Arias assault on
Hornell Street. (Maj. opn., ante, at pp. 19, 43.) This evidence would tend to
support the inference that he was in possession of a gun at Goodhue Street, but
such an inference is hardly an inevitable one and thus falls well short of
establishing that the admission of Delaloza’s statement was harmless beyond a
reasonable doubt. Nor can the majority get much mileage out of Cordero’s
assertion that the gun he saw at the Ralphs parking lot was a nine-millimeter.
Cordero was a twice-convicted felon who admitted lying under oath at an earlier
proceeding relating to these very crimes.
       Other evidence in this case, moreover, tended to show that Penunuri was
not the only one in the Cadillac armed with a gun that night. Tammy Winters, a
cashier at Ralphs who was the prosecution’s first witness, testified that after
Cordero retrieved a bat from the trunk of his car, she noticed one of the men from
the white Cadillac reach around his right hip area. She saw something “bulky,”
something “that wasn’t pants and it wasn’t a shirt.” Winters “assumed it was a
gun, and so that’s when I got in my car and I wanted to get the heck out of there.”
Winters testified that the hair length and facial hair of the man with the bulky
object was consistent with Delaloza, not with Penunuri.

                                            8
       What seems far more significant in identifying the shooter, in my view, are
two other facts. Neither points to Penunuri as the shooter –– and neither is even
mentioned in the majority’s harmless error analysis.
       First, the police found a box of nine-millimeter ammunition in Delaloza’s
bedroom. According to the firearm examiner, all of the expended casings and
bullets found at the murder scene — as well as a live round — came from the
same nine-millimeter semiautomatic pistol. So did a live round recovered from
Delaloza’s house. Although these casings, bullets, and rounds were manufactured
by several different companies, the ammunition box found in Delaloza’s bedroom
contained ammunition from each of those companies.
       Second, no gunshot residue was ever found on Penunuri’s jacket — despite
expert testimony that one would have expected to find it there if Penunuri had
been the shooter. The defense demonstrated in court that the sleeves of Penunuri’s
jacket reached past his knuckles, almost to the middle of his fingers, even when
his arms were extended as though shooting a gun. Lawrence Baggett, a firearm
expert, testified that after firing 11 rounds, there would be gunshot residue not
only on the nine-millimeter semiautomatic pistol itself, but also on the sleeves of a
jacket extending that far down the shooter’s hand. Baggett opined, in addition,
that one would expect to find gunshot residue in a jacket pocket if the weapon had
been placed in the pocket. Recall that Luke never said he saw the person across
the street with a gun, which suggests that such a person — if indeed the shooter —
may have placed the gun in his jacket pocket. Yet Penunuri’s jacket was tested for
gunshot residue on the inside and outside of both sleeves and the inside and
outside of both pockets, and no particles were found.
       Where (as here) the evidence of the triggerman’s identity is so ambiguous,
the People cannot show beyond a reasonable doubt that the jury would not have
relied on Delaloza’s account. The majority speculates that the jury would have

                                          9
discounted Delaloza’s statement because he subsequently “had been tried and
convicted for the Goodhue Street murders.” (Maj. opn., ante, at pp. 40-41.) But
the prosecutor turned even that fact to his advantage by telling the jury that the
“concept” of aiding and abetting “becomes important when we are talking about
Alejandro Delaloza and the Goodhue Street murders. [¶] If you assist somebody
in committing a crime and you know that that person is in fact committing the
crime and you do something to assist them or help them, either as a lookout or
either as a driver — and these are just examples — of a getaway car, you’re
becoming an aider and abettor.” The prosecutor then seized on Delaloza’s
conviction to argue that the role of aider and abettor to the Molina and Murillo
murders had already been filled — by Delaloza. According to the prosecutor,
“[T]his helps explain why Hondo [Delaloza’s nickname] eventually was convicted
for the Goodhue Street murders in a separate case as an accomplice, as an aider
and abettor to Richard Penunuri, under that law.”
       Considered in context, Delaloza’s unconfronted statements effectively
identified Penunuri to the jury as the shooter. Delaloza was clear and emphatic
that at the time he saw Penunuri return, he “didn’t hear any shots” and that “the
shooting stopped an[d] then . . . [Delaloza] saw him coming out.” Nor did
Delaloza assert, as the majority mistakenly contends, “that Penunuri was
unarmed.” (Maj. opn., ante, at p. 41.) Delaloza actually said that while he didn’t
see Penunuri with a gun, it was nonetheless “possible” that Penunuri “coulda had”
a gun and “coulda hide it.”
       At core, the majority seems determined to treat the confrontation clause
violation as harmless merely because Delaloza’s improperly admitted statements
“were corroborated by other evidence presented at trial.” (Maj. opn., ante, at p.
42.) Examine that “other evidence” closely, though, and it reduces merely to the
weak inference “that he, Penunuri, was the one carrying [a] gun, as he had a few

                                         10
hours before in the Ralphs parking lot and at Hornell Street.” (Id. at p. 41.) In
effect, the majority seeks to leverage the “slight” corroboration (People v. Romero
and Self (2015) 62 Cal.4th 1, 37) of an accomplice’s unconfronted statement that
should never have been admitted into proof that the error in admitting the
accomplice’s extrajudicial statement was harmless beyond a reasonable doubt.
This approach bears only a passing, and quite pale, resemblance to the analysis of
harmlessness beyond a reasonable doubt we undertake under well-established
precedent. (See People v. Jennings, supra, 50 Cal.4th at pp. 652-655; People v.
Burney, supra, 47 Cal.4th at p. 232; People v. Anderson, 43 Cal.3d at p. 1129.)
        Even worse, the prosecution actively invoked Delaloza’s statement to
corroborate and bolster weaknesses in its own evidence. The extent to which the
prosecution relied on improperly admitted evidence proves pivotal in assessing
“ ‘what the jury actually decided and whether the error might have tainted its
decision.’ ” (People v. Pearson (2013) 56 Cal.4th 393, 463; see People v. Grimes
(2016) 1 Cal.5th 698, 723 [relying on the prosecutor’s argument to demonstrate
“the centrality of the issue” to the penalty determination]; People v. Harris (1994)
9 Cal.4th 407, 430 [“the jury certainly was aware of the . . . arguments of counsel
. . .”]; accord, Ghent v. Woodford (9th Cir. 2002) 279 F.3d 1121, 1131 [“The
State’s own actions at trial belie its current arguments regarding the importance of
[the] testimony. Its actions demonstrate just how critical the State believed the
erroneously admitted evidence to be”]; Exxon Corp. v. Dep’t of Conservation &
Natural Res. (Ala. 2002) 859 So.2d 1096, 1108 [“the State’s emphasis on the letter
throughout the trial belies any claim of harmless error”]; State v. Walls (Iowa
2009) 761 N.W.2d 683, 688 [“The State’s assertion on appeal that the effect of the
interrogation is comparatively minimal is belied by its use of the testimony at
trial”].)



                                         11
       An examination of how the prosecution used Delaloza’s unconfronted
statement is thus not only essential to the harmless error inquiry, but also revealing
in terms of just how essential the statement was to the prosecution’s theory that
Penunuri was the shooter. To firm up Luke’s identification of Penunuri, which
was under attack by the defense expert, the prosecutor explicitly relied on
Delaloza’s statement placing Penunuri at the scene. The prosecutor pointed out in
particular that the defense expert had “no idea that . . . Delaloza[] actually told
sheriff’s investigators that [Penunuri] was in fact at that house across the street at
the time of this particular identification”; stressed to the jury that “assuming
hypothetically it’s truthful then, . . . that corroborating evidence, assuming it’s
truthful, . . . only helps support what a particular witness says”; and wondered
aloud to the expert, “I just don’t understand why you could disregard what other
people —” before an objection could be interposed to this argumentative comment
about Delaloza’s incriminating statement.2
       There’s more. During closing argument, the prosecutor tried to counter the
defense theory that Delaloza must have been the shooter by emphasizing (once
again) Delaloza’s unconfronted statement: “Could have been Hondo? Could have
been Alejandro Delaloza? [¶] Not likely, because Alejandro Delaloza, through
his statement, said that he parked near the Goodhue Street house; Dozer’s the one
that got out of the car; Dozer’s the one that went into the backyard; that’s when he
heard gunfire, and all of a sudden Dozer appears.”




2       The prosecutor’s other method of shoring up Bissonnette’s identification
was to point out that “Carlos Arias, whose testimony was read to you, also said
that it was Dozer [Penunuri’s gang moniker] leaving the house.” But the majority
concedes, as it must, that the introduction of Arias’s unconfronted statement was
itself yet another Sixth Amendment violation (see maj. opn., ante, at p. 32) — and
thus further exacerbated the prejudice Penunuri suffered in this case.

                                          12
       And still more. The prosecutor relied on Delaloza’s statement to rebut
concerns that Delaloza and Penunuri were dressed alike that night: “If you look at
Hondo’s own statement to law enforcement when he implicated Penunuri in that
crime, he was describing the clothing he was wearing that night as simply being a
sweatshirt, not a jacket of any kind.” Indeed, the prosecutor was sufficiently
anxious about the shooter’s identity that his concluding argument concerning the
Molina and Murillo murders focused entirely on the theory that Penunuri could be
guilty as an aider and abettor: “The gunman, be it Richard Penunuri or one of the
two other occupants, Hondo or Jaime Castillo, gets out and walks around the
property toward the backyard with the gun in his hand. . . . If [the victims] try to
escape and jump the block wall which separates the two properties, where are they
heading? They’re heading right to the trap. Right to where the two individuals are
waiting, cutting off the possible route of escape. What does that tell us? . . . If it
was Jaime Castillo and Dozer, or Hondo and Dozer, actually blocking off the route
of escape for the possible victims, then they’re acting as accomplices as well and
they’re just as guilty for the murder as though they pulled the trigger at the back
patio area. That’s accomplice liability. . . . So what does that mean if Richard
Penunuri is in fact an accomplice as opposed to an actual shooter? Makes no
difference if there’s GSR on his coat or not. Doesn’t matter. Makes no difference
if Hondo is wearing a black jacket that night. And it makes no difference who was
driving the car, the Cadillac.”
       Jurors are entitled to selectively credit a witness’s statements, a prospect
that becomes ever more likely when the prosecution invites them to do so. That’s
precisely what the prosecution did here. As the prosecution made abundantly
clear, the two men did not drive to Goodhue Street for the innocent purpose of
chatting up a gang member’s ex-girlfriend (see maj. opn., ante, at p. 43), nor was
Delaloza unaware that Penunuri had a gun. The prosecution conceded that those

                                          13
aspects of Delaloza’s statements were disproved by his murder convictions. But
when it came to proving which of the two (or three) men at the scene was the
triggerman, the prosecution resorted regularly and consistently to Delaloza’s
statements pointing to Penunuri. Although the majority blithely asserts it is not
“likely” that the jury would have disbelieved Delaloza’s self-serving statements
yet still have credited his identification of Penunuri as the shooter (id. at p. 40),
this was exactly what the prosecution asked the jury to do. (See U.S. v. De Loach
(D.C. Cir. 1974) 504 F.2d 185, 192 [“ ‘[A prosecutor’s] own estimate of his case,
and of its reception by the jury at the time, is, if not the only, at least a highly
relevant measure now of the likelihood of prejudice’ ”].) Only by shutting its eyes
and covering its ears to the argument the prosecutor presented to the jury can the
majority deny the existence of — at a minimum — a reasonable possibility that
the jury believed some of Delaloza’s statements without accepting the veracity of
others.
          On this record, there was reasonable doubt whether Penunuri was the only
one with a gun that night; whether he was the driver when the Cadillac arrived at
Goodhue Street some hours after leaving Hornell Street; whether he (or anyone
else) remained in the car during the shooting; which of the men committed the
shooting; whether Penunuri and Delaloza were wearing similar jackets that night;
and whether Penunuri was the man in the bulky, hooded jacket across the street
after the shooting. At every juncture, though, the prosecutor invoked Delaloza’s
statements to neutralize these defense arguments or fill in gaps in the other,
properly admitted evidence. It is a bit late in the game to speculate that the jury
would have categorically discounted Delaloza’s statement, when the prosecutor’s
argument focused so squarely on making sure that the jury believed it in critical
respects. And it is difficult to square the majority’s insistence on the trivial role
played by Delaloza’s statement with the weight and significance the prosecutor

                                           14
very clearly thought it had. (See People v. Grimes, supra, 1 Cal.5th at p. 722;
People v. Roder (1983) 33 Cal.3d 491, 505.)
       At a minimum, the record establishes that the evidence of Penunuri’s role
in the murders was decidedly not overwhelming. Nor was Delaloza’s statement
cumulative of other, properly admitted evidence. I note that the majority nowhere
claims otherwise.
                                        III.
       A confrontation clause violation involving the unconfronted, incriminating
statements of an accomplice is harmless beyond a reasonable doubt only “ ‘if the
properly admitted evidence is overwhelming and the incriminating extrajudicial
statement is merely cumulative of other direct evidence.’ ” (People v. Burney,
supra, 47 Cal.4th at p. 232.) The majority does not dispute that unconfronted,
incriminating statements of an accomplice were improperly admitted here. Nor
have the People shown that the properly admitted evidence identifying Penunuri as
the shooter was overwhelming or that Delaloza’s incriminating statements were
merely cumulative of other, properly admitted evidence. Consequently, the
People have not demonstrated that the error in admitting Delaloza’s incriminating
out-of-court statements was harmless beyond a reasonable doubt insofar as it
affected the jury’s determination of the triggerman’s identity in the Molina and
Murillo murders. (See In re Sears (1969) 71 Cal.2d 379, 387 [“the evidence
submitted against defendant did not so conclusively establish his guilt that the
introduction into evidence of his brother’s confession did not contribute to the
verdicts against him”].)3 I would reverse the jury’s finding that Penunuri

3      Accord, U.S. v. Doherty (11th Cir. 2000) 233 F.3d 1275, 1282 (error in
admitting an accomplice’s unconfronted statement “is harmless only if the
properly admitted evidence of guilt is so overwhelming, and the prejudicial effect
of the co-defendant’s statement so insignificant, that beyond any reasonable doubt


                                         15
personally used a firearm in committing those murders. (See Pen. Code,
§ 12022.5, former subd. (a)(1).)
       The Sixth Amendment violation also infected the penalty determination.
Although the inquiry in both the guilt and the penalty phases is whether the federal
constitutional error in admitting Delaloza’s statement was harmless beyond a


the improper use of the statement was harmless”); U.S. v. Glass (10th Cir. 1997)
128 F.3d 1398, 1404 (reversing the judgment where the improper admission of an
accomplice’s police statement was not mitigated by “overwhelming” evidence);
Jefferson v. State (Ark. 2004) 198 S.W.3d 527, 537 (“We do not agree with the
State’s contention that even if [the accomplice]’s statement was excluded, there
was still overwhelming evidence that Jefferson actively participated in the
crimes”); Morten v. U.S. (D.C. 2004) 856 A.2d 595, 602 (reversing the judgment
“[b]ecause the jury may well have accepted the prosecutor’s entreaty to consider
the hearsay statements as proof that appellants had conspired to commit murder”);
Hamilton v. State (Ga.Ct.App. 1982) 292 S.E.2d 473, 474 (reversing the judgment,
even though the accomplice’s statement was “ambiguous”); People v. Addison
(Ill.App.Ct. 1992) 603 N.E.2d 19, 25 (reversing the judgment even though “the
evidence properly admitted against Addison amply supports his conviction for
murder”); State v. Jefferson (Iowa 1997) 574 N.W.2d 268, 276 (reversing the
judgment, even though “the untainted evidence against Jefferson was abundant,”
because the issue of identity “was hotly contested at trial”); Lowe v. Com.
(Ky.Ct.App. 1972) 487 S.W.2d 935, 936 (reversing the judgment where the
accomplice’s statement was neither “insignificant” nor the “other evidence of
Lowe’s guilt so overwhelming”); People v. Banks (Mich. 1991) 475 N.W.2d 769,
778 (“[t]he testimony of the [decedent’s] three companions, while damaging to the
defendant, would have born considerably less weight in the context of the
defendant’s defense of misidentification, without the accusations of defendant by
[his accomplices]”); State v. Alvarez-Lopez (N.M. 2004) 98 P.3d 699, 709-711;
State v. Jackson (S.C.Ct.App. 2014) 765 S.E.2d 841, 854 (reversing the judgment
because “we do not believe this ‘properly admitted evidence of guilt is so
overwhelming, and the prejudicial effect of the codefendant’s admission is so
insignificant by comparison,’ ” — even though “the remaining evidence tending to
establish Jackson’s guilt is strong”); Evans v. State (Tex.Crim.App. 1976) 534
S.W.2d 707, 710-711; Rankins v. Com. (Va.Ct.App. 2000) 523 S.E.2d 524, 534
(reversing the judgment because “the evidence of appellant’s guilt, other than [the
accomplice]’s statement, was not overwhelming”).




                                        16
reasonable doubt, the error’s effect on the penalty determination does not turn on
whether the remaining evidence overwhelmingly established that Penunuri was the
shooter or that the statement was cumulative of other, properly admitted evidence.
The decision whether to sentence a defendant to death or to life in prison is a
normative conclusion about the penalty appropriate for the individual defendant.
(See People v. Jones (2012) 54 Cal.4th 1, 75.) Accordingly, the People bear the
burden to show that there is no reasonable (i.e., realistic) possibility that the jury
would have rendered a different verdict in the absence of the error. (See People v.
Grimes, supra, 1 Cal.5th at p. 721; People v. Neal (2003) 31 Cal.4th 63, 86.) This
is a heavy burden, and rightly so. A death judgment may be upheld only if we can
say “that the ‘verdict actually rendered in this trial was surely unattributable’ ” to
the error. (Neal, at p. 87.)
       Since 1976, the United States has carried out more than 1,400 executions;
fewer than 1.5 percent involved a capital defendant who did not actually kill.4 The
odds that this particular jury would have sentenced Penunuri to death are likely
even lower. A review of what the jury actually weighed on the issue of penalty
“ ‘ “as revealed in the record” ’ ” shows why. (People v. Pearson, supra, 56
Cal.4th at p. 463.) In arguing for the ultimate penalty, the prosecution repeatedly
emphasized Penunuri’s role as the triggerman and the manner in which the
triggerman carried out the Molina and Murillo murders. A “significant factor in
aggravation,” according to the prosecutor was “the way” the Molina and Murillo
murders were “carried out”: “It was brutal, it was merciless, and it was


4      (See Death Penalty Information Center, Executions by Year (2018)
<http://www.deathpenaltyinfo.org/executions-year> [as of May 31, 2018]; id.,
Those Executed Who Did Not Directly Kill the Victim (2018)
<www.deathpenaltyinfo.org/those-executed-who-did-not-directly-kill-victim> [as
of May 31, 2018].) These internet citations are archived by year, docket number,
and case name at <http://www.courts.ca.gov/38324.htm>.

                                           17
unforgivable the way that Mr. Penunuri shot those boys while they slept. Didn’t
give them any chance or opportunity to either plea for their [lives], defend
themselves, or inform Dozer of any reason why they should not be killed.” The
prosecutor added that the “number” and “location” of their gunshot wounds “tell
us how brutal and how merciless those killings[s] were. And those are factors in
aggravation that you can take into consideration.” The prosecutor then relied on
the sequence of shots to argue that Penunuri shot Molina to eliminate a witness to
the Murillo murder, and proposed that the jury consider that “as another example
of a significant substantial factor in aggravation.”
       True: Penunuri’s death sentence would have been sufficiently justified by
the witness-killing special circumstance related to the Castillo murder. Yet the
question for us is not whether a jury could have sentenced Penunuri to death, but
whether there is a reasonable doubt that this jury would have done so in the
absence of the error. Time and again, the prosecutor highlighted Penunuri’s role
in the Molina and Murillo murders at the expense of the Castillo murder, which he
did not personally commit, and for which he was not even present.
       For example, the prosecutor warned that to sentence Penunuri to life in
prison without the possibility of parole “kind of places him on the same level as an
Arthur Bermudez, who was only used as a tool, if you will, to commit [the
Castillo] murder without actually being a triggerman in any way, shape, or form.
And Dozer deserves a little more than that. A lot more than that. Because he was
actually the triggerman.” Indeed, the prosecutor explicitly argued that Penunuri
and Joseph Castro, Jr. (who shot Castillo), should not be sentenced “on the same
level as an Arthur Bermudez or an Alejandro Delaloza who are in life in prison for
the rest of their [lives]. But those individuals were not the triggerman in these
respective cases.” Then, referring to Penunuri and Castro, the prosecutor
highlighted the contrast: “We have the defendants who are in fact the

                                          18
triggermen.” Even if the jury were to disregard the Castillo murder, the robberies,
and the other aggravating evidence offered against Penunuri, the prosecution’s
theory was that “even if we discount all of that, the way that [Molina] died . . . is a
factor in aggravation beyond compare which warrants the death penalty in and of
itself.”
           No one can reasonably deny the prosecution’s case for death relied
substantially on Penunuri’s role in the Molina and Murillo murders — a role that,
in turn, depended substantially on inferences from Delaloza’s unconfronted but
incriminating statements. Given the centrality of Penunuri’s precise role in those
murders, there is no basis for declaring the death verdict “ ‘ “surely
unattributable” ’ ” to the trial court’s serious confrontation clause error. (People v.
Grimes, supra, 1 Cal.5th at p. 723.)
           So the penalty verdict, like the firearm use enhancement, was based in
substantial part on the tainted assumption Penunuri was the triggerman. I would
reverse both and remand for further proceedings. (See People v. Jackson (1967)
67 Cal.2d 96, 100.) The court’s decision to affirm these aspects of the judgment is
a product of its failure to apply our harmless error test correctly. With respect, I
dissent.
                                                    CUÉLLAR, J.




                                            19
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Penunuri
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S095076
Date Filed: May 31, 2018
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Robert W. Armstrong

__________________________________________________________________________________

Counsel:

Stephen M. Lathrop, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Joseph P. Lee and E. Carlos Dominguez, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Stephen M. Lathrop
Law Offices of Lathrop & Villa
904 Silver Spur Road, #430
Rolling Hills Estates, CA 90274
(310) 237-1000

E. Carlos Dominguez
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 269-6120
